Category: Gay Rights

TIME TO LET GAYS MARRY AND HAVE THEIR CAKE TOO

Poor Antonin Scalia. He missed the dessert course of gay rights cases at the Supreme Court this week. Only his untimely death could have kept this corpulent originalist from an oral argument banquet he knew was coming long before he died. The question before the Supremes? Can an anti-gay-marriage baker refuse to make a wedding cake for two grooms?

Nobody could have anticipated a wedding cake dialectic back in 1986. That was when the Court decided Bowers v. Hardwick, a ruling that upheld state sodomy statutes criminalizing sexual relations between same-sex partners. The majority held that the Constitution confers no protections on gays and lesbians.

Seventeen years later, however, the Court embarked on what Scalia considered a slippery slope “to end all morals.” In 2003, the Court reversed its earlier decision and, in Lawrence v. Texas, said laws effectively banning gay sex were unconstitutional. Although none of the litigators in that case were even remotely thinking about gay marriage back then, Scalia was several chess moves ahead. In a sharply crafted dissent, he prophetically predicted that it was only a matter of time before the Court would be fighting over gay wedding cakes.

If “homosexual conduct” is no longer proscribed, Scalia posited in his dissent, “what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?” Those words, although composed in a font of deep sarcasm, later served as the plaintiffs’ road map in legal battles that brought down the Defense of Marriage Act in 2013 and, finally, in 2015, established the constitutional right to marry for gay and lesbian couples.

Scalia didn’t know whether it would be a butcher, a baker or a candlestick maker, but he was pretty certain that this “slippery slope” of gay rights would one day end up with a hoot and a holler from somewhere in the vast matrimonial industrial complex. Stepping up to prove him right was Colorado baker Jack Phillips. The betrothed couple, David Mullins and Charlie Craig, went to Phillips’ Masterpiece Cakeshop to order a cake for their wedding. The baker told them he was personally opposed to gay marriage and, for that reason, would not bake them a wedding cake.

Mullins and Craig argue that Phillips’ refusal to do business with them violated Colorado’s law prohibiting discrimination on the basis of sexual orientation. The Colorado Civil Rights Commission agreed, and found Phillips in violation of the statute. The issue before the Supreme Court this week was over whether the baker’s free speech rights were violated. Phillips argued that the act of making a cake for a gay wedding was, in effect, forced speech in support of the marriage.

Don’t let the relative frivolity of a wedding cake fool you. There’s a lot more than dessert riding on this case. If the baker gets a judicial pass to discriminate against lesbians and gays, a long line of other vendors are likely to emerge: dress makers, florists, photographers, caterers, venue owners. And that’s just in the context of weddings. In Colorado and at least 21 other states, it is against the law to discriminate in hiring on the basis of sexual orientation. If the baker wins this case, it’s not a stretch to imagine homophobic employers passing over LGBT applicants based on “free speech” rights.

The history of civil rights legislation is replete with demands for exceptions to discrimination bans, but those adopted have been narrowly and specifically defined in the statute. For example, a religious institution may limit hiring to practitioners of that religion. The “free speech” exemption is a dishonest and absurdist escape from the very intent of nondiscrimination laws. Using the Colorado baker’s argument, a racist landlord could refuse to rent an apartment to blacks on the basis that to do so would be “forced speech”, namely that he approves of black people.

In the real world, selling a cake for a gay wedding, or renting an apartment to a black family, endorses neither the marriage nor the tenants. It simply follows the law. In the public marketplace, a seller’s wares must be dispensed in accordance with applicable nondiscrimination laws. Granting a pass for discrimination based on the discriminator’s personal belief could well set off the slipperiest slope of them all. All discrimination emanates from personal belief. That’s why the laws were adopted in the first place. You can believe someone is inferior because of who they are, you just can’t penalize them for it when doing business with them.

The notion that Jack Phillips, by making a wedding cake, would be forced into advocating for the marriage of his two would-be male customers is total nonsense. He’s not making a toast, throwing rice or even going to the wedding. He’s not blessing the happy couple. He’s just baking a cake. As Justice Sonia Sotomayor said, “When have we ever given protection to food?” Unfortunately, this Court appears sharply divided on the issue. The crucial vote will likely be that of Justice Anthony Kennedy who kept everyone guessing this week by offering critical comments to both sides.

The only safe bet right now is that in some afterlife or another, Antonin Scalia is chuckling to himself. He was, after all, right about one thing: When you give basic human rights to the oppressed, those who benefit from the oppression will fight to maintain their ways. It’s time to serve up the just desserts (with Justice Scalia’s posthumous dissent duly noted): Let them eat cake.

