New England School of Law OUTLaws

GLAD has just announced its spring internships. Information below.
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JOB DESCRIPTION AND INFO ABOUT GLAD:

Gay & Lesbian Advocates & Defenders (GLAD) is New England’s leading legalrights organization dedicated to ending discrimination based on sexualorientation, HIV status and gender identity and expression. GLAD iscurrently looking for interns for the 2006 Spring Semester. Below are jobdescriptions associated with the current intern openings. For full jobdescriptions and more information about GLAD, you can access our website atwww.glad.org.

PUBLIC AFFAIRS & EDUCATION INTERN
Public Affairs and Education Interns will assist the department in itsefforts to communicate GLAD’s groundbreaking legal victories to the publicand to make certain that LGBT and HIV-positive people are aware of and canexercise their legal rights. Interns will monitor media coverage of GLADand our issues, assist with outreach to the press, help research and writeeducational material for print and web publishing, maintain resource filesand coordinate educational forums. In addition, interns will represent GLADat community events and may spearhead specific projects aimed at increasingawareness of GLAD and our services.

Please send resume and cover letter to Emily Douglas at edouglas@glad.orgfor Public Affairs intern position.

DEVELOPMENT INTERN/ADMINISTRATIVE
The intern in this position will play an important role in raising fundsthat enable GLAD to meet its mission of ending discrimination against LGBTpeople. This is a great opportunity for someone who wants to have an impacton these issues in a very practical way. Responsibilities of this positioninclude assisting with mailings, drafting correspondence to donors,designing and producing newsletters and publications, conducting prospectresearch, attending donor receptions and fundraisers, and databasemanagement.

Please send resume and cover letter to Brianna Boggs at bboggs@glad.org forDevelopment Administrative position.

DEVELOPMENT INTERN/SPECIAL EVENTS
The intern in this position will play an important role in raising fundsthat enable GLAD to meet its mission of ending discrimination against LGBTpeople. The special events intern will have the opportunity to assist theDevelopment Department in planning special events and will also beresponsible for aiding in mailings, telephone solicitation, auction planningand procurement. In addition, this position will edit solicitation lettersand perform data entry/database management.

Please send resume and cover letter to Robbie Samuels, MSW, at rsamuels@glad.org for Special Events position.

Hours: Intern positions are full or part-time for a semester or full yearand are unpaid.

Dependability is a must.

Location: GLAD is easily accessible by T between Park Street and DowntownCrossing.

GLAD is located at 30 Winter Street, Suite 800, Boston, MA 02108
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Yikes. A proposed bill in the Indiana General Assembly would outright bar lesbians (and any women who can't prove their participation in church or faith-based activities, amont other requirements) from accessing reproductive technology, such as artificial insemination. This isn't a question of state funding - this would completely deny lesbians access to certain medical services.

I haven't found the full text of the bill, but check out some of the reported details here.

UPDATE (10/5/05): Here's the link to HFC004.

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UPDATE (10/6/05): "The issue has become more complex than anticipated and will be withdrawn from consideration by the Health Finance Commission," she said.

State Sen. Patricia Miller's entire statement regarding dropping the proposed bill.
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New Jersey's domestic partnership law, which took effect in July 2004, provides some of the legal rights of marriage to same sex couples who register. Included are hospital visitation, some state tax benefits, and some benefits to state employees. It is silent, however, on the issue of inheritance and intestacy.

This silence is now being argued as not excluding inheritance by a registered domestic partner whose spouse died without a will. Betty Jordan and Rene Price registered as domestic partners in late 2004. They had been together for 19 years when Price died this past July. Their house, car and bank account had all been in Price's name, and she unfortunately did not leave a will. Under NJ law, the surviving spouse in a married couple inherits the estate if the decedent was intestate. The state has determined that this particular facet of the law does not apply to registered domestic partners. Jordan is challenging the interpretation of the domestic partner legislation. She is currently still in residence at the home and is using the car, however.

The lessons to be learned in the meantime? Don't believe it when those who opposed marriage equality but offer civil unions or domestic partnership registries as the legal equivalent. They're not. And as long as states and the federal government can choose not to recognize another state's legal marriage, civil union or domestic partnership system, even those rights aren't guaranteed.

Finally - think you don't need a will, or not yet at least? Think again.
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The joint meeting of the state legislature has voted 157-39 against forwarding to the voters the proposed constitutional amendment that would bar same sex marriage but establish civil unions. The amendment passed last year 105-92 after days of heated and emotional debate, but needed to pass again this year in order to proceed. The debate on the issue this year was less than two hours.

Next up: The citizen's petition seeking to place a ballot question before the voters that would bar marriage equality, bar civil unions, and nullify existing marriages between same sex couples. The question's backers must collect 65,825 signatures before it can be brought before the legislature. A citizen's petition must be approved by 25% of the legislature in two sessions before it can go to the ballot, so the earliest we might see this at the polls is November 2008. But hopefully it will fail well before then.
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Now that Britain has dropped its ban on gay men and lesbians serving openly in the military, and now that Britain also has a civil union registry open to same sex couples, the Ministry of Defense has taken the next step and has opened up military housing, along with all other marriage-related benefits, to same sex couples who have registered their civil unions.

The United States, meanwhile, is getting ready to appeal a Third Circuit injunction against enforcement of the Solomon Amendment, which bars institutions of higher education from receiving federal funds if they don't provide access to military recruiters on campus. Many schools object to the US military's don't ask, don't tell policy which bars gay men and lesbians from serving openly. In Rumsfeld v. Forum for Academic and Institutional Rights, a group of law schools challenged the Solomon Amendment as an infringement of their rights to free expression and association. The case is scheduled for argument on December 6, 2005.
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Former Massachusetts Governor William Weld, now a contender for governor of New York, stated during a meeting with New York Republican party officials that:

...although he supports "100 percent equality of rights" he would not favor gay marriage because the idea offends many New Yorkers.

He also stated that unless he wins the governor's spot in New York, he no longer wishes to be addressed as "Governor," and that just "Mister" will do just fine.

Well Mr. Weld, I'm pretty sure there are a good number of voters in New York who are offended by the idea of a gubernatorial candidate catering to those who find equality offensive.
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A 17-year old honors student has filed suit with the ACLU against Garden Grove Unified School District for allowing discrimination and harassment. Last year she was told by the school that either she or her girlfriend would have to transfer to a different school because they kissed on campus. She had previously been suspended for a week because the two had hugged on campus. That suspension cost her a spot on the National Honor Society.

Charlene Nguon is in the top 5% of her class and takes several AP and other honors classes, but was forced out of the school for the same behavior that goes on each day by straight teen couples. After the ACLU contacted the district on Nguon's behalf this summer, she was allowed to return to her school, but with no assurances against similar disciplinary actions.

The complaint and statements from the parties can be found at ACLU of Southern California.
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California's elected Senate and Assembly passed legislation this week establishing marriage equality in the state of California. I mentioned in an earlier post that Gov. Schwarzenegger seemed to be changing his mind from his earlier statements that same sex marriage would be "fine" with him if established by court ruling or legislative action. Of course, that was when legislative attempts hadn't been successful, and a state high court ruling was perhaps years away (perhaps even past the time of the next election).

Now that an actual law has been presented to him, it's a different story. The governor announced last night that he will be vetoing the bill, and stated that the legislature's actions are in conflict with ballot initiative Prop 22, which bars California from recognizing out of state same sex marriages. Speaking once more through his press secretary:

"We cannot have a system where the people vote and the Legislature derails that vote," Thompson, said. "Out of respect for the will of the people, the governor will veto (the bill)."

