Ari Ezra Waldman Hub




Fourth Circuit Affirms Virginia's Ban on Gay Marriage Unconstitutional: An Analysis of the Dissent

BY ARI EZRA WALDMAN

NiemeyerToday, the Richmond, Virginia-based Fourth Circuit affirmed a lower court judge's decision striking down Virginia's ban on same-sex marriage. When last we discussed this case, a three-judge panel was hearing oral argument and one judge, Paul V. Niemeyer (right), was using his time questioning the pro-equality advocacy to spout particular offensive rhetoric.

Not surprisingly, Judge Niemeyer is in the minority today, writing a lone dissenting opinion to the majority's affirmation that banning gays from marrying denies them a fundamental right under the U.S. Constitution. That fundamental right -- the right to marry -- is denied to gay persons when a state says that they cannot marry the person they love, that they could be forced to deny the equality of their love and union (by being relegated to a civil union or worse) or could easily marry a stranger as long as that stranger is of a different gender.

The majority opinion sounds pretty familiar: the appellants have standing, Baker v. Nelson does not foreclose a federal decision on the merits, and Virginia's ban violates the Fifth and Fourteenth Amendments by denying gays the fundamental right to marry, a right that the Supreme Court has affirmed and reaffirmed more than 15 times.

We have covered all those matters before. AFTER THE JUMP, I want to spend a few column inches on the dissent, a diatribe that is dimissive, at best, and hateful, at worst.

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The Most Dangerous Line in the Supreme Court's Hobby Lobby Ruling

AlitoBY ARI EZRA WALDMAN

The most dangerous line in the Supreme Court’s recent decision in Burwell v. Hobby Lobby doesn’t come until page 46. It reads as follows:

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. 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.

That doesn’t sound too bad; indeed, it is probably one of the few statements in Justice Alito’s opinion that many of us would endorse.

Its danger, particularly to the LGBT community, rests in what is not said.

As we have discussed at length, Hobby Lobby allowed a family-run, for-profit arts and crafts company to deny its female employees access to certain contraception simply because that contraception violates the religious beliefs of the company owners.

GinsburgJustice Ruth Bader Ginsburg’s dissent cautioned that the Court was opening a door to allow anyone to use the pretext of religion to opt out of antidiscrimination or public accommodations laws. Justice Alito’s response was to deny the charge, arguing that where the government has a compelling interest in preventing discrimination, as it does in preventing discrimination on the basis of race, the Hobby Lobby exemption would not succeed.

But what happens when the government does not have that “compelling interest”?

Justice Alito chose a convenient example to respond to Justice Ginsburg’s concern. Most people agree that discrimination on the basis of race is not just bad, but absolutely anathematic to our constitutional tradition. But no one in the Court’s five-justice conservative majority has ever said that the state has a compelling interest to prevent discrimination on the basis of sexual orientation or gender identity. Even Justice Kennedy, the author of the Supreme Court’s three gay rights decisions, has carefully declined to declare that antigay discrimination merits heightened scrutiny or that the government has a compelling interest to permit gays to marry. We might believe that the same compelling interest that gives the state the power to prevent discrimination on the basis of race gives the state the same power to prevent discrimination on another status that has nothing to do with an individual’s ability to contribute to society—namely, sexual orientation or gender identity. But there are many judges out there who are not yet there. Congress isn’t even there yet.

CONTINUED, AFTER THE JUMP...

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The President's Executive Order and Hobby Lobby: The Legal Connection

1_eo_obama

BY ARI EZRA WALDMAN

President Obama has made good on another pro-equality policy promise. Today, he amended a standing executive order to prohibit federal contractors from discriminating on the basis of sexual orientation. Instead of creating a new nondiscrimination rule with an unnecessary and broad religious exemption, the President simply added the words “sexual orientation” and “gender identity” to the list of impermissible bases for discrimination. (Technically, more than these four words were added, but you get the idea.). The amendments also explicitly ban discrimination against federal employees on the basis of “gender identity.”

LGBT advocates have been clamoring for this kind of action for some time. Several years ago, many activists pushed Congress to pass the Employment Non-Discrimination Act (ENDA), a broad nondiscrimination law that would have covered more than just federal contractors. The law passed the Senate with every Democrat and only a handful of Republican votes, but had no future in the Republican-controlled House. Even worse, the draft bill included a broad religious exemption that has recently inspired several LGBT organizations, including the ACLU, the Gay & Lesbian Advocates and Defenders, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center, to withdraw their support for the bill. Now, our progressive allies are loathe to touch it.

Knowing that Republican House Speaker John Boehner was never going to bring a nondiscrimination bill to the floor, many advocates demanded that the President sign an executive order instead. And from now on, if a company wants to receive a federal contract, it must sign a pledge that it does not discrimination against gays.

HobbylobbyThat is great news, but the legal landscape after the Supreme Court’s recent decision in Burwell v. Hobby Lobby makes this story more complicated. If a private, for-profit company now has permission to discriminate against women because its owners’ religion tells it to, one wonders if a similar company who wants a federal contract could use the same religious exemption to opt out of equal treatment of gays. AFTER THE JUMP, I discuss the executive order and the questions raised by Hobby Lobby.

CONTINUED, AFTER THE JUMP...

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Hobby Lobby and the Democrats Who Want to Fix It

SupremesBY ARI EZRA WALDMAN

In Burwell v. Hobby Lobby, the Supreme Court's conservative majority allowed a large swath of for-profit companies to deny contraception to their female employees. Hobby Lobby, a national chain of arts and crafts stores, is a privately held, for-profit company that is run by a religious family. It's not a church. Nor is it a religious-based organization. It is simply a company that happens to be owned by religious people, but employs about 21,000 of varying beliefs. The owners objected to the part of Obamacare that required employers to provide health insurance that includes access to certain forms of contraception. They challenged that requirement and won, leaving the Supreme Court with a decision that declared that Hobby Lobby was a "person" entitled to the religious rights of persons.

