(February 7, 2012)—In a long-awaited decision, a three-judge panel of the Ninth Circuit Court of Appeals ruled today that Proposition 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California, is unconstitutional. Judge Stephen R. Reinhardt authored the majority decision, which was joined by Judge Michael Daly Hawkins. The third judge, N. Randy Smith, dissented.

The majority affirmed the August 2010 ruling by retired United States District Judge Vaughn R. Walker—but on a different legal basis. After a 12-day trial, Judge Walker ruled that Prop 8 is unconstitutional because it deprives same-sex couples of the fundamental right to marry and discriminates against them based on their sexual orientation. In its ruling today, the Ninth Circuit held that it was not reaching or ruling on either of those issues—which would apply to every state that prevents same-sex couples from marrying.

Instead, the court focused on the unique history of Prop 8. California is the only state that first recognized that same-sex couples have an equal right to marry and then permitted a majority of voters to take that right away. The court closely based its ruling on those unprecedented facts, explaining: “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.”

The court reasoned that there is a constitutionally significant difference between refusing to extend a right to a group in the first place and withdrawing a right that has already been extended. “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place … .” While both are harmful, the court noted there is something particularly pointed, harmful, and invidious about stripping away an existing right.  “The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”

The court also discussed the serious injury inflicted on same-sex couples by being excluded from an institution with so much personal and social significance. As the court put it, “marriage is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”

The court ruled that when the voters enacted Prop 8 in 2008, they did so not for any substantive reason, but rather simply to preserve the esteemed institution of marriage only for heterosexual people. Although some supporters of Prop 8 argued that its purpose was to promote parenting by heterosexual parents, Prop 8 did not change the substance of California law dealing with same-sex couples or parents in any way—other than preventing them from enjoying the benefits of being married.  Both before and after Prop 8, California law provides that same-sex parents must be given exactly the same rights, responsibilities, and protections as heterosexual parents.  As the court noted, “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California … and in no way modified the state’s laws governing parentage.”   

Judge Smith’s dissent acknowledged that those supporting Prop 8 assume that permitting same-sex couples to marry would devalue the institution of marriage in the eyes of straight people who disapprove of gay people. Remarkably, however, despite acknowledging that Prop 8 rests on anti-gay animus and “private biases,” Judge Smith concluded that “a measure is [not] invalid under rational basis review simply because the means by which its purpose is accomplished rests on such biases.” This may be the first time a federal judge has voted to affirm an anti-gay marriage law despite acknowledging that it is rooted in irrational bias. That even a judge who voted to uphold Prop 8 conceded that it was based in part on hostility toward gay people speaks volumes about the success of LGBT advocates in exposing the lies and stereotypes that underlie Prop 8 and similar measures.

Judge Reinhardt’s careful, tightly reasoned opinion puts the plaintiffs in the strongest possible position as the supporters of Prop 8 consider their next steps.  The Prop 8 supporters can now ask a larger panel of Ninth Circuit judges to reconsider the decision, or they can go directly to the Supreme Court and ask the justices to consider the case. In the meantime, California same-sex couples who want to get married will need to keep waiting. The Ninth Circuit panel decided to temporarily keep its decision from going into effect, and it is likely the Prop 8 supporters will ask for that temporary hold to continue while they decide on their next move after losing their appeal.

Given the reasoning of the Ninth Circuit’s decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case.  The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications.  The Ninth Circuit’s California-focused decision presents neither of those circumstances.  Unless the Supreme Court breaks with its own tradition and intervenes in the case, it’s possible that wedding bells will be ringing in California again before the end of the year.

Shannon Minter is the Legal Director for the National Center for Lesbian Rights; and Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights.

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 |EOlvera@NCLRights.org

The court ruled that Proposition 8 violates the Fourteenth Amendment to the Constitution because it “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 opposite-sex couples.”

The supporters of Prop 8 have 15 days to ask the Ninth Circuit panel to reconsider its decision or to ask for reconsideration by a larger panel of judges on that court. Alternatively, they have 90 days to request that the Supreme Court of the United States review the case.
NCLR, Lambda Legal, ACLU of Northern California, and Gay & Lesbian Advocates & Defenders filed an amicus brief urging the court to affirm Judge Walker’s decision.

