QUEER QUOTE: SCOTUS (finally!) Agrees To Decide Whether LGBT People Are Covered By Federal Civil Rights Laws

The Supreme Court finally has granted certiorari (agreed to hear and make a ruling in) for multiple cases of interest to LGBT citizens today. The question of whether Title VII of the 1964 Civil Rights Act which prohibits discrimination "because of sex" includes sexual orientation (and gender identity) has been an increasingly important one. I say finally also because this question had been pending at every Friday meeting of the Justices since January 2019.

The 2019 Williams Institute Moot Court competition in Sexual Orientation and Gender Identity Law  (in which I was a volunteer judge)  revolved around this very question as well as whether the "ministerial exception" prevented an employment discrimination lawsuit by a bisexual employee under Title VII.

There is a current split between circuit courts on the question of whether gay people are covered under the 1964 Civil Rights Act, and thus the U.S. Supreme Court agreed to decide this  question by consolidating Altitude Express v. Zarda and Bostock v. Clayton County, Georgia. In Zarda, the Second Circuit ruled that Altitude Express impermissibly discriminated on the basis of sexual orientation against Don Zarda, a sky-diving instructor (who was killed tragically in 2014 but the lawsuit has continued in his name by his surviving partner and family). Altitude Express's appeal of that ruling is being consolidated with an 11th Circuit ruling in Bostock which refused to do an en banc reconsideration of its holding that child welfare services coordinator working for Clayton County did not have a right to sue for sexual orientation discrimination and gender stereotyping.

Additionally, the Supreme Court also agreed to hear, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a case of a transgender employee fired by a funeral home; the business is challenging the Equal Employment Opportunity Commission's decision that gender identity is covered under Title VII's sex discrimination ban. Today's Queer Quote is the issue in that case:

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

 Price Waterhouse is a longtime precedent case (from 1989) which prohibited discrimination on the basis of sex (gender) stereotyping, ruling that this is covered under Title VII.

Presumably these will be some of the most significant cases of the 2019-2020 Supreme Court term, and be released as decisions in June 2020, right in the thick of the 2020 presidential campaign is heating up (hopefully both nominees will  be known by then).

The doubt over whether LGBT people are protected by federal law against invidious  discrimination based in sexual orientation and gender identity is why the Equality Act was introduced into Congress earlier this year.

Hat/tip to SCOTUSblog

Federal LGBT Civil Rights Bill #EqualityAct Introduced In U.S. House

There are 28 states where it is perfectly legal to fire someone for being a member of the lesbian, gay, bisexual and transgender (LGBT) community today. Most American believe that LGBT citizens should have (and already have) equal civil rights in the United States.

On March 13, the Equality Act, a comprehensive federal LGBT civil rights bill was introduced into the Congress with one House almost certain to pass it due to the fact Democrats have a majority in the House of Representatives.

The Williams Institute at UCLA Law School did an analysis of the state of cvil rights for LGBT Americans and published a report summarizing its findings. Key among these, are:

• An estimated 8.1 million LGBT workers age 16 and older live in the United States. About half of these workers—4.1 million people—live in states without statutory protections against sexual orientation and gender identity discrimination in employment.
• There are over 3.5 million LGBT students age 15 and older in the U.S. About 2.1 million live in states without statutory protections against sexual orientation and gender identity discrimination in education.
• There are an estimated 13 million LGBT people age 13 and older in the U.S. Approximately 6.9 million live in states that do not statutorily prohibit sexual orientation and gender identity discrimination in public accommodations. 
• There are an estimated 11 million LGBT adults in the U.S. Over 5.6 million live in states without statutory protections against sexual orientation and gender identity discrimination in housing and 8 million lack such protections in credit.

Hat/tip to Williams Institute

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!

GODLESS WEDNESDAY: Is This Cross A "Secular Monument"?

There is a federal lawsuit ongoing around the cross shown in the image at the top of this post. A U.S. District Court judge has ruled that this large christian cross in Bayview Park in Pensacola, Florida must be removed within 30 days.

