Justice Scalia's Ironic Comments About Democracy

Justice Antonin Scalia had some interesting things to say at a speech yesterday to Georgetown University law students.  The Washington Post reports on Scalia’s response to a question about minority rights:

But a question about whether courts have a responsibility to protect minorities that cannot win rights through the democratic process — the issue that animated the court’s landmark decision this year on same-sex marriage — brought a caustic response.

“You either believe in a democracy or you don’t,” Scalia said. “You talk about minorities — what minorities deserve protection?”

Religious minorities are protected by the First Amendment, Scalia said, and so are political minorities. But beyond that, he asked rhetorically, what empowers Supreme Court justices to expand the list.

“It’s up to me to decide deserving minorities?” Scalia asked. “What about pederasts? What about child abusers? So should I on the Supreme Court [say] this is a deserving minority. Nobody loves them.”

“No, if you believe in democracy, you should put it to the people,” he said.

No, Justice Scalia, if you believe in democracy governed by the Bill of Rights, people have rights that cannot be violated by majorities.  The majesty of the Equal Protection Clause is that it was intentionally written broadly, rather than being limited to certain people.  And it doesn’t have a clause saying “except for gay people.”

In addition, given Scalia’s caustic dissents in cases recognizing the constitutional equality and basic humanity of gay people, it is hardly a surprise that he answered a question implicating LGBT equality by dragging in pederasts and child abusers.  From a legal perspective, can he really not see any difference between protecting innocent but unpopular people who aren’t harming anyone, and policies designed to prevent adults from committing acts of violence against unwilling children?

Legal comparisons aside, why bring up child molesters at all?  For far too long, far right extremists have long peddled the pernicious lie that gay people are inherently a threat to children.  Why did Scalia’s mind go there?  Surely there are other categories of people he could have mentioned to make the same point.

Scalia’s comment about believing in a democracy also has to be taken in context: He voted with the 5-4 majorities in Citizens United (opening up our elections to unlimited corporate and special-interest money) and Shelby County (gutting the heart of the Voting Rights Act and empowering those who seek to win elections by disenfranchising Americans who might vote against them).  And, of course, he was with the 5-4 majority in the ultimate judicial middle finger to democracy, Bush v. Gore.

At the heart of our democracy is the right to vote in free and fair elections.  That means elections without barriers designed to keep the “wrong” people from voting, and elections where the voices of ordinary people are not drowned out by a tiny sliver of phenomenally wealthy and powerful interests.  That is what a healthy democracy looks like, and it makes Scalia’s comments quite ironic.

PFAW Foundation

EEOC Says Anti-Gay Discrimination Is Illegal Sex Discrimination

The Equal Employment Opportunity Commission, the federal agency tasked with enforcing federal laws prohibiting job discrimination, issued an order yesterday with substantial impact on millions of people throughout the country.  In a case involving allegations of discrimination at the Federal Aviation Administration, the EEOC has concluded that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

In other words, the agency that enforces Title VII says that it’s illegal to discriminate against someone because they are gay, lesbian, or bisexual.  (It had already made a similar finding about gender identity.)

This makes perfect sense.  Federal courts, including the Supreme Court, have long held that employers may not rely upon sex-based considerations or take gender into account when making job-related decisions.  As the EEOC now notes:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. …

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. For example,  assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk.  The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.

The agency also notes that just as the law prohibits employers from discriminating against an employee because of the race of that person’s spouse, the same applies to the spouse’s sex.

This is not the first time that the EEOC has expanded the frontiers of justice and equality through an obvious but overdue interpretation of Title VII, which was passed in 1964.  For instance, today it’s common knowledge that sexual harassment in the workplace violates Title VII.  Yet, as anyone who lived through the 1960s (or watched Mad Men) can tell you, sexual harassment was quite common, Title VII notwithstanding.  It was not until 1980 that the EEOC issued guidelines prohibiting sexual harassment as a form of sex discrimination.  And it took until 1986 before the Supreme Court made that interpretation the law of the land in a case called Meritor Savings Bank, FSB v. Vinson.

Some courts have already addressed this issue and reached the opposite conclusion of the EEOC.  Dale Carpenter notes in the Volokh Conspiracy:

The EEOC’s view on sexual orientation, however, runs counter to the rulings of several circuit courts. These courts have reasoned that “sexual orientation” is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate anti-gay discrimination when it enacted Title VII, and that Congress has repeatedly refused to add “sexual orientation” to employment protections.