Statement by NCLR Executive Director Kate Kendell, Esq.:

“It is a unique and honored position to be an eyewitness to history. The Ninth Circuit’s ruling finding that Proposition 8 violates the Constitution of this nation marks the first time a federal appellate court has held that a law excluding same-sex couples from the right to marry runs counter to our highest ideals of equality and fairness.  With today’s ruling we are a giant step closer to the day when the promise of our Constitution squares with the lived reality of LGBT people.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 |EOlvera@NCLRights.org

For the last two years, Hurtado has served as the executive director of Equal Rights Advocates (ERA), a San Francisco-based civil rights organization dedicated to advancing equal opportunity for women and girls through impact litigation and advocacy.

“We are incredibly excited to have Arcelia join NCLR,” said NCLR Executive Director Kate Kendell. “She brings a strong progressive vision and a wealth of organizational and legal experience to this critical role. Her skills, values, and leadership are a great match for NCLR, and her voice and talents will elevate our impact.”

Said Hurtado: “I’m thrilled to join NCLR, where I hope to continue and strengthen NCLR’s legacy of cutting edge litigation and commitment to social justice. I am very grateful for this opportunity to work on behalf of LGBT equality and inclusion and use the experience and skills I have gained in my past positions to help NCLR continue its great work. I am proud of all that Equal Rights Advocates has accomplished during my tenure and look forward to future collaborations.”

Hurtado, a Texas native, earned her law degree from the University of California, Berkeley, and has devoted her career to advancing and protecting the rights of women, immigrants, and criminal defendants. Before leading ERA, she was a deputy public defender for San Francisco County and Santa Clara County, and taught constitutional and criminal law at Bay Area law schools. In addition to her professional experience, she has served on the boards of many professional and non-profit organizations. She is also a frequent contributor to the Huffington Post and other outlets, where she writes on a wide range of social justice and civil rights issues.

Said former NCLR Board Co-Chair Emily Doskow, who sat on the hiring committee: “The Board is very much looking forward to having Arcelia join the NCLR team. Her dedication to LGBT equality, combined with her long experience working on social justice issues, will make her a great asset to the organization and the movement.”

Hurtado replaces former Deputy Director Kris Hermanns, who left NCLR in December 2011 to lead the Pride Foundation as its new executive director. Hurtado begins her new role with NCLR in April.

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 |EOlvera@NCLRights.org

Since suffering a devastating loss at the 2010 trial, Prop 8 supporters have tried to block the public from seeing the historic trial video. Last years, Chief Judge James Ware of the U.S. District Court in San Francisco ruled that the video must be available to the public. The Prop 8 proponents appealed that ruling to the Ninth Circuit, which reversed it today. The Ninth Circuit’s decision was based on its determination that Judge Vaughn Walker, who presided over the trial, had made a commitment to the parties that the recording would not be publicly released.   

Statement by NCLR Executive Director Kate Kendell:

 “The court’s decision to keep the people from seeing this public record of one of the most important trials in American history is extremely disappointing. As those lucky enough to have watched the trial saw, the defenders of Prop 8 were unable to offer a shred of evidence to support it, while the plaintiffs presented a mountain of compelling reasons to strike down this unjust and damaging law.  The public deserves the same chance to see the facts for themselves.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 |EOlvera@NCLRights.org

Officials from Planned Parenthood, which offers wide-ranging reproductive health care services, with work focused on pro-choice decision-making and sexual education, say the funding was cut because of pressure from anti-choice groups.

Funding from Komen—$68,000 last year, according to the Associated Press—has covered approximately 170,000 Planned Parenthood breast exams and 6,400 mammogram referrals over the last five years, and none of that money goes towards other programs or services.

Statement by NCLR Executive Director Kate Kendell, Esq.:

“How sad, destructive and unconscionable for Susan G. Komen for the Cure to turn its back on the very women it pretends to help. When self-interest and wealth accumulation become your primary goals, the first casualties are integrity and values. The only action Komen can take to restore some shred of dignity is to reverse this tragic decision.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 |EOlvera@NCLRights.org

Life-planning documents aren’t just for you. As long-time activist and blogger Michael Petrelis recently wrote, they serve to relieve stress and facilitate difficult decisions your loved ones will face without them. LGBT elders are more likely to have families of choice that aren’t recognized by the law (two-thirds of LGBT elders, according to the Movement Advance Project’s report “Improving the Lives of LGBT Older Adults), making these documents all the more important.

For more on life-planning documents, check out NCLR’s publication: Lifelines: Documents to Protect You and Your Family. For more about our Elder Law Project, check out www.NCLRights.org/ElderLaw.

