The Anthony Kennedy Retirement  – a Death Knell for LGBT Rights in the Court?

The Anthony Kennedy retirement was a shock to many, as was his pro-LGBT legacy.  Whether the Kennedy legacy will live on with a new Supreme Court remains to be seen.

Supreme Court Senior Associate Justice Anthony Kennedy was responsible for the first pro-LGBT Supreme Court decision in 1996, when Colorado, by voter ballot, amended its state Constitution to prohibit the state from protecting gay people from discrimination.  This decision, Romer v. Evans, started a conversation among the Justices that would continue on through the marriage cases and beyond the Anthony Kennedy retirement.Anthony Kennedy retirement

Anthony Kennedy laid that ground work for marriage equality by decriminalizing sodomy in the Lawrence v. Texas case, decided in 2003.  I had the privilege of working at Lambda Legal, the attorneys for Petitioner Lawrence, while preparing for that case.  Sodomy was a crime only for gay people in Texas and a conviction of the crime of sodomy was used as an excuse for employment discrimination, removal of children and much more.  This landmark ruling laid the foundation upon which much of our current LGBT jurisprudence rests.

Kennedy authored the Windsor case in 2013 and the Obergefell case in 2015, both of which solidified marriage equality and the federal recognition thereof.  But he also joined the majority siding against LGBT issues in several cases, most recently in the Masterpiece cake shop case.

In order to predict the future of a post-Kennedy Supreme Court’s treatment of LGBT rights, we need to dispense with a few misconceptions.  First, the Republican senate will not hold themselves to the same standard they held President Obama in his attempt to fill the Scalia vacancy.  If they did, they would wait until after the 2018 midterm elections to allow a new, possibly democratic, senate the right to vote on President Trump’s next pick.  Do not hold your breath, but do call Susan Collins and Lisa Murkowski!

Second, the Anthony Kennedy retirement will not move current right-leaning Justices to the left in order to preserve the very delicate balance between the conservative and progressive wings of the court.  Roberts, Thomas, Alito and Gorsuch have made their opinions clear on previous LGBT matters before them and another conservative voice on the court will tip the balance against progressive protection of LGBT rights for generations to come.

Finally, there are real and relevant conflict of interest issues which may directly affect criminal and civil prosecutions directed at the very president that would be nominating Supreme Court Justice who would be hearing them.  If there were ever a “litmus test” issue, it is not abortion or LGBT rights, it is the potential ability of a sitting president to be indicted or prosecuted.

Anthony Kennedy retirementWhat is most troubling about Anthony Kennedy’s legacy is what he did not do.  Kennedy was a wordsmith, much to the chagrin of many in the legal community.  He never clearly defined what level of legal scrutiny gay people deserved in equal protection cases.  The equal protection clause of the 14th Amendment to the US Constitution provides for different levels of protection depending on which category the discriminated class falls into.  The legal scrutiny that a class receives often determines whether the discrimination is permissible or not.  The key indicators of whether a case deserves heightened scrutiny were, perhaps purposefully, left out of Kennedy’s written decisions regarding LGBT litigants.  He shied away from describing gay people as a “subject classification.”  

Kennedy did not discuss whether a “compelling state interest” existed to justify the discrimination, another word indicator of common equal protection analysis.  My fear is that the absence of a clear direction for equal protection scrutiny will now be left in the hands of a decidedly more conservative court.  Make no mistake; they will not speak around the issue as Kennedy was accused of doing.

The Anthony Kennedy retirement will, and should, cause LGBT individuals, couples and families to reevaluate their own legal affairs.  The good news is that the most important issues, such as estate planning, second and step adoption protections and anti-discrimination policies are state based.  This cuts both ways if you live in a state which does not provide adequate protections for LGBT Americans. 

While it is unlikely that the Supreme Court would overturn their 2016 decision in V.L. v. E.L., a case which required states to recognize the second parent adoptions of other states, of particular interest to gay couples moving to less LGBT friendly states, a newly conservative court may take the opportunity to allow a state to deny recognition of a pre or post-birth order for a gay male couple establishing parentage after surrogacy from another state.  While this fact pattern has not yet arisen, it is foolish to deny that anti-LGBT organizations will be looking for ways to chip away at the protections we have fought so dearly for.

If the Anthony Kennedy retirement can teach us anything, it is that being proactive in the creation and protection of our families is no longer optional, it is imperative.  Create your estate plan if you do not have one.  If you have been putting off your second parent adoption, don’t!  Give to Lambda Legal, the ACLU, NCLR and GLAD.  If the senate allows Trump to nominate and appoint a new Justice to the Supreme Court, we, as LGBT Americans, will be living with that choice for the next generation.  That is the sad and simple reality. 

By Anthony M. Brown, June 29, 2018

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With Supreme Court Justice Kennedy Gone, Abortion and LGBT Rights Are Next

The swing vote is leaving him. Trump’s right-wing replacement will be there for decades. Democrats have no power to stop it.

The judicial apocalypse is here, and there’s nothing Democrats can do to stop it.  Justice Anthony Kennedy, the swing voter in most of the Supreme Court’s close cases of the last decade, is retiring at age 81.

President Donald Trump will choose his successor.

With the Senate filibuster of Supreme Court nominees eliminated last year by Republican Senate Leader Mitch McConnell, anyone Trump nominates will be rubber-stamped.  That has been the pattern so far, with 39 judges confirmed so far, often in an expedited process, with not a single Republican vote opposing any of them.

Moreover, Trump’s judicial nominees thus far have been chosen by the far-right Federalist Society, which has put forward extreme ideologues in the mode of Justice Clarence Thomas, whose ideas were once considered on the fringe but are now increasingly within the mainstream. 

While Justice Neil Gorsuch replaced another conservative, the late Justice Antonin Scalia, whoever replaces Justice Kennedy will likely be a conservative firebrand replacing a moderate.  The shift will transform the Court for decades to come.

by Jay Michaelson, DailyBeast.com, June 27, 2018

Click here to read the entire article.

‘I wanted a baby:’ Single men are increasingly having biological children via surrogacy

Bill Guest was about 30 when his biological clock kicked in, and he was single.

His friends were having kids left and right, and suddenly being a doting uncle wasn’t enough. Guest was single, wasn’t particularly interested in getting married, but he did very much want a child, and not an older child. single

“I wanted a baby,” said Guest, 40, of Villa Park. “I wanted to experience all of the stages of life.”

With Father’s Day approaching, single fathers such as Guest are a reminder of how far modern men will go to become parents.

He is one of the small but growing number of single men who are becoming fathers via surrogacy, in which a woman agrees to carry someone else’s baby. Surrogacy can cost more than $100,000 and involves finding a woman who wants to carry your child, achieving a pregnancy via in vitro fertilization, and navigating the emotional experience of pregnancy and childbirth with a surrogate who has her own needs, responsibilities and boundaries.

At Family Source Consultants in Chicago, which has facilitated about eight single-father/surrogate matches so far this year, up from about five last year, co-founder Zara Griswold said that single men, both gay and heterosexual, are pursuing surrogacy for the same reason single women are freezing their eggs: They really want biological children.

“Men who have a paternal instinct — it is no less than women who have a maternal instinct,” said Griswold.

“They will be as obsessed as a woman will be; they just want it so much. And then when they have their babies they’re so happy; they’re so grateful; they’re such great parents.”

Alternative Reproductive Resources, another Chicago agency, matches about three single dads with surrogates each year, according to CEO Robin von Halle.

Guest, a stay-at-home dad to Freya, 19 months, said that he looked into adoption through the foster care system, but the kids who were available were 6 or 7.

“I kind of gave up,” he said, but his mom, Josephine, urged him to go online and try again, and he found Men Having Babies, a nonprofit that helps gay men become dads. About 60 percent of the single dads via surrogacy at Family Source Consultants are gay; the rest are heterosexual.

by Nara Schoenberg, June 13, 2018, Chicago Tribune

Click here to read the entire article.

Men Having Babies – The Journey Starts Here

For the last 6 years I have been the Chairman of the Board of Men Having Babies, a nonprofit organization that helps educate gay men about having their own biological children through surrogacy.

 I have never been prouder of the mission of an organization I have been a part of than I am with Men Having Babies.  We also help men who cannot otherwise afford surrogacy with our Gay Parenting Assistance Program, or GPAP, which provides discounted and donated services, as well as cash grants, to eligible couples and individuals.  We advocate for ethical surrogacy and assist thousands of men around the world.  This 8 minute video shows what kind of a difference we can make.  It is my privilege to share it with you.

Gay men thinking about having families is nothing new.  While I grew up in an era that being gay and being a father were not usually understood as being possible together, thankfully this is no longer the case.  Creating and protecting a family is a realistic dream of all people, especially gay men.