The attorneys-general of 14 states have filed an amicus brief saying that this cross is a "secular monument." Here are some excerpts:

"The mere fact that these monuments consist of crosses and other religious symbols does not negate their secular purpose or their historical and cultural significance."  

and 

"Ultimately, if it were accepted by this Court, the district court’s reasoning would threaten countless monuments across the Circuit. As detailed in the City’s appendix, state and local parks, squares, and government buildings boast veterans’ memorials that contain religious imagery, including crosses, citations to scripture, and the like."

That is exactly the point! There are so many government buildings which include religious imagery that are claimed to have "historical" and "societal" significance when the religious message is clear to others. The question is who will the federal judiciary agree with?

CELEBRITY FRIDAY: President Trump Nominates Neil Gorsuch for #SCOTUS

President Donald Trump nominated 10th Circuit Appellate Court judge Neil Gorsuch, 49(!) to the United States Supreme Court on Tuesday January 31st.

The New York Times reports:

While he has not written extensively on several issues of importance to many conservatives, including gun control and gay rights, Judge Gorsuch has taken strong stands in favor of religious freedom, earning him admiration from the right. 

In two prominent cases, both of which reached the Supreme Court, he sided with employers who had religious objections to providing some forms of contraception coverage to their female workers. 

He voted in favor of Hobby Lobby Stores, a family-owned company that objected to regulations under the Affordable Care Act requiring many employers to provide free contraception coverage. Similarly, he dissented from a decision not to rehear a ruling requiring the Little Sisters of the Poor, an order of nuns, to comply with an aspect of the regulations. 

The Supreme Court ruled in favor of Hobby Lobby in 2014 and vacated the decision concerning the Little Sisters of the Poor in 2016.

And so it goes.

QUEER QUOTE: SCOTUS Agrees To Hear Important Transgender Rights Case From Virginia

The United States Supreme Court agreed to hear the case of Gavin Grimm, a 17-year-old transgender boy who (with the help of the ACLU) is suing the Gloucester County School Board in Virginia for the right to use the bathroom associated with his gender identity.

Today's Queer Quote is from the granting of certioari by SCOTUS in Grimm:

 (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

SCOTUSblog describes the Grimm case in this way:

Although the controversy over the school board’s policy requiring students to use the restrooms and locker rooms that match the gender that they were assigned at birth instantly became the highest-profile case of the court’s term so far, the dispute actually centers on more technical (and, some would say, rather dry) legal issues. In this case, the district court ruled against G.G., relying on a 1975 regulation that allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex. But, in January 2015, the Department of Education’s Office of Civil Rights issued an opinion letter stating that, if schools separate students in restrooms and locker rooms on the basis of their sex, a “school generally must treat transgender students consistent with their gender identity.” In light of the 2015 letter, the U.S. Court of Appeals for the 4th Circuit reversed and ruled for G.G. It relied on the Supreme Court’s 1997 decision in Auer v. Robbins, which held that courts generally should defer to an agency’s interpretation of its own regulation. 

In granting review today, the justices sidestepped the most prominent issue they had been asked to take on: whether they should overrule their decision in Auer, which has been the target of criticism by conservative lawyers and jurists. Instead, they agreed only to weigh in on two other, lower-profile questions presented in the school board’s petition: whether courts should defer to a letter, like the Department of Education opinion letter in this case, that was issued as part of the specific dispute before the court; and whether the Department of Education’s interpretation of the federal civil rights laws and the 1975 regulation as requiring schools to treat transgender students consistent with their gender identity should be given effect. 

The school board’s case, as well as the others in which the justices granted review today, likely will be argued during the court’s February sitting, which begins on February 21.

Here at MadProfessah.com we will be  watching this case closely. The primary takeaway should be that although marriage equality is now the law of the land, the fight for full LGBT equality is clearly not over. And the United States Supreme Court will almost certainly play a role in accomplishing this.

Hat/tip to Kenneth in the 212

Ding Dong Scalia Is Dead! Obama Will Get 3rd SCOTUS Pick!

Wow! There are multiple reports (first broken by the San Antonio Times) that 79-year-old Antonin Scalia, the longest-serving member of the United States Supreme Court (appointed by President Ronald Reagan in 1986) has been found dead at a ranch in Texas.

This means that President Barack Obama will have a 3rd opportunity to appoint a Justice to the Court. Previously he has appointed Sonia Sotomayor (2009) and Elena Kagan (2010)

The Republicans will almost certainly claim there is not enough time to approve a justice who will be breaking the now 4-4 tie between left-leaning and right-leaning remaining on the Court.

