hunter of justice

Analysis of UN Guidance Note on LGBT refugees

Professor Nicole LaViolette (University of Ottawa Law) has just published an analysis of the United Nations High Commissioner for Refugees' Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity.  Excerpts follow; HT Oscar Cabrera -

...In addition to being the UNHCR’s first analysis of sexual orientation and gender identity in the context of refugee protection, the [Guidance] Note also represents one of very few United Nations legal examinations of the situation of sexual minorities.

With the release of the Guidance Note, the UNHCR has finally recognized that sexual minorities have encountered a specific set of problems in having the refugee definition applied to their claims. The international agency suggests in its analysis that the growing number of refugee claims made by lesbian, gay, bisexual and transgender individuals “necessitate[s] greater awareness among decision-makers of the specific experiences of LGBT asylum-seekers.”

In the Guidance Note, the UNHCR sets out to examine legal questions essential to any determination of refugee status and highlights the ways in which the refugee law analysis needs to account for the specific situation of gay, lesbian, bisexual and transgender refugees.... 

...[T]he Guidance Note should not be viewed as a full and complete analysis of refugee claims based on sexual orientation and gender identity, [but] it provides a first and necessary interpretive road map for decision-makers responsible for determining such claims. At the very least, the document will provide a basis for further commentary on the many issues facing gay, lesbian, bisexual and transgender refugees.

Try a complete religious exemption: dis-establish religious marriage

The following post to the Social Science Research Council page is by Janet Jakobseen and Ann Pellegrini, authors of Love the Sin, a great read on the relationship between sex and religion:

This notion that religion and sexuality are somehow in opposition is one of the few beliefs shared by opponents and supporters of gay rights. Yet it has significant policy implications, particularly in recent moves to enact far-reaching “religious exemptions” as a condition of passing state laws permitting same-sex marriage. In New Hampshire, Governor John Lynch threatened to veto same-sex marriage unless state legislators also passed a bill framed as “protecting” religion and extending “religious liberty,” but that in practice exempt religious organizations and their employees from otherwise applicable state anti-discrimination laws. (Legal scholar Nan Hunter has predicted that the New Hampshire language could become a model for same-sex marriage laws nationally.)

In our 2003 book, Love the Sin: Sexual Regulation and the Limits of Religious Freedom, we offer an extensive argument that religious freedom and sexual freedom are actually interdependent rather than oppositional. Unfortunately, the impact of “religious exemptions” like those included in the New Hampshire law is to codify a narrow version of religious freedom in which religious liberty and sexual freedom can only be seen as mutually exclusive. This is not just a loss for sexual freedom; it also significantly narrows the parameters of religious freedom offered by the US Constitution.

If there is a “religion problem” posed by gay marriage, it is not that some religious organizations might be “forced” to provide secular benefits to same-sex couples, such as healthcare or equal access to residential housing; it is rather the entanglement of the state with the business of any couple’s religious marriage. The problem here is that the state legitimates religious marriages, performed by members of the clergy, rather than only civil unions performed by representatives of the state, thus entangling, rather than separating, state and religious practice. When such entanglements are maintained in law, religious practice is not “protected” from the state any more than citizens are “protected” from the imposition of religious convictions they do not share. New Hampshire and other states could actually “protect” both religious practice and those who are not religious (or who are differently religious) by providing civil unions on the basis of equality and letting religious bodies provide for religious marriages. No secular benefits would then flow from religious marriage, and the secular benefits that follow on civil unions would be separated from religious debates over homosexuality....

In a recent issue of the Nation, Lisa Duggan highlighted Equality Utah’s proposal for an Adult Joint Support Declaration, which would allow a legal framework for caretaking—medical decision-making, health insurance benefit designation, and inheritance—among adults who are not necessarily related by sexual or romantic partnerships. Such a proposal separates secular benefits not just from marriage but from sexuality as well, further removing the current entanglement between state benefits and religious debate over sexual practice. As Duggan points out, such a measure could spark unexpected political alliances as well as expand the support for caretaking in our society well beyond the question of marriage or domestic partnership, getting, in her words, “the AARP on board to lobby for medical next of kin, tax and inheritance rights for ‘Golden Girls’ households, or attract libertarians who want to take the state out of the business of ‘recognizing’ sexual or romantic relationships entirely.”

