hunter of justice

Supreme Court upholds ministerial exception to anti-discrimination laws

In a unanimous but cabined decision, the Supreme Court today in Hosanna Tabor Lutheran Church and School v. EEOC upheld what is known as the "ministerial exception" to laws against employment discrimination. The case involved a teacher in a religious school, the bulk of whose time was spent in secular instruction. The Court identified several factors for determining whether an employee qualified as a "minister," but eschewed any "rigid test." Nonetheless, it reversed a Court of Appeals decision from the Sixth Circuit which had found that the individual did not qualify for the exception.

From SCOTUSblog:

Closing the courthouse door much of the way, but not completely, to workplace bias lawsuits by church employees who act as ministers to their denominations, the Supreme Court on Wednesday unanimously gave its blessing — for the first time — to a “ministerial exception” to federal, state and local laws against virtually all forms of discrimination on the job.  The Court’s ruling, which only Justice Clarence Thomas said did not go far enough, did not order courts to throw out all such lawsuits as beyond their jurisdiction, but it left them with only a narrow inquiry before the likely order of dismissal would come down.  As soon as the denomination makes its point that it counts an employee as a “minister,” within its internal definition, that is probably the end of the case.  And the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission.

The main opinion written by Chief Justice John G. Roberts, ... dismissed as an “extreme position” the plea of EEOC to limit any “ministerial exception” solely to workers who perform “exclusively religious functions.”  While the opinion said the Court was “reluctant to adopt a rigid formula for deciding when an employee qualifies as a minister,” the opinion went on to describe some key factors that courts are to take into account in judging whether a given denomination has proved its claim to the exception.

In this particular case, involving a parochial school teacher in Redford, Mich., who spent most of her work time on non-religious duties, the Court found these to be decisive factors: that she was formally commissioned as a “minister” in the Lutheran denomination’s internal practices, that she did perform “important religious functions” in addition to her teaching of lay subjects in the classroom, and that her non-religious duties, however extensive, did not make a difference.   The Chief Justice said the Court was unsure whether any church employee would ever do exclusively religious chores.

...The Roberts opinion, with the support of eight members of the Court overall, said in a final footnote that is likely to take on added significance that the “ministerial exception” was not “a jurisdictional bar” to all such lawsuits claiming workplace bias.  Rather, the Chief Justice explained, it is “a defense on the merits.”  Thus, such lawsuits can be filed, and the worker who is suing will make a claim that he or she is the victim of discrimination, and then the denomination gets to answer that the case cannot go further because it considers the employee to be a “minister.”

The footnote concluded: “District courts have power to consider [such] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.”...

A constitution that Rick Santorum would love

Here's an example of constitutional law that Rick Santorum (and Newt Gingrich and Rick Perry) could get behind -- from Hungary.

At the beginning of this month, a new Hungarian constitution took effect, along with a new Family Protection Bill (which is ‘cardinal law’ that requires a two-thirds majority in parliament, like the constitution, in order to be changed).

Article L of the constitution defines marriage as a union between a man and a woman, while Article XV.2 excludes sexual orientation from the protected grounds of discrimination (but does have provision for protection on the basis of race and gender).

In addition, the power of constitutional courts has been curbed. Previously a law or act could be annulled by petitioning to the constitutional courts via non-governmental organizations (NGOs) or civil society organizations. That right to seek judicial review has been essentially eliminated. (Apparently the fear of activist judges extends to Hungary.)

The Family Protection Bill states: ‘Art 7. (1) When applying this law family shall mean the relationship between natural persons in an economic and emotional community that is based on a marriage between a woman and a man, or lineal descent, or family-based guardianship. (2) Lineal descent is established by way of filiation or adoption.’

The law reiterates that the life of the fetus starts with the moment of conception, that preparing for family life should be part of school curriculum, and that media services should broadcast programs that respect the institution of marriage and family. The law also states that all “media services should broadcast programs that respect the institution of marriage and family”. 

Source: Gay Star News

The week ahead: January 9, 2012

January 10 - Oral argument before the U.S. Supreme Court in FCC v Fox (No. 10-1293). The United States is appealing lower court rulings that the FCC's indecency restrictions on broadcast television and the Internet are unconstitutionally vague.  The communications at issue include images of nudity in a NYPD Blue episode and the use of phrases such as “f***ing brilliant,”  “f*** em,” and “f***ing easy” in a live broadcast.  

