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The Supremes’ greatest hits (and outright thuds)
Published Thursday, 31-Jul-2003 in issue 814
BEYOND THE BRIEFS
by Robert DeKoven
As I predicted earlier this year, the Supreme Court would make this the “year of the queer” with its ruling in Lawrence v. Texas. But the Court did lots more this term than just find that gays and lesbians also have privacy rights.
The college affirmative action cases are important, too. In Grutter v. Bollinger, the Court upheld an admissions program that gives a “plus” to racial and ethnic minorities in order to create a critical mass of underrepresented minorities. GLBT students should also profit from this case, as colleges move forward in their efforts to create a diverse student body.
The best colleges in the country actively recruit GLBT students and often give them bonus points in the admissions process. This is particularly so in cases where GLBT high school students have excelled despite adversity.
However, the Court decided a few other cases that are troublesome.
In U.S. v. American Library Association, the Court upheld a federal law that requires libraries receiving federal funds to screen out Internet pornography. The problem is that blocking software blocks out words, not just images. Websites designed for non-sexual GLBT groups are likely to be blocked, as well as a lot of other data protected by the First Amendment.
Keep in mind that the Supreme Court only hears about 75 cases a year, while it gets close to 8,000 appeals.The Court, by virtue of rejecting lower court appeals, lets lower court rulings stand. While they are not Supreme Court precedents — and not rulings on the merits of those cases — those cases remain on the books.
It takes four justices to vote to hear a case. Lower court rulings that support gay rights certainly get the attention of the Court, particularly from conservative justices like Antonin Scalia, Clarence Thomas and William Rehnquist.
By even if the three of them want to hear a case, they need a fourth vote. Without the fourth vote, the Court does not hear the case and the lower court ruling stands.
Keep in mind that the Supreme Court only hears about 75 cases a year, while it gets close to 8,000 appeals.
The most important case in this class involved a ruling affecting the western U.S. The Ninth Circuit Court of Appeals ruled that federal laws against gender bias cover gay men. Well, at least to the extent that the victim can show that discriminatory acts occurred because he (or she) failed to conform to a gender stereotype. This means that gay men have to really flame or that lesbians have to be super-butch to deviate from gender norms. One would think just admitting one is gay and has sex with the same sex would be enough to show non-conformity with one’s traditional gender stereotype.
Another case the court refused to hear involved a transgender teacher. A former male teacher underwent sex-reassignment surgery and wanted to use the women’s restroom. Another female school employee objected and she sued the school for accommodating the transgender teacher. A federal panel agreed with the school district, finding that the woman had not suffered sexual harassment, nor had the school infringed on her religion.
While these latter two cases were victories in the appellate courts, the most important case involving gender bias was a loss. The Court refused to hear a challenge to Kansas’ definition of “gender” under its marriage laws. A wife claimed that she was entitled to inherit under her husband’s will. But the late husband’s son said his father’s marriage was invalid because the wife had been born with male genitalia.The Kansas Supreme Court agreed, and, by doing so, denied transgender persons any protection under state or federal law.
I had hoped the Supreme Court would have taken the Kansas case and declared that gender is irrelevant to marriage, thus allowing for same-sex marriages. Unfortunately, the Court didn’t take the case.
But in Lawrence the Court recognized the natural human right to form relationships with other adults free of state intervention.
While one other case doesn’t directly affect GLBT individuals, it does affect the right of individuals to exercise their rights to bodily autonomy.The Court decided not to hear an appeal by anti-abortion militants who used “wanted” posters to publish abortion doctors’ names and addresses. The lower appellate court found that three doctors previously listed on such “wanted” posters had been killed.
The court correctly found that while it’s lawful to protest against abortion, and even to advocate violence, it’s quite another thing to target a specific person for violence.
Another recent case the Court let stand is very significant because it involved the firing of a police officer who distributed fliers with anti-black and anti-Semitic messages. (I’m sure gays would have been included if there were space.)
Given the problems a racist cop presents to any police force, the police department fired him. A federal appellate court found that the fired officer’s freedom of speech rights were outweighed by the state’s interest in having a police force free of openly racist cops. The case is also likely to prove helpful to police departments and school districts who seek to dismiss homophobic cops and teachers.
Rob DeKoven is a professor at California Western School of Law located in San Diego
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