hunter of justice

No release of Prop 8 trial videotapes

The Ninth Circuit ruled today that District Judge James Ware (who replaced retired Judge Vaughn Walker) abused his discretion by ordering the public release of videotapes made of the trial in which the constitutionality of Prop 8 was successfully challenged.

The unanimous opinion, written by Judge Stephen Reinhardt, was explicitly limited to the specific facts of this case, and ventured no position on the proader questions of public access to judicial proceedings by electronic means. The court stated that "The trial judge [Walker] on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast...[T]he integrity of the judicial process is a compelling interest that in these circumstances would be undermined by the nullification of the trial judge's express assurances..."

New HUD regulation bars housing discrimination against lgbt persons and families

The Department of Housing and Urban Development has issued its final rule prohibiting discrimination based on sexual orientation or gender identity in HUD-assisted or -financed housing. The rule also bans inquiries as to these characteristics, and specifically defines "family" to include lgbt families. The regulation will be published in the Federal Register next week, and go into effect 30 days after the date of publication. 

HUD's summary of its provisions:

• Requires owners and operators of HUD-assisted housing, or housing whose financing is insured by HUD, to make housing available without regard to the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling, whether renter- or owner-occupied.  HUD will institute this policy in its rental assistance and homeownership programs, which include the Federal Housing Administration (FHA) mortgage insurance programs, community development programs, and public and assisted housing programs. 
• Prohibits lenders from using sexual orientation or gender identity as a basis to determine a borrower’s eligibility for FHA-insured mortgage financing.  FHA’s current regulations provide that a mortgage lender’s determination of the adequacy of a borrower’s income “shall be made in a uniform manner without regard to” specified prohibited grounds.  The rule will add actual or perceived sexual orientation and gender identity to the prohibited grounds to ensure FHA-approved lenders do not deny or otherwise alter the terms of mortgages on the basis of irrelevant criteria. 
• Clarifies that all otherwise eligible families, regardless of marital status, sexual orientation, or gender identity, will have the opportunity to participate in HUD programs. In the majority of HUD’s rental and homeownership programs the term “family” already has a broad scope, and includes a single person and families with or without children.  HUD’s rule clarifies that otherwise eligible families may not be excluded because one or more members of the family may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship. 
• Prohibits owners and operators of HUD-assisted housing or housing insured by HUD from asking about an applicant or occupant’s sexual orientation and gender identity for the purpose of determining eligibility or otherwise making housing available. In response to comments on the proposed rule, HUD has clarified this final rule to state that this provision does not prohibit voluntary and anonymous reporting of sexual orientation or gender identity pursuant to state, local, or federal data collection requirements. 

 

The un-cola decision in Perry coming tomorrow

The Ninth Circuit posted an announcement today that it will issue its decision tomorrow on whether the videotapes of the trial in the Perry case must be released to the public. The District Court judge ruled that they should be, but the Court of Appeals then stayed any release pending its decision (after a separate oral argument just on the stay). If this court affirms the original ruling of the trial court, it may or may not also suspend actual release until the Prop 8 proponents have time to seek review either en banc or before the Supreme Court. Meanwhile, the clerk of the Northern District of California, where the case originated, announced that even without a built-in stay, that court won't be able to process release of the tapes until at least next week. 

Whatever. I can't get very excited, frankly, about whether these tapes are released. Yes, they will provide the material for lots of terrific quickies on YouTube, and these might have educational value, but I'm dubious about how many people's minds will be changed by seeing them. The legal point - public access to judicial proceedings - is important, but somewhat muddied by representations made during trial that there would be no public release. And I don't think that the court's ruling on this point will predict anything about how the ruling on the merits will come out.

Oh yeah...what about that ruling on the merits? I've been asked a couple of times why I think it's taking so long.  Actually, it hasn't taken any longer than I expected. If the case had not been set for expedited consideration, this phase might well drag on for months.  But it is on an expedited track, and for that reason, my guess is that it won't be much longer. If I had to bet - which thankfully I don't - I would wager that there will be a ruling this month.  Valentine's Day?

The week ahead: January 30, 2012

Monday, January 30 - Trial to begin anew in Orozco v. Attorney General of Belize, the challenge to that country's sodomy law.

 

 

The week ahead: January 23, 2012

Wednesday, January 25 - Hearing on motion for summary judgment in Doe v. Jindal, in which the Center for Constitutional Rights is challenging the selective enforcement of Louisiana's sodomy law (yes, it's still on the books) in federal district court.

