Amy Probenski wrote:My heterosexual marriage seems to be just as good today as it was yesterday -- so I'm still looking for the "threat" that those folks in Vermont and Iowa pose to our marriage!
Amy Probenski wrote:This is going to happen. It's a certainty that America will recognize unions between a broader class of couples than at present.
It is only this transitional period that is uncomfortable, ...
Jerry E. Clark in the Rockbridge Weekly wrote:Gays In The Military: Why Is This Even Being Discussed?
There seems to be some kind of logical disconnect going on in DC these days. Some politicians continue to waste the public’s time with respect to the “gays in the military” so-called issue.
The “issue” is not an issue at all. It comes down to getting religion involved in our national security. This is an emotional item that belongs elsewhere.
In fact, we have no business getting involved with who our fellow men and women wish to love or have a relationship with. We don’t have to like or dislike the sexual preferences of our fellow men and women, but we should respect their personal freedoms.
If there were any evidence that those preferring a so-called “gay” lifestyle impeded our fighting ability or ability to protect our great country in any manner, let the proponents of that evidence show up in a public forum and put it on the table.
They won’t show up because there is no such evidence; it’s all just emotion and religious-based opposition. That’s fine. Americans have the right to believe what they wish about such things. But it has no place in public policy and it attempts to create a new kind of second class group of citizens.
This debate is basically over and has been for decades. To go on and on about it is to totally waste the public’s time. The real issues are national security, war fighting ability and competence.
When somebody can show that sexual preference of one kind or another detracts from their operation of a weapon, a guidance system or other critical military function, then we’ll stand corrected. In the meantime, let’s get back to fighting our wars and common sense.
Last week, Judge Vaughn Walker issued a highly anticipated ruling in Perry v. Schwarzenegger striking down California’s Proposition 8 – which amended California’s state constitution to restrict marriage to “a man and a woman” – on the grounds that Proposition 8 violated the U.S. Constitution’s Fourteenth Amendment. This first edition of the Madia Law newsletter seeks to examine the impact of this decision on potential civil rights actions alleging discrimination on the basis of sexual orientation.
I. What was the reasoning of the Perry decision?
Judge Walker invalidated Proposition 8 on two grounds: a) it violated the
Fourteenth Amendment’s “due process” clause; and b) it violated the Fourteenth Amendment’s “equal protection” clause.
The “due process” clause mandates that when the government passes legislation that burdens the exercise of fundamental rights, the government regulation must survive a very exacting review to ensure that it is narrowly drawn to accomplish a compelling governmental interest. Marriage is a fundamental right, so, in this case, Judge Walker applied “strict scrutiny” to Proposition 8 determine whether it was narrowly written to achieve important governmental objectives.
The “equal protection” clause seeks to ensure that states cannot deprive any person of equal protection under the law. Generally speaking, unless legislation creates a classification based on highly suspect criteria – such as race or religion – courts will presume the law is valid provided that it is simply rationally related to a legitimate governmental interest. Courts have traditionally demonstrated a high degree of deference when applying this “rational basis” test for classifications other than race, religion, ethnicity, and in some cases, gender. The Supreme Court has never held sexual orientation to be a highly suspect class, so Judge Walker analyzed Proposition 8 in the context of whether it was merely rationally related to a legitimate governmental interest.
Judge Walker held that Proposition 8 could survive neither the “strict scrutiny” nor “rational basis” tests of the Fourteenth Amendment. He found particularly important that the proponents of Proposition 8 failed to establish any evidentiary basis for the purported governmental interests they claimed were served by the proposition. He noted that Proposition 8’s proponents did not even call to testify many of the witnesses they originally claimed would provide evidentiary foundation to their case. Further, the judge dismissed the testimony of the proponents’ chief expert, founder of the Institute for American Values think tank, David Blankenhorn, on the grounds that he had no educational background in psychology, sociology, or anthropology, and his purported expertise regarding the effects of same-sex marriage was based on “reading articles and having conversations with people, and trying to be an informed person about it.”
Judge Walker contrasted the lack of evidence presented by Proposition 8’s proponents to the parade of psychologists, economists, historians, social epidemiologists, and political scientists presented by the plaintiffs to establish that no secular purpose supported Proposition 8. Judge Walker concluded that there was no evidence California had any legitimate interest in excluding gays and lesbians from marriage. He further found that “many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples.”
The will of California voters in passing Proposition 8 by referendum had no bearing on Judge Walker’s decision: “That the majority of California voters supported Proposition 8 is irrelevant, as fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”
II. What does the Perry decision mean for regulations in other states discriminating on the basis of sexual orientation?
Many states have passed state constitutional amendments or other regulations
similar to Proposition 8. Several states, including Florida, Mississippi, and Utah have passed legislation regulating or prohibiting the ability of gays and lesbians to adopt children.
