LGBT issues

  • March 23, 2015
    Guest Post

    by Suja A. Thomas, Professor of Law at the University of Illinois College of Law; author of The Other Branch: Restoring the Jury’s Role in the American Constitution (forthcoming Cambridge University Press).  This post is based on her essay, Text-Bound Originalism (and Why Originalism Does Not Strictly Govern Same Sex Marriage).

    Many assume originalism has an important place in the debate about whether states can prohibit same sex marriage.  As the argument goes, the original public meaning of the Equal Protection Clause was the protection of African-Americans, so there is no constitutional barrier to states' prohibition of same sex marriage.  In deciding that states could prohibit same sex marriage, a panel of the U.S. Court of Appeals for the Sixth Circuit recognized the relevance of this originalist interpretation of the Equal Protection Clause along with other arguments for permitting the prohibition of same sex marriage—all of which the Supreme Court will soon consider.

    But does originalism have a significant place in the interpretation of the Equal Protection Clause and thus in the same sex marriage decision?  Those advocating the use of originalism believe that originalism must strictly govern the interpretation of the Constitution.  Thus far in arguing for this originalist methodology, however, they have not acknowledged that the text of the Constitution explicitly requires the application of originalism for the interpretation of one provision in the Constitution—the Seventh Amendment.  In ignoring this textual inclusion of originalism and corresponding textual exclusion of originalism elsewhere, originalists have not shown why originalism should strictly govern other parts of the Constitution.

  • February 16, 2015
    Guest Post

    by Harvey Fiser, Associate Professor of Business Law at Millsaps College

    All eyes are once again focused on our southern states and their leaders for again defying federal court orders.  This time, as last, is about violating the constitutional rights of its citizens.  The latest in the long line of outspoken obstructionists is Alabama Supreme Court Justice Roy Moore.  Moore, infamous for once being removed from his position on the Alabama Supreme Court for defying a federal court order to remove a 2.6-ton monument of the Ten Commandments from the rotunda of Alabama’s Supreme Court building, is the lead mouth-piece on the current issue of same-sex marriage. 

    On Monday, February 9, after a denial of a stay request by both the Eleventh Circuit and the United States Supreme Court, United States District Court Judge Granade’s order took effect.  The order declared Alabama’s bans on same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  On that Monday, same-sex couples were allowed the same marriage rights as all other couples in Alabama – until they weren’t. 

    Perhaps forgetting the commandment, “remember the Sabbath and keep it holy (Exodus 20:8),” Justice Moore, on Sunday, February 8, set aside any Sabbath work restrictions and issued an Administrative Order prohibiting all probate judges in Alabama from granting marriage licenses to same-sex couples despite the federal court order.  Moore supported his order with the technical fact that neither the United States Supreme Court nor the Supreme Court of Alabama had ruled on the Alabama laws – never mentioning the denial of a stay by the U.S. Court of Appeals for the Eleventh Circuit five days prior.  The U.S. Supreme Court did act the next day, and, on Monday, February 9, the path was cleared for same-sex couples to marry in Alabama again.  Surely this satisfied Moore’s Sunday declaration.  Except, it didn’t.

  • February 11, 2015

    by Paul Guequierre

    Look almost anywhere and you’ll see the progress the LGBT community has made in its march toward equality. To the casual observer, victory may look to be in arm’s reach. Eleven years ago, Massachusetts became the first state to usher in marriage equality and now, with the Supreme Court denying Alabama’s request for a stay of a lower court’s ruling finding the state’s marriage ban unconstitutional, marriage equality is the law of the land in 37 states and the District of Columbia. And on top of that, the Supreme Court has finally agreed to take a marriage case this term, and we should know the fate of marriage equality in a few short months and many indicators point to victory. To some, the fight looks close to being over. Except that it’s not. Let’s take a look at Kansas for an example.

    This week Kansas’s Republican governor turned the clock back decades on fairness. Gov. Sam Brownback issued an executive order stripping anti-discrimination protections for LGBT state employees that former Gov. Kathleen Sebelius had put in place nearly a decade ago. Saying LGBT people should not be considered a protected class unless the legislature designates them so, Brownback has reopened the door to harassment and discrimination in the state workforce.

    If you’re surprised, you’re not alone. Polling commissioned by the Human Rights Campaign, the nation’s largest LGBT civil rights organization, found that a majority of Americans think discrimination protections for LGBT Americans are already federal law. The reality, however, is that  there is no federal law protecting gay and transgender Americans from discrimination in employment and only a handful of states have such protections. If that seems odd to you and you thought the fight for LGBT equality will be over this summer when the Supreme Court rules on marriage equality, think of this: in nearly half of the states a gay or lesbian couple will be able to obtain a marriage license and then be fired from their job for no other reason than being gay. And that’s not likely to change anytime soon.    

  • February 9, 2015

    by Caroline Cox

    At Salon, Jenny Kutner reports that the Supreme Court has denied a stay in the Alabama same-sex marriage case.

    Bill Chappell writes for NPR that Alabama courts have begun to issue marriage licenses to same-sex couples despite comments from Alabama Chief Justice Roy Moore that courts should ignore the federal court ruling on same-sex marriage.

    Louise Radnofsky, Jess Bravin, and Brent Kendall write in The Wall Street Journal that there are now questions about the standing of the lead plaintiff in King v. Burwell.

    The Constitutional Accountability Center provides an overview of the King v. Burwell amicus briefs that support the government in the case.

    Joseph Shapiro of NPR reports that civil rights attorneys are suing Ferguson over “debtors' prisons” that jail people when the fail to pay fines for minor offenses.

    In The Atlantic, Conor Friedersdorf discusses how federalism has helped same-sex marriage spread throughout the country.

  • January 8, 2015
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, Indiana University Bloomington.

    * This piece originally appeared on The Huffington Post.

    The Supreme Court has been reluctant to jump into the question of same-sex marriage, preferring to let the issue percolate through state-by-state litigation in the lower federal courts.  But the time has come for the justices to come out of hiding.  The denial of marriage equality is a national problem, not a state-level problem, and it requires a national resolution that only our nation’s constitutional court can provide.

    At the moment, 35 states allow marriage equality, while 15 forbid it.  The anti-equality states not only refuse to allow same-sex marriages to be licensed and celebrated; 14 of them also refuse to recognize marriages from sister states where such unions are perfectly legal.  Petitions from cases in four of those states – Kentucky, Michigan, Ohio, and Tennessee – will be considered by the justices at their next private conference this coming Friday.

    One reason marriage equality is a national issue is that our current patchwork of marriage laws imposes unreasonable, indeed absurd, burdens on same-sex couples’ security in their marriages and their freedom to move from state to state.  A married gay couple from a pro-equality state can relocate for job, education or family reasons to an anti-equality state – as long as they’re willing to give up their marriage, and perhaps even their property and parental rights.  A rational legal regime cannot tolerate this state of affairs.

    In a 2012 article in the Michigan Law Review, I first proposed that the Constitution provides not only a right to get married, but a right to remain married.  Multiple federal court decisionsincluding one from the 10th Circuit U.S. Court of Appealsinvolving Utah’s marriage laws, have since endorsed this principle.  There is also an argument to be made that denial of interstate marriage recognition offends the Constitution's Full Faith and Credit Clause.