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7th Circuit Hears Challenges To Same-Sex Marriage Bans in Indiana and Wisconsin: LISTEN

Chi

The 7th Circuit Court of Appeals today heard oral arguments in two cases that challenged the constitutionality of same-sex marriage bans in Indiana and Wisconsin, respectively. As the AP reports, the three judge panel composed of Judges Richard Posner, Anne Claire Williams and David Hamilton, were critical of arguments that sought to justify the bans. Judge Posner, the sole Republican appointed judge among the three member panel, was perhaps the most critical of the states defending their anti-equality laws, objecting in particular to arguments that relied on "tradition":

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate ... and savage discrimination."

Posner frequently cut off Indiana Solicitor General Thomas Fischer, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"

There was [also] some levity during the hearing. As Samuelson struggled to offer a specific reason for how gay marriage bans benefit society, he suddenly noted a yellow courtroom light signaling his allotted time was up.

"It won't save you," [Judge Ann Claire] Williams told him, prompting laughter in court.

Samuleson smiled, and said: "it was worth a try.”

The last anecdote indicates somewhat dramatically just how much the court may be inclined to disagree with the state’s arguments and find for the plaintiffs. 

Listen to oral arguments in both the Indiana (Baskin v. Zoeller) and Wisconsin case (Wolf v. Walker), AFTER THE JUMP…

(photo via Twitter)

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Seventh Circuit Reveals Three Judge Panel To Hear Today's Gay Marriage Case

Judges

As Ari Ezra Waldman reported earlier, today's hearing on marriage equality before the 7th Circuit Court of Appeals hinges in some part at least on the three judges chosen to hear the arguments. Those judges have now been revealed as Judges Richard Posner, Anne Claire Williams and David Hamilton. As ThinkProgress reports, this news seems to portend well for marriage equality advocates: 

Judge Posner is the sole Republican on the panel — he’s served on the Court since President Reagan appointed him in 1981 — but he is a highly idiosyncratic judge who has grown increasingly critical of his fellow partisans in recent years….On the specific issue of gay rights, Posner’s views are a bit nuanced, but he is openly sympathetic to the case for equality. In a 2013 essay entitled “How Gay Marriage Became Legitimate,” Posner questioned the view that the courts have played much of a role in advancing LGBT equality. Using antiquated language, Posner’s bottom line was that “the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation.” Yet he was also dismissive of arguments against gay equality. “[I]t is hard to make a case for discriminating against [gay people],” Posner wrote, “apart from a religious case based largely on Roman Catholic doctrine.”

Judge Williams is a Clinton-appointee and a noted liberal scholar. Hamilton, meanwhile, was appointed by President Obama and was filibustered by Republican Senators “in large part due to a handful of opinions he handed down as a federal district judge on social issues such as abortion and religion.” Early speculation suggests both would be unlikely to break with the dramatic trend of federal justices supporting marriage equality.

Stay tuned for more news on the hearing today before the 7th Circuit.


Marriage Equality Goes Before the 7th Circuit: A Preview

SeventhBY ARI EZRA WALDMAN

Marriage equality gets another hearing before another federal appellate court this morning. Before an as-yet-to-be-named three-judge panel of the Chicago-based Seventh Circuit Court of Appeals, gay and lesbian couples in Indiana and Wisconsin will argue that, as the district courts stated below, the states' bans on gay marriage are unconstitutional. The states' two Republican administrations will argue that gays and lesbians should not be included in the fundamental right to marry and that it is the states' best interest to ban gays from marrying. These arguments are tired, old, and have been rejected many times.

But although the weight of legal arguments and a string of legal victories are on our side, the Seventh Circuit poses an uncertain challenge for several reasons.

First, the panel. We will not know the panel until just a short time before oral argument begins. In previous previews of marriage equality cases before appellate courts, we were able to discuss the political leanings of the judges. We discussed that in the Fourth Circuit and in the Sixth Circuit. And although political affiliation is not always a perfect indication of how a judge will decide a ruling, the knowledge informs us. As a former appellate attorney, I made sure that at least part of my legal strategy reflected the decision histories and tendencies of the judges on the panel. I could never do that in the Seventh Circuit outside of a few on the fly preparations before oral argument.

We do know that 10 of the 14 judges (including senior judges with a lighter case load) on the Seventh Circuit were appointed by Republican presidents. But we also know that (a) many Republican judges have written eloquent marriage equality decisions and (b) some of the Republican-appointed judges on the Seventh Circuit defy traditional conservatism. The famous Judge Richard Posner, for example, is a scion of the law and economics movement and he does not necessarily toe a socially conservative line. For example, Judge Posner has been sympathetic to the pro-choice movement.

WoodWe also know that Judge Diane Wood, a Clinton-appointee and liberal scholar, is now the chief judge, but that does not necessarily matter for panel assignments. The Seventh Circuit's staff executive determines panels using a very simple matrix of 3 judge combinations. Judges learn their panels weeks, if not months in advance; we hear about it the day of.

