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May 22, 2012

Judicial Nominee Rejected after Anti-Gay Lobbying

Less than a week following President Barack Obama’s endorsement of gay marriage, Virginia’s House of Delegates held a late-night vote rejecting Tracy Thorne-Begland, a former naval officer, former project spokesman for the Human Rights Campaign, and Deputy Commonwealth Attorney for the City of Richmond, for a post on the General District Court in Richmond. The vote came out 33–31 in support of Thorne-Begland with 10 members abstaining from the vote. Judicial nominees need 51 votes out of 100 to be approved. Thorne-Begland was expected to sail through the nomination process after receiving broad support from both Democrats and Republicans on the Courts of Justice Committee, which is the legislative committee tasked with vetting proposed judicial nominees. However, fierce lobbying by conservative groups that included several caustic remarks on the House floor by Republican Delelegate Robert G. Marshall preceded the House’s rejection of Thorne-Begland.

Marshall, relying on the old standby of perceived judicial activism, criticized Thorne-Begland for being “an aggressive activist for the pro-homosexual agenda.” As evidence, Marshall referred to Thorne-Begland’s decision to join the Navy despite the (now-repealed) policy banning gays from the military as evidence of Thorne-Begland’s contempt for oaths to his nation. Furthermore, Marshall took issue with Thorne-Begland’s relationship with his same-sex partner for “holding himself out as married” even though Virginia’s constitution defines marriage as a relationship between a man and a woman.

Marshall assures the people of Virginia that Thorne-Begland was rejected as a judicial nominee not because he was gay, but rather because “It’s about a pattern that is just notorious for homosexual advocacy.” In other words, one can be a gay Virginia judge, but only without talking about being gay publicly. Marshall’s litmus test for judges: Don’t Ask, Don’t Tell for the Virginia Judiciary.

Keywords: litigation, LGBT, judiciary, Virginia, Thorne-Begland

—Nicholas Drury, Sandman, Levy & Petrich, Chicago, Illinois

May 4, 2012

Annual Conference Panel Discusses LGBT Issues

The 2012 Section of Litigation Annual CLE Conference, held April 18–20, 2012, in Washington, D.C., included the panel discussion “Gay Marriage and the Law: Same-Sex Marriage Litigation and Defense of Marriage Act Repeal Efforts.” During this session, three legal-community leaders revealed their personal experiences, their challenges, and the current state of marriage and the law. The panelists discussed the most critical factors affecting the right of marriage, which is a basic human right, and debated whether these concerns are changing.

David J. Tsai, an associate attorney for Perkins Coie LLP, San Francisco, moderated the panel and fervently serves the lesbian, gay, bisexual, and transgender (LGBT) legal community. The panel included Jennifer C. Pizer, legal director of the Williams Institute, UCLA School of Law, and former senior counsel with Lambda Legal. The Williams Institute provides research and education advancing public policy for sexual orientation and gender-identity law. Also on the panel was Hilary E. Ware, associate general counsel with Netflix and former managing litigation counsel with Google. She and her wife are parents of three children. Rounding out the panel was Enrique A. Monagas, an associate for Gibson, Dunn & Crutcher, San Francisco. Monagas lended a hand to the successful Perry v. Brown case challenging California’s Proposition 8, which eliminated the right of same-sex couples to marry.

The discussion, led by Jennifer Pizer, began with a brief statistical analysis of the 2012 Census Snapshot results counting self-reported LGBT persons. The report indicated that 646,464 same-sex couples self-identified as living in a partnership. The census discloses that same-sex couples live nationwide, in every congressional district, and are a diverse collection of various economic classes and ethnicities. Pizer pointed out that seven states offer marriage equality: Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia. While Maryland granted marriage rights to same-sex couples on February 24, 2012, Maryland offers referendum options allowing citizens the opportunity to reverse recently passed legislation. Both Maryland and Washington are awaiting possible referendum votes. Maine is awaiting an override referendum veto. States offering civil unions include Delaware, Hawaii, Illinois, New Jersey, and Rhode Island. In addition, Delaware, Oregon, Washington, Rhode Island, California, Illinois, Hawaii, Nevada, and New Jersey have extensive domestic-partnership provisions providing the same rights and protections as married persons, and Colorado, Wisconsin, Maine, and Maryland provide less comprehensive domestic-partnership packages.

Pizer also pointed out that, of all economic issues that are a primary concern, voters rank gay marriage at the bottom. The ranking puts gay rights, specifically marriage rights, into a broad picture that includes the barriers created by backlash, similar to the Brown v. Education aftermath, where discouraging setbacks came after significant progress.

Ware shared what it is like to be a mom and to deal with same-sex marriage issues that range from filing tax returns to traveling. While Ware and her wife legally married under California law and can jointly file California tax returns, under the federal tax provisions, they must file separately. This disparate treatment extends to an even more personal level. For example, when Ware and her wife travel outside the state, which happens frequently, they must carry stacks of paperwork, such as medical directives, birth certificates, marriage licenses, and proof of domestic-partnership registration. In the event that their children go to the hospital, Ware’s wife must prove she is the mother too because she did not physically give birth. Should Ware or her wife get admitted into the hospital outside the state of California, visitation rights and the ability to make medical decisions then become issues.

The 1996 Defense of Marriage Act (DOMA) defines marriage as “between one man and one woman” and spouse as “someone legally married.” The LGBT argument stands strongly on the issue of unconstitutionality under the Full Faith and Credit, Equal Protection, and Due-Process clauses.

Monagas worked side by side with plaintiffs Kristin Perry’s and Sandra Steir’s attorneys, Theodore B. Olson and David Boies, helping craft trial strategy and managing day-to-day operations. Monagas began his discussion with an emotionally charged video collage of various news excerpts taken from throughout the Perry v. Brown litigation process. The defendant’s witness, David Blankenhorn, is the “reasonable person witness.” When asked “If allowing gay marriage is harming the institution of marriage, what is the harm?” Monagas pointed out that Blankenhorn said “I don’t know.” During the panel discussion, Monagas and Pizer brilliantly fielded one primary question regarding the narrow application of Perry v. Brown and whether the case could apply to every state on same-sex marriage. How does Perry apply, or could Perry apply, to states that have never introduced the same-sex marriage right, considering the facts of the case are that the state of California gave rights to a group of people, then took those rights away? Pizer and Monagas both stated that the conversation would be the same. Regardless of whether there was a right or not, the same discussions apply to anyone in any state wanting the basic marriage right. The focus is prohibition and barrier, not taking a right. It is unconstitutional to prohibit one’s fundamental right under the U.S. Constitution.

