Posts Tagged As: Discrimination

What Does the Hobby Lobby Decision Mean For LGBT People?

Jim Burroway

June 30th, 2014

Today, the United States Supreme Court ruled that Hobby Lobby and other closely held corporations and family-owned businesses may not be compelled under the Affordable Care Act (ACA) to provide contraception coverage as part of their employees’ health plan if doing so would violate the company’s sincerely-held religious beliefs under the Religious Freedom Restoration Act (RFRA). I can sort of understand how a family that owns a family-owned business can hold strong religious beliefs, but I’m still unclear how that applies to public corporations, not matter how closely owned it may be. (Did Hobby Lobby’s corporate charter have to undergo baptism by immersion, or would sprinkling do?) But at any rate, that is now the law of the land, and it has LGBT-rights advocates on edge because it may be an opening toward allowing companies to deny spousal benefits to same-sex couples, whether it is health benefits, medical leave, etc. It will probably take several more lawsuits and several more rulings before we have a clearer picture of how broad or narrow this ruling will actually turn out to be. Writing for the majority, Justice Samuel Alito tried to cage the ruling this way (PDF: 512KB/95 pages):

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

The federal government has expressed its compelling interest in prohibiting racial discrimination through the Civil Rights Act of 1964 and several other laws promulgated by Congress and regulations by the Executive branch. Some states have anti-discrimination laws that cover sexual orientation, and a subset of those also cover gender identity. Those laws may provide some protections at the state level since the RFRA applies only to federal law, but it remains an inconsistent patchwork that varies state to state. Meanwhile, Congress has long failed to pass the Employment Non-Discrimination Act and prior anti-discrimination proposals dating back to the 1970s. In fact, several LGBT-rights organizations are now dropping their support for ENDA because it would provide broad religious-based exemptions similar to the Arizona “Religious Freedom” bill that Gov. Jan Brewer vetoed this year. So since the federal government has not identified discrimination on the basis of sexual orientation or gender identity as a compelling interest, it would seem to me that LGBT people will be made particularly vulnerable because of this decision. The principle dissent, written by Justice Ruth Bader Ginsburg, agrees:

Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc ., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ‘d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ‘d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn.1985) (born-again Christians who owned closely held, for profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”?

There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear, has ventured into a minefield by its immoderate reading of RFRA.

I think it’s noteworthy that Alito addressed the first objection in Ginsburg’s dissent concerning racial discrimination, but not the other examples. SCOTUSblog noticed that omission as well:

With respect to implications for other kinds of religious-based discrimination, the Court writes that racial discrimination in hiring will not be permitted under RFRA because “The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive that critical goal.” Note that this leave open the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation.

Why I’m not panicked about the Mississippi bill

Timothy Kincaid

April 2nd, 2014

The Mississippi Senate and House have passed a bill (similar to that vetoed by Arizona Governor Brewer) which would formally legalize discrimination in that state, so long as such discrimination is “substantially motivated by one’s sincerely held religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief”.

It is a rather nasty piece of work which was formulated out of animus and is intended as a tool to deny rights to gay people.

But I’m not particularly worried about this bill.

Instances of actual anti-gay discrimination in the provision of services are infrequent. Even in the Deep South, there is little advantage to be had by turning down business from gay customers.

There’s just not much to be gained by alienating customers. Maybe a few moments of internet celebrity and the promise of a few new strident anti-gay sales, but “we don’t sell to those type of people” is not a very effective marketing plan. Most folks would rather stay out of your war – and out of your store – irrespective of their own beliefs.

And the evidence of that can be seen in that despite the anti-gay industry’s ever-vigilant search for fresh martyrs to parade, only a handful of Jesus-lovin’, sin-hatin’, concerned Christians have been found nationwide who have been willing to destroy their livelihood for the cause. Elane Photography, a couple of bakers, and a florist or two. Oh, and some cookie baker and a venue in Texas. Most of whom were not even required by ordinance or law to offer service to gay people.

But even if such discrimination were ubiquitous in Mississippi, this bill changes nothing. There is no corner of the state in which gay people are protected from discrimination. No bakers or florists or bed and breakfast inn masters are limited from turning away gay people at the door. There is not even one city ordinance in the state that requires equal service to gay customers.

As for the anti-gay efforts, this bill gains them nothing. It’s merely a public statement of derision towards a segment of their population.

However, it does have the potential to facilitate some outcomes that hardcore conservative Christians do not predict, and will not like. These bills almost always do.

Those, such as the Mississippi legislators, who seek laws that advantage conservative Christians suffer from too much belief in their own rhetoric. They are part of a worldview that has some misperceptions:

1. They are the only real people of faith.

It baffles me how this perception manages to keep hold when all evidence is to the contrary. But in the minds of these people, if you are a person of faith then you obviously believe the Levitical commands in precisely the same way they do.

They don’t consider that them there liberal sin-compromisin’ feel-goody pseudo-Christians will get the exact same legal rights under these sort of laws as True, Bible-believing, born-again People of God.

2. They are a persecuted people.

It may be hard to take seriously the notion that the state and local officials in Mississippi are in some way out to get the Christians. But when you believe that Satan is using the principalities and powers of the world to attack the Body of Christ, you can hear about some preacher who was arrested in Sweden and fear that Sheriff Billy Bob Honeycutt is about to do the same.

It hasn’t occurred to these legislators that real persecuted people – the religious minorities in Mississippi – may now actually have a tool by which to empower their freedom.

3. God’s hand is in whatever they do

There is a form of circular reinforcement that can result in astonishing stupidity. Much of what you hear from Pat Robertson is based in this thinking. It goes like this:

I am a child of God. I seek God’s will in my life in what I do and say. I believe that God speaks to my heart and inspires me to move in the direction that he knows is best in my life. Therefore, when I strongly believe something, I know that it is inspired by God. And as God never lies or works against that which is good, whatever batpoop idiotic nonsense that I am spouting at any given moment is backed up by the creator of the universe.

