Gender and the Law Blog

Map Shows the Impact of Obergefell v Hodges Decision

"Equal Dignity": US Map Shows the Impact of Obergefell v Hodges Decision

"They ask for equal dignity in the eyes of the law," then-Supreme Court Justice Anthony Kennedy wrote 10 years ago, in the Obergefell v. Hodges majority opinion. "The Constitution grants them that right."

With those words, on June 26, 2015, same-sex marriage became legal in all U.S. states. The landmark 5-4 decision superseded what had been a patchwork of laws and court orders in which some states allowed gay marriages or same-sex civil unions, while others banned them and refused to recognize unions performed outside their borders.

"The right to marry is a fundamental right inherent in the liberty of the person," the Supreme Court ruled.

The dramatic shift was captured in a map NPR published in 2015, as the Supreme Court ruled that equal protections under the 14th Amendment require states to license and recognize same-sex marriages.***

In 2022, the Respect for Marriage Act became law, after gaining bipartisan support in Congress. The federal law redefines marriage as being "between two individuals," rather than a man and a woman. It also bars states from denying "any right or claim relating to out-of-state marriages on the basis of sex, race, ethnicity, or national origin."

Review of Gendered Liberty and the Puzzle of Constitutional Claims By Those Who Seek to Defy Gender Stereotypes

Leah Litman, Free to Be You But Not Me, JOTWELL, reviewing Laura Portuondo, Gendered Liberty, __ Geo. L.J. __ (forthcoming), available at SSRN. 

In Gendered Liberty, Prof. Laura Portuondo presents a doctrinal puzzle: While claims to individual liberty are in decline in some spaces, they are ascendant in others. As Portuondo describes things, constitutional law has become increasingly hostile to claims by people who seek to defy gendered stereotypes. That includes the women who, for whatever reason, do not want to become mothers when they are pregnant, as well as the women whose lives, health, or fertility would be in jeopardy if they became mothers. The Supreme Court overruled their claims to liberty in Dobbs v. Jackson Women’s Health Organization.

At the same time, however, the Court has embraced the liberty claims of people who seek to enforce gendered stereotypes (and thereby diminish the liberty of those who seek to defy them). Portuondo points to the Court’s decisions in Fulton v. City of Philadelphia and 303 Creative v. Elenis as examples of this phenomenon. Both cases allowed entities that objected to marriage equality to project their opposition to marriage equality onto the queer people who were defying gender stereotypes by marrying a person of the same sex. Portuondo also notes the rising tide of conscientious objector liberty claims to legal protections for the transgender community. In doing so, Portuondo persuasively debunks the Court’s insinuations (which were most apparent in 303 Creative) that regulation of conduct has “nothing to do with gender at all.”

Portuondo argues that a “gendered vision of liberty” explains the Court’s decisions. To make this claim, she first explores and rejects “reasons beyond the[] [Court’s] decisions” that could “justify th[e] result[s]” of the cases. As Portuondo explains, many of the alternative explanations or justifications boil down to a claim that liberty does not include protections for gendered conduct, a proposition she rejects.

SCOTUS in Mahmoud Relies on Yoder Precedent to Require Religious Exemptions to Gender Identity Material in Public Schools

The case is Mahmoud v. Taylor.

CBS News, Supreme Court Sides with Parents who Objected to Kids' Books on Gender Identity, Sexuality

The Supreme Court on Friday ruled in favor of a group of Maryland parents who challenged their school district's decision to deny them the ability to opt their elementary-aged children out of instruction featuring storybooks that address gender identity and sexual orientation.

The high court said in a 6-3 decision in the case of Mahmoud v. Taylor that the government burdens parents' religious exercise when it requires their children to participate in instruction that violates the families' religious beliefs. Justice Samuel Alito authored the majority opinion, with the three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — in dissent.

The court's conservative majority said that the parents who brought the case are entitled to a preliminary injunction while their lawsuits proceed. The high court ordered the board to notify parents in advance when one of the story books at issue in the case will be used, and allow them to have their kids excused from the instruction.

"[W]e hold that the Board's introduction of the 'LGBTQ+-inclusive' storybooks — combined with its decision to withhold notice to parents and to forbid opt outs — substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise" that the court has previously ruled is unacceptable, Alito wrote.

Debra Cassens Weis, ABA J., SCOTUS Rules for Parents with Religious Objections to LGBTQ Storybooks in Schools

For an article aligning more with the dissent's view in Mahmoud, see Chad Flanders, Is Wisconsin v. Yoder Limited to its Facts?, 16 ConLawNOW 23 (2025).

SCOTUS Revives Archaic Sex Discrimination Case of Geduldig Holding that Biology is not Gender Classification

Leah Litman, The Archaic Sex-Discrimination Case the Supreme Court Is Reviving, Atlantic

The Supreme Court’s decision last week in United States v. Skrmetti will have direct consequences for many transgender minors. Tennessee’s law, which the Court upheld, prohibits people under age 18 from accessing certain kinds of treatment, such as hormones and puberty blockers, to treat gender dysphoria (the condition in which an individual’s sex does not align with their gender identity). But the consequences will be indirect as well, and reach beyond the realm of transgender rights—potentially representing a setback for gender equality and the enforcement of antidiscrimination law.

The majority opinion, written by Chief Justice John Roberts and joined by the five other Republican appointees, revives an outdated case, Geduldig v. Aiello, that blessed discrimination based on archaic thinking. If the Republican appointees plan to revive this older case, they will take the law and the country back to a time when the government used the existence of “biological differences” between men and women to excuse all kinds of discrimination against women. The Court’s logic underscores the extent to which the ideology and methodology of the conservative justices threaten many of the hard-fought civil-rights protections of the 20th century.

SCOTUS Rules South Carolina Planned Parenthood Cannot Sue for Defunding as No Individual Enforcement Right for Spending Powers

The case is Medina v. Planned Parenthood, 606 U.S. ___ (2025).

Adam Liptak, NYT, Supreme Court Rules Planned Parenthood Cannot Sue Over S. Carolina Defunding Effort

The Supreme Court ruled on Thursday that Planned Parenthood and one of its patients cannot sue South Carolina over its effort to deny funding to the group, reasoning that the relevant federal statute does not authorize such suits.

The vote was 6 to 3, with the court’s three liberal members in dissent.

In 2018, Gov. Henry McMaster of South Carolina, a Republican, ordered state officials to deny Medicaid funds to Planned Parenthood, saying that “payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life.”

But abortion was mentioned only in passing in the decision, and the patient in the case had sought access to contraception, not an abortion.

Instead, the justices focused on whether the plaintiffs were entitled to sue to enforce part of the Medicaid law, which gives federal money to states to provide medical care for poor people.

Michele Goodwin, The Supreme Court Doesn’t Really Care About Originalism. ‘Medina v. Planned Parenthood’ Just Proved It

The Supreme Court delivered a stinging blow for basic healthcare on Thursday: In a 6-3 decision, along ideological lines, the Court allowed a harmful executive order from South Carolina Gov. Henry McMaster (R), originally signed in 2018, to stand. The executive order—part of an ongoing attack on reproductive freedom—allowed denying Medicaid funding to providers that deliver abortion services. The EO took aim at the state’s two Planned Parenthood clinics.***

The case is part of the ongoing attack on reproductive freedom, which predates even Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. 

For decades, antiabortion advocates and elected officials have used targeted regulations of abortion providers—otherwise known as TRAP laws—to eliminate abortion through indirect means, creating financial ultimatums: Stop providing abortion services in order to receive funding for breast cancer screenings, prenatal care, postnatal care, ovarian cancer screenings and pregnancy testing for poor women … or lose critical funding. Both leave poor women in a lurch.

This Supreme Court decision weaponizes poor women’s poverty against them.

Ian Millhiser, Vox, The Supreme Court's Disastrous New Abortion Decision, Explained

On Thursday, however, the Republican justices ruled, in Medina v. Planned Parenthood, that Medicaid patients may not choose their health provider. And then they went much further. Thursday’s decision radically reorders all of federal Medicaid law, rendering much of it unenforceable. Medina could prove to be one of the most consequential health care decisions of the last several years, and one of the deadliest, as it raises a cloud of doubt over countless laws requiring that certain people receive health coverage, as well as laws ensuring that they will receive a certain quality of care.

