This morning, March 27, 2013, the Supreme Court heard oral arguments in United States v. Windsor, No. 12-307, in which Edith Schlain Windsor, the surviving spouse of Thea Clara Spyer, sued the federal government in her capacity as executor of her wife’s estate for a refund of the estate tax that was levied in 2009. At issue in the case is the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA), which … <Read More>
Legal Issues
Supreme Court Argument on Proposition 8 Strongly Suggests There is No Majority to Rule on the Merits
On the tenth anniversary of its oral argument in Lawrence v. Texas, the historic 2003 ruling striking down laws against consensual gay sex, the U.S. Supreme Court took up the contentious issue of same-sex marriage on March 26, 2013, having granted a petition by four of the proponents of Proposition 8 to review the lower courts’ rulings that the California anti-same-sex marriage constitutional amendment (adopted by voters in 2008) violates the Equal Protection Clause of … <Read More>
New Mexico Marriage Definition Questioned
Santa Fe City Attorney Geno Zamora signed off on a memorandum dated March 19, 2013, stating that “same-sex marriage is permitted in New Mexico,” according to reports in various newspapers, including the March 20 edition of the Albuquerque Journal. The memorandum cites the following evidence for this conclusion:
1. New Mexico has a marriage recognition statute, Section 40-1-4, under which the state’s attorney general opined in 2011 (N.M.AG Op. No. 11-01) that same-sex marriages … <Read More>
Threat Against Gay Relative and Her Partner Posted on Facebook Page is Felony in Florida
On March 18, the First District Court of Appeal of Florida upheld the conviction of Timothy Ryan O’Leary under a Florida statute making it a felony to send a communication threatening to kill or do serious bodily harm to a person, finding that the statute applied to a threat he posted on his Facebook.com home page against a lesbian relative and her partner. O’Leary, who pled no-contest after the Duval County Circuit Court refused to … <Read More>
4th Circuit Panel Debates Scope of Lawrence v. Texas; Majority Strikes Virginia Sodomy Law
Did Lawrence v. Texas, the U.S. Supreme Court’s 2003 decision holding that the Texas Homosexual Conduct Law violated the 14th Amendment Due Process clause, firmly establish a broad principle of federal constitutional law, or was it a narrow ruling that a state sodomy law cannot be used to prosecute private, consensual adult homosexual conduct? A three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, debated that question in … <Read More>
NY Appellate Division Reinstates Arbitrator’s Order in Case of Gay School Librarian
A New York Appellate Division panel in Manhattan, unanimously reversing a trial judge, reinstated an arbitrator’s ruling that suspended an openly-gay tenured school librarian in the New York City school system for six months without pay, after the arbitrator found that the librarian had engaged in “inappropriate touching” of students of a non-sexual nature. The appellate panel found no evidence in the record of any sexual orientation discrimination that might provide a public policy justification … <Read More>
Obama Administration Files Amicus Brief in Opposition to Proposition 8
On February 28, the Obama Administration weighed in on Hollingsworth v. Perry, No. 12-144, the pending challenging in the Supreme Court by the American Federation for Equal Rights (AFER) to California Proposition 8, by filing an amicus brief arguing that the Court should declare California’s constitutional provision limiting marriage to the union of a man and a woman to be unconstitutional under the 14th Amendment. The government is the Petitioner in the companion case
… <Read More> Kansas Supreme Court Recognizes Right of Same-Sex Co-Parent to Enforce Parenting Agreement
The Kansas Supreme Court has unanimously ruled that a lesbian co-parent who entered into a written co-parenting agreement with her partner before her partner had a child through assisted reproductive technology (ART) can seek enforcement of the agreement in the Kansas courts, premised on a gender-neutral interpretation of the Kansas version of the Uniform Parentage Act. Ruling in Frazier v. Goudschaal on February 22, the court also found that the trial court had authority to … <Read More>
New DOMA Briefs in Supreme Court Join the Issue on Merits and Jurisdiction
On February 21 and 22 the parties in United States v. Windsor, the pending challenge to Section 3 of the Defense of Marriage Act (DOMA), filed briefs in the Supreme Court in compliance with the expedited briefing schedule that the Court ordered shortly after granting the Solicitor General’s petition to hear the case. The Justice Department (DOJ) filed two briefs, the first addressed to the merits (whether Section 3 violates the 5th Amendment’s equal protection … <Read More>
Prop 8 Case: The Respondents Weigh In
Briefs have now been filed on behalf of the Prop 8 Respondents, the two same-sex couples on whose behalf the lawsuit challenging California Proposition 8 was filed, and the City and County of San Francisco, which was allowed by District Judge Walker to intervene as a co-plaintiff in the case. These briefs, filed in Hollingsworth v. Perry, No. 12-144, on February 21, are different in their focus, reflecting the different roles of the plaintiffs and … <Read More>