CELEBRITY FRIDAY: Patrick Bumatay Becomes First Openly LGBT Federal Appellate Court Judge

Openly gay, Filipino Patrick Bumatay, 41, was confirmed by the U.S. Senate by a 53-40 vote to a lifetime seat on the 9th U.S. Circuit Cort of Appeals. Bumatay is the first openly gay man to be appointed to the federal judiciary at the Circuit Court level (one rung below the U.S. Supreme Court) and is also the first Filipino to serve in that capacity. His nomination was opposed by both of California's U.S. Senators, Kamala Harris and Dianne Feinstein, which prior to the Trump administration would have doomed his candidacy. He was also opposed by basically every major LGBT and/or civil rights organization. He is Trump's 49 confirmed appointee to the circuit courts.

#LGBT #EqualityDay June 26 Anniversaries: Obergefell (2015), Windsor (2013) and Lawrence (2003)

Today is a big day in LGBT equality. Three landmark Supreme Court decisions have previously been announced on June 26 (2003, 2013 and 2015), all written by Justice Anthony Kennedy, who retired last  year and was replaced by Brett Kavanaugh. Respectively, these cases overturned bans on private non-commercial sexual conduct (Lawrence v Texas), struck down the  Defense of Marriage Act which purported to prohibit recognition of legal same-sex marriages by the federal government (United States v Windsor) and struck down all state laws banning marriages of same-sex couples (Obergefell v Hodges).

Tomoorow is the last day of the 2018-2019 Supreme Court term and some existing cases (on the legality of partisan gerrymandering and pretextual manipulation of the 2020 Census for partisan gain by the Trump administration) will be decided.

Fingers crossed!

GODLESS WEDNESDAY: Supreme Court Hears Oral Arguments Today in Church-State Separation Case

Today the United States Supreme Court is hearing oral arguments in an important case involving the separation of church and state. The case is The American Legion v. American Humanist Association and involves a 93-year-old World War 1 memorial called the Bladensburg Peace Cross erected on public lands and maintained using public funds in Bladensburg, Maryland.

The questions before the Court are:

(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

NPR's Nina Totenberg claims that the Court is expected to reverse the 4th Circuit's holding that the monument has the "primary effect of endorsing religion and excessively entangles the government in religion." The real question is how far will the Court's conservative majority go in dismantling the wall between church and state in this case?

Hat/tip to SCOTUSblog

POLL: More Oppose Kavanaugh #SCOTUS Nomination Than Support It

Brett Kavanaugh, Donald Trump's choice to replace Anthony Kennedy on the United States Supreme Court now has the dubious distinction to become the first high court nominee  in modern history to have more people expressing opposition to his elevation than support it.

NBC News reports:

In the poll — which was conducted Sunday (when the accusation from Christine Blasey Ford was first made public) through Wednesday — 38 percent of voters say they oppose Kavanaugh’s nomination to serve on the nation’s highest court, including 27 percent who “strongly” oppose him. 

That’s compared with 34 percent who support his nomination, including 25 percent who “strongly” support him. Twenty-eight percent say they don’t enough to have an opinion.

The support for Kavanaugh has gotten worse over time.

The next Supreme Court term begins October 1.

#EqualityDay: Anniversary of Multiple LGBT Legal Victories!

Happy #EqualityDay! Today is June 26, which is an auspicious day for LGBT equality in the United States. In 2003, the Supreme Court finally affirmed the basic humanity of LGBT citizens and eliminated the remaining state laws banning sodomy in Lawrence v. Texas; In 2013, the state struck down the odious Defense of Marriage Act which had prohibited the federal government from recognizing legal same-sex marriages in United States v. Edith Windsor and also ruled in Hollingsworth v. Perry that California's Proposition 8 was unconstitutional; in 2015's Obergefell v. Hodges the Supreme Court struck down all state-based bans on recognition of same-sex marriage (including California's Proposition 8) effectively legalizing marriage equality nationwide! (A curious fact is that all of these LGBT-supportive decisions were written by Anthony Kennedy, a Reagan appointee and Republican conservative jurist.)

QUEER QUOTE: 2nd U.S. Circuit Court Rules 10-3 That Sexual Orientation Is Covered Under 1964 Civil Rights Act

Wow! There's been a big ruling from a federal appellate circuit court articulating an interpretation of federal law that I have been advocating for for over 2 decades. The 2nd U.S. Circuit Court of Appeals ruled 10-3 in Zarda v. Altitude Express in a rare en banc decision that sexual orientation is covered under the 1964 civil rights prohibition against sex discrimination in Title VII. In the words former Vice President Joe Biden would say, this is a "big ******* deal."

