2002 - The Year in GLBT Law

January 27, 2003

In general, 2002 brought a number of mostly positive legal changes in the US, particularly in the area of relationships. In this month's article, I'd like to highlight some of them.

January

The Pennsylvania State Supreme Court recognized the visitation rights of a lesbian who raised a child with her former partner even though she was not the biological parent. The Pennsylvania decision requires family courts in Pennsylvania to use the same rules in deciding visitation and/or custody cases as are used to determine these rights for heterosexual couples, if the individual seeking custody or visitation had, with permission of the biological or adoptive parent, acted as a parent to the child.

In California, the state Supreme Court agreed to review the decision of a San Diego appellate court, which had questioned the long-standing practice of second-parent adoptions. This form of adoption has been used by gay and lesbian couples for nearly 15 years to allow both partners to adopt a child. As a result of the Supreme Court's order to review, that case cannot be used as legal precedent in California until the review is completed.

February

A gay man was prevented from seeing his partner at the Shock Trauma Center in Baltimore, Maryland, despite having valid durable power of attorney for health care and proof of having registered in California as a domestic partner. The man was not only kept away from his partner because he was not family but was not even given updates on his partner's status until the dying man's sister and mother arrived and insisted he be allowed in to see his partner. The partner is suing the Center. I don't know whether this situation might have been helped had the couple had joint hospital visitation directives, as I've recommended, but it certainly would not have hurt.

March

The Kansas Supreme Court refused to recognize the 1998 marriage of J'Noel Gardiner, a male-to-female transsexual, to her husband, Marshall. The marriage had been challenged by Marshall's son, who sought to invalidate the marriage in order to prevent J'Noel from inheriting her portion of her husband's estate under the state's probate laws. Despite the fact that J'Noel had fully undergone sex re-assignment surgery prior to the marriage, changed all her legal identification including her birth certificate to reflect her new identity as a female, and informed her husband prior to their marriage, the Court refused to recognize J'Noel's status as a female, thus invalidating the marriage.

April

Stating that it was preserving public morality, the Texas Court of Criminal Appeals upheld the conviction of two men in Houston under the state's sodomy statute. The decision by the state's highest court for criminal matters let stand the conviction, which had resulted from a police search of one man's apartment while the two were having consensual sex in the privacy of the home. The case has subsequently been appealed to the United States Supreme Court, which will hear oral arguments in March, 2003.

May

A Virginia state judge refused to dismiss the adoption case of a lesbian. The motion to dismiss had been brought by the state's attorney general, who argued that the case should be dismissed because the woman had not formally applied to adopt the child. The woman had not been allowed to proceed with the adoption because the Washington, D.C. child placement agency had been told by the Virginia Department of Social Services that it would deny the woman's application because she was a lesbian. In August, 2002, the state settled the case by agreeing to no longer bar adoptions on the basis of sexual orientation.

Meanwhile, the Ohio Supreme Court overturned the state's soliciting law on the basis that the law was an unconstitutional violation of the Equal Protection Clause of the US and Ohio Constitutions. The law made it a first-degree misdemeanor for a person to make a sexual advance toward another person of the same sex, if the target deemed the advance offensive. Advances could consist of words only, and a conviction under the law could bring a sentence of up to six months and a fine of $1,000.

In California, a San Diego County teacher settled a lawsuit for $140,000 against the Oceanside school district as a result of anti-gay harassment directed at the teacher. The teacher was subjected to months of homophobic remarks and graphiti, and was denied promotion, despite having won several teaching awards. The district settled the case when evidence was presented that showed it had ignored the harassment and even threatened to discipline the teacher as a result of her complaints. In addition to the fine, the district is required to implement procedures including implementing sensitivity training for staff members.

June

In a case that is particularly exciting to my partner and me, seven same-sex couples in New Jersey filed suit against the State of New Jersey, seeking to allow them the right to marry under the New Jersey Constitution. The case could bring about the most sweeping change in relationship rights for US gays and lesbians since Vermont enacted its civil union law. The petitioners, all of whom were in long-term relationships, asks for the same marital rights as those accorded heterosexual couples. Since the case is based solely on the New Jersey Constitution, the New Jersey courts will have final word on the matter. Keep your eyes on this one, guys.

July

The Arkansas Supreme Court overturned the state's sodomy law on the basis that it violated Arkansans' right to privacy in their home. The law, which was overturned on a 5-2 decision, had criminalized same-sex. The decision leaves only three states with same-sex sodomy bans (Texas, Oklahoma and Kansas) and nine others with general sodomy bans (including Massachusetts). Hopefully, all of these will be overturned by the US Supreme Court in 2003.

