Human Rights at Home Blog

Protest Through Singing This Fourth of July

by Prof.  Margaret Drew, UMass Law School

 

Independence day has been significant primarily for the powerful minority group.  White Men.

BIPOC, LGBTQ+, women, and religiously oppressed and those oppressed by religion are waiting for their time.  Should these populations want a day that is meaningful for them, it may be that they will need to create their own.  Freedom Day would celebrate when the government and those with power and privilege leave women and others alone to control their own destinies. 

Freedom from oppressors is all that is asked.  That day will come.  United we will succeed.  Don't miss the opportunity to write, revisit or recreate protest songs.

You may be interested in listening to both an interview on protest songs and songs being written or re-written after the Dobbs decision. 

You may have heard Reina Del Cid's protest to the tune of My Country Tis of Thee.  An earlier version by W.E.B. Du Bois may be found here.

And for an indigenous protest song written during the 1960s listen to Buffy St. Marie. This is her anthem to decolonization, updated in 2017.  

 

 

 

 

 

"Get Your Knees Off Our Necks"

Law professors and moviegoers may associate the phrase "Get your feet off our necks" with Justice Ruth Bader Ginsberg.  In both the documentary "RBG" and the movie "On the Basis of Sex" we hear Justice Ginsberg say "I ask no favor for my sex; all I ask of our brethren is that they take their feet off our necks."  Many readers may not appreciate that Justice Ginsberg was quoting Sarah Grimke, a 19th century southern abolitionist who relocated to Philadelphia along with her sister, Angelina.  Following the end of the Civil War, Ms. Grimke turned her attention to feminist issues.  In that context, she said: "But I ask no favors for my sex. I surrender not our claim to equality. All I ask of our brethren is, that they will take their feet from off our necks, and permit us to stand upright …”

The current demonstrators incorporated the slogan substituting "knees" for "feet".  Appropriately so.  While the Grimke sisters were dedicated abolitionists, who themselves were criticized and threatened, they did not promote equality between Blacks and Whites.  Paraphrasing Sarah's statement expands the work of the Grimke sisters.  The revised phrase is apt.  Not only does the Floyd video show the perpetrator's knee as the deadly weapon, but more reports have surfaced supporting that police have used the same deadly technique on other black people.  

Demonstrators using the paraphrased words of Sarah Grimke to reflect current reality may finish what the abolitionists left undone.  Enslaved people were legally freed but then the law was used to continue their enslavement in different forms.  Equality and equity were never achieved.  Now is the time to make this right.

Gender Equality & Human Rights in the Time of #MeToo

By JoAnn Kamuf Ward, Director, Human Rights in the US Project & Lecturer-In-Law, Columbia Law School. While 2018 has been dubbed the year of the woman, it is abundantly clear that misogyny is alive and well.  And, in order to address the underlying structures and beliefs that allow gender inequality to persist requires transformation.  It requires a cultural shift.   Treating acts of discrimination, harassment, and assault on an individual basis is simply insufficient.   It is not enough that four women have announced they are running for President.  It is not enough that more than 100 women were elected to Congress. As advocates fighting for passage of the ERA and US adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) have long recognized, the laws and institutions we have in place are insufficient to guarantee women’s equality.    Tarana Burke founded #MeToo to challenge the underlying beliefs that allow assault and harassment to occur.  It is about reshaping relationships of power and privilege. As she has so clearly stated, “we need to dramatically shift a culture that propagates the idea that vulnerability is synonymous with permission and that bodily autonomy is not a basic human right.”   It is not surprising that Tarana Burke has defined eradicating gender-based violence as a human rights issue.  Human rights are about systems change.  They are about centering the experience of those most vulnerable to violations.  And, they are about a new, affirmative approach to addressing discrimination and inequality.   That includes changing how each of us views our individual and collective responsibilities to address gender discrimination and inequality.  It requires reshaping gender and racial stereotypes that have led to current dynamics of power and privilege. We must reform institutions to eradicate implicit and explicit bias.  We must also change the laws in place to prevent and respond to acts of discrimination, assault, and harassment in order to foster more collective accountability.    In the United States, the predominant paradigm for dealing with sexual harassment, gender-based violence, and discrimination has historically been largely individual. Yet, focusing on individual perpetrators and isolated incidents falls short of the transformative change that is required.   As Dahlia Lithwack wrote in September, it is a myth “that patriarchal systems, based in entrenched power, and supported by others in power, could be brought down by individual, brave women.”   Systemic change is essential, because the system in which we operate has failed women. #MeToo has also made clear that the challenges we face are societal and institutional. And, in response to the movement, global human rights actors have spoken out.   UN experts have recognized the need for more concerted action to address the oppression that exclude women from positions of power in order to eradicate all forms of gender discrimination, and there is increasing guidance on core elements of a rights-based approach to gender-based violence and harassment though law and policy grounded in human rights principles, building off existing standards found in principles of CEDAW.  There are also calls for more specific international protections for women in the workplace.  And examples of how U.S. workplaces can be transformed through human rights-based worker driven solutions, such as the Fair Food Program. As already reported on this blog, across the U.S. local advocates, law school clinics, and local governments are also looking to human rights to foster broader based approaches to advancing gender equity, focusing on eradicating negative stereotypes, and identifying and addressing barriers to equality for women and girls by adopting CEDAW principles. CEDAW offers a framework to foster gender equality and eliminate discrimination against women. It defines what constitutes discrimination against women broadly to encompass laws and policies that negatively affect women’s human rights, and identifies pathways to more equitable opportunities and outcomes in a wide range of areas.  According to CEDAW, governments must:   Affirmatively identify the factors that perpetuate inequality, and take steps to mitigate them.   Take measures to eliminate discrimination against women in political and public life, including to ensure women’s right to vote and to hold public office.  Foster equal access and non-discrimination in relation to education, employment, and health.   Adopt policies to advance women’s economic stability, including equal pay and paid maternity leave.   Address violence against women through efforts to identify its root causes, focus on prevention, and prioritize redress for survivors.   In order to ensure equal enjoyment of rights for all women, CEDAW calls for policies that reflect the ways that individual’s multiple identities, including her race, nationality, disability, age, as well as economic and social status, impact her enjoyment of rights, and calls for targeted and culturally-appropriate solutions.    Recognizing the power of these principles, the umbrella organization of state and local civil and human rights agencies – many of whom are charged with resolving complaints of individual discrimination –  passed a resolution in support of CEDAW in 2017 – calling on its members to support municipal, county, and state-wide policy efforts to affirm the rights of women, eliminate all forms of discrimination, advance gender equity, and promote and affirm the principles of CEDAW.  This is an important foundation for a more affirmative, proactive approach to advancing women’s rights and achieving the transformative change that is needed.    To cultivate action, and support state and local government human rights implementation, the Columbia Law School Human Rights Institute recently published a Gender Equity Toolkit.  Developed in partnership with the Leadership Conference on Civil and Human Rights and UNA-USA, the toolkit highlights specific ways that state and local agencies and officials can utilize CEDAW to promote and protect women’s rights, including: fostering human rights education and awareness; assessing the status of women through a gender analysis; and incorporating CEDAW principles into local law and policy.  The Toolkit offers a menu of activities that can strengthen protection for women’s rights, and serve as a springboard for local, city, and state efforts to break down the barriers that continue to impede full equality for women, and redefine relationships of power and privilege.

