Court and LGBT rights

1996 The Supreme Court rules that making gays strangers to the law is unconstitutional in Romer v. Evans . They overturn Amendment 2 from CO which bans any municipality or the state from enacting sexual orientation protections and also bars the three branches of government from granting relief

2003 Lawrence v Texas establishes a right to privacy for consensual non commercial sex between the same gender

2004 MA Supreme Judicial Court says the mini DOMA the state has is unconstitutional, later that year 11 states put bans in their state constitutions

2008 FL & CA put a DOMA in their constitution and AR passes an adoption ban

2008 CT becomes another state to recognize marriage between gay and lesbian couples in their 4-3 Kerrigan decision

2009 Iowa becomes the first Midwestern state to rule that their statutory DOMA is unconstitutional in a unanimous ruling

2010 Ted Olson and David Boies come together to challenge Prop 8. In a 13 day case starting in January, both sides make their case. In August of that year, Prop 8 is struck down

2010 Governor Scott Walker refuses to defend the law establishing the domestic partnership registry enacted by his predecessor Governor Doyle, the case is brought by a family organization that says that this registry is a step toward recognizing marriage between gay and lesbian couples expressly forbidden in the state Constitution. In 2012 the WI Court of Appeals rules that the registry is not like marriage and therefore is constitutional.

2010 AZ tries to strip benefits from domestic partners, courts rule against the move and finally, 9^th Circuit court rules that one can’t take rights away from an unpopular minority because they’re unpopular. Supreme Court declines to hear the case

2010-2012 NV, IL and HI join the ranks of states that have had their mini DOMA challenged. IL and HI governors refuse to defend the law

2011 In April, AR Supreme Court unanimously overturns the state’s unmarried adoption ban and in May NC passes Amendment 1 which is their DOMA

2011-12 Numerous DOMA cases make their way where they will be eventually heard by the Supreme Court some of them  

I gave a partial list of things I remember because this shows one thing: Though we had setbacks in NV(Dec 2012) and HI (Aug 2012), the court has increasingly become a friend to the LGBT community. When an unjust law is passed, it is unconscionable that it is upheld, and it has been. Before Prop 22 was overturned a CA Court of Appeals upheld it. IN, WI and GA upheld their constitutional challenges. NY didn’t have one, but sued to recognize the rights of gay couples to marry in 2006 and refused to recognize that right (GA and NY did the same thing right around the same time). Along the way we’ve seen hurdles and in the end, the courts came around and recognized the truth albeit many times reluctantly. The path to court has taken many twists and turns and is as interesting as the characters that fill the narrative. The reasons powerful, their arguments crafted to answer any and all questions that may come about and surprises never cease

I want to talk about the court as a setting for LGBT rights. Court has always been looked at as a boring place, blah blah blah, they talk too long, the judges look like they’d rather be somewhere else and people are just quiet. The lawyers are talking about law, which is boring unless you know what they’re talking about and cite rulings that you could care less about because it’s too long, eventually it has 1 or 2 lines that you don’t mind reading and the rest is to test out how powerful your shredder is. However, for people with an interest in how things turn out, it is not boring. Their lives on the line, the effects of the ruling can be joyous or erupt like the Watts riots in ’92. People may say: The court recognized freedom today or they might say that they ran roughshod over the peoples’ voice. One side will say that the court saw that it had no rational basis to discriminate and the other side will be visibly perturbed while answering questions about it and may pursue other means to get around a court ruling.

The courts exist to protect people from a tyrannical majority this is why I am worried when I hear about states with their High Courts elected by the people. The peoples’ opinions change over time and if judges are afraid that the people might vote them out, they may be afraid to reverse unconstitutional laws that hurt particular people for the sake of hurting them. I hear a lot of people preach about “unelected judges” but they never talk about the tyrannical majority as if the majority is always right. The majority acted as its own Legislature, now let’s treat it like a law PASSED by a Legislature. You can say a lot of things in an ad for an initiative that you can’t say in court, and the Prop 8 trial showed this. Even verdicts upholding state constitutional DOMAs have been the same rehashed arguments and sentiments that have been used for years.

Oftentimes we will hear complaints by the Religious Right will say: They can’t win in the court of public opinion, so they have to head to court. When I hear that I smile because this is what happens when a minority can’t trust their rights to the majority. It will continue to play a part regarding minorities, and the independent judiciary is important for that reason. The complaints often come when they are smacked down by a court because they can’t mandate their own moral code on the populace because it’s their own. Let’s take a case from the 5^th Circ, dealing with sex toys as an example: The TX Supreme Court dismissed the case saying that the Constitution doesn’t cover sex toys as a privacy issue. 5^th Circuit strikes it down, and now I wonder: will the Right just give up and say that they will only listen to the State Supreme Court but not the 5^th Circuit because they disagree with the ruling? Let’s note that this case cited Lawrence v. Texas in it.

The courts will continue to have winners and losers as well as dark victories because the rulings have a bearing on real life, people have to walk out and whatever feelings they have will come to the surface