Tuesday, July 13, 2010

Policy Matters - July 13, 2010

Front Page Headlines
“Don’t Ask, Don’t Tell” Survey Released. Last week, a copy of the Department of Defense’s “Don’t Ask, Don’t Tell” questionnaire was obtained by the University of California’s Palm Center and was published by The Washington Post. The questionnaire surveys 400,000 active and reserve troops who have until August 15 to complete the survey. Many LGBT advocacy groups knew that the survey was going to be administered prior to its unauthorized release; however none were allowed to review it. That aside, organizations and analysts uniformly questioned the basic premise of such an endeavor and added that they did not have significant input into the survey’s design and the nature of the questions. Given the misguided construction of the survey, many LGBT advocacy groups are asking the Pentagon to analyze the results with an understanding of the inherent bias in the questions and use it as a tool to implement open service without delay.

LGBT Youth Face Violence Behind Bars. Across the United States, the brutal and dysfunctional juvenile justice system sends LGBT youth to prison in disproportionate numbers, fails to protect them from violence and discrimination while they’re inside and to this day condones attempts to turn them straight. Antigay policies aren’t just a problem in the Deep South or rural regions. According to Jody Marksamer of the National Center for Lesbian Rights, one of co-authors of a recent report on LGBT youth in the juvenile justice system, “These things happen in every state.” Fortunately, the courts have started to take notice of the conditions and some, like Hawaii’s federal court, have ruled that a juvenile detention center’s “relentless campaign of violence, physical and sexual assault, imposed social isolation and near constant use of homophobic [and transphobic] slurs” are unconstitutional. Decisions like Hawaii’s federal court have spurred advocates in California, New York, New Jersey and elsewhere to push for reform, with some success.

Britain Rules in Favor of LGBT Asylum Seekers. Last Wednesday the Supreme Court of Great Britain upheld the right of LGBT asylum seekers not to be deported if they could show that they faced persecution in their home countries. The court ruled unanimously in favor of two men — a Cameroonian who fled his country after being attacked by an angry mob, and an Iranian who was attacked and expelled from school when his sexuality was discovered — who had lost appeals against deportation in a lower court. The lower court judges had ruled that the men could live “reasonably tolerable” lives in their home countries if they concealed their sexuality. The Supreme Court said that “to compel a homosexual person to pretend” that his sexuality does not exist amounted to denying “his fundamental right to be who he is.” The coalition Conservative-Liberal Democrat government embraced the ruling, which reversed the policy of the former Labour government.

Public Policy Watch
Federal Judge Rules Against DOMA – Twice. In an enormous victory for same-sex marriage, a federal judge in Boston last Thursday ruled, in two separate cases, a critical part of the federal Defense of Marriage Act (DOMA) unconstitutional. In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. Both lawsuits are very precise legal attacks against DOMA – targeting just Section 3 – and most legal observers believe both cases will eventually be appealed to the U.S. Supreme Court for resolution. The only other marriage case right now that has that same potential is the Proposition 8 marriage case in a federal district court in San Francisco. Judge Vaughn Walker heard closing arguments in that case in June and has not yet issued his decision. The next step for all three cases is the U.S. Court of Appeals.

DOJ Says DOMA Ruling Could Have Implications for Other States. While Judge Tauro’s recent DOMA ruling applies to Massachusetts, the Department of Justice believes that if a higher court with a broader jurisdiction were to hear an appeal and agree with the judge’s rulings, the decision’s impact would spread to other states (and the District of Columbia) that recognize same-sex marriage. The rulings might encourage other attorneys general who oppose DOMA to sue to try to knock it down, said Boston College professor Kent Greenfield, a constitutional law expert.

Historic Ruling Favors Transgender Employee. A federal judge has ruled in favor of a former Georgia state legislative aide who claimed she was fired after telling her boss she would come to work dressed as woman as she began her transition. U.S. District Judge Richard W. Story ruled Friday that Vandy Beth Glenn’s firing violated her constitutional rights under the Equal Protection Clause. Glenn, a transgender woman, claimed that Legislative Counsel Sewell Brumby fired her from her job as a legislative editor because the gender transition would make her colleagues feel uncomfortable and would be seen as “immoral” by Georgia lawmakers. Brumby told The Associated Press that he had no comment on the ruling.