This shift in framework—from gay rights to the basic ground of freedom and equality—would do much not only for gay people and for the Obama administration’s standing with the oft-invoked “gay community;” it could significantly alter how controversial issues are approached in American public life. We might move beyond the identity politics of rights-based movements, even as we preserve the ability to act on identity- and rights-based claims. Who knows, but we might even create the basis for one of the most promising possibilities invoked by the early Obama campaign: not just change we can believe in on given political issues, but the possibility of creating a “new majority” that goes beyond individual issues to larger questions and practices of liberty and justice for all. Achieving this new majority cannot happen if we trade off some people’s sexual freedom for some other people’s religious freedom (or vice versa).

The gayest wedding ever

HT Lisa Duggan

British group issues guide to balancing religion and gay equality in the workplace

The Stonewall Foundation has published a report on "Religion and Sexual Orientation: How to manage relations in the workplace" that Congress ought to read in advance of its consideration of ENDA. Aside from some platitudinous guidelines ("treat everyone with respect"), the core of the document is a series of case studies, including a local clerk who refused to conduct civil partnership ceremonies, a counselor who balked at providing psychosexual counseling to same-sex couples, and a senior employee who constantly quoted Bible passages to a junior employee. The rule in Britain is that religious organizations can discriminate only if the job position or activity in question is directly associated with the doctrine of the faith group.  By contrast, the religious exemption in ENDA would grant religious organizations essentially a blanket waiver of ENDA's requirements. As this report documents, the British system is workable and fair.

More California voices weigh in: Stay away from 2010 ballot

Equality California asked six political consultants to advise on whether to push for a repeal of Prop 8 in 2010, and their unanimous response: No way. Following is a summary from the SF Chronicle; the full text of each expert's opinion is posted here.

Sue Burnside, co-chair of the National Gay & Lesbian Victory Fund Campaign Board, is "convinced that we should refrain from rushing in 2010, and instead to build on grassroots passion and strategically prepare for a 'Yes on Marriage Equality' referendum in 2012." Ditto for Mark Armour and Rick Claussen suggests "a multi-year campaign that culminates in an election when the time is right."

"If you do UNSUCCESSFULLY undertake this issue at the ballot in 2010, this will further erode public support on the issue and make it harder for future efforts to succeed," Claussen said.

Even though Democratic consultant Richie Ross -- who has won a bazillion races in California going back a few decades -- doesn't offer a definitive suggestion, he presents a raw numbers breakdown that suggests that by 2012 there will be more young voters on the rolls (likely to vote for gay marriage) and more older voters (likely to oppose) dying off.

Dave Fleischer, who has worked on many gay-related ballot measures over the years, worries about money. Each side on the Prop 8 battle raised at least $40 million. "The most conventional path to victory employed by a wide variety of campaign strategists -- bury your opposition by dramatically outspending them, effectively drowning out their message -- isn't an option when the opposition is as well-funded as ours is in California." He worries that the 66 weeks until Nov 2010 "is a very brief time to raise $40-50 million."

Plus, he worries if "our strategy, in a lower turnout year, (can) insure that those who voted withus in 2008 return to the polls in greater numbers than those who voted against us? We can certainly try. But we have to acknowledge that this would be very difficult. Key blocs of our supporters, such as younger voters, often turn out to vote in reduced numbers in off-years."

Former Los Angeles Times pollster Jill Darling said "Did the 2008 campaign move voters? Are the post-elections efforts having any effect? Nothing measurable, as of May."

Consultant Gale Kaufman notes that an initiative for November 2010 needs to be submitted to the Attorney General by the end of September. "We should ask ourselves, are we ready for that? Has the perfect initiative been drafted? Is everyone who should be consulted on the legal language, not to mention whatever nuances we want to add, signed off? Is the campaign structure in place to sustain the process that goes along with the beginning stages of an initiative campaign?

"I pose these questions because I think I know the answer. And I think the answer is No," Kaufman said. 

Mapping the sliding scale of same-sex relationship rights

Joanne Grossman (Hofstra Law) and Ed Stein (Cardozo Law) have posted a very useful new column at Writ in which they analyze current same-sex relationship rights as a sliding scale. The column provides a succinct summary of where each state stands as to recognition of couple rights for same-sex partners, ranging from marriage equality to non-recogntion to state constitutional amendments prohibiting recogntion. Grossman and Stein see the same lavender ceiling coming that I do: "In sum, although the developments in the same-sex marriage have been fast and furious at times, we are likely to see a slower pace in the coming years." More movement to marriage recogntion will come in the next few years, but it's going to be slow going after that, at least until ongoing demographic change gels into legislative action.

