Legislative roundup

Obviously, the big legislative news this month comes from Vermont, which became the first state to legalize same-sex marriages without a court order - and over a gubernatorial veto, no less. Much virtual and literal ink has been spilled on this, so I will only comment on the transparent foolishness of Gov. Douglas's justification for his veto. Rather than defend his veto on its merit, Douglas said the legislature shouldn't be spending time on this issue while there are pressing economic and budget matters. They may be logical criticism of the legislature's action, but it is completely illogical as a justification for a veto, which comes only after the legislative effort has been spent, and serves only to set the stage for the legislature to spent more time on an override.

There's lots more to tell. There were big headlines the same week from DC, where the District Council unanimously voted to recognize out-of-district same-sex marraiges, as marriages. When finalized, the measure will of course be subject to an override by Congress, and we will have to wait and see if the Dems can block any such move.

In Nevada, the governor is threatening to veto an impending domestic partnership bill. And in Washington, the legislature has passed an expansion of the existing DP law.

NY Gov. David Paterson has said he will soon introduce marriage equality legislation there. Not clear yet if it can pass the state Senate, which now has a slight Democratic majority. Reproductive rights advocates in New York are also gearing up for the anticipated reintroduction of a Reproductive Health Act, which would codify the right to contraception and abortion New York law, and remove abortion from the state penal code.

On a second vote, the New Hampshire House passed a gender identity antidiscrimination measure last week, by one vote: 188-187. Thus, it appears that the deciding factor in the previous 149-181 "nay" vote was in fact lawmaker turnout, rather than the success of opponents' deceptive messages on bathroom use. That's encouraging.

Earlier this month, North Dakota's Senate rejected by a 2:1 margin a bill that would have purtported to bestow "personhood" on zygotes and embryos. This is yet another defeat for the putative "personhood" movement, but I suspect their aim is less to actually pass legislation than to use these attention-getting bills as opportunities to promote their dressed-up message of full criminalization. Anway, anti-choice groups did get two wins in the state Senate, passing bills that (like one recently passed in Kansas) would require medical facilities to offer ultrasounds before abortions, and (like one upheld by a federal court last year in South Dakota) require doctors to tell patients that abortion terminates a "human life."

In the U.S., private or public insurance coverage for surgery related to gender transition is very seldom available. In Canada and Europe, it's a different story. But in tough economic times, this coverage is, depressingly but unsurprisingly, first on the chopping block. The province of Alberta has now eliminated its public coverage for transition-related surgery. As noted over at Bilerico, this may not be the last word here, since a human rights tribunal in Ontario last year ordered the reinstatement of such coverage there. Blue Cross/Blue Shield of Michigan has also eliminated coverage, citing the need to cut costs. As also pointed out at Bilerico, this may not actually make financial sense in the long-term, since cutting off access to surgery can have its own health care costs down the line.

Why Iowa Matters

Today the Iowa Supreme Court invalidated that state's ban on civil marriage for same-sex couples. The lengthy opinion is available here (PDF). The law profs and other queer bloggers in my blogroll will undoubtedly have many interesting things to say about this decision. Here, in a nutshell, is why I think this decision is so important:

• Of the several courts that have ruled for relationship recognition for same-sex couples, this is the first unanimous ruling.
• This is also the first such ruling from a court in a non-coastal state.
• The ruling clearly rejects any substitute for full equality, such as civil unions.
  
• Much as in Massachusetts, the Iowa Constitution is difficult to amend; it would take at least three years to do so.
• The Court's opinion is very, very thorough, smart and readable; it does an especially good job of dismantling the state's arguments about "immutability" and "political powerlessness" (which, as I have discussed here, often trip courts up). Like the decisions of the Connecticut and California courts, this one provides an invaluable road map for other courts addressing this and many related issues. At the same time, the decision reached only as far as it needed to, ruling on Equal Protection grounds alone and sorting out some of the thorny tangles of Equal Protection doctrine while avoiding others when it was clear that, however they were resolved, the Iowa law would fall.
  

I think this is a momentous decision, indicating that despite the setbacks of Proposition 8 and the string of bad rulings in 2006, litigation is still one among several viable and needed strategies for LGBT equality.

Update: I doubt I can improve upon the great summary and discussion of the opinion over at Leonard Link.

NH Legalizing Same-Condiment Marriage

Or so state Rep. John Cebrowski has it:

"Creamy peanut butter and crunchy peanut butter can't be a peanut butter and jelly," said Rep. John Cebrowski, R-Bedford.

I think that means he opposed the bill. Nevertheless, the state House voted 186-179 yesterday to permit creamy and crunchy peanut butters to marry one another. Vermont is also close to legalizing these sticky, chewy unions, though Republican Governor Jim Douglas says he'll veto the legislation, apparently out of concern for the risk of salmonella.

