NPR reports that a federal judge has overturned South Carolina's ban on same-sex marriage today. Richard Gergel, a federal judge in South Carolina, overturned an amendment to the South Carolina Constitution.
U.S. District Judge Robert Chambers struck down West Virginia's ban on same-sex marriage as unconstitutional, the West Virginia MetroNews reports: "'The right to marry is a fundamental right, giving every individual the opportunity to exercise choice in this important relationship. As such, the government must not interfere in that choice unless it demonstrates compelling state interests and carefully tailors its restrictions to protect those interests,"' the judge said.
In contrast, the Sixth Circuit last week upheld same-sex marriage bans under the lowest level of constitutional scrutiny: rational basis. Other courts have often been applying greater constitutional scrutiny in striking down bans on same-sex marraige.
Earlier today I posted about how Missouri's ban on same-sex marriage was struck down by a state-court judge, and I was feeling a complacent sense of happiness that social change was proceeding apace. Well, no more. The Sixth Circuit ruled today in favor of same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. The decision reverses the district court judges who struck down the various states' bans as unconstitutional. As a result, there is now a circuit split on same-sex marriage. The U.S. Supreme Court refused to take up same-sex marriage cases earlier this year, but that was when there wasn't a split among the circuit courts of appeals on the issue. The justices are much more likely to take up cases when there is a split about the circuits, so we may get a same-sex marriage case on the court's docket before June after all. Here's the opinion from the Sixth Circuit:
http://www.ca6.uscourts.gov/opinions.pdf/14a0275p-06.pdf
St. Louis Circuit Judge Rex Burlison ruled yesterday that denying same-sex couples the right to marry in Missouri denies them equal protection and due process under the law and is unconstitutional, the Post-Dispatch's Doug Moore reports. Moore struck down the ban in the state constitution because of the equal protection and due process clauses of the 14th Amendment of the federal Constitution.
The Missouri Attorney General will appeal the ruling to the Missouri Supreme Court.
New Mexico Supreme Court Justice Edward Chavez kept his seat on the bench despite his ruling in 2013 clearing the way from same-sex marriage, The New Mexican's Phaedra Haywood reports: "Despite being singled out by the New Mexico Center for Family Policy, NM Watchman Jose Vasquez, For God’s Glory Alone Ministries and political blogger Politix Fireball — all of whom advised voters not to retain Chavez because he had co-authored the landmark decision — Chavez easily received the necessary 57 percent of the vote to keep him on the bench — as did all the statewide judicial officeholders." In contrast, when the Iowa Supreme Court legalized same-sex marriage five years ago, voters ousted three of the justices when they faced a retention election.
Here's a piece I wrote for the Connecticut Law Tribune regarding a gay schoolteacher's discrimination lawsuit:
A former Hartford elementary school teacher alleges she was forced to quit her job after school administrators mistreated her when they found out she was married to a woman. The case could test the scope of protection provided by the federal Civil Rights Act of 1964 in claims of discrimination based on sexual orientation.
Lisa Boutillier, a Colchester resident, alleges that her bosses at the Noah Webster MicroSociety Magnet Elementary School in Hartford violated Connecticut state law barring discrimination based on sexual orientation, medical condition and physical disability. She also alleges the school district violated the Civil Rights Act and the federal American with Disabilities Act.
Boutillier's spouse is unnamed in court papers and also works in the Hartford public school system.
The Hartford Public Schools district argues that the Civil Rights Act does not protect against discrimination based on sexual orientation and only applies to bias based on race, color, religion or national origin. The U.S. Court of Appeals for the Second Circuit "has stated definitively that sexual orientation is not a protected category" under the Civil Rights Act, the school district further argued.
But the plaintiff's counsel, Margaret Doherty of Doherty Law Group in Wethersfield, noted that interpretation of the law is starting to change.
"The Equal Employment and Opportunities Commission has found that claims brought by lesbian, gay and bisexual individuals alleging 'sex stereotyping' state a sex discrimination claim under Title VII" of the Civil Rights Act, Doherty argued in court papers.
Neither Doherty nor the magnet school's counsel, Hartford Assistant Corporation Counsel Melinda Kaufmann, returned calls seeking comment.
A federal judge recently gave the first round of the skirmish to the plaintiff, rejecting a defense motion to dismiss the lawsuit.
"Plaintiff has stated that the discriminatory conduct commenced after certain individuals became aware of her sexual orientation and that she was subjected to sexual stereotyping during her employment on the basis of her sexual orientation," Senior U.S. District Judge Warren Eginton stated. "Construed most broadly, she has set forth a plausible claim she was discriminated against based on her nonconforming gender behavior."
The judge also upheld the Boutillier's state law claim for constructive discharge based on her argument that she had to resign because her treatment by her employer was intolerable.
Contentious Meeting
Boutillier worked for Hartford Public Schools for seven years. When she started at the magnet school in 2006, Delores Cole was the principal.
Boutillier alleges that after Cole learned that Boutillier is gay, Cole began berating her and criticizing her in front of students, parents and other staff members. When Vernice Duke became assistant principal in September 2008, Boutillier alleges Duke also began berating her in front of others.
Boutillier said that in August 2011 she was treated for a pulmonary embolism (a blood clot in the lung) and underwent a hysterectomy. She went on medical leave until January 2012. Upon returning to school, she was reassigned as a floating "workshop/reading" teacher for the first and second grades. She also alleges that the classroom to which she was assigned was not set up for her and her need for assistance in moving heavy items was not accommodated.
In May 2012, Boutillier claims she had a contentious meeting with Duke and Cole during which they denounced her for the disruption caused by her medical absence and for not keeping them informed of when she might return.
Boutillier claims her physicians provided proper notice to school officials. After the meeting, Boutillier claims she became ill and distraught and had to go to the hospital.
"Plaintiff [went] on medical leave from her teaching duties and undergoing medical treatment for physical and mental ailments directly related to plaintiffs' intolerable working conditions," Boutillier's complaint said.
During her second leave of absence, Boutillier states that she was told that her medical insurance would be canceled. She claims there are district policies allowing employees to keep health benefits while on medical leave. The school district, however, disputes there are any such polices.
Boutillier says her work performance was exemplary.
"Throughout her seven years of employment with Hartford Public School District, Ms. Boutillier has performed her job responsibilities in a highly professional, effective and competent manner," the lawsuit said. "At no time during her employment with the defendant was Ms. Boutillier's job performance ever an issue."
Boutillier filed internal complaints against both administrators. School officials, in their court papers, said they found insufficient evidence that Cole or Duke had discriminated or retaliated against Boutillier.
Boutillier planned to return to teach in August 2013, but she says she quit because her new assignment would have brought her under Duke's direct supervision. She then filed complaints with the Connecticut Commission on Human Rights and the federal Equal Employment Opportunity Commission. Both agencies have released jurisdiction over Boutillier's complaints to the federal courts.
Boutillier is seeking reinstatement to her job, damages to compensate for lost wages and benefits, and damages for pain and suffering and emotional distress. She also claims she is entitled to punitive damages.
Omar G. Encarnación, writing in Foreign Affairs, argues that the recent advance in ensuring same-sex couples can marry in the United States is much more modest progress on LGBT rights than one would think: "the United States lacks not only federal legislation protecting same-sex marriage but also federal laws banning discrimination on the basis of sexual orientation. The Employment Non-Discrimination Act, better known as ENDA -- a law intended to prevent antigay discrimination in the workplace -- has languished in Congress since it was first introduced in 1974." He notes that conservative parties in countries like Argentina, Chile, France, Portugal, Spain, and Uruguay, have supported same-sex civil unions as an alternative to marriage. Pope Francis supported such a measure when he was archbishop in Buenos Aires, making "the Republican position on gay rights to the right of the pope." The U.S. Constitution also does not lend itself to a "bold court rulings in favor of gay rights," Encarnación argues. "By and large, the U.S. Constitution remains faithful to its eighteenth-century foundations, which includes a very narrow view of social rights."
Even though Congress repealed the "don't ask, don't tell" policy that banned gay members of the military of serving openly, a ban remains on transgendered people serving in the military, the Washington Post reports: "The ban remains firmly in place, with about two dozen service members known to have been discharged over the past two years, according to advocates." About 15,500 transgender people are serving in the military, the Willliams Institute estimates.
U.S. District Judge Scott Skavdahl has struck down Wyoming's ban on same-sex marriage, following the cue of the U.S. Circuit Court of Appeals for the 10th Circuit, NBC News reports. The 10th Circuit, which presides over appeals in federal cases in Wyoming, already ruled that same-sex marriage laws in other states are unconstitutional. Thirty-two states now allow same-sex marriage.
This past week saw the United States make an even bigger step in advancing LGBT rights: the U.S. Supreme Court rejected several challenges to judicial rulings throwing out state bans on same-sex marriage. But both The Economist and Foreign Policy note that there is a large divide in rights for gay people around the world and advances in the United States, Europe and Latin America have lead to a backlash in other parts of the world.
Seventy-eight countries make gay sex illegal, but 113 have legalized it, The Economist notes in a leader. The U.N. Human Rights Council recently passed a resolution on sexual orientation and gender identity. Suzanne Nossel, writing in Foreign Policy, reports that 38 out of 55 African nations have laws punishing sodomy. "While gay rights are on the march in many parts of the world, the very progress that activists have celebrated in the halls of the United Nations, on the steps of the U.S. Supreme Court, and in confetti-dusted city halls around the United States may actually be worsening the danger for gay, lesbian, bisexual, and transgender (LGBT) people in far-flung parts of the world," Nossel reports. "... In much of Africa, the Mideast, and Central Asia -- including Russia -- a nasty backlash has ensued that, at least for now, may be making life worse for some of the world's most vulnerable gay populations."
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