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A Trend in GLBT Discrimination Law?

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Three recent court decisions, and an ABA policy shift, may indicate a trend in LGBT rights law towards greater protection for the LGBT community. First, a transwoman (a female-to-male transsexual) won a recent federal employment-discrimination lawsuit against the Georgia State Assembly (here is the order in this case, Glenn v. Brumby). Second, a Massachusetts federal judge ruled July 8th in two related cases; in one order, in Gill v. Office of Personnel Management, that the Federal Defense of Marriage Act 11 U.S.C. § 7, enacted in 1996, is unconstitutional; and in another order, Commonwealth of Massachusetts v. HHS, that the federal government could not deny the benefits accorded to married couples to same-sex couples married under Massachusetts law. And third, the District of Columbia Court of Appeals ruled that a proposed referendum on same-sex marriage was prohibited under the city?s human-rights law (Christian Science Monitor story; Washington Times story).

In the policy realm, the American Bar Association (ABA) is considering taking a public position in favor of same-sex marriage. According to an ABA press release at ABANow.org, the website of the American Bar AssociationMedia Relations & Communication Services, the proposal, to be considered by the ABA House of Delegates at the ABA Annual Meeting in August, ?would urge state-level governments to eliminate all legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry and build on a 2004 ABA policy opposing a federal constitutional amendment to define marriage as a union between a man and a woman and prohibit states from allowing same sex couples to enter civil marriage.?

The National Organization for Marriage opposes the Massachusetts federal judge?s decisions: as Brian Brown, its president stated, ?A single federal judge in Boston has no moral right to decide the definition of marriage for the people of the United States?; and plans to appeal the D.C. Court of Appeals ruling to the U.S. Supreme Court: ?The central issue in this case is whether the people of the District of Columbia will be able to exercise their constitutional right to vote on this important issue, just as voters in 31 states have been able to do.? The American Spectator website carried an March 3rd, 2010 editorial written by William C. Duncan, the director of the Marriage Law Foundation. Duncan noted that ?With the extreme subjectivity and irrelevance of nearly all of the plaintiffs' evidence, it is fair to ask what illumination this show trial has provided. This "civics lesson" is beginning to look more like a cautionary tale about the dangers of legal hubris. Certainly our fundamental social institution deserves better.?

But even according to opponents of same-sex marriage, there seems to be a dearth of factual support for the idea that same-sex marriage is somehow inimical to heterosexual marriage. In a pretrial hearing in the lawsuit over California?s Proposition 8 ban of same-sex marriage, according to MSNBC coverage on October 14, 2009, there was a fascinating exchange between the judge and one of the attorneys defending Proposition 8 last year. Federal trial-court judge Vaughn Walker asked "What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?" Charles Cooper, one of the defense attorneys, responded "My answer is, I don't know. I don't know."

Does the apparent increasing velocity of GLBT rights, and the dearth of factual support for opposition to same-sex marriage, presage a decision in the federal trial over Proposition 8 in California--or even in higher-level courts?

Full post as published by novalawcity on July 19, 2010 (boomark / email).