hunter of justice

NY State employees gain gender identity protection

Governor David Paterson of New York signed Executive Order 33 on Wednesday declaring that state government employees shall not be subjected to discrimination based on gender identity. The state already prohibits sexual orientation discrimination for all employees, public and private. It's an important step; Governor Paterson deserves credit for taking it. 

The problem with executive orders is that they create no remedies for the employee who may nonetheless suffer discrimination. In some states, an employee can file a personnel complaint based on an executive order, but in many states, an executive order is largely an aspirational statement.  A future governor can also rescind an executive order, which has happened quite a few times with protections for sexual orientation. I doubt that any future New York governor will rescind this one, however.

EO 33 ought to help reassure some of the jittery Dems in Congress, especially those from New York and neighbor states, who are worrying about voting for a trans-inclusive ENDA.

Text of the operative portions (minus the "whereas" clauses) of the executive order after the jump -->

MSU Law professors propose "e/marriage"

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

The article abstract summarizes the proposal:

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

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

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

State lgbt equality laws lag behind popular opinion

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

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

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

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

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

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

Maine in home stretch with polls showing tie; Bonauto-Mutty debates begin

Polls show the Maine referendum on marriage equality as a cliffhanger: the most recent (and according to Nate Silver, probably the best) poll shows a dead heat: 48 to 48, although earlier polls have shown the pro-equality (No on 1) side winning by 5 to 9 points. Silver argues that the fundamentals look good for No on 1 to win for two primary reasons:

(1) Maine is one of the least religious states in the nation (see map below); and
(2) Pro-gay marriage groups have outstripped their opponents in the fundraising contest by almost two to one.

Polls also show that virtually no one is undecided; Silver predicts that the outcome will turn on the GOTV, election day ground game. For more details, see Lisa Keen's latest article.

Non-Mainers who want a flavor of how the arguments are being framed can listen to a series of TV and radio debates between GLAD's Mary Bonauto and Yes on 1 leader Marc Mutty.  The first is tomorrow at 1 pm east coast time -

Thursday, October 22nd, 1  to 2 p.m.
Listen at http://www.mpbn.org/

Remainder of schedule after the jump -->

Out in Carolina politics: an interview with NC State Senator Julia Boseman

Julia Boseman, North Carolina's only out state senator, was the solitary holdout who voted no on the resolution honoring Sen. Jesse Helms after he died last year. She is also the successful plaintiff in a custody case, in which the North Carolina Court of Appeals accepted the validity of a second-parent adoption. What absolutely boggles my mind is that if I still lived in the very conservative town where I grew up, she would be my state senator.

Durham Indy interview conducted by Steven Petrow:     

In sitting down with the Indy recently at her Wilmington home, Boseman, a 43-year-old Democrat from New Hanover County, spoke frankly and movingly about [a number of issues].

For Boseman (and North Carolina's LGBT community), it's been, as she says, a "really good year," one where she successfully led the fight as primary sponsor of the School Violence Prevention Act (known informally as the anti-bullying bill), which specifically protects LGBT kids and marks the first time that sexual orientation and gender identity are included in North Carolina law. The year also marked the passage of the Healthy Youth Act, which provides young people with life-saving information about STDs as part of a comprehensive sex education program that teaches more than just abstinence....

Indy: When you first ran for office, were you out as a lesbian?

Sen. Boseman: Yes!

How much do you think your sexual identity has been a driver in your political life?

I have to say it's much easier with the whole world knowing that you're gay. I can remember when I ran in 2000 for county commissioner, I had a choice: I can either be closeted or I can run as an openly gay candidate. If I run as an out gay person, I take away the biggest bombshell that they can use against me. There was a lot of interest in my race at that time—especially my first Senate race [in 2004]—because there have only been a handful of openly gay elected officials in North Carolina. So people from around the country had concerns.

[In the end], I made a conscious decision to run as an out lesbian. I have to say it was a little unnerving when the media went through my campaign reports and they found out I got support from the Gay and Lesbian Victory Fund. They came into my office with the cameras running, saying, "You're a lesbian. You're openly gay."

"Yes, I am. I am going to be honest with the people about who I am, just as I will be about honest with them about the issues that affect them."

So what's it like to be the lesbian, the only out state senator, the poster child for being an elected dyke here in North Carolina?

I never really think of it like that. People automatically assume things about you because you're gay—like you're going to raise taxes through the roof because you're liberal. You want everything that's considered liberal. Actually, we care about all the same things as other people—getting a good education, roads, where's the guy who's picking up my trash.

What advice do you have for other LGBT folks who are thinking about politics and public service?

You better have a really thick skin. You better want it real bad. You need to work hard. Don't get distracted from the light at the end of the tunnel.

