In 2020, there are 16 US states that still have sodomy laws against “perverted sexual practice” and “crimes against nature”.
According to ACLU, laws against sodomy were originally designed to prohibit any sex that was not for procreation, and so included crimes like having sex outside of marriage and bestiality.
But in the late 1960s, the laws began to be used to specifically target gay people, as an excuse for discrimination when gay rights progress was just starting to be made.
Some states rewrote their sodomy laws so that they would only apply to gay people, others ruled in court that they could not be applied to straight people.
In other states, no official change was made and sodomy laws were simply treated as if they only applied to gay people.
The laws were used to stop LGBT+ people raising children, to fire them or refuse them jobs and to generally discriminate against them and silence their voices.
Sodomy is illegal in Alabama, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, Oklahoma and South Carolina. Three states specifically target their statutes at same-sex relations only: Kansas, Kentucky, and Texas.
In 2003, the case of Lawrence v Texas saw a same-sex couple prosecuted for sodomy for having sex in private. In a landmark Supreme Court decision, prohibiting private same-sex activity between consenting adults was ruled unconstitutional.
SAN FRANCISCO – JUNE 29: Madame Glinka of San Francisco at the 2003 Pride Parade celebrating the Lawrence v Texas verdict. (Justin Sullivan/Getty)
This, along with anti-discrimination laws, effectively invalidated any remaining sodomy laws, but it still remains technically illegal in 16 states: Alabama, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, Oklahoma, Kansas,Kentucky, Texas and South Carolina. In Kansas, Kentucky and Texas the laws solely target same-sex activity.
While it might not seem like a problem if the laws are invalidated, this has not stopped people being arrested for the “crime” in cases which are alarmingly recent.
Although the crimes were thrown out by judges, these cases show that archaic sodomy laws and still having a detrimental effect on the LGBT+ community.
Legislators in Maryland are debating this session whether to repeal sodomy laws in the state.
According to analysis by the Boston Sun editorial board: “Maryland allows for up to 10 years in prison and a $1,000 fine upon criminal conviction for various acts, including bestiality… Setting the intimate relations with animals aside (we dearly hope that’s covered under animal abuse laws), there is no reason for the state to criminalise sexual acts between consenting adults.
“It’s shameful this law is still on the books and in use.”
For some, “queer” is a loaded word — a negative epithet from a less accepting time that was hurled at anyone perceived to be gay. But for others, particularly younger LGBTQ people, it is a reclaimed term and a less restrictive self-identifier.
While the word’s use — and its 21st century reclamation — has been mostly anecdotal up to this point, a new report from the Williams Institute at the UCLA School of Law has put scientific data behind the population of queer-identified people in the United States. According to its findings, nearly 6 percent of sexual minorities identify as queer, while 47 percent identify as lesbian or gay, just over 40 percent identify as bisexual and about 7 percent identify as “other.”
“We find in this study that queer individuals make up a sizable proportion of sexual minorities, who are distinct in a number of important ways from other sexual minority people, both in terms of demographic characteristics and sexuality, and across gender identity,” said lead author Shoshana K. Goldberg, a research consultant at the Williams Institute and an assistant professor focusing on LGBTQ health at the University of North Carolina, Chapel Hill.
Diving deeper into the data, the most striking demographic characteristic of the self-identified queer community comes into focus: age. Ninety-eight percent of queer people are ages 18 to 44, with the vast majority (76 percent) ages 18 to 25, or Generation Z. The study found that just 2 percent of queer-identified people are ages 52 to 59, the oldest age cohort in the study.
The vast majority of queer-identifying people, according to the report’s findings, were assigned female at birth (83 percent), with over half identifying as cisgender women. Queer respondents were also significantly more likely than lesbian, gay and bisexual respondents to identify as “genderqueer/nonbinary.”
Queer respondents also reported significantly higher education levels than lesbians and gay men and were less likely to be living in poverty than other sexual minorities. They were also more likely to report being attracted to transgender people, and transgender men in particular.
Eighty-five percent of cisgender queer women report being attracted to both men and women, and two-thirds of them say they’re attracted to both cisgender and trans people. Roughly half of cisgender queer men report being attracted to both men and women, and 72 percent report attraction to both cisgender and trans men.
“Queer identity seems to represent greater openness to partners of all gender identities,” said study author Ilan H. Meyer, a public policy researcher at the Williams Institute. “Some young people may perceive it as an identity that is more fluid than ‘lesbian’ and ‘gay.'”
Robyn Ochs, a bisexual activist and campus speaker and editor of Bi Women Quarterly, said she is “not surprised at all” by the survey’s results, since she sees the trend among young people in her work as a campus speaker.
“We come to our identities for strong personal reasons, and it’s my belief that if we took the entire LGBTQ+ community and locked us in a room and told us we can’t come out until we reached consensus, we would spend the rest of our lives in that room,” she said.
Ochs said that coming out as bisexual still elicits negative responses, even today, for a variety of reasons, including an assumption from other non-straight people that bisexuals benefit from heterosexual privilege. Ochs said she added the word “queer” to her identity in the 1990s and recently added “pansexual,” too.
“I see those three different words almost as describing: Is something blue, or is it turquoise or is it azure?” Ochs said. “I think that they are all overlapping terms; they can overlap comfortably.”
While the Williams Institute report asked respondents to choose their current sexual identity label, many sexual minorities, like Ochs, use multiple, overlapping identifiers at the same time.
Journalist Trish Bendix said she identifies as “a lesbian, a dyke and a queer woman.” She said “queerness feels more all-encompassing,” noting that some corners of the lesbian community are not inclusive of women who are attracted to trans, nonbinary and genderqueer people.
“This is why, although many women who may technically be lesbian-aligned will choose ‘queer’ as their identifier — to set themselves apart from what they see as a closed community,” Bendix said.
For others, “queer” is a catchall term that doesn’t force someone into a restricting box.
Gillian Branstetter, a writer and transgender advocate, said self-identifying as queer “can be a very liberating way to identify precisely because it’s so vague.”
“It allows each person to create their definition for it free of expectations or judgment,” she said.
The governor of New Jersey has signed a bill to officially ban the archaic ‘gay panic’ and ‘trans panic’ defence in the state.
The new law, signed by Democratic governor Phil Murphy on Tuesday, prevents criminal defendants from claiming that they were provoked to violence after discovering the victim’s sexual orientation or gender identity – an infamous legal defence used in several landmark cases to seek a lower sentence.
Governor Murphy said in a release: “We will always stand with our LGBTQ+ community and promote full equality for all our residents.
“Gay and trans panic defences are rooted in homophobia and abhorrent excuses that should never be used to justify violence against vulnerable populations.
“With this new law, we are enacting critical measures to protect our friends and neighbours in the LGBTQ+ community.”
California, Illinois, Rhode Island, New York, Nevada, Maine, Hawaii and Connecticut have also banned the ‘gay panic’ defence, while a bill proposed in Congress by Democratic representative Joe Kennedy III seeks to outlaw its use federally.
Gay panic defence ‘prejudiced against LGBT community’.
Assemblyman John McKeon, who sponsored the New Jersey bill, added: “The ‘gay panic or trans panic’ defence is not a freestanding defence to criminal liability, but rather a legal tactic.
“It’s used to diminish the reason for a defendant’s violent reaction that asks a jury to find a victim’s sexual orientation or gender/expression as the cause.
“Whether the person was gay, transgender or heterosexual, sexual orientation should not have any bearing on determining a person’s guilt in a murder trial. It is prejudiced against the LGBTQ community.”
Former US President Barack Obama stands on stage with Democratic gubernatorial candidate Phil Murphy on October 19, 2017 in Newark, New Jersey (Spencer Platt/Getty Images)
Christian Fuscarino of New Jersey LGBT+ group Garden State Equality said: “Make no mistake, the ‘panic’ defence is flat-out discriminatory legal malpractice, and no one should ever be excused from murder because their victim is gay or transgender.