Earlier this week the potential justification given was that the question is before the courts, "where it belongs." Which is it? Should this question be resolved by ballot initiative, by the courts, or by the elected legislature? It seems that the answer for antimarriage activists is that the answer should be found by whatever body doesn't favor equality.
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The California Assembly late last night passed the Religious Freedom and Marriage Protection Act, which provides for marriage equality, while specifically stating that no religious group opposed to same sex marriage has to provide the ceremony.

The state senate already passed the legislation, so now it awaits Gov. Schwarzenegger's signature. Last year the governor stated that marriage equality would be "fine by me" if the state courts ruled on it or the legislature passed it.

His press secretary however, yesterday responded to the legislation and inquiries about whether the governor would sign it, by stating,

"The governor believes that the people spoke when they voted in Proposition 22,'' which defines marriage as the union of one man and one woman, Thompson said. "t's now before the courts, which is where the governor believes it belongs. He will uphold whatever the court decides.''

That doesn't sound like "fine by me." That sounds more like, okay, the legislature passed it, but let's hold off as long as possible by waiting for a court decision.

When Massachusetts courts ruled on marriage equality, the big push was that they were activist judges who should leave the lawmaking to the legislature - the elected representatives of the people. Now that California's elected representatives of the people have done their job, now it's up to the courts?

A proposed constitutional amendment to bar both marriage equality and the state's domestic partnership registry is making the rounds in California. I guess that way even if both the courts AND the legislature decide on equality, those who oppose it still have a chance to push their nonequality agenda.
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The Policlinico hospital in Milan is under investigation by Italy's minister of health after turning away a blood donor after he stated that he is gay. Italy in the past had a blanket prohibition on men who had ever had sex with another man, but now the policy bars individuals who have had more than three sexual partners in the previous 12 months. Sexual orientation is not to be considered.

The hospital is relying on the "room for discretion" in the law, and maintain that their internal policy of barring anyone man who has had sex with another man in the previous five years as permissible.

United States policy bars men who have sex with any other man at any point since 1977. It also bars anyone who has ever exchanged sex for money or drugs. Anyone who has had sex in the last 12 months with anyone who would be barred for these reasons is also deferred.
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Now that Pres. Bush has modified his previous Roberts nomination to be Judge John Roberts, nominee for Supreme Court Chief Justice, we're back to our earlier question: who will he nominate to replace Justice O'Connor?
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Last year a Virginia judge ruled in a custody case that the commonwealth did not have to acknowledge a custody judgment from Vermont, since that custody decision stemmed from a dissolved civil union, which Virginia law does not recognize.

The couple was originally from Virginia, but traveled to Vermont to obtain a civil union, then returned to Virginia. They had a child through artificial insemination, then later relocated to Vermont. About a year later they filed for a dissolution of their union. Lisa Miller, the birth mother, returned to Virginia with their daughter, while Janet Jenkins remained in Vermont. The Vermont court handling the dissolution has granted Jenkins visitation based on her parental status as the parent of a child of a civil union. Miller both appealed the Vermont judge's ruling, while also filing in Virginia court to have herself declared the child's sole parent, and to terminate Jenkins' visitations. The Virginia court did just that. The battle continued, and the Vermont Supreme Court will be hearing Miller's appeal this week, and the Court of Appeals of Virgina will hear Jenkins' appeal next week.

Of note is that both sides are waving federal laws to support their cases: Miller's attorney is relying on DOMA to support the claim that Virginia is not obligated to recognize the relationship or the judgments related to dissolution, while Jenkins' attorney is relying on the Parental Kidnapping Prevention Act (PKPA), which mandates that when a parent tries to override one state's custody decision by filing later in a second state, the first state's judgment must be honored.

The Vermont cases (they have two being heard on September 7 at 11:00 am) are 2004-443 and 2005-030, Lisa Miller-Jenkins v. Janet Miller-Jenkins.

