Archive | Gay Rights

Nigeria Outlaws Membership in Gay Rights Groups

Reuters reports; the law apparently provides that,

Any person who registers, operates or participates in gay clubs, societies and organizations or directly or indirectly makes public show of same-sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison.

The law also “contains penalties of up to 14 years in prison and bans gay marriage,” though “[u]nder existing Nigerian federal law, sodomy is [already] punishable by jail.” For a similar recent incident, see the report on this Uganda bill, which was passed by parliament and is now before the president for signature. Appalling.

Thanks to Robert Dittmer for the pointer. [...]

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New Mexico Supreme Court Strikes Down State Law Limiting Marriage to Opposite-Sex Couples

In today’s decision in Griego v. Oliver, the New Mexico Supreme Court struck down state laws that limit marriage to opposite sex couples. I welcome the result, but would have preferred that the court based its decision on the ground that laws banning same-sex marriage discriminate on the basis of gender.

The court ruled that the laws discriminate on the basis of sexual orientation, and that laws discriminating against gays and lesbians must be subject to heightened intermediate scrutiny “because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination.” Ruthann Robson has a good summary at the Constitutional Law Prof Blog. The court based its decision on the New Mexico state Constitution rather than the federal constitution, so it almost certainly will not be reviewed by the federal Supreme Court. New Mexico has thereby become the 17th state to recognize same-sex marriage.

Although the court ruled that bans on same-sex marriage are unconstitutional, it rejected the alternative argument that they violate the state constitution because they discriminate on the basis of sex, even though the New Mexico state constitution includes an Equal Rights Amendment that forbids sex classifications unless they have a “compelling justification.” Here is the court’s reasoning on that point:

We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at

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Brown v. Buhman isn’t so complicated

To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. [...]

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Germany’s President May Be Boycotting the Sochi Olympics

German President Joachim Gauck may be boycotting the Winter Olympics in Sochi, Russia, in order to protest Russia’s human rights abuses:

German President Joachim Gauck will not represent his country at the Winter Olympics in Sochi, Russia, his office says.

The announcement makes Gauck, a former pastor, the first major political figure to boycott the games, which will be held at the Black Sea resort in February.

According to a report in the German publication Der Spiegel, Gauck made the decision in protest against human rights violations and the harassment of Russian opposition political figures. The magazine said the Russian government was informed of his decision last week.

But Gauck’s office is downplaying the report. “He simply decided not to go,” his spokesman Tobias Scheufele told CNN. “We’re not saying anything about his motivations.”

Others have called for a boycott to protest Russia’s recent crackdown on gays and lesbians, which is just the tip of the iceberg of the Russian government’s repressive ways under the rule of Ex-KGB Colonel Vladimir Putin.

Washington Post blogger Jennifer Rubin argues for a limited boycott by world leaders:

The athletes are going to the games, for better or worse. (On one hand the almighty dollar and the bizarre primacy of sports make one queasy, on the other, one can sympathize with the young people who’ve devoted their lives for the perfect performance at just the right time.) But the politicians are an unnecessary and therefore dispensable part of the proceedings….

It would be a small but telling gesture if the Obama administration and all members of Congress would steer clear of Sochi. The athletes in full view of hundreds of millions around the world can compete — and then snag their endorsements. Refusal to grace Sochi with the presence of the

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Religious Liberty and SSM: A Response to Concerns in Illinois

The Illinois legislature is considering a bill that would extend marriage to same-sex couples. In response, a group of religious-liberty scholars have urged the governor and legislative leaders to include what they call a “marriage conscience protection” that would significantly expand the scope of religious exemptions already provided in the bill, and would insert additional substantive exemptions that would broadly expose married same-sex couples to discrimination in both the public and private spheres.  The letter objecting to the Illinois marriage bill follows very similar warnings about religious liberty that these same scholars have sent to many other states considering same-sex marriage legislation.  (See, for example, a link to some of their letters here.)

