LESBIAN/GAY LAW NOTES ISSN 8755-9021 September 2004 Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls.edu Contributing Writers: Ian Chesir-Teran, Esq., New York City; Allen Drexel, Esq., New York City; Joseph Griffin, Student, NY Law School '05; Alan J. Jacobs, Esq., New York City; Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New York City; Sharon McGowan, Esq., New York, N.Y.; Daniel R Schaffer, New York City; Audrey E.Weinberger, Student, NY Law School '05; Robert Wintemute, Esq., King's College, London, England; Leo Wong, Esq., Newark, New Jersey. Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353- 9118; e-mail: le_gal@earthlink.net. Inquire for subscription rates. (C) 2004 by the Lesbian & Gay Law Association Foundation of Greater New York. CALIFORNIA HIGH COURT VOIDS SAME-SEX MARRIAGES By unanimous vote, the seven justices of the California Supreme Court ruled on August 12 in _Lockyer v. City and County of San Francisco_, 95 P.3d 459, 17 Cal. Rptr. 3d 225, that local officials in San Francisco could not unilaterally defy the state's marriage law and issue licenses to same-sex couples. Suggesting that "chaos" would ensue if local officials generally could refuse to observe the requirements of state laws based on their individual ideas of what is constitutional, Chief Justice Ronald George acknowledged for the court that there might be certain circumstances where local officials would be justified in doing so, but insisted that this situation did not fall within the exceptions. However, the court expressed no official view as to whether California's marriage law violates either the federal or state constitution by denying the right to marry to same-sex couples. Instead, George insisted, the court had taken on this extraordinary case at the request of Attorney General Bill Lockyer solely to determine "whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional." Several times, George asserted in his opinion that the court was not taking any position on the constitutionality of the marriage law, but, in fact, it did take one position: that the law is not "patently" or "obviously" unconstitutional. It was necessary for the court to take a position on this because one of the exceptions that they recognized to the general rule was that a local official could refuse to enforce a state law that was patently or obviously unconstitutional. For example, suppose the U.S. Supreme Court declared that an Arizona statute was unconstitutional, and California had an identical or substantially similar statute. In that circumstance, said the court, local officials in California would be justified in refusing to enforce the California statute. In this case, however, the court pointed out that although the Massachusetts Supreme Judicial Court had ruled that the Massachusetts Constitution's equality guarantee required that state to allow same-sex couples to marry, there were decisions from other state courts to the contrary, and the only U.S. Supreme Court decision on the question, _Baker v. Nelson_, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972), appeared to indicate that the question of same-sex marriage did not even raise a "substantial" issue under the federal constitution, at least at that time. (Interim developments since _Baker_, including the Supreme Court's decisions in _Romer v. Evans_ (1996) and _Lawrence v. Texas_ (2003), would certainly suggest that today the federal constitutional questions raised by same-sex marriage would be seen as substantial.) Although Mayor Gavin Newsom reportedly concluded that the California marriage law was unconstitutional based on his reading of the Massachusetts case and an earlier decision by the Vermont Supreme Court that led to passage of that state's Civil Union Act, Chief Justice George noted that the Vermont case did not find that the state was required to let same-sex couples marry, and that the mayor had made his decision based not on a deliberative process in which opponents of same-sex marriage had an opportunity to present their case, but solely on his own, thus denying due process of law to those opposed to the decision. George also mentioned that the dissenting opinion by U.S. Supreme Court Justice Antonin Scalia in _Lawrence_, arguing that the Court's decision in that case opened the door to same-sex marriage, was contrary to a disclaimer in Justice Anthony M. Kennedy's decision for the Court, where Kennedy specifically stated that the Court's ruling did not concern whether the states were required to extend legal recognition to same-sex relationships. Consequently, the argument by attorneys for San Francisco that Scalia's views could serve to bolster their case was not persuasive to the California Supreme Court. Under the circumstances, George found that this was not a case where local officials, such as the mayor or the city clerk of San Francisco, could conclude that they must allow same-sex couples to marry because the California marriage law was clearly unconstitutional. And, said the court, ultimately the decision whether a law is unconstitutional lies with the courts, not with local executive or administrative officials whose role with respect to the marriage law is purely ministerial. (A ministerial role is one in which no discretion is involved. If a couple is qualified under the clear meaning of the law to marry, the local officials must grant a license, and are not called upon to exercise any sort of judgment.) George also said that another exception to the general rule, where defiance of state law is necessary to get the issue of constitutionality before the courts, clearly did not apply to this case. It would be an easy matter, he said, to get a same-sex couple to apply for a license, be turned down, and then file a lawsuit, as has been done in other jurisdictions, and as was done more than half a century ago to get a challenge to the constitutionality of California's law against interracial marriage before the state supreme court. He also dismissed the city's argument that failure to issue the licenses under an unconstitutional law would leave city officials open to liability, pointing out that they would have immunity from personal liability under federal law and that state law would require that any suit against them be defended by the state and that the state bear liability for damages in cases where local officials were sued for following a state law that was not clearly unconstitutional. However, the court was not unanimous about the appropriate remedy for this case. Five members of the court, led by George, concluded that the appropriate remedy was to declare the more than 4,000 marriages that were performed for same-sex couples in San Francisco to be "void and of no legal effect," and to instruct the local officials in San Francisco to contact all those who had been issued licenses to inform them of this decision, to offer to refund the fees they had paid for the licenses, and, incidentally, to allow them to present evidence, if any, that they were not a same-sex couple and thus that their marriages were valid. The registrations of same-sex marriages by the San Francisco clerk's office are to be cancelled. Two members of the court disagreed with this disposition. Justices Kathryn M. Werdegar and Joyce L. Kennard each wrote separate opinions, stating their agreement with the main holding of the court and their disagreement with the remedy. Justice Werdegar suggested that the court should have abstained from ruling on the validity of the marriages until a separate law suit, now pending in the Superior Court in San Francisco, can decide whether the marriage law violates the state and/or federal constitutions. She contended that if this underlying issue is resolved in favor of same-sex marriage, then all those who had been married between February 12 and March 11 would be entitled to recognition of their marriages, provided the ruling was held to be retroactive in effect. Justice Kennard saw a problem of fundamental fairness in declaring the marriages void in a proceeding where the couples themselves were not parties and had no opportunity to be represented directly. She also rejected the more sweeping language in the court's ruling about the respective roles of different branches of government in interpreting and applying the constitution, although she agreed that in this case the mayor and other local officials in San Francisco had gone beyond their authority. Countering these arguments, George asserted that if the pending same-sex marriage case results in a ruling for the plaintiffs, all the couples could apply for new licenses and be married again. He also insisted that the voiding of their prior marriages leaves them no worse off than they were before, since the local officials never had the authority to issue the licenses and the state has not recognized those marriages for any purpose. He also noted that although the court had refused to allow the same-sex married couples to intervene as parties in the Supreme Court case, it had received numerous _amicus_ briefs on their behalf, including briefs from the major gay rights litigation groups, and so those couples' arguments had been heard. While the court's ruling is a setback for proponents of same-sex marriage, and also might be seen as at least somewhat undermining the pending same-sex marriage lawsuit in San Francisco by suggesting that _Lawrence v. Texas_ does not go so far as Justice Scalia had contended in his dissent, the court did pointedly refrain from stating any direct holding on the question of same- sex marriage under the California or federal constitutions, leaving open the possibility of ultimate victory for same-sex marriage advocates sometime down the line. Shortly after the court's decision was issued, San Francisco Supervisors Tom Ammiano and Bevan Duffy proposed the creation of a "Marriage Equality Fund" to which couples could donate the refund of their marriage license fees, to help cover the city's legal costs in defending against the state's "intrusion" into city policy. They also urged an amendment to the city's domestic partnership law that would allow all those who married to be accorded the full rights of domestic partnership in the city by virtue of those marriages, without need to file a new domestic partnership statement. _Bay City News_, Aug. 17. A.S.L. LESBIAN/GAY LEGAL NEWS Massachusetts Supreme Judicial Court Says Lesbian Co-Parent Has No Child Support Obligation A sharply-divided Massachusetts Supreme Judicial Court ruled on August 25 in _T.F. v. B.L._, SJC-09104, that although a lesbian co-parent had promised to contribute support for the child born to her former partner, such a promise was not a binding contract in Massachusetts, and that the courts could not use their equitable powers to order her to support the child. The opinion for the court by Justice Judith A. Cowin found that it would be contrary to public policy to require somebody who is not a legal parent to pay child support, even when they had promised to do so. This case was somewhat unusual in that the co-parent moved out of their apartment a few months before the child was born. According to the opinion, the women met in 1995 and began living together in the fall of 1996. They had a commitment ceremony on May 30, 1999, pooled their resources and designated each other as beneficiaries on their insurance and retirement plans. T.F. had long wanted to have a child, but B.L. was reluctant for some time due to her beliefs that her own childhood experiences would make her a poor parent. She only gave in when it looked to her like this might be necessary to save the relationship. Although both women had physical problems that created some barriers to pregnancy, B.L.'s problem was worse, so T.F. was the anonymous donor insemination recipient who became pregnant. Ultimately B.L.'s willingness for them to have a child did not save the relationship, and B.L. moved out in May 2000. On July 1, 2000, T.F. gave birth prematurely to a baby boy. Before B.L. moved out, she had expressed regrets about being a "separated parent," said she hoped to be able to adopt as a co-parent even though they were no longer together, and, according to T.F.'s legal complaint, "promised financial support and promised to talk later about the details since she wanted to just focus on the break-up of the relationship at that time." After a few months of being in contact and visiting with the baby, B.L. broke off her relationship and refused to provide any support beyond the initial $800 she had contributed. T.F. filed suit against B.L. in the Hampshire Division of the Probate and Family Court, where Judge Gail Perlman heard the case. Judge Perlman concluded that there was theoretically an implied contract between the women, but she was uncertain whether "parenthood by contract" was possible in Massachusetts, so she reported the matter to the Appeals Court, and the Supreme Judicial Court decided to take the case directly. Justice Cowin found that "the evidence warranted the judge's finding that there was an agreement by the defendant to undertake the responsibilities of a parent in consideration of the plaintiff's conceiving and bearing a child," but that "the question remains whether the court can enforce this contract." Reviewing past Massachusetts cases, Cowin found, quoting a 1946 case, that "the decision to become, or not to become, a parent is a personal right of such delicate and intimate character that direct enforcement by any process of the court should never be attempted." She declared that "parenthood by contract is not the law in Massachusetts, and, to the extent the plaintiff and the defendant entered into an agreement, express or implied, to co- parent a child, that agreement is unenforceable." The court specifically rejected an argument raised by the dissenters, who suggested that the courts have general powers to make orders in the best interest of children, and that it would be in the best interest of this child to receive support from two individuals rather than one. "This argument," wrote Cowin, "however informed by genuinely good intentions, misapprehends the extent and purpose of the Probate and Family Court's equity powers. The equity powers conferred by the legislature on the court are intended to enable that court to provide remedies to enforce existing obligations; they are not intended to empower the court to create new obligations." Since the duty to support a child in Massachusetts is based on a statute, and the statute only imposes that duty on parents or others who are in a legally recognized status, the court was unwilling to stretch the law to cover a case like this. The court made no mention of how the availability of same-sex marriage in Massachusetts might change the legal land-scape for same- sex couples confronting these types of issues in the future. The three dissenters, in an opinion by Justice John M. Greaney, while agreeing that "parenthood by contract is not the law in Massachusetts," argued that there are strong public policies expressed by Massachusetts statutes to support a court's use of its equitable powers to ensure proper support for children. "The plaintiff's resort to the equity jurisdiction of the Probate and Family Court is entirely appropriate," wrote Greaney. "That our statutes offer the plaintiff no remedy, because the defendant is not a legal parent, does not preclude an order of child support." After noting the broad equitable powers that the legislature had conferred on the court to look out for the best interest of children, Greaney wrote: "The existence of an agreement to support on the part