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36 posts from November 2010

November 30, 2010

Illinois civil unions bill passes crucial test; enactment likely

Late this afternoon, the Illinois House of Representatives passed SB 1716, a bill that would establish a system of civil unions offering the legal rights and responsibilities of marriage. The bill passed by a 62-51 vote. It now heads to the Senate, where essentially the same bill was voted out of committee today and where passage is expected to be by a bigger margin than existed in the House.

Governor Pat Quinn went to the House floor to demonstrate his support for the bill.  

One distinctive aspect of the Illinois civil unions bill is that it establishes a status open to both same-sex and different-sex couples. Only Nevada and DC have a relationship recognition law that applies equally to straight and gay couples. Four states in addition to Nevada and DC (which also allows same-sex  marriage) have civil union systems in place: California, New Jersey, Oregon and Washington.

The Illinois bill provides that "A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law."

Pentagon report finds almost 70% of service members already know someone gay in their unit

For an overall view of today's Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”, I'm using the Williams Institute's statement:

...Described as the “largest and most comprehensive” review and engagement of the military forces on any personnel-related matter, the report concludes that repeal of the military’s Don’t Ask/Don’t Tell (DADT) policy, which prohibits lesbian, gay, and bisexual (LGB) Service members from serving openly, would produce only a low risk of compromising overall military effectiveness. The report suggests that any disruptions are likely to be short-term and isolated, and can be managed with effective leadership, professionalism, and respect for all within the military.

A large portion of the report focuses on a survey of over 115,000 Service members, 70% of whom said that repealing DADT would have a positive, mixed, or no effect on a unit’s ability to “work together and get the job done.”

Research by Williams Distinguished Scholar Dr. Gary J. Gates has shown that there are an estimated 71,000 LGB men and women currently serving on active duty and in the guard and reserve forces of the US military.

Gates notes, “I am not surprised that more than two-thirds (69%) of Service members said that they had worked with someone whom they believed to be LGB.  What is striking is that among that group, 92% stated that their unit’s ability to work together was very good, good, or neither good nor poor. In general, the survey shows that fears associated with working with openly-LGB colleagues are much lower among those who have already done so.”

This was even true among Service member units who were most concerned about the possible negative effects of allowing LGB people to serve openly. While 58% of those in Marine combat units predicted that a DADT repeal would have negative effects on the unit’s ability to “work together and get the job done”, only 16% of those in these same units who said that they had worked with an LGB colleague thought that their unit’s “ability to work together” had been poor.

The report also reviews the history of other personnel changes in the military, such as racial integration, and considers the experiences of other militaries, for example, those of the United Kingdom, Canada, and Israel, which allow LGB individuals to serve openly. The report concludes that historical evidence and evidence from other countries, shows that surveys tend to overestimate the negative consequences of change and underestimate the military’s ability to quickly and effectively adapt.

Today’s report by the Pentagon will also impact current and future legal challenges to DADT. In defending the constitutionality of the policy, the federal government has argued that it is necessary for military effectiveness. However, the two most recent federal court challenges to the policy rejected these arguments, based in part on the same prior research and the experience of other countries relied upon in the Pentagon’s new Report.

In the Log Cabin Republicans case decided this fall, a federal district court judge in San Diego found that the government’s arguments about military effectiveness were further undermined by the number of LGB Service members already serving in the military, and by the fact that the military delayed the discharge of many Service members deployed in Iraq and Afghanistan until after they returned home. The Pentagon report confirms that almost 70% of Service members report having served with an LGB person. The Department of Justice has appealed the Log Cabin Republicans decision to the Ninth Circuit Court of Appeals.

“The conclusions of today’s Report will make the federal government’s constitutional arguments very difficult to make,” says Professor Nan Hunter, Williams Institute Legal Scholarship Director and Professor of Law at Georgetown University Law Center. “Essentially, the government’s expert witness – the military leadership – has changed its opinion. The rationale for courts’ deference to the military is that the armed services have a particular expertise with regard to their unique personnel system and that the consequences of disruption could be especially dire during a time of conflict. In light of today’s Report, I do not think that the Justice Department can credibly continue to make the arguments that it has made in its past briefs.”


"Member-designated" benefits may expand to meet the needs of openly gay servicemembers (and others!)

By Guest Blogger Nancy Polikoff

The long-awaited Defense Department report on issues associated with repeal of Don't Ask, Don't Tell (DADT) is now out. One of its tasks was to address the impact of repeal on various benefits available to servicemembers. The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses. But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named. The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:

We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.

This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside. With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:

There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.

The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples. The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash. But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.

November 29, 2010

Judges who will hear Prop 8 appeal range across the political spectrum

With oral argument exactly one week away, the Ninth Circuit announced which three judges will comprise the panel hearing Perry v. Schwarzenegger. From the SF Chronicle:

A staunch liberal, a conservative Republican from Idaho and a Clinton centrist were announced today as the members of the federal court panel that will hear next week's appeal of a ruling striking down California's ban on same-sex marriage.

Judges Stephen Reinhardt, N. Randy Smith and Michael Hawkins of the Ninth U.S. Circuit Court of Appeals will hear two hours of arguments Dec. 6 in San Francisco over Proposition 8, the November 2008 initiative that defined marriage as the union of a man and a woman.

The panel was chosen by random selection several months ago but was not disclosed until a week before the hearing, a court policy designed to limit the parties' ability to seek grounds to disqualify the judges.

Reinhardt, 79, a former Democratic National Committee member appointed by President Jimmy Carter in 1980, is widely viewed as the most liberal judge on the appeals court and one of the most liberal in the nation. He was one of the judges on the court panel that declared the phrase "under God" in the Pledge of Allegiance to be a violation of the constitutional separation of church and state. The U.S. Supreme Court later threw out the case on a technicality.

Reinhardt also wrote an opinion declaring that people have a constitutional right to commit suicide with a doctor's assistance. In addition, he is a member of the three-judge federal panel that found health care in California's prisons was so bad that it violated inmates' constitutional rights.

Smith, 61, was appointed by President George W. Bush in 2007. He is a former trial judge and ex-chairman of the Idaho Republican Party. One of his opinions this March dissented from a ruling that allowed parents of a child with learning disabilities to sue a school district for ignoring the problems and failing to arrange educational help. Smith said the law authorizes parents to sue only over a school's wrongful actions, not its negligence or failure to act.

Hawkins, 65, a former federal prosecutor in Arizona, was appointed by President Bill Clinton in 1994. He is generally considered a moderate Democrat, but some of his prominent opinions have sided with liberals. He dissented from a 1999 ruling that upheld a local ordinance in Alaska allowing religious landlords to refuse to rent to unmarried couples. Last year, Hawkins wrote a ruling that would have allowed foreign terrorist suspects to sue for their alleged kidnapping and torture in a CIA-run program, but an 11-judge court panel ordered the suit dismissed in September on state-secrets grounds.

Before deciding whether to uphold Prop. 8, the appeals court will consider whether the initiative's sponsors have the right to argue for the measure on the state's behalf. Both Gov. Arnold Schwarzenegger and Attorney General Brown have declined to appeal the ruling.

The losing side in the appeals court ruling could ask the full court for a rehearing before a larger panel or appeal directly to the U.S. Supreme Court.

November 24, 2010

Official California position on unconstitutionality of Prop 8 will continue

With the now finally settled election of San Francisco District Attorney Kamala Harris as California's next Attorney General, Photo the risk is over that a state official would seek to reverse the refusal of the state to defend the constitutionality of Prop 8. The Republican candidate had promised that he would seek to intervene in the pending appeal in Perry v. Schwarzenegger to present the court with a formal defense of the law and, more importantly, to inject a defendant that unquestionably had standing to appeal. Because there will be no change in the state's position of declining to defend Prop 8, the standing question - whether the proponents of Prop 8 can properly appeal Judge Walker's ruling - will remain central to the outcome of the case.

