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Gay/Lesbian Issues



All Reason.com articles with the "Gay/Lesbian Issues" tag.



Published: Fri, 18 Aug 2017 00:00:00 -0400

Last Build Date: Fri, 18 Aug 2017 17:50:38 -0400

 



Reason Foundation Supports Florists, Bakers in Gay Wedding Case Before Supreme Court

Wed, 16 Aug 2017 11:45:00 -0400

Consumer goods like custom floral bouquets and wedding cakes are also acts of expressive artistry protected by the First Amendment. Shops who arrange flowers and bakeries that produce cakes cannot be compelled by law to do so for same-sex weddings if owners have religious objections. That's the argument presented in an amicus brief submitted to the Supreme Court this week by the Reason Foundation (the non-profit think tank that produces this site and publishes Reason magazine), the Cato Institute, and the Individual Rights Foundation. The Supreme Court agreed in June to hear the case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The case involves a Lakewood, Colorado, bakery whose owner, Jack Phillips, declined to make a wedding cake for a gay couple due to his objections to same-sex marriage. The state ruled Phillips violated the state's public accommodation laws that prohibit discrimination on the basis of sexual orientation. Meanwhile, Baronnelle Stutzman, owner of Arlene's Flowers, in Richland, Washington, has faced similar government sanction for refusing to provide floral arrangements for a same-sex wedding. Stutzman is standing on her religious opposition to same-sex marriage in her petition to the Supreme Court. The Reason Foundation, the Cato Institute, and the Individual Rights Foundation brief encourages the court to consolidate the Stutzman and Masterpiece Bakeshop cases. Considering the cases together would "provide the Court with a more extensive factual record on which to base a decision, as well as help clarify the applicability of the ultimate decision's holding," the brief says. Essentially, they want the Supreme Court to determine whether flower arrangement is also a form of expressive activity and possibly protected free speech. As it stands, the Supreme Court could issue a ruling narrow enough to cover only wedding cakes. The brief presents two arguments to encourage the court to decide on behalf of the bakery and the florist. First, arranging flowers or baking a wedding cake is artistic expression protected by the First Amendment. The brief argues the court has previously held a fairly broad view of what counts as symbolic speech, and floral arrangements and wedding cakes should be included: Art is speech, regardless of whether it actually expresses any important ideas—or even any perceptibly coherent idea at all. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston—which upheld the right of parade organizers not to allow a gay-rights group to march because they did not want to endorse the its message—even went so far as to say that the paintsplatter art of Jackson Pollock, atonal music of Arnold Schoenberg, and nonsense words of Lewis Carroll's Jabberwocky poem are "unquestionably shielded" by the First Amendment. Second, the brief argues the government is using anti-discrimination laws to compel business owners to participate in same-sex wedding ceremonies, regardless of their religious objections. The lower courts have determined that providing cakes and flower arrangements does not "endorse" same-sex marriage. The brief asks the Supreme Court to reconsider this attitude and argues that these businesses are being ordered to put their stamp of approval on a concept (same-sex marriage) to which they object. The brief uses Wooley v. Maynard, where the Supreme Court previously ordered that New Hampshire couldn't force citizens to display the state's motto on their license plate if they objected to the statement "Live Free or Die": Surely, no observer would have understood the motto—printed by the government on government-provided and government-mandated license plates—as the driver's own words or sentiments. … Yet the Court nonetheless held for the Maynards. … The Court reasoned that a person's "individual freedom of mind" protects her "First Amendment right to avoid becoming the courier" for the communication of speech that she does not wish to communicate. … People have the "right to decline to foster ... concepts" with which they disagree, even wh[...]



Brickbat: Going Gay

Thu, 10 Aug 2017 04:00:00 -0400

(image) In London, the Tower Hamlets council has given developers the go ahead for a project that will include offices and luxury apartments but only if it also includes a gay bar. The bar must stay open at least 12 years, and officials say the government must be involved in the decision about who gets to rent the space and will send an inspector to make sure it is gay enough. Council members say they are concerned LGBT clubs across the city are closing and this particular site once housed a gay pub.




Federal Judge Notes Good Done by Gay Escort Site, Sentences Founder to Six Months in Prison

