The National LGBTQ+ Bar Association has submitted comments and signed on to many Amici Briefs that have been used in cases concerning LGBTQ+ issues or issues of discrimination. We have provided these briefs and comments for public viewing.
Comments to the Department of Housing and Urban Development’s joint proposed rule “Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs”
Sharonell Fulton v. City of Philadelphia
The City of Philadelphia learned that two of the agencies it hires to provide foster care services to children in the public child welfare system would not license same-sex couples to be foster parents based on the agencies’ religious beliefs. The City informed both agencies that City contracts prohibit such discrimination and stopped referring children to them. One of the agencies sued the City, claiming that the right to free exercise of religion entitles it to a taxpayer-funded contract to perform a government service even though it is unwilling to comply with the City’s requirement that contract agencies accept all qualified families. The amici urges that excluding LGBTQ+ people from foster parenting undermines the goal of placing our most vulnerable children in homes that are in the best interest of the child.
Comments to the Department of Justice and Department of Homeland Security’s joint notice of “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review”
In June, the Trump Administration released a draft rule that would effectively eviscerate the U.S. asylum process. Despite these dramatic changes being proposed, the Administration gave the public a mere thirty days to respond, in the midst of a global pandemic. These regulations erect new barriers at every stage of the asylum process and roll back decades of established legal precedent. Concerned about the impact this proposal would have on vulnerable LGBTQ+ asylum seekers, the National LGBTQ+ Bar (then the “National LGBT Bar Association”) coordinated with several LGBTQ+ immigration organizations and submitted its own comments.
The LGBTQ+ Bar’s 19 pages of comments raise more than a dozen specific objections to the rule and detail how the proposed rule would cut off existing avenues to safety for LGBTQ+ asylum seekers. If this rule were enacted, it would deny protection to tens of thousands of LGBTQ+ asylum seekers who are currently entitled to asylum under our current system.
Gerald Lynn Bostock v. Clayton County, Georgia
Altitude Express, Inc., and Ray Maynard v. Melissa Zarda and William Moore, Jr.
R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission and Aimee Stephens
In these cases, three employers subject to Title VII hope to carve out discrimination against LGBTQ+ employees from the law’s protections. This court should reject the discredited idea that employers may discriminate in employment decisions to appease customer prejudice.
Doe v. Arrisi, et al.
The plaintiff, under New Jersey law, is forced to keep her birth certificate marked as male because she does not wish to have an invasive medical procedure, despite her diagnosis of gender dysphoria under the ADA. The amici urge the court to deny the Defendant’s Motion to Dismiss the Plaintiff’s ADA and Rehabilitation Act claims.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Couple David Mullins and Charlie Craig went to Masterpiece Cakeshop in July of 2012 to order their wedding cake. Cakeshop owner Jack Phillips refused to bake the cake based on his religious beliefs. A Colorado law prevents businesses that provide public accommodations from discriminating based on a range of factors, including sexual orientation. Mullins and Craig filed a compliant with the Colorado Civil Rights Division (CCRD) and the CCRD ruled in their favor. After a CCRD victory in the Colorado Court of Appeals in 2015 , the Supreme Court agreed to hear the case.
G.G., By His Next Friend and Mother, Deidre Grimm v. Gloucester County School Board
Note: This case was originally before the Supreme Court before the decision was vacated and sent back to the 4th Circuit Court of Appeals. G.G. is a student at a public high school. He wishes to use the restroom aligning with his gender identity. The Gloucester County School Board held multiple public meetings to decide whether or not he would be allowed to use the boys’ restroom and ultimately passed a resolution prohibiting any transgender students from using the restrooms aligned with their gender identities. This brief urges the court to rule that, under Title IX, G.G.’s gender identity is protected and that he must be allowed to use the restrooms, locker rooms, and other facilities matching his true gender identity.
Gloucester County School Board v. G.G., By His Next Friend and Mother, Deidre Grimm
G.G. is a student at a public high school. He wishes to use the restroom aligning with his gender identity. The Gloucester County School Board held multiple public meetings to decide whether or not he would be allowed to use the boys’ restroom and ultimately passed a resolution prohibiting any transgender students from using the restrooms aligned with their gender identities. This brief urges the court to rule that, under Title IX, G.G.’s gender identity is protected and that he must be allowed to use the restrooms, locker rooms, and other facilities matching his true gender identity.
