Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex. This month, we feature Louise Melling.
Louise Melling is a Deputy Legal Director at the ACLU and the Director of its Center for Liberty, which encompasses the ACLU’s work on reproductive freedom, women’s rights, lesbian gay bisexual and transgender rights, freedom of religion and belief, and disability rights. In this role, she leads the work of the ACLU to address the intersection of religious freedom and equal treatment, among other issues.
Louise has established the ACLU as a national leader in opposing the use of religion to discriminate and in supporting state advocacy teams that have pushed back legislation that would permit discrimination in the name of religion. In her time as Director of the Center for Liberty, the ACLU has pursued a program of litigation, advocacy, and public education campaigns that culminated in the 2015 Supreme Court decision recognizing the fundamental right to marry for same-sex couples.
Students’ Questions Answered
The students at Essex were really excited to have the opportunity to send in their questions to Louise, to learn more about her work in the field of human rights.
Q: To what extent will US domestic law be able to guarantee reproductive rights across the country? What should be done to establish equal reproductive rights across all states?
A: There are only two ways to establish reproductive rights across the country: either with an act of congress or a decision of the Supreme Court. To see advances at the federal level, we need to elect a Congress and a President that believe in equal reproductive rights – the President because the President nominates federal judges and justices, and signs or vetoes bills. The congress because we need both bodies if we are to pass legislation and we need the senate to confirm or block judicial appointments.
What’s critical to success is for people to press for changes in our law – to pass the Women’s Health Protection Act, to provide a backstop against state abortion restrictions; to lift prohibitions on federal insurance plans (for low-income people, for the military, federal prisoners, and more) covering abortion care; to invest in solutions to our very high maternal and mortality rates, particularly for Black Americans.
It can be hard to build the essential momentum, even though people support the change, given the many challenges before us now.
Q: What are the chances of the US Supreme Court ruling against the Trump administration’s moral exceptions in the case of Little Sisters of the Poor v Pennsylvania? How significant is it to the right to healthcare?
A: There is a many years battle in the United States as to whether employers can refuse to provide insurance coverage for contraception because of religious objections. I think of this as a question of whether the employer can make its employees pay for its religion by denying the benefit.
The Trump Administration adopted rules providing that all employers with religious objections could refuse to provide the coverage, and virtually all employers could refuse if they had moral objections. The ACLU has consistently opposed such exemptions. While we support religious freedom, it is our position that religious freedom doesn’t mean the right to harm others, including by discriminating.
Challenges to the Trump rules went to the Supreme Court. The Court ruled this month that the rules were authorized by the Affordable Care Act. Significantly, the Court did not reach arguments that the Religious Freedom Restoration Act, a federal statute, authorizes — or requires – exemptions for those who object to providing the coverage. In other words, the Court did not rule that the federal protections for religious freedom require that the government exempt employers that objecting to providing coverage.
That means we live to see another day and the litigation and public debate – as to whether the constitution or federal statutes protect the right to discriminate – continue.
Q: How effective was the Supreme Court’s ruling in 2015? Did the challenges that same-sex marriages face change since then?
A: Most of the ACLU was gathered in a conference room on the day the decision was announced. There were screams and tears of joy. The decision said that same-sex couples were no longer treated as strangers in the eyes of the law; gay and lesbian relationships were no longer treated as other and illegitimate. That alone is profound.
There are still challenges to the right, the one pressed most often takes the form of religious objection. Businesses continue to go to court to argue, for example, that, because of their religious objections, they must be able to refuse service to couples seeking to buy a wedding cake, rent a facility for a wedding reception, or hire a photographer. That issue is still unresolved in the courts.
But public acceptance of the right to marry is great, and the right to marry rooted in the constitution. And now this year the Court recognized our federal statute barring discrimination based on sex to bar discrimination against LGBT people. The fight is still on but the progress is real.
Q: Your decades’ long work with ACLU has involved work on women’s rights and LGBTQ rights. Since President Trump was inaugurated in 2017, there have been multiple policy reversals including the rescinding of transgender student advice published by the Obama administration. How do you think the human rights community can contribute to the continuing fight for the rights of women and LGBTQ individuals in the current political environment and given the rollback on recent protections?
A: There are so many ways to contribute. In the United States, its critical to support the right to vote – under attack now – and to get out the vote; it’s critical to engage as deeply with state elections as federal, as so many of our rights are decided by state governments; it’s critical to organize, ideally with a long-term vision. The LGBT and guns rights movements in the US are both seen as having made significant strides toward their aims because they kept their eyes on a long-term goal. And we need to organize, as much as possible, across movements, to support one another. Many of us, after all, carry multiple identities, and we aren’t free if we aren’t all free.
Q: During the COVID-19 pandemic, the world has witnessed a drastic increase in domestic violence, the diversion of resources away from vital women’s services and governments avoiding the enforcement of existing obligations. For example, the UK government has suspended mandatory reports on the gender pay gap for businesses. How has the COVID-19 pandemic and lockdown measures affected (or exposed) existing gender inequalities in America and how has it impacted upon your work on women’s rights (in America specifically)?
A: The pandemic has exposed so many inequities. Who has access to health care. Who has access to a safe living environment. Who has access to safe working conditions. Who is paid a living wage. Whose work has not been valued. Who has access to paid sick leave.