Keywords: litigation, LGBT, Proposition 8, same-sex marriage, DOMA, gay marriage

—Sandra D. Delgado Esq. is an attorney in Washington, D.C.

February 10, 2012

Ninth Circuit Affirms District Court Opinion on Prop 8

On February 7, 2012, the Federal Court for the Ninth Circuit issued a 2–1 split decision affirming the California District Court’s decision striking down the California law known as Proposition 8, which eliminated the right of same-sex couples to marry in California. Prior to this law, passed by referendum in 2008, California’s constitution protected the right to marriage of both same-sex and opposite-sex couples. In Perry v. Brown, the court’s rationale was that Proposition 8 violated the Equal Protection component of the Fourteenth Amendment.

Circuit Judge Reinhardt’s majority opinion states, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of the opposite-sex couples.” The court finds that this issue is easily resolvable, however, and decides the case on narrow grounds. Specifically, Judge Reinhardt writes, “Were we unable, however, to resolve this matter on the basis we do, we would not hesitate to proceed to the broader question—the constitutionality of denying same-sex couples the right to marry.”

The majority explains:

The court finds that this distinction is an important one and questions whether the state has any legitimate interest or reason for stripping a privilege or protection (marriage) from a class of disfavored individuals (same-sex couples). The court inevitably finds that the purported interests (furthering childrearing and responsible procreation, being cautious about changing marriage, protecting religious freedom, and preventing same-sex marriage from being discussed in schools) are not legitimate state interests, and therefore, Proposition 8 has not passed the rational basis threshold.

The dissent by Judge N.R. Smith assesses the question before the court in a very similar way to the majority. In fact, the dissent, like the majority, uses the rational-basis test. However, the dissent distinguishes Romer v. Evans from Perry and notes that Romer does not directly control. The dissent finds that the purported governmental interests that are advanced by the defenders of Proposition 8, such as “the optimal parenting rationale,” are indeed a legitimate governmental interest. The dissent then goes on to conclude that excluding same-sex couples from entering into a formally declared marriage may rationally relate to California’s interest in optimal parenting and procreation, and, therefore, the law should be immunized from a Constitutional challenge.

Keywords: litigation, LGBT, California, Proposition 8, same-sex marriage

—Nicholas Drury, Sandman, Levy & Petrich, Chicago, Illinois

January 12, 2012

Michigan Prohibits Domestic Partner Medical Benefits

On December 22, 2011, Michigan Governor Rick Snyder signed into law HB 4770. This bill, dubbed the Public Employee Domestic Partner Benefit Restriction Act, prohibits public employers from providing medical benefits to individuals currently residing with an employee unless said individual is married to the employee, a dependent of the employee, or otherwise eligible to inherit from the employee under Michigan’s intestate succession laws.

According to Equality Michigan, a statewide lesbian, gay, bisexual, and transgender (LGBT) activist group, the passage of HB 4770 is a devastating blow to LGBT public employees, as many public entities formerly provided coverage for domestic partners of employees, including the University of Michigan, Michigan State University, Wayne State University, 11 of the 12 other public universities, and at least eight cities, counties, and school districts, including Ann Arbor and Kalamazoo.

Efforts to repeal HB 4770 are already underway. The American Civil Liberties Union (ACLU) has already filed at least one lawsuit on behalf of an LGBT couple, JoLinda Jach and Barbara Ramber, challenging HB 4770. Jach is an employee of the city of Kalamazoo, which had provided Ramber health care through the city’s insurance plan. A recent accident left Ramber with permanently damaged eyesight and glaucoma, resulting in the need for daily medication. Given the new law, Ramber will no longer be able to obtain said medications and, with her current medical problems, private insurance would likely be prohibitively expensive, if she is even able to obtain coverage.

Certainly, our thoughts go out to Jach and Ramber and all other LGBT citizens of Michigan affected by this bill. While great strides have been made on many LGBT issues in recent years, these events serve as a reminder that the struggle is not yet over.

Keywords: litigation, LGBT, insurance, domestic partners

—Justin Stephens, Baker Donelson, Baton Rouge, Louisiana

January 12, 2012

Court Hears Ninth Circuit Attorney's DOMA Challenge

On December 16, 2011, the U.S. District Court for the Northern District of California heard oral argument on summary judgment motions arguing the constitutionality of the Defense of Marriage Act (DOMA). In Golinski v. Office of Personnel Management, Case No. 3:10-cv-0257-JSW, the plaintiff, Karen Golinski, is a staff attorney for the Ninth Circuit. Golinski is seeking to obtain health insurance coverage through the court for her same-sex spouse, to whom she is lawfully married under California law. Golinski argues that it is a violation of equal protection for the federal government as her employer to offer spousal health insurance to opposite-sex spouses but deny that same benefit to her and her same-sex spouse. Golinski is represented in the matter by Lambda Legal.

The Obama Justice Department joined Golinski in arguing that DOMA was unconstitutional, urging that heightened scrutiny applies to sexual-orientation classifications. According to news reports, Tony West, the head of the DOJ Civil Division, appeared in court to argue the administration’s position. Attorneys for the House of Representatives’ Bipartisan Legal Advisory Group (BLAG) also appeared and argued in favor of the constitutionality of DOMA. The presiding judge questioned whether BLAG had standing to appear in the litigation in addition to the question of DOMA’s constitutionality.

Keywords: litigation, LGBT, Defense of Marriage Act, Ninth Circuit

—J. Dalton Courson, Stone, Pigman, Walther, Wittmann, LLC, New Orleans, Louisiana

January 12, 2012

Hawaii and Delaware Civil Unions Go into Effect

Starting with the new year, same-sex couples in Hawaii and Delaware could enter into civil unions, offering those couples the rights of heterosexual married couples. Delaware’s governor previously signed into law civil unions for same-sex couples in May 2011. Similarly, Hawaii enacted civil-union legislation in February 2011. These laws became effective January 1, 2012. While not without limitation, civil unions address some of the issues same-sex couples face, providing protections and rights under state law similar to those offered to married spouses, including hospital visits or parental rights.

