Tag Archives: LGBTQ
Justices Thomas and Alito Want a Constitutional Right to Pray Away the Gay

Cornell Law professor Michael C. Dorf discusses the Supreme Court’s refusal to hear a case challenging Washington State’s ban on conversion therapy, Tingley v. Ferguson, and specifically the implications of the dissent from Justices Clarence Thomas and Samuel Alito. Professor Dorf explains that their dissenting opinion demonstrates their willingness to invalidate such bans based on free speech, a stance that could undermine the regulation of medical practices. Professor Dorf points out that while a circuit split exists on the legality of conversion therapy bans, the broader concern is the potential impact of the Justices’ views on medical regulation, including recent decisions regarding access to abortion medication like mifepristone.

Five Under-the-Radar Stories to Keep Faith in Our Democracy

Former federal prosecutor Dennis Aftergut comments on five stories you might have missed that inspire continued faith in the functioning of our democracy. Mr. Aftergut suggest that when anti-democratic developments occur, citizens in a free society should never underestimate our ability to get things back on track by flexing our collective, pro-democracy muscle.

The Figurative and the Literal: Disagreeable Speech versus Intimidation and Physical Attacks

Continuing his discussion of the incident at Stanford Law School, UF Levin College of Law professor Neil H. Buchanan explains the essential difference between disagreeable speech and intimidation and threats of physical violence. Professor Buchanan reminds us that the consequences of being disfavored and vulnerable are not a matter being socially unpopular, but matters of life and death.

The End of a Bad Era: Congress Repeals the Defense of Marriage Act

SMU Dedman School of Law professor Joanna L. Grossman comments on the passage of the Respect for Marriage Act, which practically and symbolically enshrines protection for same-sex marriage in federal law. Professor Grossman explains the shameful history of the Defense of Marriage Act (DOMA) and the changes effectuated by the Respect for Marriage Act.

Can SCOTUS Prevent Free Speech from Swallowing Anti-discrimination Law?

Cornell Law professor Michael C. Dorf explains the options available to the U.S. Supreme Court as it considers 303 Creative LLC v. Elenis, which presents a clash between a Colorado law forbidding places of public accommodation from discriminating based on sexual orientation and a conservative Christian web designer’s objection to creating material that, she says, tacitly expresses approval of same-sex marriage. Professor Dorf points out that the Court could conclude that the case does not implicate free speech at all, but instead it will almost surely rule against Colorado, which could pose a potentially existential threat to anti-discrimination law.

Overruling Roe is Just the Beginning

In response to the leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Org., Cornell Law professor Michael C. Dorf comments on the likely ramifications of the Supreme Court’s overruling Roe v. Wade, the seminal case recognizing the constitutional right to seek an abortion. Professor Dorf argues that the language and reasoning of the draft suggest that this emboldened Court with a super-majority of Republican appointees is also preparing to overrule Lawrence v. Texas (recognizing the right of consenting adults to engage in same-sex sexual conduct) and Obergefell v. Hodges (recognizing the right of same-sex couples to marry).

Masterpiece Cakeshop Redux and the Homophobia Exemption from Anti-Discrimination Law

Cornell Law professor Sherry F. Colb comments on a case the U.S. Supreme Court recently agreed to review that presents the question whether the application of a state anti-discrimination law to a web designer who wishes to exclude same-sex couples from her services violates the Free Speech Clause of the First Amendment. Professor Colb predicts that the Court is likely to hold that the law as applied to the web designer does violate her free speech right—continuing a pattern of almost exclusively granting homophobes special First Amendment exemptions from anti-discrimination law.

Can Philly and LGBTQs Still Win?

UNLV Boyd School of Law professor Leslie C. Griffin comments on the Supreme Court’s unanimous decision in Fulton v. City of Philadelphia, in which the Court held that Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agreed to certify same-sex couples as foster parents violated the Free Exercise Clause of the First Amendment. Professor Griffin joins numerous Catholic leaders in urging Catholic believers—a majority of whom support allowing LGBTQ couples to adopt children, contrary to CSS’s position in this case—to tell their leaders to support all families, including gay families.

What’s Not the Matter with Kansas: State Supreme Court Broadly Recognizes the Rights of Lesbian Co-Parents

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Kansas Supreme Court holding that a woman who conceives through artificial insemination and her same-sex partner can both be deemed the legal parents of any resulting child born during their relationship under the Kansas Parentage Act, even if the couple has not entered into a co-parenting agreement. Grossman explains the facts of the case and the court’s reasoning, and she explains why the court effectively balanced the rights and interests of the two women.