Harris, a progressive Democrat, won one of the closest races in state history.  FYI, here are excerpts from an interview with her published in 2009:

My family has a long history of civil service. My parents met when they were taking part in the civil rights movement in Berkeley, California. Growing up, I was therefore surrounded by people who were always passionately fighting for this thing called "justice." I was ultimately inspired to make my own contribution to this noble cause through public service. I went to public schools in Berkeley and then on to Howard University in Washington, DC where I decided to pursue a career in the law. After law school, instead of joining most of my friends and classmates at the big downtown firms, I decided to go to the Alameda County District Attorney's office - the same office once headed by the great Earl Warren. It was the best decision I ever made. 

Who were your heroes growing up?

Apart from my mother, Dr. Shyamala Gopalan Harris, who will always remain my greatest hero in life, my heroes growing up were the architects of the civil rights movement: the lawyers. People like Thurgood Marshall, Charles Hamilton Houston, and Constance Baker Motley demonstrated to me that progressive social change could be successfully achieved in the courtroom.

What is your position on gay marriage? Do you feel that previous marriages that have already taken place should stay legal? 

I support marriage equality. It is a civil rights issue. I opposed Proposition 8 and the recent Supreme Court decision to uphold it was a sad day in California history. The court has allowed a ballot measure to strip rights away from Californians and fundamentally alter our constitution. But the fight for equality is not over. The history of the civil rights movement is a history of perseverance in the face of adversity. I wholeheartedly believe that equal marriage rights for all will soon be the law of the land.

DADT heads for judicial and Congressional debate; Maj. Witt heads back to Air Force

The Senate Armed Services Committee will hold hearings next Thursday and Friday on the forthcoming Pentagon report about the feasibility of DADT repeal. The hearings are presumably intended to provide cover for senators who have stated their reluctance to vote in favor of repeal without first being able to read and discuss the report, set to be released on Tuesday. The timing of the hearings - as soon as possible after the release of the report, but already deep into a short lame duck session - seems to virtually guarantee that there will be a nailbitingly close finish to the effort to eliminate the DADT policy before this session of Congress ends.

On Dec. 2, the Committee will hear testimony from Secretary of Defense Gates and Chairman of the Joint Chiefs of Staff Admiral Mullen, as well as the co-chairs of the Pentagon working group: Jeh Johnson, the Pentagon’s general counsel, and General Carter Ham, commander of U.S. Army Europe. 

On Dec. 3, witnesses will include Vice-Chair of the Joint Chiefs of Staff Marine Corps Gen. James Cartwright and all of the service chiefs: Army Chief of Staff Gen. George W. Casey; Chief of Naval Operations Adm. Gary Roughead; Marine Corps Gen. James Amos; and Air Force Chief of Staff General Norton Schwartz.

Meanwhile in the federal judiciary, the Justice Department filed a notice of appeal in Witt v. Air Force, meaning that the Ninth Circuit is on track to decide both a facial (the Log Cabin Republicans case) and an as-applied (Witt) challenge to the DADT statute. Unlike in the LCR case, however, DoJ did not request a stay of the injunction ordering that Major Witt be reinstated.

Not seeking a stay was a smart move for DoJ, since they probably would have been rebuffed by the court, another humiliation in a case that has been a world of pain for them. Allowing her to return to active duty, though, certainly undercuts the argument that Justice Department lawyers relied on at trial, that her presence harms the force. This is a case they can't win for losing.

UPDATE - Turns out DoJ may still attempt to stop Major Witt from rejoining her unit. She has to satisfy re-entry qualifications before actually returning to duty, and has not yet done so. A Defense Department spokesperson told Politico:

"To date, she has provided the Air Force no evidence that she meets the qualifications necessary to serve as an Air Force flight nurse, nor has she passed a medical physical which is also a prerequisite to her reinstatement," Lt. Col. Karen Platt said in an e-mailed statement. "If Major Witt shows that she meets the prerequisites to her reinstatement at some time in the future, the Air Force, DoD and DoJ will re-evaluate whether or not to seek a stay of the judge's ordered reinstatement, pending appeal of the case." 

November 22, 2010

Georgetown Law hosts conference of experts on DADT

With signs increasing that the Senate actually will take up DADT repeal as part Posterof the defense authorization bill in the week after Thanksgiving, but no guarantee that the effort will succeed, some of the top experts on seeking reform in the administrative, judicial and congressional arenas gathered at Georgetown Law to analyze the possibilities. It's an impressive program available via webcast

In the first panel, Professors Diane Mazur and Jackie Gardina, together with Aaron Tax from SLDN, lay out possible avenues for executive action if repeal fails. Attorneys in the Log Cabin Republicans case (Dan Woods) and Witt case (Aaron Caplan), together with counsel for Victor Fehrenbach (Seth Galanter), discuss litigation strategies in the second panel. The third panel focuses on Congress, with reps from SLDN, HRC, and Servicemembers United, among others. Yours truly does the wrap-up at the end.

Mucho congratulations to the Georgetown students for organizing such an outstanding event.

On a related note - for a lovely tribute to one of the early pioneers on this issue, see Karen Ocamb's interview with former Sgt. Miriam ben-Shalom, who in 1987 won one of the few judgments ever entered in favor of a gay soldier. Last week, ben-Shalom returned to the White House fence where she had also protested in 1993, and once again did her duty.

November 21, 2010

Increase likely in anti-gay, anti-abortion state laws

The overwhelming bulk of law that regulates family formation and recognition, criminal law, health care provision, and parenting is enacted at the state level. As a result, the shift to Republican control of state legislatures is likely to generate a big uptick in conservative lawmaking in those fields. 

Unlike left-right polarization within Congress, which produces gridlock, polarization between the states leads to bigger majorities in each state for one direction or the other. It is the state level where a sharply divided political geography produces the greatest schizophrenia in American law.

After this election, the map for state-level lawmaking has a lot more red and the red is a lot darker, as the following article from the Washington Post describes:

...[The National Organization for Marriage] poured $2.5 million into state races this year, investing in more than 100 state legislative candidates. The group focused particularly on Maine, New Hampshire, Minnesota and Iowa, four states grappling with the same-sex marriage issue. The efforts paid off, with Republicans gaining at least one chamber in each of those states...

Before the midterm elections, Democrats controlled 27 state legislatures outright. Republicans were in charge in 14 states, and eight states were split. (Nebraska, which has a single legislative chamber, is officially nonpartisan). Today, Republicans control 26 state legislatures, Democrats 17, and five have split control. In New York, officials are still determining who is in charge in the state Senate. Republicans control more legislatures than they have since 1952...

"We ran on a strict fiscal message," said state Sen. Amy Koch (R), the Minnesota state Senate majority leader...Even so, though same-sex marriage advocates had until recently thought Minnesota would become one of the next states to allow such unions, Koch said the legislature is now unlikely to take up the issue. "I can't imagine we would look at that," she said. "I just think most people are focused on jobs, economy, the budget and that's what we will focus on."

And in New Hampshire, one of five states and the District that allow same-sex couples to legally wed, social conservatives cheered the results of an election that could pave the way for a repeal of that law. Republicans wrested control of both chambers and now outnumber Democrats 3 to 1 in the 400-member House. Democratic Gov. John Lynch was reelected, but Republicans have a veto-proof majority. Social conservatives plan to push for the gay-marriage ban as well as the reinstatement of a law requiring parental notification for minors seeking abortions - but not until lawmakers cut taxes and create jobs as they have promised, said Kevin Smith, executive director of Cornerstone Action, a Christian activist group.