An excerpt from the  Zarda decision is today's Queer Quote:

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

To me this has been an obvious constitutional interpretation for decades and should have been part of the legal reasoning for why same-sex marriage is required under the constitution (in addition to being sex discrimination, traditional marriage laws are also sexual orientation discrimination). Judge José Cabranes pointed this out by concurring in the judgement of the majority with this brief decision (given here in its entirety):

This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of … sex.” Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.

That should be the end of the analysis.

Interestingly, the second circuit is now the second federal appellate court to rule in favor of gay rights being civil rights, while previously the 11th U.S. Circuit Court of Appeals had ruled the other way last year.

The 1964 Civil Rights Act is one of the most hallowed achievements of the Civil Rights era so it is quite exciting that judicial statutory interpretation is growing on the side of inclusion of gay rights

Exciting news!

GODLESS WEDNESDAY: Is This Cross A "Secular Monument"?

There is a federal lawsuit ongoing around the cross shown in the image at the top of this post. A U.S. District Court judge has ruled that this large christian cross in Bayview Park in Pensacola, Florida must be removed within 30 days.

The attorneys-general of 14 states have filed an amicus brief saying that this cross is a "secular monument." Here are some excerpts:

"The mere fact that these monuments consist of crosses and other religious symbols does not negate their secular purpose or their historical and cultural significance."  

and 

"Ultimately, if it were accepted by this Court, the district court’s reasoning would threaten countless monuments across the Circuit. As detailed in the City’s appendix, state and local parks, squares, and government buildings boast veterans’ memorials that contain religious imagery, including crosses, citations to scripture, and the like."

That is exactly the point! There are so many government buildings which include religious imagery that are claimed to have "historical" and "societal" significance when the religious message is clear to others. The question is who will the federal judiciary agree with?

CELEBRITY FRIDAY: Edie Windsor, 88, Is Dead

Edith Windsor was the named plaintiff in the landmark civil rights lawsuit, Windsor v. United States, which challenged the constitutionality of the 1996 "Defense of Marriage Act." In 2013, the United States Supreme Court struck down DOMA and two years later marriage equality was the law of the land following another high court decision in Obergefell v. Hodges. Windsor died this week at age 88, and President Barack Obama issued a statement in memoriam:

America’s long journey towards equality has been guided by countless small acts of persistence, and fueled by the stubborn willingness of quiet heroes to speak out for what’s right.  

Few were as small in stature as Edie Windsor – and few made as big a difference to America. 

I had the privilege to speak with Edie a few days ago, and to tell her one more time what a difference she made to this country we love.  She was engaged to her partner, Thea, for forty years.  After a wedding in Canada, they were married for less than two.  But federal law didn’t recognize a marriage like theirs as valid – which meant that they were denied certain federal rights and benefits that other married couples enjoyed.  And when Thea passed away, Edie spoke up – not for special treatment, but for equal treatment – so that other legally married same-sex couples could enjoy the same federal rights and benefits as anyone else. 

In my second inaugural address, I said that if we are truly created equal, then surely the love we commit to one another must be equal as well.  And because people like Edie stood up, my administration stopped defending the so-called Defense of Marriage Act in the courts.  The day that the Supreme Court issued its 2013 ruling in United States v. Windsor was a great day for Edie, and a great day for America – a victory for human decency, equality, freedom, and justice.  And I called Edie that day to congratulate her. 

Two years later, to the day, we took another step forward on our journey as the Supreme Court recognized a Constitutional guarantee of marriage equality.  It was a victory for families, and for the principle that all of us should be treated equally, regardless of who we are or who we love. 

I thought about Edie that day.  I thought about all the millions of quiet heroes across the decades whose countless small acts of courage slowly made an entire country realize that love is love – and who, in the process, made us all more free.  They deserve our gratitude.  And so does Edie.  

Michelle and I offer our condolences to her wife, Judith, and to all who loved and looked up to Edie Windsor.

Hat/tip to Talking Points Memo

CELEBRITY FRIDAY: President Trump Nominates Neil Gorsuch for #SCOTUS

President Donald Trump nominated 10th Circuit Appellate Court judge Neil Gorsuch, 49(!) to the United States Supreme Court on Tuesday January 31st.

The New York Times reports:

While he has not written extensively on several issues of importance to many conservatives, including gun control and gay rights, Judge Gorsuch has taken strong stands in favor of religious freedom, earning him admiration from the right. 

