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January 06, 2011 Articles

Numbers Tell a Story: Recent Litigation in LGBT Issues

By Larry D. Smith

We are a profession intrigued by numbers. Some are dry but necessary—accounting debits and credits, for example. Numbers can, of course, have great weight and urgency. For example, numbers tell the long journey the lesbian, gay, bisexual, and transgendered (gay) community has traveled to secure liberties guaranteed to all citizens.

According to the U.S. General Accounting Office, there are 1,138 federal statutory provisions classified in the U.S. Code in which marital status is a factor in determining or receiving benefits, rights, and privileges. U.S. General Accounting Office Report, January 23, 2004, at 1. The topic of gay marriage has become a political football. Devoid of the rhetoric, logic alone cannot explain more than 1,000 government benefits available only to married citizens while the government simultaneously denies select citizens the ability to marry.

In his landmark ruling in Perry v. Schwarzenegger, 704 F. Supp. 921 (N.D. Cal., August 4, 2010), U.S. District Judge Vaughn R. Walker declared that Proposition 8, California's one-man, one-woman marriage definition, violated both the Due Process and Equal Protection clauses of the Fourteenth Amendment to the U.S. Constitution. (The ruling does not invalidate the Defense of Marriage Act, 28 U.S.C. § 1738(c) or confer onto gay citizens any of the 1,138 federal benefits mentioned above.) Judge Walker's opinion was immediately hailed a model of jurisprudence. With detailed findings and exacting analysis, the court, in its 136-page opinion, dissected the evidence before it and the law behind it. Part history lesson, part law school classroom lecture, Judge Walker guided us through some highs and lows in our nation's journey toward equality, including a reminder that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (J. Harlan, dissenting). (Judge Walker's judgment has been questioned because of unconfirmed rumors that he is gay—as though, if true, a heterosexual judge would be in a better position to analyze the Constitution or have less interest in a definition of marriage.)

Judge Walker analyzed the plaintiffs' due process claim under a strict scrutiny analysis because he found, and the parties agreed, that the right to marry is a fundamental one. Id., noting "[t]hat the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'" 704 F. Supp. 2d. 921, 995 (citations omitted).

With regard to the plaintiffs' equal protection claim, the trial court concluded:

The Equal Protection Clause renders Proposition 8 unconstitutional under any standard or review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review. Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. 704 F. Supp. 2d 921, 997.

Judge Walker's detailed findings (See, e.g., Findings of Fact 78–79 at 704 F. Supp. 2d 921, 986–990) may help support what appears to be a leaning by the Supreme Court to apply a more rigorous standard of review when sexual orientation is involved. For example, in Christian Legal Society v. Leo Martinez, 130 S. Ct. 2971 (June 28, 2010),[1] a case decided after closing arguments in Perry but before Judge Walker released his opinion, the court appeared to acknowledge gay persons as a class:

CLS contends that it does not exclude individuals because of sexual orientation, but rather "on the basis of a conjunction of conduct and the belief that the conduct is wrong." Brief for Petitioner 35-36 (emphasis deleted). Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U.S. 558, 575, 123 S. Ct. 2472, 156 L.Ed.2d 508 (2003) ("When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination." (emphasis added)); id., at 583, 123 S. Ct. 2472 (O'Connor, J., concurring in judgment) ("While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.") (citations omitted). Id. at 2990.

Additional support for heightened scrutiny may be found in the concurring opinion of Justice Stevens who, in footnote 1 of his opinion, likens sexual orientation to religion (which is subjected to strict scrutiny analysis[2]):

A person's religion often simultaneously constitutes or informs a status, an identity, a set of beliefs and practices, and much else besides (So does sexual orientation for that matter, see ante, at 2989–2990, notwithstanding the dissent's view that a rule excluding those who engage in "unrepentant homosexual conduct," App. 226, does not discriminate on the basis of status or identity, post, at 3012). Id. at footnote 1.

