QUEER QUOTE: 2nd U.S. Circuit Court Rules 10-3 That Sexual Orientation Is Covered Under 1964 Civil Rights Act

Wow! There's been a big ruling from a federal appellate circuit court articulating an interpretation of federal law that I have been advocating for for over 2 decades. The 2nd U.S. Circuit Court of Appeals ruled 10-3 in Zarda v. Altitude Express in a rare en banc decision that sexual orientation is covered under the 1964 civil rights prohibition against sex discrimination in Title VII. In the words former Vice President Joe Biden would say, this is a "big ******* deal."

An excerpt from the  Zarda decision is today's Queer Quote:

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

To me this has been an obvious constitutional interpretation for decades and should have been part of the legal reasoning for why same-sex marriage is required under the constitution (in addition to being sex discrimination, traditional marriage laws are also sexual orientation discrimination). Judge José Cabranes pointed this out by concurring in the judgement of the majority with this brief decision (given here in its entirety):

This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of … sex.” Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.

That should be the end of the analysis.

Interestingly, the second circuit is now the second federal appellate court to rule in favor of gay rights being civil rights, while previously the 11th U.S. Circuit Court of Appeals had ruled the other way last year.

The 1964 Civil Rights Act is one of the most hallowed achievements of the Civil Rights era so it is quite exciting that judicial statutory interpretation is growing on the side of inclusion of gay rights

Exciting news!

UPDATE: New York City Settles Stop And Frisk Lawsuit!

Good news out of New York City! The election of Bill de Blasio as mayor of the city has resulted in a settlement in the lawsuit over the controversial New York Police Department policy of "stop and frisk." This decision ends the City's appeal of the landmark district court ruling that had declared that stop-and-frisk violated the United States constitution and was racially discriminatory.

The New York Times reports:

New York City will settle its long-running legal battle over the Police Department’s practice of stopping, questioning and often frisking people on the street — a divisive issue at the heart of the mayoral race last year — by agreeing to reforms that a judge ordered in August, Mayor Bill de Blasio announced on Thursday. 

In making the announcement, which he said he hoped would end a turbulent chapter in the city’s racial history, Mr. de Blasio offered a sweeping repudiation of the aggressive policing practices that had been a hallmark of his predecessor, Michael R. Bloomberg, but that had stoked anger and resentment in many black and Latino neighborhoods. He essentially reversed the course set by Mr. Bloomberg, whose administration had appealed the judge’s ruling. 

“We’re here today to turn the page on one of the most divisive problems in our city,” Mr. de Blasio said at a news conference. “We believe in ending the overuse of stop-and-frisk that has unfairly targeted young African-American and Latino men.”

The organization which sued the city over the stop-and-frisk policy, the Center for Constitutional Rights, said:

“Today is the beginning of a long-overdue process: the reform of the NYPD to end illegal and racially discriminatory policing. For too long, communities of color have felt under siege by the police, and young Black and Latino men have disproportionately been the target. We are glad to have reached an agreement with the City and commend Mayor de Blasio for promising to drop the appeal and embracing reform.  We are eager to finally begin creating real change.”

 This is excellent news and another reminder that elections have consequences!

SCOTUS Takes Prop 8 and Windsor Cases

BREAKING NEWS RT @scotusblog#scotus will review #doma and #prop8. #ssm #lgbt
— GLAD (@GLADLaw) December 7, 2012

DOMA Ruled Unconstitutional By 2nd Circuit Panel!

For the umpteenth time this year, the so-called Defense of Marriage Act (DOMA) has been ruled unconstitutional, this time in the Windsor v. United States of America case in the 2nd U.S. Circuit Court of Appeals which covers the states of New York, Connecticut and Vermont, all of which have marriage equality as the law of the land.

Metro Weekly has the dish:

Specifically, the court ruled that "heightened scrutiny" must be applied in the case:

In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

According to the American Civil Liberties Union, which is aiding Windsor in her suit, this is the first federal appeals court ruling to state that government discrimination against gay people deservces heightened judicial review.

The appeals court's ruling comes three weeks after oral arguments were heard in the case. Windsor's case reached the 2nd Circuit Appeals Court after a federal judge sided with Windsor in June, ruling that the government must refund the more than $363,000 in taxes paid by Windsor following the death of her wife, Thea Spyer. Windsor is suing to recoup about $363,000, federal estate tax she was forced to pay on her inheritance from Spyer. The federal government does not tax inheritances that pass from one spouse to the other, but because of DOMA the federal government has refused to recognize Windsor and Spyer's marriage.

This is a "BFD"! Not only that DOMA has been struck down by another federal court (that is becoming commonplace), but that an appellate court has finally ackowledged that sexual orientation is a characteristic which can place people in a suspect class and requires heightened judicial scrutiny is the big news out of today's 2-1 decision in Windsor. It's pretty astonishing that the decision was released a mere 3 weeks after oral arguments were held

There are now four cases (all of which have ruled DOMA unconstitutional) from three circuits that are pending before the United States Supreme Court. And this is yet another loss from the Republican heterosexual supremacists on BLAG, who have spent $1.5 million of United States taxpayers money defending this discriminatory law.