Last Thursday, in a major victory for LGBT Civil Rights, the Second Circuit Court of Appeals affirmed a lower court’s ruling that held that the Defense of Marriage Act (DOMA) was unconstitutional.
LGBT Civil Rights advocates can cheer yet another legal victory against the incredibly homophobic and harmful DOMA. There were two notable things about this decision that are significant.
The first is that the court held that sexual orientation discrimination is subject to intermediate scrutiny. The second is that the opinion was authored by Second Circuit Chief Judge Dennis Jacobs. Below is why both are significant.
1. The Court’s Holding of Intermediate Scrutiny
What does this actually mean for the non-lawyers? When it comes to evaluating discrimination, the courts employ three different levels of review to different types of discrimination:
Strict Scrutiny: This type of review is reserved to racial, national origin, and alienage discrimination. If the government discriminates against you on these grounds, the law is presumed unconstitutional and the government has an extremely high burden to prove it is constitutional.
Intermediate Scrutiny: This type of review is for gender and legitimacy discrimination. It works much in the same way that strict scrutiny does. Basically, a law that discriminates on the basis of gender is presumed unconstitutional and the government has a high burden to prove it is constitutional.
Rational Basis Review: This type of review is for all other kinds of discrimination. Generally, when the government discriminates against a class that doesn’t receive either strict or intermediate scrutiny, that discrimination is presumed constitutional and the burden is on the person challenging the law. It is typically very high burden. The government doesn’t even have to prove that its law is good or effective. It just has to prove that it had a rational basis for enacting the law. What this means is that even though a law discriminates, it is constitutional and most laws reviewed under rational basis are constitutional.
This last category is what courts have employed to review laws that discriminate on the basis of sexual orientation discrimination. All federal appellate courts that have looked at this issue (except for one, the 9th Circuit in 1989, which was subsequently reversed by a full panel) have held that rational basis review is the standard for sexual orientation discrimination.
That is why there are so many laws that discriminate against gays and lesbians that have remained on the books in spite of numerous court challenges. As a result, rational basis review for sexual orientation discrimination has caused great harm and has been a great injustice to the LGBT community.
Now, in 2008, a breakthrough occurred when the California Supreme Court changed this and held that, under the California Constitution, discrimination on the basis of sexual orientation is subject to strict scrutiny. The Connecticut Supreme Court and Iowa Supreme Court followed with respect to their own state constitutions.
However, many legal analysts remain skeptical as to whether federal courts will follow the lead of these state courts and apply heightened scrutiny under the federal constitution. Now a federal appellate court has done so.
The Second Circuit’s decision here is crucial for building momentum in the courts for sexual orientation equality. We won’t have sexual orientation equality until the courts say that laws that discriminate on the basis of sexual orientation are presumptively unconstitutional just like laws that discriminate on the basis of race and gender.
2. Second Circuit Chief Judge Dennis Jacobs
Dennis Jacobs is not just a Republican judge; he was appointed by George W. Bush and is known for being extremely conservative. Now there have been Republican judges who have ruled in favor of heightened scrutiny for sexual orientation discrimination in the past, the most prominent being former California Supreme Court Chief Justice Ron George (originally appointed by Reagan). And there have been Republican judges who have struck down laws that discriminate against gays and lesbians. But those judges had reputations for being very fair minded, non-political, and were not noted conservatives.
Jacobs is different and in most cases, his judicial record has looked more like that of John Roberts (being very favorable to the government on issues of terror, supporting the rights of big corporations, opposed to abortion rights, supporting state power at the expense of individual rights, strongly supporting the death penalty, etc.). He is a prime example of the conservative activist judges who Bush appointed to the federal benches. Here was a clear departure from traditional conservative ideology.
The fact that this decision was authored by him shows four critical things.
1. The idea that sexual orientation discrimination should be subject to heightened scrutiny was once a radical concept that disturbed and frightened most conservative legal thinkers. Even many liberal legal thinkers shied away from it. If a very conservative judge agrees that this is the proper standard of review, it is no longer as radical a concept as it once was.