There has been significant debate about whether same-sex marriage actually generates additional problems for religious liberty, and about whether and to what extent gay-marriage bills should incorporate special protection for religious liberty.  (See, for example, my posts here, here, and here, and the excellent work of Doug NeJaime here.) But there has been no formal response by scholars to the call for broad exemptions in the context of a pending state same-sex marriage bill.  That may have given some legislators the mistaken impression that there is a scholarly consensus behind the specific concerns and broad carve-out proposals advanced by this particular group of religious-liberty scholars.

That starts to change as of today in Illinois.  Law school professors who support both protecting religious liberty and recognizing the marriages of same-sex couples have signed an open letter responding to the religious-liberty scholars’ concerns and their proposed “marriage conscience protection.”  The signers of the response are Andy Koppelman (Northwestern University), Doug NeJaime (University of California-Irvine), Ira Lupu (George Washington University), William P. Marshall (University of North Carolina), and me.  The letter was coordinated with the help of Third Way, especially its Director of Social Policy & Politics (and my former student [...]

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How Bigoted Speech Advances Equality

In a splendidly written essay in The Atlantic, Jonathan Rauch makes the case for protecting “hate speech” in the context of a proposed boycott by some gay-rights advocates of the movie Ender’s Game (released Nov. 1).  The movie is not itself said to be homophobic but, they urge, it should be boycotted because it is based on a sci-fi novel by Orson Scott Card, who has suggested that enacting gay marriage might lead to the recruitment of children into homosexuality.  Rauch notes that anti-gay speech has had a critical role in advancing gay rights by requiring advocates to calmly and reasonably rebut opposing claims, allowing the public to assess the factual correctness and moral persuasiveness of the competing claims.  It’s a classic Holmesian marketplace-of-ideas theory of free speech:

Our great blessing was to live in a society that understands where knowledge comes from: not from political authority or personal revelation, but from a public process of open-ended debate and discussion, in which every day millions of people venture and test billions of hypotheses. All but a few of those theories are found wanting, but some survive and flourish over time, and those comprise our knowledge. . . .

America’s transformation on gay rights over the past few years is a triumph of the open society. Not long ago, gays were pariahs. We had no real political power, only the force of our arguments. But in a society where free exchange is the rule, that was enough. We had the coercive power of truth.

History shows that the more open the intellectual environment, the better minorities will do. We learn empirically that women are as intelligent and capable as men; this knowledge strengthens the moral claims of gender equality. We learn from social experience that laws permitting religious pluralism make societies more governable; this knowledge

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Could Doctors’ Public Condemnation of Homosexuality Lead to Medical Board Investigation of Doctors?

Yes, say 60% of the state medical boards respondents surveyed in Greysen et al., Online Professionalism Investigations by State Medical Boards: First, Do No Harm, 158(2) Ann Intern Med. 124-30 (2013). Here’s the vignette that was given in the survey:

Discriminatory Speech Online

A concerned staff member at a local hospital reports discriminatory language on a physician’s Facebook page:

“I saw this homosexual patient who came in complaining of dysuria and wants me to help. Well … that’s what you get for being gay. I really don’t feel any compassion for these people — they don’t deserve antibiotics, they need to change their behaviors.”

Note that this didn’t involve breach of patient confidentiality (that was a separate vignette). Nor is it just a matter of when a private or public employer may choose to fire an employee. Rather, this has to do with when a medical board can investigate a doctor, with an eye towards imposing disciplinary measures.

And indeed the Federation of State Medical Boards takes the same view, saying that “State medical boards have the authority to discipline physicians for unprofessional behavior relating to the inappropriate use of social networking media, such as … Discriminatory language or practices online” (again, quite apart from breaches of confidentiality, which are covered by a separate bullet point). “State medical boards have the option to discipline physicians for inappropriate or unprofessional conduct while using social media or social networking websites with actions that range from a letter of reprimand to the revocation of a license.” Moreover, I take it that the reprimands won’t just be the board expressing its own views; rather, the discriminatory-lanaguage-based reprimands can lead to greater punishment in the future for future offenses.

