In the NewsSpread the Word About the Justice For All Program! July 5, 2007. It is hard to believe, but school is just around the corner! If you are teaching the Justice For All educational curriculum, talk about the program with your fellow teachers and tell them to contact us at justiceforall@hrc.org or to visit our website. Yearly Round-Up: SCOTUS Decisions Indicate a Judiciary Less Friendly to GLBT Issues July 2, 2007. The Supreme Court has released all of its opinions for the October 2006 term. Although there were no cases that directly addressed GLBT rights, it is clear that the Court has shifted its direction away from many progressive causes. The progressive side was victorious in only one major case this term—an environmental case (Massachusetts v. EPA) that addressed the regulation of greenhouse gases. Although the Court has refused to reverse precedents outright, the Court has effectively overruled several of them in cases involving reproductive rights (Gonzales v. Carhart), employment law (Ledbetter v. Goodyear Tire), and election law (FEC v. Wisconsin Right to Life). It appears that Chief Justice Roberts and Justice Alito are committed to a solidly conservative ideology. GLBT groups should be concerned that the Court’s six-vote majorities in the landmark cases of Romer v. Evans and Lawrence v. Texas have likely been eroded down to only five votes: Justices Kennedy, Breyer, Souter, Ginsburg, and Stevens. Morse v. Frederick: A Real-World Application of the Justice For All Curriculum June 25, 2007. In Morse v. Frederick, a student was suspended from school for holding a banner saying “Bong Hits 4 Jesus” at an event. At issue were the First Amendment rights of students during school hours (but off school property). In Module Eight of the Justice For All curriculum, the suggested activity addresses the First Amendment concerns of a student that wears a T-shirt at school saying “God hates homosexuals.” This is just one more example of how the Justice For All curriculum can be used by teachers to inform their students on how the decisions made by the judiciary can affect their lives. For more information on Morse v. Frederick, click on the “Queer Eye for the Supreme Court” link in the Resources section of the Justice For All website. SCOTUS Issues Several Major Decisions But School Desegregation Cases Still Undecided June 25, 2007. The Supreme Court decided several cases that look concerning for the GLBT community, including FEC v. Wisconsin Right to Life, Hein v. Freedom from Religion Foundation, and Morse v. Frederick. More details will come on these decisions shortly. For more information on the impact of these cases, please visit the “Queer Eye for the Supreme Court” link in the Resources section of the Justice For All website. Federal Judge Receives Threats After Sentencing “Scooter” Libby to Prison June 20, 2007. U.S. District Judge for the District of Columbia Reggie B. Walton has received a number of disturbing letters and angry phone calls after sentencing I. Lewis “Scooter” Libby to prison. Walton opened a hearing discussing whether Libby’s two and one-half year sentence should be delayed with this news and stated that the threats would not affect his decision. Libby’s appellate team argued that Libby should not have to go to prison until his appeals are exhausted. Judge Walton stated that he was not inclined to grant Libby’s request but seriously doubted whether Libby would be made to report to prison early because Libby’s lawyers would engage in more legal maneuvering. The threats against Judge Walton have gone well beyond reasonable criticism. Judge Walton stated that the threats have made comments “wishing bad things on me and my family.” Judge Walton should be applauded for his courage to stand to his convictions and his commitment to justice in the face of threats against not only himself but the legitimacy of the judiciary. As SCOTUS Term Ends, Media Remarks on the Court’s Shift to the Right June 18, 2007. Articles from the New Yorker and MSNBC have discusses the impact of Chief Justice John Roberts and Justice Samuel Alito on the Court’s decisions. With the decision in the school integration cases still upcoming, we shall see if the Court has drastically shifted its course on another controversial issue as it did with respect to abortion in Gonzales v. Carhart. Both articles emphasize the growing importance of the 2008 election with the possible retirement of members of the progressive wing of the Supreme Court. SCOTUS Nears the End of the Term: Major Cases Still Await Decision June 18, 2007. The Supreme Court is continuing its flair for the dramatic in reserving its decisions in major cases to the end of its term. Among these cases are several decisions that may have some impact on the GLBT community, including FEC v. Wisconsin Right to Life (federal election law), Hein v. Freedom From Religion Foundation (standing for establishment clause challenge), Morse v. Frederick (public schools, First Amendment), and two school integration cases—Meredith v. Jefferson Co. Bd. of Educ. and Parents Involved in Comm. Schs. v. Seattle Sch. Dist. (equal protection, affirmative action). For more information on the cases, go to the resources section of Justice For All and check out “Queer Eye for the Supreme Court.” Senators Warner and Webb Offer Five Picks for Fourth Circuit to President Bush June 15, 2007. Senators John Warner and Jim Webb of Virginia have released their short-list of suggested nominees to the Fourth Circuit. On the list are: Virginia Supreme Court Justices G. Steven Agee and Donald Lemons; attorney Thomas Albro of Charlottesville; U.S. District Judge for the Western District of Virginia Glen Conrad; and University of Richmond law professor John Douglass. Despite their varied backgrounds, the five possible nominees do share one attribute—a relatively low profile. For several of the nominees, collecting information about their background and experience has proven difficult and even more difficult is determining how they would potentially address GLBT issues. It would appear that the Bush administration has shifted its approach in offering nominees with a lower profile in order to get them confirmed in a Senate with a Democratic majority. Justice Sandra Day O’Connor Criticizes Partisan Elections of Judges June 15, 2007. In an article in USA Today, former Supreme Court Justice Sandra Day O’Connor talks about renewing the faith of Americans in the judicial system. In particular, O’Connor attacks the current election of state judges, a system by which special interests contributions are allowed to influence the pursuit of justice. O’Connor states: "If there were one thing that I could wave a magic wand and accomplish…it would be to persuade states with partisan election of judges to go to…[an] appointment process.” Massachusetts Legislature Rejects Discriminatory Marriage Amendment June 14, 2007. The Massachusetts legislature voted against placing a discriminatory marriage amendment on the ballot in 2008 by a vote of 151-45. Under Massachusetts law, a voter initiative for a state constitutional amendment must first collect 3% of the number of individuals that voted for the previous election for Governor. Then, the initiative must win the support of 25% (or 50 out of 200) of state legislators in two consecutive legislatures. At that point, the initiative is placed on the ballot. Supporters of the discriminatory marriage amendment had collected enough signatures by petition to put the issue before the legislature. In January 2007, the amendment was supported by 61 legislators (132 opposed the measure). Having received 45 votes in today’s second legislative vote, the amendment has been killed. The discriminatory marriage amendment would have reversed the decision of the Supreme Judicial Court of Massachusetts in Goodridge v.Dep’t of Public Health, which required that Massachusetts provide marriage equality to its GLBT citizens. Justice For All applauds all of those individuals who took leadership roles to ensure the equality of GLBT citizens, especially Governor Deval Patrick, House Speaker Sal DiMasi and Senate President Therese Murray. Tick, Tock: The Southwick Saga Continues June 14, 2007. Once again, the Senate Judiciary Committee has postponed a vote on Fifth Circuit nominee Leslie Southwick. The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy (D-VT), agreed to hold over the vote on Southwick as a courtesy to ranking minority committee member Sen. Arlen Specter (R-PA). For more information on Judge Southwick, see the entry for May 11, 2007. In the meantime, opposition to Southwick continues to grow. The Fight for Marriage Equality Forty Years After Loving June 12, 2007. Forty years to this day, the Supreme Court issued its decision in Loving v. Virginia, the landmark marriage case which found anti-miscegenation laws unconstitutional. Mildred Jeter, an African-American and Cherokee woman and Richard Loving, a white man, were arrested upon returning to Virginia after getting married in another state that allowed interracial marriage. When the decision in Loving was made, 70 percent of voters opposed interracial marriage. Even in 2000, 40 percent of Alabama voters opposed removing the state’s unconstitutional anti-miscegenation law. The Loving case has been instrumental as the basis for claims for GLBT marriage equality over the years. In honor of Loving, we remember the Court’s words: The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men…To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law (citations omitted). Forty years later, the importance of the Loving decision remains fundamental to the GLBT community’s continued fight for marriage equality. The Loving case should remind the GLBT community of the importance of a fair and independent judiciary because Loving demonstrates the impact that one judge, one court, or one case can make on advancing the civil rights movement. Those words have not been lost on Mildred Loving, who endorsed equal marriage rights for same-sex couples in a speech marking the 40th anniversary of the Loving case: My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about. White House Creates Short-List for Possible Supreme Court Nominees June 1, 2007. ABC News reports that the White House is considering a small group of nominees if any members of the Supreme Court decide to retire after the end of the June term. The White House is not expecting any retirements this term, and the most likely candidates for retirement, Justices Ginsberg and Stevens, have both stated that they will not step down. Interestingly, only women or minorities are on the