U.S. Supreme Court
Obergefell lawyer discusses post-Roe fate of marriage equality
Dan Canon represented Ky. plaintiffs in landmark case
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.
U.S. Supreme Court
Supreme Court to consider bans on trans athletes in school sports
27 states have passed laws limiting participation in athletics programs
The U.S. Supreme Court on Thursday agreed to hear two cases involving transgender youth challenging bans prohibiting them from participating in school sports.
In Little v. Hecox, plaintiffs represented by the ACLU, Legal Voice, and the law firm Cooley are challenging Idaho’s 2020 ban, which requires sex testing to adjudicate questions of an athlete’s eligibility.
The 9th U.S. Circuit Court of Appeals described the process in a 2023 decision halting the policy’s enforcement pending an outcome in the litigation. The “sex dispute verification process, whereby any individual can ‘dispute’ the sex of any female student athlete in the state of Idaho,” the court wrote, would “require her to undergo intrusive medical procedures to verify her sex, including gynecological exams.”
In West Virginia v. B.P.J., Lambda Legal, the ACLU, the ACLU of West Virginia, and Cooley are representing a trans middle school student challenging the Mountain State’s 2021 ban on trans athletes.
The plaintiff was participating in cross country when the law was passed, taking puberty blockers that would have significantly reduced the chances that she could have a physiological advantage over cisgender peers.
“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” said Joshua Block, senior counsel for the ACLU’s LGBTQ and HIV Project. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” Block said.
He added, “Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”
“Our client just wants to play sports with her friends and peers,” said Lambda Legal Senior Counsel Tara Borelli. “Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.”
Borelli continued, “The U.S. Court of Appeals for the Fourth Circuit last April issued a thoughtful and thorough ruling allowing B.P.J. to continue participating in track events. That well-reasoned decision should stand the test of time, and we stand ready to defend it.”
Shortly after taking control of both legislative chambers, Republican members of Congress tried — unsuccessfully — to pass a national ban like those now enforced in 27 states since 2020.
U.S. Supreme Court
Supreme Court upholds ACA rule that makes PrEP, other preventative care free
Liberal justices joined three conservatives in majority opinion
The U.S. Supreme Court on Friday upheld a portion of the Affordable Care Act requiring private health insurers to cover the cost of preventative care including PrEP, which significantly reduces the risk of transmitting HIV.
Conservative Justice Brett Kavanaugh authored the majority opinion in the case, Kennedy v. Braidwood Management. He was joined by two conservatives, Chief Justice John Roberts and Justice Amy Coney Barrett, along with the three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson.
The court’s decision rejected the plaintiffs’ challenge to the Affordable Care Act’s reliance on the U.S. Preventative Services Task Force to “unilaterally” determine which types of care and services must be covered by payors without cost-sharing.
An independent all-volunteer panel of nationally recognized experts in prevention and primary care, the 16 task force members are selected by the secretary of the U.S. Department of Health and Human Services to serve four-year terms.
They are responsible for evaluating the efficacy of counseling, screenings for diseases like cancer and diabetes, and preventative medicines — like Truvada for PrEP, drugs to reduce heart disease and strokes, and eye ointment for newborns to prevent infections.
Parties bringing the challenge objected especially to the mandatory coverage of PrEP, with some arguing the drugs would “encourage and facilitate homosexual behavior” against their religious beliefs.
U.S. Supreme Court
Supreme Court rules parents must have option to opt children out of LGBTQ-specific lessons
Mahmoud v. Taylor case comes from Montgomery County, Md.
The U.S. Supreme Court on Friday ruled that public schools must give advance notice to parents and allow them the opportunity to opt their children out of lessons or classroom instruction on matters of gender and sexuality that conflict with their religious beliefs.
Mahmoud v. Taylor was decided 6-3 along party lines, with conservative Justice Samuel Alito authoring the majority opinion and liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson in dissent.
Parents from diverse religious backgrounds sued to challenge the policy in Maryland’s Montgomery County Public Schools when storybooks featuring LGBTQ characters were added to the elementary school English curriculum in 2022.
The school board argued in the brief submitted to the Supreme Court that “the storybooks themselves do not instruct about gender or sexuality. They are not textbooks. They merely introduce students to characters who are LGBTQ or have LGBTQfamily members, and those characters’ experiences and points of view.”
Advocacy groups dedicated to advancing free speech and expression filed amicus briefs in support of the district.
PEN America argued the case should be viewed in the context of broader efforts to censor and restrict what is available and allowable in public schools, for instance by passing book bans and “Don’t Say Gay” laws.
The ACLU said the policy of not allowing opt-outs is religion-neutral, writing that the Supreme Court should apply rational basis review, which requires only that the school district show that its conduct was “rationally related” to a “legitimate” government interest.
LGBTQ groups also objected to the challenge against the district’s policy, with many submitting amici briefs including: the National Center for Lesbian Rights, GLAD Law, Family Equality, COLAGE, Lambda Legal, the Leadership Conference on Civil and Human Rights, PFLAG., and the National Women’s Law Center.
The Human Rights Campaign did not submit a brief but did issue a statement by the group’s President Kelley Robinson: “LGBTQ+ stories matter. They matter so students can see themselves and their families in the books they read–so they can know they’re not alone.”
“And they matter for all students who need to learn about the world around them and understand that while we may all be different, we all deserve to be valued and loved,” she said. “All students lose when we limit what they can learn, what they can read, and what their teachers can say. The Supreme Court should reject this attempt to silence our educators and ban our stories.”
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