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Supreme Court poised to roll back LGBTQ rights

Rebalance stolen court via expansion, term limits

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LGBTQ advocates were rightly relieved when the Supreme Court handed down Bostock v. Clayton CountyĀ this past June, a case that extended the prohibition against discrimination in employment to include discrimination based on sexual orientation and gender identity. And with the most LGBTQ-friendly President-elect in U.S. history poised to take office in a matter of days, our community has even more reason to be hopeful.

Despite these positive developments, however, the Supreme Court poses a grave danger to the LGBTQ community. As the court ushers in a new era of conservative dominanceā€”with anti-LGBTQ justices holding a 6-3 supermajorityā€”the fragile judicial coalition on which the movement for equality has relied is at significant risk of being cast aside.Ā 

Justice Amy Coney Barrettā€™s recent confirmation to the court is deeply concerning. Justice Barrett has defended Justice Robertsā€™ dissent in Obergefell, indicating that the issue of marriage equality should belong to state legislatures. She has repeatedly used transphobicĀ and homophobicĀ language, and even argued that Title IX does not protect transgender people. Her extremist positions will embolden the anti-LGBTQ conservative justices on the court ā€“ Justices Kavanaugh and Alito recently held an inappropriate private meetingĀ with an anti-gay activist who had filed briefs in pending cases ā€” and other Trump-appointed judges, as well as state legislatures to take anti-LGBTQ stances. With equality hanging in the balance, the LGBTQ community cannot afford a Supreme Court that stands to crush any progress made.

Marriage equality:Ā In October, the Supreme Court denied certiorari to a case involving Kentucky woman Kim Davis, who refused to issue marriage licenses to same-sex couples. However, the denial of certiorari came with warning signs: Justices Alito and Thomas wrote a section that cast doubt on the constitutionality ofĀ Obergefell, the landmark Supreme Court case in which Justice Kennedyā€™s opinion that held that marriage is a fundamental right guaranteed to same-sex couples by the Constitution. In the certiorari denial, Justice Thomas wrote: ā€œBy choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created aĀ problem that only it can fix. Until then,Ā ObergefellĀ will continue to have ā€˜ruinous consequences for religious liberty.ā€™ā€ While broad majorities of the American people support marriage equality and opponents of it might not have the votes on the Supreme Court to overturn the precedent, it is nonetheless a troubling sign that two Justices would sign onto discrimination against our fellow citizens.

Discrimination:Ā The currently pending caseĀ before the Supreme Court about discrimination isĀ Fulton v. City of Philadelphia. The case emerged from circumstances in 2018: The city of Philadelphia had hired a number of agencies for foster care service. When the city learned that two agencies denied same-sex couples as foster parents, Philadelphia threatened to stop using the agencies unless they agreed to nondiscrimination requirements. While one of the agencies complied, the other, the Catholic Social Services (ā€œCSSā€), sued the city in federal district court. The federal district court found in Philadelphiaā€™s favor, which the Third Circuit then unanimously affirmed. Nonetheless, the Supreme Court granted certiorari.

The CSS claimsĀ that because the city looks to several factors, including religious and racial factors, in spite of anti-discrimination law, it cannot at the same time prohibit the agency from considering the sexual orientation of foster parents under the guise of ā€œreligious belief.ā€ If Philadelphia makes exceptions to its anti-discrimination laws in foster placement, it must also allow religious agencies an exception as well. If Philadelphia does not do so, it violates the First Amendment. The city claims that it can choose not to provide government contracts to organizations that do not adhere to its nondiscriminatory requirements. For the court to decide otherwise, it would mandate that the city discriminate.

The stakes are high, in part because a ruling against equality inĀ FultonĀ could provide cover for underminingĀ Bostock, which extended Title VII protections to LGBTQ employees. An expansion of the religious liberty to discriminate could eat away atĀ Bostock. Even a 5-4 court with Justice Kennedy ruled against LGBTQ rights in Masterpiece Cakeshop. Now, with a 6-3 conservative supermajority,Ā FultonĀ could strike a big blow against equality.