Because they all agree that God wants them to stand up against the homosexual agenda, and because the homosexaul lobby opposes this bill, then it must be inspired by God and a wonderful victory for His Kingdom.

And so they’ve passed a phenomenally stupid bill that is likely to bite them in the ass. In fact, it’s likely to have the exact opposite impact of what they expect.

It certainly wouldn’t be the first time. Remember in the 80’s when there was a big ruckus because some Bible Clubs had been restricted at some school or other? Well Congress rushed to fix that with the Equal Access Act, which required that if a school allowed any extra-curricular organizations then it had to allow all such groups.

And for about ten minutes there were Bible Clubs on a handful of campuses (until students realized that the idea of a Bible Club was much sexier than actually trying to read the book). But the largest impact of this law is the opposite of its intention; mostly, this law is what requires schools to allow gay-straight-alliances on campus. In court case after court case, anti-gay school boards have been told that if they want to ban support groups for LGBT kids, they also had to ban the chess club and the Fellowship of Christian Athletes.

It is, of course, far too early to know what kind of repercussions will result from the Mississippi Freedom Restoration Act. But here are a few scenarios that the language of the law would appear to cover:

Should there be a Muslim woman who is a state employee, local concerns or sensibilities will now have no say in her choice of clothing, provided that she has a sincerely held religious belief. Burka, baby!

Rastafarians, Native Americans, and others whose religious beliefs incorporate use of mind altering substances now have a much higher bar by which they are to be denied access to the implements of their worship. Now drug enforcement officers must prove “a government interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion”. I predict a large conversion to such faiths.

The Knights of the Ku Klux Klan are a religious organization. They have lost favor in the nation, even in the South, as social and civil disapproval has taken the forefront. And the federal Civil Rights Laws disallow discrimination against people on the basis of race, so this law will not override that protection. But it would protect the state employee who wants to wear KKK insignia to work. And it will cause all sorts of havoc.

And, most ironically, they were blind to the most obvious scenario, the one jumping up and down in front of them waving its arms:

“Exercise of religion” includes, but is not limited to, the ability to act or the refusal to act in a manner that is substantially motivated by one’s sincerely held religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

One of the phenomena that we have seen recently is the deeply-held religious conviction on the part of some people of faith that denying gay people equality is an injustice and an immoral attack on a child of God. Some are rather visible, such as Episcopalians or UCC or Lutherans, in which the denomination is on their side. But some, such as a recent spate of Methodists, are willing to defy their church and risk defrocking in order to fulfill their fealty to God.

Even if no denomination states that it is sinful to discriminate against gay people, some clergy have made this case. And surely there is among the 82 counties in Mississippi at least one clerk who compelled by his faith to offer marriage certification to same-sex couples just as he would to opposite-sex couples. And this law says that state action cannot burden his religious act of faith.

Mississippi just opened for themselves a colossal can of worms. Funny how animus, arrogance, and self-righteousness can work that way.

Fournier compares Arizona bill to segregation

Timothy Kincaid

February 27th, 2014

Ron Fournier, a conservative writer, made some interesting comparisons between the (now vetoed) Arizona bill to legalize discrimination against gay people and the efforts to keep segregated schools in the South. Rather than focus on the similarities or differences between the two efforts, he discusses the motivations and justification. (National Journal)

For me, it starts with the time I spent in Arkansas with Faubus, Bates and Clinton, several members of the Little Rock Nine and countless others touched by the 1957 crisis. Faubus began his career as a progressive Democrat who desegregated state buses and public transportation and considered the possibility of introducing multi-race schools after his 1954 election. A challenge from his right prompted Faubus to adopt a segregationist stance, which he disingenuously insisted was not a matter of race. With public opinion so strongly against the Supreme Court ruling in 1957, Faubus argued that integrating would undermine the safety of all students.

Safety was his straw man. Religious liberty, like public safety, is a just cause, except when it’s used to justify intolerance.

“This bill … bars government discrimination against religious exercise,” Tony Perkins, head of the conservative Family Research Council, said of the Arizona measure, “so by vetoing this bill, Gov. Brewer is saying she supports government discrimination against people’s religious freedom.”

No, that’s not what she’s saying. Brewer no more supports religious discrimination than Eisenhower encouraged violence in public schools. Perkins knows better, and his inflammatory language hurts his cause.

Brewer vetoes SB 1062

Timothy Kincaid

February 26th, 2014

Brewer’s remarks

Good evening, and thank you for joining me here today.

I am here to announce my decision on Senate Bill 1062.

As with every proposal that reaches my desk, I gave Senate Bill 1062 careful evaluation and deliberate consideration. I call them like I see them, despite the cheers or boos from the crowd.

I took the time necessary to make the RIGHT decision. I met or spoke with my attorneys, lawmakers and citizens supporting and opposing this legislation. I listened and asked questions. As Governor, I have protected religious freedoms when there is a specific and present concern that exists in OUR state. And I have the record to prove it. My agenda is to sign into law legislation that advances Arizona.

When I addressed the Legislature earlier this year, I made my priorities for this session abundantly clear… Among them are passing a responsible budget that continues Arizona’s economic Comeback.

From CEOs — to entrepreneurs — to business surveys — Arizona ranks as one the best states to grow or start a business. Additionally, our IMMEDIATE challenge is fixing a broken Child Protection system. Instead, this is the first policy bill to cross my desk.

Senate Bill 1062 does not address a specific and present concern related to religious liberty in Arizona. I have not heard of one example in Arizona where a business owner’s religious liberty has been violated. The bill is broadly worded and could result in unintended and negative consequences.

