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Marriage Equality at the Supreme Court 2.0: What To Expect at Oral Argument Tomorrow?

Scotus

BY ARI EZRA WALDMAN

On Tuesday, the Supreme Court will hear oral argument in a case called Obergefell v. Hodges. Mr. Obergefell, an Ohio man who married his late husband in a medically-equipped jet on a tarmac in Maryland, is just one plaintiff among several, bringing one case among several. But this case gives the Court the chance to make the freedom to marry a nationwide reality.

Mary Bonauto, a veteran of the LGBT equality movement and winning litigator in the Massachusetts marriage case, will argue on behalf of Michigan and Kentucky couples seeking the right to marry in their home states. Douglas Hallward-Driemeier, a former assistant solicitor general, will argue for Ohio, Kentucky, and Tennessee plaintiffs. Plaintiffs from these states married elsewhere and seek home-state recognition of their out-of-state marriage.

There are, then, two separate questions to be argued on Tuesday: (1) Does the Fourteenth Amendment allow states to ban gays from marrying? (2) Does the Fourteenth Amendment allow states to refuse to recognize valid same-sex marriages performed in other states?

Looking forward to oral arguments on Tuesday, a few underlying questions should dominate the discussion. How the Court approaches these salient issues should determine the outcome.

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Georgia Graphics Store Refuses To Print Gay Couple’s Wedding Invitations

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A Suwanee, Ga. gay couple is the latest victim of discrimination after the owner of a local AlphaGraphics franchise refused to print wedding invitations for them, citing his religious beliefs reports 11Alive.com. Paige Beckwith contacted the local chain after a friend referred her to the business to order intricate, custom wedding invitations however, owner Alan Akins refused her.

Said Beckwith:

"The owner called me back and let me know that he's not going to print our invitations because he does not support same sex marriage.

"I kept asking him how, why, how he could do this? He just basically stood on his religious beliefs, referenced the Bible, called it a sin, and I was basically in tears saying 'How could you treat me this way?'" 

Akins confirmed he denied the couple but that he would've printed other things for the couple except for the invitations. 11Alive Legal Analyst Philip Holloway says Akins was exercising his legal rights.

Said Holloway:

"Under Georgia law businesses do have the right to say I'm not going to do business with this sort of couple."

Beckwith took her complaint to AlphaGraphics' main office and received a full apology and the company produced Beckwith’s custom wedding invitations at no charge.

Said AlphaGraphics' spokesperson:

"We do not condone discrimination of any kind, and wish to make clear that customers of any race, religion, nationality, ethnicity or sexual orientation are welcome at our franchisees' locations nationwide.

"We also wish to apologize to the customers who were impacted by the actions of this franchisee, and hope that our response conveys the level of commitment we feel toward upholding our company's standards of inclusion, and that all members of the Suwanee community continue to feel welcome at AlphaGraphics."

Screen Shot 2015-04-26 at 11.12.25 AMAlthough the couple won a small victory, the "religious freedom" debate continues to rage in the state. Georgia Sen. Josh McKoon managed to get the state senate to pass S.B. 129 in March - a religious freedom bill similar to Indiana's. The contentious nature of the bill even gained the ire of former Georgia Attorney General Mike Bowers, known for defending the state’s sodomy laws in the 1980s, saying the bill would "give the opportunity to exclude in the name of religion, and I think that's a disaster." Luckily, the bill is officially dead this legislative session as of April 2, but McKoon vowed that he would attempt to fully pass it again in next year's legislative session. 

Editor's Note: A previous version of this post mislabeled Philip Holloway. He is a legal analyst for Atlanta outlet 11Alive. 


HRC Warns 12 States ‘Don’t Repeat The Mistakes Of Indiana' In New Media Campaign

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The Human Rights Coalition launched a new ad campaign asking 12 state governors to reject bills that target LGBT people like the one Gov. Mike Pence passed in Indiana. HRC's new campaign comes after a study conducted by the organization yielded results stating that a majority of Hoosiers believe Pence’s bill is damaging Indiana’s economy. JoDee Winterhof, HRC's vice president for policy and political affairs, warned of the repercussions states could endure if they follow Pence’s example.

Said Winterhof:

"Gov. Mike Pence found that experimenting with anti-LGBT bills that allow businesses to discriminate killed his approval ratings and damaged the Hoosier economy. Governors who go down the same path as Mike Pence and put their state economy at risk in an attempt to further discrimination are going to find themselves at risk of being rejected by the voters."

The results of HRC's study reflects Winterhof's warning as a majority of voters (70% to 24%) believe that businesses should not discriminate against people based on sexual orientation or identity. Surprisingly a majority of Republican voters (58% to 36%) concur. Pence’s approval ratings have since plummeted, allowing for a potential Democratic challenger to make gains in the state. HRC's media campaign officially began today on social media in Alabama, Indiana, Louisiana, Florida, New Hampshire, Michigan, Missouri, North Dakota, North Carolina, South Carolina, Ohio and Texas. Although Pence attempted to clarify that official language in the new law would prevent LGBT discrimination, HRC isn’t buying it, noting that the state’s laws are still devoid of any clear LGBT anti-discrimination laws that would grant full protections to LGBT people in the state.


Trans Teen's Lawsuit Prompts South Carolina DMV to Change Driver's License Photo Policy

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A transgender teen who filed a federal lawsuit last September against South Carolina’s Department of Motor Vehicles for sex discrimination and violating free speech won her case reports NPR.org. Chase Culpepper, 17, filed the suit after DMV officials told her to remove her mascara and eye shadow before taking her driver’s license photo, arguing with her that her cosmetics was a "disguise."

