hunter of justice

Hearing today on federal employee benefits for same-sex partners

The Subcommittee on Federal Workforce of the House Oversight Committee will hold a hearing today at 2 pm on HR 2517, the Domestic Partnership Benefits and Obligations Act. This is the bill introduced by Rep. Tammy Baldwin that would treat same-sex domestic partners the same as married couples for purposes of the law governing federal employees.

Witnesses will include Congresswoman Baldwin, OPM Director John Berry and Williams Institute Research Director Lee Badgett.

UPDATE - A video of the hearing will be made available on the subcommittee web page.

Openly gay man runs for office in India, as cultural change intensifies

From the Washington Post, following up on last week's decision by the High Court of Delhi declaring India's sodomy law unconstitutional:

Popping out of an auto rickshaw, Manohar Elavarthi unloaded a backpack stuffed with protest posters. Soon he would be rushing to a street demonstration, one that would bring together low-caste Dalit activists, Gandhians, cross-dressers and members of domestic workers unions.

Elavarthi aspires to be the first openly gay man elected to a major political office in India, like Harvey Milk in the United States. Elavarthi is credited with being the first gay figure in India to build a mainstream political coalition across a wide spectrum of historically marginalized groups.

"Our dream for Indian politics is to build a common front of lesbians, untouchables, eunuchs and low-paid workers -- people who really need a voice in this country," said Elavarthi, who has received death threats for his views, largely from right-wing religious groups and police. "India -- the new India -- is really changing. We need to build a party around social justice for minorities. It would be a sign that India is a true secular democracy."

India, a nation of 1.1 billion people, is in the midst of an unprecedented debate over homosexuality, part of a wave of social change led by the younger generation in this traditional society. Modern India's youths are more economically mobile and independent than any generation before. Across the country, there is growing political pressure from a diverse coalition of college and law students, activists, artists and even mainstream politicians to overturn laws banning homosexuality.

In a groundbreaking ruling issued Thursday, the Delhi High Court decriminalized homosexuality[;] celebrations were held in the streets of major cities....

In a major shift, the government recently called a meeting of top officials to talk about the 150-year-old statute, known as Section 377. New Cabinet ministers appointed after the recent elections could bring "new thinking" on the law, Home Minister P. Chidambaram said last week, the Indian Express newspaper reported. Those in favor of amending the law argue that it violates human rights enshrined in the constitution. They also say that keeping gays closeted limits awareness about safe sex. HIV/AIDS affects an estimated 2.5 million people in India.

In the last weekend of June, hundreds of gay rights supporters danced and marched in the sweaty summer heat of New Delhi and in the southern cities of Chennai and Bangalore. One parent held up a sign that read "Proud Mother." Some young Indians chanted "Long Live Queeristan." Others sang "Gay Ho" to the tune of "Jai Ho," the megahit from the Oscar-winning movie "Slumdog Millionaire."

Cross-dressing men were decked out in sparkling saris and nose rings. It was the second year for the pride parades, and more people attended this time around. A fresh crowd of younger gay activists and heterosexual supporters of the cause reportedly organized the event.

In Bangalore and outlying rural areas, Elavarthi organized a week-long slate of events in the run-up to the marches, including the country's first gay cricket match, a dialogue with Dalit leaders, a seminar on religion and sexual minorities, and several film screenings and mixers in villages. The gay rights movement in India was once dominated by artists and members of the upper castes. But the movement now seems to be breaking down class divisions and uniting youth culture around human rights concerns....

In daily life, gay Indians suffer forced marriages, high depression rates, physical assault and blackmail -- often by police and underground rings on the Internet. In this nation where most families with the means hire domestic help, middle- and upper-class gay Indians wake up early to move separately into different rooms before household staff arrive. In much of India, parents still choose their children's future spouses, taking into account factors such as caste, skin tone, class and religion. But in some pockets, young Indians -- especially professionals living away from their parents -- have the freedom to decide for themselves.

Elavarthi was born to a farming family in a village in southern India. By the time he finished high school, he said, he knew he was attracted to men. He later realized he was bisexual. "But I dared not tell anyone," he said. After moving to the sprawling city of Mumbai, Elavarthi found a male lover and started living with him.