Media Contact: 

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 |EOlvera@NCLRights.org

]]> http://nclrights.wordpress.com/2012/02/01/life-planning-documents-protect-our-families-when-the-law-wont/feed/ 0 nclrights http://nclrights.wordpress.com/2012/02/01/life-planning-documents-protect-our-families-when-the-law-wont/ http://feedproxy.google.com/~r/NationalCenterForLesbianRights/~3/YQe0P1-5l-E/ http://nclrights.wordpress.com/2012/01/31/department-of-housing-and-urban-development-unveils-lgbt-equal-access-policy/#comments Tue, 31 Jan 2012 22:02:01 +0000 nclrights http://nclrights.wordpress.com/?p=9302 ]]> By Maya Rupert, Esq.
NCLR Federal Policy Director

In a powerful speech on Saturday, January 28th, Department of Housing and Urban Development (HUD) Secretary Shaun Donovan made history when he unveiled HUD’s LGBT Equal Access policy—a new rule that will protect more than 5.5 million people across the country from discrimination in public housing and Federal Housing Administration (FHA)-insured mortgages.

The new rule, announced at the National Gay and Lesbian Task Force’s annual Creating Change conference, will improve the lives of LGBT people and families across the country—and marks the first time that any administration has extended such broad protections against housing and mortgage discrimination to the LGBT community.

This rule, which will be published this week and go into effect 30 days later, came after a proposed version of this rule was released in January 2011. In response to the proposed rule, NCLR drafted comments on behalf of over 30 other LGBT, civil rights, and fair housing organizations—many of which were incorporated into the final version of the rule.
Perhaps most significantly, this new rule, which has the effect of law, will prohibit all owners and operators of HUD-assisted or HUD-insured housing from discriminating against an applicant or occupant of a residence based on sexual orientation, gender identity, or marital status.

This is huge.

HUD-assisted and HUD-insured housing account for a large segment of all of housing opportunities. Thanks to this rule, it is now illegal in that housing market to discriminate against our families because of who we are. The rule also prohibits all lenders offering FHA-insured mortgages from considering sexual orientation or gender identity in determining a borrower’s eligibility. FHA-insured mortgages represent a very large share—between 40% and 50% of the mortgage market.

The rule also clarifies the definition of “family” to ensure that otherwise eligible participants in any HUD programs will not be excluded based on marital status, sexual orientation, or gender identity. These programs, including crucial public housing programs like Section 8, will now be accessible to all LGBT individuals and families.

NCLR is proud to have worked closely with HUD on a series of policy changes that target and address housing discrimination against LGBT people.

In 2010, HUD announced that it would require all grant-seekers applying for funds from HUD to comply with any state and local laws prohibiting discrimination based on sexual orientation or gender identity. It also announced the launch of a ground-breaking national study of housing discrimination against members of the LGBT community in the sale and rental of housing.

In another historic move later that year, HUD announced that it interprets the Fair Housing Act’s prohibition against discrimination based on sex to protect transgender and gender nonconforming people. In September 2010, NCLR co-hosted a webinar with HUD that educated HUD staff and housing providers on their new obligations under this guidance.

In December, NCLR partnered with HUD and the U.S. Department of Health and Human Services’ Administration on Aging to hold the first-ever national summit examining housing issues for LGBT elders. The day-long event provided a forum for attendees to discuss ideas and policy proposals to support housing and long-term care designed for LGBT elders.

HUD’s new LGBT Equal Access policy will have an impact that goes beyond increased access to housing and housing services. The homelessness and housing insecurity that results from widespread housing discrimination places our community at increased risk for violence, and while the passage of hate crimes legislation was historic, we urgently need policies aimed at reducing vulnerability to violence.

This new rule will increase access to essential housing services and programs, making it easier for LGBT families to secure home loans, and keep more LGBT people in safe and affordable housing.

It will literally save lives.

We encourage you to contact HUD and thank them for their historic leadership on these important issues and the momentous impact it will have on our families and community. Feel free to email them at LGBTfairhousing@hud.gov. In addition, if you are willing to share your story, please do so by visiting the Obama Pride Facebook page for a chance to have your story featured on President Obama’s blog!

Media Contact:  

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 |EOlvera@NCLRights.org

I head over to Annapolis, MD today to testify in favor of marriage equality in the Senate Judicial Proceedings Committee.

A little history and perspective on Maryland, where I live, and our struggle here for the freedom marry. I first testified in favor of a marriage equality bill in the Maryland State House in 1999, when progressive state legislators introduced a proactive marriage bill to counter a proposed state DOMA bill. With losses on DOMAs in so many states, legislative allies wanted to give same-sex couples the opportunity to testify in favor of a positive measure, to give same-sex couples and their children a chance to talk about why the freedom to marry was important to them. Many did, and that was important, but there was not a significant groundswell of families stepping forward at that time because 12 years ago the marriage bill stood zero chance of passage. At the time, I headed up what is now Equality Maryland.

