Justices could see gay cases this term
by Lisa Keen
The United States Supreme Court this week rejected reviews of two lower court decisions of some interest to LGBT legal activists. But some gay-related cases could be on the docket this session, and national legal experts predict a case testing the right of states to ban same-sex marriage is on a fast track to the nation's highest court.
The justices, whose session opened Monday, October 7, declined to accept review of McDonald v. Moose, a case that legal activists were mildly interested in because it concerned Virginia's law against sodomy. The case was not gay-related. It sought to determine whether the state could, post Lawrence v. Texas, still enforce its law against sodomy in a case where an adult man solicited sodomy from a minor female. The Lawrence decision in 2003 struck down the use of sodomy laws against private consensual sex between same-sex adults.
The justices also declined to take the appeal of a University of Toledo vice president who was fired for publishing an op-ed in the Toledo Free Press complaining about a description of "homosexuals" as "civil rights victims." Crystal Dixon, an African American, wrote about her distaste for comparisons between civil rights struggles of gay people and those of African Americans. The 6th Circuit U.S. Court of Appeals ruled that, because the university employed Dixon to enforce its policies, Dixon's public speech contradicting those policies was not protected.
Showdown with religion
Meanwhile, there are other gay-related cases with the potential to come before the Supreme Court this session – some in follow up to the marriage equality cases, some within the ongoing clash over whether one can claim a right to discriminate against LGBT people by designating that discrimination as part of one's exercise of religious freedom.
Elane Photography v. Vanessa Willock out of New Mexico is one of a growing number of lawsuits pitting the constitutional right to free exercise of religion against state laws prohibiting discrimination based on sexual orientation.
The Elane lawsuit challenges the state's ban on discrimination based on sexual orientation. It was brought to the state Supreme Court by a photographer, Elaine Huguenin, who refused to provide her commercial wedding photography service to a same-sex couple, saying her religious beliefs were in conflict with a same-sex couple's commitment ceremony. The couple sued, citing the state law against discrimination based on sexual orientation in public accommodations. Huguein, represented by the Alliance Defending Freedom, says her religious objections to homosexuality should trump the state's interests in eradicating discrimination against LGBT people and that the First Amendment guarantee to freedom of speech should protect her ability to express her bias.
The New Mexico Supreme Court ruled August 22 that the state human rights law does not violate the photographer's free speech rights and that businesses that "choose to be public accommodations must comply" with the non-discrimination law.
"They may ... post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage," said the court, but they must also indicate that they comply with the law.
"This is really a gay rights case," said Pamela Harris, a law professor at Georgetown University, who moderated a September 16 preview panel of the American Constitutional Society.
Another gay-related case that could soon be seeking Supreme Court review is Pickup v. Brown, which tests the constitutionality of California's newly passed law to ban sexual orientation change efforts (reparative therapy) for persons under the age of 18. A lower court judge had granted a preliminary injunction against the law going into effect, but, on August 29, a three-judge panel of the 9th Circuit U.S. Court of Appeals reversed that injunction, saying the law "is neither vague nor overbroad, and does not violate parents' fundamental rights."
Both sides of the case have asked for a review of the 9th Circuit panel's decision by a larger number of the court's members (en banc), and the briefs have been filed. If the full court review is denied, then opponents of the ban on ex-gay therapy, represented by Liberty Counsel, could petition the U.S. Supreme Court right away.
The next big marriage cases
After all the excitement around last session's two big decisions concerning same-sex marriage, Supreme Court observers are already looking ahead to the next big one: state bans on marriage for same-sex couples.
Thomas Goldstein, publisher of the scotusblog.com site which many legal observers rely on to stay abreast of analysis of pending cases, said a case testing the constitutionality of state bans on same-sex marriage "is coming on a rocket ship."
Public Citizen Litigation Group director Allison Zieve agreed, adding that she thinks that case will be "more controversial" because it will decide whether the federal Constitution requires states to treat married same-sex couples the same as straight couples.
Goldstein and Zieve were on one of several Supreme Court preview panels held in September. Many panelists on those preview forums discussed the historic nature of the Supreme Court's decisions in U.S. v. Windsor, which struck down the key provision of the federal Defense of Marriage Act, and Hollingsworth v. Perry, that left intact a federal district court ruling striking down California's ban on same-sex marriage (Proposition 8).
