hunter of justice

Change is coming to hoj

Yes, on Monday June 4, hunter of justice
will be born again. Thanks to fabulous web designer Barbara Kerr, the old blog is getting a new look. If the migration goes as well as it is supposed to, all of the rss feeds and email subscriptions will also migrate seamlessly. If you experience any problems, please use the Comments function to let us know.

DoMA heads to Supreme Court...minus Kagan

The unanimity of the First Circuit's ruling that DoMA is unconstitutional virtually insures that a cert petition to the Supreme Court will be filed in the next 90 days, followed by an order granting certiorari in early October, followed by oral argument next winter, followed by a decision by June 2013. There's just one big problem looming for lgbt rights advocates: Justice Kagan will almost certainly recuse herself.

The Court of Appeals decision in Commonwealth of Mass. v U.S. Dep't of Health and Human Services [2012 WL 1948017] broke no new ground in its Equal Protection analysis. Indeed, it arguably ceded ground by specifically holding that DoMA would be valid under a traditional rational basis test. The court found it unconstitutional because "closer than usual scrutiny" was required, which in turn was triggered because the penalized group was  "historically disadanvated or unpopular and the statutory justification seemed thin, unsupported or impermissible." (More detailed analysis of the opinion itself coming in a later post.)

Whatever the First Circuit's reasoning - and you can be sure the Supreme Court will feel no need to conform its analysis to the approach of any lower court - the most important aspect of this decision is that it sets up Supreme Court review without further delay. There are only six judges on the First Circuit; a unanimous decision by three of them means that there is no chance that a majority would vote to accept a petition for rehearing en banc. 

So it's on to the Supremes. And I am quite happy that this case (originally called "Gill", but now consolidated with the state's challenge to DoMA, so Massachusetts has become the lead plaintiff) will get there before Perry v. Brown, which might lead to a ruling on the constitutionality of all state laws banning same-sex marriage. I do not see this Court, with these nine Justices, issuing such a decision.

This particular lawsuit challenging DoMA does have one major drawback as a Supreme Court vehicle, though. When Justice Kagan was Solicitor General, she was almost certainly involved in Justice Department decision-making about whether and how it should defend DoMA, a federal law. Assuming that she was, she will have to recuse herself from any participation in Massachusetts v. HHS when it reaches the Supreme Court (as I noted almost two years ago and as she did in a DADT case).

Her recusal will mean that the best case scenario is probably a 4-4 tie in the Supreme Court, which would leave the First Circuit decision in place. For that tie to happen, though, Justice Kennedy has to join the three progressives on the Court (Ginsburg, Breyer, Sotomayer) in finding DoMA unconstitutional. If he does, DoMA's fate is sealed, since I would be willing to bet something precious that Justice Kagan will vote to strike down DoMA in a subsequent case from which she is not recused. If on the other hand Justice Kennedy votes to uphold DoMA, the game is over.

Marriage, animus and the Supreme Court

Today's New York Times carries an op-ed by Bill Keller titled "A Brief for Justice Kennedy" in which he makes a sweet, but pretty much legally beside the point, argument that the Supreme Court should strike down exclusionary marriage laws because they harm gay couples. With all due regard to Keller for endorsing this argument, and realizing that he is writing for a non-legal audience, I think it nonetheless makes sense to remind people that the real briefs that will need to be filed with that or other courts have to come up with more than that.  Lawyers have to persuade a court that democratically-adopted laws not only cause harm, but are so invidious and so lacking in any legitimate purpose that they must be struck down.

Without belaboring legal technicalities, the key to achieving that goal will be to persuade judges that such a law is a product and instrument of unjustified bias, or, to use the term that has evolved in case law, of animus. And the elaboration of a more sophisticated theory of animus is one of major contributions of the Ninth Circuit's February opinion in the Prop 8 case.

Here's part of what I had to say about that in an essay titled "Animus Thick and Thin" published in Stanford Law Review online:

One fundamental point of the Perry decision is that singling out a socially disfavored group for the withdrawal of an important right reeks of animus. This should not be a controversial claim. Considered together with the denigration of gay people that saturated the pro-Proposition 8 campaign, the consequence of the “taking away” sequence of events in California [the state supreme court ruled that same-sex couples have a fundamental right to marry, then voters enacted Prop 8] is to trigger heightened rational basis, the standard of review used by the Supreme Court in Romer v. Evans. In my view, sexual orientation ought to be considered fully suspect when it is used as a basis for differential treatment under law, but neither the Supreme Court nor any U.S. court of appeals has so held.

By contrast, taking a closer look at laws infused with animus is something that the Supreme Court has done since 1973, when it struck down a law enacted to disqualify otherwise eligible “hippies” from obtaining food stamps. However, the Supreme Court has done so rarely and, more importantly, has never said that it was using this device. Indeed, how to categorize and assess animus has become a recurring and unresolved question in equal protection law.

Justice Scalia raised the stakes on animus in his dissent in Romer, in which he attacked the majority opinion for adopting “the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.” Scalia derided the Court’s suggestion that voters had “been guilty of ‘animus’ or ‘animosity’ toward homosexuality,” and characterized its “stern disapproval of ‘animosity’ toward homosexuality” as a misreading of a “reasonable effort to preserve traditional American moral values.”

In Board of Trustees v. Garrett, a case that divided the Court five to four, the dissenting opinion argued that adverse treatment resting upon “negative attitudes, fear, or irrational prejudice” necessarily violated the Equal Protection Clause. Chief Justice Rehnquist, writing for the majority, replied that “[a]lthough such biases may often accompany irrational . . . discrimination, their presence alone does not a constitutional violation make.” Justices Kennedy and O’Connor both joined the Rehnquist opinion, but also wrote separately to say that “[p]rejudice . . . rises not from malice or hostile animus alone,” but also from thoughtlessness. Clearly the concept of animus marked highly contested ground.

Justice O’Connor responded in her concurring opinion in Lawrence v. Texas, where she spelled out the analysis for why evidence of animus (presumably when not merely “prejudice”) should trigger tougher review under the Equal Protection Clause, even for nonsuspect classifications. Perry v. Brown, however, is the first opinion with precedential weight to adopt Justice O’Connor's approach.

