Supreme Court Bars Broadcast of Prop 8 trial

"Who are you? what's in your mind?/Behind the mask a mocking smile"

Just hours before the trial of the constitutionality of California's anti-marriage-equality Proposition 8 was set to commence, the Supreme Court of the United States has blocked the airing of the trial video on YouTube as well as the planned live streaming to other federal courthouses. See the AP story in the Sacramento Bee here. Perhaps the Court blocked this broadcast because they’d also previously blocked the disclosure of the identity of donors to the anti-marriage equality campaign in Maine. But there’s a difference between keeping something out of evidence and keeping identified witnesses in open court from being seen by the people of the nation. Keep in mind that this is the same Supreme Court on whom lawyers Ted Olson and David Boies are pinning their hopes for a successful outcome from this lawsuit.

Marriage Equality Defeated (for now) in Maine

Andrew Sullivan Misreads the Situation in the Pine Tree State

A majority of voters in Maine yesterday chose to repeal the state’s law allowing same-sex couples to get married before it even went into effect, the Bangor Daily News reports here. Following last year’s debacle of Proposition 8 stripping same-sex couples of the right to marry, Maine becomes the second state to have (almost) had equal state-controlled rights for lesbigay persons only to lose them to the expression of fears or prejudice at the ballot box.

Thus Andrew Sullivan is wrong to write in his blog that “in Maine, … gays do have equality but may now merely be denied the name.” Unless he is writing about the abstract moral equality that underlies claims to human rights, or the abstract political equality of persons and citizens ostensibly protected by the U.S. Constitution, Sullivan is simply wrong to assert that lesbigay people in Maine “have equality,” for several reasons.

First, same-sex couples in Maine are now relegated to state registered domestic partnerships but, unlike California’s domestic partnerships, these are decidely weaker than civil marriages. The Maine Department of Health and Human Services, has even cautioned in bold print that "[i]t is important to remember that a registered domestic partnership is NOT the same as a marriage and does not entitle partners to rights other than those for which the registry was intended. This registry is intended to allow individuals to have rights of inheritance as well as the rights to make decisions regarding disposal of their deceased partners remains."

Second, even if Maine attached all the same state-controlled rights, benefits, and obligations of civil marriage to domestic partnerships, the voters’ decision to deny marriage to same-sex couples imposes a legal burden on them that different-sex couples don’t face. When a married couple goes to another state, there is a well established body of interstate marriage recognition law that they can appeal to. Granted, the “Defense of Marriage Acts” (DOMAs) adopted in many states make it harder to invoke this body of law successfully. But same-sex couples in Maine now will face the additional hurdle of having also to argue that their non-marital status should count as a marriage for purposes of this body of law. Likewise, if Congress were to repeal the federal DOMA, which Barack Obama has said he supports, then married same-sex couples would automatically be governed by the estimated 1,138 federal laws that make marital status relevant; same-sex couples from Maine, however, would have additionally to try to argue that their domestic partnership, intentionally distinguished from marriage, should nonetheless be treated as a marriage for federal law purposes.

And third, Andrew Sullivan here seems to be making the same volte-face as the California Supreme Court did this past spring when it upheld Proposition 8 , which stripped same-sex couples in California of the right to marry. When Chief Justice Ronald George wrote for the Court in 2008 in striking down the marriage exclusion as violating the California Constitutionl, the Chief Justice penned eloquent passages about the importance of being included in the institution of “civil marriage” as such for the equality and dignity of lesbigay people. Yet when he wrote for the same court a year later and upheld California’s pernicious ballot measure, his reasoning seemed to many to hold that this was a sufficiently non-fundamental change to the state constitution – even though it targeted a minority group defined by a suspect classification for deprivation of a fundamental right, the right to marry – because the “sole” effect of Prop 8 was to deny same-sex couples the “designation” of “marriage.”

Andrew Sullivan seemed to appreciate the stakes when the California Supreme Court first invalidated the discriminatory marriage exclusion. In his blog mere days after the decision, he wrote:

“Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.”

Nothing has changed about the nature of equality, so it is not apparent to me why Sullivan seems to have changed his mind about equality in Maine.

DC Council Introduces Marriage Equality Bill

"Show your friends across the sea/It's a fair dance"

On Tuesday, October 6, the Council of the District of Columbia introduced legislation to allow same-sex couples to marry, the New York Times reports. The bill is expected to pass, but it could be subject to congressional override, setting up the prospect of potentially uncomfortable votes for Democrats in Congress, which under Republican "leadership" had for a decade (until 2002) barred DC from spending federal or local money to implement the District's domestic partnership law. If Congress manages not to intervene, it will be powerfully symbolic to see marriage equality come to the nation's capitol, in stronger form than merely recognizing valid marriages performed in other jurisdictions. Now if Congress would repeal DOMA!

Wiliams Institute Study Supports Inclusive ENDA

"When heterosexism strikes, strike back"

The U.S. House of Representatives held hearings today on H.R. 3017, the Employment Non-Discrimination Act of 2009 (ENDA), which would prohibit employment discrimination on the basis of sexual orientation and/or gender identity. Brad Sears, Executive Director of the Williams Institute, a national research center on sexual orientation and gender identity law and public policy at UCLA School of Law, testified in support of the bill.

