hunter of justice

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.

TRO stops enforcement of Oklahoma abortion law

An Oklahoma state court judge has issued a temporary restraining order to stop enforcement of what would be the nation's most intrusive reporting statute. The Oklahoma law would require the reporting of potentially identifying (although anonymous) information about every woman obtaining an abortion, as well as including her reason for wanting an abortion. The Center for Reproductive Rights sought the TRO after the state received a postponement of the hearing on a motion for preliminary injunction until after the effective date of November 1.

According to Women's e news:

...Former state Rep. Wanda Jo Stapleton, an Oklahoma City Democrat who brought the lawsuit with Lora Joyce Davis, [said], "This is one of dozens of bills piled on year after year by the Oklahoma legislature to place obstacles in the path of women. The bill points a public finger at women and is intended to scare them to death."...

... "The Oklahoma bill takes all of the intrusive information from very personal questions and puts it all in one place," said Elizabeth Nash, who specializes in state policy for the Guttmacher Institute. "It's the most egregious."...

"Women in small towns can be identified by nosey neighbors or, equally important, they can be misidentified when the guessing games start," Stapleton said....The measures are just the latest round in an "avalanche of anti-choice bills" proposed in Oklahoma since 2005 when "extremist Republicans" took control of the state House, Stapleton said.

N.Y. Court Slams Doctor’s Note Requirement for Name Change

by guest blogger Harper Jean Tobin - cross-posted to T-Equality Blog

A New York appeals court yesterday issued a two-page ruling overturning a lower court’s requirement that a transgender man present medical documentation supporting his petition for a name change. The NYC-based Transgender Legal Defense and Education Fund, which represented the petitioner, said in its press release:

[T]he appellate court wrote, "[t]here is no sound basis in law or policy to engraft upon the statutory provisions an additional requirement that a transgendered-petitioner present medical substantiation for the desired name change."  The court's decision sends a powerful message that transgender people must be treated equally and that they cannot be subjected to different legal requirements than everyone else. People’s names are fundamental to their identities.  This decision confirms that each one of us has the right to be known by a name we choose.  That decision can’t be second-guessed by doctors, therapists or anyone else simply because someone is transgender.

Upon learning of the ruling, Olin [Winn-Ritzenberg, the petitioner,] said, "This means that I can finally change my name and move forward with my life.  My gender transition has been a very personal journey, and no one is in a better position to decide that I need to change my name than I am."
…

It’s well settled in law around the country that transgender folks can follow the same simple procedures for name change as individuals who are changing their names because of marriage, religious conversion, or for any other reason. Yet, around the country, judges periodically try to make it harder for trans people than for anyone else. Despite numerous prior New York court decisions supporting the right of transgender individuals to change names without meeting any special requirements, this particular lower court had been imposing the “doctor’s note” requirement routinely on transgender individuals. While most individuals were able to comply, TLDEF appealed in this case to get rid of this requirement once and for all. Kudos to them, and to the numerous other lawyers who assisted in this appeal, including Lambda Legal.

The terse decision concludes with the unnecessary statement, which has somehow become boilerplate for New York courts, that the grant of a name change is not legal proof of change of gender.

Harsh new abortion law looms in Oklahoma

An Oklahoma state court judge will hear arguments October 30 on a motion for preliminary Injunction filed by the Center for Reproductive Rights to stop a new law from taking effect that would set up web-based reports containing information about women seeking abortions. Under the law, the Oklahoma health department will post information about women who obtain abortions, including race, age, marital status and the reason for the abortion. Doctors who do not report the information to the health department would be subject to civil and criminal sanctions.

The challenge is not to the constitutionality of the law as it infringes on individual liberty, but instead argues that the law violates a provision of the Oklahoma state constitution that forbids any statute from having more than one subject. The claim is based on the range of requirements and prohibitions in the bill imposed on various actors (including a ban on sex-selective abortions as well as the reporting requirements).  From The Guardian:

Women seeking abortions in Oklahoma are to be forced to reveal an array of personal information, such as the state of their relationships, how many children they have and their race, which will be posted on an official website. Abortion rights groups say the new law is intended to intimidate women because, although it does not require them to reveal their names, other information to be made public will sometimes be enough to identify them.

