Have North Carolina Republicans Set the Stage for a Huge LGBT Victory?

The United States Supreme Court has long danced around the issue of whether or not sexual orientation (and gender identity) comprise a class of individuals entitled to the application of the "strict scrutiny" standard when anti-LGBT laws are challenged.  The closest the Court has ever come to a definitive answer was in the 1990's case of Romer v. Evans.  Sadly, while reaching the right result, the Court dodged addressing the strict scrutiny question.  Now, North Carolina's new anti-LGBT law may have set the stage for the Court to finally address the question head on.  If the North Carolina statute is ultimately struck down, North Carolina Republicans may find much to their chagrin - and the rage of the Christofascists to whom they have prostituted themselves - that they set the stage for a major LGBT rights ruling.  A column in the Washington Post looks at the situation and the possible outcomes.  Here are excerpts:

What happened in North Carolina may have been startling for its swiftness, but it was a classic countermove in the modern conflict over gay rights. When liberal cities enact laws to protect LGBT people, conservative state governments respond by preempting them.

North Carolina is now the third state in the last five years to ban local anti-discrimination ordinances after a city tried to protect LGBT people. This is a maneuver of questionable constitutionality.

“They jammed this through with virtually no notice,” says Shannon Minter, legal director of the National Center for Lesbian Rights. “Everything about this process stinks. It’s got all the hallmarks of a bill that’s based on animus.”

Arkansas lawmakers passed a similar law last year, after the city of Fayetteville sought to prohibit bosses, landlords, and shopkeepers from discriminating against LGBT people in a bill that was rescinded soon after. Tennessee’s legislature also passed a law in 2011, after Nashville and Davidson County cut ties with businesses that discriminated against LGBT workers.

Though North Carolina’s law goes the furthest — it limits what bathrooms transgender people can use — what these three measures have in common is that they were all engineered to test the limits of what the U.S. Constitution allows. The 14th Amendment promises equal protection under the law, meaning that governments can’t single out and punish groups of people for no good reason. But the Supreme Court has been consistently vague about what that promise means for LGBT people.

This latest controversy may finally clear some things up.  On Monday, the ACLU, Lambda Legal, and Equality North Carolina filed a lawsuit arguing that North Carolina's new law “violates the most basic guarantees of equal treatment and the U.S. Constitution." Legal experts say this will be a tough case to litigate, but if it proceeds, it has the potential to set a landmark precedent. It may force the Supreme Court to confront a question that for decades it has stubbornly refused to answer: What does the Constitution actually imply about gay rights?

These anti-anti-discrimination laws share a famous common ancestor. In 1992, voters in Colorado approved a constitutional amendment prohibiting any agency, school district, or local government from protecting “homosexual, lesbian or bisexual” people. This invalidated the LGBT anti-discrimination ordinances in Denver, Aspen and Boulder. Those cities promptly sued the state, arguing that the measure violated the Equal Protection clause of the 14th Amendment.

That lawsuit, known as Romer v. Evans, reached the Supreme Court in late 1995 and resulted in a landmark victory for gay rights the next year. But everything happened in a very strange way.

When laws discriminate against certain kinds of people, though, the courts become much more suspicious. Lawyers often speak of a three-tiered system. At the top are categories like race, national origin or religion. Laws that explicitly discriminate against race are practically impossible to justify and hardly ever survive judicial review. Even laws that do not mention race can be struck down if it can be proven that they were enacted with discriminatory intent.

To a lesser extent, the courts are also wary of laws that discriminate by sex. This middle tier of review is called “intermediate” or “heightened” scrutiny, and it’s a relatively recent development. In 1976, the Supreme Court struck down an Oklahoma law that allowed young women but not young men to buy certain kinds of weak beer. Oklahoma tried argue that young men were more likely to drive drunk, so they shouldn’t be allowed to buy beer until they were 21. But the court didn’t find that reason convincing enough for the law to stand.

For everyone else, courts use the extremely lenient “rational basis” standard. Practically speaking, nearly any law can clear this low bar. In the words of New York University constitutional law professor Kenji Yoshino, this is essentially “a free pass for legislation.”

Laws that discriminate against sexual orientation tend to be judged at this lowest level of scrutiny. Courts generally don’t believe that gays and lesbians are a class of people who deserve special protection under the Constitution. For these reasons, it’s extremely hard to win a case just by saying that a law is unfair to LGBT people.

Except that’s exactly what happened in 1996, when the Supreme Court struck down Colorado’s anti-LGBT law in Romer v. Evans.

Civil rights groups had been hoping the court would recognize that sexual minorities, like racial or religious minorities, deserved extra protection under the Constitution beyond rational basis review. But the Supreme Court refused to elevate LGBT people. Instead, Justice Anthony Kennedy said that Colorado’s law failed even the flimsy rational basis standard.

Recent legal victories for gay rights have danced around this issue. In Lawrence v. Texas, the Supreme Court struck down anti-sodomy laws not because they discriminated against gay people, but because these laws intruded on the “realm of personal liberty.”

