U.S Senate Confirms Kagan 63-37

August 5, 2010

NCLR congratulates Justice Kagan on her Senate confirmation to the Supreme Court. Her experience and background serving two presidents will enable her to bring a unique perspective to the Court, and we are thrilled by the appointment of another woman to the bench. This is a historic day and NCLR is proud to stand in support of Justice Kagan.

from United Press International

The U.S. Senate Thursday confirmed Elena Kagan as the newest justice on the U.S. Supreme Court.

The Senate voted 63-37 in favor of the nomination, making Kagan, 50, the third woman sitting on the current court and the fourth woman ever confirmed to the nation’s highest bench.

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Solicitor General Elena Kagan for the Supreme Court

July 16, 2010

The Senate Judiciary Committee is likely to vote on Solicitor General Elena Kagan’s nomination to the United States Supreme Court early next week, sending it to debate and a final vote by the full Senate. Perhaps now more than ever,  our nation’s high court will play a critical role in determining the place of LGBT people in our society. This year, the National Center for Lesbian Rights was counsel in one case before the U.S. Supreme Court—Christian Legal Society v. Martinez—and participated as an amicus in another, Doe v. Reed. In both cases, the Court issued favorable decisions. In Martinez, the Court affirmed the validity of anti-discrimination policies that include sexual orientation. In Reed, the Court rejected an attempt by anti-gay groups to make it easier for voters to pass laws targeting LGBT people and other minorities. In the next few years, the Court likely will hear cases addressing the constitutionality of the Defense of Marriage Act and, possibly, of Proposition 8, the anti-marriage amendment enacted by California in 2008. The stakes for our community couldn’t be higher.

General Kagan has been nominated to replace retiring Justice John Paul Stevens, who has been a champion for equality and the rights of minorities and women in a number of key cases, including several cases specifically addressing the rights of LGBT people. General Kagan is undoubtedly well qualified to serve on the court, having served in one of the highest positions at the Department of Justice and as a widely respected legal scholar and dean of Harvard Law School. We fervently hope that she, too, will prove to be a strong defender of the core democratic principles of freedom, equal justice, and equal protection of the laws.

To help you get to know General Kagan, we’ve collected some materials that present a variety of viewpoints on her distinguished career, judicial philosophy, and numerous accomplishments (including a few more critical voices to show some of the opposition’s arguments).  This is but a small sampling of the information available about the nominee, but these sources give a sense of her impressive credentials.

1.    From the White House Blog: Elena Kagan: “Supportive Of the Men And Women Who Are Fighting To Protect Us”:
http://www.whitehouse.gov/blog/2010/05/17/elena-kagan-supportive-men-and-women-who-are-fighting-protect-us

2.    From the United States Senate, Committee on the Judiciary: Questionnaire for Judicial Nominees:
http://judiciary.senate.gov/nominations/SupremeCourt/upload/ElenaKagan-PublicQuestionnaire.pdf

3.    From Alliance for Justice
a.    “Supreme Court Watch: The Kagan Nomination”:
http://afj.org/check-the-facts/supreme-court-watch/
b.    Report on Elena Kagan:
http://afj.org/check-the-facts/supreme-court-watch/report-on-kagan-final.pdf
c.    Report on Elena Kagan’s Testimony:
http://afj.org/check-the-facts/supreme-court-watch/report-on-kagan-testimony.pdf

4.    From the American Civil Liberties Union: Report on the nomination of Elena Kagan:
http://www.aclu.org/organization-news-and-highlights/report-american-civil-liberties-union-nomination-elena-kagan

5.    From the American Constitution Society for Law and Policy: Elena Kagan Confirmation Hearings Resources:
http://www.acslaw.org/node/16061

6.    From Art Leonard, Professor of Law, New York Law School: “The Kagan Appointment and the Question of Judicial Experience”:
http://newyorklawschool.typepad.com/leonardlink/2010/05/the-kagan-appointment-and-the-question-of-judicial-experience.html

7.    From the Human Rights Campaign: “HRC Endorses Solicitor General Elena Kagan for Associate Justice of the United States Supreme Court”:
http://www.hrc.org/news/14608.htm

8.    From the Justice at Stake Campaign: “Replacing Justice Stevens”: http://www.justiceatstake.org/resources/replacing_justice_stevens.cfm

9.    From the Leadership Conference on Civil Rights: “Obama Nominates Elena Kagan to the U.S. Supreme Court”:
http://www.civilrights.org/archives/2010/05/971-kagan-nomination.html

10.    From the National Association for the Advancement of Colored People: “NAACP Endorses Supreme Court Nominee Elena Kagan”:
http://www.naacp.org/press/entry/naacp-endorses-supreme-court-nominee-elena-kagan/

11.    From the National Partnership for Women and Families: “A Superb Choice, Kagan Will Impress All Senators With Fair and Open Minds, Women’s Leader Says”: http://www.nationalpartnership.org/site/News2?page=NewsArticle&id=25003

12.    From the National Women’s Law Center:
a.    “NWLC Endorses Supreme Court Nominee Elena Kagan”: http://www.nwlc.org/details.cfm?id=3896&section=newsroom
b.    “NWLC to Testify in Support of Supreme Court Nominee Elena Kagan:” http://nwlc.org/details.cfm?id=3902&section=newsroom
c.    “The Supreme Court: Why it Matters to Women”: http://www.nwlc.org/pdf/WhyItMatterstoWomen.pdf

13.    From New America Media: “Kagan’s Affirmative Action Achilles’ Heel”:
http://newamericamedia.org/2010/05/kagans-affirmative-action-achilles-heel.php

14.    From the New York Times:
a.    “Obama Picks Kagan, Scholar but Not Judge, for Court Seat”: http://www.nytimes.com/2010/05/11/us/politics/11court.html
b.     “A Climb Marked by Confidence and Canniness”: http://www.nytimes.com/2010/05/10/us/politics/10kagan.html
c.     “Kagan Promises ‘Modest’ Approach”: http://www.nytimes.com/2010/06/29/us/politics/29kagan.html

15.    From the Washington Post:
a.    “Confirm Elena Kagan”:
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/03/AR2010070302694.html
b.    “Foes may target Kagan’s stance on military recruitment at Harvard”: http://www.washingtonpost.com/wp-dyn/content/article/2010/04/17/AR2010041701296.html

Who sits on the bench makes a difference, at every level of court, but especially on our nation’s highest court.  For our democracy to endure, we must have justices who reflect the diversity of our country and who have an unflinching commitment to the principle that every person is entitled to be treated as an equal, respected, and participating member of society.

For all of these reasons, next week’s Senate Judiciary Committee  vote on General Kagan is key.

In solidarity,


Boston Rulings Could Push Gay Marriage Closer to the Supreme Court

July 12, 2010

by Michael A. Lindenberger | TIME

When lawyers David Boies and Ted Olson filed suit last year in federal court to challenge California’s ban on gay marriage, many gay rights experts faulted them for bringing the suit too soon.

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Closing a Discriminatory Loophole

June 28, 2010

by Christopher Stoll and Shannon Price Minter | The Advocate

In a 5-4 decision authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court on Monday rejected a challenge to the University of California Hastings College of the Law’s policy requiring all funded student groups to be open to all students.

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Victory at the Supreme Court!

June 28, 2010

Full Disclosure

June 28, 2010

New York Times editorial

Americans vote in secret, but they expect most other significant political acts to take place in the sunshine, from passing laws to making campaign donations. Anonymity in those areas is inimical to a robust democracy, and the Supreme Court was right on Thursday to rule that there is no constitutional right to hide in the shadows when signing a referendum petition.

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U.S. Supreme Court Upholds University Non-Discrimination Policy in NCLR Case

June 28, 2010

Rejects challenge to Law School Policy Requiring Funded Student Groups To Welcome All Students

Today, in a 5-4 decision authored by Justice Ruth Ginsburg, the United States Supreme Court rejected a challenge to the University of California Hastings College of the Law’s policy of requiring all funded student groups to be open to all students. The policy was challenged by the Christian Legal Society (CLS), which argued that the policy violated its right to freedom of association. In Christian Legal Society v. Martinez, the Court held: “In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, . . . Hastings did not transgress constitutional limitations. CLS . . . seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.”

The National Center for Lesbian Rights (NCLR) and Paul Smith of Jenner & Block LLP represent Outlaw, the lesbian, gay, bisexual, and transgender student group which intervened to defend Hastings’ nondiscrimination policy.

The Court affirmed that the First Amendment does not require public universities to subsidize discrimination: “The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”

“Today’s decision affirmed the longstanding doctrine that university non-discrimination policies do not violate free speech when applied in a consistent and even-handed way,” said NCLR Senior Attorney Christopher Stoll. “The Court rejected the dangerous argument that anti-gay groups must be given a special exemption from non-discrimination policies. ”

Hastings, like many public colleges and graduate schools, requires student groups applying for university funding and other resources for group related events to abide by a nondiscrimination policy. In 2004, the Christian Legal Society filed a lawsuit against Hastings, arguing that the nondiscrimination policy violated the First Amendment. CLS argued in the Supreme Court that it had a constitutional right to discriminate against LGBT and non-Christian students while receiving official recognition and public funding from Hastings.

On March 17, 2009, the United States Court of Appeals for the Ninth Circuit ruled in favor of Hastings and Outlaw, rejecting CLS’s arguments that the school’s policy violates its rights to freedom of speech, religion, and association. The court explained: “Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.” The Ninth Circuit’s decision affirmed an earlier ruling by United States District Court Judge Jeffrey White upholding the nondiscrimination policy against CLS’s First Amendment challenge.

“We strongly support free speech and robust dialogue on college campuses,” said NCLR Legal Director Shannon Minter. “The Supreme Court’s decision enhances campus speech and debate by giving universities the option of requiring that officially recognized student groups admit students of all backgrounds and viewpoints, leading to richer discussions both within and among groups.”

Hastings is represented by Gregory Garre and Maureen Mahoney of Latham & Watkins, and by Ethan Schulman of Crowell & Moring LLP. Mr. Garre argued on behalf of Hastings.

read the opinion (pdf)


U.S. Supreme Court Upholds Open Government Laws

June 24, 2010

Court rejects claim by anti-gay groups that disclosure laws violate the First Amendment

Today, in an 8-1 decision authored by Chief Justice John Roberts, the United States Supreme Court decisively rejected a First Amendment challenge to a Washington statute requiring public disclosure of the names of individuals who sign petitions to place referendums or initiatives on state ballots. The case arose when anti-gay groups sued to block disclosure of the names of individuals who signed a petition supporting an ultimately unsuccessful referendum to block Washington’s domestic partnership law. In Doe v. Reed, the Court held:

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures. Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot. In light of the foregoing, we reject plaintiffs’ argument and conclude that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.”

On April 1, 2010, three of the nation’s leading lesbian, gay, bisexual and transgender (LGBT) legal organizations, the National Center for Lesbian Rights, Gay & Lesbian Advocates & Defenders (GLAD), and Lambda Legal—together with the Human Rights Campaign and the National Gay and Lesbian Task Force—joined Washington Families Standing Together and the State of Washington in filing an amicus brief defending open government laws requiring public disclosure of the names of voters who sign petitions supporting state ballot initiatives. The brief refuted the false claims presented to the Supreme Court in this and other cases that individuals who support anti-gay initiatives have been subjected to “systematic intimidation” by the lesbian, gay, bisexual and transgender (LGBT) community.

A statement by NCLR Legal Director Shannon Price Minter:

“Today’s decision is a serious defeat for groups who seek to abuse the democratic process to strip rights from vulnerable minorities, and who now wish to do so in secrecy, without even the minimal accountability imposed by laws designed to prevent fraud and abuse. This is one of a series of cases in which anti-gay groups are resisting compliance with open government laws. Thankfully, the Court recognized that the arguments presented by the anti-gay groups in this case had no merit, and that states must be permitted to protect the integrity of the political process.”


Supreme Court Rules Petition Signatures Public; Ref. 71 Names Not Immediately Available

June 24, 2010

by Janet I. Tu | Seattle Times

The names and addresses of those who sign ballot-measure petitions, such as Referendum 71, can be made public, the U.S. Supreme Court ruled today in a decision that upholds the constitutionality of Washington state’s Public Records Act.

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Loving Day

June 14, 2010

by Christopher Shay | TIME

Mildred and Richard Loving

In February 1961, Barack Obama’s parents did something that was illegal in 22 states and that 96% of the population disapproved of: They got married. In fact, interracial marriage, sex and cohabitation would remain illegal in much of the U.S. for another six years. Then on June 12, 1967, in the case Loving v. Virginia, the Supreme Court unanimously struck down the country’s anti-miscegenation laws, allowing interracial couples across the country to marry.

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