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LGBTQ+ expectations if one of these Black women named to High Court

Top three picks have had engagements- not all positive- past actions & statements on LGBTQ+ issues may factor into the confirmation process

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From left, Judge of the U.S. District Court for the District of South Carolina J. Michelle Childs, Judge of the U.S. Court of Appeals for the District of Columbia Circuit Ketanji Brown Jackson & California Supreme Court Justice Leondra Kruger (Blade photo montage)

WASHINGTON – With another battle over the U.S. Supreme Court underway after the announced retirement of U.S. Associate Justice Stephen Breyer, progressives have a chance to make an imprint on the judiciary with the nomination of the first Black woman as promised by President Biden — and their past actions and statements on LGBTQ issues may factor into the confirmation process.

The three Black women most talked about as potential choices — D.C. Circuit Judge Ketanji Brown Jackson, U.S. District Judge J. Michelle Childs of South Carolina and California Supreme Court Justice Leondra Kruger — have each made statements or undertaken past work related to issues facing the LGBTQ community, and they’re not all positive, despite the reliable reputation they’ve all built in the progressive legal community.

Ketanji Brown Jackson, who’s considered to be closely aligned with Breyer after having clerked for him between 1999 and 2000, is seen as a hero in the progressive community for her previous work as a public defender. But she once worked as an adviser for a Baptist school in the Maryland suburbs that had a mission statement against LGBTQ people and abortion.

The now-defunct school, known as Montrose Christian School, had a statement on its website condemning homosexuality and abortion consistent with its religious views, as documented by the conservative Washington Examiner at the time of Jackson’s confirmation process for her current seat on the D.C. Court of Appeals.

The mission statement urged students to uphold a “Christian character,” which among other things in the views of the school, meant they should oppose “all forms of sexual immorality, including adultery, homosexuality, and pornography.” Abortion is also implicitly condemned in the mission statement: “We should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.”

If nominated, conservatives smarting from attacks on now U.S. Associate Justice Amy Coney Barrett during her confirmation process over her ties to religious groups with anti-LGBTQ views, as well as her affiliation with the anti-LGBTQ legal group Alliance Defending Freedom, may cynically highlight Jackson’s past affiliation with the school as a reason to attack her or progressives as hypocrites for not opposing her confirmation.

Jackson addressed her past work with the school during the confirmation process for her current job in response to questions from Sen. Richard Durbin (D-Ill.) on her past work, maintaining her role on the advisory board for Montrose Baptist Church was limited and she was unaware of its position statement.

“I was aware that Montrose Christian School was affiliated with Montrose Baptist Church,” Jackson said. “I was not aware that the school had a public website or that any statement of beliefs was posted on the school’s website at the time of my service. My service on the advisory school board primarily involved planning for school fundraising activities for the benefit of enrolled students. I did not receive any compensation for my service.”

Trying to predict the bent of potential justices on LGBTQ issues, or any issue, through the lens of previous isolated actions or past work can be difficult, even based on the party of the president who’s making a selection for the U.S. Supreme Court. As an example, U.S. Associate Justice Neil Gorsuch upon nomination by former President Trump was hailed by conservative groups and vehemently opposed by LGBTQ groups, but ended up writing the majority opinion last year in Bostock v. Clayton County against anti-LGBTQ discrimination. Similarly, U.S. Associate Justice Elena Kagan during her confirmation process for her previous role as solicitor general said in written responses to questions that no right for same-sex couples to marry has been found in the U.S. Constitution, but ended up joining rulings for same-sex marriage in Windsor v. United States and Obergefell v. Hodges.

Nan Hunter, an emeritus law professor at Georgetown University who has written about LGBTQ issues, downplayed in an email to the Blade Jackson’s affiliation with Montrose Christian School as evidence she would be hostile to LGBTQ people as a Supreme Court justice.

