LGBT issues

  • July 17, 2014

    by Paul Guequierre

    Fifty-four law professors from across the country, including several ACS members and contributors penned a letter to President Obama this week urging him not to cave under pressure from anti-equality conservatives by including religious exemption language in any executive order providing nondiscrimination guarantees for LGBT employees of federal contractors.

    The letter comes on the heels of the Supreme Court’s decision in Hobby Lobby, which gave closely held corporations the freedom to discriminate by invoking religious beliefs and not offering contraceptive care to female employees, despite the fact that such coverage is mandated under the Affordable Care Act. The law professors emphasize that the Supreme Court’s opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order, and that both actions were predicated on the Court’s belief that the government could fully realize its compelling goals of furthering women’s health and equality through other means.

    The signatories also note the Religious Freedom Restoration Act in no way affects the promulgation of an executive order that establishes the conditions under with taxpayer dollars can be expended to subsidize the work of a private organization and that the federal government is free to require that government contractors adhere to government standards.   

    Read the full letter here.

  • July 10, 2014

    by Paul Guequierre

    This afternoon Wisconsin Attorney General J.B. Van Hollen appealed a federal judge's ruling from last month striking down the state's ban on same-sex marriages, reports the Associated Press. The case now heads to the U.S. Court of Appeals for the Seventh Circuit.

    Van Hollen had until July 21 to file an appeal, but felt rushed in the wake of several recent marriage equality victories across the country. He said in a statement that the appeals court's decision to speed up the Indiana case led him to file the appeal sooner than his deadline.

    U.S. District Barbara Crab overturned Wisconsin’s ban on marriages by gay and lesbian couples in June. The ban, which was approved by voters in 2006, is now opposed by the majority of Wisconsin voters. A recent Marquette University Law School poll found 55 percent of registered voters statewide now favor allowing gay and lesbian couples to marry, while 37 percent oppose it and 6 percent say they do not know. Governor Scott Walker, a Republican with a national profile, has stayed largely quiet on the issue. Although once an ardent opponent of marriage equality, Walker has now said his position doesn't matter because the governor plays no role in changing the constitution. Walker does, however, support Van Hollen’s appeal.

    Although Van Hollen acknowledged asked Crab to immediately block her own decision, she did not stay her decision immediately, instead waiting a week to do so. In that week, more than 500 gay and lesbian couples wed in the Badger state.

    In 1982, Wisconsin became the first state in the country to enact a gay rights law, banning discrimination in employment and housing based on sexual orientation.

    LGBT rights advocates have celebrated a string of victories since last year’s landmark Supreme Court decisions striking down Section 3 of the Defense of Marriage Act (DOMA) and putting an end to California’s Prop. 8. Just this week Justice Samuel Alito, Jr. rejected a county official's bid to suspend a ruling that overturned Pennsylvania's same-sex marriage ban. Also this week, a District Court judge declared Colorado's ban on same-sex marriages unconstitutional and the Utah attorney general announced he would appeal a court decision in favor of marriage equality in the state to the U.S. Supreme Court.

  • July 10, 2014

    by Nicholas Alexiou

    Utah Attorney General Sean Reyes has decided not to see full en banc review of last month’s decision by the U.S. Court of Appeals for the Tenth Circuit which affirmed a trial court’s determination that Utah’s ban on same-sex marriage is unconstitutional. Instead, Marissa Lang at The Salt Lake Tribune reports that Utah will file a petition for a Writ of Certiorari to the U.S. Supreme Court.

    At Above the Law, Matt Kaiser discusses the recent acquittal of Rengan Rajaratnam and growing confusion in the area of insider trading law.

    Dahlia Lithwick argues at Slate that while the recently completed Supreme Court Term was uncontroversial for men, it was a disaster for women.

    Neil H. Buchanan explains why the majority decision in Burwell v. Hobby Lobby Stores, Inc. may actually turn out to be “bad for religion in America” at Dorf on Law.

  • July 1, 2014

    by Paul Guequierre

    As LGBT Americans continue on the path to equality, the community celebrated two major victories this week. Today, U.S. District Judge John G. Heyburn II ruled that same-sex couples have a right to marry in Kentucky, saying, "In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted."

    Heyburn ruled in February that Kentucky must recognize gay marriages performed in other states. Heyburn immediately stayed his ruling today.

    According the Louisville Courier-Journal, Heyburn rejected the only justification offered by lawyers for Kentucky Gov. Steve Beshear—that traditional marriages contribute to a stable birth rate and the state's long-term economic stability.

    "These arguments are not those of serious people," he said.

    Today’s victory for marriage equality is one in a string of many.  Just last week, U.S. District Judge Richard L. Young ruled Indiana’s ban on marriages by gay and lesbian couples unconstitutional and the U.S. Court of Appeals for the Tenth Circuit upheld an earlier ruling that Utah’s same-sex marriage ban is unconstitutional. The Utah ruling affects all states in the Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. And earlier in June, U.S. District Court Judge Barbara Crabb ruled Wisconsin’s marriage ban unconstitutional. Hundreds of marriages took place in the Badger state before Crabb stayed her ruling. Just a week before Crabb’s ruling, the U.S. Supreme Court refused to block marriages of same-sex couples in Oregon.

    In other equality-related news, yesterday at the White House LGBT Pride Reception, President Obama announced he would be issuing an executive order to protect transgender federal employees from workplace discrimination, according to the Human Rights Campaign. The executive order will expand upon an executive order from President Bill Clinton, which banned workplace discrimination among federal employees on the basis of sexual orientation.

  • June 30, 2014
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    Two things stand out to me about this morning’s 5-4 decision in Burwell v. Hobby Lobby Stores that the Religious Freedom Restoration Act (RFRA) grants “religious” for-profit corporations an exemption from regulations requiring businesses to include coverage for contraceptives in their health insurance plans:

    First, the majority opinion attempts to hold itself out as a limited, cautious one. A closer look, however, shows that it is no such thing.

    Second, even though Justice Kennedy joined the five-justice majority opinion, his separate concurring opinion indicates that he disagrees with the majority in important respects. In such circumstances, a Justice normally joins a colleague’s opinion only in part, at most. Justice Kennedy’s imprudent joinder of the majority’s entire opinion will likely lead to mischief and confusion in the lower courts.

    Applicability to for-profit corporations

    The majority’s analysis begins with the conclusion that RFRA protects the religious “beliefs” of for-profit corporations, even though it is quite doubtful that the senators and representatives who voted for RFRA expected it to extend that far.

    The majority attempts to “limit” its ruling on this issue by stating that it is addressing only closely-held for-profit corporations here, and that it is not deciding whether RFRA also covers publicly-traded corporations.  But a reading of the majority’s reasoning on this issue — including its explanation that the word “person,” as used in RFRA, is defined as covering all corporations by a law called “the Dictionary Act” — leaves no doubt that the same result will ensue in the case of publicly-traded entities.

    The majority’s real attempt to answer concerns about extending the coverage of RFRA to all for-profit entities is to say: “don’t worry about it,” it’s unlikely that a publicly-traded corporation will attempt to impose religious requirements on its employers because it probably won’t be able to agree internally on any particular religious belief. This should not be of comfort to employees.

    Perhaps smaller, minority religions will not be able to impose their religious views on employees through publicly-traded corporations. But there is no reason to be confident that the religious views held by the majority of persons wealthy enough to own stock, at least in a particular industry or field, won’t give rise to RFRA claims by large, publicly-traded entities. In other words, employees need only worry about being subjected to majority religious views, of the better-off.