2. Ted Olson is not the only legal conservative out there who believes in sexual orientation equality and Olson’s prominence on this issue may be rubbing off on others.
3. If Romney wins the Presidential election, it is going to be increasingly hard for him to appoint judges who will carry out his homophobic and heterosexist agenda from the bench.
4. Although we should be careful not to extrapolate what other judges might do as a result of the actions of one judge, the fact that Dennis Jacobs could be persuaded that DOMA was not only unconstitutional but that sexual orientation discrimination should be subjected to intermediate scrutiny suggests the possibility that even courts dominated by conservatives, including the U.S. Supreme Court, may be open to accepting these arguments as well.
This decision is significant for both its holding and its author and if it comes to pass that the Supreme Court decides that sexual orientation discrimination should be subject to heightened scrutiny, this opinion may very well be seen as the turning point.
Is the right of a woman to choose her own health needs with regard to abortion (and now contraception) safe and secure?
The answer is no.
Last night, Vice President Joe Biden and Congressman Paul Ryan sparred, among other things, over the issue of abortion. This is a notable race for the fact that for the first time both VP nominees are Catholic. Both were asked by the moderator how their religion impacted their politics and their stance on abortion.
Both men stated their moral opposition to abortion as a personal matter but both virulently disagreed on the role of government in the matter.
Ryan believes that abortion should be illegal in all cases even in cases of rape, incest, or even when a pregnancy causes risk to the life or health of the mother. Ryan has co-sponsored legislation to define all fertilized eggs as human beings, legislation that attempts to define “legitimate rape” in cases of abortion, legislation that entirely defunds Planned Parenthood, and legislation that would allow employers to deny their female employees insurance coverage for their contraception needs. Ryan defended his views last night saying that if one truly believes in life starting at conception, then one must be pro-life.
Biden strongly supports a woman’s right to choose, strongly stating last night that he believed in the separation of church and state and would not seek to impose his own views on the rest of society.
Both men reflect the views of their respective running mates.
So what’s really at stake here and why do their respective positions matter?
The answer is the courts. In 1972, the Supreme Court, in Roe v. Wade, held that the right to abortion was protected under the federal Constitution. 20 years later, the Court reaffirmed this position but by a narrow 5-4 margin (that was in many ways a surprise).
Currently, there is a bare 5-4 majority on the Supreme Court in favor of keeping the protection for a woman’s right to choose. Two of the Justices in that majority are 79 year old pancreatic cancer surivor Ruth Bader Ginsburg and 75 year old Anthony Kennedy. Given their age, health, and longevity on the Court (Justice Kennedy has been on the Court since 1987), it is very probable that either one of them could leave the Court during the next Presidential term. If either one of those Justices were to leave and be replaced by a pro-life Justice, the majority in favor of Roe v. Wade would be reversed with a majority of the Court now favoring its reversal. A woman’s right to choose could disappear overnight.
Thus who is elected this year could very well decide the fate of a woman’s right to choose.
If you are an undecided voter or you are someone who is ambivalent about the election generally but you are strongly pro-choice, this is a reason to get out to the polls this year and vote to reelect President Obama.
A dispute over an inheritance in New York goes far beyond traditional estates and trusts law and enters the realm of civil rights. The following story has pushed me to call for enacting a Wills and Trusts Non-Discrimination Act.
http://abcnews.go.com/US/gay-man-mary-woman-son-lose-inheritance/story?id=17043550
When New York businessman Frank Mandelbaum, the founder of Intellicheck, died in 2007, he left behind a will that dictated that his son, Robert Mandelbaum, must marry a woman in order for any of his grandchildren to inherit from a family trust left to his grandchildren (specifically he had to marry the woman who was the mother of the child).
Among many problems with this will provision, a significant one is that Robert Mandelbaum is gay. It’s in many ways a sad story. A homophobic/heterosexist father could never come to grips that his son was gay during his life and attempts to control his son and challenge his sexual orientation from beyond the grave.
Mandelbaum is now challenging this provision in court. He argues that it violates public policy and contravenes New York’s marriage equality law, which was recently passed in 2011. I agree with him. It is longstanding estates and trusts law that will provisions cannot induce people to divorce their current spouses in order to inherit and when courts face those types of provisions, they will typically strike them as vioalting public policy. Robert Mandelbaum took advantage of New York’s marriage equality law in 2011 and married longtime partner, Jonathan O’Donnell. In order to inherit for his young son, Robert Mandelbaum would be forced to divorce his current husband. The courts should follow precedent here and strike this provision down.
However, this story reminds me of the need to create a remedy for discrimination in wills. Many people want to protect the right of individuals to freely leave behind their inheritances as they wish. The law and the courts are very sensistive to this and generally speaking, estates and trusts law will place high burdens on those attempting to challenge will provisions. I agree with the law and I support and generally defend testamentary freedom for people to leave their inheritances as they want to.
However, courts should never be in the business of enforcing discriminatory provisions. We see this understanding of law in contract law. People generally have a freedom to contract and courts generally defer to those contracts during disputes, placing a high burden on those seeking to get out of the contract or have it rewritten. However, it is well established that courts will not enforce racially discriminatory provisions of contracts. It is a principle of constitutional law. The same likely applies for gender discrimination and in California (and some other states), sexual orientation discrimination.
I think the same legal concept should exist for wills and trusts.
I would propose a law that prohibits courts from enforcing provisions of wills that would discriminate on the basis of race, ethnicity, gender, sexual orientation, religion, marital status, gender identity, or physical handicap. It would also prohibit courts from enforcing provisions of wills that would violate one’s constitutional right to privacy. It would require courts to strike these provisions from wills and trusts that come before them in court but would leave everything else in the will intact. It would also create a right of action for beneficiaries burdened by discriminatory provisions.
It would not require any kind of distribution to beneficiaries or force inheritances for those who had been disinherited, even if those disinheritances are the result of bigotry. If a parent was unhappy with their gay child, they would still be free to disinherit that child. However, they would not be allowed to create will that allows their gay child to inherit only if they renounce and deny their sexual orientation.
There are parents out there who may never come to grips with the sexual orientation of their kids or the decisions of their children to marry people from other races or religions or to remain unmarried. That’s a sad and unfortunate part of the reality we live in and as a society, we can’t control the individual thoughts and bigotry of individuals (nor do we want to).
However, courts should not be in the business of enforcing discriminatory provisions in wills.
So this story in the news got me riled up not only because it is a blatant example of gender discrimination but because of the lack of knowledge demonstrated by the CNN reporter, Sandra Endo, here. Reporters for major news networks should at least know some basic legal knowledge and shouldn’t make suggestions that it’s a-okay for individuals or business to engage in illegal discriminatory act.
Basically, Virgin Australia airlines has a policy in place that states that no man may sit next to unaccompanied minors aboard a flight and must be moved in favor of a woman. This is reportedly done because the airlines believes that men are more likely than women to be pedophiles and therefore any man sitting next to an unaccompanied minor on a plane is a pedophile risk.
Now, this is blatant gender discrimination and it’s pretty outrageous. The presumption that the airline makes here is that all men have some sort of propensity to be pedophiles and commit harmful acts towards children. Therefore to be safe, all men must be prohibited from sitting next to unaccompanied minors.
It’s based on totally flawed logic. Because even if I were to accept, for the sake of argument, that men were more likely to be pedophiles than women, there are plenty of female pedophiles out there. You might easily remove a male non-pedophile from sitting next to an unaccompanied minor and place a woman next to that minor who is a pedophile. Also, pedophiles are such a small, tiny fraction of the overall population that to blanket an entire gender with the presumption of pedophilia is clearly discriminatory against men and also flawed. It should be a reminder that we cannot look at the actions of one person who belongs to a group and then ascribe those actions to that entire group. That’s discrimination and it’s wrong.
But I’m more disturbed by the commentary of the CNN reporter here. She points out that none of the U.S. airline carriers have such a policy in place and no U.S. Department of Transportation policy in place mandating this. And she reasons that “since there’s no nationwide Department of Transportation policy for airlines, carriers are left to figure out what’s best.”
My response? No. No. No. No.
U.S. airlines are prevented from having such a policy by federal law. How so? It’s called the 1964 Civil Rights Act, a far reaching law that prohibits, among other things, discrimination in public accomodations. It’s a broad law and a strong protection but basically the gist of it is, a place of business can’t bar certain people from being customers AND cannot treat customers differently. So if you own a restaurant, you can’t put up a sign saying ‘white’s only.’ You also cannot allow in minorities but treat them differently by putting them in their own separate sections of the restaurant or giving them a different level of service or charging them differently.
Some of you may be thinking, “yeah but wasn’t the Civil Rights Act of 1964 about race? How does it apply here?” The 1964 Civil Rights Act not only prohibits discrimination on the basis of race and ethnicity, it ALSO prohibits discrimination on the basis of gender.
That’s what the act of prohibiting men (but not women) from sitting next to unaccompanied minors.
Now, let’s assume the Department of Transportation had some legal authority (and I’m not aware of any) to supersede the Civil Rights Act, the airlines could still not have such a policy. Why? Because if the DOT were to create such a policy, it would be clearly unconstitutional as a violation of Equal Protection rights.
Gender Discrimination by the government, just like race discrimination, is presumptively unconstitutional under the 5th and 14th Amendments of the U.S. Constitution. The Department of Transportation couldn’t tell airlines that they must seat people of different races in different sections of the cabin or serve them different food. Nor could they tell them that they must prohibit men (and not women) from sitting next to unaccompanied minors.
So, no, airlines are not free to choose. Gender discrimination is not just wrong, it’s illegal under federal law.
Recently, in response to Chick-Fil-A President Dan Cathy’s comments against same-sex marriage, a growing chorus of major city mayors has publicly threatened to block the expansion of the fast food chain into their cities. This started with Boston Mayor Thomas Menino[1] but he has been joined by Chicago Mayor Rahm Emmanuel,[2] San Francisco Mayor Ed Lee,[3] and Washington, D.C. Mayor Vincent Gray.[4] As a center-left gay man who has actively been involved in the fight for same-sex marriage, I should be expected to be happy about this and supportive of the stances of these mayors to block Chick-Fil-A. Think again.
With all due respect to these four mayors (elected officials who I otherwise like and greatly respect and admire, especially Mayor Gray of DC), what they and other supporting politicians are doing here is wrong.
Don’t get me wrong, Dan Cathy is an anti-gay bigot. I’m not defending his statements or the actions of his company, Chick Fil-A. It’s unfortunate that he has the financial resources to pour into campaigns that seek to discriminate against LGBT Americans. I support the boycott efforts of the chain and I am pleased with the companies who have ceased to do business with Chick-Fil-A.[1] I’m glad that their actions have drawn public criticism from these mayors and other elected officials who are joining this boycott. I applaud and fully support their decision publicly criticize Chick Fil-A.
However, I am steadfastly opposed to any government action that would seek to block Chick-Fil-A expansion on account of the company’s position on same-sex marriage and its activism against same-sex marriage.
As an ardent supporter of same-sex marriage, I firmly believe that the right of gays and lesbians to marry the person of their choice is more than just a public policy issue. It is a constitutionally protected and guaranteed right. For those of us who battle for marriage equality, we are fighting for the broader principle of sexual orientation equality that we believe is required by the Constitution.
It is also a constitutional right to express oneself freely especially on political matters. It is one of our most fundamental and cherished American liberties. We have the right to speak our minds freely, to take political positions, and to vigorously advocate for those positions. This is true even if that expression is unpopular, offensive, in poor taste, hate-filled, stupid, or even just plain downright bigoted. Free speech and political expression is not just limited to that which we like but also that which we downright hate. After all, if that was the case, it wouldn’t really be free.
In his remarks attacking LGBT people and opposing marriage equality, Dan Cathy is exercising his right to free speech. By speaking out and donating money to groups opposing marriage equality, he and Chick Fil-A are engaging in political activity. By threatening to block the expansion of Chick Fil-A on account of its opposition to same-sex marriage, these mayors are not only threatening to punish this exercise of speech and political activity, they are threatening to punish Chick Fil-A for its view against marriage equality. If these mayors actually made good on their threats, their action would be patently unconstitutional.