Berthiaume v. Smith et al
During jury selection in which Raymond Berthiaume, a gay man, was the plaintiff, two potential jurors were struck by the defense. The court refused to allow the plaintiff to present arguments evidencing that the potential jurors had been struck for their actual or perceived sexual orientation, creating additional road blocks to in the plaintiff’s right to a fair trial. The brief urges the court to hold, as the Ninth Circuit has, that sexual orientation is subject to heightened scrutiny and recognized as part of the Batson Challenge.
Lee v. United States
Mr. Lee, an individual lawfully living in the United States for more than 25 years, pleaded guilty to possession of ecstasy after his attorney incorrectly informed him a guilty please would not result in deportation. The petitioner’s case addresses the harsh penalty faced by some immigrant families as a result of interactions with the US criminal justice system. Currently, minor non-violent offenses may result in the deportation of non-citizens, even if those individuals are lawful permanent residents.
Lee v. Tam
Simon Tam, of the band The Slants, filed suit after the band name was rejected for trademark purposes. The defense argues that this rejection is not a violation of the Free Speech Clause of the First Amendment because potential marks that disparage a group or race of people do not further the provision of goods or services through commercial transaction.
Obergefell et al v. Himes
In 2014, four separate cases challenging same-sex marriage bans were consolidated into one case before the United States Court of Appeals for the Sixth Circuit. The challenge claimed that the various bans on same-sex marriage were unconstitutional.
Latta v. Otter
Four lesbian couples, two of whom were raising children, were represented by the National Center for Lesbian Rights in filing a suit in late 2013 challenging Idaho’s ban on same-sex marriage.
Bourke v. Beshear
Gregory Bourke and Michael DeLeon were legally married in Canada but found that their marriage was not recognized in the state of Kentucky. They filed suit challenging Kentucky’s law on behalf of themselves and DeLeon’s adopted children. They were later joined by three couples married in other states and continued to challenge Kentucky’s refusal to recognize valid marriages from other jurisdictions.
DeBoer v. Snyder
April DeBoer and Jayne Rowse, a lesbian couple in Michigan, had three adopted children between the two of them. Michigan law restricted second-parent adoptions to married couples and, because Michigan did not recognize same-sex marriages, DeBoer and Rowse were not able to adopt each other’s children. After initially challenging the adoption law itself, their petition was eventually amended to reflect the underlying issue of Michigan’s ban on same-sex marriage.
Tanco v. Haslam
In 2013, Tennessee had in place a law which prohibited the recognition of same-sex marriage. Three married couples, all who had married in other states and moved to Tennessee, filed a suit claiming that the law violated both their right to equal protection and to travel between states.
United States v. Windsor
Edith Windsor was married to Thea Spyer in Canada in 2007 and their marriage was recognized in New York where they lived. The two had been together for 44 years when Spyer died in 2009. Due to the Defense of Marriage Act (DOMA), Windsor was unable to claim the estate tax marital deduction that same-sex couples routinely receive. This discriminatory law required Windsor to pay over $350,000 in federal estate taxes. Windsor requested a full refund from the government, but the IRS rejected that claim because of DOMA. The case passed through district court and the court of appeals in New York before being slated to come before the Supreme Court in March 2013.
Hollingsworth v. Perry
California’s Proposition 8 case considers the constitutionality of an amendment defining marriage as solely between a man and a woman. The case was first filed in May 2009 and asked for a preliminary order blocking Proposition 8. In August 2010, Judge Vaughn Walker struck down Proposition 8 on the grounds that it violated due process and equal protection clauses of the California Constitution. After a lengthy appeals process, in February 2012, the Ninth Circuit court upheld Judge Walker’s ruling declaring Proposition 8 unconstitutional. The United States Supreme Court will hear the case in March 2013.
Golinski v. Office of Personnel Management
In 2008, Karen Golinski tried to enroll her spouse, Amy Conninghis in her employer-provided insurance plan. When she was denied, she filed a complaint under the Ninth Circuit’s Employment Dispute Resolution Plan that the denial of coverage for her spouse constituted prohibited discrimination. In January 2009, Chief Judge Alex Kozinski ruled that the denial did violate the Ninth Circuit’s employment policies because heterosexual court employees were able to receive benefits for their spouses. The Office of Personnel Management then claimed that the Defense of Marriage Act (DOMA) prevented coverage for the spouses of lesbian and gay federal employees. Golinski is now suing the federal government for equal benefits for her wife.