The move, which takes effect on 1 November, comes after a judge struck down a law that would have forced women to undergo an ultrasound and to listen to a doctor's description of the embryo or foetus before a termination.

Abortion rights groups have filed a lawsuit to try to block the new law, which requires women seeking abortions to provide doctors with answers to 34 questions including their age, marital status and education levels, as well as the number of previous pregnancies and abortions. Women are required to reveal their relationship with the father, the reason for the abortion and the area where the abortion was performed. Doctors are obliged to pass the information on to the Oklahoma health department, which will post it on a public website.

Jennifer Mondino, a lawyer for the Centre for Reproductive Rights, said the reporting requirements were intended to "make women more nervous about going to [abortion] doctors". "The intent of this law is to further restrict access to abortions in Oklahoma," she said. "There are a number of states that have a reporting requirement but not as broad and detailed as in Oklahoma. It's very unusual to consider putting such detail about patients on a website."

Oklahoma was a state with a small population, Mondino said, and "questions about race, number of children, other details can be used to identify a patient. There's a trend in Oklahoma, every year putting out new laws intended to restrict women's access to abortions and to make it harder for doctors to provide them," she said.

Doctors face prosecution and loss of their medical licences for failing to provide the state with the required information. Mondino said that would make doctors hesitant to perform terminations for fear of unintentionally falling foul of the law. "Anti-choice advocates in other states watch and see what happens in Oklahoma. Oklahoma has become a leader in this," she said.

Two years ago, Oklahoma passed a law barring public funds from being used for abortions with the exception of rape or incest. The effect has been to prevent virtually all hospitals in the state from carrying out terminations because they are unable to prove that some part of the procedure has not been subsidised by public money. Many hospitals had in any case already stopped terminations under pressure from politicians and intimidation by anti-abortion groups. About 96% of the state's counties have no abortion provider and most women seeking terminations have to travel.

Last month a judge struck down a state law requiring a doctor about to perform an abortion to carry out an ultrasound with the screen positioned in front of the mother and to then describe the developing limbs and organs of the foetus. The woman could not be forced to look at the screen but would have no choice but to listen to the doctor's description. The law required that the ultrasound be carried out vaginally if the pregnancy was in its early stages in order to get a clear picture. Rape victims were not exempted.

The sponsor of that law, the Republican state senator Todd Lamb, said it was intended to give the mother "as much information as possible about that baby" because it might grow up to win the Nobel prize.

The legislation was successfully challenged because the Oklahoma state constitution requires laws to address only one subject at a time. The ultrasound legislation also restricted use of the morning-after pill. The attorney general is appealing against the ruling. Lamb is also behind the latest law, which opponents are challenging on similar grounds. About 10% of pregnancies in Oklahoma end in induced abortions.

NY Court of Appeals hears challenge to recognition of out-of-state s/s marriages

New York's highest court heard arguments today in two cases raising the question of whether marriages involving same-sex couples must be recognized by the state if they were legal where and when performed. Following are excerpts from the NY Times report:

...The cases ... concern relatively narrow executive and administrative orders in recent years that extended benefits like health insurance to same-sex spouses of government employees who married in jurisdictions where such marriages are legal, and, in one county, required local officials to treat same-sex couples as married. But a broad enough ruling by the Court of Appeals could force businesses and local governments in the state to recognize out-of-state marriages between same-sex couples, effectively legalizing the unions of thousands of New Yorkers who were married in Vermont, Iowa, parts of Canada and other places where same-sex marriage is legal.

