Opinions
Supreme Court poised to roll back LGBTQ rights
Rebalance stolen court via expansion, term limits
LGBTQ advocates were rightly relieved when the Supreme Court handed down Bostock v. Clayton County 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 dominance—with anti-LGBTQ justices holding a 6-3 supermajority—the fragile judicial coalition on which the movement for equality has relied is at significant risk of being cast aside.
Justice Amy Coney Barrett’s recent confirmation to the court is deeply concerning. Justice Barrett has defended Justice Roberts’ dissent in Obergefell, indicating that the issue of marriage equality should belong to state legislatures. She has repeatedly used transphobic and homophobic 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 – Justices Kavanaugh and Alito recently held an inappropriate private meeting with an anti-gay activist who had filed briefs in pending cases — 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: 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 of Obergefell, the landmark Supreme Court case in which Justice Kennedy’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: “By 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 a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’” 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: The currently pending case before the Supreme Court about discrimination is 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 (“CSS”), sued the city in federal district court. The federal district court found in Philadelphia’s favor, which the Third Circuit then unanimously affirmed. Nonetheless, the Supreme Court granted certiorari.
The CSS claims 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 “religious belief.” 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 in Fulton could provide cover for undermining Bostock, which extended Title VII protections to LGBTQ employees. An expansion of the religious liberty to discriminate could eat away at Bostock. Even a 5-4 court with Justice Kennedy ruled against LGBTQ rights in Masterpiece Cakeshop. Now, with a 6-3 conservative supermajority, Fulton could strike a big blow against equality.
Health care and family: 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 law’s non-discrimination provision, which bans discrimination in health care on the basis of sex. The Obama administration’s rule interpreted Section 1557’s ban on sex discrimination to include discrimination on the basis of sexual orientation and gender identity. In addition to Section 1557, the ACA as a whole has been enormously important for the LGBTQ community. The uninsured rate for lesbian, gay and bisexual Americans fell dramatically due to the ACA and LGBTQ adults have become more likely to report having regular access to health care. For transgender Americans, who are more likely to live in poverty or be unemployed and to face enormous challenges and have negative experiences accessing health care, the ACA’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.
Lawsuits challenging the Obama administration’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 reverse those protections, but it is widely expected that the Biden administration will revert to the Obama-era rule. Even if the ACA survives, this line of litigation could undermine critical protections for transgender individuals in the health care system. While the Supreme Court’s decision in Bostock v. Clayton County 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 nation’s hospitals are affiliated with religious organizations such as the Catholic Church, the court could seize on Justice Gorsuch’s language in Bostock suggesting that the Religious Freedom Restoration Act (RFRA) could trump Title VII to require broad religious exemptions from non-discrimination in health care.
Transgender rights: 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 driver’s license that accords with Mx. Saba’s gender identity. In August, a lower court preliminarily enjoined Idaho’s law that barred transgender women from participating on women’s sports teams. That decision is currently being appealed.
Just this past year, the Fourth Circuit and the Eleventh Circuit considered whether school bathroom policies violated transgender students’ rights. Though both circuits ruled in favor of the students, the Grimm case briefly reached the Supreme Court in 2017 before being sent back to the lower court. In 2019, the Supreme Court rejected certiorari in a case involving transgender bathrooms, leaving a lower court’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.
Opinions
‘Don’t Ask, Don’t Tell’ repeal serves as a guide for enacting equality legislation
Equality Act supporters should take cues from Senate moderates
Equality legislation is close to passing in Congress, but close isn’t good enough. “Close” won’t change anything for the LGBTQ Americans who face discrimination every day. Senate Democrats and Republicans must make a push to negotiate. With a reach on both sides to find common ground, we can move equality legislation from “close” to “done deal.”
Some Democrats are waiting for the filibuster to end—despite clear evidence that they lack the votes to end it. Some Republicans are practicing a tried-and-true brand of obstructionism. To break this deadlock, we should look to the successful, bipartisan repeal of “Don’t Ask, Don’t Tell” (DADT) as a guide.
The DADT repeal is the single reference point for LGBTQ advocates for overcoming the Senate filibuster. Other victories have been in the courts; notably, the Supreme Court’s 2015 Obergefell decision that made gay marriage legal nationwide.
Before Obergefell, advocates had success in the state legislatures. I worked on campaigns for the freedom to marry in Minnesota, New Hampshire, New York and elsewhere, finding common ground between Democrats and Republicans who thought it was impossible to negotiate on marriage. Eventually, enough people from both parties came together to pass marriage laws in a majority of states.
Working together at the state level is one thing. Congress is another.
Despite Democrats’ control of the White House, Senate and House, negotiations are failing at the federal level. So, we lets look to ancient history—the 2010 repeal of DADT—for guidance on reaching 60 votes in the Senate.
The most important lesson from the DADT repeal is that Senate moderates must champion the cause and lead negotiations. The more partisan figures on both sides need to step back. Overcoming the filibuster is a job for moderates, not ideologues.
As it happens, the hero of the DADT repeal is still a senator and can help. Republican Sen. Susan Collins of Maine led the negotiations on DADT repeal.
Senator Collins supports the Equality Act in principle and even sponsored a version of the bill in past. However, the current version is too extreme for Sen. Collins, as a result, she has withdrawn as a co-sponsor. The current bill has also foundered with Sen. Lisa Murkowski, another important figure in the repeal of DADT.
The fact that moderate, pro-LGBTQ senators are unable to back the current version of the Equality Act should send a clear message to Democrats that we need to make reasonable changes to the bill. So far, the message is being ignored.
On the Democratic side, independent Sen. Joe Lieberman was essential to the repeal of DADT. There certainly were passionate, liberal Democrats who could have asserted themselves during the debate. But then, the bill would have taken longer to pass, or even might have failed.
The lesson is clear. Listen to the moderates. Let them lead this charge.
Another important lesson from the repeal of DADT is to be flexible in the legislative strategy. DADT repeal was originally an amendment to a large defense authorization bill. Rather than give up, Collins and Lieberman fought and saved DADT repeal from defeat by pulling out key provisions they knew could pass on their own and making them a standalone measure. Repeal passed with bipartisan support.
The current version of the Equality Act tries to do too much. That’s why it can’t win support from moderate Republicans who have legitimate concerns the bill might suppress free speech or shut down religious charities.
Over 60 senators can agree on the basic premise of the Equality Act. They would gladly vote to prohibit discrimination against LGBTQ Americans in employment, housing, and public accommodations, so long as the law didn’t intrude on the First Amendment.
If the far left believes that our country has too much religious liberty, they can deal with that in future legislation. But so long as we have a filibuster—and, there’s no indication it will end any time soon—the Equality Act needs to reflect our society’s current views on religious liberty.
The DADT repeal passed with 65 votes in the Senate, overcoming the filibuster. Let’s replicate that victory by using the same playbook. Moderates: Take the lead.
Tyler Deaton is the senior advisor to the American Unity Fund, a conservative nonprofit organization working to advance LGBTQ freedom and religious freedom
Commentary
LGBTQ people are being hunted down in Afghanistan
Homosexuality punishable by death under Taliban Sharia law interpretation
Kabul was known as one of the few “liberal” cities in Afghanistan. The word liberal is in quotation marks, and inflected, because it is liberal compared to the rest of the country. Now that the Taliban has taken over, most people who expressed themselves differently and openly are forced to adhere to Sharia law, completely change their ways, hide their identity, or be killed.
The U.S. State Department reported in 2020 that even before the Taliban took power in August, LGBTQ people in Afghanistan faced “discrimination, assault and rape” and “homosexuality was widely seen as taboo and indecent.” Laws against lesbian, gay and transgender people made their existence illegal and punishable by up to two years in jail. Those laws were not always enforced, but they did leave LGBTQ people at risk of extortion and abuse by authorities, as reported by the U.K. government.
Even with the discrimination and abuse, LGBTQ people still had a sliver of space in society. Nemat Sadat, an LGBTQ Afghan author living in the United States said that gay, lesbian and transgender people helped the country’s cultural life develop since the Taliban’s last rule 20 years ago. But, most of these people built their lives quietly.
Now with the Taliban regime, their sliver of space in society is gone, there is no room to live quietly as an openly LGBTQ person. Under the Taliban’s interpretation of Sharia law, homosexuality is punished by death.
In an interview with Reuters, Waheedullah Hashimi, a top decision maker for the Taliban said, “there will be no democratic system at all because it does not have a base in our country,” and continued to say, “what type of political system should we apply in Afghanistan is clear. It is sharia law and that is it.”
One source spoke to a 20-year-old university student who is lesbian in Afghanistan. Her family accepted her as a lesbian, but now the new Taliban leadership has put the lives of all of her family at risk. There is a new surge of violence against any lesbian, gay and transgender people. This includes anyone speculated of being lesbian, gay, or trans, and those who support them.
This young lesbian woman has gone into hiding. She is part of hundreds of LGBTQ people in Afghanistan who are pleading with advocates and organizations outside Afghanistan for help to escape the Taliban tyranny.
Nemat Sadat shares stories of lesbian, gay and trans people in hiding. He shared a story of a gay man who watched from his hiding place in the ceiling as Taliban fighters beat the friend who refused to disclose his location.
LGBTQ people in Afghanistan fear the risk of being arrested, beaten and killed. The Taliban made it clear that it is enforcing its strict religious laws against Afghanistan’s LGBTQ citizens. In an interview with Germany’s Bild newspaper, one Taliban judge said there were only two punishments for homosexuality: “stoning or being crushed under a wall.”
LGBTQ people in Afghanistan are reporting that their friends, partners and members of their community are being attacked and raped. They also stated that Islamic fundamentalists and riotous groups are encouraged by the new tyranny and are on the hunt for LGBTQ people.
Another source shared that a gay man was targeted for his sexuality and then raped by his male attackers. That is a terrible paradox. He was raped by his male attackers, who criminalizing him for having same sex relations.
LGBTQ people are in hiding, desperately trying to get out of the country, and trying to erase any proof of their queer identity.
They feel abandoned by the international LGBTQ community. The Taliban is proving that the Western nations have normalized relations to their government. The Taliban and their supporters see this a proof of their victory. This leaves LGBTQ people defeated and fearing torture and death.
The U.S. government and other Western countries evacuated many people out of Afghanistan, including journalists, women’s rights activists and those who worked with foreigners. But, LGBTQ activists said that nothing has been done for them. A source says about her situation, “we will definitely be killed. We are asking to be evacuated immediately from Afghanistan.” To date, no safe route has been found.
Even underground measures to help LGBTQ people are challenging and near impossible. The Rainbow Railroad is a non-governmental organization helping LGBTQ people around the world escape persecution. Executive Director Kimahli Powell said evacuating LGBTQ people from Afghanistan is especially hard as they are often alone, in hiding, and unable to contact each other. If routes to get them out is nearly impossible, that still means those routes are somewhat possible. As difficult as it may be, we must find pathways to save these people and get them out.
The Taliban regime has established itself, knowing with certainty that the world will stand aside, albeit condemning and protesting, but not intervening. This is empowering jihadists across the world, especially in the Middle East. The Taliban has many allies and admirers, including the Palestinian Islamic Jihad (PIJ) and Hamas.
The leader of Hamas, Ismail Haniyeh, travelled from Palestinian territories to meet with Taliban leaders in Qatar. The Palestinian Islamic Jihad has a history of ties to the Taliban, even with radicals joining each other’s organizations. Very public statements of congratulations were made between leaders of the Taliban, Hamas, and Palestinian Islamic Jihad, and all with full Iranian support.
The increase in brazen forcefulness of these groups reaches beyond Afghanistan, and spreads to the lands dominated by other similar groups. This causes an escalation of the threats to anyone who opposes Sharia law or who lives differently than what Sharia law allows. LGBTQ people in these lands are in peril.
If we do not help LGBTQ people in Afghanistan, the lives of LGBTQ people under other similar tyrannies face increased uncertainty and danger.
Since posting this video, I have been receiving direct messages from LGBTQ people in hiding in Afghanistan, and those who are seeking to be evacuated. They all share harrowing experiences of being attacked, raped, and threatened by Taliban, Islamic State and bullying groups.
Yuval David is an innovative actor, host and filmmaker with a creative mantra to entertain, uplift and inspire. He is a captivating performer and compelling storyteller who uses his platform for sharing narratives that affect social change, specifically on behalf of highly respected U.S. and international organizations that raise awareness for the marginalized and under-represented, inspired by his LGBTQ+ and Jewish identity, and his Israeli-American roots.
He can be reached through social media
As a former city commissioner for nine of the past 15 years, I have seen a lot of changes in the laws and decisions governing the city of Rehoboth Beach. Like most things in life, some have been good and some have been not so good. The ones that have been good for the city plan for the future. The ones that have been bad for the city try to hold on to the past. The city of Rehoboth Beach has been a magnet for tourists for a long time and that has not changed, nor can it be changed. Trying to stifle our business community will not decrease the numbers that come to our city but will only frustrate our residents and visitors by putting into place ordinances that will promote the construction of buildings that lack functional architectural creativity. Worse, discouraging business innovation will drive businesses to Route 1, resulting in vacant storefronts along our commercial streets that will ultimately increase costs to residents in terms of higher taxes, provision of basic services, and increased utility fees.
On Oct. 15, a public hearing will be held regarding patchwork changes to the zoning code. The proposed changes have been put forth as “clarifications”. They are NOT clarifications but changes that will change the downtown commercial districts for generations to come. And not in a good way.
This may seem like an over-reaction but truly it is not. Not to over-simplify, but the basic zoning code that applies to commercial buildings allows for construction of a building from lot line to lot line with a maximum height of 42 feet. The proposed changes/clarifications would count interior courtyards and elevator shafts. These changes do not change the bulk of a building but could very well disincentivize desired architectural enhancements, such as balconies and courtyards. In this day and age of COVID, open space should be promoted not penalized. Why would we stifle architects with ideas for buildings that embrace creative use of a parcel of land? The effect of the proposed changes on the new hotel projects that are currently being designed warrants involvement by everyone who wants to make sure that Rehoboth Avenue does not end up showcasing buildings with zero architectural interest.
It is important to remember that the one square mile of the city of Rehoboth Beach is not a suburban community, nor is it a retirement community. It is a city that hosts tens of thousands of visitors eight to nine months a year with a vibrant restaurant scene, beach and boardwalk, farmers market, recreational dock, and hopefully one day a performing arts center. What can you do? Send an email by Oct. 15 to [email protected], asking the mayor and city commissioners to pause making these patchwork changes to the city code, changes that will have negative unintended consequences for years to come. Ask them to do what was programmed in the budget over a year ago—to hire a zoning expert to look holistically at the city ordinances and make practical, coordinated changes that incentivize development that sustains the aesthetics and prosperity of our town.
Pat Coluzzi is a former city commissioner for the city of Rehoboth Beach.
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