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


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

SCOTUS accepts appeal in trans student’s case

FILE - In this Aug. 25, 2015, file photo, Gavin Grimm poses on his front porch during an interview at his home in Gloucester, Va. The fate of North Carolina's new bathroom law could be determined by the 4th U.S. Circuit Court of Appeals in Richmond, which is expected to rule soon on Grimm's challenge. The high school student was born female but identifies as male, and says it's discriminatory to make him use the girls’ room or a single-stall unisex restroom. (AP Photo/Steve Helber, File)

Gavin Grimm (Steve Helber/Associated Press)


Lisa Keen | Keen News Service


In a development that could worry LGBT legal activists, the U.S. Supreme Court on Friday, Oct. 28, announced that it would hear an appeal that challenges a lower court decision in favor of a transgender student denied access to a school bathroom consistent with his gender identity.

The case, Gloucester v. Grimm, asks the court to decide the validity of a U.S. Department of Education interpretation of a federal law prohibiting discrimination based on sex in education. The Department says the law also prohibits discrimination based on gender identity.

The case comes to the high court from the 4th Circuit U.S. Court of Appeals, which had ruled in April that Title IX of the federal Education Amendments Act of 1972 —which prohibits discrimination based on sex by federally funded educational institutions — also prohibits discrimination based on gender identity.

The ACLU, which represents the transgender high school student in the case, put a positive spin on the announcement, saying it would give the group an opportunity to “tell the Supreme Court who Gavin and transgender kids are throughout the country.”

Gavin Grimm is a senior at a public high school in Gloucester, Va. Although identified as female at birth, he has felt since age 6 that he’s a male. A psychologist diagnosed Grimm with gender dysphoria, a condition in which a person strongly identifies as a gender different from his or her physical gender attributes.

His parents helped him change his name, secure treatment to transition to a male identity, and inform and seek help from school officials. Grimm 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.

ACLU senior staff attorney Josh Block said the school’s refusal to let Grimm use the boys’ restroom is “not only humiliating but also affects his education and his ability to participate in school life.”

In accepting Gloucester, the Supreme Court said it would address only two of three questions that the school district attorneys posed: First, they ask whether the courts should give “deference” to the Department of Education’s interpretation of the law, given that it came in an “unpublished agency letter.” And, second, they ask whether legal effect should be given to the Department’s interpretation of Title IX.

In its petition to the Supreme Court, the school district’s primary argument was that, when Congress passed Title IX, it intended the word “sex” to mean “nothing more than male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex.” It says the U.S. Department of Education’s interpretation of “sex” to include “gender identity” amounts to creating new law.

Block says the high court won’t necessarily reach the question of whether “sex” should include “gender identity.” It could stick to a very narrow ruling on whether the courts should defer to the Department’s interpretation of “sex.”

“The argument the other side is making,” said Block, “…is the unambiguous meaning is biological sex. In order to apply deference [to DOE], the court must first determine the regulation is ambiguous and then that [the Department’s interpretation was] a reasonable construction.

“The court could decide in a broad or narrow way but, at a minimum, it would reject the idea that one and only one meaning of the word sex is chromosomes or reproductive anatomy.”

Block said the court’s eventual ruling could have far reaching applications, affecting not only the sex discrimination language in Title IX affecting education but also in Title VII of the Civil Rights Act, affecting employment.

“It potentially has implications for any statutes protecting on the basis of sex,” he said. “It could decide on narrower grounds, but since 2000, the [lower] courts have kept up a steady drumbeat that discrimination against transgender people is discrimination based on sex. And this might be the opportunity for the U.S. Supreme Court to join that chorus.”

The high court does not typically jump at chances to make sweeping decisions and, to some extent, it is unusual that the court took this case because the ruling under appeal was a preliminary one, not one on the merits.

The 4th Circuit’s ruling was issued in response to a preliminary motion in Grimm’s lawsuit. The preliminary motion requested that Grimm be able to use his public high school’s boys’ restrooms until his overall lawsuit, arguing that Title IX does cover gender identity, can be resolved. The 4th Circuit’s decision sent the case back to the district court with instructions to reconsider the preliminary injunction in light of the appeals court’s ruling that Title IX prohibits discrimination based on gender identity.

The Gloucester school district appealed that preliminary ruling to the Supreme Court and, in August, the Supreme Court agreed to stay the 4th Circuit’s decision until SCOTUS could decide whether to take the case for review. Attorneys for Grimm argued against the court taking the appeal, saying that this case was “the wrong case at the wrong time,” and noting that there are no conflicts — yet — among the various federal appeals courts.

Grimm said in a telephone press call that he was disappointed that the Supreme Court accepted the appeal, “but I’m not afraid and not discouraged.”

