Windy City Media Group Frontpage News


home search facebook twitter join
Gay News Sponsor Windy City Times 2021-09-01



Judge Merrick Garland - close up
by Lisa Keen, Keen News Service

This article shared 2346 times since Sun Mar 20, 2016
facebook twitter pin it google +1 reddit email

Judge Merrick Garland, President Obama's nominee for the U.S. Supreme Court, has ruled against gay plaintiffs three times. This is the kind of record that might usually guarantee that Republican senators would be eager to confirm him. It might also be the sort of record that would prompt LGBT groups to urge a more cautious review.

Though the Human Rights Campaign expects to support Garland's nomination, it and other LGBT groups and leaders, such as U.S. Senator Tammy Baldwin, are taking some time to study his record before endorsing him. But most Senate Republicans are, for the moment, standing firm in their refusal to consider the nomination —at least, not until they calculate that Garland would be a better nominee than the next president might select. (Senate Majority Leader Mitch McConnell promised Sunday "that's not going to happen.")

"I cannot imagine that the Republican-majority Senate, even if it were soon to be a minority, would want to confirm a judge that would move the court dramatically to the left," McConnell told Fox News anchor Chris Matthews.

And that seems to be the growing assessment of Garland: that, despite a relatively moderate to conservative record, he would become part of the Supreme Court's liberal bloc.

New York Times legal reporter Adam Liptak says political scientists believe Garland would be "well to the left" of Justice Anthony Kennedy. Kennedy is the justice who has provided the key swing vote for the Supreme Court's most historic decisions in favor of equal rights for LGBT people.

"He would be the fifth member of a liberal bloc on the court," said Liptak, in a video accompanying his March 17 article. University of Chicago Law Professor Eric Posner said he thinks Garland "seems liberal" on civil rights.

Much of this speculation appears based on an analysis that found justices tend to vote based on the ideology of the president who appointed them. Garland, who has served on the U.S. Court of Appeals for D.C. for 19 years, was appointed by Democratic President Bill Clinton. But that's not foolproof conclusion. Justice Kennedy was appointed by President Reagan. And Justice William Brennan, one of the Supreme Court's most liberal justices, was appointed by President Eisenhower. (And Garland clerked for Brennan from 1978-79.)

On the day President Obama announced Garland's nomination, the Human Rights Campaign issued a statement, calling him "highly qualified." But the group stopped short of an endorsement. A spokesperson said HRC would make an official endorsement decision after it does its own examination of his record and after Garland gets a hearing from the Senate Judiciary Committee.

"President Obama has a history of appointing pro-equality Supreme Court Justices," said the spokesperson, referring to Justices Sonia Sotomayor and Elena Kagan. "We are confident that, in Judge Garland, we will find another Associate Justice to the Supreme Court who stands on the side of fairness and equality."

Garland has an extensive record. He has participated in thousands of cases. Three of those cases had gay plaintiffs, but all three failed to get the relief they sought from three-judge panels that included Garland.

The first case involved an Ohio man, Jerry Szoka, who operated a low-power FM radio station in 1997 specifically to reach gay men and women and the arts community in Cleveland. But the Federal Communications Commission had banned the operation of such small stations —known as microbroadcast stations—because they were causing interference with major radio stations that served the broad general public. Szoka operated the radio station in defiance of the ban and without ever applying for a radio operator's license. The FCC ordered him to stop broadcasting and to pay an $11,000 per day fine for every day in defiance. In Grid Radio v. FCC, Szoka filed suit in federal court to challenge the order, and jurisdictional issues brought the case before the D.C. Circuit. Szoka said the ban on microbroadcasting violated the Communications Act of 1934 and his First Amendment rights to serve a community that was "not adequately served" by full-power stations. The panel rejected his first claim, noting that Szoka never applied for a license, then rejected his First Amendment claim.

"Valuable as Grid Radio's broadcasts may have been," stated the 2002 panel decision penned by Judge David Tatel, "we think it clear that the Commission had no obligation to consider the station's individual circumstances before shutting it down." The panel said the FCC was simply enforcing a ban on microbroadcasting. "Permitting Szoka or anyone else to operate without a license as a means of challenging the microbroadcasting ban…could produce the very chaos…the licensing regime was designed to prevent."

In the second case, Turner v. Department of the Navy (decided in 2003), Petty Officer Jim Turner sued the Secretary of the Navy to overturn his "other than honorable" discharge. In 1994, when the military's policy of banning openly gay people was still in place, several of Turner's male peers on the USS Antietam accused him of making sexual advances. The ship's captain and an administrative board declared him guilty and discharged him. A Board for Correction of Naval Records said there was insufficient corroboration of the charges and recommended his record be cleared. But a deputy assistant Secretary for the Navy rejected that recommendation.

Turner sued in federal court, echoing the BCNR's finding that the evidence against him had been insufficient. Turner also argued that his captain violated the "Don't Ask, Don't Tell" regulations by initiating an investigation without "credible evidence" and that an investigator violated the policy by asking one of the sailors about his sexual orientation.

The appeals panel, which included Garland, noted that Turner had "a respectable record of seven years of military service" and that the charges against him initially seemed more like "inflamed" interpretations of "horseplay." But it upheld a federal district court, saying proper procedures had been followed. The decision was written by Senior Circuit Judge Stephen Williams.

In the third case, Garland was on a panel with then appeals court Judge John Roberts Jr., who now serves as chief justice of the U.S. Supreme Court. The case was International Action Center v. U.S. The 2004 decision addressed a lawsuit filed by a coalition of groups and individuals who opposed "racism, sexism, oppression of lesbians, gays, bisexuals and transgendered people." It sued federal and local law enforcement personnel for injuries inflicted on protesters at President George W. Bush's first inaugural parade. The protesters said that, while engaging in "lawful, peaceful activity" along the parade route, undercover officers struck them and sprayed them with pepper spray. The lawsuit alleged that supervisors of the undercover officers should be held personally liable for their injuries. The supervisors argued they had qualified immunity and a three-judge panel that included Garland agreed. Roberts wrote the panel opinion, saying plaintiffs failed to establish that the police supervisors were guilty of misconduct in their training and supervision of police, rather than "mere negligence."

Jon Davidson, national legal director for Lambda Legal, said the three gay-plaintiff cases "don't tell us very much about his judicial philosophy or views of constitutional and legal issues relating to sexual orientation, gender identity or HIV status."

Lambda and many groups and court enthusiasts are poring over Garland's record now, and many will likely find details that will encourage or encumber their support for the nominee. For instance, the Boston Globe reported Saturday that Garland, "under pressure from a leftist group" during the 1970s' Vietnam protest era at Harvard undergraduate school, asked a student-faculty committee to consider having a campus referendum on whether the school should allow ROTC back on campus. He then later voted against holding a referendum. That left the existing ban intact. Without predicting how Republican senators might react, the Globe noted that "any whiff of an antimilitary record will raise red flags for Republicans…."

More likely, it will prompt Republicans —if they ever give Garland a confirmation hearing — to quiz him over a similar ROTC flap that emerged six years ago during the confirmation hearing for the last new justice, Elena Kagan. Kagan had been dean of Harvard Law when Harvard had a policy of barring recruiters from campus because of the military's policy of banning openly gay people. During her confirmation hearing, Republican senators grilled her about it. Kagan said she found a way to let military recruiters have "full access" to students while still enforcing the school's ban against sexual orientation discrimination.

The military's ban no longer exists and most campuses no longer bar military recruiters but, if Kagan's confirmation can be somewhat of a guide, Garland or the next justice nominee can expect to field questions from Republican senators asking whether he is a "legal progressive," whether he thinks the Supreme Court was right to strike down state bans on marriage for same-sex couples, and religious objections to anti-discrimination laws that protect LGBT people. And if history can be a guide, the nominee's answers will likely leave everyone guessing until they're on the high bench.

© 2016 Keen News Service. All rights reserved.

This article shared 2346 times since Sun Mar 20, 2016
facebook twitter pin it google +1 reddit email

Windy City Media Group does not approve or necessarily agree with the views posted below.
Please do not post letters to the editor here. Please also be civil in your dialogue.
If you need to be mean, just know that the longer you stay on this page, the more you help us.


Gay News

Chicago Ald. Cappleman attacked
On the night of Sept. 18, Chicago Ald. James Cappleman was attacked in the Uptown area of the city, The Chicago Tribune reported. Cappleman, in charge of the 46th Ward, is one of five members of ...

Gay News

WORLD Germany's compensation, Lyra McKee, LGBTQ Afghans, tennis player
Germany has compensated almost 250 people who were prosecuted or investigated under a Nazi-era law criminalizing homosexuality, according to euronews. By September, 317 people had applied for compensation for their ...

