Connect with us

News

ENDA’s religious exemption still concerning as vote nears

Brown says religious exemption should be same for LGBT workers as other categories

Published

on

Sherrod Brown, Democratic Party, Ohio, gay news, Washington Blade, United States Senate
Sherrod Brown, Democratic Party, Ohio, gay news, Washington Blade, United States Senate

Sen. Sherrod Brown believes the religious exemption in employment discrimination law should be the same for LGBT workers as with other categories (D-Ohio) (Photo public domain).

Shortly after filing cloture on the Employment Non-Discrimination Act, Senate Majority Leader Harry Reid (D-Nev.) held a 30-minute conference call with Nevada LGBT leaders late Thursday in anticipation of the bill coming to the Senate floor this week.

Among those on the call was Derek Washington, lead organizer for the LGBT group GetEQUAL Nevada, who said he raised with Reid concerns about ENDA’s religious exemption.

That language would provide leeway for religious institutions, like churches or religious schools, to discriminate against LGBT workers in non-ministerial positions even if ENDA were to become law. It’s broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.

“I mentioned to him that it was something that just was not palatable,” Washington said. “I asked him what he felt about it, and he felt that the main thing to do was get the vote taken care of, and then deal with it later. As often times happens, you don’t get something perfect the first time around, you go back and fix it later, so that was basically his take on it.”

That account was corroborated by Faiz Shakir, a Reid spokesperson, who said the Democratic leader understands the concerns, but wants to get the bill passed first, then go back and address the exemptions.

“Sen. Reid’s first priority is to pass the strongest possible legislation which can garner 60 votes,” Shakir said. “He believes the current legislation meets that test.”

Washington was unfazed by Reid’s response that the religious exemption won’t see change before passage, insisting the Nevada Democrat is one of the greatest champions for the LGBT community, noting, among other things, he was the first elected official to endorse the National Equality March in 2009.

“I think it would a shame to write a story about any of this without mentioning that that man is a hero to us, and I don’t think people get that,” Washington said.

That symbolizes the situation with narrowing the broad religious exemption in ENDA before the Senate approves the bill. Despite concerns that it’s too expansive, the idea of limiting it at this time — such as the amendment process — isn’t getting a lot of traction either from LGBT advocates or lawmakers.

Instead, those with concerns over ENDA’s religious exemption have more modest aspirations: Get LGBT friendly lawmakers in the Senate to speak out against the language on the Senate floor.

Ian Thompson, legislative representative for the American Civil Liberties Union, is among those saying he’s not seeking an amendment to religious exemption on the Senate floor, but wants the provision addressed in some way.

“By doing that, it’s certainly our hope more and more pro-equality members of Congress and their staff will come to understand the potential harm of the current exemption, and I think we’ll see growing support for narrowing it moving forward,” Thompson said.

Thompson added he’s “definitely hopeful” that senators will speak out against the exemption of the floor, but declined to name any prospects for who would articulate concerns.

Heather Cronk, co-director of GetEQUAL, said her organization “didn’t anticipate” being able to change the religious exemption, but is looking for senators to speak out against the language.

“What we were hoping for for — which hasn’t happened yet because the senators haven’t gone to the floor yet — is for some of the more progressive senators to speak out from the floor against the religious exemption,” Cronk said. “So, we’ll wait and see what happens on the floor to see if we get those statements.”

GetEQUAL has petitioned four senators with a reputation for being champions of progressive values — Sens. Kirsten Gillibrand (D-N.Y.), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio) and Al Franken (D-Minn.) — to speak out against the religious exemption. As of Sunday, the petition has just under 6,000 signatures.

It remains to be seen whether any senator will speak out in favor of limiting the religious exemption when ENDA comes to the Senate floor this week. Of these four senators, the only office who responded to the Washington Blade’s request to comment on the extent of the religious exemption was that of Brown.

Meghan Dubyak, a Brown spokesperson, said the senator’s focus is passing is ENDA, although he shares the belief the religious exemption for LGBT discrimination should be the same it is for other categories.

“Sen. Brown’s top priority is overcoming a likely filibuster and ensuring passage of ENDA,” Dubyak said. “He believes the religious exemption in ENDA should be consistent with the federal law that currently protects people against discrimination.”

