Equality and Liberty

  • July 17, 2015
    Video Interview

    by Paul Guequierre

    The LGBT rights movement has made extraordinary progress in just the past few years, let alone the past 11 years since Massachusetts became the first state to usher in marriage equality. Now, of course, marriage equality is the law of the land from sea to shining sea. Many people have put the rainbow flags away, thinking the fight for full equality is over. The reality is though, the fight is far from over.

    At the 2015 ACS National Convention, Janson Wu, executive director of Gay & Lesbian Advocates and Defenders (GLAD) and the 2012 David Carliner Public Interest Award recipient, sat down and gave us his take on the progress the LGBT rights movement has made, where we’ve been, where we’re going and where we need to take the fight.

    “Now you can see what seemed an impossible victory in 2003 and now seeming almost inevitable in 2015 and I think that’s kind of the theme of our work going forward: what are those kind of impossible dreams we can think of right now that we can make inevitable in five, ten, fifteen years,” Wu said.

    In the interview, Wu also noted the role litigation plays in the LGBT rights movement, not only as a legal remedy to discrimination, but also as a tool to educate Americans.

    “Litigation is actually a great vehicle for education because what we know is that the public can understand and really sympathize with stories of harm. When you have litigation, you generally have a plaintiff who is harmed, so we always try to, when appropriate, use our plaintiffs as a way of educating.”

    After marriage equality, what are the issues the LGBT community faces? Where are the legal efforts in the movement taking place and where will they head in the future? View the full interview with Janson Wu below. 


  • July 15, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

    *This piece originally appeared on The Global Legal Post.

    It turns out that an older Atticus Finch – the lawyer who in earlier years represented a black man in the novel To Kill a Mockingbird – is, according to author Harper’s Lee’s recently released book Go Set a Watchman, a racist. From the front pages of the New York Times to talk shows across the airwaves, the fictional Finch is being dissected as if he were a real life hero that has fallen from grace. There have been questions about whether the author – now 89 years old --  was too mentally infirm to consent to the publication of Go Set a Watchman. Investigators from the State of Alabama reportedly even visited Ms. Lee at her nursing home to determine whether the author’s decision to publish the novel, written prior to Mockingbird, was the product of elder abuse.

    Why has this caused such a stir and why is Atticus Finch so beloved? To Kill a Mockingbird was published six years after the Supreme Court’s landmark decision in Brown v. Board of Education of Topeka Kansas, 347 U.S. 483 (1954), a decision that to some degree signaled that the legal system could be a legitimate tool to battle discrimination. Finch, of course, was a white lawyer in a southern town representing a black man. And, perhaps and maybe just perhaps, he became a symbol for others not directly impacted by racism to take on the battle in the coming years. I am, in particular, reminded of the white Justice Department Lawyers, including John Doar, who litigated voting rights cases in Mississippi in the 1960’s.

    That a white man in a southern town could advocate on behalf of a black man was an important message in 1960. Back then, Harper Lee did the nation a service when she created Atticus Finch. 

    The publication of Go Set a Watchman comes seven years after the election of Barak Obama lulled some into belief that discrimination had seen its day, while providing others with the perception that discrimination in this era could go undetected.  

    The tragic shooting in Charleston, South Carolina, among other recent events, was a reminder that discrimination (to loosely borrow a phrase from the poet Langston Hughes) is festering like a sore that we notice only when it runs. Yet, look hard enough, search the internet, and it is easy to find cyber space meetings of the Klu Klux Klan and the most vulgar reminders that racism and antisemitism are unfortunately alive.

    The events of Charleston were tragic and of course noticeable. Unfortunately discrimination too often is not noticeable except to the victim. Employers biased by their own perceptions can still, 50 years after the passage of the Civil Rights Act, make decisions based on race, religion or gender that are almost impossible to redress in a court of law.      

    I suppose that there is some sadness in learning the true prejudices of Atticus Finch. But maybe Harper Lee has once again done the nation a service by reminding us that racism – and the discrimination that it produces – can be harboured by the most unlikely of characters.

  • July 7, 2015

    by Caroline Cox

    In The New York Times, Paul Butler discusses how “white supremacy is embedded in our very sense of normalcy” in the United States.

    At Jost on Justice, Kenneth Jost writes that Justice Stephen Breyer’s dissenting opinion in Glossip v. Gross that suggests the death penalty is unconstitutional is a “genuine surprise.”

    Phyllis Goldfarb also considers Glossip v. Gross at the George Washington Law Review’s On the Docket blo, writing that “the rancor reached extravagant levels” in the lethal injection case.

