Box Turtle Bulletin

ENDA Is Toast

There’s really no other way to describe the current state of the Employment Non-Discrimination Act. Not that it was ever going to go anywhere in this Congress where the Republican Caucus in the GOP-led House had less than a zero percent chance of bringing it up for a vote after the Senate gave its rare bipartisan approval last November.

But ENDA has gotten even toastier lately, particularly after last month’s Supreme Court decision in the Hobby Lobby case. That decision, which was a statutory one rather than a question of constitutionality, held that privately or closely-held for-profit corporations could opt out of providing birth control as part of its health care plan under the Affordability Care Act (ACA) if doing so would violate their religious beliefs. While the majority opinion said that their opinion applied only to birth control and nothing else, it failed to provide a coherent “stopping principle” to show exactly which legal precepts would limit the decision to birth control in the future. Most tellingly, Justice Samuel Alito, writing for the majority, did provide an example of how race protections would remain in force, but declined to show how any anti-discrimination protections based on sexual orientation or gender identity would survive.

The fact that the Hobby Lobby decision was a statutory rather than a constitutional one is critical. Hobby Lobby argued that there was a conflict between the ACA and the Religious Freedom Restoration Act (RFRA). In hindsight, if the ACA had included a specific clause exempting it from the RFRA, there would not have been a case to take before the Supreme Court. But without such a clause, Hobby Lobby saw an opportunity.

So here’s the problem for ENDA. When the Supreme Court looks at conflicts between legislation brought by Congress, it looks at other laws to see how Congress viewed that legislation. In the Hobby Lobby case, the Supreme Court looked at how Congress treated other abortion and birth control measures, some of which included religious exemptions, and concluded that Congress had effectively expanded the RFRA to cover the ACA even though the ACA itself had no specific religious exemption.

ENDA, in its current form, would make the situation much worse than what happened to the ACA. In order to get jittery representatives to sign on to ENDA, supporters included a religious-exemption clause in Section 6:

SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

(a) In General.–This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)) (referred to in this section as a “religious employer”).

(b) Prohibition on Certain Government Actions.–A religious employer’s exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer’s participation in programs or activities sponsored by that Federal, State, or local agency. Nothing in this subsection shall be construed to invalidate any other Federal, State, or local law (including a regulation) that otherwise applies to a religious employer exempt under this section.

Because ENDA contains an explicit LGBT-only religious exemption, the Supreme Court could, in following the Hobby Lobby precedent, look at that exemption in ENDA and conclude that Congress had effectively expanded the RFRA to cover a whole host of LGBT-rights regulations that have come about since the demise of Section 3 of the Defense of Marriage Act, including health care, hospital visitations, spousal benefits, and so forth. The possibilities for unintended consequences are enormous.

Arizona’s so-called “religious freedom” bill that Gov. Jan Brewer (R) vetoed last February focused attention on religious exemptions generally, including those in ENDA. But it wasn’t until the Supreme Court’s method for interpreting the RFRA in the Hobby Lobby case showed the unintended consequences of religious exemption clauses in unrelated legislation that LGBT organizations which had previously supported ENDA have now taken a second look.  Just yesterday, American Civil Liberties Union, Gay & Lesbian Advocates & Defenders (GLAD), Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center, have issued a joint statement announcing they were withdrawing their support for ENDA. The National Gay and Lesbian Task Force withdrew its support in a separate statement.

Their worry is not so much over ENDA itself — it was never  going to go anywhere in the House — but over a forthcoming executive order from President Obama that would extend anti-discrimination protections for sexual orientation and gender identity expression to federal contractors. The concern here is that the Obama administration may lift the language of the religious exemption clause from ENDA and graft it into his executive order, and thereby effectively eviscerate the order’s effectiveness for large numbers of LGBT people.

What Does the Hobby Lobby Decision Mean For LGBT People?

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.

One third of gay employees have access to partner benefits

NYTimes

In the first comprehensive count of domestic partner benefits by a federal government agency, the Bureau of Labor Statistics found that about one-third of all workers had access to health care benefits for same-sex partners.

Bureau officials added two questions about domestic partner benefits for same-sex couples to the National Compensation Survey, a sample of 17,000 businesses and local governments, as a response to growing public interest in the topic, said Philip Doyle, assistant commissioner at the agency. The results were made public on Tuesday.

This report is based on data from March 2011 and would not include recent changes made to couple recognition which were not enacted at that time: marriage in New York and civil unions in Illinois, Hawaii, Delaware, and Rhode Island.

