Law Extends Parental Rights for Gays
Lesbians in the District no longer will need the written consent of their partners to adopt children born to their partners through artificial insemination, under a new law that took effect Saturday.
The name of a consenting spouse or unmarried partner will appear on the child’s birth certificate as the legal parent, a status that previously had to be obtained by same-sex parents through a complicated adoption process.
The Domestic Partnership Judicial Determination Parentage Act of 2009 puts the city out front when it comes to children born of same-sex parents, according to the National Center for Lesbian Rights (NCLR), the Gay and Lesbian Activists Alliance of Washington (GLAA) and American University law professor Nancy Polikoff.
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Same-Sex Unions Supplant Abortion As Social Priority for Conservatives In Fight Over High Court Pick
As President Obama prepares to name his first Supreme Court justice, conservatives in Washington are making clear that his nominee will face plenty of questions during the confirmation process on the legal underpinnings of same-sex marriage.
In addition to shedding more light on the nation’s most contentious unfolding social drama and legal frontier, Senate Republicans say the debate could provide a road map to an Obama nominee’s judicial philosophy.
“It may reflect the degree to which they think that they’re not bound by the classical meaning of the Constitution, and that they may want to let a personal agenda go beyond what the law said,” said Sen. Jeff Sessions (Ala.), the senior Republican on the Senate Judiciary Committee.
Questions on social issues in confirmation hearings have tended for the past 30 years to focus squarely on abortion, with partisans from both sides poring over a nominee’s writings and rulings and presidents typically denying that any “litmus test” was employed in the selection.
Same-sex marriage carries the same freighted potential to dominate a hearing, conservatives say.
“It is now the flash point where politics and law meet. That flash point used to be abortion. I don’t think anybody thinks that’s going to be the flash point in this nomination,” said William A. Jacobson, a Cornell University law professor and conservative blogger.
Sen. Orrin G. Hatch (Utah), another GOP member of the Judiciary Committee, said conservatives are particularly eager to avoid a Supreme Court ruling akin to the 1973 Roe v. Wade decision, which legalized abortion nationwide and has divided the country ever since. “I don’t think members of the court, or any of us, ever want to see a decision like that again,” Hatch said. Obama assured the senator in a recent meeting that he will not pick a “radical” to replace Souter, but Hatch added: “Presidents always say that. That’s why we have the hearing process.”
Same-sex marriage gained national resonance in the wake of last month’s Iowa Supreme Court ruling that legalized the practice in that state. And in the two weeks since Justice David H. Souter announced his retirement, Maine also legalized same-sex marriage, becoming the fifth state to do so; the New Hampshire legislature sent a marriage-equality bill to the governor; the New York State Assembly approved gay-marriage legislation; and the District of Columbia voted to recognize same-sex marriages performed elsewhere.
Those actions, in so short a time, have outstripped the ability of Democrats in Washington to stake out their public position on the issue. MORE at Washington Post
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Exemption for Religious Foes Of Gay Marriage Debated
As a growing number of states legalize same-sex marriage, there is growing attention on exemptions for religious institutions and individuals who find the concept morally objectionable and religiously untenable. This week, New Hampshire Gov. John Lynch (D) said he would sign legislation to make his state the sixth to legalize gay marriage if the legislature ensured religious protections.
Vermont and Connecticut have enacted laws that exempt clergy from performing same-sex marriages and give religious groups the right to refuse their facilities for same-sex marriage celebrations and allow them to refuse to provide insurance benefits to same-sex partners.
With those exemptions, said George Washington University constitutional law professor Ira Lupu on the legal blog Concurring Opinions, “religious conservatives and secular progressives now have the opportunity to reach political bargains.”
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A first gay justice?
President Barack Obama is looking to advance diversity with his pick to replace retiring Supreme Court Justice David Souter — and early speculation has focused on whether he’ll pick a woman, or perhaps the first Hispanic justice.
But gay rights groups — disappointed that Obama didn’t pick an openly gay man or woman for his Cabinet — are pushing him to put the first openly gay justice on the Supreme Court.
Within hours of word of Souter’s departure, the Gay and Lesbian Victory Fund was hailing the candidacy of a First Amendment scholar and former dean of Stanford Law School, Kathleen Sullivan. “Out lesbian a contender for Supreme Court,” one of the group’s web sites declared.
