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Culhane: The latest legal issues surrounding gay couple rights

September 9th, 2011 Leave a comment Go to comments

Three recent developments on the LGBT relationship front have sparked my interest. Let’s do a quick round-up:

(1) On Tuesday, the California Supreme Court heard oral argument on a part of the Prop 8 appeal that only lawyers can love: whether the “official proponents” of this vile ballot measure have standing to appeal the state’s loss in the trial court.

As you might (but probably don’t) recall, the federal court of appeals for the Ninth Circuit, which is hearing the appeal, asked the California Supreme Court to weigh in with its opinion as to whether state law allows the proponents standing in this kind of case.

Based on the questions asked during the argument, it seemed clear that the court’s going to hold that the proponents do indeed have standing. If the federal court agrees (as it’s likely to do), then we’ll get to the merits of the case. This could actually happen quite quickly, as judicial appeals go. State law requires the California court to issue its ruling within 90 days, and the Ninth Circuit could move quickly after that. So a ruling on both standing and the merits could come as soon as six months from now.

Then there will likely be appeals to the full court (for what’s called an “en banc” hearing), and from there to…the Supreme Court.

Setting aside the legal complexities of the standing issue, I have two observations: First, the proponents are having trouble establishing standing because they can’t show that they’ll be harmed in any way if Prop 8 is declared unconstitutional. This problem mirrors the broader issue with marriage equality: it’s only those of us fenced out of it who are harmed, not those who already have the right.

Second, on balance I’d prefer for the courts to find standing here. A victory on the merits is more satisfying, and also more decisive. And if we lose at the Supreme Court level (which I think is about an even bet), that defeat would not cause the marriages of same-sex couples in states that already recognize them to be voided. We’d just have to continue working at the state level, in both legislatures and the courts (which can read their own state constitutions more broadly than the U.S. version).

Yes, I know we can keep trying to get this done in the U.S. Congress, but I’m not that Pollyannish – at least for the foreseeable future.

(2) Speaking of the U.S. Constitution and that same Ninth Circuit: That court has just found that a change to an Arizona law that had the effect of denying health benefits to state-employed same-sex couples violates the constitutional guarantee of equal protection. The state had formerly extended health benefits to domestic partners, but after the voters amended the state’s constitution to bar same-sex marriages, the term “domestic partner” was eliminated as a class of eligible beneficiaries.  The effect is that one would have to be legally married for one’s spouse to receive health benefits– and of course same-sex couples don’t have that option.

The court’s ruling is only a temporary injunction for now, but it’s still an important win. By issuing the injunction, the court found that the same-sex coupled plaintiffs are likely to succeed on the merits of their suit and that they would suffer “irreparable harm” were the law allowed to take effect.

What does this say about Gov. Janet Brawer’s “sign from God” that she should approve the bill?

So good work can be done with equal protection no matter what the Supreme Court decides on the marriage issue; but it will be harder if the Court’s language and reasoning are overly broad. I don’t expect that to happen, though.

(3) On the practical, problem-solving front, we have the finalization of federal rules which will greatly expand our rights to visit our partners and spouses in health care facilities. If the facility receives any federal funding (which almost all do, thanks to Medicare and Medicaid), they must allow the patient to designate his or her own emergency contact.

This is a great advance for same-sex couples, but not only for us. It recognizes reality over status, and furthers the autonomy of all patients. Once again, the Obama Administration – despite its mixed record of success on our signature goals of ENDA, DOMA, and DADT – has shown a great capacity for practical problem-solving.

John Culhane has written a chapter about marriage equality in Reconsidering Law and Policy Debates: A Public Health Perspective; he is also the editor of the volume.
  1. Jessica K
    September 9th, 2011 at 17:30 | #1

    John, One little side note on the hospital visitation rights.

    The patient doesn’t have to be a Medicare or Medicaid patient to get these rights.

    If the hospital receives any Medicare or Medicaid money for any reason then the new rule covers everyone in the hospital regardless of who is paying the bill.

  2. Ken
    September 9th, 2011 at 17:31 | #2

    I would rather have the California court decide that the defendants do not have standing, and not just because they shouldn’t have standing, and not just because giving them standing creates chaos in California’s referendum process. Denying the defendants standing legalizes marriage in California more quickly. It allows Californians to form more families, making anti-gay activists look heartless and even evil in the public eye. It gets a larger part of the US population comfortable with equality, and it sets a legal precedent (about standing, not marriage) that benefits us and has to be considered higher up. I don’t think granting them standing and then winning on the merit of the case has as many benefits, even though the decision would come out the same way.

    The US Constitution expressly prohibits the states from passing certain types of laws. By that principle, state laws prohibiting interracial marriage were overturned. I can drive over the speed limit until the police stop me. Similarly, a state can pass an unconstitutional law, until that law comes before a federal court.

    The Supreme Court will be dragged, perhaps kicking and screaming, into a ruling in favor of gay marriage. None of the arguments against extending equal rights to all citizens will carry weight by the time the case gets there. Except for Scalia, or course, who would rule that license plates are unconstitutional because the founding fathers didn’t contemplate automobiles.

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