“The petitioners are entitled to respect for their private lives,” Kennedy wrote in the majority opinion. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

In the gay marriage cases, United States v. Windsor and Obergefell v. Hodges, the court used hybrid reasoning that blended a number of concepts in the Constitution, among them the rights to liberty and equal protection under the law. But again, the opinions fell short of recognizing sexual orientation as a suspect class. Obergefell in particular has been criticized by legal scholars for being muddy and confusing.

In Romer v. Evans, the Supreme Court made a big deal over how Colorado had singled out gay people, by name, in a piece of legislation. But the language of the Tennessee law is completely neutral — essentially, it freezes discrimination law until the state says otherwise. In practice, of course, the law closes the door on LGBT people, who were starting to win anti-discrimination protections in some liberal Tennessee cities.

Civil rights groups hoped that courts would see through the subterfuge in the Tennessee law. They argued that the measure was clearly motivated by anti-gay animus, violating the Constitution’s Equal Protection clause. But a lawsuit against Tennessee failed; in 2014, an appeal court dismissed it on a technicality, ruling that the plaintiffs couldn’t prove they suffered any harm from the new law.

The big question remained unanswered. Would the Supreme Court finish what it started in Romer v. Evans?

The lawsuit in North Carolina urges courts to finally treat gender identity and sexual orientation as suspect or quasi-suspect classifications under the Equal Protection clause. This has long been a goal in the gay rights community. It would mean that politicians could no longer pass laws that target LGBT people without some serious explaining.

There are other claims in the lawsuit as well. The transgender bathroom provisions in North Carolina’s law may run afoul of Title IX, the federal law that prohibits sex discrimination in schools. According to the Department of Education’s interpretation of the law, Title IX also bans transgender discrimination, which the DOE considers a form of sex discrimination.

North Carolina’s new law is an evolved cousin of Colorado’s law. Both were created to stymie local LGBT protections, but Colorado’s law singled out gay people by name, while North Carolina’s is more coy. So if the Supreme Court wants to strike down North Carolina’s law for disadvantaging gay people, it will have to use more firepower than it did in Romer v. Evans. It may finally have to come out and say what it has been hinting at for years.

If gender identity and sexual orientation became recognized as a protected classes, deserving of heightened judicial scrutiny, the repercussions would be enormous. Not only would it inflame the struggle between religious rights and gay rights, but it would call into question many of the anti-LGBT bills being considered around the nation.

The North Carolina lawsuit has a long road ahead of it. But it has the makings of a milestone case. If it ever reaches the Supreme Court, it will force the justices to tackle an issue that they have repeatedly hemmed and hawed over.

The court has ruled that bans on sodomy are unconstitutional. It has ruled that bans on same-sex marriage are unconstitutional, too. But is it constitutional for a law to discriminate against LGBT people? The Supreme Court has been mysterious on that subject for a very long time.

Virginia AG Seeks to Put State on Right Side of History

This morning I note that that Virginia Attorney General Mark Herring planned to announce today that he will not be defending Virginia's gay marriage bans, including the heinous Marshall-Newman Amendment enacted with the backing of - and false campaign advertisements of - the Christofascist at The Family Foundation and their political whores in the Virginia GOP.   Not only did Herring make the announcement, but his office also filed new pleadings in Bostic v. Rainey which is pending in the U.S. District Court for the Eastern District of Virginia.  Here are excerpts from a post I wrote today on The Bilerico Project:

As the Washington Post and many other news outlets began reporting this morning, in a stunning turn of events Virginia Attorney General Mark Herring announced today that his office would no longer be defending Virginia's bans on same-sex marriage, which are currently being challenged in the U.S. District Court for the Eastern District of Virginia in the case of Bostic v. Rainey. 

Furthermore, Attorney General Herring indicated that he would be advocating for Virginia's same-sex marriage bans to be ruled unconstitutional. I have previously written about this case here on The Bilerico Project since I know the plaintiffs personally and since some of the attorneys representing them are former law partners of mine. 

In a memorandum of law filed today on Bostic, Attorney General Herring first cites the precedents for attorneys general not defending laws they deem to be unconstitutional. These precedents include actions taken by among others two past Republican attorneys general of Virginia, Ken Cuccinelli and Jerry Kilgore. Thereafter, Herring acting through Solicitor General of Virginia, Stuart A. Raphael, lays out why Virginia's gay marriage bans are unconstitutional. 

The arguments cite among other cases, Loving v. Virginia, United States v. Windsor, and parallel arguments made in the recent rulings striking down marriage discrimination amendments in Utah and Oklahoma. While Republicans and religious extremists at The Family Foundation are condemning Herring's action, I suspect that most have not even read the memorandum of law filed with the Court. Here are excerpts from the legal memorandum filed today:

Having duly exercised his independent constitutional judgment, the Attorney General has concluded that Virginia's laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution. The Attorney General will not defend Virginia's ban on same-sex marriage, will argue for its being declared unconstitutional, and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued to facilitate a decision on the merits, consistent with the rule of law. Rainey will continue to enforce the disputed provisions of Virginia law, in her official capacity as State Registrar of Vital Records, until the judicial branch renders a decision that conclusively adjudicates the question.

The issue in this case is whether Virginia's laws denying the right to marry to same-sex couples, Va. Const. art. I, § 15-A; Va. Code Ann. §§ 20-45.2, 20-45.3 (2008), violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV. If a conflict exists, the United States Constitution must prevail; it is the "supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2.

When the Attorney General, exercising his independent constitutional judgment, concludes that a provision of the Virginia Constitution (or Act of the General Assembly) violates the federal Constitution, he is not duty bound to defend it. Although the practice is rare for Virginia Attorneys General, it is not unprecedented. Last year, former Attorney General Kenneth T. Cuccinelli, II, declined to defend a constitutional challenge to the law establishing the Opportunity Educational Institution, 2013 Va. Acts ch. 805.1 In 2003, former Attorney General Jerry W. Kilgore, on behalf of the Commonwealth, joined an amicus curiae brief with 43 other States, explaining that an attorney general is duty-bound to challenge a statute he believes to be unconstitutional.

[T]he Attorney General has concluded, for the reasons set forth below, that the constitutionality of Virginia's ban on same-sex marriage cannot be defended under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Defendant Rainey, however, will continue to enforce the law until the important constitutional question presented can be adjudicated.

The Supreme Court has consistently ruled that marriage is a fundamental right protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. It is among the rights "'of basic importance in our society,' rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect."

It is no exaggeration to say that marriage is "the most important relation in life." Because marriage is a fundamental right, a state law that "significantly interferes" with that right is subject to "critical examination," not review for whether a mere "rational basis" supports it.

Virginia's law denying the right to marry to same-sex couples cannot escape strict scrutiny on the theory that only "traditional" marriage is "fundamental." The nearly identical argument was rejected in Loving v. Virginia, 388 U.S. 1 (1967) . . . Loving teaches that the Fourteenth Amendment protects the fundamental right to marry even if the way in which it is practiced would have surprised the framers or made them uncomfortable.

[T]he issue here is not whether there is a "fundamental right to same-sex marriage," but whether the fundamental right to marry may be denied to loving couples based solely on their sexual orientation.

Loving cannot be distinguished on the ground, advanced by prior government counsel, that the "core purpose of the Fourteenth Amendment was to guarantee to African Americans equal fundamental rights," a purpose not implicated by Virginia's ban on same-sex marriage. (Doc. 65, Def.'s Reply Mem. at 4.) The Supreme Court rejected such limiting constructions in Zablocki:

The Court's opinion [in Loving] could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry...

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. 434 U.S. at 383-84 (emphasis added) (internal citations omitted).

All individuals means all individuals. The "individual's interest in making the marriage decision independently is sufficiently important to merit special constitutional protection." Id. at 404.

Tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia's ban on interracial marriage. As Lawrence held, "'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.

The "responsible procreation" and "optimal child rearing" rationale . . . . is both offensive and without legal merit.

First, that rationale tells all other couples -- whether same-sex or heterosexual couples unable or uninterested in having children the "natural" way -- that their relationships are somehow less worthy. Windsor, 133 S. Ct. at 2694. It also "humiliates tens of thousands of children now being raised by same-sex couples," making it "even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id.

Second, the rationale cannot justify Virginia's ban because it is illogical to think that allowing same-sex marriage will somehow make heterosexual couples less likely to marry and have children.

Third, the rationale would justify denying marriage not only to same-sex couples, but to "the infertile, the elderly, and those who simply do not wish to ever procreate."

Finally, the rationale reduces the institution of marriage to an instrument for "responsibly" breeding "natural" offspring. 22 It ignores that marriage is "essential to the orderly pursuit of happiness by free men," Loving, 388 U.S. at 12, an enduring union between two people described so eloquently in cases like Griswold v. Connecticut, 381 U.S. 479 (1965), and Turner v. Safley, 482 U.S. 78.

Loving rejected the same arguments offered in support of the marriage ban here. "Those who cannot remember the past are condemned to repeat it." George Santayana, The Life of Reason: or the Phases of Human Progress 284 (1920). It is worth observing, therefore, that the arguments raised in Virginia's brief in Loving to defend Virginia's ban on interracial marriage are almost identical to the arguments that have been offered to support Virginia's ban on same-sex marriage... The injustice of Virginia's position in Loving will not be repeated this time.

The arguments for applying heightened scrutiny are compelling, as the United States correctly explained at length in its merits brief in Windsor. For example, "[g]ay and lesbian people have suffered a significant history of discrimination in this country. No court to consider the question has concluded otherwise, and any other conclusion would be insupportable."26 We also note that the claim that a same-sex-marriage ban does not discriminate on the basis of gender, on the theory that it applies "equally" to men and women, sounds disturbingly like Virginia's theory in Loving that its interracial marriage ban did not discriminate on the basis of race, "because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage," 388 U.S. at 7-8.

When core civil rights are at stake, as in this case, the judiciary has a constitutional duty to act. And it should act now.

Having reviewed the rulings in United States v. Windsor, the recent Utah and Oklahoma marriage cases, and the 9th Circuit ruling calling for heightened scrutiny for discrimination based on sexual orientation, Herring is correct on the analysis and the case law. 

Now all eyes will be on the U.S. District Court and the hearing on January 30, 2014.