The Erosion of LGBTQ+ Rights with Roberta Kaplan and Brandon Trice

Episode Notes

Transcript

Robbie Kaplan:

I do think that there are five votes on this court to continue to keep chipping away at the fundamental right for gay people to be married and to do so under the apices of so-called free exercise. L-G-B-T-Q couples are currently in second class status and probably will remain in second class status for at least the time that this court continues to have the composition it currently does.

Announcer:

That’s our guest on SideBar today. Robbie Kaplan, renowned litigator, trial lawyer and civil rights advocate. Also featured on today’s program is Brandon Trice, a partner at Kaplan Martin SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of law with campuses in Santa Barbara and Ventura. Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts Laine’s Jackie Gardina and Mitch Winick

Jackie Gardina:

Mitch. In the last several years there have been a wave of anti L-G-B-T-Q laws passed across multiple states. The A CLU is tracking 527 anti L-G-B-T-Q bills in the 2024 legislative session alone, and this doesn’t include the laws that have passed in previous years. I haven’t seen this kind of deliberate targeting of L-G-B-T-Q individuals since Hawaii first hinted that it would recognize same-sex marriages and 37 states jumped into action and adopted state laws or constitutional amendments prohibiting same-sex marriage as did the federal government when it passed the Defense of Marriage Act.

Mitch Winick:

Jackie. Today we’re going to talk about just one of those laws. In March, 2022, Florida Governor Ron DeSantis, when he was still considered to be a viable presidential candidate, signed into law the parental rights and education bill, better known as the don’t say gay bill. The bill was one of many aimed at regulating what could be taught in the classroom, what books could be read, and even what K 12 teachers and university professors could say in and out of the classroom. The don’t say gay law faced fierce criticism and immediate legal challenges. Two years later, one of those legal challenges was finally resolved through settlement, giving some relief to the teachers, parents, and students affected by the law. However, this issue is far from being settled as usual. When we dive into these types of difficult constitutional issues, we invite experts to help us better understand these issues. We have the opportunity to speak with two attorneys directly involved in the legal challenges to this law and the settlement. I’m

Jackie Gardina:

Really excited about our guest today. The first one is Robbie Kaplan. She’s renowned litigator, trial lawyer and civil rights advocate with decades of experience in commercial and civil rights litigation. She has won numerous prestigious awards for the legal work and is perhaps best known for her landmark victory in the 2013 Supreme Court decision that led to a nationwide recognition of marriage equality. Only two years later in just the last five years, Robbie won a $26 million jury verdict against the neo-Nazis and white supremacists responsible for the violent unite the right rally in Charlottesville, Virginia, and two separate jury verdicts on behalf of Eugene Carroll against Donald Trump. That resulted in a 5000083.3 million in damages awarded. Robbie Co-founded the firm that is now known as Heckler and Fink in 2017. After a 25 year tenure at Paul Weiss, she recently started a new boutique law firm, Kaplan Martin.

Mitch Winick:

Brandon Trice is also our guest today. He has joined Robbie as a partner in her new firm. He comes with significant experience in high stakes commercial and public interest litigation and has been recognized by numerous publications for his exceptional advocacy and commitments client’s interests. Brandon’s commercial practice spans a broad array of subjects from contract and structured finance to intellectual property and cryptocurrency. He also maintains a thriving pro bono practice including representing the plaintiff’s challenging Florida’s don’t say gay law. Welcome to SideBar, Robbie and Brandon. Thank

Robbie Kaplan:

You so much. Good to be here.

Jackie Gardina:

So I’m going to dive right in with a question about the don’t say gay law and I would guess most of our listeners have heard the phrase, don’t say gay but don’t necessarily understand the constitutional implications of the law or perhaps recognize the personal risks for teachers, parents and students affected by the law. Loda named it the Parental Rights and Education Act, which I think resonates with parents and I’m just going to say the main part of the law so that we can jump off from there. Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade three or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards. So on its face that sounds pretty benign and it also seems consistent with the state’s ability to control school curriculum. Can one of you briefly describe the constitutional infirmities here?

Robbie Kaplan:

Let me start with a very brief introduction and Brandon should take over because he can probably recite him in his sleep. When you said Jackie that most people don’t understand what the law meant and how it pertained to people, that was deliberate. This was a law that was passed by the Florida legislature, signed by the governor intending, I mean, which is pretty crazy for a law. The whole point was to confus people and to make people, parents, teachers, school administrators throughout the state of Florida very afraid of what they can’t should say or do in a classroom and that’s exactly the impact it had. But as Brandon will explain, that created a whole bunch of issues which we ultimately were able to limit the law in how we settled it with the state.

Brandon Trice:

The law was passed as you noted Jackie in March, 2022. We started seeing immediately before the law was even passed and before it went into effect, which was July, 2022, we started seeing immediately the repercussions of the law, which were Florida schools throughout the state. Everyone, anybody connected to a school understood what the law meant. It was to stamp out and silence L-G-B-T-Q identities and speech to not mention them. And you mentioned the particular terms of the law and just to focus in on those, each of those terms, the key terms in that provision, the prescription are not defined, so nobody knows exactly what it means, right? What is classroom instruction? What is classroom instruction by school personnel or third parties? Well, that obviously means not just teachers, school personnel could be librarians, counselors, coaches. In fact, later we would see that the Florida Department of Education passed a rule that made it clear that any educator, which is including any of those people I just defined, are covered by this law.

Third parties, who’s that? It’s got to be somebody besides school personnel, so I guess, or students and parents. And then on sexual orientation or gender identity, I mean that’s one of the most amorphous concepts when you think about, is it a book that describes Romeo and Juliet? Is it a book that describes two same-sex characters? Who knows? Right? So all of that is not defined, but what we do know is that when you look at the legislative proceedings, it’s actually if you go back and watch them, and I think the Florida legislature has now taken them down because of the age, but if you go back and watch them, they’re really, really heart wrenching. They’re very, very clear in what everybody was trying to do here. And so you have the senate sponsors saying that they’re upset because there’s a departure from the core values.

What are the core values? Everybody knows what the core values are. It’s the Republican sponsor. You’ve got Governor DeSantis calling this an anti grooming bill and saying, don’t turn my son into a daughter, and it’s transgenderism being injected into schools and so everybody knows what it’s supposed to do. And as Robbie noted, the point is that it’s a vague law so everybody doesn’t know exactly what’s prescribed by the law, but they know what’s intended and you counterbalance that or you supplement that with a right for any parent to sue. If they have a concern that the law is being violated and they can sue the school districts later on, the state would actually pass a rule that would implement it directly against teachers and educators as well as I mentioned, so they can sue and remove the credentials of teachers and educators if they’re said to have violated this.

It’s a one-sided scheme, so any parent can sue a school district and they can recover damages and attorney’s fees if they recover, but the school district can’t recover anything. So what does all that mean? It creates an environment where everybody wants to tow the line, stay 10 foot pole away from any kind of discussion that might raise somebody’s concerns at a PTA meeting or whoever to raise a concern and then file suit. And the constitutional problems as we lay out in our complaint in the lawsuit were that this violates obviously the due process clause. It’s a vague law, both it’s vague and it empowers people, anybody to sue basically not just your attorney general, your prosecutors, it’s also a First Amendment violation because it’s chilling and self-censoring and stamping out speech. It’s also implicating students’ right to receive information, which the Supreme Court has recognized numerous times over the past four decades that you have a right that schools are supposed to be laboratories of democracy. You’re supposed to protect ideas and people even if they’re not popular in your particular jurisdiction, and it’s an equal protection violation because it’s clearly raising barriers against L-G-B-T-Q students and parents and teachers to have the same educational opportunities. That’s what we saw throughout the process.

Jackie Gardina:

Perfect explanation about the infirmities and I’m wondering if there’s one or more plaintiff stories that really stand out that show the direct harm of the law

Brandon Trice:

Yeah, of course. One of our initial plaintiffs was Zander Moritz, who at the time was a high school senior and he was his school’s class president for every single year. He came out as gay during I believe his freshman year. He didn’t know that his fellow classmates and his community actually would be so receptive to him, but they were, and that was a beautiful thing and he continued to win his class presidency and he’s now at Harvard and he’s doing great things for the community. Shortly after this lawsuit was filed, his class school principal told him that if he mentioned his identity at all during his speech, his mic would be cut. So he didn’t instead used as a euphemism his curly hair, which he has quite curly hair if you go and find Google pictures of him, and it was a masterfully well done example, but that’s one of censorship straight up.

Robbie Kaplan:

The only other thing I would add as the parent of a kid who used to be a young kid is no longer is, but there were a number of the parents who were plaintiffs whose kids were in the lower grades, kindergarten, first, second grade, and they were worried when they went to class could they talk about their families? Could they talk about their two moms? Could they talk about their two dads? Could they draw a picture of their family that more or less accurately route to their kids, but more or less accurately represented who their family members are and what they look like And the idea that kids would be put under that kind of stress is truly listen in my mind, horrifying. And again, I think that’s exactly what the people behind the law wanted to happen.

Mitch Winick:

Let’s drill down a little more on this equal protection constitutional law claim. A number of our listeners are not lawyers. They don’t have a more sophisticated understanding of how does this work. It would seem, and some might say on the face, the law doesn’t actually target a particular group. You could argue that sexual orientation and gender identity apply to everyone. So how did you specifically argue that this law violated the equal protection clause?

Brandon Trice:

Yeah, it’s a very good question and luckily the Supreme Court has in the eighties created a precedent to make sure that legislatures and governors as here can’t allied the equal protection clauses guarantees by having a facially neutral statute. We cited, I think it’s the Greater Birmingham Ministries case in the 11th circuit, but there is precedent that shows that you can look that the motive behind a law. So if the motive is discriminatory, even though the face of the law is neutral under a multifactor test that looks to the statements made in the legislature, including those that I mentioned earlier, the foreseeable impacts of the law, whether there are less discriminatory alternatives, which there certainly were here, there were a number of them proposed and shot down. All of that provides a basis to actually get to an equal protection claim. And I think later on we actually amended and added an additional claim for basically kind of a disparate impact on L-G-B-T-Q people. So either motive or the way that it’s ultimately working. But there are a couple of ways under the Equal Protection Clause jurisprudence to go after laws like this even if they’re facially neutral.

Robbie Kaplan:

And if you think about it practically, no one was going to have any problem with junior high school teacher teaching Romeo and Juliet and their class. I mean that’s about a obviously hetero, maybe a little young, but a heterosexual relationship between a young man and a young woman. But if someone had written a version of that book or some kind of novel new idea, whether it was Juliet and Juliet or Romeo and Romeo, it was very clear that the intention of the people who passed those law is that that should not be taught in the classroom. And so that’s the way, despite what the language said, that’s the way that the law was discriminatory in a way that we believe violates equal protection.

Jackie Gardina:

I want to drill down a little bit on the First Amendment claim, but not as it relates to the right to receive information. Your complaint, you focus primarily on the rights of the students and not necessarily the First Amendment rights of the teachers, at least in the first and Second Amendment complaints. And I wanted to understand that decision better and actually pull together several things that are happening in Florida. Let me put my ultimate question in context. Florida is also passed a law called the Stop Woke Act, and that’s not what critics call it, that’s what the state called it. This law targets in part what can be taught in colleges and university and it is being challenged just like the don’t say gay law is being challenged. And the case was recently argued before the 11th circuit and the state of Florida argued that because public university professors are government employees, they’re engaged in government speech, which means that they can’t counter government positions in the classroom for if the state doesn’t believe in affirmative action, the professor couldn’t speak out in favor of affirmative action. So did you leave the teachers out of the First Amendment argument to avoid tackling this issue?

Brandon Trice:

We did because it is difficult and as you’ll see if you look at the pleadings, even in our case the state argued that government speech, the government speech doctrine applied to the statements of the teachers and they wanted to apply that to the right to receive information. Just to be clear as well, anything that the teacher said basically or anything that the educator said would be government speech and thus would be immune not just from the First Amendment in terms of speech, but I think from equal protection they argued as well. So basically the idea as we pointed out is that according to the state, and this is a really wild theory when you think about it according to the state, as long as I guess your local school board elected officials are entrenched in power or your state electors or entrenched in power, they could have it be the official message of the state in school for young children and for obviously older children that one race is superior to the other or that here one gender or sexual orientation identity right is superior to the other or that women should not be getting jobs, they should be staying in the house.

And according to the state, the only thing that anybody has recourse to is to hope that the electoral process works because the Constitution has nothing to say about that. It’s a very absurd proposition. Obviously we don’t think that it’s supported under the Supreme Court precedent even, and we think that the Supreme Court would hopefully be hesitant to go that far.

Robbie Kaplan:

We thought very carefully about these issues as you understand it from Brandon, and what we didn’t want to do is create worse law. So we picked and chose based on where we were concerned and we thought this was a case where the precedent, especially since they were younger kids, we could create an even worse precedent.

Jackie Gardina:

We’re going to take a quick break to hear from our sponsors when we return. Robbie Kaplan and Brandon Trice will unpack the Florida don’t say gay settlement.

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Mitch Winick:

Robbie, let me ask a little more about the settlement. So in this case, you didn’t get a court order declaring the law unconstitutional. You negotiated a settlement that actually leaves the law in place, but with modifications, can you describe what the settlement does to relieve the harm that you’ve described? And again, for the non-lawyers listening, why use a settlement process and not take this case all the way to trial?

Robbie Kaplan:

In this case, we were then given an opportunity to amend, we amended. We thought sure, all the deficiencies that the district court judge found, he disagreed with that and he dismissed it again. So we were looking at that point at a very long path to get back to the trial court and then ultimately to trial. We would’ve had to go all the way through the 11th circuit. We would’ve had to win at the 11th circuit, which we were confident we would’ve won. But that can take at least a year, two years, sometimes even three years. And then we’d back at square one in the trial court having to start all over and win another motion to dismiss perhaps and start discovery, et cetera. And very, very present front of mind for us was the ongoing harms that this statute was doing to kids, parents and teachers in Florida.

And we didn’t want anyone to have to wait that long to get the clarity that we thought was needed. So in adjudicating, the motion to dismiss state had made a series of concessions about how narrow the law was in their briefs. And when we’re at the 11th circuit, there’s kind of an enforced a compulsory mediation process and as we were about to start that process, we thought to ourselves, well wait a minute, if you guys just admit that everything you say in your brief about this law is true and that the law is limited to a very, very narrow category of things that would solve most of the issues like Xander Beal speak at his commencement speech, what happened in Miami Dade issues about kids being able to draw their families in classrooms that would solve all that. So why don’t we just come up with a document that basically takes all the things that you said in your brief, puts them in category so they’d be easily understandable to people.

And if you agree to that, I think we may have a deal and you should agree to it because you’ve already said it. So that’s actually what happened. I mean there was no grand master plan here came to mind as we were thinking about what to do and as we were going through this mediation process, and I have to say here and you can quote me on this, to their great credit, the lawyers who worked for the state of Florida understood what we were saying, agreed with what we were saying and really cooperated with us in crafting the settlement agreement that we all ultimately reach. There’s a lot of partisan marine corps in our society today. I don’t have to tell you that all I have to do is turn on the tv, but this was really an opportunity, an experience where people who I think hold very different views on the ultimate issues were able to work together and find common ground.

And I remember saying to the state lawyers, I probably said it more than once, and maybe it wasn’t the most diplomatic thing I’ve ever said, but I said to them, guys, you have to be very concerned. Some kid’s going to get bullied for being gay and the school’s going to feel like they can’t do anything to stop it because of this law and that kid could kill himself, could you harm himself? I said, you really don’t want that on your conscience. And they fully agreed. And so that’s how we ended up with the settlement. We ended up with

Jackie Gardina:

You negotiated a really good outcome for the plaintiffs in the Florida case, but meanwhile, 12 or more states have either passed or considering similar bills and others, so are we just playing whack-a-mole with this issue and each state is going to have to be individually litigated or is there a better or different way we can attack this kind of thing?

Robbie Kaplan:

I’m sitting you’re thinking as I’m speaking or about to speak because I’m not sure honestly Jackie what the answer is. I’m afraid to say I think we may be in whack-a-mole territory. The only other way to do this would be to get a ruling from the Supreme Court that clarified to every state what was permitted and what was not. But I don’t think any of us, at least on this podcast are going to be particularly happy about anything. The Supreme Court rules in this area and we know that there are at least two justices, Alito and Thomas who are probably willing to go pretty far in terms of allowing statutes like this to survive. So I mean, I’ve been a lawyer for a long time, nothing is coming to mind to me that would solve the issue other than kind of doing this whack-a-mole process, which is incredibly painful, incredibly hard and incredibly frustrating. Brandon’s got a younger mind. Maybe he’s got an idea.

