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.”...

Thoughts on gay and Muslim in Indonesia

The following column by Abdul Rohman (photo), a lecturer in Communication Studies at Indonesian Islamic University and a Kerr Fellow in the Public Administration program at Florida State University, which appeared in the Jakarta Post, provides an example of the kind of discourse being triggered by the Clinton speech in Geneva: 

Insisting that same-sex relations are actually compatible with religious beliefs would almost certainly challenge mainstream perspectives. Within the context of Indonesia, as the country with the largest Islamic population, you cannot be a gay or lesbian, for example, and a good Muslim at the same time because most Islamic teaching bans same-sex practices. 

I do not attempt to justify homosexuality or promote gay culture but I call for a dialogue on religions and sexual preferences.

Sexual identity and religion are sensitive and contradictory issues in Indonesia. Only a few are willing to discuss them open-mindedly. Most are likely to say that having a different sexual preference is a perversion of religion and a betrayal of human nature or social norms. Luckily, we still have various media able to look at the issue through a different lens. 

We may recall a story about a transvestite who was jailed because she married a man whom she loved. Previously, the court had ordered her to become the “real man” she was naturally intended to be. Another example is a transgendered person whose access to healthcare was denied because their gender identity was not recognized administratively. 

Coming out as a homosexual in public can potentially rob you of your job, reputation, social life and lead to alienation from your family. It is as if letting people know that you have a different sexual preference from the majority is taboo and violates nature. Therefore, many gays opt to live in the closet and in some circumstances commit suicide. This shows how being sexually different from the mainstream culture makes individuals vulnerable. 

Being a Muslim and gay at the same time sounds incompatible. Without attempting to make subjective justification based on religious texts, however, both aspects can coexist if we look at the idea that serving God has nothing to do with sexual preference. In many verses of the Koran there is no explicit sentence saying that someone cannot serve God if he or she practices same-sex relationships. Also, there are competing ideas about whether the people of Lot were punished because of their homosexuality or their negligence in serving God. 

Within a more humanistic framework, celebrating beliefs and expressing sexual identity are part of our human rights and for that reason the government should recognize them as they are explicitly mentioned in international documents.  Nonetheless, for particular reasons the government has remained ignorant and let righteous vigilante groups exercise violence against sexual preference discourse. 

The week ahead: December 5, 2011

Monday, December 5 - Trial begins in Orozco v. Attorney General of Belize, the challenge to the law criminalizing homosexual conduct in Belize.

Tuesday, December 6 - UPDATE: The Fourth Circuit announced that oral argument would be delayed in this case; no new date was set. Oral argument before the Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, in which the District Court ruled that a city ordinance violated the First Amendment rights of anti-abortion counseling centers by requiring them to post a sign in the reception area informing patients that they did not refer for abortion services. 768 F. Supp.2d 804 (D.Md. 2011). 

Also December 6 - Deadline for proposals for the Law and Society Conference to be held June 5-8, 2012 in Honolulu.

Thursday, December 8 -Two oral arguments before Ninth Circuit, first on whether the videotapes of the trial in the Perry case, challenging the constitutionality of Prop 8, should be released; and immediately following, on whether Judge Vaughn Walker should have recused himself from trying the case because he has a same-sex partner and therefore would have the option to marry if Prop 8 were found to be unconstitutional.

Also December 8 - Oral argument in Choice Inc. of Texas v. Greenstein. Despite the Texas name of the plaintiff, the case involves a Louisiana law allowing state officials to cite abortion clinics for regulatory violations and then immediately close them, without granting the opportunity to correct any deficiencies, unlike the process for other medical facilities. The District Court dismissed the complaint on grounds of ripeness. 781 F. Supp.2d 313 (M.D.La. 2011). Judges James Dennis, Edith Brown Clement and Priscilla Owen comprise the  panel who will hear the argument.

Also December 8 - Deadline for paper proposals for Feminist Legal Theory Workshop on Privatization and Social Responsibility to be held February 17-18, 2012 at Emory Law School.

