Stevens’ Legacy, Kagan’s Nomination, and the March Toward LGBT Equality
June 23, 2010
Elena Kagan’s nomination comes at an auspicious yet challenging time for the LGBT community. While we have made demonstrable progress in its march toward equality, we have also encountered setbacks along the way. Courts have played an integral role in our community’s efforts for equality, and will continue to do so. With an equality-minded justice like Justice Stevens retiring from the bench, it is important to our community that his replacement understand the challenges faced by the LGBT community in the courts, as well as in society. Marriage Equality. The LGBT community has celebrated victories, mourned defeats and activated the courts in pursuit of marriage equality. Five states, plus the District of Columbia, currently provide for marriage equality for same-sex couples. A majority of these states began to provide for marriage equality after decisions by their highest courts. In 2008, California also began issuing marriage licenses to same-sex couples after a decision by the California Supreme Court, In re Marriage Cases, which determined that same-sex couples have a state constitutional right to marry. However, that right was stripped away only months later when California voters passed Proposition 8, a state constitutional amendment that defined marriage to exclude same-sex couples. Votes like the one on Proposition 8 place the lives of LGBT Americans at the will of a popular vote – the recent example was in 2009, when Maine voters overturned an act of the Maine Legislature to provide for marriage equality. The constitutionality of Proposition 8 is currently being challenged in federal district court in Perry v. Schwarzenegger, which saw closing arguments last week. This challenge and other challenges to the laws prohibiting, authorizing or taking away marriage equality are anticipated to rise to the Supreme Court for review in the upcoming years. Civil Rights and Anti-Discrimination Statutes. A hallmark achievement of the LGBT community in 2009 was the enactment of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA), a statute that protects LGBT people from hate-motivated violent crimes. While this statute was carefully drafted to avoid constitutional challenges, anti-LGBT organizations are nonetheless challenging this important civil rights statute. In Glenn v. Holder, a case currently being litigated in federal district court in Michigan, an anti-LGBT organization claims that the hate crimes statute creates “a special class of persons who are ‘more equal than others’ based on nothing more than deviant, sexual behavior.” Civil rights and anti-discrimination laws, like the HCPA, are critically important to the LGBT community. Challenges to these laws are likely to continue, and as the LGBT community gains greater protections from discrimination in our nation’s laws, the Supreme Court will likely be required to weigh in on similar challenges. Relationship Recognition. Another notable accomplishment for the LGBT community in 2009 was a Presidential memorandum that directs all federal agencies to identify benefits they could extend to the same-sex partners of federal employees under existing law. Benefits that have been extended as a result of this memorandum include bereavement leave, sick leave, travel and relocation benefits, long-term care insurance and child care subsidies. Other benefits, however, cannot be extended to married same-sex couples because of the Defense of Marriage Act (DOMA), which prevents the federal government from recognizing marriages between same-sex couples. Currently, there are two ongoing challenges to DOMA in federal district court in Massachusetts. In Commonwealth of Massachusetts v. Department of Health and Human Services, et al, the Attorney General of Massachusetts is alleging that DOMA oversteps Congress’s constitutional powers by legislating on a topic reserved for the states, and by conditioning funds for programs like Medicaid on Massachusetts discriminating against some of its married citizens. In Gill v. Office of Personnel Management, eight married Massachusetts same-sex couples and three surviving spouses who have been denied federal benefits because of DOMA are challenging the constitutionality of the law. While both of these cases are currently in the early stages of litigation, there is little doubt by LGBT advocates that cases challenging DOMA will be up for judicial review by the Supreme Court in the coming years. Current Supreme Court Litigation. The Court is expected to announce decisions in two cases of interest to the LGBT movement by the end of its current term. In Doe v. Reed, the question before the Court is whether or not anti-LGBT groups must disclose signatures of those who signed a petition in Washington to put Referendum 71 on the ballot, an initiative which would have rolled back the state’s domestic partnership law. The plaintiffs in Doe claim that disclosure of the signatures would subject those supporting Referendum 71 to harassment and perhaps even violence by supporters of LGBT rights. In the second case, Christian Legal Society (CLS) v. Martinez, the Supreme Court will decide whether it is constitutional for a public college to refuse to recognize a religious student organization that only allows those who accept the organization’s religious beliefs to become officers and voting members. While this case could have significant repercussions for policies that protect LGBT students, its outcome could reach much further. A decision by the Supreme Court in CLS may have an impact on whether religion can serve as a proxy for discrimination against LGBT people in other areas. These Supreme Court decisions will no doubt affect the LGBT community. Stay tuned on our blog for our analysis of their impact on the LGBT community. As is obvious, the LGBT community is hard at work fighting discrimination and pushing for equality in all areas of our lives. However, the forward momentum of the community’s pursuit for equal rights has the ability to be both aided and hindered by the action and inaction of the courts. Justice Stevens was on the right side of history in key cases for the LGBT community, like Bowers v. Hardwick, Romer v. Evans, and Lawrence v. Texas. With an ally like Justice Stevens leaving the bench, Ms. Kagan must be prepared to fill the shoes of an equality-minded justice who leaves behind a legacy of fighting to ensure equality under the law for LGBT Americans. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page. Partial Contribution by Jessica Singleton, Legal Assistant.