Keen News Service - SoundSage

View Details

In a surprise move, a 6 to 3 majority of the U.S. Supreme Court did something good for LGBTQ people: It rejected Florida’s request for a stay against a lower court decision –a stay that would have enabled the state to enforce its new law banning drag shows under certain circumstances.

The case, Florida v. Hamburger Mary, originated with a restaurant in Orlando that showcases numerous drag show events, including Family Nights. That activity was threatened in May when Republican Governor Ron DeSantis signed into law a five-bill package of legislation called the Let Kids Be Kids package. Four of the five parts attacked LGBTQ specific needs. It banned gender-affirming medical care, prohibited LGBTQ related topics in K-8 classrooms, required bathrooms and locker rooms to be used based on biological sex identified at birth, and it banned children from sexually explicit performances. Legislative debate made clear that the latter bill was aimed at drag shows.

The law banning kids from drag shows did not use the term “drag shows” or any LGBTQ-specific term. It defined the target of the legislation to be “adult live performance,” but the bill’s sponsor in the House said its purpose was to target drag shows, including those in various public places, such as “Drag Queen Story Time” at libraries, and drag performers at Pride events.

Hamburger Mary’s sued the state to protect its own right to conduct “family friendly” drag shows and, on June 23, federal district court Judge Gregory Presnell rejected the state’s request to dismiss the restaurant’s lawsuit. He also granted the business’ request for a preliminary injunction to stop the state from enforcing the law against Hamburger Mary’s.

Judge Presnell said the Florida law was so vague it was “dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech….” He also noted that parents are allowed to take children to R-rated movies. And he blocked the state from “any” enforcement of the law against any venue until his court could deliberate on the merits of the lawsuit.

In a 2 to 1 vote on October 13, a panel of the 11th Circuit U.S. Court of Appeals upheld that temporary injunction. Florida immediately filed an emergency request to the U.S. Supreme Court, asking the justices to stay that injunction.

Things looked promising for Florida at first. Justice Clarence Thomas is the justice given responsibility for 11th Circuit, and he could have granted the request himself. But, instead, he referred the matter to the full court.

On November 16, the Supreme Court issued a three-page response. In a 6 to 3 vote, the justices denied Florida’s request for an emergency stay.

“The Supreme Court did the right thing by leaving the injunction in place, but it’s unnerving that three justices dissented,” said Shannon Minter, legal director for the National Center for Lesbian Rights.

Justice Brett Kavanaugh, writing for the majority, said to win a stay on the lower court’s injunction Florida would have to show “a reasonable probability” that the Supreme Court would eventually grant a request on the question presented by the stay application.

“The State has not made that showing here,” wrote Kavanaugh. Joining Kavanaugh in rejecting the request for a stay were Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Jackson. Voting to grant the injunction were the court’s most reliable right-wing conservatives: Justices Thomas, Samuel Alito, and Neil Gorsuch.

Kavanaugh made clear that the majority, in rejecting the stay, was not making any comment about the district court judge’s statement that the law likely violates the First Amendment. Instead, he wrote, the rejection was based on a more technical question: whether the district court judge had the authority to block enforcement of the law against any venue beyond Hamburger Mary’s.

Meanwhile, in other recent Supreme Court developments, the ACLU and Lambda Legal appealed a case to the Supreme Court November 2 that asks the justices to uphold a preliminary injunction to stop enforcement of a Tennessee law. The Tennessee law bans current and future gender-affirming medical care for young people. In the Tennessee case, the pro-LGBTQ legal team argues that the ban on gender-affirming medical care “likely violates the fundamental right of parents to make decisions concerning the medical care of their children.”

In L.W. v. Tennessee, the groups lost their appeal to the Sixth Circuit U.S. Court of Appeals and have, thus, brought the appeal to the U.S. Supreme Court.

Tennessee’s law bans the prescription of gender-affirming medication for gender dysphoria if it is prescribed to enable a person to live as a gender not designated on the person’s original birth certificate.

The groups represent three transgender youth and their parents, as well as a physician. The young people all suffered “severe distress from gender dysphoria” and obtained relief through medication.

“Tennessee and 20 other states have banned these treatments altogether, forcing families to upend their lives and move out of state to ensure that their children get the medical treatment they need,” states the ACLU-Lambda petition.

“I hope that LGBT people across this country recognize that never in our lifetimes have we been in such danger of losing basic freedoms,” said Minter. “We are fighting in the courts, but we must face up to the stark reality that our nation’s highest court is highly unlikely to be a reliable defender of our rights. Any LGBT person who is not intensely focused on the upcoming elections does not understand gravity of the situation.”

View Details

The only thing worse than a bad ruling at the U.S. Supreme Court is a bad ruling that sets up the prospect that the worst is yet to come.

Former Solicitor General Donald Verrelli worried about that prospect a year ago when he wrote, in an essay for the American Bar Association, that the 303 Creative v. Elenis appeal could have consequences far beyond sexual orientation discrimination.

“What if, for example, [Lorie] Smith [the website designer who brought the case] had instead asserted that her religious beliefs forbade her from employing her creative abilities to celebrate an interracial marriage, or even to serve African Americans at all?” said Verrelli. “While such hypotheticals may seem far-fetched today, those are precisely the kinds of arguments that challengers to the civil rights laws made during the 1950s and 1960s.”

Justice Neil Gorsuch did not mention the Civil Rights Act of 1964—not once–in his opinion for the 6 to 3 majority June 30. He did not contemplate the implications for interracial couples, even though two of the court’s nine justices are part of interracial marriages. And he certainly didn’t mention –as he did in the Title VII decision he wrote— that “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”

And certainly, Gorsuch did not mention that a billionaire credited with doing a lot to get Gorsuch appointed to the Supreme Court also gave thousands of dollars to support the work of the Alliance Defending Freedom, which brought forth the 303 Creative case.

Gorsuch and the 6 to 3 majority’s 2019 decision in the Title VII case, Bostock v. Clayton County, held that the federal law barring discrimination on the basis of “sex” in employment also prohibits discrimination on the basis of “sexual orientation” and “gender status.” Gorsuch and the 6 to 3 majority’s 2023 decision in the public accommodations case, 303 Creative v. Elenis, held that the First Amendment right to free speech can, in certain circumstances, free business owners to violate state laws prohibiting discrimination on the basis of sexual orientation. (Technically, Lorie Smith said she would not create websites for people having same-sex marriages; realistically, nearly all same-sex marriages involve LGBTQ people, not heterosexuals.)

The Gorsuch decision in Bostock was meticulously reasoned; the Gorsuch decision in 303 Creative came across as rushed, defensive, and painfully aware that the question the court posed was stacked to reach its result.

The dissent to the 303 Creative, written by Justice Sonia Sotomayor, contemplates various implications of the ruling.

“Although the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity,” warned Sotomayor. “The decision threatens to balkanize the market and to allow the exclusion of other groups from many services.”

Echoing a county judge in Virginia who, in 1959, found Richard and Mildred Loving guilty of violating that state’s law against interracial marriage, Sotomayor added, “A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’”

“Yet the reason for discrimination need not even be religious,” noted Sotomayor, “as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for ‘traditional’ families. And so on.”

The NAACP Legal Defense Fund, in reaction to the 303 Creative majority decision, said it “provides cover for those who seek to curb any group of people’s right to access services due to their identity.”

“For multiple reasons, this decision is a direct threat to everyone at risk for discrimination,” said Jenny Pizer, chief legal director for Lambda Legal. “The decision states explicitly that discrimination based on sexual orientation is to be treated the same as other forms of discrimination prohibited by Colorado law. That might at first glance seem like good news to LGBTQ+ people because there has been a fear that this court would contrive a way to rule that some version of cherry-picked history justifies using a less-protective standard for anti-LGBTQ+ discrimination. But the equal-treatment principle comes in the context of this court creating a new exception to civil rights laws that reduces the protection for everyone.”

Within days of the June 30 decision, officials at a Catholic high school in Indianapolis said the ruling provided cover for their decision to fire two guidance counselors because each is married to a same-sex partner. A justice of the peace in Texas said she thinks the ruling provide cover for her refusal to officiate marriages for same-sex couples. The Alliance Defending Freedom, the anti-LGBTQ legal group that pressed the 303 Creative lawsuit, said Monday (July 17) that it is asking two federal circuit courts to apply that decision in cases they have on appeal for wedding photographers in New York and Kentucky. And the First Liberty Institute expressed confidence that the 303 Creative decision bodes well for their client, a Portland, Oregon, bakery that has refused to sell to same-sex couples.

In Klein v. Oregon, the Oregon Court of Appeals ruled that owners of the bakery, Melissa and Aaron Klein, could not cite their religious beliefs in order to violate a state law that prohibits discrimination based on sexual orientation in public accommodations. The U.S. Supreme Court vacated that decision once in 2019 and asked the lower court to reconsider the case “in light of” the U.S. Supreme Court’s decision in Masterpiece Cakeshop v. Colorado. Oregon came back with the same decision. But on June 30 this year, the Supreme Court vacated the Oregon decision again and sent it back, directing the lower court to give “further consideration” to the case, “in light of” 303 Creative.

“The actual [303 Creative] ruling is limited, but the discrimination door is now open, wide open,” said Richard Socarides, a legal analyst and commentator for a number of national media outlets. “Given the court we are stuck with, I would say the future outlook is quite gloomy.”

Quite. And yet, there were a few tiny moments of relied in the Supreme Court’s 2022-23 session. Tiny, because they were appeals that the Supreme Court simply refused to take. One involved a public school seeking to require girls to wear skirts; one sought to defend a ban on transgender athletes in schools; and one attempted to undermine anti-discrimination laws in employment. The refusal to hear the appeals has no legal value–they are simply three among 7,000 or more similar appeals that sought Supreme Court review but were turned down. The three included:

Church school bias: In Faith Bible v. Tucker, a church school sought to defend itself against a lawsuit alleging racially motivated discrimination by claiming the teacher it fired was a “minister.” In previous rulings, the Supreme Court has given church employers exemptions from certain non-discrimination laws if the violation alleged is against a “ministerial” employee. The LGBTQ legal group GLAD joined a brief arguing that church employers will just label all employees ministerial in order to gain the exemption, leaving LGBTQ people and others “unprotected.” Faith Bible lost at the appeals court level and appealed to the U.S. Supreme Court. On June 12, the Supreme Court declined to hear the church school’s appeal.
School dress policy: A charter school in North Carolina appealed a lower court decision that found its dress code violated the right to equal protection for its girl students. In Charter Day School v. Peltier, the school claimed its policy of requiring girls to wear skirts was necessary to “preserve chivalry” and because a girl is a “fragile vessel.” The mother of a female kindergarten student filed a lawsuit, which some other parents joined, challenging the policy as sex discrimination and saying it was based on gender stereotypes. The ACLU, Human Rights Campaign, GLBTQ Legal Advocates & Defenders (GLAD), the National Center for Transgender Equality, and others were among the LGBTQ groups who submitted briefs in support of the female students in the lawsuit. The students lost at the district court level but won at the appeals court level. The school appealed to the U.S. Supreme Court and on, June 26, the Supreme Court declined to hear the charter school’s appeal. The court’s denial said nothing of its feelings about whether schools can dictate how girls and boys should dress. The key legal question was simply whether this charter school operated as part of the public school system and, as such, had to provide equal protection of the law to all its students.
Trans female athletes: In a 7 to 2 vote, the Supreme Court on April 6 denied a request from West Virginia to vacate a federal appeals court injunction that prevented the state’s anti-transgender law from taking effect. The injunction is set to remain in place until the lower courts rule on the constitutionality of the law. The West Virginia law, which is one of many similar laws passed in various states around the country, requires that students who participate in girls/women’s sports at public secondary schools or universities, must be identified as biologically female at birth. With the aid of Lambda Legal and the ACLU, the parent of an 11-year-old student in third grade challenged the law as violating Title IX. The student, who was identified as male at birth, self-identified as female since age 3, has been treated for gender dysphoria since third grade, and has not experienced puberty. Two federal appeals courts, including the Fourth Circuit U.S. Court of Appeals, have ruled that Title IX, the federal law that prohibits discrimination based on sex in federally supported schools, covers gender identity. The district court ruled against the student (Becky Pepper-Jackson, now 13), but the Fourth Circuit issued an injunction to stop the law from taking effect until the appeals court could rule. West Virginia asked the U.S. Supreme Court to vacate that injunction, but the majority refused. The case, BPJ v. West Virginia, will almost certainly be back before the Supreme Court once the Fourth Circuit rules.

Jenny Pizer, chief legal officer for Lambda Legal, said, “It’s hard to know what’s likely to come next – where and whether this majority will see logical limits to this new free speech carve-out….The rule has been [that] the business decides what to make and sell, not to whom to sell.”

View Details

Some believe the U.S. Supreme Court’s decision June 30 in 303 Creative v. Elenis may be one of the most consequential in LGBTQ legal history—a kind of “separate but equal” pronouncement on how the courts should treat LGBTQ people under the law. Others see a “narrow” injury to the right of LGBTQ people to equal protection of the law and one that will come into play very rarely.

The true consequences will likely take many years to realize. That was the case with the notorious and widely harmful 1986 decision in Bowers v. Hardwick. The 5 to 4 decision said states could prohibit same-sex sexual relationships, and it was wielded against LGBTQ people both legally and socially. It took 17 years to overturn.

In that 17 years, seven of the nine justices who were on the high court and voted in Hardwick left the bench, including three of the five who had voted to allow bans on same-sex relationships. One of the five, Justice Sandra Day O’Connor, changed her mind. So, when the vote on so-called “sodomy laws” came up again, in Lawrence v. Texas in 2003, the vote was 6 to 3 to strike down such bans.

Twenty years have passed since Lawrence, and only one justice who was on the bench in 2003 is still there now: Justice Clarence Thomas. He and five of his conservative Republican appointees voted June 30 to approve the first ever exemption to state laws that prohibit discrimination based on sexual orientation in the public marketplace. Thomas is 75; the other five range in age from 51 (Amy Coney Barrett) to 73 (Samuel Alito). If each current justice retires at 80 (the approximate average age that a justice retires these days), and if a pro-LGBTQ president is in office when each retires, and if nobody dies, the soonest 303 Creative might be overturned is 2030.

So, how did this happen? First, of course, then Republican Senate President Mitch McConnell denied a confirmation vote on Obama nominee Merrick Garland. Then he raced three Trump nominees through, creating a super majority of six conservative Republicans on the U.S. Supreme Court.

With six conservatives on the court, the Alliance Defending Freedom, a national conservative litigation group seeking to undermine equal rights for LGBTQ people—and one which was consistently losing cases at the lower court levels– accelerated its efforts to get appeals to the U.S. Supreme Court.

One case it had in the pipeline was 303 Creative v. Elenis. It involved a website designer, Lorie Smith of Colorado who was willing to say that she was opposed to same-sex marriage for religious reasons and that she had “worries” that a same-sex couple might come to her and ask her to design a wedding website for them. If a gay couple did, she said her Christian beliefs would require her to say no, thus putting her in violation of Colorado’s law against discrimination based on sexual orientation in public accommodations.

There was no evidence that any same-sex couple had ever asked her, and this is a particularly interesting point. Typically, courts won’t take a case unless there is a real –not imagined— conflict. Presumably, the Alliance could not find a website designer who ever faced a real conflict, so it proceeded with Smith and her “worries.” The litigation lost in the district court (which noted that Smith had not been faced with a same-sex couple’s request) and lost in the federal appeals court (which said Smith’s religious beliefs did not exempt her from obeying the law that applies to all businesses).

The next key turning point was when the Colorado attorney general’s office conceded that Smith’s plans to start designing wedding websites would constitute an “expressive” activity –or speech— protected by the First Amendment. Many, if not most, wedding websites simply take information and photos which a couple provides and plug those into existing website templates. Smith claimed that she would pour herself into the creation of each website, so much so that the couple’s wedding website is really her speech, not theirs. So, if Colorado forced Smith to create wedding websites for same-sex couples’ weddings, it would be abridging herFirst Amendment right to free speech.

And then, oddly, the U.S. Supreme Court agreed to hear the Alliance’s appeal for Smith’s case and, in doing so, stipulated that the only question it wanted to hear arguments about was “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

On its face, the answer seemed obvious: Of course, it does. The court’s question presumed Colorado applied the state law to “compel” Smith to “speak or stay silent.”

As ACLU legal director David Cole said in a New York Times guest column last December, “The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is ‘expressive’ or ‘artistic’.”

How bad is the damage? LGBTQ legal groups released statements, saying the Supreme Court’s 303 Creative decision was a disappointing but that it would have very little impact. After all, what LGBTQ person or couple would knowingly go to an anti-LGBTQ business to seek a pro-LGBTQ-specific product or service?

Lambda Legal’s Chief Legal Officer, Jenny Pizer, said 303 Creative would have “limited practical impact in the marketplace.”

“Given the uniquely creative service at issue here, the impact is likely to be minimal,” said Pizer. “But the door has been opened for potential future cases to expand this limited carve-out. We will be vigilant against that possibility.”

A statement released by GLBTQ Legal Advocates & Defenders (aka GLAD) said the “unusual nature” of the 303 Creative complaint “suggests the ruling has virtually no application to the overwhelming majority of businesses providing goods and services to the public.”

Some pro-LGBTQ organizations were a less optimistic. The executive director of the National Center for Lesbian Rights, Imani Rupert-Gordon, issued a statement saying that, “While the Court’s holding is narrow and will apply only to a very small number of businesses, the dissenting justices rightly stress that the decision creates an unprecedented exception to nondiscrimination laws.”

David Cole, legal director for the national ACLU, said the majority decision “opens the door to any business that claims to provide customized services to discriminate against historically-marginalized groups.”

Most non-LGBTQ commentators were occupied with the only other decision released June 30, the court’s last day in the 2022-23 session. That decision, Biden v. Nebraska, had the same 6 to 3 split as 303 Creative. It struck down President Biden’s program to forgive up to $20,000 per person in federal student loan debt. But those media who did comment on 303 Creative, saw things more like Cole.

“The court handed a major victory to business owners who oppose same-sex marriage for religious reasons,” said Amy Howe, who writes regularly for the popular scotusblog.com site.

