Category Archives: LGBT

Transgender Rights and the Supreme Court (UPDATED — 3/6/17)

At the end of March, the United States Supreme Court is currently scheduled to hear arguments in a case involving Title IX and bathrooms for transgender students.  After this week, it seems likely that the case will be removed from the docket and sent back to the Fourth Circuit for reconsideration.   (Updated 3/6/17 — This morning, the Supreme Court sent the case back to the Fourth Circuit for reconsideration.)

As noted in earlier posts, after the adoption of Title IX (barring discrimination on the basis of gender by schools and colleges that receive federal funding which is effectively all public schools and most colleges), the federal government adopted a regulation permitting schools to have separate bathrooms for males and females.  The student filed a case seeking to have the court rule that the student’s gender for the purposes of those regulations was the student’s desired gender not the student’s birth gender.  At an early stage of this case, the Department of Education took the position that it would be interpreting those regulations as requiring schools to allow transgender students to use the bathroom consistent with the desired gender of those students rather than their birth gender.  When it decided the case, the Fourth Circuit deferred to the Department’s interpretation of the regulation and did not independently find what the regulation required.  When the school board appealed to the U.S. Supreme Court, two of the three issues raised involved whether the Fourth Circuit should have deferred to the Department’s interpretation of its own regulation.  In taking the case, the U.S.  Supreme Court only accepted one of the two questions about deference (whether deference was appropriate under the circumstances) and also took the question about the proper interpretation of the relevant regulation.

Because the Fourth Circuit decision relied on a judicial doctrine (Auer deference) that dictates that courts should defer to an agency’s interpretation of its own regulation, it was dependent on the agency not changing that interpretation.  When the Supreme Court took the case in October, the Department still interpreted the regulation consistent with the student’s position in this case.  After Trump won the election, it was unclear whether the new administration would change its interpretation of the regulation.

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Supreme Court and Politics

no_more_hate (2)In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree.  By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular.  Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies.  The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices.  (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years.  Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)

The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics.  To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much.  However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election.  This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split).  Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines.  That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review.  While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.

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Marriage is a Fundamental Right

Most people would not debate that statement.   And the Supreme Court has previously recognized that basic principle.  Some, however, believe that their definition of marriage is the only definition of marriage that has ever been recognized in this country.  Today, in a 5-4 decision by Justice Kennedy, the majority of the Supreme Court thoroughly set forth the historical facts showing that the definition of marriage and what it means to be married has been ever-changing throughout history.  In light of the ever-changing nature of marriage, laws banning gays and lesbians from marrying their preferred partners simply represented discrimination against gays and lesbians, violating the equal protection clause.

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Supreme Court Decisions: The Final Week

Today, the Supreme Court issued four opinions, leaving seven cases still pending from this year.  They also announced that they will be issuing opinions on Thursday and Friday.  With two more opinion days this week, there is a significant chance that the last of the opinions will be issued on Friday, but it is slightly more likely that the last one or two will come on Monday (with a slim chance of a second opinion day next week).  Additionally, with today’s opinions, it is possible to make a good guess on who has which case.

From January, it is all but certain that Justice Kennedy has the Fair Housing case.  That is not necessarily good for civil rights activists, but there were worse possibilities.

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Immigration and Marriage

In politics, leaked information is rather common.  It always seems that a potential proposal or policy change hits the news while it is still under consideration.  The judiciary, and particularly the Supreme Court, has been mostly immune from this practice.  The lack of solid information on what the Supreme Court has decided in any particular case before the official release of the decision leads those who follow the Supreme Court to try to read omens and clues from a variety of sources — the questions asked at oral argument, which justices have issued opinions from a particular two-week argument session, and sometimes what the justices have said in another opinion.

As we near the end of the active part of this year’s Supreme Court term, this past week saw a flood of opinions (nine opinions) leaving eleven cases to be issued presumably between Monday and July 1.  (At the present time, the Supreme Court will almost certainly be handing down some opinions on Monday, June 22.  It is unlikely that they will hand down eleven opinions on Monday.  The Supreme Court has not yet announced any other days for the next seven days.  Jf the Supreme Court is going to hand down all opinions this week, there will probably be one or two more days.  If not, we will see at least some opinions on June 29, and maybe even on June 30 or July 1.)  There were a couple of interesting Free Speech cases that I will probably post something on during the down time of July, but the big four cases of the second half of the term remain for this last push (fair housing, redistricting, health insurance subsidies, and same-sex marriage).  The big surprise this week, however came in an unexpected case, Kerry v. Din.  When this case came to the Supreme Court, it looked like a case about immigration law and the virtually unreviewable discretion of embassy staff to reject a visa request.  However, this case arose in the context of the spouse of a U.S. citizen and court watchers are now wondering what the discussion of marital rights in this case might hint about the same-sex marriage cases.

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LGBT Rights in Indiana

rainbowLast night, Mike Pence signed the updated “Religious Freedom” bill into law in Indiana. Here’s the text of the salient change:

SECTION 1.IC34-13-9-0.7IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]: Sec. 0.7.

 

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