Tag Archives: civil rights

Scalia Was Right

Well, that’s a headline I never thought I’d write!

Not that I always disagreed with Antonin Scalia; he was pretty good on free speech, for example. But overall, I found his jurisprudence intellectually dishonest, and his “originalism” disingenuous–especially because he was smart enough to know it.

What makes the headline particularly ironic, is the fact that my initial reaction to the decision he authored in Employment Division v. Smith was that it was wrong. It was certainly widely criticized.

In that case, members of a Native American Church, who were counselors at a private drug rehabilitation clinic, were fired because they had used peyote–possession of which was a crime under Oregon law– as part of a religious ceremony.  The counselors filed a claim for unemployment compensation with the state, but the claim was denied because their dismissal was deemed work-related “misconduct.” The Oregon Courts of Appeals reversed, finding the denial an infringement of their religious liberty, and the Oregon Supreme Court agreed. The state then appealed to the Supreme Court, arguing that denying the unemployment benefits was proper because possession of peyote was a crime.

Scalia ruled that the denial of unemployment benefits was proper because the law against peyote use was a “law of general application.” That is, it hadn’t been passed as an effort to target Native American religious practices, but as part of a legislative effort to combat drug abuse generally. The fact that a law of general application inadvertently hindered a religious practice might be unfortunate, but that didn’t make its enforcement unconstitutional.

Because the law’s application in this case so obviously–and in the opinion of most people, unnecessarily– punished a longstanding religious ritual, the decision generated considerable outrage, and if memory serves, prompted passage of the Religious Freedom Restoration Act, requiring the Courts to apply a more rigorous judicial standard in such cases. (This was not the infamous Indiana version.)

On reflection, however, I came to the conclusion that Scalia was right.

Here’s the issue: When should “sincerely held religious beliefs” justify ignoring laws meant to protect or improve the citizenry? To take an obvious extreme, we have laws against murdering babies; should the ritual sacrifice of her newborn in accordance with a sincere religious belief exempt the parent from punishment?

If not, when should religious belief trump civil law?

We are once again having this debate, as a result of the tension between laws intended to ensure civic equality and religious dogmas that label certain others “sinners.”

The Washington Post recently reported on one such conflict.

The Supreme Court on Monday added a major case to its docket this fall to decide who prevails when a group’s religious beliefs conflict with a city’s attempt to eliminate discrimination.

The justices will take up a legal fight from Philadelphia, where city officials ended a contract to provide foster care services with Catholic Social Services because the agency said it would not accept applications from same-sex couples who want to take care of children. The case will be heard in the term that begins in October.

The Third District Court of Appeals ruled for the city, holding that it was not targeting the Catholic agency in enforcing its policy prohibiting the city from doing business with entities that discriminate.

The case is being seen as a major test of whether the Court will reconsider precedents, especially the precedent established in Employment Division v. Smith, to the effect that generally applicable laws that don’t intentionally target religious groups are constitutionally enforceable.

It will be interesting to see the reaction of those politicians and pundits who continue to laud Scalia for his convoluted opinions privileging religion as “tradition.”

But then, for all those who counted themselves Scalia fans, it was all and always about results–not consistency.

 

 

 

Pride In Indiana

Today is Pride Day in Indianapolis. The parade –which I always attend– will have well over 100 entrants, representing a wide variety of government agencies, educational institutions, churches and area businesses–a far cry from the few forlorn entries in the first such effort 25 years ago.

Among other things, Pride now celebrates the legal and social progress of the LGBTQ community, which has made great strides nationally over the last couple of decades. In Indiana, it will not surprise you to discover that such progress has been considerably more spotty; cities and towns have passed inclusive Human Rights ordinances, but the state as a whole is an embarrassment on this issue (as well as on so many others.)

The very different politics of cities and rural areas with respect to LGBTQ rights has recently been highlighted by the effort of Jim Merritt–a longtime legislator now running for Mayor of Indianapolis–to “cozy up” to the gay community, and to distance himself from his “perfect” anti-gay record in Indiana’s Statehouse. Our legislature has been gerrymandered to create districts dominated by rural voters, and Merritt has pandered accordingly.

