Monday, November 2, 2015
Last week Jeremiah Ho updated us on the status of anti-discrimination laws in the fifty states where discrimination is based on sexual identity. New York was cited as one state that is close to enacting such protections.
In 1945, New York passed its first Human Rights law which bans discrimination on several grounds. One section of the act reads, for example:
Friday, October 30, 2015
By Jeremiah Ho
This week the Associated Press published a survey of antidiscrimination legislation amongst the states that protect LGBTQ individuals. What the AP observed was that “there is a sharp split among states, with some enacting such protections and a majority opting not to.” Then the article listed some highlights (quoting directly from the article):
-28 states have no explicit statewide protections for sexual orientation and gender identity: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wyoming.
-17 states and the District of Columbia prohibit discrimination on the basis of sexual orientation and gender identity in employment, housing and public accommodations: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington.
-Three states prohibit discrimination on the basis of sexual orientation in employment, housing and public accommodations: New Hampshire, New York, Wisconsin. The laws in these states don't encompass gender identity. However, New York Gov. Andrew Cuomo is issuing an executive order that will soon extend protections to transgender people.
-Massachusetts prohibits discrimination on the basis of sexual orientation and gender identity in employment and housing and prohibits discrimination on the basis of sexual orientation in public accommodations. There's an effort underway to extend the public accommodation protections to transgender people.
-Utah prohibits discrimination on the basis of sexual orientation and gender identity in employment and housing. Its law doesn't cover public accommodations.
It’s been four months since Obergefell v, Hodges, where the Supreme Court extended the right of marriage to same-sex couples. The honeymoon period is arguably drawing to a close, and it is time to see what’s next. Without federal law or guidance for banning discrimination against LGBTQ or a strong, definitive approach from the Supreme Court bench that situates sexual orientation and/or identity as a protected classification, work needs to continue to increase the safeguard against the discriminatory acts and harms toward LGBTQ individuals. According to a 2014 Harvard Law Review article by the review’s own editorial board, there is often a critical dissipation of gay rights advocacy within a political body once marriage equality is achieved. What the AP article demonstrates is that the conversation for LGBTQ rights needs to continue quickly toward obtaining full and uniform sexual orientation or identity antidiscrimination protections despite the recent achievements in marriage equality. The link to the article is here.
 Developments in the Law: Sexual Orientation & Gender Identity, 127 Harv. L. Re. 1682, 1689-90 (2014) (citing examples from the Netherlands and Canada where concern that “once the marriage equality fight is won nationwide, the urgency of fighting for other LGBT rights will diminish”).
Monday, September 28, 2015
The recently released Ferguson Commission report lays down a challenge to a nation torn apart by revelations of police abuse.
Missouri Gov. Jay Nixon created the commission last year in response to the fatal police shooting of Michael Brown, though the authors of the report note that they were not charged with investigating his death.
“We are not even suggesting that institutions or existing systems intend to be racist,” the commission states. “We are pointing out … that the data suggests, time and again, that our institutions and existing systems are not equal, and that this has racial repercussions.”
There are 189 policy recommendations in a portion the report describes as a “call to action.” There are a few that especially stand out.
First, and most importantly, the commission calls for comprehensive police reform. This includes more and better training for officers and the creation of a database on the use of force — all with the goal of decreasing violent confrontations.
Second, the commission takes mass incarceration head-on and presses for criminal justice reform. It urges an immediate change in sentencing laws and the elimination of incarceration altogether for some minor offenses. It pushes the police and prosecutors to change processes that include disregard of the fundamental rights of those accused of crimes. And it calls for the creation of community justice systems designed to address problems in a different way.
Third, the commission asks for a special effort to do more for the youth. It suggests better education and nutrition for young people, improved health outcomes, the reform of school disciplinary policies and practices, and more investment in early childhood education.
These recommendations are crucially important. An unarmed black person is twice as likely to be killed by a police officer as a white individual. The United States contains 25 percent of the world’s prisoners, even though the country only makes up 5 percent of the world’s population. The unemployment rate for black youth is 20.7 percent, according to the latest numbers. Young people of color face daily challenges.
There have been other significant reports in the past that have documented racial injustice and proposed constructive responses, but they have been largely ignored. Let’s not make the mistake of dismissing the Ferguson Commission report, which provides a blueprint for reform across the nation.
Editor's note: Prof. Gilmore wrote this piece for the Progressive Media Project and it first appeared in the Bangor Dailey News
Friday, September 4, 2015
Boston columnist Joan Vennochi has given us insight into some of the cases that are being dismissed when women bring claims of a hostile work environment. In 2012, a TSA employee in Boston filed suit against Homeland Security. Her boss wielded a baseball bat. The boss routinely engaged a swinging stance, raising the bat when he spoke to the Plaintiff. The same boss changed the female employee's work assignments, citing concerns about the employee's family- friendly work hours. Witnesses testified that the switch was related to the boss' attitude toward women. The judge hearing the case dismissed it finding that while the atmosphere was likely uncomfortable, it did not rise to the level of severe or pervasive discrimination. The judge wrote, that the supervisor did not threaten the employee with the bat. The statement reflects nothing less than a misunderstanding by the court on how threats happen and the psychological damage that threats can have.
In another case reported by Vennochi, a supervisor called the Plaintiff a "whore, stupid bitch and hooker." That case was dismissed because the conduct, according to the court, was "general vulgarity" not speech regulated by law.
