LGBTQ Rights & State Constitutions

The following is a transcript of the panel “LGBTQ+ Rights & State Constitutions,” which took place at Thorne Auditorium, Northwestern Pritzker School of Law, Chicago, Illinois, on Friday, Nov. 7, 2025, as part of the symposium, The Power of State Constitutional Rights. The transcript is edited for clarity.

In this panel, participants discussed how current federal retrenchment on gender rights can be moderated by a state constitutional strategy. Evan Wolfson, a veteran advocate for the the right to marry, explained how states were an integral part of the ultimately successful battle to secure that constitutional protection.

Speakers:

• Akilah Deernose, Executive Director, ACLU of Montana
• Whit Washington, Senior Attorney for the Nonbinary & Transgender Rights Project, Lambda Legal
• Evan Wolfson, Founder and President, Freedom to Marry
• Quinn Yeargain, 1855 Professor of the Law of Democracy and Associate Professor of Law, Michigan State University College of Law

Moderator:

• Kara Ingelhart, Clinical Assistant Professor of Law, Director of the LGBTQ+ Rights Clinic, Northwestern Pritzker School of Law

Kathrina (Kasia) Szymborski Wolfkot: Welcome back, everybody. We’re about to start our second panel of the day, LGBTQ+ Rights and State Constitutions It is moderated by Kara Ingelhart, clinical professor of law. Is that right? Okay, I’m sorry. clinical assistant professor of law. Thank you. clinical assistant professor of law and director of the LGBTQ+ Rights Clinic here at Northwestern.

Kara Ingelhart: Good morning, everyone. Thank you so much for being here. We’ve prepared a pretty lively discussion that I think folks will enjoy and just like the prior panels we’ll accept questions at the end. And the lengthy bios of our esteemed panelists are available to you all online, I believe they have been emailed to you. But to kick us off in kind of a fun exercise to draw folks in, I’ll ask that we start on my far left with Whit and we’ll do names, pronouns, professional affiliation, what state you hail from today, and one fun fact or interesting operative fact of a state constitution that you think the audience might find interesting.

Whit Washington: Thank you so much, Kara. Hello everyone. My name is Whit Washington. I use they/them pronouns. I’m the Eileen Amy Ryan Senior Attorney for Nonbinary & Transgender Rights at Lambda Legal. I am coming here from New York City, from the state of New York. What a wonderful place. And my favorite fact or interesting fact is that — since I really love international human rights, I feel like it just outlines rights and duties very, very well. — and so my fact is that since the Universal Declaration of Human Rights in 1948, 12 state U.S. constitutions, 12 states have created their constitutions. And so just thinking about the relationship between the international rights and states rights, I think, is exciting.

Quinn Yeargain: All right, my name is Quinn Yeargain. He/they pronouns, I have a very long title, but I teach law at the Michigan State University College of Law. I am coming from Michigan, but I grew up in Florida, so there’s no Midwest comradery really. And a fun fact that is relevant for our topic of conversation today is that a number of states, after the passage of the Affordable Care Act in 2010, amended their constitution to include rights to healthcare freedom that were meant to ensure that people could have the right to purchase healthcare from their doctors. And those are still in the states that they were ratified in and not really clear what they mean, but potentially relevant in this context.

Evan Wolfson: Hello, I’m Evan Wolfson. He. I led the campaign to win the Freedom to Marry, which we celebrate the 10th anniversary of our victory this year. (Audience applauding.) Thank you. I’m from New York, and I guess as a relevant fact, I don’t know how fun it is, in our campaign to win marriage, we lost 30+ state constitutional battles before we won nationwide.

Akilah Deernose: Can you hear me? Hi, my name is Akilah Deernose. I am the executive director of the ACLU of Montana. My pronouns are she/her, and I hail from Montana. And my fun, beautiful constitutional fact is in Montana, we are one of the few states that has a right to dignity provision in our constitution. And that provision says the dignity of the human being is inviolable. And I just think that’s so beautiful.

Kara Ingelhart: Thank you so much. My pronouns are she and her and I hail from here at Northwestern. I live here in Illinois. And my fun, relatable fact today is that the Pennsylvania Constitution has a fundamental right to one’s reputation. And it’s been present in the constitution since 1790, but wasn’t really put into place or considered much in constitutional opinions or jurisprudence until the 1970s and most recently in 2014, after challenges to sex offender registry laws have failed in federal courts under every single theory under the [federal] Constitution.

The children’s rights center there in Pennsylvania was successful in finding it unconstitutional under that reputational provision that is listed in the first enumerated right there, right alongside right to liberty, life, property, because it was unconstitutional to presume one would re-offend. And I just think that’s so exciting that having studied all these challenges in other states along sex offender registry issues that disparately impact LGBTQ people, there was this creative challenge in Pennsylvania.

Okay, so to get us started today, in recent years, there has been a plethora of litigations in federal court concerning constitutional rights of LGBTQ persons. And I wonder if folks in the room would be surprised to know that many of the successful theories under the federal Constitution were first tested under state constitutions. And I know that Quinn has done a lot of research and writing on this and that Evan also has some thoughts. So, I wonder if you could kick it off with Whit and Akilah weighing in as well.

Quinn Yeargain: Yeah, so as you know, thinking about LGBT rights specifically in this space, I mean, the decisions that we think about that are impactful here, Lawrence and Obergefell specifically, the ideas that were sort of developed in those cases ultimately came from state courts in a variety of ways, that after losing in the 1980s in Bowers v. Hardwick, a lot of litigants, I mean, litigants were already playing in state court at this point anyway, relying on state constitutional provisions, and they saw a lot of successes.

The law that the Supreme Court upheld in Bowers v. Hardwick was struck down by the Georgia Supreme Court and there was a greater number of successes than failures. They didn’t win everywhere. They didn’t win in Texas, for example, which is how we got Lawrence in the first place. And similarly, you know, litigants I think very wisely focused on state constitutional litigation rather than federal constitutional litigation to try out different theories and so on before ultimately a successful litigation in federal court.

One thing that I’ll note though is that, you know, a lot of the advocates, especially in the marriage equality litigation, relied on theories that were different than what was ultimately embraced in Obergefell. I always feel sorry for my students when we have to read a Justice Kennedy opinion because it’s never quite clear what anything means. You know, is it a suspect class? Hard to say. But a lot of states — a lot of litigants in a lot of states — raise the argument that sexual orientation should be recognized as a protected class. And they also sort of raised “This is discrimination on the basis of sex or gender” argument, but state courts were much more willing to accept the idea that sexual orientation was a protected class.

