Yesterday, on the anniversary of former Supreme Court Justice Antonin Scalia’s death, the Federalist Society released an excerpt from a documentary about his life and legacy. The eight-minute video includes quotes from his children and the other Supreme Court Justices, and some clips of him in action. “On the anniversary of his passing, some of the people who knew him best recount the life and legacy of the ‘inimitable’ Antonin Scalia–father, husband, jurist,” says a statement on the conservative organization’s website.

“He was a principled man.” – Chief Justice Roberts
“I miss him every day. He was inimitable.” – Justice Ginsburg https://t.co/ya7rFSbXfL

— Federalist Society (@FedSoc) February 14, 2017

Scalia’s seat on the Supreme Court has been empty ever since he passed away, as Republicans refused to vote, or even consider, former President Obama’s nominee to replace him, Merrick Garland. Now that President Trump has nominated Neil Gorsuch, who is a conservative judge very similar to Scalia in many ways, a lot of Democrats have criticized what they call the GOP’s double standard. Outspoken civil rights activist Reverend Al Sharpton said over the weekend:

Now they want to talk about, since Trump has nominated Gorsuch, how qualified he is. Well, he ain’t no more qualified than Garland was. The danger of this proceeding is, are you now saying that you will select Supreme Court judges based on if the party on the White House corresponds with the party that is the majority of the Senate, then you have in effect changed the constitutional requirements to select a Supreme Court judge.

It’s unclear if or when the Federalist Society will release a full-length documentary about the former justice. But the video clip ends with the words “coming soon.” In the meantime, Neil Gorsuch is on the long road of questionnaires, procedures, and hearings that make up the confirmation process, to finally replace the vacancy left by Scalia.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

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The U.S. Court of Appeals for the 10th Circuit recently ruled that states cannot deprive a person of the fundamental right to marry simply because he or she chooses a partner of the same sex. This marked the first time that a federal appeals court has weighed in on the matter, and the early thinking is that the Supreme Court may take this case. Finally, marriage equality in all 50 states, right?

This is all good, yeah, woohoo! (Sidenote: my gaydar sucks big time. Straight guys are gay, gay guys are straight. Hell, lesbians are twinks and vice versa, but I thought I had developed a fail-safe. To determine if a guy is family, I simply look down at his ring finger. Last week, I caught myself doing this. I looked down at this dude’s finger, which indeed was adorned with a ring. Done — he’s straight. Then I remembered the whole marriage equality thing: he’s gay! But, as he opened his clearly European mouth and uttered something about the weather, his Belfast burr turning “air” to “ire,” I remembered the Euro-metrosexual-monkey-wrench! Gay or straight, damnit?! Alas, I resigned myself to utter cluelessness.)

Courtesy of Quick Meme

In all seriousness, it’s really awesome that the lines between gay relationships and straight relationships are increasingly blurry. That’s not the endgame, though. Even if the Supreme Court takes this Utah case and sides with the 10th Circuit about the fundamental right to marry (big assumptions with the Roberts Court), it won’t affect other types of discrimination against the LGBTQ community. Marriage equality is only the opening salvo in a still-uphill battle for full equality. We ought not lose sight of that.

Don’t get me wrong, ever the Machiavelli in me says sure, get to marriage equality by any means necessary. Those means, under the reasoning of the 10th Circuit, would be the Fourteenth Amendment’s Due Process Clause. That is, if the Supreme Court rules favorably in this case, and on due process grounds, it would mean that no person, gay or straight, can be deprived of the right to marry. But due process deals only with “fundamental rights.” What about laws that discriminate against gay men in blood donation? What about workplace discrimination?

Courtesy of Matt Buck via Flickr

A decision on due process grounds would not touch these other types of discrimination, but a ruling under the Fourteenth Amendment’s Equal Protection Clause would. That would deal with all manner of discrimination against the LGBTQ community, including marriage equality.

Brief Equal Protection primer: Under the Fourteenth Amendment’s Equal Protection Clause, laws that single out a specific group for differential treatment or disproportionately impact that group, if challenged, are subject to judicial review. If the law discriminates on the basis of a suspect classification, such as race, it must satisfy the most exacting degree of review — strict scrutiny. Thanks to second-wave feminism, discrimination on the basis of sex/gender is subject to intermediate scrutiny. As it stands now, discrimination on the basis of sexual orientation is subject to the lowest, most deferential level of judicial review — rational basis review.

Blah, blah, blah, I’m losing you so let me get to the point. Until the Supreme Court rules on equal protection grounds rather than due process that sexual orientation-based discrimination merits a higher level of judicial scrutiny, discriminatory laws will continue to receive minimal judicial scrutiny.

I’m glad that marriage equality is sweeping across the country, and that the Supreme Court may finally have occasion to legalize it nationwide. Indeed, by no means would this be a pyrrhic victory. However, it would only nominally affect other issues of discrimination against the LGBTQ community, issues that are arguably more important than marriage equality.

