In Brief: Keeping the 'Just' in Justice

• (In English)

From July, 2010 eNews Vol. 7 No. 7

This week, Elena Kagan answered questions before the Senate Judiciary Committee about her fitness for the bench of the nation's highest court.

For our movement, the hearings coincided with an anniversary of enormous significance. Last Saturday marked seven years since the Supreme Court handed down its decision in Lawrence v. Texas. Lambda Legal's landmark victory resulted in the repeal of all remaining state sodomy laws and a sweeping change in the legal landscape for LGBT people.

The Supreme Court more recently ruled in two cases—both of which Lambda Legal joined as amicus—which demonstrate the impact the court can have on our freedoms.

In Christian Legal Society (CLS) v. Martinez, the court upheld, in a 5-4 decision, Hastings Law School's requirement that officially recognized student organizations adhere to school policy, which prohibits discrimination on the basis of sexual orientation, among other grounds. In Doe v. Reed, the court rejected an attempt to invalidate the Washington Public Records Act (WPRA) in order to keep confidential the names of state residents who sign petitions to put referenda before voters. In this instance, the signers seeking secrecy supported Referendum 71—which, if passed, would have repealed domestic partnerships in the state. Signers and their advocates said they feared threats and harassment if their names were made public. Our friend-of-the-court brief refuted the false claims that individuals who support antigay initiatives have been subjected to "systematic intimidation" by the lesbian, gay, bisexual and transgender (LGBT) community. Statistics overwhelmingly confirm that it is our community which is the target of real and sustained discrimination, harassment and violence.

In both cases, the court had to cut through arguments that attempted to pit religious freedom and/or freedom of speech against equal protection and, in the case of Reed, the transparency that is vital for any functioning democracy. In Reed, our brief was cited in oral argument before the Court; in CLS, the majority opinion referenced both Lambda Legal's brief and the decision we won in Lawrence.

While Kagan, a former Harvard Law School dean and the current U.S. Solicitor General, prepared to address concerns about her judicial record, Lambda Legal, along with colleagues at the Human Rights Campaign, got busy. We reviewed approximately 160,000 pages of documents from Kagan's service during the Clinton administration; her writings as a U.S. Supreme Court clerk; her written answers to the Senate Judiciary Committee's questionnaire and the transcript of her hearings as nominee for the post of Solicitor General.

We summed up our findings in a letter to the Senate Judiciary Committee, which we sent on June 25. In it, we emphasized that it was crucial for any Supreme Court justice to follow long-held precedents establishing that "there is no exemption available to those with religious objections to compliance with generally-applicable, neutral laws, including laws prohibiting discrimination based on sexual orientation, gender identity or HIV in employment, housing or public accommodations."

Despite tremendous progress, discrimination in schools, workplaces and neighborhoods continues. It is our job as defenders and advocates to remind our lawmakers that we remain vigilant. We need a justice who will use her seat on the bench to ensure that the principles enshrined in our Constitution—liberty, justice, equality—are not just ideas, but meaningful realities for all Americans.