The Past Work of State AGs in Advancing LGBTQ+ Equality and a New Vision for Their Efforts

Scenes outside the Supreme Court as three cases involving LGBTQ employment rights were argued at the Court.

This is the fourth piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs.

Seven years ago this month, the U.S. Supreme Court made marriage equality the law of the land in Obergefell v. Hodges, concluding that the Constitution protects the right of same-sex couples to wed. Like so many issues—past, present, and future—of LGBTQ+ equality, state attorneys general (AGs) were central players in the marriage equality fight.

In Obergefell, 20 state AGs fought in support of marriage equality. It was a landmark moment, given how quickly the landscape had shifted in the prior decade. But there were 18 states on the other side, arguing in support of discriminatory marriage laws, including Ohio which was defending its exclusion as a party directly before the Court. These divisions among state AGs have continued to play out on issues ranging from the intersection of religious freedom and anti-discrimination laws to the scope of federal civil rights protections in schools and the workplace.

From these efforts three themes of advocacy clearly emerge. First, state AGs have a crucial role to play in lending their voices and legal might to the fight for greater equality, acceptance, and inclusion. That is a role worthy of some celebration. Second, many state AGs continue to do serious harm with policies, legal arguments, and directives that degrade and undercut rights. As we applaud the crucial role that state AGs have played in the fight for equality, it is just as important to name the ways in which state AGs have worked to undermine LGBTQ+ rights. Third, the future of rights protection requires a new visioning for these chief law enforcement officers, which must include active and repeated interventions and increasingly innovative and bold uses of the power of these offices.

It is an effort we see beginning to formulate in response to the leaked draft decision in Dobbs v. Jackson Women’s Health Organization in the area of reproductive justice, and it will be absolutely necessary to maintain hard-fought victories in the LGBTQ+ equality front.

1. State AGs Have Demonstrated Great Leadership in Advancing LGBTQ+ Equality

In May 2008, the California Supreme Court ruled that the state’s constitution guaranteed the right of same-sex couples to marry. Thousands of couples in California—many of whom had waited decades—got married over the next six months. Then, California voters passed Proposition 8, which effectively reversed the decision of the state courts. Ted Olsen and David Boies, who had famously been opponents in Bush v. Gore, worked together to launch a federal lawsuit aimed at extending Loving v. Virginia to same-sex couples. In the early months of that case, then-state attorney general Jerry Brown made a crucial decision to decline to defend Prop 8, having concluded that it was unconstitutional. That pivotal decision meant that Prop 8 did not have the imprimatur of legitimacy because it had no backing by the government. Ultimately, the U.S. Supreme Court allowed a lower court decision to remain in place when it concluded that the proponents of the law did not have standing to appeal the case in Hollingsworth v. Perry. While the Prop 8 decision did not guarantee marriage equality in other states, it—when combined with United States v. Windsor—laid the groundwork for a cascade of new cases over the next 24 months which resulted in Obergefell. In fact, Jerry Brown’s decision to decline to defend Prop 8 set important precedent, as several state AGs followed suit in subsequent years and refused to defend discriminatory marriage laws.

But state AGs are not only on the defendant side of the “v”. In 2009, for example, then- Massachusetts Attorney General Martha Coakley partnered with GLBTQ Legal Advocates and Defenders (GLAD), and brought a case led by now-attorney general Maura Healey against the U.S. government challenging the federal Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman for the purposes of all federal statutes and regulations. Massachusetts’ suit, which was consolidated with Gill v. OPM (a case brought by private plaintiffs represented by GLAD), became the first-ever successful challenge to DOMA – and the first federal statute struck down on rational basis equal protection analysis since the 1970s.

These two cases were the beginning of a wide array of advocacy by state AGs to advance LGBTQ+ equality, especially over the past decade. Since that time, state AGs have pushed for transgender anti-discrimination protections under state and federal law, and they have challenged federal policies seeking to curtail these rights. They have fought against gay conversion therapy, pushed to ensure that the ACA includes extensive protections for LGBTQ+ people, and have advocated that schools be more welcoming and inclusive places, especially for people who have been traditionally bullied and harassed by other students and faculty. It is an expansive and growing track record of championing equality.

2. State AGs Have Done Significant Harm to LGBTQ+ People

As much as state AGs have been critically important vectors for change in the fight for LGBTQ+ equality, these efforts have been offset by AGs in conservative states who have sought, often in increasingly aggressive ways, to undermine LGBTQ+ rights.

The most recent and draconian example of the potential of state AGs to inflict serious harm on LGBTQ+ communities is Texas AG Ken Paxton’s issuance of a formal legal opinion that equated the provision of gender affirming care to minors with child abuse. AG Paxton did so after the Texas legislature declined to enact a ban on gender affirming care and despite overwhelming evidence that gender affirming care is safe and medically necessary for the health and well-being of transgender youth. The Texas Governor then used AG Paxton’s opinion as the basis for a directive requiring the state’s Child Protective Services agency to open child abuse investigations into all reports of families with children who are receiving gender affirming care. Unsurprisingly, the Governor’s directive was quickly challenged and enjoined by Texas state courts, but AG Paxton has continued to vehemently defend the directive and his opinion on appeal. Not only has AG Paxton’s actions—the issuance of the legal opinion, his fear-mongering public statements about gender affirming care and minors in connection, and the legal arguments that his office has advanced to defend his opinion and the directive—singled out transgender children and their families for devastating discrimination and harassment, but they have communicated to these families and their communities that transgender people should not exist and are unwelcome in Texas.

