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

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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

8 Times The Supreme Court Ruled On LGBT Rights

The Supreme Court will hear oral arguments in the Masterpiece Cakeshop case on December 5, 2017

On December 5, the Supreme Court will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which puts the state’s public accommodations law against “sincerely held religious beliefs” opposing marriage equality.gay cake

After Colorado bakery owner Jack Phillips refused to sell a wedding cake to David Mullins and Charlie Craig because it was against his religious beliefs, the couple filed complaints with the Colorado Civil Rights Division, which determined that Phillips was at fault. In 2015, a Court of Appeals unanimously affirmed that decision, but Phillips maintains the state’s anti-discrimination law violates his First Amendment rights to freedom of speech and free exercise of religion.

The case could have serious implications for both anti-discrimination statutes and so-called religious freedom laws that enshrine anti-LGBT discrimination. But it’s far from the first time our rights have come before the Supreme Court. Below, we look at the high court’s history with the LGBT community.

  1. One, Inc. v. Olesen (1958)Founded in 1952, ONE, Inc. was the first LGBT organization in the U.S. to have its own offices. Its magazine, One: The Homosexual Agenda, came a year later and is believed to be the first mass-produced gay publication in America, sold through the mail and on newsstands in L.A.

    In October 1954, the FBI and the Postmaster General of Los Angeles declared One obscene and refused to deliver it. The publishers sued and, though they lost the case and subsequent appeal, the took their case to the Supreme Court. Their victory marked the first time the high court sided with the LGBT community.

    The magazine ceased publication in December 1969.

By Dan Avery, NewNowNext.com, November 20, 2017

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Supreme Court Restores Visitation Rights to Lesbian Adoptive Mother

WASHINGTON — In a pair of unsigned opinions, the Supreme Court on Monday restored the rights of a lesbian adoptive mother who had split with her partner and reversed a murder conviction tainted by prosecutorial misconduct.

 

The adoption ruling reversed one by the Alabama Supreme Court, which had refused to recognize the woman’s adoptions of three children, which had been granted by a Georgia court in 2007.

The woman, identified in court papers as V.L., said she was overjoyed.

“I have been my children’s mother in every way for their whole lives,” she said in a statement. “I thought that adopting them meant that we would be able to be together always. When the Alabama court said my adoption was invalid and I wasn’t their mother, I didn’t think I could go on.”

The United States Supreme Court’s opinion, which was unsigned and had no noted dissents, said the Alabama court had violated the Constitution’s “full faith and credit” clause. “A state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits,” the opinion said.

Supreme Court

The two women in the case, V.L. v. E.L., No. 15-648, were in a committed relationship that started in 1995 and lasted about 17 years. They shared a last name.

One of them, identified in court papers as E.L., gave birth to a child in 2002 and to twins in 2004, both times by insemination from an anonymous donor. They raised the children together in Alabama until they broke up in 2011, and the adoptive mother, V.L., continued to see the children for a time afterward.

When a dispute about the visits arose, V.L. turned to an Alabama court, which granted her visitation rights based on the Georgia adoption judgment. The Alabama Supreme Court reversed that, saying in an unsigned opinion that the Georgia judgment was not entitled to the “full faith and credit” ordinarily required by the Constitution “to the public acts, records and judicial proceedings of every other state.”

The Alabama Supreme Court reasoned that the Georgia court had misunderstood Georgia law in allowing the adoption, saying that “Georgia law makes no provision for a nonspouse to adopt a child without first terminating the parental rights of the current parents.”

by Adam Liptak – New York Times, March 7, 2016

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