The Specter of Dictatorship and the Supreme Court’s Embrace of the Unitary Executive Theory

Democrats may have rejoiced at President Biden’s decision to remove Trump holdover Andrew Saul as the Commissioner of the Social Security Administration. But they should think twice about the long-term effects of claiming a constitutional power to fire a commissioner appointed to a six-year term without invoking the statutory provision allowing for-cause removal.

My book, The Specter of Dictatorship: Judicial Enabling of Presidential Power, explains that the unitary executive theory, which embraces presidential removal of agency heads for political reasons, provides a pathway to autocracy. The Supreme Court, however, has not taken the risk of losing democracy into account in its recent decisions approving the theory. We remain at risk of permanently losing our democracy, and the Court must consider how unrestrained removal authority can be abused in future cases, even if President Biden’s use of it appears reasonable.

The Framers and Ratifiers of the United States Constitution unanimously embraced the goal of establishing a permanent Republican government. Many of the debates on the Constitution revolved around figuring out how to use government structure to avoid autocracy— “despotism” in the language of the period. The Constitution contains only one removal provision, and it authorizes the Senate to remove the President and other government officials after impeachment by the House, not presidential removal. Accordingly, Alexander Hamilton opined in the Federalist Papers that removal of officers requires the consent of the Senate. He explained that the Constitution sought to prevent appointment of “obsequious instruments” of presidential “pleasure.” The Constitution sought to substitute loyalty to the law and the Constitution for loyalty to the head of state by requiring all officers of the government to swear an oath to protect and defend the Constitution.

Yet, the Supreme Court has embraced the unitary executive theory, which maintains that the President has sole control over the executive branch of government. In Seila Law LLC v. Consumer Financial Protection Bureu (CFPB), the Court held that the Constitution gives the President the power to fire the sole director of the CFPB for political reasons and that a statute only authorizing for-cause removal was unconstitutional. The Court opined that this power to fire officials arbitrarily helped the President “take care that the laws be faithfully executed.”

The Seila Law Court, however, stopped short of overruling precedent accepting for-cause removal protection for members of independent multimember commissions performing quasi-legislative and quasi-judicial functions. At the same time, it eroded that precedent by only endorsing commission independence when the commission performs no executive functions. Just last month, however, the Court may have further undermined that earlier precedent in Collins v. Yellen, by declaring the nature of the power an agency exercised irrelevant to the constitutionality of for-cause removal protection.

The litigation of these cases took place during a period when President Trump was using his removal authority not to secure faithful law execution but to undermine the rule of law and tilt the electoral playing field in his favor. President Trump, for example, fired the head of the Department of Homeland Security and most of its component agencies in part to establish immigration policies that defied U.S. law protecting asylum seekers. Trump fired Inspector General Atkinson precisely because he obeyed the law requiring communication of whistleblower complaints to Congress and made it clear he would fire people who testified truthfully about the President’s efforts to pressure Ukraine’s government into announcing an investigation of President Biden’s son—Hunter Biden.

Neither the majority nor the dissent in Seila Law and Yellen, however, discuss how a President can use unlimited removal authority to undermine the rule of law and democracy. This is a rather shocking omission in light of the weaponizing of removal during the Trump administration as a tool for that very purpose.

The Specter of Dictatorship shows that elected authoritarians around the globe have used centralization of the chief executive officer’s control over the executive branch of government to destroy democratic governments—relying principally on case studies of democratic erosion in Turkey, Hungary, and Poland. Like most democratic governments, these governments embraced independent (or multiparty) prosecutors, media regulators, and electoral commissions before electing an autocrat to the top post. After an autocrat came to power, however, these governments amended their Constitutions or passed legislation creating governments like those that the unitary executive theory points to—allowing the chief executive to remove incumbents and people critical of government policies with his supporters.

The prosecution service, once brought under the chief executive’s control, protects the ruling party’s supporters and persecutes its opponents. Trump’s efforts to secure announcement of corruption investigations against political opponents emulated a tactic of Hungarian strongman Viktor Orbán, whose prosecution service announces corruption investigations prior to elections only to quietly drop the charges afterwards to avoid embarrassing judicial reversal. Partisan takeover of electoral commissions allows the autocrat to tilt the electoral playing field through gerrymandering and efforts to burden voting by opposition groups. Thus, even though elections take place regularly in “new autocracies” like Hungary and Turkey, the autocrat and his party become quite entrenched. Parochial Americans look at the Republicans’ new election bills as a revival of Jim Crow, but the provisions authorizing legislative takeover of electoral commissions and the increasingly precise and suffocating gerrymandering have much in common with the techniques elected autocrats use to remain in power for very long periods without clear majority support. Finally, the new autocracies weaken opposition media and strengthen supportive media through economic pressures and licensing, although Turkey has supplemented these tactics with jailing of opposition journalists in recent years. In Hungary, the economic and licensing pressures alone destroyed most of the opposition media.