New York Times reporters Abbie VanSickle and Adam Liptak said, “The decision also appeared to suggest that the rights of L.G.B.T.Q. people…are on more vulnerable legal footing, particularly when they are at odds with claims of religious freedom. At the same time, the ruling limited the ability of governments to enforce anti-discrimination laws.”

President Biden issued a statement saying he was “deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans.”

“More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations – including people of color, people with disabilities, people of faith, and women,” said Biden.

Law professor and MSNBC legal commentator Joyce Vance said in her blog that the 303 Creativedecision sets up “an opening here to use the First Amendment to establish the primacy of one group’s religious views in a way that is antithetical to the Founding Father’s vision of a religiously-neutral government.”

“That’s the slippery slope here,” said Vance, “and the rate of descent depends on how far this Court is willing to go.”

Also getting considerable attention from general media were reports that the Alliance Defending Freedom filed documents with the court that included a significant piece of what appears to be false information. Specifically, the documents indicate that Lorie Smith said, under oath, that a same-sex couple had contacted her through her website to ask about creating wedding design for them. This is important because courts do not typically take cases unless an “injury in fact” to the plaintiff’s rights is either actual or “imminent.”

According to the New Republic magazine and numerous other outlets, Smith identified under oath that a man named “Stewart” inquired about retaining her services to design something for his wedding to another man and left a phone number. Media calling the phone number got a “Stewart,” but the man, who would not share his last name, told the media he is not gay, has never contacted Smith to ask about a gay wedding website, has been married to a woman for 15 years, and is himself a web designer. The Alliance’s case, said the New Republic, was “built on nothing much more than imaginary Christian grievance.”

Harvard law professor Laurence Tribe, in a Twitter post Friday said, “If this were a normal court, with real judges in the majority, it would take seriously the news that this was a fraudulent case and would vacate its opinion and direct the imposition of sanctions on the lawyers who hacked the legal system and perpetrated this hoax.”

Twenty-eight states and the District of Columbia have laws on the books which explicitly, or by court interpretation, prohibit sexual orientation discrimination in public accommodations. “Public accommodations” means any business or venue that is open to and/or serves the public, including restaurants, hotels, means of transportation, entertainment or sports venues, and website designers.

View Details

The U.S. Supreme Court ruled June 30 that the First Amendment right to free speech can, in certain circumstances, free business owners to violate state laws prohibiting discrimination based on sexual orientation.

The decision arose out of a case in which a wedding website designer asked federal courts to declare she did not have to create wedding websites for same-sex couples.

The vote in 303 Creative v. Elenis was 6 to 3, with Justice Neil Gorsuch (a Trump appointee) writing for the majority. He was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, all Republican appointees.

Justice Sonia Sotomayor (an Obama nominee) wrote for the minority, which included Elena Kagan and Ketanji Jackson, all Democratic appointees.

Citing heavily from Supreme Court “controlling precedents” in which LGBTQ people lost ground in the past (Boy Scouts, Irish parade, etc.), Gorsuch wrote, “The framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’” He said “the freedom to think and speak is among our inalienable human rights,” that it is “‘indispensable to the discovery and spread of political truth,’” and that “government may not interfere with ‘an uninhibited marketplace of ideas.’”

Gorsuch noted that both sides of the litigation agreed that the web designer, Lorie Smith, created websites to “celebrat[e] and promot[e]” what Ms. Smith understands to be a true marriage” –that between a man and a woman.

To rule otherwise, said Gorsuch, “the government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages.”

“Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”

In the opening sentence of her dissent, Sotomayor quoted a conservative majority’s opinion in Masterpiece Cakeshop v. Colorado: “Five years ago, this Court recognized the ‘general rule’ that religious and philosophical objections to gay marriage ‘do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

“…Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” wrote Sotomayor. “…This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims….[T]he law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group.”

303 Creative v. Elenis involved a website designer, Lorie Smith, in Colorado who asked federal courts to declare that she had a right to refuse to design wedding websites for same-sex couples. The Alliance Defending Freedom represented Smith in seeking a pre-emptive ruling. Attorney General Aubrey Elenis defended the law of Colorado, whose governor, Jared Polis, is the first openly gay man to be elected governor of any state.

The Alliance, which has led numerous lawsuits seeking to undermine state laws that protect LGBTQ citizens, lost this case in federal district court and in the 10th Circuit U.S. Court of Appeals. The 10th Circuit said Colorado’s public accommodations law was a neutral law of general applicability and that it was not unconstitutionally vague or overbroad, as the Alliance had argued.

The Supreme Court majority decision reversed the 10th Circuit decision yet spent much of its time trying to illustrate ways in which the appeals court and the majority agreed. Justice Gorsuch also spent an inordinate amount of ink defending the majority opinion from Sotomayor’s stinging dissent –which characterized the majority decision as “embarrassing.”

Gorsuch noted that the dissent accused the majority decision of being “akin to endorsing a ‘separate but equal’ regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a ‘White Applicants Only’ sign.”

“But those cases are not this case,” wrote Gorsuch. “Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind.”

The Alliance claimed the web designer sought only the First Amendment right to express herself “in a manner consistent with [her] religious beliefs; [she] does not seek to impose those beliefs on anyone else.” The designer claimed she would serve LGBT people if the message of the website they sought did not conflict with her religious views opposing marriage for same-sex couples.

The Alliance and other extreme right-wing groups have been trying for years to win from the courts a broad exemption from various laws that prohibit discrimination based on sexual orientation and gender identity. They have mostly been rebuffed.

The Alliance’s argument this time was that the designer of wedding websites had “the right to choose what messages her works convey” and that she chose to convey messages to “express what she believes is the beauty of God’s design for marriage.” The Alliance said the Colorado law prohibiting discrimination in public accommodation (including the marketplace) violated the web designer’s First Amendment right to freedom of expression by “forcing” her and other artists “to speak messages that violate their deeply held beliefs.”

LGBTQ groups argued that the Alliance was trying to create an “unbounded exemption” to non-discrimination laws, including the federal Civil Rights Act of 1964, and would be a “dangerous change to longstanding law.”

Jenny Pizer, chief legal officer for Lambda Legal, said she thinks the 303 Creative decision will have “limited practical impact” because “few commercial services involve original artwork.” But she characterized the majority decision as a “dangerous siren call to those trying to return the country to the social and legal norms of the Nineteenth Century….”

View Details

The escalating clash over the availability of a certain FDA-approved medication to terminate an early-stage pregnancy has significant implications for many LGBTQ people. Over the years, various entities have tried to block the use of medications for HIV prevention and hormones for gender transition. Now, the court battles raging over the abortion drug RU-486 (also known as mifepristone) could determine whether any federal judge has the power to pull any controversial medication off the market.

There was guarded appreciation April 21 when the U.S. Supreme Court announced it would block, at least temporarily, the enforcement of a lower court decision in Texas that sought to pull RU-486 off the market. (Two justices –Clarence Thomas and Samuel Alito—dissented from the stay.)

“While today’s ruling to keep this safe, effective drug available for the time being is a sense of relief,” said U.S. Senator Tammy Baldwin, “our fight to preserve a woman’s right to control when and if to have a family continues.”

The Supreme Court’s procedural action came in a consolidation of two appeals, FDA v. Alliance for Hippocratic Medicine and Danco Pharmaceuticals v. Alliance. Both appeals asked the Supreme Court to stay an order issued by a U.S. district court judge in Texas until the merits of the case could be argued at the circuit court appeals level.

Alliance v. FDA began when an anti-abortion coalition asked a federal judge (appointed by then President Trump) in Amarillo, Texas, to strike down the FDA’s long-standing approval of RU-486. The judge did so on April 7. That same day, another federal judge (appointed by then President Obama) in Spokane, Washington, issued a ruling to ensure that RU-486 would remain available in 18 states which joined a lawsuit by the company that distributes RU-486 (Danco).

The Texas decision moved quickly to the Fifth Circuit U.S. Court of Appeals which issued a stay against only part of the district court’s ruling. The FDA quickly appealed to the U.S. Supreme Court and, on April 21, the Supreme Court stayed the district court’s entire order.

“LGBT people should care about this case,” said Jenny Pizer, chief legal officer for Lambda Legal. In fact, she said, LGBTQ people should be “profoundly alarmed” by the Texas judge’s “utterly lawless ruling” and “only slightly less” alarmed by the Fifth Circuit’s willingness to let part of the judge’s ruling take effect.

“First, many LBTQ people need ready access to emergency contraception for a range of medical reasons, including the decision not to continue a pregnancy for one’s own reasons,” explained Pizer. “…The trial court’s approach just as easily (or perhaps more easily) could be aimed at HIV-related medications and puberty blockers and hormone treatments, as well as medications for many other health conditions that are specially relevant for our communities.”

Lambda Legal and other LGBTQ groups have long warned that any damage done to the right to choose an abortion could have deep implications for the right to have intimate relations, including marriage, for LGBTQ people. Abortion, said Pizer, “is an LGBTQ+ issue for personal medical reasons, liberty and autonomy doctrinal reasons, and [for] broad, movement partnership reasons.”

Lambda Legal and the National Center for Lesbian Rights were among the more than 200 civil rights, health, and justice organizations which submitted a brief to urge the Supreme Court to block the Texas judge’s ban from going into effect. Twelve out of 13 of Congress’ openly LGBTQ members signed onto a similar brief from 253 members of Congress.

The Congressional brief against allowing the Texas judge’s ruling to take effect said the ruling and the Fifth Circuit’s upholding of part of it had “perilous consequences that reach far beyond mifepristone.”

“Providers and patients rely on the availability of thousands of FDA-approved drugs to treat or manage a range of medical conditions, including asthma, HIV, infertility, heart disease, diabetes, and more,” said the brief. “Moreover, the prospect of courts second-guessing FDA’s rigorous drug safety and effectiveness determinations will disrupt industry expectations and could chill pharmaceutical research and development.”

The District of Columbia and 23 states also submitted a brief to the Supreme Court, asking it to stop the Texas judge’s ruling from going into effect. Those states, including California, Illinois, Massachusetts, Michigan, and Oregon, said that taking RU-486 off the market would increase the need for surgical abortions, thus increasing the stress on many clinical facilities and causing delays that affect all patients.

“Delays resulting from increased demand for [surgical] abortion procedures will obstruct access to other forms of care at those facilities, inevitably resulting in higher rates of unintended pregnancy and sexually transmitted infections, barriers to early detection and treatment for breast, ovarian, and testicular cancers, and worsened health outcomes for patients’ overall sexual and reproductive health and beyond. Those harms,” said the states’ brief, “will disproportionately impact groups already underserved by the health care system, including women of color, low-income women, people with disabilities, and LGBTQ individuals.”

The Texas case will now go back to the federal appeals court to rule on the merits of the litigation and then, almost certainly, will be appealed again to the U.S. Supreme Court.

“If the [Fifth Circuit] appeals courts were to accept the trial court’s brazen disregard of the decades of evidence that mifepristone is safe, that pregnancy and childbirth are riskier, and that many, many other medications are far riskier,” said Pizer, “we all will be living in a much more dangerous society.”

Meanwhile, just three days after the Texas judge issued his decision, Massachusetts’ newly inaugurated lesbian governor, Maura Healey, directed her state to stockpile RU-486 to ensure that women who need the drug can get it.

“Here in Massachusetts, we are not going to let one extremist judge in Texas turn back the clock on this proven medication and restrict access to care in our state,” said Healey. California Governor Gavin Newsom made a similar announcement the same day (April 10). Oregon’s new lesbian governor, Tina Kotek, announced April 20 that her state would stockpile RU-486, saying the Texas judge’s decision “set an alarming precedent of putting politics above established science, medical evidence, and a patient’s health, life, and well-being–with potential implications beyond this one medication.” Kotek said the Alliance’s lawsuit is “part of a larger campaign to ban abortion in every state, including those with legal protections for abortion access.”

View Details

Transgender athletes saw two significant victories last week: one from the conservative U.S. Supreme Court and the other from the LGBTQ-friendly White House of President Joe Biden. The events triggered a flood of national media attention, and found lesbian tennis legend Martina Navratilova on the side of those wishing to bar transgender females from participating in female sporting events.

Neither of the two developments changes any law at this time, but both represent powerful pushbacks against a wave of hostile legislation in many states.

The Supreme Court vote announced April 6 temporarily stops a recently passed ban in West Virginia against transgender athletes. The law is a variation on the numerous laws against transgender students that are being enacted around the country. The West Virginia law requires that public secondary schools and universities bar any student identified as male at birth from participating in a sport designated for female students.

The Supreme Court voted 7 to 2 in West Virginia v. BPJ to reject the state’s request that the Supreme Court vacate a federal appeals court injunction in February that prevented the anti-transgender law from taking effect. The injunction is set to remain in place until the appeals court rules on the constitutionality of the law.

The Alliance Defending Freedom joined the state of West Virginia in its request to vacate the Fourth Circuit U.S. Court of Appeal’s injunction. Twenty-one states joined a brief supporting West Virginia’s request, including Florida, Georgia, Texas, and Virginia. And a group of 67 female athletes, coaches, and parents, including lesbian tennis legend Martina Navratilova, submitted a brief in support of the West Virginia law.

“At every level, we are aware that less skilled, less determined males beat higher level female athletes because of innate physical difference in the sexes,” said the group’s brief. “…When women and girls are asked to compete against male athletes, they are asked to ignore biological reality, the reality that defines femalephysical bodies.”

Justices Clarence Thomas and Samuel Alito, the Supreme Court’s most consistently anti-LGBTQ members, submitted a dissent to the majority’s denial of West Virginia’s request. They said the court is “likely” to take up the issue “in the near future.” Specifically, they said, the issue will be whether Title IX of the Education Amendments of 1972 or the 14th Amendment’s Equal Protection Clause prohibit a state law “restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.” The dissent also hinted that the majority’s vote may have been based on a procedural matter: that West Virginia took 18 months before seeking to vacate the lower court injunctions.

The West Virginia law was due to go into effect in July 2021, but the ACLU and Lambda Legal filed litigation, BPJ v. West Virginia, to challenge the constitutionality of the law and prevent it from taking effect. (Subsequent to filing the lawsuit, the plaintiff in the challenge has been identified as now 12-year-old Becky Pepper-Jackson.)

Biden crafts a moderate proposal

The Biden administration’s proposed rule change, from the U.S. Department of Education, cannot take effect until after a 30-day period during which the public can comment on the proposal and the Biden administration can take those comments into consideration.

The 115-page proposed rule change would amend one section of Title IX of the Education Amendments act, the federal law which prohibits discrimination “on the basis of sex” in schools that receive federal funding. The section (106.41b) says schools can have separate teams for males and females for contact sports. The Biden administration proposal seeks to add that, if a school refuses to allow a transgender student play on a team that matches their gender identity, the refusal must be based on a need to “minimize harms” and “be substantially related to the achievement of an important educational objective.”

“This clarification regarding Title IX’s application to sex-related eligibility criteria is particularly important as some States have adopted criteria that categorically limit transgender students’ eligibility to participate on male or female athletic teams consistent with their gender identity,” stated the Department of Education’s Notice of Proposed Rulemaking (NPRM). DOE said it developed the proposal after getting feedback from stakeholders through a public hearing, listening sessions, and correspondence. It also stated that it referred to policies developed last year by the International Olympic Committee and the National Collegiate Athletics Association.

DOE referred to reports from these groups and others that indicate how, in schools, participation in sports serves various social, emotional, physical, and cognitive development,” such as learning to work as a team.

“The Department finds the work of these organizations on this issue to be informative to the extent the organizations aim to balance important interests, minimize harm to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied, and take account of the sport, level of competition, and grade or education level of students,” stated the DOE proposal.

“…Youth participation in athletics is associated with many physical, emotional, academic, and interpersonal benefits for students, including increased cognitive performance and creativity, improved educational and occupational skills, higher academic performance and likelihood of graduation from a 4-year college, improved mental health, and improved cardiovascular and muscle fitness, as well as reduced risk of cancer and diabetes, and has the potential to help students develop traits that benefit them in school and throughout life, including teamwork, discipline, resilience, leadership, confidence, social skills, and physical fitness,” stated the DOE proposal.

At deadline, the proposed rule change had not yet been published in the Federal Register. Once it is, interested groups and individuals have 30 days to submit comments for DOE to consider before publishing a final rule change.

In related news, openly gay White House Press Secretary Katrine Jean-Pierre announced at her daily press briefing April 6 that the administration has also created a special helpline for transgender youth. With the National Suicide Prevention Lifeline, a transgender person can call 988 and then the number 3 to be connected to a counselor who has been specifically trained to help LGBTQ+ youth.

“This has been one of the worst weeks of 2023 so far in terms of anti-LGBTQ bills becoming law in states across America,” noted Jean-Pierre. She explained that four states –Idaho, Indiana, Kansas, and North Dakota —enacted anti-LGBTQ bills this week. The Kansas law bans transgender kids from school sports. A total of 14 states currently ban health care professionals from providing gender-affirming care.
“Look, this is awful news. Let’s be very clear about that,” said Jean-Pierre. “LGBTQI+ kids are resilient. They are fierce. They fight back. They’re not going anywhere. And we have their back. This administration has their back.”

In addition to the anti-trans state laws, national news has prominently featured details about a 28-year-old shooter in Nashville who gunned down three children and three adults March 27 at a private Christian school where the shooter was once a student. Police identified the shooter as Audrey Hale and transgender. Excerpts from Hale’s texts indicated he preferred to be called Aidan Hale and use male pronouns. In a text to a friend shortly before the shooting, Hale indicated he planned to commit suicide.

View Details

There were times during the U.S. Supreme Court’s oral argument in this session’s highly significant LGBTQ case when some listeners might have thought they were hearing a modern day dramatic interpretation of the Mad Hatter’s Tea Party. Consider one exchange between Justice Neil Gorsuch and U.S. Deputy Solicitor General Brian Fletcher. Keep in mind that Justice Gorsuch, just two years ago, led a majority to say that the federal civil rights act protects employees from discrimination based on sexual orientation and gender identity. He was drinking a different tea December 5, when discussing whether a business could discriminate based on sexual orientation. The case, 303 Creative v. Colorado, challenges Colorado’s public accommodations law by seeking to allow a web designer to refuse to create wedding sites for same-sex couples. Here’s how the discussion went:

Gorsuch: We also have stipulations from Colorado that the [web designer] is willing to work with all people, regardless of classifications such as race, creed, sexual orientation, and gender, right? [“Stipulations” are facts that both sides have agreed to be true.]

Fletcher: In some respects, yes but not –

Gorsuch: No, that is the [stipulation]– I just read it. Do you disagree with that? It’s a stipulated fact in this case.

Fletcher: That is stipulated, but it’s also clear that [the web designer] will not provide any wedding website for a same-sex couple.

Gorsuch: Well, for a same-sex wedding —

Fletcher: For a same-sex wedding, yes.

Gorsuch: And she wouldn’t provide it to a heterosexual couple either, right?

The contorted supposition –that a heterosexual couple might want to buy a same-sex marriage wedding website—was probably concocted by Justice Gorsuch to illustrate his position. That is, he thinks the discrimination in this controversy is based on message (the web designer’s religious beliefs) versus status (the sexual orientation of the couples whom the web designer excludes). He later stated that “what would be impermissible is discrimination on the basis of status, but what would be permissible is refusing service because of a disagreement about views.”

Setting aside for the moment that there has never been a clamor by heterosexual couples to buy same-sex wedding websites, one has to wonder: What happened to the Justice Gorsuch who wrote, in the Title VII case Bostock v. Clayton County: “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations”?

Gorsuch was not the only guest at the tea party.

Consider the claims made by the attorney Kristen Waggoner, representing web designer Lorie Smith: Waggoner claimed that the U.S. Supreme Court has already “held” that views opposing same-sex marriages are “honorable and decent” (it has not said that as a matter of law) and that the court made “promises” in Obergefell v. Hodges “to protect those who would believe marriage is between a man and a woman from having to express a view that violates their conscience.”

Waggoner, head of the Alliance Defending Freedom which organized the initial lawsuit, was referring to the 2015 landmark Supreme Court decision in Obergefell v. Hodges. Written by then Justice Anthony Kennedy, Obergefell struck down state bans on same-sex marriage. In his majority opinion, Kennedy included a sentence that said he thought there could be “decent and honorable religious or philosophical” reasons for opposing same-sex marriage. When Waggoner and others quote Kennedy to support discrimination against same-sex couples, they omit significant content and characterize the non-binding observation as a “promise.” It is worth revisiting what Kennedy actually wrote:

“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”

Taken in full, Kennedy’s statement does not seem to support the idea that a web designer in the public marketplace can treat same-sex couples differently than male-female couples. In fact, the text of the recently passed federal Respect for Marriage Act, which says no state may deny recognition of a same-sex or interracial marriage licensed in another state, echoes Kennedy’s “decent and honorable” statement, too. It states that diverse beliefs about marriage are held by “sincere people based on decent and honorable religious or philosophical premises and that “Congress affirms that such people and their diverse beliefs are due proper respect.”

But right-wing groups have clipped out the “decent and honorable” quote to imply that the majority in Obergefellwas suggesting there was legal basis on which to discriminate against LGBTQ people. Justices Clarence Thomas and Samuel Alito gave prominence to the clip in 2020 when they issued a dissent to the court’s refusal to take up an appeal from a Kentucky county clerk who refused to issue marriages licenses to same-sex couples. In their dissent, Thomas and Alito misquoted the majority in Obergefell, saying it “briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often “decent and honorable.” [The Obergefell majority said that people who oppose same-sex marriage often due so “based on decent and honorable religious or philosophical premises.”]

In her remarks before the Supreme Court, ADF leader Waggoner repeatedly asserted that web designer Smith “believes that same-sex weddings contradict scripture” and that creating a wedding website for a same-sex couple would be “announcing a concept of marriage that she believes to be false.” The assertion reflected the fact that the court was not considering whether the web designer could refuse same-sex wedding sites on religious grounds but on any Free Speech grounds.

“I think what’s important is that the [web designer’s] objection is to the message she’s being asked to create,” said Waggoner. “And so, if she believes she’s being asked to create a message that violates her convictions, whether those convictions are based on a moral reason or a religious reason, it would be protected.”

If Waggoner’s reasoning were accepted by the Supreme Court, then most public accommodations laws would be gutted: A business could simply claim that it “believes” it is being asked to violate its “convictions” in order to refuse service to a customer for any reason.

Because public accommodations laws typically prohibit discrimination based on race, religion, national origin, sex, disability, and other categories, it seems unlikely all six conservatives on this court are ready to gut all such laws that dramatically. But the dialogue and the math do not look good for LGBTQ citizens who rely on public accommodations laws.

Comments, questions, and the records of the six conservative justices suggest they are not looking for a way to strengthen public accommodations laws to protect LGBTQ people. Chief Justice John Roberts indicated he saw this case as “not simply just restricting speech but actually compelling an individual to engage in speech contrary to her beliefs.” Justice Brett Kavanaugh suggested that, if the Colorado law prevails, states could expand the reach of such laws to force speech writers to produce messages they disagree with. Justice Amy Coney Barrett posed a hypothetical, asking Waggoner whether the web designer would refuse a wedding website to a male-female couple who were getting married after divorcing their previous spouses. Waggoner said no.

Justice Sonia Sotomayor warned during oral argument, “This would be first time in court’s history that that it would say that …a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation….”

Despite the enormity of the case’s eventual outcome, news reports on 303 Creative were fewer than usual for an LGBTQ-related argument. That may be because the court heard arguments two days later in what has been described as “the most important case for American democracy” in U.S. history. That case, Moore v. Harper, was argued December 7 and is set to determine whether state legislatures can create district maps and organize federal elections in each state in a way that gives a lopsided advantage to the political party in the majority –and do so without review by the courts to determine whether the maps and rules violate the state constitution.

The outcome of the Moore case out of North Carolina could have profound impact on the outcomes of presidential and Congressional elections. It could determine whether a legislature could choose a state’s presidential electors, and it could undermine the U.S. democratic system of checks and balances on the wielding of power in government. Most reporting and analysis on the Moore argument said the court seemed split into three groups: one against, one for, and one seeking a moderate compromise. As with the 303 Creative decision, the decision in Moore is not likely to be released until June 2023.

View Details

The U.S. Supreme Court sometimes makes significant moves long before it hears arguments in a case. Such is true in a blockbuster LGBTQ case pending before the court in its newly opened 2022-23 session.

In the appeal, 303 Creative v. Elenis, the anti-LGBTQ group Alliance Defending Freedom asked the court to decide whether a business could claim a religious exemption to a state law prohibiting discrimination based on sexual orientation in public accommodations. The court declined to answer that question but, instead, accepted the appeal to answer a different question: whether a business could claim a Free Speech right to discriminate.

“This is a case about commercial conduct, not speech,” said Mary Bonauto, GLAD civil rights project director and lead author of a brief urging the court to rule that the Free Speech clause does not exempt businesses from complying with public accommodation laws.

By examining the Free Speech claim, the court is setting up its eventual decision to have “far broader implications” than a religious exemption to civil rights laws, said ACLU attorney Amanda Shanor at a Federalist Society preview September 21. And as Kelsi Corkran, Supreme Court Director at the Institute for Constitutional Advocacy and Protection, said at a Georgetown Law preview, the narrowing of the question will enable the court to decide whether any business can simply articulate “any reason” to refuse serving customers because of their sexual orientation, race, gender, or other protected status.

“If there is a Free Speech right to selectively choose her customers based on the messages [the web designer] wants to endorse,” said Corkran, “I assume that would apply to any protected characteristic. I think it would apply to a white supremacist who doesn’t want to provide services to people of color.”

That was the assessment of several legal experts on a number of different panels examining the 2022-23 Supreme Court docket. The new session began October 3, and most panels identified the LGBTQ public accommodations case as one of the session’s four major conflicts. Others include voting rights, gerrymandering, and affirmative action.

So far, 303 Creative is also among several LGBTQ-related cases the Supreme Court might take up this session:

303 Creative v. Elenis –This case, which has been accepted for argument (probably in December), could allow any business in the public marketplace (hotels, restaurants, bakeries, web designers, etc.) to refuse service to a customer by claiming to have some personal objection to treating that customer the same as all others. While this case is based on a desire to refuse web design services to same-sex couples, it could undermine civil rights for the wide range of people protected by anti-discrimination laws. It pits a one-person web design company against Colorado laws (represented by state Attorney General Aubrey Elenis). The appeal seems a strange one for the court to have accepted, in that no same-sex couple has sought the web designer’s services. As longtime marriage equality attorney Evan Wolfson puts it, the case “doesn’t even present a true case or controversy and ought not to be before the Court.” The fact that the court has taken the appeal suggests the 6-3 conservative majority has decided to aggressively pursue the right-wing agenda.

Shannon Minter, legal director for the National Center for Lesbian Rights, said he finds the court’s question limit to Free Speech “extremely troubling.”

“The court framed the question to presuppose that designing a website for money in a business open to the general public is ‘artistic expression’ rather than an ordinary commercial service,” said Minter. “That is a radical departure from existing law. It’s one thing for the court to change the law. It’s another for the court to do so surreptitiously by framing the question in such a highly loaded and novel way.”

Boston College Law School Professor Kent Greenwood, at an American Constitution Society preview, said he believes the court will rule for the web artist.

“I have no doubt which way the court will decide. The court is expanding both its understanding of what speech is and its protection of it,” said Greenwood. “Though facially a speech case and not a religion clause case, the case fits comfortably in the court’s broadening effort to expand religious protections for religious people …especially those religions that are evangelical and mainstream. The court is increasingly solicitous of religion claims.”

Klein v. Oregon: This is a copycat case on a repeat appeal, and the Supreme Court has not yet indicated whether it will take it up. In Klein v. Oregon, the Oregon Court of Appeals ruled that a baker could not cite her religious beliefs in order to violate a state law that prohibits discrimination based on sexual orientation in public accommodations.

The U.S. Supreme Court vacated that state decision in 2019 and asked the lower court to reconsider the case “in light of” Masterpiece Cakeshop v. Colorado. Oregon did and came back with the same decision: A baker could not claim a Free Exercise of religion right to violate a state law against discrimination in public accommodations.

Florida v. NetChoice: In this case, Florida appeals to defend its newly passed law that stops social media from “censoring users based on viewpoint.” LGBTQ groups say that social media groups should be able to ban hate speech because, “Without adequate content moderation policies, digital forums and apps can become breeding grounds for homophobia, bullying (cyber and otherwise), harassment, and misinformation.” The 11th Circuit U.S. Court of Appeals ruled the Florida law violated the First Amendment rights of the social media companies. It cited such Supreme Court precedents as Hurley v. Irish-American Gay, establishing the right of a St. Patrick’s Day parade organizer to ban participation by LGBTQ groups. The Supreme Court has not yet indicated whether it will hear the appeal, but several panelists at preview conferences said the believe there’s a good likelihood it will.

NetChoice v. Texas: Texas and Florida are often dancing together these days and have done so here, with Texas also passing a law to stop social media from banning certain “viewpoints.” This case is still in procedural motions in lower courts, with the latest –a Fifth Circuit order—that allows the law to take effect while the legal challenge winds its way through the courts. NetChoice asked the Supreme Court to vacate the Fifth Circuit’s order and, in an apparent 6 to 3 vote, the court granted that request, keeping the Texas law null for now. Justice’s Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented. The case on the merits of the legal challenge will now proceed.

View Details

Chief Justice John Roberts and conservative Justice Brett Kavanaugh voted with the U.S. Supreme Court’s three liberal-leaning justices September 14 to reject a request that would have undermined a New York City law prohibiting discrimination based on sexual orientation in public accommodations.

While marking a temporary victory for civil rights for LGBTQ people, the 5 to 4 vote is unlikely to be a reliable indicator of whether the Supreme Court is inclined to allow entities to evade public accommodation laws by claiming a religious motive to discriminate. That question will likely be resolved by another case, 303 Creative v. Elenis, which has already been accepted for argument before the Supreme Court in the coming 2022-23 session.

The Supreme Court vote this month came in response to an emergency request from Yeshiva University, asking the Supreme Court to issue a temporary stay on a New York State trial court decision—a first stage of litigation at which the Supreme Court seldom gets involved.

The trial court issued a “non-final order” June 14 that the university’s loose association with Judaism did not qualify it as a religious institution that is already exempt from the law. The trial court then held that the university did violate the non-discrimination law when it refused to allow a student LGBTQ group to meet on campus.

Yeshiva University first said it would appeal the state trial court decision to the next level of state court; but, last month, it abruptly filed an emergency motion with the U.S. Supreme Court. Justice Sonia Sotomayor, who handles such requests for New York, referred the matter to the full court. The majority did not issue an opinion with its order; it simply indicated the university still had “at least two further avenues for expedited or interim state court relief.” So, for now, the discrimination law prevails and Roberts and Kavanaugh were on the LGBTQ side of that.

Justice Samuel Alito wrote a dissent to the majority’s order, joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett. The dissent relies on the university’s claim that it is a religious institution, even though it is incorporated as an educational institution and “has no religious rules of governance or stated religious affiliation in its corporate charter,” according to attorneys for the student group. Rather than focus on the issue of whether a student group should have access, the dissent claims that the case is about whether the law can “force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school” disagrees with. Tossing aside a longstanding tradition of not speculating how they might rule on a case that might come before them at a later date, the dissenting justices announce that “Yeshiva would likely win if its case came before us.”

The identification of the dissenters meant that the other justices—Roberts, Sotomayor, Kavanaugh, and Justices Elena Kagan and newly minted Justice Ketanji Brown Jackson—were in the majority.

Yeshiva is being represented by the conservative legal activist group known as the Beckett Fund for Religious Liberty. The Beckett Fund filed a lawsuit for Catholic Social Services against Philadelphia when that city ended its foster care contract with CSS because CSS had a policy that violated the city law against discrimination based on sexual orientation. In 2021, the Supreme Court ruled that the city had a “weighty” interest in eliminating discrimination based on sexual orientation, but that the facts of the Fulton v. Philadelphia case could “not justify denying [CSS] an exception for its religious exercise.” In that decision, Justice Roberts and Kavanaugh also joined three liberal-leaning justices, as did Justice Amy Coney Barrett.

View Details

In a ruling that one legal activist said will put LGBT rights “on the chopping block,” the U.S. Supreme Court today (June 24) ruled 6 to 3 that the U.S. Constitution “does not prohibit” states from banning abortion.

A concurring opinion from Justice Clarence Thomas underscores that alarm for LGBT people. In it, Thomas urges the court to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Lawrence struck down state bans against same-sex sexual relations;Obergefell struck state bans against marriage for same-sex couples; and Griswold struck bans against couples using contraceptive.

“As Justice Thomas’s concurrence makes clear, we must face the reality that the precedents that have transformed the place of LGBTQ people in our society are now in the crosshairs of this reactionary Court, which has no regard for precedent and no commitment to protecting civil liberties,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “We are on notice that our rights are on the chopping block, and we should not waste a moment in mobilizing political support. If we cannot rely on the Supreme Court, we must turn to our local, state, and federal representatives to secure fundamental freedoms through legislation. We are witnessing a full-scale assault on the rights of women and LGBTQ people, and the moment to act is now.”

The 6 to 3 decision came in Dobbs v. Jackson, a case in which an abortion clinic challenged a new law in Mississippi that banned abortion at any time after 15 weeks, unless there is a medical emergency or severe fetal abnormality.

In language that is overtly dismissive of concern for how the decision will impact other rights, Justice Samuel Alito, writing for the majority, says that these considerations are “too much” and lack “any serious discussion.”

“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much,” wrote Alito, who was joined on the majority opinion by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts did not sign onto Alito’s decision but issued his own opinion, concurring in the judgment.

Alito does little to quell concern that the decision will impact these other rights.

He says the majority has “stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” adding that abortion involves taking a “potential life,” while the decisions in the other cases do not. But then he adds this:

“Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence,” said Alito. Given that the Dobbs decision analysis of stare decisis (respect for precedent) overturns the 50-year-old Roe v. Wade decision, this reassurance falls empty. Obergefell v. Hodges, striking state bans on same-sex marriage, was issued only seven years ago. Lawrence v. Texas, striking state bans on consensual sex between same-sex adults, was issued only 19 years ago.

Adding to that concern, Justice Thomas’ concurring opinion (see page 3) urges the court “reconsider all of this Court’s substantive due process precedents,” including Griswold, Lawrence, and Obergefell. He states that the court has “a duty to ‘correct the error’ established in those precedents….”

Generally, judges and justices are expected to keep pre-conceived ideas of how a case might be decided to themselves. But Justice Brett Kavanaugh appears to abandon that protocol, too. In his concurring opinion, he includes a footnote (page 8) that says Obergefell “overruled” Baker v. Nelson.

“Much of American society was built around the traditional view of marriage that was upheld in Baker v. Nelson, and that was reflected in laws ranging from tax laws to estate laws to family laws. In Obergefell v. Hodges, the Court nonetheless overruled Baker.

“This is the most shockingly activist Court we have seen in any of our lifetimes,” said Jenny Pizer, senior legal counsel for Lambda Legal. “The arrogantly selective reading of history and disdain for generations of jurisprudence would be bizarre if it weren’t so terrifying.”

The court did not “overrule” Baker v. Nelson. In Baker v. Nelson, a 1972 appeal, the Supreme Court did not issue an opinion. It summarily dismissed a gay couple’s appeal to recognize same-sex marriage.

In the majority opinion June 24 in Dobbs, the court does overturn two major precedents: Roe v. Wadeand Planned Parenthood v. Casey. Roe v. Wade, in 1973, said the Constitution implies that citizens have a right to privacy and liberty and that those rights cover the right to choose an abortion. Planned Parenthood v.Casey, in 1992, said states could regulate abortion once a fetus becomes viable as long as the regulations did not create an undue burden to women who seek an abortion.

In his opinion concurring in the judgment of the majority, Chief Justice John Roberts says he sees “no sound basis for questioning the adequacy” of 15 weeks for a woman to obtain an abortion. He chose not to sign onto Alito’s opinion apparently because, as he said, “its dramatic and consequential ruling is unnecessary to decide the case before us.”

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases,” writes Roberts. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”

“Seeing this carte blanche invitation to legislatures to eliminate the freedom to make one’s own decisions about one’s own body and life, especially following yesterday’s absurd decision elevating gun rights over public safety,” said Lambda’s Pizer, “offers a picture of American society potentially transformed in a horrifying direction.”

View Details

Alito does little to quell concern that the decision will impact these other rights.

View Details

In an unprecedented development, a purported draft of what is believed to be the U.S. Supreme Court’s upcoming ruling on abortion indicates not only that the court is poised to overturn its long-standing decisions protecting the right to abortion but that it is also laying the groundwork to overturn landmark pro-LGBT decisions.

“LGBTQ people should recognize that we are once again in the crosshairs and that all of our hard-won protections are under serious threat,” said Shannon Minter, legal director for the National Center for Lesbian Rights.

“If this really is the judgment of a majority of the Supreme Court,” said Jenny Pizer, law and policy director for Lambda Legal, “we have entered an era of arrogant judicial activism unlike anything this country has seen for a hundred years.”

Nan Hunter, a veteran of many legal battles for LGBT equality, said the draft would almost certainly unleash “a rush by right wingers to get a challenge before the court” to overturn Obergefell v. Hodges, the 2015 decision which struck down state bans on marriage for same-sex couples.

The abortion decision draft, first reported by Politico.com Monday night, appears to be authentic. But it is dated February, leaving open the possibility that it is not finalized. At least five justices must sign onto the final decision to carry the majority. Votes on some decisions in the past have changed very late in the process. Justices have sometimes voted with a majority view at first, then later changed their vote after reading the majority’s proposed decision. Also in the past, attempts to report the outcome of cases before the decisions were released have turned out to be wrong.

But most legal analysts Monday night said they believe the draft released Monday is authentic and that its being leaked represents a dramatic departure from the court’s efforts to avoid being influenced by political pressure.

“We hold that Roe and Casey must be overruled,” states the draft decision in Dobbs v. Jackson, referring to Roe v Wade and Planned Parenthood v. Casey.

Roe, in 1973, said there is an implied right to privacy and liberty guaranteed by the Constitution that covers the right to choose an abortion. Casey, in 1992, said that states could regulate abortion once a fetus becomes viable as long as the regulations did not create an undue burden to women who seek an abortion.

In language especially troubling to LGBT legal activists, the draft opinion in Dobbs, apparently penned by Justice Samuel Alito, states, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” including the due process clause of the 14th Amendment. According to Alito, the only implicit rights the 14th Amendment due process clause protects must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

Alito’s draft says abortion is not one of those rights and, in language reminiscent of a 1986 decision that allowed states to ban same-sex sexual relations, he notes that three-fourths of states made abortion a crime when the 14th Amendment was adopted. The opinion further echoes the Bowers v. Hardwick decision when it notes that a right to abortion was “entirely unknown in American law” before the latter part of the 20th Century.

“If our due process rights to ‘ordered liberty’ are to be limited now to those rights respected by white male landowners wearing wigs and tri-cornered hats, the Constitution will fail utterly to do the job our founders intended it to do,” said Lambda’s Pizer. “And while it’s true that abortion is unique in some ways, its use as a political weapon to drive extreme-right voters is anything but, as state legislatures have proved again and again in recent times with frenzies of anti-LGBTQ bills.”

Alito’s draft also says that abortion is “critically different” and “fundamentally different” from some other rights that have been protected by the 14th Amendment– such as intimate sexual relations, contraception, and marriage—because abortion takes the life of an “unborn human being.”

But activists were not much comforted by that distinction.

Evan Wolfson, a gay legal activist who was a key player in the legal and political battle for marriage equality, said Alito “leans on the distinctiveness of abortion and doesn’t necessarily go further (though we know he would like to).”

Nan Hunter was more blunt: “Justice Alito badly wants to overrule Obergefell. What this opinion tells us is that he doesn’t have the votes to do so. If there were three other justices –beside him and Thomas– willing to end same-sex marriage, that would have been part of this decision.”

The apparent leaking of the draft decision has stirred almost as much controversy as the 98-page draft decision itself. The U.S. Supreme Court has a long-standing protocol of not signaling to the public how its decisions are developing. The assumed motivation behind this tradition is to prevent outside politics from putting pressure on the court’s legal analysis and reasoning. Some legal commentators Monday night were characterizing this leak as a blatant attempt to play politics with the final formulation of the court’s abortion opinion. But the pressure could have come from either side –from Alito, attempting to discourage any justice from abandoning his politically aggressive opinion, or from a pro-choice justice hoping public pressure would rattle any majority justice who was concerned about the far-reaching consequences of the opinion.

“That someone leaked this opinion–violating the court’s most sacrosanct rule of confidentiality–speaks volumes about how extreme and dangerous much of the court’s jurisprudence has become,” said NCLR’s Minter. “We don’t know if this will be the final decision, but it is shocking to read this assault on an established fundamental right.”

The case in question is Dobbs v. Jackson, in which an abortion clinic challenged a new law in Mississippi that banned abortion at any time after 15 weeks, unless there is a medical emergency or severe fetal abnormality. Most observers following the case and the court’s oral argument have predicted the Supreme Court majority would likely overturn Roe and Casey. But nearly everyone expected the decision to be released in late June, when the court typically releases its most controversial decisions.

During oral argument December 1, the court discussed the implications for this case on two major LGBT decisions: Lawrence v. Texas and Obergefell v. Hodges. Lawrence ruled that states could not ban sexual relations between same-sex couples; Obergefell ruled that states could not ban same-sex couples from marrying.

“A court that would issue an opinion like this–if it does–is a court that has abandoned any pretense of protecting individual freedom,” said NCLR’s Minter. “…We have become too accustomed to counting on the courts for protection, and we must realize the days when we could safely do so are past. Our hope lies in joining forces with others who are fighting to protect democracy and the rule of law and to prevent our country from sliding into the same authoritarianism that is rising across the globe.”

“Whether or not this draft makes it into a majority opinion, and whether or not it later gets invoked in assaults on other rights, it’s already a firebell in the night,” said Evan Wolfson. And he said it underscores “the importance of voting out the Republicans who have conspired, lied, and court-packed to get our country to this ugly, divisive, corrosive moment.”

“The cure,” said Wolfson, “is to vote in representatives who will defend Americans’ rights and our constitutional democracy itself.”

View Details

The primary issue before the U.S. Supreme Court Wednesday (December 1) was abortion, but a swirl of other critical questions drew the justices’ attention. Among those questions was how the court’s decision on abortion might affect its previous pro-LGBT decisions and the perception that the nation’s highest court is increasingly seen as being motivated by politics.

Such prominent LGBT decisions as Lawrence v. Texas (which struck down bans on sex between same-sex partners) and Obergefell v. Hodges (which struck down bans on marriage between same-sex partners) were part of the mix in the two-hour argument over a new Mississippi law that bans abortion after 15 weeks of pregnancy.

Numerous legal observers covering the argument in Dobbs v. Jackson said they believe the court’s conservative majority is poised to undercut Roe v. Wade and Casey v. Planned Parenthood. Roe (1973) and Casey (1992) are long-standing decisions that have upheld the right of women to have an abortion. Roe said there is an implied right to privacy and liberty guaranteed by the Constitution that covers the right to choose an abortion; Casey said that, once the fetus becomes viable, states could regulate abortion to further health and safety as long as those regulations did not create an undue burden to women who seek an abortion.

Supreme Court analysts from National Public Radio, Associated Press, the New York Times, Washington Post, and CNN (among others) all predicted the court would seriously undercut Roe and Casey.

One concern for LGBT activists is how damaging such a decision undermining such long-standing precedents might be to other Supreme Court precedents, such as Lawrence (2003) and Obergefell (2015). That concern was heightened by comments from Justices Amy Coney Barrett and Brett Kavanaugh. Barrett said that upholding previous decisions (known as “stare decisis”) is “not an inexorable command.” She pointed to the 2003 Lawrence decision overturning the 1986 Bowers v. Hardwick decision. Kavanaugh also pointed to Lawrence as an example of the Supreme Court overturning its previous decision on an issue. He mentioned Obergefell, too, though he did not identify what Supreme Court opinion he thought Obergefell overturned. (In 1972, the Supreme Court summarily dismissed a gay couple’s appeal to recognize same-sex marriage, in Baker v. Nelson.)

Sharon McGowan, legal director for Lambda Legal, said Lawrence and Obergefell “expanded individual liberty, not the opposite.”

The Lawrence and Obergefell decisions, she said, are ones “on which we rely today to protect our community’s civil rights,” adding that both “were built directly on the foundation of Casey and Roe.”

“They reflected the growing societal understanding of our common humanity and equality under law,” said McGowan. “Just as the Supreme Court in Brown v. Board of Education rejected the lie of ‘separate but equal,’ the Supreme Court’s decisions in Lawrence and Obergefell appropriately overruled precedent where it was clear that, as was true with regard to race, our ancestors failed properly to acknowledge that gender and sexual orientation must not be barriers to our ability to live, love, and thrive free of governmental oppression.”

Small middle with big implications

Most court observers predicted that three conservative justices–Clarence Thomas, Samuel Alito, and Brett Kavanaugh–seem almost certain to vote to uphold the Mississippi abortion ban. Barrett’s comment that precedent is “not an inexorable command” could be read that she is amenable to chopping down Roe and Casey. The three progressive justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—appear poised to vote against the Mississippi ban.

That leaves Chief Justice John Roberts and Justice Neil Gorsuch to cast the key votes. Both made comments suggesting they were open to a ruling that might reflect some middle ground. For instance, the Chief Justice wondered whether Mississippi’s regulation at 15 weeks was really different than Roe and Casey’s allowance of regulation at fetus viability.

Justice Sonia Sotomayor dramatically raised the issue of how undercutting Roe and Casey would likely undercut the reputation of the Supreme Court in the minds of the public. Noting that Mississippi acknowledged it brought its appeal because there are new conservative justices on the Supreme Court, Sotomayor said she did not see how the Court could “survive the stench that this creates in the public perception that the Constitution and its reading are just political acts.”

“If people actually believe that it’s all political, how will we survive?” asked Sotomayor, of Mississippi’s Solicitor General Scott Stewart. “How will the Court survive?”

When Stewart said the court just needed to ground its opinion “in the Constitution, in text, structure, history, and tradition,” Sotomayor retorted, “Casey did that.”

“In Casey and in Roe,” said Sotomayor, “the Court said there … are certain personal decisions that belong to individuals, and the states can’t intrude on them. We’ve recognized them in terms of the religion parents will teach their children. We’ve recognized it in their ability to educate at home if they choose.… We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry.”

A few minutes later, Justice Barrett asked the Mississippi solicitor general whether a decision in favor of the state ban would call into question any of the cases Justice Sotomayor had just identified. Stewart said “No,” adding that those cases, including Lawrence and Obergefell, were “safely out of reach” of the Mississippi abortion decision. He specifically added that, “you can’t ban intimate romantic relationships between consenting adults, can’t ban marriage of people of the same sex.”

Sotomayor said Stewart’s answer did not seem to make any sense and added that Mississippi’s new abortion ban amounted to a “religious view.”

“The issue of when life begins has been hotly debated by philosophers since the beginning of time,” said Sotomayor. “It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”

LGBT groups have long considered the right to an abortion to be one of “vital importance” to LGBT people. In briefs filed by parties with strong interest in the appeal, U.S. Senators Tammy Baldwin and Kyrsten Sinema, along with all nine LGBT House members, signed onto a brief urging the Supreme Court to strike down Mississippi’s ban. Two dozen LGBT groups —including Lambda Legal, GLAD, the National Center for Lesbian Rights, the Human Rights Campaign, Equality California, Equality North Carolina, LPAC, and longtime marriage equality activist Evan Wolfson— also filed a brief arguing against the Mississippi ban. The groups’ brief states that the Roe and Casey decisions, upholding the right of women to have an abortion, are of “vital importance” to sexual minority women, noting that federal statistics estimates one in 12 women between 18 and 44 is a sexual minority.

“Like denying marriage to same-sex couples or criminalizing same-sex relationships,” said the LGBT groups’ brief, bans on pre-viability abortions “deny women equal treatment under the law.”

View Details

Nine years after telling a gay couple she could not prepare a flower arrangement for their wedding because of her religious beliefs, the owner of a flower shop in Washington State has agreed to pay $5,000 to settle the dispute and withdraw her long-shot bid to get the U.S. Supreme Court to rule in her favor.

The issue, however, has not gone away. The Alliance Defending Freedom group that helped Arlene’s Flowers owner Barronelle Stutzman with her effort to circumvent the Washington State laws against discrimination based on sexual orientation have other cases queued up. One is in the U.S. Supreme Court; the other is likely to land there next year.

But the November 18 announcements by the Alliance Defending Freedom and the ACLU, which represented the gay couple, taken away a case that has lingered on the U.S. Supreme Court’s docket for four years. Neither side is touting victory.

While the florist has agreed to withdraw the latest of her several petitions from the U.S. Supreme Court, she has not agreed to stop discriminating. Instead, the 77-year-old businesswoman said she would retire and leave the business and let her “beloved employees” run the business.

The gay couple, Rob Ingersoll and Carl Freed, said they would contribute the $5,000 settlement money to a local PFLAG chapter and match it with a $5,000 contribution of their own.

But Stutzman’s statement made clear that she was concerned about losing. She said the lawsuits filed against her when she refused to serve the gay couple threatened to force her to “pay a devastating price” for asserting her religious beliefs in the marketplace, “including being threatened with the loss of my home, my business, and my life savings.”

The Alliance website indicates Stutzman ended the legal conflict between herself and the gay couple by agreeing to a settlement that enables her to avoid being forced “to act against her religious beliefs or to pay potentially ruinous attorneys’ fees….”

Stutzman’s legal defense was down to its very last shot: a petition asking the U.S. Supreme Court to “rehear” its refusal to accept Stutzman’s appeal of a Washington Supreme Court decision against her. In the past five years, more than 500 parties who have been denied review at the Supreme Court have filed such petitions for “rehearing;” only three were granted.

“At age 77, it’s time to retire and give my business to someone else,” said Stutzman. “So, I’ve paid $5,000 to Rob and am passing my legal torch on to other artists….”

Neither Stutzman nor the Alliance indicated how that business would proceed now. According to briefs filed in the case, Arlene’s Flowers is a “closely-owned family business.”

The ACLU’s statement about the settlement indicated Stutzman’s withdrawal of the petition for rehearing “leaves in place the two unanimous decisions from the Washington Supreme Court that the Constitution does not grant a license to discriminate against LGBTQ people.”

The legal conflict did not involve Washington State’s law recognizing the right of same-sex couples to marry. That law passed in 2012. Instead, it implicated the state law prohibiting discrimination based on sexual orientation in public accommodations. And it began when Rob Ingersoll and Carl Freed decided, in 2013, to marry. They had a long-standing and friendly relationship with Stutzman and Arlene’s Flowers, and Ingersoll asked her to create an arrangement for the ceremony. Stutzman told Ingersoll that her “relationship with Jesus Christ” prevented her from creating an arrangement for their wedding. She provided the names of three other florists she thought could provide the flowers.

The couple posted on Facebook about the hurt they felt. Similar incidents were cropping up around the country—wedding venues were refusing couples in Texas and New York; a wedding photographer refused a lesbian couple in New Mexico; and bakeries turned down same-sex wedding events in Oregon and Colorado.

The news media picked up on the dispute and brought it to the attention of the state’s Attorney General, Bob Ferguson (who is still in office). Ferguson’s office filed suit against Arlene’s Flowers for violating the state’s public accommodation law. Shortly thereafter, the ACLU filed suit on behalf of the gay couple. The ACLU civil suit asked Stutzman to serve all customers regardless of sexual orientation, issue an apology for refusing Ingersoll and Freed, and contribute $5,000 to a local LGBT youth group.

A state superior court judge in 2015 ruled against Stutzman, saying that the U.S. Supreme Court had for 135 years ruled, “laws may prohibit religiously motivated action, as opposed to belief.”

“In trade and commerce,” said the judge, “and more particularly when seeking to prevent discrimination in public accommodations, the courts have confirmed the power of the legislative branch to prohibit conduct it deems discriminatory, even where the motivation for that conduct is grounded in religious belief.”

The Washington Supreme Court upheld that ruling; the Alliance appealed the case to the U.S. Supreme Court; and, in 2018, the Supreme Court remanded the case to the Washington Supreme Court with instructions to give “further consideration” to the case in light of the U.S. Supreme Court’s decision in Masterpiece Cakeshop v. Colorado.

In Masterpiece Cakeshop, in June 2018, the Supreme Court voted 7 to 2 Monday in favor of a Colorado baker who refused to sell wedding cakes to same-sex couples the same as he sells to male-female couples. The Masterpiece decision did not say a baker had a right to refuse to sell a cake to a same-sex couple by citing his religious beliefs. It said only that the Colorado Civil Rights Commission, in initially ruling against the baker, had demonstrated “clear and impermissible hostility toward the sincere religious beliefs” of the baker.

The Washington Supreme Court reconsidered the Arlene’s Flowers case and, in 2019, said it found that the courts which deliberated on the issue “did not act with religious animus” when they ruled the florist violated a state law by refusing to sell flowers to a gay couple. Among other things, the court also noted that Stutzman had “acknowledged that selling flowers for an atheistic or Muslim wedding would not be tantamount to endorsing those systems of belief.”

The Alliance again appealed the case to the U.S. Supreme Court and was this past July again denied review. This time around, though, three justices indicated they would have taken the case. The Alliance then filed the long-shot request for a rehearing of the second rejected petition for review. That rehearing request has been on the Supreme Court’s conference list since September, including –most recently— for November 19. A request by both sides to dismiss the rehearing request was filed November 18, indicating only that “All fees have bee paid, and each party will bear its own costs.”

Meanwhile, the Alliance has another similar appeal before the U.S. Supreme Court, 303 Creative v. Elenis, involving a website designer in Colorado. The state’s response to that appeal is due to the Supreme Court in early December. The Alliance has organized several similar lawsuits around the country, including the Masterpiece case and one in 2013 involving a wedding photographer (which the Supreme Court declined to review).

View Details

President Biden on Wednesday nominated a second lesbian to serve on the Second Circuit U.S. Court of Appeals.

The U.S. Senate on November 1 confirmed Biden’s first lesbian nominee to the Second Circuit: Beth Robinson of Vermont. The Second Circuit includes Vermont, New York, and Connecticut. That confirmation marked the first time an openly LGBT woman had been appointed to a federal appeals circuit seat.

On November 17, the Biden administration announced the president is nominating current U.S. District Court Judge Alison Nathan, who has served 10 years in the Southern District of New York, to the Second Circuit.

Nathan was an associate counsel to President Obama and then special counsel to New York State Solicitor General Barbara Underwood. President Obama named her, in 2011, the federal district court in Manhattan. The Senate vote in 2011 was 48 to 44, and several of the Republicans who opposed her then are still prominent in the Senate. Among them is Senator Charles Grassley (R-Iowa) who said Nathan was too inexperienced (she was 39 at the time).

A native of Philadelphia, Nathan attended Cornell University for both her bachelor’s and law degree. She clerked at the Ninth Circuit and for U.S. Supreme Court Justice John Paul Stevens. She entered private practice with the large corporate law firm of Wilmer, Cutler, Pickering, Hale and Dorr. In 2004, she served on the campaign of then Democratic presidential nominee John Kerry.

According to the New York Times, Nathan has been presiding over the trial of sexual predator Jeffrey Epstein’s associate, Ghislaine Maxwell, on sex trafficking charges. Reuters reported that the trial requires Nathan to question more than 200 prospective jurors.

Nathan is married to a New York University Law School professor, Meg Satterthwaite, and they have two children. U.S. Senator Charles Schumer (D-NY) recommended Nathan for the nomination.

Robinson, who is expected to be sworn in soon, was confirmed by the U.S. Senate on a 51 to 45 vote. Although there was no floor debate, Republican senators posed a long series of challenging questions to the nominee through behind-the-scenes questionnaires. Among other things, they asked Robinson, “How many biological sexes do you believe there are?” and “Do you think it is appropriate for an individual to threaten a six-year-old girl with a box cutter by telling her that he would kill her in her sleep?” In Robinson’s televised confirmation hearing, Republicans claimed the nominee exhibited “marked hostility toward religious liberty,” although they offered no evidence of such hostility.

View Details

It was a hard night for Democrats Tuesday, as candidates for governor in two heavily Democratic states lost enormous support—and one of the two seats—to Republicans.LGBT candidates scored some milestones, but the community found itself back in the crosshairs of a culture war.

An LGBT candidate was the top vote getter in one Atlanta City Council race, positioning herself to become the first Muslim to win election in Georgia. Another LGBT person became the first black LGBT person to win election in the state of Montana, winning a seat on the Bozeman city commission. The first transgender candidate won election in Ohio, to a local school board. And, the first openly LGBT woman won election to the Detroit City Council.

The LGBTQ Victory Fund, a national group which promotes and supports campaigns of openly LGBTQ candidates, said it was tracking at least 242 openly LGBT candidates on the November 2 ballot. Although not all the races it was tracking had reported in by Wednesday morning, it reported that, so far, 59 had won, 50 had lost, and 22 had advanced to run-offs.

There were more than 80 openly LGBT candidates for city and town council seats Tuesday night, plus 11 openly LGBT candidates for mayor. Only nine LGBT candidates ran for state house seats and only one for state senate. There were also at least seven LGBT candidates for various local court seats, at leave five other races for miscellaneous posts, such as town auditor, and at least 10 LGBT candidates running for school board seats.

Big fights in little races

Local school boards have in recent weeks become the focus of much attention. They appear to have become part of a political strategy favored by conservative Republicans to stir up controversies over LGBT books, abortions, and anti-racism curricula. Republican candidates in larger races then use those controversies to pull in moderate voters.

Virginia’s Republican gubernatorial contender, first-time candidate Glenn Youngkin, laser-focused in on “parents” in the final weeks of his successful campaign. He was able to play on stories circulating in the more Democratic northern parts of the state—stories of alleged gay pornography books in public school libraries and alleged sexual assaults by a transgender student. He promised parents he would make sure they were part of the decision-making process for local school curricula.

The Democratic gubernatorial candidate, former Governor Terry McAuliffe, was drawn into the transgender assault report when, during a September debate, a moderator noted that McAuliffe had had expressed agreement with the state’s policies in support of transgender students and the right of local governments to make their own policies. McAuliffe tried to walk a careful line, saying he likes allowing local governments to have input but that “the state will always issue guidance as we do from the Department of Education.”

Youngkin, who was widely praised for running a campaign that kept former President Trump at a studied distance, also walked a narrow political line when asked about the transgender story. He said “we are called on to love everyone” and that not only should local districts make such decisions, but parents should be included in dialogue about such policies, including what books are included in libraries.

The bottom line of that controversy and similar ones, noted one commentator Wednesday morning on CNN, was that “it reminds voters that Democrats are too liberal.”

McAuliffe has a strong record of supporting equal rights for LGBT people and released a “Bold Plan to Advance LGBTQ+ Rights.” In his first term as governor, McAuliffe, in 2017, vetoed a bill seeking to give state-funded charities the right to refuse services to LGBT people.

Youngkin, a first-time candidate, said on the campaign trail that he does not personally support same-sex marriage but that, as governor, he would support the fact that same-sex marriage is “acceptable in Virginia.”

The Human Rights Campaign endorsed McAuliffe; the Log Cabin Republican group endorsed Youngkin.

Log Cabin issued a statement saying Youngkin has “has demonstrated his desire to listen to and work with the LGBT community.”

In New Jersey, incumbent Democratic Governor Phil Murray, who earned the endorsement of Garden State Equality, faced Republican State Assemblymember Jack Ciattarelli, who has alienated many with hostile remarks about LGBT people. Like the Republican gubernatorial candidate in Virginia, Ciattarelli sought to stoke controversy over LGBT issues in public schools, saying “we’re not teaching sodomy in sixth grade.” Specifically, he vowed to undo efforts to make public school curricula more inclusive of LGBT history. And we’re going to roll back the LGBTQ curriculum.” It wasn’t until Wednesday night that some media called the New Jersey race for the Democrat.

LGBT race highlights

Among the highlights of Tuesday’s races involving openly LGBT candidates were:

While the results of the 10 school board races were mostly still unreported at deadline, in a small district in the middle of Ohio, candidate Dion Manley scored the first victory for a transgender candidate for office in the Buckeye State. “Dion shattered a lavender ceiling in Ohio,” said Victory Fund President Annise Parker. She said Manley’s victory “especially significant given efforts by anti-trans activists across the nation to target trans students at school board meetings.”
In Virginia, transgender State House Delegate Danica Roem, who made history in 2017 as the first out transgender person to win and serve in a state legislature and the only out transgender state legislator in the U.S., won re-election to a third term. But Roem, who represents part of northern Virginia, defeated her Republican opponent by less than two points, a much smaller margin than in 2019.
Liliana Bakhtiari was the top vote getter for her Atlanta City Council race, putting her in a strong position to become the first openly LGBT Muslim to win election in Georgia. Bakhtiari just barely missed the 50 percent mark, forcing herself into a run-off. The second place vote getter was 30 points behind. Although two other openly LGBT candidates lost their bids for the Council, voters elected openly gay Alex Wan to return a seat he previously held.
All six openly LGBT candidates for the New York City Council won, including Crystal Hudson and Kristin Richardson Jordan, the first two black LGBT women to be elected to the 50-member body. Two of the six had uncontested general election races, but all six were first-time candidates for their seats.
In Minneapolis, Sheila Nezhad, a former policy analyst for the Williams Institute, came in third in a field of 18 candidates trying to unseat the incumbent mayor. As of Wednesday afternoon, the mayor had enough votes to retain the office.
In Buffalo, New York, India Walton, who identifies as queer, was not able to parlay her stunning primary win of the Democratic nomination into victory in the general election. The incumbent Democratic mayor mounted an aggressive write-in campaign that overwhelmed Walton, a first-time candidate. Local news analysts suggested Walton was “the most progressive of the progressives.”
In Atlanta, with a field of more than a dozen candidates for mayor, current openly gay city council member Antonio Brown came in fifth, with only two percent of the vote. The Atlanta Journal Constitution noted that Brown had been saddled with an indictment, charging that he had engaged in bank fraud. He denies the charges but is scheduled for trial next year. Brown was the only openly LGBT mayoral candidate not to earn Victory Fund support in Tuesday’s election.
And in Bozeman, Montana, Christopher Coburn won election to the City Commission, becoming the first openly LGBT black person to be elected in the state. Coburn assumed the seat in April, after the previous occupant resigned. “The truth is that I’m from Montana, so I have been the first queer Black person to do a lot of things in my life,” Coburn told a local NBC affiliate. “That’s just sort of what happens when you’re someone like me who’s from Montana….”

View Details

It was a narrow escape, but the U.S. Supreme Court on Monday gave LGBT legal activists a significant sigh of relief in a case involving transgender access to equality in health care. The court also appeared to take some heed of the fact that a Texas abortion ban under scrutiny could have significant implications for same-sex marriage.

The court announced November 1 that it would not take up an appeal seeking to challenge a lower court decision that favored a transgender patient. The lower court had allowed to proceed a lawsuit the patient had filed against a Catholic-run hospital that refused to perform a hysterectomy as part of the patient’s transition from female to male.

The Supreme Court’s vote was close: Three justices indicated they would have accepted the Catholic hospital’s appeal. It takes only four justices to grant an appeal.

The dissenting justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—did not explain their dissent, as they sometimes do.

The decision under challenge, Dignity Health v. Minton, came from a California appeals court in San Francisco on an important, but preliminary, legal matter. After the state supreme court refused review on the preliminary matter, the hospital chain, along with such groups as Alliance Defending Freedom, appealed directly to the U.S. Supreme Court. It was a long-shot appeal, because of the preliminary nature of the lower court ruling.

The case involved a chain of hospitals (Dignity Health) that includes both Catholic-run and non-Catholic-run facilities near Sacramento. It was a Catholic-run hospital that abruptly canceled the scheduled hysterectomy for a female-to-male transgender person, claiming that to do so would violate the “religious directives that govern Catholic health care institutions.”

The individual dispute was quickly resolved when Dignity Health arranged for the surgery to take place at one of its non-Catholic affiliates. But the transgender man, Evan Minton, represented by the ACLU, filed suit, alleging that Dignity Health’s actions violated the state’s non-discrimination law, specifically its prohibition on sex discrimination and gender identity discrimination. The California intermediate court of appeal ruled that the lawsuit could proceed on the question of whether the hospital chain violated state law when it denied Minton “full and equal access” to treatment at the original hospital.

In its petition to the U.S. Supreme Court, the Dignity Health chain claimed that the U.S. Constitution’s guarantee of free exercise of religion protects a religiously affiliated hospital from being compelled to provide medical procedures that violate the religion’s tenets.

Dignity Health’s petition said the case posed “a profound threat to faith-based health care institutions’ ability to advance their healing ministries consistent with the teachings of their faith.” It said the Catholic Church prohibits “sterilization.”

‘This is not limited to abortion’

In much more highly publicized action Monday, the U.S. Supreme Court heard oral arguments in two appeals concerning Texas’ recently enacted law banning most abortions. U.S. Solicitor General Elizabeth Prelogar said Texas was “attempting to thwart the supremacy of federal law” when it “enacted a law that clearly violates” the Supreme Court’s ruling in Roe v. Wade and Planned Parenthood v. Casey.

“If Texas can nullify Roe and Casey in this manner, then other states could do the same with other constitutional rights or other decisions of this court that they disfavor,” said Prelogar.

The Texas law in question (known as S.B. 8) is one that makes it illegal to obtain an abortion after six weeks of pregnancy. The law also allows any citizen to file suit against anyone who violates the ban or helps someone else violate the law and promises the court will award such citizens a minimum of $10,000 per successful lawsuit. The law further notes that Texas “never repealed” its ban on abortion subsequent to the 1973 Roe v. Wade ruling by the U.S. Supreme Court.

That text and Prelogar’s warning have special resonance for LGBT people: Just last month, a state representative in Texas noted that the state’s laws limiting marriage to one man-one woman were never amended or repeal. And he suggested the state essentially ignore the Supreme Court’s ruling in Obergefell v. Hodges, which struck down state bans on same-sex marriage.

Justice Sonia Sotomayor asked an attorney representing Texas in court Monday whether Texas could enforce an “S.B. 8-style liability on anyone who officiates, aids, or abets a same-sex wedding” or seeks to stop private consensual sexual conduct, protected under the Supreme Court’s ruling in Lawrence v. Texas.

“This is not limited to abortion,” said Sotomayor.

Justice Brett Kavanaugh asked questions suggesting that an S.B. 8-style law might also be used by citizens who want to go after “anyone who declines a good or service for use in a same-sex marriage….”

As an initial matter, the Supreme Court is expected first to rule on whether or not to grant the U.S. Department of Justice’s request for an injunction barring continued enforcement of S.B. 8, which took effect in September. The court is later expected to rule on the constitutionality of the Texas ban.

In a brief submitted by attorneys general of 22 states, including California, Illinois, Michigan, and New Jersey, lesbian Attorney General Maura Healey of Massachusetts warned that the court’s decisions concerning the Texas ban will have “profound consequences.”

The brief noted that the attorneys general “recognize that state legislatures across the country have strongly held policy preferences in areas as diverse as gun rights, freedom of religion, marriage equality, and voting rights that may at times be in tension with, or even conflict with, constitutional principles.” But it added that, “We likewise recognize the vital role that judicial review plays in resolving these tensions. But, where longstanding precedent clearly and unambiguously forecloses a particular policy as unconstitutional, a State cannot be permitted to disregard that precedent by passing an unconstitutional law and shielding it from federal judicial review.”

View Details

The U.S. Senate tonight (November 1) confirmed the appointment of the first openly LGBT woman for a seat on a federal appeals circuit bench.

Monday’s roll call vote, 51 to 45, came with no debate on the Senate floor, but followed an unusually crass interrogation of the nominee, Beth Robinson, on paper. After challenging Robinson in the publicly broadcast confirmation hearing last month, Republicans posed a sometimes bizarre series of questions through behind-the-scenes Senate questionnaires. Among other things, Republicans asked Robinson: “How many biological sexes do you believe there are?” and “Do you think it is appropriate for an individual to threaten a six-year-old girl with a box cutter by telling her that he would kill her in her sleep?” One senator named two dozen landmark U.S. Supreme Court decisions —from Marbury v. Madison in 1803 (which established the court’s authority to review the constitutionality of laws) to Brown v. Board (ending segregation), Loving v. Virginia (ending bans on interracial marriage), and nearly every pro-LGBT decision issued since 1997 and asked whether each was “correctly decided.”

Republican senators used the televised confirmation hearing September 14 to assert claims that Robinson showed “marked hostility toward religious liberty,” ask whether she “ever represented a terrorist at Guantanamo Bay,” and insinuate that she would be attempting to “drive broader social change” on the court.

Nominee Beth Robinson, a justice of the Vermont Supreme Court, answered each question and, the Senate confirmed her appointment to the Second Circuit U.S. Court of Appeals. The vote makes Robinson the first openly LGBT woman to be confirmed to a federal circuit appeals court seat.

President Biden appointed Robinson in August to the Second Circuit, which covers Vermont, New York, and Connecticut.

Robinson has been serving on the Vermont Supreme Court since 2012. Prior to that, she was involved in several prominent legal challenges seeking equal marriage rights for same-sex couples. She played a key role in the litigation that won the nation’s first civil union designation, in Vermont in 2000. She later served as chief legal counsel to then Vermont Governor Pete Shumlin, who nominated her to Vermont’s highest bench.

During the confirmation hearing, Republicans on the Senate Judiciary Committee lined up against Robinson, saying that, early in her career as an attorney, she had demonstrated hostility toward religious liberty. Senator Ted Cruz (R-Texas) accused Robinson of “marked hostility toward religious liberty.” His evidence was her work as a private attorney representing a client who sued a Vermont printer for refusing to print flyers for the client’s Catholic pro-choice group. Cruz said Robinson sought to “force” the printer to print “membership cards for a pro-abortion group.”

Robinson pointed out that the case to which he was referring was one in which she was representing a client who was herself suing over discrimination based on her religion.

“My client was a Catholic,” replied Robinson. “She was [at the printer’s] to get flyers for Catholics for Choice printed. She was deeply offended by the suggestion [by the printer] that she wasn’t a true Catholic and that was the reason why the printer wouldn’t print [the client’s] materials.” The case settled before any court ruled on the merits of the issue, recalled Robinson.

In his written questionnaire to Robinson, Cruz asked, “How many biological sexes do you believe there are?” Robinson declined to respond, noting, as most nominees nowadays to, that the issue was likely to come before her in court.

Senator Josh Hawley (R-Missouri) also attacked Robinson over the printer case, during the public hearing. On his written questionnaire to Robinson, Hawley also asked “How many sexes and genders do you believe there are?” and “Do you think it is appropriate for an individual to threaten a six-year-old girl with a box cutter by telling her that he would kill her in her sleep?” Robinson, of course, said no and explained her dissent in a case in which the court had to decide whether a box cutter constituted a “deadly weapon” in a particular circumstance.

Cruz and Hawley have been criticized harshly in recent months for fanning the flames of insurrection around the January 6 attack on Congress. Their harsh questioning of Robinson—and other Biden nominees—could have been motivated in part by an effort to deflect attention away from their culpability in attempting to interfere with the certification of the 2020 presidential vote. It might also be a symptom of the ever-increasing partisan battles in Congress, attempting to derail the other party’s judicial nominee by whatever means necessary.

Robinson, 56, graduated from Dartmouth College and the University of Chicago Law School before beginning private practice in Middlebury and Burlington, Vermont, with the law firm of Langrock Sperry & Wool, focusing on family and employment law. Gay & Lesbian Advocates & Defenders (GLAD) presented her with its 2009 Spirit of Justice Award for her work in promoting passage of Vermont’s marriage equality law in 2009. She is married to medical doctor Kim Boyman.

