Sunday, 31 May 2009

High Court decides as to what is habitual place of residence under Hague Convention http://ow.ly/ab2g
Man who fathered 21 kids by 12 women and has problems with child support may go to jail: Smoking Gun http://ow.ly/aal5
Australia's only transgendered clinic is temporarily shut down amidst claims that patients were wrongly diagnosed/operated http://ow.ly/a9Oc

Australia's only transgender clinic "shut down"

Fairfax is reporting that Australia's only sex change clinic has been shut down temporarily, with reports that half of the patients diagnosed as transgendered had borderline personality disorder and should never have been operated on.

The claims come on top of claims by a former patient who says that she was misdiagnosed as male, and is seeking for the founder to be censured by Victorian medical authorities, as reported in the Australian.

The claims clearly highlight the potential risks for both doctors and patients in undertaking the procedures.

Saturday, 30 May 2009

Consultant to Family Court's report due this week about family consultants and registrars http://ow.ly/9Z15
Looks like full steam ahead for New Hampshire same sex marriage laws http://ow.ly/a0g8
What rules will apply in the post-merged Federal Magistrates Court? http://ow.ly/9Z48
Opposition may not support cutting up of Federal Magistrates Court: Sen. Brandis http://ow.ly/9Z2a
75 complaints were made against Family Court judges last year http://ow.ly/9YZ7
Complaints about the Family Court- Senate estimates hearing http://ow.ly/9Xsl
The child support blues: 21 kids to 11 mums, child support only goes so far: news.com.au http://ow.ly/9Xny
All of New England now? Rhode Island considers same sex marriage http://ow.ly/9Wlm

Wednesday, 27 May 2009

California Supreme Court Rejects Prop 8 Legal Challenge

American LGBT groups have reacted with anger and disappointment to the decision of the California Supreme Court to throw out the challenge to Prop 8.

Proposition 8 was the referendum passed last year by a majority of California voters that overturned the earlier decision of the California Supreme Court in the California Marriage Case that validated same sex marriages.

In the latest case, the Supreme Court held that the 18,000 same sex marriages held between the earlier decision and Prop 8 passing were valid, which gay rights activists have labelled a hollow victory.

The court held 6 to 1 that invalidating these marriages would have the effect of "throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court."
The decision is no surprise. I was able to watch the oral arguments some months ago on the internet. What was apparent to me and other legal commentators at the time, was that from the comments of the judges, this result was the most likely- Prop 8 would be upheld but existing same sex marriages would be validated.
There was an angry demonstration in San Francisco following the decision, resulting in 150 arrests
It is likely that the obvious anger in the LGBT community in California about the decision will galvanise people to organise their own referendum to alter the California Constitution to legalise same sex marriage there.
Pictures of the protests, anger in San Francisco thanks to @gaymarriagewatch http://ow.ly/9o1N
@vpynchon Thanks for retweeting me about California Supreme Ct decision. In light of oral comments made by the judges outcome was inevitable
@lgbtnetwork Thanks for retweeting me about NSW same sex adoptions
As I expected, Calif Supreme Ct upholds Prop 8, but validates prior same sex marriages. New: Huffington Post http://ow.ly/9n9c
Queensland researchers looking into police response to domestic violence: http://ow.ly/9h8p
Stepdad jailed for 8 years for shaking de facto's 19 day old baby to death: Fairfax http://ow.ly/9hbR

Tuesday, 26 May 2009

NSW to abandon same sex adoptions, do a deal with Fred Nile: Fairfax http://ow.ly/9haU

NSW to abandon same sex adoptions: Fairfax

Fairfax media is reporting that in order to get Fred Nile's agreement to other legislation, the NSW Labor Government is dumping its support of same sex adoption.

Fred Nile is remembered of course for his long held antipathy to the LGBT community, being around as long as Mardi Gras.

For the original article, click here.

NSW now joins Qld in its opposition to same sex adoption.
Federal Magistrates Court reminder about court forms http://ow.ly/9gNX
Family Court: Obligations of parents in children's matters http://ow.ly/9gNo
Twitter: clarinette02 aint no spammer- please restore ASAP #putitback

Monday, 25 May 2009

De facto husband on murder charge says dead wife was domestically violent, controlling to him: Australian http://ow.ly/94ac
RT @yero69: Queer Coalition Queensland planning meeting Brisbane 6.30pm 27/05/09 - won't be there, but let me know if they need my help
Calif Supreme Ct deciding Prop 8 challenge Tues: My betting:ct will uphold Prop 8, but validate same sex marriages made before Prop 8 passed
@SandraSingerEsq And not only has Bahrain had one domestic violence conference- they've got another happening in July. They're on a roll!
@yero69 Thanks for the compliment: "top legal tweets" :)
@rodrub Thanks for the retweet!
Brisbane Central Leads Club: this month's mixer is on Thursday night http://ow.ly/8GvG