The EEOC calls these earlier circuit court decisions “dated,” and some of them have been undermined by subsequent precedents in the same circuits recognizing that gender stereotyping, including gender stereotypes evidenced by anti-gay comments, is sex discrimination.

This week’s action from the EEOC certainly isn’t the end of the story.  Usually, if an agency interprets the law it’s charged with implementing, courts are required to give substantial deference to its interpretation, as long as it’s a reasonable way of reading the law.  But courts are not required to give that same level of deference to the EEOC’s interpretation of Title VII.  So while its recognition that sexual orientation discrimination is a manifestation of sex discrimination is a step forward, it could be undone by the courts (as well as by EEOC commissioners nominated by a future administration hostile to LGBT equality).  Indeed, we may see this issue ultimately decided by the Supreme Court.

PFAW Foundation

Why The Right's Response To Marriage Equality Is Anything But Principled

This post by PFAW and PFAW Foundation Senior Legislative Counsel Paul Gordon was originally published in the Huffington Post. 

Ted Cruz, Bobby Jindal, and other conservative leaders have recently lashed out against the Supreme Court's decision on marriage equality by proclaiming that local clerks who don't personally agree with marriage equality should not be required to issue marriage licenses or perform weddings for same-sex couples - even though it's their job to provide that service to the public.

Their logic is fundamentally flawed. Civil marriage is a civil function, not a religious one. Government employees allowing someone to access their legal rights are not doing anything religious, nor are they condoning the actions being licensed any more than with any other type of license.

That's why when government employees in our country have had religious objections to divorce and remarriage, they have still had to do their jobs. And when government employees have had religious objections to interracial marriages, they have still had to do their jobs. So, too, have government officials with other religious objections to whether or how certain couples get married.

But when the particular religious belief in question is opposition to lesbians and gays, that's apparently a different matter altogether. Now, suddenly, we're told that government employees need to have their religious liberty "protected."

A principle of religious liberty that is invoked only in the context of one particular religious belief is no principle at all. It is a pretext.

The far-right movement that is coalescing around these "protections" allowing civil servants to impose their religious beliefs on others and deny them service does not have clean hands in this regard. While they proclaim loudly that they just want to "live and let live," the policies they have pursued vigorously for decades have aggressively sought to prevent LGBT people from having basic human rights. The Right's new clamor for "protections" is just another form of homophobia.

If the religious right simply wanted to "live and let live," they would not have spent these past decades seeking to impose their religious beliefs about homosexuality on others both through custom and through force of law. They would not have boycotted television networks for airing shows portraying LGBT people as ordinary people. Nor would they have screamed bloody murder when popular celebrities came out of the closet. They would not have fought to prevent us from raising children. They would not have battled to ensure that surviving members of couples be denied Social Security survivor benefits. They would not have opposed letting us serve our country in the intelligence services or in the military. They would not have put so much energy into convincing Americans that we are sexual predators going after their children. They would not have tried to bar us from teaching in public schools. They would not have threatened us with criminal prosecution just for our private, consensual sexual conduct.

Whether it's religious refusals specific to marriage, more general Religious Freedom Restoration Acts in a post-Hobby Lobby world, or Sen. Mike Lee's misleadingly named "First Amendment Defense Act," the Right is yet again attacking LGBT people. With a growing number of Americans - and now the Supreme Court - affirming that the right to marry is a right guaranteed to all regardless of sexual orientation, some on the Right have come to understand that their best tactic to fight marriage equality is to couch their homophobic goals with the language of "religious liberty" instead of explicitly speaking out against LGBT rights. But it's up to all of us to make sure that they do not succeed in these efforts to portray themselves as virtuous defenders of religious liberty, because in reality they're just waging another war against LGBT people.


A Historic Day for Liberty, Equality, and America


The Supreme Court has ruled that same-sex couples have a constitutional right to marry.  This day is profoundly American and a testament to our Constitution: Individuals who faced discrimination at the hands of the government turned to the courts to vindicate their rights.  And the Supreme Court did that today, in a ruling that gives justice to the plaintiffs and, in the process, makes real the promises of liberty and equality that are written in our Constitution.

