hunter of justice

Split on abortion threatens health reform

CQ reports on an abortion impasse in the House that will hit the wall when the health reform bill goes to the floor. Anti-choice Dems are insisting that there be no allowance of abortion services in any plan to be offered in insurance exchanges, a position that would effectively preclude coverage of abortion for millions of women.

A showdown is shaping up among Democrats as abortion foes press House leaders to change the health care bill to explicitly ban abortion funding, or at least permit a floor vote on the issue. The effort led by Bart Stupak of Michigan and Daniel Lipinski of Illinois could have far-reaching implications for the fate of the legislation when the House takes up the health care overhaul late next week.

Stupak, who has been at the forefront of a group of several dozen anti-abortion Democratic dissidents, said he would likely vote against a rule providing for floor action on the health care overhaul bill if party leaders do not come his way. “I’ve got to have somewhere to responsibly express my opinion and that of my district,” Stupak said.

House Majority Leader Steny H. Hoyer of Maryland points to the abortion disagreement as perhaps the most important unresolved issue as he prepares to move the measure to the floor. Stupak said he would look for ways to work with Republicans, if necessary, and moderate senators including Bob Casey of Pennsylvania to override the decision by House Speaker Nancy Pelosi , D-Calif., to omit an outright ban on abortion funding from the legislation she unveiled Thursday.

The anti-abortion Democrats want to win language that would essentially extend the existing abortion funding ban known as the “Hyde amendment” to the new and expanded programs that would be created by the health care overhaul. Mindful that abortion is a politically divisive issue within her caucus, Pelosi and her leadership team have sought to promote a compromise, but the anti-abortion Democrats consider it to be too weak.

The compromise language is similar to current restrictions on the use of federal Medicaid funds. The provision would ensure that federal dollars are kept in separate accounts when they flow into health insurance plans, and that federal accounts could not be used to fund an abortion.

MSU Law professors propose "e/marriage"

Michigan State Law Professors Adam Candeub and Mae Kuykendall have launched a website to promote the idea, explicated in their article, E: Marriage: Breaking the Marriage Monopoly, that states should permit a couple to marry under the laws of jurisdictions other than where they live, without having to travel to those locations. If Massachusetts, for example, enacted an e-marriage provision, a couple residing in another state could avail themselves of a Massachusetts marriage. They could have the ceremony in their home location, perhaps with the officiant performing the ceremony online. However, the couple's home state would not be required to recognize the marriage. The authors argue that the e/marriage laws would create a competitive federalism in family law. 

The article abstract summarizes the proposal:

This Article advocates updating the law governing marriage formation to recognize the shift in social interactions from real to virtual life. We argue that couples can use internet communications not only to marry when separated by great distance but also to choose which state's laws will authorize their marriage. In particular, same sex couples could marry under the laws of a state that permit such unions, regardless of where they exchange vows.

States inadvertently have created geographic monopolies, requiring each marriage receiving the benefits of their licensing laws to be performed within their borders. This Article's model builds upon established precedents, such as proxy marriage and choice of law for multi-jurisdictional and internet contracts. Using the power of internet communications, our proposal allows states to compete over marriage's procedures and substance. Depending on a couple's preferences for "e-ritual" and a state's desired level of regulatory control, couples could consume the trappings of a traditional ceremony before their friends and family, without travelling to another jurisdiction, perhaps with an officiant presiding on-line from a remote location. More simply, couples could have a complete marriage ceremony in the location of their choice, but would receive a license and file necessary papers with a distant state jurisdiction.

Some states do not recognize types of marriages that other states authorize, i.e., Massachusetts same sex marriage or Louisiana covenant marriage. Every type of e-marriage will not be enforceable everywhere. We argue, however, that marriage satisfies a unique human need for socially sanctioned commitment, which a simple contract cannot satisfy, a point ignored by those who argue for a purely private, contractual approach to marriage. E-marriage can more efficiently distribute the "status good" of marriage-even if it cannot provide a legally enforceable relationship in every state. Finally, our proposal encourages a legal cosmopolitanism as individuals witness a variety of sanctioned relationships within their own places of worship and communities, defusing protracted political struggles at the state level over substantive marriage rules.

State lgbt equality laws lag behind popular opinion

According to an article in the current American Political Science Review (103 APSR 367), popular support for enacting anti-discrimination and relationship recognition laws is significantly ahead of legislative action in most states. The authors find "a surprising amount of noncongruence [between public opinion and policy adoption]—for some policies, even clear supermajority support seems insufficient for adoption. When noncongruent, policy tends to be more conservative than desired by voters; that is, there is little progay policy bias."

The NY Times Economix blog illustrates this finding in the chart below:

Bubbles are placed to represent public opinion on a gay rights issue, with bubbles farther to the right indicating greater public support. For example, the red bubble on the line for California shows that slightly less than half of Californians say same-sex couples should have the right to marry. Filled-in bubbles signify that the policy has been adopted in that state (either by legislative or judicial action). The red bubble for California, for example, is not filled in, indicating that gays in the state are not currently allowed to marry.

Let’s take a look at the graphic [below], keeping an eye on the dashed vertical line in the middle that designates 50 percent support for any given policy. Bubbles to the right of that line have support from the majority of a state’s population; bubbles to the left of the line have support from less than half the state’s population. Notice that there are many more unfilled bubbles on the right side of the line (representing policies that the majority of people support but that have not been put into effect) than there are filled bubbles on the left side of the line (representing policies that the majority of people do not support, but that have been implemented anyway).