Roundup

Via Bilerico, Argentina is ending its ban on gay and lesbian folks serving openly in the military. If they can do it, we can do it.

A new study shows "red" states lead in online porn subscriptions. This strikes me as raising interesting questions about "local community standards" in obscenity cases. (Indeed, I recall that at least one defendant has recently tried to use data on risque Google searches to establish the relevant standard.)

Gay & Lesbian Advocates and Defenders (GLAD) has filed a challenge to the federal Defense of Marriage Act on behalf of married Massachusetts couples seeking marriage-related federal benefits. This seems to mark a shift in strategy from the LGBT legal movement, which heretofore has tried to keep suits regarding marriage and DOMA out of the federal courts for fear of a) setting bad precedent without first building a firmer foundation in state courts and in non-marriage cases, and b) reviving the proposed Federal Marriage Amendment. I'd guess that (b) is now seen as much less of a concern, and (a) is seen as a manageable concern if cases are brought and framed selectively. Here, no state would be forced to accept the plaintiffs' marriage; rather, they are seeking federal recognition of a state-recognized marriage for the purpose of specific tax, Social Security and other benefits. Balkinization has a preliminary assessment of the case.

Finally, Senate Republicans are apparently trying to use the current Omnibus Appropriations bill to eliminate federal Title X funds for Planned Parenthood clinics across the country. An amendment will be introduced today, so folks should call their Senators forthwith.

The 9th Circuit internal benefits decisions

Thought I'd say a little bit more about the 9th Circuit employee benefits decisions I mentioned yesterday. Again, these are decisions by individual 9th Circuit judges, sitting as hearing officers in an internal court employee dispute, so they have no precedential value. Basically, the court's benefits administrator denied coverage for these employees' spouses, and individual members of the court were assigned to resolve the disputes. In both cases, the judges granted benefits to same-sex spouses - Judge Reinhardt on constitutional grounds, and Chief Judge Kozinski on statutory grounds.

No mention of Prop 8. As Arthur Leonard notes, both cases involve California couples, and both judges silently assume the present validity of their marriages.

Curiously, neither opinion mentions Prop 8 and the controversy over whether it retroactively invalidates the marriages performed during the window of opportunity. Even more curiously, in light of Kozinski's desire to avoid the constitutional question, he doesn't take advantage of Prop 8 to either put off deciding the grievance until after the California Supreme Court rules on Prop 8's validity..., or even to say that although the marriage in his case may have been valid when the grievance was filed, it is no longer valid so the case is moot.

Reinhardt's decision. Considering whether the exclusion of same-sex spouses from benefits violated the court's Equal Employment Opportunity plan, Reinhardt quotes at length from the California Supreme Court's Marriage Cases decision: exclusion of same-sex spouses is facial discrimination. This, he says, brings us to DOMA. He says that in view of Witt, it is likely that some form of heightened scrutiny applies, but he doesn't go there because the law fails rational basis review. He concludes that the application of DOMA to federal benefits is blatant discrimination without any rational basis, on much the same grounds as the state-court marriage decisions.

Kozinski's decision. While Reinhardt thought the federal benefits statute clearly limited benefits to spouses recognized under DOMA, Kozinski took the view that the law allows agencies to provide benefits for other unspecified family members, including same-sex spouses. He favored this interpretation in part because it allowed him to avoid the constitutional question. Kozinski does discuss the constitutional implications of the case, but as conservative gay law prof Dale Carpenter put it, his comments are "intriguing without committing him to anything." Kozinski wrote:

...If I were to interpret the [federal benefits law] as excluding same-sex spouses, I would first have to decide whether such an exclusion furthers a legitimate governmental end. Because mere moral disapproval of homosexual conduct isn't such an end, the answer to this question is at least doubtful....

Whether DOMA's sweeping classification has a proper legislative end, or whether it reflects no more than an invidious design to stigmatize and disadvantage same-sex couples, is a hard question. The inquiry conducted by the Court in [a leading precedent involving a housing law designed to disadvantage Blacks] into the history and context of the California law was searching and careful, and to conduct a similar inquiry of DOMA would be a delicate and difficult task.

A separate line of authority would also require me to determine whether DOMA impermissibly punishes homosexuality. ...Though [the] facts [of Lawrence v. Texas] are narrow, its reasoning and the potential scope of its holding are broad....The effects of Lawrence and Witt on a discriminatory benefits law are far from clear.

So Kozinski recognizes that there are multiple plausible bases for challenging DOMA, and that justifications typically advanced for it are far from slam-dunks.

The decisions are terse, as befits their nature as resolutions of internal disputes. We could expect much more searching analysis from both these judges in the context of actual litigation. Nevertheless, here we clearly have two federal judges, a notorious Carter-appointed liberal and a prominent Reagan-appointed conservative, both of whom have serious concerns about DOMA.