View Details

First in the spotlight as the U.S. Supreme Court begins its new session Monday (October 4) is the seemingly precarious state of the right to abortion, an issue LGBT groups have long considered to be of “vital importance” to LGBT people. But there are also several LGBT-related cases petitioning for review and several other cases that involve LGBT issues in some way. Add to this two important off-the-docket concerns: One is the growing anxiety over when 83-year-old liberal Justice Stephen Breyer might vacate his seat; and the other is the unusual step by conservative Justice Samuel Alito to defend publicly the court’s conservative majority increasing use of preliminary procedures to shore up conservative positions on highly controversial issues.

Most discussions of the court’s new session are focused on abortion cases. The Supreme Court will hear oral arguments in December about the constitutionality of a new Mississippi law that bans abortion after the 15th week of pregnancy. In that case, Dobbs v. Jackson, U.S. Senators Tammy Baldwin and Kyrsten Sinema, along with all nine LGBT House members, signed onto a brief urging the Supreme Court to overturn Mississippi’s ban. Two dozen LGBT groups —including Lambda Legal, GLAD, the National Center for Lesbian Rights, the Human Rights Campaign, Equality California, Equality North Carolina, LPAC, and longtime marriage equality activist Evan Wolfson— also filed a brief arguing against the Mississippi ban. The groups’ brief states that the Roe v. Wade and Planned Parenthood v Casey decisions, upholding the right of women to have an abortion, are of “vital importance” to sexual minority women, adding that federal statistics estimates one in 12 women between 18 and 44 is a sexual minority.

“Overruling Roe and Casey would have catastrophic effects on sexual minority women,” states the groups’ brief. It notes that, “Lesbian, bisexual, and other non-heterosexual women are at least as likely as other women to experience unintended pregnancies and to require abortion care. Sexual minority women are more likely to experience unintended pregnancies as a result of sexual violence….”

In a separate appeal involving an even more restrictive state abortion ban, in Texas, the LGBTQ legal group GLAD issued a press release, criticizing the Supreme Court’s vote in September to deny an injunction to stop the law from taking effect until the court could rule on its constitutionality. GLAD said allowing the Texas ban on abortion to go into effect would “hurt women, LGBTQ people, and families….”

“Safe, accessible reproductive healthcare – including abortion care – is a matter of racial, economic, and gender justice,” said GLAD, “and we must all be in the fight to repeal or reverse this ban and stop the erosion of the constitutionally protected human right to reproductive choice.”

Steady wave of appeals

The Alliance Defending Freedom, a law firm dedicated primarily to undermining laws prohibiting discrimination against LGBT people, has, so far this session, asked the Supreme Court to review five cases in which people are seeking the right to discriminate against LGBT people by claiming a free exercise right to do so. The court could announce any day now whether it will take up these cases:

• Seattle’s Union Gospel v. Woods –Seattle’s Union of Gospel Mission, an evangelical group that provides food, shelter, and religious guidance to people in need, asks the high court to affirm a part of the Washington Law Against Discrimination (WLAD) that allows “any” non-profit religious organization an exemption to the law’s prohibition on sexual orientation discrimination in employment. The Mission appealed to the U.S. Supreme Court after the Washington Supreme Court ruled in March that the exemption was unconstitutional as applied to one gay man who applied for a job at the Mission, after first serving there as a volunteer.

• Gordon College v. DeWeese-Boyd—This appeal brings a question similar to that in Seattle’s Union Gospel case. Gordon College, a private Christian missionary school in Massachusetts, was sued by one of its associate professors after the college refused her a full professorship. The school claimed the teacher failed to subscribe to its statement of religious faith; the teacher said it was because she criticized the school’s policies on LGBT people and same-sex marriage.

• Dignity Health v. Minton—In this case, a Catholic-run hospital in California refused to perform a hysterectomy for a female-to-male transgender patient. The hospital said that to do so would violate the ethical and religious directives that govern Catholic health care institutions. The patient sued, saying the hospital’s refusal violated the state’s human rights law. So far, the patient has won, but the case has gone only as far as an intermediate state appeals court. The appeal has been on the U.S. Supreme Court’s conference list for more than a year.

• Arlene’s Flowers v. Washington – This case has been at the Supreme Court since 2018 and involves a florist who refuses to sell wedding arrangements to same-sex couples, claiming a religious belief necessitates the discrimination. The Washington Supreme Court has ruled against the florist twice, and her petition to the U.S. Supreme Court was rejected in July this year. The Alliance has asked the Supreme Court to rehear that appeal, saying it is very similar to another case arriving at the court from Colorado (see below).

• 303 Creative v. Elenis –This is a variation on the Masterpiece Cakeshop case. In this case, a graphic artist who creates websites for couples getting married, refused to create one for a same-sex couple, claiming it was against her religious beliefs. The couple sued, saying the artist violated a state law prohibiting discrimination in public accommodations; the artist appealed and the 10th Circuit U.S. Court of Appeals ruled against her. On appeal to the U.S. Supreme Court, the Alliance argues that Colorado’s law violates the artist’s right to free exercise of her religious beliefs.

Other cases of LGBT interest

In other cases of interest to the LGBT community, the Supreme Court announced on September 30 that it would review a lower court decision in Shurtleff v. Boston, from the First Circuit U.S. Court of Appeals. That court held that the City of Boston’s right to allow some groups, but not a Christian civic group, to raise their flag over City Hall was a legal exercise of “government speech.”

According to Liberty Counsel, a legal group promoting religious liberty, Boston allows secular flags, including the LGBT Pride flag, to fly over City Hall but won’t allow a “religious flag.” The city said its policy is “consistent with the well-established First Amendment jurisprudence” against the “establishment of religion.” Liberty Counsel, representing Harold Shurtleff whose camp sought to raise a flag prominently displaying a white Christian cross, says the city’s action violates the First Amendment.

The court has scheduled for argument December 8 Carson v. Makin, which is not an LGBT-related case but is yet another case in which religious entities are seeking special dispensation under ordinary law. It’s also a case that echoes the arguments religious entities have been making to avoid complying with non-discrimination laws: that the religious person isn’t discriminating against a gay person, but discriminating against a person because his or her partner is of the same-sex.

In Carson, the parents of five children in Maine are fighting a state policy of providing public funding for parents to send their children to private schools that are willing to provide “nonsectarian education.” Maine does not provide funding for parents to send their children to schools providing religious education. The First Circuit U.S. Court of Appeals said Maine could withhold funding to sectarian schools because the exclusion was not based on any school’s religious affiliation but on “on what the school teaches through its curriculum and related activities, and how the material is presented.”

View Details

Hundreds, perhaps thousands, of LGBT Afghan citizens, who dared to take modest steps toward living openly when their country was under the occupation and influence of a more tolerant “western culture,” are now literally hiding in closets, ditches, and abandoned houses to avoid summary execution by Afghanistan’s new governing force, the Taliban.

That’s what Nemat Sadat, an Afghan-born gay activist and American citizen, said this week about the plight of LGBT people in his homeland.

His concerns were largely echoed in news reports from a wide range of independent media and organizations.

The State Department issued a statement September 2, saying that, while the U.S. has withdrawn all U.S. personnel from Kabul, it would use “every diplomatic, economic, political, and assistance tool at our disposal to uphold the basic rights of all Afghans.”

But the potential for gaining U.S. help appears bleak because, in order to apply for asylum, an Afghan must first get out of Afghanistan.

On a special U.S. State Department web page entitled “Afghanistan Inquiries,” the State Department says, “Individuals who believe they are being persecuted or who fear persecution in their own country and have managed to flee to another country should follow procedures to seek asylum with local/national authorities. Such individuals can also seek assistance from the United Nations High Commissioner for Refugees (UNHCR). UNHCR’s immediate focus is to ensure that Afghans who are seeking safety can reach it, including across borders and into neighboring countries if needed and that they can receive assistance to meet basic needs.”

The United Nations Security Council on August 30 passed a brief resolution, urging the Taliban to “adhere to” its commitments to allow Afghans to “leave Afghanistan anytime…with no one preventing them from traveling….”

But Twitter posts from various LGBT Afghans in the past several days indicate as many as 350 LGBT Afghans have sought evacuation from the country, for fear of being executed by the Taliban and “none have been airlifted out.”

Sadat has created a has created a petition on change.org to ask the U.S. government to “assist in the safe passage of LGBTQIA people who need to flee Afghanistan and seek refuge by providing humanitarian visas that allow them to leave the country.” As of Saturday night, it had 335 signatures.

In his petition, Sadat said LGBT Afghans are facing an “existential threat under the Taliban.” He said there are reports that some people are identifying LGBT people to the Taliban to win “social credit” and that the Taliban has conducted house searches for LGBT people. Sadat says “nearly 800” LGBT Afghans have sought evacuation by the U.S. State Department but that, “to date, nothing has happened.”

While Sadat did not provide any documentation for his claims, independent reports from various news organizations and groups around the world seem to support his assessments. Agence France-Press reported August 18 that a confidential United Nations document indicates that the Taliban has started conducting door-to-door searches to arrest people on their priority lists.

Reuters news service, which also saw the classified report, said it indicates the “Taliban are intensifying the hunt-down of all individuals and collaborators with the former regime and, if unsuccessful, target and arrest the families and punish them according to their own interpretation of Sharia law.”

A UN press release August 6 quoted Deborah Lyons, Special Representative of the Secretary-General and Head of the United Nations Assistance Mission in Afghanistan, as receiving reports of “from Taliban-controlled areas of summary executions, beatings and clampdown on media.”

In an article posted August 21, just six days after the Taliban took control of the Afghan capital of Kabul, the Business Insider quoted two gay men in Afghanistan as saying they feared the Taliban would kill them if the Taliban found out they are gay. Each man was identified with a fictitious name to protect his identity.

A British gay magazine, Attitude, on August 26, published an interview with a young gay man in Afghanistan who said the Taliban took his boyfriend from his home, “beat him and beheaded him.”

“The Taliban said this is what we do to LGBT+, to set an example,” the magazine quoted the gay man as saying. The man said he has been in hiding and sending emails to various embassies and LGBT groups, seeking help. A lesbian told the magazine she had to change locations because the Taliban was searching homes nearby. The magazine quoted another gay Afghan in hiding as saying, “The Taliban are going street by street in search of gay people to kill.”

Openlynews.com, a digital news site of the Thomson Reuters Foundation,reported September 3 thata gay student and a gay teacher in Kabul tried to get on one of the last evacuation flights out of the country, but both failed.

Before the Taliban re-took control of the country last month, Afghan law, which prohibits adultery and pederasty, was already being interpreted as to cover homosexuality. The penalty was death by stoning for people who identified as being gay or engaged in homsexual acts.

“The difference now,” said Sadat, in an online forum September 4, “is there is a lot of people who have exposed themselves. There are a lot of people, like gay males, who are living with their boyfriends—that’s very dangerous. Because right now, what the Taliban are doing, they are going house to house, searching, because they have a hit list of LGBT people that they want to target and kill. And they have, already. And they are going to communities and telling them, ‘Hand over your homosexuals’.”

Sadat was speaking through an online forum entitled “A Life in Hiding: How Afghanistan’s LGBTQ Community is Living Under Threat.” The forum was organized on Facebook by the Indian newspaper Deccan Herald.

Although Sadat has been living in the United States since he was an infant, he said he returned to Afghanistan in 2012, while the country was being run by the U.S.-backed government of President Hamid Karzai. Although the Karzai government was hostile to LGBT people, said Sadat, some LGBT people felt more comfortable with acknowledging their sexual orientation while the country was “absorbing” much of the western culture of the U.S. and its allies.

“It’s only after the September 11 terrorist attacks [on the U.S.], that the U.S. military occupation and westernization provided impetus—that the same LGBT movement that grew all around the world, the Afghan generation wanted to be part of this movement.”

Sadat said that, when the Taliban was in control in 1996 through 2001, “they did publicly execute homosexuals—granted, it was in smaller numbers because…people were less likely to come out of the closet.”

But in the last several years, he said, “They see LGBT people getting married, on Instagram and everywhere, why not here?”

A report released last December by the International Lesbian and Gay Association stated that consensual same-sex sexual acts “could potentially” be regarded as violating Sharia law, but ILGA had “no” reported instances of executions for such acts.

Things were still very difficult. In a 2016 report, the BBC interviewed several LGBT people in Afghanistan. All spoke anonymously, and all said they understood the penalty for homosexuality in Afghanistan was execution. The report quoted an Afghan cleric as saying there was a “broad consensus among scholars” that execution was the appropriate punishment for engaging in same-sex sexual acts.

While Sadat and his family moved to the U.S. when he was a baby, he traveled back to Afghanistan as an adult to teach international politics at the American University in Kabul. He is believed to be the first Afghan-American to come out as gay and advocate for the human rights of LGBT people in Afghanistan.

Paul Jansen, Senior Advisor for Global Advocacy at Outright, said there are no official LGBTIQ organizations in Afghanistan, and any unofficial groups are underground now for their safety, as such contact is extremely difficult.

“We are in touch with a few activists as and when possible,” said Jansen. “Provision of any kind of practical support at this point is not really possible. We are embarking on a research project to document the challenges and needs of LGBTIQ communities now, because experience shows that without documentation LGBTIQ people get overlooked, and [we] will take it from there to see as and when and how we can support our partners on the ground.”

Jansen added that Outright, along with other human rights organizations, is calling on the U.S. government to offer asylum to LGBT people and others fleeing Afghanistan.

“Unfortunately, the reality of the situation,” said the Outright spokesperson, “is that most people will not be able to flee.”

In June, President Biden named Jessica Stern as the U.S. Special Envoy for Human Rights of LGBTQ+ persons. Stern, who is finishing up as executive director of Outright Action International, does not start that new position until later this month.

Meanwhile, U.S. Rep. Chris Pappas, an openly gay Democrat from New Hampshire, asked State Secretary Antony Blinken to expand those eligible for refugee status from Afghanistan “to explicitly include LGBTQ+ Afghans.”

The State Department’s announced August 2 that it was creating a new designation “for certain Afghan nationals.” The new designation, known as Priority 2, includes Afghans who worked for the U.S. but for shorter amounts of time and Afghans who were employed by media or non-governmental organizations based in the United States.

In an August 24 letter to Blinken, Pappas and 63 colleagues, including five of the eight other openly LGBT members of the U.S. House, said, “We have a moral obligation to uphold our values and utilize every tool at our disposal to protect the LGBTQ+ Afghan community.”

View Details

When Congress returns after Labor Day, the U.S. Senate Judiciary Committee will soon begin deliberation of the first nomination of an LGBT person to serve on a federal appeals circuit court bench.

President Biden this month nominated two LGBT people to serve on federal court benches: Beth Robinson of Vermont to the Second Circuit U.S. Court of Appeals and Charlotte Sweeney of Denver to the U.S. District Court for Colorado. Both are historic.

In an August 5 news release announcing the appointments, the White House noted that Robinson is the first openly LGBT member of the Vermont Supreme Court and, if confirmed, will become the “first openly LGBT woman to serve on any federal circuit court.” The release noted that Sweeney, if confirmed, would become the first openly LGBT judge in Colorado and the first openly LGBT woman to serve as a federal district court judge in any state west of the Mississippi.

“These choices also continue to fulfill the President’s promise to ensure that the nation’s courts reflect the diversity that is one of our greatest assets as a country — both in terms of personal and professional backgrounds,” said the news release.

Prior to joining the Vermont Supreme Court in 2012, Robinson played a key role in the litigation and organization surrounding the historic achievement of the nation’s first civil unions law in Vermont in 2000 and the legislature’s passage of marriage equality nine years later. She became chief legal counsel to then Vermont Governor Pete Shumlin, a Democrat, who nominated her to the state’s highest court.

Vermont’s current governor, Phil Scott, a Republican, issued a statement, calling Robinson “a steadfast public servant for the people of Vermont” and said she has “served admirably on the Vermont Supreme Court.”

“She will make a great addition to the United States Court of Appeals for the Second Circuit, bringing the Vermont values of commitment to justice and equality, fairness, and Freedom & Unity to the bench,” said Scott. “I applaud the President for making this historic nomination, and I urge the United States Senate to move expeditiously towards her confirmation.”

U.S. Senator Patrick Leahy (D-Vermont), former chair of the Senate’s Judiciary Committee and the Senate’s current president pro tempore, praised Robinson, saying she “helped Vermont — and America — more fully realize the meaning of equality under the law.”

“As a civil litigator specializing in constitutional law and LGBTQ rights, Beth served as co-counsel in the Baker v. State of Vermont lawsuit, in which the Vermont Supreme Court ruled that the state’s prohibition on same-sex marriage denied equal rights guaranteed by the Vermont Constitution,” noted Leahy in a statement. “Beth’s success in the Baker case directly resulted in Vermont’s enactment of the first civil union law in America.” As a state supreme court justice, Robinson, said Leahy, “has been widely praised as a consensus builder who is impartial and deeply dedicated to the fair application of the law.”

Last year, USA Today named Robinson as one of Vermont’s top 10 women in Vermont to make contributions to the state in the 100 years since women acquired the right to vote.

GLAD civil rights project director Mary Bonauto issued a statement saying she was “thrilled” with Robinson’s nomination, saying Robinson has a “deep commitment to the rule of law and to the principle of equal justice under law for all who come before the court….”

“That her confirmation would make her the first openly lesbian judge to serve on a U.S. appellate court further marks a pivotal moment for our country, one that hopefully signals a welcome expansion of wider representation and diversity of perspectives on our nation’s high courts,” said Bonauto.

Robinson, 56, is married to medical doctor Kim Boyman.

Sweeney, 51, is a founding partner in a Denver firm that specializes in cases involving employment discrimination. She helped establish the state’s Equal Pay for Equal Work law and has been active in the Colorado Bar Association’s leadership. She also serves as treasurer of the Matthew Shepard Foundation.

President Obama appointed the first openly LGBT person to a federal appeals court seat: Todd Hughes, to the U.S. Circuit Court for the Federal Circuit. The Senate confirmed his appointment on a 98 to 0 vote. The Federal Circuit Court is one of the nation’s 13 federal appeals circuit courts. While 12 of those have a specific geographical jurisdiction, the Federal Circuit addresses disputes involving international trade, government contracts, and federal personnel, among other things. Robinson’s appointment is to the Second Circuit, which covers Vermont, New York, and Connecticut.