The Virginia case (will be heard on September 14 during the 9:00 am session) is 2654-04-4.
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Supreme Court Chief Justice William Rehnquist died yesterday of thyroid cancer, after having been diagnosed with the disease last fall. Already the United States is preparing for the confirmation hearings for Judge John Roberts, nominee to replace the retiring Sandra Day O'Connor. Judge Roberts' nomination has been decried by many progressive groups, including Human Rights Campaign.

Now with the Chief Justice position vacant, Pres. Bush will have the opportunity to exert even stronger and longer-lasting influence on the high court. The president has frequently stated his admiration for sitting Associate Justice Antonin Scalia, and it will not be a surprise to see Justice Scalia heading for nomination hearings for the center chair. The president will then select a nominee for Justice Scalia's vacant position. Justice Scalia is no friend of the gay and lesbian community, nor of most progressives in general. He holds the constitution out as a stagnant document that must be applied in terms of 18th century thought and understandings of society, rather than as a series of guiding principles designed to evolve and grow as does society. His most recent controversial remarks came just last week at Chapman University in California.

Fasten your seatbelts, we're in for a bumpy ride.
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Once again a proposed marriage limitation amendment to North Carolina's constitution has failed even to come to a vote. North Carolina does have a DOMA in place, but the constitutional amendment's backers have stated their intention to try again in the spring.

Closer to NESL, remember that September 14 is arriving shortly, and with it the next convening of the Massachusetts constitutional convention, at which they'll be considering and voting on the proposed amendment here. If it passes this round, it goes to the voters in 2006. NESL OUTLaws is joining up with some other area GLBT law student groups to be a presence outside the State House during the day. Contact me if you'd like to take part, and I'll send you the info.
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In a demonstration of building bridges, NESL OUTLaws are teaming up with the NESL Christian Group to put on a bake sale, with all proceeds going to the Red Cross to assist with their hurricane relief efforts.

The event will be this coming Tuesday, 9/6, from 11:30 to 6:30 in the NESL main lobby. So stop on by and have some treats for a good cause, and to say hello.

OUTLaws members - can you contribute baked goods or some time staffing the table? Contact me!
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Yesterday Massachusett's House Speaker Sal DiMasi predicted that the proposed amendment against marriage equality will not pass when it comes to a vote at the constitutional convention in September. A number of reasons contribute to this prediction, including last year's election results, in which no supporters of marriage equality lost their seats, some of the anti-marriage incumbents lost, and some new supporters won. Then there's the proposed ballot initiative, which many marriage foes prefer since it does not establish civil unions as an alternative to marriage. Finally, there's the fact that same-sex couples have been getting married in the state for over a year now, and the sky has yet to fall. Some legislators have commented recently that they've changed their minds after seeing so many couples enter into marriage and create a more stable union, so to speak.

The whole machination of this amendment is mind-boggling, and has created strange alliances. The amendment is known as the Travaglini-Lees amendment, as it was fashioned by Senate President Robert Travaglini and Senate minority leader Brian Lees. The amendment bars same sex marriage but authorizes civil unions. This particular amendment passed largely due to the votes of many marriage equality supporters who voted for this amendment rather than have an even more restrictive one pass, which would not recognize civil unions (similar to the ballot initiative currently being reviewed by the Attorney General). The general thinking at the time it passed was that it probably wouldn't pass a second time around, since no one really likes it. People who support marriage equality don't like it because it would take away the marriage right, while those who don't support marriage equality don't like it because they in general also don't support civil unions or any other form of recognition of gay relationships.

Sure enough, now that this ballot initiative has been introduced, many of the legislative supporters of the Travaglini amendment have expressed their intent to abandon ship, to give their support to the more hard line citizen's petition.