Elavarthi quickly became an activist and started a counseling center. He also founded a group called Sabrang, which means "all colors" in Hindi. The group reaches out to people from non-English-speaking backgrounds and from lower castes. Elavarthi said he hopes to run for office in next year's local elections and encourage other young gays and lesbians to do the same.

Supreme Court denies cert in school religious club case

In a little-noticed order on the last day of its 2008-2009 term, the Supreme Court denied cert last week in Truth v. Kent School District, a Ninth Circuit case in which a high school religious club sought to register with the school in order to use school facilities. In its opinion (542 F.3d 634, rehearing denied 551 F.3d 850), the Court of Appeals rejected the club's claim that enforcement of an anti-discrimination law constituted religious discrimination. The proposed charter filed by Truth restricted membership to those "complying in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible." Voting members also had to sign a "statement of faith" and pledge "acceptance of Jesus Christ as my personal savior."

The school district denied recognition to Truth in part because of the implications of its name that other religions were false and in part because the membership criteria discriminated against non-Christians.  However, the Court of Appeals reversed summary judgment for the district on the ground that there was a triable factual dispute over whether the district consistently applied its anti-discrimination policy to all student clubs equally.

The cert petition filed by Truth challenged the Ninth Circuit's ruling that Truth had no viable claim under the Equal Access [to Schools] Act, absent the possible selective enforcement argument. Truth asserted that under that ruling, "schools are free to discriminate against student religious groups because of their membership criteria." Truth also argued that the Court of Appeals' rejection of its expressive association claim failed to properly apply Boy Scouts v. Dale.

Denials of certiorari in and of themselves do not create precedent, so one should not read too much into this one.  It does, however, seem to bode well for the defendants in Christian Legal Society v. Kane, in which the Ninth Circuit upheld judgment for UC-Hastings Law School (Mary Kay Kane was then dean), rejecting similar claims of expressive association and First Amendment rights by CLS. 2009 WL 69339. The Court of Appeals summarily affirmed a district court decision, citing simply its ruling in Truth v. Kent. Any risk that the latter opinion will be overturned is now over.

Meanwhile, CLS filed a cert petition in its case, which is before the Supreme Court this summer. Based on Truth v. Kent, the prospects for another denial of review, leaving in place a good decision, seem good.

Happy Anti-Colonialism Day!

...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States....

Dellinger on Souter on social change and the Supreme Court

By Walter Dellinger, from Slate, writing on the role of public opinion in Supreme Court decision-making:

...It was not a mere coincidence that when the court stuck down homosexual sodomy laws in Lawrence v. Texas in 2003, the number of states that still had such laws was about the same as the number of states that still had de jure school segregation when Brown was decided—in each case, the retrograde states made up about one-fourth of the country. In contrast, when the court sustained state laws banning the use of lethal medication in Washington v. Glucksberg, the rejected claim of a right to physician-assisted suicide had not yet been recognized by even a single state.

What makes these questions so timely is that David Souter ... addressed these issues in a very powerful way just [before leaving the Court] in an passage that may well have been intended as a valedictory message to the court and a caution to those who litigate on behalf of individual liberty. In his dissent in the DNA case, District Attorney's Office v. Osborne, Souter wrote extensively about issues of substantive liberty that he did not need to address in order to decide the case before him. He obviously had some things he really wanted to say before hanging up his black robe.

In his essay-within-an-opinion, Souter clearly had the sweep of the court's future in mind, and not just any single issue. It is still hard to avoid the conclusion that one issue in his mind was gay marriage. His carefully nuanced message both defends the legitimacy of judicial recognition of "non-traditional" rights and cautions against a premature quest for national judicial rules.

Souter, recognizing the value of "continuity with the past," accepts the proposition that tradition is a "serious consideration" in judging whether a practice is "outside the realm of reasonable governmental action." He rejects, however, the notion that tradition defines and limits the scope of the liberties entitled to judicial protection against hostile legislation.

A true originalist, Souter refuses to limit individual rights to the time-bound set of liberties that the Framers of the 14^th Amendment would have include had they chosen to adopt a specific list. The short answer is that the Framers did not so choose. They deliberately wrote with a broad brush and left particular applications to the future. In carrying out that mandate, Souter writes, the court must look to "widely shared understandings within the national society" that can change "as interests claimed under the rubric of liberty evolve into recognition."