HI Governor Vetoes Same-Sex Civil Unions. Hawaii’s Governor Linda Lingle vetoed legislation Tuesday that would have permitted same-sex civil unions, ending weeks of speculation about what she would do with the contentious, emotionally charged issue. The Republican Governor acted on the last day she had to sign, veto, or allow the bill to become law without her signature. The Legislature had approved it in late April, which would have granted lesbian and gay couples the same rights and benefits the state provides to married couples. She said voters, not politicians, should decide the fate of civil unions. For weeks, the governor heard emotional views from both supporters and opponents of the bill. She invited leaders from both sides to her standing-room-only news conference. Lingle’s decision is expected to be the last say on the proposal this year because legislative leaders have said they won’t override any of her vetoes. The two-term Republican leaves office in December.

A Question from the Field
Dear Policy Matters,
In June, the U.S. Supreme Court upheld Washington State's law that says ballot-measure petition signatures are public records. Despite the high court’s ruling, the drawn-out battle over whether to release Referendum 71 petition signatures continues. Can you please explain why the Supreme Court’s ruling wasn’t enough to resolve this conflict, and also let me know when this matter finally will be settled?
Thanks so much,

Dear Sara,
Thank you so much for your question. For those readers not familiar, Referendum 71 sought to repeal a 2009 state law granting expanded marriage-like benefits for lesbian and gay couples registered as domestic partners. The measure was sponsored by Protect Marriage Washington. In the months leading up to the November elections, when voters opted to keep the expanded benefits law, a LGBT-rights advocate said he would request — as permitted under the state's Public Records Act — the names of those who signed petitions to get the referendum on the ballot, and then post the information on a searchable website. Protect Marriage Washington filed suit to keep the names private, saying disclosure would scare supporters away from exercising their free-speech rights.

As you mentioned, the Supreme Court ruling in the Doe v. Reed case released earlier this summer in an 8-1 decision (with Justice Clarence Thomas dissenting) stated that disclosing the identities of petition-signers does not violate the First Amendment, but the justices also said their decision “does not foreclose success” should Referendum 71 sponsors decide to pursue an exemption in a lower court — which the sponsors said they will do. This caveat is why the Supreme Court’s ruling still provides an opportunity for the Referendum’s sponsors to conceal the identities of those who signed the petition.

The sponsors plan to take their case to the U.S. District Court where they will have to prove that there is “reasonable probability” that disclosing the names will lead to threats, harassment and reprisals. Meeting this very high standard will prove to be incredibly difficult since the sponsors lack the necessary evidence needed make the case, though the lead attorney for Protect Marriage Washington, James Bopp Jr., believes that the District Court will agree that releasing the names of those supporting the Referendum makes those individuals vulnerable “to death threats, vandalism, and even the loss of their jobs.”

It’s important to note that the question that worked its way up to the Supreme Court was focused only on the broader issue of whether it's constitutional to disclose the identities of signers of all ballot-measure petitions, not just Referendum 71. It left unanswered the narrower question of whether it's constitutional to release the names in the case of Ref. 71 specifically, given that sponsors fear disclosure may lead to harassment. That question is what will come before a U.S. District Court, but most justices expressed doubt that in the case of Referendum 71, the fear of possible harassment should override the state’s disclosure law.

Moving forward, Referendum 71 names are not immediately available, as the Supreme Court decision is not final for 25 days. A Thurston County judge must lift an injunction he issued banning the release of all voter petitions, pending the Supreme Court decision. Attorneys advocating for the release of petition signatures said that they would ask the judge to lift the injunction so that the signatures will be public later this month. With respect to when this matter will finally be resolved, please continue reading Policy Matters for the latest coverage.

Warmest regards,
Policy Matters

Please note that Policy Matters will return on July 27, 2010. If you would like to have a policy-related question featured in our next edition, please e-mail rperry@pflag.org with your question no later than July 23, 2010.

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