Sex on the Margins - The More Things Change...

We recently had the pleasure of hosting writer/sex educator Susie Bright, writer/cultural critic Michael Bronski, and GLAD founder Attorney John Ward at Boston's Old South Meeting House. The event, Sex on the Margins: The More Things Change..., was meant to foster a provocative discussion about the past, present, and future of the LGBT rights movement.

And it did.

Our panelists did not disappoint, posing questions about whether the gay community in the U.S. has become too assimilationist for its own good while reminding us that almost everywhere in the world you are still at risk - physically, legally, politically - if you are not heterosexual; suggesting that we have practically settled the question of marriage equality and now need to come up with the next big thing (an "exit strategy" as Susie Bright put it); and taking the gay community to task for not coming to the defense of Senator Larry Craig when he became the victim of a bathroom police sting - just like the 103 men whose arrests at the Boston Public Library prompted the founding of GLAD in 1978.

The audience, too, raised important issues - reminding us that many in our community don't have the luxury of pondering assimilation as they continue to struggle for things like jobs, health care, and basic safety; that marriage equality is still a distant goal in many parts of this country; and that, while their concerns and strategies may differ from those of their predecessors, there is a vibrant, active, and engaged young LGBT community out there pushing the movement forward.

Were you at this event? Join the conversation - where are we and where should we be heading?

A Weakened ENDA makes no sense

GLAD supports a fully inclusive Employment Non Discrimination Act (“ENDA”). ENDA would make it illegal in all 50 states for employers to discriminate against employees on the basis of gender identity and sexual orientation.

In 1964, when Congress passed the Civil Rights Act protecting a number of groups from discrimination on the basis of a number of characteristics, no consideration was given to protecting gay, lesbian, bisexual and transgender people. Politically, we were simply not on the radar.

But the political climate changed significantly as awareness of gay and lesbian issues rose and, in 1994, congressional leaders advanced a bill focused narrowly on prohibiting sexual orientation-based discrimination in employment. It was thought that the narrow focus would help it pass quickly.

Of course the political weather changed yet again, becoming unfriendly to LGBT people, and ENDA languished for 13 years and with no hope of any advancement. Nearly five years ago, GLAD, Lambda, the ACLU and the National Center for Lesbian Rights joined to reexamine that very narrowly focused 1994 bill to see if it still made sense legally, strategically, politically and ethically.

In light of what we have learned and how our movement has evolved since 1994, it did not. First, our movement has increasingly become inclusive of transgender people, recognizing our shared experience and history. GLAD in fact added “gender identity and expression” to its core anti-discrimination mission on this basis. This is not only a matter of justice but a recognition that discrimination against sexual minorities comes from related sources.

As GLAD knows from the calls we get on our InfoLine, the discrimination experienced by many gay men, lesbians and bisexuals is based not directly on their sexual orientation, but on their presentation — their gender identity or expression. They are “too feminine” or “too masculine” and they make employers uncomfortable — and they’re fired.

And from a series of unprincipled court decisions dating back to the 1970s and 1980s, we learned that existing federal sex discrimination laws would not prevent employers from firing trans people unfairly.

Consequently, we felt it was critical to add language explicitly prohibiting discrimination based on gender identity or expression to proposed federal and state laws. It would protect all of us, and it was the right thing to do. Our legal groups, alongside the political groups, worked intensively with congressional leaders to a place of unity and support for the fully inclusive ENDA that became HR 2015.

Two final practical points support our position. First, our experiences in state legislatures, and most recently in Congress, involving work on hate crimes, show that legislators know how to ensure that laws protect the full community. Second, in other contexts we have learned the lessons associated with asking for less than we want and deserve. Our efforts on marriage equality prove that there is no point in our community selling itself short.

Having come to this position, it makes no sense for GLAD to support a weakened ENDA, and we would urge others to take that position as well – as nearly 300 groups across the country have. The time is right to stand together as one community supporting one bill.

Equal Marriage is the Law in Massachusetts

You've no doubt heard about the MA bar association applicant who is suing because he claims a question on the test involving the marriage of a same-sex couple violated his right to exercise his religion. He's also claiming that his refusal to answer said question is what kept him from making a (barely) passing score on the exam.