Keeton counseling case argued in 11th Circuit

From the Atlanta Journal Constitution:

An attorney for a graduate school counseling student told federal judges in Atlanta on Tuesday that the student's First Amendment rights were violated when professors at a Georgia university sought to punish her for her biblical views on gay rights.

Augusta State University put Jennifer Keeton on academic probation for saying it would be hard for her to work with gay clients, and threatened to expel her unless she attended events like Augusta's gay pride parade, Keeton's attorney Jeff Shafer told the 11th U.S. Circuit Court of Appeals. "She was told, 'You don't have to believe it. You just have to say you do,'" Shafer said.

Augusta State University countered that the counseling program would risk its accreditation if it didn't hold Keeton to a code of ethics. The school has a duty to require students to counsel all segments of the community, including those who are gay or transgender, it said in court papers.

Keeton told other students that she was interested in practicing conversion therapy — where a therapist tries to "cure" a person from being homosexual — after graduation, said Cristina Correia with the state Attorney General's office. Correia said Keeton also told her professors she would tell any clients who said they were gay that homosexuality is morally wrong.

University faculty were concerned that Keeton was scheduled to practice counseling in middle and high schools as part of her degree program and could possibly harm young students with her views, Correia said. "The university has a responsibility when putting students in a practicum and graduating them," Correia said. "When you have that kind of evidence, the faculty could not, under their ethical standards, put that student in a clinical setting without further remediation."

Keeton, who said she's a devout Christian "committed to the truth of the Bible," enrolled in the school's counselor education program in fall 2009 and soon began discussing her views that sexual behavior is a personal choice and that gender identity isn't subject to change.

Faculty members were alarmed after she wrote in a term paper that it would be hard with her to work with gay clients. The school told her that her language was unethical according to guidelines from the American Counseling Association, and she was put on probation and warned she could be expelled.

She was asked in May 2010 to agree to a remediation plan that would require her to attend sensitivity training, read counseling journals and mix with gays at events like the city's gay pride parade. Keeton refused to comply with the plan, which she said in court papers would require her to "tell clients wanting to hear it that homosexual sex is moral."

She filed a federal lawsuit claiming the school wanted to expel her because she "holds Christian ethical convictions" on human sexuality and gender identity. Attorneys for both sides declined comment after the hearing because the case is under a gag order by the court.

 

LGBT cases before 11th Circuit draw majority liberal panel of judges

Judges Rosemary Barkett, Phyllis Kravitch, and William Pryor will decide two lgbt-related cases to be argued this week before the 11th Circuit Court of Appeals. Barkett and Kravitch (who is on senior status) are two of the liberal members of what is usually a conservative circuit; they were appointed by Presidents Clinton and Carter, respectively. Pryor, considered to be a strong conservative, was appointed by President George W. Bush.

On Thursday, they will hear arguments by the Georgia legislature that its firing of a transgender employee did not constitute sex discrimination. This will follow tomorrow's appeal by a self-proclaimed Christian who was ordered by Augusta State University either to provide non-judgmental counseling to gay clients or participate in a remediation plan. Lambda Legal attorney Greg Nevins (photo) will seek affirmance of the lower court decision in Glenn v. Brumby, the trans case, which granted judgment for the plaintiff. In the other case, the former ASU graduate student is being represented by the Alliance Defense Fund, which makes regular appearances on the opposite side of lgbt rights advocates.

The panel before whom they will argue presents a study in contrasts.

Judge Barkett is well known for her spirited arguments in dissent in both the panel decision and the denial of an en banc rehearing in Lofton v. Department of Children's Services, a challenge to the Florida law that prohibited adoption by lesbians and gay men. Barkett argued that the anti-gay adoption rule was unconstitutional if one followed the Supreme Court's decisions in Lawrence v. Texas and Romer v. Evans. (Florida has since abandoned its defense of the law.)

Judge Kravitch was a trailblazer for women in the judiciary. Only the third woman ever appointed to a U.S. Court of Appeals, she received the ABA's Margaret Brent Woman Lawyer of Achievement Award and an award for service to the profession from her alma mater, the University of Pennsylvania Law School. She began her career by joining her father's practice in Savannah, when no major firms would hire a woman. She later litigated important local civil rights cases.

Judge Pryor became Attorney General of Alabama in 1997 and served until he joined the 11th Circuit. Although nominated in 2003, Senate Democrats filibustered his appointment until President George W. Bush gave him a recess appointment in 2004. The Senate confirmed him the following year as part of a compromise on judicial appointments reached by the "Gang of 14." During his confirmation hearing, he reaffirmed his belief that Roe v. Wade was "the worst abomination of constitutional law in our history." 

Although these three judges will announce the first decision in the two cases, it might not be the last. A decision from the panel in any U.S. Court of Appeals case may be rescinded if the full Circuit grants a rehearing en banc.  The case is then re-argued before all the judges who are members of that Circuit.

The week ahead: November 28, 2011

[ADDED] Tuesday, November 29 - Oral argument in the 11th Circuit in Keeton v. Anderson-Wiley, in which Jennifer Keeton, a graduate student in counseling at Augusta (GA) State University, is challenging the ruling of a District Court that ASU was justified in requiring her to complete a remediation plan after she refused to counsel gay clients.

Thursday, December 1 - Oral argument in the 11th Circuit in Glenn v. Brumby, in which the Georgia state legislature has appealed a ruling that it discriminated against Vandy Beth Glenn on the basis of sex. Glenn, an MTF transperson, was fired from her job as an editor and proofreader. 

Also December 1 - The final set of briefs is due from the defendants in Gill v. OPM, one of the challenges to the constitutionality of Section 3 of DoMA. This closes the briefing; the parties await scheduling of oral argument. 

Friday, December 2 - Briefs in Perry v. Brown are due to the Ninth Circuit on the issue of how the court should respond to the advisory decision from the California Supreme Court that the Prop 8 proponents should have standing to defend it in the litigation.

Anti-gay lobbyist tries to hide moralism with "pro-business" arguments

Earlier this year, the Tennessee state legislature passed a bill prohibiting local governments from requiring businesses which had contracts with them to agree not to discriminate based on sexual orientation or gender identity. Its purpose was to torpedo a Nashville city ordinance adopted in April, which it did. The Tennessean has now published the fascinating back story behind the conservatives' campaign to kill anti-discrimination protections. The article is based on documents obtained in discovery in a lawsuit filed by proponents of the anti-discrimination law, represented by Abby Rubenfeld (photo).

It is surely a sign of the times that the successful lobbyist for the Tennessee Family Action Council used a strategy of not highlighting religious or moral objections to homosexuality when doing outreach to members of the state legislature. Instead, he painted the blockage of equal employment rights as pro-business, a gambit that paid off even though a number of businesses supported the Nashville ordinance and opposed the state law invalidating it.

Increasingly, an open and supportive environment for lgbt people is seen as going hand in glove with economic development. Not exactly a noble path to equal treatment under law, but it drives a wedge into conservative states when cities like Nashville, the Research Triangle in North Carolina, and Birmingham, Alabama start attracting knowledge industries in significant numbers.

From The Tennessean: 

The chief lobbyist for a state law that invalidated Metro protections for gay and transgendered individuals feared his moral thoughts on the measure would become public and distract from the economic argument he used to sell the bill, documents reveal.

Emails written by David Fowler, president of the Family Action Council of Tennessee and a former state senator, are included in thousands of pages of correspondence lawmakers submitted as part of a court battle over the constitutionality of the state law. The pending lawsuit alleges the law was motivated by prejudice rather than the economic concerns that were publicly argued.

The law dubbed the Equal Access to Intrastate Commerce Act nullified an ordinance the Metro Council passed in April requiring city contractors to pledge not to discriminate based on sexual orientation or gender identity. The ordinance extended protections already given to employees based on age, race, sex, color, national origin and disability, and it required contractors to follow a nondiscrimination policy Metro adopted for its own employees in 2009...

“Metro Council here in Nashville is considering requiring private businesses that do business with the city and those who lease property from the city have an employment policy to protect homosexual conduct and cross-dressing, etc.,” Fowler wrote in a Jan. 26 email to individuals including state Sen. Jack Johnson, R-Franklin. Fowler described how he hoped to persuade the Nashville Area Chamber of Commerce to oppose Metro’s planned ordinance. “Metro passed its homosexual ordinance for Metro employees by 24 to 15 in 2009 so the Council is clearly liberal.

“Please do NOT pass this on to anyone who you think might in the slightest pass it to anyone else,” Fowler continued later in the email. “We’ve learned that some folks we thought were friends cannot be trusted and we don’t need the Chamber backing off because it starts to appear to be too much of a Christian, right wing, homosexual issue rather than a business/economic issue.”

Catholic Bishops ratchet up fight against gay rights, birth control, abortion

True to their word, the National Conference of Catholic Bishops has launched a new in-house advocacy group devoted to defending that faith's position on a trio of sexuality-related issues: gay rights, birth control and abortion. In a related move, several Catholic dioceses in Illinois announced that they would stop providing adoption services rather than serve same-sex couples on an equal basis.

From today's N Y Times:

The nation’s Roman Catholic bishops opened a new front in their fight against abortion and same-sex marriage on Monday, recasting their opposition as a struggle for “religious liberty” against a government and a culture that are infringing on the church’s rights.

The bishops have expressed increasing exasperation as more states have legalized same-sex marriage, and the Justice Department has refused to go to bat for the Defense of Marriage Act, legislation that established the definition of marriage as between a man and a woman.

“We see in our culture a drive to neuter religion,” Archbishop Timothy M. Dolan of New York, president of the bishops conference, said in a news conference Monday at the bishops’ annual meeting in Baltimore. He added that “well-financed, well-oiled sectors” were trying “to push religion back into the sacristy.”...

... The bishops issue guidelines for Catholic voters every election season, a document known as “Forming Consciences for Faithful Citizenship,” which is distributed in many parishes. But the bishops were informed at their meeting on Monday that a recent study commissioned by Fordham University in New York found that only 16 percent of Catholics had heard of the document, and only 3 percent had read it.

Nevertheless, the bishops remain a forceful political lobby, powerful enough to nearly derail the president’s health care overhaul two years ago over their concerns about financing for abortion. Last week, the White House, cognizant of the bishops’ increasing ire, invited Archbishop Dolan to a private meeting with President Obama, their second. Archbishop Dolan said they talked about the religious liberty issue, among others.

“I found the president of the United States to be very open to the sensitivities of the Catholic community,” Archbishop Dolan said in the news conference. “I left there feeling a bit more at peace about this issue than when I entered.”

More criticism of Cameron: Don't cut aid, switch it

British Prime Minister Cameron's warning to Commonwealth nations that foreign aid from the UK would be cut unless anti-gay laws changed may have been well intentioned, but its hamhandedness has generated repudiation by both conservative governments and human rights activists. Progressive African human rights organizations - including lgbt and AIDS service groups - and individual leaders have signed a petition stating in part:

Donor sanctions are by their nature coercive and reinforce the disproportionate power dynamics between donor countries and recipients. They are often based on assumptions about the nature of African sexualities and the needs of African LGBTI people. They disregard the agency of African civil society movements and political leadership. They also tend to exacerbate the environment of intolerance in which political leadership scapegoat LGBTI people [as the cause of] donor sanctions...

The document calls on the UK to redirect aid money to progressive grassroots organizations in Africa, making the obvious point that diminished aid to the poor will hurt poor lgbt people in the affected nation along with everyone else. Meanwhile, conservative officials who oppose liberalizing the criminal law had a field day reacting to Cameron, invoking national culture, sovereignty and dignity as defenses against efforts by the West to "impose" homosexuality on African nations.

