Yet another in the sad volume of stories about what happens when we don’t protect our legal interests.
Result: Tragedy compounded by stress.
Yet another in the sad volume of stories about what happens when we don’t protect our legal interests.
Result: Tragedy compounded by stress.
Tomorrow, I’m to be the guest for the first full hour of the Dave Scott Show. It’s available, live at 1 pm EST and via podcast thereafter, at this web address: http://thedavescottshow.wordpress.com/
I’ll be talking about marriage equality, with an emphasis on the recent development in the Defense of Marriage Act cases, and probably lots more of interest to everyone, whether in the LGBT community or not: DADT repeal; the Employment Non-Discrimination Act, state and federal responses to bullying, and who knows what else.
Over at 365gay.com, you can find my just-published column tearing into Minnesota Gov. Tim Pawlenty for vetoing a bill that would simply have recognized the humanity of the LGBT citizens of his state, by allowing aggrieved partners to decide what’s to be done with their deceased spouses’ remains, and to have same basic right to call the defendant who caused the death to account (through a wrongful death suit, allowed to legally married, opposite-sex couples).
Then, this morning I read about the sentencing of the gay Malawi couple who had engaged in a formal commitment ceremony to fourteen years of hard labor. Here’s what a Presidential spokeswoman had to say:
Betsy Chirambo, an adviser to President Bingu wa Mutharika, expressed concern over calls by some activists for the West to withdraw aid to Malawi because of the case. Up to 40 percent of Malawi’s development budget comes from foreign donors.
“It is not our culture for a man to marry a man,” Chirambo said this week. “That is not even in our constitution. Some of these rights are not good for our culture.”
The men engaged in a commitment ceremony — they didn’t “marry,” because legally, they can’t.
I’d start by threatening to cut aid in half, immediately, unless the men are released. That would get their attention.
That’s not going to happen, though. Instead, the State Department issued this toothless condemnation:
The United States is deeply disappointed in [the] conviction of same-sex couple Tiwonge Chimbalanga and Steven Monjeza in Malawi. We view the criminalization of sexual orientation and gender identity as a step backward in the protection of human rights in Malawi. The government of Malawi must respect the human rights of all of its citizens. The United States views the decriminalization of sexual orientation and gender identity as integral to the protection of human rights in Malawi and elsewhere in the world. (emphasis added)
“The government of Malawi must respect the human rights of all of its citizens.” That statement sounds a bit hollow coming from a government that still hasn’t managed to protect its LGBT citizens from workplace discrimination. And it brought to mind Pawlenty’s unsaying of gay relationships — even in death, your relationship means nothing and won’t be recognized in any way.
I’m not equating fourteen years of hard labor to what the LGBT community experiences in the U.S., although being fired from one’s job just for being, say, a lesbian, is devastating enough. I am saying that our actions and our high-minded rhetoric are often, and sadly, at odds.
Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?
If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).
Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.
Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed. There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).
During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.
“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.
In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed, and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”
James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.
He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).
Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.
Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.
One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community. That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.
She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.
There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).
I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?
VA Governor Bob McDonnell (whose topsy-turvy actions on gay rights I’ve chronicled here) now says that there would be no need for a state law protecting the LGBT community against discrimination. Why not? According to this quote (h/t Joe.My.God), there’s no problem in need of a solution:
I don’t know that we need it based on the numbers that I’ve seen….There really isn’t any rampant discrimination on any basis in Virginia. If you’re going to have a law, it needs to actually address a real problem.
This is a very prosecutorial/attorney-general way of looking at the issue: We only see cases that are reported, brought, and litigated. There’s something to this approach. After all, discrimination laws have a cost (suits can be frivolous, and give bad employees an “out” for lousy work), so we at least want a real problem before we’re going to pass a law.
Unfortunately, the McDonnell approach is staggeringly limited and naive. First, by the logic of his statement, there should be no anti-discrimination laws on the books: If there’s no “rampant discrimination on any basis,” then we should repeal all of the laws, given the cost I mentioned above.
I doubt McDonnell would support such repeal efforts, though. Why? I can think of three reasons, all of which are likely at work here. First, he doesn’t really believe what he’s saying. Second, it may be that there’s no way to repeal laws banning discrimination based on sex, race, religion, etc., without ensuring a swift, forced political retirement. (Compare: anti-gay discrimination.) Third, he realizes that laws have an important symbolic, messaging effect.
Of course they do. And enacting a law protecting against sexual orientation discrimination would send a powerful, state-sponsored message that the state stands with its LGBT citizens (although I’d be surprised if “T” were to be included) and against unjustified discrimination. McDonnell himself has conceded this point in the Executive Directive he signed a couple of weeks ago, affirming an anti-discrimination commitment (albeit not an enforceable one.)
But that’s not even the best reason to pass such a law. McDonnell doesn’t see — or pretends not to, anyway — that anti-gay discrimination is insidious. Gays and lesbians are much likelier to remain closeted in states where they can be fired just for being gay. And closeted people don’t claim discrimination, because you can’t discriminate against something invisible. But that just means that the discrimination is of a different, “don’t ask, don’t tell,” sort, not that it doesn’t exist.
Moreover, anyone who was discriminated against would be very unlikely to report it in a state that doesn’t protect the reporter. You’re demoted, transferred, or passed over for promotion because you’re a lesbian? A few may turn to the ACLU, Lambda Legal, or some other civil right organization, but most will swallow the discrimination and soldier on, having few occupational choices and no legal recourse.
Does any of that count as a problem, Governor?
Yesterday, I wrote about the events leading up to Virginia Governor Bob McDonnell’s capitulation on anti-gay discrimination. Here’s a one-sentence recap: First, McDonnell rescinds the Executive Order that protected gays and lesbians from job discrimination in state government; then, emboldened by this action, state attorney general Ken Cuccinelli thunders to the state’s universities that their similar anti-discrimination policies aren’t consistent with state law and “requests” that they be repealed; next, universities, perhaps sick of the fact that the state only notices them these days when they want to cut their already-paltry funding or when they feel like bossing them around, take umbrage; then, yesterday, more than 1,000 people — mostly VCU students — march against the homophobia in the state’s capital (Richmond).
So McDonnell’s people then draft a good document, called an Executive Directive, which creates no new rights but recognizes state and federal policy against anti-gay discrimination. Of course, there is no such statutory policy (either in Virginia or at the federal level), so the Directive speaks of the federal and state constitutional guarantees of equality. 1 More than that, the Directive contains rhetoric that I was both surprised and heartened to see from McDonnell, who is a quick enough study to have understood the political cost of shedding the sheep’s clothing of moderation that got him elected.
But the initial Executive Order showed that, in his heart, McDonnell is the same guy whose 1989 J.D. thesis paper at the Christian Regent University is a confused braid of Republican party swooning, unreconstructed theories of what makes a good family, and, of course, Christianist (not Christian) legal and social arguments. Arguing for the Family Protection Act of 1981, he wrote glowingly of its:
“traditional family support measures, such as…a restraint of federal intervention with state statutes pertaining to chld abuse, a redefinition of abuse to exclude parental spanking, and a prohibition of funds for homosexual legal services and other anti-family activities. The Act incorporates sound principles of federalism and self-government, while refusing to acknowledge homosexuality…as acceptable behavior and actions.” (emphasis added)
Translation: “Federalism is good except when I don’t like the results. Homosexuality, bad.”
If McDonnell thought that the Virginia Statehouse was his last stop, he likely would have stood his ground. But he knows that ideas about higher office require him to tamp down his homo-hating tendencies, and he’s putting pragmatics over principle. Once the firestorm hit, he’d have taken a hit if, say, Northrup Grumman decides not to headquarter in Virginia because of the state’s (and McDonnell’s) gay-bashing. Not the image that a pro-business conservative wants to cultivate. Note the order of those mentioned in the following statement McDonnell made to reporters in connection with this new Directive:
“It has caused too much fear and too much uncertainty in the business community and the higher-education establishment and among young people in the commonwealth — and I simply won’t stand for that.”
Translation: “Business comes first. But I’m also worried about turning off a whole generation of younger voters, who might not want me in the Oval Office if I’m seen as too anti-gay.” (As this story shows, even in Mississippi teens are siding with their gay classmates over authorities that would deny them basic equality. Here, a school district canceled a prom rather than allow a lesbian to bring her date. Sigh.)
Of course, McDonnell is already paying a cost with the true believers. The nut-roots of what’s left of the Republican Party aren’t happy, and are setting up camp with Cuccinelli:
“Steve Waters, a Republican operative closely aligned with the party’s conservatives, said of the McDonnell statement: ‘There is trouble in the Republican house when the attorney general seems to side with the grass roots of the Republican Party and the governor and lieutenant governor seem to be straying away.'”
Will this lead to legislation protecting against workplace discrimination based on sexual orientation? Don’t count on that happening any time soon, but at least this kind of kerfuffle moves that day a half-step closer.
As regular readers of this blog know, I’ve been following the story of how the Virginia Governor, Bob McDonnell, and his Attorney General, Ken Cuccinelli, have been working overtime to set the clock back on anti-gay discrimination. First, McDonnell issued an Executive Order that conspicuously omitted “sexual orientation” from the list of classes that the Executive Branch wouldn’t discriminate against (the former two governors had expressly included the category). Then Cuccinelli took the unprecedented step of writing a needless letter to the state’s universities, informing them that their policies against sexual orientation discrimination were in violation of state law. I responded to the first story here, and the second here.)
