Threats to Gay Rights

A Supreme Court shaped by President Donald Trump, especially if and when Justice Anthony Kennedy retires, could not only block progress but actually erase existing LGBT rights. That prospect looks increasingly likely. The only formal principle that counsels against the Court overturning the cases that established rights to intimacy and marriage—stare decisis, meaning “to stand by things decided”—is far from an ironclad guarantee against encroachment or even reversal.

The principal exception lies in instances of a major new development—a clear-cut Supreme Court opinion. It is a matter of debate how directly a Supreme Court decision must undercut precedent before a lower court can deviate. The only thing a panel that finds precedent flawed can do is note the flaw’s existence and push the court to hear the issue as a full court, or en banc. En banc hearings are rare.

In all circumstances, courts are expected to avoid deviating from precedent. In law, there are few hills steeper than stare decisis. Squarely confronting the weight of precedent all but guarantees a loss. The rules are a little different for the Supreme Court.

If a Trumped-up Supreme Court shines from a full-frontal assault on gay rights, their reluctance would likely stem not from stare decision but from the jurisprudential gymnastics that would be required to walk Obergefell v. Hodges back without disrupting other precedent on marriage—and, more compellingly, without risking a blowback in public opinion. There are hundreds of thousands of married same-sex couples throughout the United States. Public opinion favors LGBT rights broadly and marriage overwhelmingly. Overruling landmark gay rights cases could generate a backlash that sees LGBT rights reinstated through legislation.

The Supreme Court can significantly undermine LGBT rights even without reversing a singly case. Right now, the federal prohibition against sex discrimination doesn’t bar discrimination on the basis of sexual orientation or gender identity; the Equal Protection Clause affords no specific protections for LGBT people, as it does for members of groups defined by race and nationality. The Court can strip the rights to intimacy and marriage of their meaning, carving away gradually and masking the magnitude of changes by phrasing them in arcane legal terms. Several pending cases could give the Court just such an opportunity. If Trump gets to replace any liberal justice, or Kennedy, there will be no further gay rights victories at the highest court. The next question: How many rights will LGBT people lose?

Gay Rights In America Under Kavanaugh

Justice Kennedy's greatest legacy on the Supreme Court, and certainly what he hopes will be among his greatest legacy are his decisions expanding the scope of LGBTQ rights. 

In 1996's Romer v. Evans, he authored the Court's first major pro-gay rights decision, invoking the 14th Amendment's Equal Protection Clause in striking down a Colorado state constitutional amendment that prevented cities and towns from adopting their own bans on discrimination against gays, lesbians, or bisexuals.

Seven years later, in 2003's Lawrence v. Texas, Kennedy wrote a 6-3 decision invalidating Texas's ban on oral and anal sex between two men or two women. That decision overrode 1986's Bowers v. Hardwick, a decision upholding Georgia

s solomy law. In Lawrence, Kennedy did not use equal protection reasoning but instead found that any bans on consensual sexual behavior between adults, regardless of the genders involved, violate the due process clause's guarantee of personal liberty. (This was similar to the reasoning the Court had used in Roe and to invalidate bans on contraception in Griswold v. Connecticut.)

A decade later, in 2013, Kennedy wrote the 5-4 decision in United States v. Windsor overturning the federal Defense of Marriage Act on equal protection grounds. The decision required the federal government to respect and honor same-sex marriages at the state level, while still allowing states to ban same-sex if they wished. And two years after that, in 2015's Obergefell v. Hodges, he swept away bans on smae-sex marriage altogether, ending with a stirring tribute to the value of marriage that's become a mainstay of wedding readings in the years since:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect not to be condemned to live in loneliness, excluded from one of civilizations's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. 

It is fair, then, for gay rights advocates to worry about what could happen to the Obergefell precedent now that Kennedy has retired and will most likely be replaced by Kavanaugh, who is opposed by every LGBT rights group you can imagine.

There are certainly some conservatives on the Court who are interested in chipping away at the ruling's guarantees. Gorsuch, Thomas, and Alito in 2017 dissented from a ruling requiring Arkansas to list same-sex parents on their children's birth certificates, arguing that to do so does not violate Obergefell. That set the stages for a legal strategy based on gradually chipping away at the right to marriage until it's practically worthless.