Papers of Importance - Smith v. Pavan

By Justine Dunlap

“It’s only a piece of paper.” This phrase can used to minimize the value of something. It has been leveled against court orders which can be, it is true, just a piece of paper unless they are enforced. However, it is the piece of paper that grants the right of enforcement, which is very significant indeed.

It would be easy to set forth a list of single pieces of paper that confer important rights. One such piece that would likely make that list is a birth certificate. And it is this particular paper that was the focus of a rather under-the-radar U. S. Supreme Court decision issued on the last day of the 2016-2017 term.

In Smith v. Pavan, the Court, in a Per Curium opinion, reversed the Arkansas Supreme Court in a case that involved whether Arkansas could refuse to list a non-biological same-sex parent on a birth certificate. The state Supreme Court had held that the 2015 U.S. Supreme Court decision in Obergefell v. Hodges did not mandate that the State of Arkansas place both same-sex parents on their child’s birth certificate. Specifically, the Court said that although the Obergefell decision mentioned birth certificates once, the reference was “related only to its observation that states conferred benefits on married couples.”

The U.S. Supreme Court, in reversing, seized on language in Obergefell’s next paragraph which declared that by not being permitted to marry, “same-sex couples have been denied the constellation of benefits that the states have linked to marriage.” Citing the same language that the Arkansas Supreme Court had referenced, then dismissed—the mention of birth certificates as one of the “governmental rights, benefits, and responsibilities” that are conferred on married people-- the U.S. Supreme Court in Pavan wrote that the mention of birth certificates in Obergefell was “no accident” as several of the Obergefell plaintiffs had challenged a state’s refusal to list a same-sex parent on a birth certificate.

The Pavan per curiam opinion explained that its Obergefell case required that now-married same-sex couples could not be denied that “constellation of rights” attendant to marital status, thus refusing to countenance the Arkansas Supreme Court’s narrower view.

This case was issued on the last day of a fairly quotidian term, a term without many cases of import, intentionally planned for fear of a four-four split. Interestingly, by the time of this decision, the Court was again at its full nine-justice strength.

This “opinion of the court” included a dissent authored by Neil Gorsuch, the Court’s newest member. And as Supreme Court watchers began their tradition of assessing the upcoming term in late September and early October, the Pavan case has received a bit more attention for exactly that reason. Since one of the cases identified as a major case of the term, the colloquially named gay wedding cake case, is set to be argued on December 5th, people are looking to this dissent as one way of assessing Justice Gorsuch’s Supreme Court persona.

Regardless of what Pavan says about Justice Gorsuch, is important for what it tells us about what the Court meant in Obergefell. Pieces of paper are important; they confer rights, and obligation, and status.

Keep the Cameras Rolling: Photographers Lose in Challenge over Refusal to Service Same-Sex Weddings under Minnesota’s Human Rights Act

by Prof. Jeremiah Ho

 Last week, a federal district court in Minnesota ruled against plaintiffs Carl and Angel Larsen, and their videography company, TMG, in their suit against Lori Swanson, Minnesota’s Attorney General and Kevin Lindsey, the commissioner of Minnesota’s Department of Human Rights.  In Telescope Media Group, Inc. v. Lindsey, the plaintiffs had lodged a “pre-enforcement challenge” to the prohibition on sexual orientation discrimination under the Minnesota’s Human Rights Act (“MHRA”).   The plaintiff couple had goals to expand their company into the wedding video industry with a specific purpose of using their wedding video services to express their opposition to same-sex marriages and reify the Christian belief in opposite-sex marriages.  To effectuate their goals, they intended not to produce wedding videos of same-sex couples and also intended to post a message on TMG’s website explicitly denying service to same-sex weddings.  That posting would have violated Minnesota’s Human Rights Act with civil penalties up to $25,000.  In addition, Minnesota legislatively recognized same-sex marriages in 2013.  Hence, their challenge arose. 

Because the plaintiffs had yet to produce wedding videos and actively discriminate against same-sex couples, justiciability issues were raised.  But for the most part, the district court dismissed those challenges by the defendants and ventured into the merits of the plaintiffs’ claims, which were based under a constitutional free speech, right of association, religious exercise, unconstitutional conditions, equal protection, and due process arguments.  

The challenges under the First Amendment were untenable.  For the free speech argument, the court ruled that the MHRA was a content-neutral regulation and did not violate the plaintiffs’ free speech rights under intermediate scrutiny.  The court also found that the plaintiffs had not shown a viable claim under the compelled speech doctrine.  Furthermore, the court pronounced that the plaintiffs’ textual challenge against the MHRA for terms that they claimed would lead to unbridled enforcement discretion was not credible.  For the right of association arguments, the court quickly dismissed the notion that the MHRA inhibited the plaintiffs’ right to expressive association to an extent that would be constitutionally dangerous.  The court also dismissed the plaintiffs’ religious exercise challenge by noting that the MHRA was a regulation of general applicability.  Lastly, the plaintiffs’ attempt to restate their First Amendment claims under an unconstitutional conditions argument was seen as merely repackaging what the court already had not favored. 

Under the Fourteenth Amendment, the plaintiffs’ equal protection and due process arguments also crumbled—mostly because of unsustainable characterizations of their status or similar repackaging of their free speech arguments. 

Already, the most well-noted excerpt of the ruling has been Chief Judge John Tunheim’s analogy that the plaintiffs’ desire to turn down same-sex clients by posting such a disclaimer on their website was “conduct akin to a ‘White Applicants Only’ sign.”  No doubt, this lawsuit is likely to be appealed.  The plaintiffs’ attorneys, from Alliance Defending Freedom, are part of same team representing the wedding cake maker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, to be argued at SCOTUS this fall.  That case involved a professional wedding cake provider’s refusal of business to same-sex couples. 

Post-Obergefell, after the extension of marriage to same-sex couples, these cases present an interesting moment for sexual orientation antidiscrimination as the leveraging for full equality by LGBTQ individuals is occurring not only against First Amendment religious exercise arguments but also—now more fully it seems than before—within free speech challenges as well.  I write this not because such challenges weren’t previously couched in free speech theories, but because of the recent headline resurgence of free speech controversies.  At the same time, the national debate on free speech is taking place on campuses and elsewhere in the media, these cases are quickly being cemented into the larger national dialogue—sometimes violent—over identity, our collective history, and ultimately our national values.  Free speech is being used to prop up a reality that does not comport with democratic principles of liberalism and respect for human rights.  Rather, free speech is being used to reinforce a world of hierarchy stoked by false nostalgia and collective insecurity.

