December 01, 2016

In the January/February GPSolo Magazine: LGBT Law

James L. Schwartz

On June 26, 2015, the United States Supreme Court in the case of Obergefell v. Hodges decided that there is a constitutional right of same sex couples to marry. To be sure, this was a revolutionary decision and one which has captivated not only the LGBT community but other communities as well to determine its possible applicability to these other communities and their issues.

As Al Gerhardstein, counsel for Jim Obergefell and John Arthur, correctly pointed out, was the Supreme Court decision the pot of gold at the end of the rainbow? In other words, did this decision by the Supreme Court once and for all settle any and all issues applicable to the LGBT community or do issues affecting LGBT folk still exist to be litigated?

The thrust of this issue takes the position that not every issue affecting the lives of LGBT persons has been settled by the Supreme Court's opinion. Included in the January/February issue of GPSolo Magazine are discussions of some of the issues still open:

Did the Supreme Court's opinion affect the rights of transgender persons? As the articles will more fully state, the Court's opinion really did not affect the rights of transgenders in any way and numerous issues still exist. For example, many of us are aware that issues exist as to which bathroom a transgendered person should use. That was certainly not part of the Supreme Court decision and additional litigation will be needed to settle that issue. Both Kylar Broadus and Shannon Minter have written wonderful articles detailing some of the problems and gains that the transgendered community has experienced. Their articles more fully detail that the Supreme Court decision had no effect on transgender issues.

Another significant unresolved issue is the "religious exemption" issue. In other words, and solely as an example, several religions take the position that if their religion states that same sex marriage is wrong, must they follow the Supreme Court’s opinion or are they exempt? Extensive litigation is going on everyday regarding this and similar issues. Jenny Pizer, an outstanding attorney with the ACLU in Los Angeles, has written a brilliant article that details some of these issues and provides great insight into the continuing problems.

Jennifer Levi, a very accomplished attorney with GLAD in Boston, has written an extraordinary article about whether the bullying of LGBT youth and others was stopped by the Supreme Court's opinion. As you will see, these issues were not settled and they continue to plague our society.

Additional articles are included that consider whether other issues were settled by the Supreme Court such as Abby Rubenfeld's article on family formation issues, Elizabeth Johnson and Scott Friedman's article on the changes in other aspects of family law, Cynthia Barrett's article on whether descent and medical issues were affected, Pat Cain's article on the effect of recognizing a same-sex marriage right on the tax laws, and Josh Paulin's article on whether immigration laws were affected by the Supreme Court's opinion.

Finally, Joan Burda has written about how to structure an estate plan for a same sex couple given the new decision, and Takeia Johnson has written a wonderful piece about the cultural competency needed by counsel to represent LGBT clients, both before the decision and especially since the Supreme Court's actions.

In conclusion, these articles provide an enormous amount of information available to all of you about this cutting-edge area of law, all of which may be of help to you in your daily practice. We certainly recommend it to you and sincerely hope you have as much enjoyment reading all of the articles as we did in putting this issue together.


James L. Schwartz

James L. Schwartz is the principal attorney at James L. Schwartz and Associates in Chicago, Illinois, the convening editor of January/February GPSolo Magazine, and the substantive law deputy editor of GPSolo eReport.