By James Esseks, ACLU Director, LGBTQ & HIV Project

This week, the U.S. House of Representatives passed the Respect for Marriage Act. Here’s why that’s a big deal and why — contrary to much of the reporting on it — the measure is actually fairly limited.

The push behind the Respect for Marriage Act is Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s Mississippi abortion decision in which it overturned Roe v. Wade. Justice Thomas urged the court to overturn its rulings establishing a fundamental constitutional right to use contraception, the right of same-sex couples to marry, and a right to form intimate sexual relationships with other consenting adults. With the right to marry potentially at risk, our friends in Congress wanted to do something.

The bill passed the House with a large, bipartisan vote of 267-157, making it the most pro-LGBTQ vote in Congressional history. Forty-seven House Republicans voted yes, even in this supremely partisan and bitterly divided Congress, where conservatives are vigorously pushing anti-LGBTQ measures and rhetoric. In contrast, the Equality Act, the LGBTQ movement’s highest priority bill in Congress, which would expressly add LGBTQ people to the Civil Rights Act, passed the House a year ago with a vote of just 224-206, with only three Republicans voting in support. The much larger bipartisan support for the Respect for Marriage Act is a hopeful sign of potential progress to come.

Here’s why: The Respect for Marriage Act repeals the 1996 Defense of Marriage Act, which in turn did two things: DOMA barred the federal government from respecting the marriages of same-sex couples who were married under state law, excluding them from federal recognition in over 1,000 contexts, from Social Security survivor benefits to the ability to sponsor a spouse for citizenship to equitable tax treatment. It also said that the Full Faith and Credit Clause of the Constitution doesn’t require states to respect the marriages of same-sex couples performed by other states.

The Supreme Court struck down the federal recognition portion of DOMA in the 2013 United States v. Windsor decision. After Dobbs, people fear that Windsor could be overturned, so the Respect for Marriage Act fully repeals the federal respect portion of DOMA and replaces it with a requirement of respect by the federal government. It also repeals the Full Faith and Credit portion of DOMA, replacing it with a statement that Full Faith and Credit requires inter-state recognition. Those would both be significant advances that would backstop the Supreme Court’s ruling in Windsor and the inter-state recognition portion of its ruling in Obergefell v. Hodges should they be overturned.

If the Supreme Court overturns Obergefell v. Hodges, which established that the fundamental right to marry covers same-sex couples, the Respect for Marriage Act would not stop any state from once again refusing to issue marriage licenses to same-sex couples. The federal government would still be required to respect same-sex couples’ already-existing marriages, as would other states in many circumstances. But a state that wanted to get out of the business of issuing marriage licenses to same-sex couples would not violate the Respect for Marriage Act.

The second reason that the landmark vote on the Respect for Marriage Act is limited in effect is that it’s not clear that the bill will actually make it out of the Senate given the 60-vote requirement. That would require 10 Republican senators to join all 50 Democratic senators in agreeing to let the bill get to a vote, and then a majority of senators to vote yes. Despite the significant bipartisan support in the House, progress like that in the Senate is still a very steep hill to climb.

While Congress debates and votes on the Respect for Marriage Act, the LGBTQ community remains under intense attack in the states. A record number of anti-trans and anti-LGBQ bills were introduced and passed in state legislatures over the past two years. These measures bar trans and non-binary people from access to health care, from updating their identity documents, and from full participation in daily life. They seek to erase trans people from society and to ban schools from talking about the mere existence of LGBTQ people.

Our freedom to marry indeed needs protection from Congress. But we also need to fight against these broader attacks on the LGBTQ community, especially trans and non-binary people. Passing the Equality Act would be a good start. Congress needs to fight as though trans lives depend on its actions, because they do.

By Susan Mizner, ACLU Director, Disability Rights Program

People with disabilities have a right to equal access under the law, including equal access to voting, education, and protections in the criminal legal system. But too often, policies and practices at the polls, and in schools, jails, and prisons violate our fundamental rights. These violations hinder access to the ballot, risk students’ health and safety, and trap people with disabilities in the carceral system.

At the ACLU, we’re fighting back in the courts and in legislatures to help people with disabilities access their rights. In honor of Disability Pride Month this July, we’re highlighting a few of our recent battles and wins for disability rights across the country.

More than 250 bills restricting access to voting have been introduced in 43 states since the 2020 election. While most of these laws are intended to suppress the votes of people of color, the effect of these laws falls most heavily on low-income people with disabilities — who are very often in communities of color. People with disabilities have faced years of barriers to voting, including inaccessible polling sites, inaccessible online voter registration, and inaccessible voting machines that polling staff can’t operate. Now, people with disabilities are also facing additional barriers at the polls and with voting by mail. While in some states, the pandemic has made voting by mail more accessible, in others, politicians have passed voter suppression bills that make casting a ballot more difficult or even impossible for voters with disabilities — especially for those who are Black.

The ACLU has active litigation tackling this issue in many states. In Georgia and in Texas, we’re challenging voter suppression laws that make it harder for all residents to vote — especially for people with disabilities in low-income communities of color. We argue that these restrictions not only violate the Voting Rights Act and the Constitution, but also violate the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. We won’t stop fighting until every eligible voter has equal access to the ballot.

Students with disabilities have a right to a public education, with their peers, and without risking their health and safety. This includes students whose disability makes them more vulnerable to severe complications from COVID-19. However, in the highly charged political climate we are living in, some states chose to prohibit schools from being able to require face masks — even at the height of the pandemic. This forced students with disabilities and their families to make an impossible decision: go to school and risk contracting COVID-19? Or stay home and lose out on their education?

The ACLU — along with our grassroots partners and affiliates — sued on behalf of these students with disabilities. We successfully argued that the ADA and the Rehabilitation Act require public schools to provide equal access for students with disabilities. They cannot segregate students with disabilities by making them go to school remotely. And, they must provide reasonable modifications — even to state laws — if this is necessary to give a student with a disability equal access to their education.

In South Carolina, we challenged one such state ban last year in federal court alongside our allies — and won an order blocking its enforcement. The district court made it clear that the state’s ban on school mask mandates violates federal disability rights law because it discriminates against students with disabilities in violation of the ADA and the Rehabilitation Act.

In Iowa, we also filed suit challenging the state’s ban on mask mandates in schools and won in the district and appeals court. While the Eighth Circuit has since ruled that the injunction is moot — because students can now get vaccinations and treatment — our lawsuit helped instill important protections for students with disabilities at the height of the pandemic.

As the pandemic continues to evolve, states continue to challenge these rulings — but the ACLU will keep fighting to ensure all children with disabilities have equal access to their education.

https://www.aclu.org/podcast/school-mask-mandate-bans-discriminate-against-disabled-kids

Prisons and jails are the lands that forgot the ADA. People with disabilities have a right to reasonable accommodations for their disability while incarcerated, on probation, or on parole — but prisons and jails operate as if these laws don’t apply to them.

For example, for people who are deaf or hard of hearing, prisons and jails are required to provide access to American Sign Language (ASL) interpreters, real time captioning, pocket talkers, and other auxiliary aids and services. But they seldom do. When prisons fail to provide these accommodations, incarcerated deaf people may never be able to learn the rules of the prison, defend themselves in disciplinary hearings, or even hear meal call.

Without these services, incarcerated people with hearing disabilities also cannot communicate with guards, medical staff, counselors, and family. The lack of communication access can also leave those on probation or parole with an inaccurate or incomplete understanding of conditions and requirements, putting them at constant risk of being returned to prison as well as hindering their ability to re-integrate into society through access to employment, health, and housing. As a result, people who are deaf or hard of hearing tend to be imprisoned more often, incarcerated longer, and returned to prison more quickly than others.

In Georgia, we have filed suits against the state’s Department of Corrections and the Department of Community Supervision. These state institutions have repeatedly failed to provide appropriate communication access to deaf and hard of hearing people, in violation of the ADA, the Rehabilitation Act, and the Constitution.