Sunday, 24 May 2009

Family Court - case setting out useful list of matters in orders for returning child under Hague Convention to US http://ow.ly/8QDO
This week's speakers at Brisbane Central Leads Club http://ow.ly/8Gn2
Family Court: adjournment of appeal allowed when judge's reasons not available for 8 months after they were delivered http://ow.ly/8OY2
Family Court- allegation by wife that husband had "agreement" to get interets in family motel not enough http://ow.ly/8QCL
Bahrain tackles domestic violence: http://ow.ly/8QZv Thanks to @parentingcrazy
German couple face surrogacy nightmare from India, kids and parents stuck in red tape mess http://ow.ly/8QUz Thanks to @surrogate

German couple face surrogacy mess in India

The Times of India is reporting of red tape preventing a German couple trying to get their twins home from India.

The problem appeared that the wife did not have an egg available for the clinic, so an egg was "borrowed" from an unknown source, before being implanted in the surrogate. The result? The twins born as a result of the surrogacy have no stated mother on their birth certificate.

The problem became obvious when the German couple went to move to the UK. The UK refused to allow the twins to move there because the children's names were those of the wife, but no mother was shown on the birth certificate. To make it worse, because the father was German, the children were not Indian citizens either.

The couple are now trying to clear things up through Indian courts, but as a warning sign to others seeking to use Indian surrogacy centres, all are hampered by there being a lack of law. The court has requested that the Government issue identity certificates for the children. Whether the Government will do this, and whether this will solve the problem, is not known.
Family Court: leave to appeal from WA requires 3 judges http://ow.ly/8OYc
Family Court has commented on possible different position of third parties on costs http://ow.ly/8OXO

Saturday, 23 May 2009

Family Court case: being lesbian irrelevant to best interest test for children: http://ow.ly/8GZa

Family Court case: when being gay or lesbian is irrelevant

In the last few days, my attention was drawn to a decision of the Family Court from last year, Wells and Roberts (No 2). This was a case concerning the care of children, and whether they should see their father in the UK. The father had not filed relevant documentation for the trial.

What struck me when I read the judgment was what it didn't say. This is the relevant passage from the judgment:


The mother lives in Sydney with her partner, Ms M, who is 55 years of age. The
mother and Ms M have been in a relationship since late 2003. Ms M has three
sons, aged 28, 26, and 24; two of whom live in Australia.


That's it. Nothing was said that the mother and Ms M were in a lesbian relationship. Nothing was said that was in any way critical of that relationship. Ms M only gained one further mention in the judgment, when she was described as the mother's witness.

What was particularly striking about this passage was that there was no issue about the sexual orientation of the mother and her partner, and the focus of the case was where it should have been - what was in the best interests of the children, without being hung up on preconceptions and prejudice.
Recent speakers at Brisbane Central Leads Club http://ow.ly/8Gk7

View from the office

Brisbane River: picture perfect from the office today on Twitpic

Sometimes you get those moments when you look outside and are struck by the beauty. A day after flooding rains, this is how the Brisbane River looked yesterday morning from the office. Too good not to capture.

Wednesday, 20 May 2009

Brisbane Lord Mayor Campbell Newman launches 2009 CEO Challenge race http://ow.ly/81IQ
France removes transsexualism as a psychiatric disorder, the first country to do so http://ow.ly/81Eq

France removes transsexualism as a psychiatric disorder

In an historic decision, France has decided to declare that transsexualism is no longer a psychiatric disorder, becoming the first country to do so.

France did so in part because to continue to follow the World Health Organisation classification that transsexualism was a disorder was seen as stigmatising.

By contrast, the mental health Bible, the Diagnostic and Statistical Manual 4th revised edition, or DSM IVR, classifies transsexualism, or gender dysphoria, as a psychiatric disorder.

For the original article, in French, click here.

Monday, 18 May 2009

Over 32,000 protection orders were made in Qld last year, based on 23,000+ applications: Qld Chief Magistrate Brendan : http://ow.ly/7xtR

Sunday, 17 May 2009

Children much more likely to be harmed by domestic violence than "mythical" men in white vans: criminologists: ABC http://ow.ly/7jr1
Parallels with Australia: aboriginal domestic violence in Canada http://ow.ly/7aKx

Saturday, 16 May 2009

US court rules: AIDS may not be disabling http://ow.ly/7bcy

US court rules: AIDS may not be disabling

Disability insurers may be able to cut off benefits to those with AIDS, a US court has ruled.
Charles Jenkins contracted HIV in 1988 and in 1993 stopped work for Price Waterhouse Coopers due to AIDS. He received disability insurance benefits.

After Mr Jenkins went on a holiday from the US to London, his insurer looked at his case again, sent him to doctors, decided that he was capable of sedentary employment, and in 2006 stopped paying.

Jenkins sued Price Waterhouse Coopers and the insurer, but was unsuccessful. Ultimately, his case ended up in the 7th Circuit of the US Court of Appeals. The case was brought under the US
Employee Retirement Income Security Act, to challenge the decision of the insurer.

