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



Published: Tue, 17 Oct 2017 00:00:00 -0400

Last Build Date: Tue, 17 Oct 2017 22:13:59 -0400

 



Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody

Tue, 10 Oct 2017 12:50:00 -0400

A gay coffee shop owner in Seattle is getting viral attention for loudly ejecting a group of aggressive anti-abortion Christian activists from his business. Members of Abolish Human Abortion had been handing out rather vivid posters outside the shop that seem to link gay acceptance to the prevalence of abortion. They then came inside Bedlam Coffee and received service—until shop owner Ben Borgman angrily threw them out, declaring their views and their posters offensive. Watch his profanity-laced tirade below: src="https://www.youtube.com/embed/FRUJmGzV9Ko" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0"> It's very easy to watch Borgman's rant and decide that, no, his shop shouldn't have to play host to a group of people who were just outside handing out fliers that he found offensive and that he felt attacked him personally. It's also easy to watch it and immediately think about the upcoming Supreme Court case about whether the government can force a baker to prepare wedding cakes for gay couples. And some, like the legal scholar Jonathan Turley, are doing exactly that. If a coffee shop owner doesn't want to serve a group whose positions he finds disagreeable and offensive, is that subtantially different from a baker refusing to do work for a same-sex marriage he finds offensive? Washington State's public accommodation laws prohibit discrimination on the basis of "creed," so Borgman cannot simply boot people out of his coffee shop for having Christian religious beliefs. But over at The Stranger, a Seattle alt-weekly, Katie Herzog argues that this case isn't religious discrimination but a disagreement about political positions: Not believing that woman should have autonomy over their own bodies is not actually a protected class in America, much like...gays. Looks like these folks have more in common than they thought. She's saying that Borgman isn't kicking them out because they're Christians, which would violate the state's laws; he's kicking them out because he finds their extreme anti-abortion positions offensive. The fact that these positions are informed by their religious beliefs is not relevant. What's fascinating about that argument is how it so closely tracks the response from bakers and florists who don't want to offer their services for gay weddings. They say that they're not discriminating against gay people: Gay people are more than welcome to come into their shops and buy cakes and flowers. Rather, they object to the concept of gay marriage and to the position that it should be treated similarly to heterosexual marriage, and they do not want to be forced to produce goods that suggest that they support it. By trying to come up with a justification as to why Borgman should allowed to boot these guys from his coffee shop without running afoul of state antidiscrimination laws, Herzog is essentially making the same argument: that this isn't discrimination against people for their identities, but discrimination against certain views. That's the sort of weird semantic contortions that come when you try to police the circumstances in which people can decline to do business with someone else. People want to preserve their own right to refuse to associate with others while limiting the others' ability to shun them. Using government authority to do this gives people an incentive to look for ways to punish people with whom you have disagreements. But it's more responsible, ethical, and most of all mature to suggest that both the coffee shop owner and the baker should be able to decide for themselves when they'll extend their hospitality. With neither the coffee shop nor the baker does a refusal to do business with these customers cause real, recognizable harms that justify government intervention.[...]



