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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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Connecticut Ruling Could Lead To Retroactive Marriage Rights For Same-Sex Couples

A July 16th Connecticut Supreme Court ruling is adding to the debate on whether same-sex marriage rights should be applied retroactively, reports ABC News.

Charlotte Stacey and Margaret MullerThe case involved Margaret Mueller and Charlotte Stacey, who had a civil union in Connecticut in 2005 and got married in Massachusetts in 2008 after 23 years together, shortly before Connecticut approved gay marriage.

Mueller was diagnosed with ovarian cancer in 2001 but the couple learned in 2005 that the diagnosis was wrong and Mueller actually had appendix cancer. Stacey said her wife’s death could have been prevented if the original diagnosis had been correct.

The Connecticut Supreme Court ruled unanimously that Stacey may sue for medical malpractice over the loss of her wife's companionship and income, even though that right was limited to heterosexual married couples at the time of their marriage.

Lower courts had ruled that Stacey could not sue because only married couples had that right and Stacey and Mueller did not marry until 2008.

Although no states that allow same-sex marriage have made their laws retroactive, many believe that inheritance laws and other benefits that had been available only to heterosexual married couples should be extended to same-sex partners.

While the Connecticut court did not make its 2008 same-sex marriage ruling retroactive, it expanded common law to give gay people the right to sue over the death of a partner.

Speaking to Associated Press, Ben Klein, a lawyer for Gay & Lesbian Advocates & Defenders in Boston, said:

"Because there was a time when many same-sex couples couldn't marry, they were subjected to a whole range of unfair treatment under the law and this decision is really a great step forward. We have these remnants from the past that the court, at least in this one instance, has rectified."

However, some groups that oppose same-sex marriage are also against making marriage rights retroactive.  Peter Sprigg, senior fellow for policy studies at the Family Research Council, said "Connecticut has no obligation to pay reparations to homosexuals for having maintained the natural definition of marriage until 2008."

Same-sex marriage is now legal in 19 states and the District of Columbia. Gay marriage bans that have been overturned in states including Utah continue to make their way through the courts.


Salem Mayor Writes Awesome Defense Of City's Decision To End Contract With Anti-Gay College - VIDEO

Kim driscoll mayor salem

On Wednesday we reported the decision by the City of Salem, Massachusetts, to kill a contract with anti-gay Gordon College.

Under the contract, the college operated the city’s Old Town Hall.  College president Michael Lindsay was one of more than 140 signees of a letter to Barack Obama seeking exemptions from a pending executive order which aims to prevent work discrimination by federally funded organizations. Letter by Kimberly Driscoll

Speaking to The Christian Post, Salem Mayor Kimberley Driscoll said that Gordon College's "behavioral standards" policy, which specifically forbids "homosexual behavior," "is in violation of the LGBT-inclusive non-discrimination ordinance that was unanimously adopted by the Salem City Council earlier this year.”

Driscoll has since published an awesome letter defending Salem’s inclusive policies and calling out attacks made by right wing blogs and websites.  Specifically citing wingnut Glenn Beck’s The Blaze, Driscoll writes that “this has resulted in a number of phones calls being place to my office from people outside of Massachusetts who have expressed some patently offensive views regarding LGBT individuals.”

In response to the barrage of phone calls, Driscoll goes on to say “we are keeping a tally of these phone calls and for each one we receive I will be making a donation of $5 to nAGLY [North Shore Alliance of Gay, Lesbian, Bisexual and Transgender Youth], in support of your good work to create, sustain, and advocate for the policies and services that support youth here on the North Shore.”

Driscoll also asks that individuals make contributions to nAGLy as a response to “the persistence of those who would deny LGBT citizens their equal rights.” 

Watch a video introducing nAGLY, AFTER THE JUMP...

 

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Dublin Supports Motion in Favor Of Same-Sex Marriage: VIDEO

Fintan warfield

A motion supporting same-sex marriage was passed on June 14th in South County Dublin, Ireland.

The vote comes following last month's announcement by the Irish government that under an employment law amendment to be passed shortly, schools will no longer be allowed to fire teachers based on family status or sexual orientation.

Openly gay mayor of South County Dublin Councillor Fintan Warfield received support for his motion to extend marriage rights to include gay and lesbian couples in next year's referendum on marriage equality, reports Pink News.

The motion was passed by 34 votes to 1.

After the vote, Warfield said:

“The LGBT community is still marginalised in the Ireland of today and we must work towards changing that. Support for marriage equality and for the passing of the referendum next spring is pivotal. This referendum is about...the LGBT community being afforded the same rights as their heterosexual counterparts. This referendum is about love. It is about two people sharing in the ups and downs of life."

Civil partnerships were introduced in Ireland in 2011.

Watch Fintan Warfield speak in favor of same-sex marriage at the Sinn Féin Ard Fheis last year, 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. 

Continue reading "Hobby Lobby and the Democrats Who Want to Fix It" »


Singapore Court Of Appeals Reconsiders Ban On Gay Sex - VIDEO

Pink dot com singapore

The Singapore Court of Appeals yesterday heard arguments challenging the country’s 76-year-old ban on gay sex, reports Bloomberg.

In June, police asked attendees at Singapore's Pride rally Pink Dot to avoid comments on race and religion after Muslim and Christian groups called on followers to oppose the event.

In 2007, although provisions that made heterosexual oral and anal sex a crime were repealed, lawmakers agreed to uphold the ban on gay sex.  While the government says that the law has not been enforced since the 1990s, figures from the Home Affairs Ministry show that there were a total of 185 people convicted under section 377A from 1997 to 2006.

Lawyer Deborah Barker said that the 1938 law should either be declared void or modified to exclude sex between consenting adults in private.

Speaking to Bloomberg, Law Minister K. Shanmugam said that the majority of people support the legal framework as it stands. A survey commissioned by the government showed that about 47% of those polled rejected “gay lifestyles,” 26% percent were receptive and 27 percent neutral.

Last month, Proposition 8 spokespeople Jennifer Roback Mors and Pastor Jim Garlow spoke at a Singapore conference whose head is fighting to retain anti-gay laws. 

Watch Pink Dot's stirring report on this year's Pride rally in Singapore, AFTER THE JUMP...

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