In one of the cases, opponents of same-sex marriage are challenging a 2007 policy, adopted by the State Department of Civil Service, that extended health insurance benefits to the same-sex partners of state and local government employees who married in states that allow such marriages. In the other case, opponents are seeking to overturn an administrative order issued in 2006 by Andrew J. Spano, the Westchester County executive, directing county officials to recognize same-sex unions performed elsewhere.

The plaintiffs in both cases are being represented by the Alliance Defense Fund, a conservative legal-advocacy group based in Scottsdale, Ariz., whose lawyers have argued that state officials and Mr. Spano exceeded their authority. Lower courts have sided with state and local officials in the two cases.

The fund is also coordinating the legal fight against a much broader executive order on gay unions that Gov. David A. Paterson issued in 2008. It required all state agencies to revise their policies and regulations to recognize gay couples legally married out of state. While the legal challenge to Mr. Paterson’s order has not yet reached the Court of Appeals, questioning by the court’s judges during arguments in the two narrower cases raised the possibility that they might leapfrog to the larger question raised in all three cases: whether New York must recognize same-sex marriages performed elsewhere, even though such unions are not allowed in the state.

“I guess what I’m struggling with is, the marriage-recognition rule would not be unique to state government,” said Judge Victoria A. Graffeo, referring to the legal doctrine under which most marriages legally performed in one state are generally recognized in other states. “That would also apply to the private sector, then, if our court indicates that the marriage-recognition rule requires the recognition of these marriages.”...

A profile of Justice Moreno, the lone dissenter in Strauss v. Horton

From the LA Times:

For most of his eight years on the California Supreme Court, the low-key and affable Carlos R. Moreno largely blended in with the six other justices, building a reliably middle-of-the-road record. Then came Proposition 8, the initiative that reinstated a ban on same-sex-marriage. In May, Moreno cast the court's only vote to overturn it.

Now, with the court's term concluding last month, the jurist chosen because of his moderate views is getting a second appraisal from legal analysts, who say his unexpected boldness may signal a growing independence. His lonely stance has raised his profile and encouraged speculation that he may be stepping into a more visible role.

Moreno, in several interviews, offered some of his most extensive comments on the controversial decision, which he weighed while he was under consideration for a seat on the U.S. Supreme Court.

The court's lone Democrat, born in Los Angeles to Mexican immigrants, ... Moreno has tended to vote with the court's more liberal jurists -- Joyce L. Kennard and Kathryn Mickle Werdegar -- and he joined a narrow majority in May 2008 to overturn the state's ban on same-sex marriage. But he had never come close to becoming a liberal icon like Stanley Mosk, the late justice whom Moreno replaced. Court analysts were more likely to commend Moreno for congeniality than for courage.

"His signature opinion to date is his dissent in the Prop. 8 case," said Jon Eisenberg, an appellate lawyer. "He did not stay under the radar. He took a position without regard to the consequences. . . . That was unusual for him because he threw caution to the wind."

Embracing a novel theory, Moreno said he "legally and morally" believes that a measure that strips a minority of a key right can not be approved as constitutional amendment by a mere majority in an election. That's a stance the state court has never taken and, had President Obama nominated him to the U.S. Supreme Court, it could have doomed his appointment.

UC Irvine Law School Dean Erwin Chemerinsky said it was remarkable that Moreno held to his position on Proposition 8 once he learned of his candidacy. "He knew he was being considered for the U.S. Supreme Court, and it would have been very easy for him in a 6-1 case to make it unanimous," Chemerinsky said. Moreno, who has a gay nephew and lesbian niece, said in his dissent that the ballot measure was a threat to all minorities.

"Feelings about same-sex marriage are really generational," Moreno said over lunch at a Peruvian cafe near his San Francisco chambers. "The bans against interracial marriage were at one time widely accepted, but no one would tolerate that kind of restriction in modern times. And I think the same is true for gay marriage."

