LGBT issues

  • 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.”

  • May 7, 2015
    A Novel
    Kermit Roosevelt

    by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

    In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

    This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

    But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

    That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.

  • May 6, 2015
    Guest Post

    by Julie Nice, Herbst Foundation Professor of Law and Dean’s Circle Scholar, University of San Francisco School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Whatever Justice Kennedy decides on the question of whether states can ban same-sex marriage, the name Obergefell will mark this landmark moment in constitutional history.  That’s fitting because the remarkable story of undying love between James Obergefell and his late husband, John Arthur, is truly what the battle for marriage equality is about.              

    The Obergefell story is about two men determined to marry before one of them succumbed to the ruthless disease that was taking his life.  It’s a story about a medical plane transporting two men to a wedding on a tarmac in a state that would recognize their same-sex marriage.  It’s a story about the pain of the indignity suffered when their home state refused to recognize their love and their marriage on that ultimate of legal documents, the death certificate.  It’s a story about seeking “that same ennoblement” bestowed on heterosexual couples.

    It’s also a story all-too-familiar within my own family.  My sister Suzanne Nice and her partner, Maureen Martin, devoted themselves to the life they built together and sustained for over thirty years.  Through the beauty of their quiet harmony, they provided an inspiring model of loving commitment to all of us in their circle of family and friends.  Maureen died early in 2014, just months before Illinois began recognizing same-sex marriage.

    When Maureen’s death suddenly appeared imminent, we furiously attempted to obtain a medical exemption from Cook County officials to authorize their marriage ahead of the announced date upon which Illinois would begin recognizing same-sex marriages.  But the bureaucratic requirements were impossible to meet given Maureen’s deteriorating condition, and time ran out far too quickly.  I sat in the funeral home with Suzanne, alongside Maureen’s brother and sister, barely able to endure bearing witness to my sister’s pain as she was forced to acquiesce to a death certificate listing Maureen as single and never married.

    As my mind listened to the Justices sparring with the lawyers about the constitutionality of denying same-sex marriage, my heart was with Suzanne and Maureen, James and John, and the countless other devoted same-sex couples who have suffered a similar denial of dignity.