Also January 25 - Opening brief due in Ninth Circuit in Doe v. Reed, the appeal from a decision denying anonymity to individuals who signed petitioners to put a recall question on domestic partnerships on the ballot in the state of Washington. The case should be decided just in time for the legislature to adopt a marriage equality bill.

January 27-28 - Symposium at UCLA Law School on "Overpoliced and Underprotected: Women, Race and Criminalizaton" analyzing the interlocking nature of institutions that reinforce the subordinating nature of the criminal justice system; one panel focuses on "Punishing Sexuality and Reproduction."

The week ahead: January 16, 2012

Monday, January 16 - The newly-formed Indiana Journal of Law and Social Equality is currently seeking submissions for its inaugural issue and symposium, “Whither Social Equality?” The issue and the symposium, to be held on March 30, 2012, in Bloomington, Indiana, will explore the current state of social equality thought from a variety of perspectives and address a variety of different forms of (in)equality (race, class, gender, sexual orientation, intersectionality, and familial status). Submit papers, proposals, or abstracts to ijlse@indiana.edu by January 16, 2012.  

Also January 16 - Deadline for submission of law student papers on topics of sexual orientation and gender identity to be considered for the Dukeminier awards sponsored by the Williams Institute.

Wednesday, January 18 - CLE program in New York on LGBT Law 2011 Year in Review; speakers will include Art Leonard, Richard Socarides and Susan Sommer. More details here.

Supreme Court upholds ministerial exception to anti-discrimination laws

In a unanimous but cabined decision, the Supreme Court today in Hosanna Tabor Lutheran Church and School v. EEOC upheld what is known as the "ministerial exception" to laws against employment discrimination. The case involved a teacher in a religious school, the bulk of whose time was spent in secular instruction. The Court identified several factors for determining whether an employee qualified as a "minister," but eschewed any "rigid test." Nonetheless, it reversed a Court of Appeals decision from the Sixth Circuit which had found that the individual did not qualify for the exception.

From SCOTUSblog:

Closing the courthouse door much of the way, but not completely, to workplace bias lawsuits by church employees who act as ministers to their denominations, the Supreme Court on Wednesday unanimously gave its blessing — for the first time — to a “ministerial exception” to federal, state and local laws against virtually all forms of discrimination on the job.  The Court’s ruling, which only Justice Clarence Thomas said did not go far enough, did not order courts to throw out all such lawsuits as beyond their jurisdiction, but it left them with only a narrow inquiry before the likely order of dismissal would come down.  As soon as the denomination makes its point that it counts an employee as a “minister,” within its internal definition, that is probably the end of the case.  And the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission.

The main opinion written by Chief Justice John G. Roberts, ... dismissed as an “extreme position” the plea of EEOC to limit any “ministerial exception” solely to workers who perform “exclusively religious functions.”  While the opinion said the Court was “reluctant to adopt a rigid formula for deciding when an employee qualifies as a minister,” the opinion went on to describe some key factors that courts are to take into account in judging whether a given denomination has proved its claim to the exception.

In this particular case, involving a parochial school teacher in Redford, Mich., who spent most of her work time on non-religious duties, the Court found these to be decisive factors: that she was formally commissioned as a “minister” in the Lutheran denomination’s internal practices, that she did perform “important religious functions” in addition to her teaching of lay subjects in the classroom, and that her non-religious duties, however extensive, did not make a difference.   The Chief Justice said the Court was unsure whether any church employee would ever do exclusively religious chores.

...The Roberts opinion, with the support of eight members of the Court overall, said in a final footnote that is likely to take on added significance that the “ministerial exception” was not “a jurisdictional bar” to all such lawsuits claiming workplace bias.  Rather, the Chief Justice explained, it is “a defense on the merits.”  Thus, such lawsuits can be filed, and the worker who is suing will make a claim that he or she is the victim of discrimination, and then the denomination gets to answer that the case cannot go further because it considers the employee to be a “minister.”

The footnote concluded: “District courts have power to consider [such] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.”...

A constitution that Rick Santorum would love

Here's an example of constitutional law that Rick Santorum (and Newt Gingrich and Rick Perry) could get behind -- from Hungary.

At the beginning of this month, a new Hungarian constitution took effect, along with a new Family Protection Bill (which is ‘cardinal law’ that requires a two-thirds majority in parliament, like the constitution, in order to be changed).

Article L of the constitution defines marriage as a union between a man and a woman, while Article XV.2 excludes sexual orientation from the protected grounds of discrimination (but does have provision for protection on the basis of race and gender).