Moreno also was the only member of the court to marry a gay couple before voters reinstated the marriage ban. One of his law clerks asked him to do the honors. Chief Justice Ronald M. George, who wrote the historic ruling that first allowed gays to wed in California, also had been asked to marry gay couples. He refused, saying it might create an appearance of conflict if Proposition 8 passed and came before the court. Moreno said he concluded it would be "discrimination" to refuse, because same-sex marriage at the time was legal....

A review of court decisions over a recent 15-month period found Moreno agreed most often with George. He disagreed with the court's conservatives as often as with its liberals."So he is very much dead center," said Santa Clara University Law Professor Gerald Uelmen, who did the analysis. Still, those who know Moreno say he is personally closest to the court's more liberal justices and more likely than George to vote with them. Chemerinsky called Moreno "one of the more liberal judges on a fairly conservative court."

Although Moreno has shown independent streaks before, he said he believes "the law should develop incrementally." "I am not in favor of big leaps," he said. He prefers the label "careful" to "cautious," though he adds, "I don't think that 'cautious' is too far off the mark."

Asked whether his years on the court have made him more confident and willing to dissent, he hesitated. "It takes quite a bit for me to dissent," he said. "On a court like ours, we try to accommodate. It is only the last resort that any of us dissent."

Lambda settles Benitez case

Last year, Lambda Legal won a decision in the California Supreme Court that a private medical practice could not assert the religious beliefs of its doctor-owners as a defense to a claim that a lesbian had been denied services because of her sexual orientation. Yesterday, rather than take the case to trial, the defendants agreed to settle with the plaintiff, Guadalupe Benitez.  Mucho kudos to lead counsel Jenny Pizer.

From the San Diego Union Tribune:

A long-running lawsuit between an Oceanside lesbian couple and two doctors that pitted the civil rights of same-sex couples against religious freedom for physicians has been settled. The terms of the settlement were not disclosed. It ends a lawsuit filed in 2001 by Guadalupe Benitez against Drs. Douglas Fenton and Christine Brody at North Coast Women's Care in Vista.

Benitez alleged that the doctors told her they would not inseminate her because their religious convictions – they are Christians – prohibited them from doing the procedure for a lesbian couple. Benitez went to another doctor, got pregnant and had a child with her partner, Joanne Clark. The boy is now 7. The couple also have 4-year-old twins....

  ... [T]he doctors and the couple released a joint statement in which the doctors said they were sorry that Benitez and Clark felt they were being treated differently because of their sexual orientation. The doctors said they want “all of their patients, including those who are lesbian and gay, to feel welcome and accepted in their medical practice, and are committed to treating all of their patients with equal dignity and respect in the context of the highest quality of medical care.”

The doctors contended as the case went on that they declined to do the procedure because Benitez was unmarried – not because of her sexual orientation. But there was also evidence in the case early on that the doctors had acknowledged that they did not inseminate her because she is a lesbian....

“It was a really hard thing to go through, but it was worth it because we have hopefully paved the way for other people, and made sure that this is not going to happen to someone else,” [Benitez] said....

The state's civil rights law ... allow[s] doctors to opt out of some kinds of medical procedures, such as abortion. But if a physician does offer to do certain procedures, they must be made available to all, said Jennifer Pizer of Lambda Legal, an advocacy group for same-sex rights.

While the exact amount of the settlement is private, Pizer said it was enough so that the couple's children “will be able to have whatever type of education they want to have in the future.” ...

NC judges under attack for second-parent adoptions

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

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

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

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

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

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

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

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

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

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

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

Carolina lavender

Two pieces of good news for lgbt advocates in ye olde home state:

• The North Carolina Court of Appeals upheld a second-parent adoption in Boseman v. Jarrell. See Nancy Polikoff's blog for analysis of the decision. The extra bonus is that the plaintiff who won the case - Julia Boseman - is the first and only openly gay member of the state legislature.  She is the state senator who represents Wilmington (ye olde home town).

