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NCLR’s Supreme Court Win This Week, and Other Moments That Build a Movement

Monday marked two important moments at NCLR. First, we celebrated the second anniversary of winning the freedom to marry nationwide at the U.S. Supreme Court in Obergefell v. Hodges. Being a part of the legal team that won that landmark and transformative victory for our community will always be a highlight of my legal career. Also on Monday, NCLR won our third U.S. Supreme Court victory in two years, Pavan v. Smith. In this case, we represented two married same-sex couples who sued the state of Arkansas for refusing to put the names of both parents on their children’s birth certificates as the state does for all other married couples, regardless of their biological connection to their children.

Pavan was a decisive victory for NCLR. The Court “summarily reversed” the Arkansas Supreme Court, finding its decision so clearly erroneous that the Supreme Court reached a decision without requiring oral arguments or any additional briefing. Summary reversals are extremely rare and happen only when a lower court disregards clearly established law. In Pavan, the Court concluded that the Arkansas Supreme Court’s decision directly flouted Obergefell by denying “married same-sex couples access to the ‘constellation of benefits that the Stat[e] ha[s] linked to marriage.’”

The newest member of the Court, Neil Gorsuch, dissented, joined by Justices Alito and Thomas. That Justice Gorsuch would endorse such an obvious attempt to disregard Obergefell is deeply troubling and confirms the grave concerns that NCLR and other LGBTQ legal groups raised during his nomination process.

The Court’s ruling in Pavan is all the sweeter because it comes on the heels of a similar victory just last year. In V.L. v. E.L., NCLR won another summary reversal – this one unanimous – when the Supreme Court ruled that the Alabama Supreme Court had wrongly denied recognition of our lesbian client’s adoption of their three children. In both the case Monday and the one last year, the Court’s opinions, which are traditionally unsigned, were unwavering in their rejection of the actions and reasoning of the courts below.

But not all the news from the Court on Monday was good. On the same day, the Court allowed key portions of the Trump Administration’s Muslim Ban to go into effect pending the Court’s review of lower court rulings declaring the ban unconstitutional.

The Court also agreed to review Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a Colorado Court of Appeals decision holding that businesses cannot refuse to serve same-sex couples based on the business owner’s religious beliefs.

The Court’s decision to hear this case is troubling; however, we are hopeful that as it has done in the past, the Court will reject the dangerous notion that commercial enterprises should be able to violate anti-discrimination laws in the name of religion. In fact, the last time the Court considered a closely related issue, it did so in another NCLR case, Christian Legal Society v. Martinez. In that case, the Court soundly rejected the claim that religious student groups have a right to violate a public university’s anti-discrimination rules. If the Supreme Court were to reverse course in Masterpiece Cakeshop and embrace such a radical position, the ramifications would be potentially catastrophic for the future of all anti-discrimination laws.

NCLR filed a friend of the court brief in the Colorado court emphasizing the importance of public accommodation protections, which not only ensure that people can receive needed services, but also protect personal dignity and promote equal opportunity for members of historically disadvantaged groups. We’ll be back again to support our colleagues at the ACLU as they defend the Colorado court’s decision before the Supreme Court this fall.

So even as we celebrate our victories present and past, we are reminded every day of the tremendous threat this moment poses both to our community and to the entire nation. This moment requires a level of vigilance and engagement and energy I have not seen in my lifetime. But I know that movements are born of moments like this.

Whether this administration or others are attacking same-sex couples, refugees, immigrants, healthcare, transgender people or people of color, sitting idly is NOT an option. Engage, push back, support NCLR and other LGBTQ organizations, and show up.

We will have more victories yet…

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Standing Up to Attempts to Take Down Marriage Equality.

In North Carolina this week, anti-LGBTQ extremists tried to do the unthinkable. They introduced House Bill 780, also known as the “Uphold Historical Marriage Act” in an attempt to turn back the clock and, once again, whip up anti-LGBTQ sentiment. The bill directly challenges the Supreme Court’s 2015 marriage equality ruling in Obergefell v. Hodges by seeking to nullify same-sex couples’ marriages.  

North Carolina Governor Roy Cooper weighed in yesterday: “This bill is wrong. We need more LGBT protections, not fewer.” And Republican House Speaker Tim Moore noted that he intends for this bill never to see the light of day, that it will not be debated. And it will not be voted on.

But before these elected leaders took a stand, when news of this proposed legislation was first being broadly covered by media, NCLR received questions from LGBTQ people both inside and outside North Carolina about what to expect and whether states have the ability to undermine Obergefell. In the midst of an administration that has stirred so much conflict and division, and has taken steps to rollback protections for LGBTQ people, we understand these concerns. And we are committed to continuing to take a stand for you and your families. Here’s a link to a helpful legal analysis about the future of Obergefell written by my friend and colleague at NCLR Shannon Price Minter that we shared after the 2016 election: “Now That Trump Has Been Elected, Can Our Marriage Be Undone?”

Since 1977, the National Center for Lesbian Rights has fought to protect and strengthen the rights of LGBTQ families. And that commitment was never clearer than in our work as a key part of the legal team that secured marriage equality. And in our work every day to protect those rights despite extremist factions that seek to undermine and chip away at these protections.

Please continue to stand with us in our work to oppose legislation across the country that seeks to undermine Obergefell. Although this Supreme Court case is settled law, some state officials falsely state that Obergefell does not require states to treat married same-sex couples equally and are attempting to pass laws in support of that notion. Last month, NCLR filed a petition for writ of certiorari, an official request that a case be heard before the U.S. Supreme Court, on a recent Arkansas Supreme Court decision holding that Obergefell does not require states to treat same-sex parents equally with regard to the issuance of birth certificates for their children. We also recently filed a brief in the Texas Supreme Court, opposing arguments by Texas state officials that Obergefell does not require governments to pay equal employment benefits to same-sex spouses.

At NCLR, we know that we must remain vigilant. Our courts matter, and the judges appointed to preside over those courts matter too. (Read our recent piece in The Advocate, “7th Circuit Victory for Lesbian Worker Shows Why Judges Matter.”) That’s why NCLR’s Washington, D.C. office is on the ground every day educating Congressional staffers, working with other national leaders to fight for a fair and objective Supreme Court, and making sure that your concerns are being heard at the highest levels.

We’re here for you.

If you have legal questions or hear about anything similar happening in your state, call the NCLR Helpline at 1.800.528.6257.

Stay strong,

Kate