Health reform hits abortion wall

With congressional committees having entered the phase of proposing specific legislative language for health reform, an old problem has resurfaced: health reform and abortion rights are on a collision course.  I refer to it as an old problem because it is one of the issues I dealt with when serving in the Clinton administration during the last effort to achieve universal coverage. We struggled then to devise mechanisms that would preserve choices for both sides. The threat to the overall reform effort never became visible, though, because reform crashed for other reasons before public attention focused on that level of detail.  The good news this year is that we seem to be far enough along that abortion has become a meaningful concern.

There are three contexts in which inclusion of abortion is relevant: the structure of a public option plan, the basic benefits package that all private group health insurance plans would have to include, and the use of public subsidies to defray premium costs for low-wage workers and others who need assistance. In each case, conservatives frame the question, as the NY Times article did this morning, as the use of public funds to finance programs that include access to abortion. 

That framing hides some harsh realities.  One is that if a basic benefits package barred coverage for abortion, women who now have coverage through their workplace (or other) health insurance would lose it. That would amount to a massive cutback in access to choice for tens of millions of women. Here's the way the issue should be framed, straight out of my notes from 1993:

• It is essential to maintain the existing coverage and access to services that women now have under private health insurance plans; and
• The basic benefit package design must include all pregnancy-related services that are medically necessary and/or appropriate.

You can expect that most reporting of this debate will treat it as one more example of how the crazy wild card issue of abortion screws up rational political deliberation.  It goes deeper than that, though. The abortion problem in health reform exemplifies the way that sexuality-related questions privatize our political discourse. And, like the Hyde Amendment with which it resonates, it's a morality debate that is likely to get resolved by a compromise deal cut on the backs of the poor - specifically, inscribed on the bodies of poor women. No public funds for abortion involves a tiny number of dollars (the 1993 estimate was that abortion services accounted for 0.3 per cent of the average insurance premium), but the amount looms large for the individual woman who needs it.

California update: No Prop 8 repeal vote likely in 2010 + One litigation challenge bites the dust

Organizations are starting to fall into place calling for a delay in taking Prop 8 back to the ballot until the likelihood of success is stronger. A coalition of groups, including the ACLU, issued a "Prepare to Prevail" statement, now joined by NGLTF. No surprise: according to polls, the numbers aren't there to win, and I think it is everybody's sense that the dollars aren't there either. Equality California is hosting a community summit on July 25. Although no final decision has been made, it looks to me like the outcome is now clear.

Meanwhile, the federal district court hearing the Smelt case dismissed the part of it that was a challenge to Prop 8. In a short order, the court ruled that because plaintiffs' marriage was preserved under the portion of the California Supreme Court decision that upheld the validity of same-sex marriages performed before the election, plaintiffs lacked standing. The claim challenging the constitutionality of DoMA survives, which means that the Justice Department's infamous motion to dismiss is now the only remaining matter on which the court has to rule before the case either goes forward or goes on appeal.

LDF's Jackie Berrien to chair EEOC

Great news for progressive law folks - NAACP LDF Associate Director Jackie Berrien will be the next chair of the EEOC.  I knew Jackie when she and I were both lawyers at the ACLU. After the ACLU, Jackie worked at the Ford Foundation for a stint, then returned to LDF, where she had been a staff lawyer, as Associate Director. Another great appointment!

UPDATE - Senate adopts hate crimes language, which leads us to ... fighter jets

UPDATE July 21: The Senate voted to drop the funding for F-22s from the bill. The legislation will now go to conference committee. If the conferees strip out the F-22 funds that are part of the House version and keep the addition of the hate crimes language, as seems likely. there will be clear skies for the bill to land on POTUS's desk and be signed.

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UPDATE: By a 63-28 vote, the Senate invoked cloture, then voted to add the text of S 909 to the Defense Authorization bill. The next series of bumps will arise if $1.75 billion in funding for F-22s is not dropped from the bill. President Obama has declared that he will veto the bill if it includes "wasteful spending," which seems to be code for no more F22s. Even if there is a veto, however, advocates remain confident that the hate crimes language will eventually make it through.  More background here.

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Senator Leahy has just introduced S 909 - the Mathew Shepard hate crimes bill - as an amendment to the Defense Authorization bill. As is customary in the Senate, sporadic debate will occur until a vote is held on the cloture petition, which - if it secures 60 votes in support - will set an end point (a maximum of 30 hours of debate) to the debate on the amendment. The cloture vote could happen as early as tomorrow. The Leadership Conference on Civil Rights is predicting that the vote on the substance will occur on Friday.

The same bill passed the House in April by a 249 to 175 vote (HR 1913).

Happy July 14

Viva la liberte!

And my personal dedication: to the people of Palestine

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 is now 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....