• The Durham City Council voted unanimously to endorse marriage equality for same-sex couples.  According to the News & Observer:

The [Durham] City Council got a standing ovation Monday night when it unanimously passed, without discussion, a resolution supporting civil marriage for same-sex couples.

"It is simply a statement" and has no effect on the law, City Attorney Patrick Baker said before the vote. Nevertheless, when the outcome was announced much of the full-house audience in the council chamber broke into applause and then stood.

The resolution states:

"The City Council of the City of Durham endorses and supports the rights of same sex couples to share fully and equally in the rights, responsibilities and commitments of civil marriage."

Matt Coles on the Iowa decision: political power and calling out religion

By Guest Blogger and ACLU LGBT Rights Project Director Matt Coles

The Iowa Supreme Court decision striking down the state’s exclusion of same-sex couples from marriage is the third from a state high court to treat government discrimination against gay people generally as a serious constitutional problem (the other two are the California and Connecticut marriage cases).  All three courts say that a long history of discrimination driven by prejudice should make courts suspicious anytime the government singles gay people out.  While there are some differences in details, the three decisions in essence say that if the government claims that gay people are truly different (and therefore should be treated differently), it has to back the claim with proof, not speculation. 

The demand for proof is a crucial.  The argument that is most often used against us in marriage cases is that children do best with a mother and a father, and that marriage is set up to promote heterosexual parenting.  For quite a few years now, there has been solid scientific evidence that sexual orientation has nothing to do with the ability to be a good parent.  That’s why we have support from all of the nation’s major child welfare organizations. 

 

But as long as the courts were willing to let discrimination stand if the justification for it was “conceivably” logical in the abstract, it was tough to win the parenting argument.  But when proof is required—as the Arkansas case on foster parenting in 2006 showed—we are in much better shape.

These three state high court rulings are not limited to marriage; they apply to any form of government discrimination.  So they should be a help in cases involving schools, jobs and most particularly, cases about adoption, foster care and parenting

Of course, these rulings technically apply only in the three states (and the three are among the best on government policies and gay people).  But I think these opinions will be influential in many other states as well....

 

In deciding whether to be suspicious about government discrimination against a group, the U.S. Supreme Court often looks at whether its members appear able to protect their interests through the political process (although all of these cases are based on state constitutions, most state courts use the analyses that the U.S. Supreme Court uses for the federal constitution, even if they often come to different conclusions than the U.S. Supreme Court does).  Several of the bad opinions that say there is no reason to be concerned about discrimination against gay people point to state laws against sexual orientation discrimination on the job or in housing.  Those laws, the bad decisions say, prove gay people are not politically powerless.

 

As the California court pointed out, if an absolute lack of current political influence were the measure, there’d be no reason to be concerned about government discrimination based on race, religion or sex, since all those traits receive far more comprehensive legal protection everywhere in the United States.  But all U.S. courts continue to treat race, religious and sex discrimination as deeply suspicious. 

 

The Iowa case, following California and a very powerful part of the Connecticut opinion, says that as used by the U.S. Supreme Court, the question is not whether the group has some political influence, but whether it has the capacity to bring a prompt end to discrimination against it.  That, the opinions say, is why we continue to be deeply skeptical of race and sex discrimination, and should be skeptical of sexual orientation discrimination as well. 

Huge victory in Iowa gay marriage case

The Iowa Supreme Court ruled this morning that the ban on same-sex marriage violates the Iowa state constitution's equal protection clause. The court cuts off any impulse in the legislature to opt for civil unions, saying that "a new distinction based on sexual orientation would be equally suspect."

...the statutory language must be applied and interpreted in a manner allowing gay and lesbian people full access to the institution of civil marriage.

Iowa followed Connecticut in applying an intermediate level of scrutiny, rejecting the defense argument that rational basis was the appropriate standard.

Lambda Legal won two critically important firsts in this case: the Varnum v Brien opinion was unanimous, the first time that any marriage case has been won by more than a one-vote margin; and the victory came in Iowa, widely perceived as an all-American, proudly midwestern, emphatically non-New England state. 