Another Stanford law professor on the “frequently mentioned” lists, Pam Karlan, has been open about being a lesbian, colleagues and former students say. In response to an e-mail from POLITICO, Karlan expressed no reticence about discussing her sexual orientation, though she downplayed talk about being a possible nominee.
“It’s no secret at all that I’m counted among the LGBT crowd,” she wrote, using a common acronym for the lesbian, gay, bisexual and transgendered community. As for the possibility she’d be nominated, Karlan said, “Given the landscape, I’m flattered, but not fooled, by having my name tossed around.”
Unrelatedly, a rave for Karlan as “(1) brilliant, (2) broadly knowledgeable — Cass Sunstein aside, I can’t think of anyone who knows so much about so many different legal fields — and (3) a spectacularly gifted writer” from a right-leaning Harvard Law professor, William Stuntz.
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Gay, married and outlawed
The questions and answers volleyed back and forth last week during the California Supreme Court’s televised proceedings on Prop 8, the state’s recently enacted ban against gay marriage.
And in a dark classroom at Chapman University, watching it all with a focused intensity, was law student Tiffany Chang.
In Chang’s view, the discussion was riveting. Did Prop. 8 simply “take away the label of marriage,” as one justice put it? Chang has heard all of the arguments, including those that say that same sex couples enjoy domestic partnership rights in California, so why insist on the designation of “marriage.”
You could say there was twice as much at stake for Chang, who tracks the legal debate for reasons both scholarly and personal.
Two years ago, in front of friends and family in Long Beach, Chang and her partner Lindsey Etheridge exchanged marriage vows in an unofficial, non-legally binding ceremony. Then, exactly a year later, on July 14, 2008, during the short window when same-sex marriages were legal here in California, Chang and Etheridge filed for “official marriage paperwork.” Then they married in a legal ceremony.
Chang says the event was life changing.
“We were in the clerk’s office and there were people there we don’t know, but they represented the government, validating our relationship,” says Chang, 28. “After it was all done, that sense of security, it was tenfold at least.
“I never could have known what that felt like, to truly be equal in our society,” she adds. “I don’t think you know what that feels like until you’ve got it.”
Chang was part of a “friend of the court” brief filed with the state’s Supreme Court in support of those who have legally challenged Prop. 8. And, in her declaration, she elaborated that on the day “I walked out with my head held higher than I thought was even possible.”
The brief was drafted by attorneys Katherine Baird Darmer and Ronald Steiner, who are also law professors at Chapman, and includes declarations from other people connected to Chapman, as well as from members of the Orange County Equality Coalition, a community group that says it educates and advocates for marriage equality in California.
For Chang, Prop. 8 isn’t just a matter of nomenclature; it’s a matter of denying a minority group the rights afforded to all others. Since the law passed in November, Chang has been speaking out in public. She says she’s come to realize that until a person is treated like a second-class citizen it’s difficult for them to understand what it’s like to be on the other side.
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Gay, married and outlawed
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California Supreme Court to discuss Proposition 8 in televised session Los Angeles Times -
The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations around the state.
By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes results in changes to the draft ruling, but rarely do they change the majority position. The ruling is due in 90 days.
Most legal analysts expect that the court will garner enough votes to uphold existing marriages but not enough to overturn Proposition 8. The dissenters in May’s 4-3 marriage ruling said the decision should be left to the voters.
One conservative constitutional scholar has said that the court could both affirm its historic May 15 ruling giving gays equality and uphold Proposition 8 by requiring the state to use a term other than “marriage” and apply it to all couples, gay and straight.
“The alternatives are for the court to accept Proposition 8 and authorize the people to rewrite the Constitution in a way that undermines a basic principle of equality,” said Pepperdine law professor Douglas Kmiec. If the court overturns Proposition 8, “that is the short course toward impeachment.”
The court is under intense pressure. Opponents of gay marriage have threatened to mount a campaign to boot justices who vote to overturn the initiative. The last time voters ousted state high court justices was in 1986, when then-Chief Justice Rose Bird and two colleagues lost a retention election.
On the other side, the Legislature has passed two resolutions opposing Proposition 8, and demonstrations and vigils are being planned statewide to urge the court to throw out the measure.
Thousands are expected to descend Thursday on the San Francisco Civic Center to watch the hearing live on a giant outdoor screen, just steps from the courtroom where the justices will be prodding lawyers in a jammed courtroom. SeeCalifornia Supreme Court to discuss Proposition 8 in televised session
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America’s top civil rights groups and legal scholars agree: Invalidate Prop 8
(San Francisco, CA, January 21, 2009) In the last round of an expedited briefing schedule, final briefs were filed today by both petitioners and respondents in the lawsuits challenging Proposition 8. The briefs filed today by the National Center for Lesbian Rights, Lambda Legal, and the ACLU responded to the more than 60 amicus curiae, or “friend of the court,” briefs filed in the case last week.