Hopefully, we will continue to see an absence of federal lawsuits challenging DOMA - whatever the 9th Circuir might say, I don't think I want the current Supreme Court deciding these issues. Instead, I hope these decisions encourage federal agencies to employ an expansive interpretation of eligibility for federal benefits, until such time as DOMA is repealed.

Best wishes to Justice Ginsburg, & more

Justice Ruth Bader Ginsburg had surgery today for early-stage pancreatic cancer. She hopes to be back on the bench when the Court's current recess ends in three weeks. Ginsburg is often the strongest voice of justice and equality on the Court, and we should all hope for her speedy recovery. SCOTUSblogger Tom Goldstein warns that we shouldn't be rushing to predict her retirement (or worse).

In what appears to be a national first, two lawyers who work for the U.S. Court of Appeals for the Ninth Circuit will get health insurance coverage for their same-sex spouses. This is the result of internal court orders by liberal lion Judge Stephen Reinhardt and conservative Chief Judge Alex Kozinski, both sitting as hearing officers on internal employment disputes. At a glance, it seems that Reinhardt concluded that the Defense of Marriage Act (DOMA) is unconstitutional as applied to employee benefits, while Kozinski avoided the constitutional question by interpreting the statute governing federal benefits to permit coverage for non-spouses. These decisions do not create judicial precedents, but Lambda Legal rightly told the press that "they will become part of our national conversation about fairness and equality for same-sex couples." Right-leaning prof Eugene Volokh summarizes the decisions, and is skeptical that they can be justified without overturned DOMA as a whole.

The Washington Post today discusses how Obama has been trying to work both sides of the fence on reproductive rights, so far drawing big praise and sharp criticism on both sides. His record so far: Rick Warren (boo); reversing the Global Gag Rule (yay); releasing a measured statement praising the anniversary of Roe v. Wade (small yay); pressing Dems to remove from the stimulus package a measure making it easier for states to cover contraception under Medicaid (boo); stating he hopes to reintroduce the Medicaid measure as part of a later bill (yay). As with his stances, and so far his inaction, LGBT equality issues, it will take some time to tell whether Obama is currently being wishy-washy or just laying the groundwork for bigger issues in a politically savvy way.

Oh, and the New York Times reported recently that "The Myth of Rampant Teen Promiscuity" is, well, a myth. So much for my next bestseller. Of course, the NYT has its own sexual issues.

Miscellaneous updates: civil rights at home and abroad

Maybe you've heard about the Maryland State Police spying scandal. Basically, in 2005-06 the state police were spying on a number of peace, anti-death penalty and other progressive grassroots groups in the state, on the pretense that they were a security threat. Turns out that among those groups was Equality Maryland - yes, a bunch of LGBT lobbyists in suits were deemed a security threat.

And speaking of witchhunty goings-on, remember U.S. Attorney Leslie Hagen, who was fired from the Bush Justice Department for being a lesbian? Well, the DOJ has finally filled her position by hiring -- Leslie Hagen. How's that for change?

Colombia's highest court has held that the South American nation must provide government benefits to same-sex couples on the same footing as heterosexual married couples. No translation of the opinion is as yet available, but hunter of justice excerpts a statement on the ruling from Colombia's leading LGBT rights group. Leonard Link - which always has excellent coverage of LGBT and HIV issues in immigration and asylum law - has a thoughtful discussion of the ramifications of this decision for asylum seekers. The issue is an interesting one because, like South Africa, Colombia has seen robust recognition of constitutional rights for sexual and gender minorities, and at the same time continues to see persistent, widespread homophobic violence. Meanwhile, Constitutional Law Prof blog notes that this is not the trailblazing decision from this court on matters of gender and sexuality; in the 1990s the court rendered a series of decisions placing limits on genital reconstruction surgeries for children born with ambiguous genitalia.
[Yes, Colombia was initially misspelled as "Columbia." You would, of course, expect this sort of thing from Columbia.]

Meanwhile, Bolivian voters have endorsed a new constitution. The new document is most notable for seeking to give more rights to indigenous people, and for allowing President Evo Morales to run for another term. But it's also notable that unlike the former constitution, the new one does not contain bans on abortion or same-sex marriage - absences which angered some Catholics. Indeed, the new constitution apparently bans discrimination on the basis of sexual orientation, which some think could lead to rulings in favor of marriage equality. This looks like another case of LGB civil rights benefiting from broader political changes led by a coalition that happens to favor equality, even though there is far from a broad national consensus on equality issues.

Honey, I bugged our bedroom

I asked my wife the other night whether, hypothetically, she would feel violated if I, her loving but perhaps unduly suspicious spouse, hid a videocamera in our bedroom and recorded her comings and goings without her consent. Of course! she said. What the hell is wrong with you?

Now, I said, clearly I wasn't going to do this, as I would have just given myself away. But, hypothetically, would she feel entitled to sue me for doing this? Would she expect to be allowed to do so? Would it matter whether we were a legally married couple? She said she thought she should be entitled to sue, but doubted the courts would permit it. Understandable.