In two prominent cases, both of which reached the Supreme Court, he sided with employers who had religious objections to providing some forms of contraception coverage to their female workers. 

He voted in favor of Hobby Lobby Stores, a family-owned company that objected to regulations under the Affordable Care Act requiring many employers to provide free contraception coverage. Similarly, he dissented from a decision not to rehear a ruling requiring the Little Sisters of the Poor, an order of nuns, to comply with an aspect of the regulations. 

The Supreme Court ruled in favor of Hobby Lobby in 2014 and vacated the decision concerning the Little Sisters of the Poor in 2016.

And so it goes.

QUEER QUOTE: SCOTUS Agrees To Hear Important Transgender Rights Case From Virginia

The United States Supreme Court agreed to hear the case of Gavin Grimm, a 17-year-old transgender boy who (with the help of the ACLU) is suing the Gloucester County School Board in Virginia for the right to use the bathroom associated with his gender identity.

Today's Queer Quote is from the granting of certioari by SCOTUS in Grimm:

 (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

SCOTUSblog describes the Grimm case in this way:

Although the controversy over the school board’s policy requiring students to use the restrooms and locker rooms that match the gender that they were assigned at birth instantly became the highest-profile case of the court’s term so far, the dispute actually centers on more technical (and, some would say, rather dry) legal issues. In this case, the district court ruled against G.G., relying on a 1975 regulation that allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex. But, in January 2015, the Department of Education’s Office of Civil Rights issued an opinion letter stating that, if schools separate students in restrooms and locker rooms on the basis of their sex, a “school generally must treat transgender students consistent with their gender identity.” In light of the 2015 letter, the U.S. Court of Appeals for the 4th Circuit reversed and ruled for G.G. It relied on the Supreme Court’s 1997 decision in Auer v. Robbins, which held that courts generally should defer to an agency’s interpretation of its own regulation. 

In granting review today, the justices sidestepped the most prominent issue they had been asked to take on: whether they should overrule their decision in Auer, which has been the target of criticism by conservative lawyers and jurists. Instead, they agreed only to weigh in on two other, lower-profile questions presented in the school board’s petition: whether courts should defer to a letter, like the Department of Education opinion letter in this case, that was issued as part of the specific dispute before the court; and whether the Department of Education’s interpretation of the federal civil rights laws and the 1975 regulation as requiring schools to treat transgender students consistent with their gender identity should be given effect. 

The school board’s case, as well as the others in which the justices granted review today, likely will be argued during the court’s February sitting, which begins on February 21.

Here at MadProfessah.com we will be  watching this case closely. The primary takeaway should be that although marriage equality is now the law of the land, the fight for full LGBT equality is clearly not over. And the United States Supreme Court will almost certainly play a role in accomplishing this.

Hat/tip to Kenneth in the 212

QUEER QUOTE: Democrats Praise 4th U.S. Circuit Ruling In Favor Of Transgender Student

The 4th U.S. Circuit has upheld the Obama Administration's Education Department non-discrimination policy in a dispute with a Virginia school district over the rights of a transgender student to access education according to their preferred gender identity. The ruling is in the case of transgender male student Gavin Grimm in his lawsuit against the Gloucester County School Board, who has enacted a policy that said that every student had to access restrooms and changing facilities based on their "biological sex at birth" and not their gender identity.

Chris Geidner of Buzzfeed reports:

The decision is a big victory for the Obama administration, which weighed in at the appeals court to support Grimm’s challenge, and the Equal Employment Opportunity Commission, which has been pressing the case for protecting LGBT people under existing civil rights laws since 2012.  

The appeals court had heard the arguments in January, and Tuesday’s ruling is the first such ruling on the Obama administration’s policy — which it also has advanced regarding the sex discrimination ban under Title VII of the Civil Rights Act of 1964. 

Among the states included in the 4th Circuit is North Carolina, which recently passed a law limiting restroom use in government facilities — including schools and universities — to that which corresponds with a person’s “biological sex.” The ACLU, which is backing Grimm’s suit, also has brought suit against the North Carolina law.

The Democratic National Committee sent the following statement praising the ruling:

“This court victory affirms that there is no commonsense reason to bar transgender students from using the restroom that aligns with their gender identity and that doing so is discriminatory and harmful. This ruling sets precedent in five states, including North Carolina, where Republican legislators and the Republican governor have embraced the exact type of discrimination that the court today has overruled. Republican legislators who continue to push anti-LGBT measures and the Republican presidential candidates who fan the flames of discrimination with ignorant rhetoric have been exposed by this ruling for what they’re truly peddling. Just this week, one of the Republican presidential candidates told victims of discrimination to ‘get over it.’ Well, it’s time for the Republican Party to get over their anti-LGBT bias and join the rest of the country in embracing the full equality of every American.”