Additionally, as companies recognize the same-sex spouse of a New York employee, many will be inspired at that time to adopt partner benefit programs for employees in states that do not have a vehicle for partner recognition. Otherwise, for example, Dunder Mifflin may find that the morale in its Scranton branch suffers.

WSJ: Should Employers Out Themselves To Job Applicants

The economy is in the dumps, but job losses have slowed significantly, and the recent jobs report indicates a very modest increase in hiring. But there are still a lot of unemployed workers chasing too few jobs. The Wall Street Journal poses a question worth discussing: Should Gay Owners Out Themselves? My immediate answer was absolutely not; just as it’s none of the employer’s business to ask the applicant’s sexual orientation, the same principle should apply in reverse. This seemed like a no-brainer to me, but some gay employers have found some gray area in that thinking.

More Discrimination Alledged Against Tennessee Hotel Owner

Remember the Brentwood, Tennessee, hotel owner who fired two employees because they were gay? Well since those stories came to light, more employees have come forward alleging discrimination based on gender and national origin, in addition to sexual orientation:

We were spoken down to,” former food and beverage manager Freda McAllister said. I guess in [the owner’s] particular culture, women are second, so that was obvious from the treatment we got over there.”

“[We were told] we ‘didn’t know how to run businesses,’ and we should do things more like they do in India,” added Tamara Head, former controller.

Former front office manager Timothy Horne said that he was treated badly partly because of his young age and also because he was gay, a charge echoed by former hotel supervisor Sergeo Lleneza.

Federal law protects workers from discrimination based on race, religion, gender, national origin and disability. It does not protect against discrimination based on sexual orientation. While David Hill, one of the two gay employees who were fired, has filed complaints with the EEOC and the Department of Labor, those complaints aren’t likely to go anywhere.

But there does seem to be a modicum of justice in all this. Hotel owner Tarun Surti and his hotel are reportedly bankrupt.

Second Gay Employee Fired From Tennessee Hotel

There’s a follow-up to the story of David Hill’s firing from the Artee Hotel in Brentwood, Tennessee. The hotel’s owner, Tarun Surti, had Hill fired when he found out Hill was gay. The Assistant General Manager, Leonard Stoddard, did the firing as ordered by Surti, and explained what happened to the local media. In the process, we learned that Stoddard was also gay, and that he expected to be fired as well.

Today we learn that other shoe dropped. Stoddard was terminated via email on Thursday. Surti wrote that Stoddard was fired because he alledgedly lied to the media about Hill’s termination. Stoddard and Hill plan on picketing outside the hotel on Saturday, January 17 at 9:00 a.m.

Tennessee Hotel Employee Fired For Being Gay

They say this sort of thing never happens, but here it is. David Hill says he was fired from the Artee Hotel (a former Holiday Inn) in Brentwood, Tennessee, simply for being gay. Not only that, but the owner who fired him dared him to sue:

“They literally said to me because of my orientation and my alternative lifestyle, that I was not a fit for the hotel,” said Hill.

Hill said he used to be the human resources director and is shocked at the owner’s decision to dismiss him because of his sexual preference. “The owner (Tarun Surti) said, ‘I don’t give a damn. They can sue me. I will not have any of the gays in leadership roles in my hotel.’ And that’s a quote,” said Hill.

Assistant general manager, Leonard Stoddard, confirmed Hill’s allegation. He should know, because he said he was the one who had to fire Hill. He spoke with Nashville’s Channel 4 News:

“The owner, Mr. Surti, comes from a culture that is not very tolerant to the gay lifestyle, and therefore he felt it necessary to have him removed from the workforce at the property,” said Stoddard.

“(He was fired) strictly because of his sexual orientation?” asked reporter Katina Rankin.

“I do believe that’s a very fair assumption,” asked [sic] Stoddard.

“Did you agree with his decision?” asked Rankin.

“I did not,” said Stoddard. “It is in our employee handbook that no one should be discriminated against, harassed verbally, physically or any other means for their sexuality, their sexual orientation, gender, race or anything of that sort.”

Meanwhile, it appears the firings didn’t start with Hill, and may not end with him:

Stoddard said Hill’s termination came after Surti received a letter which listed the names of several gay staff members including Hill and Stoddard. That letter was written by a former employee who had been fired for, among other reasons, being gay, Stoddard said.

…Stoddard said Surti fired Hill and told Stoddard he would soon need to find a new employer, as well. Stoddard has worked at the hotel for 10 months. He has not been officially terminated yet, but expects to be soon.

Which may explain why Stoddard spoke so freely with Channel 4.

Surti wouldn’t comment to Channel 4, but according to Out & About, Surti blamed the firings on staff cutbacks.

Hill plans to file a complaint with the U.S. Equal Employment Opportunity Commission and the Department of Labor, bt it’s not clear how far that will go. While U.S. law does protect against employment discrimination on the basis of religion, race, and ethnicity, and disability, it doesn’t cover sexual orientation.

Barney Frank on Rick Warren, Obama, and the “Gay Agenda”

Jeffrey Toobin has a great profile of Rep. Barney Frank (D-MA) in the latest New Yorker. First thing that pops out is that Frank intends to be much more aggressive than Obama:

Frank’s mordant view of human nature presents a contrast to the sunnier approach of President-elect Obama, a difference reflected in their dispute over Obama’s choice to have Rick Warren, the evangelical pastor, give the invocation at the Inauguration. “Obama tends to overstate his ability to get people to change their opinions and underestimates the importance of confronting ideological differences,” Frank told me. “It’s one thing to talk to somebody. I talk to more conservatives than anyone, because I’m trying to get legislation passed. But it’s another to make Rick Warren the most honored clergyman in the world.” In California, Warren supported Proposition 8, the successful anti-gay-marriage referendum. “Now, when we fight Warren in California, we are going to hear, ‘Oh, yeah, but Obama picked him for the inaugural.’ He doesn’t deserve that honor. And I don’t want to hear that the other clergyman at the inaugural, Reverend [Joseph] Lowery, supports gay rights. I didn’t vote for a tie in the election.”

Frank worries that Obama’s evenhandedness may prove to be a political liability.

I think we all can relate to that worry. Frank, on the other hand, won’t let that get in the way of what he thinks needs to be done for the economy (he’s chairman of the powerful Committee on Financial Services) and for LGBT rights:

Frank is uncharacteristically hopeful about the future, including gay rights. “We’re going to do three things in Congress,” he told me. “First, a hate-crimes bill—that shouldn’t be too hard. Next, employment discrimination. We almost got that through before, but now we can win even if we add transgender protections, which we are going to do. And finally, after the troops get home from Iraq, gays in the military. The time has come.” [Emphasis mine]

That last point is key. If we’re going to wait until after the troops get home from Iraq, then repealing “Don’t Ask, Don’t Tell” probably won’t happen for a very long time. But his response to those who claim that this represents some sort of radical agenda was pretty good:

“I do not think that any self-respecting radical in history would have considered advocating people’s rights to get married, join the Army, and earn a living as a terribly inspiring revolutionary platform.”

GLAAD Harris Interactive Survey: More Public Support

GLAAD has released a new survey by Harris Interactive that shows increased support for a number of the gay community’s goals:

• 49% of adults favor marriage equality; 49% oppose when presented with an up or down decision.
• When given options, 38% favor marriage; 38% favor civil unions while disallowing marriage; and 22% wish for no legal recognition at all.
• 69% oppose adoption discrimination.
• 64% favor overturning DADT.
• 63% favor trans-inclusive Hate Crimes Legislation
• 51% support trans-inclusive ENDA, 45% do not. They didn’t inquire about non-discrimination laws that did not include transgender persons.
• 47% support immigration rights; 48% do not. This one surprises me and may be a result of the phrasing of the question: Do you favor or oppose… allowing gay Americans to sponsor their non-American life partners to become residents of the United States.

One thing that I found fascinating is that issues of homosexuality are sharply dividing Mainline Christians from Evangelical Christians. In all questions, Mainline Christians were gay-favorable and Evangelicals were among the least favorable.

This was particularly evident on issues that were in traditional areas of Christian activism (pre-Religious Right). For example, on the ENDA question, Mainline was the most supportive of all demographics while Evangelical was the least.

As the issues surrounding sexual orientation become more instilled in the war over religious dominance in the culture, a possible positive side effect could be that the non-religious come to see this as a sectarian battle and opt out of anti-gay efforts.

Jindal to Relegalize Anti-Gay Discrimination

If you are a Louisiana State department head that wished to rid your taxpayer funded office of gay people, you only have to wait until after Friday. That’s when an anti-discrimination order put in place by former Governor Kathleen Blanco expires. And current Governor Piyush “Bobby” Jindal has no intention of renewing it. (Forbes)

The order – enacted by Blanco on Dec. 6, 2004 – bars state agencies and contractors from various sorts of harassment and discrimination by race, religion, gender, sexual orientation, national origin, political affiliation or disabilities.

Jindal says that he only wants to protect from discrimination those categories that are protected by Federal or state law. And neither federal nor Louisiana state law protect gay persons from blatant intentional discrimination.

