#EqualityDay: Anniversary of Multiple LGBT Legal Victories!

Happy #EqualityDay! Today is June 26, which is an auspicious day for LGBT equality in the United States. In 2003, the Supreme Court finally affirmed the basic humanity of LGBT citizens and eliminated the remaining state laws banning sodomy in Lawrence v. Texas; In 2013, the state struck down the odious Defense of Marriage Act which had prohibited the federal government from recognizing legal same-sex marriages in United States v. Edith Windsor and also ruled in Hollingsworth v. Perry that California's Proposition 8 was unconstitutional; in 2015's Obergefell v. Hodges the Supreme Court struck down all state-based bans on recognition of same-sex marriage (including California's Proposition 8) effectively legalizing marriage equality nationwide! (A curious fact is that all of these LGBT-supportive decisions were written by Anthony Kennedy, a Reagan appointee and Republican conservative jurist.)

CELEBRITY FRIDAY: Edie Windsor, 88, Is Dead

Edith Windsor was the named plaintiff in the landmark civil rights lawsuit, Windsor v. United States, which challenged the constitutionality of the 1996 "Defense of Marriage Act." In 2013, the United States Supreme Court struck down DOMA and two years later marriage equality was the law of the land following another high court decision in Obergefell v. Hodges. Windsor died this week at age 88, and President Barack Obama issued a statement in memoriam:

America’s long journey towards equality has been guided by countless small acts of persistence, and fueled by the stubborn willingness of quiet heroes to speak out for what’s right.  

Few were as small in stature as Edie Windsor – and few made as big a difference to America. 

I had the privilege to speak with Edie a few days ago, and to tell her one more time what a difference she made to this country we love.  She was engaged to her partner, Thea, for forty years.  After a wedding in Canada, they were married for less than two.  But federal law didn’t recognize a marriage like theirs as valid – which meant that they were denied certain federal rights and benefits that other married couples enjoyed.  And when Thea passed away, Edie spoke up – not for special treatment, but for equal treatment – so that other legally married same-sex couples could enjoy the same federal rights and benefits as anyone else. 

In my second inaugural address, I said that if we are truly created equal, then surely the love we commit to one another must be equal as well.  And because people like Edie stood up, my administration stopped defending the so-called Defense of Marriage Act in the courts.  The day that the Supreme Court issued its 2013 ruling in United States v. Windsor was a great day for Edie, and a great day for America – a victory for human decency, equality, freedom, and justice.  And I called Edie that day to congratulate her. 

Two years later, to the day, we took another step forward on our journey as the Supreme Court recognized a Constitutional guarantee of marriage equality.  It was a victory for families, and for the principle that all of us should be treated equally, regardless of who we are or who we love. 

I thought about Edie that day.  I thought about all the millions of quiet heroes across the decades whose countless small acts of courage slowly made an entire country realize that love is love – and who, in the process, made us all more free.  They deserve our gratitude.  And so does Edie.  

Michelle and I offer our condolences to her wife, Judith, and to all who loved and looked up to Edie Windsor.

Hat/tip to Talking Points Memo

QUEER QUOTE: Draconian 30-Year Sentence Overturned In HIV Criminalization Case

The case of Michael Johnson has been a cause celebre for years, an emblematic of a toxic stew of race, (homo)sexuality, homophobia, AIDSphobia and criminal justice that produces (and is produced by) HIV criminalization statutes. Johnson is a Black gay man who at age 23 was sentenced to 30 years in a Missouri court in summer 2015 because the former college wrestler did not disclose to his male partners that he  knew he was HIV-positive before they engaged in unprotected sexual activity (some of which was recorded on cellphones). This week comes the news that an appellate court has overturned that draconian sentence (conviction for 2nd degree murder would have received less jail time) and ordered a new trial.

The Washington Post reports:

During the trial, Johnson remained adamant that he informed his partners of the positive HIV test. He pleaded not guilty. The prosecution, however, impeached his testimony using three clips of cellphone conversations, recorded while Johnson was jailed. In one snippet of phone conversation, Johnson admitted he was just “pretty sure” he had informed his partners he was HIV positive. 

After slightly more than two hours of deliberation, a jury declared Johnson guilty of three crimes, all felonies under Missouri law: one count of recklessly infecting a sexual partner with HIV, one count of recklessly exposing a partner to HIV and three counts of attempting to recklessly infect a partner with HIV. In July 2015, Judge Jon A. Cunningham of the Circuit Court for St. Charles County sentenced Johnson to 30 years in prison. 

[...] 

