Queer Law Watch

Married Same-Sex Couples Need Not Be Pre-certified to Adopt Spouse's Child

2009-02-22T13:34:00.003-05:00

A Monroe County Family Court Judge has ruled that married same-sex couples should be treated like their heterosexual counterparts when one parent wants to adopt the child of the other. Usually, same-sex couples needed to submit to an intrusive and expensive process called pre-certification when one wanted to adopt the other's child. This situation is very common with lesbian couples where the couple have used a sperm donor to have a child. This required the non-biological parent to go through the pre-certification process to allow both to be legal parents. On the other hand, married heterosexual couples in the same situation are allowed to skip the pre-certification process and file for a step-parent adoption. This ruling allows married same-sex couples to be treated the same as straight couples.

While this is just one judge in family court and it is unclear how widespread this ruling will be adopted, I expect this practice will become widespread.

Guidance for NY Same-Sex Couples

2009-01-27T11:27:00.002-05:00

Several advocacy groups have released guidance on how New York State will treat same-sex couples who married out of state. It's available here.

It a good summary of where we stand, but please keep in mind that this is an emerging area of law and everything is subject to change.

Our Long National Nightmare is Finally Coming to an End

2008-11-05T11:08:00.003-05:00

So many more bloggers more eloquent than I will write about the victory. All I can add is that I am very hopeful that Obama can start to address the big issues in a way that hasn't been done in a generation.

Meanwhile, in California, gay marriage looks like it may have been overturned. Again. We should have an answer by the end of the day.

HIV Travel Ban Partly Repealed

2008-07-31T11:35:00.002-04:00

Yesterday the president signed into law a bill that lifts a ban on immigrants who are HIV-positive. This is welcome news and a huge step in the right direction, but HIV+ travelers are still barred from entry by the Department of Health and Human Services which lists HIV as a communicable disease barring entry.

Circuit Admonishes Immigration Judge for Gay Stereotypes

2008-06-21T08:59:00.002-04:00

A panel of the Second Circuit Court of Appeals criticized immigration Judge Alan Vomacka for "inappropriate remarks--which included gratuitous comments on the petitioner's sexuality, as well as unfounded speculations about homosexuals in general..." in a decision published this week. The panel was so disturbed by IJ Vomacka that they ordered a new hearing before a different immigration judge.

The petitioner was an asylum seeker from Guyana who added sexual orientation claims to his asylum application late in the game, which would surely bring into question his credibility. The decision of the IJ was so strange in parts, however, that it went far beyond the typical skepticism that an IJ would have towards an asylum seeker in this position.

CA Supreme Court OK's Same Sex Marriage

2008-05-15T14:17:00.000-04:00

Breaking news here.

Lesbian Reaches Settlement With Village Restaurant That Discriminated

2008-05-13T20:42:00.002-04:00

A lesbian who was thrown out of Caliente Cab Company in the Village because the restaurant's bouncer thought she was a male using the women's room reached a settlement with the restaurant today. The bouncer refused to even look at her identification card proving she was female, and then threw her and her party out of the restaurant.

As part of the settlement, the restaurant agreed to add gender identity and expression to its nondiscrimination policies, pay $35,000 in damages, and take other remedial measures.

NY Times Report on Deaths in Immigration Detention

2008-05-06T18:01:00.002-04:00

The Times describes the horrible conditions in jails and other facilities for immigrants being held by the US government, often for minor violations of immigration law. The story, published yesterday, highlights the death of a 52-year-old tailor who fell while in the Elizabeth Detention Center and later died of his injuries. Officials at the Center apparently did not call for medical care immediately after the fall and left him shackled to a wall, unconscious and foaming at the mouth.

Readers of Queer Law Watch will recall last summer an HIV positive detainee was denied access to her HIV medication and died as a result.

7th Cir Rules Anti-Gay T-Shirt Allowed

2008-04-25T14:18:00.003-04:00

In a very narrow opinion written by Judge Posner of the 7th Circuit Court of Appeals, an Illinois school district was ordered to allow an anti-gay student activist to wear a t-shirt that reads "Be Happy, Not Gay". The student will only be allowed to wear his shirt on Monday, April 28, the so-called "Day of Truth" which is organized by religious zealots as a counterpoint to the "Day of Silence", which is a protest against anti-gay harassment and violence.

One of the issues in the case is the First Amendment rights of students versus the ability of a school to prevent speech that would disrupt the educational process. The Court noted that the plaintiffs in the case concede that they would not be allowed to wear shirts that would be considered "fighting words", an important point that is then lost in the ruling. (Since the Day of Silence is, as Judge Posner notes, not pro-gay but rather against harassment and violence of gays, and the so-called Day of Truth was set up as a counterpoint to the Day of Silence, shouldn't it be obvious that the so-called Day of Truth, and the plaintiff's anti-gay t-shirt, are both clearly examples of the anti-gay harassment that the Day of Silence is intended to protest?)

The opinion also notes that the plaintiffs will undoubtedly want a broader ruling than the narrow one granted by the Court, so this will hardly be the last we hear of this case.

H-1B caps hit

2008-04-08T15:48:00.002-04:00

Surprising no one, the USCIS announced today that they had hit the limit for H-1B visa for fiscal year 2009. This announcement includes the additional 20,000 master's degree H-1Bs.

FBI Name Check Backlog Plan Released

2008-04-05T14:23:00.002-04:00

USCIS and the FBI have finally decided to do something about the ever-increasing backlog for FBI name checks. According to a press release issued this week, all name checks pending more than a year will be completed by this November. The name checks have often dragged on for years, and created unnecessary litigation, so if they keep to this timeline, it will mean a significant number of folks waiting for naturalization will finally be able to become citizens.

Senate to Vote on Repeal of HIV Ban

2008-03-13T16:28:00.002-04:00

According to Immigration Equality, a bill to repeal the ban on HIV+ foreign nationals from entering the United States is on its way to a full vote in the Senate after being passe by the Foreign Relations committee today.

US to Grant LPR Status Faster

2008-02-12T12:05:00.000-05:00

Immigrants seeking legal permanent residence will be able to obtain that status faster under a new directive reported yesterday. The US Citizenship and Immigration Services will no longer wait indefinitely for the FBI to complete background checks, which sometimes caused delays of several years. Instead, the USCIS will approve LPR applications after waiting 180 days for the FBI.

The change doesn't mean that there won't be any background check at all. Fingerprints and database checks will still take place within a few months.

NY Appellate Says Out of State SSM Must Be Recognized by Employer

2008-02-03T21:20:00.000-05:00

An appellate court ruled that a Canadian same-sex marriage must be recognized in New York at least for purposes of requiring a company to provide the same benefits to same-sex and opposite sex marriages. This is in line with then-Attorney General, now Governor Eliot Spitzer's, 2004 interpretation of state law that reached the same conclusion: that New York had to recognize out of state marriages for same-sex couples if they were valid where they were performed. More here.

Deb Price: Get your docs in order!

2007-12-04T13:25:00.000-05:00

As any attorney worth his salt will tell same sex couples, getting legal documents in place to protect your family is essential. Deb Price makes the case here.

Spitzer and the Real ID Act

2007-10-29T17:00:00.000-04:00

I don't understand how someone who was such a great attorney general can be so crappy as governor. New York State Governor Eliot Spitzer has made so many missteps during his first ten months in office that it really goes beyond the typical analysis being offered: that he is a great prosecutor but a bad politician.

In the latest example, his office misread the political landscape (again) and introduced a promised and very much needed plan to offer driver's licenses to undocumented immigrants who do not have a social security number. But he failed to roll out the plan in way to allow him to control the message.

He let the story get away from him and after weeks of being pummeled in the press (both local and national), he finally began to defend the plan in a coherent way. But by then, it was way too late. The public had turned against the plan even though they didn't know anything about it.

So now he has embraced most aspects of the Federal Real ID act and will create a separate category of driver's licenses for immigrants without social security numbers. Immigrant rights groups feel betrayed and Spitzer's supporters are left yet again wondering when he's going to learn how to govern as effectively as he prosecuted.

Senate Passes Hate Crime Bill

2007-09-27T15:17:00.000-04:00

The US Senate passed a hate crimes bill today intended to protect gays and lesbians, but they had to do it by attaching it to an Iraq funding bill in order to survive President Bush's veto threat. All the Dems, nine Republicans, and two independents voted for the measure.

UPDATE: Oh! And Sen. Larry Craig voted "Nay!"

HIV positive detainee denied meds in custody, dies

2007-08-30T14:53:00.000-04:00

U.S. Immigration and Customs Enforcement should be the target of an investigation right now by the inspector general of the US Citizenship and Immigration Bureau for its treatment of an HIV positive detainee who died in custody earlier this month. But this being the Bush administration, there won't be an investigation or accountability. In fact, there are already signs that a cover-up is underway. But more on that later.