Not to mention, the vindication of the MHRA in favor of same-sex marriages and weddings in Telescope Media Group, Inc. v. Lindsey has historical resonance for LGBTQ rights.  Minnesota was where one of the earliest episodes of the struggle for marriage equality took place.  In 1970, two gay students from the University of Minnesota, Richard Baker and James McConnell, applied for a marriage license in Minneapolis.  After their application was denied, they sued.  Their litigative failures, from state to federal courts, unfolded all the way to SCOTUS where the Court in 1972 summarily dismissed their suit, Baker v. Nelson, with just one line: “The case is dismissed for want of a substantial federal question.”

Whatever outcomes are ahead, I don’t think we’re in one-liner territory anymore.

You may read the judgment here.  

 

 

 

 

The Windsor Legacy

by Prof. Jeremiah Ho

Last week, Edith Windsor passed away at 88.  As many will know, she was the plaintiff in U.S. v. Windsor, in which the U.S. Supreme Court overturned section 3 of the Defense of Marriage Act and consequently turned the recognition of same-sex marriages entirely back to the states.  It was a significant gay rights decision in 2013, both substantively and incrementally for the recognition of marriage equality that would come ultimately in 2015 with Obergefell v. Hodges.  Upon finding that DOMA offended constitutional federalism principles, Justice Kennedy’s decision in Windsor focused on the discriminatory objectives behind DOMA—how it was legislated from a place of animus toward same-sex couples and how that animus demeaned the dignity of those couples and their families.  These observations go to the substantive importance of Windsor.  In an incrementalist role, Windsor was a remarkable decision on the federal level because it was a rare moment in which same-sex relationships received a leverageable amount of respect.  That leverageable amount was expanded two years later when the Court extended the fundamental right to marry to same-sex couples.  Today, as the national LGBTQ rights consciousness moves toward sexual orientation antidiscrimination, Windsor remains as an important decision, providing insight as to how the law ought to regard sexual minorities.         

Before marrying in 2007 in Canada, Edith Windsor and Thea Spyer, had been a couple since 1963 and were formally domestic partners in New York City in 1993.  After their 2007 marriage, they lived in New York City, where New York state legally recognized their Canadian marriage.  When Spyer passed away in 2009, she left her entire estate to Windsor.  However, because DOMA had not recognize same-sex marriages on the federal level, Windsor was not qualified for the marital exemption under federal estate taxes.  After paying $363,053 in estate taxes from the IRS, she subsequently sought a refund and was denied the request.  Windsor then brought the suit that would eventually invalidate section 3 of DOMA.   

Like many of the canonical Supreme Court cases that have effectuated significant social changes, such as Loving v. Virginia, Brown v. Board of Education, Lawrence v. Texas, Roe v. Wade, specific human dilemmas and situations first prompted individual legal action.  But once such legal action solidified into actual changes in the law, the human drama at the core of these cases often fade into the background as the legal significance of precedence take on a bigger life—shaping and re-shaping doctrine, and gaining general applicability to American life.  That is both the benefit and the curse of constitutional legacy.

I didn’t know Edith Windsor personally.  What I know of her and her marriage to Thea Spyer are wrangled from what is now considered constitutional lore.  I once observed her from afar at a New York City Pride Parade:  she was waving her arms, smiling, and greeting onlookers like me on a very sunny summer day.  Her importance to the modern American gay rights movement is immortal.  While she herself was mortal.  Beyond the Windsor decision, what I have learned from her is something she had been often heard saying: “Don’t postpone joy.”

Within the long journey to the marriage equality decision in Obergefell, timing has been important.  As Bowers v. Hardwick had shown in 1986, the judicial and cultural mainstream had not yet accepted the idea of positive treatment of sexual minorities.  It wasn’t until after the visibility of sexual minorities had changed for the betterdid we start to see pro-gay decisions, such as Romer v. Evans and Lawrence v. Texas at the Supreme Court.  And yet, Edith Windsor’s mantra of not delaying joy did not stop her and Thea Spyer from experiencing what being human meant rather than delaying the joy of existence by waiting for injustice to be overturned.  In this way, Windsor demonstrated the balance between personal activism and progressive incrementalism, and the complicated ways in which sexual minorities have had to negotiate their personal experiences with the forces under the law that have act against them.  What she showed me was that while the law might still be processing what is the right thing to do, it is imperative not to give up on a moral and meaningful existence.       

Thank You, President Trump

Over the past few decades, I wondered what it would take for women to mobilize.  Increasingly, we have been disrespected.  "Bitch" has come into conversational use.  Music is often disrespectful toward us and we continue to bear the brunt of familial care-giving and then penalized for it in the workplace.  Why were women being so passive?  We failed to pro-actively and collectively use our power.

Donald Trump's election as president mobilized women in a way unseen in the history of this country, if not all of the world?  Did the election of a sexual predator clarify women's vision of the future for us and our planet?  We were able to mobilize to protect the next and future generations of daughters and sons.   Because the next generation is in danger of living in a regressive and more repressive culture, women rose.  

Solidarity among sisters world wide informs us of the power of women.  Women are out of the closet in a way unseen in America.  Never before has the international sisterhood organized so effectively.  

Trump is not the only one threatening our rights.  Government supports institutional oppression while the media mostly portrays women in ways that diminish their autonomy and existence, whether you are a presidential candidate or a single mom trying to make it through the day.  

Our obligation to future generations and to the planet is to keep our power in play for good.  The out of sync patriarchal world has resulted in violence, corruption and spiritual decline.  The time is now for women to restore the world to balance, not eliminate the masculine, but bring the masculine and feminine into balance.

None of this would have happened but for the actions of Mr. Trump.    

 

 

Gender Equality and Mr. Trump

Martha Davis reported recently on a meeting between Donald Trump and the new UN- Secretary General, Antonio Guterres.  Part of Guterres' agenda is to support gender equality.  Only a few weeks ago, the Trump transition team requested that the State Department provide information on "gender-related staffing, programming, and funding."  The memo that was sent to State specified areas of inquiry, which included efforts to end gender-based violence as well as efforts to promote women's participation in political and economic spheres. 

This request raises concerns about what motivated the inquiry.  Are these global programs likely to be eliminated in the coming years- or maybe months?  The only other agency of which the new administration made a similar inquiry was seeking the names of those at the Energy Department who support measures to halt climate changes.  Energy refused to release the names.

Senator Jean Shaheen of New Hampshire, responded "I pledge to work with the incoming administration to advance policies that support and protect women and girls world wide, but I can promise that if the next administration intends to role back programs designed to lift women up, it will very quickly meet stiff opposition in the Senate."

Much will be revealed when we know how then President Trump responds  to the Women's March on Washington.

 

SCOTUS TO HEAR N.C. TRANSGENDER CASE

In what should prove to be a much watched and written about case, the Supreme Court accepted for hearing the North Carolina case Gloucester County School Board v. GG.   Gloucester was discussed earlier on this blog, when the case first appeared on the Supreme Court docket requesting a stay of implementation of the N.C. law that would have permitted high school students to use the bathroom of the gender with which they identify.  We reported that Justice Breyer wrote at that time that his vote for a stay was a "courtesy".  Befuddled at the time, it appears that we may discover the meaning of this "courtesy".  The case involves, in part, a Department of Education's interpretation of Title IX that funding recipients must provide separate facilities and treat transgender students consistent with their gender identity. 

This case will be significant in the LGBT journey to assign sexual identity suspect classification status. 

In the meantime, an Illinois Federal court decided that Title IX protects transgender students in using locker and bathrooms in accordance with their gender identity.  Of significance is the Judge's finding that "High school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs".  This language may be important to SCOTUS' decision if constitutional claims are made.

 

 

 

 

Justice(s) in Alabama

We reported in August, 2015, about the resistance of some Alabama judges to implementing Obergefell.  Behind the resistance was Chief Justice of the Alabama Supreme Court, Roy Moore. Last week Justice Moore was suspended from office by the Alabama Court of the Judiciary for refusing to implement same sex marriage and instructing others not to issue marriage licenses.  Justice Moore was suspended without pay and he will remain unpaid for the next six years.  At the end of the term,  he will be too old to run for chief judge.  

Moore used a tired rationalization to disguise his prejudice toward those who are not heterosexual.  He argued that the federal government lacked authority to direct the states.  In suspending the judge, the judiciary noted that Moore was not the only one on the Supreme Court who disagreed personally with the Obergefell ruling.  But, the Court noted, "This Court simply does not have the authority to reexamine those issues."

This is the second time Moore has been relieved of his duties as a Supreme Court Justice.  In 2003 he was  removed from office for refusing to remove a replica of the ten commandments from display in the State Judiciary building.  Again he claimed that he was not bound by federal authority.

In a culture where judges and others refuse to accept federal authority, we can only imagine the depth of difficulties encountered by advocates when advancing global human rights principles.

Can Only Straight Women Be Infertile in New Jersey?

 By Jeremiah Ho 

 A new lawsuit has been filed just within the last few weeks in federal district court in New Jersey by one unmarried and two married lesbian couples against the state’s insurance commissioner.  Essentially the lawsuit is challenging the definition of the word “infertile” under the New Jersey’s insurance mandate for covering medical expenses associated with the treatment of infertility.  The case, Krupa v. Badolato, is an interesting one as the plaintiffs, who wish to conceive but are biologically infertile, are claiming that the current definition of “infertility” excludes them from coverage under the insurance mandate because of the definition’s reliance on “unprotected sexual intercourse” in determining who could be infertile. 

The plaintiffs claim that for qualifying as “infertile” for infertility treatment coverage the phrase “unprotected sexual intercourse” requires them to show that they had heterosexual intercourse for the requisite period but then failed to conceive.  They assert that such showing is problematical because it requires them to prove a failure to conceive after having unprotected sexual activity with male partners, which, as lesbians in committed relationships, was an impossibility to them.  As a result, each couple claims they were denied coverage for infertility treatments that ended up costing tens of thousands of out-of-pocket dollars.     

But beyond the monetary harms asserted in this lawsuit, it is the dignitary spin on sexual orientation and reproductive rights that catches one’s attention.  The plaintiffs here are suing under 14^th Amendment equal protection and due process theories.  First, the equal protection theory articulates that “because infertile women in same-sex relationships do not engage in sexual intercourse with men, they are left with no way to qualify as ‘infertile’ under the statute and its implementing regulations in order to trigger the mandate.”  Therefore, they situate themselves as a class discriminated based on their sexual orientation.”  The plaintiffs’ due process theory relies on a violation of their reproductive rights.

On either theory, the implications of furthering constitutional litigation over sexual orientation seem eminent.  From reading the complaint, the plaintiffs are plainly seeking leverage on the equal protection claim from Obergefell v. Hodges, but bringing the issue of protections for sexual orientation further by claiming suspect or quasi-suspect classification.  The case seems to raise questions about orientation that are ripe for a revisit after Obergefell.  First, the sexual conduct of these lesbian couples—or their lack of a type of sexual conduct—in regards to showing heterosexual unprotected sex conjures that old distinction of conduct that was permissible and conduct both expressive of sexual identity and simultaneously punishable by the law (remember Bowers v. Hardwick or its reversal in Lawrence v. Texas?).  Here, it seems possibly that the couples were punished for not having heterosexual sex in order to prove infertility.  Additionally, as it appears in the complaint, it seems as though they were punished for wanting to exercise their abilities to treat their infertility in order to improve their chances for having children (remember Griswold, Casey, and Wade?).  The connection from the plaintiffs’ scenarios and to burdens on reproductive rights could lead to an expansion of existing constitutional caselaw. 

But also, the plaintiffs seem to want a declaratory relief directly over sexual orientation, which they are possibly couching as something beyond conduct—rather “a core, defining trait that is so fundamental to one’s identity that a person may not legitimately be required to abandon it (even if that were possible, which it is not) as a condition of equal treatment.”  Other than immutability (as articulated above), the plaintiffs preliminary balance the other three Frontiero factors as well in favor of determining sexual orientation as a protectable trait under the Equal Protection Clause. 

Already the case is garnering attention from news outlets.  This will be a lawsuit to watch.

 
 

Orlando - A New Perspective on the Anniversary of Obergefell

By Jeremiah Ho

For the LGBTQ community, this weekend and the coming week will mark the one-year anniversary of Obergefell v. Hodges, the pro-gay marriage equality decision by the Supreme Court.  What’s interesting about this moment one year later is not the focus on same-sex marriage controversy.  Such “controversy” is hopefully becoming more and more of a non-starter in terms of legality, but not, on the other hand, in terms of its evolving meaning. 

In a year’s time, we have seen county clerks protesting against issuing marriage licenses; we have seen judges refuse to obey the SCOTUS ruling.  But those dissident voices toward same-sex marriages are gradually quelling.  The rights movement for LGBTQ individuals then shifted toward antidiscrimination and more notably restroom accommodations for transgender people.       

The Orlando gay nightclub shooting—as interpreted by many—takes the moment past discrimination and into the realm of hate.  Because of this shift, it is also a moment to add nuance to the existing sense of what dignity means for the LGBTQ community.  Among other purposes, Justice Kennedy’s opinion in Obergefell and Windsor used dignity for drawing a sense of similarity to opposite-sex relationships. In that way, as I’ve written before in other HRAH posts, using dignity to draw similarities between LGBTQ and non-LGBTQ relationships had a side effect of subordinating LGBTQ identities and diversity in order to achieve the legal argument that denying same-sex couples the right to marry was an act of inequality.     

But post-Obergefell and post-Orlando, the examination of LGBTQ lives can take on dignity in a different way that should affect the next time dignity is used in legal argumentation within a forum to push forward for antidiscrimination.  This carries insight for furthering the notion that gay rights equals human rights.

Recently, whenever a terrorist incident has occurred, the ultimate response beyond the vigils and the symbolic tributes has been to return to normal and persevere with our daily lives as quickly as possible:  to ignite courage and fly on an airplane, to walk past fear and ride to our jobs on the subway, to rally at extraordinary feats of human athleticism at national sporting events.  But what does “return to normal” mean to the community that was attacked two weekends ago, a community that has historically and intrinsically called itself “queer”?  A lot can be said about living normally:  LGBTQ people too take the subway.  They fly on airplanes as well.  They can be known to tailgate.  “Normal” means something deeper here.  “Normal” is gay, queer, straight, and everything in between.  “Normal,” in effect here, means dignity. 

Indeed, this act of terrorism targeted people, in part, because of who they were.  In the middle of Pride month, this gunman held up and silenced his victims in an act of terror—perhaps intending to bully us all—LGBTQ or not—collectively into a closet, where we hold ourselves hostage so no one sees us, where we trade who we are for the false sense of safety, where we can’t dance openly on a Saturday night.

But since the tragedy, the opposite of fear has been the massive response for recognizing gay people and what it means to have this shooting take place at a gay nightclub—a historically safe place for LGBTQ people to be “normal,” to be who they are.  Going forth, this moment should reveal that while people were targeted for their differences, the result was that their humanity and dignity—what we all intrinsically share—was ultimately placed on assault.  Somehow, this side of dignity must be retained in our legal minds and infuse the cases that rely on dignity to further articulate the rights of LGBTQ people.          

For the LGBTQ community, this weekend and the coming week will mark the one-year anniversary of Obergefell v. Hodges, the pro-gay marriage equality decision by the Supreme Court.  What’s interesting about this moment one year later is not the focus on same-sex marriage controversy.  Such “controversy” is hopefully becoming more and more of a non-starter in terms of legality, but not, on the other hand, in terms of its evolving meaning. 

In a year’s time, we have seen county clerks protesting against issuing marriage licenses; we have seen judges refuse to obey the SCOTUS ruling.  But those dissident voices toward same-sex marriages are gradually quelling.  The rights movement for LGBTQ individuals then shifted toward antidiscrimination and more notably restroom accommodations for transgender people.       

The Orlando gay nightclub shooting—as interpreted by many—takes the moment past discrimination and into the realm of hate.  Because of this shift, it is also a moment to add nuance to the existing sense of what dignity means for the LGBTQ community.  Among other purposes, Justice Kennedy’s opinion in Obergefell and Windsor used dignity for drawing a sense of similarity to opposite-sex relationships. In that way, as I’ve written before in other HRAH posts, using dignity to draw similarities between LGBTQ and non-LGBTQ relationships had a side effect of subordinating LGBTQ identities and diversity in order to achieve the legal argument that denying same-sex couples the right to marry was an act of inequality.     

But post-Obergefell and post-Orlando, the examination of LGBTQ lives can take on dignity in a different way that should affect the next time dignity is used in legal argumentation within a forum to push forward for antidiscrimination.  This carries insight for furthering the notion that gay rights equals human rights.

Recently, whenever a terrorist incident has occurred, the ultimate response beyond the vigils and the symbolic tributes has been to return to normal and persevere with our daily lives as quickly as possible:  to ignite courage and fly on an airplane, to walk past fear and ride to our jobs on the subway, to rally at extraordinary feats of human athleticism at national sporting events.  But what does “return to normal” mean to the community that was attacked two weekends ago, a community that has historically and intrinsically called itself “queer”?  A lot can be said about living normally:  LGBTQ people too take the subway.  They fly on airplanes as well.  They can be known to tailgate.  “Normal” means something deeper here.  “Normal” is gay, queer, straight, and everything in between.  “Normal,” in effect here, means dignity. 

Indeed, this act of terrorism targeted people, in part, because of who they were.  In the middle of Pride month, this gunman held up and silenced his victims in an act of terror—perhaps intending to bully us all—LGBTQ or not—collectively into a closet, where we hold ourselves hostage so no one sees us, where we trade who we are for the false sense of safety, where we can’t dance openly on a Saturday night.

But since the tragedy, the opposite of fear has been the massive response for recognizing gay people and what it means to have this shooting take place at a gay nightclub—a historically safe place for LGBTQ people to be “normal,” to be who they are.  Going forth, this moment should reveal that while people were targeted for their differences, the result was that their humanity and dignity—what we all intrinsically share—was ultimately placed on assault.  Somehow, this side of dignity must be retained in our legal minds and infuse the cases that rely on dignity to further articulate the rights of LGBTQ people.          

For the LGBTQ community, this weekend and the coming week will mark the one-year anniversary of Obergefell v. Hodges, the pro-gay marriage equality decision by the Supreme Court.  What’s interesting about this moment one year later is not the focus on same-sex marriage controversy.  Such “controversy” is hopefully becoming more and more of a non-starter in terms of legality, but not, on the other hand, in terms of its evolving meaning. 

In a year’s time, we have seen county clerks protesting against issuing marriage licenses; we have seen judges refuse to obey the SCOTUS ruling.  But those dissident voices toward same-sex marriages are gradually quelling.  The rights movement for LGBTQ individuals then shifted toward antidiscrimination and more notably restroom accommodations for transgender people.       

The Orlando gay nightclub shooting—as interpreted by many—takes the moment past discrimination and into the realm of hate.  Because of this shift, it is also a moment to add nuance to the existing sense of what dignity means for the LGBTQ community.  Among other purposes, Justice Kennedy’s opinion in Obergefell and Windsor used dignity for drawing a sense of similarity to opposite-sex relationships. In that way, as I’ve written before in other HRAH posts, using dignity to draw similarities between LGBTQ and non-LGBTQ relationships had a side effect of subordinating LGBTQ identities and diversity in order to achieve the legal argument that denying same-sex couples the right to marry was an act of inequality.     

But post-Obergefell and post-Orlando, the examination of LGBTQ lives can take on dignity in a different way that should affect the next time dignity is used in legal argumentation within a forum to push forward for antidiscrimination.  This carries insight for furthering the notion that gay rights equals human rights.

Recently, whenever a terrorist incident has occurred, the ultimate response beyond the vigils and the symbolic tributes has been to return to normal and persevere with our daily lives as quickly as possible:  to ignite courage and fly on an airplane, to walk past fear and ride to our jobs on the subway, to rally at extraordinary feats of human athleticism at national sporting events.  But what does “return to normal” mean to the community that was attacked two weekends ago, a community that has historically and intrinsically called itself “queer”?  A lot can be said about living normally:  LGBTQ people too take the subway.  They fly on airplanes as well.  They can be known to tailgate.  “Normal” means something deeper here.  “Normal” is gay, queer, straight, and everything in between.  “Normal,” in effect here, means dignity. 

Indeed, this act of terrorism targeted people, in part, because of who they were.  In the middle of Pride month, this gunman held up and silenced his victims in an act of terror—perhaps intending to bully us all—LGBTQ or not—collectively into a closet, where we hold ourselves hostage so no one sees us, where we trade who we are for the false sense of safety, where we can’t dance openly on a Saturday night.