After weighing all of the arguments, I vetoed Senate Bill 1062 moments ago. To the supporters of the legislation, I want you to know that I understand that long-held norms about marriage and family are being challenged as never before.

Our society is undergoing many dramatic changes. However, I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve. It could divide Arizona in ways we cannot even imagine and no one would ever want.

Religious liberty is a core American and Arizona value, so is non-discrimination. Going forward, let’s turn the ugliness of the debate over Senate Bill 1062 into a renewed search for greater respect and understanding among ALL Arizonans and Americans. Thank you.

(text from Towelroad)

Note the careful way in which she discusses the challenges to long held norms about marriage and family and dramatic change without actually stating her opinions about such challenges and change.

Opposition to Arizona’s Right-To-Discriminate Bill Grows

Jim Burroway

February 26th, 2014

Arizona’s License-To-Discriminate law is still on Gov. Jan Brewer’s desk awaiting her decision. The expansive SB 1062, which would allow virtually anyone to discriminate against anyone else — and more — on the basis of religious belief, would effectively bring anarchy to the state of Arizona and its employers with non-hostile workplace policies. Which is why local Arizona business groups are lining up to urge Brewer to veto the bill:

The Greater Phoenix Economic Council and Arizona Technology Council are joining gay rights groups in opposition to Senate Bill 1062. Part of their worries are the measure will repeat the bad publicity and negative impact on tourism and business investment seen after Gov. Jan Brewer signed the SB 1070 immigration bill four years ago.

“This legislation has the potential of subjecting the Super Bowl, and major events surrounding it, to the threats of boycotts,” said GPEC chairman James Lundy and CEO Barry Broome in a letter to Brewer today. They also said four companies looking to bring jobs to Arizona might reverse course if Brewer signs the measure, which passed the Legislature this week. They did not identify the companies.

Businesses are looking to avoid repeating the SB 1070 debacle four years ago when Arizona lost millions of dollars in businesses and tax revenue due to the fallout. Other business groups opposing SB 1062 this time include the Arizona Chamber of Commerce, Greater Phoenix Chamber of Commerce, Greater Phoenix Leadership, the Arizona Hispanic Chamber of Commerce, the Greater Phoenix Economic Council, the Arizona Lodging & Tourism Association, Tucson Hispanic Chamber of Commerce, the outhern Arizona Leadership Council, and Visit Tucson, the city’s tourism board.

Individual businesses have also lined up to oppose the bill, including Apple, which is set to open a new sapphire glass plant in Mesa with 700 full-time jobs. Other Arizona employers opposing SB 1062 include PetSmart, Intel, Dignity Health, American Express, Mariott, American Airlines (which recently merged with Tempe-based USAirways) and Delta Airlines.

Local politicians are voicing their opposition. Tucson’s Mayor Jonathan Rothschild opposes the bill, as does Phoenix Mayor Greg Stanton, and Mesa Mayor Scott Smith. Surprisingly, I haven’t heard from Glendale Mayor Elaine Scott. That city risks losing the 2015 Super Bowl if SB 1062 makes it into law:

The NFL said it was monitoring the progress of the bill, the Cardinals said they are concerned about the negative image the bill could bring the state, and the Arizona Super Bowl Host Committee said it flatly opposes the legislation.

…n 1993, Arizona was in line to host the Super Bowl in Tempe, but Arizona voters in November 1992 voted against a referendum recognizing Martin Luther King Jr. Day as a state holiday, prompting the NFL to give the Super Bowl to Pasadena, CA.

Even Fox News, which has spent several months drumming up support for bills like Arizona’s SB 1062, has done an about face and now compares the bill to Jim Crow laws. Which has got to be very disorienting to Arizona politicians living in the Fox News bubble.  But at least it’s having its effect. Three Republican State Senators who had supported SB 1062 before they opposed it, are now urging Brewer to veto the bill.

Sens. Bob Worsley, Adam Driggs, and Steve Pierce delivered a letter to Brewer on Monday, saying, “While our sincere intent in voting for this bill was to create a shield for all citizens’ religious liberties, the bill has instead been mischaracterized by its opponents as a sword for religious intolerance. These allegations are causing our state immeasurable harm.”

The senators asked Brewer to veto the bill.

“We must send a clear message that Arizona is a state that values religious tolerance and protects and values each individual’s ability to follow the dictates of their own conscience,” they wrote.

Now they come to their senses. If they had voted against the bill in the first place, it would have failed in the Senate 14-16. Instead, it passed in a 17-13 vote.

Arizona’s two Republican U.S. Senators, John McCain and Jeff Flake also urge Brewer to veto SB 1062.

As for SB 1052 supporters, the include the bill’s primary cheerleader, the Center for Arizona Policy’s Cathi Herrod. CAP, by the way, is an official state policy council of Focus On the Family. And there’s this guy, State Sen. Al Melvin (R-SaddleBrooke/Tucson):

Which more or less means that any halfway sane governor would veto this bill before it even had a chance to settle on her desk. But since Brewer has until Friday to make up her mind, the rest of the country gets to see what we Zonies have to put up with every day.

Tucson Pizzeria Refuses Service to Arizona Lawmakers

Jim Burroway

February 21st, 2014

In the wake of Arizona’s legislators’ enacting a special-right-to-discriminate law for religious people, Tucson’s Rocco’s Little Chicago Pizza has posted a sign on its front door reading, “We reserve the right to refuse service to Arizona Legislators.” Rocco’s has received an outpouring of support on Facebook:

Hey, just want to say that all we want to do is cook you some dinner. Not trying to be anything but your neighborhood pizzeria. Thanks for the support!