He is not alone. Indiana’s legislature has stubbornly refused to pass an inclusive bias crime bill. Efforts to add four little words–sexual orientation and gender identity– to the list of protected categories in the state’s civil rights law have gone nowhere.

Two years ago, on this blog, I posted some revelatory statistics about the legal disabilities of LGBTQ Hoosiers. The laws that facilitated those statistics haven’t changed. Here’s a smattering of what I wrote then:

Approximately 133,000 LGBT workers in Indiana are not explicitly protected from discrimination under state law….  If sexual orientation and gender identity were added to existing statewide non-discrimination laws, 61 additional complaints of discrimination would be filed with the Indiana Civil Rights Commission each year. Adding these characteristics to existing law would not be costly or burdensome for the state to enforce.

Recent polling discloses that 73% of Indiana residents support the inclusion of sexual orientation as a protected class under Indiana’s existing civil rights law. That’s 73% in Very Red Indiana.

Major employers in the state have worked with civil rights and civil liberties organizations in an effort to add “four little words” to the list of categories protected under the state’s civil rights statute:  sexual orientation and gender identity. So far, the legislature has exhibited zero interest in doing so.

The public outrage over Pence’s RFRA led to a subsequent “clarification” (cough cough) that the measure would not override provisions of local Human Rights Ordinances that do proscribe discrimination on the basis of sexual orientation. A number of city councils around the state promptly added those protections to their Ordinances, which was gratifying.

The problem, as the research points out, is twofold: municipal ordinances in Indiana don’t have much in the way of “teeth.” They are more symbolic than legally effective. Worse, for LGBTQ folks who don’t live in one of those municipalities, there are no protections at all.

The result: Only 36% of Indiana’s workforce is covered by local non-discrimination laws or executive orders that prohibit discrimination based on sexual orientation and gender identity. And that discrimination occurs with depressing regularity.

– In response to the National Transgender Discrimination Survey, 75 percent of respondents from Indiana reported experiencing harassment or mistreatment at work, 30 percent reported losing a job, 21 percent reported being denied a promotion, and 48% reported not being hired because of their gender identity or expression at some point in their lives.

– Several recent instances of employment discrimination against LGBT people in Indiana have been documented in court cases and administrative complaints, including reports from public and private sector workers.

– Census data show that in Indiana, the median income of men in same-sex couples is 34 percent lower than that of men married to different-sex partners.

– Aggregated data from two large public opinion polls found that 79 percent of Indiana residents think that LGBT people experience a moderate amount to a lot of discrimination in the state.

Four little words. Why is that so hard?

Today, at the parade and the event itself, the community and its allies will celebrate the progress that has been made.

Monday morning,  opponents of bigotry need to go back to work.

 

 

The Proof Of The Pudding…Er, Cake

What was that line from Jaws? He’s baaaack….

Remember the Colorado baker who refused to bake a wedding cake for a same-sex wedding, and took his case all the way to the Supreme Court? Although headlines suggested he’d won his case, the Court actually punted, because it found that the initial consideration of his argument by the Colorado Civil Rights Commission had denied him “the neutral and respectful consideration” to which he was entitled.

That case thus failed to set a precedent or resolve the issue. So guess what–Mr. “sincere religious belief” is back, this time for refusing to bake a cake for a transgender customer.

Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo., on Tuesday filed another federal lawsuit against the state alleging religious discrimination.

This time, the cake at the center of the controversy was not for a wedding. In June 2017, Colorado lawyer Autumn Scardina called Masterpiece Cakeshop to request a custom cake that was blue on the outside and pink on the inside.

The occasion, Scardina told the bakery’s employees, was to celebrate her birthday, as well as the seventh anniversary of the day she had come out as transgender.

Masterpiece Cakeshop ultimately refused Scardina’s order on religious grounds.