Just a few days prior to the January 1 effective date, two churches in Hawaii filed for a restraining order from the U.S. District Court for the District of Hawaii to prevent the bill from going into effect. The two churches claimed “imminent threat of sexual-discrimination claims because Act 1 would make them liable for ‘declining to perform a funeral for a same-sex couple, or for refusing a same-sex couple a same-sex ceremony on church grounds.’” Judge J. Michael Seabright denied the injunction request, stating that the plaintiffs lacked standing and that “H.R.S. 489 prohibit[ed] unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, including gender identity or expression, sexual orientation, color, religion, ancestry, or disability.”

The Associated Press reported two Delaware lawyers were first to receive their civil union license.

Keywords: litigation, LGBT, Delaware, Hawaii, civil unions

—Sandra D. Delgado, Addison, Texas

October 27, 2011

Senate Committee to Debate Repeal of DOMA

In a notable first, the Senate Judiciary Committee has scheduled debate and a markup on legislation to repeal the Defense of Marriage Act (DOMA) for November 3, 2011. Senator Patrick Leahy, committee chairman, held a hearing in July on proposals to repeal DOMA, which defines marriage as between a man and a woman. The committee will consider a bill introduced by Sen. Dianne Feinstein in March—The Respect for Marriage Act—that would allow the federal government to provide benefits to couples in same-sex marriages.

The news was quickly heralded by many of the legislation’s supporters. “This markup is an incredible step toward ending federal marriage discrimination that causes real harm to American families,” said Joe Solmonese, president of the Human Rights Campaign. “Chairman Leahy and Senator Feinstein have been leaders in this fight, and we applaud them for continuing the momentum against this unjust law.”

President Barack Obama still has not publicly come out in support of marriage equality, but he does support repealing DOMA. In May, U.S. Attorney General Eric Holder announced that the Obama administration would no longer be defending the 1996 law in federal court after the Justice Department concluded it is unconstitutional.

Read more at MSNBC.

Keywords: litigation, LGBT, U.S. Congress, DOMA

—Spencer Jones, O’Melveny & Myers, San Francisco, California

October 27, 2011

Supreme Court Declines to Hear Gay Adoption Case

In early October, the U.S. Supreme Court denied review to a case involving the rights of same-sex parents to adopt and be listed on their child’s birth certificate. In Oren Adar v. Darlene Smith, a case closely watched by gay-rights advocates, the high court rejected without comment an appeal by Oren Adar and Mickey Ray Smith, a gay couple who sued to be listed as parents on a Louisiana birth certificate of the infant they adopted.

With their ruling, the justices let stand a ruling by a U.S. appeals court that a Louisiana registrar’s decision not to list both men does not violate the child’s right to equal protection under the law and does not deny legal recognition of the New York adoption. The couple had claimed that Louisiana, where the child was born, has an unconstitutional policy against adoption by unmarried partners. The state used that policy to justify naming only one of them on an amended birth certificate. But the appeals court had also rejected the argument that gay couples have a due-process right to be listed on such certificates as joint custodial parents.

Some civil-rights groups had urged a high-court review, saying the case would have broader implications in the current legal fight in state and federal courts over same-sex marriage and whether states must honor legal rights that gays and lesbians enjoy in other states. Because the court’s ruling came without comment, however, it is not possible to use it to predict how the justices might decide in the future on these separate but related issues.

Read more from CNN.

Keywords: litigation, LGBT, federal courts, California

—Spencer Jones, O’Melveny & Myers, San Francisco, California

October 27, 2011

Court Action in Minnesota Challenges Bullying

Minnesota’s Anoka-Hennepin School District, just outside the Twin Cities, made headlines in recent years after seven students committed suicide between November 2009 and May 2011. Parents and friends say four of those students were gay, perceived to be gay, or questioning their sexuality. They say at least two of them were bullied because of their sexuality.

As a result of this rash of suicides, back in July of this year, the Southern Poverty Law Center (SPLR), the National Center for Lesbian Rights (NCLR), and Faegre & Benson, LLP, sued the Anoka-Hennepin School District, alleging pervasive anti-gay harassment in the district’s schools as well as a “gag policy” that prevents teachers from discussing issues related to lesbian, gay, bisexual, and transgender (LGBT) people. The groups filed suit in the U.S. District Court for the District of Minnesota after the school district failed to address the persistent abuse or repeal its discriminatory policy.

Anoka-Hennepin encompasses the Twin Cities’ northwestern suburbs and is the state’s largest school district. The district’s curriculum policy, adopted in 2009, bars teachers from taking a position on homosexuality in the classroom and says such matters are best addressed outside of school. It’s become known as the neutrality policy. Though the groups have participated in at least two mediation sessions since the suit was commenced, the case remained unresolved.

Read more from CNN.

Keywords: litigation, LGBT, federal courts, Minnesota

—Spencer Jones, O’Melveny & Myers, San Francisco, California

August 10, 2011

Oetken Will Serve as First Male Openly Gay Federal Judge

On July 18, the Senate voted 80 to 13 to approve the nomination of J. Paul Oetken, a lawyer and senior vice president and associate general counsel of Cablevision, to the U.S. District Court of Southern New York. President Obama had nominated Oetken to the federal bench in January of this year. Oetken’s nomination was sent to the Senate floor in early April after being unanimously approved by the Senate Judiciary Committee.

Although the approval of Oetken’s nomination made him the first openly gay male Article III federal judge, he is not the first openly gay judge to reach the federal bench. In 1994, Deborah Batts, an openly gay woman, was sworn in as a Federal District Judge for the Southern District of New York, a position she is still currently serving.

Further hopes to diversify the federal bench are still in process. Alison Nathan, a former associate White House counsel and an openly gay woman, was also nominated to the U.S. District Court of Southern New York by President Obama in March of this year. Her nomination was approved by the Senate Judiciary Committee in July and will now be moved to the Senate to be voted on in the near future.

Keywords: litigation, LGBT, federal courts, judges, New York

— Spencer Jones, O’Melveny & Myers, San Francisco, California

August 10, 2011

New Trial Judge Refuses to Vacate Prop. 8 Decision

In a decision released on June 15, 2011, Chief U.S. District Judge James Ware of the Northern District of California denied a motion by the proponents of Proposition 8 to vacate last summer’s ruling by now-retired Chief Judge Vaughan Walker, which held Prop. 8 to be unconstitutional.

The proponents argued that because Judge Walker is a gay man with a long-term partner, he “stood in the shoes” of plaintiffs who were challenging Prop. 8 and thus had a conflict of interest requiring his recusal from the case. Judge Ware squarely rejected all of the proponents’ arguments, concluding that “In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge.”

Within weeks of the ruling, counsel for proponents filed an appeal with the 9th Circuit of Judge Ware’s ruling rejecting the motion to vacate.

Keywords: litigation, LGBT, California, Proposition 8

— Spencer Jones, O’Melveny & Myers, San Francisco, California

August 10, 2011

Former Committee Chair Asks Prop. 8 Opponents to Reengage

Former LGBT Litigator Committee Chair Laura Brill, a partner at the Los Angeles law firm Kendall Brill & Klieger, LLP, and the author of four amicus briefs on equal marriage rights in California, recently wrote an opinion piece in the Orange County Register marking the two-year anniversary of the California Supreme Court’s decision upholding Proposition 8 as a valid exercise of the state’s initiative process.

The piece, titled “It’s Time for Prop. 8 Opponents to Re-engage,” laments that Proposition 8 remains in effect in California despite the fact that “most people now support equal marriage rights and that the State of California itself has actively sought to nullify the law, rather than defend it in court. Brill urges supporters of marriage equality not to wait for the courts to act, as the complexity of the issues involved and the process of appeals promises only further delay in reaching any final result from them for some time.

In answer to the question “But what can I do?” Brill’s answer is “a lot.” She goes on to describe five specific actions “anyone can take that will hasten the end of Proposition 8 once and for all.”

Keywords: litigation, LGBT, California, Proposition 8

— Spencer Jones, O’Melveny & Myers, San Francisco, California

June 17, 2011

Bankruptcy Court Declares DOMA Unconstitutional

Thomas Donovan, a bankruptcy judge for the Central District of California, declared the Defense of Marriage Act (DOMA) unconstitutional in a ruling issued on June 13, 2011. In a surprising and unusual move, his decision was joined by 19 other bankruptcy judges in the Central District (only four of that court’s judges did not join in the decision).

This case involves a gay couple in California who filed for joint bankruptcy protection as a married couple. The U.S. Trustee’s Office, an arm of Department of Justice that oversees bankruptcy cases, asked Donovan to dismiss the case on the grounds that DOMA barred the court from recognizing the couple’s marriage. Donovan declined to dismiss the case, saying the couple “demonstrated that there is no valid governmental basis for DOMA. In the end, the court finds that DOMA violates the equal protection rights of the debtors as recognized under the due process clause of the Fifth Amendment.” The ruling also criticized Congress for passing the law, saying:

Earlier this year, the Obama Administration said it believed DOMA violated the Constitution, and, despite the Trustee’s Office’s bid to dismiss the couple’s bankruptcy case, ordered the Department of Justice to stop defending the law in court. Judge Donovan’s decision, coming with the backing of a large majority of the Central District, may well prove to be a model for other bankruptcy courts that take up this issue.

Read more about the lawsuit in The New York Times.

Keywords: litigation, LGBT, Defense of Marriage Act, Department of Justice, Central District of California

— Spencer Jones, O’Melveny & Myers, San Francisco, CA

June 17, 2011

Equal Treatment Required for Gay-Straight Alliances

On June 14th, the U.S. Department of Education released a policy guidance letter to school districts across the country making it clear that gay-straight alliances (GSAs) must be allowed to form on an equal basis with other student groups. Recognizing that “[h]arassment and bullying are serious problems in our schools,” especially for lesbian, gay, bisexual, and transgender (LGBT) kids, the letter directs as follows:

Despite a string of court cases dating back to the 1990s that have interpreted the Federal Equal Access Act to require public schools to allow GSAs to organize as recognized clubs and use school facilities, some school districts have still acted to thwart their existence. The letter called such attempts “unlawful” and urged all school districts to refer to the department’s previously issued guidance on establishing antibullying policies to help ensure equal and safe access to education for all students.

Lambda Legal, who won a recent victory for a blocked student GSA in a lawsuit about antigay, sexist discrimination in a school in upstate New York, declared in response to the directive that “we hope that every administration in every school district across the country gets the message loud and clear: If you allow student clubs on campus, then you must allow gay-straight alliances equally.”

Keywords: litigation, LGBT, gay-straight alliances, Department of Education

— Spencer Jones, O’Melveny & Myers, San Francisco, CA

June 17, 2011

Lawyers Asked to Help LGBT Kids in Foster Care

The ABA’s Center on Children and the Law has put out a call to lawyers to join in its Opening Doors Project, which is targeted at helping lesbian, gay, bisexual, and transgender (LGBT) kids in foster care. The center recently launched a new video and web campaign, The Kids Are Listening, which is the first service of its kind in the nation. It offers free online resources and support to legal and social services professionals—from judges to children’s attorneys and social services personnel—who are involved in the foster-care community.

Via the online video, Facebook, Twitter, and YouTube Pages, the Kids are Listening campaign encourages people of all ages and walks of life to stand up to hate speech and discrimination against LGBT youth. The campaign enjoys the support of a growing coalition of major organizations across the nation, including the Anti-Defamation League, Cartoon Network, the Child Welfare League of America, the It Gets Better Project, the Safe Schools Coalition, Healthy Teens Network, the National Association of Counsel for Children, the National Association of Juvenile and Family Court Judges, the American Humane Association, the National Black Justice Coalition, and Stop Bullying Now!, a federal program run by the Health Resources and Services Administration.

We hope you will take a moment to view the website and video and share this information with others committed to improving the lives of LGBT young people in foster care and in our communities.

Keywords: litigation, LGBT, Center on Children and the Law, The Kids Are Listening

— Spencer Jones, O’Melveny & Myers, San Francisco, CA

December 30, 2010

Illinois Legislature Approves Civil Unions

The Illinois legislature has passed a bill authorizing civil unions. News reports indicate that Illinois Governor Patrick Quinn has promised to sign the bill into law in early January.

Unlike other states, in which civil unions are available only to same-sex couples, Illinois will allow both same-sex and opposite-sex couples to enter into a civil union under the new measure. “It just seemed wrong to me to write a law that would be discriminatory,” said state Rep. Greg Harris, D-Chicago, the bill’s chief sponsor in the Illinois House. It is interesting to note that many heterosexual senior citizens lobbied for the civil unions bill. Many seniors stand to lose survivorship benefits if they remarry, but they want to obtain the benefits of marriage with new partners.

An Illinois civil union will confer on a couple the same benefits that a married couple would receive under Illinois state law. However, important federal-level marriage rights remain off-limits to couples in a civil union, such as the right to file joint tax returns and the right to survivorship benefits under Social Security. Civil unions are expected to begin in Illinois in June 2011. At that time, Illinois will become the tenth state to provide a method for the recognition of same-sex couples under state law that approximates the rights of married couples, joining Massachusetts, Connecticut, New Hampshire, Iowa, and Vermont (which, along with the District of Columbia, allow same-sex marriage), and California, Nevada, New Jersey, Oregon, and Washington (which allow for civil unions or domestic partnerships).

Read more about the lawsuit in The Chicago Tribune.

— Dalton Courson, Stone Pigman Walther Wittmann, New Orleans, Louisiana

December 30, 2010

Ninth Circuit Hears Proposition 8 Appeal

The Ninth Circuit Court of Appeals took on the historic clash over California’s Proposition 8 on December 6, 2010, and the judges asked probing questions as they weighed arguments about whether voters acted rationally in banning gays from marrying in 2008. Proposition 8 supporters are appealing a ruling issued in August by U.S. District Judge Vaughn Walker that the measure violated the federal constitutional rights of gay people. For more than two hours, the panel of judges asked pointedly whether the voters could legally take from gay people the right to marry that had been briefly granted them by the California Supreme Court.

The questions and comments by the three-judge panel hinted that the court may craft a ruling that would allow gays and lesbians to marry in California while leaving other states’ laws intact—a restrained approach seemingly designed to appeal to the U.S. Supreme Court. Neither side predicted how quickly the judges might return with their ruling.

Read more about the hearing in The San Francisco Chronicle and The Sacramento Bee.

— Spencer Jones, O’Melveny & Myers, San Francisco, California

December 30, 2010

Study Shows LGB Youth Are Over-Criminalized

Lesbian, gay, and bisexual (LGB) adolescents are about 40 percent more likely than other teens to receive punishment at the hands of school authorities, police, and the courts, according to research released online today and set to be published in the January 2011 issue of Pediatrics. Absent any differences in misbehavior between LGB youth and their heterosexual peers, youth who identified themselves as LGB nonetheless more frequently received virtually all types of punishment, including school expulsions, arrests, juvenile convictions, adult convictions, and especially police stops.

“Criminal-Justice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Study,” by Kathryn E.W. Himmelstein, B.A., and Hannah Brückner, Ph.D., is the first study to document excessive punishment of LGB youth nationwide. The study was based on the National Longitudinal Study of Adolescent Health and included approximately 15,000 middle and high school students, who were followed for seven years into adulthood.

The study asserts that the excessive punishments of LGB youth may reflect authorities’ reluctance to consider mitigating factors such as young age or self-defense in determining punishment for LGB youth. Analysis suggests an urgent need for all child-serving professionals to reflect on strategies to reduce the criminalization of nonheterosexual youth as they navigate adolescence in an often hostile environment.

— Catherine Krebs, committee director, ABA Section of Litigation, Children’s Rights Committee, Washington, D.C.

December 28, 2010

Law Firms Offer "Gross-Up" Tax Offsets to Lesbian and Gay Employees

Several national law firms are rolling out a new perk aimed at reimbursing their gay employees for the tax liability they incur when they elect to add domestic partners to their health benefit plans. The latest firm is McDermott Will & Emery, which recently said that, beginning in 2011, it would provide a tax “gross-up” payment for its employees in same-sex domestic partnerships. McDermott followed Morrison & Foerster, which last month said it would provide a similar payment to assist its staff and non-partner attorneys who elect domestic partner health benefits.

Large law firms have for some time offered their gay employees the option to get health benefits for their domestic partners, but gay employees face a disadvantage because they are taxed on the value of their partners’ medical, dental, and vision benefits. Now some law firms are trying to plug that hole by paying their gay employees the difference. Other law firms that offer a gross up include Cadwalader, Wickersham & Taft and Linklaters. This is a promising trend that, it is to be hoped, will continue to spread to other law firms in 2011.

Read more about the “gross-up” trend in The New York Law Journal.

October 28, 2010

Enforcing a Right to Counsel for Children: The Time is Now

On Thursday, August 5, 2010, at the ABA Annual Meeting in Chicago, Illinois, the Children’s Rights Litigation Committee presented the program Enforcing a Right to Counsel for Children: The Time is Now. Every day, children are removed from their homes and placed into state custody. Depending on the state in which they live, they may not be represented by a lawyer in life-impacting legal proceedings.

This program explored the role a lawyer should play for a child in dependency court under the ABA Model Rules of Professional Responsibility and what barriers exist to allowing lawyers to represent children. Speakers included Judge Rosemary Barkett, U.S. Court of Appeals for the Eleventh Circuit; Diane Geraghty, Civitas ChildLaw Center, Loyola University School of Law; Hilarie Bass, vice chair of the Section of Litigation; Trevor Wade, former foster youth, Denver, Colorado; Michael Dale of the Nova Southeastern University Law Center; Trenny Stovall of the DeKalb County Child Advocacy Center; and Angela Vigil of the Section of Litigation’s Children’s Rights Litigation Committee.

Panelists had a vigorous discussion about why children need lawyers and what role lawyer should have in cases. As one panelist noted, “When the state comes with all of its power to remove you from your home, who do you want standing with you? You would choose a lawyer. What you want for a child is what you also want for yourself.” Michael Dale addressed the concern that if children have lawyers who are client-directed, children may choose to argue for dangerous outcomes. He noted that this type of argument “denigrates the professionalism of lawyers.” Lawyering includes the process of counseling and the provision of guidance to clients. Panelists noted that a guardian ad litem does not have a confidential relationship with a child client, but a lawyer does. Due to the establishment of trust through this confidential relationship, children are more willing to work with lawyers to establish the goals of representation.

Diane Geraghty discussed her representation of a 13-year-old girl who noted at the end of her case that due to her representation, “I had my day in court; I understood the outcome better; I counted.”

This panel really illustrated how legal representation provides a child with a voice. It can be the difference between a future a child embraces and one he or she rejects. For the children, the time is now.

To read more about this program, visit ABA Now.

— Catherine Krebs, committee director, ABA Section of Litigation, Children’s Rights Committee, Washington, D.C.

October 22, 2010

Law Firms Excel in Corporate Equality Index

Since 2002, the Human Rights Campaign Foundation’s Corporate Equality Index has surveyed major businesses, including law firms, to benchmark important employer benefits and protections for LGBT employees and their families. In 2006, of the first-year law firms invited to participate, 12 achieved a 100 percent rating.

The HRC Foundation recently released its ninth edition of the Corporate Equality Index 2011: Rating American Workplaces on Lesbian, Gay, Bisexual, and Transgender Equality. This year, even with the struggling economy, 477 companies actively participated in the system that will rate them on more than 40 specific policies and practices covering nearly every aspect of employment for LGBT workers—from pension benefits to gender transition guidelines to supplier diversity. This number includes the participation of an unprecedented 97 law firms—eclipsing every other industry represented on the index.

The HRC Foundation not only tracks firms’ progress, but also actively works with firm diversity managers and partnership committees, as well as with LGBT attorneys, to implement inclusive policies at the nation’s most prestigious firms. If your firm has not participated in the Corporate Equality Index, you can find information on the HRC website about how to complete a survey for the Corporate Equality Index 2012 (surveys are due June 30, 2011).

— Spencer Jones, O’Melveny & Myers, San Francisco, California

October 15, 2010

Florida Appeals Court Invalidates State’s Gay Adoption Ban

On September 22, 2010, a three-judge panel of the Florida Third Circuit Court of Appeal unanimously struck down Section 63.042(3) of the Florida Statutes, which banned homosexuals from adopting. Florida Dep’t of Children & Families v. In re Matter of Adoption of X.X.G. and N.R.G., No. 3D08-3044. Ruling on the state’s appeal of a decision by a state trial judge granting Plaintiff Martin Gill’s petition to adopt his foster children, the appeals court found that the ban violated the equal protection provision of the Florida Constitution because no rational basis existed to exclude gay applicants from adopting. Gill was represented by a trial team that included Hilarie Bass, a partner at Greenberg Traurig in Miami and current chair of the Section of Litigation.

Following the decision, on October 12, Florida’s Department of Children and Families announced that it had decided not to appeal the court’s decision. Therefore, the state’s gay adoption ban will no longer be enforced.

The case also appeared in the Miami Herald story DCF won't appeal overturn of gay adoption ban.

— Dalton Courson, Stone Pigman Walther Wittmann, New Orleans, Louisiana

October 15, 2010

U.S. District Court: "Don't Ask, Don't Tell" Unconstitutional

On September 9, 2010, Judge Virginia A. Phillips of the U.S. District Court for the Central District of California declared the U.S. military’s ban on openly gay service members, better known as “Don’t Ask, Don’t Tell,” unconstitutional because it violates the First and Fifth Amendment rights of lesbians and gay men. The Don’t Ask Don’t Tell policy prohibits the military from asking about the sexual orientation of service members. Under the 1993 policy, service members who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

In her decision, Judge Phillips found that the Don’t Ask Don’t Tell policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruitment efforts during wartime and requiring the discharge of service members who have critical skills and training, Judge Phillips wrote. The plaintiffs in the case, the Log Cabin Republicans, sued the federal government in 2004 to stop the policy.

Subsequently, on October 12, 2010, Judge Phillips issued an injunction ordering the military to suspend and discontinue any investigation or discharge, separation, or other proceeding that has been commenced under the policy. The Department of Justice responded with an appeal and a request for a stay of the ruling.

The case also appeared in the New York Times story Unexpected Turns for Suit Over “Don’t Ask” Rule.

— Spencer Jones, O’Melveny & Myers, San Francisco, California

October 15, 2010

Federal Court Dismisses Challenge to Hate Crimes Legislation for Lack of Standing

Judge Thomas Ludington of the Eastern District of Michigan issued a ruling dismissing a challenge to the constitutionality of the criminal provisions of the Matthew Shepherd and James Byrd, Jr., Hate Crimes Prevention Act, 18 U.S.C. Sec. 249(a)(2). Glenn v. Holder, No. 10-10429-TLL-CED (E.D. Mich. Sept. 7, 2010). The act, passed by Congress in 2009, provides criminal penalties for anyone who “willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person.”

The plaintiffs in Glenn, a group of pastors and the president of the American Family Association of Michigan, alleged that the act violated their First Amendment right to express their opposition to homosexuals. Granting a motion to dismiss filed by the attorney general, the court held that the plaintiffs lacked standing because they failed to demonstrate any likelihood that they would be prosecuted under the act. Online reports have indicated that the plaintiffs plan to appeal.

The case also appeared in the Bay City Times story Federal judge in Bay City dismisses lawsuit challenging Hate Crimes Act.

— Dalton Courson, Stone Pigman Walther Wittmann, New Orleans, Louisiana

October 15, 2010

Federal Court Rules California’s Proposition 8 to be Unconstitutional

On August 4, 2010, Judge Vaughn Walker of the U.S. District Court for the Northern District of California ruled in Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal.) that Proposition 8, the 2008 ballot initiative that amended the California Constitution to provide that only the union of one man and one woman would be valid or recognized as a marriage in California, violated the Due Process and Equal Protection Clauses of the 14th Amendment.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” wrote Judge Walker in his 136-page decision. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.” The ruling was a win for lawyers Ted Olson and David Boies, an unlikely pair who faced off against one another during the aftermath of the 2000 presidential election (Olson represented George W. Bush and Boies represented Al Gore.). California Governor Arnold Schwarzenegger applauded the ruling, saying it “affirms the full legal protections and safeguards I believe everyone deserves.”

Judge Walker subsequently rejected the Proposition 8 proponents’ motion for a stay, 702 F.Supp.2d 1132 (Aug. 12). But on August 16, the motion panel of the Ninth Circuit Court of Appeals ordered Judge Walker’s decision stayed pending appeal—though also ordered an expedited briefing and hearing schedule for the case.

The case also appeared in the San Francisco Chronicle story Prop. 8 judge strikes down same-sex marriage ban.

— Spencer Jones, O’Melveny & Myers, San Francisco, California

October 15, 2010

David Boies Addresses Opening Assembly at ABA Annual Meeting in San Francisco

Liberty, equality, and protection. These watchwords framed David Boies’ address to the ABA Annual Meeting Opening Assembly in August in San Francisco. Outgoing ABA president Carolyn Lamm introduced Boies as “a star by all who know him.” Surely, after his and Ted Olson’s victory in challenging Proposition 8, the LGBT community and its allies count Boies among the stars as well.

