The State of LGBT Rights: Ohio, America, and the World



The State of LGBT Rights: Ohio, America, and the World

Cleveland-Marshall College of Law Moot Court Room

Friday, October 30, 2009

1:00 – 1:10 p.m. Welcome & Introduction

Geoffrey Mearns, Dean, Cleveland State University,

Cleveland- Marshall College of Law

1:10 – 2:40 p.m. National Perspective

Introduction by Thomas Hodgkiss-Lilly, CM Allies Secretary

Susan Becker, Law Professor, Cleveland-Marshall College of Law

Camilla Taylor, Senior Staff Attorney, Lambda Legal (Midwest)

Sarah Warbelow, State Legislative Director, Human Rights Campaign

2:40 – 3:00 p.m. Break

3:00 – 4:30 p.m. State and Local Perspectives

Moderated by Maya Simek, CM Allies President

Carrie Davis, Staff Attorney, ACLU of Ohio

Lynn Bowman, Executive Director, Equality Ohio

Susan Doerfer, Executive Director, The LGBT Center

of Greater Cleveland

Joe Cimperman, City Council Member, Cleveland

4:30 – 5:30 p.m. International Perspective

Introduction by Alana Jochum, CM Allies Treasurer

Paula Ettelbrick, Immediate Past Executive Director, International

Gay & Lesbian Human Rights Commission

5:30 – 6:30 p.m. Reception in Law School Atrium

Presented by Cleveland State University’s Cleveland-Marshall College of Law, CSU’s Office of Diversity and Multicultural Affairs, CSU’s Gay, Lesbian, Bisexual and Transgender Student Services, the Ohio ACLU and the CM Allies. In addition to the CM Allies officers listed above, Allies Vice President Scott Davidson played a major role in the planning and facilitating of this conference.

Generous support also provided by the Northeast Ohio Chapter of the American Constitution Society and CM Student Chapter, Cleveland State Law Review, Cleveland-Marshall Law Library, Black Students Law Association (BLSA), Women’s Law Students Association (WLSA), Student Bar Association (SBA), Democratic Law Organization (DLO), and Hispanic Law Students Association (HLSA).

Index to CLE Materials

Speakers’ Biographies ….. 3

Brief History of the Struggle for LGBT Equality ….. 7

Relationship Recognition and Family law:

Understanding Where We Are and How We Got Here ….. 12

Varnum et al v. Brien (Iowa marriage decision) ….. 17

Maine Marriage Statute ….. 24

Ohio Statutory and Constitutional Ban on Same-Sex Marriage ….. 27

Ohio’s LGBT Family Law Legal Landscape ..… 28

Cleveland’s Declaration of Domestic Partnership ….. 33A-B

ACLU Letter to Louisville HS on Same-Sex Couple attending Prom ….. 33C-D

Employment Matters:

Employment Discrimination on the Basis of Sexual Orientation ….. 34

Ohio HB 176 Summary (Nondiscrimination Act passed by Ohio House) ….. 42

HRC Status of U.S. Law Maps:

Marriage Equality and Relationship Recognition

Marriage Prohibition Map

Parenting Laws: Second Parent Adoption

Parenting Laws: Joint Adoption

Statewide Employment Laws

Note: An extensive collection of additional resources including video recording of this conference are publically available at

Speakers’ Biographies

Additional information about each speaker is available via CM’s web page for this conference.

Professor Susan Becker joined the faculty of Cleveland-Marshall in 1990 and was named the Charles R. Emrick Jr.-Calfee Halter & Griswold Professor of Law in the fall of 2007 and will hold that position until summer 2010. Her teaching areas include Civil Procedure, Remedies, Legal Ethics, and Sexual Orientation and the Law. Her scholarship focuses on civil litigation practice, civil justice reform, and sexual minorities and the law.

Professor Becker’s public interest work includes serving as a board member or as pro bono counsel for various not-for profit organizations in Northeast Ohio. She has worked closely with Lambda Legal and other national non-profit entities in representing organizations that wish to participate as amicus curiae (“friends of the court”) in high profile cases where the sexual orientation of one or more parties is at issue. Professor Becker served on the board of the Cleveland Chapter of the Ohio ACLU for many years before being election to the state board in 2004. She was elected president of the ACLU Ohio Board in 2009.

Lynne Bowman is one of the many founders of Equality Ohio. Since its formal incorporation in 2005, she has served as the organization’s Executive Director. She came to the role with 17 years of organizational leadership experience in the non-profit, for-profit and government sectors, focused on providing and improving services for people with developmental disabilities across Ohio. A graduate of Otterbein College with degrees in both Psychology and Music Theory & Composition, she later returned to study business and went on to receive a Master of Arts in Administration from Central Michigan University.

Lynne is a graduate of the Ohio County Boards Association Superintendent Development Program class of 2003, Leadership Columbus class of 2007, a member of the United Way of Central Ohio’s Diversity & Inclusion Committee, an ex-officio board member of Plexus in Northeast Ohio, and currently serves as the Board Chair of the Equality Federation, a national organization dedicated to strengthening statewide LGBT organizing.

Joe Cimperman represents Ward 13 in his third term on Cleveland City Council. His ward is one of the largest and most diverse in Cleveland and includes downtown and the surrounding neighborhoods. Councilman Cimperman currently serves as the Chair of the City Planning Committee, Vice-Chair of the Finance Committee and as a member of the Health and Human Services Committee and Legislation Committee on Cleveland City Council. He represents the Council on the Cleveland City Planning Commission.

Since first being elected in 1997, Councilman Cimperman has focused his efforts on community revitalization. His many achievements in that area and his long list of other community activities resulted in his being named as the 2008 recipient of the prestigious Ruth Ratner Miller Award in recognition of his outstanding record of civic achievements and continuing commitment to Cleveland.

Councilman Cimperman sponsored and successfully lobbied for the passage of legislation creating the Domestic Partner Registry for the City of Cleveland. The registry, one of only three in the State of Ohio, enables same-sex and unmarried couples that live in or out of Cleveland to make an official record of their relationship. Its aim is to help provide health care and other benefits not normally available to domestic partners.

Carrie Davis joined the ACLU of Ohio in 2003 as Staff Attorney. Carrie travels the state working on important civil liberties litigation, lobbying all levels of Ohio government, helping to organize other Ohioans to lobby their officials, and speaking on a variety of subjects.

Carrie has many notable accomplishments with the ACLU. Carrie has served as counsel on landmark cases involving voting rights, free speech, and individual liberties. She regularly testifies before and lobbies members of the Ohio General Assembly. She serves on the board of Ohioans to Stop Executions, a growing organization dedicated to ending the injustice of capital punishment. In 2006, Carrie was honored as a “Champion of Choice” by NARAL Pro-Choice Ohio. Carrie has also trained scores of Ohioans to speak out through her advocacy training program.

LGBT rights issues have been a focal point of Carrie’s work. Carrie served as amicus counsel on several cases testing the scope of Ohio’s marriage amendment, including the pivotal case, Carswell v. Ohio. She has lobbied and testified in support of the Equal Housing and Employment Act, that would extend Ohio’s non-discrimination laws to LGBT people. In 2008, Carrie was part of the advocacy team that successfully lobbied the City of Cleveland to adopt a domestic partner registry. Carrie also serves as a local action team leader for Equality Ohio, helping to organize local advocates to lobby for stronger LGBT protections.

Sue Doerfer has served as executive director of The Lesbian, Gay, Bisexual & Transgender Community Center of Greater Cleveland for the past 4 ½ years. The Center provides direct services to the LGBT community, advocacy for LGBT rights and offers education and diversity training to the greater community.

Before taking over the helm of the LGBT Center, Doerfer worked as the Clinical Director of Services for the AIDS Taskforce of Greater Cleveland. Since relocating to Cleveland in 2001, Doerfer has also served on the County Committee on Disabilities, the Ryan White Case Management Network, the Cleveland Pride Board of Directors and the Regional AIDS Advisory Committee. She has also been involved as an adjunct professor at the Mandel School of Applied Social Sciences and a private practice therapist in Ohio City.

Doerfer holds a Master of Social Work degree and is a board member of CenterLink: The National Association of LGBT Community Centers. Well know for her community leadership and activism, Sue is directly involved in advocating for the rights of the LGBT community in Cleveland, in Ohio and nationally.

Before her move to Ohio, Doerfer worked for many years providing services to people with HIV/AIDS in Newark, New Jersey.

Paula L. Ettelbrick is a lawyer, law professor, writer, speaker, and long-time LGBT rights advocate from New York. Until March, 2009, she was the Executive Director of the International Gay and Lesbian Human Rights Commission (IGLHRC), a US-based non-profit headquartered in New York with regional offices in Buenos Aires, Argentina and Cape Town, South Africa. IGLHRC partners with lesbian, gay, bisexual, and transgender groups around the world to challenge human rights abuse and discrimination and advocate for global policies and laws that respect the rights of LGBT people everywhere.

A lawyer by profession, Paula has a 25-year history in leadership positions within LGBT advocacy non-profits in the United States. She has served as the legal director at Lambda Legal Defense, policy director at National Center for Lesbian Rights, legislative counsel for the Empire State Pride Agenda, and family policy director at the Policy Institute of the National Gay and Lesbian Task Force. Paula has written and spoken extensively about civil, constitutional and human rights issues related to sexuality, gender and sexual orientation. She is an adjunct professor of law at New York University Law School where she teaches Sexuality and the Law, and a lecturer in the Women’s Studies Department at Barnard College. She has also taught in the law schools of the University of Michigan, Columbia University, Wayne State University, Whittier Law School’s Amsterdam Summer Program, as well as New York Law School.

Camilla Taylor is Senior Staff Attorney in the Midwest Regional Office of Lambda Legal, the oldest and largest national legal organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and people with HIV.

Taylor’s litigation docket includes a diverse array of legal matters that span family law, employment discrimination, criminal law and advocacy on behalf of transgender clients. Taylor has traveled throughout the Midwest Region to meet with community groups and help LGBT people and people with HIV better understand their legal rights.

Since joining Lambda Legal, Taylor has been the Midwest Region’s point person for the Marriage Project and successfully represented six gay and lesbian couples in Lambda Legal's marriage equality lawsuit in Iowa, Varnum v. Brien. Taylor has also appeared before numerous Ohio courts to make clear that Ohio's 2004 antigay constitutional amendment, while spiteful and discriminatory, does not leave unmarried people broadly unprotected. In numerous appeals from domestic violence convictions, including the Ohio Supreme Court case, State v. Carswell, Taylor authored amicus briefs opposing criminal defendants' claims that Ohio's constitutional amendment invalidates domestic violence protections for unmarried individuals. Also in Ohio, in a child custody dispute, Taylor represents Therese Fairchild Leach against efforts by her former partner to deprive her of any contact with the child she parented from birth. Leach's ex-partner argues that Ohio's antigay constitutional amendment invalidates the shared custody agreement the two women signed in 2001.

Sarah Warbelow joined HRC in January 2008 as Senior Counsel for Special Projects and Justice for All Fellow. Since September 2009, she has been State Legislative Director responsible for working with state and local legislators and lesbian, gay, bisexual and transgender advocacy organizations in pursuing their LGBT related legislative priorities.

