Connect with us

Opinions

Celebrate Bostock, for now

Religious questions continue to shape scope of legal protections

Published

on

Bostock, gay news, Washington Blade
Gerald Bostock speaks to reporters on the steps of the U.S. Supreme Court building on Oct. 8, 2019. (Washington Blade photo by Michael Key)

In what is at least the biggest victory for LGBTQ Americans since the 2015 decision legalizing same-sex marriage, last month the Supreme Court held that employers who fire employees for their sexual orientation or gender identity violate Title VII of the Civil Rights Act.

But under what circumstances will religious employers be subject to, and their employees protected by, the rule the Court announced?

Let’s start with the positive. The decision in Bostock v. Clayton County, Georgia and the two cases consolidated with it arguably expands the civil rights of LGBTQ Americans more broadly than the Court’s previous gay rights decisions. While the Court’s earlier decisions affirmed for LGBTQ people what retired Justice Anthony Kennedy dubbed “equal dignity in the eye of the law,” in practice they benefited LGBTQ people primarily in the context of our romantic, marital, and sexual relationships. Monday’s decision establishes the equality of LGBTQ individuals as individuals, of sexual orientation and gender identity as categories of human personhood.

This should be a time of nearly unalloyed celebration for LGBTQ Americans, our families, friends, and allies. Though we mourn the loss of two of the plaintiffs in the cases, Donald Zarda and Aimee Stephens, who did not survive to see justice done, the decision has far-reaching implications we have waited a long time for. But the Court’s opinion, authored by Justice Neil M. Gorsuch and joined by Chief Justice John G. Roberts, Jr. and the court’s four liberal members, also signaled where the next front in the battle for LGBTQ equality will be drawn.

Religion, as Justice Stephen Breyer commented at October’s oral arguments, “is the elephant in the room.” It was not for nothing that numerous faith-based organizations attempted to sway the Court’s thinking. National evangelical associations and the U.S. Conference of Catholic Bishops weighed in on behalf of employers who had fired gay and transgender employees, warning that a decision like the one the Court handed down this week “will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” But the Court heard from religious voices on the other side of the spectrum as well, with progressive Muslim, Jewish, and Christian groups urging the justices to affirm the God-given equality of all individuals and prohibit discrimination in our increasingly pluralistic society.

Justice Breyer was right about the place of religion in the cases decided in June, because they did not explicitly feature arguments about religious freedom. Title VII does include an exception for religious organizations that wish to make employment decisions on the basis of their employees’ religious beliefs. Over the past 40 years, lower courts and the Supreme Court have added a separate, judge-made exception that, in the name of avoiding First Amendment problems, frees religious institutions from Title VII when it comes to the hiring and firing of those whom the courts deem “ministers.” And, as Justice Gorsuch observed, the federal Religious Freedom Restoration Act (RFRA) might also “supersede Title VII’s commands in appropriate cases.”

But most objections to the full equality of LGBTQ Americans rest on religious grounds, and so it is not surprising that questions about religion continue to shape the scope of legal protections for LGBTQ citizens.

We will not have to wait long for the next salvo in what has become an ongoing conflict between antidiscrimination laws and assertions about religious freedom.

In May, two Trump administration cabinet departments proposed enabling healthcare providers and homeless shelters to turn away, for reasons of conscience, those who identify as transgender. Later this term—maybe even this week—the Supreme Court will hand down its decision in a second set of discrimination cases. Teachers at two Catholic elementary schools in the Archdiocese of Los Angeles claim they were fired for legally impermissible reasons: one because of a cancer diagnosis that rose to the level of a disability, the other because of age. The schools have argued that because the teachers performed “important religious functions,” they are covered by Title VII’s “ministerial exception” and, therefore, the schools’ employment decisions merit categorical immunity from antidiscrimination laws.

Whether in the context of sexuality, disability, or age, situations like these demand that courts and legislators walk a very narrow tightrope. The success of our pluralistic society requires that we neither ignore sincerely held doctrines religious institutions follow when deciding whom to permit to minister in their name, nor that we defer so blindly to religious institutions that any invocation of faith becomes a shield against laws written to govern everyone, including antidiscrimination laws. It is troubling that, in recent years, some courts and administrative agencies have refused to decide disputes involving religiously affiliated employers, hesitating even to inquire whether they have jurisdiction in individual cases.

The Supreme Court did not need to, and therefore did not, resolve these complex questions in its landmark ruling in Bostock. But the questions keep turning up, in cases involving bakers and photographers, teachers and organists. For the peace of mind of all who work in and patronize institutions with a religious mission, sooner or later the Court will have to decide. Whether that day will also be a day of celebration for LGBTQ Americans remains to be seen.

Patrick Hornbeck is chair and professor of theology at Fordham University, where he is also a JD candidate at Fordham Law School.

Continue Reading
Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Opinions

Trump family had a tough week — may it only be the beginning

Let’s hope he’s headed to prison instead of back to White House

Published

on

Donald Trump, Jr., Eric Trump and Donald Trump in happier times in 2016 at the ribbon-cutting of the Washington, D.C. Trump Hotel, now the Waldorf Astoria. (Blade file photo by Michael Key)

For the first time I actually think Donald Trump and his family may get what they deserve. They have been screwing the country for so long it seemed no one could get to them. Donald Trump is like a mafia don, with his family, and others like Rudy Giuliani, being his soldiers. Like many mafia don’s we have seen, while not going down for the deaths he caused, he will likely go down for his financial shenanigans.

As reported in the Washington Post, “The legal dangers facing former president Donald Trump rose this week, after the New York attorney general filed a fraud lawsuit that could effectively shutter the Trump Organization and the U.S. Court of Appeals for the 11th Circuit allowed federal investigators to continue their probe into classified documents found at Mar-a-Lago.” In addition, “other setbacks for Trump come as at least a half-dozen additional legal efforts proceed against him and his allies. Federal prosecutors have subpoenaed dozens of his former advisers, and many others, as part of a sprawling investigation into efforts to obstruct the transfer of power after the 2020 election. Separately, a Georgia grand jury has been looking at allegations that he tried to obstruct that state’s electoral count by pressuring Secretary of State Brad Raffensperger (R) to ‘find’ enough votes to overturn the election.” 

While the New York State investigation is civil, New York AG Letitia James has referred her findings to the Manhattan DA, to U.S. Attorney for the Southern District of New York, as well as to the IRS, for possible criminal proceedings. Many of us are keeping our fingers crossed one of these many investigations will finally see Donald Trump where he belongs; not in the White House, but as a more permanent resident in other federal housing, a jail cell. 

While it is important to hold Trump and his acolytes accountable for all the legal issues, we must also hold him responsible for the cultural wars he inspired and promoted. We have always known there are racists, homophobes, transphobes, sexists and misogynists in our midst. However, through hard work and many years of progress, we had seemingly reached a time in this country when people who harbored those hideous feelings couldn’t stand openly in the public square and voice them, no less act on them, without repercussions. The four years of Trump’s presidency changed that. What he did through his words and actions gave people tacit permission to spout these thoughts and even to act on them. He did this because people understood he was all of those things himself, and in most instances never really tried to hide it. He openly courted and defended white nationalists and neo-Nazis. He bragged about mistreating women. Because of Trump many members of minority groups including the LGBTQ community, African Americans, Asians and women have actually lost their lives to violence. If not losing their lives, many lost the chance to live their lives openly, freely and in safety. With all his misguided policies, lies and obfuscations, it is the cultural wars he unleashed that will take the longest, maybe decades, to counter.

We once had two relatively sane political parties, both advocating differing policies but both standing up for democracy. They seemed to understand our government was founded on the need for compromise to move forward their particular ideas. I may have disagreed with most Republican policies, and their national platforms, but I knew that if they won the Congress and the presidency, I could still fight another day to have Democrats win the next time and change the direction of the country more to my liking. But either way our democracy was going to stand. Today, if Republicans take over, I am not so sure of that.