    ACS Board member Linda Greenhouse argues at The New York Times that after this Supreme Court term, “it’s not the voters, but the Republican presidential candidates, who should be afraid.”

    At NPR, Nina Totenberg looks back at the historic Supreme Court term, calling it both “surprisingly liberal” and extremely contentious. 

  • June 30, 2015
    Guest Post

    by Sam Kleiner, a fellow at the Yale Law Information Society Project 

    With his landmark opinion in Obergefell v Hodges, Justice Anthony Kennedy cemented his legacy as a gay rights icon. “He will be remembered for these decisions perhaps more than any other,” said Camilla Taylor, counsel and director of Lambda Legal’s marriage project. What makes this all the more remarkable, is that Justice Kennedy wasn’t supposed to be a justice at all. He was Reagan’s more conciliatory choice, the one who was “popular with colleagues of all political persuasions,” after the failed nomination of the far more right-wing Robert Bork.

    The effort against Bork has been immortalized in Senator Edward Kennedy’s speech on “Robert Bork’s America.” "To Bork" has entered the American lexicon as a hyperbolic attack on a good person.

    The reality, however, is that Bork was outside the legal mainstream. Whereas Senator Kennedy led an effort to skewer Bork, the chairman of the Senate Judiciary Committee led a far more substantive critique of Bork’s extremism that proved pivotal in the fight over the nomination. That senator was Joseph Biden.

    Bork was nominated with impeccable credentials- a professor at Yale Law School and a Judge on the D.C. Circuit court of appeals. The Senate had traditionally questioned the qualifications of a nominee but an inquiry into their judicial philosophy had not been done in a full-throated manner. Bork, however, had built his academic career disparaging an array of civil rights cases and Biden thought it was necessary to dig in on what exactly this nominee’s views of the Constitution were and what he would do on the Court.

    While others wanted Biden to go after Bork’s personal life, he took the higher road. “When confronted with a request to subpoena Judge Bork’s video rental records in a search for possible pornography, Mr. Biden refused,” noted Jeff Rosen (then a Biden intern).

    Instead, Biden went into an in-depth hearing on Bork’s understanding of the Constitution. Biden, as Rosen noted, focused the “questioning on Judge Bork’s substantive views about the right to privacy." In 1965, the Court in Griswold had ruled that a law banning the use of contraceptives by a married couple was unconstitutional as a violation of the “right to marital privacy.” Professor Bork had built his career criticizing decisions like Griswold and Biden used the hearings as a way to highlight just how extreme Bork was.

    In the hearings, Biden, at some length, prodded Bork on his argument against Griswold. Bork gave “weak-kneed statements from a man known for verbal muscle,” as one historian notes.  Biden’s objective was not to disprove Bork’s views explicitly but he was able to discredit him in the court of public opinion. The strategy worked.

    The concern raised about Bork was that he had always been opposed to the development of new liberties and was unlikely to be a defender of liberty on the Court. “As one imagines the kinds of great new issues that might come before the court in the years ahead, there surely are reasons to fear that on these great issues, Judge Bork will not be there when it counts,” testified Bork’s Yale Law colleague Paul Gewirtz at a Biden-led hearing.

  • June 26, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Supreme Court’s decision upholding a right to marriage equality for gays and lesbians surprised no one, but that makes the victory for liberty and equality no less important. Two years ago, the Supreme Court, in United States v. Windsor, declared unconstitutional a key provision of the federal Defense of Marriage Act. Justice Kennedy wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court held that there was no legitimate purpose served by the federal government refusing to recognize same sex marriages.

    Virtually every lower court, except for the United States Court of Appeals for the Sixth Circuit, interpreted Windsor as providing a basis for invalidating laws prohibiting same sex marriage. As a result, as the Supreme Court considered the issue, marriage equality existed in 37 states and the District of Columbia. The issue before the Court was less about whether to extend marriage equality and more about whether the Court would take it away from all of the states where it existed by virtue of Court decisions.

    Ultimately, the Supreme Court’s decision reflects that there is no legitimate government purpose served by denying gays and lesbians of the right to marry. A history of discrimination never is enough to justify current discrimination. The argument based on procreation was silly.  Gay and lesbian couples will procreate – by adoption, surrogacy, and artificial insemination – whether they can marry or not. Their children should be able to benefit from marriage, the same as children of heterosexual couples.

    The Court’s decision will be regarded as a historic landmark for advancing equality and liberty. It is the Court playing exactly the role that it should in society:  protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental.