Box Turtle Bulletin

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.

Callous from Dallas: Maurine Dickey

Meet Maurine Dickey.

No, she’s not a drag queen – that Texas Republican oh-so-smart 1980’s Clairee Belcher housewife look is her real persona, and as for the name… well, sometimes fate has a quirky sense of humor.

Maurine is one of five Dallas County Commissioners and her smile is not quite so superior today. Maurine just lost a vote in the commission (party line 3-2) on a bill (she opposed) and Dallas County will now give a stipend to reimburse gay and unmarried employees who are in domestic partnership arrangements and who pay for their partner’s health insurance. (Dallas Morning News)

The policy caps the stipend at the amount the county would pay for a married employee’s spouse. It is not available for employee’s whose partner has access to health care coverage through their own employer. Employees must sign an affidavit that defines the relationship as a domestic partnership and prove that they and their partner have lived and operated a household together for at least six months.

Now as we know, this is far from equal. I very much doubt that most employees’ partners can get insurance at or below the county’s negotiated rates or with anywhere near the benefits. But it still was too much for Maurine. Poor Maurine.

Republican Commissioner Maurine Dickey said the county was essentially creating a special pool of people for whom to provide separate benefits. She questioned whether commissioners should create special health care programs for obese people, smokers or people who drive blue Pontiacs made before 1978.

First off, let me say that Maurine is right. The county did give special rights and separate benefits. This stipend isn’t available to all employees on an equal basis and it is absolutely true that this is unfair. I oppose creating special pools of people. I oppose separate benefits.

Except Maurine seems to have forgotten one itsy-bitsy little thing: the county wasn’t the one who created this special pool of people; she and her buddies did that. In 2005, the Texas folk who think like Maurine looks decided that of all the people who share their lives with the one they love and who vow life-long devotion and care, they would exclude one group from the legal protections of marriage. It was the Maurine Dickeys of Texas who created that “special pool of people” to set aside and treat differently.

And it was Maurine and crew who decided that the benefits of gay employees would be different. Gay employees don’t want “separate benefits”, they want to be treated exactly like Maurine. And if Maurine doubts this then let’s trade; let the gay employees have the full legal protections of marriage and Maurine can get a stipend.

To complain that the weak secondary provisions which go a little ways to make up for the burden of your discrimination are “special”, to begrudge the crumbs tossed in the direction of those you’ve barred from the banquet, to be dismissive to those whom you’ve already unfairly deprived from equality under the law, that is callous and cruel.

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.

Obama authorizes benefits for federal employees

President Barack Obama is limited by federal law from treating the domestic partners of federal employees as spouses. However, his counsel has identified specific benefits which he can elect, as Executive, to offer.

Today the President issued a memo directing that such benefits be provided. (Reuters)

Obama said he had directed government agencies to offer a number of new benefits to the families of gay and lesbian federal employees, including family assistance services, hardship transfers and relocation expenses.

His directive builds on a move he made last year to offer healthcare benefits, sick leave and medical evacuation for same-sex partners of federal employees.

2010benefits.mem

Transcript of Obama’s Signing Ceremony for Federal “Benefits”

REMARKS BY THE PRESIDENT AT THE SIGNING OF A PRESIDENTIAL MEMORANDUM REGARDING FEDERAL BENEFITS AND NON-DISCRIMINATION

Oval Office 6:04 P.M. EDT

THE PRESIDENT: Well, today I’m proud to issue a presidential memorandum that paves the way for long-overdue progress in our nation’s pursuit of equality.

Many of our government’s hard-working, dedicated, and patriotic public servants have long been denied basic rights that their colleagues enjoy for one simple reason — the people that they love are of the same sex.

Currently, for example, LGBT federal employees can’t always use sick leave to care for their domestic partners or their partners’ children. Their partners aren’t covered under long-term care insurance. Partners of American Foreign Service officers abroad aren’t treated the same way when it comes to the use of medical facilities or visitation rights in case of an emergency.

These are just some of the wrongs that we intend to right today.

In consultation with Secretary of State Clinton, as well as OPM Director John Berry, my administration has completed a long and thorough review to identify a number of areas where we can extend federal benefits to the same-sex partners of Foreign Service and executive branch government employees.

I’m requesting that Secretary Clinton and Director Berry do so where possible under existing law — and that the heads of all executive departments and agencies conduct reviews to determine where they may do the same.