Left Loses its Mind Over Jeff Sessions Memo That Brazenly Restates Existing Law

Fri, 06 Oct 2017 18:40:00 -0400

The Human Rights Campaign (HRC) is angrily condemning a memo released today by Attorney General Jeff Sessions that it describes as "an all-out assault on LGBTQ people" creating "a sweeping 'license to discriminate'" in furtherance of President Donald Trump's "cynical and hateful agenda." The memo does this via provocative language such as "freedom of religion is a fundamental right of paramount importance" and "government may not interfere with the autonomy of a religious organization" by, for example, forcing an Orthodox yeshiva to accept female rabbinical students. Don't get me wrong—we're not exactly fans of Sessions here at Reason. But today's memo shouldn't make your list of reasons to dislike the man, who is much more fittingly criticized for being a lover of asset forfeiture and a drug warrior extraordinaire. Haters of the religious liberty memo seem to believe (or, perhaps more accurately, want you to believe) that it establishes a new right for businesses and government agencies to turn people away on the basis of sexual orientation or gender identity. They should be comforted, then, by the revelation that virtually everything in the document is merely a restating of existing law and Supreme Court precedent. For example, the notion that government doesn't get to second-guess the "reasonableness" of something a person believes her faith requires of her goes back at least to the 1981 Thomas v. Review Board decision (in which a majority of the Court held that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection") and mirrors James Madison's famous assertion that "the religion then of every man must be left to the conviction and conscience of every man." The principle that Americans don't forfeit their rights when they enter into the public square was recently upheld in 2014's Hobby Lobby ruling, while the principle that government can't dictate a church's hiring practices (at least when it comes to "ministerial" positions) was unanimously reaffirmed in 2012's Hosanna-Tabor. The tenet that a law has to meet "strict scrutiny" if it substantially burdens someone's exercise of faith is lifted verbatim from the 1993 Religious Freedom Restoration Act that was signed with great fanfare by then–President Bill Clinton. The bullet point noting that freedom of religion applies to organizations as well as to individuals might seem radical, but it's literally rooted in Title 1, Chapter 1, Section 1 of the U.S. Code, which holds that "the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies." Employers have been prohibited from discriminating against workers or job applicants on the basis of religion since the passage of the Civil Rights Act of 1964, so that's not new either. (Although I've argued against that policy as an infringement of business owners' economic liberty and freedom of conscience, it is the law of the land as of now.) As for the idea that Washington cannot treat a religious organization differently than it does a secular one, that emerged in response to a series of attempts from the 19th century—motivated, it's widely accepted, by anti-Catholic animus—to disqualify faith-based groups from receiving government grant money and other public benefits. Such laws, known as "Blaine amendments," are on the books in a number of states, but the federal effort to pass one failed. More recently, Presidents George W. Bush and Barack Obama have worked to "level the playing field," in the White House's language, ensuring equal access to grants and benefits regardless of an organization's religious affiliation, so long as public funds aren't used for activities like worship and proselytization. Some states and localities have, in the last few years, enacted legislation making it illegal for a housing or business proprietor to turn people away on the basis of sexual orientation or gender identity. It is these efforts that represen[...]



Sessions Releases Guidance on Protecting Religious Freedom; LGBT Groups Fear ‘Permission to Discriminate’

Fri, 06 Oct 2017 16:45:00 -0400

Today, as President Donald Trump's administration is announcing that employers with religious concerns will have an easier time getting exemptions from the birth control mandate, Attorney General Jeff Sessions has released a lengthy memo describing the Justice Department's approach to religious freedom. The timing is most likely not a coincidence. Sessions' 25-page memo discusses concerns about when the federal government may or may not impose mandates that violate the religious beliefs of businesses, and one of his points is bluntly titled "Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with government." It references the Hobby Lobby Supreme Court case rejecting contraception mandates. The memo itself does not specifically reference gay or transgender people, but given that its instructions are about how Department of Justice agencies should take religious freedom issues in mind when enforcing laws, contracting, and distributing grants, there was an immediate concern from LGBT activist groups and allies that this was the "permission to discriminate" they've suspected the administration had been planning all along, but had not yet come. Chad Griffin, president of the Human Rights Campaign, certainly didn't hold back in blasting the potential impact on gay and transgender people: "This blatant attempt to further Donald Trump's cynical and hateful agenda will enable systematic, government-wide discrimination that will have a devastating impact on LGBTQ people and their families. Donald Trump and Mike Pence have proven they will stop at nothing to target the LGBTQ community and drag our nation backwards. We will fight them every step of the way." It's actually not terribly clear, though, that this memo makes much of a difference in how the current Justice Department will tackle LGBT discrimination issues because of how it is already tackling LGBT issues. Understand, the Justice Department under Sessions is already reversing many of the positions it held under President Barack Obama. The Justice Department is now taking the position that federal civil rights laws do not include gay and transgender discrimination under the aegis of sex-based discrimination. The Trump administration has already retracted the guidance from the Obama administration mandating that schools accommodate transgender students in use of public restrooms and locker rooms. And the Justice Department in an upcoming Supreme Court case has taken the side of a baker in Colorado who declined to make a wedding cake for a same-sex couple (Disclosure: so has the Reason Foundation). The Human Rights Campaign worries about some additional outcomes, though: That government officials themselves will be able to refuse to do their jobs when it comes to dealing with gay or transgender people (see: Kim Davis); and that federal contractors and faith-based organizations like hospitals would be able to discriminate against LGBT people and be able to refuse to provide services even in a crisis. So forget the wedding cakes: They're concerned about people getting turned away from hospitals or homeless shelters. I don't want to dismiss the possibility of that happening, but it's important to note that religious freedom laws like the Religious Freedom Restoration Act do not just give blanket permission for people to violate the law by wrapping themselves in some holy scripture. Sessions knows that, and part of his memo explains what government officials have to show if they're going to try to overcome a person's religious objections: So if the government can make a case that it has a compelling interest (like protecting public safety) and that it's taking the least restrictive means to do so it can require people to obey a law that hospitals not turn away gay or transgender people, for example. The unanswerable concern, though, is whether a Sessions-run Justice Department actually would act in cases of emergencies or take steps to make [...]