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Chris Copeland (@ChrisRCopeland) is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street.

Featured image courtesy of [Victoria Pickering via Flickr]

Chris Copeland

Chris Copeland is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street. Contact Chris at staff@LawStreetMedia.com.

The post Due Process is the Red Herring in the LGBTQ Movement appeared first on Law Street.

Jury duty is dreaded by many who feel as if they would prefer to be anywhere else besides performing their civic duty within the court. While many of us take this right for granted thinking of it more as a chore than an opportunity, we should stop to consider the alternative. How would you feel if you were denied the opportunity to participate in national governing, a right that is meant to be granted to all American citizens? Over the course of our nation’s history, several groups of citizens have been discriminated against with regard to jury service. In many cases, the Supreme Court has moved to fix these inequalities within our governmental system. For example, the 1896 Batson v. Kentucky case eliminated racial discrimination in jury selection and ratification of the 19th amendment eliminated discrimination of gender, giving opportunities to women to sit on a jury. In some ways, the courts have improved in their previously discriminatory practices. However, the discrimination of juror candidates based on sexual orientation has not been addressed until recently.

On Tuesday, January 22, 2014, the 9th Circuit United States Court of Appeals, based in San Francisco, became the first appellate court to specifically rule that a potential juror cannot be removed during jury selection because of sexual orientation. This decision will extend the 1896 ruling of Batson v. Kentucky, mentioned above, not only in prohibiting the discrimination of jurors based on race, but sexual orientation as well. The three-judge panel was unanimous in their decision, saying that not choosing a juror because he or she is gay is a form of unlawful discrimination.

The basis for this new decision stems from the 9th Circuit case, Smithkline Beecham Corporation v. Abbott Laboratories, an antitrust trial over the price of a popular HIV drug. This case arose from a lawsuit filed in 2007, when Abbott increased the price of the drug Norvir, used by Smithkline in their creation of AIDS drugs. During the screening of potential jurors for the case, an Abbott lawyer utilized one of his preemptory challenges to remove a possible juror who had referred to his male partner multiple times during voir dire. Pointing fingers throughout the case, Smithkline accused Abbott of removing the possible juror due to the negative publicity that accompanied the increased pricing of the AIDS drug throughout the gay community. Abbott denied this accusation, stating the reason for the removal of the juror was due to the death of his friend from AIDS.

When questioned directly, the lawyer said that he was unaware that the juror, referred to as Juror B, was gay. However, Judge Stephen Reinhardt of the 9th Circuit panel said that this claim by the Abbott lawyer was “inconsistent with the record.” The lawyer asked Juror B five questions in total throughout the prescreening process. Judge Reinhardt felt that when questioning Juror B, the lawyer “failed to question him meaningfully about his impartiality or potential biases.” Instead, the Abbott lawyer simply assumed that this potential juror would impartially evaluate the case due to his sexual orientation. In reality it was not correctly discerned whether the Juror would have actually been biased or not. Judge Reinhardt was deeply upset by the presumed discrimination of a juror based on sexual orientation, saying, “gays and lesbians have been systematically excluded from the most important institutions of self governance.”

Eventually, the jurors who were seated at the Smithkline Beecham Corporation v. Abbott Laboratories case ruled in favor of Abbott. However, due to the removal of one potential juror because of his sexual orientation, the 2011 verdict was overturned and the 9th Circuit ordered a new trial, showing that this one simple removal of a juror contains many civic ramifications. Homosexuals will now have more protection within the courts, and hopefully this sphere of equality will decrease discrimination within the legal system and professional world as well.

It is our individual right to be granted a jury of our peers and many of our peers are, in fact, gay, lesbian or of different sexual orientations. It is about time that this basic civil right be extended to include not only those of different races and genders but differing sexual orientations as well.

[abajournal] [washingtonpost] [blogs.findlaw]

Featured Image Courtesy of [Jarek Tuszynski via Wikipedia]

Taylor Garre

Taylor Garre is a student at Fordham University and formerly an intern at Law Street Media. Contact Taylor at staff@LawStreetMedia.com.

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Hazleton, Pa. has lost another round in federal court as they try to enforce ordinances that crack down on illegal immigrants.

The U.S. Court of Appeals has reaffirmed that the town’s law is unconstitutional because it preempts the federal government’s jurisdiction over immigration. The law, initially blocked in 2007 by a district court, would punish landlords for renting to illegal immigrants and penalize the employers who hire them.

The case reached the U.S. Supreme Court after the Third Circuit in Philadelphia, but was originally ruled against in 2010. In 2011, the Supreme Court ordered the Third Circuit to review Hazleton’s ordinances again after the Supreme Court upheld a similar – but narrower – law in Arizona.

[Philly.com]

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Featured image courtesy of [Icars via Flickr]

Davis Truslow

Davis Truslow is a founding member of Law Street Media and a graduate of The George Washington University. Contact Davis at staff@LawStreetMedia.com.

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