I’ve been quite gratified by the response over the past couple of days. Yesterday, Taylor Reveley, the President of William and Mary (my alma mater), issued a pitch-perfect letter in response. After noting that the process of reviewing the AG’s letter had just begun, he went into high dudgeon:
For now, let’s be clear that William & Mary neither discriminates against people nor tolerates discrimination on our campus. Those of us at W&M insist that members of our campus community be people of integrity who have both the capacity to meet their responsibilities to the university and the willingness to engage others with civility and respect. We do not insist, however, that members of our community possess any other particular characteristics, whether denominated in race, religion, nationality, sex, gender, sexual orientation, gender identity or expression, or any other of the myriad personal characteristics that differentiate human beings. We certainly do not discriminate against people on such grounds, or tolerate discrimination against them. This is the way we live our lives together at William & Mary, because we believe this is the way we should live our lives together. This is not going to change (emphasis added).
Then, today’s Richmond Times-Dispatch reported on the protest against these changes by about 1,000 students at Virginia Commonwealth University. (Here’s a link to the accompanying video, which for some evil reason won’t embed.) I’ll confess that I felt somewhat vindicated after I’d gotten into an argument with another W&M alum over at the school newspaper’s website over whether people would actually care enough to protest. (As Marge Simpson once said when seeking confirmation that gloating was wrong: “See?”) Go, VCU!
McDonnell is now channeling one of those cartoon characters that retreats in a panic by running through a succession of doors, leaving cut-out imprints of himself in each ex-door. Just a few hours ago, he issued something called an “Executive Directive” — not the same thing as an “Executive Order”, although the differences between the two are obscure. But the Directive is pretty good, even if it seems to have opened up a fissure between McDonnell and Cuccinelli. From the Directive:
Employment discrimination of any kind will not be tolerated by this Administration. The Virginia Human Rights Act recognizes the unlawfulness of conduct that violates any Virginia or federal statute or regulation governing discrimination against certain enumerated classes of persons. The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.
Consistent with state and federal law, and the Virginia and United States Constitutions, I hereby direct that the hiring, promotion, compensation, treatment, discipline, and termination of state employees shall be based on an individual’s job qualifications, merit and performance…. Any cabinet member, agency head, manager, supervisor or employee who discriminates against a state employee or prospective employee in violation of the law or this standard of conduct shall be subject to appropriate disciplinary action, ranging from reprimand to termination.
[C]ivility, fair treatment, and mutual respect shall be the standard of conduct expected in state employment.
McDonnell went as far as he could being true to his long-standing, social conservative convictions; convictions that he downplayed during his campaign. But when Cuccinelli’s letter caused people to take to the streets, the President of one of the state’s flagship schools to write a letter in opposition, and a Board member from another (George Mason) to declare the actions “reprehensible,” McDonnell realizes that what he’d unleashed might stand in the way of his political future, which is commonly thought to be extremely bright (and ambitious). So he’s backed down, bailed out, and run.
And really, I don’t care much about his reasons for doing so. I’m just warmed by the political heat that made this go away — at least for now. If the universities are wise, they’ll issue some generic statement in support of McDonnell’s Directive, declare that their anti-discrimination policies are in conformance with it, and essentially ignore Cuccinelli. And then figure out how to survive in a state that doesn’t financially support what they’re doing.
First, Va. Reactionary-in-Moderate’s-Clothing Governor Bob McDonnell issued an executive order pointedly omitting sexual orientation from the list of permitted grounds for firing state employees. In so doing, he rescinded the earlier order from his predecessor, Gov. Tim Kaine. To be clear, that means that the state can: Ask interviewees for state positions if they’re gay; refuse to hire them on that basis; and fire those discovered to be gay. This should have surprised no one; as Attorney General, McDonnell had opposed the previous executive orders, finding that the the governor’s office had no authority to extend protections not afforded by the legislature. (Never mind that this sort of executive order offering protections against sexual-orientation discrimination are common and rarely questioned; they can at least state the policy of the executive office, even if they can’t grant rights to enforcement.)
Now, Virginia Attorney General Ken Cuccinelli has reportedly asked Virginia state schools, including my alma mater (William and Mary) to overturn policies barring sexual-orientation discrimination, invoking the same “no authority” argument. What is going on here? The AG surely has actual issues to deal with, and anyway can’t expect that the College is going to rescind its policy, or to start discriminating on the basis of sexual orientation. But the developments are just weird enough to have inspired a state senator in neighboring Maryland to have urged local corporation Northrup Grumman not to relocate to Virginia. Here is the letter, which also mentions that McDonnell and Cuccinelli rejected a request from a consortium of the major state universities (including W&M and UVA) to allow for health benefits of same-sex partners even if the employees paid for those benefits in full.
