Speakers at an American Bar Association-sponsored panel Tuesday on litigating LGBT-rights issues before a post-Justice Anthony Kennedy U.S. Supreme Court expressed anxiety and some strains of hope for current and future cases.
At the same time, they outlined litigation strategies that included both moving the fight back to the state courts and directing the federal courts to precedent that Kennedy helped to create.
“The Supreme Court is not the only court in the country,” said panelist Joshua Matz, an appellate and constitutional litigator at Kaplan Hecker & Fink and a former law clerk to Justice Anthony Kennedy, who was known for being both a gays-rights champion and a crucial swing vote on the high court.
“In some respects,” Matz said, “I think what we’re about to see [is that] it will be very difficult to affirmatively prevail” in the federal courts on a number of gay and transgender-rights issues, especially at the Supreme Court, “unless [justices] are bound by stare decisis.”
But Matz pointed out that it has only been in the last six years or so that the gay- and transgender-rights movement has actively looked to the federal courts and the Supreme Court to advance its cause.
For decades, the movement had focused on using state courts and state legislatures to make progress and, in fact, the strategy often had been “don’t go to the Supreme Court and don’t make arguments that will get you there,” he said.
Now, given the makeup of the Supreme Court, with the more conservative Justice Brett Kavanaugh replacing Kennedy and with President Donald Trump’s other appointment of Justice Neil Gorsuch, “the fear is that [the justices] are going to actively take up cases” and issue rulings that will undercut gay and transgender-rights issues “that we’ve already won,” Matz said.
Therefore, on certain key issues “we may be playing defense in the federal courts” while taking up issues in the state courts, said Matz, who noted that he is proudly gay and married, and that some of the rights issues are personal to him.
Still, neither Matz nor any of the panelists indicated that the battle for increased LGBT-community rights, through decisions of the Supreme Court, is lost or will not be fought vigorously.
The panel, which included Melissa Sherry, a Latham & Watkins partner and member of the firm’s Supreme Court & Appellate Practice, and Douglas NeJaime, a Yale Law School professor focused on family and constitutional law, made clear that Kennedy’s court writings and a number of past court decisions left precedent and language that will be used to influence the high court’s more conservative, textualist-based justices.
Led by moderator Mary-Christine Sungaila, a partner and appellate litigator at Haynes and Boone, the panel addressed key LGBT-rights issues now moving through the courts, including an issue that just last week the Supreme Court announced it will decide: Whether the nation’s major workplace anti-bias law, Title VII of the 1964 Civil Rights Act, bans discrimination on the basis of sexual orientation and transgender status.
The U.S. Courts of Appeals for the Second and Seventh circuits have split with the Eleventh Circuit on the issue; and the Equal Employment Opportunity Commission and the Trump administration have parted ways on it. The EEOC has reportedly said that Title VII’s protections do extend to gay and transgender workers while the Trump administration has reportedly said they don’t.
Matz pointed out that despite many in the gay and transgender communities being in an uproar after the Supreme Court’s announcement—Twitter, he said, was full of “fire emojis”—it “was the right thing to do” for the justices to grant cert on the Title VII issue given the circuit courts’ split.
He and other panelists noted that the cases and issue may present an interesting question for the more conservative textualists on the high court, since Title VII has been read by some courts to mean that workplaces can’t discriminate against employees based on their sex and who they love.
Moreover, he said, the Supreme Court has made it clear that part of Title VII’s purpose was to remove sex as a factor in employment situations. In addition, Matz said that some courts have said the 1964 law stands for not treating employees differently based of sexual orientation, as that would be using a “stereotype” as the basis for a decision.
But a conservative judge on the Seventh Circuit has essentially said that she did not believe the 1964 law, when written, was contemplating gay and transgender situations, and a Second Circuit judge has focused on the law’s purpose being “to end the scourge of gender inequality” rather than it addressing gay and transgender rights, Matz pointed out.
The worry, he said, is that despite textualist arguments saying that the law applies to the LGBT community, the court’s majority of “more conservative judges will just not … go there” and instead will ”gut the entire framework of sex discrimination law.”
“This is one of these cases that has incredibly high stakes,” he said, adding, “we’re just going to have to wait and see.”
The panel, titled “LGBT+ Issues in a Post-Kennedy World,” opened a LGBT-rights forum sponsored by the ABA and being held Tuesday and Wednesday at the Marriott Marquis Hotel in Times Square.
In a later panel discussion on recent federal cases that have pitted claims of religious freedom—or the right to be free from sinning—against protected LGBT rights, NeJaime, the Yale Law professor, pointed out that “religious liberty has historically been championed” by liberals, but now conservative Christian groups are using such arguments against laws protecting gay and transgender rights.
The new line of cases and arguments are “targeted at the people whose rights were recently” protected by various court rulings, he said, referring to cases such as the Masterpiece Cakeshop case decided by the U.S. Supreme Court last year.
“These are not claimants from a minority religion asking for rights,” NeJaime said.
At another point in Tuesday’s discussion, Melissa Sherry of Latham & Watkins outlined the issue of gender equality in the military and the jurisprudence created by President Trump’s announcement, via Tweet, of a ban on transgender people in the military.
She pointed out that a vote by five Supreme Court justices to stay a preliminary injunction on the ban was “a pretty significant preview, I think, if the cases go back before the [Supreme] Court, where they might be headed.”
According to the ABA, the forum, the second such one sponsored by the ABA in the last few years, is being tied to this year’s 50th anniversary of the Stonewall riots, which many credit with sparking the LGBT-rights movement.
After the forum ends Wednesday, a three-day Section of Litigation & Solo, Small Firm and General Practice Division (GPSolo) CLE Conference will begin at the Marriott.