U.S. Supreme Court
Obergefell lawyer discusses post-Roe fate of marriage equality
Dan Canon represented Ky. plaintiffs in landmark case
![](https://www.washingtonblade.com/content/files/2022/07/20150428_plaintiffs_3_c_Washington_Blade_by_Michael_Key.jpg)
Faced with the likely possibility that the U.S. Supreme Court is poised to take away the constitutional right to marry for same-sex couplesā, Congressional Democrats this week reintroduced legislation designed to forestall potential fallout of a reversal of the courtās landmark 2015 Obergefell v. Hodges ruling.
The Respect for Marriage Act sailed through the U.S. House of Representatives on Tuesday with support from a quarter of the Republican caucus totaling 47 members. A companion bill in the U.S. Senate introduced by U.S. Sens. Tammy Baldwin (D-Wis.) and Dianne Feinstein (D-Calif.), with co-sponsors U.S. Sens. Rob Portman (R-Ohio) and Susan Collins (R-Maine), now stands a realistic chance of securing the endorsement of 10 Senate Republicans, which is necessary to reach the 60-vote bipartisan threshold majority to break a filibuster.
The prospect of a floor vote on the bill inched closer, possibly as early as next week with U.S. Sen. Ron Johnsonās (R-Wis.) commitment on Thursday to not oppose the bill. Another sign of tepid support among the Senate Republicans this week came from U.S. Sen. Thom Tillis (R-N.C.), who said he āprobably wouldā vote for the legislation, while U.S. Sen. Lisa Murkowski (R-Alaska)ās endorsement was more enthusiastic.
āNot only would I like to see Roe, Casey, and Griswold on contraception codified,ā said the Alaska senator, ābut I’ve also made clear my support … for gay marriage years ago.ā
Last month, when the High Court overturned Roe v. Wade, Justice Clarence Thomas wrote in his concurring opinion that he saw a valid interest in revisiting other rulings where the court had established legal precedent with other constitutional privacy rights issues to include Obergefell.
Scrambling to protect reproductive rights after the Dobbs v. Jackson ruling, Congressional Democrats introduced an ambitious bill to codify the right to abortion nationwide, which earned only seven votes from House GOP members and was doomed to fail in the Senate (despite Murkowskiās stance on the matter.)Ā
With the Respect for Marriage Act, Democrats have opted for a more modest approach to mitigate some of the consequences resulting from a decision overturning marriage equality, betting that its limited scope would win over enough Senate Republicans to pass it. Ahead of the 2022 midterm elections, Democrats also hope to demonstrate their commitment to protecting marriage equality support which reached 71 percent of Americans according to a Gallup poll in June.
In an emailed statement to the Los Angeles Blade, U.S. Rep. Barbara Lee (D-Calif.) discussed how Congressional Democrats are gearing up to battle the Supreme Courtās looming threat of taking away rights from same-sex couples:
āAs weāve seen with the Dobbs decision, this far-right, Republican-appointed court has demonstrated clearly they wonāt hesitate to undermine the will of the people and revoke long-established constitutional protections. If they overturned 50 years of the right to an abortion with Roe, theyāll overturn a decade of marriage equality with Obergefell. Make no mistake: Democrats are the party fighting for fundamental rights and bodily autonomy, and we proved that this week with passage of the Respect for Marriage Act.ā
By effectively neutralizing the Clinton-era Defense of Marriage Act, the legislation would recognize same-sex marriage at the federal level, adding additional protections to safeguard against the possibility that the constitutional right to marriage equality would be revoked by a court ruling.
Should the Supreme Court issue a ruling allowing states to ban same-sex marriage, civil rights lawyer Dan Canon, who represented the Kentucky plaintiffs in the Obergefell case, told the Blade the Respect for Marriage Act would require states to recognize marriages of gay and lesbian couples performed in places where they are legal. At least, that is, in states where officials would follow the federal law.
āUnless and until the federal courts say it’s a violation of a government actor’s free exercise rights to have to recognize a marriage ā which is a radical, batshit-crazy legal position, but still a possible outcome ā marriages in places with halfway sane judges and/or executive branch officials should be fine,ā Canon said.
āThe RFMA (Respect for Marriage Act) gives the attorney general and private citizens a civil enforcement mechanism,ā Canon said, but state government employees may nevertheless refuse to recognize the legal marriages of same-sex couples, and conservative courts could decide their religious objections and free exercise rights supersede laws like the Respect for Marriage Act.