Thu, 03 Aug 2017 12:50:00 -0400

A federal judge Wednesday sentenced Jeffrey Hurant, founder of Rentboy.com, to six months in federal prison for promoting prostitution. In a turn both remarkable and infuriating, the judge, Margo Brodie, acknowledged that both Hurant and Rentboy.com have done good things for the gay community before sending him off to prison. From The New York Times: In court papers filed in Brooklyn, Mr. Hurant has pointed out that aside from making money — lots of money — Rentboy permitted prostitutes to move their trade from the streets to the safety of the internet and to work independently of pimps. The company ran Rentboy U, he said, which offered escorts classes in financial management and safe-sex practices. And, he added, it made large donations to the fight against AIDS and H.I.V., working at times with government agencies like the New York City Department of Health. On Wednesday, a judge in Federal District Court in Brooklyn gave credence to his arguments, saying that while Mr. Hurant had broken the law, he had also done enormous good for the lesbian, gay, bisexual and transgender community. Even amid the overwrought panic over human trafficking in the culture of American sex work, the federal bust of Rentboy.com in 2015 stood out. The site had existed for nearly 20 years and was well-known as a resource for men to connect with male sex workers. It was operating in the open, not via some dark web resource. When they were busted by the Department of Homeland Security, nobody in the government even tried to claim that anybody had been victimized. The shutdown of the site and the arrest of workers and founder Jeffrey Hurant was based solely because prostitution was illegal and that Rentboy was making millions of dollars facilitating it—which the government then immediately moved to seize. It wasn't until after the site was shut down that the feds began investigating the possibility that any human trafficking or involvement with underage participants might have happened. Following the bust, Reason interviewed a client who had been relying on Rentboy.com to find partners for sexual fulfillment. He said he would not be having sex at all if it weren't for the men he had been connecting with through the site. Read the interview here. On Wednesday Brodie affirmed, "The very thing that was illegal, it also did a lot of good," before sentencing Hurant to less than half the time prosecutors asked for. Apparently she feels bad about it! To be clear, it is still very possible to find gay escorts online. The sites are a little less obviously named (and given what happened to Rentboy, I'm obviously not going to link to them), and Rentboy's shutdown has probably fragmented the sex work marketplace. The end result is online male sex work operates in a more shadowy, secretive area with fewer safety protections and less of a community. After all, they wouldn't want the government to take note. Sex work has actually become more dangerous for prostitutes and clients and everybody involved with this case knows it. Enforcing the law as written actually causes American citizens greater harm with the potential to lead to actual human trafficking. (Small update to respond to the comments: Brodie did have the option to not sentence Hurant to any prison time, and in fact, she gave him the opportunity to essentially beg for his freedom. There was not a mandatory minimum sentence binding her decision here. Apologies for not making that more clear.)[...]



Federal Agencies Split on Whether Civil Rights Act Protects Against Anti-Gay Discrimination

Thu, 27 Jul 2017 13:00:00 -0400

The Department of Justice and the federal Equal Employment Opportunity Commission (EEOC) are at odds over whether sexual orientation is covered by the bans on sex discrimination in the Civil Rights Act of 1964. The EEOC believes, and has repeatedly argued over the past few years, that discrimination against people on the basis of sexual orientation or gender identity is already covered within the Civil Rights Act. They present this argument despite the fact that most people treat these categories as separate and that at the time of the passage of the act, legislators were most certainly not attempting to protect gay or transgender people from workplace discrimination. In a brief filed yesterday for a workplace discrimination case in the U.S. Court of Appeals for the 2nd District, the Department of Justice contradicted the EEOC, telling the court that discrimination on the basis of sexual orientation is specific and different from discrimination on the basis of sex and is not covered under the Civil Rights Act. Court precedents have made it more complicated to separate out what the law means when it talks about sex discrimination. A Supreme Court precedent set in 1989 established that discrimination on the basis of "gender stereotyping" counts as sex discrimination. So punishing a male employee for being feminine or a female employee for being masculine can be forbidden. Efforts to use this concept to oppose discrimination against people for being transgender began prior to Barack Obama's presidency, but his administration ultimately supported the idea. The idea that Title VII of the Civil Rights Act already covers transgender discrimination is what prompted the Obama administration to oppose North Carolina's controversial "bathroom bill." The administration also argued that Title IX of the Education Amendments of 1972, which bars sex discrimination, also requires public schools to accommodate transgender students by allowing them to use the gender-separated facilities (restrooms, locker rooms) of their choice. Under Attorney General Jeff Sessions, the Department of Justice has already withdrawn the guidance to schools that was sent under the Obama administration, stating that federal courts are still split on the underlying issues. This week the Department of Justice weighed in on that workplace discrimination case, which hinges on whether Title VII covers sexual orientation. The department's attorneys argue that it does not. They argue that Congress has the authority to decide whether to add sexual orientation as a protected class, has had numerous opportunities to do so over the years, and has not. "The theories advanced by the EEOC and the Seventh Circuit lack merit," they state. "These theories are inconsistent with Congress's clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination." It remains to be seen whether this argument from the Justice Department will influence the outcome of the case. In April, the U.S. Court of Appeals for the 7th Circuit ruled, 8-3, that the Civil Rights Act does prohibit discrimination on the basis of sexual orientation as a form of sex discrimination. As I noted at the time, these cases seem likely to end up before the Supreme Court eventually. Read the Department of Justice's brief here.[...]