list, which includes: Fifth Circuit Judge Priscilla Owen; D.C. Circuit Judge Janice Rogers Brown; Seventh Circuit Judge Diane Sykes; Fifth Circuit Judge Edith Brown Clement, U.S. District Court (New York) Judge Loretta Preska, and Florida Supreme Court Judge Raoul Cantero. It is particularly concerning that the White House has decided to put Priscilla Owen and Janice Rodgers Brown back on its short-list considering that both nominees were at the center of the controversy surrounding the Senate Democrat filibuster of judicial nominees in 2005. The Supreme Court and the Alito Effect May 31, 2007. The Supreme Court’s 5-4 decision in Ledbetter v. Goodyear Tire has gotten organizations increasingly concerned about the “Alito Effect.” The Court’s decision in Ledbetter will have an enormous effect on employment discrimination in this country, placing women at a distinct disadvantage to remedy discriminatory pay decisions made by employers. President Ralph Neas of the People For the American Way Foundation stated in a press release: Today's ruling is just the latest sign of the Court’s rightward lurch following the replacement of moderate conservative Justice Sandra Day O’Connor with ultraconservative Justice Samuel Alito and the confirmation of John Roberts as Chief Justice. Congressional Update on Jurisdiction-Stripping Bills May 30, 2007. Jurisdiction-stripping, which is a term used when Congress limits the role of the federal courts by forbidding courts from hearing certain types of cases, has been on the rise over the past few years. Most of the jurisdiction-stripping bills that have been introduced in the 110th Congress jurisdiction have focused on two issues—immigration and national security. But three bills introduced in Congress earlier this term are attempts to strip the federal courts of jurisdiction to address matters affecting GLBT rights. On February 6, 2007, Rep. Daniel Lungren (R-CA) and sixteen co-sponsors introduced H.J. Res. 22—a constitutional amendment defining marriage as between one man and one woman and stripping courts of jurisdiction to address matters related to marriage. On January 30, 2007, Rep. Dan Burton (R-IN) and forty-seven co-sponsors introduced H.R. 724, the Marriage Protection Act of 2007, which would strip the federal courts of jurisdiction to address challenges to the Defense of Marriage Act. Both H.J. Res. 22 and H.R. 724 were referred to the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties on March 1, 2007. On January 5, 2007, Rep. Ron Paul (R-TX) and two co-sponsors introduced H.R. 300, the “We the People Act,” which would strip the federal courts of jurisdiction to address matters relating to sexual practices, sexual orientation, marriage, and reproduction. H.R. 300 was then referred to the House Judiciary Committee. Justice For All continues to oppose these bills and any other attempts by Congress to strip the federal courts of their power to perform their constitutional duty in addressing issues affecting GLBT civil rights. The 110th Congress may be more sympathetic to the cause of GLBT rights, but that does not mean that opposition has disappeared. Click here for a special report detailing similar attacks on the courts, provided by the Justice At Stake Campaign. New Jersey Supreme Court Guarded by Police Protection After Lewis v. Harris May 24, 2007. The Star-Ledger reports that the New Jersey Supreme Court has been under police protection since a “pro-white” radio host released their home addresses to the public during a broadcast. The newspaper states that the radio host, Hal Turner, once ran for Congress and now has an “audience of skinheads, neo-Nazis and Klansmen.” On his broadcast, Turner stated: I fully expect now that I gave out the home addresses and phone numbers of the New Jersey Supreme Court that I will have the New Jersey State Police here tomorrow again. Well, I'm not going to shut up. I am not going to stop putting these ideas in people's heads because violence solves everything. And if some very angry people were to go down to some of those judges' houses and tune them up, oh sure, they might get thrown in jail, but that would send a shockwave to the rest of those (expletive) in black robes that they can be gotten to…How many times you think you can bash someone in the head with a sledgehammer in two or three minutes? Sneak Preview of the October Term 2007 Supreme Court Docket May 22, 2007. The Supreme Court has nearly filled the first part of its October 2007 docket, and one interesting election law case that will be considered is Washington State Grange v. Washington Republican Party. In this case, the Washington state political parties are challenging the constitutionality of Initiative 872, which allows primary candidates to self-identify a party preference regardless of whether the party approves of that association. In Washington’s election system, all voters, regardless of their political party affiliations, can vote for any candidate appearing on the primary ballet regardless of the candidate’s affiliation, with each party’s candidate with the most votes moving on to the general election. The Ninth Circuit held that the initiative, passed by voters in 2004, violated the parties’ First Amendment (applied to the states through the Fourteenth Amendment) right to freedom of association. This