 

SCOTUS Decides Skrmetti Case Holding that Trans Discrimination is not Sex-Based Discrimination Under Equal Protection

The decision is here: US v. Skrmetti, 605 U.S. ___ (2025).

Held. Tennessee’s law prohibiting certain medical treatments for transgender minors is not subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment and satisfies rational basis review. 

Not subject to heightened scrutiny because it does not classify on any bases that warrant heightened review, as is not a sex-based classification.

Guardian, US Supreme Court Upholds Tennessee on Youth Gender-Affirming Care

Slate, John Roberts’ Anti-Trans Opinion Is a Garbled Mess. It’s Easy to See Why.

MSNBC, What the Skrmetti Dissents on Gender-Affirming Care Say About the Supreme Court

See also NYT, How the Transgender Movement Bet on the Supreme Court and Lost

SCOTUS Rules that Title VII Standard for Reverse Discrimination Suits is the Same as Minority Discrimination Cases

I weigh in here on the recent unanimous SCOTUS ruling in Ames v. OH Dept of Youth Services on applying the same legal standard for majority as minority plaintiff discrimination cases. With insights also from law professor Joan Williams and other legal experts.

Supreme Court Ruling May Affect Akron-Area Reverse Discrimination Suits, SignalAkron

*** Thursday, the U.S. Supreme Court potentially made it easier for people like Tullis to claim discrimination. The justices unanimously struck down a requirement in Ohio and some other states that members of the majority meet a higher burden of proof to show discrimination. 

The case was brought by an Akron-area woman who said she was passed over for a job at the Ohio Department of Youth Services because she was straight. ***

The ruling could make so-called reverse discrimination cases easier to get through the courts. And although the Supreme Court’s decision was not related to national conversations about the value of diversity in workplaces, the case also highlights the fact that recently, members of the majority have increasingly maintained that they have been disadvantaged because of their race, gender, sexuality or other reasons related to their majority identity.

Not only are these cases becoming more common, said Tracy Thomas, the Seiberling Chair of Constitutional Law at the University of Akron School of Law, they are becoming more successful.

She said that courts have become more accommodating of discrimination claims by members of the majority. The shift comes on the heels of a national political movement against equity and inclusion programs that Thomas said has been building for some time.

“When historically excluded groups begin to share that power, then power pushes back,” Thomas said. “They don’t see their own privilege or how it’s operating at other people’s expense.”***

Thomas said Tullis’ framing of the case implied that only lucky or favored women were getting jobs like his. It’s part of a “historic backlash” to the removal of barriers that made it more difficult for minorities to enter — and succeed in — the workplace. Such changes are often presented as matters of fairness, she said.

She said she’s concerned that because of the Ames ruling, some employers will overcorrect, and only hire or promote minority candidates if they’re exponentially more qualified than majority candidates — a dynamic minority candidates have long had to contend with to prove their worth. That, Thomas said, means the results of the case could be more problematic than the ruling itself suggests. 

“Nobody likes the idea that decisions are not based on merit,” she said.

SCOTUS Unanimously Rules in Reverse Discrimination Case to Reject Heightened Standard for Majority Group Claims

Ames v. Ohio Department of Youth Services (6/5/2025)  Justice Jackson for the majority opinion for a unanimous Court.

Key takeaways:

• The Sixth Circuit’s “background circumstances” rule—which requires members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim—cannot be squared with the text of Title VII or the Court’s precedents.
• Petitioner Marlean Ames, a heterosexual woman, has worked for the Ohio Department of Youth Services in various roles since 2004. In 2019, the agency interviewed Ames for a new management position but ultimately hired another candidate—a lesbian woman. The agency subsequently demoted Ames from her role as a program administrator
  and later hired a gay man to fill that role. Ames then filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation.
• The District Court granted summary judgment to the agency, and the Sixth Circuit affirmed. The courts below analyzed Ames’s claims under McDonnell Douglas Corp. v. Green, 411 U. S. 792, which sets forth the traditional framework for evaluating disparate treatment claims that rest on circumstantial evidence. At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. Like the District Court, the Sixth Circuit held that Ames had failed to meet her prima facie burden because she had not shown “ ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” 87 F. 4th 822, 825. The court reasoned that Ames, as a straight woman, was required to make this showing “in addition to the usual ones for establishing a prima facie case.”
• Justice Thomas (joined by Gorsuch) writes a concurrence rejecting judge made rules and doctrines broadly (!!). "I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts." He would reject the entirety of the classic McDonnell Douglas three part test for establishing discriminatory motive. "This rule is a product of improper judicial lawmaking."

SCOTUS Unanimously Rules in Reverse Discrimination Case to Reject Heightened Standard for Majority Group Claims

Ames v. Ohio Department of Youth Services (6/5/2025)  Justice Jackson for the majority opinion for a unanimous Court.

Key takeaways:

• The Sixth Circuit’s “background circumstances” rule—which requires members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim—cannot be squared with the text of Title VII or the Court’s precedents.
• Petitioner Marlean Ames, a heterosexual woman, has worked for the Ohio Department of Youth Services in various roles since 2004. In 2019, the agency interviewed Ames for a new management position but ultimately hired another candidate—a lesbian woman. The agency subsequently demoted Ames from her role as a program administrator
  and later hired a gay man to fill that role. Ames then filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation.
• The District Court granted summary judgment to the agency, and the Sixth Circuit affirmed. The courts below analyzed Ames’s claims under McDonnell Douglas Corp. v. Green, 411 U. S. 792, which sets forth the traditional framework for evaluating disparate treatment claims that rest on circumstantial evidence. At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. Like the District
  Court, the Sixth Circuit held that Ames had failed to meet her prima facie burden because she had not shown “ ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” 87 F. 4th 822, 825. The court reasoned that Ames, as a straight woman, was required to make
  this showing “in addition to the usual ones for establishing a prima facie case.”
• Justice Thomas (joined by Gorsuch) writes a concurrence rejecting judge made rules and doctrines broadly (!!). "I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts."

The State Action Doctrine as a Barrier to LGBTQ+ Civil Rights

Anibal Rosario Lebron, Between the Pessimism of State Action and the Optimism of SSOGIE Equality,  
53 SW. L. REV.  303 (2025)

This article critically examines the limitations imposed by the state action doctrine on advancing sex, sexual orientation, and gender identity and expression (SSOGIE) equality in the United States. It argues that the state action doctrine, which restricts constitutional claims to actions by the State, obscures the real dynamics of power and rights violations between private actors. By forcing a vertical framework that pits individuals against the State rather than addressing horizontal conflicts between private parties, the doctrine has enabled the weaponization of civil liberties, especially the First Amendment, to shield discriminatory conduct and stall progress on LGBTQ+ and reproductive rights. Through close analysis of U.S. Supreme Court decisions such as 303 Creative v. Elenis, Masterpiece Cakeshop, and NIFLA v. Becerra, the article illustrates how the Court’s application of the state doctrine distorts judicial analysis to insulate private discrimination from judicial review. In response, the article advocates for adopting a , which recognizes constitutional rights as actionable between private parties. Drawing on examples from jurisdictions like Colombia, Puerto Rico, and California, the article underscores the potential of a subnational legal reform and constitutional innovation to revitalize SSOGIE equality by adopting the horizontal approach widely by the states.

Call for Papers SCOTUS Blockbuster Cases 2025

Call for Papers

 SCOTUS Blockbuster Cases 2025

Written Symposium

The Center for Constitutional Law at Akron

The Center for Constitutional Law at Akron Law seeks submission of essays to publish as part of a written symposium in its journal ConLawNOW. The summer symposium collectively examines the 2025 Supreme Court Blockbuster Cases for a wide view of the most recent decisions of the Court. The symposium consists of a collection of written articles, and does not include presentations. As always, the end of the Supreme Court term promises big reveals, important takeaways, and much content for consideration. This written symposium seeks to bring together scholars commenting on the new cases—evaluating opinions, discerning trends, and offering critiques and insights on the developing law—that can influence the interpretation and application of these new decisions. Topics discussed in the essays should be related to any case from the current U.S. Supreme Court Term (October 2024 to July 2025).

ConLawNOW is a faculty edited, open-access, online journal of the Center for Constitutional Law at Akron. The Center is one of four national centers established by Congress on the bicentennial of the U.S. Constitution to support legal research and public education on constitutional issues. Faculty editors at ConLawNOW select the articles and copyedit the final manuscript, providing a level of professional expertise and peer review for law journal publication.

All papers for the SCOTUS 2025 Symposium should be submitted no later than August 25, 2025. Papers may be submitted earlier, as articles will be published on a rolling basis. Essays for the symposium should be 3,000 to 5,000 words. Papers should be polished papers finalized with all copyediting and cite checking completed. Submit essays to the editors of ConLawNOW at [email protected]. Selection will then be determined by the faculty editorial board with a view to publishing a wide range and volume of papers. Authors may expect that their essays will publish within four weeks of acceptance, as ConLawNOW generally publishes on an expedited schedule to facilitate dissemination of scholarly ideas. Questions about the symposium may be directed to Professor Tracy Thomas, Managing Editor, ConLawNOW, at [email protected].

Center for Con Law's Symposium Issue on Women's Leadership in Law and Politics

The Center for Constitutional at Akron has published its annual symposium issue. This year an interdisciplinary program featuring legal scholars and political scientists explored the question of women's leadership in law and politics. Topics included women judges, SCOTUS nominations, gender disparities in Congressional witnesses, gendered campaign spending, and women's elected path.

Articles

Making Their Mark: Women Judges on the U.S. Courts of Appeals
Laura P. Moyer, John Szmer, Susan Haire, and Robert Christensen

Women Judges and Wikipedia
Sally Kenney

Pipelines & Presidential Candidates: The Dynamics of Women Running for Public Office in Ohio
Irene Jayapandian and Barbara Palmer

Is There a Gender Gap in Campaign Spending Strategies?
Paul S. Herrnson, Charles Hunt, and Jaclyn Kettler

Project 2025 and Due Process After Dobbs
Tracy Turner

Black Women are Supreme: An Empirical Examination of Black Women's Evaluations of Ketanji Brown Jackson
Christine M. Slaughter, Camille Burge-Hicks, and Nadia E. Brown

Echoes of Exclusion: The Underrepresentation of Women in Congressional Testimony and Its Consequences for Judicial Decision-Making
Caroline L. Bruckner, Elizabeth Keith, Karen O'Connor, and Collin A. Coil

The Embodied Nature of Representation: Reframing "Best Candidate" Narratives in Supreme Court Nominations
Susan Tanner

Comparative Lessons for Enhancing Representation in the U.S. Judiciary - and Countering Democratic Decline
Shruti Rana

Coming soon:

It’s Not About Children: How Gender Resentment Shapes Public Opinion on Abortion in the United States, Nicole Kalaf-Hughes & Debra Leiter

Reflection and Reform: A Case Study of Leadership Models in the Reproductive Rights and Justice Movement, Jamie Abrams 

Contingent Constitutional Rights, Paula Monopoli                                                                                                                                 

Jury Duty and American Women’s Struggle for Full Citizenship, Nancy Marder

Reframing "Best Candidate" Narratives in Supreme Court Nominations

Susan Tanner, The Embodied Nature of Representation: Reframing "Best Candidate" Narratives in Supreme Court Nominations, 16 ConLawNOW 201 (2025)

This Essay explores how discourse surrounding Supreme Court nominations reflects broader societal debates about merit, representation, and inclusion. Through analysis of the controversy surrounding President Biden’s commitment to nominate a Black woman to the Supreme Court, this piece examines three interconnected themes: the embodied nature of representation, the relationship between diversity and judicial legitimacy, and the problematic nature of “best candidate” narratives. It challenges traditional conceptions of merit in judicial nominations and argues for a more nuanced understanding that recognizes the value of diverse lived experiences on the bench.

