ACLU Sues Michigan Over Anti-Gay DP Benefits Law

Previously MadProfessah had blogged about a new discriminatory law signed into effect by Republican Governor Rick Snyder which would ban public employees (at the state, county, or city level) from receiving benefits based on domestic partner status. Now comes word that the American Civil Liberties Union is suing the Governor and the state of Michigan to strike down the law in court.

The case is known as Bassett v. Snyder:

The lawsuit charges that the new law discriminates by categorically denying domestic partners access to benefits and violates the constitutional right to equal protection by forcing gay and lesbian employees in committed relationships to carry the financial hardship and anxiety of being uninsured, while allowing heterosexual couples to marry and receive family health protections. In addition, the law only bars domestic partners from receiving health care coverage, while allowing government employers to offer benefits to all other family members, including parents, siblings, uncles and cousins.

“It’s unconstitutional for the state of Michigan to deprive a small number of workers the means to take care of their loved ones when other similarly situated workers do have access to family coverage,” said Amanda C. Goad, staff attorney for the ACLU LGBT Project. “In an economic downturn, the state should be passing laws to make it easier for families to take care of each other, not to take protections away.”

Proponents point to the “high cost” of domestic partner health care coverage as the motivating force to enact such a law. However, an analysis of programs across the state proves these numbers to be wildly inaccurate. In fact, studies show such coverage, in addition to attracting and retaining the best employees, costs well under one percent of the health care budget of public employers who voluntarily provide these benefits. In addition, unlike married couples, domestic partners must pay taxes to the state on their health insurance benefits – revenue the state would lose under the new law.

As Ari Ezra Waldman over at TowleRoad comments, this case is really about more than just domestic partnership benefits, it's about whether the state can discriminate on the basis of sexual orientation without a legitimate governmental purpose or compelling justification.

The answer is, of course, "heck no!"

SCOTUS Aiming To Be Factor In 2012 Elections

The U.S. Supreme Court has announced some decisions recently which indicate that they will be a major factor in the 2012 presidential election. They announced they would decide three politically fraught cases: the constitutionality of the health care reform law, the constitutionality of Texas's congressional redistricting map and the constitutionality of Arizona's wildly xenophobic immigration law SB-1070.

Romney Pledges Heterosexual Supremacy

Republican presidential candidate Mitt Romney signed a pledge from the National Organization of Marriage to affirm his support for heterosexual supremacy in America. This entails:

1. To support and send to the states for ratification a federal marriage amendment defining marriage as the union of one man and one woman.
2. To do vigorously what President Obama has refused to do: defend the Defense of Marriage Act in court.
3. To appoint to the Supreme Court, and as his or her Attorney General, only those who support the original meaning of the Constitution and who will, therefore, not invent a right to gay marriage.
4. To establish a presidential commission to investigate the increasing reports of harassment and threats to supporters of traditional marriage.
5. And to give back to the people of D.C. the right already guaranteed in the Charter which Congress gave them: the right to vote on marriage via the referendum process.

Where to begin? I guess let's address them one at a time. The Federal Marriage Amendment didn't get out of the U.S. House of Representatives when the Republicans controlled the Presidency, the House and the Senate majority in July 2006 and popular support was below 50%. Why would anyone expect a measure to divorce the estimated 100,000 same-sex married couple in the country to be more successful in 2013? It takes a vote of 2/3rds of BOTH Houses of the Legislature and then ratification of 3/4 of the states to be enacted. In 220 years the document has been Amended 27 times, and 10 of those happened within the first 5 years. A federal marriage amendment is not going to happen!

The second item (to defend DOMA) is obvious, but by the time a Republican could become President on January 20, 2013, the Defense of Marriage Act may already have been struck down by multiple federal appellate courts and perhaps even the U.S. Supreme Court.

The fact that Romney, Michele Bachmann and Rick Santorum signed the third item should mean they are immediately disqualified to serve as President. They are basically saying that they will have a particular litmus test for Supreme Court nominees (and Attorney General).

The fourth item is just sheer buffoonery. As the discriminatory position of heterosexual supremacists to envision a society in which heterosexuals have more civil rights than non-heterosexual becomes more and more a repulsive position to a greater majority of American voters, the supremacists have begun to claim that any opposition to their radical ideology in verbal or written form is "harassment" or "intolerance towards religion." The idea of a President Commission to explore harassment and threats to people who have been publicly calling for LGBT people to have less rights than other Americans is simply laughable.

The fifth item is just obnoxious. Marriage equality has been legal in the District of Columbia since March 4, 2010 after a measure was approved by a near-unanimous vote of its law-making body in December 15 2009. After filing multiple lawsuits in order to force a vote of the majority on the rights of the minority despite explicit provisions in the D.C. Charter which prevents such inimical actions, those attempts came to an ignominious end with a Supreme Court refusal to hear their appeal on January 18, 2011.

It should be interesting to see which other Republican presidential candidates are willing to sign NOM's pledge to heterosexual supremacy. I presume Rick Perry will be next in line to add his name to this foolishness.

BREAKING: 9th Circuit Kills DADT (Again)

Wow! A (admittedly decidedly liberal) 3-judge panel of the 9th U.S. Circuit Court of Appeals has unanimously lifted a stay against the U.S. Government from enforcing "Don't Ask, Don't Tell" in the case Log Cabin Republicans v. United States.

Here's the text of the order filed today:

Filed order (ALEX KOZINSKI, KIM MCLANE WARDLAW and RICHARD A. PAEZ) The Clerk shall amend the docket to reflect that Leon E. Panetta, Secretary of Defense, is substituted for Robert M. Gates, Secretary of Defense, as an appellant/cross-appellee. See Fed. R. App. P. 43(c)(2). Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (stating standard); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (same). In their briefs, appellants/cross-appellees do not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay. Appellee/cross-appellant’s alternative request to expedite oral argument is granted. The Clerk shall calendar this case during the week of August 29, 2011, in Pasadena, California. Briefing is completed.

And here's Legal Eagle Chris Geidner explaining what it means:

DADT cannot be enforced, per the order, unless the government gets a stay of the order from either the Ninth Circuit of the U.S. Supreme Court pending an appeal of today's decision.

Cynthia Smith, a Department of Defense spokeswoman, tells Metro Weekly that Pentagon officials "are studying the ruling with the Department of Justice" but added, "We will of course comply with orders of the court, and are taking immediate steps to inform the field of this order." 

The three-judge panel -- Judges Alex Kozinski, Kim Wardlaw and Richard Paez -- based the decision to lift the appellate court's earlier stay of Phillips's order pending the appeal of the LCRcase is based, the judges write, because, "The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."

Among the citations by the court is the July 1 filing in Karen Golinski's federal case seeking health insurance benefits for her wife and the related Feb. 23 letter from Attorney General Eric Holder declaring that he and President Barack Obama had decided that heightened scrutiny applies to classifications -- such as DADT.

The judges also note that "the process of repealing Section 654 [-- the DADT law --] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer." Smith echoed this fact, writing to Metro Weekly, "[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away."

You will recal DADT was also not in effect worldwide or 8 days last fall when the Log Cabin Republicans first won an injunction against the government from federal judge Virginia Phillips. Now they have won at the appellate level as well on the question of the stay. The oral arguments about the merits of the case will be heard on August 29th. The government can ask for an en banc panel (11-judge panel) of the 9th Circuit or ask the US Supreme Court for a stay on the latest injunction against the enforcement of DADT..

It will be interesting to see what they do because the statute in question should be moot in a few weeks anyway when the DAT repeal is certified. However, there are some questions about whether sexual orientation will be a category of non-discrimination (which the lawsuit asks for but the legislation does not contain) and also whether the Uniform Code of Military Justice will include consensual sodomy (there is legislation in this year's Defense Authorization bill to repeal the UCMJ sodomy language).

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