I was pleased to be able to tell her that, at least in Iowa, she would have every right to sue me, legally married or now. So says the Iowa Supreme Court in last week's ruling in In re Marriage of Tigges (PDF). Here, the privacy claim was brought by a wife in the course of the couple's divorce. She claimed that her husband secretly taped her before and after their separation, and that although the recordings didn't show anything untoward, she nevertheless felt outraged and violated. The court ruled that she was entitled to damages, saying:

Whether or not Jeffrey and Cathy were residing together in the dwelling at the time, we conclude Cathy had a reasonable expectation that her activities in the bedroom of the home were private when she was alone in that room. Cathy’s expectation of privacy at such times is not rendered unreasonable by the fact Jeffrey was her spouse at the time in question, or by the fact that Jeffrey may have been living in the dwelling at that time.... Any right of access to the bedroom held by Jeffrey did not include the right to videotape Cathy’s activities without her knowledge and consent.

There are three key elements to the court's reasoning: first, neither the marital relationship nor a common living arrangement mean surrendering any right to privacy; second, just because you let someone come in and see you sometimes doesn't give them permission to see you anytime and without your knowledge or permission (this is obvious really - like the rule that marriage is no defense to rape); and third, that consent to see is not the same as consent to videotape and possibly share.

The court further ruled that the videotaped spouse had a right to damages even though nothing untoward was recorded and no one else saw the tapes, saying: "The wrongfulness of the conduct springs not from the specific nature of the recorded activities, but instead from the fact that Cathy’s activities were recorded without her knowledge and consent at a time and place and under circumstances in which she had a reasonable expectation of privacy."

The court noted similare rulings in North Carolina and Texas. In North Carolina, the court suggested that the expectation of privacy “might, in some cases, be less for married persons than for single persons,” but that “such is not the case . . . where the spouses were estranged and living separately.” That court didn't actually rule on the rights of married, cohabiting persons, however, and the Texas court agreed that whether the sposues are still cohabiting is irrelevant.

It seems as though I am posting a lot about the Iowa Supreme Court lately. First the indecent exposure case, then the marriage equality case, and now this. Thanks for keeping things interesting, Iowa.

H/t How Appealing.

On the U.S. Supremes and the Iowa Supremes

Tomorrow I'll be going to the Supreme Court to see arguments in Ashcroft v. Iqbal and AT&T v. Hulteen. A preview of the Hulteen case by yours truly appears today at ACSblog.

The Iowa Supreme Court heard oral argument today in Varnum v. Brown, the sole marriage equality case currently pending before a state high court. Follow the link to watch the arguments, or check out Arthur Leonard's recap.

Dennis Johnson, an Iowa attorney cooperating with Lambda Legal, argued powerfully on behalf of the plaintiffs. I was particularly struck with his response to the inevitable "what about polygamy?" question. Rather than seize on the usual arguments that multiple marriage is associated with abuse and harmful to children and women, or otherwise trying to distance same-sex couples morally from polygamists, Johnson gave the response what I have always thought to be the obvious, sensible response: unlike same-sex marriage, polygamy raises numerous new, practical questions about legal rights and responsibilities that may justify different treatment by the legislature. I'm not sure that this is ultimately persuasive as a policy argument, but as a constitutional argument is suffices. The practical legal consequences of bilateral marriage are the same without regard to gender. Multilateral marriage raises new questions about consent, custody, inheritance, and a number of other matters, all of which would have to be sorted out by the legislature and/or the courts -- and in the context of litigating recognition for same-sex couples, that is all that needs to be said.

California marriage update

The New York Times reported last week that California is looking into whether the Mormon Church failed to report in-kind contributions to the Yes on Prop 8 campaign.

The Los Angeles Times reported that pro- and anti-equality groups are preparing for marriage to be an issue in California's 2010 judicial retention election, and for a possible initiative to repeal Prop 8.

Reuters reports on the concerns of civil rights groups representing racial and ethnic minorities that a decision to uphold Prop 8 would have effects far beyond LGBT rights. These groups have filed a brief supporting the Propr 8 challenges with the California Supreme Court.

At Bilerico: Is New York's new Democratic state senate majority backing away from a marriage equality bill, which civil rights advocates hoped to see introduced next year?

After Prop 8, what next for the LGBT movement?

The promised 2257 analysis is forthcoming, but give me a break: I have some kind repetitive stress injury, which needs a look from a doctor. Meanwhile, there are lots of reflections on Prop 8's passage out there, some of which I'd like to highlight here.

Some folks think this loss means we need to shift to a focus on building public support for same-sex marriage instead of hanging our hopes on litigation.

Jonathan Rauch:

The civil-rights model tried to separate marriage from the political process, because we didn't have nearly enough straight support to win. That left our opponents with the political field to themselves while we busied ourselves in the courts. Not any more. We now have enough straight allies to win, long-term, in the political arena.