Having defended the concept of evolving liberty, Souter then turns to the important question of when it would be "premature for the Judicial Branch to decide whether … a general right should be recognized."

"The beginning of wisdom," he writes, "is to go slow." Before declaring "unsympathetic state or national laws arbitrary to the point of being unconstitutional," he writes, a wise court will "recognize how much time society needs in order to work through a given issue."

His opinion then takes what seems to be an extraordinarily personal turn. He may be speaking of himself (or his rural neighbors) when his says that "[w]e can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally." Sometimes, he says, "an attachment to the familiar and the limits of experience" limit "an individual's capacity to see the potential legitimacy of a moral position."

So, too, it is with the broader society, which "needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim." Souter's final message to his conservative colleagues is that conceptions of liberty evolve. And his last caution to those litigators pushing the frontiers of liberty is that nations, like individuals, need time to assimilate new thinking....

Obama promises "robust" conscience clause exemption for health care workers

Both the Washington Post and the Catholic News Service are reporting that President Obama assured a group of religion writers that he would insist on strong conscience clause exemptions for health care workers who object to certain medical procedures. Shortly before the end of the Bush administration, HHS issued new regulations that would prevent any HCW or hospital from being required to perform an abortion or other procedure to which they had a moral objection. The ACLU filed a lawsuit to stop the regulations from taking effect. Obama withdrew them, but is now promising that his administration's version will also be "robust," although only in the sense that it will be equivalent in strength to the status quo prior to the Bush regs. Especially given the attention being paid to religious exemptions in the same-sex marriage context, I think it's going to be important to watch how the new administration conceptualizes the trade-offs between rights in framing the terms of an exemption.

Here's the more detailed Catholic News Service report:

President Barack Obama told a round table of religion writers July 2 that he continues to be profoundly influenced by the late Cardinal Joseph Bernardin of Chicago, whom he came to know when he was a community organizer in a project partially funded by the Catholic Campaign for Human Development.

Obama said his encounters with the cardinal continue to influence him, particularly his "seamless garment" approach to a multitude of social justice issues. He also told the group of eight reporters to expect a conscience clause protection for health care workers currently under review by the administration that will be no less protective than what existed previously....

The president [said]  that he expects an ongoing review of conscience clause regulations will result in a continuation of protections that have long existed, allowing people who are morally opposed to abortion or contraceptives to decline to provide them in the line of work without repercussions.

Obama said in some ways he sees his first meeting with the pope as the same as any contact with a head of state, "but obviously this is more than just that. The Catholic Church has such a profound influence worldwide and in our country, and the Holy Father is a thought leader and opinion leader on so many wide-ranging issues. His religious influence is one that extends beyond the Catholic Church."...

On conscience clauses, the president said he has consistently believed in them. As a state legislator, he said, he supported "a robust conscience clause in Illinois for Catholic hospitals and health care providers." Soon after he took office as president, the administration reversed what Obama described as "eleventh-hour change(s) in conscience clause provisions that were pushed forward by the previous administration."

According to Obama, the Bush administration change, which took effect two days before the new president was sworn in, hadn't been "properly reviewed and thought through, and he added that there were some concerns about how broad it might be and what its manifestations would be once implemented."

In general, that change codified longtime federal statutes that prohibit discrimination against health professionals who decline to participate in abortions or other medical procedures because of religious or moral objections.

In his speech at Notre Dame, Obama called for a "sensible conscience clause." and said he wished to "honor the conscience of those who disagree with abortion."...

"We will be coming out with, I think, more specific guidelines," he said. "But I can assure all of your readers that when this review is complete there will be a robust conscience clause in place. It may not meet the criteria of every possible critic of our approach, but it certainly will not be weaker than what existed before the (Bush administration's) changes were made."...

Will the New Hampshire religious exemption become a model for new marriage laws?

From The National Journal:

...When the New Hampshire law goes into effect Jan. 1, it will override the state's employee nondiscrimination laws that protect gays and lesbians. Religious organizations will be able to deny gay couples housing designated for married people and marriage counseling, and fraternal societies like the Knights of Columbus won't have to offer benefits to their employees' same-sex spouses, according to Robin Fretwell Wilson, a law professor at Washington and Lee Law School who lobbied for the New Hampshire protections.

