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04/19/2007


The Supreme Court Will Rule on Obamacare's Contraception Requirement. Here's Why You Should Care.

By ARI EZRA WALDMAN

131002191139-tsr-moos-obamacare-sign-up-glitches-00000812-story-topLast week, the U.S. Supreme Court agreed to hear two cases challenging the Affordable Care Act. The last time that happened, the Court determined by a bare 5-4 majority that the so-called individual mandate, the requirement that everyone has to buy health insurance or pay a tax, was constitutional. Next year, the Court will consider whether corporations can refuse to provide insurance plans that include contraception if doing so would violate the religious beliefs of those corporations' owners.

This matters, not just to those of us in need of health care and not just to those of us who work for companies run by religious people. It matters to all LGBT Americans because the scope of this particular religious exemption could affect the scopes of other religious exemptions.

The cases -- Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius -- will determine the breadth of the religious exemption from Obamacare. Unfortunately, the pretext of religious freedom has gained much traction of late in justifying continued discrimination. And this Court's conservative majority has set itself up to strike a blow against equality.

AFTER THE JUMP, I will construct the argument I expect the Court's conservatives will use to expand the religious exemption. I will show how that argument is deeply flawed. And then I will show how dangerous it is for the LGBT community.

Continue reading "The Supreme Court Will Rule on Obamacare's Contraception Requirement. Here's Why You Should Care." »


Marriage Equality Comes to Hawaii: #TBT and 20 Years of Marriage History

By ARI EZRA WALDMAN

It's appropriate that today is #tbt (Throw-back Thursday) because this week, marriage equality came to Hawai'i, the state where it all began, where the this long (and increasingly successful) fight for the freedom to marry we are in right now started.

BaehrOf course, that's not entirely true. The fight for the freedom to marry for the LGBT community began decades and decades ago, in small living rooms in New York and secret coffee shops in San Francisco and in the minds of a few forward-thinking law students. In the late 1960s, a gay couple asked for a marriage license in Minnesota; the Minnesota Supreme Court said no. The U.S. Supreme Court had no objection. That was a case called Baker v. Nelson and it ended in 1971, over 40 years ago! Jack Baker's and Michael McConnell's losing effort was the first salvo in the first generation of marriage cases.

The current generation of marriage cases began in Hawai'i when three same-sex couples, including Ninia Baehr and Genora Dancel (pictured, right), asked the Hawai'i Department of Health for a marriage license, arguing that they met every state requirement for marriage except for the mere fact that each person loved someone of the same sex.

What happened next was remarkable.

Follow me AFTER THE JUMP to get the rest of the story and see how what happened in Hawai'i brought us to where we are today.

Continue reading "Marriage Equality Comes to Hawaii: #TBT and 20 Years of Marriage History" »


ENDA's Problems and Potential

By ARI EZRA WALDMAN

The Employment Non-Discrimination Act (ENDA), which would protect millions of Americans from being fired from their jobs simply because of their sexuality, will likely pass the United States Senate soon. A small handful of Republicans (Sens. Collins, Hatch, Heller, Portman, Ayotte, Kirk, and Toomey) joined every Democrat and Democratic-aligned Independent to overcome a Republican filibuster that would have prevented the Senate from even discussing the bill. The bill will most likely never pass the Republican-controlled House.

EqualityThe discussion on ENDA now turns to the law's religious exemptions. I wrote previously about the dangers of those exemptions: they are gaping holes in equality that threaten to make equality meaningless if left unchecked. Controversy surrounding those exemptions occupied nearly an entire hour of discussion during the "ENDA Situation Room," an expert roundtable streamed live here on Towleroad, hosted by leading ENDA advocate and Freedom to Work Founder Tico Almeida and co-hosted by New York Law School. What to do about proposed exemptions is dividing leaders of the gay community, pitting Lambda Legal and Human Rights Campaign advocates on different paths.

Not all religious exemptions to equality laws are bad; no one wants to force a church or synagogue to do something that its liturgy tells it not to. But a cavalier approach to these exemptions could be very bad. The ENDA religious exemption debate is not, counterintuitively, just about exemptions to ENDA's application. It is about future judicial interpretations of ENDA. It's about every future LGBT equality law. It is about accepting that LGBT equality is some special category of equality that unnecessarily gets a shorter reach, like swiss cheese with extra holes. It is about elevating and changing an unrelated right to an antagonist of equality. And every religious exemption that we let slide weakens our position on all of these issues in the next fight.

Continued AFTER THE JUMP.

Continue reading "ENDA's Problems and Potential" »


Two Marriage Equality Cases in Virginia: What's Going On?

Virginia

By ARI EZRA WALDMAN

There are two federal marriage equality cases going on in Virginia. They look a lot alike: Both revolve around same-sex Virginia couples who want to marry; both challenge Virginia's explicit constitutional ban on such unions; both address the lack of recognition of valid out-of-state marriages of same-sex couples; both want to reach the Supreme Court and hope to decide, once and for all, that bans on marriage freedom are unconstitutional.

The cases differ in two critical aspects: Different courts and different lawyers.

Olson_boiesIn one case, the American Foundation of Equal Rights (AFER) and Ted Olson and David Boies have taken the lead even though it was originally filed by a local law firm. In the other case, Lambda Legal and the American Civil Liberties Union (ACLU) have picked up the baton of marriage equality.    

Some say it's a race. Who can craft the best case. Who can win first. Who can get to the Supreme Court first. There has been some chatter among the LGBT press in this vein.