"The social issues were for the most part silent in the election, in that it was really a fiscal message of less spending and less taxes that propelled most Republicans into office," he said. "I expect that to be the focus. That being said, I do think [these] will be two very key social issues that will come up this session."

His group joined with several others to raise about $1.2 million for state-level candidates. Since same-sex marriage was legalized there in January, about 1,000 same-sex couples have wed.

In North Carolina, Christian groups have promised to push for greater restrictions on abortions and a constitutional amendment banning gay marriage. And liberal groups are lining up to protect the Healthy Youth Act, which requires most students in grades 7 through 9 to learn about contraception in addition to abstinence - a requirement conservative groups oppose.

In Wisconsin, Governor-elect Scott Walker (R) has said he opposes the state's expansion earlier this year of a program that provides free birth control to low-income people and youth as young as 15. His agenda will be helped along by the legislature, which will now be controlled by Republicans.

Abortion foes say they expect several states where Republicans made significant gains to consider barring, under the new federal health-care overhaul, some private insurance companies from covering abortions as part of their routine plans. So far, Arizona, Missouri, Mississippi, Tennessee and Louisiana have passed such legislation.

"Ninety percent of pro-life legislation happens at the state level, so the landscape change that we have now is huge," said Daniel McConchie, vice president of governmental affairs at Americans United for Life, an antiabortion group.

November 19, 2010

VERY British, VERY white men discuss "an unfortunate and tragic quirk"

Sure, you've heard of Sir John Wolfenden and his 12001_wolfenden_on famous report, the one that changed the game for all us sodomites, but have you ever heard Wolfenden himself?  Watch this amazing video blast from the past, as Wolfenden defends his 1957 report in response to questions from a panel of British journalists, brought to you from the BBC archives.

French high court to hear gay marriage case

The Constitutional Court (or Council) of France will consider a case challenging that nation's ban on same-sex marriage. France's highest court of appeal, the Cour de cassation, referred the case to the Constitutional Council, which has sole authority to rule on whether the prohibition of gay marriage violates the French Constitution. 

According to press reports

The request came after individuals in August asked a court in the northeastern city of Reims to look at the legality of articles of the civil code which ban same-sex marriages. The unnamed individuals said the articles were unconstitutional because they "limit the personal freedom of a French citizen to marry someone of the same sex". 

The Court of Cassation said that gay marriage "is today the subject of a broad debate within society, notably because of the evolution of morals and the recognition of same-sex marriages by the laws of several foreign countries". 

According to the Court of Cassation website, the questions presented in the case (No. F 10-40042) are as follows:

"Sections 144 and 75 of the Civil Code - are they inconsistent in their application [with] the preamble to the Constitution of 1946 and 1958, in that they limit the liberty of a French citizen to marry a person of same sex? "

"Sections 144 and 75 of the Civil Code - are they inconsistent in their application [with] the provisions of Article 66 of the Constitution in that they prohibit a court judge to authorize marriage between persons of the same sex?"

Since 1999, French law has included the legal status of PACS, or pacte civil de solidarité, which is roughly comparable to civil unions. Both same-sex and different-sex couples have the option to enter a PACS, which is registered by a clerk of court. In some areas, couples signing a PACS can choose to have a formal civil ceremony, comparable to a wedding performed by a court official.

If the Constitutional Court eliminates the ban on gay marriages, presumably all couples would then be able to choose between marriage and a PACS. (This is also the outcome being sought by a new equal relationship rights campaign in Britain.) It is only in that legal environment that the goal of genuine choice in family formation could be said to exist.

November 18, 2010

HHS issues final hospital visitation reg

After considering thousands of comments on a proposed regulation requiring all hospitals that receive Medicare funds (which essentially = all hospitals in the U.S.) to develop visitation policies that allow patients to designate anyone, including same-sex partners, as visitors, the Department of Health and Human Services has issued the final regulation. It will take effect in 60 days.

