U.S District Court Hears Arguments on Motion to Release Videotape of Historic Prop 8 Trial

August 29, 2011

(San Francisco, CA, Aug. 29, 2011)—Today, U.S. District Court Judge James Ware heard oral arguments about whether to unseal the video recording of the historic trial in Perry v. Brown, the challenge to Proposition 8, the 2008 ballot measure that stripped the freedom to marry from same-sex couples in California. In August 2010, after a three-week trial in January, now-retired Chief District Judge Vaughan Walker held that Prop 8 is unconstitutional. That ruling has been on hold while Prop 8 proponents appeal Judge Walker’s ruling.

Since suffering a devastating loss at trial, Prop 8 proponents have fought to prevent the public from viewing the official video recording of the trial. The proponents initially sought a court order requiring that all copies of the videotape be returned to the Court, which Judge Ware denied earlier this year. The same-sex couples who are challenging Prop 8 filed a motion seeking to unseal the video recording, which the proponents oppose. The City and County of San Francisco and Media Coalition members including The LA Times, CNN, The New York Times, FOX News, NBC News, The Associated Press, and others filed friend-of-the court briefs asking the court to release the videotape of the public trial.

At the close of today’s hearing, Judge Ware indicated that he would issue his ruling on the issue promptly.

A Statement by NCLR Legal Director Shannon Minter:

“The proponents of Proposition 8 showed again today that they do not have a single legitimate argument for barring the public from seeing the recording of this historic trial.  The proponents presented a case based on bigotry and fear, and now they are desperately seeking to bury the record of that shameful performance from public view.  We salute the efforts of the plaintiffs, the City and County of San Francisco, and the major news outlets that are seeking to uphold the First Amendment and vindicate the public’s right of access to a trial that addresses vital constitutional rights of California’s citizens.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org


Release the Prop. 8 Tapes

August 27, 2011

08.27.11
By Shannon Minter, Esq.
Legal Director

On August 29, 2011, U.S. District Court Judge James Ware will hear arguments about whether to unseal the video recordings of the historic trial in Perry v. Brown, the federal court challenge to Proposition 8, the 2008 ballot measure that stripped the freedom to marry from same-sex couples in California. After a three-week trial in January 2010, now-retired Chief District Judge Vaughan Walker issued a decision in August 2010, holding that Prop 8 was based on anti-gay animus and blatantly violated the equality guarantees of the federal Constitution. That ruling has been on hold while the proponents of Prop 8 appeal Judge Walker’s ruling.

Since suffering a devastating loss at trial, the proponents of Prop 8 have fought to prevent the public from seeing the official video recording of the trial—even though the trial was open to the public and attended by hundreds of citizens and spectators. In a bold counter-move, the couples who filed the Perry litigation have asked the Court to unseal the video recording so that it can be made available to the public. True to form, the proponents opposed that request. Once again, they are seeking to hide the video recordings of a public trial about the constitutional rights of California’s citizens.

Why are the same people who spent tens of millions of dollars on a very public campaign attacking equality for LGBT people now fighting so hard to conceal those efforts? Because the proponents of Prop 8 have a lot to hide. They presented a case based on junk science and bigotry. When exposed to the rigors of the judicial process, their witnesses and experts withered on the stand, and their utter lack of credibility was apparent to all.

Meanwhile, the plaintiffs provided moving and compelling testimony about their families, as well as testimony from the nation’s leading scholarly experts on marriage, parenting, and child welfare. The proponents of Prop 8 don’t want even one more person to see their courtroom debacle, so they are fighting vigorously to conceal it from public view.

We hope—and have every reason to believe—that the Court will uphold the First Amendment, ensuring that future generations have access to this historic trial, and can witness first-hand the proponents’ failed efforts to perpetuate discrimination and hate. If nothing else, it is clear that the proponents need a history lesson about how democracies function—including the basic tenet that all citizens and the press have a presumed right of access to court proceedings and documents. Regardless of how the Court rules, the proponents’ effort to hide the court record speaks volumes about the weakness of their position—and the strength of ours.