case could affect GLBT voters because sometimes voters choose a candidate based solely upon party affiliation or at the very least make assumptions about that candidate’s views on matters of public concern based on their affiliation. For example, a self-proclaimed “Democrat” could have anti-GLBT rights sentiments, but an uneducated voter may assume that the candidate supports GLBT rights, believing that the candidate is approved or supported by the Democratic Party. The Supreme Court will return after summer recess to address this issue beginning with its next term in October 2007. Former Justice Sandra Day O’Connor Continues Fight for Judicial Independence May 21, 2007. Former Supreme Court Justice Sandra Day O’Connor announced on a “FOXNews Sunday Interview” that she is developing a website that will focus on teaching children about the court system and on repelling criticisms of the judiciary that go too far. In September 2006, Justices O’Connor and Breyer co-chaired a conference at Georgetown Law titled “Fair and Independent Courts: A Conference on the State of the Judiciary,” which focused on current attacks upon the judiciary. In February 2007, Georgetown University Law Center established the Sandra Day O’Connor Project on the State of the Judiciary. Media Speculates on a Possible “Race For the Exit” After the 2008 Election May 21, 2007. Eighteen months before the 2008 Presidential Election and the media and blogosphere are already heating up with speculation on what potential impact the next wave of Supreme Court retirements will have on the Court’s composition. Noting that the last four Presidents have each filled seats in pairs, Tom Goldstein on SCOTUSblog predicts the likely retirement of Justice Stevens soon after the 2008 election due to his advanced age, Justice Souter due to his desire to leave the Court, and possibly even Justice Ginsburg due to her questionable health issues. Jack Balkin, of the weblog Balkinization, predicts that the Court could undergo a constitutional transformation through a process that he calls “partisan entrenchment,” where a series of Presidents “stock the federal judiciary with like-minded jurists.” Justices Stevens, Souter, and Ginsburg all were instrumental to the pro-GLBT majority decisions in Romer v. Evans and Lawrence v. Texas. Supreme Court Certiorari Petition of Interest to the GLBT Community May 17, 2007. The Alan Morrison Supreme Court Assistance Project just released its summary of certiorari petitions of public interest. One notable petition that may affect the GLBT community is Gambla v. Woodson, which addresses an equal protection challenge where race is used as a basis for, or at least a factor in, making child custody determinations. It will be interesting to see if the Court will address this issue, especially if it gives insight into how it might address some states’ policies allowing sexual orientation and gender identity to be considered by state courts in making custody decisions. The Court has not made its decision whether to grant certiorari at this time, having issued a Call for Response. Strict Constructionists Favored Among Republican Nominees for Presidency May 15, 2007. The gloves came off last night in South Carolina during the second presidential debate for the Republican Party for the ten declared candidates. For the most part, the candidates have stated that they would support appointing “strict constructionists” to the federal bench. In February of this year, former New York Mayor Rudy Giuliani stated on the FoxNews program Hannity & Colmes that he was committed to appointing “strict constructionist[s]” to the federal bench. Although Giuliani may have used “strict construction[ism]” as politico-speak in reaching out to socially-conservative, anti-abortion, anti-gay rights voters, contradictions abound in trying to decipher what judicial candidates he would appoint. That same phrase was also used by President George W. Bush during the 2000 election campaign in defining the types of justices that he would nominate to the federal bench when he stated that he would appoint strict constructionist judges, similar to Justices Scalia and Thomas. Bush subsequently appointed John Roberts and Samuel Alito to the Supreme Court. Senator John McCain, former Massachusetts Governor Mitt Romney, and former Senator Fred Thompson have similarly declared their intent in picking far-right nominees for the Supreme Court. Click here for more explanation on the political meaning of a “strict constructionist.” Justice Scalia, the blueprint for the “strict constructionist” model as referenced by President Bush, has himself stated that “I am not a strict constructionist, and no one ought to be…” (from an essay in the book, A Matter of Interpretation). Oral Arguments Suggest a Divided Court in the Connecticut Marriage Equality Case May 14, 2007. The Connecticut Supreme Court held oral arguments today in Kerrigan & Mock v. Connecticut Dep’t of Public Health (see May 4th entry, below). The plaintiffs argued that, despite Connecticut offering civil unions, the denial of marriage to its GLBT residents constituted a denial of equal protection and due process under the Connecticut Constitution. The Court focused on two main issues: first, whether the plaintiffs were a suspect class, and second, whether exclusion