Former federal District Judge Nancy Gertner said that plaintiffs alleging a racially hostile environment do not have better results than the women who claim a hostile work environment based on sex.. "Gertner cites Johnson v. Freese, a Georgia case in which the white owners of a nightclub directed the N-word toward their African-American employees. The boss asked someone wearing a shirt with a monkey on it, “Are the Obama shirts in?” Black workers suffered other indignities as well. Yet in granting summary judgment, the judge said that while the white owners were “racist, bigoted and/or offensive people” the judge found that none of the incidents went beyond the “ordinary tribulations of the work place.” If that is the case then we as a nation tolerate a high level of abusive behavior as customary.
When President Obama announced that empathy would be an important quality in a Supreme Court Justice, some found empathy to be inapplicable to the position. Apparently not.
The influence of the human rights principle of maintaining individual dignity has not made its way to employment law cases. We cannot expect human behavior to be perfect. Most of us will have days when our behavior could have been better. But some instances of racist and sexist behavior are so disturbing that a logical conclusion is that the speaker has acted out of a place of deep prejudice. In other cases, a pattern of disrespectful behavior is engaged. Neither a serious incident or a pattern of discriminatory action or speech should be tolerated. If being called a "stupid bitch" is insufficient to trigger a hostile work environment finding, we need to change the standard of proof to match human rights principles.
Thursday, September 3, 2015
Yesterday's post by Jeremiah Ho analyzed the majority and dissenting Obergefell opinions. Today's post discusses why the majority opinion is part of the progression of Human Rights Law in U.S:
LGBTQ advocates need not contort Kennedy’s emotive reasoning in order to align the majority opinion with the “logic-based” styles of the dissenters. Legal bases for Kennedy’s arguments exist in human rights law and language, dignity being a fundamental human rights principle.
The opening to the Preamble to the Universal Declaration of Human Rights underscores that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Those who disavow using sources other than American statutes and case law in deciding U.S. based issues fail to recognize that the Universal Declaration inherently embraces U.S. principles contained in the Declaration of Independence and supported in the Bill of Rights. The “pursuit of happiness” is intimately tied to the ability to be educated, employed, suitably housed, and fed, while being safe. Equal access to societal institutions and their implied or express benefits are inherent in the American notions of equality and expressed in human rights doctrine. The right to participate in social benefits, with equal participation in resulting burdens that participation brings, is what creates individual and cultural dignity. The American principle of equality cannot be realized without recognizing the fundamental rights embodied in the Universal Declaration. Human rights cannot be separated from human existence. These principles are not aspirational but are, in the quintessential American lexicon, “unalienable.”
In Obergefell,Kennedy embraced human rights concepts through references to and reliance upon notions of “dignity.” That which irrationally deprives individuals’ access to civil society’s institutions based upon the individuals’ “immutable nature” denies dignity: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Unspoken, but implicit, in Obergefell’smajority opinion is that one consequence of exclusion from cultural institutions is shame, historically a tool of oppression when those who are victimized by denied access internalize legal and cultural deprivation. Denying individuals’ access to fundamental institutional benefits based upon immutable characteristics creates cultural beliefs that those excluded are unworthy. The deprived individuals carry a belief that somehow they are responsible for the exclusions. Along with other often excluded groups in the U.S., such as women and African Americans, this shame has been documented in the LGBTQ community.
Cultural judgment based upon immutable characteristics is the starter for animus. In Obergefell, Kennedy recognizes animus as the essence of deprivation. The Universal Declaration demands that individuals be free from this sort of harassment: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor or reputation.” The animus-dignity dichotomy originates in human rights concepts embedded in U.S. legislation, such as the Fourteenth Amendment, as well as more universal applications. The resolution of animus restores dignity, leading to acknowledgement of complete personhood so that “[e]veryone has the rights to recognition everywhere as a person before the law.”
Kennedy does not limit his benefits analysis to legal concepts: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.” Kennedy cites Loving in recognizing that the choice to marry is something that resides within the individual and cannot be deprived by the state. In embracing the intangible, Kennedy incorporates fundamental human rights concepts as support for his legal conclusions. Likewise, incorporating reference to the limitations and obligations of the state embraces fundamental human rights law.
Justice Kennedy’s decision is based in law, although his critics ignore the importance of dignity as foundational in U.S. jurisprudence. Obergefell will weather time, as human rights language and concepts become more widely recognized in American law.
Wednesday, September 2, 2015
By Jeremiah Ho
There has been much criticism over the emotional rhetoric of Justice Kennedy’s majority decision in Obergefell v. Hodges—especially when comparing it to the seemingly more rigorous language in the dissenting opinions. But the crux of this tension in Obergefell lies at the framing of its inquiry. In granting certiorari, the Court asked the litigants to address their issues within the Fourteenth Amendment. Thus, petitioners latched onto the ongoing successes in marriage equality to argue more consistently for extending the existing fundamental right to marriage to same-sex couples. Contrariwise, respondents insisted that the litigation involved the ongoing creation of a new fundamental right to same-sex marriage that had no consensus amongst the states.
Such differing views are taken up respectively by the Obergefell majority and dissents. Kennedy’s decision resolves the marriage controversy by extending to same-sex couples the already-existing fundamental right to marry under the Fourteenth Amendment. Meanwhile, the dissenters—Roberts, Scalia, Thomas, and Alito—vigorously insisted that petitioners were seeking constitutional creation of a new and specific fundamental right to same-sex marriage.
For the majority, extending the existing fundamental right to marry resulted in an opinion with broad emotive rhetoric that consequently seemed to upstage the doctrinal gestures. If the fundamental right to marriage ought to be available to same-sex couples, Kennedy needed to demonstrate justification. Accordingly, he dramatized justification by creating a narrative of exclusion through use of animus and human dignity concepts that had appeared either separately or together in his previous gay rights Supreme Court opinions. By entwining the two concepts into an anti-stereotyping principle that frames the narrative of marriage exclusion, Kennedy describes how the exclusion was borne from a prejudicial animus that led to indignities against same-sex couples. In fact, the way in which Kennedy phrases the historical reason for exclusion unveils a bias against same-sex relationships because the traditional belief was “it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.” By contrast, from petitioners’ perspective, this rationale was unfounded because they only sought marriage to bolster “the enduring importance of marriage” out of “their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”
In using animus and dignity to further his narrative to support same-sex right to marry, Kennedy also humanizes marriage exclusion through personal accounts from the petitioner’s private lives. The most gripping example involves the one from petitioner Obergefell where Ohio state’s refusal to recognize his out-of-state marriage and his now deceased spouse, Arthur, relegates them to “strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time.’ ” The rhetoric is heightened but not doctrinal. The personified injustice provokes collective outrage as it centers on why this animus-filled exclusion violates human dignity, leading the opinion to become much more emotionally resonant. Because the majority is not creating a new fundamental right, but extends an existing one, Kennedy’s rhetoric resonates with decisions in equity, relying on principles—which he does with concepts such as dignity, animus, and autonomy—rather than decisions at law.
By contrast, the Obergefell dissents are seemingly more grounded in law, if only because they see the case as creating a novel right to same-sex marriage. This narrower perspective demanded a more logic-based, erudite rhetoric. Chief Justice Roberts was not subtle when he attacked the majority for creation of this new right, arguing substantively that such a right was not deeply-rooted in our nation’s history and criticizing procedurally Kennedy’s supposed creation of the new fundamental right as an act reminiscent of now-defunct Lochner. By framing the issue similarly, Justice Thomas uses logic to articulate his dissent—except he perceived the alleged creation of the new right to same-sex marriage as anathema to due process jurisprudence, which, he argues, should adjudicate only violations of negative liberty where freedom was deprived by governmental action. Since Thomas frames the issue as an attempt to create a new fundamental right, he argues there could not be any governmental action against it so far and thus no rights were deprived. Justice Alito argues that the majority’s supposed creation of a new fundamental right drives against the democratic process because the legislature and the public should dictate such creation, not a judicial counter-majoritarian act. The logic, history, and politics of the dissenters are rigorously articulated and rely more on doctrine than Kennedy’s principled but humanistic majority decision. But by framing the issue too narrowly at the outset, the dissenters misconstrued it. What logical and doctrinal arguments followed—however intellectual—originated from a false premise. As a result, the dissents do not challenge Kennedy’s opinion in any logical way, they are just legalistic.
Tuesday, September 1, 2015
On August 24, 2015, U.S Ambassador to the United Nations Samantha Power and her Chilean counterpart Ambassador Cristian Barros Melet held the first ever U.N. Security Council meeting on LGBT rights. A primary focus of the meeting was the violence perpetrated against LGBT people in areas controlled by ISIS.
Ms. Power described the meeting as powerful. "Everybody has read about what ISIL and what others are doing to LGBT people around the world, but it’s another thing entirely to hear personal testimonies. While others spoke, including members of the Security Council and other member States, photos also were projected that depicted what ISIL is doing to LGBT persons or those suspected of being LGBT."
Power described the photos of violence toward members of the LGBTQ community as "graphic" and "gut-wrenching."
"The last thing I would say is just that while some of the emphasis was on ISIL, particularly given the testimony of the witnesses, there was widespread recognition among those who spoke that this is not an issue by any means confined to ISIL."
According to CNS news, Power noted that it was only five years ago, at the Obama administration's insistence, that the United Nations Human Rights Council passed a resolution acknowledging LGBT rights as human rights. Since 2011, the HRC has passed a second resolution on LGBT rights; and in June, it released a report on the plight of LGBT people around the world.
The Human Rights Campaign noted:
Monday, August 17, 2015
Earlier this blog discussed the resistance to Obergefell by private businesses and government entities. One of the cases referenced was against a Colorado baker, Masterpiece Cake Shop, Inc. Masterpiece had refused to contract with Charlie Craig and David Mullins when they requested that Masterpiece prepare their wedding cake. Basing its findings on state law, the trial court found that Masterpiece had violated the law in refusing to accept the Craig-Mullens order. Masterpiece appealed.
Last week the Appeals Court of Colorado issued its opinion upholding the trial court's decision. The court rejected Masterpiece's argument that it had not denied the request because of the sexual orientation of the customers, but rather that it opposed marriage equality. The court rejected defendant's religious-based arguments and found that sexual orientation and marriage equality are so intimately bound together that the distinction cannot be parsed. The court dispelled any free expression argument, as well: "It is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage." Masterpiece is considering appeal.
In Morehead, Kentucky, a court clerk refused to issue marriage licenses to several same sex couples. In so doing, the Clerk refused to comply with the Kentucky governor's direct order. Last Wednesday, Federal Court Judge David Bunning ordered the clerk, Kim Davis, to resume issuing marriage licenses. But Ms. Davis did not show up for work on Thursday. Looks like Morehead County might be welcoming a new clerk soon.
The NY Times also reported that thirteen Alabama probate judges are refusing to issue licenses. One unintentionally humorous response from a state legislator was to encourage the state to get out of the marriage license business, the abolition of civilly recognized marriage. Now there is an idea many feminists can get behind. Roll Tide!
Thursday, July 30, 2015
by Jeremiah Ho
Editor's Note: Professor Ho completes his three part series with this discussion of post Obergefell Advancement
As an anti-stereotyping principle, the concepts of animus and dignity interwoven by Kennedy in Obergefell serves to contain the narrative of discrimination and marginalization based on sexual orientation. Harnessed together by Kennedy for his fourth gay rights opinion at the Supreme Court, the animus-dignity connection in Obergefell arrives at the marriage equality ruling; but more importantly by tying the significance of the marriage right to human dignity, Kennedy is able to make salient that the right to marriage should be legally available to same-sex couples because otherwise it hinders the upholding of important constitutional ideals. Specifically in Obergefell Kennedy’s continuous use and reliance on the animus-dignity connection reveals an emphasis on the autonomy of sexual minorities. One of the reasons exposed by the indignities from state marriage bans that concerned Kennedy was the abridging of private choices that reflect the personal autonomy available for self-determinism. Ensuring that the fundamental right to marry was available to same-sex couples helped correct that curtailment. As Kennedy notes in Obergefell, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”
Since Lawrence v. Texas, personal autonomy has been a common theme in gay rights cases. In fact, in Obergefell v. Wymyslo, one of the lower federal district cases eventually consolidated into the appealat the Supreme Court, an emphasis on the personal autonomy in choices reflecting sexual identity was one reason why the Wymyslo court found sexual orientation appropriate for heightened scrutiny. In its discussion of the immutability of sexual orientation, Wymyslo exhibited a preference for protecting personal autonomy when it adopted a standard for immutability that allowed it to find that sexual orientation was an immutable trait because it was “so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual—even if such a choice could be made.” In other words, one has the autonomy to make choices that reflect sexual identity. Obergefell’s two passing mentions of the immutability of sexual orientation seem to concur.
Going forth, one of the ultimate leveraging advancements from post-Windsor cases to Obergefell should be the increased recognition between personal autonomy and sexual identity. Autonomy after all resides significantly in modern theories of democratic rights because individualism and self-invention has figured into the concept of humanity. Relating all of this back to sexual orientation antidiscrimination, autonomy helps leverage advances within equality because inequality here is still concerned with the distribution of rights—even if the right involves something as intangible as self-determinism but is externalized by personal choice. In that sense, the recent advances for autonomy in sexual orientation discrimination ought to be expanded for sexual identity in the LGBTQ movement’s next increment of advancement.
For instance, placing sexual orientation firmly within a protected trait in Title VII could be the next step that constructively leverages developments from the marriage cases to antidiscrimination. Although Title VII does not expressly protect sexual orientation, there is already some slippage within what “because of sex” means in claims that allows claimants to assert claims that could factually involve sexual orientation discrimination but also qualify as gender-stereotyping. The complex interplay in the characteristics of sex and gender have gradually carved out a line of cases, including Supreme Court precedent in Price Waterhouse v. Hopkins that have adjudicated Title VII cases in situations where gender-stereotyping was at play under the Act’s definition of discrimination “because of sex.” Couching this idea in Judith Butler terms, the performative or expressive aspects of gender have broader—and perhaps fuzzier—borders than biological sex-determinancy or inferences. Although other gender-stereotyping cases have articulated that the gender-stereotyping theory could not be utilized to “bootstrap protection for sexual orientation into Title VII,” sexual minorities have been able to lodge discrimination claims in situations where they were marginalized harmfully when the expressive aspects of their personal identity based on their sexual orientation belied conventional expectations about their biological sex; such results have varied.
This notion of marginalization or discrimination of individual gender expression based on dominant expectations of sex—harnassing aspects of essentialism to bolster one idea of what it means “to be a man or a woman” in order to eclipse other ideas—places tolls on personal autonomy. In this way, there might be some viable overlap existing between these Title VII gender-stereotyping cases and marriage equality cases that may be helpful to future advances in sexual orientation antidiscrimination post-Obergefell.
Wednesday, July 29, 2015
by Jeremiah Ho
Editors' note: This is the second in a series of three posts by Prof. Ho looking forward to what comes next post-Obergefell.
When marriage litigation boomeranged back to the Supreme Court in Obergefell this year, Kennedy extended the animus-dignity connection in an opinion that encompassed the same-sex marriage issue under both fundamental rights and equal protection. Kennedy was able to humanize discrimination against same-sex couples by framing the facts between historical animus toward sexual minorities that excluded them from marriage and the genuine indignities such animus has caused. Kennedy began his opinion by reiterating the intellectualized stance taken by same-sex marriage opponents that "it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex." Implicit in Kennedy's depiction is the rhetorical question, why would such inclusion "demean" the institution of marriage but for the moral disapproval or animus of same-sex couples? He then transitioned to the depictions of that exclusion, notably mentioning the plights of the petitioners in undignified positions because of marriage bans in their home states. Particularly heart-breaking was the account of Petitioner Obergefell who had to marry his ailing spouse inside a medical transport plane on a Baltimore tarmac far away from their home state of Ohio only to have Ohio later strip them of the benefits of marital status. The animus-dignity connection also appeared in Kennedy historicism on the modern gay rights movement, when he discussed how "same-sex intimacy long had been condemned as immoral by the state itself in most Western nations" and that was why "many persons did not deem homosexuals to have dignity in their own distinct identity." In a similar passage, he noted a time when "the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions." These narrative uses of animus and dignity exemplify the connection as an anti-stereotyping principle that channels toward an emotional rather than an intellectualized core. It is also the first time in these cases that animus and dignity have been used on this visceral level.