Legal Gay Marriages Begin in Germany; Australia Gets Mired in a Messy Referendum

Mon, 02 Oct 2017 13:50:00 -0400

On Sunday, Germany joined 14 other European countries (and the United States) in officially recognizing gay marriages. As has been typical in a country when the change starts, the first couple to be wed legally in the nation received a lot of press coverage—in this case, Bodo Mende, 60, and Karl Kreile, 69. Germany had a domestic civil partnership system in place since 2001, but it did not provide all the same legal rights in the country as a full marriage (in particular, the right to adopt). Why did it take so long for Germany to get on board? Chancellor Angela Merkel and her party opposed gay marriage recognition, and given party politics, that meant members of her party, the Christian Democratic Union, would be expected to vote no in any parliamentary effort to extend legal recognition to gay couples. That all changed in June. Part of the reason was purely political: Merkel calculated her party would need to maintain a coalition with the center-left Social Democrats after September's election, and the Social Democrats demanded support for same-sex marriage recognition. (The actual results of the election complicate Merkel's plans.) But her shift was also partly due to her own realization that homosexuality was not, in fact, an indication that a person was not capable of forming a stable, loving relationship suitable for children, as she discovered from communicating with a lesbian couple who had fostered eight children. In June, Merkel declared she was open to allowing her party members to have a "vote of conscience," meaning lawmakers would be allowed to decide for themselves whether to legally recognize same-sex marriages and would not be ordered to toe the party line. Days later, Germany's parliament did just that and voted to legalize recognition, starting October 1. City halls even opened on Sunday to marry off couples. Meanwhile, down under in Australia, the road to legal recognition for same-sex couples remains very, very messy. Gay marriage supporters, including members of the Liberal Democratic Party—a.k.a. the libertarians—have been pushing lawmakers to change the law to recognize such unions. But Australian supporters have had the same problem as Germany's supporters: Part of the ruling coalition has a formal stance against recognizing gay marriages and would not allow a "conscience vote" so that party members could decide for themselves. So even though Australian polls show the public widely supports same-sex marriage, they did not have the votes in the parliament. What Australia's ruling party has done instead is pushed it all into a nonbinding national vote through the mail. Australian citizens have all been sent a survey form and asked to mail it back indicating whether they thing gay marriages should be legally recognized. They have until November 7 to return their ballots. Because the vote is nonbinding, Parliament will have to act to legalize gay marriage, even if the majority votes yes. So fundamentally, the purpose of the vote is to give lawmakers political cover either way. The referendum has resulted in a massive media blitz from both sides to convince voters to support or oppose marriage recognition. Every Australian celebrity people might have heard of outside the country has declared support for a "yes" vote. This weekend saw the strategic deployment of Macklemore at the national rugby finals (essentially the country's Super Bowl) with a performance of one of only two songs anybody will ever remember about him, "Same Love." ("Thrift Shop" is the other one.) In the event you might have forgotten who Macklemore is, watch below: If you missed #Macklemore performing Same Love at the #NRL Grand Final here is the video pic.twitter.com/cA16R4gSMn— Justin Stevens (@_JustinStevens_) October 1, 2017 How should liberty-minded people feel about such a vote? While I've generally been supportive of ballot initiatives bypassing stubborn legislatures to improve people's lives and reduce the government's control over[...]



