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Experts weigh impact of judiciary on LGBTQ rights
by Matt Simonette
2020-07-02

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A panel consisting of prominent legal and public policy officials met June 23 to discuss recent developments in LGBTQ legal advocacy, particularly as it has been affected by the federal courts.

The online forum was hosted by Courts Matter Illinois, which, according to its Facebook page, is a "coalition of organizations and individuals in Illinois advocating for a fair and diverse federal judiciary filled with fair-minded constitutionalists."

Carole Levine, the organization's board chair, introduced the participants. She noted that the presidential nomination process for judges, as well as vetting by the Senate, has been "truncated. … Very little time goes into the process at all." She added that recent nominees by President Donald Trump are not diverse, nor have they frequently been rated as qualified by the American Bar Association.

Megan O'Malley, a co-founder of Courts Matter Illinois who specializes in litigating anti-LGBTQ discrimination in her practice, moderated the panel.

Having the bench closely resemble the diversity of society is especially important now, since more Americans are having contact with the courts, said Circuit Court of Cook County Judge Cecilia Horan, who is a lesbian.

Horan emphasized, "This isn't just an LGBTQ issue. How the courts interact with all minorities is important."

She added that the perception of fairness is especially important since polls show that Americans' confidence in the judicial branch is diminishing. The legal system, Horan said, is faced with "a legitimacy crisis" as more people become convinced that judges are not operating from a place of "equality and justice."

Chicago-based attorney Camilla Taylor, who is director of constitutional litigation for the national advocacy Lambda Legal, summarized the strategies behind her organization's arguments leading to the U.S. Supreme Court's landmark June 15 ruling that anti-LGBTQ discrimination in employment is a form of sex-based discrimination, thereby granting LGBTQ Americans protections under the Civil Rights Act of 1964.

Taylor said that the decision was "blockbuster," since LGBTQ Americans have made relatively little progress with federal legislators. Most of the community's historical advancements have come from within the courts or statehouses.

She added that the Supreme Court's decision was based on a fairly conservative argument based on a clear reading of the law's texts. The ruling gave Taylor confidence that the Court was operating from a place of integrity and not "with an anti-LGBTQ agenda."

Taylor also related the impact of the June 18 DACA decision on future LGBTQ-rights litigation. The court primarily ruled that the Trump administration's DACA rollbacks were haphazard and ordered without significant justification, just as many of their anti-LGBTQ rollbacks have been. Taylor said lawyers will likely be able to use the DACA ruling as precedent in litigation to overturn those rollbacks.

Mike Ziri, director of public policy for Equality Illinois discussed the relative insignificance of federal Supreme Court decisions, since the Court hears only about 80 cases a year.

"Lower federal courts and state courts are where the real action is," Ziri said, further noting that, at least in Illinois and several other states, judges are elected, offering constituents a level of agency they don't have with federal judges, who receive lifetime appointments.

Ziri also said that lower courts and legislatures are vital in preserving the integrity of laws. For example, right-wing elements have continually tried to carve out religious-exemptions for themselves within the law, giving them tacit license to discriminate against whomever they wish.

"It's important to make sure that state laws are as robust as they can be," Ziri said.


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