As with other parts of his opinion, Judge Walker has built a strong factual foundation upon which the Supreme Court can build if it chooses.

Courts may be guided by principle, but cases are decided based on evidence. In Perry, not a single qualified expert testified in support of Proposition 8, while nine testified against it. Similarly, while zero lay witnesses testified in support of Proposition 8, eight appeared against it. Indeed, with the exception of California's attorney general, who conceded that it was unconstitutional, the government defendants refused to defend Proposition 8.

Judge Walker's decision was stayed by the Ninth Circuit, which expedited review and further ordered, "In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing." No. 3:09-cv-02292-VRW, 2010 WL.

The decision has sparked national discussion about the role of judges, marriage, states' rights, and the ability of a majority of citizens to limit the rights of minorities.[3] Thus, even if the Ninth Circuit finds a lack of standing or overturns the trial court, Judge Walker's well-reasoned opinion has changed the conversation in America about this important topic.

There were approximately 19,229 children in foster homes in Florida at the end of 2009, when an appellate court was considering the constitutionality of Florida's ban on adoption by gay parents. Codified at Florida Statutes § 63.042(3), the ban provides that "no person eligible to adopt under this statute may adopt if that person is a homosexual." The only blanket ban in the nation, it was passed hastily in 1977 partly in reaction to efforts by the singer and anti-gay crusader Anita Bryant.

In Florida Dept. of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G., 2010 WL 3655782 (Fla. App. 3 Dist., Sept. 22, 2010), the trial court was presented with harsh reality:

The children arrived with medical problems and other needs. X.X.G. arrived wearing a dirty adult-sized t-shirt and sneakers four sizes too small. Both children were suffering from ringworm and the four-month-old suffered from an untreated ear infection. X.X.G., the four-year-old, did not speak and his main concern was changing, feeding and caring for his baby brother. Id. at *1.

According to the court, the children thrived during the time they were in foster care. "It is clear to this Court that [F.G.] is an exceptional parent to [X.X.G. and N.R.G] who have healed in his care and are now thriving." Id. at *1. The parties stipulated that the prospective father was a fit parent and that adoption was in the best interest of the children. However, the nonprofit agency responsible for monitoring the children during their three years of foster care recommended against adoption because the statute barred homosexuals from adopting. The Department of Children and Families refused to allow the adoption but acknowledged "that it would have approved the application had it not been for the statute." Id. at *1. The incongruity of a system that allowed gay foster parents to care for the sickest, least-wanted children over long periods of time but ignored the natural bond developed when looking at permanent placement was not lost on the courts.

Florida's Third District Court of Appeal upheld the trial court's decision that the ban could not pass even a rational basis test[4] and that it violated the Equal Protection of the Florida Constitution.[5] The department decided not to appeal the decision.

In the Military
Thirteen thousand twenty-three armed service personnel have been discharged under the Don't Ask, Don't Tell (DADT) policy since 1994. Log Cabin Republicans v. United States, 2010 WL 3526272 at *29 (C.D. Cal., Oct. 12, 2010) (at pp. 56–59). In 2004, the Log Cabin Republicans, an organization composed of gay Republicans, challenged the constitutionality of 10 U.S.C. § 654, also known as DADT. On September 9, 2010,[6] U.S. District Judge Virginia A. Phillips applied an intermediate level of review to DADT (see Witt v. Department of Air Force, 527 F. 3d 806 (9th Cir. 2008) (subjecting DADT to heightened scrutiny)) and found that it violated the First and Fifth Amendments to the U.S. Constitution. See, 3526272 at *25, *81. Noting the deference that courts are required to show the military, Judge Phillips nonetheless found that the "sweeping reach" of DADT went beyond that which might be necessary to protect the substantial government interest at stake. See 3526272 at *44. She also found that the policy violated gay service personnel's right of association and substantive due process rights.

