Thursday, October 11, 2007

Marriage Symposium

Last fall, the Rutgers Law Review held a symposium, "Same-Sex Couples and the Exclusive Commitment," inspired by the New Jersey Supreme Court's decision, Lewis v. Harris, 908 A.2d 196, Rutgers website (N.J. 2006), which held that New Jersey must provide same sex couples with marriage or a legal equivalent. If you're keen to read about marriage issues, the symposium articles are available here.

The articles present a range of opinion, but first one I looked at (George W. Dent, Jr., How Does Same-Sex Marriage Threaten You?, 59 Rutgers L. Rev. 233) got my dander up. It took the position that same-sex marriage is a threat to society because heterosexual marriage is important for reproduction and child-rearing and, ultimately, social stability. Well, it was my bad luck for choosing that article: I'd thought it would finally explain to me how same-sex marriage threatens heterosexual marriages (the author didn't really mean to include me in the "you" of his title), but it didn't.

I suppose we all choose what to believe based on our existing beliefs and assumptions. I believe the studies that say that kids do pretty well with gay or lesbian parents. On the other hand, Prof. Dent believes the people who say that those studies are flawed. He believes that "Children conceived by artificial reproductive technologies and reared apart from one or both biological parents 'hunger for an abiding paternal presence.'" (59 Rutgers L. Rev. 233, 242)

In this instance, I have a lot of social scientists on my side. The American Psychological Association filed an amicus brief in Lewis v. Harris (as it has done in many cases, including the marriage equity cases here in Washington). The APA summarizes:
APA's brief provides the Court with the scientific and professional literature pertinent to the issues before the Court. * * * The brief addresses the extensive psychological literature that has found no difference between same-sex and heterosexual couples on characteristics such as levels of intimacy, feelings of commitment and desire for relationships * * * .

Additionally, the brief addresses the large number of children raised by lesbians and gay men, both in same-sex couples and as single parents. APA takes the position that ending the prohibition on marriage for same-sex partners is in the best interest of the children being raised by these parents as the children will benefit from the legal stability and other familial benefits that marriage provides. The brief cites empirical research which shows that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents.

Unlike past APA briefs supporting same-sex couples, this brief also addresses the social and psychological benefits – to both gay and heterosexual people – of marriage as an institution. The brief states that allowing same-sex couples to marry would give them access to the legal, social, and economic support that already facilitate and strengthen heterosexual marriages as well as end the antigay stigma imposed by the State through its same-sex marriage ban. Also addressed are invalidities in the research presented by opponents of same-sex marriage.

In summary, the APA brief states that there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.
The full brief is available here.

This raises issues of cognitive authority. Why do I believe "my" experts while he believes his? He did have footnotes to support his statements, after all -- it's not that he made it all up. I'm not inclined to believe his experts because I'm committed to believing that I'm OK, my relationship is OK, and my relationship doesn't really jeopardize society. For his part, he's not likely to believe the experts cited in the APA's brief. Before believing them, he would probably counter that the APA (or at any rate the APA's leadership that agrees to amicus filings) has been taken over by benighted fools who can't judge research, or mischaracterize results to suit the GLBT community.

What does it take to change one's beliefs, to be open to the long string of studies the APA cites rather than the books and articles Prof. Dent cites?

The mayor of San Diego changed his mind, apparently because was able to generalize from his lesbian daughter to all the people excluded from the straights-only marriage law. Sanders changes mind on gay marriage: Mayor supports effort to overturn state ban, Union-Tribune, Sept. 20, 2007.

Not everyone will have an LGB or T family member -- but more and more people know that they know, respect, and like bent folks, and that makes them more open to changing their beliefs about social science, policy, and law.

Speaking of developing public awareness:

Thanks to Outlaws for today's activities in celebration of National Coming Out Day! It was great to see people around the law school wearing badges proclaiming their support of LGBT rights. I didn't get a chance to pick up my sticker until late in the day, but I have it now: "I DO Support Marriage Equality."

Friday, September 7, 2007

Bathroom News

Two items in this morning's Seattle Times:
  • Mall-restroom evictions raise transgender ire, Seattle Times, Sept. 7, 2007. Two ftm transgendered people used a men's room at Pacific Place and were hauled out by security. They were in town for the Gender Odyssey (an FTM conference), and so about 40 others went to the mall as a group for a pee-in.
  • Ellen Goodman offers some sense on the Craig mess: When it comes to Craig, we must separate the law from the lewd, Seattle Times, Sept. 7, 2007.
    Yet the stings go on. Craig was only one of 40 arrested since May in Minneapolis. There were 45 arrested in the Atlanta airport this year. How many elsewhere? There must be saner ways to keep a restroom from becoming a meeting ground, better than using a dubious law that shames men into pleading guilty for the same reason Craig did: humiliation and the fear of exposure.