The court stated[PDF] that the insurer could make the decision it had made based on the evidence, and:

Nevertheless, Jenkins suggests that it is impossible to reconcile the initial
determination of disability with the later decision that he could attempt full-time sedentary employment. At best, Jenkins argues, the evidence showed that his condition was stable. If that condition was grave enough to warrant disability in 1994, why wasn’t it sufficient in 2006?


But Jenkins fails to recognize what [the insurer] (and the general population, it seems) thought HIV and AIDS meant in the early 1990s. That impression was that HIV (and certainly AIDS) brought rapid death. Thankfully, the prognosis has
changed—in large measure due to new drugs—both for Jenkins and countless others.
It was not “downright unreasonable” for [the insurer] to shift its position along with that change when the medical evidence supported it.


The court had further comments about the state of HIV/AIDS:




When HIV (the virus that causes AIDS) was first reported in the United States in the early 1980s, it was viewed as a death sentence, and a quick one at that. That was probably an exaggeration, but not a ridiculous one. See Andrew Sullivan, Fighting the Death Sentence, N.Y. Times, Nov. 21, 1995, at A21 (discussing the state of
HIV/AIDS treatment and society’s view of the disease in the early years). Without treatment, a person who is HIVpositive lives on average only 11 years after infection. World Health Organization & UNAIDS, AIDS Epidemic Update, at 10 (December 2007), available at http://data.unaids.org/pub/EPISlides/2007/2007_epiupdate_en.pdf .

But new medicines (where available[Sub-Saharan Africa being a tragic exception.]) have slashed the death rate and raised the life expectancy of a diagnosed individual dramatically. “A patient diagnosed at 20 today can expect to live to nearly 70, research shows. At 35—the average age of diagnosis in the UK—life expectancy is over 72.” Jeremy Laurance, New Drugs Raise Life Expectancy of HIV Sufferers by 13 Years, The No. 08-1909 32

Another long-time victim of HIV was on national display over the last several weeks. Three decades ago, in a game universally recognized as having changed the face of college basketball, the Michigan State Spartans, ed by Earvin “Magic” Johnson, beat Larry Bird and the Sycamores of Indiana State to win the 1979 NCAA basketball championship. Magic Johnson, of course, went on to a brilliant professional career with the Los Angeles Lakers. But in 1991, at the age of 32, he publicly announced that he had HIV. Yet there he was over the last several weeks, with his famous smile ablazing, rooting on the Spartans as they made it into the championship game of the 2009 NCAA Basketball Tournament. In his post-basketball life he formed the Magic Johnson Foundation which is dedicated to combating HIV. Independent (July 25, 2008). So, while HIV remains a grave disease—and no cure has yet been found—things have improved. Jenkins is hopefully benefitting from these advances.

In a footnote, the court stated:

We don’t mean to oversimplify or trivialize Jenkins’s disease. AIDS is a scourge, and a complicated one at that. For instance, there is question about the significance of T-cell and viralburden figures, particularly when pharmaceuticals are in the equation. See, e.g., Elinor Burkett, The Gravest Show on Earth: America in the Age of AIDS, at xv (Picador 1996) (“Scientists have become increasingly skeptical about the value of drug induced increases in T cells, since a number of studies have suggested that
while the natural level of T cells are good predictors of the progress of AIDS, drug-provoked increases to do not correlate to longer life.”). Fortunately, we need not
understand every detail about AIDS or how it has affected Jenkins’s life. We simply have to discern whether CGLIC’s conclusion was rational.

Thursday, 14 May 2009

Brisbane man accused of de facto's murder : Brisbane Times http://ow.ly/6Pcu
Family Court has released standard directions http://ow.ly/6Omx

Tuesday, 12 May 2009

Centrelink page for same sex couples contemplating change from 1 July: http://ow.ly/6pl7

Monday, 11 May 2009

Women who make false allegations should pay all the costs: Shared Parenting Council: Australian http://ow.ly/6bBw
Family Court judges to miss out on pay increase for Federal, High Court judges: Australian http://ow.ly/6byC
Woman disputes gender advice which led her to double mastectomy, hormones to become a man http://ow.ly/6by8

Sunday, 10 May 2009

National Families Week: http://ow.ly/645V
Child support rules for negative gearing change on 1 July: http://ow.ly/645R

Thursday, 7 May 2009

Maine allows same sex marriage: 5th US State to do so

The US state of Maine has now legislated to allow same sex marriage, now the 5th US State to do so. Maine is the most northerly of the north-eastern New England states.



The other States now are:

  • Massachusetts (court ruling) (also New England)

  • Iowa (court ruling) (midwest)

  • Vermont (legislation, overturning previous civil union regime) (also New England)

  • Connecticut (court ruling, now backed up by legislation, overturning previous civil union regime)(also New England)


    Where is Maine?


    View Larger Map
  • Wednesday, 6 May 2009

    Human rights toolkits at the human rights commission, including for LGBT people: http://ow.ly/5nrh
    Summary of the Commonwealth Govt's same sex reforms can be found here http://ow.ly/5nqN
    My prepared speech for Politics in the Pub: same sex marriage http://ow.ly/5npK

    Politics in the pub: same sex marriage

    Through the wonders of IT, here is the speech I prepared for last week's Politics in the Pub debate about Same Sex Marriage:

    Politics in the pub: Same sex marriage


    I have been asked to speak for 10 minutes about same sex marriage. To be able to say what the concept is, it’s necessary to look at the options available to heterosexual people:

    • Be single/ dating style relationship
    • Live in a de facto relationship
    • Be married

    What are the options for gay and lesbian people:
    • Be single/dating style relationship
    • Live in a de facto relationship

    The option of marriage, as recognised in Australian law, is not available to gay and lesbian couples. The Marriage Act requires couples to be one man and one woman., although one of these can be transgendered and identify as male or female for that purpose.

    In Australia there has been a process of relationship registries set up so that gay and lesbian couples can have their relationship recognised at some level. Relationship registries have been established in Tasmania, the ACT and Victoria, and the City of Sydney, but there is not talk of one happening in Queensland.

    If a couple have registered their relationship, then that registration is a matter to be taken into account under the Family Law Act as to whether or not there was a de facto relationship for the purposes of property settlement.

    The Federal Parliament can legislate for marriage. Because the definition of marriage is between one man and one woman, to the exclusion of all others, it has been argued by some, including Professor George Williams, a prominent constitutional lawyer, that a State, such as Queensland, could legislate for same sex marriage.

    Why can’t gay and lesbian couples get married?

    It’s a political question, not a legal one, but I thought I would address some overseas trends.
    In various jurisdictions civil unions have been adopted, presumably because they are seen as more palatable by politicians, and then junked, because they are seen as discriminatory. To use the phrase that was junked by the US Supreme Court in Brown v Board of Education “separate but equal” is not that- separate is unequal.

    This basic premise has been recognised in:
    • Sweden- by its Parliament
    • Vermont- by its legislature, over the veto of the Republican Governor
    • California- by its Supreme Court in the California Marriage case, before Proposition 8 was passed
    • Connecticut- by its Supreme Court last year

    Civil unions v marriage


    Before I outline the American cases, it must be reflected that it is doubtful that these decisions would have been reached in Australia, because we do not have a bill of rights. It is not known how far rights implied under the Commonwealth Constitution extend. They extend to the right of free speech. Whether they extend to the right to marry is a moot point.

    I have referred to the American cases not because they're American, but because they state, or at least purport to state universal values, and they contain powerful arguments, worthy of being listened to. Both Connecticut and California rejected civil unions as opposed to marriage. Iowa dealt most powerfully with all the usual suspects put forward as to why same sex marriage should not occur.

    Connecticut


    The Connecticut Supreme Court last year considered the question of civil unions versus marriage. Connecticut was the second US state to legalise civil unions. Under state law, there was little difference between a civil union and being married, except that one applied to same sex couples and the other applied to straight couples.
    Several couples challenged the law. The Connecticut Supreme Court in November 2008 upheld the challenge, stating that:

    in light of the pernicious [and invidious] discrimination faced by gay
    men and lesbians, and because the institution of marriage carries with it a
    status and significance that the newly created classification of civil unions
    does not, the segregation of heterosexual and homosexual couples into separate
    institutions constitutes a cognizable harm.”
    The court went on to say that
    the state scheme was discriminatory and that the state had failed to provide
    sufficient justification as to why same sex couples were excluded from the
    institution of marriage.


    The defendants argued:


    There was no discrimination- the couples had all the rights that married couples had; and
    Marriage has been recognised from time immemorial as being between one man and one woman.


    The court held that the legislature had permitted same sex couples all the rights, except one:

    the right to marry, a right that has “long been recognised as one of the
    vital personal rights essential to the orderly pursuit of happiness by free men
    [and women] and fundamental to our very existence and survival” – citing Loving
    v Virginia.


    Since the case, the Connecticut Legislature has in the last week legislated for same sex marriage.

    The California Marriage Case


    California had and has a domestic partnership scheme under the Domestic Partnership Act. The challenge in the California Marriage Case was that same sex couples should have been allowed to marry.


    Ultimately in May 2008 the California Supreme Court upheld the right of same sex couples to marry. The majority did this when, as in Connecticut, the domestic partnership had all the effects and benefits as marriage, except one- the ability to marry:


    We conclude that, under this state’s Constitution, the constitutionally based
    right to marry properly must be understood to encompass the core set of basic
    substantive legal rights and attributes traditionally associated with marriage
    that are so integral to an individual’s liberty and personal autonomy that they
    may not be eliminated or abrogated by the Legislature or by the electorate
    through the statutory initiative process. These core substantive rights
    include, most fundamentally, the opportunity of an individual to establish –
    with the person with whom the individual has chosen to share his or her life –
    an officially recognised and protected family possessing mutual rights and
    responsibilities and entitled to the same respect and dignity accorded a union
    traditionally designated as marriage. As past cases establish, the
    substantive right of two adults who share a loving relationship to join together
    to establish an officially recognised family of their own – and, if the couple
    chooses, to raise children within that family – constitutes a vitally important
    attribute of the fundamental interest in liberty and personal autonomy that the
    California constitution secures to all persons for the benefit of both the
    individual and society.

    Furthermore, in contrast to earlier times,
    our state now recognizes that an individual’s capacity to establish a loving and
    long-term committed relationship with another person and responsibly to care for
    and raise children does not depend upon the individual’s sexual orientation,
    and, more generally, that an individual’s sexual orientation – like a person’s
    race or gender – does not constitute a legitimate basis upon which to deny or
    withhold legal rights. We therefore conclude that in view of the substance
    and significance of the fundamental constitutional right to form a family
    relationship, the California Constitution properly must be interpreted to
    guarantee this basic civil right to all Californians, whether gay or
    heterosexual and to same-sex couples as well as to opposite-sex
    couples….

    “Marriage” as opposed to some other nomenclature.
    The Attorney General, observing that fundamental constitutional rights generally
    are defined by substance rather than by form, reasons that so long as the state
    affords a couple all of the constitutionally protected substantive incidents of
    marriage, the state does not violate the couple’s constitutional right to marry
    simply by assigning their official relationship a name other than
    marriage. Because the Attorney General maintains that California’s current
    domestic partnership legislation affords same-sex couples all of the core
    substantive rights that plausibly may be guaranteed to an individual or couple
    as elements of the fundamental state constitutional right to marry, the Attorney
    General concludes that the current California statutory scheme relating to
    marriage and domestic partnership does not violate the fundamental
    constitutional right to marry embodied in the California Constitution.


    We need not decide in this case whether the name “marriage” is invariably a core
    element of the state constitutional right to marry so that the state would
    violate a couple’s constitutional right even if – perhaps in order to emphasize
    and clarify that this civil institution is distinct from the religious institution of marriage – the state were to assign an name other than marriage as the official designation of the formal family relationship for all couples. Under the current statues, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership). One of the core elements of the right to establish an
    officially recognised family that is embodied in the California constitutional
    right to marry is a couple’s right to have their family relationship accorded
    dignity and respect equal to that accorded other officially recognised families,
    and assigning a different designation for the family relationship of same-sex
    couples while reserving the historic designation of “marriage” exclusively for
    opposite-sex couples poses at least a serious risk of denying the family
    relationship of same-sex couples such equal dignity and respect. We
    therefore conclude that although the provisions of the current domestic
    partnership legislation afford same-sex couples most of the substantive elements
    embodied in the constitutional right to marry, the current California statutes
    nonetheless must be viewed as potentially impinging upon a same-sex couple’s
    constitutional right to marry under the California Constitution.


    A number of factors lead us to this conclusion. First, the exclusion of same-sex
    couples from the designation of marriage clearly is not necessary in order to
    afford full protection to all of the rights and benefits that currently are
    enjoyed by married opposite-sex couples; permitting same-sex couples access to
    the designation of marriage will not deprive opposite-sex couples of any rights
    and will not alter the legal framework of the institution of marriage, because
    same-sex couples who choose to marry will be subject to the same obligations and
    duties that currently are imposed on married opposite-sex couples. Second,
    retaining the traditional definition of marriage and affording same-sex couples
    only a separate and differently named family relationship will, as a realistic
    matter, impose appreciable harm on same-sex couples and their children, because
    denying such couples access to the familiar and highly favoured designation of
    marriage is likely to cast doubt on whether the official family relationship of
    same-sex couples enjoys dignity equal to that of opposite-sex couples.
    Third, because of the widespread disparagement that gay individuals historically
    have faced, it is all the more probably that excluding same-sex couples from the
    legal institution of marriage is likely to be viewed as reflecting an official
    view that their committed relationships are of lesser stature than the
    comparable relationships of opposite –sex couples. Finally, retaining the
    designation of marriage exclusively for opposite- sex couples and providing only
    a separate and distinct designation for same-sex couples may well have the
    effect of perpetuating a more general premise – now emphatically rejected by
    this state – that gay individuals and same-sex couples are in some respects
    “second-class citizens” who may, under the law, be treated differently from and
    less favourably than, heterosexual individuals or opposite-sex couples.


    Under these circumstances, we cannot find that retention of the traditional
    definition of marriage constitutes a compelling state interest.
    Accordingly, we conclude that to the extent the current California statutory
    provisions limit marriage to opposite-sex couples, these statutes are
    unconstitutional.