The Underrepresentation of Women in Congressional Testimony and its Consequences for Judicial Decision-Making

Caroline L. Bruckner, Elizabeth A. Keith, Karen O'Connor & Collin Coil, Echoes of Exclusion: The Underrepresentation of Women in Congressional Testimony and its Consequences for Judicial Decision-Making, 16 ConLawNOW 187 (2025).

Congressional hearing witnesses play a major role in the legislative process, providing information to committees to assist members and staff in crafting legislation. Recently, there has been increasing focus on the impact of congressional witnesses on legislative outcomes, executive implementation of federal statutes, and corresponding judicial decisions. This has raised questions as to the extent to which the underrepresentation of women and other marginalized groups as congressional witnesses can be measured and how their lack of representation translates to inequitable outcomes across all branches of government. This work explores the widespread use of congressional witness testimony in recent U.S. Supreme Court opinions, reiterating that witnesses play a significant role in establishing the legislative history, which, in turn, is later relied upon in judicial decision making. In this Article, we quantify the references to congressional witnesses in U.S. Supreme Court opinions using a publicly available dataset of opinions dating from 1789 through 2020. Although not surprising given our past work, we find that while the Court regularly references congressional testimony in its opinions women as congressional witnesses are demonstrably underrepresented in these opinions. We argue that the ongoing underrepresentation of women as congressional witnesses will be more consequential to judicial outcomes following the Court’s decision in Loper Bright Enterprises v.
Raimondo, overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Identity and Procedural Subordination in SCOTUS' LGBTQ Religious Exemption Cases

Kyle Velte, Identity and Procedural Subordination in LGBTQ Religious Exemption Cases  

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis, the U.S. Supreme Court ruled in favor of the conservative Christian claimants, holding that they must be excused from complying with validly enacted provisions prohibiting discrimination based on sexual orientation and gender identity (“SOGI”) under the First Amendment’s Free Exercise or Free Speech clause. 

Reactions to these cases from pro-LGBTQ scholars, commentators, and advocacy organizations have varied. Harsh criticism of the Court’s legal reasoning has issued from many legal scholars and commentators. Others have sounded the alarm about the likely harmful consequences of these decisions in the future, not only for LGBTQ people but for members of other marginalized communities. Still others, including myself, have situated these cases within the larger context of the emerging (and quickly strengthening) white Christian nationalism movement. 

In contrast, many national LGBTQ rights organizations have engaged in what I have characterized as the Narrowness Narrative. I contend that by describing the outcome of these cases as narrow, the Narrowness Narrative simultaneously provides false reassurances about the impact of these decisions while concealing a grim reality—the Court’s growing solicitude for the white Christian nationalism movement. The cases addressed in this article demonstrates the Court’s promotion of white Christian nationalism interests over the interests of marginalized “outgroup” communities, including the LGBTQ community. This trend is even clearer when these cases are considered alongside a number of other cases decided since the October 2021 term. 

This article proposes that there is value in viewing these cases as turning on procedural as opposed to substantive law. As proceduralist scholars have made clear for decades, “scholars who focus exclusively on the importance of substantive rulings frequently miss or overlook the equally important context afforded by procedural principles. Procedure scholars appreciate that the procedural framework in which substantive rights are pursued often plays a determinative role in ultimate outcomes.” As such, these scholars center procedure as “a driving force behind how the civil justice system” works and how it acts as a lever of power.

There is little dispute that the Court punted on the legal question presented in Masterpiece Cakeshop and Fulton—whether the First Amendment’s Free Exercise Clause exempts those with sincerely held religious beliefs about SOGI from complying with antidiscrimination provisions. While the Court claimed to reach the substantive legal question presented in 303 Creative, it did so in a cramped and contrived manner relying on procedurally-grounded stipulations of the parties, to which the Court was not bound but nonetheless to which it determined to be beholden. 

If the Court held in favor of the exemption seekers without answering the substantive legal question, or by artificially answering the substantive legal question, how did it reach its results? I contend that the Court achieved its preferred outcome through procedural mechanisms, though the prominence of those procedural moves ranges from clear to opaque to obscured among the three cases. Moreover, I assert that these procedural moves hinged on identity. These cases pitted the identity-based claims of the conservative Christian exemption seekers against the identity-based protections offered by antidiscrimination provisions, which in these cases were SOGI-based identity protections afforded to the beneficiaries of antidiscrimination law—LGBTQ customers, would-be foster parents, and foster children.

Thus, the procedural moves in these cases smack of an outcome-driven approach to resolving critically important questions about the proper balance of antidiscrimination protections (equality) and religious objections thereto (liberty) in a way that further proves the points of the procedural justice scholars. I contend that this amounts to the Court’s procedural subordination of LGBTQ people in these cases. In doing so, the Court has created and identity-based hierarchy vis-à-vis antidiscrimination law. 

Brenda Gibson on "Affirmative Reaction: The Blueprint for Diversity and Inclusion in the Legal Profession After SFFA"

Brenda Gibson has published Affirmative Reaction: The Blueprint for Diversity and Inclusion in the Legal Profession After SFFA in Volume 104 of the Boston Law Review. The abstract is excerpted here: 

This Article is both a descriptive and prescriptive authority on the efforts of the legal profession’s ongoing attempts to achieve diversity and inclusion. It lays bare the history of the legal profession’s unsuccessful diversity and inclusion efforts and explores the efficacy and success of some of the solutions that the legal profession has crafted to turn the tide on implicit bias and the resulting lack of diversity and inclusion in the profession. Most relevantly for this new post-affirmative action era, I set out a blueprint of sorts for the legal profession that will incentivize Big Law and others who have not figured out why diversity makes sense for the legal profession’s bottom line—monetarily and morally speaking. This is the Article that brings to light the possibilities when the legal profession recognizes its most important commodity—its human capital, both the lawyers and their clients.

 

Part I of the Article begins with a discussion about the difficulties surrounding the language of diversity, which has impacted attempts to address its absence in so many of our institutions and organizations, especially the legal profession. Part II details some of the solutions that have legal institutions have traditionally employed to address the lack of diversity in the profession and some of the impediments preventing those solutions from being successful. Also, Part II discusses the business and medical professions that seemingly have been more successful in incentivizing their educational institutions and professionals to engage in diversity and inclusion efforts. Turning to the more prescriptive part(s) of the Article, Part III discusses the LSAT and bar exam, and the roles they play as gateways to the profession, as well as some current trends that may make these exams less of an impediment to diversity and inclusion in the legal profession going forward. Finally, Part IV explains the role that human relationships can play in addressing the lack of diversity and inclusion in the legal profession—that being the covert racism—which is the most prevalent form of racism in society today. Included in this part of the Article is a discussion about the importance of incentivizing members of the legal profession to engage in cross-racial, -cultural, and -gender mentorships, sponsorships, as well as allyships to address this intractable problem, thereby leveraging the profession’s human capital in ways that have never been done effectively. 

Protecting the Anti-Oppression Legacy of Obergefell After Dobbs

Tracy L. Turner, Protecting the Anti-Oppression Legacy of Obergefell After Dobbs, 97 St. John’s Law Review (2023)

The continued vitality of other landmark substantive due process cases after the reversal of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization is of concern to many. In particular, fear of reversal of the right to marry recognized in Obergefell v. Hodges has led to federal protective legislation. However, more is at stake than merely ensuring against further reversals of recognized rights. On the surface, Obergefell recognized a right to personal autonomy under fundamental rights analysis, a broad right that is vulnerable to criticisms of judicial policymaking. However, the heart of its analysis was a recognition that the Court’s prior focus on history and tradition as evidence of a right’s fundamental nature is faulty when history supports a group’s persecution rather than its rights. Justice Kennedy introduced an alternative approach to due process that imports principles of equity to invalidate laws that oppress individuals based on their sexual orientation. Dobbs failed to apply this alternative analysis and therefore risks letting this important innovation slip away unnoticed, which has wide-ranging implications including for challenges to recently enacted LGBTQ+ curriculum and healthcare access limitations.

This article bolsters Justice Kennedy’s approach in a few novel ways. First, it explains the gaps in fundamental rights and equal protection doctrine that Justice Kennedy’s innovation was needed to fill. Second, the article builds a structured framework from Obergefell that can address concerns about judicial policymaking. Third, the article grounds Justice Kennedy’s analysis in textualist and originalist arguments.