Here is reporting from The Advocate, based on a conference call between Secretary Sebelius and HHS Deputy General Counsel (and former ACLU LGBT Rights Project attorney) Ken Choe with advocates:

The rule change is the result of a directive that President Barack Obama gave to HHS in April after hearing stories of people who were denied access to their same-sex partners during the critical and, in some cases, final hours of their lives.

Hospitals will be required to have written policies and procedures detailing visitation rights and the specific circumstances under which a hospital can restrict access based on reasonable clinical needs. Hospitals must also inform incoming patients of their right to choose their visitors, regardless of whether the visitor is a family member, a spouse, a domestic partner (including a same-sex domestic partner), or other type of visitor, as well as their right to withdraw such consent to visitation at any time.

Ken Choe, deputy general counsel at HHS, said no documentation will be required to prove any particular kind of relationship. Patients need only give an oral designation of whom they wish to permit access to, a designation that can also be revoked at any point during their stay.

If a patient enters the hospital unconscious, Choe said complications with access would only arise if two people claimed to be the person who should be making visitation decisions on the patient’s behalf. In that case, hospitals would be allowed to ask for documentation in order to determine who should be allowed access to the patient.

Choe said complaints can be lodged against hospitals believed to be out of compliance in several ways. All hospitals must have a formalized internal grievance process, and people can also report hospitals to their state’s Survey and Certification Process, which governs Medicare and Medicaid participation. Medicare beneficiaries can also take their concerns to Quality Improvement Organizations (QIOs) in every state.

Christian Legal Society just can't beat Hastings' defense

In Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), the Supreme Court ruled that Hastings College of Law acted constitutionally in requiring that officially recognized student organizations abide by an "all comers policy," under which any Hastings student could join any student organization. The CLS lawyers thought they had a sure winner in that case, seeing it as their ticket to expansion of Boy Scouts v. Dale into a broader principle allowing for the exclusion of openly gay members from a variety of groups. Many CLS supporters were shocked by their 5-4 loss in the Supreme Court.

On remand, CLS argued that the all comers policy was a sham, i.e., that it was applied differentially, in a way that discriminated against CLS. On Wednesday, the Ninth Circuit ruled in CLS v Wu that this, too, was not a viable claim. From SCOTUSblog:

...The Ninth Circuit Court ... said it could not find in the record enough to show that the group’s chapter at Hastings College of Law in San Francisco had actually made the argument it now wanted to press.

The CLS chapter’s lawsuit in federal court contended that the College of Law discriminates against it by denying it campus privileges because it will allow only students who share its religious views to take part in its activities. ... [T]he Ninth Circuit had upheld the school’s so-called “nondiscrimination policy” on the premise that it was an “all-comers policy” that was enforced neutrally.  In a 5-4 ruling June 28, the Court agreed.

Although the CLS has contended that the school’s participation policy was unevenly enforced, targeting only those groups that organize around religious beliefs or that disapprove of homosexuality, the Court majority said that argument “flatly contradicts” an agreement among the parties in a lower court stipulation that the policy actually was an “all-comers” participation mandate that did not depend upon a particular group’s status or beliefs.  The “all-comers” policy, viewed that way, was valid, the Court concluded.

The chapter, however, also had a second strand in its discrimination argument — that the policy, even if an “all-comers” approach as written, actually was enforced in a discriminatory way in practice.  The supposed neutrality of the policy, CLS had contended before the Justices, was a mere pretext for discrimination against religious groups.  The Supreme Court, however, found that no lower court had ruled on that argument, “and this Court is not the proper forum to air the issue in the first instance.”   It sent that question back to the Circuit Court to rule on it “if, and to the extent, it is preserved.”

On Wednesday, the Circuit Court reacted.  Borrowing a phrase used by other courts in similar circumstances, the Circuit Court panel said that “Judges are not like pigs, hunting for truffles buried in briefs.”  Though it said it had, nevertheless, engaged in an “assiduous digging” in the legal papers filed by CLS’s lawyers, it found that the discriminatory enforcement argument had not actually been put forth.  “We’ve found nothing reasonably supporting its existence,” the panel said.

