LGBT issues

  • 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.

  • June 26, 2015
    Guest Post

    by Suzanne B. Goldberg, Director of Columbia Law School's Center for Gender and Sexuality Law, Herbert and Doris Wechsler Clinical Professor of Law, and Executive Vice President for University Life at Columbia University.

    By striking down state laws that shut same-sex couples out of marriage, the U.S. Supreme Court has put an end to a long and painful chapter in our country’s history and, at the same time, created an opening for a new wave of civil rights, safety, and justice advocacy.

    For so many years, with heightened intensity in the past two decades, states have denied same-sex couples access to marriage and the rights, recognition, and responsibilities that go along with it.  The terrible consequences are familiar: longtime partners kept from each other at hospitals, children and parents torn apart, humiliation and cost to people like the man at the heart of today’s decision, James Obergefell, whose marriage Ohio treated as nonexistent after Obergefell’s spouse, John Arthur, died in 2013.

    Familiar now, too, is the dramatic shift in the marriage equality landscape.  With increasing momentum, voters, legislatures, and courts around the country have reversed course on “defense of marriage” acts and rejected second-class citizenship for gay and lesbian couples.

    Without Supreme Court action, the nation was destined to maintain a discriminatory patchwork of marriage laws for years to come. The Court’s decision, in other words, reinforced the American tradition that courts, legislatures, and the general public each have a role in securing justice.

  • June 26, 2015
    Guest Post

    by Lara Schwartz, Professorial Lecturer, American University School of Public Affairs

    Much will be written, and is being written as we speak, on the Court’s historic decision in Obergefell v. Hodges, which recognized same-sex couples’ fundamental and equal right to marry. As someone who teaches constitutional law to undergraduates, most of whom have never read a judicial opinion when they enter my class, I will say this: I will hold class outside the day we discuss Obergefell, because I will not need a blackboard. This opinion will be the easiest reading assignment I’ll ever give them.

    Of all of the concepts I teach them, they struggle most with the concept of standards of review. Fortunately for them, the term “standard” does not appear in Justice Kennedy’s soaring, poetic opinion. Nor does “rational basis,” “heightened scrutiny,” or “compelling interest.” “Dignity,” on the other hand, appears nine times. This is as it should be, because the case was so simple.

    In plain English, for any American who is parsing this opinion today, I offer the following:

    The question before the Court in Obergefell was: Are gay people really people? It has always come down to this: If gay people are like other people, there is no compelling, important, or even rational basis to deny them the rights accorded to others. If gay people are as fully human as others, living in equal families, then laws that label same-sex couples and their children as legal strangers are repugnant to our Constitution.

  • June 19, 2015

    by Nanya Springer

    For those who attended, the 2015 ACS National Convention was not only an opportunity to catch up with old friends, make new connections, and obtain CLE credits; it was also a time to reflect upon the important work that attorneys do every day and gain inspiration for the road ahead.  Speakers from across the country and from diverse professional backgrounds delved into the issues of the day, including voting rights, women’s access to reproductive health care, LGBT rights and marriage equality, access to counsel, and more.  Here are some highlights with links to high-quality video for those who missed the live event.

    Stephen Bright, president and senior counsel at the Southern Center for Human Rights, received a stirring round of applause when he encouraged students and young lawyers to represent unpopular clients, saying “we need to see the kinds of injustices that got . . . people where they are.” In attendance with Mr. Bright were Theo Shaw, one of the exonerated “Jena 6” who is now on his way to law school on a full scholarship, and Jarrett Adams, an exoneree who graduated from law school and will soon begin clerking for the court that exonerated him.

    Wendy Davis, women’s rights crusader and a former state Senator from Texas, discussed how rampant voter suppression has led to bad policies in her state, particularly concerning access to reproductive health care. “Women who lack the means to manage their fertility lack the means to manage their lives,” she declared. “It is just that simple.”

    Former U.S. Attorney General Eric Holder called for automatic registration of all eligible voters in the U.S., stating that “the ability to vote is a right, it is not a privilege.” He decried efforts to make voting less accessible, explaining that in-person voting fraud is very rare and no such widespread schemes have been detected.

    U.S. Representative Hakeem Jeffries discussed the ongoing need to address faulty police practices, including so-called “taxation by citation,” “stop and frisk,” and “broken windows” tactics that disproportionately target low-income people and communities of color.

    U.S. Supreme Court Justice Ruth Bader Ginsburg drew laughs and applause during her conversation with California Supreme Court Justice Goodwin Liu. Speaking about her groundbreaking career, she said “I don’t think the meaning of feminism has changed,” it has always meant “girls should have the same opportunity to dream, aspire, achieve . . . as boys.” It’s about “women and men working together to help make society a better place.”

  • June 3, 2015
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law

    *This post is part of ACSblog’s symposium honoring the 50th anniversary of Griswold v. Connecticut.

    Griswold v. Connecticut is justly celebrated for discerning the constitutional right to privacy, and thus constitutional protection for reproductive freedom.  It not only protected access to contraceptives, but also provided the foundation for the later cases constitutionally protecting access to abortion.  Moreover, Griswold helped instill constitutional respect for the broader concerns of “marriage, procreation, and family relationships,” and ultimately for the even broader concern of “personal dignity and autonomy.”

    However, where the privacy and personal autonomy of LGBT people are concerned, the legacy of Griswold is more nuanced.  Doctrinal developments following Griswold constrained gay rights in some respects, and in some respects fortified them.  And the way in which the Supreme Court has been treating LGBT rights recently may presage salutary changes to come.

    The most negative aspect of the Griswold legacy for LGBT people is that it did nothing to forestall the disaster of Bowers v. Hardwick.  This was the 1986 case in which the Supreme Court held that Georgia’s anti-sodomy law did not protect sexual relations between two men (nor presumably between two women).  When Bowers was decided, Griswold was already 21 years old, and Roe v. Wade had already passed its thirteenth anniversary.  Cases applying the right to privacy were not in short supply, but the Court majority could not bring itself to allow lesbians and gay men to share in the newly discerned freedoms.  There was no principled reason for Bowers to come out differently from the contraception or abortion cases.  Bowers seemed to create a “special case,” perhaps founded on homophobia, excluding lesbian and gay rights from the zone of privacy that protected others.