Alot has been said already about this case (you can read more about it here, and here, and here, for instance), and we don't want to give this frivolous case much more airtime.

Other than to point out the obvious - the bar exam is a test of the applicant's knowledge of the law. And in Massachusetts, the law is equal marriage.

The Sky Isn't Falling, Says Post

Another excellent point in today's Washington Post:

"When the high court of Massachusetts ruled in 2003 that the commonwealth's constitution gave same-sex couples the right to marry, detractors railed against "activist judges" who were "imposing" their will on the people. Only the people, through their elected representatives, should decide something so fundamental, they said. Thus began an effort to amend Massachusetts's constitution by referendum to define marriage as a union between a man and a woman. Four years and about 10,000 same-sex marriages later, here's what the people have said: never mind."

That's exactly what happened a few weeks ago when opponents of equality failed to get the 50 votes needed in the legislature to move forward a ballot initiative to ban legal rights and recognition for lesbian and gay couples.

It's heartening (though not surprising) to see how the experience of witnessing lesbian and gay couples and families go about their lives with the recognition and protections of civil marriage has changed the view of many citizens and legislators in this state. People have realized what we've known all along - allowing all loving, committed couples access to equal marriage does not hurt the commonwealth, the society, or the institution of marriage in any way. If anything, it enriches it.

The rest of the nation can now take a good look at Massachusetts and see that, in the words of the Washington Post, "the sky isn't falling."

Trouble with Civil Unions

The Washington Post reported on Saturday that some couples in New Jersey who have registered for civil unions since they became available four months ago are still being denied the rights and benefits the law was intended to grant them.

The article tells of Craig Ross and Richard Cash. Despite their civil union, Ross's employer of 21 years is refusing to provide health insurance coverage for Cash. The company has a self-funded insurance plan, and claims - as have other employers - that federal regulations therefore allow them to ignore state laws regarding employee benefits.

The federal Defense of Marriage Act is often cited by companies like Ross's as justification for denying benefits to the partners of employees even when they are legally recognized by the state.

Ross and Cash are not alone. According to the Post, "A recent study by Garden State Equality, New Jersey's leading gay advocacy group, indicated that as many as one in eight of the 1,092 same-sex couples who have registered for civil unions there have been denied all or part of the benefits they hoped to gain from the law."

This is an excellent example of why civil unions are not an adequate substitute for equal marriage, as they are clearly considered to be less than marriage by some employers (not to mention the federal government).

Maine Pride

Several representatives from GLAD attended the Southern Maine Pride festival in Portland, Maine on June 16^th. We distributed information and fliers, and spoke with members of the Maine LGBT community who were interested to learn more about GLAD and our work.

The festival was a really wonderful event, featuring performances, tables with information and educational presentations. Many people were excited about the results of the Massachusetts Constitutional Convention, as well as the recent inclusion of LGBT domestic partnerships in the Family Medical Leave Act in Maine, and many had questions about GLAD recent legal developments.

This year, Southern Maine Pride had the largest attendance in the history of the event, and it was really encouraging and exciting to see people from around the state coming together to learn and celebrate.

One Step Closer

Janet Jenkins last Friday came one step closer to seeing her daughter again.

In dissolving the Vermont civil union between Janet and her ex-spouse, Lisa Miller, a Vermont Family Court judge ordered regular parent-child contact between Janet and her daughter, Isabella. Her first visit could be as soon as June 30.

The court's order is the latest development in GLAD's case Miller-Jenkins v. Miller-Jenkins, which you can read about here.

Fighting for Dignity and Respect

Take a look at more photos from the day

After yesterday's oral argument at the Connecticut Supreme Court, GLAD Attorney Ben Klein and the eight plaintiff couples in the case participated in a press conference on the courthouse steps.

Ben opened by saying: "Today the plaintiffs argued for the right to the same treatment and dignity that all other families get. Under the Connecticut constitution, we believe that they are entitled to the same respect and dignity of any other couple."

Lead plaintiffs Beth Kerrigan and Jody Mock then took the microphone to explain how important it is to them and their children to be able to say that they are married, and how heartened they were to hear one of the Justices bring up that point in court. "We have five year old boys in kindergarten, and they always ask us 'are you married?' And it breaks our heart to have to say the truth, which is that we're not. But we're fighting for that."

12:59

In closing, Ben focused his argument on the fact that marriage is more than the sum of all the tangible rights and benefits associated with the word “marriage.” Rather, the ability to say that you are married is one of the benefits of marriage. There is no adjective or verb associated with the word “civil union” and gay and lesbian couples and families deserve a legal status that let’s them convey to the world that they have access to the same level of equality enjoyed by CT’s other citizens.

Ben also rebutted the state’s argument that the legislature could have rationally believed that civil unions are better because they are more likely to be granted recognition in other states. Ben said that the premise was all wrong. Only a few states have civil unions but all states have marriage recognition laws. No one can prejudge whether a marriage will be respected in whole or in part because the outcome of a marriage recognition analysis might turn on what aspect of marriage someone needs to have recognized, as well as potentially competing public policies. For example, a state may respect a marriage to enforce child support obligations arising from a marriage because the state policy of protecting children surmounts any competing public policy.

12:55

After Ben's return to the podium, Justice Borden revisited the issue of whether the plaintiffs should be considered a suspect class or a quasi-suspect class. Are gays and lesbians politically powerless now? Or do we look at whether they historically have been politically powerless? What lens do we look at in applying that part of the test?

Ben responded that, to answer this, the Court has to look through an historical lens, to reflect the reality that systemic discrimination does not appear in a short timeframe. And also a national lens, because Connecticut citizens are affected by what happens nationally. There have been gains, but gays and lesbians as a group are still subject to the control of the majority, and there is still inequality.

12:43

Attorney Judith Ravel, representing Dorothy Bean, the town clerk who refused to issue marriage licenses to the plaintiff couples, gave a brief statement for her client. Mrs. Bean, she said, did the only thing she could do, which is to follow the instructions of the attorney general.

The Justices didn't question her.

Still, she said with emphasis, "Mrs. Bean got served, and she didn't like it."

12:40

Rosenberg rounded out her statement by saying that changing the defintion of marriage in the state of Connecticut should be a matter for the Legislature.

12:40

Rosenberg advanced several arguments about why limiting marriage to different-sex couples related to a rational state interest, including maintaining the traditional meaning of marriage, promoting consitency with the laws of other states, the possibility that the rights associated with civil union will be recognized by states prohibiting marriage for same-sex couples.

Justice Borden asked whether the state relies at all on the "responsible procreation" argument; Rosenberg responded that although amici raised that argument, the state doesn't rest on it.

Rosenberg began her conclusion by stating that marriage is not a matter of constitutional law for the court to decide; rather, it's a legislative matter that should be decided by the people.

Justice Borden wondered about the analysis applied to the Virginia Military Institute case; Justice Norcott identified it as the McLaurin analysis, which may fall somewhere in between an intermediate analysis and strict scrutiny.

Justice Borden continued to ask whether Rosenberg thought it was important for all children, including the children of same-sex couples, to say that their parents are married. He also asserted that there is a good amount of evidence pointing to the equal parenting abilities of same-sex and different-sex couples.

In response, Rosenberg revisited her idea that the plaintiffs' feelings about the word marriage - valid as they may be - didn't lend themselves to a legal argument, and that that may be an issue for the Legislature.

12:20

Rosenberg resumed her remarks by arguing that rational basis--the "model of judicial restraint"--is the appropriate standard in this case.

Justice Borden, who had a similar dialogue with Ben, asked Rosenberg how she would balance between the Glucksberg cautionary tale (against overly broad definitions of marriage) and Lawrence's cautionary tale (against overly narrow defnitions of marriage).

Rosenberg responded that this case will change the definition of marriage in a radically different way than either of those cases.

Borden led Rosenberg to a discussion of the idea that, even in Goodridge, Justice Marshall acknowledged that the Massachusetts Supreme Judicial Court acknowledged that it was, in fact, changing the defnition of marriage.

12:00

The Justices adjourned for their morning recess.

Just before leaving, they questioned Rosenberg about the level of scrutiny required for a suspect class argument, which she identified as strict scrutiny. But she maintained that the case was not about sexual orientation discrimination, since nothing prohibits gay men and lesbians from marrying a member of the opposite sex--they just choose not to do so.

