New Supreme Court Term Potentially Momentous for LGBT Rights

The Supreme Court begins its October 2018 Term, which runs through June 2019, on October 1.

During the week of September 24, the Supreme Court holds its “long conference,” during which the Justices consider the long list of petitions for review filed with the Court since last spring, and assembles its docket of cases for argument after those granted late last term are heard.  While there are several petitions involving LGBT-related issues pending before the Court, it is unlikely that there will be any announcement about these cases until late October or November at the earliest.Anthony Kennedy retirement

Three of the pending petitions raise one of the most hotly contested LGBT issues being litigated in the lower federal courts: Whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, can be interpreted to extend to claims of discrimination because of sexual orientation or gender identity. One of the three cases also raises the question whether an employer with religious objections gender transition has a defense under the Religious Freedom Restoration Act.  Another petition presents the question whether a judge who has religious objections to conducting same-sex marriages has a 1st Amendment right to refuse to do so.

Although many state civil rights laws ban such discrimination, a majority of states do not, so the question whether the federal law applies is particularly significant in the Southeast and Midwest, where state courts are generally unavailable to redress such discrimination.

With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement, which was effective on July 31, petitions pending at the Supreme Court took on heightened significance while the Senate confirmation process was taking place. The Senate Republican leadership had hoped to speed the process so that Trump’s appointee would be seated on the Court by the time the term began on October 1, but accusations of long-ago sexual misconduct by Kavanaugh have caused the Judiciary Committee’s vote to be delayed.  Meanwhile, the eight-member Court had to confront the question during their long conference of whether to grant review on cases as to which the justices were likely to be evenly divided, when they were unsure when the ninth seat would be filled and who would fill it.  As of the end of September, they had already scheduled oral arguments on cases granted last spring running through the first week of November.

ArtLeonardObservations.com. September 24, 2018, by Art Leonard

Click here to read the entire article.

 

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

Contact Time For Families

Contact Form
* indicates required field

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

Civil Rights Act Protects Gay Workers, Appeals Court Rules

A federal appeals court in Manhattan ruled on Monday that federal civil rights law bars employers from discriminating based on sexual orientation.

The case, which stemmed from the 2010 dismissal of a Long Island sky-diving instructor, was a setback for the Trump Justice Department, whose lawyers found themselves in the unusual position of arguing against government lawyers from the Equal Employment Opportunity Commission.Discrimination

The E.E.O.C. had argued that Title VII of the 1964 Civil Rights Act, which bars workplace discrimination based on “race, color, religion, sex or national origin,” protected gay employees from discrimination on the basis of sexual orientation.

But the Trump Justice Department took the position that the law did not reach sexual orientation, and said the E.E.O.C. was “not speaking for the United States.”

The Justice Department and Altitude Express, the instructor’s employer, could seek review of the decision by the United States Supreme Court, although neither party had any immediate comment on the ruling.

In its decision, the United States Court of Appeals for the Second Circuit said, “We see no principled basis for recognizing a violation of Title VII for associational discrimination based on race but not on sex.”

Click here to read the entire article.

The predictable reason why anti-LGBT bills become law

The cavalcade of crazy ginned up by folks fearful of equal rights for lesbian, gay, bisexual and transgender (LGBT) Americans was predictable. That far-right conservatives have been wigged out ever since the Supreme Court legalized same-sex marriage last June is not surprising.  Anti-LGBT bills are popping up all over the country.

Nor is the move by states to pass so-called religious freedom laws. Nor is the push to deny transgender people the dignity of using the bathroom that matches their gender identity. LGBT-rights activist and radio host Michelangelo Signorile predicted as much a year ago in his book “It’s Not Over: Getting beyond Tolerance, Defeating Homophobia, and Winning True Equality.”

 

Also, “Nearly all of the states facing anti-LGBT bills / anti-transgender bills have only 1 or no openly LGBT people serving in their state legislatures,” the report notes.

“One of the reasons the LGBT movement has seen such rapid progress is because our allies have really stepped up. But allies aren’t enough. When LGBT people are serving in public office, and especially in state legislatures, they directly change the conversation,” Aisha Moodie-Mills, president and CEO of Victory Fund and Institute. told me. “Their visibility and their relationships with their colleagues mean the discussion quickly becomes about a real person with a real family. It’s not just political grandstanding on one side and allies pleading their case on the other. Representation matters. Our voices make a huge difference when we’re in those rooms.”rainbowsilhouetteparents

Knowing this then, the opposite actions recently by Gov. Pat McCrory (R-N.C.) and Gov. Nathan Deal (R-Ga.) have a bit more context.

With lightning speed, the North Carolina legislature passed and McCrory signed into law legislation that not only strips the state of antidiscrimination protections for LGBT folks but also requires transmen and transwomen to use bathrooms based on the sex on their birth certificate and not on their gender identity. The Tar Heel State has no openly LGBT members of its legislature.

Meanwhile, down in the Peach State, Deal vetoed a so-called religious freedom bill. “I do not think we have to discriminate against anyone to protect the faith-based community in Georgia,” he said announcing his decision on March 28. Georgia has three openly LGBT legislators.

by Jonathan Capehart, Washington Post, April 29, 2016

Click here to read the entire article.

Gay rights – Why religious freedom bills could be just the beginning of the gay marriage debate

Gay rights vs. religious protections feels like the social battle of the moment right now, and it might not go away anytime soon.

In the wake of the June Supreme Court ruling legalizing same-sex marriage, dozens of states have considered or are considering legislation to give Christians and other people protections from doing something that violates their religious belief. It’s got LGBT advocates playing whack-a-mole across the nation as they argue that these laws amount to sanctioned discrimination of gay rights.