Boies’ address centered on the rule of law and its place within American culture. Boies identified judicial supremacy and judicial independence as unique innovations in the American legal system. He emphasized that the applicability of the rule of law must be predictable, but recognized that the increasingly disproportionate distribution of resources in American society presents a challenge to predictability and, consequently, to the rule of law.

Boies made four recommendations for overcoming these challenges. First, the legal profession must examine its procedures and eliminate the ways it favors the better resourced party. Second, the profession must find creative ways to bring the jury system into the 21st Century. Specifically, he recommended that juries be provided with the tools to evaluate the increasingly complex and specialized problems they are asked to consider. Third, the system must increase compensation for both federal and state judges in accordance with the standard of living. Boies noted that compensation is particularly important to maintaining an independent judiciary, especially in light of judges falling under attack for promoting civil and human rights. Fourth, Boies called for the elimination of state-sponsored and state-enforced discrimination. He warned that if judicial decisions are made based on the identity of the parties, the rule of law will be undermined.

In closing, Boies recognized that the legal system recently took an important step in eliminating discrimination against gay and lesbian citizens with the repeal of Proposition 8. He noted that the decision comports with his ideal of bringing the rule of law to every citizen. Overall, Boies was cautiously optimistic that the legal profession can overcome the challenges it faces.

— David Alan Perkiss, UCLA Law School, Los Angeles, California

October 15, 2010

ABA House of Delegates Passes Landmark Same-Sex Marriage Resolution

During the ABA Annual Meeting in San Francisco in August, the ABA House of Delegates adopted a landmark resolution in support of marriage equality. The text of the measure urged all “state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

The proposal was submitted by the ABA’s Section of Individual Rights and Responsibilities, and it had 13 sponsors, including bar associations in the states of New York, Vermont, Massachusetts, and Washington, as well as the cities of San Francisco, New York, and Beverly Hills. The proposed resolution built on previous actions by the House of Delegates, including a 2009 vote urging the repeal of Section 3 of the federal Defense of Marriage Act (DOMA), which denies federal marital benefits and protections to lawfully married same-sex spouses, and a 2004 vote opposing efforts to enact a federal constitution amendment or other legislation that would prevent states from permitting same-sex marriages. In their report and recommendations to the House, supporters of the measure rejected civil unions as a substitute for full marriage equality, calling civil unions a “separate and ultimately inferior system” and comparing the argument for civil unions in lieu of marriage to the separate-but-equal reasoning of Plessy v. Ferguson that upheld racial segregation.

The resolution also appeared in the ABA Journal story ABA Backs Marriage Equality for Gays and Lesbians.

— Spencer Jones, O’Melveny & Myers, San Francisco, California

ABA House of Delegates to Consider Same-Sex Marriage Resolution

During the ABA Annual Meeting in San Francisco, August 5-10, 2010, the ABA House of Delegates will consider a resolution in support of marriage equality. The text of the measure calls for the ABA to “urge[] state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.” If adopted, the measure would become official ABA policy.

The ABA’s Section of Individual Rights and Responsibilities submitted the proposal, which has 13 cosponsors, including bar associations in the States of New York, Vermont, Massachusetts, and Washington, as well as the Cities of San Francisco, New York, and Beverly Hills. The proposed resolution builds on previous actions by the House of Delegates, including a 2009 vote urging the repeal of Section 3 of the federal Defense of Marriage Act (DOMA)—which denies federal marital benefits and protections to lawfully married same-sex spouses—and a 2004 vote opposing efforts to enact a federal constitution amendment or other legislation that would prevent states from permitting same-sex marriages. In their report and recommendations to the House, supporters of the measure reject civil unions as a substitute for full marriage equality, calling civil unions a “separate and ultimately inferior system” and comparing the argument for civil unions in lieu of marriage to the reasoning of Plessy v. Ferguson that upheld racial segregation.

U.S. District Court finds DOMA Section 3 to be Unconstitutional

A federal judge ruled in two separate decisions issued in early July that a federal ban on same-sex marriages is unconstitutional because it interferes with a state’s right to define marriage. U.S. District Judge Joseph Tauro’s rulings came in response to two challenges to the 1996 Defense of Marriage Act (DOMA). In the first case, the State of Massachusetts argued that the law denied benefits such as Medicaid to gay married couples in the state, where same-sex unions have been legal since 2004. Tauro agreed, saying the act forces Massachusetts to discriminate against its citizens. The act “plainly encroaches” upon the right of the state to determine marriage, the judge said. In the second case, brought by several Massachusetts same-sex couples, Judge Tauro ruled that DOMA violates the equal protection clause of the U.S. Constitution.

 

Victory in Supreme Court in Christian Legal Society v. Martinez

In a 5-4 decision, the U.S. Supreme Court affirmed the University of California-Hastings’ decision to deny funding to student groups that discriminate against its LGBT students. A public university is not required to subsidize student groups with discriminatory membership policies, the Court ruled.

Hastings’s requirement that officially recognized student organizations be open to everyone does not force the Christian Legal Society to change either its beliefs or its membership practices to stay on campus. A school “may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership,” wrote Justice Ruth Bader Ginsburg in the majority opinion.

In a separate opinion, Justice Kennedy, who typically casts the deciding vote in close cases, said inclusiveness and diversity are especially valuable in a law school, where students of varying backgrounds and beliefs learn through open discussion.

 

Supreme Court Rules that Washington State Must Disclose Petition Signers’ Information

The U.S. Supreme Court ruled in favor of disclosing the names of petitioners who called for a ballot measure that could have repealed an expanded domestic partnership rights law in Washington State last year. The case, Doe v. Reed, centered on Referendum 71, a ballot initiative that asked voters whether they wanted to approve or reject a 2009 “everything but marriage law” for same-sex couples.

Writing for the majority in the 8-1 ruling, Chief Justice John G. Roberts ruled that the plaintiffs’ arguments about potential harm were ancillary to the fundamental question before the court of whether such disclosure violates the First Amendment. “Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, plaintiffs’ broad challenge to the [Washington Public Records Act] must be rejected.” Justice Thomas was the sole dissenting justice in the case.

IRS Changes Tax Filing Rules for Registered Domestic Partners in California

The Internal Revenue Service (IRS) has ruled that same-sex couples must be treated the same as heterosexual couples under a feature of California tax law. Advocates for the change say it is the first time the agency has acknowledged gay couples as a unit for tax purposes.