For all these reasons, I think that this decision may come to be seen in retrospect as almost as important as the first, breakthrough decision in Massachusetts.  In public perception, it could all but erase the massive defeat in California in November, and it cannot help but provide energy to the New England states where legislatures are on the brink - if not this year, soon - of enacting equal marriage laws. To me at least, unlikely as it may sound, Iowa feels like a tideturner.

Advocates will now switch to the job of defending the decision. Iowa allows voters to amend the state constitution, but only after both houses of the state legislature, in two consecutive sessions, pass a proposed amendment.  According to the Des Moines Register, the earliest this issue could get on the ballot is 2012.

It will be fascinating to map the moves in public opinion over the next several years. A fall 2008 public opinion poll found that 28% of Iowans supported same-sex marriage, another 30% supported civil unions, and 32% opposed both. As always, it's all about that movable middle.

(The court also released a shorter summary of the opinion.)

Will court nudge the legislature in New York?

New York's highest state court, the Court of Appeals, granted review yesterday in two cases in which conservatives challenged lower court decisions recognizing out-of-state same-sex marriages as valid. The Alliance Defense Fund, which represents the parties who just persuaded the court to hear their cases, is probably ecstatic. Since lgbt rights groups had won the lower court decisions, they tried - unsuccessfully - to persuade the court not to hear the appeals.

One case, Godfrey v. Spano, 871 N.Y.S.2d 296, stems from the Westchester County executive’s 2006 decision to begin officially honoring out-of-state marriage licenses for gay couples the same way it did for heterosexual couples.

The other case, Lewis v. New York State Department of Civil Service, 872 N.Y.S.2d 578, was filed after the department agreed in 2007 to begin recognizing out-of-state, same-sex marriages for the purpose of extending health insurance to spouses of public employees.

So, on the face of it, not good news for the lgbt team.  Meanwhile, there is another major battle brewing in the state. The marriage equality bill is bottled up in the wildly dysfunctional New York State Senate, creating such a mess that the Majority Leader told an HRC dinner that it was a no-go for this year.  That really slapped a wet blanket on the crowd, not least because it was lots and lots and lots of gay dollars from around the country that fueled the Dems' takeover of that particular legislative body.

So, the worst case scenario is that everything goes to hell in New York this year: the court rules that out-of-state marriages can't be recognized until New York's legislature clearly signals that the state's public policy has changed and the NYS Senate sinks deeper into the morass of budget crisis and paralysis.

On the other hand ... maybe the pendency of these two cases will jolt the Senate out of its perennial coma. If the Court of Appeals reverses the lower court decisions, there will be a fair number of New York couples stuck in a weird position very similar to that of the 18,000 in California: they were married where the marriage was lawful (probably most in Massachusetts) at a time when their state of residence (NY) recognized the marriage. But suddenly, their marriage is in legal limbo. This situation - or even the threat of it materializing - makes it urgent for the legislature to do something.

If that scenario plays out, yesterday's court's decision will have produced a very big silver lining for lgbt advocates and a pyrhhic victory for ADF.

Kansas jury acquits doctor who performed late-term abortions

After years of investigations and four days of testimony, jurors in Wichita took just 45 minutes on Friday to acquit a controversial abortion doctor of charges that he performed 19 illegal late-term abortions in 2003. Kansas law permits late-term abortions when two independent doctors agree that the pregnant woman would be irreparably harmed by giving birth. Prosecutors charged that the doctor, George Tiller, had an improper financial relationship with a doctor from Lawrence, Kristin Neuhaus, who provided a second opinion in the 19 cases cited.

Dr. Tiller’s clinic is one of three in the United States that perform late-term abortions, and he has been reviled by anti-abortion forces for decades. In 1986, a bomb exploded on the roof of his clinic here, Women’s Health Care Services. In 1991, some 2,000 protesters were arrested outside during summer-long protests; in 1993, Dr. Tiller was shot in both arms by an anti-abortion activist while driving away from the clinic. Protests continue there almost daily.