“Judge Jackson apparently volunteered for a year to help raise money for student services at a Christian school in the D.C. suburbs,” Hunter said. “There is no indication anywhere in her professional record or personal experience that she shares anti-gay views. In my opinion, her lifelong commitment to equality more than outweighs any concern that she might be biased against LGBT rights.”

Another potential Biden pick, J. Michelle Childs, the South Carolina judge with the potential for bipartisan support after being recommended by both Rep. Jim Clyburn (D-S.C.) and Sen. Lindsey Graham (R.S.C.), has had a more direct on impact on issues facing LGBTQ people.

As a trial judge, Childs was presented in 2014 with litigation seeking marriage rights for same-sex couples in South Carolina. Although Childs as part of the litigation process rejected a request to make the lawsuit more broad and serve as vehicle for same-sex couples to obtain marriage licenses, she found South Carolina was required to honor the same-sex marriages of two lesbian couples performed in other states. Childs based on her decision on a then-recent decision from the U.S. Fourth Circuit Court of Appeals, which struck down the marriage ban in Virginia and guided her as precedent in her state.

“Because marriage is a fundamental right, South Carolina’s marriage laws are subject to strict scrutiny and survive only if they are narrowly tailored to a compelling government interest,” Childs wrote in her decision. “Based on the foregoing, the court finds that South Carolina’s marriage laws are not narrowly tailored to serve a compelling state interest as they impermissibly infringe on plaintiffs’ fundamental right to marry. Therefore, after careful consideration of the parties’ respective positions, the court finds that Plaintiffs have established the violation of their rights protected by the Due Process Clause of the Fourteenth Amendment and, as a result, they are entitled to summary judgment on their due process claims.”

Leondra Kruger, as a member of the California legal community, has also directly engaged with the LGBTQ community and was a keynote speaker in 2019 for the annual dinner for the Tom Homann LGBT Law Association, a San Diego-based affinity group for LGBTQ lawyers. The Blade this week reached a member of leadership of the association for comment on Kruger’s participation at the dinner.

In terms of legal work on LGBTQ issues, Kruger worked in the office of the U.S. Justice Department during the Obama administration and her name was under U.S. Solicitor General Donald Veriilli among the signed briefs in litigation in California against the anti-LGBTQ Defense of Marriage Act known as Golinski v. Office of Personnel Management.

Kruger’s contribution to the work in the Obama administration against DOMA, which the Supreme Court struck down in 2013, is articulated in a petition before the high court seeking review of litigation challenging the law for prohibiting federal recognition of same-sex marriages.

“Section 3 of DOMA denies to same-sex couples le­gally married under state law significant federal bene­fits that are otherwise available to persons lawfully mar­ried under state law. Because such differential treat­ment bears no substantial relationship to any important governmental objective, Section 3 violates the guarantee of equal protection secured by the Fifth Amendment.”

A queer Black woman for the bench?

Although not named in the media as among the Black women who are the major potential choices, the idea of Biden naming a pick who’s both a Black woman and queer has emerged in the advocacy community. The LGBTQ Victory Institute, which trains and seeks the appointment of LGBTQ people in federal government, has openly recommended Washington State Supreme Court Judge G. Helen Whitener to serve as Breyer’s replacement.

If Biden sought to name a queer Black woman who sits on the federal judiciary, another choice could be U.S. District Judge Staci Michelle Yandle of Illinois, an Obama-appointed judge confirmed in 2014.

One LGBTQ strategist, who spoke on condition of anonymity for greater candor, said communications with the White House have taken place on naming a queer Black woman to the Supreme Court and “there’s not been a commitment, but there hasn’t been a not-commitment.”

The White House has received the names, the strategist said, and “acknowledged that they’re qualified.” The last conservation on potentially naming a queer Black woman to the Supreme Court, the strategist said, took place last week in the wake of the announcement of Breyer’s retirement.

“I think the last year shows a really strong commitment to the LGBTQ community and having representation from our community across the administration, and so they were happy to see us surfacing qualified names of Black LGBTQ women,” the strategist said.