Additionally, Canon said despite the absence of any solid legal argument against it, one can imagine a case directly challenging the Respect for Marriage Act might be blessed by conservative federal district and circuit court judges, ultimately reaching the High Court whose conservative majority might rule, for example, that āthis application of RFMA violates the free exercise rights of the clerkā or whomever is challenging the law.
Such an outcome would spell āutter chaos,ā Canon said, throwing into question not just whether a state ā but also whether a county or town ā will recognize same-sex marriages. Alternatively, a governor, without objection from conservative federal courts, could issue an executive order barring officials from recognizing legal same-sex marriages, and the Supreme Court could decline to weigh in on the matter, Canon said.
A case challenging same-sex marriage could chart a similar path
Seven years ago, a Kentucky county clerk named Kim Davis denied marriage licenses to same-sex couples in violation of a federal court order pursuant to the Supreme Courtās ruling in Obergefell. When she was sued, Canon represented parties in the highly publicized litigation, which the Supreme Court declined to hear on appeal.
Thomas and Justice Samuel Alito objected to the courtās refusal to consider Davisās case, issuing statements in which they called her a āvictim.ā Canon said challenges to Obergefell are likely to turn on the same legal question at issue then: whether the free exercise of religion trumps marriage equality.
And itās not just the Supreme Court, with its 6-3 conservative supermajority, that would be more receptive to such arguments than it might have been in 2015, Canon said.
āWhen we litigated that [Kim Davis] case, we were pretty sure that no court in America would say that Davis’s right to impose her religion on her constituents was somehow superior to anyone’s right to a marriage license,ā he said. āNow? I’m not so sure.ā
GOP lawmakers and the conservative legal movement have moved so far to the right in recent years Canon said that he expects Congressional Republicans, should they secure a majority in both chambers, will try to ban marriage equality in all 50 states, while the Supreme Court may well take a case challenging Obergefell regardless of how shaky its footing.
āIt is hard to imagine an āinjuryā sufficient to confer standing in a way that would present a halfway decent case for the Court to revisit Obergefell based on an interpretation of the 14th Amendment,ā Canon said. Still, the conservative majority justices are āadvancing an ideological agendaā and ānone of this has to make sense according to the playbook weāre used to.ā
A successful case would most likely begin with āa Christian nationalist attorney general or governor saying, āwe won’t recognize marriage equality,āā and the Supreme Court might rule their refusal is lawful per the First Amendment, Canon said.
U.S. Supreme Court
Concern over marriage equality in US grows two decades after first Mass. same-sex weddings
Gay and lesbian couples began to marry in Bay State in 2004
![](https://www.washingtonblade.com/content/files/2022/10/rainbow_flag_wedding_rings_insert_by_Bigstock.jpg)
Two decades after Massachusetts became the first state to legalize same-sex marriage, a new study reveals both significant progress and ongoing challenges for married LGBTQ couples in the U.S., with a growing sense of insecurity about the future of their rights.
The Williams Institute at UCLA School of Law surveyed 484 married same-sex couples from all 50 states and D.C. The study, released Monday, marks the 20th anniversary of legal same-sex marriage in the U.S.
Researchers found that 93 percent of respondents cited love as a primary reason for marrying, with 75 percent also mentioning legal protections. Over 83 percent reported positive changes in their sense of security, and 74.6 percent noted improved life satisfaction since marrying.
However, the study also highlighted persistent discrimination and growing concerns about the future. About 11 percent of couples who had a wedding reported facing prejudice during the planning process.
Alarmingly, nearly 80 percent of respondents expressed concern about the potential overturning of the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide. This anxiety has been exacerbated by initiatives like Project 2025, a conservative policy blueprint that some fear could roll back LGBTQ rights if implemented.
The possibility of a former President Donald Trump victory in the upcoming election has further intensified these concerns. Many respondents cited Trump’s previous U.S. Supreme Court appointments and his statements on LGBTQ issues as reasons for their apprehension. One participant stated, “The thought of another Trump presidency keeps me up at night. We’ve come so far, but it feels like our rights could be stripped away at any moment.”
The current political climate has 29 percent of respondents considering moving to another state, with 52.9 percent citing socio-political concerns as a primary reason. This reflects a growing sense of insecurity among LGBTQ couples about their rights and freedoms.
Brad Sears, founding executive director of the Williams Institute, noted, “The data clearly show that marriage equality has had a profound positive impact on same-sex couples and their families. However, it also reveals ongoing challenges and serious concerns about the future of these rights in light of current political trends and the upcoming election.”
