8 Times The Supreme Court Ruled On LGBT Rights

The Supreme Court will hear oral arguments in the Masterpiece Cakeshop case on December 5, 2017

On December 5, the Supreme Court will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which puts the state’s public accommodations law against “sincerely held religious beliefs” opposing marriage equality.gay cake

After Colorado bakery owner Jack Phillips refused to sell a wedding cake to David Mullins and Charlie Craig because it was against his religious beliefs, the couple filed complaints with the Colorado Civil Rights Division, which determined that Phillips was at fault. In 2015, a Court of Appeals unanimously affirmed that decision, but Phillips maintains the state’s anti-discrimination law violates his First Amendment rights to freedom of speech and free exercise of religion.

The case could have serious implications for both anti-discrimination statutes and so-called religious freedom laws that enshrine anti-LGBT discrimination. But it’s far from the first time our rights have come before the Supreme Court. Below, we look at the high court’s history with the LGBT community.

  1. One, Inc. v. Olesen (1958)Founded in 1952, ONE, Inc. was the first LGBT organization in the U.S. to have its own offices. Its magazine, One: The Homosexual Agenda, came a year later and is believed to be the first mass-produced gay publication in America, sold through the mail and on newsstands in L.A.

    In October 1954, the FBI and the Postmaster General of Los Angeles declared One obscene and refused to deliver it. The publishers sued and, though they lost the case and subsequent appeal, the took their case to the Supreme Court. Their victory marked the first time the high court sided with the LGBT community.

    The magazine ceased publication in December 1969.

By Dan Avery, NewNowNext.com, November 20, 2017

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Australians Say ‘Yes’ to Same-Sex Marriage, Clearing Path for Legalization

A solid majority of Australians voted in favor of same-sex marriage in a historic survey that, while not binding, paves the way for Parliament to legally recognize the unions of gay and lesbian couples.

Of 12.7 million Australians who took part in the government survey, 61.6 percent voted yes and 38.4 percent voted no, officials announced on Wednesday morning. Participation was high, with 79.5 percent of voting-age Australians sending back their postal ballots.

“The Australian people have spoken, and they have voted overwhelmingly ‘yes’ for marriage equality,” said Prime Minister Malcolm Turnbull, who called the survey in a move described by advocates as a delay tactic devised to appease his party’s far-right faction. “They voted ‘yes’ for fairness, they voted ‘yes’ for commitment, they voted ‘yes’ for love.”Australia gay marriage

The high turnout and unequivocal result amounted to a rebuke for Australia’s most conservative politicians, many of whom saw a majority of their constituents vote to support same-sex marriage despite their arguments against it.

Proponents of gay rights spent the day celebrating. They gathered in cities around the country to watch news broadcasts of the survey results. The largest crowd, at Prince Alfred Park in Sydney, broke into cheers, with hugs, dancing and tears, as soon as the news was announced.

“This is our proudest moment as gay and lesbian Australians,” said Chris Lewis, 60, an artist from Sydney, who waved a large rainbow flag he bought in San Francisco about 30 years ago. “Finally I can be proud of my country.”

But many Australians said it was also late in coming.

Annika Lowry, 42, who brought her 4-year-old daughter to the celebration, said the vote revealed a widening gap between Australia’s political class and voters who have been demanding same-sex marriage legislation for years.

“It was not just about us,” she said. “It’s for our kids, so that they know equality is important.”

Alex Greenwich, a state lawmaker from New South Wales and the co-chairman of Australian Marriage Equality, an advocacy group, said the vote “shows that Australians have truly come together in support of their gay and lesbian mates and have said that everybody should be able to have the freedom to marry.”

Germany Must Allow Third Gender Category, Court Rules

Germany must create a third gender category for people who do not identify as either male or female or were born with ambiguous sexual traits, the country’s constitutional court ruled on Wednesday, finding that binary gender designations violated the right to privacy.