Before joining HRC, Warbelow served as the Program Manager for the American Association of University Women Foundation Legal Advocacy Fund, specializing in education and employment disrimination law. Warbelow is also an affiliated professor at George Washington University and Georgetown University teaching courses on civil rights law and public policy. She received her bachelors’ degrees in social relations and women's studies from Michigan State University and her masters of public policy and law degree from the University of Michigan. Warbelow is admitted to the bar of Michigan.

Brief History of the Struggle for LGBT Equality

Professor Susan J. Becker

The subject of sexual orientation and the law is of relatively recent vintage. Sexual minorities are documented throughout the history of humankind, but for centuries the law either ignored them or championed persecution and punishment for those who dared to reveal their non-heterosexual orientation or identity.

By many accounts, the civil rights movement for sexual minorities in this country was born on June 23, 1969. On that night, gay and transgender patrons of the Stonewall bar in New York City’s Greenwich Village physically confronted the police who habitually harassed them, triggering several days of intermittent rioting.[1] This radical rebellion served as a flash point for the nascent movement.[2] As a result, thousands of sexual minorities came out of the closet and numerous national and international gay rights organizations were established.

This movement also sparked massive challenges to the legal status quo, resulting in a proliferation of legislation, ballot initiatives, case law, executive orders, private law devices, and other legal mechanisms aimed at limiting if not eradicating legally sanctioned discrimination against sexual minorities. Organized backlash by those who disfavor the extension of civil rights to sexual minorities also recorded significant successes. The ongoing battle has generated an explosion of law, creating and shaping a body of jurisprudence that did not exist a few decades ago.

Comparison of the Legal Status of Sexual Minorities, 1970’s and Today

The civil rights movements of the 20th century resulted in laws prohibiting discrimination due to race, gender, and disability.[3] In contrast, legal assurances of equal treatment for lesbian, gay, and bisexual persons have lagged considerably behind.[4] As one family law expert opined just a few years ago, “[t]he story of the last thirty years is the story of advances followed by repercussions.”[5] While this assessment is accurate, comprehensive consideration of the civil rights successes achieved by sexual minorities over the past several decades suggests that, from the perspective of sexual minority advocates, the proverbial glass is at least half full and that the water continues to rise.

Legal Status in the Late 1970s

As of the late 1970s, the legal status of sexual minorities in the U.S. remained grim. In her exhaustive review of law as applied to homosexual and bisexual people,[6] Ohio State Law Professor Rhonda R. Rivera documented rampant employment discrimination.[7] Workplace discrimination pervaded the military, [8] law, medicine, other professions requiring licensure,[9] and public school teaching.[10] In rejecting sexual minorities’ employment discrimination claims, [11] courts relied on - and perpetuated stereotypes of - homosexuals as choosing and pursuing lives of sexual perversion, criminal behavior, innate immorality, and promiscuity.[12]

Family law followed a similar pattern.[13] For example, courts refused to extend marriage rights to same-sex couples,[14] morally condemned people whose sexual minority status was revealed during (heterosexual) divorce proceedings,[15] routinely denied child custody, and frequently imposed severe restrictions on gay and lesbian parents’ visitation rights.[16] As in the employment cases, the family law courts asserted blanket immorality against homosexual spouses and parents. Even parents imprisoned for committing serious crimes were “treated to less spurious moralizing and discrimination” than were homosexual parents.[17] As Rivera concluded, “[j]ustice for the homosexual parent” did “not come cheaply or often”[18] through the late 1970s.

Transgender and intersex individuals faced similar obstacles. Attorney Mary Dunlap[19] observed in the late 1970s that while scientific “data and theories alike counsel against an absolute two-sex presumption, the United States legal system appears to be fastened firmly to the presumption” that “two, and only two, distinct and immutable sexes exist.”[20] Dunlap provided numerous examples of “explicit and implicit legal consequences”[21] in education, family law, and employment that attach to the state’s determination of a person’s sex, further explaining that anyone refusing to conform to his or her assigned sex “almost certainly will experience an array of legal coercions toward conformity with the norms of the majoritarian, dominant culture as to male/female indicia of identity.”[22] Penalties for nonconformity ranged from being prohibited from marrying to being involuntarily committed to a mental institution.[23]

Current Legal Status of Sexual Minorities

Contemporary legal standards governing the lives of sexual minorities contrast sharply with the descriptions provided by Rivera and Dunlap just a few decades ago. The U.S. Supreme Court has declared that certain discriminatory laws “born of animosity” toward gay men, lesbians and bisexuals cannot withstand Equal Protection Clause scrutiny[24] and that sexual minorities are entitled to constitutionally assured privacy in their intimate relationships.[25] As we will see throughout this course, however, the Supreme Court’s pronouncements have not broken down the many barriers to equality in this country.

The status of same-sex marriage, once an unthinkable possibility, changes almost daily on both a national and international level.[26] Domestic partnerships, a legal status that ranges from a minimal offering of legal rights (e.g. Cleveland’s domestic partner registration) to a plethora of rights closely approximating marriage (e.g. New Jersey’s civil unions), continue to proliferate.[27] In addition to public law, domestic partnership recognition and benefits are privately provided by a significant number of employers including most Fortune 500 companies.

In general, sexual minorities are no longer labeled as per se unfit for child custody or visitation. Instead, they are being evaluated under the “best interest of the child” standard used for their heterosexual counterparts.[28] The vast majority of states allow gay, lesbian, and bisexual individuals to adopt children,[29] and about half the states have permitted a same-sex partner to adopt a partner’s child, a process known as “second parent adoptions.”[30] No laws expressly prohibit transsexuals or intersexed persons from adopting children.[31]

The federal government and more than fifteen states prohibit sexual orientation discrimination in public employment;[32] some of these states and many municipal and county governments prohibit discrimination in private employment, public accommodation, education, housing, and other areas.[33] The often-introduced-but-never-passed federal Employment Non-Discrimination Act (ENDA) continues to gather support in both houses of Congress.[34] Many private employers include sexual orientation in corporate non-discrimination policies including 90 percent of the Fortune 500 companies.[35] A significant number of “out” sexual minorities are successfully pursuing political careers.[36] And as the U.S. continues to wage wars in Afghanistan and Iraq, the ban against sexual minorities serving openly in the military is under harsh scrutiny.

Sexual minorities are frequently the victims of violent and sometimes deadly attacks in the U.S. and around the world. Of the forty-five states with hate crime laws, thirty states and the District of Columbia enhance sentences for crimes motivated by hatred towards the victim’s sexual orientation, and twelve of those and the District of Columbia enhance sentencing for crimes fueled by gender identity animosity.[37] Hate crime legislation remains controversial, however, and it is unclear whether it has any deterrent effect.

Future Status of Sexual Minorities

The rights and benefits available to sexual minorities today depend on where they live and work, making comprehensive equality a yet unattained goal. As Professor Rivera acknowledged in 1999, however, this patchwork protection represents a positive sea change compared to slightly more than one generation ago.[38] What will the future bring?

That is indeed a difficult question to answer. As demonstrated by this conference, advocates working to extend equal rights to sexual minorities are now better organized, more sophisticated in their lobbying and public relations efforts, and more effective at fund raising than any other point in history. Surveys of younger generations of Americans indicate a significant shift in favor of equal rights for sexual minorities. At the same time, a counter crusade is being effectively waged by those who argue that the extension of civil rights to sexual minorities will lead to the downfall of western civilization, the undermining of traditional, family structures and values, and the eternal damnation of those who advocate on behalf of sexual minorities. This cultural, political, religious and economic war is being fought out in legislatures and courts, including the court of public opinion. The ultimate result is a chapter of U.S. and world history yet to be written.

Understanding Where We Are and How We Got Here

The LGBT Rights Revolution & Where Ohio Fits:

Understanding where we are, how we got here, and what may be next

Prepared by Carrie Davis, ACLU Ohio Staff Attorney

Intro – LGBT rights touches on many different areas of law, impacting all arenas of life. Over the last few years, we’ve seen a lot of changes in all of them as the LGBT rights movement moves forward. These materials focus on some of the biggest movers. More info on all of these available at and .

I. Marriage & Relationship Recognition

A. Many forms of recognition – varies a lot based on state & local law

i. Govt recognition of relationships include marriage, civil unions, and domestic partnership.

ii. Other types of benefits – public or private – e.g., domestic partner benefits, DP registries, beneficiaries/heirs, hospital visitation, etc.

B. How we got here - History & Timeline (or 2 steps fwd, 1 step back)

What Brought Us Here: Timeline of Key Events

1993 - Hawaii

1994 - Alaska

1996 - Federal DOMA - State DOMAs begin

1997 - Ohio’s first DOMA introduced

1998 - Hawaii, Alaska amend state constitutions to ban gay marriage

1999 - Ohio’s second DOMA introduced

- Other states, including Vermont, begin lawsuits for marriage equality

2000 - Vermont creates civil unions

2001 - Ohio’s “Super DOMA” introduced. Passed by the Ohio House, never taken up by Senate.

2003 - Lawrence v. Texas (June 26, 2003)

- Ohio “Super DOMA” passed, went into effect May 6, 2004.

2004 - Massachusetts sanctions same-sex marriage

- Rash of unsanctioned same-sex marriages performed in San Francisco, CA;

New Paltz, NY; and Multnomah County, OR.

- Federal Marriage Amendment introduced

- 11 more states, including Ohio, pass marriage ban amendments on Nov.2

Hawaii (1993)

The great legal battle we’re presently seeing over legal recognition of same-sex marriage began in 1993, in Hawaii. A state Supreme Court decided, in Baehr v. Miike, that the ban against granting same-sex couples a marriage license appeared to be unconstitutional, under the state's equal protection clause. The court required the state to prove that it had a "compelling state interest" in keeping the ban in place.

Three years later, in 1996, the trial court judge charged with hearing the state's defense ruled that it had failed to prove a compelling legal interest for banning same-sex marriage. Judge Chang thereby declared the ban on gay and lesbian marriage invalid and ordered that the state begin granting marriage licenses to same-sex couples. The state immediately appealed and the court order to begin granting marriage licenses was stayed, pending the appeal to the Hawaii Supreme Court.

Opponents of gay marriage mobilized politically. They sought an amendment to the state constitution that would restrict marriage to heterosexual couples. In November 1998, it was put before voters and approved.

A year later, the Hawaii Supreme Court ruled that the original case, Baehr v. Miike, was moot because of the state constitutional amendment.

Alaska (1994)

A similar case happened in Alaska. In 1994, Jay Brause and Gene Dugan applied for a marriage license and were refused. They contested the decision in court and, in 1998, a judge ruled that denying same-sex couples the right to marry on the basis of their sex constituted sex discrimination.

But, again, opponents of gay marriage mobilized on the political front, put a constitutional amendment to restrict marriage to heterosexual couples before voters and the majority of voters approved it.

Nationwide

You can see from the timeline the effect these two cases had on the nation. States feared that Hawaii, Alaska, or both, may start allowing same-sex marriages and that, under the U.S. Constitution, other states would have to recognize those marriages. In response, we started to see so-called “Defense of Marriage Acts” proposed and passed at both the federal and state level. These DOMAs leave it up to each state’s discretion whether or not they will recognize and honor same-sex marriages performed elsewhere.

Vermont (2000)

A similar debate over whether to recognize same-sex marriage occurred in Vermont a short time later. The state ultimately decided to create “civil unions”, which would provide formal state recognition of same-sex relationships, without calling them “marriages.”

This was a complicated decision with complicated results. There is disagreement in the LGBT community over whether civil unions advance the legal rights of same-sex couples, or whether civil unions act as a barrier to attaining full legal marriage.

The civil unions created in Vermont were meant to be a compromise. They would provide Vermont same-sex couples with the same state rights and benefits enjoyed by married heterosexual couples, but, by not labeling them “marriages”, other states and the federal government would not have to provide reciprocal rights of marriage to those couples.

“Super DOMAs”

Vermont’s civil unions sent another scare through the anti-gay community. Now states feared they may be forced to recognize and honor civil unions. In response, several states, including Ohio, introduced what has become called a “Super DOMA.” A regular DOMA simply provides that a state will not recognize same-sex marriage. A Super DOMA goes beyond that, by providing that a state will not recognize any legal status or rights of same-sex couples, whether marriage or anything else.

Lawrence

The anti-gay community was in for yet another shock. In 2003, the US Supreme Court, in striking down the Texas sodomy statute, said states cannot criminalize same-sex relations.

As we’ve seen over the years, for every legal step forward made by the LGBT community, there is a backlash…

2004

Hawaii, Alaska, and Vermont all sent the message that perhaps the time had finally come. And the Lawrence decision added to that momentum.

In 2004, we saw a dramatic leap forward in recognizing the basic human right to marry. The Massachusetts Supreme Judicial Court said the state could not deny the right to marry to same-sex couples. Without legal authority, same-sex marriages were performed in San Francisco, New Paltz, and Portland. LGBT couples across the country had a reason to celebrate.

However, once again, the anti-gay community mobilized in resistance. They feared statutory prohibitions on same-sex marriage may not be enough, and sought to shore up federal and state constitutions. A federal marriage amendment was introduced and defeated. Unfortunately, 11 states, including Ohio, adopted state constitutional amendments banning same-sex marriage.

Leap forward since 2004

Despite the adoption of several state constitutional amendments, progress moved forward. The combination of litigation and legislation has led to a variety of recognitions.

[See “Relationship Recognition” map and “Marriage Prohibitions” map, attached at end of CLE materials – for all maps check for updates at ]

C. Ohio – state law & where we fit into the national movement [See Ohio law slide, attached]

i. DOMA & Hicks v Cle Hts

ii. Marriage Amendment & Ohio v. Carswell

iii. Focus on rights/protections other than marriage for now

iv. 3 cities have DP registries – Cle Hts, Tol, Cle

v. Many cities, universities, and private employers offer DP benefits

D. Unanswered questions & what may be next

i. More states adopting marriage, civil unions, & DPs

ii. What happens in CA & other cases

iii. Future of the federal DOMA in question (USDOJ brief in CA case, Respect for Marriage Act introduced in Congress)

iv. Full faith & credit clause – Could it be invoked to require recognition of other states’ marriages? What happens in states with a DOMA or constitutional amendment? This really hasn’t been tested. The closest case out there is Loving v. VA.

II. Non-Discrimination Laws [See “Employment laws” map, attached at end of CLE materials]

A. Federal law

i. Currently no federal law expressly protecting LGBT persons.

ii. ENDA repeatedly introduced but not yet passed.

iii. Some coverage may be had under Title VII & Title IX, caselaw varies.

B. State laws around the country (map)

i. 21 states + DC prohibit discrim based on sexual orientation (public & private employees)

ii. 12 states + DC prohibit discrim based on orientation & gender identity (public & private employees)

iii. 9 states have exec/admin order or regs prohibiting discrim against public employees only – 6 states for both orientation & identity (Ohio is one), and 3 states for orientation only

iv. Many more states with legislation introduced

v. In many respects driven by the private sector, need to compete (see our EHEA testimony)

C. Ohio

i. No state law prohibiting discrimination for LGBT.

ii. Gov. Strickland issued exec order providing LGBT discrim protection to all state employees.

iii. EHEA pending in OGA – will cover employment, housing, and public accommodations (current status: HB 176 EHEA passed Ohio House Sept. 15, 2009, and now awaits Senate action.)

iv. A growing number of Ohio cities have an LGB or LGBT anti-discrimination ordinance (see chart)

III. Parenting & Adoption (very briefly) [See “Parenting Laws” map, attached at end of CLE materials]

IV.

A. National picture, state-by-state (map)

B. Ohio

i. In re Charlie B & ORC allow gay person to adopt, “best interest of the child” standard

ii. Brouhaha in early ’09 over Butler Co “preference” for married

iii. 2nd parent adoptions not allowed -- In 1998, an Ohio appeals court held that a parent’s parental rights are terminated upon adoption of the child by a non-spousal partner – and Ohio won’t recognize a same sex spouse, so no luck. [In re Adoption of Doe, 719 N.E.2d 1071, (Ohio App. 9 Dist., 1998)]

Iowa Marriage Decision

KATHERINE VARNUM, PATRICIA HYDE, DAWN BARBOUROSKE, JENNIFER BARBOUROSKE, JASON MORGAN, CHARLES SWAGGERTY, DAVID TWOMBLEY, LAWRENCE HOCH, WILLIAM M. MUSSER, OTTER DREAMING, INGRID OLSON, and REVA EVANS, Appellees, vs. TIMOTHY J. BRIEN, In His Official Capacities as the Polk County Recorder and Polk County Registrar, Appellant.

No. 07-1499

SUPREME COURT OF IOWA

763 N.W.2d 862

April 3, 2009, Filed

Note: Twenty four amicus curie briefs were filed in this case, with each brief often representing numerous individuals and organizations.

The Iowa Supreme Court unanimously affirmed the state district court’s summary judgment declaring that the Iowa statute limiting civil marriage to a union between a man and a woman is unconstitutional. Key passages from this very lengthy opinion are provided here, and most footnotes have been omitted.

Court’s opinion:

Background Facts and Proceedings.

This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected--a belief embraced by our state motto. 1

1 The state motto of Iowa is: "Our liberties we prize and our rights we will maintain." It is inscribed on the Great Seal of Iowa and on our state flag. See Iowa Code §§ 1A.1, 1B.1 (2009).

Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.

Unlike opposite-sex couples in Iowa, same-sex couples are not permitted to marry in Iowa. The Iowa legislature amended the marriage statute in 1998 to define marriage as a union between only a man and a woman. 2 Despite this law, the six same-sex couples in this litigation asked the Polk County recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the six couples have been unable to be married in this state. Except for the statutory restriction that defines marriage as a union between a man and a woman, the twelve plaintiffs met the legal requirements to marry in Iowa.

2 Iowa Code section 595.2(1) provides "[o]nly a marriage between a male and a female is valid." All statutory references are to the 2009 Code of Iowa. While some statutes referenced here have been amended since this lawsuit originated, none of the amendments dictate the outcome of this case.

As other Iowans have done in the past when faced with the enforcement of a law that prohibits them from engaging in an activity or achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to the courts to challenge the statute. They seek to declare the marriage statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment.

In turning to the courts, the twelve plaintiffs filed this lawsuit in the Polk County District Court. They claimed the statutory same-sex marriage ban violates certain liberty and equality rights under the Iowa Constitution. The individual rights claimed by plaintiffs to be adversely affected (by the action of the legislative branch in enacting the same-sex marriage ban and the action of the government officials of the executive branch in enforcing the ban) included the fundamental right to marry, as well as rights to privacy and familial association. Additionally, plaintiffs claimed the legislative and the executive actions unconstitutionally discriminated against them on several bases, including sexual orientation.

The case was presented to the district court by means of a summary judgment motion. The record was developed through witness affidavits and depositions. This record included an explanation by some of the plaintiffs of the disadvantages and fears they face each day due to the inability to obtain a civil marriage in Iowa. These disadvantages and problems include the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners' state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections. They also explained how several tax benefits are denied. Adoption proceedings are also more cumbersome and expensive for unmarried partners. Other obstacles presented by the inability to enter into a civil marriage include numerous nongovernmental benefits of marriage that are so common in daily life they often go unnoticed, such as something so simple as spousal health club memberships. Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage.

The parties also explored the reasons for defining marriage in a way that denies these benefits to same-sex couples. The County offered five primary interests of society in support of the legislature's exclusive definition of marriage. The first three interests are broadly related to the advancement of child rearing. Specifically, the objectives centered on promoting procreation, promoting child rearing by a mother and a father within a marriage, and promoting stability in an opposite-sex relationship to raise and nurture children. The fourth interest raised by the County addressed the conservation of state resources, while the final reason concerned the governmental interest in promoting the concept and integrity of the traditional notion of marriage.

Much of the testimony presented by the County was in the form of opinions by various individuals that same-sex marriage would harm the institution of marriage and also harm children raised in same-sex marriages. Two college professors testified that a heterosexual marriage is, overall, the optimal forum in which to raise children. A retired pediatrician challenged the accuracy of some of the medical research that concludes there is no significant difference between children raised by same-sex couples and opposite-sex couples. A clinical psychologist testified sexual orientation is not as defined and stable as race and gender and can change over time. He acknowledged, however, it is difficult to change a person's sexual orientation, and efforts to do so can be harmful to the person.

The plaintiffs produced evidence to demonstrate sexual orientation and gender have no effect on children raised by same-sex couples, and same-sex couples can raise children as well as opposite-sex couples. They also submitted evidence to show that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults. Many leading organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children. For example, the official policy of the American Psychological Association declares, "There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children." 3 Almost every professional group that has studied the issue indicates children are not harmed when raised by same-sex couples, but to the contrary, benefit from them. In Iowa, agencies that license foster parents have found same-sex couples to be good and acceptable parents. It is estimated that more than 5800 same-sex couples live throughout Iowa, and over one-third of these couples are raising children.

3 This statement is the official policy of the American Psychological Association regarding sexual orientation, parents, and children. See Am. Psychological Ass'n Council of Representatives, Am. Psychological Ass'n, Resolution on Sexual Orientation, Parents, and Children (2004), in Ruth Ullmann Paige, Proceedings of the American Psychological Association for the Legislative Year 2004: Minutes of the Annual Meeting of the Council of Representatives July 28 & 30, 2004, Honolulu, HI, 60 Am. Psychologist 436-511 (July-August 2005), available at (reporting adoption of resolution).

The district court concluded the statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and granted summary judgment to the plaintiffs. It initially ordered the county recorder to begin processing marriage licenses for same-sex couples, but stayed the order during the pendency of an appeal.

* * * * * * * * * * *

In fulfilling … [our] mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens' rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress," and as our constitution "endures, persons in every generation can invoke its principles in their own search for greater freedom" and equality. See Lawrence v. Texas, 539 U.S. 558, 578-79, 123 S. Ct. 2472, 2484, 156 L. Ed. 2d 508, 526 (2003) (acknowledging intent of framers of Federal Constitution that Constitution endure and be interpreted by future generations); Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999) ("Our constitution is not merely tied to tradition, but recognizes the changing nature of society.").

