The Lawyers Who Helped Make Gay Marriage the Law of the Land Are Just Getting Started

“No one should be targeted because of who they love.”

Ted Eytan/Flickr

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


Last June, in the case of Obergefell v. Hodges, the Supreme Court issued a landmark ruling legalizing same-sex marriage nationwide. A year later, President Obama has christened Stonewall Inn the first national monument to LGBT rights, and the nation is engaged in a conversation—and new legal battles—involving transgender equality, another piece of the puzzle. I caught up with Memphis-based civil rights attorney Maureen Holland, part of the winning legal team in Obergfell, to discuss the eventful past year, the Pulse massacre, and her next big legal project.

Maureen Holland

Mother Jones: After the Obergefell ruling, there was substantial resistance, including Kim Davis the county clerk in Kentucky who refused to grant marriage licenses. Several states proposed bills that would let businesses deny services to LGBT customers on religious grounds. Were you surprised by the level of pushback?

Maureen Holland: It did not surprise me. Many southern states pushed back after the Loving [1967 interracial marriage] case was decided, so we recognized there might be resistance. But I think the pushback was overshadowed by the overwhelming support for the decision. For some time, I was continually getting comments about how many lives were positively affected.

MJ: Since then, there’s been a growing number of federal lawsuits by people alleging their civil rights were violated when they were denied marriage benefits, or fired after coming out to their employers as gay.

MH: Employment protections are the next step in the gay-rights fight. In February 2015, before Obergefell, the Equal Employment Opportunity Commission announced that its offices would accept claims from people alleging sexual orientation-based discrimination in the workplace. After Obergefell, many people believed their cases would finally be heard if they filed claims—so they did. But the EEOC has to review the claims, decide which ones it wants to take action on, deny the claim, or tell the claimant they can sue in federal court. In recent months, we’ve seen people filing lawsuits who finally got their right-to-sue letters for claims they filed right after Obergefell. I don’t know if any organization is keeping track of the number of cases.

Holland is now making the case that the Constitution prohibits discrimination based on sexual orientation and gender identity.  

MJ: You’re now working on a case on behalf of a gay cop in Memphis who says he was harassed while working as his department’s LGBT liaison. You argue that workplace discrimination based on sexual orientation is covered under the Civil Rights Act’s ban on gender discrimination in the workplace. Can you explain the logic?

MH: Sexual orientation discrimination is essentially discriminating against somebody because they’re not conforming to the norms of their sex. Men should talk a certain way. Women should wear a certain attire at work. That kind of discrimination is illegal under Title VII of the Civil Rights Act. And discriminating against someone because they’re a man dating a man but you think they should date women is the same type of discrimination. So we think it is illegal as well. That argument would also extend to discrimination based on gender identity.

MJ: Which brings me to my next question: In Obergefell the Supreme Court found that gay marriage is a protected right under the Constitution, but it didn’t say sexual orientation is a protected class, like race and gender. Is there any language in that opinion that suggests your strategy will succeed?

MH: There’s language in any court opinion—called dicta—that you can draw implications from and use to extend the finding to other contexts. The dicta in Obergefell is clear: The Court adopts the idea that “psychologists and others recognize that sexual orientation is both a normal expression of human sexuality and immutable.” In my complaint for the Memphis officer, I use this and other quotes as the framework for the argument that the Obergefell ruling was not just about marriage.

MJ: This notion that sexual orientation is immutable sounds like a clear indication that it should be a protected class. The Constitution’s equal protection clause was meant to protect people from discrimination based on attributes they can’t change.

MH: Exactly. But we don’t have case law that says it with that level of clarity in regard to sexual orientation. That’s why people are bringing these cases.

MJ: Let’s pivot to transgender rights. We’re in the midst of a big national debate about that. Why now?

MH: It’s the next conversation we had to have about LGBT rights. Gender identity—what is that? What does it mean? How do our laws apply to individuals who transition? The Obergefell decision opened up space for a more national conversation.

MJ: President Obama repealed Don’t Ask Don’t Tell. His Department of Justice stopped enforcing the Defense of Marriage Act before the Obergefell decision. And 11 states are now suing his administration over bathroom guidelines it issued for transgender students.

MH: I think President Obama has become a great advocate for LGBT rights. He’s talked about his transition in thinking on same-sex marriage, and the fact that we got to see him do that openly and honestly has been helpful. He has issued executive orders that give protections based on sexual orientation and gender identity to public-sector employees. All these things speak well to his willingness to not just say it, but to do things that are meaningful to protect LGBT people.

“You want to live in a community where you don’t have to be afraid to go outside or go to work and be who you are.”

MJ: When might the Supreme Court take up the question of whether sexual orientation and gender identity are constitutionally protected?

MH: It could happen the year after next. They have to accept a case that asks the question, first. But there are a number of those moving into the Court of Appeals. It also depends on the decisions of the Courts of Appeal. The Supreme Court tends to take cases when there’s a difference in opinion in the circuits—not just because they think a case is interesting. That’s what happened in Obergefell.

MJ: I’m curious about your thoughts on what happened in Orlando.

MH: I was heartbroken. It was hard to see—as a member of the LGBT community myself—people targeted because of their identity, when a year prior we had celebrated Obergefell. No one should be targeted because of who they love, and that message needs to continue to be said, and protections need to be in place. I spoke at a vigil for Orlando here in Memphis the day it happened. The crowd came out, and I think they were afraid to be who they are because they knew they could be targeted. You want to live in a community where you don’t have to be afraid to go outside or go to work and be who you are. And that’s what I hope the future will be. We’re not there yet.

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate