hunter of justice

What will DoJ tell the Second Circuit about DoMA?

The NY Times has made public a major angst producing question that looms before the Justice Department: whether and how to defend the constitutionality of DoMA in a circuit where there is no precedent as to the level of scrutiny required for sexual orientation classifications. In both the First and Ninth Circuits, DoJ can point to precedent developed in military cases that only rational basis review applies to Equal Protection Clause challenges to discrimination based on sex/o. Seeming simply to defer to precedent has been how the Obama administration has sought so far not to take a definitive stand on whether barriers to same-sex marriage violate the Constitution. That option doesn't play in the Second Circuit, however -

Mr. Obama, whose political base includes many supporters of gay rights, has urged lawmakers to repeal [DoMA]. But at the same time, citing an executive-branch duty to defend acts of Congress, he has sent Justice Department lawyers into court to oppose suits seeking to strike the law down as unconstitutional.

[Two new lawsuits], however, have provoked an internal administration debate about how to sustain its have-it-both-ways stance, officials said. Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.

That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful, and can choose to change their sexual orientation....James Esseks, an American Civil Liberties Union lawyer helping with one case, said the new suits could be game-changing.

The Obama legal team has not yet decided what path to take on the lawsuits, according to officials who spoke on the condition of anonymity about the internal deliberations. But the Justice Department must respond by March 11. The debate has arisen at a time when Mr. Obama has signaled that his administration may be re-evaluating its stance [and that his views on marriage rights “are evolving.”]

“I have a whole bunch of really smart lawyers who are looking at a whole range of options,” Mr. Obama said, referring to finding a way to end the Defense of Marriage Act. “I’m always looking for a way to get it done, if possible, through our elected representatives. That may not be possible.”

... [U]nder the Defense of Marriage Act, the federal government cannot recognize [same-sex marriages]. That has raised a crucial question: Is it constitutional for the federal government to grant certain benefits — like health insurance for spouses of federal workers, or an exemption to estate taxes for surviving spouses — to some people who are legally married under their state’s laws, but not to others, based on their sexual orientation?...

Justice officials have argued that the marriage act is justified, under [a rational basis] standard, by a government interest in preserving the status quo at the federal level, allowing states to experiment. And in its brief appealing the Massachusetts ruling, the department stressed seven times that a “binding” or “settled” precedent in that circuit required the easy test.

But for the new lawsuits, no such precedent exists. The Obama team has to say which test it thinks should be used. Courts give a class the protection of [heightened scrutiny] if it has been unfairly stigmatized and if its members cannot choose to leave the class, among other factors. By those standards, it could be awkward, especially for a Democratic administration, to proclaim that gay people do not qualify for it...

Judge Hitchens retires

From the SF Chronicle:

After 20 years on the San Francisco Superior Court bench, the nation's first openly lesbian elected judge says it's time to cut back on work, visit the kids and go fishing. "It's a perfect time for me. I can work six or seven days a month and pursue other loves and interests," Donna Hitchens said Friday.

Despite retiring in November, the 63-year-old Hitchens still works part-time as a visiting judge on the court she headed as presiding judge in 2003-04. There is still a full-time judge in the household - Nancy Davis, Hitchens' longtime partner and her wife since 2008.

The couple met in the late 1970s as attorneys for the feminist law firm Equal Rights Advocates. While there, Hitchens helped to start the Lesbian Rights Project, representing lesbians in disputes over custody, adoption and employment. The project took on independent status in 1988 as the National Center for Lesbian Rights, a nonprofit with a nationwide clientele...

Hitchens was elected to the court in 1990, narrowly defeating Judge Jerome Benson. A few lesbians elsewhere had been appointed as judges, she said, but she was the first ever chosen by the voters.

Much of her time has been devoted to family law cases - a familiar subject from the lengthy proceedings she and Davis went through to adopt the older of their two daughters.

Hitchens transformed the city's family courts, establishing a new division in 1997 to oversee all cases on marriage and divorce, adoption, domestic violence and juvenile delinquency. She said the system allowed the court to consolidate each family's cases and improve information-sharing, so that a judge assigning child custody would know whether one of the parents was under a restraining order because of domestic violence.

Hitchens later formed what she described as "collaborative courts" to deal with mentally ill children and the victims and perpetrators of family violence, and a "zero-to-3" court for abused and neglected infants and toddlers...

No marriage referendum for DC

The Supreme Court denied cert in Jackson v. D.C. Board of Elections and Ethics, thus effectively insuring that there will be no referendum on the equal marriage law adopted by the DC City Council in 2010.

A group of clergy led by Bishop Harry Jackson had sought a ballot question on whether overturn the marriage equality  provision, but the Board of Elections refused to authorize it.The DC Initiative Procedures Act stipulates that the Elections Board “shall refuse to accept [a proposed initiative] if the Board finds that it . . . authorizes, or would have the effect of authorizing, discrimination” prohibited under the city human rights law. The D.C. Human Rights Law prohibits discrimination based on sexual orientation. When  The highest local court, the D.C. Court of Appeals, upheld that decision last year. 999 A.2d 89 (2010).

The petitioners' primary hope lay in Chief Justice Roberts' comment when the case had gone to the Court in their effort to obtain an injunction putting the question on the ballot without going through the DC Court of Appeals.  At that point, Roberts had concurred in the denial of cert because Supreme Court consideration was premature, but noted that the petitioners' "argument has some force." 130 S.Ct. 1279, 1280 (2010).

This week's denial of cert seals the result and allows DC to duck the bullet of what would have been an ugly fight.

The other gay life: raising children in the South

From today's NY Times, excerpted:

Being gay in [Jacksonville, FL] was once a lonely existence. Most people kept their sexuality to themselves, and they were reminded of the dangers of being openly gay when a gay church was bombed in the 1980s. These days, there are eight churches that openly welcome gay worshipers. One even caters to couples with children.

The changes may seem surprising for a city where churches that have long condemned homosexuality remain a powerful force. But as demographers sift through recent data releases from the Census Bureau, they have found that Jacksonville is home to one of the biggest populations of gay parents in the country.

In addition, the data show, child rearing among same-sex couples is more common in the South than in any other region of the country, according to Gary Gates, a demographer at the [Williams Institute]. Gay couples in Southern states like Arkansas, Louisiana, Mississippi and Texas are more likely to be raising children than their counterparts on the West Coast, in New York and in New England.

The pattern, identified by Mr. Gates, is also notable because the families in this region defy the stereotype of a mainstream gay America that is white, affluent, urban and living in the Northeast or on the West Coast. “We’re starting to see that the gay community is very diverse,” said Bob Witeck, chief executive of Witeck-Combs Communications, which helped market the census to gay people. “We’re not all rich white guys.”

Black or Latino gay couples are twice as likely as whites to be raising children, according to Mr. Gates, who used data from a Census Bureau sampling known as the American Community Survey. They are also more likely than their white counterparts to be struggling economically.

Experts offer theories for the pattern. A large number of gay couples, possibly a majority, entered into their current relationship after first having children with partners in heterosexual relationships, Mr. Gates said. That seemed to be the case for many blacks and Latinos in Jacksonville, for whom church disapproval weighed heavily.

“People grew up in church, so a lot of us lived in shame,” said Darlene Maffett, 43, a Jacksonville resident, who had two children in eight years of marriage before coming out in 2002. “What did we do? We wandered around lost. We married men, and then couldn’t understand why every night we had a headache.”

Moreover, gay men who have children do so an average of three years earlier than heterosexual men, census data shows, Mr. Gates said. At the same time, there are fewer white women of childbearing age nationally, according to demographers, while the number of minority women of childbearing age is expanding...

[L]ast summer, [Valerie] Williams became pastor of St. Luke’s Community Church, one of the oldest gay-friendly churches in the city, and immediately set up a youth program. Attendance by the mixed-race congregation swelled to more than 90 from 25 in just a few months. “All of a sudden you started seeing all of these women coming out,” Ms. Mafett said. “All of them had children.”

In 2009, the Census Bureau estimated that there were 581,000 same-sex couples in the United States, Mr. Gates said; the bureau does not count gay singles.

About a third of lesbians are parents, and a fifth of gay men are. Advocacy groups argue that their children are some of society’s most vulnerable, with fewer legal protections and less health insurance than children of heterosexual parents.

Even so, their ranks have been mostly left out of national policy debates, because the Census Bureau did not conduct its first preliminary count of same-sex couples until 1990. This year, the bureau will count married same-sex partners for the first time. “We don’t know a lot about this group,” Mr. Gates said. “Their story has not been told.”

About 32 percent of gay couples in Jacksonville are raising children, Mr. Gates said, citing the 2009 Census data, second only to San Antonio, where the rate is about 34 percent...

Fifth Circuit hears argument en banc tomorrow on case testing interstate recognition of adoption decrees

Early last year, a panel of the Fifth US Circuit Court of Appeals ruled in Adar v. Smith that Louisiana was required to issue a new birth certificate naming two men as the parents of a child born in Louisiana, after the couple adopted the child together in New York. The Louisiana registrar of vital records refused to issue the birth certificate with both fathers' names because unmarried couples are not permitted to adopt in Louisiana.

Well, the court granted the state's motion for rehearing en banc, and tomorrow all the judges on the 5th Circuit will hear oral argument in the case. The state is making an insidious argument that threatens the validity of all second-parent adoptions across state lines. While conceding that the adoptions are valid in the states where they were issued and bind the parties who litigated in all states, Louisiana is arguing that the Full Faith and Credit Clause of the Constitution does not require it to enforce an adoption decree that is against its public policy.

The Full Faith and Credit Clause requires states to enforce judgments from the courts of other states, without regard to their own public policies. A state is not required, however, to give Full Faith and Credit to another state's laws. An adoption decree is a judgment, but Louisiana is saying that the law that allowed a gay male couple to adopt in New York is what is really at issue and it is not required to give Full Faith and Credit to that, at least when it comes to enforcement through issuing a birth certificate that could not be issued under Louisiana's laws.

It's an argument that should lose. The 10th Circuit ruled four years ago in Finstuen v. Crutcher that an Oklahoma statute refusing to recognize adoptions from other states by same-sex couples and provide new birth certificates was unconstitutional. In the pending case, Louisiana tries to distinguish that opinion, but also argues that it was just plain wrong. If the 5th Circuit sides with the state, that will set up a Circuit split that could only be resolved by the US Supreme Court.

The state's argument also reminds me of the permutations argued by Lisa Miller in the longstanding litigation over Virginia's obligation to recognize Vermont's determination that Janet Jenkins is a parent of the child they planned together and entitled to visitation or custody. While that case turned on a specific federal statute requiring recognition of custody rulings from other states, rather than on the Full Faith and Credit Clause, after Miller lost on Virginia's obligation to recognize the Vermont order she argued that the statute did not require Virginia to enforce the Vermont order. It's a distinction with no legal difference, and Miller keeps losing.

While this case involves two men, Oren Adar and Mickey Rae Smith, Lousiana claims it would not issue an amended birth certificate for any unmarried couple who adopted a child born in Louisiana, because Lousiana prohibits such adoptions. A friend of the court brief filed on behalf of two law professors, Joan Hollinger and Barbara Bennett Woodhouse, and one of the most distinguished family law practitioner in Texas, Harry Tindall, who was chair of the committee that wrote changes to the Uniform Parentage Act, argues that this is unconstitutional discrimination against children of unmarried parents. I find it no accident that the first US Supreme Court case declaring discrimination against nonmarital children unconstitutional also came from Louisiana.

Lousiana's response to this? Essentially they say that while it is unconstitutional to discriminate against a child born to an unmarried couple, it is not unconstitutional to discriminate against a child adopted by an unmarried couple. Really.

The court will release a recording of the oral argument (here), but probably not until next week.

cross posted from Beyond Straight and Gay Marriage

2010 election results likely to produce sharp divergence in state laws

As the map below shows, most of the state legislative sessions starting this month will be tough sledding for lgbt and abortion rights advocates. The red states in the map are those with Republicans in control of the governorship plus both chambers of the state legislature; the blue states have Democratic control of all three; and the purple states are divided (I have included Nebraska's non-partisan legislature here). Not much blue.

 

 A couple of the blue states (Arkansas and West Virginia) seem anomalous: apparently the 1950's version of conservative southern Democratic control lives on in a few spots. But in several blue states - California and Maryland, for example - the Democratic dominance of state government increased with the 2010 election, notwithstanding the overall Republican tide.

Most of the true blue states already have strong protections against discrimination, and those laws are likely to become even more progressive. Examples include half a dozen states poised to take the next step in terms of lgbt rights protections: there will be major efforts to enact marriage equality in Maryland, Rhode Island, and Washington; civil unions in Hawaii; and anti-discrimination protection for gender identity in Massachusetts. 

