LESBIAN/GAY LAW NOTES October 2011 201

9th CIRCUIT AFFIRMS STATUS QUO INJUNCTION ON ARIZONA PARTNER BENEFITS

In Diaz v. Brewer, 2011 WL 3890755 court found also that the injunction was not do so in an arbitrary or discriminatory (Sept. 6, 2011), the U.S. Court of Appeals justified because the plaintiffs had “estab- manner that adversely affects particular for the Ninth Circuit affirmed the district lished a likelihood of irreparable harm in groups that may be unpopular.” court’s grant of a preliminary injunction the event coverage for partners ceased.” The court of appeals compared the Ari- blocking implementation of an Arizona Each of the plaintiffs convincingly alleged zona law to the restrictive food stamp law law that would have repealed health care that if their partners lost coverage, they at issue in U.S. Department of Agriculture benefits for the same-sex domestic partners would suffer irreparable harm because they v. Moreno, 413 U.S. 528 (1973). That law of state employees. The ruling forces Ari- suffered conditions making them uninsur- restricted food stamp eligibility to house- zona to continue providing the benefit until able, and that interruption of treatment or holds in which all the adults were related to the underlying legal question — the con- medication would be severely detrimental. each other. The goal was to bar “communes” stitutionality of repealing the benefits — is Defendants argued that the law fur- of unrelated adults (and it was understood resolved on the merits. Circuit Judge Mary thered the interest of saving state resources, at the time to be an “anti-hippie” law). Ap- Schroeder wrote for the court. but plaintiffs presented evidence that “the plying rational basis review, the court re- Arizona first extended health benefits entire state expenditure for domestic part- jected the government’s asserted interests to same-sex domestic partners of state em- ner benefits represented a tiny fraction of in the law to “prevent fraud” due to the rela- ployees when it expanded the definition of the total employee healthcare benefits.” The tive instability of these households. The Su- “dependents” in 2008 by amending its ad- defendants on the other hand provided “no preme Court rejected those arguments and ministrative code. In 2009, however, fol- information…as to the number of same- held that the law was without any rational lowing enactment of a state constitutional sex domestic partners participating in the basis since, in practice, it would allow those amendment banning same-sex marriages, state health plan, nor the total claims of people with the financial means to struc- Governor Janice Brewer signed House Bill same-sex domestic partners.” So, the dis- ture their families in accordance with the 2013 into law, which contained a statu- trict court rejected this argument by de- law to obtain the benefits and discriminate tory provision that redefined “dependents” fendants, and defendants did not seriously against those without the means, and had to exclude domestic partners of either sex. challenge it on appeal. nothing to do with advancing the purposes That law would have gone into effect on Defendants also argued that barring of the food stamp law, which were to assist January 1, 2011, but it was temporarily en- same-sex domestic partners from state em- the poor in obtaining adequate nutrition joined by the district court in response to ployee health benefits served the important while providing additional market demand the filing of a lawsuit by a group of gay and interest of promoting marriage. The district for American agricultural products. lesbian state employees against the gover- court rejected this argument as well, point- By comparison, the court pointed out, nor and two other state officials charged ing out that denying benefits to people who the Arizona law was even more discrimina- with implementation of the law, in their cannot marry in the first place does nothing tory than Moreno. At least under the food official capacities. Upon rejection of the to promote marriage. stamp law it was theoretically possible to state’s motion to dismiss, the court prelimi- Applying rational basis review, the court alter one’s living situation to protect eligi- narily enjoined implementation of the law of appeals held that the law violated the bility. In the issue at hand, however, same- pending trial on the merits. Equal Protection Clause of the Fourteenth sex couples were barred from marriage In issuing the injunction, District Judge Amendment. While the law was not dis- under Arizona law, and so couldn’t change John W. Sedwick found that plaintiffs had criminatory on its face (it affected both their status even if they wanted to. demonstrated a likelihood of success on same-sex and opposite-sex domestic part- The court also discussed the impact the the merits based on two points. First: “The ners of state employees), it had a discrimi- loss of benefits would have on the domestic law adversely affected a classification of natory effect because same-sex couples partners of these gay and lesbian state em- employees on the basis of sexual orienta- under Arizona law could not retain their ployees. The same-sex partner of one plain- tion” without “further[ing] any of the state’s health coverage by getting married. “When tiff “would not be able to secure a health claimed justifiable interests.” The district a state chooses to provide…benefits, it may plan with equivalent coverage” because

LESBIAN/GAY LAW NOTES October 2011

Editor: Prof. Arthur S. Leonard, New York Law School, 185 W. Broadway, NY, NY 10013, 212-431-2156; e-mail: [email protected] or arthur.leonard@ nyls.edu Contributing Writers: Bryan Johnson, Esq., New York City; Daniel Redman, Esq., San Francisco; Brad Snyder, Esq., New York City; Eric Wursthorn, Esq., New York City; Kelly Garner, New York Law School ’12; Stephen E. Woods, Esq., New York City. Circulation: Administrator, LEGAL, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: [email protected]. Inquire for rates. LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.nyls.edu/jac ©2011 by the LeGaL Foundation of the LGBT Law Association of Greater New York ISSN 8755-9021 202 October 2011 LESBIAN/GAY LAW NOTES her chronic asthma made her uninsurable LESBIAN/GAY LEGAL for implementation, leaving open the pos- on the private market. Another plaintiff ’s NEWS AND NOTES sibility that the process of implementation partner was also barred from private insur- could drag on for a long time (even though ance because of pre-existing conditions, in- 9th Circuit Panel Vacates Log President Obama had announced in his cluding diabetes and high cholesterol. The Cabin Republican DADT Decision State of the Union Address in January that likelihood of plaintiffs suffering irreparable as Moot he anticipated implementation would be harm weighed in favor of granting injunc- achieved during 2011). The court refused tive relief. A three-judge panel of the U.S. Court of to put the case “on hold” and directed the In all, the court held that the district Appeals for the 9th Circuit, based in San parties to submit their briefs. court ruling was consistent with the long- Francisco, ruled per curiam on September Thus began the arguments, stretching standing equal protection rule — articu- 29 that the implementation of the Don’t over the ensuing months, about whether lated in Moreno — that “a bare…desire to Ask Don’t Tell Repeal Act of 2010 on Sep- it was appropriate for the court to stay its harm a politically unpopular group [is] not tember 20, 2011, put an end to the “case hand or proceed in the normal course to [a] legitimate state interest[].” or controversy” raised many years ago when determine the cross-appeals on the merits. On September 29, 2011, the state peti- Log Cabin Republicans (LCR) sued the LCR had appealed the district court’s de- tioned the Ninth Circuit to hear the case federal government for a judicial declara- cision to dismiss its equal protection chal- en banc and overturn the district court’s tion that the Don’t Ask Don’t Tell policy lenge, while the government was appealing preliminary injunction. Governor Brewer was unconstitutional and for an injunction her decision that DADT violated due pro- told the Arizona Republic : “This issue isn’t against its enforcement. As such, ruled cess and freedom of speech. The govern- about whether the state should provide the panel, the case is “moot,” depriving the ment argued that with the signing of the health benefits to domestic partners… It’s court of appeals of jurisdiction to determine Repeal Act, the issue whether the original about whether the duly elected officials of the government’s appeal of District Judge DADT policy was constitutional was no a state maintain strict authority over its Virginia Phillips’ order of a year ago, which longer in play; instead, argued the Justice finances or whether that control will be had ruled that the anti-gay military policy Department, the issue was whether the ceded to a court bent on installing a social violated the 5th and 1st Amendments of mechanism adopted by Congress for repeal, agenda.” The status of the petition was not the Constitution. Log Cabin Republicans v. keeping DADT in place until the relevant known at the time of publication. United States, 2011 WL 4494225. LCR’s officials certified to Congress their- readi Tara Borelli of Lambda Legal repre- attorney promptly announced that a peti- ness to end the policy, was constitutional. sents the plaintiffs and Charles A. Grube, tion for en banc review would be filed. When it appeared in mid-July that the Deputy State Attorney General, Phoenix, The status of Judge Phillips’ decision necessary certification for implementation Arizona, represents the defendants. Daniel has been a much-contested issue ever since of the Repeal Act was imminent, the court Redman Congress passed and President Obama actually briefly lifted the stay on Judge [Editor’s Note: Surprisingly, the 9th signed the Repeal Act last December 22. Phillips’ injunction, but it was promptly Circuit’s opinion quotes the district court’s Under the Repeal Act, the DADT policy restored upon urgent motion by the gov- finding that the statute offends the 14th would end if certain conditions were met. ernment, which argued that the Repeal Act Amendment equal protection clause be- First, the President and Secretary of De- provided for an orderly process of imple- cause of its “discriminatory effect” without fense had to consider the recommendations mentation that could be upset by an abrupt any discussion of why this case would con- of a Task Force that the Secretary had ap- mandate to end the policy. stitute an exception to the general rule that pointed earlier in 2010 to examine the is- Finally, after the necessary officials had the “disparate impact” theory developed sues raised by ending the policy, and then certified that implementation should take under federal discrimination statutes does the President, the Secretary, and the Chair- place and a target date was fixed as -Sep not apply in constitutional cases, absent a man of the Joint Chiefs of Staff would have tember 20, 2011, the argument of moot- showing that a facially neutral policy hav- to certify that all necessary steps had been ness took on immediate salience. The court ing a discriminatory effect was adopted for taken to make it possible to end the policy heard oral arguments on September 1. discriminatory purposes or implemented without harming the effectiveness of the LCR insisted that even if implementation in a discriminatory way. Perhaps the court military in carrying out its mission. occurred on September 20, the question considered that when viewed against the After Judge Phillips filed her amended whether the DADT policy was constitu- background of adoption of the anti-same- opinion last October, the government tional remained significant for several rea- sex marriage constitutional amendment, sought a stay of her injunction against the sons. The Repeal Act merely authorized re- the statute was clearly intended to revoke policy pending an appeal, which the 9th scission of the DADT policy, but provided and prevent benefits coverage for same-sex Circuit granted. Then, as briefing and -ar no affirmative authorization for gay people couples, and thus could be shown to have gument deadlines loomed early in 2011, to serve in the military, in essence throwing been enacted with the requisite discrimi- the government moved to put the case “on the policy issues back to the Defense De- natory intent to support a constitutional hold” while the process of implementing partment and, more generally, the Execu- claim, even though it also terminates ben- the Repeal Act took place. Dan Woods tive Branch. Repeal of the statutory policy efits for different-sex couples. A.S.L.] of White & Case, counsel for Log Cabin would not by itself prevent the Defense Republicans, pointed out to the court that Department from adopting a new service the Repeal Act did not specify a target date ban, similar to the policies adopted admin- LESBIAN/GAY LAW NOTES October 2011 203 istratively prior to the passage of DADT may its members or anyone else. We vacate Lawrence as being mere rhetoric, in light of in 1993. Also, in default of a precedential the district court’s judgment, injunction, their characterization of the way that the ruling on constitutionality, Congress and opinions, orders, and factual findings — in- Supreme Court ultimately disposed of the President could subsequently re-enact deed, all of its past rulings — to clear the sodomy law challenge. (The “history and DADT. Furthermore, there are various path completely for any future litigation. tradition” requirement and the insistence other cases and claims related to injuries Those now-void legal rulings and factual upon narrow particularity in describing the suffered by individuals due to the DADT findings have no precedential, preclusive, right at issue seems inconsistent with many policy that are pending in the courts or that or binding effect. The repeal of Don’t Ask, important Supreme Court rulings finding could be brought, as to which the consti- Don’t Tell provides Log Cabin with all it long-established discriminatory or intru- tutionality of the policy is a salient issue. sought and may have had standing to ob- sive government policies to be unconstitu- LCR argued that these considerations kept tain. (We assume without deciding that tional.) the issue alive for appeal. Log Cabin had standing to seek a decla- Furthermore, as the Republicans who But the government persuaded the court ration that section 654 is unconstitutional are now vying for the presidential nomina- otherwise, by pointing to several very clear and an injunction barring the United States tion insist that DADT should be reinstated, Supreme Court precedents. It seems very from applying it to Log Cabin’s members. the question whether the policy was consti- well established in federal law, or at least See Arizonans for Official English, 520 U.S. tutional is not really just academic at this the court persuasively explains it to be so, at 66-67 (court may assume without decid- point. Dan Woods will seek en banc review that if Congress repeals a statute that is the ing that standing exists in order to analyze of the panel’s dismissal decision. A.S.L. subject of constitutional challenge, a law- mootness).) Because the case is moot and suit filed to have the statute declared un- the United States may not challenge fur- Father Loses Bid to Overturn constitutional is moot, and a declaration of ther the district court’s rulings and find- Custody Order in Favor of His unconstitutional from a district court as to ings, giving those rulings and findings any “Adulterous Homosexual” Ex-Wife which appeal is pending is also rendered effect would wrongly harm the United moot. The court pointed out that LCR’s States.” On September 21, 2011, the Court of Ap- standing as a plaintiff — much contested One member of the panel was clearly peals of Arkansas largely affirmed a trial and still contested by the government — disappointed at not having the opportunity court decision which granted primary was, if anything, limited to seeking a decla- to take on and repudiate Judge Phillips’ use custody of two teenage children to their ration that the policy was unconstitutional of Lawrence v. Texas in her decision to sub- mother, who had begun a new relationship and an injunction against its enforcement. ject DADT to “heightened scrutiny” and with another woman before her divorce be- Now that the policy has been repealed, an to declare it unconstitutional in the face of came final.Bamburg v. Bamburg, 2011 Ark. injunction against its enforcement would prior 9th Circuit rulings upholding it. Cir- App. 546. While the trial court ordered be meaningless as, in effect, it no longer ex- cuit Judge Diarmuid F. O’Scannlain wrote both parents to refrain from cohabitating ists. The court deemed it purely speculative a lengthy concurring opinion -- which, in with sexual partners prior to a new mar- that a future Congress would re-enact it, light of the panel’s finding that the case riage while the children were present in the pointing out that the hypothetical prospect is moot, must be considered to be purely home, neither party appealed that aspect of swift re-enactment was speculative. dicta -- strenuously arguing that Lawrence of the decision. The only modification to Furthermore, said the panel, because v. Texas was irrelevant and did nothing to the underlying decision concerned an un- the government had appealed promptly change the Supreme Court’s “established” remarkable financial distribution made by and had never abandoned its position that approach to determining whether a chal- the trial court. the policy was constitutional