A federal judge today declared the Texas ban on same-sex marriage unconstitutional. The state’s refusal to recognize out-of-state same-sex marriages is also unconstitutional, he ruled. Today’s ruling is one in a line of decisions striking down state level marriage bans.
Statement by Rea Carey, executive director, National Gay and Lesbian Task Force:
“Everything is bigger in Texas and this ruling is an enormous leap forward for same-sex couples in the Lone Star state. Every time a judge strikes down a same-sex marriage ban, is yet another nail in the coffin of discrimination. It also hastens the day when all loving couples who simply want the ability to share the benefits and responsibilities of marriage can. While this ruling will now go to a higher court, and marriages in Texas will not happen immediately, this is a great day for love, freedom and justice.”
By Arielle P. Schwartz, Holley Law Fellow, National Gay and Lesbian Task Force
We have watched in wonder at the meteoric rise of legal protections for the LGBT community over the last year. The number of states with marriage equality has doubled in the last year, while states like Maryland continue to move this country forward by working to add explicit non-discrimination protections on the basis of gender identity. Unfortunately, the pace of change has sparked a backlash of discriminatory legislation in states like Arizona, Tennessee, Kansas, Idaho, Missouri, and Mississippi where lawmakers are supporting discriminatory measures.
The majority of the state bills are called “Free Exercise of Religion,” finding their reasoning hidden in the Religious Freedom Restoration Act (RFRA). RFRA is a 1993 United States federal law designed to prevent laws that substantially burden a person’s exercise of religion, unless the government can demonstrate that the burden (also known as the law) furthers a “compelling governmental interest” and is “narrowly tailored” to achieve that interest.
Why would states like Arizona feel the need to pass new laws “protecting the free exercise of religion” if we already have the RFRA?
Because in 1997, 4 years after RFRA was signed into law, the Supreme Court held in City of Boerne v. Flores that Congress only has the Constitutional authority to apply these restrictions to federal laws, and that applying RFRA to the states exceeded Congress’s authority. As such, some state lawmakers feel the need to codify blanket authority for people to refuse to provide basic public services to virtually anyone by claiming a religious belief.
The state “Free Religion” bills are problematic because they are so broad that “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization,” (like a restaurant, hotel, or bakery) can cite their religion as a tool to refuse service to someone who identifies as LGBT or exhibits some other trait “objectionable” to the owner, like pregnancy outside of wedlock or sporting tattoos.
For example, according to Arizona’s Senate Bill 1062, a business can refuse service to someone and claim that their freedom of religion is violated if they are forced to serve that person, as long as they show the following three requirements:
- That the person’s action or refusal to act is motivated by a religious belief.
- That the person’s religious belief is sincerely held.
- That the state action substantially burdens the exercise of the person’s religious beliefs.
Bibles condemn tattoos (Leviticus 19:28), rounded haircuts (Leviticus 19:27), divorce (Mark 10:11), and women speaking in places of worship (1 Corinthians 14:34-35). Should a restaurant owner legitimately be allowed to refuse service to someone because of their haircut?
Do you remember when the Oregon bakery “Sweet Cakes by Melissa” refused to bake a cake for a lesbian couple? Under Oregon law, individuals may not be denied service based on sexual orientation or gender identity from a private business. However, unlike Oregon, Arizona is amongst the majority of states that do not have statewide laws to protect individuals from discrimination based on their sexual orientation and gender identity.
Furthermore, these “refusal to serve” bills (sometimes called conscience clauses) can be deadly. They are narrow enough that medical doctors and hospitals can use their religion to refuse someone who needs an abortion, artificial insemination, birth control, emergency contraception, and patient referrals. In fact, the bills would allow medical doctors and hospitals to refuse to treat those who identify as LGBT.
In 1995, Tyra Hunter, a transgender woman, was injured in a serious car accident. The paramedics arrived and began treatment. In the course of that treatment, paramedics discovered that Tyra was transgender, and withdrew care. As she laid in the street, the paramedics who had been charged with saving her life were instead laughing and directing slurs at her.
It seems that even this would be legal under Arizona’s SB 1062.
We already see this sort of discrimination on a horrifyingly frequent basis. For example, the National Transgender Discrimination Survey found that 5% of trans people were denied equal treatment by an ambulance or EMT, 22% were harassed or disrespected in a doctor’s office or hospital, and an unbelievable 4% of transgender people were physically assaulted by police officers.
This recent influx of state discrimination is another reason why we need federally recognized legislation such as the Employment Non-Discrimination Act (ENDA). Our elected officials must be held accountable and enact laws that safeguard people who do not live in places like Oregon that have statewide non-discrimination protections. These bills negatively affect the economy, they are bad for business, and they are bad for families. There is no religious justification for refusing to provide someone a seat at the lunch counter or life-saving medical treatment.
This is just the start. Next month, the Supreme Court will hear oral arguments in a similar case that deals with businesses refusing to provide health insurance plans that include women’s reproductive care on the basis that women’s access to reproductive health is a violation of their religious views. Indeed, while this doesn’t seem like an LGBT issue on its face, this case has significant implications for the LGBT community.