Jackie Gardina:

You are the optimist. Brandon, what do you got for us?

Brandon Trice:

Robbie’s the realist. I’m the silly optimist I would say. I think if you look at with the recent legislative sessions, and I don’t have them at hand, but I remember seeing I think in Texas or some other where I’m from, some other southern state bills dying in the legislature that would’ve done these things. So my hope I guess is twofold. One is that DeSantis went down in flames, which is great, and he was this big cultural warrior and that message, at least nationally hopefully didn’t resonate and maybe everybody realizes that really this is not the way to go if you’re trying to win votes, I hope. But I think the second point is if it’s whack-a-mole, the honor and everything that we’ve done here is that we’ve been able to create a roadmap for people to hopefully put something together, challenge it. If it means that you’re going to be in litigation, you’re going to try to strike it down at the lower courts.

As Robbie said, going to the Supreme Court might be a problem. You might not want to do that, but if you can it and change the calculus and the ground game and whatever the relevant jurisdiction is, that’s a big deal. If you can get to a settlement as here where it really narrows the scope of the law in a relatively red state, that’s a big deal too. I do think that it’s going to keep happening. That’s just kind of the inescapable fact of our very diverse country. But I do think that also there’s a lot of reason for hope,

Mitch Winick:

Let me stay on this theme but change the direction a bit. States are continuing to pass new laws restricting L-G-B-T-Q rights and there’s no doubt that there’s a concerted effort to overturn marriage equality rights. As an example, Kim Davis, the Kentucky County clerk who refused to issue the marriage license to a same sex couple after the Supreme Court had declared it a constitutional right, she’s back in the news. A court ordered Davis to pay $260,000 in attorney fees and pay the couple David Emal and David Moore a hundred thousand dollars in damages for violating their constitutional rights. However, Davis has appealed the decision claiming that Obergefell versus Hodges, the Supreme Court decision declaring that same-sex marriages a constitutional right was wrongly decided and she now relies on the court’s decision in Dobbs to support her argument. I think the public may be confused. Some think that marriage equality is settled law, but others apparently continue to see an opening to challenge this. Right. As you said, Clarence Thomas has stated in his Dobbs concurrence that the same rationale that overturned Roe should be used to overturn marriage equality. Where do you think we are on this issue?

Robbie Kaplan:

Yes, a lawyer who argued Windsor at the Supreme Court. I actually have a lot of thoughts about this. The short answer is it’s complicated. I think that there are at least two votes on the court who would be willing to overturn Obergefell on the same grounds that the court relied on in Dobbs. Those two votes are Thomas who you just identified and Alito who despite the fact that he wrote Dobbs and said that it doesn’t apply to anything else push came to shove, I think it’s pretty clear that he does. The question of course is where are the other five votes? My gut, and I hope it’s better than a gut, but my strong sense is that there is not another three votes to overturn Obergefell and Windsor and the reason is frankly, a very practical one. At this point in our country, there is not a single American, hardly a single American who doesn’t know and love someone who happens to be gay, who may be gay and married, who may be a colleague or a friend or a relative and certainly has included clerks at the Supreme Court and I think that makes it very hard for the other justices to create a situation either where people who were married are somehow suddenly unmarried, which seems really radical and crazy even for this court or to create a status where there are people like me who already got in before the date I stay married, but if my son were gay and he wanted to marry another guy that would be impossible for him.

It is hard for me to imagine that they would do that, but I have to be honest, it was hard for me to imagine that they would overturn Roe and even harder for me to imagine that they would issue the decision they issued in the United States to be Trump about presidential immunity. So there’s a lot that I find pretty shocking from this court. The question is how shocking are they prepared to be? I do think though, even if they’re don’t overrule Obergefell and Windsor, well lemme say one thing. This is a very wonky point. Obergefell has decided not just on substantive due process grounds, there is an equal protection holding in Obergefell as there was in Windsor. That’s justified the result in both of those cases. So technically speaking, at least not that it matters so much. The Substant due process ruling that was overruled from Roe and Dobbs is not the only leg that Obergefell and Windsor, which was entirely equal protection are standing on.