“It’s been a long ordeal for his patients, Dr. Tiller and his family,” the lead defense lawyer, Dan Monnat, said Friday outside the courtroom. “They’re just happy it’s over.” Dr. Tiller could have faced a year in jail and a $2,500 fine on each of 19 counts.

Two dozen law officers stationed themselves in the courtroom to maintain order as the verdict was read, and spectators, most of whom identified themselves as abortion opponents, were searched before entering. A few appeared to pray, but there were no outbursts. Anti-abortion protesters demonstrated outside the courthouse all week.

The Rev. Patrick J. Mahoney, director of the Christian Defense Coalition in Washington, called the verdict “a setback.” Mr. Mahoney said that had jurors voted for conviction, “they would have put him out of business.” But Mr. Mahoney, who had predicted that the trial would “energize” anti-abortion forces, said it was a “very technical case” that was not relevant to other legal and legislative challenges to abortion.

Assistant Attorney General Barry Disney, who prosecuted Dr. Tiller, said the quick verdict probably resulted from the fact that the issue before jurors was clear and concise. “There wasn’t a lot for them to go back there and argue,” Mr. Disney said.

During testimony, both Dr. Tiller and Dr. Neuhaus, the only witness called by prosecutors, denied that there was anything improper about their financial relationship. Dr. Neuhaus testified that she misspoke during a 2006 deposition when she called herself a “full-time consultant” for Dr. Tiller.

The trial is not the end of Dr. Tiller’s legal problems. The state Board of Healing Arts is investigating a complaint that mirrors the accusations made in the trial.

Source: N Y Times

 What the Times article omits is the connection, however slight, between Dr. Tiller and Govenor Kathleen Sibelius, President Obama's nominee as Secretary of HHS.  The right-wing has gone apoplectic over the Sibelius nomination because of her defense of reproductive rights and ties to Planned Parenthood and to Dr. Tiller. They know each other!  Govenor Sibelius invited Dr. Tiller and his staff to the governor's mansion!  She accepted an award from Planned Parenthood! Oh my!

Rough ride for Prop 8 opponents, but is an even better result possible?

First the caveats: not only is predicting results from watching an oral argument chancy, but I was not able to watch the entire three-hour argument. So perhaps what follows is foolhardy.

But -- from what I did see, I wouldn't bet anything valuable that the California Supreme Court will invalidate Prop 8.

In the arguments in the marriage case last spring, Chief Justice George, who later wrote the opinion, seemed almost to be reading from his draft, with several references to the 1948 decision in which the court struck down the state's anti-miscegenation law.  Yesterday, if he was guided by a draft opinion in most of his questions, the outcome will be that Prop 8 was an amendment, not a revision, of the state constitution, and is therefore valid. Justice Kennard, another member of the majority from last spring, seems likely to join him, and there was no sign that the three justices who formed the minority in the marriage case have any inclination to find fault with Prop 8. So it looks to me like Prop 8 will continue in effect.

As to retroactivity, my hunch has always been that the 18,000 couples who married in California between the date of the last decision and election day will continue to have their marriages recognized as such. And nothing I observed in the oral arguments has changed that view.

So what happens next? If my prediction is correct, the media will play it as the proponents of Prop 8 being allowed to claim the fruits of their labors, and a validation of popular sentiment still set against recognition of same-sex marriage. And that will be true as far as it goes.  But something far more interesting might emerge.

Several of the early questions from the bench seemed to suggest that especially Justices Kennard and George were inclined to focus on the equality in state law benefits that exists between marriage and what California calls domestic partnership (really a misnomer, because it's a full set of benefits like Vermont or NJ civil unions, not like the earlier form of DPs which are much more limited). These questions led to an exchange that appeared to be mutually frustating for the justices and Shannon Minter, in which Shannon kept repeating that one could not delete access to the word "marriage" and still have equal status, and the justices kept repeating, but the rest of our prior decision won't change.

