The Roll Back of Marriage Equality Appears to Have Begun

In a very troubling move, the United States Supreme Court refused to take an appeal by the City of Houston, Texas that challenged the validity of a Texas Supreme Court ruling that held that cities and localities could refuse to grant equal spousal benefits to same sex spouses as those provided to heterosexual couples. While the action by the nation's highest court does not indicate which justices voted to deny granting certiorari, it is a safe bet that Trump appointee Neil Gorsuch fully supported throwing gays under the bus and ignoring the Equal Protection Clause of the U.S. Constitution.  Given that the original lawsuit was brought by a Christofascist organization, one can only wonder when spousal benefits for interracial married couples will come under attack.  In June, 2016, when he met with a who's who of Christofascist leaders, Trump promised to roll back marriage equality.  This ruling would appear to be a first step in delivering on that promise to those who are in reality hate group leaders. Sadly, same sex couples living in red states may well soon find the value of the marital rights being undermined. Here are details from Reuters:

The U.S. Supreme Court on Monday refused to hear Houston’s appeal of a lower court ruling that threw into doubt the city’s spousal benefits to gay married municipal employees, allowing a case that tests the reach of the landmark 2015 decision legalizing same-sex marriage nationwide to proceed.

The justices left intact a June ruling by the Republican-dominated Texas Supreme Court that revived a lawsuit backed by a conservative group aimed at blocking Houston from offering such benefits.

“This is an incredible early Christmas present from the U.S. Supreme Court for taxpayers,” Jonathan Saenz, president of Texas Values, a conservative group that advocates “biblical, Judeo-Christian values” that backed the lawsuit, said in a statement.

The high court’s action set no nationwide precedent but may give a boost to conservative legal efforts to limit the effects of its decision in the case Obergefell v. Hodges that the fundamental right to marry is guaranteed to gay couples under the U.S. Constitution.

The case will now proceed in a Texas state court, which could decide to stop the benefits offered by the fourth most populous U.S. city. Such a ruling again could be appealed to the nation’s top court.

Houston City Attorney Ron Lewis said that in the meantime the city’s policy to provide the benefits will remain in effect.

The Houston case began in 2013 when Jack Pidgeon, a local Christian pastor, and Larry Hicks, an accountant, sued the city after Annise Parker, a Democrat who was its first openly gay mayor, gave municipal spousal benefits such as health insurance and life insurance to same-sex married couples.

Pidgeon and Hicks, also backed by state Republican leaders, argued that the benefits violated the Texas constitution and state and local laws against same-sex marriage. A state trial court initially sided with them, but after the 2015 Obergefell decision, an appeals court reversed that ruling.

Lawyers for Pidgeon and Hicks told the state Supreme Court that the Obergefell ruling should be interpreted narrowly and did not require states to give taxpayer subsidies to same-sex couples any more than the U.S. Supreme Court’s 1973 Roe v. Wade decision legalizing abortion required states to subsidize abortions.

In June, the Texas Supreme Court threw out the ruling favoring Houston, agreeing that the Obergefell decision “did not hold that states must provide the same publicly funded benefits to all married persons,” and remanded the case back to the trial court to allow the men to make their arguments again. 

One can only hope that the lower court will ultimately rule against religious based bigotry. But then again, we are talking about Texas. Thankfully, for the next four (4) years Virginia's statewide offices will be held by Democrats and a bulwark against this kind of religious based animus and hatred.  My advice to those LGBT citizens living in red states is this: work like hell to elect Democrats and, if that fails and the roll back of marriage equality continues, consider moving to a blue state.  If you opt for the latter course of action, make sure you tell your family and employer why you are leaving and set the stage for economic consequences against anti-LGBT states.

The Supreme Court Shake-Up and The Future Of LGBT Rights

With the death of Antonin Scalia, the Supreme Court lost one of its most strident anti-gay justices.  Of course, Scalia didn't limit his bigotry to the LGBT community.  Women and minorities were other favorite targets for his discriminatory mind set. And while things are far better for LGBT Americans than even a few years ago, in states like Virginia, one can marry yet be fired the next day - even by state agencies and departments - simply because one is gay.  As a piece in Think Progress lays out, the next member of the Supreme Court is likely to be crucial to furthering an end to anti-LGBT discrimination.  Here are highlights:

The passing of Supreme Court Justice Antonin Scalia has sparked a political firestorm, with a new justice potentially casting deciding votes on issues ranging from abortion to campaign finance reform.  Less than a year after the Court’s historic decision in Obergefell v. Hodges, which ensured a constitutional right to marry for same-sex couples, LGBT Americans are presented with a path forward – again through the Supreme Court – that could expand equal rights beyond the context of marriage, to include employment, housing, and education, among other areas of life.