of the defendant, buttressed by society's interests (as expressed through our statutes and our case law) and the best interests of the child standard, requires relief here." The other dissenters were Chief Justice Margaret Marshall, who authored the famous _Goodridge_ same-sex marriage decision last November, and Justice Roderick Ireland. Bennett Klein, an attorney at Boston's Gay and Lesbian Advocates and Defenders, argued the case for T.F. A.S.L. California Supreme Court Will Tackle Lesbian Mother Issues Vacating three intermediate court of appeal decisions and consolidating the cases for joint consideration, the California Supreme Court announced on September 1 that it would take on the long-simmering question of whether California courts can recognize any parental rights for lesbian co-parents under existing domestic relations statutes, a question as to which the intermediate courts are split. The three cases are _K.M. v. E.G._, 13 Cal. Rptr. 3d 136 (Cal. Ct. App., 1st Dist., May 10, 2004), _Elisa Maria B. v. Superior Court of El Dorado County_, 13 Cal. Rptr. 3d 494 (Cal. Ct. App., 3rd Dist., May 20, 2004), and _Kristine Renee H. v. Lisa Ann R._, 16 Cal. Rptr. 3d 123 (Cal. Ct. App., 2nd Dist., June 30, 2004). In _K.M._, a case that arose in Marin County, E.G. gave birth to twin girls using eggs donated by her partner, K.M. The couple raised the girls together for several years before separating. K.M. sued for parental rights, seeking joint custody, and pointing out that she was the genetic mother of the twins, but the court found that K.M. had signed a binding waiver prior to their birth in which she had acknowledged that E.G. would be the sole legal parent, and further had not adopted the children after they were born. Under the circumstances, the court found K.M. could not seek parental status. In _Elisa Maria B._, both lesbian partners had children, using the same sperm donor so that the children would be related to each other as half-sibs, and they raised the children together until they separated. Elisa had agreed to provide financial support when possible, but stopped making payments about a year and a half after the split-up. The other woman, Emily, was on welfare, and the county sued Elisa for child support on behalf of Emily's children. A trial judge ordered support, but was overruled by the court of appeal, which held that a support obligation had to be based on a recognized legal parental relationship, which was not present here. Finally, in _Kristine Renee_, a June 30 decision not previously reported in _Law Notes_, the lesbian couple had used an innovative procedure devised by the National Center for Lesbian Rights that was permitted by trial judges in some parts of the state. After Kristine became pregnant through donor insemination, they had a lawyer draft a stipulation that both women signed declaring that Lisa would be considered a parent with full parental rights, and had a family court judge issue a judgment based on the stipulation. They then used the judgment to get the hospital to list Lisa as a parent on the child's birth certificate. The couple split up when the child was two, and Kristine filed a lawsuit seeking to have the judgment voided to extinguish Lisa's parental rights. The trial judge rejected Kristine's suit, holding that Lisa could pursue custody and visitation pursuant to the prior judgment. The court of appeal reversed, finding the original judgment invalid, on the ground that parental status must be determined under the state's Uniform Parentage Act, not by stipulations between parents and third parties. However, the court held that to avoid equal protection concerns, the Uniform Parentage Act should be construed in a gender-neutral manner, so Lisa might be able to establish her parental rights as if she was a father. The court also observed that with California's expanded domestic partnership law going into effect the beginning of 2005, many problems caused by gaps in existing law may be obviated for individuals who enter domestic partnerships before having children. All three of these court of appeal decisions are now vacated. Although the cases present distinctive fact patterns and raise slightly different policy issues, the common thread requires a determination by the Supreme Court about whether the pertinent statutes should be literally construed in a way that fails to take account of the reality of families headed by same-sex couples, or whether, as in the _Kristine_ case, the court can fill the gaps left by the legislature and use a creative interpretive process in developing appropriate law to govern situations where same-sex partners with children end their relationships. A.S.L. Florida Appeals Court Finds Kantaras Marriage Void Florida now joins a list of other states holding that, for purposes of determining the validity of their marriages, transsexuals are constrained by their sex as determined at birth, at least until the legislature explicitly instructs otherwise. _Kantaras v. Kantaras_, 2004 WL 1635003 (Fla. App. 2d Dist., July 23, 2004). Notwithstanding its decision that the Kantaras marriage was void ab initio, however, the Court of Appeals remanded the case to the trial court to determine what child custody arrangements would be in the best interest of the Kantaras children. Michael Kantaras was born Margo Kantaras in 1959. In 1986, Michael changed his name and a year later underwent sex reassignment, including hormonal treatment, a total hysterectomy and a double mastectomy. In 1988, Michael met Linda, and Linda learned of Michael's surgeries. Linda was pregnant by a former boyfriend at the time, and gave birth to a son in June 1989. Linda and Michael applied for a marriage license, and the two married in Florida in July 1989. In September 1989, Michael, as Linda's husband, applied to adopt Linda's son. In 1992, Linda gave birth to a daughter conceived through donor insemination using the sperm of Michael's brother. In 1998, Michael filed a petition for dissolution of the marriage, and sought custody of his children. Apparently, during the marriage, Linda became an ardent Christian, which contributed to the breakdown of the relationship. Linda counter-petitioned for an annulment on the ground that the marriage was void ab initio because it violated a Florida statute banning same-sex marriage. Attorneys from the Orlando-based Liberty Council, an anti-gay litigation group, represented Linda during the proceedings. After a lengthy trial in 2002, Clearwater Circuit Judge Gerard O'Brien issued an 809-page decision in February 2003, finding that Michael Kantaras was legally male at the time of the marriage and awarding Michael primary residential custody of the two children. In reaching this decision, Judge O'Brien relied on a 2001 family court decision from Australia, where the court noted the advances in medical knowledge and practices in reaching its conclusion that a female-to- male transsexual should be considered a man for purposes of marriage. The Florida Court of Appeals for the Second District reversed. Judge Fulmer, joined by Judges Covington and Wallace, found that the Florida marriage law, as amended in 1977, and Florida's Defense of Marriage Act, enacted in 1997, clearly demonstrated that Florida has expressly banned same-sex marriage. Turning then to the question of the proper classification of a transsexual person's legal sex for purposes of determining whether a union was an impermissible "same-sex" marriage, the Court surveyed cases from Ohio (_Ladrach_, decided in 1987, and _Nash_, decided in 2003), Kansas (_Gardiner_, decided in 2002), Texas (_Littleton_, decided in 1999), and New York (_Anonymous v. Anonymous_, decided in 1971, and _Frances B._, decided in 1974). All of these cases, in the court's view, supported its conclusion that, for purposes of marriage, one's sex at birth is immutable, and therefore cannot be changed from a legal standpoint through sex reassignment surgery or other mechanisms. The Court dismissed positive transsexual marriage precedent from New Jersey (_M.T._, decided in 1976), and rejected Judge O'Brien's reliance on precedent from Australia. Regardless that medical advances may "support a change in the meaning commonly attributed to the terms male and female," the court found that only the legislature could determine the important public policy question of whom (or, as a practical matter, whether) transsexuals may legally marry. Finding itself compelled to adhere to the "common meaning" of the terms of the Florida marriage statute, the Court ruled that the Kantaras marriage was a "same-sex" marriage, and therefore void ab initio. The Court remanded the case to the trial court, however, for resolution of issues relating to the Kantaras children, noting that the trial judge went "to great lengths" to determine their best interests, but had proceeded under the faulty assumption that the marriage was legally valid. National Center for Lesbian Rights attorney Karen Doering, who represented Michael Kantaras, described the ruling as "ridiculous." "Michael Kantaras is a man," Doering was reported as saying. "[He] has been a man since 1987 when he completed treatment. This court has just turned common sense on its head." In addition to the national ripple effects of this decision, this ruling will have additional negative effects for Michael, who has since remarried, as the Court of Appeals decision places the validity of his new marriage in jeopardy as well. NCLR has filed a variety of motions seeking reconsideration, en banc review, or possibly review in the Florida Supreme Court. _Sharon McGowan_ Military Sodomy Law Held Constitutional As Applied to Officer's Sex With Enlisted Man Under His Command Ruling on the appeal of a consensual sodomy conviction of an Air Force sergeant for performing oral sex on an enlisted man under his command, the U.S. Court of Appeals for the Armed Forces, the highest appeals court of the U.S. military, found that the conduct in question was not protected by the Constitution, so the conviction should be upheld. In its August 23 ruling in _United States v. Marcum_, 60 M.J. 198, the court found it unnecessary to address whether Article 125 of the Uniform Code of Military Justice, the sodomy law for the armed forces, is unconstitutional on its face, because of the particular facts in this case. The opinion for the court by Judge James E. Baker includes a lengthy discussion of the Supreme Court's 2003 decision in _Lawrence v. Texas_, in which that court struck down the Texas Homosexual Conduct Act as a violation of protected liberty under the Due Process Clause. In the course of that opinion, the Supreme Court placed the right of consenting same-sex couples to engage in sex within the same sphere of liberty that the Court had previously described as a "fundamental right" for married couples and unmarried heterosexual couples, leading some to argue that the Court had recognized a "fundamental right" to engage in gay sex. However, in its brief discussion of the failure of Texas to justify its criminal statute, the Supreme Court stated that the law was invalid because it "furthers no legitimate state interest," the kind of language the Court had previously used in cases concerning constitutional challenges to laws that did not abridge "fundamental rights," the so-called "rational basis" test. This has led some (including dissenting Supreme Court Justice Antonin Scalia) to argue that the Court did not recognize a "fundamental right" to engage in gay sex in the Lawrence case, but merely that the Texas law was not sustained by any legitimate state interest, resting solely on the impermissible ground of moral disapproval of gay people. This dispute about what _Lawrence_ means has becoming a recurring issue ever since the case was decided, with many lower courts taking the view that _Lawrence_ was a narrow ruling without extensive precedential weight (see the 11th Circuit cases, discussed above), while a few others, such as the Massachusetts Supreme Judicial Court in _Goodridge_, have considered it to be much more significant as a tool to combat anti-gay discrimination. In this case, Judge Baker found that it was unnecessary for the military appeals court to take sides in the debate over the eventual fate of Article 125 or the ultimate meaning of _Lawrence_, because the court found that the conduct of which Sergeant Eric Marcum was convicted, consensual sodomy with an enlisted man under his command, did not fall within the scope of the liberty interest that _Lawrence_ describes. In setting out the scope of its holding in _Lawrence_, the Supreme Court had stated that the case did _not_ involve a person "who might be coerced" or a "relationship where consent might not easily be refused." According to Baker, those descriptions could be applied to this case. According to the evidence as summarized by the court, Sergeant Marcum had been partying with several enlisted men under his command. As the partying wound down, he and Senior Airman Harrison ended up back at Marcum's apartment. Both had been drinking at the party. Harrison passed out on the couch wearing shorts and a t-shirt, and awoke to find Marcum performing oral sex on him. Harrison pulled up the covers and turned away from Marcum and the incident ended. Harrison and Marcum previously had a friendly relationship, which had not crossed this line, although they had at least once before found themselves in bed together in what sounds like cuddling on the verge of sexual conduct, which may have given Marcum the belief that Harrison would welcome his attentions in the future. Harrison later testified that he subsequently confronted Marcum and told him, "I just want to make it clear between us that this sort of thing doesn't ever happen again." Harrison testified that he hadn't stated any protest at the time of the incident because he did not know how Marcum would react, but that Marcum's actions made him scared, angry and uncomfortable. He did subsequently remain very friendly with Marcum, and in testimony described their relationship as "a father type son relationship or big brother, little brother type relationship." Judge Baker noted that the military has customarily sought to discourage undue familiarity in personal relationships between officers and enlisted men, especially the enlisted men over whom officers have direct command, and that there are guidelines and regulations specifying what would be considered "unprofessional conduct" for which discipline might be imposed, within which Marcum's relationship with Harrison clearly came. Thus, in weighing Marcum's argument that his conduct should be found to be constitutionally protected, Baker found it appropriate to consider such arguments in the military context, and in light of the command relationship between the two men. The opinion does not specify the events leading to Marcum's investigation and subsequent prosecution, which involved allegations of sexual activity and other misconduct involving several different enlisted men. Marcum was charged, among other things, with forcible sodomy against Harrison, but the military jury was evidently convinced that no force was used and that the circumstances might suggest a consensual relationship, so it convicted of the "lesser-included offense" of consensual sodomy. Accepting the verdict for what it is, Judge Baker found that this should be treated as a consensual case of sodomy between adults, but then found that the Supreme Court had left outside the sphere of protected liberty the right to coerce or to use a command position for sexual access, finding that the military would have rational reasons for not wanting sexual relationships taking place between officers and the men they command. Although the court upheld Marcum's conviction, however, it did find that the six-year prison sentence had to be reversed for reconsideration in a new trial because of something that Marcum's defense attorneys had done during the sentencing phase of the case. Marcum had prepared detailed notes about all his sexual encounters with enlisted men (which evidently involved half a dozen men) and had given them to his military defense attorneys to help prepare for the case. Those notes were covered by attorney-client privilege, and Marcum had never authorized that they be disclosed to the court. He was questioned during the court martial hearing about sexual encounters with other enlisted men, and testified about the subject, although not in quite the graphic detail reflected by his notes. Marcum was ultimately convicted on several counts. After he was convicted but before the sentencing hearing could be held, Marcum went AWOL (absent without leave). After the sentencing hearing was postponed several times, his defense attorneys agreed to go ahead with the hearing in his absence, and since he was not available to testify, submitted his notes to the court. The military prosecutor made much of the graphic detail in the notes, arguing for a tough sentence in part based on both the details and the non-repentant attitude projected by comments Marcum made in those notes about the men with whom he had sex. The appeals court found that Marcum had not authorized his lawyers to disclose these notes to the court as evidence, and that the result had prejudiced his sentencing hearing. One member of the appeals court disagreed with this part of the ruling, agreeing with the government's argument that by going AWOL, Marcum had given up his right to protest the use of those notes at the sentencing hearing. The bottom line of this case for future military prosecutions seems to be that the Court of Appeals for the Armed Forces has shown a considerable amount of sensitivity in its opinion for the difficult analytical issues raised by _Lawrence v. Texas_ in relation to the military sodomy law, and is probably hoping that Congress will get around to restructuring Article 125 in a way that clearly confines the law to avoid the constitutional issues. The government did raise the "don't ask, don't tell" policy as a ground for upholding Article 125 against constitutional challenge, but the court made short shrift of that argument, noting that the anti-gay personnel policy was adopted in 1993, at a time when _Bowers v. Hardwick_ was the law and Congress could presume that any gay conduct was subject to criminal prosecution. The court clearly recognizes that _Lawrence_ changes that part of the calculus, so its refusal to tackle the question of Article 125's constitutionality head-on does not necessarily state a position for the court on whether the "don't ask, don't tell" policy is constitutional, a question raised by other pending cases. Indeed, there is even some question, in light of the court's analysis, whether it would find Article 125 constitutional as applied to consensual sexual conduct between military members of equal rank or who were not in a command-subordinate relationship. A.S.L. Washington Superior Court Rules for Plaintiffs in Same-Sex Marriage Case King County, Washington, Superior Court Judge William L. Downing ruled on August 4 in _Anderson v. King County_, 2004 WL 1738447, that the Washington state marriage law, which specifies that a valid marriage may take place only between one man and one woman, violates the rights of same-sex couples under two provisions of the state's constitution, the Due Process clause and the Privileges and Immunities clause. Noting that his decision is merely a way-station for a case that will end up in the state's supreme court, Downing refrained from ordering any remedy. However, he clearly felt that the remedy of allowing same-sex couples to marry was preferable to the remedy of creating an alternative status, such as civil unions or domestic partnerships. "The Court is inclined to offer this perhaps gratuitous observation," he wrote. "If there is indeed any outside threat to the institution of marriage, it could well lie in legislative tinkering with the creation of alternative species of quasi- marriage. With the creation of 'civil unions,' 'domestic partnerships' or other variations on the theme including, worst of all, something like a 'five year plan with opt-out,' there could be a real danger. When cohabiting heterosexual couples can sign up for a renewable or revocable fixed term contract to define the terms of their state-recognized relationship, then marriage, as an institution, could be weakened. Better, perhaps (in terms of simplicity, fairness and social policy) to allow all who are up to taking on the heavy responsibilities of marriage, with its exclusivity and its 'till death do us part' commitment, to do so – not lightly, but advisedly." Downing was ruling on a test case brought by eight same-sex couples, represented jointly by Lambda Legal and the Northwest Women's Law Center. The lawsuit was filed in March in the midst of excitement generated by the issuance of marriage licenses in San Francisco and Multnomah County, Oregon, and in the wake of marriages being available to same-sex couples just across the border in British Columbia, Canada, where some Washington couples had been going over the past year to get married. At the oral argument the prior week on the motions for summary judgment filed by all parties in the case (which include King County, the state of Washington, and a group of anti-same-sex-marriage state legislators), Judge Downing, who had obviously been thinking hard about the resolution of this case since the complaint first landed in his court, told the parties he would be ruling quickly, and he was true to his word. Downing's lively and polished opinion shows every sign of having been worked over for many weeks, and it is undoubtedly one of the most stylishly written opinions to be issued by any court in a same-sex marriage case. One is tempted not to summarize but just to quote big chunks of it – but space does not permit. The full 26 page opinion will undoubtedly become quickly available on many websites, including those of Lambda Legal and Northwest Women's Law Center, as well as the many websites devoted to the same-sex marriage issue. The plaintiffs based their claimed marriage right on three provisions of the Washington Constitution. The Privileges and Immunities Clause, Article 1, Section 12, provides: "No law shall be passed granting to any citizen or class of citizens. . . privileges or immunities which upon the same terms shall not equally belong to all citizens." This is Washington's version of the federal Equal Protection clause. Article 1, Section 3, the state's Due Process Clause, provides: "No person shall be deprived of life, liberty, or property, without due process of law." As the U.S. Supreme Court has interpreted the federal due process clause to provide substantive protection for individual liberty, so have the Washington courts interpreted their state's Due Process clause. Finally, Article XXXI, Section 1, Washington's Equal Rights Amendment, adopted in 1972, provides: "Equality of rights and responsibility under the law shall not be denied or abridged on account of sex." Beginning in 1993 with _Baehr v. Lewin_, 852 P.2d 44 (Haw., May 5, 1993), the Hawaii Supreme Court's famous same-sex marriage decision, there has been a growing body of thought that bans on same-sex marriage are a form of sex discrimination, as in that case the Hawaii court found that the state's Equal Rights Amendment was potentially violated. Unfortunately for the parties in the Washington case, back in 1974 in _Singer v. Hara_, 522 P.2d 1187, one of the earliest same-sex marriage cases, the state's court of appeals had rejected the argument that Washington's then-recent adoption of an Equal Rights Amendment meant that same-sex couples were entitled to marry. Because the court of appeals is a higher court than the superior court, Downing felt bound by that decision, and so did not even bother engaging in an analysis of the sex discrimination theory. (Nothing else in that decision bound him, because, apart from the state ERA argument, Singer's lawsuit was premised on federal constitutional law.) However, Downing produced a very sophisticated and nuanced analysis of the due process issue. In a Due Process challenge, the decisive determination by the court may be the level of specificity at which it examines the right that is claimed to be abridged. Gay litigants argue that they are seeking to vindicate their right to marry, while opponents argue that the plaintiffs are seeking to establish a right of same-sex marriage, and that there is no historic basis for according respect to such a right. Gay litigants have been relying heavily on a series of United States Supreme Court decisions that hold that the right to marry is a "fundamental right" entitled to serious constitutional protection, but all of those decisions involved barriers to marriage being challenged by opposite-sex couples. In _Loving v. Virginia_, 388 U.S. 1 (1967), the Supreme Court struck down a Virginia law against interracial marriages. In _Zablocki v. Redhail_, 434 U.S. 374 (1978), it invalidated a law that denied marriage licenses to parents who had defaulted on child support obligations. In _Turner v. Safley_, 482 U.S. 78 (1987), it struck down a prison regulation barring inmates from marrying. In none of those cases did the Supreme Court specifically address the issue of same- sex marriage. But Judge Downing found that the Court's reasoning in each of those cases was based on a broad view of marriage as a fundamental right. The Court did not hold that interracial marriage, marriage by deadbeats, or marriage by prisoners is a fundamental right. Rather, it held that the ability to enter the institution of marriage is a fundamental right for a variety of reasons, all of which would apply, in some way, to same-sex couples, including procreation, the reason most often cited for denying same-sex couples the right to marry. Downing noted that many same-sex couples are raising children, and that many people who can't or don't intend to procreate are allowed to marry, so allowing same-sex marriage does not break the link between marriage and children. Thus, Downing found that the claim to same-sex marriage does involve a fundamental right, and that the state had failed to articulate a compelling reason to deny such a right. As to the privileges and immunities argument, he reported that the attorneys for the plaintiffs had counted over 300 rights and responsibilities in Washington State law that turned on marital status, so clearly there were many privileges and immunities (for example, immunity from having to testify against a spouse in a legal proceeding) that were not being made equally available to all of Washington's citizens, and there was no valid reason for maintaining the discrimination. Downing clearly and specifically rejected the arguments that majoritarian morality or tradition could serve as legitimate justifications for such discrimination. Perhaps most meaningfully, Downing saw marriage as something existing on many different levels, of which civil marriage is only one. Reflecting on the biographies and characteristics of the eight same-sex couples who brought the lawsuit, Downing wrote, "The plaintiffs' sworn statements reflect that, within each pair, they have already made a close personal commitment to be joined together in a bond that is intended to be permanent. Thus, in a basic or linguistic sense, they are in fact now married." Tracing the historical development of marriage, Downing found that the stage at which the state began to play a role was the most recent, having followed early stages of social custom and religious tradition, and that the state's role is specifically focused on what could be called "civil marriage," standing distinct and apart from religious marriage, and is concerned with the civil ramifications of marital status. Last year's U.S. Supreme Court decision in _Lawrence v. Texas_, 539 U.S. 558 (2003), played an important part in Downing's thinking about how to resolve this case, since in _Lawrence_ the Court had specifically listed marriage as one of those intensely personal decisions protected by the Due Process Clause, and had pointedly commented that gay people had the same protection for those sorts of decisions as anyone else. Without stooping to the obvious tactic of citing Justice Antonin Scalia's dissenting lament and alarm that the opinion was opening the way for same-sex marriage, Downing focused on the positive statements by Justices Anthony M. Kennedy and Sandra Day O'Connor (in her concurring opinion) about the limited role of moral judgments in questions of constitutional law and the expansive liberty rights that the concept of substantive due process protects. Downing's pragmatic conclusion suggests that he reasoned his way through the issues after much hard thought and weighing of options. "In the final analysis," he wrote, "the Court must return to the conflicting pole stars offered by the two sides. After long and careful reflection, it is this Court's firm conviction that the effect of today's ruling truly favors _both_ the interest of individual liberty and that of future generations. As to the conflicting legal principles at issue, it is true this Court's favoring the equal rights of all citizens (as have courts in Vermont, Hawaii, Oregon, Massachusetts, British Columbia and elsewhere before it and in other jurisdictions to come) may place the judicial branch of government briefly at odds with the legislative. That this may be so is not at all regrettable. Rather, it is fully consistent with sound constitutional principle, with the wise structural design of our government and with the realities of the dynamic of healthy social progress." A.S.L. Massachusetts Court Denies Relief Against Ban on Out-of-State Marriages A Massachusetts trial judge ruled on August 18 in _Cote-Whitacre v. Department of Public Health_, C.A. No. 04-2656-G (Mass. Super. Ct., Suffolk Co.), that the out-of-state same-sex couples who are suing to be able to marry in Massachusetts are unlikely to win their case, and thus not entitled to a preliminary injunction requiring the state to allow them to marry while their case is pending. In a companion ruling issued the same day in _Johnstone v. Reilly_, C.A. No. 04-2655-G (Mass. Super. Ct., Suffolk Co.), the judge, Superior Court Justice Carol S. Ball, found that a lawsuit by a group of Massachusetts town clerks, who had sued to be able to issue licenses to out-of-state couples, must be dismissed due to lack of jurisdiction by the court. The two lawsuits concern Sections 11 and 12 of Chapter 207 of the General Laws of Massachusetts, provisions adopted in 1913 to prevent the issuance of marriage licenses to out-of- state couples whose marriage would be considered "void" or "prohibited" in their home state. In last fall's _Goodridge_ decision, in which the Massachusetts Supreme Judicial Court found that same-sex couples have a right to marry under the state constitution, a concurring judge pointed out that there need be no interstate conflicts as a result of the decision, citing this 1913 provision. As the May 17 date for implementation drew near, Governor Mitt Romney seized upon the old statute, never previously enforced, as a way of limiting the number of same-sex couples who could