#SCOTUS

GOP Governors & Attorneys General Ask SCOTUS To Limit LGBT Workplace Protections

Republican governors and attorneys general from 16 states have asked the U.S. Supreme Court to rule that LGBT employees can be fired based merely on their sexual orientation and gender identity.

The states that signed onto the friend-of-the-court brief are Nebraska, Alabama, Arkansas, Kansas, Louisiana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wyoming, Maine, Mississippi, and Kentucky.

Currently, only 20 states plus Washington, D.C. have passed laws expressly banning LGBT discrimination in the workplace.

A study by the Human Rights Campaign in 2011 showed 87% of voters erroneously believe its illegal under federal law to fire someone just for being LGBT.

Its notable that Maine and Utah, two of the 20 states that have LGBT workplace protections in place, have signed on in support of the brief.

The request to the Supreme Court comes in response to a lawsuit brought by the Equal Employment Opportunity Commission on behalf of a transgender funeral home employee in Michigan, Aimee Stephens, who was fired in 2013 after sharing with her supervisor she was transitioning.

In 2017, the 6th Circuit Court of Appeals ruled that Harris Funeral Homes illegally discriminated against Stephens in firing her referencing Title VII of the 1964 Civil Rights Act which bans workplace discrimination based on sex.

At the time, Judge Karen Nelson Moore of the 6th Circuit wrote in the opinion that anti-trans discrimination is inherently sex based.

“[I]t is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” she wrote. Businesses that discriminate against a worker on the basis of being “transgender or transitioning status,” is taking sex into account thus violating Title VII.

Led by Nebraska Attorney General David Bydalek, the 16 states are asking SCOTUS to overturn that appeals court decision saying Congress didn’t intend for the ban on sex discrimination in Title VII to cover bias against lesbian, gay, bisexual, or transgender employees.

“The States’ purpose is to note that ‘sex’ under the plain terms of Title VII does not mean anything other than biological status,” Bydalek wrote.

The Supreme Court will decide this fall whether to take up the case.

(h/t Bloomberg Law)

BREAKING: Judge Brett M. Kavanaugh Nominated to the Supreme Court by Donald Trump

Donald Trump just announced his nominee for new Supreme Court Justice. Brett M. Kavanaugh was announced during a White House presentation on July 9th. Kavanaugh, 53, is a federal appeals court judge and former aide to George W. Bush. Kavanaugh is a known advocate of ‘religious freedom’ and the appointment of this conservative will certainly galvanize voters before the midterm elections.

Just as we reported about Trump’s potential SCOTUS picks, Kavanaugh will change the balance of controversial battles such as abortion, LGBTQ rights, and capital punishment. Kavanaugh’s nomination comes after Justice Anthony Kennedy announced his retirement at the age of 81 in June. Justice Kennedy was typically the swing vote on highly contentious issues.

Kavanaugh still faces approval of the Senate, but if successfully appointed, it will be the first time in over 30 years that we have a conservative majority in the Supreme Court.

This is Trump’s second nomination for the Supreme Court. Upon Antonin Scalia’s death in 2016, Trump selected Justice Neil M. Gorsuch as his successor. Gorsuch has voted similar to Scalia, which hadn’t impacted SCOTUS ruling very much according to The New York Times.

With regard to LGBTQ rights, NBC reports:

Kavanaugh was“promoted heavily by the Family Research Council in 2005” when he was initially nominated for the U.S. Court of Appeals for D.C. Circuit. The Family Research Council, like the Alliance Defending Freedom, has been designated an anti-LGBTQ “hate group” by the Southern Poverty Law Center and is an outspoken opponent of LGBTQ rights, claiming homosexuality is “harmful” and “unnatural.” It is not clear, however, whether Kavanaugh agrees with the group’s anti-LGBTQ views.

During his announcement, Trump said:

Regarding one of the most profound responsibilities of the President of the United States… this is one of the most important decisions a President can make.

Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law.

He is a brilliant jurist with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time.

You can watch the announcement here:

h/t: The New York TimesNBC

Family Research Council's Tony Perkins Says "Game On" For Upcoming SCOTUS Pick

Since the announcement of Supreme Court Justice Anthony Kennedy’s retirement, LGBTQ activists and advocates have expressed their deep concern about the community’s rights and protections being threatened by what will be a much more conservative successor.

Over the weekend, in an interview with Fox Business Network's Maria Bartiromo, Trump said he was "putting conservative people" on the high court, but “probably not” ask beforehand how those nominees might vote on specific issues.

What he didn’t say in his answer is he doesn’t have to ask. Trump has a pre-selected list of 25 candidates that have already been vetted by the ultra-conservative Federalist Society. It’s a foregone conclusion that all of them have been screened for far-right positions on the law.

While its unlikely that marriage equality would ever be overturned in a wholesale manner, what many legal experts say consider possible is the Supreme Court handing down ‘carve outs’ in rulings regarding ‘religious liberty’ that would allow for legalized discrimination of LGBTQ people.

This morning, hate group leader Tony Perkins, of the virulently anti-LGBTQ organization Family Research Council, made clear on Fox News exactly what his faction of conservatives are looking at in a new Supreme Court justice.

“Given the fact that the left wants to make this all about abortion –  I think it’s much bigger, I think we have religious liberty, we’ve got freedom of speech, the First Amendment in the crosshairs of the left.

“But they want to make it about life and if I were the president, I’d say, ‘Game on. I’m going to pick someone that’s beyond reproach.’ I think this supercharges the president’s base to get behind him in his pick and I think that spills over into the midterm election.”

Even though Trump falsely campaigned on the premise he would be an “LGBT ally,” his actions since taking office have demonstrated exactly the opposite.

Buzzfeed’s Dominic Holden has compiled a list of the many ways the Trump administration has worked against the LGBTQ community including:

 

Reversed a federal policy that said transgender workers were protected from discrimination under Title VII of the Civil Rights Act of 1964

• Argued that its legal to fire LGBTQ employees for being gay

Supported Colorado baker Jack Phillips at the Supreme Court for turning away gay customers

Withdrawn guidance that said Title IX of the Education Amendments of 1972 bans anti-transgender discrimination in federally funded schools

• Proposed banning transgender service members in the U.S. military

• Declined to appoint an LGBTQ liaison for the White House that would help communication between the administration and LGBTQ organizations and advocates

 

This is clearly a time that we, as a community, have to stay woke. We have to stay vigilant. We have to be involved.

And most importantly, we have to vote.

This was created by one of our Contributing Writers and does not reflect the opinion of Instinct Magazine or the other Contributing Writers when it comes to this subject. 

Stephen Colbert: Justice Kennedy's Retirement Could Affect Marriage Equality

Stephen Colbert used his opening monologue last night on The Late Show to lament the announcement that Justice Anthony Kennedy is retiring from the Supreme Court.

“If you’re on a low-carb diet, you’re in luck, because there ain’t no way to sugarcoat this,” Colbert began. “Justice Anthony Kennedy announced he’s retiring from the Supreme Court. I never thought I’d say this but you’re only 81. You know what they say, they say 81 is the new 79!" 

"And don’t tell me your mind’s going. Because I’ve read Bush v. Gore and Citizens United, you never had one!”

“Oh, we are supremely screwed,” the funny man continued. “I look forward to Wolf Blitzer in 2021, ‘In the end, this Supreme Court case will be decided by the swing vote, Justice Meat Loaf.'”

He added: “The court that just this week crippled unions, upheld Trump’s Muslim ban and race-based gerrymandering might turn conservative. So enjoy your gay marriages now, because as of August 1st you’re back to being roommates.”

Colbert offered his thoughts on who Donald Trump might nominate to replace Kennedy:  “I could see Trump appointing Giuliani just to keep him off television.”

Colbert also took a few shots at Senate Majority Leader Mitch McConnell who told the press yesterday that Trump’s nominee “must be treated fairly.”

“Oh really?,” said Colbert. “That’s like Typhoid Mary saying, ‘Read the sign, guys, all employees must wash hands.’”

Watch the segment below.

 

 

The 'Swing Vote' In Many Important LGBTQ Decisions, Justice Anthony Kennedy Announces Retirement

Supreme Court Justice Anthony Kennedy has announced his retirement.

"It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court," Kennedy said in a statement.

In his official letter to President Trump, Kennedy said his resignation would be effective July 31.

Kennedy has been the all-important 'swing vote' for years now. 

Tom Goldstein, a Washington lawyer who argues frequently before the court and publishes the SCOTUSblog web site, told NBC News, "Justice Kennedy was the most important member of the court in a century, maybe ever.'

Appointed by President Ronald Reagan, Kennedy is responsible for many important rulings in favor of the LGBTQ community:

• He authored the court's opinion for the 1996 ruling in Romer v. Evans, which reversed a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. 

• In 2003, he wrote the Court's opinion in Lawrence v. Texas, which invalidated anti-sodomy laws on the basis of the Due Process Clause of the United States Constitution

• On June 26, 2013, the Court ruled Section 3 of the hideous Defense of Marriage Act was unconstitutional in United States v. Windsor. That decision, penned by Kennedy, required the federal government to recognize all legal marriages. 

• On June 26, 2015, Kennedy authored the majority ruling in Obergefell v. Hodges, which made marriage equality legal in every state of the country. 

But there were times when Kennedy was not our friend as well:

• In the 2000 case of Boy Scouts of America v. Dale, Kennedy and four other justices voted to uphold the Boy Scouts of America's right to ban gays from being scoutmasters.

• More recently, he authored the 7-2 Masterpiece Cakeshop ruling which found Colorado baker Jack Phillips didn't get a fair shake when he was fined for refusing to sell a wedding cake to a same-sex couple.

Kennedy was also responsible for helping to gut the Voters Rights Act and the dreadful Citizens United decision.

The vacancy gives Donald Trump another opportunity to turn the nine-member court even more conservative after the addition of Justice Gorsuch last year.

With five solid conservatives justices on the court, the high court could repeal or limit LGBTQ rights, repeal the right to abortion, and more.

SCOTUS Decision In Masterpiece Cakeshop Case Is Not A Terrible Thing?

My first reaction was to repost this horrible news, U.S. Supreme Court Rules In Favor Of Anti-Gay Colorado Baker, and ask the question. "We can refuse to serve republicans and religious people, right?"

I do need to look further into that question, but in the mean time, one of Instinct's friends, Tim Peacock, from Peacock Panache, agreed to let me share his take on the ruling. You can read his entire SCOTUS ruling piece, Masterpiece Cakeshop Narrowly Wins Supreme Court Case, on his Panache website

Here's the bigger chunk of his explanation of what this ruling means. 


Oral Arguments

Following oral arguments presented to the high court in December 2017, observers predicted a victory for the cake maker in being able to legally discriminate against LGBTQ people using his religious beliefs as a legal shield to circumvent state public accommodation law.

We wrote last year:

Following the 90 minute oral arguments before the U.S. Supreme Court today in the Masterpiece Cakeshop case, observers almost unanimously voiced concerns that the high court appears ready to side against LGBTQ public accommodation protections in lieu of granting a ‘religious liberty’ exception to business owners. Such a ruling would have a devastating effect on state and local level anti-discrimination laws meant to protect LGBTQ people from differential treatment.

The Washington Post offered similar thoughts:

Kennedy, who wrote the court’s 5 to 4 decision in 2015 saying gay couples have a constitutional right to marry, speculated about what might happen if a decision in baker Jack C. Phillips’s favor prompted requests for bakers across the country to refuse to make cakes for same-sex couples. Would the federal government feel vindicated? Kennedy asked.

On the flip side, just moments later, Kennedy sharply questioned Colorado Solicitor General Frederick R. Yarger. The justice seemed offended by a comment made during the deliberations of the Colorado Civil Rights Commission when one commissioner said: “And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

At one point, Kennedy and some conservative justices raised the possibility that the proceedings against baker Jack C. Phillips had been infected by bias.

It would be this particular “possibility” that ultimately led seven of the nine sitting justices to rule in Jack Phillips’ favor. Using the argument that pointing out use of religious belief as a weapon to harm others – something Jack Phillips did when he used his religious beliefs to deny free market access to a gay couple – is a “despicable” form of “rhetoric,” the high court sided with the anti-gay cake maker.

We noted after oral arguments concluded:

Arguing that because the Colorado courts did not recognize Jack Phillips’ inherent right as a Christian to tell same-sex couples he would not serve them in his business open to the public, Kennedy appeared ready to side with the bakery and against LGBTQ people’s civil rights.

Noting the importance of the case, Justice Stephen Breyer commented during oral arguments that the high court should be careful as they do not want to “undermine every single civil rights law.”

But a decision allowing one exception to public accommodation law on the grounds of ‘religious liberty’ would be a Pandora’s box – something the left-leaning justices of the court pointed out.

They questioned who else in the business world could consider their product “art” protected by the First Amendment, offering the very slippery slope conservative organizations like Alliance Defending Freedom would indubitably seize upon in other cases they’re handing similar to the Masterpiece Cakeshop case.

Following those arguments, the high court clearly took Justice Breyer’s comments into account in finding a way to simultaneously rule in favor of Phillips while preserving the integrity of existing state and local public accommodation laws.

The Decision

The Masterpiece Cakeshop majority decision is written as and is intended to be an “exception” case – a narrow decision not intended to be used as precedent in any future case. (Then again, that was the intent in Hobby Lobby and look how that turned out).

The court found:

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments.

The high court added:

The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the [Colorado Civil Rights] Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism.

In the SCOTUSBlog live blog of the decision, Eric Citron noted:

The decision here looks intentionally factbound to me:  This is more about how the Colorado Commission considered Phillips’ particular case, and substantially less about whether there might or might not be a right under the constitution to refuse compliance with a neutral law forbidding discrimination on the basis of sexual orientation in public accommodations.  In that respect, this holding is not going to resolve the underlying politically charged controversy.

The majority opinion’s introduction confirms this. It states, “Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.”

What’s unclear – and SCOTUSBlog appears to agree – is if Phillips will have to go through another round of legal hearings beginning at the level the high court found unacceptably biased (the state civil rights commission).

Justice Kagain’s concurring opinion confirms the narrow-but-solid belief that Phillips did not receive an unbiased hearing. Arguing Colorado has the right to protect LGBTQ people, they “can treat a baker who discriminates based on sexual orientation differently from a baker who does not” adding the caveat that any hearing or case must “not infected by religious hostility or bias.”

Summing up the high court’s ruling, SCOTUSBlog’s Eric Citron added:

One version of the question presented in Masterpiece is:  “Does the Constitution give wedding cake bakers a right to refuse service to homosexual couples on the basis of a religious objection, even if a State generally prohibits discrimination in public accommodations on the basis of sexual orientation.”  That is the “Right not to bake a cake” version.  The Court does not answer that question.  Instead it holds that the way the Colorado commission considered Mr. Phillips’ case showed substantial hostility toward religion.  That preserves the possibility that a State could enact a law prohibiting discrimination against homosexual couples and constitutionally apply it to a baker who refused service to a gay couple.

Which is to say, today’s decision is not the doomsday scenario many thought the case would be.

Aftermath

This may come off as an unpopular take, but the Supreme Court’s decision in Masterpiece Cakeshop is not a terrible thing. While in the short term Jack Phillips and the religious right wing community have cause to celebrate, the high court actually established some fairly strong groundwork and guidelines activists can work with to win future cases.

For starters, they clearly established the cause for their decision: bias. The state commission that heard Phillips’ case allegedly demonstrated bias against his religious beliefs when hearing the case – at least, that’s how the conservative side of the high court interpreted it. In the court’s majority and concurring opinions, this is repeatedly referenced.

The opinion’s first page establishes this, in fact:

The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.

While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.

[Emphasis Mine]

Kennedy took careful measure to cite the rights and privileges LGBTQ couples hold as recognized by the historic Obergefell v. Hodges ruling while balancing that with the notion that courts must be unbiased in reaching conclusions on breaches of those rights and privileges.

In his opinion, Justice Kennedy explicitly noted, “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

This is clearly a road map for any state, going forward, to ensure their Tenth Amendment right to offer  legal protection to LGBTQ people meets constitutional scrutiny.

On the flip side, the Masterpiece Cakeshop decision once again punts on making any substantial statement on LGBTQ civil protections and will undoubtedly be used by the anti-gay religious right to continue their legal battle against LGBTQ civil rights.

You can read the Masterpiece Cakeshop opinions here.


What do you think of Tim's interpretation? 

Are we screwed? 

Do you feel people will realize that this is a judgment on just this instance and not to be used to uphold further discrimination?

 


Tim Peacock

Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

U.S. Supreme Court Rules In Favor Of Anti-Gay Colorado Baker

The U.S. Supreme Court has just ruled in favor of an anti-LGBT baker in Colorado who refused to make a wedding cake for a same-sex wedding.

With Justice Anthony Kennedy writing for the majority, the court rules that when the Colorado Civil Rights Commission considered the Masterpiece Cakeshop matter "it did not do so with the religious neutrality that the Constitution requires."

The plaintiffs argued that the Colorado Civil Rights Commission showed animus against baker Jack Phillips suggesting that members of the commission believed that Phillips claimed religious freedom in an effort to justify discrimination.

From the Associated Press:

The Supreme Court ruled Monday that a Lakewood baker who refused to make a wedding cake for a same-sex couple because of religious beliefs did not violate Colorado’s anti-discrimination law. The case pitted Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, and the couple, Charlie Craig and David Mullins. The court ruled that the Colorado Civil Rights Commission’s actions violated the free exercise clause. In arguments before the court in December, Justine Anthony Kennedy, the author of all the court’s major gay-rights cases, worried that a ruling in favor of Phillips might allow shop owners to put up signs saying “We do not bake cakes for gay weddings.”

Only Justices Ginsburg and Sotomayor opposed the narrow ruling in favor of the baker.

In his conclusion, Kennedy makes clear that the narrow ruling here only addresses vacating the decision by the Colorado Civil Rights Commission regarding religious neutrality.

Kennedy stresses that this ruling does not set a precedent to legalize discrimination against gay persons "seeking goods and services in an open market."

From the last paragraph of the ruling:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Lambda Legal issued a statement which read, in part:

The Court today has offered dangerous encouragement to those who would deny civil rights to #LGBTQ people and people living with #HIV. Religious freedom under our Constitution has always meant the right to believe whatever you wish but not to act on your beliefs in ways that harm others. The Court alarmingly fails to heed that distinction.

From Buzzfeed's legal expert Chris Geidner: