Steve Sanders

  • April 7, 2017
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, and affiliated faculty in political science, Indiana University Bloomington

    Going back at least to 1977, majorities of Americans have agreed that gays and lesbians “should … have equal rights in terms of job opportunities.”  The number hit 89 percent in 2004. Gallup apparently stopped asking the question in 2008, perhaps because the social consensus was so overwhelming that there was nothing useful to be learned from further polling.

    If American government operated the way civics books tell us it does, Congress, acting on such an overwhelming public preference, would long ago have enacted federal legislation outlawing employment discrimination against gays and lesbians. 

    But Congress does not work this way. Constituent preferences do not always get translated into policy. For example, Congress has shown a longstanding and “persistent bias against constituent will on LGB rights,” and “Republicans consistently oppose” such rights “regardless of constituent preferences.” Legislators also know most people don’t pay much attention (except in the most extraordinary situations, such as Ryan/Trumpcare) to what Congress does or does not do. And as Ilya Somin has been documenting for years, too many Americans are ignorant about politics and public affairs. 

    Moreover, Congress is broken. Partisan gerrymandering subverts principles of fair representation. And the current Republican majority is an “insurgent outlier” that is incapable of governing

  • February 27, 2017
    Guest Post

    by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law

    Donald Trump last week rescinded the Obama administration’s guidance to schools concerning their obligations to transgender students. This change in federal policy now requires the Supreme Court to decide whether and how to deal with its first major transgender rights case, which involves a transgender Virginia high school boy, Gavin Grimm.   

    We should hope that the Court decides to abstain and to dismiss the case as improvidently granted. That outcome would preserve Grimm’s victory in the lower court and avoid the potentially damaging results of the justices entering this fray too soon. Gavin Grimm’s achievement is too important – yet too fragile – to risk it becoming a vehicle for making bad law that could harm large numbers of transgender students now and in the future. 

    Unlike the four major gay/lesbian rights victories the Court handed down between 1996 and 2015, culminating in nationwide marriage equality, this case, Gloucester County School Board v. G.G., is not about grand constitutional principles like equality and liberty. The Trump administration’s action removed the primary issue in the case, which was one of administrative law: whether lower courts should have deferred to the Obama administration’s view that Title IX, the federal statute that was originally enacted to afford women equal opportunity in education, requires schools to allow transgender students to use restrooms and locker rooms that are consistent with their gender identity rather than their biological sex. 

    With the administrative law question now moot, the Court could still decide the case as a matter of statutory interpretation: that is, regardless of the executive branch’s shifting policy views, how should Title IX apply to transgender students’ ability to use sex-segregated facilities? But by asking the parties for their views on how to proceed, the Court last week signaled it may at least be thinking about dismissing the case.

    The Court should do so. Grimm won in the Fourth Circuit, but his lawyers from the ACLU opposed certiorari and argued that it is too soon for the Supreme Court to authoritatively settle the Title IX question one way or the other. As other courts of appeals consider similar cases, Grimm’s attorneys wrote, those courts “will produce a consensus or a circuit split. In either event, the issue would benefit from further exploration in the lower courts.”

    There is a strong body of case law in the lower federal courts that a statute passed to combat sex discrimination can also be used to combat discrimination on the basis of gender identity. But almost all these cases involved adults in the context of employment discrimination. Grimm’s case is the first involving transgender students, schools and restrooms.

  • June 30, 2016
    Guest Post

    by Steve Sanders, who teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.  He was co-counsel on the Human Rights Campaign’s amicus brief in Obergefell v. Hodges.    

    The mid-summer anniversaries of Supreme Court’s marriage equality decisions, United States v. Windsor (2013) and Obergefell v. Hodges (2015), should be celebrated not only for the ends they accomplished – ending the federal non-recognition of same-sex marriages, then bringing about full nationwide marriage equality – but for the way they elevated gays and lesbians to a place of constitutional dignity.  This principle of equal dignity must play a central role as the legal and political movements for LGBT equality continue to evolve. 

    The Supreme Court laid important groundwork for marriage equality in Romer v. Evans, where it observed that states could not single out gays and lesbians for special legal and political disadvantages that were intended “not to further a proper legislative end but to make them unequal to everyone else.”  It continued the project in Lawrence v. Texas, where it said gays and lesbians “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” under sodomy laws.  In earlier posts on this blog, Sarah Warbelow and Paul Smith have reflected on the significance of these cases. 

    Marriage equality was, of course, a considerably larger and more controversial question, because it implicated the social meaning of homosexuality and whether gays and lesbians were entitled to have their lives and relationships accorded the same value and respect by government as heterosexuals.  Religious conservatives and their agents in the Republican Party had been working for years to prevent the possibility of such equal dignity. The federal Defense of Marriage Act (DOMA), which was struck down in Windsor, and the state bans on same-sex marriage, struck down in Obergefell, represented some of the worst characteristics of American politics. They were enacted through campaigns of fear, dishonesty and anti-gay animus. One of the marriage bans invalidated by the Supreme Court was a Kentucky state constitutional amendment passed in 2004; a state legislator told the Louisville Courier-Journal at the time that the amendment’s supporters had shown “an unparalleled level of zeal, intolerance and hatred” toward gays. In 2010, the federal judge who struck down California’s Proposition 8 found that the campaign in support of that 2008 ballot measure had presented voters with a “multitude of … advertisements and messages” intended to “convey[] to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.”

    As challenges to DOMA and state marriage laws made their way through the federal courts, two things were becoming clear. First, these laws rested on flimsy and disingenuous justifications that were easily dismantled by most judges who confronted them. Second, public opinion was undergoing a stunning sea change, and a majority of Americans were becoming ready to accept marriage equality. Social change was moving hand-in-hand with legal change.

  • May 10, 2016
    Guest Post

    by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law, and affiliated faculty member in the IU Department of Gender Studies and the Kinsey Institute.  

    Why did the United States sue the governor and various state agencies of North Carolina?

    As an employer, sponsor of public universities, and provider of federally funded public safety programs and services, North Carolina’s state government is obligated to comply with the non-discrimination requirements of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Violence Against Women Act (“VAWA”).  All of these federal civil rights laws prohibit discrimination on the basis of sex. VAWA also prohibits discrimination by federal grant recipients like North Carolina on the basis of gender identity.  

    North Carolina’s recently enacted H.B. 2 requires that multiple-occupancy bathrooms and changing facilities located in North Carolina public agencies “be designated for and only used by individuals … based on their biological sex.”  “Biological sex” is defined as ““[t]he physical condition of being male or female, which is stated on a person’s birth certificate.” 

    On behalf of the United States, the Department of Justice (“DOJ”) alleges that this so-called “bathroom law,” as enforced against transgender persons, is illegal discrimination on the basis of sex.  (Other provisions of H.B. 2, such as its preemption of Charlotte’s city ordinance prohibiting discrimination on the basis of sexual orientation and gender identity, are not at issue in the suit.)

    Why did North Carolina Governor McCrory sue the United States?

    McCrory’s lawsuit asked for a declaratory judgment that North Carolina was not in violation of federal civil rights laws as the DOJ alleges.  Essentially, it was a preemptive strike in the face of warnings by the DOJ.  The legal questions in both suits are essentially the same. 

  • September 18, 2015
    Guest Post

    by Steve Sanders, who teaches and writes about constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law, Bloomington.

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    Advocates for civil rights and civil liberties often look to our Constitution in their quest for legal and social change.  But the processes of legal and social change also shape the contours, sometimes the very meaning, of constitutional guarantees.  Last summer in Obergefell v. Hodges, the Supreme Court applied the Fourteenth Amendment to transform the nationwide legal status of same-sex marriage.  But it is important to appreciate how same-sex marriage had already changed the Constitution.  

    On matters of individual liberty and equality, the Constitution is not a catalog of enumerated, narrow, and static rights, though most legal conservatives insist that we treat it that way.  Rather, it provides a set of bedrock values, values whose meanings grow and adapt alongside the growth of knowledge and human understanding. 

    As Chief Justice John Marshall wrote in McCulloch v. Maryland, a constitution is “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”  Justice William Brennan, one of the greatest champions of a progressive Constitution, observed,  “Our amended Constitution is the lodestar for our aspirations.  Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked.  Its majestic generalities and ennobling pronouncements are both luminous and obscure.”

    And as Justice Anthony Kennedy wrote in a decision invalidating laws that criminalized same-sex sex acts, “Had those who drew and ratified the [Constitution] known the components of liberty in its manifold possibilities, they might have been more specific.  They did not presume to have this insight….  As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

    In that 2003 decision, Lawrence v. Texas, the Court considered the last half-century of legal and social change, both in the United States and in other democracies, and found an “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”