While he said he feels like he has a “target on my back” and things are “very difficult and stressful,” he said he hopes his case means that “no other transgender student will have to go through what I’ve gone through.”

© 2016 Keen News Service. All rights reserved.

—  Tammye Nash

BREAKING NEWS: SCOTUS strikes down Texas law restricting abortions

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The U.S. Supreme Court has overturned the Texas law requiring clinics that provide abortions to have surgical facilities and doctors to have admitting privileges at a nearby hospital. The court issued its 5-3 ruling this morning (Monday, June 27), reversing the 5th Circuit Court of Appeals decision upholding the law in Whole Woman’s Health v. Hellerstedt.

NPR reports that conservative Justices Samuel Alito, Clarence Thomas and Chief Justice John Roberts dissented, while Justice Anthony Kennedy joined the liberal Justices Ruth Bader Ginsberg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan in the majority.

Breyer, writing for the majority, said the restrictive law would “vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.” Read Breyer’s entire opinion, Ginsberg’s concurring opinion and dissenting opinions by Thomas and Alito here.

—  Tammye Nash

Alabama’s Supreme Court Chief Justice Roy Moore suspended

Alabama Chief Justice Roy Moore

Alabama Chief Justice Roy Moore

Alabama’s Homophobe and Asshole in Chief, state Supreme Court Justice Roy Moore, has been suspended for refusing to acknowledge the U.S. Supreme Court’s ruling last summer recognizing marriage equality nationwide.

The Alabama Judicial Inquiry Commission, in a filing released Friday, May 6, wrote, “Chief Justice Moore flagrantly disregarded and abused his authority as the chief administrative officer of Alabama’s judicial branch.

As reported by The Washington Post, Moore faces six charges of violating judicial ethics, all stemming for his Jan. 6 order telling state probate judges — the ones who issue marriage licenses in Alabama — that they have a “ministerial duty” to abide by state law (even though a federal Supreme Court ruling overrides state law) limiting marriage to opposite-sex cases.

The commission ruled that Moore’s order violated not only the June 2015 Obergefell v. Hodges ruling, but two other court decisions as well.

As a result of the ruling, Moore is automatically suspended from the bench. The state Court of the Judiciary will ultimately decide whether Moore is guilty of violating judicial ethics.

Moore was removed from his seat as state Supreme Court chief justice in 2003 after refusing a federal court order to remove a Ten Commandments monument he had erected in the state judicial building in Montgomery. But the people of Alabama re-elected him 2012.

Last week’s ruling is a result of complaints filed by the Southern Poverty Law Center. In a statement following the ruling, SPLC President Richard Cohen said, “Moore has disgraced his office for far too long. He’s such a religious zealot, such an egomaniac that he thinks he doesn’t have to follow federal court rulings he disagrees with. For the good of the state, he should be kicked out of office. … We look forward to his trial in the Court of the Judiciary and his eventual removal from office once again.”

Moore, for his part, accused the Judicial Inquiry Commission of being influenced by LGBT rights advocates, saying “The JIC has chosen to listen to people like Ambrosia Starling, a professed transvestite, and other gay, lesbian and bisexual individuals, as well as organizations which support their agenda. We intend to fight this agenda vigorously and expect to prevail.”

Starling, the Post explained, is a self-described drag queen who Moore has singled out before, suggesting that she suffers from mental illness and alleging that she performed an “illegal” wedding ceremony. A local Unitarian Universalist minister, the Rev. Fred Hammond, disputed that latter claim in a blog post late last month, saying that it was he who performed the cerem

—  Tammye Nash

Obama nominates Merrick Garland for Supreme Court


Judge Merrick Garland

President Barack Obama has named D.C. Circuit Court Judge Merrick Garland, 63, as his nominee to replace Antonin Scalia on the Supreme Court. Republicans have vowed not to consider any Obama nominee during the election year and said the next president should make the appointment.

That could be a risky gamble for Republicans. It assumes they win in the fall.

Should they win, however, President Trump might decide to turn the nomination process into a reality show. Ten judges compete to see who becomes the next Supreme Court justice.

“What would you do if protesters interrupted a campaign rally?” President Trump would ask.

“Calm down the crowd first,” the first contestant would answer.

“You’re fired,” President Trump would say. “Get ’em outta here.”

Or maybe, as he has suggested in the past, he’d appoint his sister, Maryanne Trump Barry, a pro-choice federal judge.

On the Democratic side, President Bernie Sanders would appoint someone like Judge Phyllis Frye, a transgender judge from Houston, who pioneered trans rights in Texas.

Or President Clinton might nominate constitutional law scholar Barack Obama. Or maybe Michelle Obama. Or Wendy Davis.

