GLBT issues

  • March 11, 2011
    Religious Right groups in Maryland helped defeat a marriage quality bill that had the support of the state's Senate and governor.

    The measure, which would have allowed lesbians and gay men to marry, was defeated in the Maryland House of Delegates, where the measure was tossed back to a committee effectively ending any chance of passage in the current session.

    Gov. Martin O'Malley (pictured) said he would have signed the bill into law. Following the bill's demise, O'Malley said it was his "firm belief that equality under the law means equality for everyone, and our laws should reflect that fundamental principle."

    As The Washington Post reported, the measure ran into difficulty after religious right groups loudly fought the equality measure. The Rev. Nathaniel Thomas claimed, "We're not talking about anyone not having rights. But when you use the word ‘marriage,' that goes directly to what the church believes is a relationship between a male and a female.'"

    Equality Maryland, a public interest group, issued a statement expressing "disappointment," but perseverance to continue fighting for marriage equality.

    Five states, Iowa, Connecticut, Massachusetts, New Hampshire and Vermont, and the District of Columbia, recognize marriage quality rights, allowing gay men and lesbians to wed.

    [image via chesbayprogram]

  • March 2, 2011
    The over-the-top anti-gay group called the Westboro Baptist Church convinced a majority of the U.S. Supreme Court that its speech aimed at tarring gays, Jews, Catholics and American soldiers is protected by the First Amendment.

    In an 8-1 opinion issued this morning, the high court led by Chief Justice John Roberts found that the content of Westboro's speech "plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.'"

    For decades Fred Phelps and his tiny Kansas-based church, made up largely of his relatives, have traveled the country initially targeting the funerals of persons who had died of AIDS with signs reading "God Hates Fags." Eventually after antiviral drugs helped, in this country, to lessen the number of AIDS-related deaths, Phelps and his family turned to protesting funerals of soldiers, and with two American wars, the opportunities to amplify their vitriol again increased. According to its website "godhatesfags.com," Phelps and his family picket funerals of soldiers as part of a campaign attacking America for allegedly being tolerant of gays. Beyond posting invective on its web site, the small group travels the country to hoist signs at soldiers' funerals reading "God Hates the USA," and "Semper fi fags." When Phelps and his family brought their act to a Maryland funeral of Marine Lance Corporal Matthew Snyder, his father, Albert lodged a lawsuit against the group and won a jury verdict of $2.9 million in compensatory damages and $8 million in punitive damages. The jury verdict was overturned by an appeals court, citing First Amendment protection for Phelps.

    Writing for the majority in Snyder v. Phelps, Roberts said the content of Westboro's messages "may fall short of refined social or political commentary, the issues they highlight - the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy - are matters of public import," and ultimately protected by the First Amendment. "Such speech," Roberts wrote, "cannot be restricted simply because it is upsetting or arouses contempt."

    Justice Samuel Alito was the only member to dissent. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he wrote.

    Alito continued that Phelps' band has a freedom to "write and distribute books, articles, and other texts," and disseminate its commentary in other public ways, such as posting its commentary on its web site.

    "It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate," Alito said.

    Alito also questioned the majority's conclusion that the Phelps outfit was engaging in speech of public concern. He wrote that evidence showed that the group went "far beyond matters of public concern," and "specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern."

    Tom Goldstein, founder of SCOTUSblog provides some initial reaction to the opinion, noting:

    The Court left undecided two important issues that it concluded were not squarely presented. First, recognized that the government may regulate the "time, place, and manner" of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws. The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals' decision, did not call such statutes into question.

    Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.

  • February 25, 2011
    Guest Post

    By Peter Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University. This analysis was originally posted on Shane Reactions.

    A distinguished fellow law professor, Adam Winkler, has recently argued that the Obama Administration's decision not to defend the constitutionality of the federal Defense of Marriage Act (DOMA) is an abdication of the responsibilities of the presidential office. He wrote: "For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution's command that the president ‘shall take Care that the Laws be faithfully executed.'"

    This position, however, is wrong on history and reflects an incomplete reading of the Constitution.
    In analyzing this question, it's important to distinguish two very different things: the executive duty to carry out the law and the President's duty to defend statutes challenged in court. On the first matter, Attorneys General have long set a very high bar before opining that the executive branch can decline to carry out the law. In 1919, Attorney General A. Mitchell Palmer, justly infamous on other grounds, penned a line that Attorneys General have consistently followed on the issue of whether questionable laws should be enforced: "Ordinarily, . . .it is not within the province of the Attorney General to declare an Act of Congress unconstitutional-at least, where it does not involve any conflict between the prerogatives of the legislative department and those of the executive department."

    The only likely defensible exception to this stance would occur if Congress were to enact law plainly violating well-established constitutional rights. Thus, for example, if Congress purported to reestablish racial segregation in D.C. public schools, the executive branch could rightly decline implementation.