The Ninth Circuit accepted the proposition that there might be a rational reason—i.e., apart from animus—for a state to limit the benefits linked to marriage to only those couples who might “procreate accidentally.” Since same-sex couples don’t have those kinds of accidents, including them in the group eligible to marry would not be necessary to advance that interest. Thus, the court reasoned, a state could rationally choose to exclude gay couples from marriage.

The court found, however, the proponents of Proposition 8 advanced no legitimate reason for taking away the right to marry and its presumed protective benefits for children from the broader group covered under a regime of marriage equality. 

The difficulty with this part of the court’s reasoning is that the accidental procreation argument itself is so strained. Using marriage as a state-sanctioned mechanism for enhancing the likelihood that adults who have children will legally bind themselves to each other and thereby—so the theory goes—provide a stable family dynamic for raising children is advanced as much by allowing gay couples to marry as allowing straight couples to marry.  So for the court to accept that accidental procreation is a plausible state interest, it has to accept that the state could have a legitimate interest in protecting only the children of unplanned and unwanted pregnancies. 

The Perry court did not have to reach the question of whether the accidental procreation rationale could ever make sense, so it didn’t. Beneath this hesitancy surely lay an understanding that profound shifts in social meaning occur in slow motion; that very factor justifies minimalist adjudication.

EEOC rules that Title VII covers gender identity discrimination

The EEOC has issued a decision holding that it will consider gender identity discrimination to be a form of sex discrimination prohibited by Title VII. The ruling comes in Macy v. Holder, a case brought by a transwoman against an agency within the Department of Justice. The EEOC decision cites precedent established in a series of federal court decisions that have come to the same conclusion.

The decision in the Macy case covers only gender identity discrimination and does not include any discussion of whether sexual orientation discrimination is also covered under Title VII.

The ruling clarifies that EEOC offices around the country will accept and process claims of gender identity discrimination, a practice that has been spotty in the past.

From MetroWeekly:

An employer who discriminates against an employee or applicant on the basis of the person's gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964, according to an opinion issued on April 20 by the Equal Employment Opportunity Commission (EEOC). The opinion, experts say, could dramatically alter the legal landscape for transgender workers across the nation.

The opinion came in a decision delivered on Monday, April 23, to lawyers for Mia Macy, a transgender woman who claims she was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after the agency learned of her transition. It also comes on the heels of a growing number of federal appellate and trial courts deciding that gender-identity discrimination constitutes sex discrimination, whether based on Title VII or the constitutional guarantee of equal protection of the laws.

The EEOC decision, issued without objection by the five-member, bipartisan commission, will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country. It also will be binding on all federal agencies and departments.

In the decision, the EEOC states, ''[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition ....''

Lambda files federal constitutional challenge to Nevada marriage law

In the wake of the Ninth Circuit's opinion in Perry v. Brown, Lambda Legal is filing a lawsuit today in U.S. District Court in Nevada alleging that the state marriage law violates the U.S. Constitution because it excludes same-sex couples. The suit, Sevcik v. Sandoval, is being litigated solely under the Equal Protection Clause. Nevada is one of the states in the Ninth Circuit and, like California, it has an official partnership status that grants essentially all aspects of marriage except the name.

According to the report by Chris Geidner in MetroWeekly, who broke the story:

The lawsuit... marks the first time that Lambda Legal has sought equal marriage rights for gay and lesbian couples in federal court, although a staff attorney with the group, Tara Borelli, notes that another case filed by Lambda Legal in state court in New Jersey includes federal claims as well.

According to the complaint filed in U.S. District Court for the District of Nevada, the lead plaintiffs in the new lawsuit -- Beverly Sevcik, 73, and Mary Baranovich, 76, of Carson City, Nevada -- have been together for more than 40 years... Same-sex couples have been able to receive many of the same benefits and privileges of marriage but not the status itself, however, since the legislature passed comprehensive domestic partnership benefits over the veto of then-Gov. Jim Gibbons (R) in 2009.

Lambda Legal's federal lawsuit against Gov. Brian Sandoval (R) was filed electronically in Nevada overnight today, and it stands as a sign of the significant ground movement on marriage equality in the country in recent years. 

Less than three years ago, when word came on May 27, 2009, that a brand new organization -- the American Foundation for Equal Rights (AFER) -- had filed a federal lawsuit seeking to overturn California's Proposition 8, the response from the legal groups was not at all positive. The day the AFER lawsuit -- then Perry v. Schwarzenegger and now Perry v. Brown -- was announced, Lambda Legal and several other legal, political and educational LGBT organizations released a statement warning that "that ill-timed lawsuits could set the fight for marriage back." Specifically questioning lawsuits "based on the federal Constitution," the groups were concerned that "without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."

With today's filing, Lambda appears to have acknowledged that Perry has helped lay that groundwork. By filing the case in Nevada, any appeal of a trial-court decision would go to the U.S. Court of Appeals for the Ninth Circuit -- which agreed in February with the trial-court judge in Perry that Proposition 8 is unconstitutional.

At the same time, Borelli makes clear that Lambda sees this as another -- and not the final -- step in seeking marriage equality through the courts.

"This lawsuit seeks the freedom to marry for same-sex couples in the state of Nevada and is tailored to be a responsible building block for future marriage equality work," she tells Metro Weekly from Las Vegas on the eve of the filing. "We've always believed that it's important to take strategic steps that build on each other, and that's exactly what this case is designed to do."...

Explaining the claim, Borelli says, "One of the reasons that we're suing in the state of Nevada is that this is a particular equal protection problem that this case examines. It's the kind of problem created where a state excludes same-sex couples from marriage deems them fit for all of the rights and responsibilities of marriage through a lesser, second-class status -- in this case, domestic partnership. That shows just how irrational that state's decision is to shut same-sex couples out of marriage."

In fact, Lambda Legal -- with assistance from pro bono co-counsel from O'Melveny & Myers LLP and Snell & Wilmer LLP -- has decided only to pursue an equal protection claim relating to the different treatment same-sex couples receive in Nevada and not a due process claim relating to the "fundamental right" to marriage. Both claims were raised in the Perry lawsuit.