marry. The state instructed clerks to enforce the statute, and issued a manual listing all impediments to marriage on the books in other states, including ages of consent, closeness or relationships, and same-sex couple status. When several town clerks defied the state and issued licenses, the Attorney General wrote to the town attorneys threatening enforcement action, and ultimately all the towns desisted from issuing licenses. The state refused to accept for filing the marriage certificates of out-of-state couples who had received licenses from "renegade" town clerks. The suit brought by Boston's Gay and Lesbian Advocates and Defenders on behalf of eight out- of-state couples, five of whom had received licenses and three of whom were denied licenses, argued that enforcement of the 1913 statute violates _Goodridge_ and discriminates in violation of the federal Privileges and Immunities Clause, which provides that no state may abridge the privileges and immunities of any citizen of the United States. In rejecting these arguments, Justice Ball emphasized that _Goodridge_ repeatedly refers to the rights of Massachusetts residents, and that the court said it was not changing the marriage statute in any way, just adopting a new common law definition of marriage. By implication, then, it was preserving all the other provisions of the marriage law, including the requirements of sections 11 and 12. Ball did acknowledge, however, that the state's application of these sections "violates the spirit of _Goodridge_," and found "troubling the timing of the resurrection of the implementation of section 11 immediately after" the _Goodridge_ decision was announced. Nonetheless, Ball found that, on its face, the statute did not distinguish between same-sex and opposite-sex couples, and that the state had been careful to instruct clerks to enforce the law in a non-discriminatory manner. Thus, any out-of-state couple applying to marry in Massachusetts, whose marriage would be prohibited or void in their home state, should be denied a license, not just same-sex couples, vitiating any argument that the facially-neutral statute was discriminatory as applied. Ball also noted that the _Goodridge_ court had not spoken of the right to marry as a "fundamental" right, but instead premised its ruling on the lack of any legitimate, rational reason by the state for opposing same-sex marriages, consequently, the Privileges and Immunities Clause would not be violated if the state had some legitimate reason for refusing licenses to out- of-state couples under these circumstances. Strict scrutiny might apply to the statute if the court could find that out-of-state couples were being denied a fundamental rights to marry, but Ball found no such denial here. Among other things, out-of-state couples who desire to marry under Massachusetts law are welcome to move into the state, and are not required to meet a durational residency requirement. Ball found that the state has a legitimate interest in not issuing marriage licenses that are purely symbolic, but only those that will carry real rights and governmental recognition, which would not be present for those couples who would return home to states where their marriages would not be honored. Turning to the clerks' lawsuit, Ball invoked a long line of Massachusetts cases recognizing a "prohibition on constitutional challenges by governmental entities to acts of their creator State." These cases are based on the view that "constitutional protections belong to persons," not to the government entities themselves. "The clerks, as elected or appointed officials rather than individuals, are not among those persons who possess the rights," and thus lack standing, either in person or in their official capacities, to sue to vindicate the rights of couples who might seek marriage licenses from them. Thus, the court lacked jurisdiction, and dismissed the case outright. Ball's decision in the couples case is a denial of preliminary relief, and does not preclude the plaintiffs from raising new arguments or attempting to appeal to a higher court. She made no finding on the issue of "irreparable injury," which is normally crucial to a decision whether to award preliminary relief, commenting that such a ruling was unnecessary when the plaintiffs were not likely to prevail on the merits of their claim. Speaking for GLAD in a press release reporting on the decision, staff attorney Michele Granda expressed hope for ultimate success in the case. "This case is still alive," she said. "The trial court will hear further argument on the merits and the case will be decided on appeal. We're confident of our ultimate success." A.S.L. Federal Bankruptcy Court Rejects Joint Filing From Lesbian Couple Wed in Canada In the first reported court decision on possible federal recognition of a Canadian same-sex marriage, U.S. Bankruptcy Judge Paul B. Snyder ruled on August 17 that principles of _comity_ governing recognition of foreign marriages would not require the court to allow a same-sex couple married in Canada to file a joint bankruptcy petition as spouses. _In re Lee Kandu and Ann C. Kandu_, 2004 WL 1854112 (U.S. Bankruptcy Court, W.D. Wash.). Finding that the federal Defense of Marriage (DOMA) requires dismissing the petition, Judge Snyder also rejected several arguments that DOMA's application in this case violates the federal constitutional rights of the applicants. The U.S. Bankruptcy Trustee, represented by the Department of Justice, actively opposed the Debtors, who filed pro se; the court's opinion does not specify whether the Debtors were represented by counsel in responding to the Order to Show Cause that the court had issued in response to the filing. Lee and Ann Kandu were married on August 11, 2003, in British Columbia, and then returned to their home in Washington State. Lee filed a voluntary bankruptcy petition on October 31, 2003, listing Ann as a joint debtor. The court responded to the joint filing by ordering a hearing on the question whether the petition should be rejected for "improper joint filing of unmarried individuals" on December 5, 2003. Unfortunately, Ann Kandu passed away on March 25, 2004, but that did not resolve the matter because Lee sought to have their assets and debts dealt with under the bankruptcy law as a lawfully married couple. The U.S. Bankruptcy Trustee argued that the Bankruptcy Code, which limits joint filings to legal spouses, must be interpreted in line with DOMA, and that public policy expressed by DOMA would justify the Bankruptcy Court in refusing to extend comity to the Canadian marriage. Judge Snyder agreed with the Trustee's arguments. The United States has no obligation under international law or treaties to recognize marriages performed in other countries, but U.S. courts customarily follow the general rule that a marriage lawfully performed in another country should be honored in the United States unless to do so would violate U.S. public policy. In this case, the court found, federal public policy was declared by Congress when it passed DOMA in 1996, and so general principles of comity would not be strong enough to compel recognition of this marriage. (Of course, if DOMA is unconstitutional, a public policy based on this objection fails.) The more significant arguments made by Lee Kandu concerned her claim that DOMA's federal definition of marriage is itself unconstitutional, and that her marriage should be recognized by the Bankruptcy Trustee as a matter of U.S. constitutional law. Kandu's first argument, based on the Tenth Amendment, was that by passing this provision in DOMA, Congress was violating the rights of the states to determine who can marry, and was legislating in a field beyond its normal competence. Prior to 1996, the federal government had never adopted a statutory definition of marriage, normally recognizing as married any couple who would be considered married under the law of their domicile state, and this reflected the understanding that family law in the U.S. is basically state law. But Judge Snyder found that this argument missed the point of the case, in that Kandu's specific claim is for federal recognition of her marriage. States are free to allow same-sex couples to marry, as Massachusetts has now done, and such marriages would be recognized for all purposes of state law. But Snyder found that the federal government has a legitimate interest in defining marriage for purposes of federal law, and this does not violate the allocation between federal and state responsibility under the Tenth Amendment, adopted as part of the Bill of Rights in 1791, which states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." While expressing some sympathy for Kandu's arguments, Snyder noted that the state of Washington has enacted its own DOMA, thus adopting a policy consistent with the federal definition and undermining the argument that DOMA should be set aside as a matter of state's rights in this particular case. Kandu also tried to argue that denying the joint filing was a "seizure" of her property in violation of the Fourth Amendment, but Judge Snyder could not make any sense of this claim, and all parties had agreed that it lacked any sound theoretical basis. The more important claim was made under the Fifth Amendment, also part of the Bill of Rights, which provides that no person shall "be deprived of life, liberty, or property, without due process of law." This language was the model for the Due Process Clause in the 14th Amendment, which was adopted after the Civil War to ensure that all persons in the United States, including the newly-freed African-American slaves, would be protected against adverse state treatment by federal guarantees for their rights. In cases decided during the 20th century, the Supreme Court ruled that the federal government's obligations to respect the individual liberty of U.S. residents under the Fifth Amendment are co-extensive with the obligations imposed on the states by the 14th Amendment, including that amendment's Equal Protection of the Laws requirement. In 1967, the Supreme Court ruled in _Loving v. Virginia_ that a state law forbidding interracial marriage violated both aspects of the 14th Amendment, Due Process Liberty and Equal Protection of the Laws. _Loving_ has been an important part of the litigation for same-sex marriage ever since, although the first court to find that it provided any support for same-sex marriage claims was the Hawaii Supreme Court in 1993, and then only with respect to the Equal Protection Claim. More recently, in the 2003 _Goodridge_ case, the Massachusetts Supreme Judicial Court used both the due process and equal protection rulings in _Loving_ to help bolster its determination that the Massachusetts constitution protects the right of same-sex couples to marry. But the only U.S. Supreme Court decision to present the issue of same-sex marriage directly, _Baker v. Nelson_ (1972) from the state of Minnesota, had produced an adverse ruling from the Supreme Court more than thirty years ago. When a same-sex couple lost their marriage litigation in the Minnesota Supreme Court, they filed an appeal to the U.S. Supreme Court. At that time, the U.S. Supreme Court did not have discretion on whether to take appeals from the state courts in cases where it was argued that a state law violated the federal constitution. However, the Court could, and frequently did, truncate the process in such cases by engaging in the practice of "summary affirmance," by which the court would affirm the state court's ruling without hearing oral arguments or accepting full briefing by the parties, based on its conclusion that the appeal did not present a "substantial federal constitutional question." This is what the Court did in _Baker v. Nelson_, thus establishing, or so it is argued, a federal constitutional precedent that same-sex couples are not entitled to marry. Of course, since _Baker_ was a lawsuit against a state government, it was brought under the 14th Amendment, and would not necessarily be a binding precedent on the question of federal constitutional rights to recognition of a lawful state or foreign marriage under the 5th Amendment, which presents a somewhat different constitutional question. The Supreme Court has said that the due process and equal protection rights under both amendments are co- extensive, but _Baker_ was decided more than thirty years ago, and gay rights litigation in the Supreme Court has produced significant decisions in the intervening years, especially the 1996 victory in _Romer v. Evans_ and the 2003 victory in _Lawrence v. Texas_, so Judge Snyder concluded that whatever weight _Baker_ might have had as a precedent, it was not binding for purposes of Kandu's lawsuit. Kandu argued that the federal constitution's 5th Amendment protects the right of same-sex couples to marry, and is violated by the federal marriage definition in DOMA. She relied heavily on the Supreme Court's decisions in _Romer_ and _Lawrence_, which appear to establish that gay people have full rights of U.S. citizenship, including constitutional protection for their liberty and equal protection of the laws. At this level of broad generality, the _Lawrence_ opinion in particular makes powerful statements that have not generally translated into strong precedents for gay litigants in other cases. Most notably, last winter the federal appeals court in Atlanta found _Lawrence_ to be essentially irrelevant to the question whether Florida could ban gay people from adopting children, and a few weeks ago the same court found that _Lawrence_ had not established a fundamental federal right to sexual privacy, in the Alabama sex toys case (see above). Several courts have rejected the argument that same-sex couples have a right to marry by virtue of the _Lawrence_ decision, noting that the Court specifically stated that it was not deciding the marriage question. (The Massachusetts decision of last year, which cited and quoted from _Lawrence_, was based solely on the state constitution, as was a state trial court decision in Washington State a few weeks ago.) Judge Snyder also found that _Lawrence_ did not provide a precedent for invalidating DOMA. Finding that the Supreme Court had specifically denied that it was deciding the marriage question, and that as a federal bankruptcy judge, he was not in a position to declare any new fundamental federal rights, he concluded that DOMA could survive a constitutional challenge so long as Congress had some rational basis for adopting a uniform federal definition of marriage in 1996. At that time, Congress was reacting to the Hawaii marriage case, and the trial that was scheduled to take place that fall. Members of Congress expressed fears that if same-sex couples could marry in Hawaii, other states and the federal government might be required to recognize those marriages, and that the meaning of marriage for purposes of federal law would vary from one state to another. Snyder found that it was rational for Congress to seek uniformity in eligibility for federal benefits, and further credited the argument that Congress could rationally desire to extend federal rights only to traditionally married couples, seen as the most desirable families to conceive and raise children. In considering Snyder's ruling, one must keep in mind that bankruptcy judges have even less authority as constitutional decision-makers than federal district judges. Their status derives from Article I of the Constitution, which gives Congress the power to establish a uniform bankruptcy law for the United States, and under which Congress decided to set up special