Gill v. Office of Personnel Management
In 2009, the Gay and Lesbian Advocates and Defenders (GLAD) filed the lawsuit in the District Court of Massachusetts. The plantiffs, Nancy Gill and Marcelle Letourneau, challenged the constitutionality of section 3 of the Defense of Marriage Act (DOMA), which defines the term marriage as “a legal union between one man and one woman as husband and wife.” In July 2010, District Judge Joseph Louis Tauro ruled that section 3 of DOMA was unconstitutional. Later, Judge Tauro stayed the implementation of his verdict in order to allow an appeal from the Department of Justice (DOJ). In January 2011, the DOJ filed a brief in the First Circuit Court defending DOMA, but on February 25, the DOJ decided it would “cease to defend” the case. This challenge marks the first time that a case filed against DOMA has reached a federal appellate court.
Christian Legal Society v. Martinez (U.S. Supreme Court)
In 2010, the National LGBTQ+ Bar Association (then the “National LGBT Bar Association”) and its Law Student Division teamed up with 55 LGBTQ+ law student groups at our nation’s top law schools to file an amicus brief in Christian Legal Society v. Martinez. In 2004, the Christian Legal Society’s chapter at the University of California-Hastings filed a lawsuit after the school denied a funding request because of the group’s anti-LGBTQ+ discrimination policy. The question before the Court was whether the “Constitution allows a state law school to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.” The U.S. Supreme Court, in a 5-4 decision, affirmed the University of California-Hastings’ decision to deny funding to student groups that discriminate against its LGBTQ+ students.
In re Marriage Cases (California Supreme Court)
In 2007, the National LGBTQ+ Bar Association (then the “National Lesbian and Gay Law Association”) submitted an amicus brief supporting the freedom to marry for same-sex couples and played a critical role in arguing that lesbian and gay couples should receive equal treatment under the law.
Lawrence v. Texas (U.S. Supreme Court)
In 2003, the National LGBTQ+ Bar Association (then the “National Lesbian and Gay Law Association”) submitted an amicus brief supporting the plaintiff’s right to sexual privacy in the case which struck down the Texas sodomy law, holding that intimate consensual conduct was part of the liberty protected by due process under the Fourteenth Amendment.
Rumsfeld v. FAIR (Third Circuit Court of Appeals & U.S. Supreme Court)
In 2004, the National LGBTQ+ Bar Association (then the “National Lesbian and Gay Law Association”) submitted amicus briefs challenging the constitutionality of the Solomon Amendment, which permits the military to recruit on college campuses despite the conflict between the “Don’t Ask, Don’t Tell” statute and the non-discrimination policies of many colleges that prohibit discrimination based on sexual orientation.
In re Guardianship of Kowalski (Minnesota Court of Appeals)
In 1991, the National LGBTQ+ Bar Association (then the “National Lesbian and Gay Law Association”) submitted an amicus brief in support of the successful appointment of Karen Thompson as guardian for her lesbian partner, Sharon Kowalski, after she became incapacitated in a car accident. This case garnered national and international attention because Kowalski’s family contested the appointment of Ms. Thompson.
Partner with the National LGBTQ+ Bar Association
The National LGBTQ+ Bar Association is proud to offer our advocacy services as amicus curiae and our support for organizations in cases or initiatives that align with the LGBTQ+ Bar’s vision and mission.
The Association does so by partnering with like-minded, progressive organizations to take positions on issues such as LGBTQ+ equality, the right of all LGBTQ+ people to live free from discrimination and continuing commitment to diversity in the legal profession. The Public Policy Committee of the National LGBTQ+ Bar Association advocates on behalf of justice for the LGBTQ+ community in all of its diversity through, among other things, written legal advocacy.
The LGBTQ+ Bar seeks opportunities to work with other organizations in the future by drafting or signing on to amicus briefs and assisting with initiatives on civil rights issues important to our members. If you are currently working on a case or issue which you would like the National LGBTQ+ Bar Association to support, or if you would like further information, please contact our Executive Director, D’Arcy Kemnitz. Additionally, please keep the National LGBTQ+ Bar Association’s Public Policy Committee in mind when you are developing initiatives in the future.