Same-Sex Marriage & 'War' on Judges

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1:48Policies provided by Hartford Fire Insurance Company and its property and casualty affiliates, Hartford, Connecticut. This is Bloomberg Law with June Grosso from Bloomberg Radio. The nearly 800 ,000 same-sex couples in this country can breathe a sigh of relief, at least for now. Today, the Supreme Court rejected an effort to overturn its landmark 2015 decision that legalized same-sex marriage. Without any comment, the justices left intact a jury verdict against Kim Davis, the former Kentucky court clerk who drew national attention by refusing to issue marriage licenses to same-sex couples. Today's order indicates that Davis couldn't get the four votes necessary for the court to take her case.

2:42Although the appeal was a long shot, it drew attention because the Supreme Court has shifted to the right since the 5-4 decision in Obergefell v. Hodges. My guest is Suzanne Goldberg, a professor at Columbia Law School and director of the school's sexuality and gender law clinic. Suzanne, this case brings up a name that was in the news 10 years ago. Tell us more about Kim Davis's appeal of a$360 ,000 damages and attorney's fee award to the couple she refused to give a license to. Within days of the Supreme Court granting same-sex couples the right to marry in a case called Obergefell versus Hodges in 2015, a couple presented themselves to Kim Davis's office and said, you know, we'd like to get our marriage license.

3:37She said no. And in fact, not only did she say no, she's a clerk for Rowan County, Kentucky, and her job was to issue marriage licenses. She said she was acting under God's authority to deny this gay couple a marriage license. And one of the men actually said to her that she had probably given marriage licenses, murderers and rapists and people who had done all sorts of horrible things. And Davis responded by saying that was fine because they're straight. So she was ultimately overridden and required to present the couple with their marriage license. But she's been up and down the chain. She's been litigating for many years now, almost a decade, saying that she as a government employee had a right to implement her religious views against marriage for same-sex couples, and based on that, those views deny a marriage license in her capacity as a government official.

4:32So quite complicated. It goes beyond a basic challenge to the idea of same-sex couples marrying, and it says essentially that somebody working as a government official should have the right to refuse services to a resident or a citizen of that location of that jurisdiction based on their faith. So when she first got up to the Supreme Court in 2020, Justice Thomas actually, when the court rejected her case, specifically said that her case did not cleanly present questions about Obergefell, the court's marriage equality ruling, to the court. And so this time around, And when Kim Davis went up to the court, she brought the same complicated set of facts related to her personal position.

5:18But she also argued that the court should reverse its Obergefell marriage equality ruling based on the same reasoning that the court had used in Dobbs, the case in which the court overturned Roe v. Wade and said there's not constitutional protection related to abortion. And so the question in this case was, would the court take up Kim Davis's challenge to the Obergefell marriage equality ruling? The court denied cert, meaning it will not take up her challenge. Most commentators expected this because her case is so particular to her situation. I think that her cert petition, her request for Supreme Court review is best understood not as a realistic shot at getting Supreme Court review of Obergefell, but instead as additional publicity for the idea that the court someday should overturn its marriage equality ruling.

6:18And in that sense, even if this cert petition itself wasn't very troubling, the broader effort to call into question marriage equality is concerning. So are you saying that same-sex couples shouldn't breathe a sigh of relief that the Supreme Court turned this case down? People can certainly breathe a sigh of relief that the Supreme Court turned down Kim Davis's cert petition. That said, I think it would be a mistake to think this is the end of these kinds of cert petitions or the end of these battles. There is an ongoing effort to try to destabilize the idea of marriage equality and ultimately the Supreme Court's ruling on marriage equality.

6:59You know, whether that will succeed, it doesn't seem to me it will succeed in the near future. But it is also important to keep an eye on this because I think many people would have said Roe v. Wade would not ultimately be overturned. And of course, it was many decades after the court first issued that ruling that was overturned in Dobbs. But we are in a time when well-established precedents are coming into question. So it's also a time for vigilance for those who care about the right to marry as protected by the Constitution. And the Supreme Court has shifted significantly to the right since that 5-4 Obergefell decision.

7:40You have three members of that majority are no longer on the court and two have been replaced by Trump appointees. So it's a different court. It is a very different court from the court that decided the Obergefell case granting, say, six couples the freedom to marry. And Chief Justice Roberts, as well as other members of the court, specifically dissented from that ruling. So we'll have to see. I think the key takeaway is the marriage equality right is safe at this moment. And certainly it is a good thing, in my view, that the Supreme Court denied Kim Davis's petition for lots of reasons. And at the same time, it is important to pay attention to what is going on, both societally and in legal challenges, to see where this will land.

8:33And there are a number of state legislators who have introduced various bills to try to cut back on marriage equality. We haven't seen those get a lot of traction at this point. But again, it's something else to pay attention to. It always seems to me that it would be very difficult to take away same-sex marriage because you have these nearly 800 ,000 couples who've acted in reliance on the right to same-sex marriage. getting married, having children, sharing finances, etc. What would happen to all that if the Supreme Court took back the right to same-sex marriage? To take away marriage equality would be an administrative disaster in states and at the federal level.

9:19So it would be complicated and unfair in addition to, in my view, unconstitutional. At the same time, we know there are people who are committed to taking that away precisely. I would also say that even though access to abortion presents different issues, access to abortion as a part of reproductive health care has certainly been something that women have relied on for decades where they live or in states nearby. And people have ordered their lives around this, not in the same way as marriage, but it has certainly been an important form of reproductive health care that is now being denied in a number of states.

10:02So there's a set of challenges to access to health care, to access to relationship recognition that are continuing to be debated and have important implications for people who live throughout this country. Something that repeatedly comes up in discussions about same-sex marriage is that conservative Justice Clarence Thomas, in a concurring opinion in the Dobbs abortion case, said the justices should reconsider all the court's substantive due process precedents, specifically mentioning the cases involving same-sex marriage and contraception. Will you explain his position? The idea of substantive due process is that the U.S.

10:51Constitution protects Americans in our day-to-day lives from government interference with certain fundamental rights, including rights that are deeply recognized as part of individual autonomy, access to contraception, parental rights, certain other rights to sexual relationships between consenting adults and parents. for non-commercial purposes. And so Justice Thomas has long taken the position that the Constitution does not protect these rights that have long been considered fundamental, does not protect marriage equality, does not protect access to contraception, does not protect access to abortion.

11:33If there were more justices to take his position, that is not only with respect to abortion and marriage, but more generally sweeping off the table, any constitutional protections understood in these ways, we would be living in a very different country. And again, it's not to say that everything would change at once, because the absence of a substantive due process protection doesn't mean that states could not grant marriage equality or provide access to abortion. This is why even in a world where Dobbs exists, we have many states that protect the right of a woman to seek an abortion as part of her reproductive health care.

12:15But what it means is that if a state chooses to criminalize abortion or chooses to refuse to recognize same-sex couples' marriages, if Obergefell were to be overturned, then states could refuse to provide those protections. It's been noted that Thomas didn't mention the case of Loving v. Virginia, which struck down interracial marriage. Is there a difference in the legal analysis or a distinction there? Possibly. You know, when the Supreme Court struck down Virginia's law of criminalizing interracial marriages, the court recognized that part of the problem with that law was that it gave effect to white supremacy, gave effect to the view that white people were superior to people of color.

13:04So the court did two things. It recognized that the government should not interfere with people's fundamental right to marry by restricting the race of the person whom they could marry. But also the language of that ruling was in part tied deeply to the prohibition of race discrimination as a justification for that restriction. So interracial marriage would be analyzed differently somewhat from the right to same-sex couples marrying. But the underlying idea is the same in the sense of should the government be able to restrict who you can marry so long as that other person is a consenting adult who is not immediately related to you.

13:48Stay with me, Suzanne. Coming up next, another setback for transgender rights. The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions.

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16:31Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. This is Bloomberg. This is Bloomberg Law. with June Grosso from Bloomberg Radio. It's the 24th win for the Trump administration on the Supreme Court's emergency docket and the second blow to transgender rights from the conservative justices on the so-called shadow docket. In a vote down ideological lines, the court is allowing the Trump administration to go forward with requiring passports to be marked with the sex assigned at birth. This reverses the policy in place since 1992, which had allowed passports to reflect a person's gender identity.

17:21I've been talking to Professor Suzanne Goldberg of Columbia Law School. Suzanne, will you explain the change in policy by the Trump administration? For nearly 30 years, actually 33, and as Justice Jackson points out, across six presidential administrations, transgender Americans have been able to get U.S. passports with their gender marker that accurately matches their gender identity. So a transgender man can get M on his passport, and a transgender woman can get a F on her passport, which is important for many reasons, including so that the person looks like they match their passport. But from basically 1992 to 2010, there was an eligibility requirement related to a surgical transition that has changed over time.

18:13But the point is, for 33 years, this has been the same. On the first day of his administration, Donald Trump issued an executive order saying that transgender people are corrosive to the United States in so many words. He used the word corrosive and directing the State Department to no longer issue passports to people that would be consistent with their gender identity if they're transgender. And so the Trump executive order led the State Department to take two steps. First, to stop issuing passports to transgender people consistent with their gender identity, and second, to remove the X gender marker, which was an option for anyone who does not fit the M or the F or someone who doesn't want to share their gender identity with the U.S.

19:04government. So put into simple terms, the Trump administration changed policy on the first day of the administration and the State Department followed two days later to prevent transgender Americans from obtaining passports consistent with their gender identity. This was an unsigned order, and the conservative justice's very short explanation seems to me like it's ignoring the facts that were presented in the case. The justices said, displaying passport holders sex at birth no more offends equal protection principles than displaying their country of birth. In both cases, the government is merely attesting to historical fact without subjecting anyone to differential treatment.

19:49It is stunning because the plaintiffs in the case explained to the district court, which agreed, as did the Court of Appeals, that if you are a transgender man and you have a passport that says F on it, it does have real-world harmful consequences every time you have to show that passport to someone because the person receiving the passport may say, as has happened to some of the plaintiffs, you're using fraudulent documents because you don't appear to match your passport gender marker. So this has led to some of the plaintiffs being accused of fraud, one of the plaintiffs being strip searched, other plaintiffs facing all sorts of problems as they've tried to cross borders.

20:37So for one, the Supreme Court's kind of casual remark that this is as insignificant as somebody's sort of national origin or place of citizenship is just untrue. In addition, the country of birth is not anything that affects somebody when they're using their passport and passing through security. But the gender marker is used to check accuracy. And so even on its face, the Supreme Court's analysis is wrong. The Supreme Court's description, I can't really call it analysis. The Supreme Court's statement is wrong. And a dissent for Justice Jackson points that out as well. The court also found that the administration is likely to win on the merits and the administration faced irreparable injury.

21:23I'm not sure where the irreparable injury is, since this policy is a new one that's changing what's been in place. But the conservative justices have found irreparable injury in almost all of President Trump's emergency requests. There is no irreparable injury in the traditional way that courts look at irreparable harm. So let me explain. When a statute comes over from Congress and is challenged in the court, it is given a presumption of constitutionality. So the court assumes it's constitutional, but sometimes plaintiffs can show actually it's unconstitutional and the court will strike it down.

22:08And there's understood to be some arguable harm to government when a statute is put on hold. But when a government policy is put on hold, like an executive order or a preference of the president, that's a different situation. That is not entitled to the same presumption of constitutionality as a statute that has been passed by Congress. And the upshot is just saying, well, the government is irreparably harmed by not being able to put in place its desired passport policy is akin to saying the government is irreparably harmed whenever it is stopped from doing something that it would like to do. And that is akin to having no judicial review over government actions at all, at least not at this preliminary stage.

22:56So that's a very serious problem from a sort of basic approach to constitutional analysis of executive actions. Justice Jackson wrote that the court has once again paved the way for the immediate infliction of injury without adequate or really any justification. This is also a pattern of the court at this point, basically allowing the Trump administration anything it asked for on the emergency docket and saying, well, this is while litigation is pending. Yes, this is the 24th consecutive grant of emergency relief to the government. And this process of the Supreme Court staining rulings of lower courts, finding problems, constitutional or other problems with government policies, this phenomenon of the Supreme Court repeatedly saying, oh, we're going to put those lower court rulings on hold, has had the effect of basically giving the Trump administration a free pass to continue enforcing policies that, and taking actions that lower courts have held to be not only likely unconstitutional, but also causing irreparable harm to the people who have been affected.

24:14So this is certainly part of a larger trend. The striking thing about this case is that the harm to the individuals who are denied passports that accurately reflect their gender identity is stunningly clear. Another problem here is that the government is obligated anytime it changes a policy that collect information from the American people, the government is obligated under the Paperwork Reduction Act, which was passed by Congress, to spend 60 days collecting information and public comment on whether it can make this sort of a change. And of course, changing its passport rule two days after the president was inaugurated and issued his executive order is fully out of compliance with this law that is supposed to apply to all of the government's actions.

25:03As I mentioned, this order stays in place as a litigation blow continues. So how much of a blow is it to the rights of transgender people? This is a tremendous blow in terms of the human cost. One only has to think about the name plaintiff Ashton Orr, who needed to travel out of the country, needed a new passport. Ashton Orr is a man, he's a transgender man. The only passport he is able to get to cross borders has an F gender marker on it. That reveals Ashton to be transgender, not only as he crosses the border out of the United States, but as he crosses into other countries, possibly putting him in danger of harm from other governments and now as well as our own.

25:53The harms are very serious, very painful to individuals, and also are reflective of a broader harm to people who are not transgender, which is that the government can, for irrational reasons, possibly hostile reasons toward this group of people, or any group of people more generally, choose to withdraw a passport, right? choose to do any number of things that cause harm, and the Supreme Court is unwilling to say, hold on, government, the lower court has found a problem with this law or this new policy, and we need to hold while this case is being litigated. So there are real world problems, there are constitutional problems, there are traditional separation of power problems that we're seeing.

26:39In May, the Supreme Court allowed him to start discharging transgender members of the military. At oral arguments, this term, it appears that the conservatives will allow state laws that ban licensed counselors from using talk therapy to try to change a child's sexual orientation or gender identity. And there's another case coming up about whether states can ban transgender girls and women from competing for their schools on female athletic teams. It's hard to ignore that the court has been consistently ruling against transgender rights. Yeah, I mean, there has been a torrent of policies, you know, from the Trump administration and laws at the state level that restrict the lives or try to restrict the lives of transgender people in every imaginable way, from getting identity documents to using the bathroom, to participating fully at school, to serving the country in the military.

27:44And so far, the court, when these issues have been presented, the court has said it's okay to create this legal barrier, really like a legal burden that harms transgender people. In 2020, the court took a different tack. This involved an employment discrimination case. A transgender woman was fired from a role at a funeral home where she had served for many years. And she sued the employer saying it was sex discrimination that she was treated differently because of her sex being fired based on her sex, right, based on that she is transgender. And in that case, Bostock v. Clayton County, which also involved two other cases with sexual orientation discrimination at issue.

28:31In that case, the court said it is sex discrimination to fire a transgender person because there's no way to understand this other than they're being fired because of their sex. One of the big questions before the court is that case came under Title VII, which is a federal law that prohibits sex discrimination as well as other forms of discrimination in employment. And a question is whether the logic of understanding sex discrimination in that Bostock ruling from 2020 is going to carry over into these other areas, or will the court say, as it may appear to be inclined to do, oh, no, that might be sex discrimination, but this isn't.

29:12Well, we'll have two cases, at least this term, that will further illustrate how the court's dealing with transgender rights. Thanks so much for joining me, Suzanne. That's Professor Suzanne Goldberg of Columbia Law School. Coming up next, the second-in-command at the Justice Department talks about its war on judges. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On Public, you can now create AI agents that handle all these tasks on your behalf.

29:50Just describe what you want to do in plain English. like if the VIX hits 25, buy a put option on the S &P 500. Or if my cash balance goes above$20 ,000, move the excess into my direct index. You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market.

30:28Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. When you own your own business, you own every decision. Now own the card that rewards you for it. The Chase Sapphire Reserve for Business card brings the best Sapphire Reserve benefits to business owners who expect hardworking rewards. Designed to meet the needs of business owners at scale, this pay-in-full card elevates your travel experience and offers premium benefits and value toward business services that will take your business to the next level.