Jindal has a reason for making sure that anti-gay discrimination is perfectly legal in Louisiana. It could cause problems with faith-based organizations’ ability to contract with the state. If anti-discrimination policies are in place then Jindal cannot give taxpayer money to religious groups who practice such discrimination in their state funded activities.

“We’re not going to renew it. That shouldn’t come as a surprise,” he said when questioned about the order’s expiration. “We oppose discrimination. I think we’ve got strong federal and state laws that protect our people.” [emphasis mine]

Jindal is believed to be on John McCain’s short list of potential running mates.

Investigation into Fired Justice Department Employee

NPR raised questions recently about whether Assistant U.S. Attorney Leslie A. Hagen was fired due to a rumor that she was a lesbian. Now it appears that an investigation has been opened.

When NPR first reported Hagen’s case earlier this month, Sen. Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA) asked the Inspector General’s Office and the Office of Professional Responsibility to confirm that they were looking into Hagen’s case.

Leahy and Specter — the top Democrat and Republican on the Senate Judiciary Committee — received their response Monday night.

In a letter dated April 14, Glenn Fine of the Inspector General’s Office and H. Marshall Jarrett of the Office of Professional Responsibility said they are looking into whether Hagen was “discriminated against in employment decisions on the basis of alleged sexual orientation or other improper factors.”

The Washington Blade questioned Elaine Kaplan, who served as head of the U.S. Office of Special Counsel during the Clinton administration. Kaplan explained that while Clinton’s executive order – which still stands – prohibited sexual orientation discrimination, the current head of the Office of Special Counsel, Scott Bloch, has created a definition that is essentially toothless.

It’s unlikely that the Office of Special Counsel would take action in the Hagen case because it involves alleged discrimination based on her sexual orientation, not a specific “homosexual act,” Kaplan said.

But somehow I suspect that neither Leahy or Specter will accept duplicitous responses to their inquiries. Specter, in particular, can get quite cranky if he feels that some bureaucrat is not adequately addressing his committee’s concerns.

Did the Justice Department Fire Prosecutor Because She Is a Lesbian?

The Justice Department under former Attorney General Alberto Gonzales operated in such a manner as to invite questions about its hiring and firing policies. While to date such questions have been about whether prosecutors were fired for partisan or ideological reasons, now NPR is raising questions as to why Leslie Hagen, by all accounts an ideal prosecutor and a loyal Republican, was let go.

So, what was Goodling’s problem with Hagen?

The Justice Department’s inspector general is looking into whether Hagen was dismissed after a rumor reached Goodling that Hagen is a lesbian.

We know that the Justice Department under both John Ashcroft and Alberto Gonzales was discriminatory against its gay employees, disallowing them to meet on the same terms as other employee groups. We also know that the current Attorney General, Michael Mukasey, appears less hostile to gay citizens and employees. Let’s hope that if heterosexuality has been used as a prerequisite to employment in the past, those responsible are brought to scorn and equal opportunity be made the rule for the rest of Mukasey’s term.

Discrimination at the State Department Revisited

In December 2007 we told you that Michael Guest was retiring from the State Department due to anti-gay discrimination. Columnist Deb Price has a follow up.

Justice Department to Treat Gay Employee Group Equally

The heads of the various Departments of the federal government have tremendous power over decisions impacting the lives of their employees. This can be especially true for gay employees.

Under Attorney General Janet Reno, during the Clinton administration, the gay employee group was given the same freedom and support as other employee groups. That changed when John Ashcroft took power. Ashcroft, and his successor Alberto Gonzalez, denied DOJ Pride any support for their annual pride celebration and refused them the same access to email, bulletin boards, or postings that they allowed others.

However, the Washington Post is reporting that under the new Attorney General appointed in November, Michael Mukasey, DOJ Pride is again able to participate and make others aware of their existence.

Mukusey’s nomination was contentious, primarily over issues of the legality of waterboarding, but he was considered a concensus candidate and not a Bush insider. I believe that this action illustrates a willingness on the part of Mukasey to do things differently and think outside of the Administration’s narrow idealisms.

Let’s hope that this is but the first step Mukasey will take in refurbishing the tarnished image of the Department of Justice.

Homeland Security’s “Suitability Matrix”

The Department of Homeland Security retains the option of denying you a clearance for sodomy and other acts of “carnal knowledge.” Seems incredible, but an applicant for a security clearance at NASA has the goods. It turns out that the Office of Personnel Management has published a quaintly-named “Suitability Matrix” (PDF: 12.6 MB/12 pages) which lists sodomy as a Severity C (with D being most severe) “criminal and moral conduct” issue for denying a clearance.

Lawrence v. Texas — or any other court ruling or law for that matter — has very little meaning in the age of terror.