The Colorado Civil Rights Commission once again found Phillips guilty of discrimination, and once again, he has filed a federal lawsuit claiming religious discrimination.

I have no idea whether the transgender customer was part of an effort to test Phillips’ assertion–in the context of the original case–that he served everyone, and only objected to using his cake-baking “art” to celebrate occasions he “sincerely” believed to be sinful. I wouldn’t be surprised.

Leaving aside the (strong) legal justification for civil rights laws, here’s what strikes me about Masterpiece Cakeshop, the sequel.

As I’ve previously noted, if I owned a bakery, and I sincerely didn’t want to bake a cake for a customer (for any reason–maybe the customer has just been a pain in the derriere), I would simply say something like, “Gee, Mrs. Smith, I am so backed up with orders that I can’t take any more until after the date you need the cake,” or “I’m so sorry, Mr. Jones, but I’m short-handed right now…”

In other words, there are lots of ways you can refrain from “participating in sin” without issuing a self-righteous sermon to justify the abstention.

People in business who want to stay in business avoid unnecessarily pissing people off–especially people who are part of communities that are likely to take offense and stop patronizing your store. (A couple of years ago, a bakery not far from my house did refuse to bake a cake for a gay couple, and told them the refusal was based upon the owners’ religious beliefs. This is a gay-friendly neighborhood, the couple shared their experience, and six months later the bakery was no longer in business.)

Even if the religious belief that requires you to refuse baking a cake is sincere, I know of no religious doctrine that requires you to be a horse’s ass about the refusal. If your religious beliefs require you to turn away business by lecturing your hapless would-be customers about the wages of sin, you have no business being in business. (And you probably won’t be for long.)

Forgive my cynicism, but Mr. Phillips sounds far more interested in theatrically demeaning LGBTQ folks and being a tool for right-wing legal activists than in running a bakery.

Is This Really What Jesus Would Do?

The administration presided over by our thrice-married, p***y-grabbing, porn-star-fornicating President has announced its latest effort to protect religiosity.

The Conscience and Religious Freedom Division has been established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom…. The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights.

The “religious freedom” being protected by the new division and rules is the freedom of medical practitioners to deny medical care if providing that care would be “inconsistent” with their religious beliefs.  (Did the Good Samaritan check the sexual orientation of the injured man he helped? I forgot that part of the story…)

The Administration is clearly unconcerned with the religious beliefs or health needs of women who need reproductive services like birth control. The new rules allow almost anyone who works in the health field to refuse to provide a wide array of services; adding insult to injury, there is no requirement that religiously objecting doctors refer patients elsewhere.

Planned Parenthood warns that the rule could allow a pharmacist to refuse to fill a prescription for birth control, doctors to deny hormone therapy to transgender patients, and  pediatricians to refuse to treat the child of gay parents.

An Atlantic article looked at the implications.

There are already federal laws that protect medical personnel from being required to provide abortions. In addition, nearly every state also allows health-care providers to refuse to perform abortions, and 12 states allow them to refuse to provide contraceptives. In six states, even pharmacists are allowed to refuse to fill birth-control prescriptions.

According to reproductive-rights groups, the problem is these laws often mean patients who are denied services aren’t then referred to a doctor who will provide the care. According to one poll, only 57 percent of doctors nationally believe objecting physicians must refer patients to an accommodating provider. “Only in a couple of states are patients given information and referrals,” says Elizabeth Nash of the pro-choice Guttmacher Institute.

Given the language of the new regulation, the “protection” could be extensive.

“Under the new rule, you could have translators who refuse to translate for a woman undergoing tubal ligation,” says Elizabeth Sepper, a law professor at Washington University in St. Louis.

Those crafting the new rules explain that requiring objecting physicians to refer patients to willing providers would also violate their tender religious consciences.

The proposed rule defines “referral” as providing “any information,” including a phone number or website on a pamphlet, about a health service that the provider disagrees with.