Health care and family:Ā If the Supreme Court strikes down the Affordable Care Act (ACA) in California v. Texas, health care protections for the LGBTQ community would be eliminated. Section 1557 of the ACA is the lawā€™s non-discrimination provision, which bans discrimination in health care on the basis of sex. The Obama administrationā€™s rule interpreted Section 1557ā€™s ban on sex discrimination to includeĀ discrimination on the basis of sexual orientation and gender identity. In addition to Section 1557, the ACA as a whole has been enormously importantĀ for the LGBTQ community. The uninsured rateĀ for lesbian, gay and bisexual Americans fell dramatically due to the ACA and LGBTQ adults have become more likelyĀ to report having regular access to health care. For transgender Americans, who are more likelyĀ to live in poverty or be unemployed and to face enormous challengesĀ and have negative experiences accessing health care, the ACAā€™s Medicaid expansion and provision of individual health insurance through the marketplaces are critical. The 6-3 conservative supermajority on the court makes the end of the ACA significantly more likely, with disastrous consequences that will disproportionately affect the LGBTQ community.Ā 

Lawsuits challenging the Obama administrationā€™s interpretation of Section 1557, particularly in regard to its ban on discrimination on the basis of gender identity, have been percolating in the federal courts for years. The Trump administration has attempted to reverseĀ those protections, but it is widely expected that the Biden administration will revert to the Obama-era rule.Ā Even if the ACA survives, this line of litigation could undermine critical protections for transgender individuals in the health care system. While the Supreme Courtā€™s decision in Bostock v. Clayton CountyĀ last term interpreting similar language in Title VII (discrimination on the basis of sex) to cover gender identity should be definitive, the 6-3 conservative supermajority could decide to distinguish these cases and allow for discrimination against LGBTQ individuals in health care. Since so many of the nationā€™s hospitals are affiliatedĀ with religious organizations such as the Catholic Church, the court could seize on Justice Gorsuchā€™s language inĀ BostockĀ suggesting that the Religious Freedom Restoration Act (RFRA) could trump Title VII to require broad religious exemptions from non-discrimination in health care.Ā 

Transgender rights:Ā In addition to the massive blow that a gutted ACA could have for transgender rights, other cases about transgender rights percolating in the lower courts may someday make their way to the Supreme Court. In Saba v. Cuomo, for example, a transgender, nonbinary resident sued the state of New York for refusing to allow Mx. Saba to obtain a driverā€™s license that accords with Mx. Sabaā€™s gender identity. In August, a lower court preliminarily enjoinedĀ Idahoā€™s law that barred transgender women from participating on womenā€™s sports teams. That decision is currently being appealed.

Just this past year, the Fourth CircuitĀ and the Eleventh CircuitĀ considered whether school bathroom policies violated transgender studentsā€™ rights. Though both circuits ruled in favor of the students, theĀ GrimmĀ case briefly reached the Supreme CourtĀ in 2017 before being sent back to the lower court. In 2019, the Supreme Court rejected certiorariĀ in a case involving transgender bathrooms, leaving a lower courtā€™s trans-affirming decision in place. But it only takes four votes for the Court to take a case, and with a 6-3 supermajority now firmly in place, there is no telling the havoc it could wreak on transgender rights.

As we celebrate the end of the Trump era, and as we prepare to work with the incoming Biden administration to restore rights that have been destroyed over the past four years while advancing the case for equality, the LGBTQ community must pay attention to the danger posed by anti-LGBTQ justices, and we must advocate forcefully for judicial reforms such as court expansion and term limits that rebalance the stolen, illegitimate court.

 

Aaron Belkin is the director of the Palm Center and of Take Back the Court, and a political science professor at San Francisco State University.

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Successful open relationships take effort

We have options as couples but they all require work

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Jake Stewart

(Editorā€™s note: This is the second of a two-part feature on open relationships. Click here for last weekā€™s installment.)

Open relationships are often ridiculed as the easy way out of commitment. After speaking with Scott and Kelsey, however, itā€™s clear theyā€™re anything but easy. 

Kelsey reflected on the ups and downs of being open in the past. ā€œYounger me definitely needed it,ā€ Kelsey said. ā€œAt the same time, drama came with it as well.ā€

While Scott and their partner have been together for nine years, it took four before they decided to open their relationship. ā€œIt came from the desire for the two of us to meet boys together,ā€ said Scott. ā€œThen we had some really terrible threesomes.ā€ 

Drama. Bad threesomes. Yikes ā€“ these arenā€™t exactly selling points for being open. But their experiences underscore something important: open relationships, like all relationships, are actually quite hard. Couples considering openness shouldnā€™t trick themselves into thinking it will make things easier. In reality, they take a lot of work. 