NCLR Represents Sixth Student in Lawsuit Against Minnesota School District

August 9, 2011

(Minneapolis, August 9, 2011)—Today, the National Center for Lesbian Rights (NCLR) filed a lawsuit in federal district court in Minneapolis on behalf of a sixth student, an out lesbian, who experienced severe harassment while attending school in the Anoka-Hennepin School District, where a discriminatory gag policy prevents staff from addressing lesbian, gay, bisexual, and transgender issues, including bullying.

The lawsuit is a companion case to Doe v. Anoka-Hennepin School District No. 11, the federal lawsuit that NCLR and partner organizations filed July 21, 2011 on behalf of five other district students who experienced similar harassment. Both lawsuits charge that Anoka-Hennepin’s gag policy contributes to a hostile environment in which LGBT students and those perceived as LGBT are subjected to anti-LGBT slurs and physical threats on a daily basis by their peers. While many of these abuses occurred in front of teachers or were reported to school officials, school personnel almost always took insufficient action to stop the abuse due to the gag policy.

The sixth student, who is referred to by her initials of E.R. in the complaint because she is a minor, started attending Anoka-Hennepin’s Jackson Middle School in September 2010 after her family moved into the district. Beginning on her first day in school, she faced a constant, daily barrage of taunts from other students, who called her names like “faggot,” “dyke,” “he/she,” and “it.” While she regularly reported the harassment to teachers and administrators, they did not protect her. A staff member once told E.R. that she had heard other staff talking about E.R. in the office, saying that they wished the school could “get rid of her.”

“This is yet another incredibly distressing example of how the district’s shameful policy has hurt kids,” said NCLR Executive Director Kate Kendell. “The district has to stop turning its back on children, and recognize that its illegal policy that singles out those who are LGBT is the reason that so many children in their schools continue to be tormented—verbally, physically, and emotionally—every day.”

E.R. is represented by NCLR and the law firm of Culberth & Lienemann, LLP. The attorneys will be working closely with the Southern Poverty Law Center and Faegre & Benson, LLP, who are co-counsel with NCLR in Doe v. Anoka-Hennepin School District No. 11.

Read the complaint.

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org


Legal Experts Urge Supreme Court to Address Discrimination Against Children with Unmarried Adoptive Parents

August 9, 2011

(San Francisco, CA, August 9, 2011)—Today, the National Center for Lesbian Rights and Dewey & LeBoeuf LLP filed an amicus brief on behalf of leading family law, constitutional law and conflict of laws professors and legal experts asking the U.S. Supreme Court to review a decision by the Fifth Circuit Court of Appeals holding that Louisiana can discriminate against children born in Louisiana and adopted by unmarried parents in other states by refusing to issue them accurate birth certificates.

The brief urges the Court to take this case because denying these children an accurate birth certificate that certifies their legal identity and parentage denies them equal protection and violates the constitutional requirement that every state must give Full Faith and Credit to, and fully recognize, adoptions granted in other states

“No child should ever be treated differently or denied access to proof of their legal identity in violation of well established federal constitutional protections because their parents are unmarried,” said University of California, Berkeley School of Law Professor Joan Heifetz Hollinger. “Decades ago, the Supreme Court ruled that disadvantaging children based on the marital status of their parents violates equal protection.”

Oren Adar and Mickey Smith adopted their son, who was born in Louisiana, in 2006 in New York. The Louisiana State Registrar, Darlene Smith, refused to issue an amended birth certificate reflecting the adopted parents’ names even though Louisiana law requires the Registrar to provide amended birth certificates to all adopted children. Smith claimed that she would not include both adopted parents’ names on an amended birth certificate if the child was adopted by unmarried parents in another state.

Lambda Legal filed suit on behalf of Adar and Smith in October 2007, saying that the Registrar violated the Full Faith and Credit Clause of the U.S. Constitution by refusing to recognize the New York adoption decree, and that denying a birth certificate only to children of unmarried parents violates the Equal Protection Clause of the Fourteenth Amendment.

