Fact Sheet

An awareness of the fallibility of the legal system and the effects of bias on the courts has led Lambda Legal Defense and Education Fund to oppose the death penalty as an irreversible and harsh misuse of government power.

In Lambda’s work fighting sexual orientation bias and advocating for rational HIV policies, the organization confronts the legal system’s fallibility on a daily basis. Courts are as imperfect as the people who occupy their jury rooms, counsel tables, and judicial benches, and much of Lambda’s litigation seeks to correct errors and overturn unjust outcomes that result from personal and societal biases all too frequently not left outside the courtroom door. Concern over error, and particularly error caused by bias, must be at its height in death penalty cases because of the severity and finality of government executions. A Columbia University study of capital cases from 1973-1995 found that 68% of death penalty sentences were so legally flawed that they had to be reversed on appeal. See Paul Barton, Efforts to Put Death Penalty on Hold Continue to Grow, USA TODAY at 5A (July 6, 2000). In addition, 87 innocent people have been released from death row since 1973 as a result of DNA tests, recanted testimony or other new evidence, according to the Death Penalty Information Center. Peter Grier, Death Penalty Under Siege, CHRISTIAN SCIENCE MONITOR, at 1 (June 5, 2000). These studies raise grave concerns regarding how many people are put to death as a result of legal error that is not uncovered as well as how many are executed who, in fact, are innocent.

Anti-discrimination laws are important tools for protecting non-discriminatory access to health care for the lesbian, gay, bisexual and transgender (LGBT) community. Studies demonstrate that anti-gay and antitrans bias permeates the medical profession, with adverse effects on the health and well-being of LGBT people. Bias in health care delivery leads many people to avoid preventive and other needed care, often resulting in health problems that are more acute because they have been left undiagnosed and untreated.

Marriages of same-sex couples validly performed in other jurisdictions are accorded legal respect in New York state under longstanding principles of law. This has been confirmed by state appellate and trial courts (see, e.g., Martinez v. County of Monroe (4th Dep’t February 2008)) and Godfrey v. Spano (2d Dep’t December 2008)), by our state government and many local government entities, and by private employers and companies around New York.

The Johnson City Police Department recently published photographs of men they arrested as part of a sting operation targeting gay and bisexual men. This ushered in the latest chapter in a long history of police departments’ unequal treatment of people based on their actual or perceived sexual orientation. Listed below are examples of antigay activity by law enforcement agencies throughout the country.

• Police departments have selectively targeted gay men for enforcement of public sex lawswhile failing to devote the same enforcement efforts to public sex between men and women.[1]
• Some officers, not content with arresting wrongdoers, have gone to great lengths to entice men to commit crimes. In July 2008, a Florida judge threw out charges of indecent exposure, committing a lewd act and battery, because the officer “initiated the topic of sexual acts and repeatedly asked the defendant ‘what he was working with’” in order to entice the defendant to expose himself. [2] In 2006 an appellate court in New Jersey reversed a conviction for lewdness because the defendant presented “a persuasive attack on [the officer’s] credibility, raising serious doubts about whether it was believable that a police officer could have had almost a hundred men approach him, pull out their genitals and start masturbating without any enticement by the officer at all.” [3]
• As in the Johnson City incident, the police have often sought to further punish men arrested for lewd conduct, often before conviction of any crime, through unusual public exposure of these arrests. Many police departments have publicized the identity of men arrested for this activity in ways that they do not do for other crimes, even those that are much more serious. “These solicitation laws frequently have devastating personal, social, and economic effects for those arrested, even though criminal penalties typically are slight . . .” [4] One common practice has been sending reports of the arrests of gay men to their employers and landlords. [5] “[T]he overwhelming majority of abuses, along with the customary notification of employers and publication of names in local newspaper, was simply endured.” [6] “Very often, the charges were thrown out, but by that time, damage was done: local newspapers had published the names of the people charged, and their jobs, marriages, and positions in society were all at risk.” [7]
• Over the years, police departments have engaged in large-scale roundups of gay men for “questioning” with no charges. One of the most well-known of these antigay campaigns involved the rounding up of 1400 men in Boise, Idaho, in the 1950s. [8] Miami Beach Police admitted to a similar practice, with the Miami Beach police chief saying that his force would “harass” gay men “and let them know in no uncertain terms that they are unwelcome on Miami Beach.” [9] Tampa’s vice squad director confessed that this also was true in his jurisdiction. [10]
• Law enforcement officials have falsely suggested that gay men are more responsible than heterosexuals for sexual assaults on children. In Dade County, for example, a police commission official stated that there was a “connection” between the open operation of gay bars and increased complaints of child molestation in the community. [11]
• Police have engaged in extortion schemes targeting gay men, exploiting these men’s concerns about public trials that would expose their sexual orientation. For example, a grand jury in Pittsburgh uncovered a racket by Pittsburgh police “of framing men on ‘morals charges’ then arranging, through ‘cooperative’ attorneys, to drop charges after ‘payments’ were made.” [12] A nearly identical scheme was uncovered in Chicago, in which the lawyers would kickback some of their excessive fees to the arresting officers. [13]