courts to handle bankruptcy litigation. They are not "Article III judges," those judges whose general federal judicial authority derives from Article III, the part of the Constitution that establishes the federal judicial power and authorizes Congress to establish federal courts below the level of the Supreme Court. As judges of limited and specialized jurisdiction, they are unlikely to strike out in bold new directions, such as declaring federal laws unconstitutional. That is a role for the appellate courts, and it will be interesting to see whether Kandu's case is appealed within the federal court system. It would certainly present a sympathetic vehicle for bringing before the Supreme Court the question whether DOMA's federal marriage definition suffers from essentially the same flaw as Colorado's Amendment 2, declared invalid by the Court in 1996 in _Romer v. Evans_, although it seems unlikely that the Supreme Court would necessarily grant review to the first lower court case that rejects a constitutional challenge to DOMA. In _Romer_, the Supreme Court particularly criticized the way that Amendment 2 adopted a sweeping disqualification for gay people from all protection by the state. Similarly, DOMA sweepingly disqualifies same-sex couples who have been lawfully married by a state or a foreign country from any of the several thousand federal rights and protections accorded married couples, without any consideration by Congress of whether there is a good reason to deny same-sex couples recognition for the particular purposes of any one of those federal laws. As with Amendment 2, DOMA may best be explained by generalized animus against gay people, which the Court ruled in _Romer_ was not a legitimate basis for legislation. Kandu's case illustrates the point. Snyder's opinion, rehearsing the arguments that members of Congress made in support of DOMA, talks about preferred settings for raising children, an issue essentially irrelevant to whether it makes sense to allow same-sex couples to file joint bankruptcy petitions when they have intermingled finances and debts and joint property interests that need to be sorted out in a bankruptcy proceeding. Joint bankruptcy filings for spouses were created specifically for this purpose, and it makes little sense to require such couples to initiate separate proceedings, when their creditors have extended loans to them jointly. The cases would have to be dealt with together in any event, and matters would be complicated even further where a member of the couple has died and the representative of their estate would have to be drawn in. In other words, the government's position in this case, and DOMA's application to deny married same-sex couples access to federal bankruptcy law, is highly irrational. A.S.L. Missouri Appeals Court Questions Restrictions on Mother's Visitation Rights In _Gould v. Dickens_, 2004 WL 1725690 (Mo. App. E.D. Aug. 3), the Missouri Court of Appeals reversed a trial court decision which specified that a lesbian mother could not sleep with her partner during overnight visitation by her minor child. The appellate court ruled that the trial decision was improper because there was no evidence produced at trial demonstrating that this would be in the best interest of the child, and remanded the matter for a new trial. Because it was unclear the extent to which the mother's relationship and cohabitation with her partner influenced the trial court, the matter of custody was also remanded for a new trial. It must be noted that the court always referred to the mother's "partner" by her rather gender- vague name (Ty Ruth) or as the mother's "partner," but never by a gender specific pronoun. [Newspaper reports about the case made clear that Gould and Ruth are a same-sex couple.] The child was born in December 1997 to unwed parents. The child became the subject of heated disputes concerning custody and support, which also involved (unsubstantiated) accusations by both parties of sexual abuse of the child by the other party. Custody of the child changed back and forth. In 2001, the father filed a Declaration of Paternity and sought custody of the child, requesting that the mother only be allowed supervised visitation. The mother filed counterclaims seeking custody and support. A guardian ad litem was appointed. After investigation by the local county's Division of Family Services and a court-appointed psychologist, primary custody was awarded to the father, with allowances for visitation to the mother, provided "that [Mother's] right to overnight visitation shall be subject to the condition that Ty Ruth not occupy a bedroom with [Mother] under the same roof with the minor child." The appellate court cited this as the error below, for there was nothing in the record to support this restriction. "Best interest of the child" is the guiding light for such a determination, but there was nothing at all in the trial record to support it. This decision is noteworthy for what it says, and for what it does not say. A lot of time and space is devoted to the state of the law in Missouri concerning what must be considered in a child custody case, the current case law, and the factual background of the case. Nothing at all is said of the relationship of the mother and her "partner." Given the current political climate in Missouri, where voters recently overwhelmingly approved a state constitutional amendment banning same- sex marriages, and the outcome of the appeal, this is, perhaps, no surprise. _Steven Kolodny_ Another Trial Judge Finds New York Marriage Law Unconstitutional In a ringing endorsement of marriage equality for same-sex couples, on July 13, 2004, Judge Judith M. Reichler of the Justice Court for the Town of New Paltz, New York, ruled that New York's criminal statute prohibiting individuals from solemnizing marriages without having been presented with a marriage license, as applied to marriages performed for same-sex couples, violates the Equal Protection Clause of the U.S. Constitution. Judge Reichler's decision, in _People v. Greenleaf_, 2004 WL 1717378, was one of a pair of pro-same-sex marriage decisions in New York to be issued in the wake of New Paltz Mayor Jason West's widely-publicized decision earlier this year to begin solemnizing marriages for same-sex couples. That _Greenleaf_ was decided on federal, rather than state, constitutional grounds makes the prospect of a challenge to bans on same-sex marriage wending its way to the U.S. Supreme Court in the near term appear likelier than ever. _Greenleaf_ arose from the criminal prosecution of Katherine Greenleaf and Dawn Sangrey, two ordained Unitarian Universalist ministers, for performing marriage ceremonies for 13 same-sex couples who did not have marriage licenses. Greenleaf and Sangrey were charged with violating section 17 of New York's Domestic Relations Law (DRL), which provides that a person who performs a marriage without being presented with a marriage license is guilty of a misdemeanor. Although DRL Section 17 makes no distinction between same-sex and opposite-sex couples, the New Paltz town clerk announced that New York law only permits marriages between a man and a woman, and on this basis denied marriage licenses to the couples married by Greenleaf and Sangrey. Initially, the prosecution argued that the constitutionality of New York's ban on same-sex marriage was not raised, and that the only issue properly before Judge Reichler was whether the defendants had violated the plain language of the criminal statute at issue. The court rejected this position, however, agreeing with the defendants that a determination of the rights of the same-sex couples was necessary for Greenleaf's and Sangrey's defense to the criminal charges against them. As Judge Reichler explained, "If it is unconstitutional to prohibit same-sex couples from obtaining marriage licenses, it is unconstitutional to charge defendants with a crime for marrying same-sex couples who are unable to obtain marriage licenses." Consistent with the U.S. Supreme Court's 1996 landmark gay rights decision in _Romer v. Evans_, Judge Reichler subjected Section 17 to the "rational basis" test, the most deferential review for constitutionality, rather than to the stricter forms of scrutiny applied to statutes that discriminate on the basis of gender or race. Under rationality review, in order for a statute to withstand constitutional challenge, the state need only demonstrate the existence of a rational relationship between the challenged statute and the "legitimate" societal interest it purports to promote. Under even this most deferential analysis, however, the court found Section 17 to be constitutionally infirm. The prosecution advanced two state interests for limiting marriage to opposite-sex couples: tradition and procreation. (Interestingly, New York Attorney General Eliot Spitzer, although afforded an opportunity to do so, did not offer any additional justification for the state's prohibition of same-sex marriage, nor did he otherwise intervene in the proceedings.) With respect to New York's purported interest in "tradition," the prosecution averred that "[t]here is a long tradition of political, cultural, religious, and legal consensus that marriage is understood as the union of male and female." With respect to the State's asserted interest in procreation, the prosecution asserted that statutes prohibiting same-sex marriages encourage "procreation and child-rearing within a marital relationship." Judge Reichler roundly rejected the prosecution's tradition arguments, expressly finding that <160>'tradition' is not a legitimate state interest." "Tradition," the court wrote, "does not justify unconstitutional treatment. Slavery was also a traditional institution." First, citing to Justice O'Connor's concurring opinion in _Troxel v. Granville_ in 2000, the court observed that "[t]he definition of 'family' has changed so much over the years that it is difficult to speak of an average American family." The court noted, in particular, that the traditional definition of marriage in the U.S. has undergone many changes over time, especially as gender roles have expanded. For example, the court noted, in the not-so-distant past married women were denied the right to own property, and, of course, miscegenation laws provided stiff criminal penalties for persons who married "outside their race." Even as late as 1984, the traditional definition of marriage in New York included the right of a husband to be free of criminal charges for raping his wife. Responding to the prosecution's observation that New York courts have never gone so far as to include same-sex couples within the definition of marriage, Judge Reichler noted that "[t]he fact alone that . . . discrimination has been sanctioned by the state for many years does not justify it." The court also dismissed the prosecution's suggestion that the State has a legitimate interest in protecting and extending religious traditions which discriminate against same-sex couples. Although Judge Reichler did not explicitly discuss First Amendment principles here, she implicitly invoked the First Amendment's prohibition against the establishment of religion, observing that, "whatever meaning and sanctity may attach to a religious marriage ceremony, . . ._marriage is a civil contract, and state marriage laws are entirely civil in nature_. Although the authority to officiate at civil marriage ceremonies has been extended to members of the clergy . . . , this does not alter the fact that _state-sanctioned marriage is a civil event, not a religious one_." (Emphasis added.) Thus, whatever traditional religious prohibitions of same-sex marriage may exist, they do not justify New York's ban on civil marriages for same-sex couples. For the same reason, the court rejected the defendant's claims that their First Amendment's free religious exercise rights had been infringed by the State's preventing them from officiating at same-sex marriages. Judge Reichler explained that when clergy solemnize marriages, they are acting in the state capacity of officiating at civil ceremonies. Thus, the State does not violate the right to free exercise of religion by imposing valid restrictions on the ability to officiate in this secular capacity. Turning to the second interest cited by the prosecution in support of New York's prohibition of same-sex marriage, the court found that citing "procreation" as a basis for denying marriage to same-sex couples displayed "an anti-gay bias, rather than a real desire to provide a favorable environment for procreation and child-rearing. If family and children were truly the priority, the state would take all possible steps to protect them." Judge Reichler pointed out that the State's arguments based on its interest in procreation within the context of marriage are directly undermined by the fact that married people are not required to have children, or even to engage in sexual relations. "No inquiry is ever made into the sexual activities or sexual preferences of a prospective opposite-sex couple before a marriage license is issued. In fact, all sorts of people can marry and have children: convicted murderers, child abusers, pedophiles, racketeers, and drug pushers." The court noted, moreover, that whereas many opposite-sex couples do not procreate, many same-sex couples do raise children adopted or conceived by one of the partners. "Excluding same-sex couples from civil marriage," the court concluded, "makes these children less, not more, secure." The court proceeded to discuss in some detail the myriad economic and legal benefits conferred upon opposite-sex married couples. The court observed that "[r]egardless of the relationship a married couple has, legal privileges are granted to improve their economic, emotional, and physical health simply because of their marital status. There can be no constitutional rationale for denying same-sex couples the right to receive the benefits that are so lavishly bestowed on mixed-sex couples." The marriage benefits discussed by the court occur in all of the following areas: (1) Social Security; (2) programs to alleviate poverty, such as housing, food stamps, and public assistance; (3) veterans' and military programs; (4) taxation; (5) employment; (6) immigration; (7) criminal and family violence laws; (8) loans and credit; and (9) education. While the court acknowledged that there are many ways, other than the extension of marriage rights to same-sex couples, that these inequities between same-and opposite-sex couples could be remedied, "it is doubtful . . . that they would completely address the complicated reasons individuals have for wanting to join in marriage." Having concluded that "tradition" is not a legitimate state interest, and that prohibiting same-sex couples from marrying is not rationally related to furthering the state's legitimate interest in providing a favorable environment for procreation and child-rearing, Judge Reichler declared DRL Section 17 to be unconstitutional as applied against Greenleaf and Sangrey and dismissed the criminal charges against the two defendants. In a coda to her opinion, Judge Reichler refers approvingly to Justice Scalia's warning, in his bitter dissent to the landmark 2003 gay rights decision in _Lawrence v. Texas_, that _Lawrence_ had effectively deprived states of any justification for denying the benefits of marriage to same-sex couples. Once _Greenleaf_ and/or another same-sex marriage challenge does finally make its way the Supreme Court, LGBT rights supporters can only hope that Justice Scalia is proven prescient. _Allen Drexel_ Same-Sex Marriage & Partnership Legislative Notes _Louisiana_ - The Louisiana legislature placed a measure on the ballot for the September 18 primary elections that would add a provision to the state constitution, as follows: "Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman." In Louisiana primaries, any candidate who wins a majority of the votes cast in their race is declared the winner, with no need to participate in the general election. Several lawsuits were filed attempting to block a vote on this amendment, raising a host of arguments, including that it violates the requirement that a ballot proposal only present one issue for decision, that it violates the federal constitution's provision barring states from impairing the obligation of contracts by potentially rendering unenforceable living-together agreements and other contracts between unmarried couples, and that it violates the state constitutional requirement that proposed amendments be voted on at state-wide elections where they are not the only issue on the ballot. During the September 18 primary, there are several election districts without any contested races, with the result that the marriage amendment would be on the only question on the ballot. Three lawsuits were filed, two in New Orleans and one in Baton Rouge, attempting to stop the amendment. The reactions of the lower courts were generally negative towards the lawsuits, although there seemed a possibility that one judge might attempt to block the September 18 vote, but during the last week of August the intermediate appellate courts rejected the possibility, and late on September 1, the Lousiana Supreme Court refused to intervene in the controversy, agreeing with the lower courts that the lawsuits were "premature." If the amendment is approved, the same arguments could be raised in a lawsuit seeking to prevent it from going into effect. (Reporting based on Louisiana and Associated Press newspaper stories published during August and on September 1-3.) _Missouri_ - On August 3, more than 70 percent of those who voted in the Missouri primary approved adding the following section to the state constitution: "Section 33. That to be valid and recognized in this state, a marriage shall exist only between a man and a woman." The amendment had been proposed by the legislature with bipartisan support, but there was a split along party lines over when the vote should take place, with Republicans favoring the November 2 general election date, when they thought it would enhance turnout for the GOP ticket, and the Democrats favoring the August 3 primary date. Ultimately the Democrats prevailed, with the assistance of the state's Supreme Court. Both members of the Democratic national ticket, Senators Kerry and Edwards, stated that they supported the amendment and would have voted for it. The Kerry/Edwards ticket has taken the position that marriage should be reserved for gender- discordant couples, but that this decision should be made on the state rather than federal level, so they oppose the proposed Federal Marriage Amendment. Sen. Kerry has state his support for the amendment pending in Massachusetts, which may be on the ballot in November 2006 depending on legislative developments; that proposal would specifically authorize the creation of civil unions for same-sex partners. Kerry has announced support for having the federal government treat civil union partners as spouses for purposes of federal law. _Other state constitutional amendments_ - In addition to the September 18 vote in Louisiana, state constitutional amendments banning same-sex marriage, and in many cases going further to ban "identical or substantially similar" legal status for unmarried or same-sex couples, may be on the ballot on November 2 in as many as eleven states, including some crucial "swing states" in terms of the presidential campaign and the fierce struggle over control of the U.S. Senate. In Mississippi, Montana and Oregon, the proposed amendments merely address the definition of marriage for the state (and implicitly for recognition of out-of-state marriages), restricting it to gender discordant couples. All of the others – Arkansas, Georgia, Kentucky, Michigan, North Dakota, Ohio, Oklahoma, and Utah – additionally forbid the creation of any alternative legal structure for unmarried couples that would provide equivalent rights and responsibilities to marriage. In some of these states – Kentucky, Ohio, and Oklahoma - constitutional provisions limit proposed amendments that are submitted to the voters to "single subjects," to avoid requiring voters to approve something they don't want in order to get something they do want. The question, as in Louisiana, and possibly in these states, is whether courts would consider these proposals to present two separate questions. Case law construing these amendments tends to be thin and not particularly helpful, but courts have tended in these cases to take a broad view of what comes within the scope of a "single subject," so long as there is a logical relationship between the various provisions of a proposal. * * * At the end of August, there were doubts about whether some of the measures would make it to the ballot. In Michigan, the Board of State Canvassers, a strictly bipartisan agency, voted 2-2, failing to summon a majority to certify the measure for the ballot, even though it appeared to have more than enough petition signatures to qualify. Citizens for the Protection of Marriage, a group organized to petition for the measure, has filed an action in the state court of appeals seeking an order against the board to get the measure certified. _Associated Press_, Aug. 27. In Oklahoma, the ACLU filed suit, asking the state supreme court to keep the proposal off the ballot on numerous grounds: vagueness, violation of civil rights, and violation of the single subject rule. _Associated Press_, Aug. 27. In Arkansas, the Supreme Court set oral arguments for September 23 in an action seeking to block a vote on the proposed constitutional amendment, again brought by the ACLU, relying mainly on a vagueness argument. _Arkansas News Bureau_, Aug. 28. In Ohio, The Secretary of State's Office reported on Aug. 30 that the percentage of petition signatures that had been invalidated so far was high enough that it was likely that the petitioners would fall short. The matter was likely to be resolved in the state supreme court. _Cincinnati Enquirer_, Aug. 31. In Georgia, various groups were expected to join with the ACLU in challenging the proposed measure. _Southern Voice_, Aug. 13. _Florida - Miami Beach_ - On July 28, Miami Beach commissioners voted to establish a domestic partnership registry that would give unmarried couples a range of legal rights within the city limits, including rights to hospital visitation, participation in health care decisions, and emergency medical notification, as well as funeral decision rights and rights to participate in educational decisions with a partner in the context of the city's public school system. It was claimed that this was broader than the partnership registries that a few other Florida communities have adopted. The measure also provides that persons registered as partners in other jurisdictions will be recognized as such while visiting Miami Beach. _Miami Herald_, July 29. _New York_ - By overwhelming margins, both houses of the New York legislature approved A.B. No. 9872, a measure devised by openly-lesbian Assemblymember Deborah Glick to guarantee that domestic partners will not encounter discrimination in visitation rights with partners who are in health care facilities. The Assembly vote on June 3 was 141-1, the Senate vote on August 12, where the measure was championed by Senator Nicholas Spano, a Republican from Yonkers, was 59-0. At press time, we did not know whether Governor George Pataki would sign the measure, allow it to become law without his signature, or veto it. The near-universal support would suggest that the governor would sign, but his national political aspirations in the Republican Party might point in a different direction. The bill provides three alternative definitions of domestic partners: (1) registered partners under any government scheme; (2) formally recognized as a beneficiary or covered person under the others person's employment benefits or health insurance; OR (3) dependent or mutually interdependent on the other person as evidenced by totality of the circumstances, including shared household expenses. Otherwise, the definition tracks that of a New York City domestic partnership ordinance in terms of its qualifications. _Gay City News_, Aug. 19, 2004; 2003 NY A.B. 9872. _North Carolina_ - The Orange County Board of Commissioners has decided to make health insurance coverage available to domestic partners of county employees. Although the Commissioners have not reached a final definition of who will be qualified, they intend to make the benefit available as of January 1, according to an Aug. 25 report in the _Daily Tar Heel_, and it will include both same-sex and opposite-sex partners. This would make Orange the only county in North Carolina to provide such benefits, although two cities, Chapel Hill and Carrboro, have been offering such benefits for many years. A.S.L. 11th Circuit Splits Evenly, Denying Rehearing of Florida Adoption Suit The U.S. Court of Appeals for the 11th Circuit will not rehear en banc an appeal challenging the constitutionality of Florida's statute barring sexually-active lesbians and gay men from adopting children. _Lofton v. Sec'y of the Dep't of Children and Family Servs._, 377 F.3d 1275 (July 21). The court's 6-6 vote on plaintiffs' petition for rehearing was one vote shy of the simple majority required for rehearing to be granted. The split vote leaves in place a January ruling (reported at 358 F.3d 804 and analyzed in the February 2004 issue of the _Law Notes_) in which a three-judge appellate panel concluded, 2-1, that the statute did not violate the Equal Protection or Due Process Clauses of the 14th Amendment. Two of the twelve judges – one in favor of rehearing and one opposed – filed lengthy and spirited decisions, sparring over constitutional issues affecting lesbians and gay men that remain unsettled more than a year after the United States Supreme Court's decision in _Lawrence v. Texas_, 539 U.S. 558 (2003), overruled _Bowers v. Hardwick_ and struck down the nation's sodomy laws. The lead plaintiff in the case, Steven Lofton, is a registered pediatric nurse who has raised from infancy three HIV+ foster children. A private agency placed the children with Lofton, who has extensive experience treating patients living with HIV. One of the three children, referred to in the case as "John Doe," seroconverted at eighteen months and has tested negative for HIV ever since. Because of his change in HIV status, Doe became eligible for adoption. When Loften filed an adoption petition in September 1994, he refused to answer questions about his "sexual preference" and did not disclose that he lived with his male partner. Ultimately, the Florida Department of Children and Families denied Lofton's adoption petition, on the basis of Florida's statute that prohibits a person from adopting a child "if that person is a homosexual," a term limited by Florida courts to "applicants who are known to engage in current, voluntary homosexual activity." The State offered Lofton to become Doe's legal guardian, which would have allowed Doe to be removed from the foster care system and the supervision of the Department. Lofton chose not to accept this "compromise," however, unless it was an interim step towards full adoption. The State said it could not accommodate Lofton's condition in light of the anti-gay adoption statute. A three-judge panel of the 11th Circuit affirmed a judgment from the U.S. District Court for the Southern District of Florida dismissing the plaintiffs' claim that the statute was unconstitutional. In her dissent from the denial of rehearing en banc, Circuit Judge Rosemary Barkett, a Clinton appointee who was formerly chief justice of Florida's supreme court, traced in detail the legislative history of the Florida statute, offering a compelling account of the anti-gay bias that led to its passage. "The Florida statute was enacted after an organized and relentless anti- homosexual campaign led by Anita Bryant, a pop singer who sought to repeal a January 1977 ordinance of the Dade County Metropolitan Commission prohibiting discrimination against homosexuals in the areas of housing, public accommodations, and employment," Judge Burkett noted. She quoted portions of the legislative record in which senators expressly explained the "proposed ban on homosexual adoption would not have arisen without the ruckus over the Dade County anti-discrimination ordinance." Most poignantly, Barkett pointed out that as the state legislature gave its final approval of the anti-gay adoption measure, one of the bill's sponsors stated the legislation was a message to homosexuals that "we're really tired of you. We wish that you would go back into the closet." On the basis of this legislative history, and Equal Protection precedent from _Romer v. Evans_, 517 U.S. 620 (1996), _City of Cleburne v. Cleburne Living Ctr._, 473 U.S. 432 (1985), _United States Dep't of Agric. v. Moreno_, 413 U.S. 528 (1973), and _Eisenstadt v. Baird_, 405 U.S. 438 (1972) – cases in which Judge Barkett explained the Supreme Court had appeared to apply a more searching form of "rational basis" review to strike down classifications based on animus – Barkett concluded that animus towards sexually active lesbians and gay men was not a "legitimate state interest" that could overcome constitutional challenge. She explained: "In all four cases, the Court concluded that the asserted justifications were not rationally related to the classification. Thus, the Court inferred that animus was the motivation behind the legislation and established that such a motivation could not constitute a legitimate state interest. . . The ban on homosexual adoption at issue here violated the Equal Protection Clause of the Fourteenth Amendment because Florida's proffered rational basis is expressly refused by the state's own law and practice and because a class consisting of all homosexual citizens was targeted solely on the basis of impermissible animus." Not surprisingly, Circuit Judge Stanley F. Birch – an appointee of George H. W. Bush who authored the underlying panel decision and penned an opinion specially concurring in the denial of rehearing en banc – sidestepped the legislative history entirely. According to Birch, the actual motivation underlying a statute's passage is irrelevant to federal Equal Protection analysis, as long as a court can articulate after-the-fact any rational, non-discriminatory purpose for the statute. As Judge Birch explained candidly: "While a principled argument can be made on this equal protection animus/analysis that might result in invalidation of this statute, the Lofton panel was not willing to embrace that more adventurous leap and preferred to stay with a more traditional analytical approach that ignored the actual legislative history and instead searched for any rational basis. The real point of disagreement between the Lofton panel and the dissent is whether rational- basis review should always uphold a law as long as there exists some 'conceivable' rational basis – or whether there are certain instances that call for a 'more searching' form of rational-basis review that examines the actual motivations underlying the law." Even if one were to accept this difference in philosophy, the "conceivable rational basis" that Judge Birch and the underlying panel offered was far from satisfying to Judge Barkett and those who joined in her opinion. According to Judge Birch, the panel based its ruling on its observation that "[t]he mainstream of contemporary American family life consists of heterosexual individuals." He went on to ask: "Can it be seriously contended that an arguably rational basis does not exist for placing adoptive children in the mainstream of American family life? And that to do so is irrational? I think not? It furthers the legitimate interest the state has in encouraging what it deems to be the optimal family structure, a home that has both a mother and a father, or at least one parent in the heterosexual mainstream of American family life." Judge Barkett attacked the validity of what she called a "contrived hypothetical offering," pointing out numerous ways in which it cut against actual practice in Florida family courts. For example, Barkett explained that the proffered rationale does not account for the "non-practicing" homosexuals who may lawfully adopt under current interpretations of Florida's adoption ban, or the fact that Florida courts have ruled custody determinations cannot be based on a parent's sexual orientation. More fundamentally, Judge Barkett explained that "mainstreaming," at least for purposes of parenting, is not a per se legitimate state goal: "Immigrant parents help their children adjust to a word and culture they have not known. It cannot be suggested that such individuals are unfit to parent any more than it could be suggested that a mother is unfit to parent a son or that a white person is unfit to parent an African-American child? Ultimately, the breadth of the categorical adoption bad 'outruns and belies' the state's asserted justifications. Child abusers, terrorists, drug dealers, rapists and murderers are not categorically barred by the adoption statute from consideration for adoptive parenthood in Florida? The Equal Protection Clause does not permit a classification for its own sake." The Due Process analysis of Judge Barkett and the underlying panel differed most concretely in the way each interpreted the Supreme Court's decision in _Lawrence v. Texas_. As Judge Birch acknowledged, the Lofton panel gave _Lawrence_ the most narrow application possible, concluding its holding was limited to finding that "substantive due process does not permit a state to impose a criminal prohibition on private consensual homosexual conduct? To read Lawrence's holding any broader would be to assume that the Court departed from the established principle of minimalism in deciding constitutional matters." Based on this reading of _Lawrence_, Judge Birch explained that he and the panel felt "constrained" to leave it to the Supreme Court to clarify any gray areas it had "left for another day," including the question of whether the high court believed that there is a substantive due process right to sexual intimacy. Judge Birch went on to note that "even if Lawrence's dicta did acknowledge a constitutional liberty interest in private sexual intimacy, this liberty interest does not rise to the level of a fundamental right nor does it necessarily trigger strict scrutiny." In the _Lofton_ panel's estimation, the hypothetical efforts to achieve "mainstreaming" and "optimal family structures" were sufficient to overcome any Due Process challenge. Judge Barkett chided Judge Birch and the _Lofton_ panel for attempting to "artificially downgrade" the _Lawrence_ decision to a rational-basis holding. She explained: "Lawrence held that consenting adults have a right under the Due Process Clause to engage in private sexual conduct, including homosexual conduct. Because Florida's law punishes the exercise of this right by denying all active homosexuals the ability to be considered as adoptive parents, we are required to subject Florida's law to heightened scrutiny – not the cursory, attempted rational-basis analysis the panel employs." Barkett rejected the _Lofton_ panel's attempts to avoid applying heightened scrutiny to Florida's adoption statute on grounds that adoption is a "privilege" and not a "right," and the fact that the anti-gay adoption ban is a civil law rather than a criminal law. Judge Barkett pointed out that the Supreme Court had abandoned these types of distinctions decades ago. In the final analysis, Judge Barkett concluded that whatever level of scrutiny one applied to the Florida statute, it violated the Due Process Clause because it requires lesbians and gay men to "forego the consideration given to all others to be adoptive parents in order to engage in conduct protected by the Fourteenth Amendment." In a separate, one paragraph dissenting opinion, Circuit Judge Marcus, joined by two other judges, explained that rehearing en banc should have been granted because of a "serious and substantial question" as to whether Florida can constitutionally bar sexually active lesbians and gay men from adopting while simultaneously allowing them to be permanent foster parents and not barring other groups, such as convicted felons and drug addicts, from adopting. "There is undeniably an important question whether this statutory scheme meets a minimal standard of rational basis review," Judge Marcus stated. The plaintiffs were represented by Randall C. Marshall of the American Civil Liberties Union of Florida; Leslie Cooper of the American Civil Liberties Union of New York. _Ian Chesir-Teran_ [Editor's Note: The tie-vote included one vote cast against rehearing by Judge William H. Pryor, recently given a recess appointment to the 11th Circuit when the Senate was unable to achieve cloture and bring his nomination to a vote, due to determined opposition by the Democratic members due to Judge Pryor's record as Attorney General of Alabama. Senator Edward Kennedy has filed a lawsuit challenging the recess appointment, which will expire at the end of the current session of Congress if Pryor is not confirmed by the Senate, on the ground that the Senate was not in recess and had merely adjourned for a holiday break when President Bush made the appointment. Had the vote on rehearing been confined to active judges of the 11th Circuit whose appointments were duly confirmed by the Senate, the vote would have been to rehear the case en banc and, perhaps, to reverse the District Court. A.S.L.] No Constitutional Right to Sexual Privacy in Eleventh Circuit, Despite Lawrence; Alabama Statute Outlawing Sale of Sex Toys Upheld The Eleventh Circuit Court of Appeals, declining to find a fundamental right to sexual privacy under the Constitution, has ruled that there is no fundamental right to buy or sell sex toys, and that a state legislature may outlaw such transactions in the interest of public morality. (In _dicta_, the court admits that there is a right to possess such devices.) The panel split 2-1, with Judges Stanley F. Birch (appointed by President Bush I) and James C. Hill (appointed by President Ford) writing the majority opinion, and Judge Rosemary Barkett (appointed by President Clinton) writing a piercing dissent. _Williams v. Attorney General of Alabama_, 2004 WL 1681149 (11th Cir. July 28, 2004). The underlying facts were related in _Law Notes_ of November 2002 (by Fred A. Bernstein): In 1998, the Alabama legislature made it a crime to sell "any device designed or marketed as useful primarily for the stimulation of human genital organs." A group of women who used such devices, and two Alabama businesspeople who sold them, brought constitutional challenges under the due process clause. In 1999, the district court judge found that the statute had no rational basis and enjoined its enforcement. _Williams v. Pryor_, 41 F. Supp. 2d 1257 (N.D. Ala. 1999) (_Williams I_). However, the district court also held that there was no fundamental right to use sexual devices and "declined the ACLU's invitation" to create such a right. [Note that throughout these decisions, the courts refer to the plaintiffs as "the ACLU," as though that organization did not merely represent the plaintiffs, but _was_ the plaintiff in fact. Hence, the court casts the ACLU rather than individual plaintiffs as the opponent to the Alabama legislature in challenging the law.] On appeal, the Eleventh Circuit reversed in part and affirmed in part. _Williams v. Pryor_, 240 F.3d 944 (11th Cir. 2001) (_Williams II_). The appellate court reversed the district court's conclusion that the statute lacked a rational basis, and held that the promotion and preservation of public morality provides a rational basis. The court affirmed the district court's rejection of the "ACLU's" facial fundamental-rights challenge to the statute, and remanded the action to the district court for further consideration of an as-applied fundamental-rights challenge. (The court stated that a facial fundamental-rights challenge, to be successful, must establish that no set of circumstances exists under which the statute would be valid. Unless the statute is unconstitutional in all of its applications, an "as-applied" challenge is appropriate to attack its constitutionality.) On remand, the district court again struck down the statute. _Williams v. Pryor_, 220 F. Supp. 2d 1257 (N.D. Ala. 2002) (_Williams III_). The court held that the statute unconstitutionally burdened the right to use sexual devices within private adult, consensual sexual relationships. The court framed that right as part of a fundamental right to sexual privacy. In coming to this conclusion, the district court traced the history of mechanical genital stimulation in America, studding the opinion with references to Foucault, sexual historian Rachel Maines, the _Sharper Image_ catalog, and former Senator Bob Dole's _Viagra_ commercials (according to Mr. Bernstein's summary). Finding that the right to use sexual devices – at least by heterosexuals – is "deeply-rooted" in U.S. history, the court struck down Alabama's statute and enjoined its enforcement. It its July 2004 decision (_Williams IV_), discussed herein, the Eleventh Circuit reversed the district court, and declared that there is no fundamental constitutional right to sexual privacy. It interpreted _Lawrence v. Texas_, 539 U.S. 558 (2003), as having invalidated the Texas sodomy statute because it lacked a rational basis, rather than because it violatted a fundamental right to sexual privacy. The majority determined that any such fundamental privacy right discovered by the _Lawrence_ court is inferred from dicta, and not contained in the reasoning or holdings of the opinion, which failed to make a fundamental rights inquiry as required by the precedent of _Washington v. Glucksberg_, 521 U.S. 702 (1997), which declined to find a fundamental right to doctor-assisted suicide. Because it considered _Lawrence_ to be essentially irrelevant to the case, the court, in a _de novo_ review (permitted because the ruling below was on summary judgment), reframed the issue as whether the right asserted "by the ACLU" falls within the parameters of any presently recognized fundamental right, or whether it instead requires the court to recognize a thus far unarticulated fundamental right. The Supreme Court "has never indicated that the mere fact that an activity is sexual and private entitled it to protection as a fundamental right," wrote Judge Birch, citing _Carey v. Population Servs. Int'l_, 431 U.S. 678 n.5 (1977) (contraceptives); _Planned Parenthood v. Casey_, 505 U.S. 833 (1992) (abortion). The Eleventh Circuit therefore applied the _Glucksberg_ (assisted suicide) two-part analysis, which it claims is essential for discovering previously unrecognized fundamental rights. (The Supreme Court did not utilize this analysis in _Lawrence_, therefore, it could not have found any fundamental right in that case, according to the syllogism created by the Eleventh Circuit.) The two parts are: (1) Carefully describe the asserted right; and (2) Determine whether this asserted right is a fundamental right or liberty that is, objectively, deeply rooted in the nation's history and tradition, and is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. The asserted right here, under part 1 of the _Glucksberg_-style analysis, is "whether the concept of a constitutionally protected right to privacy protects an individual's liberty to use sexual devices when engaging in lawful, private, sexual activity." The district court found such a right; however, if the Eleventh Circuit were to recognize the right, wrote Brich, it would have to encompass such activities as prostitution, obscenity, and adult incest if they were limited to consenting adults. "The state statute books are replete with constitutionally unchallenged laws against prostitution, suicide, voluntary self-mutilation, brutalizing bare fist prize fights, and duels, although these crimes may only directly involve consenting adults," wrote Birch, citing _Paris Adult Theatre I v. Slaton_, 413 U.S. 49, 68 (1973). The mere fact that a product functions within the privacy of the bedroom, or that it enhances intimate conduct, does not in itself bring the use of that article within the right to privacy. If it were otherwise, individuals whose sexual gratification requires other types of material or instrumentalities--hallucinogenic substances, depictions of child pornography or bestiality, or the services of a willing prostitute – likewise would have a colorable argument that prohibitions on such activities and materials interfere with their privacy in the bedchamber. Thus, without getting to part 2 of the _Glucksberg_ analysis, the Eleventh Circuit pooh-poohed the issue as framed. The lower court had found that the asserted right was based on the history and tradition of the activity, as required by part 2 of the _Glucksberg_ analysis. The appeals court disagreed, and enumerating four errors. They are: (a) The district court framed the asserted right in an over-broad manner. The district court's "history and tradition" analysis consisted largely of an irrelevant exploration of the history of sex in America. The court erred in undertaking to find a general right to sexual privacy. "Hunting expeditions that seek trophy game in the fundamental-rights forest must heed the maxim 'look before you shoot.' Such excursions, if embarked upon recklessly, endanger the very ecosystem in which such liberties thrive – our republican democracy," insisted Judge Birch. (b) The lower court placed too much weight on contemporary practice and attitudes with respect to sexual conduct and sexual devices. Rather, the court should have looked at the official actions of public bodies as reflected by statutes, debates, voter initiatives, and the findings of commissions. Bob Dole's Viagra commercials, in this context, were not relevant. (c) Rather than look for a history and tradition of _protection_ of the asserted right, the district court asked whether there was a history and tradition of state _non-interference_ with the right. The fact that the government has, for the most part, not interfered with the use of vibrators, dildos, anal beads, and artificial vaginas does not demonstrate the use of such objects is a protected right. In fact, to the extent that sex toys have attracted the attention of the law, it has been in the context of proscription, not protection. Sex toys have often been outlawed or regulated. (d) The district court's uncritical reliance on certain expert declarations in interpreting the historical record was flawed, and its reliance on certain "concessions" by the state was unfounded. Rachel Maines' exposition on the history of sex toys, and the state's decision