LGBTQ

Marriage Equality in New Jersey Following Court Battle

/ Matthew McKeon / Leave a comment

On Monday, October 21, Chris Christie ended his fight against the state judiciary to prevent the legalization of same-sex marriage in New Jersey; at 12:01a.m. the next day, same-sex couples were permitted to marry.  The drive for marriage equality in New Jersey was by no means an easy one: legislative and judicial initiatives both faced setbacks and opposition at every step.

The legal battle for marriage equality culminated in the New Jersey Supreme Court’s decision in Garden State Equality v. Dow, handed down on Friday, October 18.  That case began in 2011 when the Garden State Equality group and a number of same-sex couples filed a lawsuit in Mercer County’s Superior Court.  The presiding judge at first dismissed the case, but then rescheduled it for trial.  On July 3, 2013, plaintiffs filed for summary judgment in the Superior Court of New Jersey; Judge Mary Jacobson granted the plaintiff’s motion on September 27, 2013.

Judge Jacobson’s opinion in part focused on a development that will likely affect all future lawsuits challenging same-sex marriage bans: United States v. Windsor.  In Windsor, the Supreme Court of the United States struck down Section 3 of the Defense of Marriage Act (DOMA), holding that the federal government’s failure to recognize same-sex marriages legally performed in states violated the Equal Protection Clause of the Fifth Amendment.  United States v. Windsor, 133 S.Ct. 2675, 2693 (2013).

In Garden State Equality, Judge Jacobson determined that  New Jersey’s own equal protection provisions must now be re-examined “in light of the changed circumstances brought about by Windsor.”  Garden State Equality v. Dow, 2013 WL 5397372 (N.J.Super.L.), 20.  After a thorough analysis of both parties’ arguments, Judge Jacobson concluded that New Jersey’s denial of marriage licenses to same-sex couples violated the equal protection provisions of the New Jersey constitution.  Id. at 24.

After the Judge Jacobson denied Gov. Christie request for a stay pending  appeal to the state’s appellate courts, he immediately appealed to the New Jersey Supreme Court. This marked Christie’s second attempt to stymie progress towards marriage equality: in 2012, Christie vetoed a bill passed by the New Jersey legislature which would have permitted same-sex marriage.  On October 18, the New Jersey Supreme Court provided the blunt governor with a blunt answer: it would not grant a stay because it would almost certainly affirm Judge Jacobson’s ruling.  The court determined that same-sex couples could apply for marriage licenses immediately, and Gov. Christie decided to end his legal fight.

What is the significance of this legal victory for marriage equality advocates?  First, it shows that Windsor will be used by state judiciaries to invalidate denials of marriage access to same-sex couples.  Second, it shows a very curious path forward for Gov. Chris Christie and the Republican Party as a whole.  Christie will almost certainly run for president in 2016, and what sets him apart from other prospective candidates is his pragmatic rather than ideological approach to issues.

Thus, Christie’s decision to end his legal efforts against same-sex marriage was entirely keeping with his character: it does not betray any change of heart regarding marriage equality, it instead shows that he saw the writing on the wall: the state supreme court would rule against him sooner or later.  By dropping his appeal, Christie has burnished his “moderate” appeal, especially compared to other probable 2016 contenders like Marco Rubio and Ted Cruz.  While ending a losing fight might seem logical rather than laudable, Christie nonetheless has positioned himself as a realist devoid of the self-destructive bent towards ideological purity that pervades the Republican Party. While Christie’s political future is not certain, one thing is: as a result of Christie giving up, New Jersey’s same-sex couples are enjoying the benefits of legal marriage earlier than expected.

Immutability and LGBT Asylum

/ Eric van der Vort / Leave a comment

There are long-standing debates about the causes of homosexuality, if indeed any exist.  Though the most current research of which this author is aware suggests that, rather than being the result of any one factor (e.g. a single genetic cause), it may be a confluence of factors, the more important and, in my view, the more interesting fact is that the biological, sociological and psychological underpinnings of sexual orientation and gender identity have important ramifications for legal and policy debates about how governments should deal with sexuality.

