LGBT issues

  • 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.

  • June 2, 2015
    Guest Post

    by Emily J. Martin, Vice President and General Counsel, National Women’s Law Center

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

    Fifty years ago this week, the Supreme Court held that the Constitution did not permit a state to prohibit the use of contraceptives within marriage or the provision of contraceptives to married people.  Finding a “zone of privacy created by several fundamental constitutional guarantees,” the majority concluded that the contraception bans unconstitutionally intruded on marriage, which the Court described as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”  Seven years later, in Eisenstadt v. Baird, the Court extended the constitutional right to use birth control to unmarried couples.

    By guaranteeing legal access to birth control, the Griswold decision opened the door for dramatic changes for women and for our society.  As the Supreme Court has since observed, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”  In fact, research has shown that availability of reliable birth control has been a key driver of the increases in U.S. women’s education, labor force participation, average earnings, and the narrowing in the wage gap between women and men achieved over recent decades.

    Given the profound importance of the availability of contraception to women’s health and women’s opportunities, it is notable that the Griswold majority nowhere mentioned the word “woman” or “women.”  Neither did the word “gender” or “sex” make an appearance.  And while the opinion for the Court relied on the First Amendment, the Third Amendment, the Fourth Amendment, and the Fifth Amendment in finding a constitutional right to be let alone and a right of intimate association that included the right to use contraception, the majority made no reference to the equality guarantee of the Fourteenth Amendment in striking down Connecticut’s birth control ban.

  • May 8, 2015
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc., which filed a brief in support of marriage equality, together with the NAACP. Follow him on Twitter @jpscasteras.

    It was a familiar scene at the U.S. Supreme Court: states argued that allowing certain couples to marry would impose long-term harms upon children, families and social institutions. They contended that it is not the judiciary’s place to scrutinize restrictions upon the freedom to marry.  And they fell back upon the claim that the definition of marriage is a longstanding tradition.

    No, I’m not talking about last week’s argument on same-sex marriage; I’m referring to the 1967 case of Loving v. Virginia, which ultimately struck down bans on interracial marriage as unconstitutional. Switch a few names and adjectives and you could have approximated swathes of the oral argument from 48 years ago, listening to Virginia defend a central vestige of segregation.  Indeed, Virginia now acknowledges that it had supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

    The resemblance should come as no surprise.  Civil rights groups like the NAACP Legal Defense Fund and NAACP have long advanced briefs and analyses about the logical and legal parallels between interracial marriage and same-sex marriage.  Recently, Bloomberg and the Wall Street Journal released new studies comparing our nation’s ability to progress on these two issues.  Courts around the country have recognized the enduring relevance of Loving’s holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry.

    Likewise, last week, the justices repeatedly focused on Loving, referencing it ten times in the transcript and another half-dozen times indirectly.  Justice Kagan explored how “Loving was exactly what this case is” and Justice Breyer explained that the states’ reliance upon tradition today is “the same way we talk[ed] about racial segregation.”  The Solicitor General put it eloquently: allowing states to discriminate against same-sex couples “will approximate the nation as a house divided that we had with de jure racial segregation,” and he did not “know why we would want to repeat that history.”