In March, President Biden promoted a lesbian federal judge, Elaine Kaplan, to become Chief Judge of the U.S. Court of Federal Claims. Kaplan has been serving on the court since 2013, when President Obama appointed her. The Federal Claims court addresses cases involving lawsuits against the federal government involving such matters as tax refunds, federal contracts, and federal takings of private property.

The U.S. Senate so far this year has confirmed four circuit court judges and five district court judges nominated by Biden. Robinson is now one of three nominees pending appointment to federal appeals benches.

The Senate will return from its summer recess after Labor Day.

View Details

Despite behind-the-scenes objections, the U.S. Senate on July 22 confirmed the nominations of two openly LGBT appointees to top Pentagon posts. The vote, by voice vote without objection, confirmed transgender Shawn Graham Skelly of Virginia to be an Assistant Secretary of Defense and lesbian Gina Ortiz Jones of Texas to be Under Secretary of the Air Force.

Skelly, 55, a retired U.S. Navy pilot and former deputy chief of staff for the U.S. Pacific Command, served as a special assistant to the Under Secretary of Defense for Acquisition, Technology, and Logistics during the last three years of the Obama administration. She was also part of the Biden transition team and co-founder of an LGBT national security group called Out in National Security.

Jones, 40, a former intelligence officer and captain in the U.S. Air Force, served in Afghanistan and as an intelligence officer in the U.S. Africa Command and U.S. Defense Intelligence Agency. She has recently run two campaigns for a U.S. House seat representing San Antonio, losing by close margins.

Annise Parker, president of the LGBTQ Victory Institute, said the confirmation of Skelly and Jones to “key leadership positions” will “transform perceptions of LGBTQ people within the ranks of the U.S. military, but also among the leaders of militaries we work with around the world.”

“While they were confirmed because of their unquestionable qualifications and experience,” said Parker, “they symbolize our continued progress and will further disrupt any lingering notion that LGBTQ people are somehow unfit to serve.”

Jennifer Dane, executive director of the Modern Military Association of America, a pro-LGBT group, praised Skelly’s “exceptional military career” and work for the Obama administration and said Jones “represents diverse intersections of minority groups and her visibility at the top echelons of leadership is exactly what our communities need.”

“We look forward to working with them both to ensure honor, dignity and respect are extended to all military members,” said Dane.

Disrespect in the background

There were no voiced objections to either Skelly or Jones during their June 16 confirmation hearing before the U.S. Senate Armed Services Committee. But ahead of the hearing, at least one Republican senator derided President Biden’s more pro-LGBT military as “emasculated” and “pansies.” And several of his Republican colleagues said they were concerned about “far left” agendas.

U.S. Senator Ted Cruz (R-Texas) stirred controversy in May when he took issue with a U.S. Army recruiting video that featured a female soldier who has two moms. The two-minute video features Corporal Emma Malonelord, who operates Patriot Missile Defense weapons. In the mostly animated video, Malonelord explains what inspired her to join the Army. She describes having “fairly typical” childhood, notes that she had two moms who served as “powerful role models,” and says she finished at the top of her class in high school. She shares the experience she had when one of her parents was paralyzed in an accident and had to struggle with rehab before she could walk again and have a wedding ceremony with Malonelord’s other mother.

The Malonelord video was one of five the U.S. Army began posting on YouTube to encourage enlistment from a wide range of people. It focuses on five servicemembers—three women and two men, animated in a kind of superhero action figure presentation. An Army press release says the video was intended to make clear the Army is comprised of “real people with hopes and dreams, fears, aspirations, families, friends, and obstacles to overcome.” But the Army Times reported that the video was heavily “disliked” on YouTube, prompting the Army to shut down the comment section on all five.

Cruz, who has not served in the military, posted a message on Twitter May 20, showing the U.S. Army recruiting ad along with one from Russia. The Russian ad depicted its military as an all-white, all-male group of buff soldiers doing push-ups, parachuting, and looking somber and ominous. Cruz’s Twitter post commented, “Holy crap. Perhaps a woke, emasculated military is not the best idea,” implying, apparently, that he sees the Russian image as superior.

Cruz’s post got 33,500 “Likes” but also many stinging criticisms. Some included photos of Cruz kowtowing to President Trump and suggesting Cruz is an expert on emasculation. Most criticized the senator for expressing a preference for the Russian Army.

“It’s incredibly frustrating to have a sitting Senator degrading the service of a woman who raised her hand, volunteered, and is currently serving honorably,” said one Twitter response. Another called Cruz’s post “disgusting,” saying he was “Actively cheering for an adversary to make a domestic political opponent look worse.”

U.S. Senator Tammy Duckworth (D-Ill.) posted a Twitter message in response to Cruz, saying, “Holy crap. Perhaps a U.S. Senator shouldn’t suggest that the Russian military is better than the American military that protected him from an insurrection he helped foment?” She was referring to the January 6 mob attack on the U.S. Capitol which forced the evacuation of Congress as it was about to certify the election of President Biden. Cruz was a big promoter of then President Trump’s claims that the 2020 presidential election had been “stolen” from him.

Cruz quickly attempted to answer his critics, saying they were “lefty blue checkmarks” and that he wasn’t attacking the U.S. military.

“We have the greatest military on earth, but Dem politicians & woke media are trying to turn them into pansies.”

“Ted Cruz is a bigot and a joke and has no business questioning the strength of LGBTQ servicemembers or veterans when he hasn’t served himself,” said Elliot Imse, a spokesman for the LGBTQ Victory Institute.

U.S. Defense Secretary Lloyd Austin told CNN that servicemembers “represent the United States of America” and “ought to look like America….” He criticized Cruz’s remarks as enabling Russia and China to “capitalize on talking points like that.”

A group of 30 Republican members of Congress also targeted the Malonelord video. In a May 25 letter to Austin, the group said the Defense Department’s post-insurrection efforts to eradicate “extremism” within its ranks is, instead, rooting out servicemembers “who will not affirm far-left doctrines.” They specifically criticized the Malonelord video because it “features a lesbian wedding” and “depicts ‘two moms’ raising a child.”

View Details

The U.S. Supreme Court session that just ended amounted to a “tread water” experience for LGBT people—with several little victories and no spectacular losses. But there are sharks in these legal waters, nipping at equal protection for LGBT people in the name of religion, and prospects for the future are unsettling.

The days of the blockbuster wins for LGBT people seem over, at least for the foreseeable future. No more triumphs, like the 2015 decision to strike state bans on marriage for same-sex couples (Obergefell v. Hodges) or the 2013 decision to strike a federal law (DOMA) which banned recognition of such marriages (U.S. v. Windsor). No surprise epic, like last year’s ruling that “sex discrimination” prohibited by the federal civil rights law includes discrimination based on sexual orientation and gender identity (Bostock v. Clayton).

In the 2020 session, which adjourned July 2, the composition of the court curdled to the right and, more specifically, to the religious right. The court’s most pro-LGBT justice, Ruth Bader Ginsburg, died in September and was replaced by Amy Coney Barrett just as the 2020 session got underway. This alone brought a sense of dread and gloom for LGBT prospects going forward. Ginsburg had voted pro-LGBT 90 percent of the time; many expected Barrett to vote just as frequently against LGBT people.

Barrett had only two LGBT-related opinions to weigh in on this session. In one, Americans for Prosperity v. California, she voted with other conservatives to hold that California’s law requiring that the identities of major donors to tax-exempt organizations be reported to the state violates the First Amendment right of association for donors. In the other, Fulton v. Philadelphia, she voted with a unanimous bench to hold that Philadelphia’s interest in eradicating discrimination against LGBT people “cannot justify denying [Catholic Social Services] an exception for its religious exercise” in excluding gay couples from foster care. She, Chief Justice John Roberts, and Justice Brett Kavanaugh voted the same way on both cases.

And Barrett, Roberts, and Kavanaugh apparently withheld their consent to grant review of several lower court decisions that LGBT people had won below. It takes four justices to agree to hear an appeal before the court will accept it for review. Justices Samuel Alito and Clarence Thomas wanted to hear four different appeals where LGBT people won in the lower courts. In one of those four appeals, the Alito-Thomas duo had a third vote from Justice Neil Gorsuch. But they didn’t get the critical fourth, and that left the pro-LGBT rulings below intact.

The appeals that were snubbed included:

Arlene’s Flowers v. Washington—in which the Washington Supreme Court ruled that a state non-discrimination law does not violate the First Amendment free exercise rights of a florist who claimed her religion required her to deny service to same-sex couples seeking flowers for their weddings. In this case, Justice Gorsuch joined Alito and Thomas, wanting to hear the appeal.
Gloucester v. Grimm—in which the Fourth Circuit U.S. Court of Appeals ruled that, following the Supreme Court precedent in Bostock, a Virginia school district did violate Title IX of the federal Education Amendments Act when it refused to allow a transgender male student to use the boys’ restroom and locker room.
Texas v. California—in which the state of Texas sought to file a “bill of complaint” directly with the U.S. Supreme Court, challenging a California law that prohibited state-funded travel to certain states, including Texas, which had policies hostile to LGBT people.
Kim Davis v. Ermond—in which the Sixth Circuit U.S. Court of Appeals ruled that a county clerk in Kentucky could not refuse to issue marriage licenses to same-sex couples after the Obergefell Once again, Justices Thomas and Alito dissented. (Note: Barrett was not yet on the court when this case was rejected for review.)

Gary Buseck, senior adviser to GLBTQ Advocates & Defenders (GLAD), said he was heartened by Barrett’s concurrence in Fulton. Barrett wrote a brief concurring opinion, explaining why she did not go along with the request to overturn a Supreme Court precedent called Employment Division v. Smith. Justices Alito, Thomas, and Gorsuch urged the court to do so, saying Smith burdens the free exercise of religion. In Smith, the Supreme Court ruled that a state could deny unemployment benefits to a person fired for using illegal drugs as part of a religious ceremony. The 1990 decision said a state law denying benefits to employees fired for “misconduct” (illegal drug use) was generally applicable to all persons.

Barrett said she was “skeptical” about the idea of “swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime….” She said the Supreme Court “has been much more nuanced” in its approach and there was no reason in the Fulton conflict to overturn Smith.

Justices Kavanaugh and Stephen Breyer signed onto Barrett’s concurrence.

“You cannot write anyone off on the court at this point,” said ACLU legal director David Cole, in a post-session discussion.

Cole noted that the Supreme Court has had a majority of Republican-appointed justices since 1972 and yet has made “substantial progress” on issues such as marriage equality. The key, he said, is that the Supreme Court “doesn’t depart very far from where country is” and, “because the country had moved to a point where there was just not a good reason to deny marriage equality in 2015,” the court ruled for marriage equality in 2015.

University of California-Berkeley School of Law Professor Erwin Chemerinsky, speaking at a Supreme Court analysis session by the National Constitution Center on July 8, said he sees a Supreme Court “in transition,” since Barrett replaced Ginsburg. He said it is clear there won’t be any 5 to 4 decisions with liberals in the majority, and the conservative majority now means most cases will be more conservative appeals.

New York University School of Law Professor Melissa Murray, speaking at the same session, predicted a continued “move toward religion as having ‘most favored nation’ status” at the Supreme Court.

Two cases are already in the queue for next session: One asks whether a Catholic-run hospital can deny a hysterectomy to a female-to-male transgender patient. Another asks whether Boston, which allows LGBT Pride flags to fly on city property during pride month, can deny a Christian group to fly its flag on the same property.

View Details

On the last day of the 2020-21 session, the U.S. Supreme issued relief and worry for the LGBT community.

On the relief side, the court on July 2 indicated it would not hear the appeal of a florist who wants to deny service to a same-sex couple getting married. The case, Arlene’s Flowers v. Washington, purported to be the “ideal vehicle” for resolving the original question skirted in Masterpiece v. Colorado.

In Masterpiece, in 2018, the U.S. Supreme Court voted 7 to 2 in favor of a baker who refused to sell wedding cakes for a same-sex wedding because, he said, to do so violated his religious beliefs. But the court did not say the baker had a First Amendment free exercise right to violate Colorado’s law against sexual orientation discrimination.

By refusing to hear Arlene’s Flowers, the Supreme Court is avoiding that issue for now and leaving intact a decision of the Washington State Supreme Court, which ruled against the florist twice—once before and once after the Masterpiece decision.

Ria Tabacco Mar, an ACLU attorney who represented the gay couple in the Arlene’s Flower case, applauded the court’s denial of review.

“No one should walk into a store and have to wonder whether they will be turned away because of who they are,” said Mar. “Preventing that kind of humiliation and hurt is exactly why we have nondiscrimination laws. Yet 60 percent of states still don’t have express protections for LGBTQ people like the kind in Washington State. Our work isn’t over yet.”

On the down-side, the Supreme Court Friday agreed to hear a case where, once again, religious entities are trying to find work-a-rounds to laws and policies separating church and state. The court granted review to Carson v. Makin, which is not an LGBT-related case but is yet another case in which religious entities are seeking special dispensation under ordinary law. It’s also a case that echoes the arguments religious entities have been making to avoid complying with non-discrimination laws: that the religious person isn’t discriminating against a gay person, but discriminating against a person because his or her partner is of the same-sex.

In Carson, the parents of five children in Maine are fighting a state policy of providing public funding for parents to send their children to private schools that are willing to provide “nonsectarian education.” Maine does not provide funding for parents to send their children to schools providing religious education. The First Circuit U.S. Court of Appeals said Maine could withhold funding to sectarian schools because the exclusion was not based on any school’s religious affiliation but on “on what the school teaches through its curriculum and related activities, and how the material is presented.”

The Supreme Court did not indicate Friday whether it will review an appeal from a Catholic-run California hospital that refused to perform a hysterectomy for a female-to-male transgender patient. The case, Dignity Health v. Minton, was on the court’s list of cases to review in its private conference July 1.

But the court did refuse to review a lower case decision, Hoggard v. Rhodes, brought by the anti-LGBT Alliance Defending Freedom. In the case, a student at the Arkansas State University said her First Amendment rights were violated when the school refused to let her ignore university rules regarding the setting up of a table to form a chapter of a group on campus. The student lost in the lower courts on procedural grounds.

Friday’s orders list also disposed of a case similar to Americans for Prosperity v. California, that was decided Thursday. The conservative Institute for Free Speech appealed its case against California to stop disclosure of donors. The Supreme Court order’s list July 2 granted the appeal and sent the case back to the Ninth Circuit for consideration in light of the high court’s ruling in Americans for Prosperity.

View Details

In a limited but important victory for transgender access, the U.S. Supreme Court announced June 28 that it would not review a lower court decision that favored a transgender student’s restroom access at a public high school.

The court declined a request by a Virginia public school district to review a decision of the Fourth Circuit U.S. Court of Appeals, which covers five states—Virginia, North Carolina, South Carolina, West Virginia, and Maryland. By refusing to hear the appeal, the high court leaves the favorable decision intact for those states.

The case, Gloucester v. Grimm, has been on the U.S. Supreme Court docket before. In 2017, the high court vacated a previous Fourth Circuit ruling in favor of high school student Gavin Grimm, who was represented by the ACLU. Grimm had filed suit after he began transitioning and sought use of the boys’ restroom because he said girls reacted negatively to his presence in the girls’ restrooms because they perceive him to be a boy.

School officials initially accommodated Grimm’s request, but the school district intervened after some parents complained. The ACLU pressed Grimm’s case and won, and the Fourth Circuit repeatedly ruled in Grimm’s favor. In the latest go-round, the Fourth Circuit ruled in Grimm’s favor, citing the Supreme Court’s ruling last year in Bostock v. Clayton (that “sex discrimination” under Title VII of the federal Civil Rights Act includes sexual orientation and gender identity). The appeals court said the same logic should apply to the federal law prohibiting sex discrimination in education.

“After the Supreme Court’s recent decision in Bostock v. Clayton County, we have little difficulty holding that a bathroom policy precluding Grimm from using the boys’ restrooms discriminated against him ‘on the basis of sex’,” said the Fourth Circuit.

The Gloucester school district in Virginia appealed again to the U.S. Supreme Court, arguing that, under Title IX of the federal Education Amendments Act, schools are allowed to provide separate bathrooms for the sexes. By refusing to hear the appeal, the Supreme Court does not take a position on the issue, but the impact is meaningful.

“This is an incredible victory for Gavin and for transgender students around the country,” said Josh Block, senior staff attorney for the ACLU’s national LGBTQ & HIV Project.

Paul Castillo, an attorney with Lambda Legal, also called the Supreme Court’s refusal to take the appeal an “incredible victory.”

“There should be no doubt that federal law requires schools to protect all students. Courts all over the country, as well as the federal government have made crystal clear that LGBTQI+ students are protected by federal law and have a right to an equal education, to be protected against harassment and discrimination, and to a school environment where they can be their authentic selves,” said Castillo.

Specifically, the Fourth Circuit ruled—and the Supreme Court allowed to stand—that Title IX of the Education Amendments Act and the equal protection clause of the constitution “can protect transgender students from school bathroom policies that prohibit them from affirming their gender.”

Justices Clarence Thomas and Samuel Alito indicated they dissented from the court’s refusal to take the appeal.

The Supreme Court did not indicate June 28 whether it will hear two other LGBTQ-related appeals. One, Arlene’s Flowers v. Washington, is making its second appearance on the high court’s potential case list. It, like Masterpiece Cakeshop v. Colorado, asks whether a business serving the public can deny service to a same-sex couple because of the business owner’s religious hostility to same-sex marriage. The other, Dignity Health v. Minton, asks whether a Catholic-run hospital can deny a hysterectomy to a female-to-male transgender patient as part of treatment for gender dysphoria. The hospital chain in question says its Catholic-run hospitals would be violating Catholic “religious directives” to provide such treatment.

View Details

In an 8 to 1 decision, the U.S. Supreme Court ruled June 23 that a public high school violated a student’s First Amendment right to free speech when it suspended the student for posting an angry post on social media after school and off campus. But the court expressed support for schools needing to have some control over off-campus speech in order to prevent “serious or severe bullying or harassment targeting particular individuals….”

LGBT groups took opposite sides in the case, Mahanoy v. Levy, saying it could have important implications for LGBT students, even though the case had no LGBT-specific facts.