The Supreme Court’s unitary executive jurisprudence may accomplish through judicial fiat what elected autocrats abroad achieved through the more democratic processes of legislative actions and referenda reshaping the Constitution—a freeing of the chief executive from checks and balances constraining his power. In the United States, tradition rather than constitutional structure most robustly supports prosecutorial independence. The Court’s jurisprudence already makes it impossible to fully adopt Cass Sunstein’s suggestion that Congress make the DOJ independent to safeguard us from the sorts of abuses witnessed during the Trump administration. The federal media and election regulators, the FEC and the FCC, are independent agencies. The Court’s signals in Seila Law and Collins suggest that the Court will at some future date considering ending their independence. Doing so would clear the way for a President to use these agencies to attempt to throttle opposition media and strengthen the current drive to make elections unfair.

The problem, however, proves broader. A President with autocratic tendencies can use just about any government power to reward his friends and punish his enemies. President Trump showed this on numerous occasions. For example, he pushed the Pentagon not to give Washington Post owner Jeff Bezos’ Amazon a cloud computing contract and suggested that Governors must not criticize him if they wanted to get federal assistance to fight COVID-19. The ability to arbitrarily fire government officials supports that kind of abuse.

The Court will have occasions in the future to consider whether to extend or curtail its dangerous endorsement of the idea that the President must have a political removal authority so that government officials “fear and obey” the President. The Court has gone far in Seila Law and Collins to relax justiciability barriers to private challenges to the internal checks and balances that help hold a Democracy together. In both cases, no case or controversy existed because the government did not defend the constitutionality of the federal statutes involved and the President had not removed the agency director. The Court appointed an amicus to defend the statutes providing for-cause removal protection for agency heads and heard the cases anyway. In Collins, the Court blew past statutory prohibitions of lawsuits by shareholders in Fannie Mae and Freddi Mac, using a logic that gives every citizen in the country a potential right to challenge the independence of government agencies.

If the Court is to remain true to the Founders cherished goal of establishing a permanent Republic, it must consider the potential of a unitary executive to be an autocratic executive. While Biden’s removal of Commissioner Saul seems consistent with the rule of law. We may remain one lost or stolen election away from losing our democracy permanently through the usual process—abuse of removal authority to destroy the rule of law.

Reclaiming EEOC's Mission

When Congress created the Equal Employment Opportunity Commission (EEOC), it declared that the purpose of the agency was to “prevent any person from engaging in any unlawful employment practice” prohibited by Title VII of the Civil Rights Act of 1964. The EEOC similarly states on its website that its mission is “to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”

During the waning  weeks and months of the Trump administration, the EEOC adopted a number of policies that undermined the agency’s mission and impeded its ability to enforce Title VII, the Equal Pay Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. Upon taking office in January 2021, President Biden replaced the Trump-appointed Chair and Vice Chair of the Commission with his own appointees, thus transferring administrative control of the agency to them. The EEOC’s new leadership, the Biden administration, and Congress have taken steps to reverse some of the Trump-era damage and return the agency to its original mission, including reinstating EEOC’s statutorily mandated obligation to share EEO-1 data with state and local fair employment practice agencies; revoking an executive order that effectively prohibited federal agencies, contractors, and grantees from conducting meaningful diversity, equity, and inclusion training; and repealing a regulation that severely limited EEOC’s ability to conciliate cases.

Much, however, remains to be done. Even though the five-member Commission now has new leadership, its majority remains in the hands of three Trump appointees, and it will stay that way until at least July 2022 unless one of those Commissioners decides to leave before the expiration of his or her term. For now, therefore, the Commission likely will be unable to make major changes in policy, such as adopting, repealing, or revising existing guidance documents or regulations. When a new majority is finally in place, the Commission can take a number of steps to rebuild and strengthen the agency’s ability to accomplish its mission, including:

  • Reinstituting the Collection of Pay Data. In 2016, after years of consideration and collaboration with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) as well as a study by the National Academy of Sciences, the EEOC adopted, and the Office of Management and Budget (OMB) approved, a requirement that employers report summary earnings data for their employees by sex, race, ethnicity, and job category (EEO-1 Component 2 Report). In August 2017, however, the Trump OMB stayed the Component 2 pay data collection, and the Trump EEOC then discontinued the collection. Subsequent court decisions held that the EEOC and OMB had violated the Administrative Procedure Act (APA) when they suspended the data collection. The court vacated OMB’s stay, reinstated OMB’s previous approval, and ordered the EEOC to collect the Component 2 data for 2017 and 2018. In 2020, however, OMB approved EEOC’s request to abandon the collection of Component 2 pay data.  As soon as it is in a position to do so, the Commission should seek OMB approval to resume the collection of pay data that will enable it to analyze and investigate patterns of compensation discrimination.
  • Revising the EEOC’s New Compliance Manual Section on Religious Discrimination. After the November 2020 election but before President Biden took office, the EEOC majority under its prior leadership swiftly proposed and then approved a sweeping revision of Section 12 of the EEOC Compliance Manual, which covers religious discrimination. Unlike the previous Section 12, which had been in effect since 2008, the new Section 12 contains a number of provisions that are designed not to protect workers from discrimination based on their religious beliefs and practices, but rather to enhance the ability of employers to discriminate against workers based on the employers’ professed religious beliefs. (The Trump OFCCP, also after the election, issued a similar rule that allows federal contractors, including for-profit corporations, to discriminate against workers based on the contractors’ professed religious beliefs.) For example, new Section 12 of the EEOC’s Compliance Manual indicates that for-profit corporations may qualify for Title VII’s religious organization exemption; that religious organizations may discriminate in favor of employees who share their employer’s religious observances, practices, or beliefs; that religious employers may be permitted to engage in sexual and racial harassment as well as other discriminatory practices; that the “ministerial exception” previously created by the Supreme Court may deprive many religious organization employees of any protections under the antidiscrimination laws; and that the First Amendment and the Religious Freedom Restoration Act may provide private employers with defenses against claims of religious discrimination and failure to accommodate employees’ religious beliefs and practices. As soon as it is in a position to do so, the Commission should revise Section 12 to bring it back into line with the purpose of Title VII, which is to protect workers from discrimination.
  • Extending Employer Recordkeeping Requirements from One to Three Years. Federal antidiscrimination statutes require employers to make records relevant to allegations of unlawful employment practices, and to “preserve such records for such periods … as the [EEOC] shall prescribe by regulation or order ….” EEOC regulations implementing Title VII, the ADA, and GINA, in effect since 1991, require the preservation of “any personnel or employment record made or kept by an employer … for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later,” or “for a period of one year from the date of termination.” In many cases, this one-year period is not long enough to provide EEOC investigators (and plaintiffs in subsequent litigation) with sufficient information to get a full picture of the employer’s treatment of the charging party and any relevant class over time or to make meaningful comparisons with the treatment of other similarly situated employees. (EEOC’s ADEA regulations require employers to make and keep payroll and certain other records for a period of three years, but other personnel and employment records are required to be kept only “for a period of 1 year from the date of the personnel action to which any records relate.”) As soon as it is in a position to do so, the Commission should amend its regulations to require employers to maintain certain specified records (as set forth in the ADEA regulations) as well as all other records ordinarily made and kept by the employer (as set forth in the Title VII-ADA-GINA regulations) for a uniform three-year period so that EEOC investigators will have access to more complete information.
  • Returning to the EEOC’s Previous Delegation of Litigation Authority to the General Counsel and Regional Attorneys. For many years prior to the previous administration, the Commission had broadly delegated to the General Counsel the authority to commence or intervene in litigation in most cases, reserving that decision to the Commission itself only in limited circumstances such as cases involving a major expenditure of agency resources, a developing area of the law, or a likelihood of public controversy. This delegation, which included granting the General Counsel the ability to redelegate litigation authority to Regional Attorneys, allowed EEOC’s litigation program to proceed without excessive bureaucratic delays and undue political influence. In the last several months of the Trump administration, however, the Commission dramatically curtailed the General Counsel’s litigation authority and required Commission approval in far more cases. And in January 2021 – a few days before President Biden’s inauguration and his appointment of new EEOC leadership –the Commission imposed additional restrictions that have the effect of (1) subjecting all cases to a full Commission vote if the majority wishes to hold such a vote and (2) eliminating the General Counsel’s ability to redelegate to Regional Attorneys the authority to commence any litigation. As soon as it is in a position to do so, the Commission should review its litigation delegation policies and restore an appropriate balance that will allow the General Counsel and Regional Attorneys to perform their appropriate law enforcement functions without excessive delays or undue political intervention by the Commission.
  • Implementing the EEOC’s Strategic Enforcement Plan. The EEOC’s Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021, adopted by a bipartisan vote of the Commission, remains on the books. The SEP lists the following national substantive area priorities: (1) Eliminating barriers in recruitment and hiring; (2) Protecting vulnerable workers, including immigrant and migrant workers and underserved communities; (3) Addressing selected emerging and developing issues; (4) Ensuring equal pay protections for all workers; (5) Preserving access to the legal system; and (6) Preventing systemic harassment. The Commission should be developing technical assistance, guidance, and regulations – and pursuing litigation – designed to advance, rather than frustrate, these priorities. For example, the Commission should be protecting immigrant workers from employment discrimination (Priority 2); should be solidifying Title VII’s LGBTQ protections recognized in Bostock v. Clayton County, (Priority 3(c)); and should be protecting employees from retaliation, including human resources employees who report discriminatory practices (Priority 5(3)).

In the coming months and years, the EEOC will have the chance to repair some of the damage done during the Trump administration. The agency should take advantage of that chance and begin to reclaim its mission of preventing discrimination and advancing equal opportunity in America’s workplace.

Patrick Patterson served as the Deputy Director, Office of Federal Contract Compliance Programs, U.S. Department of Labor from 2014-2017. He also was the former Senior Counsel to the Chair, U.S. Equal Employment Opportunity Commission from 2010-2014.

 

Disconnected Decision from Supreme Court Leaves the Real Work to Voters and Congress

The U.S. Supreme Court’s shameful ruling in Brnovich v. Democratic National Committee drove home the fact that the Court is far removed from the needs of voters, and isn’t interested in ensuring democracy works for all, particularly for Latino, Native American, and Black voters in Arizona communities. The Court missed an opportunity to protect the freedom to vote at a critical moment in our history. Instead, six justices further damaged important protections Congress put in place to ensure that everyone has equal access to the ballot box. Today’s decision acknowledged the inequitable burden on Latino and Native American communities created by discriminatory laws. Ultimately, though, the Court didn’t think that burden mattered and upheld two discriminatory Arizona laws, which had previously been invalidated. 

But it does matter here in Arizona, where the dire state of our democracy often feels disconnected from the national chatter in Washington, D.C. This year so far, the Arizona legislature has passed three serious anti-voter bills, SB1485, SB1003, and HB2569, already signed into law by Governor Doug Ducey, as well as two more, SB1819 and SB1823, passed days before the Brnovich decision. The harm of these bills is alarming: They are likely to remove more than 100,000 voters from the vote-by-mail list, prohibit voters from fixing missing signatures on their ballots, and ban election officials from accessing crucial grant funding for voter education and election administration. SB1819 is directly based on conspiracy theories: It creates a special committee to review any “findings” of the election review scam and allows for outside groups with partisan ties (like the farcical Cyber Ninjas) to review voter rolls. 

There is a direct throughline between the current wave of anti-voter legislation and the two policies challenged in Brnovich. The first policy threw out provisional ballots cast outside of the voter’s designated precinct. The second restricted all but certain people (i.e., family and household members, caregivers, mail carriers, and elections officials) from handling another person’s completed early ballot. The state was only able to enact these ballot collection restrictions, as the Brnovich dissent notes, because the Court already gutted Section 5 of the Voting Rights Act in the Shelby County v. Holder decision. This policy was not able to obtain preclearance from the Justice Department under Section 5 while it was in effect. The Shelby County decision eliminated the need to obtain preclearance altogether, allowing the policy to be made law.

On its face, this case was about two Arizona procedures that created unnecessary and burdensome barriers for voters of color to cast their ballots and violated the Voting Rights Act, according to the abundant evidence and previous findings of the 9th Circuit Court of Appeals. But no person who works on voting rights in Arizona believes that this case was heard by the Supreme Court simply because the Court cared about the two policies challenged by voters under Section 2. 

Instead, we know that the Brnovich policies, anti-voter legislation, and the Supreme Court’s desire to undermine Section 2 are all part of a broader, coordinated attack on our freedoms — from our freedom to vote to our freedom to assemble and speak out for the things we believe in. No one pushing these decisions, policies, or bills are fueled by facts or data, but by an unrelenting desire to maintain their own power by removing and diminishing the power of everyday Americans.

Take how the ballot collection law challenged in Brnovich originated and was implemented. A former lawmaker “motivated by a desire to eliminate the increasingly effective efforts to ensure that Hispanic votes in his district were collected, delivered, and counted” introduced it. The final legislation passed by state lawmakers was based on “farfetched allegations of ballot collection fraud,” the 9th circuit found. 

But these farfetched fever dreams had very real consequences for Arizonans once the law was enacted. 

In October 2020, as Arizonans were casting their ballots for the general election, the attorney general sent uniformed deputies door-to-door in heavily Hispanic San Luis to question residents about their voting history as part of an investigation into “ballot collection.” This aggressive approach ultimately found a grand total of just four ballots that were delivered improperly under the law, despite questioning and potentially intimidating hundreds of residents. None of those four ballots were fraudulent, something already adequately prohibited under Arizona law. Instead, all the “ballot collection” ban did was create the ability to abuse a Hispanic community under false pretext, prosecute civic-minded people unaware of the law, and give anti-voter lawmakers the nefarious benefit of intimidating and suppressing voting in Black and Brown communities.

Now was the time when voters most needed the Court to say that enough is enough, voters pick our leaders — our leaders do not pick which voters to hear and which to silence. Instead, the Court chipped away at our foundational rights and blunted one of the last federal tools in our toolbox: Section 2 of the Voting Rights Act.

So it's up to voters and Congress to do what the Court did not. With the Voting Rights Act even more diluted, it’s more important than ever that citizens who care about our democracy get involved by checking their registration, voting, and joining efforts at the local and state levels to help make sure that state laws and local election procedures are implemented in voter-friendly ways. Finally, Congress must pass the For the People Act and the John Lewis Voting Rights Advancement Act to restore the full strength of the Voting Rights Act and provide protection against discriminatory policies like those in Arizona.

The stakes could not be higher. This is a turning point for our nation. We must decide if we are going to let a determined, anti-democratic minority take away our rights and freedoms or if we are going to push our country to live up to its highest ideals. 

As Justice Elena Kagan wrote in the Brnovich dissent, the Voting Rights Act “made a promise to all Americans. From then on, Congress demanded, the political process would be equally open to every citizen, regardless of race. One does not hear much in the majority opinion about that promise.” Therefore, it’s up to us to make sure they hear it. From the voter centers of Maricopa County to the halls of Congress, we must demand that promise be upheld. 

Alex Gulotta is the Arizona State Director & Acting National Director at All Voting is Local, a collaborative campaign of the Leadership Conference on Civil and Human Rights, which fights to remove needless and discriminatory barriers to the ballot in eight states - Arizona, Florida, Georgia, Michigan, Nevada, Ohio, Pennsylvania and Wisconsin. 

Relationship Check-in: LGBTQ People and the Supreme Court

During the long tenure of now-retired Justice Anthony Kennedy, gays and lesbians enjoyed a remarkable run of success at the Supreme Court. In four landmark decisions written by Kennedy, the Court gave a strong form of Equal Protection scrutiny to anti-gay legislation starting in 1996; swept away the last remaining sodomy laws in 2003; struck down the federal Defense of Marriage Act in 2013; and brought marriage equality to all 50 states with Obergefell v. Hodges in 2015.

Since Kennedy’s retirement three years ago, the Court has by some measures become more conservative. Still, last year it delivered a surprising and welcome ruling in Bostock v. Clayton County that Title VII, the federal law prohibiting sex discrimination in employment, also encompasses sexual orientation and gender identity. As LGBTQ anti-discrimination legislation fails to advance in Congress, we were again reminded that sometimes it takes unelected justices, not the political process, to deliver policies most Americans endorse.

As we approach the end of both a Supreme Court term and another Pride month, three things seem clear. First, the future of marriage equality is secure. Second, the aggressive legal war by religious conservatives against compliance with LGBTQ anti-discrimination laws has so far found quite limited success. Third, as transgender equality has become the frontier of the LGBTQ movement, the Supreme Court has declined to disturb favorable lower court rulings on important questions of trans equality.

Why Marriage Equality Is Secure

When conservative Catholic Amy Coney Barrett was nominated to the Court last fall, LGBTQ advocates sent out distress signals warning she might join an effort to roll back Obergefell. But that idea seems more far-fetched than ever.

There are now well over half a million married same-sex couples in the United States. Marriage equality enjoys record-high support of 70 percent of Americans, including a majority of Republicans. Same-sex marriage has become a quotidian and well-accepted fact of American life. The religious right – recognizing the crushing political, cultural, and legal defeat it received on the issue – has largely moved on.

In a little-noticed per curiam decision in 2017, Pavan v. Smith, the Court clarified that the Constitution protects equality not only in getting married but in being married. The case involved Arkansas’s attempt to deny birth certificates for the children of married same-sex couples on equal terms with straight couples. In Pavan, the Court rebuked Arkansas and ordered it to treat same-sex couples equally. The Court underscored that, when it said two years earlier in Obergefell that states may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples,” it meant also the “rights, benefits and responsibilities” that accompany marital status.

Chief Justice John Roberts, who had vigorously dissented in Obergefell, joined the majority in Pavan.  Although three conservative justices dissented in Pavan, they did so primarily to object that the Court was disposing of the case without full briefing and oral argument.

More recently, in October 2020, the Court rejected a cert petition from Kim Davis, the Kentucky clerk who had illegally refused to issue marriage licenses to same-sex couples. Davis was subsequently sued for monetary damages by two of the couples she had denied, and she lost in the lower courts. Apparently, no justice, not even the most conservative ones, thought the Supreme Court should hear Davis’s appeal (which was based on the doctrine of qualified immunity) of the Sixth Circuit’s decision against her.

Though they did not dissent from denying the cert petition, the Court’s two most hard-right justices, Clarence Thomas and Samuel Alito, issued a surly “statement” on what they saw as Obergefell’s harmful effects on the religious liberties of marriage equality opponents. Thomas and Alito did not argue that the core holding Obergefell should be revisited; their main argument was that marriage equality requires greater accommodations for religious opponents. Conservative Justices Roberts, Brett Kavanaugh, and Neil Gorsuch did not join the statement, suggesting a clear desire among a majority of the justices to put the issue of same-sex marriage behind them once and for all.

In light of all these developments, there is no chance the Court will retreat from the principle that same-sex couples have a constitutional right to marry.  Most of the justices care about things like stability in the law (especially in an area like marriage, where children and property are involved), the reliance interests of those who have already married, and how the Court as in institution is perceived. Moreover, the calculus is different from the issue of abortion, where religious conservatives and the Republican party have never relented in their efforts to relitigate Roe v. Wade. Obergefell brought the Court into line with long-term cultural changes and public attitudes regarding marriage, and the Court has no appetite for going back.

Religion and LGBTQ Rights

In the celebrated case of Colorado baker Jack Phillips and his Masterpiece Cakeshop, religious conservatives pushed for a bold new interpretation of the First Amendment that would have greatly expanded their power to exempt themselves from laws protecting LGBTQ people against discrimination. Instead, the Court in 2018 issued a narrow ruling that gave Phillips a nominal victory but wrote no new First Amendment doctrine that could be used to attack anti-discrimination laws.

Earlier this month, the Court decided Fulton v. City of Philadelphia, in which a Catholic foster care agency which declined to work with married same-sex couples sued over a city policy barring such discrimination.  Fulton had been closely watched for how it might create new law at the intersection of religion and LGBTQ equality.

Again, the Court declined invitations from conservative activists for a sweeping decision that would grant greater privileges to religion. A unanimous Court – led by Roberts and including the newest conservative justice, Barrett – issued a dry and narrow decision that applied existing Free Exercise Clause precedents. While the decision went in favor of the Catholic agency, it turned on technicalities of language in the city’s policy, not normative judgments about the relative importance of religion vs. LGBTQ equality. Commentators who have warned in click-bait headlines that the decision will “devastate LBGTQ foster families” either do not understand it or are misrepresenting it. Significantly, the Court agreed that the city’s interest in equal treatment “is a weighty one,” because (and here it quoted from Masterpiece Cakeshop) “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”

It’s worth noting that the battle in this case was more about symbolism than actual mistreatment of same-sex couples. No same-sex couple was prevented from serving as foster parents, because when Catholic Social Services encountered a couple it couldn’t serve, it referred the couple to another agency. This episode might teach LGBTQ advocates that, if we as a nation are to attain some measure of peaceful coexistence between LGBTQ rights and religious liberty, then, as I have argued, “occasionally the better path to justice and civil peace is to forebear from using all of the weapons that law makes available.”

Trans Equality

 Transgender equality is the cutting edge of the LGBTQ movement.  With Bostock, the Court dramatically expanded federal employment protections for trans people.  At the same time, even as red states are enacting animus-laden new laws attacking trans people, the Supreme Court seems disinclined to get involved in this culture war. This term it turned away cert petitions in two cases where lower courts had protected the ability of transgender students to use bathrooms and other sex-segregated school facilities based on their gender identity.

In December, the Court declined to hear a case in which an Oregon group of “parents for privacy” claimed that their and their children’s rights were violated when schools accommodated trans students. The plaintiffs lost in the lower courts, and the Supreme Court let those rulings stand.