The change reverses a 2006 IRS ruling and opens a tax benefit to many same-sex couples that wasn’t available before. Nearly 58,000 couples registered as domestic partners in California must combine their income and each report half on their individual tax returns. The ruling may also affect couples in Nevada and Washington State.

LGBT Domestic Violence Toolkit for Attorneys

The ABA, in collaboration with the National LGBT Bar Association, has released an LGBT Domestic Violence Toolkit designed specifically for attorneys. This legal resource was produced as part of the ABA’s Legal Assistance and Education for LGBT Victims of Domestic Violence Project, which was created to provide national leadership and education on domestic violence issues in LGBT communities. The toolkit contains helpful resources to assist attorneys and their clients in better understanding and responding to domestic violence in the context of LGBT relationships.

What Lawyers Need to Know About Representing LGBTQ Youth

A complete video recording of an informative panel hosted by the ABA Children’s Rights Litigation Committee at Cardozo Law School in April 2010 is now available online. The program, “What Lawyers Need to Know About Representing LGBTQ Youth,” focused on providing lawyers with advocacy tools to successfully represent lesbian, gay, bisexual, transgendered, and questioning (LGBTQ) youth in a variety of settings. View the four-part video recording below (you may need to click the “play” button again if a video pauses).

White House Agrees to Compromise for Reform of "Don't Ask, Don't Tell"

A proposal to step up the repeal of the ban on gays and lesbians serving openly in the military but still allow the Pentagon time—perhaps even years—to implement new policies recently won the White House’s backing after administration officials met with gay rights activists. “The proposed amendment will allow for completion of the comprehensive review, enable the Department of Defense to assess the results of the review, and ensure that the implementation of the repeal is consistent with standards of military readiness, effectiveness, unit cohesion, recruiting and retention,” Budget Chief Peter Orszag wrote in an evening letter to Rep. Patrick Murphy (D-PA), who is leading the repeal in the House.

President Obama Extends Hospital Visitation Rights to Same-Sex Partners

President Obama has requested that the Department of Health and Human Services begin rulemaking and eventually enter regulations prohibiting hospitals that receive Medicare funds from preventing LGBT patients’ same-sex partners from having full visitation rights. This executive order will ensure that LGBT patients’ choices about who may make critical healthcare decisions for them will be honored, and it’s perhaps the most significant step so far in President Obama’s efforts to expand the rights of gay and lesbian Americans.

Judge Strikes Down Arkansas Adoption Ban

In a closely watched case brought by the ACLU challenging a successful 2008 Arkansas ballot initiative that bans unmarried couples from adopting children and serving as foster parents, a circuit court judge found the new law to be unconstitutional. “It infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas,” wrote Circuit Judge Chris Piazza. The decision is expected to be appealed to the Arkansas Supreme Court.

Paul Smith to Receive 2010 Thurgood Marshall Award

The American Bar Association Section of Individual Rights and Responsibilities named civil liberties and human rights attorney Paul M. Smith as the recipient of this year’s Thurgood Marshall Award, which will be presented on August 7, 2010, at the ABA Annual Meeting in San Francisco.

An openly gay partner in the Washington, D.C., office of Jenner & Block, Smith is one of the country’s leading lawyers in the areas of First Amendment litigation and appellate advocacy. He has presented oral argument in more than a dozen Supreme Court cases, including his groundbreaking advocacy in Lawrence v. Texas, the landmark gay rights case that is often compared in significance to the Brown v. Board of Education case, which was argued and won by Thurgood Marshall. Smith has not only led the way in advancing LGBT civil rights, but he has also been a leading advocate in addressing voting rights issues, including arguing three times before the U.S. Supreme Court in voting rights matters since 2004.

Inclusiveness Efforts Highlighted in the ABA Journal

Inclusiveness efforts seek to make LGBT lawyers—and all others—feel at home. Legal employers are increasingly realizing that their efforts at creating diversity—simply recruiting a certain number of LGBT attorneys every year—has resulted in little growth in the number of such lawyers who stay long term and move into leadership ranks. So some have shifted their focus to creating workplaces in which LGBT and other minority candidates feel understood, appreciated, and respected. The expectation is that those attorneys will be more creative and productive and less likely to move on.”

Washington, D.C., Begins Marrying Same-Sex Couples

Following Justice Roberts’ decision to keep the Supreme Court out of the matter, Washington, D.C., became the sixth jurisdiction to allow gay marriage on March 3, 2010. Before the day was over, about 150 gay couples had filed for marriage licenses. On a normal day, D.C. Superior Court processes about 10 marriage licenses.

Perry v. Schwarzenegger: Challenge to Proposition 8 Brought by the American Foundation for Equal Rights

On January 11, 2010, a remarkable legal case opened in a San Francisco courtroom—on its way, it seems almost certain, to the Supreme Court. Perry v. Schwarzenegger challenges the constitutionality of Proposition 8, the California referendum that, in November 2008, overturned a state Supreme Court decision allowing same-sex couples to marry. Its lead lawyers are unlikely allies: Theodore B. Olson, the former solicitor general under President George W. Bush, and a prominent conservative; and David Boies, the Democratic trial lawyer who was his opposing counsel in Bush v. Gore. The two are mounting an ambitious case that pointedly circumvents the incremental, narrowly crafted legal gambits and the careful state-by-state strategy that leading gay-rights organizations have championed in the fight for marriage equality. The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage. Recent filings and court developments can be found here.

Gill v. Office of Personnel Management: GLAD’s Federal Challenge to Section 3 of the Defense of Marriage Act

In the first concerted, multi-plaintiff legal challenge to Section 3 of the federal Defense of Marriage Act (DOMA), GLAD filed a lawsuit on March 3, 2009, on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. Specifically, the lawsuit challenges the federal government’s denial of marriage-related protections and benefits to legally married Massachusetts same-sex couples, protections, and benefits that are available to all other legally married couples. Recent filings and court developments can be found here.

Ninth Circuit Rulings on Gay Couples’ Benefits Question Defense of Marriage Act

Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals ruled that Mr. Tony Sears—who married Mr. Brad Levenson, a deputy federal public defender, last July—is entitled to the same spousal benefits that heterosexual couples employed by the department receive. The 9th Circuit's chief judge, Alex Kozinski, also weighed in on the subject previously, granting benefits to the same-sex spouse of a staff attorney for the court. But he stopped short of basing that decision on constitutional grounds.

Related Resources:

Filings Before the California Supreme Court