Over the years, there has been a significant improvement in many police departments’ recognition of their obligation to “protect and serve” all members of the community, regardless of sexual orientation or gender identity. Many departments actively train their officers to respond to the needs of all segments of the community and some have created a liaison officer position to respond better to the needs of the LGBT community. Nevertheless, as this case reflects, much work needs to be done to ensure that the men and women charged with keeping our communities safe live up to the highest ideals of the public trust vested in them.

Footnotes

[1]

See Baluyut v. Superior Court, 12 Cal.4th 826, 829 (1996) (court found that arrested gay men “established all of the factors necessary to establish constitutionally impermissible discriminatory prosecution .”); see also Hope v. City of Long Beach, 2005 WL 6009954 (C.D. Cal. 2005); Brown v. County of San Joaquin, 2006 WL 1652407 (E.D. Cal. 2006).

[2]

City of Fort Lauderdale v. Marsh, In the County Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Case No. 70-018738MO10A, Order Granting Defendant’s Motion to Dismiss.

[3]

State v. Mamone, 2006 WL 2237733 *6 (N.J. Super.A.D. 2006).

[4]

Richard D. Mohr, Gays/Justice, A Study of Ethics, Society, and Law (Columbia University Press, 1988), 54-55.

[5]

Robert K. Woetzel, “Do Our Homosexualitly Laws Make Sense?”, Saturday Review of Literature, 48, p. 23-25, Oct. 9, 1965.

[6]

Gary David Comstock, Violence Against Lesbians and Gay Men (Columbia University Press, 1991), p. 13.

[7]

Simon LeVay and Elisabeth Nonas, City of Friends: A Portrait of the Gay and Lesbian Community in America (MIT Press 1995), p. 44.

[8]

John Gerassi, The Boys of Boise (Seattle: University of Washington Press, 2001).

[9]

One, Vol. II, No. 1 (Jan. 1954), p. 19.

[10]

One, Vol. IX, No. 12, p. 9 (Dec. 1961) (the “harassment routine . . . will continue until we’re sure these people know without a doubt they are not wanted in Tampa.”). One incident reflected the Tampa police department’s hostility toward lesbians, in addition to gay men. There, the police held twelve women without charge on “general investigation,” to be fingerprinted, questioned and subjected to mug shots. If their records are clean, said the vice chief, ‘We’ll have to let them go for now, but we’re going to keep after them until we run them out of town.’” One, Vol. V, No. 8 (Oct.-Nov. 1957), p. 19.

[11]

One, Vol. II, No. 1 (Jan. 1954), p. 21. Indeed, not only have scientific studies failed to prove a link between men’s interest in other men and pedophilia, but some studies have shown that such an incidence is very rare. See Gregory Herek, “Facts About Homosexuality and Child Molestation,” http://psychology.ucdavis.edu/rainbow/HTML/facts_molestation.html (citing study of 175 men convicted of sexual assault against a child where, of the 60% who were primarily attracted to adults, none of them were primarily sexually attracted to other adult males (citing Groth, A.N., & Birnbaum, H.J. (1978). Adult sexual orientation and attraction to underage persons. Archives of Sexual Behavior, 7 (3), 175-181); citing a study of abused children in the Denver area where the abuser could be identified, only two of the 269 children were abused by a gay man or a lesbian (citing Jenny, C., Roesler, T. A., & Poyer, K. L. (1994). “Are children at risk for sexual abuse by homosexuals?” Pediatrics, 94(1), 41-44)).

[12 ]

One, Vol. V, No. 4, p. 11 (Apr. 1957).

[13]

Robert L. Jacobson, “ ‘Megan’s Laws’ Reinforcing Old Patterns of Anti-Gay Police Harassment,” 88 Geo. L.J. 2431, 2438 n.50 (July 1999).

What did the Supreme Court of California Say?

The Court declared in a 4-3 split that the California Constitution requires the state to end the exclusion of same-sex couples from marriage.

In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual's opportunity to live a happy, meaningful and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all couples, without regard to their sexual orientation.

The state’s exclusion violated two different rights of individuals who wished to marry a person of the same-sex: the fundamental right to marry and the right to equal treatment.

The Supreme Court of California is the First High Court to Recognize Same-Sex Couples' Fundamental Right to Marry

A fundamental right is one that cannot be taken away unjustifiably from anyone, whether or not there is any unequal treatment. This is the first time a state’s highest court has recognized same-sex couples’ fundamental right to marry.

…we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.

In Lambda Legal’s victory in Lawrence v. Texas, the U.S. Supreme Court said that courts cannot analyze a fundamental right by looking only at how it has historically been enjoyed by a certain group of people because that will automatically preclude extending that right to those who have been excluded. Instead, courts must look at the underlying liberty itself. The California Supreme Court followed that reasoning to examine the fundamental right to marry, explaining that the key precedents do not…

. . . define a fundamental constitutional right or interest in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons – composed of individuals sharing a personal characteristic such as a particular sexual orientation — who historically have been denied the benefit of such rights.

The Supreme Court of California is the First High Court to Recognize that When a State Treats People Differently Based on Sexual Orientation, the Justification Must Pass the Most Difficult Legal Test–Strict Scrutiny

When the government treats people unequally, it has to justify that treatment. The most difficult legal test for the government to meet in equality cases is called the “strict scrutiny” test, commonly applied in cases where people were classified for different treatment based on their race or religion. The California Supreme Court concluded that unequal treatment based on sexual orientation should be subject to strict scrutiny:

Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.

That is the first time a state’s highest court has recognized that strict scrutiny is the appropriate test when a state has discriminated on the basis of sexual orientation.

In applying the strict scrutiny test to decide our claim for equality, the Supreme Court again relied on Lawrence v. Texas, this time to reject the state’s excuse of needing to preserve the traditional definition of marriage:

Although the understanding of marriage as limited to a union of a man and a woman is undeniably the predominant one, if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. . . . As the United States Supreme Court observed in its decision in Lawrence v. Texas . . . the expansive and protective provisions of our constitutions, such as the due process clause, were drafted with the knowledge 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.’”

Under the strict scrutiny test, all excuses for discrimination failed, and the Supreme Court held that excluding same-sex couples’ from marriage was a violation of their right to equality.

The Supreme Court of California Agreed That the "M" Word Matters

In California, same-sex couples could register as domestic partners and thus obtain most of the protections of marriage, except for the powerful name of marriage itself. The Supreme Court agreed with us that the name of marriage matters:

While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

This is more strong authority for Lambda Legal’s ongoing campaign to educate America about how a separate legal structure for same-sex couples’ relationships is an invitation for others to discriminate against those couples.

The Supreme Court of California Made a Strong Statement About the Independent Role of the Courts to Uphold the Promisesof the State Constitution

The Supreme Court of California stood firm in asserting its proper role to make sure constitutional promises are kept by other branches of government:

. . . under “the constitutional theory of ‘checks and balances’ that the separation-of-powers doctrine is intended to serve” . . . a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.

As Chief Justice Poritz of the New Jersey Supreme Court observed in her concurring and dissenting opinion in Lewis v. Harris . . . “Perhaps the political branches will right the wrong presented in this case by amending the marriage statutes to recognize fully the fundamental right of same-sex couples to marry. That possibility does not relieve this Court of its responsibility to decide constitutional questions, no matter how difficult. . . . . The question of access to civil marriage by same-sex couples ‘is not a matter of social policy but of constitutional interpretation.’ . . . It is a question for this Court to decide.

One justice concurred, emphasizing the profound importance of judicial independence:

In holding today that the right to marry guaranteed by the state Constitution may not be withheld from anyone on the ground of sexual orientation, this court discharges its gravest and most important responsibility under our constitutional form of government. There is a reason why the words “Equal Justice Under Law” are inscribed above the entrance to the courthouse of the United States Supreme Court. Both the federal and the state Constitutions guarantee to all the “equal protection of the laws” . . . and it is the particular responsibility of the judiciary to enforce those guarantees. The architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection.

This will be a core source of authority for Lambda Legal’s continuing work to protect judicial independence through our Fair Courts Project.