Friday, August 31, 2007

The Senator Craig Transcripts

So, the transcripts of the post arrest interview of Senator Larry Craig have been released. See Transcript of Police Interview of Sen. Larry Craig, (Aug. 30, 2007). The entire tapes transcript is worth a read. They remind us that the promise of Lawrence v. Texas, 539 U.S. 558 (2003) has still a ways to go. But the most interesting aspect for me was the way in which the solicitation was made and the arrest pursued:

DK: Okay Urn, I just wanna start off with a your side of the story, okay. So, a

LC: So I go into the bathroom here as I normally do, I'm a commuter too here.

DK: Okay.

LC: I sit down, urn, to go to the bathroom and ah, you said our feet bumped. I believe they did, ah, because I reached down and scooted over and urn, the next thing I knew, under the bathroom divider comes a card that says Police. Now, urn, (sigh) that's about as far as I can take it, I don't know of anything else. Ah, your foot came toward mine, mine came towards yours, was that natural? I don't know. Did we bump? Yes. I think we did. You said so. I don't disagree with that.

DK: Okay. I don't want to get into a pissing match here.

LC: We're not going to.

Transcript, supra.

So allow me to be a bit provocative: As the tapes make clear, the state continues to take as its basic premise that same sex solicitation is closer to prostitution and other acts of lewdness, than it is to the casual solicitation of affective (sexual) interest between people of different sexes (and specifically between adult men and women). The state spends little time policing against any but the rudest forms of solicitations of sexual interest between men and women. The state devotes a tremendous amount of energy on vice--both sex for hire (whatever the sex of the participants) and sex between (in this case) men. That conflation ought to trouble us today far more than it did back in the days before Lawrence. Until the expression of sexual desire among anyone but heterosexual couples is uncoupled from the prostitution/lewdness construct, the expression of non conformist sexual desire will remain suspect, irrespective of the availability of the safe harbors" of civil unions and "gay" spaces.

Thursday, August 30, 2007

Same-Sex Marriage a Right Under Iowa Constitution

A state trial court in Iowa ruled today that same-sex couples have the right to marry. The decision is grounded in the due process and equal protection clauses of the Iowa Constitution. The decision can be downloaded at the following link:

Wednesday, August 29, 2007

“I am not gay. I never have been gay.”

One thing that is striking to me in the controversy around Senator Larry Craig (R-ID) and his alleged solicitation of sex in an airport men's room is his statement yesterday:
"I am not gay. I never have been gay."
Sen. Craig gives up four Senate committee seats; colleagues call for resignation, Idaho Statesman, Aug. 29, 2007.

It raises the question: what is it to be gay? Could the allegations about his seeking anonymous sex in a men's room be true and his statement that he's not gay also be true?

They say (I don't have a citation handy) that the large majority of men who sexually abuse boys identify as straight. It seems plausible to me that that many men who seek anonymous sexual encounters with other men in restrooms, parks, etc., might likewise identify as straight.

On the other hand, it seems quite plausible that men could identify as gay and not have sex with men (let alone anonymous sex in public places).

Another question raised by Sen. Craig's statement is why he would so vehemently deny being gay. Well, because he probably sees it as shameful -- indeed more shameful than either (a) being caught soliciting anonymous sex or (b) having such poor judgment as to plead guilty to a crime he didn't commit without consulting counsel (which is what he says he did).

Tuesday, August 7, 2007

Interested in Putting Up a Post of Your Own?

I have designed Bent Law to be a conversational blog rather than a one-way soap box.

Anyone is free to post a comment about an existing post—just click on the word "comment" at the end of a relevant post and follow the instructions.

Moreover, if you would like to put up a new post on a topic that is germane to this blog, just send me an email message with your name and email address and I will be more than happy to add you on as an authorized author! (To send me an email, just click on my name on the list of contributors on the right-hand side of the screen, and then click on the word "email" under contacts when my profile pops up).

Saturday, August 4, 2007

10th Circuit Holds Oklahoma Adoption Invalidation Law Unconstitutional

In 2004, Oklahoma enacted a law that provided in pertinent part that the State of Oklahoma "shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction."

On August 3, 2007, the U.S. Court of Appeals for the Tenth Circuit affirmed a trial court decision striking down the statute as unconstitutional under the Full Faith and Credit Clause of the U.S. Constitution. The opinion discusses the distinction between the full faith and credit that must be given to sister-state laws in making choice-of-law decisions (minimal) from the full faith and credit that must be given to sister-state judgments such as adoption decrees (exacting).