All that said, I do think that there are five votes on this court to continue to keep chipping away at the fundamental right for gay people to be married and to do so under the auspices of so-called free exercise. And what that means is I think the court has already allowed people who bake wedding cakes to refuse to bake cakes for gay couples, people who create wedding websites to refuse to create websites for gay couples. The next and toughest issue of all is can governmental officials whose job is obviously to comply with the law in the constitution, can those people like Kim Davis refuse to grant licenses to gay couples? I think there are certainly more than two votes to say yes to that. I just don’t know whether there are five. What that would mean is a practical matter is you’d have to know if you’re gay, which clerks you can go to and which you can’t. Just like today, you have to know which bakeries to go to and which website designers to go to. That could also get extended to other establishments that don’t really have any kind of speech involved in what they do. A jewelry store for example, they could say the jewelry stores don’t have to sell wedding rings to gay and lesbian couples. That’s all entirely possible.

GBTQ couples are currently in second class status and probably will remain in second class status for at least the time that this court continues to have the composition it currently does subject to there being court reform. It will probably last for quite some time, but I don’t think the right at least I hope and pray that the right altogether won’t get taken away.

Jackie Gardina:

When we return from this brief break, we’ll discuss the Supreme Court’s presidential immunity case and what effect, if any, it will have on the e Jean Carroll Defamation judgment

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Jackie Gardina:

I wanted to pivot to the Eugene Carroll case and just to give listeners a timeline because it can be confusing with us counsel Eugene Carroll sued Mr. Trump twice, once for defamatory statements in 2019 while he was still president and once for defamatory statements and sexual abuse in 2022 when he was no longer president, she won significant monetary damages in both case and even before the Supreme Court’s immunity decision, Trump had argued that he was immune from prosecution for its 2019 statements and it was rejected by the courts. Does the Supreme Court’s reason immunity decision reopen that question of whether or not he’s immune for his 2019 statements?

Robbie Kaplan:

So the short answer is no, and the reason it’s no is because both the trial judge Judge Kaplan and the Second Circuit in a unanimous opinion written by Judge Cabranes who’s not exactly known as a radical progressive, they both held that Trump at the very beginning of the case waived presidential immunity and the way he did that is in very early briefs when the case first got filed, they basically said, well, you can bring this case again when Trump is no longer president. They were seeking a stay and they say the stay could be lifted when he’s no longer president, which is a pretty clear waiver of some kind of permanent presidential immunity. They didn’t try to raise it again until literally the bottom of the ninth inning in the case and both Kaplan and the Second Circuit said That’s too late. It would’ve completely altered the schedule and Ms. Carroll wasn’t given an opportunity to do the discovery on that, that she should have been entitled to do so in order for the Supreme Court to get there to something I think about all the time.

As you can imagine right now, Supreme Court would somehow have to overcome that waiver argument. One argument that Trump made and that maybe they’ll be open to at least hearing, I hope not hearing, is whether presidential immunity is waivable. Donald Trump argued in our case that it’s not waivable despite the fact that his own brief said, I’m effectively waiving presidential immunity. The argument they made is he couldn’t do that. No one can waive it, no president can waive it. We argued to the contrary that making presidential immunity non waivable actually decreases rather than increases the power of the president because the president should have an opportunity if he wants to defend against he or she wants to defend against a frivolous claim, they should have the choice whether or not to do so and it shouldn’t be kind of locked in stone. So I don’t know, that’s the main issue that the court, if it gets to the court, we’ll have to resolve. There is no other immunity that is not waivable, all immunities are waivable. So it’d be a pretty shocking ruling, but suffice it to say we are prepared. I can hear announce that Pam Carlin of the Stanford Supreme Court Law Clinic is signed on to defend in the smartest lawyer I know is signed on to work with us and defend Eugene Carroll on that issue.

Mitch Winick:

Thank you. If we could go a little broader now we’ve talked a little about judicial performance and we’re trying to divine the tea leaves of what will the Supreme Court do on certain cases, on certain issues. We’ve talked with a number of our guests here on SideBar about the growing concern, about just a fundamental lack of trust and respect for both the current Supreme Court and the federal judiciary, particularly when you see things that appear to be political ideology and influencing the decisions of judges such as Eileen Cannon and Matthew Kme and James Ho, the ethical issues confronting these Supreme Court justices. Now we’ve all been reading about them, but in addition, the court’s continued unwillingness to subject itself to a reasonable code of conduct. These certainly aren’t helping the situation. So as lawyers we have a very seasoned lawyer and a less seasoned optimistic lawyer, which we’re glad to see. Are you concerned about the public’s perception about the trust of the judicial system and what if anything can and should be done?