Victoria Arrelano was being held by ICE in San Diego and, even though she was transgendered, ICE held her with male detainees at great peril to her safety. Her health deteriorated during the course of the summer as she was refused medical treatment for her HIV. Her fellow detainees ended up being concerned for her well-being and petitioned ICE officials to do something to help her as her health declined. ICE officials ignored her condition and her fellow inmate's concern. According to her lawyer, she died because she was refused medical care.

After Arrelano's death, Human Rights Watch dispatched an investigator to interview her fellow detainees but ICE moved the detainees to other facilities in what appears to be an effort to prevent them from talking to HRW. I'll keep you posted.

AN UNRELATED NOTE: We've been traveling for most of the summer and I have not posted in a while. Now that we're back in town, I'll resume my regular posting schedule.

Roll Call on NYS Assembly Dems Who Voted Against Marriage

2007-06-20T16:00:00.000-04:00

Some surprises on the list (for me at least):

Peter J. Abbate
Darrel J. Aubertine
Michael Benjamin
Alec Brook-Krasny
Karim Camara
Joan K. Christiansen
Barbara M. Clark
William Colton
Steven Cymbrowitz
Francine DelMonte
Reuben Diaz, Jr.
Dennis H. Gabryszak
Sandy Galef
David F Gantt
Diane Gordon
Tim Gordon
Carl E. Heastie
Dov Hikind
Margaret Markey
N. Nick Perry
Bob Reilly
Annette Robinson
Robin Schimminger
Anthony S Seminerio

There are very few votes that are this important to the LGBT community. New York Democrats, who are happy to take our money, our endorsements, and our volunteers, have seldom been asked to take difficult votes on behalf of the community. This bill was one of those rare opportunities to do so and many of our "friends" did not support us. I'm sure the Empire State Pride Agenda will make sure that these folks remember this next year when they come looking for dollars and votes.

NYS Assembly to Pass Same-Sex Marriage Bill Today

2007-06-19T10:45:00.000-04:00

The lower house of the NYS legislature will pass a bill to legalize same-sex marriage in New York State as early as today. The bill will then will be sent to the state state senate where it will be ignored.

UPDATE 10:30 p.m. - It passed 85-61.

Vermont - Virginia Lesbian Custody Battle Update

2007-06-19T10:35:00.000-04:00

A Vermont judge dissolved the civil union between two lesbians who have been fighting in court over custody of their child. I've blogged many times about this case case before, and it is truly a sad case. The women, Isabella Miller and Janet Jenkins, had moved to Vermont after having a baby together, but the relationship soured and the child's biological mom, Ms. Miller, moved back to Virginia with the child. She claims to be "ex-gay" and enlisted the help of a right-wing legal group to try to prevent the non-biological mom from seeing their child.

This case isn't over yet; I'll keep you posted.

New York Marriage Bill Up for Committee Vote Today

2007-06-18T14:15:00.000-04:00

I have it on good authority that the NYS Assembly's Judiciary Committee will vote on a gay marriage bill today. Most bills go through the Judiciary and the Ways and Means committee before a floor vote, and the legislative session ends next week.

UPDATE 2:40 p.m.: An assembly insider has told me that the bill will voted out of the committee today (this is a good thing).

MA Victory for Marriage

2007-06-14T14:49:00.000-04:00

Bay Windows is reporting that the anti-gay marriage amendment failed in a closely-watched vote. This is a huge and important victory--the rights of a political minority group should never be put to a popular vote.

Ex-Adoptive Mother Must Pay Child Support

2007-06-13T12:00:00.000-04:00

New York's highest court ruled yesterday that an adoptive mother who surrendered the child to the Department of Social Services is required to pay child support until the child is 21. Dawn Ward adopted the child when he was 3 years old and just 25 pounds. The child's emotional and mental development lagged and he became violent and self-destructive in day care. Ms. Ward relinquished her rights to the child when he became too much for her to handle, but the county Social Services department did not provide adequate services to help her deal with the child nor did it tell her that she would be required to continue child support payments. While the Court of Appeals was sympathetic to her plight, the law requires her to continue to financially support the child.

Immigration Bill Fails

2007-06-08T13:23:00.000-04:00

Ding, dong, the bill is dead. (For now). The Senate vote fell way short, the White House is freaking, and immigrant advocates rejoice.

Bias Suit Settled Against Adoption.Com

2007-05-23T18:14:00.000-04:00

Two adoption websites that refused to serve same-sex couples have reached a settlement with a gay couple from California that sued them in 2003. One of the websites, ParentProfiles.com, will stop doing business in California rather than allow same-sex couples to use the site. (California law specifically outlaws discrimination based on sexual orientation, the websites are based out of state).

While some are viewing this as a victory for gay rights, I'm appalled that ParentProfiles.com would rather not do business at all in California if it meant it had to let same-sex couples use the site.

Senate Immigration Bill

2007-05-18T12:47:00.000-04:00

I've been looking over the immigration compromise put out by the US Senate yesterday and a lot of it is still unclear, but this is what I've been able to figure out:

1. The bill will build more fences along the Mexican border and step up border enforcement. (Stupid waste of resources, as this is really just a big show for anti-immigrant folks).
2. Employment-based green cards would be replaced by a merit "point" system. (Not entirely clear what this means).
3. Reconfigures who can petition for relatives.
4. Creates a new "Z" nonimmigrant visa for undocumented folks currently in the US. (Good thing).
5. Increases funding for USCIS. (Good thing).
6. Reduces wait time from three to eight years for LPR under the proposed DREAM Act. (Good thing).
7. Increases penalties for entering the US illegally. (Bad).
8. Increases number of beds in detention facilities. (While this may seem like a good thing because the conditions are so overcrowded right now, the government can reduce the overcrowding by releasing more folks not at risk of flight on bail).

Spitzer to Introduce Gay Marriage Bill Today

2007-04-27T11:53:00.000-04:00

Gay City News reports that New York Governor Eliot Spitzer will introduce legislation today to allow gay marriages in New York. I'll post the press release and bill was soon as I find it.

Bush Outlines Immigration Proposal at the Wrong Place

2007-04-10T10:47:00.000-04:00

Yesterday, President Bush described in very vague terms this year's version of his plan to reform immigration policy. But he did so at the opening of a new Border Patrol station! Talk about sending the wrong message on immigration reform. Details of his plan were sketchy and they don't sound great: guest worker program is back and no clear path to help undocumented immigrants who are here and law abiding.

New Study Shows 65,500 Adopted Children Living with Queer Parents

2007-03-28T17:26:00.000-04:00

The Williams Institute released a study yesterday on queer adoption and found that there are at least 65,500 adopted kids living with queer parents. In fact, queer folks are raising 4% of all adopted children in the United States. They also report that 50% of gay men and 41% of lesbians want to have a child. The full report is here.

US to Ban Guatemalan Adoptions?

2007-03-12T16:01:00.000-04:00

The US Government has proposed banning all adoptions from Guatemala because of widespread abuses and ethical concerns there. While I haven't personally handled any Guatemalan adoptions, I know of several couples and single parents who have adopted there. I'll post more as this story develops.

Recent Article in Gay City News

2007-03-06T21:02:00.000-05:00

I'm quoted in this article in Gay City News about gay adoptions and the New York Archdiocese. Should have posted on it sooner. Oops.

Ex Immigration Judge Slams Gonzalez

2007-02-28T12:42:00.000-05:00

Some parting shots from former Immigration Judge Bruce Einhorn directed at Attorney General Alberto Gonzales. Einhorn, in a profile after his retirement from the bench, stated that he

find[s] it somewhat presumptuous that a government official who signed off on a memorandum which described certain anti-torture provisions of the Geneva Convention as quaint would then lecture judges on the need to show compassion for the foreign-born... I think the remarks were driven by what was perceived to be the need to demonstrate that the attorney general was not part of the problem.

Einhorn was taking issue with a 2006 memo from Gonzales that criticized Immigration Judges for “intemperate or even abusive” behavior on the bench.

Read the full article here.

US Government May Be Secretly Reading Your Email

2007-02-21T18:51:00.000-05:00

PBS' weekly program Now broadcast a report Friday that makes a compelling case that the government is intercepting and storing MOST emails sent in the US. Watch the show here.

USCIS Changes Policy for Asylum Green Card Holders

2007-01-22T11:22:00.000-05:00

The Federal government posted a new policy on its website concerning resident aliens who obtained their green card through asylum. Now, such aliens risk losing their status if they return home even for a short visit--for a funeral, for example. This is a surprising shift in policy and leads me to question whether it is outside the bounds of the law. Expect a challenge once a good fact pattern has been found.

Jamaican Lesbian Denied Asylum

2007-01-04T23:25:00.000-05:00

A Federal appeals court in Philadelphia has denied the asylum claims of Jamaican lesbian Marcia Forrester, despite widespread violence and persecution of lesbians in Jamaica. The court wrote that "notwithstanding Forrester's obvious masculinity and lesbian status, she failed to offer any evidence that she was tortured or arrested on any of her four visits to Jamaica."

Forrester had won her asylum claim in front of an Immigration Judge, but the government appealed. The Board of Immigration Appeals reversed the Immigration Judge's decision and denied asylum. The federal court was the last place she could turn before facing deportation. Unfortunately, the standard for overturning a decision of the BIA is often insurmountable.

VA Court Rules That Vermont Should Decide Custody in Lesbian Case

2006-11-28T19:38:00.000-05:00

The Virginia Court of Appeals ruled today that Virginia has no say in a custody dispute between former lesbian partners who used to reside in Vermont. This is a very sad case where one mom enlisted the help of a conservative anti-gay group to deny visitation rights to the non-biological mom and has dragged on for some time.

It's not over yet, but Lisa Miller, the non-biological mom, is a step closer to winning the case.

NJ Supreme Court Orders Gay Marriage

2006-10-25T16:18:00.000-04:00

The New Jersey Supreme Court has just ruled that denying same-sex couples the right to marry is unconstitutional and directed the legislature to address this within 180 days. Huge victory, yadda-yadda-yadda. Here's the decision.

NY Times Details More Problems with Immigration Court

2006-10-08T21:10:00.000-04:00

In a follow up to an article published over the summer, the New York Times today published an article detailing the pressures placed on the country's immigration judges. They note that there are only around 225 judges and that they deal with over 10,000 cases a year--all without much support. I agree that these judges are pushed to the limit and would like to see their numbers increased dramatically so that they could actually spend more time on each case.

Supreme Court Hears Immigration Cases on Drugs

2006-10-04T16:40:00.000-04:00

The US Supreme Court heard arguments yesterday in two important cases concerning the rights of immigrants. A decision will hopefully clarify when an immigrant can be deported because of drug violations. At issue is the meaning of a Federal law passed in 1988 that declared as automatically deportable any immigrant convicted of a drug-related aggravated felony.

State law varies so greatly that an immigrant in one state convicted of having only a small amount of drugs would be deported while in another state they would not. It sounded as if several of the justices--including Chief Justice Roberts--may strike down the law for this reason. However, Justice Scalia has a credible argument that at least one of the cases is moot.

MA Court Says RI Couple Can Marry

2006-09-29T13:13:00.000-04:00

A Massachusetts court has ruled that a Rhode Island same-sex couple can legally marry in Massachusetts. Out-of-state couples had been prevented from getting married in Massachusetts because of a 1913 law which does not allow out-of-staters to marry there if their marriage would not be legal back home. (The law was originally passed so that interracial couples from the South could not marry in Massachusetts).

The decision also notes that New Yorkers can not marry in Massachusetts because of the recent court ruling that same-sex marriage is not allowed unless the legislature acts.

I know it's easy to be a Monday morning quarterback, but I still have to wonder what would have happened if plaintiffs and legal groups in New York hadn't filed their case. Would we now be celebrating a victory today?

Queer Divorces Discovered by Mainstream Media

2006-09-26T12:22:00.000-04:00

Even though they've been going on for a while, the mainstream media is now noticing same-sex divorces. This article lays out some of the issues same-sex couples would face when breaking up.

Careful financial planning and a Living Together Agreement, sort of like a pre-nuptial, are ways that same-sex couples can understand what they are getting themselves into. In short, it could be a real freaking mess to get out of.

Harvey Fierstein was on In the Life a few years back and he cautioned that we should think twice before marrying because the last thing we'd want to see is that gay divorce rates were higher than those for straight people. What's interesting is that in Massachusetts, not as many same-sex couples have married as one would have thought. I remember reading that it was a very low percentage of same-sex couples that are actually marrying. Not sure if anyone has figured out why.

Plaintiff in Lawrence v Texas Dies

2006-09-13T13:51:00.000-04:00

Lambda Legal released a statement yesterday announcing the death of Tyrone Gardner, one the plaintiffs in the landmark case that overturned sodomy laws in the United States. There were no details released about the circumstances surrounding his death, but his passing is sad and his brave stand against the government should be recognized.

Same-sex couples adoption woes

2006-09-12T15:15:00.000-04:00

Reuters has an article about the difficulties same-sex couples face when trying to adopt. They include deception (hiding one's sexual orientation), discrimination, and the financial and legal burden of completing a second-parent adoption. It's a good read.

Benefits Lawsuit Dropped; Plaintiffs Too Tired to Carry On

2006-09-07T21:32:00.000-04:00

The plaintiff in a Colorado case that sought to restore domestic partner benefits for public employees in Colorado Springs gave up yesterday because she "did not have the energy" to go on after her partner died in May. This is a sad finish to a very sad case.

In 2002, the Colorado City Council extended health benefits to domestic partners. Only six people signed up for the benefits, yet they became a major issue in the election the following Spring. Several councilmembers were ousted and in 2003, a newly-elected City Council took away those benefits.

According to one blog, "While a co-worker was allowed to leave when her dog died, Barb Henson claims that when her partner Kaylynn LaGamma suffered a grand mal seizure, Henson was not excused from work because LaGamma was not considered family." So Kaylynn LaGamma sued to challenged this injustice. But she eventually just ran out of steam.

LaGamma says she felt abandoned by the local and national groups which did not help her, and charged that sexism played a role in the groups' decision not to get involved.

But stay tuned. A ballot measure this November could result in those benefits being restored for public employees who are registered domestic partners.

Pension Law Big Victory

2006-08-30T22:54:00.000-04:00

I don't know how HRC did it, but they managed to score a tremendous victory for equality by quietly lobbying to include same-sex couples in a bill signed by President Bush last week. In a nutshell, the changes allow anyone to receive retirement benefits in a way that equalizes the tax burden. Married couples had long enjoyed this benefit but it was, of course, denied to queer couples.

On a personal note, I want to let readers know that I've been a little distracted over the past few weeks and have not blogged on this and several other important developments. But I have a good excuse: my partner and I have been matched with a birthmom and (if all goes well) will be adopting a baby boy in a few months. So, please excuse my lack of posts for the time being.

Iowa Lawmakers Shown the Door

2006-08-10T09:38:00.000-04:00

As I predicted, the Iowa lawmakers who wanted to intervene in a gay marriage lawsuit were denied standing in the case.

NY Marriage Bill

2006-07-18T11:56:00.000-04:00

I'm quoted in an article in this week's New York Blade. You can read it here.

No Insurance Benefits for Same-Sex Partner

2006-07-13T14:13:00.000-04:00

A Nassau County judge ruled yesterday that insurance companies do not have to extend coverage to the same-sex partners like they do to married couples. Expect many more setbacks like this as trial court judges use last week's marriage decision as precedent.

Judge Denies Name Change

2006-07-12T12:18:00.000-04:00

A Rochester judge Friday refused to allow a trans man to change his name. The ACLU is involved, and I can't figure out what legal standard the judge is applying (other than his own bigotry).

Off Topic, But I Can't Resist

2006-07-12T11:19:00.000-04:00

A wingnut sees a pro-abortion article in The Onion and thinks it's real. Enjoy.

NYC Domestic Partners Not Entitled to Joint Tenancy

2006-07-07T10:44:00.000-04:00

A New York trial court ruled last month that registered domestic partners are not entitled to joint tenancy in rent stabilized apartment. While a domestic partner is entitled to succession rights to the apartment, there is no requirement that domestic partners be treated equally to married couples.

The case, Zagrosik v. HPD, was reported in the New York Law Journal only Wednesday. It clarifies, in a bad way, what was an unclear area of law. The case relied partially on an appeals court decision in the New York state gay marriage case in deciding that domestic partnerships were not meant to be treated equally to marriage.

NY Court Says No to Same-Sex Marriage

2006-07-06T09:08:00.000-04:00

Decision just out, but they send it over to legislature. Will post more detailed analysis later.

http://www.nycourts.gov/ctapps/decisions/jul06/86-89opn06.pdf

UPDATE 1 (9:12 a.m.): Majority uses the procreation argument! They say that marriage is to support the welfare of children and only straight couples can have children, so this is a rational reason why marriage should be between a man and a woman. (What about couples who are sterile? Doesn't their marriage count?).

UPDATE 2 (9:17 a.m.): The majority rejects studies showing children of same-sex couples do just as well as opposite-sex couples because "there has not been enough time to study the long-term results of such child-rearing."

UPDATE 3 (9:23 a.m.): The majority defines a major issue as "a fundamental right" to same-sex marriage, thus allowing it to reject it as something not "deeply rooted in this Nation's history and tradition." But they could have just as easily defined the issue at stake as a "fundamental right to marriage."

UPDATE 4 (9:30 a.m.): The majority uses the term "sexual preference." Urgh!

UPDATE 5 (9:32 a.m.): "[L]imiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing...[this would be a] very bad idea."

UPDATE 6 (9:42 a.m.): Majority says legislature should address same-sex marriage, not the courts. Concurrence by Graffeo seems pointless, although his language is stronger (think Scalia).