AG Paxton’s opinion is not an outlier in its purpose or effect. For decades, conservative AGs have defended state laws that barred LGBTQ+ people from marriage or adoption, criminalized sodomy, and sanctioned discrimination in public accommodations, housing, and employment. Conservative AGs across the country are currently defending state laws that bar transgender people from accessing healthcare and restrooms and that prohibit transgender kids from participating in school athletics. They do so despite the Supreme Court’s clear admonition that “if the constitutional conception of ‘equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno. State AGs have likewise led and joined multi-state litigations and amicus briefs that have argued in favor of denying LGBTQ+ people full equality and restricting protections at the federal level, including in Bostock v. Clayton County, Georgia, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Obergefell, Windsor, and Lawrence v. Texas. Indeed, conservative AGs have consistently used all of the tools at their disposal, including their pulpits, to make the case that targeting LGBTQ+ people for discrimination and harassment is necessary and appropriate.

Unfortunately, in many states, these efforts have helped shift public policy and discourse, particularly with respect to transgender people—as of this writing, 18 states have enacted laws that ban transgender kids from school athletics, at least 15 states have restricted access to gender affirming care or are considering laws that would do so, 6 states have censored discussion of LGBTQ+ people and issues in schools, and anti-LGBTQ+ sentiment continues to rise.

3. The Moment Calls for Aggressive Interventions to Protect LGBTQ+ People

As conservative states become increasingly bold in their attempts to rollback LGBTQ+ rights, and as the Supreme Court continues its rightward shift, it is imperative that state AGs continue to use their offices to protect LGBTQ+ rights, including in more aggressive and creative ways. While Justice Alito’s draft decision in Dobbs suggests that other precedents relying on the constitutional right to privacy, including Obergefell and Lawrence, are different from abortion and therefore not impacted by the decision, the fact remains that the draft opinion chips away at the doctrinal support for constitutionally protected privacy rights and sets the stage for future restrictions on LGBTQ+ rights as well. The threat to LGBTQ+ rights posed by the current Supreme Court is compounded by its sympathy to religious liberty claims, which are increasingly used to narrow LGBTQ+ rights. And the recent state legislative landscape makes abundantly clear that abortion restrictions are often adopted alongside anti-LGBTQ+ measures, suggesting that it may only be a matter of time until the Supreme Court takes up those measures too and further erodes these rights.

Against this backdrop, the roles that state AGs have historically played to advance LGBTQ+ equality—supporting lawsuits, advocating for new bills and policy positions, and investigating and suing private actors who engage in discrimination—will remain essential. But the preservation of rights in this increasingly hostile national landscape may require even more persistent and repeated interventions, and innovative, bold uses of the power of state AG offices. For example, building on the success of many state AGs in protecting LGBTQ+ people, AGs may consider further expanding that work by adopting a “whole-of-office” approach to civil rights enforcement, including with respect to LGBTQ+ rights. This model could include prioritizing civil rights and consumer protection investigations of violations of state anti-discrimination laws and strategic enforcement actions to advance rights, requiring criminal prosecutors to prioritize prosecutions of hate crimes and hate groups who target LGBTQ+ people and communities (even and especially when those attacks are from out of state), and directing assistant attorneys general who advise state agencies and defend state laws to employ an equity lens to their work to proactively mitigate any potential to harm LGBTQ+ people and communities.

State AGs may consider making further investments in community engagement and outreach, particularly in communities that have been historically marginalized and disempowered—especially Black and Brown transgender people. These communities are often skeptical of law enforcement and government agencies, so AGs must work intentionally and in community to build trust and to empower people to seek the assistance and protection of the office. This, in turn, will allow AGs to focus their work on the specific needs of the LGBTQ+ populations they serve and ensure that actions they take and statements they make help—not hurt—these communities.

In addition, state AGs should build upon existing multi-state partnerships by strengthening and deepening collaborations on civil rights issues, including LGBTQ+ rights. This can be achieved by sharing information about relevant trends or concerns in their states or policies that have proven particularly effective before a lawsuit has been filed or an investigation initiated. Proactive information sharing may lead to earlier interventions and consistent litigation and policy positions across offices. Likewise, state AGs can increase their collaborations with relevant federal agencies where there is synergy around the protection of LGBTQ+ people.

Finally, state AGs each have an important role to play in norm setting within their states. By setting transparent office priorities, taking public policy positions, making arguments in court and in briefs, opening investigations, and pursuing litigations, AGs communicate directly to the people of their states precisely who and what matters. By deploying all of the tools at their disposal, AGs can make clear in their states and, indeed across the country, that LGBTQ+ people not only matter, but merit the most zealous advocacy by their state to help realize true equality and liberation.

Amanda Hainsworth is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office. Jonathan Miller is Chief Program Officer at Public Rights Project. This article represents the opinions and legal conclusions of its author(s) and not necessarily those of the Office of the Massachusetts Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.

Carson v. Makin and the Dwindling Twilight of the Establishment Clause

[A version of this post will also appear at On the Docket, an online publication of the George Washington Law Review]

In Carson v. Makin, the Supreme Court held that Maine violated the Free Exercise Clause by excluding certain religious schools from a program that allowed parents to direct state funds to non-public schools. The case involved a challenge to a program that permitted parents in some rural school districts, which lacked adequate public schools, to use state subsidies for certain private schools. The statute did not categorically bar religious schools from eligibility to receive these funds, but it required participating schools to have a “nonsectarian” curriculum. The Supreme Court, with all six conservative justices joining the majority opinion, held that the exclusion of schools with a sectarian curriculum violates the Free Exercise Clause by subjecting those religious schools to unequal treatment without adequate justification.

Chief Justice John Roberts is not typically the author of opinions filled with smug disdain. But his opinion for the Court in Carson v. Makin certainly has that tone. The Court’s opinion treats the case as nothing more than a self-evident application of its prior rulings in Trinity Lutheran v. Comer and Espinoza v. Montana Department of Revenue. Both decisions rejected state laws, which had been based on state constitutional provisions, that excluded religious institutions from certain programs of governmental funding. Unlike Carson, however, those decisions focused specifically on the challenged statutes’ exclusion of religious entities because of their status – i.e., their religious identity. The opinions suggested, at least implicitly, that restrictions based on religious use of government funds would pose a different problem. In Carson, the majority opinion brushed aside that distinction with no explanation. “[T]hose decisions never suggested,” Chief Justice Roberts wrote, “that use-based discrimination is any less offensive to the Free Exercise Clause.”

However true that may be, use-based “discrimination” lies at the heart of traditional Establishment Clause limits on state funding of religious activity. The government may not sponsor or fund activities that are specifically religious – worship, religious instruction, and proselytizing. Or so constitutional lawyers thought for the past 75 years. The Court’s decision in Carson v. Makin has potentially opened a new world of mandatory government funding of specifically religious activity, throwing off many decades of precedent that tried to mesh equal treatment of religious institutions with the Establishment Clause’s restriction on government support for religion. Whatever balance might have existed before Carson is now history. The Court has decisively subordinated any Establishment Clause concerns to the right of equal funding under the Free Exercise Clause.

Carson v. Makin – The Decision

Those who follow the Court’s Religion Clause jurisprudence should not have been surprised at the decision in Carson v. Makin. The case involved a program of indirect aid – voucher financing – for non-public schools. The program required eligible schools to offer only “nonsectarian instruction.” That statutory limit dated back to 1981. Before then, parents could direct state tuition funds to any accredited school. In 1981, however, Maine’s legislature voted to exclude sectarian schools out of concern that such funding would violate the Establishment Clause. The concern was reasonable at the time, but the Court’s 2001 decision in Zelman v. Simmons-Harris resolved any doubts about the constitutionality of including accredited religious schools in a voucher financing scheme.

After describing the Maine program, the Court concluded that “[t]he unremarkable principles applied in Trinity Lutheran and Espinoza suffice to resolve this case.” Those unremarkable principles included (1) a determination that religious and secular private institutions are fully entitled to equal treatment under the Free Exercise Clause; and (2) the peremptory judgment that states do not have reasonable, much less compelling, independent grounds for imposing more restrictive non-establishment rules than those required under federal constitutional law. The second “principle” produces the Court’s disdainful treatment of Maine’s argument that the Court should respect its independent concerns about church-state separation, but it offers nothing new. The same arguments from Missouri and Montana met an identical fate in Trinity Lutheran and Espinoza. No respect for federalism is to be found here.

The first “principle” deserves a closer look. It is true that Trinity Lutheran and Espinoza rest on the Free Exercise Clause’s ban on discrimination against religion. But the cases seemed to recognize a limit on that principle, one that could only originate in the Establishment Clause. Categorical discrimination against a person or entity because of religious identity presumptively violates the Free Exercise Clause. Restrictions on government funding of specifically religious uses, however, such as worship or religious instruction, cannot be subject to the same categorical presumption of unconstitutionality because Establishment Clause jurisprudence had long imposed its own distinction between religious and secular uses of government funding.

The Court could have resolved this case with a narrower opinion that focused on the practical irrelevance of the status/use distinction for the Maine school funding program. The challenged program involves entirely indirect aid; parents are free to choose any (nonsectarian) school. The included private schools are free from nearly all controls over curriculum, state evaluation, and teacher qualifications. In other words, the state has no plausible responsibility beyond the minima of accreditation for the content of instruction that students receive in these schools. Thus, by focusing on the indirect character of the aid, the Court could plausibly have said that the link between the state and any potential religious use is broken by the private choice of parents. In that respect, Carson and Espinoza really are indistinguishable, and closely akin to Zelman.

Chief Justice Roberts did not choose this minimalist route for the decision, despite the majority opinion’s relative brevity and lack of engagement with counterarguments. Instead, he confirmed that the Court has firmly embraced the supremacy of free exercise interests over concerns about non-establishment of religion. The opinion thus stands in a long line of those, dating back to Justice Stanley Reed’s dissent in Illinois ex rel. McCollum v. Board of Education (1948), that have derided non-establishment norms as discrimination against religion in the public square.

The most important signal of this embrace of a long-rejected constitutional approach comes in the Court’s newfound refusal to recognize that distinctions based on religious identity differ profoundly from distinctions based on religious use. If the government must fund specifically religious activities when it funds analogous secular activity, what is left of the Establishment Clause in the funding context?

The New World of Religion Clause Law

At the time we write this post, the Court has under advisement Kennedy v. Bremerton School District, so for the moment we focus only on implications of this New World for government funding of religion. Kennedy, in which a public high school football coach claims a free exercise right to pray on the fifty-yard line immediately after games, may impose the emerging doctrines of the New World on speech by government agents in public schools. Funding alone, though, raises more than enough worries for those who retain some idea of a government limited in its capacity to promote religion.

In Carson, the Court suggests that Maine is not required to fund religious education. The majority offers a range of alternatives, primarily focused on expansion of the public education system either by bringing students to school (boarding schools) or bringing school to students virtually or in-person. Notably, however, the Court does not bless an alternative funding method Maine now permits in rural school districts that do not have a secondary school. Instead of allowing parents to choose the child’s school, the second method authorizes local education authorities to contract with a public or private school and to pay the full tuition of children who attend that “contract school.”

Following Carson, would Maine violate the Free Exercise Clause if it required private contract schools to conform to restrictions on religious teaching and activity that now apply to public schools? Contract schools involve direct aid, not parental choice – except the parent’s choice to place the child in a school without public funding – so does that take the practice outside the reach of Carson? Perhaps. But a contract solicitation that conditions eligibility on the school’s commitment not to engage in religious activity now seems the same as exclusion based on the school’s religious identity. Indeed, Trinity Lutheran involved a program of direct funding, and the Carson majority certainly did not discuss any relevant differences between the two cases. Despite the Court’s repeated emphasis on “parental choice” in Carson, we have no confidence that the distinction between direct and indirect aid has any more vitality after this decision than the distinction between religious status and use.

Although attention to the Court’s decision in Carson has focused almost entirely on its potential implications for education, the decision covers another broad domain of public spending – social welfare programs operated by private entities, including many faith-based organizations. Since the Charitable Choice legislation of the 1990s and President George W. Bush’s Faith-Based Initiative, the federal government has emphasized the right of religious institutions to participate in a wide variety of social welfare funding programs. Such programs include substance abuse treatment, adoption and foster care, social services that support job training and parenting skills, among many others. The rules that have governed these programs for the past two decades guard against discrimination based on religious status. Religious entities have the right to compete on equal terms for government funds. In light of longstanding constitutional norms, however, the rules explicitly forbid funding for religious uses of the funds. Providers may use government funds only for programs that do not include “specifically religious activities,” typically delineated in statute and regulation as prayer, worship, or religious instruction. Any provider that also engages in such activities must segregate them in time or space from the government-funded program, and delivery of program benefits may not be conditioned on the beneficiary’s willingness to participate in those activities.

Until the decision in Carson, we had good reason to believe that these conditions on government funding were required by the Establishment Clause. Now, however, those conditions have been called into serious question. A religious provider that believes it cannot confine its social welfare programs to exclusively secular components has always been categorically ineligible to apply for direct funding. After Carson, those providers will certainly challenge the program rules under the Free Exercise Clause. If conditions imposed on religious use of government funds are the same as discrimination based on religious identity, then government must eliminate those restrictions on aid for faith-intensive social welfare programs.

In eliminating such restrictions, government will inevitably confront problems with Free Exercise claims by program beneficiaries who want to receive government benefits without the incorporated religious messages. Governments at all levels will be forced into the impossible choice of trying to accommodate those individual objections, out of concern about the welfare of program beneficiaries who could be steered into unwanted religious experience, or moving the programs, long based on public-private partnerships, entirely into public institutions. As Justice Sotomayor wrote in dissent in Carson, this inevitably will result in a decrease in total services available.

Moreover, the Court’s decision in Carson calls into question other conditions on government funding. As we have seen many times before, including in last term’s decision in Fulton v. City of Philadelphia, government may include contract provisions – such as prohibitions on discrimination based on sexual orientation or gender identity – that some religious entities find objectionable. The Court resolved Fulton on seemingly narrow grounds, but Carson may give that decision a much firmer foundation in the Free Exercise Clause. A condition on receipt of government funds that effectively excludes one or more religious providers would once again invite strict scrutiny. That is what Justice Alito argued for in Fulton, though he assumed that the Court would need to overturn Employment Division v. Smith to reach that conclusion. By reshaping the non-discrimination principle into a broad primacy of free exercise over non-establishment and other legitimate governmental interests, Carson may undo such conditions without overturning Smith. Where there is a judicial will, there is a judicial way, and the Court’s treatment of free exercise claims in recent years suggests an indomitable will to prefer and protect the interests of religious actors over the competing interests of others.

The only solace we can offer to those who care about sound constitutional principles of religion-state relationships is this. Over time, any constitutional understanding that promises equal benefits to religion without imposing equal obligations on religion is likely to collapse from lopsided favoritism. The Religion Clauses demand symmetry – the government should not finance what it cannot regulate, and vice versa. This is why we defend the ministerial exception, which bars government regulation of the employment relationship with those who preach a faith. Government should neither regulate nor subsidize exclusively ecclesiastical activities, such as worship. A Court that demands public support to religion without holding it to account to public values will eventually lose its legitimacy on this subject, as the Roberts Court is at risk of doing on other subjects as well.

Conclusion

Dissenting opinions rarely understate the significance of the decision to which they object. But the dissents of Justices Breyer and Sotomayor do just that. Justice Breyer expresses concern that the majority has eliminated the “play between the joints” of the Religion Clauses, but that metaphor had been relegated to the facts of Locke v. Davey before Carson. Justice Sotomayor objects that the Court is dismantling the “wall of separation” between church and state, but that metaphor lost its salience long before Carson. The dissenters have missed or understated the radical, revolutionary character of the Court’s decision. With dismay, we have been observing this precise trajectory in Religion Clause law, but we are surprised that the New World arrived so soon, and with so little effort to explain the supposed defects of the regime it replaces.

Getting Front and Center to Confront Prejudice

Headshot of Doug Chin
Doug Chin, Former Hawaii Attorney General

Travel Ban Rally in front of the Supreme Court as Trump v Hawaii is argued inside on 4/25/18

This is the third piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs.

At the height of President Trump’s Muslim ban controversy, when lower courts deciding Hawaii v. Trump were consistently ruling that the ban was either blatantly unconstitutional or illegal or both, this comment showed up on the Hawaii Attorney General’s Facebook page:

“Get back in your corner, Hawaii.”

I was the Hawaii Attorney General at the time. My staff proposed the following reply:

“Nobody puts Hawaii in a corner.”

It was tempting. I said no, partly because I wasn’t sure millennials would know the Dirty Dancing reference, but also because this was our official government account and I wanted to maintain a certain decorum. Our otherwise snappy and perfect comeback to an anonymous troll remained an inside joke until today.

