PFAW Foundation and Leadership Programs Support #Unite4Marriage

PFAW Foundation and its leadership programs, African American Ministers Leadership Council – Equal Justice Task Force, Young Elected Officials Network, and Young People For, are united in their support for the #Unite4Marriage coalition. Marriage equality supporters are currently organizing around the April 28 oral arguments before the Supreme Court and a ruling expected in the coming months on whether the fundamental right to marry enshrined in the US Constitution is limited to opposite-sex couples. There will be events in DC and in communities across the country.

Back in January, PFAW Foundation President Michael Keegan applauded the Court's decision to hear the four Sixth Circuit cases.

This is unquestionably an important step towards marriage equality for all Americans. Since the Sixth Circuit got this wrong and denied people in four states their basic rights, the Supreme Court did the right thing by taking these cases. Now the Court needs to do the right thing by making a clear statement about the Constitution’s guarantee of fundamental equality for all people. The time is long overdue for every American to have the right to marry the person they love.

That said, this is likely to be yet another five-four decision from the Court that gave us Citizens United and Hobby Lobby and gutted the Voting Rights Act. That should be a reminder that our fundamental rights are in jeopardy in our nation’s highest court — and the future of the Court and these rights will be in the next president's hands. Americans should be able to depend on the Supreme Court to defend the rights of ordinary Americans — whether that’s the right to marry, or to vote, or to be treated fairly on the job, or to control their own reproductive health.

Today is an important step towards full equality for same-sex couples—and a powerful reminder that every American should be concerned about the balance of the Supreme Court.

Just last month, PFAW Foundation joined the Anti-Defamation League and an expansive coalition of religious and civil rights organizations in submitting an amicus brief in support of marriage equality.

[C]ontrary to the arguments of some who defend the marriage bans, invalidating the bans will not jeopardize religious liberty. As an initial matter, the cases before this Court concern whether same-sex couples are entitled to the benefits of civil marriage. Religious groups will remain free, as they always have been, to choose how to define religious marriage and which marriages to solemnize…. Religious liberty should serve as a shield, not as a sword to discriminate against members of a disadvantaged minority group.

We'll share more about #Unite4Marriage as we hear it.

See you on the 28th!

PFAW Foundation

The Animus Amicus: Archive Activism and Marriage Equality

Note: This article first appeared at Huffington Post. 

In April, the U.S. Supreme Court will hear arguments on the constitutionality of state laws that ban same-sex couples from getting married. The historic case has attracted a wide array of amicus briefs; People For the American Way Foundation joined religious and civil rights groups on a brief urging the Court to reject discriminatory marriage bans and challenging “religious liberty” arguments opposing marriage equality.

One fascinating brief was filed by the Mattachine Society of Washington, D.C.  The original group by that name was led by Frank Kameny, an astronomer who was fired from his federal job for being gay and led some of the earliest gay-rights protests in the nation’s capital in the 1960s. The name and legacy have been revived by local activists Charles Francis and Pate Felts for the purpose of documenting decades of systematic anti-gay discrimination by the federal government. In partnership with pro bono attorneys from the firm of McDermott Will & Emery, the new Mattachine Society of Washington, D.C. is engaged in strategic “archive activism.” They are using the Freedom of Information Act to unearth a “culture of animus” that permeated the U.S. Civil Service Commission – now known as the Office of Personnel Management – and to bring to public light previously closed records about investigations challenging workers’ “loyalty” and “suitability.”

“The investigation and firing of gay and lesbian federal employees was like shooting fish in a barrel for the General Counsels and legal staff of the Civil Service Commission,” says Francis. “The animus, almost sports-like in their writings, is documented in decades of legal advisory files we discovered this year at the National Archives.”

Among the historical tidbits unearthed by the project: Nancy Reagan turning down a plea from a dying Rock Hudson for help getting into another hospital; and anti-gay activist Gary Bauer’s no-holds-barred, but ultimately unsuccessful, effort to keep the White House from including a gay person on the nation’s first AIDS commission.