Presiding Missouri Court of Appeals’ Eastern District Judge James M. Dowd wrote Tuesday that Johnson’s trial was rendered “fundamentally unfair” by the prosecutors; they tarried too long handing over the cellphone calls recorded while Johnson was in the county jail. “The State’s blatant discovery violation here is inexcusable,” the judges concluded.

Johnson's lawyer Lawrence Lustberg, the ACLU of Missouri and Lambda Legal celebrated this week's result. Lustberg's comment is today's Queer Quote:

"Statutes like the one used to prosecute Mr. Johnson are inherently problematic, as they promote stigma and animus towards people living with HIV in violation of their legal and constitutional rights."

The ACLU notes that the new trial is being ordered due to prosecutorial misconduct and not the underlying constitutional frailty of the criminal statute Johnson was charged and sentenced under.
MadProfessah will continue to follow this case closely and urge readers to contribute to organizations like Lambda Legal, ACLU and the Center for HIV Law and Policy.

Hat/tip to Washington Blade and Washington Post.

QUEER QUOTE: Executive Director Rachel Tiven Discusses Lambda Legal

Wow! I don't know how I missed this news when it came out in early May (must have been distracted by the end of the 2015-16 academic year, moving across the country and starting a new job with the federal government) but Lambda Legal has named a new executive director, and it is someone I know quite well, Rachel Tiven, the former executive director of Immigration Equality.

I found out about the change from this article by Kerry Eleveld at Daily Kos where she interviews Rachel.

Kerry Eleveld: What do you see as Lambda Legal's biggest growth opportunity over the next five years?Rachel Tiven: Visibility! We are the oldest and largest LGBT civil rights organization, but for too long we have been the movement’s quiet authority.  Our obligation is to become better known, and assert more influence on the public conversation.  Post marriage equality, the country is increasingly discussing what it means for LGBT people to be part of public life, to go to work, to get health care, to be safe in our homes. Lambda Legal’s perspective is critical to those conversations.
We need every LGBT and HIV-positive person in America to know that they can call Lambda when they have a legal problem.  Everyone who contacts us gets an accurate, respectful, free-of-charge answer from our amazing Help Desk—and those inquiries are how we stay two steps ahead of what our community needs.  The best advocacy is directly tied to service, which is why we are committed to expanding our Help Desk in the years ahead.

Definitely feel more confident about the future of the LGBTQ movement with people like Rachel Tiven at the helm of one of its key resources, Lambda Legal.

Lambda Legal's Jenny Pizer Explains Why Indiana's New "Religious Freedom" Law Is So Wrong

This week Indiana Governor Mike Pence (R) signed into law a "license to discriminate" bill (SB 101) that proponents claimed was just aimed at clarifying protections for religious freedoms in Indiana but which LGBT activists and others had warned could open up all sorts of disfavored minorities to discrimination under the guise of protecting religion. Of course, we at MadProfessah.com have been following the recent proliferation of deceptively anti-LGBT legislation in multiple states such as Texas, Arkansas and West Virginia.

Lambda Legal's Jenny Pizer explains why Indiana's "Religious Freedom Restoration Act (RFRA)" is so dangerous to the civil rights of LGBT people and others:

The truth is, Indiana’s RFRA is designed to allow and in some respects, invites people to disregard laws that should apply to everyone conducting a business — laws to prevent people from harming each other in the name of religion.At Lambda Legal, our top concern is religiously motivated discrimination against people already vulnerable to exclusion and mistreatment, especially the LGBT community. 

Gov. Pence, in his signing statement, said, "This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved." 

He’s wrong, or disingenuous, on both points. If this new law does not seek to facilitate discrimination, why did legislators pressing for its passage say it’s “needed” to allow businesses to turn away same-sex couples? And why did a majority of Indiana legislators then reject amendments offered to specify that these enhanced religious rights cannot be used to excuse discrimination?  

Further, about disputes between private parties, the law says explicitly, “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” This language was included to allow private parties to object to following a law that otherwise would apply to them, and to assert these expanded religious rights in a dispute with another private party. 

A stark problem for LGBT Hoosiers is that unlike in other states, Indiana law does not include sexual orientation and gender identity within the state’s nondiscrimination framework. 

When antigay lawmakers say laws like this are “needed,” and they point to cases from other states where we successfully resisted use of religion to defend discrimination, they don’t acknowledge that a statewide nondiscrimination law was on the books in those places. Currently, less than half the states have such laws.

When asked about these points on national television, Gov. Pence (who previously had been mentioned as another potential Republican candidate for President in 2016) did not acquit himself well. He said that he wanted to work with the Indiana legislature to clarify that SB 101 does not include a license to discriminate but that he did not intend to include sexual orientation or gender identity in statewide nondiscrimination legislation.

Indiana's largest LGBT group, Freedom Indiana immediately took the Governor to task on the lack of a real commitment to protect LGBT people from discrimination in Indiana:

Governor Pence didn't listen last week when he signed this discriminatory law into effect, and he's still not listening to the growing chorus of criticism locally and nationally. While we appreciate his recognition that he's placed our state in peril, he's obviously trying to have it both ways. You can't 'clarify' discrimination. Indiana now has billions of dollars and thousands of jobs on the line, all because the Governor wouldn't stop this dangerous bill. He has a second chance to save our reputation for Hoosier hospitality, but he has to stand up and protect LGBT Hoosiers. Discrimination is not a core Hoosier value, and we can't afford to let our state continue to suffer. 

Thousands of people attended a march protesting SB 101 in Indianapolis yesterday and major corporations are announcing that they are scuttling plans to expand or do more business in Indiana as a result of the controversy.

Already the reaction in Indiana seems to be dissuading other red states like Montana and Georgia from moving so quickly to appear to trample the civil rights of American citizens in the quest to reify religious beliefs.

There Are Only 5 States Whose Marriage Equality Bans Are Not (Currently) Being Challenged In Court

This is an interesting factoid. There are currently only 5 states where bans on same-sex marriage are NOT currently being challenged in court (North dakota, South Dakota, Alaska, Georgia, and Montana). There are 17 states that have marriage equality right now. There are 30 states with more than 65 lawsuits (44 of which are federal cases) pending against their bans on same-sex marriage, according to Lambda Legal, reports the Washington Post:

Heterosexual-only marriage is safe in just five states, for now at least.   

Gay marriage is now legal in 17 states and bans are being challenged in 30, according to the latest count from Lambda Legal, a pro-gay marriage organization. (Hawaii and Illinois allow gay marriage, but legal technicalities  to aspects of their laws are still being ironed out in the courts.) The five states with bans on gay marriage that stand unchallenged are: Alaska, Georgia, Montana, North Dakota  and South Dakota.  

The five unchallenged state gay marriage bans may not stand for long. Already, a South Dakota couple has plans to challenge their state ban. And  the Supreme Court could soon weigh in.

It's unlikely the Supreme Court will really weigh in on the marriage equality question before the end of the 2014-15 term, and that's only if one of the appellate cases (the first of which was heard on Thursday in Denver before the 10th U.S. Circuit) rockets to their docket before the end of this year, which certainly is possible.

I think the 5 states that currently do not have marriage equality lawsuits says more about the lack of
organized LGBT infrastructure in those states than whether there are people who would benefit if those bans were also removed.

GRAPHIC: LGBT Workplace Equality Across The United States

The map of where state law protects against discrimination based on sexual orientation or gender identity is shown in the above graphic provided by Lambda Legal.

All government employees are protected by the U.S. Constitution against irrational discrimination based on sexual orientation or gender identity. In addition, some measure of protection already exists under Title VII based on gender, which has been held to include gender identity and expression. The U.s. Equal Employment Opportunity Commission (EEOC) and several courts have interpreted Title VII to protect transgender employees, and the EEOC has interpreted Title VII to cover sexual orientation discrimination. The Supreme Court has held that the EEOC's interpretation of Title VII are entitled to "great deference."

Maryland will be joining the states that have gender identity discrimination in a few days when Governor Martin O'Malley signs SB 212 into law. The measure passed the Maryland legislature last week and waits the Governor's signature.

Hat/tip to Joe.My.God

Lambda Legal Files Marriage Equality Lawsuit In Arizona!

Good news out of Arizona regarding LGBT equality! Lambda Legal has filed a lawsuit seeking to gain the right to marriage for same-sex couples in Arizona.

In the lawsuit, Lambda Legal, joined by pro bono co-counsel from Perkins Coie LLP, argues that the Arizona constitutional amendment and state statutes barring same-sex couples from marriage violates the Equal Protection Clause and the Due Process Clause of the U.S. Constitution.  

The lead plaintiffs, Nelda Majors, 75, and Karen Bailey, 74, of Scottsdale, have been together for more than 55 years, and together have raised two children, Karen’s great grand-nieces Marissa and Sharla, as their own daughters since the girls came into their home as toddlers. Marissa is now 15 and Sharla 21. 

