Category: supreme court

Supreme Court ethics hearings face tough, but necessary, road to reform

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Supreme Court Gifts

Supreme Court Ethics – The hearings, led by Senate Judiciary Committee Chair Dick Durbin, began this week and are perhaps the only vehicle, at this stage, to leverage public pressure that could lead to an ethics code for the nation’s highest court.

We might as well say right now that the Senate Judiciary Committee is unlikely to get a federal law passed that would set clear Supreme Court ethics for the ethically challenged U.S. Supreme Court.Supreme Court Gifts

Passing a Senate ethics bill would require 60 votes, which would require at least nine GOP lawmakers — who like the majority-conservative court operating just as it is — crossing the aisle to vote with their Democratic counterparts.

And the Republicans control the House, so a bill would certainly be D.O.A. there.

Also, legal experts aren’t in agreement about whether or not Congress has the constitutional authority to impose ethics standards on the court, or order the court to do so itself.
 
CST Editorial Review Board, May 3, 2023
 
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Will Obergefell Survive The New Supreme Court?

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Will Obergefell survive the new Supreme Court

Will Obergefell survive the new Supreme Court?

This is the greatest concern / fear of many in the LGBTQ community.  From the moment we learned of the heartbreaking death of Ruth Bader Ginsburg, this question became the most frequently asked by scholars, activists, lawyers and members of the LGBTQ community.  What started as a hypothetical question became real on Monday, November 23, 2020.Will Obergefell survive the new Supreme Court

What happened? 

The Attorney General for the state of Indiana petitioned The Supreme Court in the case of Box v. Henderson, which poses the question, “Does a married same-sex parent have the same rights as a heterosexual married parent in regards to the presumption of parentage which attaches to marriage?”  The presumption of parentage is the rule of law that creates a legal relationship between the spouse of a woman who gives birth to a child and the child to the spouse of the birth mother.  How does this effect the Obergefell decision, which made marriage equality the law of the land in June of 2015?  The answer to that question poses serious issues of equality and judicial conduct that we are just beginning to understand.

What did Obergefell say?

Will Obergefell survive the new Supreme Court?  First, we need to understand exactly what Obergefell said.  In the Obergefell decision, the court stated not only that all states must issue marriage licenses to same-sex couples, that other states must recognize same-sex marriage licenses and that same-sex couples are entitled to marriage, “on the same terms and conditions as opposite-sex couples.”  That means that all protections, including the marital presumption of parentage, shall redound to same-sex married couples. 

Judicial bias?

The arrival of Box v. Henderson at The. Supreme Court is questionable for a few reasons.  First, the case was last heard in the 7th Circuit Court of Appeals, where a conservative three judge panel unanimously upheld the protections conferred in Obergefell to the 8 plaintiff married couples who are the heart of this case.  But, they waited 3 years to issue an opinion.  The average time between when this court hears a case and when it issues its decision is 3 months.  If this case was handled in the normal time frame, it would have been before a Supreme Court that had already decided this issue twice before in favor of extending all marriage rights to same-sex couples.  But now the court make-up is different, which leads me to the second issue that raises concern: the current Supreme Court requested that the Indiana Attorney General make the Writ of Certiorari, the petition to hear the case, directly.  Why would a court that has twice decided an issue ask to rehear that same issue?

Will Obergefell survive the new Supreme CourtThe court first decided this issue in Obergefell, and then again in 2017 in the case, Pavan v. Smith.  In Pavan, the court held that states must issue birth certificates to same-sex couples in the same manner they issue them to opposite-sex couples.  This means that the presumption of parentage (once referred to as the presumption of paternity) would make the father of a child born to his wife, even if that child was conceived with donor sperm, the legal parent of that child.  The 8 plaintiff couples in the Box case are asking the court to have the presumption apply to their marriages the same way it applies to heterosexual married couples, even when there is not a biological connection between the spouse of the mother and the child. 

To answer the question, “will Obergefell survive the new Supreme Court?”, we must look to the strained strategy of the Indiana Attorney General, Curtis Hill.  Hill is falsely declaring that a state should have the ability to acknowledge the, “biological distinction between males and females.”  He is inferring that because only a man and a woman can biologically have a child together, only an opposite-sex married couple should have the protections that the martial presumption of parentage applies.  Furthermore, one plaintiff couple in the Box case includes a woman who donated her egg to her partner who then gave birth.  Both parents are “related” to the child under the law. 

