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 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.
This op-ed was originally published at The Huffington Post.
Over the last twenty years, 19 states have passed laws modeled on the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 with broad bipartisan support. But just this year, almost the same number, 15, have seen such bills introduced, generating enormous controversy across the country, particularly in Indiana where Gov. Mike Pence signed the new state RFRA into law.
Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it's a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court's rewriting of RFRA in Burwell v. Hobby Lobby.
Even before the Supreme Court agreed to decide the marriage equality issue, the far right has highlighted the supposed dangers to small businesses like bakers and florists who do not want to serve LGBT couples because of religious objections. Under RFRA as passed in 1993, and under the protection from the First Amendment's Free Exercise doctrine that it was meant to restore, RFRA wouldn't have offered much help. First, neither had been applied to non-religious corporations, which had never been thought to have religious freedom rights. Second, it would have been very hard to argue that a neutral law banning discrimination against LGBT people would have created a "substantial burden" on actual religious exercise, which is required to qualify for a RFRA-type exemption. For example, in one case the Supreme Court rejected the claim that requiring federal welfare recipients to submit social security numbers was such a burden even when it conflicted with an applicant's religious beliefs. And even if such a burden were created by obeying an anti-discrimination or other general law, pre-Hobby Lobby law would not have helped a religious claimant: as the Court ruled in rejecting a religious exemption to a requirement that a religious farmer withhold social security taxes, such an exemption would improperly "operate to impose the employer's religious faith on the employees" and others.
But then came Hobby Lobby.
In that case, writing for a bare majority of the Court, Justice Alito ruled that religious objections by a corporation's owners exempted them under RFRA from providing contraceptive coverage through insurance to employees under the Affordable Care Act. As Justice Ginsburg explained in dissent, rather than interpreting RFRA to restore prior case law, the majority interpreted it as going beyond prior Court decisions to maximize benefits to religious claimants. In particular, she explained, the Court effectively re-wrote 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.
So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the Court's re-writing of RFRA's language. Indeed, in communicating with supporters about the Indiana RFRA law, the far-right Family Research Council specifically called it the "Hobby Lobby bill."
Even better, rhetoric directed at outsiders could be cloaked in general language about protecting religious freedom, not attacking LGBT rights. Supporters could even invoke Democratic supporters of RFRA like President Clinton and claim that neither RFRA nor its state counterparts had been interpreted to allow discrimination, as Indiana Gov. Pence has tried to do. These claims ignore the fact that it wasn't until last year that the Supreme Court effectively rewrote the language in RFRA so that it was transformed from a shield for religious liberty into a sword against anti-discrimination protections. And previous supporters like President Clinton have made clear their opposition to this year's state RFRA proposals.
Under pressure, the neutral façade of recent state RFRA proposals has crumbled. When pushed to amend a state RFRA proposal in Georgia to make clear that it could not be used against anti-discrimination ordinances, a Georgia legislator admitted that one of the reasons for the bill was to allow it to be invoked by the small business owner who had religious objections to providing services to an LGBT couple. And when an amendment was added in the Georgia House Judiciary Committee to state that the RFRA bill was not to be used against discrimination laws, the bill was promptly tabled on March 26, with a supporter stating that the amendment would "gut" the bill.
As of now, the fate of RFRA bills in Georgia and elsewhere is uncertain and Gov. Pence has asked the legislature for an amendment to "clarify" that Indiana's RFRA law cannot be used to deny services to anyone. That would be a welcome step - one that flies in the face of the clear intent of some of the bill's backers, which was clearly to enshrine such a "right" for Indiana businesses. Language has been adopted elsewhere to make clear that state RFRAs cannot be used against anti-discrimination bills; such a provision is currently in Texas' RFRA, although there is a proposal to remove it. Before Hobby Lobby, such language might not have been necessary. After Hobby Lobby, it is crucial.
This op-ed by Rev. Timothy McDonald III, , was originally published at The Huffington Post.
Last week, a bill disguised as a "religious liberty" measure that would give a green light to discrimination was passed by the Georgia Senate and will now go to the House.
As a Baptist pastor, I feel called to weigh in on a proposal that is supposedly designed to protect religious rights in my state. I fully support every person's constitutionally-protected right of the free exercise of religion. The right to pray to whatever God you believe in and freely practice your religion is a fundamental one, and one that must be protected.
But I do not support this bill, which is not a true effort to protect First Amendment rights. And the fact that supporters in the state Senate quickly and unexpectedly brought it up in committee when no Democrats were present makes me wonder if even proponents aren't so sure of its merit.
The proposed bill is modeled on a national religious freedom bill that passed in 1993, and supporters claim that it would shield people of all religions from government intrusion. In reality, this is a bill that threatens to allow businesses and individuals to simply flout the laws they don't like. It threatens to turn "religious liberty" law from a shield to guard individual liberties into a sword to bring harm to others.
For example, what happens if medical workers, citing religious beliefs, decide that they won't treat gay or transgender people? If business owners decide that they won't serve Muslims or interracial couples? If landlords decide they won't rent to single women? Beyond anti-discrimination protections, what happens if individuals or business owners claim they are exempt from any number of laws they disagree with? What happens, for example, if employers decide that paying their workers a minimum wage goes against their religious beliefs? Do we want to live in a society where your legal rights depend on the religious beliefs of others in the community?
Basic rights and equality should never yield to discrimination.
Other religious leaders here in Georgia aren't fooled, either. Working with a group of more than 160 clergy across the state, we have been asking our elected officials to abandon this misguided project, urging them not to pass any so-called "religious freedom" legislation that could lead to widespread discrimination. Handing people the "right" to use the mantle of religious liberty to harm others? Not in our name.
