Feminist Law Professors

Today, the Arkansas Supreme Court struck down as unconstitutional a 2008 ballot initiative that banned adults “cohabiting with a sexual partner” outside of a different-sex marriage from being foster or adoptive parents. The court found that the law violated the right to privacy under the Arkansas Constitution–in essence, you have to choose between being able to engage in an intimate sexual relationship in the privacy of your home and being a foster or adoptive parent. For the ACLU press release, click here. For a copy of the decision, click here.

-Tony Infanti

From the FLP inbox: The Williams Institute has come out with a new research brief that examines eleven different studies to come up with an estimate of the number of LGBT persons in the United States. Here are the key findings:

• An estimated 3.5% of adults in the United States identify as lesbian, gay, or bisexual and an estimated 0.3% of adults are transgender.
• This implies that there are approximately 9 million LGBT Americans, a figure roughly equivalent to the population of New Jersey.
• Among adults who identify as LGB, bisexuals comprise a slight majority (1.8% compared to 1.7% who identify as lesbian or gay).
• Women are substantially more likely than men to identify as bisexual. Bisexuals comprise more than half of the lesbian and bisexual population among women in eight of the nine surveys considered in the brief. Conversely, gay men comprise substantially more than half of gay and bisexual men in seven of the nine surveys.
• Estimates of those who report any lifetime same-sex sexual behavior and any same-sex sexual attraction are substantially higher than estimates of those who identify as LGB. An estimated 19 million Americans (8.2%) report that they have engaged in same-sex sexual behavior and nearly 25.6 million Americans (11%) acknowledge at least some same-sex sexual attraction.

-Tony Infanti

With April 15 quickly approaching, married same-sex couples are once again finding it necessary to fill out two “single” tax returns to submit to the federal government. For those who find it offensive to be forced on annual basis to act as if the legal recognition of their relationship did not exist (and count me in that group), check out this page at refusetolie.org.

Click here for a New York Times story on the site.

-Tony Infanti

H/T to Francine Lipman

This weekend I participated in Harvard Lambda’s 6th Annual Legal Advocacy Conference. The title of the conference was “Queering Age: Exploring the Lived Experiences of LGBT Youth and Elders.” They had a great set of panels with a mix of advocates, activists, and academics. Kudos go to Harvard 2Ls Hilary Thrasher and Danielle Purifoy for all of the hard work that they put into organizing the conference. The conference web site is here, for anyone who wishes to take a look at the list of panels.

Perhaps the thing that moved me the most during the conference was this video, which Christine Sun from the ACLU showed during the panel on “Youth in Schools: Bullying and Discrimination in the School Environment.” I will warn you ahead of time that it is quite disturbing as it deals with the suicide of Seth Walsh as a result of persistent anti-LGBT bullying in school and features his mother telling their story:

(Because WordPress keeps deleting the video every time I update the post to try to include it (it shows up just fine on my computer before I publish the post to the web!), here is a link to the video.)

-Tony Infanti

The New York Times is running a story about how “a resurgent social conservative movement is shaping the first stage of the presidential nominating contest, complicating the strategy for candidates who prefer to focus on fiscal issues over faith.” Readers of this blog already know that the focus for the GOP has never really strayed from “social issues” (check out these posts from earlier this year–here, here, and here). It may just be that the Iowa caucuses are drawing this far out enough in the open to catch the mainstream media’s attention.

Or maybe it’s just drawing out GOP presidential hopefuls and emboldening them to say crazy things that even the mainstream media don’t seem to have picked up on. For example, one item that has been making its way around the gay blogosphere is a clip from a speech by Mike Huckabee in which he calls for “spiritual warriors” to fight those who would “enslave us” and encourages people to fight against same-sex marriage even if it means losing their jobs. And the election season has only just begun…

-Tony Infanti

It is unclear whether the decision is a direct result of the fiasco last year when the university rescinded an offer to Jodi O’Brien to become dean of the college of arts and sciences. Marquette rescinded to the offer to O’Brien, a lesbian, because of “concerns relating to Marquette’s ‘Catholic mission and identity’ and their incompatibility with some of O’Brien’s scholarly writings.”

