Windy City Media Group Frontpage News


home search facebook twitter join
Gay News Sponsor Windy City Times 2021-12-08



Kagan's recusals possible barrier to pro-gay rulings
Extended for the Online Edition of Windy City Times
by Lisa Keen, Keen News Service

This article shared 1928 times since Wed Sep 22, 2010
facebook twitter google +1 reddit email

At first glance, it might draw a yawn: Elena Kagan, the U.S. Supreme Court's newest member, has recused herself from some cases that are coming before the court. But have a cup of coffee and ruminate for a few minutes over this list of cases that could very well be before the nation's highest court within a very few years:

Perry v. Schwarzenegger, Gill v. Office of Personnel Management, Massachusetts v. Health and Human Services, Log Cabin Republicans v. U.S., and Witt v. U.S.

If Kagan recuses herself from any of these cases, the probability for a tie is the best the LGBT community can hope for in any of these cases. Rather than pinning hopes on Justice Anthony Kennedy to serve as a swing vote to victory, pro-gay attorneys will be desperate to persuade Kennedy in order to maintain the status quo.

When there's a tie in the Supreme Court, the lower court ruling stands but applies only to that federal circuit.

So, if the 9th Circuit agrees with District Court Judge Vaughn Walker that California's same-sex marriage ban is unconstitutional and the Yes on 8 supporters of Proposition 8 appeal to the Supreme Court, the best gay-rights supporters could hope for—given the current ideological make-up of the court—is to preserve the 9th Circuit ruling for the nine 9th Circuit states.

On the other hand, if the 9th Circuit should disagree with Walker's ruling, perhaps the worst outcome would likely be that banning same-sex marriage would be considered constitutional in only those nine states.

Kagan, and other justices, also have the option of recusing themselves from votes about whether to take a case for appeal. It takes four justices to agree to an appeal before the Supreme Court will hear it. So Kagan's vote is also critical to whether the high court will even hear a case brought by a pro-gay advocate.

The number of Kagan recusals for this term has gained notice in several law-oriented blogs. As the Blog of the Legal Times ( BLT ) noted Sept. 10, Kagan has, thus far, recused herself from 21 of the court's current 40 cases for the session that begins Oct. 4.

As BLT noted, Kagan said during her confirmation hearing this summer that she would recuse herself from any case in which she "personally reviewed a draft pleading or participated in discussions to formulate the government's litigating position."

The BLT says the recusals seem to suggest Kagan has made "a determination that her participation at earlier stages [ in litigation ] -- even where her office [ as U.S. Solicitor General ] did not file a brief -- required her to step aside."

So far, no gay-related case is among the 21 Kagan has recused herself from. But from testimony during her confirmation hearing and elsewhere, one might surmise that Kagan could well decide to recuse herself from the two Defense of Marriage Act ( DOMA ) cases in Boston and the "Don't Ask, Don't Tell" case Witt v. U.S. In response to a question during her confirmation hearing, Kagan said she had not been a decision-maker on the DOMA cases because the Solicitor General's office does not get involved in cases until they reach the federal appeals level. The two DOMA cases were in the district court level during Kagan's tenure as Solicitor General.

But Kagan acknowledged, during her confirmation hearing, that she participated in discussions on whether to appeal the preliminary ruling in Witt.

For the current term, Kagan has not recused herself from Snyder v. Phelps, a case in which the court is being asked whether a protester has a First Amendment right to use a private funeral service as a staging ground for his or her hate speech against gays.

The family of Matthew Snyder, a Marine killed in Iraq, is bringing an appeal during the court's first week in session. The Snyders say that the Westboro, Kansas, anti-gay group led by Fred Phelps violated their right to privacy when it held signs saying such things as "God Hates Fags" at their son's funeral. ( There was never any information or suggestion that Matthew Snyder was gay. )

The 4th Circuit U.S. Court of Appeals ruled that Phelps' anti-gay messages—on placards and a website—are protected speech. The fact that the high court decided to hear the case indicates that at least four of the nine justices believe that ruling may have been in error. The case was accepted for review before Kagan joined the court. It is slated for oral argument Oct. 6.

©2010 Keen News Service

This article shared 1928 times since Wed Sep 22, 2010
facebook twitter google +1 reddit email


Gay News

Supreme Court Justice Breyer to retire; groups urge Biden to increase court's diversity 2022-01-26
- U.S. Supreme Court Justice Stephen Breyer—the panel's oldest member—plans to retire, giving President Joe Biden his first opportunity to nominate a member of the nation's top court. Breyer, 83, informed the president last week of his ...

Gay News

Justice Stephen Breyer, champion of LGBTQ+ equality, to retire; HRC comments 2022-01-26
-- From a press release - WASHINGTON — Today, in response to United States Supreme Court Associate Justice Stephen Breyer announcing his retirement, Human Rights Campaign Interim President Joni Madison issued the following statement: "With Justice ...

Gay News

VIEWPOINT: FDA must lift discriminatory blood-donor policy 2022-01-26
- With the nation's blood supply at its lowest point in a decade, and the American Red Cross declaring its first-ever national blood crisis earlier this month, it is time for the Food and Drug Administration (FDA) ...

Gay News

Indiana Court of Appeals denies trans teen's birth certificate gender-marker change 2022-01-26
- Last August, the Indiana Court of Appeals, in a two-to-one ruling, denied the request of a transgender teen's ("H.S.") to have his birth certificate's gender marker changed from female to male. A trial court judge in ...

Gay News

Report: Taliban targeting LGBT Afghans 2022-01-26
- OutRight Action International and Human Rights Watch said in a report that LGBT Afghans and people who do not conform to rigid gender norms in Afghanistan have faced an increasingly desperate situation and grave threats to ...

Gay News

Ex-NU professor sentenced for fatally stabbing boyfriend 2022-01-26
- On Jan. 25, former Northwestern University professor Wyndham Latham—who, in October 2021, was found guilty of first-degree murder in the stabbing death of Trenton Cornell—was sentenced to 53 years in prison, WGN-TV reported. Lathem, 47, was ...

Gay News

Michigan settlement lets faith-based agencies reject same-sex adoptions 2022-01-26
- Faith-based adoption agencies that contract with Michigan can refuse to place children with same-sex couples under a proposed settlement filed in federal court, a HuffPost item noted. The development happened months after the U.S. Supreme Court ...

Gay News

Florida lawmakers pass "Don't Say Gay" bill, Black LGBTQ+ civil rights group responds 2022-01-25
-- From a National Black Justice Coalition press release - FLORIDA — The Florida House Education & Employment Committee has passed HB 1557, the Parental Rights in Education bill, known as the "Don't Say Gay" bill. This bill and its companion Senate bill SB 1834 would ...

Gay News

Pope Benedict admits mistake in sex-abuse case 2022-01-25
- On Jan. 24, retired Pope Benedict XVI admitted that he did attend a meeting in Munich in 1980 where an abusive priest was discussed, saying an earlier denial was the result of an editing mistake, according ...

Gay News

Cook County gets $500K from MacArthur Foundation to increase racial equality in justice system 2022-01-24
-- From a press release - [Chicago, Jan. 24, 2022] — Last week, Cook County was announced as the recipient of a $500,000 grant by the John D. and Catherine T. MacArthur Foundation to build upon existing efforts to address racial and ...

Gay News

WORLD Namibia ruling, crimes, LGBTQ+ film festival, blogger sentenced 2022-01-23
- Namibia's High Court ruled against two same-sex couples fighting for recognition of their marriages, with Judge Hannelie Prinsloo saying she agreed with them but was bound by the nation's prohibition of same-sex relations, Reuters reported. Daniel ...

Gay News

NATIONAL Trans deaths, N.J. official, political items, 'Queer Eye' 2022-01-23
- The murders of two Black transgender women in the early days of the new year struck an ominous tone in the wake of two of the deadliest years on record for transgender Americans, Gay City News ...

Gay News

HRC condemns NCAA for failure to protect LGBTQ+ athletes 2022-01-21
-- From a press release - WASHINGTON, D.C. — Late last night, the NCAA ratified ( its new constitution, which does not include nondiscrimination policy language that had ...

Gay News

Abortion Rights Panel marks 49th anniversary with demand to defend historic Roe v Wade 2022-01-21
-- From a press release - CHICAGO — To commemorate the 49th anniversary of Roe v Wade, a diverse national panel of speakers will demand that the U.S. Supreme Court uphold Roe, defending 50 years of legal abortion, and that supporters mobilize ...

Gay News

Former pope faulted in report on sexual abuse in German diocese 2022-01-20
- A long-awaited report on sexual abuse in Germany's Munich diocese faulted retired Pope Benedict XVI's handling of four cases when he was archbishop in the 1970s and 1980s, The Chicago Tribune reported. Westpfahl Spilker Wastl, the ...


Copyright © 2022 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.