Saying a school may accommodate transgender students without violating anyone else’s rights is not the same thing as saying the school must do so under federal law. But after protracted litigation involving transgender man Gavin Grimm, the Fourth Circuit U.S. Court of Appeals ruled last August that under Title IX, the federal law prohibiting sex discrimination in education, high schools must allow transgender students to use bathrooms that correspond to their gender identity.

Grimm has now graduated, but the Gloucester County School Board in Virginia refused to give up the fight and sought a writ of certiorari against the Fourth Circuit’s decision.  We learned Monday that the Court has taken a pass on this case as well. (The Court’s two unabashed right-wing activists, Thomas and Alito, said they would have granted the petition.) This is a major, high visibility victory for the ACLU, which represented Grimm.

* * *

With the Court’s current term drawing to a close, Harvard Law School’s Jeannie Suk Gersen observed this past weekend that “the Justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.” That observation seems especially accurate when it comes to legal questions affecting LGBTQ people. While we are no longer seeing the splashy, landmark decisions of the Justice Kennedy era, LGBTQ people have reason for optimism that constitutional and federal law will continue to respect and safeguard their equality and dignity.

Steve Sanders teaches and writes about Constitutional Law and LGBTQ legal issues at the Indiana University Maurer School of Law in Bloomington.  He has participated in groundbreaking litigation concerning marriage equality and transgender rights.   

 

 

Pride: An Opportunity to Pause and Reflect

When I was asked to write a comment about what Pride month means to me and Dwayne, my partner in life and love for 16 years, I was admittedly stumped at first. We often breeze through June without really considering its importance. But Pride offers a good opportunity to pause and reflect on our relationship and careers in the broader context of the LGBT movement.

Dwayne likes to joke that he learned all of my flaws on our first date. Red flag number one? I had just moved back to Arkansas and ended a relationship, so I was more or less living out of my car and couch-surfing. Not a great look for someone trying to impress. Second warning sign? I asked the restaurant to split the tab for dinner. Nobody wants to date a cheapskate. But the flashing red light? When our conversation kept going until midnight, I told Dwayne that I had to make a choice: I had the LSAT the next morning, so I needed to either end the date and take the test, or keep chatting and skip the LSAT. I skipped the LSAT, and sixteen years later, our conversation is still going strong — I also like to point out that those same stories also show that I am resilient, frugal, and spontaneous? But I digress.

Dwayne and I ended up going to law school together at the University of Pennsylvania (although he deferred his first two years to do Teach for America). Neither of us had lawyers in our family — indeed, neither of my parents graduated high school, much less college — so neither of us had the slightest idea about what we were doing. We managed to make decent grades. But more importantly, we made lasting friendships and learned incredibly valuable lessons, in part through our involvement with two groups: Lambda Law, the LGBT-affinity group, and ACS.

In Lambda, we found a group of smart, involved, confident LGBT folks who wanted to make a positive change in the world with their careers. Lambda gave us a sense of belonging, something new for two gay boys from the wrong side of the tracks in Arkansas. Lambda also taught us the value of activism. We protested the military’s discriminatory Don’t Ask, Don’t Tell by doing “sit-in” interviews with the military recruiters. We marched in support of gay rights.  We celebrated during Pride month. Lambda also organized academic panels on gay marriage, an idea that was but a twinkle in Justice Kennedy’s eye at the time. Being surrounded by folks with a shared sense of identity and similar experiences helped us get more comfortable in our own skin.

ACS gave us a different sort of education. Prior to law school, we were not familiar with ACS. We only knew that we had progressive values and wanted to practice those values in our careers. Enter ACS, a group we learned about from a friend. As first-generation law students, ACS helped foster a connection to a wider community of like-minded law students and lawyers. The group was filled with people from varying backgrounds who were all working together to advance progressive goals. ACS taught us the importance of coalition-building. (Side note: ACS also gave me and Dwayne our first (and last) opportunity to do some legal advocacy together when we participated in the Constance Baker Motley Moot Court). With its wide-ranging network of advocates in legal jobs that run the gamut, our participation with ACS helped us envision ourselves as public servants. And ACS’s far-reaching community gave us contacts and a road map for how to get there. So, after two years at law firms, we both joined the government — me as a prosecutor, Dwayne at the Department of Justice’s Civil Rights Division. Since then, Dwayne has joined the ACLU.

