Archive | Sexual Orientation

“The Most Significant Cases These Nine Justices Have Ever Considered”

Tom Goldstein at SCOTUSBlog presents the matter succinctly:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

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Winning Minnesota

Most of the post-election attention to the gay-marriage ballot fights has focused on the inspiring wins in Maine, Maryland, and Washington state, where same-sex marriages will now be legal.  But equally important in the long-term is what happened in Minnesota on Tuesday.  Eighteen months ago, when the state legislature voted to place a ban on same-sex marriages on the ballot, I wrote that “on November 6, 2012, Minnesota will become the first state to reject one of these amendments.”  Many people (myself included) were skeptical of that prediction.  It was more a hope than a forecast. Until midnight or so last night, I still doubted we’d win.  Losing Minnesota, for me and for my family and friends, would be a punch to the gut even harder than losing California.

In 30 states, same-sex marriage had never won a popular referendum.  Minnesota is reliably blue, but is more socially conservative than people realize.  The state GOP had taken both the state senate and house in 2010, which is what permitted the issue to go to the ballot.  Minnesota is more religious, with a higher percentage of weekly churchgoers, than places like Maine and California.  It’s in the middle of the country, not on one of the coasts.  In 2006, neighboring Wisconsin had approved a broader amendment by 59%-41%.  Polls on gay-marriage amendments had always been notoriously unreliable, underestimating opposition by an average of seven percent. The public polls never showed us beyond that error rate.  Opponents had a devastating, if misleading and exaggerated, message about how gay marriage would mean the loss of religious freedom, kids would be “taught gay marriage,” judicial activists would impose their will, and family structure would unravel. Somehow all of this would be caused by the marriages of people like two of my best friends, [...]

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The Second Circuit’s DOMA Decision

At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional.  The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA:

Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.

UPDATE:  Ed Whelan argues that the analysis of the First Circuit in Massachusetts v. Dep’t of HHS would also result in the invalidation of state laws confining marriage to opposite=sex couples.


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Second Circuit Strikes Down DOMA Section 3

In a 2-1 opinion by Chief Judge Dennis Jacobs, a conservative appointed by the first President Bush, the Second Circuit has joined the unanimous chorus of federal courts striking down Section 3 of the Defense of Marriage Act, which bars federal recognition of same-sex marriages legalized by individual states.  The dissenter was Judge Chester Straub, who was appointed by President Clinton.  Applying intermediate scrutiny to sexual-orientation classifications, the court held that Section 3 violates the Equal Protection Clause.  The decision comes as the Supreme Court is weighing whether to grant certiorari to determine the constitutionality of the Act.  I may have more to say after I’ve had a chance to read the opinion. 

HT: David Lat and Walter Olson. [...]

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Case Alleging Discrimination Against Straight Car Renters May Go Forward

So holds Evenchik v. Avis Rent a Car Systems, LLC (S.D. Cal. Sept. 17, 2012):

According to the Complaint, Plaintiff rented a car from AVIS in July 2011, in the County of San Diego, California. She was charged $311.36. According to the Complaint, at that time AVIS gave large price discounts to members of two groups: the International Gay and Lesbian Travel Association and the National Gay and Lesbian Chamber of Commerce. Plaintiff is not a member of either group. The Complaint further alleges that AVIS did not give her the gay and lesbian group member price discount. Plaintiff alleges that California’s Unruh Civil Rights Act … prohibits a business from discriminating between its customers on the basis of sexual orientation….

Plaintiff plausibly alleges that during the transaction AVIS charged her a higher price to rent a car because AVIS did not perceive her to be a lesbian or gay customer or because AVIS did not perceive her to be associated with favored lesbian or gay customer groups….

AVIS asserts throughout its briefs that the purpose of California’s Unruh Civil Rights Act is (to use AVIS’s words): “to prevent unequal treatment for disadvantaged classes of people who have been the subject of invidious discrimination.” Neither the language of the statute nor the case law speak of protecting disadvantaged classes. Instead, the Act seeks to prevent any discrimination among people on the basis of listed characteristics. Thus, because the Act prohibits discrimination on the basis of sex, for example, it prohibits business from charging men more than women for the same services. See Koire, 40 Cal.3d at 32….

Another thread of argument runs through AVIS’s briefs: … since Plaintiff could have become a member of the International Gay and Lesbian Travel Association or the National Gay and Lesbian Chamber

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Constitutional Law Professors: 87% Support Same-Sex Marriage, But Only 54% Believe It Is Constitutionally Mandated

Eighty-seven percent of constitutional law professors back marriage for same-sex couples, and 7 out of 10 believe the federal Defense of Marriage Act is unconstitutional, but only a slight majority of 54% think the federal Constitution requires states to recognize same-sex marriages. That’s the result of a survey of 485 constitutional law professors that I conducted this summer with the help of my indefatigable and indispensable research assistant, Minnesota 2L Samuel Light. In this post, I want to highlight some of the main results from the survey.

The survey was prompted by a comment from a pro-SSM law professor that the constitutional debate on the issue among scholars was over.  According to him, there was no remaining doubt among specialists that recognition of SSM is required by the Constitution. I suspected this claim was too strong.  Despite a common criticism, many constitutional law professors pride themselves on being able to separate their policy preferences from their constitutional views.  (Whether they succeed in doing so is a different question.)  So I wanted to test the hypothesis that the matter of same-sex marriage has been settled by asking professors themselves.

The survey was also prompted by the progress of some major cases challenging anti-SSM laws.  One of the cases challenges California’s Prop 8; others take on the Defense of Marriage Act. These cases are teed up to reach the United States Supreme Court in the 2012 Term.  (The Court will consider whether to take the Prop 8 case and at least one of the DOMA cases at its September 24 conference.)  The cases don’t necessarily call for a comprehensive answer to the question whether there is a constitutional right to same-sex marriage, but that large question will definitely be in the background. 

The views of constitutional law professors do not determine [...]

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Federal Judge in Hawaii Rejects Same-Sex Marriage Claim

In Hawaii, gay couples may enter civil unions with all the state-based rights and legal protections of marriage, but without the official designation of being “married.”  Same-sex couples sued to have the status of marriage, urging that they had a fundamental right to marry under the Due Process Clause and that the state could not discriminate against them under the Equal Protection Clause.  Last week, a federal district court in Hawaii denied their claims.  In a lengthy opinion in Jackson v. Abercrombie, Judge Alan C. Kay rejected the lawsuit on the grounds that he had no choice to do otherwise under binding Supreme Court precedent and that, even if he did, the plaintiffs’ claims failed on the merits.  The judge argued that the Ninth Circuit’s decision striking down Prop 8 in Perry v. Brown was distinguishable because, as Judge Reinhardt ruled, the Perry case involved only the narrow circumstances where a state has granted marriage to same-sex couples and then taken it away.  Hawaii, on the other hand, is a state where couples never had the right to marry.

Judge Kay, who was appointed by President Reagan, opened his opinion with the familar admonition that courts must restrain themselves when ruling on constitutional issues. He first concluded that the whole constitutional question of same-sex marriage was actually decided in 1971 by the Supreme Court in a memorandum opinion in Baker v. Nelson.   That case involved an appeal from a Minnesota Supreme Court decision — the first in American history — rejecting a claim for same-sex marriage.  The Court summarily dismissed the appeal “for want of a substantial federal question.”  Judge Kay argued that this constituted binding precedent on the lower federal courts in same-sex marriage cases and that he therefore had no power to accept the plaintiffs’ claims.  [...]

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Law Professor Calls for Denying Tax Exemptions to the Catholic Church, Orthodox Synagogues, and Other Groups That Discriminate Based on Sex

See Caroline Mala Corbin, Expanding the Bob Jones Compromise, in Matters of Faith: Religious Experiences and Legal Responses in the United States (forthcoming, Cambridge University Press). This isn’t the first such call, but it still struck me as noteworthy. Indeed, the rationale — that exemptions are generally denied to racially discrimination groups, so they should also be denied to groups that discriminate based on sex (for instance, in choice of clergy) — suggests that similar arguments would likely be made in the future as to groups that exclude gays and lesbians from the ministry as well. And conversely the argument that sex orientation discrimination is just like race discrimination, if accepted, will strengthen the appeal of the arguments that sex discrimination is like race discrimination, too, and should be just as marginalized as race discrimination even in matters such as the selection of priests and rabbis.

I should note that I don’t think such a denial of tax exemptions to sex-discriminatory groups — if applied generally to all groups, religious and secular — would be unconstitutional; see Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919 (2006). Just as the government may deny tax exemptions to groups that engage in First-Amendment-protected electioneering, and substantial amounts of First-Amendment-protected lobbying, and just as it may deny funding for constitutionally protected abortions and access to government property for constitutionally protected abortions, so it may deny tax exemptions to groups that engage in discrimination that’s protected under the First Amendment’s religious association or expressive association protections.

But I think such proposals are bad policy, and are contrary to the worthy American tradition of religious pluralism and tolerance. When the government (federal, state, and local) spends over 1/3 of the gross domestic product, and when tax exemptions [...]

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When In Doubt, Do Right

Today the President of the United States explicitly endorsed the idea that gay couples and their families should have the freedom to marry.  He had already done so as a practical matter by refusing to defend the constitutionality of what he carefully mislabelled the “Defense Against Marriage Act” and by publicly opposing state constitutional amendments against marriage.  But in the past he had said he personally opposed gay marriage because “God is in the mix.”  Jon Rauch has some thoughts about the Obama evolution toward support:

What happened? Harry Truman was fond of quoting Mark Twain: “When in doubt, do right. This will gratify some people and astonish the rest.” Now and then, politicians have a “goddammit” moment. Obama’s position had clearly shifted on the issue (who was he kidding with his talk of having “evolved” but being unwilling to make news?), and there was never going to be a better time to make the switch than now–at least not while he is certain to be a non-lame-duck president.

So Obama decided it’s worth a roll of the dice to make history. Which is what he has done.

As of his announcement, favoring gay marriage is now fully, indisputably, and permanently a mainstream political position. All hint of weirdness or stigma is gone. It is also now the stated position of one of the two major political parties (only 16 years after President Bill Clinton, a Democrat, signed the anti-gay-marriage Defense of Marriage Act). Precisely because the issue is unlikely to decide the election this year, November’s result will not revoke the issue’s promotion in status even if Obama loses. Though gay couples have not achieved full legal equality, gay marriage, as an issue, has achieved full political equality. That is a landmark in the ongoing marriage debate.

Rauch goes [...]

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Higher Registration Requirements for Male Sex Offenders Who Committed the Offense Against a Male Victim

803 Code Mass. Regs. § 1.40(9)(c)(2) provides that, in determining a sex offender’s likelihood of recidivism — which in turn bears on what sort of registration requirements apply to the sex offender — one factor should be whether the offender is a “male offender who commits a sex offense, as defined in M.G.L. c. 6, § 178C, against a male victim. This demonstrates the degree of sexual deviance associated with this offender (Hanson & Bussiere, 1998; Hanson & Bussiere, 1996; Freund & Watson, 1991).” Doe v. Sex Offender Registry Board (Mass. 2008) upheld this against an Equal Protection Clause challenge (paragraph break added):

In determining the plaintiff’s likelihood of recidivism and degree of dangerousness, the hearing examiner also considered the fact that the plaintiff’s victim was a male. Title 803 Code Mass. Regs. § 1.40(9)(c)(2) advises that among the elements to consider in assessing the nature of a particular sex offense is whether the offense was committed by a male offender on a male victim. The plaintiff claims that the hearing examiner’s application of this regulation to his case penalized him for being homosexual in violation of his equal protection rights. This claim has no merit.

The equal protection analysis under both the State and Federal Constitutions is the rational basis test. The challenged regulation was drawn from findings of sex offender experts (as cited in the regulation) in order to assist the board in determining more accurately a sex offender’s risk to reoffend and level of dangerousness. Prefatory language to the regulation explains: “Much can be learned about an offender by studying the nature of the offenses he has committed…. Based on its review of the research, the [b]oard found the presence of deviant sexual interests dramatically increases the risk of reoffending and that the strongest deviant sexual interests

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California Bill Would Ban Psychotherapy Aimed at Changing Under-18-Year-Olds’ Same-Sex “Desires, Attraction, or Conduct”

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds. [...]

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Speaking Engagements This Week

This week I’ll be discussing my new book, Flagrant Conduct: The Story of Lawrence v. Texas, at two different venues. On Thursday, the Charles Hamilton Houston Institute for Race & Justice will sponsor a speech at Harvard Law School from 5:30-7:00 p.m. Details are available here

On Friday evening at 7:00 p.m., I’ll be speaking in Washington, D.C. at the bookstore Politics & Prose.  Andrew Sullivan will offer commentary.  Details about that event are available here. [...]

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Anti-“Harassment” Order Based on Letters to Employer Alleging a Catholic School Teacher Was Gay

I’m writing an article on the First Amendment, criminal harassment law, and the constitutional distinction between speech said to a particular objecting person and speech said to the public; and in the process, I ran across this 2001 case that I thought I’d mention, since it could equally come up today.

Minnesota law provides, in relevant part,

“Harassment” includes: … repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another ….

The court may grant a restraining order ordering [a person] to cease or avoid the harassment of another person or to have no contact with that person if … the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment….

A first-offense violation of the restraining order is generally both a misdemeanor and punishable as contempt of court, but when a person “knowingly violates the order … because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability …, age, or national origin,” the violation is a felony.

Now note that the statute isn’t limited to traditional telephone harassment or stalking that only involves unwanted speech to the target. It potentially also includes unwanted speech about the target, so long as it is “repeated” and “[has] a substantial adverse effect or [is] intended to have a substantial adverse effect on the safety, security, or privacy” of the target. This means the law potentially cuts off not just speech to one unwilling listener (or a few unwilling listeners), but also speech to willing listeners as well. The Minnesota courts have read the statute as covering two categories of unprotected speech — “‘fighting [...]

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May “Jesus Is Not a Homophobe” T-Shirt Be Banned from Public High School as “Indecent” and “Sexual”?

That’s what the Wayne (Ohio) Local School District Board of Education apparently believes. Waynesville High School Principal Randy Gebhardt barred high school student Maverick Couch from wearing this T-shirt, and when his action was challenged, the school district lawyer responded:

It is the position of Wayne Local School District Board of Education that the message communicated by the student’s T-shirt was sexual in nature and therefore indecent and inappropriate in a school setting.

The lawyer cited Bethel School Dist. No. 403 v. Fraser (1986) as support for the proposition that the speech may be banned. But Fraser, which involved sexual innuendo in a speech to a student assembly, hardly suggested that all speech on political and religious questions related to sexuality and sexual orientation could be banned from public high schools. (The other case that the lawyer cited, Pyle v. South Hadley School Committee (D. Mass. 1994), also involved vulgarity and sexual innuendo.)

Indeed, even Morse v. Frederick (2007) acknowledged that Fraser “should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.” This is precisely what’s at issue here: religious speech that is perceived as offensive to some. That the speech deals with how people should view gays and lesbians surely does not strip it of protection.

To be sure, even political speech could be restricted under Tinker v. Des Moines Indep. School Dist. (1969) if it seems likely to materially disrupt the work of the school, for instance by triggering fights and the like. But the school district doesn’t even claim that any such disruption has happened, or that there was evidence that it would be likely to happen. (At most, it says that there was [...]

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NYT Sunday Book Review of “Flagrant Conduct”

In today’s Times Book Review section, Pulitzer-Prize-winning historian David Oshinsky reviews my new book, Flagrant Conduct: The Story of Lawrence v. Texas.  I promise not to make a habit of posting these notices, but I’m quite honored by his review, as I have been by several other recent reactions to the book. [...]

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