I knew very well what staying in the corner meant. Even though I was born in Seattle with all the rights and privileges of a U.S. citizen, I was still the son of Chinese immigrants who had learned English as a second language, left their homes and families, and came to America in hopes that their future kids (my sister and I) could have a better life. The knowledge of all that parental sacrifice ingrained in me early the responsibility to be a “model minority” – work hard, excel, and don’t call attention to yourself. “The nail that sticks up gets struck down” was a constant and even comforting mantra. I dumbed down my verbal answers in class to not look too smart. I was careful not to offend others with political statements and, due to how I was raised, I even looked down on those who did. In college, I never once marched in or participated at a political event. Same goes for law school.

Historically, Americans of Asian descent have faced serious forms of prejudice. In the late 19th century, the Chinese Exclusion Act banned Chinese immigrants from entering the country. During World War II, on February 19, 1942, Executive Order 9066 went into effect from the U.S. government. Its stated purpose was to provide “every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national defense utilities.” The result of Executive Order 9066 was the imprisonment of more than 100,000 Japanese-Americans, many of whom were citizens. Yet, no case of espionage or sabotage by a Japanese-American was ever recorded during World War II. Though some brave individuals spoke up in outrage to these unjust laws – including Fred Korematsu, whose case against the United States, Korematsu v. United States, 323 U.S. 214 (1944), led to the U.S. Supreme Court upholding the constitutionality of Executive Order 9066 – most did not.

State Attorneys General Can Check the Federal Government

On January 27, 2017, I watched from my geographically remote corner of the country while President Trump’s initial Muslim ban took effect. Trump made good on his campaign statements that “Islam hates us,” that people who practiced the Muslim religion were terrorists, and that he would order a “total and complete shutdown” of Muslims entering the country when he took office. As a result, air passengers in flight were told they would not be allowed to enter the U.S. when they arrived. Green card holders from the banned Muslim-majority nations heard the same. Refugees who had waited years to escape horrific circumstances in their own countries were immediately barred from entering the country, a ban that has remained largely unchanged to this day. The weekend the ban took effect, protesters marched in airports around the country, including 5,000 miles away from Washington, D.C. in Honolulu’s typically non-controversial, tourist-friendly airport, where hundreds of people, many of Asian American and Pacific Islander (AAPI) descent, gathered to speak out.

My immediate reaction was that this was a dangerous step down a fast, slippery slope towards internment camps based upon blatant, unconstitutional discrimination or worse. Several of my state attorney general colleagues at the time held similar concerns or had other serious misgivings towards the President’s action. Within days, lawsuits brought by states including Hawaii against the Muslim ban were filed in federal courts.

In our federal system, states have a unique capability and responsibility to serve as a check on the federal government. States, through their attorneys general, can successfully claim standing and assert themselves into controversies in ways individuals or private organizations cannot. Under the parens patriae doctrine, a state attorney general may assert claims on behalf of the state’s residents and to act as the legal protector of those who are unable to protect themselves. A state may also sue the federal government when the state’s own wide-ranging sovereign interests, including the interests of its public agencies and institutions, come under threat. In Hawaii v. Trump, courts at all levels expressly accepted or did not reject Hawaii’s assertion that the travel ban, enforced upon public university students and faculty from Muslim-majority countries, would diminish the university experience and injure the State. The successful assertion of standing on behalf of a state unlocks the door to the federal courthouse and the potential for a federal judge to issue an order which carries a nationwide effect. In this way, individual state attorneys general possess an extraordinary superpower which they can use to challenge and halt federal government actions. Recent history has shown that state attorneys general can wield this power for good and just causes or for not-so-good purposes. That is why the various races for state attorney general are so important in states that elect their attorney general, and the races for governor are important in states in which the governor appoints the attorney general.

The Fight Against the Muslim Travel Ban

From his courtroom in Honolulu, Hawaii federal judge Derrick K. Watson, an individual of Pacific Islander descent, granted Hawaii’s motion to block the Muslim ban and ordered that it take effect nationwide. This caused then-U.S. Attorney General Jeff Sessions to publicly complain that there was an “activist AG” (apparently referring to me) in Hawaii and that it was too bad a judge on an “island in the middle of the Pacific” could unilaterally halt the President’s executive action. (In response to Sessions, my office tweeted a picture of the Hawaii state constitution, a social media post I did allow). In his ruling that the Muslim ban violated the Establishment Clause of the First Amendment to the U.S. Constitution, Judge Watson wrote this statement that struck me as especially poignant: “The Court will not crawl into a corner, pull the shutters down, and pretend it has not seen what it has.”

In a 5-4 decision, 585 U.S. __ (2018) – after the U.S. Government issued what Trump described as a “watered-down version” of his original Muslim ban, and then issued a third iteration which diluted, at least on paper, the focus on Muslim-majority nations – the Supreme Court in 2018 overturned the lower courts’ decisions and upheld the ban. The majority opinion expressly referred to the 1944 Korematsu decision as “gravely wrong” and overruled it, though in her dissent, Justice Sotomayer wrote that the Trump decision “redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

I have been asked on occasion whether it was difficult to go from being a self-proclaimed member of the “model minority,” who throughout my life had watched most controversies from the “corner,” to becoming the Hawaii Attorney General who sued the President of the United States and took it all the way to the U.S. Supreme Court. Frankly, the decision to sue the President took less time than deciding what to say in response to the social media posts which followed. To me, the Muslim ban represented dark, fearful, irrational hatred. It was brazenly unconstitutional and illegal. It was a step backwards from progressive ideals. It was not a path or direction I wanted my country to take. It stood against values of diversity, acceptance and inclusion which make Hawaii, and the rest of America, so special. As a state attorney general, bringing a lawsuit to uphold and respect the U.S. Constitution and its laws was required by the oath I made when I took office. As an Asian American, it was an opportunity to be front and center in the ongoing fight to confront prejudice in America.

