CruzLines

Marriage Equality Defeated (for now) in Maine

2009-11-04T07:33:06-08:00

A majority of voters in Maine yesterday chose to repeal the state’s law allowing same-sex couples to get married before it even went into effect, the Bangor Daily News reports here. Following last year’s debacle of Proposition 8 stripping same-sex couples of the right to marry, Maine becomes the second state to have (almost) had equal state-controlled rights for lesbigay persons only to lose them to the expression of fears or prejudice at the ballot box.

Thus Andrew Sullivan is wrong to write in his blog that “in Maine, … gays do have equality but may now merely be denied the name.” Unless he is writing about the abstract moral equality that underlies claims to human rights, or the abstract political equality of persons and citizens ostensibly protected by the U.S. Constitution, Sullivan is simply wrong to assert that lesbigay people in Maine “have equality,” for several reasons.

First, same-sex couples in Maine are now relegated to state registered domestic partnerships but, unlike California’s domestic partnerships, these are decidely weaker than civil marriages. The Maine Department of Health and Human Services, has even cautioned in bold print that "[i]t is important to remember that a registered domestic partnership is NOT the same as a marriage and does not entitle partners to rights other than those for which the registry was intended. This registry is intended to allow individuals to have rights of inheritance as well as the rights to make decisions regarding disposal of their deceased partners remains."

Second, even if Maine attached all the same state-controlled rights, benefits, and obligations of civil marriage to domestic partnerships, the voters’ decision to deny marriage to same-sex couples imposes a legal burden on them that different-sex couples don’t face. When a married couple goes to another state, there is a well established body of interstate marriage recognition law that they can appeal to. Granted, the “Defense of Marriage Acts” (DOMAs) adopted in many states make it harder to invoke this body of law successfully. But same-sex couples in Maine now will face the additional hurdle of having also to argue that their non-marital status should count as a marriage for purposes of this body of law. Likewise, if Congress were to repeal the federal DOMA, which Barack Obama has said he supports, then married same-sex couples would automatically be governed by the estimated 1,138 federal laws that make marital status relevant; same-sex couples from Maine, however, would have additionally to try to argue that their domestic partnership, intentionally distinguished from marriage, should nonetheless be treated as a marriage for federal law purposes.

And third, Andrew Sullivan here seems to be making the same volte-face as the California Supreme Court did this past spring when it upheld Proposition 8 , which stripped same-sex couples in California of the right to marry. When Chief Justice Ronald George wrote for the Court in 2008 in striking down the marriage exclusion as violating the California Constitutionl, the Chief Justice penned eloquent passages about the importance of being included in the institution of “civil marriage” as such for the equality and dignity of lesbigay people. Yet when he wrote for the same court a year later and upheld California’s pernicious ballot measure, his reasoning seemed to many to hold that this was a sufficiently non-fundamental change to the state constitution – even though it targeted a minority group defined by a suspect classification for deprivation of a fundamental right, the right to marry – because the “sole” effect of Prop 8 was to deny same-sex couples the “designation” of “marriage.”

Andrew Sullivan seemed to appreciate the stakes when the California Supreme Court first invalidated the discriminatory marriage exclusion. In his blog mere days after the decision, he wrote:

“Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.”

Nothing has changed about the nature of equality, so it is not apparent to me why Sullivan seems to have changed his mind about equality in Maine.

Delhi High Court Curtails Sodomy Law

2009-07-02T07:06:54-08:00

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."

Conference Announcement -- The Global Arc of Justice: Sexual Orientation Law Around the World

2009-01-05T18:00:00-08:00

The Global Arc of Justice Conference will be a four-day international conference focused on advances in LGBT rights from all round the globe, with a special focus on Latin America. Convened by the Williams Institute, a research center on sexual orientation and gender identity law and policy at UCLA Law; the International Lesbian and Gay Law Association (ILGLaw); and the City of West Hollywood; the conference will be held from March 11-14 on the UCLA campus in Los Angeles and in West Hollywood, California. The conference will offer simultaneous translation in English and Spanish.

Topics covered at the Global Arc of Justice Conference will include international efforts to advance legal recognition for same sex couples; the repeal of sodomy laws in former British Colonies; efforts by national governments to end homophobia and advance LGBT equality; implementation of the Yogyakarta Principles in litigation strategies and legal scholarship; and advancement of the rights of transgender and intersex people. Conference activities will include strategy working groups, paper presentations, plenary sessions, and various networking opportunities and celebrations.

This is going to be a great conference, featuring academics, activists, lawyers, judges, and politicians from around the world. The conference web site is http://www.law.ucla.edu/WilliamsInstitute/programs/GlobalArcofJustice2009.html, and registration is open. There are special rates for those who register by February 1, and a special hotel conference rate is available with a February 15 deadline for reservations.

Update: Sorry, in my rush to get this post (largely borrowed from the conference web site) up, I forgot to note that I am the current President of the International Lesbian and Gay Law Association (ILGLaw), co-convenor of this conference. That's not what makes the conference great. It's the extraordinary range of knowledgeable participants (and the hard work of Brad Sears, Randy Bunnao, and the rest of the folks at the Williams Institute).

The United Straights of America?

2008-12-18T22:22:56-08:00

In a double symbolic blow to sexual orientation equality in the U.S. today, it was announced that the invocation at the inauguration of President Elect Barack Obama will be given by Rev. Rick Warren, and the U.S. refused to vote in support of a United Nations declaration introduced in the General Assembly by France. Warren, the leader of the Saddleback Church in Orange County, California, actively campaigned for Proposition 8 to strip same-sex couples of their fundamental right to marry under the California Constitution. France's nonbinding declaration, supported by 66 countries, affirmed that international human rights protections extend to all persons "regardless of sexual orientation and gender identity." Score -1 for the outgoing administration and -1 for the incoming administration.