The backlash, for example by political officials and the press in Ghana, will end up helping to scapegoat the human rights groups that badly need to be strengthened. As Cameron has acknowledged, his threat will produce no change in the near future. It's much more likely that these groups could.

When public employees seek religious exemption from job duties

The ever astute Linda Greenhouse has provided an excellent quick history for contextualizing legal conflicts between civil rights and claims for religious exemptions:

The refusal by an upstate New York town clerk to sign marriage licenses for same-sex couples... can be seen simply as a discordant footnote to the march of marriage equality in New York State. But seen in a broader context, it is also more than that...

A few years ago, a county official in Pennsylvania refused to issue a marriage license because the would-be groom, while providing proof of identity in the form of a Mexican passport, could not prove that he was in the United States legally. The couple sued (the would-be bride was an American citizen, as was their young child) and won a judgment from a federal district judge, A. Richard Caputo, who found that the “fundamental character of the right to marry” was not dependent on citizenship. ... 

What are we to make of public health workers who use the power of their state-issued licenses to impose their own version of morality on those they are licensed to serve? While nearly all states permit medical providers to refuse to perform abortions, no such consensus has emerged with respect to birth control. The issue comes up repeatedly, and the states are all over the lot. Five states require pharmacists or pharmacies to fill all valid prescriptions for contraception (California, Illinois, New Jersey, Washington and Wisconsin.) Six others allow pharmacists to refuse to dispense emergency contraception (Arizona, Arkansas, Georgia, Idaho, Mississippi and South Dakota.) Several other states exclude emergency contraception from their Medicaid plans or from required coverage for contraception in state-regulated insurance plans.

While contraception has been a back-burner issue compared with the much more visible debate over insurance coverage for abortion, that may soon end. A fierce debate, although largely still under the radar, surrounds the Obama administration’s proposal to require private insurance plans to cover “women’s preventive services” without requiring a co-payment.

According to the proposed rule, which was issued Aug. 1 and which adopts a recommendation by the Institution of Medicine, these services include “access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling.” As the Department of Health and Human Services describes the purpose of the requirement: “Family planning services are an essential preventive service for women and critical to appropriately spacing and ensuring intended pregnancies, which results in improved maternal health and better birth outcomes.”

Neither the fact that the rule does not apply to abortion or “abortifacient drugs,” nor that 28 states already require employer-provided insurance plans to cover contraception, has kept opponents from describing the proposal as “attacking the consciences of our nation’s healthcare providers,” as a recent publication by the “Task Force on Conscience Protection” of the Witherspoon Institute put it.

The Witherspoon Institute [is] a conservative research organization that has assumed a leading role on the intellectual religious right from its base in Princeton, N.J...[T]he final paragraph of the Witherspoon task force’s four-page statement [condemns] “an irrational commitment to unrestrained sexual expression,” a “new federal orthodoxy concerning human sexuality.” In other words, [Witherspoon is] re-fighting not only the birth control wars but the sexual revolution itself. The social revolution that brought same-sex marriage to New York seems a brushfire by comparison.

Seventeen years ago, a Chicago police officer named Angelo Rodriguez sought an exemption from an assignment to guard an abortion clinic in his precinct. He argued that his Catholic faith prohibited him from any acts that might facilitate abortion, including protecting doctors and patients. His commander offered to accommodate him with a transfer to a district without any abortion clinics. Finding the offer inadequate and insisting on his right to an exemption, the police officer sued.

He lost in both federal district court and in the United States Court of Appeals for the Seventh Circuit. The appeals court held that the city had done all that was required under Title VII of the Civil Rights Act of 1964, which obliges employers to make “reasonable accommodation” to an employee’s religious needs. Judge Richard A. Posner wrote a separate concurring opinion to make a larger point. Beyond deciding whether a particular offer was an adequate accommodation, Judge Posner said, the court should make clear that police officers and firefighters simply have no right “to recuse themselves from having to protect persons of whose activities they disapprove for religious (or any other) reasons.” The real objection to such exemptions, he explained, was not to administrative inconvenience, “though that might be considerable in some instances.” Rather, “the objection is to the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick and choose whom to protect.”

Or, I would add — as I’d like to think Judge Posner might — whom to grant marriage licenses to or whom to fill birth-control prescriptions for. Ordinarily, I don’t think that Judge Posner can be topped in reasoning or rhetoric, but in this instance, I will give the last word to Gov. Andrew M. Cuomo, in his succinct response to the marriage-license refusal issue: “When you enforce the laws of the state, you don’t get to pick and choose.”

Denmark (and its official church) set to legalize gay marriage

I have to confess that I didn't realize that Denmark has an official state religion - the Church of Denmark - administered by public employees, supported by taxes, and with policies subject to the decisions of the secular state. How does a society set up in that way navigate the issue of same-sex marriage?  See below, from the Copenhagen Post:

...The government plans to introduce a bill just after the New Year that will allow same-sex couples to hold weddings in the Church of Denmark and be ‘married’ under Danish law. Same-sex couples are currently allowed to have ‘registered partnerships’, a civil status, but are barred from marriage and church weddings.

“The first same-sex weddings will hopefully become reality in Spring 2012. I look forward to the moment the first homosexual couple steps out of the church. I’ll be standing out there throwing rice,” the new church minister, Manu Sareen, a Social Liberal, told Jyllands-Posten newspaper...

In 1989 Denmark became the first country in the world to legalise civil unions between same-sex partners. But the country stopped short of calling it “marriage” and same-sex couples still are not allowed to have marriage ceremonies in the Church of Denmark.

Polls taken over the years, and right up until last week, have consistently shown that around 69 percent of the population supports same-sex marriage in the church. The Danish clergy and politicians have lagged behind popular opinion, however.

A 2004 poll revealed that less than 40 percent of the clergy in the Church of Denmark supported same-sex marriage – a more than 30 percentage point difference from the general population. Moreover, bills to legalise same-sex marriage were voted down by parliament several times.

But the outlook may be different now that the centre-left has assumed power after ten years in opposition and has appointed a church minister whose beliefs and religious habits more closely resemble those of most Danes...

Less than five percent of Danes today attend church services on a weekly basis, yet 80 percent are – like Sareen – registered members who pay taxes to support it, but who only rarely attend services. This year alone, the Church of Denmark will receive an estimated 5.9 billion kroner in taxes from its registered members, plus additional tax-supported state subsidies equalling 130 kroner for every single citizen, regardless of religious affiliation, sexual preference, or other beliefs.

Helene Devantié, the chair of Kirketjenerforening, the association for church employees, was willing to allow for same-sex marriages in the Church of Denmark, but only as long as church employees could choose, on an individual basis, whether or not to serve same-sex couples.

“The churches should have the option of creating local agreements, so that the employees who have ethical or moral problems with homosexuals marrying can exempt themselves,” she said.

Devantié’s demand raised questions about whether church employees – public employees, whose salaries are paid by taxes – should have the right to refuse service to certain citizens, just because they disapprove of their lifestyles or personal attributes.

Minister Sareen said church employees who are set against marrying homosexuals would not be forced to conduct same-sex ceremonies. “But we must also make it possible for homosexuals to marry in the church,” he added.

Conference of Catholic Bishops launches new organization to fight equality, preserve special treatment for religious entities

The U.S. Conference of Catholic Bishops has created a new DC-based lobbying group to fight what it calls an "unprecedented assault" on the right "to proclaim the truth of religious freedom." Archbishop Timothy Dolan of New York, president of the USCCB, announced the new campaign in a letter identifying the perceived threats to religious liberty that justified "a new moment in the history of our Conference."

Most of the declared threats were policies dealing with either lgbt rights or access to abortion and contraception. In addition to the new New York marriage equality law, the letter cites the Justice Department's decision to stop defending the constitutionality of DoMA. Even worse, the letter says,

the Department started filing briefs actively attacking DOMA’s constitutionality, claiming that supporters of the law could only have been motivated by bias and prejudice.  If the label of "bigot" sticks to us—especially in court—because of our teaching on marriage, we’ll have church-state conflicts for years to come as a result.