And a number of the courts ultimately ruling in favor of marriage equality pushed in that direction. And I think that that’s a really important lesson to take away as well, that just because right now it doesn’t seem like a particular theory will win at the federal level doesn’t mean it shouldn’t be tried in the states. If you think about the challenges that we have in trying to recognize, let’s say, gender identity, transgender status as a protected class, well, you’re not going to get the first good outcome from the U.S. Supreme Court.

There’s a lot of difficulties, you know? Unfortunately, including Judge Sutton, a lot of judges have relied on really disgusting and transphobic evidence of detransitioners. And ultimately holding that gender identity is not a protected class. And on the other hand, you know, state courts definitely seem more willing to recognize that. So, I think it’s important to note that even if the courts ultimately embrace a theory, they might do it on less precise grounds than states might do in the first place.

Evan Wolfson: So, Quinn really touched on the first of the two major points that I was going to make in response to this question. And having been in the room and one of those attorneys who did live through that period of our time where we had to shift our attention from the federal courts and the federal Constitution to state courts and state constitutions because of the loss in Bowers v. Hardwick, which I worked on as a young attorney back in my hair days, Quinn’s point is right.

Although, I would emphasize something a little different. I actually don’t particularly think we were so much quote unquote trying new theories. I think we had a bunch of theories and different courts took different theories. And I think one of the major themes to take away from this symposium — which by the way, I want to say I learned a lot yesterday and this morning and really appreciate being included by the organizers. But one of the themes is that doctrine and a lot of what we talk about in these kinds of symposia as lawyers and so on, in my view, is not actually the most important stuff.

And when you go out into the world to make a change, you really need to understand that while those are important tools, and being able to show judges and the public and other decision-makers roadmaps, don’t think it’s the roadmap that’s getting you where you want to go. It’s the other stuff you need to do, which hopefully we’ll talk about in other questions. So, the theories on which we ultimately won in the Supreme Court 10 years ago were pretty much the same arguments that we were writing decades earlier.

And in fact, they were the same arguments that the first wave of marriage litigants in the immediate aftermath of Stonewall were putting forward some differences here and there in different courts, so on. But it’s not like we came up with new theories because we were testing them. It’s just you don’t know what necessarily is going to persuade person X, person Y, court A, court B, which by the way, overlap because courts are people.

So in any case, the first point was that we did have to shift to states and robust attention to Justice Brennan’s call to action only after we were compelled to when we lost in the federal court. The second point I was going to make as an example from the history of our struggle is that, as I alluded to in the first little comment at the beginning in the marriage work, we had a national strategy. Our goal was to win the Freedom to Marry nationwide. And we began moving on that at a time when there was nowhere in the world where same-sex couples could marry.

The strategy had three tracks. One of those tracks was to win in the states. Now marriage, as you know, is regulated in the states. So, we had to do that, but we also knew that we weren’t going to get a national ruling until we had a critical mass of states. And so we had to pursue a variety of work in the states.

And by the way, not just in the courts, but in the legislatures, and ultimately also at the ballot as I alluded to, in order to build that critical mass in the states — which was one of the three tracks of work we needed to do in order to achieve a nationwide victory in the Supreme Court, which underscores the point I made earlier — that even when you’re talking about a litigation-centered strategy, and even when you’re talking about trying to get a win in the Supreme Court, as lawyers, you need the everything else. You need to be paying attention to all of what Dr. King called the methodologies of social change, litigation, legislation, public education, direct action, organizing, fundraising, and I would say even most importantly these days, electoral work.

Akilah Deernose: Yeah, you’re speaking my language. At ACLU Montana, you know, at all the ACLUs, we take an integrated advocacy approach. So that is, you know, with any strategy we have, we take everything into account, but specifically in terms of strategy for us in Montana, we’re very lucky we have an individual rights, protective, modern constitution that our Supreme Court has consistently affirmed as intended to provide greater protections than the federal counterpart. And so that’s allowed us to, that’s allowed us many successes.

And I can say, across the state in district courts, we’ve seen many successes in striking down anti-LGBTQIA2S cases on equal protection grounds using strict scrutiny analysis. And recently we won a preliminary injunction in a gender-affirming care ban, a case at the district court level. And then on appeal, the Montana Supreme Court unanimously upheld our preliminary injunction on privacy grounds and in concurrence, indicated a desire to actually reach the merits of the equal protection arguments as well.

And so it’s a different calculus when you have a wonderful constitution. We’re not so much thinking about, let’s test these theories for the federal to see how things would land at the federal level, but how can we provide the greatest protections to our community members?

Kara Ingelhart: I really appreciate that sort of backwards-looking perspective that you all offered, and the critique of even the underlying question. But what feels really salient to me right now is something that Evan said, which is that litigation strategies or claims that were ultimately successful in various states, or even at the Supreme Court, had actually been brought decades earlier.

And I presume the implication is that they were unsuccessful and perhaps even made bad law in the interim. So, considering that, and considering that many young adults here today with us grew up in an environment with so much representation in the media and almost a reliance interest on either seeing marriage equality having been one, or assuming it would be one in our lifetime, the enormous number of anti-LGBTQ pieces of legislation and policy changes that we are experiencing right now may be kind of shocking and concerning.

And I am wondering if our panel, who might understand, have varying perspectives on that framed as backlash, could weigh in about those kinds of ballot measures in the past as they may be echoing today in these different legislative battles.

Whit Washington: I’ll start. I just wanted to kind of set the scene as we talk about the backlash. I am a millennial, I am biracial, so there was a time when my parents getting married was illegal. That is a right that was won in the courts. I’m queer. I just got married the other week. And so — (audience applauding) Thank you. Like Kara was saying, I always sort of assumed I would have the right to marry. I thought that being biracial meant that we were past racism in the United States. The first president that I voted for was President Obama.

