Human Rights at Home Blog

A Question of Pride - Will Legal Advances Stand?

By Prof. Jeremiah Ho

This year’s June LGBTQ Pride Month is distinctive because it marks the 50^th anniversary of the Stonewall Riots.  A half-century ago, New York City police raided the Stonewall Inn, a cramped gay bar in Greenwich Village.  That harassment incited a six-day riot from gay patrons and neighborhood sympathizers.  In LGBTQ history, the Stonewall Riots represents a defining moment of acting up and symbolizes the threshold of the gay liberation movement of the 1970s, which ultimately transformed LGBTQ visibility.    

This past year has brought other LGBTQ anniversaries.  Last October was the 30^th anniversary of National Coming Out Day.  This past February marked 15 years since Massachusetts first legalized same-sex marriage.  There is much to commemorate. 

Yet, not all anniversaries this June are celebratory.  A year ago, the Supreme Court reversed a Colorado ruling that a Christian baker’s refusal to sell a wedding cake to a same-sex couple was discriminatory.  In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court protected the baker’s religious freedom by finding that the lower proceedings had been tainted by religious hostility—even when the same-sex couple’s sexual orientation discrimination claim was sound.  Some legal commentators have since questioned the Court’s grounds for finding religious hostility.  

Before Masterpiece, full equality for LGBTQ individuals seemed inevitable.  The Supreme Court had protected LGBTQ people from legislative animus, de-criminalized their sexual relationships, and overturned the Defense of Marriage Act.  In 2010, Congress repealed Don’t Ask, Don’t Tell.  Progress culminated in 2015 when the Supreme Court recognized same-sex marriages in Obergefell v. Hodges.  Love won—as the popular saying went.

But Masterpiece and the current lack of full equality loom over this Pride Month, especially as Stonewall’s anniversary approaches. 

Aside from the Supreme Court’s questionable interpretation of religious hostility in Masterpiece, the problem with last year’s wedding cake case reveals a hurdle for current LGBTQ activism.  This hurdle was one that Stonewall, in part, externalized and what turned the conformist style of gay rights activism of the 1960s into its 1970s radical liberationist incarnation.  In the quest for equality, some gays, unfortunately, tend to get ahead of others.  

To win marriage equality in 2015, the same-sex couples in Obergefell had to show that their interests in marrying converged with the interests of mainstream America to uphold traditional marriage.  In his studies on American racial progress, the late Derrick Bell, NYU legal scholar, had called this strategy “interest convergence.” 

• Achieving interest convergence in Obergefell meant that the same-sex couples could not threaten the mainstream status quo of America while seeking one of its most prized institutions.  The strategy was conformance, assimilation, and respectability.  The couples resembled mainstream straight married couples by exhibiting cultural, economic, and gender norms that aligned with the status quo.  A 2015 Yale Law paper explored just how assimilated these same-sex couples were in Obergefell.  See Cynthia Godsoe, Perfect Plaintiffs, 125 Yale L.J. F. 136 (2015).  The couples looked all-American in the upper-middle class, mostly-white, professional, and family-oriented sense, and made marriage equality an issue seemingly confined to a small, elite segment of the LGBTQ population.  That strategy worked.  Love did win. 

But the strategy also relied on gay elite privilege to overcome a legal struggle for equality.

Last year, the same-sex couple in Masterpiece did not resemble the same-sex couples in Obergefell.  Without children and upper middle-class professions, they didn’t seem as “all-American” or mainstream.  In public, their hairstyles and clothing blurred gender lines.  The two men, Charlie Craig and David Mullins, even dared to kiss outside the Supreme Court building.  Culturally, they were queer, not assimilated.  And their plight against discrimination pitted their queerness directly against anti-gay Christian beliefs—threatening another status quo institution:  religion.  Interests didn’t converge then.  Instead, the status quo felt threatened and so the baker won.    

Thus, equality bears a conditional message for gays:  resemble the mainstream or your chances for equal treatment are attenuated. 

In spirit, Stonewall and the gay liberation movement of the 1970s urged against surrendering visible, authentic lives for compromises that assimilation and respectability might bring.  The LGBTQ movement must do better to show mainstream America that there are others to recognize.  In my forthcoming article from the Yale Journal of Law & Feminism, I detail further the status quo anxiety in Masterpiece and propose a shift away from identity politics to broad coalitions premised on democratic values.  A preview of the piece is available here.