Also January 10 - Oral argument before the South Dakota Supreme Court in Rumpca v. Brenner, on the continuing validity of a cause of action for alienation of affection under state law. A hangover from common law, alienation of affection is a tort action that allows recovery of damages from an individual who seduced the plaintiff's (usually former) spouse and thus brought about the end of the marriage. South Dakota is one of seven states that still recognizes it as a valid claim.

Obama administration assesses status of lgbt rights in the U.S.

The State Department has filed with the United Nations the self-assessment report called for every five years in which governments describe their compliance with the International Covenant on Civil and Political Rights. In this Report of the U.S. on the ICCPR, lgbt rights issues figure prominently. As Council for Global Equality leader Julie Dorf describes, the featuring of lgbt issues signifies a sea change since the 2006 report:

In a major departure from a prior Bush Administration report, sexual orientation and gender identity issues featured prominently in this current submission, with an honest and reflective perspective on the state of LGBT rights in the United States. The report chronicles recent progress made to advance LGBT equality at the federal and state levels, including the repeal of “Don’t Ask, Don’t Tell,” the passage of hate crime legislation, support for a variety of family recognition mechanisms, and the legal recognition of gender identity discrimination in the workplace.

When the United States presented its last report to the Committee on Human Rights in 2006, the U.S. delegation tried to deny the application of longstanding sexual orientation and gender identity protections under the ICCPR, even though the Committee has recognized rights to privacy and non-discrimination for LGBT individuals since at least 1992.  During that 2006 review, a member of the UN Committee noted publicly that the U.S. delegation, which included the head of the civil rights division of the U.S. Justice Department, demonstrated a lack of awareness of the “longstanding and consistent” jurisprudence of the Committee on these issues.  The UN expert expressed his concern that by denying the existence of these rights under the ICCPR, the U.S. government might suggest that persons of diverse sexual orientations and identities are not fully entitled to the rights to life and privacy under the treaty.  In contrast, by reporting so extensively on LGBT-related concerns in this current UN report, the Obama Administration has now made an unequivocal legal statement recognizing that international law protects the human rights of all individuals, including on the basis of sexual orientation and gender identity.  Indeed, this is the legal justification for Secretary Clinton’s emphatic assertion that “human rights are gay rights and gay rights are human rights, once and for all.”

The report also identifies a number of areas in which LGBT equality has not been achieved, but where the Obama Administration has been stymied by Congress, such as with the repeal of the Defense of Marriage Act, and the enactment of federal workplace nondiscrimination legislation.

Hong Kong College of Psychiatrists de-lists homosexuality as illness

In a development that has gone unreported until a few days ago, the association of psychiatrists in Hong Kong voted late last year to adopt the official position that "homosexuality is not a mental disorder" and to state that

There is, at present, no sound scientific and clinical evidence supporting the benefits of attempts to alter sexual orientation.

A psychiatrist should provide care with no discrimination... 

According to Fridae, a gay Asian publication, this step is of critical political and policy importance for multiple reasons:

Firstly, ... I know of no other Asian psychiatric or psychological professional body that has followed the examples of their corresponding bodies in the United States, the United Kingdom, Europe or Australasia in sticking out their necks and making a statement on this issue. This seems to me to be something of a continental first.

Secondly, certainly in Hong Kong no professional organisation has issued such a statement before, so until this statement there has been no ‘official’ guidance on the matter. This has, until now, enabled the government to pretend that the issue remained subject to debate. The government has hitherto been able to adopt, therefore, a detached position of seeming to arbitrate or balance between the two sides of the LGBT rights argument, hiding as it does so beneath the liberal cloak of maintaining ‘the freedom of speech’. Because of the new statement, it will be able to evade the issue in this way no longer. 

Thirdly, activists in Hong Kong will no longer have to adduce arguments based upon foreign professional pronouncements in support of their cause. They now have a locally produced weapon with which to attack government inactivity or discrimination and to counter the public assaults of the fundamentalist right. They no longer have to prove these issues; in future they will be able to quote the College of Psychiatrists’ statement as proof that those with more professional standing than anyone likely to be in the room have ruled thus. In hide-and-precedent-bound Hong Kong, this is a powerful weapon indeed. 

So how did this unusual statement come about? The roots of the story lie back last June when the government appointed ‘reparative therapy’ advocate, psychiatrist Dr Hong Kwai-wah, to teach its social workers issues of sexual orientation. This caused a furore locally after activists from the Womens Coalition of the HKSAR and Rainbow picketed the venue. Word of this spread worldwide.