But since the tragedy, the opposite of fear has been the massive response for recognizing gay people and what it means to have this shooting take place at a gay nightclub—a historically safe place for LGBTQ people to be “normal,” to be who they are.  Going forth, this moment should reveal that while people were targeted for their differences, the result was that their humanity and dignity—what we all intrinsically share—was ultimately placed on assault.  Somehow, this side of dignity must be retained in our legal minds and infuse the cases that rely on dignity to further articulate the rights of LGBTQ people.          

For the LGBTQ community, this weekend and the coming week will mark the one-year anniversary of Obergefell v. Hodges, the pro-gay marriage equality decision by the Supreme Court. What’s interesting about this moment one year later is not the focus on same-sex marriage controversy. Such “controversy” is hopefully becoming more and more of a non-starter in terms of legality, but not, on the other hand, in terms of its evolving meaning.

In a year’s time, we have seen county clerks protesting against issuing marriage licenses; we have seen judges refuse to obey the SCOTUS ruling. But those dissident voices toward same-sex marriages are gradually quelling. The rights movement for LGBTQ individuals then shifted toward antidiscrimination and more notably restroom accommodations for transgender people.

The Orlando gay nightclub shooting—as interpreted by many—takes the moment past discrimination and into the realm of hate. Because of this shift, it is also a moment to add nuance to the existing sense of what dignity means for the LGBTQ community. Among other purposes, Justice Kennedy’s opinion in Obergefell and Windsor used dignity for drawing a sense of similarity to opposite-sex relationships. In that way, as I’ve written before in other HRAH posts, using dignity to draw similarities between LGBTQ and non-LGBTQ relationships had a side effect of subordinating LGBTQ identities and diversity in order to achieve the legal argument that denying same-sex couples the right to marry was an act of inequality.

But post-Obergefell and post-Orlando, the examination of LGBTQ lives can take on dignity in a different way that should affect the next time dignity is used in legal argumentation within a forum to push forward for antidiscrimination. This carries insight for furthering the notion that gay rights equals human rights.

Recently, whenever a terrorist incident has occurred, the ultimate response beyond the vigils and the symbolic tributes has been to return to normal and persevere with our daily lives as quickly as possible: to ignite courage and fly on an airplane, to walk past fear and ride to our jobs on the subway, to rally at extraordinary feats of human athleticism at national sporting events. But what does “return to normal” mean to the community that was attacked two weekends ago, a community that has historically and intrinsically called itself “queer”? A lot can be said about living normally: LGBTQ people too take the subway. They fly on airplanes as well. They can be known to tailgate. “Normal” means something deeper here. “Normal” is gay, queer, straight, and everything in between. “Normal,” in effect here, means dignity.

Indeed, this act of terrorism targeted people, in part, because of who they were. In the middle of Pride month, this gunman held up and silenced his victims in an act of terror—perhaps intending to bully us all—LGBTQ or not—collectively into a closet, where we hold ourselves hostage so no one sees us, where we trade who we are for the false sense of safety, where we can’t dance openly on a Saturday night.

But since the tragedy, the opposite of fear has been the massive response for recognizing gay people and what it means to have this shooting take place at a gay nightclub—a historically safe place for LGBTQ people to be “normal,” to be who they are. Going forth, this moment should reveal that while people were targeted for their differences, the result was that their humanity and dignity—what we all intrinsically share—was ultimately placed on assault. Somehow, this side of dignity must be retained in our legal minds and infuse the cases that rely on dignity to further articulate the rights of LGBTQ people.

v

Pondering US Women Registering for the Draft: Equity?

The Senate passed a bill requiring females who turn 18 to register for the draft .  This requirement would apply to those girls who turn 18  in 2018 or later.  The supporting argument is that since women can serve in all military positions open to men, they should have the same obligations. The bill now moves to the House, where conservative members are opposed to registration expansion.  The bill raises interesting questions around women and safety.

Will the military take any steps to ensure that women are safe from sexual assault and harassment while serving their country?  Men are killing individuals and in mass numbers, at the same time that cultural shifts have resulted in more acceptance of diverse sexual identities, increased racial activism  and the increasing power of women.  What are female recruits going to face as they are forced into one of the most change resistant and oppressive institutions for women?  Yes- many women have risen to impressive ranks of military service, but many more have been sexually assaulted. 

The long term benefits of women serving in the military could be significant. In the very long term, we might have a military where decision making is balanced by the inclusion of both feminine and masculine perspectives.  Those veterans who promote male privilege will lose their edge.   Jobs giving veterans preference due to their status would now be open to the missing half of the population. Often ignored, PTSD in females might be recognized and treated more seriously. 

But in the short term - which could be decades- women risk assault in every way by their male peers and superiors.  As assault victims, females soldiers who report are more likely to be discharged without compensation or other redress while male perpetrators are unpunished. The privileged among us who promote war rely on no-active-draft status to save their sons from forced service.  The class equity that draft brings will be less likely as the privileged resist implementation of a draft that results in their daughters' deployment.  

Now that military women have access to all positions open to men, will we assume that we are post- misogyny in the armed services?  Or is this move nothing less than backlash? Backlash against women has a long history.  The attempt to universalize the successes of a few woman historically created a backlash for women. Here are a few:

            "No-Fault" divorce discouraged women from addressing the truth of their abusive  relationships.

            When job discrimination became illegal and women were beginning to make employment inroads, family court judges  denied or limited alimony telling women who had not worked in decades to return to the workforce.

            Women on the job have been punished for being female.  Namely, motherhood more often results in their losing jobs or status within the workplace, as well as decreased pay.  Mothers are expected to take care of sick children, aging parents but are not compensated when they do so.

            Now that sexual assaults in the military are being exposed, the military has changed its definition of assault to make it more  difficult for victims to qualify for redress.

What does this mean for women soldiers who might make up half the force?  The first few generations of female soldiers continue to suffer from male dominance and abuse. The culture may change, eventually, but change in the military does not come quickly.

Does the registration bill promote equity or punish it?  Will President Obama sign the bill if passed?  Malia will not be required to register but Sasha will.   

 

    

    

    

 

 

 

 

 

The United State of Women

Yesterday the White House Summit, the United State of Women, was held in Washington, DC.  The event was outstanding for many reasons.  Bringing together five thousand (mostly female) advocates for women in one space was amazing.  The line up of speakers was equally amazing.  The list is too long to recreate here but here are some of the names of presenters you might recognize:  Valerie Jarett, President Obama, Vice President Biden, Billie Jean King, Amy Poehler, Patricia Arquette, Sarah Jones, Warren Buffet and so many others whose names you may or may not recognize.  To me, the highlight was listening to Oprah Winfrey interview the First Lady.  As one colleague remarked, the experience felt like eavesdropping. 

Many presenters began by highlighting the horrific events in Orlando with unexpected guest Attorney General Loretta Lynch addressing the events expansively in her talk.  Bamby Salcedo, President and CEO of [email protected], made the Orlando slaughter both real and personal.

As participants moved to and from breakout sessions, they were accompanied by female musicians who played in drumming and mariachi bands, both of which historically have been closed to women.  The drumming did provide a humorous moment.  To the laughter and eye rolls of the women, a line of five men, presumably convention center employees, unabashedly walked between the drummers and those women watching the performers, unwittingly becoming a reminder of why we were gathered. 

Significantly, participants commented on their freedom to unapologetically focus on women.  Straight, lesbian, trans, queer, women of color, younger and older - all were freed.  Any need to appease male supremacists with gender neutral language was unnecessary and would have been inappropriate, as it often is.  In other words, minimization and denial of the special problems endured by women was absent from the room. 

To the White House planners, thank you.

 

Editors' note: The event was recorded and may be watched on line at the Summit website.

The Only Thing We Are "Post" is Love

The shooting in a gay nightclub, the largest mass murder in the United States, is a barometer of how the underbelly of the country is erupting with hatred and prejudice.

We are not post-racial. We are not post- homophobia.  And we are not post-misogyny. 

After President Obama’s election, those who ignored the reality of the depth of bias referred to the country as post-racial.  The election triggered the opposite.  Racial prejudice, as well as bias, has been blatant and played out in ways that undermine our democratic processes.  Think Mitch  McConell’s pledge shortly after President Obama’s inauguration that Mr. McConnell’s sole function was to make certain that Obama did not succeed. 

We celebrated the relative rapidity with which LGBTQ equality cases successfully moved through our legal system.  But we understand now that LGBTQ success triggered extreme violence against that community, as well.  Americans' discomfort with varied sexual identities, combined with fundamentalist beliefs that homosexuality and other sexual differences are the result of “sin”, propels angry and otherwise flawed individuals to violence.  The Orlando shooter’s pledge to ISIS is a sham.  The only thing that ISIS and the shooter have in common is access to deadly weapons and using fundamentalist doctrine as a disguise for hatred and violence.  This shooting was not a terrorist act as Homeland Security would define it.  This shooting was an extreme homophobic act.  Not even a year has past since Obergefell was decided.  Those who celebrated before a rainbow colored White House have returned to mourn.

And as Secretary of State Clinton moves toward her nomination and presidential campaign, we can expect a rise in already significant misogyny. 

Hatred may not be at higher levels than earlier times.  But what has changed is that public expressions of hatred are tolerated and the culture is increasingly narcissistic.   Combine cultural intolerance with access to assault weapons and a desire to die in the most notorious way possible, and we have a recipe for large scale, horrific violence against the historically vulnerable. 

The Irrationality of Anti-LGBTQ Legislation

by Jeremiah Ho

According to sources at the Human Rights Campaign, there are currently more than 100 anti-LGBTQ bills filed in 29 state legislatures across the country.  But the one bill that has gained the most notoriety in the national spotlight is North Carolina’s bill—HB 2—banning transgender individuals from using the bathroom of the gender with which they identify.  In the shadow of last year’s marriage equality victory, the controversy of the HB 2 has sparked conversation about transgender rights—a group within the LGBTQ umbrella that previously received the least amount of attention and the group that did not benefit from the repeal of Don’t Ask, Don’t Tell.

Given that one of iconic instances of discrimination that prompted the Civil Rights Movement was the segregation of public restrooms between white and other races, it feels as if the return to the restroom as the stage for discrimination symbolizes a regression from progressive politics.  The issue, however, is so much more complex than that.  As with racially-segregated public restrooms, the supporters tout a negative essentialist rhetoric that is firmly grounded in the politics of disrespect.  For instance, during the Civil Rights Movement, a common reason that pro-segregationists used to resist integration of public restrooms between white and other races was the protection of white women from the venereal diseases carried by African-American women.  In comparison, in the contemporary debate, we have supporters of bathroom bills—who also largely denounce expansion of anti-transgender rights—use the protection of young children from child predators as one of the primary reasons for these bathroom bills.  Just like venereal disease, here is now another peril that has been brought into the debate without any evidentiary basis—alas pedophilia!  But even despite the lack of statistics, the possibility of child predators is enough to gather support from family groups to prevent restroom integration at the expense of the restroom rights of a particular group.  Along the way, the ones left out of the stall—i.e. transgender individuals—now have either an inappropriate connotation of pedophilia attached to their image or way of life that facilitates an argument favoring their third-class citizenry.  Beyond the segregation, the pro-bathroom bill rhetoric is a cleverly designed campaign that uses anti-transgender essentialism—in the form bodily functions and biological sex—to discredit the pro-transgender constructivist aspects of gender identity.  All of this rhetoric and debate reveals the tension and hatred that the supporters of bathroom bills hold for transgender people.                        

Although in the context of schools, these bathroom bills have been legally challenged on the basis of Title IX violations, much of this debate makes me think of another legal solution to use against bills such as HB 2—that is, animus and rational basis "with bite" in Romer v. Evans.   The anti-trans rhetoric here reminds me of the disrespect politics that the supporters of Colorado Amendment 2 in the early-to-mid 1990s employed to get the state voters to pass an ordinance that denied non-discriminatory protections for LGBTQ individuals.  That campaign used the AIDS crisis and inaccurate statistics about gay sex to tarnish the image of sexual minorities, leaving them without any dignity in the eyes of other fellow Colorado citizens.  Eventually Amendment 2 was overturned by the Supreme Court in 1996 in Romer because the Court found that Amendment 2 was promulgated by an animus against sexual minorities that rendered the law empty of rational basis.

So if we were able to resolve Colorado’s discriminatory Amendment 2 in 1996, why are we not quicker in 2016 to note the hatred and animus that ought to render HB 2 and similar laws that discriminate against transgender individuals irrational as well?          

Religious Freedom or Anti-Gay Disguise?

If it had not been clear enough since last spring’s brief controversy Indiana’s Religious Freedom Restoration Act, the struggle for sexual orientation anti-discrimination was not about to cease with just a pro-gay Supreme Court marriage decision over the summer.  In fact, the recent news of anti-gay legislation passing through Georgia’s state legislature (it’s now on Governor Deal’s desk awaiting signature) gives pause for the thought that marriage equality just wasn’t enough for full equality. 

But what some might think is a step backward from Obergefell is actually part of the political incrementalism that keeps the importance of gay equality alive.  Obergefell was not—and should not be considered—the full-stop to progress in gay rights.  With the recent rise of conservative state legislatures passing bathroom bills against transgender school children and passing legislation, such as the one in Georgia, that would consequently allow faith-based groups to deny serves against same-sex couples and LGBT individuals, the movement presses on. 

The state of the gay rights struggle has been contextually one in which religion has been the both sword and shield.  First, religion was used to cast the behavior of sexual minorities as immoral and thus also deny them of protections within their civil liberties.  But once morality was no longer the effective underlying logic, the rise of religious liberty rhetoric began to take more presence in the debate over gay rights.  In the aftermath of Obergefell, where same-sex couples were given the right to partake in an institution that has both civil and religious significance, the defense of religious liberty was emblematically evoked by the likes of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples.  Davis defended her actions by claiming that her religious beliefs conflicted with homosexuality and her freedom of religious exercise shielded her from having to issue marriage licenses to gay couples. 