Those of us who believe in marriage equality and sexual orientation equality as a matter of a constitutional guarantee should oppose any effort to restrict the constitutional rights of others. This is true even in the case of Chick Fil-A. What Dan Cathy said is offensive as is Chick Fil-A’s decision to contribute to campaigns against marriage equality. But we must defend their right to this position. The same document that protects and guarantees the right to marriage equality is also the same document that protects Dan Cathy and Chick Fil-A and their decision to advocate against marriage equality. We must respect that.
It was Justice William O. Douglas who once wrote in defense of free speech that “Government does not sit to reveal where the ‘truth’ is. People are left to pick and choose between competing offerings. There is no compulsion to take and read what is repulsive any more than there is to spend one’s time poring over government bulletins, political tracts, or theological treatises. The theory is that people are mature enough to pick and choose, to recognize trash when they see it . . . .”.[2] In the case of Chick Fil-A, I will follow Justice Douglas’s advice.
I will oppose any efforts to block Chick Fil-A’s expansion and I will defend their right to advocate vigorously against marriage equality. However, I will also point out the following. Fried chicken tenders are one of my favorite foods (my mom and brother have joked that I’ve never met a chicken I didn’t like) and Chick Fil-A chicken tenders are very tasty. I can assure you though that as long as the company continues its stance and its advocacy, I will not be ordering another order of Chick Fil-A chicken nuggets again. I hope others will join me.
[1] http://abcnews.go.com/blogs/headlines/2012/07/jim-hensons-muppets-split-with-chick-fil-a-over-gay-rights/
[2] Ginzburg v. United States, 383 U.S. 463 (1966) (Douglas, J., dissenting).
[1] http://www.reuters.com/article/2012/07/26/us-usa-gaymarriage-chickfila-boston-idUSBRE86P1AT20120726
[2] http://www.suntimes.com/news/cityhall/13988905-418/ald-moreno-trying-to-block-new-chick-fil-a-over-boss-stance-on-gay-marriage.html
Eric Garcetti, who is the City Council President of Los Angeles, is one of my favorite elected officials. He’s smart, he’s Liberal, he’s passionate about the City of Los Angeles, and (most importantly) he’s one of the few politicians who actually has gotten accomplished what he set out to do as a candidate. He represents the 13th Council District, a vibrant yet often challenged district which encompasses Hollywood and surrounding neighborhoods. Since Garcetti won in an upset over 10 years ago, he has been a champion of progressive/liberal issues on the City Council and he has done wonders for the District in terms of helping local businesses, supporting transit oriented development, building new parks, and improving city services.
The LA City Council, which is led by Councilman Garcetti, voted to endorse Occupy LA at the beginning. This vote came without opposition. However, the city has recently had a change of heart and is now threatening to evict Occupy LA from its protest site at LA’s City Hall Park. I find this odd as the City which once endorsed a protest now seeks to stop that protest. Technically, an eviction notice was scheduled for 12:01 am this morning though the protesters have not been removed by the LAPD. Even though I am not a member of Occupy, I am kinda incensed by the continued attack by city officials across the country against peaceful, mostly law-abiding, protesters. In response to the news, I sent the following email message to Garcetti:
“Councilman Garcetti,
I hope you will take a stand against the plans to evict Occupy LA. Frankly, I don’t see the harm that is caused by the actions of these protesters in LA City Hall Park. However, I do see the immense harm and cost of removing these protesters. Those who are arrested will simply be released and go back to protest in the same place. Violence used by the police against protestors will result in extensive damage that the city will have to pay for to clean up. This has occurred in every single city that has used violent police force to clamp down on Occupy protesters. The city also opens itself up to civil liability through Section 1983 suits as well as other suits at common law that result from injuries and personal property damage when police evictions occur. Even if the City prevails in court, the City of Los Angeles will still have to pay a large amount of money on attorneys and court costs to defend the numerous law suits.
Furthermore, there is a practical component that cautions against evicting Occupy. If the Occupy protest is shut down on Main Street, why won’t the protests simply move elsewhere that is even more inconvenient for the city and its residents? If Occupy LA cannot protest at City Hall, why won’t they simply move to Holmby Park, De Neve Square, Briarwood Park, Runyon Canyon Park, Will Rogers Park, or Crestwood Hills Park? The residents of those neighborhoods would be extremely unhappy with seeing large scale protests in their otherwise quiet (and generally affluent and exclusive) neighborhoods. Although the LAPD could then start the process of evicting protesters from those places, the residents would likely be even unhappier with the process of removing the protesters which would result in mass police response, increased traffic, increased noise, and unwanted media coverage. Alternatively, if Occupy LA cannot protest at LA City Hall, what if Occupy LA simply decides to move to the Westside Pavillion, the Century City Mall, Brentwood Gardens, Universal City Walk, Hollywood and Highland, the Grove, or the Sherman Oaks Galleria? Under the California Constitution, they have a right to protest there and removing protesters from malls containing expensive stores would be even costlier. If the City forces Occupy LA to leave City Hall Park, it’s only a matter of time before they go elsewhere.
Finally, I would like to point out the First Amendment issues involved with shutting down this protest. Americans now have a First Amendment right to (1) have their corporations make unlimited political contributions in campaigns, (2) depict images of animal cruelty, (3) protest at funerals (including those of deceased soldiers and using homophobic and racial slurs), and (4) sell violent video games to minors. Yet, we have local officials all over the country moving in to silence political protests in public places. The tent encampments of Occupy are a form of political expression. The act of setting up a tent is a statement against government policies that led to the sub prime housing lending bubble and foreclosure crisis and against the current government refusals to help out those in foreclosure (while still helping out large banks). The tents are a metaphor for the fact that people can’t afford their homes and hence have no place to live. People are being foreclosed upon, people are underwater on their mortgages and struggle to sell their homes and get out from the mortgages, and rental housing rates are sky high. The tents are a form of political expression against current government policies and the economic reality for tens of millions of Americans.
The fact that this expression is disturbing or bothersome or annoying or inconvenient is not a compelling or even legitimate reason to silence this form of protest. Certainly, in light of what is protected under the First Amendment, the tents should be allowed to stay as should the Occupy LA protest. Occupy LA and the tents should be allowed to stay. The First Amendment doesn’t just protect the speech and protests we like and approve of, it protects all kinds of speech and protest, even that which we don’t like. The same is true for Article I, Section I of the California Constitution, which offers an even more expansive protection of free speech.
Finally, even if I accept what Mayor Villaraigosa says about the need for public safety and cleaning and the operating hours of the park, I still have a problem with the wholesale eviction of Occupy LA. At the very least, the City could ask Occupy LA to temporarily move for a few hours while they clean the park and then let them back in. If the parks are closed at night and this rule is a long standing one (not simply enacted recently in order to evict Occupy), then the City should make it clear that Occupy LA cannot be in the park at night and must pack up their tents and leave the park at a certain hour. However, the City should make it clear that Occupy LA may resume their activities, including the pitching of tents, during the day. I think that is far more reasonable than a full on eviction from City Hall Park.
Even if you can’t stop an eviction from happenning (as you are only one vote out of 15 on the Council), I hope you will at least speak out against these eviction actions as they are (1) pointless, (2) unneccessary, (3) costly, and (4) violative of the Constitutional rights of the Occupy protesters.”
Major questions of law are hanging over our next year’s critical elections. We can debate healthcare all we want but the political debate will be informed by the U.S. Supreme Court’s decision over the constitutional challenge to it which will likely be handed down next May or June. When we look at the future of Proposition 8, we know that its fate is now in the hands of the courts. When we look at the new voting restrictions that Republicans are attempting to impose across the country in order to give themselves a victory in 2012, we know that the constitution will ultimately guide whether they succeed and restricting voting.
Whatever happens politically, the results will be impacted by the law. Understanding that law and what’s going on is what thelegalally.com is all about. I hope that whatever happens in 2012, I’ll be able to fill people in about what’s actually going on and what the law is.
