Rhode Island governor vetoes burial rights for domestic partners

[JURIST] Rhode Island Governor Don Carcieri [official profile] vetoed legislation [text, PDF] on Tuesday that would have allowed domestic partners, including those in same-sex relationships, to claim the body of their partner and to make funeral arrangements. Neither domestic partnerships or civil unions are recognized in Rhode Island, and the bill would have required that a same-sex partner produce documentation establishing the nature of the relationship, such as proof of a joint bank account, mortgage, or car registration, and that the relationship had lasted for a year or longer. In his letter to lawmakers [text, PDF] explaining the veto, Carcieri said:

This bill represents a disturbing trend over the past few years of the incremental erosion of the principles surrounding traditional marriage, which is not the preferred way to approach this issue. If the General Assembly believes it would like to address the issue of domestic partnership, it should place the issue on the ballot and let the people of State of Rhode Island decide.

The sponsors of the bill, Senator Rhonda Perry and Representative David Segal [official profiles] have promised to push for an override [AP report] of the veto in the state legislature, where Democrats hold enough seats to make that possible.

The veto of the burial rights bill comes amid a larger battle in Rhode Island over same-sex marriage, which, according to a Brown University poll [press release], has the approval of 60 percent of registered voters in the state. Rhode Island and Maine remain the only two states in New England that do not recognize same-sex marriage. Advocates for same-sex couples have been met with mixed results over the last few years. Legislation to legalize same-sex marriage was vetoed in Maine [JURIST report] last week, but similar legislation was successful in New Hampshire and Vermont [JURIST reports] earlier this year. Legislation to the same end was passed [JURIST report] by the New York State Assembly in May, but has since stalled in the state senate. In April, the Iowa Supreme Court overturned [JURIST report] that state’s ban on same-sex marriage, following the supreme courts of Connecticut, California, and Massachusetts [JURIST reports]. Last November, California voters approved Proposition 8 [JURIST report], making California the first state to outlaw same-sex marriage after legalizing it.

 

JURIST Reports: Montana court rules assisted suicide legal

Andrew Gilmore 

 

[JURIST] The Montana First Judicial District [Montana courts materials] ruled Friday that terminally ill patients in the state have the right to commit physician-assisted suicide. The case, Baxter v. Montana [complaint, PDF] was brought by a number of terminally-ill Montanans, their doctors, andCompassion & Choices [advocacy website], an organization supporting the legalization of physician assisted suicide. In their complaint, the plaintiffs alleged that their right to assisted suicide was guaranteed by the Montana Constitution [text; analysis, PDF], specifically under provisions relating to their rights of privacy, individual dignity, due process, equal protection, and the right to seek safety, health and happiness in all lawful ways. In her opinion, Judge Dorothy McCarter held [AP report] that under the Montana Constitution, terminally ill individuals have the right to die with dignity, and have the right to obtain self-administered medications to hasten death if they find their suffering to be unbearable. McCarter also held that physicians prescribing those medications are protected from homicide prosecution by state protection of the patient’s right to die.

Last month, voters in Washington state approved a ballot initiative [JURIST report] that will allow terminally ill, legally competent adults to obtain lethal prescriptions without exposing themselves, their physicians, or others to criminal penalties. The Washington measure is modeled on neighboring Oregon’s Death with Dignity Act [official materials], enacted in 1997 and upheld [JURIST report] by the US Supreme Court in 2006.

Hannah’s Choice: Saying No to a New Heart

By NANCY GIBBS Time.com

Thursday, Nov. 13, 2008

Hannah Jones, 13, has turned down a lifesaving heart transplant to die at home with her family. (Read full text of article)

FINDLAW: Challenge to California’s Same Sex Marriage Ban as Invalid Constitutional Revision

STRAUSS V. HORTON (Full Text of Petition)
(California Supreme Ct., Nov. 5, 2008) – Six same sex couples, along with Equity California, filed a petition for relief from the recently passed Proposition 8, which sought to change California’s Constitution by adding “only marriage between a man and a woman is valid or recognized in California.” The suit argues that Proposition 8 is an invalid revision, rather than an amendment of California’s Constitution, which cannot be enacted through ballot initiative. Petitioners seek an immediate stay against enforcement of Prop 8 until its validity is determined.