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

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

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

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

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

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

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

Election Day 2009 preview: Maine and Washington

An analysis by Lisa Keen, from Bay Windows:

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

Washington: Referendum 71

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

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

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

And then there’s Maine

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

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

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

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

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

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

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

Smelt litigation strategy: New California, the 51st state

UPDATE: This case has been dismissed without prejudice on a procedural technicality, and it will probably be refiled in federal court.

From Gay City News, straight into the you-can't-make-this-up folder:

The attorney representing two gay men who sued in state court and now in federal court in southern California to win the right to marry hopes the case will spawn a political movement that will result in residents there voting by ballot initiative to divide the state in two.

“We’re hoping to use the case in court as a springboard to get a proposition on the ballot that will break up California into two states,” said Richard C. Gilbert, a partner at Gilbert & Marlowe, a law firm with two offices in California. “We think if we can get this proposition on the ballot, we think we’ll win.”

Gilbert said the ideal result would be that all the counties north of Los Angeles would become New California while the southern counties would remain California.

Gilbert likened the circumstances of his clients — Arthur Smelt and Christopher Hammer — to Dredd Scott, who sued for his freedom in the 19th century only to have the US Supreme Court rule in 1857 that no African-American, free or enslaved, could be a US citizen. That decision contributed to the Civil War and Scott was eventually freed.

“We don’t want a civil war,” Gilbert said. “We just want to have civil division in our state between people who are willing to respect the rights of all people and those who are not.” Residents of New California, in his view, would be far more amenable to arguments in favor of marriage equality than those in the southern part of the state.

The couple originally sued in 2004 in state court, where the case was dismissed, but they have continued fighting on procedural grounds into federal court. They are battling to keep the case alive in federal court where, Gilbert said, their chances of prevailing are poor.

“I would expect that we would not succeed in the courtroom, but that we have a much greater chance of success in creating a New California, two separate states, if we can spread the word,” he said. ...

Mapping the sliding scale of same-sex relationship rights

Joanne Grossman (Hofstra Law) and Ed Stein (Cardozo Law) have posted a very useful new column at Writ in which they analyze current same-sex relationship rights as a sliding scale. The column provides a succinct summary of where each state stands as to recognition of couple rights for same-sex partners, ranging from marriage equality to non-recogntion to state constitutional amendments prohibiting recogntion. Grossman and Stein see the same lavender ceiling coming that I do: "In sum, although the developments in the same-sex marriage have been fast and furious at times, we are likely to see a slower pace in the coming years." More movement to marriage recogntion will come in the next few years, but it's going to be slow going after that, at least until ongoing demographic change gels into legislative action.

Queering Utah

Smart analysis, as usual, by Lisa Duggan, in The Nation:

Forget everything you think you know about Utah. Yes, it's the reddest state in the union and the headquarters of The Church of Jesus Christ of Latter-day Saints (LDS). For the past twenty-five years, Republicans have had a virtual lock on statewide offices. Utah hasn't voted for a Democrat for president since 1964, and last year the state chose John McCain over Barack Obama by almost a 2-to-1 margin.

But here in Salt Lake City, it's a different story. The city and surrounding counties are a lovely blue. The current and previous mayors--Ralph Becker and Rocky Anderson--are well-known progressive Democrats with excellent records on the environment, gay and civil rights, disability access and other municipal issues, and Salt Lake County, home to four of the five most populous cities in the state, went for Obama in 2008.

Then there's Salt Lake City's queer community, whose smart, creative and coalition-building strategies could provide a model for gay activists across the country.

That last claim requires a bit of explanation. Last fall I lived in Salt Lake City. As a leftist and New York City dyke, I had expected to find a conservative city and a quietly assimilationist gay community. Instead, I was repeatedly blown away by the progressive politics and outright queerness of the capital city, which is about 40 percent Mormon.

I was in Salt Lake City in November when the passage of California's Proposition 8 generated national outrage against the Mormon Church for its role in sending money and volunteers to help antigay forces take away the right of California's same-sex couples to marry. A few national LGBT figures, most notably gay pundit Dan Savage, called for a boycott of Utah to punish its majority Mormon population. In Salt Lake City, I joined a furious crowd, including many gay Mormons and ex-Mormons, at a November 7 protest at the LDS Temple. The scene was a jumble of mixed messages, with signs ranging from Love Makes a Family, to Separate Church and State, to Brigham Young Had 55 Wives, I Want 1! But no one I saw advocated a boycott. Most seemed to agree with KRCL-FM public radio station personality Troy Williams, referred to by some Utahns as their homegrown Harvey Milk, who challenged Savage on his hourlong program, calling for an influx of queer migrants to the state rather than a boycott. Perhaps a New Queer Pioneer movement, modeled on the sanctified Mormon pioneers of the nineteenth century, would do more to shrink the impact of LDS antigay bigotry than any boycott ever could.