UPDATE 7 (9:47 a.m.): Judge Kaye's dissent points out (like I did above) that by defining the issue as a "fundamental right to same-sex marriage" instead of a "fundamental right to marriage", the majority makes it seem like the plaintiffs are asking for a "new" right. She writes, "An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it."

UPDATE 8 (9:50 a.m.): Judge Kaye's dissent says that the equal protection claim should have been whether there is a legitimate state interest in excluding same-sex couples from marriage, not whether the statute benefits those who it was supposed to benefit.

UPDATE 9 (9:55 a.m.): Dissent find that heightened scrutiny should have been applied because of sexual orientation discrimination, sex discrimination, and denial of a fundamental right, "a test that defendants concede it cannot pass."

UPDATE 10 (9:57 a.m.): Dissent says majority is not fulfilling its constitutional obligation to protect the rights of New York's citizens.

Vote was 4-2.

My initial impressions and not thought through comments: We knew it would be tough to get four votes on this Court now that Pataki has had 12 years to screw with its make-up. The majority's decision is not so far off base as to be laughed at (although parts of it are), although they do backflips to define the issues before them in such a way that guarantees the result.

Do I think that ten years from now this will be a Bowers or Plessy? It does not appear to be as bad, on its face, as those decisions. (In other words, it doesn't condemn us like Bowers as immoral and disgusting). But I will let smarter people than I debate that elsewhere.

In all, it is clear that they wanted to reject same-sex marriage and just redefined the facts before them until they could fit their decision. Sending it over the legislature means this issue is going nowhere fast. (The legislature is known for its inability to get anything done in a timely fashion. This same court had ordered the legislature to address unequal education funding in the state several years ago, saying it was a constitutional violation that so many kids in urban areas were being denied a sound, basic education. It's been 706 days since THAT decision and the legislature has yet to comply with the court's order).

AK Supreme Court OKs Gay Foster Parents

2006-06-29T12:37:00.000-04:00

In a case I wrote about recently, the Arkansas Supreme Court ruled today that the state can not ban gays from being foster parents.

Looking for link to opinion at their website, but can't find it yet. Will post when I do.

UPDATE: Got it here. No details on reasoning, it just says that the blanket ban on gay foster parents is unconstitutional.

Gay Couples & Immigration

2006-06-20T13:15:00.000-04:00

There have been a few recent articles on how immigration law discriminates against queer couples. Thought I'd share:

"1 Couple, 1 Home, 1 Different," Rick Green, Hartford Courant.

"No Legal Status Puts Gay Couples in Limbo," Wyatt Buchanan, San Francisco Chronicle.

"Binational Gay Couples in Immigration Bind," Richard Fausset, Los Angeles Times.

ACLU Foster Parent Case Heard in Arkansas Supreme Court

2006-06-16T12:25:00.000-04:00

Four gay residents of Arkansas, banned from becoming foster parents under the state's discriminatory laws, had their case challenging the ban heard before that state's highest court yesterday.

One of the state's arguments in defense of state law was that single "nonpracticing homosexuals" could become foster parents but if it became known that they were having sex then they would be disqualified. At least two justices took issue with this argument, asking if the state was going to peek into bedrooms or ask heterosexual single parents if they are having sex--something that would disqualify them from become foster parents as well under the law.

The state did not respond directly and argued about the moral and spiritual well-being of a child, but the justices did not appear to be buying it.

CA Court Rules on Same-Sex Parental Rights

2006-06-14T10:15:00.000-04:00

A California appeals court remanded a case Friday concerning the rights of a nonbiological parent in a lesbian relationship. The nonbiological mom is suing so that she can see her child because the biological mom has only allowed her to visit the child twice since July 2003.

The lower court will apply the test outlined by the California Supreme Court for determining parental rights for same-sex parents by looking at how the nonbiological parent treated the child (e.g., did she hold the child out as her own?). The court will also look at whether the couple planned the pregnancy together, raised the child together, and acted as co-parents together. If so, then the nonbiological parent will be granted parental rights under the law.

Iowa Lawmakers Still haven't Learned About the Separation of Powers

2006-06-06T11:41:00.000-04:00

Last year, I wrote about a group of Iowa lawmakers who were trying to intervene on a divorce case between two lesbians who had dissolved their Vermont civil union after moving to Iowa. Well, they're at it again. Now they are trying to get party status as interveners in the lawsuit challenging Iowa's gay marriage ban because they have a "right to protect the separation of powers". Talk about doublespeak.

What that means is that they want the right to be heard in the courtroom as if their rights were violated. But courts don't allow just anyone to be a party in a case. You have to show that you have a concrete stake in the issue at hand, not just a philosophical desire to be heard on an issue.

Imagine if you were hit by a drunk driver in a car accident and you sued him. That makes sense. But now imagine if the maker of your car--Yugo, let's say (so I won't get a cease and desist letter from Ford)--doesn't think you should be allowed to sue in the first place because your state should have no fault insurance laws. Does it make sense to allow this outside party into the case?

Now, back to the Iowa lawmakers. It is the courts, not the legislature, that determines if laws are unconstitutional. But they want to be able to have a hand in determining whether or not the gay marriage ban is unconstitutional. They want to be heard on this case just because of their strong philosophical beliefs but they don't have any real stake in the case other than their opposition to gay marriage. Unfortunately for them, that's now how courts work.

I hope the Iowa courts show them the door--again.

NY's Highest Court Hears Marriage Arguments

2006-05-31T16:51:00.000-04:00

The New York Court of Appeals heard arguments today on the consolidated same-sex marriage cases. I was only able to hear bits and pieces on the webcast (traffic must have overwhelmed them), but I heard several judges asking about the constitutional differences between marriage and civil unions if they were equal in everything but name. One of the lawyers argued that such an arrangement would take care of most of the constitutional concerns but, since marriage is a fundamental right, the very fact that unions would not actually be called marriage would still mean that same-sex couples are treated differently. Therefore, separating same-sex relationships into civil unions--and denying them marriage--would still violate the equal protection and due process clause of the state constitution.

Gov't Goes After Gays Seeking to Marry for Immigration

2006-05-24T10:38:00.000-04:00

Four people in Hawai'i have been charged with fraud after they allegedly attempted to circumvent discriminatory US immigration laws by arranging a marriage. A gay bi-national couple, one from Hawai'i and the other Chinese, had found a US citizen to marry the Chinese citizen last year in exchange for a payment. Unfortunately, many queer couples resort to such measures because US law does not recognize their relationship.

I have only heard of a handful of cases where the government has actually filed charges like these. I wonder if there is more to the story--I'll monitor and keep you posted.

Supreme Court Lets Stand State Court Ruling on Gay Parents

2006-05-15T16:10:00.000-04:00

The US Supreme Court refused today to hear a case stemming from a dispute between a lesbian couple who parented a child together before breaking up. The child's biological mom, Page Britain, is trying to keep the non-biological mom, Sue Ellen Carvin, from having any relationship with the child at all. Britain had lost in Washington state court and tried to appeal the decision to the Supreme Court.

The case will return to state court where the non-biological mom must prove that she was a "de facto parent" of the child before the couple broke up. Several months ago, I wrote about a similar case in Delaware. In that case, the state's highest court ruled that the non-biological parent was, in fact, a de facto parent. However, this case will turn entirely on the facts--how much of a parental relationship the non-biological mom actually had with the child.

Major Report on Bi-National Queer Couples Released

2006-05-03T11:31:00.000-04:00

Immigration Equality and Human Rights Watch released a report yesterday detailing the horrible impact that US immigration laws have on same-sex couples when one partner is from another country. The report documents how the laws discriminate against queers and force couples, families, and even children to separate.

Defeat for Wing-Nuts Wanting Religious Exemptions

2006-05-02T13:10:00.000-04:00

As I've blogged about before, one of the latest tactics of the wing-nuts is to claim a "religious exemption" to anti-discrimination and other laws. A Federal appeals court yesterday rejected that argument. The case involved a prison chaplain who would not let a gay inmate fully participate in religious services.

The case is a major step in the right direction and a slap back to these ludicrous exemption arguments. Allowing a person to ignore laws or employer policies because they have a "personal belief" against them allows anyone to ignore anything.

Gay Immigrants Could Be Criminals, Again

2006-04-28T16:38:00.000-04:00

Read this opinion piece by Glenn Magpantay. It argues that gays and immigrants should be working closer together and notes that sodomy laws criminalized gay sex only three years ago. The draconian immigration bill being debated in congress would criminalize undocumented immigrants as well as anyone who help them--including family members, charities, and even boyfriends and girlfriends in a relationship with an undocumented immigrant.

Full disclosure: Glenn is my partner of 13 years.

CA Lesbians Denied Fertility Treatment Appeal Lawsuit

2006-04-26T11:18:00.000-04:00

A lawsuit against two doctors who refused medical treatment to a patient because she is a lesbian will be appealed to the California Supreme Court. As I've blogged about before, a lesbian couple sought fertility treatment from a medical center but were eventually refused insemination because of their sexual orientation. The doctors have thus far successfully argued that they can refuse the treatment because of their fundamentalist Christian beliefs. Originally, the California Medical Society sided with the doctors, but then came to its senses.

