Discrimination Hub




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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Indiana Woman Claims Water Park Kicked Her Out Because She's Gay: VIDEO

Jill sweeney

An Indiana woman says she was singled out because of her sexual orientation when she was asked to leave a water park during her bachelorette party.

Jill Sweeney said she was forced to leave Michigan Adventure in Muskegon because she was wearing men’s swimming trunks and a tank top, reports The Indy Channel.

The park’s website specifies that "all participants [must] be in swim suits. Street clothes (athletic clothing, nylon shorts, jean shorts, etc.) are not permitted. Metal snaps, buttons, rivets, or zippers are not allowed."

However, Sweeney says she was wearing “men's bathing suit trunks, a sports bra...with no wires and a tank top,” that there is no reference on the website to gender-specific clothing and that other people at the park were wearing street clothes.

Speaking to ABC 57, the park’s manager said that Sweeney was wearing prohibited street clothes.

Watch The Indy Channel's report, AFTER THE JUMP...

 

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

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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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Chris Kluwe Outraged Over Light Punishment for Homophobic Vikings Coach, Still Plans to Sue: VIDEO

C_kluwe

Former Minnesota Vikings punter Chris Kluwe is outraged over the punishment meted out by the team to special teams coach Mike Priefer following the results of an investigation in to Kluwe's claims of homophobic remarks and anti-gay bias by the team.

Priefer was suspended for 3 games and ordered to make a donation to LGBT organizations.

Kluwe spoke to KMSP about the investigation.

Said Kluwe:

"Players who get caught smoking weed or DUI get 4 games, and you're telling me the guy who made a comment like 'let's round up all the gays put them on an island nuke it till it glows' -- he's only going to get a slap on the wrist? ... I think he's probably sorry that all of this ever happened. I don't think he's truly sorry because in the report he kind of backs his way and says yeah, I kind of said it...The NFL is a league where you can get redemption for killing someone, for beating your wife in an elevator, for driving drunk, for a whole variety of things but when you speak out for civil rights, that's the one thing you cannot get redeemed for."

Kluwe says he still plans to sue the organization and his attorney is still requesting the full 150-page investigation.

Watch, AFTER THE JUMP...

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Details on the Historic Executive Order Barring LGBT Discrimination to be Signed by President Obama This Morning

Here are details from the White House on the executive order President Obama will be signing this morning barring LGBT discrimination by federal contractors:

2_obamaExecutive Order 11246, issued by President Lyndon B. Johnson, prohibits federal contractors from discriminating “against any employee or applicant for employment because of race, color, religion, sex, or national origin.” President Obama’s Executive Order will add sexual orientation and gender identity to the list of protected categories.

President Obama’s Executive Order does not allow for any exemption beyond the one added by Executive Order 13279, issued by President George W. Bush, which permits religiously affiliated contractors to favor individuals of a particular religion when making employment decisions, by specifying that Executive Order 11246, “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.” In addition, under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit.

Executive Order 11246 governs only federal contractors and federally-assisted construction contractors and subcontractors who do over $10,000 in Government business in one year. It does not affect grants and President Obama’s Executive Order does not impact the administration of federal grants. The Order is administered and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). As part of these duties, OFCCP conducts compliance reviews, receives complaints from individuals who believe they have been discriminated against, and provides technical assistance to contractors regarding their contractual obligations. More information can be found at www.dol.gov/ofccp.

Executive Order 11478, issued by President Nixon, bars discrimination against federal employees on the basis of race, color, religion, sex, national origin, disability, and age, and was amended by Executive Order 13087, issued by President Clinton, to include sexual orientation.

President Obama’s Executive Order will add gender identity to the list of protected categories. The Equal Employment Opportunity Commission and other federal agencies already apply Title VII of the Civil Rights Act of 1964 to protect federal employees from discrimination on the basis of gender identity as a form of sex discrimination. The President believes it is important to explicitly prohibit – in both Executive Action and in legislation – discrimination on the basis of gender identity.


President Obama to Sign LGBT Anti-Discrimination Executive Order on Monday

President Obama plans to sign the promised executive order barring anti-LGBT discrimination by federal contractors on Monday, the Washington Blade reports:

2_obamaIn a conference call with reporters on Friday, senior administration officials, who spoke on condition of anonymity, said Obama plans to amend existing executive orders barring discrimination against workers to include protections on the basis of sexual orientation and gender identity. Obama intends to amend Executive Order 11246, which prohibits federal contractors from discriminating on the basis of race, color, religion, sex, or national origin, to add the categories of sexual orientation and gender identity.

Additionally, Obama plans to amend Executive Order 11478, which prohibits discrimination in the federal civilian workplace — and was already amended by President Clinton to include sexual orientation — to include gender identity.

But the amendments also won’t repeal President George W. Bush’s amendment to EO 11246, which allows religious-affiliated federal contractors to discriminate on the basis of religion, officials said.

The order is expected to take effect early next year.

The Huffington Post adds:

To the relief of the LGBT community, there is no sweeping religious exemption in the executive order. Obama is simply adding the categories of sexual orientation and gender identity to an existing executive order that protects employees of federal contractors from discrimination based on race, color, religion, sex or national origin. President George W. Bush amended that executive order in 2002 to allow religiously affiliated federal contractors to prioritize hiring employees of their particular religion, however, and Obama is keeping that language intact.

Rea Carey, Executive Director, National Gay and Lesbian Task Force, released a statement reacting to the announcement:

"This decision is good for LGBT people, good for our economy and good for America. It also speaks volumes about President Obama’s resolve to end discrimination in all its guises. Millions more LGBT workers and their families will have the employment protections and economic security they need and deserve. Many organizations have worked extremely hard for this day and they all deserve thanks for this successful effort. We appreciate President Obama treating LGBT people equally with other protected groups. Thank you Mr. President for once again showing leadership and standing firm on your commitment to LGBT people and their families."


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