More Analysis Of Zombie Anti-Gay Sodomy Laws

Sodomy laws, or state statutes which criminalized sexual contact between people of the same sex were some of the most pernicious aspects of anti-LGBT discriminatory practices that negatively impacted the civil rights of LGBT Americans.

The 2003 Supreme Court decision Lawrence v Texas basically ended the era of legal gay apartheid but there are 18 states which, today, 8 years later, still have sodomy laws on their books.

MadProfessah noted that Mother Jones discussed this curiosity last April and now Equality Matters and other LGBT media outlets are starting to take notice.

CA Sup Ct Sets Prop 8 Case Oral Arguments Date: 9/6/2011

Good news! The California Supreme Court has finally set a date of September 6 at 10:00am for the oral arguments in the Perry v. Brown lawsuit (informally known as "The Proposition 8 case") in which the question at hand is a very limited one. Namely,

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Although the question is limited, the stakes are not. If the state Supreme Court rules, most likely within 90 days of oral arguments, that the heterosexual supremacists who drafted and promulgated Proposition 8 now have no legal standing to defend its constitutionality, it is very likely a 3-judge panel of the 9th U.S. Circuit Court of Appeals will follow that decision and rule that the Proposition 8 proponents have no standing to defend the measure in federal court, either.

In that case, the lower court's decision would go into effect and federal Judge Vaughn Walker's brilliant ruling determining that Proposition 8 violates the United States Constitution would go into effect. Of course the bad guys would probably appeal to the Suprem Court but since the case would only be about California (and California law) it is unlikely that SCOTUS would take the case. There is a possibility that SCOTUS would take the appeal to try to clarify once and for all whether proponents of state ballot measures who are not named plaintiffs in lawsuits have a right to continue appeals when the named plaintiffs fail to appeal but there's already a decision called Arizona for Official English vs Arizona in which SCOTUS basically says you need a particularized interest under state law in order to pursue a federal appeal. And it is precisely that question of whether a particularized interest exists under California law that the California Supreme Court will decided, by the end of 2011.

Another wrinkle is that the 7-member Supreme Court has recently lost its most pro-gay member, Carlos Moreno, and Governor Brown only announced his replacement, Goodwin Liu, who is probably as similarly pro-equality as Moreno, this week. If Liu is not on the court by September 6th, the court will probably name a state appellate judge to hear oral arguments and participate in the decision.

Hang on to your hats, folks, it's gonna be a bumpy ride!

New York Assembly Passes Marriage Equality 80-63

Openly gay Assemblymember Daniel O'Donnell

For the fourth time since 2007, a marriage equality bill has passed the lower house of the New York State legislature, this time with a vote of 80-63 on Wednesday.

Gay City News reports:

This was the Assembly’s fourth vote on marriage equality, each one of them successful, since 2007. Upper West Side Assemblyman Daniel O’Donnell, an out gay Democrat, is the lead sponsor.

On the heels of two Republican senators pledging their “yes” votes in recent days, the majority in that chamber met behind closed doors for more than four hours on Wednesday morning, only to announce they would pick up the discussion again the following day. Senators who have yet to firmly commit to one side or another refused comment or stuck to their noncommittal positions.

The public count of Senate supporters stands at 31, one vote shy of a majority.

The Assembly floor debate offered a preview into the rhetoric that might soon be echoed in the Senate, as members voting yes made passionate speeches supporting equality and a largely tepid opposition raised concerns about infringement on religious values and the dangers of “redefining marriage.”


[...]


Supporters lined up to dismiss the standard opposition claim that marriage is a timeless institution that would be irreparably harmed by the governor’s legislation.

“It’s actually not true,” said Manhattan Assemblyman Dick Gottfried, who was the originating sponsor of marriage equality legislation, handing off that role to O’Donnell in 2007. “If we were to look honestly at what the institution of marriage was as little as a hundred years ago, we would be looking at an institution we scarcely recognize.”

Like several of his colleagues, Gottfried pointed out that the history of marriage included treating women as property and not allowing mixed-race marriages.

“It was all about property, it was all about hierarchy,” he said. “It was not at all about love.”

Hopefully the fourth time is the charm!

TN Groups File Lawsuit Against Anti-Gay Law

Excellent news! A coalition of LGBT Tennesseans have joined together to file a lawsuit challenging a recently enacted anti-gay law passed by the state Legislature which would repeal all existing local LGBT civil rights ordinances and prohibit the establishment of any ordinances which protect groups which are not currently protected in state law.

