DC Upholds Same Sex Marriage

Amie Newman

In a narrow ruling last week, the DC Court of Appeals upheld a lower court ruling barring a referendum by opponents of a recently enacted law legalizing same sex marriage in the District.

A DC Court of Appeals, in a 5-4 ruling last week, upheld same-sex marriage in the District. The ruling was in response to a prior decision, by the DC Board of Elections and Ethics, not to allow voters to decide on the issue via a referendum process in the District.

According to the Washington Post, the DC Council approved same sex marriage in December 2009. The bill then became law, after a court upheld the council’s decision, in March 2010. This most recent court decision confirmed a lower court’s ruling when it disallowed a ballot measure to move forward “because it would promote discrimination against gay men and lesbians.”

It’s essentially what the most recent ruling from the DC Court of Appeals stated as well:

The judges said they were convinced that the council would not have authorized “any initiative” that would have discriminated against residents and violated the Human Rights Act. The judges also wrote that the board “correctly determined that the proposed initiative would have the effect of authorizing such discrimination.”

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

The judges further stated that the council “was not obliged to allow initiatives that would have the effect of authorizing discrimination prohibited by the Human Rights Act to be put to voters, and then to repeal them, or to wait for them to be challenged as having been improper subjects of initiative, should they be approved by voters.”

Bishop Harry Jackson, pastor of Hope Christian Church, led the charge against the same sex marriage law arguing through his lawyers that DC residents were being discriminated against by taking away their right to vote on this issue. In response to the DC Court of Appeals ruling, Austin Nimocks, senior legal counsel for the Alliance Defense Fund, one of the key opponents to same sex marriage, argued:

“In America, we respect the right to vote. The citizens of the District of Columbia should not have their voices suppressed by the government, but that is exactly what is happening here. The decision from the D.C. Court of Appeals means that those living in our nation’s capitol are being denied their most fundamental freedom: the right to vote. We are considering our options to right this wrong, which include asking the U.S. Supreme Court to consider this case.”

According to the Washington Post article on Friday, July 16th, the four dissenters in the opinion specifically noted that they were not ruling against same sex marriage but questioned whether the Board was acting within the scope of the law by refusing to allow a referendum on the issue.

Alliance Defense Fund and their partner in the case, Stand4Marriage, are “considering an appeal to the U.S. Supreme Court.”

News Law and Policy

Texas Court Greenlights Discrimination Against Transgender Students

Jessica Mason Pieklo

The ruling was not a decision on the merits of the Obama administration’s policy, but rather whether it followed the correct procedure in crafting it, U.S. District Judge Reed O’Connor wrote.

A federal judge in Texas on Sunday issued a preliminary injunction barring the Obama administration from enforcing guidelines designed to protect transgender students from discrimination in schools.

The ruling came in the multi-state lawsuitTexas v. United States, challenging the Obama administration’s guidance to schools that receive federal funding that transgender students must be given access to bathrooms that align with their gender identity rather than their biological sex.

Schools that defy the White House’s guidance would face potential loss of funding or federal lawsuits.

The lawsuit brought by Texas and states including Alabama, Georgia, Oklahoma, and Tennessee, targets various federal memos and statements that served as the foundation for the administration’s position that the Title IX of the U.S. Education Amendments of 1972 federal ban on sex discrimination encompasses gender identity discrimination. The administration charges that transgender people should be allowed to use restrooms consistent with their gender identity.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

The administration overstepped its authority in issuing the statement in violation of both the Administrative Procedure Act and the Constitution, according to the states challenging the guidance.

A nearly identical lawsuit challenging the White House’s policy was filed recently by the state of Nebraska. That lawsuit was joined by Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming.

U.S. District Judge Reed O’Connor wrote that the administration failed to engage in the proper administrative rule making process when directing schools to not discriminate against transgender students in access to restrooms and facilities. The ruling, O’Connor wrote, was not a decision on the merits of the administration’s policy, but rather whether it followed the correct procedure in crafting it.

“This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school,” O’Connor said in his ruling. “The resolution of this difficult policy issue is not, however, the subject of this order.”

Sunday’s ruling comes shortly after the Supreme Court put on hold a federal appeals court ruling ordering a Virginia county school board to allow a transgender student access to the restroom that aligned with his gender identity.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

credo_rewire_vote_3

Vote for Rewire and Help Us Earn Money

Rewire is in the running for a CREDO Mobile grant. More votes for Rewire means more CREDO grant money to support our work. Please take a few seconds to help us out!

VOTE!

Thank you for supporting our work!