Though the Supreme Court already had a majority in favor of nationwide marriage equality before the current vacancy, it’s less clear that a majority exists in favor of the next wave of LGBT litigation, which seeks to ban discrimination against LGBT people through arguments surrounding the interpretation of existing federal nondiscrimination laws.

Currently, a majority of states and the federal government lack explicit protections from discrimination based on sexual orientation and gender identity.

LGBT litigator groups believe — and the Equal Opportunity Employment Commission and a growing number of courts have ruled — that because gender is at the core of anti-LGBT discrimination, such discrimination falls within existing sex protections.  If the Supreme Court sided with those arguments, the ramifications would be huge: discrimination against LGBT people would be clearly and undeniably illegal in vital areas of life, from workplaces to schools.

The question at the core of the discrimination cases differs from the one answered in the Court’s majority opinion in Obergefell, meaning that the same coalition of five justices, particularly the inclusion of Justice Anthony Kennedy, may not exist in the context of nondiscrimination protections.

Despite the fact that the Supreme Court has not yet grappled with these cases, LGBT people can file complaints with relevant courts and agencies and are seeing increasing success.  Until the Supreme Court rules definitively, however, a patchwork of protections could develop with more conservative courts and judges disregarding the growing legal consensus.

Most recently, after a transgender student faced discrimination at his local high school, a federal judge in Virginia ruled that Title IX, which bans discrimination based on sex in federally funded education programs, does not include gender identity.  The student’s attorneys are now appealing the judge’s ruling to the Fourth Circuit Court of Appeals and the Obama Administration has weighed in on the side of the student.

The route for LGBT nondiscrimination protections through the judicial branch is not a panacea.  LGBT people would only be able to gain protections from discrimination committed by private (non-governmental) entities in the areas of life where sex is already explicitly included in relevant civil rights laws.

For example, the federal government still lacks nondiscrimination laws based on sex in public accommodations, like restaurants and hotels, which means that legislative action is necessary to secure protections throughout daily life. 
For LGBT people and their families, the next wave of LGBT equality litigation could very well hinge on the upcoming Supreme Court nomination battle.  Protections in employment and housing could hang in the balance.  It’s possible that one of the remaining conservative justices could side with LGBT plaintiffs, but it is far from assured.

Today, it’s likely that there are four firm votes on the Court in favor of including LGBT people in existing nondiscrimination laws.  President Obama’s nominee could be the pivotal fifth vote.

The Growing Unpopularity of the U. S. Supreme Court

A new survey says some unpleasant things about the justices of the U. S. Supreme Court.  While there's lots of blame to go around, much of the criticism focuses on the justices blatant injection of their own political and personal beliefs into their decisions.  The chief offenders?  The far right ideologues like Scalia, Thomas and Alito who do not even make an attempt to appear open minded and unbiased.  Indeed, some 75% 0f the survey respondents accused the justices of a lack of impartiality.  And the problem is getting worse with the GOP members/conservatives on the Court, especially as the justices age and become more out of touch with the changing demographics and social mores of the nation.  Like it or not, it is not possible to turn the clock back to 1950 no matter how much Scalia and the "Uncle Tom" like Clarence Thomas strive to do so.  Yet these justices refuse to protect the rights of minorities and the powerless.  A piece in The Daily Beast looks at the Court's growing credibility problem and diminishing prestige.  Here are highlights:

You know the definition of a federal judge? It's someone who went to law school with his or her senator.  Yes, many judges are very smart people, but they don’t get appointed to the federal bench because they have the greatest legal minds. They get to be judges because they are competent and well connected.

So the New York Times–CBS News poll released Friday—finding that three out of four Americans believe Supreme Court justices have their decisions influenced by their personal and political beliefs—should come as no surprise.

This has been true for more than 200 years, but clearly something new has happened. A generation ago, two thirds of Americans approved of the way the court was doing its job. Today, according to the Times poll, the figure is 44 percent. A 23-point drop in an approval rating over 25 years doesn't just happen spontaneously—something causes it.

Two connected factors help explain the court's precipitous plunge.  The first is that this is the most entrenched court in American history. The average tenure of the five most senior Justices—Scalia, Kennedy, Thomas, Ginsburg and Breyer—is more than 21 years. This is the highest number ever recorded. Put another way, these five justices have served on average longer than five presidential terms.

This is important because justices, like all human beings, are products of their generation. It's one thing for a Justice's personal views to influence his or her decisions, but we have a court dominated by life-tenured justices whose views were shaped during a time when nearly a quarter of our population was not yet born.

The generation gap becomes clearer every day. For example, there is great anticipation as to whether the Supreme Court will weigh in on the question of gay marriage. But for most of the youngest quarter of Americans, this is not an issue at all. It is as obvious to today’s young Americans that gays should have the right to marry as it was to young Americans in 1960 that blacks and whites should be treated equally.