When the American Way works as intended, it is a beautiful thing to see.

As Justice Kennedy describes in his majority opinion in Obergefell v. Hodges, gays and lesbians have for most of American history been scorned, stigmatized, imprisoned, labelled as mentally ill … you name it.  Given the horrific consequences for being openly gay, it is no wonder that for so long, as Kennedy writes, “a truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”

That is profoundly sad, and it is profoundly unjust.

Fortunately, society has changed over the past few decades.  The Court majority writes:

In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance.

While this is a recent development for lesbian, gay, and bisexual Americans, it is quite a familiar process for America itself.  Indeed, it is the story of America.

This was stated eloquently several years ago when Maryland was debating marriage equality.  The marriage bill’s sponsor, Maryland state senator Rich Madaleno, testified in support of the legislation:

Our state and our nation were founded on principles of fairness and equality. These principles are timeless; unfortunately, their application has not been. Yet every generation of Americans has held out their hand to some who had been left out of the promise of equality – held out their hand and brought them fully into our civil society, saying, “You are not the other. You are us.”

After today’s Supreme Court decision, my place in society as a gay American is profoundly changed as a matter of constitutional law.  I am no longer the other.  I am us.

Today, the system worked.

PFAW Foundation

North Carolina Pastor Speaks Out About Discriminatory 'Religious Freedom' Marriage Law

In response to a bill authorizing public officials to refuse to perform same-sex marriages becoming law in North Carolina this morning, Dr. Terence K. Leathers – a pastor at Mt. Vernon Christian Church in Clayton, North Carolina and a member of People For the American Way's African American Ministers In Action – released the following statement:

“Shame on our legislature for making this harmful and unnecessary bill become law. As a pastor, I believe this is not only a blow for the dignity of all North Carolinians but also a blow for true religious liberty.

“Governor McCrory did the right thing when he vetoed this bill, and the fact that our legislature overrode it shows just how far they will go in misusing the principle of religious liberty in order to discriminate. This is a sad day for our state.”

Last week, Dr. Leathers published an op-ed in The Huffington Post calling on the legislature not to misuse religious freedom to license public officials to discriminate.


PFAW Telebriefing Unpacks Legal Issues and Real-World Implications of Marriage Cases

As the Supreme Court prepares for arguments about the right to marry, PFAW Foundation Senior Fellow Jamie Raskin says our country may be “on the verge of a historic breakthrough.”

On Thursday, PFAW hosted a telebriefing for members and supporters on this historic moment in anticipation of oral arguments in the Supreme Court marriage cases (Obergefell v. Hodges) next week. PFAW Executive Vice President Marge Baker moderated a conversation among affiliate PFAW Foundation Senior Fellows Jamie Raskin and Elliot Mincberg as well as People For supporters who called in to join the discussion.

In the telebriefing, Raskin and Mincberg unpacked some of the questions before the court — not only whether states can prohibit same-sex couples from marrying or refuse to recognize marriages from other states — but also the implications of the various types of reasoning the justices may use to reach their decision.

They also reflected on the remarkable social transformation our country has seen on the rights of LGBT people. Raskin remembered that the 1986 Bowers v. Hardwick decision, which upheld the criminalization of “sodomy,” came out while he was in law school. With the Court’s steady march away from that kind of legal reasoning, he said, “there’s no going back from here.”

Mincberg pointed out that, unfortunately, the backlash has started before the Supreme Court even decides the cases. With “right to discriminate” legislation pending in more than a dozen states and a handful considering “marriage refusal” bills, it’s clear that the far Right is already forging ahead with a nationwide push to undermine the expanding rights of LGBT Americans.

Call participants shared some great questions and opinions, including a retired pediatric doctor who asked why the principles accepted by the medical community to take care of your patients rather than question or judge them have not been accepted by the political community as well.

Listen to the full telebriefing here:


The Courts Have to Matter to LGBTQ Americans

The following is a guest post by Erik Lampmann, a 2011 Young People For (YP4) Fellow. It is cross-posted on the Alliance for Justice blog and the YP4 blog.

Federal courts routinely hand down judgments that affect everyday Americans at an immediate, painful, and personal level – for good or ill.