For Scott, those really terrible threesomes led them to opening up further, but with established boundaries. ā€œWe came up with ground rules. Use protection. No spending the night at somebodyā€™s house, etc.ā€  

Since Scott and their partner are happy in their relationship, these rules seem to work even if theyā€™ve shifted over time. ā€œBeing in an open relationship comes down to being really good at communicating with your partner,ā€ they added. ā€œItā€™s about communicating and checking in to see where your partner is.ā€

Open relationships should be for the right reasons 

As open relationships began taking off, observers were skeptical for good reason. ā€œIn the past, people were just cheating,ā€ said Kelsey. Another comment from Scott echoed this. ā€œIā€™ve seen open relationships and it felt like one partner was being taken advantage of by the other.ā€ 

It turns out there is a fine line between sexual exploration and free passes. While some open relationships walk that line well, others ā€“ not so much.  

In all fairness, now more than ever itā€™s difficult to remain monogamous, and one culprit is the rise of accessible hookup culture via social media. Apps like Tinder, Grindr, and dare I say Instagram are facilitating secret sexual connections never seen before. They ushered in a new era of cheating into relationships, alongside a bit of excessive stalking as well. 

So, to avoid an atmosphere of mistrust and pain, a natural evolution for couples is to change the rules altogether. Cheating canā€™t be cheating if itā€™s allowed, right?

However, once it is allowed, I wondered why these people donā€™t cut the strings altogether and be single. In response, Chad made an interesting point: people arenā€™t just afraid of being cheated on ā€“ theyā€™re afraid of the appearance of being single as well. We live in flashy times where our online image means everything. The dream is not necessarily having a partner, but showing the world you have a partner. Without that, you otherwise appear lonely. 

So, do open relationships ease the pain of cheating and perceived loneliness? As a proud lone wolf Iā€™m not the best person to assess, but based on my observations I can say this: being open works for some couples, but by no means is it a fast pass to being happy. Understanding why you want one is just as important as discovering how to make one work. 

With all this said, the undeniable risk ā€“ and perhaps downside ā€“ of a monogamous coupling is the higher chance of cheating outright. Unfortunately, thatā€™s something Chad knows all too well. 

Preferring monogamy is still OK

Chad had dated someone for two years before they married for five. Then, just over a year into the pandemic, his husband informed him he was dating someone else. They separated a few days later. 

For Chad this was painful, as it is for anyone, gay or straight, whoā€™s gone through something similar. But when I asked him if this experience shaped his outlook on what heā€™s looking for, his response came as a bit of a surprise: 

ā€œIt has not changed my view for or against open relationships,ā€ he said. ā€œI learned a lot in my marriage. It takes a lot of love, trust, and communication, which at times can feel like work. It also takes two; one canā€™t carry the relationship. I want to date someone who wants to be in a relationship with me.ā€ 

My heart swells hearing that, for even after experiencing the deepest kind of hurt, Chad searches for his one and only. Why? Because for him, the love heā€™s looking for is worth the wait. Itā€™s a beautiful sentiment that makes so-called hopeless romanticism the raddest feeling in the world sometimes. 

More importantly, Chad doesnā€™t let fear alter his view on love, and to me thatā€™s the most important lesson of this article. Love always comes with risks, and lowering your standards to reduce them never really pans out, does it? The best we can do is to be ourselves. 

By the way, this is a lesson I should also apply. My main hesitation toward an open relationship is that Iā€™m a jealous bitch, and I fear that jealousy will never go away. Yet this can be hard to admit when everyone around you is propping up a culture where open is supreme and jealousy is immature. 

When I brought this up to Kelsey, she pushed back with a simple question: ā€œDo you think jealousy is a bad thing?ā€ 

This caught me off guard. ā€œIā€™m not sure,ā€ I replied. ā€œDo you?ā€ 

ā€œJealousy is a natural, human emotion,ā€ she said. ā€œItā€™s what you do with it that matters.ā€ 

So, maybe my goal is not to suppress my jealousy but rather be upfront about it. If itā€™s part of me, I should own it, then ideally find someone who loves me regardless.  

