LGBT issues

  • May 7, 2013

    by Jeremy Leaming

    As the U.S. Supreme Court tries to figure out how it will handle California’s anti-equality law, Proposition 8, and the federal government’s equally noxious Defense of Marriage Act, a number of progressive-leaning states are moving forward on expanding liberty.

    Last week Rhode Island become the 10th state to enact legislation allowing same-sex couples to wed and it appears Minnesota and Delaware may be closely following suit. Before the Rhode Island legislature gave final approval of the marriage equality measure R.I. Gov. Lincoln D. Chafee (I), celebrated the impending law, saying, “We will be open for business, and we will once again affirm our legacy as a place that is tolerant and appreciative of diversity.”

    The Minnesota House has scheduled a vote for this week on a marriage equality bill, the Pioneer Press reports. The newspaper reports that the House speaker has determined he has the requisite votes to pass the measure and send it to the Senate, where its leaders say they are confident they have the votes to approve it. Gov. Mark Dayton said he would sign the marriage equality bill into law.  

    Delaware lawmakers are also on the verge of advancing equality. The state House has already passed a bill recognizing same-sex marriage and the Senate, the Associated Press reports, is preparing to vote today on the measure. The AP also notes the state’s Democratic Gov. Jack Markell has “promised to sign the measure ….”

    While marriage equality is hardly the capstone of LGBT equality, it is nonetheless an important part of the efforts to achieve equality under the law. (In this post, it’s noted that federal lawmakers are pushing other measures to protect LGBT people in the workforce and LGBT military families.)

    The states moving to end discrimination against same-sex couples – at least in the arena of granting marriage licenses and state benefits that come with legally recognized unions – provide a strong argument for federalism. That is, many argue – including some pro-equality individuals and groups – that states are moving along to recognize same-sex marriage and there is no reason for the Supreme Court to upset the process by, say, finding that states refusing to recognize same-sex marriage are violating the equal rights of lesbians and gay couples.

  • April 23, 2013

    by Jeremy Leaming

    Marriage equality as significant as it is should hardly be viewed as the crown jewel of the movement for LGBT equality.

    Nevertheless with the coverage given to the two cases before the U.S. Supreme Court -- both centering on marriage equality concerns -- one might be lulled into thinking that if and when government recognizes same-sex marriages in the same way it does opposite-sex marriages the nation will be so much closer to its lofty promise of equal rights. But such thinking would be as lazy as it is delusional.

    As noted here last year, Kate Redburn in a post for Jacobin’s blog blasted the obsession over marriage equality as being “designed to distract liberal consciences and give Democrats political cover to gut social services.” And then she went onto to note examples, such as New York City Mayor Michael Bloomberg’s decision last year to gut funding for homeless shelters, noting that in NYC 40 percent of the homeless are LGBT youth. Redburn also remarked that only “the most privileged among us could possibly see the fight for the right to party [a wedding celebration] as a movement for social justice.”

    Besides, as this blog has noted, it is far from certain the Supreme Court controlled by right-wing justices will grant a sweeping victory for marriage equality anyway. (Instead it is possible the high court will toss Hollingsworth v. Perry, the challenge to California’s Proposition 8, on standing, and rule in U.S. v. Windsor  a major provision of the so-called Defense of Marriage Act encroaches on states’ rights or federalism grounds. Thus it is very likely the conservative Supreme Court won’t get near the question of whether laws that celebrate heterosexual marriages and denigrate same-sex relationships violate equal rights).

    But as money, time and energy are funneled into marriage equality, other groups and lawmakers are striving to move forward on other fronts for equality. For example, earlier this year, Sens. Kirsten Gillibrand (D-N.Y.) and Jeanne Shaheen (D-N.H.) introduced legislation intended to ensure LGBT military families are treated in similar fashion to their straight counterparts.

    And later this week, congressional lawmakers will introduce other measures aimed at advancing equality, such as another effort to outlaw workplace discrimination against people because of their gender identity or sexual orientation. At the moment a little more than a dozen states ban employers from hiring and firing people because of their sexual orientation or gender identity.

    Reporting for the Washington Blade, Chris Johnson says members of both chambers will later this week introduce, once again, the Employment Non-Discrimination Act or ENDA. The bill was first introduced in 1994 and has languished in every Congress it was introduced. The measure if enacted would prohibit employers from hiring and firing people based on their sexual orientation or gender identity. As Johnson, reports, however, the bill has been a work in progress and could still use some tweaks to block employers, including religious ones, from discriminating against the LGBT community in the workforce.

  • April 18, 2013

    by Jeremy Leaming

    Whether Justice Antonin Scalia is toiling away in the cloistered halls of the Supreme Court or speaking before right-wing think tanks or groups of law school students he has over the years proven a knack for annoying large swaths of people. And does anyone believe Scalia cares?

    What Scalia has done is to tamp down a handful of Supreme Court reporters who for years assured us the conservative justice was the high court’s sharpest thinker and nimblest writer and witty too. Those reporters, however, have had to give up the narrative thanks in large part to Scalia’s increasingly cranky, bizarre, racially insensitive, and unnecessarily over-the-top commentary. It has also helped that a lot more people call out Scalia for his ridiculousness. He might thrill American Enterprise Institute or the Federalist Society, but others paying attention are increasingly seeing a serial offender, with a wobbly way of interpreting the Constitution.

    He’s on bit of a roll this year. In February during oral argument in Shelby County v. Holder, the case involving a challenge from a largely white community in Alabama to the Voting Rights Act’s integral provision, Section 5, Scalia said the Act perpetuates racial entitlement. But Scalia couldn’t stop there; he had to add flippantly that the reason Congress reauthorized the Voting Rights Act was that lawmakers couldn’t bring themselves to vote against a measure with such a “wonderful name.”

