Today, the U.S. Ninth Circuit Court of Appeals reversed a lower court's decision to dismiss an equal protection claim brought against the Arizona Department of Corrections by a same-sex couple who were not allowed to hug or kiss during jail visits even though opposite-sex couples enjoyed the same right. The American Civil Liberties Union of Southern California and the National Center for Lesbian Rights argued the case on behalf of an Arizona same-sex couple who brought the suit after they were not allowed to hug during visits.
Karl Whitmire and his long-term partner, William Lyster, are divided by Lyster's incarceration. Despite the fact that opposite-sex partners can hug and kiss during visits, Mr. Whitmire and his partner were not allowed to show such affection during their visits. An Arizona Department of Corrections policy states that, "The following conduct shall be prohibited at visits...Same-sex kissing, embracing (with the exception of relatives or immediate family) or petting." After hugging his partner during a visit, Mr. Whitmire was warned that if it happened again, "it will be a long time" before he would see his partner again. Mr. Whitmire together with his partner filed suit against the State of Arizona on the grounds that their rights were violated by the state's discriminatory policy. A lower court sided with the state in dismissing the suit and the plaintiffs appealed the ruling to the Ninth Circuit Court of Appeals.
"Prison administrators can have reasonable rules to protect prison safety, but they can't arbitrarily penalize prisoners and visitors on the basis of sexual orientation," said Martha Matthews, Bohnett Attorney with the ACLU/SC.
The Ninth Circuit ruled that the policy may violate Whitmire's constitutional right to equal protection.
"This ruling underscores the basic principle that no matter what the context, the government cannot treat lesbian and gay people differently simply because some people disapprove of same-sex relationships," said Courtney Joslin, Staff Attorney for the National Center for Lesbian Rights.
The case will now return to the lower court for further proceedings.