Changing your mind is OK, too

In gay man speak, I was a top for my first seven years before I embraced bottoming. For some, theyā€™d be shocked to hear it. Yet maybe no one should be surprised, for as we all know sexuality is fluid, and this applies to more than just your orientation. Your sexual preferences can shift over time, too, and this will inevitably affect your relationships. 

This was the case for Scott and their partner. ā€œWhen we first started dating, we did not want to be open,ā€ they mentioned, ā€œbut as our relationship grew, we decided to reevaluate that.ā€ Meanwhile, Kelsey went the opposite direction ā€“ she was open back in the day but chooses to be closed now. 

Even Chad remains open to being open. ā€œIā€™m not opposed to an open relationship, but I feel like it would take more work. I just donā€™t see myself starting a relationship open. The first few years there is a lot of learning about each other.ā€ 

In a world of shifting preferences, the best we can do is reflect on what we want and be honest about it. Life is a process of discovering who we are, and damn is it messy. So, perhaps I should cut some slack to the couple trying things out. And perhaps they can cut me slack for not understanding their rules. 

For the couples: remember, a solid relationship is not only about meeting the needs of your partner, because your needs matter, too. The best relationships, open or closed, strive to find that balance. 

For those still searching: remember that love is more than just that thing, that connection, that spark. In fact, love is so complex that the ā€œsparkā€ is just one of many factors, alongside timing and how you want to be loved, that come together and form an imprint as unique and special as the person you want to be with.

In this sense, open and closed relationships arenā€™t diametrically opposed but rather complimentary, a sort of yin and yang where both become better because the other option exists. Today, we have options as couples, and thatā€™s significantly better than abiding by rules because we assume thatā€™s how it must be.

And that feels right. Because regardless of whether youā€™re more a Chad or a Scott, the truth is: I feel lucky to have both.  

(Writerā€™s note: A big thank you you to Chad, Scott, and Kelsey for allowing me to share their stories.)

Jake Stewart is a D.C.-based writer and barback.

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Fact: The next president will be Biden or Trump

One candidate is clearly better for the future of the world

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(Washington Blade file photos by Michael Key)

Like it or not, the next president will be either Joe Biden or Donald Trump. In our system, third-party candidates are simply spoilers, they donā€™t win. The last time a third-party candidate won was 1856. It has been 36 years since a third-party candidate even got more than 5% of the vote. So, itā€™s time to face reality and choose; for your future, do you want Biden or Trump? 

I was prompted to write this column because I see the media interviewing young people about who they want as their president. I have great respect for the young people of today. In many ways, they are smarter than my generation was. But itā€™s clear, some donā€™t fully understand the presidential election process. I hear many complain about Biden, and then follow that up and say they will never vote for Trump. Some then say they will vote for a third-party candidate. They need to understand their third-party candidate will not win, but their vote could help elect Trump. I hate to say it, but in 2024, voting for a third-party candidate is the equivalent to flushing your ballot down the toilet. 

I am an unabashed Biden supporter. I see the great things he has done, including: getting us through the fallout from the pandemic, passing an infrastructure bill, forgiving billions in student loans, ensuring our economy is the best in the world with more than 13 million jobs created, and increasing wages. He supports unions, being the first president to walk a picket line with the UAW. His administration is working to deal with climate change. He is fighting for a womanā€™s right to control her own body and healthcare, and supports full equality for the LGBTQ community. In this dangerous world he has kept our troops out of war.

Then there is Trump. To be clear; I see him as a racist, sexist, misogynistic, homophobic, pig. OK, so maybe I donā€™t have strong feelings about him. Trump has been found liable for sexual assault and has been indicted on 91 counts. He proudly claims credit for having taken away control of their body and healthcare from women, when the justices he appointed ended Roe v. Wade. He supports states making decisions on abortion, and we see what recently happened in Arizona. He is a climate change denier and is opposed to wind and solar power. He wants to give more tax deductions to the rich and to corporations, while opposing any increase in the minimum wage. He opposes equality for the LGBTQ community, refusing to endorse the Equality Act. He opposes student debt relief.

