Novalawcity

A Trend in GLBT Discrimination Law?

Three recent court decisions, and an ABA policy shift, may indicate a trend in LGBT rights law towards greater protection for the LGBT community. First, a transwoman (a male-to-female transsexual) won a recent federal employment-discrimination lawsuit against the Georgia State Assembly (here is the order in this case, Glenn v. Brumby). Second, a Massachusetts federal judge ruled July 8th in two related cases; in one order, in Gill v. Office of Personnel Management, that the Federal Defense of Marriage Act 11 U.S.C. § 7, enacted in 1996, is unconstitutional; and in another order, Commonwealth of Massachusetts v. HHS, that the federal government could not deny the benefits accorded to married couples to same-sex couples married under Massachusetts law. And third, the District of Columbia Court of Appeals ruled that a proposed referendum on same-sex marriage was prohibited under the city’s human-rights law (Christian Science Monitor  story; Washington Times story).

In the policy realm, the American Bar Association (ABA) is considering taking a public position in favor of same-sex marriage.  According to an ABA press release at ABANow.org, the website of the American Bar AssociationMedia Relations & Communication Services, the proposal, to be considered by the ABA House of Delegates at the ABA Annual Meeting in August, “would urge state-level governments to eliminate all legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry and build on a 2004 ABA policy opposing a federal constitutional amendment to define marriage as a union between a man and a woman and prohibit states from allowing same sex couples to enter civil marriage.”

The National Organization for Marriage opposes the Massachusetts federal judge’s decisions: as Brian Brown, its president stated, “A single federal judge in Boston has no moral right to decide the definition of marriage for the people of the United States”; and plans to appeal the D.C. Court of Appeals ruling to the U.S. Supreme Court: “The central issue in this case is whether the people of the District of Columbia will be able to exercise their constitutional right to vote on this important issue, just as voters in 31 states have been able to do.” The American Spectator website carried an March 3rd, 2010 editorial written by William C. Duncan, the director of the Marriage Law Foundation. Duncan noted that “With the extreme subjectivity and irrelevance of nearly all of the plaintiffs' evidence, it is fair to ask what illumination this show trial has provided. This "civics lesson" is beginning to look more like a cautionary tale about the dangers of legal hubris. Certainly our fundamental social institution deserves better.”

But even according to opponents of same-sex marriage, there seems to be a dearth of factual support for the idea that same-sex marriage is somehow inimical to heterosexual marriage. In a pretrial hearing in the lawsuit over California’s Proposition 8 ban of same-sex marriage, according to MSNBC coverage on October 14, 2009, there was a fascinating exchange between the judge and one of the attorneys defending Proposition 8 last year. Federal trial-court judge Vaughn Walker asked "What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?" Charles Cooper, one of the defense attorneys, responded "My answer is, I don't know. I don't know."

Does the apparent increasing velocity of GLBT rights, and the dearth of factual support for opposition to same-sex marriage, presage a decision in the federal trial over Proposition 8 in California--or even in higher-level courts?

Friday Fun: Zombies Have Rights, Too

On February 24, 2010, a federal court decided that zombies have rights too... at least in Minnesota. In Baribeault v. Minneapolis, the Court of Appeals for the Eight Circuit found that police lacked probable cause to arrest a group of people on public property, dressed, made up, and acting like zombies (in a protest against consumerism). The Minneapolis Star-Tribune story about the case has more details, and the opinion is here at the Eighth Circuit's Web site.

Bush v. Gore as Precedent

As Joan Biskupic writes in her Supreme Court blog Court Beat, the case has been cited in over 200 state and federal court decisions since it was issued 9 years ago. Biskupic's post focuses on the role that Justice Antonin Scalia played in the legal battle that resulted in the Supreme Court decision that terminated Florida's recount efforts, and the declared that George W. Bush was the winner of the 2000 presidential election. She also notes that, although the majority opinion stated that "our consideration is limited to the present circumstances", "[t]he 2000 ruling has enhanced the grounds for equal-protections challenges to unreliable voting procedures."  

The Supreme Court Hit Parade

Here's a trivia question for you lawyers in our reading audience.  Which Supreme Court case leads the list of those most-cited, according to HeinOnline's citation metrics?  No peeking, now.  It's Brown v. Board of Education, followed closely by Roe v. Wade, cited 15, 991 times.  Next are Griswold v. Connecticut, Miranda v. Arizona and New York Times v. Sullivan.  Reassuringly for those of you who are thinking, "Geez, I didn't need to go to law school to recognize those names," Marbury v. Madison appears at lucky number 13.  Marbury v. Madison is the secret handshake of the lawyering guild, as anyone who has ever turned themselves inside out trying to understand, and to explain to their professor, why it's in their Con law book, can attest.   

And just to satisfy your curiosity, Lemon v. Kurtzman comes in at number 50, with 4,486 citations.

"Why Minnesota 2008 Is Not Florida 2000"

Edward B. Foley, director of Ohio State University's Election Law @ Moritz, has posted a very interesting analysis of the current contest between Norm Coleman and Al Franken for Minnesota's senate seat. Among other points, he argues that, unlike the decisions in Florida's 2000 presidential election snafu, Minnesota's "judicial rulings over the counting of ballots do not appear to be a partisan effort to tilt the legal playing field to assist a favored candidate."  To read the entire post, click here.

11th Circuit Rules that Miami School Board Can Ban Vamos a Cuba

See this post on the First Amendment Center's blog. Read  ACLU of Florida v. Miami-Dade County School Board at the U.S. Courts website.

Friend or Foe? On Facebook, It’s Not So Clear

An Australian court has ruled that a mortgage lender may serve a foreclosure notice via Facebook.  See Aussie court OKs using Facebook for serving lien.  Efforts at contacting the homeowners had failed until the attorney for the lender was able to locate the profile of the borrower through an associate’s Facebook page.  While there are certain electronic means that are recognized as proper methods for serving legal documents, notice by way of a social networking website is a new tactic.  In Australia, e-mails and text messages also have been deemed acceptable methods of service.  Professor Rory Ryan of Baylor Law School says, in the U.S., “legal rules list several acceptable delivery methods, but not surprisingly, Facebook isn't included.”  While Facebook boasts that it “helps you connect and share with the people in your life,” it may some day help the people in your life to serve you with court papers.

Court Allows E-mail Recovery Effort to Continue

Sabrina Pacifici reports that "the National Security Archive may proceed with its effort to force the White House to recover millions of Bush Administration Executive Office of the President (EOP) e-mail records before the presidential transition."  Click here to see the November 10th ruling of the U.S. Court of Appeals for the District of Columbia, and  here to see the chronology of this effort.

A Nation of Immigrants

Faithful readers of Novalawcity may recall when I blogged about questions regarding John McCain's citizenship (Citizen McCain?).  The Democratic candidate's citizenship qualifications have been challenged as well.  Pennsylvania attorney Philip Berg brought suit against Barack Obama, alleging that he is not a "natural born citizen" of the United States as required in Article II Section 1 and hence not entitled to serve as President.  Relying heavily on the case of Hollander v. McCain,  which challenged Candidate McCain's citizenship, the District Court for the Eastern District of Pennsylvania dismissed the suit.  Judge R. Barclay Surrick held that Berg did not have standing to bring suit, because he would not be directly harmed even if his allegation that Obama lost his citizenship when his mother married an Indonesian man were true. 

Perhaps it is time to take another look at the "natural born citizen" requirement, which originally stemmed from the fear that a malign Brit would take the infant United States back under British rule.  A movement  to amend the constitution to remove the requirement was organized at the height of Arnold Shwarzenegger's popularity, but has since languished. Hat tip to Concurring Opinions.

Conservative Federal Appellate Judges Assail SCOTUS Second Amendment Ruling

Seventh Circuit Judge Posner and Fourth Circuit Judge Wilkinson have attacked the decision in District of Columbia v. Heller.  Both likened it to the decision in Roe v. Wade, saying that in both cases, the SCOTUS violated the federalist principle of deference to the judgment of state legislatures.  Both judges assumed that Heller will apply to the states, as well as to the District of Columbia.  Far from hewing to his originalist principles, Justice Scalia is said to have been swayed by political considerations to strike down D.C.'s gun control ordinance.  Read the story in The New York Times.