Consider the case of Seamus Johnston, a transgender student expelled by the University of Pittsburgh at Johnstown (UPJ) for his use of male restrooms and gym facilities on campus. When he sought redress for his experiences at the hands of UPJ, U.S. District Judge Kim Gibson, a George W. Bush appointee, ruled he had no room to claim discrimination since he was being treated in accordance with his sex as assigned at birth and had not had sex reassignment surgery.

In some ways, Johnson was warranted in thinking he was free to live openly as a transgender man since UPJ offers gender identity and expression protections under its student nondiscrimination statement. Indeed, Johnson had lived openly and without significant difficulty as a man since 2009 — even having taken advantage of men-only exercise courses. Only in 2011 was Johnson first confronted for using a men’s locker room. After issuing Johnson citations, barring him from certain facilities, and eventually arresting him, the university expelled him for his attempt to use the bathroom in which he felt most at peace and which he believed he was permitted to use by university policy. In his appeal for justice, Johnson didn’t ask for much — simply that a university that purports to protect students based on “gender identity and expression” allow him a modicum of relief as a transgender person rather than criminalizing his attempts to live authentically.

Essentially, Judge Gibson acknowledged Johnson’s self-identification as a transgender man, but she didn’t think it really mattered in the context of the Equal Protection Clause or Title IX.  Flatly ignoring guidance from the Department of Education encouraging institutions of higher education to recognize transgender and gender non-conforming students’ right to protections under Title IX, Judge Gibson left Johnston, and other transgender students, without protection from sex discrimination. She wrote:

While Plaintiff might identify his gender as male, his birth sex is female … It is this fact … that is fatal to Plaintiff’s sex discrimination claim. Regardless of how gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender male, his sex is female.

In sum, this decision reflects a sobering reality for LGBTQ people, particularly transgender and gender non-conforming individuals: The government — more specifically, a judge — holds the power to determine if the law protects how you define yourself.

This example dramatizes just one way that our courts fail to live up to the promise of the motto “equal justice under law” by protecting the vulnerable among us from exclusion and discrimination. I’ll admit that several years ago the result in this case might have led me to give up on the courts as an avenue for change.

Recent decisions from the Supreme Court and other federal courts have prompted some progressives to view the courts as a once-relevant institution home only to disconnected jurists. When we as progressives write off the courts and treat them as spaces where our communities were never meant to triumph, we concede the power to speak from our lived experience as those affected by the law and to shift the balance of power within the judiciary.

In reality, the legal knowledge of our communities paired with our deeply personal understanding of how the courts’ decisions impact real people gives us a tremendous power to affect the composition of the courts and to create legal precedents that respect rather than ignore our communities’ needs.

Seamus Johnston’s experiences with the justice system are then instructive for progressives building long-term judicial strategies. His loss in the Western District of Pennsylvania is but one battle in a much longer struggle for social justice.

The courts have to matter for LGBTQ Americans and so many others who find themselves on the losing end of cases like Johnston’s. They have to matter because we cannot afford to write off institutions, elected officials, or organizations as permanent friends or enemies. Rather, if we truly believe another world is possible, we have to build it brick by brick, precedent by precedent, judge by judge.

PFAW Foundation

Arkansas Governor Does Only a Partial Retreat on RFRA

Yesterday, the Arkansas legislature approved a so-called "Religious Freedom Restoration Act" bill similar to Indiana's RFRA. Today, the governor surprised people by rejecting the bill as written and asking for changes. As CNN reports:

Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law.

The first-term Republican governor said he wants his state "to be known as a state that does not discriminate but understands tolerance."

While the requested change would remove some of the dangerous aspects of the bills that differentiated them from the federal version, it would still leave the door open to state-sanctioned discrimination in the name of religion.

The federal RFRA dates back to 1993, and neither its text nor its purpose empower anyone to bypass laws protecting LGBT people from discrimination. However, as PFAW Senior Fellow Elliot Mincberg has written, the Supreme Court drastically rewrote the law last year in its 5-4 Hobby Lobby decision:

[As Justice Ginsburg explained in her dissent,] the Court effectively rewrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

That's why Gov. Hutchinson's call for a bill that matches the federal RFRA does not solve the discrimination problem. A state law tracking the federal RFRA and passed after Hobby Lobby is far more likely to be interpreted by the courts along the same lines. This is especially so since the bill's supporters regularly cite their desire to "protect" businesspeople who are religiously offended by same-sex couples from serving them.