August

The New York State Legislature passed a law that extended spousal benefits to the survivors of gays and lesbians who died in the 9-11 attack. Although the law only extends such benefits to 9-11 cases, it is at least a start in the right direction, for the first time according legal status to domestic partners in New York.

Also in August, a Reno, Nevada school district settled a case of anti-gay harassment against a student. The student, who was openly gay, was subjected to years of physical and verbal harassment, which the school district failed to respond to despite numerous complaints. The student will receive a settlement of $451,000 and the school district has agreed to implement policies to protect students who are harassed because of their sexual orientation. This is the first recognition in the US of an openly gay student's right to be free from harassment.

September

The Borough of New Hope, Pennsylvania added sexual orientation and gender identity to its anti-discrimination policy. For those of you who are familiar with New Hope, you may wonder what took them so long? And voters in Dade County, Florida, rejected a ballot initiative that would have repealed that county's human rights ordinance protecting gays and lesbians. Many of you may remember that it was not that long ago that Anita Bryant led the effort to repeal the first Dade County gay civil rights ordinance. Didn't her ex-husband come out a few years ago?

October

Boston City Counsel added protection for transgendered people to its anti-discrimination law.

And lest we forget, Harry Hay died at 90. Hay was a gay rights pioneer, helping found the Mattachine Society and the magazine One in the 1950s. Hay went on to be a founder and leader in the Radical Faeries movement. A difficult man to love but a man to whom we all owe a debt.

November

Long derided and boycotted for its anti-gay employment policy of firing employees who failed to demonstrate normal heterosexual values, Cracker Barrel added sexual orientation to its written non-discrimination policy. The company's board voted unanimously to add the protection at its annual meeting after it became clear that a shareholder resolution to do so would have passed by a majority vote. It pays to educate and even boycott businesses that fail to protect our rights. Now, everybody, cut up your Exxon-Mobil cards until they bring back domestic partner benefits! Just so you know, of all the major oil companies, Shell and Chevron both provide health and other benefits to domestic partners. Be sure to give them your business!

Pennsylvania became the 28th US state to include sexual orientation in its hate crimes law, which was passed by the Legislature and signed by the governor. In addition to other categories, the new law extends to harassment based on actual or perceived sexual orientation. Many conservatives claim that hate crime laws criminalize thoughts or intentions; what these people forget is we already do this frequently in criminal law. For example, murder can be first-degree or second-degree, based upon the perpetrator's intent, and is punished accordingly.

Several anti-gay ballot initiatives were defeated this month, including attempts to remove sexual orientation from local anti-discrimination ordinances (Ypsilanti, Michigan, Tacoma, Washington). In addition, voters in Sarasota, Florida approved addition of sexual orientation to that city's anti-discrimination law. However, voters in Nevada approved a measure that defines marriage as between one man and one woman and prohibits recognition of same-sex marriages.

Finally, Chicago added protection for transgendered people to its civil rights ordinance.

December

The US Supreme Court granted certiorari in the Texas sodomy case (see above). The Court will hear oral arguments in March, 2003 with a decision expected sometime before the summer of 2003. In addition to hearing arguments as to whether the Texas sodomy law, which applies to same-sex sodomy only, violates the Equal Protection Clause of the US Constitution, the Court has also indicated its intention to revisit its prior decision in the Georgia sodomy case (Bowers v. Hardwick). This willingness to revisit the earlier case, which ruled that laws banning consensual sodomy do not violate the right to privacy, is considered to be an indication that the Court may set aside its earlier decision, which had been heavily criticized.

Also in December, the Mississippi state judicial committee recommended penalizing state Judge Connie Wilkerson for his anti-gay tirade in a letter he wrote to a local paper. Seems the judge reacted to the verdict in the San Francisco dog mauling case by suggesting that gays and lesbians are worthy of death. The committee asked the state Supreme Court to publicly reprimand him and fine him for violating the Mississippi Code of Judicial Conduct, which prohibits judges from demeaning others based on categories including sexual orientation. The judge is being defended in the matter by our loving friends at the American Family Association.

Finally, the New York State Senate finally passed the Sexual Orientation Non-Discrimination Act (SONDA), which outlaws discrimination based on sexual orientation in the work place, housing and credit. The Act has been repeatedly approved by the State Assembly but, in nearly 30 years, has been prevented by NY Republican leaders from coming to the Senate floor. The impasse broke when the upstate New York leadership changed its mind and allowed a Senate vote. Governor Pataki has subsequently signed the Act into law. New York becomes the 13th US state to enact a non-discrimination law that includes protection for gays and lesbians.

The Look Ahead

2002 was, for the most part, a good year for gay and lesbian civil rights. But there are still many inequities that must be addressed in the US, particularly the challenge to sodomy statutes and questions about extending legal status to same-sex couples. Hopefully, the court challenges in these areas will right some of these wrongs and make 2003 memorable.