Why Gender Bias in College Admissions Still Favors Men

Beyond Affirmative Action: Why Gender Bias in College Admissions Still Favors Men

The recent Supreme Court ruling striking down affirmative action in college admissions was heralded as a victory for “merit-based” selection. The ruling has, however, left an implicit discriminatory practice intact: Male applicants continue to be prioritized over female applicants when needed to balance out the student population. This is no coincidence. It’s the result of a deeply ingrained, albeit often unacknowledged, bias in the admissions process that dates back decades.

Title IX—legislation that prohibits sex-based discrimination in any federally funded education program or activity—was introduced in 1972, a time when women faced markedly higher expectations than men for admission to universities, if they were permitted to attend at all. At the time the legislation was proposed, Yale capped female enrollment at only 250 in their first-year undergraduate class, accepting 1000 men, and the Cornell School of Agriculture required women to have an SAT score of at least 30 to 40 points higher than the average male admit. Universities feared that by accepting more women, their alumni donations would decrease as would their academic standards.***

Today, the impacts of this exemption go largely unnoticed but are widely practiced. Coeducational private institutions continue to prefer and admit a relatively equal ratio of male to female students. On paper, this seems equitable. In reality, it is troubling that the ratio is not budging when women are consistently outperforming men in secondary schools. Since the 1970s women have outnumbered men in gifted and talented programs, women are around 25 percent more likely than men to participate in Advanced Placement (AP) classes, and female students on average have consistently higher grade point averages.

Moreover, more women are applying to and enrolling in college to begin with. In 2021, 8.9 million women pursued college degrees as opposed to 6.5 million men, with female students making up 58 percent of the undergraduate population. Some universities reflect this statistic. Women make up 58.5 percent of Oberlin College, 61.4 percent of Tulane University, 57.8 percent of the University of Georgia, and 60.5 percent of the University of California Los Angeles (UCLA), to name a few. For many, it’s a crisis, and for others, it’s dryly ironic.

Is it that universities such as Dartmouth, whose alumni once begged, “For God’s sake, for Dartmouth’s sake, and for everyone’s sake, keep the damned women out,” are again discriminating against women, this time by practicing affirmative action for men?

Student Petitions SCOTUS for Cert to Uphold Right to Wear T-Shirt Saying "There are Only Two Genders."

USA Today, Student Takes School Ban on "Two Genders" T-Shirt to Supreme Court

As the United States waged war in Vietnam in the 1960s, the Supreme Court said a Des Moines high school could not prevent students from wearing black armbands in support of a truce.

But as schools fought decades later to discourage the use of illegal drugs in the 21st century, the high court said a student did not have a First Amendment right to hold up a banner with the message "Bong Hits 4 Jesus.”

Now, as the debate over transgender rights has come to the forefront in the culture wars, a Massachusetts teenager wants the Supreme Court to say his middle school was wrong to prevent him from wearing a T-shirt stating, in all caps, “THERE ARE ONLY TWO GENDERS.”

The court could decide later this month whether it will hear the appeal. The decision will come as the Trump administration has taken a raft of actions targeting transgender soldiers, athletes and minors as he aims to fulfill his campaign promise of ending "transgender insanity."

On his first day in office, Trump signed an executive order declaring that only two sexes, male and female, are recognized by the federal government.

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The Boston-based 1st U.S. Circuit Court of Appeals sided with the school, finding it was reasonable to conclude the messaging could be harmful.

Judge David Barron wrote for a three-judge panel that Liam's shirt was different from the armbands that the Supreme Court allowed during the Vietnam War in Tinker v. Des Moines Independent Community School District because the black bands did not refer to anyone's personal characteristics.

 

SCOTUS to Hear Case of Reverse Discrimination Alleged by White Straight Woman

White, Heterosexual Woman Twice Replaced by Gay Co-Workers to Get Supreme Court Hearing, Washington Times

The case is Ames v. Ohio Dept of Youth Services

The question presented is: Does a plaintiff who belongs to a majority group need to demonstrate “background circumstances suggesting that the defendant is the unusual employer who discriminates against the majority” in order to establish a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964?