Capitol Beat Opinion

After The Agony And The Ecstasy: The New Legal Battlegrounds

Ecstatic 2
Linda Pentz
Written by Linda Pentz

“Not just gay…ecstatic.”  The young woman holding her witty sign was just one person among many outside the Supreme Court on June 26, 2015, celebrating the Court’s historic decision to legalize same-sex marriage nationwide.  But her joy was soon to be tempered by a dose of reality.   As almost everyone knew, after the agony and the ecstasy, there would still be miles to go before we sleep.

And the agony returned quickly.  The continued — and record numbers of — murders among the transgender community, mainly women of color; the adoption denials faced by same-sex couples; discrimination in the workplace, housing and elsewhere; the absurd Kim Davis theatrics.  The list could — and does — go on.  There are more legal battles to fight.

The lawyers who fight them, however, are optimistic.  After all, what began as a seemingly quite inane and clerical request — to have one’s name on a partner’s death certificate — culminated in that momentous day when Obergefell vs. Hodges prevailed.

Two lawyers who certainly know the territory well, explored the upcoming legal landscape recently at a presentation by Lambda Legal and hosted by PNC bank, ranked as “one of the best places to work” by the Human Rights Campaign.

The Supreme Court decision may have seemed inevitable to many, but Hayley Gorenberg, Deputy Legal Director for Lambda Legal, reminded us that the many lesser-known victories that paved the way were no cake walk.  “We had an avalanche of wins leading to Obergefell, so you could think it was easy,” she said.  “But we had to fight tooth and nail.”

That willingness to fight continues to yield rewards.  Gorenberg described a recent successful effort to recognize same sex parents in Texas.  Around 22,000 birth certificates in that state are currently being revised to legally name and recognize both parents on that important document.

On the flip side, Texas was also the state where one of the more deflating defeats occurred — when the Houston Equal Rights Ordinance was annihilated in what Gorenberg described as “a terrible blow that echoes around the country.”  Adding to the many theories surrounding HERO’s loss, Gorenberg observed that “short timeframe initiatives are harder to fight.”  In effect, the toilet terror brigade got out of the gate fast and there was insufficient time to turn the campaign around.

Currently on the docket for Lambda Legal is the case of Dana Zzyym, an intersex client who sued the State Department after being asked to choose either a male or female category on a passport application, a decision Zzyym said would be dishonest as someone who is neither.  Intersex rights, said Gorenberg, is a new campaign area that many are unfamiliar with, even though it’s a condition she says occurs in one in every 2,000 births, a surprisingly high number.

Despite efforts like these, “the storm clouds are clearly gathering,” Gorenberg said.  And where they are gathering is undeniably, and defiantly, in the firmament of the religious right.

This was a view shared by Gorenberg’s co-presenter, Paul Smith, one of the most respected LGBT rights lawyers in the country.  He is most noted for successfully arguing Lawrence v. Texas, in which the Supreme Court struck down sodomy laws in Texas and 13 other states.

Even before the Supreme Court decision on marriage equality, Smith accurately predicted that religion would be used to justify continued discrimination against the LGBT community, a concern he reiterated at the Lambda Legal presentation.

“The next big fight is against the aggressive use of religion as an excuse to avoid anti-discrimination laws,” Smith said.  State religious exemption laws permit people, churches, non-profit organizations, and sometimes corporations to seek exemptions from state laws that they allege burden their religious beliefs.

The ACLU agrees and predicts there will be on-going attacks aimed at undermining or circumventing marriage equality laws using religious exemptions.  In a press briefing several weeks ago, the ACLU’s LGBT Project Director, James Esseks,  said that while “religious freedom is central to American identity and the Constitution, that doesn’t give anyone the right to harm other people.  That’s discrimination.”

Esseks said most people support this view, pointing to a September 2015Washington Post poll that saw 74 percent of Americans agreeing that when conflict arises, the need to treat everyone equally is more important than religious exemption.

But at the state level the war is on and building.  Newly-elected Kentucky governor, Matt Bevin, issued an executive order two weeks after taking office that removes the names of all county clerks from marriage licenses issued in his state.

In New Mexico, Republican lawmakers David Gallegos and Nora Espinoza have pre-filed a bill that would give state business owners the right to refuse business to gay, lesbian and transgender people and their families on the basis of religious freedom.

Meanwhile, eight U.S. senators have requested in writing that the U.S. Department of Education make public the names of colleges and universities asking for Title IX waivers that allow them to discriminate against LGBT students.  The eight include independent, Bernie Sanders, who is running for president as a Democrat.  The remaining seven are also Democrats.

“We are concerned these waivers allow for discrimination under the guise of religious beliefs,” the Senators wrote.

Discrimination continues.  It must now be fought, Smith and Gorenberg said, on a number of key frontiers: Trans rights; HIV decriminalization; immigration; equality in schools; ending conversion therapy; and many other issues.  And despite the Supreme Court win, there can be no resting on legal laurels.

“What happened at SCOTUS this summer did not happen out of nowhere,” Gorenberg said.  “And it was not a foregone conclusion.”

As new cases move into the front lines, they will not be won in courtrooms alone.  Anti-LGBT discrimination “will be solved,” Smith said, “when our culture is transformed and families don’t reject their own members.”

Shining the legal spotlight on these cases helps to educate and enlighten.  But in the end, both agreed, the legal victories also need to lead to a fundamental societal shift.  Elevating acceptance and eradicating pseudo-religious bigotry: now those are New Year’s resolutions that could give us all another reason to be ecstatic.