Affirmative Action for LGBTQ?

On the Docket will be hosting a forum at Georgetown University's undergraduate campus addressing the issue of whether or not the LGBTQ community should have preference in college and higher education admissions. Both sides of the issue will be represented at the forum.

Participants in the forum will hear from the LGBTQ Resources Director, Bill McCoy, a Senior Director of Admissions, Jaime Briseno, and Director of the Institute for Diversity, Equality, and Affirmative Action, Marjorie Powell.

The purpose of the forum is to understand the campus climate at Georgetown and perceptions of the LGBTQ community after two hate crimes occurred on campus against this segment of the student population.

Strict Scrutiny for LGBTQ?

Due to a new study that is currently being conducted by DePaul University in Chicago, LGBTQ may get their day in court as a class of people protected under strict scrutiny. According the NY Times article, the study may show that homosexuality is an immutable characteristic. The article reads:

"The Cabreras hope the findings will help silence critics who say homosexuality is an immoral choice.

If fresh evidence is found suggesting genes are involved, perhaps homosexuality will be viewed as no different than other genetic traits like height and hair color, said Julio, a student at DePaul University in Chicago.

Adds his brother, ''I think it would help a lot of folks understand us better.''

The federally funded study, led by Chicago-area researchers, will rely on blood or saliva samples to help scientists search for genetic clues to the origins of homosexuality. Parents and straight brothers also are being recruited.

While initial results aren't expected until next year -- and won't provide a final answer -- skeptics are already attacking the methods and disputing the presumed results.

Previous studies have shown that sexual orientation tends to cluster in families, though that doesn't prove genetics is involved. Extended families may share similar child-rearing practices, religion and other beliefs that could also influence sexual orientation.

Research involving identical twins, often used to study genetics since they share the same DNA, has had mixed results.

One widely cited study in the 1990s found that if one member of a pair of identical twins was gay, the other had a 52 percent chance of being gay. In contrast, the result for pairs of non-twin brothers, was 9 percent. A 2000 study of Australian identical twins found a much lower chance.

Dr. Alan Sanders of Evanston Northwestern Healthcare Research Institute, the lead researcher of the new study, said he suspects there isn't one so-called ''gay gene.''

It is more likely there are several genes that interact with nongenetic factors, including psychological and social influences, to determine sexual orientation, said Sanders, a psychiatrist.

Still, he said, ''If there's one gene that makes a sizable contribution, we have a pretty good chance'' of finding it.

Many gays fear that if gay genes are identified, it could result in discrimination, prenatal testing and even abortions to eliminate homosexuals, said Joel Ginsberg of the Gay and Lesbian Medical Association.

However, he added, ''If we confirm that sexual orientation is an immutable characteristic, we are much more likely to get the courts to rule against discrimination.'''

Many of the predominant reasons given for not striking down laws regarding prohibition of same-sex marriage for example rely upon the fact that the LGBTQ segment of our population are not protected under strict scrutiny which requires that the law be "narrowly tailored" and have a "compelling interest." Right now, at best, LGBTQ are protected under a degree of scrutiny called "rational basis." All this analysis requires for a law to pass constitutional muster is that it be reasonably related to an important governmental objective. In the case of same-sex marriage, this "important governmental objective" has been said to be a concern for the proper environment in which to rear children (with a mother and father).

Circuit Court Ruling Affirms FAIR Decision

A valiant effort by Yale Law School to challenge the Solomon Amendment once again fails in the federal courts. The 2nd Circuit of the Court of Appeals affirmed the jurisprudence laid out in the Rumsfeld v. FAIR decision handed down by the USSC in 2006. Circuit Judge Pooler wrote the opinion for the case which can be found here.

The court rejected the law school's argument saying that its academic freedom was violated by a government policy which would rescind federal funding of the law school if it did not give military recruiters the same access as other job recruiters.

Read more about the case here.

Obtaining Rights: Not an All or Nothing Game

At the foot of the lamps located in the courtyards of the US Supreme Court are little metal replicas of turtles. Why? These turtles are supposed to represent the "slow but steady pace of justice." The rationale for these turtles is quite reminiscent of the saying that the arc of history is long, but it always bends toward justice. Indeed, it seems that it always does. While history may take some backwards steps every now and then, our countries history has seemed to move in a direction which gives those disadvantaged more rights.

"We the people," when the US Constitution was penned in 1789 constituted a much more different demographic than "We the people" today. Women and African Americans were not part of that demographic. Perhaps only white property owning men were the only ones that constituted the "people" back then.

Equal justice under law is something that is an ideal. Never is it ever a reality. It's an ideal that we as a country strive for and that takes time to accomplish and attain. Perhaps this is why those groups fighting for certain rights nowadays realize that the choice isn't really all or nothing. Baby steps are required. Incrementalism. And sometimes when change in favor of more rights takes place, this change can actually be counterproductive.

Recently The Washington Post ran an article commenting on this very phenomenon about the gay rights movement in Russia. There is a divide between those that believe that the gay rights movement is actually engendering more homophobia and creating an argument against giving gay men and lesbians more rights. While it seems that the backlash against the gay rights movement in Russia would have happened anyway, the degree to which the backlash is occurring may be different had the rights movement taken a more back seat approach and therefore encountered less opposition.

And while the opposition that the gay rights movement is facing in Russia may not necessarily apply to the gay rights movement here in the US, it is certainly interesting to consider that not too long ago, opposition to the same-sex marriage ruling in MA sparked a similar "backlash" against the gay rights movement.