In 2013, Germany became the first European country to allow parents to register newborns as neither female nor male, if the child was born with characteristics of both sexes.

The new decision, by the Federal Constitutional Court, goes further, giving lawmakers until the end of 2018 to either allow the introduction of a third gender category or dispense with gender altogether in public documents.Germany transgender

The ruling arrives as society, medicine and law increasingly recognize the ways in which gender is socially constructed and not necessarily fixed or stable.

According to Lambda Legal, an American organization that works for the rights of lesbians, gay men, bisexuals, and transgender people, at least eight countries — Australia, Bangladesh, Germany, India, Malta, Nepal, New Zealand and Pakistan — recognize more than two genders on passports or national ID cards.

Thailand recognizes a third gender in its Constitution but has not yet made that an option on government documents.

In June, for the first time in Canada, a newborn was issued a health document without a gender: a health card that listed U as the gender, for unspecified or unknown. In August, Canada began issuing passports with a third gender option, designated with an X.

Several American states have offered residents gender-neutral options on drivers licenses, and last month, California passed a law that allows nonbinary and intersex people a nonbinary category on their birth certificates.

While much of the change worldwide has involved transgender people, the discussion has also focused attention on intersex people, those born with traits of both sexes.

“Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery,” a 2013 report from the United Nations special rapporteur on torture found, noting that they were left “with permanent, irreversible infertility and causing severe mental suffering.” Human Rights Watch has condemned such procedures.

Family judge quits after refusing to approve adoptions by gay couples

A judge has resigned from the bench because he doesn’t want to oversee same-sex adoptions.

Judge Nance’s order registered an “conscientious objection to the concept of adoption of a child by a practising homosexual”, seeking to recuse himself from such cases on the grounds of “matters of conscience”.gay adoption

The judge claimed he cannot hear the cases because he believes there is no circumstance in which “the best interest of the child [would] be promoted by the adoption by a practicing homosexual”.

But after a probe was launched into his decision, this week the judge opted to resign from the bench entirely.

The state judicial commission had filed ethics charges against Nance, accusing him of violating the judicial code of conduct.

This bars judges from overtly “showing bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status”.

He was also accused of failing to act in a way that “promotes public confidence in the integrity and impartiality of the judiciary”.

Responding to the charges this week, Nance’s lawyers confirmed that he would be resigning rather than face punishment.

pinknews.com, October 27, 2017

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Historic Missouri Ruling Adds LGBT Protections To Sex Discrimination Law

A landmark Missouri case “simply recognizes the manifold ways sex discrimination manifests itself,” an appeals court ruled.

A Missouri Court of Appeals ruled this week that discrimination based on gender identity or sexual orientation is prohibited under state laws barring sex discrimination.Missouri

“If the employer mistreats a male employee because the employer deems the employee insufficiently masculine, it is immaterial whether the male employee is gay or straight,” wrote Judge Anthony in Tuesday’s decision. “The prohibition against sex discrimination extends to all employees, regardless of gender identity or sexual orientation.”

Tony Rothert of the ACLU of Missouri hailed the ruling as protecting not only LGBT Missourians but straight men and women who don’t conform to gender stereotypes.

The ruling stemmed from a 2014 case in which Harold Lampley, a gay man, claimed he was fired from the Missouri Department of Social Services because he didn’t meet his bosses’ expectation of how a man should behave. (A female coworker also sued, claiming she was retaliated against because she associated with Lampley.)

Lampley can now proceed with his case.

By Dan Avery, NewNowNext.com, October 26, 2017

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New York’s Highest Court Gets Its First Openly Gay Jurist – Paul Feinman

The first openly gay member of New York state’s highest court, Paul Feinman, is being sworn in.

Judge Paul Feinman will formally take his place on the Court of Appeals following a ceremony Wednesday in Albany.Feinman

Feinman has been a judge for more than 20 years. He fills a vacancy created by the death of Judge Sheila Abdus-Salaam, who was found dead in the Hudson River near her Manhattan home in April.