Many people comment that Dwayne and I are an odd pairing — a federal prosecutor and an ACLU attorney walk into a bar is a good start to a joke. Those folks do not know me or Dwayne very well. Although we sometimes disagree about how to approach a particular problem, we share the same values across the board. Indeed, I’m not sure how a 16-year relationship could survive if we did not.

The same is true about how we view our roles as attorneys. To be sure, Pride is a chance to get together with friends for some light-hearted fun. But Pride also feels like more, a chance to reflect on the beauty of our community’s diversity, our resiliency, and our hope. Pride invites us to honor the progress that we have made as a community, as well as recommit to the hard work that still lies ahead. The law has been critical to advancing LGBT rights, and Dwayne and I are proud to be a part of the legal community that will no doubt continue to play an important role going forward.

So happy Pride, ACS! Shower the world with glitter, rainbows, and unicorns this month — but then get back to work because the job is not done yet!

Thoughtful Action Extends Beyond Pride Month

As Michigan’s first openly gay Attorney General – and the first to hold a statewide office in the history of our state – it is an honor for me to represent 10 million residents as our state’s top law enforcement officer. I also take great pride in recognizing what my position means for the millions of residents who identify as LGBTQ+. Elected leaders should be a diverse reflection of the constituents we serve and I remain steadfast in my commitment to representing the LGBTQ+ community to the best of my ability.

That is why I am proud to announce the new Transgender Policy for the Michigan Department of Attorney General that took effect at the beginning of June. This policy, which can be viewed on the Michigan Department of Attorney General website, is an important and proactive step to reinforce our commitment to equal treatment and protection under the law ­­– not just for members of my staff, but for anyone who interacts with this office.

One of the policy’s purposes is to address the needs of transgender, intersex, and gender non-conforming employees of the Department by clarifying how the law should be implemented in situations where questions may arise about how to protect the legal rights and safety of all employees.

For instance, the Department will change an employee's official record to reflect a change in gender upon presentation of a court order or current government issued identification card issued in the employee's new name and/or gender.

Additionally, the policy makes clear it is a violation of the guidelines for an employee performing their work duties to discriminate against or harass any transgender, intersex, or gender non-conforming individual.

Another purpose, equally significant, is to strengthen the expectation that employees of the Department will not just treat colleagues with dignity and support, but will treat all transgender, intersex, and gender non-conforming individuals who interact with the Department with the same respect.

This policy means being sensitive to the proper pronouns of someone involved in a court proceeding. It also reinforces the importance of supporting a colleague who has confided their decision to transition.

The Department’s Transgender Policy also acknowledges those who may transition on the job. Employees receiving treatment as part of their transition may use sick leave under applicable employer regulations.

It is my hope other agencies and offices across our great state, and this country, will use this policy as a blueprint to enact their own inclusive policies in the workplace and beyond.

While this inclusive mindset has been at the forefront of my approach to this office, a policy is a tangible commitment to ensuring all communities and people our department represents are treated equally, while also supporting and uplifting the staff who proudly serve this state. I know policies such as this can have a real impact on increasing trust and cooperation between communities and law enforcement agencies. It’s this type of thoughtful action that is critical in creating an environment where all individuals feel respected, welcomed and appreciated.

As Pride Month comes to a close and the celebratory events end, it's important to remember that fighting for inclusive treatment is year-round work, which includes seeking justice for those who are targeted because of who they are.

Shortly after I took office, I launched the Department’s Hate Crimes Unit. Hate itself is not a crime and our civil liberties protect the right to speak about even the most terrible of things, but when a criminal offense is committed against a person or property and it is motivated by an offender’s bias against a particular group, my office will act. This unit makes clear that senseless acts of hate and terror have no place in Michigan.

Throughout my term, I have worked to be an advocate for the residents of our state and prioritized resources in the Department of Attorney General to reflect that advocacy. This includes prioritizing investigations such as our Clergy Abuse, Flint Water and, most recently, Boy Scouts of America investigations.

We also launched the nation’s first, state-wide conviction integrity unit shortly after I took office. Last month, Gilbert Poole became our first exoneration after spending nearly 32 years in prison.

When I ran for this seat in 2018, I did so to be the People’s Attorney. That includes all Michigan residents, from all walks of life and backgrounds, who deserve an advocate willing to protect them and fight for them. I’m proud to serve the people of Michigan and I’m proud to represent the LGBTQ+ community in this role as Michigan Attorney General.

Dana Nessel is the 54th Attorney General of Michigan. Follow her on Twitter @dananessel. To learn more about the important work the Michigan Department of Attorney General is doing visit its website or follow the department on Twitter @MIAttyGen.