From the press release:

FOR IMMEDIATE RELEASE:

Tennesseans Challenge Discriminatory State Law
Councilmembers, Residents, Organizations File Suit Calling HB600 Unconstitutional

(Nashville, TN, June 13, 2011)—A group of local elected officials, individuals, and lesbian, gay, bisexual, and transgender (LGBT) rights organizations filed a lawsuit today in Davidson County Chancery Court, challenging the state’s recent passage of House Bill 600, which prohibits local municipalities and counties, including local school districts, from enacting local laws or school policies that protect gay and transgender people against discrimination. The bill was passed earlier this year, just weeks after Nashville added sexual orientation and gender identity to an existing local anti-discrimination law.  The new law also prohibits localities from protecting any other group that is not already protected under state law, which would include veterans and people with disabilities, among others.  

According to the complaint filed today: “HB600 embodies an animus toward gay and transgender people so strong that the Tennessee legislature was willing to repeal policies protecting students against bullying and harassment and to make other groups suffer as well, merely to prevent gay and transgender citizens from obtaining needed protections.”   

“This law is contrary to core Tennessee values,” said Abby R. Rubenfeld, the suit’s lead attorney. “Tennessee is the volunteer state—we help each other, we don’t single out certain Tennesseans who are deemed unworthy of help. Our legislators abused their power by preventing localities from assisting their own citizens. Rather than considering what is best for our state, they passed a law based on disapproval of gay and transgender people, which the Tennessee and U.S. Constitutions do not permit.”    

“Fifteen years ago, in fact—in a case quite similar to this one—the U.S. Supreme Court ruled that, ‘if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest’,” said Rubenfeld, citing Romer v. Evans, which struck down a Colorado constitutional amendment that barred localities or the state from passing laws to prohibit discrimination against gay people.

The suit’s plaintiffs, represented by Nashville attorney Rubenfeld, the law firm of Morrison & Foerster, and the National Center for Lesbian Rights, include:

•    Lisa Howe, the extremely successful Belmont University soccer coach who made a “mutual decision” to leave her coaching position unexpectedly and despite a highly successful career, immediately after sharing with her team that she and her same-sex partner were having a baby.

•    Metro Councilmembers Erik Cole, Erica Gilmore, and Mike Jameson, representing District 7, District 19, and District 6, respectively. Councilmembers Gilmore and Jameson were co-sponsors of BL2011-838, the Metro ordinance which extended existing anti-discrimination protections to gay and transgender employees of Metro government contractors.

•    Shirit Pankowsky, a rising senior at Martin Luther King, Jr. High School (MLK) and founder and president of MLK’s Gay/Straight Alliance. By stripping Metro’s ability to protect its citizens from discrimination, HB600 also strips protections from Metro Nashville Public Schools’ LGBT students who face discrimination.

•    Dr. Marisa Richmond, president of the Tennessee Transgender Political Coalition and longtime advocate for gay and transgender equality at the federal, state and local level.

•    Wesley Roberts, a teacher at Hume-Fogg Academic Magnet School and a co-sponsor of the school’s Gay/Straight Alliance.

•    The Tennessee Equality Project, a statewide non-profit organization dedicated to promoting and sustaining the equality of gay and transgender Tennesseans.

•    The Tennessee Transgender Political Coalition, a statewide organization which advocates for transgender-related legislation at the federal, state and local levels.

“I want my daughter to grow up in a state that treats everyone equally,” said Lisa Howe. “This lawsuit is necessary because the legislation is discriminatory and unconstitutional. Unfortunately, the majority of the legislature didn’t read the bill carefully and think through its consequences. But that’s why we have the Constitution and the courts to interpret it—so that the rights of everyone can be protected.”

“The state legislation was disguised as an effort to ensure consistent business regulations across Tennessee counties. But that was a Trojan horse pretext for getting this passed. Every county has unique zoning regulations, unique employment regulations, and so forth. Why is it only now, and only on the issue of discrimination, that we suddenly need uniformity? If every county now needs to be identical, should we abolish city councils across the state?” said Metro Councilmember and suit plaintiff Mike Jameson.
 
No individual businesses went on record in support of HB600, and some of Tennessee’s largest employers, including Nissan, Alcoa, FedEx, AT&T, Whirlpool and Comcast, opposed the bill. In addition, the Tennessee Chamber of Commerce issued a public statement in opposition to the bill on the day it was signed into law by Gov. Bill Haslam.

“Under the very thin guise of protecting businesses and commerce, Tennessee passed a law specifically intended to encourage discrimination against lesbian, gay, bisexual and transgender members of the community,” said Shannon Minter, Legal Director of the National Center for Lesbian Rights. “This law is part of a larger, national strategy to attack cities and counties that attempt to protect their citizens from discrimination based on characteristics that bear no relationship to job performance, talent, or one’s ability to contribute to society.”

Plaintiffs’ claims are based on the equal protection guarantees of the United States and Tennessee Constitutions. The lawsuit, which will proceed in state court, seeks injunctive relief to stop the enforcement of HB600 and an order from the Court declaring the law unconstitutional.  

Media Contacts:

Erik Olvera
NCLR Communications Director 
Office: 415.392.6257 x324
Mobile: 415.994.3242
EOlvera@NCLRights.org

Abby R. Rubenfeld 
Rubenfeld Law Office 
Office: 615.386.9077 
ARubenfeld@RubenfeldLaw.com

GRENADA: Man, 41, Charged Under Sodomy Law

Since I was born on the island of Grenada in the Eastern Caribbean I'm always attentive when the island-nation appears in the news. According to the AP, a 41-year-old man has been arrested and charged with sodomy for having consensual sex with a 17-year-old man.

The age of sexual consent in Grenada is 16 but while the sex in question was consensual, local law prohibits sodomy under the charge of "unnatural connection."

Grenada is one of several Caribbean nations that has laws banning sex between men. The penalty in most islands, including Grenada, is up to 10 years in prison, although Barbados and Guyana have life imprisonment, according to a 2010 United Nations report.

Many islands remain socially conservative, with Jamaica considered one of the most hostile islands toward homosexuals. A gay right activist was killed there last year, and three gay men were attacked and beaten in St. Lucia in March. Gay cruises to the region also continue to draw protesters.

In Grenada, gays are discriminated against and find it hard to find employment and housing, said Nigel Mathlin, president of GrenCHAP, a local nonprofit organization that represents marginalized groups.

"The government, they are very much aware of the changes that need to be made, of bringing our laws into line with international human rights principles," Mathlin said.

I'll be following this case relatively closely. I really don't see how the Caribbean nations of Barbados, Trinidad, Grenada and Jamaica can expect to have a vibrant tourism industry while still maintaining anti-gay sodomy laws and an unwelcoming, discriminatory atmosphere.

It's good to see that there is some organized resistance and challenge to explicit homophobia on the island of Grenada in the form of GrenCHAP and Nigel Mathlin.

Openly Gay LAPD Officer Wins $1.1M Lawsuit

Sgt. Ronald Crump

An openly gay police officer named Ronald Crump who literally appeared on a poster to recruit people to the Los Angeles Police Department has won a million-dollar judgement against the City of Los Angeles for anti-gay job discrimination and retaliation.

Karen Ocamb of LGBT POV has been covering the story diligently:

Openly gay Sergeant Ronald Crump is suing the city of LA claiming that his boss in Media Relations, Lt. John Romero, created a hostile work environment for gay and lesbian officers. His civil suit outlines a series of incidents over six months in which Crump claims he was harassed and humiliated. For instance, Crump claims that Romero said: “I was a religion major at Liberty University – Jerry Falwell would roll over in his grave if he knew I hired you.” The suit notes that Fawell founded the conservative religious university – but doesn’t mention that Falwell’s Moral Majority helped launch the antigay movement in 1977 with Anita Bryant.

Crump claims that Romero subjected him to “nearly constant harassment on account of his sexual orientation, including introducing Crump to new co-workers as “the new Ruby [Crump’s predecessor] – the only difference is that he doesn’t wear heels.” When Crump told Romero that he didn’t appreciate being referred to as the “new Ruby,” he says Romero told him to “’get over it’ and chuckled as he walked away.”

The lawsuit also details comments Romero allegedly made about other LAPD employees, calling one a “quirky, effeminate guy;” and of another, “She’s a militant, don’t ask/don’t tell activist lesbian,” among other similar comments.

The lawsuit also reports how in January 2009, a lesbian co-worker “remarked that Lt. Romero made the office environment stressful and that she saw Romero treating Plaintiff and others poorly.”  That lesbian left the Media Relations Department one month later, which was closely followed by an inquiry into the concerns about the hostile work environment from then-Assistant Chief Jim McDonnell’s office. Before he left the LAPD, McDonnell had an extraordinarily good relationship with the LGBT community.

And people think this blatant discrimination won't happen in California just because we have strong laws against it? It's up to the justice system to enforce the laws on the books.

Here's a local media report on the Crump verdict:

Los Angeles - A Los Angeles police sergeant who claimed he was the victim of retaliation for being gay was awarded $1.16 million by a jury today. 

A Los Angeles Superior Court jury deliberated for part of Wednesday afternoon and most of today before finding in favor of Sgt. Ronald Crump. 

"This was not a case about Ronald Crump being gay, but about the department's retaliation against him," attorney Gregory Smith said on behalf of Crump. 

Smith said his client's involuntary transfer from the Los Angeles Police Department's Media Relations Section in 2009 after complaining about his treatment from his boss at the time, Lt. John Romero, left the sergeant without a chance for significant promotions and pay increases. 

"He's not going anywhere in this department," Smith said during closing arguments Wednesday. "He is finished forever. They have completely destroyed his career for any advancement or promotion." 

Deputy City Attorney Daniel Aguilera declined to comment on the verdict. However, his colleague, Deputy City Attorney Shaun Dabby Jacobs, told jurors that Crump did not lose rank or pay with his changes of position and earns about $110,000 annually. She also said that months passed after he began the media relations assignment before he complained about alleged mistreatment.

I wonder what City Attorney Carmen Trutanich and LAPD Chief Charlie Beck will say about the Crump case the next time they address a large openly LGBT audience during one of their regular community forums?

Heterosexual Supremacists File Motion Over Prop 8 Judge's Sexuality

Charles Cooper, lead counsel for "Protect Marriage" (sic)
 in the Propositiopn 8 federal lawsuit 

Charles Cooper, the virulent heterosexual supremacist who has been arguing against marriage equality for nearly two decade, filed a motion late on Monday with the 9th U.S. Court of Appeals to vacate Judge Vaughn Walker's historic decision striking down Proposition 8 on federal constitutional grounds because Walker revealed recently that he has been in a same-sex relationship with a man for 10 years.

Of course, this is a ridiculously bigoted motion. The implication is that an open;y gay judge can not fairly judge a case involving gay rights, a Black or Latino jurist could not judge a civil rights case fairly and female judges could not make decisions about abortion rights!

Lambda Legal  released a press release in response:

"Proponents of Proposition 8 certainly are getting desperate."

(San Francisco, April 25, 2011) — In reaction to today's filing of a motion
to vacate last year's historic decision by U.S. District Court Judge Vaughn
Walker declaring California's Proposition 8 unconstitutional, Jon Davidson,
Legal Director for Lambda Legal, issued the following statement.

"Proponents of Proposition 8 certainly are getting desperate.  This reeks
of a hail-Mary attempt to assail Judge Walker's character because they are
unable to rebut the extremely well-reasoned ruling he issued last year.
It's becoming a sadly typical move of the right:  don't like the ruling;
attack the referee."

To say that Judge Walker's should have disclosed his ten-year relationship
with another man or that it made him unfit to rule on Proposition 8 is like
saying that a married heterosexual judge deciding an issue in a divorce
proceeding has to disclose if he or she is having marital problems and
might someday be affected by legal rulings in the case.  Or that any judge
who professes any religious faith is unable to rule on any question of
religious liberty or, at a minimum, must disclose what his faith teaches.
Much like a suggestion that a female judge could not preside over a case
involving sexual harassment or an African American judge could not preside
over a case involving race discrimination, Proposition 8's supporters
improperly are suggesting that a judge will rule in favor of any litigant
with whom he shares a personal characteristic.

Judges hold a special and respected place in our society. Every day, they
are called upon to administer justice – in routine contract or traffic
court disputes, gut-wrenching child custody decisions, complex criminal
proceedings, and, as in this case, disputes about the basic human rights
that our Constitution is designed to protect. There may be judges who
betray their responsibilities and act with bias, but such a grave
accusation must be supported by evidence. Simply disagreeing with a
decision is not evidence that it was the result of bias. And assuming that
being in a same-sex relationship renders some judges unable to interpret
the law and do the job they have sworn to do insults both judges and
America's system of justice."

American Foundation for Equal Rights, the organization promoting the lawsuit, also has a response to Cooper's ridiculous motion:

“This motion is yet another in a string of desperate and absurd motions by Prop 8 Proponents who refuse to accept the fact that the freedom to marry is a constitutional right.  They’re attempting to keep secret the video of the public trial and they’re attacking the judge because they disagree with his decision.  Clearly, the Proponents are grasping at straws because they have no legal case.”