The university is still working out the details of the benefits. A word to the wise for the faculty and staff at Marquette–keep a close eye on those details! When my own university began offering domestic partner benefits several years ago, it used a very old and outdated standard for extending benefits that had been in place for library privileges, etc. It took some work, but the standard was brought closer in line with that of other universities and private employers in the area.

-Tony Infanti

The Toronto Star is reporting that, with likely upcoming elections, the Canadian Immigration Minister is “warming” to the LGBT community after last year’s off-putting decision to exclude gay rights history from an updated version of the country’s citizenship guide. Not only was that section restored to the latest edition of the guide, but the Immigration Minister has now announced a pilot project to help LGBT refugees:

Through the project, Citizenship and Immigration Canada will work with the Rainbow Refugee Committee to share the cost of sponsoring gay, lesbian, transgender, transsexual and bisexual refugees overseas to Canada.

The department will provide $100,000 in assistance to cover three months of income support for the refugees upon their arrival here, while the Rainbow committee will offer orientation services, accommodation, food and other basic needs.

“These funds are a welcome first step in response to the crisis facing lesbian, gay, bisexual and transgender (LGBT) people around the globe, at a time when 77 countries continue to criminalize homosexuality and five prescribe the death penalty,” said Helen Kennedy, executive director of Egale Canada, the country’s largest LGBT human rights organization.

Can you imagine a program like this ever being proposed in the United States–or, if it were, what the reaction would be?

-Tony Infanti

My earlier post on the recent poll on same-sex marriage got me thinking. I decided to do a little digging to see how the issue of denying same-sex couples access to marriage has been phrased and particularly whether the word “illegal” has been used to describe same-sex marriage in states that do not legally recognize same-sex relationships. In particular, I took a quick look back to see how people spoke of the wave of marriage licenses that were issued in San Francisco, Oregon, and New York in 2004 as well as of Mitt Romney’s decision to enforce a 1913 law prohibiting marriages in Massachusetts by out-of-state couples if their home state would not permit the marriage.

Here are some excerpts from news reports of these events:

Mr. Romney’s actions are based on his interpretation of a 1913 law which says that the state cannot issue marriage licenses to couples if the marriage would be illegal in their home state. Mr. Romney has concluded that because no other state allows gay marriage, only Massachusetts residents, or people who intend to move to the state, can receive marriage licenses.

(emphasis added; from the New York Times)

In New York, the mayor of New Paltz, Jason West, solemnized the weddings of about 25 same-sex couples, even though the state health department refused to grant them marriage licenses. Mr. West postponed a second round of weddings after the state’s attorney general, Eliot Spitzer, issued a legal opinion saying that gay marriage is illegal, but that the state’s marriage laws raised ”serious constitutional concerns.”

(emphasis added; from the New York Times)

Lockyer posted a statement on his Web site saying that it was “the duty of my office to defend that law against this challenge by the City and County of San Francisco, and allow the courts to determine whether the city has acted illegally.”

(emphasis added; from CNN)

In town, West waves and is glad-handed by restaurant owners and shopkeepers, who have gotten over their initial fears that he might ban capitalism — and he is now even semi-memorialized: on the day in early March when he was ordered to appear in court on charges of illegally marrying gay couples, the Gilded Otter, the local brewery, was selling Get Out of Jail Ale.

(emphasis added; from the New York Times)

All sides in the debate expect to appeal portions of the ruling, which is expected to land in front of the Oregon Supreme Court.

In the motion filed Thursday, state officials are asking Bearden to allow them to hold off on recording marriages that eventually may be determined illegal.

(emphasis added; from the Portland Oregonian, May 7, 2004)

Multnomah County is continuing to issue licenses to same-sex couples. The county took that step on the advice of its county counsel and before Myers’ opinion that said same-sex marriages are illegal under state law and that banning such unions is probably unconstitutional.

(emphasis added; from the Portland Oregonian, March 24, 2004)

Newsom’s attempt to turn San Francisco into a test case on the issue came two days before a scheduled rally in the city by gay marriage advocates and three days before Assemblyman Mark Leno (D-San Francisco) plans to introduce legislation that would legalize gay marriage in California. Gay rights advocates applauded Newsom’s directive, which appeared to position San Francisco as the first local government to move forward on the issue without a state mandate.