In articulating why the fundamental right to marriage applied also to same-sex couples, Kennedy relied primarily on dignity rights reminiscent of how he reached his result in Lawrence and Windsor. Withholding the exercise of marriage rights from same-sex couples restricted personal choice and self-determinism, perpetuated a second-class citizenship, demeaned the families created by same-sex unions and precluded benefits of marriage accorded opposite-sex couples. And once the fundamental rights issue for the ability of same-sex couples to exercise the right to marriage was set, Kennedy did not need to venture into a protected class analysis in his equal protection rationale. Of course, pro-LGBTQ rights advocates had hoped thatObergefell 's equal protection analysis would have been more robust in regards to sexual orientation as a protected class. But even here, the result was favorable for same-sex couples and Kennedy accomplished this in part by relying again on connecting animus and dignity when he wrote that "[e]specially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them."
Where do we go from here? The animus-dignity propagated in these gay rights cases has established a correlative effect between the two concepts that elevates the connection into an anti-stereotyping principle or channeling device. The connection shows us what is wrong with the way the law has been used to marginalize a sub-group in society based on disapproval for a characteristic that members of this sub-group possess. The connection then highlights how that marginalization pervasively hinders members of the sub-group's ability to lead their lives according to our collective beliefs of self-determinism, freedom and individuality. That correlative effect offers potential furthering advances in sexual orientation antidiscrimination, the next realm for gay rights advocacy.
Post-Obergefell, antidiscrimination advocates should seek more instances for exposing how some long-standing societal prejudices toward sexual minorities are based on animus and how that animus leads to marginalization that deprives human dignity. Through those instances, the experiences of sexual minorities will be revisited within the context of important big-word concepts in American democracy—ideas such as autonomy, liberty, equality and justice—that we all fundamentally value, but perhaps in different ways. In particular, sexual orientation could be regarded highly as a characteristic, protectable like race or gender, viewed as being so basic to peoples' identities that the law ought not to curtail or force them to change. In order to get there, advocates will need to rely on concepts of animus to demonstrate how notions that being gay was either a choice that is morally blameworthy or a biological pathology are prejudicial and have been the impetus for policies and laws that marginalize sexual minorities. Advocates will also need to employ dignity concepts in showing how marginalization harms personal and human dignities by interfering with freedom of sexual minorities to live based on their constitutive sexual identities. Aside from being historically important judgments, the animus-dignity connection is the legacy that Kennedy's Romer to Obergefell gay rights cases leaves us for the next step.
This post originally appeared on Jurist.com
Tuesday, July 28, 2015
By Jeremiah Ho
Editors' note: This post is part one of three posts. Today's post explores the history of Justice Kennedy's use of the language of animus and dignity, setting the stage for tomorrow's post on next steps.
Last month the US Supreme Court ruled on marriage equality in Obergefell v. Hodges and ushered in the decision that the fundamental right to marriage applies not only to opposite-sex couples but equally to same-sex couples as well. With that, state exclusions of this unenumerated and constitutionally-basic right from same-sex couples were viewed as intolerable under the US Constitution. This perspective was not so readily evident in the national imagination even in the recent past, let alone more than four decades ago when the court itself had summarily dismissed its first same-sex marriage case, Baker v. Nelson, "for want of a substantial federal question." Nearly 43 years later, Obergefell has now revealed that there definitely is a federal question within the context of same-sex marriage. The court's answer to that federal question last month showed just how substantial that question was.
So how did we get here? Writing for the Obergefell majority, Justice Kennedy reasoned through the issue within a specific context of discrimination that he—as the author of now four canonical gay rights decisions in recent Supreme Court memory—began building in Romer v. Evans and has developed throughout the rest of the quartet: Lawrence v. Texas, US v. Windsor and Obergefell. Throughout these opinions, Kennedy has relied on concepts of animus and dignity to create a narrative—both emotional and doctrinal—of the experience of marginalization endured by sexual minorities under the law. Gradually, the connection between animus and dignity in these cases has crystallized into an anti-stereotyping principle, proven crucial for mediating from one gay rights case to another and for overturning discrimination in each instance at the court.
Although Obergefell did not rule on the issue of whether sexual minorities deserved higher tiered scrutiny protection than rational basis, Kennedy's reliance on animus and dignity in Obergefell sets up importantly the next step in gay rights activism: antidiscrimination.
By tracking Kennedy's quartet of gay rights cases, we see that the concepts of animus and dignity were first introduced separately in earlier cases and then married together in the later ones. Kennedy introduced the concept of animus within the context of sexual orientation discrimination in Romer in 1996, importing its use from other equal protection cases such as Department of Agriculture v. Moreno. Rather than exploring whether sexual orientation warranted suspect or quasi-suspect classification to overrule Colorado's Amendment 2, a voter-approved referendum that banned any specified legal protections for gays and lesbians from discrimination, Kennedy drew upon a significant finding of animus to rule that Amendment 2 was unconstitutional under rational basis. In a political society, we cannot reasonably sustain laws created with hatred or animus against a particular group and Amendment 2 "seem[ed] inexplicable by anything but animus toward the class it affects."