Regardless, the Supreme Court will become a major factor in the 2016 presidential race and that has to increase turnout and help the Democratic nominee.

EEOC Rules Sexual Orientation Employment Discrimination Is Barred By Federal Law

Another bad day for heterosexual supremacists! We will have to start calling the summer of 2015 "rainbow summer"! Buzzfeed's Chris Geidner is reporting that the Equal Employment Opportunity Commission has (finally) ruled that sexual orientation is covered under Title VII of the Civil Rights Act of 1964. This means that nationwide, under federal law, you can not be discriminated against based on your sexual orientation. The EEOC had previously ruled in 2012 that gender identity or expression was covered under the term "sex," which meant that discrimination against transgender individual was illegal under federal law.


Geidner explains:

The commission found that sexual orientation discrimination is sex discrimination for several reasons. Among the reasons, the commission stated, is because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.”   

After a review of the case law regarding similar challenges to employment practices alleging a violation of Title VII where the initial understanding of the law would not have included that coverage, the commission stated, “The courts have gone where the principles of Title VII have directed.”

“Our task is the same,” the decision found. “We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

This is a huge deal! This means that in the  28 states which do not have state laws containing protections against employment discrimination based on sexual orientation, LGB people will have access to the EEOc process based upon federal law. This issue will become more salient as now that marriage equality is the law of the land nationwide, people's marital status may "out" them in the workplace, thus causing them to be subject to anti-LGB animus in many jurisdictions. This EEOC decision will provide many people with some measure of protection and recourse. However, we should not forget that LGBT people will still be able to be discriminated against in housing, credit, education and public accommodations in more than half the states.

POLL: Most Americans Understand What "Transgender" Means

Most Americans clearly understand what the word "transgender" means and support civil rights for transgender people to be included in public policy and legislation.

Over 20 States Increase Minimum Wage On January 1; Federal Stuck at $7.25

One of the good things about a new year is that new laws go into effect. On January 1, twenty states raised their minimum wage, with Washington state continuing to have the highest minimum wage in the country at $9.47 per hour. New York raised its minimum wage to $8.75 on December 31st. California's minimum wage is $9.00.

The Huffington Post reports:

Minimum wage workers in Alaska, Arizona, Arkansas, Colorado, Connecticut, Florida, Hawaii, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Jersey, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Washington and West Virginia will all see their pay go up on Jan. 1. Minimum wage workers in Delaware and Minnesota are also expected to receive a pay hike in June and August 2015, respectively. 

For the first time a majority of states (29) have minimum wages higher than the federal minimum.

QUEER QUOTE: Justice Department Now Agrees 1964 Civil Rights Act Protects Transgender People

There has been an interesting (and important) development late in the year in LGBT equality! The question of whether discrimination on the basis of gender identity or expression is covered under prohibitions against "sex discrimination" has been hotly debated for years. The Equal Employment Opportunity Commission (EEOC) issued a ruling in Macy v. Holder in 2012 which said that they believe that discrimination against transgender individuals is illegal sex discrimination under federal law. The U.S. Department of Labor used that ruling to issue an announcement in 2014 that the agency also believes employment discrimination against transgender individuals is illegal under federal law.

Chris Geidner of Buzzfeed reports that on December 15, 2014 the Attorney General of the United States sent out a memorandum basically agreeing with the EEOC and Labor Department's interpretation of Title VII of the 1964 Civil Right Act that prohibition of sex discrimination in employment includes transgender employees.

This is a huge deal because there is no federal law enacted by Congress prohibiting discrimination against LGBT employees and only a dozen states have enacted state laws protecting civil rights based on gender identity or gender expression (in contrast to over 20 states that have law protecting civil rights based on sexual orientation). Thus the Justice Department reversing its previously held position and now endorsing the concept that "sex" includes "gender identity or expression" is very significant.

