Supreme Court

  • 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 28, 2015
    Guest Post

    by Charlotte Garden, Assistant Professor and Litigation Director of the Korematsu Center for Law & Equality, Seattle University School of Law. Follow her on Twitter @CharlotteGarden.

    In the wake of two major Supreme Court decisions about public sector unions, anti-union groups moved quickly, filing a raft of new complaints seeking to capitalize on and extend Harris v. Quinn and Knox v. SEIU Local 1000.  The first of those cases, Friedrichs v. California Teachers Association, has now reached the Court, which will consider granting cert later this summer.  A cert grant in Friedrichs will signal that at least four Justices believe that the Court is willing to go beyond Knox and Harris ― and possibly even impose “right to work” in the public sector.

    The Friedrichs petitioners call on the justices to overturn Abood v. Detroit Board of Education.  In Abood, the Court held that states and elected unions ― which are required to treat all the workers they represent fairly whether or not they join ― may agree to allow the union to charge each represented worker for his or her share of the union’s work on their behalf.  Abood’s caveat, though, is that employees have a First Amendment right to opt out of contributing towards their union’s other spending, including its spending on politics.  The Abood Court struck this balance in recognition of the relative weakness of workers’ First Amendment interests when their union is bargaining over pay, benefits and other working conditions with a public employer ― especially when weighed against employers’ and unions’ interests in promoting labor stability by preventing free ridership.  Abood is a foundational case that not only governs the relationship between public sector unions and the employees they represent, but also announced the principle that now undergirds other government regulatory programs that incidentally involve speech.

    The lawyers bringing Friedrichs and cases like it were likely encouraged by dicta in Harris and Knox, both authored by Justice Alito.  (Harris held that “partial public employees” ― those whose working conditions are set jointly by the state and individual private clients ― could not be required to pay anything towards the cost of union representation.  Knox held that unions must obtain affirmative consent from workers before charging them the optional portion of mid-year dues increases.)  And indeed, both opinions, but especially Harris, criticize Abood.  Nonetheless, it is telling that Harris left Abood entirely intact, despite the petitioners’ exhortations that the case should be overruled.  That suggests that at least one of the justices in the five-justice majority had significant reservations about overruling Abood just one year ago.

  • April 28, 2015
    Guest Post

    by Amy Bergquist, staff attorney, The Advocates for Human Rights. Follow her on Twitter at @alb68.

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

    A decision by the U.S. Supreme Court recognizing a right to marriage equality would make headlines around the world, but the implications for the rights of people who are gay, lesbian, bisexual, transgender or intersex (LGBTI) in other countries may be complex.

    The Advocates for Human Rights collaborates with partner organizations advocating for LGBTI rights in African countries like Cameroon and Tanzania, where the governments not only criminalize consensual sexual conduct between people of the same sex, but also condone or even participate in discrimination and violence targeting LGBTI people.  We know from our partners that government officials, religious leaders, celebrities and the media fuel anti-LGBTI animus by arguing that, in African culture, “homosexuality . . . is considered universally as a manifestation of moral decadence that should be fought.”
     
    Many countries have laws on the books prohibiting sexual conduct between people of the same sex, but Cameroonian authorities aggressively enforce their country’s law; courts convict people simply for acting or dressing in a gender-non-conforming manner.  Vigilante groups in Cameroon organize patrols to round up suspected violators and hand them over to the police.  Violence and discrimination targeting LGBTI people are widespread.

    The complexity of advocacy for LGBTI rights in the international context arises out of the false characterization, in some parts of the world, of LGBTI rights as a “western invention.”  In collaboration with our partners in Cameroon, we submitted a report to Africa’s leading human rights body, the African Commission on Human and Peoples’ Rights, debunking this myth.  In Cameroon, as in many other African countries, criminalization of consensual same-sex sexual conduct is a legacy of the colonial era.  In our report, we quote Dr. Sylvia Tamale, law professor and former dean of the law faculty of Makere University in Kampala, who explains: “There is a long history of diverse African peoples engaging in same-sex relations. . . . Ironically, it is the dominant Judeo-Christian and Arabic religions that most African anti-homosexuality proponents rely on, that are foreign imports.”  Indeed, as I’ve argued at The Advocates Post, anti-gay extremists from the United States and Europe attempt to export their animus to Africa and the former Soviet Union.

  • April 28, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

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

    The Supreme Court’s forthcoming decision in Obergefell v. Hodges brings the issue of marriage equality once again to a place of prominence in the national conversation.  Unsurprisingly, the intensity of opposition from those with religious convictions against “changing” the definition of marriage to include gay and lesbian couples has only grown, fueled by the prospect that the Court may extend its decision in United States v. Windsor and hold that the Constitution requires all 50 states to treat same-sex couples equally.

    The gathering storm is easy to see.  A federal court ruling striking down Alabama’s ban on marriage recognition was met with a furious, theologically-driven backlash led by state supreme court Chief Justice Roy Moore, who explained his opposition to marriage equality by saying, “It takes away the very definition ordained of God.  A different definition destroys the definition of marriage.”  On the legislative front, Indiana passed a “Religious Freedom Restoration Act” (RFRA) at the urging of anti-gay religious activists, carving out protection for those with religious objections aghast at even the potential they might be compelled by anti-discrimination laws to participate in marriage ceremonies.  Assuming that the pure rejectionist camp is unsuccessful in trying to engage in 1950s-style “massive resistance” to a pro-equality ruling in Obergefell, the real issue comes down to what, if any, sort of religious exemptions should be considered for those who do not wish to participate in the weddings of same-sex couples.