Archives – June, 2010
By Julia Rosen
It’s a pretty slow news day with a bunch of smaller stories, so I figured it was time for a linkfest. Here for your reading and commenting pleasure:
A recent poll found that 63% of LGBTs oppose the AZ law show me your papers law, 45% strongly. Meanwhile 33% of Heterosexuals oppose the Arizona law, 22% strongly. (via Pam’s House Blend)
Speaking of the AZ law, the Phoenix Gay and Lesbian Chamber of Commerce is asking that the LGBT groups end their boycott of the state and accused them of “grandstanding” on the issue. Yes, let’s just throw people under the bus so you can make more money.
Aubrey Sarvis from SLDN is warning that the final vote on the defense bill that currently has a delayed DADT repeal included may not get voted on until December. That is of course when the Pentagon working group is done with their report. Who knows what will be in there and it could complicate efforts for final passage.
Elana Kagan was asked about marriage equality during her confirmation hearing. As would be expected, she really didn’t break any ground, refusing to talk about potential issues that could come in front of her as a judge on the Supreme Court. Video is up at Towleroad.
On a personal note, this will be my last post here as your faithful blogger, as it is my last day working for the Courage Campaign. Expect to see more of Robert Cruickshank’s writing around these parts. It’s been a pleasure writing here and getting to know the regular commentors. And I’ll be watching closely as this trial continues. Who knew real court cases could be as action packed as a John Grisham novel.
By Julia Rosen
Ted Boutrous sent a letter today to Judge Walker about the relevance of the Supreme Court’s decision yesterday in Christian Legal Society v. Martinez. It turns out that I was hasty yesterday to say that there was little of relevance between Perry v. Schwarzenegger and the recent decision. Karen Ocam has the letter on LGBT POV.
June 29, 2010
The Honorable Vaughn R. Walker
Chief Judge of the United States District Court
for the Northern District of California
450 Golden Gate Avenue
San Francisco, California 94102
Re: Perry v. Schwarzenegger, Case No. C-09-2292 VRW
Dear Chief Judge Walker:
I write on behalf of Plaintiffs to bring to the Court’s attention yesterday’s decision in Christian Legal Society v. Martinez, No. 08-1371 (U.S. June 28, 2010) (attached hereto as Exhibit A).
In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: “Our decisions have declined to distinguish between status and conduct in this context.” Slip op. at 23 (citing Lawrence v. Texas, 539 U.S. 558, 575 (2003); id. at 583 (O’Connor, J., concurring in judgment); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)). This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment) (emphasis added). See also Romer v. Evans, 517 U.S. 620 (1996) (treating gay and lesbian individuals as a class for equal protection purposes). The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.
In his closing argument, counsel for Proponents claimed that High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), and its dubious statement that “homosexuality is not an immutable characteristic; it is behavioral,” id. at 573, forecloses heightened scrutiny in this case. But as this Court explicitly recognized at the hearing on Proponents’ motion for summary judgment, High Tech Gays, which relied on the now-overruled Bowers v. Hardwick, 478 U.S. 186 (1986), rested on a moth-eaten foundation.
To the extent that anything is left of High Tech Gays after Lawrence, Christian Legal Society has abrogated it entirely.
/s/ Theodore J. Boutrous, Jr.
Theodore J. Boutrous Jr.
Counsel for Plaintiffs
Boutrous is arguing that this case further buttressed several fundamental arguments they are making, that sexual orientation is immutable and that the LGBTs are a class that can be protected.
It will be interesting to see what if anything the defendants send to Judge Walker about Christian Legal Society v. Martinez.
By Julia Rosen
The best summary of this case I’ve seen was by Adam Bonin over at Daily Kos, who writes:
And today it’s My Religion Doesn’t Like The Gays versus Our Policies Say You Can’t Discriminate Against Gays, in the context of the a student religious group at the Hastings College of Law — a part of the California public educational system.
The schools won with a 5-4 ruling. The Supreme Court upheld the ability for public schools to deny recognition and funding to campus organizations who violate the school’s non-discrimination policies. In this case the University of California’s Hastings School of Law had in place a non-discrimination policy against LGBTs and the had a request for recognition/support from Christian Legal Society, whose by-laws include:
In view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual
from CLS membership…. [including] all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.
Ruth Bader Ginsberg, whose husband recently passed away read the majority decision in court today. Kennedy and Stevens wrote concurring decisions. Alito wrote the dissent.
Adam adds this crucial reminder of the limitations of this ruling:
It’s important to recognize the limits of today’s decision. It’s not “all student groups must allow all students at all campuses.” It’s simply this: if a school wants to have an “all comers” policy, then it’s allowed to enforce it and override the discriminatory beliefs of a group seeking recognition — in other words, that the government is not required to fund discrimination. Different universities, however, can make their own decisions as to what works for them.
We can’t really see this as a test of how Perry v. Schwarzenegger would go, but it is heartening to once again see Justice Kennedy on the side of the good.