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31 posts from September 2009

September 17, 2009

BC Law professor crosses line in ad supporting repeal of Maine marriage rights

Boston College Law Professor Scott Fitzgibbon appears in the ad below for the Yes on 1 campaign seeking to overturn the statute adopted last summer by the Maine legislature which granted equal marriage rights to same-sex couples.  No problem there - he's certainly got every right to do that. But Professor Fitzgibbon lends his imprimatur (he is a jurisprudence and business law scholar) to three canards from the Prop 8 wars that are false: that same-sex marriage will lead to a "flood" of lawsuits against individuals, small businesses and churches; that religious groups will lose their tax exemptions; and that "gay marriage will be taught in the schools -- whether parents want it or not."

How fitting that the ad is titled "Consequences," because it sure ain't the truth. The truth is that:

First - After five plus years of legalized same-sex marriage in Massachusetts, the number of oppressive lawsuits filed that have been based on that law is exactly ... zero.

Second - Not only is it the same number - zero - of  religious groups in Massachusetts that have lost their tax exemption, but no serious scholar believes that the charitable contribution exemption from federal income tax is at risk. The only tax exemption issue that has arisen was a property tax exemption for a church in New Jersey (where marriage for gay couples isn't even legal). There the issue involved a church which advertised that a space that it owned on the boardwalk was open to the public. When it refused to rent the space to a lesbian couple for a civil union ceremony, the property tax exemption (which had been specifically premised on the space being available for public use) was withdrawn. (More here)

Third - The case cited in the ad, Parker v. Hurley, involved whether parents could withdraw their children from a diversity curriculum that included sexual orientation. Some of the materials used by some teachers dealt with marriage. The courts upheld the discretion of the local school board to make curricular decisions. (More background here)

Does this mean that there are no legitimate or difficult issues raised by the conflict between religious beliefs and secular equality principles? No. But in fact they tend to arise more frequently with the application of anti-discrimination laws, not equal marriage laws. The arguments made in this ad are nothing more than scare tactics.

September 15, 2009

Women in Congress bring home more bacon

As reported in Politico, a new study by researchers at Stanford and the University of Chicago have found that women in Congress do a better job than their male counterparts of bringing home money for their districts -

The study, which examined the performance of House members between 1984 and 2004, found that women delivered roughly 9 percent more discretionary spending for their districts than men.

For instance, during Rep. Judy Biggert’s first two-year term, Illinois’s 13th District received $382 million in federal funds, $70 million more than it received during the final term of her predecessor, Rep. Harris Fawell. Rep. Zoe Lofgren delivered around $859 million to her district, compared with $541 million brought in by her predecessor, Rep. Don Edwards, during his final term, the researchers said. And during then-Rep. Connie Morella’s first term, Maryland’s 8th District received $780 million, $183 million more than predecessor Rep. Michael Barnes brought in during his final term, they said.

While there are obviously variables beyond gender — seniority, party affiliation, majority/minority status and the differing priorities of a freshman and a veteran lawmaker — the researchers say they’ve accounted for those in making their male-to-female comparisons.

“You could easily make the argument that a politician who is on his way out, or someone who is sitting on a really powerful committee, is in a different position than someone just coming into office,” said Stanford researcher Sarah Anzia. “Not every example will cover every alternative explanation, but we control for all of those factors in the study.”

The researchers also found that women introduced more legislation than men who served in their same districts, often hitting the ground running in their first terms. “We find that, on average, women sponsor about three bills more per Congress per term than their male counterparts,” said Anzia. “They co-sponsor more bills than other members, and they also obtain more co-sponsors for their own bills.” 

...Researchers say the small number of female members may have something to do with their effectiveness. Women who run and win are likely the most politically ambitious and talented of their pool, having potentially overcome hurdles including voter bias and self-doubt about their ability to win. Female candidates also tend to attract more challengers. Politically eligible women tend to doubt their ability to get elected and raise money more than men do, multiple studies have indicated.

Once women get to Capitol Hill, those hurdles may drive them to perform better, on average, than male counterparts who have faced a less contentious road. “Research shows that even though women have similar success rates in primaries and elections as men, they are likely to face more challengers,” said Hartwick College political science department chairwoman Laurel Elder. “The results might be the same, but they might have to work harder to get those same results.”