Priority one for us on the marriage front was to beat back DOMA, to hold Maryland open for a day when we could fight hard for marriage equality AND seriously hope to win it. I testified that one reason that no matter what one’s views were on marriage for same-sex couples, a DOMA bill to block recognition of out-of-state marriages simply was not needed because, unfortunately for our families, at that moment in time there was nowhere in our country – indeed the world – where same-sex couples were permitted to marry. What a different world we live in today! That testimony was an agonizing moment that I recall perfectly, but Maryland never did adopt a DOMA law, one of a handful around the country that refused to do so.

Since then, in this state we have achieved three victories specifically to protect same-sex couples—a limited domestic partner law, domestic partner benefits for state employees’ families, and a favorable marriage recognition opinion issued by Maryland Attorney General Doug Gansler in 2010. Families have begun to receive the protections that they need and many people are working hard to see that opinion fully implemented in all aspects of the law.

If you follow marriage equality news, you know that 2011 was the first serious push for marriage equality in the legislature here. The bill passed the state senate but reportedly was a few votes short in the House of Delegates and was pulled—pointing to the need for a fresh, potent strategy and a more powerful champion. More people got in the game, using lessons from successful marriage equality efforts in Washington, D.C. and New York. A broad coalition was formed, Marylanders for Marriage Equality, of which NCLR is a member organization.

And a new champion was found, whose passion for this issue is clear.

Governor Martin O’Malley has stepped up to lead the fight for marriage equality.

The Civil Marriage Protection Act, Senate Bill 241, is an Administration Bill, meaning the Governor is the lead sponsor. With him co-sponsoring the measure are 20 State Senators, including Senator Jamie Raskin, who is not only my state senator but also was one of my law professors and Senator Rich Madaleno, a long-time dear friend who is also openly gay. Many of the Senate co-sponsors have a history in Maryland of championing various measures to protect LGBT people from discrimination and to beat back hateful and discriminatory measures.

The language of the bill is very simple. It takes what was Family Law 2-201 that read: Only a marriage between a man and a woman is valid in this state.” And changes it to read “Only a marriage between two individuals who are not otherwise prohibited from marrying is valid in this state.” The bill then lists the close relatives that an individual cannot marry. The bill also includes a religious exemption. Importantly, that exemption specifically does not apply where state or federal funds are received for a program or service being supplied by a religiously-affiliated organization.

Leading off the testimony tomorrow will be Governor O’Malley. I’m told that next up will be A.G. Doug Gansler and Joseph Bryce, Chief Legislative Officer to the governor. The testimony will be long and strong in favor of marriage equality, and by agreement of the lawyers’ cadre, I’ll be batting later on in the line-up as a strategic matter.

My testimony will include several lawyerly points about equality under the law, the protections available through marriage, the fact that many states and countries permit same-sex couples to marry. It will also include this:

Marriage Is About Family, My Dad Knew That

I am a Maryland resident who has lived in this state for 22 years, and I share a home in with my spouse, Pat, and our 11 year old daughter Ryan. Pat and I married in Ontario, Canada in 2003 when we planned to be there on vacation with my parents. I am extremely glad we did, because we lost my Dad three years ago. If we had waited to marry in Maryland, he would have missed it. He wanted to see his beloved granddaughter Ryan become the child of married parents, like he and my Mom. He was extremely proud of our family, and he loved Pat and Ryan very much. Initially, my Dad was trying to figure out if we had kids if that made him a grandfather (or not), because we were not able to marry. He was a lifelong Republican and to him, marriage meant family. The denial of freedom to marry meant something too, a brand of inferiority on some families. He understood that perfectly, and what it meant when Pat and I could final marry two decades after we began living together. Hanging up in our home is the collage my Dad made and framed from pictures he took of us on our wedding day. And somewhere in our pile of family pictures are the ones Pat took of him to send to me when she took her turn and flew to Wisconsin to sleep on a cot in his hospital room for a week in the year he lay dying. Love, commitment, mutual responsibility between generations, a lifetime of caring. Family. For so many, that is what SB 241 is all about.

I will talk about the fact that I know several lesbian and gay couples who have refused to marry elsewhere, because they are determined to marry in their home state of Maryland. I have not quite finished writing my testimony – and I also will need to prepare to counter the ridiculous things our opponents are likely to say – but I will likely close with something like this:

Make a difference in the lives of Maryland families, same-sex couples and their children, and put Maryland on right side of history. Vote in favor of Senate Bill 241 and urge your colleagues in the House of Delegates to do the same.