Gay News

Patrick J. Kennedy to receive award from Trilogy at virtual gala
Chicago-based Trilogy Behavioral Healthcare will present its Partner in Recovery Award to The Kennedy Forum founder, mental-health advocate and former Congressman Patrick J. Kennedy as a part of its virtual 50th-anniversary gala on Thursday, Oct. 21. ...

Gay News

Polis marriage marks first same-sex wedding of sitting governor
On Sept. 15, Colorado Democratic Gov. Jared Polis wed longtime partner Marlon Reis—marking the first same-sex marriage of a sitting U.S. governor, NPR reported. Polis keeps making history. In 2018, Polis became the first openly gay ...

Gay News

Hastert settles sexual-abuse lawsuit
Days before a trial was set to begin, former U.S. House Speaker Dennis Hastert reached a tentative settlement in a hush-money lawsuit filed by a man whose decades-old sexual-abuse allegations led to the politician's downfall six ...

Gay News

Now, only five of Chicago's 50 aldermen reject automatic pay raises
Forty-five out of 50 Chicago aldermen have opted to accept a 5.5% pay increase in 2022 that will push the highest paid among them to an annual salary of more than $130,000, according to The Chicago Tribune. ...

Gay News

Chicago alderman apologizes for 'offensive words'
Jim Gardiner, alderman of Chicago's 45th Ward, apologized during the Sept. 14 Chicago City Council meeting for his "offensive words" but said he "never acted on any of those rants" in which he appeared to call ...

Gay News

Gov. Pritzker signs transformative energy legislation for Illinois
--From a press release - CHICAGO — Delivering on principles previously laid out, Governor JB Pritzker signed landmark legislation into law that puts the state on a path toward 100% clean energy, invests in training a diverse workforce for the jobs ...

Gay News

Gavin Newsom wins Calif. recall election
On Sept. 14, California Democratic Gov. Gavin Newsom defeated a GOP-backed effort to remove him from office, media outlets reported. Speaking from Sacramento, Newsom thanked Californians for rejecting the recall effort, according to He also ...

Gay News

Catholic theologians urge protections for LGBTQ+ people
More than 750 of the nation's leading Catholic theologians, church leaders, scholars, educators and writers have joined New Ways Ministry in voicing support for nondiscrimination protections for LGBTQ people, according to a New Ways press release. ...

Gay News

'Homophile' organization New Gay Liberation Front launches
The New Gay Liberation Front—which described itself in a press release as a "homophile organization"—has launched. "Homophile" is a term that was used by some gay and lesbian groups in the 1950s. According to the University ...

Gay News

Men Having Babies surrogacy conference on Oct. 9
The Men Having Babies 2021 Midwest Surrogacy Conference & Expo will take place Saturday, Oct. 9, 9 a.m.-7 p.m., at Center on Halsted, 3656 N. Halsted St. According to a press statement, more than 100 (vaccinated!) ...

Gay News

NATIONAL Teachers, GLAAD talks HRC, 9/11 items, Dr. Rachel Levine
In North Carolina, a former teacher won a lawsuit against Charlotte Catholic High School and the Roman Catholic Diocese of Charlotte after he lost his job following an announcement on Facebook that he planned to marry ...

Gay News

WORLD False report, Indian activist dies, fashion exhibit, LGBT Awards
In Spain, a man who claimed eight hooded men carved an anti-gay slur on his butt using a knife in a horrific hate crime later said the act was consensual, according to According to police ...

Gay News

Women & Children First hosting virtual event with Anita Hill on Sept. 29
Anita Hill—the University Professor of Social Policy, Law, and Women's and Gender Studies at Brandeis University who played a major role in the 1991 Senate confirmation hearings for U.S. Supreme Court nominee Clarence Thomas—will be part ...


Copyright © 2021 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.








About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots      OUT! Guide     
Identity      BLACKlines      En La Vida      Archives      Advanced Search     
Windy City Queercast      Queercast Archives     
Press  Releases      Join WCMG  Email List      Email Blast      Blogs     
Upcoming Events      Todays Events      Ongoing Events      Bar Guide      Community Groups      In Memoriam      Outguide Categories      Outguide Advertisers      Search Outguide      Travel      Dining Out      Privacy Policy     

Windy City Media Group publishes Windy City Times,
The Bi-Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.