Then with Lawrence in 2003, Kennedy introduced the idea that discrimination against sexual orientation could amount to a deprivation of dignity when he wrote to overturn Bowers v. Hardwick, a Supreme Court decision that had permitted states to criminalize consensual same-sex intimacy. Kennedy articulated the idea that state sodomy laws that criminalized consensual same-sex intimacy interfered with the autonomy and privacy of consensual adults engaging in same-sex sexual behavior and singled them out to be criminals if caught. This criminalizing effect left such adults without dignity for engaging in intimate behavior possibly indicative of their sexual orientation. By likening Lawrence to other privacy cases such as Planned Parenthood v. Casey, Kennedy extrapolated the dignitary harms concerns from the context of privacy and contraceptives in Caseyand embedded them here in the realm of same-sex intimacy and demonstrated that for same-sex couples, the criminalization of intimacy that could be indicative of their sexual orientation deprived them of the privacy, freedoms and dignity that were afforded couples engaging in sex acts indicative of heterosexuality. From Lawrence, the freedom to engage in consensual sex was deemed part of "the right to define one's own concept of existence, of meaning, and of the universe, and of the mystery of human life." Criminalization of such acts amounted to indignity.
While Romer was solely an animus case and Lawrence championed dignity rights, Windsor was Kennedy's first gay rights opinion to explicitly combine the two concepts. While discussing DOMA's [PDF] discriminatory effect against sexual minorities in Windsor, Kennedy found that DOMA was a law steeped in animus that effectively marginalized married same-sex couples on the federal level. His examination of DOMA's legislative intent captured a finding that DOMA was borne of legislative animus—a moral disapproval reinforced by antigay essentialist notions about same-sex relationships—and animus that had an intolerable purpose of imposing inequality. Fueled by animus, DOMA then existed to discriminate against married same-sex couples, not only by excluding federal benefits available to married opposite-sex couples, but by also symbolically relegating them to second-class labeling. Kennedy distinctively characterized such relegation as stigmatizing and demeaning to same-sex relationships and to the families created by those relationships. In Windsor, he doctrinally and centrally wove both animus and dignity into his calculation of DOMA's unconstitutionality under equal protection, fully galvanizing the connection as the reason to overturn such discrimination in the law.
Post-Windsor, lower courts imported and elaborated upon Kennedy's animus-dignity connection into their own resolutions over state marriage bans and mini-DOMAs. Such courts utilized the broadness of Kennedy's language in Windsor to explore the animus-dignity connection in marriage and sexual orientation discrimination even further. The post-Windsor moment was an interesting one for observing how subsequent courts have used some of the open-endedness of the animus-dignity connection in Windsor to reinterpret doctrinally how denying same-sex couples the right to marry constituted discrimination. Essentially, these courts in post-Windsor marriage cases picked up where Justice Kennedy left off.
Editors' note: This post originally appeared in Jurist.com
Tuesday, July 14, 2015
Yesterday's post addressed several resistance actions taken by individuals and groups who disagree with the outcome of Obergefell v. Hodges. Today's post considers some strategy considerations in proceeding with future litigation.
Obergefell has its limitation for sure, as Jeremiah Ho wrote here. While in deciding Obergefell, the court relied on both due process/fundamental rights and equal protection grounds, the Court stopped short of finding sexual orientation as a quasi-suspect or suspect class. That leaves us to ponder the future of equality litigation, particularly that addressing the suspect class issue.
As an initial matter, governmental gender orientation discrimination must be resisted as it arises. The consequences of systemic discriminatory policies are significant and far reaching. Clerks who resist issuing marriage licenses to same sex couples deserve an immediate response. Enforcement in government policy arenas is a priority so that the reality of marriage equality can be achieved.
Resistance by governmental entities is best dispatched promptly. Today's announcement that the Department of Defense will seek a plan whereby transgender soldiers can serve openly signals a relatively quick denouement for federal restrictions based on gender identity.
The Colorado wedding cake case has heightened significance following Obergefell. As noted yesterday, if decisions are based on state constitutional grounds, success for the plaintiffs may be within reach. However, for those who argue that gender identification must be designated a suspect classification under the federal constitution, careful thought is needed as to who will be the named respondents in future lawsuits. For several reasons, governments and large corporations may be the best targets of future gender identity and sexual orientation litigation. Individuals and small businesses may find themselves in a favorable position post-Hobby Lobby.
Secondly, if those who are not cisgendered want to assist in creating community acceptance for all gender identities, providing some litigation breathing space might be the best approach to countering resistance from individual community providers, such as wedding service vendors.
Justice Roberts' suggestion that plaintiffs would be better off waiting for their neighbors to accept change is naïve and idealistic. Read Jonathan Todres' analysis here. But we can provide an opportunity for marriage equality to find solid ground in communities without threats of lawsuits. A no-litigation pause can help. The fact is that change has already occurred. Obergefell saw to that. Giving our neighbors an opportunity to incorporate that change without the threat of litigation might be the best approach for community acceptance and changing social (and ultimately legal) norms. Whatever resistance remained in Massachusetts following the Goodridge decision dissolved in short order when businesses realized that a new source of income had been created.
How long should the pause be? No one has that answer. But we will soon. Each individual will be able to assess how acceptance is created, or not, in his or her own community. There are other suitable strategic lawsuits to be considered in advancing gender acceptance and elevating gender identity to suspect class status.