To judge from the protests, that's where we'll be going. Goodbye Thurgood Marshall, hello Martin Luther King. Goodbye Lambda Legal, hello ACT-UP. Sure, more love, less anger than in the AIDS days. But the protests, provided they are peaceful and don't turn hateful or anti-religious, point the way forward.

The Los Angeles Times agrees:

Wresting equal rights from a society reluctant to grant them isn't easy. It can take years of nonviolent resistance, passionate speeches and even in-your-face radicalism. If people who voted yes on Proposition 8 say they didn't see it as a civil rights matter, that's because until now there has been nothing resembling a civil rights crusade by the gay community. Courts can assist downtrodden groups, but they never have and never will be enough to guarantee equality on their own.

The LAT has plenty of criticism for the No on 8 campaign, and for political leaders who opposed the measure but refused to come out front and fight it.

Nan Hunter points out that a same-sex marriage case remains pending in Iowa, and the prospective getting marriage through the legislature in New York and New Jersey is looking up. She also speculates that anti-gay groups will try to reproduce the newly-passed foster parenting and adoption ban in Arkansas. She goes on to say:

The place for our team to concentrate - the location of our greatest strength - is the non-marriage front. After all, if we had not had a Republican president and congress for these last years, we would have enacted ENDA in the first year or two of the Gore presidency. The priority would have been securing and implementing a national anti-discrimination law. I don't think that the focus we have seen on marriage would have mushroomed in anything like the way that it has. ...The upside potential for lgbt rights is enormous right now, although it may not have a lot to do with marriage.

She urges passing an inclusive ENDA and replacing the so-called Defense of Marriage Act with federal recognition for state-recognized domestic partnerships, civil unions, and marriages. Hunter also points to the ingenious efforts of Equality Utah, who are taking the Mormon church at its word: since y'all said during the Prop 8 campaign that you don't object to many forms of relationship recognition for same-sex couples, why don't you work with us to secure them?

Last and perhaps best, Bi-Furious takes a stronger tack on shifting the LGBT movement's focus away from marriage equality:

I don’t think it should be our top priority. I’m frustrated with the way it appropriates a disproportionate share of our advocacy and resources, to the exclusion of things I feel would be a much better use of those things. In many places we can still be denied housing and employment because of our sexuality. This is true in almost all places of those who don’t conform to binary gender norms (and those of the gender assigned to them at birth, thank you very much). People are still being harassed, beaten, raped, and murdered for their perceived queerness. ... Many medical professionals are still trying to counsel and medicate queers out of our sexual preferences or gender identities, and giving us less than their best care besides.... Save for the controversy over an ENDA that left out trans folks (and now that we have the kind of Democratic majority in Congress that even the people who wanted to leave trans folks out in the cold said we’d need to pass an inclusive ENDA, could we get on that, please?) pretty much everything I’ve heard about queer rights from mainstream sources in the past several years has been regarding marriage. I think this is a terrible misprioritization, and a gross misappropriation of our attention and energy. I rank marriage as less important than people’s lives and bodily integrity, and I don’t understand how the “gay agenda” doesn’t.

Hear, hear.

Scattered observations on the election

At Bilerico, Jillian Weiss recalls Barney Frank's statement last year that "if we can pick up 15 Democratic [House] seats, then I think we are in a good position to pass a transgender-inclusive ENDA." As Weiss notes, House Democrats picked up at least 19 seats. By the strategic standards of those who supported a non-inclusive ENDA, the time for that strategy is behind us. It is time to move forward with a fully inclusive bill.

Chris at Sex in the Public Square and Renegade Evolution have some reflections on the effort to pass Proposition K in San Francisco.

It now appears that even when all the votes are counted Prop 8 will pass. There is already litigation underway to challenge it. I've previously opined that attempting to challenge the substance of Prop 8, as somehow irreconcilable with the rest of the constitution, is a loser. But the leading argument being made now seems to be that Prop 8 is such a significant change that, under the state constitution, it should have been approved by the legislature before going to the voters (which would never have happened). The alternative argument is that the amendment isn't retroactive. It's not clear to me how strong these arguments are, but how the state's high court rules on them could well be an issue in the justices' 2010 retention races. Arthur Leonard gives a rundown of these suits, as well as the probably constitutional challenge to the Arkansas foster parenting/adoption ban.

Ballot measure, election results!

How Appealing collected the following AP headlines:

"California gay marriage vote still undecided"
(though it's not looking good)

"Florida voters pass amendment banning gay marriage"

"South Dakotans reject second try at abortion ban"

"Colo. voters soundly defeat anti-abortion measure"

"Ark. voters OK unmarried foster, adoption bans"

"Neb. voters approve ban on affirmative action"

Also, Federal Marriage Amendment standard-bearer Marylin Musgrave lost her house seat in Colorado!