And coming up in that very sweet summer child reality of we’re moving forward and things are getting better, it has been very jarring as we’re seeing this pushback and this backlash. But one of the things that I continue to come back to is looking at the backlash we’ve seen with other movements. When we look at the pursuit of racial equity, we see a very cyclical relationship between federal constitutional law, criminal law, and economics. And where we are in this moment in the United States where there has been so much progress as we speak about LGBTQ rights, as we speak about the rights of Black people, as equity becomes something that is less of a fallacy, people, the scarcity sort of that we experience in the nation creates problems. The white side of my family is Italian. And so my uncles are the first generation of white people in the United States.

And so as my uncles become white and as society sort of expands towards equity, there’s this issue of scarcity around resources. And I think what we’re seeing right now is people who thought they were entitled to things, people who thought they were safe, are really struggling under the scarcity, the economic pursuits of the nation over the past few decades. And so I think the backlash to what we’re seeing specifically with LGBTQ rights is, I don’t have healthcare, why are trans people getting a special right to healthcare? And it’s not about trans people getting a special right to healthcare, it’s about healthcare access, and how can we have these conversations and frame them cross-movement in a way that addresses the needs of all people.

One of the things that I think is exciting and hopeful is the work between Lambda Legal and NAACP LDF. Forty years ago that work maybe wouldn’t have happened of those two organizations working together, but at Lambda we have quite a few cases. And so I think the backlash that we’re seeing is a direct response to the progress and sort of the failure of us to force progress in other spheres. Yeah.

Kara Ingelhart: Evan, I know that you took issue maybe with the word backlash. Do you want to address that question?

Evan Wolfson: Yeah. Whit has teed up my now familiar-to-some-people harangue against the word backlash. In my book, I quote Martin Luther King, who in 1966 gave a speech in which he essentially said I hate the word backlash. And I hate the word backlash. I think backlash is not, well, what King went on to say was backlash suggests that somehow, we did something a little too fast, going too far, et cetera, et cetera, and then there was therefore a response. And that’s not at all what’s happening, King said. What’s happening is there are struggles between contesting visions of what society ought to be.

And just because one side happens to advance and secure progress and achieve changes that are long overdue and necessary doesn’t mean that opposition goes away. It doesn’t mean there aren’t these different views. And the struggle continues. And I think that is a much better way, a much more empowering way, to understand where we are. When I was running around the country building the campaign for the Freedom to Marry, I used to say their backlash began before we even lashed. We are the ones who were trying to change something, something that needs to be changed. And so while I understand the points Whit is making, I don’t actually think what we’re living through right now is a backlash. And to be even more specific about it in this particular moment, and I appreciated the way the previous panel actually ended because it felt like, unlike yesterday, where people were being a little diplomatic, a little opaque, a little legal, a little scholarly, they kind of started talking about it, and I’m going to go one step further because I’m not a real lawyer.

And what we are seeing today is a power grab. A power and wealth grab that in some respects has been decades in the making and has been exacerbated by particular forces and individuals at the moment. That is not a backlash. It is a struggle. And in fact the grab’s going far beyond anything where we were in the trajectory, whether it be of LGBT rights, or of economic equality, or immigrant’s rights, or women’s rights, pick your thing. They have an agenda, they have their goal, which by the way, people are allowed to have, they have tools, which we all have in our society.

And the question is, what are we going to do with our tools, which includes law and doctrine and all that other stuff, but includes all the other methodologies I just talked about to fight for and defend our democracy and the assault that is underway on the democracy in both economic and political terms that includes the use of law, whether by one side or the other.

Now, does that sometimes use as one of the tools available to people, stoking fear, stoking grievance, stoking resentment, targeting individuals, pitting one against the other? Yes, that’s the classic playbook of authoritarians. And it’s the classic characterization of democracy. There are these struggles that happen. But I think what we need to understand is the moment that we’re in and the challenge to this generation and your generation to whatever our disagreements on particular policies, and even for that matter, whether or not people think gay people ought to be able to marry, what we ought to be able to agree on and defend is the basic fundamentals of our democracy.

Including not stealing congressional seats, not flooding the system with money, not suppressing votes, not silencing speech, not deporting people to other countries, et cetera, et cetera. And that is not a backlash, that is an agenda. And it’s an agenda that we urgently must fight. (Audience applauding.)

Quinn Yeargain: I think I like the word revanchism to some extent because it is in an effort to reclaim, in their mind, I think what is lost territory to some extent. I mean, I think the reality is that any struggle for civil rights is going to absolutely face opposition. The opposition is going to continue. And I think state constitutions are actually pretty good examples of that. In many ways, state constitutions are time capsules. They contain what people cared about at a particular point in time, what social movements were going on at a particular point in time. Southern constitutions that were ratified after the end of Reconstruction absolutely entrench the idea of redemption and white supremacy in those contexts, much of which is still in those constitutions today.

In the period after Brown v. Board, there was immediate response. Some states made it such that, you know, they provided a right in their constitutions for children to go to race segregated schools. And those provisions were ultimately taken out, but sometimes not that long ago. After a lot of busing was taking place in the 1960s, California ratified an amendment that specifically required, that prohibited the state from going further than the feds in terms of the minimum that was required in that context. And in the 1990s we got some of the first anti-anti-discrimination proposals in the state constitution context in Oregon and Colorado that ultimately in Colorado led to Romer v. Evans.

And the idea that the state of Hawaii might possibly recognize some form of marriage equality is ultimately what prompted the Defense of Marriage Act and the movement to entrench that in state constitutions as well as the Bush campaign’s desire to mobilize evangelicals in 2004. And so it’s not surprising in many ways that in this moment, you know, that legislators in red states, advocates in red states, might try to put measures on the ballot to ban gender affirming care for minors as a constitutional matter, to ban trans youth from participating in sports, or something like that, because those are issues where public opinion is a little bit more complex and they’re trying to strike while the iron’s hot.

And when you can put something in the Constitution, then it’s there, it takes effort to take it out at that point. Most of the states that had bans on marriage equality still have those bans on marriage equality. And it’s only very recent that those are starting to be taken out. And in some states I have no confidence that they ever will be taken out. Alabama in theory ratified a new constitution in the year 2022. I object to that to some extent because it was largely the same thing, but they still kept their ban on marriage equality in this new constitution.

And so these are ideas that I think will continue to have to be pushed back against, but the opposition I think is always going to be there. And there’s always going to be sort of this give and take, unfortunately. And I reflect to some extent that, I don’t remember if it was 2015 or 2016, that I recall vividly a picture of Donald Trump holding an LGBT flag and emphasizing very tepidly, certainly, that the coalition could include people who were members of the community. And then we’re in this moment. And things can change really quickly, unfortunately, as people see opportunities to take power and to use politically less powerful groups as ways of doing that.

