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04/19/2007


Tuesday Morning Speed Read: Darrin Gayles, Staci Yandle, SCOTUS, Indiana, Uganda, Mike Michaud

BY LISA KEEN / Keen News Service

NOMINEE HEARING TODAY:

President Obama’s openly gay African American nominee for the U.S. District Court in Miami goes before the Senate Judiciary Committee this morning. A Committee spokesperson said both of Florida’s senators have indicated they support state circuit court Judge Darrin Gayles.  President Obama dropped another openly gay African American nominee for Miami in January after Senator Marco Rubio objected to the nomination.

YandleLESBIAN NOMINEE GRILLED:

President Obama’s nomination of openly lesbian African American Staci Yandle for the U.S. District Court in southern Illinois was up for a Committee vote last Thursday. But the committee held over her nomination and that of four others in a group of 10. Her nomination is now slated for a committee vote this Thursday.

REWRITING WINDSOR?

Two Republican members of the Senate Judiciary Committee submitted questions in writing for federal court nominee Staci Yandle. Senator Charles Grassley grilled her over how she would interpret the Supreme Court’s ruling in U.S. v. Windsor, which overturned DOMA. Several LGBT legal activists said Grassley’s goal seemed to be to promote a narrow interpretation of Windsor. “They are trying to get her to say that the federalism discussion in Windsor means that the federal courts should not strike down state marriage bans – that they don’t have the authority to do so,” said GLAD Civil Rights Director Mary Bonauto.  Evan Wolfson, head of the national Freedom to Marry, noted that Grassley “chose not to ask about the explicit passages in the [Windsor] decision making clear that the ruling turned on equal protection, not federalism.” Lambda Legal’s Eric Lesh said Grassley has made the Windsor questions a routine line of inquiry for all federal court nominees now.

ElanephotographySUPREME BYPASS:

The U.S. Supreme Court, for two weeks in a row, has given no indication of whether it will hear a New Mexico dispute pitting New Mexico’s non-discrimination law against a commercial photographer’s claim that she has a First Amendment right to deny public accommodations to a same-sex couple based on her religious beliefs. The photographer filed Elane Photography v. Willock in November. The case was on the relatively short lists for the justices to discuss in private conference March 21 and 28. But on the subsequent Mondays, when the court announced which cases it would and would not take, Elane was not mentioned. The next conference is April 4.

IndianaSEEKING RELIEF IN INDIANA:

Lambda Legal on Monday filed an emergency motion in federal district court seeking an order that would allow a lesbian couple’s marriage to be recognized by Indiana. In the motion, Lambda adds couple Niki Quasney and Amy Sandler to the plaintiffs in its Baskin v. Bogan lawsuit challenging the state’s ban on same-sex couples marrying. Quasney and Sandler were married in Massachusetts last August. Quasney has late-stage ovarian cancer and is concerned that, without a court order to recognize their marriage, their children will be “denied important benefits” upon Quasney’s death and Sandler will be considered a legal stranger.

UGANDAN CHILDREN IN SONG:

Thousands of people turned out yesterday in the capital city of Uganda to stage a “thanksgiving” celebration for President Yoweri Museveni’s signing of the Anti-Homosexuality Act in February. According to an Associated Press report, many in the crowd were schoolchildren “who sang and danced to anti-gay tunes that also railed” against U.S. and European countries.

HRC STAFFER JOINS MICHAUD CAMPAIGN:

The Human Rights Campaign’s associate director of communications, Dan Rafter, left that organization to take over Monday as communications director for U.S. Rep. Mike Michaud’s gubernatorial campaign in Maine.


Obamacare, Religious Exemptions, and Gay Rights: Hobby Lobby at the Supreme Court Today

By ARI EZRA WALDMAN

SupremesToday, the Supreme Court is hearing arguments in a case about Obamacare. The last time that happened, the Court determined by a bare 5-4 majority that the so-called individual mandate, the requirement that everyone has to buy health insurance or pay a tax, was constitutional. Now, the Court is considering whether corporations can refuse to provide insurance plans that include contraception if doing so would violate the religious beliefs of those corporations' owners.

This matters, not just to those of us in need of health care and not just to those of us who work for companies run by religious people. It matters to all LGBT Americans because the scope of this particular religious exemption could affect the scopes of other religious exemptions.

The cases -- Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius -- will determine the breadth of the religious exemption from Obamacare. Unfortunately, the pretext of religious freedom has gained much traction of late in justifying continued discrimination. And this Court's conservative majority has set itself up to strike a blow against equality.

AFTER THE JUMP, I will construct the argument I expect the Court's conservatives will use to expand the religious exemption. I will show how that argument is deeply flawed. And then I will show how dangerous it is for the LGBT community.

Continue reading "Obamacare, Religious Exemptions, and Gay Rights: Hobby Lobby at the Supreme Court Today" »


Michigan's Marriage Equality Ruling: A Summary and Analysis

BY ARI EZRA WALDMAN

On Friday, District Judge Bernard Friedman, a Reagan appointee to the bench, declared Michigan's ban on same-sex marriage unconstitutional (read the opinion here). As I have argued several times during this unprecedented string of marriage equality rulings in the lower federal courts, the decision seems almost routine: a state's ban on gays marrying violates equal protection because it treats similarly situated persons differently for no legitimate reason.

FriedmanThe state tried to argue the standard, yet hopeless case--namely, that the ban promotes the "optimal child-rearing environment," allows the state to "proceed with caution" in an area of great social change, and expresses the collective "tradition and morality" of the citizens of the state.

In response, the court said two things in response: First, that some of these reasons are not even legitimate state goals, and, second, even if they all are, banning gays from marrying is so unrelated to these ostensible goals that the ban makes no sense.

We've heard these arguments before. And we've seen then struck down before, in states as different as Massachusetts (back in 2004) and in Utah ten years later.

What was unique about this decision is that, like Judge Vaughn Walker's decision in August 2010 striking down California's ban on same-sex marriage, it followed a trial, with witness testimony and cross examination. That hasn't happened all that often since we began this fight. And despite the benefits to our cause, i.e., putting truth on the record, it may happen even less often going forward because the Supreme Court's decision in Windsor made trials unnecessary.

Below, I briefly summarize the Michigan case and flesh out the argument that full trials, though a boon for our side, are being made superfluous by Windsor.

CONTINUED, AFTER THE JUMP...

Continue reading "Michigan's Marriage Equality Ruling: A Summary and Analysis" »


The Real Reason Arizona's Anti-Gay Discrimination Bill Was So Bad

Press_brewer

BY ARI EZRA WALDMAN

When Arizona Governor Jan Brewer vetoed an odious discrimination bill that would have allowed private individuals and companies to deny service to and otherwise discriminate against gay persons, most people breathed a collective sigh of relief. Many Republicans were happy to erase this stain from their brand, though conservatives in several states have other plans. Most Americans were just happy Jim Crow was not coming back.

Not everyone was so pleased. The right wing was, of course, up in arms. But few of us spend much time worrying about what Michelle Bachmann or Rush Limbaugh think. Then there was George Will, a conservative commentator without the Hellfire that rises from much of today's extreme right. Mr. Will coats his comments with his particular brand of amiability and an aw-shucks attitude in a bow tie. But his words were the most malicious.

WillHere's what he said in reaction to the veto:

It's a funny kind of sore winner in the gay rights movement that would say, 'A photographer doesn't want to photograph my wedding -- I've got lots of other photographers I could go to, but I'm going to use the hammer of government to force them to do this.'... It's not neighborly and it's not nice. The gay rights movement is winning. They should be, as I say, not sore winners.

He characterizes us as winners, which is both a half-truth and red meat for his conservative audience. We have not won anything. Sure, we are racking up notable victories, but you can still be fired in 29 states simply for being gay and I cannot marry the man I love in 33 states. Yet arguing that the fight is already over heightens the feverish paranoia of his readers and listeners; that is, he is warning conservatives that the gays already took marriage away from you and now they're coming for something more.

He also characterizes gays as childish, as ungrateful "sore winners" who do not know how to be neighborly, mature, and adult about things. This may sound peevish and petty, but it also fits within a long standing conservative narrative about gay people as unserious, untrustworthy, small, and entirely hedonistic, just like children.

Mr. Will's greatest sin, however, is in his offensive misconstrual of the substantitive fight. To him, we have a choice between this or that photographer -- "I've got lots of other photographers I could go to" -- suggesting that mere choice is the paradigm for equality. This is the grave error libertarians commit, as well. Equality is barely half a loaf if its pinnacle is the ability to choose. True equality is also about equal dignity, about not being treated like a second-class citizens simply because of who you are. Avoiding state sanctioned discrimination because you may have another choice does not change the underlying fact of discrimination.

CONTINUED, AFTER THE JUMP...

Continue reading "The Real Reason Arizona's Anti-Gay Discrimination Bill Was So Bad" »


Judith Levy Confirmed as U.S. District Judge, is First Out Gay Person on Federal Court in Michigan

Judith Levy, nominated in July by President Obama, has been confirmed to the U.S. District Court for the Eastern District of Michigan in a 97-0 vote, the Washington Blade reports:

LevyLevy, who was approved by the Senate Judiciary Committee in January, has been an assistant U.S. attorney in the Eastern District of Michigan since 2000 and chief of the civil rights unit for that office over the past three years. The American Bar Association gave her a rating of “unanimously qualified.”

According to her questionnaire, Levy has been a member of the Human Rights Campaign from 2001 to present and is board member for DOJ Pride, the affinity group for LGBT employees at the Justice Department. She’ll become the first openly LGBT person to serve on federal court in Michigan.

Gay Politics adds:

Prior to her appointment, Levy served as the director of the University of Michigan’s Law School’s Public Interest/Public Service Faculty Fellows. She also served as the Assistant U.S. Attorney in Eastern Michigan since 2000 and was the Chief of the Civil Rights Unit since 2010.


A Win for Marriage Equality in Texas: Summary and Analysis

By ARI EZRA WALDMAN

A federal judge in Texas issued an opinion today declaring that the state's refusal to allow gays to marry violates the federal constitution. At its core, this case -- De Leon v. Perry -- looks a lot like some of our other recent federal marriage equality cases. Some have been broader than others, but most, like De Leon, make two conclusions: First, that denying gays the right to marry violates the Due Process Clause because marriage is an important right that cannot be taken away light and, second, marriage discrimination violates the Equal Protection Clause because a state cannot treat opposite-sex and same-sex couples differently for no good reason.

3_texasJudge Garcia's decision is notable for several reasons. I will highlight two here at the outset. First, he does not dive into the heart of the level of scrutiny debate. He is content to say that marriage discrimination cannot even pass a low rational basis test. Second, he gives us a law nerd moment that students of gay rights will read for years to come to show how one case leads to the next which leads to the next and so on. Without Windsor, this case would look very different; without Lawrence, we wouldn't have gotten Windsor. And without Romer, we wouldn't have gotten Lawrence. As Judge Garcia writes:

Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution.

And how does he know that and that it applies to the notoriously marginalized LGBT community? Judge Garcia continues:

Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).

Given that, the unconstitutionality of Texas's discriminatory statute seems pretty clear.

CONTINUED, AFTER THE JUMP...

Continue reading "A Win for Marriage Equality in Texas: Summary and Analysis" »


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