"We certainly believe that the fundamental right to marry includes same-sex couples, but this court doesn't need to answer that question to rule for the plaintiffs here," Borelli says. "And we're convinced that our equal protection claim is so clearly correct that we want to keep the focus on that claim."...

Happy Easter and Passover - and remember...

DoMA ruling now up to the court

The first DoMA challenge to go before a Court of Appeals was argued this morning, and, if I were plaintiffs' counsel, I would be pretty optimistic. Two judges on the panel - Chief Judge Lynch and Judge Boudin - look like probable votes to declare the law unconstitutional. For details, see Prop8TrialTracker's blogging of the arguments, or listen yourself to an audiotape of the argument (although the first 18 minutes are missing). 

The most significant aspect of the argument (see Chris Geidner's report below) appears to have been that the Justice Department stated to the court that it would not defend the constitutionality of DoMA even under a rational basis test. The attorney representing DoJ at the argument said that the United States would take no position as its validity if evaluated under that standard. Attorney General Holder's letter on DoMA had indicated that DoJ considered DoMA to be unconstitutional only if heightened scrutiny were applied.

There is no deadline for when the Court of Appeals must issue its opinion, although I would be surprised if it isn't announced by the end of 2012.

From MetroWeekly:

At points in today's appellate arguments over the constitutionality of the federal definition of marriage contained in the Defense of Marriage Act, the four lawyers arguing the two cases to three judges appeared to be operating from different worlds. One of the only points of complete agreement was that DOMA was an unprecedented attempt by Congress to define marriage across all federal laws.

Whether arguing over the rationales advanced for DOMA's passage, the level of scrutiny from which courts should review laws that classify people based on sexual orientation, or the impact of Section 3 of DOMA on married gay and lesbian couples, the gulf between the lawyers at times prevented the sort of fireworks one might expect at a debate over a hot-button issue like "gay marriage," as it was called when DOMA was passed in 1996.

In a somewhat surprising move, the Department of Justice went a step further than it has in the past when Acting Assistant Attorney General Stuart Delery told the U.S. Court of Appeals for the First Circuit today that DOJ would not be defending the constitutionality of the 1996 law regardless of the level of scrutiny the court found appropriate for reviewing a law like DOMA that classifies people based on sexual orientation.

Delery, representing the federal defendants in the two cases, Gill v. Office of Personnel Management and Massachusetts v. United States, was in the unusual position of agreeing with the plaintiffs on most points because of President Obama's February 2011 decision that Section 3 of DOMA is unconstitutional because such laws should be subjected to heightened scrutiny and that, accordingly, DOJ would stop defending DOMA in court.

The head of Department of Justice's Civil Division, Delery told Chief Judge Sandra Lynch and Judges Juan Torruella and Michael Boudin today that Congress's intent to single out gay and lesbian couples for discrimination was clear from the name of the bill itself: "It's a defense against something, and that defense was [against] same-sex couples." 

As to the DOJ's prior position that DOMA should be found constitutional if subjected to the lowest level of scrutiny -- known as rational basis -- Delery noted that DOJ's prior briefs defending the law were superseded by its more recent filings and, hence, no longer the government's position. Specifically asked by Judge Boudin whether the law should be upheld under rational basis review, Delery said, "I'm not here to defend it on any basis."

When Paul Clement, representing the House Republican leadership-controlled Bipartisan Legal Advisory Group, made his case defending DOMA, he pointed to the "uniqueness of the dynamic that Congress was facing in 1996" -- when Hawaii courts were considering whether same-sex couples were required to be allowed to marry under Hawaii law. Clement argued that Congress had a rational basis to act to "preserve its prior legislative judgments" by, in anticipation of a change in Hawaii law, preventing any federal recognition of same-sex marriage.

Clement also argued that, in accepting states' marriages for federal purposes prior to DOMA, there was both "uniformity" in the provision of federal benefits and "deference" to states' decisions about marriage -- but that the pending Hawaii decision at the time justified the congressional action in deciding to choose uniformity over deference.

Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto, representing the plaintiffs who brought the Gill lawsuit arguing that DOMA Section 3's federal definition of marriage violates constitutional equal protection guarantees, disagreed, telling the court, "The one constant of marriage law has been change."

Noting that even as states across the country disagreed in the past on whether interracial marriages should be recognized, "the federal government never weighed in for or against."

Bonauto went on to discuss how Clement's argument about uniformity didn't make sense to GLAD, stating, "Of course there's uniformity, but what is the reason for singling out one group? That's the question BLAG does not answer."

In his rebuttal argument, Clement did not directly respond to that, instead focusing on making the more general case that DOMA isn't an anti-gay law. Although DOJ, the Commonwealth of Massachusetts and GLAD argues that DOMA was motivated by anti-gay sentiment -- "animus," in court lingo -- Clement argued that the impact of DOMA was not all bad. "In some cases," he said, "it's a net financial benefit to the same-sex couple; in some, it's not."

Maura Healey, the head of the Massachusetts Attorney General's Office's Civil Rights Division, had made the opposite case in her time before the judges, arguing that, for Massachusetts residents, DOMA mandates the creation of "two different, unequal" types of marriage -- one for opposite-sex couples and another lacking in all federal recognition for same-sex couples.

Chief Judge Lynch, however, noted that Clement had earlier said that Section 2 of DOMA -- not at issue in today's case -- allows Massachusetts to do what it wants with regards to same-sex marriage and that, in Massachusetts's challenge to DOMA, Clement would say the Commonwealth is trying to make Massachusetts law drive federal policy.

Healey responded, "What that view requires is ignoring our nation's history," which always included that deference; "our jurisprudence history," which she said recognized the role of states in formulating marriage law; and "our congressional history," which she said shows Congress's awareness prior to 1996 of that state role. 

In arguing that DOMA is unconstitutional under the Spending Clause, which is partially related to the Gill equal protection claim, and the Tenth Amendment, which protects state sovereignty, Healey faced opposition from Clement for BLAG on both points and Delery for DOJ on the Tenth Amendment claim. 

In fact, one of the only points of agreement among the counsel appearing today was that DOMA represents an unprecedented attempt by the federal government to create a broad definition of marriage that applies across all federal law.