Justice Borden questioned whether that was a realistic argument, if sexual orientation is a central part of their identity. And Justice Palmer, clearly troubled by the logic, responded that he thought it was a facile approach to a suspect class claim.

11:50

The justices began their questioning of Rosenberg by asking about the harms caused by marriage inequality. How, asked Justice Palmer, does the difference between civil union and marriage not stigmatize those relagated to civil unions? Appellate Judge Harper asked about how the denial of a marriage licence does not count as a constitutional harm.

Rosenberg maintained that, although she respects the plaintiff couples' feelings that they are stigmatized by not having access to marriage, those feelings do not go to the legal question at hand, i.e., whether the Legislature is required to use the word "marriage." She continued to say that there is nothing in the civil union law that is intended as derogatory for same-sex couples, and in fact civil unions indicate a step forward.

Justice Palmer asked if this "step forward" is the reason the defendants claim the plaintiffs can't satisfy the "political powerlessness" component of a suspect class argument. Justice Norcott interjected that, "if gay and lesbian folks in Connecticut had true political power, they'd have passed the bill across the street (in the legislative building), and we wouldn't be here."

11:35

The justices continued their rigorous questioning to Ben about the standard of scrutiny required by plaintiff's claims, based on being members of a suspect class (status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny).

Attorney Jane Rosenberg, assistant attorney general for the state began her opening statement on behalf of two defendants, the commissioner of the Department of Public Health, and the Department of Public Health. She began by talking about how Connecticut has been a leader in promoting civil rights, and stated that, after granting the rights and benefits of marriage to same-sex couples under a different name, the question remaining for the Court is "what's left?"

11:00

Borden asked about the argument of marriage as a "fundamental right."

Judge Harper asked if the plaintiffs differentiate the fundamental right to marriage and the right to marriage for same-sex couples.

Ben responded that there is no fundamental right to same-sex marriage; the plaintiffs seek the fundamental right to marriage.

Judge Harper responded that same-sex couples are not precluded from marriage, only precluded from same-sex marriage.

Ben argued that defining marriage as only between a man and a woman simply because it's always been between a man an a woman, is circular reasoning. You determine the right to marry by the attributes of that right, not by a traditional definition. The fundamental nature of the right is not dependent upon the gender of the two parties; it's the relationship of two legal equals by mutual consent, taking responsibility for each other, and protected by the state. As in Griswold, same-sex couples have the same interests in entering into those loving bonds that different-sex couples do.

10:40

Justice Borden suggested that civil unions are inclusive, rather than exclusive, in that they grant rights and privileges of a status that did not exist before.

Ben acknowledged that civil unions are a step forward, but that they don't comport with equality under the Connecticut constitution. The Court's role, Ben argued, is to figure out whether the Legislature drew the line in the right place, cutting same-sex couples off short of full marriage.

Borden refocused his questioning on the argument that civil unions are unconstitutional. The premise of cases the plaintiff's cite, such as Plessy v. Ferguson, was based on race. Analogies to those cases have to rest on an underlying premise that there is an illegal classification.

Ben responded that the classifications in the case are both sex and sexual orientation. Since sex and race both are invidious classifications, cases like Loving are applicable.

10:24

Ben Klein opened his argument by addressing the separate and unequal status of civil unions, referencing historical cases relating primarily to race-based discrimination and stating that separate institutions for minority groups are unheard of in US jurisprudence today. He further stated that the law understands that the legal mechanism of creating separate institutions has no purpose other than to mark one group of citizens as inferior and unworthy, and to deny them a set of rights available to other citizens.

While stating clearly that he did not wish to equate the civil rights struggle of gay and lesbian citizens with that of African-Americans, Ben made the point that race discrimination cases have become the paradigm for what the constitution requires, and, relevant to the sex-based discrimination claim in this case, that race- and sex-based classifications are analyzed exaclty the same under Article 1 Section 20 of the Connecticut constitution.

Justices Norcott and Borden, and Appellate Judge Harper, began the questioning during Ben's remarks by questioning the applicability of the civil rights cases cited by GLAD, including Brown v. Board of Education and Loving v. Virginia.