In addition, the power of constitutional courts has been curbed. Previously a law or act could be annulled by petitioning to the constitutional courts via non-governmental organizations (NGOs) or civil society organizations. That right to seek judicial review has been essentially eliminated. (Apparently the fear of activist judges extends to Hungary.)

The Family Protection Bill states: ‘Art 7. (1) When applying this law family shall mean the relationship between natural persons in an economic and emotional community that is based on a marriage between a woman and a man, or lineal descent, or family-based guardianship. (2) Lineal descent is established by way of filiation or adoption.’

The law reiterates that the life of the fetus starts with the moment of conception, that preparing for family life should be part of school curriculum, and that media services should broadcast programs that respect the institution of marriage and family. The law also states that all “media services should broadcast programs that respect the institution of marriage and family”. 

Source: Gay Star News

The week ahead: January 9, 2012

January 10 - Oral argument before the U.S. Supreme Court in FCC v Fox (No. 10-1293). The United States is appealing lower court rulings that the FCC's indecency restrictions on broadcast television and the Internet are unconstitutionally vague.  The communications at issue include images of nudity in a NYPD Blue episode and the use of phrases such as “f***ing brilliant,”  “f*** em,” and “f***ing easy” in a live broadcast.  

Also January 10 - Oral argument before the South Dakota Supreme Court in Rumpca v. Brenner, on the continuing validity of a cause of action for alienation of affection under state law. A hangover from common law, alienation of affection is a tort action that allows recovery of damages from an individual who seduced the plaintiff's (usually former) spouse and thus brought about the end of the marriage. South Dakota is one of seven states that still recognizes it as a valid claim.

Obama administration assesses status of lgbt rights in the U.S.

The State Department has filed with the United Nations the self-assessment report called for every five years in which governments describe their compliance with the International Covenant on Civil and Political Rights. In this Report of the U.S. on the ICCPR, lgbt rights issues figure prominently. As Council for Global Equality leader Julie Dorf describes, the featuring of lgbt issues signifies a sea change since the 2006 report:

In a major departure from a prior Bush Administration report, sexual orientation and gender identity issues featured prominently in this current submission, with an honest and reflective perspective on the state of LGBT rights in the United States. The report chronicles recent progress made to advance LGBT equality at the federal and state levels, including the repeal of “Don’t Ask, Don’t Tell,” the passage of hate crime legislation, support for a variety of family recognition mechanisms, and the legal recognition of gender identity discrimination in the workplace.

When the United States presented its last report to the Committee on Human Rights in 2006, the U.S. delegation tried to deny the application of longstanding sexual orientation and gender identity protections under the ICCPR, even though the Committee has recognized rights to privacy and non-discrimination for LGBT individuals since at least 1992.  During that 2006 review, a member of the UN Committee noted publicly that the U.S. delegation, which included the head of the civil rights division of the U.S. Justice Department, demonstrated a lack of awareness of the “longstanding and consistent” jurisprudence of the Committee on these issues.  The UN expert expressed his concern that by denying the existence of these rights under the ICCPR, the U.S. government might suggest that persons of diverse sexual orientations and identities are not fully entitled to the rights to life and privacy under the treaty.  In contrast, by reporting so extensively on LGBT-related concerns in this current UN report, the Obama Administration has now made an unequivocal legal statement recognizing that international law protects the human rights of all individuals, including on the basis of sexual orientation and gender identity.  Indeed, this is the legal justification for Secretary Clinton’s emphatic assertion that “human rights are gay rights and gay rights are human rights, once and for all.”

The report also identifies a number of areas in which LGBT equality has not been achieved, but where the Obama Administration has been stymied by Congress, such as with the repeal of the Defense of Marriage Act, and the enactment of federal workplace nondiscrimination legislation.

Hong Kong College of Psychiatrists de-lists homosexuality as illness

In a development that has gone unreported until a few days ago, the association of psychiatrists in Hong Kong voted late last year to adopt the official position that "homosexuality is not a mental disorder" and to state that

There is, at present, no sound scientific and clinical evidence supporting the benefits of attempts to alter sexual orientation.

A psychiatrist should provide care with no discrimination... 

According to Fridae, a gay Asian publication, this step is of critical political and policy importance for multiple reasons:

Firstly, ... I know of no other Asian psychiatric or psychological professional body that has followed the examples of their corresponding bodies in the United States, the United Kingdom, Europe or Australasia in sticking out their necks and making a statement on this issue. This seems to me to be something of a continental first.