Moreover, in the next Supreme Court term, three cases of employment discrimination against gay and transgender individuals will also allow the movement to re-examine its strategies.

Yes, marriage equality provided progress and the Obergefell plaintiffs were true to their own struggles.  But when discrimination in employment, housing, and public accommodations still affect LGBTQ individuals, marriage equality was not full equality. 

So this Pride Month when we see those “Love Wins” signs again, we must also ask:  when will queer win? 

 

Helping To End Mass Incaceration: Reducing Prison Populations Through State Action

With the focus on elimination of mass incarceration and ending inhumane prison practices, the Pew Charitable Trusts have examined what works.  With its motto of "Using Data to Make a Difference",    their research has shifted from finding methods of changing attitudes for those incarcerated or at risk of incarceration to shifting criminal practice and policy to prevent incarceration in the first instance.

South Carolina, for instance, has seen a 14% reduction in numbers of incarcerated individuals since providing options for both sentencing and release.  The enacted legislative reforms reduced penalties for minor drug and property crimes, while release options expanded with community supervision expanded.  During the six year period covered by the study (2010-2012) six prisons closed, the crime rate decreased and the existing prison population is largely more violent criminals. 

Since 2010, 35 states have raised felony theft thresholds but experienced no increase in crime.  Generally, all US states have experienced a decrease in crime.

"Experts attribute the nation’s sustained drop in violent and property crime rates to a host of factors, including better policing; the increased incarceration of certain repeat offenders; an expansion in private security personnel; an aging population that is less prone to criminal behavior; and technological advances, such as the widespread use of surveillance cameras, car- and home-alarm systems, and digital transactions that have reduced the need for cash."

The US prison population is still the largest in the world. But what is apparent is that shifts in state policy make significant differences.  Both federal and state prisons remain the sites of gross human rights violations, with the states incarcerating the clear majority of those engaged with the criminal justice system.  Even seemingly small legislative changes can make significant differences.  A good reminder that local human rights advocacy can create important change.

 

 

Working Towards War: Mueller's Choice?

By Margaret Drew, UMass Law School

Signs indicate that two powerful forces are escalating simultaneously.  

The periodic threat to fire Secretary of State Tillerson will inevitably lead to actual firing, particularly now that a potential successor has been named.  Replacement was inevitable following Tillerson's public acknowledgement that he called the President a moron.  The speculated replacement is Mike Pompeo, CIA director.  Pompeo disdains negotiation with those known not to support the US.  Iran, for example, is a country Pompeo says he would not negotiate with.  As the President increases his noises around North Korea, the more war with North Korea seems inevitable.

At the same time, Special Prosecutor Mueller's investigation is accelerating.  A deal has been struck with Michael Flynn in exchange for his ongoing cooperation with Mueller's investigation.  Reportedly Jared Kushner is one of those against whom evidence is mounting.  The closer Mueller probes Trump family members, the more likely we will see aggresssive and destructive backlash.  

War with North Korea can be manipulated in several ways.  War can be the distraction Trump seeks from the Mueller investigation.  Historically, the country has been reluctant to change leaders during war time. If Trump perceives that he will be forced out of office, he may leave the White House after doing the most harm as possible.  Nuclear exchanges with North Korea would be one way to inflict serious damage.

But there is an alternative.  Rather than firing the special prosecutor, Mueller could be given the option of indicting the President or Trump family members, or stopping the investigation and avoiding the consequences of war.   Will it be Mueller's choice?

 

Dispatch from Mexico City

The Law and Society Association conference, held this year in Mexico City, was the usual whirlwind of panels, roundtables and plenaries.  This year's theme was Walls, Borders and Bridges.  Nothing could better illustrate the Walls portion than the  fortress-like US Embassy directly across the street from the conference hotel. The Embassy appeared completely impenetrable. At the same time, it boasted a large rainbow Pride flag hanging out of some upper floor windows.  Perhaps there is life somewhere within the embassy after all, trying to make a connection with those outside.

