One lawsuit or election can roll back many of the gains
Coming off another high achievement year, the LGBT community can relax and take it easy for a while now, right?
The federal Defense of Marriage Act is gone. Same-sex couples can obtain marriage licenses and recognition in all 50 states. LGBT people can serve in the military. LGBT people working for the federal government can file employment discrimination claims under Title VII of the Civil Rights Act of 1964. Those working for companies that contract with the federal government now have protection under a presidential executive order. Those visiting a same-sex spouse in the hospital are also protected by a presidential executive order. And, perhaps most importantly, the current presidential administration has made clear, through actions and words, that it will stand up for the civil rights of LGBT people.
This is the LGBT Golden Age, right?
That may depend on whether LGBT people seek 24 karat gold equality or something less pure, and the length of that Golden Age, however pure it might be, may be short-lived, depending on how certain lawsuits and presidential campaigns turn out this year.
In terms of the quality of LGBT equality, under federal and state laws, Americans are protected from private job discrimination based on race, sex, religion, and national origin. But there is no federal law prohibiting private job discrimination based on sexual orientation or gender identity. And of the 50 state laws prohibiting discrimination in private employment, only 22 prohibit sexual orientation discrimination and only 19 prohibit discrimination based on sexual orientation and gender identity.
This is why so many legal activists were quick to note, following the U.S. Supreme Court’s decision (Obergefell v. Hughes) striking down state bans on marriage for same-sex couples, that LGBT people “can be married on Saturday and fired on Monday.”
There is also a looming threat to LGBT equality under “Religious Freedom Restoration” laws.
Twenty-one states already have such laws, giving persons and businesses a path to circumvent non-discrimination laws by claiming their religious beliefs require discriminating against LGBT people. And, according to the National Conference of State Legislatures, 12 more states will consider adopting such legislation this year.
Opponents of equal rights for LGBT people have been trying this religious exemption argument for years, but following last June’s marriage decision, those efforts increased. Florists, bakers, wedding vendors, and others have tried to use such laws to avoid doing business with same-sex couples getting married. And there’s concern others might use them to deny LGBT people jobs, housing, and service in restaurants and hotels.
The U.S. Supreme Court has yet to take a case to test the constitutionality of such laws in the LGBT context. It refused to hear a wedding photographer’s appeal in 2014, but more lawsuits are coming through the system and the argument is evolving to include the First Amendment right to freedom of expression. Just last month (December 16), a Massachusetts judge ruled that –despite an exemption for religious institutions to the state’s human rights law-- a Catholic school did not have constitutional protection to violate a state law when it rescinded a job offer to a food services employee “because he was a spouse in a same-sex marriage.”
The school had argued it had a First Amendment freedom of expression right to deny employment to a man married to a man. But the judge agreed with Gay & Lesbian Advocates & Defenders, who sued the school on behalf of the gay employee. GLAD expects the school to appeal. And because the case involves a federal constitutional issue, it could end up in front of the U.S. Supreme Court.
In another case, the Lexington-Fayette Urban Human Rights Commission is suing a commercial printing company for using that same freedom of expression argument to refuse to print tee shirts for a gay pride event.
“If that argument were sufficient to allow [the company] Hands On Originals—a for-profit business that markets its services to the public at large—to violate the antidiscrimination laws, a host of other businesses would be able to engage in illegal discrimination as well,” argued a December 28 friend-of-the-court brief from Americans United for Separation of Church and State.
Several county clerks –most notoriously Kim Davis in Kentucky—have tried to cite their personal religious beliefs as justification for refusing to enforce the Obergefell ruling’s requirement that same-sex couples be treated as other couples in obtaining marriage licenses. The ACLU is representing several same-sex couples in a lawsuit against Davis that is now pending before the Sixth Circuit U.S. Court of Appeals. Oral argument on that appeal could come as early as this month.
Jon Davidson, national legal director for Lambda Legal, noted that some states are trying to avoid recognizing marriages of same-sex couples who married before the Supreme Court decision in Obergefell. One of Lambda’s lawsuits, filed last month in a federal court, challenges North Carolina’s refusal to issue corrected birth certificates for two children born to a lesbian couple who married in Canada in 2003.
The National Center for Lesbian Rights has one of the more important post-Obergefell cases, pending now at the U.S. Supreme Court level. It is challenging a decision by the Alabama Supreme Court to refuse to recognize in Alabama a lesbian’s adoption of children she raised from birth with the children’s biological mother.
The adoption took place in Georgia in 2007 and, since the women’s relationship broke up, the biological mother has sought to block the other mother from visitation. NCLR legal director Shannon Minter says NCLR hopes the Supreme Court will agree to review the case. As the group’s brief notes, “all families who obtained adoption judgments in [other] states may now have a parent whom Alabama courts may hold to be a legal stranger to her children in Alabama.” On December 14, the U.S. Supreme Court granted a stay of the Alabama Supreme Court decision until the full court can decide whether to take the appeal this year.
And some efforts to thwart full equality for LGBT people are using a combination of legal arguments and political tactics.
“Plan A was stopping LGBT equality. Plan B is using [religious] exemptions,” said ACLU LGBT Project Director James Esseks in a recent telephone conference with reporters. “Plan C” appears to tie scare tactics in political messaging to misrepresent the impact of non-discrimination laws.
In the upcoming state legislative sessions, said Esseks, many predict a “tremendous wave of anti-trans bills” prompted in large part by the vote in Houston in November. In that vote, citizens repealed a new law prohibiting discrimination based on a wide variety of characteristics. Their votes seemed largely persuaded by a campaign from opponents who claimed the prohibition of gender identity discrimination would lead to sexual predators attacking young girls and women in public restrooms.
The anti-trans trend is longstanding. When the federal Americans with Disabilities Act (ADA) was passed in 1990, it explicitly excluded from protection “transsexualism…[and] gender identity disorders not resulting from physical impairments.” Last month, a case GLAD is involved in challenged that exclusion in a hearing before a federal judge in Pennsylvania, said GLAD Executive Director Janson Wu. The U.S. Department of Justice also submitted a brief that argued that gender dysphoria should not be excluded from ADA’s definition of disability, and a decision is expected this year.
There are other political influences on legal rights for LGBT people this year: One is a serious effort to denigrate the authority of the judicial branch to declare which laws are constitutional and which are not. Nearly all of the Republican presidential hopefuls have loudly proclaimed they think the Supreme Court exceeded its authority by declaring state bans on marriage for same-sex couples to be unconstitutional. U.S. Senator Ted Cruz, who is currently leading the large field of candidates in Iowa, called the decision in Obergefell v. Hodges “lawless” and likened the five justices who supported it to “jackboots” in Nazi Germany.
Obviously, there will be much at stake legally for LGBT people in who is elected president in November.
Democratic frontrunner Hillary Clinton issued a FactSheet on December 17, detailing how, as president, she would attempt to “fight for full federal equality for LGBT Americans.” Among other things, she says she would “work with Congress to pass” a federal law prohibiting discrimination based on gender identity and sexual orientation in “employment, housing, schools, access to credit, public education, jury service, and public accommodations.” And she says she would also support efforts by the courts to interpret existing federal law prohibitions on sex discrimination to include sexual orientation and gender identity.
Donald Trump, who is leading the Republican field in New Hampshire and in nationally based polling of Republican voters, is “one of the best, if not the best, pro-gay Republican candidates to ever run for the presidency,” according to the Gregory Angelo, head of the national gay Republican group, Log Cabin Republicans. Trump, he added, opposes an amendment to the federal constitution that would ban marriage for same-sex couples, and he supports amending the Civil Rights Act to include a prohibition against sexual orientation discrimination. But Trump has also said that, while he acknowledges the Supreme Court decision in Obergefell as the law of the land, he does support “gay marriage.” And he hasn’t been pinned down on other issues relating to the LGBT community specifically.
Cruz, the Iowa frontrunner in the Republican presidential field, said in his first 100 days he would fight for the “First Amendment Defense Act,” which seeks to circumvent laws prohibiting discrimination against same-sex couples by urging that such discrimination is a product of a person’s free exercise of religion. It also seeks to prohibit the federal government from taking any adverse action against a person who “acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman.”
Cruz is one of two Republicans still in the race (the other is Ben Carson) who signed the National Organization for Marriage’s pledge, promising to “work to overturn” the right of same-sex couples to marry and to change all “regulatory, administrative and executive actions” to “be consistent with the proper understanding of marriage as the union of one man and one woman.”
The outcome of that presidential race is far from predictable at this point. But one thing does seem clear: Whatever “golden” moment the LGBT community might be enjoying now, the line ups in the courtroom and political arena this year will almost certainly have a significant impact on how lasting and solid that moment will be.