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A Tribute to RBG’s Pro-LGBTQ Legacy

By |2020-10-14T12:17:42-04:00October 14th, 2020|Opinions, Viewpoints|

People who have been in my home will note that most of the wall space in my 840-square-foot abode is adorned by theatrical posters of plays and musicals, most of which would be regarded as “obscure.” In addition to all those colorful and varied posters, there is wall space reserved for a wonderful piece of artwork by our community’s much-beloved Charles Alexander, who so kindly and generously gifted it to me. Also hanging on limited wall space in my kitchen is a framed poster, featuring the silhouette of Justice Ruth Bader Ginsburg, with a quote from her: “Fight for the things you care about but do it in a way that will lead others to join you.”
Like so many others, I’m still mourning the loss of RBG and her contributions to the world of jurisprudence, particularly in the area of civil rights and social justice — now even more so because of the rush by the Trump Administration and Mitch McConnell to fill her seat with a judge whose legal viewpoint to civil rights is so vastly different from that of Justice Ginsburg.
If the Republican Senate majority is successful in confirming Amy Coney Barrett to the U.S. Supreme Court before the Nov. 3 election, there is so much at stake for those who care about access to health care, a woman’s right to choose and LGBTQ rights.
During RBG’s 27-year tenure on the Supreme Court, she had the opportunity to weigh in on each and every seminal LGBTQ rights case. Although she was not the author of the majority opinions in each of these decisions, she sided with the majority each and every time, affirming the dignity of LGBTQ people and challenging policies and practices that treated our community unfairly. The following are those decisions:

Romer v. Evans (1996): Here, the Supreme Court struck down a Colorado voter initiative that prevented state and local governments from passing laws protecting LGBTQ people from discrimination. The Court majority held that laws targeting LGBTQ people for discriminatory treatment and motivated by animus against them violate the Equal Protection Clause of the Constitution. This decision helped provide a template for challenging anti-LGBTQ laws, policies, and practices at both the state and federal levels of government.

Lawrence v. Texas (2003): This decision overturned the previous 1986 Bowers v. Hardwick decision upholding laws that criminalized private same-sex sodomy between consenting adults. In addition to criminal penalties, these laws often were used to justify discrimination against LGBTQ people by defining them solely by presumed sexual behaviors. In striking down Texas’ criminalization of same-sex sodomy as unconstitutional, the Court majority recognized that LGBTQ people are to be afforded the same privacy interest in their intimate relationships as heterosexuals.

Windsor v. United States (2013): The Court struck down a provision of the federal Defense of Marriage Act that prohibited federal recognition of legal same-sex marriages. During oral arguments, Justice Ginsburg asked particularly pointed questions, including whether the law imposed “two kinds of marriage — the full marriage and then this sort of skim-milk marriage” for same-sex couples. The legal rationale for overruling DOMA paved the way for the Court majority two years later to strike down state laws, including Michigan’s, that prohibited same-sex couples from marrying.

Obergefell v. Hodges (2015): This was the landmark marriage equality decision where the Court majority held that the right to marry is a fundamental constitutional right that cannot be denied to same-sex couples and that the right to marry includes the legal benefits of marriage.

Masterpiece Cake Ltd v. Colorado Civil Rights Commission (2018): This decision involved a Colorado baker who refused to bake a cake for a same-sex couple who were planning to marry, citing his religious beliefs. Here the Court majority reversed the Colorado courts’ discrimination charges against the baker, citing animus towards the baker’s religious beliefs on the part of the Colorado Civil Rights Commission. The Court majority, however, did not say that discrimination against LGBTQ people in public accommodations — such as a bakery — based on religious beliefs is OK. The Court reaffirmed the government’s interest in enforcing civil rights laws — including those that protect LGBTQ people — and that when a business is open to the public, it has to serve the public. Justice Ginsburg dissented from this decision because she did not believe that the facts presented showed hostility or animus towards the baker’s religion to result in this reversal. Justice Ginsburg’s dissent demonstrated her concern that religion not be used as a basis to justify discrimination against LGBTQ people in non-religious settings. Another reason her voice will be very much missed is that on Nov. 4, the Supreme Court will hear arguments in the case of Fulton v. City of Philadelphia, a case that will determine whether faith-based foster care agencies that have government contracts can discriminate against LGBTQ families who wish to become foster parents, citing the agencies’ religious beliefs.

Bostock v. Clayton County (2020): In June 2020 the 6-3 Supreme Court decision held that employment discrimination against employees because they are LGBT constitutes sex discrimination in violation of Title VII, the federal civil rights law that prohibits such discrimination in employment. This landmark decision provides a remedy to LGBTQ people, particularly those who live in states, like Michigan, that do not provide explicit protections on the basis of sexual orientation and gender identity in their civil rights laws. I attended the Supreme Court hearings in the three cases — one of those cases involved our plaintiff Aimee Stephens — and observed Justice Ginsburg demonstrate her mastery regarding Title VII law and sex employment discrimination cases, through her sharp questioning during oral arguments. Although looking frail, her voice was strong and her comments were highly focused on the issue what is discrimination because of sex.

During her almost three-decade tenure on the Court, RBG was a friend and ally to the LGBTQ community and on the right side of every historic LGBTQ civil rights case. In a year where we have lost two civil rights giants, John Lewis and now Ruth Bader Ginsburg, we must commit ourselves to help carry on their work. We need to ensure that RBG’s legacy continues through our courts. The fight for LGBTQ rights and equality is a fight that we all need to care about and we have to lead others to join us.

About the Author:

Jay Kaplan is the Nancy Katz & Margo Dichtelmiller LGBTQ+ Rights Project staff attorney for the ACLU of Michigan.
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