The conference plenary sessions focused on populism and constitutionalism, with insightful talks on the US election, Brexit, and the Colombia peace referendum rejected by voters.  Human rights -- particularly issues of economic, social and cultural rights -- was a frequent theme of the individual sessions, which also reflected the confounding theme of US human rights exceptionalism.  Business and human rights also played a prominent role.   In a session on comparative water rights, one speaker noted the relevance of human rights to water litigation in India and South Africa.  Another panelist, providing an extensive analysis of the Flint, Michigan water crisis, focused on the growing popular movement in the US for water rights.  As she noted "water is power" and power will not shift in the US without pressure from people.  Other panels of relevance to the US addressed the continuing impacts of Washington v. Davis on civil rights and death penalty advocacy in the US; the experiences of undocumented immigrants within US borders; the jurisprudence of the InterAmerican system; and low wage workers' rights.  You can search the program and download papers here.

There is so much to absorb at an inter-disciplinary, international conference like this.   As the title of the conference suggests, the Law and Society Association is very much about building scholarly bridges to support the innovation that can come from such interchange.  But with an embassy closed-off to the outside, and government institutions that often refuse to engage with human rights norms, the task of building bridges between the US and others beyond the academy is harder than ever.  

 

No Flowers for You: The Washington Supreme Court Sides with Same-Sex Couple in Flower Shop Case

by Jeremiah Ho

Criticizing another’s garden—or perhaps wedding bouquet, here—doesn’t keep the weeds out of your own.  The Washington Supreme Court has rendered a decision in the case of a florist’s refusal to provide flowers to a same-sex couple for their wedding.  The florist had justified her refusal based on her religious beliefs.

The decision responds to allegations that the florist’s refusal to sell flowers to a gay couple, Robert Ingersoll and Curt Freed, for their wedding violated the public accommodations provision of Washington state’s antidiscrimination statute.  Previously, the florist, Arlene Stutzman, had defended on First Amendment doctrines of free speech, religious exercise, free association, and hybrid rights, as well as free exercise of religious under the Washington state constitution.  She and the floral shop (as corporate entity) had lost below and then appealed.   

In 2006, Washington state added “sexual orientation” as a protected class.  Also by state referendum, the state legally recognize same-sex marriages beginning in 2012.  Although in almost every aspect, Stutzman, claimed narrowly that her justifications for refusal to sell to plaintiffs-respondents, Freed and Ingersoll, were based on her objections to a wedding ceremony that contradicted her religious beliefs and not the same-sex marital status or sexual orientation of the respondents, the court was not persuaded on such narrow grounds.  Rather, the court reject such status-versus-conduct distinctions and observed that Washington’s antidiscrimination statute was mandated “to be construed liberally” to decide whether or not her refusal to sell was sexual orientation discrimination.  The court also found that the antidiscrimination statute had no requirement for a balancing of religious rights against rights of members of a protected class. 

All in all, the ways in which Stutzman legally couched her justifications on religious grounds were not new legal arguments in the court battles between religious freedom and sexual orientation antidiscrimination.  The court’s ruling seems to pull the veil down on those tactics to reveal the strawman arguments based on blanket constitutional First Amendment guarantees that religious litigants make when defending against discrimination claims—i.e. religious belief arguments made by the perpetrators of the discrimination that artfully prompt either narrow or broad readings of their discriminatory conduct in order to obfuscate the discriminating nature.  For instance, Stutzman narrowly rationalized her refusal to sell flowers as an objection to the wedding ceremony of same-sex couples based on religious grounds rather than a refusal to sell based their sexual orientation. The court declined to entertain that narrow reading by rejecting her conduct-versus-status distinction (same-sex wedding v. sexual orientation) based on recognition by the Washington state statutes that “all discriminatory acts,” including those that have direct or indirect results in any marginalization based on sexual orientation, is a violation.  In other words, she couldn’t narrowly reinterpret her conduct to an objection against same-sex wedding ceremonies based on her religious beliefs in order to skirt violations under the anti-discrimination statute.  She can’t conveniently “forget” the other half of that equation to dodge discrimination: the fact that the couple in this wedding happened to be gay.  Talk about not denying Ingersoll and Creed their dignity and humanity.            

