In part one of the two-part series on the Courts, Judge Arrowood gave you an excellent non-partisan understanding of the nuts and bolts of the Courts. In this article, I hope to convey why the courts matter to you and the importance of doing your part to make sure fair and impartial jurists are elected or appointed to the bench. For those who know me, as you’d expect, this article will have a partisan slant because I am extremely partisan and as history has shown us over the last few decades, it is by far the jurists who are Democrats that we can count on to be fair, impartial and recognize that LGBTQ+ citizens have the same rights and protections under the law.
In fairness, there are a few Republicans Judges who do the right thing some of the time, like U.S. Supreme Court Chief Justice John Roberts and Associate Justice Neil Gorsuch who joined Democratic Justices to rule in favor of extending employment protections for LGBTQ+ citizens.
At the end of this article and the two-part series, our hope is that you’ll have a better understanding of the courts, the importance of the courts in your daily lives relative to who is elected or appointed to sit on the bench(es) and that you’ll be more energized and committed to do your part to support the Judicial candidates running at every level of the judiciary, as well as other offices that control the appointments of federal and state judges, including the President of the United States (who appoints U.S. Supreme Court [SCOTUS] Justices and other Federal Courts), the U.S. Senate (who confirms SCOTUS and other Federal nominees), the Governor (who appoints state justices), and the state Senate (who confirms state nominees). You’ll also recognize that the Attorney General is important, as well, and finally this article will give you ways that you can engage and participate to make a real difference.
The Judicial Branch is the third and co-equal branch of our government along with the Executive and Legislative Branches, each of which is designed to provide checks and balances to the others. The judicial branch decides the meaning of laws, how they’re applied and whether a law breaks the rules of the U.S. or State Constitutions. Here are a few examples that demonstrate the power and impact of the courts in our lives:
In 1996 the Defense of Marriage Act (DOMA) was passed by Congress and signed into law. It defined marriage for federal purposes as the union between one man and one woman and allowed states to refuse to recognize same-sex marriages. Many states that didn’t already have prohibitive laws started passing legislation banning “gay marriage” and defining marriage between one man and one woman.
In 1975, Virginia amended its Code to prohibit same-sex marriage and in 1997, a bill was approved banning recognition of same-sex marriages from other jurisdictions. In 2012, under a Republican majority in the North Carolina General Assembly, a constitutional amendment, Amendment One, was put on the ballot that defined marriage between one man and one woman as the only valid and recognized domestic union. The language was very confusing by design and unfortunately in May of 2012 the voters approved the amendment 61 percent to 39 percent, with a voter turnout of only 35 percent.
In 2013, United States v. Windsor, the U.S. Supreme Court issued a landmark decision on same-sex marriage and held that Section 3 of DOMA, which denied federal recognition of same-sex marriages, was a violation of the Due Process Clause of the Fifth Amendment and that the federal government must recognize same-sex marriages that had been approved by states as legitimate. The Second Circuit Court of Appeals affirmed. Also in 2013, a lawsuit was filed in federal court, Bostic v. Schaefer, which challenged Virginia’s law banning same-sex marriage. The plaintiffs won in U.S. district court in February 2014. It was challenged and the Fourth Circuit Court of Appeals upheld that ruling in July, 2014 in a 2-1 vote. On October 6, 2014, the U.S. Supreme Court denied a writ of certiorari letting the Fourth Circuit’s ruling stand, pending the outcome of further litigation. Some state officials refused to defend their state’s constitutional and statutory bans, including Governor Roy Cooper, who was the NC Attorney General at the time and on the day the Fourth Circuit decision was announced, Cooper issued a statement that he would no longer defend his state’s ban on same-sex marriage because North Carolina was bound by the Fourth Circuit precedent. Interesting note, South Carolina is also one of the states that is in the Fourth Circuit Court of Appeals and their Attorney General, Alan Wilson’s spokesperson at the time said that he would continue to defend his state ban and encouraged people not to rush to act or react until a decision was made by the highest court of the land. Which, as we know, occurred on June 26, 2015, when the U.S. Supreme Court issued their decision on Obergefell v. Hodges, ruling that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
In Title VII, Congress banned discrimination in the workplace on the basis of race, color, religion, sex or national origin and on June 15, 2020, SCOTUS handed down another landmark victory for our community with their decision on Bostock v. Clayton County, holding that federal law prohibits employment discrimination against LGBTQ workers. This law applies to all employers with greater than 15 employees.
So, what about employers with less than 15 employees? This is where state law comes into play and since there is no state law in North Carolina, it falls under local municipality jurisdiction to enact non-discrimination ordinances.
