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Does a potential overturn of Roe imperil LGBTQ rights?

Some fear that Obergefell marriage decision could fall

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Protests outside the U.S. Supreme Court on Dec. 1. (Photo by Cathy Renna)

The oral arguments before the justices of the United States Supreme Court had barely ended in the case brought by the state of Mississippi defending its law banning abortion after 15 weeks, Dobbs v. Jackson Women’s Health Organization, when alarms were set off in legal circles as some argued that Obergefell v. Hodges — the same-sex marriage decision — would be in danger should the high court rule to overturn Roe v. Wade.

Florida State University law professor Mary Ziegler, appearing on NPR’s ‘Heard on All Things Considered,’ told host Mary Louise Kelly that there was a basis for concern over whether the court would actually overrule its precedents in other cases based on the questions and statements raised during the hearing by the conservative members of the court.

Asked by Kelly if she saw a legal door opening Ziegler affirmed that she did. Kelly then asked her, “Them taking up cases to do with that. What about same-sex marriage?”

Ziegler answered, “Yeah, same-sex marriage is definitely a candidate. Justices Alito and Thomas have in passing mentioned in dicta that they think it might be worth revisiting Obergefell v. Hodges – the same-sex marriage decision.

“And I think it’s fair to say that in the sort of panoply of culture war issues, that rights for same-sex couples and sexual orientation are still among the most contested, even though certainly same-sex marriage is more subtle than it was and than abortion was.

“I think that certainly the sort of balance between LGBTIQ rights and religious liberty writ large is a very much alive issue, and I think some states may try to test the boundaries with Obergefell, particularly knowing that they have a few justices potentially willing to go there with them.”

As almost if to underscore the point raised by Ziegler during the hearing, Associate U.S. Supreme Court Justice Sonia M. Sotomayor pointed out that the high court has taken and “discerned” certain rights in cases from the Constitution.

Along with abortion, the court has “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,” Sotomayor said. “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.”

In following up the cases cited by Justice Sotomayor, Associate U.S. Supreme Court Justice Amy Coney Barrett asked Mississippi Solicitor General Scott Stewart, who was defending the state’s abortion law, whether a decision in his favor would affect the legal precedents in those cases cited by Justice Sotomayor.

In his answer to Justice Barrett, the state’s Solicitor General said cases involving contraception, same-sex marriage and sodomy wouldn’t be called into question because they involve “clear rules that have engendered strong reliance interests and that have not produced negative consequences or all the many other negative stare decisis considerations we pointed out.”

However, Lambda Legal Chief Strategy Officer and Legal Director, Sharon McGowan had a different take and interpreted remarks by Associate U.S. Supreme Court Justice Brett Kavanaugh to mean that the decisions in Lawrence v. Texas, which decriminalized private sexual intimacy between same-sex couples, and Obergefell v. Hodges, which struck down remaining bans on the freedom of same-sex couples to marry, would actually justify overturning Roe v. Wade.

In a publicly released media statement McGowan noted: “During today’s argument, Justice Kavanaugh suggested that two key Supreme Court decisions protecting LGBTQ civil rights—Lawrence v. Texas and Obergefell v. Hodges—support overruling Roe v. Wade and Planned Parenthood v. Casey.

‘To that we say, NOT IN OUR NAME. LGBTQ people need abortions. Just as important, those landmark LGBTQ decisions EXPANDED individual liberty, not the opposite. They reflected the growing societal understanding of our common humanity and equality under law.

“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. … 

“These landmark LGBTQ cases, which Lambda Legal litigated and won, and on which we rely today to protect our community’s civil rights, were built directly on the foundation of Casey and Roe. Our interests in equal dignity, autonomy, and liberty are shared, intertwined, and fundamental.” 

On Sunday, the Blade spoke with Shannon Minter, legal director for the National Center for Lesbian Rights, a national LGBTQ+ legal organization that represented three same-sex couples from Tennessee, whose case was heard by the U.S. Supreme Court along with Obergefell and two other cases.

Minter is urging caution in how people interpret the court arguments and remarks made by the justices.

“We should be cautious about taking the bait from anti-LGBTQ groups who falsely argue that if the Supreme Court reverses or undermines Roe v. Wade, they are likely to reverse or undermine Obergefell or Lawrence. In fact, that is highly unlikely, as the argument in Dobbs itself showed,” he said.

“The only reason Justice Kavanaugh mentioned Obergefell and Lawrence, along with Brown v. Board of Education, was to cite them as examples of cases in which the Supreme Court clearly did the right thing. All of those decisions rely at least as strongly on equal protection as on fundamental rights, and even this extremely conservative Supreme Court has not questioned the foundational role of equal protection in our nation’s constitutional law,” Minter stressed.

During an interview with Bloomberg magazine, David Cortman, of the Scottsdale, Ariz.-based anti-LGBTQ legal group Alliance Defending Freedom, which has been listed by the Southern Poverty Law Center as an extremist hate group, said “two things in particular distinguish abortion from those other privacy rights: the right to life and the states’ interest in protecting a child.”

Cortman, whose group urged the justices to allow states to ban same-sex marriages, said those other rights may be just as wrong as the right to an abortion. “But the fundamental interest in life that’s at issue in abortion means those other rights are probably not in any real danger of being overturned.”

But Cortman is of the opinion that there is little impetus among the court’s conservatives to take up challenges to those cases.

However, the fact that the six to three makeup of the high court with a conservative majority has progressives clamoring for the public to pay closer attention and be more proactively engaged.

Kierra Johnson, executive director of the National LGBTQ Task Force, in an emailed statement to the Blade underscored those concerns:

“Reports and analysis coming out of Wednesday’s Supreme Court hearing on Dobbs v. Jackson Women’s Health Organization are extremely disturbing and represent a threat to our individual constitutional rights to privacy and autonomy. There is no ‘middle ground’ on what the Constitution guarantees and what was decided decades ago with the Roe v Wade decision. 

“This is about liberty, equality, and the rule of law, not the political or partisan views of those sitting on the bench. The unprecedented decision to remove a constitutional right recognized by the Supreme Court 50 years ago would set back civil rights by decades. ….

“Abortion access is essential, and a fundamental right under the U.S. Constitution. Bans on abortion are deeply racist and profoundly sexist – the harshest impacts fall on Black and Brown women and pregnant people and on our families and communities.

“If you think this decision will not affect you, think again: a wrong decision by the Supreme Court means you, too, will lose your bodily autonomy, your ability to own your own personal and community power. This is not just about abortion; it is about controlling bodies based on someone else determining your worthiness. This is a racial justice issue. This is a women’s issue. It is an LGBTQ issue. It is a civil rights issue. These are our fundamental rights that are at stake.”

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U.S. Supreme Court

U.S. Supreme Court ruling allows Biden administration to end MPP

Trump-era policy placed LGBTQ asylum seekers at increased risk

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(Washington Blade photo by Michael K. Lavers)

The U.S. Supreme Court on Thursday in a 5-4 ruling said the Biden administration can end a policy that forced asylum seekers to pursue their cases in Mexico.

The previous White House’s Migrant Protection Protocols program, which became known as the “Remain in Mexico” policy, took effect in 2019.

The Biden administration suspended MPP enrollment shortly after it took office in January 2021. The program was to have ended six months later, but a federal judge in Texas ordered MPP’s reinstatement after the state and Missouri filed suit against the Biden administration.

Thursday’s ruling sends the Texas and Missouri case back to lower courts.

“As Secretary Mayorkas concluded in October 2021 after a thorough review, the prior administration’s Migrant Protection Protocols (MPP) has endemic flaws, imposes unjustifiable human costs and pulls resources and personnel away from other priority efforts to secure our border,” said the Department of Homeland Security in a statement. “We welcome the Supreme Court’s decision affirming that the Secretary has the discretionary authority to terminate the program, and we will continue our efforts to terminate the program as soon as legally permissible.” 

U.S. Sen. Alex Padilla (D-Calif.) also welcomed the ruling.

“Today’s Supreme Court decision correctly acknowledges the Biden administration’s authority to end the unlawful and cruel ‘Remain in Mexico’ program,” he said in a statement. “For more than three years, this horrifying policy has denied asylum seekers their right to due process and subjected them to crimes like rape, kidnapping and torture in northern Mexican border cities while they await their court hearings.”

Advocates sharply criticized MPP, in part, because it made LGBTQ and intersex asylum seekers who were forced to live in Tijuana, Ciudad Juárez, Reynosa, Matamoros and other Mexican border cities even more vulnerable to violence and persecution based on their sexual orientation and gender identity.

[email protected] Coalition President Bamby Salcedo on Thursday told the Washington Blade the Supreme Court ruling “will certainly impact our community in a positive way.”

“We know that people who have to remain in Mexico to wait continue to be victims of violence,” said Salcedo. “This is definitely a step in the right direction and we’re grateful that this happened in this way.”

Emilio Vicente, communications and policy director of Familia: TQLM, an organization that advocates on behalf of transgender and gender non-conforming immigrants, echoed Salcedo.

“We’re glad to finally have some good news from the Supreme Court after horrible rulings on abortions, climate change, Native American rights,” said Vicente. “Ending ‘Remain in Mexico’ will allow LGBTQ+ asylum seekers who face increased discrimination and abuse during the journey to the U.S., to be able to seek asylum here.” 

Abdiel Echevarría-Cabán is a South Texas-based immigration attorney and human rights law and policy expert who the LGBTQ+ Bar in 2021 recognized as one of its 40 best LGBTQ lawyers who are under 40.

He told the Blade on Thursday the Supreme Court ruling is “a victory we must celebrate.” Echevarría-Cabán also said MPP placed LGBTQ and intersex asylum seekers at increased risk. 