Additionally, here’s an example of how Stutzman broadly construed her actions when it suited her.  She defended her case by also claiming that the Washington state antidiscrimination statute violated her First Amendment free speech rights because making her sell her flowers to Ingersoll and Creed would have been a coerced endorsement of same-sex marriages that would counter her religious convictions.  The court was not persuaded by this “compelled speech” argument because the commercial sale of her floral wedding arrangements could not be viewed as expressive speech “in a literal sense.”  Rather, it was conduct that did not intend to communicate a message—i.e. it was not “inherently expressive” conduct that then could be coerced or compelled.  

Last week’s decision in this case shows that a discriminatory party cannot use religious beliefs to argue, either narrowly or broadly, to skirt accusations of discrimination.  One cannot in such ways hide behind religion by saying one’s religion led to a discriminatory act.  It’s still discriminatory, even if it is religious. 

But as her attorney alluded since the decision, a request for appeal to SCOTUS is forthcoming.  So stay tuned. 

Don’t toss that bouquet just yet. 

Actually,Trump May Make America Great Again

There are signs that President Trump is right. He will make America great again.

For the first time in decades, Americans have revived the art of demonstration and protest.  The Women's march brought out an estimated 5 million demonstrators worldwide.  The demonstrations have empowered others to protest.

Since then, there have been daily protests triggered by the President's immigration executive orders. Other actions have been successful.  Women messaged Nordstrom that they would no longer shop at the chain because the store sold Ivanka Trump products. The store announced that it will no longer sell Trump goods due to declining sales. (In further evidence that everything is personal with this president, he tweeted the unfairness of Nordstrom's decision.)

Protesters stopped using Uber because its CEO, Travis Kalanick, agreed to be part of Trump's economic advisory council.  Employees challenged Kalanick, asking what it would take for him to leave the advisory council.  Apparently, it took over 200,000 customers deleting their Uber accounts while New York taxi drivers  advertised Uber's connections to Trump.  Uber drivers, particularly immigrant drivers, made known their unhappiness while Uber's competitor, Lyft, pledged to donate $1,000,000 to the ACLU.

Many Americans are waking up to preserve democracy.   Despite the accepted belief that politicians lie, many are unwilling to accept "alternative facts" and hate mongering.  

More mayors declared sanctuary cities. Governors announced they would challenge the immigration executive orders.

Judges entered temporary restraining orders, barring implementation of Trump's immigration executive orders, the latest one entering a national ban on the travel ban.  

So for now, many Americans have risen to the crisis.  That has made America great again.

Here is the challenge.  Americans have responded to crisis - to the outrageous and the dramatic.  Will they sustain activism when the dramatic subsides and the constitutional threats are more subtle? 

 

 

 

 

 

 

 

Gay Weddings Revisited

By Jeremiah Ho

 

Today, the Washington Supreme Court hears the case of a florist who refused service to a gay couple for flowers for their wedding.

The case is Robert Ingersoll, et al. v. Arlene's Flowers, Inc., et al. and the link to the briefs of parties and amici is here. The florist, Barronelle Stutzman, of Arlene’s Flowers in Richland, Washington, had denied providing flowers for the couple’s wedding based on concerns that doing so would have violated her religious freedom.  However, last year, a lower court judge had ruled that Stutzman’s refusal violated Washington’s anti-discrimination bill.  The Washington State’s Attorney General Bob Ferguson is arguing on the gay couple’s behalf.   

Editor's note: This is an issue that is likely to come before the US Supreme Court after the "9th" is appointed.

The New Dignity Conversation

by Jeremiah Ho

 

I would agree with a recent NPR article online about the disjointed, state-by-state progress for gay rights in 2016, a year after marriage equality had prevailed at the Supreme Court. (See 2016 Has Been a Mixed Bag for LGBT Politics)  In part, that’s understandable as we have been preoccupied with electoral politics since that time.  It's also very much in line with how the incremental politics of gay rights progresses in general when a state has obtained marriage equality.  Things slow down for a little bit for gay rights.

 

But that's not to say that this slowing is excusable.  The divisive Presidential election is over.  LGBTQ individuals still deserve the full equality and anti-discrimination protections that they do not yet fully possess.  In the year after marriage equality, we have seen the backlash toward LGBTQ people in various context from healthcare to bathrooms.  Last week, the most recent case to be taken up by the Supreme Court hopefully is our next wake-up to moving on with what is left to be done in fulfilling advances for sexual minority protections and rights under the Constitution.  The Gloucester County case, which we recently posted on, has now crystallized into our next step. However, several challenges do exist to affect whether or not a victory will be eminent for transgender individuals facing public discrimination over the right to access the bathroom that reflects the gender with which they identify. The composition of the High Court with only eight Justices is one possibility that whatever ruling they give will not necessarily be as solid as if there were a full Court of nine Justices.  What if the Court reaches a decision where the eight justices were to divide evenly on the doctrinal resolution of this issue?