National Center for Lesbian Rights attorney Shannon Minter also responded:

"This is a desperate and ill-advised move that underscores their inability to defend Prop 8 on the merits. This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds. This is part and parcel of the underhanded way the Prop 8 campaign itself was run-based on lies, insinuations, and unsupported innuendo."

The 9th Circuit announced there will be hearing in San Francisco on July 11 in San Francisco before District Court judge James Ware.

UPDATE 04/27/2011: The hearing on Cooper's motion has been expedited to June 13.

Hat./tip to LGBTPOV

MAP: Which States STILL Criminalize Sodomy?

Actually, the headline should read "Which states still try to criminalize sodomy?" since even though these states have laws on the books which criminalize same-sex activity they are flagrantly unconstitutional thanks to the United States Supreme Court case of Lawrence v. Texas.

Hat/tip to Mother Jones.

Arkansas Supreme Court Strikes Down Anti-Gay Initiative

Great news out of Arkansas! (I don't think I have typed that sentence very many times before.) In November 2008, voters passed Initiative Act 1 by a vote of 57-43 but Thursday the Arkansas Supreme Court unanimously ruled it unconstitutional and struck the measure down in Arkansas Dep't of Human Services v. Cole. The ballot measure banned unmarried, cohabiting couples from being considered for the adoption or foster care of children in Arkansas. Of course, Arkansas also bans same-sex couples from marrying, so Initiative Act 1's passage implicitly banned all same-sex couples from adopting or fostering children in the state.

As always, Chris Geidner of Poliglot summarizes the legal issues perfectly:

The court noted: 

We hold that a fundamental right to privacy is at issue in this case and that, under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes. We further hold that this right is jeopardized by Act 1 which precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care. We quickly note that in certain instances, such as in custody, visitation, or dependency-neglect matters, the State and the circuit courts of this state have a duty to protect the best interest of the child. We will discuss this issue more fully below.

Then: 

We strongly disagree with the State and FCAC’s conclusion that if this court finds that the categorical ban on adoption and fostering for sexual cohabitors put in place by Act 1 violates an individual’s fundamental right to sexual privacy in one’s home, state courts and DHS will be prohibited henceforth from considering and enforcing non-cohabitation agreements and orders in deciding child-custody and visitation cases as well as dependency- neglect cases. That simply is not the case. The overriding concern in all of these situations is the best interest of the child. 

Finally: 

Thus, Act 1 directly and substantially burdens the privacy rights of “opposite-sex and same-sex individuals” who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner. The pressure on such couples to live apart, should they wish to foster or adopt children, is clearly significant. ...

Here Act 1 presents a pernicious choice for Cole. She can either give up her fundamental right to sexual intimacy in her home free from investigation by the State into her sexual practices in order to adopt or foster or forego the privilege of having children by adoption or fostering. We hold that the burden inflicted on her is direct and substantial. 

The court, thus, concluded: 

We conclude that the individualized assessments by DHS and our trial courts are effective in addressing issues such as relationship instability, abuse, lack of social support, and other factors that could potentially create a risk to the child or otherwise render the applicant unsuitable to be a foster or adoptive parent. These would be the least restrictive means for addressing the compelling state interest of protecting the welfare, safety, and best interest of Arkansas’s children. By imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the State and our courts to conduct these individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents. As a result, Act 1 fails to pass constitutional muster under a heightened-scrutiny analysis.

If an Arkansas Supreme Court will strike down such a statute it shows that heterosexual supremacists trying to pass similar ballot measures in other states would very likely face even more hostile courts in other jurisdictions.

An important win for the good guys! Another reason I'm a card-carrying member of the ACLU.

Openly Gay Federal Judge Nominee Has Low-Key Hearing

J. Paul Oetken, potentially the first openly gay man to become a federal judge, had an uneventful hearing before the United States Senate judiciary committee on Wednesday March 16th, with no Republican opposition.

Chris Geidner of Metro Weekly reports:

J. Paul Oetken, an out gay attorney who worked at Jenner & Block and Debevoise & Plimpton, also spent substantial time in government, working in both the Justice Department's Office of Legal Counsel and the White House under President Clinton. A former law clerk to the late Supreme Court Justice Harry Blackmun, Oetken currently serves as the senior vice president and associate general counsel at Cablevision.