In the Granite State, such exemptions were crucial to the bill's passage. Gov. John Lynch, who personally opposes gay marriage, refused to sign the bill until wide-ranging religious exemptions were added....

"At some point you've got to say, 'We're gonna get that law, and we've got to salvage religious liberties as the next best option,'" said William Duncan, president of the conservative Marriage Law Foundation....

Leading the charge on conscience exemptions are a half-dozen lawyers, some of whom support gay marriage and others focused on safeguarding religious freedoms. They lobbied Lynch this spring and even pressed for broader exemptions that would have allowed small-business owners to deny services to gay couples ...

In a May 22 letter to Lynch, law professors Andrew Koppelman (Northwestern), Michael Perry (Emory) and Douglas Laycock (University of Michigan), along with Marc D. Stern of the American Jewish Congress, argued that the exemptions would not "enshrine bigotry" but rather "enshrine religious liberty and the live-and-let-live traditions of the American people."

Many of those same lawyers and others are trying to push the needle this summer in New York, where they are encouraging lawmakers to include religious protections in a same-sex marriage bill there....

"In California, you only needed to flip 2 percent of voters," Laycock said, referring to Proposition 8's victory last November by a 52-48 margin. "If you put in the religious exemption, I think you flip that 2 percent."

That still leaves a sizable minority who support marriage restrictions, and talk of a truce may be premature. "This doesn't go to our deepest concern, which is that changing the definition of marriage is bad for society, because we believe children need a mother and a father," Duncan said. "I think the ideological polarization is a little bit sharper than some people think."...

Perry update: Judge Walker sets initial dates for trial preparation in Prop 8 challenge

In a hearing this morning in San Francisco that was originally scheduled for consideration of a possible preliminary injunction, U.S. District Court Judge Vaughn Walker did exactly what he had indicated in a prior order: he effectively denied the preliminary injunction by merging it with full-scale consideration of the merits. Then he began scheduling the steps prior to a trial.

From the San Jose Mercury:

Walker gave lawyers on both sides until early August to sort through the factual issues in order to establish a framework for a trial that could take place by the end of the year. ... Walker envisions an expansive, unprecedented exploration of the civil rights challenge over gay marriage, ranging from the history of discrimination against gays to arguments over the impact of same-sex marriage on traditional marriage and child-rearing.

Appeals court in India strikes down sodomy law

In a first for India, the Delhi High Court ruled today in Naz Foundation v Government of Delhi that Indian Penal Code Section 377, a law prohibiting sodomy, is unconstitutional as violative of privacy and equality rights. Plaintiff in the case was an AIDS service organization.  The government must now decide whether to appeal to the national supreme court or to accept the decision.  In briefs before the court, different agencies within the government split on whether to defend the law. The court responded by requiring scientific evidence to support arguments that the law served a public purpose. 

CLARIFICATION: Rex Wockner, who first reported that the decision had come down, has a new post, citing several Indian sources, stating that the ruling will apply to all of India until and unless it is appealed to the Supreme Court and reversed.

A brief excerpt from the 105-page decision:

129. The notion of equality in the Indian Constitution flows from the 'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, 'Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion . . . . 

130. 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.

131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. 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 antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution....

DoJ gets one right, decides not to appeal Schroer decision

In a good but overdetermined move, the Justice Department has announced that it will not appeal a district court's ruling that discrimination based on gender identity is sex discrimination and therefore invalid under Title VII. The case, litigated by the ACLU LGBT Rights Project, is Schroer v. Billington, 577 F.Supp.2d 293. For more background, see the ACLU's information page about the case and previous posts.

This is the case that I have been saying for months would be an outrage if Justice decided to appeal.  Unlike cases involving DoMA, it does not call into question the validity of any federal statute. From the defendant's point of view, it finds that a particular employment decision was unlawful, and implicitly directs the federal government not to discriminate based on gender identity. In a Republican Justice Department, however, an appeal would have been likely because the law is not settled on the question of whether gender identity discrimination violates Title VII (although the courts have been pretty steadily moving in that direction).

In other words, this is precisely the kind of case where DoJ traditionally has broad discretion not to appeal a decision that it has lost, where public policy concerns dictate otherwise. And the community outrage over the Smelt brief surely eliminated whatever doubt there may have been about pursuing the appeal. So, good for the Justice Department; they did the right thing.