News for the Week Ended March 30, 2011
BY ANN ROSTOW
Yet Another Doomed Version of ENDA Hits Congress
My email is now full of breathless headlines from all the various GLBT organizations and pundits, announcing that the Employment Nondiscrimination Act has been introduced in the House. Loyal readers are familiar with my opinion of this dubious effort, so I will forego much of my usual rant.
But not all of it.
We have introduced this stand-alone gay workplace discrimination bill to no avail in every Congress save one since 1994.
Prior to that, as far back as 1974, we introduced a bill that would have added “sexual orientation” to the provisions of Title VII of the Civil Rights Act of 1964. Title VII covers workplace discrimination on the basis of race, sex, national origin and religion, and it is reinforced with the steel of almost half a century of case-law. In short, Title VII offers the only real protection against gay bias on the job, period.
If we had kept working on a revision to Title VII, we might be close to victory by now. Instead, we decided that was too difficult, and contrived a separate bill, ENDA, riddled with loopholes to satisfy homophobic lawmakers. Small businesses are exempt from ENDA, as are religious employers. Along with its many inadequacies, ENDA does not provide an avenue for collecting civil damages. Worse, although many modern courts have found a way to rule on gay bias using Title VII, that strategy would be foreclosed should Congress create a separate law that specifically covers GLBT workers.
Perhaps fighting for a separate gay bill made sense in 1994. But nearly two decades later, it makes no sense. Do any of you California readers remember when gay workplace bias was covered under a special provision of the Labor Code rather than included in California’s main human rights act? Hint: it didn’t work and eventually sexual orientation was added to the law that protects every other Californian.
Oh, you say. But it would still be easier to pass ENDA as a first step and then go back and revise Title VII!
I have news for you. ENDA’s not going to pass this Congress. Even Barney Frank called the bill “an organizing tool” that is not likely to reach the House floor. And even if we did manage to pass ENDA after, let’s say, 25 or 30 years of trying, does anyone really think we could pass a stronger gay rights bill on its heels?
I for one am tired, year after year, of getting letters and emails asking for cash to “help pass ENDA.” This bill is a counterproductive legislative artifact from an earlier age, and if all we need an “organizing tool,” why not introduce a revision to Title VII? It would have the same chance of passage as ENDA.
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Ninth Circuit Citation A Mystery (To Me)
Moving on, I tried to check up on the Alaskan case that was cited in the one-paragraph Prop 8 announcement by the U.S. Court of Appeals for the Ninth Circuit last week. The three-judge panel informed us that they were not going to lift the stay on Judge Vaughn Walker’s decision last August to strike Prop 8 and re-legalize same-sex marriage in California.
Since their only explanation was a reference to Southeast Alaska Conservation Council v U.S. Corps of Army Engineers, I thought I’d look up the details. But all I found was a (kind of astonishing) lawsuit involving a gold mine that was planning to dump all its waste into a large lake. The gold mine admitted that the plan would raise the bottom of the lake by 50 feet, triple its surface area, and kill off virtually all aquatic life.
The mine received permission from the U.S. Corps of Army Engineers to go ahead with its dastardly scheme, deftly relying on an ambiguity in the Clean Water Act. A lower court thought that destroying the lake was just fine, but the Ninth Circuit disagreed in a 2007 opinion. I tried my best to find the “principle of vacatur” that applied to the Prop 8 case, but I failed, possibly due my lack of legal training (an educational deficit that normally doesn’t stop me from pontificating on all areas of the law). If any attorneys out there can help me, I’d be grateful. I’m guessing that the principle was articulated in a different opinion, but I couldn’t find it.
By the way, you’ll be interested to know that the U.S. Supreme Court overturned the Ninth Circuit in 2009 in a 6-3 decision, so I’m guessing that by now our pretty little lake is officially an industrial waste site. And here’s a coincidence! Ted Olsen argued on behalf of the gold mine and the state of Alaska.
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Gay Spouses in Limbo
Last week, we covered the bi-national lesbian couple from New York, who were given a reprieve from deportation while they pursue a Green Card in court. Even the government lawyer in the immigration hearing agreed that drastic action should be postponed while the women challenged the law that ostensibly keeps them apart—the Defense of Marriage Act.
Given that the Executive Branch officially views the Defense of Marriage Act as unconstitutional, it was not hard to infer that the U.S. will slow or cease deporting gay and lesbian spouses until the court verdict is in on the constitutional status of DOMA. This inference was bolstered by a statement a few days ago from the US Citizenship and Immigration Services, saying that indeed, deportations would be suspended for foreign gay spouses pending a legal review by Homeland Security.
Cue: Theme from Final Jeopardy. Time’s up! The legal review is over and the government confirmed that it will continue deportations as usual. You recall that the Obama administration made clear that they would still enforce the Defense of Marriage Act despite any constitutional reservations, and I suppose this sad decision reflects that pledge. I’m not sure whether this will have an impact on the girls from New York, but we all hope not.
