Analysis Sexuality

Same-Sex Marriage Bans Violate the Equal Protection Clause. End of Story

Imani Gandy

There is no legitimate overriding purpose for subjecting gays and lesbians to invidious discrimination based on sexual orientation, because, ultimately, once you chip away at arguments against same-sex marriage, you’re left with nothing but “because it’s gross.” And “Ewww” is not a reason to deny an entire class of citizens a fundamental right.

The Equal Protection Clause of the Fourteenth Amendment prohibits the sort of irrational discrimination sanctioned by Proposition 8 and other state statutes and ballot initiatives that prohibit same-sex marriage. It is an inescapable truth.

For all the bromides about pausing while the country evolves on same-sex marriage, or waiting until more “sociological information” (as Justice Kennedy so helpfully put it) is available, laws banning same-sex marriage give homophobia the force of law, and treat gays and lesbians differently than everybody else based on nothing more than an “ick” factor. It is animus at its most vulgar, and it is exactly the sort of animus that the Fourteenth Amendment, which states “No State shall … deny to any person within its jurisdiction the equal protection of the laws” proscribes.

Same-sex marriage bans are not long for this world, however. Much in the way that we scoff at the notion that mixed-race couples should be prevented from marrying in order to preserve racial integrity, so, too, will we laugh at the notion that same-sex marriage somehow undermines or degrades so-called “traditional marriage.”

At the outset, “traditional marriage” is an untenable concept. The Christian historical view of the one man, one woman “traditional marriage” is a social construct based upon outdated and gendered stereotypes of the purpose of marriage, which views men as breadwinners and women as homemakers and child-rearers. Social constructs, by their very nature, are given to change. The obsession with “tradition” simply allows a majority to withhold rights from a minority simply because “that’s what we’ve always done.” But, “we’ve been doing it this way for a while” is an absurd argument for continuing to treat gay couples as if they are inferior to straight couples just because. The Ninth Circuit made this exact point in its ruling in Hollingsworth v. Perry:

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Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself . . . . A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.

Absent any legitimate purpose for Proposition 8, we are left with the ‘inevitable inference that the disadvantage imposed is born of animosity toward,’ or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, ‘the class affected.’  Romer, 517 U.S. at 634.  We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California . . . . Disapproval may also be the product of longstanding, sincerely held private belief.

To avoid the inescapable truth that same-sex marriage bans are borne of animus and homophobia, opponents of same-sex marriage latch on to procreation as if the inability of gay couples to reproduce “naturally” somehow immunizes same-sex marriage from proscriptions of the Equal Protection Clause. “The point of marriage is procreation!,” opponents of same-sex marriage cry. “We’re not homophobic, we’re traditionalists!,” they yell, as they sputter to explain why, then, they don’t support prohibiting marriage between elderly couples and infertile couples.

Their attempts to make sense of their own nonsense leads to ridiculous theater like that which played out during the Hollingsworth v. Perry hearing, as Justice Kagan asked Charles Cooper, the attorney tasked with defending Proposition 8, to make a case for excluding gays and lesbians from marriage but not, for example, 55-year olds. Cooper’s response was absurd:

Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile… society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation…

You know, because same-sex couples don’t hold the obligations of fidelity and monogamy as dearly as say, Newt Gingrich or Bill Clinton do.

Another line of questioning, this time from Justice Sotomayor, lead to similar absurd results:

“Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?”

Cooper responded, “Your Honor, I cannot.” Cooper tried to undercut this stunning admission by offering platitudes about society’s interest in “responsible procreation,” but ultimately there is nothing special about marriage in California specifically (since gay couples can adopt) that makes it acceptable to discriminate against gays and lesbians when it would be unacceptable, as Cooper admitted, to discriminate in every other context. It’s a tricky thing, trying to make excuses for why gays shouldn’t be allowed to marry without coming right out and saying, “It grosses me out. Ew.”

Finally, a protracted exchange between Ted Olson, the attorney for the parties challenging Proposition 8 and Justice Scalia further illustrated the absurdity underlying the argument for maintaining discrimination against gay couples simply because we’ve always discriminated against gay couples. After making the incredible claim that Petitioners—who brought suit based upon California policy— were asking the Court to adjudicate the constitutionality of same-sex marriage nationwide (a notion of which Justice Ginsburg quickly disabused Scalia), Scalia argued, nonsensically, that he couldn’t decide the case unless Olson first explained when banning gay marriage became unconstitutional:

“When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” 

Olson answered Scalia’s rhetorical question with a rhetorical question of his own:

“When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

When pressed further, Olson responded that sexual orientation became unconstitutional when we, as a culture, said so.

And that’s precisely the point. As society evolved and began to view homosexuality not as a disease, but as an immutable characteristic (like race or sex) so, too, did calls for equal protection for gays and lesbians under the law. As societal views on groups against which discrimination is acceptable evolves and changes, the Equal Protection Clause evolves and changes, too. We cannot continue to discriminate against a class of citizens simply because we’ve always discriminated against that class of citizens, nor does the Equal Protection Clause contemplate clinging to such discrimination.

For example, the framers did not intend for the Equal Protection Clause as drafted to sanction interracial marriage, but by 1967, when Loving v. Virginia landed in the Supreme Court, the Court, applying strict scrutiny, found that prohibiting interracial marriage was invidious discrimination and unconstitutional. Should the Court decide to apply some standard more heightened than rational review (intermediate scrutiny, which is applied to gender classifications, for example) in Hollingsworth v. Perry, then Proposition 8 fails, and all same sex marriage bans likely do as well. I cannot fathom any “exceedingly persuasive justification” for prohibiting gay  couples from marrying. Should the Court decide, however, that rational review applies, Proposition 8 should still fail because in California, the stated interest (procreation) becomes moot since gay couples in California are permitted to adopt. (Other state bans may pass muster under a rational review test, depending upon a particular state’s existing practices with respect to same-sex couples and adoption.)

Irrespective of the standard of scrutiny applied, however, I doubt that anti-equality proponents will be able to argue their way around Loving v. Virginia. During oral arguments, Cooper tried. He valiantly attempted to distinguish between interracial marriage and same-sex marriage, but his arguments failed. He claimed that unlike interracial couples and same-race couples, same-sex couples and opposite-sex couples are not indistinguishable “for every legitimate purpose of marriage,” because same-sex couples can’t reproduce naturally. (Notably, the standard for marriage seems to be biological reproductive capability, and not the more general “desire to form a family unit.” Such a narrow standard disparages single mothers and fathers, parents who choose to adopt, and married couples who choose not to have children, whether because they don’t want to or because they can’t.)

Cooper’s claims aside, the threshold question remains unanswered: Is a state’s interest in “responsible procreation” a legitimate purpose such that any couples that cannot meet their “procreative responsibilities” can rightfully be excluded from marriage? Where is the harm in allowing gay couples to marry? Or, as Justice Kagan put it, “Is there any reason you have for excluding them?” (Cooper, again, valiantly tried to answer that question, fretting about unforeseen adverse consequences of gay marriage, but those arguments fail, too. After all, same-sex marriage has been legal in the Netherlands for more than a decade, and Dutch civilization hasn’t collapsed under the weight of original sin.)

Quite simply, just as the court in Loving found “patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification,” so too, I hope, will the Supreme Court find that there is no legitimate overriding purpose for subjecting gays and lesbians to invidious discrimination based on sexual orientation, because, ultimately, once you chip away at marriage equality opponents’ arguments against same-sex marriage, you’re left with nothing but “because it’s gross.” And at the end of the day, “Ewww” is not a reason to deny an entire class of citizens a fundamental right.

Culture & Conversation Media

From ‘Mouseburger’ to Media Icon: Bio Traces Rise of Cosmo Editor Helen Gurley Brown

Eleanor J. Bader

Helen Gurley Brown was a publishing giant and pop-culture feminist theorist. But according to her latest biographer, she was a mass of insecurities even as she confidently told single people, especially women, to take charge of their sex lives.

Like all of us, Cosmopolitan magazine’s longtime editor Helen Gurley Brown lived with conflicting drives and desires. But Gurley Brown’s ideas and insecurities had a public platform, where she championed sex for singles while downplaying workplace sexual harassment and featured feminist voices while upholding the beauty ideals that made her own life difficult.

A workhorse who played hard, Gurley Brown, who died in 2012, is presented as an often contradictory heroine and an unexpected success story in journalist Gerri Hirshey’s new 500-page biography, Not Pretty Enough: The Unlikely Triumph of Helen Gurley Brown.

Helen Gurley Brown’s life and example—almost a classic Horatio Alger “rags to riches” tale—affirms that the American idea of surmounting humble origins is sometimes possible, if improbable. But Gurley Brown’s story also illustrates both personal grit and endurance. Wily, willing to take risks, and sexually audacious, she might be a questionable role model for 21st century women, but her amazing story, as told by Hirshey, will nonetheless inspire and entertain.

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Born in 1922, Gurley Brown led Cosmopolitan for 32 years. She moved the magazine, which had been published continuously since 1886, from relative obscurity into the limelight. Known for its brash cover chatter and how-to articles on heterosexual man-pleasing, Cosmo is the world’s highest-selling women’s magazine, with 61 print editions. Its long history—alongside Helen Gurley Brown’s personal story—offers a fascinating window into the intersection between U.S. publishing and burgeoning 20th-century feminist ideologies.

Hirshey (whose earlier books include Nowhere to Run: The Story of Soul Music and We Gotta Get Out of This Place: The True, Tough Story of Women in Rock) presents Gurley Brown as a mess of pushes and pulls: insecure, brilliant, bold, self-effacing, loyal, independent, jittery, and frugal to the point of deprivation. Indeed, Hirshey’s revealing and detailed biography describes the pioneering editor as someone hungry for experiences; a sophisticated New Yorker with deep roots in rural America; and a writer of guidebooks who had trouble taking advice. In short, Helen Gurley Brown was limited by a host of personal issues, but that did not stop her from trying to push societal boundaries and shatter sexual propriety.

A native of small-town Arkansas, Helen’s childhood was marred by tragedy. Her father died in an accident when she was 10; several years later, her older sister, Mary, contracted polio, which left her partially paralyzed. Helen’s mother, Cleo, was overwhelmed and often depressed. Nonetheless, she scrambled to keep the creditors at bay, and the family lived in numerous decrepit rentals during Helen’s childhood.

Poverty was not the only obstacle Helen faced. According to Hirshey, “By the time Mary and Helen were school age, Cleo had begun her steady warnings that pretty girls got the best in life.” While Cleo never used the word “plain” to describe her offspring, it was clear that she did not think them comely. Helen was devastated. What’s more, the fear of being unattractive dogged her for her entire life and she had multiple surgeries to correct “flaws.” She also starved herself and exercised compulsively—and would likely now be labeled as having an eating disorder—to keep her weight at an unwavering 105 pounds.

Her success, Hirshey writes, was the result of luck, tenacity, and sheer chutzpah.

It started in the 1940s, shortly after she finished high school and secured the first of a string of secretarial jobs. During her tenure as a typist and stenographer, Helen cozied up to her male bosses and slept with some of them.

“It was the first time she truly observed and understood that sex is power,” Hirshey writes. “Helen had come to realize that sex was a surprising and thrilling equalizer between the sheets.” Gurley Brown pooh-poohed the idea that people should wait until marriage to have sex and had no problem dating men who were cheating on their wives. The same went, Hirshey writes, for racists and overt anti-Semites. Since she was giving a large part of her earnings to her mother and her sister, it was the size of a man’s bank book, rather than his politics, that evidently curried her favor.

Nevertheless, being a mistress had a downside, and Helen’s diary reveals that she felt like a “little bird … expected to stay in her cage, always available yet always alone.”

Her fortunes turned shortly after her 26th birthday, when she became secretary to Don Belding, chairman of the board at prestigious ad agency Foote, Cone, and Belding. Belding paid Helen $75 a week and treated her like a long-lost daughter; she considered him a surrogate father.

Alice Belding, Don’s wife, took a particular interest in Helen and, after reading something she’d written, persuaded her husband to give Helen a chance as a copywriter. He did, making her one of the first women to break into the field.

Meanwhile, there were men. Lots of men. “Certainly, men love beautiful women,” Hirshey writes. But Helen realized that when “the lights went out, Miss Universe might just as well be the poor, sooty match girl if she couldn’t make him shout hallelujah.” She loved the power sex gave her, but was hurt during a group therapy session when another participant dubbed her a slut. “Spoken with venom, it had the effect of a gut-punch,” Hirshey writes.  Still, it proved clarifying for Helen, allowing her to formulate the idea at the heart of her 1962 book, Sex and the Single Girl: There is nothing shameful about unmarried people having sex as long as it’s consensual.

Helen met David Brown, a high-profile movie executive, in 1958, when she was 36. David was 42, twice married and twice divorced, and had no interest in returning to the altar anytime soon.  This was fine with Helen. Nonetheless, as they spent more and more time together, they formed a strategic partnership. Yes, there was love, but Helen Gurley craved financial security, which David could provide. They wed in September 1959.

At that point, David suggested that Helen take a professional detour and write “a guidebook of sorts for single women.” Hirshey reports that he envisioned “something along the lines of ‘How to Have a Successful Affair’” and ticked off possible subjects, including how to snare a guy and dress for conquest. He also wanted the manual to include concrete sex tips. Helen loved the idea and the pair began to work on it, she as writer, he as editor.

Sex and the Single Girl told the truth as Helen saw it. Hirshey notes that the book was meant as a practicum, “and was never intended as an overtly feminist tract. Systemic change was not at all on her radar; she addressed herself to bettering the small, quotidian lives toiling within the status quo, of those, herself included, she would come to call ‘mouseburgers.’ Sexism was not even in her vocabulary.”

Her message was quite simple: Sex needed to be decoupled from marriage. As for gender roles, she was fine with women playing coy. In fact, she explicitly advised women to go out with men only if they could pay for everything, from dinner and drinks to “prezzies.”

There were of course, detractors, but Sex and the Single Girl sold millions of copies and made Helen Gurley Brown a household name. She appeared on countless TV talk shows and was the first woman featured in Playboy’s famous centerpiece interviews.

In the throes of her success, however, David was offered a job in New York and the couple decided to leave California, where they’d both lived for decades. David, Hirshey reports, knew that Helen needed to work, “that Helen unemployed would be Helen unhinged.” Together, they developed a prototype for a monthly women’s magazine that would popularize and expand upon the ideas in Sex and the Single Girl. They called it Femme and floated the idea to every publisher they knew. No one liked it.

Eventually, Hearst Corporation suggested “superimposing” the format on one of the corporation’s least successful publications, Cosmopolitan, with Helen Gurley Brown at the helm.

It worked, not only boosting sagging sales but catapulting “The Cosmo Girl” to prominence. Sexual freedom, Gurley Brown enthused, was in–but apparently only for heterosexuals, since the magazine rarely acknowledged the existence of same-sex relationships or bisexuality.

Nonetheless, the first few issues tackled then-risqué themes, as these titles suggest: “The Bugaboo of Male Impotence”; “I was a Nude Model (and This is What Happened)”; “Things I’ll Never Do with a Man Again”; “The Astonishingly Frank Diary of an Unfaithful Wife”; and “How to Make a Small Bosom Amount to Something.”

As the “sexual revolution” of the 1960s took hold, Cosmo flourished, albeit steering clear of covering racial unrest, the Vietnam War, or the counterculture and anti-militarism movements. Likewise, if Gurley Brown had any thoughts about the civil rights or peace movements, Hirshey neglects to mention them. She does note that for Helen, “readers of color scarcely registered.” It’s too bad this is not probed more deeply in Not Pretty Enough, and why the editor remained above the fray—was it fear, disinterest, or hostility?—remains unclear.

The women’s movement of the 1960s and 1970s did capture Helen’s interest, though, and she considered herself a devout feminist, with a particular passion for promoting reproductive rights. She wrote numerous articles about the need to overhaul abortion policies pre-Roe v. Wade, openly declaring that “it’s a shame that girls have to go to Mexico or Europe to be operated on.” At Cosmo, she cheered the arrival of the birth control pill in 1960; hailed the 1965 Supreme Court decision in Griswold v. Connecticut that gave married heterosexuals access to birth control; and was exuberant when Eisenstadt v. Baird gave unmarried couples the same right to control their fertility in 1972.

Sexual harassment, on the other hand, was befuddling to her. Remembering her days as a secretary, she dubbed slaps on the ass and sexually suggestive comments to be harmless fun. “When a man finds you sexually attractive, he is paying you a compliment,” she wrote in a monthly Cosmo column. “When he doesn’t, that’s when you have to worry.”

Small wonder that Kate Millett picketed Cosmo for its “reactionary politics” or that Betty Friedan slammed it for its sexism and preponderance of inane articles on keeping men happy.

Despite disagreeing with these thinkers, Helen Gurley Brown marched down New York City’s Fifth Avenue to celebrate the 50th anniversary of women’s suffrage in August 1970 and published articles written by prominent feminists as the 1970s unfolded.

Then, at the height of the AIDS crisis, Gurley Brown stepped in it. In early 1988, Cosmo ran an article that minimized the possibility of heterosexual transmission of HIV and made it sound as if straight women were immune from infection. Equally horrifying, the author, psychiatrist Dr. Robert E. Gould, was overtly racist. “Many men in Africa take their women in a brutal way,” he wrote, “so that some heterosexual activity regarded as normal by them would be close to rape by our standards.”

Oy. Readers were aghast, and Gurley Brown was roundly and deservedly criticized. Even Surgeon General C. Everett Koop weighed in, saying the article did “such a disservice” by suggesting that the risk of contracting the virus was low for heterosexual women. Hirshey reports that, inexplicably, the article was never retracted or corrected.

By this point, however, Helen was showing signs of dementia—she had periodical temper tantrums in public and was becoming less reliable and sharp—so Hearst Corporation brought in several new editors, albeit without firing Helen. She continued going into the office until shortly before her 2012 death. She had done paid work for 71 years.

Hirshey’s sources range from primary documents and in-person interviews with people who knew Gurley Brown, including Gloria Vanderbilt and Barbara Walters. Correspondence and recorded talks between her and friends such as Jacqueline Susann and Joan Rivers provide incisive, funny, and poignant anecdotes. These interviews give the book reportorial gravitas and intimacy. And although Hirshey had only a passing acquaintance with her subject—she had interviewed Gurley Brown decades earlier for an article about marriage proposals—she nonetheless manages to show Gurley Brown as a regular Jane who spoke openly about her nagging doubts.

Many readers will feel as if they can relate to Gurley Brown’s struggles and triumphs. Throughout the book, I felt sad for her, but also wished we’d met.

In fact, I closed the book wanting more; among other things, I wanted to better understand what it was like for her to move between near-poverty and the upper crust. Did she feel like an impostor? Did her lifelong conviction that she was not pretty enough or smart enough keep her from feeling connected to others? Did she ever feel truly secure?

Perhaps Gurley Brown’s self-doubts are what kept her from becoming arrogant or abusive to others; even those who hated Cosmopolitan or were frustrated by her racial and political blind spots admired her kindness. Similarly, these doubts did not prompt her to disguise her eccentricities—among them, pilfering from petty cash and always taking public transportation rather than cabs. Indeed, whatever Gurley Brown felt about her own appeal, Hirshey’s biography presents Helen Gurley Brown the woman as quirky, humble, and utterly fascinating.

Analysis Law and Policy

The Issue of Trans Student Rights Inches Closer to the Supreme Court

Jessica Mason Pieklo

With several cases in the legal pipeline, it's becoming a question of when—not whether—the Roberts Court will step into the fight over transgender rights and bathroom access.

On August 29, the Gloucester County School Board in Virginia will file a request asking the U.S. Supreme Court to step into the fight over whether transgender student Gavin Grimm can use the bathroom that aligns with his gender identity. Grimm’s case is not the first of its kind, but it has become one of the most high-profile.

At this point, it’s not a question of whether the Roberts Court is likely to take a case concerning what rights transgender students have under Title IX. It’s more a question of when.

Title IX of the Education Amendment Act of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any federally funded education program or activity. Historically, civil rights advocates have used Title IX to guarantee female students access to equal classes, facilities, and educational opportunities. It’s also recently become an important, if flawed tool in addressing campus sexual assault.

“Basically anything distinguishing between boys and girls or men and women is prohibited under Title IX, unless there is a specific exception in the statute or regulations allowing it to happen,” Joshua Block, senior staff attorney with the America Civil Liberties Union’s LGBT & HIV Project and one of the lawyers on Grimm’s case, explained to Rewire in an interview.

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Title IX has some small carve-outs for when and under what conditions schools may discriminate on the basis of sex, Block noted. “The Department of Education has passed very detailed regulations saying when you do and don’t have to integrate a sports team,” he explained. “It’s passed detailed regulations on under what conditions a school [can] offer sex-segregated classes. Those would otherwise be prohibited unless … authorized by the regulation,” he said.

Among the carve-outs for allowable sex-segregation under Title IX is a regulation dealing with restroom and locker room access, which is at the heart of cases like Grimm’s. And it’s that carve-out that has sparked the legal fight over trans rights at school.

“There is a long-standing regulation that says schools can have separate restrooms and can have locker rooms divided by sex,” said Block. “Now fast forward 40 years later and you have school districts saying that this regulation not only gives them permission to have boys’ and girls’ rooms, but it gives them permission to essentially banish transgender kids from those restrooms by saying they can’t use a restroom consistent with their gender identity.”

The legal landscape of trans student rights to access restrooms and locker rooms consistent with their gender identity has been shifting well before Grimm’s lawsuit. Since as early as 2009, schools in places like Maine and Illinois have faced lawsuits for prohibiting students from accessing restrooms and locker rooms consistent with their gender identity. Meanwhile, states like California and Colorado have provided affirmative protections for transgender students in the form of nondiscrimination laws so students can use restrooms and locker rooms consistent with their gender identity. But that means transgender students across the country are subject to a patchwork of legal protections that are not uniform across the country: A trans student in California has, at least in theory, more legal protections against discrimination at school than one in Mississippi. So for many trans students, Title IX is the only legal protection against discrimination they have.

Through a series of administrative actions, the Department of Education (DOE) since 2013 has tried to nudge reluctant school administrators toward understanding the difference between providing for sex-segregated facilities and using those facilities as justification for discriminating against transgender students. It has notified federally funded schools that failing to allow transgender students access to restrooms and locker rooms consistent with their gender identity will subject those schools to litigation and risk their federal funding. In other words, the DOE made explicit its interpretation of federal law: Schools may have sex-segregated facilities like restrooms, but they cannot determine on the basis of gender identity which students have access to which facilities.

Significantly, the Obama administration filed a friend-of-the-court brief in Grimm’s case, urging the federal appeals court to follow its lead on interpreting Title IX to protect against gender identity discrimination in schools. So far, both the district court and the Fourth Circuit Court of Appeals have listened to the administration, deferring to the federal agency on how best to interpret the regulations that agency publishes. Those rulings have been temporarily put on hold while the Gloucester School Board files its request to have the Roberts Court step in.

This brings us to the conservative Fifth Circuit Court of Appeals and the lawsuit filed by more than 20 states in May arguing that the Obama administration has overstepped its authority on this matter. It’s similar to the argument raised by Gloucester County in the Grimm case and rejected by the Fourth Circuit.

Raising those arguments in the conservative Fifth Circuit, the same federal appeals court that blocked the Obama administration’s executive action on deportations, is a strategic bet by conservatives that they can get a ruling in their favor. Such a ruling would create a likely circuit split, or disagreement, in the appellate courts—which is exactly the kind of situation the Supreme Court is set up to resolve.

Once again, Justice Anthony Kennedy is poised as the swing vote, the justice each side needs to rule in its favor. And while Kennedy has emerged as a moderate but leading voice in the jurisprudential recognition of LGBTQ rights, he has also been critical of some Obama administration agency action. Cases like Grimm’s, or whichever transgender rights case the Court eventually takes up, will present the ultimate test for Kennedy: Which matters more, his desire to see the “dignity” of the LGBTQ community advance in the law, or his distrust of executive authority—even if that executive authority advances LGBTQ dignity?

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