from marriage should trigger strict scrutiny or rational basis review. Jane Rosenberg, the state’s assistant attorney general, argued that marriage equality was a matter of policy that should be left to the legislature to determine and, pointing to the civil unions law recently passed, said that the GLBT community was hardly politically powerless. Justice Palmer, who noted that African-Americans were still considered politically powerless in many cases of discrimination, then asked Ms. Rosenberg: “Is that your argument: Give them more time and they’ll do better?” “Yes,” Ms. Rosenberg replied. Noting the legislature’s inability to pass a marriage equality bill earlier that week, Justice Norcott said, “If they were doing better, they would have passed that bill.” The Connecticut Supreme Court’s decision will be heavily scrutinized in light of the Supreme Court of Massachusetts’ decision in Goodridge v. Dep’t of Public Health, which made it the first state in the country to require marriage equality. The Goodridge decision sparked a hailstorm of conservative criticism and opposition to so-called “activist judges,” culminating in renewed attempts at passing the Federal Marriage Amendment. Similar antagonistic rhetoric would likely resurface should the Connecticut Supreme Court rule in favor of marriage equality. It is the hope of all Americans who support civil rights that the Connecticut Supreme Court, as well as the high courts of Maryland and California also considering marriage equality, exercise its independent judgment and dedicate itself to making a fair and balanced decision regardless of whether there may be conservative backlash in the media and to be reminded of the words of former Chief Justice William Rehnquist in his 2004 year-end report on the federal judiciary: [J]udges were severely criticized 50 years ago for their unpopular, some might say activist, decisions in the desegregation cases, but those actions are now an admired chapter in our national history. We encourage the Connecticut Supreme Court to be part of the next “admired chapter” of our nation’s history when making their decision. U.S. Senate Scrutinizing Southwick Nomination to the Fifth Circuit May 11, 2007. The Senate began confirmation hearings for Judge Leslie H. Southwick to the United States Court of Appeals for the Fifth Circuit. The former Mississippi Court of Appeals judge has taken the place of Charles Pickering and Michael Wallace, who both were nominated to the same seat but had their nominations withdrawn due to their controversial views or lack of qualifications. Judge Southwick was questioned regarding a homophobic concurrence he joined in which the opinion stated that it was entirely appropriate to consider sexual orientation as the sole basis upon which to make custody determinations. This approach clearly lies in opposition to the near-unanimous approach by many state courts, which generally only consider the best interests of the child. Such a homophobic stance shows that the U.S. Senate would be justified in taking its time to consider whether Judge Southwick has made an enduring commitment to the civil rights of all Americans. His judicial record clearly shows otherwise. Sen. Brownback Finally Stops Blocking the Confirmation of Janet Neff… May 10, 2007. Judge Janet Neff was nominated to the District Court for the Western District of Michigan once again, but during her confirmation rehearing, Sen. Sam Brownback (R-KS) continued his crusade against the Michigan Court of Appeals judge. Sen. Brownback previously blocked Judge Neff’s confirmation in March 2006 because she attended the 2002 same-sex commitment ceremony of a friend. After demanding in December 2006 that Judge Neff recuse herself from any cases involving same-sex unions, Sen. Brownback announced that he would again ask Judge Neff about her involvement in the ceremony and her views on same-sex marriage. Many years ago, noted African-American Judge Leon Higginbotham was asked to recuse himself in a civil rights case. Judge Higginbotham responded: I concede that I am black. I do not apologize for that obvious fact. I take rational pride in my heritage, just like most other ethnics take pride in theirs. However, that one is black does not mean, ipso facto, that he is anti-white; no more than being Jewish implies being anti-Catholic, or being Catholic implies being anti-Protestant… … It would be a tragic day for the nation and the judiciary if a myopic vision of the judge’s role should prevail, a vision that required judges to refrain from participating in their churches, in their non-political community affairs, in their universities. Since this time, the Senator has finally allowed the Neff confirmation vote to proceed unblocked. This raises an obvious question—to what degree should a judge’s personal life matter when being considered for the federal bench? Hopefully, this long drawn-out affair will remind Congress in the future that it is not acceptable to block confirmation hearings just because a judge has a GLBT friend or family member. Having gay friends or a gay family member has not been disqualifying for numerous political figures running for office, including Vice President Dick Cheney or former House Leader Dick Gephardt. Connecticut Supreme Court to Hear Marriage Equality Case May 4, 2007. The