Secondly, certainly in Hong Kong no professional organisation has issued such a statement before, so until this statement there has been no ‘official’ guidance on the matter. This has, until now, enabled the government to pretend that the issue remained subject to debate. The government has hitherto been able to adopt, therefore, a detached position of seeming to arbitrate or balance between the two sides of the LGBT rights argument, hiding as it does so beneath the liberal cloak of maintaining ‘the freedom of speech’. Because of the new statement, it will be able to evade the issue in this way no longer. 

Thirdly, activists in Hong Kong will no longer have to adduce arguments based upon foreign professional pronouncements in support of their cause. They now have a locally produced weapon with which to attack government inactivity or discrimination and to counter the public assaults of the fundamentalist right. They no longer have to prove these issues; in future they will be able to quote the College of Psychiatrists’ statement as proof that those with more professional standing than anyone likely to be in the room have ruled thus. In hide-and-precedent-bound Hong Kong, this is a powerful weapon indeed. 

So how did this unusual statement come about? The roots of the story lie back last June when the government appointed ‘reparative therapy’ advocate, psychiatrist Dr Hong Kwai-wah, to teach its social workers issues of sexual orientation. This caused a furore locally after activists from the Womens Coalition of the HKSAR and Rainbow picketed the venue. Word of this spread worldwide.

Data show that "marriage is losing market share"

To me, the most telling statistic in the following analysis of marriage data, from the Pew Foundation, is multiple paragraphs down. Although Americans marry at a later age than 50 years ago, the great majority marry at some point in their lives.  The "great" part of that statement, however, is also diminishing: from 85 per cent in 1960 to 72 per cent in 2010. Put differently, more than a quarter of Americans never marry.

Barely half of all adults in the United States—a record low—are currently married, and the median age at first marriage has never been higher for brides (26.5 years) and grooms (28.7), according to a new Pew Research Center analysis of U.S. Census data.

In 1960, 72% of all adults ages 18 and older were married [at the time of the survey]; today just 51% are. If current trends continue, the share of adults who are currently married will drop to below half within a few years. Other adult living arrangements—including cohabitation, single-person households and single parenthood—have all grown more prevalent in recent decades.

The Pew Research analysis also finds that the number of new marriages in the U.S. declined by 5% between 2009 and 2010, a sharp one-year drop that may or may not be related to the sour economy.

The United States is by no means the only nation where marriage has been losing “market share” for the past half century. The same trend has taken hold in most other advanced post-industrial societies, and these long-term declines appear to be largely unrelated to the business cycle. The declines have persisted through good economic times and bad.

In the United States, the declines have occurred among all age groups, but are most dramatic among young adults. Today, just 20% of adults ages 18 to 29 are married, compared with 59% in 1960. Over the course of the past 50 years, the median age at first marriage has risen by about six years for both men and women.

It is not yet known whether today’s young adults are abandoning marriage or merely delaying it. Even at a time when barely half of the adult population is married, a much higher share— 72%—have been married at least once. However, this “ever married” share is down from 85% in 1960.

Public attitudes about the institution of marriage are mixed. Nearly four-in-ten Americans say marriage is becoming obsolete, according to a Pew Research survey in 2010.¹ Yet the same survey found that most people who have never married (61%) would like to do so someday.

It is beyond the scope of this analysis to explain why marriage has declined, except to note that it has declined far less for adults with college educations than among the less educated. Some of the increase in the median age at first marriage over the long term can be explained by the rising share of young adults enrolled in college, who have tended to marry later in life; recently, there are indications that adults who are not college graduates also are marrying later.² Fallout from the Great Recession may be a factor in the recent decrease in newlyweds, although the linkage between marriage rates and economic hard times is not entirely clear.³

Divorce is a factor in diminishing the share of adults who are currently married compared with 50 years ago. But divorce rates have leveled off in the past two decades after climbing through the 1960s and 1970s, so divorce plays less of a role than it used to.⁴

What is clear is that a similar delay and decline of marriage is occurring in other developed nations, especially those in Europe, and in some cases in less developed nations. According to a recent United Nations report that analyzed marriage trends in the context of their impact on fertility,⁵ female age at first marriage rose from the 1970s to the 2000s in 75 of 77 countries included in its analysis. The increase was most marked in developed nations—and especially notable in those countries because the age at first marriage had been declining until the 1970s.

On another measure, the share of women ever married by ages 45-49, there were declines in all developed nations between the 1990s and the 2000s. According to the U.N. report, this was “due in part to an increasing acceptance of consensual [cohabiting] unions as a replacement for marital unions.”