Democratic Gov. Andrew Cuomo nominated Feinman and has called him a “trailblazer” whose career has been dedicated to the causes of justice and fairness.

AP via edgemedianetwork.com, October 18, 2017

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A man tortured in Chechnya for being gay dares to go public with his story

For the first time since gruesome accounts of the systematic detention and torture of gay men began leaking out of Russia’s republic of Chechnya, a young man has gone public with his story.

Maxim Lapunov, 30, told reporters on Monday that he was demanding justice from the Russian government for the 12 days he spent locked in a blood-soaked jail cell, led out daily with a plastic bag over his head to be beaten by police officers demanding he confess to being gay.Chechnya victim

Human rights activists and journalists say that up to 100 people, mainly young gay men, were caught up in what has been called a “gay pogrom” carried out by Chechen police and officials earlier this year. Chechen leader Ramzan Kadyrov has denied the campaign of violence, saying that Chechnya “has no gays.”

Lapunov, who moved to Chechnya in 2015 and made a living as an entertainer, said he was selling balloons in March near a mall in Grozny, Chechnya’s capital, when he was detained by plainclothes police officers and forced into a car. He was driven to a police station.

“The charge was that I am gay,” Lapunov, dressed in a white T-shirt and blue cardigan, told reporters on Monday in a news conference at the Novaya Gazeta newspaper, which has published several explosive reports on the alleged torture of gay men in Chechnya. 

When he refused a confession, he was led into a jail cell soaked with fresh blood, where he could hear “screams and groans” coming from somewhere in the bowels of the police station. Officers placed a plastic bag over his head with just a hole to breathe through, led him to an interrogation room, and forced his face against a wall and beat his “legs, hips, buttocks, back,” he said. “They would stop briefly just to let me breathe. They made me get up when I was falling, and it went on and on.”

“I thought they would kill me no matter what happened,” he said, wiping away tears. 

Lapunov, who is ethnically Russian, is the first person to make a formal complaint to Russia’s powerful Investigative Committee challenging a government narrative that the “gay pogrom” in Chechnya never existed because no victims have come forward. Tanya Lokshina, the local head for Human Rights Watch, said that ethnic Chechen victims have been resistant to go public because of fear of retribution by their families.

by Andrew Roth – Washington Post, October 16, 2017

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11th Circuit Denies Tax Deduction For Gay Man’s Reproductive Expenses

11th Circuit Denies Tax Deduction For Gay Man’s Reproductive Expenses

The Issue

Joseph Morrissey is a law professor at Stetson University in Florida.  I suppose that makes him a Florida man, but I resolved to pass on that trope for this decision. He and his male partner decided to have children with Mr. Morrissey serving as the biological father. All told they spent over $100,000 on the process.  In 2011, the year at issue, nearly $57,000 was spent.  He did not claim the amount as a medical deduction on his original return.  Rather he filed an amended return and then sued in District Court when the IRS turned down his refund claim.LGBT Legal

I’m thinking that Mr. Morrissey, who teaches Constitutional Law, is in this for the principle of the thing rather than the money.  A $9.539 refund is pretty low stakes for this kind of legal work.  He might have made it to the 11th Circuit by claiming the deductions on his original return and then going to Tax Court, which based on the Magdalin decision would likely have ruled against him.  There is very good chance, though, that his deduction would have just sailed through on an original return.  He would have had his nine grand, but not the chance to make history.

 

The Law

The definition of medical care contained in Code Section 213(d)(1)(A) is amounts paid – “for the diagnosis, cure mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body” That definition  comes to us, word for word, from the Revenue Act of 1942 (section designation is different as the Code was reorganized in 1954).  In 1942, you could find a more advanced version of contemporary reproductive technology in Aldous Huxley’s Brave New World, but in the real world not so much, unless you count “in vivo” artificial insemination which is reported as early as 1884 in people and 1780 in animals.  Regardless, we can be pretty certain little thought went into the topic of whether surrogacy should be included, when the definition was crafted in 1942.