Below is a different map, in which states that currently have an anti-discrimination law or relationship recognition are left blank (white). This map highlights where there is or should be potential to upgrade state laws so that there is a basic level of protection for lgbt people. However, in important swing states where at least an employment law should be an achievable goal - Michigan, Ohio, Pennsylvania - there is a solid red wall. The same wall extends to large states that should be targets for job protection laws in five years: Florida, Georgia, Texas, and Virginia.

Montana is an exception to the pattern, in that it is a totally blue, non-southern state that does not have either an anti-discrimination law covering lgbt people or a mechanism for recognition of gay relationships. The ACLU has a lawsuit pending there which seeks relationship recognition, and perhaps the state will move legislatively toward job protection. There are a few other anomalies not apparent from the map, such as New York, which has one chamber under Republican control, but may be poised to enact an equal marriage law despite that.

For the most part, though, the maps illustrate that at least for the next few years, advances in lgbt rights are likely to continue...in the states that already have the best laws. And there is likely to be virtually no forward movement in the rest of the nation. On this set of issues, the red/blue split in legal and political geography is going to get much sharper. 

Canadian court nixes religious exemptions for marriage clerks who oppose same-sex marriage

The Court of Appeal for Saskatchewan, the province’s highest court, has ruled that marriage commissioners who are public employees cannot refuse to marry same-sex couples. The decision - In the Matter of Marriage Commissioners Appointed Under The Marriage Act -held that two exemptions proposed by the government to allow marriage commissioners to refuse to perform a service involving gay or lesbian partners if it offended their religious beliefs violated the Canadian Charter of Rights and Freedoms.

The government had sought a declaratory ruling as to the validity of two possible amendments to the Marriage Act (which allows same-sex marriage). The first amendment would have permitted commissioners who were employed before the law changed in 2004 to refuse to perform the services. The second proposed amendment would have created a religious exemption for all marriage commissioners regardless of when they had been hired.

Justice Robert Richards, on behalf of a unanimous court, found that both government proposals were "contrary to fundamental principles of equality in a democratic society...Both of the possible amendments offend the Canadian Charter of Rights and Freedoms. Either of them, if enacted, would violate the equality rights of gay and lesbian individuals."

In Saskatchewan, which is directly north of Montana and North Dakota, marriage commissioners are the only individuals other than clergy members who can officiate at marriages. The court noted that because many faiths refuse to marry same-sex couples, these government employees may be the only option realistically available to gay couples who want to marry.

The court of appeal wasn't persuaded by the argument that gay couples who were refused service by one commissioner on religious grounds could easily find another who would perform the ceremony:

First, and most importantly, this submission overlooks, or inappropriately discounts,  the importance of the impact on gay or lesbian couples of being told by  a marriage commissioner that he or  she will not solemnize a same-sex union.  As can be easily understood, such effects can be expected to be very significant and genuinely offensive.  It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddhist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different… 

[I]f more than a very few commissioners  do opt out of solemnizing same-sex marriages, it might well be more difficult than has been suggested for a gay or lesbian couple to find  someone to marry  them.  They might be forced to make numerous calls and face numerous rejections before locating a commissioner who is prepared to assist them.

My third concern about the arguments aimed at minimizing the impact of the amendments is that they take no account of geography.  The material filed with the Court suggests marriage commissioners are appointed with a view to ensuring that people in all areas of the Province have a commissioner or commissioners reasonably close at hand. It seems obvious that, if commissioners can opt out of the obligation to perform same-sex marriages, a situation might quickly emerge where gay and lesbian couples (particularly in northern and rural areas or smaller centres) would have to travel some distance to find a commissioner willing to perform a marriage ceremony…

In the circumstances at issue here, marriage commissioners have to make a choice.  They can either perform same-sex marriages or they can leave their offices…

The Supreme Court has repeatedly confirmed that freedom of religion is not absolute and that, in appropriate cases, it is subject to limitation. This is clearly one of those situations where religious freedom must yield to the larger public interest.

Saskatchewan Justice Minister Don Morgan said that given the "thoroughness" of the analysis, he would not be recommending an appeal to the Canadian Supreme Court.

 

Drive begins to enact gay marriage law in Maryland

The 2011 session of the Maryland legislature starts Wednesday, and it may well lead to another state's legalization of same-sex marriage before adjournment three months later, on April 11. The game changer, according to the Washington Post, is that a majority of members of the Senate's Judicial Proceedings Committee have publicly committed to voting for a same-sex marriage bill.

The Republican minority in the State Senate is likely to filibuster a marriage bill, but the Senate president (a conservative Dem who opposes it) has said he would bring the bill to a floor vote. Advocates believe that they have enough votes in the House of Delegates to pass a marriage equality bill, and Governor Martin O'Malley has said he will sign it.

But - and this is a big but - Maryland law allows residents to petition for a ballot question as to recently passed laws. A successful signature drive would put a new marriage law on hold, pending the results of a statewide referendum in November 2012.

DADT repeal process marches on

According to Defense Secretary Gates, training troops for the end of DADT and its related policies will begin "in a very few weeks." Gates told a press conference yesterday that he had a three-step plan to implement DADT repeal: 

1. Finalize changes in related regulations and policies, and get clearer definitions on benefits;
2. Prepare training materials for chaplains, lawyers, commanders and troops; and 
3. Conduct the training of servicemembers worldwide.

 From Stars and Stripes:

“We’re trying to get the first two phases of that process done as quickly as possible,” Gates said, adding he has instructed Undersecretary of Defense for Personnel and Readiness Clifford Stanley to accelerate his efforts. “My hope is that it can be done within a matter of a very few weeks so that we can then move on to what is the real challenge, which is providing training to 2.2 million people. And we will do that as expeditiously as we can.”

Many people may imagine that this training will consist of snarling drill sergeants attempting to conduct sensitivity sessions. I predict lots of jokes on late night TV as this goes forward. For me, thinking about which policies will change and how is far more interesting.

It's difficult for us civilians to wrap our minds around the kind of hyper-intrusive technicalities that comprise military regulations affecting service members' lives. Consider the following news report from Afghanistan, also in Stars and Stripes. It will be fascinating to watch how practices like this no-sex order will be affected when the institution has to admit - in a way that it never has, despite the bogus "don't ask" part of DADT under which silent gay service was supposedly ok - that gay people are in the military.

A new order signed by Maj. Gen. Jeffrey Schloesser, commander of Combined Joint Task Force-101, has lifted a ban on sexual relations between unmarried men and women in the combat zone.

General Order No. 1 outlines a number of prohibited activities and standards of conduct for U.S. troops and civilians working for the military in Afghanistan. Previously, under the regulation, sexual relations and "intimate behavior" between men and women not married to each other were a strict no-no. The regulation also barred members of the opposite sex from going into each other’s living quarters unless they were married to each other.

The new regulation warns that sex in a combat zone "can have an adverse impact on unit cohesion, morale, good order and discipline." But sexual relations and physical intimacy between men and women not married to each other are no longer banned outright. They’re only "highly discouraged," and that’s as long as they’re "not otherwise prohibited" by the Uniform Code of Military Justice, according to the new order.

Single men and women can now also visit each other’s living quarters, as long as everyone else who lives there agrees, and as long as visitors of the opposite sex remain in the open "and not behind closed doors, partitions or other isolated or segregated areas," according to the new regulation. Unmarried men and women who are alone together in living quarters must leave the door open, according to the new policy.

Men and women "will not cohabit with, reside or sleep with members of the opposite gender in living spaces of any kind," unless they are married or if it’s necessary for military reasons, the new policy states.

A cursory reading of the order would seem to suggest that unmarried men and women could have sex in their living quarters, as long as all other persons who live there agree, or if they left the door open, if they were otherwise alone. But that’s not the case, said Lt. Col. Rumi Nielson-Green, a spokeswoman for Regional Command East and Combined Joint Task Force-101.

"Sex in both scenarios … would be a chargeable offense under the UCMJ," Nielson-Green said, referring to the Uniform Code of Military Justice, in an e-mail to Stars and Stripes.

[Story continues after the jump -->]

Conservative conference shaping up as family values feud

THE event each year in DC for political activists on the right is the C-PAC (C for Conservative) conference. Thousands of activists attend, as do conservative celebrities and the entire stable of Republican presidential hopefuls, for whom it is essentially an audition. The next one is scheduled for February 10-12. but this year the biggest excitement is happening right now.  Conference organizers are allowing GOProud to participate, and some social issues (ie anti-gay and anti-abortion) groups are boycotting the event and blasting the American Conservative Union, the conference organizer. ACU's statement of principles stresses free market and limited government arguments, as does GOProud's statement of its beliefs. 

