LGBT issues

  • March 22, 2013
    Guest Post

    by Eric J. Segall, Professor of Law, Georgia State University College of Law. Professor Segall is author of Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    Progressives and liberals in favor of same sex marriage need to be careful what they wish for when the Court decides the Defense of Marriage Act (DOMA) and Proposition 8 cases later this term. It would be easy to argue that the Court should overturn DOMA and invalidate Proposition 8 on the grounds that governmental classifications based on sexual orientation require heightened scrutiny, and neither California nor the federal government can satisfy that standard. The problem with the Court imposing a national rule, however, may be a serious backlash against the decision resulting in long term pain for everyone on the left. The lessons of Roe v. Wade might be instructive.

    In the years preceding Roe, there was a popular momentum flowing through the states to make the right to choose a bit easier but legislative efforts to secure the right were blocked by the efforts of a strong and well-funded Catholic minority. There is a similar momentum now (albeit only recently) on the issue of same-sex marriage. The Court’s decision in Roe, however, not only slowed the momentum but created a significant backlash though not in the traditional way most people think. In ground breaking work, Professors Reva Siegel and Linda Greenhouse have suggested that, when it comes to the right to choose, women truly are better off today than they would have been without Roe, and that the case for backlash after Roe is overstated. They may be right when it comes to the right to choose, but they did not purport to ask another related but equally important question. Although the backlash on abortion specifically may be overstated, the use of the Court’s decision in Roe by right wing groups on issues other than abortion has been a major problem for the left. The rise of the New Right in the 1970’s led by Jerry Falwell and Phyllis Schaffly, the emergence of brash, young,  and conservative anti-choice republicans  and judges in the 1980’s, and the difficulty of confirming liberal judges in the Senate, can in significant part be traced to the criticism of the Court’s decision in Roe. As Cass Sunstein has argued, the rise of the Moral Majority was certainly assisted by opposition to Roe. Meanwhile, as far as the long-term effectiveness of Roe is concerned, not only does the case currently hang by the thread of Justice Kennedy’s robes, but in many states between the two coasts poor women still have an enormously difficult time securing safe, affordable abortions. This is not to say that the Court erred in Roe, but it is a fair question whether the backlash to the decision across a broad range of important issues was worth the somewhat limited abortion rights gained by the decision.

  • March 21, 2013
    Guest Post

    by Kevin M. Cathcart, Executive Director, Lambda Legal. Cathcart’s piece is a part of Lambda Legal’s blog roundtable, “From Sex to Marriage: How We Got From Lawrence v. Texas to the Cases Against DOMA and Prop. 8.” The roundtable will include commentary from Paul M. Smith, an ACS Board Member, and the attorney who argued Lawrence before the Supreme Court. See ACSblog’s symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    It might be hard for some to imagine, given the rapid pace of our progress, but as recently as 10 years ago, lesbian and gay Americans in many states were considered criminals in the eyes of the law—simply for having sex with someone of the same gender.

    And the discrimination went far beyond criminal law. Parents were denied custody of their children. Qualified workers were turned down from jobs. Prospective tenants were refused housing. All because of archaic and discriminatory laws that targeted and criminalized same-sex intimacy in 13 states.

    But in 2003, one Supreme Court decision changed everything. After decades of fighting against sodomy laws, Lambda Legal’s historic victory in Lawrence v. Texas opened a new path toward LGBT equality. For the first time, the Court established that lesbian and gay men share the same fundamental right to private intimacy with another adult that heterosexuals have.  

  • March 20, 2013
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law, Saint Paul, Minnesota. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    As most readers realize, the Supreme Court asked all parties in both of the upcoming marriage cases to brief and argue issues of standing. The possibility that either or both of the cases could be dismissed on the basis of a lack of Article III standing should therefore be taken seriously. 

    In particular, regarding the Prop 8 case, Hollingsworth v. Perry, I have given some thought to a 2011 opinion of the California Supreme Court that specifically addressed the standing of the Prop 8 proponents.   The Prop 8 proponents emphasize this California opinion in defending their standing before the U.S. Supreme Court. However, in this posting I assert that the U.S. Supreme Court should not give any substantial weight to the California Supreme Court’s opinion.

    To start with, I’ll say that dismissal for lack of standing in either or both of the cases could have at least a modestly positive result for same-sex marriage rights. A lack of standing in either case would be attributed to the litigants petitioning the Court in opposition to same-sex marriage.  Failure of standing would thus go against the opponents of same-sex marriage. Contrarily, any such dismissal is most likely to favor, at least to some extent, the litigants who are advancing same sex-marriage. For those of us supporting same-sex marriage rights, that would most likely be a positive development. 

    By the same token, however, any such dismissal would also probably result in a relatively narrow ruling with relatively limited effects. That is, in the Prop 8 case, dismissal for the proponents’ lack of standing could result in the reinstatement of the District Court’s determination that Prop 8 is unconstitutional. But such a result would not necessarily affect the constitutionality of similar propositions adopted in other states. 

  • March 19, 2013
    Guest Post

    by Brian Moulton, Legal Director, Human Rights Campaign. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    Alongside the core due process and equal protection considerations about marriage equality before the Supreme Court in Windsor v. United States and Hollingsworth v. Perry is a question that could have broader ramifications in the movement for lesbian, gay, bisexual and transgender equality – whether laws that discriminate based on sexual orientation should be subject to some form of heightened judicial scrutiny. 

    To date, the Supreme Court has not directly addressed the question of whether heightened scrutiny should apply to laws that discriminate against gays and lesbians. While many of the U.S. Courts of Appeal have done so, and answered in the negative, those precedents were almost universally dependent on the Court’s decision in Bowers v. Hardwick upholding the constitutionality of sodomy laws, a decision that was repudiated nearly a decade ago in Lawrence v. Texas, leaving those precedents standing on the shakiest of ground. It is no wonder then that, in one of the first post-Lawrence cases to consider the issue, the Second Circuit in Windsor concluded that heightened scrutiny should indeed apply to sexual orientation-based classifications.   

    In its heightened scrutiny analysis, the Court has typically looked at whether the group defined by the classification in question has experienced a history of discrimination and whether that classifying characteristic is relevant to an individual’s ability to contribute to society. The Court has sometimes considered two additional factors: whether that defining characteristic is immutable, and whether the group is politically vulnerable.    

  • March 19, 2013
    Guest Post

    by Nicole G. Berner, Associate General Counsel of the Service Employees International Union (SEIU) and Counsel of Record in Labor Movement Briefs filed in Hollingsworth v. Perry and United States v. Windsor & Elena Medina, SEIU Law Fellow. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.


    A broad coalition of labor unions, representing more than 20 million American workers, and the interests of working people more broadly, filed amicus curiae briefs in support of the respondents in the Supreme Court challenges to the Defense of Marriage Act (DOMA) and California’s Proposition 8. Both cases will come before the Court for oral argument next week. The briefs, the only to outline specifically the economic damages of these laws, advocate for the right of all working people to fair and equal treatment in the workplace, and for the right of lesbian, gay, bisexual and transgender workers to receive the same employment benefits and protections as their heterosexual co-workers.

    Marital status plays a key role in determining eligibility for-- and taxation of -- a myriad of workplace benefits and protections. These benefits, together with state and federal programs for working people and their families, form the safety net upon which most Americans rely for retirement and financial assistance in the event of illness, injury, disability or death. They are particularly crucial for families in which only one adult works outside of the home or is eligible for employer-provided benefits. Laws codifying marriage discrimination, such as DOMA and Proposition 8, largely deprive LGBT workers of access to these benefits and protections and thereby perpetuate a two-tiered workforce in which LGBT workers are treated inferior to their heterosexual counterparts and unfairly relegated to a lower stratum of economic security.

    Health Care Benefits. Employer-provided health care provides the most common source of medical coverage for working Americans and their families. But for same-sex couples, DOMA and Proposition 8 create a litany of impediments that complicate, penalize or flatly prohibit full family coverage. Without equal access to employer-provided spousal health care benefits, some non-covered same-sex partners are forced to rely on coverage available through public assistance or to go without health insurance entirely. Even for workers whose employers extend coverage to gay and lesbian spouses or who can afford to purchase private insurance for the non-covered spouse, DOMA and Proposition 8 deny access to tax benefits and raise health care costs for same-sex couples significantly, forcing such couples to pay thousands of dollars more on healthcare each year.