In the meantime, family law attorneys and wedding planners can rejoice in having been handed a new revenue stream.
Monday, July 13, 2015
Despite the power of Justice Kennedy's opinion, resistance to the Obergefell case persists in some quarters. This post is part one on this topic. Part two will address considered responses to the resistance.
Two conservative advocacy groups have asked their state's highest court to protect them in "resisting" enforcement of Obergefell v. Hodges. Citing constitutional grounds, the groups claim that the state (in this instance Alabama) can refuse to enforce marriage equality and indeed has the duty to defend state officials who refuse enforcement. Using the language of civil resistance invoked by Dr. King, the groups simply refuse to acknowledge the legitimacy of a ruling with which they disagree. Further analysis can be read on ScotusBlog.
Last year, Utah Senator Orrin Hatch declared that "anyone who still thinks that marriage equality is still up for debate in all fifty states isn't living in reality." Senator Mike Lee, also of Utah, disagrees. Last week, NPR reported that Senator Lee filed what he named "The First Amendment Defense Act" bill that would protect individuals and institutions who continue to discriminate against lesbians and gays based upon religious grounds. As an example, Lee said that "... a university with religious affiliations and federal grants should be allowed to deny employment to somebody married to a person of the same sex." He explained that "A religious institution, whether an educational institution or otherwise, just like an individual ought not have to choose between adhering to religious belief and, on the other hand, doing whatever it is that that person or that entity does, there ought not be a penalty attached to a religious belief."
Neither the Alabama petition nor Senator Lee's bill are likely to succeed. In Lee's case, the political fallout for representatives voting in favor of the bill would be severe in the upcoming elections. As for Alabama, the federal judiciary has shown no inclination to defy the US Supreme decision. In a time when vestiges of the Confederacy are falling, decisions that renew state discriminatory supremacy arguments would be ill-thought out and ill-timed.
Then there are the "wedding cake" resisters. In Colorado a same sex couple has sued a baker who refused to accept their order for their wedding cake. The religious freedom arguments made by Senator Lee reflect, in part, the arguments of the wedding cake defense. Other states have found in favor of same sex plaintiffs in the wedding services law suits based upon state laws.
Tomorrow's post will consider strategic and community considerations in bringing law suits against wedding service providers.
Friday, July 10, 2015
On July 8, in Morales-Santana v. Lynch, the Second Circuit Court of Appeals struck down a U.S. citizenship law requiring that citizen fathers comply with more stringent residency requirements than citizen mothers in order to transmit citizenship to their out of wedlock foreign born children. This differential sex-based treatment, the court said, violated the equal protection clause of the 5th amendment.
In 2008, the 9th Circuit Court of Appeals considered the same issue U.S. v. Flores-Villar, and upheld the statute. On appeal, the U.S. Supreme Court issued a one-sentence ruling affirming the 9th circuit decision based on a 4-4 vote; Justice Kagan was recused from that case because of her involvement as Solicitor General.
With the 2d circuit's decision in Morales-Santana, there is now a split in the circuits. But while Kagan would not likely be recused from Morales-Santana, vastly increasing the likelihood that the decision would be affirmed on appeal, the current administration may simply accept the ruling and forgo further review.
The law at issue is one part of a broader sex-based US citizenship law that can be traced to a deep history of stereotypes regarding parental responsibilities and women's supposed lesser capacities to operate as full citizens. Another sex-based aspect of the law -- regarding paternity establishment -- was upheld by the US Supreme Court in Nguyen v. INS. Similar sex-based conditions on citizenship transmission are imposed in dozens of countries, and Equality NOW is leading global advocacy efforts to equalize the laws through the courts and using international pressure.
The Morales-Santana decision is a small but decisive step toward such equal citizenship. Exercising intermediate scrutiny, the Second Circuit rejects the government's arguments that sex-based residency requirements are needed to avoid children's statelessness, or to ensure ties between the child and the parent. Further, the court "equalizes up," extending the more generous benefits to fathers rather than holding mothers to more stringent residency requirements.
In recent decades, many U.S. lawyers, including this author, have challenged aspects of these sex-based laws, with only minimal success. But perhaps the tide has turned. Kudos to the Stephen Broome and his colleagues at Quinn Emanuel Urquhart & Sullivan, along with the many lawyers who contributed to developing the arguments in this case, particularly Professor Kristin Collins of Boston University, the historian whose account of the origins of this law was cited by the court. As a result of this decision, Morales-Santana is deemed a citizen at birth based on his father's residency, and is no longer subject to detention or deportation.
Wednesday, July 8, 2015
One of the lower keyed but significant changes that happened during the whirlwind of opinions and celebrations was the solidification of human rights language in official government comments. Two branches of our government engaged language of spirituality and human rights principles.
In his Rose Garden comments following the release of the Burwell decision, President Obama noted: “We finally declared that in America, health care is not a privilege for a few, but a right for all.” For the moment, the country could focus on our obligation to provide all citizens with basic health care, shifting the perspective from health care as a privilege to a fundamental right.
As has been well reported here and elsewhere, Justice Kennedy continued his theme of dignity in same sex relationships when he referenced dignity as a foundation in recognizing the right of same sex partners to marry. ‘The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm… They [the plaintiffs] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
In his moving eulogy of Celementa Pickney, President Obama alluded to the everyday affronts to their dignity that African Americans experience. “That's what the black church means. Our beating heart. The place where our dignity as a people is inviolate.”