National Security & "Don't Ask, Don't Tell"

One of the principle reasons why the U.S. government argues that the "Don't ask, Don't tell" policy of the military is valid is that it essentially helps national security. The Department of Defense Directive 1332 from January 1981 states:

"Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members; to insure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work in close conditions affording minimal privacy; to recruit and retain members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security." (emphasis added)

Since people in the armed services will not be able to function and live and work with those of different sexual orientations, the government bans homosexuals from serving in the armed forces. The government prioritizes the need to raise and support armies for national security over the desire of gay people to serve in the armed forces. The government views the situation in a dichotomous fashion: either have all straight people (or perceived to be straight people) serve in the army or all gay people. Since gay people a minority of the population and not all gay people want to serve in the armed forces, the government reasonably concludes that it must accommodate those straight people and offer them the most comfortable working conditions to have the largest and strongest army possible.

An editorial today in the NY Times, however, refutes this notion that the "Don't ask, Don't tell" policy promotes a strong army and fosters national security. In perhaps the clearest and most cogent response to the "Don't ask, don't tell" policy, Mr. Stephen Benjamin writes in a letter to the editor that firing gay military men and women who could be helping the U.S. uncover vital intelligence is indeed hurtful to national security. There is no compelling governmental interest in trying to discriminate against gay people. Mr. Benjamin says:

“Don’t ask, don’t tell” does nothing but deprive the military of talent it needs and invade the privacy of gay service members just trying to do their jobs and live their lives. Political and military leaders who support the current law may believe that homosexual soldiers threaten unit cohesion and military readiness, but the real damage is caused by denying enlistment to patriotic Americans and wrenching qualified individuals out of effective military units. This does not serve the military or the nation well.

Consider: more than 58 Arabic linguists have been kicked out since “don’t ask, don’t tell” was instituted. How much valuable intelligence could those men and women be providing today to troops in harm’s way?

In addition to those translators, 11,000 other service members have been ousted since the “don’t ask, don’t tell” policy was passed by Congress in 1993. Many held critical jobs in intelligence, medicine and counterterrorism. An untold number of closeted gay military members don’t re-enlist because of the pressure the law puts on them. This is the real cost of the ban — and, with our military so overcommitted and undermanned, it’s too high to pay.

In response to difficult recruiting prospects, the Army has already taken a number of steps, lengthening soldiers’ deployments to 15 months from 12, enlisting felons and extending the age limit to 42. Why then won’t Congress pass a bill like the Military Readiness Enhancement Act, which would repeal “don’t ask, don’t tell”? The bipartisan bill, by some analysts’ estimates, could add more than 41,000 soldiers — all gay, of course.

The USSC has refused to rule on the policy, perhaps avoiding being at the center of a storm of controversy and political unrest. As of today, more than 80% of Americans believe that gay people should be allowed to serve openly in the military.

Only in California...

It must be a slow newsday in the world today. The NY Times just recently reported that gay California inmates will be allowed to have so-called "conjugal visits" just as their heterosexual counterparts.

Gay rights groups such as the National Center for Lesbian Rights in SFO called the decision a "great leap forward" in the movement for equality. These visits allow more than just partners of gay inmates to visit. Family members and children have often utilized this time to visit with their mothers and fathers who may be imprisoned.

The decision by the California comes after threats to sue over the policy which banned same-sex partners from visiting inmates because the government did not view them as family. Equality California says that there was just no reasonable justification for having the policy in place.

While gay rights advocates are happy about the change in policy there are indeed more important issues that the movement could focus on at this time. The perception about "conjugal visits" is one of moral depravity and impropriety. While some family members do visit inmates during these visits, it is highly associated and suggestive of sexual activity with an inmate's partner. Is this what the movement is concerned with? If the gay rights movement is to appear upstanding enough to earn the rights of marriage equality it must do it through means that also appear respectable and avoid getting caught in the wayside.

Gay Marriage & Court Deference to the Legislature

A March 2007 article from Stateline has assessed gay marriage cases in California, Connecticut, and Maryland as "ripe for decision." The legal background of these states regarding same-sex legislation is rather mixed, so it will be interesting to see what the courts in each state decide. Connecticut has a law allowing for civil unions. The California state legislature approved a bill legalizing same-sex marriage, but Governor Schwarzenegger vetoed the bill. Maryland has not passed any legislation allowing legal recognition of same-sex relationships.

Today, New Hampshire passed a bill allowing same-sex couples to enter into civil unions. It is the fourth state to join Vermont, Connecticut, and New Jersey in offering benefits equal to that of marriage (but without calling the union marriage). Over the last two years it appears that the country has grown increasingly aware and accepting of same-sex relationships. The backlash created by the Supreme Judicial Court of Massachusetts appears to have subsided. Amendments banning same-sex marriage have begun to pass with lower margins of victory. In fact, Arizona rejected one such amendment in the 2006 midterm elections.

In granting same-sex couples a judicial victory the courts from California, Connecticut, and Maryland should remember the backlash caused right after both the Hawaii Supreme Court decision in 1993 and the MA SJC decision in 2003. The Hawaii decision prompted Congress to pass the 1996 Defense of Marriage Act. The MA SJC decision pushed President Bush to call for the Federal Marriage Amendment and incited 11 states to pass constitutional amendments banning same-sex marriage.

What should also be noted by these courts is that court decisions in favor of same-sex marriage did not always garner a negative reaction. When other state courts have deferred to the legislature to create a legal remedy in favor of same-sex couples, this type of deference has led to long term gains for same-sex couples without the backlash. The cases in Vermont and in New Jersey are illustrative. There were no federal pieces of legislation passed against same-sex marriage or president's going on a crusade against same-sex unions.

Only time will tell what strategies these courts choose, but it will be interesting to see whether the turbulent history that same-sex marriage has had with courts is taken into consideration by judges authoring the upcoming decisions.