* * * * * * * * * * *

Equal Protection.

Background Principles. The primary constitutional principle at the heart of this case is the doctrine of equal protection. The concept of equal protection is deeply rooted in our national and state history, but that history reveals this concept is often expressed far more easily than it is practiced. For sure, our nation has struggled to achieve a broad national consensus on equal protection of the laws when it has been forced to apply that principle to some of the institutions, traditions, and norms woven into the fabric of our society. This observation is important today because it reveals equal protection can only be defined by the standards of each generation. See Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L. Rev. 1161, 1163 (1988) ("[T]he Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure.").

The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society's understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Oliver Wendell Holmes, Justice, Supreme Judicial Court of Massachusetts, The Path of the Law, address dedicating new hall at Boston University School of Law (January 8, 1897), in 10 Harv. L. Rev. 457, 469 (1897). This concept is evident in our past cases.

* * * * * * * * * * *

Application of Heightened Scrutiny. Plaintiffs argue sexual-orientation-based statutes should be subject to the most searching scrutiny. The County asserts Iowa's marriage statute, section 595.2, may be reviewed, at most, according to an intermediate level of scrutiny. Because we conclude Iowa's same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny. Thus, we turn to a discussion of the intermediate scrutiny standard. …

… Intermediate scrutiny standard. "To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective." Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914, 100 L. Ed. 2d 465, 472 (1988). In applying an intermediate standard to review gender-based classifications, the Supreme Court has stated: "Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is 'exceedingly persuasive.' " Virginia, 518 U.S. at 532-33, 116 S. Ct. at 2275, 135 L. Ed. 2d at 751. To this end, courts evaluate whether the proffered governmental objectives are important and whether the statutory classification is " 'substantially related to the achievement of those objectives.'" Id. at 533, 116 S. Ct. at 2275, 135 L. Ed. 2d at 751 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S. Ct. 3331, 3336, 73 L. Ed. 2d 1090, 1098 (1982)).

… Governmental objectives. The County has proffered a number of objectives supporting the marriage statute. These objectives include: …

a. Maintaining traditional marriage.

b. Promotion of optimal environment to raise children.

c. Promotion of procreation.

d. Promoting stability in opposite-sex relationships.

e. Conservation of resources.

[The court analyzes each point at length, evaluating the arguments and evidence submitted by the parties and citing information supplied by amicus curiae.]

Having examined each proffered governmental objective through the appropriate lens of intermediate scrutiny, we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.

Religious Opposition to Same-Sex Marriage. … [W]e consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County's silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.

While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling. Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute.

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the "sanctity of marriage" would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained--even fundamental--religious belief.

Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.

. * * *

. In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage--religious or otherwise--by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person's religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

Constitutional Infirmity. We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.

We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa's marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution.

V. Remedy.

Because our civil marriage statute fails to provide equal protection of the law under the Iowa Constitution, we must decide how to best remedy the constitutional violation. The sole remedy requested by plaintiffs is admission into the institution of civil marriage. The County does not suggest an alternative remedy. …

Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. A new distinction based on sexual orientation [such as a civil union] would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution. This record, our independent research, and the appropriate equal protection analysis do not suggest the existence of a justification for such a legislative classification that substantially furthers any governmental objective. Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.

VI. Conclusion.

The district court properly granted summary judgment to plaintiffs. Iowa Code section 595.2 violates the equal protection provision of the Iowa Constitution. Our decision becomes effective upon issuance of procedendo.

AFFIRMED.

All justices concur.

Maine Marriage Statute

Enacted by the Governor May 6, 2009

SUMMARY

This bill repeals the provision that limits marriage to one man and one woman and replaces it with the authorization for marriage between any 2 persons that meet the other requirements of Maine law. It also specifies that a marriage between 2 people of the same sex in another state that is valid in that state is valid and must be recognized in this State.

This bill also clarifies that the authorization of marriage between 2 people of the same sex does not compel any religious institution to alter its doctrine, policy or teaching regarding marriage or to solemnize any marriage in conflict with that doctrine, policy or teaching. It also specifies that a person authorized to join persons in marriage and who fails or refuses to join persons in marriage is not subject to any fine or other penalty for such failure or refusal.

Underlined material is added; material with strike through is deleted.

An Act To End Discrimination in Civil Marriage and Affirm Religious Freedom

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 19-A MRSA §650,  as enacted by PL 1997, c. 65, §2, is repealed.

Sec. 2. 19-A MRSA §650-A  is enacted to read:

§ 650-A.  Codification of marriage

Marriage is the legally recognized union of 2 people. Gender-specific terms relating to the marital relationship or familial relationships, including, but not limited to, "spouse," "family," "marriage," "immediate family," "dependent," "next of kin," "bride," "groom," "husband," "wife," "widow" and "widower," must be construed to be gender-neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law or any other source of civil law.

Sec. 3. 19-A MRSA §650-B  is enacted to read:

§ 650-B.  Recognition of marriage licensed and certified in another jurisdiction

A marriage of a same-sex couple that is validly licensed and certified in another jurisdiction is recognized for all purposes under the laws of this State.

Sec. 4. 19-A MRSA §651, sub-§2,  as amended by PL 1997, c. 537, §12 and affected by §62, is further amended to read:

2. Application.   The parties wishing to record notice of their intentions of marriage shall submit an application for recording notice of their intentions of marriage. The application may be issued to any 2 persons otherwise qualified under this chapter regardless of the sex of each person. The application must include a signed certification that the information recorded on the application is correct and that the applicant is free to marry according to the laws of this State. The applicant's signature must be acknowledged before an official authorized to take oaths. Applications recording notice of intentions to marry must be open for public inspection in the office of the clerk. When the application is submitted, the applicant shall provide the clerk with the social security numbers of the parties. The application must include a statement that the social security numbers of the parties have been provided to the clerk. The clerk shall record the social security numbers provided by each applicant. The record of the social security numbers is confidential and is not open for public inspection.

Sec. 5. 19-A MRSA §655, sub-§3  is enacted to read:

3.  Affirmation of religious freedom.   This Part does not authorize any court or other state or local governmental body, entity, agency or commission to compel, prevent or interfere in any way with any religious institution's religious doctrine, policy, teaching or solemnization of marriage within that particular religious faith's tradition as guaranteed by the Maine Constitution, Article 1, Section 3 or the First Amendment of the United States Constitution. A person authorized to join persons in marriage and who fails or refuses to join persons in marriage is not subject to any fine or other penalty for such failure or refusal.

Sec. 6. 19-A MRSA §701,  as amended by PL 2007, c. 695, Pt. C, §4, is further amended to read:

§ 701. Prohibited marriages; exceptions

1.  Marriage out of State to evade law.   When residents of this State, with intent to evade this section and to return and reside here, go into another state or country to have their marriage solemnized there and afterwards return and reside here, that marriage is void in this State.

1-A. Certain marriages performed in another state not recognized in this State.   Any marriage performed in another state that would violate any provisions of subsections 2 to 5 4 if performed in this State is not recognized in this State and is considered void if the parties take up residence in this State.

2. Prohibitions based on degrees of consanguinity; exceptions.   This subsection governs marriage between relatives.

A.  A man may not marry his mother, grandmother, daughter, granddaughter, sister, brother's daughter, sister's daughter, father's sister, mother's sister, the daughter of his father's brother or sister or the daughter of his mother's brother or sister. A woman may not marry her father, grandfather, son, grandson, brother, brother's son, sister's son, father's brother, mother's brother, the son of her father's brother or sister or the son of her mother's brother or sister person may not marry that person's parent, grandparent, child, grandchild, sibling, nephew, niece, aunt, uncle or first cousin.

B.  Notwithstanding paragraph A, a man person may marry the daughter of his father's brother or sister or the daughter of his mother's brother or sister, and a woman may marry the son of her father's brother or sister or the son of her mother's brother or sister that person's first cousin as long as, pursuant to sections 651 and 652, the man or woman person provides the physician's certificate of genetic counseling.

3. Persons under disability.   A person who is impaired by reason of mental illness or mental retardation to the extent that that person lacks sufficient understanding or capacity to make, communicate or implement responsible decisions concerning that person's property or person is not capable of contracting marriage. For the purposes of this section:

A.  "Mental illness" means a psychiatric or other disease that substantially impairs a person's mental health; and

B.  "Mental retardation" means a condition of significantly subaverage intellectual functioning resulting in or associated with concurrent impairments in adaptive behavior and manifested during the developmental period.

4. Polygamy.   A marriage contracted while either party has a living wife or husband from whom the party is not divorced is void.

5.  Same sex marriage prohibited.   Persons of the same sex may not contract marriage.

Ohio Statutory and Constitutional Ban on Same-Sex Marriage

Ohio Revised Code Sec.3101.03 (DOMA)

(A)... A marriage may only be entered into by one man and one woman…

(C) (1) Any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state ...

(3) The recognition or extension by the state of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state.

Ohio Constitution (Marriage Amendment of 2004)

§ 15.11 Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

Ohio’s LGBT Family Law Legal Landscape

Provided by Camilla B. Taylor

Lambda Legal

I. Protecting Lesbian and Gay Parents and Their Children

A. Gay and Lesbian Families - Background

As a general matter, state law defines and governs parenting rights.

Federal law may be invoked in this arena in four circumstances:

(1) when the fundamental liberty interest of parental autonomy is infringed;

(2) when state law creates classification of people without legitimate justification;

(3) when the parent/child relationship is a product of a foreign process (i.e. adoption executed in a foreign country and issue of entry into the U.S. under the Child Citizenship Act of 2000); and

(4) when cross-jurisdictional parenting disputes, including cases involving parents who move from one state to another.

B. Gay and lesbian families take many forms

1) Gay men and lesbians seeking to adopt, either individually or together with a partner in a joint adoption.

In re Adoption of Charles B. (1990), 50 Ohio St.3d 88, 552 N.E.2d 884 (Ohio courts may not discriminate on the basis of sexual orientation when considering whether to grant an adoption to a single individual)

2) Planned families in which the child has a biological link to at least one parent.

In re Adoption of Doe (1998), 130 Ohio App.3d 288, 719 N.E.2d 1071 (one intermediate appellate district has disapproved of second parent adoption, but the Supreme Court of Ohio has never ruled on its availability under Ohio law and the issue remains open in Ohio)

In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, superseding on reconsideration 96 Ohio St.3d 218, 773 N.E.2d 507 (gay and lesbian parents may go to juvenile court to obtain orders establishing shared custody with respect to the children they are rearing together; Court altered its decision on motion for reconsideration to excise language denying availability of second parent adoption under Ohio law, deliberately leaving the issue open for another day)

3) Individuals who have children in a marriage that is dissolving or previously ended and now have a same-sex partner.

Inscoe v. Inscoe (1997), 121 Ohio App.3d 396, 700 N.E.2d 70. Rejecting argument that non-marital sexual conduct by one parent justifies denying that party custody, and instead ruling that such conduct affects custody decision only if it is established that conduct negatively affects the child. A person’s sexual orientation is immaterial to custody. See also Conkel v. Conkel (1987), 31 Ohio App.3d 169, 31 OBR 335, 509 N.E.2d 983; Whaley v. Whaley (1978), 61 Ohio App.2d 111, 15 O.O.3d 136, 399 N.E.2d 1270.

