Category: LGBT

5

#OnTheEdge

For those so inclined/interested/bemused/not yet tired of hearing about it…

The New York State Assembly has just introduced a series of amendments to the same-sex marriage bill. They are available here. The amendments were drafted during three-way consultations with Governor Cuomo (and his team), a select group of NY State Senate Republicans and Senate Democrats. Assembly Speaker Sheldon Silver, who seems like he has been Assembly speaker since the Taft Administration, is cool with the amendments. It will pass the Assembly, and one would imagine the amendments would not be introduced in the Assembly were they not guaranteed to pass in the Senate.

One point of politics and one point of analysis. First, to sausage-making. State Senator Ball, a Republican from somewhere other than New York City, came out against the bill before the amendments were finalized. His statement is irking some in the gay blogosphere:

Knowing that marriage equality was likely to pass, I thought it important to force the issue of religious protections. Over the past few weeks, I’ve had the distinct opportunity of listening to literally thousands of residents, on both sides of this issue, by holding an undecided stance. I thought it was important to listen to all of my constituents and hold an undecided position until the actual bill language was written and everyone’s voice had been heard. Now that the final text is public, I am proud that I have secured some strong protections for religious institutions and basic protections for religious organizations. The bill still lacks many of the basic religious protections I thought were vital, and for this reason, and as I did in the Assembly, I will be voting ‘no.’”

Some have read that statement to mean that Senator Ball “took,” or, rather feigned, “an undecided stance” in order to push through a number of religious exemptions. Their evidence is not just his language — saying you took an undecided position is not the same as saying you were actually undecided — but also his public decision to vote note before the amendments came out. So, some argue, he faked his way through, knowing he was going to jump ship anyway. That is the argument, at least. I prefer to be a little more optimistic about life (what’s that old saying? the optimist and the pessimist are born and die on the same day, but the optimist lives better?), but what do you think?

As for the amendments themselves, the sticking point has been so-called religious exemptions to the marriage law. I spoke to Brian Ellner (a pro-gay marriage lobbyist who had been working with the drafters and their staffs) and said that religious exemptions are fine — why would I want a clergyman who dislikes gay people to marry me? — but if the exemptions allowed, say, a Jesuit hospital to deny visitation rights to a same-sex married spouse, I would object.

The amendments first clause specifically refers to objections to “the solemnization or celebration of a marriage,” though an admittedly broad reading of the word “celebration” could include any type of “recognition” of the marriage. I hardly think that is a valid interpretation, though.

The second amendment is a bit trickier. It reads: “Nothing in this Article shall limit or diminish the right … of any religious … institution or organization,” or a charitable organization run in connection with a religious organization, “to limit employment or sales or rental of housing … or admission to or give preference to persons of the same religion … or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.”

This appears to be what I was worried about. In New England and in the Mid-Atlantic states (as, I am sure, elsewhere), we have lots of hospitals connected to religious orders (I was born in one!), which could “tak[e] such action” to promote their religious principles by denying spousal visitation rights to legally married same-sex spouses. On the other hand, hospitals with emergency rooms still have to take patients as they come; but it seems that a hospital that treats a gay man, but refuses to let his spouse sit by his death bed, would not be in violation of any law. Still, President Obama has issued regulations that require any hospital receiving federal funds to, among other things, allow for visitation of same-sex partners. Thoughts?

Finally, there is severability. One of the amendments requires that the law remain unseverable, so if one part is found to be unconstitutional, the whole law goes down as unconstitutional. That clause is becoming increasingly common in New York State laws, but I wonder if it could pose difficult questions down the road. What if a hospital connected to a religious order does indeed deny visitation. One reading the gay marriage bill would suggest that hospital could do so; but, then it would run afoul of President Obama’s hospital visitation rule and, say, Article 28 – § 2805-Q of the New York Public Health Law that requires visitation at “any” hospital. How would this play out? Would the severability clause — which, a friend reminded me, is not always sacroscant (United States v. Jackson, 390 U.S. 570 (1968) (punishment portion of federal kidnapping statute was severable despite nonseverability clause)) — become a problem for gay marriage?

In the end, if these amendments mean I can marry the man I love in my beloved home state, then I embrace them. I’m about to draft a similar post for the gay community over at Towleroad. I wonder what my commenters will think.

23

The Virtue of Marriage

I have been remiss in many of my posts, talking sometimes about theory and then getting caught up in the same-sex marriage debate in New York, that I forgot that one of Co-Op’s great assets is close analysis of case law. The splendid Turner symposium is only one example of that. So, I thought I would combine an important case with current events.

Yesterday, I had the wonderful opportunity to participate on a conference call with a few pro-gay marriage advocates in Albany and the staffs of some senators. This was probably more a who-you-know, rather than what-you-know opportunity because there are far more experienced minds than mine working hard on same-sex marriage. I casually mentioned that I don’t think referring to my desire to join the institution of marriage as an issue of “rights” is all that persuasive to folks whose interpretations of religious texts make them wary or concerned for the rights of other religious people and institutions. After all, I said, by saying our rights should win out, we are not so subtly minimizing their rights, which have to be regarded as at least competing.

Speaking about marriage outside the rhetoric or rights — “marriage equality”, “we all have the right to marry the one we love” are just two of the common phrases, signs and lines you see at pro-gay marriage rallies — is a bit of a heresy in the gay community. It’s a heresy that I embrace and am starting to write about in my scholarship. It’s a heresy because freedom of choice and non-discrimination are not what the marriage debate is about; those concepts only take us so far. Rather, it’s about whether my union is worthy of social recognition. To see this idea, we need look no further than Massachusetts’s landmark same-sex marriage decision, Goodridge v. Department of Public Health (but we do have to go after the jump!).

Read More

0

All Eyes on Albany

If the Co-Op world is interested, the New York State Senate is expected to meet today starting at 11 am Eastern (now-ish!) to consider at least two final issues before the end of the legislative session. At the top of the list are, you guessed right, rent control and property taxes. :)

Though Governor Cuomo’s team of staffers, Brian Ellner’s team of lobbyists and State Senate Republicans met all weekend to discuss the possibility of a vote on same-sex marriage, there are hints of progress, but no deal just yet. The bill passed the State Assembly for the third time by a wide margin, so the fate of gay New Yorkers wishing to take part in the tradition of marriage remains in the hands of a few Senate Republicans. We don’t know if a vote will even happen today.

Setting aside those who oppose same-sex marriage because they have a visceral opposition to gay people, the sticking point is religious exemptions to the law. Senators Ball, Grisanti and Galand, all upstate Republicans, want broad exemption language that would, in their opinion, prevent religious institutions or individuals from being forced to violate their opposition to same-sex marriage. The problem with that argument is two-fold: (1) those protections are already part of NY state law, and (2) it is one thing to say a church does not have to perform a same-sex wedding if same-sex relationships are incompatible with the church’s teachings (this is a bill about civil marriage, anyway); it is quite another to allow a hospital to ban a man from the death bed of his legally married spouse if the hospital to which EMTs rushed them is affiliated by this or that religious order. Should a same-sex couple, one member of which just had a stroke or a heart attack or was in an accident or was attacked, have to tell the EMTs to go an extra 20 miles to Elmira General because the local St. Peter’s refuses to treat gay people? That is just the kind of perverse situation in which gay New Yorkers would find themselves if Senator Ball’s overly broad exemptions are accepted. To be sure, there could be lawsuits, challenges and demand letters from the ACLU challenging the hospital’s refusal, but their potential success is irrelevant to the gay couples who may be victimized before the wheels of justice move forward.

One other point on this topic. I started a small Facebook group asking friends to commit to donating to NY Senate Republicans who voted for same-sex marriage, hoping to show them that it would be a good thing for their political careers and campaign coffers to vote in favor. Yet, a few lovely people I know found this idea offensive — an ex post donation as a thank-you for voting one way on a particular issue. Admittedly, I see a difference between that and generally supporting a politician every cycle, but how is this any different than upping your donation (or your commitment through volunteering) to a candidate in the next cycle after he or she votes the way you wanted on any given issue or issues?

5

Cyberharassment’s Waterloo

I begin my Co-Op blogging stint with deep appreciation for Danielle Citron’s invitation and for the entire Co-Op community’s indulgence. I am honored to be a small part of a wonderful online community that brings out the best in us and, for that matter, Web 2.0. My name is Ari, I am a Legal Scholar Teaching Fellow (just like a VAP) at California Western School of Law and I am a student of the interplay among the First Amendment, the Internet and other modern technologies and their effects on minority populations, like gays and lesbians. I go on the professor job market this Fall. I have a weekly blog (every Wednesday) over at the country’s most popular gay news site, Towleroad, for those interested in perspectives on LGBT legal issues for a mass audience. I also have a healthy relationship with physical fitness and an unhealthy relationship with the store Jack Spade. If there’s counseling for the latter, I’d appreciate a reference. Kidding…

For my month of blogging, I hope to engage with you in a few conversations, mostly about cyberharassment and the First Amendment, and hopefully with a healthy dose of humor.

My current project is the third in a series of projects about cyberharassment. The previous articles, available here, address the effects of cyberharassment on LGBT youth, argue for the use of affirmative “soft power” rather than after-the-fact criminalization to solve the problem and create a new analytical framework for adjudicating student free speech defenses to a school’s authority to punish cyberaggressors. Now I am considering the effect that cyberharassment, particularly harassment of a minority group, has on civic participation and the realization of democratic values. I argue that Internet intermediaries self-regulation of their sites and services to filter out hate, sexual harassment and other aggression conforms with long-standing First Amendment values.

Like President Obama likes to say, let me be clear. I do not mean to suggest that the First Amendment applies as a limit on the activities of private actors like Facebook or MySpace or Google; rather, I think that contrary to libertarian First Amendment scholars, we can expect these online intermediaries to regulate content and say that doing so reflects the democratic interests that underly the First Amendment.

Here’s the draft argument in brief that I am currently working out: The view of the Internet as an unencumbered and unfettered town square deserving the same Rawlsian liberal approach to free speech is wrong. Every online interaction is governed by intermediaries of varying kinds, all of which are the filters through which our online speech makes it through to our online communities. Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society. We see this more Aristotelian/communitarian approach to First Amendment values in intermediary jurisprudence — from publishers to book stores, and from schools to workplaces. And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook.

This project is in the early stages, and I always welcome comments/suggestions/evisceration of the argument. More to come…

I look forward to continuing this and other discussions with this splendid community.

3

Same-Sex Marriage in New York

2009 was a big year for same-sex marriage. In 2009, the Iowa Supreme Court became the first state high court to issue a unanimous opinion in favor of marriage equality for same-sex couples. 2009 was also the year in which a U.S. jurisdiction (well, it turned out to be jurisdictions) achieved marriage equality legislatively. Vermont was the first such jurisdiction, followed by New Hampshire, Maine, and then DC. (Ultimately, however, the Maine legislation was repealed by voter referendum.) Although a number of states — including Delaware, Hawaii, and Illinois — have enacted civil union legislation since then, no additional states have been added to the marriage equality list.

But that might change soon; New York might join the list in the near future. Many expected New York to approve same-sex marriage legislation in 2009, but that did not come to pass. This time around, the legislation has support from a broad range of sources. Last week, the New York Times reported that the same-sex marriage campaign in New York is receiving “the bulk of their money” from “a group of conservative financiers and wealthy donors to the Republican Party.” There is also support from New York political leaders, including New York City Mayor Michael Bloomberg, and Governor Andrew Cuomo.

Another source of support is the organized Bar. A press conference was held today in New York by various bar associations that support marriage equality. The groups include the New York State Bar Association and the Association of the Bar of the City of New York, along with a number of other New York state and local bar associations. The list of supporters also comprises a wide array of minority bar associations, including the Asian American Bar Association of New York, the Dominican Bar Association, the Hispanic National Bar Association, the Muslim Bar Association of New York, the Puerto Rican Bar Association, the South Asian Bar Association of New York, and the Women’s Bar Association of the State of New York.

Last year, in August 2010, the American Bar Association likewise took a position in support of marriage equality. The resolution, which was approved overwhelmingly by the ABA House of Delegates, provides that the ABA urges states to “eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

A recent poll reported that 58% percent of New Yorkers support marriage equality for same-sex couples.