The Dolan letter also criticizes the HHS announcement that health insurance policies offered through new health reform systems would be required to cover birth control, federal rules that could require a Catholic charitable organization to provide abortion and contraception services to trafficking victims and condom distribution in HIV-prevention programs abroad, as well as the Justice Department argument in EEOC v. Hosanna-Tabor that churches should be required to follow anti-discrimination in employment laws.

"We're not hiring your K Street lobbyists," Archbishop Dolan told Roll Call. "We'll hire a constitutional lawyer who can really look carefully at these issues, and hire a policy advocacy person who can advocate the church's position."  

The lgbt blogosphere is full of news about right-wing religious nuts, some of them currently seeking the Republican nomination for President, spouting various now out-of-touch slogans about gay people being sick or evil.  It's easy to laugh and dismiss them. The USCCB's action, however, should not be dismissed or ridiculed. These people may be wrong, but - especially in Congress - they are credible, widely respected, and powerful. Not to mention financially capable of mounting a more sophisticated effort than the Family Research Councils of the world can dream of.

This creation of a permanent satellite advocacy organization, a commitment that marks another more reactionary step by the USCCB, an organization that has led advocacy efforts for poor people even as it has fought against reproductive rights for women and equality for lgbt people. Until last year, for example, the Conference was neutral on ENDA. It is now officially in opposition, and terminated its membership in the Leadership Conference on Civil Rights over these issues.

With public opinion running in the opposite direction on their doctrines related to sexuality, religious conservatives are seeking to reframe the debate about lgbt equality - whether in the workplace or in marriage - in less invidious, more intellectually respectable terms. They want the public to see these disputes as being about lofty concepts of religious freedom rather than about using the power of the state to enforce their claims of moral superiority.  If only.

[Correction: This new entity is not the first permanent satellite advocacy group created by the USCCB; the Committee for a Human Life Amendment was created earlier.]

The week ahead: October 3, 2011

It's going to be a big week at the Supreme Court. Here's what to watch for:

Wednesday, October 5 - The Supreme Court will hear argument in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the EEOC is seeking to block use of the "ministerial exception," - under which religious entities are exempt from application of any anti-discrimination laws - in a case involving the firing of a religious school teacher who filed a complaint of disability discrimination. The case is being litigated on a retaliation theory; the school asserts that filing cases against others within the faith violates their beliefs and that the ministerial exception blocks plaintiff's retaliation claim. The case is on appeal from a Sixth Circuit decision.

Also October 5 - Supreme Court Justices Breyer and Scalia will testify before the Senate Committee on the Judiciary at a hearing on "Considering the Role of Judges Under the Constitution of the United States" at 2:30 pm.  The hearing will be webcast.

Friday, October 7 - At the Justices' private conference meeting, the Supreme Court will decide whether to grant cert in Adar v. Smith, a case in which Louisiana officials denied recognition of a two-same-sex parent adoption from another state.

 

NAACP moves on lgbt rights, seeks greater lgbt reliability on racial justice issues

In case you haven't noticed, there is a new generation in evidence at the traditional insitutional icon of civil rights, the NAACP. NAACP President Benjamin Jealous embodies the shift: he grew up in an interracial, middle-class, left-of-center, northern California family and became a Rhodes Scholar. He's open about his openly gay brother. Jealous brings with him an inclination toward involvement in a range of progressive issues, including but not limited to lgbt rights. He's also clear that the lgbt community needs to be a more constant ally on racial issues.

