Lambda Asks Supreme Court To Review Crazy Bayou State Ruling

Lambda Asks Supreme Court To Review Crazy Bayou State Ruling

By Ann Rostow Published: July 14, 2011

Two major legal stories dominate the GLBT news this week, and yet I can’t help leading with the report about the Orange County woman who drugged her husband, tied him to the bed, cut off his penis and ran it through the garbage disposal. Ouch! Were there no divorce lawyers available? The psycho-wife called emergency services and allowed herself to be arrested without incident, telling police that her hubby “deserved it.” She was arraigned on a million dollars bail and will presumably spend a few decades behind bars for her misdeed. Interesting what human beings are capable of doing to each other. I’m sure he wasn’t the best husband in the world, but still. Guys, you’ll be particularly relieved that we are now moving on to legal news. Although the Don’t Ask Don’t Tell case in the U.S. Court of Appeals for the Ninth Circuit is getting more attention, I think the Fifth Circuit birth certificate lawsuit is more significant. Why? Because Lambda Legal has appealed this very very very weird decision to the U.S. Supreme Court, and there are several reasons why the Court might accept review, putting a gay-related case on its docket for the 2011/2012 term. That’s always big news. The case involves two gay dads originally from New York but now living in California. The men adopted a baby boy, born in Louisiana, and asked the state for a revised birth certificate with both their names listed as parents. Louisiana refused, ignoring a perfectly legal adoption and arguably violating the Constitution’s guarantees of Equal Protection and Full Faith and Credit. Obviously, Louisiana should not be allowed to treat gay parents differently than straight parents. And as for Full Faith and Credit, all states are required to respect the judicial proceedings of sister states, as well as their public acts and records. An adoption, for the record, is a judicial proceeding subject to the Full Faith and Credit Clause, and no sane lawyer disagrees with this established fact save the majority of the Fifth Circuit, who may or may not fall into the category of “sane.” After Louisiana refused to produce the birth certificate, Lambda sued on behalf of the fathers, winning in lower court and later winning before a three-judge panel at the Fifth Circuit. Louisiana appealed to the entire federal appellate court, and to the astonishment of one and all, the full court ruled in favor of the state a couple of months ago. The majority came up with a far-fetched explanation of why the Full Faith and Credit Clause did not apply to the gay fathers (I will spare you the convoluted details.) They also expounded on why Louisiana’s ban on same-sex adoptions was constitutional, even though Louisiana state policy was not at issue in the case. After all, the fathers adopted their son in New York, not Louisiana. They were not seeking another adoption; they were seeking a routinely issued piece of paper recognizing the legal adoption they had already secured. The Fifth Circuit’s bizarre opinion is in direct opposition to a Full Faith and Credit ruling out of the Tenth Circuit, so it’s quite possible that the High Court will agree to hear the case in order to clarify federal law on this issue. As for the Equal Protection element, the High Court could easily sidestep the pure question of gay rights by simply ruling on Full Faith and Credit. Or, the justices could duck the entire matter. We’ll find out when the Court returns from its summer break in October and starts reviewing petitions. Ninth Circuit to Obama: Fish or Cut Bait Meanwhile, last Wednesday, a three-judge panel in the U.S. Court of Appeals for the Ninth Circuit issued an injunction against the enforcement of Don’t Ask Don’t Tell (technically, they released their stay of a previously issued injunction, but you get the picture). The two-page order noted that the Obama administration has changed its views on the constitutional status of sexual orientation, and no longer can justify its position. Further, as we all know, the ban on openly gay military service is on its way out, and should be history in a couple of months anyway. Then last Monday, the panel asked the administration to tell the court whether or not the Justice Department intends to continue the legal fight on behalf of the moribund law. If not, asked the court, will Congress be invited to intervene just as Congress was given the green light to intervene on behalf of the Defense of Marriage Act? Given that a hearing date in the case is scheduled for August 29, the administration was given just 10 days to sort out its position on the Don’t Ask case. A few months back, Obama and company had asked the Ninth Circuit to set the whole lawsuit aside and wait until the Don’t Ask repeal process had run its course. The court refused, which is why we’re seeing all these legal maneuvers going forward on this long running challenge to the military gay ban. Most of us might see this whole exchange as much ado about nothing. After all, Obama insists that the final certification required to end Don’t Ask is expected in a matter of weeks, not months. We should hope so, considering that the repeal process has already been underway for six or seven months. How long does it take to tell commanders not to discharge people for being gay, anyway? Assuming that the certification takes place this summer, there would be a 60-day waiting period (again for reasons unclear) and the law would then officially be dead. Why, under the circumstances, should the administration or anyone else be interested in a nearly moot court battle? One reason is that the case against Don’t Ask Don’t Tell raises a number of basic constitutional issues that apply to gay rights matters in general. If you believe that the panel is inclined to rule in your favor, you want the litigation to go forward, and indeed, some