But the Supreme Court's Perry case was decided on a technicality. The decision did not address the question of whether similar state bans – which exist still in 36 states – are constitutional.
Many of the experts on the preview panels said they anticipate the next major case on same-sex marriage will address that constitutional question. And Zieve said she has "a hard time seeing how [the Supreme Court] can write an opinion completely consistent with Windsor that doesn't" find those other bans unconstitutional.
As many as 35 lawsuits in 19 states are now challenging those state bans on same-sex marriage, according to Jon Davidson, legal director for Lambda Legal Defense and Education Fund, which is leading five of those lawsuits.
The farthest along and most likely to reach the Supreme Court first is one by Lambda Legal out of Nevada. That case, Sevcik v. Sandoval, was dismissed at the federal district court level but Lambda Legal has an appeal pending before the 9th Circuit and briefing closes next month. A second lawsuit, Jackson v. Abercrombie, against Hawaii's ban on same-sex marriage, has final briefs due to the 9th Circuit on December 23 or two weeks thereafter. Depending on how quickly the 9th Circuit moves on the cases, they could potentially be appealed to the Supreme Court this session but they would likely be heard next session.
While Nevada Governor Brian Sandoval is defending the law, the court has allowed an anti-marriage equality group, the Coalition for the Protection of Marriage, to participate in the defense as intervenor. Hawaii Governor Neil Abercrombie is not defending the Hawaii ban but another state official is, as is the Hawaii Family Forum as intervenor.
The remaining state challenges include the two high-profile lawsuits in Virginia, one with Lambda Legal teamed up with the American Civil Liberties Union, the other with Theodore Olson and David Boies teamed up with local attorneys.
"No one knows which case or cases will reach the Supreme Court first," said Lambda Legal's Davidson. "Whichever case or cases it is, what we want most is for it to be a case that has been well-litigated. We are pleased to have [the Olson-Boies team] joining us, the ACLU, and many others in trying to ensure that well-developed cases are proceeding that can hopefully lead to an ultimate Supreme Court decision that will bring marriage equality to the whole nation."
Other cases of interest
Other cases, while not gay-related, are expected to impact LGBT people, testing whether employers may deny health insurance coverage for certain medical services to employees under the Affordable Care Act if the employers have religious objections to those services. Two cases, Conestoga Wood v. HHS and HHS v. Hobby Lobby Stores, have petitions pending with the Supreme Court to assert such claims against coverage for birth control.
The Supreme Court on October 15 will hear oral arguments in a case that asks whether a state can amend its constitution to prohibit discrimination based on race and sex. Out of the 6th Circuit, Schuette v. Coalition to Defend Affirmation Action involves a 2006 ballot measure in Michigan to amend the state constitution to prohibit the state from engaging in affirmative action with regard to sex and race in public education, public employment, and public contracting. The 6th Circuit ruled that the ban "undermines the equal protection clause's guarantee that all citizens ought to have equal access to the tools of political change."
In the Schuette case, Lambda Legal signed onto a friend-of-the-court brief filed by the Leadership Council on Civil Rights which argues that the ban is unconstitutional because it places "special burdens on minority groups' 'entering into the political process in a reliable and meaningful manner.'" It compares the Michigan initiative to Amendment 2 in Colorado, which disadvantaged gay people. The Supreme Court struck Amendment 2 down in 1996 in Romer v. Evans.
On November 6, the Supreme Court will hear arguments in a case testing whether a town council's practice of allowing citizens to offer a prayer at the start of each of the council's meetings violates the Constitution's establishment clause. The ACLU led a friend-of-the-court brief that argues, "By its very nature, governmental prayer, even if nonsectarian, places the state firmly on the side of religion." The case is Town of Greece v. Galloway.
And the National Labor Relations Board v. Noel Canning case could be of some interest to the LGBT community because it tests whether the president has the power to put nominees into place during a congressional recess when some senators are blocking them.
At least two openly gay people have been appointed by President Barack Obama during a recess appointment – Chai Feldblum, as a commissioner of the Equal Employment Opportunity Commission, and Richard Sorian as assistant secretary for public affairs at the Department of Health and Human Services. President Bill Clinton made one of the more famous recess appointments when he named openly gay San Francisco philanthropist James Hormel to serve as ambassador to Luxembourg. And President George W. Bush used the recess appointment to name an anti-gay nominee, James Holsinger, to serve as surgeon general.