Connecticut Supreme Court announced that it will hear oral arguments on May 14, 2007 in a case challenging the state’s ban on marriage for same-sex couples. The highest state courts of Maryland, California, and Connecticut are all now considering cases involving the issue of marriage equality. A Connecticut appellate court previously rejected the plaintiff’s claims that the denial of marriage equality to GLBT couples violates the state’s guarantees of equal protection and due process. The case comes at a time when the Connecticut House Judiciary Committee recently voted 27-15 to grant marriage equality to same-sex couples, but Republican Governor Jodi Rell has threatened to veto any marriage equality legislation that is passed, stating that Connecticut’s civil unions bill has settled this issue. Such an action would mirror the decision by Governor Arnold Schwarzenegger to veto a bill granting marriage to same-sex couples back in 2005. Connecticut joins California as the only two states to pass legislative votes in support of marriage for same-sex couples without court intervention. The California Supreme Court has not yet set a date for oral argument. The Maryland Court of Appeals heard oral arguments on December 4, 2006. Decisions in all three cases are expected sometime later this year or in early 2008. Click here to find out more on Kerrigan & Mock v. CT Dept. of Public Health, under consideration by the Connecticut Supreme Court; click here to find out more on Deane & Polyak v. Conaway, under consideration by the Maryland Court of Appeals; or click here to find out more on In re Marriage Cases, under consideration by the California Supreme Court. United States House of Representatives Passes Hate Crimes Bill May 3, 2007. By a vote of 237-180 and with significant bipartisan support, the U.S. House of Representatives voted today to pass the Local Law Enforcement Hate Crimes Prevention Act. Introduced by Rep. John Conyers (D-MI) and Rep. Mark Kirk (R-IL), the law would allow the federal government to support local communities in the investigation and prosecution of hate crimes. Approximately 1 in 6 hate crimes are motivated by the victim’s sexual orientation, and that percentage has been increasing in recent years. Hate crimes legislation has the support of over 73% of the public and is expected to receive the support of both houses of Congress, yet President George W. Bush has sent signals that he may veto the bill if it is brought to his desk. The Senate is currently considering its companion bill to the LLEHCPA, which was recently renamed the Matthew Shepard Act in honor of hate crime victim Matthew Shepard who died in Laramie, Wyoming over eight years ago. The Matthew Shepard Act has received bipartisan support and is sponsored by Sen. Ted Kennedy (D-MA) and Sen. Gordon Smith (R-OR). Click here to find out more about the Local Law Enforcement Hate Crimes Prevention Act. State Attorney General Decides that Rhode Island Will Recognize Out-of-State Same-Sex Marriages February 21, 2007. Attorney General Patrick Lynch issued his opinion stating that same-sex marriages performed in Massachusetts would be recognized in Rhode Island. Lynch stated that Rhode Island would recognize any marriage performed out-of-state so long as the marriage was not against the strong public policy of the state. In making his decision, Lynch recognized that the state’s policy against discrimination on the basis of sexual orientation, the state’s support for same-sex adoption, and de facto parental status of same-sex non-biological partners show that recognizing these out-of-state marriages would not be against the strong public policy interests of Rhode Island. Click here if you would like to read the Attorney General’s opinion. Michigan Appellate Court Bans Domestic Partnership Benefits for Public Employees Under State Constitutional Amendment Banning Marriage Equality February 2, 2007. The Michigan Court of Appeals ruled that the state’s constitutional ban against marriage for same-sex couples bars state and local governments and public schools and universities from offering domestic partner benefits to same-sex couples. The court concluded that the state’s marriage amendment, which makes the marriage of an opposite-sex couple “the only agreement recognized as a marriage or similar union for any purpose,” prevents public employers from granting benefits to the domestic partners of their employees because doing so constitutes state recognition of domestic partnerships, a union similar to marriage. The decision may be appealed to the Michigan Supreme Court. The Michigan Court of Appeals decision is just one example of the unintended consequences of passing a state constitutional amendment banning marriage for same-sex couples. Several lower courts in Ohio have interpreted its state constitutional marriage amendment as invalidating the application of domestic violence laws to unmarried couples. This interpretation was upheld by an Ohio appellate court in May 2006. In State of Ohio v. Shaffer, the court noted it was unlikely that this was an “intended result of the Defense of Marriage Amendment. However, we felt constrained to apply the amended provision of the Ohio Constitution as written…” (citations omitted). The Ohio Supreme Court has granted appeal due to widespread conflict