LGBT issues

  • March 31, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination against gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.

  • March 29, 2015
    Guest Post

    by Steve Sanders. Professor Sanders teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.

    Technically, there was little if anything in what Gov. Mike Pence said about Indiana’s Religious Freedom Restoration Act in his ABC News interview Sunday morning that was factually false.  But much of what he said was materially misleading, due to his desperation to stay on message and to obfuscate.  To understand this crisis for the Pence administration and Indiana, it’s necessary to separate the law of the RIFRA from its politics. 

    Governor Pence (pictured) was correct that there has been a lot of misinformation about the RIFRA.  The blame lies with both its opponents and its proponents, as well as the media.  Contrary to what many progressive opponents have asserted, explicitly or implicitly, the bill does not create an immediate license to freely discriminate against gays and lesbians.  Nothing in the bill expressly refers to gays or civil rights laws.  And so some opponents of the law have done a disservice to reasoned and accurate public discourse.

    How does the law actually work?  Keep in mind that given the toxic politics that now surround the measure, no large, PR-sensitive business enterprise in its right mind would use it to turn away gay customers or employees.  But imagine a small business owner does so, claiming that associating with gay people violates his religious beliefs. 

    First, the affected victim of discrimination would need to file a civil rights complaint – assuming that he or she lives in one of the dozen or so Indiana cities, such as Indianapolis, where civil rights ordinances actually protect sexual orientation.  (In the rest of the state, such discrimination is perfectly legal right now, and Pence wants to do nothing to change that.)

    As the next step, the business owner would go to court, invoking the RIFRA and seeking an exemption from compliance with the civil rights ordinance.  This is the RIFRA’s central purpose: to force the government to convince a court that a challenged law – any challenged law – is “narrowly tailored” to serve a “compelling” government interest (as opposed to the First Amendment baseline of a rational relationship to a legitimate government interest) when the law is alleged to infringe someone’s exercise of religion.  My colleague Daniel Conkle, an expert on RIFRAs, believes it is likely that a gay non-discrimination ordinance would pass this test, and I respect his judgment.  And so in the end, the religious business owner might not actually get a pass from complying with the civil rights ordinance. 

    So why all the fuss?  Setting aside the problem that some religious business owners will now think they have a green light to discriminate, the real problem with Indiana’s RIFRA has been less about its substance than its politics – specifically, the motivations of some of its most ardent proponents. 

  • March 23, 2015
    Guest Post

    by Suja A. Thomas, Professor of Law at the University of Illinois College of Law; author of The Other Branch: Restoring the Jury’s Role in the American Constitution (forthcoming Cambridge University Press).  This post is based on her essay, Text-Bound Originalism (and Why Originalism Does Not Strictly Govern Same Sex Marriage).

    Many assume originalism has an important place in the debate about whether states can prohibit same sex marriage.  As the argument goes, the original public meaning of the Equal Protection Clause was the protection of African-Americans, so there is no constitutional barrier to states' prohibition of same sex marriage.  In deciding that states could prohibit same sex marriage, a panel of the U.S. Court of Appeals for the Sixth Circuit recognized the relevance of this originalist interpretation of the Equal Protection Clause along with other arguments for permitting the prohibition of same sex marriage—all of which the Supreme Court will soon consider.

    But does originalism have a significant place in the interpretation of the Equal Protection Clause and thus in the same sex marriage decision?  Those advocating the use of originalism believe that originalism must strictly govern the interpretation of the Constitution.  Thus far in arguing for this originalist methodology, however, they have not acknowledged that the text of the Constitution explicitly requires the application of originalism for the interpretation of one provision in the Constitution—the Seventh Amendment.  In ignoring this textual inclusion of originalism and corresponding textual exclusion of originalism elsewhere, originalists have not shown why originalism should strictly govern other parts of the Constitution.

  • February 16, 2015
    Guest Post

    by Harvey Fiser, Associate Professor of Business Law at Millsaps College

    All eyes are once again focused on our southern states and their leaders for again defying federal court orders.  This time, as last, is about violating the constitutional rights of its citizens.  The latest in the long line of outspoken obstructionists is Alabama Supreme Court Justice Roy Moore.  Moore, infamous for once being removed from his position on the Alabama Supreme Court for defying a federal court order to remove a 2.6-ton monument of the Ten Commandments from the rotunda of Alabama’s Supreme Court building, is the lead mouth-piece on the current issue of same-sex marriage. 

    On Monday, February 9, after a denial of a stay request by both the Eleventh Circuit and the United States Supreme Court, United States District Court Judge Granade’s order took effect.  The order declared Alabama’s bans on same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  On that Monday, same-sex couples were allowed the same marriage rights as all other couples in Alabama – until they weren’t. 

    Perhaps forgetting the commandment, “remember the Sabbath and keep it holy (Exodus 20:8),” Justice Moore, on Sunday, February 8, set aside any Sabbath work restrictions and issued an Administrative Order prohibiting all probate judges in Alabama from granting marriage licenses to same-sex couples despite the federal court order.  Moore supported his order with the technical fact that neither the United States Supreme Court nor the Supreme Court of Alabama had ruled on the Alabama laws – never mentioning the denial of a stay by the U.S. Court of Appeals for the Eleventh Circuit five days prior.  The U.S. Supreme Court did act the next day, and, on Monday, February 9, the path was cleared for same-sex couples to marry in Alabama again.  Surely this satisfied Moore’s Sunday declaration.  Except, it didn’t.

  • February 11, 2015

    by Paul Guequierre

    Look almost anywhere and you’ll see the progress the LGBT community has made in its march toward equality. To the casual observer, victory may look to be in arm’s reach. Eleven years ago, Massachusetts became the first state to usher in marriage equality and now, with the Supreme Court denying Alabama’s request for a stay of a lower court’s ruling finding the state’s marriage ban unconstitutional, marriage equality is the law of the land in 37 states and the District of Columbia. And on top of that, the Supreme Court has finally agreed to take a marriage case this term, and we should know the fate of marriage equality in a few short months and many indicators point to victory. To some, the fight looks close to being over. Except that it’s not. Let’s take a look at Kansas for an example.

    This week Kansas’s Republican governor turned the clock back decades on fairness. Gov. Sam Brownback issued an executive order stripping anti-discrimination protections for LGBT state employees that former Gov. Kathleen Sebelius had put in place nearly a decade ago. Saying LGBT people should not be considered a protected class unless the legislature designates them so, Brownback has reopened the door to harassment and discrimination in the state workforce.

    If you’re surprised, you’re not alone. Polling commissioned by the Human Rights Campaign, the nation’s largest LGBT civil rights organization, found that a majority of Americans think discrimination protections for LGBT Americans are already federal law. The reality, however, is that  there is no federal law protecting gay and transgender Americans from discrimination in employment and only a handful of states have such protections. If that seems odd to you and you thought the fight for LGBT equality will be over this summer when the Supreme Court rules on marriage equality, think of this: in nearly half of the states a gay or lesbian couple will be able to obtain a marriage license and then be fired from their job for no other reason than being gay. And that’s not likely to change anytime soon.