Feud With Amber Tamblyn Shows James Woods' Confusion About Age-of-Consent Laws

Mon, 18 Sep 2017 13:35:00 -0400

Last week's Twitter feud between actors James Woods and Amber Tamblyn, which gave birth to an op-ed piece by Tamblyn in yesterday's New York Times, revealed some telling misconceptions about age-of-consent laws. Woods, despite his history of dating very young women, does not seem to understand that such laws vary from one jurisdiction to another. The feud started when Woods suggested that the film Call Me by Your Name, about a gay relationship between a 24-year-old and a 17-year-old, is helping to "quietly chip away the last barriers of decency." His tweet used the hashtag #NAMBLA, referring to the North American Man/Boy Love Association, which opposes age-of-consent laws. "Didn't you date a 19 year old when you were 60.......?" replied Armie Hammer, costar of the movie. Woods was 59 when he began dating Ashley Madison, who was 19 at the time. At 66 he began dating 20-year-old Kristen Bauguess. Here is where Tamblyn chimed in. "James Woods tried to pick me and my friend up at a restaurant once," she tweeted. "He wanted to take us to Vegas. 'I'm 16' I said. 'Even better' he said." Picking up on that anecdote, a Twitter user named Amanda Kendall asked Woods, "What makes a 24yo/17yo gay relationship inherently indecent but skeevy old guys trying to pick up a pair of 16 year old girls is okay?" Woods replied, "The first is illegal. The second is a lie." I don't know whether the incident Tamblyn describes actually happened. In her op-ed piece, which cites Woods' response to her claim as an example of the disbelief faced by victims of sexual harassment, she argues that she has no plausible motivation to make such a thing up. But Woods is clearly wrong when he definitively states that a sexual relationship between a 24-year-old and a 17-year-old "is illegal." To begin with, the age of consent in Italy, the setting of Call Me by Your Name, is 14. In this country, the age of consent is 16 or 17 in 39 states, so the relationship that Woods deemed indecent would be legal in all of those places as well. By contrast, the age of consent in California is 18, and there is no close-in-age exemption. In other words, any sex involving someone younger than 18 is a crime, even if the other person is also younger than 18. The only exception is for married couples. In California, which has no minimum age for marriage, minors can marry with parental consent and judicial approval. That policy is pretty puzzling, given that extricating oneself from a marriage is considerably more difficult than ending a sexual relationship. California law assumes that a 17-year-old is not ready for sex but allows that a 13-year-old might be ready for marriage (including sex). Woods not only assumes every jurisdiction has an age-of-consent law like California's; he erroneously equates legality with decency, a much more subjective concept. Many people probably would find the seven-year age gap between the characters in Call Me by Your Name (41 percent of the younger character's age) less objectionable than the 40-year gap between Woods and Madison (200 percent of her age) or the 46-year gap between him and Bauguess (230 percent of her age). If the concern is an imbalance of power, it is not at all clear why the fictional relationship is more disturbing than the real-life ones. Suppose California raised its age of consent for sex from 18 to 21. Would that retroactively render Woods' romantic relationships indecent or unethical? Or would he concede that such laws are inherently arbitrary, that reasonable people can and do disagree about what the cutoff should be, and that the goal should be ensuring genuine consent, as opposed to preventing outrage among those who think a particular pairing is icky?[...]



Justice Department Takes Baker's Side in Gay Wedding Cake Case Before Supreme Court

Thu, 07 Sep 2017 18:45:00 -0400

The Department of Justice under President Donald Trump is taking the side of a Colorado baker who declined to make a cake for a gay couple. The baker, Jack Phillips of Masterpiece Bakeshop in Lakewood, Colorado, is the plaintiff in a case scheduled to be heard by the Supreme Court this fall. The state's civil rights commission ruled that Phillips violated Colorado's public accommodations law and engaged in discrimination for refusing to bake a wedding cake for a same-sex couple. Phillips has argued that his religious beliefs oppose same-sex marriage recognition. Forcing him to make a wedding cake for a gay couple was compelling him to participate in the couple's wedding and that the act of crafting a wedding cake—not merely just selling one—is expressive activity protected by the First Amendment. Trump's Justice Department agrees. In a filing with the Supreme Court today, the Justice Department argues that traditionally public accommodation laws had not in the past run afoul of the First Amendment because they were neutral to content and focused on conduct. A gas station couldn't refuse to sell fuel to a person because he or she is black, for example. But there's no message in the process of selling gas, so there's no compelled speech. Here, the Justice Department argues, the making of a wedding cake is an expressive activity, and the court needs to engage in heightened scrutiny of the First Amendment issues: A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion. Read the brief here. The Justice Department's argument is very narrow. It is not making a case for freedom of association, whereupon businesses would have a general right to decide with whom to do business. The filing is very specific that in this case and in similar cases involving expressive activity (photography, floral arrangements), the First Amendment of the business owners are violated if they're compelled by the law to participate by producing goods or offering their services. And that's really what the Supreme Court will be considering in this case. Is the act of baking a cake a form of expressive activity and therefore protected by the First Amendment? We'll get a sense of what the justices think when they hear the case later this year. The Reason Foundation (the non-profit think-tank that produces this site and publishes Reason magazine) is in agreement with the Justice Department in this case. They've submitted a brief asking the Supreme Court to consolidate this case with a petition by a florist in Washington State who is also being punished for declining to provide arrangements for a same-sex wedding. Read about that case here. Read the new, additional brief asking the Court to find in the bakery's favor here.[...]



Brickbat: Stay in the Closet

Thu, 24 Aug 2017 04:00:00 -0400

(image) When Joey Slivinski and Thomas Swartz, two openly gay seniors at Missouri's Kearney High School, got their yearbooks, they found only blank space beneath their names. School officials did not use the quotes they have provided—"Of course I dress well. I didn't spend all that time in the closet for nothing" and "If 'Harry Potter' taught us anything, it's that no one should have to live in the closet"—saying some might find them offensive.




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 av[...]



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 b[...]



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

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 [...]