Thursday, September 23, 2010

Legal Commentary: Gay Rights

Earlier this week, Don't Ask Don't Tell failed to pass in the senate after a filibuster by John McCain. But the wind isn't out of the sails of gay rights.

Tomorrow there's a major ruling in favor of gays expected from a Tacoma Federal Court:
Witt, a highly decorated flight nurse with 18 years of service, was fired for homosexual conduct in 2004. She contested her dismissal, arguing the action infringed on her constitutional rights.

The Air Force's attorneys presented the core of their case Tuesday morning, arguing that all military regulations must be enforced uniformly.
The Federal judge hearing the trial previously ruled in the case that Don't Ask Don't Tell was unconstitutional. The ruling was overruled, but the case was remanded for lower courts with instructions that the judge should re-hear the case, and rule based on whether the military had cause. The higher court explicitly said that she couldn't be fired just for being a lesbian.

If the likely ruling comes down against DADT (and judging by the few snippets quoted from the judge, I'd feel pretty safe to bet that it will), it will again be headed towards the Supreme Court.

For those of you counting at home, that means that the next term of the Supreme Court could include two major cases against Don't Ask Don't Tell, one major case against Proposition 8, and one major case against the Defense of Marriages Act.

How did this all happen in a year? Well, I think this quote from the current DADT trial spells it out:
James Lobsenz, Witt's attorney who presented the closing arguments in her case, expressed disbelief at the Air Force's contention that the Appeals Court had not put the burden of proof on them.

"Nobody in their right mind would think that the burden of proof rested anywhere else," Lobsenz said.
This is, actually, a pretty extreme shift in legal thinking, but one which quietly has taken place. Previously, the level of bigotry in this nation was such that from a legal perspective, it was "obvious" why homosexuals were treated differently. The burden of proof was on homosexuals to prove why they should be treated equally. They managed it in Lawrence v. Texas by demonstrating that their bedrooms are their private concerns; but in the public sphere, it was largely uncontested that they had to prove their equality.

Now, however, federal courts in both the north-East and along the Pacific, as well as some state courts in the Mid-west, have finally tipped over.

The question, however, is whether the Supreme Court has tipped on this issue. I think it has; I think that Kennedy, Kagan, Sotomayor, Ginsberg, and Breyer will treat discrimination against homosexuals skeptically. In fact, I'm not unconvinced that Roberts and Alito may also be skeptical; they don't have much of a paper trail on gay rights (although after these cases, we will unequivocally know their opinions). Alito once called for decriminalization of sodomy (in the 1970s).

But let's see what happens.

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