in its state courts. Similarly, Utah has encountered difficulties with its state marriage amendment. The unintended consequences of passing state constitutional amendments banning marriage for same-sex couples could potentially be enormous: the amendment could drastically change custody, adoption, and foster care laws; damage the reputation of institutions of higher learning; lead to diminished business investment and impair business competitiveness; intrude on medical decision-making within families; and harm options available to senior citizens who rely on government benefits. These unintended consequences were of such concern that they led Indiana legislators to reject a state constitutional amendment banning same-sex marriage later in 2007. Click here to find out more on National Pride at Work. v. Granholm and click here to read the Michigan Court of Appeals decision. New Jersey Legislators Pass and Governor Jon Corzine Signs Civil Unions Bill December 21, 2006. One week after New Jersey legislators passed, by a wide margin, legislation that would establish civil unions for same-sex couples, Governor Jon S. Corzine signed the bill, making New Jersey the third state to establish civil unions once the law goes into effect on February 19, 2007. New Jersey legislators passed the law in response to the New Jersey Supreme Court’s decision in Lewis v. Harris, which stated that barring marriage for same-sex couples violated the state’s constitution and required that the state grant marriage or a “parallel statutory structure” for same-sex couples. The law will in effect grant the same rights, privileges, and responsibilities to civil unions as are given to marriages in state matters, but it will not be recognized with respect to federal matters. Of course, the relative haste in which the bill was passed will probably result in a few legal complications. Within a couple weeks of passage, New Jersey’s Attorney General has already needed to issue clarifications on the civil unions law—ones that should continue to be scrutinized in the future. As a reminder, those couples intending to get out-of-state civil unions but who live in a state that does not recognize them should realize that your civil union will likely not provide any legal protections in your resident state. If you are seeking legal protections for your GLBT relationship or family that you believe would be provided by a civil union, please contact an attorney with experience in LGBT issues in your state of residence. Click here for answers to FAQ on the New Jersey civil union law. If you would like to read the text of the bill, click here. South Dakota Voters Overwhelmingly Reject Amendment to Establish Grand Jury Evaluations of Civil Lawsuits Involving Judges November 7, 2006. A South Dakota state amendment that would have resulted in grand jury oversight of judicial decisions in civil cases was soundly defeated, 89% to 11%, by the state’s voters. Also known as the “JAIL” amendment, the “judicial accountability initiative law” would have eliminated judicial immunity and undermined judicial legal determinations if it had passed. Citizen-policing initiatives such as JAIL have garnered some momentum over the past few years as some politicians have bemoaned the rise of what they refer to as “activist judges.” What was most remarkable about the JAIL amendment was not, however, the voting results, but the involvement of former Supreme Court Justice Sandra Day O’Connor and Eleventh Circuit Judge William Pryor in a heated war of words splashed across the op-ed pages of the Wall Street Journal. Former Justice O’Connor noted the rising wave of attacks on the judiciary as aspiring to “judicial intimidation,” not only by JAIL, but also by Congress. O’Connor points to Congressional efforts to forbid justices from considering foreign law in their constitutional decision-making, Congressional bills in both houses that would create an inspector general to monitor the judiciary, and legislation that would ban federal consideration of the constitutionality of “under God” in the Pledge of Allegiance. O’Connor notes that “[d]irecting anger toward judges enjoys a long—if not exactly venerable—tradition in our nation.” Judge Pryor’s three-pronged response is of surprisingly low merit. In fact, he makes, not three arguments, but only one in different rhetoric supporting his concept of judicial restraint. Pryor first states that “[c]ontemporary criticisms are relatively mild” when compared to those of the civil rights era. Perhaps Pryor is correct, but let us not forget that District Judge John E. Jones required protection by federal marshals after his decision in December 2005 on intelligent design; District Judge James Whittemore needed federal marshals to protect him and his family after his decision in the Terry Schiavo case; or District Judge Joan Lefkow returned to her Chicago home to find her mother and husband murdered by a disgruntled plaintiff in one of her cases. In reference to the Supreme Court’s decisions such as Plessy v. Ferguson and Korematsu v. United States, Pryor notes that the “judiciary has rendered unjust decisions that deserved harsh rebuke.” Although those decisions were truly repugnant, let us not forget that those decisions were made for the purpose of allowing the continuing specter of discrimination and that such rebuke was only garnered many years later. Never has such rebuke continued indefinitely after a Court decision to protect a group from discrimination or to grant equality for others, despite the decision being unpopular at the time. And finally, in stating that “[j]udges must do more than respond to criticisms; we must exercise restraint,” Pryor quotes Alexander Hamilton in Federalist Paper No. 78, stating that courts have “neither FORCE nor WILL, but merely judgment.” In response to Pryor, it should be noted that Hamilton continues after the above quote in the very next paragraph: …the judiciary is beyond comparison the weakest of the three departments of power; that it can Supreme Court of New Jersey Holds that State’s Constitution Requires State to Provide Gay and Lesbian Couples All Rights, Privileges and Obligations Awarded to Married Heterosexual Couples October 25, 2006. New Jersey’s highest court unanimously held that, within 180 days, New Jersey’s legislature either needed to amend state marriage statutes to include gay and lesbian couples or construct a “parallel statutory structure” that would provide equal benefits and obligations. In Lewis v. Harris, seven gay and lesbian couples filed suit in New Jersey Superior Court after being denied marriage licenses. The couples argued that the state’s marriage statutes—restricting marriage to one man and one woman—violated their liberty and their equal protection rights under New Jersey’s constitution. Both the Superior Court and the Appellate Court found that the marriage statutes did not violate New Jersey’s constitution; however, the New Jersey Supreme Court overruled, holding that although the constitution does not provide a fundamental right for gay and lesbian couples to marry, it does require that New Jersey provide same-sex couples all of the rights, privileges and obligations awarded to married heterosexual couples. But the court also decided, by a vote of 4 to 3, that the New Jersey constitution does not require that the state provide full marriage equality. In doing so, the court narrowly rejected the appellee’s argument that same-sex couples have a fundamental right to marry, stating that there is no historical or traditional support for same-sex marriage. The dissenting opinion on the marriage issue, in no uncertain terms, strongly criticized the majority decision for using this standard, noting that such logic would run counter to the Supreme Court’s 1967 decision outlawing Virginia’s anti-miscegenation statute in Loving v. Virginia. American courts have a long history or arguing that “history” and “tradition” act as sufficient reasons for their continuing support for the status quo. Unfortunately, this plainly and unabashedly circular reasoning is nearly indefensible against even the most logical of arguments for social change. It is regrettable that courts continue to couch these public policy judgments as political cover by making thinly veiled demands that any such change, such as gay marriage, have widespread popular approval—lest they be attacked politically and given the moniker of an “activist judge.”1 Click here to find out more about the case or here if you want to read the court’s decision in Lewis v. Harris. 1 For a more complete argument on this subject, see Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 Colum. L. Rev. 1955, 1984 & n.122 (2006). Washington State Supreme Court Denies Marriage Equality under State Constitution. July 26, 2006. The Washington Supreme Court upheld the state’s so-called “Defense of Marriage Act,” which bars same-sex couples from marriage, overturning a trial court decision in favor of extending the freedom to marry to same-sex couples. The court rejected the plaintiffs’ arguments that the law violated the equal protection and due process provisions of the Washington Constitution. The court rebuffed the trial court’s conclusion that differential treatment of same-sex couples should be subject to heightened scrutiny, instead analyzing the discriminatory marriage law under rational basis review. The court deferred to the state’s asserted interest in encouraging procreation within marriage as a justification for the law excluding same-sex couples. New York Court of Appeals Reverses Trial Court Decision Granting Marriage Equality under State Constitution July 6, 2006. The Court of Appeals of New York upheld an intermediate appellate court’s ruling rejecting a challenge to the state’s denial of marriage licenses to same-sex couples. In a 4-2 ruling, the court concluded that the denial of marriage licenses to same-sex couples did not violate the due process or equal protection provisions of the New York Constitution and deferred to the state Legislature as to whether the marriage laws should be extended to same-sex couples. The court reiterated that classifications based on sexual orientation are not reviewed with strict scrutiny but under the rational basis test. The court reasoned that the New York Legislature could have had numerous legitimate bases for limiting marriage to opposite-sex couples, including promoting stability in procreative opposite-sex relationships, which are “all too often casual or temporary.” Click here to find out more about the case or here if you want to read the court’s decision in Hernandez v. Robles. |