Robbie Kaplan:

There’s nothing that worries me more than the damage that has been done to the rule of law in our country by Trump when he was president and since he was president. And that destruction or intended destruction of the rule of law takes many forms, some of which is what you were just talking about, kind of judges not following what everyone else in the world thinks is binding precedent. Judges, especially the Supreme Court judges not being willing to abide by the same rules of conduct that apply to any other federal judge on that. I completely agree with Justice Kagan that something needs to be done about that, but far more pernicious, at least in my mind, is this encouragement of an attitude among people that what judges do and what courts do and what the law says doesn’t matter. And it seems to be kind of a growing view, a growing opinions, at least in the MAGA world where it seems commonplace to denigrate judges, to denigrate courts.

I know Judge Kaplan in the Carroll case had received death threats. That’s the world we live in today and it is petrifying to me. I can give you a very good kind of concrete example of it, which is Donald Trump didn’t come to the first Carroll trial, but he did attend the second Carroll trial and during that trial, I think it’s fair to say he acted like a 12-year-old boy, maybe a 13-year-old boy who was unwilling in classroom, who was unwilling to follow the instructions of his teacher. He made fun of the court, he showed contempt for Judge Kaplan. Judge Kaplan would order him to do things. He would try not to comply even during jury selection. Judge Kaplan said to the potential jurors, is there anyone here who doesn’t believe that the 2020 election was fair and Donald Trump sitting in the center of the Courtroom raise his hand to say yes, that kind of conduct, it might seem funny at the time, but it’s incredibly pernicious and our system can’t survive without the rule of law.

Someone’s got to enforce these constitutional guarantees and these legal principles we live by and if people don’t respect the courts as my friend, good friend Dalia Lith says that way lies, anarchy. I mean there’s just no other way to put it. So whatever people’s politics, whatever, lawyer’s, politics, I’ve said this now a couple of times, if you believe in the rule of law, then you have to be against Donald Trump being president. It’s not against the Republican party, but you have to be against Donald Trump because he shows utter contempt for the rule of law, for our legal system and for how it works. And that’s just not something that can last very long because at a certain point everything’s going to get torn down. Okay, that was my very cynical answer. Go ahead Brandon. Let’s hear some optimism. I

Brandon Trice:

Usually do optimism, but I think in this case I just agree completely with you. I think that the politic politicization of the courts, the lack of an application of an ethics code to the Supreme Court, I mean it’s really, it’s been a problem for a long time. I remember when Mitch McConnell pushed through whoever it was because I feel like they’ve done this two or three times now, but the end of the election and everybody’s up in arms and I’m very happy that President Biden is going to try to do something. I don’t know if anything’s going to come of it, but I really do. I agree. I think that our court system, especially at the Supreme Court, I think that there are obviously a lot of fantastic judges in the lower courts who are continuing to do what seems more like work a day, legal application of principles and deciding cases.

But I think that there’s a reason that the public has such a low sense of confidence in the Supreme Court and there are things that could be done, and it’s a real, it’s sad to watch that and to see we live in a Tri-part constitutional system to see the presidency under attack with Trump coming back to see the Supreme Court and another branch losing public confidence. I mean, it really starts to create issues. And I think if I were a justice, I would really, as Justice Kagan has said, and I believe others really, really think it’s not just a matter of I want this, it’s in our best interest to actually do this and to try to reestablish some sort of confidence from the people.

Mitch Winick:

It is so concerning because it isn’t really going to the issue of which decisions are being made, it’s the ethical process to have people trust that even if you lose the system was fair and you’ll have a chance to fight another day. But to use the argument that because I lost the system was wrong, not that the system had a fair opportunity and I just didn’t win. It really sets us off in a very dangerous course. So I appreciate y’all’s comment on that, and it’s something I think as lawyers in our profession, we have to be acutely aware of and push back.

Jackie Gardina:

Let’s turn to something more hopeful. We try to leave our listeners with a call to action or at least a ray of Pope and Robbie, you’ve been on the forefront of the L-G-B-T-Q equality fight for a while, and as someone who came out in the 1980s, I just wanted the opportunity to say thank you because you changed the trajectory of what I thought my future life would look like as you did for my wife. I don’t often get to thank someone for changing my life, and so thank you for that. At the start of the 21st century, we began to see real progress. States started recognizing marriage equality. Don’t ask, don’t tell, fell DOMA was declared unconstitutional. Thank you to Ededie Windsor’s bravery and your hard work and marriage equality was eventually recognized as a constitutional right. Right now, however, it feels like Anita Bryant saved the Children Crusade has been resurrected. And if you don’t know what I’m referring to, Google, Anita Bryant saved the Children crusade to get a sense of the rhetoric that was used in the 1970s. That’s being repeated now. So how do we counter this effort and continue the forward progress we experienced in the early part of the 21st century

Robbie Kaplan:

Vote? Everyone’s got to get out there and vote and make it clear that we do not want to go back to a right-wing Christian nationalist state. I don’t know if we were ever there, but we certainly don’t want to go there and are people who have a lot of popularity in our country politically and otherwise, who that’s what they think. I’m kind of using Nixon’s term the other way. The silent majority of Americans who I think embrace their L-G-B-T-Q friends and neighbors and believe in dignity and believe that a woman should have control over her own body. They got to get out and vote, and it’s hard to imagine an election that could be more consequential than this one.

Brandon Trice:

Totally agree. I think vote it can be hard as a gay person sometimes. I grew up in the middle of nowhere in the South, but be present. As Robbie said, the silent majority really is not what’s being proposed by the right right now. The more that we’re present and that we show the people that we love and that we know that we exist. And I think we’ve come a long way since the no promo homo laws in the 1970s, which is great. But the more we can get out there in the election season and say, hi, I’m here and these are my rights and I’m going to be voting, and I really hope you’re not going to be against me as a human being, the more likely we are to succeed not just nationally in the popular vote, but in the places that are going to decide the election.

Jackie Gardina:

Brandon and Robbie, thank you so much for joining us today on SideBar, but more importantly, thank you for all the work that you’re doing.

Brandon Trice:

Thanks so much for having us.

Robbie Kaplan:

It was really fun. Thank you,

Mitch Winick:

Jackie. This episode was exactly what I had hoped that we would be able to accomplish. First of all, these are very complicated legal issues. They mix state laws and federal constitutional law. They impact different constitutional areas. And yet what I took away from this was a reminder from Robbie Kaplan and from Brandon that the way you protect and progress on these types of issues is really one case at a time, one issue at a time. Understanding them, digging deep, finding the nucleus within the Constitution or within public interest and drilling down on that. So far, the courts have found the opportunity to support that.

Jackie Gardina:

First of all, I’ve never had the opportunity to say thank you to somebody like Robbie who really did change the trajectory of not just my life, but the lives of many L-G-B-T-Q individuals and couples out there. And at the time that she took on the Ed Windsor case, it was a very unpopular decision within the broader Marriage quality Coalition. That wasn’t what they imagined being the first case to go before the Supreme Court. It’s not what they wanted the first case before the Supreme Court to be. And yet she in that decision, paved the way for what would become a feld and marriage equality. And it just, I think, speaks to the intellect and passion. And I’m so thankful that people like Robbie and Brandon and the entire team that works on these issues is on our side.

Mitch Winick:

And yet there is a voice of caution in there, which as we talked about, we’re not certain the direction of the US Supreme Court on issues such as this, what we thought might be established, law has become less established in the eyes of this court, and these issues are issues that we must remain attuned to and attentive to, or we could lose these rights in a heartbeat in one case. I left this episode with really two things that I take away. One, the good battle with warriors such as Brandon and Robbie is still there to be won. On the other hand, every single person who cares about this type of equality in our country needs to stand up and let their voice be heard. And Robbie’s not the first of our guests. That said, that starts out right now, right here with a vote in 2024.

Jackie Gardina:

It’s important to vote not just in that presidential election or in the federal elections, but make sure you’re paying attention to what’s happening at the state level. Because those school boards are going to make decisions about what books can be read and the curriculum that your kids are going to be exposed to. The state judges are going to be making decisions about the meaning of state law. It’s really important that people pay attention to every level of government voting that’s available to them and fully participate. And I want to thank Robbie for that reminder. Once again, I want to thank everyone who joined us today on SideBar, and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebar’s. Social media marketing.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to a legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.