* * * *

Opponents of gay marriage called the plan illegal and politically unwise outside the liberal bubble of the Bay Area.

(emphasis added; from the Los Angeles Times, Feb. 11, 2004)

And here are some from opponents of same-sex marriage:

A national legal organization has scheduled a news conference for 3 p.m. Friday to announce a lawsuit against San Francisco and certain city officials for violating state law and allowing the “marriage” of same-sex couples in illegal ceremonies on Thursday.

(emphasis added; Alliance Defense Fund)

A California state judge entered a cease and desist order today against the mayor, the county clerk, and San Francisco to stop issuing illegal “marriage” licenses to same-sex couples.

(emphasis added; Alliance Defense Fund)

ADF attorney Robert Tyler, also representing petitioners in this original action, said his clients support state law and believe it is wrong for the clerk to violate the law.  “We’re seeking an order to direct the clerk to comply with the state constitution and California law as it stands and to stop issuing illegal marriage licenses.  These licenses do not comply with state law and are not valid or legal.”

(emphasis added; Alliance Defense Fund)

Mathew Staver, President and General Counsel of Liberty Counsel, stated, “Mayor Newsom has lost his mind. The Mayor obviously believes he is above the law. In 2000, the people of California overwhelmingly passed Proposition 22, which limits marriage to one man and one woman. Government officials, including even the Mayor of San Francisco, must obey the law. We are a nation ruled by law, not by power hungry, renegade, radical activists.” Staver continued, “Newsom’s letter is the latest attempt to advance his radical gay agenda. What Mayor Newsom did is reprehensible and illegal. Such blatant disregard for the will of the people of California cannot go unpunished. We are confident that the Court will rein in this out-of-control Mayor.”

(emphasis added; Liberty Counsel)

Mayors are no longer issuing symbolic same-sex marriage licenses. When San Francisco Mayor Gavin Newsom began doing so, we sued him. We then sued New Paltz, New York, Mayor Jason West when he followed Newsom’s example. Now both mayors have court orders barring their illegal activity.

(emphasis added; Liberty Counsel)

So much for claiming that the framing of that poll question skewed the responses.

-Tony Infanti

The Ninth Circuit has summarily decided to leave a stay in place while it considers an appeal of Judge Vaughn Walker’s ruling that California’s Prop. 8 is unconstitutional. On a related note, it’s worth checking out Leonard Pitts Jr.’s column on a recent Washington Post/ABC News poll that shows for the first time a slim majority of Americans approve of allowing same-sex couples to marry. Pitts quite rightly questions the assumption behind this poll–that it is acceptable to put some people’s rights up for a majority vote. The poll was apparently criticized by opponents of same-sex marriage because of the framing of the question that got this response:

Opponents of same-sex marriage took issue with the poll, which asks respondents: “Do you think it should be legal or illegal for gay and lesbian couples to get married?” Brian Brown, president of the National Organization for Marriage, argued that the term “illegal” could be inferred to mean that violators could be imprisoned, which most Americans would consider harsh.

Well, what would you call it when you pass laws and constitutional amendments stripping recognition from relationships that are recognized by other states? I wonder what nice euphemism they would use to describe the wholesale erasure of families from the legal landscape? (And, it is worth noting, that this same phrasing has been used in this poll since 2003.)

-Tony Infanti

In another instance of repeated antigay bullying, the ACLU of Florida announced yesterday a settlement with the Flagler County School District in a case of a student who had been bullied and harassed by other students and by a teacher. From the ACLU press release:

Herbert, a 15-year-old freshman, had been bullied and threatened by fellow students at school and on Facebook and was physically attacked at school by another student who regularly taunted him with anti-gay slurs. Although Herbert reported several instances of bullying and harassment to school officials, the bullying and harassment got worse.

“I reported the bullying to the administration but it never seemed to change anything. I felt alone and it made me stop wanting to go to school,” said Herbert. “My breaking point came when one of my teachers started telling anti-gay jokes and mocking me in front of the entire class.”

A story on Advocate.com reports that the teacher had told the student that he could not put his soda in the same refrigerator as the other students or they would turn gay and also mockingly imitated him.

Among the actions that the school district agreed to take in the settlement of this case was to have the teacher who bullied this student make a public apology. The question is whether that is punishment enough for a teacher’s abuse of his position of power over his young and impressionable students. I think not.

-Tony Infanti

There has been a bit of buzz (e.g., here, here, and here) about an amendment that Rep. Barney Frank proposed to a House Financial Services Committee measure regarding aid to countries that physically persecute LGBT persons. Much of what is notable about the amendment is that it actually passed and was tacked onto the larger bill setting budget priorities for the year with regard to, among other things, funding of the Treasury Department and the World Bank.

The text of the amendment reads:

“The Committee urges Treasury to advocate that governments receiving assistance from the multilateral development institutions do not engage in gross violations of human rights, for example, the denial of freedom of religion, including the right to choose one’s own religion, and physical persecution based on sexual orientation or gender identity.“

(The emphasis is mine, for reasons that will soon become clear.) This may be a nice sentiment–and I’m sure that including religion didn’t hurt in getting this sentiment passed out of committee–but that’s about it. The amendment imposes no actual restrictions on aid to these countries and is really no more than hortatory–notice the italicized words “urges” and “advocate.”

Instead of urging “multilateral development institutions” to refrain from funding countries that engage in physical persecution of LGBT persons, wouldn’t it have been better to propose an amendment that prohibits U.S. foreign aid from going to such countries?  A quick look at this table from the Census Bureau shows increasing amounts of aid during the 2000s to Uganda, which Rep. Frank cites in his press release as an example of a country where physical persecution of LGBT persons has been occurring. Why aren’t we doing anything about the money that we provide such countries directly?

And why limit our advocacy to just countries that engage in physical persecution of LGBT persons–especially when the mention of religion is not so limited? Or would that make us look too hypocritical given how we treat our own LGBT citizens?

-Tony Infanti

If you think that my last post described disturbing/outrageous events, take a look at this video:

Hate Crimes Still Happen

-Tony Infanti

There have been disturbing reports of “a pattern of bullying, harassment and discrimination against gay and lesbian students on campus” at a Southern California high school.

In a cross between Harry Potter and the Scarlet Letter, one student reported that a teacher wrote the letter “S” on her hand “repeatedly referred to the student, who was wearing a T-shirt that read ‘Gay is Good,’ as a sinner throughout class, according to a complaint with the district provided by a teacher.”

In another incident, the school’s GSA was “was forbidden last fall from sharing information during the school announcements about Gay, Lesbian, Bisexual and Transgender History Month.” The students in the GSA, who wanted to “share information about prominent gay people,” were told that no announcements regarding any history month were permitted. “Then the Black Student Union did similar announcements during Black History Month in February.”

And one student who has been openly gay since his freshman year has been the subject of repeated bullying and harassment.

When a student with whom he’d had exchanges in the past uttered a gay slur at him during math class last fall, Andrew said he’d had enough. The two had an argument that resulted in Andrew’s suspension, he said.

After a second exchange with the student in December, which again began with the classmate using a gay slur, Andrew said he also was suspended. He learned he would face expulsion and was kicked off the school’s cheerleading squad. Andrew says the other student was not removed from a similar extracurricular activity or suspended.

Andrew acknowledges he used bad language but said he and the other student should have been disciplined equally.

The school district has taken some steps to address the problems–holding antibullying assemblies and encouraging students to intervene if they see bullying–but, with what looks like a pattern of bullying and harassment that includes both teachers and students, it appears that the complaints that the school district has not done nearly enough to change the anti-LGBT climate at the school have merit.

-Tony Infanti

The bill to extend the right to marry to same-sex couples in Maryland died in the legislature there today. Debate over the bill in the state House of Delegates ended without taking a vote. In fact, in a step backwards, the bill was sent back to committee. With the current legislative session ending next month, the issue will not be taken up again until next year. The bill had, however, gotten further than ever before–having passed the Senate and made it out of committee in the House.

Had the bill come up for a vote, it was expected that the vote would have been close, and some said that the bill would have been a vote shy of passage. But, by sending the bill back to committee, the legislators were able to avoid putting themselves on the record on this issue. This might not be the most courageous thing to do, but then:

“Not exactly profiles in courage,” said Brown, of the National Organization for Marriage. The organization had pledged $1 million to defeat Republicans who supported the legislation and help reelect Democrats who opposed it.

-Tony Infanti