Saturday, February 20, 2010

Recent news and commentary

Commonwealth of Massachusetts v. U.S. Department of Health Services et al.

Massachusetts Attorney General Martha Coakley has filed a motion for summary judgment in in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services (D. Mass. Case No. 1:2009-cv-11156, filed July 8, 2009). She argues that the federal DOMA violates the Tenth Amendment by encroaching on Massachusetts' exclusive authority to define marriage. She also makes two arguments based on the Spending Clause. (Art. I, §8) First, the 14th Amendment's guarantee of equal protection bars the federal government from restricting federal funds according to DOMA's eligibility criteria. Second, the Spending Clause requires a relationship between such restrictions and the purposes of such laws as Medicaid, but DOMA's restrictions bear no relationship to the purposes of federal laws involving federal benefits to married couples. (AP / JURIST)

Adoption - Florida

I have only recently begun to monitor litigation about adoption by gay and lesbian parents. Three same-sex couples have finalized adoptions in Florida since 2008, despite a state law [Fla. Stat. §63.042(3)] that bans such adoptions. (1/26/10 Miami Herald) The latest case - in Miami-Dade County (11th Judicial) Circuit Court - concerns adoption of a one-year-old child by Vanessa Alenier, who lives with her partner, Melanie Leon. According to the Herald, Judge Maria Sampedro-Iglesia decided that the adoption ban is "unconstitutional on its face." It violates the child's right to permanent placement with adopting parents. (The Herald obtained the ruling, but the Court has not posted it at its website, and it's not available through Westlaw.) The Florida Department of Children & Families will appeal the ruling. ( 2/18/10 / cross-posted at ADF Alliance Alert)

A judge in Key West - Monroe County (16th Judicial) Circuit Judge David J. Audlin - was the first to rule that the law violates the state constitution's equal protection clause. [In the Matter of the Adoption of John Doe, 2008 WL 5070056 (Fla. 16th Cir. Ct. Aug. 29, 2008)] In that case, a gay parent was able to adopt a child he had been raising in foster care. The ruling was not appealed.

Less than three months later, a Miami-Dade County Circuit judge granted an adoption petition by a gay foster parent, Martin Gill. (NPR). Judge Cindy Lederman ruled ( link) that the adoption law violates the child's right to permanency in adoptive placement, and that the state has no rational basis for its unequal treatment of adoptable children and adopting parents. The case is on appeal in the Third District. (In re Matter of Adoption X.X.G and N.R.G., No. 3D08-3044) The ACLU, which represents Gill, has a case profile, and posts appellate briefs here.

Marriage equality - D.C.

The D.C. Superior Court has - for the third time - ruled against plaintiffs trying to invalidate an Election Board's decision that the D.C. Human Rights Act prohibits ballot qualification of a measure on recognition of same-sex marriage. (Washington Post; Windy City News; HRC Back Story) The latest legal challenge involves a referendum on D.C.'s marriage-quality law [engrossed version]. Judge Brian F. Holeman tentatively denied a motion for a preliminary injunction against the pending effective date of D.C.'s marriage-equality law (Windy City News), and an appeal is likely. (Metro Weekly) The law will take effect March 3rd unless Congress intervenes, or unless the D.C. Court of Appeals issues a stay. Representing the plaintiffs, the Alliance Defense Fund has filed an appeal of the ruling in Jackson v. District of Columbia Board of Elections and Ethics, (DC Super. Ct., Jan. 14, 2010). (Religious Clause) In that ruling, the Superior Court upheld a D.C. Elections Board decision against the proposed Marriage Initiative of 2009.

Other news

Today, law professor Nan Hunter addresses "The Future of Sexuality and Gender Law and Scholarship" at the Williams Institute. (LGBT POV) She blogs at at Hunter of Justice.

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