The majority opinion upheld the lower courts decisions, saying the school violated student Brandi Levy’s First Amendment right to free speech. The Mahanoy Area High School had argued that it needed to penalize the student because “schools face hard calls about how to address such off-campus speech,” including instances of where students use social media to harass other students and teachers. It said “schools have exercised authority to discipline speech that disrupts the campus or harms other students, whether that speech originates on campus or off.”

Several pro-LGBT groups, including those fighting the bullying of LGBT students, noted in a brief to the Supreme Court that a study found that more than 80 percent of LGBT youth reported being bullied or harassed at school. They said, “there must be a clear and unmistakable pronouncement that school officials may take reasonable measures to curtail peer bullying that negatively impacts students’ ability to access their education, wherever and in whatever form it takes place.”

But a brief submitted by Lambda Legal, Equality California, GLBTQ Legal Advocates & Defenders (GLAD), the Human Rights Campaign, National Center for Lesbian Rights, and more than two dozen other groups, sided with the student. They pointed to studies that show that historically marginalized groups—such as LGBT students—“are more likely to receive unwarranted school discipline” for their off-campus speech. The lower courts had relied on a landmark U.S. Supreme Court decision—Tinker v. Des Moines—which held that students have a right to freedom of speech unless a school can prove that the students’ actions or speech would “substantially interfere” with school operations.

Justice Stephen Breyer, writing for the majority, walked a line between the two points of view.

“We have made clear that students do not ‘shed their constitutional rights to freedom of speech or expression,’ even ‘at the school house gate’….But we have also made clear that courts must apply the First Amendment ‘in light of the special characteristics of the school environment.”

Breyer said the majority of the court’s members “do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus.

“The school’s regulatory interests remain significant in some off-campus circumstances,” said Breyer. “The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation. These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; …and breaches of school security devices, including material maintained within school computers.”

Breyer noted there were “many different kinds of off-campus speech,” that “may call for First Amendment leeway,” such as “a student’s unpopular expression” or the involvement of “political or religious speech.” Given these complications, he said, means “the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”

“We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”

Justice Clarence Thomas dissented, saying the majority opinion was too vague, saying it allowed “Schools can regulate speech less often when that speech occurs off campus,” but “‘leaves for future cases’ the job of developing” a more enduring rule.

View Details

Was it a “significant” victory for LGBT people or another sign of “death by a thousand cuts” for LGBT equal rights? Was it an “important win for religious liberty” or a “failure”?

Reaction to the U.S. Supreme Court’s June 17 decision in Fulton v. Philadelphia— allowing a Catholic foster care agency to refuse to obey a city non-discrimination ordinance— elicited an unusually wide range of often contradictory assessments.

One LGBT legal activist called it a “significant victory for LGBTQ people;” another called it “troubling.” One conservative commentator called it a “resounding victory for religious freedom,” while another lamented Fulton was a “failure by the high court to definitely end the ongoing governmental targeting of faith-based organizations.”

The Fulton decision did not deliver a straightforward message as Obergefell v. Hodges did in 2015, when the court said, “same-sex couples may now exercise the fundamental right to marry in all States.” It did not spell out clearly, as it did in Bostock v. Clayton last year, that, “An employer who fires an individual merely for being gay or transgender defies the law.”

Instead, Fulton carried a nuanced message, akin to that of the Masterpiece Cakeshop v. Colorado decision in 2018. In Masterpiece, the court ruled: “the laws and the Constitution can, and in some instances must, protect [LGBT people] in the exercise of their civil rights….At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

In Fulton, it said: “We do not doubt that [the city’s] interest [in the equal treatment of prospective foster parents] is a weighty one, for [quoting from Masterpiece] ‘our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.’ On the facts of this case, however,” said Fulton, “this interest cannot justify denying [Catholic Social Services, or CSS] an exception for its religious exercise.”

“CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs,” wrote Chief Justice John Roberts, “it does not seek to impose those beliefs on anyone else.” Joining Roberts in the opinion were the three more liberal members of the court—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—and two of the court’s newest conservatives—Justices Brett Kavanaugh and Amy Coney Barrett.

The remaining three conservative justices—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—concurred in the judgment (that Philadelphia owed CSS an exception to its non-discrimination policy protecting LGBT people). But Alito and Gorsuch wrote their own concurring opinions, indicating they would have gone much further in ruling for CSS. And Thomas joined both.

The facts of the Fulton case are these: The city of Philadelphia has a city ordinance prohibiting discrimination based on sexual orientation and its contracts with outside organizations include similar language. City officials discovered that one of the private agencies to which it refers children in need of foster homes—Catholic Social Services (CSS)—had a policy of denying such placements to same-sex couples. When CSS’s contract with the city came up for renewal, the city declined to renew it, saying CSS was in violation of the city ordinance and the contract’s language. CSS sued, saying the city’s refusal to renew its contract violated its First Amendment Free Exercise right. Besides, said CSS, it never violated the law because no same-sex couples had ever come to CSS and, if they had, CSS would have gladly referred them to some other foster care agency.

Finding escape clauses

Writing for the court, Chief Justice John Roberts accepted CSS’s contention that, by certifying a family for potential foster care placements, it was making an “endorsement of their relationships.”

“CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” wrote Roberts, noting that no same-sex couple had ever gone to CSS seeking to be certified. And he reiterated CSS’s contention that, if a same-sex couple had gone to CSS, the Catholic agency would have directed the couple to an agency that does certify same-sex couples.

Jenny Pizer, senior counsel and director of law and policy for Lambda Legal, could not buy into that line of logic.

“Think about this in another area of law, like health care,” said Pizer. “If a doctor announces prospectively that they intend to discriminate—that they will treat only people of this one race and not another race—that’s a discrimination problem. And maybe people hear that doctor’s message and don’t go to that doctor. But that doesn’t absolve that medical office. You wouldn’t have a decision saying that, ‘Lots of doctors in town are willing to treat black people so black people can just go somewhere elsewhere.’ There has never been that kind of understanding of how civil rights laws are supposed to operate.”

Pizer said the Fulton decision is “a lot like Masterpiece.”

“In both cases, it seems there was a search through the record to find reasons to allow the religious claim to win.”

In Masterpiece, that reason was a statement made by a member of the Colorado human rights commission during a hearing on a gay couple’s complaint against a baker who refused to make them a wedding cake. The 7 to 2 majority said the commissioner’s statement constituted “official expressions of hostility to religion” and that this hostility was “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” Because the baker’s religious beliefs did not receive a neutral hearing, the Supreme Court invalidated the claims against the baker.

In Fulton, Roberts relied on a statement in the city’s contract that allowed the city’s commissioner of health to grant an “exemption” of non-discrimination policies if it was in the best interest of a child.

“It’s not standard analysis,” said Pizer. “The evidence in Fulton was that Philadelphia enforced the law in a religiously neutral way, and the fact that there was a theoretical possibility of allowing an exception doesn’t usually defeat the whole process.”

Roberts made two other arguments for his decision, too. One focused on the way Philadelphia’s foster care system was set up: The city had custody of children in need of homes and asked its various foster care contractors to “certify” couples who could provide suitable homes. CSS said certification was tantamount to endorsement and claimed its religious beliefs were opposed to endorsing same-sex marriages. So, the city’s insistence that CSS certify qualified same-sex couples “forced” CSS to choose between its religious beliefs and serving foster care children in Philadelphia. (The city had argued that CSS received $26 million per year for its services, “which is hardly something demonstrating religious hostility.”)

Roberts’ second argument was that foster care placement is not a “public accommodation.” A public accommodation, he said, is one that provides a benefit to the “general public.”

“Certification as a foster parent, by contrast, is not readily accessible to the public,” wrote Roberts. “It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

Paths of least resistance

What Roberts did not do was tackle a 1990 Supreme Court decision (Employment Division v. Smith) that conservatives, like Alito, hoped the court would overturn.

In Smith, the Supreme Court ruled that a state could deny unemployment benefits to a person fired for using illegal drugs as part of a religious ceremony. It said a state law denying benefits to employees fired for “misconduct” (illegal drug use) was generally applicable to all persons. As then Justice Antonin Scalia, who wrote Smith, put it, society would be “courting anarchy” to allow “constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws… and laws providing for equality of opportunity for the races.”

Chief Justice Roberts wrote in Fulton that, “This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.” Philadelphia’s non-discrimination policies were not generally applicable, he said, because they included the possibility of gaining an exemption, and the city denied an exemption to CSS for its religious hostility to same-sex couples.

Arguing that Smith should be overturned, Alito said there was “confusion about the meaning of Smith’s holding on exemptions from generally applicable laws.” He said Smith was “wrongly decided,” that Scalia’s concern about “anarchy” was “not well founded,” and that CSS’s policy simply “expresses the idea that same-sex couples should not be foster parents….”

“Many people today find this idea not only objectionable but hurtful,” wrote Alito. “Nevertheless, protecting against this form of harm is not an interest that can justify the abridgment of First Amendment rights….”

“Many core religious beliefs are perceived as hateful by members of other religions or nonbelievers,” said Alito. “Proclaiming that there is only one God is offensive to polytheists, and saying that there are many gods is anathema to Jews, Christians, and Muslims.”

“While CSS’s ideas about marriage are likely to be objectionable to same-sex couples,” said Alito, “lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.” He then cited the Supreme Court’s 2015 decision in Obergefell v. Hodges (striking down state bans on marriage for same-sex couples) and the Masterpiece decision. He said the majority in Obergefell “refused to equate traditional beliefs about marriage…with racism” and “promised” that religions could “continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

“An open society,” said Alito, “can keep that promise while still respecting the ‘dignity,’ ‘worth,’ and fundamental equality of all members of the community.”

Dodging bullets

James Essex, director of the national ACLU’s LGBTQ & HIV Project, said it’s very important in Fulton that “the court did not rule (as the agency asked) that there is a constitutional right for government contractors such as the foster care agency to discriminate in their work for the city based on religious beliefs.”

Fulton, he said, “means that governments can and should continue to enforce their non-discrimination laws in all contexts.”

Essex noted that, since the Masterpiece decision, anti-LGBT activists have “tried to get courts to rule that businesses, health care providers, employers, and government contractors all have a constitutional right to discriminate because of their religious objection to LGBTQ people.”

The ruling in Fulton, he said, represents the “second time that the [Supreme Court] has refused to do so….”

Shannon Minter of the National Center for Lesbian Rights said one might even consider it the third time, noting that, in 2010, the Supreme Court, in Christian Legal Society v. Martinez, upheld a California college’s policy banning discrimination based on sexual orientation in campus group membership. A Christian student group at a public law school in San Francisco had claimed a free exercise right to exclude LGBT students.

“Anti-LGBTQ groups have tried twice now (really three times, going back to the Christian Legal Society case of 2010) to get the Supreme Court to recognize a constitutionally compelled exemption to anti-discrimination law,” said Minter, “and the court has declined both (or all three) times. That is a significant victory for LGBTQ people.”

“I am amazed we dodged this bullet again,” said Minter. “I am not sure how long we can keep dodging it, but for now, we live to fight again another day.”

But Essex says “any loss—even this narrow one—will be painful to the LGBTQ community, particularly in the wake of a record number of anti-LGBTQ bills moving in state legislatures this year.”

“The legal fight about whether, and in what context, the Constitution gives some people a right to discriminate is one of the most important legal issues for the LGBTQ community,” said Essex in his analysis of the Fulton decision. “It has consequences for how every single non-discrimination law and regulation operates and could allow all of the civil rights laws that our community struggled for decades to establish to be undermined and side-stepped and ultimately rendered close to irrelevant.”

The conflict between religious-based hostility to LGBT people and laws prohibiting discrimination against LGBT people was neither resolved nor reduced by the Fulton decision.

While Philadelphia City Solicitor Diana Cortes said the city would work with the CSS, as the Supreme Court decision requires, she added, “The City will not waver from our commitment to ensuring equality for all Americans, including LGBTQ families.” Some legal observers expect the city to eliminate the “exception” that Supreme Court relied upon in ruling for CSS. That could potentially send the same case back to the Supreme Court again.

The Masterpiece Cakeshop could end up back at the Supreme Court again, too. On June 15, a Colorado district court judge in Denver ruled, in Scardina v. Masterpiece, that Masterpiece owner Jack Phillips violated the state human rights law when he refused to bake a “gender reveal” cake for a transgender customer’s birthday, saying he had strong religious beliefs that a person cannot be transgender.

While Phillips is a “man of good faith religious convictions,” ruled Judge A. Bruce Jones (appointed by then Governor Bill Ritter, a Democrat), the state law prohibiting discrimination based on sexual orientation is a “neutral law of general applicability” that requires the baker not refuse service to a potential customer based on the customer’s sexual orientation.

“The anti-discrimination laws,” wrote Judge Jones, “are intended to ensure that members of our society who have historically been treated unfairly…are no longer treated as ‘others’.”

Numerous other cases around the country are also testing the issue of religious exercise versus non-discrimination laws. Many are challenging Trump administration regulations that sought to enable various health agencies, including foster care services, to claim religious beliefs to deny equal treatment to LGBT people. Some are challenging other Catholic foster care agencies. In Texas, for instance, a lesbian couple seeking to adopt unaccompanied refugee children applied to Catholic Charities in Fort Worth but were told they did not qualify because the couple did not “mirror the holy family.”

As Justice Gorsuch said at the end of his concurring opinion, disappointed that the majority had not struck down Smith, “These cases will keep coming until the Court musters the fortitude to supply an answer.”

View Details

In a stunning and unanimous judgment, the U.S. Supreme Court ruled Thursday that a city requiring that its contractors obey an ordinance prohibiting discrimination based on sexual orientation when the contractors claim a religious belief to do so violates the Free Exercise Clause of the First Amendment.

The decision is a huge blow to LGBTQ civil rights activists, who just last year won a decision that said “sexual orientation” and “gender identity” are included under a federal law’s prohibition of discrimination based on “sex.”

The oral argument in the case, Fulton v. Philadelphia, went largely unpublicized last November because the nation’s attention was fixated on the outcome of the 2020 presidential election. But statements and questions by some conservative justices during that argument –coupled with the new solid majority of conservatives on the court—left LGBTQ legal activists feeling a bit unnerved.

In Fulton, the city of Philadelphia discovered that an independent contractor with a contract from the city to provide foster care placement services had a policy of denying such services to same-sex couples. That contractor, Catholic Social Services (CSS), acknowledged its policy violated city law but said no same-sex couple had ever approached the agency so it couldn’t be accused of discrimination. When CSS’s contract with the city came up for renewal, the city declined to renew it, saying CSS was in violation of the contract’s stipulation that contractors comply with the city’s laws—including laws prohibiting discrimination on the basis of numerous factors, including sexual orientation.

Chief Justice John Roberts wrote the June 17 decision and was joined in the judgment by all other justices. Three of the justices—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—filed opinions indicating they agreed in judgment only. The ACLU was quick to point out that, “The court did not, however, establish a general right for religious organizations to violate non-discrimination laws.”

Fulton v. Philadelphia was the latest in a long line of lawsuits that have attempted to secure exemptions for some people and businesses to laws prohibiting discrimination based on sexual orientation and gender identity. Those arguing for the exemptions claim that the First Amendment guarantee to free exercise of their religious beliefs should give them the right to discriminate against LGBTQ people.

Seven of the nine justices are Catholic or have strong ties to the Catholic church.

For reaction and analysis, check back.

View Details

The U.S. Supreme Court announced this month (May 3) that it would not review an appeal brought by a female West Point cadet who says the federal government should be liable for injuries she sustained from a sexual assault at the U.S. military academy. Only Justice Clarence Thomas dissented, objecting to the notion that “rape is considered an injury incident to military service.”

The cadet, identified in court documents as Jane Doe, said she was raped on campus and subjected to constant sexual harassment. She sued the government after the academy failed to adhere to mandatory Defense Department regulations governing the military’s response to sexual assaults.

Studies of sexual assault in the military are limited, but one survey of veterans found that 31 percent of lesbian and bisexual former servicemembers indicated they had been sexually assaulted in the military compared to 13 percent of heterosexual women veterans.

In a brief supporting Jane Doe’s appeal, the Modern Military Association of America (formerly known as OutServe) joined several other women’s groups to urge the Supreme Court accept the appeal and overturn a 1950 decision that has barred lawsuits similar to Doe’s.

The Federal Tort Claims Act allows individuals to sue the federal government over certain injuries sustained on federal property or caused by federal employees. But efforts to combat sexual assaults in the military have been running up against a 1950 U.S. Supreme Court ruling –in Feres v. U.S.— that held that members of the military cannot sue for injuries “incident to service.”

In Doe’s case, the military argued that the injuries Doe sustained from being raped on campus were “incident to service.”

The MMAA brief argued that the Feres decision should not be used to excuse government culpability for sexual assault injuries received while attending a military academy. The brief argued that the Feres ruling is giving a “free pass” to sexual assailants at military academies. It noted that sexual minority servicemembers account for even higher numbers of the victims, including male servicemembers who identify as gay or bisexual.

“Specifically, LGBT service members (6.3% of women and 3.5% of men) were more likely to indicate experiencing sexual assault than non-LGBT service members (3.5% of women and 0.3% of men),” said the article in the journal of Sexual Research Social Policy. “The prevalence rates of sexual assault were estimated at 4.5% for LGBT service members compared to 0.8% for non-LGBT service members.”

Justice Clarence Thomas was the lone dissent on the court’s refusal to take the appeal. He noted that, had Doe been a civilian contractor visiting the academy campus when she was raped, she could have brought her claims for injuries.

“Feres was wrongly decided; and this case was wrongly decided as a result,” said Thomas in a two-page dissent.

Thomas said he was concerned that the student’s “rape is considered an injury incident to military service.”

Acting Solicitor General Elizabeth Prelogar’s brief to the Supreme Court had argued that, as a cadet at West Point, Jane Doe was an “active duty member of the Army” and faulted Doe for not pressing claims against the cadet who raped her. But Prelogar did not mention that, to press claims against her assailant, Doe would have had to disclose her own identity as a victim of sexual assault. Prelogar urged the court not to revisit Feres “after having been woven into the statutory fabric for more than 70 years.” She also argued that dismissal of Doe’s claims “reflects the appropriate degree of ‘judicial deference to Congress and the Executive Branch in matters of military oversight.’”

To accept an appeal for review, at least four justices must agree to hear the case.

Keen News Service: Recent Episodes

Lisa Keen