The Mattachine Society’s project is about preserving the historical record, but it also has an important legal purpose, which is demonstrating that anti-equality laws and regulations have long been grounded in hostility, or animus, that is not a permissible justification for discrimination.  Chief Justice John Roberts’ dissent from the Supreme Court decision in Windsor, which overturned the Defense of Marriage Act, demonstrates the importance of this archival work. Roberts suggested there is insufficient evidence – he waved it away as “snippets of legislative history” – to demonstrate that DOMA’s purpose was to “codify malice.” Added Roberts, “I would not tar the political branches with the brush of bigotry.”

There’s no escaping the brush of bigotry, the reeking stench of bigotry, exposed by the Mattachine Society’s brief, which links to more than 35 historical documents that demonstrate the ways that the Civil Service Commission, often in partnership with J. Edgar Hoover’s FBI and other law enforcement agencies, investigated people suspected of sexual “perversion” and robbed them of their federal jobs and careers.

From the amicus:

For decades, this animus was one of the basic assumptions of American life. It was so persistent, so prevalent, and so instrumental to the way that we structured our institutions, treated our fellow citizens, and organized our lives that, in retrospect, it is often overlooked….

For decades, both federal and state governments targeted and persecuted homosexuals, individuals suspected of being homosexual, and even those believed to have engaged in homosexual acts, regardless of actual sexual orientation. The stated rationale shifted over time—from concerns about national security to code words, such as “suitability”—but the point was always the same: government officials, federal and state, high and low, felt a complete revulsion toward homosexuals and wanted to purge the country of even the hint of homosexuality.

Animus, therefore, was a culture. And with that culture came a language. For decades,  government officials referred to homosexuality in official, often highly confidential or privileged communications, as “unnatural,” “uniquely nasty,” “immoral,” “deviant,” “pervert[ed],” and an “abomination.” Even the FBI had a term for the program that it designed to rid the government of homosexuals—the “Sex Deviate Program.” Once it attached, whether based in fact or mere speculation, the label of homosexuality remained forever fixed. As one senior executive official wrote, “once a homo, always a homo.” And, as one state legislature put it, what homosexuals wanted was “recognition.” And “recognition” was something to fear….

The effort to purge “sex deviates” began well before President Dwight Eisenhower’s 1953 Executive Order 10450, but that action explicitly made “sexual perversion” a disqualification from federal employment. Congress was in on the act as well. The Mattachine amicus quotes from a 1950 document from the US Senate Subcommittee of the Committee on Expenditures in the Executive Department:

There is no place in the United States Government for persons who violate the laws or the accepted standards of morality, or who otherwise bring disrepute to the Federal service by infamous or scandalous personal conduct . . . . It is the opinion of this subcommittee that those who engage in acts of homosexuality and other perverted sex activities are unsuitable for employment in the Federal Government.

The federal government also worked in concert with anti-gay activities being carried out at the state level. One of the documents uncovered by Mattachine’s Freedom of Information Act requests is a 1963 note from Civil Service Commission General Counsel L. V. Meloy to Charley Johns, chairman of the Florida Legislative Investigation Committee on Homosexuality and Citizenship.

The infamous Johns Report wallowed in salacious descriptions of “the special world of homosexuality” and warned of “aggressive homosexuals” seeking recognition and legal equality. The report described teachers engaging in sex in public bathrooms and little league coaches seducing teenagers, asserting, “The plain fact of the matter is that a great many homosexuals have an insatiable appetite for sexual activities and find special gratification in the recruitment to their ranks of youth.” The report included a glossary of “sex offenses” that were illegal under Florida law and eight pages of homosexual slang and “deviate acts.”

Meloy’s letter asking for “several copies” of the report said that the “Federal Government has related problems in this area and … [the] investigation will shed additional light on a most difficult problem in suitability for government employment.” The Florida committee specifically targeted gay teachers but also resulted, according to the Mattachine amicus, in the removal of at least 37 federal employees.

The brief also documents that the Civil Service Commission shifted its strategies in response to court rulings challenging its policies. The brief goes into some depth documenting the case of William Dew, an African American Air Force veteran. Dew was married with a pregnant wife when he was fired from his job as an air traffic controller in 1958 for having admitted years earlier as part of a job application to the CIA that he had experimented with gay sex when he was in college. After a six-year legal battle, culminating in the Supreme Court agreeing to hear Dew’s appeal, the government settled with him. But rather than loosening the CSC’s anti-gay policies, the government strengthened its resolve in the wake of the Dew settlement and, in the words of the Mattachine amicus, “demonstrated its willingness to use all of its resources to crush homosexuals and those who engaged in homosexual acts with its suitability standards.”

Following a 1969 DC Circuit Court ruling that challenged the firing of federal workers for something that had nothing to do with the performance of their jobs, the CSC General Counsel at that time, Anthony Mondello, argued that federal agencies would have a hard time attracting quality workers if applicants knew they might have to work with “people who repeatedly engaged in serious misconduct offensive to community standards.”

The CSC and its successor, the Office of Personnel Management, continued to target gay federal employees throughout the 1960s and 1970s and into the 1980s.

The Mattachine Society brief ends with an appeal to the Court’s history of addressing anti-gay animus:

The Dew case is important for another reason as well—one that goes to the heart of the cases now before this Court. For decades, there was no limit to the animus meted out against LGBT Americans and no end to its reach. It poisoned every institution in the United States and seeped into the lives of all Americans, not merely those of gays and lesbians. So too, the language of animus became commonplace among those in the highest positions in government: “homo,” “sexual deviant,” “pervert,” “abomination,” “uniquely nasty,” and other derogatory terms and phrases were used with bureaucratic ease as a way to define, cabin, and limit the citizenship of LGBT Americans. As the Dew case perfectly illustrates, the animus even extended to those who were not gay.

It was the courts—and in the case of Dew, this Court—that ultimately stepped in to set the course right. This Court knows animus when it sees it, and it has a well-established line of cases overturning laws that by their text, background history, and effect, relegate a class of citizens to second-class status. Seee.g., Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); and United States v. Windsor, 133 S. Ct. 2675 (2013). Indeed, this Court has already recognized the long history of discrimination and animus against homosexuals. Seee.g., Lawrence, 539 U.S. at 571.

The newly revealed documents cited herein merely reinforce what this Court already knows. For decades, there was a culture of animus against LGBT Americans that permeated every aspect of American life and every American institution. In many places, that culture continues to this day. To say that the marriage bans now at issue are not somehow the product of this historical animus is to ignore reality. We may not see the air that feeds the flame. But, for decades, animus against LGBT Americans fed the flames of hatred, revulsion, and disgust from which the current marriage bans arose.

The Mattachine Society of Washington, D.C. is optimistic about the impact of its brief. “The government attorneys who administered the federal ban on homosexuals have met their match in our pro bono counsel McDermott, Will & Emery’s powerful amicus brief," says Francis, "The McDermott brief is a lasting account of an unconstitutional ‘culture of animus’ embedded through seven Presidencies.”

PFAW

Alabama Supreme Court Orders Probate Judge to Violate Federal Court Decision

Late yesterday saw the latest chapter in the ongoing saga of resistance to marriage equality in Alabama, and it is another ugly one.

Earlier this month, the Alabama Supreme Court (with Chief Justice Roy Moore recused) chose to act on a petition from two far right anti-gay organizations and ruled that the state's marriage ban is constitutional. (In other words, they ruled that gay and lesbian couples do not have a constitutional right to marry in a proceeding where none of the parties was a same-sex couple. How's that for fair?) They ruled that federal district Judge Callie Granade's January decision saying otherwise does not bind anyone but the parties in that case, and they directed every probate judge in the state but one to stop giving marriage licenses to same-sex couples.

The one exception was Probate Judge Don Davis: Since he had been specifically ordered by the federal court to grant a marriage license to the plaintiffs in Strawser v. Strange and Davis, the justices ordered him to say whether he felt that federal court order required him to grant licenses to any other same-sex couples, or only to the parties in that particular case.

Yesterday, the justices (again with Moore recused) concluded that the federal court order didn't apply to any other couples, and they directed Davis to enforce the marriage ban that had been struck down as unconstitutional earlier this year.

It isn't quite clear why the Alabama Supreme Court, rather than Judge Granade, is qualified to say what Judge Grande's order means.

Even putting that aside, the logic of the state justices' legal conclusion is hard to fathom. A federal court ruled that the ban was unconstitutional - period. It did not rule that the ban was unconstitutional only when applied to the particular couples in that lawsuit. When Judge Granade ordered Davis to issue marriage licenses to the plaintiffs who had asked the court for this relief, she clearly intended for Davis to act consistently with the Constitution for any other same-sex couples seeking to marry. For Davis to comply with the Alabama Supreme Court's order, he would have to defy the federal court.

The contempt for the rule of law seen in this order is nothing new to the Alabama high court. After all, Chief Justice Moore himself was removed from the court more than a decade ago for defying a federal district court order. His efforts to nullify the federal marriage equality ruling prompted PFAW Foundation to submit a formal complaint to state ethics officials calling for him to be removed a second time. It is disheartening to see that most of his colleagues on the state high court share his contempt for the rule of law, to say nothing of the rights of lesbian and gay Alabamans.

PFAW Foundation

PFAW Foundation and Allies Submit Brief to Supreme Court in Support of Marriage Equality

On Friday PFAW Foundation joined the Anti-Defamation League and an expansive coalition of religious and civil rights organizations in submitting an amicus brief urging the Supreme Court to rule state-level marriage bans unconstitutional in the four marriage cases before them this term. One specific religious conception of marriage, the signers argue, should not define our nation’s laws on it.

The brief outlines instances in our country’s history in which discriminatory laws have been justified on the grounds of “religious and moral disapproval,” from laws supporting slavery to segregation to discrimination against women. But, the signers note, the Supreme Court has rejected these types of arguments over and over – and should again with regard to the marriage bans.

The brief also takes apart the “religious liberty” arguments of those opposing marriage equality, noting that overturning the bans will not threaten freedom of religion since religious groups will still be able to define what marriage means in their tradition:

[C]ontrary to the arguments of some who defend the marriage bans, invalidating the bans will not jeopardize religious liberty. As an initial matter, the cases before this Court concern whether same-sex couples are entitled to the benefits of civil marriage. Religious groups will remain free, as they always have been, to choose how to define religious marriage and which marriages to solemnize…. Religious liberty should serve as a shield, not as a sword to discriminate against members of a disadvantaged minority group.

This amicus brief was one of a stunning array of briefs filed in the Supreme Court last week in favor of marriage equality, including briefs signed by more than 2,000 clergy; 200 police officers, EMTs, and firefighters; 400 companies, including  forty of the nation’s largest corporations; more than 200 mayors; and more than 300 conservative leaders.

PFAW Foundation

Ellen DeGeneres Reveals Her True 'Gay Agenda' In Response To Right-Wing Columnist

Last week, People For the American Way’s Right Wing Watch reported on a Christian Post column by right-wing commentator Larry Tomczak in which he warned that Hollywood is “promoting homosexuality” by “targeting innocent and impressionable children.” In particular, Tomczak attacked Ellen DeGeneres, whom he wrote “celebrates her lesbianism and ‘marriage’ in between appearances of guests like Taylor Swift to attract young girls.”

The column caught the attention of none other than Ellen herself, who responded to Tomczak on her show this week.

She told Tomczak: “First of all, I’m not ‘married.’ I’m married. That’s all,” adding “I don’t even know what it means to ‘celebrate my lesbianism.’”

She then revealed her true “gay agenda”:

PFAW

Federal Judge Gives History Lesson on Anti-Gay Discrimination

The federal court ruling striking down Mississippi’s ban on same-sex couples getting married is worth reading for many reasons. Paul wrote earlier about U.S. District Judge Carlton Reeves’s compelling explanation of the role of the courts in protecting Americans’ constitutional rights. The ruling is also filled with rich historical detail about the extent to which the state of Mississippi and the federal government have discriminated against LGBT citizens over the years, as well as the ways in which groups like the Ku Klux Klan and the notorious Mississippi State Sovereignty Commission used anti-gay rhetoric and innuendo in their attacks on African American civil rights leaders and institutions.

This history is an important rebuttal to bogus claims by anti-gay activists that gay people do not need to have their rights protected in law because they have never suffered from discrimination.

Quotes from the opinion, with citations removed for readability:

Any claim that Mississippians quietly accommodated gay and lesbian citizens could no longer be made in the 1960s, when prejudice against homosexuals (and other groups) became more visible during the civil rights movement. Segregationists called their opponents “racial  perverts,” while U.S. Marshals – summoned to enforce civil rights – were labeled “sadists and  perverts.” Klan propaganda tied together “Communists, homosexuals, and Jews, fornicators and liberals and angry blacks – infidels all.”

One Klan photo showed a black man touching the crotch of the white man sitting next to him, attempting to make the link between racial equality and homosexuality explicit.

Civil rights leaders had predicted the attack. In selecting the Freedom Riders, James Farmer had conducted interviews to weed out “Communists, homosexuals, [and] drug addicts.” “We had to screen them very carefully because we knew that if they found anything to throw at us, they would throw it,” he explained.

This reflected society’s notion that homosexuals were “undesirables.” It also placed civil rights leaders in the position of seeking rights for one disenfranchised group while simultaneously seeking to avoid association with another disenfranchised group. Mississippians opposed to integration harassed several civil rights leaders for their homosexuality. Bill Higgs was a prominent gay Mississippi civil rights lawyer. He was targeted for his activism, convicted in absentia of delinquency of a minor, and threatened with “unlimited  jailings” should he ever return to Mississippi.

He never did.

Reeves also discusses the case of Bayard Rustin, the openly gay African American civil rights activist who organized the 1963 March on Washington at which Martin Luther King, Jr. delivered his famous “I Have a Dream” speech.

The most interesting part of Rustin’s story, though – and the reason why he merits more discussion here – is that he was subjected to anti-gay discrimination by both white and black people, majority and minority alike. Congressman Adam Clayton Powell, a black Democrat, threatened to feed the media a false story that Rustin was having an affair with Martin Luther King, Jr., unless Dr. King canceled a protest at the Democratic National Convention.

Other persons within the civil rights movement were similarly “put off by Rustin’s homosexuality.” Roy Wilkins, an NAACP executive, “was particularly nasty to Bayard Rustin – very hostile,” in part because he “was very nervous about Bayard’s homosexuality.” Dr. King eventually had Rustin resign “because of persistent criticism of Rustin’s homosexuality and Communist ties and because of Congressman Adam Clayton Powell’s threat.”

Rustin reemerged years later as one of the principal organizers of the March on Washington for Jobs and Freedom. A. Philip Randolph and Dr. King wanted Rustin as the march’s chief organizer, but Wilkins pushed back “because [Rustin] was gay . . . something which in particular would offend J. Edgar Hoover.” The group ultimately “decided Randolph would be in charge of the march, that Rustin would be the principal organizer, but that he would stay somewhat in the background.”