By Urooba Abid, ACLU Paralegal, Disability Rights Program

When Rosa Parks refused to give up her seat on a bus in Montgomery, Alabama in 1955, our laws did not provide any recourse against the discrimination she faced. In the decades that followed, organizers and civil rights groups won key battles to expand our laws to protect against discrimination for Black people, women, and people with disabilities. Until recently, thanks to the groundwork laid by people like Parks, people who faced discrimination could seek damages for the emotional distress they endured. But the U.S. Supreme Court blocked that avenue for relief in Cummings v. Premier Rehab Keller, P.L.L.C, turning its back on our communities and effectively making such discrimination legal.

In its decision, the court guts key civil rights remedies by revoking the right of victims of race, sex, and disability discrimination to recover emotional distress damages — essentially blocking victims from bringing lawsuits at all.

Though often excluded from discussions of the court’s radical shift to the right, the egregious impact of this decision cannot be understated. After Cummings, discrimination cases that cannot show economic harm will never see the light of day. So, providers who turn away people with disabilities because they cannot be bothered to provide accommodations, or doctors who are openly racist to patients, would face no consequence for their obvious discrimination.

In its amicus brief the ACLU, the NAACP Legal Defense Fund, and the National Women’s Law Center highlighted a number of discrimination cases that would be affected by this decision. In each of these cases, emotional distress damages are the primary tool used to seek justice for victims. In Franklin v. Gwinnett County Public Schools, for example, in which a young girl was sexually harassed by her teacher, the injuries required damages only for emotional, not economic, harm. Similarly, in Zeno v. Pine Plains Central School District, in which a Black student suffered racial harassment and assault for more than three years, damages that addressed the psychological harm on the student were the only way to hold the school accountable.

After Cummings, cases like these will be nearly impossible to bring. Here’s what you need to know about this shameful decision.

Jane Cummings, who is deaf and legally blind, was denied services from a physical therapist’s office — Premier Rehab Keller — because of her disability. The office refused to provide Cummings with an American Sign Language interpreter at her sessions, although they were required to under federal anti-discrimination laws.

Cummings was forced to find a different physical therapist, but filed a lawsuit against Premier Rehab for violating the anti-discrimination rules in the Rehabilitation Act of 1973 and the Affordable Care Act (ACA).

In her case, as is the case for many Americans who experience discrimination due to their identity, the lawsuit sought damages for emotional distress. Emotional distress damages are often critical to discrimination cases, compensating victims for lasting harms like anxiety, depression, and post-traumatic stress disorder.

The issue, in this case, was not whether Cummings was discriminated against, but rather what to do in response to the discrimination she faced. The Supreme Court’s answer? Nothing could be done.

For the first time, the court held that emotional distress damages were not recoverable in a private action to enforce anti-discrimination laws. In its argument, the court applied contract law to hold that damages cannot include compensation for emotional suffering since emotional distress damages are not traditionally available in suits of breach of contract.

Despite studies routinely showing that discrimination can cause significant emotional damage, potentially affecting a person’s stress levels, self-esteem, blood pressure, and overall mental health, the court claimed these harms do not warrant a remedy.

The impact of this decision is far reaching. Practically, this decision means that while emotional injury is often the primary, and at times the only, harm caused by discrimination, victims will not be able seek justice.Without emotional distress remedies, many discrimination cases in progress will be thrown out, and future cases will not be taken up by lawyers at all.

While the facts of this case concerned disability discrimination under the Rehabilitation Act and the ACA, its ruling also applies to Title VI of the Civil Rights Act of 1964 (prohibiting race discrimination) and Title IX of the Education Amendments of 1972 (prohibiting sex discrimination). This means the decision will affect kids in schools, people who experience sexual harassment and abuse, and many other victims of race and sex discrimination.

Cummings not only prevents these individuals from seeking justice, but also leaves them at greater risk under the weakened anti-discrimination laws. In the past, the strength of these laws has relied on the deterrent effect of lawsuits brought by private actors. Now, many victims will be unable to bring a case, making it all the more difficult to hold violators of these laws accountable.

With this decision, key wins fought for by civil rights activists like Rosa Parks are stripped away. Rosa Parks suffered no economic harm from sitting in the back of the bus. She lost no job. The bus still took her where she needed to go. But the injury she suffered — the indignity and stigma of being segregated and relegated to the back — was real. Now, the court has effectively told Rosa Parks, “So what?”