Christy Mallory, legal director at the Williams Institute and lead author of the study, added, “This research provides crucial insights into the lived experiences of same-sex couples two decades after marriage equality began in the U.S. The high level of concern about potential loss of rights underscores the continued importance of legal protections and public support for LGBTQ+ equality.”
The study found that 30 percent of surveyed couples have children, with 58.1 percent of those parents reporting that marriage provided more stability for their families. However, many of these families now worry about the security of their legal status in the face of potential policy changes and shifting political landscapes.
As the nation reflects on two decades of marriage equality, the study underscores both the transformative power of legal recognition and the ongoing need for vigilance in protecting LGBTQ+ rights. The findings highlight the complex reality faced by same-sex couples in America today: Celebrating hard-won progress while grappling with uncertainty about the future, particularly in light of upcoming political events and potential shifts in leadership.
U.S. Supreme Court
Supreme Court to consider challenge to Tenn. law challenging gender-affirming case for minors
Volunteer State lawmakers approved ban in 2023
![](https://www.washingtonblade.com/content/files/2022/12/United_States_Supreme_Court_building_insert_c_Washington_Blade_by_Michael_Key.jpg)
The U.S. Supreme Court on Monday agreed to consider a challenge to a Tennessee law that bans health care providers from offering gender-affirming care to transgender minors.
Tennessee lawmakers approved the law in 2023.
A federal judge in Nashville issued a temporary injunction against portions of the statute before it was to have taken effect on July 1, 2023. The 6th U.S. U.S. Circuit Court of Appeals last September rejected a request to block the law the Justice Department has also challenged.
āThe future of countless transgender youth in this and future generations rests on this court adhering to the facts, the Constitution, and its own modern precedent,ā said Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union’s LGBTQ and HIV Project, on Monday in a press release. “These bans represent a dangerous and discriminatory affront to the well-being of transgender youth across the country and their constitutional right to equal protection under the law. They are the result of an openly political effort to wage war on a marginalized group and our most fundamental freedoms.”Ā
“We want transgender people and their families across the country to know we will spare nothing in our defense of you, your loved ones, and your right to decide whether to get this medical care,ā added Strangio.
The Associated Press reported Tennessee is among the more than two dozen states that have enacted laws that either restrict or ban gender-affirming care for trans minors.
The ACLU notes the Supreme Court “is not expected to hear arguments” in the case until the fall.
U.S. Supreme Court
Supreme Court rules to preserve access to abortion medication
Case is Alliance for Hippocratic Medicine v. FDA
![](https://www.washingtonblade.com/content/files/2024/06/ABORTION-PILL.jpg)
The U.S. Supreme Court ruled Thursday in a much-anticipated decision against efforts by conservative doctors and medical groups challenging access to mifepristone, one of two pharmaceuticals used in medication abortions. As a result of the high court’s decision, access to the drug wonāt change.
Associate Supreme Court Justice Brett Kavanaugh, writing for the court, reversed a lower court decision that would have made it more difficult to obtain the drug, which is used in about two-thirds of U.S. abortions. The ruling however was narrow in scope as it only addressed what is known as legal standing in a case.
SCOTUSblog senior court reporter Amy Howe noted that Kavanaugh acknowledged what he characterized as the challengersā āsincere legal, moral, ideological, and policy objectionsā to elective abortion āby othersā and to FDAās 2016 and 2021 changes to the conditions on the use of the drug.
But the challengers had not shown that they would be harmed by the FDAās mifepristone policies, he explained, and under the Constitution, merely objecting to abortion and the FDAās policies are not enough to bring a case in federal court. The proper place to voice those objections, he suggested, is in the political or regulatory arena.
āUnder Article III of the Constitution, a plaintiffās desire to make a drug less available for others does not establish standing to sue,ā Kavanaugh wrote.
āWe are pleased with the Supreme Courtās decision in this incredibly important case. By rejecting the Fifth Circuitās radical, unprecedented and unsupportable interpretation of who has standing to sue, the justices reaffirmed longstanding basic principles of administrative law,ā said Abigail Long, a spokesperson for Danco. āThe decision also safeguards access to a drug that has decades of safe and effective use.ā
The White House released a statement from President Joe Biden on Supreme Court Decision on FDA v. Alliance for Hippocratic Medicine:
“Todayās decision does not change the fact that the fight for reproductive freedom continues. It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom. It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.
It does mean that mifepristone, or medication abortion, remains available and approved. Women can continue to access this medication – approved by the FDA as safe and effective more than 20 years ago.