In San Francisco, the tally on Proposition K is reportedly around 57-43 against. I don't know what those heavily involved in the campaign think, but to me that looks like a very strong showing for a highly controversial measure. It has sparked a lot of debate and perhaps will be back in the future.

The election results have me wondering about the following questions:

• Which Justice(s) will be announcing their retirement from the Supreme Court come next summer?
• How will the changed political landscape change the fight over trans inclusion in the Employment Non-Discrimination Act?
• Will any LGBT rights legislation move in Congress in Obama's first year in office?
• Will Proposition 8 (if it passed) be held to be retroactive?
• How many years will it be before voters consider reversing Proposition 8?
• When Arkansas's new adoption ban is inevitably challenged in court, will the Eighth Circuit Court of Appeals split with the Eleventh Circuit, which upheld Florida's ban?
• Will the defeat of the "embryo rights" amendment in Colorado and the all-out abortion ban in South Dakota forestall a push for similar measures in other states? (Hopefully so, and likewise the failure of the anti-trans measure in Montgomery County, MD to make it on the ballot!)

Props 8, 4, and K

The good news is that the latest polling shows Proposition 8 down 44-52 in California. This is encouraging, because recent polls showed Prop 8 edging ahead. It's likely to come down to persuading people who say they are against same-sex marriage that it nevertheless shouldn't be banned:

Despite opposition to the ballot measure, the state remains split over the underlying question of same-sex marriage, said Mark Baldassare, director of the poll. In a separate question in the survey, 49 percent of those questioned opposed allowing gay and lesbian couples to legally marry in California, while 47 percent were in favor.

"I've said since August that it could be a close election because the state is so split on the same-sex marriage question," Baldassare said. "About 20 percent of likely voters oppose same-sex marriage but say they'll vote 'no' on Prop. 8."

The bad news is that Proposition 4, which would endanger teens' health and safety by requiring parental consent for all abortions, is ahead 46-44 - with fully 10% undecided. As with Prop 8, the campaign for Prop 4 is a dishonest one, as the LA Times notes in its editorial against the measure:

The supporters of Proposition 4 have managed to frame their campaign around two ideas, both misleading, that hold particular appeal for voters. One is that, in addition to allowing girls to seek court permission for an abortion, it will give those who justifiably fear telling their parents an "out" by allowing them to notify another adult relative instead. This would indeed give the measure more credence, if it were true. But in order to use it, the girl would have to accuse her parents, in writing, of child abuse, with the accusation to be forwarded to law enforcement authorities. It's the equivalent of telling girls they can get an abortion by walking into a police station and having their parents arrested.

The campaign also assumes a kinder face by saying that this is about protecting girls from adult sexual predators; newly knowledgeable parents would put an end to the sex crimes. But a study released in September by UC San Francisco found that few girls have relationships with significantly older males and that the percentage of those who do does not appear to change with notification laws.

For better or worse, I'm not aware of any polling data on San Francisco's Proposition K to decriminalize sex work. But check out this fairly balanced examination of the measure and the debate at Huffington Post. Notably, the measure has split the city's two LGBT Democratic organizations, named after Harvey Milk (for) and Alice B. Toklas (against) respectively. I'm not sure about Alice, but I'm pretty sure Harvey would have supported Proposition K. (Speaking of which, can you believe Sean Penn is playing Harvey Milk?!)

Lawyers for FLDS children profiled in ABA Journal

This month's ABA Journal has a fascinating feature on the Texas FLDS custody debacle this past spring, and the volunteer lawyers who represented the more than 450 children removed by the State of Texas. One of those lawyers is Susan L. Hays, who founded an organization (Jane's Due Process) that helps Texas teens obtain abortions. Hays describes how the experience challenged her expectations about FLDS women.

The article's penultimate paragraph quotes another lawyer with a sentiment one rarely hears when Mormon fundamentalism and polygamy come up:

“The problem is not really polygamy; the problem is the belief that women and children are unilaterally the property of the priesthood, and they raise the girls from the cradle to grow up and be mothers and plural wives. It’s all the girls have ever known.”

Hardly anyone ever considers these things separately, of course; in upholding Utah's criminal polygamy law, the state's high court said the law was justified because of the crimes against women and children associated with polygamy.

Connecticut Justices struggle with "political powerlessness"

As with previous marriage litigation, the Connecticut Justices struggled with the question of whether gay and lesbian people are "politically powerless." In fact, this was a primary point of disagreement for two of the dissenters. I've previously opined that in deciding whether a classification in law merits heightened scrutiny, courts should not try to decide whether an affected group is "politically powerless." I argued that this test is illogical, leads to absurd results, and is not required by Supreme Court precedent.

The majority on the Connecticut court held that meeting the "politically powerless" prong is not necessary where a group is clearly a discrete minority of the population. In other words, a group has to be either a discrete minority or politically powerless. Which is how I read the case law.