    Since the case, Proposition 8 passed by a majority to outlaw same sex marriages. Proposition 8 has been challenged in the California Supreme Court. It is likely to be upheld, except as it attempts to ban existing same sex marriages entered into before it was passed.

    Iowa
    The Iowa Supreme Court upheld the right of same sex couples to marry. This decision was intellectually the most powerful of the three, and I conclude with the judges' words, given the power of those words.

    Several couples sought to be married. The local registry office, run by Polk County, rejected them, because they were same sex couples. The couples took the county to court, ultimately ending up in the Supreme Court.


    The arguments of the county officials for rejecting same sex marriage were:

    • Promoting procreation
    • Promoting child rearing by a mother and a father within a marriage
    • Promoting stability in opposite sex relationship to raise and nurture children
    • Conservation of State resources- ie if same sex marriages are allowed, it would burden the state further
    • The governmental interest in promoting the concept and integrity of the traditional notion of marriage


    The Iowa Supreme Court by a unanimous verdict rejected all these arguments.


    Children rearing


    The plaintiffs produced evidence to demonstrate sexual orientation and gender
    have no effect on children raised by same-sex couples, and same-sex couples can
    raise children as well as opposite-sex couples. They also submitted
    evidence to show that most scientific research has repudiated the commonly
    assumed notion that children need opposite-sex parents or biological parents to
    grow into well-adjusted adults. Many leading organisations, including the
    American Academy of Paediatrics, the American Psychiatric Association, the
    American Psychological Association, the National Association of Social Workers,
    and the Child Welfare League of America, weighed the available research and
    supported the conclusion that gay and lesbian parents are as effective as
    heterosexual parents in raising children.

    For example, the official policy of the American Psychological Association
    declares, “There is no scientific evidence that parenting effectiveness is
    related to parental sexual orientation: Lesbian and gay parents are as
    likely as heterosexual parents to provide supportive and healthy environments
    for children. Almost every professional group that has studied the issue
    indicates children are not harmed when raised by same-sex couples, but to the
    contrary, benefit from them. In Iowa, agencies that license foster parents
    have found same-sex couples to be good and acceptable parents. It is
    estimated that more than 5800 same-sex couples live throughout Iowa, and over
    one-third of these couples are raising children.

    It is true the
    marriage statute does not expressly prohibit gay and lesbian persons from
    marrying; it does, however, require that if they marry, it must be to someone of
    the opposite sex. Viewed in the complete context of marriage, including
    intimacy, civil marriage with a person of the opposite sex is as unappealing to
    a gay or lesbian person as civil marriage with a person of the same sex is to a
    heterosexual. Thus, the right of a gay or lesbian person under the
    marriage statute to enter into a civil marriage only with a person of the
    opposite sex is no right at all. Under such a law, gay or lesbian
    individuals cannot simultaneously fulfil their deeply felt need for a
    committed personal relationship, as influenced by their sexual orientation, and
    gain the civil status and attendant benefits granted by the statute.
    Instead, a gay or lesbian person can only gain the same rights under the statute
    as a heterosexual person by negating the very trait that defines gay and lesbian
    people as a class – their sexual orientation.
    In re Marriage Cases,
    183 P.3d at 441. The benefit denied by the marriage statute – the status
    of civil marriage for same-sex couples – is so “closely correlated with being
    homosexual” as to make it apparent the law is targeted at gay and lesbian people
    as a class.


    By purposefully placing civil marriage outside the realistic reach of gay
    and lesbian individuals, the ban on same-sex marriages differentiates implicitly
    on the basis of sexual orientation.. See Kerrigan, 957 A.2d at 431…


    1. History of discrimination against gay and lesbian people.
    The first consideration is whether gay and lesbian people have suffered a
    history of purposeful unequal treatment because of their sexual
    orientation. The County does not, and could not in good faith,
    dispute the historical reality that gay and lesbian people as a group have long
    been the victim of purposeful and invidious discrimination because of their
    sexual orientation. The long and painful history of discrimination against
    gay and lesbian persons is epitomised by the criminalisation of homosexual
    conduct in many parts of this country until very recently. See Lawrence,
    539 U.S. at
    578-79.