 Congrats!

Obama Nominates Merrick Garland for SCOTUS Vacancy Caused By Scalia's Death

Today President  Barack Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the  D.C. Circuit to fill the vacancy on the United States Supreme Court caused by the death of Antonin Scalia on February 13.

Garland, 63, is currently the chief judge of the U.S. Court of Appeals for the D.C. Circuit. A former prosecutor, he's also viewed as a moderate. And he has cultivated a reputation for openness and collegiality at the D.C. Circuit, a bench that's sometimes called the second most important in the land. 

Garland will visit Capitol Hill on Thursday to begin meeting with legislators, Obama said. 

After the announcement was made, Senate Majority Leader Mitch McConnell reiterated his pledge that the Senate would not take any steps toward confirming an Obama nominee. McConnell's fellow Republicans in Congress echoed his comments.

It should be noted that if the Senate does not hold hearings on Obama's choice it will be the first time in the modern era such obstruction has occurred. Despite Senator McConnell's statements, at least 8 Republican Senators have said that they will meet with Judge Garland.

Ding Dong Scalia Is Dead! Obama Will Get 3rd SCOTUS Pick!

Wow! There are multiple reports (first broken by the San Antonio Times) that 79-year-old Antonin Scalia, the longest-serving member of the United States Supreme Court (appointed by President Ronald Reagan in 1986) has been found dead at a ranch in Texas.

This means that President Barack Obama will have a 3rd opportunity to appoint a Justice to the Court. Previously he has appointed Sonia Sotomayor (2009) and Elena Kagan (2010)

The Republicans will almost certainly claim there is not enough time to approve a justice who will be breaking the now 4-4 tie between left-leaning and right-leaning remaining on the Court.

Regardless, the Supreme Court will become a major factor in the 2016 presidential race and that has to increase turnout and help the Democratic nominee.

QUEER QUOTE: Hillary Clinton Blasts Roy Moore's Attempts To Obstruct Marriage Equality in Alabama

Our first Queer Quote of 2016 comes from Hillary Clinton who blasted Alabama Chief Judge Roy Moore's bizarre attempt to prevent marriage equality in Alabama. Here's the quote:

“Marriage equality is now the law of the land—including in Alabama. Today’s unconstitutional order reminds us that, despite the Supreme Court's ruling that all Americans have the right to marry the person they love, our work is far from over.  There are still judges who are determined to stand in the way of people's rights.  There are still politicians who argue the Court got it wrong and states should ignore its ruling.  We need to ensure that marriage equality is guaranteed and enforced nationwide.   And we need to fight discrimination against LGBT Americans wherever it occurs.  There are places where you can get married on Sunday and are at risk of being fired from your job or evicted from your home on Monday because you're gay.  That's not how it should be in the United States of America.  As President, I'll fight for the equal rights of all Americans, no matter who they are or who they love.”

Hat/tip to New Civil Rights Movement 

GODLESS WEDNESDAY: Rogue Kentucky County Clerk Demonstrating Necessity Of Church-State Separation

In case one needed more evidence of why the separation of church-state is so important, the ongoing saga of  Kim Davis (the rogue Rowan County, Kentucky clerk) who has been refusing to issue marriage licenses despite exhausting all her possible legal avenues. (The United States Supreme Court denied her request for a stay on an order from a federal district court judge to issues marriage licenses on Monday night.)

On Tuesday, Davis responded to a question asking what authority she was using to continue denying marriage licenses to duly qualified married couples by saying "God's authority."

Davis and her Deputy Clerks have been ordered to appear in court on Thursday to explain to federal judge David Bunning why she should not be sanctioned (held on contempt of court) for not following his court order. Maybe this saga will be over soon and the proper relationship between church and state will be restored.

QUEER QUOTE: Federal Judge Issues Order Enjoining Alabama Officials To Issue Marriage Licenses

Federal District Court Judge Callie Granade issued an order enjoining probate judges in Mobile, Alabama from refusing to issue marriage licenses to same-sex couples, despite spurious declarations from Chief Justice Roy Moore of the Alabama State Supreme Court that the fact that the United States Supreme Court refusal to issue  a stay on Granade's previous order striking down Alabama's discriminatory marriage amendment caused marriage equality to go into effect on Monday February 9th.

