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U.S. Supreme Court

Obergefell lawyer discusses post-Roe fate of marriage equality

Dan Canon represented Ky. plaintiffs in landmark case

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Plaintiffs in marriage equality cases on the steps of the U.S. Supreme Court in 2015 (Washington Blade photo by Michael Key)

Faced with the likely possibility that the U.S. Supreme Court is poised to take away the constitutional right to marry for same-sex couples’, Congressional Democrats this week reintroduced legislation designed to forestall potential fallout of a reversal of the court’s landmark 2015 Obergefell v. Hodges ruling. 

The Respect for Marriage Act sailed through the U.S. House of Representatives on Tuesday with support from a quarter of the Republican caucus totaling 47 members. A companion bill in the U.S. Senate introduced by U.S. Sens. Tammy Baldwin (D-Wis.) and Dianne Feinstein (D-Calif.), with co-sponsors U.S. Sens. Rob Portman (R-Ohio) and Susan Collins (R-Maine), now stands a realistic chance of securing the endorsement of 10 Senate Republicans, which is necessary to reach the 60-vote bipartisan threshold majority to break a filibuster. 

The prospect of a floor vote on the bill inched closer, possibly as early as next week with U.S. Sen. Ron Johnson’s (R-Wis.) commitment on Thursday to not oppose the bill. Another sign of tepid support among the Senate Republicans this week came from U.S. Sen. Thom Tillis (R-N.C.), who said he “probably would” vote for the legislation, while U.S. Sen. Lisa Murkowski (R-Alaska)’s endorsement was more enthusiastic.

“Not only would I like to see Roe, Casey, and Griswold on contraception codified,” said the Alaska senator, “but I’ve also made clear my support … for gay marriage years ago.”

Last month, when the High Court overturned Roe v. Wade, Justice Clarence Thomas wrote in his concurring opinion that he saw a valid interest in revisiting other rulings where the court had established legal precedent with other constitutional privacy rights issues to include Obergefell.

Scrambling to protect reproductive rights after the Dobbs v. Jackson ruling, Congressional Democrats introduced an ambitious bill to codify the right to abortion nationwide, which earned only seven votes from House GOP members and was doomed to fail in the Senate (despite Murkowski’s stance on the matter.) 

With the Respect for Marriage Act, Democrats have opted for a more modest approach to mitigate some of the consequences resulting from a decision overturning marriage equality, betting that its limited scope would win over enough Senate Republicans to pass it. Ahead of the 2022 midterm elections, Democrats also hope to demonstrate their commitment to protecting marriage equality support which reached 71 percent of  Americans according to a Gallup poll in June.

In an emailed statement to the Los Angeles Blade, U.S. Rep. Barbara Lee (D-Calif.) discussed how Congressional Democrats are gearing up to battle the Supreme Court’s looming threat of taking away rights from same-sex couples: 

“As we’ve seen with the Dobbs decision, this far-right, Republican-appointed court has demonstrated clearly they won’t hesitate to undermine the will of the people and revoke long-established constitutional protections. If they overturned 50 years of the right to an abortion with Roe, they’ll overturn a decade of marriage equality with Obergefell. Make no mistake: Democrats are the party fighting for fundamental rights and bodily autonomy, and we proved that this week with passage of the Respect for Marriage Act.”

By effectively neutralizing the Clinton-era Defense of Marriage Act, the legislation would recognize same-sex marriage at the federal level, adding additional protections to safeguard against the possibility that the constitutional right to marriage equality would be revoked by a court ruling. 

Should the Supreme Court issue a ruling allowing states to ban same-sex marriage, civil rights lawyer Dan Canon, who represented the Kentucky plaintiffs in the Obergefell case, told the Blade the Respect for Marriage Act would require states to recognize marriages of gay and lesbian couples performed in places where they are legal. At least, that is, in states where officials would follow the federal law.

“Unless and until the federal courts say it’s a violation of a government actor’s free exercise rights to have to recognize a marriage — which is a radical, batshit-crazy legal position, but still a possible outcome — marriages in places with halfway sane judges and/or executive branch officials should be fine,” Canon said.

“The RFMA (Respect for Marriage Act) gives the attorney general and private citizens a civil enforcement mechanism,” Canon said, but state government employees may nevertheless refuse to recognize the legal marriages of same-sex couples, and conservative courts could decide their religious objections and free exercise rights supersede laws like the Respect for Marriage Act. 

Additionally, Canon said despite the absence of any solid legal argument against it, one can imagine a case directly challenging the Respect for Marriage Act might be blessed by conservative federal district and circuit court judges, ultimately reaching the High Court whose conservative majority might rule, for example, that “this application of RFMA violates the free exercise rights of the clerk” or whomever is challenging the law. 

Such an outcome would spell “utter chaos,” Canon said, throwing into question not just whether a state — but also whether a county or town — will recognize same-sex marriages. Alternatively, a governor, without objection from conservative federal courts, could issue an executive order barring officials from recognizing legal same-sex marriages, and the Supreme Court could decline to weigh in on the matter, Canon said. 

A case challenging same-sex marriage could chart a similar path

Seven years ago, a Kentucky county clerk named Kim Davis denied marriage licenses to same-sex couples in violation of a federal court order pursuant to the Supreme Court’s ruling in Obergefell. When she was sued, Canon represented parties in the highly publicized litigation, which the Supreme Court declined to hear on appeal. 

Thomas and Justice Samuel Alito objected to the court’s refusal to consider Davis’s case, issuing statements in which they called her a “victim.” Canon said challenges to Obergefell are likely to turn on the same legal question at issue then: whether the free exercise of religion trumps marriage equality. 

And it’s not just the Supreme Court, with its 6-3 conservative supermajority, that would be more receptive to such arguments than it might have been in 2015, Canon said. 

