Tag: Duke University School of Law

Fall Semester 2019 Programming

Our 2019 calendar was full of social, networking and legal events!

September, 2019

In September, Duke OutLaw co-hosted a panel discussion entitled “Where Gender Identity and Biology Collide: A Conversation with Doriane Coleman and Laurence Helfer.” The topic centered on the recent sports law case of Caster Semenya, a track athlete who has been prohibited from competing in the Olympics due to her biological composition. Socially, OutLaw sponsored a Social and Trip to Legends Bar in Raleigh, NC. A group of students from the Law School and the Duke Fuqua School of Business attended.

Duke OutLaw members before heading to Legends, Raleigh.

October, 2019

In October, OutLaw hosted the Durham Pride Breakfast before attending the Durham Pride Parade. Thousands of LGBTQ+ marchers were joined by allies to celebrate our diversity and demand further progress on LGBTQ} issues.

Duke OutLaw members attending the Durham Pride Breakfast.

Later in the month, OutLaw members attended the Fuqua School of Business Halloween Drag Show, hosted by FuquaPride. The event took place at Shooters Saloon, a favorite Duke undergrad bar with a stage, mechanical bull, and a cage for dancing above the crowd. The event provides OutLaw members a chance to cut loose around the halfway point of the fall semester.

November 2019

OutLaw’s November panel LGBTQ+ in Big Law featured attorneys from Gibson Dunn, Sidley Austin and Morgan Lewis. The attorneys spoke at length about their storied careers, what it is like being LGBTQ+ at some of the biggest law firms in the United States, and where firms can do better in the space of creating inclusive and equal spaces for LGBTQ+ lawyers.

 

Attorneys speak to students about life in Big Law as LGBTQ+ lawyers.

In early November, Sidley Austin joined OutLaw for a cocktail reception at Alley 27, a trendy Durham bar with signature drinks and excellent food. Attorneys got to know 1L students and speak with them about opportunities at the firm.

Other students attended a coffee session with Morgan Lewis attorneys to discuss Pro Bono work at the firm and opportunities for summer internships.

Socially, OutLaw members enjoyed a mixer with Fuqua Business School Pride at a local LGBTQ+ bar in Durham.

OutLaw also co-hosted a “Spread the Love” letter writing event with a number of other Duke Law student groups in response to a protest by Westboro Baptist Church outside Duke’s campus. The letter writing campaign resulted in dozens of letters of support and love being sent to people struggling with grief, bullying, self-acceptance and other difficult experiences.

Students write letters of support for suffering individuals as a demonstration of love and acceptance.

To round out the semester, Duke OutLaw hosted the panel “Fired for being LGBT+: Supreme Court Showdown Over Title VII Workplace Discrimination.” The discussion centered on two Supreme Court cases about whether LGBTQ+ persons are included as being protected from discrimination under the federal workplace discrimination law. The panel featured Greg Nevins, an appellate attorney who argued one of the cases in the lower circuit; Noah Lewis, attorney at the Transgender Legal Defense and Education Fund; and Professor Ames Simmons, policy director at Equality NC and professor at Duke Law School.

Lawyers discussing the pending Title VII workplace discrimination cases at the Supreme Court.

The panel was moderated by Duke Constitutional Law Professor Neil Siegel. Noah Lewis stuck around to do a second panel, co-hosted by the Health Law Society, about Eliminating Discrimination in Trans Health Care Issues.

Hollingsworth v. Perry: Taking a Stand on Standing in the California Prop 8 Marriage Equality Case

While the landmark decision in United States v. Windsor started last Wednesday’s Supreme Court Session–the very last session of the term–off with a bang, many felt that the opinion in Hollingsworth v. Perry, the case challenging California’s Proposition 8 (“Prop 8″), ended it with a whimper.  Rather than decide the case on the merits and rule whether laws prohibiting same sex couples from marrying violate the Equal Protection Clause of the Fourteenth Amendment, the court was seen to have “punted” on the issue using arcane procedural grounds.  The upshot of the court’s decision may be great for same-sex couples in California desiring marriage rights, but it presents a troubling issue for the democratic process around the country.

Factual & Procedural Background

In 2000, California passed Proposition 22, which was a state statute banning same-sex marriage.  In 2008, the California Supreme Court ruled in In re Marriage Cases that the California Constitution recognized the rights of same-sex couples to marry, invalidating Proposition 22.  In response, the California voters passed Prop 8, a ballot initiative led by ProtectMarriage.com, which identically copied the language from Proposition 22,  reading “Only marriage between a man and a woman is valid or recognized in California.”    As an amendment–not a statute–it superseded the California Supreme Court’s decision in In re Marriage Cases.

The American Foundation for Equal Rights (“AFER”), on behalf of two same-sex couples who had been denied marriage licenses, filed suit in federal court alleging that the California Constitution, by prohibiting same-sex marriage, violated the Due Process and Equal Protection clauses of the Fourteenth Amendment.  The defendants, originally the Attorney General and Governor of California, declined to defend Prop 8 (though they continued to enforce it).  Because state officials refused to defend the lawsuit,  ProtectMarriage.com, led by Dennis Hollingsworth, was allowed to intervene as defendants in the federal suit.

Chief Judge Vaughn Walker of the Northern District of California ruled in favor of the plaintiffs, holding that the California Constitution as amended by Prop 8 did indeed violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment, thus invalidating prop 8.  The defendants appealed to the Ninth Circuit Court of Appeals, which stayed the district court ruling, effectively prohibiting same-sex marriage in California until the appeal was resolved.