The White House didn’t respond to the Washington Blade’s request for comment Wednesday on how LGBTQ issues may be factoring into Biden’s selection process for the Supreme Court.

Talk of a potential queer Black woman pick for the Supreme Court comes at a time when the LGBTQ legal group Lamdba Legal has issued a report on the dearth of LGBTQ people on the judiciary. According to the report, compared to estimates 5.6 percent of Americans who identify as LGBTQ, only 1.6 percent of the federal judiciary identifies as such. As of January 2022, that includes 11 openly lesbian or gay federal district court judges and three openly lesbian or gay judges in the federal circuit courts. There has never been an openly transgender, nonbinary, or bisexual nominee in the history of the judiciary, the report finds.

Scarcity of LGBTQ people, the report finds, is also present among Biden’s choices to fill vacancies on the court despite his pledge to value diversity, although that percentage appears more consistent with the population at large. Among the 81 Biden nominees, six percent are openly gay or lesbian, the report finds.

Sharon McGowan, legal director of Lambda Legal, said in a statement based on the report the current state of the federal judiciary “fails to reflect the diversity of the nation it serves, a reality that has devastating, real-life consequences for those on the margins of society,”

“The nomination and confirmation of more openly LGBTQ+ judges must be a priority for the Biden administration in order to enhance the quality of judicial adjudication and improve the credibility of the federal judiciary as a whole,” McGowan added.

LGBTQ legal groups, for their part, appear at this stage to be taking a wait-and-see approach to Biden’s potential choice and not weighing in with conclusions on any reviews of their backgrounds. Lambda Legal, for example, indicated via a spokesperson the organization is “doing our analysis now, but don’t have any comments to make on the subject as of yet.”

Christopher Vasquez, spokesperson for the National Center for Lesbian Rights, said via email to the Blade the organization has yet to begin its evaluation, but has faith in the Biden administration on its eventual choice.

“NCLR has not yet evaluated any potential Supreme Court nominees to replace Justice Breyer,” Vasquez said. “However, during his first year in office, President Biden has shown a strong commitment to appointing judicial nominees who are pro-equality and represent the full diversity of the United States. We look forward to evaluating the president’s nominee when he names them and are confident he will choose a justice who is dedicated to LGBTQ equality as well as racial, gender, and economic justice, and has an unwavering commitment to democracy and the rule of law.”

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Hillary Clinton labels Justice Thomas ‘a person of grievance’

Clinton cautioned that Thomas was also sending a signal to attack same-sex marriage, sodomy and contraception

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Screenshot/YouTube CBS Mornings

NEW YORK – In an interview with CBS News correspondent and co-anchor of CBS Mornings Gayle King, former U.S. Secretary of State Hillary Clinton reflected on last Friday’s stunning yet expected overturn of landmark women’s reproductive choice case Roe v. Wade.

During the interview, Secretary Clinton cautioned that Associate U.S. Supreme Court Justice Clarence Thomas was sending a signal to attack same-sex marriage, sodomy and contraception to lower federal courts and state legislatures and that he would be willing to consider cases that could target those rights.

“He has signaled in the past to lower courts, to state legislatures to find cases, pass laws, get them up,” Clinton said, adding Thomas’s message to conservative judicial activists has been “I may not get them the first, the second, or the third time, but we’re going to keep at it.”

Clinton also noted, “I went to law school with [Justice Thomas]. He’s been a person of grievance for as long as I have known him — resentment, grievance, anger … Women are going to die, Gayle. Women will die.”

Hillary Clinton on abortion ruling: “Women are going to die”

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Politics

U.S. House Speaker hints at legislation to codify same-sex marriage rights

Pelosi suggested such legislation in a “Dear Colleague” letter on Monday to fellow members of the House Democratic caucus

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U.S. House Speaker Nancy Pelosi at SF Pride 2022 by photographer Barbara Kinney (published by permission)

WASHINGTON – U.S. House Speaker Nancy Pelosi (D-SF) hinted at the possibility of legislation to codify the right of same-sex couples to marry, which many fear is in danger after the U.S. Supreme Court’s decision overturning Roe v. Wade, as part of an effort to secure “freedoms which Americans currently enjoy.”