Here's a key excerpt from the Attorney General's memorandum (Treatment ofTransgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 ) which is today's Queer Quote:

After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII' s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination "because of ... sex" includes discrimination because an employee's genderidentification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex. As the Court explained in Price Waterhouse, by using "the simple words 'because of,' ... Congress meant to obligate" a Title VII plaintiff to prove only "that the employer relied upon sex-based considerations in coming to its decision." 490 U.S. at 241-242.It follows that, as a matter of plain meaning, Title VII' s prohibition against discrimination "because of ... sex" encompasses discrimination founded on sex-based considerations, including discrimination based on an employee's transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that "statutory prohibitions often go beyond the principal evil to cover reasonablycomparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998). 

It basically says what I said, but in a lot more words, and using Supreme Court precedent. This is a very important result and it will be interesting to see if this signals the next evolution of civil rights jurisprudence which is that discrimination on the basis of sexual orientation (i.e. against LGB people) is also sex discrimination. I have believed that it is, and the best explanation for why this is I have ever read is in Andrew Koppelman's  now seminal 1994 law review article "Why Discrimination Against Lesbians and Gay Men is Sex Discrimination."

The interesting situation now is that currently the T in LGBT have federal employment protections while the LGB do not, while the LGB have many more states where they are protected under state law and the T are not. Surely this untenable status quo can not be maintained for long.

 Hat/tip to Chris Geidner

Louisiana Federal Judge Issues Poorly Reasoned Decision Upholding Gay Marriage Ban

The string of twenty victories at the federal level for marriage equality since June 2013's United States v. Windsor decision came to an end on Wednesday when a Reagan-appointee district court judge in Louisiana ruled that state's ban on marriage equality does NOT violate the United States Constitution's guarantees of equal protection or due process.

Some observers immediately criticized the Robicheaux v. Caldwell ruling for multiple errors of judicial analysis, false statements and blatant bigotry.

 Judge Feldman did not spew the kind of hate that comes from the National Organization for Marriage or the Liberty Council or the Westboro Baptist Church. Nor, on the other hand, was he even remotely supportive. Besides calling being gay a "lifestyle choice" (Error 1) and comparing gays marrying to incest (Error 2), he asserted that the right the plaintiffs sought was a "new right," one definitely not steeped in the democratic tradition of this country--namely, a right to same-sex marriage (Error 3).

The judge makes basic constitutional errors like misstating the levels of scrutiny required in equal protection cases, calling them "rational basis, intermediate scrutiny and heightened scrutiny" when even my first-year students know that the levels of scrutiny used by the Supreme Court are rational basis, heightened scrutiny (sometimes called intermediate scrutiny) and strict scrutiny.

We shall see if this ruling will have any effect on the ultimate question of whether states have the right under the U.S. constitution to deny the fundamental right to marry to same-sex couples while allowing opposite-sex couples to enjoy the rights, privileges and responsibilities of civil marriage.

Hat/tip to Joe.My.God.

Obama Will Sign Executive Order Extending LGBT Discrimination Protections To Millions of Americans

President Barack Obama will sign an executive order that will effectively add LGBT workplace protections to some 28 million American workers on Monday. The President will issue an executive order that amends the executive order (11246) that extended discrimination protections to federal contractors, i.e. businesses that have contracts to do work with the federal government, to include sexual orientation and gender identity. This will protect all LGBT workers at federal contractors. The Williams Institute estimates that 11 million people will be protected from sexual orientation discrimination and another 14 million will be protected from gender identity discrimination. The AP estimates that the actions will impact 24,000 companies that do business with the federal government (and their 28 million employees).

The President will also amend an existing executive order (11478) that prohibits discrimination in the federal workplace on the basis of sexual orientation to include gender identity. As the Vice President would say, "this is a big ******* deal."

Chris Geidner has published the July 15th draft text of the order Obama will issue tomorrow:

EXECUTIVE ORDER
Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity
By the authority vested in me as President by the Constitution and the laws of the United States, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to provide for a uniform policy for the Federal Government to prohibit discrimination based on gender identity and take further steps to promote economy and efficiency in Federal Government procurement by prohibiting discrimination based on sexual orientation and gender identity, it is hereby ordered as follows:
Section 1. Amending Executive Order 11478.
Executive Order 11478, as amended, is hereby further amended as follows:
(a) The first sentence of section 1 is amended by substituting “sexual orientation, gender identity,” for “sexual orientation”.
(b) The first sentence of section 7 is amended by substituting “sexual orientation, gender identity,” for “sexual orientation”.
Sec. 2. Amending Executive Order 11246.
Executive Order 11246, as amended, is hereby further amended as follows:
(a) The first sentence of Section 202, paragraph (1) is amended by substituting “sex, sexual orientation, gender identity, or national origin” for “sex, or national origin”.
(b) The second sentence of Section 202, paragraph (1) is amended by substituting “sex, sexual orientation, gender identity, or national origin” for “sex, or national origin”.
( c ) The first sentence of Section 202, paragraph (2) is amended by substituting “sex, sexual orientation, gender identity, or national origin” for “sex, or national origin”.
(d) The first sentence of Section 203, paragraph (d) is amended by substituting “sex, sexual orientation, gender identity, or national origin” for “sex, or national origin”.
Section 3. General Provisions.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an agency or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Significantly, there are no extra codicils or exemptions based on religion included, which in light of the Supreme Court's Hobby Lobby decision, became a focal point for religious entities who want to use their "professed religious belief" to trump the application of existing laws.

This is a good thing!

QUEER QUOTE: NGLTF Acknowledges 50th Anniversary Of 1964 Cvil Rights Act

Last Wednesday, July 2 2014, was the 50th anniversary of the enactment of the 1964 Civil Rights Act, one of the key moments in the fight for equality in this country. Re Carey, the executive director of the National gay and Lesbian Task Force 9more commonly known as The Task Force) acknowledged the historical significance of the moment by sending out a press statement which is today's Queer Quote:

"Fifty years ago, President Johnson signed the Civil Rights Act. It was the culmination of historic actions such as the March on Washington that we commemorated last summer. The landmark act was more than a legal remedy to the most appalling discrimination and inequality, it represented the hopes and dreams of millions of people who simply wanted to fulfill the promise of America. Today, we can celebrate significant progress, including important advances in recent days such as President Obama's upcoming executive orders to protect LGBTQ employees. But we still live in a world where racism permeates every aspect of our society; where a trans person of color can be turned away from the polling station because of their race and gender identity, where a Latino man can be profiled, stopped and frisked because of his race and presumed sexual orientation, and where millions of women — regardless of race — get paid less than their male counterparts. So, as we celebrate today, let¹s fight even harder for a tomorrow where everyone experiences true freedom and justice."

Good job, NGLTF!

WISCONSIN: Federal Judge Issues Stay and Injunction Halting Marriage Equality

Bad news out of Wisconsin! Federal judge Barbara Crabb finally issued a final order implementing her previously issued decision in the same-sex marriage case of Wolf v Walker in favor of marriage equality from last week and included a stay and injunction that makes it clear that no marriage licenses should be issued to same-sex couples while the matter is appealed to the U.S. 7th Circuit.

This means that the multiple counties and big cities like Madison and Milwaukee where same-sex couples were being issued marriage licenses have to stop doing so immediately.

The judge wrote in her final order that the Supreme Court's previous decision this past January to issue a stay in the case of whether Kitchen v. Herbert striking down Utah's ban on marriage equality should go into effect compelled her to do the same since the two cases are indistinguishable from each other. All this year federal judges in various jurisdictions have been striking down laws banning marriage equality in several states (Michigan, Oklahoma, Oregon, Pennsylvania, Texas and Virginia, and many others) usually issuing stays automatically preventing marriages from going into effect.

In some jurisdictions, notably Oregon and Pennsylvania, the state officials agreed with the ruling and thus did not appeal it, causing marriage equality to go into effect immediately in those states. However, in others, like Wisconsin, politicians have continued to battle in court to uphold their discriminatory marriage laws and are appealing to the appropriate federal appellate circuit. The 4th and 10th appellate circuits have heard oral arguments in their marriage equality cases and could issue decisions at any time, although most observers do not expect one to do so until much later this year at the earliest.

Hat/tip to Joe Jervis

19 And Counting! Federal Judge Strikes Down Pennsylvania Ban On Marriage Equality

For the second time in two days, a federal judge has brought marriage equality to a blue state. Yesterday, openly gay federal judge (nominated by President Barack Obama in 2013) Michael McShane ruled that Oregon's marriage laws were unconstitutionally prohibiting same-sex marriage. Today federal judge John E. Jones II (nominated by George W. Bush in 2002) struck down Pennsylvania's state ban on marriage equality. The attorney general of Pennsylvania refused to defend her state's statutory ban on same-sex marriage. Pennsylvania does not have an LGBT non-discrimination law or a constitutional ban on recognizing or invalidating same-sex marriages.

In the case of Whitewood v. Wolf the judge concluded that

Based on the foregoing, we hold that Pennsylvania’s Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Because these laws are unconstitutional, weshall enter an order permanently enjoining their enforcement. By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in theCommonwealth.  

The issue we resolve today is a divisive one. Some of our citizens are madedeeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibitionconstitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would  still be a racially segregated nation according to the now rightfully disregarded notion of "separate but equal." [citations omitted] In the sixty years since Brown was decided "separate" has faded into history, and only "equal" remains. Similarly, in future generations the term same-sex marriage will be abandoned, to be replaced simply by marriage. 

We are a better people than what these laws represent, and it is time to discard them to the ash heap of history.

Since no stay was issued and it is unlikely (but possible) that the 3rd Circuit Court of Appeals will issue a stay in the near future, Pennsylvania becomes the 19th marriage equality state!

QUEER QUOTE: Matt Foreman Opposes Federal LGBT Legislation, Says #ENDAisNOTEqual

Well, well, well! Expressing publicly thoughts which many LGBT activists (like myself) have had privately for years, Matt Foreman, former head of the National Gay and Lesbian Task Force and eminence rose of the LGBT movement has said that the current "federal gay rights bill," commonly known as ENDA (which passed the United States Senate for the first time in its 40-year history last year) is a waste of time.

To be precise he said this:

"It's pathetic that four decades have gone by without Congress extending basic civil rights protections to LGBT Americans. It's even more pathetic that what's left of Bella Abzug's comprehensive legislation is ENDA - a small-bore bill that is now riddled with giveaways to anti-gay forces, including a religious exemption big enough for an 18-wheeler to cruise through. It's time to pull the plug on this essentially lifeless corpse and demand full equality under the federal civil rights statutes."

ENDA is (and has been for at least a decade) the #1 priority of HRC, the nations largest LGBT political advocacy organization. But with a Republican-controlled House of Representatives, no pro-LGBT legislation will be enacted in the near-future, since only a handful of House Republicans (well, 7) are publicly supportive of the measure. The hardest thing about banning anti-gay discrimination in federal law is that most Americans already think it is illegal (and think that it should be), which paradoxically reduces momentum for enacting such a policy into law.

I agree with Matt that ENDA should be replaced by a comprehensive civil rights bill that calls for an end to discrimination in public accommodations, employment, education and housing, basically amend the 1964 civil rights act and add "sexual orientation, gender identity or gender expression" to the words where "race, color, religion, sex, or national origin" appear in the text.

However, it does seem like pushing for a more comprehensive measure will make enacting basic projections in the 23 states where you can currently be fired for being LGB even less likely to happen in the near term.

So, I disagree that ENDA should be withdrawn, I think it should be supported, IN ADDITION to a comprehensive bill.

What do you think?

AG Holder Announces U.S. Will Recognize Utah Same-Sex Marriages

Good news! Despite Utah taking the position that they are prohibited from recognizing the same-sex marriages that occurred while the state's Amendment 3 was suspended as a result of a federal judge's ruling in Kitchen v Herbert on December 20, the U.S. Department of Justice has determined that the Obama administration will recognize the estimated 1,300 marriages that occurred for purposes of federal law.

Attorney General Eric Holder said:

Last June, the Supreme Court issued a landmark decision – in United States v. Windsor – holding that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This ruling marked a historic step toward equality for all American families. And since the day it was handed down, the Department of Justice has been working tirelessly to implement it in both letter and spirit – moving to extend — federal benefits to married same-sex couples as swiftly and smoothly as possible.

Recently, an administrative step by the Court has cast doubt on same-sex marriages that have been performed in the state of Utah. And the governor has announced that the state will not recognize these marriages pending additional Court action.

In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds. In the days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled – regardless of whether they in same-sex or opposite-sex marriages. And we will continue to provide additional information as soon as it becomes available.

This is excellent news and may indicate that the United States may take a position in favor of recognition of these same-sex marriages before the Supreme Court when the lawsuit reaches that stage.

Practically, it means that same-sex couples married in Utah will not receive any state recognition but will receive federal recognition of their marriages. Arguably, the federal benefits and responsibilities are more significant than those provided by the state.

Obama Signs Defense Bill Repealing Military Sodomy Prohibition

Good news! Even though "Don't Ask Don't Tell" (the federal law banning open homosexuality in the U.S. armed forces) was repealed more than three years ago, the military still prohibited sodomy between servicemembers in the Uniform Code of Military Justice (UCMJ). President Obama signed the National Defense Authorization Act (NDAA) into law earlier this week and it contained multiple gay-related provisions, the most prominent being a repeal of the military's sodomy law.

In 2011, Democratic legislators tried to repeal Article 125 of the Uniform Code of Military Justice, but the effort was defeated after conservative groups accused them of trying to legalize sexual abuse of animals. This time around, Senate Democrats, including Colorado Senator Mark Udall, Kirsten Gillibrand of New York, and Jeanne Shaheen of New Hampshire offered a proposal that would alter the language so as to keep bans on “forcible sodomy” and “bestiality” while decriminalizing consensual sexual activity between gays and lesbians. 

The new proposal met little resistance, even in the Republican-controlled House, and even among legislators who just three years ago opposed allowing gays and lesbians to serve openly in the military.

This is excellent news for LGBT people in the military and another victory in the kulturkampf for the champions of equality. Now there is nowhere in society where gay sex is criminalized, although it is still stigmatized socially.

Interestingly, the other gay-related provisions address another stigma: the criminalization of HIV-positive people.

The Washington Blade's Chris Johnson reports:

Additionally, under Section 572, the legislation directs the Pentagon to submit a report to Congress no later than 180 days after the bill is signed into law on personnel policies regarding service members with HIV or Hepatitis B.  The bill directs the Pentagon to include a description of the policies as well as related retention, deployment and disciplinary actions as well as an assessment of whether these policies are evidence-based and medically accurate.

According to the LGBT military group SPART*A, service members become non-deployable once they’re discovered to have HIV; can’t commission as an officer or warrant officer; can’t fly aircraft or work in any jobs requiring a flight physical; are restricted to stateside duty assignments (with the exception of the Navy); and are not eligible for special schools such as Ranger, Special Forces or other special ops jobs.

Thompson said the provision is welcome because it will examine whether the military’s current HIV policy is appropriate or outdated.

“This review is welcome and overdue because many of our laws, policies, and regulations regarding HIV were written at a time when we knew far less about the routes and risks of HIV transmission, and prior to the development of effective HIV treatment,” [ACLU Legislative Representative Ian] Thompson said.

Legislative action dealing with the stigmatization of HIV and HIV-positive people is something that I think will be more common in the near future. Since the "AIDS panic" days of the 1980s and early 1990s there are some horrendous and draconian laws on the books around the country.

I'm glad to see there is some positive movement towards decriminalizing HIV, since it has a disparate impact on gay men.

POLL: Supermajority Support for Federal Minimum Wage of $10.25

A new poll from ABC News indicates that there is strong popular support for an increase in the hourly minimum wage from the current level of $7.25. The last increase was in 2009; President Obama called for Congress to raise it to $9.00 and has endorsed pending legislation that would increase it to $10.10.

This poll, produced for ABC by Langer Research Associates, offered pro and con arguments on the issue, noting that some say the minimum wage should be raised “to help low-income workers get by,” while others say taking such action “will lead some businesses to cut jobs.” The result is 2-1 in favor: Sixty-six percent support raising the minimum wage, while 31 percent oppose it.

Intensity of sentiment is even more lopsided: Nearly half, 48 percent, “strongly” support raising the minimum wage, vs. 20 percent who are strongly opposed.

Told its current level and asked what the minimum wage should be, Americans, on average, say $9.41 per hour. That rises to $10.25 just among those who favor raising the minimum wage.

[...]

In partisan terms, support for a higher minimum wage peaks at 85 percent among Democrats and liberals alike, and also draws 71 percent of moderates and 65 percent of independents. Support declines to 50 percent of Republicans and 46 percent of strong conservatives.

This is an issue that progressives should promote in 2014 and beyond.