Sears summarized the findings of a twelve-month research study conducted by the Williams Institute, which found widespread and enduring discrimination on the basis of sexual orientation and on the basis of gender identity by state and local government as well as in the private sector. These findings support the conclusion that Congress has the power to enact ENDA under Section 5 of the 14th Amendment, which grants Congress the authority (among other things) to enforce the guarantees of that Amendment's Equal Protection Clause.

Congress would assuredly have the constitutional authority to adopt ENDA under its power to regulate interstate commerce. Congress's Section 5 power is important, however, because it (and not the commerce power) would allow Congress to authorize private individuals who have been discriminated against by state governments to sue those governments for money damages to compensate them. Without that authority, states would be able to assert "sovereign immunity" as a shield against monetary awards under current constitutional law.

If you have not already done so, please let your Representative know that you want her or him to stand up for fundamental fairness and support the right of Americans of every sexual orientation and gender identity to work free of invidious discrimination. You can reach your Representative by dialing 202-224-3121 and giving the operator your zip code; ask her or him to support and to sponsor ENDA, H.R. 3017.


Disclosure: I am a Visiting Scholar at the Williams Institute this semester, as I was in Spring 2003, and I remain a member of the Institute's Faculty Advisory Committee; however, I was not involved in the preparation of this testimony or report.

LGBT Advocacy Groups Excluded from Suit Challenging Prop 8

"And you just might need a friend"

Federal court trial judge Vaughn Walker has scheduled trial in the challenge to Proposition 8's ban on California's allowing same-sex couples to marry for January 2010. See the San Jose Mercury News story here. He also rejected the attempts of LGBT advocacy groups to intervene to challenge and an anti-gay group to defend Prop 8 as direct parties, indicating that they could instead present their views through amicus curiae ("friend of the court") briefs. The City and County of San Francisco was allowed to intervene, but only for limited purposes according to some news accounts. Let's hope that's enough to ensure the plaintiffs challenging Prop 8 establish an adequate factual basis for their claims.

Portugal's Marriage Exclusion Upheld

"Something good could happen/Something good could have happened"

In a closely divided decision, the Constitutional Court of Portugal voted 3 to 2 to uphold that country's restriction of marriage to male-female couples against a challenge based on a provision in the Portuguese Constitution forbidding sexual orientation discrimination, reports the Associated Press. I believe this is the statement from the Court's web site (but I do not read Portuguese). Unless the Court reverses course some time in the future or the European Court of Human rights accepts and agrees with the appeal of the lesbian couple denied a marriage license, marriage equality there will have to await the approval of Portugal's Parliament, which does not appear to be an imminent prospect.

Delhi High Court Curtails Sodomy Law

"Times are changing for the better"

Today the High Court of Delhi at New Delhi sharply limited Section 377 of the Indian Penal Code. Section 377, which prohibits "carnal intercourse" and has come to be known as the "unnatural offences" section, was facially neutral but in practice targeted LGBT persons. The Court held it unconstitutional insofar as it criminalized consensual sex acts between adults in private. In closing, the Court wrote:

"If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that of
'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as “deviants' or
'different' are not on that score excluded or ostracised.
"Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and non-
discrimination. ... In our view, Indian
Constitutional law does not permit the statutory criminal law
to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is anti-
thesis of equality and that it is the recognition of equality
which will foster the dignity of every individual."

Supreme Court Repudiates Strip Search of 13-Year-Old, Denies Redress

"Will you strip for me?"

In Safford Unified School District No. 1 v. Redding, the U.S. Supreme Court today held, in an opinion by the imminently retiring Justice David Souter, that school officials violated the Fourth Amendment's ban on unreasonable searches and seizures by strip searching 13 year old Savanna Redding to look for common pain relievers. Once again proving his willingness to endorse outrageous legal conclusions, Clarence Thomas was the only Justice to dissent from this holding. Regrettably, the majority further concluded that the law was not sufficiently clear to justify allowing Savanna to seek money damages from the school officials. Cheers to Justice Stevens and Justice Ginsburg for appreciating the evidentness of the conclusion that “a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.” The Supreme Court remanded the case for the lower courts to consider whether Redding could seek damages from the school district itself, but recovering from a local governmental unit like the school district is something the Court's precedents have made increasingly difficult.

Prop 8 Ruling Tuesday, May 26

"The waiting is the hardest part"

The California Supreme Court has given notice that it will hand down its decision in the challenge to Proposition 8 on Tuesday, May 26. Try not to let this preoccupy you during the Memorial Day weekend.

NY Assembly Votes for Marriage Equality

"It's up to you"

As reported in the New York Times, the New York state Assembly has voted 89-52 in favor of a bill opening civil marriage to same-sex couples. Proponents and opponents of the measure, which Governor Patterson supports, are now concentrating their efforts on the state Senate, where the defeat or passage of the bill is uncertain. Will New York become the sixth state in the U.S. to afford same-sex couples marriage equality?

Marriage Equality In Maine

"There's no stopping us now/Our love is here to stay"

The Associated Press has reported that Maine has just become the fifth state to allow same-sex couples to marry. Like Vermont, they did so through a vote of their state legislature. The Northeast is once again proving itself a leader on liberty and equality, and it's easy to understand why so many people feel a sense of momentum behind the drive for marriage equality.

Maine joins move towards marriage equality

"I must be dreaming"

The Associated Press has reported that the Maine legislature has voted in favor of a bill to allow same-sex couples to marry. If they vote "yes" a second time and Maine's governor, who has not decided whether to sign it, approves it, Maine would become the first state allowing same-sex couples to marry and the fourth in New England!