This may just be the right's version of silly fringe politics, but it is also possible that we may look back on this in a few years and see it as watershed marking the beginning of the end of the coalition of economic and social conservatives in the Republican Party. The Washington Times says that the dispute about GOProud's participation is a sign that "the alliance may now be fraying." More from the newspaper of right-wing record:

Conservative online media mogul Andrew Breitbart is supporting GOProud's foray into CPAC. "Oh, by the way. Gonna have a party welcoming Gay conservatives to CPAC. Deal with it," he said on his Twitter account last week.

Groups such as Citizen Link, the political-action arm of Focus on the Family, plan to attend this year's CPAC, but say the conference is on a short leash. "It's obvious the influence of social conservatives has been missing and there needs to be more of it," said Tom Minnery, senior vice president of Citizen Link. "If the ACU can't manage this problem that they've brought upon themselves, we'll have to make another decision."...

Andy Blom, executive director of the American Principles Project, called the move to marginalize values voters self-defeating. "The rather arrogant treatment of social conservatives by libertarians is troubling," said Mr. Blom. "Social conservatives are the foot soldiers of the movement. Marriage has never lost an election. Being pro-life does not lose elections. It wins elections. This is not only a serious principle mistake, it's a serious political mistake."...

Breitbart is a web publisher whose comments quoted above seem in line with his rightwing bad boy, Drudge wannabe persona. His website published the heavily edited Shirley Sherrod video that created a scandal and initially led to her firing, until the NAACP released the video in full, making it clear that Breitbart had manipulated the facts way beyond even "truthiness." 

Besides Focus on the Family and American Principles Project, other groups either boycotting C-PAC or threatening to next year if there isn't a policy change include the Heritage Foundation, Concerned Women for America, the American Family Association, the Family Research Council, the Center for Military Readiness, the Liberty Counsel and the National Organization for Marriage.

Well, you live by the wedge, you die by the wedge. How fitting that gay issues may start to cut in the opposite direction. The right-wing has brilliantly used anti-gay and anti-abortion politics to peel off voters from the Democrats, but now the worm turns. To the I've-got-mine economic libertarian crowd, individual freedom is gospel, and pretty much any form of choice is the holy grail. The appeal to them of allying with vaguely amusing bumpkins from uncool places is that the traditionalist rhetoric could haul in tons of votes, if not dollars. If that calculation changes, which perhaps it is beginning to, the so-called social issues crowd will be looking for a new home.

New Mexico AG says state courts should recognize out-of-state same-sex marriages

New Mexico Attorney General Gary King has issued a formal opinion indicating that courts in that state, which has no prohibition of same-sex marriages but also has not adopted equal marriage laws, should recognize the marriages of gay couples that were performed in states that have authorized them. An AG Opinion is not binding on courts, but is often persuasive.

Most significantly, the opinion states that such marriages should be recognized not only for couples who marry legally in another state and later move to NM, but also for NM residents who travel out of state in order to secure a marriage that is not available locally. This latter practice - known as evasive marriages - is often less favored under conflicts law. However, the AGO notes that NM law supports non-recognition only of marriages that conflict with "an overriding public policy." In light of precedents establishing that neither the state's law against incestuous marriages nor the law against common law marriages was sufficient to dislodge the presumption that marriages would be recognized if they were legal where performed, the AGO concludes that same-sex marriages also should be recognized.

King's AGO replaces one coming to the opposite conclusion issued in 2004 by a previous AG.

UPDATE - Nancy Polikoff notes that King's position is opposed by the state's new governor. If the issue becomes a flash point in state politics, conservatives may press the state legislature to consider "junior DoMA" legislation that would establish formal state policy against recognition. Democrats are the majority party in both chambers of the New Mexico legislature, but I don't know how the votes would come out on a DoMA-style bill.

The joys of originalism: "I don't even have to read the briefs"

California Lawyer just published an interview of Justice Scalia in which he declared that it was so obvious to an originalist interpretation of the Constitution that the Equal Protection Clause doesn't forbid any form of unequal treatment except that based on race that "I don't even have to read the briefs." Here's the key passage (the interviewer is Hastings Law Professor Calvin Massey):

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

The shallowness of this approach is really stunning. Jack Balkin takes it on, stating the obvious:

The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

Oh and BTW, Justice Scalia's riff on why it does not apply to sex discrimination is also historically inaccurate.