 

Despite that uncertainty for doctrinal progress in that event, incremental politics of LGBTQ equality and rights advancement must continue to urge that sexual minorities are seen in the politics of dignity and respect.  The last major words that the Supreme Court had in regards to the rights of sexual minorities--meaning from the decision to extend the fundamental right to marry same-sex couples--were written in a politics and a connotation of subdued and restrained respect for same-sex couples.  Despite the legal significance for same-sex couples, the Obergefell v. Hodges decision couched their rights within a reverence for traditional marriage. Sure that did  give gay couples the right to marry. But it was done in a way that showed how much they qualified for traditional marriage--instead of saying that same sex couples could create their own merits for unions without qualification. But only because under equality principles they always should have been allowed to do so.

 

Now with transgender bathroom rights, we have a new opportunity to use the existing dignity rhetoric from cases such as Lawrence v. Texas (and not the marriage cases, Windsor or Obergefell) to articulate the respect for sexual minorities for inherently who they are.  Even if doctrinally the advancement for LGBTQ anti-discrimination were to receive a less stable and lasting treatment because of a gridlocked 4-4 decision by the High Court, I hope that the conversation about the right for transgender individuals to choose their own bathrooms will be framed within a discussion of respect and dignity for inherently who they are and not the respectability rhetoric left over from Justice Kennedy's marriage equality decision.  A new conversation of respect and dignity in this context free from the marriage decisions would hopefully give us a restart toward the preferred inherent dignity and respect that will more easily move us to further progress for the advancement of sexual minority rights without and away from the lens of heteronormativity.  Even if that is the only thing that comes from the Gloucester case, I would find that as a welcomed victory because it'll set us up better for the next challenge.

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.

UN Recommends Reparations for US Racial Discrimination

The Working Group of Experts on People of African Descent was established in 2002 by the Commission on Human Rights.  Among the Group's 2008 charges were to study the problems of racial discrimination faced by people of African descent living in the diaspora and, to that end, gather all relevant information from Governments, non-governmental organizations and other relevant sources.   The means of gathering relevant information include holding  public meetings.  The Group is instructed to  propose measures to ensure full and effective access to the justice system by people of African descent.  

The findngs document a US history of racial terrorism.  Among the working group's findings are: "In particular, the legacy of colonial history, enslavement, racial subordination and segregation, racial terrorism and racial inequality in the United States remains a serious challenge, as there has been no real commitment to reparations and to truth and reconciliation for people of African descent," the report stated. "Contemporary police killings and the trauma that they create are reminiscent of the past racial terror of lynching."

Recognizing police killing of unarmed black men as having created a crisis, the Working Group reports that there is a sense of urgency to resolve this human rights crisis. 

The Working Group made many suggestions that would go a long way in remedying institutional racism.  Among the recommendations are:

                    Immediately abolish police in schools.

                    Police misconduct investigations to be conducted by independent investigators.

                    Misdemeanor laws that result in the over-charging and over-incarceration of people of color be abolished.  One example given is South Carolina's law making a school disturbance a misdemeanor.

                    That younger prisoners be separated from adults and male prisoners from female ones.

The Group addressed reparations as one remedy.  From apology and debt cancellation to educational and healthcare opportunities, the Group addressed steps that are critical to addressing the consequences of societal and institutional racism.  

The problem with reparations is that in order to arrive at a place where Americans endorse them, the place where the culture is ready to recognize the harm must first be reached.  We are a long way from there.  Achieving recognition of the state's contributions to extreme suffering forced upon African Americans is not hopeless thanks to the new wave of activism, including Black Lives Matter.  However, President Obama' election unleased racism across the country.  Undermining the power of the first black president became the goal of those in the political and social systems.  The fact that any new social legislation passed over the past eight years is nothing short of a miracle.  The racism obvious in the current presidential election politics provides a vehicle for individuals to act on their persistent white supremacy beliefs.  We will find out soon if political racism can be defeated in our upcoming elections. 

