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Friday, December 17, 2010

Culhane: The gay year ahead

, Professor of Law, Widener University -

With just a couple of weeks to go in 2010, the time seems ripe to list the big legal issues I expect to be following during the next year – along with some predictions.
  • Wither the Prop 8 litigation? Unless the case is tossed out for lack of standing (which I doubt), Perry v. Schwarzenegger likely won’t get resolved by the end of 2011. But there will be at least one, and maybe two, appellate decisions (by the Ninth Circuit panel that heard the case last week and perhaps by the court sitting en banc) and endless analysis and commentary from every point along the legal and political spectrum.
Prediction: The appellate court will side with Judge Walker’s decision, finding Prop 8 unconstitutional. The case will inch closer to the Supreme Court.
  • DADT won’t get repealed this year (please, let me be wrong!). Obama’s Justice Department won’t drop the appeal, nor will the Conciliator in Chief issue an Executive Order that would at least temporarily end the policy. But discharges – already rare under Obama – will diminish down to almost zero, thereby paving the way for eventual repeal (in about 2017).
  • Apart from the Prop 8 case, marriage equality will plod along. Maryland will pass an equality bill, and New Hampshire in the end won’t repeal its equality legislation. Hawaii will join Illinois in passing a civil union bill. As the percentage of citizens in states with civil union or marriage equality laws crosses the 30% threshold, public opinion will continue to swell in our favor – not just for civil unions, but for full equality. (Obama, however, will not move toward support for marriage equality, content to sit comfortably behind the curve.)
  • Bullying of LGBT youth will continue to command political and legal space. Several states will strengthen their anti-bullying laws, thereby calling to account not just the kids who bully, but also the authorities allowing this shameful treatment to continue. Yet law will continue to have limited effect in this area; advocates and the kids themselves will play the larger part in reducing the violence. Glee will have limited impact on the situation.
  • The battle over the accommodations between LGBT rights and religious liberties will intensify. Radical right Christians (or “Christianists,” a term that I prefer to describe this subset of Christians) will continue to press – mostly unsuccessfully – for broad exemptions from any anti-discrimination or pro-equality laws that are enacted. Their failure to enact their prejudices into law will feed their narrative of victimization. (I will be addressing this issue soon.)
  • The public health benefits of the health care reform law will begin to become evident, even as the legislation’s promise enters a kind of judicial limbo, waiting on an ultimate ruling by the Supreme Court on whether the pay-or-be-fined mandate is constitutional. (Yes, health care reform is LGBT rights law, as the most marginalized and ostracized members of our community stand the most to gain.)
Prediction: Unless there’s a change in the make-up of the Supreme Court, the mandate will likely be struck down, 5-4 for the complex constitutional reason that the Justices…don’t like it.
  • No prediction here, but an important story nonetheless: The assault on judicial independence begun by NOM and its supporters in Iowa is extremely troubling. (As you’ll recall, the Iowa Supreme Court had committed the unpardonable sin of interpreting the state’s constitution to require marriage equality; the decision was unanimous.)  Whether or not the suit challenging the ouster of three of the seven justices is successful, NOM’s despicable tactic is a shot across the bow, intended to frighten judges in other states from doing their constitutional duties.  It won’t work.
  • The Ugandan Parliament will not end up passing any version of their unspeakable “kill the gays” bill, but the connection between American fundamentalists and their Ugandan  counterparts will continue to be exposed.
  • [This space reserved for unforeseeable legal issue.]
Although I’ll probably have another column or two in this space before year’s end, this seems like a good place to pause and thank all the readers – those who comment and those who don’t, and whether you usually agree with me or not – for making this column a part of my weekly routine that I approach with great zeal and enthusiasm.
And thanks to Jay Vanasco for reaching out to me in the first place. As they used to say in the comix I read as a kid: Excelsior!
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Del. He blogs about the role of law in everyday life, and about a bunch of other things at: He is the editor of and contributor to a just-released book, Reconsidering Law and Policy Debates: A Public Health Perspective, now available on Amazon.  His chapter is on marriage equality.

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