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…