The good, the bad and the maybe

SCOTUS rules in school funding, Arkansas birth certificate cases, agrees to hear appeal in Colorado wedding cake case

 

Lisa Keen | Keen News Service
lisakeen@mac.com

 

Susan Sommer with Lambda Legal

The U.S. Supreme Court took dramatic action on three LGBT-related cases today (Monday, June 26), with results that could be described as bad, good and to-be-determined.

In a 7-to-2 decision, the court said Missouri could not exclude a nonprofit school from a state program just because the school is run by a church. LGBT activists had argued the school should be denied state funding because the school exercised its religious beliefs against homosexuality and against other religions in determining which children it would exclude.

But the majority of the court, including pro-LGBT moderates Anthony Kennedy and Elena Kagan, said the state’s denying funding to a school that “would have received [a state grant] but for the fact that Trinity Lutheran is a church” violates the Free Exercise clause of the First Amendment. The decision came in Trinity Lutheran v. Comer.

Lambda Legal had submitted a brief in the case, noting that the school’s policy allows discriminating against students and parents based on sexual orientation and even based on religion. So requiring the state to provide funds to the Lutheran school would have the effect of the state supporting discrimination based on sexual orientation and religion.

“When government provides aid to religious schools and other entities, it must do so with safeguards ensuring that these institutions neither discriminate based on religion nor use the funds to inculcate religion,” Lambda’s lawyers wrote.

That was the “bad” LGBT result. The “good” came in an unsigned (per curiam or “of a court in unanimous agreement”) decision that included three dissents (Neil Gorsuch, joined by Clarence Thomas and Samuel Alito) who appeared to object only to the method of the decision, not the result. The decision reversed an opinion of the Arkansas Supreme Court that had held that a legal spouse’s name could be omitted from her child’s birth certificate if she was not the biological mother or her “husband.”

The court issued the ruling without having heard arguments in the case.

The Pavan v. Smith opinion noted, “As this Court explained in Obergefell v. Hodges, the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” Obergefell was the 2015 decision that said states could not ban same-sex couples from obtaining marriage licenses the same as opposite-sex couples.

The Arkansas case involved two same-sex couples who used anonymous sperm donors to conceive their children. Even though the U.S. Supreme Court had in June 2015 struck down bans against same-sex couples marrying, the Arkansas health department refused to issue the children’s birth certificates with the names of both their parents. The Arkansas Supreme Court upheld that refusal.

“The Arkansas Supreme Court’s decision, we conclude, denied married same-sex couples access to the ‘constellation of benefits that the Stat[e] ha[s] linked to marriage’,” noted the U.S. Supreme Court’s decision. It noted that benefits such as birth certificates were among those the high court explicitly included in its Obergefell decision.

Susan Sommer, associate legal director for Lambda Legal, called the Pavan decision a win “for same-sex couples and their families across the nation.”

“The Arkansas Supreme Court’s decision flew in the face of Obergefell, undermining the dignity and equality of LGBT families and the government’s obligation to protect children,” said Sommer. “It was also an outlier; every other state that had considered this question got it right and ruled in favor of treating LGBT families equally. The historic ruling in Obergefell explicitly tells us that the spouses of birth parents, regardless if they are of the same sex or different sex, must be listed on the birth certificates of their children. Obergefell is crystal clear: marriage is marriage, and equal is equal. We congratulate our colleagues at National Center for Lesbian Rights on this great victory.”

Finally, the U.S. Supreme Court announced today it will review a lower court ruling in Masterpiece Cake v. Colorado, a case involving a baker who refused to sell a wedding cake to a same-sex couple, claiming it violated his religious beliefs.

Wedding cake baker Jack Phillips and his Masterpiece Cakeshop in Lakewood, Colo., agreed to sell various baked goods to a same-sex couple, but not a wedding cake. Phillips claimed his religious beliefs opposed marriage for same-sex couples.

The couple filed a complaint with the Colorado Civil Rights Division, which agreed that Phillips had violated the state law barring sexual orientation discrimination in public accommodations.

Phillips appealed through the state court system, which ruled against him. The Colorado Supreme Court refused to hear his appeal. But the Alliance Defending Freedom took the case to the U.S. Supreme Court last year.

The ADF’s petition to the high court argued that Phillips’ Christian belief “compels him to use his artistic talents to promote only messages that align with his religious beliefs.”