This strikes me as a serious lack of attention to First Amendment rights. Though [...]

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Two Upcoming Speaking Engagements

Over the next two weeks, I will be doing two out-of-town speaking engagements that may be of interest to some of our readers.

On Thursday, October, 3, 12:00-1:15 PM, I will be doing a talk on my new book Democracy and Political Ignorance: Why Smaller Government is Smarter, at Columbia Law School in Jerome Greene Hall, Room 105. Columbia law professor Philip Hamburger will comment.

On Thursday, October, 10, 3:30-5 PM, I will be participating in a panel on the Supreme Court’s recent same-sex marriage decisions at Chicago-Kent Law School, along with Chicago-Kent professors Carolyn Shapiro and Kathy Baker. My presentation will expand on my answer to a question that Justice Scalia famously posed in oral argument in the Proposition 8 case: When did laws banning same-sex marriage become unconstitutional? [...]

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Labor Department Extends ERISA Protections to Same-Sex Spouses

The effect of United States v. Windsor continues to ripple through federal law, expanding by leaps and bounds the rights and protections afforded to same-sex spouses.  The effect has been magnified by a friendly federal bureaucracy under the Obama administration, which is widely adopting a place-of-celebration rule for recognizing same-sex marriages under federal laws using words like ”spouse” and “marriage,”  thus extending federal recognition to same-sex spouses even if they live in states that don’t themselves recognize their marriages. 

The latest installment in this story is the announcement today by the Labor Department that henceforth it will interpret the Employee Retirment and Income Security Act of 1974 (ERISA), which governs most private pension and health plans, to include same-sex as well as opposite-sex spouses.

[T]he term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.

The Department defended its decision to adopt a place-of-celebration rule rather than a place-of-domicile rule based on its reading of Windsor and policy considerations, like a need for uniformity and certainty in coverage of employees who move from one state to another.

This is the most natural reading of those terms; it is consistent with Windsor, in which the plaintiff was seeking tax benefits under a statute that used the term “spouse”; and a narrower interpretation would not further the purposes of the relevant statutes and regulations. . . .  

A rule that recognizes marriages that are valid in the state in

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Censorship of Pro-Gay Movies in Russia

From the Hollywood Reporter:

A Russian television movie channel has been sent an official warning for allegedly airing films that support same-sex relationships.

Russia’s federal media oversight body, Roskomnadzor, on Thursday warned popular movie channel EvroKino after it aired 2007 French musical Les Chansons d’Amour (Love Songs).

The agency said the film contains “propaganda of nontraditional sexual relations.”

For more on the underlying statute, see this post. The movie won a Cesar, the French equivalent of an Oscar in 2008 for best music written for a film. Thanks to the Media Law Resource Center MediaLawDaily newsletter for the pointer. [...]

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Should We Boycott the Sochi Olympics?

Gay rights advocates such as actor Harvey Fierstein are calling for a boycott of the 2014 Winter Olympics in Sochi, Russia, over Russia’s highly repressive new law banning “homosexual propaganda,” any speech that equates the social status same-sex relationships with heterosexual ones.
Others argue that the West should not boycott the Olympics, but should instead use it as an opportunity to highlight Russia’s abuses of gay rights. Russian officials have given conflicting statements about whether the law will be enforced against gay athletes and foreign visitors during the games.

The anti-gay crackdown is just one of many human rights abuses undertaken by the regime of ex-KGB Colonel Vladimir Putin. Others include repression of opposition media and persecution of critics of the government. Indeed, the government’s promotion of homophobia is just one facet of its broader ideology of authoritarian nationalism.

In terms of promoting the cause of human rights in Russia, I suspect that a boycott would be more effective than merely calling attention to abuses, while simultaneously attending the Games. Hosting the Olympics is nearly always a propaganda victory for the government of the nation where they take place. Even an otherwise corrupt and inefficient government can put on an impressive dog and pony show that draws favorable media coverage, if given years to prepare. The nation that gave the world the concept of the Potemkin Village is surely no exception.

