Sexual orientation law in the 1990s.

Lawyers are taught to think about discrimination in its narrowest terms and based only on certain classifications. Many of us assume that our social institutions, like marriage, which are created and supported by our laws, are not discriminatory. However, distinctions based on sexual orientation often determine who may participate in those institutions.

The cases that follow examine discrimination against lesbians and gay men in various contexts. The cases involve access to the political process, employment discrimination, military service, marriage, domestic partner benefits, adoption, and child custody.

Political Access

Within the last year alone there have been several significant cases affecting lesbians and gay men. Most important is Evans v. Romer, perhaps better known as the Colorado Amendment 2 case.(1) This amendment to the Colorado Constitution provides:

Neither the state of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. . . .(2)

In 1992, through Colorado's initiative process, Amendment 2 was passed by the Colorado electorate 53.4 percent to 46.6 percent. Passage was the result of a campaign by right-wing conservatives to repeal existing laws protecting lesbians and gay men from discrimination and to prohibit future passage to these laws.

Several plaintiffs, including a number of Colorado's political subdivisions, brought suit to stop enforcement of Amendment 2. Now pending before the U.S. Supreme Court, Evans specifically addresses the question of whether lesbians and gays have a fundamental right to participate in the political process. The Colorado Supreme Court found Amendment 2 unconstitutional, holding that a state constitutional amendment that "fences out" an "independently identifiable class of persons" must be subjected to strict judicial scrutiny.(3) It also found that the state proved no compelling interest to justify Amendment 2.(4)

In Equality Foundation of Greater Cincinnati v. City of Cincinnati,(5) a case nearly identical to Evans, the Sixth Circuit upheld the right of the city to enact Issue 3, which has the same impact as Colorado's Amendment 2.(6) The court found that lesbians and gays do not constitute an identifiable class for purposes of constitutional review.(7) It also found that Issue 3 did not violate the Equal Protection Clause of the Fourteenth Amendment and that no fundamental right to equal participation in the political process existed apart from suspect classifications.(8)

Also, the court held that no First Amendment rights were implicated by the enactment of Issue 3.(9) Some gay rights advocates fear that this decision could presage a Supreme Court decision in Evans.

Should the high court's opinion mirror the Sixth Circuit's, right-wing conservatives would be given the green light to pursue the passage of similar amendments and referenda throughout the country, with no likely court intervention. Progress toward the elimination of sexual orientation discrimination would be severely inhibited. In fact, such a decision would subject individual gays and lesbians to increased discrimination.

Consequently, Evans is a landmark case for the gay and lesbian community, probably even more significant than Bowers v. Hardwick,(10) and comparable to Dred Scott v. Sandford(11) in potential notoriety. A decision in the case is expected sometime next term.

On a brighter note, Rhode Island recently passed a bill banning discrimination on the basis of sexual orientation in credit, housing, employment, and public accommodations.(12) Eight states had previously provided some civil rights protections for lesbians and gays, including California, Connecticut, Hawaii, Massachusetts, Minnesota, New Jersey, Vermont, and Wisconsin.(13)

Recently, however, the U.S. Supreme Court decided that applying a state law prohibiting discrimination on the basis of sexual orientation in public accommodations to a private parade violated the First Amendment.(14)

Employment Discrimination

Also, an effort is under way at the federal level to protect lesbians and gays from employment discrimination. Pending in Congress is the Employment Nondiscrimination Act (ENDA),(15) which would prohibit employment discrimination on the basis of sexual orientation by most employers, including Congress. ENDA would extend to gay men and lesbians many of the same protections now established for race, gender, religion, national origin, age, and disability.

Discrimination protections under ENDA do not extend, however, to the armed forces or religious organizations. Nor do they extend employee benefits to the partners of gay employees. In addition, disparate impact, as used in Title VII(16) cases, would not establish a prima facie violation of the act. When introduced this year, ENDA had 30 sponsors in the Senate and 118 in the House, although its prospects for passage in the near future appear remote.

Military Service

In the military, the fight to end discrimination against gays and lesbians continues. After the "Don't ask, don't tell" rule became military policy,(17) plaintiffs argued in threc cases that although the regulation does not bar homosexuals from military service, it does preclude them from acknowledging their preference or their "propensity" to engage in homosexual acts. The plaintiffs contended that discrimination on the basis of status, not homosexual conduct,(18) is unconstitutional under the First and Fifth Amendments.