In neither the CLS opening brief in the Circuit Court, nor in its oral argument there, the panel wrote, did this version of the chapter’s discrimination argument appear in a clear enough form to put it before the judges.  While it conceded that “judges sometimes overlook issues fairly presented by the parties,” the Circuit Court said, “that’s not what happened here.  CLS simply failed to raise this issue the first time around, and it is not entitled to ‘a second bite of the appellate apple.’ ”

That ruling apparently put an end to the chapter’s challenge at this stage.  The Circuit Court, however, noted that, if in the future the law school applied its policy in a way that was discriminatory, “CLS may be able to file a new lawsuit.”  But the issue can’t be addressed in this litigation, it concluded, thus formally denying the chapter’s motion to send the case back to District Court  to consider the alternative argument.

November 17, 2010

Sexual behavior and risk among adolescents in lesbian mom families

A new study based on a unique longitudinal study of lesbian mothers compares the 17-year-old children of lesbian parents to a national sample of adolescents as to sexual orientation, sexual behavior and risk of abuse. The study found a complete absence of sexual or other physical abuse. The authors also found a mixture of similarities and differences in sexual behaviors and self-identified orientation:

  • The teens in the study were significantly older than the national sample at the time of first heterosexual activity;
  • The daughters in the study were significantly more likely to have had same-sex activity than the national sample of girls; and
  • There was no difference between the boys in the two groups with regard to having engaged in same-sex behavior.

As to self-identification (for which there were no comparable data), 20% of the girls and 2.7% of the boys identified as predominantly to exclusively bisexual; none of the girls and 5.4% of the boys identified as predominantly to exclusively homosexual.

The results come from an a computer survey of 78 teenagers (39 girls and 39 boys) in lesbian families who have been part of Dr. Nanette Gartrell's National Longitudinal Lesbian Family Study since birth. The online nature of the questionnaire allowed them to answer outside the presence of their parents. The families are not representative by SES level, race or geography, but the NLLFS is by far the longest continuing study of the same cohort of gay families. 

The study is published online in Archives of Sexual Behavior, a peer-reviewed academic journal.

Pat Cain starts "Same sex tax law" blog

Professor Pat Cain of Santa Clara Law School (formerly of Iowa) is the nation's leading expert on tax law issues pertaining to same-sex couples, and she has taken the blogging plunge. Welcome!

Check it out -  The blog's URL is

Colombia says no to marriage, Mexico on path to legalize partner benefits

Mixed news from Latin America in the last week:

The Constitutional Court of Colombia rejected a petition to allow same-sex couples to marry. According to CNN:

Colombia's Constitutional Court voted 5-4 to dismiss a lawsuit arguing for a change in the country's civil code that would allow same-sex marriage in the South American country, claiming there was not sufficient evidence to proceed, CNN affiliate Caracol TV reported.

The lawsuit, filed in September 2009, aimed to change the definition in the country's civil code which defines marriage as "a solemn contract through which a man and a woman unite," Caracol said. Felipe Montoya, the lawyer who filed the suit, wanted judges to eliminate the expression "man and woman" from the code, Caracol reported. But the court ruled that the lawsuit did not have sufficient legal arguments for the court to take the case.

Closer to home, one chamber of the Mexican national legislature voted to extend social benefits to same-sex partners:

Mexico's House of Representatives has voted to amend social security rules to include medical and social benefits for same-sex couples. The vote Tuesday was 232 in favor and 58 against. The measure now goes to the Senate for debate.

The amendment deals with the Social Security Institute, which provides benefits to employees of private companies, and with a benefits program for government employees.

Unfortunately, I am unable to locate copies of the original documents in English, so am necessarily relying on news accounts. In Spanish, you can read the court decision or a longer report on the Mexican vote.