States rights

This insidious “state’s rights” approach gives the new conservative majority on the Supreme Court, the ones who asked for this case to be heard in the first place, the ability to drive a wedge directly into the heart of marriage equality.  If the conservative Supreme Court sides with Indiana in Box, it will allow other states the ability to make distinctions between same-sex marriage and opposite-sex marriage.  It would mandate that same-sex parents go through a costly and invasive adoption process to secure their legal right as a family.  What the court would fail to realize is that the children would be the victims of this strategy.  Leaving a child in legal limbo only serves to create insecurity in that child’s family. 

Will Obergefell survive the new Supreme Court?  We will soon get a clue.  The new Supreme Court recently heard the case of Fulton v. The City of Philadelphia, which asked whether, among other questions, the government violates the First Amendment by defining a religious agency’s ability to participate in the state sponsored foster-care system mandating the inclusion of same-sex couples as foster parents.  This religious liberty approach to equality, I fear, will be the first sign of the new Supreme Court’s willingness to strip the rights of same-sex couples away. 

What can we do?

If there is anything to learn from this potentially disturbing road that the court appears to be heading down, it is to fight at your local level to ensure that protections are in place and that equality in marriage is preserved.  Do everything you can now to prepare for the worst: get your estate plan in place, petition for a step-parent adoption or birth order if your state allows and start telling all of your friends and family about what is going on. While we may have thought that battle was a thing of the past, we are still warriors.  We have always had to fight to protect our relationships and families, we know how to do it. 

Anthony M. Brown, Esq. – www.timeforfamilies.com November 28, 2020

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Indiana Asks the Supreme Court to Let It Strip Equal Parenting Rights From Same-Sex Parents

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Indiana strip equal parenting rights

The justices have shown interest in an Indiana case that could begin the rollback of marriage equality and Strip equal parenting rights from Same-Sex Parents

On Monday, Indiana Attorney General Curtis Hill asked the Supreme Court to strip equal parenting rights from same-sex parents. He did so at the request of the court, which is considering taking up his case. Hill implored the new conservative majority to rule that states may deny married same-sex couples the right to be recognized as parents of their own children. The case gives SCOTUS an opportunity to start chipping away at Obergefell v. Hodges by allowing states to withhold marital privileges from same-sex spouses. If the majority wants to begin eroding Obergefell, they will probably start here.Indiana strip equal parenting rights

What’s strange about this case, Box v. Henderson, is that it poses a question the Supreme Court has already answered—twice. The plaintiffs are eight married lesbian couples in Indiana who used a sperm donor to conceive. When a married opposite-sex couple uses a sperm donor, Indiana recognizes the birth mother’s husband as the child’s parent. When a married same-sex couple does the same thing, however, the state refuses to list the birth mother’s wife as the child’s parent. In both instances, the second parent has no biological connection to the child; Indiana’s decision to extend parental rights to the nonbiological husbands of birth mothers, but not the wives of birth mothers, is sheer discrimination.

On two different occasions, the Supreme Court prohibited this kind of mistreatment. In Obergefell v. Hodges, the court held that the Constitution entitles same-sex couples to marriage “on the same terms and conditions as opposite-sex couples.” Most courts understood that this requirement compelled them to provide the equal benefits to married same-sex parents. In Florida, for instance, a federal judge held that Obergefell “plainly requires” the state to list married lesbian couples as the parents of a child conceived with a sperm donor, since the state grants this right to married opposite-sex couples. (Florida’s Republican attorney general settled the case in apparent recognition that an appeal would be doomed.) When the Arkansas Supreme Court kept a birth mother’s wife off their child’s birth certificate, SCOTUS shot it down without even bothering to hear oral arguments. In 2017’s Pavan v. Smith, the court unequivocally ruled that states must issue birth certificates on equal terms to same-sex and opposite-sex couples. It announced a rule: If a state lists a birth mother’s husband as a parent despite his lack of biological connection, it must list a birth mother’s wife as a parent, too.

Slate.com by Mark Joseph Stern, November 24, 2020

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2 Supreme Court justices slam 2015 gay marriage decision

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Justice Clarence Thomas suggested the Supreme Court needs to revisit the gay issue because it has “created a problem that only it can fix.”

The Supreme Court, already poised to take a significant turn to the right, opened its new term Monday with a jolt from two conservative justices who raised new criticism of the court’s embrace of gay marriage.marriage equality

The justices returned from their summer break on a somber note, following the death of Justice Ruth Bader Ginsburg, hearing arguments by phone because of the coronavirus pandemic and bracing for the possibility of post-election court challenges.

The court paused briefly to remember Ginsburg, the court’s second woman. But a statement from Justice Clarence Thomas, joined by Justice Samuel Alito, underscored conservatives’ excitement and liberals’ fears about the direction the court could take if the Senate confirms President Donald Trump’s nominee for Ginsburg’s seat, Amy Coney Barrett.

Commenting on an appeal from a former county clerk in Kentucky who objected to issuing same-sex marriage licenses, Thomas wrote that the 5-4 majority in a 2015 case had “read a right to same-sex marriage” into the Constitution, “even though that right is found nowhere in the text.” And he said that the decision “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.”

Thomas suggested the court needs to revisit the issue because it has “created a problem that only it can fix.” Until then, he said, the case will continue to have “ruinous consequences for religious liberty.”

The court turned away the appeal of the former clerk, Kim Davis, among hundreds of rejected cases Monday.

Chicago.sun.times.com, October 5, 2020 by Mark Sherman and Jessica Gresko

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What’s at Stake For LGBTQ Families This Election – The Most Powerful Man in the World Thinks My Family Is ‘Less Than’

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LGBTQ families election

What’s at Stake For LGBTQ Families This Election.  The fight for equality isn’t over, and can most definitely still be lost.

What’s at Stake For LGBTQ Families This Election?  It was the worst of times; it was the worst of times. I’m an optimist at heart, but there were days this year when looking on the bright side seemed like the act of a lunatic. Every day I felt the heaviness in my heart.LGBTQ families election

Then, one morning in August, I walked down our dirt road with the dog. Mist was rising off Long Pond. When we got home, I found a small stone among the snapdragons and joe-pye weed in our garden. Someone had painted it with a rainbow. On one side were the words “You matter.”

This turned out to be one of a series of painted rocks that an anonymous person, or persons, have been leaving around my neighborhood. Some of the messages on them are generic, like “Maine: The way life should be.” But others seemed specific to their recipients. In front of the house of a neighbor with lots of children was a red rock inscribed with “Kids are great.” In the garden of a new arrival to our tiny Maine neighborhood: “Welcome to the lake.” By the house of a couple with a goofy black Lab: “Your dog is cute.”

It seemed as if a guardian angel had appeared among us, charged with the task of giving us hope at a time when many of us have never felt so lousy.

For me, a reminder that my big gay family matters right now was more than a pleasantry. It was like a message from heaven. For the last four years the message from Donald Trump has been the opposite: To him, we don’t matter at all. In so many ways, he’s made it clear he feels we’d be better off erased.

The messaging began the first week of his administration, when mention of L.G.B.T.Q. rights disappeared from the White House website.

This was just for starters. Later, he rejected plans to add questions about gender identity and sexual orientation to the 2020 census. He banned trans people from the military. On the anniversary of the Pulse nightclub shooting, he announced that his administration would roll back Obama-era health care protections for trans people. He prohibited embassies from flying the rainbow flag on flagpoles. For three out of four Junes he has failed to mention Pride Month — although one time he did take time out of his busy schedule to talk up National Homeownership Month.

LGBTQ families electionHis Department of Justice filed a brief with the Supreme Court endorsing the idea that employers had the right to fire L.G.B.T.Q. people just for being themselves. In the end, even the conservative-majority Supreme Court ruled against him. But the idea that the president of the United States went out of his way to put me, and people like me, at risk, is harrowing.

This August, at its convention, the Trump Republican Party re-endorsed its 2016 platform. You know, the one that sanctifies “traditional marriage” and condemns the Supreme Court ruling in favor of marriage equality. The one that describes the ruling defending a marriage like mine as “full of ‘silly extravagances.’”

Last week the administration filed a brief with the Indiana Supreme Court making the case that a Catholic school can fire a gay teacher who marries. It’s a First Amendment case, the administration says. Because persecuting L.G.B.T.Q. people is a form of free expression, I guess. Like cake frosting.

Also in the last week, the president released a shortlist of potential Supreme Court nominees for his second term, a list rife with anti-L.G.B.T.Q. and anti-civil rights individuals. The legal director of Lambda Legal, an organization that fights for the legal rights of L.G.B.T.Q. people, described the nominees as “terrifying.” One of them, Allison Jones Rushing, has ties to a group called the Alliance Defending Freedom, which has espoused the idea that homosexuality should be criminalized. The Southern Poverty Law Center calls it a hate group.

NYTimes.com, September 16, 2020 by Jennifer Finney Boylan 

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Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules

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The court said the language of the Civil Rights Law of 1964, which prohibits sex discrimination, applies to discrimination based on sexual orientation and gender identity.

The Supreme Court ruled Monday that a landmark civil rights law protects gay and transgender workers from workplace discrimination, handing the movement for L.G.B.T. equality a stunning victory.legal surrogacy in New York

The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The case concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether that last prohibition — discrimination “because of sex”— applies to many millions of gay and transgender workers.