He was nominated, on Schumer's recommendation, for a judgeship on the Southern District of New York -- one of the key federal trial courts in the nation.

In Schumer's introduction of Oetken, the senator noted that, in addition to records of excellence and moderation, "I also look for candidates who bring diverse views and backgrounds to the bench. Paul is the first openly gay man to go through an Article III confirmation process in this country, which makes this moment historic. But long after today, what the history books will note about Paul is certain to be his achievements as a fair and brilliant judge."

We'll be monitoring the progress of this nomination carefully. It is doubtful that one of the rabidly anti-gay Republican members of the United States Senate will skip this opportunity to  curry favor with heterosexual supremacists and prevent an openly gay man from making history as a federal judge, even one as obviously well-qualified as Oetken.

The question is, how hard will the Democratic majority and the President fight to confirm the President's nominees, especially in light of the very real prospect of loss of Senate control in 2012.

Illinois Becomes 16th State To Abolish Death Penalty

Illinois abolished the death penalty this week when Democratic Governor Pat Quinn signed SB 3539 into law, which was passed by the state legislature in January. There are now 16 states (not even 1/3 of the Union) which do not have their ability to waste money to kill their own citizens, regardless of the criminal conviction.

The New York Times reported:

Dozens of family members of victims had signed a letter to the legislature supporting the bill, arguing that capital trials and appeals “drag victims’ loved ones through an agonizing and lengthy process, which often does not result in the intended punishment.”


The current and future mayors of Chicago took different sides, with Mayor Richard M. Daley supporting capital punishment, and Rahm Emanuel, who will became mayor this spring, saying the ban was the right thing to do.


Illinois joins a wave of states that have reconsidered capital punishment. New Jersey abolished the practice in 2007. The New Mexico Legislature ended the death penalty in 2009. New Mexico’s newly elected governor, Susana Martinez, a Republican, has asked the Legislature to reinstate it, though bills to do so have stalled. The Connecticut legislature voted to abolish the penalty last year, but the governor at the time, M. Jodi Rell, a Republican, vetoed the measure.

Governor Quinn issued a statement:

Since the General Assembly passed this bill, I have met or heard from a wide variety of people on both sides of the issue. I have talked with prosecutors, judges, elected officials, religious leaders from around the world, families of murder victims, people on death row who were exonerated and ordinary citizens who have taken the time to share their thoughts with me. Their experiences, words and opinions have made a tremendous impact on my thinking, and I thank everyone who reached out on this matter.


After their guidance, as well as much thought and reflection, I have concluded that our system of imposing the death penalty is inherently flawed. The evidence presented to me by former prosecutors and judges with decades of experience in the criminal justice system has convinced me that it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.


As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government. Since 1977, Illinois has seen 20 people exonerated from death row. Seven of those were exonerated since the moratorium was imposed in 2000. That is a record that should trouble us all. To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice.


Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it. With our broken system, we cannot ensure justice is achieved in every case. For the same reason, I have also decided to commute the sentences of those currently on death row to natural life imprisonment, without the possibility of parole or release.


I have found no credible evidence that the death penalty has a deterrent effect on the crime of murder and that the enormous sums expended by the state in maintaining a death penalty system would be better spent on preventing crime and assisting victims’ families in overcoming their pain and grief.


To those who say that we must maintain a death penalty for the sake of the victims’ families, I say that it is impossible not to feel the pain of loss that all these families share or to understand the desire for retribution that many may hold. But, as I heard from family members who lost loved ones to murder, maintaining a flawed death penalty system will not bring back their loved ones, will not help them to heal and will not bring closure to their pain. Nothing can do that. We must instead devote our resources toward the prevention of crime and the needs of victims’ families, rather than spending more money to preserve a flawed system.

As a long-standing member of Amnesty International, I say "Congratulations!" to Illinois. Governor Quinn has now signed into law death penalty abolition and civil unions enactment. The state is becoming a more progressive by leaps and bounds.

British Homophobes Lose Another Religious-Based Lawsuit

Eunice and Owen Johns are a British couple who went to court to seek the right to foster
children and indoctrinate them with their homophobic (allegedly faith-based) views

There is a cause célèbre legal case which is exciting religious heterosexual supremacists on both sides of the Atlantic Ocean. It pits religious belief versus non-discrimination based upon sexual orientation. The Johns are a couple of Pentecostal Christians from Derby, England who wanted to become foster parents to young children but also felt that they were not willing to "tell a small child that the practice of homosexuality was a good thing."