Those amicus briefs highlight the extraordinary breadth of support for Petitioners’ argument that Proposition 8 is invalid. The supporters represent the full gamut of California’s and the nation’s civil rights organizations and legal scholars, as well as California legislators, local governments, bar associations, business interests, labor unions, and religious groups.
In amicus briefs filed last Thursday, the nation’s leading legal scholars argued that Proposition 8 is invalid because it seeks to eliminate a fundamental right only for a targeted minority, which cannot be done through the initiative process. Professors from the most prominent universities and law schools in California and the country authored briefs urging the Court to invalidate Proposition 8, including scholars from Harvard University, Stanford University, Yale University, University of California (Berkeley, Los Angeles, Hastings, Davis, Irvine), University of Southern California, University of Pennsylvania, Rutgers University, University of San Francisco, Loyola Law School, Santa Clara Law School, Chapman University, and Pepperdine University.
A brief authored by Hastings Law Professor Donna Ryu and joined by 20 constitutional law experts, argued: “Proposition 8 represents the first time that the California initiative process has been wielded to abolish a fundamental freedom for an unpopular minority group and to alter the Constitution so as to mandate governmental discrimination against that group. In this way, Proposition 8 attempts to breach some of the most elemental textual and structural promises of our state Constitution. It revokes a fundamental right that, in the words of the Constitution, is “inalienable.” It dismantles constitutional equality for a single group of Californians – a group that, because of its history of oppression and stigma, is entitled to the highest level of constitutional protection against discrimination.”
Another brief authored by Professor Karl Manheim, one of the foremost authorities on California’s initiative process, stated: “Proposition 8 . . . improperly attempts to revise the Constitution by taking the unprecedented step of singling out a suspect class and depriving that class – and only that class – of a fundamental right.”
On January 15, 2009, 43 friend-of-the-court briefs urging the Court to invalidate Prop 8 were filed, arguing that Proposition 8 drastically alters the equal protection guarantee in California’s Constitution, and that the rights of a minority cannot be eliminated by a simple majority vote.
Other briefs supporting the legal challenge to Prop 8 were filed on behalf of 652 current and former California legislators; dozens of bar associations, legal aid organizations; and numerous California municipal governments.
In May of 2008, the California Supreme Court held that laws that treat people differently based on their sexual orientation violate the equal protection clause of the California Constitution and that same-sex couples have the same fundamental right to marry as other Californians. Proposition 8 eliminated this fundamental right only for same-sex couples. No other initiative has ever successfully changed the California Constitution to take away a right only from a targeted minority group. Proposition 8 passed by a bare 52 percent on November 4.
The National Center for Lesbian Rights, Lambda Legal, and the ACLU filed this challenge on November 5, representing Equality California, whose members include many same-sex couples who married between June 16 and November 4, 2008, and six same-sex couples who want to marry in California. The California Supreme Court has also agreed to hear two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney. These three cases are jointly under review by the California Supreme Court.
Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick, Herrington & Sutcliffe LLP.
On November 19, 2008, the California Supreme Court granted review in the legal challenges to Proposition 8, and established an expedited briefing schedule, under which briefing was completed on January 21, 2009. The California Supreme Court has stated that it may schedule oral argument as early as March 2009.
The case is Strauss et al. v. Horton et al. (
S168047).
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Iowa high court to hear gay-marriage case
ES MOINES — The Iowa Supreme Court will hear oral arguments Tuesday in a pivotal same-sex marriage case that could echo throughout the nation and be far more difficult to challenge at the ballot box than a high-profile ruling in California, legal experts say.
The lawsuit, filed by six same-sex Iowa couples, pits gay rights supporters against those who argue that gay marriage threatens traditional family values.
The case, Varnum v. Brien, could make Iowa the first state in the Midwest to legalize gay marriage, says University of Iowa law professor Angela Onwuachi-Willig. Other high-court decisions favorable to gay rights advocates have come from traditionally liberal, coastal states: California, Massachusetts and Connecticut.
The hearing comes little more than a month after California voters approved Proposition 8, a measure that limited marriage to a man and woman in the state constitution.
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