By ordering Phillips to create a wedding cake for a same-sex couple, says ADF, Colorado is violating the First Amendment’s guarantee of freedom of speech and “targets Phillips’ religious beliefs about marriage. … ”

James Essex, head of the ACLU’s national LGBT project, said, “The law is squarely on [the same-sex couple’s] side because when businesses are open to the public, they’re supposed to be open to everyone.”

“While the right to one’s religious beliefs is fundamental, a license to discriminate is not,” said Essex.

The case is similar to one out of New Mexico in 2013, Elane Photography v. Wilcox. In that case, the photographer, also represented by the Alliance Defending Freedom, said her religious objections to homosexuality should trump the state’s interests in eradicating discrimination against LGBT people. She said the First Amendment guarantee to freedom of speech should protect her ability to express her beliefs.

The Supreme Court declined to hear the photographer’s appeal.

The Masterpiece Cake case will likely be heard in October.

© 2017 by Keen News Service

 

 

—  Tammye Nash

Prejudiced SCOTUS justices? AFA calls on Ginsberg, Kagan to recuse themselves from marriage equality ruling

Ginsberg.Kagan.Wildmon

American Family Association President Tim Wildmon, right, has said that U.S. Supreme Court Justices Ruth Bader Ginsberg, left, and Elena Kagan, right, should recuse themselves from marriage equality cases because they have officiated at same-sex marriages.

The American Family Association has called on U.S. Supreme Court Justices Ruth Bader Ginsberg and Elena Kagan to recuse themselves from the marriage equality cases the court announced last Friday (Jan. 16), that it will be hearing appeals on, likely in April. Ginsberg and Kagan should not participate in the hearing, AFA President Tim Wildmon has declared, because they have both officiated as same-sex weddings, according to reports by the UK LGBT news site Pink News.

SCOTUS announced Friday that the court will accept appeals on four marriage equality cases — from Kentucky, Michigan, Ohio and Tennessee. The four cases are from the 6th Circuit Court of Appeals, the only federal appellate circuit court to rule against marriage equality since June 2013, when the Supreme Court struck down that portion of the federal Defense of Marriage Act that banned the federal government from recognizing same-sex marriages performed in jurisdictions that honor marriage equality.

Last October, the Supreme Court declined to hear appeals of cases in which other federal appellate courts had ruled in favor of marriage equality. And in December the the Supreme Court declined to extend a stay on a federal trial court ruling in favor of marriage equality in Florida, a decision that allowed legal same-sex marriages to begin there on Jan. 6. (A state judge who had also ruled in favor of equality but had also stayed her ruling lifted that stay on Jan. 5, so the first legal same-sex marriages in Florida were performed that day.)

Pink News notes that Ginsberg “has quietly officiated a number of same-sex weddings,” the first in 2013, while Kagan presided over the wedding ceremony of her former law-clerk and his partner last year. That, to Wildmon, indicates “Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court.”

But the Pink News posts also notes that the other justices’ previous actions could be seen as indicating bias as well: “However, Mr Wildmon’s claims have no discernible legal basis; similarly arbitrary claims could be made that as seven of the nine justices are themselves married to people of the opposite sex, the entire court should be recused.”

—  Tammye Nash

THE SUPREMES: Kagan & Co. Just 3 Days Away From Hearing Westboro’s Free Funeral Speech Claim

With three women on the bench for the first time, the Supreme Court's 2010-11 term will tackle a slew of cases predicated one on of our favorite issues 'round these parts: the First Amendment. Put a condom on in case you blow your wad, because there's also some gays mixed in!

CONTINUED »


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Queerty

—  John Wright

News: Isiah Thomas, Uganda, K-2, Marriage, Elena Kagan

 road Rumor has it that we might soon see a new album from Britney Spears.


Isiah
 road Isiah Thomas poses for the NOH8 campaign with his son

 road The first so-called "Jewish boat" participates in Amsterdam's pride parade, which featured about 80 other boats and a whopping total of 500,000 supporters.

 road A shirtless Joe Biden on a beach in the Hamptons.

 road Doctor who is researching to prevent homosexuality dodges a question about her experiments.

 road Gay activists: "Uganda's 'Anti-Homosexuality Bill,' which raised a worldwide uproar over its death penalty for gay sex, has stalled in parliamentary committee and it is unlikely to be passed in the current session."

 road Tori Spelling looks surprisingly plain without any make-up.

 road Tragedy on K-2: "Swedish climber and skier Fredrik Ericsson has fallen to his death on K-2 while trying to conquer the world's second highest peak."

 road You and I are a lot more like a SpongeBob Squarepants than you thought.

 road Gay sons for all mothers!

 road Suicides in the LGBT community are on the rise.