The majority nevertheless went on to discuss the "powerlessness" prong at length, because it represented the State's main argument on the question of "quasi-suspect class" status, and because other courts had relied on this prong even though they recognized that gay and lesbian people are a discrete minority. Having (unnecessarily) taken up this prong, the majority struggles to make sense of it in light of the history of race and gender cases. It ends up with this:

We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means. Consequently, a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process. Applying this standard, we have little difficulty in concluding that gay persons are entitled to heightened constitutional protection despite some recent political progress.

In other words, a group doesn't have to be totally powerless, it just has to be powerless enough. At the risk of sounding like Justice Scalia, this is a mushy, contentless test if there ever was one. It comes down to, "we don't think political progress is occurring fast enough in the appropriate direction." This sort of call isn't necessary and courts can and should avoid it.

As the majority notes, "no other court has undertaken a thorough analysis of this factor." Happily, this court recognizes that its discussion of "powerlessness" is pure dicta, and one may hope that its earnest but messy attempt to make sense of this test encourages other courts to avoid basing their decisions on it.

Connecticut Justices get it right on immutability

From the majority opinion (citations omitted):

A number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion. Although we do not doubt that sexual orientation—heterosexual or homosexual— is highly resistant to change, it is not necessary for us to decide whether sexual orientation is immutable in the same way and to the same extent that race, national origin and gender are immutable, because, even if it is not, the plaintiffs nonetheless have established that they fully satisfy this consideration.

Sexual intimacy is ‘‘a sensitive, key relationship of human existence, central to . . . the development of human personality . . . .’’ Thus, the United States Supreme Court has recognized that, because ‘‘the protected right of homosexual adults to engage in intimate, consensual conduct . . . [represents] an integral part of human freedom’’; individual decisions by consenting adults concerning the intimacies of their physical relationships are entitled to constitutional protection. Indeed, it is indisputable that sexual orientation ‘‘forms a significant part of a person’s identity.’’ It is equally apparent that, ‘‘[b]ecause a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.’’

In view of the central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution. This prong of the suspectness inquiry surely is satisfied when, as in the present case, the identifying trait is ‘‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it] . . . .’’ In other words, gay persons, because they are characterized by a ‘‘central, defining [trait] of personhood, which may be altered [if at all] only at the expense of significant damage to the individual’s sense of self’’ are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic. To decide otherwise would be to penalize someone for being unable or unwilling to ‘‘change . . . a central aspect of individual and group identity," a result repugnant ‘‘to the values animating the constitutional ideal of equal protection of the laws.’’

This is clearly the correct analysis, and hopefully other courts will now begin to come around - including federal courts considering "Don't Ask, Don't Tell." Of course, recent decisions applying intermediate scrutiny to limit on sexual privacy ought to lead to the same destination.

Connecticut Supreme Court rules for marriage equality

Connecticut's legislature created civil unions in 2005 (without prompting from any court). This put same-sex couples on the same legal footing as couples in California, albeit under a slightly different nomenclature. Now the state's high court sides with the California court:

We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians,1 and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.

Look for full coverage at any number of other legal blogs; I'm still working on some other posts. But this decision is very encouraging, and (I suspect) unlikely to be overturned at the ballot box. The full decision is here (PDF), and here are the three dissents.

Bride, groom call foul on marriage equality

A Sacramento couple told their local paper that their "rights were violated" when they were required to sign a marriage license as "Party A" and "Party B" rather than "Bride" and "Groom." They apparently were unaware that, following In re Marriage Cases, the state changed its forms to be gender-neutral. When they altered their forms, they were rejected.

"We are traditionalists – we just want to be called bride and groom," said Bird, 25, who works part time for her father's church. "Those words have been used for generations and now they just changed them."
...

Bird and Codding have refused to complete the new [California marriage] forms, a stand that has already cost them. Because their marriage is not registered with the state, Bird cannot sign up for Codding's medical benefits or legally take his name. They are now exploring their options, she said.

Bird's father, Doug Bird, pastor of Roseville's Abundant Life Fellowship, said he is urging couples not to sign the new marriage forms, and that he is getting some support from congregants and colleagues at local churches.

In the article, Ms. Bird says her stance is "personal - not religious." The article does not state the couple's view of same-sex marriage, or whether they would be happy with different options on the forms. Naturally, though, conservative groups are seizing on their case:

"Those who support (same-sex marriage) say it has no impact on heterosexuals," said Brad Dacus of the Pacific Justice Institute. "This debunks that argument."

Well, so much for the argument that names don't matter. But if this is the best equality opponents can come up with, it's not very good.