Judge Phillips later entered a worldwide injunction against the military's enforcement of DADT, a move hailed by proponents of the repeal, claiming that the order "reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country." However, the injunction was stayed by the Ninth Circuit.

Whether the Log Cabin Republicans will be found to have requisite standing to challenge the policy and whether the appellate courts will uphold Judge Phillips's decision will keep this issue in the public spotlight for months or years to come.

[Editor's Note: On December 22, 2010, after this article was submitted for publication, President Obama signed the Don't Ask, Don't Tell Repeal Act of 2010 (Public Law No. 111-321). According to White House press releases, the repeal of DADT will go into effect after the president, the secretary of defense, and the chairman of the joint chiefs of staff certify that the military has completed necessary preparations for the transition.]

Gay Teen Suicide
Any number of gay teen suicides due to bullying and intolerance is unacceptable. Statistics suggest that gay teens are three to five times more likely to commit suicide than their straight counterparts. Developing a thick skin is a life skill for each of us, but for many gay teens who are hurt and harassed, it can mean the difference between life and death.

In the past few weeks, the faces of young suicide victims have replaced statistics with a deep sense of loss for children who will never grow up. Some have called the recent escalation in suicides an epidemic, prompting U.S. Secretary of Education Arne Duncan to release the following statement:

This week, we sadly lost two young men who took their own lives for one unacceptable reason: they were being bullied and harassed because they were openly gay or believed to be gay. These unnecessary tragedies come on the heels of at least three other young people taking their own lives because the trauma of being bullied and harassed for their actual or perceived sexual orientation was too much to bear.

In response to this "crisis," President Barrack Obama, Speaker of the House Nancy Pelosi, and Secretary of State Hillary Clinton, as well as prominent musicians, artists, and everyday folks have released public service messages assuring gay youth that "It gets better," urging them to avoid the temptation to take their lives.

Some grieving families have filed private lawsuits against bullies or those in charge of the environment where the bullying took place. The Department of Justice has intervened in some, claiming that bullying based on sexual orientation amounts to violations of Title IX.

Lawyers play a unique and important role in resolving issues of our day. This is not new; 24 of the 56 signers of the Declaration of Independence were lawyers. In that tradition, we do well to remember the words of Justice Anthony McLeod Kennedy:

Had those who drew and ratified the due process clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew 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. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence v. Texas, 539 U.S. 558, 578–579 (2003).

As members of the ABA, a mutual, important, overriding goal is "Defending Liberty, Pursuing Justice." Outside the courtroom context, lawyers can assume leadership roles in making positive change. Through education, civil voice, and peaceful action, we can change these numbers. The most important number for change is one—one person. You.

Keywords: litigation, LGBT, numbers, statistics


  1. In that case, a student religious society—the Christian Legal Society (CLS)—at Hastings College of Law brought an action under 42 U.S. C. § 1983 on the basis that it was denied official recognition because the group's bylaws did not comply with Hastings's open-access policy when it excluded students based on religion and sexual orientation. This, CLS argued, constituted a violation of the members' First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion.

  2. "A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance 'interests of the highest order' and must be narrowly tailored in pursuit of those interests. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) citing McDonald v. Paty, 435 U.S. 618, 628 (1978) quoting Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1972)."

  3. On August 10, 2010, the American Bar Association's (ABA) House of Delegates passed a Recommendation urging all state, territorial and tribal governments to "eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry."

  4. The parties stipulated in the trial court that the case did not involve a fundamental right or suspect class; therefore, the appellate court considered the appeal only under a rational test standard.

  5. The Court noted that a federal constitutional challenge to this statute was rejected in Lofton v. Secretary of Department of Children & Family Services, 358 F. 3d 804 (11th Cir. 2004), rehearing en banc denied 377 F. 3d 1275 (11th Cir. 2004).

  6. The Court's original memorandum opinion is dated September 9, 2010, but the official opinion, including injunctive relief, can be found on Westlaw and bears a date of October 12, 2010.

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