The decision, covering two cases, was the court’s first on L.G.B.T. rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions.

Those decisions were grounded in constitutional law. The new cases, by contrast, concerned statutory interpretation.

Lawyers for employers and the Trump administration argued that the common understanding of sex discrimination in 1964 was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. If Congress wanted to protect gay and transgender workers, they said, it could pass a new law.

Lawyers for the workers responded that discrimination against employees based on sexual orientation or transgender status must as a matter of logic take account of sex.

The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation. The second was about a suit from a transgender woman, Aimee Stephens, who said her employer fired her when she announced that she would embrace her gender identity at work.

The cases concerning gay rights are Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623.

The first case was filed by Gerald Bostock, a gay man who was fired from a government program that helped neglected and abused children in Clayton County, Ga., just south of Atlanta, after he joined a gay softball league.

Washington State Supreme CourtThe second was brought by a skydiving instructor, Donald Zarda, who also said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”

Mr. Zarda died in a 2014 skydiving accident, and his estate pursued his case.

Most federal appeals courts have interpreted Title VII to exclude sexual orientation discrimination. But two of them, in New York and Chicago, have ruled that discrimination against gay men and lesbians is a form of sex discrimination.

In 2018, a divided 13-judge panel of the United States Court of Appeals for the Second Circuit, in New York, allowed Mr. Zarda’s lawsuit to proceed. Writing for the majority, Chief Judge Robert A. Katzmann concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

In dissent, Judge Gerard E. Lynch wrote that the words of Title VII did not support the majority’s interpretation.

“Speaking solely as a citizen,” he wrote, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.”

NYTimes.com, by Adam Liptak, June 15, 2020

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They were right: Same-sex marriage ‘changed everything.’ Well, by adding $3.7 billion to the economy.

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gay marriage $3.7 billion

When same-sex marriage was legalized in the United States in 2015, a lot of conservatives and religious folks predicted it would be the end of the world.  Instead, it added $3.7 billion to the economy.

Same-sex marriage = $3.7 billion.  In fact, on the day same-sex marriage was made legal, searches on the popular website Bible Gateway for “end times” reached an all-time high. Evangelical preacher Pat Robertson claimed that after the decision we’d all be having relations with animals.gay marriage $3.7 billion

“Watch what happens, love affairs between men and animals are going to be absolutely permitted. Polygamy, without question, is going to be permitted. And it will be called a right,” Robertson said.

Well, the world didn’t end and no one has married their cat … yet. But what did happen was a surge of economic activity.

A new study by the The Williams Institute found that since same-sex marriage was legalized nationwide in the United States in 2015, LGBT weddings have boosted state and local economies by an estimated $3.8 billion.

“Marriage equality has changed the lives of same-sex couples and their families,” the study’s lead author Christy Mallory, said in a statement. “It has also provided a sizable benefit to business and state and local governments.”

Since Massachusetts first legalized gay marriage in 2004, more than half a million same-sex couples have married in America.

The economic impact of same-sex marriage has created more than 45,000 jobs and generated an additional $244 million in state and local taxes. Over $500 million in revenue has been generated by friends and family members traveling to and from same-sex weddings.

upworthy.com, by Tod Perry, May 29, 2020

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Aimee Stephens, Transgender Plaintiff in Supreme Court Case, Dies at 59

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Aimee Stephens

Aimee Stephens, who was fired from her job in 2013 after she announced to her colleagues in a letter that she would begin living as a woman, won her case in the U.S. Court of Appeals.

Aimee Stephens, whose potentially groundbreaking case before the Supreme Court could have major implications for the fight for civil rights for transgender people, died on Tuesday at her home in Michigan. She was 59.Aimee Stephens

She died from complications related to kidney failure, according to the American Civil Liberties Union, which represented Ms. Stephens.

Ms. Stephens had been on dialysis for some time and entered hospice care in late April, according to the A.C.L.U.

Donna Stephens, Aimee Stephens’s wife, thanked supporters in a statement for their “kindness, generosity, and keeping my best friend and soul mate in your thoughts and prayers.”

Aimee Stephens, a former funeral director, was fired from her job in 2013 after she announced to her colleagues in a letter that she would begin living as a woman.

“What I must tell you is very difficult for me and is taking all the courage I can muster,” she wrote. “I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness.”

“I will return to work as my true self, Aimee Australia Stephens, in appropriate business attire,” the letter continued. “I hope we can continue my work at R.G. and G.R. Harris Funeral Homes doing what I always have, which is my best!”