But letās be clear: attacks on medication abortion are part of Republican elected officialsā extreme and dangerous agenda to ban abortion nationwide. Since the overturning of Roe v. Wade, Republican elected officials have imposed extreme abortion bans in 21 states, some of which include zero exceptions for rape or incest. Women are being turned away from emergency rooms, or forced to go to court to plead for care that their doctor recommended or to travel hundreds of miles for care. Doctors and nurses are being threatened with jail time, including life in prison, for providing the health care they have been trained to provide. And contraception and IVF are under attack.
The stakes could not be higher for women across America. Vice President Harris and I stand with the vast majority of Americans who support a womanās right to make deeply personal health care decisions. We will continue to fight to ensure that women in every state get the health care they need and we will continue to call on Congress to restore the protections of Roe v. Wade in federal law ā that is our commitment.”
U.S. District Court for the Northern District of Texas Judge Matthew Kacsmaryk in Amarillo, Texas, in a ruling a year ago, waved aside decades of scientific approval, ruled that the U.S. Food and Drug Administration improperly approved mifepristone more than 20 years ago in 2000.
Kacsmaryk, appointed to the federal bench by former President Donald Trump, in his 67 page opinion wrote that the FDAās two-decade-old approval violated a federal rule that allows for accelerated approval for certain drugs and, along with subsequent actions by the agency, was unlawful.
The suit, Alliance for Hippocratic Medicine v. FDA, was originally filed in the U.S. District Court for the North District of Texas in mid-November by Alliance Defending Freedom, an anti-abortion, anti-LGBTQ+ legal organization.
Applauding Kacsmarykās ruling, Erik Baptist, speaking for the Alliance Defending Freedom said in a statement: āBy illegally approving dangerous chemical abortion drugs, the FDA put women and girls in harmās way, and itās high time the agency is held accountable for its reckless actions.ā
Erin Hawley, a senior attorney for the conservative group Alliance Defending Freedom who argued the case at the Supreme Court, said the opinion was ādisappointing,ā but told reporters in a press gaggle after the ruling that the explicit mention of conscience protections was a victory.
āThe Supreme Court was crystal clear that pro life doctors do have federal conscience protections, even in emergency situations,ā Hawley said. āSo thatās a huge win for the pro-life cause. The Supreme Court clearly said that our doctors are entitled to those federal conscious protections that are based on their religious beliefs.ā
The case now returns to the lower courts, and the dispute over access to the drug likely is not over.Ā
SCOTUSblog also reported that Nancy Northrup, the president and CEO of the Center for Reproductive Rights, praised the decision but conceded that the dispute could continue even after Thursdayās ruling. She, too, noted that the three states ācould still attempt to keep the case going, including taking it back up to the Supreme Court,ā and she warned that access to mifepristone āis still at risk nationwide.ā
The Hill notes that for instance, the same district court in Texas that originally ruled against the FDA said a group of three red statesāMissouri, Idaho and Kansasā can intervene in the lawsuit.
āI would expect the litigation to continue with those states raising different standing arguments than made by our doctors,ā ADF’s Hawley told reporters.
Equality California, the nationās largest statewide LGBTQ+ civil rights organization, emailed the Blade the following statement from Executive Director Tony Hoang in response to a unanimous ruling by the United States Supreme Court:
āWe appreciate today’s unanimous decision to uphold access to the abortion drug mifepristone, authored by a conservative Justice. This ruling reinforces the critical importance of maintaining accessible reproductive healthcare and highlights the necessity of safeguarding these rights from baseless legal attacks.
However, it is imperative to recognize that the Court should never have accepted this case. The so-called Alliance for Hippocratic Medicine lacked the standing to initiate this challenge. Moreover, federal conscience exemptions already exist for healthcare providers who object to offering abortion-related care.
Medication abortions involving mifepristone constitute the majority of abortions in America, including those sought by LGBTQ+ people. Our community understands the necessity of bodily autonomy and the right to make decisions regarding our own medical care, including reproductive care. Patients deserve access to the medications they need, and providers should be able to deliver that care without unwarranted interference from extremist courts or politicians.
Attacks on abortion do not end with this decision; millions of people nationwide are still unable to get abortion care and abortion opponents remain focused on their end goal of a nationwide abortion ban.
Equality California will continue to work with our legislative partners in Sacramento and Washington, D.C., as well as organizational allies, like Planned Parenthood, to help protect and expand access to abortion and reproductive healthcare.ā
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