Screen Shot 2015-04-24 at 8.14.20 AMThe department claimed that a 2009 rule prohibits applicants from "purposely altering his or her appearance so that the photo would misrepresent his or her identity." Culpepper filed a lawsuit in response to the Spring 2014 incident calling the policy "unconstitutionally vague and overbroad" and arguing it allowed DMV officials to make "arbitrary and capricious" decisions based on the department’s personal biases regarding gender presentation.

The Transgender Legal Defense and Education Fund, a New York-based group backing Culpepper, helped reach a settlement in the case, with South Carolina’s DMV agreeing to change its policy to allow applicants to be photographed as they are regardless of officials’ expectations of what they think applicants should look like. The department also promised Culpepper an apology letter and intends on training employees on how to treat transgender and gender non-conforming individuals. Culpepper announced she is pleased with the results of the settlement.

Said Culpepper:

"I am thrilled with the outcome of my lawsuit. My clothing and makeup reflect who I am. From day one, all I wanted was to get a driver's license that looks like me. Now I will be able to do that. It was hurtful to be singled out for being transgender and made to feel that somehow I wasn’t good enough."

The new department policies go into effect in May; Culpepper intends on taking her new driver’s license photo then with her makeup on. Since Culpepper’s win, the Transgender Defense and Education Fund received several similar requests for legal representation and support after the news of Culpepper’s successful case spread reports The Los Angeles Times. The advocacy group is currently in negotiations with West Virginia’s DMV after three transgender women reported that the department ordered the women to remove wigs and fake eyelashes before having their driver’s license photos taken.

 


Marriage at the Supreme Court 2.0: Windsor, Perry, and Context — Part 2

Scotus

BY ARI EZRA WALDMAN

This post is a continuation - to read the first part, click HERE.

In Part I of this post, we took Kenji Yoshino's invitation, sparked by his book, Speak Now, on Hollingsworth v. Perry, to take a look at the context for the upcoming Supreme Court marriage argument. We traced the key legal history back from 1972 and Baker v. Nelson to the passage of Defense of Marriage Act (DOMA). I have been arguing that a multi-pronged strategy was necessary to win marriage rights, but the step-by-step litigation strategy was the central mode of success. Let's pick up where we left off.

MarriageThe preemptive nature of DOMA was its most striking element. In 1996, there were no legally married gay couples in the states, and yet Congress still felt the need to discriminate against them and give states the right to ignore legal marriages just because the individuals are gay. It wasn't until 2004 when Massachusetts legalized marriage for gays that the effects of DOMA could actually be felt by a real live person. Between 1996 and 2004, advocates went to work in progressive states, mostly in the Northeast, to set the groundwork for marriage rights. After Massachusetts took the jump, 13 states passed constitutional bans on marriage equality. Others followed. But Massachusetts was joined by a handful of other states on the pro-equality side, including Connecticut, Vermont, Iowa, and New Hampshire. 

California was a unique case. In re Marriage Cases brought marriage equality to that state in 2008, but that freedom was famously taken away in Proposition 8. The denial of marriage rights in a state like California -- the progressive home of the Castro and West Hollywood (and countless other cities and towns gay Californians called home) -- felt particularly harsh. A group of activists, led by 4 pioneering plaintiffs and represented by an attorney "odd couple" of Ted Olson and David Boies, decided to challenge Prop 8 in federal court. 

CONTINUED, AFTER THE JUMP...

Plaintiffs

Continue reading "Marriage at the Supreme Court 2.0: Windsor, Perry, and Context — Part 2" »


Marriage at the Supreme Court 2.0: Windsor, Perry, and Context — Part I

BY ARI EZRA WALDMAN

Speak NowKenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law, has written an outstanding book: Speak Now: The Story of Hollingsworth v. PerryPerry was not the first marriage equality case. Nor, Professor Yoshino noted recently, did it create the most important legal precedent (that's Windsor). But Perry accomplished two essential functions, without which we would not be on the precipice of a nationwide marriage equality right: it launched marriage equality into the public conscience and used the unique environment of an adversarial trial to put our opponents' anti-gay arguments in stark relief. From there, the dominoes fell rapidly in our favor.

Less than one week away from oral argument at the Supreme Court in the most recent (and likely last) round of marriage equality cases, it is fitting to take Professor Yoshino's invitation to look back and understand the historical context that brought us here. For this retelling (and there are many possible retellings of the history of the marriage equality fight), I will connect the dots between some of the major legal precedents. Professor Yoshino's text is the seminal work on one of them -- Hollingsworth v. Perry. Let's see the bigger picture.

I will argue that although a multi-pronged strategy of growing public support, legislative action, and on-the-ground activism was important for marriage equality's success, without legal boldness and a courtroom strategy, much of the political work would not have mattered.

When, in the 1972 one-line order in Baker v. Nelson, the Supreme Court decided that the freedom to marry a person of the same sex did not raise any questions of federal law and, thus, could not be addressed in a federal court, the gay rights movement faced several options: give up on marriage, work state by state to amend marriage laws, or build the legal framework for a future federal fight on marriage equality. A non-monolithic movement, gay rights activists dabbled in each, but the latter was the most important.

CONTINUED, AFTER THE JUMP...

Continue reading "Marriage at the Supreme Court 2.0: Windsor, Perry, and Context — Part I" »


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