LGBT issues

  • September 24, 2014
    Guest Post

    by Robin Maril, Senior Legislative Counsel, Human Rights Campaign. This post is part of our 2014 Constitution Day symposium.

    Following last summer’s Supreme Court decision in U.S. v. Windsor invalidating Section 3 of the Defense of Marriage Act (DOMA), the federal government began recognizing same-sex couples nationwide for the first time. The majority of federal benefits and programs recognize couples regardless of where they live – employing a “state of celebration” standard. This standard looks to the laws of the state where the couple was married to determine the validity of their marriage. In practice, this has provided expansive recognition for legally married same-sex couples nationwide — including for federal tax purposes.

    In response to the Windsor decision, the IRS published revenue ruling 58-66 implementing a state of celebration standard for federal tax purposes and applying the generally applicable statute of limitations for requesting a refund to same-sex couples who were legally married and would have been recognized under IRS policy but for DOMA. This standard statute of limitations provides all taxpayers with an option to amend a tax return up to three years after filing. This revenue ruling therefore retroactively recognizes same-sex married couples who were legally married but were required to file as individuals because of DOMA beginning in 2010.  

  • September 23, 2014

    by Caroline Cox

    In The New York Times, Adam Liptak reports on the efforts of some of the best lawyers in the country to argue the next same-sex marriage case in front of the Supreme Court.

    A new report from Lauren-Brooke Eisen, Nicole Fortier, and Inimai M. Chettiar of the Brennan Center for Justice argues for new core goals for federal prosecutors.

    Sarah Stillman writes in The New Yorker on civil forfeiture and cases of police stripping citizens of their cash and cars even when not charged with a crime.  

    The Supreme Court will have three more chances to rule on religion cases in the new term, reports Richard Wolf in USA Today.

    Lyle Denniston examines what would happen if the Supreme Court declines to take up a same-sex marriage case this term in the Constitution Daily

  • September 18, 2014
    Guest Post

    by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

    In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

    In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

    Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

    Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.

  • September 17, 2014

    by Paul Guequierre

    It has been apparent for quite some time that the U.S. Supreme Court will decide on marriage equality in the not-so-distant future. Since last year’s historic decisions striking down Section 3 of the Defense of Marriage Act (DOMA) and putting an end to California’s Prop. 8, court after court has struck down state marriage bans across the country.

    Last month Justice Ruth Bader Ginsburg said the court will not "[duck] the issue" if a marriage equality case comes properly before the court and predicted that would happen by June 2016 at the latest. Last night, Justice Ginsburg was talking marriage equality again. Speaking to an audience in Minnesota, the Associated Press reports Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court's timing. She said "there will be some urgency" if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

    Now the question is which case or cases will make it to the high court. The Associated Press reports Ginsburg didn't get into the merits of any particular case or any state's gay marriage ban, but she marveled at the "remarkable" shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships. Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts.

  • September 17, 2014

    by Caroline Cox

    Congratulations to Mary L. Bonauto, member of the ACS Boston Lawyer Chapter Board of Advisors, and Jonathan Rapping, member of the ACS Georgia Lawyer Chapter Board of Advisors, on their selection as a 2014 MacArthur Fellow (commonly known as the MacArthur Genius award).

    Happy Constitution Day! Dahlia Lithwick of Slate examines the holiday and whether the celebration is itself unconstitutional.

    In The New York Times, Adam Liptak previews an upcoming Supreme Court case that examines the privacy of statements made during jury deliberations.

    Brian Bakst of The Associated Press reports on Justice Ruth Bader Ginsburg’s recent comments that a ruling on same-sex marriage from the U.S. Court for the Sixth Circuit could influence when the Supreme Court weighs in.

    In The New Yorker, Jeffrey Toobin explores how the standard of “undue burden” is disappearing from abortion rights debates and cases.