Continue reading "Women in Congress bring home more bacon" »

September 14, 2009

Feldblum to become first openly gay EEOC Commissioner

The White House announced today that Georgetown Headshot_Feldblum_Chai Law Professor (and partner of yours truly) Chai Feldblum will become the first openly gay Commissioner on the Equal Employment Opportunity Commission. After confirmation, Chai will begin a five-year term as one of five commissioners. The EEOC is responsible for issuing regulations to enforce federal anti-discrimination laws and for authorizing the initiation of major test case litigation by the Commission's legal staff.

And yes, probably the most important effect of this will be when ENDA passes. The EEOC will be the agency responsible for issuing regulations for its enforcement. Having Chai there to set the framework for the initial regulatory response to ENDA is important beyond words. Mazel tov!

September 13, 2009

Defending Semenya

Semenya-leichtathletik-wm-geschlecht-artikel-410 From Bully Blogger, a superb analysis of the Caster Semenya gender panic:

By Tavia Nyong’o

World champion runner Caster Semenya returned to a hero’s welcome in her native South Africa last month, where the public denounced the “gender testing” she was forced to undergo after her gold medal in Berlin. Outraged by the racist and sexist comments of rivals who told journalists that you could tell she was  a man just by looking at her, the president of South African athletics, Leonard Chuene, resigned from the International Association of Athletic Federations (IAAF). “This girl has been castigated from day one, based on what?” he told the LA Times “You denounce my child as a boy when she’s a girl? If you did that to my child, I’d shoot you.”

South Africans aren’t the only ones angrily comparing Semenya’s treatment to that of Saartjie Baartman, the nineteenth-century Khoisan woman who was exhibited throughout Europe as a sexualized monstrosity. White audiences guffawed, prodded and poked at her exposed body, which they laughingly demeaned as that of a “Hottentot Venus”: the inverse of European standards of beauty. Challenging Semenya’s femaleness, people now assert, is imperialism all over again. Its an especially shameful and traumatic humiliation, they stress, for a teenager to experience. The South African newspaper, The Guardian and Mail wrote:

At 18, Caster Semenya is quite probably frightened and confused. Her dignity has been attacked, her profoundest sense of self laid bare with potentially damaging psychological consequences. But when she returns home, she seems assured of a special welcome from family and friends who have never sat in judgment on her nature. They have always accepted her simply as Caster, the girl who can outrun them all.

Her case is understandably upsetting, but I for one object to the manner in which Semenya is being spoken for and defended in passages above. Is it her defenders who are perhaps embarrassed and ashamed by her exuberant embodiment, more than her? Semenya, according to her family and friends, is a rough and tough tomboy who excels in sports, scorned skirts for trousers from the very beginning, and shrugged off teasing and bullying about her gender long before the issue exploded in Berlin. Young though she may be, who is to say Semenya cannot know and enjoy who she? Who is to say that her “profoundest sense of self” lies with being considered and treated like a “girl”?

If ever a case called for an intersectional analysis that included queer and trans perspectives, as well as anti-racist and anti-imperialist ones, this is it. Whether indignantly paternalistic, like Chuene, or more “liberally” expressing concern over a fragile, damaged psyche, like the Mail and Guardian, Semenya’s defenders are clearly dealing with a gender panic of their own.

And who wouldn’t be? World-class female athletes have long made people anxious, particularly gorgeously muscle-bound black ones. The splendor of their world, which a bystander like myself can only imagine, must be one in which conventional barriers of the body are left behind in the dust. In the name of protecting African femininity from a western, scientific gaze, Semenya’s defender also disguise their own patriarchal investment in naming and controlling this gender excess. But as her career already illustrates, such gender excess is hard to control.

As From a Left Wing writes, apropos of Semenya and of similar cases in women’s soccer:

What is it we are looking for in a women’s game? Surely not a confirmation of the “femininity” of the people on the pitch. It must be something else – like how the women’s game allows us to escape from narrow ideas about who and what women are. Why shouldn’t women’s football be exactly the game to welcome gender-bending warriors like the intersex athlete, and the transgender warrior?

The real challenge when an ugly, gender-disciplinary inquisition like the one the IAAF has started crops up is not to allow ourselves to be blackmailed into simplistic reassertions of gender normativity for the sake of the vulnerable child. Here Semenya herself leads the way, in her succint response to the ordered test:  “I don’t give a damn.” Instead of making her a traumatized symbol of a violated continent, how about adopting some of her contemporary, wordly pugnacity?

And instead of insisting upon the naturalness of her gender, how about turning the question around and denaturalizing the world of gender segregated, performance-obsessed, commercially-driven sports, a world that can neither seem to do with or without  excessive bodies like Semenya’s and their virtuosic performances?

The rush to compare Semenya to Saartjie Baartman, while obvious for nationalistic reasons, misses something crucial. Baartman was exhibited and castigated for what the imperialist eye took to be her abberantTipton femininity. A better comparison here would be to the many trans bodies (like famed jazz pianist Billy Tipton right) who have been disciplined and punished for their female masculinity. As in Semenya’s case, female masculinity is often associated with forms of disguise and deceit (the stigma of “doping” and of South African Athletics perhaps trying to “pass off” a male runner as a woman is clearly relevant here). But it is also associated, and for related reasons, with the extraordinary. Runners like Semenya are as much virtuoso performers as are players like Tipton. And the virtuoso always risks being scapegoated as a freak, even as they exhibit a skill that is, in a sense, always already in all of us.

Continue reading "Defending Semenya" »

September 11, 2009

Coming out as vegan

Sherry Colb, a progressive feminist law professor at Cornell, has written a provocative essay for Writ (excerpts below), comparing vegan movement politics to those of the lgbt movement. A lot of gay non-vegans may find this offputting, but, as a purely intellectual matter, I've thought for years that this point was fascinating.  I wrote one of the problem hypotheticals (with which law professors love to teach) in my casebook on this topic more than 10 years ago, and I think that Sherry provides a very interesting angle, focusing on the expressive dimensions in the comparison.

Discuss among yourselves -

...One profound and ubiquitous form of subordination is that in which we humans engage with respect to nonhuman animals. At the present time, the law permits and condones the massive injury and slaughter that is inflicted on billions of animals for purposes of their consumption as food and clothing.

An increasing number of people have come to recognize the injustice of the injury and slaughter, but an overwhelming majority of the population resists this recognition. What lessons might the struggle for gay rights have to teach those who seek to end the systematic torture and slaughter of animals?

The first thing to note is that there is a risk in analogizing the struggle for gay rights with the struggle for animal rights. The danger that concerns me is not, as some might think, that of offending people. People were (and some continue to be) offended by comparisons between struggles against racial oppression and struggles against homophobia, but it is precisely the resistance to an unfamiliar claim (especially a claim that implicates one's own behavior) that makes it seem "offensive."

If inflicting terrible suffering and death on nonhuman animals who can feel pleasure, pain, and a wide range of emotions represents a real harm – and most people acknowledge, at some level, that it does – then no one should be offended by the suggestion that this harm must stop, just as other harms, once taken for granted as permissible, are now almost universally condemned.

The risk, though, is that of missing the real connection. The proper analogue to a gay person seeking gay rights is not a nonhuman animal, for the latter is not able to seek justice for herself (except by appearing, occasionally, in the public consciousness and awakening rare pangs of conscience and empathy). The proper analogue to the gay person struggling for gay rights is, instead, the vegan struggling for animal rights.

When I use the word "animal rights" here, I mean something very basic – an entitlement to have one's interests seriously considered in people's decision-making process. ...[I]if a being's interests are taken seriously, then surely one may not inflict torture, misery, and slaughter on that being simply to satisfy one's culinary and fashion preferences.

Once we recognize that it is the vegan – rather than the nonhuman animal – who occupies the space parallel to that of the gay rights advocate, we immediately see some important commonalities. One is that, unlike race and sex, gay identity and vegan identity are, in part, chosen, [not in the sense that one can "decide" to be straight, but because] part of what makes the gay rights movement distinctive is that it is possible for a gay man or a lesbian to live (unhappily) as though he or she is straight.

Because [that decision] is possible for a gay person ... , however unfulfilling such a life might be, the decision to acknowledge (to others but also to oneself) that one is gay or lesbian is a momentous decision that takes courage and often results in family tensions.

Similarly, ethical vegans make a decision that they will start consuming a vegan diet and wearing vegan clothing. Unlike the non-vegan majority, very few ethical vegans were born into veganism, and thus most necessarily had to question a status quo that treats the farming of animals for their dead bodies as an inevitable and fine state of affairs. Though vegans are routinely asked why they are vegan, non-vegans are almost never asked why they are not. It would, in fact, be considered rude to ask a non-vegan "why do you choose to consume animal products?"

