The Courts Have to Matter to LGBTQ Americans

The following is a guest post by Erik Lampmann, a 2011 Young People For (YP4) Fellow. It is cross-posted on the Alliance for Justice blog and the YP4 blog.

Federal courts routinely hand down judgments that affect everyday Americans at an immediate, painful, and personal level – for good or ill.

Consider the case of Seamus Johnston, a transgender student expelled by the University of Pittsburgh at Johnstown (UPJ) for his use of male restrooms and gym facilities on campus. When he sought redress for his experiences at the hands of UPJ, U.S. District Judge Kim Gibson, a George W. Bush appointee, ruled he had no room to claim discrimination since he was being treated in accordance with his sex as assigned at birth and had not had sex reassignment surgery.

In some ways, Johnson was warranted in thinking he was free to live openly as a transgender man since UPJ offers gender identity and expression protections under its student nondiscrimination statement. Indeed, Johnson had lived openly and without significant difficulty as a man since 2009 — even having taken advantage of men-only exercise courses. Only in 2011 was Johnson first confronted for using a men’s locker room. After issuing Johnson citations, barring him from certain facilities, and eventually arresting him, the university expelled him for his attempt to use the bathroom in which he felt most at peace and which he believed he was permitted to use by university policy. In his appeal for justice, Johnson didn’t ask for much — simply that a university that purports to protect students based on “gender identity and expression” allow him a modicum of relief as a transgender person rather than criminalizing his attempts to live authentically.

Essentially, Judge Gibson acknowledged Johnson’s self-identification as a transgender man, but she didn’t think it really mattered in the context of the Equal Protection Clause or Title IX.  Flatly ignoring guidance from the Department of Education encouraging institutions of higher education to recognize transgender and gender non-conforming students’ right to protections under Title IX, Judge Gibson left Johnston, and other transgender students, without protection from sex discrimination. She wrote:

While Plaintiff might identify his gender as male, his birth sex is female … It is this fact … that is fatal to Plaintiff’s sex discrimination claim. Regardless of how gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender male, his sex is female.

In sum, this decision reflects a sobering reality for LGBTQ people, particularly transgender and gender non-conforming individuals: The government — more specifically, a judge — holds the power to determine if the law protects how you define yourself.

This example dramatizes just one way that our courts fail to live up to the promise of the motto “equal justice under law” by protecting the vulnerable among us from exclusion and discrimination. I’ll admit that several years ago the result in this case might have led me to give up on the courts as an avenue for change.

Recent decisions from the Supreme Court and other federal courts have prompted some progressives to view the courts as a once-relevant institution home only to disconnected jurists. When we as progressives write off the courts and treat them as spaces where our communities were never meant to triumph, we concede the power to speak from our lived experience as those affected by the law and to shift the balance of power within the judiciary.

In reality, the legal knowledge of our communities paired with our deeply personal understanding of how the courts’ decisions impact real people gives us a tremendous power to affect the composition of the courts and to create legal precedents that respect rather than ignore our communities’ needs.

Seamus Johnston’s experiences with the justice system are then instructive for progressives building long-term judicial strategies. His loss in the Western District of Pennsylvania is but one battle in a much longer struggle for social justice.

The courts have to matter for LGBTQ Americans and so many others who find themselves on the losing end of cases like Johnston’s. They have to matter because we cannot afford to write off institutions, elected officials, or organizations as permanent friends or enemies. Rather, if we truly believe another world is possible, we have to build it brick by brick, precedent by precedent, judge by judge.

PFAW Foundation

Arkansas Governor Does Only a Partial Retreat on RFRA

Yesterday, the Arkansas legislature approved a so-called "Religious Freedom Restoration Act" bill similar to Indiana's RFRA. Today, the governor surprised people by rejecting the bill as written and asking for changes. As CNN reports:

Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law.

The first-term Republican governor said he wants his state "to be known as a state that does not discriminate but understands tolerance."

While the requested change would remove some of the dangerous aspects of the bills that differentiated them from the federal version, it would still leave the door open to state-sanctioned discrimination in the name of religion.

The federal RFRA dates back to 1993, and neither its text nor its purpose empower anyone to bypass laws protecting LGBT people from discrimination. However, as PFAW Senior Fellow Elliot Mincberg has written, the Supreme Court drastically rewrote the law last year in its 5-4 Hobby Lobby decision:

[As Justice Ginsburg explained in her dissent,] the Court effectively rewrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

That's why Gov. Hutchinson's call for a bill that matches the federal RFRA does not solve the discrimination problem. A state law tracking the federal RFRA and passed after Hobby Lobby is far more likely to be interpreted by the courts along the same lines. This is especially so since the bill's supporters regularly cite their desire to "protect" businesspeople who are religiously offended by same-sex couples from serving them.