Courts in the three cases issued contradictory opinions. In Able v. United States, the judge found that in the military context, the government must show a substantial interest in the enactment of content-based speech regulations and concluded that the military's policy was unconstitutional under the First Amendment.(19) The court avoided the question of whether sexual orientation is a "suspect classification," finding that denial of the fundamental right of freedom of speech to lesbian and gay service members required strict scrutiny review.(20)

In Philips v. Perry(21) and Thomasson v. Perry,(22) the courts held that gay service members do not constitute a suspect or quasi-suspect class for purposes of equal protection review. They also found that the First Amendment does not protect service members' statements about their homosexuality because these statements indicate a propensity to engage in prohibited conduct. All three cases are being appealed.

Marriage

Perhaps the most exciting legal development for the gay community is that gays and lesbians may soon win the right to marry in Hawaii. The Hawaii Supreme Court, in Baehr v. Lewin, found that the state's policy of prohibiting homosexual couples from marrying violated Hawaii's constitutional guarantee of equal protection on the basis of gender.(23)

The court found that under Hawaii law, strict scrutiny must be applied to the state's marriage laws.(24) It remanded the case to the trial court to give the state an opportunity to prove a compelling interest in maintaining its discriminatory statutory scheme.

Legal observers believe that the Hawaii courts will reject the state's proferred reasons for its exclusionary marriage policy. Accordingly, sometime in 1996 or 1997, state-sanctioned marriage should become available to lesbians and gay men for the first time in U.S. history.

The Hawaii Supreme Court is the first to recognize that marriage laws discriminate against lesbians and gays and that courts as well as legislatures may act to end this bias. Just last January, in Dean v. District of Columbia, the District of Columbia Court of Appeals dismissed a challenge to the District's marriage law.(25)

The suit was brought by two gay men who argued that the gender-neutral law did not exclude same-sex marriage and that the D.C. Human Rights Act,(26) one of the most comprehensive in the country, compelled the issuance of a marriage license to them.

The court found that the District's marriage laws were never intended to include same-sex couples and that there is no fundamental right for same-sex couples to marry under the Due Process Clause.(27) The court also held that the District's marriage laws do not invoke equal protection review. Dean is the most recent in a series of cases holding that marriage laws that discriminate against gay men and lesbians are lawful.(28)

If Hawaii allows gay couples to marry legally, other states would be required to give "full faith and credit" to the new law under Article 4 of the U.S. Constitution, and Hawaii's same-sex marriages could be recognized in other states. The principle of "full faith and credit," however, is not absolute. It is subject to exceptions that could be the source of extensive litigation by states choosing to resist same-sex marriages.(29)

Efforts have already begun in some state legislatures to prevent the implementation of any policy allowing gay couples to marry. The effort to ban gay marriage failed by one vote in South Dakota but was successful in Utah.(30) Legislation making marriage a civil contract between "one man and one woman" has also been introduced in Alaska." It is unclear what the result will be if lesbians and gay men who are married under Hawaii's expected new marriage laws challenge exclusionary laws passed by other states.

Domestic Partner Benefits

Because lesbians and gays have been unable to marry, there has been a nationwide movement toward "domestic partner" registration and its accompanying benefits. While domestic partner registries allow same-sex couples to document their relationships, they do not necessarily entitle partners to receive benefits automatically. Benefits are generally employment-related and often allow the partners of gay employees participation in health insurance plans, for example.(32)

After years of proliferation of these policies in both the public and private sectors, recently courts have found that Atlanta and Minneapolis have exceeded their municipal powers in granting equal employment benefits for partners of city employees.(33) In the Atlanta case, however, the Georgia Supreme Court sustained the creation of a domestic partner registry and upheld Atlanta's gay rights ordinance.

Adoption

In another family-related area, numerous courts have allowed same-sex couples to obtain legal recognition of their relationships with each other's children through adoption, or by adopting children simultaneously, which results in the children having equal legal ties to each parent.(34) These adoptions have come to be known as "second-parent" adoptions. They provide each parent with the legal rights and responsibilities of any parent, including the right to seek custody and visitation and the obligation to support the child. Second-parent adoptions ensure the possibility of a continuing relationship between a parent and child and the provision of child support if the two parents should separate.

Courts granting second-parent adoptions have generally found that the adoption would be in the child's best interest and that nothing in the adoption law at issue would preclude this decision. Other courts have found no specific grant of authority for these adoptions and have dismissed the adoption petitions.(35)

The case of Victoria Lane and Laura Solomon and their two children provides a poignant illustration of why legal recognition of lesbian and gay families is crucial to their long-term financial stability and psychological well-being. Lane and Solomon were in a committed lesbian relationship. To expand their family, Solomon had a biological child and Lane adopted a child. Under law, neither woman was legally related to the other's child or to her partner.

In the first second-parent adoption to be approved in the District of Columbia, both women were granted legal rights and responsibilities to both children.(36) Several years after the second-parent adoptions were granted, Lane was killed when a tree fell on the car that she was driving.

Because both of her children were legally related to her, they were eligible for Social Security and other benefits, which was crucial to the financial stability of the family. In addition, both children had standing to pursue tort actions against the District, which was allegedly negligent in failing to remove the tree that killed Lane.

Recently, a trial court held that Solomon was Lane's "next of kin" under the District of Columbia's Wrongful Death Act. This was a new precedent for the D.C. courts. It meant that Solomon could pursue a tort action against the District for Lane's death.(37) Under traditional tort law, Solomon appeared to have no claim against the city, even though she had been Lane's emotional and financial partner for 13 years.

The Solomon v. District of Columbia holding compares in significance to two other cases: Braschi v. Stahl Associates, in which a gay man was found to be a member of his deceased partner's "family" purposes of New York's rent control law,(38) and In re Kowalski, where Karen Thompson and Sharon Kowalski were characterized as a "family of affinity" by the Minnesota Court of Appeals in a guardianship proceeding after many years of litigation.(39) Had legal marriage been available to Victoria Lane and Laura Solomon, Miguel Braschi and his partner, Leslie Blanchard, and Karen Thompson and Sharon Kowalski, these cases would have been unnecessary.

Child Custody

Discrimination against homosexual parents continues to surface in child custody proceedings. The Virginia Supreme Court recently held in Bottoms v. Bottoms that custody of the three-year-old son of a lesbian mother should be transferred to the boy's matcrnal grandmother.(40) The grandmother brought a proceeding against her daughter after learning of her daughter's lesbian relationship.

The case is particularly significant because a third party gained custody of the child from a lesbian mother, albeit a third party with a strong relationship to the child.(41)

Although the Virginia Supreme Court found that Sharon Bottoms was "unfit," it specifically focused on the assumption that her son, Tyler Doustou, would suffer from the social stigma of living in a lesbian household. There was no evidence of any actual harm to Tyler.

Other courts have rcquired that a "nexus" between a parent's sexual orientation and harm to a child be proven, not assumed.(42)

In addition, the notion that potential social stigma may be considered a factor in child custody proceedings was specifically rejected in Palmore v. Sidoti.(43) In this 1984 case, the U.S. Supreme Court found that racial prejudice did not justify removing a child from a household with a stepparent of a different race. The Virginia Supreme Court has refused to rehear Bottoms.

Bottoms also runs counter to court decisions acknowledging that children raised in same-sex households may have a right to a continued relationship with a nonbiological, nonadoptive parent. The Wisconsin Supreme Court held recently that a court may order visitation so a child born into a lesbian family can maintain a relationship with the nonbiological mother, even over the biological mother's objection.(44) Similarly, the New Mexico Court of Appeals allowed a nonbiological lesbian mother to pursue a continued relationship with the child she coparented.(45)

The New York Court of Appeals, however, denied standing to a member of a lesbian couple to assert custody or visitation rights to the child the couple had raised jointly.(46) The woman who was denied standing was neither the biological nor adoptive mother.

What will the rest of the 1990s hold for gay-related litigation? The answer is unclear In many respects, the courts have recognized the right of lesbians and gay men to participate in public and private life in ways that would have been beyond almost anyone's imagination 25 years ago.

Those protections, however, are under attack in both the courts and legislatures. It appears, therefore, that only with enormous effort will they be preserved and extended.

Michele A. Zavos, an attorney in Washington, D.C., is an adjunct professor at Washington College of Law at American University and George Washington University.

Notes

(1) 882 P.2d 1335 (Colo. 1994), cert. granted, 115 S. Ct. 1092 (1995). (2) Id. at 1338. (3) 854 P.2d 1270 (Colo. 1993) (Evans I) (preliminary injunction decision). (4) 882 P.2d 1335, 1350. (5) 54 F.3d 261 (6th Cir. 1995). (6) Issue 3 (Article XII of the City Charter of Cincinnati) provides: "The city of Cincinnati and its various boards and commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment." Id. at 263. (7) Id. at 267-68. (8) Id. at 268-69. (9) Id. at 269. (10) 487 U.S. 186 (1986). In Bowers, the Supreme Court upheld a Georgia statute criminalizing sodomy as applied to same-sex couples. Although the statute made no distinction between heterosexual and homosexual sodomy, the Court characterized the case as presenting the question of whether homosexuals had a fundamental right to engage in sodomy. (11) 60 U.S. 393 (19 How. 1857) (holding that people of African ancestry were not citizens of the United States, regardless of their status as free or slave). (12) 1995 R.I. Pub. Laws 95-32. (13) Laurie Asseo, Justices to Review State Ban on Laws Protecting Gays, CHI. DAILY L. BULL., Feb. 21, 1995, at 1. (14) Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, No. 94-749, 1995 WL 360192 (U.S. June 19, 1995). (15) H.R, 1863, 104th Cong., 1st Sess. (1995); S. 932, 104th Cong., 1st Sess. (1995). (16) 42 U.S.C. [sections]2000e-z (1994). (17) National Defense Authorization Act of 1994 [sections]571, 10 U.S.C. [sections]654(b) (1994). (18) The Supreme Court held in Bowers that homosexual conduct, specifically sodomy, may be criminalized. (19) 880 F. Supp. 968, 977 (E.D.N.Y. 1995). (20) Id. at 980. (21) 883 F. Supp. 539 (W.D. Wash. 1995). (22) No. 95-252-A (E.D. Va. June 8, 1995). (23) 852 P.2d 44 (Haw. 1993). (24) The court relied on the Supreme Court's ruling in Loving v. Virginia, 388 U.S. 1 (1967) (holding state interracial marriage bans unconstitutional). (25) 653 A.2d 307 (D.C. 1995). (26) D.C. CODE ANN. [sub sections]1-2501-1-2557 (1977). (27) 653 A.2d 307, 331. (28) See, eg., McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971), cert. denied, 405 U.S. 1046 (1972); Baker v. Nelson, 191 N.W.2d 185 Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). (29) See, eg., Sun Oil Co. v. Wortman, 486 U.S. 717 (1988); Hughes v. Fetter, 341 U.S. 609 (1951). (30) UTAH CODE ANN. tit. 30, ch. 1, [sections]4 (effective May 1, 1995). See also David W. Dunlap, Some States Trytng to Stop Gay Marriages Before They Start, N.Y. TIMES, Mar. 15, 1995, at A18. (31) Dunlap, supra note 30. (32) See Jeff Barge, More Firms Offer Benefits for Gay Coupks, A.BA. J., June 1995, at 34; Kara Swisher, Coming Out for Gay Rights, WASH. POST, June 16, 1995, at D1. (33) City of Atlanta v. McKinney, 454 S.E.2d 517 (Ga. 1995); Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. Ct. App. 1995). (34) See, eg., Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993); Adoptions of B.L.V. B. and E.L.V.B., 628 A.2d 1271 (Vt. 1993). (35) Compare Adoption of Tammy, 619 N.E.2d 315, 318 (best interests standard) with Georgia G. v. Terry M., 516 N.W.2d 678 (Wis. 1994) (state adoption laws do not sanction adoption of child by same-sex couple). (36) Adoption of Minor (T) and Minor (M), No. A-270-90 (D.C. Super. Ct. Oct. 21, 1991). Several other second-parent adoptions have been granted subsequently in the District. The District of Columbia Court of Appeals recently overturned a 1994 decision that held that District adoption law does not permit secondparent adoptions. In re Bruce M. and Mark D., No. 94-GS-620 (D.C. June 30, 1995). (37) Solomon v. District of Columbia, No. 94-2709 (D.C. Super. Ct. Apr. 27, 1995). (38) 543 N.E.2d 49 (N.Y. 1989). (39) 478 N.W.2d 790 (Minn. Ct. App. 1991). (40) 457 S.E.2d 102 (Va. 1995). (41) See also Phillips v. Phillips, CA 94-03-005, 1995 WL 115426 (Ohio Ct. App. Mar. 20, 1995) (unpublished opinion) (Ohio Court of Appeals ruled that a trial court abused its discretion by giving a lesbian mother physical custody of her children). (42) See, eg., S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); Bezio v. Patenaude, 410 N.E.2d 1207 (Mass. 1980). (43) 466 U.S. 429 (1984). (44) Holtzman v. Knott, No. 93-2911, 1995 WL 357902 Wis. June 13, 1995). (45) A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992). (46) Allison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991).