Hundreds of Fortune 500 companies already offer such benefits not only because it’s the right thing to do, but because they recognize that it helps them compete for and retain the best possible talent — and we need top talent serving their country right now more than ever.

Now, under current law, we cannot provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples.

That’s why I’m proud to announce my support for the Domestic Partners Benefits and Obligations Act, crucial legislation that will guarantee these rights for all federal employees.

I want to thank Representative Tammy Baldwin, who is behind me somewhere — there she is, right there — for her tireless leadership on this bill and in the broader struggle for equality. I want to thank Senator Joe Lieberman — Joe is here — as well as Susan Collins for championing this bill in the Senate; and Representative Barney Frank for his leadership on this and so many other issues — in fact, this is his second trip to the White House today. (Laughter.)

It’s a day that marks a historic step towards the changes we seek, but I think we all have to acknowledge this is only one step. Among the steps we have not yet taken is to repeal the Defense of Marriage Act. I believe it’s discriminatory, I think it interferes with states’ rights, and we will work with Congress to overturn it.

We’ve got more work to do to ensure that government treats all its citizens equally; to fight injustice and intolerance in all its forms; and to bring about that more perfect union. I’m committed to these efforts, and I pledge to work tirelessly on behalf of these issues in the months and years to come.

Thank you very much everybody, and with that I am going to sign this executive order.

(The memorandum is signed.)

(Applause.)

END 6:08 P.M. EDT

Is anyone rushing now to buy their Democratic Party fundraiser ticket?

Mainstream Press Noticing LGBT Anger At Obama

It’s very rare to see any the squabbles and controversies that play out on LGBT blogs and news organizations show up beyond our little playground. Huge events and debates can rage in the blogosphere with virtually no notice from the mainstream press. Not this time. Many of the majors are noticing the anger that many LGBT people feel over the Justice Department’s DOMA brief, as well as the cynical attempts by the Obama administration to try to change the subject. More importantly, the mainstream press is noticing that those attempts aren’t working. We already noted editorials from the New York Times and the Los Angeles Times. Here’s CNN:

President Obama’s decision to grant some benefits to the same-sex partners of federal employees is seen by some as his attempt to extend an olive branch to the gay and lesbian community, but critics say it’s “too little, too late.”

“It seems to me at least to be a nice gesture, but a disappointment,” said Richard Kim, a senior editor at The Nation magazine.

…The rancor threatens to disrupt a big Democratic National Committee gay fundraiser in Washington next week. Vice President Biden is the guest at next Thursday’s DNC’s LBGT Leadership Council 10th Annual Dinner in Washington. Critics are calling for Frank and other gay congressional leaders to boycott the dinner, for which tickets go for $1,000 to $30,000 a plate. Activist David Mixner and blogger Andy Towle, two well-known gay rights advocates, announced that they were pulling out, citing disappointment with the DOMA brief.

The Associated Press has gotten into the act as well: 

President Barack Obama signaled to gay rights activists Wednesday that he’s listening to their priorities by extending some benefits to same-sex partners of federal employees. But he didn’t give them even close to everything they want, bringing growing anger against the president to the surface.

Obama aides urged gays and lesbians to have patience with the new White House’s slow-and-steady approach to the politically charged topic. But his critics — and there were many — saw Wednesday’s incremental move to expand gay rights as little more than pandering to a reliably Democratic voting bloc, with the primary aim not of making policy more fair but of cutting short a fundraising boycott.

“When a president tells you he’s going to be different, you believe him,” said John Aravosis, a Washington-based gay activist. “It’s not that he didn’t follow through on his promises, he stabbed us in the back.”

Here’s USA Today’s blog, The Oval:

Response from gay rights groups to President Obama’s offer of some federal benefits to same-sex partners of government employees: The sound of one hand clapping.

Leaders of the gay community are making it clear that the president’s action, expected at a White House signing ceremony later this afternoon, doesn’t make up for the administration’s refusal to abandon the Defense of Marriage Act, a 1996 law prohibiting federal recognition of marriages between same sex couples. As we reported earlier this morning, gay rights groups are incensed over a legal brief that the Justice Department filed last week in defense of the law.

Newsweek’s blog, The Gaggle, asks, “Can Obama win back the gay community?”

[L]ast week the Obama Justice Department filed a legal brief in federal court defending DOMA against a lawsuit that claims the act is unconstitutional. In fact, in legal terms, the Obama aides equated same sex marriage to incest, a move that horrified gay rights groups including the Human Rights Campaign. Coupled with Obama\’s silence on another campaign promise—his pledge to repeal the “Don\’t Ask, Don\’t Tell” policy in the military—several high-profile gay activists announced they would boycott a DNC fundraiser scheduled for next week featuring Vice President Joe Biden and several gay and lesbian members of Congress, including Barney Frank and Tammy Baldwin. All the bad publicity prompted the White House to schedule Obama\’s announcement today, though an administration official insisted to Newsweek that the “memo” had been in the works all along.

The reaction to Obama\’s “memo” has been pretty lukewarm so far. HRC, in a statement, described it merely as a “first brick.” But everybody is watching very closely to see what Obama will actually say. Will he repeat his vow to repeal DOMA in spite of last week’s legal brief? That’s one rumor going around today, though White House aides won’t comment. Meanwhile, David Mixner, a prominent gay rights activist who campaigned for Obama, says he’s still boycotting the fundraiser next week—unless he hears Obama say something amazing today. “I feel betrayed,” he told Newsweek in an interview this morning. “People are really angry.” He said it\’s not enough for Obama and his aides to hint that they\’ll do more for the gay community in the future. “We heard that during the Clinton years,” Mixner said. “Too many pressing issues? That\’s code for never.”

Unfortunately, not all of the reporting has been accurate. Most MSM news reports omit the fact that health benefits aren’t part of the President’s latest memorandum. In fact, the Los Angeles Times erroneously hailed the President’s move“to extend healthcare and other benefits to the same-sex partners of federal employees.” But the Times did note the anger which led to the President’s latest move:

Nothing, however, matches the outrage provoked by last week’s court filing in Santa Ana supporting the Defense of Marriage Act. The fact that the brief was filed during Gay Pride Month, which Obama saluted with a formal proclamation, only compounded the sense of insult.

“You have some appointments that have been good and a proclamation,” said [Ken] Sherrill, who has written extensively on the history of the gay rights movement. “And then two tangible areas where the administration has done something wrongheaded and offensive. Doing nothing at all would have been a helluva lot better.”

Aravosis Not Impressed by “Benefits”

In a Salon article, John Aravosis expressed his dissatisfaction with President Obama’s planned announcement of federal employee benefits.

Tonight, President Fierce will try to make amends by signing either a memorandum, a directive, or an executive order, directing some federal agencies, but not others, to provide some benefits, but not others, to some gay federal employees, but not others, at some undisclosed time in the future. (And the benefits may reportedly go away when Obama leaves office.)

First problem, federal agencies already have the right to provide these benefits to gay employees — and several, including at least one DOD agency, do. Second problem, the administration can\’t tell us exactly which benefits they\’re talking about and for which employees. That\’s because this was all hastily thrown together after the incestuous and pedophilic gays nearly brought down a Democratic National Committee gay pride fundraiser scheduled for next week. A gay blogger got hold of the event\’s guest list and published it, and once Washington, D.C.\’s gay paper, the Washington Blade, announced that it would be staking out the entrance to the event with camera and video, the $1,000 a head attendees started dropping like flies.

Jennifer Vanusco at the Huffington Post gives details of the rather uninformative statements by John Berry:

Berry also said that a memo would be sent out to all Federal departments asking them to look for additional benefits they could extend, and instructing them that making employment decisions on the basis of anything other than job performance – including sexual orientation and gender identity – is not acceptable.

but she reminds us

this guidance was already extended by Bill Clinton and was followed by George W. Bush. And the “benefits” are already provided by many supervisors at their discretion.

About Those “New” Federal Benefits for Gay Employees…

…They’re not so new. I already noted that the announced benefits pertaining to the foreign service had already been announced last month. John Aravosis confirmed that the rest aren’t new either:

I just asked OPM Director John Berry, on a White House media conference call, whether in fact federal agencies already have the right to give these benefits to gay employees. The answer, “yes.” So what’s new about tonight? Obama is going to “tell” the agencies to give the benefits — as if any agency in the Obama administration would dare tell a gay employee no to a request for time off to attend their partner’s funeral?

Need any more confirmation that all Obama wanted to do was salvage the DNC fundraiser?

White House Fact Sheet on Benefits for LGBT Federal Employees

The White House has issued this fact sheet on the Presidential Memorandum on federal benefits that he is due to sign later this afternoon. Some of this which touches on the foreign services has already been announced last month.