Of all the hazardous side effects of the Defense of Marriage Act, I think the deportation of bi-national couples has to be the worst, don’t you?
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Gandhi Was What?
I kind of lost my train of thought after a ramble through cyberspace. I clicked on so many things that I completely forgot what I was originally seeking, and I can’t remember it even now. Ah, technology.
Speaking of technology, my wife was reading the paper the other day and she had her hand on her computer mouse and found herself trying to scroll down her article. And, speak of the devil, she just came home three hours early from work. Poor thing doesn’t feel well, and here I am stuck writing rather than tending to her. I’ll send the housemaid in to see if she needs anything.
Oh yes. I was going to find out why people are saying Gandhi was gay, or had a gay fling, or wanted to have a gay fling. It was something like that. I’m no longer interested, however. Instead I am fuming over the incessant talk about how President Obama needs to “clarify” our mission in Libya, and the media’s pointless insistence on knowing exactly what will happen if we end up in a “stalemate.”
Look. The man could not have been more clear. Clinton has been clear. The mission is clear! Enforce a no-fly zone through NATO. Prevent civilian deaths and encourage Gadhafi’s departure through all means short of sending in US ground forces.
But but but sputter sputter sputter! I thought he said he wanted to get rid of Gadhafi! And now he doesn’t? It’s so confusing! What if Gadhafi doesn’t leave? What specifically will we do in that hypothetical situation? Um, what if the Canadian government started attacking civilians? Would America intervene?
Then there’s the ongoing hysteria over what would happen if, say, the nuclear plant in New York had a massive total meltdown. Could we evacuate Manhattan?
I seriously watched a segment on that very possibility. And the answer? No. In fact we can’t evacuate Manhattan, and you know what? We won’t have to because the nuclear reactor on Indian Point isn’t going to have a meltdown.
There’s no radiation poisoning in LA, no great white sharks in your bathtub and while we’re at it, the sun isn’t going to explode next Tuesday. These people are driving me crazy!
I know what you’re thinking. No one is forcing me to sit around reading simplistic articles or watching cable news. And yet, I continue to torture myself.
While surfing, I did learn some of the many alternate spellings of “Gadhafi.” In addition to the AP spelling used here, the strange looking tyrant is also spelled “Gaddafi,” “Qaddafi,” “Al-Qadhafi” “El-Qaddafi” and “Kadafi.” His first name has numerous variations as well, but I won’t indulge myself further on this topic.
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Sodomy Bans Alive and Well
What else is new, you ask? There are several state legislatures considering whether or not to repeal their anti-sodomy laws. Obviously, such laws are unenforceable in the wake of Lawrence v Texas, but some of them are still on the books, including the books of Kansas, Montana, and here in Texas. It looks like all three of these states are going to keep their sodomy laws intact, presumably just to remind their gay and lesbian citizens that they still consider us damnable perverts.
Hey. Remember it took Alabama until the 2000 election to repeal its symbolic ban on interracial marriage. At this rate, we’ll have those sodomy laws gone by 2036.
In other state news, the Colorado senate passed a civil union bill that now goes to the house. And the Indiana senate passed an amendment that bans both same-sex marriage and civil unions. The amendment has to pass in the next session of the legislature, and after that, it would go to a popular vote in 2014 at the earliest. I will withhold my pain and anguish until the Hoosier voters condemn me three years hence.
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Another Law That Won’t Die
Perhaps some of you are wondering how our brave gay men and women in uniform are doing now that Don’t Ask has been repealed.
I suppose they’re all fine, but they’re still in the closet. The repeal of Don’t Ask won’t take effect until two months after President Obama and Secretary Gates sign off on some statement that the change in policy will not affect military readiness. Or something like that.
Gates, meanwhile, won’t sign the statement until the military completes some kind of training on how to implement the new rules. I’m not sure why that would be so complicated. I mean, how hard is it not to discharge someone? At any rate, I just read that a subgroup of the House Armed Services Committee has decided to hold hearings next week in order to provide Congressional oversight for these implementation procedures. If that makes no sense to you, join the club. It appears to be a way for House Republicans to stall the eventual end of the military ban.
And do you remember the federal lawsuit back in October, when Judge Virginia Phillips struck Don’t Ask as unconstitutional? Her ruling was stayed pending appeal, and the suit rose to the U.S. Court of Appeals for the Ninth Circuit. There, the Obama administration asked the court to basically let the appeal slide while they went through the process of repealing the statute.
In a reply filed on Monday, the Log Cabin Republicans (who brought the suit) called the government’s request “absurd” and asked the court to strike Don’t Ask at once and let the chips fall where they may.
The bottom line is that Don’t Ask Don’t Tell is still the law of the land, and will remain so throughout seemingly endless court filings, training programs, subcommittee hearings and certification procedures. I haven’t heard of anyone actually getting kicked out of the service recently, but it’s still irritating to see the military ban sticking around like old gum.
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arostow@aol.com
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