But not so fast! The ballot initiative hasn't yet been given the yay or nay by Attorney General Tom Reilly. The deadline for decision is a week before the constitutional convention. This thing's a mixed bag. On the one hand, many are urging him to reject it as unconstitutional (see yesterday's post). And it would be good not to have this backwards-moving potential amendment floating around, just biding its time before going to the ballot to have the electorate vote on whether to discriminate against a minority portion of the population. On the other hand, if Reilly rejects it, many of the legislative supporters of the initiative have stated they'll likely support the amendment, as it's the only thing they'll have left. Representative Philip Travis (an ardent foe of marriage for same sex couples) went so far as to say, "[It] will have to be supported, because there will be nothing to protect marriage." From where I sit, the only marriages being threatened are ones like mine, and he's one of the threats.

So I guess the moral is this - don't be comforted by Speaker DiMasi's predictions. Get out there in the next few weeks and make your voices heard by your representatives. And be sure your voice is a voice of reason, justice and equality. Let the other side take the role of shrill, angry, unreasonable, hostile and illogical protest. Let them be dismissed, not us.
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Aruba's Superior Court has ordered that the government must register and recognize the Dutch marriage certificate of lesbian couple Charlene and Esther Oduber-Lamers. Charlene is a citizen of Holland, while Esther is a citizen of Aruba. Both countries are autonomous republics but part of the Kingdom of the Netherlands (along with the Dutch Antilles). All members of the Kingdom must recognize each other's legal documents, but Aruba is refusing to do so, stating that it would violate Aruba's civil code and morals.

Aruba's government plans its final appeal (this decision was after appeal from a similar decision at the lower court), which is to the Supreme Court of Holland. Meanwhile, the couple has relocated to Holland after being harrassed for trying to register their marriage. Also, Aruba's immigration laws only allow Esther to remain on the island for 6-months per year, and do not allow her to receive health benefits from Charlene's government employer, without their marriage being recognized. She would also likely not be allowed custody of her 2-year-old biological child, who was born to Esther from an egg harvested from Charlene (see this post for related story in California).
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The second Constitutional Convention to consider the proposed MA constitutional amendment to bar marriage equality (while instituting civil unions for gay couples) has been scheduled to commence on September 14. The proposed amendment passed last year after an intensely debated and highly emotional convention which drew throngs of people who voiced their opinions on both sides of the issue. The exact same amendment must pass again at this convention if it is to proceed to the ballot in November 2006.

By that point, marriage equality will have been a fact of life in Massachusetts for two and a half years (plus the 6 months between the decision in Goodridge in November 2003 and its going into effect in May 2004).

In other news, the September 7 deadline is looming for state Attorney General (and gubernatorial hopeful) Tom Reilly to certify or reject a citizen-proposed ballot initiative that would bar marriage equality with no allowance for civil unions. If he certifies the question, supporters would need to collect 66,000 petition signatures, then pass two consecutive legislative sessions (as do legislatively introduced amendments) before going to the ballot in November 2008.

Many argue the ballot initiative is barred by the state constitution as it would overturn a judicial decision, and because of its similarity to another initiative which failed in 2002 (an initiative cannot be certified if it is "substantially the same" as any other certified in the previous two election cycles).
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Summer's over, school's begun. Time to start posting more frequently. Serendipity struck this morning, when on my way to work I heard on NPR that yesterday the California Supreme Court ruled on three cases involving separated lesbian couples and their parental rights. I posted on one of these cases last year, here and here.

In that case (K.M v. E.G.), the California appeals court had affirmed the lower court decision that the biological mother who had had her eggs harvested for fertilization and implantation in her partner, who then gave birth to twins, had waived her parental rights as part of the egg harvesting process and therefore had no parental rights to her children, to whom she was not only biologically related but had parented for years prior to the couple's separation.

The California Supreme Court yesterday overturned that decision. The three decisions add up to an equalization of the law between heterosexual and lesbian couples when it comes to parental rights and reproductive technology (these cases all involved lesbian couples in which one partner became pregnant through a joint decision - unknown if or how the rulings might be used in cases involving gay men who coparent). Basically, the court held that when a lesbian couple decides jointly to have a child, their later dissolution of their relationship will not dissolve any parental rights or responsibilities of either partner, whether or not the couple had registered under California's domestic partner registry system.

The three cases were K.M. v. E.G. (above. Case summary. Opinion.), Elisa B. v. Emily B. (the nonbiological ex must pay child support. Case summary. Opinion.) and Kristine H. v. Lisa R. (the ex may not invalidate a previously made declaration of parental rights. Case summary. Opinion.).
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UPDATE (8:35): I attended the national convention of the American Constitution Society at the end of July. The video of one of the panels, "Sexual Orientation and the Battles over Adoption, Custody and Foster Care," is available at the ACS National website. It was a lively panel that included Judge Rosemary Barkett (dissented in the 11th Cir. Court of Appeals decision upholding Florida's ban on adoption by gay or lesbian individuals or couples), Matthew Coles of the ACLU's Lesbian and Gay Rights Project, Prof. Lynn Wardle of Brigham Young University Law School , Prof. Kenji Yoshino of Yale Law School and moderator Prof. Suzanne Goldberg of Rutgers School of Law - Newark. Check out the video if you have some time available.
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UPDATE (8/25/05): Interesting article on these decisions and how anti-gay groups are now arguing against "the best interests of the children."

Also, a similar case was argued before the Supreme Court of Washington earlier this year, but the decision has not yet come down. The case is In re parentage of L.B.; Sue Ellen (Mian) Carvin v. Page Britain, and is an appeal from 121 Wash.App. 460. In this case the nonbiological mother of a child conceived by mutual agreement and raised together was denied visitation or joint custody after the couple's breakup. The lower court dismissed her action seeking establishment of parentage, and the appeals court reversed and remanded in that she can petition for shared parentage or visitation, and also for visitation under a third-party statute. HRC has a concise rundown of Washington's laws guiding the courts in custody decisions.
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Governor Romney, who has not been shy about his disdain for marriage equality or same sex parents, is angering town and city clerks again by advising hospitals to manually alter birth certificates issued to lesbian couples when one of them has given birth. The clerks have been receiving birth certificates from hospitals with the word "Father" crossed off, whited-out or highlighted with an asterisk, and replaced with the phrase "Second Parent."

You may be thinking, "Hey, what's wrong with that?" Marriage licenses have been changed now to say Party A and Party B, isn't this just an extension of equality?

The problem is that the official marriage license forms were changed at the printer. Nothing is struck out or altered. This change was done after Goodridge, with no specific legislation ordering that it be done. Romney now claims that he cannot order a change in the official birth certificate form without specific legislation ordering that it be done. This is a similar argument to the one he made in support of his pulling out the 1913 law barring couples from marrying in Massachusetts if their marriage would not be recognized in their home state.

With the birth certificates having been altered from their issued format, their legitimacy can be called into question by anyone to whom the recorded certificate is presented as identification or proof of parentage. By telling hospitals to alter the official birth certificate forms, the governor has both undermined the legal standing of legally recognized same sex parents and strengthened his own standing should anyone question his conservative values in any expected future presidential campaign. This is the same man who not so long ago vehemently called for John Kerry to resign his US Senate position because he was campaigning in a presidential race. He stated that Sen. Kerry could not adequately fulfill his obligations to his Massachusetts constituents while simultaneously courting a national audience.

Perhaps the governor should heed his own words instead of causing harm to the states' citizens in an effort to build his own political reputation.
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NESL OUTLaws now has our own TWEN board! You have to be a registered Westlaw user, with New England School of Law. Just go to TWEN, select Drop/Add Courses, and select the OUTLaws course. We'll still be maintaining our Yahoo! board, which is open to the general public, but the TWEN board will provide us lots of new tools to use for organizing OUTLaws over the course of the year. I've added a link to the TWEN site in the links section on the right-hand sidebar.

I'm looking forward to a successful 2005-2006 year for OUTLaws!
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