JURIST - Paper Chase: Sunday, July 3, 2011

[JURIST] Rhode Island Governor Lincoln Chafee [official website] on Saturday signed into law a bill [H6103, PDF] that legalizes same-sex civil unions in the state. The bill effectively adds a "Civil Unions" chapter to the Rhode Island General Laws section governing domestic relations, affording same-sex couples many of the same rights and benefits available to married couples. The bill is modeled on similar legislation in Illinois, Delaware and Hawaii [JURIST reports], and defines a civil union as "a legal union between two individuals of the same sex" who are consenting adults not party to a separate civil union or marriage. However, the civil unions bill passed with an amendment granting recognition exceptions to organizations that are or are connected to religious or denominational organizations. Pro-equality groups like Marriage Equality Rhode Island (MERI), Freedom to Marry and the Gay & Lesbian Advocates & Defenders (GLAD) [advocacy websites] have condemned the law entirely because of this provision, which essentially allows many organizations to ignore a legally formed civil union. MERI Board Chair Martha Holt issued a statement after the bill passed the state Senate [JURIST report] earlier this week:

We are extremely disappointed that the Senate brazenly ignored the commonsense objections raised by equality and civil rights leaders here and across the country. This civil union bill contains dangerous and discriminatory language that, without question, will cause significant harm to countless gay and lesbian couples in loving, committed relationships, and we will continue to fight it through whatever means are necessary. Furthermore, we renew our request that the governor veto this hurtful and ill conceived bill. To not do so would be a slap in the face to the gay and lesbian community, and every Rhode Islander who cares about equal rights and protections for all our state's citizens.

Chafee, as well as advocacy groups, initially called [NPR report] for the legalization of same-sex marriage [JURIST news archive] but the House did not approve the necessary amendment [JURIST report].

Same-sex marriage continues to be a controversial and divisive issue throughout the US, although a recent poll [materials] suggests support for legalization is growing. New York recently became the nation's most populous state to pass a same-sex marriage bill [JURIST report] while the Minnesota Senate [official website] in May approved a voter referendum [JURIST report] to amend the constitution to ban same-sex marriage. In April, a Montana judge dismissed a lawsuit [JURIST report] that had called for the state to provide legal status to same-sex relationships. Also in April, the Indiana Senate [official website] overwhelmingly approved [JURIST report] an amendment to the state constitution that would ban same-sex marriage or any "substantially similar" status, and the Wyoming Senate [official website] in February approved a bill that would void in Wyoming any same-sex marriages and civil unions [JURIST report] performed in other jurisdictions. In addition to being legal in New York, same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC [JURIST reports].

[JURIST] The Center for Reproductive Rights (CRR) [advocacy website] filed a motion for a preliminary injunction [text, PDF] Thursday to block a new Texas requiring a woman to have a sonogram with the doctor describing the fetus in detail before having an abortion [JURIST news archive]. The CRR filed a class action lawsuit [JURIST report] in the US District Court for the Western District of Texas [official website] earlier last month challenging HB 15 [text; materials] and is now seeking to block its implementation, which is set to take place in September. The CRR argues that without an injunction the law will cause irreparable harm to physician facilities providing the services and to woman seeking abortions and seeks to enjoin its enforcement until a decision on the merits is made. The lawsuit claims that by forcing the physician to deliver government-mandated materials to the patient, it violates the First Amendment [text] rights of both the patient and of the physician. It forces patients to hear what CRR claims is politically-motivated speech before making a decision and forces physicians to deliver unwanted information. The complaint further argues that the law violates the Equal Protection Clause [Cornell LII Backgrounder] "by subjecting women to burdens not imposed on men; by perpetuating patronizing and paternalistic stereotypes of women as in need of special 'protections' and unable to make medical decisions on their own; and by enforcing the notion that a woman's primary and proper role is that of mother."

Texas Governor Rick Perry [official website] signed HB 15 into law [JURIST report] in May. It requires doctors to conduct a vaginal ultrasound and display the images at least 24 hours prior to an abortion, and strips them of their medical licenses should they fail to do so. The law also requires doctors to provide "a simultaneous verbal explanation of the results of the live, real-time sonogram images, including a medical description of the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of arms, legs, external members, and internal organs." The Texas law is one of a number of state laws passed recently attempting to restrict abortion rights. Last week, the CRR won a preliminary injunction in the US District Court for the District of Kansas [official website] to block a Kansas regulation [SB36] requiring clinics within the state to obtain a license to perform abortions. Earlier last week, a judge for the US District Court for the District of South Dakota [official website] issued a preliminary injunction [JURIST report] blocking a South Dakota abortion regulation [HB 1217] requiring a 72-hour waiting period. Multiple states have enacted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Oklahoma, Kansas and Idaho [JURIST reports].

[JURIST] UN Rapporteur on the independence of judges and lawyers [official website] Gabriela Knaul warned [press release, in Spanish] Friday that an El Salvador law requiring its high court to issue unanimous judgments is an "attack" on judicial independence and the separation of powers. The new law, passed by the Legislative Assembly and issued by the president, places requirements on the judgments of the Constitutional Chamber of the Supreme Court [official websites, in Spanish]. Knaul said [press release] that requiring unanimous rulings will harm the judges' ability to function effectively. She said:

El Salvador, as a country that is consolidating its democracy, should pay particular attention to the full independence of the judiciary and the principle of separation of powers enshrined in international instruments of which it is a party and which are enshrined in the Salvadoran constitution. The other branches of government cannot force the country's highest court to take judicial decisions unanimously, as the matters that fall within its competence are, by their very nature and complexity, controversial. [If followed, it] would block the activity and the effective functioning of the country's highest court and therefore substantially limit the rights of Salvadorian citizens to appeal to that court in defence of their fundamental rights.

The law has been controversial in El Salvador where civic organizations are pushing for its repeal [El Salvador Noticias report], and it has sparked debate between the branches of government.

El Salvador has struggled with judicial independence in the past. In 2008, Hundreds of judges and lawyers in El Salvador marched to the Supreme Court of Justice [JURIST report] to protest challenges that the attorney general made to the rulings of four judges. Attorney General Felix Safie asked the Supreme Court to investigate judges' decisions, which freed prisoners convicted of acts of murder, robbery and rape prior to the expiration of their sentence. Other countries have also been passing laws restricting the independence of judges. Last month, the Taiwan Judicial Yuan [official website] President Lai Hau-min announced a new law to remove judges [JURIST report] which subjects judges to committees that can discipline or fire them.