Related Resources
• California Constitution Article 18 on Amending versus Revising the Constitution
• Same-Sex Marriage: A Historical Introduction
• March 2005 California Supreme Court Opinion Recognizing Same Sex Marriage Rights
• FindLaw Special Coverage: Same Sex Marriage

Municipalities File Suit Against CA Prop. 8

Law.com – Fighting Over Voter-Approved Ban on Gay Marriage Puts Squeeze on California’s Chief Justice

 

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Legal groups and three city attorneys asked the California Supreme Court on Wednesday to invalidate Proposition 8, arguing that the voter-approved ban on gay marriage is a constitutional revision that should have been processed through the Legislature, not the ballot box. 

The lawsuit throws the hot-potato issue of same-sex unions back to the high court just six months after four justices infuriated social conservatives by declaring that marriage rights extend equally to both gay and straight couples. And it snares Chief Justice Ronald George, author of the majority opinion in In re Marriage Cases, in a political vise as his scheduled 2010 retention election approaches.

 

The Pleadings and points of law filed by the municipalities can be viewed here.

Backscatter Security Scanner Images

As promised in last week’s class discussion here are some images produced by the most intrusive of the new scanning technology.

 
Here is a news article on the images above.
 

Here is a briefing on the subject from the Electronic privacy Information Center (“EPIC”).

Here is the official Transportation Security Administration information.

Sen. Feingold Criticizes Warrantless Laptop Seaches

[JURIST] US Sen. Russ Feingold (D-WI) [official website] has criticized the Customs and Border Protection’s (CBP) [official website] warrantless searches and seizures of travelers’ laptops and other digital devices at the US border, calling the searches anunacceptable invasion of privacy [hearing materials]. The Supreme Court has held that reasonable suspicion is not necessary to conduct routine searches at the border, but searches of laptops and other digital devices are analogous to more invasive practices such as strip searches, said Feingold, who chairs the Senate Subcommittee on the Constitution [official website]. In his opening statement at a congressional hearing on this issue last week, Feingold said [speech text]:

Ideally, Fourth Amendment jurisprudence would evolve to protect Americans’ privacy in this once unfathomable situation. But if the courts can’t offer that protection, then that responsibility falls to Congress. Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicionless searches of Americans’ laptops and similar devices go too far. Congress should not allow this gross violation of privacy.

For the very latest legal news on Paper Chase, click here. For the latest newsworthy legal documents, video, live webcasts and more, visit JURIST’s home page. 

California Supreme Court Overturns Gay Marriage Ban

The New York Times – Breaking News, World News & Multimedia

By THE ASSOCIATED PRESS1 minute ago

The ruling paves the way for California to become the second state where gay men and lesbians can marry.
Text of the Opinion

Mildred Loving (Loving v. Virginia) Dies

By DIONNE WALKER, Associated Press WriterMon May 5, 4:17 PM ET

RICHMOND, Va. – Mildred Loving, a black woman whose challenge to Virginia’s ban on interracial marriage led to a landmark Supreme Court ruling striking down such laws nationwide, has died, her daughter said Monday.

Peggy Fortune said Loving, 68, died Friday at her home in rural Milford. She did not disclose the cause of death.

“I want (people) to remember her as being strong and brave yet humble — and believed in love,” Fortune told The Associated Press.

Loving and her white husband, Richard, changed history in 1967 when the U.S. Supreme Court upheld their right to marry. The ruling struck down laws banning racially mixed marriages in at least 17 states.

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Read entire article.

4th Dept App Div Declares Canadian Gay Marriage Valid for Benefits in New York

Patricia Martinez v. County of Monroe, 1562 CA 06-02591 (43-05)

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“[A]bsent any New York statute expressing clearly the Legislature’s intent to regulate within this State marriages of its domiciliaries solemnized abroad, there is no positive law in this jurisdiction” to prohibit recognition of a marriage that would have been invalid if solemnized in New York (May, 305 NY at 493 [internal quotation marks omitted]; see also Van Voorhis, 86 NY at 37). The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exception to the general rule of foreign marriage recognition is not applicable in this case.

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” (May, 305 NY at 493), and that cannot be said here.

Defendants nevertheless contend that recognition of plaintiff’s same-sex marriage is contrary to the public policy of New York, as articulated by the Court of Appeals in Hernandez v Robles (7 NY3d 338), and thus falls within an exception to the rule requiring recognition of valid foreign marriages. We reject that contention. Hernandez does not articulate the public policy for which it is cited by defendants, but instead holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York (see id. at 356). The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages (see id. at 358-359) and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff’s marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state.

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