You may see these candidates differently, and that is OK. But if you like one more than the other, fear one more than the other, or just arenā€™t enamored by either, you must still make a choice and vote for one of them. Staying home is abrogating your civic responsibility, and especially if you would never vote for Trump, understand your staying home helps him. 

Young voters, like all voters, should take the time to do the research on both candidates. Then match what you find as close as possible to what you want to see as your future. If you want student loan relief, equality for the LGBTQ community, women having control of their body and healthcare, equal pay for women, efforts to ameliorate the impact of climate change, then clearly Trump is not your candidate. 

I hear some young people say they wonā€™t vote for Biden because of his positions on the Israel/Hamas war. I, too, have called for Israel to recalibrate how they fight this war. But I ask you to look again at Trumpā€™s history of attachment to Netanyahu, even going so far as relocating the U.S. embassy to Jerusalem. If you want a chance for the Palestinian people to live in peace and prosperity, for Israel to remove their settlements from the West Bank, your chance of having that happen is clearly better with Biden than Trump. Donā€™t let your emotions today, cloud the reality of the future.

Yes, Biden is old, but so is Trump. He apparently canā€™t even stay awake at his own trial having nodded off two days in a row.Ā  So, since one of them will be president, with no third-party candidate having a chance, I urge you to look at them again, in a realistic way. Then make your choice. I think you may come to the same conclusion I have. Though not perfect, and no one is, Biden is the better candidate for your future, and for the future of the world.Ā 

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

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Donā€™t avoid drug education on 4/20 day

Cannabis culture continues to grow in the District

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In 2023, the law was signed to expand the Districtā€™s medical cannabis program. It also made permanent provisions allowing residents ages 21 and older to self-certify as medical cannabis patients. Overall, cannabis is fully legal in D.C. for medical and recreational use, and 4/20 Day is widely celebrated. 

Medical cannabis, for example, has a long history with the LGBTQ community, and they have often been one of the oldest supporters of marijuana and some of the most enthusiastic consumers. Cannabis use also has a long history of easing the pain of the LGBTQ community as relief from HIV symptoms and as a method of coping with rejection from society. 

The cannabis culture continues to grow in the District, and as a result, so does the influence on younger people, even youth within the LGBTQ community. Drug education can play an important role and should not be avoided during 4/20 Day. Parents and educators can use drug education to help their kids understand the risks involved with using marijuana at a young age. 

According to DC Health Matters, marijuana use among high school students has been on the decline in the District since 2017. In 2021, it was estimated that around 20% of high school students use marijuana, a drop from 33% in 2017. Nationally, in 2020, approximately 41.3% of sexual minority adults 18 and older reported past-year marijuana use, compared to 18.7% of the overall adult population.

When parents and educators engage with their kids about marijuana, consider keeping the conversations age appropriate. Speaking with a five-year-old is much different than speaking with a teenager. Use language and examples a child or teen would understand. 

The goal is to educate them about the risks and dangers of using cannabis at a young age and what to avoid, such as edibles. 

Most important, put yourself in your kid’s shoes. This can be especially important for teenagers as they face different social pressures and situations at school, with peer groups, or through social media. Make a point of understanding what they are up against. 

When speaking to them about cannabis, stay calm and relaxed, stay positive, donā€™t lecture, and be clear and concise about boundaries without using scare tactics or threats. 

Yet, itā€™s OK to set rules, guidelines, and expectations; create rules together as a family or class. Parents and educators can be clear about the consequences without lecturing but clearly stating what is expected regarding cannabis use. 

Moreover, choose informal times to have conversations about cannabis and do not make a big thing about it. Yet, continue talking to them as they age, and let them know you are always there for them.     

Finally, speak to them about peer pressure and talk with them about having an exit plan when they are offered marijuana. Peer pressure is powerful among youth, and having a plan to avoid drug use helps children and students make better choices. Ultimately, it is about assisting them in making good choices as they age. 

Members of the LGBTQ community often enter treatment with more severe substance use disorders. Preventative measures involving drug education are effective in helping youth make good choices and learn about the risks.

Marcel Gemme is the founder of SUPE and has been helping people struggling with substance use for over 20 years. His work focuses on a threefold approach: education, prevention, and rehabilitation.

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