LGBT issues

  • 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.    

  • February 9, 2015

    by Caroline Cox

    At Salon, Jenny Kutner reports that the Supreme Court has denied a stay in the Alabama same-sex marriage case.

    Bill Chappell writes for NPR that Alabama courts have begun to issue marriage licenses to same-sex couples despite comments from Alabama Chief Justice Roy Moore that courts should ignore the federal court ruling on same-sex marriage.

    Louise Radnofsky, Jess Bravin, and Brent Kendall write in The Wall Street Journal that there are now questions about the standing of the lead plaintiff in King v. Burwell.

    The Constitutional Accountability Center provides an overview of the King v. Burwell amicus briefs that support the government in the case.

    Joseph Shapiro of NPR reports that civil rights attorneys are suing Ferguson over “debtors' prisons” that jail people when the fail to pay fines for minor offenses.

    In The Atlantic, Conor Friedersdorf discusses how federalism has helped same-sex marriage spread throughout the country.