Category Archives: Gay Rights

Religious Organizations and Civil Rights

Every once in a while, a court decision provides a “teachable moment.” A recent case provides one such instance, in another clash of dogma and civil rights.

In Massachusetts, a Superior Court Judge has found a Catholic High School guilty of discrimination for withdrawing a job offer it had extended to one Matthew Barrett; the offer was withdrawn when Barrett listed his husband as his emergency contact on his employment forms, and the school became aware that he was in a same-sex marriage.

The job in question was food services manager.

The nature of the position at issue is important, because the Courts have long held that the Free Exercise clause of the First Amendment exempts religious organizations from civil rights laws inconsistent with their religious principles—that religious organizations may discriminate on the basis of their religious dogma— when the position being filled is religious in nature.

As a post to a Law Professors’ blog reported

The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school’s religious teachings. Judge Wilkins based his decision on several findings. Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett’s position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage.

Law is all about drawing lines and making distinctions. We distinguish between killing in self-defense and murder, between free speech and harassment, and—as here— between discrimination necessary to the exercise of religious liberty and discrimination that exceeds that narrow category.

Where those lines get drawn is always subject to debate and dependent upon facts and evidence.

Here, the issue appears to be straightforward: should a religious organization be entitled to hire and fire non-religious support staff-–janitors, secretaries, cooks, food services managers—on the basis of compliance with the institution’s religious doctrine?

This case is likely to go to the U.S. Supreme Court.  As the Law Professors’ blog says, “stay tuned.”

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“A Signature Act that Unifies the GOP”

I hadn’t heard of the “First Amendment Defense Act” until I read about it at RightWing Watch.

Since statutes cannot trump (excuse the phrase)constitutional provisions, you may wonder–as I did–which of our First Amendment liberties requires this ineffectual statutory “assistance.”

The Act

would prohibit the federal government from “taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”

I wouldn’t bother commenting on this grandstanding bit of Congressional snit (which, to the extent it conflicts with constitutional law, will have no legal effect), except that six GOP presidential candidates recently endorsed it, much to the delight of those staunch proponents of unrestricted religious liberty (but only for Christians who agree with them): the American Principles Project, Heritage Action for America, and the Family Research Council.

The candidates pledging to protect religion-based homophobia against the “agenda” of  LGBT folks who think they are actually entitled to equal civil rights are Cruz, Rubio, Carson, Fiorina, Santorum and Huckabee.

According to Maggie Gallagher of the mis-named American Principles Project, non-signers Bush, Graham, Paul and Trump have verbally expressed support for the measure, demonstrating that the Act “is rapidly becoming a signature issue that unifies the GOP.”

I know that opposition to same-sex marriage has been a “signature issue” for Gallagher, but I think her enthusiasm for keeping LGBT folks second-class citizens has distorted her already questionable analytic abilities. It isn’t just anti-gay bigotry that has come to characterize what’s left of the GOP.

The party’s “signature issue” has become nativism, and a bigotry capacious enough to encompass not just gays, but immigrants and refugees, African-Americans, Muslims…really, anyone who isn’t a white Christian American.

It’s a “signature issue” that will destroy what was once a Grand Old Party.
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Brian Bosma’s Very Good Bill

As Indiana’s legislative session gets underway, there is (as usual) plenty to criticize. (Senate Bill 100 –which ThinkProgress has dubbed “The most anti-LGBT LGBT Rights Bill Ever”–probably tops the list. See their analysis of the bill or Doug Masson’s if you want to understand why), but it’s certainly not the only item on that list.

In the interests of balance, however, it’s worth noting that the news is not all negative.

Speaker Brian Bosma has introduced a really good bill, one that will actually support public education in Indiana. (Given the beating that public education has taken at the hands of Indiana’s Administration and legislature the past few years, this is a really positive change.)

The idea is to incentivize young people to go into education; the Next Generation Hoosier Educator Scholarship program promises to give Indiana’s top high school students an opportunity to earn a full scholarship to any accredited in-state school of education, so long as they spend five years teaching in an Indiana classroom after graduation.

The five-year commitment is based upon research suggesting that, after five years, a new teacher is “hooked”–likely to remain in the profession for the long haul.

Although it is very early in the process, the indications are that the bill–or at least the general approach–enjoys widespread, bipartisan support.

Wouldn’t it be great if the upcoming session of the General Assembly turned out to be one in which Republican and Democratic lawmakers worked together on this and other measures to address the actual problems Indiana faces, rather than yet another iteration of the culture wars that have dominated past sessions? (Just the thought makes me tingly all over…)

Good for you, Speaker Bosma!

Now, can you bury S.B. 100? Somewhere deep?