This excerpt from the federal order is today's Queer Quote:

Accordingly, the Court once again makes the following declaration: It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage. DONE and ORDERED this 12th day of February, 2015. 

Boom!

Hat/tip to Chris Geidner 

NOW THERE ARE 37! Marriage Equality Comes To Alabama!

With the Supreme Court's 7-2 vote to deny their request for a stay on a federal judge's ruling striking down Alabama's ban on marriage equality, the Cotton State becomes the 37th in the union to allow same-sex couples to get married. Only Justices Scalia and Thomas would have approved Alabama's request for a stay.

Same-sex couples are getting married in the majority of the counties in Alabama today, despite attempts by Chief Justice Roy Moore and Governor Robert Bentley to not follow the rule of law as clearly articulated by the federal judiciary. Gee, when has that happened before?

Hat/tip to Joe Jervis

Marriage Equality Cases Will Be Decided By US Supreme Court This Term!

Great news! The United States Supreme Court agreed to hear (granted certioari) in a number of consolidated cases from all four states in the Sixth Circuit that could lead to a ruling striking down all state-based laws that prohibit same-sex couples from getting married and states from recognizing those marriages. Two years ago on June 26, 2013 the Court ruled that the Congress could not enact a law to prohibit recognition by legally married same-sex couples for federal purposes.

There are currently 36 states (and the District of Columbia) with marriage equality, so the ruling by the Supreme Court would likely strike down the bans in the 14 remaining states.

The specific question the Supreme Court will ask parties to address in briefs and oral arguments are:

 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

It is likely there will be oral arguments in April (90 minutes on Question 1, 60 minutes on Question 2) and a final decision issued in the case(s) by June 2015.

Woo hoo!

Hat/tip to Chris Geidner!

Supreme Court Refuses To Delay Florida Marriage Equality From Going Into Effect Jan. 5

Wow! The United States Supreme Court has denied Florida's request for a stay of a federal district court judge's decision ruling that Florida's 2006 state constitutional amendment banning marriage equality violates the federal constitution. The Court said that Justices Thomas and Scalia would have granted the petition for a stay.

This is a VERY big deal, because this is the first time the High Court has let marriages go into effect as a result of a mere district court decision, when there was no precedent for marriage equality in the controlling appellate circuit of jurisdiction. Florida is in the 11th Circuit, and that appellate circuit has not ruled in favor of marriage equality (and in fact has some anti-gay decision in its not too recent past). The current legal skirmish the Supreme Court decided was about what should happen while the merits of the state's appeal get determined. Almost a year ago, in Utah's marriage equality case, the Supreme Court unanimously granted a stay putting a federal district court decision in Kitchen v Herbert on hold while the 10th Circuit was considering that appeal. In both cases the appellate circuit had refused to grant the stay while they considered the appeal and the state appealed to the Supreme Court in both cases. In the Utah case, the 10th Appellate Circuit ruled against the state on the merits on appeal. Ultimately, the Supreme Court refused to hear Utah's appeal of that loss, allowing marriage equality to go into effect in the 4th, 10th and 7th circuits. The denial of a stay in Armstrong v. Brenner (the Florida case) demonstrates how swiftly the tide has turned in favor of marriage equality, even at the Supreme Court level. 11 months ago they granted a similar petition, 9-0, on Friday they denied it 2-7.

The Washington Blade reports:

In August, U.S. District Court Judge Robert Hinkle ruled against the state’s ban on same-sex marriage, known as Amendment 2, but placed a stay on his order until 91 days passed after the appeals process was completed in the Utah, Oklahoma and Virginia marriage cases. When the U.S. Supreme Court refused to review these cases, it set for date for same-sex couples to be able to marry in Florida starting Jan. 5. 

Bondi tried to extend the stay on the same-sex marriages as she continued to defend the law in court, but her requests were by denied by the district court as well as the U.S. Eleventh Circuit Court of Appeals, which ordered the stay to be lifted “at the end of the day” on Jan. 5.  

In a statement, Bondi said Florida will acquiesce to the Supreme Court’s decision to allow the stay to expire after Jan. 5 as initially ordered by the district court. 

Hat/tip to Equality On Trial

U.S. Senate Confirms 10th Openly LGBT Federal Judge Under Obama, Robert Pittman of Texas

Robert L. Pittman of Texas has become the first openly gay federal judge in Texas and the 10th openly LGBT member of the federal judiciary nominated by President Barack Obama thanks to actions the Senate took before adjourning yesterday.