Men Having Babies is a non-profit organization dedicated to educating and assisting gay men to create their own families. Each year educational conferences are held around the world in such cities as San Francisco, Brussels, New York, Tel Aviv, and Chicago. Click here to visit the Men Having Babies website.

Click here to watch the video.

Blood Test Might Predict Pregnancy Due Date and Preterm Birth

The blood test is far from ready for use, but research is promising. If it works in bigger studies, it could help prevent deaths of babies born prematurely.

Scientists have developed an inexpensive blood test to predict a pregnant woman’s due date and possibly identify women who are at risk of giving birth prematurely.

The research, which is still preliminary and involved small numbers of women, was led by a prominent pioneer in the field of genetic blood testing, Stephen Quake at Stanford University, who said the test could eventually provide a low-cost method of gauging the gestational age of a developing fetus.pregnancy blood test

The test, which detects changes in RNA circulating in a pregnant woman’s blood, estimated due dates within two weeks in nearly half the cases, making it as accurate as the current, more expensive method, ultrasound, and more accurate than guesses based on a woman’s last menstrual period.

Using a similar analysis of RNA in blood from eight women who delivered prematurely, the researchers were able to correctly classify six of their pregnancies as preterm. If much larger studies achieve comparable results, the test could become a tool to help prevent unnecessary induction of labor or Cesarean deliveries, and could possibly help save babies would have died because they were born too early.

Premature birth is the leading cause of newborn death in the United States. And 15 million babies a year are born prematurely around the world.

“I think it’s really a very exciting study that suggests an approach that may have a lot of potential for predicting preterm delivery,” said Dr. Louis Muglia, director of the Center for Prevention of Preterm Birth at Cincinnati Children’s Hospital Medical Center at the University of Cincinnati. “It can certainly help you understand where the baby is in maturity,” he said, which could aid doctors in gauging when to deliver babies of women who go into unexpected early labor.

In the study, published Thursday in the journal Science, the team, which was co-led by Dr. Mads Melbye, who runs the Statens Serum Institute in Denmark, analyzed the blood of 31 Danish women taken every week throughout their pregnancies, which were all full-term. The researchers studied genes linked to the placenta, the maternal immune system and the fetal liver, and found nine of those genes produce RNA signals that change distinctly as pregnancy progresses.

“RNA is what’s happening in the cells at any given moment,” said Dr. Quake, who is also co-president of the Chan Zuckerberg Biohub, which funded the study, along with the Bill and Melinda Gates Foundation and others. “We had this idea that we could make a molecular clock to see how these things change over time and it should allow you to measure gestational age and see where things are in pregnancy.”

by Pam Belluck, New York Times, June 7, 2018

Click here to read the entire article.

Arizona Appeals Court Applies Masterpiece Cakeshop Ruling to Reject a License to Discriminate

In the first lower court ruling applying Masterpiece Cakeshop, the Arizona Court of Appeals rejected the argument that business owners have a license to discriminate against same-sex couples in Brush & NIB Studio v City of Phoenix.

This case was brought by the Alliance Defending Freedom.wedding cake

This shows that the Supreme Court’s decision in Masterpiece Cakeshop did not change the long-standing rule that businesses that are open to to the public must be open to all.

Discrimination has no place under our Constitution. Business can’t hang up signs saying “your kind not served here.”

Posted by Eric Lesh on Medium.com – June 7, 2017

Bermuda Court rules in favour of same-sex marriage

Gay couples won the right to marry yesterday for the second time in little more than a year in Bermuda, but the Government said it would appeal the Supreme Court decision to reverse the ban on same-sex marriage.

Chief Justice Ian Kawaley upheld a constitutional challenge against the Domestic Partnership Act, delivering a judgment that declared invalid the parts of the legislation which revoked marriage equality.marital trust

His ruling was greeted with a round of applause from a packed public gallery and joyful celebrations outside the courtroom.

Several hours later, Walton Brown, the Minister of Home Affairs, announced the judgment would be appealed “subject to any legal advice that we receive”.

Mr Justice Kawaley’s ruling does not take immediate effect because he agreed to an application by Solicitor-General Melvin Douglas, representing the Attorney-General, for a six-week stay to allow the Government to decide whether to appeal.

During that period, gay couples will only be able to apply to enter into domestic partnerships.