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And the Hospitality Continues…

In the wake of Governor Pence’s announcement that he didn’t want any of those shifty Syrians relocating here in Indiana, a friend sent me this article about former Governor Mitch Daniels talking fondly about his Syrian heritage…Worth a read.

Of course, it isn’t just Syrian refugees who aren’t getting a “welcome” sign from our unctuous Governor.

Yesterday was Organization Day at the Indiana Statehouse, and both proponents and opponents of adding LGBT Hoosiers  to the list of those protected under the state’s civil rights law showed up to make their voices heard.

There are a couple of things we can be sure of. 1) It will be a contentious session. And 2) Mike Pence will continue to oppose legal equality while insisting that he doesn’t condone discrimination, that he’s not anti-gay, he’s just all about religious liberty.

In anticipation of the Governor’s protestations, the Indiana Democratic Party has compiled and distributed this history of his efforts to marginalize the gay community just since  2000.

2000: During his congressional campaign, Mike Pence said, “Congress should oppose any effort to put gay and lesbian relationships on an equal legal status with heterosexual marriage.”

2000: Pence also supported the reauthorization of the Ryan White Care Act only if federal dollars were excluded from organizations who “celebrate” and “encourage” behavior that facilitates spreading of the HIV virus. Further, Pence supported this reauthorization only if “those institutions provided assistance to those looking to change their sexual behavior”, an off-the-cuff endorsement for ex-gay conversion therapy.

2004: Mike Pence co-sponsored a proposed amendment to the U.S. Constitution that would define marriage as solely between one man and one woman.

2007: Pence voted against the Employment Non-Discrimination Act (ENDA).

2010: Mike Pence voted against the “Don’t Ask, Don’t Tell” repeal which allowed LGBT Americans to openly serve their country in military service.

2012: Pence refused to say on the record if he supported a same-sex couple raising a child together.

2014: Gov. Pence supported HJR-3, a bill to add an amendment banning same-sex marriage to Indiana’s Constitution.

2015: Governor Pence signed the Religious Freedom Restoration Act in a closed-door ceremony.

2015: Governor Pence said on ABC’s “This Week” that it was “absolutely not” a mistake to sign RFRA, throwing Indiana into a $250 million economic panic and putting Indiana’s “Hoosier Hospitality” reputation in jeopardy.

2015: Even after his approval rating plummets from RFRA, Mike Pence on July 22 told the media he is “studying” the issue of LGBT rights and whether or not he’d support across the board protections for the LGBT community.

Gee, if that’s the way Pence acts when he doesn’t support legalized bias, what measures would the Governor support if he did support discrimination? Exile? Chemical castration?

It promises to be a very interesting session…

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I Don’t Think You Understand How This Works….

Okay…I wasn’t going to weigh in on the ridiculous clerk who has been refusing to comply with the law and numerous court decisions requiring her to issue marriage licenses to same-sex couples, but these paragraphs in a recent story got me:

Davis, an elected official and Democrat, has argued that she should be exempt from following the U.S. Supreme Court ruling in Obergefell v. Hodges because she objects to same-sex marriage for religious beliefs.

She had asked the judge to delay his ruling until the Kentucky state legislature, which won’t be in session again until January, can pass legislation that would exempt her and other clerks who don’t wish to follow the law.

Does this woman really believe that the state legislature can pass a bill that–in effect–overrules the U.S. Constitution?

It’s depressing enough when ordinary citizens don’t understand the most basic structure of American government, but how in the world does someone who has spent decades working in a government office remain so appallingly ignorant of the Constitution, the Supremacy Clause, and the operation of the First Amendment?

It’s hard to escape the suspicion that this is intentional ignorance, grandstanding–that no one is really that stupid.

It’s bad enough that she seems embarrassingly ignorant of the nature of religious liberty. As many observers have pointed out, she is entitled to believe anything she wants, but she is not entitled to a government job or paycheck. If her beliefs prevent her from doing what the job requires, she needs to quit.

If I told the University that my religious beliefs “exempted” me from having to teach certain students, believe me, I wouldn’t be on the faculty very long!

A Facebook friend put it this way: if a Quaker public official refused to issue a gun permit, citing “sincerely held” pacifist religious beliefs, would Davis’ “religious liberty” defenders insist that those sincerely held religious beliefs should be accommodated? Or are her defenders more likely to be a bit selective about their demands for accommodation?

It is difficult to identify the most offensive element of this sordid effort to blame discrimination against LGBT folks on God, but I think the winner may be a statement issued yesterday by Davis’ attorney, Matt Staver of the Liberty Counsel. Stare had the chutzpah (google it) to compare Davis to the Jews under the Nazis.

According to Staver, sanctioning a government employee for refusal do the job she is being paid to do is just like sending millions of people to the gas chambers.

I want to pity these people. I really do. But they seem so unworthy of human compassion.

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