Doug Chin is a Director at Starn, O’Toole, Marcus & Fisher. He served as Hawaii’s Attorney General from 2015-2018 and was the first Hawaii Attorney General to chair the Conference of Western Attorneys General, and the first to serve on the Executive Committee of the National Association of Attorneys General. He serves on the Board of Directors of the Leadership Center for Attorney General Studies.

ACS Condemns Attacks Against Trans Youth

Trans rights are human rights. Yet, conservative lawmakers in more than half the states in this country are engaged in an orchestrated, intentional assault on them, specifically the rights and identities of trans youth. Those who are targeting trans youth for partisan gain must be indifferent to the immense pain and harm they are inflicting. These legislative and executive attacks are repugnant and move states in the wrong direction. ACS condemns these efforts to marginalize and silence trans individuals.

The Human Rights Campaign, which tracks anti-trans legislation, defined 2021 as the worst year for anti-trans legislation, with over 280 anti-LGBTQ bills introduced in 33 state legislatures. Over 130 of these were explicitly anti-trans. This continues a dangerous trend, whereby every year since 2015 becomes the “worst year” for anti-trans legislation, surpassing the year before it. This year-over-year increase compounds the egregious nature of these bills and their collective impact.

The bills and executive actions aim to do a variety of things, none of them good or valid or informed by fact. They run the gamut from Florida’s “Don’t Say Gay Bill,” which is now state law and forbids conversation about gender identity or sexual orientation in K-3 elementary school, to the Texas governor’s efforts to unilaterally criminalize gender-affirming care for minors and investigate the people involved in providing it, to bills in several states striving to ban trans youth from participating on sports teams that align with their gender identity. The different lines of attack against trans youth are all interconnected, and any state that starts down one line of attack, whether it’s banning trans youth from sports or denying gender affirming care, is likely to pursue more laws that threaten, marginalize, and harm trans youth.

These efforts are premised on falsehoods and egregious mischaracterizations of gender affirming care, gender identity, and what it means to be trans. They perpetuate the Right’s war on science and flagrantly disregard the advice of medical experts and major medical organizations in the country, including the American Academy of Pediatrics and the American Medical Association, which consistently advocate against these dangerous state bills and in support of ensuring access to gender affirming care for trans and non-binary youth.

Many of these state laws and directives have been or will be litigated. Texas Governor Greg Abbott’s directive to investigate those involved in gender affirming care has already been stopped by a court. But, the legal fate of these efforts is secondary to their real purpose, which is to marginalize and harm trans people, censor any conversation about them, and spread fear using the law or the threat of legal action as a weapon of oppression.

Even if every bill is stopped, either in state houses or in courts, they have already had an immense and harmful impact. The Trevor Project recently conducted a poll of LGBTQ youth and found that 66 percent of respondents said the debates on trans rights have had a negative impact on their mental health. Eighty-five percent of trans and non-binary youth said the same. This is devastating and long-lasting, particularly when research repeatedly demonstrates the benefits of gender-affirming care for reducing depression and suicide in transgender and nonbinary youth.

As Christopher Wright Durocher, ACS Vice President for Policy and Program, said on our Broken Law Podcast, this is not the first time that we have seen politicians seek to score partisan points by targeting members of the LGBTQ community. The pursuit of marriage equality in this country was a multi-decade battle against these same types of attacks, meant to marginalize and shame LGBTQ members. Now that marriage equality is the law of this land, members of the Right have shifted their focus to trans individuals, specifically trans youth. These attacks are not new, although the decision to target children is particularly and truly reprehensible.

We need to strengthen trans rights in this country. We need to be focused on ensuring legal protections against discrimination in housing, employment, and public accommodations, on ensuring that insurance plans cover gender affirming care, on banning conversion therapy, on ensuring access to accurate state identification documents, and other necessary reforms to ensure that trans people are included, respected, and safe.

Determining appropriate mental, behavioral, and medical healthcare should be exclusively the decision of transgender and gender nonconforming youth and their families, in consultation with their doctors. Such personal decisions should not be politicized to provoke fear and hate. LGBTQ youth deserve to see themselves respectfully reflected in the curricula they receive at school. LGBTQ youth deserve safety. And the attempted erasure of LGBTQ youth should be resoundingly condemned.

ACS stands in solidarity with trans people and their families and affirms the human dignity and rights of all LGBTQ people.

Partners in the Fight for Environmental Justice: Ways That State Attorneys General Can Support Community Efforts

US House Committee Natural Resources Environmental Justice Forum Rep. Raul Griijalva L.A. River Center 2015" by The City Project

This is the second piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs.

Environmental justice (EJ) communities (which we define in our Web Resource on Environmental Justice as communities of color and low-income communities that face disproportionate environmental burdens), have been fighting for decades to preserve their right to a healthy environment. Many barriers to that work exist, however. State attorneys general (AGs), as government lawyers, can play an important role in addressing those barriers. Below, we lay out several areas where attorneys general can and, in some cases, have been able to use their unique powers to do just that.

I.      THE PARTICIPATION PROBLEM

Where other, wealthier or more politically-connected communities may have access to lawyers to file suit or can apply pressure to policymakers to address pollution and other environmental issues, EJ communities have in some cases historically lacked these resources and thus can face entrenched and structural barriers to remedying environmental hazards.

In 2017, the residents of South Vallejo, California, a community with disproportionately high environmental burdens, learned about a proposed cement factory which would negatively impact the already poor air quality in their neighborhood. In a video about the fight against the plant, advocates describe the resource-intensive movement to resist its approval. Community members spoke with their neighbors to increase awareness, the community needed resources to install air monitoring to characterize the pollution already present, and the attorney general’s office contributed legal expertise by submitting a comment letter describing the compounding negative health effects the plant would have, and critiquing the environmental impact analysis completed for the plant. The fight was a contentious one, but ultimately the community, with the support of the AG, was able to prevent approval of the plant.

This case study highlights both the enormous odds an environmental justice community might face as well as the work that a government attorney, like the state attorney general, can do to support a cause. The principles of environmental justice adopted by the First National People of Color Environmental Leadership Summit emphasize that environmental justice work is community led. This commitment to partnership and community-led decision-making is a key part of movement (or community) lawyering, a concept that was discussed recently in a webinar hosted by the Environmental Law Institute. EJ communities have solutions to the environmental problems they face, and many have goals and desires for the solution process. The role of a lawyer—and specifically of a government lawyer—is to partner in bringing about those solutions.

II.     A ROLE FOR STATE ATTORNEYS GENERAL

Attorneys general are the top lawyers in their states, which gives them unique powers and opportunities to make a difference. AGs can and have used their positions to contribute to the work needed to address EJ issues. By supporting citizen science work, promoting strategies to facilitate community engagement, working to ensure that settlement funds from environmental violations return resources to affected communities, and prioritizing communication and empowerment, AGs can help to address the problems raised by participation barriers alongside and in support of EJ communities fighting for environmental justice.

A.  Citizen Science

Environmental issues often involve technical scientific questions, and it can be difficult to address those questions as a community member. “Citizen science” aims to bring the community into the discussion by empowering residents to collect data and learn about the science behind the environmental issues they face. In Massachusetts, Attorney General Maura Healey has facilitated community participation through a program focused on air quality. Launched last year, the project monitors air quality in Springfield, MA, which was once called the asthma capital of the United States. Community members provide input on the location of air quality monitors through the Air Monitoring Project Advisory Committee – helping to spread the message regarding air quality in the community, and collaborating with other organizations working for environmental justice in the Springfield region. This participation model empowers community members to take control of the science and documentation of the health hazards they face, provides them with critical data about pollution loads, and empowers them to make stronger arguments for air quality protection (through permit and policy decisions) in and around their community.

B.  Stakeholder stipends

Participating in a stakeholder group is a critical way for EJ community members to bring their concerns and proposed solutions before policymakers. However, participation is resource-intensive. Participants may have to commute to the meeting location, may require childcare if the meeting is in the evening, and may need internet access if the meeting is held online. In Washington, Attorney General Bob Ferguson advocated for stipends that community members participating in stakeholder groups can use to address resource barriers. AG Ferguson proposed a bill, which has been adopted as law, which provides stipends for people who participate in stakeholder groups. In addition to reimbursing community members for their expenses, it helps demonstrate that community members’ time and input is valued.

C.  Settlements with community benefits

When there is an environmental violation in a community that is already overburdened by pollution, one of the principles of environmental justice is that the community should benefit from any remediation—both through cleanup and direct payments (which might otherwise go into government budgets). Often environmental cases are settled by mutual agreement between the parties before they go to trial, and AGs can work to ensure that those settlements direct funds towards the affected community. For example, in 2011 when the New York AG’s office reached a settlement with the responsible parties over a massive oil spill in Greenpoint, Brooklyn, the settlement included an allocation for a large community fund. The Greenpoint Community Environmental Fund webpage explains that the community collaborates with the AG to distribute the money within the fund and to ensure that projects that receive funds align with local priorities. Community participation allows residents to set priorities regarding what projects are funded and implemented.

D.  Listening sessions

Another participation issue is that community members may feel that their concerns are not heard, or may struggle to use online or phone-based resources to report their concerns to the government. Listening sessions can help to address this issue. In many states, AGs have held listening sessions or town halls, like the session held by the former New Jersey AG on environmental justice programs in the state and the Illinois AG’s recent town hall. The town halls are specifically designed to create a time and place for all interested people, including residents of EJ communities, to speak directly with the AG’s staff members. This helps to remove many barriers that community members might otherwise face when presenting their concerns, priorities, and proposed solutions for environmental problems. For example, residents are not required to go through websites or fill out what might be complex forms reporting violations, residents are not required to have internet access or even phone service when town halls are held (safely) in person, and residents are able to speak face-to-face with government staffers, which helps to build connections and trust.

III.     CONCLUSION

AGs can play a critical role in boosting the work of EJ community advocates as they partner with them to achieve the goals of the community. Removing barriers to participation is a critical component of EJ work. These examples show some of the tools AGs have and should use to address those barriers. To learn more about environmental justice and the ways AGs are confronting environmental injustices, please see Expanding AG EJ Practice, produced in partnership between WE ACT for Environmental Justice and the State Energy & Environmental Impact Center.

Bethany Davis Noll is the Executive Director of the State Energy & Environmental Impact Center at the NYU School of Law. She is a member of the ACS State Attorneys General Project’s Council of Advisors. You can find her on Twitter at @bdavisnoll.

Colin Parts is a Staff Attorney at the State Energy & Environmental Impact Center at the NYU School of Law.

A Week of Death Begs for Death Penalty Abolition

Over the next seven days, South Carolina, Tennessee, and Texas plan to execute four people. Even for those who do not categorically oppose the death penalty, there are unique and disturbing reasons to object to each of these planned executions.

One execution involves reliance on junk science, misinformed and biased jurors, and potentially exculpatory DNA evidence that the state is refusing to pursue. Another will end the life of a seventy-eight-year-old man with multiple chronic health conditions who requires a wheelchair and has spent three decades on death row. A third execution involves a grieving mother coerced into offering a vague and dubious confession mere hours after her two-year-old daughter’s death. The final execution in this gruesome group would see the return of the firing squad.

A Week of Death

Let’s take a closer look at what this deadly week tells us about how the death penalty operates in the United States in the year 2022.

Thursday, April 21, 2022: Tennessee

After three decades on death row, Tennessee is preparing to execute Oscar Smith, who is seventy-two. The state plans to execute him regardless of the fact that an expert in fingerprint analysis has discredited the forensic techniques used to connect Smith to the murder scene as “outdated and unreliable,” and recently discovered DNA evidence from the only murder weapon recovered does not match Smith or any of the victims. This suggests that an unidentified perpetrator may have used the weapon. Despite all of this evidence, the Tennessee Court of Criminal Appeals has refused to reopen Smith’s case.

Last year, the same court refused to consider statements from three jurors in Smith’s case who raised serious questions about the trial, including an admission by a juror who hid from the trial judge his belief “that anytime someone killed a person on purpose they should get the death penalty.” Another juror admitted to erroneously believing “that life in prison was just 13 years [and] did not think 13 years was enough time for this crime,” and so voted for the death penalty and convinced another juror to do the same.

In addition, there is no public safety or penological justification for killing a septuagenarian, as research repeatedly demonstrates the minimalist public safety threat posed by someone of his age. Tennessee’s insistence on disregarding all of this evidence and moving forward with the execution of a potentially innocent man suggests that this is more about vengeance than justice.

Thursday, April 21, 2022: Texas

On the same day that Smith faces execution in Tennessee, Texas plans to execute another septuagenarian, seventy-eight-year-old Carl Buntion, the oldest person on death row in the world. Buntion, who has spent thirty years on death row, suffers from hepatitis, vertigo, sciatic nerve pain, and arthritis. He requires the use of a wheelchair. During his time in prison, he has been cited for only one violent act, punching another prisoner in 1999.

There is no doubt that Buntion committed the crime for which Texas intends to kill him. But his poor health combined with his behavioral history while incarcerated demonstrate that he poses no danger to others either now or in the future, defying one of the core justifications that proponents of the death penalty offer. He is a frail old man who has spent the final decades of his life in prison – and if he were not executed, would spend the remainder of his life in prison. As Justice Stephen Breyer observed in response to a petition the U.S. Supreme Court rejected, Buntion’s "lengthy confinement, and the confinement of others like him, calls into question the constitutionality of the death penalty." Buntion’s execution may satisfy the bloodlust of some, but it will not satisfy justice.

Wednesday, April 27, 2022: Texas

If it’s possible to rank the tragedy of these cases, the death of 2-year-old Mariah Alvarez and the subsequent conviction and death sentence of her mother, Melissa Lucio, may be the most tragic. After hours of relentless interrogation on the same night her daughter died from injuries sustained in a fall down the stairs two days prior, Lucio told police “I guess I did it.” A since-disgraced Cameron County prosecutor used those words, which were spoken under duress that few of us could imagine—along with dubious forensic evidence and a medical examiner’s report possibly influenced by the alleged confession—to obtain a death sentence.

The Innocence Project has found that Lucio has a credible claim of innocence. And yet, last October, the U.S. Supreme Court denied the petition to review her case. Lucio is currently seeking clemency from Texas Governor Greg Abbott. As the result of public pressure, current Cameron County District Attorney Luis Saenz has made some indication that he would intervene to prevent Lucio’s execution if clemency is not offered, but has provided no specifics.

Lucio’s death sentence is obscene, and a condemnation of the death penalty as an institution. A week before she is scheduled to die, Lucio must wait and hope that one of the handful of people with the power to stop her execution will intervene, not to release her from prison, but at least to prevent her unnecessary death.

Friday, April 29, 2022: South Carolina

South Carolina does not have access to the drugs required to conduct lethal injections, the prevailing method of execution in the United States (which itself is arguably cruel and unusual punishment). But rather than abandoning the death penalty after a decade without any executions, South Carolina passed a law last year to revive two archaic methods of execution: the electric chair and the firing squad. In a cruel twist, the new law gives people facing execution the option to choose which barbaric method they will die by.

Richard Moore is the first person to face execution under this new law. On Friday, April 15, Moore made the Hobbesian choice to die by firing squad. He will be the first person executed by firing squad outside of Utah in more than six decades. In his statement choosing to be shot to death, Moore said, “I believe this election is forcing me to choose between two unconstitutional methods of execution.”

We believe so, too.

A Bigger Picture

The questionable justifications for each of these executions are disturbing enough. It’s compounded by the fact that throughout much of the rest of the nation (and the world), the death penalty has disappeared.

Over the past two decades, the number of state executions in the United States annually has steadily declined. In 1999, at the height of executions, states killed ninety-eight people. That number has consistently and dramatically declined over the past twenty years, with just eight people being executed by states last year. In that same period, eleven states abolished the death penalty and three more imposed moratoria, leaving the total number of states with a potentially active death penalty at less than half. Of the remaining death penalty states, seven have not executed a person in at least a decade.

The trends are clear—the death penalty is falling out of favor in this country. And the reasons are equally clear—nearly 200 people sentenced to death have been exonerated, as many as seven percent of lethal injection executions have been botched, and in recent years the racial inequities and arbitrariness inherent in the imposition of the death penalty have received the attention they deserve.

Absent intervention by a court or governor, this upcoming week of death will more than double the number of state-sanctioned killings in the United States in 2022 and will place the total state executions so far this year at only one fewer than in the entirety of 2021. It’s a grotesque way to mark the end of April, a month typically defined by renewal and new life, and a tragic declaration of the need for death penalty abolition in this country.