Two weeks after receiving the letter, though, the funeral home’s owner, Thomas Rost, fired Ms. Stephens. Asked for the “specific reason that you terminated Stephens,” Mr. Rost said: “Well, because he was no longer going to represent himself as a man. He wanted to dress as a woman.”

The case went to court, and Ms. Stephens won in the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati. The case, which is currently pending before the U.S. Supreme Court, is one of three that are expected to provide the first indications of how the court’s new conservative majority will approach L.G.B.T. rights.

The National Center for Transgender Equality said it expected a decision from the court “perhaps as soon as Thursday.”

An A.C.L.U. spokesperson said Ms. Stephens’s estate would move forward with the case.

In October, when Ms. Stephens traveled to Washington for the Supreme Court hearing of her case, she said she was overwhelmed by the number of people demonstrating on her behalf.NYTimes.com, by Aimee Ortiz, May 12, 2020

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Supreme Court to Hear Case on Foster Care and Gay Rights

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Foster Care Gay

The justices will consider whether a city may exclude a Catholic adoption agency from its foster care system because it refuses to work with gay couples.

The Supreme Court on Monday agreed to decide whether Philadelphia may exclude a Catholic agency that does not work with same-sex couples from the city’s foster-care system.Foster Care Gay

The city stopped placements with the agency, Catholic Social Services, after a 2018 article in The Philadelphia Inquirer described its policy against placing children with same-sex couples. The agency and several foster parents sued the city, saying the decision violated their First Amendment rights to religious freedom and free speech.

A unanimous three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against the agency. The city was entitled to require compliance with its nondiscrimination policies, the count said.

Leslie Cooper, a lawyer with the American Civil Liberties Union, said the Supreme Court’s decision in the case would affect many families.

“This case could have profound consequences for the more than 400,000 children in foster care across the country,” she said. “We already have a severe shortage of foster families willing and able to open their hearts and homes to these children. Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse.”

In a Supreme Court brief, the agency agreed that the legal questions before the justices were enormously consequential.

“Here and in cities across the country, religious foster and adoption agencies have repeatedly been forced to close their doors, and many more are under threat,” the brief said. “These questions are unavoidable, they raise issues of great consequence for children and families nationwide, and the problem will only continue to grow until these questions are resolved by this court.”

The case, Fulton v. City of Philadelphia, No. 19-123, is the latest clash between anti-discrimination principles and claims of conscience. It is broadly similar to that of a Colorado baker who refused to create a wedding cake for a same-sex couple.

In 2018, the Supreme Court refused to decide the central issue in that case: whether businesses may claim exemptions from anti-discrimination laws on religious grounds. It ruled instead that the baker had been mistreated by members of the state’s civil rights commission who had expressed hostility toward religion.

The foster care agency relied on the decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in arguing that it too had been subjected to hostility based on anti-religious prejudice. It added that its free-speech rights would be violated were it forced to certify that same-sex couples are fit to be foster parents.

The city responded that the agency was not entitled to rewrite government contracts to eliminate anti-discrimination clauses.

“It has never been the case that religious entities, or entities with deeply held secular views, are constitutionally entitled to enter into government contracts and then defy any terms to which they object,” the city’s brief said. If the agency’s “sweeping constitutional claims were accepted,” the brief said, “they would cause mayhem in government contracting.”

NYTimes.com, By Adam Liptak, February 24, 2020

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Israeli Supreme Court rules same-sex couples be given access to surrogacy

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In an apparent rebuke to government, the Israeli Supreme Court justices say current law that excludes LGBT couples, harms ‘right to equality’ and gives the state one year to amend the existing legislation; LGBT organizations laud ‘historic decision’

In a unanimous verdict, the Israeli Supreme Court on Thursday ruled that same-sex couples and single men be given access to domestic surrogacy services.Israel Supreme Court

The five-justice panel declared that the current arrangements within the Embryo Carrying Agreements Law disproportionately “harms the right to equality” and the right of parenthood of these groups, and are therefore illegal.
Following a 4 to 1 vote, the court gave the state a maximum of 12 months to amend the current legislation.
Justice Uzi Vogelman wrote in his verdict the current Surrogacy Law inherently discriminates not only against LGBT community but against the concept of fatherhood as well.
“The current arrangement echoes the deep social construct that motherhood is preferable to fatherhood, and that a family made up of a male and female or only a female is much more ‘preferred,’ ‘deserving’ and ‘accepted’ than the more complicated forms [of family],” he wrote.
“This is a harmful message on the part of the administration, disregarding the basic duty of the state to respect all forms of life and all family units.”
 
ynetnews.com, by Yael Friedson, Amir Alon February 27, 2020
 
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