and that the lenge law is in violation of the due process Bob and Lisa Bamburg were married district court’s decision was wrong on the clause. Conservative federal circuit judges in 1988 and separated sometime in 2009. merit, it was not enough to declare the is- have continued to cling to the Supreme They had two children during the course sue moot and just dismiss the appeal. The Court’s pre-Lawrence ruling, Washington v. of their marriage: a sixteen year old teen- court found that this would be unfair to Glucksberg, 521 U.S. 702, 720 (1997), as re- age daughter, EB, and a fifteen year old son, the government, which had been deprived quiring that a right be “deeply rooted in our JB, who is “severely autistic.” Both parents of its chance at appellate vindication of history and tradition” in order that a law played an active role in the children’s lives, its defense. Thus, the panel decided that abridging that right be subject to height- but Lisa “took the primary role in day-to- the appropriate course was to vacate Judge ened scrutiny. Those courts point out that day activities for them.” Bob is an attorney Phillips’ decision and return the case to the in Lawrence the Supreme Court struck and Lisa owns a small gift shop which was district court with directions to dismiss the down the Texas sodomy law as lacking any open two months a year. She also occasion- case as moot, thus effectively wiping Judge rational justification, and did not state that ally did some contract work on the side, but Phillips’ decision off the books. it was applying heightened scrutiny, so that her notable income came from her owner- The court decisively declared that the any attempt to use Lawrence as a basis to ship interest in a family business which ex- district court’s decision is thus a complete apply heightened scrutiny in a due process isted prior to the marriage. nullity: challenge to an anti-gay government policy At the hearing before the trial court, “Because Log Cabin has stated its in- is illegitimate. Such judges normally ignore Lisa routinely lied about the nature of tention to use the district court’s judgment Justice Kennedy’s statements discounting her relationship with Mary Alice, another collaterally, we will be clear: It may not. Nor the importance of “history and tradition” in woman who had been friends with both 204 October 2011 LESBIAN/GAY LAW NOTES parties during their marriage. At the last a romantic partner to the children, in the 2011). In the opinion, written by Judge hearing before the trial court, Lisa finally present case, that fact alone does not negate Frank A. Pfiffner, the court held that the admitted to her relationship with Mary Al- the fact that [Lisa] has been the primary Tax Exemption violates the Alaska Consti- ice, stating that it began in the summer of caregiver of the children from the date of tution’s Equal Protection Clause on its face 2009. Her explanation for lying about the birth to the present time.” Lisa was award- by granting tax benefits based upon a mari- relationship was that she was waiting to tell ed primary custody of the children, and tal classification. As the Marriage Amend- her daughter first. both parties were ordered to refrain from ment to the state’s constitution recognizes Although Mary Alice did not live with having romantic partners from staying only those marriages between a man and a Lisa and the children, she did spend a lot of overnight so long as they were not married woman, the court held that the marital clas- time with them, spent nights at their home when the children were present, at home or sification in the Tax Exemption constitutes and traveled with them. At the conclusion on vacation. Bob was awarded liberal visita- unlawful sexual orientation discrimination. of the trial court hearing, the judge “told tion, and ordered to pay child support and The Tax Exemption allows disabled vet- the parties that Mary Alice was not to ‘be maintain health insurance. erans and persons over the age of sixty-five around’ the children.” However, Mary Alice As for the marital funds that Lisa spent to exclude the first $150,000 of the assessed kept in touch with the children despite not on Mary Alice, the judge awarded Bob re- value of their residence from their real physically seeing them. She explained that imbursement of $2,500 because while he property taxes. If an otherwise eligible per- she thought that “it was okay” to do so. couldn’t prove the total amount he claimed son is cohabiting with someone to whom The testimony established that Lisa “was Lisa spent, some trips and entertainment they are not married, then that person can a steady, balanced person” and that JB “was were undeniable. Otherwise, Bob was only be granted a tax exemption for the demonstratively secure with his mother.” awarded $8,864.80 in attorney fees, argu- value of the residence proportionate to his EB testified that JB’s behavior and respon- ing that, inter alia, Lisa’s lies about her rela- or her interest in the property. In contrast, siveness deteriorated when they stayed at tionship with Mary Alice caused unneces- a married person who is eligible to receive their father’s house for a few days and that sary litigation. the exemption can exclude the total value of their father was “very strict.” On appeal, Bob claimed that granting their residence (up to the stated $150,000). As for Lisa’s new relationship, Bob ex- Lisa primary custody was erroneous and The exemption applies even if the residence pressed his “strong reservations about Lisa against the children’s best interest because is solely in the name of the eligible person’s having custody of their children because Lisa “is an adulterous liar who disobeys spouse. Due to the Marriage Amendment Lisa was in an adulterous homosexual re- court orders and is a ‘friend’ instead of a to the Alaska Constitution, cohabiting lationship.” He was also bothered by the parent.” The appellate court rejected this same-sex couples do not have the option to fact that Mary Alice spent the night at argument, noting that the trial court clearly marry and thus cannot receive the full ex- Lisa’s while the children were present. He addressed Bob’s concerns about the chil- emption available to married couples. claimed that this was “a sign of poor judg- dren’s exposure to unmarried cohabitation Three same-sex couples brought this ac- ment and morals”, and that Lisa and Mary with a romantic partner by ordering that tion against the state and the Municipality Alice’s relationship was “detrimental to neither parent have overnight visits by ro- of Anchorage, asserting that they received the children’s welfare and embarrassing for mantic partners. Otherwise, the appellate fewer benefits under the Tax Exemption them.” Unsurprisingly, he also didn’t like court largely affirmed the trial court’s fi- than they are otherwise qualified to - re the fact that Lisa had removed pictures of nancial distributions with one small excep- ceive, only because they are not married. Of him from the marital home, and put up pic- tion. Eric J. Wursthorn. the three couples included in the suit, one tures of her and Mary Alice. [Editor’s Note: Although the court’s couple currently cannot receive any benefit Otherwise, the couple had numerous restriction on both parents having a non- under the Tax Exemption. Although the financial disputes concerning the distribu- marital romantic partner stay overnight couple shares a condominium, the prop- tion of their marital property. Notably, Bob when the children are present sounds even- erty is under the name of the non-eligible wanted reimbursement for any monies Lisa handed, it is ultimately discriminatory in partner. Since the couple is not married, spent on Mary Alice, which Bob estimated that Arkansas does not allow or recognize the eligible partner cannot exclude the resi- was approximately $24,000, which he cal- same-sex marriages.] dence from his property taxes since he has culated based upon “things that [he] kn[e] no interest in the property. In their suit, the w were not expenses for [him] and were not Alaska Court Rules That Tax plaintiffs argued that the Tax Exemption expenses on behalf of the kids.” Exemption Unconstitutionally denies them equal protection under the law, At the conclusion of the hearing, the Discriminates Against Same-Sex discriminates based on sex and impedes on trial judge issued an order which awarded Couples their right to privacy. The court declined to the divorce to Bob against Lisa. The trial address the sex discrimination and privacy judge concluded that both Bob and Lisa The Superior Court of Alaska for the Third claims, and focused solely on the equal pro- were “good and loving parents” and that District recently granted summary judg- tection claim. their approaches were not contrary to the ment on behalf of three same-sex couples In its decision, the Superior Court re- children’s best interests. who brought a suit challenging the con- lied heavily on the Alaska Supreme Court’s Of Lisa’s relationship to Mary Alice, stitutionality of an Alaskan real property holding in American Civil Liberties Union the trial judge stated that “[a]lthough the tax exemption (“Tax Exemption”). Schmidt v. State, 122 P.3d 781 (2005). In that case, Court does not condone [Lisa] introducing v. State, No. 3AN-10-9519 CI (Sept. 19, the court held that a state employment LESBIAN/GAY LAW NOTES October 2011 205 benefits plan that did not offer domestic tion. The court rejects the state’s argument assisting senior citizens and disabled veter- partners the same benefits available to mar- that the term spouse is only used in an im- ans financially. While the court agrees with ried couples violated the state constitution’s plementing regulation, not in the statute it- the state that assisting these groups is a Equal Protection Clause. As the classifica- self, and should be read separately from the legitimate government objective, the court tion here is “constitutionally similar to the Tax Exemption. Judge Pfiffner stated that finds that excluding cohabiting same-sex employment benefits scheme challenged here it is “appropriate to read the statute in couples from the exemption does not in any in ACLU,” Judge Pfiffner concludes that combination with the implementing regu- way further this interest. The state argues “the Tax Exemption is similarly unconsti- lation,” and therefore the marital classifica- that any greater benefit the plaintiffs would tutional.” tion contained in the regulation should be receive under the full exception, as granted In defense of the statute, the state ar- understood as creating this classification to marriage couples, would be minimal. gued that the Marriage Amendment to the within the statute. Judge Pfiffner states that this reasoning, Alaska Constitution precludes the court The State also argued that only a stat- however, better supports the plaintiffs’ as- from considering the plaintiffs’ equal pro- ute that under no set of circumstances can sertion that the Tax Exemption does little tection claim. The court rejects this - argu be applied constitutionally can be found to to further the state’s interest in financially ment because the Marriage Amendment be facially discriminatory, and that the Tax assisting seniors and disabled veterans. If only defines marriage. The amendment Exemption can be applied constitutionally the benefits that would be received by co- in no way addresses benefits conferred to in some situations. The statute applies not habiting couples are only minor, then it is people because of marriage. The state also only to cohabiting same-sex couples, but more than likely that the state interest in argued that the plaintiffs are not similarly also to cohabiting different-sex couples, helping seniors and disabled veterans keep situated to married couples because they and as this application does not create dis- their homes outweighs this minimal ex- do not have the same property ownership crimination based on sexual orientation, pense to the government. status as married couples, and therefore do the statute is not always unconstitutional. Additionally, the state argues that the not meet one of the required elements of an In response, the Superior Court asserts that marital classification furthers this govern- equal protection claim. While people who the statute, to be found facially discrimina- ment interest in assisting seniors and dis- cohabit with a non-married partner are tory, need only be unconstitutional in all abled veterans as a person’s spouse is the only tenants-in-common, it is presumed circumstances in which “the marital clas- most likely person to become their caretak- under Alaska state law that married cou- sification is relevant.” While the Tax Ex- er during illness and if a married couple can ples own property as tenants-in-entirety. emption does bar cohabiting different-sex remain in their home together, it is more The Tax Exemption, the state argues, is couples from receiving the greater tax ben- likely that one spouse can care for the other. meant to apply only to tenants-in-entirety. efit available to married couples, different- Again, Judge Pfiffner finds the state’s argu- The court finds that this conclusion regard- sex couples have the option of marrying. In ment to be more supportive of the plain- ing the statute’s intent is not based on the contrast, this option is permanently closed tiffs’ position. In fact, the state admits that plain language of the statute, which makes to same-sex couples in Alaska so there is no partners in cohabiting, same-sex couples no mention of either ownership category. situation in which the marital classification are just as likely to care for each other as The statute draws a classification based on created by the statute can be applied consti- married couples, and offered no explana- marital status, not ownership status. Judge tutionally to same-sex couples. tion for this contradiction, except that “the Pfiffner finds, therefore, that the Equal Turning to the issue of what level of scru- means-to-end fit of law to its objective can Protection Clause applies in this case as co- tiny should apply to classifications based on be somewhat loose.” The state offers no ex- habiting same-sex couples make the same sexual orientation, Judge Pfiffner sidesteps planation as to why granting the benefit to “commitment to co-own or co-occupy a the actual question of whether heightened one group of long-term committed couples home” as married different-sex couples. scrutiny is appropriate. In ACLU, the court and not another furthers Alaska’s interest The majority of Judge Pfiffner’s opinion, did not examine if sexual orientation is a in assisting seniors and veterans in staying however, focuses on applying the state su- classification that should be given a higher in their homes with the person that likely preme court’s reasoning in ACLU to the level of scrutiny, as the court found that the cares the most about their well-being. The state’s contention here that the statute is statute did not even survive minimal scru- Superior Court found the State’s reasoning not discriminatory on its face. Firstly, the tiny. Following the state supreme court’s that the classification does not have to be a state argues that the Tax Exemption can- approach, the Superior Court holds only perfect “fit” in furthering the government not be facially discriminatory because the that the Tax Exemption fails even the most interest to be an unconvincing excuse. Kelly statute makes no reference to sexual orien- minimal level of scrutiny, and therefore an Garner tation. Judge Pfiffner addresses this claim inquiry into whether a higher level of scru- briefly, stating that in ACLU the court held tiny applies is unnecessary. To satisfy this District Court Unseals Digital that Alaska’s Marriage Amendment creates lower level of scrutiny, “the State must show Record of Prop 8 Hearings a marital classification by defining marriage that the challenged classification fairly and only in terms of different sex-couples. As substantially advances the legislation’s le- In an opinion filed September 19, 2011, the regulation implementing the Tax Ex- gitimate objectives.” Here, the court held addressing a cross-appeal by the Plaintiffs emption uses the term spouse, given the that the state failed to establish that the in Perry v. Schwarzenegger, the U.S. Dis- Marriage Amendment, the statute discrim- marital classification in the Tax Exemption trict Court for the Northern District of inates on its face based on sexual orienta- fairly advances the government interest in California unsealed the digital recordings 206 October 2011 LESBIAN/GAY LAW NOTES of the highly publicized — but until now there is a very strong common law right to none of which would defeat the common unavailable except as a paper transcript — do just that. In fact, the presumption in fa- law right of access in any case. proceedings of the hearing that invalidated vor of the right of access to court records is Finally, the court disposes of the fourth California’s Proposition 8. Perry v Schwar- so strong that a party seeking to overcome argument, that unsealing the record would zenegger, No. 09-02292 JW. that presumption faces a “compelling rea- have a chilling effect on witnesses. To this, The video recording of the trial, created sons” standard supported by “specific fac- the court responds that there is no evidence pursuant to a policy implemented by the tual findings” in order to defeat it. that this may be the case, and that it is Ninth Circuit in 2009 allowing tapings of To combat the Plaintiff ’s cross-motion insufficient to simply allege that the dis- court proceedings in non-jury civil mat- to unseal the record, Defendants rely on semination of the record may have nega- ters, was used by the judge and the