LGBT Law 101

February 21, 2008Duke Law News

Duke Law students got a primer on the complex issues facing lesbian, gay, bisexual, and transgender (LGBT) individuals and families on Feb. 18, during a lunchtime event sponsored by OUTlaw.

Federal protections against discrimination seem limited
Constitutional protection against discrimination is limited at this time for LGBT individuals, said Erwin Chemerinsky, Duke’s Alston & Bird Professor of Law and Political Science; to date the Supreme Court has only expressly applied relatively minimal “rational basis review” to laws alleged to be discriminatory under the 14th Amendment’s Equal Protection Clause.

Under rational basis review, a law will be upheld so long as the government action is “rationally related to legitimate government purposes,” Chemerinsky explained. “Any conceivable legitimate purpose is enough, and the means chosen just have to be ‘reasonable.’”

The Court applied this standard in its 1996 ruling in Rohmer v. Evans, which struck down a Colorado law that repealed all state laws protecting gays and lesbians from discrimination and prohibited the enactment of any new ones. Writing for the majority, Justice Anthony Kennedy said that the law kept gays and lesbians from using the political process to gain protection ― through statutes ― as other groups can, making the constitutional amendment process their only route to protection, said Chemerinsky. “Justice Kennedy said the only reason for singling out a group and keeping them from using the political process is animus against the group. He said that animus is never a legitimate government purpose.”

Justice Kennedy also wrote for the majority in Lawrence v. Texas, the 2003 ruling that struck down a Texas law prohibiting so-called “deviant” sexual activity and applied only to same-sex sexual activity. While praising Kennedy’s unequivocal statement that the right to privacy protects consenting adults in the bedroom and his condemnation of the stigmatizing effects of laws such as the one in question, Chemerinsky noted that the opinion never indicated the level of scrutiny applied to the law.

“Never does Kennedy say there is a fundamental right to strict scrutiny, nor does he say he is using rational basis review,” said Chemerinsky, adding that the level of scrutiny to be applied has been the key issue in litigation in the lower courts since Lawrence. “If it’s only rational basis review, it provides relatively little protection ― the reality is that the government almost always wins. Rohmer and Lawrence are terrific decisions, but they are of limited value, because as long as the review is only rational basis review, discriminatory laws will be upheld.”

Family law: Same-sex couples face state-to-state variation
With family law traditionally in the states’ domain, state laws governing the rights and responsibilities of same-sex couples and families vary tremendously state-to-state, said Senior Lecturing Fellow Kathryn Bradley. While only Massachusetts has legalized same-sex marriage for its residents, civil unions confer the rights of marriage in a handful of states, and in others, domestic partnerships confer a range of benefits. Most of those arrangements can only be dissolved by the state where they were entered into, Bradley said.

Bradley emphasized the importance for individuals “to know what their state’s law is and do whatever it allows you to do,” in terms of entering into a marriage, civil union, or domestic partnership. If a couple relocates, she added, they should research their new state’s laws carefully and be aware that they may not be afforded the same protections and benefits, as there is no obligation for one state to honor another’s policies.

“There needs to be ‘redundancy,’” Bradley said. “You have to make sure that you’ve done things like have a will, have guardianship papers, and health care decision-making papers ― you need to have in place all of the things you could take for granted if you were able to have the rights of legal marriage.

“Even if you can’t enter into a formal relationship under state law, you can enter into contracts,” Bradley added. “You can enter into a property agreement, you can enter into what is essentially a partnership agreement that says ‘this is how we’re going to handle our financial and personal affairs, and these are the rights we’re going to confer on each other. Courts are likely to honor at least part of it, and it gives you something as a back up regarding your intentions on such issues as property and health-care decision making.”

The same advice applies to same-sex parenting arrangements. Some states allow second- and step-parent adoptions, or at least confer some rights to individuals who have served as “de facto parents,” she said. As with partnership rights, same-sex couples should be well aware of the state mechanisms in place, take full advantage of them, and then back them up with agreements pertaining to such issues as child support and visitation, inheritance, and guardianship, she advised, noting that state courts are likely to honor other states’ laws and judgments pertaining to children.

The local view
North Carolina has no statutes regarding same-sex parenting or domestic partnerships, said Sharon Thompson, a family law practitioner in Durham and a former state legislator. The last state court ruling to address the issue held that adding that “anyone who is living outside of marriage with children creates ‘an immoral, detrimental environment for the children,’” she said. Common in custody and visitation orders and agreements, provisions prohibiting cohabitation in households with children are themselves discriminatory, she said, as same-sex couples lack the option to marry.

A new “battle” is coming from within the LGBT community, Thompson observed: While the “first wave” of parenting cases involved gay and lesbian parents coming out of heterosexual marriages and attempting to get custody of their children, a “second wave” involves biological parents disavowing the parenting agreements they had with their former same-sex partners.

Janie Long, director of the Center for LGBT Life at Duke, applauded Duke trustees’ recent decision to include gender identity in its non-discrimination policy, making it the first institution of higher education in the state to do so. But the issues of the transgender community are so complex, evolving, and poorly understood that even policies designed to be inclusive come with challenges, she said. “The dilemma is that nobody knows exactly what gender identity means. How many transitioning steps does someone have to go through to be protected under gender identity? When are they protected? In North Carolina, a person’s sex is not changed until it is changed on their birth certificate ― which can’t occur until after they’ve had sexual reassignment surgery. I hope that with time there will be greater clarity regarding exactly who is protected by the inclusion of gender identity and who is not.”

Read Duke Law School’s anti-discrimination policy.

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