What’s at Stake: The Future of the Supreme Court Following Justice Kennedy’s Retirement

By Shane Stahl • July 9, 2018 • 2:36 pm

Following the retirement of Justice Anthony Kennedy, a lynchpin in many important cases regarding LGBTQ people, on June 27, the stage has been set for President Trump to appoint his second Supreme Court nominee in two years, which could have a major impact on the outcome of future cases involving the LGBTQ community, cases concerning nondiscrimination in particular. In an op-ed penned by new Freedom for All Americans Chief Counsel Jon Davidson, he states: “A nominee without Kennedy’s respect for the equality, liberty and dignity of LGBT people could well do grave damage to the progress that’s been achieved.”

Current cases pending in the judiciary include those regarding the rights of LGBTQ people to be protected from discrimination in housing and employment, as well transgender students being able to use the restrooms that correspond with their gender identity. Check out a list of the types of cases that may come before the high Court in the near future, making it essential for any potential nominee to be held to a high standard on LGBTQ issues.

Cases Challenging Trump’s Anti-Transgender Military Ban

In the courts since mid-2016, a group of cases – including Karnoski v. Trump, Doe v. Trump, Stone v. Trump, and more – challenging the constitutionality of the Trump administration’s attempted ban on open transgender military service have continued to make their way through the federal system. To date, every attempt to implement the ban has been stayed by the federal courts – including four lower courts, the U.S. Court of Appeals for the 4th Circuit, and the D.C. Federal Circuit.

Cases Centered on the Dignity of Transgender Students

Several cases concerning transgender students are winding their way through the federal courts, including Gavin Grimm v. Gloucester County School Board, a case that was formerly scheduled for argument before the U.S. Supreme Court. In that case, transgender teenager Gavin Grimm  filed suit against his local school district when it refused to allow him access to the bathrooms and locker rooms that correspond to his gender identity as a transgender boy. However, once the Trump Administration revoked previously issued guidance to schools on how to accommodate transgender student, the case was remanded back to the Virginia District Court for further consideration. Recently, the court again ruled in Grimm’s favor, moving the case again to the Fourth Circuit Court of Appeals. A similar case includes Doe v. Boyertown, in which the anti-LGBTQ organization Alliance Defending Freedom has just sought en banc review from the U.S. Court of Appeals for the 3rd Circuit.

Cases Focused on Anti-LGBTQ Exemptions Due to Religious Beliefs

Following the Justices’ decision in the Masterpiece Cakeshop case, where they found a state civil rights commission had improperly ruled against a bakery who refused service to a male same sex couple, these cases are primed to be the next concerning public accommodations protections for LGBTQ people to be litigated.

Arlene’s Flowers is virtually identical to the Masterpiece Cakeshop case – in this instance, concerning a florist refusing service to a female same-sex couple. Earlier this month, the Court remanded the case back to Washington for further consideration, which could allow it to appear before the Justices again. 303 Creative involves a web designer whose owner is seeking to preempt Colorado’s existing public accommodations law by openly discriminating against LGBTQ people. Currently, argument in 303 Creative before the Tenth Circuit Court of Appeals is scheduled for September 24.

Cases Concerning Anti-LGBTQ Employment Discrimination Protections Under Existing Federal Law

Two cases concerning Title VII employment protections, Altitude Express v. Zarda and EEOC and Aimee Stephens v. Harris Family Funeral Homes both saw significant decisions from federal appellate courts come down this year in favor of their LGBTQ plaintiffs. Zarda involved a gay male skydiving instructor fired from his job after revealing his sexuality to a customer; unfortunately, the plaintiff in the case, Don Zarda, passed away before he could see judgment in his favor. In February of this year, the Second Circuit Court of Appeals issued an en banc decision in Zarda’s favor, stating Title VII prevents discrimination based on sexual orientation. Attorneys for the skydiving company have filed to have the case heard before the high Court – their cert. petition joins a similar petition in Bostock v. Clayton County.

EEOC involves an openly transgender woman, Aimee Stephens, who was terminated from her position at a funeral home after disclosing her gender identity. After a terrible initial ruling, where a District Court judge ruled the funeral home’s actions were justified under the auspices of the federal Religious Freedom Restoration Act, the Sixth Circuit Court of Appeals overturned the ruling in March, stating that businesses with anti-LGBTQ views are not entitled to religious exemptions. Attorneys for the defendants have until August 3 to seek review from the Supreme Court.

Cases on Anti-LGBTQ Laws, Including Child Welfare Discrimination Laws

After discriminatory bills concerning LGBTQ adoption were passed in Kansas and Oklahoma this year, the Dumont case may prove to be an important litmus test regarding adoption practices. The case originates in Michigan, one of a handful of states where private and publicly funded adoption agencies are able to discriminate against LGBTQ people when placing a child in the home by claiming a “religious or moral objection.” Our legal partners at the ACLU are counsel for the plaintiffs, and a hearing in the case will be held by the Michigan Federal District Court on July 12.


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