“Karen and I have been together since 1957,” Majors said.  “We’re a committed, loving family, have raised two amazing girls together, have seen each other through thick and thin, in sickness and in health. After five decades together, we want to celebrate and affirm our deep love for each other as other couples do, before our friends and family, through marriage. We’re also getting up there in years. I want to know that, should anything happen to me, there would be no question about Karen being allowed to be with me at the hospital, and vice versa. If we were married, there would be no question and we both would feel more secure.” 

“Arizona’s ban on marriage for same-sex couples serves no legitimate state interest, brands these loving couples and their children as second-class citizens, and encourages private bias and discrimination,” Pizer said. “And because the State does not even offer a lesser status such as civil union or domestic partnership, these loving couples live every day with the uncertainty that their families and relationships lack even basic protections.”

The name of the lawsuit is Majors v. Horne. As I have said, repeatedly, the fact that in the 9th U.S. Circuit (Washington, California, Oregon, Arizona, Idaho, Nevada and Montana) laws in these states that classify based on sexual orientation must receive heightened scrutiny that they are not violating the equal protection rights of LGBT people makes it very likely that bans on same-sex marriage in these states are toast. The deadline to appeal the decision that declared sexual orientation subject to heightened scrutiny passed last Friday, and this lawsuit I'm sure is a consequence of that decision.

QUEER QUOTE: NV AG Rethinking Defense of State Marriage Ban

The Attorney General of Nevada raised some eyebrows last week when she filed a brief defending Nevada's marriage statutes that appeared to implicitly compare same-sex marriage with polygamous and incestuous ones. The case in question is Sevcik v. Sandoval and is being managed by Lambda Legal and the Attorney General is a Democrat named Catherine Cortez Masto who was re-elected in 2010 and is term limited from running again in 2014.

Today comes word that in light of the recent decision by the 9th Circuit that laws which discriminate on the basis of sexual orientation require heightened scrutiny, the AG is changing her tune. She released a statement which is today's Queer Quote:

“A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit. 

This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.

It would be interesting if the AG of Nevada stopped defending its discriminatory marriage statute(s) in light of  the decision in GlaxoSmithKline, like the Democratic Attorney General of Virginia, Mark Herring did last week. He made his decision on the strength of the Supreme Court's language in United States v. Windsor, which makes it pretty clear that laws which disfavor same-sex couples do not serve a legitimate governmental interest and are almost certainly unconstitutional. 

If sexual orientation does receive heightened scrutiny nationwide it is hard to imagine that state constitutional bans on same-sex marriage survive competent judicial review. Currently, that is the standard of review in the Ninth Circuit, where Nevada (and Oregon) reside, so we may have more states joining the marriage equality caucus sooner rather than later.

Hat/tip to LGBT Think Progess

New Jersey Supreme Court Agrees To Decide Marriage Equality Case

The New Jersey Supreme Court agreed to expedite an appeal of a lower court's ruling that could lead to same-sex marriages beginning in less than two weeks. The state's highest court set a briefing schedule that will not only allow it to decide the issue of whether a stay should be issued on whether the lower court ruling should go into effect on October 21 but also allow the court to decide the impact of the U.S. Supreme Court's U.S. v. Windsor in the context of state jurisprudence. The Court has agreed to hear oral arguments in the underlying question January 6-7, 2014.

New Jersey is one of a handful of states (Colorado, Hawaii, Illinois, Nevada and Oregon) which have purportedly granted equal treatment under the law to same-sex couples using a legal entity distinct from marriage. With the federal government now recognizing legal state same-sex marriages for various federal purposes like social security, income taxes and immigration you have the situation where states that intended to grant equal rights and responsibilities to same-sex couples as legally married opposite-sex couples legally can not do so unless they grant those couples access to federal benefits, which can only happen through a state-issued marriage. In fact, you have an even odder situation where a same-sex couple could go to a state and get married and go back to their home state (which does not recognize their marriage) and that couple would have more rights (due to federal law and public policy) than a same-sex couple in a civil union or registered domestic partnership.

The situation in New Jersey is actually pretty clear cut because the Supreme Court issued a ruling called Lewis v. Harris that ordered the state to treat same-sex couples and opposite-sex couples equally under state law, which led to the enactment of a civil union law. This context led a lower court judge to rule September 26th that marriages in New Jersey needed to begin October 21 and which is being appealed by Governor Chris Christie despite polls showing nearly two-thirds of the New Jersey public wants the state to stop preventing marriage equality from coming to the Garden State.