This is the test in most jurisdictions today (overall “best interests” of the child are determinative; sexual orientation of parent is a neutral factor).

Sodomy statutes no longer an issue (theoretically)

Palmore v. Sidoti, 466 U.S. 429 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

Emerging issue: clause in stipulated divorce orders such as “No overnight visitors unless married to” parent

II. Ohio law protects a child’s relationship to the adults who function as his or her parents, regardless of whether the adults are recognized parents at law

A. A parent’s voluntary relinquishment to a third party of her otherwise exclusive right to sole custody is enforceable against the parent once a child has formed a significant parental bond with the third party. Ohio courts long have held that when a parent agrees to cede custody of minor children in whole or in part to another person, the parent is bound by that agreement.

In re Hockstock, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971; Reynolds v. Goll, 75 Ohio St. 3d 121, 123, 1996-Ohio-153, 661 N.E.2d 1008 (upholding trial court’s finding that father voluntarily relinquished custody and an award of continued custody to “nonbiological parents”); Masitto v. Masitto (1986), 22 Ohio St.3d 63, 65, 22 OBR 81, 488 N.E.2d 857; In re Perales (1977), 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047 (laying out the standard in detail); Clark v. Bayer (1877), 32 Ohio St. 299.

B. A parent’s agreement to share custody does not have to be in writing or reduced to court order to be enforceable. Courts use a “preponderance of the evidence” standard to determine whether such an agreement existed based on the parties’ writings (if applicable), words, and conduct. Hockstock, supra, 98 Ohio St.3d 238 at ¶17.

Barry v. Rolfe, Cuyahoga App. Nos. 88459-88911, 2008 -Ohio- 3131(upholding father’s contractual relinquishment based on statements of father’s counsel at a hearing); Masitto v. Masitto (1986), 22 Ohio St.3d 63, 65, 22 OBR 81, 488 N.E.2d 857 (whether an agreement exists is a question of fact for the trier of fact to decide on a preponderance of the evidence standard); In re Galan, Seneca App. No. 13-02-44, 2003-Ohio-1298 (enforcing a parent’s contractual relinquishment of custody in favor of nonparents based on a phone conversation and in the absence of any writing); Rowe v. Rowe (1950), 58 Ohio Law Abs. 497, 44 O.O. 224, 97 N.E.2d 223 (language in divorce decree was evidence of prior enforceable agreement to relinquish custody); Reynolds, 75 Ohio St.3d 121 (enforcing nonparents’ custodial rights over parent’s objection in the absence of a court order or other written instrument); Clark, 32 Ohio St. 299 (citing even older cases from other jurisdictions holding that a parent’s agreement to relinquish sole custody is enforceable regardless of whether it is written or “parol”).

III. Ohio courts have applied these established principles in the context of gay and lesbian parents in custody disputes.

In re Jones, Miami App. No. 2000 CA 56, 2002-Ohio-2279 (predated Bonfield, below, and abrogated by Bonfield)

Liston v. Pyles (Aug. 12, 1997), Franklin App. No. 97 APF 01-137, 1997 WL 467327 (concerned only whether a non-parent could make out a claim for shared parenting under R.C. 3109 or various common law theories such as in loco parentis that have been successful in other states but have not taken hold as much here in Ohio; litigant in Liston did not assert a right to custody based on contractual relinquishment under the Reynolds and Perales line of cases).

In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241 (pursuant to R.C. 2151.23(A)(2), a juvenile court has exclusive original jurisdiction to determine the custody of any child who is not a ward of a court; lesbian couple may seek a court order establishing shared custody of minor children)

In re J.D.M., slip op., Warren App. Nos. CA2003-11-113, CA2004-04-035, CA2004-04-040, 2004-Ohio-5409

In re J.D.F., Franklin App. 07-AP-922, 2008-Ohio-2793 appeal dismissed 120 Ohio St.3d 1453, 2008-Ohio-6813, 898 N.E.2d 968 (Dec. 31, 2008)

Morris v. Hawk, 180 Ohio App.3d 837, 2009-Ohio-656, 907 N.E.2d 763

IV. Enforcing parental agreements to share custody is consistent with a parent’s constitutional right to autonomy.

A. Legal parents and others fulfilling a parental role have a fundamental liberty interest in the care, custody and rearing of their children that merits substantive protection under the Due Process Clause of the U.S. Constitution, but this interest is not absolute.

Troxel v. Granville (2000), 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49; Clark, 32 Ohio St. 299, syllabus par. 2 (“The father’s right is not, however, absolute under all circumstances”); Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165 (while there is a presumption under Troxel that fit parents act in the best interest of their children, this presumption is not irrefutable).

B. Ohio courts have determined that it is fully consistent with a parent’s liberty interest in autonomy to enter and enforce that parent’s agreement to share custody of children with a non-parent.

In re Hockstock, 98 Ohio St.3d 238, 242, 2002-Ohio-7208, 781 N.E.2d 971; Bonfield, 97 Ohio St. 3d at 395-96, citing Masitto, 22 Ohio St. 3d at 65.

Recognizing and enforcing parental agreements respects parental autonomy because such agreements reflect a parent’s prior determination that a relinquishment of exclusive custodial rights is in her children’s best interests. Enforcement of such agreements merely prevents the parent from arbitrarily severing the critical parent-child bonds that developed through the legal parent’s encouragement and consent.

V. Ohio’s marriage laws and Ohio’s constitutional provision concerning marriage for same-sex couples have no impact on custody and parenting matters involving same-sex couples

Article XV, Section 11 of Ohio’s constitution (“Issue 1” approved by Ohio voters in November 2004) reads:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage. (Emphasis added.)

A. Ohio courts have construed Ohio’s constitutional amendment banning marriage for same-sex couples narrowly

State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547 (concluding in a case challenging application of Ohio’s domestic violence statute to unmarried heterosexual partners that the Ohio Constitution, Article XV, Section 11, only prevents legislative passage of statute that provides all of the bundled rights and responsibilities of marriage under a different name, i.e., “civil unions;” the amendment does not prevent the state from conferring on unmarried people individual rights or benefits that are commonly associated with marriage)

Brinkman v. Miami University, Butler App. No. CA2006-12-13, 2007-Ohio-4372 (state senator’s claim that state univeristy was prohibited from offering domestic partner benefits by Ohio Constitution, Article XV, Section 11 was dismissed for lack of standing and therefore not decided upon the merits)

B. Enforcing a same-sex couple’s joint parenting rights and/or custodial rights does not implicate marriage laws or Article XV, Section 11 of Ohio’s Constitution

Article XV, Section 11 of Ohio’s constitution has no relevance to parental or custodial relationships.

Court orders concerning parenting or shared custody concern solely the children’s relationships with the adults who are parenting them, not the adults’ relationship to each other. Court orders to share custody and custodial status itself are not dependent on a custodian’s marital status in relation to the legal parent. Countless never-married couples, formerly-married partners, and individuals who are prohibited from marrying (e.g., two siblings or a grandmother and a mother) are jointly raising children in Ohio, and many of these shared custodians are of the same sex.

In re J.D.F., 2008-Ohio-2793. Lesbian biological parent appealed from 10th District ruling upholding order establishing shared custody with her former partner. She argued that Article XV, Section 11 prohibits courts from enforcing a lesbian couple’s agreement to share child custody. The Supreme Court of Ohio dismissed her appeal “as not involving any substantial constitutional question.” 2008-Ohio-6813. Thus, the Court has rejected an invitation to construe Ohio’s Constitution as prohibiting shared custody for gay or lesbian former partners rearing children together.

VI. Practical concerns in drafting shared custody agreements

A. Addressing potential conflicts of interest when representing both partners

(Ohio Rule Prof. Conduct 1.7)

B. Importance of factual findings about the suitability of the parties to share custody

C. Importance of explicit language making clear that the agreement survives termination of the relationship and governs a potential custody dispute

VII. Arguments and legal theories commonly encountered

A. “The contractual relinquishment theories established under Ohio law don’t apply to me because:”

i) “. . . we never wrote down an agreement to share custody or reduced our agreement to a court order.”

ii) “. . . our court order establishing shared custody didn’t use certain magic language [e.g., the parties are “suitable” to share custody] and therefore is invalid and unenforceable.”

iii) “. . . I didn’t understand what I was signing.”

iv) “. . . I didn’t think that this agreement would govern after a break-up.”

B. “Enforcing my agreement to share custody with my former partner would violate the constitutional guarantee of parental autonomy.” Morris v. Hawk, 180 Ohio App.3d 837, 2009-Ohio-656, 907 N.E.2d 763.

C. “My agreement/co-custody order violates the Ohio Constitution’s ‘marriage amendment,’ Section 11, Art XV, and therefore it’s unenforceable.” In re J.D.F., Franklin App. 07-AP-922, 2008-Ohio-2793 appeal dismissed 120 Ohio St.3d 1453, 2008-Ohio-6813, 898 N.E.2d 968 (Dec. 31, 2008)

D. Practitioner’s note: When litigating the validity of co-custody agreements that have been made part of a court order, don’t forget general equitable principles of collateral estoppel, res judicata, and judicial estoppel. In re J.D.F., Franklin App. 07-AP-922, 2008-Ohio-2793 appeal dismissed 120 Ohio St.3d 1453, 2008-Ohio-6813, 898 N.E.2d 968 (Dec. 31, 2008); Morris v. Hawk, 180 Ohio App.3d 837, 2009-Ohio-656, 907 N.E.2d 763.

Employment Discrimination on the Basis of Sexual Orientation

Camilla B. Taylor

Senior Staff Attorney

Lambda Legal Defense and Education Fund

I. The ongoing problem of employment discrimination based on sexual orientation

A. Surveys show that up to 44% of gay and lesbian workers have experienced employment discrimination at some point in their careers; that 14% of gay men and lesbians surveyed had experienced workplace discrimination with the last year alone; and that gay and bisexual men earn 27% less than their heterosexual male counterparts. American Psychological Association, Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective at p. 5 of 9, posted at 2528744&CFTOKEN=6672615. See also M.V. Lee Badgett, Ph.D., Vulnerability in the Workplace: Evidence of Anti-Gay Discrimination in the Workplace, 2 Angles 1 (Sept. 1997) (analyzing survey data and reporting that majority of gay employee respondents feared discrimination or concealed their sexual orientation to try to avoid such discrimination), available at angles_21.pdf.

B. While overt bigotry based on race, sex or religion is now widely repudiated as unacceptable, anti-gay bias remains largely unconstrained in many work settings. For example, although racist and sexist jokes are widely accepted as off limits in the workplace, jokes targeting lesbians and gay men frequently still are tolerated. See, e.g., A. Friskopp & S. Silverstein, Straight Jobs, Gay Lives at 112 (1995).