The Arkansas and Indiana RFRAs have features making them even more open to be used as vehicles for otherwise illegal discrimination than the federal RFRA as transmogrified by the Roberts Court. But if Gov. Hutchinson succeeds in getting a bill that matches the federal version, he still will not have accomplished his stated goal of making Arkansas "known as a state that does not discriminate."

PFAW

Gov. Pence's Claims Ignore Indiana "Religious Freedom" Law's History

As he has since signing Indiana's so-called Religious Freedom Restoration Act, Governor Mike Pence today insisted that the law does not allow discrimination. As reported in the Indianapolis Star:

[Pence] stressed that RFRA was about "religious liberty, not discrimination" and emphasized that the law does not give anyone the right to turn away customers on religious grounds.

"This law does not give anyone the right to discriminate...This law does not give anyone the right to deny services," he said.

Let's rewind the tape to the legislative debate over the bill. Senate Amendment # 4 would have added a key provision to the bill that would have made Gov. Pence's words accurate.

This chapter does not apply to:

(1) IC 22-9-1 (Indiana civil rights law); or

(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

However, the state Senate defeated this amendment by a lopsided vote of 10-40.

The Indiana House was equally insistent that the bill not be amended to provide any protection to state and local anti-discrimination laws. House Amendment # 5 would have added the following text to the law:

For purposes of this chapter:

(1) the protection of civil rights; or

(2) the prevention of discrimination;

is a compelling government interest.

Unlike the Senate amendment, this would not have completely exempted anti-discrimination laws from attack under RFRA. Nevertheless, this more moderate effort to make it harder to bypass such laws was still too much for the House, which overwhelmingly rejected the amendment in a 31-60 vote.

It would be nice to think that Governor Pence was right, and that this law didn't open the door to discrimination. But that is exactly what the law does, and its history makes that even clearer.  If Pence wants to "clarify" that the state's RFRA law won't allow denial of service, he can point legislators to amendment language that would make that as clear as day.

PFAW

Hobby Lobby Comes Home to Roost as States Consider "Religious Freedom" Legislation

This op-ed was originally published at The Huffington Post.

Over the last twenty years, 19 states have passed laws modeled on the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 with broad bipartisan support. But just this year, almost the same number, 15, have seen such bills introduced, generating enormous controversy across the country, particularly in Indiana where Gov. Mike Pence signed the new state RFRA into law.

Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it's a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court's rewriting of RFRA in Burwell v. Hobby Lobby.

Even before the Supreme Court agreed to decide the marriage equality issue, the far right has highlighted the supposed dangers to small businesses like bakers and florists who do not want to serve LGBT couples because of religious objections. Under RFRA as passed in 1993, and under the protection from the First Amendment's Free Exercise doctrine that it was meant to restore, RFRA wouldn't have offered much help. First, neither had been applied to non-religious corporations, which had never been thought to have religious freedom rights. Second, it would have been very hard to argue that a neutral law banning discrimination against LGBT people would have created a "substantial burden" on actual religious exercise, which is required to qualify for a RFRA-type exemption. For example, in one case the Supreme Court rejected the claim that requiring federal welfare recipients to submit social security numbers was such a burden even when it conflicted with an applicant's religious beliefs. And even if such a burden were created by obeying an anti-discrimination or other general law, pre-Hobby Lobby law would not have helped a religious claimant: as the Court ruled in rejecting a religious exemption to a requirement that a religious farmer withhold social security taxes, such an exemption would improperly "operate to impose the employer's religious faith on the employees" and others.

But then came Hobby Lobby.

In that case, writing for a bare majority of the Court, Justice Alito ruled that religious objections by a corporation's owners exempted them under RFRA from providing contraceptive coverage through insurance to employees under the Affordable Care Act. As Justice Ginsburg explained in dissent, rather than interpreting RFRA to restore prior case law, the majority interpreted it as going beyond prior Court decisions to maximize benefits to religious claimants. In particular, she explained, the Court effectively re-wrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the Court's re-writing of RFRA's language. Indeed, in communicating with supporters about the Indiana RFRA law, the far-right Family Research Council specifically called it the "Hobby Lobby bill."

Even better, rhetoric directed at outsiders could be cloaked in general language about protecting religious freedom, not attacking LGBT rights. Supporters could even invoke Democratic supporters of RFRA like President Clinton and claim that neither RFRA nor its state counterparts had been interpreted to allow discrimination, as Indiana Gov. Pence has tried to do. These claims ignore the fact that it wasn't until last year that the Supreme Court effectively rewrote the language in RFRA so that it was transformed from a shield for religious liberty into a sword against anti-discrimination protections. And previous supporters like President Clinton have made clear their opposition to this year's state RFRA proposals.

Under pressure, the neutral façade of recent state RFRA proposals has crumbled. When pushed to amend a state RFRA proposal in Georgia to make clear that it could not be used against anti-discrimination ordinances, a Georgia legislator admitted that one of the reasons for the bill was to allow it to be invoked by the small business owner who had religious objections to providing services to an LGBT couple. And when an amendment was added in the Georgia House Judiciary Committee to state that the RFRA bill was not to be used against discrimination laws, the bill was promptly tabled on March 26, with a supporter stating that the amendment would "gut" the bill.

As of now, the fate of RFRA bills in Georgia and elsewhere is uncertain and Gov. Pence has asked the legislature for an amendment to "clarify" that Indiana's RFRA law cannot be used to deny services to anyone. That would be a welcome step - one that flies in the face of the clear intent of some of the bill's backers, which was clearly to enshrine such a "right" for Indiana businesses. Language has been adopted elsewhere to make clear that state RFRAs cannot be used against anti-discrimination bills; such a provision is currently in Texas' RFRA, although there is a proposal to remove it. Before Hobby Lobby, such language might not have been necessary. After Hobby Lobby, it is crucial.

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

Discrimination Masked as Religious Freedom? Not in My Name.

This op-ed by Rev. Timothy McDonald III, co-chair of People For the American Way's African American Ministers in Action, was originally published at The Huffington Post.

Last week, a bill disguised as a "religious liberty" measure that would give a green light to discrimination was passed by the Georgia Senate and will now go to the House.

As a Baptist pastor, I feel called to weigh in on a proposal that is supposedly designed to protect religious rights in my state. I fully support every person's constitutionally-protected right of the free exercise of religion. The right to pray to whatever God you believe in and freely practice your religion is a fundamental one, and one that must be protected.

But I do not support this bill, which is not a true effort to protect First Amendment rights. And the fact that supporters in the state Senate quickly and unexpectedly brought it up in committee when no Democrats were present makes me wonder if even proponents aren't so sure of its merit.

The proposed bill is modeled on a national religious freedom bill that passed in 1993, and supporters claim that it would shield people of all religions from government intrusion. In reality, this is a bill that threatens to allow businesses and individuals to simply flout the laws they don't like. It threatens to turn "religious liberty" law from a shield to guard individual liberties into a sword to bring harm to others.

For example, what happens if medical workers, citing religious beliefs, decide that they won't treat gay or transgender people? If business owners decide that they won't serve Muslims or interracial couples? If landlords decide they won't rent to single women? Beyond anti-discrimination protections, what happens if individuals or business owners claim they are exempt from any number of laws they disagree with? What happens, for example, if employers decide that paying their workers a minimum wage goes against their religious beliefs? Do we want to live in a society where your legal rights depend on the religious beliefs of others in the community?

Basic rights and equality should never yield to discrimination.

Other religious leaders here in Georgia aren't fooled, either. Working with a group of more than 160 clergy across the state, we have been asking our elected officials to abandon this misguided project, urging them not to pass any so-called "religious freedom" legislation that could lead to widespread discrimination. Handing people the "right" to use the mantle of religious liberty to harm others? Not in our name.

It's clear that rather than fixing a problem, as good public policy should, this bill would create problems, and often for those most vulnerable among us.

Even former state attorney general Michael Bowers, who once fought in favor of anti-gay "sodomy" laws, has called the bill "nothing but an excuse to discriminate," saying it is "ill-conceived, unnecessary, mean-spirited, and deserving of a swift death in the General Assembly."

I agree. My faith tells me that I should stand up for the marginalized. That I should speak out against proposals that could deny basic rights to others -- especially when it's being done in the name of religion.

PFAW

PFAW Releases New Report on the Right's Efforts to Transform Religious Liberty from a Shield to a Sword

Last June, the Supreme Court gave certain for-profit corporations the right to deny women vitally important (and statutorily required) healthcare coverage that offends their employers' religious beliefs, claiming it was simply protecting the employers' religious liberty. Across the country, right wing extremists are seeking to empower individuals and business owners whose religious beliefs are offended by LGBT equality to exempt themselves from anti-discrimination laws – again, supposedly in the name of religious liberty. Conservative Christians aggressively seeking to deprive others of their legal rights regularly portray themselves as the victims of religious persecution.

People For the American Way has released a new report examining the many ways that religious liberty issues are increasingly coming up in public policy debates in communities across the nation. But this isn't religious liberty as it has been understood throughout our nation's history.

Authored by Senior Fellow Peter Montgomery, Religious Liberty: Shield or Sword? examines how the Far Right is working to transform this core American value from a shield protecting individuals' religious freedom into a sword that harms other people and undermines measures to promote the common good.

The report provides vital factual background and analysis to help readers better understand how religious freedom principles have traditionally been regarded, as well as how they are being twisted by a far right movement in an effort to reverse its fortunes as their substantive arguments are increasingly rejected by the American public. These distorting efforts come from conservative advocacy organizations, state and federal legislators, and even a narrow majority of the United States Supreme Court.

This report is an important tool to help understand and confront the Right in public policy debates across the country, as they increasingly seek to use religious liberty as a sword to deny rights to others, and as they continue to portray themselves as victims of religious persecution.

PFAW

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

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