Becoming a vegan often generates family conflicts, in some of the same ways as coming out as gay does. Family members can have a hard time accepting the change and may enjoy bringing up old stories of animal consumption by the now-vegan....

Defenders of Prop 8 seek to win Perry case without trial

The defendants in Perry v. Schwarzenegger have filed a motion for summary judgment in which they seek a ruling that, notwithstanding any factual disputes, there should be no trial because controlling precedents compel a ruling that Prop 8 is constitutional.

A summary judgment motion is a completely predictable move by defendants - try to get the plaintiff's case dismissed before you have to spend any time or money in discovery or trial. What is unusual is that in Perry, the judge has repeatedly demanded that the parties create a full factual record. (See this earlier post, or just click on the category "Perry  lawsuit" to get the background.) Despite that, though, this motion is the logical next step for defendants who have argued from the beginning that the constitutional challenge brought by the Ted Olson/David Boies team is, literally, groundless.

The motion is 117 pages long, so at this point I will just summarize the main points on which the defendants are relying, and add a little commentary:

> That the Supreme Court has foreclosed the question of whether there is a constitutional right for same-sex couples to marry by its dismissal of an appeal from one of the earliest marriage challenges - in Minnesota in 1973 - in a case called Baker v. Nelson. More in a future post about why this is a bogus argument, but for now suffice it to say that one or two things about the law have changed in the last 36 years, and the precedential weight of that form of dismissal is not entirely clear in any event.

> That there is no fundamental right to marry for same-sex couples because, under Washington v. Glucksberg, the test for such a right is whether it is grounded in history, and the right to "same sex marriage" isn't.  But then, of course, the right to marry is.

> That there should be no heightened scrutiny for sexual orientation classifications because two criteria for such scrutiny are not met: sexual orientation is not immutable and gay people wield "substantial political power." And that these two assertions are not only correct but beyond reasonable dispute? - this is a hornet's nest for both sides.

> That even under rational basis review, California voters had good reasons to enact Prop 8, including, among others, that "the traditional institution of marriage promotes:...the formation of naturally procreative unions;...stability and responsibility in naturally procreative relationships; [and] the naturally and mutually beneficial bond between parents and their biological children." Nothing new here.

> That Prop 8 is not tainted by animus. You've got to be kidding.

Oral argument on this motion is scheduled for October 14.  Sure wish I could be there ringside - it's going to be quite a show.

Another first for Latin America: gay adoption in Uruguay

Capt.photo_1252516832293-1-0 Uruguay lawmakers Wednesday adopted a trailblazing law allowing gay and lesbian couples to adopt children, in an unprecedented move for Latin America. ... [T]he contentious bill passed its final hurdle with 17 out of 23 senators voting in favor of the legislation.

It was approved by lawmakers from the ruling leftwing Frente Amplio and the opposition Colorado Party, while the opposition National Party voted against. The Senate had already approved a draft bill on its first reading in July, but it had to pass a second vote due to slight changes to the text introduced when the lower house voted approved the legislation last month.

Gay adoptions remain contentious worldwide, and Uruguay, a nation of some 3.5 million people, is taking another step away from its more conservative neighbors after having already authorized gay civil unions last year. President Tabare Vazquez, the first leftist leader in Uruguayan history, already opened access for homosexuals to military schools in May. But the move faced huge opposition from the country's religious leaders and some right-wing politicians.

The Catholic Church is against the bill because "from Genesis in the Bible, it says that 'God created man and woman,'" Bishop Paul Galimbertti said. "The position of the Church is very clear on this issue," he said, adding "there is no proof that adoption by homosexuals is a positive thing."...

"Uruguay has a long tradition of leading the way in civil rights, and has shown a desire to move ahead quickly on such questions," said social sciences professor Adolfo Garce at the Montevideo University. The large wave of European immigration to the country in the 20th century, particularly from Spain has given it "a progressive and secular culture," he added.

Uruguay was the first country in the largely Catholic South American region to approve divorce in 1907, and gave women the right to vote in 1932. But abortion remains illegal, after President Vazquez vetoed a proposed bill last year which would have legalized the terminations of pregnancies on "ethical grounds."