Yet for some reason I still have confidence in most of the American people. I believe they will fight for our democracy by voting this November to give the Democrats continued control of Congress. By doing so they will let us continue to work to shore up our democracy and to make progress on issues from climate change, to immigration, updating our tax code, and ensuring no person in our country goes without a roof over their head, food in their stomach, and adequate healthcare. I believe we can defeat both Trump and Trumpism if we can convince enough people the road to a better life for them, their children, and grandchildren, is to reject Trump’s evil and defend our democracy.  

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

Continue Reading

Opinions

Kenyan McDuffie for D.C. Council-at-Large

A voice of reason and progress in city government

Published

on

D.C. Council member Kenyan McDuffie (D-Ward 5). (Washington Blade file photo by Michael Key)

Kenyan McDuffie is a voice of reason, and a voice for progress, on the D.C. Council. He has been a voice for those without one, and for minority communities across the District. 

Kenyan is a fourth-generation Washingtonian raised in a working-class family of six. He attended Shaed Elementary in Edgewood, St. Anthony Grade School in Brookland, and graduated from Woodrow Wilson Jackson-Reed high school, having played varsity basketball. He has been a union member working as a mail carrier for the U.S. Postal Service. His college career began at the University of the District of Columbia, which he continues to strongly support. He transferred and graduated summa cum laude from Howard University with a bachelor’s degree in Political Science and Community Development and then joined the staff of Congresswoman Eleanor Holmes Norton. He left there to attend the University of Maryland School of Law, where he was an editor of the law school’s Journal of Race, Religion, Gender and Class. 

After law school he clerked for an associate judge on the 7th Judicial Circuit of Maryland and then became an Assistant State’s Attorney in Prince George’s County. He then joined the Civil Rights Division of the U.S. Department of Justice, where, as a trial attorney, he enforced key federal civil rights laws in cases throughout the country. His caseload at the DOJ included defending the civil rights of the mentally ill, nursing home residents, persons with disabilities, and other vulnerable populations.

At that point in his career, Kenyan added community activist to his resume becoming president of his local civic association and taking a job as a policy adviser with the Deputy Mayor for Public Safety and Justice. In that position he worked with Council members to shape policy and legislation for the District of Columbia.

In 2012, with this wealth of experience, he was elected to the D.C. Council. At that time Lateefah Williams, president of the Stein Democratic Club, wrote in the Blade, “Kenyan McDuffie is the type of leader that Ward 5 needs. He is intelligent, he has key experience in diverse matters from public safety to public policy, and he is a staunch supporter of the LGBT community. These are some of the reasons the Gertrude Stein Democratic Club, D.C.’s largest LGBT political organization, endorsed Kenyan McDuffie for Ward 5 Council.  … and why I personally support Kenyan McDuffie.” Her confidence in Kenyan was well placed. For 10 years he has worked to build coalitions and create solutions, tackling D.C.’s most significant challenges. In his first year on the Council, he was elected to serve as Chairman Pro Tempore (Vice Chair), a position he continues to hold. 

Kenyan is what those of us looking at legislators call a work-horse, not a show-horse. He has put in the work to bring consensus and pass legislation, which he did with sweeping updates to D.C.’s criminal justice laws when he became chair of the Judiciary Committee in 2017. With that committee he oversaw the implementation of D.C.’s police body-worn camera program, including ensuring the public has fair access to the video footage from encounters with officers. 

Kenyan has a view of public safety that includes both a strong MPD, with appropriate community oversight, and recognition of the need to fully fund community organizations working to reduce crime. Kenyan, like the mayor, believes we need to do both of these things, not one or the other. He recently said, “One of my proudest moments on the Council is passing the Neighborhood Engagement Achieves Results (NEAR) Act. The law takes a holistic approach to preventing crime in the first instance and floods communities disproportionately impacted by violence with resources – including violence interrupters and behavioral and mental health services – in addition to more innovative, data-driven policing.”

For the past five years, Kenyan has chaired the Council’s Business and Economic Development Committee. His focus has been on helping grow the local economy with a stronger focus on supporting small and minority-owned businesses. He fought to put millions of dollars in the Commercial Acquisition Fund to allow socially disadvantaged business owners to apply for grants to purchase commercial properties here in D.C. Kenyan spearheaded an emergency relief package of $100 million to help the hospitality, entertainment, and retail industries – some of D.C.’s largest employers of immigrants and minority workers – weather the pandemic and keep District employees on the payroll.