C. Discrimination can be even more acute in certain areas, for example, teaching. J. Banning Jasiunas, Is ENDA the Answer: Can a “Separate but Equal” Federal Statute Adequately Protect Gays and Lesbians from Employment Discrimination?, 61 Ohio St. L.J. 1529, 1549 (2000) (“[t]eachers, as a group, have been subject to an inordinate amount of anti-gay discrimination in their work.”); see also Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 2488, 2497 (2003) (Scalia, J., dissenting) (asserting that “many” Americans do not want lesbians and gay men to serve as “teachers in their children’s schools”); Alan Yang, From Wrongs to Rights: Public Opinion on Lesbian and Gay Americans Moves Toward Equality, at 7, 10 (Policy Institute of the National Lesbian and Gay Task Force 1999) (while 83% of the population supported equal employment opportunities for those who are gay, only 54% felt gay people should be allowed to teach elementary school)

D. Despite such individual instances of discrimination, surveys consistently show overwhelming public opposition to discrimination based on sexual orientation. According to a May 2007 Gallup poll, 89% of Americans believe that gay men and lesbians should have equal rights in the workplace. A 2007 Peter D. Hart Research Associates survey indicated that 58% of respondents believe workplace protections also should extend to transgender employees.

II. Public Employees

A. Federal Constitutional Protections under Section 1983 – and the impact of Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996).

1. Equal Protection – Public employees are protected from irrational government discrimination under the Equal Protection Clause. See, e.g., Enquist v. Oregon Dep’t of Agriculture, 128 S.Ct. 2146, 2155 (. . . the Equal Protection Clause is implicated when government makes class-based decisions in the employment context, treating distinct groups of individuals categorically differently”) (2008). Consequently, government employees cannot be discriminated against based on sexual orientation: Beall v. London City School Dist. Bd. of Educ., 2006 WL 1582447 (S.D. Ohio June 8, 2006) (anti-gay discrimination was both objectively unreasonable and clearly proscribed so as to defeat qualified immunity); Miguel v. Guess, 112 Wn. App. 536, 51 P.3d 89 (2002) (lesbian nurse had equal protection claim under federal and state constitutions against public hospital and individual physician for adverse job actions taken due to her sexual orientation); Quinn v. Nassau County Police Dept. 53 F. Supp. 2d 347, 350 (E.D.N.Y. 1999) (gay police officer had equal protection claim against department and staff for condoning anti-gay harassment by coworkers and supervisors); Quinn v. Nassau County Police Dept., 75 F. Supp. 2d 74. 79 (E.D.N.Y. 1999) (officer subsequently awarded $380,000 in compensatory and punitive damages by jury and nearly $130,000 in attorneys’ fees by court); Emblen v. Port Authority of New York, 2002 U.S. Dist. LEXIS 5537 at *22-25 (S.D.N.Y. 2002) (non-gay police officer stated equal protection claim based on persistent anti-gay harassment by coworkers who incorrectly perceived him as gay); Lovell v. Comsewogue School Dist., 214 F. Supp. 2d 319 (E.D.N.Y. 2002) (lesbian teacher stated equal protection claim against school district and principal for failing to take action against anti-gay harassment of teacher by students); Glover v. Williamsburg Local School Bd., 20 F. Supp. 2d 1160 (S.D. Ohio 1998) (school district violated teacher’s equal protection rights when it fired him after he was seen holding hands with male partner at school holiday party); but see Schroeder v. Hamilton School Dist., 282 F.3d 946 (7th Cir. 2002) (no equal protection violation for not responding to anti-gay harassment in manner similar to racial or sexual harassment; teacher would need to show different treatment from that provided complaining heterosexuals, intentional discrimination or deliberate indifference to his complaints because of his homosexuality)

2. Freedom of Expression, Assembly, and Association

a. Weaver v. Nebo School Dist., 29 F. Supp. 2d 1279 (D. Utah 1998) (order that lesbian teacher not make comments about her “homosexual orientation or lifestyle” to students, parents or staff even outside classroom violated her First Amendment rights)

b. Plymouth County Education Association v. Plymouth-Canton Board of Education (American Arbitration Association) (school district violated academic and First Amendment freedoms when it ordered two gay teachers to dismantle displays commemorating Gay and Lesbian History Month) (described at cgi-bin/iowa/documents/ record?record=928)

c. But see Boring v. Buncombe County Bd. of Education, 98 F.3d 1474 (4th Cir 1996) (schools control curricular decisions, not teachers); Songer v. St. Helena Unified School Dist., 2000 U.S. App. LEXIS 18143 (9th Cir. 2000) (no protection for speech that does not involve matters of public concern)

3. Due Process

B. State Constitutional Protections

C. State statutory or executive order protections against sexual orientation discrimination and sometimes gender identity discrimination for public employees (in addition to the states listed in the section below with statutory protections for all employees): Alaska, Arizona, Colorado, Delaware, Indiana, Iowa, Kentucky, Michigan, Montana, Ohio, Pennsylvania, and Washington. (In May, 2007, Governor Strickland passed executive order 2007-10S prohibiting discrimination in public employment based on sexual orientation and gender identity.)

III. Statutory Protections Applicable to Private Employees

A. Federal Law

1. No sexual orientation employment discrimination statute

a. Title VII repeatedly has been held not to prohibit sexual orientation discrimination; see, e.g., Bibby v. Coca-Cola Bottling Co., 260 F.3d 257, 261 (3rd Cir. 2001) (collecting cases)

b. The pending Employment Non-Discrimination Act (ENDA)

2. Prohibitions on sexual harassment under Title VII. Oncale v. Sundowners Offshore Servs., Inc., 523 U.S. 75 (1998) (same-sex sexual harassment violates Title VII if it involves discrimination “because of ... sex”)

3. Prohibitions on sex discrimination, including discrimination based on gender stereotypes under Title VII

a. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc) (plurality opinion holding that, where gay employee established a hostile work environment based on conduct of a sexual nature by his male co-workers, he had a Title VII claim, and his sexual orientation was irrelevant; concurrence relying on gender stereotyping theory; general viability of theory accepted by dissent)

b. Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) (harassment of male employee because of perceptions of effeminacy violated Title VII); Doe v. City of Belleville, 119 F.3d 563, 594 (7th Cir. 1997), vacated on other grounds, 523 U.S. 1001 (1998) (“The fact that one motive was permissible does not exonerate the employer from liability under Title VII; the employee can still prevail so long as she shows that her sex played a motivating role in the employer's decision.”); Centola v. Potter, 183 F. Supp. 2d 403, 409-10 (D. Mass. 2002) (“Centola does not need to allege that he suffered discrimination on the basis of his sex alone or that sexual orientation played no part in his treatment. . . . Thus, if Centola can demonstrate that he was discriminated against "because of ... sex" as a result of sex stereotyping, the fact that he was also discriminated against on the basis of his sexual orientation has no legal significance under Title VII”); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001) (“In addition, once it has been shown that the harassment was motivated by the victim's sex, it is no defense that the harassment may have also been partially motivated by anti-gay or anti-lesbian animus. For example, had the plaintiff in Price Waterhouse been a lesbian, that fact would have provided the employer with no excuse for its decision to discriminate against her because she failed to conform to traditional feminine stereotypes.”).

c. Careful pleading essential to avoid some courts’ concerns that employees are trying to “bootstrap” sexual orientation protection onto Title VII. Employee must plead and prove that discrimination or harassment was based on gender and not just sexual orientation; see e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058 (7th Cir. 2003)

4. Protections for transgender employees

a. Case law prior to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) was unfavorable. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085, 1086 (7th Cir. 1984); see also Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661- 63 (9th Cir. 1977); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982).

b. Case law subsequent to Price-Waterhouse is considerably better. Smith v. City of Salem, Ohio, 378 F.3d 566, 572 (6th Cir. 2004); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (construing Title VII, in case brought under Gender-Motivated Violence Act, to prohibit targeting transsexual with feminine rather than traditionally masculine appearance and demeanor); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (applying Price Waterhouse and Title VII jurisprudence to an Equal Credit Opportunity Act claim and reinstating claim on behalf of biologically male plaintiff who alleged that he was denied an opportunity to apply for a loan because was dressed in "traditionally feminine attire"); Glenn v. Brumby, --- F.Supp.2d ----, 2009 WL 1849951, 106 Fair Empl.Prac.Cas. (BNA) 1355 (N.D.Ga. 2009); Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C.2008) (concluding that denying job to individual who disclosed his intent to transition to female constituted sex stereotyping and discrimination because of sex); Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex.2008) (holding that plaintiff could proceed to trial on impermissible sex stereotyping theory against employer who withdrew job offer and accused her of misrepresentation after learning of her transsexual status)

B. State Law

1. Statutory prohibitions on sexual orientation discrimination in 21 states and the District of Columbia: California, Connecticut, Colorado, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. These statutes generally prohibit both discrimination and harassment based on sexual orientation. See, e.g., Beach v. Yellow Freight Systems, 312 F.3d 391 (8th Cir. 2002) (affirming same-sex sexual harassment bench verdict under Minnesota Human Rights Act); Murray v. Oceanside Unified School Dist., 79 Cal. App. 4th 1338 (2000) (allowing teacher allegedly harassed by students and custodial staff to sue for harassment based on sexual orientation). Also, statutory prohibitions on sex and marital status discrimination, and state statutes prohibiting discrimination based on an employee’s lawful activities may provide protection to lesbian, gay, bisexual and transgender workers. See, e.g., Tanner v. Oregon Health Sciences University, 971 P.2d 435, 442 (Or. Ct. App. 1998) (state sex discrimination covered sexual orientation discrimination, prior to adoption of express prohibition on sexual orientation discrimination); Colo. Rev. Stat. § 24-34-402.5 (forbidding discrimination based on employee’s “lawful activities”). Additionally, there may be executive orders or state statutes that specifically protect public employees, such as in Alaska, Arizona, Delaware, Indiana, Iowa, Kentucky, Michigan, Montana, Ohio, Pennsylvania, and Washington.

2. Statutory prohibitions on gender identity discrimination for all employees in California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Washington, and Rhode Island (and by court or administrative rulings in Connecticut, Florida, Hawaii, Massachusetts, New Jersey, New York, and Vermont) and for public employees in Kentucky, Ohio, Iowa, and Pennsylvania, as well as perhaps others. In addition, even though “transsexualism” is specifically excluded as a disability under the Americans with Disabilities Act, several courts and agencies have held that their disability antidiscrimination laws protect transgender employees. See Lie v. Sky Publishing Corp., 15 Mass L. Rep. 412 (Mass. Super. Ct. 2002); Enriquez v. W. Jersey Health Sys., 777 A.2d 365 (N.J. Super. Ct.), cert. denied, 785 A.2d 439 (N.J. 2001)

3. State Codes of Professional Conduct and Ethics governing judges, teachers, lawyers, doctors, and other professionals. See generally Ross v. Springfield School Dist. No. 19, 657 P.2d 188 (Or. 1982) (statute providing that permanent teacher cold be fired only for certain reasons, including immorality, possibly protected teacher who engaged in sex at adult bookstore)

4. Collective bargaining agreements increasingly include provisions prohibiting discrimination based on sexual orientation or gender identity and expression. Even if not, many have provisions permitting termination of at least some workers only for good cause. Discrimination or termination in violation of these provisions may give rise to remedies under the collective bargaining agreement. See O’Hara v. State, 642 N.W. 3d 303, 312 (Iowa 2002) (public employee has right to sue state for sexual orientation discrimination in violation of collective bargaining agreement). On the other hand, a collective bargaining agreement may preempt other contract and interference with contract claims. See Oberkramer v. IBEW-NECA Service Center, Inc., 151 F.3d 752, 756-57 (8th Cir. 1998).