If the court lives up to what it said in the marriage decision, however, the potential is for a better result than winning the challenge to Prop 8.

Although few people seemed to notice it at the time, the marriage decision ruled that what was essential was equality, not marriage. "Our task in this proceeding is not to decide whether we believe as a matter of policy that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership ... but instead only to determine whether the difference in the official names of the relationships violates the California Constitution." The court ruled that the "right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage." 

As we know, the court ruled both that same-sex couples were entitled to that bundle of substantive legal rights and attributes and that the status of domestic partnership was not sufficient despite its material parity with marriage. The court reasoned as follows (the italics are mine):

"Whether or not the name 'marriage,' in the abstract, is considered a core element" of the right to marry, "one of the core elements ... is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature" of the family relationships of heterosexual partners. By reserving the traditional, well-understood term "marriage" only for straight couples, the court said, it violated the equal protection rights of same-sex couples.

Now that California's voters apparently have taken the word "marriage" off the table as an option for both kinds of relationship categories, the court has the opening to do something bolder and certainly more interesting than ruling that same-sex couples must be allowed to marry. The court could rule that California has to come up with some other label and treat both heterosexual and same-sex couples the same.  In other words, the official label for the legal status must be the same for everyone, whatever that label is.

I can imagine decisions upholding Prop 8  reasoned in other ways as well, but I think this outcome is at least a possibility. The main barrier - and what would make it a major gamble - would be how such a new designation would interface with federal law, which currently recognizes "marriage" as the only label that qualifies someone with marital rights and obligations under federal law. How would the court, and then possibly the legislature construct a legal status not called "marriage" that would not jeopardize all California couples - straight and gay - who obtained a legal formalization of the partnership from that point forward? If it led to a sense in Congress that DoMA had to be repealed or revised, that would constitute a giant step forward. What will happen is a question so entirely speculaltive that I'm just not going to go there unless and until it becomes relevant to something real.

The appeal of this outcome is that it would reinforce that the primary principle at stake is not "marriage equality" - it's the principle, with all its shortcomings, of formal equality under law.  The technical legal label for the institution - so long as it is the same for everyone - is irrelevant.

Viewing guide for Prop 8 oral argument

As most readers of this blog probably know, the oral argument in the challenge to Prop 8 will be tomorrow - Thursday, March 5 - from 9 am to noon PST, and will be webcast live. If you, like me, don't have a three-hour chunk of free viewing time, you can watch it later at your leisure.

The arguments should be a fascinating debate about constitutional principles and priorities. However obscured in the peculiarities of California law distinguishing between amendments and revisions to the state constitution, the central issue for the court will be whether a commitment to protect the key liberties of unpopular minorities against majoritarian rule will trump the state's tradition of fostering populist constitutionalism through its easily accessible amendment process. IMHO, these are more difficult and more interesting questions than those raised in the underlying debate about same-sex marriage.

Fascinating substance aside, the outcome will turn on a pretty simple numbers game: which side will get to four in counting the justices it can persuade.  Last year's decision granting marriage equality to gay couples was decided by a 4-3 majority.  It's presumably a safe bet that the three who dissented will vote to uphold Prop 8.  So the current case will be won or lost depending on whether the opponents of Prop 8 can hold all four of the justices they persuaded last year: Chief Justice George and Justices Kennard, Moreno, and Werdegar.

Especially in the spotlight will be Justice Kennard, who voted with the majority last year, but who also voted against hearing the petition of the Prop 8 opponents. No one knows whether the latter vote was motivated by a belief that the adoption of Prop 8 was so clearly valid that there was no point in hearing the case or by a belief that the challenge should have been filed first in the lower courts, rather than originally in the state supreme court.

UPDATE: The San Francisco Chronicle agrees, says to watch George and Kennard.