LGBT issues

  • July 17, 2015

    by Nanya Springer

    When Harvard Law School’s Laurence Tribe delivered the Chautauqua Institution’s 11th annual Robert H. Jackson Lecture on the U.S. Supreme Court last week, he had a lot of material to cover. The latest Supreme Court Term was eventful. From the Court’s historic recognition of same-sex marriage equality in Obergefell to its decision to uphold the Affordable Care Act health care exchanges in King, June 2015 produced decisions that will impact the way millions of Americans live their lives.

    While Professor Tribe discussed the significance of the high court’s opinions, he also addressed recent “momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions,” including the racially motivated massacre at Mother Emanuel Church in Charleston which preceded the Court’s ruling in Walker v. Sons of Confederate Veterans by less than 24 hours.

    Tribe says, “My hope is to tie the electrifying events of June together with [former Supreme Court Justice] Jackson’s eloquence and pragmatism, to arrive at a brighter and larger sense of that Constitution, a less cramped understanding of constitutional law, and a more capacious vision of the Supreme Court’s role in giving the Constitution life.”

    A full transcript of the speech is available here and here, and the video can be viewed below.

     

  • 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. 

     

  • 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.

  • June 26, 2015
    Guest Post

    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law

    In the rearview mirror of history, today’s decision in Obergefell v. Hodges will one day appear as obvious and inarguable to almost every American as other landmarks in our Nation’s journey toward equality. Like Loving v. Virginia (1967), which invalidated bans on interracial marriage, and Brown v. Board of Education (1954), which invalidated segregation, Obergefell will stand as a cherished American monument not just to the realization of greater equality, but also to the struggle and sacrifice to get there. And, as with perhaps the most powerful of American monuments ‒ the Lincoln Memorial ‒ Obergefell should not only turn our contemplation to the past, but moreover should direct our reflections to the future.

    In the eloquent words of Justice Kennedy, from an earlier decision on which today’s builds, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” What will be those “certain truths” which we cannot see today, just as barely a generation ago a majority of the Court ‒ and no doubt most of the country ‒ deemed the claim of equality for same-sex couples to be, “at best, facetious”? I do not know.

    Perhaps future generations will find our failure to address crippling inequality of income and opportunity to be as willfully blind as past generations’ acceptance of separate but equal. Or perhaps our posterity will judge the demographics and conditions of mass incarceration to be as discriminatory and violative of human dignity as we do the machinery of justice under the Ancien Régime. But even if we had the benefit of tomorrow’s hindsight today, would we have the humility and courage to accept it? After all, Justice Harlan’s dissent in Plessy v. Ferguson (1896) spoke from the future, and no one else signed on.