Equality On Trial

Prop8TrialTracker.com spoke with GLAD’s Jennifer Levi at Netroots Nation 2012

July 3, 2012

Marriage equality

By Scottie Thomaston

At Netroots Nation 2012, (and later) I had the chance to talk to Jennifer Levi, staff attorney at Gay and Lesbian Advocates and Defenders (GLAD). Levi heads up the Transgender Rights Project at GLAD and currently has a book out, Transgender Family Law: A Guide to Effective Advocacy. Below is our discussion.

1. The First Circuit Court of Appeals just struck down DOMA, and the opinion was written by Judge Michael Boudin, for whom you clerked. Can you talk a little bit about that and about the idea of how important visibility is, if you think that matters? The famous story is of course the story about Bowers v. Hardwick: Justice Powell said that he didn’t believe he had ever met a homosexual, and he said that to a clerk who is gay. Powell voted with the majority in Bowers, but then later said he regretted his vote.

I think being out and visible is exceedingly important especially as a lawyer and a social justice advocate. Judges interpret the law but are also subject to and impacted by laws. Social and cultural contexts impact everyone, judges included. I’m proud to have clerked for Judge Boudin and, if my being out in any way, positively influences anyone, I’d be delighted.

See more below the fold…

2. Is it better for the Prop 8 case or DOMA to go first in terms of legal strategy and building the foundation to end up with the legal rights we are entitled to? My co-writer at Prop 8 Trial Tracker is currently posting a series on this question and we’re curious what your thoughts are.

I really don’t have a strong view on this. The Prop 8 case could be construed broadly or narrowly and, either way, I think presents a strong equal protection challenge to exclusionary marriage laws. The DOMA case is more narrowly focused on federal discrimination and also presents a strong equal protection challenge.

3. Is it better for the Supreme Court to take up the Perry (Prop 8 ) case or to leave it alone and just let it stand in the Ninth Circuit? And what is your definition of “better” in this situation?

The best and just outcome is for the California exclusionary marriage law to fall, however that happens.

4. This one’s a three-parter: Is there a DOMA case you would prefer to go to the Supreme Court for review out of the 10 or so currently out there? Does it matter? And if it matters, why does it?

The Gill case is the farthest along at this point and the First Circuit has essentially asked the Supremes to resolve it. It presents all the essential elements to a challenge of DOMA. Individuals and couples are being hurt daily because of DOMA. The sooner it gets struck down, the better.

5 What do you think of Justice Kagan and Justice Sotomayor?

I think very highly of both of them. I think they are strong jurists who, I believe, have a clear sense of justice and the constitutional limits on discrimination.

6. Regarding Section 2 of DOMA (not at issue in any DOMA case as yet), isn’t that something that we’re going to have to address at some point? If Section 3 is struck down, where does that leave us with Section 2? It still stands, and states don’t have to recognize other states’ marriages between gay couples. Do you foresee more lawsuits being filed after DOMA is struck down asking for the courts to make states recognize all valid marriages?

I appreciate the question but am pretty focused on Section 3 at the moment.

7. Along the same line, do you think we could get to a scenario where, say, Texas wouldn’t officiate gay weddings but would allow gay couples to be considered married in the state if they were married elsewhere? Or is that the last tenet of inequality that will fall when it comes to marriage equality?

Anything is possible in this crazy patchwork quilt of marriage equality that we have created. Honestly, if you asked me in the 90s if we could have a system where gay couples get the benefits of marriage but not the name or state, I would have thought that was an absurd idea.

8. If Perry isn’t taken up and it’s limited to California, what sort of effect could the Ninth Circuit’s reasoning have on other states in the future, particularly those under its jurisdiction? Obviously, it wouldn’t be controlling precedent, but could it still have some sort of effect in terms of being cited?

Yes, I think it could be influential just as Romer v. Evans has been influential in far more significant ways than just in factually analogous situations.

9. Also it would be interesting to get your thoughts on the level of scrutiny issue as well as the suspect classification issue. Should gays be a suspect class? And if so, when do you think we’ll finally get there? What’s it going to take?

I think that gays should be a suspect class under traditional equal protection jurisprudence. Clearly there has been a history of discrimination, the group lacks political power, the characteristic is unrelated to one’s ability to contribute, and whether or not it is an immutable characteristic, it’s the kind of characteristic so central to identity that one should not have to change it. On the other hand, the court seems to be moving away from classical equal protection analysis and traditional tiered scrutiny (see Romer and Lawrence), so regardless of the level of scrutiny, exclusionary laws like DOMA and marriage exclusions should fail.

10. Along the same line, do you think either of the two challenges that are furthest along (DOMA/Prop 8 ) will provide a significant opportunity for SCOTUS to address the suspect classification/level of scrutiny issue, or do you think we need a better case? Apart from that, do you think they will address it?

I don’t think it’s about having a better case. I think it’s about the court evolving in the way it thinks about tiered review both under equal protection and substantive due process.

11. As you are probably aware, the National Organization for Marriage has been actively trying to “drive a wedge between gays and blacks”, as they say in a leaked memo. There has been important progress and a lot of steps have been taken to reach out between the two minorities (North Carolina is the perfect example: the NAACP went all-out against Amendment 1 there, doing radio shows and ads and engaging people to vote against it. There was phenomenal help and outreach. Then later, LGBT organizations protested “stop-and-frisk” in New York. That was also excellent outreach.) My question is do you foresee more of these types of outreach, but instead of political issues, maybe outreach involving legal issues? Do you think, for example that LGBT legal organizations might consider filing an amicus brief in the affirmative action Fisher case coming before the Supreme Court? Or in the Voting Rights Act case(s)? Importantly on that note, vote suppression is something that’s also used against the LGBT community – the Williams Institute report confirms the suppression of votes of specifically people who are transgender. So particularly in that case, do you think it would be beneficial to have LGBT legal organizations providing support on that front?

I think collaborative work across all of the groups whose mission is social justice is good for the evolution of jurisprudence and good for the community. I hope to see more of it happening.

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