    2. Sexual orientation and the ability to contribute to
    society.
    A second relevant consideration is whether the
    characteristic at issue – sexual orientation – is related to the person’s
    ability to contribute to society. Heightened scrutiny is applied when the
    classification bears no relationship to a person’s ability to contribute to
    society. The existence of this factor indicates the classification
    is likely based on irrelevant stereotypes and prejudice. Kerrigan, 957 A.2d
    at 453. …

    In this case, the County acknowledges sexual
    orientation is highly resistant to change. Additionally, “sexual
    orientation forms a significant part of a person’s identity”. Kerrigan,
    957 A.2d at 438 (quoting Able v. United States, 968 F.Supp. 850, 863 (E.D.N.Y.
    1997), rev’d on other grounds, 155 F.3d 628 (2d Cir.1998). Sexual
    orientation influences the formation of personal relationships between all
    people – heterosexual, gay, or lesbian – to fulfil each person’s fundamental
    needs for love and attachment. Accordingly, because sexual orientation is
    central to personal identity and “may be altered [if at all] only at the expense
    of significant damage to the individual’s sense of self,” classifications based
    on sexual orientation “are no less entitled to consideration as a suspect or
    quasi-suspect class than any other group that has been deemed to exhibit an
    immutable characteristic”. Id. At 438-39 (quoting Jantz v. Muci, 759 F.
    supp. 1543.
    It is also important to observe that the political power of gays
    and lesbians, while responsible for greater acceptance and decreased
    discrimination, has done little to remove barriers to civil marriage.
    Although a small number of state legislatures have approved civil unions for gay
    and lesbian people without judicial intervention, no legislature [although since
    this decision, Vermont has now so legislated]
    has secured the right to civil
    marriage for gay and lesbian people without court order.
    The
    Governmental interest in traditional notions of marriage
    This precise
    situation is presented by the County’s claim that the statute in this case
    exists to preserve the traditional understanding of marriage. The
    governmental objective identified by the County – to maintain the traditional
    understanding of marriage – is simply another way of saying the governmental
    objective is to limit civil marriage to opposite-sex couples. Opposite-sex
    marriage, however, is the classification made under the statute, and this
    classification must comply with our principles of equal protection. Thus,
    the use of traditional marriage as both the governmental objective and the
    classification of the statute transforms the equal protection analysis into the
    question of whether restricting marriage to opposite-sex marriage.
    This
    approach is, of course, an empty analysis. It permits a classification to
    be maintained “for its own sake”. Kerrigan, 957 A.2d at 478 (quoting
    Romer, 517 U.S. at 635, 116 S.Ct. at 1629, 134 L.Ed. 2d at 478 (quoting romer,
    517 U.S. at 635, 116 S.Ct. at 1629, 134 L.Ed. 2d at 868). Moreover, it can
    allow discrimination to become acceptable as tradition and helps to explain how
    discrimination can exist for such a long time. If a simple showing that
    discrimination is traditional satisfies equal protection, previous successful
    equal protection challenges of invidious racial and gender classifications would
    have failed. Consequently, equal

    We begin with the County’s
    argument that the goal of the same-sex marriage ban is to ensure children will
    be raised only in the optimal milieu. In pursuit of this objective, the
    statutory exclusion of gay and lesbian people is both under-inclusive and
    over-inclusive. The civil marriage statute is under-inclusive because it
    does not exclude from marriage other groups of parents-such as child abusers,
    sexual predators, parents neglecting to provide child support, and violent
    felons – that are undeniably less than optimal parents. Such
    under-inclusion tends to demonstrate that the sexual-orientation-based
    classification is grounded in prejudice or “overbroad generalizations about the
    different talents, capacities, or preferences” of gay and lesbian people, rather
    than having a substantial relationship to some important objective. See
    Virginia, 518 U.S. at 533, 116
    The ban on same-sex marriage is substantially
    over-inclusive because not all same-sex couples choose to raise children.
    Yet, the marriage statute denies civil marriage to all gay and lesbian people in
    order to discourage the limited number of same-sex couples who desire to raise
    children. In doing over and under-inclusivness of the statute reveals it
    is less about using marriage to achieve an optimal environment for children and
    more about merely precluding gay and lesbian people from civil marriage.
    If
    the statute was truly about the best interest of children, some benefit to
    children derived from the ban on same-sex civil marriages would be
    observable. Yet, the germane analysis does not show how the best interests
    of children of gay and lesbian parents, who are denied an environment supported
    by the benefits of marriage under the statute, are served by the ban.
    Likewise, the exclusion of gays and lesbians from marriage does not benefit the
    interests of those children of heterosexual parents, who are able to enjoy the
    environment supported by marriage with or without the inclusion of same-sex
    couples.


    The ban on same-sex civil marriage can only logically be justified
    as a means to ensure the asserted optimal environment for raising children
    if fewer children will be raised within same-sex relationships or more children
    will be raised in dual-gender marriages. Yet, the same-sex marriage ban
    will accomplish these outcomes only when people in same-sex relationships choose
    not to raise children without the benefit of marriage or when children are
    adopted by dual-gender couples who would have been adopted by same-sex couples
    but for the same-sex civil marriage ban. We discern no substantial support
    for this proposition. These outcomes, at best, are minimally advanced by
    the classification. Consequently, a classification that limits civil
    marriage to opposite-sex is simply not substantially related to the objective of
    promoting the optimal environment to raise children. This conclusion
    suggests stereotype and prejudice, or some other unarticulated reason, could be
    present to explain the real objectives of the statute.