Stigma and the Oral Argument in Fulton v. City of Philadelphia

UNLV Boyd School of Law professor Leslie C. Griffin explains why stigma is a central concept that came up during oral argument before the Supreme Court in Fulton v. City of Philadelphia. Griffin points out that some religions have long supported racial discrimination, citing their religious texts, but courts prohibited such discrimination, even by religious entities. Griffin argues that just as religious organizations should not enjoy religious freedom to stigmatize people of color, so they should not be able to discriminate—and thus stigmatize—people based on sexual orientation.

The Scope of Bostock v. Clayton County’s Contribution to LGBTQ Rights Is Not as Broad as You Might Think: Beware the “Super Statute” RFRA

University of Pennsylvania professor Marci A. Hamilton applauds the U.S. Supreme Court’s decision in Bostock v. Clayton County, holding that gay and transgender employees are protected under Title VII, but she cautions that that Bostock’s contribution to LGBTQ rights is curtailed by the Religious Freedom Restoration Act (RFRA). Hamilton calls for repeal, or at least significant reform, of RFRA to protect the civil rights of LGBTQ individuals restore the values of mutual dignity and respect enshrined in law.

Good Rights News Now, Bad Rights News Later?

UNLV Boyd School of Law professor Leslie C. Griffin comments on the U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that under Title VII, an employer cannot fire an employee simply for being gay or transgender. Griffin considers what might happen next term when the Court takes up the question of whether religious organizations are exempt from these generally applicable laws and thus may discriminate against LGBTQ employees (and others).

Same-Sex Couples, Identical Twins, and the Text of Title VII: Point-Counterpoint

Cornell law 3L Jareb Gleckel and professor Sherry F. Colb discuss, in point-counterpoint style, one aspect of the legal issue presented in Altitude Express v. Zarda—in which the U.S. Supreme Court will decide whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees based on sexual orientation. Gleckel argues that sexual orientation discrimination does not qualify as sex discrimination under the text of Title VII and describes a hypothetical example in support of his argument. In response, Colb first addresses Gleckel’s formalistic argument and then contends, even assuming Gleckel’s premise to be true, that because the policy at issue in Zarda discriminates between men and women both formally and in a manner that inflicts a gender-relevant injury, it violates the text of Title VII.

Three-Ring Circus: The Supreme Court Hears Argument in Three Cases about Protection Against Discrimination for LGBT Workers

SMU Dedman School of Law professors Joanna L. Grossman and Grant M. Hayden discuss several cases set for argument this week before the U.S. Supreme Court raising the question whether Title VII of the Civil Rights Act of 1964 protects against sexual orientation discrimination or transgender discrimination. Grossman ad Hayden describe the history of the protections of Title VII and explain why a textualist reading of Title VII should mandate a ruling protecting employees against sexual orientation and transgender discrimination.

Legislating LGBTQ Rights From the Courts in the United States and Brazil

Brazilian legal scholar Igor de Lazari, Brazilian law professor Antonio G. Sepulveda, and attorney David S. Kemp compare the evolving recognition of the rights of LGBTQ individuals in Brazil and the United States. De Lazari, Sepulveda, and Kemp describe specifically the role of courts in recognizing these rights and establishing protections in the absence of clear legislation.

SCOTUS LGBT Discrimination Case Will Test Conservative Commitment to Textualism

Cornell law professor Michael C. Dorf comments on three cases in which the US Supreme Court recently granted review that together present the question whether Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the basis of sexual orientation and gender identity. Dorf points out that the cases pose a test for the Court’s conservative majority—whether they will keep faith with their textualist commitment and rule for the plaintiffs or instead follow their conservative social views and rule for the defendant employers.

Holy Dictum: Federal Judge Rejects Protection Against Transgender Discrimination in “Elegant Aside”

SMU Dedman School of Law professors Joanna L. Grossman and Grant M. Hayden comment on a concurring opinion by a Fifth Circuit judge that goes well out of its way to make illogical arguments regarding transgender discrimination under Title VII. Grossman and Hayden briefly describe the history of courts’ interpretation of Title VII and explain, point by point, why Judge James Ho’s writing is merely an “op-ed piece masquerading as a concurring opinion.”

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more