Jennifer C. Pizer, of Lambda Legal, is representing the women and said, "Our clientÂs doctorsÂ behavior goes against established medical ethics and violates California civil rights law."

Wing-Nuts File Suits for Right to Be Bigots

2006-04-20T12:29:00.000-04:00

In a surprisingly slanted article on the topic, Stephanie Simon of the L.A. Times describes the newest tactic of Christian extremists. Since their religion compels them to be bigots, any policy that limits their ability to be bigots discriminates against their religion so they're suing to overturn them. Here's the money shot:

Evangelicals have been suspended for wearing anti-gay T-shirts to high school, fired for denouncing Gay Pride Month at work, reprimanded for refusing to attend diversity training. When they protest tolerance codes, they're labeled intolerant.

Let's take it one point at a time. First, there have been students suspended for wearing anti-gay T-shirts because they usually violate dress codes which ban shirts or buttons that are offensive to any race, religion, or gender. Does anyone really think that a student should be able to wear a shirt that says "Homosexuality is shameful" in a school? By the way, here's a picture of the little darling who is bringing one of these suits. His name is Tyler Chase Harper (on the right) and he was suspended for wearing anti-gay shirts two days in a row after the school participated in the National Day of Silence which recognizes the discrimination that the LGBT community faces. The school officials let him wear a religious shirt with an anti-gay message on the day of the event, but they drew the line when he showed up the next day with another.

"Fired for denouncing Gay Pride Month". Fat chance. I'd like to hear of a single case where a person was fired solely because of this. But please, if someone can link to an article on the topic, please enlighten me.

"Reprimanded for refusing to attend diversity training." Sounds like insubordination to me, not religious discrimination. Are the wing-nuts saying their religion gives them the right to refuse on-the-job training? Let's take another example. The wing-nuts denounce evolution so it would follow that they don't believe in the random mutation and natural selection that is central to Darwin's theory. If any of them were at least logically consistent, they would therefore not believe in flu shots. So what if one of these wing-nuts refused to administer flu shots as a nurse in a medical facility because of their religious beliefs? Shouldn't s/he be reprimanded?

"When they protest tolerance codes, they are labeled intolerant." Well, duh.

The Christian extremist who have brought these suits are no different than Islamic extremists. Both believe that everyone should live the way that they do--no exceptions. If someone disagrees with them, they respond with violence (abortion clinic bombings, gay-bashings) or hate speech. They both want their governments to outlaw everything they do not believe in. They both believe that, no matter what, they are being oppressed because of their religion. They are both a small, small group within the larger religion. Most of what they do is counter to Christian values and the true teachings of Mohammed.

Indiana Court Allows Joint Adoption By Same-Sex Couple

2006-04-14T13:52:00.000-04:00

An Indiana appeals court today granted a joint adoption by lesbian parents of a foster child. The decision overturns a lower court's ruling that the child should be placed with a married couple. Indiana bans same-sex marriage. The child, now 18 months old, has lived with the parents since she was two days old. The appeals court found that "everyone except...[the judge in the lower court] believes it is in the best interest of [the child] for the adoption to proceed."

The appeals court noted that the lower court judge, Morgan Circuit Judge Matthew Hanson, claimed that it was only because the couple were unmarried--not that they were lesbians--that caused him to rule against the adoption. I find this highly unlikely.

CA Court Again Rejects Challenge to DP Law

2006-04-13T10:48:00.000-04:00

The California Supreme Court yesterday refused to consider a challenge brought by a right-wing group to the state's domestic partnership law. The group, Campaign for California Families, wanted the court to overturn the law because it believes it conflicts with Proposition 22, which defines marriage as a union between a man and a woman.

In Michigan, a constitutional amendment banning gay marriage and "similar union[s]" is also being litigated to determine if it prevents the state from offering healthcare and other benefits to the same-sex partners of government workers.

Both lawsuits show conservatives' true contempt for majority rule. These groups supposedly want the voters to decide whether gay marriage should be allowed and sneer at "legislating from the bench" when a judge rules in favor of gay marriage. These same groups then run to the courthouse to try to go far beyond what the voters decided. The voters said no to same-sex marriage, they didn't say no to health benefits for the partners of queer state workers or no to domestic partnerships.

Queer People of Color Respond to Cannick's Anti-Immigrant Piece

2006-04-10T12:15:00.000-04:00

This letter was released today in response to Jasmyne Cannick's anti-immigrant opinion piece posted on The Advocate's website last week. I'm posting it all since I can't find a link to it.

April 10, 2006

An Open Letter to the Lesbian, Gay, Bisexual and Transgender Community:

We are a group of lesbian, gay, bisexual and transgender (LGBT) people of color who work in the LGBT movement. We are writing to you in response to Jasmyne Cannick’s article "Gays First, Then Illegals”, which ran in The Advocate, in which she, a black lesbian, argues that she cannot support the current battle for immigrant rights because LGBT people have not yet won the right to marry. We are writing to express our profound disagreement with her, and to offer alternative LGBT perspectives to the current immigration battles happening across the country.

To begin with, Cannick fails to realize an obvious fact – the LGBT community and the immigrant community are not mutually exclusive. There are thousands of LGBT immigrants in this country. There are thousands of black immigrants. And there are thousands of black LGBT immigrants. To put forward an argument that says "we should get ours first" makes us question who exactly is the "we" in that analysis. In addition, we recognize the historically interconnected nature of the immigrant and LGBT struggles — such as the ban on “homosexual immigrants” that extended into the 1990’s, and the present HIV ban, which disproportionately impacts LGBT people — and we believe that only by understanding these connections and building coalition can we ensure real social change for all.

And we ask those who share the destructive views of this article to remember the immortal words of Audre Lorde when she said that “There is no hierarchy of oppression”. We reject any attempts to pit the struggle of multiple communities against each other and firmly believe that "Rights" are not in limited supply. We condemn the “scarcity of rights” perspective espoused by Cannick and other members of the LGBT movement, and are surprised to see members of our community trafficking in such ugliness. But then, one reason why it has always been so hard to shift power in this country is because the ruling class has successfully made us believe that there are only a few deserving groups to whom rights can be given. This strategy has always been used to divide oppressed groups from coming together to work in coalition.

We are painfully aware that lesbian, gay, bisexual and transgender communities still lack many basic protections under the law in this country, including the right to care for and support all of our families, in the various ways in which we construct family and kinship. Nevertheless, supporting immigrant rights, while we continue to work for LGBT liberation, does nothing to hurt our cause. In fact, we believe the opposite to be true, and want to work towards building powerful coalitions between immigrant and LGBT movements to work together for social justice.

We are also aware that many immigrant right advocates have (intentionally or not) used anti-black rhetoric to move their agenda forward. Arguments such as “Don’t treat us like ‘criminals’” or “We are doing work that ‘other’ Americans won’t do” have the effect of positioning immigrant narratives as subtly juxtaposed with American stereotypes of non-immigrant black communities. They leave native-born black Americans as among the only people who do not have access to the immigrant narrative, and so are in a permanent position of subordination, as the state consistently negotiates and redefines citizenship and “American-ness” for almost everyone but blacks. Nevertheless, the solution to this problem is not to abandon support for the struggle of immigrant communities. Rather, we call on immigrant movements and (non-immigrant) black organizations to work together for real racial and economic justice in this country. Together these movements can work to end the exploitation and targeting of both communities, and to ensure that black folks and immigrants do not end up having to choose between competing for low-paying jobs, or being targeted for detainment or imprisonment.

As lesbian, gay, bisexual and transgender people of color, we support the current immigrant rights marches and rallies happening across the country this month, and we march too. We march because immigrants are among the most politically vulnerable, underpaid and exploited communities in the country, and are asking for basic human rights, including the right to live free from torture and exploitation, and the right to work. We march because we recognize the connections between the state attacks on immigrant and LGBT communities, and that LGBT immigrants in particular are disproportionately affected by much anti-immigrant legislation. We march because we oppose the heightened policing and criminalization of immigrant communities, including the increased militarization of the border, as mandated by HR 4437 and Senate bills. We march because we oppose indefinite and mandatory detention of noncitizens—as well as the mass incarceration of people-of-color-communities in the U.S. more broadly—and envision a society that ensures the safety and self-determination of all people, regardless of national origin, race, class, gender or sexuality. We march because we oppose the guestworker proposals, which would continue the exploitation of many low-wage workers. We march because we demand the repeal of the HIV ban. We march because our sexualities have been historically criminalized by this country, and we understand that “law” and “justice” are not the same thing.

It is our understanding that Jasmyne Cannick was writing as an individual, and not as a representative of either the National Black Justice Coalition (on whose Board of Directors she serves) or The Stonewall Democrats (for whose Black Caucus she serves as Co-Chair). As LGBT people of color, we call upon both of those organizations to publicly clarify their own positions in this ongoing civil rights discussion.

