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”:

2.    From the United States Senate, Committee on the Judiciary: Questionnaire for Judicial Nominees:

3.    From Alliance for Justice
a.    “Supreme Court Watch: The Kagan Nomination”:
b.    Report on Elena Kagan:
c.    Report on Elena Kagan’s Testimony:

4.    From the American Civil Liberties Union: Report on the nomination of Elena Kagan:

5.    From the American Constitution Society for Law and Policy: Elena Kagan Confirmation Hearings Resources:

6.    From Art Leonard, Professor of Law, New York Law School: “The Kagan Appointment and the Question of Judicial Experience”:

7.    From the Human Rights Campaign: “HRC Endorses Solicitor General Elena Kagan for Associate Justice of the United States Supreme Court”:

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”:

10.    From the National Association for the Advancement of Colored People: “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”:

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”:
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)