Dallas’ Ken Upton, Lambda Legal appeal La. birth certificate case to U.S. Supreme Court

Ken Upton
Ken Upton

Big D’s own Ken Upton, a senior staff attorney for Lambda Legal, is hopefully about to get his first opportunity to argue a case before the U.S. Supreme Court. Lambda Legal today asked the high court to hear the case of a same-sex couple — Oren Adar and Mickey Smith — seeking an accurate birth certificate for their Louisiana-born son whom they adopted in New York. Louisiana has refused to recognize the adoption and issue a birth certificate listing both fathers as the boy’s parents.

Upton, who serves as lead counsel in the case, said the following in Lambda Legal’s press release:

“By treating adopted children whose parents are unmarried worse than other adopted children, Louisiana violates two well-established federal constitutional protections, both of which embody principles of equal treatment and unify us as a nation. First, the constitution mandates that Louisiana, like every other state, must treat all out-of-state adoption judgments equally. Second, Louisiana may not treat adopted children themselves differently based on the marital status of their legal parents. We have long since abandoned the notion that the government can punish children to express disapproval of their parents or their families. The state of Louisiana cannot withhold a birth certificate for this child simply because it doesn’t like who his parents are.”

Read Lambda Legal’s Petition for Writ of Certiorari here.

Upton has said that he’s also interested in challenging Texas’ statute, which says the adoptive parents listed on an amended birth certificate must be a man and a woman. State Rep. Rafael Anchia, D-Dallas, introduced a bill this year that would have allowed same-sex couples to have both their names on adoptive birth certificates, but the bill didn’t make it out of committee.

—  John Wright

Lambda Legal’s Ken Upton says today’s Prop 8 ruling will have little immediate practical impact

Ken Upton

We spoke Wednesday morning with Ken Upton, a senior staff attorney with Lambda Legal who’s based in Dallas, about the potential legal implications of this afternoon’s expected ruling in the Prop 8 case. Specifically, we asked Upton what the ruling could mean to folks in Texas, and why we should care.

Upton noted that even if U.S. District Judge Vaughn Walker strikes down Prop 8, it’s likely that the decision will be put on hold pending appeal, meaning no same-sex marriages will be performed in California.

“In the short run, it’s not going to do anything as a practical matter because it will be stayed,” Upton said of today’s decision. “Nobody’s going to get married in California, and the decision won’t be the final decision, because it’s going to get appealed at least once. As a practical matter, it won’t really do anything, but it will start the ball rolling on a path that could eventually do something.”

Upton said he is optimistic Walker will strike down Prop 8.

“I read the transcripts, and I heard the arguments, and I read the briefs,” Upton said. “The law is strong in our favor and the evidence was I thought very persuasive in our favor, so it won’t surprise me if he rules for us.”

But Upton added that the key to today’s ruling is not whether Judge Walker upholds or strikes down Prop 8, but the manner in which he does so.

“The result won’t be the final one anyway,” he said. “At this point, he’s just firing the first salvo if you will. What will really be interesting is how far he goes. What will he say about the constitution and how it protects gay people? What level of scrutiny will he give it? Will he talk about marriage itself or will he talk about discrimination against gay people? The immediate effect of it will be more one for lawyers to dissect than it will have any practical effect. It’s going to be years before we know the ultimate result.”

Despite minimal practical impacts, Upton acknowledged that a victory today will give the LGBT community a psychological boost.

“It feels good to see courts do what they’re constitutionally required to do, and that is be a check on government and the political arms of government,” he said. “One colleague suggested that everybody have a bottle of tequila in their office, and once we win, every time the other side calls him [Walker] an activist judge, take a shot, and see how long it takes to get drunk.”

—  John Wright

Is DART trying to water down proposed protections for transgender employees?

imagesTheoretically it should take only two words for Dallas Area Rapid Transit to amend its nondiscrimination policy to include transgender employees. DART could simply add “gender identity” to the policy and be done with it. Instead, DART wants to add about 30 words, and LGBT advocates aren’t quite sure why.

DART’s Board of Directors will again consider an amendment adding transgender protections to the policy this afternoon. The proposal came about in response to the agency’s alleged discrimination against a trans bus driver. If the amendment is approved today, it would go to a final vote Tuesday, June 22.

But the wording of the amendment has raised concerns among LGBT activists. Rather than simply adding “gender identity” to its existing nondiscrimination policy, DART attorneys have also inserted several clauses indicating that the policy applies only “to the extent [it is] consistent with state and federal law.” Because neither sexual orientation nor gender identity is included in state or federal employment protections, the fear is that these clauses could be interpreted to mean the policy is moot.

“I think the concern that I have and that I expressed to them, is they’ve taken a lot of words to explain a simple concept,” said Rafael McDonnell, a spokesman for Resource Center Dallas.

Ken Upton, a senior staff attorney at Lambda Legal, agreed that the proposed policy is unnecessarily complicated.

“This is the kind of bad drafting that frequently gives our opponents something to cause mischief,” Upton said. “I’m disappointed, but not surprised, that DART’s attorneys couldn’t just write a simple policy using plain language.”

McDonnell said after discussing the wording of the policy with senior staff members at DART, he’s comfortable that the clauses aren’t designed to water down or counteract the LGBT protections. McDonnell said he believes it’s more likely that DART attorneys wanted to ensure that the policy — which already includes sexual orientation — can’t be used as grounds to compel the agency to offer domestic partner benefits.

“At the end of the day, whether they take 30 words or five words, assuming the board votes as we think it will, DART will be fully inclusive of the LGBT community,” McDonnell said.

Today’s meeting is at 5 p.m. in Conference Room C at DART headquarters, at 1401 Pacific Ave. in Dallas. I’ve posted the proposed amendments to the policy after the jump.

—  John Wright

Congrats, Ken Upton

Kenneth D. Upton Jr.
Kenneth D. Upton Jr.

Just yesterday, Ken Upton took time out to return one of my incessant phone calls despite the fact that he was busy tending to a family emergency. When I asked Upton about the emergency, he said it’s just that as his parents get older, he needs to spend more time with them. He added that he’s getting older himself and will need someone to take care of him, so he’s glad he has my cell phone number. I thought that was pretty funny.

Anyhow, the point is that Upton is one of my best sources. He always calls me back, and he seems to know just about everything. So I wanted to be among the first to congratulate him on a big victory.

Upton, a senior staff attorney for Lambda Legal who’s based in Dallas, represents a gay New York couple that adopted a child from Louisiana. The state of Louisiana had refused to issue a new birth certificate listing the child’s adoptive parents. But today a federal appeals court ruled in favor of Upton’s clients. Read the full press release from Lambda Legal after the jump.

—  John Wright