When ‘stay at home’ orders first went into effect, my hope was that we would emerge appreciating teachers, nannies, home health aides, cleaners – all the women doing the work that has for so long been undervalued and unseen. Really, I’d hoped we’d all appreciate how interconnected our lives were and that we need to change policies to value those so essential to the economy and the functioning of so many families.
The US now is so divided – over basics like wearing a mask – that I am less optimistic that we come out of this with bigger hearts and commitment to robust reform. The exception – I hope – will be with Black Lives Matter and a commitment to dismantling white supremacy. There is a conversation – and action – unlike anything I remember in my adult life.
Q: As the George Floyd and Black Lives Matter protests have gathered international attention, how do you believe civil rights activists can ensure that their actions continue to gain momentum to trigger real institutional change (in America specifically, given your work with ACLU)?
A: George Floyd’s killing was a turning point. It was a public lynching. It woke up much of the nation. And it came after many other police murders, and much activism around policing – in schools, in the streets – and the consequences for Black people in particular. The fire caught. Now, in short order, we are seeing change that was long resisted – confederate monuments falling, police budgets being reduced, police removed from schools, chokeholds banned.
The key is to keep up the heat. The police and Trump Administration seem to be offering ample fodder to ensure that’s the case.
Q: After pivotal human rights rulings, historically there has often been resistance to implementation and repercussions in the community as witnessed with the Brown v Board of Education case. Since the Supreme Court’s landmark ruling in 2015, have you witnessed a backlash against LGBTQ rights? How have you overcome such obstacles in your work?
A: Change is hard. I sometimes say that big advances are seismic cultural shifts. It’s so essential for those who have been excluded, and jarring for those who have been used to one way of being. And there will always be resistance.
When we talk about resistance to LGBT rights, we say that Plan A was to resist any advance. Resist marriage. Resist non-discrimination rules. Once we achieved those advances, Plan B was to punch holes in the gains with religious exemptions. Plan C is now to foster transphobia. In the states at the moment, we see that with an effort to pit rights for transgender people against girls and women, often in sports.
No change will stick without cultural change. The LGBT movement worked hard to humanize gay and lesbian couples before pressing big court cases (even learning that the most compelling spokesperson was a parent talk). We worked hard to highlight the humanity of transgender people before the court issued its decision this term, with Laverne Cox and my colleague Chase Strangio leading the way. (As one example, I highly recommend a video of celebrities reading a letter of Aimee Stephens to her employer when she came out. Aimee’s case – against her employer for firing her for being transgender – went to the Supreme Court.)
And then you just can’t give up. You just can’t.
Q: Controversy is central to a robust democracy. If we begin to let the government censor our views to make it more comfortable or less controversial, we set ourselves on a destructive path. When President Trump, used derogatory and demeaning comments about women, protest photos and statements were removed or blurred. When the state machinery supports the stifling of freedom of expression and the right to protest, what can we do to make our voices heard and hold the powerful to account?
A: I’m answering this on the Saturday on which John Lewis died. I would say, we can read his words or those of other leaders who never gave up, and keep on protesting and speaking out and summoning others with our words and actions to join.
Q: The constant debate on a woman’s right to choose vs. the Right of the unborn foetus in the area of Abortion Laws, has been a long journey both for the Courts and ACLU. There are differing opinions when it comes to the Court of Appeals and the Supreme Court; how do we as change makers bring about consistency in this process at all levels and influence the courts on these important issues?
A: You only want consistency if the good result is the one that will prevail. Consistency among all the courts right now would require a decision or more decisions by the Supreme Court; it is only that court that can establish the law for the nation. But it is best not to run to that Court now on issues of abortion.
Activists can work to build public support for the issue that is in court – even before there is any litigation. It’s simply easier for the courts if they aren’t being asked to be too far ahead of the public. And a decision is more likely to stick, and do the work we want, if the public momentum is moving toward increased support for the right.
Q: What do you consider to be your greatest achievement and your biggest failure or regret throughout your career?
A: I played a key role in getting the human rights community to see the harms of religious refusals (the calls for a right to refuse to comply with an anti-discrimination mandate), to recognize their implications across movements, to mobilize to oppose them, and to develop ways to communicate their harms, including calling them out as demands for a license to discriminate. The work we did, beginning in 2010, before the issue was hot, laid the groundwork so we were ready when the issue percolated and able to achieve some significant and early wins.
I also am tremendously proud of a case I won in New Mexico, where the State Supreme Court held that the state constitution required the state had to cover abortions under its Medicaid program. (Medicaid is a government insurance program for low income people. The decision rested on the state equal rights amendment, which means that the court understood the connection between access to abortion and gender equity, and it has made a real difference to the lives of so many in that state.
I am almost sixty. I worked in the ACLU’s reproductive freedom project for eighteen years. I worry that I might end my career with the right to an abortion in a worse place than when I began my career. It is deeply troubling. It’s troubling because of what that says about how my country thinks about gender justice. And it’s troubling because of how hard people’s lives continue to be, if we struggle over the right of something so fundamental as whether or not to have a child.
Q: Finally, what advice do you have for human rights students about to start out on their careers?
A: Keep a sense of humor to help carry you through challenging times and to celebrate the wins. Keep your eye on the long-term goal. Listen. I have learned so much, and have so much yet to learn, from my colleagues. And find joy, always.