    Promotion of
    procreation. The County also proposes that government endorsement of
    traditional civil marriage will result in more procreation. It points out
    that procreation is important to the continuation of the human race, and
    opposite-sex couples accomplish this objective because procreation occurs
    naturally within this group. In contrast, the County points out, same-sex
    couples can procreate only through assisted reproductive techniques, and some
    same-sex couples may choose not to procreate. While heterosexual marriage
    does lead to procreation, the argument by the County fails to address the real
    issue in our required analysis of the objective: whether exclusive of gay
    and lesbian individuals from the institution of civil marriage will result in
    more procreation? If procreation is the true objective, then the proffered
    classification must work to achieve that objective.

    Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage. Gay and
    lesbian persons are capable of procreation. Thus, the sole conceivable
    avenue by which exclusion of gay and lesbian people from civil marriage could
    promote more procreation is if the unavailability of civil marriage for same-sex
    partners caused homosexual individuals to “become” heterosexual in order to
    procreate within the present traditional institution of civil marriage.
    The briefs, the record, our research, and common sense do not suggest such an
    outcome. Even if possibly true, the link between exclusion of gay and
    lesbian people from marriage and increased procreation is far too tenuous to
    withstand heightened scrutiny. ...


    Promoting stability in opposite-sex relationships. A fourth suggested rational supporting the marriage statute is “promoting stability in opposite sex relationships”. While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective.

    Conservation of Resources. The conservation of state resources is another objective arguably furthered by excluding gay and lesbian persons from civil marriage. The argument is based on a simple premise: couples who are married enjoy numerous governmental benefits, so the state’s fiscal burden associated with civil marriage is reduced if less people are allowed to marry. In the common sense of the word, then, it is “rational” for the legislature to seek to conserve state resources by limiting the number of couples allowed to form civil marriages. By way of example, the County hypothesizes that, due to our laws granting tax benefits to married couples, the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage. Certainly,
    Iowa’s marriage statute causes numerous government benefits, including tax
    benefits, to be withheld from plaintiffs. Thus, the ban on same-sex marriages may conserve some state resources. Excluding any group from civil marriage-African-Americans, illegitimates, aliens, even red-haired individuals – would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.

    Religious Opposition to Same-Sex Marriage.
    Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County’s silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.


    While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling. Consequently, we address the religious undercurrent propelling the same-sex debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute.


    It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better
    identifies the source of the opposition. Whether expressly or impliedly,
    much of society rejects same-sex marriage due to sincere, deeply ingrained –even
    fundamental – religious belief.


    As a result, civil marriage must be judged under our constitutional standard of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our
    constitution immeasurably by trying to do more.


    In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage – religious or otherwise – by giving respect to our constitutional
    principles. These principles require that the state recognise both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will
    now take on a new meaning that reflects a more complete understanding of equal
    protection of the law.

    Mother jailed for denying access to boy's dad: Australian http://ow.ly/5n9q

    Tuesday, 5 May 2009

    Federal Magistrates Court to be merged and split between Family and Federal Courts: Federal Mags to be tier 2 judges http://ow.ly/5bvV
    100th couple uses Victoria's relationship registry: http://ow.ly/51rP

    Monday, 4 May 2009

    Mother sent back frm Aus to UK under Hague order murdered by her ex. He has now been convicted, abused her family: Fairfax http://ow.ly/51MI
    National push to change Family Law Act, overturn some of the 2006 amendments: Fairfax http://ow.ly/51lq
    NSW Government helps victims of domestic violence stay at home, rather than be homelss: Fairfax: http://ow.ly/51kc
    Family Court chief says Family Law Act prevents women from raising domestic violence issues; Act ought be changed/Fairfax http://ow.ly/51go
    Family Court chief says Family Law Act prevents women from raising domestic violence issues; Act ought be changed/Fairfax http://ow.ly/51cO
    Family Court allows 17 year old girl to remove breasts http://ow.ly/4YWY

    Court allows girl, 17 to remove breasts

    The Age is reporting that the Family Court has allowed a 17 year old girl, called Alex, to have a double mastectomy, as Alex has gender dysphoria.

    Alex was the subject of legal controversy 5 years ago when the court allowed Alex to have hormone treatment.

    Sunday, 3 May 2009

    Twitter has been hacked: news.com.au http://ow.ly/4Ryb
    Women's shelter in Alice Springs is like a jail to protect women and kids- but still turned away 200: ABC http://ow.ly/4Rww

    Saturday, 2 May 2009

    Depressing news: 150 children from New South Wales who died were known to child protection services: Australian http://ow.ly/4L9y
    Tasmania: Lawyers call for release of report on domestic violence screening tool: Hobart Mercury http://ow.ly/4L6B
    May is Domestic and Family Violence Prevention Month in Qld- here are the events http://ow.ly/4L4w
    Maine Senate passes marriage equality bill, now to lower house http://ow.ly/4KTx If passed, will be 5th US state to allow same sex marriag