As the Western world has embraced the rights of gender and sexual minorities with surprising alacrity, one issue that has confronted several governments has been immigration of members of these identity communities.  Particularly as domestic rights have expanded in some countries while others have remained discriminatory or hostile toward LGBT individuals within their borders, questions of immigration and asylum have sometimes become quite prominent.  While many Western states have (relatively) clear standards for those seeking asylum on the basis of discrimination or persecution in their home countries, these standards often require that individuals be members of particular ethnic, racial or religious groups that are easily idenified, quantified and understood.  The pursuit of asylum status on the basis of sexual orientation and gender identity can be more complex because of the standards in law about what precisely counts as an identity.

A related example is somewhat instructive: in American equal protection jurisprudence, the most stringent standards for equal protection adhere to classifications making use of groups that fall under a suspect classification.  Some of the criteria that serve to qualify a group for this ‘suspect classification’ status include (1) a history of discrimination, (2) an immutable or highly visible characteristic, (3) political powerlessness and (4) no relation between the classification in question and the ability to contribute to political, economic and social life.  When a group is considered a suspect class, any legal classification using that category of persons is subject to strict scrutiny.  Legal classifications in the U.S. that currently meet this standard include any making use of race, national origin, alienage and (by some interpretations) religion.  Each of these four classifications shares some level of the above criteria, but one above all others stands out as uniting them: the immutability of the classification.  Immutability in American law is an essentially biological characteristic: individuals have no control over the circumstances of their birth and, thus, legal classifications that rely on such groupings are invalid.

In light of this immutability doctrine, one can begin to tease out the logical difficulty of treating sexuality as a suspect classification.  Assuming an acceptance of this particular scheme (developed by the Supreme Court over several decades), sexual orientation and gender identity do not seem to match the requirements.  While other characteristics may be subject to debate (histories of discrimination, political powerlessness and so on), there is something about sexuality which remains harder to pin down and quantify in easy terms.  Even birth gender, which stands as a quasi-suspect classification, is a matter of biology, at least in law.  The fluidity of sexuality and gender identity lead some observers to conclude that they cannot serve as the basis of any kind of suspect classification, thus requiring either a separate legal standard or no legal protections at all, at least any more than is afforded to any other group.

This brief foray into constitutional law is instructive to the matter of LGBT asylum seekers and refugees.  While the United States and other Western countries have accepted claims for asylum on the basis of discrimination and persecution because of sexual orientation and gender identity, this remains one of the areas where bureaucracies continue to have some difficulty.  Petitions have been denied in the United States and United Kingdom in recent years, and the issue has risen again as groups have pressured governments in the West to open doors to Russian asylum seekers.  This has challenged bureaucrats, who are tasked with distinguishing between individuals genuinely seeking asylum and those who are simply seeking entry to a particular country with “false” claims.

A recent report by the Home Affairs Committee in the United Kingdom has shed light on the situation facing LGBT asylum-seekers not only in the U.K. but elsewhere.  The BBC reports that some asylum-seekers in the U.K. have, because of seemingly skeptical officials, resorted to submitting evidence of same-sex sexual behavior to ‘prove’ their sexual orientation or gender identity as evidence for their asylum petitions:

The report said: “The battleground is now firmly centered in ‘proving’ that they are gay. In turn, this has led to claimants going to extreme lengths to try and meet the new demands of credibility assessment in this area, including the submission of photographic and video evidence of highly personal sexual activity to caseworkers, presenting officers and the judiciary.”

The committee said: “We were concerned to hear that the decision making process for LGBTI applicants relies so heavily on anecdotal evidence and ‘proving that they are gay’.”

It added that “it is not appropriate to force people to prove their sexuality if there is a perception that they are gay. The assessment of credibility is an area of weakness within the British asylum system.