Data show that "marriage is losing market share"

To me, the most telling statistic in the following analysis of marriage data, from the Pew Foundation, is multiple paragraphs down. Although Americans marry at a later age than 50 years ago, the great majority marry at some point in their lives.  The "great" part of that statement, however, is also diminishing: from 85 per cent in 1960 to 72 per cent in 2010. Put differently, more than a quarter of Americans never marry.

Barely half of all adults in the United States—a record low—are currently married, and the median age at first marriage has never been higher for brides (26.5 years) and grooms (28.7), according to a new Pew Research Center analysis of U.S. Census data.

In 1960, 72% of all adults ages 18 and older were married [at the time of the survey]; today just 51% are. If current trends continue, the share of adults who are currently married will drop to below half within a few years. Other adult living arrangements—including cohabitation, single-person households and single parenthood—have all grown more prevalent in recent decades.

The Pew Research analysis also finds that the number of new marriages in the U.S. declined by 5% between 2009 and 2010, a sharp one-year drop that may or may not be related to the sour economy.

The United States is by no means the only nation where marriage has been losing “market share” for the past half century. The same trend has taken hold in most other advanced post-industrial societies, and these long-term declines appear to be largely unrelated to the business cycle. The declines have persisted through good economic times and bad.

In the United States, the declines have occurred among all age groups, but are most dramatic among young adults. Today, just 20% of adults ages 18 to 29 are married, compared with 59% in 1960. Over the course of the past 50 years, the median age at first marriage has risen by about six years for both men and women.

It is not yet known whether today’s young adults are abandoning marriage or merely delaying it. Even at a time when barely half of the adult population is married, a much higher share— 72%—have been married at least once. However, this “ever married” share is down from 85% in 1960.

Public attitudes about the institution of marriage are mixed. Nearly four-in-ten Americans say marriage is becoming obsolete, according to a Pew Research survey in 2010.¹ Yet the same survey found that most people who have never married (61%) would like to do so someday.

It is beyond the scope of this analysis to explain why marriage has declined, except to note that it has declined far less for adults with college educations than among the less educated. Some of the increase in the median age at first marriage over the long term can be explained by the rising share of young adults enrolled in college, who have tended to marry later in life; recently, there are indications that adults who are not college graduates also are marrying later.² Fallout from the Great Recession may be a factor in the recent decrease in newlyweds, although the linkage between marriage rates and economic hard times is not entirely clear.³

Divorce is a factor in diminishing the share of adults who are currently married compared with 50 years ago. But divorce rates have leveled off in the past two decades after climbing through the 1960s and 1970s, so divorce plays less of a role than it used to.⁴

What is clear is that a similar delay and decline of marriage is occurring in other developed nations, especially those in Europe, and in some cases in less developed nations. According to a recent United Nations report that analyzed marriage trends in the context of their impact on fertility,⁵ female age at first marriage rose from the 1970s to the 2000s in 75 of 77 countries included in its analysis. The increase was most marked in developed nations—and especially notable in those countries because the age at first marriage had been declining until the 1970s.

On another measure, the share of women ever married by ages 45-49, there were declines in all developed nations between the 1990s and the 2000s. According to the U.N. report, this was “due in part to an increasing acceptance of consensual [cohabiting] unions as a replacement for marital unions.”

The rising star from 2011: Frank Mugisha

I doubt that there are any lgbt rights leaders in the United States who literally put their lives on the line, day after day, to fight for justice. So it's difficult to overstate the courage of Frank Mugisha, a leader of the political organization Sexual Minorities Uganda and of Icebreakers Uganda, a group offers counseling and suicide-prevention services. Mugisha has been imprisoned by the government in Uganda and targeted for death by the same group that encouraged the murder of David Kato.

Last month, after receiving the Robert F. Kennedy Center for Justice & Human Rights' annual Human Rights Award, Mugisha published a powerful op-ed in the NY Times, arguing that "homophobia - not homosexuality - is the toxic import" to Africa, and calling on Americans of color to join the struggle to end brutality against lgbt people in Africa.

Granted, I am way jumping the gun here - Mugisha is only 29 - but I see a Nobel in his future.

Following is an interview with Mugisha from The Root:

The Root: The Robert F. Kennedy Human Rights Award recognizes individuals who stand up, at great personal risk, to oppression in the nonviolent pursuit of human rights. Are you afraid for your safety, or even for your life?

Frank Mugisha: I fear. I fear for what will happen to me from the community, from people around me, from my friends. But my biggest fear is not coming from the government because, as an activist, I have a little bit of protection. My biggest fear is from the everyday people on the street. From my neighbors. Because I don't have any security, I could be attacked and killed like my friend [David Kato] was.

TR: What is life like every day for gays, lesbians and other sexual minorities in Uganda?

FM: There are different categories. If you are an activist, then you have to calculate and decide, "Should I take that street, should I go to that shopping mall, should I do this today, even?" Because you don't know where the harassment will come from.

Then you have an openly gay man who's not an activist -- the fear is as he's doing his everyday work. He has to ask, is he going to be harassed, is he going to be beaten, is he going to be a target?

Then you have people who are not out, but they are gay. Their fear is the media. Their family finding out about them, the media finding out about them. Their workplaces finding out about them. They fear that they could be fired, that they could be thrown out of their homes.

TR: You have discussed the way the media fuel homophobia by outing people. What else is driving homophobia in Uganda?

FM: Culture. People think homosexuality is not African, that [it] is from somewhere else, from the West. People believe the Bible has been very clear that homosexuality is a sin, and a big percentage of Uganda -- 80 percent -- is Christian, so that has also greatly increased homophobia.

But I've had a problem both with people racializing homophobia and also with saying homosexuality is imported. I think [it] is very important to recognize that there is homophobia in the United States, in Europe and in Africa. The question should be, what has made it increase?

When I was growing up, I knew people who lived together, man and man, as if they were married, and no one harassed them, no one arrested them. But today we are seeing this kind of new wave of religion that has come in and said the homosexuals you know are bad people.

TR: What role have U.S. evangelicals played in that new wave of religion?

FM: They talk about abortion; they talk about family values and all that. But in Uganda they've identified homosexuality as the issue they can pick on. They pick on so many issues, but they came to Uganda because Uganda is so Christian, and Ugandans are going to listen when they say homosexuality is a sin.

TR: You've talked about how pleased you were to hear from TransAfrica and learn that you were not alone in the fight to protect sexual minorities in Uganda. What can individual African-Americans do to communicate that message and show their support? 

FM: Work with us. I've done amazing work with TransAfrica. Other organizations can work directly with us. People can support progressive [nongovernmental organizations] and NGOs that work on human rights. Let people give them support and moral support. It will give us courage.

Updates from the end of 2011

Here's what we've missed from the last two weeks:

 It's a Navy tradition that when a ship returns to home port, there is a lottery to pick the sailor who gets to be the first to kiss a loved one. Petty Officer 2d Class Marissa Gaeta won the prize on December 22, and when her ship docked in Virginia Beach, she got to kiss her girlfriend Citlalic Snell. The crowd cheered. Another example of the disastrously horrible effect on morale and unit cohesion of repealing Don't Ask Don't Tell.  Not.

In Keeton v. Anderson-Wiley, the Eleventh Circuit Court of Appeals ruled that Augusta State University could require a remediation course for a graduate student in its counseling program who wanted to recommend conversion therapy for gay patients. The student had argued that her religious freedom was violated, but the court found that the university's actions were neutral and a legitimate requirement in light of the concern that Keeton would violate ethical codes governing counselors during her counseling practium, which involved actual patients.

The death of John Lawrence, one of the men who resisted prosecution for gay sex in a case that went to the Supreme Court and produced a ruling that criminal laws prohibiting (most) consensual sex are unconstitutional. Sadly, his co-defendant Tyron Garner had died earlier. 

Michigan Governor Rick Snyder signed into law a measure prohibiting state government agencies from offering benefits to unmarried partners of employees. It is reportedly unclear whether the new law applies to public universities in the state, because universities have some degree of autonomy under state law.

Debates arose in Zimbabwe over whether drafters of the new constitution should include a provision guaranteeing the rights of lgbt people.

The Victory Institute announced that 48 out of the 50 states have at least one openly gay elected official (to answer your question: Alaska and South Dakota).

Welcome to 2012...

Hasta luega

Chanukah begins tonight, Christmas is only a few days away - we're talking serious kick back time. Barring an unforeseen and unlikely development in sexuality and gender law, ye olde blogger is signing off until 2012.

Merry holidays to all!

Croatia to join EU, but with warning about anti-gay violence

From UK Gay News:

The European Parliament gave the ‘green light’ to the accession of Croatia to the European Union – but with several caveats including one on gay, lesbian and transgender rights. MEPs adopted the accession resolution by a 564 to 38 margin.  It clears the way for Croatia to become the 28^th member country of the European Union, possibly as early as July 2013.

Among the caveats, the text of the resolution calls on Croatia to combat homophobia and prevent homophobic violence.  The Parliament’s call follows this year’s Pride march in Split, which was subject to violent attacks.

In the resolution, the European Parliament says it “is deeply concerned by the violence against participants in the LGBT pride march in Split on 11 June 2011 and the inability of the Croatian authorities to protect the participants”. Additionally, the Parliament “urges the Croatian authorities fully to investigate and prosecute the crimes committed and to develop strategies for preventing similar incidents in the future”, and “calls on the Croatian authorities quickly to adopt and implement an action plan against homophobia”...

Memo to students: Revise your seminar paper over the break, submit to Dukeminier compettion

Each year, the Williams Institute conducts a competition for the best law student paper on a topic related to sexual orientation or gender identity.  The winner is published in the annual Dukeminier Journal and receives a $1,000 prize. Deadline is January 16, 2012. Details here.

Map of cousin-cousin marriage states

Kudos to Mac McClelland at Mother Jones for this fabulous map of where cousins can legally marry (click on image for sharper focus):

Chief of DoJ division argues the unconstitutionality of DoMA in Golinski case

Offering symbolic as well as substantive support, Assistant Attorney General Tony West, the head of the Civil Division at the Justice Department, appeared in court in San Francisco yesterday to present the Department's arguments as to why DoMA is unconstitutional, made to an apparently sympathetic judge. Here is Chris Geidner's report:

According to the Department of Justice, this is only the second time that West has appeared in court as assistant attorney general to argue a case. The other time, DOJ spokeswoman Nana Efua Embil told Metro Weekly, "was for a national security case." Prior to joining the Obama administration in 2009, West had been a partner at Morrison & Foerster in the firm's San Francisco office. Earlier in his time at DOJ, West was criticized for having signed his name to an administration brief filed in June 2009 that defended DOMA by arguing, among other points, that "DOMA does not discriminate against homosexuals in the provision of federal benefits."...

[Tara] Borelli [of Lambda Legal, counsel for Karen Golinski] referenced the historic nature of the hearing, pointing out, "This is the first time that the lawyers BLAG has hired [to defend DOMA] have appeared in court. This is the first time DOJ has appeared ... to argue" its position that heightened scrutiny should apply to sexual orientation classifications and that, under that standard, DOMA should be found unconstitutional.

Justice Margaret Marshall to teach at Harvard Law, which misspells names of important cases

Margaret Marshall, retired Chief Justice of the Supreme Judicial Court of Massachusetts, will become a lecturer and research fellow at Harvard Law School. Justice Marshall is the author of that court's opinion in Goodridge v. Department of Public Health.  That's Goodridge. From the school's press release:

During her 14 years on the Court before stepping down in December 2010, she wrote more than 200 opinions, including the landmark opinion in Goodrich v. Department of Public Health in 2003, legalizing same-sex marriage in Massachusetts. 

Couldn't resist.

Sure am glad I'm not defending DoMA today

At 9 a.m. PST on Friday, U.S. District Judge Jeffrey White will hear oral arguments on the constitutionality of DoMA after having asked that the lawyers spend their 45 minutes of alloted time addressing two pages of specific questions rather than rehashing what is in their briefs. From what's on that list, it looks like Judge White is going to give the DoMA defenders a rocky ride, with lots of reminders of the irrationality of their contentions.

At issue is defendant's motion to dismiss and plaintiff's motion for summary judgment in the case brought by federal employee Karen Golinski, seeking to add her spouse to the federal employee health insurance plan. In line with the Justice Department's policy of enforcing DoMA but not defending its constitutionality, the DoMA rationale will be argued by lawyers hired by Congressional Republicans. 

Examples of the judge's questions:

• Why should the court not subject DOMA to heightened scrutiny for impacting marriage, as a basic fundamental freedom and an exercise of personal decision-making, protected by the right of privacy?
• What is the authority for the proposition that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?
• How does BLAG [the entity defending DoMA] distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?

The list goes on from there. Judge White even presses BLAG (which stands for Bipartisan Legal Advisory Group, a statutory entity that is composed of three members from the majority party in the House and two from the minority party) on whether it is legitimately constituted. One query to be answered: "Does BLAG have the support - and funding for the increasing cost of defending DOMA - from a majority of Congress or just from the House of Representatives?"

Should be fun for the plaintiffs.