The big outlier is Iowa, where polls show only slightly more support for gay marriage than in Virginia, but where the state supreme court last year struck down the marriage exclusion. And if this chart is correct, the anti-gay marriage forces in Maine should be able to win the referendum there next week. If they don't, it may signify the ability of lgbt rights groups to use an election to nudge public opinion over the halfway mark, at least in some situations.

Even more statistically dramatic, though, is the gap between support for and enactment of laws protecting against job discrimination. In only 2 states does public support fall (barely) below 51% - Oklahoma and Arkansas - yet there are 29 states where legislatures have rejected anti-discrimination legislation. If this chart isn't a powerful argument for Congress to step up to a politically safe plate and pass ENDA, I don't know what is.

Critical moments in New England campaigns for marriage equality

The Boston History Project sponsored a panel discussion recently in which GLAD Legal Director Gary Buseck posed questions to two of the leading advocates for gay marriage: GLAD lawyer Mary Bonauto and Vermont Freedom to Marry lawyer Beth Robinson.  The result is a window into the history of the litigation and legislative efforts across New England, beginning more than a decade ago. Listening to the video below (excerpts of the discussion, compiled by GLAD) reminded me of how profoundly local these decisions are. I found especially interesting the background on the civil unions law in Vermont - its enactment and the almost successful attempt to repeal it. And there's a very funny story about then Vermont Governor Howard Dean at the end of the first excerpt.

BDSM case goes to Supreme Court

by guest blogger Harper Jean Tobin

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions (538 F.3d 97), saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed.  Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

German registered partners entitled to same pension rights as spouses

Germany's constitutional court (the equivalent to the U.S. Supreme Court) ruled late last week that surviving partners in a registered civil partnership have a right to collect under the occupational pension scheme for civil service employees. The court found that affording such payments to surviving spouses in a marriage but excluding civil partners violated the equal treatment provision in Article 3.1 of Germany's Basic Law (the rough equivalent of the Constitution), and was not  justified by the rationale underlying the pension system. The complaint was brought by a civil servant in a registered partnership after being denied the same premium rates as married persons - a classification that also would deny his partner the right to collect on the pension in the event of his death. 

Coincidentally, the Williams Institute has just published an analysis of the discrepancies between same-sex partners and married couples in their access to employer-sponsored retirement benefits in the U.S.

An English language version of the German court's summary of the new decision is after the jump -->

DC should not eliminate domestic partnerships when it authorizes gay marriage

One of the questions associated with legalizing gay marriage is the question of what to do about existing domestic partnership laws which create some meaningful form of legal recognition for relationships in addition to the standard conjugal couple form. Unfortunately, DC City Councilmember David Catania's bill to legalize gay marriage also would terminate access to domestic partnerships. 

Big mistake.

In DC, domestic partnerships are open not just to gay or even straight unmarried couples, but also to any two people in "a committed, familial relationship." I don't have any problem with eliminating civil union laws, because typically they create only a marriage mimic status, with all of the rights and responsibilities of marriage, open only to same-sex couples. If same-sex marriage becomes legal in one of those states, there is no reason to preserve civil unions, which really are just a segregated, second-class form of marriage. But DP laws such as the one in DC have created rights for non-gay folks and/or non-couples, and they shouldn't be dropped because gay couples acquire the right to marry.

Happily, there has been something of a revolt against this part of the bill within the DC lgbt community. A Council hearing on the bill tonight, at which more than 250 people have signed up to testify, will center mostly on the merits of legalizing gay marriage and the religious arguments pro or con, and will doubtless produce a massive amount of noise and probably not a single new argument on either side. However, some of the testimony in support of the marriage bill will also oppose the DP sunset provision. I endorse the arguments being made by Nancy Polikoff, who will testify about the importance of not limiting legal protections to couples, but extending them to other family forms as well.

Other jurisdictions that move from a domestic partnership system to marriage rights for gay couples will also have to decide whether to extinguish recognition for the different sex couples and others who can qualify as DPs. Currently, coverage varies from state to state. The next place where this issue will have to be addressed will probably be New Jersey. Thinking through how non-marital family recognition laws should be structured after gay couples have the right to marry is an important issue, for the gay and straight couples who choose not to marry, for people in various other forms of familial relationships, and for family law in general.

UPDATE - The provision phasing out domestic partnerships was dropped by the committee.

European Commission warns of lgbt rights deficiencies in nations seeking EU admission

The European Commission has published its 2009 "Progress Reports" on the countries now or potentially seeking EU membership: Croatia, the former Yugoslav Republic of Macedonia, Turkey, Albania, Bosnia and Herzegovina, Montenegro, Serbia and Kosovo.

According to ILGA-Europe:

LGBT issues are covered in all reports and stronger language is used by the Commission when referring to the human rights violations of LGBT people and to the non-compliance of the states to their human rights obligations under European/Accession partnerships. It is also positive to notice that the reports give specific recommendations to the states to introduce anti-discrimination laws and policies that are in line with the EU requirements. The Reports also emphasise the need to level up ‘the protection against discrimination in practice’ in the countries where the laws were adopted (Croatia, Serbia). In particular, the Commission has criticised the governments for failing to provide adequate protection to Belgrade Pride participants which led to cancellation of the event, and for the violation of freedom of expression and association in the infamous case of Lambda Istanbul in Turkey.

ILGA-Europe's compilation of specific references to lgbt issues follows the jump -->