Wednesday, May 21, 2008

9th Circuit Deals a Blow to Military's Don't Ask, Don't Tell Policy

The opinion can be found at the following link:$file/0635644.pdf?openelement

In brief, all three judges on the panel found the policy to be constitutionally infirm.

The plaintiff raised both substantive due process and equal protection claims.

The two judges writing in the majority held as follows:

(1) Substantive due process claim: The judges concluded that Lawrence v. Texas requires heightened (intermediate) scrutiny of the law because it infringes on a fundamental right. Under that standard, as articulated by the judges, the law must (a) significantly further (b) an important governmental interest; and (c) the law must be necessary to further that interest, with no less intrusive means available that would further the interest. The analysis is to be done on an as-applied basis to each person impacted by the policy.

(2) Equal protection claim: The judges concluded that such a claim is subject only to rational basis scrutiny and that it survives such scrutiny (based on prior precedent in the Circuit).

The third judge would go further, holding as follows:

(1) Substantive due process claim: He would apply strict scrutiny.

(2) Equal protection claim: He would apply strict scrutiny, for two different reasons: (a) that gays and lesbians are a suspect class; and (b) the statute impinges on a fundamental right.

Thursday, May 15, 2008

California Supreme Court on Same-Sex Marriage

The opinion can be found here:

Here is my summary of the Court's holding:

(1) The Court held that it violates the California constitution to allow opposite-sex but not same-sex couples to marry, applying strict scrutiny for three different reasons:

(a) A fundamental right is involved (right to marry) under the due process and privacy clauses of the California constitution

(b) Sexual orientation discrimination is involved. Court holds that such discrimination is, like race and gender discrimination, subject to strict scrutiny under California's equal protection clause. Court further holds that you don't need to show current political powerlessness, nor do you need to show immutability.

(c) Fundamental right prong of California's equal protection clause

(2) The court held that it is unconstitutional to have a parallel scheme of"domestic partnerships." It leaves open the possibility that the legislature could change the name of "marriage" for everyone so that everyone gets a domestic partnership."

Wednesday, May 7, 2008

Michigan Supreme Court Decision on Domestic Partnership Benefits

In a 5-2 decision, the Michigan Supreme Court has held that the state's constitutional amendment providing that "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose" prohibits public employers in Michigan from providing health-insurance benefits to their employees' same-sex domestic partners.

Read the decision here:

Monday, May 5, 2008

Mildred Loving has died

Mildred Loving, who along with her husband fought Virginia's anti-miscegenation statute all the way to the U.S. Supreme Court in Loving v. Virginia, has died.

The following statement, released by Mrs. Loving last year, on the 40th anniversary of Loving v. Virginia, tells you all you need to know about this remarkable woman:

Loving for All

By Mildred Loving

Prepared for Delivery on June 12, 2007,The 40th Anniversary of the Loving vs. Virginia Announcement

When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.

We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.

Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Sunday, May 4, 2008

Legal Protections for Same Sexd Couples Under Israeli Law

In a decision that will likely be further reviewed, "The Tel Aviv Family Court rejected on Sunday the domestic violence suit of a man who claimed his male partner harassed him, on the grounds that according to the court's interpretation, Israeli law does not define same-sex couples as a legitimate family." Same Sex Couple Not Defined as Family, Jerusalem Post, May 4, 2008. What makes the decision interesting, and of potential relevance to law in the United States, was the basis of decision--grounded in both law and religion. The judge determined that the statute might not have been applicable. But his narrow interpretation might be open to question. More interesting was the constitutional aspect of the decision:

According to the judge, the problem lies in the wording of the law concerning the basic dignity and freedom of man. The first paragraph of the law states that human rights are to be respected according to the principles outlined in the proclamation of the state. The Declaration of Independence mandates "a Jewish state in the land of Israel that will be based on the principles of freedom, justice and peace, in the guiding light of the visions of the prophets of Israel." The prophets of Israel did not look favorably upon homosexual relationships.

Id. Stay tuned.