The opinion can be found at the following link (although it is 37 pages long, most of it is dedicated to standing; the merits of the case are addressed on pages 25-37 of the opinion):

Friday, August 3, 2007

The Same-Sex Marriage Debate and Indian Country

I came across the law review title "Same-Sex Marriage, Indian Tribes, and the Constitution," and couldn't resist skimming it (Matthew L.M. Fletcher, 61 U. Miami L. Rev. 53 (2006), on Westlaw here).

The author begins with a 19th century state case recognizing a polygamous marriage among Chippewa Indians because the tribe at that time recognized such marriages. He uses that as a springboard into the same-sex marriage debate and what it could possibly mean for tribal sovereignty. Pieces of the puzzle:
  • After Goodridge two lesbians applied for (and were denied) a marriage license on the Cherokee reservation. Their appeal was dismissed on procedural grounds.
  • The Navajo Nation passed a Defense of Marriage Act.
  • The federal DOMA explicitly mentions Indian tribes as sovereigns that don't have to recognize marriages recognized by other states and tribes.
  • Drafts of the proposed constitutional amendment to preserve marriage as heterosexual only do not mention Indian tribes.
Much of the article is speculative -- what if a constitutional amendment DOMA passes? what if there were a federal law requiring recognition of same-sex marriages, what if some tribes recognized such marriages? -- so speculative that I had a "so what?" reaction. But it is a good reminder that we're looking at a lot more sovereigns than 50 states, DC, and the federal government.

If someone registered as a domestic partner in Washington State is hurt on the Yakama Nation reservation and taken to a clinic there, does the partner get to visit and make decisions?

Monday, July 30, 2007

British Government Compensates Discharged Gay Personnel

The British Government paid compensation to servicemembers who were discharged under their ban on gays in the military (which was repealed in 2000). According to the British Government, the compensation was for violating the privacy of servicemembers who were the targets of undercover investigations and entrapment operations. Read the story here:

Quite a contrast from current US policy, which not only bans openly gay individuals from serving in the military, but also requires discharged gay servicemembers to repay the government for the tuition costs that the government paid on their behalf. See, e.g., Hensala v. Department of the Air Force, 343 F.3d 951 (9th Cir. 2003).

Data on Travelers' Sexual Orientation Part of Pact to Fight War on Terror

Under an agreement entered into between the United States and the European Union, airlines flying passengers from Europe to the United States are now required to share, among other things, data on the passengers' sexual orientation.

Read about the details here:

Sunday, July 29, 2007

Legal Challenge to Seattle Executive Order Recognizing Same-Sex Marriages

In 2004, Seattle's Mayor signed an executive order directing all City departments to recognize same-sex marriages entered into by its employees in other states or countries for the purpose of granting employee benefits. The executive order can be found here:

In response, the California-based Pacific Justice Institute ( filed suit, claiming that the Mayor's actions violated Washington's Defense of Marriage Act. In pertinent part, the act (R.C.W. 26.04.010) provides as follows:

"Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable."

The trial court rejected the challenge. PJI filed an appeal, but then put their appeal on hold pending the Washington Supreme Court's ruling on the constitutionality of Washington's Defense of Marriage Act. After the Washington Supreme Court upheld the constitutionality of the Act, PJI revived its appeal, which was recently argued before the Washington Court of Appeals.

You can find the Mayor's public defense of the executive order's constitutionality here: The first part of his defense--that the Defense of Marriage Act is unconstitutional--has been rejected by the Washington Supreme Court (although the Washington Supreme Court did not reach its constitutionality under the Federal constitution, only the state one). But the second part of his defense would still seem to hold: that nothing in the Act purports to preempt a city law such as the executive order.

It seems like a no-brainer of a case, but I have not been able to get my hands on any briefs in the case. Any thoughts on the issue?

Saturday, July 28, 2007

Negligent Infliction of Emotional Distress

Courts sometimes limit the category of bystanders who can recover for NIED to the victim's "family members." Is a same-sex domestic partner a "family member" in this context?

See Gain v. Carroll Mill Co., Inc., 114 Wash.2d 254, 787 P.2d 553 (1990) (dissent).

"There is another, but separate point which requires discussion. One of the fundamental issues in this type of case is determination of the class of persons whose peril causes the mental distress. In other words, what was the relationship of the plaintiff to the victim? That question should pose no issue here because the plaintiffs were father and brother of the decedent.
If recovery is allowed, this relationship is a protected one. 3 F. Harper, F. James & O. Gray, Torts § 18.4, at 690 (2d ed.1986).