But as the working group found, racial terrorism has created a crisis in America.  Perhaps this crisis will collide with new wave activism and create a real opportunity for the country to admit the heinousness of the aftermath of slavery.    One day it may be that a series of crisis or one horrendous crisis will result in a serious discussion on how to repair the damage we have done.  

The findings are worth a read in their entirety.  The Group brings to its report the clarity that often comes from outsiders looking in.  The diagnoses of the problems is accurate and the suggested remedies thoughtful. 

          

 

Taxing Equality: IRS Catches Up on Same Sex Regulations

Since 2013, the Internal Revenue Service has issued guidelines for same-sex married couples seeking guidance on tax treatment of their income tax returns.   Essentially, the publications explained the law that has been applicable to different sex spouses for many decades.  Of interest, the definition of a legal marriage looks to both domestic and foreign law and gives a broad definition on how and which marriages will be recognized for federal tax purposes.  That definition was important for couples who married in one state but lived in a state that did not recognize same sex marriages.   The Service had made it clear that it would look to the state of the marriage and not the state of domicile in  determining the couple's marital status.

Now the IRS has issued regulations (as opposed to prior guidance) addressing same sex marriage issues.  The updated regulations are a direct result of the Windsor decision which resulted from an estate tax dispute.  The regulations issued on Friday clarify the interpretation of the words marriage and spouses.  The interpretations are awkward in that they expand the definitions of "husband" and "wife" to include any two individuals married to each other. Perhaps at some point a more cooperative congress will amend the actual language of the Internal Revenue Code to remove the archaic and restrictive language. 

The new regulations make clear that domestic partnerships and other state sanctioned arrangements do not qualify as "marriages" under the new regulations. With the national availability of civil marriage to same sex couples, there is no need for the government to consider arguments relative to the qualification of other forms of union.  The new regulations clarify that the expanded definitions apply to income, estate and gift tax statutes and regulations. 

RNC - LBGTQ - And Human Rights for Sexual Minorities

by Jeremiah Ho 

 

When I watch the news in this current election cycle and see reports that the RNC platform includes condemnation of  marriage equality successes along with sentiments bolstering traditional marriage, I observe that the RNC seeks to forget the progress in LGBTQ rights from the last several summers, from U.S. v. Windsor to Obergefell v. Hodges.  However, I wonder if the rhetoric isn’t a bit stale.  After all, the ship is supposed to have sailed on the marriage issue.  Last November, the Williams Institute reported that nationally 486,000 same-sex couples were married since Obergefell.  I’m sure the numbers have risen since then.  Did the RNC forget what happened in 2015?

A platform that advances the extremist American exceptionalism that social conservatives desire   seeks to rehash the LGBTQ successes of the recent years—first, as a grudge and then more as an appropriation of the issue of sexual orientation anti-discrimination that stokes the base.  The evidence of such LGBTQ opposition in the RNC platform points to just the sort of partisan processing that is required for the idea of marriage equality—and by proxy, sexual orientation antidiscrimination—to finally set within the national imagination.  From an incrementalist perspective, this opposition is natural and must be played against the countervailing notions of progress and positive attitudes toward LGBTQ individuals in the public media right now.

 

Unfortunately, it is the Orlando gay latino nightclub attack that bookended the year of conversation regarding sexual minorities, stemming from Obergefell.  But from Kim Davis to the debate over bathroom bills and even to the anti-marriage rhetoric in the RNC platform that brings us into the fall elections, the way to read all of this anti-LGBTQ rhetoric must be  from the vantage point of human rights.  Out of the countervailing perspectives on sexual minorities must be a continual understanding that all of these anti-LGBTQ ideas, rhetoric, and advances hurt the essential human rights entitlements that sexual minorities deserve.  We need more media coverage on how to interpret the subtext of anti-LGBTQ rhetoric that results from the RNC platform and pulls away from human rights sentiments.