Which brings us to the second factor responsible for the court's loss of prestige. Over the past decade, the court has stopped doing its job, and the people have noticed.  There has always been a debate over the appropriateness of judicial review. In a democracy, how can we justify a decision by a group of unelected judges to strike down a law supported by the majority?

Implicit in this question is that the most troubling thing about judicial review is that judges are interfering with the will of the people. But what has happened over the past decade is that rather than protecting the minority, the Supreme Court instead safeguards the interests of the rich and powerful.

In the course of American history, the most infamous Supreme Court decisions have been those where the justices have sided with the economically and politically powerful to squash the hopes and aspirations of the comparatively weak. In the 19th century, for example, the court upheld racial segregation, denied blacks the right even to invoke the judicial process, and permitted states to prevent women from practicing law. In the twentieth century, it nullified efforts to protect the economically vulnerable and upheld internment of the Japanese during World War II. Each of these decisions now stands as embarrassment.

Beginning in the middle of the last century, however, the court began to safeguard the rights of the least powerful. In this sense, unlike the current court, the Justices were protecting the rights and interests of citizens who were not from their same economic or social class.  

Over the past decade, this orientation has been stood on its head, and the court has taken to safeguarding the interests of its own social class. The court has backtracked on abortion, saying it needs to protect women from themselves. It has prevented states from rectifying the injuries caused by centuries of racial discrimination. It has shielded pharmaceutical companies from having to pay damages to people who have been grievously injured by their products. And it has helped destroy the political process by making it possible for corporations and wealthy Americans to talk so loudly that they drown out everyone else.

Friday’s poll doesn’t reveal the existence of a new phenomenon, but the fact that people are now noticing an old phenomenon. And what this in turn reveals is simply that the justices are out of touch.

Over the past decade, this orientation has been stood on its head, and the court has taken to safeguarding the interests of its own social class. The court has backtracked on abortion, saying it needs to protect women from themselves. It has prevented states from rectifying the injuries caused by centuries of racial discrimination. It has shielded pharmaceutical companies from having to pay damages to people who have been grievously injured by their products. And it has helped destroy the political process by making it possible for corporations and wealthy Americans to talk so loudly that they drown out everyone else.

The health-care law provides the perfect illustration of this turnaround. According to recent polls, more than half of all Americans support complete or partial repeal of the mandated care act. If those polls are accurate, then there is no need for the Supreme Court to strike down the law. Come November, those people who want it repealed can do what they’ve always had the right to do—go to the polls and choose elected officials who share their views.

As for the court, proposals for reform go back well beyond FDR’s failed effort to pack the court in the 1930s. Ideas have included increasing the number of justices, so that young Americans have some representation; establishing term limits for justices; restricting the types of cases the Supreme Court can review; and even (heaven forbid) impeachment.

Justices have always had their decisions influenced by their beliefs and politics. But when most everyone shares the same cluster of political beliefs, that fact is invisible. Friday’s poll doesn’t reveal the existence of a new phenomenon, but the fact that people are now noticing an old phenomenon. And what this in turn reveals is simply that the justices are out of touch.

Candidly, as an attorney, I have almost zero respect for the far right justices.  They are turning the concept of justice upside down and gutting the constitutional rights of minorities and favoring the rich and powerful and those who are increasingly religious extremists when compared to society as a whole. 

Justice Alito Attends Confab at Regent University - Media Barred From Event

As readers may have noted, I have a real problem with the partisanship behavior of some of the United States Supreme Court justices who seem to have a penchant for attending extreme right wing gatherings which bar access to the media. Yes, the justices have private lives, but when one attends a function and speaks in the capacity of a Supreme Court Justice, the event ought to be open to the media - or at least the portion that includes the statements made by the sitting justice. Unfortunately, the far right members of the Court do not seem to grasp the need for transparency and the avoidance of the appearance of bias and/or impropriety. The latest episode of a justice's failure to avoid the appearance of bias/impropriety is Justice Samuel Alito who was the keynote speaker for a banquet at noted Christianist Pat Robertson's Regent University Law School - the Alma Mater of Bob "Taliban Bob" McDonnell, the current governor of Virginia. As the Virginian Pilot reports, members of the media were barred from Alito's speech. Here are highlights:

U.S. Supreme Court Justice Samuel Alito addressed about 600 people in Virginia Beach at a private event at Regent University School of Law.

Regent University is a Christian school founded by religious broadcaster and one-time Republican presidential candidate Pat Robertson. The university is celebrating the law school's 25th anniversary.

Alito was the keynote speaker on Saturday night at an anniversary banquet. The school did not allow news outlets to observe Alito's speech. School spokeswoman Mindy Hughes said Alito spoke about the importance of choosing the profession of law as a public service.

Alito is a former federal prosecutor who was appointed to the court by President George W. Bush. He was seated on the Supreme Court in 2006.

If the topic of Alito's speech was as advertised, why bar the media from hearing it? I subscribe to the rule that if one has nothing to hide, then they do not act as if they are hiding something. I suspect that it's safe to assume that Alito's remarks would have had a negative reaction if reported by the press and hence the media blackout.

Justice Thomas Failed To Report Wife's Income

I wrote the other day about the conflict of interest problems swirling around U. S. Supreme Court Justices Clarence Thomas and Antonin Scalia that raise questions about their participation in certain cases before the Court. Now the Los Angeles Times has more disquieting news about Thomas who I personnally believe needs to either resign or be removed from the Court. It seems that Virginia Thomas earned over $680,000 from conservative think tank the Heritage Foundation over 5 years, but the Supreme Court justice did not include it on financial disclosure forms. Call me cynical, but I suspect $680,000 is more than enough to influence one's mindset on a number of issues. Add to this income the money Virginia Thomas' far right organization has received from large anonymous donors and it is difficult to not believe that Justice Thomas is at a minimum guilty of the appearance of impropriety, if not far more. Here are highlights from the Times story:
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Supreme Court Justice Clarence Thomas failed to report his wife's income from a conservative think tank on financial disclosure forms for at least five years, the watchdog group Common Cause said Friday.
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Between 2003 and 2007, Virginia Thomas, a longtime conservative activist, earned $686,589 from the Heritage Foundation, according to a Common Cause review of the foundation's IRS records. Thomas failed to note the income in his Supreme Court financial disclosure forms for those years, instead checking a box labeled "none" where "spousal noninvestment income" would be disclosed.
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Virginia Thomas also has been active in the group Liberty Central, an organization she founded to restore the "founding principles" of limited government and individual liberty. In his 2009 disclosure, Justice Thomas also reported spousal income as "none." Common Cause contends that Liberty Central paid Virginia Thomas an unknown salary that year.
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Federal judges are bound by law to disclose the source of spousal income, according to Stephen Gillers, a professor at NYU School of Law. Thomas' omission — which could be interpreted as a violation of that law — could lead to some form of penalty, Gillers said. "It wasn't a miscalculation; he simply omitted his wife's source of income for six years, which is a rather dramatic omission," Gillers said. "It could not have been an oversight."
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Without disclosure, the public and litigants appearing before the court do not have adequate information to assess potential conflicts of interest, and disclosure is needed to promote the public's interest in open, honest and accountable government," Common Cause President Bob Edgar wrote in a letter to the Judicial Conference of the United States.
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Clarence Thomas has been the lone justice to argue that laws requiring public disclosure of large political contributions are unconstitutional.

Do Log Cabin Republicans Support the Sodomy Laws?

I frequently take the Log Cabin Republicans ("LCR") to task for their deranged support of the Republican Party in the face of all the objective evidence that the Party (i) will not ever be changed by their efforts, (ii) has strayed far from the fiscal policies they claim to support, and (iii) would make many of them potential felons again by re-enacting the sodomy laws. I do not know where many of the yahoos in the LCR live, but let me assure you that here in Virginia every gay was subject to potential arrest and a felony prosecution up until the decision in Lawrence v. Texas. Does anyone want to return to that scary status? Apparently some in the LCR do because they support John McCain who has pledged to appoint Supreme Court justice of a mindset that would overturn Lawrence v. Texas (and many other important decisions). For the life of me, I cannot understand the LCR. Are they just plain stupid or self-hating and seeking punishment for being gay? 365gay.com has a column that looks at this idiocy on the part of the LRC. Here are some highlights:

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I’m confused by Log Cabin Republicans. I see their booths at gay events, I even became friends with one or two in law school, but still, the idea of voting for a party that works against your equal rights amazed me.

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The next election may choose four years of economic and social policy, but it will also make one other important choice that will affect the rights of gays and lesbians for at least three generations to come: Supreme Court appointments. Today, the Court has four liberal justices, Ginsburg, Stevens, Souter and Breyer. And four conservative appointments who tow the party line, Alito, Roberts, Scalia and Thomas. Kennedy, a conservative appointment who waffles, has often been the necessary vote to tip the balance in the liberals’ favor.

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He was in the most recent Roe v. Wade challenge and again in Lawrence v. Texas. This is important to understand, Lawrence v. Texas is the same decision that allowed Log Cabin Republicans to have sex at all, legally, in many of their home states.

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If Obama becomes president he would, at least, be able to maintain the status quo, maybe put a woman or two up there, and create a few more years of an even fight for those hoping for progressive judgments. If McCain wins, two conservative appointments would shift the majority, leave us with six conservative votes, and little hope for the rights of gay men to engage in sexual intercourse legally. It’s not just gay men who will suffer.

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Log Cabin Republicans may advocate gradual legislative change, but when the very act of love that defines your personal identity (and membership in your group, I assume) is threatened, perhaps sacrificing a few years of small government is worth it.