Also, this:

Maine Says No To Discrimination, Arizona (Naturally) Says Yes

Jim Burroway

February 20th, 2014

In a mostly party-line 89-52 vote, the Maine House defeated a bill that would have created a special exemption for those who wish to claim a right to discrimination based on religious beliefs.

While the exemption was supposedly aimed at allowing discrimination against LGBT people and same-sex couples, the bill itself did not provide such narrow grounds for claiming an exemption. Instead, the bill sought to exempt anyone from anti-discrimination laws or any other law or regulation if it would “Constrain or inhibit conduct or expression mandated by a person’s sincerely held religious tenet or belief.” That would include any kind of act, whether its discrimination against a gay couple or an African-American family or a single woman. Two Democrats, Rep Stan Short (Pittsfield) and Steve Stanley (Medway) voted for the measure. Five Republicans — Reps. Michael G. Beaulieu (Auburn), Richards Campbell (Orrington), Aaron Libby (Waterboro), Sharri MacDonald (Old Orchard Beach), Joyce Maker (Calais) — voted to kill the bill.

While Maine’s lawmakers showed their sanity in turning down the bill, Arizona’s lawmakers are working diligently to preserve their state’s reputation for being among the most hostile and retrograde in the nation. House Bill 2153 would provide a similarly broad exemption for religious people by allowing them to “act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.” As Dan Savage describes it in a post titled “It Could Soon Be Legal For Satanists to Discriminate Against Christians in Arizona“:

That’s not the law’s intent, of course. Arizona’s proposed new law, like the ones in Kansas and Idaho, is about legalizing discrimination against gays and lesbians. But in an effort to hide the anti-gay prejudice behind their “religious liberty” bill, Arizona lawmakers have worded it so vaguely that it empowers anyone of any faith to discriminate against anyone for any reason—provided, of course, that the person doing the discriminating remembers to cite their sincerely held religious beliefs as a justification.

It also adds a new element of discrimination into the law: atheists would have no grounds to claim protection for refusing to serve gay people in a restaurant or rent to Latinos or hire Jews. This law and others like it carve out a special privilege available to religious people only.

An identical bill sailed through Arizona’s Senate last Wednesday in a 17-13 party-line vote. And true to form, the Arizona House passed the measure in another 33-27 vote. Republicans Rep. Kate Broohy McGee (Phoenix), Heather Carter (Cave Creek), and Ethan Orr (Tucson) voted no.  It will now land on Republican Gov. Jan Brewer’s desk by nightfall.

Mother Jones reports that these rash of bills are hitting state legislatures in rapid succession:

Republicans lawmakers and a network of conservative religious groups has been pushing similar bills in other states, essentially forging a national campaign that, critics say, would legalize discrimination on the basis of sexual orientation. Republicans in Idaho, Oregon, South Dakota, and Tennessee recently introduced provisions that mimic the Kansas legislation. And Arizona, Hawaii, Ohio, Oklahoma, and Mississippi have introduced broader “religious freedom” bills with a unique provision that would also allow people to deny services or employment to LGBT Americans, legal experts say.

The Arizona and Idaho bills were brought forward by state policy organizations associated with CitizenLink, a Focus On the Family affiliate. Others, like the Kansas bill, were crafted by the American Religious Freedom Program, which is part of the Ethics and Public Policy Center.

The sponsor of the Tennessee bill withdrew it yesterday, while lawmakers in Idaho, Kansas, South Dakota turned back measure in their states. This came on the same day that the Kansas Senate president announced that her chamber would not consider a discrimination exemption bill that had passed the House earlier. The Kansas version was perhaps the broadest bill of all, as it would have covered all government employees including first responders.

Kansas anti-gay bill killed

Timothy Kincaid

February 19th, 2014

Last week the Kansas House of Representatives passed a broad and sweeping bill to “protect the religious beliefs” of individuals and businesses who object to same sex marriage and who wish to discriminate against gay couples. In addition to providing that businesses need not provide the commercial trappings of marriage to gay couples, it also allowed individuals – whether in a private capacity or as an employee of a business or even a civil servant – the right to claim religious exemption from providing the services of their company or of the state. In a final ‘gotcha’, it excluded same sex couples from the right within the state to sue for discrimination.

The Kansas House, comprised mostly of Republicans, voted 72 to 49 for the bill. What happened next is interesting.

As could be expected, civil libertarians, civil rights activists, and supporters of gay equality all decried the bill. And legal scholars pointed out that after Romer v Evans, excluding a class of individuals from the right to legal recourse was on it’s face unconstitutional.

But, nevertheless, most pundits expected the Kansas Senate, also controlled by Republicans, to pull out a big rubber stamp and join in on the bacchanalia of bigotry.

Surprisingly, they did not.

It seems that the GOP Senators, unlike the GOP Representatives, took a look at their political alliances, their hope for a future reputation, and the implications of this bill on the Republican brand, saw this for what it was: an invitation to treat gay people cruely. And the bill now appears dead. (NY Times)

Susan Wagle, a conservative Republican who is president of the Kansas Senate, raised opposition to the House measure, saying she had “grown concerned about the practical impact of the bill” and “my members don’t condone discrimination.”

Ms. Wagle was backed by Senator Jeff King, the chairman of the Judiciary Committee, who said he would not hold hearings on the House bill.

But it was not merely Wagle’s conscience that led to the bill’s demise. It was also the objections of Business and Religion.

As written, the bill would put employers – especially small businesses – in an awkward and complicated and likely expensive position. Staffing would be based on the personal beliefs of employees rather than on the needs of the market and in a less-than-stellar economy this was a burden that could kill a company with only a few employees.

Opponents included the Kansas Chamber of Commerce, which said that the measure could lead to increased costs for businesses. The chamber took particular exception to a provision in the bill that said that if an employee of the government or “other nonreligious entity” objected to providing a service based on religious beliefs, the employer would have to find another employee to fill in or find some other way to provide the service.

Businesses were “not interested in getting into these guessing games as to someone’s intent and whether a strongly held religious belief is legitimate or not,” said Mike O’Neal, the president of the chamber.

And the claim about “protecting religious beliefs” was damaged by strong opposition to the bill by some religious groups. The Episcopal Church led the religious opposition in the strongest terms. (HuffPo)

For Episcopalians, our faith is unequivocal. Our Baptismal Covenant asks, “Will you seek and serve Christ in all persons, loving your neighbor as yourself? Will you strive for justice and peace among all people and respect the dignity of every human being?” Promising to strive for justice and peace among all people and to respect the dignity of every human being requires us to be adamantly opposed to legislation that does none of these things.

Our biblically based faith calls us to live out the command of Jesus Christ to love one another. You cannot love your fellow Kansans and deny them the rights that belong to everyone else.

And they were not alone. Less conservative churches are now increasingly speaking up to counter the message that faith is universally anti-gay. (UPI)

Many ministers in the state oppose the bill and say it has nothing to do with religious freedom. Kate McGee of Presbyterian Trinity Church in Topeka, Aaron Roberts of Colonial Church in Prairie Village and Chad Herring of John Knox Kirk in Kansas City, Mo., joined forces Friday to lobby against it.

McGee said religious beliefs should not be codified in Kansas law.

“If businesses rejected sinners, they would have no customers,” McGee said. “They themselves wouldn’t be able to shop in their own businesses. Where does it stop?”

Some form of bill may yet arise in the Kansas Senate. Sen. King has said that while no substitute bill is in the wings, he’ll hold hearings to see if any additional protections are needed. But it is a sign of our eminent equality that Business, Religion, and the GOP Senate aligned to kill this anti-gay bill.

Ninth Circuit: gays deserve heightened scrutiny

Timothy Kincaid

January 21st, 2014

In 2011, GlaxoSmithKline sued Abbott Laboratories over the pricing of an HIV drug. Glaxo received a mixed win, but was not awarded the funds they felt they deserved and argued that the process was unfair, specifically the way in which the jury was selected.

Abbott’s attorneys had excluded a potential juror because he was gay and they believed that he would be biased against their drug pricing practices.

It has long been impermissible to exclude juror based on race or on sex. But the question had not been answered as to whether a person’s sexual orientation could be a reason for exclusion.

Now the Ninth Circuit has weighed in and, not surprisingly, the answer is no. You cannot purposefully select an all-straight jury (or, for that matter an all gay one).

But while it’s nice to find that I can’t be discriminated against in jury selection (though I’m tempted to wish otherwise) the reason for the ruling is the big story here. (Buzzfeed)

The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.

In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies.

Writing for the three-judge panel, Reinhardt wrote:

Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.

When a court reviews a discrimination case, it has different levels of “scrutiny” with which it examines a potentially discriminatory situation.

The weakest, “rational basis”, requires that the state be attempting to bring about a legitimate governmental purpose and that the law be rationally related to that goal. For example, a state might restrict driving in a carpool lane to vehicles with a minimum number of passengers. And while single people might feel this disadvantages them, because the state seeks to reduce vehicle emissions (a legitimate purpose) and because encouraging carpooling is rationally related to that goal, there is no civil rights issue. Under this basis the state generally has the presumption of legitimacy.

The strongest, “strict scrutiny”, requires a compelling governmental interest to which the policy is narrowly tailored and is the least restrictive way to achieve that goal. This category comes into play when a targeted group has a history of discrimination, an immutable characteristic, and is politically powerless to bring about change on its own, such as a group defined by race.

Strict scrutiny is a much higher standard and much more difficult to pass. Under this basis, the presumption is on the side of the group subjected to discrimination. For example, if a state were to pass a law restricting a carpool lane on the basis of race, it would be assumed to be unconstitutional out of the gate.

In between is “intermediate scrutiny”, in which a law must be for an important governmental interest and substantially related to that interest. Sex and illegitimacy issues fall into this category.

Another possible category appears to be “heightened scrutiny”, which is not yet well defined. It may be the same as intermediate scrutiny, and has been used in legal circles interchangeably, but that is not yet clearly established. But if it is not the same, it’s quite similar. It is in this category that the Ninth Circuit has found sexual orientation.

What all this means in practical terms is that – unless the Supreme Court reverses this decision – at least in the Ninth Circuit, laws that distinguish on the basis of sexual orientation will likely be overturned.

We have won a number of issues on the lowest, rational basis scrutiny, and if a state must now prove that their anti-gay discrimination is substantially related to an important governmental interest, then we have an even better chance of winning.

The Legal Discrimination Against Gay Couples bill

Timothy Kincaid

September 19th, 2013

About 60 US Representatives (they claim bi-partisan) have signed onto a new bill they are calling the Marriage and Religious Freedom Act, which is being described as a bill to protect churches and religious organizations from being targeted by the IRS for punishment over their pro-traditional marriage position. I’ve yet to locate a copy of the bill, but sponsor Raul Labrador (R-ID) summarizes it this way:

The Marriage and Religious Freedom Act would prohibit government discrimination against individuals and institutions that exercise religious or moral conscience regarding marriage as the union of one man and one woman by ensuring that the federal government will not:

· Deny or revoke an exemption from taxation under Sec. 501 of the IRS Tax Code

· Disallow a deduction for Federal tax purposes of any charitable contribution made to or by a person

· Deny or withhold any federal benefit

· Deny or exclude a person from receiving any federal grant, contract, loan, license, certification, accreditation, employment, or other similar position or status

· Otherwise discriminate against any individual organization

I have no problem with the first two bullet points. I don’t know what is meant by the third and find the fifth vague. But the third bullet point it the heart of this bill, the true purpose, and the means by which these legislators are seeking to engage in egregious and un-American behavior.