Additionally, the anti-LGBTQ rhetoric of the RNC platform provides an opportunity for social conservatives and similar anti-LGBTQ movements to harness back the surge to dignify sexual minorities.  Recently, Michelangelo Signorile at the HuffPost Queer Voices section posted an article demonstrating ways in which social conservatives, politically entrenched in the presidential elections, are manipulating the media to seem more “LGBTQ-friendly”. With a published RNC platform that denigrates recent pro-LGBTQ progress, I would agree with Signorile that any LGBTQ-friendliness offers a curious disconnect.  In any event, the progress in the last year has given much leverage for sexual minorities and LGBTQ groups to assert their own dignity and respect.  What ultimately must happen is public recognition that  anti-LGBTQ rhetoric, as currently exemplified by the RNC, is an ugly distraction, and a powerless, irrelevant stance on homophobia.  Thus, the human rights angle is a powerful one,  helped and advanced by  every success within sexual orientation anti-discrimination laws.  I hope we continue to ruminate about this critical human rights issue as both party conventions wrap up in this mid-summer, and as the nation prepares for the fall election.                     

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.         

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! 

Utah and the Dignity Discussion

by Jeremiah Ho 

Last week’s developments in Utah directed against same-sex relationships are reminders that the movement toward equality based on sexual identity continues after the marriage victory this past summer at the Supreme Court. First, the Mormon Church promulgated new policies that declare same-sex couples apostates and limited their children from baptism and other church rites.  Such policies have engendered much harsh rebuke—even from within the Mormon community—and led this past Sunday to a mass resignation of 1,000 church members. 

            The second event in Utah involved April Hoagland and Beckie Peirce, a married lesbian couple, who was ordered by a juvenile court judge to have their 1-year old baby foster daughter be removed from their home and sent to a “traditional” home.  The judge’s rationale for his decision was based on unsupported assumptions that children fare better in homes with opposite-sex parents rather than same-sex parents.  However, by the end of the week, the judge reversed his order  and the couple was allowed to keep their foster daughter.

            Now that same-sex couples have the right to marry and the legal benefits that come with marriage, it has become easier to see how the struggle for equality heavily involves the violation of human dignity.  In both Utah situations, same-sex relationships have been singled out for the kind of denigration described by Justice Kennedy in Obergefell v. Hodges:  the kind that results   in a strong stigmatizing effect for sexual minorities.  It would not be hard to see that the Mormon Church policies convey a lesser worth in the relationships of same-sex couples if their children were punished because of their parents’ sexual orientation.  Likewise, in disallowing the Hoagland and Peirce petition to keep their foster daughter, Judge Scott Johansen singled out the couple in a way that denigrated and placed a negative value on their relationship

            Both situations demonstrate Kennedy’s animus-dignity premise in the Windsor and Obergefell opinions: that the narrative of marriage discrimination for sexual minorities has been one that correlates animus with indignity.   Both attack same-sex relationships from a place of disdain for sexual minorities (animus) and singled out same-sex relationships with the effect of tarnishing them (violations of dignity).  In this way, these two recent cases in Utah demonstrate how Kennedy was very much on point in the description of sexual orientation discrimination.   

            But with these two repeated incidents of the animus-dignity pattern of discrimination occurring in the aftermath of Obergefell, one might ask, why bother?  In the Mormon Church scenario, the purpose itself for the new policies was to make a second-class citizenry out of the families created and maintained by same-sex couples.  While in Haigland and Peirce’s situation, the order to remove their foster child denigrated their relationship. Don’t the actors in these situations understand how this all works? 

            In some ways, I would argue that we need situations like this in Utah to continue to create progress for sexual orientation nondiscrimination.  From an incrementalist perspective, these prejudicial and discriminatory moments—like the denial of services to gay couples by small business owners, like the Kim Davis, county clerk controversy in Kentucky—are necessary to keep the conversation for nondiscrimination alive.  This is not just because such incidents of prejudice and discrimination stoke the conversation regarding sexual identity inequality, but because as far as the conversation is concerned, we have reached a tipping point socially and politically.  The new church policies have been singled out by constituents in the Mormon Church as completely intolerable—even by its own members.  And after controversial media coverage that condemned the Utah judge’s decision, he back tracked on his decision to remove the foster child from Hoagland and Peirce’s care.  At some point, hopefully these instances that marginalize same-sex couples and sexual minorities will be fewer and fewer—particularly when we reach the next tipping point in the conversation.  But for now,  each time such an instance occurs, the conversation around these moments and about discrimination generally should be framed in a way so that the narrative of animus and indignity is exposed.