Barack Says, Take One Big Step Forward

GLBT Fortnight in Review

BY ANN ROSTOW

Barack Says, Take One Big Step Forward

President Obama has added sexual orientation and gender identity to the list of groups that have been protected against discrimination by federal contractors since the Nixon years. Federal contractors employ about a fifth of the nation’s workforce, some 28 million people, so the move is significant.

GLBT groups have been pressuring the POTUS for this executive order for some time now, and President Obama announced his plans to sign such an order several weeks ago. After the High Court’s annoying, and potentially dangerous, Hobby Lobby ruling, a large group of our adversaries began mewling about this proposed executive order, begging the President to add a bunch of extra religious exemptions that would have turned this important new policy into a meaningless gesture. Happily, Obama declined to do so, although a few Bush Two exemptions still remain for churches and some other employers. Most importantly, however, there are no ridiculous exceptions for, let’s say, private companies run by religious nutcases.

It’s critical to note that over the last two decades, corporate America has been something of a gay rights juggernaut. The vast majority of Fortune 500 companies already ban sexual orientation discrimination, as do 86 percent of the top 50 federal contractors, which in turn represent half the total contracted business of the U.S. government. As for trans bias, without going into detail, there is reason to argue that gender identity is already protected under federal law based on court interpretations of Title VII’s ban on sex discrimination.

But here’s the thing. There’s a reason for the old expression “don’t make a federal case out of it.” Yes, trans bias has increasingly been recognized as an offshoot of the sex bias that is impermissible under Title VII. But who wants to file a lengthy, expensive federal lawsuit? Under the executive order, any future problems will be resolved under established Labor Department guidelines. Better yet, companies doing business with the United States will be on notice that discrimination based on gender identity will be a deal breaker.

In short, the executive order is a step ahead for gays and lesbians, but a giant step ahead for transgender men and women. In a second order, Obama also banned trans discrimination in the federal workforce. Bill Clinton had earlier added sexual orientation to the protected classes of federal employees.

--

Is It Finally the End a ENDA?

Meanwhile, almost all of the main LGBT groups have now backed away from the Employment Nondiscrimination Act, realizing en masse that this weak bill could actually do more harm than good for GBLT workers. If ENDA’s religious loopholes were to become embedded into federal law, GLBT discrimination would not just be outside the law as it is now, it would be legitimized; etched into the books themselves.

Then, when you factor in the possible down side of the Hobby Lobby decision, which allowed private companies to insist on religious accommodations, the prospect of widespread GLBT discrimination under ENDA loomed even larger.

We know that ENDA is not going anywhere in this Congress anyway. If we’re going to fight for a losing cause, we might as well fight for a strong losing cause rather than one with fatal flaws. Above all, in this day and age, we should be fighting to include sexual orientation and gender identity in existing federal law rather than carving out a special stand-alone bill, one that can be manipulated to isolate us against the rules that govern every other marginalized class.

--

Hardback Choices

There’s a slew of marriage news this week, which combined with the nondiscrimination order makes for a fairly tedious, albeit positive, column. I was excited to see a headline about Tom Cruise gay rumors, but unfortunately, like Oakland, there was no there there. 

I think that quote is unfair to Oakland, personally. But maybe there was less there there back in the day.

I also read about a double gay murder in Seattle, but although it would have served as a change of pace from policy and law, I found the story depressing.

What’s a girl to do? Do any of us even care about Tom Cruise to begin with? I have an unpleasant impression of the man, and I hate that he was cast as one of my favorite fictional characters, Jack Reacher. Reacher is big. He is strong, enigmatic, unassuming, yet a champion of the underdog. Cruise seems to be small, insecure, controlling and, ironically, easily led. The anti-Jack Reacher, if you will.

Speaking of reading, Mel and I went to a river cabin for a couple of days last week and I took along Hillary Clinton’s new book as my only reading material. I regretted this at once, sitting on a cool river beach watching Mel fish with this giant tome in my lap and a couple of Mexican beers.