Not that Utah needs new queer residents to spark political, social or cultural creativity. The city is home to a floridly queer and unusually politically unified LGBT community. Salt Lake City hosts numerous gay bars and businesses, a busy assortment of queer artists and intellectuals, a thriving drag culture and an "extreme" BD/SM school. At this year's pride rally, after the annual dyke march on June 6, the city's residents flocked to the downtown Federal Building to hear local drag celebrity Sister Dottie S. Dixon (Mormon mother of a gay son, as embodied by actor Charles Frost) beseech "the almightly diva S&M Goddess of her Most High," among other deities, to "help our surgeons ta discover how to perfarm a complete brain transplant, so that Mitt Romney can live with hope fer a better future." And "while yer at it," Sister Dixon implored, "if you've got any more of them plagues of locus--please send them ta every household that voted fer Preperation 8!"

The rally was sponsored by the rapidly expanding Utah Pride Center, which under executive director Valerie Larabee has more than doubled its budget in the past five years. At the Pride Center, a broad range of local activist groups and LGBT individuals actually talk to each other--in stark contrast to the balkanized landscape of national LGBT organizations. Indeed, perhaps more than in any other city, Salt Lake City's queer scene resembles the storied days of ACT UP, when mainstream assimilationists collaborated with radical activists to develop talking points, coordinate strategy and change homophobic policy.

This conversation across boundaries is a product of savvy activists and, paradoxically, of the formidable political and cultural barriers created by the Mormon Church and the statewide strength of the Republican machine. In such a political arena, queer flamboyance and tough-minded seriousness have to coexist in order to get anything done. In that sense, as gay activists nationwide take stock of where the gay rights movement has come in the forty years since the Stonewall riots and plot a political future, they should look to Salt Lake City for pointers instead of Boston or New York.

Why the new Nevada DP/civil union law is unique

At Balkinization, family law scholar Linda McClain (BU Law) has posted this analysis of several important features of the new Nevada domestic partnership law that are easy to overlook in the marriage media flood. First, although called a DP law, it really creates the kind of marriage equivalent usually called a civil union, which is pretty remarkable given the Nevada state constitutional amendment banning gay marriage. Additionally, it's open to both straight and gay couples - a first for a statewide registration system for a true marriage equivalent status. 

Here are Linda's thoughts, with minor excerpting:

With comparatively little notice, on May 30 and 31, Nevada’s legislature overrode Governor Jim Gibbons’s veto of a new Domestic Partnership Act (Senate Bill 283). Several features of this Act warrant comment. First, the legislature passed it mindful of Nevada’s constitutional amendment (approved by voters in 2002) providing: “Only a marriage between a male and a female person shall be recognized and given effect in this state.” Thus, the Act states: “A domestic partnership is not a marriage for the purposes of . . . the Nevada Constitution.” But marriage is the clear reference point for the “social contract” between domestic partners. The Act provides them “the same rights, protections and benefits” and subjects them to “the same responsibilities, obligations and duties” under law as spouses, former spouses, and surviving spouses, with some exceptions (such as employers providing health care to partners). The law of marriage supplies the substance of this new status. ...

Second, Nevada’s new law is available both to same-sex and opposite-sex couples. By contrast, California’s domestic partnerships law is open only to older opposite sex couples (at risk of losing important retirement or medical benefits if they marry). In this respect, Nevada is like several European countries where registered partnerships are available to opposite sex and same-sex couples. The Act does not include findings about why Nevada made this striking choice. Like others, I have argued that creating a new civil status alternative to civil marriage might provide a good option for heterosexual couples who resist marriage either because of its historical association with sex inequality or its religious connotations. Will any opposite-sex couples in Nevada choose this new status? Will critics charge that the Act weakens marriage precisely because it provides this alternative?

Third, Governor Gibbons’s veto of the Act highlights the recurring question of the interplay of legislative and constitutional change. He asserted that the Act contradicts the will of the people, as expressed in the 2002 constitutional amendment and that “only the voters” should determine whether the rights of marriage “should equally apply to domestic partners.” However, that amendment does not expressly bar civil unions or domestic partnerships. Indeed, when it was on the ballot, some supporters stressed this fact.. The governor also claimed that many of the rights granted in the Act are already available by way of private contracts. But private contract cannot secure all the significant rights and responsibilities linked to marriage; at best, it provides what I have elsewhere called “partial equality.”

In sum, the Nevada Domestic Partnership Act illustrates how a state legislature constrained by such a constitutional amendment may find a way to maneuver to create a new legal status to support and recognize intimate relationships other than civil marriage. It changes yet again the landscape in the United States with respect to the recognition and support of intimate relationships.

The Prop 8 challenge decision: less than meets the eye, but promising more to come

Despite all the heartburn it has engendered, my bet is that Strauss v. Horton (2009 WL 14444594), the decision upholding Prop 8, will not have much lasting effect, at least directly, on lgbt rights law.

Fundamentally, the case was about the criteria necessary before a change to the California constitution could be considered a revision rather than an amendment. The most important issue it raised was how to classify an amendment depriving a minority of a deeply important symbolic, although only symbolic, badge of inferiority. The California Supreme Court was not the first to find that a marriage inequality amendment should be considered an amendment rather than a revision: as the opinion noted, appeals courts in Oregon and Alaska reached exactly the same result upholding exactly the same distinction in those state constitutions.  But the California court was not bound by the other rulings. It could have engaged the much more difficult - and interesting - question of what equality means when a separate status is materially equal, but nonetheless functions as inescapable social stigmata. Denying the "m" word may seem trivial, but its effects can metastasize throughout the daily lives of gay Californians who would choose to marry, eating away at their human dignity.

The court could have gone there, but it didn't, and instead provided a mechanical, low-key rationale for why this one change didn't fundamentally alter the constitutional structure of state government. The continuing recognition of sexual orientation as a suspect classification for state law purposes merely illustrates that marriage is the only zone of de jure distinctions in state law that anyone bothers to fight about much any more, at least in progressive states like California.

The decision does leave Connecticut as the only state where the highest court has ruled that an already existing civil union system is not constitutionally sufficient, and that the term "marriage" must be open to same-sex couples in order for equality to be achieved. However, legislatures in the Northeast are moving on their own. Vermont essentially came to the same conclusion legislatively, and New Jersey seems poised to follow the Vermont sequence (lose marriage case in court --> adopt civil unions --> win marriage in legislature) later this year. New Hampshire, perhaps joined by New York, may adopt the Massachusetts/Iowa/Maine model of skipping civil unions entirely and going directly from no state recognition of same-sex couples to marriage.

I suppose that one silver lining of the Prop 8/Strauss outcome is that it should silence those who argue that the lgbt community has achieved so much political power that it no longer needs heightened constitutional protection. California has become the 30th state in which the constitution explicitly singles out gay people for exclusion from a fundamental right. That's stunning and certainly unique. It's both a political mountain that will have to be climbed and evidence of a degree of opprobrium and assumption of moral superiority that's pretty breathtaking.

Indeed, framed that way, the success of the anti-gay state constitutional amendment strategy creates a pretty damn good argument for federal constitutional recognition of sexual orientation as a suspect class. Which brings up the last indirect and ironic byproduct of the Prop 8 decision - the wacky world of David Boies' and Ted Olson's arrogant new adventure in litigation.  More on that in a later post.

Pathbreaking Colorado law allows meaningful choices for designating beneficiaries

A huge HT to Nancy Polikoff, who has blogged (twice) about a remarkable new Colorado Designated Beneficiaries law that allows any two persons (not just couples) to file a list of preferences covering 15 separate benefits and protections that could arise around illness and death. Each individual simply checks off which benefits she wishes for the other person to receive. The form is then filed with the county clerk. It remains in effect until revoked or superseded. This process obviates the need for a will or power of attorney (at least within the state), and maximizes individual choice.

Here is how the form, which you can find at pp 9-11 of the law, begins:

WE, ____________________(name and address) REFERRED TO AS PARTY A, AND _________________ (name and address) REFERRED TO AS PARTY B, HEREBY DESIGNATE EACH OTHER AS THE OTHER'S DESIGNATED BENEFICIARY WITH THE FOLLOWING RIGHTS AND PROTECTIONS GRANTED OR WITHHELD AS INDICATED BY OUR INITIALS:

Each party then initials in columns for Party A or Party B whether to grant or withhold a series of rights, including the following:

• The right to be designated as beneficiary or dependent for health and life insurance;
• The right to be designated as beneficiary or dependent in a retirement or pension plan;
• The right to petition for and have priority for appointment as a conservator or guardian;
• The right to visit in a hospital or other health care facility;
• The right to make medical decisions for the other party, to be notified of withdrawal of life-sustaining procedures, and to direct the disposition of last remains;
• The right to inherit real or personal property through intestate succession; and
• The right to have standing to sue for wrongful death or to receive workers comp benefits.

Where these provisions conflict with a federal law (like DoMA or ERISA), they will probably not be honored. Some particulars could get complicated.  But in most situations, the designations should hold. Colorado has taken a giant step forward in reforming the interaction between a state and its citizens on issues of relationship recognition.

Subtract one executive order from the anti-discrimination list

Gov. Bobby Jindal (R-LA), a rumored short-lister as Sen. McCain's running mate, has let an executive order prohibiting discrimination by state agencies and contractors lapse.  The order, signed by former Gov. Kathleen Blanco, included sexual orientation along with other protected characteristics.  Jindal stated that he believed that federal anti-discrimination law, which does not include sex/o protection, was adequate. He also said that dropping the executive order eliminated a potential barrier for the state to contract with religious organizations.