Media Contact:  

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 |EOlvera@NCLRights.org

The plaintiffs, who include Nashville local elected officials, students, teachers, and LGBT rights organizations, filed the lawsuit in June of 2011 because the law violates the equal protection guarantees of the United States and Tennessee Constitutions. The lawsuit alleges that the statute harms the plaintiffs by stripping them of existing rights and protections, putting them at risk of discrimination, and preventing them from obtaining protection from discrimination from municipal and county governments.

After filing the lawsuit, the plaintiffs asked the Court to require disclosure of  communications between the Family Action Council, an anti-gay group involved in creating the bill, and the bill’s legislative sponsors.

“We are disappointed that the Court did not simply order the legislators and the Family Action Council of Tennessee to produce the evidence being withheld from us, but we welcome this opportunity to provide even more proof of the significant harms caused by this mean-spirited and destructive law,” said Abby Rubenfeld, lead attorney for the plaintiffs. “This statute prohibits local elected officials from representing all of their constituents, makes gay and transgender students targets for constant harassment, ties the hands of teachers who want to protect all students from bullying, and attempts to overturn federal law that protects transgender Tennesseans from sex discrimination. These are real and serious harms, and these plaintiffs along with other Tennesseans deserve protection from the courts.”

“HB 600 is especially harmful to gay and transgender youth, who are already vulnerable to bullying and harassment,” said plaintiff Lisa Howe, the former soccer coach at Belmont University. “When we allow legislators to pass laws based on prejudice toward gay and transgender people, we create an environment of intolerance and hostility that fuels violence and discrimination. That is not what this state is or should be about.”

“As a transgender woman, before HB600 passed, I had the same legal protections as other women in this state, but HB600 took those away,” said Dr. Marisa Richmond, President of the Tennessee Transgender Political Coalition. “By passing this mean-spirited law, the legislature has declared open season on transgender people and declared us to be non-people who are not entitled to equal protection of the laws. This is exactly why we need the courts—to ensure that laws apply equally to everyone, and not just to the majority.”

Rubenfeld said that the plaintiffs will file a response to the Court’s order emphasizing the previously stated harm to these plaintiffs and other Tennesseans and outlining why the case should not be dismissed.

“Fifteen years ago, the U.S. Supreme Court ruled in a case challenging a similar law that ‘if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,’ ” said Rubenfeld, referring to Romer v. Evans, which struck down a Colorado constitutional amendment that also barred localities from prohibiting discrimination against gay people. “It is readily apparent to those of us who witnessed the adoption of this challenged law that its actual purpose and intent was to harm LGBT Tennesseans, and it continues to harm them every day it remains on the books.”

“Everyone loses when governments are permitted to target certain groups for unequal treatment,” said Rubenfeld, “and we will fight with everything we have to overturn this shameful and discriminatory law.”

The plaintiffs are represented by Nashville attorney Rubenfeld, the law firm of Morrison & Foerster, and the National Center for Lesbian Rights.

Media Contact:  

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org

The new rule, which will be published next week and go into effect 30 days after that, makes several critical changes to current housing and housing-related programs including: prohibiting owners and operators of HUD-assisted or HUD-insured housing from discriminating against an applicant or occupant of a residence based on sexual orientation or gender identity; prohibiting all lenders offering Federal Housing Administration-insured mortgages from considering sexual orientation or gender identity in determining a borrower’s eligibility; and clarifying the definition of “family” to ensure that otherwise eligible participants in any HUD programs will not be excluded based on marital status, sexual orientation, or gender identity.

The National Center for Lesbian Rights (NCLR) has been a lead partner with HUD as it works to ensure access to fair and affordable housing for the LGBT community. NCLR drafted comments on behalf of  more than 30 LGBT, civil rights, and fair housing organizations that offered feedback on this new policy when it was initially proposed. In December 2011, NCLR co-hosted the first-ever federal summit along with HUD and the Department of Health and Human Services (HHS) on LGBT elder housing.

Statement by NCLR Federal Policy Director Maya Rupert, Esq.:

“This rule is truly historic for the LGBT community and the impact it will have on all of our lives cannot be overstated. Thanks to the remarkable efforts of the Obama administration, and especially HUD Secretary Shaun Donovan and Assistant Secretary John Trasviña and their staffs, LGBT people and their families will now enjoy critical protections from housing discrimination based on sexual orientation and gender identity. This will improve the lives of countless families and individuals across the country who no longer have to fear being denied housing  because of who they are. We applaud HUD for its leadership and commitment to fairness and justice.”

Media Contact:  

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org