The Arkansas and Indiana RFRAs have features making them even more open to be used as vehicles for otherwise illegal discrimination than the federal RFRA as transmogrified by the Roberts Court. But if Gov. Hutchinson succeeds in getting a bill that matches the federal version, he still will not have accomplished his stated goal of making Arkansas "known as a state that does not discriminate."


Gov. Pence's Claims Ignore Indiana "Religious Freedom" Law's History

As he has since signing Indiana's so-called Religious Freedom Restoration Act, Governor Mike Pence today insisted that the law does not allow discrimination. As reported in the Indianapolis Star:

[Pence] stressed that RFRA was about "religious liberty, not discrimination" and emphasized that the law does not give anyone the right to turn away customers on religious grounds.

"This law does not give anyone the right to discriminate...This law does not give anyone the right to deny services," he said.

Let's rewind the tape to the legislative debate over the bill. Senate Amendment # 4 would have added a key provision to the bill that would have made Gov. Pence's words accurate.

This chapter does not apply to:

(1) IC 22-9-1 (Indiana civil rights law); or

(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

However, the state Senate defeated this amendment by a lopsided vote of 10-40.

The Indiana House was equally insistent that the bill not be amended to provide any protection to state and local anti-discrimination laws. House Amendment # 5 would have added the following text to the law:

For purposes of this chapter:

(1) the protection of civil rights; or

(2) the prevention of discrimination;

is a compelling government interest.

Unlike the Senate amendment, this would not have completely exempted anti-discrimination laws from attack under RFRA. Nevertheless, this more moderate effort to make it harder to bypass such laws was still too much for the House, which overwhelmingly rejected the amendment in a 31-60 vote.

It would be nice to think that Governor Pence was right, and that this law didn't open the door to discrimination. But that is exactly what the law does, and its history makes that even clearer.  If Pence wants to "clarify" that the state's RFRA law won't allow denial of service, he can point legislators to amendment language that would make that as clear as day.


Alabama's Shame Grows with Bill to Make It Harder for Gays to Marry

In some parts of the world, government officials won't help you if you don't share their religious beliefs. Citizens seeking to be served by government employees have to go from office to office, experiencing the shame and frustration of being turned away by those whose salaries they pay.

Yesterday, Alabama took a step toward becoming such a place, to the delight of the far right.

The Alabama House passed the so-called "Freedom of Religion in Marriage Protection Act" by an overwhelming margin of 69-25 yesterday. Among its provisions is one stating that civil servants have the right to refuse to perform any civil marriage ceremony should they wish. As AL.com reported:

In session today, Rep. A.J. McCampbell, D-Livingston, asked [bill sponsor Jim] Hill: "Why all of a sudden has this become an issue?"

Hill replied: "I can't answer that, sir."

Really? It isn't hard to figure out:

Tears came to the eyes of Rep. Patricia Todd, D-Birmingham, as she spoke against the bill on the House floor. Todd, the only openly gay legislator in the state, said the bill was drafted to discriminate against gay couples who want to marry.

"This is very hurtful to me as an openly gay person," she said.

Ever since a federal district judge ruled that Alabama's marriage ban violates the Constitution, the state has been a showcase of defiance. Alabama Chief Justice Roy Moore violated the canons of judicial ethics in seeking to force government officials from complying with the ruling, prompting our affiliate PFAW Foundation to file a formal complaint with the Judicial Inquiry Commission. Because of Moore, Alabama quickly became a checkerboard where gay and lesbian Alabamans were locked out of full citizenship across vast swaths of the state based on the whims of local officials. The state supreme court then shut down marriages for same-sex couples across the state in a highly controversial ruling.

Now Alabama legislators are seeking to guarantee that even if the U.S. Supreme Court rules that lesbians and gays have the right to marry, it is a right they will not be able to exercise across vast swaths of Alabama, unless they can find a public servant whose religious beliefs do not include a vehement hostility to lesbian and gay equality. That this bill targets one group of people for second class citizenship cannot be seriously questioned. No one should be fooled for a moment that this has anything to do with religious liberty, a fundamental American value designed to be a shield from oppression, not a sword to harm others.