The Perry decision does not serve as legal precedent to invalidate those laws because it comes from a different jurisdiction. However, parties will cite and use the reasoning and analysis in Perry when attempting to persuade courts in other states to invalidate such regulations.
Specifically, parties will likely use the unusually detailed analysis by Judge Walker of California’s purported governmental interest in Proposition 8 even under the traditionally forgiving “rational basis” standard of review. For example, parties challenging laws banning gay and lesbian adoption of children may use the Perry example to force state officials defending such legislation to produce a solid evidentiary basis demonstrating the state’s legitimate interest in such bans. “Tradition” alone cannot suffice as a legitimate state interest. If Perry is an indication, defenders of such legislation may have a difficult time providing a substantive evidentiary basis justifying such laws. Parties may then use Perry to encourage courts to engage in a detailed review of the lack of such evidence in order to invalidate the laws, even while applying the traditionally deferential “rational basis” test.
III. Will the Perry decision have any impact on cases involving sexual orientation discrimination by private employers?
Not on private employers – but most certainly on government employers. Perry struck down discriminatory legislation in California based on the Fourteenth Amendment. Because the U.S. Constitution restricts actions by the government – not private actors – Perry will likely not serve as controlling or persuasive authority in employment discrimination suits, unless such suits involve a government employer.
In just such a case, Madia Law has teamed with another firm to represent a former police officer alleging discrimination on the basis of sexual orientation against his former police department employer. Because the police department is a government employer, we have been able to allege several causes of action, including violation of the Fourteenth Amendment’s “equal protection” clause. The Perry decision will certainly serve as useful precedent in our case.
In order to prevent discrimination by private employers based on sexual orientation, the U.S. Congress must pass pending (and overdue) legislation. In the meantime, many states, including Minnesota, have passed statutes prohibiting employment discrimination based on sexual orientation.
Don't Ask, Don't Tell 'Insanity' Must End
Aug. 30, 2010
Editor, The News-Gazette:
Our Virginia senators, Webb and Warner, will have a historic opportunity as early as this month to vote away the insanity we know as the “Don’t Ask, Don’t Tell” (DADT) law and policy. I hope they take it. During one week in August alone, we were witness to three high-profile examples of why DADT reduces our military readiness and ruins productive careers for no reasons rationally related to qualifications or performance on the job.
First, Army Capt. Jonathan Hopkins was involuntarily discharged under DADT. He was ranked No. 4 overall of the 933 graduates of his West Point class in 2001, and later endured three difficult tours in Iraq and Afghanistan, earning three bronze star medals, one for valor.
Second, Cadet Katherine Miller resigned from West Point and is transferring to Yale. She was ranked ninth overall in her class of over 1,100 cadets. She wrote that in “attempting to adhere to [the DADT policy] and retain my integrity, I am retrospectively convinced that I am unable to live up to the Army values as long as the [DADT] policy remains in place.”
Finally, Air Force Lt. Col. Victor Fehrenbach filed a lastditch federal law suit to block his imminent discharge after almost 19 years as a fighter pilot. Suffice it to say of Col. Fehrenbach that, in addition to his having earned nine air medals during 88 combat missions in the former Yugoslavia, Afghanistan and Iraq, he was personally chosen to defend the skies over Washington after 9/11.
After spending multi-millions of dollars to educate and train these outstanding people, why are we now firing them or forcing them into resigning? I know that I am repeating myself, but the insanity of DADT must be ended, and Senators Webb and Warner have the votes to help make this happen now.
Retired U.S. Army colonel
Lawrence Goodall in the News Gazette published Dec 29, 2010 wrote:One More Piece Of Bigotry Erased In The United States
Editor, The News-Gazette:
I was born in 1944 in Richmond. I rode buses where the back exit door was the segregation line: whites in front; blacks to the rear. The Byrd machine and our governor, J. Lindsay Almond Jr., told us that we had to massively resist the federal mandate to integrate. We closed our schools. We forbade interracial marriage. We allowed blacks to serve us at lunch counters but not sit beside us.
But things did change. Landmark Supreme Court decisions overturned anti-miscegenation laws (Loving vs. Virginia), a new moral momentum elected decent and honorable governors like Linwood Holton.
A crowning achievement along this path was the election of the nation’s first black governor, Douglas Wilder.
Last Saturday the United States Congress continued in that tradition of decency and tolerance when it overturned “Don’t Ask, Don’t Tell” in our military. Senators Warner and Webb cast a vote to help us erase one more piece of bigotry and prejudice. It was a vote to ensure that all Americans regardless of sexual preference are treated equally. Our senators stood tall with the likes of Gov. Linwood Holton. It’s unfortunate that U.S. Rep. Bob Goodlatte chose to stand with the likes of J. Lindsay Almond Jr.
Whoopi wrote:If you don't like gay marriage, then don't marry a gay person.
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