Three battles in the South over gay rights in particular have made headlines. Mississippi recently passed a sweeping bill allowing  businesses, religious institutions and state government employees to refuse service to LGBT people. Georgia’s Gov. Nathan Deal (R) vetoed a bill aimed at protecting religious institutions from having to perform same-sex marriages. And then there’s North Carolina and its bill limiting public bathrooms and locker room access for transgender people, which is a whole other issue for another day.

We spoke to Rochelle Finzel,  director of the children and families program with the nonpartisan National Conference of State Legislatures to get a better feel for why this seems to be taking up so much oxygen now — and what could come next. It’s important to note that Finzel and her staff don’t take any positions on policy; rather they track the legislative trends related to family law. Our conversation has been edited for length and clarity.marriage equality

THE FIX: There’s a perception that laws protecting religious institutions and officials from having to perform same-sex marriages is a new phenomenon this year. But really, the 13 states that legalized same-sex marriage through state legislation included religious freedom protections too, right?

Finzel: That’s right. In some states that was the compromise; the only way they were going to get their legislation passed to legalize same-sex marriage was to make sure those religious officials were protected.

What’s happening now, after the Supreme Court ruling where now all states have to recognize same-sex marriage, I think it raised those same concerns of: How do we make sure the law is protecting those whose religious beliefs do not necessarily support same-sex marriage? So these conversations have been a little bit broader than just the solemnization question.

THE FIX: So you’re saying these new bills are controversial in part because they’re expanding beyond protecting religious institutions to how to protect the average person on the street who doesn’t agree with same-sex marriage for religious reasons? Is that a new debate?

Finzel: From my vantage point, that’s new.

The bills that have generated the most controversy and the legislation that ultimately most states, besides Mississippi, have  vetoed, that’s been where that controversy has arisen. And certainly where you see the business community weigh in.

It raises the question of: Are we then allowing discrimination if a person is able to deny services or benefits to someone based on their religious beliefs? We’re protecting one set of beliefs, but then is it discrimination on the other end? And that’s been the real question. But we are very early on in this conversation on gay rights.

THE FIX: How do you see this conversation evolving?

Finzel: This is new territory for states. They’re trying to think about the implications of same-sex marriage across a whole host of issues, from the religious protections as well as some of the family law. I think certainly the emphasis and focus right now is just on same-sex marriage and recognizing same-sex marriage.

The next piece will be, now that we have same-sex marriage and also have same-sex parents, what are the implications in terms of custody, parentage, paternity and all those related issues — child support, child custody, adoption.

THE FIX: When the Supreme Court legalized same-sex marriage in June, was your reaction like, ‘Oh man, get ready for this huge legislative battle in the states,’ or have all these developments surprised you?

Finzel: It may have happened more quickly than we had anticipated. But it certainly has been on our radar. We were thinking, ‘What will this do for family law?’ And I’m not so sure that anyone really has all of the answers to that question yet.

THE FIX: Why are bathroom bills happening in conjunction with all this?

Finzel: That’s a good question. Maybe it’s a question to pose to some of the advocates on these issues. Has that been part of their platform as well?

THE FIX: Is it fair to say the religious protection vs. gay rights discussion has been centered in the South, which tends to have a higher concentration of social and religious conservatives who don’t necessarily agree with same-sex marriage?

Finzel: I think it’s a discussion around the country. All states are — and especially where the Supreme Court ruling was the first time they had to recognize same-sex marriage — sort of deer in the headlights, like, ‘Okay, what do we do?’ And I would say that’s across the board.

There are some that are looking at family law, some looking at how we change the language of our statutes so they reflect a more gender-neutral portrayal of family structures. We see more activity in the Republican states, but it’s not that it hasn’t been introduced or discussed in Democratic states. Family issues are not partisan.

by Amber Phillips, Washington Post – April 13, 2106

Click here to read the entire article.

Mississippi Same-Sex Adoption Ban Unconstitutional

Mississippi Same-Sex Adoption Ban Unconstitutional: The Supreme Court “foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage,’” a federal judge ruled Thursday.

WASHINGTON — A federal judge in Mississippi on Thursday afternoon halted enforcement of the state’s ban on same-sex couples adopting children.

Citing the U.S. Supreme Court’s 2015 decision ending bans on same-sex couples’ marriages, U.S. District Court Judge Daniel P. Jordan III granted a preliminary injunction against the state’s Department of Human Services in a case filed this past August.gay rights, lgbt adoption rights, adoption rights, gay adoption rights, gay adoption new york

Of the Supreme Court’s decision, Jordan wrote, “[T]he majority opinion foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage.’”

Jordan concluded on Thursday: “The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that [the adoption ban] violates the Equal Protection Clause of the United States Constitution.”

The case was brought by same-sex couples seeking to adopt through the foster care system or private adoptions, as well as by the Campaign for Southern Equality and the Family Equality Council. They snagged Roberta Kaplan as their lead attorney in the challenge — the lawyer who represented Edie Windsor in her successful challenge to the Defense of Marriage Act and then Mississippi same-sex couples who successfully challenged the state’s same-sex marriage ban.

While Jordan did grant their requested preliminary injunction, he also granted the requests made by many of the defendants to be removed from the lawsuit. Jordan granted requests to dismiss the complaint against Mississippi Gov. Phil Bryant, Attorney General Jim Hood, and several judges — finding that they were not the appropriate parties to be sued by the couples and groups.

Buzzfeed.com, by Chris Gender – March 31, 2016