“When we litigated that [Kim Davis] case, we were pretty sure that no court in America would say that Davis’s right to impose her religion on her constituents was somehow superior to anyone’s right to a marriage license,” he said. “Now? I’m not so sure.”

GOP lawmakers and the conservative legal movement have moved so far to the right in recent years Canon said that he expects Congressional Republicans, should they secure a majority in both chambers, will try to ban marriage equality in all 50 states, while the Supreme Court may well take a case challenging Obergefell regardless of how shaky its footing. 

“It is hard to imagine an ‘injury’ sufficient to confer standing in a way that would present a halfway decent case for the Court to revisit Obergefell based on an interpretation of the 14th Amendment,” Canon said. Still, the conservative majority justices are “advancing an ideological agenda” and “none of this has to make sense according to the playbook we’re used to.” 

A successful case would most likely begin with “a Christian nationalist attorney general or governor saying, ‘we won’t recognize marriage equality,’” and the Supreme Court might rule their refusal is lawful per the First Amendment, Canon said.

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U.S. Supreme Court

Alito renews criticism of the Supreme Court’s landmark marriage equality ruling

Obergefell decision allowed same-sex couples to marry around the country

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U.S. Supreme Court Justice Samuel Alito speaks at a conference in D.C. in December 2023 (YouTube screenshot)

Conservative U.S. Supreme Court Justice Samuel Alito on Tuesday renewed his criticism of the landmark 2015 ruling in Obergefell v. Hodges that established the nationwide constitutional right to same-sex marriage.

His remarks came in a 5-page order that was written in connection with the High Court’s decision not to hear Missouri Department of Corrections v. Jean Finney — a dispute over whether a juror’s position that “homosexuality, according to the Bible, is a sin” can be the basis for striking him from an employment discrimination case that was brought by a lesbian.

The conflict, Alito argued, “exemplifies the danger” he foresaw in the Supreme Court’s same-sex marriage ruling, which was decided by a 5-4 majority with Alito among the justices who dissented.

Specifically, Alito raised concern in his statement that “Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government.'”

“The opinion of the court in [Obergefell] made it clear that the decision should not be used in that way,” the justice wrote, “but I am afraid that this admonition is not being heeded by our society.”

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U.S. Supreme Court

Supreme Court declines to hear Ind. bathroom case

Transgender boy filed lawsuit against school district in 2021

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Tuesday declined to hear an Indiana case on whether schools can bar transgender students from using a bathroom that reflects their gender identity.

The justices in a brief order denied a request from a central Indiana school district to hear the case, which centers around a now-teenage trans boy, identified in court documents as A.C., who was barred from using the boys restrooms at his former middle school, the Hill reported.

Represented by the American Civil Liberties Union of Indiana, an adolescent trans boy and his parents filed a lawsuit against the Metropolitan School District of Martinsville in December 2021 for failing to provide him with access to bathrooms consistent with his gender in violation of his rights under Title IX, the law prohibiting sex discrimination in educational programs, as well as the Equal Protection Clause of the 14th Amendment. In an August 2023 opinion, the 7th Circuit Court of Appeals found the school district policy did likely violate the student’s rights under Title IX and equal protection.

“We’re thankful the court allowed this momentous victory for the transgender youth of Indiana to stand,” said Kenneth Falk, legal director of the ACLU of Indiana. “This case is about the fundamental right of every student to a safe and inclusive learning environment, and the policy at its core is an affront to the freedom of transgender youth to be themselves. We look forward to continuing to advocate for transgender Hoosiers and their families wherever their equality before the law is challenged.”

Chris Geidner, editor at Law Dork, reported the order protects trans students within the 7th U.S. Circuit Court of Appeals — which includes Indiana, Illinois and Wisconsin — and puts off any Supreme Court review of bathroom bans for some time, likely into 2025 or beyond.

Journalist Erin Reed noted:

“That means that many trans youth in Indiana and in several other states will be allowed to continue using the bathroom of their gender identity, as multiple circuit courts have found in favor of transgender plaintiffs. This does mean that those in the 11th Circuit states, so Florida, Alabama and Georgia, will have to wait longer for protections. But it says that the Supreme Court will not likely not take up bathrooms in coming months.”

The Supreme Court has a track record of declining cases involving trans protections. In 2021, the justices declined to review a ruling from the 4th U.S. Circuit Court of Appeals involving Gavin Grimm, a trans boy in Virginia.

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U.S. Supreme Court

Republican AGs ask Supreme Court to hear case on school gender policy guidelines

Appeals court found parents challenging the policy lacked standing

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The Supreme Court as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Photo Credit: Fred Schilling, The Supreme Court of the U.S.)

A coalition of 17 Republican state attorneys general filed an amicus brief urging the U.S. Supreme Court to hear a case challenging a school district’s gender policy guidelines, which allow students to use names, pronouns and restrooms or facilities consistent with their gender identity while prohibiting parental notification without the student’s consent.

The brief, led by West Virginia Attorney General Patrick Morrisey and filed on Jan. 4, opposes the decision by the 4th U.S. Court of Appeals, which found the parents challenging the guidelines did not have standing to sue the school board in Montgomery County, Md.

“This egregious policy completely sidesteps parents’ rights and severs them from having involvement in their child’s physical, emotional, mental and social well-being,” Morrisey said in a press release announcing the move.

“Any time any organization or institution seeks to hide what they do when our children are in their care, it’s a huge red flag,” he said. “Why would a school board encourage students to keep secrets from their parents?”

Advocates warn mandatory notification is effectively forced outing, which violates students’ constitutional right to privacy. The practice can also be dangerous; according to the 2015 Transgender Survey, 10 percent of trans people encounter physical violence from a family member and 15 percent are kicked out of or run away from their homes.

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