Category Archives: Gay Rights

Some Conflicts Never Die…

Back in 2000, I wrote a couple of newspaper columns and an academic article about litigation involving the Kentucky Baptist Children’s Home. The Children’s Home had fired a youth counselor solely because she was a lesbian; they admitted that she was an excellent counselor, but justified the firing by explaining that “the gay lifestyle” (discovered because her picture appeared in media snapped at a Pride parade) was inconsistent with their theological beliefs.

Ordinarily, this firing would not have given rise to a lawsuit-even in those few states that had then extended civil rights protections to gays and lesbians, religious organizations were (and are) exempt from civil rights laws. But the Home was essentially funded by the state of Kentucky. Some $12 million of its $15 million dollar annual budget came from state tax dollars paying for the children placed in the facility by the state. The lawsuit challenged the propriety of using tax dollars to discriminate.

The case ran into some technical issues not germane to the principle being litigated, and I lost track of its subsequent path. (A very similar case from Georgia was settled when that state agreed to abide by the Constitution.) Evidently, the Kentucky Home did not lose its state support–nor its insistence on disadvantaging members of the LGBTQ community–because AP has reported on the emergence of a similar conflict between the Home–now renamed Sunrise Children’s Services–and the state.

A cultural clash pitting religious beliefs against gay rights has jeopardized Kentucky’s long-running relationship with a foster care and adoption agency affiliated with the Baptist church that serves some of the state’s most vulnerable children.

The standoff revolves around a clause in a new contract with the state that bans discrimination based on sexual orientation and that Sunrise Children’s Services is refusing to sign.

It’s another round in a broader fight in states and the courts over religious liberty and LGBTQ rights, including whether businesses can refuse to provide services for same-sex weddings. An upcoming U.S. Supreme Court decision in a Pennsylvania case could be decisive in the Kentucky clash; it’s reviewing a refusal by Philadelphia Catholic Social Services to work with same-sex couples as foster parents.

The original case–twenty-one years ago–involved the home’s refusal to employ LGBTQ staff members, no matter how professionally competent. I was unable to determine whether that situation has changed, but this time, the argument is about the agency’s refusal to place children with same-sex foster or adoptive parents.

Sunrise wants its religious beliefs to exempt it from a law that applies to other agencies doing business with the state, a requirement imposed by what lawyers call a law of general application. It wants to continue benefitting from tax dollars paid by all Kentucky residents, gay and straight, while picking and choosing which rules it will follow.

That isn’t the way it’s supposed to work.

“If Sunrise doesn’t want to abide by that, that’s fine. They shouldn’t have access to state money, state contracts or children in the state’s care,” said Chris Hartman, executive director of the Fairness Campaign, a Louisville-based gay rights advocacy group.

Hartman said he worries LGBTQ children in Sunrise’s care are “deeply closeted,” hiding their sexual orientation out of fear of “indoctrination and proselytization.”

Whether that fear is justifiable or not is beside the point. It was actually Justice Scalia–no champion of secularism–who wrote the decision in Employment Division v. Smith, confirming that religious belief does not exempt citizens from compliance with laws of general application.

Sunrise is perfectly free to follow its theological principles. It isn’t free to demand continued public funding at the same time it is refusing to follow the rules that govern distribution of that funding.

I sometimes wonder whether America has turned into a version of Animal Farm, where everyone is equal, but some folks (“good Christians”) think they’re entitled to be more equal than others.

 

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While We’re Talking About Hypocrisy…

Over the years, opponents of equal civil rights for LGBTQ citizens manufactured all manner of secular justifications for their bigotry. They claimed that homosexuality was a mental disorder, that gay men were all promiscuous, that children require a “traditional” marriage between a male and female in order to thrive, and more.

There was no credible evidence for any of these assertions, and as a result, gay folks won important legal victories, including the right to legal recognition of same-sex marriage. Opponents of that progress are left with what has always been the actual justification for their animus: religious doctrine.

Thanks to the First Amendment’s religion clauses, doctrinal homophobia is a protected belief. Pastors can inveigh against homosexuality from the pulpit without fear of official sanction, and people who accept those beliefs are free to avoid socializing with gay folks.

What religious beliefs cannot be used to justify, however, is legal discrimination. When the 1964 Civil Rights Act was passed, some “Christians” opposed it because they claimed their religion required separation of the races and submission of women. The First Amendment doesn’t include a right to make those beliefs the law of the land.

The First Amendment protects religious belief. Civil rights laws protect members of marginalized groups from discrimination. What happens when those two rights collide?

In Indianapolis, we’ve seen recent examples of that collision. Two Catholic high schools have fired employees–guidance counselors and teachers of secular subjects–for the sin of same-sex marriage. 