Dutifully, I waded through the first chapter and to my surprise found myself quite riveted by the rest of it, which I finished in two days. Embarrassingly, the reason I liked it so much is that it filled in the many gaps in my knowledge of recent international events. Yes, I vaguely remembered that Chinese guy who fled to the U.S. embassy, various captured hikers, pissing contests with Iran, our NATO led air attack on Libya, etc. etc.. But beyond the superficial facts, I was fairly oblivious. And I certainly had no knowledge of the inside details.

I also underestimated the role of Secretary of State, which I guess I thought consisted of flying around, having talks, repeating official U.S. talking points, going to events and running a big bureaucracy. Of course the book was designed to show Clinton in a good light, but it really really succeeded! Now I’m afraid that half the problems around the world are due to John Kerry, because Clinton would have come up with last minute heroics to defuse every situation and flip it around to our favor. Like Tom Cruise and Scientology, I’ve been seduced into the cult of Clinton. Anyway, I recommend it. Seriously. It’s also well written.

I gather some GLBT activists are annoyed with Hillary, who dallied around before finally coming out in favor of marriage equality. Listen, I have done my share of condemning wishy washy politicians in the past. And yes, a lot of our allies spent a lot of time with their toes in the water before joining us. But come on. They’re all swimming now. The Democrats, I mean.

--

Hmm. Now What Shall We Talk About?

Okay, Marriage. Here are the top headlines:

First, the state of Utah has decided to forgo asking for a full court review of the Tenth Circuit’s marriage ruling, and appeal directly to the High Court. This increases the likelihood that the Supreme Court will rule on marriage next summer. It’s great news.

Second, the Tenth Circuit issued a 2-1 ruling striking the marriage ban in Oklahoma, as expected.

Third, various clerks in Colorado, which is covered by the Tenth Circuit, decided to offer marriage licenses based on the fact that their governing federal appellate court had ruled in favor of equality. In addition, a state court judge in Denver ruled that the state marriage ban was unconstitutional, but put his ruling on hold. That did not stop Denver clerks from issuing licenses, which they proceeded to do until the state supreme court told them to stop.

I gather that other Colorado clerks are continuing to issue marriage licenses to same-sex couples, but to be honest, the entire situation in Colorado now confuses me.

Fourth, a state judge in Monroe County, Florida, legalized marriage for the Key West area, but also stayed his ruling.

Fifth, the Supreme Court has put a stay on a federal court ruling that ordered Utah to recognize all the marriages that took place during the three week window of opportunity last winter. Those marriages were recognized by the federal government, but not by the state.

Sixth (I told you there were a lot of marriage headlines), the U.S. of Appeals for the Seventh Circuit seems poised to combine the Indiana and Wisconsin cases and move directly to a review by the entire court. This would not be good. Of the ten active judges on the court, seven were nominated by Republicans and three were nominated by Democrats. One of those Republicans, the venerable Richard Posner, defies pigeonholes and is arguably on the side of equality. I’m not sure about the others, but let’s just say that it might be a heavy lift to get the full court on our side.

The court has yet to decide what to do, but suspiciously, the court cancelled previously scheduled oral arguments in order to discuss whether or not to skip over the usual three-judge panel and go straight to the full bench.

Please forgive me if I’ve forgotten anything. At this point, I’m waiting for the Fourth Circuit to rule on the Virginia case. Next month, we have a big day of oral arguments before the Sixth. In September, we’ve got oral arguments before the Ninth. Who knows what’s happening in the Seventh? And the Fifth Circuit is straggling along like a toddle ordered to leave the playground. The timeline won’t really matter once Utah petitions the High Court and once the Court decides whether or not to dive in.

--

SCOTUS Won’t Duck

Speaking of the High Court and marriage equality, I have read a number of articles speculating about whether or not the Supremes will accept a marriage case for review this year, or whether they might not wait until several appellate courts have delivered their opinions. I even heard a legal correspondent suggest that the whole issue of marriage equality might be settled in a piecemeal fashion, as the various appellate courts rule one by one in our favor.

Say what?

I suppose the High Court could have ducked the Tenth Circuit if we had lost. After all, there are other cases in the pipeline, and our loss would have maintained the status quo in that jurisdiction.

But we won!  If the High Court does not accept review of our victory that means marriage equality quickly becomes the law in Utah, Oklahoma, Colorado, Kansas and Wyoming. If the High Court declines review, it means the justices think it’s fine for marriage restrictions to be unconstitutional in some states, and constitutional in others.

If they don’t accept review, they’d be hard pressed to put a stay on future appellate victories.

If they don’t accept the Tenth Circuit cases, and if they eventually accept some other case down the line, could they really rule that marriage restrictions are in fact fine, and that the aforementioned states have the right to re-enact their antigay constitutional amendments?  Yes, it’s true that the High Court often waits until there’s a split in the appellate courts. But if they do that in our cases, they will tie their own hands. Once a few appellate courts rule that marriage equality is a constitutional mandate, the High Court cannot reverse months, or maybe years, of what will then have become a fact of life in many parts of the country.

Believe me, I want the High Court to take the Utah case. In an odd way, I suppose it would also be good news if they did not, because it would uphold a victory, extend marriage rights, and make it virtually impossible to go backwards. But still, this is the Court we want to settle the issue.

The High Court is likely to get more conservative before it gets less so. We have to win marriage equality now, next June, next session. And unless I’m missing something, which you all know is highly unlikely, the Court cannot turn its back on this issue. Not even for one case.

--

arostow@aol.com

Utah King To Me!

GLBT Fortnight in Review, July 8 2014

BY ANN ROSTOW

 

 

Utah King To Me!

 

My last column ended with a bang. No sooner had I filed the tedious accounting of GLBT civil rights news dribs and drabs than came news of marriage rights being granted by a federal judge in Indiana. With the help of the intrepid editors at the Bay Times, we added a little editorial note, and then five minutes later, Kaboom! A split 2-1 panel of the U.S. Court of Appeals for the Tenth Circuit ruled in our favor in the Utah marriage case, the first of its kind to make its way through the federal appellate courts, one rung down from You Know Who. (I am not counting the anomalous Prop 8 ruling in the Ninth Circuit.)

 

In the two weeks that followed, we’ve witnessed the now familiar chaos of a marriage window in Hoosierland, a window that was slowly shut by successive legal maneuvers. You can’t get married in Indiana at the moment, but quite a few couples managed to tie the knot before the opening closed. Indiana is part of the Seventh Circuit, so this case will join, or let’s say accompany, Wisconsin on its trip up the judicial ladder.

 

Also, let’s note that the Oklahoma marriage case was argued only a week after the Utah case, and before the same three-judge panel that just ruled in our favor. So where is that decision, we may ask? I vaguely recall that the Oklahoma case has some procedural complications, so maybe that accounts for the delay. But I actually suspect that the Tenth Circuit is waiting for me to file this column. Then, after about ten minutes, the panel will rub their hands together. “She’s all finished! Release it now!”

--

 

Alito Makes Scalia Look Good

 

Meanwhile, the main story for this column has to be the Supreme Court’s Hobby Lobby opinion, and the related move by the court to issue an injunction in favor of the conservative Wheaton College.  

 

You know, readers. I’ve been following this case. I’ve followed a lot of cases that attempt to resolve the tension between religious freedom and civil rights. But down comes this major opinion at a time when I am on vacation, moving seamlessly between grandchildren play time and drunken partying with their parents.

 

Oh! I’ll just read that Hobby Lobby opinion. But wait. Here’s a naked four year old who wants to go on a jet ski! And I have to tell a story. And we need to find a juice box. And now there are tears! Accusations! She scratched me on purpose! Yet there is no mark. Where are their parents?

 

And later when the kids are sleeping. Who wants a cherry Marguerita? Who’s going star gazing on the lake? Here’s a giant bottle of wine being passed around the fire. Does anyone want to stop to read the Supreme Court opinion? I think not.