More Americans Support Same-Sex Marriage Than Ever

Mon, 26 Jun 2017 15:45:00 -0400

As Gay Pride month draws toward a close, a new poll by the Pew Research Center suggests the fight over same-sex marriage in the United States is over. This is not Roe v. Wade 2.0. Sixty-two percent of Americans support legal recognition for married gay couples, while only 32 percent opposed, according to the latest poll numbers gathered earlier in June. Gay marriage and homosexuality itself does not represent the cultural divide it used to and is becoming "normalized" in the eyes of most Americans. It's worth remembering majority support for same-sex marriage recognition surpassed opposition for the first time in 2011. This shift has taken place over just six years. Pew notes that demographic groups historically more opposed to same-sex marriage have shifted significantly. For the first time a majority of baby boomers support legal recognition. Over the past two years, support for recognition among African Americans has increased from 39 percent to 51 percent. Support from younger white evangelical Christians has jumped from 29 percent to 47 percent in just a year. In terms of the political fight over who "owns" the LGBT vote, it's worth noting what's going on with Republicans. For the first time, opposition to legal recognition among Republicans and Republican leaners has dropped below the majority. It's nearly split now—47 percent favor recognition while 48 percent oppose it. That shift in the political winds is very important in terms of how elements of the LGBT movement are attempting to tie it to "The Resistance" and reinforce the idea that the real LGBT political movement leans to the left. The end result this year has been a purging of actual LGBT people from pride marches for not holding the right views or for being—interestingly enough—members of disfavored groups. A gay supporter of President Donald Trump became a national news story because a pride parade in Charlotte, North Carolina, is refusing to let him participate. In cities like Minneapolis and Washington, D.C., protesters attempted to block police participation in the parade, in some sort of attempt to draw attention to police abuse. In Chicago, people said they were told they could not wave flags displaying the Star of David and express their Jewish heritage within the parade because it made others uncomfortable. In each of these cases, people are trying to purge other LGBT participants for reasons that have little to do directly with the gay community. Trying to ban the police was particularly loathsome (and you could tell from responses to the behavior in the media coverage), given that gay people have both been fighting for years to get police to treat them with respect and to serve as openly gay police officers. The political roots of gay pride are deeply embedded in stopping police violence targeting gay people. That's what the Stonewall Riots were about! There's something particularly narcissistic about trying to purge your adversaries from your sight by denying them participation in these events and thinking that this is a useful response. There is nothing about purging police from a march that's going to improve the relationship between police and minority communities. Purging Jewish flags is not going to do a single thing to improve the relationship between Israel and Palestine. That support for gay marriage has so dramatically increased is a direct reflection of the value of participation, not of purging and segregation. LGBT people are increasingly visible in all communities (not just urban enclaves), and the realization that gay marriage helps strengthen families and social stability has undoubtedly contributed to the dramatic drop in resistance to gay relationships. Activists might want to keep that in mind before trying to deliberately boot people out of the movement.[...]



Supreme Court to Hear Case on Gay Wedding Cakes

Mon, 26 Jun 2017 10:38:00 -0400

(image) Is a wedding cake speech? When a baker makes a wedding cake, is he or she declaring support for the couple's marriage? Can a baker decline to bake a cake for a gay couple (and defy a state's anti-discrimination laws) because he or she objects to same-sex marriage on religious grounds?

Today, the Supreme Court announced they would be taking up a case that may answer these questions for anyone who provides services for gay weddings. This is likely to be a case with a narrow ruling about religion and compelled speech and what constitutes an artistic expression. Don't expect a broad ruling that would change the nature of state-level public accommodation laws one way or the other.

In Masterpiece Bakeshop Ltd. Vs Colorado Civil Rights Commission the owner of a bakery in Lakewood, Colo., declined to bake a wedding cake for a gay couple because he had religious objections to same-sex marriage. In 2014 he was ruled to have violated the state's anti-discrimination laws on public accommodation.

He is one of a handful of similarly-minded business owners who offer their goods and services to weddings but oppose same-sex marriage recognition. We've seen other cases involving bakers, florists, photographers, and owners of private wedding venues.

The Supreme Court had previously turned away challenges to state-level antidiscrimination laws, but the court has been sitting on this case for months without deciding one way or another if they'd take it. Today was the last day in this session for the court to report out whether they would grant the case. After months of rescheduling, they've decided that they will.

The case will in all likelihood be very narrowly focused on whether the free speech and free religion rights of bakery owner Jack Phillips have been violated. The Supreme Court will have to consider whether the making of a wedding cake is a form of artistic impression and whether, therefore, laws forcing Phillips to serve same-sex couples constitutes compelled speech.

Historically, as I explained about these cases in 2015, courts have not determined cakes themselves to be expressive activity (therefore not protected speech). But text, writing, and imagery placed on the cake can be considered speech, and a bakery cannot be forced to communicate text or images they deem offensive. The question is whether the creation of a wedding cake itself is a form of speech.

Libertarians hoping for a broader ruling related to whether public accommodation laws violate the free association rights of business owners will probably be disappointed. There is zero chance this court is going to rule in such a way that alters state-level public accommodation laws. This case will mostly revolve around whether the activities of people like bakers and florists are considered artistic speech and therefore are possibly exempt from such laws.

Read more about the case itself from SCOTUSblog here.




Religious Objections to LGBT Issues in Mississippi Back in Play—for Now

Fri, 23 Jun 2017 15:30:00 -0400

(image) A controversial, religion-based LGBT law in Mississippi can't be blocked based solely on fears that discrimination will follow, a federal panel of judges ruled this week.

On the surface, Mississippi's HB 1523, passed last year, appears to be "religious freedom" legislation intended to protect Christian conservatives from state punishment for making decisions like declining to sell wedding cakes to gay couples.

What the law actually does is more complex, anti-libertarian and clearly unconstitutional.

The law grants special protections by the state for three particular religious beliefs. They are:

  • Marriage is or should be recognized as only being between a man and a woman.
  • Sexual relations are properly reserved to such a marriage.
  • Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

The law grants people who have only those beliefs various protections under the law. Religious organizations cannot be accused of discrimination on the basis of making decisions in accordance with the protected beliefs. The state cannot discriminate against families who want to adopt or foster children because they share those protected beliefs.

The state cannot punish doctors or therapists who refuse to provide services that would violate those beliefs (meaning a doctor couldn't refuse to treat people simply because they're gay or transgender but could refuse to provide therapy or treatment to help facilitate a sex change).

The state couldn't punish businesses for refusing to serve people in accordance with those beliefs or interfere with schools and businesses setting their own policies of how (or if) to accommodate transgender people. The state wouldn't even be able to punish government employees who refuse to hand out same-sex marriage licenses, but only if it's because of their religious beliefs.

To be very clear, this is not some form of Religious Freedom Restoration Act allowing people general but limited exceptions to following laws because of religious beliefs. This is a law that determines only these three beliefs get special protection. The law is in clear violation of the Establishment Clause, which prohibits the government from showing a preference for any particular religious belief. It is blatantly unconstitutional.

Objecting to the law, a group of plaintiffs filed suit, and a lower court put an injunction in place to keep it from implementation.

The U.S. Fifth Circuit Court of Appeals panel did not make a decision about the constitutionality of the law in any way. Instead, the three judges ruled unanimously that the plaintiffs lacked standing at this point to oppose the law. There is no case yet seeking relief from the courts. The ruling notes that in order for the judges to grant standing, it's not enough to argue that the law violates the Establishment Clause—"[the plaintiffs] must allege a personal violation of rights."

The panel's decision should not be taken as a determination that the law is constitutional or valid. Assuming the law actually gets implemented, it probably won't be long before somebody will be able to prove the law has affected them.




A City Uses a Farmer's Views on Gay Marriage to Shove Him Out of the Market

Mon, 19 Jun 2017 14:15:00 -0400

A lawsuit in Michigan combines a familiar question—whether a business can refuse to service a gay wedding on religious grounds—with a more unusual question: How far can a local government go to control behavior outside its boundaries? Steve Tennes, owner of Country Mills Farms, is suing the City of East Lansing for booting it from a city-operated farmers market. Tennes, who is Catholic, believes marriage should be reserved for heterosexual couples. He hosts weddings on his farm, but not for same-sex couples, and he has turned away a lesbian couple in the past. He has also laid out this policy in a Facebook post. Michigan does not include sexual orientation in its public accommodation laws. The city of East Lansing does include sexual orientation in its own laws, so city officials have told Tennes he can't participate in its farmers market. County Mills Farms is not within the city limits of East Lansing. It's around 20 miles away. Tennes is not accused of actually violating city law in any way. When he travels to the market in East Lansing, he apparently sells his produce (mostly apples) to all comers. Tennes' discriminatory behavior takes place outside East Lansing's jurisdiction. But after begging Tennes to drop out of the market and failing (according to the lawsuit), the city updated its law to require those who want to conduct business within East Lansing to follow the city's discrimination laws as "a general business practice." Thus, East Lansing wants to use Tennes' refusal to host same-sex weddings elsewhere as a reason to keep him from doing business within the city. Tennes is being represented by Alliance Defending Freedom, a religious conservative organization. Its lawsuit presents the familiar claim that Tennes' religious freedom and free speech rights have been violated. But the suit also argues that East Lansing is violating Michigan's Home Rule law by attempting to control Tennes' behavior outside the boundaries of its city. The lawsuit is asking for only a single dollar in damages; what it really wants is the federal government to order East Lansing to let the farmer back into the farmers market. Note that this is something significantly different from the city setting the rules for private businesses who want to contract with the city itself. Cities often have policies that require contractors to obey their discrimination laws if they want to do business with them. It's the taxpayers' money they're spending, and they have the authority to set the rules for associating with them. (That everybody should have a similar right is lost on them.) But in this case, East Lansing is setting guidelines to control who can participate in an open marketplace. And it wants to do so based on activities that have absolutely no relationship with what is going on in the market itself. This suggests that the exclusion has more to do with Tennes' views than his behavior. One possible counterargument would be "It's the city's market, so they should be able to set the rules." But that just raises a larger policy issue: Why is the city running a farmers market in the first place? Many cities have similar markets; East Lansing started its in 2009. According to the lawsuit, there's a complex permitting process and limited space for participation, putting city officials in the position of deciding which private sellers get to profit off sales in this public space and which are refused. It's yet another example of city policies creating a system of winners and losers. Even if you were support including sexual orientation in public accommodation laws, and even if you support requiring businesses to provide the same services to gay weddings that they do to straight ones, there are larger implications in what East Lansing is doing. Could a city keep a business out for paying lower (but legal) wages to employees outside city limits? Could a ci[...]



LGBT Pride Parade Turns Away Gay Trump Supporters

Fri, 09 Jun 2017 13:50:00 -0400

Gay pride parades are generally celebratory affairs, but they've also almost always had a political side too. "I'm here and want to have fun!" had an inherent political edge to it when the right to be openly gay or transgender was still being litigated in courts of both law and public opinion. The right to be gay is all but settled as a legal matter these days, and transgender acceptance has been dramatically increasing. One might expect, then, that the pride parades of summer might start to grow less political and more like other cultural celebrations. Apparently not. LGBT leaders' opposition to President Donald Trump has made the parades more political. In at least one case, parade organizers have rejected a float. Even though Brian Talbert is gay, the organizers of Charlotte, North Carolina's pride event have told him he can't participate with a float touting his support for Trump. Talbert's story is picking up national attention. From The Washington Post: Reached by email, Charlotte Pride released a statement saying the organization "reserves the right to decline participation" at events to groups that do not reflect the mission and values of the organization. The statement said that policy is acknowledged in its parade rules and regulations, and noted that in the past, organizers have made "similar decisions" to decline participation from "other organizations espousing anti-LGBTQ religious or public policy stances." "Charlotte Pride envisions a world in which LGBTQ people are affirmed, respected, and included in the full social and civic life of their local communities, free from fear of any discrimination, rejection, and prejudice," the statement added. But Trump has notably not espoused antigay policy stances and has, in fact, resisted efforts to do so within his administration. So far, Trump is probably the most LGBT-friendly Republican president we've had. That doesn't mean that Trump supports the same policies that progressive LGBT leaders would like. That's really the crux of the problem: Trump's administration doesn't want to use the federal government to advance anti-discrimination policies that cover LGBT people. His Department of Justice has withdrawn federal guidance ordering public schools to accommodate transgender students' gender choices for bathrooms and other facilities. Put in historical context, that's a relatively mild decision, though it must feel awful for transgender students who are affected (and ultimately it may be decided by the courts, not Trump's administration, anyway). Despite LGBT activists' fears, the administration is not scaling back executive orders forbidding government contractors from engaging in LGBT discrimination. Life is still improving for LGBT people. The Los Angeles pride parade and festival is this weekend, but apparently it's no longer the same pride parade people are used to. It's been transformed into an anti-Trump "resistance" march, under the odd and incorrect assumption that being part of the LGBT community inherently requires you to embrace of a host of political positions. New York, Austin, Seattle, and D.C. are joining them. L.A. Weekly quotes one of the march organizers: "#ResistMarch was built around the concept of standing in solidarity for all human rights," explains Brian Pendleton, a CSW board member. "The march is meant to be a celebration of humanity that is all part and parcel of the LGBTQ community. We are immigrants, we are women, we are seniors, we are communities of color, and on and on. Very few communities encompass so many different types of Americans." That's true. But it also means the community encompasses Trump voters and other types of conservatives. Even here in the extremely liberal city of Los Angeles, I know at least one gay Trump supporter. What Pendleton is promoting isn't a celebration of humanity. It's a policing [...]



Trump's Religious Freedom Order Doesn't Roll Back LGBT Protections

Wed, 03 May 2017 22:05:00 -0400

(image) Once again, fears that the Trump administration is going to roll back federal LGBT protections may end up proving to be misguided.

The LGBT community and the American Civil Liberties Union (ACLU) erupted in a new round of activism and concern when Politico reported yesterday President Donald Trump was planning to sign a new religious liberty executive order on Thursday.

Politico reported based on unnamed sources that this order was similar to one that Trump had previously rejected. That initial order catered to religious conservatives by carving out massive exceptions from federal discrimination laws and demanded certain religious positions be accommodated.

Let's be clear about that first draft from a libertarian perspective: This was not what libertarians would classify as a "religious freedom" executive order. As I explained back in February when it came around, that proposed order would have classified particular religious beliefs—that marriage is for heterosexual couples, that sex is immutable and determined at birth, and that life begins at conception—as beliefs protected by government order. It literally declared particular beliefs that the government would recognize over others and therefore violated the Establishment Clause. There were parts of the executive order that libertarians would support, like exempting religious organizations from having to pay for employees' birth control or abortions. But overall the order had serious, fundamental constitutional issues and it was good that Trump didn't sign it.

So, when Politico reported that the order was back, LGBT organizations and the ACLU sounded the alarms again. The ACLU held a rally today and has threatened to sue to try to block the order before even learning its contents.

We won't fully know the contents until tomorrow, but what the White House has released is much, much, much less than what was presented back in February. NBC reporter Kelly O'Donnell got a briefing at the White House with the basics of the order, which will be presented tomorrow. The summary:

  • It is the policy of the administration "To protect and vigorously promote religious liberty"
  • Calls on the IRS to show "maximum discretion" in the enforcement of the Johnson Amendment, which limits the power of religious leaders (and many charity groups) from endorsing political candidates
  • Calls for "regulatory relief" for businesses and employers who have religious objections to being required to fund birth control or preventative services.

And that's it. There are no special protections being extended to those who oppose gay marriage or recognizing transgender people. That first item, though, is very vague in the summary. It could end up meaning very little, but we'll have to see what the actual order says tomorrow.




Democrats Push for National Ban on LGBT Conversion Therapy

Tue, 02 May 2017 12:45:00 -0400

The Supreme Court has declined to consider a challenge to the constitutionality of a California law banning conversion therapy on minors. Conversion therapy involves the process of trying to change the sexual orientation of a person from gay or bisexual to heterosexual. Decades ago when people believed homosexuality was a form of mental illness, this therapy was considered normal. Now psychologists and psychiatrists know better, and have determined that homosexuality and bisexuality are normal variations of sexual orientation. Furthermore, professional mental health organizations like the American Psychological Association have determined that conversion therapy likely doesn't work and formally oppose its use. Starting earlier in the decade a handful of states like California began legislatively banning conversion therapy for minors. The laws have typically been crafted as though this were an occupational licensing and business fraud issue. They prohibit state-licensed mental health experts from offering services to change a teen or child's sexual orientation. Fundamentally, though, conversion therapy isn't a particular set of practices or processes. It is really an idea—that homosexuality can be cured. The idea may be discredited by professional therapy organizations, but there are people out there who believe otherwise, and their beliefs are frequently tied to their religions. So given that these laws essentially recast an idea as a type of consumer fraud, religious-minded supporters of conversion therapy have been challenging the laws as infringements on their freedom of speech and freedom of religion. They have been rebuffed, and Monday the Supreme Court rejected a challenge of California's law. The court previously turned away a challenge to New Jersey's ban in 2015. These laws are often written narrowly in scope and in whom they affect. The law prohibits offering conversion therapy to minors, not adults, which is intended to deal with concerns about consent and coercion. Historically, young gay teens have been pushed and even forced into treatment against their will. The laws focus on state-licensed treatment to try to emphasize this is an issue of occupational oversight for the benefit of consumers, not an attempt to censor speech or religion. Bans on conversion therapy, though, are fundamentally censorship of an idea, and there is a slippery slope and consequences that people with narrow interests in halting abusive treatment of gay and transgender teens simply do not grasp. This isn't a ban on a particular dangerous technique, like electroshock treatment, for example. It's a ban on anything—even just speech—coming from a licensed therapist that suggests homosexuality can be cured. It is dangerous to allow the government to control the classification of speech and to recast speech as something else just because commerce is involved. For example, some may defend the ban because it affects only minors who have limited abilities to consent or decide for themselves whether they want such treatment. Adults can seek out conversion therapy if they want. It doesn't matter if it doesn't work or may potentially harm them—they're adults and can decide for themselves. Except Rep. Ted Lieu (D-California) and 70 Democratic members of Congress want to take this choice away from adults as well. Lieu is once again trying to get federal legislation passed to classify conversion therapy as a form of consumer fraud and give the Federal Trade Commission (FTC) the authority to punish anybody who provides it in exchange for money. To be very clear, this federal law would not be confined to minors. It would affect even adults voluntarily seeking conversion therapy. Lieu's law would forbid advertising or offering any form of conversion therapy that claimed to c[...]



Now That Gorsuch Is Seated, Will Supreme Court Take Up Gay Wedding Cake Case?

Mon, 17 Apr 2017 13:55:00 -0400

Today is newly seated Supreme Court Justice Neil Gorsuch's first day at the office hearing cases. He is apparently not going to be a quiet, Clarence Thomas-style justice and asked several questions during the first case before the court. Before this morning's case—which is a procedurally-oriented matter about the processes required appeal federal work discrimination complaints—the Supreme Court released its list of orders from last week's conference and decided not to take any new cases as yet. Gorsuch did not participate in this last conference but will for the next one. This matters because the Supreme Court has repeatedly declined to make a decision whether to take a high-profile case about businesses declining to serve gay weddings and has been bumping it to future conferences since last December. It rescheduled the case yet again this morning. That case is Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. This is a case about wedding cakes, gay marriage, and whether businesses can decline to provide their goods and services on the basis of religious beliefs. Jack Phillips, owners of Masterpiece Cakeshop in Lakewood, Colorado, declined (all the way back in 2013) to bake a wedding cake for a gay couple's wedding. This decision ran him afoul of Colorado's public accommodation laws, which forbid discrimination on the basis of sexual orientation. Phillips' response, as we have seen in many of these cases, is that he's not refusing to serve gay people, but he has religious objections to gay marriage and sees being obligated to make a wedding cake as being compelled to put his stamp of approval on it. Courts across the country have disagreed with Phillips and other businesses that serve weddings, like florists and photographers. Courts have thus far declined to accept the argument that refusing to serve gay weddings is somehow different from refusing to serve gay people. Furthermore courts have declined to accept the claim that floral arrangements or wedding cakes are a form of protected expression and that compliance with law compels speech or forces people to compromise their religious beliefs. That the Supreme Court kept pushing back a decision on whether to take this case until now is significant because they've already previously rejected to hear a similar fight. A photographer in New Mexico tried to get the court in 2014 to hear their case where the state told them they couldn't refuse to provide their services for a gay couple's wedding. The photography company, like Masterpiece Cakeshop, lost their challenge to the law, and the Supreme Court declined to hear the case. Now, three years later, the court appears to be delaying a decision at least until Gorsuch has been seated. There haven't been any cases where higher courts have accepted the arguments of the religious shop owners, so there's no "split" that requires the Supreme Court to resolve. Most recently, a florist in Washington State lost her challenge just like the bakery and photographer had before her. It's possibly significant that the Supreme Court didn't again simply refuse to certify a case that's very similar to one they've rejected before. Damon Root has carefully analyzed what Gorsuch is likely to be bringing to the court here. On Wednesday, the Supreme Court will be hearing a case connected to the boundaries of separation between church and state. The question at hand is whether it's constitutional for Missouri to withhold grants from a state program funding playground equipment from religious schools. Missouri's state constitution forbids it; the religious schools say this counts as religiously motivated discrimination. The only real fundamental overlap here with the bakery case is the invocation of religious freedom, so be wary of readi[...]



Federal Court Ruling Forbidding Antigay Job Discrimination Potentially a Very Big Deal

Wed, 05 Apr 2017 12:05:00 -0400

Discrimination on the basis of sexual orientation counts as discrimination on the basis of sex and therefore is already prohibited under relevant federal laws. That's the meat of the ruling released late yesterday by the U.S. Court of Appeals for the 7th Circuit, which covers Indiana, Illinois, and Wisconsin. The 8-3 ruling has huge political and legal consequences. The court specifically determined that Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex, also bars discrimination on the basis of sexual orientation. So now, suddenly, without passing any new laws, we have a new protected class under federal law. Mind you, the court doesn't see this as a new federal class, or at least the majority doesn't. The case revolved around a woman suing Ivy Tech Community College in Indiana claiming that she had been discriminated against and denied teaching positions on the basis of her sexual orientation. Sexual orientation is notably not covered under Title VII and lower courts had tossed her case out for that reason. But the full court determined that even though sexual orientation does not have special separate protection under federal law, it is nevertheless covered under bans on sex discrimination. One of the arguments the court found compelling was that if you changed the plaintiff's sex to male and changed nothing else about her life, the discrimination would not have happened. She would be a man married to a woman—a heterosexual—and would not have been denied employment because of her relationship. Therefore, discrimination on the basis of her sex is indicated, not just her orientation. Furthermore, the Supreme Court has previously established a precedent that discrimination on the basis of whether a person conforms (or not) to a gender stereotype counts as sex discrimination. That precedent is also brought to bear in this case (and has been invoked in other cases of discrimination on the basis of sexual orientation and gender identity as well): Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel describes the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively's claim is no different from the claims brought by women who were rejected for jobs from traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man). The majority ruling is fundamentally focused on the idea that court decisions over time have filled out the concept of what certain types of discrimination mean in real practice beyond just the basic terms of "sex" or "race" or any other protected characteristic. Discriminating against a woman because she's pregnant counts as sex discrimination. Discriminating against a person for being in an interracial marriage counts as discrimination on the basis of race. Therefore, their logic is that discriminating against a person for being a relationship with somebody of the same sex is discrimination on the basis of sex. Such a ruling may also then bring into play a lively debate over the limits of who much leeway judges should have to determine the boundaries of a law and how much they should be bound to the original intent of the law's creators. That's a diplomatic way of saying that there's going to be a lot of discussion a[...]