5

LGBT Judges

Yesterday, the Massachusetts Governor’s Council confirmed (by a split 5-3 vote) the first openly lesbian or gay member of the Massachusetts high court. And, of course, in recent weeks, there has been much discussion in the media and in the blogosphere about the relevance of Judge Walker’s sexual orientation with respect to his qualifications and ability to judge impartially. The appointment of Justice Lenk and recent events involving Judge Walker offer us a good opportunity to reflect on the status of LGBT people in the state and federal judiciary.

In the last several years, openly LGBT people have joined a number of state high courts. There are two openly LGBT justices on the Oregon Supreme Court — Justice Rives Kistler and Justice Virginia Linder, who became the “first openly lesbian judge to serve on a state supreme court anywhere in the US” when she was appointed to the court in 2007. Earlier this year, Justice Sabrina McKenna became the first openly LGBT person to join the Hawaii Supreme Court. Just months earlier, Justice Monica Marquez joined the Colorado Supreme Court as its first openly LGBT member. Although actual statistics are hard to come by, it appears that there are a number of openly LGBT judges sitting on lower state courts. It has been reported, for example, that there are 15 openly LGBT judges sitting on state courts in Cook County, IL. And this past fall saw the first election of an openly transgender judge, Judge Victoria Kolakowski.

While there unquestionably are more openly LGBT judges today than there were 10 or 20 years ago, they still comprise a very small percent of all judges, and this is particularly true on the federal level. In 1994, Judge Deborah Batts became the first openly gay Article III federal judge. Close to 20 years later, with the retirement of Judge Vaughn Walker, Judge Batts once again holds that title. Judge Batts is a federal district court judge; there are no openly LGBT members of the federal appellate courts.

Given that many people look to the federal government as a source of protection for vulnerable groups, it is interesting to consider why the states seem to be doing a better job of getting qualified LGBT people on the bench.

6

For the Love of Hate: Why We Have Little to Fear from the Westboro Baptist Church

The “marketplace of ideas” conception of free speech is deeply flawed, not least because it unjustifiably presumes a level playing field and equal access. It also gives rise to the notion that there is no harm in giving false ideas free run because the truth will win out in the end. This myth was debunked by none other than John Stuart Mill, often credited as the father of the marketplace model of free speech: “[T]he dictum that truth always triumphs over persecution is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution.”

However, as the saying goes, even a stopped clock is right twice a day.  The naive – often disingenuously so – belief that “the true and sound will survive” while “the false and unsound will be vanquished” is occasionally vindicated, as it is in the case of the Westboro Baptist Church. The Church may have “won” in Snyder v. Phelps, but in a much more important sense, it has lost as spectacularly as any hateful group in recent history. One is hard pressed to find a group more universally hated across the ideological spectrum than the Westboro Baptist Church. Vocal critics of the Church include Bill O’Reilly, Sarah Palin, Michael Moore, and Jon Stewart. Numerous Christian organizations have condemned Westboro, as has the Ku Klux Klan (that’s right – the Ku Klux Klan finds Westboro’s practices too extreme). As of today, none of Westboro’s charmingly-named sites (godhatesfags.com, godhatesyou.com, priestsrapeboys.com, etc.) is accessible online, thanks to the efforts of either the hacking collective Anonymous or a self-proclaimed adversary of Anonymous who calls himself The Jester. Anonymous is currently under investigation for attacking MasterCard and Amazon on behalf of Wikileaks; The Jester claims responsibility for the cyber attack on Wikileaks last November. In other words, perhaps the most extraordinary thing about the Westboro Baptist Church is its ability to serve as a common target for groups who passionately disagree with and even hate each other.

Read More

7

(A few reasons) why Angela Onwuachi-Willig should be appointed to the Iowa Supreme Court

Various law blogs have mentioned the news that University of Iowa law professor Angela Onwuachi-Willig is on the short list for the Iowa Supreme Court

Angela is a leading scholar on topics of racial justice and critical race theory.  She is the only woman on the shortlist, as well as the only person of color

In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist.  I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.