 

But I wasn’t worried. I’ve covered this area of law for twenty years. I’m no lawyer, but certainly, once vacation is done, I can read an opinion and some commentary and form my own trenchant analysis, right?

 

Wrong.

 

As I write to you, I have indeed read the opinion and the dissent, along with a bunch of other articles. It’s the job of a Supreme Court analyst to come up with the implications, superficial and profound, of every decision. But although I’ve often tried to be one, I’m not really a Supreme Court analyst, so I can tell you this: this opinion is an enigma. We have no way to know whether the decision is, in Justice Kennedy’s opinion, a narrow interpretation of a federal statute. Or whether, in Justice Ginsburg’s opinion, it’s a break down in First Amendment jurisprudence. We just don’t know. It could be either.

 

The opinion (which I’ll get to) was written by the man that I consider to be one of the very worst justices in High Court history. Samuel Alito is not just conservative, he operates outside the restraints of constitutional law itself. He makes stuff up. He twists stuff. He simply ignores important legal tests. He picks a decision and then backs it up with whatever complete bullshit sounds like it might make sense. He has done this before (check out his dissent in the Hastings Law School case) he has done it here, and he will no doubt do it again.

 

So let’s look at the Hobby Lobby case. It’s complicated to the max. As you know, Hobby Lobby is a private for-profit company that is run by conservative Christians. The owners did not want to fund insurance for four types of contraception that they considered were virtually the same as abortion. Plan B, IUDs, two other things. Under Obamacare, employers must provide full coverage for women’s health. Religious employers, and we’re talking churches and so forth, can avoid the problem of providing these contraceptives by filling out a form and ordering a third party to offer the insurance. That way, the employees get the same benefits as any other woman, but the religious group can avoid paying for the insurance directly.

 

So, we’re looking at two main issues: should a for-profit corporation be treated like a church group simply because the owners are religious? After all, the employees are presumably just regular people, right? Second, you’re probably thinking that we’re also talking about the First Amendment guarantees of freedom of religious expression. To what extent can the government stand between you and your experience of faith?

 

But here’s the thing. Justice Alito ignored the First Amendment. There’s a 1993federal law that says the government cannot trespass on expressions of faith absent a compelling federal interest. If they so do, they also have to prove that there was no less intrusive manner of serving that interest. This law is the much ballyhooed federal Religious Freedom Restoration Act, a law that was actually passed to clarify, and in some ways strengthen, the First Amendment’s guarantee that the government will not favor or intervene in religious expression. In other words, the federal law serves the First Amendment, but it does not replace it. And the Supreme Court carries vast First Amendment case law that should, in theory, govern this case.

 

Astonishingly, because we’re dealing with Justice Outside the Box Alito, the Hobby Lobby complaint was analyzed under the federal statute, not under Constitutional law. Hey! We don’t have to be lawyers to know that federal statutes, all statutes, must measure up to the Constitution, right? That’s the whole damned purpose of the Supreme Court! But this was not done! Instead, Alito looked at the language of the RFRA (and its progeny) and determined, first that this law somehow stands on its own outside the ambit of the First Amendment. (WTF?). Then, he ruled that a private for-profit company could have a religious conviction for purposes of the law, and third, he decided that the government had not selected the least intrusive method for serving its interest in women’s health.

 

I’m not getting into the origins of the RFRA, but just trust me. This law was passed in order to codify aspects of First Amendment law, not to trump established case law. The RFRA should be interpreted in the context of the Constitution, not on its own. To do otherwise is typical Alito, and his indifference to established constitutional law is unforgivable in a justice.

 

Second, is there a legal difference between a corporation, even a corporation run by Christians, and a church organization? Hello! Do we even have to ask that question? Yet Alito had no problem conflating a for-profit group with a religious organization. Why, he wondered blithely, should participation in the free market negate the owners’ faith-based rights? (Earth to Alito: because you can’t have it both ways! You can’t get the benefits of separating your personal finances from your corporation and then turn around and invoke your personal beliefs to evade federal law.) But following his skewed thinking, why shouldn’t the majority owner of a traded company be allowed to dictate religious terms? Couldn’t we see major corporations sidestepping all sorts of antidiscrimination laws with a wave of the religion card? If it’s up to Alito, no problem!