Majorities of Americans in 44 of the 50 states now support same-sex marriage. The overwhelming public opinion shift in favor of marriage equality might make the conservatives on the Court more hesitant to chip away at the right, and also might deny the Court opportunities to take up the issue, if the popularity of same-sex marriage prevents states from trying to restrict the right in ways that would be challenged and make it to the Court.

LGBTQ rights as a part of Kennedy's legacy are probably going to be challenged now. And, the Court without Kennedy, and with Kavanaugh, will be less friendly to LGBTQ causes than one with Kennedy still around.

Threats To LGBTQ Rights

Mike Pence is perhaps one of the most anti-LGBTQ evangelical Christian political crusaders to serve in Congress and as governor of a state. Long before he signed the draconian anti-LGBTQ "religious liberty" law in Indiana last year, he supported "conversion therapy" as a member of Congress, and later as a columnist and radio host, he gave a speech in which he said that marriage equality would lead to "societal collapse," and called homosexuality "a choice." Stopping gays from marrying wasn't biased, he said, but was rather about compelling "God's idea."

Scary individuals and religious bigots have prominent positions in the Trump administration. Ben Carson, compared homosexuality to pedophilia and incest is vice chairman of the transition team. Newt Gingrich, attacked what he called "gay fascism" around LGBTQ rights. Ken Blackwell, formerly the Ohio secretary of state has been appointed to lead domestic policy on the transition team. Blackwell has compared homosexuality to arson and kleptomania, which he called "compulsions."

President Trump met with religious extremists, and made promises to them. He promised he would put justices on the Supreme Court who would overturn marriage equality which he has consistently opposed himself since 2000. He promised that he would sign the First Amendment Defense Act, which would all for discrimination against LGBT people by government employees and others.

It may or may not be difficult or unrealistic to overturn marriage equality over time, though the anti-equality National Organization for Marriage, which backed Trump in the election, has sent Trump a plan. But by passing bills like FADA--already introduced in the Republican controlled Senate and House--and others yet to come, gay marriage can be made into a kind of second-class marriage. Clerks like Kim Davis can be given exemptions from giving marriage licenses to gay and lesbian couples. Federal employees would be able to decline interactions with gay and lesbian married couples. Businesses such as bakers and florists, who've become flash points in some states where they refused to serve gays, could be granted the ability to turn away gays under federal law and all that could lead to a much more conservative Supreme Court if challenged.

Mike Pence has already said that he and Trump plan to withdraw federal guidance to the states issued by the Obama administration protecting transgender students. If Trump is as hands-off on LGBTQ issues as president as he was at the Republican National Convention, letting people like Pence, possibly the most powerful vice president ever -- get his way, along with people like Carson, Blackwell, Gingrich and likely many others, you can bet the that assault on LGBTQ rights is already underway. It is only a matter of time before we know the full magnitude.

Gay Rights as Human Rights

In May, 2015, a full month ahead of what the White House declared LBGT Pride Month, President Obama and the First Lady honored the International Day Against Homophobia and Transphobia (IDAHOT) – MAY 17  - by saying LGBT rights are “human rights” and that “all people deserve to live free from fear, violence, and discrimination, regardless of who they are or whom they love.”

IDAHOT came just weeks ahead of pride season in June and the Supreme Court’s highly anticipated decision on national marriage equality, which was a welcome “YES!”

National Security Advisor Susan Rice said in a statement, “This day and every day, the United States stands in solidarity with members of the lesbian, gay, bisexual and transgender community and all those around the world who work to advance the unassailable principle that LGBT rights are human rights”.

In a 2011 presidential memorandum seeking to advance global LGBT rights, Obama stated he was “deeply concerned by the violence and discrimination targeting LGBT

persons around the world, whether it is passing laws the criminalize LGBT status, beating citizens simply for joining peaceful LGBT pride celebraiotns, or killing men, women, and children for their perceived sexual orientation.”

People who are afraid of LGBTs want us to have no rights because of religious doctrine or ignorance about what being LGBT means. Having basic human rights of respect, equality and lack of discrimination doesn’t seem to be a lot to ask for or need. And yet, establishing those human rights has been an uphill battle for many years.

Even though now, in June 2016, a year after the President and First Lady opening announced that we deserve to be treated with equality, even though we have been given the right to marry in all states, there is still a long way to go before we have the same rights as straight people.

Discrimination, hatred, and denying human rights to LGBT people is a travesty. The movement to contain and limit us is tremendous. We need to persevere with the momentum and awareness we have gained  to  keep the vision of the LGBT community having “human rights” alive.

Georgia's "Religious Liberty Law"

​On Wednesday, March 23, 2016, Georgia passed it’s watered down Religious Freedom bill. Many national and international corporations are putting pressure on Georgia Gov. Nathan Deal, a Republican to veto the bill.  Some business leaders are warning that the state may become better known for a controversial bill that would allow discrimination against gay people.

The bill, which has passed Georgia's House and Senate, would prohibit "any adverse action” against organizations or people with "a sincerely held religious believe regarding lawful marriage between ... a man and a woman.”  The rise of legislation that permits business owners to refuse service based on their religious beliefs stems from a national push for gay and transgender rights, including the Supreme Court’s ruling last year that legalized same-sex marriage.  

The bill would do little to actually further religions liberty rights in Georgia. If a new or existing law creating special legal privileges based on sexual orientation and gender identity conflicts with a sincere religions belief, the Georgia religious freedom bill may provide no protection--not even the standard balancing test that is the hallmark of religious freedom restoration acts. So in an area where we most need religious liberty protection, the new Georgia law goes out of its way to disclaim it.

Corporations are putting pressure on Georgia Gov. Nathan Deal to veto a watered-down religious freedom bill. Despite the weak protections, a business coalition called "Georgia Prospers" is mounting an aggressive campaign to defeat the bill.

Large corporations ranging from Microsoft to Atlanta-based Coca-Cola are urging the state to abandon the bill. The corporations Disney and Marvel have also said they will boycott the bill if passed. The NFL in particular has made headlines over its opposition. The league is warning the measure could hurt Georgia's chances to host an upcoming Super Bowl.

There's evidence to back up opponents' claims that such legislation can harm a state's business climate. Indiana's Religious Freedom Restoration Act resulted in a loss of as many as a dozen conventions and as much as $60 million in lost revenue.

Georgia isn't the only state where lawmakers are currently mulling laws that would allow businesses to refuse service to gay customers. Kentucky's Senate this week approved a similar bill that would allow business owners to refuse service to gay customers based on their religious beliefs. Last year, more than 100 anti-LGBT bills were filed in 29 states, according to the Human Rights Campaign.

It is unclear what will happen with the Georgia bill. Deal has until May 3rd to sign or veto the bill.

Supreme Court's Hearings on Same-sex Marriage

Just two years ago, the Supreme Court struck down part of the federal anti-gay marriage law that denied a range of government benefits to legally married same-sex couples. The decision in United States v. Windsor did not address the validity of state marriage bans, but courts across the country, with few exceptions, said its logic compelled them to invalidate state laws that prohibited gay and lesbian couples from marrying. The number of states allowing same-sex marriage has grown rapidly. As recently as October, just over one-third of the states permitted same-sex marriage. Now, same-sex couples can marry in 36 states and the District of Columbia. 

The Supreme Court justices today are hearing extended arguments, scheduled to run 2 1/2 hours, in highly anticipated cases about the right of same-sex couples to marry. The cases before the court come from Kentucky, Michigan, Ohio and Tennessee, all of which had their marriage bans upheld by the federal appeals court in Cincinnati in November. That appeals court is the only one that has ruled in favor of the states since the 2013 Windsor decision.

Two related issues would expand the marriage rights of same-sex couples. The bigger one: Do same-sex couples have a constitutional right to marry or can states continue to define marriage as the union of a man and a woman? The second: Even if states won't allow some couples to marry, must they recognize valid same-sex marriages from elsewhere?

The arguments of marriage-rights supporters boil down to a claim that states lack any valid reason to deny the right to marry, which the court has earlier described as fundamental to the pursuit of happiness. They say state laws that allow only some people to marry violate the Constitution's guarantee of equal protection under the law and make second-class citizens of same-sex couples and their families. Same-sex couples say that preventing them from marrying is akin to a past ban on interracial marriage, which the Supreme Court struck down in 1967. 

The states respond that they have always set the rules for marriage and that voters in many states have backed, sometimes overwhelmingly, changes to their constitutions to limit marriage to a man and a woman. They say a lively national debate is underway and there is no reason for courts to impose a solution that should be left to the political process. The states also argue that they have a good reason to keep defining marriage as they do. Because only heterosexual couples can produce children, it is in the states' interest to make marriage laws that encourage those couples to enter a union that supports raising children.

The Obama administration is backing the right of same-sex couples to marry, although its argument differs in one respect. The plaintiffs say that the state laws should fall, no matter what standard the court applies. The administration calls for more rigorous scrutiny than courts ordinarily apply to most laws, saying it is appropriate when governments discriminate against a group of people. 

That already is the case for claims that laws discriminate on a basis of race, sex and other factors. But the administration is silent about what the outcome should be if the court does not give gays the special protection it has afforded women and minorities. The Justice Department's decision to stop defending the federal anti-marriage law in 2011 was an important moment for gay rights and President Barack Obama declared his support for same-sex marriage in 2012.

A ruling that same-sex couples have a right to marry would invalidate the remaining anti-gay marriage laws in the country. If the court limits its ruling to requiring states to recognize same-sex unions, couples in states without same-sex marriage presumably could married elsewhere and then demand recognition at home.

The bans in 14 states would survive. Beyond that, confusion probably would reign. Some states that had their marriage laws struck down by federal courts might seek to reinstate prohibitions on gay and lesbian unions. Questions also could be raised about the validity of some same-sex weddings. Many of these problems would be of the Supreme Court's own making.

From October to January, the justices first rejected appeals from states seeking to preserve their marriage bans, then allowed court rulings to take effect even as other states appealed those decisions. The result is that the court essentially allowed the number of states with same-sex marriage to double.

Same-sex couples can marry in 36 states, the District of Columbia and parts of Missouri. More than 500 marriage licenses were issued to same-sex couples in Alabama this year after a federal court struck down the state's ban. But probate judges have not issued any more licenses to gay and lesbian couples since the Alabama Supreme Court ordered a halt to same-sex unions in early March. Gay and lesbian couples may not marry in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, most of Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas.

Gary Gates an expert at UCLA's Williams Institute on the demography of gays and lesbians in the U.S., estimated that there were 350,000 married same-sex couples as of February. Gates relied on Gallup Inc. survey date and Census Bureau information to arrive at his estimate. That's just 0.3 percent of the nations 242 million adults. Almost as many same-sex couples are unmarried, Gates said.

What are the next issues facing gay rights? One fight in the news this year is over efforts to carve out religious exemptions for people and institutions that object to same-sex marriage. It is clear that churches do not have to marry same-sex couples if doing so violates their religious tenets. What about county clerks? Can photographers refuse to shoot same-sex weddings? Can bakers decline to bake a cake for two men? 

Civil rights groups say they will continue pressing for other protections from discrimination against LGBT people in employment and housing, among other areas. Even if same-sex couples win the right to marry everywhere, people still can be fired because of their sexual orientation in more than half the states. We still have a long way to go to have the same human rights heterosexual couples take for granted.

The Supreme Court’s Hobby Lobby Decision

Fifty years ago, the Supreme Court upheld the right of individuals to access birth control despite the opposition of some religions. Since then, mainstream attitudes have changed. But fundamentalist religious views about reproductive health and sexuality still influence our politics and law.

Hobby Lobby’s recent decision is a prime example. By a 5-4 vote, the Court held that religiously minded business owners essentially may “line-item veto” birth control coverage out of their employees’ health plans. The ruling is the fruit of an intensive strategy by today’s religious conservative movement.

The decision could mean that religious interests now trump other interests in many circumstances, with religious believers entitled to impose their views at others’ expense in ways systematically rejected in the past. This is the result Justice Ginsburg calls out in her clarion dissent. She accurately observes that the majority’s approach invites case-by-case testing of religious objections to federal laws and may give unprecedented approval to objections by finding fault with those laws, just as was done here.

In looking at health insurance, what questions may arise post-Hobby Lobby for LGBT people and people living with HIV? Given the majority’s rejection of discriminations, it seems unlikely that the Court would condone religious refusals of family coverage for workers in a same-sex relationship when coworkers receive coverage for a different-sex partner. And when a health plan includes coverage for a particular medical treatment, the Court probably will nix religiously based refusals of that treatment to LGBT people. 

So, for example, if there is coverage for hormone replacement therapy for menopausal women and men after testicular cancer surgery, it should likewise be available for transgender people. Likewise, if donor insemination or in vitro fertilization is covered for different sex couples, it similarly should be covered for same-sex couples. Finally, prescription drug coverage to manage a persistent viral infection or boost the immune system should not be excludable based on employers’ religious judgments about how a person may have contracted HIV.

In each of these examples, treating LGBT differently would be discriminatory. The work ahead includes insisting that nondiscrimination standards must themselves be nondiscriminatory. That is, “equal” must mean the same thing for everyone.

Respect for All Married Couples -- Repealing Section 3 of DOMA

The Supreme Court’s recent decision to repeal part of DOMA has brought about a great relief to LGBTs. It is important to understand more about the different parts of DOMA and how each affects us.

In 1996, to help defend one-man, one-woman marriage from efforts to redefine it, the United States Congress overwhelmingly passed- and President Bill Clinton signed – the “Defense of Marriage Act.” It defined marriage in federal law and enabled states to decline to recognize same-sex marriages from other states.

DOMA defined marriage in federal law as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The Defense of Marriage also affirms the power of each state to make its own decision as to whether it will accept or reject same-sex marriages created in other jurisdictions.

Any attempt to repeal either of the two DOMA sections will have significant implications. Repeal of the first section would eliminate the uniform definition of marriage across federal statutes and programs. Repeal of the second component would make it much more difficult for a State to refuse to recognize same-sex marriages from other States.

The Supreme Court’s resent historic ruling striking down Section 3 of the discriminatory Defense of Marriage Act (DOMA) is an enormous victory for loving, married couples and their families, and affirms that they deserve equal treatment under the law. This victory demonstrates the importance of access to marriage, and gives married same-sex couples access to the tangible benefits of the federal safety net, allowing them to better protect one another and their children.

Ending DOMA lifts up all LGBT people, even if it does not end our work. DOMA was an official federal policy disapproving of gay people and same-sex relationships, often imitated by states and imposed a second-class status on our lawful marriages by negating them for all federal purposes. The Court has now affirmed that equal protection guarantees apply to the relationships of LGBY people and has replaced federal disrespect with federal respect for our lawful marriages. This victory will energize our work moving forward so that we can achieve a reality in which every single same-sex couple enjoys full and equal protections under the law, regardless of where they live.

For legally married couples living outside of a marriage state of the District of Columbia, there are still many questions about when they will be equally able to share in federal protections, responsibilities, and programs. This is because the federal government typically defers to the states in determining whether a couple’s marriage is valid. There is no one rule across all federal agencies. Some agencies look to the law of the state where a couple married regardless of the law of the state where the couple now lives, while others look to the law of the state where the couple is living now.

I think the federal government can and should take action, where necessary, to ensure that married couples in all states have access to the largest number of federal programs. The federal government is already looking at how federal agencies can ensure fair and equal treatment of all married couples where possible. However, at this time, there are a number of important federal benefits that depend on whether your marriage is recognized where you live, so couples who live in states with bans on marriage by same-sex couples should proceed with caution before making the decision to marry.

One question that comes up frequently now has to do with wondering if all of DOMA is now completely repealed? The answer is no.

The Windsor case challenged the constitutionality of Section 3 of DOMA, the part that discriminatorily excluded married same-sex couples from federal protections, responsibilities, and programs. Section 2 of DOMA, which says that states may discriminate against gay couples legally married in other states, still stands. Legislative action will be needed to remove it, although getting rid of Section 2 will not eliminate discriminatory state marriage laws.

The Respect for Marriage Act, a bill pending in Congress that enjoys bipartisan support and the backing of President Obama, would fully repeal all of DOMA. It would also ensure that all married couples – including same-sex couples – enjoy equal rights under federal law. It would not tell states what to do, but would ensure that the federal government treats all marriages with respect.