Because the defendants were only interveners, who were neither officials of California, nor had a fiduciary duty to defend the proposition to the voters of California, through election or appointment, a major question for the Circuit Court was whether Hollingsworth and ProtectMarriage.com had standing to bring the appeal.  The Ninth Circuit asked the Supreme Court of California whether, under California law,

[T]he official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiatives validity which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (2011).  The California Supreme Court held the official proponents had standing to appeal.  The Ninth Circuit accepted this holding and ended in affirming the district court: Prop 8 was unconstitutional. When the U.S. Supreme Court granted certiorari to hear the appeal, it asked the parties to brief and prepare arguments to resolve whether the California Supreme Court was correct.

Supreme Court Holding

Article III, §2 of the U.S. Constitution demands the court to decide actual “cases” and “controversies.”  The Supreme Court interprets this to mean that the parties involved have some actual injury or direct interest to redress, or be an agent for the injured party.  For a party to have standing to bring appeal, the district court ruling must have directly affected that party in some way.

The Supreme Court found that, despite ProtectMarriage.com’s professed interest in limiting marriage to heterosexual couples, they did not have the concrete, particularized interest distinct from that of any other California citizen required to litigate the matter on appeal.  Nor were they agents or representatives of California’s citizens.  In effect, the Ninth Circuit should not have heard the case in the first place, thus the Supreme Court did not have an “actual case or controversy” concerning same-sex marriage before them.  The Supreme Court thus would not let itself reach the question as to whether restrictions on gay marriage violate the Fourteenth Amendment.  ”We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”  Hollingsworth v. Perry, 570 U.S. ____ (2013) (Slip op. 17).  The Supreme Court remanded the case to the Ninth Circuit with instructions to dismiss the appeal.  The District Court’s order declaring Prop 8 amendment unconstitutional remains good law.

Effect for California

The district court’s order prohibits California officials from enforcing the Prop 8 language in the constitution.  Yet, there is some issue as to whether the district court ruling requires California to dispense licenses to all same-sex couples, or simply the plaintiffs in this case, which may spur further litigation.  The Governor of California has, however, ordered all counties to grant licenses to same-sex couples seeking them once the Ninth Circuit has lifted the stay on the district court’s order, which could take several weeks.  The general effect is generally as if Prop 8 was never passed and same-sex couples can get married just as they did prior to its passage.  Moreover, the decision in Windsor v. United States means that same-sex marriages in California will be recognized by the federal government.

What is Next

Federal district court opinions, such as the one striking the Prop 8 language have little force as precedent in other jurisdictions, thus the constitutionality on state prohibitions of same-sex marriage is still questionable.

Perhaps the more nettlesome question in this case is what happens when state officials refuse to defend lawfully and democratically passed laws in court.  Though in this case, the law in question was detrimental to the LGBT/Q community, it’s not unthinkable that states could refuse to enforce laws beneficial to that same community, or even lawfully passed tax or welfare initiatives.  Further, had California defended the law, which it continued to enforce, in this case, the Supreme Court may have reached the merits and we would have a more certain, potentially positive, ruling on same-sex marriage.

Whatever the implications, this ruling allows same-sex marriage in the largest state in the US.  This is certainly a breakthrough in the continuing national debate on this issue.  Though perhaps a whimper, it will certainly be appreciated by same sex couples in California.

Todd Noelle is a rising 2L at Duke University School of Law and OutLaw Events Coordinator.  He is working this summer as a judicial intern with Justice Dan Biles at the Kansas Supreme Court.

Duke Issues a Statement Opposing Amendment 1

Duke University and Duke Medical Center issued a joint statement in opposition to the so-called “Defense of Marriage” Amendment, which will appear on the May 2012 primary ballot. The full version appears below, with key language in bold.  http://today.duke.edu/2012/02/lgbtstatement

Statement from Duke University and Duke Medicine

February 17, 2012

Duke University and Duke Medicine have a strong commitment to diversity in our missions of education, research and service to society. We put this goal into action by valuing all members of our community, including our lesbian, gay, bisexual and transgender (LGBT) faculty, staff, students and alumni.

More than two decades ago, Duke added “sexual orientation” to the university’s nondiscrimination policy, which it later expanded to include “gender identity.” Through this and other policies, and through its actions, Duke has sought to eliminate discrimination and promote equality for LGBT members of its community.  The many steps it has taken include:

  • Providing health insurance for same-sex spousal equivalents and families
  • Extending Family Medical Leave Act benefits to LGBT families
  • Extending the Duke Children’s Tuition Grant Program to LGBT families
  • Ensuring family facility benefits for gym and library access
  • Recognizing LGBT families for institutional financial aid purposes
  • Welcoming same-sex unions at the Duke Chapel and the Duke Gardens.
  • Providing funding, space and support for the Center for Lesbian, Gay, Bisexual  & Transgender Life

We believe recognizing the families of LGBT faculty, employees and students by offering these and other benefits is essential for Duke to recruit, retain and nurture excellence in all our endeavors.  In addition,our commitment to diversity and equality extends beyond the campus to our larger community and region. For example, since 2000 Duke has hosted the annual NC Pride parade and festival. It also hosted the first two Equality NC conferences and galas and sponsored the 2011 Equality Gala.

Duke University and Duke Medicine reaffirm their commitment to providing equal benefits to LGBT faculty, staff, employees and students. As a major employer in North Carolina, we are proud to serve as a model of acceptance and diversity, and we stand alongside the LGBT community in seeking a more equal world. 

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