Delhi High Court Curtails Sodomy Law

"Times are changing for the better"

02 July 2009

Today the High Court of Delhi at New Delhi sharply limited Section 377 of the Indian Penal Code.  Section 377, which prohibits "carnal intercourse" and has come to be known as the "unnatural offences" section, was facially neutral but in practice targeted LGBT persons.  The Court held it unconstitutional insofar as it criminalized consensual sex acts between adults in private.  In closing, the Court wrote:

     "If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that of
'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising a role in society for
everyone.  Those perceived by the majority as “deviants' or
'different' are not on that score excluded or ostracised.
     "Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and non-
discrimination. ...   In our view, Indian
Constitutional law does not permit the statutory criminal law
to be held captive by the popular misconceptions of who the
LGBTs are.  It cannot be forgotten that discrimination is anti-
thesis of equality and that it is the recognition of equality
which will foster the dignity of every individual."

Posted by Cruz at 7:06 AM | Link | 0 comments

Categories: sodomy India human rights respect for private life sexual orientation gender identity LGBTI rights

Supreme Court Repudiates Strip Search of 13-Year-Old, Denies Redress

"Will you strip for me?"

25 June 2009

In Safford Unified School District No. 1 v. Redding, the U.S. Supreme Court today held, in an opinion by the imminently retiring Justice David Souter, that school officials violated the Fourth Amendment's ban on unreasonable searches and seizures by strip searching 13 year old Savanna Redding to look for common pain relievers.  Once again proving his willingness to endorse outrageous legal conclusions, Clarence Thomas was the only Justice to dissent from this holding.  Regrettably, the majority further concluded that the law was not sufficiently clear to justify allowing Savanna to seek money damages from the school officials.  Cheers to Justice Stevens and Justice Ginsburg for appreciating the evidentness of the conclusion that “a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.”  The Supreme Court remanded the case for the lower courts to consider whether Redding could seek damages from the school district itself, but recovering from a local governmental unit like the school district is something the Court's precedents have made increasingly difficult.

Posted by Cruz at 8:41 AM | Link | 0 comments

Categories: Fourth Amendment strip search U.S. Supreme Court

Prop 8 Ruling Tuesday, May 26

"The waiting is the hardest part"

22 May 2009

The California Supreme Court has given notice that it will hand down its decision in the challenge to Proposition 8 on Tuesday, May 26.  Try not to let this preoccupy you during the Memorial Day weekend.

Posted by Cruz at 10:26 AM | Link | 0 comments

Categories: Prop 8 California Supreme Court

Prop 8 Ruling Tuesday, May 26

"The waiting is the hardest part"

The California Supreme Court has given notice that it will hand down its decision in the challenge to Proposition 8 on Tuesday, May 26.  Try not to let this preoccupy you during the Memorial Day weekend.

Posted by Cruz at 10:25 AM | Link | 0 comments

Categories: Prop 8 California Supreme Court

NY Assembly Votes for Marriage Equality

"It's up to you"

13 May 2009

As reported in the New York Times, the New York state Assembly has voted 89-52 in favor of a bill opening civil marriage to same-sex couples. Proponents and opponents of the measure, which Governor Patterson supports, are now concentrating their efforts on the state Senate, where the defeat or passage of the bill is uncertain.  Will New York become the sixth state in the U.S. to afford same-sex couples marriage equality?

Posted by Cruz at 8:32 AM | Link | 0 comments

Categories: New York marriage

Marriage Equality In Maine.

"There's no stopping us now/Our love is here to stay"

06 May 2009

The Associated Press has reported that Maine has just become the fifth state to allow same-sex couples to marry.  Like Vermont, they did so through a vote of their state legislature.  The Northeast is once again proving itself a leader on liberty and equality, and it's easy to understand why so many people feel a sense of momentum behind the drive for marriage equality.

Posted by Cruz at 10:17 AM | Link | 0 comments

Categories: Maine marriage

Maine joins move towards marriage equality

"I must be dreaming"

05 May 2009

The Associated Press has reported that the Maine legislature has voted in favor of a bill to allow same-sex couples to marry.  If they vote "yes" a second time and Maine's governor, who has not decided whether to sign it, approves it, Maine would become the first state allowing same-sex couples to marry and the fourth in New England!

Posted by Cruz at 11:37 AM | Link | 0 comments

Categories: Maine marriage

New Hampshire Takes Step Toward Marriage Equality

"They're gonna lead on"

29 April 2009

The New Hampshire state Senate has joined the state House in passing a bill opening marriage to same-sex couples (story here).  The bills would now have to be reconciled and the Governor have to sign it for the law to change.  If New Hampshire makes the shift from its current parallel civil unions/civil marriage regime to one of equal marriage rights for same-sex couples, it would become the fourth state in New England with such rights (Massachusetts, Connecticut, and Vermont being the other three).

[edited to remove broken link]

Posted by Cruz at 1:56 PM | Link | 0 comments

Categories: marriage New Hampshire

Marriage Recognition in District of Columbia

"Oh love - like liquid falling/Falling in cascades"

07 April 2009

Not only did the Vermont legislature today open civil marriage to same-sex couples, but the D.C. Council unanimously voted (initially, with a final vote on the legislation to follow) to recognize and honor marriages of same-sex couples lawfully performed in other jurisdictions.  What a week for marriage equality!

Posted by Cruz at 12:47 PM | Link | 0 comments

Categories: marriage recognition marriage District of Columbia

Marriage Equality in Vermont

"And the walls come tumbling down"

As reported by the Burlington Free Press, the Vermont legislature has just overriden the governor's veto of a bill opening civil marriage to couples regardless of sex/gender.  With Iowa last Friday, that makes two states to honor marriage equality within five days, doubling the number of states that allow same-sex couples to marry, with Massachusetts and Connecticut the other two, since Prop 8 is in effect in California precluding the state from issuing new marriage licenses to same-sex couples.

Vermont also becomes the first state to do so without court command (since the Baker v. State decision in 1999 left Vermont the initial choice of opening up marriage or creating another institution to provide the rights, benefits, and obligations of marriage, which the legislature did by creating "civil unions").  Add to that the fact that Vermont was the first state to abolish slavery and it really appears to be a path-breaking state.

Posted by Cruz at 8:19 AM | Link | 0 comments

Categories: marriage Vermont

Marriage Equality Comes to Iowa

"What a Difference a Day Makes"

03 April 2009

Occasionally citing the May 2008 California Supreme Court decision in In re Marriage Cases, the Iowa Supreme Court today unanimously held that the state constitution's guarantee of equal protection requires the state to allow same-sex couples to marry civilly.  Adopting a practical analysis, the Court determined that the marriage exclusion discriminated on the basis of sexual orientation.  Following the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health (after independent analysis), the Iowa Supreme Court held that discrimination against gay men and lesbians must be tested by a less deferential form of judicial review than applies in run of the mill cases of legislative distinctions.  Because the Court concluded that the marriage ban could not pass intermediate scrutiny, the Court didn't need to decide whether sexual orientation discrimination should receive the least deferential form of review, strict scrutiny.

The Court's decision goes into effect in 21 days [**unless the losers file a petition for rehearing, which could somewhat delay things**-edit].  It's opinion is here, though this morning the Court's web site is extremely busy.

Posted by Cruz at 7:29 AM | Link | 0 comments

Categories: equal protection marriage Iowa Supreme Court sexual orientation

Sweden to Allow Same-Sex Couples to Marry

"Somebody get some flowers! Somebody get a ring!"

01 April 2009

I'm trusting this isn't an April Fool's Day prank -- do they even observe this day in Scandinavia? -- but the national legislature in Sweden approved a law today that will open marriage to same-sex couples starting May 1.  You can check out the Wikipedia entry that's already up here.  Northern Europe now boasts three of the seven countries that don't discriminate on the basis of sex regarding whom their laws allow to get married.

Posted by Cruz at 8:17 AM | Link | 0 comments

Categories: Sweden marriage

Japan to Recognize Foreign Marriages of Same-Sex Couples

" A legal union, you're rounding third base"

27 March 2009

As reported by the AFP, Japan's justice ministry has issued a directive that will allow Japanese citizens to marry partners of the same-sex in foreign countries that allow this.  So, while Japan is no Netherlands, Belgium, Spain, Canada, South Africa, Norway, Massachusetts, or Connecticut (all of which allow same-sex couples to marry, but it's now ahead of the vast majority of U.S. states on this issue.

Posted by Cruz at 9:24 PM | Link | 0 comments

Categories: marriage recognition Japan

Pro-Marriage Equality Initiative Filed

"Ooo and it's alright and it's comin' 'long"

20 March 2009

Yesterday, March 19, 2009, the California Secretary of State provided an official summary for a proposed initiative (the "California Marriage Equality Act") to re-amend the state constitution to restore same-sex couples' equal right to marry.  Proponents will now have until August 19 to gather the not quite 700,000 signature required to qualify it to go before the voters.  Besides repealing the section of the California Constitution added by Proposition 8, the measure specifies -- apparently to forestall some of the chief fear tactics used in the Yes on 8 campaign -- that it shall not be interpreted to change school curricula or force clergy to perform services or duties "incongruent with their faith."

Posted by Cruz at 10:43 PM | Link | 1 comment

Categories: California Constitution California Marriage Equality Act Prop 8 marriage

"A Horse with No Name"?

Chief Justice George and Marriage Without the Name

06 March 2009

During oral argument yesterday in the California Supreme Court, Chief Justice Ronald George more than once questioned attorneys for those challenging Proposition 8 about the scope of the measure.  I think his questions may not have fully appreciated the structure of the challengers’ “revision” argument (or may just have been designed to elicit a public articulation by counsel).  But it seemed that the Chief Justice and the attorneys may have been slightly talking past one another.

In his first questions and comments to Shannon Minter, Legal Director of the National Center for Lesbian Rights arguing on behalf of challengers to Prop 8, the Chief Justice suggested that the petitioners assumed that Prop 8 overturned not only same-sex couples right to marry but also the California Supreme Court’s holding in the marriage cases last year that sexual orientation was a suspect classification and laws discriminating against gay and lesbian people subject to non-deferential “strict scrutiny” review by courts.  “To the extent Proposition 8 is to be construed narrowly,” not affecting the other holdings the Court rendered, Chief Justice George suggested, “your argument that this is a wholesale revision as opposed to an amendment is weakened.”

Mr. Minter quickly clarified that he did not assume that Prop 8 touched those other holdings of the marriage cases.  But that position does not weaken the argument that Prop 8 should be judged a “revision” to the state constitution.  The Chief Justice’s  phrasing “wholesale revision” is, as he is well aware, not the terminology used by the state constitution, which simply distinguishes between a power to revise and a power to amend the constitution (without defining either or the difference).  “Wholesale revision” sounds like what the Court in past decisions has called a “quantitative revision” to the constitution, one which ranges so broadly and changes or adds so much to the document that it cannot be judged a mere, minor perfecting “amendment.”  Given the number of clauses in the state constitution that do guarantee equality in various ways, there is a nonfrivolous argument that Prop 8 is a quantitative restriction.  But it’s not the strongest basis for the challenge to the measure, and Minter appropriately noted that the parties were not making that argument when Justice Kennard asked about this a little further into the argument.

Rather, petitioners are arguing that Proposition 8 amounts to what the Court has termed a “qualitative amendment,” one that although not so voluminous in its changes nonetheless has a profound effect on existing constitutional arrangements.  It is the denial of equal access to a fundamental right based on a bare majority vote, which is all that Prop 8 needed to pass, that cuts the judiciary out of its longstanding role of protecting fundamental rights and particularly vulnerable minorities, diminishes the foundational guarantees of equality in the state constitution, correspondingly deprives California’s democracy of the assurance of equal citizenship and equal protection that is necessary to the consent of the governed and democratic legitimacy, and marks the measure as a revision and not a mere amendment to the state constitution.  All that holds true even though Prop 8 leaves intact other salutary aspects of the California Supreme Court’s decision in the marriage cases.

Yet another point of possible communication failure may have come with respect to the question whether Proposition 8 leaves intact rights that come with marriage, other than what Chief Justice George termed “the nomenclature” or “the label” marriage. 

When the Chief Justice next addressed Minter, George asked:  “What about the other rights though that go beyond the mere designation.  In answering that, what significance if any do you put to the rebuttal argument [in the official ballot pamphlet that] stated … Your yes vote means that only marriage between a man and a woman will be valid or recognized in California, but Proposition 8 will not take away any other rights or benefits of gay couples?”  (As a sidenote, it was a little perplexing to hear the Chief Justice speak about “mere designation” after writing last year’s opinion that so eloquently articulated the ways in which same-sex couples’ being treated the same as different-sex couples in their relationships, including access to the designation marriage, was integral to the equal dignity and respect required by the state constitution.)

Likewise, when Chief Justice George was speaking with Kenneth Starr, Dean of the Pepperdine Law School and counsel for the official proponents of Proposition 8 defending the measure, Dean Starr tried to insist that Prop 8 did not “invalidate” the marriages of same-sex couples entered into before the election, that there remained a “full panoply of rights.”  The Chief Justice immediately pressed him, “So they keep the rights?”  Whereupon Starr backed off or clarified, saying that the pre-election marriages of same-sex couples were not voided retroactively from the outset, but that California could not generally treat those couples who entered them as marriages after the election.   But George wanted to know why that was, why they wouldn’t keep the rights other than the name, “even though the rebuttal argument [in the ballot pamphlet] says Proposition 8 takes away no other rights or benefits?”

What Chief Justice George might have been contemplating was a state of affairs in which the Court holds that Proposition 8 takes away the power of the state of California to call same-sex couples “married” or their relationships “marriages,” but leaves in place all the rights acquired by couples who entered into their former-marriages before the election, both rights that were used before the election and ongoing rights from November 5, 2008 forward.  These presumably would not be domestic partnerships, because there are some rights of marriage that the domestic parternships lack (not to mention that they would not have been entered into in the fashion that the domestic partnership law provides).  They would rather be some new, as yet unnamed relationship created by the state constitution as a back-up, partial-equality measure if Proposition 8 became a valid part of the constitution but only stripped away “the nomenclature” of marriage.  A horse with no name, as it were.

That would not be an unreasonable reading of the effect of Proposition 8 in light of its language and the official ballot description.  It’s a little unusual – but then again, Proposition 8 was itself an unprecedented purported exercise of the amendment power.  And it would also seem to suggest that the domestic partnership law would have to be broadened, by virtue of the California constitution, to be identical to state marriage law except for the name.

Posted by Cruz at 9:37 AM | Link | 1 comment

Categories: Prop 8 California Supreme Court marriage sexual orientation