A boycott has a greater chance of effectively punishing Russia for its unjust policies, and stimulating pressure for change. Sports boycotts against South Africa may have helped hasten the fall of apartheid. The boycott of the 1980 Moscow Olympics by the US and sixty other nations is often seen as a failure because it did not put an end to the Soviet invasion of Afghanistan. [...]

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Did the Obama Administration have a Duty to Defend DOMA?

I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should choose not to defend it. I outlined my reasoning in greater detail in this post, written at the time the administration first decided not to defend Section 3 of DOMA. That post addresses both theoretical and practical arguments against the president’s decision. [...]

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Right, Left, and the Standing Issues in the Gay Marriage Cases

Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama Administration’s refusal to defend DOMA led the Bipartisan Legislative Assistance Group, made up of members of Congress, to undertake the task. In Hollingsworth v. Perry, California Proposition 8 was defended by a group of private citizens, because the state government chose not to support it. There were serious questions about whether both the BLAG and the Prop 8 supporters had a significant enough stake in the case to qualify for standing under Supreme Court precedent. Ultimately, a 6-3 majority of the Court ruled that BLAG did have standing [Clarification - 5 of them ruled only that BLAG could present arguments defending the interests of the federal government, without reaching the issue of whether BLAG had standing in its own right], while a 5-4 majority concluded that the Prop 8 supporters did not.

Until recently, opinion on constitutional standing issues tended to divide along predictable ideological lines. Conservative jurists usually supported narrow notions of standing, seeking to limit the range of parties who could get into federal court, while liberals supported broad ones. But as I previously pointed out here and here, these ideological alignments have begun to break down over the last few years.

Today’s decisions continue that trend. In the DOMA case, the four liberal justices and Justice Kennedy, the most moderate conservative, concluded that the BLAG has standing [but see update below]. But so too did the conservative Justice Alito. Conservative justices Roberts, Thomas, and Scalia dissented. In Hollingsworth, the distribution of votes was even less ideological. The majority opinion written by the conservative Chief Justice Roberts was joined by liberals Ruth Bader [...]

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The Impact of Today’s Gay Marriage Decisions

It may be a long time before the effects of today’s gay marriage decisions are fully evident. But it seems clear that they represent important progress for same-sex marriage and gay rights more generally. The DOMA case is also a modest success for those who seek to enforce constitutional limits on federal power.

Obviously, the Court’s invalidation of Section 3 of DOMA in the Windsor case gives married gay couples the same rights under federal law as those now enjoyed by participants in opposite-sex marriages. For now, the effects are limited to people married in the 12 states that currently recognize gay marriage, plus California (which now has to recognize gay marriage as a result of the Court’s decision in the Proposition 8 case). But the number of such states is rapidly growing.

Much of the DOMA decision’s reasoning is based on federalism considerations. That aspect of the ruling will not help future plaintiffs seeking to challenge state laws banning gay marriage. But Justice Kennedy’s opinion for the Court also emphasizes that laws based on “animus” against gays and lesbians are unconstitutional:

DOMA seeks to injure the very class [of married gay couples that] New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.

While anti-gay animus is not the only motive for laws banning gay [...]

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The DOMA Decision and Federalism

Justice Anthony Kennedy’s majority opinion for the Court in the DOMA case relies partly on federalism considerations, striking down Section 3 of DOMA in part because it goes beyond the usual scope of federal authority. In reaching this conclusion, it cites (among other sources) the amicus brief submitted by several federalism scholars, including co-bloggers Randy Barnett, Dale Carpenter, Jonathan Adler, and myself (pg. 23). As Kennedy points out, the avowed purpose of DOMA was to promote traditional heterosexual marriage, and “influence or interfere with state sovereign choices about who may be married”:

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality…” The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.

The arguments put forward by BLAG [defending DOMA before the Supreme Court] are just as candid about the congressional purpose to influence or

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