“As hate crimes against LGBTQ New Jerseyans continue to rise and trans people are murdered across the nation, it’s more imperative than ever that we ensure our criminal justice system protects LGBTQ people equally — full stop.
“Thank you to governor Murphy for signing this ban into law and sending an unequivocal message that we fully value the lives and dignity of LGBTQ people in New Jersey.”
Trans people are also protected under New Jersey law.
Significantly, the bill also bans the deployment of the ‘trans panic’ defence, meaning that it is no longer permissible to cite discovery of a person’s gender identity as a reason for a “heat of the moment” crime.
Trans activist La’Nae Grant said: “Transgender women of colour are victims to murder, violence, and harassment every day of our lives simply for living authentically as ourselves.
“We deserve to live with dignity and safety in our communities. Knowing that the ‘panic’ defence is banned in New Jersey is another victory and moment of empowerment for black trans women like myself, but there’s still more work to do for our community.”
Supporters navigated a winding path to passage and some dissent remains, but barring it in Utah could give a boost to similar efforts in other right-leaning states, said Shannon Minter, legal director for the National Center for Lesbian Rights.
“It’s really given people a lot of hope,” said Minter, whose group has pushed for bans around the U.S. Virginia is considering a ban, and the issue could also come up in this year in Texas and Kentucky, he said.
Republican Gov. Gary Herbert took the unusual step of calling on regulators after a proposed law was derailed by changes made by conservative lawmakers. State officials confirmed the rule became final late Tuesday.
The original sponsor of the proposal, GOP Utah Rep. Craig Hall, applauded the rule going into effect, saying in a statement that it prohibits dangerous practices while protecting healthcare professionals.
Conversion therapy is a practice used to try to change sexual orientation or gender identity. Many people who have been through it say it deepened feelings of depression and increased thoughts of suicide. The new rule bans Utah therapists from subjecting LGBTQ minors to the practice that the American Psychological Association has said is not based in science and is harmful to mental health.
Still, the ban has drawn pushback in Utah. Opponents argued it would prevent parents from getting help for children with “unwanted” gay feelings and keep therapists from even talking about sexuality with their kids. The rule could become an issue during the 2020 legislative session.
Utah’s predominant faith, known widely as the Mormon church, opposes same-sex marriage and teaches that intimate same-sex relationships are a sin. But it also urges members to be kind and compassionate to LGBTQ people. The religion holds tremendous influence in Utah, where the majority of state lawmakers and nearly two-thirds of the state’s 3.1 million residents are members.
The faith got behind the conversion therapy ban after supporters included assurances that church leaders and members who are therapists would be allowed to provide spiritual counseling for parishioners or families.by TaboolaSponsored Stories
The White House has live-streamed a church service which saw the US vice-president speak and a bishop claim “the devil” causes homosexuality. After Mike Pence addressed the congregation in Tennessee, the preacher took to the pulpit to talk about same-sex relations in a sermon still available on the administration’s Youtube channel.
“It is a demonic spirit that causes a woman to want to live with another woman,” he said. “It is a demonic spirit that causes a man to be attracted to another man.”
The preacher, who has been named as the bishop Jerry Wayne Taylor, claimed the “devil” is trying to “destroy the foundation of marriage” and “cut off the reproduction process”. “Two men can’t have a baby. Two women can’t have a baby,” he told the congregation at the Holy City Church of God in Christ.
The pastor also falsely claimed that homosexuality does not exist in nature, telling Pence’s audience that “you never see two male animals coming together.”
Seven Republican lawmakers in Florida filed anti-LGBTQ bills late Monday, just hours before the deadline to file new bills for the coming legislative session.
If passed, the bills would ban gender-affirming health care for transgender children, repeal municipal and county ordinances protecting LGBTQ workers, and legalize so-called gay conversion therapy in places that had banned the medically debunked practice.
The state lawmakers — Rep. Anthony Sabatini, Sen. Dennis Baxley, Rep. Bob Rommel, Sen. Joe Gruters, Rep Michael Grant, Sen. Keith Perry, and Rep. Byron Donalds — together introduced the four pieces of legislation, each with a companion bill in the House and the Senate.