We have exciting news out of Maryland this week - the Fairness for All Marylanders Act just passed a key hurdle by being voted out of the Senate Judicial Proceedings Committee by an amazing 8-3 vote. This bill would add explicit protections on the basis of gender identity to Maryland’s non-discrimination laws, making Maryland the 18th state to have such protections, and leaving only three states in the country that have sexual orientation but not gender identity state-wide non-discrimination protections.
The bill is expected to pass in the Maryland Senate. Efforts will now focus on the House bill, which has 61 co-sponsors with 71 votes needed to pass.
The Task Force has been a proud partner with Equality Maryland and the Maryland Coalition for Transgender Equality to work for a statewide trans-inclusive non-discrimination law. Our own Patrick Paschall spoke at the Fairness for All Marylanders Act Rally on Monday, and called for an end to discrimination in housing, employment, public accommodations, and other areas.
The Task Force has been deeply engaged in working to secure full legal protections for transgender people in Maryland. In December, the Hyattsville City Council passed a local version of the bill, becoming the first city in Prince George’s County, and only the fifth jurisdiction in the state of Maryland to add explicit protections for transgender people to their laws. The Task Force provided technical assistance in drafting the law, and Senior Policy Counsel Patrick Paschall who is also a Council Member on the Hyattsville City Council introduced the measure last fall. The bill passed unanimously on December 2nd.
This effort has been a springboard for raising the profile of the issue in Maryland. The Fairness for All Marylanders Act now heads to the House of Delegates for a hearing on March 5th, where the Task Force will testify in support of the bill.
By Arielle P. Schwartz, Holley Law Fellow, National Gay and Lesbian Task Force
Fascinated by a golf club created by Dr. Essay Anne Vanderbilt, writer Caleb Hannan started looking into the science and the scientist behind it. On Jan. 15, he published (posthumously) Dr. V’s Magical Putter, a personal reflection of his seven-month investigation, in the online sports blog Grantland. The National Gay and Lesbian Task Force took interest in Hannan’s piece because following Dr. Vanderbilt’s story, a transgender woman committed suicide last October.
According to Hannan, Vanderbilt agreed to focus on the benefits of the golf club in his writing and not on her, stating “my anonymity is my security as well as my livelihood.” In an effort to confirm Vanderbilt’s credentials as “legitimate,” Hannan discovered that Vanderbilt, the scientist behind the “scientifically superior” golf club, was also a transgender woman. What Hannan did next was reveal Vanderbilt’s gender identity to the main investor in her company—shifting the focus of his story from golf to the private life of an already fragile individual. The Washington Post has since stated, “outing a transgender person is not only a violation of privacy but also dangerous.”
Whether or not Vanderbilt was an MIT aeronautical physicist or a Wharton graduate, the golf club worked and Vanderbilt engineered it. According to the article, the last time Hannan heard from Vanderbilt was when she warned him that he was “about to commit a hate crime.”
Grantland writer Christina Kahrl published a poignant follow-up essay recognizing the irrelevance of Vanderbilt’s gender identity, the inexcusable indulgence of Hannan’s discovery, and his careless misgendering and ambiguous pronoun usage. She wrote:
[Vanderbilt] was a member of a community for whom tragedy and loss are as regular as the sunrise, a minority for whom suicide attempts outpace the national average almost 26 times over, perhaps as high as 41 percent of all trans people. And because one of her responses to the fear of being outed as a transsexual woman to some of the people in her life — when it wasn’t even clear the story was ever going to run — was to immediately start talking and thinking about attempting suicide. Again.
Did Hannan’s investigation lead to Vanderbilt’s suicide? We do not know for sure. We do know that outing—the act of exposing an individual’s sexual orientation and/or gender identity— has been linked to suicide. Marcus Wayman committed suicide after a police officer threatened to tell his family that he was gay. Thereafter, a federal court held in Sterling v. Borough of Minersville, that the Constitution of the United States clearly protects a person’s sexual orientation from forced disclosure. In 2010, Tyler Clementi committed suicide after classmates outed him on the internet.
The act of outing someone is detrimental because it is a violation of their privacy. Often people who are outed feel blindsided and forced to reveal a deeply personal part of their identity without their consent and under someone else’s terms. Coming out is a process and can be a difficult time for someone because of discrimination, homophobia, or potential marginalization from their families and community at large. People must choose for themselves how and when to come out.
Something as simple as changing your name can reveal insurmountable consequences and threatening challenges. How bad is it to out someone? Bad enough for the Social Security Administration to end its policy of outing transgender employees to employers in 2011.
If you or anyone you know has been outed and is experiencing suicidal thoughts and tendencies, know that there are resources available to talk about suicide and suicide prevention. The Trevor Project is a national organization providing crisis intervention and suicide prevention services to lesbian, gay, bisexual, transgender, and questioning young people. Befrienders Worldwide is a network of 169 emotional support centers in 29 countries who encourage one another in providing essential support to people in crisis. Learn more about how to raise awareness for suicide prevention here.
Vanderbilt’s conclusion: “Nobody knows my life but me…You don’t know what the truth is.”
By Arielle P. Schwartz, Holley Law Fellow, National Gay and Lesbian Task Force
Since the Supreme Court of the United States overturned Section 3 of the Defense of Marriage Act in United States v. Windsor, and restored marriage equality in California by invalidating Proposition 8, the judicial system is no stranger to the longstanding debate surrounding marriage equality. New Jersey, Hawaii, Illinois, and New Mexico have subsequently joined the right side of history and we continue to see the Courts interpreting the law in favor of love.
- In Utah, the United States District Court for the District of Utah held that Amendment 3 of the Constitution of Utah and similar statutes are unconstitutional because they deny same-sex couples their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.
- In Nevada, the United States Court of Appeals for the Ninth Circuit ruled that the ban on marriage equality is no longer justifiable—resulting from the recent decision that ruled sexual orientation cannot be a basis for discrimination during jury selection. What does this mean if Nevada still does not perform same-sex marriages? The Ninth Circuit has appellate jurisdiction over Alaska, Montana, Arizona and Oregon—all who have prohibitions limiting marriage to one man and one woman. This may be the push those states need to challenge marriage equality bans and Nevada may have set a precedent for their cases.
- On Wednesday, Feb. 12 (also the day that same-sex couples in Louisiana and Missouri filed lawsuits challenging marriage equality bans in their own state), a Kentucky court struck down Kentucky’s law that refused to recognize valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law. Judge Heyburn concluded:
For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society…many states deprived women of their equal rights under the law, believing this to properly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another’s constitutional rights…It is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them. Here as well, sometime in the not too distant future, the same understanding will come to pass.
Yesterday, Federal Judge Arenda L. Wright Allen of the United States District Court for the Eastern District of Virginia held in Bostic v. Rainey that Virginia’s statutory and constitutional prohibitions against same-sex marriage was unconstitutional, confirming that Virginia must recognize same-sex marriages that were carried out legally in other states. She continued by rejecting the defendant’s arguments around the notion of “tradition” as a reason to uphold the same-sex marriage ban, stating, “Tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.” The ruling was accompanied by a stay, meaning that same-sex couples cannot yet begin marrying in Virginia until the case can be heard by the Fourth Circuit Court of Appeals.
While the Supreme Court skirted the issue as to what level of judicial review they used when deciding Windsor, Virginia used strict scrutiny—the most stringent standard of judicial review used by United States courts. For a law banning same-sex marriage to pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. For a court to review the law under strict scrutiny, the legislature must have either notably curtailed a fundamental right with passing the law, or passed a law that involves a suspect classification. Suspect classifications generally include race, national origin, religion, and alienage.
The inconsistencies afforded to cases litigated around sexual orientation discrimination and what basis of review sexual orientation is afforded, may make this issue head to the Supreme Court of the United States in the not too distant future.
Judge Allen included a quote in her Virginia opinion from an address Mildred Loving delivered on June 27, 2007, the 40th anniversary of the landmark case Loving v. Virginia:
I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others…I support the freedom to marry for all. That’s what Loving, and loving, are all about.
Love truly is in the air and we wish you much love this Valentine’s Day.
(In other (breaking) news, the Colorado Senate passed the first bill which would align state tax filing procedures with federal filing procedures, allowing some same-sex couples to file joint state income tax returns).
Statement by Rea Carey, Executive Director, National Gay and Lesbian Task Force Action Fund:
At a time when many people (including a disproportionately high number of LGBT people) and their families face poverty, we are pleased that the President is signing today’s executive order to increase the minimum wage for federal contract workers. But to further help LGBT individuals and families, the President also needs to sign an executive order that bans discrimination against the same contract workers who are LGBT. Congress must pass the Employment Non-Discrimination Act and legislation to raise the minimum wage but the President must act when the American people want this change and Congress flatly refuses to do so.
Although the House bill that would have cut $40 billion from the Food Stamp budget was defeated, the farm bill signed into law by President Obama on February 7, 2014 still hits the pockets of SNAP recipients hard. Approximately 850,000 low-income households will see an average of $90 per month cut from their monthly food stamp allowance. A new report from the Williams Institute shows just how devastating these cuts are to our community.
Key findings include:
- More than 1 in 4 LGBT adults (29%), approximately 2.4 million people, experienced a time in the last year when they did not have enough money to feed themselves or their family
- More than one 1 in 5 LGB adults aged 18-44 (21%), approximately 1.1 million people, participated in the SNAP program through receipt of food stamps in the past year
- Same-sex couples raising children under age 18 are 2.1 times more likely than comparable different-sex couples to receive food stamps
- Approximately 1 in 4 bisexuals (25%) receive food stamps, compared to 14% of lesbians and gay men
- While nearly 1 in 4 White LGBT adults (23%) experienced food insecurity at some point last year, the figure was more than 1 in 3 for African-American LGBT adults (37%), more than 1 in 2 for LGBT Native Americans (55%), and more than 3 in 4 for Native Hawaiians (78%)