Second, the arguments. Indiana's central argument is that banning gays from marrying is in the best interest of the state because the state needs to encourage opposite-sex couples to marry and have children within the marital relationship. We've heard that argument before and it is simply laughable. There is no way that banning one group from marrying actually encourages a totally different group to not just marry but also to have kids while married. Plus, gay couples have children, too. I cannot imagine judges like Posner and Frank Easterbook, another law and economics scholar, seeing any legitimacy to the supposed "incentive" for heterosexuals to marry in Indiana's argument.

Third, the history. We won more than 30 cases in a row after the Supreme Court's decision in Windsor. Remarkably, we lost one in Tennessee just two weeks ago, a decision I will write about presently. But the Seventh Circuit is looking at the cases before it in the context of a federal judiciary that, so far, has been overwhelmingly favorable to marriage equality. The judges will see it below them -- in the many district court decisions overturning bans in states across the country -- and above them -- in the Supreme Court's decision in United States v. Windsor. It is hard to see the appellate panel ignoring this context. Neither Judge Posner nor Judge Easterbrook, nor, for that matter, any of the senior judges, are likely to want to be remembered for going against the full weight of an unstoppable tide toward marriage equality in the federal courts.

We will know more once we hear the panels.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


Mariela Castro Votes Against Cuban Government, Voices Support For Transgender Rights

 

Mariela_Castro_2010_Hamburg

Mariela Castro, the daughter of Cuba’s president Raul Castro and niece of Fidel Castro, has made the first recorded vote against the government in a show of support for LGBT people, reports NPR.

Castro was behind the sixth International Lesbian, Gay, Bisexual, Trans and Intersex Association for Latin America and the Caribbean Regional Conference held in Cuba earlier this year.

The proposed update to Cuba's expansive labor code included explicit protections based on sexual orientation. However, Castro said that because it didn't also specify protections for people based on their gender identity and HIV status, it was inconsistent with her beliefs.

It is thought to be the first time that a government bill has been voted against.

However, according to LGBTI News, Baruch College Latin American studies professor Ted Henken said that Castro’s vote “is more a sign of what Mariela can get away with than a sign of what your everyday parliamentarian can get away with.”


Department Of Labor Announces Protections For Transgender Employees Of Federal Contractors - VIDEO

Mia macy

The Department of Labor has finally issued guidance to protect transgender employees of federal contractors from discrimination, reports Buzzfeed.

The move comes after an April 2012 decision by the Equal Employment Opportunity Commission (EEOC) supporting a claim for discrimination against the Bureau of Alcohol, Tobacco, Firearms and Explosives filed by transgender woman Mia Macy.

The EEOC ruled in favor of Macy’s claim under the sex discrimination ban in Title VII of the Civil Rights Act because anti-transgender discrimination is a type of sex discrimination.

When Labor Secretary Tom Perez addressed the issue in February, he said that the issue was under review. However, it wasn’t until President Obama announced in June that he would be signing an executive order banning discrimination against LGBT employees of federally-funded organizations that Perez announced the Labor Department would be applying the Macy decision to the existing executive order.

The guidance was issued yesterday “[t]o clarify that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the bases of gender identity and transgender status.”

Welcoming the decision, Sarah Warbelow, The Human Rights Campaign’s legal director, said:

“The Labor Department guidance issued today is a giant step toward ensuring American workers are judged based on the work they do, and never because of a fundamental aspect of who they are — like their gender identity.”

Watch a Center for American Progress profile of Mia Macy, AFTER THE JUMP...

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Anti-Gay Sultan of Brunei Eyeing Iconic New York Hotels - VIDEO

Sultan

Hassanal Bolkiah, the homophobic Sultan of Brunei, has offered to pay around $2 billion to buy New York’s Plaza Hotel, along with Grosvenor House in London and the Dream Hotel in lower Manhattan, reports Huffington Post.

Bolkiah has faced severe criticism for Brunei’s new penal code which includes death by stoning as a punishment for homosexuality.

A number of celebrities - including Virgin founder and CEO Richard Branson - have protested against the Brunei-owned luxury hotel operator Dorchester Collection following the implementation of the country’s anti-gay laws. However, Russell Crowe announced his support for Dorchester, claiming that protests would “throw employees under the bus to make a political point.”

A statement from the hotel chain said that the company continues to “abide by the laws of the countries we operate in and do not tolerate any form of discrimination of any kind.”

However, activist group Human Rights Campaign’s Director of Global Engagement Ty Cobb said “the American profit stream that flows from [Bolkiah’s] hotels back to his regime needs to stop. We urge all New Yorkers to have one simple and straight-forward message for the Sultan: take your business elsewhere."

Watch a CBS News report, AFTER THE JUMP...

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