What the President alluded to and what is unstated in Justice Kennedy’s opinion is an accounting of the daily pain suffered by members of excluded communities. Microagressions are the “small” indignities that are suffered due to bias, implicit or explicit.
Thanks to the human rights references of recent weeks, the language is embedded in the American lexicon. Language will not bring a sudden end to danger for gays or blacks, or create an immediate political shift toward providing for the poor. But the language of dignity and community obligation lays the foundation for cultural change.
Wednesday, July 1, 2015
Last week, human rights advocates around the country – and indeed around the globe – celebrated the majority opinion in Obergefell v. Hodges. In the coming days, weeks, and years, scrutiny of every passage of the Supreme Court’s opinion will continue.
One short passage in Chief Justice Roberts’ dissent should not be overlooked, as its implications for access to justice are potentially far-reaching. Near the end of his dissent, the Chief Justice wrote:
“[H]owever heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.”
Setting aside the fact that the Chief Justice offers no empirical evidence to support this claim that true acceptance is won only by pursuing change through the legislature, the statement is an ominous warning to others who suffer discrimination: pursue justice through the courts and you won’t be truly accepted. Ever.
Taken to its logical conclusion, it appears Chief Justice Roberts would take the view that African-Americans should not have pursued Brown v. Board of Education and other challenges to discriminatory treatment, but instead should have tried to win the hearts and minds of whites through state legislative initiatives. Likewise, women should not have challenged discrimination in the workplace or elsewhere but should have awaited “true acceptance.”
The courts by their very nature exist to protect individuals who are subjected to discrimination and other rights violations and are unable to avail themselves of legislative solutions because they are not part of the majority. Maybe it was a moment of hyperbole as the Chief Justice tried to assert the issue was one for the legislature. Still it’s worrisome when the Chief Justice of the highest court in the land espouses the view that it is a mistake to challenge discrimination through the courts.
Thursday, April 2, 2015
In her recent column on the importance of participation in budgeting, JoAnn Kamuf Ward writes, “Many lawyers are not numbers people, but we ought to be.” A critical reason for human rights lawyers to pay more attention to numbers is the nature of economic, social, and cultural rights: under human rights law, they are tied to the state’s obligation to use the maximum of its available resources.
Determining whether a government is meeting its obligation to use “maximum of its available resources” (ICESCR article 2) necessarily requires a review of state budget expenditures. For example, if the gross domestic product of a state obligated to ensure education rights is increasing each year, but the education budget is not, or if a country's defense spending increases by a significantly greater percentage than its education budget, the state might not be using the maximum of its available resources to achieve progressive realization of these rights and thus would be failing to comply with international human rights law.
Budget analysis can help monitor states' practices, ensuring that they do not use the resource qualifying language of economic, social and cultural rights as an excuse not to secure these rights for individuals subject to their jurisdiction. Budget analysis can also suggest areas in which there may be discrimination in the provision of services (of note, the prohibition on discrimination is not qualified by available resources). Additionally, it can highlight areas where government has failed to spend allocated funds. Fundar, working with international partners, produced some of the early research on budget analysis, assessing the Mexican Government's budget and identifying a number of issues regarding whether Mexico is meeting its international obligation to protect the health of its population using its maximum available resources. It offers a model for determining what a national or local government is required to do to secure economic and social rights for its population (see also IBP for additional resources on budget analysis).
Budget analysis has limitations. It will not necessarily reveal whether resources are used effectively or efficiently. That said, it can provide a starting point for determining whether a country is using its maximum available resources. Combining budget analysis with the content of specific provisions, such as health or education rights, can enable human rights scholars and advocates to assess, with greater precision, states' compliance with human rights law.
Tuesday, March 3, 2015
Professor David Sloss of Santa Clara Law School, has just posted a fascinating study and re-thinking of the relationship between U.S. constitutional race jurisprudence and international human rights law, titled How International Human Rights Law Transformed the U.S. Constitution.
Forthcoming in 37 Human Rights Quarterly, 2015, the article is currently available at Santa Clara Univ. Legal Studies Research Paper No. 415 and through SSRN.
Here is the Abstract:
Tuesday, February 24, 2015
Many in social media and elsewhere have weighed in on Academy Award winner Patricia Arquette's statements at the Oscar award ceremonies, where she won Best Supporting Actress for her role in Boyhood. In her acceptance speech, she called for equality for women, and particularly for equal pay. Mega-stars Meryl Streep and Jennifer Lopez whooped their approval. But in a press conference following her award, Arquette elaborated and urged LGBTQ activists, people of color and others to get behind women's equality. Some criticized her for minimizing the equality struggles of these groups and seeming to suggest that they should wait their turn. Later, Arquette tweeted that "[w]age equality will help ALL women of all races in America. It will also help their children and society." With that, maybe this tempest can be laid to rest -- or better, taken as an opportunity to expand the conversation, as thoughtfully suggested by Imani Gandy at RH Reality Check.
Meanwhile, what has received virtually no attention is Arquette's perspective on American exceptionalism. Said Arquette during her press conference: “Equal means equal. . . . It’s inexcusable that we go around the world and we talk about equal rights for women in other countries and we don’t [address it here.]”
Arquette specifically called for passage of the Equal Rights Amendment. CEDAW ratification would, of course, also continue the pressure to achieve women's equality within the U.S. But whatever the legal vehicle for promoting greater social equality, everyone who cares about the plight of marginalized groups in the U.S. should applaud Arquette's willingness to speak out to millions of Americans with the message that human rights begins at home.