Joshua Payne-Elliott, the teacher fired from Cathedral High School because of his same-sex marriage, is suing the Archdiocese of Indianapolis.

Until now, Payne-Elliott had not been identified publicly. His husband, Layton Payne-Elliott, is a teacher at Brebeuf Jesuit Preparatory School. They married in 2017. The couple have been at the center of a fight between their schools and the Catholic Church, which directed the schools to fire both men.

Brebeuf refused to fire Layton Payne-Elliott, so the archdiocese stripped the school of its Catholic status. Cathedral fired Joshua Payne-Elliott to avoid the same fate.

A lawsuit filed Wednesday in Marion County alleges that the archdiocese illegally interfered with Joshua Payne-Elliott’s contractual and employment relationship with Cathedral High School, causing Cathedral to terminate him.

“We hope that this case will put a stop to the targeting of LGBTQ employees and their families,” Payne-Elliott said in a news release

The Archdiocese is arguing that they are within their rights under the current jurisprudence of religious liberty, and that “religious organizations may define what conduct is not acceptable and contrary to the teachings of its religion, for its school leaders, guidance counselors, teachers and other ministers of the faith.”

Payne-Elliott taught world languages and social studies, and Cathedral confirmed that his termination had nothing to do with his performance. The principal acknowledged that he was a very good teacher. Evidently, Cathedral would have preferred not to fire him, but gave in to the demands of the Archdiocese.

Brebeuf, the Jesuit school that employs Payne-Elliott’s spouse, did not, and it deserves credit for its refusal to terminate him.

Given the current makeup of the U.S. Supreme Court, it is likely that the law will continue to favor assertions of religious doctrine over the civil and contractual rights of gays and lesbians. But  the court of public opinion is a different matter. After all, Catholic dogma isn’t confined to disapproval of same-sex marriage. Church doctrine opposes divorce, sex out of wedlock, adultery, even–as I understand it– refusal to attend mass, among other sins. To the best of my knowledge, Catholic schools haven’t been terminating teachers who transgress those rules.

Why this very selective enforcement of doctrine?

And why does the State of Indiana allow public voucher  funds to be used at schools like Cathedral and Roncalli that openly discriminate against a subset of Indiana citizens? Inquiring minds want to know–or really, we can guess.

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The Equality Act

Those of us who follow such things remember that Joe Biden endorsed same-sex marriage before Barack Obama did. (It is highly likely that Obama held that pro-equality position well before he was ready to publicly announce it, but his public position was undoubtedly  accelerated by Biden’s pronouncement.)

Now, Biden is reassuring the LGBTQ community that he will move swiftly to protect gay equality.

As president-elect, Biden is making sweeping promises to LGBTQ activists, proposing to carry out virtually every major proposal on their wish lists. Among them: Lifting the Trump administration’s near-total ban on military service for transgender people, barring federal contractors from anti-LGBTQ job discrimination, and creating high-level LGBTQ-rights positions at the State Department, the National Security Council and other federal agencies.

It’s impossible to disagree with Biden’s observation that Trump and Vice President Mike Pence “have given hate against LGBTQ+ individuals safe harbor and rolled back critical protections.” (Let’s be candid: the Trump/Pence administration has encouraged hatred against all people who are “other”–defined as not white Christian straight male.)

There is, of course, a limit to what can be done through executive action, and Biden has said that his top legislative priority for LGBTQ issues is the Equality Act.

The Equality Act was passed by the House of Representatives last year, but–surprise! not— stalled in the Senate. It would nationalize the comprehensive anti-bias protections already in place in 21, mostly Democratic-governed states, protecting against anti-LGBTQ discrimination in housing, public accommodations and public services.

According to the AP report at the link,

Biden says he wants the act to become law within 100 days of taking office, but its future remains uncertain. Assuming the bill passes again in the House, it would need support from several Republicans in the Senate, even if the Democrats gain control by winning two runoff races in Georgia. For now, Susan Collins of Maine is the only GOP co-sponsor in the Senate.

The Equality Act is opposed by the usual suspects, who are screaming that equal rights for gay people are “special rights” and an intrusion on their “religious liberty.”

These defenders of discrimination based upon the religious beliefs of some–certainly not all–denominations remind me of a long-ago committee hearing I attended in the Indiana legislature. That body was “considering” (note quotes) a bill that that would extend some measure of civil rights to gay Hoosiers. If my memory is correct, that bill was offered every session for several years by then-State Senator Louis Mahern, and just as routinely defeated. (Louie is a friend of ours, and once shared  a letter he’d received from a Hoosier “Christian” pastor, informing him that as a result of that advocacy, the pastor’s congregation was praying for Mahern’s painful death…)

In the hearing I attended, another Indianapolis pastor, now deceased–Greg Dixon, of the Indianapolis Baptist Temple–testified. He informed the committee that his bible commanded him to stone gay people (“sodomites”), and that any effort to prevent him from following that biblical command was an unconstitutional invasion of his religious liberty.

So there!

Every time the government proposes to eliminate discrimination against marginalized populations, we hear the same refrain from religious fundamentalists. The 1964 Civil Rights bill was opposed by people who claimed that God wanted black and white people separated and women subordinated.

The benefit of separating personal and civic behaviors–giving government and religion separate jurisdictions–is that we can allow these unpleasant people to discriminate in their personal lives, but forbid their efforts to make their hatreds the law of the land.

There should be no religious privilege to behave in ways that we collectively deem destructive to our social health.

As I like to say, if you don’t like gay people–or Black people or Muslims or Jews–then you don’t have to invite them to dinner. Thanks to separation of Church and State, however, you can’t tell landlords they need not rent to them or restaurant owners that they need not serve them.

America has just voted overwhelmingly to elect a mensch. Let’s hope he can get the Equality Act passed.

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Vindictive Exits

Many thanks to all of you who posted kind comments on yesterday’s post. I really appreciated them!

And now, back to our “originally scheduled programming”!

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Ever since the election, the media has been filled with stories about the ungraceful and vindictive exit of Trump Administration appointees. Confirming that administration’s utter disinterest in the common good, officials have been taking steps to make it as difficult as possible for the incoming Biden administration to function properly.

Of course, Republican moral nastiness isn’t limited to outgoing federal officials; here in Indiana, departing Attorney General/lecherous groper Curtis Hill is cementing his “Christian conservative” credentials by asking the U.S. Supreme Court to allow Indiana to strip parental rights from same-sex couples.

As Slate has reported,

On Monday, Indiana Attorney General Curtis Hill asked the Supreme Court to strip same-sex couples of their equal parenting rights. He did so at the request of the court, which is considering taking up his case. Hill implored the new conservative majority to rule that states may deny married same-sex couples the right to be recognized as parents of their own children. The case gives SCOTUS an opportunity to start chipping away at Obergefell v. Hodges by allowing states to withhold marital privileges from same-sex spouses. If the majority wants to begin eroding Obergefell, they will probably start here.

As the article notes, the case– Box v. Henderson–poses a question the Supreme Court has already answered twice. The plaintiffs in the lawsuit are eight married lesbian couples in Indiana who used a sperm donor to conceive. In Indiana, when a married opposite-sex couple conceives using a sperm donor, the state recognizes the birth mother’s husband as the child’s parent. When a lesbian couple does the same thing, however, Indiana refuses to list the birth mother’s wife as the child’s parent.

In both instances, the second parent has no biological connection to the child; Indiana’s decision to extend parental rights to the nonbiological husbands of birth mothers, but not the wives of birth mothers, is sheer discrimination.

Other states have read the Court’s decision in Obergefell v. Hodges to require such recognition. Obergefell held that the Constitution requires extending marriage to same-sex couples  “on the same terms and conditions as opposite-sex couples.”

When the Arkansas Supreme Court kept a birth mother’s wife off their child’s birth certificate, SCOTUS shot it down without even bothering to hear oral arguments. In 2017’s Pavan v. Smith, the court unequivocally ruled that states must issue birth certificates on equal terms to same-sex and opposite-sex couples. It announced a rule: If a state lists a birth mother’s husband as a parent despite his lack of biological connection, it must list a birth mother’s wife as a parent, too.

When Indiana’s case went to the 7th Circuit, a unanimous panel confirmed that precedent, and held that the state must treat same-sex couples the same way it does opposite-sex couples–but there was an unexplained delay in issuing that decision. According to the Slate article, the usual time lag between argument and decision is around three months; in this case it was 32 months. If the panel had issued its decision within a typical time frame, Indiana would in all likelihood given up, since Justice Kennedy–with an admirable record on same-sex issues– hadn’t retired, and Ruth Bader Ginsburg was alive.

But the Court has been changed, and not for the better. Kavanaugh has not previously shown support for LGBTQ rights, and Ginsburg has been replaced by Amy Coney Barrett, a frightening religious zealot. There are rumors that the new court “has its knives out for Obergefell.”

Which brings us to Curtis Hill, who is so slimy and self-aggrandizing that even Indiana’s retrograde GOP refused to re-nominate him. Hill has tried to distinguish Box v. Henderson from the applicable precedents by misrepresenting state law and claiming that the case is about a state’s right to acknowledge “biological distinctions between males and females.”