In July, Gillibrand said during a Third Way event that said she’d go even further and amend ENDA to remove the religious exemption. However, her staffers have apparently backtracked from that statement as they’re now mum on the issue.

For its part, the White House is staying out the argument over the religious exemption. Shin Inouye, a White House spokesperson, reiterated in an email weeks ago President Obama supports ENDA, but is leaving the details to Congress.

“We look forward to lawmakers moving forward on this bill that upholds America’s core values of fairness and equality,” Inouye said. “While we defer to Congress on the specifics of the legislation, we believe lawmakers will be able to find a balance that protects LGBT workers and religious liberty.”

Since the introduction of ENDA this year, the ACLU has called for narrowing the religious exemption along with groups like GetEQUAL, the National Center for Lesbian Rights, Lambda Legal and the Transgender Law Center, the National Gay & Lesbian Task Force.

On the other hand, groups working on like Freedom to Work, the Human Rights Campaign and the Center for American Progress have endorsed the current exemption in ENDA.

Tico Almeida, president of Freedom to Work, co-wrote the religious exemption currently found in ENDA while working as a House staffer in 2007. Neither he nor HRC responded to multiple requests to comment for this article.

Winnie Stachelberg, vice president of external affairs for the Center for American Progress, said the religious exemption is necessary to enable bipartisan support to move the bill forward.

“The current religious language reflects a bipartisan compromise that represents a pragmatic balance between ensuring that LGBT workers have the protections they need and organizations,” Stachelberg said. “While the religious exemption is broader than other civil rights statutes it will ensure that LGBT workers have the protections they need.”

If anything, the movement in the Senate on ENDA’s religious exemption this week may be more toward expanding it even further.

Sen. Rob Portman (R-Ohio), seen as a potential supporter of ENDA, has said he’s behind the basic premise of the legislation, but has concerns about restrictions on religious liberties and wants to strengthen the bill to ensure they’re protected.

Prior to the committee vote on ENDA in July, Sen. Rand Paul (R-Ky.) had prepared an amendment that would replace the bill’s religious exemption with more comprehensive language for religious employers. It was never brought up before the committee. Paul’s office didn’t respond to a request to comment on whether the senator would introduce the amendment on the Senate floor.

Concerns over the existing religious exemption were ramped up last month when Tippi McCullough, formerly a teacher for 15 years at Mount St. Mary Academy in Little Rock, Ark., was forced to resign after the school learned she had married her same-sex partner in New Mexico. Because the school is a religious institution, it would not be subject to liability under ENDA.

Thompson said the consequences of passing ENDA with its current exemption in place are hard to predict, but said it would be “a dramatic, and from our view, and very troubling expansion of an exemption like this in our federal civil rights law.”

“I think that it wouldn’t be too into the future before we saw instances of employment discrimination occurring against workers who should be protected from employment discrimination and may find out that because the scope of the existing religious exemption that they may not be,” Thompson said.

LGBT advocates who oppose the religious exemption chose their words carefully about whether they want to see ENDA passed this year with the current language — as opposed to letting it die in Congress so that it could be passed with a narrow exemption at a later time.

Thompson said the ACLU has been a “longtime champion of ENDA” because of the protections in the bill “are critically important and long overdue.”

“We’ve endorsed it, so that’s a position that we’ve taken,” Thompson said. “We have consistently, also though, raised concerns about the scope of the religious exemption and said that that is should be appropriately narrowed ultimately before it ends up on the president’s desk, and that’s our view, but at the same time because of the protections that it would afford to LGBT people are so important and so needed, we also support the bill.”

Cronk said GetEQUAL neither supports nor opposes the bill and believes “any time that that pro-LGBT legislation comes up in Congress, we want that legislation to move forward.”

“Our organizers didn’t feel good about organizing in support of the bill because there wasn’t that change to the religious exemption and because the grassroots network we work with feel the impact of that everyday,” Cronk said. “They work in hospitals in the closet, or they teach at schools where they’re in the closet, and they have a really clear sense about who would be left behind by this legislation, and didn’t feel that was in line with our vision.”

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

National

‘They took him!’ Gay married couple torn apart by ICE

As Alan Marrero remains in ICE custody, his husband Matt continues to fight tirelessly for his release.

Published

on

Alan Marrero and Matthew Marrero (Photo courtesy of the couple)

For 113 days, Alan Marrero has been in U.S. Immigration and Customs Enforcement (ICE) custody, while his husband, Matthew Marrero, has been using every available avenue to secure his release.

Since Nov. 24, 2025, Alan—originally from the Cayman Islands—has been held at multiple detention facilities across the United States. His detention began after what was meant to be a routine, good-faith marriage-based green card interview at Federal Plaza in New York City, marking two years of marriage with Matthew.

Advocates, including Rev. Amanda Hambrick Ashcraft, Rev. Dr. Jacqui Lewis, and attorney Alexandra Rizio, have been actively involved in supporting the couple and navigating the legal challenges posed by ICE and the Department of Homeland Security (DHS). The case highlights the Trump-Vance administration’s aggressive use of immigration enforcement to detain and deport individuals, even in circumstances where applicants have established legal claims to remain in the U.S.

Timeline of Alan’s detainment

On Nov. 24, Alan and his husband Matt arrived at 26 Federal Plaza in New York City for what was supposed to be a routine, marriage-based green card interview. They were accompanied by Rev. Amanda Hambrick Ashcraft, a minister from Middle Church in Manhattan, where the couple attended and Matthew sang in the choir.

They arrived early for their 8 a.m. appointment, prepared and hopeful. Despite growing news coverage about increased immigration enforcement under President Donald Trump, they believed in the process and felt confident they had done everything right.

“They brought with them a three-inch binder documenting their entire life together—photos, letters, legal records, and other evidence,” Ashcraft said.

“From the moment you get to Federal Plaza, the process is extremely traumatic—and that’s by design,” she explained. “There’s nothing warm or intuitive about it. It’s dehumanizing, and parts of it feel barbaric.”

Immediately after meeting the USCIS officer, something felt off.

“We came with a three-inch binder of our entire life—photos, letters, everything,” Matt said. “We were dressed up, ready, confident we had done everything right. The first thing she said was, ‘I don’t want that. Take it all apart.’ That was the moment I knew something wasn’t right.”

The officer then asked the couple for their passports—something neither of them had on hand. That seemed to be strike two, signaling that, just as with previous steps in this process, the interview was already off course because of the woman behind the desk.

As the couple was told to move to a new room for their interview, Ashcraft was denied entry with them. This struck all three as odd; Ashcraft had attended immigration and green card interviews before to provide spiritual guidance and bolster claims of legitimacy, with no issues. Coupled with the initial hostility over the binder, it was a clear sign that the day would not go as hoped.

“There’s no real policy—it’s whoever is in front of you deciding what the rules are at that moment,” Ashcraft added. “Whatever they say goes. That’s what makes it so dangerous.”

Inside the tightly controlled interview, tensions escalated.

“I looked over at my husband when she asked how we met—just instinct. He’s the love of my life,” Matt said. “She snapped her fingers in my face and said, ‘Don’t look at him.’ We’re telling our love story, and I’m not even allowed to look at my husband.”

The officer then raised questions about a missed immigration hearing for Alan in 2022. 

Alan had lived in the United States since 2013 and had been diligent about maintaining his legal status and personal growth. During that time, he had entered a rehabilitation program for alcohol addiction—a commitment that, coincidentally, caused him to miss the scheduled court hearing. Medical records explained by Alexandra Rizio, Alan’s attorney, corroborate this.

Because the judge did not know Alan was in rehab, a removal order was issued in his absence.

“He didn’t realize that he had a removal order in his name,” Rizio, the Make the Road New York attorney, explained. “When you have a removal order, it means ICE can pick you up at any moment. He walked into that interview completely unaware that he was at risk of being arrested on the spot.”

Alan Marrero and Matthew Marrero (Photo courtesy of the couple)

The officer acknowledged that their marriage was legitimate but denied Alan’s green card application. She told them they would need to appear before an immigration judge, signaling that his journey to legal status was far from over and still subject to the whims of others.

“She told us, ‘Out of the goodness of my heart, I’ll let you leave today. I could have called ICE, but I won’t,’” Matt recalled. “My husband started crying, I was a wreck.”

Despite that comment, the couple was escorted through a series of back hallways. Alan’s file was handed off to ICE officers, and the supervisor walked away.

“They walked us down this long hallway, took his file, handed it to ICE agents, and just left. No explanation, no warning. Suddenly they’re telling him to put his hands behind his back, and I’m standing there asking, ‘What is happening?’”

The gravity of the situation escalated.

“He was crying, I was crying, we were hugging, and I kept saying, ‘It’s going to be okay,’” Matt said. “And then they just pulled him away into an elevator and left me there. It happened so fast it didn’t even feel real.”

A supervisor entered briefly to distinguish between what could be controlled inside the office and what could not be controlled outside. Rizio called this a deliberate choice to intensify the emotional pressure.

“What the officer could have done was say, ‘You have a removal order—go hire a lawyer,’” Rizio said. “That would have been the humane and reasonable response. Instead, ICE was called, and they arrested him.”

Outside the room, Ashcraft heard the chaos unfold.

“The next thing I heard was Matthew screaming down the hallway: ‘Amanda! Amanda! They took him!’” she recounted. “That’s how it happened—just like that, after everything they had prepared.”

For the next 36 hours, Matt had no information about his husband’s whereabouts.

“For 36 hours, I had no idea where my husband was,” he said. “No phone call, no information, nothing. It felt like he had just disappeared.”

The following morning, Matt’s mother and sister drove down from Connecticut to help. They returned to Federal Plaza with Alan’s anxiety medication and contact information, only to be told minutes later that Alan was no longer there. The couple could not locate him through the ICE online system. Only after contacting an attorney did they learn he had been transferred to Delaney Hall, a detention facility in New Jersey.

Matt and Alan’s mother drove to Delaney Hall in Newark, an industrial area where families—including children—waited in the rain. Inside, staff initially insisted Alan was not present, despite documentation proving otherwise. After long delays, they were finally allowed to see him.

This was the first time Matt felt the point-blank homophobia of the detention system.

“When I finally saw him, they told us we couldn’t touch,” Matt said. “I’m watching straight couples kiss and hold each other, but I can’t even hold my husband’s hand.”

“You ripped my husband away, didn’t tell me where he was for 36 hours, and now I’m not allowed to console him?” he added. “It was so cold—it felt completely inhuman.”

Conditions inside detention quickly became grueling.

“He was moved in the middle of the night, chained at his wrists and ankles, not told where he was going,” Matt said. “They kept the cuffs on for days—he had cuts and bruises.”

“The worst part isn’t even the facilities—it’s the transport,” Matt continued. “You’re chained like an animal, trying to eat a bologna sandwich and drink water while shackled. You can barely move your body.”

Alan remained at Delaney Hall for approximately two weeks. One night, he told Matt that groups of detainees were being taken out in the middle of the night without warning. Shortly afterward, he was among them.

Around 12:30 a.m., Alan called to say he was being moved. He and others were gathered in a visitation room and held for hours without food or beds. By midday, they were shackled again, loaded onto transport, and flown out of state. His location once again disappeared from the ICE tracking system.

Over the next several days, Alan was moved through multiple locations, including a holding area near an airport in Phoenix, where detainees were kept in overcrowded, tent-like enclosures without seating. He remained in restraints for extended periods and was denied access to his medication.

From there, he was transferred through facilities in Texas and Louisiana before ultimately being sent to a remote detention site in the Florida Everglades, informally known as “Alligator Alcatraz.”

Conditions there were severe. Detainees were held in cages with dozens of men in each enclosure. Sanitation was poor, with overflowing toilets near sleeping areas. Exposure to the elements and limited access to medical care caused Alan’s health to deteriorate. Phone calls were limited to short, scheduled windows.

“He told me about being in a cage in the Everglades—30 men, toilets overflowing next to where they sleep,” Matt said. “There were signs about poisonous snakes, and he said, ‘If one shows up, I’m going to die—there’s nobody here.’”

“ICE officers would tell them, ‘You’re a burden to your family. Just sign your self-deportation papers,’” Matt added. “He would call me crying, saying, ‘Just let me go, forget about me.’ That’s psychological warfare.”

Ashcraft reflected on the system’s cruelty.

“At every step, it feels designed to be as insular, as cruel, and as impenetrable as possible,” she said. “At every turn, we’re seeing a new kind of cruelty…Someone will say, ‘They can’t do that,’ and we have to say, ‘Actually, they are.’”

Eventually, Alan was transferred to a detention facility in Natchez, Miss., where conditions were more stable and he was finally able to receive his prescribed medications. Around this time, his legal case began to shift.

His attorney submitted documentation showing that the missed 2022 hearing had occurred while he was in a verified rehabilitation program. The same immigration judge who had issued the original removal order agreed to reopen the case and rescinded that order, restoring Alan’s standing.

“The judge agreed with us and granted bond. At that point, we thought he would be released and we could move forward. That’s how the system is supposed to work,” Rizio said.

In early February, a bond hearing was scheduled. Matt traveled to Mississippi in anticipation of Alan’s release. The legal team presented extensive documentation, including letters of support from members of Congress, as well as evidence of Alan’s marriage and community ties.

Instead of releasing him, ICE exercised its authority to place a 10-day hold while considering an appeal. During that time, Matt remained in Mississippi, visiting Alan regularly.

“ICE decided to just ignore that and not release him. They used something called the ‘auto stay’ provision to keep him locked up anyway,” Rizio said. “It’s essentially them saying, ‘We don’t like the judge’s order, so we’re not going to follow it….That feels crazy—because it is crazy. There’s no real statutory basis for it. It’s a regulation that allows them to operate outside the bounds of what the law actually says.”

Before the hold period ended, a second immigration judge became involved. Without reviewing the full evidence or receiving a newly filed green card application, the judge issued a decision in advance.

“A completely different judge—who isn’t even an immigration specialist—stepped in and denied an application that wasn’t even before him,” Rizio explained. “I have never seen anything like that in 14 years of practice.”

She has argued that the decision was procedurally improper and legally flawed.

“He decided, based on rehab records showing recovery and sobriety, to label Alan a ‘habitual drunkard.’ He cherry-picked information and ignored the evidence that he had successfully completed treatment.”

When the 10-day hold expired, Alan’s legal team attempted to secure his release again, but ICE cited the new ruling to continue detaining him. By that point, Alan had been in detention for more than 100 days.

“He could have walked out of detention with a green card,” Rizio said. “Instead, he’s still sitting in detention because of actions that simply shouldn’t have happened.”

“None of what I just described reflects a system that cares about justice,” she said. “It feels like punishment. I feel very confident these actions are designed to make people give up… Alan has already lost over three months of his life. He’s never going to get that time back.”

“We did everything right,” Matt said. “We followed the law, built a life, got married, had a clear pathway to citizenship. And now my whole life is on pause. If someone wants to understand this, imagine someone coming in and kidnapping the person you love most—taking away all your control. That’s what this feels like.”

Alan remains in detention in Natchez while legal challenges move forward. Throughout his time in custody, detainees have reported being pressured to accept voluntary deportation, often being told they are burdens to their families. Despite the mounting legal and emotional toll, Alan continues to fight his case from inside detention, while his family and community advocate for his release on the outside.

The couple has set up a Go-Fund-Me to help with the financial costs of this ongoing situation.

The Blade contacted ICE and DHS for comment but did not receive a response.

Matthew Marrero and Alan Marrero (Photo courtesy of the couple)
Continue Reading

District of Columbia

Man charged with carjacking, kidnapping after having sex in D.C. park pleads guilty

Arrest followed year-long investigation into incident at Fort Dupont Park

Published

on

Da’Andre Pardlow pleaded guilty to unarmed carjacking and possession of a firearm in connection with a 2024 robbery and carjacking. (Photo by Sergei Gnatuk via Bigstock)

A D.C. man initially charged with armed carjacking, armed kidnapping, and armed robbery of a male victim he met and with whom he engaged in sex at D.C.’s Fort Dupont Park in September 2024 pleaded guilty on March 12 to two lesser charges as part of a plea bargain deal offered by prosecutors.

Records filed in D.C. Superior Court show that Da’Andre Pardlow, 31, who has been held in jail since the time of his arrest in December 2025, pleaded guilty to unarmed carjacking and possession of a firearm during a crime of violence. Court records show the agreement includes a recommendation by prosecutors that Pardlow be sentenced to seven years in prison.

The agreement allows him to withdraw the guilty plea if the judge rejects the sentencing recommendation and calls for a harsher sentence. He is scheduled to be sentenced by Superior Court Judge Robert Salermo on May 29.

Details of the incident that led to Pardlow’s arrest and guilty plea are included in a 12-page arrest affidavit prepared by U.S. Park Police detective Christopher Edmund, the lead investigator in the case.

According to the affidavit, which is part of the public court records, Park Police received a call at approximately 6:30 a.m. on Sept. 13, 2024, regarding an armed robbery that occurred around 3 a.m. that day at D.C.’s Fort Dupont Park. The affidavit says Park Police officers drove the person who called, who is identified only as Victim 1 or V-1,  from his residence to the Park Police Anacostia Operations facility where he was interviewed.

“V-1 reported that they were at their residence at approximately 2:30 a.m. on September 13, 2024, and decided to drive to Fort Dupont Park in hopes of meeting a man for a sexual encounter,” the affidavit states. “V-1 arrived at Fort Dupont Park at approximately 3:00 a.m. and parked their vehicle on the south side of Alabama Avenue, SE, in Washington, D.C. adjacent to the park entrance,” the affidavit continues.  

It says the victim stated the park was empty and he decided to leave, but while walking back to his car he encountered a black male appearing in his 20s or 30s and gave a full description of the man’s appearance and clothing, saying he was wearing a ski mask. 

“V-1 and the male conversed and agreed to engage in consensual sexual acts on a bench under the pavilion near the restroom,” the affidavit says. It says V-1 then told detectives that the man, who is initially identified only as Suspect 1 or S-1, “had ejaculated onto V-1’s face. V-1 then used a napkin that he found on the ground nearby to wipe S-1’s semen from V-1’s face. V-1 then discarded the napkin on the ground.”   

The affidavit states that investigators later recovered the napkin and through DNA testing linked the semen to Pardlow. But prior to that, it says during their sexual encounter in the park V-1 agreed to suspect 1’s request that he take off all his clothes.

“When V-1 disrobed, S-1 got behind V-1 and held a hard, metal item that V-1 believed to be a handgun, to the back of V-1’s head,” according to the affidavit. It says V-1 added that S-1 “threatened to shoot him ‘over and over again’” if he did not comply with S-1’s demands to surrender his phone and wallet, provide the code to access the phone, and then to take possession of and drive V-1’s car to a nearby bank, with V-1 sitting in the passenger’s seat, to withdraw money from V-1’s bank account. The affidavit says he withdrew $500 from V-1’s account at a Bank of America ATM at 3821 Minnesotta Ave., NE.

“S-1 then drove V-1 back to the park and told them to get their clothes, which were still in the pavilion area,” the affidavit says. “When V-1 exited the vehicle, S-1 drove out of the park in V-1’s vehicle at a high rate of speed toward Massachusetts Avenue,” it says. “V-1 walked back to their residence and contacted the police.”

The affidavit says that over the course of the next several months investigators used tracking devices linked to V-1’s car, cell phone, and Apple Watch that Pardlow had taken to locate the car and a residence where Pardlow was possibly living.

The Park Police investigators also pulled up FBI DNA records to identify a suspect that matched the DNA sample taken from the napkin V1 used at the park to a man arrested in Prince George’s County, Md., on an unrelated charge of Use of a Firearm In A Violent Felony. That person turned out to be Da’Andre Pardlow, the affidavit states.

It says investigators obtained additional evidence linking Pardlow to the park incident involving V-1, including video images of his face from a Bank of America security camera at the time he withdraws money from V-1’s ATM account. A tracking of Pardlow’s own mobile phone also placed him at the site of the park at the time of his alleged interaction with V-1.

When Park Police detectives first interviewed Pardlow at the Eastern Correctional Institute prison in Westover, Md., where he was being held in connection with the unrelated firearm arrest, “he denied having ever been to Fort Dupont Park since he was in high school and said that he had no involvement in this incident,” the affidavit says.

Court records show a warrant was obtained for his arrest on Nov. 25, 2025, for the Fort Dupont incident and he was officially charged on Dec. 17, 2025, with Armed Carjacking, Robbery While Armed, and Kidnapping While Armed. 

Pardlow’s attorney, Patrick Nowak, couldn’t immediately be reached for comment on Pardlow’s decision to plead guilty to the lesser charges of Unarmed Carjacking and Possession of a Firearm During A Crime of Violence, with the other charges being dropped by prosecutors with the Office of the U.S. Attorney for D.C. 

Continue Reading

Botswana

The rule of law, not the rule of religion

Bonolo Selelo and Tsholofelo Kumile are challenging the Botswana Marriage Act

Published

on

(Bigstock photo)

Botswana was in a whole frenzy as religious and traditional fundamentalists kept mixing religion and constitutional law as if it were harmless. It is not. One is a private matter of belief between you and God, while the other is the framework that protects and governs us all. When these two systems get fused, the result is rarely justice. It results in discrimination. 

The ongoing case brought by Bonolo Selelo and Tsholofelo Kumile challenging provisions of the Botswana Marriage Act has reignited a familiar debate in Botswana. Some commentators insist that marriage equality violates religious values and therefore should not be recognized by law. It is a predictable argument. It is also fundamentally incompatible with constitutional governance.

Botswana is not a Christian state. It is a constitutional democracy governed by the Constitution of Botswana. That distinction matters. In a constitutional democracy, laws are interpreted in accordance with constitutional principles such as equality, dignity, protection, inclusion and the rule of law, rather than the doctrinal beliefs of any particular religion.

Religion has no place in constitutional law and democracy

The central problem with religious arguments in constitutional disputes is simple in that they divide, they other, they contest equality and they are personal. Constitutional law by contrast, must apply equally to everyone.

Botswana’s Constitution guarantees fundamental rights and freedoms under Sections 3 and 15, including protection from discrimination and the right to equal protection of the law. These provisions are not conditional on religious approval. They exist precisely to protect minorities from the preferences or prejudices of the majority.

Legal experts, such as Anneke Meerkotter, in her policy brief in Defense of Constitutional Morality, point out that constitutional rights function as a safeguard against majoritarian morality. If rights depended on whether the majority approved of a minority’s identity or relationships, they would not be rights at all. They would merely be privileges.

This principle has already been affirmed in Botswana’s jurisprudence. In the landmark decision of Letsweletse Motshidiemang v Attorney General, the High Court held that criminalizing consensual same-sex relations violated constitutional protections of liberty, dignity, privacy, and equality. This judgment noted that constitutional interpretation must evolve with society and must be guided by human dignity and equality. The court emphasized that the Constitution protects all citizens, including those whose identities, expressions or relationships may be unpopular. That ruling was later upheld by the Court of Appeal of Botswana in 2021, reinforcing the principle that constitutional rights cannot be restricted on grounds of moral disapproval alone. These decisions were not theological pronouncements. They were legal determinations grounded in constitutional principles.

The danger of religious majoritarianism

When religion is used to justify legal restrictions, the result is what constitutional scholars call “majoritarian moralism.” It allows the dominant religious interpretation in society to dictate the rights of everyone else. That approach is fundamentally incompatible with constitutional democracy. Botswana is religiously diverse. While Christianity is the majority faith, there are also Muslims, Hindus, traditional spiritual communities, Sikh and people who practice no religion at all. If the law were to follow the doctrines of one religious group, which interpretation would it adopt? Christianity alone contains dozens of denominations with different views on love, equality, marriage, sexuality, and gender. The moment the state begins to legislate on the basis of religious doctrine, it implicitly privileges one belief system over others. That undermines both religious freedom and constitutional equality. Ironically, keeping religion separate from constitutional law is what protects religious freedom in the first place.

Judicial independence is the cornerstone of Botswana’s governance system

The current case involving Bonolo Selelo and Tsholofelo Kumile is before the judiciary, where it belongs. Courts exist to interpret the Constitution and determine whether legislation complies with constitutional rights. Political and religious lobbying, as well as public outrage, must not influence that process.

Judicial independence is the cornerstone of Botswana’s governance system. According to the International Commission of Jurists, judicial independence ensures that courts can make decisions based on law and evidence rather than political or social pressure.

When governments, political, religious, or traditional actors attempt to interfere in constitutional litigation, they weaken the rule of law. Botswana has historically prided itself on having one of the most stable constitutional systems in Africa. The judiciary has played a critical role in safeguarding rights and maintaining legal certainty. The decriminalization case demonstrated this. Despite strong public debate and political sensitivity, the courts assessed the law according to constitutional principles rather than moral panic. The same standard must apply in the current marriage equality case.

This article was first published in the Botswana Gazette, Midweek Sun, and Botswana Guardian newspapers and has been edited for the Washington Blade. 

Bradley Fortuin is a consultant at the Southern Africa Litigation Center and a social justice activist.

Continue Reading

Popular