It's clear that rather than fixing a problem, as good public policy should, this bill would create problems, and often for those most vulnerable among us.
Even former state attorney general Michael Bowers, who once fought in favor of anti-gay "sodomy" laws, has called the bill "nothing but an excuse to discriminate," saying it is "ill-conceived, unnecessary, mean-spirited, and deserving of a swift death in the General Assembly."
I agree. My faith tells me that I should stand up for the marginalized. That I should speak out against proposals that could deny basic rights to others -- especially when it's being done in the name of religion.
Attorney General Eric Holder, who today announced his plans to resign, has been a leader in addressing systems of racial discrimination and protecting the fundamental rights of every American to be treated equally under the law and participate in our democracy.
Perhaps it’s not surprising, then, that the Right loves to hate him.
In February of this year, the American Family Association demanded Holder’s impeachment after he had the audacity to treat married same-sex couples like married opposite-sex couples with regard to a host of legal rights and recognitions. Shortly after, both Faith and Freedom Coalition head Ralph Reed and Republican Rep. Tim Huelskamp echoed the call for Holder’s impeachment because of his support for marriage equality. Televangelist Pat Robertson also joined the impeachment parade, alleging that under Holder, “sodomy” was being “elevated above the rights of religious believers.”
Holder’s commitment to redressing racial injustice was no more warmly received by the Right than his work in support of LGBT equality. After Holder spoke out against voter ID laws, which disproportionately harm people of color, Texas Gov. Rick Perry accused him of “purposefully” “incit[ing] racial tension.” Gun Owners of America director Larry Pratt argued that Holder’s open discussion of racial discrimination in the criminal justice system means that he is the real “racist,” asserting last year that Holder wants to “intimidate the rest of the country so that we don’t think about defending ourselves” against “attacks by black mobs on white individuals.” Bryan Fischer of the American Family Association went so far as to say that Holder would never “prosecute someone if the victim is white.” And after Holder visited Ferguson, Missouri last month, David Horowitz outrageously commented that the attorney general was leading a black “lynch mob.”
And those are just a handful of the attacks the Right has leveled against Holder for his work protecting equality under the law.
The fact that the far Right has reacted with so much vitriol to the attorney general’s leadership is a sign not only of how uninterested they are in the civil rights that the Justice Department is meant to protect, but also of how effective Holder’s work has been. The next attorney general should share Holder’s deep commitment to protecting the rights of all Americans – and, by extension, make all the “right” enemies among those hoping to turn back the clock on civil liberties.
In anticipation of this weekend’s annual Values Voter Summit, a multi-day event where GOP elected officials and presidential hopefuls rub elbows with Religious Right leaders, People For the American Way President Michael Keegan joined the leaders of the Southern Poverty Law Center and five other civil rights and LGBT organizations in an open letter calling on Republican National Committee chair Reince Priebus to ask members of his party to disassociate themselves from the summit.
The letter, printed in the Washington Post and The Hill this morning, highlights the repeated and vicious demonization of LGBT people by the groups responsible for the summit, including its host, the Family Research Council:
Its president, Tony Perkins, has repeatedly claimed that pedophilia is a “homosexual problem.” He has called the “It Gets Better” campaign — designed to give LGBT students hope for a better tomorrow — “disgusting” and a “concerted effort” to “recruit” children into the gay “lifestyle.”
… Bryan Fischer of the American Family Association, a summit sponsor, has said the U.S. needs to “be more like Russia,” which enacted a law criminalizing the distribution of LGBT “propaganda.” He also has said, “Homosexuality gave us Adolph Hitler, and homosexuals in the military gave us the Brown Shirts, the Nazi war machine, and six million dead Jews.”
By participating in the summit, Republican Party leaders risk legitimizing this kind of virulent extremism. Given that reality, the letter asks a simple question: where does the GOP stand on gay bashing? Reince Priebus himself has said, “People in this country, no matter straight or gay, deserve dignity and respect.” But will he walk the talk and, as the letter asks, “tell the members of your party to shun groups that demean other people and deny them dignity?”
You can read the full letter here.
Today President Obama signed an executive order protecting LGBT employees of federal contractors from workplace discrimination. In remarks this morning, the president said that our government “will become just a little bit fairer” today.
President Obama pointed out that many Americans go to work every day with the fear that they could lose their job because of who they are. It’s time to “address this injustice for every American,” he said, urging Congress to pass the Employment Non-Discrimination Act (ENDA). While today’s executive order expands protections to millions of LGBT people who work for federal contractors, we still lack a nationwide law to protect LGBT workers across the board. In many states, you can still be fired for being lesbian, gay, bisexual, or transgender.
Following the Obama administration’s announcement that an executive order was in the works, People For the American Way joined nearly 100 other organizations, including many faith groups, in a letter urging the president to reject a call for an additional religious exemption — which ultimately was not included. The letter noted:
Religious freedom is one of our most cherished values, a fundamental and defining feature of our national character. It guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs within certain limits. It does not, however, provide organizations the right to discriminate using taxpayer dollars. When a religiously affiliated organization makes the decision to request a taxpayer-funded contract with the federal government, it must play by the same rules as every other federal contractor. [emphasis added]
Jonathan Capehart from the Washington Post reports that in the past few weeks, there have been “extraordinary meetings” in the White House among LGBT and religious communities about both the necessity of protecting workers from discrimination and religious liberty. As Capehart writes, “The president’s action today shows the two are not mutually exclusive.”