Kagan road Elena Kagan was sworn in by Chief Justice
Roberts today. While she'll be able to take on her justice duties
immediately, she won't be installed as a Justice until October 1. 

 road Possible explanation as to why the GOP isn't being as vocal about same-sex marriage as they have in the past: "'Every indicator that I have … generally speaking, is that economic growth and job creation are the tandem issues that will be the principal drivers of voter decision at polls,' Republican National Committee political director Gentry Collins told reporters Thursday. 'What I’m encouraging candidates to do is go out and run on an economic platform, a jobs platform.'"

 road Workshop organized by gay priest in California attempts to bring the church and the LGBT community together.

 road Channing Tatum does good by supporting a brain cancer charity.


Towleroad News #gay

—  John Wright

Elena Kagan Sworn In

Elena Kagan becomes the 112th justice to serve on the Supreme Court, succeeding Justice John Paul Stevens.
Daily News

—  John Wright

Kagan Confirmed; Historic Number of Women Now Seated on the Bench

Only moments ago, Solicitor General Elena Kagan was confirmed as the newest Associate Justice of the United States Supreme Court. The Senate voted 63-37 with five Republicans voting in favor of her confirmation and one Democrat voting against it.

HRC President Joe Solomonese released the following statement: “We commend the Senate for confirming Solicitor General Elena Kagan to the Supreme Court. She has demonstrated an understanding of the need for equality for all Americans and her record indicates she may be more familiar with how laws and policies affect the LGBT community than any previously confirmed Justice.”

On July 1, after thoroughly reviewing her record and her responses to questions posed by the Senate Judiciary Committee, HRC formally announced its endorsement of Kagan. In her testimony before the Committee, she indicated an understanding of the important issues facing many Americans, including those who are LGBT. Her opening statement pointed out what she saw as the command to every justice – the pursuit of Equal Justice Under Law – and argued for a “fair shake for every American.” She also took the opportunity to clarify a statement from her Solicitor General confirmation regarding the lack of a constitutional right to marry for same-sex couples as simply an assessment of where the law currently stands.

Kagan’s record shows she has worked on LGBT issues during many phases of her career. While in the Clinton White House, she was involved in LGBT issues ranging from expanding hate crimes legislation to preventing employment discrimination to increasing funding for HIV and AIDS prevention and treatment. As Dean of Harvard Law School, Kagan supported the LGBT community and passionately defended the school’s sexual orientation anti-discrimination policy when it conflicted with the discriminatory “Don’t Ask, Don’t Tell” law – a law she called “a profound wrong – a moral injustice of the first order.”

Kagan will be the fourth woman to serve on our nation’s highest court and the third woman sitting on the current Supreme Court, marking the highest representation of women on the Court in its history. In addition, she will be the only member of the current Court to have not previously served as a judge – which ends the recent historical anomaly of having a Court comprised entirely of justices that entered the Court from the bench. This increased diversity will help provide greater perspectives to the Court, particularly regarding how the law affects everyday people, including LGBT Americans.

Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts by visiting: www.HRC.org/EqualityInTheCourts.


Human Rights Campaign | HRC Back Story

—  John Wright

Elena Kagan Confirmed as 112th Supreme Court Justice

Kagan

The Senate has voted 63-37 to confirm Elena Kagan as the fourth woman to sit on the U.S. Supreme Court. Susan Collins, Lindsey Graham, Judd Gregg, Olympia Snowe, and Richard Lugar were the GOP members voting yes. Ben Nelson was the sole Democrat who voted no.

 


Towleroad News #gay

—  John Wright

Take Action Now to Put Elena Kagan on the Supreme Court

Tell your senators that Elena Kagan belongs on the Supreme Court! In the coming years, the Supreme Court will face many key decisions about the basic rights and freedoms of lesbian, gay, bisexual and transgender people. It has never been more critical that we put fair-minded individuals on the bench, because many of these decisions may come down to just one voice.

We need to make sure that Elena Kagan’s voice is heard in our nation’s highest court. Throughout her career, Elena Kagan has shown a commitment to fighting for equality and against discrimination.  In issuing HRC’s endorsement of Elena Kagan last month, HRC President Joe Solmonese noted:

Elena Kagan’s record indicates she may be more familiar with how laws and policies affect the LGBT community than any individual previously nominated to serve on the Supreme Court.

As the Senate prepares to vote on her nomination this week, senators need to hear from their constituents about Elena Kagan’s outstanding credentials and qualifications.

Click here to send a letter of support to your senator.


Human Rights Campaign | HRC Back Story

—  John Wright