I do not dive so quickly toward paranoia. No one can deny that there's a certain competitive storm swirling around these neighboring lawsuits. After all, AFER got to the Supreme Court first, in Perry v. Brown, but the ACLU actually won an important victory in Windsor, the DOMA case. Meanwhile, Lambda was filing and winning marriage equality cases throughout the country and, of course, won us the right to be who we are ten years ago in Lawrence v. Texas. 

But there is nothing inherently wrong with a multipronged attack on marriage discrimination. In fact, we should see this as a good sign! We are, ultimately, giving the federal courts multiple ways to eradicate an odious law. Let's just make sure these multiple ways forward do not devolve into multiple battles backward.

CONTINUED, AFTER THE JUMP...

Continue reading "Two Marriage Equality Cases in Virginia: What's Going On?" »


The Next Big Thing: Religious Exemptions to LGBT-Inclusive Equality Laws

By ARI EZRA WALDMAN

ThumbnailJames-EsseksLast week, Andy reported on a disturbing development from Republicans in Congress who should be worrying about keeping the government running rather than discriminating against gays. Idaho Republican Representative Paul Labrador, a leading arch-conservative, introduced a bill that would "protect the freedom of conscience" for those who dislike the idea of two men marrying each other. The bill would, among other things, permit federal workers to refuse to serve married same-sex couples, or same-sex couples wishing to get married, based on their own personal religious beliefs.

It is a law that would undermine every marriage equality success we have achieved over the last few years.

James Esseks (right) raised this point at this year's Lavender Law conference. After winning an award for his long service to the LGBT community and great success as LGBT Project Director at the ACLU and as one of Edie Windsor's attorneys, James asked us to pay attention to something many in the audience had not yet imagined: the possibility that the freedom of religion could destroy all of our pro-LGBT equality success. He was worried about precisely the kind of law Rep. Labrador is proposing.

CrossI am referring to religious exemptions to LGBT protections.

Some of these exemptions are eminently reasonable: A Catholic Church should not be forced by the State to perform and recognize a same-sex marriage if its doctrine opposes it.

Others are miles north of tricky and dangerous: Certain "conscience clauses" allow a county clerk to refuse to issue a marriage license to a same-sex couple in a marriage equality state if the idea of same-sex marriage offends him or her personally. Or, a "religious exception" allows a high school student to harass a gay peer if his religion tells him to oppose homosexuality.

Every time we negotiate over language on a ballot initiative or over language in a bill before a legislature for legislation protecting LGBT Americans from discrimination, we have come to reflexively include an exemption for religious observance. A little of that is ok; a lot of that threatens to do violence to the underlying purposes of the legislation. I argue that if these exemptions -- even the narrow, legitimate ones -- become too rote, too common, too enshrined in the law, then it feeds the cultural narrative that religious liberty trumps equality and fairness.

So, how do we argue that religious liberty and equality are not in conflict and that, at times, equality wins out? We cannot simply say that "I have a right to marry whom I love" because it is just as easy for someone to respond, "I have the right to follow my religious beliefs."

In other words, this isn't a question of rights. This is a question of values. The way to avoid a conflict between two rights is to deny that we are on a rights battlefield. There are two ways to do that: (1) eliminate the battle by seeking equality through the courts, not the legislative process, and (2) argue for equality differently. The first option isn't always available, so we must understand that marriage equality, employment fairness, protection from identity harassment and a host of other LGBT legal issues are about human dignity and social goods: individuals, regardless of their sexual orientation, deserve to be treated with equal dignity and, even more important, society will be better off when they are.

AFTER THE JUMP, let's see how these options help solve the religious exemption problem.

Continue reading "The Next Big Thing: Religious Exemptions to LGBT-Inclusive Equality Laws" »


Gay Juror Gets Tossed for Being Gay: What It Means for Gay Rights

By ARI EZRA WALDMAN

8238gov1abbottnorvirYesterday, we reported on an antitrust case that took an odd turn. The case may not initially strike us as the stuff of social justice: two multibillion dollar companies fighting over potentially hundreds of millions of dollars in revenue while paying multimillion dollar law firms millions of dollars to do it. But in the blink of an eye, the lawyers went from talking about "unfair competition" to talking about "antigay discrimination."

The case revolves around the price of an HIV drug and whether one company's decision to quadruple the drug's price violates unfair competition laws. At jury selection time, one of the attorneys used his right to exclude certain members from the jury pool to, ostensibly, exclude a gay person. We don't know for sure that this is what happened; these are allegations and proof is always hard to come by in these circumstances. But if the allegations are true, the act is troubling, at best: the lawyer was suggesting that a gay person cannot be impartial in a case involving an AIDS drug.

The case now asks: Can a person be excluded from a jury simply because of his or her sexual orientation? The answer's importance extends beyond the narrow confines of the jury room. It reminds me of the Prop 8 proponents' distasteful motion to vacate Judge Vaughn Walker's decision declaring Prop 8 unconstitutional because he is gay and was at the time of the case in a long term same-sex relationship.

It speaks to the concept of identity in law and the status of gay persons in modern American society. It also shows what we won -- and what we didn't -- in the Supreme Court's recent marriage equality cases.

AFTER THE JUMP, I explain what happened in the antitrust case and relate it back to major legal questions in LGBT law.

CONTINUED, AFTER THE JUMP...

Continue reading "Gay Juror Gets Tossed for Being Gay: What It Means for Gay Rights" »


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