LGBT issues

  • 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.

  • December 15, 2014

    by Nanya Springer

    Investigative journalist Jo Becker spent four years embedded with the plaintiffs’ litigation team in Hollingsworth v. Perry, also known as the Prop 8 case. After the Supreme Court ruled on the case, she published Forcing the Spring: Inside the Fight for Marriage Equality, which provides rare insight into the privileged strategy discussions and work product materials of the attorneys.

    In Lessons for Law Reform Litigators, Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law and Professional Lecturer in Law at George Washington University Law School, uses Becker’s account to extract lessons in strategy for attorneys who seek to institute social change through the courts.

    Morrison’s paper, published by The Green Bag, traces the evolution of the famous case, as told by Becker, and draws out pearls of wisdom as it goes. For example, after Prop 8 was struck down by the District Court, California’s governor and attorney general chose no longer to defend the discriminatory law. However, this created a problem for the Prop 8 plaintiffs who thought they could win at the Supreme Court. Absent an appeal from the state, and with no new same-sex marriages having taken place, the plaintiffs had a standing problem that threatened to impede the progression of the case through the courts and deny them the broad ruling they sought. The lesson?  Seemingly good news can be bad news for litigators seeking sweeping reforms to the law.

    Morrison, a co-faculty advisor of the ACS Student Chapter at GW Law, also discusses the importance of District Judge Vaughn Walker’s decision to hold a trial as opposed to resolving the case—in which no facts were disputed—through summary judgment. He explains that the trial not only allowed the plaintiffs to tell their personal stories, thereby educating the public and influencing public opinion, but also made it impossible for the defense to find an expert who was willing to testify in open court that same-sex marriage harms opposite-sex marriage.  The lesson?  While discovery can be used to expand upon the facts of a case, there is no substitute for the testimony of real, live witnesses.

    Morrison’s paper is not a book review, nor is it a law review article. Instead, Morrison, a co-founder and director for 25 years of the Public Citizen Litigation Group, uses the story of one of the greatest legal undertakings in recent history to provide tips and advice on litigation strategy.  For public interest attorneys, or anyone interested in taking on far-reaching public interest cases, it is worth a read.