parties four so-called compelling justifications: 1) tive consequences. The court highlights the during closing arguments, and was entered that the recording was intended to be kept lack of any evidentiary support in favor of into the trial’s formal record under seal. confidential when it was made, 2) that an the Defendant’s position and notes that, The history of the recording’s existence injunction was issued by the U.S. Supreme on the contrary, the Ninth Circuit actu- itself is a long and complicated one: After Court to stop the broadcast of the record- ally went out of its way to allow broadcast several media outlets requested that the ing, 3) that a local civil law barring photog- of recordings taken at civil non-jury trials, trial be broadcast, Chief District Judge raphy and television broadcast of judicial and would have certainly considered this Vaughn Walker, who presided over the pro- proceedings would be violated, and 4) that chilling effect in making their decision to ceeding, ruled that an audio and video feed unsealing the record would have a “chilling allow that activity. Additionally, since the would be recorded and broadcast over the effect” on those who may testify in trials. Supreme Court injunction that barred internet as well as streamed to other court- Chief Judge James Ware, who took broadcast of this particular trial did not in- houses. It was planned that the trial would over responsibility for the case upon Judge validate the Ninth Circuit’s policy to record be included in a “pilot program” launched Walker’s retirement, makes surprisingly and broadcast trials, rather stated that the by the Ninth Circuit to record and transmit swift and easy work of each of the justi- Circuit’s process in revising its local rules non-jury trials for educational and other fications. The opinion first notes that, in likely did not adhere to federal law, the purposes. relation to point 1, Judge Walker’s state- policy was valid at the time the recording However, this was not to be, as the Su- ment that the recording would not be made was made. preme Court issued a stay of Judge Walker’s public was not binding, and not a justifi- After handily disarming of all the argu- ruling allowing the broadcast, because it cation to keep the record sealed. Even if ments against the unsealing of the record, appeared that the process which the Ninth the Judge’s statement was considered some the court makes absolutely clear that it Circuit followed to amend its rules in order sort of promise or guarantee, that promise is not ruling generally on whether trials to implement the pilot program was not would not be binding on any other court should be broadcast, or whether the prior correct. Judge Walker withdrew the trial or party. trial was fair. The opinion goes to great from the pilot program and did not broad- Moving on to point 2, that the Supreme pains to emphasize that its conclusion rests cast the tape, but notified the parties that a Court issued an injunction stopping the solely on the fact that the common law digital recording of the proceeding would broadcast of the trial, the opinion points right of access to records outweighs any be made for use in chambers. He further out that the injunction was issued based arguments for keeping the record sealed noted that either party to the trial could re- on the narrow legal issue of whether the in this particular case. That said, this will quest a copy of the recording for use during District Court had properly amended its likely be viewed as a win for the opponents closing arguments, but that the recording local rules in order to broadcast the trial. of Proposition 8 who have continuously would remain confidential and under seal The Supreme Court specifically stated, in fought to show the world the testimony, as part of the trial’s official record. fact, that it was solely addressing the pro- statistics, and, presumably, bias, shown dur- Walker’s ruling to keep the documents cedural issues of amending the rules rather ing the trial. confidential was appealed by the Plaintiffs, than whether the broadcast of the trial was Judge Ware stayed the order until Sep- but before that appeal was decided the appropriate. tember 30, after which, barring any ac- Defendants filed an action to ensure that The Defendants’ third justification for tion by a higher court, the record would be Walker did not disseminate his own copy maintaining the seal on the record is that unsealed. Counsel for the Proponents of of the trial, which he had taken with him as Civil Local Rule 77-3, which prohibits “the Prop 8 announced that they would file an part of his judicial papers upon his retire- taking of photographs, public broadcasting, immediate appeal with the Ninth Circuit ment. In response, Plaintiffs and a coalition televising, or recording for those purposes and seek a stay from that court. [A 9th cir- of media companies filed this cross-appeal in the courtroom…in connection with any cuit panel issued an order on September 26 to unseal the recording. judicial proceeding” bars the dissemination temporarily staying the district court’s or- Much significance is made in the opin- of the recording. However, the court un- der to give the parties time to file briefs on ion of the fact that the recording is part derscores that no objection to the recording a pending motion by Proponents of Prop 8 of the judicial record. In considering the was made during the trial by either party, for a stay pending appeal.] Stephen E. Woods cross-appeal, the court notes that while and the recording was used in closing ar- there is no Ninth Circuit precedent indi- guments. Furthermore, the Rule is open to cating there is a First Amendment right a number of interpretations by the court, of access to court proceedings and records, LESBIAN/GAY LAW NOTES October 2011 207

Federal Judge Rejects DOMA same-sex couple who married in Colorado. that in Adams, the validity of the marriage Challenge in Immigration Context (A county clerk issued a marriage license under Colorado state law was dubious, to this same-sex couple; at the time, the whereas the validity of the plaintiffs’ mar- In a decision released on September 28, state had a gender-neutral marriage statute riage in this case is, as a matter of Massa- 2011, U.S. District Judge Stephen V. Wil- which had not been definitely construed chusetts law, unquestioned. A.S.L. son of the Central District of California by any court to ban same-sex marriages.) ruled that binding 9th Circuit precedent The court in Adams rejected all arguments California Transgender Inmate requires him to dismiss a lawsuit challeng- by the petitioners, including the claim of Loses Bid for Sex-Reassignment ing the U.S. Customs and Immigration sex discrimination and the claim of 5th Surgery Service’s refusal to recognize a same-sex Amendment (due process and equal pro- marriage between a U.S. citizen and a citi- tection) violations. Adams has never been A transgender California state prison in- zen of Indonesia. Judge Wilson relied on a overruled or disavowed by the 9th Circuit, mate serving a 50-years-to-life sentence nearly-thirty-year-old ruling that predates and is thus technically binding on all trial for murder has lost her appeal of a ruling positive advances in gay rights in the Su- judges in that circuit. The circuit court’s denying her request for sex reassignment preme Court. Lui v. Holder, No:2:11-CV- decision was, ironically enough, written surgery and transfer to a women’s prison. 01267-SVW. by Anthony Kennedy, who later wrote the The California 1st District Court of Appeal The plaintiffs, Lui and Roberts, married gay rights decisions in Romer v. Evans and denied Lyralisa Stevens’ appeal in a brief in Massachusetts on April 9, 2009. That Lawrence v. Texas on the Supreme Court, order on September 21, 2011, that gave no same day, Roberts, the U.S. citizen, filed a which laid the foundation for current at- reasons for the decision, apart from com- petition on behalf of his husband with the tacks on DOMA! menting that she was receiving adequate California Service Center of the US Cus- “In Adams, the Ninth Circuit held that security at the all-male California Medi- toms and Immigration Service, seeking ‘Congress’s decision to confer spousal sta- cal Facility in Vacaville, where she stays in recognition of his husband’s spousal status tus . . . only upon the parties to heterosexual her single cell to avoid possible harm from through an I-130 Petition. The Service marriages has a rational basis and therefore other prisoners. Stevens v. State. denied the petition and was upheld by the comports with the due process clause and According to press reports about the Board of Immigration Appeals on Janu- its equal protection requirements,’” wrote ruling, Stevens began taking hormones to ary 20, 2011. The men then filed anac- Judge Wilson. “The fact that DOMA was feminize her body in 1993, had her name tion with the district court, claiming that enacted years after the Ninth Circuit’s de- legally changed to Lyralisa the next year, the government’s refusal to recognize their cision in Adams is not persuasive given that and had begun some surgical procedures to marriage constitutes “sex discrimination” in marriage as defined in Section 3 of DOMA reshape her body prior to being incarcer- violation of the Immigration & National- is consistent with Adams. While Plaintiffs ated. She was convicted of killing another ity Act’s anti-discrimination provision, and Defendants point out the alleged de- woman with a shotgun during a dispute as well as violating their 5th Amendment ficiencies in the reasoning in Adams, this about some clothing. When she was in- rights to due process and equal protec- Court is not in a position to decline to fol- carcerated in 2003, she had been living as tion. In effect, then, they are challenging low Adams or critique its reasoning simply a woman for a decade, but prison officials Section 3 of DOMA, which bars federal because Plaintiffs and Defendants believe sent her to a male facility because she still agencies from recognizing same-sex mar- that Adams is poorly reasoned.” had male genitals. Her recent bid for surgi- riages. They hopefully cited in support of Judge Wilson pointed out that the pre- cal removal of her genitals and transfer to a their case Gill v. Office of Personnel Manage- rogative to overturn a 9th Circuit precedent female prison ran into the fact that to date ment, 699 F.Supp.2d 374 (D. Mass. 2010), “rests not with this District Court, but with no court has ever ordered a state prison appeal pending in the 1st Circuit, in which the en banc Ninth Circuit and the Supreme system to provide gender reassignment sur- the court held Section 3 unconstitutional in Court.” Judge Wilson signalled his aware- gery for an inmate. a case involving claims for various federal ness of the case pending in the 1st Circuit, Courts have ruled that under the 8th benefits. but noted that “the plaintiffs in Gill were Amendment, which forbids cruel and un- This is one of the cases in which the spouses of federal employees who brought usual punishment, prison authorities are House of Representatives has intervened suit on the basis of denial of certain federal required to provide appropriate medical to defend DOMA, while the Justice De- marriage-based benefits, thus the context treatment for serious medical conditions partment, nominally the defendant, has of that case was somewhat different from of inmates. Courts have come to recognize switched sides and argued, in support of the present case, which arose in the context that “gender identity disorder” is a serious the plaintiffs, that Section 3 is unconstitu- of immigration law. More importantly, the medical condition for which inmates are tional. court’s decision in Gill does not affect this entitled to treatment. Courts within the Unfortunately, in the 9th Circuit, any- Court’s obligation to follow binding Ninth 9th federal circuit (including California) body seeking recognition of a same-sex Circuit precedent.” are bound by a decade-old precedent man- marriage in the immigration context faces In other words, if this case is to be won dating that they make hormone treatments the precedent of Adams v. Howerton, 673 by plaintiffs, it needs to be won at the ap- available in appropriate cases, and Stevens F.2d 1036 (9th Cir. 1982), in which the pellate level, as trial courts are bound to fol- has been able to maintain her hormone court upheld the Immigration Service’s low any precedent on point. The only real treatments in prison, and to dress and denial of an I-130 petition on behalf of a distinction between Adams and this case is groom herself as a woman. However, due to 208 October 2011 LESBIAN/GAY LAW NOTES threats of violence from male inmates, she book portraits that female students wear a involve claims of sex discrimination in that stays in her cell, does not make use of time “drape” and male students wear a “tuxedo.” the equal protection claim advanced there in the prison yard, and avoids showering The plaintiff, Ceara Lynn Sturgis, identifies involved the regulation’s application as be- when other inmates are using the facilities. as a female but prefers conventionally mas- tween male students only; (2) the court in Her request to be transfered to a female culine clothing. As a result, she was uncom- Karr reached it decision only after consid- prison has been denied, however, as prison fortable with the drape and opted instead ering the school board’s justifications pre- authorities will not house an inmate with to wear a tuxedo for her portrait. sented during a four-day trial; and (3) the male genitalia in a female prison. In response, the district excluded St- justifications offered for grooming stan- A similar lawsuit brought by an inmate urgis’s portrait (and her name) from the dards in a classroom simply may not be seeking sex reassignment surgery is pend- yearbook. After the district denied Sturgis’s the same as those that would justify a dress ing in Massachusetts. Recently, in Fields v. written appeal of the decision, she filed a § code for a senior yearbook portrait. Smith, 2011 WL 3436875 (Aug. 5, 2011), 1983 suit, alleging that the district engaged In sum: “Whether a rational-basis or the 7th Circuit Court of Appeals held in sex-based discrimination in violation of intermediate-scrutiny test ultimately ap- unconstitutional a Wisconsin statute that the Equal Protection Clause of the U.S. plies, the Court still needs to hear and prohibited the use of state funds to pro- Constitution and Title IX of the Federal consider the justifications before deciding, vide hormones or surgery for transgender Education Amendments of 1972. as a matter of law, whether the District’s inmates, finding that the state prohibition At the outset, Judge Jordan noted that justifications survive the applicable level of violated the constitutional obligation to the applicable level of scrutiny for this and scrutiny.” provide appropriate medical treatment for all equal protection cases would prove cen- In rejecting the school district’s mo- serious conditions. In its decision, the 7th tral. Though appearance in a yearbook does tion to dismiss, the court also rejected its Circuit at least theoretically rejected the ar- not involve fundamental rights for which argument that Sturgis failed to allege an gument that state payment for sex reassign- strict scrutiny would apply, Sturgis urged official school-board policy or custom or ment surgery for inmates could be categori- intermediate scrutiny because the “women- that an official policy maker was involved cally ruled out, but that case was brought by must-wear-drapes” requirement constitutes as required to establish § 1983 liability. The inmates seeking to maintain their hormone sexual stereotyping that is facially discrimi- court noted that the complaint refers to the treatment, so the issue of surgery did not natory. The school district countered that decisions of the principal, assistant super- have to be decided. the policy is sex neutral because both sexes intendent and the school board and Sturgis Stevens is described in press reports as were required to wear specific clothing therefore sufficiently pleaded the § 1983 having a slight build and thus being quite (boys were not allowed to wear drapes). elements. vulnerable to physical attack. The court of The court noted that both arguments The court likewise refused to dismiss appeal indicated that if her living arrange- have “some appeal” but found that the deci- plaintiff ’s Title IX claims for the same ments change or her safety is “otherwise sion should be made on a more complete reasons that the equal protections claims compromised,” she can reapply to the court record. survive (i.e., defendants sought dismissal for relief. Otherwise, she continues to be Indeed, the court emphasized that the of the Title IX claims on the basis that it sentenced to living in isolation for her own school district failed to provide any justi- required the finding of an equal protection safety, and to be unable to complete her fications for the requirement ,even after violation, which will now be determined on physical gender transition so long as her providing additional materials in an effort, the basis of a more complete record). incarceration continues. (Based in part on rejected by the court, to convert its motion The case was brought by the ACLU reports by the Associated Press, the Los to dismiss into a motion for summary judg- (LGBT & AIDS Project) with pro bono Angeles Times, and the HuffingtonPost. ment. Assuming the parties do not reach a assistance provided by the firm of Kramer com.) A.S.L. settlement, this sets the stage for discovery Levin Naftalis & Frankel LLP. Brad Snyder and for the school district having to pro- Federal Court Refuses to Dismiss vide specific reasons for the rule and the Equal Protection Challenge to Sex Discrimination Claim purposes it is intended to serve. Louisiana Sex Offender Registry Concerning Yearbook Photo In considering the appropriate level May Proceed of scrutiny that may ultimately apply, the In Sturgis v. Copiah County School Dis- court contrasted the issues involved in the Rejecting in part a motion to dismiss by trict, 2011 WL 4351355 (Sept. 15, 2011), present case with those presented in a case the State of Louisiana, U.S. District Judge the U.S. District Court, Southern District decided by the U.S. Court of Appeals for Martin L.C. Feldman found that a group of Mississippi ( Judge Daniel Jordan), de- the 5th Circuit, Karr v. Schmidt, 460 F.2d of individuals who are required to maintain nied a school district’s motion to dismiss 609 (1972). registration as sex offenders upon their con- the sex-discrimination claims brought by Karr involved a public school’s hair- viction under Louisiana’s Crime Against a high school senior after school officials length regulations and the court there de- Nature by Solicitation Act can sue for a excluded her yearbook photo because she termined that such regulations were subject violation of their rights to Equal Protection sat for her portrait wearing a tuxedo rather to only a minimum standard of review. of the Laws under the 14th Amendment of than a dress. However, Karr, according to Judge Jordan, the U.S. Constitution. The ruling in Doe v. The Copiah County School District, could be contrasted with the present case Jindal, 2011 Westlaw 2935042 (E.D. La., located in Mississippi, requires for year- for at least three reasons: (1) Karr did not Sept. 7, 2011), granted the State’s motion LESBIAN/GAY LAW NOTES October 2011 209 to dismiss substantive due process and 8th ties on those who engaged in oral sex with a Gottlieb in New York and Brooklyn at- Amendment cruel and unusual punish- teenager than those who engaged in vaginal torney Andrea J. Ritchie. The plaintiffs are ment claims, however, as well as dismiss- intercourse with a teenager, requiring only suing as “Doe” to preserve anonymity. The ing Governor Bobby Jindal as an individual the former to register as sex offenders. The judge decided that the state’s demand to defendant under the sovereign immunity court found both groups of defendants to know the identity of the plaintiffs need not doctrine. be “similarly situated in terms of the nature be decided at this stage of the proceeding. Until August 15, 2011, when the gov- of their misconduct,” so imposing a greater A.S.L. ernor signed a reform measure into law, penalty on one than the other offended Louisiana statutes provided that those equal protection of the laws. N.Y. County Surrogate Rejects convicted of solicitation for prostitution in Judge Feldman pointed out the absurd New Challenge to Probate of general were guilty of a misdemeanor that lengths to which the state’s counsel went in Ranftle Estate did not require registration as a sex offend- trying to justify having essentially the same er, but a special statute, Crime Against Na- conduct treated differently. “In fact, when New York County Surrogate Court Judge ture by Solicitation, imposed longer prison asked during oral argument why the legis- Kristin Booth Glen ruled on September 14, sentences, larger fines, and a sex offender lature has two statutes on the books if the 2011, that the late H. Kenneth Ranftle was registration requirement. The statute was sex acts of the Prostitution statute consume domiciled in New York at the time of his clearly a lingering remnant of the tradition all of the acts of the Crime Against Nature death and rejected a challenge to probate of criminalizing oral and anal sex. After by Solicitation statute, counsel persisted in of his will brought by his brother, Ronald Lawrence v. Texas, such activity may not advancing the fiction that bestiality was an Ranftle, who argued that Ken was a Florida be penalized when engaged in privately by act not covered by the Prostitution statute domiciliary. Ranftle’s domicile at death was consenting adults, but the Supreme Court but is covered by the Crime Against Na- important because his marriage to J. Craig pointed out in that case that it was not ture statute. That comment defies credulity. Leiby is recognized under New York law, ruling on the constitutionality of laws on Its absurdity is betrayed by the statutory but would not be recognized under Florida commercial sex. text, the Louisiana Supreme Court’s pro- law. Thus, the designation of Leiby as sole At the heart of the argument in this case nouncements, and common sense.” distributee and as executor of the estate is the contention that there is no rational Judge Feldman rejected the argument theoretically hinges on a determination of basis for imposing a more draconian pun- that the distinction could be justified out his deceased husband’s state of domicile. ishment on solicitation for compensated of public morality and public safety con- In the Matter of Ranftle, 2008-4585, NYLJ sex when it involves oral or anal sex than cerns, and said that plaintiffs “have alleged 1202515287643 (Surr., N.Y., decided Sep- for when it involves vaginal intercourse. a facially plausible Equal Protection claim tember 14, 2011). Indeed, the misdemeanor law concerning that at this stage of the case is sufficient The matter is complicated because solicitation for prostitution clearly covers to withstand dismissal for failure to state Ranftle owned a house in Ft. Lauderdale the same conduct, but oral or anal sex have a claim.” Whether the state can justify the and took steps in 2003 to establish domi- been singled out for harsher treatment. The differential treatment “must await a merits- cile there, primarily for tax purposes. Un- plaintiffs argued that the main purpose inquiry.” like New York, Florida does not have a for the sex offender registry was to protect However, the court did not see a right to personal income tax, and, observed Judge children from sexual assaults, but that the privacy claim here under the Due Process Glen, “there are capital gains and property crime covered by this solicitation statute Clause, pointing out that every attempt to tax advantages and a significant homestead bore no rational relationship to that pur- challenge the constitutionality of sex of- exemption” available to Florida domicili- pose. fender registry laws under the Due Process aries. Although Ranftle and Leiby spent The court found persuasive as applied to Clause has been unsuccessful, including a large part of the year living together in this case the rationale of Eisenstadt v. Baird, in a persuasive 11th Circuit decision cited the apartment they jointly owned on West 405 U.S. 438 (1972), which struck down a by the court. Furthermore, it found that 13th Street in New York City’s Greenwich Massachusetts law that prohibited distri- the Supreme Court had upheld such laws Village, as well as property on Fire Island bution of contraceptives to single people against procedural due process claims. Re- and an apartment they bought in Montreal, while allowing it (as required by the Su- jecting an 8th Amendment claim, the court Ranftle had been careful to maintain his preme Court’s decision in Griswold v. Con- clung to the absurd contention -- which Florida domiciliary status by document- necticut) for married persons. The Supreme courts have accepted -- that requiring ing his presence in the state for at least 183 Court found that there was no rationale to somebody to register as a sex offender is not days in each tax year, as required by Florida support the challenged law that would not “punishment.” Go tell that to the people law. also be advanced by penalizing the distri- who find their ability to carry on a normal However, when he was diagnosed with bution to married couples, which is consti- life severely undermined by being listed in terminal lung cancer in March 2008, he tutionally foreclosed. one of those on-line sex offender registries. decided to remain in New York City and More directly on point, the court noted, But the myth of the “non-punitive” registry actually never spent another day in the was a California Supreme Court decision lives on for now, at least in this case. Florida house between then and his death in People v. Hofsheir, 129 P.3d 29 (Cal. Students at Loyola Law School’s Clinic on November 1, 2008. That was a memo- 2006), striking down on Equal Protection in New Orleans are working on this case, rable year for same-sex marriage in New grounds a law that imposed higher penal- as well as pro bono attorneys from Cleary York. Early in the year, an upstate appeals 210 October 2011 LESBIAN/GAY LAW NOTES court ruled that same-sex marriages con- attorney, I find by clear and convincing The judge also noted many instances tracted elsewhere must be recognized in evidence that some time in 2008, probably during those final months of his life when New York, and shortly thereafter Governor at or around the time of his terminal diag- Ken had declared himself a New Yorker, in- David Paterson issued a directive to state nosis, but no later than his marriage, Ken cluding in a separate Canadian will execut- agencies about compliance with the court’s formed the intent to abandon his Florida ed to deal with their Canadian real estate ruling. Reacting to these events, Ranftle domicile and to re-establish his domicile holdings, “on all the official documents sur- proposed marriage to Leiby, his long-time in New York where his friends, family and rounding his marriage, his application for partner, and they traveled to their Mon- beloved spouse were located. He did so for Social Security and Medicare, and his pre- treal apartment and made the necessary ar- two reasons: to be with those he loved, in liminary efforts to file income tax returns as rangements, marrying there on June 7, and the city where he had lived and prospered, a New York resident.” then returning to New York. in the commodious apartment he and his Having resolved the domicile issue Ranftle also arranged to make a new husband owned together, and had lived in against Ronald Ranftle, Surrogate Glen will, now that he was getting married. At since 1999; and because New York, unlike dismissed the petition to vacate the probate this point there was an unfortunate slip-up, Florida, had expressed its willingness to decree. as the attorney who prepared the new will recognize and respect his relationship with The case certainly illustrates the diffi- cut-and-pasted provisions from his prior -- and marriage to -- Craig. It is significant culties faced by same-sex partners in our will and overlooked the statement in the that, following his diagnosis, Ken never re- mobile society as they travel from state to prior will that Ranftle was domiciled in turned to Florida, even while taking steps state or invest in property in different juris- Florida, so that provision was transferred to protect Craig’s interest in the only prop- dictions against a legal framework (encour- to the new will intact. Both the lawyer and erty he owned there.” aged by Section 2 of the federal Defense of Ranftle were focused on the provisions that Glen found that the reference in the last Marriage Act) where some states will rec- were changed and paid no attention to this will executed by Ranftle to being a Florida ognize same-sex marriages and others do provision. Ranftle did not bother to change domiciliary was something courts refer to not. This continuing patchwork system of his driver’s license, and actually cast an ab- as a “scrivener’s error,” not representative of marriage recognition is intolerable, which sentee ballot in the 2008 general election in Ranftle’s actual intent, and actually over- helps to explain why the effort to repeal November before he died. (A bit of irony looked by Ken. Further, she characterized DOMA continues to pick up support in here, as Election Day was November 5 and his voting by Florida absentee ballot as “an Congress, including the recent addition Ranftle passed away on November 1.) anomaly insufficient to overcome the oth- of the first Republican co-sponsor in the After Ranftl died, Leiby presented the erwise compelling evidence that Ken chose House of Representatives. will for probate and Surrogate Glen con- to become, became, and died a domiciliary Leiby was represented in defending pro- cluded that as Leiby was a surviving spouse, of New York.” bate of the will by attorneys Kevin J. Far- he was the sole distributee at law and there “In considering the ‘association and in- relly and Erica Bell (of the firm of Weiss, was no need to notify other surviving rela- terests’” that courts are supposed to consid- Buell & Bell). A.S.L. tives. Leiby was the executor and main er in determining issues of domicile, wrote beneficiary under the will. But another one the judge, “there is one additional compel- Federal Civil of Ranftle’s brothers, Richard, sought to ling fact. Ken was a proud gay man who intervene in the case, challenging Leiby’s treasured -- and sought in every way avail- Litigation Notes spousal status, and took that challenge to able to protect -- his husband Craig, and the Appellate Division, which affirmed Craig’s rights upon his death. He named First Circuit — The Justice Department Surrogate Glen’s ruling that the marriage Craig executor in his will, and it was obvi- and the House of Representatives filed would be recognized in the probate context ously his intent that Craig should not only their briefs in the pending appeals of Gill in New York. See In re Estate of Ranftle, 81 be the primary beneficiary of his estate, v. Office of Personnel Managementand Com- App. Div. 3d 566 (1st Dept. 2011). Ranf- but also that he be permitted ‘to serve as monwealth of Massachusetts v. U.S. Depart- tle’s other brother, Ronald, then brought a fiduciary [because to do so] is one of the ment of Health and Human Services, Case this new challenge, contending that Leiby last services a family member can perform No. 10-2204, in which the District Court was not qualifed under Florida law to be for a loved one who has passed away.’ Had in Massachusetts ruled last year that Sec- sole distributee and executor, seeking to va- Ken died a domiciliary of Florida, under tion 3 of the Defense of Marriage Act vio- cate the probate decree. Florida law Craig could not have served as lates the equal protection component of the After a hearing, Surrogate Glen signed a his executor. Florida law requires that only 5th Amendment, the Spending Clause, and detailed opinion reviewing all the evidence a spouse, certain close relations or a Florida the 10th Amendment separation of pow- on September 14, which was published by resident may serve as a personal representa- ers as between the states and the federal the New York Law Journal on September tive and since, as Ken well knew, Florida government. [Section 3 provides that for all 23. Taking into account all the evidence would not recognize his marriage (and of purposes of federal law only the union of a presented on both sides of the question, course, Craig was clearly not a Florida resi- man and a woman will be deemed a “mar- Glen concluded that Ranftle was a New dent) failing to change his domicile would riage” and only the parties to such a union York domiciliary at his death. “Based on the have ‘thwarted his wish’ to have Craig serve would be deemed “spouses.”] The Justice testimony of the witnesses,” she wrote, “es- as his executor.” Department, which originally filed the ap- pecially Craig, Ken’s accountant, and Ken’s peals on behalf of the federal government LESBIAN/GAY LAW NOTES October 2011 211 defendants, has drastically changed its po- Collins and other former military person- Oops! That’s not their official argument. sition in the case. Its original brief, which nel whose separation pay was cut in half Their official argument is incomprehen- was filed before President Obama and At- because their honorable discharges were sible, seeking to turn back the clock to the torney General Holder announced their due to homosexuality. The repealed statute days before Lawrence v. Texas and Romer v. view that Section 3 was unconstitutional says nothing about this. The Defense De- Evans. and would no longer be defended in the partment provides “separation pay” for per- Ohio — U.S. District Judge James S. courts by DOJ, had urged the 1st Circuit to sonnel who are honorably discharged after Gwin (N.D. Ohio) ruled on September 26 reverse Gill on the argument that Section 3 a specified period of service. The Depart- in Hutchinson v. Cuyahoga County Board of survives rational basis review, and to reverse ment decided as a matter of policy to halve County Commissioners, Case No. 1:08-CV- Commonwealth on the ground that Sec- the separate pay of those discharged un- 2966, that Shari Hutchinson may proceed tion 3 was within the power of Congress der DADT. (Service members discharged with her Section 1983 equal protection to enact. In its new superseding brief, filed for engaging in gay sex would not receive claim against the County based on alle- on September 22, DOJ argues that the 1st honorable discharges, because they would gations that the county, despite its official Circuit should reconsider its precedent on have violated the Uniform Code of Mili- non-discrimination policy, had a practice the level of scrutiny for sexual orientation tary Justice, and would not be entitled to of rejecting gay applicants for promotion. discrimination claims, adopt a heightened separation pay. The repeal of DADT has Hutchinson, who had excellent job ratings, scrutiny test, and find Section 3 deficient not affected the UCMJ provision on sexual applied for promotion to several positions under that test. The Bipartisan Legal Ad- conduct.) On September 22, Joshua Block, for which she was qualified, but was turned visory Group of the House of Representa- a staff attorney at the ACLU, argued to down for all of them. Based on statements tives, which by a totally partisan vote of 3 the U.S. Court of Federal Claims that the attributed to various county officials, she Republicans to 2 Democrats resolved to Defense Department policy violates 5th claims that they were rejecting her appli- defend Section 3, is an intervenor-appel- Amendment, which imposes an obligation cations because she is a lesbian. The court lant in the case, and also filed a brief on of equal protection of the laws on the fed- granted summary judgment to the county September 22, arguing that the 1st Circuit eral government. as to one claim, because the county showed should stick with its rational basis approach Connecticut — Briefs were filed Septem- that it had promoted the two highest scor- to sexual orientation discrimination claims, ber 14 on the pending summary judgment ing applicants from an evaluation proce- that Section 3 easily passes the rational ba- motions in Pedersen v. Office of Personnel dure in which Hutchinson ranked fifth, sis test (contrary to the conclusion reached Management, No. 3:10-cv-01750-VLB (D. and she had not made any allegations that by the District Court), and that the deci- Conn.), a pending challenge to Section 3 of the point-allocating selection procedure for sions below should be reversed. The court the Defense of Marriage Act. As has now that job was biased. A.S.L. should be announcing the argument date become expected, the Justice Department, shortly. nominally defending the Office of Person- State Civil Litigation Third Circuit — In an unpublished deci- nel Management in the lawsuit, filed a brief sion released on June 9, 2011, Pagan v. Gon- arguing that Section 3 should be held un- Notes zalez, 2011 WL 2260977, the U.S. Court constitutional as a violation of the Equal of Appeals for the 3rd Circuit affirmed a Protection Clause. The DOJ brief reiter- Illinois — Sangamon County Circuit Judge decision by District Judge Joseph E. Irenas ates the now-familiar argument that sexual John Schmidt ruled on September 26 that (D.N.J.) to grant summary judgment for orientation discrimination claims should he would not stay his earlier ruling against defendants on a Title VII claim by a lesbian merit heightened scrutiny, and that Section Catholic Charities’ argument that state of- federal employee that she was subjected to 3, which forbids the federal government ficials violated the First Amendment by unlawful gender stereotyping and had suf- from recognizing lawfully contracted same- non-renewing foster care and adoption fered adverse employment action by denial sex marriages for any purpose, fails the test contracts with the plaintiffs because of of entry into a training program she sought of significantly advancing any important their policy of refusing to provide services to enter. The circuit court found that Pagan governmental interest. Also as expected, to same-sex couples. The issue came to a was actually making a sexual orientation the brief filed on behalf of the so-called head after Illinois adopted a civil union law discrimination claim, not cognizable under Bipartisan Legal Advisory Committee of mandating that civil union partners have Title VII, and that in any event the failure the House of Representatives, which vot- the same rights under state law as married to provide the training in question was not ed 3 Republicans to 2 Democrats to hire couples. Catholic Charities indicated that an adverse employment action, since she former Solicitor General Paul Clement to it would seek a stay from the 4th District had not suffered a negative change in em- defend Section 3 in the courts, argues that Appellate Court, claiming that irreparable ployment status or terms. sexual orientation discrimination claims do injury would occur if children whose cases not merit heightened scrutiny and that it is were being handled by Catholic Charities Court of Claims — The repeal of the “don’t rational for the federal government to con- were switched to other agencies. State Jour- ask, don’t tell” military policy, which took tinue discriminating against same-sex cou- nal-Register.com, Sept. 26. effect September 20, left some unfinished ples because doing so is necessary to help Illinois — Windy City Times reported business. Among other things, there is the Republican Representatives who con- that the Illinois Human Rights Commis- the lawsuit brought in the U.S. Court of trol the House win re-election from their sion awarded $104,711 in damages to Ve- Claims by the ACLU on behalf of Richard fervently anti-gay religious base of voters. nessa Fitzsimmons, a transsexual who en- 212 October 2011 LESBIAN/GAY LAW NOTES countered discrimination due to her gender diana court order designating him as a de contending that the Republican Caucus of identity from her employer, Universal Taxi facto parent with visitation rights. K.S. re- the State Senate improperly met behind Dispatch, Inc. Her boss reportedly called sponded to the lawsuit by cutting off visita- closed doors with New York City Mayor her a “freak,” a “queer,” and an “abomina- tion. The trial court would not declare B.W. Michael Bloomberg, a supporter of the tion,” and made her pay for repairs to her a de facto parent, but did order limited bill to legalize same-sex marriage in New cab that were not normally charged to visitation for him. The court of appeals re- York, while not affording the same access other drivers. She alleged that the boss versed the visitation order, finding no basis to opponents. This conveniently overlooks threatened to fire her, claiming that cus- in Indiana statutes for it. The court also re- the fact that most of the Republican sena- tomers did not want a transsexual driver, jected B.W.’s attempt to analogize to a case tors were staunch opponents of the bill and and refused to aid her when her cab broke involving same-sex domestic partners, King not open to contrary argument; its pas- down. Fitzsimmons’ attorney, Joanie Rae v. S.B., 837 N.E.2d 965 (Ind. Supreme Ct. sage was ultimately achieved with only a Wimmer, asserted that this may be the first 2005), pointing out that the court’s ruling handful of Republican votes. This suit also damage award for gender identity discrimi- in that case concerned a custody contest argues that Governor Andrew Cuomo im- nation under the Illinois law, which was and a domestic partner claiming to have properly issued a “message of necessity” to amended to include this category in 2006. been a primary caregiver, and by contrast facilitate passage of the bill the same day Indiana — Alisha Brennon has filed a B.W. was not seeking custody of the child the final text was released in the Senate, wrongful death claim in Marion County in this case. rather than requiring the normal three days Superior Court, seeking compensation for New Jersey — Correcting the actions of to allow legislators to study the proposal. the death of her Illinois civil union part- a lawless motion judge, the New Jersey Ap- Schneiderman filed the state’s opposition ner, Christina Santiago, one of those killed pellate Division has reversed a summary to the lawsuit on September 19, arguing when a wind gust at the Indiana State Fair judgment issued in Stephenson v. Rutgers that the Open Meetings Law does not ap- on August 13 triggered the collapse of a University, 2011 WL 4388287 (Septem- ply to party caucuses, only to official -leg stage’s rigging and lighting system into the ber 22, 2011). Kimi Stephenson, who had islative meetings, and that the “message of crowd. Brennon also suffered serious inju- worked part-time as a student manager of necessity” issue is not amenable to judicial ries in the incident, which she attributes in a Rutgers University athletic time, filed a review, being an internal matter to the her lawsuit to negligence by the state. In- harassment and discrimination complaint State Senate. Schneiderman argued that diana law does not allow or recognize civil on March 30, 2009, alleging that she suf- the plaintiffs’ assertion of some sort of First unions or same-sex marriages, so Brennon’s fered discrimination on account of sexual Amendment right to have access to the Re- suit faces long odds. She has simultaneous- orientation and disability. Defendants filed publican caucus was without merit, relying ly filed a suit in federal court challenging an answer, denying her material allegations. on several U.S. Supreme court decisions. A various aspects of the Indiana Torts Claims With issue joined, defendants filed a mo- copycat suit was also filed in the U.S. Dis- Act, which provides a small sum for acci- tion for summary judgment requesting oral trict Court for the Northern District of dent victims, placing a low cap on damages argument. Stephenson filed an opposition New York by an upstate couple who are op- for negligence claims against the state. Chi- to the motion, to which defendants re- posed to the law, Margaret and Tomas Za- cago Sun Times, Chicago Tribune, Sept. 27. plied. But the motion judge issued an order validroga, who named Governor Cuomo as Indiana — The Court of Appeals of In- granting the motion without scheduling a their lead defendant (Zavalidroga v. Cuomo, diana ruled on September 28 that the for- hearing. “The judge handwrote a nine-line 11-CV-831). In addition to the arguments mer boyfriend of a married woman was not explanation of his decision, which did not advanced in the state court case, the Zavali- entitled to an order awarding him visitation contain any findings of fact and contained drogas argued that there is a “gay marriage with the child he had been raising with her only cursory conclusions of law,” wrote the confederacy… [that has] unconstitutionally before she got married. K.S. v. B.W., 2011 Appellate Division, which then went on to foisted its demented social programs upon WL 4478319. K.S. was not married to the point out that a request for oral argument an invariably unwilling populace.” They child’s biological father, who died about on a civil motion for summary judgment contended that “the major media in New six months after the child was born. She “shall be granted as of right.” The decision York were working in collusion to censure subsequently became involved with B.W., was vacated and remanded for oral argu- viewpoints in opposition to same-sex mar- who lived together with her and the child ment. Wrote the court, “The judge should riage just prior to its being voted on by the in West Virginia. The child referred to B.W. address both the statute of limitations issue, legislature.” If they have a lawyer represent- as “dad” and “daddy,” and he was listed as which was apparently the basis for his deci- ing them, we would be the father on her school records. After the sion, and the substantive-law issues raised New York — Shades of “The Man With- non-marital relationship between K.S. and in the motion.” out a Country”…. In Debi R.-C. v. Dan- B.W. ended, K.S. continued to allow B.W. New York — In two pending cases, New ica P., NYLJ 1202512952412 (N.Y. Fam. to have regular visitation with the child. York Attorney General Eric Schneiderman Ct., Kings Co., July 28, 2011) (published But a few years later K.S. got married and is defending the recently-enacted Mar- in NYLJ 9/1/2011), Family Court Judge moved to Indiana with her new spouse and riage Equality Act against claims that it Michael L. Katz ruled that the court was the child. Although occasional visitation was improperly passed by the legislature. without jurisdiction to entertain a custody with the child continued, evidently B.W. New Yorkers for Constitutional Freedoms proceeding concerning a child born to a was concerned about protecting his rela- v. State Senate, No. 807-2011 (N.Y.Sup. lesbian couple through donor insemina- tionship with the child and sought an In- Ct., Livingston Co.), was filed by a group tion because New York was not the “home LESBIAN/GAY LAW NOTES October 2011 213 state” of the child. Indeed, due to the birth teacher who, according to the court, was sented in the opinion by the court by Ap- mother’s frequent moves since the child “by all accounts….an inspiring and incredi- pellate Military Judge Gallagher indicated was born, at the time this suit was filed the bly effective teacher.” The court’s account of that the sexual activity followed a social child had no “home state” since it had not what happened to Mr. Vinson suggests that event that involved considerable alcohol resided in any one state for the six months he was a victim of homophobia, adminis- consumption. Later in the night, the appel- before the filing! The respondent, Danica P., trative bias and retaliation. One member lant staggered drunkenly into the victim’s had signed a Donor Insemination Agree- of the court, James Johnson, dissented, room and prevailed on him to engage in ment on February 26, 2009, which was also painting a completely different picture of a oral and anal sex, over mild protests. The signed in India by the semen donor and his teacher in frequent trouble with the school court martial found that the specification wife, under which Danica and her same- administration. During the course of the “by force and without the consent” of the sex partner, Debi, agreed that “Danica and case, Vinson obtained a position teaching victim had not been proved beyond a rea- Debi shall have absolute and complete le- at a private school and dropped his claim sonable doubt, but that neither had the ap- gal and physical custody of the child” and for reinstatement, but his claim for damag- pellant proved that the sex was consensual. that the women “intend to raise said child es kept the case alive. The court majority, in Finding support in the record for the court together.” A co-parenting agreement was reversing a decision by the court of appeals martial’s factual finding, the appeals court also prepared but never executed, an subse- that had granted review and reversed the further agreed with the court martial judg- quently the relationship between the wom- hearing officer’s decision, scolded the court es that Lawrence v. Texas would not shelter en soured. Danica and the child moved out of appeals for attempting to modify the this case, distinguishing the facts and, most of their home to Danica’s aunt’s home in standards governing dismissal of tenured pertinently, observing: “The military has New Jersey in September 2009, then she faculty in such a way as to provide little if a unique need for unit cohesion and dis- moved to Maine in 2010 to live with her any protection to them, as well as for grant- cipline that does not necessarily exist out- mother, then she moved to Massachusetts ing judicial review that was not authorized side of the military environment. The non- in October 2010. Debi sued for custody in by statute. (The court pointed out that the consensual nature of the prohibited sexual Maine in September 2010, but the Maine school district could seek a constitutional contact occurring in the barracks between court applied the “home state” rule and review, as opposed to statutory review, but two young intoxicated members of th same concluded it lacked jurisdiction, noting had not sought such a review and did not company remove this case from the nature that suit could be filed in New York, New appear to have constitutional grounds for and reach of the Lawrence liberty interest. Jersey or Massachusetts. However, Judge attacking the hearing officer’s decision. Appellant’s act of sodomizing PFC LY in Katz found that at the time Debi filed the By contrast, the dissenter argued the dis- PFC LY’s barracks room, without PFC subsequent suit in New York (arguing that trict must have a right to statutory review LY’s consent, not only violates the trust as the child was born and lived for a sub- and that the hearing officer’s decision was between soldiers, but also compromises stantial time in New York, it should be con- plainly wrong.) The court said that “suffi- unit cohesion and discipline.” The appeals sidered the home state), the child had not cient cause” for terminating a “certificated panel upheld the sanctions imposed by the lived anywhere for long enough to have an teacher” may be found, “as a matter of law… military judge of a bad-conduct discharge, established home state. By now, however, in only the most egregious cases.” The Ta- confinement for 30 months, forfeiture of the child has resided in Massachusetts long coma News Tribune reported September 30 all pay and allowances and reduction to the enough, so Debi’s next step may be to file a that Vinson has a separate lawsuit pending grade of E1, with a notation that he had custody action in Massachusetts. Actually, against the school district, claiming he suf- “adjudged the maximum sentence autho- in light of the lack of an adoption or a legal fered discrimination due to his sexual ori- rized for Charge III [assault consummated status for the women’s former relationship, entation, but did not indicate whether that by battery[ and its specification.” As Article she might not have fared very well under suit is in state or federal court. A.S.L. 125 is not affected by the DADT Repeal New York precedents in any event. Act of 2010, the military sodomy law re- Washington — The Supreme Court of Criminal Litigation mains fully in place and potentially appli- Washington ruled in Federal Way School cable to openly gay individuals who will be District No. 210 v. Vinson, 2011 WL Notes allowed to serve after September 20. 4485950 (Sept. 29, 2011), that a school dis- California — A Ventura County jury trict does not have a right under applicable U.S. Army Court of Criminal Appeals — The failed to reach a verdict in State v. McIn- state law to statutory judicial review of a Army Court of Criminal Appeals affirmed erney, the prosecution of a young man who hearing officer’s decision that a teacher was a court-martial verdict convicting a young murdered a gay classmate at E.O. Green discharged without sufficient cause. The Army private of sodomy under Article 125 School three years ago in a case that imme- court also upheld the hearing officer’s deci- of the Uniform Code of Military Justice diately received national media attention as sion in this case involving David Vinson, (UCMJ), rejected his argument on appeal an extreme form of anti-gay violence. Iron- an openly-gay high school teacher who was that his conviction for having sex with an- ically, it seems that the hate crime element discharged after a brief, vulgar shouting other man in his unit in the barracks late of the case and the prosecution’s decision match with a former student at a fast food at night violated his constitutional rights to charge Brandon McInerney as an adult restaurant. The decision for the court by under Lawrence v. Texas. U.S. v. Truss, 2011 for a crime he committed at age 14 resulted Justice Charles Wiggins sets out a detailed WL 3891821 (Aug. 31, 2011) (not report- in splitting the jury, all of whose members account of the struggles of an openly-gay ed in M.J.). The summary of the facts pre- resisted the hate crime charge and most of 214 October 2011 LESBIAN/GAY LAW NOTES whom would not convict on a homicide from an incident at the Stonewall Inn on or subsidized housing programs into the charge. Afterwards there were reports that Christopher Street in Greenwich Village general residential housing sector. The bills jurors were upset that this was not handled in October 2010. From press reports, it were introduced with co-sponsors in each as a juvenile case, reflecting the prevalent sounds like Francis stopped in to the bar House on September 22. view that young teens are not sufficiently to use the restroom. While using the urinal, California — Citing the U.S. Supreme developed to be chargeable with the mens he asked the man at the next urinal about Court’s ruling in Snyder v. Phelps, holding rea of serious adult crimes. All the jurors the bar and, upon being told it was a gay that anti-gay demonstrators had a consti- agreed that McInerney was guilty of some- bar, Francis used an anti-gay slur, told the tutional right to engage in anti-gay picket- thing, but they failed to achieve the neces- victim to get away from him, demanded ing near a military funeral, Governor Jerry sary unanimity around a particular verdict. money, punched the victim as another man Brown vetoed S.B. 888, which would have Ventura County Star, Sept. 2. who stopped in with Francis held the door imposed a ban on any picketing within California — The 2nd District Court of closed, tackled the victim and held him 1,000 feet of a funeral. The ACLU had Appeal upheld a Los Angeles County jury’s down. The victim required hospital -treat opposed the bill as overly broad. Senator verdict of second degree murder in People v. ment. Francis’s confederate, one Christo- Ted Lieu (D-Torrance), the bill’s princi- Garcia, 2011 WL 4347861 (Sept. 19, 2011) pher Orlando, has also pled guilty to simi- pal sponsor, said that he would come back (not reported in Cal. Rptr. 3d). Garcia had lar charges and will be sentenced in January. with a new bill of more limited geographi- been hired by the victim, Jose, a gay man, Francis’s attorney claims his misconduct cal scope, perhaps 500 feet. San Francisco to assist with his business, and Garcia had was due to abuse of prescription pills and Chronicle, Sept. 9. lived with Jose for a time. Garcia, who tes- alcohol, and that he has no malice towards California — Governor Jerry Brown has tified at trial that he is heterosexual, beat gay people, including his lesbian sister. Wall signed into law S.B. 117, a bill requiring Jose to death. He claims tohave been act- Street Journal, Sept. 27. A.S.L. businesses that have state contracts valued ing in self-defense, warding off sexual at- at $100,000 or more to provide equality of tacks. There was some evidence that Garcia Legislative Notes spousal benefits to same-sex partners. Un- had submitted to Jose’s sexual advances on der the bill, that state would be precluded several occasions prior to the fatal incident. from entering into such contract unless any He was charged with first degree murder, Federal — U.S. Senator Kay Hagan of benefits afforded to different-sex partners but the jury convicted on the lesser of- North Carolina has announced that she of employees are offered equally to same- fense, and he was sentenced to 15 years will add her name as a co-sponsor of the sex partners of employees. Advocate.com, to life. Garcia testified in his own defense. pending Employment Non-Discrimina- Sept. 7. On appeal, among other things, he unsuc- tion Act, a bill that would enact a federal California — On September 2, the Cali- cessfully challenged the prosecutor’s cross- ban on employment discrimination based fornia Senate approved Seth’s Law, AB9, a examination concerning his own sexuality on sexual orientation or gender identity. bill previously approved by the Assembly and whether he had enjoyed sex with Jose, Hagan’s addition to the bill brings the that would mandate that California schools asserting that it was intended to undermine number of Senate sponsors to 41. The cur- adopt anti-bullying policies and programs. his defense. The court found that the ques- rent version of ENDA was introduced in It is named for Seth Walsh, a 13-year-old tions were proper in light of the arguments the Senate by Senator Jeff Merkley of Or- boy who hanged himself after being the Garcia was making on defense. egon. A prior version of the bill, which victim of intense bullying that federal offi- Maryland — Teonna Brown, who pled lacked coverage for gender identity, passed cials later concluded had not been properly guilty to first-degree assault and hate crime the House in 2007 but was not brought to addressed by the Tehachapi Unified School charges for beating a transgender woman a vote in the Senate. A much earlier version District. inside a McDonald’s restaurant, was sen- of the bill came within one vote of passing New Hampshire — The future of same- tenced on September 13 to 10 years in pris- the Senate in 1996. sex marriage in New Hampshire will be put on, with five suspended, plus three years of Federal — Senator John Kerry (D-Mass) to the test, as Republicans, who now con- supervised probation. While Brown’s attor- and Rep. Jerrold Nadler (D-N.Y.) have in- trol the legislature, have begun the process ney argued that the sentence was excessive troduced companion bills in the Senate and of repealing the law authorizing same-sex in light of his client’s age (18) and expressed House known as the Housing Opportuni- marriages that went into effect on January contrition, advocates for transgender rights ties Made Equal Act (or HOME Act), to 1, 2010. The House Judiciary Committee criticized the sentence as too lenient in amend the Fair Housing Act to ban dis- voted to support a bill that would repeal the light of the serious injuries sustained by the crimination in housing and lending based marriage law, although same-sex couples victim, Chrissy Polis, 22. In a letter to the on sexual orientation, gender identity, who have married in the state since the law court, Polis said, “While being beaten, I felt source of income and marital status. In Jan- went into effect would still be regarded as like I was going to die that day.” The attack uary the Department of Housing and Ur- married. Prior to passing the marriage law, included spitting, kicking, hair pulling, and ban Development proposed regulations to New Hampshire had enacted a civil union name-calling. The Advocate.com, Sept. 14. ban anti-LGBT housing and lending dis- law for same-sex couples. The proposal ap- New York — Matthew Francis, 22, was crimination where there is a financial nexus proved in committee would revive that law sentence to two years in prison after plead- with HUD, through financing or insur- with a twist — making civil unions avail- ing guilty to the charges of assault as a hate ances, but the proposed legislation would able to any two adults regardless of sex. crime and attempted robbery stemming cast a wider net beyond federally-funded Manchester Union Leader, September 14. LESBIAN/GAY LAW NOTES October 2011 215

Talk about being “anti-marriage”…. When pass overwhelmingly, the legislature sched- Texas — The San Antonio City Council the younger generation of heterosexuals is uled the vote to take place on the statewide approved a budget that includes domes- given the option of civil unions instead of primary ballot next spring rather than the tic partner benefits for municipal workers. marriage, a surprising number may take general election in November, just to en- The vote was 8-3 on September 15, even it, as France has experienced with its civil sure that the voters most receptive to the though most of the public session held solidarity pacts. * * * As a result of the 2010 proposal will be most likely to turn out and before the vote involved impassioned ar- legislative elections, control of both houses vote. (It was reported that this scheduling guments against partnership benefits by passed to Republicans by veto-proof ma- was at the instance of legislative Democrats religious speakers. The Advocate, September jorities, so a veto by the state’s Democratic who were concerned that the amendment 20. A.S.L. governor would not necessarily stop the might jeopardize their re-election chances proposed bill from being enacted. However, next fall.) The text of the proposed amend- Law & Society Notes there is some question whether both houses ment states: “Sec. 6. Marriage. Marriage of the legislature would ultimately agree by between one man and one woman is the supermajority to an option that includes only domestic legal union that shall be val- Leader of the Free World — During his civil unions available to everybody. id or recognized in this State. This section speech to the opening session of the United New York — TheNew York Post (Sept. 29) does not prohibit a private party from en- Nations General Assembly on September reported that an advisory panel on changes tering into contracts with another private 21, United States President Barack Obama to New York’s Medicaid program is con- party; nor does this section prohibit courts stated: “[N]o country should deny people sidering recommending that gender reas- from adjudicating the rights of private par- their rights because of who they love, which signment surgery be covered under Med- ties pursuant to such contracts.” Fears were is why we must stand up for the rights of icaid. A reporter seeking reactions to this expressed that passage of this amendment gays and lesbians everywhere.” This was re- story elicited the expected outrage from the would invalidate existing domestic part- portedly the first time a U.S. President has head of the state’s Conservative Party and nership policies in some municipalities and spoken out in support of LGBT rights be- more polite opposition from a Republican public institutions in the state. fore the General Assembly of the United state senator. Ross Levi, of Empire Pride Pennsylvania — On September 14, Nations. Agenda, pointed out that two other states, Springfield Township (in Montgomery DADT Repeal Implementation — Not California and Minnesota, cover such pro- County) became the 22nd Pennsylvania even worth a headline? As scheduled, the cedures under their versions of Medicaid. municipality to ban discrimination based DADT policy requiring the discharge of It is worth noting in this connection that on sexual orientation or gender identity. gay military personnel (if they failed ad- at least one federal appeals court, the 7th This illustrates an interesting phenom- equately to conceal their sexual orienta- Circuit, opined recently in striking down enon that has occurred across the country tion) expired on September 20. Apart from a Wisconsin ban on the state funding sex in jurisdictions where the state legislature some news accounts about joyful celebra- reassignment surgery for prison inmates has refused to amend state law to cover tions near various military bases, the event that such procedures may in some cases these categories. Such states in some parts went off without newsworthy incident, be “medically necessary,” and of course the of the country have seen a proliferation of despite last-minute unsuccessful attempts mandate of Medicaid is to fund medically municipal and county ordinances passed in by some Republican House members to necessary procedures for poor people who default of state action, so that a substantial persuade the Defense Department to put lack the means to pay for them. Private portion of the citizens are covered by such off implementation until they had actually health insurance policies and employer- policies. In Pennsylvania, for example, the published new regulations. On September sponsored group policies generally don’t major cities all ban such discrimination, but 30, revisiting an issue that had caused some cover sex reassignment surgery. residents of rural and suburban areas are consternation during the run-up to certifi- North Carolina — The legislature has less well protected. A similar phenomenon cation last spring and summer, the Defense placed a measure on the ballot to amend can be seen in Texas, Georgia, Utah, and a Department announced that it would be up the state constitution to ban same-sex mar- few other states where the legislatures re- to individual military chaplains whether to riages, even though state statutory law al- main resistant to joining the national trend. conduct same-sex marriage ceremonies for ready does so. At present, North Carolina Equality Pennsylvania hailed the enact- service personnel in states where such cer- is the only state in the southeast that lacks ment in a September 15 press release. emonies were legal. The disposition of the such a constitutional amendment, and the Wisconsin — The Appleton Common Pentagon at this point is to say that lesbian, legislature is concerned that the ultra-pro- Council voted 10-6 to approve a plan that gay and bisexual personnel are to have the gressive left-wing radicals on the North extends health benefits to same-sex domes- same rights and privileges as non-gay per- Carolina Supreme Court might be tempted tic partners of non-union municipal em- sonnel — apart, of course, from those ben- to risk summary execution by spontaneous- ployees. Mayor Tim Hanna, arguing for the efits that depend on federally-recognized ly ruling that same-sex couples are entitled measure, asserted that it would make the marriage status, which must be limited to to be married in the state. (That’s the only city’s recruitment efforts more competitive, different sex married couples on account of way it could happen, since nobody has filed in light of the large and growing number of the unconstitutional Section 3 of DOMA, any lawsuit in the North Carolina courts municipal governments that provide such which the Obama Administration con- seeking the right to marry for same-sex benefits to their employees. Post-Crescent, tinues to enforce while arguing to federal couples.) To ensure that the measure will Sept. 8. courts that it should be struck down. Every 216 October 2011 LESBIAN/GAY LAW NOTES announced Republican presidential candi- of same-sex couples of any “state,” with marriages or other formal relationships date has stated disagreement with the re- 18.08 per thousand households. The mu- (domestic partners, civil union partners), peal of DADT, and some have vowed to re- nicipality with the greatest density of same- and that “the absence of federal recogni- instate it if elected. (The Repeal Act passed sex couples was — surprise!! — San Fran- tion for these couples has created ambigu- last year probably would not be a barrier cisco, with 30.25 per thousand households. ity and complexity in the tax law that can, to that, because it essentially removed the Nationwide, 31% of the same-sex couples in part, be mitigated through IRS action.” DADT policy from federal statute books who self-identified as spouses are raising Of course, the letter, concludes, “legislative but left it to the President and leaders of children together, as are 14% of unmarried action should be taken to fully address the the Defense Department to determine same-sex partners. For detailed census in- inequities experienced by same-sex cou- what policy to put in its place. The moot- formation about same-sex couples, visit the ples,” but in the meantime, the IRS should ing of the pending Log Cabin Republicans website of the Williams Institute at UCLA “take immediate action within its authority case [see above] means that the string of Law School. The Institute has taken the to reduce unnecessary burdens and ensure almost a dozen federal circuit decisions lead in analyzing and disseminating census our tax law is applied fairly and equitably to upholding the constitutionality of DADT data about same-sex couples. all taxpayers.” Almost all of the signers of remains unbroken.) * * * One side effect to Federal Employee Travel and Reloca- this letter are Democrats. The Republicans DADT repeal is the potential to upgrade tion Allowances — On September 28, the in the House undoubtedly have a better so- unfair discharges. The Associated Press re- federal General Services Administration lution to this problem: repeal the Internal ported on September 16 that the Navy has published its final rule adding new defini- Revenue Code and substitute a “value add- agreed to upgrade the discharge of Melvin tions of “dependent,” “domestic partner,” ed tax” or national sales tax as the principal Dwork from “undesirable” to “honorable.” and “domestic partnership” and “immediate source of federal tax revenue. * * * The I.R.S. Dwork, an 89-year-old veteran of World family” to regulations pertaining to travel has published on its website a set of “Ques- War II who was expelled from the Navy and relocation allowances for same-sex tions and Answers for Registered Domes- for being gay more almost 70 years ago, will domestic partners of federal employees. tic Partners in Community Property States now be eligible for benefits that have long See 76 Fed. Reg. 59,914. The rule adopts and Same-Sex Spouses in California,” spe- been denied to him, including medical care as final an interim ruled that was issued cifically addressing issues concerning tax and military burial. The Board for Correc- last November, and is immediately effec- treatment of community property in the tions of Naval Records informed Dwork tive. These rules only apply to travel and handful of community property states that that a decision was made to upgrade his relocation allowances. The definitions were have afforded a legal status to same-sex re- discharge on August 17, premising its rul- derived from those that have been used by lationships. ing on his “exemplary period of active duty.” the Office of Personnel Management in Bi-Partisanship — U.S. Rep. Ileana Ros- White House LGBT Liaison — Me- extending eligibility for the Federal Long Lehtinen, who represents a district in the troWeekly reported on September 23 that Term Care Insurance Program to same- Miami municipal area, has become the the White House was planning to name sex domestic partners of federal employees. first Republican member of the House of Gautam Raghavan, currently the deputy This is a part of the general Obama Ad- Representatives to formally co-sponsor the White House liaison at the Defense De- ministrative initiative to recognize same- Respect for Marriage Act, a pending bill partment, to be the LGBT liaison in the sex domestic partners of U.S. government that would repeal the Defense of Marriage White House Office of Public Engage- employees to the extent possible through Act and put in its place a federal policy of ment, the office that addresses the- con administrative action, in recognition of the recognizing all marriages that are legally cerns of various minority groups. Raghavan likelihood that any legislative action to this contracted under state law, regardless of the played an active role within the Defense end would get nowhere in the Republican- genders of the couple. Miami Herald, Sept. Department in implementation of the controlled House of Representatives and 23. DADT Repeal Act, which became final could not achieve cloture even if favored by Immigration Policy — Sixty-nine mem- on September 20. Raghavan’s predecessor a majority of Democrats in the Senate. See bers of Congress, led by Rep. Jerrold Nadler in the White House job, Brian Bond, left BNA Daily Labor Report, 188 DLR A-15 (D-NY), ranking Democrat on the Judi- that post to become director of constitu- (September 28, 2011). ciary Subcommittee on the Constitution ency outreach for the Democratic National Tax Policy — Seventy-four members and lead sponsor of the Uniting American Committee. of the United States Congress sent a let- Families Act, sent letters to Homeland Se- Revised Census Figures — Revised and ter to the Commissioner of Internal Rev- curity Secretary Janet Napolitano and At- updated figures from the U.S. Census re- enue, Douglas H. Shulman, urging that torney General Eric Holder on September duced the national count of same-sex the Internal Revenue Service issue a for- 27 asking that LGBT family ties be consid- couples who self-identified as married to mal guidance to assist same-sex couples ered in pending deportation cases involving 131,729. According to the revised data whose relationships are legally recognized binational same-sex couples. breakdown, the Census Bureau counted in their states of residence through the dif- Patients’ Rights — The Department of 646,464 same-sex couples nationwide, of ficulties of complying with diverging tax Health and Human Services has issued a whom 131,729 described themselves as laws, inasmuch as the I.R.S. is precluded guidance document to assist in enforce- spouses and 514,735 described themselves from recognizing such relationships by the ment of new rules protecting the rights of as unmarried partners. The District of Co- Defense of Marriage Act. The letter notes hospital patients to designate visitors, in- lumbia had the greatest population density that fifteen states now recognize same-sex cluding same-sex partners, and to require LESBIAN/GAY LAW NOTES October 2011 217 respect for advance treatment directives. Bingham McCutchen LLP and Allyson bargaining in professional sports, noted The guidance, announced on September 7, Kurker. on his blog that the 2011 collective bar- is available on the HHS website. Hospi- Social Security Administration to Stop gaining agreement between the National tals that receive any funds under Medicaid “Outing” Transsexuals — On September Football League and the union represent- or Medicare are subject to the rules (i.e., 15, the National Center for Transgender ing professional football players has added just about every health care institution in Equality announced that the Social Secu- “sexual orientation” to the list of forbidden the U.S.), and the Center for Medicare & rity Administration has agreed to end the grounds of discrimination spelled out in Medicaid Services (CMS) sent a letter on practice of allowing gender to be matched the labor agreement. This may be the first September 7 to State Survey Agencies that in its Number Verification System, which time a major professional sports league conduct inspections on behalf of CMS, re- will end the practice of SSA sending noti- has agreed to include a sexual orientation minding them to check for these policies fications to inform employers that the gen- non-discrimination policy in its collective when they evaluate health care institutions’ der marker on an employee’s W-2 does not bargaining agreement. Although some compliance with federal regulations. match Social Security records. NCTE had retired pro football players have become Federal Bureau of Prisons Transgender learned through a Freedom of Information open about being gay, there are no openly Medical Policy — The Federal Bureau of Act request that 711,488 gender no-match gay athletes who are active participants as Prisons has changed its policy concern- letters were sent to employers in 2010. The of now in major professional team sports. ing medical treatment for transgender in- ostensible purpose for sending these letters The non-discrimination policy in the NFL mates in the face of a lawsuit by Vanessa is to uncover people who are using fake So- collective bargaining agreement is enforce- Adams, who has been diagnosed in prison cial Security numbers to conceal their iden- able as a contract under Section 301 of the with gender identity order but has been tity as undocumented workers, but they federal Labor-Management Relations Act denied hormone therapy. The Bureau’s have had the effect of “outing” transsexual of 1947. (Noted on PrawfsBlawg on Sep- policy has been to maintain inmates at employees which has led to loss of employ- tember 24 by Ari Ezra Waldman.) the level of treatment they were receiving ment in some instances. MetroWeekly, Sept. Private Sector Policy Breakthrough — It upon incarceration, but not to start inmates 15. was widely reported late in September that on new therapies. This flies in the face of Wisconsin — U.S. Representative Tam- Wal-Mart, the nation’s largest retail em- 8th Amendment case law that has been my Baldwin, the openly lesbian member ployer, has amended its anti-discrimination construed to require prison authorities to of Congress representing Madison, has policy to include gender identity. The policy provide medically necessary treatment for announced her candidacy for the United was amended to include sexual orientation serious medical conditions and to consider States Senate in the 2012 general election. several years ago. Wal-Mart is headquar- hormone therapy as potentially medically If elected, Rep. Baldwin would be the first tered in Arkansas, a state in which such necessary treatment for inmates with gen- openly lesbian or gay member of the U.S. discrimination is completely lawful. der identity disorder, which most courts Senate. There have been prior unsuccessful The Church Speaks — Writing on behalf now classify as a serious medical condi- openly LGBT U.S. Senate candidates. She of the U.S. Conference of Catholic Bish- tion. In memoranda promulgated by the would be the first such candidate to have ops, of which he is the President, Arch- Bureau’s Medical Director on May 31 and previously won federal elective office. bishop Timothy M. Dolan of New York June 15 of this year, the new policy is de- Sex Offender Registration Laws — A new sent a letter to President Obama on Sep- scribed as follows: “In summary, inmates in study by J.J. Prescott of the University of tember 20, protesting the Obama Admin- the custody of the Bureau with a possible Michigan and Jonah Rockoff of Columbia istration’s decision to file briefs in pending diagnosis of GID will receive a current University, published in the Journal of Law cases calling on federal courts to declare individualized assessment and evaluation. and Economics, contends that a law requir- Section 3 of the Defense of Marriage Act Treatment options will not be precluded ing that sex offenders register and that their unconstitutional. The letter characterizes solely due to level of services received, or presence in the community be communi- the Administration’s actions as “upsetting,” lack of services, prior to incarceration.” The cated to local residents does not actually “harmful to marriage, the laws defending memo also states that “current, accepted reduce sex crimes. The study maintains that it, and religious freedom.” The letter urges standards of care will be used as a reference registration is helpful because it facilitates that the Obama Administration “end its for developing the treatment plan.” Thus, monitoring by the police, but that notifi- campaign against DOMA, the institution the categorical refusal of hormone therapy cation increases the risk that offenders will of marriage it protects, and religious free- to inmates who were not already receiv- offend again because it places many ob- dom.” The letter contends that the - Bish ing it prior to incarceration is abandoned, stacles in the way of an offender readjust- ops “recognize the immeasurable personal according to a joint press release (Sept. ing to civil society, leaving them hopeless dignity and equal worth of all individuals, 30) hailing the policy change by GLAD, and isolated. Slate, Aug. 31. See Prescott & including those with same-sex attraction, NCLR, and the Florida Institute of Legal Rockoff, Do Sex Offender Registration and and we reject all hatred and unjust treat- Services, who collaborated on the Adams Notification Laws Affect Criminal Behav- ment against any person,” but argues that case, in which U.S. District Judge Joseph ior?, J. L. & Econ., http://www.jstor.org/ the law should reflect the “reality” that “no L. Tauro had sent the case to a mediation stable/10.1086/658485. other relationships provide for the common process that produced this new policy. Oth- National Football League — An Ohio good what marriage between husband and ers involved in the representation include State University law student, Peter Ol- wife provides.” sen, who was doing research on collective 218 October 2011 LESBIAN/GAY LAW NOTES

Conscientious Objectors — Do town cantly larger among respondents under 30 declared in violation of the European Con- clerks with religious objections to issu- years of age, according to an article about vention of Human Rights by the European ing marriage licenses to same-sex couples the report by Dana Rudolph available on Court of Human Rights. His victory was have a right to reassign those tasks to other keennewsservice.com (Sept. 29). A.S.L. cited by U.S. Justice Anthony Kennedy in employers to avoid offending their own Lawrence v. Texas to support the propo- consciences? The New York Times (Sept. International Notes sition that sodomy laws were no longer 28) focused on this issue in a report about universally supported on the international Rose Marie Belforti, the elected town clerk stage. in Ledyard, New York, who declined to Australia — The government announced Great Britain — Health Ministers in provide a license for Katie Carmichael and new guidelines to remove discrimination England, Scotland and Wales have agreed Deirdre DiBiaggio on August 30, telling against transgender and intersex individu- that scientific evidence no longer justifies them to come back when her designated als on September 15. Among the changes a lifetime ban on blood donations by gay deputy clerk was on duty. Alliance Defense in policy announced in the guidelines is a men, and have settled on a voluntary defer- Fund has promised to represent such “con- new option for indicating gender on pass- ral of donation by gay men who have had scientious objectors” if they get into trouble ports. Those who do not fully identify as ei- sex within the past twelve-months period. for refusing to do their jobs in this respect. ther male or female can have an “X” marked The lifetime ban dates from the 1980s, Under New York law, a public employee for gender. Transgender people will be put when it was determined that HIV could who “knowingly refrains from perform- to a choice of male or female, but will need be transmitted through blood donations ing a duty which is imposed upon him by to have a doctor’s statement to support and no accurate mass screening test for law or is clearly inherent in the nature of their choice if it differs from their recorded infected blood was available. After various his office” has committed a misdemeanor, sex at birth. Surgery will not be required as tests were introduced, the ban became less and Gay City News reported, in following a prerequisite to listing a gender different defensible; it rested on the “window period” up on this story, that at least one New York from birth gender. CBSnews.com, Sept. 19. theory, under which it was posited that an district attorney, Kathleen Rice of Nassau Iran — The Iranian Student News person might donate blood to soon after County, anticipating the effective date of Agency reported that three men were having become infected to have generated the Marriage Equality Law had written hanged in Karoun Prison in Ahvaz for sod- detectible antibodies to HIV. As advances to town clerks in that county to instruct omy. Reports of criminal executions out in test accuracy have tightened the win- them that they could not deny licenses to of Iran tend to be a bit sketchy, especially dow period, the Health Ministers are now same-sex couples based on their personal about the particular charges in cases. The convinced that a one-year ban after sexual objections. As we went to press, there was UK newspaper, The Independent, picked up activity should be sufficient. BBC News, no indication whether the Cayuga County the story for its September 7 issue. This re- September 8. News reports made no men- District Attorney would take any action port indicated that the case seems not to tion of whether the ban would only apply against Ms. Belforti, whose attitude, as re- have involved charges of rape or sexual as- to those who engaged in unprotected sex, ported in the Times, was that she could do sault, but pertained to consensual sex be- or whether it was also intended to apply to what she wanted and if the local electorate tween adult males. those who consistently used barrier con- didn’t like it, they could vote her out. Ireland — Senator David Norris will traception to avoid exposing themselves to It Gets Better — On September 28, be the openly-gay candidate on the ballot STDs. Thus, even the one-year ban might NORC (formerly known as National when Ireland votes for its ninth president be criticized as unscientific. Opinion Research Center), a University on October 27. Norris had been seen as a Great Britain — Gary McFarlane, a of Chicago based research center that con- likely victor if he could win nomination, as marriage counselor from Bristol, was dis- ducts and publishes research based on the he has topped several public opinion polls, missed by the marriage guidance service General Social Survey (the largest continu- but political support for the nomination Relate in 2008 after he stated that for re- ing survey of public opinion trends in the had appeared to collapse with press reports ligious reasons he could not provide mar- U.S.), published “Public Attitudes Towards that he had attempted to intervene in de- riage counseling for same-sex couples. He Homosexuality.” According to news re- fense of his then-boyfriend who was being is appealing the dismissal of his discrimina- ports, the Survey, based on 2010 data, re- prosecuted for having sex with an underage tion claim to the European Court of Hu- ports that 46% of adults surveyed support male. The implication that Norris approved man Rights, claiming that he is suffering same-sex marriage, compared to only 11 of pedophilia made him untouchable by the unlawful discrimination on account of his percent in 1998. The percentage of adults elected legislators whose support he would Christian beliefs. His unfair dismissal ap- who believe that sexual relations between have needed to win a place on the ballot. peal was rejected in April 2010. Brisbane same-sex adults are “always wrong” has de- However, he fought back in the press and News, Sept. 27. clined from 70% in 1973 to 44% in 2010. was able to win the endorsement of local Great Britain — LGBT Asylum News Support for gay teachers has increased dra- councils in Dublin, Fingal, Laois and Wa- reported on September 27 that a gay man matically, as has support for having books terford, an alternative route to the ballot. from Burundi had won a grant of asylum in about homosexuality in public libraries. The There will be seven candidates in the race. the United Kingdom after an eleven-year author of the report, Tom W. Smith, said Irish Times, Sept. 27. Norris is famous in struggle. Alvin Gahimbaze fled Burundi as that the data showed a generation gap, as LGBT legal history for having brought the a teenager in the wake of ethnic classes in support for pro-gay positions was signifi- case that led to Ireland’s sodomy law being which members of his family were killed. LESBIAN/GAY LAW NOTES October 2011 219

He is currently a law student in England. penalty enhancement in such cases. This ws Awards at events in Seattle and Washing- His attempts at gaining asylum were ini- reportedly the first case in which the law ton, D.C. in the coming weeks. NLGBT- tially rebuffed by British authorities who was applied. BBC News, Sept. 6. BA holds Out & Proud Corporate Counsel doubted his claim to be gay. Eventually, Serbia — A confrontation over a planned Receptions to give LGBT legal profession- LGBT political groups stepped up to bat Gay Pride demonstration in Belgrade was als a mechanism for honoring colleagues for him. Despite extensive pro-gay devel- heating up at the end of September, as the who are working to increase diversity in the opments in British law over the past de- National Security Council of the Parlia- corporate office and the community. cade, asylum claims are still treated with ment banned all public demonstrations Robert Lee Pitman, an openly-gay intense skepticism by British authorities, during the first weekend of October, on U.S. Magistrate Judge in Texas, has been who frequently claims that applicants are purported grounds of “national security” confirmed by the Senate to be the United merely claiming to be gay to gain asylum that probably reflected the violent anti-gay States Attorney for the Western District of in the U.K. protesters who materialized at last year’s Texas. Great Britain — The ruling coalition of Gay Pride demonstration, the first ever The New York City Anti-Violence Proj- the Conservatives and the Liberal Demo- held in the country. The mayor of Bel- ect honored Virginia Goggin, Coordinator crats has signaled that legislation to allow grade also released an appeal through the of the LGBT Law Project at the New York same-sex marriages in the U.K. will be on media for the event to be called off, but Legal Assistant Group, at its 15th Annual the table during the current government. Pride organizers vowed to hold their event Courage Awards on Sept. 22. The Courage Press reports on September 17 indicated as scheduled, pointing out that Serbia, as a Awards were established in 1997 to honor that “a consultation will begin next March party to the European Convention on Hu- outstanding individuals and organizations on allowing homosexuals to get married. man Rights, is obligated to protect freedom whose work on behalf of lesbian, gay, bisex- A change in the law will follow the con- of speech. ual and transgender communities has made sultation.” At present, same-sex couples Slovenia — Slovenia recently adopted a profound impact. can form civil partnerships that carry the a new Family Code that provided some Shelbi Day, who has worked as a staff legal rights of marriage, but are not autho- recognition and support for LGB families, attorney for the LGBT Advocacy Project rized to use the term “marriage” to describe sparking fervent opposition from a group of the ACLU of Florida, is moving to the their relationships. Same-sex marriages, calling itself Catholic Civil Initiative for Western Regional Office of Lambda Legal according to current proposals, would be Family and Children’s Rights, which gather in Los Angeles. Her relocation opens up a strictly civil events at Registry offices, with signatures in support of a repeal referen- staff attorney position at ACLU of Flor- no authorization for religious officiants dum. The Parliament voted to submit to the ida, which is actively seeking applications. to perform the ceremonies, even though Constitutional Court the question whether Those interested should submit a cover let- some denominations in the U.K. would be such an initiative would be lawful in the ter, c.v., and brief writing sample, preferably willing to do so. According to a report in event the Catholic organization gathered by email addressed to Randall C. Marshall, the Daily Mail, government ministers are enough signatures. The Catholic organiza- the Legal Director, at [email protected]. “determined to enact the change before tion threatened that if not allowed its re- Snail mail (not preferred) should be address the next election,” presumably to deprive peal initiative, it would start a new initiative to 4500 Biscayne Boulevard, Suite 340, Labor from being able to make anything campaign to amend the Slovenia constitu- Miami FL 33137-3227. A.S.L. out of the issue. (It seems inconceivable tion to embed anti-gay family principles in that Labor would criticize the other par- the nation’s fundamental laws, according to HIV/AIDS Legal ties for enacting a same-sex marriage bill, a report from Slovenia posted by ILGA- but they might criticize them for failing Europe. Notes to do so.) The newspaper reports indicated Thailand — The Office of National Hu- that Prime Minister David Cameron was man Rights Commission and the Sexual United Kingdom — Health ministers in firmly behind the proposal, as was Equali- Diversity Network are endorsing draft leg- England, Scotland, and Wales are agreed ties Minister Lynne Featherstone, a Liberal islation to afford marital status to same-sex that the existing policy banning blood do- Democrat, who made the public announce- relationships, and made a public proposal nations by gay men should be relaxed in ment about the proposal. to that end at the Asia Pacific Forum (of light of scientific advances in testing and Scotland — Terry Porter, a 19-year-old national human rights groups) held in knowledge about HIV. Under the existing soldier in the 2nd Battalion of the Royal Bangkok on Sept. 6. Nation (Thailand), rule, which closely followed a rule promul- Regiment of Scotland, was fined 350 Sept. 6. A.S.L. gated for the United States by the Food pounds by Sheriff Michael Fletcher for tar- and Drug Administration, sexually active geting Chloe Dow, a transsexual, with ver- Professional Notes gay men who had engaged in sex with bal abuse and threats of violence. The nor- another man since 1977 were disqualified mal breach of the peace fine would be 150 from donating blood for fear of HIV trans- pounds, but was enhanced because of the The National LGBT Bar Association is mission. Under the new regime, only men manifested prejudice against transsexuals. honoring the legal department of Micro- who have had sex within a year of the blood Porter had conceded that his conduct was soft and Deputy General Counsel Nancy collection drive would be disqualified. The motivated by Dow’s transgender status. A Herman of UnitedHealth Group with new rule is to take effect on November 7. law enacted in March 2010 authorized the their Out & Proud Corporate Counsel BBC News, Sept. 8. 220 October 2011 LESBIAN/GAY LAW NOTES

United States — U.S. Representative CLE credit in New York, California, Il- Dolovich, Sharon, Strategic Segregation Barbara Lee has introduced the Repeal linois, and New Jersey. For question or to in the Modern Prison, 48 Amer. Crim. L. HIV Discrimination Act, a measure calling register by phone, call 212-382-6663. Rev. 1 (Winter 2011). for review of all federal and state laws, poli- Fetter-Harrott, Allison, Recognition of cies, and regulations regarding the crimi- CLE on The Impact of Marriage Equality in Same-Sex Marriage and Public Schools: Im- nal prosecution of individuals for HIV- New York — LeGaL presents a CLE pro- plications, Challenges, and Opportunities, related offenses. The measure is intended gram at the LGBT Community Center in 2011 B.Y.U. Educ. & L.J. 237 (2011). to prompt rethinking of laws in 34 states New York on Tuesday, November 1, 2011, Holtzman, Mellisa, Family Definitions and 2 U.S. territories that make exposure from 6 to 8 pm, providing a discussion by and Children’s Rights in Custody Decision to HIV or non-disclosure of HIV status a experience practitioners in fields affected Making: The Importance of a Changing Liti- crime and, in some cases, impose draconian by the advent of legal same-sex marriage gation Context, 49 Fam. Ct. Rev. 591 ( July prison sentences for violations. in New York: Erica Bell, Carol Buell, Joyce 2011). United States — In the ongoing federal Kauffman, Eric Wrubel, and Gregory L. Kindregan, Charles P., Jr., Learning budget wars between the Democrat-con- Matalon. For information about registra- From History: The Federal Union and Mar- trolled Senate and the Republican-con- tion, call 212-353-9118. riage, 20 S. Cal. Rev. L. & Soc. Just. 67 trolled House, the Senate Appropriations (Winter 2011). Committee has thrown down the gaunt- LGBT & RELATED ISSUES Kubasek, Nancy, Christy Glass & Kate let to House Republicans on HIV-related Cook, Amending the Defense of Marriage funding, voting to maintain the level of Besunder, Alison Arden, Closing the Gap: Act: A Necessary Step Toward Gaining Full funding for domestic HIV/AIDS program Same-Sex Estate Planning Following the Legal Rights for Same-Sex Couples, 19 Am. and even provide a small increase to the Marriage Equality Act, New York Law U. J. Gender Soc. Pol’y & L. 959 (2011). AIDS Drug Assistance Program (ADAP), Journal, September 19, 2011, S2 (part of Lwin, Michael, Big Love: Perry v. which assists people living with HIV special section on estate planning). Schwarzenegger and Polygamous Marriage, 9 without means to purchase drugs to ob- Bosse, Kary, Book Review, A Review Georgetown J. L. & Pub. Pol’y 393 (Sum- tain medication. This effort evoked mainly of Brock Thompson’s The Un-Natural State: mer 2011). disappointment from the AIDS Institute, Arkansas and the Queer South, 7 Modern Monjeau, Caitlin J., All Politics Is Local: which found in a Sept. 22 press release that American 59 (Spring 2011). State Preemption and Municipal Sex Offend- existing funding levels are inadequate given Brodzinsky, David M., and Adam Pert- er Residency Restrictions in New York State, the scope of the epidemic and the public man, Adoption by Lesbians and Gay Men: A 91 Boston Univ. L. Rev. 1569 (July 2011). education challenges of trying to stem the New Dimension in Family Diversity (2011: Nelson, Marisa, The IRS Moves Toward spread of new infections. On the other Oxford University Press) (anthology on Income Tax Equality for Same-Sex Couples hand, it is expected that House Republi- historical, legal, sociological, psychological, Despite DOMA, 45 U.S.F. L. Rev. 1145 cans will propose cuts in HIV/AIDS pro- social casework and personal issues realted (Spring 2011). grams to help fund continuing tax breaks to adoption by sexual-minority individuals Palmer, Vernon Valentine, Three Mile- for corporations and the wealthy, so per- and couples). stones in the History of Privacy in the United haps little more could have been expected Candeub, Adam, and Mae Kuykendall, States, 26 Tul. Euro. & Civ. L Forum 67 from Senate Democrats. A.S.L. Modernizing Marriage, 44 Univ. Mich. J. L. (2011) (The last milestone is the constitu- Reform 735 (Summer 2011). tionalization of privacy through the Due PUBLICATIONS Carleton, Jennifer Lynn, Life, Liberty, Process Clause). and the Pursuit of Matrimony: The Constitu- Raj, Shannon, Deliberately Strengthening NOTED & tional Implications of Arkansas’s “Amendment Our Raeding of “Deliberate Indifference”: A ANNOUNCEMENTS Concerning Marriage,” 64 Ark. L. Rev. 383 Call to Re-Interpret School Liability for Peer (2011). Bullying Under Title IX, 10 The Dukemi- Cullinane, Karen, Protecting Anonymous nier Awards 123 (2011). CLE on Defense of Marriage Act Litiga- Expression: The Internet’s Role in Washington Randall, E. Vance, Same-Sex Marriage tion — The NYC Bar Association and State’s Disclosure Laws and the Direct De- and Education: Implications for Schools, Stu- LeGaL are cosponsoring a CLE program mocracy Process, 44 Univ. Mich. J. L. Reform dents, and Parents, 2011 B.Y.U. Educ. & titled “Defense of Marriage Act Litigation: 947 (Summer 2011). L.J. 385 (2011). Strategy, Tactics & Theory,” on Thursday, Curtis, Skylar, Reproductive Organs and Russo, Charles J., Respect for Me But Not October 20, 2011, from 6 to 8 pm at the Differences of Sex Development: The Consti- for Thee: Reflections on the Impact of Same- City Bar. The panel will inclue Roberta Ka- tutional Issues Created by the Surgical Treat- Sex Marriage on Education, 2011 B.Y.U. plan and James Esseks, counsel for Edith ment of Intersex Children, 42 McGeorge L. Educ. & L.J. 471 (2011). Windsor in her pending DOMA challenge Rev. 841 (2011). Southam, Keith, Who Am I and Who Do in the S.D.N.Y. court, Paul Smith, who Dempsey, Brian, Gender Neutral Laws You Want Me To Be? Effectively Defining a argued Lawrence v. Texas in the Supreme and Heterocentric Policies: “Domestic Abuse as Lesbian, Gay, Bisexual, and Transgender So- Court, and Kenji Yoshino, NYU Law Pro- Gender-Based Abuse” and Same-Sex Couples, cial Group in Asylum Applications, 86 Chi.- fessor and leading theorist on LGBT con- 15 Edinburgh L. Rev. 381 (2011). Kent L. Rev. 1363 (2011). stitutional issues. The program qualifies for LESBIAN/GAY LAW NOTES October 2011 221

Stern, Nat, The Subordinate Status of on public health efforts to stop the spread Negative Speech Rights, 59 Buff. L. Rev. 847 of sexually-transmitted diseases of laws re- (Aug. 2011)(considers status of right not to stricting discussion of prostitution); Susan be compelled by government to speak, in Deller Ross, Should Polygamy Be Permitted the wake of Christian Legal Society v. Mar- in the United States?; David J. Garrow, The tinez). Legal Legacy of Griswold v. Connecticut. Strasser, Mark, Parents, Religious Con- The annual publication of the Dukemi- victions, and Public School Curricula, 2011 nier Awards selects “Best Sexual Orienta- Brigham Young Univ. Ed. & L. J. 547. tion and Gender Identity Law Review Ar- Terry, Keeva, Same-Sex Relationships, ticles” each year. The volume for 2010 has DOMA, and the Tax Code: Rethinking the been released, collecting three articles pub- Relevance of DOMA to Straight Couples, 20 lished during 2010: Sharon M. McGowan, Colum. J. Gender & L. 383 (2011). Working With Clients to Develop Compatible Thro, William E., The Heart of the Con- Visions of What It Means to “Win” a Case: stitutional Enterprise: Affirming Equal- Reflections on Schroer v. Billington, origi- ity and Freedom in Public Education, 2011 nally published in 45 Harv. C.R.-C.L. L. B.Y.U. Educ. & L.J. 571 (2011). Rev. 205 (2010); Courtney G. Joslin, Pro- Weddle, Daniel B., and Kathryn E. New, tecting Children(?): Marriage, Gender, and What Did Jesus Do? Answering Religious Assisted Reproductive Technology, originally Conservatives Who Oppose Bullying Preven- published in 83 S. Cal. L. Rev. 1177 (2010); tion Legislation, 37 New Eng. J. on Crim. Catherine E. Smith, Equal Protection for & Civ. Confinement 325 (Summer 2011). Children of Gay and Lesbian Parents: Chal- lenging the Three Pillars of Exclusion — Le- Specially Noted: gitimacy, Dual-Gender Parenting, and Biol- ogy, originally published in 28 Law & Ineq. Michael Kirby, formerly a justice of the 307 (2010). The publication also includes High Court of Australia and the first open- a UCLA law student note: Shannon Raj, ly gay man in the world to serve as a justice Deliberately Strengthening Our Raeding of of the highest court of a nation, has writ- “Deliberate Indifference”: A Call to Re-Inter- ten his memoirs. The book, titled “A Private pret School Liability for Peer Bullying Under Life: Fragments, Memories, Friends,” is Title IX, 10 The Dukeminier Awards 123 published by Allen & Unwin, an Austra- (2011). lian publisher, released at the beginning of October. A lengthy excerpt concerning Jus- EDITOR’S NOTE: tice Kirby’s relationship with his longtime partner, Johan van Vloten, was excerpted in the September 24 issue of Australian Mag- All points of view expressed in Lesbian/ azine, which is available on Westlaw, 2011 Gay Law Notes are those of identified WLNR 19197431. writers, and are not official positions of the The Spring 2011 issue of Human Rights Lesbian & Gay Law Association of Great- (Vol. 38, No. 2), the journal published by er New York or the LeGaL Foundation, the Section of Individual Rights and Re- Inc. All comments in Publications Noted sponsibilities of the American Bar Associa- are attributable to the Editor. Correspon- tion, focuses on Sex and the Law, includes dence pertinent to issues covered in Les- the following articles of particular interest bian/Gay Law Notes is welcome and will with regard to sexuality law: Nancy Nor- be published subject to editing. Please ad- thup, Estranged Bedfellows: Sexual Rights dress correspondence to the Editor or send and Reproductive Rights in U.S. Constitu- via e-mail. tional Law; Patrick Malone & Monica Rodriguez, Comprehensive Sex Education vs. Abstinence-Only-Until-Marriage Pro- grams; Clay Calvert, Evolving Technologies Challenge Laws Regarding Sexually Explicit Speech; Aziza Ahmed & Beri Hull, Sex and HIV Disclosure; Bethany Stevens, Structural Barriers to Sexual Autonomy for Disabled People; Heather Doyle, What You Can’t Say Might Hurt You (concerning adverse impact