Source: yahoo news; HT Oscar Cabrera

September 08, 2009

Election Day 2009 preview: Maine and Washington

An analysis by Lisa Keen, from Bay Windows:

In what is being described as perhaps the "narrowest margin ever for qualifying for the ballot," the Washington State Secretary of State’s office announced Monday evening that opponents of gay relationships in that state collected enough valid signatures to secure a ballot measure this November. The measure, which will be known as Referendum 71 or R-71, seeks to overturn Washington’s domestic partnership law, which provides same-sex couples with "everything but marriage."... And meanwhile, the Maine Secretary of State [has announce] that a ballot measure seeking to overturn that state’s newly minted equal marriage law has been certified for the ballot there this November.

Washington: Referendum 71

...Washington Families Standing Together, a group seeking to preserve the domestic partnership law, filed a lawsuit August 27 challenging the Secretary of State’s signature validation process. The lawsuit asked a state court to stop the Secretary from certifying the petitions, contending that the Secretary accepted some petitions that do not meet state requirements. A King County judge refused Wednesday, September 2 to interfere with certification of the ballot measure, and the Secretary of State then certified Referendum 71.

The group seeking to overturn the domestic partnership law, Protect Marriage Washington, also filed a lawsuit -- in federal court -- seeking to seal the petitions from public scrutiny. The group claims that pro-gay activists will harass voters who signed the petitions. The state Public Disclosure Commission has already rejected the group’s request to conceal the signatures and a federal judge issued a temporary order stopping release of the signatures, pending a final decision.

The Washington Secretary of State’s website has been making daily reports about the count process and the lawsuits during the past month as election officials examined each of 137,689 signatures turned in by Protect Marriage Washington. The group needed 120,577 to qualify for the ballot. Early indications suggested the rejection rate of signatures might be high enough to prevent the group from reaching the requisite number. According to the website, the rejection rate on petitions has been about 18.5 percent historically, but Protect Marriage handed in a much smaller number of signatures, meaning it had to reach a rejection rate that was under 12.4 percent to qualify. In the end, its signature rejection rate was 11.8 percent.

And then there’s Maine

Having enough signatures has not been in question in Maine. There, a coalition of groups called "Stand for Marriage Maine" turned in more than twice the 55,000 signatures they needed.... [A] measure to repeal the state’s newly passed marriage equality law has been certified for November’s ballot. That puts the law, which was set to go into effect this month, on hold.

The battle against same-sex marriage licensing in Maine is being led by anti-gay newcomer Bob Emrich, pastor of an independent Baptist Church in Plymouth, Maine -- population 1,257, according to the 2000 census. Emrich is also director of a group he calls the Maine Jeremiah Project, a 501(c)(3) named after a passage from the Book of Jeremiah that urges exiles to pray for "peace and prosperity" in their own city because if the city prospers, "you too will prosper." According to his website, these words call on him to focus on "public policy and contemporary culture."

He’s part of a coalition called Stand for Marriage that includes his group and 10 others. Marc Mutty, director of public affairs for the Roman Catholic Diocese of Portland, Maine, is chairman of the coalition group, that includes the diocese, several Catholic fellowship groups, and several national conservative organizations. Among the latter is the National Organization for Marriage, the Eagle Forum, Concerned Women of America, and Family Watch International.

Since forming its campaign committee in June, the Stand for Marriage Maine coalition has taken in $343,690 in contributions -- 99.7 percent of which has come from only three entities: the National Organization for Marriage ($160,000), the Portland diocese and affiliated groups ($152,000), and the state chapter of Focus on the Family ($31,000).

This unusual concentration of funding -- only a few hundred dollars coming from individual donors -- set off the bells and whistles for one pro-gay California activist. Fred Karger, founder of Californians Against Hate, contacted the Maine Commission on Governmental Ethics and Elections Practices. He suggested it could be a sign that the organizations are "trying to hide the true identities of those contributing to the campaign," which could run afoul of state election funding laws.

Jonathan Wayne, head of the commission, said a ballot question committee, like a political action committee, must accurately report the source of its contributions. He said his commission has asked Karger to "reformulate his request" to provide more specific information before it proceeds. The commission has also given Stand for Marriage an opportunity to respond to Karger’s concerns.

Meanwhile, the key group working against the referendum, "No on 1: Protect Maine Equality," has raised $143,290 -- only $35,000 of which has come from national groups ($25,000 from the Human Rights Campaign and $10,000 from the ACLU). Equality Maine, another group working to defend the equal marriage law, has raised $63,561 -- of which $20,000 came from a national group, the National Gay and Lesbian Task Force....

September 07, 2009

Safer schools in North Carolina

Since one of the first posts on this blog, a little more than a year ago, was about the failure of the North Carolina legislature to pass an anti-bullying bill because it would protect gay and transgender kids, I thought it only fair to note that this year, the legislature got the job done. 

The NC School Violence Prevention Act was signed into law by the Governor on June 30. It requires each local school district to adopt, publicize and enforce explicit anti-bullying policies. The new law squeaked by in both houses of the state legislature: by votes of 26 to 22 in the state senate and 63 to 51 in the house.

The act is the first state-wide law in NC to protect against any form of discrimination based on sexual orientation or gender identity and the first state-wide law in any southern state to protect against gender identity discrimination. Congrats to Equality NC!

September 06, 2009

New structural intervention strategies for AIDS prevention emerging in San Francisco

The Stop AIDS Project in San Francisco has begun presenting initial findings from its Where study, which it undertook in conjunction with the University of California San Francisco, the San Francisco Department of Public Health and the California STD/HIV Prevention Training Center.

From Bay Area Reporter:

... [T]he Where study ... collected feedback from nearly 200 one-on-one conversations – mainly with local gay men – concerning different ways to improve the environments of local bars, sex clubs, and cruising Web sites to create an atmosphere more conducive to safer sex.

This approach to HIV and STD prevention, known as structural intervention, is pioneering in that it places an emphasis on making changes at high-risk venues as a means to reduce the number of infections. It's more common that prevention strategies focus on altering high-risk behavior of individuals, not places.

Eventual structural intervention programs may include creating easier access to free water in bars, promoting Web sites for "protected sex only," or providing wrist bracelets at sex clubs reflecting sexual preference, desired acts, positions, or HIV status. The Where study includes over 50 such suggestions, all of which will be further evaluated before any pilot programs are implemented.

Jen Hecht, education director at Stop AIDS, said that the concept of structural intervention has seen notable success on a larger scale. For example, seatbelt laws are considered a structural intervention, as are policies allowing the addition of fluoride to public tap water to prevent tooth decay. Hecht and her team members are focusing on local solutions that use the same concept; creating practices beneficial to a broad spectrum of the community, without increasing the burden placed on any individual.

"A guiding question for this project was what if we could reduce the chance of someone getting HIV or STDs without changing the frequency of condom usage?" Hecht told an audience of about 20 who gathered August 17 at the LGBT Community Center for the agency's community report on HIV data.

While Stop AIDS will continue running and developing its other programs, including those focusing on safer sex practices for individuals, the staff is introducing the new approach as a complement to these programs. Stop AIDS reported that it is the first organization of its kind to be conducting an expansive exploratory study of the concept.

"Structural interventions are not new in public health discourse, but they are new in HIV prevention," said Executive Director Kyriell Noon. "Given the fact that the number of new HIV infections in San Francisco appears to have reached a plateau, we need to do something different to effect change.

Continue reading "New structural intervention strategies for AIDS prevention emerging in San Francisco" »

September 04, 2009

New wrinkle in Perry case: conservative group appeals denial of intervention

The Campaign for California Families, which had sought to intervene as additional defenders of Prop 8 in Perry v. Schwarzenegger, has filed a notice that it is appealing the denial of its intervention motion. 

What's afoot here is an intra-movement split on the anti-gay side. CCF is distinguishable from the Yes on 8 campaign (which is defending Prop 8 since the state has declined to do so) primarily because CCF adamantly opposes not only gay marriage, but also domestic partnership laws. The Yes on 8 crew, in other words, are the voices of pragmatism and, in CCF's world view, of too much moderation.

Here's the SF Chronicle report on how Yes on 8 kept CCF out of Strauss v. Horton, the case in which various lgbt groups challenged Prop 8 after its enactment:

"We represent the people who got things done, who got Prop. 8 passed," said Andrew Pugno, general counsel for the Yes on Prop. 8 campaign. "An important part of defending Prop. 8 is eliminating arguments not helpful to our concerns."

Pugno, for example, persuaded the Supreme Court last week to bar the Campaign for California Families from intervening in the court case over the validity of Prop. 8 and the same-sex marriage ban. "That organization [CCF] represents the extreme fringe and is not representative of the coalition that got it passed," Pugno said.