One might compare this couple's situation to those of (a) the typical same-sex couple in 48 states, and (b) same-sex couples who, because one of them is transgendered and their transition is not recognized under state law, are legally regarded as an "opposite-sex" couple. Couple (a) is denied the rights, benefits, and/or legal title of marriage. Couple (b) is granted those rights and benefits, and that legal title, but at the cost of accepting the legal titles of "husband" and "wife," thus negating the authentic gender of one spouse. Couple (a) is simply shut out, while couple (b) faces a painful and undignified choice.

The choice faced by this couple is far less stark: the state will recognize them as a married couple, and as a woman and man respectively, but not as "Bride" and "Groom." Same-sex couples could raise the same complaint: the State's forms fail to recognize them as two "Brides" or two "Grooms." For that matter, the State's forms fail to recognize any other specific title for the spouses that may have religious, cultural or other personal significance. So I am disinclined to see a violation of any right here.

Nevertheless, it would not be hard for the State to provide check boxes for "Bride" and "Groom," so as to accommodate all combination; our online wedding registry at Target provided this option. There might be an argument that this constituted a symbolic segregation of couples by gender that produced the same harm as distinguishing between "marriage" and "civil union." However, the differing labels would have far less salience - we are essentially only talking about the marriage license paperwork itself, since "bride" and "groom" are not terms much used by law and government in any event - so I don't think I would find it nearly so troubling.

EDIT: Feministing calls bullshit.

Cal. AG's Prop 8 language upheld

The struggle over marriage equality in California continues to be an interesting one. There were the 2004 San Francisco marriages, and the court decision nullifying them. There was the long-running Marriage Cases, that concluded with a state supreme court protecting same-sex couple's right to marry. And since then, there's been litigation seeking to stop that ruling from going into effect; litigation trying to keep Proposition 8 (which would overturn Marriage Cases) off the ballot; and now, litigation over the official language for Prop 8.

The state's official summary for Prop 8, at the time it was first circulated to get it on the ballot, said that it "Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California." But last month, the AG published the official summary for the ballot states that Prop 8 "Changes the California Constitution to eliminate the right of same-sex couples to marry." Prop 8 supports sued, saying the summary was unfairly argumentative.

A superior court judge has now rejected that argument (PDF). The judge noted that state law creates a high standard for challenging prejudicial ballot language, and judges will normally defer to the Attorney General. The petitioners argued that the statements "(i) use a strongly negative, active tense verb to characterize the effect of the measure; and (ii) focus too narrowly on the measure's effect on same-sex couples." The court said pithily,

There is nothing inherently argumentative or prejudicial about transitive verbs, and the Court is not willing to fashion a rule that would require the Attorney General to engage in useless nominalization.

Nor is the Court persuaded that the Attorney General's title is argumentative because the term "eliminates" is "negative." It is noteworthy that the ballot title recommended by Petitioner in his moving papers – "Limit on Marriage" – also begins with a "negative" term. Petitioner has failed to explain why the term "eliminates" is inherently argumentative, while the term "limit" is not.

Next, the Court rejects Petitioner's argument that the title is argumentative because it states as fact that same-sex couples have a "right" to marry. This statement is not argumentative, prejudicial, or controversial, in light of the California Supreme Court's decision in the Marriage Cases, which recognized the right. This Court is bound to follow the Supreme Court's decision.

Finally, Petitioner argues that the title is argumentative because it is under-inclusive, focusing narrowly on one of the measure's "effects," rather than the measure's "purpose." However, this argument fails because the Attorney General is not required to distinguish between a measure's intended consequences (purpose) and its actual consequences (effects). Rather, the Attorney General's mandate is to state the chief "purpose and effect" of the measure.

On similar grounds, the court rejected arguments that the summary is misleading.

The court also rejected challenges to the sample arguments for the ballot. As to the opponents' argument's contentions about the affect on public school curricula, the court said:

There is at most a reasonable difference of opinion as to whether Proposition 8 will have any effect on what may or could be required teaching in schools. Further, under current California law, children cannot be required to attend any health-related instruction, including instruction on the subject of marriage, against their parents' will.

Petitioner's also said it was misleading to include the argument that marriage and domestic partnerships don't provide couples the same security. The court observed that this argument was essentially accepted by the supreme court in Marriage Cases.

This all seems pretty straightforward to me. Of course, the petitioners are right to be concerned that the new wording could bias voters against Prop 8; it seems obvious to me that the wording is a victory for Prop 8 opponents, because it focuses on the existing constitutional rights of same-sex couples. What seems critical to me is that the state law on ballot language does not prohibit language that might give some slight advantage to one side or another. Rather, it requires a high standard of blatant argument or inaccuracy, which is a far more workable standard. Since whether a particular framing of an issue favors one side or is simply more accurate is to some degree in the eye of the beholder, a high standard is needed to provide an administrable rule of law that won't mire judges in political disputes. The seemingly inevitable downside is that the AG will get mired in those disputes to some extent, and may give some slight (or at least perceived) advantage to one side.