So Judge Merrick Garland? He’s moderate. He’s the best they’re going to get.

Hold hearings on the nomination.

—  David Taffet

Supreme Court sides with lesbian mom seeking adoption rights

Supreme-Court-BuildingIn a decision issued today (Monday, March 7), the Supreme Court reversed a decision by Alabama’s highest court denying an adoption by the non-bio mom in a same-sex couple from another state.

The full text of the decision can be found here.

The plaintiff, V.L., and the defendant, E.L, were together for almost 17 years and had three children before splitting up in 2011. The couple had temporarily moved to the state of Georgia so that V.L. could formally adopt the children.

But the Alabama court argued that Georgia had erred in allowing the non-biological mother to adopt the children without first terminating the parental rights of the biological mother.

Human Rights Campaign Legal Director Sarah Warbelow praised the ruling, saying, “Any attempt to deny legal rights to our families is reprehensible, and this ruling established that bias and discrimination cannot be allowed to undermine the bond between LGBT parents and their children.”

“Our client was in a long-term same-sex relationship in which she and her partner planned for and raised three children together, using donor insemination. To ensure that both had secure parental rights, our client, the non-biological mother, adopted the couples’ three children in Georgia in 2007,” explained Kate Kendall, executive director of National Center for Lesbian Rights, which represented V.L. in the case. “When the two later broke up, the other mother kept our client from visiting their children and argued that Alabama should not recognize the Georgia adoption.”

It is the first major Supreme Court decision impacting LGBT rights ruling since last summer’s Obergefell decision.

—  James Russell

Editorial Cartoon • 02.19.16


—  Dallasvoice

Supreme Court Justice Antonin Scalia dead at 79

Antonin_ScaliaOfficials in Presidio County in West Texas have confirmed U.S. Supreme Court Justice Antonin Scalia died this morning, Saturday, Feb. 13, at a ranch outside of Marfa. He was 79.

Scalia was appointed by President Ronald Reagan to the bench in 1986 and known for his conservative views on issues ranging from abortion to same-sex marriage.

He was one of four dissenting justices in the Obergefell decision legalizing marriage equality last year. In his dissent, he wrote the majority “invent[ed] a new right and impose[d] that right on the rest of the country.”

He praised “the debate over marriage for same-sex couples [as a display of] American democracy at its best. But he also lamented the 5-4 decision for “ending the national debate.”

“Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views,” Scalia wrote. “Win or lose advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.”

Scalia was a familiar voice of dissent in other notable LGBT cases. In the case Lawrence v. Texas declaring state sodomy bans unconstitutional, he wrote the court had “taken sides” in the culture wars.

“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity [are now] called into question. The court has largely signed on to the homosexual agenda,” Scalia wrote.

Scalia stood by the comparison when asked by a student in 2012.

“If we cannot have moral feelings against homosexuality, can we have it against murder?” Scalia replied. “Can we have it against other things? I don’t apologize for the things I raise.”

In a discussion between Scalia and Justice Ruth Bader Ginsburg at George Washington University in Washington, D.C. last February, Scalia asked the audience not to paint him as “anti-gay.”

His opinion in the Obergefell this spring will not pertain to the “substance” of whether couples should have the right to marry, but the issue of legal interpretation.

“That isn’t the issue,” he said. “The issue is who decides. Should these decisions be made by the Supreme Court without any text in the Constitution or any history in the Constitution to support imposing on the whole country or is it a matter left to the people?”

But his death also has another clear impact: will President Obama appoint a successor?

Not likely, wrote Emily Farris, assistant professor of political science at Texas Christian University in Fort Worth.

“I think it will be very difficult for Obama to get a nomination done in the midst of an election year. Even before Scalia’s death, people were predicting the 2016 presidential election could lead to a cataclysmic reshaping of SCOTUS,” Farris wrote.

Check out instant tea for the latest updates and commentary.

—  James Russell

UPDATE: Supreme Court Justice Antonin Scalia dead at 79


Supreme Court Justice Antonin Scalia died last night, Friday, Feb. 12, of natural causes at a ranch near Marfa. He was 79.

Check instant tea for more information as news comes in.

—  James Russell

T.D. Jakes on the marriage equality decision: You may be surprised

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The Rev. T.D. Jakes

I have never considered the Rev. T.D. Jakes to be a big supporter of LGBT rights. I am not saying that this speech indicates he is. But I applaud him for preaching on the necessity of separating church and state, and the fact that the U.S. Supreme Court makes its rulings, as it should, based on civil law, not biblical scripture.

“The world is gonna be the world, and the church is gonna be the church and you have to understand the difference. The Supreme Court is there to make a decision based on constitutional rights and legalities that fit all Americans. They are not debating Scripture.”

—  Tammye Nash