Akilah Deernose: I can go really quickly. I mean, as Quinn just said, actually I was just bragging about how great Montana’s constitution is, but we are one of the states that had a ballot initiative in 2004 that passed. It was anti-gay marriage and it’s still there today. Last legislative session, Zooey Zephyr, our first openly transgender representative, introduced a bill to repeal that language and it didn’t pass. And so, although we haven’t seen any renewed efforts for anti-2SLGBTQIA ballot initiatives, we have seen just this immense flood of anti-2SLGBTQIA animus and in every legislative session, probably for the past three, we’ve just seen this explosion of bills targeting 2SLGBTQIA individuals for discrimination and unfair treatment.

Kara Ingelhart: Thank you so much. I’m so engaged by the panelists that I’m having a hard time keeping my notes here, but I think some of what Quinn said, and some of what Evan said, and a lot of what Whit said, really resonated with me, and really leads to the next question, which is just how important it is to understand the rights of historically marginalized groups as intertwined in federal constitutional jurisprudence as well as state constitutional jurisprudence. I will save my tangent for later in case there’s time, but speaking specifically to due process rights, as LGBTQ rights are built upon a lot of women’s rights, quote unquote “movement victories,” specifically Roe v. Wade is undergirding Lawrence v. Texas and marriage rights and other things. I’m wondering if folks could speak to the Dobbs opinion and what it portended, perhaps in Montana, but other states and whether the concerns that the LGBTQ movement raised based on the majority opinion and the concurrences are bearing out today.

Akilah Deernose: I can start. In Montana, we have our own Roe v. Wade case and that’s the 1999 Armstrong v. State case, which was a landmark, unanimous decision clearly and strongly establishing the right to abortion in Montana. And so, and that case has been repeatedly tested and the holding affirmed, and so much of the fear we saw across the nation, we didn’t experience as strongly in Montana. And actually, you know, whatever fear there was didn’t really come to fruition and as our right to privacy continues to expand, so has our right to abortion access.

And now we have, like, a clear, advanced practice registered nurses are recognized as having the expertise to provide abortion care. And so opposite of what the rest of the state, or what the rest of the nation has experienced, our state continues to affirm the right to abortion, and it’s pretty cool.

Quinn Yeargain: One thing, I mean, Dobbs certainly has an indeterminate effect kind of generally. I mean, the majority, well, from one standpoint, the majority tells us that it has no effect on anything, any of the other rights that the court has recognized in the past. And I think only Justice Thomas is, you know, willing to sort of say some of the quiet parts out loud, which is generally what he does. But, you know, I think it’s worth noting that the interpretive modality favored by the Supreme Court right now is one that many state supreme courts are also sympathetic to.

In the months after Dobbs was handed down, there was a decision from the Idaho Supreme Court on the right to abortion that actually looks very similar to Dobbs, goes through the same sort of history and tradition. Original public meaning of the Idaho Constitution is understood in 1889, and walks through the same kind of analysis.

And on one hand, I think, originalism can and does look different in the states, textualism can and does look different in the states. There’s more text, there’s better history, and records of history, and so on. But there’s also states where they’re not as sympathetic to that particular modality, where history is not sort of the beginning and the end. And they may be more sympathetic to the vision of substantive due process laid out by Justice Kennedy, where it’s the beginning, but it may not be the end at the same time.

And so I think it’s important to note that there are opportunities in the states to certainly push further and some of them are going to feel more constrained by history and tradition than others. I think making the argument regardless is really important because obviously people who are gay and trans have existed and have been recognized as existing for quite some time. And so that history can be relevant in this context as well.

And so the battle has to be fought on those grounds, but then it can also be fought on other grounds, too. But I think recognizing what kind of arguments are going to be sympathetic to a court is a really important part of this at the same time. Some courts are going to care much more about Dobbs than others are.

Whit Washington: So, just to go back to Roe, I think one of the things that folks often don’t talk about or maybe forget about is that there is the piece of Roe that relied on viability of the fetus and what to a pregnant person, what to a gestational individual, how does that already limit a person’s rights? And to bring it back to what I was speaking about before in terms of my interest in international rights, is thinking about the ways in which certain constitutions, specifically thinking about Montana’s right to dignity, that focusing on technological advancement and viability of a fetus sort of fails to account for or think about or consider the dignity of the pregnant person who is carrying. What are the social economic impacts of that?

Again, that’s like an international human rights maxim that we can find in different state constitutions. And so for me, part of the important conversation about Dobbs is not just the right to abortion, but what are we really talking about with these different specific issues? What does it mean to be a person? What does it mean to be a human who exists here regardless of where we’re from, regardless of who we are, regardless of our identity? And how are we thinking about those ideas and pushing them forward within the legal space?

And to me that is the importance or the excitedness or what makes me excited about international human rights being included. Yeah, I think it allows us to have more of these conversations that are very important. What is a name, what is a right to a name, those types of things.

Evan Wolfson: So, I’ll just start by saying, I think it’s an outrage that women today, and particular young women, are being told that they do not have control over their body and their destiny, and in the process being told that by rolling back a nearly 50-year-old precedent that generations had come to absorb and rely on. And I think it’s important to state my values and my view, because don’t kid yourself, that’s exactly what was driving Dobbs. Dobbs is not the product of some deep, better analysis, whether you call it originalism or not, it was the agenda of those who were in power and weren’t able to achieve that agenda, which by the way, was not just a legal action, but was the culmination, or at least a stage in a long-term political campaign, which is a valid thing to do in a democracy. But what the court did was not valid.

And since I’m not always speaking to a room full of law students, I just want to just throw in there and we can debate this later if you want, originalism by and large is a sham. It is a fraud. Yes, we should pay attention to history. Yes, we should pay attention to tradition. Yes, we should pay attention to values and we should be transparent and analytical in putting these forward as we come to results, whether they be political or legal.