The concern about offending Hoover was prescient, as the FBI Director and other top officials soon moved to use Rustin’s homosexuality against him. In August 1963, FBI Director J. Edgar Hoover, Attorney General Robert F. Kennedy, and President John F. Kennedy urgently reviewed the transcript of a FBI wiretap in which Dr. King acknowledged Rustin’s homosexuality. A day later, Senator Strom Thurmond of South Carolina “rose in the Senate to denounce Rustin for sexual perversion, vagrancy, and lewdness.” FBI “headquarters badgered the field offices for new details” of Rustin’s sex life for months.

As Reeves makes clear, this kind of persecution was not only reserved for civil rights activists.

Rustin’s story speaks to the long tradition of Americans from all walks of life uniting to discriminate against homosexuals. It did not matter if one was liberal or conservative, segregationist or civil rights leader, Democrat or Republican; homosexuals were “the other.” Being homosexual invited scrutiny and professional consequences.

These consequences befell quite a few Mississippians. Ted Russell, the conductor of the Jackson Symphony Orchestra, lost his job and his Belhaven College faculty position after he was caught in a gay sex sting by the Jackson Police Department. In the early 1980s, Congressman Jon Hinson drew scrutiny for frequenting an X-rated gay movie theater in Washington, D.C., and although he won reelection, he resigned when he returned to Washington and was caught performing gay sex acts in a Capitol Hill bathroom. As early as 1950, the State’s flagship institution of higher learning, the University of Mississippi, “forced three homosexual students and one faculty member to leave the university” because it “did not tolerate homosexuality.” Lesbian instructors at Mississippi University for Women were pushed out of their jobs, while students at other Mississippi public universities were expelled for their homosexuality. A 1979 article on gay Jacksonians said “most” remained closeted because “they fear losing their jobs, friends and families.”

Reeves discusses the anti-gay actions of the Mississippi State Sovereignty Commission, which was created in 1956 to maintain racial segregation by any means necessary.

Sovereignty Commission “[i]nvestigators and local officials also targeted local blacks and outsiders involved in civil rights activities as being sexually deviant.” They singled out Rust College, a private historically black institution, on reports that instructors there were “homosexuals and racial agitators.”

Those with power took smaller, yet meaningful, actions to discourage gay organizing and association in Mississippi. The State refused to let gay rights organizations incorporate as nonprofits. The newspaper at Mississippi State University – student-led, with an elected editor – refused to print a gay organization’s advertisement notifying gay and lesbian students of an off-campus “Gay Center” offering “counseling, legal aid and a library of homosexual literature. An advisor to the U.S. Commission on Civil Rights concluded that the Jackson Police Department took “a series . . . of maneuvers to harass members of Jackson’s gay community.” “As of 1985 not a single university campus in Mississippi recognized a lesbian and gay student group.”

Reeves’s ruling also makes clear that official discrimination is not only in the state’s past.

In 1990, the Mississippi Supreme Court affirmed a trial judge who declared that a mother, who was a lesbian, could not visit her children in the presence of her female partner. In Weigand v. Houghton, the Mississippi Supreme Court affirmed a trial judge who refused residential custody to a father in large part because he was in a long-term relationship with another man. A dissent complained that the father’s sexuality had impaired the court’s judgment, since the child would now have to live with “the unemployed stepfather [who] is a convicted felon, drinker, drug-taker, adulterer, wife-beater, and child-threatener, and . . . the mother [who] has been transitory, works two jobs, and has limited time with the child.”

 In 2002, one of Mississippi’s justice court judges, frustrated with advances in gay rights in California, Vermont, and Hawaii, “opined that homosexuals belong in mental institutions.” Although he was reprimanded and fined by the Mississippi Commission on Judicial Performance, the Mississippi Supreme Court vacated the sanctions. It was more important for gay citizens to know that their judge was biased and seek his recusal than to “forc[e] judges to conceal their prejudice against gays and lesbians,” it wrote. The “Commission urges us to ‘calm the waters’ when, as the guardians of this state’s judicial system, we should be helping our citizens to spot the crocodiles.”

Reeves details a number of recent complaints and lawsuits challenging discriminatory treatment by state and local governments as well as legal inequities such as the fact that Mississippi law permits a single person to adopt a child but not gay or lesbian couples.

This kind of restriction was once supported by pseudoscience. We now recognize that it actually “harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.”

Reeves concludes the historical section of the ruling this way:

“The past is never dead. It’s not even past.” That is as true here as anywhere else. Seven centuries of strong objections to homosexual conduct have resulted in a constellation of State laws that treat gay and lesbian Mississippians as lesser, “other” people. Thus, it is easy to conclude that they have suffered through a long and unfortunate history of discrimination.

PFAW Foundation

Mississippi Judge Striking Down Marriage Ban Explains the Role of Courts

Among the many things to be thankful for this Thanksgiving are our fundamental constitutional rights and the principled federal judges who make sure those rights are vindicated, even when popular majorities disagree. Judge Carlton Reeves reminded us of that yesterday in his ruling striking down Mississippi's ban that prevented gays and lesbians from marrying.

Judge Reeves has written a thorough opinion that respectfully considers all the arguments put forth by opponents of marriage equality and carefully explains why the marriage ban, popular as it may be in Mississippi, violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. At 72 pages, it is well worth reading if you want to see our Constitution and our federal court system at their best.

Among the many highlights is Judge Reeves's response to those who say the issue of marriage equality should be resolved in the political branches rather than through the courts. This is the position recently taken by the Sixth Circuit in a highly flawed opinion written by Judge Jeffrey Sutton. Judge Reeves explains:

In upholding four states' same-sex marriage bans, [the Sixth Circuit] expressed optimism that voters would change their minds on same-sex marriage, and argued that the courts should give them that opportunity. As that court wrote, "from the claimants' perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold." (emphasis added).

The undersigned sees the judicial role differently. The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place. The framers did not set up Article III to yield to "the superior force of an interested and overbearing majority." The Federalist No. 10. By honoring its obligation conferred by Article III [of the Constitution], the court does not diminish the political process. Rather, the court holds fast to the fundamental belief that constitutional principles that safeguard liberty and guarantee equality are not subject to the ballot. [footnote and internal citations removed]

Judge Reeves also provides an important historical context and the role courts have played in fulfilling the promises of our Constitution:

Under the Fourteenth Amendment, a state may not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today's issue, then, it is worth considering some of those historical changes.

He then cites Supreme Court cases interpreting the Fourteenth Amendment to allow racial segregation, the blanket exclusion of women from practicing law, the criminalization of consensual sex between two men in their own home:

These are just a few examples. There are others. Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.

The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.

This was always a risk of our representative democracy. James Madison wrote that "measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." The Federalist No. 10. He and his colleagues "knew times can blind us to certain truths." Lawrence [v. Texas], 539 U.S. at 579. Mistakes would be made.

In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show "that the laws once thought necessary and proper in fact serve only to oppress." Id. The judiciary has been charged with hearing these claims for more than two centuries. The will of the majority is usually affirmed. Every now and then, however, the majority has done an injustice to a person's rights, and the case must be resolved in his or her favor.

Judge Reeves, who was nominated to the bench by President Obama, explains well the importance of our nation's federal courts, while also demonstrating how important it is who serves on those courts.

PFAW Foundation

PFAW Activists Protest Kentucky’s Marriage Equality Ban

People For the American Way joined local activists at a park in downtown Louisville on Friday to protest Kentucky's ban on marriage equality for same-sex couples. 

The "Love Will Win" rally came in response to last week's federal appeals court decision that upheld laws against same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. Currently the Commonwealth doesn't even have to recognize same-sex marriages performed legally in other states.

Protesters are hopeful this setback will pave the way for a Supreme Court reversal, bringing marriage equality to the South and the rest of the nation.

Chris Hartman, director of the Fairness Campaign, said that he’s disappointed by the decision but pleased by the prospects of getting a case in front of the U.S. Supreme Court.

"I think we all knew the sixth circuit was going to rule against LGBT freedom to marry,” Hartman said. “The sixth circuit is the most overturned circuit at the Supreme Court in the entire nation."

Thus far, 32 states and the District of Columbia have legalized same-sex marriage.

PFAW

The Sixth Circuit's Flawed Marriage Ruling

A divided three-judge panel of the Sixth Circuit Court of Appeals this afternoon upheld the marriage bans of Michigan, Ohio, Tennessee, and Kentucky. The majority opinion was written by Judge Jeffrey Sutton and joined by Deborah Cook, both put on the bench by George W. Bush. Clinton nominee Martha Craig Daughtrey dissented.

Among the many flaws in the majority's reasoning was the conclusion that Equal Protection violations are best resolved in the political sphere:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

But this is a case where a discreet group, long a target of discrimination, found itself once again victimized by the majority acting through the democratic process. The Equal Protection Clause exists to protect vulnerable minorities from being victimized by hostile majorities using the "customary political process."

As the dissent states:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state's constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is "who should decide?"—and leads us through a largely irrelevant discourse on democracy and federalism.

Another flaw was Sutton's dismissal of the possibility that there was animus in the wave of 2004 and 2006 ballot initiatives in which voters put bans into their state constitutions. He wrote that if the constitutional bans had been unusual, that might trigger suspicion of animus. But he found nothing unusual here:

Neither was the decision to place the definition of marriage in a State's constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period [between 2004 and 2006]. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. [emphasis added, internal citation removed]

If that had been the motivation, the constitutional amendments would not have banned gays and lesbians from marrying, but would have simply said that the legislature had the authority to limit marriage to opposite-sex couples. That would have removed the court's authority in the matter. In fact, that is exactly how Hawaii amended its constitution in the 1990s (which is how it recently was able to adopt marriage equality without re-amending its constitution).

But the Hawaii model of inequality was not nearly extreme enough for the advocates of the bans devised and aggressively pushed in 2004 and 2006. They went far, far beyond that. They tied the legislatures' hands and ensured that gays and lesbians would forever be prevented from achieving marriage equality through democratic means.

The ordinary voters who voted for the bans surely had numerous motivations. But it seems like magical thinking on Judge Sutton's part to assume that there was no animus motivating the architects and enthusiastic proponents of such an extreme and permanent exclusion of a targeted minority.

The ones fighting most forcefully for the bans a decade ago were the same organizations and people who had spent years opposing every advance in LGBT equality, whether those advances came from the courts, from legislatures, in classrooms, or in popular culture. That history is vital to understanding their motivations ten years ago, just as it is vital in addressing their current claims that LGBT equality violates their religious liberty.

PFAW Foundation

Did a Nevada Federal Judge Let Personal Beliefs Affect His Marriage Ruling?

The federal district court judge whose pre-Windsor decision to uphold Nevada's marriage ban was recently reversed by the Ninth Circuit has now raised serious questions about whether his ruling was inappropriately influenced by his personal beliefs.

Last Tuesday, the Ninth Circuit ordered Judge Robert C. Jones to sign an order ordering Nevada to allow same-sex couples to marry. That's standard procedure when a case is reversed by an appellate court.

What isn't standard procedure is for the lower court judge to refuse.

BuzzFeed has reported that the day after that order was issued, Judge Jones recused himself without explanation and had the case reassigned. Yet he felt no qualm about presiding over the trial stage of the case – and issuing a ruling against the couples in 2012.

Judge Jones should explain why he recused himself as soon as the Ninth Circuit order came down, because it looks really bad. It looks like his personal feelings about gays and lesbians are so strong that he recused himself rather than comply with a direct order of the Ninth Circuit. And if that is the case, then why didn't he recuse himself from the case at the very start? It certainly taints the legitimacy of his initial ruling against gay and lesbian couples.

This raises serious questions about his fitness for the bench. If Judge Jones has some other reason for his recusal, he should state them and restore public confidence in his judgeship.

PFAW Foundation