Pelosi suggested such legislation could be in the works in a “Dear Colleague” letter on Monday to fellow members of the House Democratic caucus addressing plans for congressional action after the ruling last week in Dobbs v. Women’s Health Organization, which eliminated the right for women to access an abortion.

The concurrence of U.S. Associate Justice Clarence Thomas is a core component of the letter from Pelosi, who expressed consternation about his rejection of finding unenumerated rights under the 14th Amendment of the U.S. Constitution.

“It is still appalling to me that the Chief Justice of the Supreme Court would agree that a Constitutional right does not exist if it was not spelled out explicitly and in public when the 14th Amendment was ratified over 150 years ago,” Pelosi said. “While this extremist Supreme Court works to punish and control the American people, Democrats must continue our fight to expand freedom in America. Doing so is foundational to our oath of office and our fidelity to the Constitution.”

Thomas said in his concurring opinion he welcomes vehicles that would allow the court to revisit other major decisions, such as the Griswold decision guaranteeing the right to contraceptives; the Lawrence decision decriminalizing sodomy for same-sex couples and others; and the Obergefell decision legalizing same-sex marriage nationwide.

Although Pelosi doesn’t explicitly say she’ll introduce legislation on same-sex marriage, she brought up “access to contraception and in-vitro fertilization to marriage equality,” then added, “Legislation is being introduced to further codify freedoms which Americans currently enjoy. More information to follow.”

“It is clear from how Donald Trump and Mitch McConnell stacked the Supreme Court that elections have ramifications,” Pelosi said. “It is essential that we protect and expand our pro-choice Majorities in the House and Senate in November so that we can eliminate the filibuster so that we can restore women’s fundamental rights – and freedom for every American.”

Any legislation seeking to codify marriage equality would have to get around marriage being an issue administered by the states under the guidelines of the U.S. Constitution. In the past, Rep. Jerrold Nadler (D-N.Y.) has introduced the Respect for Marriage Act, which would have required the federal government to recognize same-sex marriage and states to recognize same-sex marriage performed elsewhere.

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California Politics

Abortion rights: California Constitutional Amendment heads to ballot

The state is expanding efforts to protect women seeking abortions or reproductive care as well as anyone assisting those women

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Capitol building in Sacramento (Office of the Governor)

SACRAMENTO – In November, California voters will have an opportunity to amend the state’s constitution to include the right to an abortion and today, Governor Gavin Newsom signed an executive order to further protect women coming to California from other states.

“California will not back down from the fight to protect abortion rights as more than half the states in this country, enabled by the Supreme Court, ban or severely restrict access,” said Newsom. “We are ensuring Californians will have the opportunity this November to enshrine the right to choose in our state constitution. And we’re not waiting until November to take action, today’s executive order ensures that the state will not hand over patients who come here to receive care and will not extradite doctors who provide care to out-of-state patients here. In California, women will remain protected.”  

The order signed today prevents any information, including medical records and patient data, from being shared by state agencies or departments in response to inquiries or investigations brought by other states or individuals within those states looking to restrict access. The state is expanding efforts to protect women seeking abortions or reproductive care as well as anyone assisting those women.

SCA 10 was passed by the California State Assembly today and now heads to the November ballot.  

Within hours of the U.S. Supreme Court’s decision to overturn Roe v. Wade last Friday, Governor Newsom signed legislation to help protect patients and providers in California from civil liability for providing, aiding, or receiving abortion care in the state. In addition, Governor Newsom and the governors of Oregon and Washington launched a new Multi-State Commitment to defend access to reproductive health care and protect patients and providers.  

The budget agreement announced yesterday includes more than $200 million in additional funding for reproductive health care services. Governor Newsom recently signed legislation eliminating copays for abortion care services and has signed into law a legislative package to further strengthen access and protect patients and providers.  

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