    What these offensive and flippant asides have to do with the constitutional and other questions before the high court is anyone’s guess. It’s likely the acidity was all theatrics.

    The high court in Shelby will hopefully decide the case by looking at the text and history of the Constitution, in particular the 14th and 15th Amendments, which give Congress great discretion  in creating and enforcing appropriate laws to ensure that states do not discriminate in voting. Scalia’s disdain for the Voting Rights was evident, so it is likely he’ll find a way to contort so-called “originalism” to argue for gutting the law’s primary enforcement provision. (Section 5 requires states and localities, mostly in the South, with long histories of suppressing the minority vote to obtain preclearance from a federal court in Washington, D.C. or the Department of Justice before altering their voting procedures, to ensure they do not intentionally or unintentionally discriminate against minority voters.)

    This week during a talk before some law students in Washington, D.C., Scalia piled on, telling the students that Section 5 is an “embedded form of “racial preferment.”

    George Washington University law school professor Spencer Overton pushes back against Scalia’s racially charged attack on the Voting rights Act.

  • April 17, 2013
    Guest Post

    by Mary Bonauto and Paul Smith. Ms. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders in Boston. She was lead counsel in the Goodridge Massachusetts marriage case in 2003. Mr. Smith practices law in Washington, D.C. and argued the landmark Lawrence v. Texas gay rights case in the Supreme Court in 2003.


    We are co-counsel in two of the lawsuits challenging the Defense of Marriage Act that are now awaiting the Supreme Court’s ruling in United States v. Windsor. We principally chose “DOMA” as a litigation target because it so clearly denies gay and lesbian married couples the equal protection of the law guaranteed by the Constitution -- treating those married couples, and only those couples,  as though they are single for purposes of all 1,100-plus federal laws that take marital status into account. Significantly though, DOMA also involves a decision by Congress to second-guess the choices made by individual states that have married same-sex couples. By defining “marriage,” for all federal purposes, as limited to heterosexual unions, the law vitiates the States’ determination that married same-sex couples are married for federal purposes. The ability to say who is married has been the virtually exclusive domain of the states -- not Congress -- and is bounded only by other constitutional guarantees of due process and equal protection.

    We have always felt that this limited federalism aspect of the DOMA litigation is also helpful on the equal protection challenge. In our briefs (as in Edie Windsor’s in the Supreme Court), the fact that states control marriage policy in this country is used to undercut the claimed justifications for discriminating based on sexual orientation that have been offered up by the law’s defenders.  Although neither we nor Windsor raised these claims, one state, the Commonwealth of Massachusetts, has its own pending case in which it argues that DOMA undermines state prerogatives to license marriages for same-sex couples as it does for others. A prominent amicus brief by conservative legal scholars filed in the Windsor case also sounded concerns that DOMA goes beyond defining marriage for federal purposes and interferes with state law. And at the Supreme Court arguments on March 27, Justice Kennedy and others asked questions suggesting they might agree that DOMA violates principles of federalism.

    But the prospect that the Court might give considerable weight to federalism in a decision invalidating DOMA has caused grave concerns among some progressive observers – most notably Linda Greenhouse in her recent column ominously named “Trojan Horse.” The primary concern she expressed was that a decision invalidating DOMA on federalism grounds would, by emphasizing the primacy of states in setting marriage policy, somehow immunize from constitutional challenge those states that have chosen not to extend marriage rights to same-sex couples. But this concern reflects a mixing of constitutional apples and oranges.

  • April 4, 2013
    Guest Post

    by Holning Lau, Associate Professor of Law, University of North Carolina School of Law

    In my home state of North Carolina -- the most recent and probably last state to amend its constitution to ban same-sex marriage -- I have been fielding lots of questions from local couples wondering what impact, if any, the Supreme Court’s pending marriage cases will have here. The cases arose in California and New York. How might litigation that started so far away change things in our neck of the woods?

    The cases before the Supreme Court -- Hollingsworth v. Perry and United States v. Windsor -- are unlikely to have any immediate legal impact on same-sex couples in places like North Carolina. With that said, the cases can accelerate change in our part of the country, and they have already given us a lot to celebrate. In this post, I will use North Carolina as an example to elaborate on these points, but my underlying analysis can be applied to any one of the many states that currently, like North Carolina, offer no legal recognition to same-sex relationships.

    Immediate legal impact

    Let’s start with why the two cases probably won’t directly or immediately affect legal rights in North Carolina. Hollingsworth is the case about Prop 8, the ballot measure banning same-sex marriage in California. The case concerns whether a state can deny same-sex couples the right to marry. The Court could take Hollingsworth as an opportunity to declare that no state, including North Carolina, is permitted to deprive same-sex couples of that right. Indeed, I helped to prepare an amicus brief that supports that conclusion and I certainly welcome it. Conventional wisdom, however, is that the Court won’t make such a bold move. Some supporters of marriage equality counsel against a bold move, fearing the backlash that it would foment.

    Based on last week’s oral arguments, I suspect most of the justices are struggling to choose between dismissing the case on procedural grounds and striking down Prop 8 in a way that minimizes spillover effects to other states. I doubt that a majority of the justices will vote to uphold Prop 8.

    Dismissing the case on procedural grounds (discussed more fully here) would allow the Court to avoid having to either strike down or uphold Prop 8. It would simply be saying that, for technical reasons, the case is not properly before the Supreme Court. If the Court adopts this reasoning, Prop 8 would be unconstitutional because the California couples prevailed in lower court. However, because the Supreme Court itself would not be saying anything about same-sex marriage, states beyond California would remain unaffected.