5. Breach of contract claims can be based on written agreements with a “for cause” requirement as well as written or oral agreements for a set term where an agreement not to terminate except for good cause may be implied. In some states, a breach of contract claim may be able to be brought under a nondiscrimination policy in an employee handbook, even if there is a disclaimer of contractual intent in the handbook.

6. Tort claims – Breach of the covenant of good faith and fair dealing; intentional infliction of emotional distress (outrage); negligent infliction of emotional distress; defamation; interference with prospective business advantage; see e.g., See, e.g., Grant v. Soloflex, Inc., 2005 WL 477995, *17 (D. Or. 2005) (suit by lesbian employee) (“A managing officer of a corporation, including one with the authority to hire and fire, is subject to liability for intentional interference in the same way as any other corporate employee if the officer acts without any purpose to serve the employer but solely with improper motives or purposes.”); Grimm v. U.S. West Communications, 644 N.W.2d 8 (Iowa 2002) (allowing lesbian employee to pursue claim for intentional interference with employment contract against supervisor who was alleged to have discharged her maliciously and for improper purpose); Weber v. Community Teamwork, Inc., 752 N.E.2d 700, 716 (Mass. 2001) (party alleging interference with contract and sexual orientation discrimination could prevail if she could demonstrate discriminatory animus); Waddell v. State, 1998 WL 27292, *2 (Minn. Ct. App. 1998) (recognizing tortuous interference with contract claim by gay employee and holding that official was not immune because such claim necessarily involved malice); Marino v. Louisiana State University Bd. of Sup’rs, 1997 WL 358141, *5 (E.D. La. 1997) (recognizing tortuous interference claim by assistant professor who was constructively discharged after her statements supporting thesis on gay studies); Whelan v. Albertson’s Inc., 879 P.2d 888, 891-92 (Or. Ct. App. 1994) (recognizing claim for interference with contract against employee who made gay employee’s performance so onerous that company had to transfer him).

7. Workers’ Compensation Claims. A claim for harassment on the job resulting in injury (including psychological injury) may be cognizable through worker’s compensation. Dickert v. Metropolitan Life Ins. Co., 428 S.E.2d 700 (S.C. 1993).

8. Wrongful Termination in Violation of Public Policy

a. An employee may be able to sue for wrongful termination without resort to the procedures and rules present in an antidiscrimination statute. Compare Leibert v. Transworld Systems, Inc., 32 Cal. App. 4th 1693, 1703-04, 39 Cal.Rptr.2d 65, 70-71 (1995) (plaintiff could pursue claim for wrongful discharge in violation of public policy independent of claim based on statute covering sexual orientation); with Rood v. Canteen Corp., 1996 WL 548174, *3 (Conn.Super. 1996) (remedy in statute was exclusive remedy); M.A.E. v. Doe & Roe, 388 Pa. Super. 589, 590, 566 A.2d 285, 286 (employee’s remedy lay exclusively with the Pennsylvania Human Relations Commission) (1989).

b. Some courts have rejected claims by employees to use other statutes or ordinances to establish a public policy against LGBT discrimination. Miguel v. Guess, 112 Wn. App. 536, 557-58, 51 P.3d 89, 99 (2002) (rejecting public policy termination claim by plaintiff invoking state’s hate crimes law and laws regarding public employees); Greenwood v. Taft, Stettinius & Hollister, 105 Ohio App.3d 295, 300, 663 N.E.2d 1030, 1033 (1995) (local ordinance did not establish state public policy; case was in Cincinnati, which had an ordinance); Webb v. Puget Sound Broadcasting Co., 1998 WL 898788, *3 (Wash.App. Div. 1 1998) (same; plaintiff invoked local ordinances); see also Madsen v. Erwin, 395 Mass. 715, 731-32, 481 N.E.2d 1160, 1169-70 (1985) (absence in state antidiscrimination statute [at the time] of “sexual orientation” precluded public policy termination claim).

C. Local Ordinances. See Summary of States, Cities, and Counties Which Prohibit Discrimination Based on Sexual Orientation, available at cgi-bin/iowa/documents /record?record= 217, for a partial list

IV. Emerging Issues

A. Employer’s ability to promote a harassment-free workplace. Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000) (removal of anti-gay materials from school bulletin board did not violate teacher’s First Amendment rights; school was entitled to promote policy of tolerance without constraint of viewpoint neutrality); see also Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004) (employee disciplined for posting Biblical passages condemning homosexuality in his cubicle did not have religious discrimination claim; accommodating his views would create undue hardship on employer’s efforts to create diverse, non-discriminatory workplace); Cruzan v. Special School Dist, # 1, 294 F.3d 981, 984 (8th Cir. 2002) (employer’s permission for MTF transgender person to use the woman’s restroom resulted neither in an “adverse employment action” against a female coworker nor in a hostile working environment); Bruff v. North Mississippi Health Services, 244 F.3d 495 (5th Cir. 2001) (ruling that a hospital did not violate Title VII by terminating a therapist who refused on religious grounds to counsel employees needing assistance with gay or extra-marital relationships and refused to accept a reasonable transfer); Shelton v. University of Medicine & Dentistry of New Jersey, 223 F.3d 220, 228 (3d Cir. 2000) (holding that state hospital had offered adequate accommodation to Pentacostal nurse who refused to participate in pregnancy termination by offering her a transfer to a department in which such procedures are not performed; nurse who refused to perform full range of job duties and also refused reasonable transfer could be fired); Bodett v. Coxcom, Inc., 366 F.2d 736 (9th Cir. 2004) (upholding dismissal of Title VII religious discrimination claim brought by Christian fundamentalist supervisor against former employer after being fired for expressing inappropriately her religiously-based disapproval of her subordinate's lesbian sexual orientation, in violation of company anti-harassment policy); but see Buonanno v. AT&T Broadband, LLC, 313 F.Supp.2d 1069, 1081-83 (D. Colo. 2004) (granting religious fundamentalist nearly $150,000 in damages for wrongful termination in violation of Title VII when employee agreed to treat his coworkers respectfully but refused to adhere to ambiguous company diversity policy that required employees to "value" each others' differences and reasonably could be understood to require "valuing" or "approving" of particular differences with which an employee objects on religious grounds); Saxe v. State College Area School Dist. 240 F.3d 200 (3rd Cir. 2001) (non-vulgar, non-sponsored student speech that would not cause substantial disruption or interference with the work of the school or rights of others cannot be prohibited).

B. Dress codes: Dress codes that are unreasonable or that impose unequal burdens on men and women are impermissible under Title VII. (See, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006).) The best practice, if there is a dress code that differentiates based on sex, is to allow each employee to comply with the dress code provisions that are consistent with the employee’s gender identity.

C. Transgender employees – transitions, bathrooms, and dressing areas. Compare Cruzan v. Special School Dist, # 1, 294 F.3d 981, 984 (8th Cir. 2002) (employer’s permission for MTF transgender person to use the woman’s restroom resulted neither in an “adverse employment action” against a female coworker nor in a hostile working environment) with Goins v. West Group, 635 N.W.2d 717, 723 (Minn. 2001) (Minnesota’s antidiscrimination statute covering gender identity “neither requires nor prohibits restroom designation according to self-image of gender or according to biological gender.”)

1. Employers are legally required to provide employees with access to bathrooms at work. The best practice is to allow employees to use either single-person bathrooms or the bathroom that is considered appropriate to those with the employee’s gender identity. If other employees object, provisions can be made for them to use other bathrooms rather than singling out the transgender employee for what may be less convenient accommodations. In shared dressing areas, the best practice is to provide private showering and dressing cubicles for those employees desiring physical privacy.

2. Employees should be called by the name they designate with the pronouns they prefer and changes of name and sex designation should be recognized. An employee who is transitioning from one sex designation at work to another may prefer to inform other employees of the change him or herself. If the employee desires, however, it can be helpful to remind other staff about nondiscrimination policies and/or to conduct training at the time an employee transitions from one sex designation to another, if this is a new experience for the particular work site.

V. Preventative measures and best practices for employers

A. Non-discrimination and anti-harassment policies

B. Diversity, non-discrimination, and anti-harassment training

C. Clear reporting procedures and effective dispute resolution systems

D. Employee groups and other signs of support for diversity

|[pic] |Summary of Ohio’s Proposed non-discrimination law |

| |(passed 9-15-09 by 53 to 42 vote in the Ohio House) |

| | |

| |Ohio Legislative Service Commission |

| |[pic] |

| |Bill Analysis |

H.B. 176

128th General Assembly

Reps.     Stewart and McGregor, Skindell, Celeste, Letson, Garland, Blair, Foley, Yuko, Heard, S. Williams, Harris, Harwood, Carney, Chandler, Boyd, Hagan, Ujvagi, Koziura, Winburn, Luckie, B. Williams, Mallory, Sykes, Yates, Brown, Driehaus

BILL SUMMARY

• Prohibits discriminatory practices on the basis of "sexual orientation" and "gender identity and expression" under many of the Ohio Civil Rights Commission (OCRC) Law's existing prohibitions against various unlawful discriminatory practices.

• Provides that the Ohio Civil Rights Commission must exercise certain of its existing powers and duties also with respect to discrimination on the basis of sexual orientation and gender identity expression.

• Provides that nothing in the OCRC Law's provisions that govern Commission hearings on alleged unlawful discriminatory practices may be construed to authorize or require any person to observe the proportion that persons of any sexual orientation or gender identity expression or persons of any of current law's covered characteristics bear to the total population or in accordance with any criterion other than the individual qualifications of an applicant for employment or membership.

• Adds sexual orientation and gender identity expression to the list of covered characteristics that are specified in various provisions of current law that prohibit persons or entities from discriminating on the basis of most of the covered characteristics.

• Adds sexual orientation and gender identity expression to the list of covered characteristics that are specified in various provisions of current law that require certain functions or duties to be performed without discrimination, require certain documents to include statements pertaining to nondiscrimination, or pertain to discrimination on the basis of most of the covered characteristics.

CONTENT AND OPERATION

Ohio Civil Rights Commission Law Existing law

The Ohio Civil Rights Commission (OCRC) Law currently prohibits various unlawful discriminatory practices by the following:  (1) employers, employment agencies, personnel placement services, labor organizations, joint labor-management committees, and persons seeking employment, in employment or employment-related membership situations, (2) proprietors, employees, keepers, and managers of places of public accommodation in making the full enjoyment of these places available to the public, (3) any person in transactions involving housing accommodations, such as the sale or rental of housing accommodations or the extension of financial assistance for the purchase of those accommodations, (4) any creditor in the extension of credit for other types of purchases or transactions, (5) credit reporting agencies in maintaining information, and (6) educational institutions in connection with admission, assignment to programs or housing, awarding of grades, services, or financial aid, or permitting participation in activities with respect to their treatment of individuals with a disability (R.C. 4112.02 and 4112.021; R.C. 4112.022--not in the bill). 