- Non-discrimination Ordinances. The December 1, 2020 sunset of HB142’s law prohibiting municipalities from passing non-discrimination ordinances in public accommodations and private employment, gave municipalities in NC the opportunity to pass broad non-discrimination ordinances. The NC is Ready Coalition led by Equality NC and the Campaign for Southern Equality, joined by the LGBTQ+ Democrats of NC, and many other LGBTQ and Ally organizations, had already been preparing and working with elected officials and attorneys in cities, towns and counties to pass NDOs. In the beginning, many municipality attorneys and elected officials were afraid of being sued or facing retaliation from the Republican majority legislature, but many proceeded forward. Thanks goes to ENC and the Campaign for Southern Equality for hiring Chris Brook, Attorney and former NC Court of Appeals Judge (one of the judges who lost their 2020 bid for re-election) to provide assistance in municipal attorney discussions. To date, 16 North Carolina Municipalities have passed NDOs, with more underway. The relevance in this article is that should there be legal challenges to an NDO, it would be decided in the courts.
2020 False Election Fraud Claims
Of course, the reports of election fraud in the 2020 election were unequivocally false. Many state election officials and experts confirmed the 2020 elections were the most secure elections in our nation’s history, but that didn’t stop the former President from challenging the elections, even after his then U.S. Attorney General publicly stated there was no substantial voter fraud. The more than 60 cases in 12 states came before judges of all types, elected and appointed, Democrat and Republican, rural and urban, state and federal, Northern, Southern, Eastern and Western. The federal judges who heard the cases or denied hearing the cases were appointed by presidents of both parties over decades and all came to the same conclusion that there was no widespread voter fraud and rejected the allegations. SCOTUS also rejected to hear the cases.
2022 NC Congressional Maps
New political maps are drawn every 10 years following the U.S. Census and they’re drawn by the state legislatures based on the new population. Why should you care? The location of district lines decides which voters vote for which representatives. Here in North Carolina, we’ve been dealing with grossly unfair and gerrymandered maps since the Republicans took control of the General Assembly in 2010, which in essence means they are packing districts and stacking the deck to win more seats, where in essence they are trying to choose the voters rather than the voters choosing their representatives as it should be. Many of you may be asking if the Democrats did the same when they were the majority party? The answer is, they certainly drew maps to their advantage, but they were fairer and never so grossly gerrymandered, nor were they challenged in court at the same levels that the maps drawn by the Republicans have been challenged.
For purposes of this article, we’ll focus on the maps drawn most recently following the U.S. 2020 Census. In typical form, the GOP drew grossly gerrymandered lines that likely would have created a 10-4 advantage for Republicans in NC’s Congressional delegation and would ensure that the GOP would hold its majority in both houses of the NC General Assembly. The maps were challenged in the courts. In February 2022, the Democratic majority NC Supreme Court ruled them unconstitutional and ordered the NCGA to redraw the maps. The new maps drawn by the legislators were provided to the NC Supreme Court. As required, the Chief Justice appointed a three-judge panel to review. The Chief Justice is a Republican and appointed a trio of GOP Justices. The panel accepted the newly drawn versions of the NC House and Senate maps the legislators had drawn, but not the new congressional map. Instead, the justices had a group of outside experts draw a new congressional map. Both sides challenged the new congressional map and the Democrats challenged the NC legislative map, however all attempts were struck down by the panel. The GOP Legislative leaders took the congressional map to SCOTUS, who decided not to hear the case at this time, but four of the Justices said they’d be opened to considering for 2024. The NC House and Senate maps remain gerrymandered, and the new congressional map is not great, but better than the original map drawn by the legislators.
Case in point, if Chief Justice Cheri Beasley had won and other Democratic candidates had won in 2020, the panel appointed would have been Democrats and the outcome would likely have been different. Of note, Chief Justice Beasley lost by only 300 votes. Despite losing three Democratic seats on the NC Supreme Court in the 2020 elections, the NC Supreme Court still has a 4-3 Democratic majority, otherwise the initial ruling of the maps would likely also have been different, and the gerrymandered maps for the congressional districts and state House and Senate would likely have been approved the first time, just like we’ve seen in other states where Republican majority legislatures drew maps and their Republican majority courts blessed them. So, is voting for Judges important? YES! The people should choose their representatives and not the other way around!
LGBTQ+ Domestic Violence
The Democratic majority North Carolina Supreme Court ruled on Friday, March 11, 2022 that victims of domestic violence in same-sex relationships can obtain emergency restraining orders and domestic violence protections, which nullified the state law that prohibited domestic violence protection for same-sex couples who were not married or divorced. It took four years after the break-up and domestic dispute between two women before the case made it to the North Carolina Supreme Court. The plaintiff, only known as M.E., appealed after a Wake County district court ruled that she was ineligible for a domestic violence protection order because the couple had never been married and were in a same-sex relationship. The March 11 decision was written by Associate Justice Robin Hudson for the four-member Democratic majority, including Associate Justice Samuel Ervin, IV, Associate Justice Michael Morgan and Associate Justice Anita Earls. Thanks goes to LGBTQ advocacy organizations, like ENC and the Democratic Attorney General Josh Stein for submitting friend-of-the-court briefs in the case. Of extremely notable interest, the three Republican Justices dissented. Associate Justice Phil Berger Jr (son of NC Republican Senate Leader Phil Berger, Sr.) wrote the dissent and was joined by Chief Justice Paul Newby and Associate Justice Tamara Barringer. Once again, I point out to you that it was the Democratic Justices who decided this case in favor of the LGBTQ+ community.
Associate Justice Robin Hudson is retiring and Associate Justice Sammuel Ervin, IV is up for re-election in 2022. I’m sure you now have a better understanding of just how critical it is that we maintain a Democratic majority by helping to re-elect Justice Sammuel “Jimmy” Ervin, IV and electing Judge Lucy Inman to fill Justice Hudson’s seat!
Transgender Name Change
To obtain a legal name change in NC, an applicant must submit a petition to court and under NC law, the Clerk of Superior Court (one elected in each county) has jurisdiction over name changes.
In North Carolina in 2012, two trans women, Síle Kelleher and Hadassah Chayim were denied legal name changes in the counties of Wake and Durham. They challenged the ruling in court and on February 10, 2014 they won their case. Today, the process of obtaining a name change is much easier for our Trans siblings.
That doesn’t mean that Trans people don’t face discrimination in the courts. Unfortunately, there are many stories of discrimination against transgender people in the courts, especially those who haven’t gone through a name change yet but find themselves in a North Carolina court for various reasons, such as they are being purposefully misgendered and treated in hateful and blatantly cruel ways, making an already stressful situation of being in a court room even more uncomfortable.
There are many other areas where the Judicial Branch impacts our daily lives today and will in the future. Today, for example, reproductive technology has given same-sex couples a better opportunity to have children, but the parent not carrying the child needs to go through an adoption process to ensure they will be legally recognized as the parent, even though they are already listed on the birth certificate at the time of birth. The adoption process we have now is the same process used by stepparents and often requires a report written by a social worker who visits the home and makes a recommendation on the adoption. None of this is required for opposite-sex couples because people can easily assume the husband is the child’s biological father. In the future someone may challenge this in court and of course, the law needs to be changed by the North Carolina General Assembly.
Some other examples of what may come before the courts in the future will likely be book banning, and with all the anti-trans legislation being passed in this country, there will likely be cases before the courts involving denial of trans healthcare, trans individuals in sports, “Don’t say Gay” and much more.
It’s also not out of the realm of possibility that marriage equality could be challenged again in the future and with a conservative majority in the U.S. Supreme Court the outcome may not be favorable. Just look at what’s happening with Roe v. Wade where there’s been a 50-year precedence that’s now in jeopardy of being overturned.
So, in closing, I hope you see the importance of the Judicial Branch of our government and how critical it is to vote for the judges and those who appoint our judges. The year 2022 is a critical election, perhaps even more so than 2020. We must do our part to:
- Re-elect Associate Justice Sammuel “Jimmy” Ervin, IV and elect Judge Lucy Inman to the NC Supreme Court and elect pro-LGBTQ candidates in all other judicial races.
- Elect Cheri Beasley to the US Senate (to protect and expand the Democratic majority) and
- Elect LGBTQ and Ally candidates to the US House of Representatives (to protect the Democratic majority, who passed the Equality Act), the NC House and Senate (gaining seats or maintaining enough seats to sustain the Governor’s veto) and local municipal elections.
When speaking with Connie Vetter, Attorney at Law and a recognized and honored LGBTQ+ activist in Charlotte about this article, she said, “LGBTQ people need to vote because our lives depend on it!”
I couldn’t agree more. Our voter turnout in 2020 was extremely poor, so let’s change that in 2022. Every Vote Counts! If more of us had voted, we would likely have made the difference in the 2020 election results, especially in the judicial races. As I stated above, Chief Justice Cheri Beasley lost her race by only 300 votes.
To protect your own self-interests and that of the LGBTQ+ and marginalized communities, I hope you’re energized to get engaged and that you’re asking yourselves “what can I do?” Here are a few things you can do:
- You can vote!
- You can give money to candidates, particularly judicial candidates who have a harder time raising money than other candidates. One of the other detrimental things the GOP has done in North Carolina after taking control of the NCGA was to make the judicial races partisan and eliminate public financing for judicial campaigns.
- You can host fundraising events for candidates to introduce them to your circle and/or put up yard signs.
- You can give of your time by volunteering on a campaign or with the Democratic Party.
- You can talk to your family, friends and neighbors about the importance of voting and how critical it is to go all the way through the ballot to vote for the judges.
- And finally, as soon as you have the opportunity, pass on the links to Q-Notes electronic copy of this two-part series, or have them pick up a hard copy.
Ginger Walker, activist and former President, LGBTQ+ Democrats of NC