Such reports, if accurate, are highly troubling for those of us concerned with the rights of gender and sexual minorities.  They reflect a return to a way of thinking that places weight not on an individual’s identity but on an individual’s actions, the propensity toward (and actualization of) same-sex sexual desires or “genuine” evidence of gender non-conforming behavior and identity.  As sexual orientation is not, like the immutable characteristics comprehended by the U.S. Supreme Court, a highly visible characteristic and may in fact be fluid, the weight of an asylum seeker’s identity may be placed on actual conduct.  Much of the work by the LGBT community and its allies has been to reject this older, arguably outmoded view of sexuality.  Yet it seems that some asylum-seekers are doubly burdened, having to prove discrimination or persecution and having to prove that the basis of that discrimination is in fact real.

Representing the LGBT Community

/ Eric van der Vort / Leave a comment

Towleroad has a round-up of recent discussions that have centered around members of Congress (MCs) who are members of the LGBT community, yet have voted against generally liberal or progressive positions (most recently voting with the GOP majority in the House to ‘shut down’ the government).  This has led to a good deal of debate about the disconnect between LGBT elected officials and the putatively progressive community they are part of.  Michaelangelo Signorile describes the voting behavior in question:

Since taking office, Sinema has voted with the GOP against economic justice issues that progressives, including LGBT activists, view as crucial. Both she and U.S. Rep. Sean Patrick Maloney (D-N.Y.), an openly gay former Clinton aide, also elected for the first time in 2012, have voted with big banks and Wall Street time and again. Right out of the gate, Maloney, who took a lot of Wall Street money, voted with the GOP on the debt ceiling early this year, and actually co-sponsored a bill that would roll back reforms of the very Wall Street practices that led to the economic collapse. He even voted with the GOP to take authority over the Keystone XL project from the president. Like Sinema, he also voted to jeopardize Obamacare or shut down the government. And he too was supported in his election campaign by the Gay and Lesbian Victory Fund, the Human Rights Campaign, and other gay and progressive groups, touted as a progressive.

The assumptions behind the idea that Sinema and Mahoney should vote in accord with liberal or progressive values are, I would argue, fairly faulty.  At the core of this argument is an assertion that there is a connection between liberal or progressive values, on the one hand, and LGBT identity on the other.  While it is true that there is a tendency in the LGBT community to vote for Democrats and Democratic candidates, this is hardly a universal trait and, more critically, is a poor measure for the whole panoply of political attitudes.  Party ID is a useful but blunt measure for policy preferences.  For example, some measures show that in the most recent presidential election, LGBT voters favored President Obama 3 to 1. However, polling done prior to the election indicates that much of this may have more to do with Obama’s favorable stances toward LGBT issues rather than universal approbation of Obama’s or Democratic policies more generally.  As just a few examples: 60% of respondents in the Logo TV poll report supporting the Affordable Care Act while approval ratings among LGBT voters are higher than the general population, but, aside from gay rights issues, the approval ratings for Obama’s handling of health care, general economic issues and unemployment/jobs each hovers around the 60% mark.  These results indicate that perhaps 2/3 of LGBT voters are support or are in agreement with Obama and the Democrats on important issues of the day.

The White House’s record on LGBT rights in general has been strong.  It is equally indisputable that, over time, the Democratic party has grown more friendly to the LGBT community than the Republican party.  The connection that Signorile and others bemoan between liberal or progressive values and LGBT voters, citizens and representatives is not created by attitudes on economic issues, foreign policy and so on.  Rather, as political scientist Kenneth Sherrill has argued, what may be driving much of this partisan loyalty is a sense of shared fate (a sense of group identity or shared consciousness that can lead to perceptions of common interest) — many LGBT voters may default to the Democratic option because of their positons on LGBT issues.  To infer from this that the majority of LGBT individuals share a liberal or progressive outlook is faulty inference.  Normative desires for LGBT representatives who are also ideologically “pure” members of the Democratic coalition are fine, but to turn these into operative assumptions that LGBT voters are primarily or predominantly liberal is a step too far.

Following Windsor, Lawsuits Take Aim At Pennsylvania Same-Sex Marriage Ban.

/ Matthew McKeon / Leave a comment

Like many other states, Pennsylvania bars same-sex marriage by statute.  23 Pa. Cons. Stat. §§ 1102 and 1704 (1996).  Unlike other states, Pennsylvania’s ban is currently being challenged at all levels of government.  This drive is even visible at the local level: Reuters reported that the county clerk of Montgomery County issued more than 170 marriage licenses to same-sex couples between late July and mid-September, when a state court ordered him to stop.  In the state legislature, two representatives in the lower house plan to introduce a bill on October 6 that would override the existing ban and permit same-sex marriages.

While acts of civil disobedience and bold legislative proposals may inspire marriage equality advocates, the Republican governor and the Republican majorities in both houses of the state legislature are unlikely to be so moved.  In the end, the most significant threat to the state ban is a pair of lawsuits filed in two different federal district courts.  Both suits are the direct result of the U.S. Supreme Court’s holding in United States v. Windsor, 133 S. Ct. 2675 (2013).  In Windsor, the Court struck down Section 3 of the federal Defense of Marriage Act (DOMA), which permitted the federal government to withhold federal recognition for same-sex marriages entered into in states and jurisdictions where same-sex marriage is legal.  Although Justice Anthony Kennedy based the Court’s holding in part on the traditional supremacy of states in regulating marriage, other parts of his reasoning paradoxically provided fertile ground for federal challenges to state same-sex marriage bans.        

The first challenge, Whitewood v. Corbett, was filed in the U.S. District Court for the Middle District of Pennsylvania just days after the Supreme Court handed down its opinion in Windsor.  In their complaint, the plaintiffs challenge Pennsylvania’s ban on same-sex marriage on the grounds that denying same-sex couples the right to marry in Pennsylvania violates the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause.

Quoting Kennedy, the plaintiff’s complaint alleges that the state ban “‘tells [same-sex] couples and all the world- that their relationships are unworthy’ of recognition.”  The complaint also references the part of Kennedy’s reasoning which addressed a significant group of people affected by  government’s refusal to recognize same-sex marriage: the children of same-sex couples.  The plaintiffs claim that the state ban “‘humiliates the…children now being raised by same-sex couples’ and ‘makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’” Governor Tom Corbett—himself the primary defendant in Whitewood–has moved to dismiss the case.

The second challenge, Palladino v. Corbett, was filed in the U.S. District Court for the Eastern District of Pennsylvania in late September.  Although a record of their complaint was not available at the time of this article’s posting, Alfred Lubrano of the Philadelphia Inquirer reports that the plaintiffs in Palladino are challenging the state ban on the grounds that it violates Full Faith and Credit.  The plaintiffs, two women who were lawfully married in Massachusetts, assert that it is unconstitutional for Pennsylvania to not recognize their marriage.  While it remains unclear if the plaintiff’s will reference Kennedy’s reasoning in Windsor, they echoed Kennedy’s consideration for children of same-sex couples at a recent press conference, stating that their young son “doesn’t know he’s a second-class citizen in Pennsylvania, where we’re not considered married.”

On top of the suits themselves, a high-profile schism in Pennsylvania’s executive branch may complicate the state’s defense of the law.  Despite being named as a defendant in both Whitewood and Palladino, Pennsylvania’s Attorney General Kathleen Kane, a Democrat, has publically denounced the state ban as unconstitutional and has stated that she will not defend it in federal court.  Kane’s position puts her at odds with Governor Tom Corbett, a Republican who supports the state ban and – perhaps at the suggestion of Rick Santorum – recently compared same-sex marriage to incest.  With developments in both cases on a weekly basis, Pennsylvania remains at the center of the nation’s debate over same-sex marriage.

Gay Pride Proclamation Too Far, Too Fast for California Town

/ Eric van der Vort / Leave a comment

A small debate in a California town sets the stage for my first post here at SLACE about LGBT issues. The New York Times reports:

The mayor of Porterville (CA) did not give it much thought when a local gay activist in this remote Central Valley farming town asked her to proclaim June a month of gay pride. But when the mayor, Virginia R. Gurrola, settled into her seat at City Hall to sign the proclamation, people were pouring out of the chambers and into the hallways, citing Scripture in opposition to what she had thought of as a simple ceremonial gesture. Her four fellow City Council members announced they would not join her in signing the document.