This is pot calling kettle ....

HT - Shannon Minter

September 03, 2009

What is the difference between sexual orientation discrimination and gender stereotyping?

For most people, much of the time, the association between homosexuality and gender nonconformity is pretty strong, common sense, a no-brainer.  Professor Jeffrey Hirsch (Tennessee Law) noted on the Workplace Law blog that he, like the author of the Wall Street Journal Law Blog, was puzzled by a new Third Circuit decision that drew a sharp line between the two, when in reality the difference is often fuzzy. As the WSJ phrased it:

We found ourselves a bit puzzled by this distinction, which, on first blush, strikes us as a bit arbitrary: If a gay man is fired because he’s acting in conformity with the stereotype of a gay man, he can sue under Title VII. At the same time, if he’s fired because he’s gay, he can’t sue. That struck us as odd.

But if you keep up with Title VII law, the latest ruling is simply another in what is becoming a long line of courts that allow gay (or trans) plaintiffs to assert a claim for discrimination based on sex - which of course is covered by Title VII - when the adverse action turned on the individual's failure to adhere to gendered standards of conduct and appearance.

In Prowel v. Wise Business Forms, Inc., 2009 WL 2634646, the Third Circuit reversed the trial court's dismissal of the gay plaintiff's sex discrimination claim on the ground that Title VII does not cover sexual orientation discrimination.  The facts showed that he had been verbally harassed at work over a significant period of time, including having been repeatedly called "rosebud," "princess" and "fag." The Court of Appeals reasoned that the plaintiff had

adduced evidence of harassment based on gender stereotypes...[I]t is possible that the harassment of Prowel was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes...Because both scenarios are possible, the case presents a question of fact for the jury...

Yes, the reasoning is tortured, even silly, but that's the result of there being no explicit prohibition against discrimination based on sexual orientation. A lot of time, energy and money get wasted in cases like Prowel's - of which there are many - because litigants and judges have to weave their way through this logical maze.  The increasing willingness of courts to let these cases proceed to trial is another signal to Congress that it might as well pass ENDA - just make the law what it obviously should be and allow this kind of dispute to be resolved much more efficiently.

NC judges under attack for second-parent adoptions

HT to Nancy Polikoff for alerting me to the following story from the News & Observer about the backlash against progressive North Carolina judges, whose willingness to grant second-parent adoptions became publicly visible in the wake of such an adoption being upheld in the Boseman case. This will be a state to watch as conservative groups seek opportunities to enact anti-gay laws.

Hundreds of gay couples in North Carolina have turned to judges in Orange and Durham counties to give them what most courts won't: the legal right to be a parent to their partner's child. The discreet and little-known practice came to light this week in a state Court of Appeals ruling on a custody battle between a biological mother and her estranged partner, a state senator. Now that the practice has been exposed, some lawmakers and legal experts say the adoptions should stop.

The judges who granted them say they're more confident and committed than ever to extending parental rights to unmarried partners. "These are nothing but good situations, nothing but harmony and hope and a desire to care for a child," said Pat DeVine, a recently retired Orange County District Court judge who works as a substitute judge. "It's 2009, and we have situations we didn't have 20 years ago. The polar star is what's in the best interest of the child."...

"Everyone wishes there's a mother and a father and a happy family, but the truth is that our families are not like that," said Marcia Morey, Durham County District Court judge who granted Boseman's adoption in 2005. "Families come to us for answers, and we will give them based on the best interest of the child."

Such adoptions became commonplace in Durham County in 2002. Sharon Thompson, a Durham family lawyer and a former state representative, asked her county clerk of courts and local judges to consider what she had seen a few other states do: waiving the requirement that a parent forfeit rights before another can adopt.

Thompson said that citizens can waive legal rights. She argued that surrendering legal parenthood before an adoption is a benefit and protection for the parent who wishes to give up the child. Therefore, she argued, the surrender is a right that can be waived.

"I certainly didn't invent the concept," said Thompson, who has handled hundreds of these adoptions in Durham and Orange counties. "It's not widely used, but it's legally sound." Parents from across the state have hired Thompson to secure a second-parent adoption. She said that she's presented these cases in her home county of Durham and also had success in neighboring Orange County....

"If people fault me for going to Durham County, the fault is with counties that refuse to follow the law and deny adoptions simply because someone is gay," she said.