Fact Sheet: Presidential Memorandum on Federal Benefits and Non-Discrimination

In an Oval Office event later today, President Barack Obama will sign a Presidential Memorandum on Federal Benefits and Non-Discrimination. The Memorandum follows a review by the Director of the Office of Personnel Management ant the Secretary of State regarding what benefits may be extended to the same-sex partners of federal employees in the civil service and the foreign service within the confines of existing federal laws and statutes.

Over the past several months, the Director of the Office of Personnel Management and the Secretary of State have conducted internal reviews to determine whether the benefits they administer may be extended to the same-sex partners of federal employees within the confines of existing laws and statutes. Both identified a number of such benefits.

For civil service employees, domestic partners of federal employees can be added to the long-term care insurance program; supervisors can also be required to allow employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children. For foreign service employees, a number of benefits were identified, including the use of medical facilities at posts abroad, medical evacuation from posts abroad, and inclusion in family size for housing allocations.

The Presidential Memorandum to be signed today will request that the Director of OPM and the Secretary of State act to extend to same-sex partners of federal employees the benefits they have identified. The Memorandum will also request the heads of all other executive branch departments and agencies to conduct internal reviews to determine whether other benefits they administer might be similarly extended, and to report the results of those reviews to the Director of OPM.

The Memorandum will also direct OPM to issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, which make it unlawful to discriminate against federal employees or applicants for federal employment on the basis of factors not related to job performance.

[Hat tip: Queerty]

Obama To Extend Minimal “Partner Benefits” To Federal Employees

The Advocate has a very brief mention that President Barack Obama will sign a presidential memorandum tomorrow at 5:45 pm EDT to provide benefits to same-sex partners of federal employees. He is scheduled to make a few brief remarks following the signing.

Update: When I first posted this, the Advocate story only had two paragraphs, the first and the last one.  This part wasn’t part of the article yet:

The White House press office declined to detail which benefits would be included, but people familiar with the legal obstacles posed by the 1996 Defense of Marriage Act, said health benefits are not likely to be a part of the package. The Lieberman-Baldwin Domestic Partnership Benefits and Obligations Act, a bi-cameral bill that was introduced last month, will still need to be passed by Congress in order for full benefits to be extended to domestic partners of federal workers.

“Our analysis has been that it will take an act of Congress for the full suite of benefits such as health benefits and retirement benefits to be provided for same-sex couples and families,” said Leonard Hirsch, president of Federal Globe: Gay, Lesbian, Bisexual, Transgender Employees of the Federal Government. Hirsch said the executive branch has the authority to extend certain other benefits through departments and agencies, such as providing relocation costs for partners of federal employees.

Really? Relocation expenses? You’ve got to be kidding me. Health and retirement benefits are the most important part of any benefits plan. This one is practically useless — and a cruel joke at that, given the events of the past few days. If this is supposed to be a sop that the Obama administration is throwing to LGBT employees, it’s a pretty limp one.

I’ve now updated the title of this post to put “Partner Benefits” in scare quotes where they belong.

Update: There’s more. President Obama will be signing a memorandum, not an executive order. Which means that it will only be in effect while Obama is in office. LGBT advocates are, shall we say, underwhelmed:

The executive director of the Empire State Pride Agenda, a large state-based gay rights group, Alan Van Capelle, greeted today’s announcement sarcastically.

“Welcome to 1999,” he told POLITICO. “How revolutionary of the White House to give benefits to same-sex couples, when two-thirds of conservative Wall Street are already doing it. What an achievement.”

“It’s just one of the things that should have been done in January,” Van Capelle, who was among those taking his name off the Biden event, said, calling for a “comprehensive strategy.” “If the President makes the announcement tomorrow, it will still fall short of what LGBT people are expecting from this administration.”

Michigan Court Rules Against Health Care Benefits

We’ve heard this over and over again: opponents to same-sex marriage don’t want to go after our domestic partnership benefits. We heard it most recently here in Arizona just a few weeks ago when opponents to same-sex marriage accuse LGBT advocates of “dragging in other issues” when they warn about the potential dangers of these anti-marriage amendments.

Michigan now provides a perfect object lesson:

An amendment to the state constitution approved by voters in 2004 to define marriage as the union of one man and one woman also prohibits public employers from providing health care and other benefits to the same sex partners of employees, a divided Michigan Supreme Court ruled today.

When anti-marriage activists tell you that their proposals have nothing to do with domestic partnerships, don’t believe it. They said that in Michigan also.