Mr Brown said: “We are pleased that the Chief Justice has stayed the decision until an appeal can be submitted.”

by Sam Strangeways Owain Johnston-Barnes – The royal Gazette – June 7, 2018

Click here to read the entire article.

New Report: Continued Attacks Against LGBT Families Harm Children

As the three-year anniversary of the landmark Supreme Court marriage decision in Obergefell v. Hodges nears, two more states have passed legislation allowing taxpayer-funded child welfare organizations to discriminate against prospective families.

new report shows that these state laws are just the tip of the iceberg, and outlines how stigma, discrimination, and systematic attempts to undermine marriage equality harm the estimated 300,000 children raised by same-sex couples and lesbian, gay, bisexual, and transgender (LGBT) parents.

Coauthored by the Movement Advancement Project (MAP) and the Family Equality Council, Putting Children at Risk: How Efforts to Undermine Marriage Equality Harm Children examines two overarching strategies to undermine marriage for same-sex couples and protections for LGBT parents, and shows how these coordinated efforts pose a profound threat to the children in LGBT families. First, some government officials, state legislators, and courts have refused to fully recognize the marriages of same-sex couples and their relationship with their children. Second, there is an increase in individuals, businesses, child welfare providers, healthcare providers, government contractors, and even government employees claiming they have a right to discriminate not just against LGBT people, but also against the children of LGBT people, because of their religious beliefs. These license to discriminate efforts are reflected in legislation, court cases, and agency guidance around the country.

Just this year, two states – Oklahoma and Kansas – have passed laws allowing child welfare agencies to discriminate against adopting families, leaving the nation’s most vulnerable children with fewer prospective families. And later this month, the Supreme Court is expected to rule in the Masterpiece Cakeshop case, which has the potential to undo decades of nondiscrimination laws by allowing businesses to pick and choose which customers to serve. For children raised by LGBT parents in particular, the stakes are high. A same-sex couple could be refused pregnancy and birth healthcare services, a child with two mothers could be denied entrance to their local preschool, a child could be refused critical medical treatment because she was denied an accurate birth certificate listing both parents, or a qualified, loving same-sex couple could be rejected from fostering a child in need. In fact, as outlined in the report, all of these scenarios have already happened.

“It’s a sad day when laws prioritize politics over the well-being of children,” said Ineke Mushovic, MAP executive director. “Instead, we’re seeing a focus on laws that allow doctors to refuse to treat infants if they disapprove of the parents, that allow childcare facilities to discriminate against and kick out toddlers, and that would rather see kids move from foster home to foster home than be permanently placed with a loving, qualified same-sex couple.”

by The Seattle Lesbian, June 4, 2018

Click here to read the entire article.

The Masterpiece Cake Shop Decision – A Narrowly Decided Cautionary Tale

The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.   

In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.

 

gay rightsDon’t get me wrong, I have great respect for most religious belief.  My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues.  We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.

 

However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.

 

I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.

 

masterpiece cake shop decisionJustice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires.  In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent,  “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.”  But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.  

 

Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.”  Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion.  Thus the message that religion is more important than discrimination may be misinterpreted.

 

I have been searching for a meaning behind this seemingly incorrect finding.  Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior.  This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:

“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.

The Court was mindful of how far adrift we could go if every individual could apply his or her religious beliefs to every commercial transaction.  The Court contrasted permission for a clergy person to refuse to marry a couple as an exercise of religious belief, on the one hand, with the unacceptable “community-wide stigma” that would befall gay people if there was a general constitutional right to refuse to provide goods and services.”

I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions.  We are, after all, a portable nation and our families are everywhere. 

 

While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.

 

At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted.  If you have put off doing your estate planning, do it now.  If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court.  If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.

 

While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.  

 

Anthony M. Brown, Time For Families – June 5, 2018

My Family’s Story

My husband Gary and I were able to share our family’s story with Robin and Jaimie of the hit podcast, If These Ovaries Could Talk.

 We spoke about being a known donor, having our son with a known egg donor and gestational carrier, as well as our commitment to inviting others to get to know us through honest question and answer.  Anthony Brown

This podcast is really important.  Not only are Jaimie and Robin helping others to have their families, they are demysifying the process and helping others to know that our families are just like theirs.

Go to www.ovariestalk.com for information and you can download their podcast on all podcast platforms.

Click here to listen to our episode, “They Met at the Disco.”