“Deny or exclude a person from receiving any federal grant, contract, loan, license, certification, accreditation, employment, or other similar position or status”

What this says is that if a solar panel installer seeks a contract from the federal government, the government must allow that contractor to refuse to provide the federal benefit to a gay homeowner. It says that a military contractor spending millions of taxpayer dollars must be allowed to discriminate in hiring against an applicant because his spouse is male. It says that the filing clerk at the social security administration can refuse to process the paperwork of a gay couple. It says that the IRS auditor can pretend that the married filing jointly return in front of her can pretend that it is filed fraudulently. It says that the customs official at the airport can unilaterally decide that your spouse isn’t really your spouse. It says that you can be turned down for student loans, for a camping permit in a national forest, for a White House visit, for any federally related benefit by any person at any level who decides that their religion requires them to discriminate against you.

There is no way that conservative Christians would EVER apply such a bill to themselves. Which gives me my response to Labrador:

I’ll make you a deal. You can pass a bill making sure that people can refuse service based on sexual orientation and marital status if you ALSO pass a bill making sure that people can refuse service based on religious affiliation.

That way Southern Baptist florists can refuse service to gay couples, and gay florists can refuse service to Southern Baptists. And one county clerk can refuse to issue a marriage licenses to gay couples while another can refuse to issue marriage licenses to Catholics and a third can refuse service to anyone with any faith at all.

That way everyone’s religious beliefs are protected, not just the anti-gay conservative Christian religious beliefs.

A lesson in wedding photography

Timothy Kincaid

February 17th, 2013

Sometimes discrimination doesn’t come from a place of hate. Sometimes it just comes from a place of fear or confusion, an automatic reaction based on the established prejudice of the dominant culture. This weekend, we had an illustration of just such an event.

Photographer Anne Almasy decided it was time to take out her first advertisement, and she chose Weddings Unveiled as the magazine she felt best suited to reach potential clients. And although Anne has take pictures from many different weddings, big and small, she decided to stand out and be unique. She chose a picture from a same-sex wedding in which the brides were in a warehouse sitting on bags of coffee beans. She says it represents love, home, and joy, but I think it also is creative, interesting, and outside the box.

The response was not positive. The editor called her and said,

Is there possibly another photograph you’d like to use in your ad? We just don’t feel comfortable publishing an ad featuring a same-sex couple. These aren’t our personal beliefs, of course, but, you know…

Over the weekend, the magazine heard from a few folks who were not particularly pleased by that decision. And today they have a new perspective.

Honestly, we knew that everyone would not share our belief that all people have the right to marry. The issue is very sensitive and it is also very divided. We knew that it was possible that people would be offended if we published the ad and we knew that it was possible that people would be offended if we did not. We are so sorry that we acted out of fear and uncertainty. We had never been faced with such a decision and we should have acted with our hearts.

Yes, they should have. They made a hasty, fearful, and stupid decision. And now they are apologizing in a way that appears to me to be sincere.

I hope we are all able to see this as a learning situation, a reminder to our friends that friendship requires more than just “supporting” our community in theory or words, and a reminder to our community that sometimes people make mistakes but can grow if we let them.

Repeal of DADT actually HAS resulted in restrictions on a chaplain’s religious freedom

Timothy Kincaid

July 30th, 2012

Those who opposed the repeal of Don’t Ask – Don’t Tell, the anti-gay military policy, warned that lifting the ban on openly gay servicemembers would result in chaplains having to choose between their denomination and The Homosexual Agenda! They predicted that chaplains would be forced into positions in which the orders of their superiors would contradict the mandates of their faith.

And they were right.

On June 23rd, Tech. Sgt. Erwynn Umali and Will Behrens stood before God and Country and pledged to love each other and trust in each other and in God. Kay Reeb, a Navy chaplain with the Evangelical Lutheran Church in America, presided. Joyously. And as the ELCA supports same sex couples, Reeb did so with no conflict whatsoever.

But, as it turns out, Reeb was not the only chaplain present. Air Force Col. Timothy Wagoner, a Southern Baptist, is the presiding chaplain at that chapel, and he was there as well. (Army Times)

“I wouldn’t miss it,” Wagoner said at the chapel at Joint Base McGuire-Dix-Lakehurst, days later. “I don’t feel I’m compromising my beliefs … I’m supporting the community.”

Even though he was not willing to conduct the union, he could be there as a sign of support for all of the service members, including Umali (“a comrade in arms”) and Reeb (“she gave a beautiful ceremony”). The article that quoted Wagoner went on to say that the lifting of the ban was a non-issue.

In fact, there’s been no significant exodus — perhaps two or three departures of active-duty chaplains linked to the repeal. Moreover, chaplains or their civilian coordinators from a range of conservative faiths told The Associated Press they knew of virtually no serious problems thus far involving infringement of chaplains’ religious freedom or rights of conscience.

It seems that, unlike their civilian counterparts, chaplains are quite willing to respect each others’ views and to support their service even if their theology differs.

Well that just wouldn’t do. If chaplains are not feeling infringement then they certainly were going to. So the North American Mission Board (the branch of the Southern Baptists that oversees SBC chaplains) called in Col. Wagoner to explain himself. (Baptist Press)

Wagoner assured the SBC that he does not support same-sex marriage or unions. Nor have his theological views changed from the teachings of his denomination. But that just wasn’t good enough.

Carver said, “Our expectations are that military chaplains will continue to uphold the Baptist Faith and Message 2000, which makes it crystal-clear that marriage is the uniting of one man and one woman.”