More clearly than ever, the debate now should move forth to investigate where one right begins and another ends.  Religious freedom is an imperative liberty in this country and it should continue to be in a society that embraces many different religious practices and ideologies.  But rights and freedoms are not absolute.  This notion includes the freedom to exercise of religious beliefs.  What needs to happen every time religion is being used to combat the recognition of gay rights is not only the acknowledgment that religious liberties already deserve protection under the Constitution.  We know that already; and frankly that’s the distraction in the political and legal rhetoric that leads to bills such as the one in Georgia or to the Kim Davis incident last fall—all pronouncements from an anxious body politic that craves that validation.  Instead, it is about time that the debate has shifted toward analyzing whether one’s exercise of religion has overreached in the context of gay rights and thus created a cognizable harm in the civil liberties of another—whether that’s a dignitary harm or some other legally-recognized injury.   

Recently, this topic has received some recent scholarly attention.  In a short passage in Dean Erwin Chemerinsky and Professor Goodwin’s forthcoming Georgetown article, Religion Is Not A Basis For Harming Others, Chemerinsky and Goodwin alluded to the idea in the gay rights context an argument for restricting religious freedom might be based on an infliction of dignitary harm.  Marvin Lim and Louise Melling also recently co-wrote a piece on this topic in the Journal of Law and Policy more directly to that effect.  Other scholars such as Professors Douglas NeJaime and Reva Siegel are sharing their forthcoming ideas similarly. But more legal and scholarly spotlight must shine upon this piece of the debate—that religious liberties are not absolute and must be constitutionally regulated in order to balance the panoply of civil liberties that is protected by the Constitution and that individuals in our society enjoy.         

New Year Resolution Toward Respect: A Human Rights Goal

by Jeremiah Ho  

 It has been evident that within the last century, dignity has become a leveraging point for advancing challenges to human rights violations and restrictions within the law. Its post-Enlightenment, fundamental universality replaced previous versions of humanity and has been regarded as a normative individual entitlement.  In addition, the broadness of its meaning and application allows different social movements to carve out particular nuances between the status quo and desired norms.  Thus, dignity is a normative. 

Even before Obergefell v. Hodges, the anti-gay rhetoric that stole dignity away from sexual minorities for decades was a way in which the denial of their civil rights was justifiable under the law.  As others such as Martha Nussbaum have recounted (see Nussbaum, From Disgust to Humanity: Sexual Orientation & Constitutional Law 2010), challenges fought in court and state legislatures over gay rights in the past were lost by gay litigants and gay rights advocates partly because the dominant rhetoric against sexual minorities was couched within the politics of disrespect—that, for instance, gays were living in a lifestyle premised on a morally-blameworthy choice or they were susceptible to illnesses or that they practiced sexually-deviant, perverse acts.          

To some waning degree, that rhetoric of disrespect still remains and are still being used by opponents of gay rights and marriage equality. But for the most part, we’ve moved toward recognizing that dignity exists in sexual preferences and away from a politics of disrespect.  But a good question to ask in the recent shadow of Obergefell is whether the dignity recognized by the Court specifically accorded sexual minorities the respect that they should be entitled to for being who they are or whether the dignity rhetoric in Obergefell stopped short of this view and settled for addressing the respectability of choices of same-sex couples for wanting to participate in marriage.  The nuance seems slight but in the age where we recognize micro-aggressions and find assimilationist politics confining, the use of dignity to leverage rights by characterizing it between respectability of choices that a sub-group engages in to fit into the dominant culture (e.g. same-sex couples trying to obtain marriages) is a significant distinction from using dignity to accord the respect that a sub-group deserves based on identity alone. 

As we begin 2016 and progress (hopefully) toward nondiscrimination for sexual minorities, respect certainly seems like the winning route to take when it comes to using dignity to speak about elevating the status of sexual minorities to a protected class—whether judicially or legislatively. Respectability, in comparison, has the potential to elongate a conversation where LGBTQ individuals are considered as “the other.”  Dignity as respect reframes the discussion away from choices and existence in a way that deprives the dominant culture opportunities to comment, and instead, places the subgroup in a light where such type of judgment is not allowed.            

Coming Soon to a Supreme Court Near You

Last week, a Massachusetts state judge ruled that a Catholic high school discriminated against a gay man when it rescinded a job offer upon learning that the candidate's spouse is male.  The decision is believed to be the first in the nation employment discrimination case since the enactment of marriage equality.  The candidate, Matthew Barrett, accepted an offer as food service director.  But when he listed his husband as his emergency contact in completing employment forms, the school withdrew its offer. 

Mr. Barrett is represented by GLAD attorney, Ben Klein.  Judge Douglas Wilkins, in deciding the case, rejected the school's argument of a religious exemption under the Massachusetts' anti-discrimination law.  The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school's religious teachings.  Judge Wilkins based his decision on several findings.  Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett's position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage.  In what is a disappointing ruling for those asking to have sexual identity acknowledged as a protected class, Judge Wilkins noted only that Mr. Barrett was subject to gender discrimination when he was denied employment to which a woman applicant married to a man would have been entitled. As previously discussed in this blog, a protected class analysis has been lacking in the same sex and sexual identity cases that have come before a variety of U. S. courts.

This decision is ripe to wend its way to the U.S. Supreme Court.  Advocates for conservative Catholic organizations, such as the Catholic Action League of Massachusetts, are already voicing dismay over the decision. That statement may be said too lightly.  The group's website headline says that it "condemns" the decision.  I suspect that those advocating for the acknowledgement of sexual identity as a suspect classification would welcome this case being accepted for cert.  The facts are favorable for consideration of the protected class argument that was avoided in Obergefell.  On the other hand, those who believe that this case is wrongly decided may be cautioned against appeal if the consequence might be a ruling that not only affirms the trial court but expands constitutional protections on sexual identity grounds. 

Stay tuned! 

Women in Combat

  Yesterday, the government announced that women will be permitted to apply for or be assigned to any position within the armed forces.  This includes combat based positions.  In one of the last situations of overt sex discrimination, women were excluded from consideration for many combat positions, even though many found themselves in combat situations.  With the latest policy change, women may apply for all combat positions, including front line ones.  Similarly, they may be assigned to combat by the chain of command.

 While the Marines, through now Chair of the Joint Chiefs of Staff Joseph Dunford, requested discretion to determine which positions would be open to women soldiers, Secretary of Defense Carter made clear that there would be no exceptions to the policy change.

The removal of this disqualification raises the issue of whether or not women will be subject to selective service requirements.  That will be a discussion for another day and one on which Secretary Carter refused to comment. 

Secretary Carter said that the Pentagon "can't afford to omit half of America's population from consideration".

He added that since the 1970s, women have been able to attend U.S. service academies, and that in the early 1990s women's military roles were expanded, with each branch allowed to make some exceptions that kept women out of combat. 

Ultimately, we can thank four courageous servicewomen who sued then Secretary of Defense Panetta for the failure of the armed forces to permit women in combat roles.  Within a few months of suit being filed, Panetta agreed that gradually women would be allowed in combat positions.  Yesterday the end to this particular discrimination became final.