The Administration’s uber-solicitous concern for the religious sensibilities of providers is certainly not matched by any concern for patients, whose rights are far more likely to be violated even under current law.

In 2015, a lesbian couple in Michigan had a pediatrician decline to care for their six-day-old infant, Bay, because, as the doctor later explained to the couple, “after much prayer following your prenatal, I felt that I would not be able to develop the personal patient-doctor relationships that I normally do with my patients.”

Another case, also in Michigan, involved Tamesha Means, a woman who was rushed to her county’s Catholic hospital when her water broke at 18 weeks into her pregnancy. “Based on the bishops’ religious directives, the hospital sent her home twice even though Tamesha was in excruciating pain,” as the ACLU put it. The hospital staff did not tell her that she could, and probably should, end the pregnancy, according to the ACLU’s summary. Ultimately, Means returned to the hospital a third time, this time with an infection, and miscarried.

Critics of this new level of regulation point out that it is transparent political pandering; unlike the numerous cases where patients have been endangered, instances where providers have been discriminated against are vanishingly rare. As the article concluded,

“They’re setting up this office and using a lot of taxpayer dollars to solve a problem that doesn’t really exist,” Fogel says. “Health systems are already pretty good at accommodating people who have a genuine objection to participating in a service.”

Swartz agrees, saying the problem of conscientiously objecting physicians “is like voter fraud. Those instances are one in a million.”

Rare though they might be, these cases will now merit special attention by the U.S. government.

Perhaps this new division is protecting “Christian” doctors in return for that “mulligan” Evangelicals gave Trump…

 

 

What’s Different?

As the Supreme Court prepares to take up one of the persistent “I won’t bake a cake for ‘those people'” cases, a friend asked me to explain the difference between a merchant who refused to do business with a Neo-Nazi group and one who refused to serve gays or Jews.

It’s an important distinction, but not an immediately intuitive one.

Civil rights laws were initially a response to businesses that refused to serve African-Americans–many of the proprietors claimed that their religious beliefs prohibited “mixing” the races (much as those refusing service to LGBTQ folks today base that refusal on religious teachings). Those civil rights measures–later expanded to protect other groups– were based upon an important principle that undergirds our legal system.

Our system is based upon the premise that your right to be treated like everyone else depends upon your behavior, not your identity.

As a result of that important distinction, I can post a sign saying “No shirt, no shoes, no service.” I cannot post a sign saying “No blacks, no Jews.” I can “discriminate” between customers behaving properly, and those who are disruptive, are unwilling to pay, or are otherwise exhibiting behaviors that I believe are harmful to my ability to ply my trade.

I cannot discriminate based upon my customers’ race, religion, or–in states that have inclusive civil rights law–sexual orientation or gender identity.

The confusion between a merchant’s unwillingness to have her business associated with the KKK, for example, and unwillingness to serve LGBTQ customers is reminiscent of arguments raised when Indiana was (unsuccessfully) trying to add “four words and a comma”(sexual orientation, gender identity) to Indiana’s civil rights law, which still does not include protections for gays or transgender individuals.

During those arguments, opponents of the added protections asserted that “forcing” a business to serve gay customers would be indistinguishable from forcing a baker to make a cake with a swastika or forcing Muslim or Kosher butchers to sell pork.

That comparison, however, is fatally flawed.

If I go into a menswear shop and ask for a dress, am I being discriminated against when I’m informed the store doesn’t sell women’s clothes? Of course not.

Civil rights protections don’t require the baker who doesn’t bake swastika cakes, or the butcher who never sells pork to add those items to their inventory. Civil rights laws do keep the baker from refusing to sell the cakes he does make to “certain people.”

The kosher butcher doesn’t have to carry pork, but he can’t refuse to sell his kosher chickens and beef to Muslim or Christian customers, again, so long as those customers can pay and are abiding by the generally applicable rules of the shop.

The distinction may not be immediately obvious, but it’s important. The essence of civil rights is the principle that you can be denied service for your chosen behaviors, not for your identity.

I hope that helps…