We also call upon our community to imagine how much more progress we could make if we all stopped thinking of social justice as a zero-sum game.

Katherine Acey, Executive Director, the Astraea Lesbian Action Fund

Faisal Alam, Founder & Former Director, Al-Fatiha Foundation for LGBTIQ Muslims

Samiya Bashir, Board Member, National Black Justice Coalition, Communications Director, Freedom to Marry, Board Member, Fire & Ink

Noemi Calonje. Immigration Project Director, National Center for Lesbian Rights (NCLR)

Noran J. Camp, Office Administrator, Freedom to Marry

Chris Chen, National Gay and Lesbian Task Force, immigrant from Taiwan 1997

Alain Dang, Policy Analyst, National Gay and Lesbian Task Force

Debanuj Dasgupta, Board of Directors, Queer Immigrant Rights Project

Carlos Ulises Decena, Ph.D., Assistant Professor, Rutgers, the State University of New Jersey

Joseph N. DeFilippis, Executive Director, Queers for Economic Justice

Marta Donayre, Co-Founder, Love Sees No Borders

Andres Duque, Coordinator, Mano A Mano

Monroe France, Educational Training Manager, Gay, Lesbian, Straight Education Network, Board of Directors, Queers for Economic Justice

Eddie Gutierrez, Rep. for Christine Chavez, granddaughter of labor and civil rights leader Cesar Chavez

Priscilla A. Hale, LMSW, Executive Director, ALLGO

Lorenzo Herrera y Lozano, Director of Arts and Community Building, ALLGO

Kemi Ilesanmi

Surina Khan, Interim Vice President of Programs, The Women's Foundation of California, former Executive Director, International Gay & Lesbian Human Rights Commission

Lee Che Leong, Director of Teen Health Initiative, New York Civil Liberties Union

Elizabeth Lorde-Rollins, Assistant Professor of Obstetrics and Gynecology, Assistant Professor of Pediatrics, Mount Sinai Adolescent Health Center, Board of Directors, Queers for Economic Justice

Yoseñio Vicente Lewis, Board Member, National Gay and Lesbian Task Force, Latino, Trans Social Justice Activist, first generation U.S. Citizen

Glenn Magpantay, Steering Committee Member, Gay Asian & Pacific Islander Men of New York

Rickke Mananzala, Campaign Coordinator, FIERCE!

Gloria Nieto, National Latino Justice Coalition

Doyin Ola, Welfare Organizer, Queers for Economic Justice

Jesús Ortega-Weffe, Director of Community Organizing, ALLGO

Emiko Otsubo, former Board member, Queers for Economic Justice

Clarence Patton, Executive Director, NYC Gay and Lesbian Anti-Violence Project

Donna Payne, Senior Diversity Organizer, Human Rights Campaign

Earl L. Plante, Development Director, National Minority AIDS Council, President-Elect, Board of Directors, National Black Justice Coalition

Achebe Powell, Betty Powell Associates

Lorraine Ramirez, Public Policy Committee, Queers for Economic Justice

Lisbeth Meléndez Rivera, Convener, the National Latino Coalition for Justice

Ignacio Gilberto Rivera, Founder, Poly Patao Productions, Board of Directors, Queers for Economic Justice

Russell D. Roybal, Director of Movement Building, National Gay and Lesbian Task Force

Shay Sellars, Major Gifts and Events Administrator, National Gay and Lesbian Task Force

Pedro Julio Serrano, Communications Associate, Freedom to Marry, President, Puerto Rico Para Tod@s

Sarah Sohn, New Voices Legal Fellow, Immigration Equality, Board of Directors, Queers for Economic Justice

Lisa Thomas-Adeyemo, Co-Coordinator, National People of Color Organizing Institute, National Gay and Lesbian Task Force
Director of Counseling, San Francisco Women Against Rape

Carmen Vazquez, Deputy Executive Director, Empire State Pride Agenda

Robert Vazquez-Pacheco, former Program Manager, Funders for Gay and Lesbian Issues

Lisa Weiner-Mahfuz, Capacity Building Project Director, The National Gay and Lesbian Task Force

Andy Shie Kee Wong, Coalition Manager, Asian Equality

Lancy Woo and Cristy Chung, lead Plaintiffs in the Woo vs Lockyer, marriage rights case

Miriam Yeung, Director of Public Policy and Government Relations, the LGBT Community Center

Please circulate widely.

Outrageous Anti-Immigrant Opinion Piece in the Advocate

2006-04-07T18:56:00.000-04:00

Former GLAAD staffer Jasmyne Cannick wrote a commentary for The Advocate, posted this week on their website, that attacks immigration reform and undocumented immigrants. In it, she argues that "Lesbians and gays should not be second-class citizens. Our issues should not get bumped to the back of the line in favor of extending rights to people who have entered this country illegally. Bottom line."

Bloggers have rightfully called her out on the carpet, especially Richard Kim at The Nation who wrote Cannick "spews the kind of xenophobic rhetoric now rarely heard outside of right-wing radio and white nativist circles".

I can't do a better job than Kim did, but I will add my two cents. Many in the LGBT community do not see the connection between immigrants rights and LGBT rights beyond bi-national couples. And, as I've said before, I think our laser-beam focus on gay marriage is hurting us. So as offensive as I find this article, I guess I'm not surprised that someone in the queer community wrote it.

What does shock me is that a former staffer from GLAAD wrote it. And that she's a she. And that she's African-American. Sadly, just because you may have experienced one type of oppression doesn't mean that you really understand it. Or that a supposedly media-savvy individual wouldn't see that this year's GOP scapegoat is immigrants. I guess the gays get the year off.

Last week, I was able to win an immigration deportation case for a gay Bangladeshi man who faced almost certain death if he was sent back. He arrived illegally in the US and, because of an anti-immigrant law passed in 1996, could not easily win an asylum claim. Since he "entered the country illegally" would Cannick's "bottom line" be that he should have been sent back?

AZ Bill Would Make it Harder for Gays to Adopt

2006-04-04T12:00:00.000-04:00

A bill making its way through the Arizona legislature would make it harder for queers to adopt by giving married parents preference. While it does not specifically mention LGBTs and its exact implementation is still unclear, it would add yet another barrier for same-sex couples to adopt. It also makes it harder to place children needing a home, so ultimately it would harm the very children it attempts to help.

UPDATE 4/18/06: The Arizona state senate rejected the bill in a victory for local LGBT parents.

Federal Challenge to Gay Marriage Ban Continues Despite Protests

2006-04-03T09:59:00.000-04:00

A same-sex couple from California and their lawyer are pushing forward with their lawsuit challenging bans on gay marriage. Unlike suits brought in other jurisdictions that are based exclusively on state law, they argue that the US Constitution forbids states from outlawing same-sex marriage.

Every legal right group with a significant queer rights docket have apparently asked the couple and their lawyer to drop the case since they unanimously believe that the case will result in a major loss for the same-sex marriage movement if it goes to the US Supreme Court now. There is, of course, a tension that any lawyer in a situation like this would have to deal with. On the one hand, you wouldn't want your litigation to result in a rollback of legal rights for people like your client. On the other hand, you have a duty to your individual clients to fight for their rights. Many attorneys resolve this by saying their first and only duty is to their clients.

The lawyer in the case was quoted in an article saying, "When the building is on fire, you don't stand by and let the building burn down and say we'll fight the fire another day." So this does not seem to be the lawyer going forward because he strongly believes that his duty is to aggressively litigate his client's case. Rather, he's grandstanding.

The lawyer and his firm Gilbert & Marlowe advertise as "World Famous Attorneys". (I guess Snoopy works there too). Their practice areas (according to their website) are Family Law, Criminal Law, and Personal Injury. They do not seem to have expertise in constitutional law or queer rights. He strangely compares this case with a famous constitutional law case from 1857, the Dred Scott decision, in the AP story linked above. The Dred Scott decision said that all blacks--slaves as well as free--could not be citizens. Huh?

People who actually do queer rights for a living think this case stinks. The clients should be asking themselves if they want to be responsible for a "Dred Scott" decision for the gay rights movement.

Maryland Court Reunites Family After VA Court Ripped it Apart

2006-03-31T18:11:00.000-05:00

A Maryland family court judge this week overturned a ruling that had separated a gay dad and his son from the dad's life partner. Four years ago, a Virginia court said that the three could not live together in the same house. The family then moved to Maryland and were forced to live in separate apartments.

Virginia is one of a handful of states that allows a court to restrict custody based on sexual orientation. The court four years ago based its decision on the "best interest of the child" standard. It seems incredible that the court would have thought that breaking up a household would provide a stable environment for a child. In retrospect, it is obvious it did not since the family was forced to move.

This case was brought by the National Center for Lesbian Rights who have been doing some amazing work in queer family law.