When Judge Torruella asked Clement if it was relevant that DOMA was, as Clement had put it, the "first comprehensive attempt" at such a definition, Clement said no -- pointing to the fact that, in his view, DOMA was "not in any way an effort to override states." He even acknowledged at one point, "The federal government isn't in the business of having its own marriage certificates."

Although the debate over the level of scrutiny to be applied to sexual orientation classifications was front and center today, Clement also made an argument that a prior case heard by the First Circuit regarding the constitutionality of "Don't Ask, Don't Tell" -- Cook v. Gates -- foreclosed the question by concluding that rational basis should apply.

Delery, referencing earlier DOJ filings in today's cases, stated that DOJ's preference is that the full court reconsider that decision from the Cook opinion by considering these cases en banc or that the three-judge panel take action, if possible, that would "allow the panel to accomplish that through other means."

Regardless of that decision -- and especially in light of DOJ's statement today that it will not defend DOMA even if considered under rational basis review -- GLAD's lawyers and Massachusetts's lawyers have made arguments to the court that DOMA should be struck down as unconstitutional under rational basis. 

Although the judges didn't tip their hand today as to the outcome of the case, Clement's goal today was to convince the judges otherwise. And, if he failed to do that, Clement ended his argument by noting the great strides that have been made by gay and lesbian people in the political process and suggesting that there was "another path than constitutionalization" of the issue -- deferring to the political branches.

For his part, Delery made the strongest suggestion of the anticipated road ahead for these cases, regardless of the decision from today's argument.

In closing, Delery quoted at length from Supreme Court Justice Anthony Kennedy's opinion in Lawrence v. Texas, in which a split court held almost a decade ago that sodomy laws are unconstitutional. Referencing Clement's arguments about Congress's reasons for passing DOMA, Delery told the judges today that Kennedy held then that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

Telling the court that gay and lesbian people, living "open and honest lives," have invoked those principles in this case, Delery said that the president and attorney general have done the same and urged the court to do so as well.

Background on DoMA challenge being heard in First Circuit

A three-judge panel of the First Circuit Court of Appeals is hearing arguments this morning on the constitutionality of DoMA.  Kudos to Chris Geidner of MetroWeekly, who wrote this excellent background summary of the case:

The questions posed by the challenges to Section 3 of the Defense of Marriage Act are, on a surface level, quite simple: Does DOMA unconstitutionally discriminate against same-sex couples? Does DOMA unconstitutionally infringe on states' rights?

HOW DID THE CASES GET HERE?

The path that the cases have taken to get to this point, however, is very unusual. Gay & Lesbian Advocates & Defenders, in early 2009, filed the lawsuit challenging DOMA. Later, Massachusetts Attorney General Martha Coakley (D) filed a similar challenge. When the cases -- Gill v. Office of Personnel Management and Massachusetts v. United States -- were considered before U.S. District Court Judge Joseph Tauro, the federal government -- as the defendant in the cases -- defended DOMA in court. In fact, the Department of Justice, after losing before Tauro in July 2010, appealed the cases to the First Circuit. 

Then, on February 23, 2011, DOJ's head, Attorney General Eric Holder sent a letter to House Speaker John Boehner (R-Ohio) informing him that President Obama and DOJ had determined -- in connection with another case -- that classifications based on sexual orientation like DOMA's Section 3 should be subject to a heightened scrutiny when examined by courts. Under this heightened scrutiny, Holder said, DOMA's federal definition of marriage should be found to be unconstitutional and, as such, DOJ would no longer be defending DOMA in court. 

Following that decision, the House Republican leadership, holding a 3-2 majority on the House Bipartisan Legal Advisory Group, took on the defense of DOMA in several ongoing court challenges -- and new challenges raised since then. As such, BLAG will be defending DOMA in court in the morning, and DOJ will be -- with a few exceptions -- arguing that Section 3 of DOMA should be struck down.

Janson Wu, an attorney with GLAD who has worked on the case, tells Metro Weekly on the eve of the arguments, "It's certainly been a bit of a roller coaster. It's been two years since Tauro's decision came out, and in that intervening time, our plaintiffs have continued to be harmed and families across the country continue to be harmed." 

The legal issues underlying the answers to the straight-forward questions -- particularly those raised in the Massachusetts case -- are more complex. Paul Clement, fresh off his U.S. Supreme Court arguments arguing against the constitutionality of the Affordable Care Act, will be doing his best on BLAG's behalf to show the First Circuit that DOMA was a proper exercise of congressional power.

GLAD Civil Rights Project Director Mary Bonauto, arguing for the Gill plaintiffs, and Massachusetts Attorney General's Office Civil Rights section chief Maura Healey, arguing on behalf of Massachusetts, will be arguing that DOMA is unconstitutional. 

DOJ's Civil Division's acting chief, Stuart Delery, will be arguing that GLAD is -- mostly -- right and that Massachusetts is right -- and wrong.

HAVE COURTS ALREADY DECIDED THE OUTCOME HERE?

A prelimary question is whether a Supreme Court case -- Baker v. Nelson -- or a First Circuit case -- Cook v. Gates -- control the outcome in these cases. 

GLAD and Massachusetts, as well as DOJ and the lower-court judge, have stated that they believe they do not. BLAG disagrees. 

Baker was a case from 1972 in which the Supreme Court held, without argument, that a constitutional claim raised by a Minnesota same-sex couple seeking equal marriage rights did not present "a substantial federal question." Since the Supreme Court's subsequent decisions in Romer v. Evans, where the court struck down an anti-gay Colorado constitutional amendment in 1996, and Lawrence v. Texas, in which the court invalidated sodomy laws as unconstitutional in 2003, many court observers -- and lower courts -- have questioned whether Baker remains good law.

BLAG's lawyers argue, "The lower-court opinions declining to follow Baker, on which Plaintiffs rely, make basic errors this Court should not replicate." In explaining that, however, the BLAG lawyers primarily resort to declaring that Baker remains good law because Lawrence did not explicitly overrule it.

In Cook, the First Circuit considered in 2008 the constitutionality of the "Don't Ask, Don't Tell" policy and, in so doing, discussed the level of scrutiny to apply to the sexual orientation classifications. 

