Connect with us

Opinions

The unclear future of LGBTQ rights at the Supreme Court

Is there reason to hope the justices will surprise us?

Published

on

marriage equality, Supreme Court, gay news, Washington Blade
marriage equality, Supreme Court, gay news, Washington Blade

(Washington Blade file photo by Michael Key)

The Supreme Court’s new term began Oct. 1. The justices have not yet accepted any cases squarely addressing LGBTQ rights questions; however, numerous appeals raising key issues for our community are waiting in the wings. As Brett Kavanaugh settles into his new position on the Court after a fractious confirmation process, many in the LGBTQ community are wondering which, if any, pending cases the Court will choose to hear and, if it does take on any such cases, how it will rule.

There’s no question that there’s a lot at stake.

There are four petitions now pending before the Court asking it to decide whether federal sex discrimination laws encompass discrimination based on sexual orientation or gender identity. If the Court agrees to hear any of these, its ruling could determine whether LGBTQ people are protected under current federal laws prohibiting discrimination in employment, education, housing and credit.

Two cases challenging President Trump’s attempt to bar transgender people from the military are at the federal courts of appeals, one step from the Supreme Court. One of them—Lambda Legal’s and OutServe-SLDN’s Karnoski v. Trump case—is being argued to the Ninth Circuit on Oct. 10.

Several cases already on appeal could again put before the Court as to whether there are circumstances in which businesses have a constitutional right to discriminate. In one, a Hawaii bed & breakfast owner is expected to soon petition the Court to review a decision that rejected her claim of a right to refuse a lesbian couple lodging.   

Three suits questioning whether schools can bar transgender students from restrooms that match their gender identity also are now on appeal. So, too, is a case asking whether the city of Philadelphia acted properly in terminating its contracts with two religiously affiliated foster care agencies that refused to abide by the city’s sexual orientation nondiscrimination policies.

Accordingly, it could be a big year for LGBTQ Americans in the highest court of the land—but it might not be. The Supreme Court doesn’t have to consider any of these cases. Out of approximately 7,000 requests that the Court review lower court decisions each year, the Court agrees to hear about only 80, or slightly more than one percent of them.

Brett Kavanaugh’s recent confirmation brings even more uncertainty to the Supreme Court this year. Lacking a record of LGBTQ rulings, we still do not know for sure how Kavanaugh will rule on sexual orientation or gender identity questions. He has a record of ruling conservatively on many issues. Nonetheless, during his confirmation hearing, he repeatedly quoted from an opinion authored by his mentor, Justice Anthony Kennedy, that, “The days of discriminating against gay and lesbian Americans or treating gay and lesbian Americans as inferior in dignity and worth are over.”

Even if the new Justice Kavanaugh does end up siding with members of the Court who have dissented from the Court’s prior landmark victories for LGBTQ rights in any cases the Court agrees to hear, it may be possible to swing Chief Justice Roberts to join with the four justices who have ruled in favor of LGBTQ people in the past. Roberts previously voted with those justices in decisions rejecting a challenge to the Affordable Care Act, allowing cities to sue banks that targeted people of color for high-risk loans, and restricting the police’s ability to obtain suspects’ cellphone location data without a warrant. And notwithstanding Roberts’ criticism of the Court’s marriage equality decision, he subsequently voted to summarily reverse the Arkansas courts’ judgment that the state did not have to list both same-sex spouses’ names on their children’s birth certificates.

The Chief Justice’s votes sometimes reflect institutionalist concerns with preserving the Court’s legitimacy and stature. That impulse may cause him to decline to overturn certain prior precedents. It also may lead him to vote against hearing cases that may be especially divisive or to find ways to avoid particularly controversial outcomes that would subject the Court to criticism. That’s especially likely to weigh on his mind because of how partisan Justice Kavanaugh’s confirmation turned out to be.

There also are important cases already on the Court’s docket that go beyond LGBTQ concerns. For example, the Court has agreed to hear Gamble v. United States. That appeal asks the Court to overturn its precedent that the Constitution’s bar on double jeopardy—which prohibits prosecuting someone twice for the same offense—does not bar separate prosecutions for violation of state and of federal law based on the same conduct. The issue is important because, if that precedent were reversed, a presidential pardon of those indicted for federal crimes could preclude states from prosecuting them as well.

Time will tell. In the meantime, it’s imperative that we not give up hope and that we not put all our apples in the Supreme Court basket.

 

Jon Davidson is chief counsel for Freedom for All Americans.

Continue Reading
Advertisement
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Commentary

Sondheim’s art will be with us for the ages

Iconic work explored sadness, rage, irony, and love of humanity

Published

on

Stephen Sondheim (Screen capture via CBS)

“The only regret I have in life is giving you birth,” his mother wrote in a letter to Stephen Sondheim.

The only regret so many of us feel now is that Sondheim, the iconic composer and lyricist, died on Nov. 26 at his Roxbury, Conn. home at age 91.

He is survived by Jeffrey Romley, whom he married in 2017, and Walter Sondheim, a half-brother.

F. Richard Pappas, his lawyer and friend, told the New York Times that the cause of death was unknown, and that Sondheim had died suddenly. The day before he passed away, Sondheim celebrated Thanksgiving with friends, Pappas told the Times.

“Every day a little death,” Sondheim wrote in “A Little Night Music.”

This isn’t the case with the passing of Sondheim. Whether you’re a Broadway star or a tone-deaf aficionado like me, you’ll sorely miss Sondheim, who the Times aptly called “one of Broadway history’s songwriting titans.”

Like multitudes of his fans, I don’t remember a time in my life when a song from a Sondheim musical hasn’t been in my head.

When I was a child, my parents repeatedly played the cast album of “Gypsy,” the 1959 musical with music by Jule Styne, lyrics by Sondheim and book by Arthur Laurents. My folks loved the story of the show, which was loosely based on the life of the burlesque artist Gypsy Rose Lee. You haven’t lived until you’ve heard Ethel Merman belt out “Everything’s Coming Up Roses!” When I need to jumpstart my creative juices, I remember that “You Gotta Get a Gimmick.”

In college, I felt that “Company,” the 1970 musical with music and lyrics by Sondheim and book by George Furth, spoke to my generation. 

As was the case with Sondheim’s musicals, “Company” didn’t have a conventional plot, happy ending, or tidy resolution. It takes place during Bobby’s 35th birthday party. Bobby, who is single, is celebrating with his friends (straight, married couples). Bobby likes having friends but doesn’t want to get married.

Sondheim didn’t come out as gay until he was 40. Yet, even in the 1970s, it was hard not to think that Bobby in “Company” wasn’t gay.

Once you’ve heard Elaine Stritch sing “The Ladies Who Lunch” from “Company,” it becomes indelibly etched in your brain.

Who else but Sondheim could have written, “And here’s to the girls who play/smart-/Aren’t they a gas/Rushing to their classes in optical art,/Wishing it would pass/Another long exhausting day/Another thousand dollars/A matinee, a Pinter play/Perhaps a piece of Mahler’s/I’ll drink to that/And one for Mahler!”

In September, I, along with legions of other theater lovers, were thrilled when Sondheim told Stephen Colbert on “The Late Show,” that he was working with David Ives on a new musical called “Square One.”

In his musicals from “Follies” to “Sweeney Todd” to “Sunday in the Park with George,” Sondheim, through his lyrics and music, revealed the internal depths of his characters and the sadness, tenderness, bitterness, rage, irony, wit, and love of humanity. Sondheim’s wordplay was so brilliant that he did crossword puzzles for New York magazine.

Over his decades-long career, Sondheim won every award imaginable from the Pulitzer Prize for “Sunday in the Park with George” to the Presidential Medal of Freedom (awarded to him by President Barack Obama in 2015). He received more than a dozen Tony Awards for his Broadway musicals and revivals as well as a Tony Award for lifetime achievement in 2008.

Thankfully, Sondheim’s art will be with us for the ages.

A remake of “West Side Story,” directed by Steven Spielberg with a screenplay by Tony Kushner, premieres this month.

Sondheim is a character in the Netflix film “tick, tick BOOM!,” directed by Lin-Manuel Miranda. The movie is based on an autobiographical posthumous Jonathan Larson (the composer of “Rent”) musical. Sondheim is supportive of Larson’s work.

Thank you Stephen, for your art! R.I.P.

Kathi Wolfe, a writer and poet, is a regular contributor to the Blade.

Continue Reading

Opinions

Publish trans employment stats

Not enough corporations that march in Pride are hiring non-binary staff

Published

on

On Nov. 10, the top-tier consulting firm McKinsey published a report on discrimination toward trans people in the workplace. The report came out with numbers that we have all known true for a long time and lead to one conclusion: Trans people have a harder time finding jobs, holding them down, and advancing in their careers. 

Specifically, McKinsey cited the fact that cisgender people are twice as likely to be employed as trans people, and that more than half of trans employees are uncomfortable being out at work. Meanwhile, cisgender employees make 32% more than trans employees in the workplace, even if those trans employees hold the same positions or higher positions. 

On top of this, trans people are 2.4 times more likely to be working in the food and retail industries, which pay entry level wages that are much less than decent pay. 

These statistics are true based on a number of factors. For one, many trans people have a harder time passing at work, and people who don’t pass well face worse job prospects. (As a side note, on top of that, the study pointed to the fact that many trans people exert undue emotional and psychological energy into trying to pass really well and not be discriminated against, which takes a toll on their mental health.) 