MA: Mixed Marriage Decision for Out of Staters

2006-03-30T10:49:00.000-05:00

The Massachusetts Supreme Judicial Court ruled today that same-sex couples from states that ban gay marriage can not legally marry there. The Court relied on a 1913 law which says that Massachusetts can not marry a couple if the marriage would be considered illegal in the couple's home state.

However, in states like New York and Rhode Island where there is no specific ban on same-sex marriage, the Court remanded the case to a lower court to determine if same-sex marriage is permitted in those states. If so, couples from those states may be able to marry in Massachusetts.

I think it is very likely that the Massachusetts courts will wait until the New York case on same-sex marriage is decided before issuing a final ruling. State courts generally do not like to interpret laws from other states.

NGLTF Speaks Out on Immigration Bill

2006-03-27T23:00:00.000-05:00

The National Gay and Lesbian Task Force criticized the draconian immigration bill being debated this week in Washington in a press release issued today. As I've written about previously, this bill would make undocumented aliens felons AND make it a felony to assist them in any way. Charities and others that provide assistance to undocumented immigrants could be treated as criminals under the law.

If you haven't already, contact your senators about it.

Pew Study Shows Marriage, Adoption Support Up

2006-03-22T14:49:00.000-05:00

A public opinion survey released today by the Pew Center for the People and the Press finds that public attitudes about gay marriage, adoption, and military service continue to show increases in support for gay rights. Public opposition to gay marriage, for example, dropped from 63% two years ago to 51% now. Likewise, support for gays adopting has grown from 38% in 1999 to 48% now.

Looking at the charts in the survey, however, you can see that these shifts are not as significant as the press release would have one believe. For example, the gay marriage numbers peak and drop like a roller coaster more than the ten point shift they describe as "significant". Opposition grew in February 2004 when the Massachusetts Supreme Judicial Court ruled that the state had to marry gays and San Francisco started marrying gays. It then started to drop during the summer of 2004 until it spiked again in the Fall of 2004 when there were anti-gay marriage ballot initiatives in 13 states.

The lesson? Whenever we achieve visibility (either through a major victory or negative campaign ads), there is a strong public backlash against us. As long as we are quiet, discrete, and don't draw attention to ourselves, the public forgets how much they don't like us and begin to soften their attitudes. All it takes to stir up the opposition is something that puts on the front page again. So the "significant" change in attitude during the past two years has more to do with less visibility than with a genuine shift in public attitudes. (But don't think I'm advocating that we NOT be visible--the only victories we have achieved during the past 10-15 years have been because of our visibility).

Public opinion research is also notoriously inaccurate when it comes to gay rights. These surveys are conducted via telephone and a significant portion of respondents don't want to be perceived as bigots, so they say they are in support of gay rights when in fact they are not. Once in the privacy of the voting both, they are free to express their true feelings. One campaign organizer I know assumes that 10% of voters contacted by telephone or in person do this, and adjusts his projections accordingly.

Report Slams Economic, Social Cost of Florida Gay Adoption Ban

2006-03-20T15:05:00.000-05:00

The National Center for Lesbian Rights released a report which looks at the costs of the gay adoption ban. It shows that the state is probably spending millions of dollars it doesn't need to since there are so many gay parents willing to adopt children. It calculates that the cost per child in foster care (and awaiting adoption) can be close to $150,000.

Immigration and Sham Marriages

2006-03-20T14:59:00.000-05:00

ABC News has a story about queers entering into "sham marriages" to evade U.S. Immigration law. The right-wing must be overjoyed that they can now attack two of their favorites--queers and immigrants--in one neat package.

MA Gay Adoption and the Church

2006-03-17T11:32:00.000-05:00

The past several weeks have seen Massachusetts Catholic Charities decide that they would drop a state contract if they had to complete adoption services for gays and lesbians. The Bay State's governor has rushed to their aid, seeking to provide a religious exemption. Massachusetts, in general, has great adoption laws for gays and lesbians so this "exemption" would be a big step backwards.

I've been on the lookout for a report on gay adoption bans from the Pew Research Center for the People and the Press, but all I found was this reference (11th paragraph) to it. If I find it, I will post a link.

Delaware Court: Lesbian Couple Must Share Custody

2006-03-10T15:54:00.000-05:00

The Delaware Supreme Court ruled this week that a lesbian couple should share custody of their children now that they have split up. The ruling affirmed a lower court's finding that the non-biological parent was a "de facto" parent and therefore entitled to parental rights under state law.

BLOGGER'S NOTE: I have been out of the country for the past month and returned yesterday. Thanks for returning to the site now that I'm back.

Bloggers Note: Queer Law Watch is taking a vacation

2006-02-05T16:56:00.000-05:00

Look for QLW to return in March.

Columnist Shows Same-Sex Couples Lack Rights

2006-01-26T19:43:00.000-05:00

A columnist from a Chicago newspaper highlights many of the legal inequities that same-sex couple face. It's a great and simple explanation of why it is so important for LGBT couples to seek the assistance of a lawyer to protect their rights.

MD Judge Strikes Down Same Sex Marriage Ban

2006-01-20T17:03:00.000-05:00

All I had time to read was the first paragraph, but it looks like an initial win in Maryland. (Been working on a case and don't have to time for more today).

Spousal Privilege Denied in Theft Case

2006-01-11T18:41:00.000-05:00

As I wrote about in November, a criminal case on Long Island against a gay school superintendent would clarify spousal privilege law in New York. A judge ruled today that he need not decide whether the spousal privilege law applied to same-sex couples in domestic partnerships because the privilege is not available where both parties committed and discussed the crime at issue.

NJ Opposes Gay Marriage, Strengthens Domestic Partnerships

2006-01-09T22:14:00.000-05:00

New Jersey's state government filed court papers on Monday opposing gay marriage. Meanwhile, the state legislature strengthened the state's domestic partnership laws. Undoubtedly, someone in state government figured doing both on the same day would be a good idea.

The marriage lawsuit will have a hearing before the state's highest court next month. The changes to the DP law will equalize the rights of same-sex couples with married couples in making funeral arrangements. It also will require local governments in New Jersey to provide benefits equally to straight and queer couples.

Cherokee Nation's Highest Court Allows Gay Marriage

2006-01-06T12:22:00.000-05:00

The Cherokee Nation's highest court ruled that a challenge brought by several tribal councilors to invalidate a same-sex marriage could not proceed because the councilors were not harmed by the marriage. In order for a suit to be allowed, the person bringing it must show that they experienced some sort of individual harm. In this case, the councilor claimed that the reputation of the Cherokee Nation would be harmed if the marriage were allowed to stand.

NY Times Details Problems with Immigration Judges

2005-12-27T12:42:00.000-05:00

A New York Times article yesterday shows how frustrated the Federal appeals courts have become with the quality of work from many Immigration Judges. Importantly, the article notes that many Federal judges feel that a huge workload has been shifted from the Board of Immigration Review to the Federal appeals court.

Draconian Immigration Bill Passes House

2005-12-23T11:02:00.000-05:00

A bill that could make felons out of binational couples passed the House of Representatives this week. The measure would make it a crime to overstay a visa or to help undocumented aliens do so. Currently, it is a civil violation to do so.

According to Sarah Sohn at Immigration Equality, an immigrant could be considered in violation of the bill one day after their visa expires or if they forget to inform the government about a change of address. In addition, the bill could lead to jail sentences of up to five years for family members, partners, churches, friends, and lawyers because it redefines "smuggling" so broadly.

While the bill has yet to be introduced in the Senate, it could easily be tacked onto a larger bill, especially since the White House supports it.

Queer Law Watch’s Top Issues for 2005

2005-12-15T14:41:00.000-05:00

There have been a number of changes across the country in areas effect the LGBT community this year. We've seen steps forward and backward and, perhaps more importantly, a broadening of the legal issues where sexual orientation comes into play.

In keeping with my blog's focus on LGBT immigration and family issues, here is my first annual round-up of the five biggest developments in these areas for 2005.

Marriage, marriage, marriage. Whether it was the legislative success in California or the defeat in Texas, same-sex marriage tops my list for the biggest legal development this year. Not only because of the substantial changes it creates to the rights of same-sex couples, but also because I predict that the same-sex marriage issue will be one of the biggest issues in national politics for many years to come.

Parental Rights. Courts in several states--including West Virginia--recognized parental rights for same-sex parents this year. This is an incredibly important development for queer families and their children as it gives more stability and support to same-sex parents. Meanwhile, the US Supreme Court let stand Florida's ban on "homosexuals" adopting.

REAL ID Act & Asylum. Early this year, a new Federal law went into effect which changes the standards used to grant or deny asylum. As I've written about before, the changes will mean many queer applicants will be denied asylum. The main reason why is because the Act allows an Immigration Judge to reject an asylum if there are any discrepancies in an applicant's narrative even when--and here's the important part--the discrepancy is immaterial. In other words, if an applicant first says that he was carrying a brown suitcase but it turns out it was actually black, an IJ can use that discrepancy to determine credibility. While this example is somewhat absurd, it is useful to show how little the drafters of this law understood about refugees and how a story can change over time as they recover from post-traumatic stress disorder.

Trans rights. Suddenly this year, transgender rights hit the mainstream. (Here's a case in point.) There were more resources and more discussion of transgender issues and several positive legal developments. Of course, there were many more legal setbacks, but the point is that trans issues were now coming to the forefront.

LGBT Youth & Schools. High school students this year stood up for their rights in a big way. The Advocate even named high school senior Kerry Pacer their Person of the Year, but examples of young people coming out and being proud were everywhere this year and led to important court victories.

Appeals Court Denies Asylum for Gay Zimbabwian

2005-12-14T17:00:00.000-05:00

A federal appeals court ruled against asylum for a gay man from Zimbabwe Tuesday, saying that he had not experienced past persecution for "being gay" but rather for his conduct which included having sex with two male classmates.

In both instances, the opinion says, there was enough evidence to suggest that the man, William J. Kimumwe, was in trouble with authorities for reasons other than his homosexuality. For example, in the second instance, the court says that Kimumwe was arrested because he had "got [his classmate] drunk...and slept with him", suggesting that the sex was coerced.

Judge Heaney dissented from the majority's ruling, saying that both the majority and the Immigration Judge discounted evidence of past persecution and "mischaracterized" the record. For example, the evidence did not suggest that the sex with his classmate was coerced; rather, Kimumwe's testimony showed that both he and his classmate both got drunk and had sex and that the sex was not compelled in any way. Further, Judge Heaney wrote, "Importantly, the IJ also overlooked Kimumwe's unrefuted testimony that the officers who arrested him made it clear he was arrested for being gay, not for having sex. Thus, the IJ's finding that Kimumwe had not established past persecution based on his status as an openly gay man is not supported by substantial evidence."

Finally, Judge Heaney wrote "Our court ought not sanction the return of an openly gay man to a country whose leader has vowed to rid the country of homosexuals. Zimbabwe's government's past conduct, both generally and with specific reference to Kimumwe, indicates an intent to further persecute him on the basis of his sexual orientation."

The majority's opinion is troubling because it seems to go out of its way to allow the IJ's decision to stand even though it does not appear to be supported by the record. Unfortunately, the trend of late has been to deny asylum applications based on LGBT status even in a case like this where the specific facts of the case and the general conditions of the country would seem to obviously support asylum.

NY Appeals Court Says No to Gay Marriage

2005-12-08T18:51:00.000-05:00

A New York appeals court today overturned a lower court's ruling by Judge Doris Ling-Cohan that would have permitted same-sex marriage in New York. The court said, among other things, that Judge Cohan had overstepped her authority by "rewriting" legislation, something that historically is done by the legislature, not the courts.

Some troubling language in the decision: "Marriage...is based upon important public policy considerations and has been recognized as a fundamental constitutional right.... These considerations are based on innate, complementary, procreative roles, a function of biology, not mere legal rights. '[T]he reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth.'"

As we've known all along, this case is going to New York's highest court, the Court of Appeals, where it will probably be consolidated with several other same-sex marriages cases currently winding their way through the state courts.

Groups File Briefs in Custody Case

2005-12-02T10:57:00.000-05:00

Several groups filed friend of the court briefs yesterday in a Delaware care involving custody of triplets born to a lesbian couple, including Lambda Legal and the National Center for Lesbian Rights.

Gay Asylum Petition Denied for Columbian

2005-11-30T12:11:00.000-05:00

In an unpublished opinion from the 11th Circuit, an appeals court affirmed an immigration judge's (IJ) denial of an asylum application for a gay political activist from Columbia.

Luis Rico applied for asylum based on his political activities in Columbia and his sexual orientation. He filed an initial asylum application on his own and then, 10 months later with the help of an attorney, filed another. The basis for these two applications were different, as he did not mention his sexual orientation in the first application.

Rico explained that he didn't know he could apply for asylum based on sexual orientation--something that even some immigration attorneys are unaware of. Nonetheless, the IJ and the appeals court found that this, along with several other points, were inconsistent and determined that his testimony was not credible.

In an asylum case, credibility is everything. If the IJ believes the applicant and her/his story, then they will usually grant asylum if the law allows it. However, gay asylum seekers often flee their homeland because of being persecuted (often at the hands of uniformed government officials like the police) for their sexual orientation. Isn't it understandable that many do not immediately "come out" to uniformed US agents or judges or other government officials?

It is unfortunate that these credibility standards for asylum seekers have been made even more onerous by the REAL ID Act, which went into effect earlier this year. The drafters of the asylum provisions of the Act obviously had no real understanding of trauma and how an asylum seeker's memory initially can block out the most violent events that lead them to leave their home country.

Same-Sex Right May Be Clarified in a Long Island Criminal Case

2005-11-29T11:03:00.000-05:00

A criminal case involving embezzlement and theft from the Roslyn, Long Island, school district may result in clarification of the rights of same-sex couples in New York. Under current law, same-sex couples can be forced to testify against one another in court while married couples can not. This is called the marital privilege.

In the case from Roslyn, the gay superintendent of the school district is accused of stealing millions from the district. His partner has now made a deal in exchange for testifying against him. The superintendent's lawyers have countered that the state's martial privilege law should be read as gender-neutral, thereby blocking the testimony.

If same-sex couples are to be treated as equals to opposite-sex couples, then the right outcome here is to block the testimony. The criminal case against the super does not rest entirely on the testimony of his partner, so they'd still be able to make the case.

The district attorney will likely fight to keep the testimony in. The testimony, if allowed in, will give the super the right to appeal and possibly overturn a conviction, especially if the state's marriage cases are decided successfully by then.

Texas May Follow Kansas in Trying to Ban Gay Adoptions

2005-11-17T17:55:00.000-05:00

Now that Texas joined 18 other states in passing an anti-gay marriage amendment to its state constitution, activists on both sides are figuring out their next steps. A journalist from an Austin paper muses on what may come next for Texas and concludes that Texas may follow Kansas' lead in trying to ban gay adoption, among other things.

Gay Immigration and Latinos

2005-11-15T14:16:00.000-05:00

There's a great op-ed in the Detroit News about the effect of anti-gay policies on gay latinos.

Washington State Protects Same-Sex Parental Rights

2005-11-09T10:34:00.000-05:00

Washington State's highest court held last week that same-sex parents who agree to have a child have the same rights and responsibilities as an adoptive or biological parent.

This ruling is incredibly important for same-sex couples that have not gotten around to formalizing their parental rights through a second-parent adoption. Same-sex couples should not rely on a ruling like this, however, to protect their rights. They should talk to a lawyer and become legal parents of the child as soon as possible if it is allowed in their state.

Safire's Gay Column, Why I Use "Queer"

2005-11-07T13:32:00.000-05:00

William Safire's "On Language" column looks at how to refer to gay men and lesbians. He dismisses the term "homosexual" (one which I find so antiquated as to be borderline offensive) but does not continue on with the rest of the LGBT acronym. (Bisexuals, transgendered people).

I, for one, have never liked the alphabet soup--some groups include "two-spirit" (LGBTTS) and even "questioning" (LGBTSQ) when talking about the community. Yet it is important to pick a term that is not sexist (gay) and recognizes the fluidity of sexuality. That's why I prefer the all-inclusive queer.

NY Marriage: New Paltz Mayor Update

2005-10-29T13:06:00.000-04:00

A state appeals court ruled against New Paltz Mayor Jason West this week in his effort to overturn an injunction that prevents him from performing any more same-sex marriages. Even though the press classified this as a loss for our side, the truth is this case did not examine the constitutional issues that have been presented in other cases. In fact, the court said that:

We reiterate that we take no position in this case as to whether West's views on redefining marriage may ultimately find favor with the Legislature or in a properly brought court case. Nor is the constitutional issue one for which there is no viable means of obtaining expeditious judicial review. The issue has already been properly presented in several lower courts in this state (see Seymour v Holcomb, supra; Hernandez v Robles, supra; Matter of Kane v Marsolais, Sup Ct, Albany County, Jan. 31, 2005, Kavanagh, J.; Samuels v New York State Dept. of Health, Sup Ct, Albany County, Dec. 7, 2004, Teresi, J.), and appeals from those decisions are currently pending.

This case is a setback for Mayor West as an individual, not for the overall success of the gay marriage lawsuits in New York.

New Study on Bi-National Same-Sex Couples

2005-10-28T11:14:00.000-04:00

A new study from UCLA examines bi-national same-sex couples and has some interesting findings. (Since US immigration laws do not recognize same-sex couples, bi-national couples are often in a legal limbo where one partner is at risk of deportation).

In four out of five bi-national same-sex couples, the noncitizen comes from a country which, like the US, does not recognize same-sex immigration rights. In many of these couples, the citizen is naturalized and comes from the same country as the noncitizen (30%).

You can read more here.