GLAD's lawyers argue to the First Circuit, though, "The Cook court stated only that the Supreme Court's rulings in Romer and Lawrence did not 'mandate' heightened review." The Gill plaintiffs argue also that the decision regarding sexual orientation classifications was not necessary to the court's decision because it related to due process and not equal protection rights -- making the court's writings on equal protection "dictum," and not binding precedent.

BLAG responds that the issue was litigated sufficiently enough to be contained in the opinion. As for the latter point, BLAG's lawyers write, "Nor can Cook’s conclusion that rational basis scrutiny applies to sexual-orientation classifications be dismissed as mere dictum."

Assuming the court gets passed these preliminary questions, full attention will turn to DOMA.

IS THERE A REASON FOR DOMA?

In the first case, Gill v. Office of Personnel Management, GLAD, on behalf of several same-sex couples and surviving spouses of same-sex marriages, argue directly that federal benefits available to opposite-sex married couples are unconstitutionally denied to same-sex married couples. 

In Judge Tauro's decision striking down Section 3 of DOMA, he wrote, "[T]his court is soundly convinced ... that the government's proffered rationales, past and current, are without footing in the realities of the subject addressed by [DOMA]."

Among the rationales cited by Congress in 1996 were: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.

Those, for the most part, have fallen to the wayside in the defenses of the law. Among the reasons given by DOJ in its initial defense of the law were that Congress could have chosen to adopt a "wait and see" approach to the vigorous debate over whether same-sex couples would have their marriages recognized in this country. 

Of that, Tauro wrote, "But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance." And, to that secondary question, he decided, "The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states."

DOJ also argued that DOMA advanced the goal of "consistency in the distribution of federal marriage-based pecuniary benefits." Because of the broad application of DOMA's federal defintion of marriage to all uses of the word "marriage" or "spouse" in federal laws or rules, Tauro decided that such a rationale "strains credulity."

On appeal, BLAG has reiterated several of these rationales in its defense, highlighting the "cautious" approach taken by Congress in 1996.

"Congress could choose either to continue to adopt state definitions or continue to employ the traditional definition for federal law purposes, but it could not have it both ways," the BLAG lawyers wrote to the First Circuit. "If rational basis means anything, the choice as to which ... was surely one for Congress to make."

BLAG also reiterated "fiscal prudence" and "uniformity" as the "uniquely federal issues" that justify DOMA, but it is the question of whether rational basis review or some form of heightened scrutiny applies that could form the crux of Wednesday's arguments -- and the court decision to follow.

WHAT LEVEL OF REVIEW SHOULD COURTS GIVE DOMA?

Janson Wu, an attorney on GLAD's legal team for Gill, talked with Metro Weekly about the case today. "I think that the judges will certainly be interested in the standard of review," he said, noting that GLAD -- like DOJ -- believes that courts should apply heightened scrutiny when considering whether classifications based on sexual orientation violate constitutional equal protection guarantees.

But, Wu adds, "We also believe that DOMA fails under rational basis review as well."

It is this point, whether DOMA should be found constitutional under rational basis review -- the lowest level of review -- where DOJ's position could part ways with the plaintiffs. In filings, DOJ has maintained that, if rational basis review applies, that DOJ's prior arguments apply.

The decision of which level of scrutiny should be applied to government classifications of groups is laid out by the Supreme Court, as defined in Holder's letter to Boehner, by considering four factors: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals 'exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group'; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's 'ability to perform or contribute to society.'"

As such, DOJ determined that such heightened scrutiny should apply to classifications based on sexual orientation.

Of DOJ's position, Wu notes, "It was very affirming to have the federal government finally recognize that gay and lesbian people should be afforded heightened scrutiny ... so we're extremely happy for that stance that they've taken consistently.

"It's very powerful."

The question, which BLAG has raised and about which DOJ's Delery is likely to basked on Wednesday, is where does DOJ stand on DOMA's constitutionality if heightened scrutiny does not apply.

In the Gill case at the trial court level, Tauro decided that he didn't need to decide what level of scrutiny should apply because, in his view, the law is unconstitutional even under rational basis review. 

Tauro wrote: "Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit."

He then concluded, "As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution."

WHAT ABOUT MASSACHUSETTS?

When Massachusetts Attorney General Coakley filed Massachusetts v. United States, her office argued that -- in addition to the harms DOMA causes to individual same-sex couples married under Massachusetts law -- Massachusetts itself suffers harms under DOMA. 

There are two main arguments advanced by Massachusetts, one of which DOJ agrees with and the other of which DOJ continues to argue is incorrect. First, Massachusetts argues that DOMA violates the Spending Clause of the Constitution because it violates equal protection principles. In agreeing with that, Tauro applied the reasoning in his Gill opinion about the unconstitutionality of DOMA and concluded, "[A]s DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress' spending power."

DOJ agrees with that conclusion. DOJ, however, does not agree with Massachusetts that, independent of that, DOMA violates the Tenth Amendment, which protects state sovereignty. 

Tauro found on this point that "[t]he history of the regulation of marital status determinations ... suggests that this area of concern is an attribute of state sovereignty, which is 'truly local' in character."

Accordingly, he concluded, "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid."

DOJ counters in its argument to the First Circuit that "if this Court holds that Section 3 [of DOMA] does not violate equal protection principles, Section 3 applies in areas where Congress is acting in accordance with its constitutionally delegated powers."

WHAT'S NEXT?

At 10 a.m. Wednesday, April 4, the three-judge panel -- Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judges Michael Boudin, appointed by President George H.W. Bush, and Juan Torruella, appointed by President Ronald Reagan -- will consider these issues and, later, issue a ruling deciding whether to affirm or reverse Tauro's decisions.

Then, any party dissatisfied with the ruling could either seek en banc review, in which all of the First Circuit judges would consider the cases, or ask the Supreme Court to take the case.

The week ahead: March 26, 2012

March 29 - "Taxing Civil Rights Gains." a panel on tax issues for same-sex couples, featuring Professors Anthony Infanti and Bridget Crawford, at Seton Hall Law School, 5 to 7 pm.

March 30 - The Fordham Law Review symposium will focus on the Defense of Marriage Act: Law, Policy and the Future of Marriage. 

March 30 - CUNY Law Review will hold its annual symposium on Rhonda Copelon and the Future of International Women's Human Rights Law. Copelon, an extraordinary feminist lawyer, died in 2010. Her work and the theme of the conference include issues of sexual and reproductive rights.

March 30 - Deadline for paper proposals for Society of American Law Teachers' Conference on Teaching Social Justice, Expanding Access to Justice.

Congratulations Judge Fitzgerald

From the Washington Blade:

The Senate on Thursday confirmed to the bench a gay judicial nominee whom Republicans had held up for four months from receiving a floor vote along with other appointees.

Michael Fitzgerald, whom President Obama nominated for a seat on the U.S. District Court for the Central District of California in July, was approved by a vote of 91-6. A simple majority was required for confirmation.

The six senators who voted “no” were Roy Blunt (R-Mo.), Jim DeMint (R-S.C.), James Inhofe (R-Okla.), Mike Lee (R-Utah), Rand Paul (R-Ky.) and David Vitter (R-La.)...The Senate Judiciary Committee reported out his nomination in November unanimously by voice vote to the Senate floor, but his confirmation has been held up along with other nominees...

Most recently, Fitzgerald worked at Corbin, Fitzgerald & Athey LLP in 1998, but prior to that experience, he worked at the Law Offices of Robert L. Corbin PC and at the law firm of Heller, Ehrman, White & McAuliffe.

The new judge also served as an assistant U.S. Attorney in Los Angeles, where he handled criminal cases, such as a drug and money laundering case involving what at that time was the second-largest cocaine seizure in California.

In his questionnaire response to the Senate Judiciary Committee, Fitzgerald wrote that he has participated in some LGBT activism, including the 2008 campaign against Proposition 8 as a door-knocker. Fitzgerald is also a member of the Harvard-Radcliffe Gay & Lesbian Caucus. From 2007 to 2008, he served on the leadership task force for the L.A. Gay & Lesbian Center. In the 1990s, he was a member of the Stonewall Democratic Club.

Fitzgerald isn’t a stranger to represent client in cases related to LGBT rights. He was involved in the settlement of Buttino v. FBI, the 1993 class-action lawsuit involving Frank Buttino, a gay FBI specialist who was anonymously outed to his superior, resulting in the removal of his security clearance and subsequent firing. Fitzgerald asked his law firm at the time to represent Buttino on a pro bono basis.

As a result of the settlement, the FBI renounced its prior policy of viewing homosexuality as a negative factor in regard to security clearances, the FBI agreed to hire an openly lesbian special agent and Buttino’s pension was restored.

Fitzgerald is the fourth out federal judicial nominee chosen by the White House, but third one to receive confirmation from the Senate. Fitzgerald’s confirmation makes him the first openly gay federal judge to serve in California.

In July, the Senate confirmed J. Paul Oetken to the U.S. District Court of Southern District of New York, making him the first openly gay male to sit on the federal judiciary. In October, the Senate confirmed lesbian Alison Nathan to the same court.

Another one of Obama’s gay judicial nominees, Edmund DuMont, was withdrawn after he asked the White House to remove him from consideration. DuMont was first nominated on April 14, 2010, but his nomination languished for more than 18 months without the taking Senate taking action. He was nominated the U S. Court of Appeals for the Federal Circuit and would have been the first openly gay federal appellate judge.

Does the reasoning of the Perry decision hold water?

I have been traveling out of the country for the last two weeks, and so am belatedly responding to the post by Matt Coles, who defended the Ninth Circuit decision in Perry v. Brown as solid constitutional law. I agree (and will also post the more extensive essay on the same topic that I have coming out in the Stanford Law Review online when it is published).

I also know, however, that many marriage equality supporters have criticized the Reinhardt-Hawkins decision. One of the nation's leading constitutional litigators told me sotto voce that its reliance on the fact that Prop 8 withdrew gay marriage, rather than prohibited it before it was adopted (as is the case in the other states that ban it), was weak tea. "It just doesn't make any sense to me," he said, "that the sequence of which came first would determine the constitutional interpretation."

There is pretty much of a consensus among the constitutional law professors that I hang out with that the Perry lawsuit was ill-considered and foolhardy because of the likely outcome if the Supreme Court grants review. (That’s my polite paraphrase.) Now the Ninth Circuit has produced an opinion that provides the Supreme Court with plausible cert deniability. Essential to achieving that goal, however, was crafting the decision so that it applied only to California and not to any other state. Constitutional doctrine enables this because of the principle that courts should adjudicate cases - especially those at the center of culture wars - by resolving the dispute on the narrowest possible grounds. A one-state ruling is about as narrow as it gets.

What is genuinely unique about California is that it is the only state where the state supreme court ruled that same-sex couples have a fundamental right to marry and that an exclusion also violates their equal protection rights - as an interpretation of state law - before a later state constitutional amendment (ie, Prop 8) eliminated those rights. As Matt Coles frames it, the question becomes – so what. Why does that matter in the legal analysis? The Perry court essentially responded by holding that there was no legitimate reason demonstrated in this case for withdrawing the right to marry, even if there were rational grounds for withholding it from same-sex couples.

I agree with the Ninth Circuit that singling out one socially disfavored group for the withdrawal of a right, regardless of when or how it was originally extended to them, reeks of animus. This, together with the denigration of gay people that saturated the pro-Prop 8 campaign, should trigger, as the court held, the kind of heightened rational basis that the Supreme Court utilized in Romer v. Evans. In other words, a targeted taking away of an important right (not identical but similar to the effect of the Colorado constitutional amendment invalidated in Romer) is directly relevant to the standard of review.

Traditional rational basis review allows loosey-goosey classifications that are under- and over-inclusive. Normally judges do not closely question the decision by a state to grant benefits to one or several groups and to exclude other groups who seem similar. It has been only when the classification is inherently suspicious (for example, because of race or sex) that the state had to muster a strong justification for why a particular group was excluded. For example, a court will stringently review why an ethnic group was excluded from a particular program, but not why all landlords or all rental car drivers were. The Perry opinion finds that selective withdrawal of an important right from an unpopular group - because it so strongly signals animus - triggers a more searching form of review.

When, in the next step of its logic, the court applies that heightened rational basis review to Prop 8, it accepts the proposition that there might be a rational basis for a state to limit the benefits linked to marriage to only those couples who might "accidentally procreate." Including same-sex couples would not advance that interest; ergo, it might be permissible under rational basis review to exclude gay couples. But, the court reasons, the proponents of Prop 8 have advanced no legitimate purpose that is rationally related to the decision taking away that right. (My colleague Marty Lederman has done a terrific job of spelling out this part of the opinion.)

The difficulty with the court’s reasoning - and what I think lies behind the criticism of the opinion by so many supporters of marriage equality - is that the accidental procreation argument itself is so tenuous that, by treating it as plausible, it seems like the court is contorting itself to reach an outcome that applies only to California and, as everyone recognizes, would make it easier to escape a writ of certiorari to the Supreme Court. 

I agree with Matt that one historical basis for marriage could be the belief that its material and intangible benefits would enhance the likelihood that adults who unintentionally conceive children will legally bind themselves to each other to provide a stable family dynamic for raising children. Would a state really calibrate the scope of marriage so that only this group of children benefits? The Ninth Circuit essentially says that it is possible for that policy choice to be rational. However, the court found, for the effectuation of this purpose, the defenders of Prop 8 must show that California voters could have rationally believed that this is the goal that they would be achieving by enacting Prop 8. And - given that Prop 8 changes none of the equal benefits that flow to same-sex couples as parents, combined with all the evidence of anti-gay animus, this explanation for Prop 8 is just not plausible. 

Meanwhile - Of late, Justice Ginsburg has been repeatedly noting in her speeches that, while she believes that Roe v. Wade was decided correctly, she also believes that the decision went too far, too fast. It would have been preferable, she says, for the Supreme Court to have struck down only the two state statutes that were before it, rather than issue a ruling under which every state's abortion law was unconstitutional.

This is what is known as a hint.

Is Golinski a watershed decision?

An essay by Professor Julie Nice, University of San Francisco Law School, published in Jurist: 

[Those who have been watching the Prop 8 litigation and the progress of marriage equality legislation in several states] might have missed the importance of Golinski v. US Office of Personnel Management, a sleeper case decided recently by the US District Court for the Northern District of California in the stalwart effort by Ninth Circuit staff attorney Karen Golinski to add her lawful same-sex spouse to her federal health insurance benefits.

Karen Golinski and her wife, Amy Cunninghis, have been in a relationship for over 20 years. They registered as domestic partners with San Francisco in 1995 and with the state of California in 2003. They became legally married during the window in 2008 when the state allowed same-sex marriage. Then Golinski sought to add her wife to her existing federal health insurance coverage. The federal government refused to recognize her lawful California marriage. So Golinski filed an administrative employment complaint, which was heard by Ninth Circuit Chief Judge Alex Kozinski as arbiter.

Kozinski ordered the federal Office of Personnel Management (OPM) to add Golinski's wife to the health insurance plan. Despite this, OPM repeatedly refused to comply with his administrative orders, invoking the federal prohibition against recognizing same-sex marriage enshrined in Section 3 of the Defense of Marriage Act (DOMA). So Golinski was forced to file a federal lawsuit challenging the constitutionality of DOMA. In another twist along the way, President Barack Obama directed the Department of Justice to cease its defense of DOMA. As a result, the defense of DOMA was authorized by a congressional committee, which intervened as the Bipartisan Legal Advisory Group of the US House of Representatives (BLAG).

Now Judge Jeffrey White has ruled that the federal refusal to recognize Golinski's lawful marriage and thereby prevent health insurance coverage to her wife violated her Fifth Amendment right to equal protection under the law. 

What is stunning about the Golinski decision is what it reveals about how far gay rights have come. In this rather run-of-the-mill employment benefits dispute, a federal district court's methodical application of judicial reasoning from recent gay rights victories has resulted in a sweeping ruling in Golinski's favor.

From the outset of the Golinski decision, it was clear that the Supreme Court's gay rights trilogy has transformed the constitutional calculus. Recall that gays prevailed against voters' amendment of Colorado's Constitution to prohibit them from receiving anti-discrimination protection in Romer v. Evans, against the criminalization of same-sex sodomy in Lawrence v. Texas, and against the claim that religious liberty trumped a public law school's anti-discrimination policy in Christian Legal Society v. Martinez.

The district court in Golinski emphasized that these recent Supreme Court decisions governed its decision, rather than a prior anti-gay federal court of appeals decision whose "foundations" and "premises" have "sustained serious erosion." In other words, out with justifying discrimination against gays and lesbians based on criminalization, moral condemnation, and/or behavioral understandings of sexual orientation. It's a new day, with traditional assumptions about gays now subjected to judicial review as to whether they cohere with societal reality.

So what is a post-trilogy district court to do? First the court conducted a routine suspect-class analysis. Relying on research findings by several of the same prominent scholars who testified during the federal Proposition 8 trial, the district court ruled that the class of gays and lesbians has suffered a history of discrimination, that the class remains relatively politically powerless against majority prejudices, that the trait defining the class is irrelevant to an individual's ability to contribute to society, and that the trait is a "defining or immutable" characteristic. So the court applied heightened scrutiny, in this case the intermediate standard of requiring the government to demonstrate that its classification is "substantially related to an important governmental objective." Next the court examined the proffered justifications for DOMA, some of them surprising.

While anti-gay rights forces frequently base their moral condemnation on the presumption that gays are sexually promiscuous, it is strangely the promiscuity of heterosexuals that has emerged as the primary justification for banning same-sex marriage. Indeed, BLAG led its defense of DOMA with this "responsible-procreation" justification. Here is the basic argument: same-sex couples already procreate responsibly by making enormous investments in assisted reproductive technology or adoption to raise children, and marriage should be reserved for encouraging opposite-sex couples to procreate more responsibly because only they have the joint ability to conceive irresponsibly.

The district court in Golinski wholly rejected this defense, however. The court found no credible evidence to dispute the consensus that same-sex couples are equally capable as parents. The court also found that DOMA's denial of federal recognition of lawful same-sex marriages "does nothing to encourage or discourage opposite-sex couples from having children within marriage"; "does nothing to support opposite-sex parenting"; "does not alter parental rights under state law"; and "only serves to undermine providing a stable environment for children of same-sex couples" in violation of equal protection.

