The Military Must Lead in Advocating for Marriage Equality

Matthew Alex Ward

Pictured: Colonel Ginger Wallace and Kathy Knopf.
Credit: American Military Partner Association

Through explicit statements and an array of support programs, the military has demonstrated its deep commitment to military families. In addition, since the passage of the Don’t Ask, Don’t Tell Repeal Act in 2010, which permitted LGB servicemembers to serve openly, the military has clearly expressed its belief that sexual orientation is a ‘nonissue’ in the military. Given these facts, it would seem that the military would not seek to discriminate between military families based on sexual orientation.

Yet the Defense of Marriage Act (DOMA) frustrates this logical outcome. DOMA prevents the federal government from recognizing same-sex marriages and permits states to refuse to acknowledge same-sex marriages from other states. As a result, DOMA prevents the military from supporting all its military families, even as the military recognizes that family readiness improves military readiness and the efforts of military spouses benefit the military. In addition, inconsistent state laws on same-sex marriage create obstacles for LGB military families. Only once same-sex marriage is recognized nationwide will the military be able to make sexual orientation a true nonissue and realize its promise to support the families of all servicemembers. The military must, therefore, lead in the fight for marriage equality.

View Complete Article (PDF)

Protecting the Margins: Intersectional Strategies to Protecting Gender Outlaws from Workplace Harassment

Sheerine Alemzadeh

Sexual harassment jurisprudence is predicated on heteronormative constructions of desire and power in the workplace. Harassment claims brought by gay and lesbian workers explode this binary gender paradigm by challenging the premise that desire can only flow between workers of different biological sexes. While courts have striven to integrate LGBT workers into existing anti-harassment legal regimes, the contortions made to achieve such integration expose the under-inclusiveness of sexual harassment doctrine in its current form. Workplace harassment on the basis of gender non-conformity, whether manifested as discrimination against gay workers, or against employees who refuse to adhere to norms of gender identity and performance, is largely unprotected under Title VII. Legislators have recognized that Title VII leaves these groups unprotected and have proposed new legislation, the Employment Non-Discrimination Act (ENDA), as a means to protect these groups. Legislators––and academics––have argued that ENDA will adequately address discrimination experienced by LGBT workers.

This paper provides a critique of the proposed Employment Non-Discrimination Act as a catch-all solution to curbing workplace discrimination against gender outlaws. It compares the similar analytical deficiencies of Title VII and ENDA, arguing that both laws strive to protect discrete classes of workers, rather than to dismantle discriminatory strategies employers deploy to maintain gender rigidity, and ultimately gender hierarchy, in the workplace. By excising sexual orientation from Title VII’s prohibition on gender discrimination, ENDA proponents risk eliding the important point that LGBT identity is a manifestation of gender non-conformity. This paper argues that the enactment of ENDA is not enough; Title VII must expand and evolve to cover discrimination waged against all forms of gender non-conformity. A two-pronged Title VII and ENDA approach would preserve the critical connections between discrimination, discipline, and violence targeted towards workers who fail to adhere to the gender norms of the workplace.

View Complete Article (PDF)

Election Day LGBT Victories and Supreme Court Review

by Carson Baucher

Election Day 2012 not only saw the reelection of America’s first black president, but it also resulted in an historic set of victories for the LGBT community: Wisconsin’s Tammy Baldwin became the first openly gay person elected to the United States Senatefour LGBT individuals will join the House of Representatives, including the first openly bisexual federal lawmaker and the first openly gay federal lawmaker of color; Colorado elected its first gay speaker of the HouseMinnesota voters voted against a ban on same-sex marriage; and voters in three states affirmatively voted to legalize same-sex marriage.

In light of these substantial political victories, the question remains how the courts will grapple with changing public sentiment towards LGBT individuals and issues.  The Supreme Court is likely to give us a hint if it chooses to hear either Perry v. Brown, in which the Ninth Circuit Court of Appeals struck down California’s Proposition 8, or one of the four cases working their way through the federal courts this year regarding the constitutionality of Section 3 of the Defense of Marriage Act (DOMA).  DOMA limits the definition of “marriage” for federal and inter-state purposes to “a legal union between one man and one woman,” leaving same-sex spouses without many benefits available to opposite-sex spouses.

The DOMA Cases

In the last six months, federal courts have addressed the constitutionality of DOMA in four cases: Golinski v. Office of Personnel Management[1] and Dragovich  v. U.S. Department of Treasury,[2] decided in May by the District Court for the Northern District of California; Massachusetts v. U.S. Department of Health and Human Services (often referred to as Gill, the name of one of the plaintiffs in this consolidated decision),[3] decided by the First Circuit; and Windsor v. United States,[4] decided by the Second Circuit.

All four of these cases ultimately came to the same conclusion: DOMA violates the Fifth Amendment’s guarantee of equal protection.  The courts came to this conclusion, however, using different levels of equal protection analysis.[5]  The Northern District of California in Dragovich, for instance, analyzed DOMA under rationality review, a highly deferential test that requires the government to show merely that the law is rationally related to a legitimate government interest.  Despite this low bar, the Dragovich court found that DOMA failed rationality review because the law was motivated by anti-homosexual animus, which, under Romer v. Evans,[6] is not a legitimate government interest.[7]

The Second Circuit in Windsor, on the other hand, found that the rational basis test was the inappropriate standard of review for statutes that classify on the basis of sexual orientation.  In an historic move, the Second Circuit became the first federal appellate court to find that gays and lesbians constitute a “quasi-suspect” class.  This classification shows that the Windsor court worried about discrimination against gays and lesbians and, as a result, would be skeptical of laws that disadvantage them.  As a result, the Second Circuit subjected DOMA to intermediate scrutiny, under which the statute can only survive if it is substantially related to an important government interest.  Intermediate scrutiny is the standard of review applied to laws that draw distinctions on the basis of sex or illegitimacy.

The First Circuit in Gill applied a test somewhere between rationality review and intermediate scrutiny, which some commentators have described as “rational basis with bite.”[8]  The court found that DOMA was subject to a more exacting version of rationality review because of problems DOMA posed to principles of federalism.  According to the First Circuit, marriage is an institution traditionally regulated by the states, and DOMA’s incursion into such regulation required that the “federal government interest … be shown with special clarity.”[9]  Under this standard of review, DOMA failed.

In Golinski, the Northern District of California covered all of its bases and subjected DOMA to both intermediate scrutiny and standard rationality review.  The court found the statute deficient under both tests.

Election Day Victories for the LGBT Community and their Ramifications for Supreme Court Review of DOMA

At least one of the DOMA cases will likely go before the Supreme Court, and Election Day’s LGBT political victories might well affect the high court’s views.  Opinions are not written in a vacuum.  At times, the Court looks beyond precedent and legal treatises to the political realities of the day.  Indeed, in some of its key civil rights opinions in the past, the Supreme Court has grounded its analyses in the political stance taken by the states on the particular subjects at issue.  In Lawrence v. Texas, for example, which struck down Texas’s same-sex anti-sodomy statute, the Court referenced the fact that “25 States with laws prohibiting the relevant conduct … are reduced now to 13, of which 4 enforce their laws only against homosexual conduct.”[10]  It went on to state that “[t]hese references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”[11]

Even in the DOMA cases, courts have bolstered their rulings on the statute’s unconstitutionality with statistics that indicate increasing political and popular support for state recognition of same-sex relationships.  The Northern District of California in Dragovich, for instance, noted that “[f]or more than two decades, jurisdictions … have extended to same-sex couples legal recognition in various forms …. Over time, the number of jurisdictions granting these forms of legal recognition has increased.”[12]  Given the courts’ awareness of the goings-on in the political sphere, it is likely that the expansion of same-sex marriage rights in three states will drive courts to be even more wary of a federal statute that cuts against this growing trend.

In addition, the growing list of states that support marriage equality implicates concerns about federalism.  Same-sex couples can now marry in nine states and the District of Columbia, but DOMA bars the federal government from recognizing any of these marriages.  This means that DOMA’s interference affects marriages in nearly 20 percent of the 50 states and in the nation’s capital. If the Supreme Court reviews DOMA, it might adopt an analysis similar to the one the First Circuit employed in Gill, where states’ rights concerns required the court to engage in a level of scrutiny more exacting than mere rationality review.

Despite strong arguments that the political victories of Election Day will increase the likelihood that the Supreme Court will find DOMA unconstitutional, there is one potential drawback.  Windsor and Golinski both subject DOMA to heightened scrutiny on a finding that gays and lesbians constitute a quasi-suspect class.  The Second Circuit and the Northern District Court for California made such a finding after engaging in a test that traditionally examines four characteristics of the purported suspect class.  One relevant factor in the analysis is whether gays and lesbians are a politically weak minority.  The successes seen by the LGBT community on Election Day certainly demonstrate that gays and lesbians are growing in political strength.  Does this diminish the necessity of protecting LGBT citizens through the judicial process of intermediate scrutiny?

While the strengthened political status of LGBT individuals demonstrated by the victories of Election Day is a potential problem for the case that intermediate scrutiny should apply to DOMA, it likely will not be enough of a concern to eliminate the application of this level of scrutiny.  The courts in Windsor and Golinski recognize that the LGBT community has seen some success in the political arena, but nonetheless found that gays and lesbians remain a politically weakened minority.  The victories of Election Day – while they are a meaningful indication that public sentiment towards the LGBT community is moving in the right direction – are only a small step towards political equality.  It is therefore unlikely that the Court will forego intermediate scrutiny on the basis of Election Day’s LGBT successes.

In the past year, DOMA has been reviewed by five federal courts and, each time, has been struck down as unconstitutional.  If and when the Supreme Court hears one of the DOMA cases, the political victories of Election Day 2012 are sure to play into the Court’s decision, either as an explicit component of its analysis, or as an implicit consideration.

For the LGBT community, the importance of Election Day cannot be understated.  As one commentator put it, “[T]he game has changed forever. … LGBT Americans should walk a little taller and dance a little harder.  It just got better.”  The nine individuals who make up the Supreme Court are officers of a neutral judiciary, but they are people too, and in a moment in history when so many Americans have finally cast their vote for LGBT rights, it is difficult to imagine that the hearts of the justices have remain untouched, even from the distant vantage point of the nation’s highest bench.

Carson Baucher is a 2L at NYU and Staff Editor on the Review of Law & Social Change.

[1] Golinski, 824 F.Supp.2d 968 (N.D. Cal. 2012).

[2] Dragovich, No. C 10–01564 CW, 2012 WL 1909603 (N.D. Cal. May 24, 2012).

[3] Gill, 682 F.3d 1 (1st Cir. 2012).

[4] Windsor, Nos. 12–2335–cv(L), 12–2435(Con), 2012 WL 4937310 (2d Cir. Oct. 18, 2012).

[5] The following case descriptions draw heavily from David B. Cruz, “Defense of Marriage Act Roundup” (June 14, 2012).

[6] Romer v. Evans, 517 U.S. 620 (1996)

[7] See id. at 632; Dragovich, 2012 WL 1909603, at *10.

[8] See Cruz, supra at n. 5.

[9] Gill, 682 F.3d at 10.

[10] Lawrence v. Texas, 539 U.S. 558, 773 (2003) (overruling an earlier Supreme Court case, Bowers v. Hardwick).

[11] Id. at 771-72.  Other Supreme Court decisions that look to the states for cues on where Americans stand on civil rights issues include Loving v. Virginia, 388 U.S. 1 (1967) and Roe v. Wade, 410 U.S. 113 (1973).

[12] Dragovich, 2012 WL 1909603, at *3.

Gay-Straight Alliances and Sanctioning Pretextual Discrimination Under the Equal Access Act

Jordan Blair Woods

Gay-Straight Alliance school bus

Gay-Straight Alliance school bus (Photo credit: jglsongs)

This article addresses manipulation of the federal Equal Access Act to allow prejudice and discrimination against lesbian, gay, bisexual, transgender, and questioning (LGBTQ) students who wish to form gaystraight alliances (GSA) in public schools. By focusing on patterns of argumentation in the recent surge of GSA litigation, this article argues that the incorporation of the constitutionally stringent standard developed by the Supreme Court in Tinker v. Des Moines Independent Community School District into the Equal Access Act’s safe harbor exceptions is necessary to prevent courts from discriminating against LGBTQ students and from giving effect to the private homophobic and transphobic prejudices of community members, parents, and school administrators. Incorporating a more deferential reasonableness standard into the Equal Access Act’s safe harbor exceptions allows school administrators to invoke LGBTQ student safety disingenuously as a pretext to ban GSAs; thus, the exact discrimination that the Equal Access Act was designed to prohibit

View Full Text (PDF)


Get every new post delivered to your Inbox.

Join 57 other followers