Rep. Shevrin Jones, one of Florida’s openly LGBTQ lawmakers, said in a statement that it is “shameful that Republican lawmakers are wasting tax dollars attacking Florida’s most vulnerable communities rather than prioritizing the issues that impact everyday people’s lives.”
“Clearly they’ve decided that discrimination and hate are central to their election-year platform despite our state’s incredible diversity,” Jones wrote. “Just as I’ve done since I was elected in 2012, I will continue to fight any legislation that marginalizes or threatens any Floridian’s shot at a secure, safe, and bright quality of life.”
Equality Florida, the state’s largest LGBTQ rights group, also decried the late-session bill dump.
“This is the most overtly anti-LGBTQ agenda from the Florida Legislature in recent memory,” Jon Harris Maurer, the group’s public policy director, said in a press release. “It runs the gamut from openly hostile legislation that would arrest and imprison doctors for providing medically necessary care, to legislation that would carelessly erase critical local LGBTQ protections.”
Gina Duncan, Equality Florida’s director of transgender equality, called out the proposed trans health bill, saying, “Transgender youth are some of the most at risk in our community.”
“It is outrageous that conservative legislators would threaten their health and safety,” she said in a statement. “Medical professionals, not politicians, should decide what medical care is in the best interest of a patient. Forcing a doctor to deny best practice medical care and deny support to transgender youth can be life-threatening.”
NBC News reached out to the legislators behind the bills but did not receive any responses before press time. After initial publication, however, Sen. Gruters responded saying his Senate bill — unlike its companion in the House — “includes protections” in the preamble by stating that “nothing in this act is intended to alter” local policies prohibiting employment discrimination.
“The bill certainly does not authorize an employer to discriminate against employees who are members of protected classes, whether protected by federal or state law or local ordinance,” Sen. Gruters told NBC News in an email. “While I do not believe the bill has any impact on local anti-discrimination ordinances, in an abundance of caution, I included language in the bill’s preamble to make clear that the preemption would not affect local anti-discrimination laws, and any court would interpret the preemption consistent with that preamble.”
However, Joe Saunders, Equality Florida’s senior political director, said the preamble is just the bill’s introduction and is not considered part of the law.
“We appreciate that Sen. Gruters put that in,” Saunders said, but “it’s not policy; it’s not considered part of the bill.”
Conservative Republicans across the country have lately moved to introduce bills that would criminalize the provision of medical care for transgender children — including treatments endorsed by all major medical organizations. Florida’s trans health care ban proposal joins a list of similar bills that have been filed in recent weeks by staunchly conservative lawmakers in Tennessee and Texas.
“Sadly, the medical care of transgender youth has been sensationalized and politicized,” Jack Turban, a researcher at Harvard Medical School, said. “Gender-affirming medical care for transgender adolescents is endorsed by major medical organizations, including the Endocrine Society, the American Academy of Pediatrics, and the American Academy of Child & Adolescent Psychiatry. It should go without saying, but providing standard medical care should not be a felony.”
A group of 45 Democratic members of Congress sent a letter to Immigration and Customs Enforcement on Tuesday demanding the agency release all transgender migrants in its custody.
“This already vulnerable population faces a heightened and unique set of injustices while in immigration detention,” the letter stated. “Transgender migrants and asylum seekers are particuarly vulnerable to sexual harassment, solitary confinement, physical assault, and medical neglect.”
At least two transgender migrants have died in ICE custody in the past two years. Roxsana Hernandez Rodriguez, a Honduran, died of complications from untreated HIV in 2018. Rodriguez did not receive antiretroviral therapy while in ICE custody, despite guidelines mandating that all detainees receive the minimum standard of care, which for HIV infection is ARV therapy. Last year, another HIV-positive transgender migrant, Johana Medina León from El Salvador, died shortly after being released from ICE custody, where she had requested medical assistance.
After León died last summer, Kris Hayashi, executive director of the Transgender Law Center, called the two deaths “a direct result of U.S. government policy, and will continue unless we force dramatic change.”
Advocates have long accused ICE of improper treatment of LGBTQ migrants, particularly after Hernandez died from a rare, AIDS-related illness at its Cibola detention center in New Mexico.
The Cibola unit — touted by the agency as its premiere detention facility for trans migrants — failed to treat Hernandez’s diagnosedHIV infection for 12 days, despite what ICE has claimed is a maximum 24-hour turnaround on sick-call requests.
The 45 lawmakers in their letter claim that none of ICE’s detention centers — including Cibola — are contracted specifically for housing trans inmates, a requirement set by ICE’s 2015 transgender detention standards. Speaking on background, a congressional staffer noted that at Cibola, ICE’s “compliance is currently voluntary and their standards could slip at any time with no repercussions.”
The letter notes that the “pervasive use of solitary confinement has caused particular harm to transgender migrants in detention.”
“ICE consistently utilizes solitary confinement for so-called protective purposes or violates its own guidance by using segregation as punishment, placing transgender people at risk of physical and mental health deterioration and vulnerability to sexual assault by ICE guards,” the letter states.
Representative Mike Quigley, a Democrat from Illinois, questions witnesses during a House Intelligence Committee impeachment inquiry hearing in Washington, on Nov. 19, 2019.Jacquelyn Martin / Bloomberg via Getty Images
Rep. Mike Quigley, D-Ill., spearheaded the effort to demand the release of transgender migrants. In a press release shared with NBC News, he said if “ICE cannot provide appropriate and humane accommodations for these migrants, they must release them from detention.”
“Immigrants who have faced fear and violence in their pursuit of a new life in the United States should not be confronted with more fear and threats of violence when they arrive at our borders,” he stated. “Unfortunately, too often, that is exactly what many transgender immigrants face when placed in ICE detention facilities.”
When asked for comment, ICE spokesperson April Grant said in an email that the agency “will respond to Congressional correspondence through official channels and by appropriate officials at the agency.”
Immigration Equality, an advocacy group dedicated to LGBTQ immigrants, called the two deaths “tragic examples of the consequences of ICE’s mistreatment,” and endorsed the demands of the 45 lawmakers: “Transgender immigrants are not safe in ICE custody and must be released.”
“After fleeing horrific persecution in their countries of origin, our transgender clients seek protection in the U.S.,” Bridget Crawford, legal director of Immigration Equality, said. “However, rather than finding safety, our clients are routinely subjected to shocking mistreatment in immigration detention facilities, including sexual assault and harassment, medical neglect and prolonged solitary confinement as a purported means of ‘protecting’ transgender people from abuse.”
The lawmakers’ letter requests a detailed ICE plan by Jan. 27 outlining compliance, and requests semi-monthly updates to “demonstrate such compliance.”
Surprise surprise, Donald Trump has appointed a campaign advisor who promotes conversion therapy and thinks HIV in gay men is “God’s moral law.”
Anti-LGBT+ extremist Jenna Ellis is a right-wing news pundit and former constitutional law attorney. She does nothing to hide her strongly homophobic views and has a long history of tirades against “the homosexual lifestyle” and the “LGBT agenda.”
Trump appointed her for the senior role as he was impressed by Ellis’ TV appearances, Axios reported. He also indicated that he wanted to give her a bigger job, and his team briefly discussed bringing her into the White House.
Ellis is a vocal Christian who believes gay and bisexual men have higher rates of HIV because “we cannot escape God’s moral law and His supremacy.” She has also claimed that Christians cannot follow God while they accept, condone, or participate in homosexuality.
She attacked the out Democratic candidate Pete Buttigieg for being a gay Christian, writing on Facebook: “If Pete Buttigieg is going to invoke the name of his Creator, he should read for himself what his Creator says about homosexuality in the Bible. Truth doesn’t change, regardless of the culture or the Dems’ identity politics.”
When same-sex marriage was legalised in the US, Ellis lamented that the decision “told the LGBT community that their homosexual lifestyle was not just legal privately, but morally validated openly through government recognition and social celebration and therefore equally as valued as heterosexual unions.”
And after the mass shooting at Pulse LGBT+ nightclub in 2016, she responded with a column entitled ‘Two Wrongs Do Not Make an LGBT Right,’ which bemoaned the fact that the massacre was being used to “embrace” homosexuality.
“Let me be clear – the Orlando shooting was absolutely terrible and tragic. But the response to this tragedy should not be embracing and advocating for gay rights,” she said.
Not content with merely making vile comments, Ellis has actively worked against conversion therapy bans, testifying in 2019 at a Colorado House committee hearing against a bill protecting youth from the harmful and discredited practice.
“She gets it,” Donald Trump reportedly told a Daily Beastsource.
The Trump administration’s latest bid to have two HIV-positive airmen discharged from service has been blocked by courts for a second time.
The two men, referred to by the pseudonyms Roe and Voe, were given discharge orders in 2017 on the basis that they couldn’t be deployed to the Middle East due to their HIV-positive status.
Both men are on antiretroviral treatment, have no symptoms, and have been pronounced physically fit to deploy by their doctors.
Their discharges were blocked by a preliminary injunction in February last year, which the Department of Defence and the Air Force appealed.
On Friday, January 10, a federal court moved to uphold the injunction, judging that the ban on deployment was based on an “obsolete understanding” of HIV/AIDS.
“[It] may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks. But any understanding of HIV that could justify this ban is outmoded and at odds with current science,” said Judge James A. Wynn Jr.
“Such obsolete understandings cannot justify a ban, even under a deferential standard of review and even according appropriate deference to the military’s professional judgments.”
The servicemen, like other HIV-positive people with undetectable viral loads, have no symptoms of HIV. They take a daily medication which means they cannot transmit the virus through normal daily activities, and their risk of transmitting the virus through battlefield exposure is extremely low if at all possible.
“But the Government did not consider these realities when discharging these servicemembers, instead relying on assumptions and categorical determinations,” the ruling stated.
“As a result, the Air Force denied these servicemembers an individualised determination of their fitness for military service.”
Roe and Voe were represented by Lambda Legal, a civil rights organisation that fights on behalf of LGBT+ people. Scott Schoettes, Lambda Legal’s HIV Project director, said that the government was unable to give a reasonable justification for the servicemen’s “discriminatory treatment”.
“This is the second federal court to find that the Trump administration’s attempt to discharge these individuals is unlikely to pass legal muster,” he said in a press release.
“At the root of these discharge decisions and other restrictions on the service of people living with HIV are completely outdated and bigoted ideas about HIV.
“Today’s ruling clears the way for us to definitively prove at trial that a person living with HIV can perform the job of soldier or airman as well and as safely as anyone else.”
Sen. Amy Klobuchar is facing scrutiny on the campaign trail for voting to confirm many of President Trump’s judicial nominees — and a closer look at that record reveals she backed one pick who once derided as “social policy” not only LGBTQ rights and abortion, but also school integration.
With weeks remaining before the Iowa caucuses on Feb. 3, Klobuchar’s vote to confirm David Ryan Stras to the U.S. Eighth Circuit Court of Appeals could dissuade supporters of LGBTQ rights and other progressives from supporting her in the Democratic presidential primary.
Although Stras hasn’t been as viciously anti-LGBTQ as some of Trump’s other picks, his past is troubling to LGBTQ advocates. As a law professor, Stras in a 2008 legal essay was condescending toward judges’ “ventures” into LGBTQ rights, abortion and school integration.
“The court’s own ventures into contentious areas of social policy — such as school integration, abortion, and homosexual rights — have raised the stakes of confirmation battles even higher,” Stras wrote.
Additionally, as a Minnesota Supreme Court justice, Stras in 2012 joined an opinion allowing an anti-gay marriage amendment to come intact to the ballot with a title obscuring its purpose and effect. Minnesota voters ended up rejecting the amendment anyway.
Along with Sen. Doug Wilson (Ala.), Sen. Joe Manchin (W.Va.) former Sen. Claire McCaskill (D-Mo.) Sen. Mark Warner (Va.), former Sen. Heidi Heithkamp (N.D.) and former Sen. Joe Donnelly (Ind.), Klobuchar was among seven Democrats who joined Republicans in voting for Stras. The vote in January 2018 was otherwise along party lines, 56-42.
Ironically, Klobuchar voted for Stras even though she wasn’t consulted on the judicial pick, which was a customary part of the confirmation process before the Trump era, and recommended other choices for the judicial seat.
Carlie Waibel, national press secretary for the Klobuchar campaign, put distance between Klobuchar and Stras in response to a Washington Blade inquiry on whether the Democratic hopeful stands by her vote.
“Of course Sen. Klobuchar disagrees with his comments, just as she will not agree with every one of his opinions,” Waibel said. “She has made clear that Judge Stras was not the judge that she would ever recommend to the White House. In fact, she recommended other candidates.”
Waibel also defended the senator’s vote for Stras by saying he was better than other picks Trump might have offered.
“Her vote was based on the reality that given the choices, on balance she thought he was better than the other candidates who would have been nominated from other states,” the spokesperson said. “Judge Stras was recommended by liberal Justice Alan Page, who Sen. Klobuchar has great respect for, and in the vast majority of cases on the Minnesota Supreme Court Judge Stras sided with the majority, which included several Democratic-appointed justices.”
Klobuchar’s vote for Stras was one of many in favor of judicial nominees by Trump, who set records with judicial confirmations in ways that will likely affect the courts for generations to come.
According to an April 2019 article in ThinkProgress, Klobuchar voted for more than 56 percent of his judicial picks two years into his presidency. According to the Klobuchar campaign, the percentage since that time has dropped to just 33 percent.
Meanwhile, other Democratic senators who have run for president this cycle, such as Bernie Sanders, Kamala Harris, Elizabeth Warren and Kirsten Gillibrand, had a knee-jerk opposition to all of them.
Klobuchar cast a vote for Stras even though he was opposed by civil rights and progressive groups, who pointed to his statements and actions as a law professor and Minnesota Supreme Court justice. Among the groups that opposed him were Lambda Legal, People for the American Way and Alliance for Justice.
“His vision of the role of the courts as a nefarious force that seeks to block the will of the majority sends a dangerous message to vulnerable minorities that their constitutional rights are not guaranteed,” McGowan wrote. “Justice Stras’ failure to appreciate the important role that an independent judiciary plays in our constitutional democracy causes communities like ours grave concern.”
In a 2008 essay titled “Understanding the New Politics of Judicial Appointments,” Stras wrote intensified media scrutiny and organized interest groups have politicized the judicial confirmation process, which he said made lawmakers act “with a keen eye toward pleasing constituent groups and maintaining a consistent policy image.”
As an example of attempts at “pleasing constituent groups,” Stras pointed to judicial rulings on LGBTQ rights, abortion and school integration, suggesting either the decisions were best left to the political process or the courts got it wrong.
Although the Supreme Court decision in Roe v. Wade is the case most cited in the article, Stras also draws on the 2003 decision in Lawrence v. Texas, noting with a tinge of skepticism the court “struck down a Texas ban on homosexual sodomy because, according to the court, the state law violated privacy rights.”
Anthony Kreis, visiting assistant professor of law for the Chicago-Kent College of Law, told the Blade comments deriding LGBTQ rights as “social policy” are off-base.
“The problem with the notion of LGBTQ rights as being ‘social policy,’ is that viewpoint indicates that the Constitution’s protections do not sweep broadly enough to protect sexual minorities,” Kreis said. “In other words, LGBTQ people are at the mercy of legislatures to do right by them — and so then courts aren’t reliable actors to combat homophobia and transphobia.”
In written responses to questions from the Senate on his 2008 writing, Stras when asked about school integration acknowledged the Supreme Court applied the Fourteenth Amendment to desegregate schools in Brown v. Board of Education, which he said “overruled the Supreme Court’s detestable decision in Plessy v. Ferguson.”
“When I wrote the referenced book review essay, I did so as a law professor, not as a judge,” Stras added. “I was describing the factors that have increased political polarization surrounding the judicial nomination process over the past several decades.”
Asked whether the U.S. Constitution provides a textual basis for rights to contraception, women’s access to abortion and same-sex marriage, Stras acknowledged the Supreme Court’s rulings in favor of abortion rights and marriage equality, saying he’d “follow all binding precedent, including each of these precedents” on the Eighth Circuit.
Four years later, when Stras was a justice on the Minnesota Supreme Court, he joined an opinion that prevented the Minnesota secretary of state from changing the ballot title on a proposed anti-gay marriage constitutional amendment from “Recognition of Marriage Solely Between One Man and One Woman” to “Limited the Status of Marriage to Opposite Sex Couples.”
Although Minnesota law dictates the secretary of state must “provide an appropriate title” for proposed constitutional amendments on the ballot, the court in the case of Limmer v. Ritchie concluded that language doesn’t enable the official to change a ballot title designated by the state legislature.
“Allowing the secretary of state, an executive branch officer with no constitutional authority over the form and manner of proposed constitutional amendments, to simply ignore the legislature’s action in proposing and passing a title to accompany a ballot question on a constitutional amendment potentially risks interfering with the legislature’s constitutional authority,” the decision says.
The decision, however, wasn’t unanimous. Minnesota Supreme Court Judge Minnesota Alan Page criticized the majority in his dissent by saying the ruling “announces a fundamentally flawed interpretation” of state law.
“Under the court’s view, a majority of the legislature could propose a constitutional amendment to, say, reinstate prohibition, propose the ballot title ‘Eliminating the Personal Income Tax,’ the secretary of state would be obligated to put the legislature’s title on the ballot, and under the standard the court announces today, this court could do nothing to prevent it,” Page wrote. “That is a result I cannot countenance.”
It should be noted that although the Klobuchar campaign defended the Minnesota Democrat’s vote for Stras by saying he was recommended by Page, the two weren’t in agreement in this instance.
Stras’s LGBTQ record was just part of the reason civil rights and progressives opposed his confirmation. A member of the Federalist Society, Stras clerked for conservative U.S. Associate Justice Clarence Justice, whom he called a “mentor” upon being sworn in to the Minnesota Supreme Court.
In Peterson v. Minnesota, which involves a police officer suing the City of Minneapolis for age discrimination, the Minnesota Supreme Court determined the 14 months the city took to investigate the case need not be applied to the statute of limitations under the law. Stras, however, joined a dissent that would have prevented the officer from bringing his case to the jury.
When the Minnesota Supreme Court ruled in a rape case trial judges can allow expert testimony to explain why a victim would delay in reporting the incident, Stras strikingly dissented on procedural grounds. The testimony was deemed warranted in the case because the victim had waited several hours before reporting the incident.
Stras has cultivated this record even though his own family experienced persecution as a member of a minority community. Stras, who’s believed to be the first Jewish person to serve on the Minnesota Supreme Court, is the descendant of Holocaust survivors.
To be sure, Klobuchar has built a solid record in support of LGBTQ rights as a member of the U.S. Senate. She was a co-sponsor of the Respect for Marriage Act, which sought to repeal the anti-gay Defense of Marriage Act before it was overturned by the U.S. Supreme Court, voted in favor of the Employment Non-Discrimination Act and now co-sponsors the Equality Act. The Minnesota Democrat received a perfect score of “100” in the latest Human Rights Campaign congressional scorecard.
However, Klobuchar’s vote to confirm Stras to the Eighth Circuit despite his record on LGBTQ rights stands out.
Kreis acknowledged “there are often many reasons why senators could vote for nominees they don’t favor,” but didn’t see that at play with Klobuchar’s vote for Stras.
“It is hard to discern what reason she might have,” Kreis said. “Whatever the reason might be for the favorable vote, it was not a vote cast to help the advancement of LGBTQ rights.”