We discussed the details of that decision here, in Part 1 of this three-part series on Hobby Lobby. In Part 2, I discussed how the Supreme Court actually made Hobby Lobby worse! For now, let's put aside our understandable anger at a decision that discriminates against women, denies necessary health care to those who need it, abuses precedent, and bloats religious freedoms to dangerous levels.

Hobby Lobby was a confusing decision and it is worth discussing it again not only so we can all understand it, but so we can fully appreciate its potential effects on the LGBT community. The ruling discussed religious freedom, which is enshrined in the First Amendment, but it was really based on a statute passed by Congress called the Religious Freedom Restoration Act (RFRA) (as if religious freedom needed to be restored). It talked about corporations deserving the freedoms of persons, but it never fully explained if corporate personhood applies to everything or just certain freedoms and rights. Then, after going out of its way to explicitly narrow and cabin the decision to very specific situations, the Court majority did an about-face the next day, possibly expanded the scope of the decision, and admitted to the American people that, sometimes, the majority's words are just words, nothing more.

The decision did a lot of damage. So much damage, in fact, that Democrats in Congress are introducing legislation to overturn the decision. Speaker Boehner's conservative majority in the House is never going to bring the bill to the floor; the act of introducing the bill of pure (and great) politics. But to most of us, the entire scenario begs the question: How can Congress introduce a bill aimed at overturning a Supreme Court decision?

AFTER THE JUMP, I delve into the legal background of the Hobby Lobby decision so we can see how the case was decided and how legislation could fix it. 

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The Supreme Court Made Hobby Lobby Worse, for Women and for the LGBT Community

Hobbylobby

BY ARI EZRA WALDMAN

The end of a Supreme Court term usually brings a flurry of action on big cases. Last year, we got Justice Kennedy's decision in United States v. Windsor that struck down part of the Defense of Marriage Act and ushered in an unbroken marriage equality winning streak in the courts. This Supreme Court docket did not include any similar LGBT law cases. Nor did it end as heroically. This year, the Court's conservative majority allowed for profit companies to discriminate against women in the provision of health care in Burwell v. Hobby Lobby

But sometimes, it's the less heralded maneuvers that make all the difference: a silent nemesis that creeps up behind you can do a lot more damage than a screaming Visigoth charging head on.

SupremesThat's what happened at the end of the Court's term last month. Justice Alito's Hobby Lobby majority opinion explicitly limited the decision to closely-held (family-run) corporations and explicitly limited it to the particular forms of contraception that were at issue in the case. The justices in the majority went out of their way to say that the decision leaves antidiscrimination laws intact, that it does not apply to publicly-traded corporations, that the decision should be confined to its facts. What's more, the Court also stated that one of the main reasons the government could not compel for-profit companies to provide objectionable health care was because there already was a viable work around aimed at religious nonprofits. Those organizations fill out a form attesting to their religious objection and the contraception would be provided directly from the health care company and not through the employer.

Not 24 hours later, the Court proved to us that all those words meant nothing. After issuing a decision, the Court also ordered lower courts to rehear related cases that could be changed by the decision. If Justice Alito and the majority could be taken at their word, the only cases that would need rehearing were those cases within the explicit narrow confines of Hobby Lobby. But the order went further. To the great consternation of Justices Ginsburg, Sotomayor, and Kagan (notably, the three female justices on the Court), the majority ordered lower courts to rehear all pending cases involved religious exemptions to the contraception requirement, not just cases involving companies like Hobby Lobby and not just cases involving the particular forms of contraception involved in the case. And, as if that were not enough, the Court enjoined the very workaround meant for nonprofits that it appeared to endorse in Hobby Lobby as a viable alternative.

Left-leaning bloggers and writers -- not to mention the three female justices on the Court -- were apoplectic. The Court seems to have gone back on its word. Perhaps worse, the Court has broadened an already dangerous decision.

I summarize what the Court did, why Justice Sotomayor seemed so irate in her dissent, and why this matters for the LGBT community, AFTER THE JUMP...

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Federal Judge Strikes Down Kentucky's Marriage Discrimination Law

BY ARI EZRA WALDMAN

Kentucky-flagIn the 23rd consecutive pro-equality ruling from a federal court since the Supreme Court's decision in United States v. Windsor, Judge John G. Heyburn, a President George H.W. Bush appointee at the recommendation of now-Senate Minority Leader Mitch McConnell, struck down Kentucky's ban on gay couples marrying. Those of us following the situation in Kentucky knew this was coming: Judge Heyburn had previously ruled that Kentucky had to recognize the marriages of same-sex couples performed out of state. It was a small step to invalidate Kentucky's own ban.

The opinion in the case, aptly captioned Love v. Beshear, reviews much of the ground covered by the 22 rulings that preceded it. It also departs from the past by, in particular, both relying on Windsor and narrowing it. It explicitly declines to take the route preferred by the Tenth Circuit Court of Appeals in Kitchen v. Herbet, which was to find Utah's ban unconstitutional as a violation of a fundamental due process right, and instead relies on the Equal Protection Clause. Judge Heyburn concluded that Windsor was an equal protection ruling, not a due process one. The confusion stems from the lack of clarity in Justice Kennedy's opinion. The result is the same: the ban is unconstitutional.

AFTER THE JUMP, I review in detail Judge Heyburn's interpretation of Windsor and show how it is different than many of the cases that have come before it in the post-Windsor world.

Continue reading "Federal Judge Strikes Down Kentucky's Marriage Discrimination Law" »


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