LGBT issues

  • April 30, 2015
    Guest Post

    by Suzanne B. Goldberg, professor and director of the Center for Gender & Sexuality Law, Columbia Law School

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.  It originally appeared in the National Law Journal.

    Love and commitment have nothing to do with marriage.  So said the state of Michigan to the U.S. Supreme Court in Obergefell v. Hodges on Tuesday while defending its ban on marriage for same-sex couples.  Instead, marriage’s purpose as a civil status is to ensure adults take responsibility for their biological children, according to Michigan’s lawyer.

    The difficulty for Michigan and the three other states seeking to preserve “defense of marriage” laws ― Kentucky, Ohio and Tennessee ― is that this procreation-focused definition of marriage is fundamentally unbelievable.  Many people ― including gays and lesbians ― understand marriage to have “nobility and . . . sacredness,” as Justice Anthony Kennedy observed during the argument in Obergefell and its companion cases.  Many states likewise recognize that marriage “enhance[es] the dignity of both parties,” Kennedy added.

    The procreation-focused argument also makes no sense against the backdrop of the states’ marriage laws.  There is no childbearing litmus test for people seeking to marry, as Justice Ginsburg pointed out.  Nor do states restrict marriage to couples seeking to have children biologically rather than by adoption.  And no state, Justice Stephen Breyer noted, favors biological children over adoptive children.  Importantly, the state’s argument that marriage provides the “glue” needed to keep parents connected to their children also fails to explain why gay couples are excluded from marriage.  As Justice Elena Kagan said, “It's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.”

  • April 29, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and the Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

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

    Nothing in the almost two and a half hours of oral arguments altered my prediction that at the end of June 2015 the Supreme Court will hold that state laws prohibiting same-sex marriage deny equal protection to gays and lesbians. The only question is whether it will be 5-4 or 6-3 to declare unconstitutional laws prohibiting marriage equality and whether the opinion will be written by Chief Justice John Roberts or Justice Anthony Kennedy.

    Why the certainty of this prediction? To begin with, the states that are defending their bans on same-sex marriage – Kentucky, Michigan, Ohio, and Tennessee –failed to articulate any legitimate justification for their laws. In reality, the laws prohibiting same-sex marriage stem from a moral condemnation of homosexuality, but the Supreme Court has been explicit that it will not accept such a justification for laws discriminating against gays and lesbians.

    So the states are trying to defend their laws by stressing tradition and the historic definition of marriage as being between a man and a woman. But a tradition of discrimination is not an acceptable reason in the courts for continuing to discriminate. In 1967, in Loving v. Virginia, the Supreme Court declared unconstitutional a state law that prohibited interracial marriage. Such laws had existed throughout American history, even in California until the 1940s. But the Court rightly gave no deference to this tradition and rejected the argument that the definition of marriage should be left to the political process.

    The primary argument made by the states is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, declares in its brief:   “Separating marriage from procreation dramatically changes the state’s interest in the institution. . . .  It is the state’s interest to encourage opposite-sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”

  • April 29, 2015
    Guest Post

    by Janson Wu, Executive Director, Gay & Lesbian Advocates & Defenders (GLAD). Wu is a recipient of ACS's David Carliner Public Interest Award.

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

    On April 28, I sat in the U.S. Supreme Court to watch Mary Bonauto argue for the freedom to marry for all same-sex couples across our nation.  Her opening argument rang as true today as 12 years ago, when Mary won the Goodridge case, making Massachusetts the first marriage equality state:

    "The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society. If a legal commitment, responsible and protection that is marriage is off limits to gay people as a claim, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”

    As the Executive Director of Gay & Lesbian Advocates & Defenders (GLAD) where Mary has worked for 25 years, I was proud to witness Mary stand in front of the nine justices to argue for the equal dignity and humanity of LGBT people.  Over the course of the argument, which included passionate and articulate performances by U.S. Solicitor General Donald Verrilli and Doug Hallward-Driemeier (who argued the question of recognition of out-of-state marriages), the debate over our equal worth as citizens and as people never felt more substantial.

  • April 29, 2015
    Guest Post

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

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

    It was cold but clear yesterday morning just after dawn outside the Supreme Court.  If you have seen any of the photos circulating in social media, you can feel the optimistic mood of nearly everyone there – from the cheery, dark-suited lawyers on the Supreme Court bar line to those on the line designated for the general public, some of whom had traveled across the country and slept out for several nights, with rainbow flags aloft, waiting for this morning to arrive.

    Both lines wound from in front of the sunrise-reflected courthouse to a point well around the corner, hundreds of people in all.  Also in the mix were loads of media – more than at any previous gay rights argument that I can remember, with reporters standing tall so they could be filmed with the Court as backdrop as they explained to the nation what is at issue in the marriage cases about to be argued.

    It was hugs aplenty among old friends who have worked together for so many years on LGBT rights cases.  If totaled, the collective experience of movement lawyers, academics and law firm cooperating attorneys might have included as many years as the millennia some of the justices later invoked inside the courtroom when they talked about the lengthy history of “traditional” marriage.

  • April 29, 2015

    by Caroline Cox

    Mark Walsh of SCOTUSblog provides a view of the oral arguments for the consolidated same-sex marriage cases. Among the commentary on the arguments comes are Jess Bravin and Brent Kendall in The Wall Street Journal, Adam Liptak in The New York Times, and Robert Barnes and Fred Barbash in The Washington Post.

    Elias Isquith argues at Salon that the Baltimore riots should help Attorney General Loretta Lynch as she shapes her agenda.

    Also at Salon, Jay Driskell discusses how the influence of respectability politics means that the important questions and lessons of the Baltimore riots are being ignored.

    Peter Baker of The New York Times reports that 2016 presidential candidates have all declared their interest in reforming the criminal justice system and tackling mass incarceration.

    The Brennan Center for Justice publicizes a new book on mass incarceration from American political leaders on both sides of the political spectrum.