optimistic gay legal advocates would not be sorry to see the case continue. Then again, it’s hard to argue with a flat out victory, even when that victory comes with whimper rather than a bang. Antigay Dominos Continue To Fall Do you remember last week’s confusion over the administration’s views on joint bankruptcy for married gay couples? Well, you’ll be delighted to hear that it’s all been clarified. On Friday, a Justice Department spokesperson confirmed that the administration will no longer object to bankruptcy filings by married gay couples, even though such filings technically violate the Defense of Marriage Act. As such, the U.S. Trustee in an LA bankruptcy case withdrew a motion to appeal a gay-friendly ruling by bankruptcy judge Thomas Donovan. (in an opinion joined by 19 of his colleagues, Judge Donovan ruled that the Defense of Marriage Act was unconstitutional). Like a train gathering steam, President Obama’s February decision to treat sexual orientation discrimination as presumptively unconstitutional is having an impact on a multitude of cases and issues. The media has been focused on the implications for the Defense of Marriage Act, which Obama’s Justice Department will no longer defend in court. But the courageous shift in legal policy extends beyond marriage. Indeed, the Ninth Circuit’s Don’t Ask Don’t Tell injunction was directly based on the February announcement. The Ninth Circuit has also asked the Justice Department to issue a revised brief on the constitutionality of excusing a lesbian from a jury based on sexual orientation. Does the Department still think that’s okay given their pronouncements on gay bias? I’d guess no. We’ve seen the Justice Department drop, shelve or delay the deportations of foreign gay spouses. We’ve seen the new stance on joint bankruptcy for gay couples. In fact, when Obama announced that he’d still “enforce” the Defense of Marriage Act (and other antigay laws), that announcement really didn’t make much sense. How do you “enforce” laws that you will not defend in court? Hey, I’m not complaining here. I’m just sayin’. The Bachmann Has No Clothes What else is new? We’ve learned in the past week that Michelle Bachmann does not seem to be a friend to our vibrant and wonderful community. Sorry everyone, I do not consider that to be breaking news of the week. Do we not remember her sustained, obsessive attempts to pass an antigay marriage amendment in Minnesota a few years ago? I mean really. Why is this woman getting a pass from the mainstream media and being treated as just another GOP candidate for president? She believes in intelligent design, thinks global warming is a hoax, thinks gay people are sexually dysfunctional and has accused Barrack Obama of being “anti-American.” She has a limited grasp on American history and on the general mechanics of finance. She stated that she preferred that the United States not participate in the global economy, as if that were a policy option. She has advocated for some kind of bill or resolution to make sure that the United States continues to use the dollar, based on her misunderstanding of the term “global reserve currency,” which she apparently believed referred to the idea of having a single world currency. She’s a nut and she is totally absolutely completely unprepared to be President of the United States. The fact that she leads the Iowa polls should by all means be a topic of media speculation. But the speculation should be on the order of WTF? As for her performance at the GOP debate a few weeks ago, the media as a whole seemed to be blown away by her poise and confidence. Say what? She looks good and she can spout talking points. But hello! We’re talking about the future leader of the free world. Is there some unwritten rule of media etiquette that forbids discussion of a presidential candidate’s nonexistent qualifications for the job? Or is that kind of criticism reserved for official pundits from the left or right, who are then promptly dismissed by viewers on the other side? Lamestream Media Indeed Well, now I’ve made myself mad. Yet I have never in my lifetime experienced the disconnect between politics and the real world that we now confront. Who are these people who think Michelle Bachmann is the best bet to represent the Republicans in the next election? Why does a majority in this country believe that it’s no big deal to default on government obligations like military pay and social security checks? Why do they blithely ignore the calamitous effect that not raising the debt ceiling would have on the world’s financial markets? Why, indeed, is this country now obsessed with deficit spending as if the United States is an average family with bills to pay and has to “cut back” in order to afford everything? Why doesn’t the media ever question this assumption? No one likes huge deficits, but the solution is economic growth and jobs. As for spending, has anyone looked at the interest rate on 30-year treasuries lately? What are they? Three percent? I haven’t checked, but the fact is we have the largest economy in the world, and the borrowing power to match it. Our overall debt is about the same as our annual GDP, which (to use the same dumb analogy) is like a family that owes a year’s income on their low interest mortgage and outstanding loans. It’s not great as a historical percentage. But for God’s sake, we’re not Greece. We’re not “going bankrupt” or running out of money. Why don’t we hear from anyone with numbers, facts and charts? Never mind that almost the entire burden stemmed from the years of Reagan and Bush 1 and 2, plus the impact of the 2008 recession. Deficits were shrugged off like so much dandruff during the W administration. Now, the Republicans are ready to slash the entire New Deal while turning their backs on job growth and infrastructure spending. Why? There can only be one reason. The craven GOP priorities that put winning the next election ahead of the country’s welfare.