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equal protection

Defense Secretary Puts President Trump’s Transgender Ban on Hold

In the wake of President Donald Trump's proclamation that openly transgender individuals be discharged from the military, in addition to the lawsuits, there has been some pushback from an unexpected source: the Secretary of Defense, General James Mattis. After sources reported that the general was appalled by the president's proclamation, soon after, he came out with a plan that effectively puts the ban on hold. While socially, and politically, transgender rights are a polarizing and controversial issue, it may not be possible to read anything more than prudence into Mattis's actions. Making a sweeping change like this to the military requires careful planning and assessment. What's Mattis's Hold Up? The general, reportedly, has instituted the hold on implementing the newest ban in order to study the effects and strategically plan how to actually do it (and potentially even whether to do it at all). Although the president, in a series of Tweets, claimed to have met with his generals prior to implementing the ban, no general has corroborated this claim. As such, not only was the general caught off guard, but the new policy's effects had not been studied prior to the implementation. While it may be too soon for those on either side of this issue to celebrate, LGBT advocates are pleased that there is at least some relief from the abruptly announced policy that would have uprooted many people's lives. Constitutional Challenges and Civil Rights Laws The lawsuit by the ACLU that challenges the transgender military ban argues that there is no military basis for the ban. According to the ACLU's complaint, "The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly."The Trump administration also faces a lawsuit from Lambda Legal that challenges the constitutionality of the transgender ban. Lambda Legal's lawsuit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification."Although the new administration has taken a position that transgender individuals should not be protected under civil rights laws, there has been a steady trend in the law to protect transgender individuals. The number of states, and even federal courts, that have recognized transgender individuals as belonging to a protected class, and thus protected by civil rights laws, keeps growing. Related Resources: Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life) The Rise of Anti-Anti-Discrimination Laws (FindLaw's Law and Daily Life) California's Gender Neutral Bathroom Bill (FindLaw's Law and Daily Life) Here's the Latest on Trump Immigration Reform Efforts (FindLaw's Law and Daily Life)
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ACLU, Lambda Legal Sue Trump Over Transgender Military Ban

Over the course of three tweets last month, President Donald Trump expressed his intent to ban transgender people from serving in the military. The White House made that intent official on Friday, issuing a Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security "prohibit[ing] openly transgender individuals from accession into the United States military and authoriz[ing] the discharge of such individuals. And it didn't take long for the lawsuits to follow. Both the ACLU and Lambda Legal have sued Donald Trump and his Secretary of Defense James Mattis, claiming the ban is unconstitutional and "compromises the safety and security of our country." Animus Trump's memo reverses Obama-era guidance allowing transgender individuals to openly serve in the military and allowing defense funds to cover sex-reassignment surgery. The ban would remain in place "until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above." In the memo, Trumps says, "The Secretary of Defense ... may advise me at any time, in writing, that a change to this policy is warranted," but that recommendation for change must be something that "I find convincing." The ACLU claims there is no military basis for the ban: The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly. News reports indicate that the Secretary of Defense and other military officials were surprised by President Trump's announcement and that his actual motivations were purely political, reflecting a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender, with a goal of gaining votes for a spending bill that included money to build a border wall with Mexico. Amicus The claims may bear some truth. Mattis was reportedly caught off guard by Trump's tweets, and sources say he was "appalled." Lambda Legal's suit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification." This is not the first time Trump has been sued over an executive order or memo -- there are now at least three lawsuits regarding the transgender military ban alone -- and will likely not be the last. Related Resources: Find Civil Rights Lawyers Near You (FindLaw's Lawyer Directory) Military Transgender Ban to Begin Within 6 Months, Memo Says (The New York Times) Transgender Service Members Sue Trump Over Military Ban Tweets (FindLaw's Courtside) Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life)
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Amid Controversy, Same-Sex Marriage Is Legal in Ala.

Alabama was the source of a good bit of controversy surrounding same-sex marriage last week, after a federal judge declared the state's law prohibiting same-sex marriage unconstitutional. Right after that, however, the Alabama Supreme Court's Chief Justice Roy Moore issued his own order telling state judges and employees not to recognize same-sex marriages or issue licenses. Moore's conflicting order led to questions about who trumps whom when it comes to federal trial courts and state supreme courts, but the U.S. Supreme Court put the issue to rest by refusing to review the case. What's going on down in Alabama? Same-Sex Marriage Is Constitutional -- Maybe On January 23, a federal trial judge in Alabama struck down Alabama's same-sex marriage ban as unconstitutional. The state refused to allow one of the women in the case to adopt the other woman's son because it didn't recognize their marriage as valid. Citing to recent same-sex marriage decisions, including the U.S. Supreme Court's 2013 ruling in U.S. v. Windsor, Judge Callie V.S. Granade concluded that Alabama's law violated the Equal Protection Clause of the U.S. Constitution and ordered the state to no longer enforce the ban. Granade's order set the stage for Alabama to become the 37th state to permit same-sex marriage -- except that, on February 3, Alabama Supreme Court Chief Justice Roy Moore issued a memo to state probate court judges (who are in charge of marriages) indicating they weren't bound by the federal court decision, which Moore said was contrary to state law. On February 8, he ordered probate judges and state employees not to recognize same-sex marriages. Legal scholars tend to agree that Moore's opinion doesn't override a federal judge's opinion. Moore is no stranger to making controversial decisions. He was removed as chief justice in 2003 when he refused to obey a federal court order to remove a Ten Commandments monument from outside the courthouse, but Alabama voters returned him to office in 2012. The Supremes Decide Not to Weigh In The U.S. Supreme Court implicitly affirmed Granade's order on Monday, when it refused to grant an emergency petition by Alabama's attorney general to stay Granade's decision, which would have suspended the issuing of marriage licenses in the state. Justices Thomas and Scalia dissented, arguing that the state law should have been stayed to allow a federal appellate court to weigh in. The dissent also took time to criticize the Court's recent practice of not staying a federal appeals court's order when it finds a state law unconstitutional. With the U.S. Supreme Court out of the picture, Alabama counties began issuing marriage licenses -- well, most of them, anyway. According to The New York Times, some Alabama courts protested the decision by not conducting any marriages at all. Related Resources: Confusion in Alabama as Some Defy Court Order to Grant Gay Marriage Licenses (Los Angeles Times) Ark. and Miss. Gay Marriage Bans Struck Down (FindLaw's Law and Daily Life) Same-Sex Marriage Returns to Supreme Court: 3 Things You Should Know (FindLaw's Law and Daily Life) Gay Marriage Update: Kan., Mo., and 6th Circuit (FindLaw's Law and Daily Life)
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Gay Marriage Legal in Wisconsin and Indiana: 7th. Circuit

Wisconsin and Indiana gay couples were vindicated today by a Seventh Circuit ruling that found both states' gay marriage bans unconstitutional. In a unanimous decision, the federal appellate court found that neither state was able to provide a rational basis for the same-sex marriage prohibition, leaving it to unconstitutionally deny gay couples equal protection of the laws. The Associated Press notes that with this new decision, the number of states with legalized gay marriage jumps from 19 to 21. What else is important about this gay marriage decision? Gay Marriage Now? In June, both Wisconsin and Indiana had their states' gay marriage bans ruled unconstitutional in federal court. In both states, marriages began shortly after each respective federal district court decision, allowing hundreds of gay and lesbian couples to wed. However, upon accepting both appeals, the Seventh Circuit had stayed these decisions, effectively putting marriages on hold until it came to a decision. Now the Seventh Circuit has come to a decision, so it appears that -- absent an emergency stay from the Supreme Court -- gay marriages can begin again in either state. New Test for Discrimination The traditional test for finding a law unconstitutional for violating the Fourteenth Amendment's guarantee of equal protection was to turn to the three levels of constitutional scrutiny. Many courts have chosen to elevate gays and lesbians to a quasi-suspect class, giving laws which discriminate against them a higher level of scrutiny. Others have chosen to apply the lowest level of scrutiny (rational basis) and still find the laws lacking. In its opinion, the Seventh Circuit sought to clear the air with a new inquiry for testing whether laws are unconstitutionally discriminatory: Does it discriminate against a historically prejudiced group, resulting in harmful, unequal treatment? Is the discrimination based on immutable or tenacious characteristics? Does the law provide an important offsetting benefit to society as a whole? Is the law overinclusive or underinclusive in providing that benefit? In answering these questions with regard to Indiana and Wisconsin's laws, the Seventh Circuit found they discriminated against a group that has been historically prejudiced (gays), who cannot and should not change their orientations. It also found that both states' reasons for denying gays marriage (childrearing and possible future harms) were either illusory or were poorly tailored in light of the reality of families in both states. Near the tail end of its opinion, the Court reminded America that "[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law." Related Resources: Appeals court nixes Indiana, Wisconsin gay marriage bans (USA Today) Ky.'s Gay-Marriage Ban Struck Down; Judge Stays Own Ruling (FindLaw's Law and Daily Life) Idaho's Gay Marriage Ban Struck Down; Gov. Vows to Appeal (FindLaw's Decided) Ind. and Wis. Same-Sex Marriage Cases Preview, Hearing Rescheduled (FindLaw's U.S. 7th Circuit Blog)
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