After the AP article appeared, Carver said NAMB’s chaplaincy office immediately emailed a letter to all its chaplains, reinforcing the Southern Baptist position on same-sex civil unions. A videoconference session for all senior SBC military chaplains also is planned to emphasize NAMB’s expectations for ministry to members of the armed forces.

There won’t be any of this “getting along with others” crap. We have conflict to uphold. We have discord to sow. We have the infringement of religious liberties to fabricate.

“Our chaplains need the assurance of our prayerful support as they fight the good fight of faith with the uncompromising truthfulness and love of Jesus Christ,” Carver said. “We’re going to protect our chaplains and, as they take their stand, they need to remember they’re not alone. We are here to love, defend and support them.”

Kinda like they loved, defended and supported Col. Wagoner.

But I’m happy to report that Col. Wagoner has withstood the pressures placed on him by the lifting of Don’t Ask – Don’t Tell. He faced an infringement on his religious freedom but his faith was strong enough to weather the pressure of the post-DADT military and come out victorious. Col. Wagoner looked religious oppression in the face and fought back. (Christian Post)

Col. Timothy Wagoner, who serves at an Air Force base in New Jersey, left the Southern Baptist Convention and joined the more progressive Cooperative Baptist Fellowship. The long-time chaplain confirmed his switch to The Associated Press on Friday.

“I find very little that is more important and nothing that is more exhilarating than providing for the religious freedoms and spiritual care of all service members and their families – and will joyfully continue to do so,” Wagoner, senior chaplain at Joint Base McGuire-Dix-Lakehurst, said to AP.

Yes, indeed. The lifting of Don’t Ask – Don’t Tell certainly has resulted in restrictions on a chaplain’s religious freedom. By the Southern Baptist Convention. But happily, he rose above.

Catholic diocese: Pedophile Mansion must be protected from gay marriage

Timothy Kincaid

July 30th, 2012

At some point in the last century, the Catholic Church came up with an idea: since priests are scarce, rather than toss out those who molest children, why not refurbish them (and their reputation) instead and send them to a new place where no one knew about their pedophile tendencies. And if a few more kids get raped (or a few hundred thousand), well at least they didn’t lose any priests.

Towards that effort, in 1973 Worcester, MA, priest Rev. Thomas A. Kane opened House of Affirmation at Oakhurst, a beautiful old mansion. As he had already been molesting a boy for five years, Kane was an ideal choice to head up the treatment of pedophile priests. And it gave Kane a convenient place to rape the kid and share him with other priests. Win-win (except, of course, for his victim).

But unfortunately for the diocese, Kane also committed a sin which the Church takes far more seriously and for which reconciliation is not offered: he engaged in financial improprieties with the Church’s money. And so, in 1990, Pedophile Mansion was closed and the Church (without the slightest hint of irony) reassigned the space to the Office for Youth Ministry.

Well now the Church has a need to get some ready cash; those busy-body courts keep awarding the victims of the pedophile priests with settlements. And there are only so many nunneries to empty or social services they can cut so now they have to look at the disagreeable task of selling mansions. And beautiful old Pedophile Mansion was put on the market.

James Fairbanks and Alain Beret were interested. The two had refurbished rundown grand spaces before and wanted to turn the mansion into a beautiful banquet facility. And as they had the support of various planning committees – who were delighted that the building would be restored rather than razed – they put in an offer and a $75,000 deposit.

But then there was a hickup. It was determined that a $240,000 sprinkler system would need to be installed.

And at that point, the Church decided to pull a fast one. Rather than renegotiate revisions to the standing contract, the Church’s broker suggested a new offer – one for only a portion of the 24 acres. And when Fairbanks and Beret retracted their previous offer and submitted the suggested smaller bid, the Church declined the offer, thus leaving them without a legal contract.

They had decided to pursue “other plans” for the property.

But as their intent had been to raise funds and divest the diocese of the costly overhead of maintaining the building, it seemed odd that the Church would make this move. Why could it be?

The “why” of their decision is shocking, but not surprising. At some point in the process the Church discovered that Fairbanks and Beret are not only gay but a legally married couple. And Worcester diocese of the Roman Catholic Church did not want to sell property to a gay couple.

Now it may seem extreme to speculate on something like that. And, of course, the church gave entirely different reasons. (Worcester Telegram)

This week, Monsignor Thomas Sullivan, who oversees the sale of diocesan property, told me the deal fell through because of financing.

“They couldn’t come up with the money,” he said. “This happens all the time.”

I told him the potential buyers believed that he rejected the deal because of their sexual orientation, or the prospect of gay marriages someday being performed at Oakhurst. Was that an issue?

“No, it wasn’t,” Msgr. Sullivan said. “It was an issue of them not having the financing. That was all.”

But, as it turns out, it’s really not a matter of guesswork or differing perspectives. The Church was kind enough to put in words exactly the reasons for their chicanery and bigotry and their agent was stupid enough to include it in an email chain to Beret. And – as seems to be the chief role of Catholic hierarchy – Monsignor Sullivan was lying:

I just went down the hall and discussed it with the bishop. Because of the potentiality of gay marriages there, something you shared with us yesterday, we are not interested in going forward with these buyers. I think they’re shaky anyway. So, just tell them that we will not accept their revised plan and the Diocese is making new plans for the property. You find the language.

No no no no no no no. Not gay marriage. Pedophile Mansion is perfectly fine for molesting children in, but not gay marriage.

Of course, no matter who owned the building, if it was refurbished to be a banquet facility then it could not deny gay couples the same wedding services it offered to opposite-sex couples. But amongst anti-gays these days, the existence of a gay person raises the immediate threat of a gay marriage and then their brain shuts down (… click). There is exactly zero chance that the Church had any reason for denying the sale other than that the purchasers were gay (GAY? But Gay Marriage!!!… click)

The diocese is soon going to discover something fascinating. It’s illegal in the state of Massachusetts to discriminate in the conduct of business. You can’t refuse to sell to customers simply because they happen to be gay. You can’t even refuse to sell to customers because you fear that the gay customers might use what you’re selling in some way that involves gay marriage (…click). And if you are so amazingly stupid as to document your bigotry and then lie to a reporter about it… well, it’s not going to go over well either in the news or in a courtroom.

Big Centralized Government is a Michigan Republican Value

Timothy Kincaid

December 27th, 2011

The Michigan Republican Party claims the usual litany of principles that most state Republican Party organizations claim. Their listing of beliefs speak a great deal about equality and nearly every point uses the word “individual”. The two beliefs that stand out as defining characteristics of Republicans, those that really differentiate from Democrats, are probably the following:

I BELIEVE the proper role of government is to provide for the people only those critical functions that cannot be performed by individuals or private organizations, and that the best government is that which governs least.

I BELIEVE the most effective, responsible and responsive government is government closest to the people.

Reading the full eight statements of belief, one might believe that Michigan Republicans believe in small government, individual self-determination, and equality under the law. Nothing could be further from the truth.

In reality, Michigan Republicans believe in utilization of state power to coerce compliance by counties and local governments, dictated values, and a class system based on religious dogma. And nothing illustrates that truth more effectively than House Bills 4770 and 4771.

The synopsis of HB 4770 pretty much says everything that needs to be known about its intent or the mentality of those who passed it:

A bill to prohibit public employers from providing certain benefits to public employees.

This bill prohibits local governmental employers – county, state, fire departments, etc. – from providing local governmental employees – librarians, firemen, teachers, lifeguards, etc. – with benefits under certain conditions. It removes from the ‘government closest to the people’ the ability to make decisions that reflect the values and needs of the people and puts the state in the position of dictating the terms and conditions of local employment contracts.

Specifically, the Public Employee Domestic Partner Benefit Restriction Act (yes, this really is it’s name), dictates that “a public employer shall not provide medical benefits or other fringe benefits for an individual currently
residing in the same residence as an employee of the public employer” unless they are an opposite-sex spouse or a dependent (or an intestate successor). Those gay employees of villages or towns who receive the same compensation package as their heterosexual office-mates will now be stripped of a portion of their pay.

The sole purpose is to impose the beliefs of the state legislators onto those municipalities that do not share their beliefs. Unable to convince local communities to engage in anti-gay discrimination, Republican legislators will now use the power of the state to force them to do so.

Companion bill HB 4771 adds the following language into the collective bargaining law: “(11) Health insurance or other fringe benefits for any coresident of an employee of a public employer on terms that conflict with the Public Employee Domestic Partner Benefit Restriction Act.”

I will give them this much: they are not pretending that this bill is anything other than what it is. As the bill puts it, “that group of employees” is it’s target. And while the bill would strip unmarried heterosexual couples eligible for domestic partner benefits (should any municipality provide such coverage), there’s no pretense that this is not a blatant attempt to strip gay people of equal pay.

Earlier this month, the Republican majorities in the House and Senate passed HB 4770 and 4771 on a party line vote (with the support of one Democrat) and on Thursday, Governor Rick Snyder (R) signed the bills into law.

[L]ead sponsor Rep. David Agema, R-Grandville, praised the governor’s decision, saying, “Time and again, Michigan residents have said ‘no’ to paying for the health benefits of the roommates and unmarried partners of public employees, and the governor’s signature today gives the people’s voice the rule of law.”

I don’t know of any municipalities that provide domestic partnership benefits to roommates and I don’t think Agema does either. Rather, I suspect that is just his way of demeaning gay people by pretending to think that long-term committed same-sex relationship are just “roommates”. Having imposed his religious views on those who do have different beliefs, he now is blaring his contempt for you.

And Agema is quite clear that it is truly his intention to impose his religion on the land, regardless of the beliefs or desires of others. Describing himself as a servant of “God, family, and country” (in that order) Agema runs Saboath House Ministries, a dominionist organization.

In today’s language, Sabaoth means “Taking Back God’s Property”. That is what Sabaoth Ministries is all about…going into the city and taking back God’s property.

Looking back over the past few years, it is clear that Michigan Republicans have become increasingly known for their anti-gay activism (and bizarre antics). Which is fine, I suppose. If the Michigan Republican Party truly wishes to be the political vehicle for extremist dominionists who seek to impose a talibanish form of theocracy, then they should have the right to present those views. If they want to be the party of strong centralized government and dictated social policy, that’s their right.

But I do object to them claiming to be the opposite. It’s time they give up the pretense of favoring the rights of the individual or the principle of smaller, local, less intrusive government.

A bus, a kiss, and an all too familiar scenario

Timothy Kincaid

November 3rd, 2011

Sometimes you read a story that sounds familiar. Not the names necessarily, but the context, the attitudes, the social atmosphere.

Christopher Buchanan, 22, and his boyfriend Derrell Hughes boarded a 146 southbound bus in Lakeview on Oct. 22, after leaving an afternoon program at the Broadway Youth Center, Buchanan said.

“I was holding his hand and kissing and whatnot,” Buchanan told Windy City Times.

As the bus approached downtown, he said, a middle-aged White woman approached the bus driver to complain about the two.

The driver allegedly got up and told Buchanan and Hughes that someone had complained about them and that they needed to get off his bus.

“He was really in my face,” said Buchanan. “He said ‘you bitches need to get off the bus…I can’t stand fags.'”

I don’t know what whatnot the two were up to. But I know this, if the driver’s objection was based on Christoper and Derrell being “bitches” and “fags”, then a simple apology is not enough.

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