Existing law defines "unlawful discriminatory practice" as any act prohibited by R.C. 4112.02, 4112.021, or 4112.022 (R.C. 4112.01(A)(8)).  These unlawful discriminatory practices include, but are not limited to, discrimination on the basis of the race, color, religion, age, sex, familial status, marital status, military status, national origin, ancestry, or disability (hereafter, "covered characteristics") of an employee; an applicant for employment, for membership, for the purchase, lease, or financing of housing accommodations, or for credit; a person seeking access to a place of public accommodation; or any appropriate person as specified in the laws generally described in (1) to (6), above  (R.C. 4112.02(A) to (H) and 4112.021).[1]

Changes proposed by the bill

The bill adds sexual orientation and gender identity and expression to the covered characteristics that can be the basis for unlawful discriminatory practices under the prohibitions of the existing OCRC Law (R.C. 4112.02(A) to (H), and 4112.021).  The bill defines "sexual orientation" as heterosexuality, homosexuality, or bisexuality whether actual or perceived (R.C. 4112.01(A)(23)) and "gender identity and expression" as the gender-related identity, appearance, or expression of an individual regardless of the individual's assigned sex at birth (R.C. 4112.01(A)(24)).[2]

Current law defines "employer" for purposes of the OCRC Law to include the state, any political subdivision, any person employing four or more persons within Ohio, and any person acting directly and indirectly in the interests of an employer.  The bill modifies this definition so that for purposes of discrimination based upon sexual orientation and gender identity expression, "employer" includes the state, any political subdivision, any person employing 15 or more persons within Ohio, and any person acting directly and indirectly in the interests of an employer.  (R.C. 4112.01(A)(2).)

The bill further provides that neither the antidiscrimination provisions of current law nor the bill's new provisions prohibit any religious association, corporation, or society that is not organized for private profit, or any institution organized for educational purposes that is operated, supervised, or controlled by such a religious association, corporation, or society, from doing either of the following:  (1) limiting admission or giving preference to persons of the same religion or denomination or (2) in matters related to sexual orientation or gender identity and expression, taking any action with respect to education, employment, housing, and real property, or use of facilities.  The bill provides, however, that this exception does not apply to secular business activities in which the religious association, corporation, or society engages if the conduct of those activities is unrelated to the religious and educational purposes for which the association, corporation, or society is organized.  (R.C. 4112.02(R).)

The bill also adds sexual orientation and gender identity expression to the covered characteristics in the provisions of existing law that require the Ohio Civil Rights Commission to do all of the following (R.C. 4112.04(A)(7), (9), and (10)):

(1) Make periodic surveys of the existence and effect of discrimination on the basis of most of the covered characteristics on the enjoyment of civil rights by persons within Ohio;

(2) Prepare a comprehensive educational program, in cooperation with the State Department of Education, for Ohio public school students and all other Ohio residents that is designed to eliminate prejudice on the basis of most of the covered characteristics, to further good will among the groups with the covered characteristics, and to emphasize the origin of prejudice against those groups, its harmful effects, and its incompatibility with American principles of equality and fair play;

(3) Receive progress reports from state agencies and entities and from political subdivisions and their agencies and entities regarding:  (a) affirmative action programs for the employment of persons against whom discrimination is prohibited by the OCRC Law, (b) affirmative action programs for the employment of persons against whom discrimination is prohibited by the OCRC Law, or (c) affirmative housing accommodations programs developed to eliminate or reduce an imbalance of a covered characteristic.

Sexual orientation and gender identity expression is also added to the covered characteristics in current law's provisions (1) that authorize the Commission itself, or authorize the Commission to empower local and statewide advisory agencies and conciliation councils the Commission creates, to study the problems of discrimination on the basis of most of the covered characteristics in all or specific fields of human relationships and (2) that authorize the Commission to issue any publications and the results of investigations and research that in its judgment will tend to promote good will and minimize or eliminate discrimination on the basis of most of the covered characteristics (R.C. 4112.04(B)(4)(a) and (5)).

The bill provides that nothing in the OCRC Law's provisions that govern Commission hearings on alleged unlawful discriminatory practices may be construed to authorize or require any person to observe the proportion that persons of any sexual orientation or gender identity expression or persons of any of current law's covered characteristics bear to the total population or in accordance with any criterion other than the individual qualifications of an applicant for employment or membership.  And, nothing in the OCRC Law may be considered as repealing any provision of Ohio law relating to discrimination because of sexual orientation or gender identity expression or any covered characteristic.  Similar provisions exist in current law relative to discrimination on the basis of most of the covered characteristics.  (R.C. 4112.05(E) and 4112.08.)

Yeas - 52

| | | | |

|Belcher |Bolon |Book |Boyd |

|Brown |Carney |Celeste |Chandler |

|DeBose |DeGeeter |Dodd |Domenick |

|Driehaus |Dyer |Foley |Garland |

|Garrison |Gerberry |Goyal |Hagan |

|Harris |Harwood |Heard |Hite |

|Koziura |Letson |Luckie |Lundy |

|Mallory |Moran |Murray |Newcomb |

|Okey |Otterman |Phillips |Pillich |

|Pryor |Sayre |Schneider |Skindell |

|Slesnick |Stewart |Sykes |Szollosi |

|Ujvagi |Weddington |Williams B. |Williams S. |

|Winburn |Yates |Yuko |Budish |

| | | | |

Nays - 43

| | | | |

|Adams J. |Adams R. |Amstutz |Bacon |

|Baker |Balderson |Batchelder |Blair |

|Blessing |Bubp |Burke |Coley |

|Combs |Daniels |Derickson |Dolan |

|Evans |Gardner |Goodwin |Grossman |

|Hackett |Hall |Hottinger |Huffman |

|Jordan |Lehner |Maag |Mandel |

|Martin |McClain |McGregor |Mecklenborg |

|Morgan |Oelslager |Ruhl |Sears |

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[1] It should be noted that not every covered characteristic listed in this sentence is necessarily listed in a prohibition in the OCRC Law.  For example, "familial status" is listed consistently in R.C. 4112.02, but not in R.C. 4112.021 (creditors and credit reporting agencies) where "marital status" is listed.

[2] This definition of "sexual orientation" and "gender identity expression" apply throughout the bill.

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[1] See generally Martin Duberman, Stonewall (1984); Dick Leitsch, Police Raid on N.Y. Club Sets off First Gay Riot, The Advocate , Sept. 1969, at 21.

[2] Kay Tobin & Randy Wicker, The Gay Crusaders 9 (1975).

[3] See, e.g., Americans with Disabilities Act, 42 U.S.C.A. §12112(a)(1990)(prohibiting discrimination against disabled people); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §2000e (1991)(prohibiting discrimination “because of an individual’s race, color, religion, sex, or national origin”).

[4] Differential and usually disadvantageous treatment of sexual minorities occurs in contract, criminal, education, entitlement, estates and trusts, family, federal constitutional, health care, immigration, labor, military, private employment, property (real and personal), public employment, state constitutional, tax, and tort law See generally William D. Eskridge, Jr. and Nan D. Hunter, Sexuality, Gender, and the Law (2d ed. 2004).

[5] Nancy D. Polikoff, Raising Children: Lesbian and Gay Parents Face the Public and the Courts (hereinafter Polikoff I), in Creating Change, Sexuality, Public Policy, and Civil Rights 305, 334 (John D’Emilio et al. eds. 2000)(hereinafter Creating Change).

[6] Rhonda R. Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799 (1978-1979)(hereinafter Rivera I).

[7] Id. at 806-811. See also Patricia A. Cain, Rainbow Rights, The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement 103-128 (2000).

[8] Rivera I, supra note 4, at 837-855.

[9] Id. at 855-860. A businessperson’s ability to obtaining a liquor license was also jeopardized by employing or serving homosexuals. Id. at 913-924; Ira Henry Freeman, Café Drive Turns to Homosexuals, N.Y. Times, Dec. 1, 1960, at 30 (reporting on intensified police investigations into liquor establishments).

[10] Rivera I, supra note 4, at 860-874.

[11] Id at 805-874.

[12] In Schlegel v. United States, 416 F.2d 1372, 1378 (Ct. Cl. 1969), for example, the court upheld plaintiff’s dismissal from employment on the grounds that a homosexual’s presence would undermine morale and efficiency of workplace because fellow employees know “that a homosexual act is immoral, indecent, lewd, and obscene.” In Gaylord v. Tacoma School District No. 10, 559 P.2d 1340, 1345-46 (Wash. 1977), the court affirmed a school board’s termination of a teacher with 12 years of excellent evaluations because “homosexuality is widely condemned as immoral and was so condemned during biblical times;” because the teacher has indicated no intent to change; and because he had “made a voluntary choice for which he must be held morally responsible.” See Rivera I, supra note 32, at 820 (discussing Schlegel); Id at 871-874 (discussing Gaylord). These conclusions reflect this society’s readiness to conflate homosexual conduct and homosexual identity.

[13] Rivera I, supra note 4, at 874-908.

[14] Id. at 874-878.

[15] Id. at 879-883.

[16] Id. at 883-904.

[17] Anne T. Payne, The Law and the Problem Parent: Custody and Parental Rights of Homosexual, Mentally Retarded, Mentally Ill and Incarcerated Parents, 16 J. Family Law 797, 818 (1977-1978).

[18] Rivera I, supra note 4, at 904. See also Payne, supra note 15, at 799 (concluding that courts deemed homosexual parents per se unfit more often than mentally compromised and imprisoned parents).

[19] Dunlap made many contributions to the equality movement for sexual minorities including the founding of the Equal Rights Advocates law firm. Cain, supra note 5, at 65-67.

[20] Mary Dunlap, The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy, 30 Hastings L.J. 1131, 1131 (1978-1979).

[21] Id. at 1133.

[22] Id. at 1135.

[23] Id. Adherence to the binary view of sex results in intersexed people being subjected to surgery shortly after birth to conform ambiguous genitalia to set male or female biological standards. Such premature gender assignment may have disastrous consequences later in life when the surgically constructed gender conflicts with the person’s internal anatomy and gender identity. See Deborah Rudacille, The Riddle of Gender: Science, Activism and Transgender Rights 102-140 (2005)(chronicling transgender individuals’ struggle for equality). Among other things, this dissonance may result in being labeled transgender and/or gay, lesbian or bisexual in adulthood.

[24] Romer v. Evans, 517 U.S. 620, 634 (1996).

[25] Lawrence v. Texas, 539 U.S. 558 (2003).

[26] See National Gay & Lesbian Task Force map at

[27] Detailed state-by-state information on laws governing same-sex relationships is available at Human Rights Campaign’s website at .

[28] Mark Strasser, Rebellion in the Eleventh Circuit: on Lawrence, Lofton, and the Best Interests of Children, 40 Tulsa L. Rev. 421 (2005); Christopher Carnahan, Inscribing Lesbian and Gay Identities: How Judicial Imaginations Intertwine with Best Interests of Children, 11 Cardoza Women’s L. J. 1 (2004); Polikoff I, supra note 3, at 305. See also, Nancy D. Polikoff, Lesbian and Gay Parenting: the Last Thirty Years, 66 Mont. L. Rev. 51 (2005)(hereinafter Polikoff II).

[29] Visit .

[30] The current status of adoption laws are provided by Lambda Legal Defense and Education Fund (LLDEF)(last visited May 1, 2005) at ................
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