Adoption law experts say Thompson's method isn't valid. Even the Court of Appeals gently criticized the process in its ruling this week. Cheryl Howell, a family law expert at UNC-Chapel Hill's School of Government who trains district court judges, said it's a mistake for judges to view the Court of Appeals ruling as a validation of second-parent adoptions. "The statute doesn't allow for second-parent adoptions," Howell said. "I stand firm on that." ...

"The effect of this is that adoption policy can now be set by our district court judges," said state Rep. Paul Stam, a Wake County Republican and a lawyer. "All people have to do now is find one district court judge who will do what they want. That's the lowest common denominator adoption policy."

State Sen. Jim Forrester, a Gaston County Republican, said it might be time for legislators to explicitly tell judges what kind of families can adopt children. Judges, who are elected, have broad discretion to interpret and rule on laws. This often leads to very different decisions rendered in similar cases across the state. ...

September 02, 2009

Indian government unlikely to appeal decision invalidating the sodomy law

Indian government documents made public yesterday indicate that an appeal of Naz Foundation v. Government of Delhi is highly unlikely. In Naz, the High Court of Delhi ruled that the country's sodomy law, a holdover from British colonial rule, violated the national constitution. A joint document from three ministries recommends that the government not challenge the ruling. Prime Minister Manmohan Singh will make the final decision whether to direct that an appeal be filed. From the Hindustan Times:

The three ministries had been directed by the Prime Minister to firm up the government stand, following the opposing stands taken by the Home and Health ministries before the high court last year. The  [memorandum], likely to be put up before the Union Cabinet on Thursday, was prepared after meetings between the Home, Health and law Ministries. It states there appeared to be no “legal error in the judgment, which has not struck down the entire Section 377 of the Indian Penal Code (IPC)”, given by the high court on July 2.

The [recommendation was] prepared on the basis of the opinion given by union Law Secretary TK Vishwanathan. “Since the court has not struck down the entire section, and has confined itself to consensual acts in private, it will be difficult for the government to question the HC judgment,” the Law Secretary stated.

September 01, 2009

6th Circuit upholds religious group's firing of gay employee, but ACLU may have the last laugh

The Sixth Circuit ruled yesterday that firing an employee based on a religiously-inspired conduct rule is not discrimination based on religion. Instead, the court affirmed the dismissal of the openly lesbian plaintiff because it found that she could not show that it was the religious aspect of her conduct that triggered the firing. Pedreira v. Kentucky Baptist Homes for Children, 2009 WL 2707226 (6th Cir.)

There was no question that Alicia Pedreira was fired because of her sexual orientation; the defendant declared that a "homosexual lifestyle is contrary to [its] core values." Pedreira asserted that the KBHC had discriminated against her based on religion, i.e. because she failed to comply with its religious beliefs. The Sixth Circuit rejected that argument, relying on a nominalist understanding of religion as a possible basis for discrimination. "Plaintiff has not alleged any particulars about her religion that would even allow an inference that she was discriminated against on account of her religion or ... her religious differences with KBHC. ... Furthermore, Pedreira does not allege that her sexual orientation is based on her religious beliefs or her lack thereof..."

KBHC's "core values" defense may turn out to be a pyrrhic victory, however.  The ACLU, which represents Pedreira, also included an Establishment Clause claim in the case, alleging that KBHC used Kentucky state funds to promote religion. Although it shot down the religious discrimination claim, the Sixth Circuit found that the plaintiffs had state taxpayer standing in light of the $12.5 million annual state funding of KBHC for the last 10 years.  Several state officials had sought to terminate the contract with KBHC because of concerns about the use of state funds for religious activity, but the legislature responded with a special citation of appreciation for the group/s work.  Meanwhile, the report of an independent reviewer of the program included nearly 300 complaints from youth that KBHC's religious practices were coercive. In a final note, the court ruled that evidence concerning KBHC's employment policies would be relevant to the determination of whether it was using public funds to promote religion.

The upshot of the case (so far, since the Establishment Clause portion of it will continue on remand) is that a religiously-identified social services organization can fire lgbt employees, an outcome that ENDA - with its broad religious exemption - likely will not change. Although it relates to a different branch of law, the decision essentially leaves KBHC-like groups in the same posture as the Boy Scouts vis-a-vis anti-discrimination issues. In my view, the Establishment Clause questions raised by Pedreira are at least equally important, although that claim will provide no job remedy for the plaintiff.