I expect the Court will agree to issue a stay on the lower court ruling until it makes a final determination in Garden State Equality v. Dow. Otherwise the Court would be allowing marriages to start occurring only to have them stop if they decide to overturn the lower court.

There's also other issues complicating New Jersey's path to marriage equality in 2013: there is a January 2013 deadline to override Christie's earlier veto of a marriage equality in the state Legislature, Christie is up for re-election this November and there are currently two vacancies on the 7-member state Supreme Court being filled temporarily by appellate court judges. Despite these complications, I expect that New Jersey will have marriage equality by this time next year.

New Jersey United For Marriage Launches

A group of organizations in New Jersey have joined together to form a coalition called New Jersey United for Marriage which is dedicated to winning the freedom to marry in New Jersey by January 2014. They are reading from a playbook that has been run in many states, like Hawaii, New York, Washington, Maine, Rhode Island and Minnesota.

“Today’s announcement is a game-changer.  Over the past decade, Garden State Equality has moved public opinion from minority to majority support for marriage,” said Troy Stevenson, Executive Director of Garden State Equality.  “With over 60 percent of New Jerseyans supporting marriage equality, we are in the last leg of a marathon race and are inviting everyone to run the last mile with us.” 

[...] 

Speaking at the rally will be leaders of New Jersey United, several families who are directly impacted by the state’s  civil union law, clergy members and local small business owners.  Modeled after successful efforts in New York, Rhode Island, Maryland, and Maine, the campaign will broaden the existing coalition of supporters to engage new groups, including Main Street businesses, large corporate employers, industry organizations and Republicans. 

[...] 

The Marriage Equality and Religious Exemptions Act passed in the State Senate and Assembly in February 2012, but was vetoed shortly thereafter. NJ United for Marriage seeks an override of the veto by early January 2014.

The coalition launched on July 24 with partners Garden State Equality, American Civil Liberties Union of NJ, American Unity Fund, Freedom to Marry, Gill Action Fund, Human Rights Campaign, and Lambda Legal.

New Jersey goes to the polls in November 2013 to decide the fate of Governor Chris Christie and elect state legislators. Following that election

Lambda Legal Explains Gaytterdämmerung Cases

Last week I showed you the infographic explanation of the upcoming Supreme Court case Hollingsworth v. Perry provided by American Foundation for Equal Rights.

This week, the venerable Lambda Legal provides their explanation of both Gaytterdämmerung cases (Hollingsworth v Perry and United States v. Windsor) in graphical form as well.

Basically there are 6 likely results in the Proposition 8 case (Hollingsworth), 5 of which will result in same-sex couples being able to marry again soon afterwards in California.

In the DOMA case (Windsor), there are really 3 possible results and even with a "win" the impact on all legally married same-sex couples in the country will take awhile to resolve. Here's the text of the Windsor possibilities:

3 Most Likely Outcomes

Win Court strikes down section 3 of DOMA (affirms the Second Circuit decision that section 3 of DOMA violates the constitution’s guarantee of equality)	No Standing To be in Supreme Court	Lose SCOTUS Upholds DOMA (Reverses the Second Circuit decision)
Federal government will have to treat marriages of same-sex couples the same way it treats the marriages of different-sex couples for all federal statutes and programs. Would NOT resolve: Whether states must allow same-sex couples to marry. Whether states must respect marriages same-sex couples legally entered into in other states. Married same-sex couples who live in states that do not recognize their marriage may experience a period of uncertainty as to which federal benefits they can receive.	The Court may find that the Department of Justice does not have the right to seek Court review and that the Bipartisan Legal Advisory Committee of the House of Representatives (BLAG) does not have standing to defend DOMA. The Appeals Court decision would be vacated by the Court and it would be the district court decision finding DOMA Section 3 unconstitutional that would stand. Further efforts might be necessary to defeat DOMA nationwide.	Same-sex couples will continue to be denied rights, responsibilities & protections under more than 1,000 federal laws. Pushing forward for Respect for Marriage Act in Congress.

The Supreme Court will issue its ruling sometime in June, on a Monday or Thursday. Most people (yours truly included) expect the cases to be released around 10am on Thursday June 27th.

Hat/tip to Joe.My.God

Today is GIVE OUT DAY! Support LGBT Rights!

Today is Give Out Day 2013. Here is the info about what it is:

On May 9th, 2013 we invite you to be part of history and participate in the 1st national Give OUT Day for the Lesbian, Gay, Bisexual, Transgender & Queer community.  

