169 lines
8.2 KiB
Plaintext
169 lines
8.2 KiB
Plaintext
FOR IMMEDIATE RELEASE,
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April 27, 1989
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LESBIAN AND GAY RIGHTS LAW ENTERS NEW STAGE
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In federal and state courts around the country, the spring
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of 1989 marks the emergence of a new phase in the development of
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gay rights law, according to staff lawyers at the ACLU Lesbian
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and Gay Rights Project. "This is the beginning of the post-
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Hardwick era," said Nan D. Hunter, director of the Project. "In
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the three years since Bowers v. Hardwick, the case in which the
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Supreme Court held that a state could criminalize homosexual
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sodomy, the ACLU and other gay rights advocates have shifted
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their focus from sodomy law reform to other areas -- particularly
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equal protection law, family benefits, and First Amendment
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protection for speech.
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"The coming year will see a new round of decisions at the
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appellate court level on many of these important issues," Hunter
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stated. "Our goal now is to expand Constitutional protection for
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lesbian and gay Americans despite one of the worst decisions in
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Supreme Court history."
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The nation's most watched gay rights case is Watkins v.
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United States Army, the ACLU's challenge of the Army's refusal to
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allow the re-enlistment of Sgt. Perry Watkins solely on the basis
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of his homosexuality. Last February, a panel of judges in the
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U.S. Court of Appeals for the Ninth Circuit ruled in Watkins's
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favor. The judges held that, notwithstanding Hardwick, gay
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persons constitute a suspect class for equal protection purposes,
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so that laws which discriminate against them (such as the Army's
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regulations) must be strictly scrutinized. The panel found that
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the Army regulations did not serve a compelling government
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interest and thus were unconstitutional.
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The Army requested and was granted a rehearing of the case
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by an en banc panel of the Ninth Circuit. The argument took
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place on October 12, 1988. No decision has been rendered by the
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court, but one could be announced at any time.
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Meanwhile, a very similar case has reached the Seventh
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Circuit Court of Appeals -- BenShalom v. United States Army.
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Like Perry Watkins, Miriam BenShalom was an exemplary soldier who
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was nonetheless denied re-enlistment solely because she was a
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lesbian. As in the Watkins case, the Army had no evidence that
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BenShalom ever engaged in forbidden conduct. The Army seeks to
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exclude her solely because she says she is lesbian. The federal
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district court in Wisconsin ruled that BenShalom was protected by
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both the equal protection clause and the First Amendment.
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The ACLU's Lesbian and Gay Rights Project, with the ACLU of
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Wisconsin, filed an amicus brief in the Seventh Circuit on behalf
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of BenShalom and coordinated supportive amicus briefs from
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several other organizations, including the American Psychological
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Association and the Women's Legal Defense Fund. The case will be
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argued in the Seventh Circuit in Chicago on May 18.
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"We argue that the Army regulations are unconstitutional
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using even the lowest standard of review -- a rational basis
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test. The actual purpose served by the regulations is to enforce
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the presumed prejudice of non-gay soldiers who the Army assumes
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will object to serving with lesbian and gay comrades. That is
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not a legitimate purpose," said William B. Rubenstein, Staff
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Counsel to the ACLU's Lesbian and Gay Rights Project.
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"We also argue that Miriam BenShalom's First Amendment
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rights have been infringed. While the Army may be able to forbid
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certain conduct such as sodomy, they cannot make it an offense to
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speak about being gay," Rubenstein added.
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While gay rights advocates eagerly await the equal protec-
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tion decisions in these cases, they are also forging ahead on
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other fronts, particularly around issues concerning family rights
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for gay men and lesbians. In the leading case in this area, the
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ACLU recently argued before New York's highest court that a gay
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couple should be considered "family" for the purposes of a rent
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control regulation. The New York City rent control regulation
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protects spouses and other family members from eviction from an
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apartment which had been their family home, in the event that the
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tenant named on the lease dies.
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In the ACLU's case, two gay men had lived together for more
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than a decade in the apartment initially rented by one of them.
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They had shared financial assets and introduced each other to
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their friends and relatives as family and life partners until
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one of the men, the first tenant, died of AIDS.
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"We have asked the Court of Appeals to rule that the meaning
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of the regulation must be construed so that our client and his
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partner fall within the scope of the term 'family members,'" said
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Rubenstein, who argued the case in the Court of Appeals for the
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ACLU. "Alternatively, we seek a ruling that even if the regula-
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tion is not construed in that way, the state constitution's equal
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protection clause requires that he be protected because his
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relationship was the functional equivalent of a family," Ruben-
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stein added.
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Realizing its importance, dozens of groups in New York,
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including the City itself, have filed amicus briefs in the case
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supporting the ACLU's position. "Because it is before the
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highest court in New York State, the decision in this case will
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finally decide whether gay couples will be treated equally under
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rent control," stated Rubenstein.
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First Amendment law is also an area of major concern in the
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post-Hardwick era. In addition to the BenShalom case, the
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Project is involved in several other major cases which seek to
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protect speech about gay and lesbian issues. In GMHC v. Sulli-
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van, the Project represents a number of AIDS service organiza-
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tions in a challenge to the Helms Amendment. The Amendment,
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passed in the U.S. Senate by a lopsided vote in 1987, forbids the
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Centers for Disease Control from using any AIDS education money
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"to promote or encourage, directly, homosexuality."
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"We believe the Amendment is a content-based restriction on
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speech which is unconstitutional," said Hunter, who is counsel
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for the plaintiffs in the case together with the Center for
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Constitutional Rights. "The Amendment will have the tragic
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effect of diminishing the quality and quantity of education which
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is needed to save lives," Hunter added.
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The Helms Amendment challenge is pending in federal court in
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the Southern District of New York. Since the case was first
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filed last October, the state of New York has joined as an
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additional plaintiff.
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The Project also filed an amicus brief this spring in a
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case challenging another Congressional restriction on gay-related
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speech, the Armstrong Amendment. That amendment, which seeks to
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overturn the victory in a discrimination case brought by a gay
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student group against Georgetown University, permits religious
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institutions in the District of Columbia to discriminate against
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persons who advocate for gay rights, notwithstanding the Dis-
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trict's gay rights bill. The ACLU's amicus brief argued that
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the amendment violates the First Amendment rights of persons gay
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and straight who speak or protest in favor of equal rights for
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gay persons. The ACLU brief also argues that the law is an
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indirect method of removing civil rights protections in D.C. for
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gay students or staff at religiously-affiliated schools.
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"Because the new law would allow penalties to be imposed
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against anyone who condones homosexuality, it could operate to
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sweep away anti-discrimination protections for gay and lesbian
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persons at certain colleges," noted Hunter. The Armstrong
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Amendment case was argued April 20 before the United States Court
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of Appeals for the District of Columbia Circuit.
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"These cases illustrate the extraordinary extent to which
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lesbian and gay civil rights issues now constitute some of the
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most exciting constitutional questions in our legal system,"
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Hunter said. "Whatever the next round of decisions brings,
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judges are increasingly aware that these are some of the most
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serious and important issues they will face."
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# # #
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For further information contact:
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Nan D. Hunter, (212) 944-9800, x545
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William Rubenstein, (212) 944-9800, x544
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