Although a corporation responsible to its shareholders for the bottom line will focus on a number of economic climate issues in deciding where to locate, nothing would make my day more than for Northrup Grumman to choose either Maryland or D.C., and, for good measure, cite the increasingly gay-hating policies of Virginia as a reason for doing so. Maybe the loss of business is actually something they’d understand.
One more thing: It’s particularly outrageous for the state to be so heavy-handed towards its universities when it’s cut funding for them to the bone. According to this story from a few months ago, the percentage of William and Mary’s operating budget that comes from the state has dropped, over the past thirty years, from 43% to 14%. And the cuts, they just keep on comin’. That same article explained that the College was going to have to rebalance its budget in Draconian ways because of:
“a 15%, or $6.2 million, reduction in state support, announced in September 2009 for the current fiscal year ending in June 2010. This was the most recent in a series of state reductions in operating support for the College as the state wrestles with balancing its own budget. Since April 2008, William & Mary has seen its state support permanently reduced by a total of $16.7 million, or 32%.”
Well, things are tough all over, as they say. But faculty salaries at the school have become an embarrassment, strong in-state high school students are being rejected in favor of higher-revenue-paying out-of-staters…and now this. The College should start thinking about a way to go completely private. Otherwise, they’ll continue to get less and less, and pay — in reputation, at least — more and more. Let the state keep its 14%-and-falling.
Despite my current frustration with Obama — or maybe because of it — I watched the entire State of the Union speech. I’m sure it’s being endlessly picked apart by all kinds of talking heads, bloggers, and the like. Me, I’m watching the Australian Open. (The indomitable Serena Williams just beat back a tough challenge from the letter-limited Li Na to advance to the final. No news there.) But I do want to pause to grant some limited props to Obama for mentioning two of my pet issues: Public health and the repeal of “Don’t Ask, Don’t Tell.”
The promise on DADT had generated an anticipatory, bloggy buzz, and it was heartening to hear the President speak to it. I’m confident it will happen. (Missing, though, was any mention of the Employment Non-Discrimination Act which I had thought was also likely to pass into law this year. I was reminded that this issue had been raised in a State of the Union as long ago as the end of the Clinton Administration. Can we please get there? The goal seems to shimmer and recede….)
The DADT comment came towards the very end of a pretty good speech, and very close in time to another issue near and dear to me: public health. Of course, everything the President mentions is public health to me (health care reform is just the most obvious example, but I can’t bear to talk about it right now). But to hear him pledge energy, money and effort to public health efforts to fight terrorism and infectious disease — now that was something. My night was made in five minutes.
Now, to bed. Oh, wait…the recently unretired Justine Henin is taking the court….
Using comments from legal scholars and political commentators as well as case law, this article makes a persuasive argument that anti-discrimination laws have led to marriage equality decisions in state courts. The author, Thomas Messner of the Heritage Foundation, sees this connection as a reason to oppose the federal Employment Non-Discrimination Act (“ENDA”), which, according to Nan Hunter, may be voted on by the House in March. But employment protection is desperately needed (especially for the gender non-conforming community, but not only for them), and one should be asked to make a principled case on the merits against such a law rather than invoking fears of the slippery slope. After all, discrimination laws don’t make courts do anything.
Nonetheless, there has been a progression in some states from other laws protecting LGBT citizens and the right to marry. For those who have spent time on the California Supreme Court’s decision in In Re Marriage Cases, the spat between the majority and dissenting opinions over this issue will be familiar. In a recent article, I take Messner’s point a step further; arguing that California’s inexorable march towards equality for gay and lesbian citizens couldn’t rationally be stopped at the final, incremental step of marriage. By then, the insistence that gays be excluded from the institution of marriage — yet entitled to all of its benefits — stands revealed as pure discrimination, and then impelled the court to subject sexual orientation discrimination to the highest level of scrutiny. Here’s what I said:
Once a state…elevates gays and lesbians to full citizenship, save for the “marriage” designation, it has in effect ceded all of the arguments for separate treatment, and the civil union or domestic partnership stands revealed as a fig leaf that a court can – and should – easily brush off. This point was not lost on dissenting Justice Baxter, who accused the majority of transforming a series of statutory steps into a constitutional principle. His language is colorful: “I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth….”
I’d argue that the constitutional right wasn’t created from whole cloth, but stood revealed after the legislature had affirmed the equality that gays were already entitled to, but historically denied. But Messner is right to see the connection. Of course we disagree on what to do about it.