But let's get real - the bottom line import of this approach to constitutional interpretation (shared by many in addition to Justice Scalia) is that it eviscerates constitutional protection for marginalized and unpopular minorities, allowing (often temporary) majorities to scapegoat them for evils real and imagined and to impose legal disabilities unrelated to any legitimate, much less proportional, public goal.

Under Scalia's originalism, the only recourse for ending even the most oppressive law would be for a legislative reversal, ie, for a new majority rule. Reversing bad laws by majoritarian means is great if you can do it, but the point of a constitution as a charter of government is that some principles are structural, not merely that we the people have agreed that a few mostly 18th and 19-century practices are now off the table. Scalia would treat the Bill of Rights as an appendix of stipulated prohibitions, expandable only by constitutional amendment absent legislative action. 

An example? None better than Romer v. Evans, the decision invalidating a Colorado state constitutional amendment that would have set a higher bar for enacting anti-discrimination legislation for gay people than any other group. Other groups simply had to enact legislation (majority vote); gay people would have been required to enact another state constitutional amendment (super-majority vote to put it on the ballot and huge additional expense and effort, etc). Under the Scalia approach, no level of irrationality or animus could justify striking down Amendment 2 because the Fourteenth Amendment would not apply to sexual orientation discrimination in any situation.

Who benefits from this mode of constitutional interpretation? Well, to ask the question is truly to answer it, wouldn't you say?

Or, to paraphrase another portion of the Scalia interview in which he discusses widespread use of the "F" word (yes, this troubles him greatly):

The Scalia school of jurisprudential meanness "is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn't behave that way." 

Tracking employers that do and don't equalize partner benefits coverage

From the NY Times:

A growing number of companies are covering the extra costs that same-sex couples pay for domestic partner benefits — and even more companies are thinking about it. So we’ve decided to keep track of who is doing what in a chart at the bottom of this post.

While many companies offer domestic partnership coverage — an important benefit on its own since same-sex couples’ unions are not recognized by the federal government — some pioneering organizations are extending an even more generous policy. They’re essentially reimbursing gay employees for the extra taxes they may incur as a result of that coverage, something that married heterosexual people don’t have to worry about.

Why is this an issue? Gay and lesbian employees who are lucky enough to work at places that have domestic partner coverage are taxed on the value of those benefits (if the partner is not considered a dependent). A handful of companies cover those extra costs, but not until Google adopted that policy earlier this year did the movement to equalize benefits begin to gain traction. Apple is the latest boldface name to join the effort.

A provision within a draft of the health care overhaul bill would have eliminated the tax, but it was ultimately dropped. The Human Rights Campaign said it continued to work on getting a bill passed, but until that happens — if it ever does — employees or their employers must pay the extra tax. (Many companies will cover the costs only for same-sex partners, since opposite-sex couples have the option to marry.)...

The biggest deterrent, of course, is the cost. Many companies support efforts to eliminate the tax altogether, but they’re unwilling to cover the costs employees now face.

Wish your company’s name was on the list with a “Yes” next to it? The Human Rights Campaign has a proposal and other information on its Web site that employees can use to help build their case...

[Chart is after the jump -->]

Ninth Circuit sends Prop 8 standing issue to California Supreme Court

As they hinted was likely during oral argument a month ago, the panel of judges assigned to hear the appeal in Perry issued a unanimous ruling today that certified to California state court the question of whether Prop 8's proponents have standing to pursue the case. (The certification process enables federal courts to defer to state courts on questions of state law.) The precise question is whether California law recognizes the right of the proponents of a ballot initiative to defend its constitutionality if state officials decline to do so, as occurred with Prop 8.

I don't know California state law, and so I can't predict how the court will rule. (It is possible that the state supreme court will decline to answer the inquiry, but I do not expect that to happen.) Their decision on this point will be critical, because the Ninth Circuit today also affirmed the lower court's ruling that Imperial County lacks standing. Thus, the issue of whether the official proponents have standing will determine whether there can be a viable appeal.

The Ninth Circuit judges strongly hinted in their certification ruling that they take a dim view of the equities that would result if no one has standing to appeal Judge Walker's decision holding that Prop 8 is unconstitutional:

Although the governor has chosen not defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it.