Same-sex Couples Lose Benefits They Paid for to Insure Against Hard Times

Most employees in the United States see a “FICA” deduction — reducing their take-home pay — on every paycheck. FICA stands for the Federal Insurance Contribution Act. Those deductions are what employees pay into the federal Social Security system to fund benefits not only for retirement, but also for when a spouse dies or becomes disabled. The principal goal of these benefits is to provide a safety net, similar to life insurance.

A Nation’s strength lies in the well being of its people. The social security program plays an important part in providing for families, children, and older persons in time of stress...
- President John F. Kennedy
June 30, 1961

Same-sex Couples Pay in With Involuntary Pay Check Deductions, But Don’t Get the Pay Out Other Couples Get

The safety net that Social Security provides takes into consideration the family as a whole. This means the earnings record of an employee can be drawn on by other members of the employee’s family.

This makes sense for many reasons. For example, couples often make decisions to have one of them work to support the other while that one completes education or training. Or they may decide to favor one of their careers over another in order to allow one parent to spend more time with children, or to increase the family’s income. The Social Security system recognizes this, allowing the lower wage-earning spouse in certain circumstances to access the higher wage-earner’s record for the purpose of computing benefits. But same-sex couples are denied access to marriage, and thus lose those benefits even though they have paid for them.

Same-sex Couples Get Less When They Retire: A Typical Couple Could Lose Over $10,000 per Year

Consider a married couple that retires together:

Imagine Pat and Jean, married for thirty years. Pat often set aside career development and shouldered the household tasks, because that helped promote Jean’s more lucrative career, producing more income for the couple. When they retired, Jean was entitled to a monthly Social Security benefit of $1500 per month, based on Jean’s earnings record. Pat was entitled to $525 per month based on Pat’s earnings record. But Pat exercised the option, available to a spouse under Social Security rules, of electing instead to get half of Jean’s benefit, or $750 per month, which meant an extra $225 per month ($2700 per year). This is a significant amount for senior citizens on fixed incomes. And if Jean dies, Social Security gives Pat, as a surviving spouse, Jean’s entire monthly benefit of $1500 per month.

Imagine now that Pat and Jean are a same-sex couple, with nothing else changed about the couple:

Because they are a same-sex couple, the government blocks them from marrying. But everything else is the same, including their thirty years of commitment to one another, and their jobs. But when Jean and Pat retire, Pat cannot access Jean’s earnings record, and the couple thus loses $2700 per year. And if Jean dies, Pat’s benefits are $525 per month rather than $1500 per month, for a loss of $11,700 per year. This is a loss that most senior citizens on fixed incomes cannot afford.

Same-Sex Couples Get Less Protection for their Children: A Typical Couple Could Lose Over $200,000

Consider a married couple in which one member dies before retirement:

Imagine a married couple, Terry and Chris. Chris worked and paid for Terry to go to a trade school for several years. After graduation, Terry’s earning capacity was far greater than Chris’s. After working for five years, the couple adopted a baby. Because Terry could earn more, they decided Chris would be a homemaker until their child was in elementary school. This meant that Terry could work longer hours because Chris was taking care of all the family’s household needs. But two years later, Terry died in a car accident. Because of the FICA deductions to Terry’s bi-weekly paycheck, the child received Social Security benefits each month. As the spouse, Chris also received monthly Social Security benefits of $1200, based on Terry’s earnings record. Chris had to go back to work, but the benefits allowed Chris to work part-time, save on child-care, and spend some of the time with the child that the family had originally planned. The benefits to Chris last until the child is sixteen.

Imagine now that Chris and Terry are a same-sex couple, with nothing else changed about the couple:

Again, because they are a same-sex couple, the government blocks them from legally marrying. Everything else is the same, including Chris and Terry’s employment decisions and their adopted child. But when Terry dies in the accident, because Chris and Terry have not been allowed to marry, Chris does not get benefits based on Terry’s earnings record. The family loses $1200 per month, or $14,400 per year for the fourteen years until the child is sixteen, resulting in a total loss (not reflecting adjustments for inflation) of $201,600.

The fight to win the freedom to marry from the government is also a fight for the many transgender people who are in same-sex relationships. But there is an extra layer of complication for transgender people, because, if you are transgender, whether or not you are considered by the government to be in a same-sex relationship can depend on whether or not your gender identity is respected. In short, perception of your gender identity affects whether or not your relationship with someone else is seen as a different-sex or same-sex relationship, and, in most states, that determines whether or not the government will allow you to marry your partner.

The harms to families from discrimination in marriage have been a significant part of Lambda Legal’s caseload over the years. This document is a partial list of the harms that concern families, with examples from Lambda Legal’s prior work.