The Johns sued the Derby City Council and lost.

Andrew Brown in The Guardian ("The law of England is not Christian") quotes Lord Munby's decision:

"We are simply not here concerned with the grant or denial of State 'benefits' to the claimants. No one is asserting that Christians (or, for that matter, Jews or Muslims) are not 'fit and proper' persons to foster or adopt. No one is contending for a blanket ban. No one is seeking to de-legitimise Christianity or any other faith or belief. No one is seeking to force Christians or adherents of other faiths into the closet. No one is asserting that the claimants are bigots. No one is seeking to give Christians, Jews or Muslims or, indeed, peoples of any faith, a second class status. On the contrary, it is fundamental to our law, to our polity and to our way of life, that everyone is equal: equal before the law and equal as a human being endowed with reason and entitled to dignity and respect."

Additionally, the Johns case quotes an earlier decision written by Lord Laws regarding whether religious belief could exempt clerks from performing same-sex civil partnerships:

"The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself."


"So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime."

It would be incredible if we could get such a strong judicial opinion about the separation of church and state from our Highest Court. Andrew Brown finished with a statement which has immediate implications for the kulturkampf (culture war) about homosexuality we are currently engaged in:

Obviously, these judgments will have a considerable effect on evangelical protestantism in this country, which has always taken the view that we are, or should be, a Christian nation. But I think the greatest effect will not be on pentecostalists like the Johnses. They can adjust quite easily to the idea that they live under a heathen or godless regime. It is the old-fashioned evangelical wing of the Church of England which will be most upset and confused by these clear statements of principle.

Repeat after me: America is NOT a Christian nation.

Hat/tip to Joe.My.God.

CA-AG Harris Asks Court To Lift Prop 8 Ruling Stay

Attorney General Kamala D. Harris

Wow! Yesterday I blogged about a Los Angeles Times editorial ("Same-sex weddings, now") that called for the 9th Circuit to lift their stay of U.S. District Court Judge Vaughn Walker's August 4, 2010 ruling striking down Proposition 8 from going into effect, effectively legalizing same-sex marriage in California again. I opined that I thought it was unlikely the 9th Circuit would lift the stay, even though they have effectively delayed the case by as much as 11 months by asking the California Supreme Court whether they think that under California law the proponents of Proposition 8 have the right to defend a ballot measure when the elected representatives (Governor and Attorney General) the people have refuse to do so. (This is a bizarre delay because Proposition 8 is now in federal court, and there is also a question of standing under federal law, notwithstanding whether the Proposition 8 heterosexual supremacists have standing under state law.)

Today comes word that our current Attorney General (and the former Governor Arnold Schwarzenegger) Kamala Harris agrees with the position that same-sex marriages should be legal in California while the courts wrangle and have filed papers with the 9th Circuit Appellate Court asking them to lift the stay:

Attorney General Harris said it is unlikely that an appeal will succeed in overturning Judge Walker's ruling that Proposition 8 is unconstitutional. The appeal's likelihood of success has been substantially diminished, Attorney General Harris said, "both by the United States Attorney General's conclusion that classifications based on sexual orientation cannot survive constitutional scrutiny and by this Court's certification order to the California Supreme Court, which seriously questions the Court's jurisdiction to decide the merits of the case."

In addition, Attorney General Harris said, "there is no injury that the proponents of Proposition 8 will suffer if same-sex couples are permitted to enter into civil marriages in California." But as long as the stay on same-sex marriages remains in effect, Attorney General Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker's ruling legally inappropriate.

"The President and the United States Attorney General have determined that they will not continue to defend the Defense of Marriage Act (‘DOMA')," Harris said, "because it enforces a classification that fails to meet the heightened standard of scrutiny that should apply for equal protection analysis under the Fifth Amendment."

The California Attorney General's long-standing position, Harris told the Ninth Circuit, is that Proposition 8 "violates the equal protection clause of the Fourteenth Amendment of the United States Constitution."

"For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples," Attorney General Harris said. "Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied." 

Wow. I guess elections really do have consequences. I can not imagine Republican Steve Cooley issuing such a strong statement in favor of LGBT rights.

Even if the 9th Circuit Court of Appeals does lift the stay, opponents could appeal to the U.S. Supreme Court, which almost definitely would maintain the stay.

It will be curious to see what "harm" heterosexual supremacists will tell a court that they will undergo if Proposition 8 is allowed to be in limbo pending a future court decision.

L.A. TIMES Op Ed: "Same-sex weddings, now"

Today's Los Angeles Times runs an editorial in favor of ending the stay on Judge Vaughn Walker's ruling declaring Proposition 8 unconstitutional and calls for same-sex marriages to resume immediately while the legal wrangling at the 9th U.S. Circuit Court of Appeals and California Supreme Court get settled.

Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.

Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system.

The state Supreme Court was asked by the U.S. 9th Circuit Court of Appeals to rule on whether supporters of Proposition 8 have the right — known as "standing" — to continue with their case. It indicated that it would hear arguments late this year, with a ruling likely to follow a few months later. Meanwhile, a stay pending the outcome of the appeal has kept gay weddings from going forward. Now, however, the lawyers challenging Proposition 8 have asked the 9th Circuit to lift the stay and allow the weddings to take place. We agree that it should.

Every day that the case drags on, gay and lesbian couples who would like to marry are being deprived of their civil rights. That's not our wording; the federal trial judge decided that issue, at least for now. The denial of constitutional rights, even temporarily, is a deplorable situation that must meet high legal standards to be allowed to continue. In our view, those conditions have not been met.

First, a stay should be issued only if there is a strong likelihood that the appealing party — in this case, the supporters of Proposition 8 — will prevail in court. Yet there are serious questions about whether they even have the standing to appeal, so the outcome is very uncertain. There are other factors the courts take into account when deciding whether to keep a stay in place. Those filing the appeal must show that they would be irreparably harmed if the stay were lifted; the courts also take into account where the public interest lies. During the trial, the supporters of Proposition 8 were unable to identify any harm that would befall them if same-sex weddings took place.

Certainly it would be messy if California were to resume performing wedding ceremonies for gay and lesbian couples, only to have to stop again when another ruling comes down. But there may be no other option. Right now, same-sex couples are being deprived of their constitutional right to marry, and every indication is that unless the stay is lifted, they'll have to keep waiting for more than a year. That is real harm, and there is no valid reason to allow it to continue.

I think it is unlikely that the Courts will agree to lift the stay, but I do agree that the harm to same-sex couples who would like to get married in California should not be discounted, especially  when it is looking increasingly likely that Proposition 8 will not survive judicial scrutiny.

Celebrity Friday: Jenny Pizer Leaves Lambda Legal For UCLA Law

Jennifer Pizer

The longtime Marriage Director of the Lambda Legal Defense and Education Fund, Jennifer C. Pizer, has decided to jump ship to the Williams Institute on Sexual Orientation Law and Public Policy at UCLA Law School, where she will become Legal Director and The Arnold D. Kassoy Senior Scholar of Law.

In this newly endowed position at the Williams Institute, Pizer will lead the Institute's projects related to legal research and analysis on LGBT issues.  Her work will include conducting legal research, writing articles and commentary, drafting amicus briefs for key court cases, drafting and providing testimony for legislation, organizing and conducting education programs for judges and lawyers, and teaching courses at UCLA. 

Pizer is a graduate of Harvard College and New York University School of Law.  After law school she served as a judicial clerk to the Hon. Ann Aldrich of the U.S. District Court for the Northern District of Ohio, was Legal Director of the National Abortion Rights Action League, and practiced intellectual property and business torts litigation with Townsend and Townsend and Crew LLP in San Francisco.  She comes to the Williams Institute from a very successful career at Lambda Legal Defense and Education Fund, where she was Senior Counsel and the National Marriage Project Director.    

As an Adjunct Professor, Pizer has taught courses on sexual orientation law at USC Law School, Loyola Law School, and Whittier Law School.  Her publications include, “The Effects of Unequal Access to Health Insurance for Same-sex Couples in California” published in Health Affairs 29, No. 8 (2010), with Ninez Ponce, Susan Cochran, and Vickie Mays; “Facial Discrimination: Darlene Jespersen’s Fight Against the Barbi-fication of Bartenders,” published in Duke Journal of Gender Law & Policy, Vol. 14, Issue 1 (2007); “Arresting ‘The Plague of Violence’: California’s Unruh Act Requires School Officials to Act Against Anti-Gay Peer Abuse,” published in 12Stanford Law & Policy Review 63 (2001), with Doreena Wong.   She has commented extensively on LGBT legal developments for both leading national media and the legal press.

Congratulations, Jenny!