In 2008, U.S. District Judge Jay Zainey ordered the Registrar to recognize the child’s adoption under the Full Faith and Credit Clause and issue an amended birth certificate identifying both Oren Adar and Mickey Smith as the child’s parents. In 2010, a three-judge panel of the Fifth Circuit Court of Appeals agreed. The Louisiana Attorney General then requested a rehearing by the full Fifth Circuit, which reversed the two prior rulings on April 12, 2011, and held that the Registrar was not subject to suit in federal court for alleged violations of the Full Faith and Credit Clause and could refuse to issue accurate birth certificates only to children adopted by unmarried parents.

NCLR and Dewey & LeBoeuf LLP represent professors of family law, constitutional law, and conflict of laws and drafters of uniform laws who support the constitutional rights of adopted children to be treated equally regardless of the marital status of their parents and to have their adoptions fully recognized in every state.

Read the brief.

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org


Widow Defends Her Marriage Against Challenges by Deceased Wife’s Parents

August 3, 2011

(San Francisco, CA, August 3, 2011)—The National Center for Lesbian Rights is representing Jennifer Tobits, the widow of Sarah Ellyn Farley, whose parents are challenging the couple’s marriage and seeking control of Farley’s estate and death benefits provided by her employer.

This week, Tobits filed court documents seeking to be named the executor of her wife’s estate and defending her status as a surviving spouse. Tobits’s in-laws had sought to take control of their deceased daughter’s estate. They had also directed their daughter’s employer to pay them, not Tobits, her death benefits under the employer’s profit-sharing plan, arguing that the couple’s four-year Canadian marriage is invalid and their relationship should not be recognized.

“Ellyn was the love of my life,” said Tobits. “No one should have to experience the pain of losing the person who means the most to you, only to face a shocking and hostile challenge to your marriage—your commitment, your life together, and everything you built as a couple.”

Tobits and Farley lived in Chicago and were married in Toronto in 2006. Two weeks after their wedding, Farley was diagnosed with a rare and aggressive form of cancer. The couple fought the disease together for four years until September 2010, when Farley passed away. She was 37. In their last few days together, Farley told Tobits she feared her parents, who had never respected her relationship with Tobits—and did not take part in their wedding celebration—would turn on Tobits after Farley’s death and do whatever they could to make sure that they, and not Tobits, would inherit Farley’s assets.

Shortly after Farley’s death, her parents filed a court action in Illinois probate court to take over the administration of her estate, telling the court that their daughter had “never married” and that they, and not Tobits, were her heirs. They also told Farley’s employer, a law firm, that they should receive their daughter’s death benefits under the firm’s profit-sharing plan, claiming that Farley had signed a form naming them her beneficiaries.

In January 2011, Farley’s employer filed an action in the federal district court for the Eastern District of Pennsylvania to determine whether Tobits or Farley’s parents should receive the benefits.  In her response, filed Monday, Tobits argues that the designation form is invalid because Farley’s parents pressured her to sign it on her deathbed, less than 24 hours before she died, and because a married person cannot designate another person to receive benefits without the written permission of her spouse. Farley’s parents claim that Farley’s marriage to Tobits should not be recognized.

“When Ellyn was alive, her parents refused to respect her identity or to acknowledge her marriage,” said NCLR Legal Director Shannon Minter. “Now they are continuing to try to erase who she was and to pretend her relationship with Jennifer never existed.  We are confident the courts will not let that happen.”

Farley’s parents are represented by the Thomas More Society, an anti-gay legal organization. In press releases, the group’s executive director has referred to Tobits as a “leech,” who is trying to “pad her pocketbook.”

NCLR and co-counsel Benjamin L. Jerner and Tiffany Palmer of Jerner & Palmer, P.C. Teresa Renaker and Julie Wilensky of Lewis, Feinberg, Lee, Renaker and Jackson, P.C., and Dan Ebner and Ray Prather of Prather Ebner LLP are defending Tobits’s right to be recognized as Farley’s spouse.

Photos available upon request.

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org


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