 

Finally, he turned to the question of whether the government had used the least intrusive means of enforcing its insurance policy. Hey, Alito said. You’ve got all these religious groups who can fill out a form and get someone else to provide contraceptive insurance. Surely this same accommodation can be made for Hobby Lobby and other “closely held” private companies who hold these “sincere” beliefs.

 

Now, bear with me. Forget the fact that women who work for seemingly secular companies should not be obliged to jump through strange insurance hoops in order to get standard health care. But there’s also a question of whether this “easy alternative” will even be available. Why? Because a bunch of the aforementioned religious groups have decided that even filling out the damn form is a violation of their freedom of religion, or sincerely held beliefs or whatever bull shit. And just a few days after Hobby Lobby, the High Court issued an injunction which allows a Christian college, Wheaton, to skip the form and just write a letter to the government.

 

Personally, I think this Wheaton decision, which got a ton of media attention for a range of legal reasons, is a red herring. Because it’s more of the same. The insurance. The form. These people won’t stop. Anything and everything will be a violation of their beliefs until someone, or some court, steps up and points out that one of our most fundamental principles as a nation is that freedom of religion does not extend to imposing your religious beliefs on other Americans.

--

 

Will Hobby Lobby Hurt Us?

 

Even after all this, I still can’t predict how this opinion will play out. On the surface, we can imagine nightmare scenarios. And even though Alito pretends to operate outside the First Amendment, we know this opinion will have an impact on constitutional law. Could a company fire a gay person or ignore a legal marriage based on Hobby Lobby? Maybe, maybe not.

 

On the other hand, is it too weird? Has Alito gone too far? Will future courts be able to sidestep Hobby Lobby, noting that it was confined to a niche aspect of health care or that it ignored First Amendment precedent? Will it just create a murky area of law, a swamp to be drained by a future High Court ruling? Will Justice Alito’s comment that the opinion doesn’t provide a loophole for avoiding laws against racial discrimination extend to us? Note that our champion Justice Kennedy wrote his own concurring opinion, emphasizing the limited nature of the ruling.

 

And what of the numerous federal court rulings that have not only recognized our right to marry, but have done so with stirring rhetoric, pulling gay men and lesbians into a full constitutional embrace; equal protection, the fundamental right to marry, even the status of a protected minority? Can this asinine opinion undermine all that progress? Would the same federal courts that have heralded our relationships and our place in American society turn around and give the thumbs up to some right wing company that wants to dismiss our relationships based on “sincerely held religious beliefs?” I hope not. But that said, you just never know how High Court opinions will be greeted once they hit the ground running in the federal judiciary.

 

Finally, as I wind up this analysis, please note that Lambda Legal has joined the National Center for Lesbian Rights, the American Civil Liberties Union, the Gay and Lesbian Advocates and Defenders, and the Transgender Law Center, in opposing the Employment Nondiscrimination Act. Among ENDA’s many flaws, its religious loopholes would open the door for sexual orientation to stand alone as an exception to antidiscrimination laws.

 

We might not know exactly how the Hobby Lobby opinion will be interpreted when it comes to gay rights, but we certainly know (and I’m speaking for myself not Lambda) that LGBT Americans will be far better protected under the auspices of Title VII of the Civil Rights Act, with its half century of case law, than under the fragile shelter of a stand-alone mess of a bill that was proposed as a compromise in the 1990s.

 

Let’s put sexual orientation and gender alongside race, sex, national origin and religion in our most powerful federal law against workplace discrimination. If we wind up out in the cold with only ENDA to protect us, who knows whether or not some court will use Hobby Lobby as a pass for gay bias. If we are added to Title VII however, the Hobby Lobby precedent, with its admonition that it could not support “racial” discrimination, arguably could not be used against us.

--

 

arostow@aol.com