No, LGBT Rights Are Not and Should Not Be Dependent on Census Questions

Fri, 31 Mar 2017 12:45:00 -0400

This week in ginned-up Donald Trump administration outrage that distracts from actual issues: The Census will continue to not ask questions that they haven't been asking about LGBT people. This in some quarters has been presented as some sort of LGBT "erasure." It's not. At least when activists within the LGBT and progressive community freaked out about the possibility of an anti-gay executive order coming from President Donald Trump's administration, there was actual documentation. It turned out that Trump was not interested in signing such an executive order and it never came to be. But at least there was smoke to be concerned about if not an actual fire. Such is not the case with this week's LGBT anti-Trump outrage, which turns out to fundamentally be less about gay and transgender rights and more about organizations who want a slice of the great federal spending pie. To explain: The U.S. Census put out a proposal earlier in the week for questions it may ask during the 2020 census. Sexual orientation and gender identity were among the potential discussion topics. This was not something the Census had asked previously, which you know if you've participated in a census, ever. Then, the Census quickly explained that it had not intended to include the questions about sexual orientation and gender identity this time and withdrew the topics. So the Census, which had never asked people if they were LGBT before, is not planning to ask in the 2020 census either. Cue the outrage. The first headline I saw came from Out Magazine, a top gay-targeted publication. The headline read "Trump Administration Omits LGBTQ People from the 2020 Census." My initial reaction was "Woo hoo! I don't have to participate in the census!" But even before reading I suspected that wasn't what the story actually meant. The Trump administration is not omitting LGBT people from the census, and a writer actually analyzing how the announcement played out notes that the Trump administration might not have even played any role in the consideration of the questions at all. Even Snopes has gotten into the act with an explainer. What actually happened is that the National LGBTQ Task Force, an activist group with an open, stated agenda of having these questions added to the census, put out a press release declaring their unhappiness in seeing the questions get deleted. I don't use "agenda" as a negative here, and I don't necessarily see an issue with the Census Bureau asking people their orientations for demographic purposes, as long as it's made very, very clear that answers are completely voluntary. But there is a deliberately misplaced outrage here that wants to trick LGBT people into thinking that their rights and equal protection under the law is dependent on whether the federal government knows that they're gay or transgender. This is a seriously unsettling proposition. Here's a quote from Meghan Maury, criminal and economic justice project director of the National LGBTQ Task Force: "Today, the Trump Administration has taken yet another step to deny LGBTQ people freedom, justice, and equity, by choosing to exclude us from the 2020 Census and American Community Survey. LGBTQ people are not counted on the Census—no data is collected on sexual orientation or gender identity. Information from these surveys helps the government to enforce federal laws like the Violence Against Women Act and the Fair Housing Act and to determine how to allocate resources like housing supports and food stamps. If the government doesn't know how many LGBTQ people live in a community, how can it do its job to ensure we're getting fair and adequate access to the rights, protections and services we need?" What does demographic inclu[...]



Florists Join Bakers, Photographers in Court Ruling Ordering Them to Serve Gay Weddings

Fri, 17 Feb 2017 13:30:00 -0500

Florists—at least those in Washington State—can be forced to provide their goods and services for gay weddings. That was the unanimous decision from the state's supreme court handed down yesterday. The high-profile case, which had been winding through the courts for a while, pitted Baronnelle Stutzman, owner of Arlene's Flowers in Richland, against a gay couple who had come to her seeking her flowers for their wedding. She declined, citing her religious opposition to recognizing same-sex marriage. As had happened in other cases involving bakers and wedding venues, this decision put Stutzman on a collision course with the state's public accommodation antidiscrimination laws. Washington forbids discrimination on the basis of sexual orientation. Stutzman's argument was that she wasn't discriminating on the basis of the men being gay but rather refusing to participate in the wedding (which wasn't even legally recognized by the state when they started planning it in 2013). She argued that government mandating her participation by requiring her to provide flowers violated her constitutional rights to free speech, free exercise, and free association. The court roundly rejected all of her claims. The decision noted courts had previously rejected claims that attempted to separate "status" from "conduct" in similar ways, that, for example, discriminating against somebody who is pregnant falls under sex discrimination. As for her attempt to invoke her religious freedoms, they noted that the Supreme Court has set the precedent that "that individuals who engage in commerce necessarily accept some limitations on their conduct as a result." As for her free speech claim, the court has shared the position that we've seen in similar cases: They say Requiring Stutzman to prepare flowers for a same-sex marriage is not actually compelling her to endorse said marriages. This is very similar to how courts have ruled on wedding cakes. They have declined to accept the argument that the creation of a wedding cake is in and of itself expressive speech, but a baker does have the freedom to reject orders to pass along a particular textual message. (I explained the almost comically absurd complexity of this line of legal reasoning here years ago). Perhaps even a little more concerning, even if they did accept floral arranging as a form of expressive speech, it still might not have changed their ruling. In a similar case in New Mexico, a photographer lost a fight to refuse to shoot a gay wedding. Pretty much everybody understands that photography is expressive speech. But this majority decision agreed with the New Mexico court's decision, which concluded, "[W]hile photography may be expressive, the operation of a photography business is not." That is the kind of logic that can end up in all sorts of bad places: "While the publication of a newspaper may be expressive, the operation of a media business is not." The operation of a business is indeed expressive. It remains deeply frustrating to see the courts (and the American Civil Liberties Union) continue to sometimes cling to an idea that people lose some of their freedoms simply by engaging in commerce, which is itself a type of freedom. The Cato Institute submitted an amicus brief defending the florist's right to say no to the couple as a First Amendment issue. Cato (like Reason) has long supported legal recognition for same-sex couples. That's not the issue here; it's a matter of free speech (or compelled speech, in this situation). The Alliance Defending Freedom, which represented the shop (and was just designated a "hate group" by the Southern Poverty Law Center) is promising to try to get the case before the U.S. Su[...]