So, what is the Give OUT Day? 
Give OUT Day is a new national initiative that aims to mobilize thousands of individual donors on a single day across the country to give in support of the LGBTQ nonprofit community. Give OUT Day will be breaking new ground as it adapts a fundraising model that has proven successful for local multi-issue fundraising to a national single-issue focus.

Giving Day campaigns across the country have been successful at raising millions of dollars for local nonprofits. What’s more, this model has proven to bring in NEW donors and NEW dollars, complimenting and amplifying nonprofits’ existing fundraising efforts. More dollars and new donors is what our community needs today.
Giving Day campaigns across the country have been successful at raising millions of dollars for local nonprofits. What’s more, this model has proven to bring in NEW donors and NEW dollars, complimenting and amplifying nonprofits’ existing fundraising efforts. More dollars and new donors is what our community needs today.

Organizations which I give money to (and you should, too) are: National Black Justice Coalition, Freedom To Marry, Immigration Equality, Gay and Lesbian Victory Fund, Equality California, Lambda Legal, National Gay and Lesbian Task Force, Gay Lesbian Advocates and Defenders, American Foundation for Equal Rights, Center for Health Justice, Jordan/Rustin Coalition, The Williams Institute at UCLA and the L.A. Gay and Lesbian Center!

Celebrity Friday: Tara Borrelli Named CA Top 100 Lawyer

Tara Borelli is an acquaintance of mine who works in the Western Regional Office of Lambda Legal in Los Angeles on impact litigation impacting the LGBT and HIV/AIDS communities. It is with great pleasure I get to declare that she is today's subject of Celebrity Friday thanks to the fact that the Daily Journal (which is basically the daily newspaper for lawyers in the state of California) has named Tara one of the Top 100 lawyers in the state of California!

The Journal recognized Borelli for her work in four of the cases in which she is leading litigation:

• Golinski v. U.S. Office of Personnel Management, in which Lambda Legal won a district court ruling that a key portion of the federal so-called Defense of Marriage Act (DOMA) is unconstitutional.
• Diaz v. Brewer, in which Lambda Legal represents seven lesbian and gay Arizona state employees in federal court and has blocked the state's discriminatory attempt to eliminate the health care benefits that they rely on to safeguard their families' health.
• Sevcik v. Sandoval, Lambda Legal's federal case challenging Nevada's law prohibiting same-sex couples from marrying.
• Esquivel v. Oregon, in which Lambda Legal represents a state employee denied medically necessary surgery because he is transgender.

These are all very important cases, with Diaz v. Brewer on the docket before the United States Supreme Court as it considers whether to grant certiorari in Governor Jan Brewer's non-sensical appeal of an injunction against the state of Arizona from dropping domestic partner benefits for state employees. Golinksi is another one of the many recent cases which have been used to demonstrate the legal abomination which is the so-called Defense of Marriage Act (DOMA), although it is unlikely to make it to the high court at the same time as some other cases which are further along, but the Department of Justice has asked the Supreme Court to consider it along with the myriad other courses in which DOMA has been struck down at either the federal district or appellate court level.

Gay Cases Piling Up Before US Supreme Court

The 2012-2013 term of the United States Supreme Court is shaping up to be the gayest in recent history. There are already numerous cases pending a decision on the Court to take them: the two consolidated Defense of Marriage Act cases on appeal from the 1st Circuit Court of Appeals, Gill v. U.S. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services and the  Proposition 8 case Perry v. Brown on appeal from the 9th Circuit Court of Appeals. (Technically Charles Cooper hasn't filed his appeal to the US Supreme Court yet, but there's no doubt he will, or else marriage equality will go back into effect in California, something the heterosexaul supremacists Cooper represents are trying to delay as long as possible, and are willing to use the glacial pace of the federal judiciary to assist them in this goal.)

Overshadowed by the July 4th holiday last week, the news that the Department of Justice has petitioned the high court to accept the DOMA cases from the 1st circuit as well as the Golinski v. U.S. Office of Personnel Management case from the 9th Circuit. The Golinski case is yet another case where a (conservative) federal judge has ruled that DOMA is unconstitutional, this time because an employee of the 9th Circuit is being denied the right to put her legally married wife on her health care plan. What's surprising about the DOJ petition is that the 9th U.S. Circuit Court of Appeals has scheduled oral arguments in Golinski for September, so it is quite an extraordinary step to ask the high court to take the case before a federal appellate court has considered and released a decision.