Rejecting BLAG's other arguments, the district court found that neither tradition alone nor moral disapproval justify a discriminatory classification. It found no evidence showing federal recognition of lawful same-sex marriages would affect the government fisc. The court also chastised BLAG for contending that DOMA would maintain caution and the status quo. Instead, the court noted that DOMA represented a "stark departure" from the federal tradition of deferring to state law on marriage and that Congress may not "bury its head in the sand and wait for controversy to pass" while constitutional injuries occur. The court also found that DOMA undermined administrative consistency. Finally, the court noted, "having tried on its own," it was unable to "conceive of any additional interests that DOMA might further."

Following the emerging trend of inoculating its decision from an appellate court that might disagree with applying heightened scrutiny, the district court also ruled, in the alternative, that none of the justifications would survive even rational basis review. Noting that rational basis review is "not 'toothless,'" the court searched for a rationale with some "footing in the realities of the subject," but found no such rational relation to a legitimate government interest here.

Twice this district court commented on DOMA's legislative history, which is replete with animus toward gays and lesbians. Members of Congress referred to gays as "immoral," "depraved," "unnatural" and as "homosexual extremists" seeking "to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle," among other choice descriptions. This court concluded that something short of animus may have motivated DOMA. Quoting Justice Kennedy's concurrence in a disability discrimination case over a decade ago, the district court reasoned that prejudice might result not only from malice and animus but also from insensitivity or an instinct to guard against those who are different. Whether motivated by animus or prejudice, the court ruled DOMA discriminates against gays and lesbians in violation of equal protection. 

As I was describing this decision to some friends, one looked up and queried: "How many times do gays have to win before they win?" It's a good question. To be sure, the saga is far from over. But momentum seems to be building from a series of recent decisions by state and federal courts across the nation rejecting the primary "responsible procreation" justification as well as other defenses designed to deny both the designation and benefits of marriage to same-sex couples and their children. A new day really seems to have dawned when a federal district judge performs his regular job of enforcing equal protection by refusing to allow the government to rely on tired assumptions that "exceed the bounds of rational speculation" to justify discrimination based on sexual orientation.

LGBT officeholders now visible in Latin America, in tandem with continuing anti-gay violence

From USA Today:

Tatiana Pineros, a man by birth and a woman by choice,...is the first transgender individual to be appointed to head Bogota's social welfare agency. Pineros, 34, is also a high-powered public servant who manages a $360 million budget and nearly 2,000 employees in Colombia's biggest and most powerful municipal government. Her appointment by Bogota's new mayor to head the capital's social welfare agency was remarkable for how unremarkably it was received...

Across Latin America, public acceptance is gradually growing for lesbian, gay, bisexual and transgender officials. It's a phenomenon that has accompanied activists' broader struggle to win rights to marry, adopt children or share financial benefits with same-sex partners, and to transform the way socially conservative nations view and treat gays...

Ecuador's new health minister, Carina Vance, can attest to the change. She has a master's degree in public health from UC-Berkeley. She is also openly lesbian. Before being named in January, Vance, 34, campaigned as an activist against clinics accused of using coercion to try to "cure" gays of their homosexuality. Her ministry is now investigating those alleged practices. She told a TV interviewer last month that "we will take action against those responsible."

Brazil's first openly gay national lawmaker, Rep. Jean Wyllys, was elected last year, and activists say six other openly gay people have been elected to public office in Latin America's most populous nation. Wyllys, who first gained fame on the Big Brother reality TV show, has so far failed to pass legislation against homophobic insults and discrimination. His nemesis in the battle has been the Congress' evangelical Christian caucus.

Despite Wyllys' rise, openly gay Brazilians are rare in appointed positions. The gay community was outraged last year when a heterosexual was named to head the gay rights division in the federal Human Rights Ministry. The heterosexual never took the job, which remains unfilled. Luiz Mott, an anthropologist and founder of the Grupo Gay da Bahia, said many more homosexuals are in government posts but have kept their sexual orientation private in a kind of self-censorship.

Advances have also been made in other countries but through appointment or complicated election laws that allow legislators to win their posts without being directly elected. Mexico, for example, has one gay national lawmaker, Congresswoman Enoe Margarita Uranga Munoz, who ended up high on the list of candidates for seats that Mexican law allots to parties by their share of the vote. Sen. Osvaldo Lopez, the only openly gay member of Argentina's Congress, was named in July to replace a senator who died in an auto accident...

...Activists also say the successes of a few openly gay officials hasn't stopped anti-gay violence. On March 4, a gay 24-year-old Chilean was so brutally beaten that doctors had to induce a coma to treat him for head trauma and a broken right leg. Prosecutors say a swastika was drawn on the victim's chest.

"The general practice on the continent is of an open season on LGBTs that never closes," the gay rights group Colombia Diversa says in a regional report on violence against the community. It found that 83 of 226 murders of LGBT people in Colombia from 2006 to 2009 were classified as hate crimes, with no motive listed for most.

Brazil's Grupo Gay da Bahia, which has been keeping records of gay-bashing for more than three decades, says 260 LGBT people were murdered in Brazil in 2010, or 113% more than five years earlier. Police in Lima, Peru, beat LGBT rights activists who smooched in a downtown plaza during a "Kisses Against Homophobia" demonstration in February 2011...

[In Bogota, as] part of her appointment, [Pineros will] oversee Bogota's social welfare spending on everything from homes for the elderly to cafeterias for preschoolers. Mayor Gustavo Petro said via email her appointment "is a sign this mayoral administration recognizes diversity and doesn't discriminate based on sexual orientation, ethnicity or age." In a sign of the times, the public reaction to Pineros' appointment has been smooth, with no criticism in the last two months ago.

But that doesn't mean Bogota's LGBT community is universally embraced. Bogota's secretary of education, Oscar Sanchez, is under assault by conservatives for a program to help primary and secondary school teachers discourage race- and gender-based discrimination. When Brazil's Education Ministry designed a program last year battling anti-gay discrimination, complaints from evangelicals in Congress prompted President Dilma Rousseff to withdraw the proposed legislation.