Category: gay rights

Will Obergefell Survive The New Supreme Court?

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Will Obergefell survive the new Supreme Court

Will Obergefell survive the new Supreme Court?

This is the greatest concern / fear of many in the LGBTQ community.  From the moment we learned of the heartbreaking death of Ruth Bader Ginsburg, this question became the most frequently asked by scholars, activists, lawyers and members of the LGBTQ community.  What started as a hypothetical question became real on Monday, November 23, 2020.Will Obergefell survive the new Supreme Court

What happened? 

The Attorney General for the state of Indiana petitioned The Supreme Court in the case of Box v. Henderson, which poses the question, “Does a married same-sex parent have the same rights as a heterosexual married parent in regards to the presumption of parentage which attaches to marriage?”  The presumption of parentage is the rule of law that creates a legal relationship between the spouse of a woman who gives birth to a child and the child to the spouse of the birth mother.  How does this effect the Obergefell decision, which made marriage equality the law of the land in June of 2015?  The answer to that question poses serious issues of equality and judicial conduct that we are just beginning to understand.

What did Obergefell say?

Will Obergefell survive the new Supreme Court?  First, we need to understand exactly what Obergefell said.  In the Obergefell decision, the court stated not only that all states must issue marriage licenses to same-sex couples, that other states must recognize same-sex marriage licenses and that same-sex couples are entitled to marriage, “on the same terms and conditions as opposite-sex couples.”  That means that all protections, including the marital presumption of parentage, shall redound to same-sex married couples. 

Judicial bias?

The arrival of Box v. Henderson at The. Supreme Court is questionable for a few reasons.  First, the case was last heard in the 7th Circuit Court of Appeals, where a conservative three judge panel unanimously upheld the protections conferred in Obergefell to the 8 plaintiff married couples who are the heart of this case.  But, they waited 3 years to issue an opinion.  The average time between when this court hears a case and when it issues its decision is 3 months.  If this case was handled in the normal time frame, it would have been before a Supreme Court that had already decided this issue twice before in favor of extending all marriage rights to same-sex couples.  But now the court make-up is different, which leads me to the second issue that raises concern: the current Supreme Court requested that the Indiana Attorney General make the Writ of Certiorari, the petition to hear the case, directly.  Why would a court that has twice decided an issue ask to rehear that same issue?

Will Obergefell survive the new Supreme CourtThe court first decided this issue in Obergefell, and then again in 2017 in the case, Pavan v. Smith.  In Pavan, the court held that states must issue birth certificates to same-sex couples in the same manner they issue them to opposite-sex couples.  This means that the presumption of parentage (once referred to as the presumption of paternity) would make the father of a child born to his wife, even if that child was conceived with donor sperm, the legal parent of that child.  The 8 plaintiff couples in the Box case are asking the court to have the presumption apply to their marriages the same way it applies to heterosexual married couples, even when there is not a biological connection between the spouse of the mother and the child. 

To answer the question, “will Obergefell survive the new Supreme Court?”, we must look to the strained strategy of the Indiana Attorney General, Curtis Hill.  Hill is falsely declaring that a state should have the ability to acknowledge the, “biological distinction between males and females.”  He is inferring that because only a man and a woman can biologically have a child together, only an opposite-sex married couple should have the protections that the martial presumption of parentage applies.  Furthermore, one plaintiff couple in the Box case includes a woman who donated her egg to her partner who then gave birth.  Both parents are “related” to the child under the law. 

States rights

This insidious “state’s rights” approach gives the new conservative majority on the Supreme Court, the ones who asked for this case to be heard in the first place, the ability to drive a wedge directly into the heart of marriage equality.  If the conservative Supreme Court sides with Indiana in Box, it will allow other states the ability to make distinctions between same-sex marriage and opposite-sex marriage.  It would mandate that same-sex parents go through a costly and invasive adoption process to secure their legal right as a family.  What the court would fail to realize is that the children would be the victims of this strategy.  Leaving a child in legal limbo only serves to create insecurity in that child’s family. 

Will Obergefell survive the new Supreme Court?  We will soon get a clue.  The new Supreme Court recently heard the case of Fulton v. The City of Philadelphia, which asked whether, among other questions, the government violates the First Amendment by defining a religious agency’s ability to participate in the state sponsored foster-care system mandating the inclusion of same-sex couples as foster parents.  This religious liberty approach to equality, I fear, will be the first sign of the new Supreme Court’s willingness to strip the rights of same-sex couples away. 

What can we do?

If there is anything to learn from this potentially disturbing road that the court appears to be heading down, it is to fight at your local level to ensure that protections are in place and that equality in marriage is preserved.  Do everything you can now to prepare for the worst: get your estate plan in place, petition for a step-parent adoption or birth order if your state allows and start telling all of your friends and family about what is going on. While we may have thought that battle was a thing of the past, we are still warriors.  We have always had to fight to protect our relationships and families, we know how to do it. 

Anthony M. Brown, Esq. – www.timeforfamilies.com November 28, 2020

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Source: Time for Families

Memories of That Night at the Stonewall Inn, From Those Who Were There

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Stonewall Inn

Few people are still around who were really at the Stonewall Inn in Greenwich Village on that summer evening 50 years ago, when a raid by the police led to a violent uprising. Just this month, the New York Police Department apologized. Here are recollections of that night from three men who were there.

In February 1969, Martin Boyce moved into the Manhattan apartment where he would live for the next 50 years. At the time, Mr. Boyce, then a 21-year-old history student at Hunter College, was living with his family. Most nights, however, he traded the East Side for the West Village, where the Stonewall Inn resides.

“Christopher Street was our turf,” he said in a recent interview at his home.Stonewall Inn

Mr. Boyce and some of his friends liked to dress in “scare drag,” a looser style of gender-bending that, he recalled, some drag queens derided as “lazy” and “no ambition.”

But the point was “to confuse someone for just a few moments,” he explained. In any case, one of his personal philosophies of scare drag had a practical benefit.

“Never wear heels, because you had to run,” he said.

Evading police harassment was a fact of life for gay people like Mr. Boyce. Many of the unwanted interactions were predicated on a criminal statute allowing for the arrest of anyone not wearing at least three articles of gender-appropriate clothing. (“And socks didn’t count,” Mr. Boyce said.)

While allowing that the officers “generally” followed the rules, he said that “it was all their whim to make our lives miserable.”

According to Mr. Boyce, the routine police stops, regular attempts at entrapment and raids of establishments frequented by gays all contributed to an atmosphere in which being gay meant feeling hunted.

“We all had our lists in our heads of friends who were beaten, maimed, thrown out of their house, informed on by the cops — tragic stories,” he said. “But there was nothing you could do about it.”

The Stonewall Inn, a seedy gay bar on Christopher Street, was different things to different people. Many resented the Mafia’s control of the bar, which manifested in ways ranging from police payoffs to what Mr. Boyce described as a sign-in book at the entrance. (“I can’t tell you how many times Judy Garland was there,” he said wryly. “Not one real name.”)

But Mark Segal, a Philadelphia native who, at 18, arrived in New York City in the spring of 1969, was more than happy to overlook the overpriced and watered-down drinks.

“It was a safe place for us,” he said. “When you walked in the door of Stonewall,” he added, “you could hold hands, you could kiss and, more importantly, you could dance.”

The bar also drew an unusually diverse crowd. “Stonewall was like a Noah’s ark,” Mr. Boyce said. Its patrons exhibited “degrees of loudness,” he explained, “going from drag queens down to professionals.”

To avoid alienating any particular demographic and ensure that the clientele remained mixed, Mr. Boyce said, the bar’s various Mafia front men performed a crude calculus at the door: “Not too many whites, it’ll tip to white; not too many blacks, it’ll tip to black.”

Still, “it wasn’t the only gay bar in the neighborhood,” Jim Fouratt pointed out in a recent interview. Mr. Fouratt turned 28 in the summer of 1969, when he was working for CBS Records, giving the label cool-kid credibility in meetings with bands. He preferred a bar at the nearby Cherry Lane Theater, he said.

“Most of the customers were closeted married men,” he said of the Stonewall. In his 1993 book “Stonewall,” the historian Martin Duberman quoted a description of the bar by Mr. Fouratt that pulled exactly zero punches: “a real dive, an awful, sleazy place set up by the Mob for hustlers.”

anytime.com, by louis Lucero II, June 16, 2019

Click here to read the entire article.

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Source: Time for Families

The Masterpiece Cake Shop Decision – A Narrowly Decided Cautionary Tale

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masterpiece cake shop decision, lgbt rights, lgbt rights, gay rights, SCOTUS, supreme court

The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.   

In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.

 

gay rightsDon’t get me wrong, I have great respect for most religious belief.  My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues.  We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.

 

However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.

 

I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.

 

masterpiece cake shop decisionJustice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires.  In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent,  “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.”  But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.  

 

Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.”  Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion.  Thus the message that religion is more important than discrimination may be misinterpreted.

 

I have been searching for a meaning behind this seemingly incorrect finding.  Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior.  This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:

“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.

The Court was mindful of how far adrift we could go if every individual could apply his or her religious beliefs to every commercial transaction.  The Court contrasted permission for a clergy person to refuse to marry a couple as an exercise of religious belief, on the one hand, with the unacceptable “community-wide stigma” that would befall gay people if there was a general constitutional right to refuse to provide goods and services.”

I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions.  We are, after all, a portable nation and our families are everywhere. 

 

While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.

 

At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted.  If you have put off doing your estate planning, do it now.  If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court.  If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.

 

While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.  

 

Anthony M. Brown, Time For Families – June 5, 2018

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Source: Time for Families

Republican senators want to protect people with anti-gay beliefs with the First Amendment Defense Act

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President Trump has promised to sign the First Amendment Defense Act into law

Twenty-two Republican U.S. senators have reintroduced the First Amendment Defense Act, a bill that would potentially allow people to discriminate against LGBTQ individuals or same-sex couples under the guise of “religious freedom,” reports The Hill.Discrimination

The bill would insulate any individual who holds “a sincerely held religious belief” opposing homosexuality, transgenderism, or same-sex marriage, or any business operated by an individual with such beliefs, from being penalized or punished by the government should they be found to have discriminated against such people.

As a result, it would prohibit the government from levying fines against people who discriminate, denying them government contracts, or taking away special tax breaks, so long as the person claims that their refusal to provide goods or services was motivated by their religious beliefs.

Critics have warned that the bill is so broadly written that it would not just condone discrimination against LGBTQ individuals and same-sex couples, but single mothers, divorcees, those who engage in premarital sex, or anyone else whose lifestyle does not comport with a person’s religious beliefs, no matter how radical or out-of-the-mainstream those beliefs may be.

The bill was sponsored and introduced by Sen. Mike Lee (R-Utah), and co-sponsored by several prominent conservative senators, including Marco Rubio (Fla.), Ted Cruz (Texas), Orrin Hatch (Utah), Ron Johnson (Wis.), and Rand Paul (Ky.).

A similar iteration of the bill was introduced in both the House and Senate in 2015, but only received a hearing in the House. The measure failed to gain traction, and was eventually set aside by leadership amid protests from Democrats, and the realization that then-President Obama would veto the measure if it managed to pass Congress.

Lee had previously promised to reintroduce FADA after Donald Trump was elected president. Lee’s House counterpart, U.S. Rep. Raul Labrador (R-Idaho), now running to be the next governor of Idaho, said last he would introduce similar legislation in the House during the current session, but never did, according to a search of filed bills in Congress.

By John Riley, metro weekly.com, March 8, 2018

Click here to read the entire article.

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Source: Time for Families

Civil Rights Act Protects Gay Workers, Appeals Court Rules

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Discrimination

A federal appeals court in Manhattan ruled on Monday that federal civil rights law bars employers from discriminating based on sexual orientation.

The case, which stemmed from the 2010 dismissal of a Long Island sky-diving instructor, was a setback for the Trump Justice Department, whose lawyers found themselves in the unusual position of arguing against government lawyers from the Equal Employment Opportunity Commission.Discrimination

The E.E.O.C. had argued that Title VII of the 1964 Civil Rights Act, which bars workplace discrimination based on “race, color, religion, sex or national origin,” protected gay employees from discrimination on the basis of sexual orientation.

But the Trump Justice Department took the position that the law did not reach sexual orientation, and said the E.E.O.C. was “not speaking for the United States.”

The Justice Department and Altitude Express, the instructor’s employer, could seek review of the decision by the United States Supreme Court, although neither party had any immediate comment on the ruling.

In its decision, the United States Court of Appeals for the Second Circuit said, “We see no principled basis for recognizing a violation of Title VII for associational discrimination based on race but not on sex.”

New York Times – By BENJAMIN WEISER and ALAN FEUER  FEB. 26, 2018

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Source: Time for Families