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Government paid compensation to servicemembers who were discharged under their ban on gays in the military (which was repealed in 2000).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!