The Times goes on to note that Ms. Gurrola was removed from her mayorship by fellow Council members, who took back the gay pride proclamation and issued in its stead a general notice calling for ‘good will to all.’

A common topic of debate about the nature of minority rights in America revolves around how successful we as a polity have been (or not been) in achieving substantive social progress.  Whether we are concerned with equal concern and respect, as well as rights, on the basis of race, sex, gender identity or sexuality, to name only a few, the measures of how far we have come and how far we have left to go are difficult to pin down and frequently contested.  One of the more interesting discussions that has taken place within political science (disclosure: my home discipline) has centered around the operation of what Desmond King and Rogers Smith call racial institutional orders.  At its core, the argument King and Smith make asserts that there are two political orders in the United States (what they call on one hand the ‘white supremacist’ or ‘anti-transformative’ orders, for those who compose a political order that, while perhaps not explicitly racist, favor policies and political arrangements that preserve and entrench the power and status of the white population, and on the other hand the ‘transformative egalitarian’ order, for those who compose a political order that, to varying degrees, subscribes to conceptions of racial justice).

More recently, some historians and political scientists have begun to employ King and Smith’s concept of racial institutional orders (sometimes in combination with Smith’s earlier work on ascriptive Americanist hierarchies) to inform analyses of the politics of gender and sexuality in the United States.  One of the key insights this work offers are the historical roots of modern rights struggles and the parallels between the struggle for racial justice (or, in King and Smith’s work, the struggle between the two racial institutional orders) and modern debates over a variety of issues, racial and otherwise.  Particularly important is the insight King and Smith offer in the transformation that has taken place in American politics: where once the transformative egalitarian order had once been weaker, principles of racial equality have penetrated our culture and politics so deeply that the very terms on which debates now take place have changed.

In particular, what was once the ‘white supremacist’ order has become, rather, an anti-transformative order: accepting (at least facially, though often substantively) of many of the principles of racial equality and egalitarianism, the anti-transformative order now often takes a stand that can best be summarized as ‘We’ve come this far, let’s go no farther.’  Rather than invoking antiquated language about racial hierarchy or discrimination, the anti-transformative order often argues for a truly color-blind society, arguing against what may be termed special treatment or rights.  Recent decisions about the Voting Rights Act and affirmative action programs at the University of Texas (both majority opinions and the dissents) are indicative, to varying degrees, our continuing battles on racial matters.

In my own research, I work (among other things) on analyses detailing the historical parallels between America’s racial struggles and the institutional and legal regimes built up around them and concurrent/subsequent disputes over what might be termed gender and sexuality regimes.  The Porterville case strikes me as a perfect micro-level demonstration of this work.  What looks on its surface to be a relatively minor dispute over the issuance of a gay pride proclamation by a town government presents a useful insight into the continuing dispute between two ‘sexuality institutional orders’ quite similar to King and Smith’s racial institutional orders: on the one hand, the (former) mayor represents an actor in an egalitarian order that would further in some small way an LGBT friendly agenda and environment, while on the other her dissenting fellow-councillors represent a group that may be described as anti-transformative.

The most interesting part of this is the terms on which the debate takes place.  Egalitarian impulses have subsumed so much of our attitudes towards minorities that they often take place not in starkly discriminatory terms, but are rather framed in traditional liberal terms.  Note here the parallels between the rhetoric employed by opponents of affirmative action (including justices of the Supreme Court, with Chief Justice Roberts famously noting: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”) and the opponents of the gay pride proclamation here (with their proclamation of good will toward all).  This is similar to the political and legal disputes over Colorado’s Amendment 2, which culminated in Romer v. Evans, where the supporters of Amendment 2 couched their preferred policy as a denial of special treatment for gays and lesbians, while opponents based their arguments on equal treatment.  Scratching beneath the surface of even a relatively minor debate over a gay pride proclamation in a small California town can yield important insights into the deep historical trends of American political that are still operative today.