Lambda Legal released a statement

This development highlights the desire by all, the government included, to resolve this issue quickly. It is clear to us, to the Solicitor General and to the Department of Justice that DOMA’s days are numbered. The last four courts to consider the question have all found Section 3 of DOMA—which prohibits the federal government from recognizing same-sex couples’ valid marriages—to be unconstitutional. The Justice Department’s action may speed the day when the Supreme Court reaches the issue. Lambda Legal and Morrison & Foerster stand ready to argue for fair treatment for Karen Golinski and her spouse, Amy Cunninghis, in any court, at any time—and we welcome this opportunity to finally put DOMA out of its, and our, misery. 

There are loving, married same-sex couples, and grieving lesbian and gay widows and widowers around the country who are being hurt by the government’s discriminatory actions—that’s why there are DOMA cases pending in several jurisdictions, brought on behalf of many plaintiffs. Every one of their stories demonstrates that DOMA is an unfair and discriminatory law that violates the Constitution. While it is up to the Supreme Court to decide whether or not to hear Golinski now, we are confident that DOMA will be found unconstitutional—and the sooner, the better.

But, wait, there's more! Chris Geidner is reporting that Arizona governor Jan Brewer has decided to appeal to the United States Supreme Court her loss in Brewer v. Diaz, a case in which the 9th Circuit Court of Appeals ruled that an Arizona law signed by Bewer passed by the Republican legislature to remove same-sex domestic partner benefits from state employees violates the Equal Protection Clause of the federal constitution. The 9th Circuit had already announced in April 2, 2012 that it was refusing to reconsider their September 2011 ruling preventing the discriminatory law from going into effect, thus starting the 90-day clock for Arizona to appeal to the nation's highest court.

Thus the first monday in October, October 1st, will become an incredibly important day in the history of gay rights (and probably a very bad day for heterosexual supremacists). It is unlikely that the Court will decide to take all these cases, and whichever one it does not then the decision at the lower level will become the final ruling, which in every case here would be a win for the forces for LGBT equality.

Illinois AG Supports Marriage Equality Lawsuit

Illinois Attorney General Lisa Madigan (D)

Recently, Lambda Legal and ACLU each filed a lawsuit in Illinois challenging the denial of marriage equality to 25 same-sex couples. Even though the state has a civil unions law which provides all the legal rights and benefits that a state can bestow without using the word "marriage," the lawsuit (Darby v. Orr and Lazaro v. Orr) argues that the civil union law discriminates on the basis of sex and sexual orientation since opposite sex couples have access to civil unions  and marriage, but same-sex couples only have access to civil unions.

Now comes word that the Attorney General of Illinios Democrat Lisa Madigan supports marriage equality and is refusing to defend the civil union law in court.

In a pair of June 1 filings in Darby v. Orr and Lazaro v. Orr, which were reviewed by Metro Weekly, the attorney general's office has requested to intervene in the cases, which it says is appropriate because state law permits a court to allow the state to intervene when the validity of a state law is at issue. The Attorney General's Office is not requesting to intervene to defend the laws, however, which is the usual reason for such intervention.

In the requests, Madigan writes, "Petitioner respectfully requests the right to intervene in this case to present the Court with arguments that explain why the challenged statutory provisions do not satisfy the guarantee of equality under the Illinois Constitution."

Additionally, Democratic Governor Pat Quinn, who signed the civil unions bill into law on February 1, 2011 now says that he supports marriage equality, making it likely that he will not oppose the lawsuit as well.

Lambda Files NV Marriage Lawsuit in Federal Court

Well, well, well! After complaining for years about groups going off filing ill-timed and ill-considered lawsuits to attempt to legalize marriage equality, Lambda Legal has apparently decided to join the party, and filed a federal lawsuit in Nevada on April 10, 2012 to attempt to win marriage equality for its Nevada-based clients.

Professor Arthur Leonard analyzed the lawsuit at his blog Leonard Link:

Lambda Legal has filed a lawsuit in the U.S. District Court in Nevada, contending that the state's failure to open up marriage to same-sex couples violates the Equal Protection Clause of the 14th Amendment.  The lawsuit, Sevcik v. Sandoval, Case 2:12-cv-00578, was filed on behalf of eight same-sex couples who reside in Nevada and whose attempts to marry in the state or to get their out-of-state same-sex marriages recognized in the state have been unsuccessful.  The defendants are Governor Brian Sandoval, a Republican, and three county clerks who have denied marriage licenses to same-sex couples in recent days.  The defendants are sued only in their official capacities.

Nevada has a constitutional amendment very similar to California Proposition 8, stating that only different-sex marriages are valid or recognized.  The state also has a so-called "mini-DOMA," a statutory provision limiting marriage to different-sex couples.  However, Nevada also has a domestic partnership law, under which both same-sex and different-sex couples can enter into registered partnerships that provide almost all of the state law rights of marriage.

Having adopted a domestic partnership law, Lambda asserts that Nevada cannot credibly argue that it has a policy against recognizing a legal status for same-sex partners, or that it has a policy against LGBT families as such.  Neither can it argue that it is necessary to exclude same-sex couples from marriage in order to "protect children," inasmuch as the domestic partnership law and Nevada family law accord full parental rights and recognition in this context.  Indeed, with a broad domestic partnership law in place, the main function of the constitutional amendment and mini-DOMA are to "send a message."  These measures become to a large extent "expressive" enactments, and the question is: What is the message that they send? 

The answer is clear to LGBT people in Nevada.  The message is that their intimate family relationships are unequal and inferior to the relationships of non-LGBT people.  Is it constitutional for a state to embody such a message in a constitutional and statutory structure that creates separate and, in absolute terms, unequal statuses for same-sex and different-sex couples? 

The case is brought by Lambda based solely on a 14th Amendment Equal Protection claim.  Avoiding the necessity to argue that access to marriage for same-sex couples is a fundamental right protected as a liberty interest under the Due Process Clause, the complaint focuses solely on equality theory, arguing that in light of the domestic partnership law, Nevada has no legitimate justification for excluding same-sex couples from marriage. 

I am sure we will be following developments in Sevcik v. Sandoval closely here at MadProfessah.com!

WATCH: Sh*t Homophobic People Say

Celebrity Friday: Jenny Pizer Leaves Lambda Legal For UCLA Law

Jennifer Pizer

The longtime Marriage Director of the Lambda Legal Defense and Education Fund, Jennifer C. Pizer, has decided to jump ship to the Williams Institute on Sexual Orientation Law and Public Policy at UCLA Law School, where she will become Legal Director and The Arnold D. Kassoy Senior Scholar of Law.

In this newly endowed position at the Williams Institute, Pizer will lead the Institute's projects related to legal research and analysis on LGBT issues.  Her work will include conducting legal research, writing articles and commentary, drafting amicus briefs for key court cases, drafting and providing testimony for legislation, organizing and conducting education programs for judges and lawyers, and teaching courses at UCLA. 

Pizer is a graduate of Harvard College and New York University School of Law.  After law school she served as a judicial clerk to the Hon. Ann Aldrich of the U.S. District Court for the Northern District of Ohio, was Legal Director of the National Abortion Rights Action League, and practiced intellectual property and business torts litigation with Townsend and Townsend and Crew LLP in San Francisco.  She comes to the Williams Institute from a very successful career at Lambda Legal Defense and Education Fund, where she was Senior Counsel and the National Marriage Project Director.    

As an Adjunct Professor, Pizer has taught courses on sexual orientation law at USC Law School, Loyola Law School, and Whittier Law School.  Her publications include, “The Effects of Unequal Access to Health Insurance for Same-sex Couples in California” published in Health Affairs 29, No. 8 (2010), with Ninez Ponce, Susan Cochran, and Vickie Mays; “Facial Discrimination: Darlene Jespersen’s Fight Against the Barbi-fication of Bartenders,” published in Duke Journal of Gender Law & Policy, Vol. 14, Issue 1 (2007); “Arresting ‘The Plague of Violence’: California’s Unruh Act Requires School Officials to Act Against Anti-Gay Peer Abuse,” published in 12Stanford Law & Policy Review 63 (2001), with Doreena Wong.   She has commented extensively on LGBT legal developments for both leading national media and the legal press.

Congratulations, Jenny!

State of the LGBT Movement's Advocacy Organizations

Chris Geidner at Metro Weekly has done the LGBT community a great service by writing the article "State of Play," continuing the great tradition of the Washington Blade in listing and summarizing the staff sizes and annual budgets of the largest or most visible LGBT organizations in the country.

Unfortunately, he only focused only on the organizations which are involved in the fight over "Don't Ask, Don't Tell," not every LGBT organization of national significance like the Washington Blade used to.

The main things to note are the relative sizes of Human Rights Campaign ($37 million, 142 employees), Lambda Legal ($15.6 million, 85 employees) and the National Gay and Lesbian Task Force ($8.6 million, 47 employees) which are probably the three largest LGBT advocacy organizations in the country, with the Gay and Lesbian Alliance Against Defamation either in 3rd or 4th place.

Hat/tip to Joe.My.God