Representatives from the law firm Jenner & Block hosted a forum on the state of LGBT equality Oct. 1 at the firm’s downtown Chicago offices, addressing the legal minutiae of cases involving the federal Defense of Marriage Act (DOMA), California’s Proposition 8, the military’s “Don’t Ask, Don’t Tell” (DADT) policy and more.
“Despite setbacks and disappointments,” the Jenner representatives noted, “remarkable progress toward LGBT equality continues in the courts. The key change in 2010,” they noted, “has been to move to federal courts and federal constitutional challenges [in several cases].” But questions remain about how the Supreme Court will view these issues as the various cases involving LGBT equality move up the judicial ladder.
In the legal challenge to Prop 8—the voter-approved ban on same-sex marriage—the issue of whether or not the defendants, who are private citizens and not the state’s attorney general, have standing remains an open question. The case is now before the Ninth Circuit Court of Appeals.
In July, a federal judge in Boston ruled that the federal government’s refusal, embodied in DOMA, to recognize same-sex married couples is a violation of the Constitution’s requirement of equal protection. The judge rejected several justifications for the law, stating that morality, the need for procreation and the issue of state sovereignty were not valid reasons to uphold the ban.
The attorneys also discussed the ban on openly gay servicemembers. Until recently, they noted, all challenges to DADT failed in court. Deference to the military drove the reasoning in every opinion. But in September of this year, a federal judge ruled that Air Force Maj. Margaret Witt be reinstated to her military job after being discharged under DADT. The ball is now in the Obama administration’s court, which is—while calling for a repeal of the law—obligated to defend federal statutes.
Speakers also highlighted a Supreme Court case involving a conservative Christian student organization at the Hastings College of the Law in San Francisco. The group banned “unrepentant” gays and lesbians from joining the organization. College officials refused to provide funding and official recognition to the group because of its stance. The group sued and the case made its way to the Supreme Court where the justices found that the school’s “all-comers” policy was constitutional.
In Washington state, anti-gay activists sought to repeal the state’s domestic partnership law and wanted the names of their supporters who signed petitions to be exempt from being viewed in public records. But the Supreme Court disagreed and ruled that the state’s disclosure requirements are “modest.” The activists claimed that there was a need to keep the signers’ names from the public because they feared their supporters would be targeted by LGBT activists. The court also jettisoned that argument, and stated that “harsh criticism” from one’s opponents is the price one must pay for democracy.