“Refugees in general, but especially LGBT refugees, are extremely vulnerable to other type of harms such as kidnappings by cartel members, extortion, physical and psychological abuses from Mexican law enforcement authorities and third parties given the high levels of discrimination for LGBT refugees in Mexico,” said Echevarría-Cabán.

The Supreme Court issued its ruling a day after the Justice Department filed charges against four people in connection with the deaths of 53 migrants who were found in the back of a tractor trailer truck in San Antonio.

The Biden administration in April announced its plans to terminate Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the pandemic. Title 42 was to have ended on May 23, but a federal judge ruled against the White House.

“This decision isn’t the end of the fight for ensuring that people seeking asylum get asylum but it’s an important step in protecting vulnerable people,” Vicente told the Blade after Thursday’s ruling. “President Biden must follow through on his commitment to end MPP and protect all asylum seekers.”

Salcedo noted to the Blade the “system, as it is, particularly when it comes to trans women, needs to be completely changed so that we can be at a better place as a community.” Padilla in his statement urged the Biden administration “to do everything in its power to swiftly end ‘Remain in Mexico’ once and for all.”

“Misguided and inhumane Trump-era policies like ‘Remain in Mexico’ and Title 42 have only decimated an already broken immigration system,” he said. “We must keep working to restore the lawful processing of asylum seekers at the border, in keeping with America’s most deeply held values as a nation of immigrants.”

The Department of Homeland Security in its statement notes Title 42 remains in place.

“The department also continues to enforce our immigration laws at the border and administer consequences for those who enter unlawfully, and will continue the court-mandated enforcement of the Centers for Disease Control and Prevention’s Title 42 public health order,” it reads.

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Politics

Kamala Harris hosts Pride month reception

Upwards of 200 people attended Naval Observatory event

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Vice President Kamala Harris hosted about 200 guests for Pride Month celebration at her official residence on June 28, 2022. She spoke at the Capital Pride festival in D.C. earlier in the month. (Washington Blade photo by Michael Key)

Vice President Kamala Harris helped bring Pride Month to a close Tuesday at her residence with a celebration for high-profile members of the LGBTQ community, recognizing successes achieved but also urging continued movement.

“When we celebrate Pride, it’s because we understand not only the strength of what we have accomplished, and the fight for equality, but we [also] understand the fragility of these gains, and so we know what we must do to be vigilant and maintain [those rights],” Harris said.

The Advocate reported in coverage of the event the Pride celebration was the first ever to take place at the vice president’s residence, but that’s incorrect.

President Biden as vice president hosted a Pride event with LGBTQ leaders in 2014. Harris also said during the event her understanding was it was a first for a sitting vice president.

An estimated 200 attendees were present for the event at the Naval Observatory in D.C., which serves as the vice president’s official residence. Guests at the party mingled by the pool and partook of drinks served on a spinning wheel placed just outside.

High-profile officials from the Biden administration who were present included Transportation Secretary Pete Buttigieg and Interior Secretary Deb Haaland. Neither delivered remarks. Also at the event was “RuPaul’s Drag Race” star Shangela, who addressed the crowd.

Kris Perry and Sandy Stier, who were among in plaintiffs in the litigation against California’s Proposition 8, were also present at the event. Harris married the couple in 2013 as soon as the U.S. Supreme Court issued a ruling restoring marriage equality to the state.

Perry and Stier spoke before the crowd and urged them to continue to stand strong in the aftermath of the Supreme Court’s recent decision overturning Roe v. Wade.

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U.S. Supreme Court

Ketanji Brown Jackson sworn in as first Black woman Supreme Court justice

Roe v. Wade struck down last Friday

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(Washington Blade photo by Michael Key)

Ketanji Brown Jackson was sworn in Thursday as the newest member of the U.S. Supreme Court, representing a welcome change on the bench for progressives who are still outraged after the decision last week overturning the right to abortion found in Roe v. Wade.

Jackson, who’s now the first Black woman to serve on the high court, has replaced Justice Stephen Breyer, a Clinton appointee who is retiring upon the end of the Supreme Court’s term. Breyer announced his forthcoming departure months ago as progressives urged him to stop to ensure a replacement appointed a Democratic president and confirmed by a Democratic Senate.

The briefing swearing-in was conducted by Chief Justice John Roberts, who administered the oath of office for Brown before a small gathering of Jackson’s family, including her two daughters, according to a report in the New York Times.

GLAAD CEO Sarah Kate Ellis said in a statement the beginning of Jackson’s tenure on the Supreme Court “will bring long-needed representation to the Supreme Court at a critical juncture in our nation’s history, and after the court’s disastrous term dismantling personal liberty.”

“It bears repeating the obvious that women, people of color and LGBTQ people are Americans deserving of equal protection under law,” Ellis said. “Justice Jackson will be a visible and inspiring presence on a court currently dominated by extremists, reminding all that America should always be moving forward to expand freedom.”

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