Nonetheless, the majority causes substantial confusion for future cases. The majority haphazardly refers to the relationship as involving a “family member,” a “loved one,” a “relative,” and the “victim.” The majority provides no guidance as to the legal meaning of these imprecise and unnecessary categories. I assume that the majority's loose language will, someday, require us to decide whether a pet *267 is a family member or a loved one. There is a split of authority on that one. Roman v. Carroll, 127 Ariz. 398, 621 P.2d 307 (1980) holds no; Campbell v. Animal Quarantine Station, 63 Hawaii 557, 632 P.2d 1066 (1981) holds yes."

Thursday, July 26, 2007

"Unintended Consequences" of Gay Marriage Bans

In the past several years, numerous state electorates have amended their state constitutions so as to prevent both their legislatures and their courts from extending the right to marry to same-sex couples. Some states have gone even further, banning not just marriage, but any other type of legal status that provides same-sex couples with some or all of the rights of marriage, such as civil unions or domestic partnerships. Consider, for example, this amendment to the Ohio Constitution, enacted in 2004:

"Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

Recently, a man who physically assaulted his live-in girlfriend and who was indicted for domestic violence invoked the second sentence of this amendment to argue that the state's domestic violence law was unconstitutional to the extent that it applied to people like himself and his girlfriend. His argument was that the statute—which applies not only if the victim is the accused's legal spouse but also if she is "living as a spouse"—violates the second sentence of the statute in that it created "a legal status...approximat[ing]...marriage."

In State v. Carswell, the Ohio Supreme Court rejected this argument, reasoning that the intent of the second sentence of the constitutional amendment was to prevent the state from circumventing the command of the first sentence by creating a status "similar to marriage," such as a civil union. The dissent, however, would rely on the plain text of the amendment to hold the statute unconstitutional, although recognizing this as an "unintended consequence" of the amendment. The opinions can be found at:

Which of the opinions is more persuasive? Which of the opinions is a more favorable one from a gay rights perspective? Most people would say that the majority opinion is more favorable, but is it really? Isn't the dissent's opinion, which forces the broader electorate to deal with the "unintended consequences" of the constitutional amendment, more likely to cause voters in Ohio to reconsider and perhaps vote to repeal such an amendment? Indeed, concerns over such "unintended consequences" made Arizona the first state to reject such an amendment, with many of the "no" votes coming from senior citizens concerned that such an amendment would ban laws that allowed heterosexual senior citizens to enter into domestic partnerships (laws designed to allow them to get some of the benefits of marriage without having to give up some social security benefits).

State of Washington's Domestic Partnership Law

On July 23, 2007, at 8 a.m., gay and lesbian couples (along with couples in which one of the two people is 62 years of age or older) were allowed to register as domestic partners under a newly enacted law in Washington State. Details about the law—including the text of the law itself—can be found at the following website:

The law provides a limited set of rights for couples who register as domestic partners, including:
  • the right to visit one's partner in the hospital
  • the right to make medical decisions for one's partner
  • the right to receive information from a partner's health care providers about that partner's condition
  • the right to administer the estate of a partner who dies without a will
  • inheritance rights if one's partner dies without a will
  • the right to be listed on a deceased partner's death certificate
  • the right to authorize a partner's autopsy and to receive copies of a partner's autopsy reports and records
  • the right to control the disposition of a deceased partner's remains (as well as the right to make anatomical gifts)
  • the right to be buried as a couple
  • the right to seek damages in a civil action for a partner's wrongful death

The proponents of the new law plan to add additional rights in future legislative sessions. What rights (and duties) do you think should be added next (keeping in mind that the state legislature can only address state, not federal, rights)?

As someone who specializes in evidence law, a right that I would like to see added is the right to prevent your domestic partner from being forced to testify against you in court, as well as the right to prevent one's former domestic partner from testifying about confidential communications made between one another when you were "partnered" (that word doesn't roll off the tongue quite like the word "married," does it?).

What else should be on the high priority list? If you could pick one right or duty added in the next legislative session, what would it be?

Welcome to Bent Law!

The purpose of this blog is to provide a forum to discuss legislation and judicial decisions that deal with the rights of sexual minorities, a subject that I teach at the University of Washington School of Law. While designed as a forum for faculty and students at the University of Washington School of Law and other law schools, practicing attorneys and non-attorneys who are interested in discussing these issues from a legal perspective are encouraged to participate as well.

Why the name "Bent" Law for this blog? There are a few reasons: (1) it is the opposite of the word "straight"; (2) it is British slang for "gay"; (3) I like it better than the word "queer," and I prefer it to alphabet soup terms like GLBTQ...; (4) it is the name of a song by Matchbox 20 that I am rather fond of; and (5) "Gay" Law was already taken by someone else!