So what is a concrete step that corporations can take to make the trans experience in the workplace better? It’s time that corporations step up their game by publishing and making transparent the number of trans employees that they actually hire. Such numbers can be published in any kind of company document: a pamphlet, online report, or even annual shareholder’s report. As it is, most corporations do not publish numbers on LGBT employees. 

“Rainbow capitalism” is a term we know all too well: major corporations and multinationals flaunting a rainbow and trans pride flag during the month of June, but seemingly doing little to hire more trans people or give back to the community during other months. 

Every corporation surely has the time and company-wide infrastructure to get statistics on their trans employees. All they need to do is implement a company-wide survey to new hires. This takes extremely little effort and time in the grand scheme of company workings. 

If major corporations like McKinsey, Bain, Deloitte, defense contractors, and hundreds of other huge companies published statistics on trans employees, they would be held accountable for their actions and words.

If these statistics were to be published today, we would probably find out that not enough corporations that march in Pride parades are hiring trans and gender nonconforming employees. 

Turning the numbers against corporations will ensure that these same corporations finally live up to their words about workplace inclusion and diversity. It won’t cure everything about the issue of being trans in the workplace, but it’s a step in the right direction. 

Isaac Amend (he/him/his) is a trans man and young professional in the D.C. area. He was featured on National Geographic’s ‘Gender Revolution’ in 2017 as a student at Yale University. Isaac is also on the board of the LGBT Democrats of Virginia. Find him on Instagram @isaacamend.

Continue Reading

Opinions

Should we be scared of Omicron?

A reminder to stay vigilant against latest mutation

Published

on

It’s Sunday of Thanksgiving weekend when I sit down to write this column. The craziness in the world continues but other than the scare of the new COVID mutation, which has been named Omicron, there isn’t one headline to grab attention. Instead, there are many, including some manufactured by the news media to gain viewers or sell papers. Some like the car rampaging through the Christmas parade is frightening but incidents like this seem to be happening all too often.  

The stock market went down 1,000 points on Friday because market players freaked out about the new COVID mutation coming out of South Africa. However that didn’t seem to stop people from spending their money on Black Friday. Rep. Lauren Boebert (R-Colo.) was again on the attack this time against fellow Congresswoman Ilhan Omar (D-Minn.) accusing her of being a Muslim terrorist. She apologized, or pretended to, but again the Republican leadership wouldn’t condemn her statements. These things seemed to be grist for the news media with no one else unfortunately really voicing concern. 

Boebert’s comments were taken as old hat. They are disgusting, offensive, and dangerous, but as long as her constituents reelect her we will have to live with them. She is joined by Rep. Marjorie Taylor Greene (R-Ga.),  Madison Cawthorn (R-N.C.), and Paul Gosar  (R-Wyo.) who represent the worst in Congress and the worst of the American people. Yet again until their constituents throw them out we have to live with their stupidity and the absurdity of their being where they are. 

The new COVID mutation out of South Africa is potentially a game changer. But it will be important for scientists to look at this carefully to determine how quickly it spreads and whether or not the current vaccines will offer any protection against it. Countries around the world, including the United States, have quickly instituted travel bans for South Africans and those in countries surrounding it. The World Health Organization at this time has suggested this should not be done as it will have limited impact on its spreading and could have severe and detrimental economic impact on countries whose people are being banned. One thing we must learn from this is how important it is to ensure everyone all over the world has access to vaccines as we know the more people who are inoculated the harder it is for the virus to mutate. It is not time to panic yet and by Sunday there was some reporting this new mutation may not be any more difficult to deal with than the current ones and not lead to any more severe illness. The takeaway from all this is we need to keep vigilant, get vaccinated and get booster shots, and make sure we vaccinate our children. Continue to wear masks indoors and wash our hands. 

Now the other interesting stories last weekend were about what will happen in the Senate in the weeks leading up to the Christmas holidays. Remember the House of Representatives passed President Biden’s Build Back Better bill as a reconciliation measure, which means it can pass the Senate with a simple majority. That would mean every Democratic senator and the vice president. The focus is on two senators: Manchin (D-W.Va.) and Sinema (D-Ariz.). In reality we need to look at a number of others who will fight to either take out or put something into the bill the House passed. It is clear it will not pass in the current form and then it has to go back to the House again. 

Another issue that will be taken up is the debt ceiling. It may be a little easier than thought because as recently reported, “After taking a hard line and refusing to negotiate with Democrats during the last standoff over the debt limit, Senate Minority Leader Mitch McConnell (R-Ky.) is quietly looking for a way to get the issue resolved without another high-profile battle.” Then there is the budget and since none is passed Congress will have to pass another continuing resolution since the one they passed in September expires on Dec. 3. 

So for the next few weeks there will be a focus on the Senate to see what they do and how obstructionist Republicans want to be. Seems while things change, they somehow remain the same.

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

Continue Reading
Advertisement
Advertisement

Follow Us @washblade

Sign Up for Blade eBlasts

Popular