For these reasons, and many more, we cannot afford to lose Kenyan’s voice on the Council. I urge everyone to cast their vote for Kenyan McDuffie for Council-at-large. 

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

Continue Reading

Commentary

Bisexual activists cautiously excited after White House meeting

Sept. 20 gathering took place during Bisexual Visibility Week

Published

on

From left to right: Ellyn Ruthstrom, Tania Israel, Nicole Holmes, Mimi Hoang, Ezra Young, Lauren Beach, Belle Hagget Silverman, Diana Adams, Heron Greenesmith, and Khafre Abif. Kneeling: Robyn Ochs, Fiona Dawson and Blair Imani outside the White House on Sept. 20, 2022. (Photo courtesy of Heron Greenesmith)

On Tuesday, Sept. 20, just in time for Bisexual Visibility Week, a diverse group of 15 bisexual and pansexual activists met with officials from the White House and the Department of Health and Human Services (HHS), including Melanie Fontes Rainer, the director of the Office of Civil Rights at HHS. 

The 15 advocates comprised a wide cross-section of the bisexual community, including nonbinary, transgender, female, young, older, Black, Asian and Muslim advocates, people with disabilities and parents. We came from many walks of life: Academia, education, research, health care, advocacy, law, media and community activism. This isn’t unusual: Bisexual people comprise more than half of all LGBT people, totally approximately 12.5 million bisexual adults in the U.S. Strikingly, 15 percent of all GenZ adults — nearly 1 in 6 — identify as bisexual. People of color are more likely to identify as bisexual, as are cisegender women and transgender people in general. 

It has been a painful six years since the Executive Branch last met with bisexual activists (you do the math.) Those meetings, like this one, were the product of tireless advocacy from a population with zero paid organizational staff and less than one percent of all philanthropic dollars earmarked for the LGBT community. It was these stats and others that we shared at HHS on Sept. 20. 

Bisexual and pansexual people face specific disparities in mental and physical health, intimate partner violence and monkeypox prevention, treatment and care. Did you know, for example, that nearly half of bisexual women report having been raped? And did you know that federal reporting on monkeypox doesn’t disaggregate between gay and bisexual men and men who have sex with men, despite evidence that bisexual men are uniquely vulnerable to MPX and other infectious diseases. 

Khafre Abif is a Black bisexual educator, father and person living with HIV. At the meeting with agency officials, Abif shared the story of how staff at his HIV-care clinic initially denied him the monkeypox vaccine, despite Abif being bisexual and thus in a population of special focus for the vaccine. 

“This meeting has been a long time coming for the bi+ community,” said Abif. “I’m looking forward to a dialogue with federal officials about solving some of the health issues we face.”

In order to begin remedying these disparities and more, we presented the administration with a set of benchmarks, including the creation of a Federal Interagency Bisexual Liaison and a Federal Interagency Bisexual Working Group. Other benchmarks included training for HHS staff on bisexual disparities and remedies thereof, funding streams for bisexual-specific funding and interventions, and the disaggregation of data on specific health disparities. 

Robyn Ochs is a pillar of bisexual and pansexual community organizing. At HHS, Ochs shared more about her specific expertise. “Research has made clear our health disparities and invisibility. It’s time for federal interventions to catch up with what we already know through research and lived experience.”

Frustrated by years of inaction by the federal government to release bisexual-specific data, target the bisexual and pansexual community with tailored interventions, or recognize the importance of bi+ health in general, we are cautiously excited by this opportunity to share critical data and remedies. 

Heron Greenesmith is the Senior Research Analyst for LGBTQI+ Justice at Political Research Associates, and the co-founder of BiLaw and the Polyamory Legal Advocacy Coalition. Find Greenesmith on Twitter @herong.

Continue Reading
Advertisement

Sign Up for Weekly E-Blast

Advertisement

Follow Us @washblade

Advertisement

Popular