Those who want to learn more about how originalism is a sham and don’t want to take it from an amateur, read historians, like for example, Joseph Ellis, one of the leading, if not the leading scholar, of the revolutionary and constitutional period who makes exactly the point I just made and goes on to make the further point that the framers themselves rejected originalism. They did not want generations to be shackled and bound in a garment too small for them, as Jefferson wrote, by some notion of what some people in 1789 or whatever other period, not to mention the fact that we did have a civil war and all these other amendments and all this other progress since, that was not their intention. And if you want to say, well, why does their intention matter? Okay, exactly.

So, when we talk about Dobbs, of course nevertheless, it is also still a reality we all have to grapple with in courts and the conversation have to deal with, it raises threats, it raises issues, it raises things that need to be worked around, and it raises a target that needs to be fixed and changed. So, I agree with the points made that we need to understand it, not just disdain it, but let’s not kid ourselves about what it is and let’s not repeat sort of a kabuki of phoniness about its validity and its intrinsic worth.

Kara Ingelhart: Okay, so on that point, Evan, if we’re not going to pretend there’s inherent logic that we can play on a level playing field at the Supreme Court, perhaps, on some of these theories, is it reasonable, assuming that we can’t do that, is it reasonable then to turn to the states to keep advocating in their constitutional jurisprudence as a next, in the near-term, for LGBTQ rights?

Evan Wolfson: Yeah, and by the way, I’m not saying there’s no logic. I mean, and we should grapple with that logic. We should grapple with history. But we shouldn’t totemize it as, this is the only thing that matters and none of the other things matter, including the values and the way people live today and reliance, et cetera, et cetera. So, yes, we should do that.

And yes, as was made really clear yesterday and today, one of the assets we in America have as we combat the authoritarianism that some are seeking to bring to our country, and the way that others in other countries to which point have been having to deal with and grapple with long before we kind of awoke to our present circumstance, one of the assets among many that we as Americans have, which is why we can be hopeful in this dark moment, that if we do our work and push back and fight and reinvigorate our democracy, we can get to a better place is the states.

We have this federal structure. We have some degree of decentralization. We have different arenas of engagement, just as we have different methodologies, litigation, legislation, public education, direct action, fundraising, electoral work, et cetera. And just as we have a robust civil society and just as we have a threatened and increasingly over-consolidated but still present media and information arena, we have assets that we must marshal as we fight for our democracy and fight to reinvigorate it. And states are a part of that.

Kara Ingelhart: Did you want to start a round of applause?

Akilah Deernose: Oh yeah. (Audience applauding.)

Kara Ingelhart: So, I’m certainly sold on using venues other than the court. However, most of us in here do love to work in that space, or that is the toolbox we bring to this fight. So, Quinn, I’m wondering if you could speak to sort of this cynicism that I hear a lot, which is, okay, we can go to the states to fight for LGBTQ rights under state constitutional provisions, but isn’t there kind of a strong corollary between those states where there might be strong constitutional protections and a lack of bad laws being passed? So, where there are laws attacking rights and there are rollbacks, are those state courts actually potentially favorable venues? Something I ask my students often to do is to draw out the nuance in that cynicism. Could you take us away on that?

Quinn Yeargain: Yeah, I mean, I think to some extent, I think it might be easy to assume red state, therefore red, conservative supreme court. I mean, if somebody knew nothing about the Montana Supreme Court other than how Montana voted in the year 2024 and 2020 and 2016 and so on, they might assume it’s a very conservative court with an originalist bent, especially given that the Montana Supreme Court justices are ultimately elected in open elections.

And yet that is not the case. One might similarly assume that the Alaska Supreme Court is a very, very conservative court and it’s not. And so, I think on either side, sometimes courts can surprise you with their ideology. A lot of that I think is attributable to how are the justices selected. If it is exclusively gubernatorial appointment, then yeah, you might see greater partisanship, especially if there’s less control from the bar, less emeritus election and so on. So, I think they can surprise you, but that can be the case in either direction.

I think the second thing is, first off, make them say no. You know, the claim, the answer to the question is no if the claim isn’t raised in state court because there’s no answer. Make them say no. You can create bad law in that respect, but you can also create good law. And you know, part of this project is building a combination of those things and ultimately showing how the different theories and modalities can work in this particular context. But the answer is no unless you make them actually say no. And the answer is the same regardless at that point.

But I think the third thing is also there’s still value in litigating in what we would describe as blue states with liberal courts that still have, that don’t have the kind of legislation that we’re talking about because states are diverse places for better or for worse sometimes. And you can still have local school boards and county commissions and individual schools that are engaged in transphobic and homophobic practices. And okay, if we’re trying to build a body of persuasive case law and to demonstrate how these theories can work, okay, there’s a school that has some sort of discriminatory policy in a blue state with really good constitutional language and jurisprudence, sue them in state court. Build the jurisprudence. Show how the theory plays out. It can be persuasive to other courts.

It can be tempting, I think, to focus on only the states where there’s state-level legislation at issue, but know we’re giving up opportunities to litigate in that respect. There are unfortunately bad actors in every state. Fortunately, for state constitutional litigators, that provides opportunities and defendants in those states where you might not otherwise have it if the governor is friendly, if the legislature is friendly, and so on. And so I do think it has to be an all-of-the-above approach in that respect.

Akilah Deernose: Well, Quinn, you teased out exactly the dynamics at play in Montana, right? And as I said earlier, over the last few legislative sessions, we’ve just seen a plethora of really bad bills targeting 2SLGBTQIA individuals that have passed, and we’ve seen those bills repeatedly struck down for being unconstitutional under Montana’s constitution. And like you also said, surprisingly, even though we are currently a super red state, our Supreme Court is, our justices are elected in non-partisan races. And so, so far that’s looked like the court being the last line of defense and a strong line of defense against government overreach and state discrimination.

And earlier Evan talked about using all the tools at your disposal. We’re currently, and we’ve been talking about ballot initiatives, we’re currently working on a ballot initiative to keep our court, our judiciary non-partisan. And last legislative session, we saw a slew of bills introduced attempting to attack the judiciary. And so what that means is if we can’t protect the courts, then we’re at risk of no longer being able to rely on our constitution being faithfully interpreted.

Whit Washington: The other piece that I want to talk about is just, what is your strategy? How are you working across movements to address issues that affect different groups maybe similarly? One of the examples I think about is, again, internationally, I’m sorry you all, I’m going to keep on pulling us out there, but thinking internationally and looking at Chile, their approach to equity for queer people and queer family-building was not starting with marriage, it was starting with single people should be able to share health insurance. Like, you shouldn’t have to get married in order for someone you’re living with to be on your health insurance.