not to dispute this version of history, do not make her assertions true, nor are they relevant to finding a fundamental right, rooted in history and tradition, to freely use sex toys. Therefore, the district court committed reversible error in concluding that the due process clause encompasses a right to use sexual devices. The Eleventh Circuit further rejected "the ACLU's" request that it redefine the constitutional right to privacy to cover the commercial distribution of sex toys. The district court's decision, therefore, was reversed and remanded. The dissent by Judge Rosemary Barkett was in almost complete disagreement with the majority opinion. Judge Barkett would have held that _Lawrence_ compels the conclusion that the due process clause protects a right to sexual privacy that encompasses the use of sexual devices; that the majority ignored _Lawrence_'s teaching regarding the proper framing of a liberty interest and the appropriate use of history and tradition; and that public morality, under _Lawrence_, cannot be deemed a legitimate governmental purpose for using a criminal statute to burden private sexual activity. Therefore, she would uphold the lower court. The stark differences between the two opinions led the majority to insert numerous footnotes attempting to refute the dissent, and the dissent to insert footnotes challenging the majority opinion. In some respects, this appeared a sequal to the lengthy debate over the meaning of _Lawrence_ (and _Romer v. Evans_) that the same two judges conducted several days earlier in _Lofton_, see above. This case appears to have legs: it is likely it will need to be heard by the circuit en banc and eventually the Supreme Court. _Alan J. Jacobs_ How Much of Louisiana's Sex Crimes Laws Survive _Lawrence v. Texas_? According to an Aug. 27 article in the _New Orleans Times-Picayune_, Judge Robert Murphy of the 24th Judicial District Court has made permanent a preliminary order issued in 1998 against enforcement of Louisiana's "crimes against nature" sodomy law. The ruling came in a case that has been pending since 1996, in which Louisiana Electorate for Gays and Lesbians had sued the Jefferson Parish District Attorney's Office, seeking to get the entire law struck down. Giving a strict reading to the U.S. Supreme Court's decision in _Lawrence v. Texas_, Judge Murphy left untouched those portions of the law that deal with bestiality, solicitation of anal or oral sex, and aggravated crime against nature (cases in which consent is not present or participants are underage). Murphy also refused to strike down another statute targeted by the lawsuit, which authorizes prosecutors to go after organizations or corporations that are "formed for the purpose of organized homosexuality, prostitution, narcotics distribution" and some other specified activities. The plaintiffs sought the removal of "homosexuality" from that list as well. John Rawls, attorney for the plaintiffs, accounted Murphy's ruling a "loss" because it left intact parts of the law that are frequently invoked by police to arrest gay people, especially gay men in cruising situations. (There is case law from other jurisdictions suggesting that once the law against consensual adult sodomy is eliminated, solicitation to engage in such conduct cannot be made criminal as such without raising serious First Amendment concerns.) Rawls indicated he would appeal that portion of Murphy's ruling that failed to throw out any parts of the law other than those strictly defined by _Lawrence_. A.S.L. Yukon Judge Finds Nationwide Precedent for Canadian Marriages Finding that prior decisions by three provincial courts of appeals, which the federal government has refused to appeal, have made a national precedent, Yukon Territory Supreme Court Justice Peter McIntyre ordered that a marriage license be issued to Stephen Dunbar and Robert Edge. _Dunbar and Edge v. Government of the Yukon Territory_, 2004 YKSC 54 (July 14, 2004). McIntyre issued his decision orally from the bench on July 14, and then released an edited version on July 30. In effect, McIntrye declared, the common law definition of marriage in Canada has changed for the whole country, not just for the provinces of British Columbia, Ontario and Quebec, where the appeals courts had ruled. Dunbar and Edge desired to be married on July 17, but when they sought a license in January 2004 from the territorial Vital Statistics Office, they were told that Yukon still followed the federal common law definition of marriage as the union of one man and one woman, and would do so until either Parliament acted or a court instructed to the contrary. However, noting that under Canadian law a marriage can proceed without a license and then be submitted for registration after the fact, the Territorial Registrar advised Dunbar and Edge to go ahead and have banns published, have their ceremony, and then the Territory would accept their application for filing retroactive to their desired date of July 17 if either Parliament or the Supreme Court acted. Dunbar and Edge were unwilling to settle for less than equal treatment, however, and filed suit. McIntyre, who presides part-time in Yukon when not filling his full-time position as a Supreme Court Justice in the province of Alberta, refused to accept the government's view that there was any good reason to refuse a license to the applicants, since the government itself has conceded that the common law rule violates the Canadian Charter of Rights and Freedoms. Furthermore, he noted the British Columbia Court of Appeals ruling a year ago, when it revisited its earlier decision and abandoned its original remedy. When the B.C. court had first found the common law rule invalid in the spring of 2003, it accepted the government's request to stay its remedy until July 2004 to give Parliament time to act. Then the Ontario court issued its historic decision, refusing the government's request for a stay and ordering an immediate remedy. When the B.C. parties returned to court shortly thereafter, they successfully persuaded the court that to allow same-sex marriages in Ontario while residents of British Columbia had to wait another year was inequitable and itself a violation of the Charter. Then the Quebec Court of Appeals, earlier this year, accepted the same argument and refused to stay its decision, even though in the interim the governments of first Jean Chretien and then Paul Martin had submitted questions to the Supreme Court of Canada for advisory rulings concerning a proposed new marriage law. In light of these developments, McIntyre saw no need to wait, and was even somewhat scornful of the position of the Attorney General of Canada, who had intervened in the Yukon case in support of the local government's effort to delay a remedy, for its inconsistencies. "I do not consider it open to the Attorney General of Canada to ask this court to defer to the Reference and to Parliament," he wrote. "The Attorney General of Canada is not divisible by province. The office of the Attorney General of Canada is responsible for federal law. The capacity to marry is a federal issue. . . . It is legally unacceptable in a federal constitution area involving the Attorney General of Canada for a provision to be inapplicable in one province and in force in all others. As a result of the action or inaction of the Attorney General of Canada, in my view were I to agree with the request for an adjournment, a legally unacceptable result would be perpetuated in the Yukon." McIntyre also rejected the government's suggestion that he needed to conduct a full trial on the merits of the constitutionality of the old common law rule, finding that with three provincial appeals courts having found it unconstitutional, and the government having waived its right to appeal directly to the Supreme Court of Canada, the issue has effectively been decided. Matters are complicated logically by an extra question that Prime Minister Martin added to those that had been submitted to the Supreme Court by Chretien last fall. Martin specifically asked the court whether the existing common law definition violates the Charter, in effect attempting to stage an end-run around the earlier decisions, made before he became Prime Minister, not to appeal the Ontario and British Columbia rulings. Martin's move was widely seen as an attempt to get the Court to delay responding to the questions until after the national elections, which were held in June. Nonetheless, the Court has accepted the reference of the questions and, playing into Martin's game, postponed deciding the case in order to give all interested parties time to brief the additional question. The Supreme Court is expected to take up the issue this fall or winter. But all this did not give pause to Justice McIntyre, who pointed out that the government's "reference" to the Supreme Court "is, of course, a question of consultation," and the ultimate outcome could not be predicted. What McIntyre faced was an immediate case pending before him, and a situation where the overwhelming majority of Canadians now live in places where marriage licenses are being issued to same-sex couples. (The three provinces are the largest in Canada by population, containing well over 70 percent of the nation's population.) In light of this, simple justice required extending the same right to Dunbar and Edge, and any other same- sex couple in Yukon. The matter appeared so clear-cut to McIntyre that he also ordered the government to pay the costs of the lawsuit, over the (somewhat pro forma) protests of both the territorial and national attorneys who appeared at the July 14 hearing. And so Dunbar and Edge got their wish and married on July 17. Alberta is the province that has been most resolutely opposed to same-sex marriage, at least at the level of the elected political leaders, so it will be interesting to see what happens if same-sex couples now apply for licenses in Alberta, where McIntyre is a full-time judge. A.S.L. State Gay Rights Suit May be Preempted by Federal LawThe U.S. Court of Appeals for the 1st Circuit ruled in _Local Union No. 12004, United Steelworkers of America v. Commonwealth of Massachusetts_, 377 F.3d 64 (July 30, 2004), that a gay discrimination claim brought against a labor union and its members before a state agency may be preempted because of federal labor relations law. The court's opinion, by Circuit Judge Sandra Lynch, did not reach a definitive conclusion, sending the case back to U.S. District Judge Nancy Gertner for further findings. Gay & Lesbian Advocates & Defenders and the Massachusetts Lesbian and Gay Bar Association filed amicus briefs in the case.The case involves Peter D. McGrath, an openly gay man who is a manager for commercial and industrial sales at Commonwealth Gas's Southboro, Massachusetts, headquarters office. In April 1996, Commonwealth Gas locked out its union employees after collective bargaining had stalled on a new labor agreement and the old one had expired. Commonwealth dispatched some of its office workers, including McGrath, to help perform work that was usually done by the locked-out employees. The union picketed the work, and pickets directed a stream of homophobic slurs and threats at McGrath.Among other things, the pickets called McGrath a "faggot" and called out comments such as "Nice earring, faggot, do you have a lot more at home?", "Look in the hole, two scabs and a faggot," "Nice ass, are you going to wear a speedo when you go to Provincetown this summer?," "Hey, watch out, he's got AIDS, he has probably given half you guys AIDS by now," and "Look how small these guys are. You look like little boys. You and Pete should get together because he likes little guys." McGrath also claimed that union members followed him in their cars and shouted physical threats, and on one occasion a union member poured some kind of liquid onto his back, which caused a burning sensation. McGrath responded to this, with the company's help, by filing a lawsuit against the individual union members claiming violations of state law, and he filed a discrimination claim with the Massachusetts Commission Against Discrimination (MCAD), which enforces the state's civil rights law. That law bans sexual orientation discrimination, and specifically applies to unions and individuals who engage in discriminatory conduct, allowing the filing of charges against individual union members as well as unions.As part of the agreement that settled the strike, all lawsuits were withdrawn from the courts, but McGrath persisted in pursuing his discrimination claim before the MCAD. The union and the individual employees who were named in the discrimination claim filed a new lawsuit in federal court, seeking an injunction against the MCAD proceeding with the discrimination case. They claimed that the conduct involved is covered by federal labor law and thus exempt from state prosecution. Judge Gertner dismissed the case, finding that the federal court lacked jurisdiction, and the plaintiffs appealed.The United States Constitution contains a Supremacy Clause under which federal law is "the supreme law of the land" and takes priority over state and local law. This has given rise to a rather complicated body of law about federal preemption, circumstances where a state is ousted from acting in order to avoid interference with federal policy. One area of federal law where the courts have found broad preemption is the area of labor relations in industries affecting interstate commerce, which is subject to a complex body of federal regulatory law.In this case, the union and its members were relying on provisions of the National Labor Relations Act (NLRA), which is the basic source of federal law governing union- management relations and the rights of individual employees to engage in collective action in the workplace. The NLRA provides protection for employees who are engaged in picketing and other activities in support of their union's collective bargaining efforts, but it also provides protection for employers and management officials against certain kinds of coercive union activities.To avoid state interference with the federal law governing labor relations, the Supreme Court has adopted a preemption theory, first stated in _San Diego Building Trades Council v. Garmon_, 359 U.S. 236 (1959), under which conduct that is either arguably protected or prohibited by federal labor law comes within the exclusive jurisdiction of the National Labor Relations Board (NLRB), and generally may not be the subject of legal proceedings at the state or local level. In McGrath's case, the union claimed that the conduct of the pickets was either arguably protected or prohibited by federal law, and thus McGrath's only remedy would be to file an unfair labor practice charge with the NLRB. The union also noted that Commonwealth Gas was financing McGrath's discrimination case, thus making this look more like part of a union-management dispute than an individual discrimination claim.In dismissing the union's case, Judge Gertner had ruled that in this instance preemption is a defensive argument, which would not by itself be sufficient to give the federal district court jurisdiction to hear the case. Normally, a federal case must rest on the assertion of some affirmative right based on federal law, and a case can't get into federal court solely because the defendant may have a defense to the plaintiff's state law claim based on federal law. She pointed out that the union could raise the defense of federal preemption before the MCAD. As it happens, the union did raise that defense, and the MCAD had rejected it, observing that the