Kevin Newsom,  President Trump’s recent appointee to the Eleventh Circuit has managed to disappoint a major LGBT organization with his very first decision. In Morrissey v United States Judge Newsom wrote :

Was the money that a homosexual man paid to father children through in vitro fertilization—and in particular, to identify, retain, compensate, and care for the women who served as an egg donor and a gestational surrogate—spent “for the purpose of affecting” his body’s reproductive “function” within the meaning of I.R.C. § 213? And second: In answering the statutory question “no,” and thus in disallowing the taxpayer’s deduction of his IVF-related expenses, did the IRS violate his right to equal protection of the laws either by infringing a “fundamental right” or by engaging in unconstitutional discrimination?

We hold that the costs of the IVF-related procedures at issue were not paid for the purpose of affecting the taxpayer’s own reproductive function—and therefore are not deductible—and that the IRS did not violate the Constitution in disallowing the deduction.

Mary Bonauto, Civil Rights Project Director of GLAD (GLBTQ Legal Advocates & Defenders) wrote me:

We think the court got it wrong. Medically assisted reproduction has become necessary for many couples to have children. When a couple cannot have a child together, the IRS has recognized that medical treatments for reproduction and family building are deductible medical expenses. In family law, many states look beyond genetics to factors like intent and conduct in assessing legal parentage. And in Obergefell, the Supreme Court linked same-sex couples’ right to marry to the ability to exercise associated rights like having and raising children.

Mississippi anti-LGBT ‘religious freedom’ law takes effect

A Mississippi law enabling sweeping anti-LGBT discrimination in the name of “religious freedom” took effect Tuesday as a result of a federal appeals court decision throwing out a legal challenge to the statute.

The law, House Bill 1523, was signed by Gov. Phil Bryant last year in the aftermath of the U.S. Supreme Court ruling in favor of same-sex marriage nationwide. The purported intent of the law is to protect individuals who have religious beliefs contrary to the ruling, but the measure approaches that in a way that would allow anti-LGBT discrimination.anti-lgbt

The law prohibits the state from taking action against religious organizations that decline employment, housing or services to same-sex couples; families who’ve adopted a foster child and wish to act in opposition to same-sex marriage and individuals who offer wedding services and decline to facilitate a same-sex wedding.

Additionally, the bill allows individuals working in medical services to decline a transgender person’s request for gender reassignment surgery. The bill also allows state government employees who facilitate marriages the option to opt out of issuing licenses to same-sex couples, but the person must issue prior written notice to the state government and a clerk’s office must not delay the issuance of licenses.

Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, spelled out the potential consequences of the law in a statement on the day it went into effect.

“The insidious power of a law like this is that it casts a long shadow over public life, forcing someone to assess whether they will be treated fairly and respectfully in situations from the crisis of an emergency room to an anniversary dinner at a restaurant to a child’s classroom,” Beach-Ferrara said. “Now we face the cruel reality of the law going into effect and the imminent threat it poses to the dignity, health and well-being of LGBT Mississippians.”

Last month, the U.S. Fifth Circuit Court of Appeals refused to reconsider “en banc” before the full court an earlier decision by a three-judge panel to throw out legal challenges to the law — one filed by the Campaign for Southern Equality, the other by the Joshua Generation Metropolitan Community Church and 13 Mississippi ministers,

The three-judge panel determined plaintiffs in the lawsuit lacked standing to challenge the law, reversing the trial court ruling that found HB 1523 violated the Establishment Clause by allowing state-sanctioned discrimination under one particular religious view.

GLAAD CEO Sarah Kate Ellis said in a statement the fight against the law continues despite its harmful effects on LGBT people.

By Chris Johnson, Washington Blade – October 10, 2017

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Is there a Marital Presumption for Male Couples in New York?

Is there marital presumption for male couples in New York?  Recent case law suggests that we are heading in that direction.

Is there marital presumption for male couples in New York?  Up until now, there has been no clear guidance on this.  While certain NY jurisdictions have held that the marital presumption of parentage exists for lesbian couples, male couples who have their children with the assistance of a surrogate mother, or gestational carrier, have not had specific judicial input… until now.marital presumption for male couples in New York

Before I discuss the details of the case, entitled In re Maria Irene D., it is important to understand the judicial reach it has and the implications of that for couples throughout New York State.  This case originates from an appeal made from a New York County Family Court decision granting a second parent adoption.  That appeal was heard in the Appellate Division, First Department, which hears appeals from cases in New York County and the Bronx only.  Therefore, until appealed to the New York Court of Appeals (our highest court), it only creates precedent for the Bronx and New York Counties.  Other NY counties may cite the case as a reference, but are not bound by its findings.

In re Maria Irene D. involves a child born in September 2014 to a gay couple, Marco and Ming.  Marco and Ming entered into a civil union in the UK in 2008 and converted that to a marriage in 2015.  Their daughter was born with the help of a surrogate mother who gave birth in Missouri.  Because both fathers were British citizens, and due to the law in the UK surrounding the legality of surrogacy, the couple obtained a parentage order in Missouri that terminated the rights of both the surrogate mother and egg donor and awarded Marco, the genetic father, “sole and exclusive” custody of the child.  In many cases, a pre or post birth order will list both intended parents as legal parents, but because the couple planned to secure UK citizenship for the child at some point after her birth, the parentage order could only list the genetic father.

Marco and Ming, along with their daughter, moved back to Florida, where they had been living, and stayed there as a family until October of 2015.  At some point after the birth of the child, Marco began a relationship with a man named Carlos and his relationship with Ming failed.  Ming had moved back to the UK in October of 2015 to find employment.  Carlos filed a petition of adoption with the New York County Family Court in January of 2016 and the petition was granted in May of 2016.

marital presumption for male couples in New YorkAdoption petitions ask one very important question, whether the child is subject to any proceeding affecting his or her custody or status.  In this matter, Carlos and Marco failed to disclose that, at the time of the child’s birth, both Marco and Ming had signed the surrogacy agreement together as a married couple.  Also, Ming had started a divorce proceeding seeking joint custody of the child prior to the finalization of the adoption.  Carlos and Marco failed to disclose that to the court as well.

The court held that there were two important reasons for overturning the adoption granted by the New York County family Court to Carlos: that Ming and Marco were considered legally married by the court at the time the time they began their surrogacy journey and at the time of the birth of the child.  Their daughter was, essentially, born in wedlock; therefore, Ming was entitled to notice of the adoption proceedings.  The court also faulted Carlos and Marco for failing to disclose the relevant information that there was a court proceeding filed by Ming in Florida that affected the custody of the child.

So does the marital presumption for male couples in New York protect a separated parent from losing custody of their child?  In this case, yes.  What we do not know is whether the fact that Carlos and Marco’s failure to disclose vital information in their adoption petition was the driving factor in the court’s decision, or whether it was the marriage of Marco and Ming.

With this information, male couples in NY may be struggling with whether to secure their parental relationships through second or step parent adoption.  Because the players in this drama were foreign nationals, different rules applied to how parentage was established immediately following the birth of their child.  Most US couples who have children through surrogacy can obtain parentage orders that create parentage for both fathers depending on the State where their child is born.  This decision is certainly a step in the right direction but married NY couples should also consider step parent adoption as a means to create unassailable parental rights that are portable across the country and around the world.  While the second/step parent adoption process is comprehensive and time consuming, it is worth it when you think about how much may be spent defending your right to your child born through surrogacy.

Anthony M. Brown, head of Family and Estates division of Chianese & Reilly Law, PC and has extensive experience in helping same-sex couples through the adoption process, having gone through the process himself. If you have yet to create a legal relationship with your child or children, call 212-953-6447 or email Anthony at Anthony@timeforfamilies.com.

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