And how do we, sort of going back to what I’ve been talking about, how do we think about the ways in which some of these legal maxims, demands, negatively impact how we interact with each other and undercut all of us in accessibility to rights? And so, you know, maybe there is, maybe you’re going to have a hard time going forward with focusing on LGBTQ rights, but how are you working across other movements when, if they’re filing a claim, how are you using an amicus brief strategy? How are you working together to fortify and strengthen these arguments across movement, where even if you can’t get in addressing this issue, you’re able to focus on it, expand it, and find support?

Kara Ingelhart: So, I think I’m going to turn to, did you want to respond again?

Akilah Deernose: I was just going to say co-sign.

Kara Ingelhart: Plus one, yes. Plus two. Turning to some of our audience questions, I think we’ve heard a lot of current here today about coalition-building, working across movements, using other advocacy strategies. And a question I get a lot, I’ll raise just as written, but with any question I pose now that you’ve not seen them, please feel free to take issue with underlying assumptions. So, what would you say to those who argue that it’s anti-democratic to pursue these relatively unpopular policy goals via litigation rather than through the legislative arena?

Akilah Deernose: Would you ask that again? Sorry.

Kara Ingelhart: Yes, of course. What would you say to those who argue that it’s anti-democratic to pursue these relatively unpopular policy goals, LGBTQ rights, via litigation rather than through legislative efforts?

Akilah Deernose: Yeah, I do take issue with that framing because there’s an assumption that your representatives are actually representing the will of the people. And often I can say, in Montana for instance, when really bad bills targeting LGBTQIA2S individuals are introduced, like, without failure, the amount of community members that come to the State House and speak up in opposition to those bills far outweighs, we’re talking hundreds and hundreds to one, outweighs public support of them. And so truly, the issue, or what feels like an issue, at least in Montana, is that representatives are not representing the will of the people.

Evan Wolfson: Well, and I would say American democracy in essence has two major principles. One is, in general, on most things, majority rule. We vote, we elect representatives, we debate, we process, and we make decisions as a people, usually through our representatives, on the basis essentially of majority. An equally essential, equally integral, equally important, equally historical element of American democracy is that there are certain things that are not put up for a vote. In fact, they are expressed in the supreme will of the people, which is as we’ve discussed at length, the Constitution and the constitutions.

And we have courts in part to make sure that each individual is also protected even against the tyranny of the majority, the temporary passions and prejudices of the moments, or just in the exercise of rights and guarantees that we the people have said should adhere in each individual. And so there is absolutely nothing illegitimate about that taking place. In fact, it is exactly what democracy in its truest sense means. Democracy is not just about voting, it’s not just about the forms, it is about the values that are embedded in our constitutions, in our history, and in our aspirations.

Quinn Yeargain: I think I’ll also say that, you know, there’s sort of two things I think are relevant here. One of them is that, you know, civil rights movements have not assumed, let’s stipulate that public opinion polls accurately reflect public opinion, have not always been popular when they have been undertaken. Martin Luther King Jr. was viewed unfavorably by a substantial majority of Americans at the time of his assassination. The civil rights movement itself was viewed unfavorably when it was winning. And you know, certainly public support for marriage equality came very late in the game. And though we didn’t have public opinion polls in the 1800s, I would imagine that slavery at one point had majority support in this country. I would imagine that Reconstruction did not have majority support in this country.

And it’s very difficult, I think, to have perspective on some of those things when we recognize that there’s sort of higher-level commitments that we have. But I’ll actually push back on the assumption that we can assume that public opinion polls are accurate. Anytime that we’re talking about this, it comes down to the question that is asked, and when the question is asked in a way that produces or that necessarily has a very particular framing in mind, then you’re going to get a very particular result in mind. A lot of polls suggest that Americans views of, let’s say trans rights specifically are complicated, that depending on how you ask the question, you might get different answers to the question.

And obviously I don’t think that there should be a relationship between public opinion and rights, but I would push on the idea that it is necessarily unpopular at all depending on what we’re talking about, depending on how the question’s being asked in the first place. It is a really complicated question, though, in terms of the relationship between the public, whatever that means, and rights that are enjoyed by the public. I think about this a lot in the state constitutional space where, yeah, majorities do take away rights with some frequency, not just in the equality context, but in the criminal procedure context all the time. State constitutions originally contained very strong protections of a right to bail in this country. Over time, that has been whittled away with consistent public support every single time.

The question of giving rights to somebody that necessarily take rights away from somebody else, victims’ rights proposals pass overwhelmingly, and those take away the rights of criminal defendants. Rights are not always a zero-sum game. They are sometimes. But the relationship I think is complicated, and I think I don’t want judges, you know, trying to assess what the public wants because that’s not their job. They’re not equipped to do it. The same way they’re not equipped to do history, they’re not equipped to do public opinion, and I don’t know on what basis they would possibly do that. A lot of criminal procedure protections would be unpopular if you put it up to a vote. I don’t know how many people would want the exclusionary rule in actuality a lot of the time. They might want it when it’s gone, but it’s hard to tell. And so I don’t know how much stock I think any of us should put in that.

Whit Washington: For me, like we’re saying, regardless of public opinion, trans people exist and are here. I’m a trans person. I’m sitting at the table regardless of public opinion to deny me right of citizenship, to deny me right of access, to deny me right of life. Regardless of what the public says, I think, is just a wild concept to suggest that I can’t be here. And as someone who, because of my multiple identities, again, as a biracial person, I’m one of the first generations after Loving v. Virginia. I was born, I’m here regardless of public opinion. I have to be able to exist.

And when we fail to address discrimination within a society, we allow people to exist at the margins and get caught up in the criminal legal system. And people are put into prison, people are abused, violently abused in prison. And so to say, should we wait for the legislature to provide rights while people are being violently abused by the state in prison as a result of discrimination just feels like, I guess we could wait for the harm, but what a horrible thing to do.

Kara Ingelhart: I’d love to just add one note and I’m going to try my best to paraphrase succinctly. We had a wonderful speaker on campus last week virtually, Jules Gill-Peterson, a historian based at Johns Hopkins. And in recent writing she has rediscovered that one of the key witnesses testifying in support of the equal protection clause’s passage in the 1860s was a Black trans woman of color, Frances Thompson, who was born into slavery, transitioned while an enslaved person, and ultimately moved to Memphis, Tennessee where she was a victim of the Memphis riots.

And the Memphis riots were so devastating, there was so much violence, murder, rape, and assault, that she as a victim, amongst others, were called to Congress to testify in support of the equal protection clause in the 14th Amendment that didn’t have popular support, to my other co-panelists’ prior statements, and her testimony as a victim of sexual assault during the riots was called out as the very kind of harm that that amendment was trying to get at. So, I know we’re not giving ritualism a lot of credit here necessarily, and she may not have been known to be a trans woman at the time, but she was considered at the time it was passed.

Whit Washington: Just one more thing to [add to] the history of that. When we look at the evolution of equal protection jurisprudence, we start with Pauli Murray. Pauli Murray was a, as we would define them, a non-binary Black individual. And that is who wrote the paper that was heavily borrowed from by Thurgood Marshall in order to create the Brown v. Board of Education legal arguments as it came through Spottswood Robinson during Pauli Murray’s time at Howard Law. And so, you know, to say that trans people and Black trans people are sort of at the center of this evolution of equal protection, and then to say that it is okay for this group of people to be denied that access when they are pioneers of it, again, is just, I’m not talking legally here, but that’s just, come on, we have to admit that doesn’t make sense.

Kara Ingelhart: So, I’ll pivot a little because I think I’d be remiss not to ask this question with Evan in the room. If the Supreme Court reverses Obergefell, again, please feel free to take issue with the underlying question, does it seem likelier that state courts will be more receptive to same-sex marriage equality arguments under state law than they were before Obergefell? Also considering, like Quinn said, many of these constitutional amendments banning same-sex marriage are still on the books.

Evan Wolfson: So, after we won in 2015, we didn’t stop working. And you’ve now heard my mantra of, it’s not just about the courts, it’s not just about the law, it’s not just about legal arguments, et cetera, et cetera. And one of the things we did was work to pass and succeed in passing in 2022 with bipartisan votes in both Houses of Congress something called the Respect for Marriage Act, a law that is now the law. The Respect for Marriage Act says that even were the Supreme Court to regress and to undo the win of the Freedom to Marry, the law of the land would still be that any couple who gets legally married in any state must be respected as what they are, married in every state as well as by the federal government.

So, even in the bad case scenario that you sketched out, we have now achieved, because we kept working and achieved through the political process, a 90 percent safeguard against going back a hundred percent to where we were, 11 years ago, 12 years ago, 30 years ago, 40 years ago. Quinn is correct, that were the Supreme Court to reverse itself, some of the amendments, and many of the amendments, those constitutional amendment battles I talked about at the beginning would spring back. And so in those cases, it might be difficult for state supreme courts under the state constitution to find a way to navigate around the discrimination that was incorporated into the state constitutions at an earlier stage in the conversation.

Even though, because it’s not just about law, earlier this year there was a lot of polling because it was the 10th anniversary, and one of the polls was from PPRI, which found that we now have majority support for the Freedom to Marry in every one of the 50 states. Every one, even the states where the amendments would spring back and there would be discrimination, the people, at least according to the polls, don’t support that because public attitudes changed. People have come to understand something differently than when they voted back in 2004 or whatever, whatever, whatever.

Having said all of that, I would say that of course anything can happen. We see that daily, maybe minute by minute. But I don’t actually think that is what is going to happen. And rather than sit around cataloging all the terrible things that might happen, there’s enough terrible things happening right now that we should focus on the work that’s needed now to preserve our democracy and to reinvigorate it and to defend ourselves. And if we do that, we will protect the gains we won and prevent further bad things that we otherwise might sit around wallowing in and cataloging to no use from happening. So, I don’t think it’s terribly productive to sit around cataloging all the terrible things that might happen because you know what? There’s enough of a call to action right now and let’s get to work.

Quinn Yeargain: So, I’ll add two separate things. One of them is it’s — I’m not saying interesting — I think it’s an engaging, good idea, but it is an interesting question as to what would happen to the constitutional bans on marriage equality given sort of how they are right now. I can’t think of a bunch of examples historically where a state banned something, the U.S. Supreme Court ultimately said that the state must allow it, nothing happened, and then the Supreme Court reversed itself.

I can’t think of a good example of a lot of things like that, at least in the current era of litigation to some extent, in so far as I would make the argument that perhaps they’re zombie amendments at this point and maybe they shouldn’t be given legal force. I don’t know if that would be successful as an argument, but I think it’s a thing to consider in that context.

The second thing I would say is that I think this creates urgency for state legislatures to do something the same way that I would say that it creates urgency for state legislatures to act on creating abortion rights. You know, I guess I would say that in a state with a democratic legislature, I would wonder why they have not acted to remove their state ban on marriage equality. Why they’ve not acted to enshrine abortion rights in their constitutions. It is something that still has value. Even if, for example, let’s say the U.S. Supreme Court recognized the most robust form of trans equality. Let’s say Skrmetti had gone the other way. In that instance, there’d still be holes in that.

After Roe, there were still holes in the right to abortion that states were able to fill a lot of the time because the right to abortion after Roe v. Wade was not universal. It was not all-encompassing, you know? States were not required to extend Medicaid coverage to indigent people with medically necessary abortions. But a lot of states went back and advocates litigated in the states. They challenged themselves and they got separate protections in the states. And so I do think that there’s constant need to do these things sort of in parallel. And so I would ask the state legislatures also, like, you know, what are you doing about this? It’s not all on, it’s totally I think fair to contemplate, it is a matter for the public a lot of the time, but we also elect people to do things. And I think it’s fair enough to ask them why in some cases they are not doing things.

Kara Ingelhart: So, there’s another question here, and I’m just going to begin the assumption. So, if it’s the case that federal law or federal constitutional jurisprudence is trending towards maintaining protections for LGB people, but is rolling back, rescinding, pulling away from protecting the rights of trans, non-binary, two-spirit people, is that same effect happening in the states, at the state constitutional level? Can anyone speak to that?

Quinn Yeargain: Could you repeat that?

Kara Ingelhart: Yeah, yeah. So, if we assume the premise of this question, that it’s the case that federal law and the federal Constitution and the protections there for LGB people are being maintained, but those protections for transgender, non-binary, two-spirit folks are being eroded, is that same phenomenon occurring in the states? Not in Montana, right? And so when I said the slew of bills that we’ve seen come out of the last legislative sessions have been attacking 2SLGBTQIA, it’s really been trans, two-spirit, non-binary individuals. And those are the cases where we continue to succeed, right? And expand existing rights. And so, no. But I don’t know what else is happening across the nation.

Quinn Yeargain: I’m not aware of a huge amount of reversion on that question, largely because state supreme courts for the most part were not, I mean, only very recently to some extent have they even been involved in adjudicating any aspect of trans rights. You know, there’s very few cases in that respect, which is why, I mean, even before Skrmetti was decided, I was, and I remain strongly of the view, that trans rights have to be litigated in the states because there isn’t bad law to push up against even a lot of the time. So, I don’t think that there’s been the same kind of, you know, partial recognition but reversion in other areas.

Whit Washington: Yeah, and I would agree, just looking, again, at the trends of state law around the country, that maybe, I think in maybe the past year or two, there have been some inklings about getting rid of and removing the access to same-sex marriage, but we’ve seen hundreds of legislation, hundreds of bills in order to attack the rights of trans individuals. So, I think it’s different in the states.

Evan Wolfson: Well, this seems a good time to repeat that there does need to be litigation in appropriate arenas strategically chosen. There does need to be legal analysis both in the profession and in the decision-maker circle and in popular advocacy and popular understanding. But the real problem is a political problem. If we had different people in power, and we almost did by very narrow margins in many places, not everywhere, we would not be seeing the kind of legal assault, let alone theoretical constitutional threat that you’re asking about. So, it’s not to say that the other work isn’t important, but the most important work is to reclaim political power.

Kara Ingelhart: I think I would agree that I’m not seeing the leaps forward and then the rescission in the trans rights space in various states. I think that there are more state supreme courts weighing in on trans rights questions then in past, but for the first time. So, I think there’s, nod at me if I’m right, Nathan and Ken, that the state supreme court of Missouri is still deciding whether or not the challenge to the gender-affirming care ban there is viable under their constitution.

Evan Wolfson: Yeah, just to add one other point, we, in the decades-long campaign to win the Freedom to Marry, in the beginning and in the middle, and even in the late-middle, early end, we lost case after case, battle after battle, far more than we won, though the beachheads we won because we kept building on them and working allowed us to overcome those losses. Of all the court cases that ruled on marriage, my favorite passage came from the case we eventually won in Utah. Ruby red Utah. And in the Utah marriage decision, late in the game, the judge had my favorite sentence. And that sentence was, it’s not the constitution that has changed, what has changed is our understanding of what it means to be lesbian or gay. And that sentence, the judge in a court case encapsulated how we won, which of course involved litigation, that’s why we were in front of the judge, but was about politics and persuasion and tenacity and engagement, using the tools, including litigation.

Akilah Deernose: And I just want to piggyback on that because in the Armstrong case that I referenced earlier, similarly, there’s this, I mean, the whole decision is so beautiful. So, if you’re a nerd, which I think you all are, I suggest you read it. But there’s a line about our right to privacy being meant to evolve to meet the ever-evolving desire of the government to overreach. And so I think because there’s that concept already out there, right? That our right to privacy is supposed to be strong enough because we know that, one, public opinion changes, and that two, the state is something that you consistently have to monitor and guard against overreach.

And so even though maybe at the time when the state constitution was created, they weren’t thinking about trans rights, but they were thinking that this privacy right needs to be able to meet the needs of the day, which ours has, right? And so I think, yeah, exactly the same. And that’s what we see in our ability to continue to protect trans rights. And in these cases, it’s also an opportunity to educate, right? If a lot of people, and I think you said this, Whit, have been in company with trans people, non-binary, two-spirit people have always existed, whether or not other people in community knew of their existence or understood.

And we’re still at this place where many people don’t understand. And so you can use litigation as a tool to educate the bench, but also educate the wider community. And that’s part of the work that we need to do in order to stop the discrimination.

Evan Wolfson: Just to add onto that, for decades we said, and it became kind of this truism that people kept repeating that the number one factor in changing people’s understanding or changing people’s views on gay people at the time is what we were saying, is knowing someone who’s gay. And Bill Clinton actually cited that supposed view, supposed wisdom, as he signed into law, the so-called Don’t Ask, Don’t Tell provision in instituting or solidifying military discrimination. I thought at the time, you know, you’re saying that knowing someone who’s gay is going to change things and you’re signing a law, Don’t Ask, Don’t Tell. But as we dug deeper into our experience and into the actual sociological research, we found that it wasn’t exactly true.

It wasn’t knowing someone who’s trans or gay, or pick your population, it’s conversation. It’s a conversation either with someone from one of those identities, or with a trusted other person like you, the person who’s having the conversation about the question. Conversation is the chief engine of change. And so if we translate that into all those other methodologies I talked about, you know, A, there is conversation, but B, there is advocacy, there’s persuasion, there’s legal writing, there’s litigation, there’s legislative engagement, there’s storytelling. This is how, in a democracy, we achieve change.

And we went from, and I will say in this room full of law students, you know, I wrote my law school thesis on why we should have the Freedom to Marry. I wasn’t the first one to think of the idea. I was writing about that first wave of cases that had all lost in the early '70s, one of which lost in the Supreme Court. And I was saying in 1983, gasp, that we should not take that no for an answer. At that time when I wrote that paper, we were at 11 percent support through all the work that we have just discussed, including, but not only litigation, and state court and battles, et cetera, et cetera, state constitutional battles, state ballot measure battles. In all that work over the decades, we went from 11 percent to 63 percent when we went into the Supreme Court again for the win 10 years ago. And support has continued to grow since, because we haven’t stopped the conversation. This is how we reclaim our democracy.

Kara Ingelhart: I’d love to end on that last note from Evan, that we can all do work in our professional lives to advocate for the communities that we most identify with or feel. Most are imperiled by the legal system, but every single day, we can have conversations with people we know or we run into to try to dispel misunderstandings and try to find common ground and connection. And I know that we’re living at a time where we’re more isolated than ever in our phones or in our social groups, but I strongly encourage people to walk away from today with that charge. So, with that, can we please give a warm thank you. (Audience applauding.)