TRUMP: A GROWING GOITER ON THE BODY OF HUMAN RIGHTS

In case anyone was wondering why President Trump broke with White House tradition by not officially recognizing June as LGBT Pride Month, we got the answer this week: he didn’t fly the rainbow flag in June because he was planning to burn it in July. It apparently wasn’t enough for our bully-in-chief to take cruel, cheap Twitter shots at individual citizens. Insulting Meryl Streep, Snoop Dog, his own attorney general and the Broadway cast of “Hamilton” might give him a quick morning buzz, but the Donald’s real highs come from decimating human rights for large groups of Americans. Like the thousands of patriotic transgender soldiers serving in the armed forces.

In a series of three early Wednesday morning tweets, the president said the government “will not accept or allow transgender individuals to serve in any capacity in the U.S. military”. That was just the opening act in his anti-LGBT crusade. Later that day, the Trump administration intervened in a major court case for the sole purpose of arguing that gays and lesbians should have no legal protection against employment discrimination. Apparently, that means this 2016 Trump tweet is no longer operative: “Thank you to the LGBT community! I will fight for you . . .”

Depending on who is doing the counting, there are currently between 4,000 and 15,000 transgender troops in the country’s military. Most were closeted until June 30 of 2016, when Obama’s defense secretary, Ash Carter, announced that they could all serve openly. Trump’s Twitter reversal seemed, on its face, to be breathtakingly cruel, even for a president who has made cruelty an art form. These soldiers were told, at long last, they could be who they are and go right on serving their country, only to have the rug yanked out from under them by a tweet. It’s hard to think of any historic parallel where human rights, once granted, were taken away. It would be like Andrew Johnson rescinding the Emancipation Proclamation after he succeeded Abraham Lincoln. Coincidentally, Wednesday’s transgender ban tweet was issued on the 69th anniversary of President Truman’s order abolishing racial discrimination in the armed forces. The question is whether that will withstand another three-and-half years of this president.

The tweeted trans ban has so far produced little beyond anger, confusion and pandemonium. The military brass were stunned and said there will be no immediate changes until the White House clarifies the policy with something other than a tweet. Defense Secretary James Mattis was reportedly caught off guard by the announcement and was said to have been “appalled” by it.

Although some suggested that Trump’s move was a ploy to shore up his base, the immediate reaction from most Congressional conservatives was highly critical. (Here, here and here.) There’s another theory: the transgender ban is all about building the Mexican wall. Trump’s cherished wall project is part of an overall defense spending bill. That legislation has stalled temporarily due to a behind-the-scenes squabble over funding for gender reassignment surgery and hormone treatment. Some Republicans want to exclude such coverage from the bill. Others, including most military leaders, have opposed reducing medical benefits for transgender troops. (The estimated price tag for these services is $8.4 million a year, less than 1% of active duty health care spending.) So the speculation, advanced Friday by Politico, is that an impatient Trump grew tired of waiting for a resolution on the medical costs, and simply gave transgender soldiers the boot so he could get a vote on his wall. Only in a bizarre, two-for-one Trumpian kind of way, does this makes sense: persecute one marginalized group in order to build a wall around an even larger one.

Meanwhile, Trump’s Justice Department intervened in a federal lawsuit brought by another agency – the Equal Employment Opportunity Commission – to argue that the 1964 Civil Rights Act does not prohibit discrimination on the basis of sexual orientation. For years, it had been the position of both the Justice Department and the EEOC that the law’s prohibition against sex discrimination included sexual orientation. The EEOC’s case, now before a federal appellate court in New York, involves a sky diving company that supposedly fired an employee because he is gay. Although this story took a back seat to other Trump atrocities of the day, it was a highly significant reversal. The federal government is now officially on record supporting the right of private employers to fire lesbians and gays for being . . .well, for being lesbian and gay. Courts have issued conflicting interpretations and the matter is undoubtedly headed to the Supreme Court. Until Wednesday, it was going there with the U.S. government fully backing the view that the law’s ban on sex discrimination includes sexual orientation and gender identification. In one 24-hour period, this administration not only threw transgender individuals under the bus, it gave every private employer the green light to discriminate against them and lesbians and gays.

With respect to U.S. presidents and presidential aspirants, the story of LGBT rights is not exactly one of profiles in courage. Ronald Reagan turned his back on the AIDS epidemic. Bill Clinton signed the Defense of Marriage Act. George Bush used antigay animus to capture a second term. Barack Obama didn’t “evolve” into a marriage equality supporter until the fourth year of his presidency. Hillary Clinton didn’t get there publicly until 2013. But Donald Trump has achieved a level of human rights shame that soars past all of them. He boasts about not being an antigay ideologue. Yet, he is so much worse than that. Trump’s singular ideological commitment is to himself. Everybody else is expendable and irrelevant. He thinks nothing of crushing the hopes, dreams and esteem of transgender soldiers, or putting this country’s official stamp of approval on homophobic and transphobic discrimination, just to assuage whatever momentary mood may pass through him. When it comes to human rights, it just doesn’t get much worse than that.