According to Hill, Indiana law only presumes that a birth mother’s husband is the father of her child. A birth mother’s wife, by contrast, “is never the biological father,” so she does not deserve the presumption of parentage.

If the Supreme Court sides with Indiana, and our departing creepy Attorney General gets the satisfaction of one last “owning the libs” moment, states will be able to resume discriminating against same-sex parents and, in effect, marking same-sex marriages as second-class.

I don’t know what makes these people into the petty and vindictive creatures that they so clearly are. I probably will never understand what sort of satisfaction they get by making life difficult and unfair for people they don’t even know.

I do know that we are well rid of them.

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When We Can’t Look Away

I’ve been harping on the role of pictures in generating social change–how the flood of visual testimony of racism, culminating in the video of George Floyd’s murder, has forced recognition of a reality too many Americans hadn’t previously understood–or wanted to acknowledge.

But a couple of recent columns–one by Michelle Goldberg and one by Russ Douthat–have expanded on that observation. Both writers suggest that seeing Donald Trump and experiencing the travesty that has been his administration have also been “pictures.”

Goldberg notes “two big examples” of how Trump’s presidency has triggered progress.

The sudden, rapid embrace of the Black Lives Matter movement by white people is a function of the undeniable brutality of George Floyd’s videotaped killing. But public opinion has also moved left on racial issues in reaction to an unpopular president who behaves like a cross between Bull Connor and Andrew Dice Clay.

And the thrilling 6-3 decision the Supreme Court just issued upholding L.G.B.T. equality wouldn’t be as devastating to the religious right if it had happened under a President Clinton.

Goldberg suggests that the Supreme Court’s LGBTQ decision dealt a real blow to the “but the Supreme Court!” argument made by conservative supporters of Trump. (And this was before the Court slapped him down on DACA.)

We’ve all encountered those people: yes, they’ll admit, Trump is an offensive ignoramus, someone we’d never socialize with or hire, but we need to support him in order to put conservative judges on the courts. (The argument used to be accompanied by “and look at your 401K!”–but that justification disappeared with Trump’s criminally incompetent “management” of the pandemic.)

The phrase “But Gorsuch” is shorthand for how conservatives justify all the moral compromises they’ve made in supporting Trump; controlling the Supreme Court makes it all worth it. So there’s a special sweetness in Gorsuch spearheading the most important L.G.B.T. rights decision since the 2015 ruling in Obergefell v. Hodges, which established a constitutional right to same-sex marriage.

Goldberg quotes one conservative for the sentiment that, if Trump’s appointees can’t  deliver Supreme Court victories to social conservatives, “there’s no point.” If that reaction means that social conservatives will be less enthusiastic about heading to the polls in November, it makes the Court’s decision even more satisfying.

On the Sunday before announcement of the Court’s decision (which, I am happy to report, was accompanied by others that cheered me: refusal to hear a challenge to California’s refusal to co-operate with ICE, refusal to hear challenges to state gun control laws, and one protecting the Clean Water Act) Russ Douthat, one of the conservative columnists at the Times, attributed the increasingly leftward shift of public opinion to Trump’s Presidency, suggesting that “so long as he remains in office, Trump will be an accelerant of the right’s erasure, an agent of its marginalization and defeat, no matter how many of his appointees occupy the federal bench.”

In situations of crisis or grave difficulty, Trump displays three qualities, three spirits, that all redound against the movement that he leads. His spirit of authoritarianism creates a sense of perpetual crisis among his opponents, uniting left-wingers and liberals despite their differences. His spirit of chaos, the sense that nothing is planned or under control, turns moderates and normies against him. And finally his spirit of incompetence means that conservatives get far less out of his administration than they would from a genuine imperial president, a man of iron rather than of pasteboard.

Douthat concludes that Trump has been little short of a disaster for conservatives.

What we are seeing right now in America, an accelerated leftward shift, probably won’t continue at this pace through 2024. But it’s likely to continue in some form so long as Trump is conservatism, and conservatism is Trump — and four more years of trying to use him as a defensive salient is not a strategy of survival, but defeat.

For principled conservatives–in contrast to the more numerous racists and homophobes who’ve adopted the label–the Trump Presidency has been that very bad car wreck at the side of the road–the one every passing car slows down to gape at. 

It’s a horrifying picture, and they can’t look away. None of us can–and the compelling pileups keep coming.

Friday’s effort to fire the U.S. Attorney for the Southern District of New York–this administration’s “Saturday night massacre”– looks to usher in an even more dramatic and compelling collision, as Barr frantically tries to keep the lid on pending disclosures and indictments…

Popcorn, anyone?

As a friend recently posted to Facebook, this isn’t government–it’s the Days of Our Lives. 

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