Judge Stephen Reinhardt, a strong progressive voice on gay issues, wrote a separate concurrence blasting all sides in the case -

• blaming the plaintiffs for structuring the case so that only two counties would be covered if Judge Walker's injunction took effect and  therefore arguably only SF and LA counties would have clear standing to contest it (a new lawsuit could be required to enforce it elsewhere in the state) - this was perhaps a clever move on the standing question, but a big frustration for the appeals court;
• blaming the defendants for not assuring that an authoritative county official supporting Prop 8 intervened as an additional defendant at the trial level; and
• noting that whether it was proper for the governor and attorney general to decline to defend Prop 8 "is a matter of some debate."

The Reinhardt concurrence illustrated how the politics of litigation can operate in unpredictable ways: Judge Reinhardt is generally pro-gay, but he is also a sharp critic of how procedural issues like standing can erect obstacles to a court reaching the merits of a case. In that vein, he noted that the Prop 8 proponents "advance a strong argument" that they have standing. Mostly, though, he just blistered the lawyers:

Thus, in the end, ... the important constitutional question before us may, after all, be decided by an appellate court...and may apply to California as a whole, instead of being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans...

Note that Judge Reinhardt doesn't even mention the possibility of the outcome applying beyond California.  Also, as he stated elsewhere, even if the proponents are found to lack standing, it is not automatic that Judge Walker's ruling will be left intact; the appeals court could also vacate it on the ground that the district court, like the appeals court, lacked jurisdiction because the Prop 8 proponents lacked standing.

The only thing certain about the impact of today's rulings is that the progress of the case has considerably slowed down, and may well slip behind the challenges to DoMA as likely vehicles for Supreme Court review of marriage-related questions. Meanwhile, Judge Walker's injunction is stayed until the final ruling in the appeals process, which is unlikely to occur for many months, and possibly several years. Not to put too fine a point on it, but the 2012 election will probably come and go before this case is finally resolved.

International human rights minus abortion = U.S. future?

A European Court of Human Rights decision that I wrote about a few weeks ago upheld most aspects of an Irish law that forces women seeking abortion to travel to the UK. Linda Greenhouse envisions it as a portent for the U.S.:

...[A]s I finished reading this opinion, I had the eerie feeling that I was peering into a domestic future.

As Robert Pear of The Times noted recently, the political climate in Congress has grown much more hostile to abortion rights since the November election. Representative Joe Pitts, a Pennsylvania Republican, will be in charge of a House subcommittee with jurisdiction over many abortion-relevant subjects, including private health insurance, Medicaid, the Food and Drug Administration, and the National Institutes of Health. He is one of the leading opponents of abortion on Capitol Hill and was put forward for his new position by the National Right to Life Committee.

And as Robert Barnes of The Washington Post observed in a long article this week, states are erecting new obstacles to abortion in the expectation that the current Supreme Court is likely to uphold at least some of them. States are moving to ban abortion even before fetal viability, a direct challenge to existing Supreme Court precedent. In the name of “informed consent,” some states now require doctors to “inform” women that abortion has negative psychological effects and increases the risk of breast cancer, both of which are untrue. (Recall that Dr. C. Everett Koop, the Reagan administration’s surgeon general and a strong opponent of abortion, was given the task of with finding evidence of a psychological “post-abortion syndrome” and reported back to the White House that there was none.)

Obviously, not all states would choose to join the anti-abortion bandwagon, even if they had the Supreme Court’s permission. California, New York, the District of Columbia, Connecticut and Massachusetts (once two of the most anti-abortion states, but times change) would remain places of refuge for desperate women, Englands to the Irelands that are Wyoming (which has no abortion provider), the Dakotas, or the Deep South, where a shrinking handful of doctors provide abortions in a hostile regulatory climate. More than a third of all women live in counties without an abortion provider, and that number is growing. Long-distance travel is made more onerous in the half of the states that require 24-hour waiting periods after “counseling,” necessitating two trips or an overnight stay.

Yet abortion remains one of the most common of all medical procedures. Nearly a quarter of all pregnancies end in abortion; put another way, nearly half of all pregnancies are unintended, and of those, 40 percent are terminated. One out of every three American women will have an abortion by the age of 45.

And if they can’t get the care they seek at home, where will they go? As the European Court of Human Rights seems to assume, there is always the airport.