A milestone in this change came during the recent annual conference, with the first-ever NAACP town hall discussion of lgbt rights. The program framed the event as

“OUR COLLECTIVE RESPONSIBILITY: WHY WE MUST OVERCOME HOMOPHOBIA”

Building upon the ground breaking work of the NAACP LGBT Taskforce, this workshop will provide an in-depth analysis on social issues and policies that disproportionately affect the LGBT Black community, this public forum will examine the complex layers of homophobia within the Black community and new ideas on the important role of Black straight allies, civil rights organizations, families, churches and colleges to eradicate stigma, violence and discrimination of Black gay people. Like most Blackpeople, Black LGBT people share a common history and continued struggle to eradicate racism, yet their identities, talents and leadership are diminished because of homophobia. Through film, engaged dialogue and featured presentations from academics, activists, clergy and policy makers this informative and provocative forum will examine the signifi cant contributions of Black gay leaders within the Civil Rights movement, the role of Black straight allies in addressing homophobia and how we can collectively overcome LGBT discrimination.

Julian Bond, who led the event, stated the NAACP LGBT Task Force was formed in 2009 with the National Black Justice Coalition, and described the NAACP’s three-point mission to increase acceptance of black LGBT people in the African American community:

1. strengthen the NAACP’s knowledge of LGBT issues and policies,
2. build alliances with LGBT organizations, and
3. advance awareness of LGBT issues as they relate to the programs and interests of the NAACP.

He also addressed several areas where conflict exists between the LGBT and the African American communities.

We know that black lesbians, black gay men, black bisexual people and black transgender people suffer a level of discrimination and harassment far beyond the level felt by straight black women and men.

If you disagree, or if your Bible tells you that gay people ought not be married in your church, don’t tell them they can’t be married at City Hall. Marriage is a civil rite as well as a civil right, and we can’t allow religious bigotry to close the door to justice for anyone….

For some people, comparisons between the African American Civil Rights movement and the movement for gay and lesbian rights seems to diminish the long, black historical struggle with all it’s suffering, sacrifices and endless toil. People of color, however, ought to be flattered that our Movement has provided so much inspiration for others, that it has been so widely imitated, and that our tactics, heroes, heroines and methods, even our songs, have been appropriated as models for others….

People of color carry the badge of who we are on our faces. But we are far from the only people suffering from discrimination…. They deserve the laws, protections and civil rights, too.

  

 [More coverage here]

Religious marriage, post-gay

Years of debates within the lgbt community over prioritizing access to marriage as a movement goal have stretched into decades, and I long ago gave up on hearing any new arguments on any side. Perhaps the only principle held universally in this intra-community disputation is that religious and civil marriage should be understood as separate and limited to their respective zones. As social acceptance of same-sex marriage increases, the number of faith groups performing them will probably increase -- or not, but that's up to each religion. Access to civil marriage should be determined by application of secular principles such as equality, not based on majoritarian religious belief. And that's pretty much it for overlap.

Then I came across an essay in the Boston Review by gay writer Jason Anthony, who does have something original to say. So - even though it isn't my argument - in honor of the big day in New York, here are excerpts:

...I question whether embracing marriage is the spiritually and morally right thing for gays to do. I have intermittently made my living writing about religion and therefore witnessed a great deal of religious activity. In churches, synagogues, and mosques, something fundamentally restorative happens—mostly, I think, because the communities that meet there are so like queer families. Congregants make a simple commitment to be there for one another. By this act, if nothing else, they offer absolution for the many failings of the individual. Perhaps this is why the religious, according to research reported by political scientists Robert Putnam and David Campbell in American Grace (2010), test as happier and more involved and invested citizens. Religion has gotten a bad rap for being exclusionary, but some of us still celebrate it as an unmatched social tonic.

That said, gay marriage may cause the greatest quake in the history of Judeo-Christian religion since the Protestant Reformation. A straightforward reading of Leviticus and Romans shows that a government siding with same-sex partnerships is a gauntlet thrown down to the Judeo-Christian tradition. A line in the sand has been crossed.

To be fair, society crosses these lines often. Women have spoken in church, despite Paul’s strictures. Slavery eventually passed away, though slaves in the New Testament are advised to be obedient. But the homosexuality debate is, to my mind, of an entirely different degree. On other social issues of our day, early Christians were a liberal vanguard. They promoted the radical message that, in spiritual life, “there is neither . . . slave nor free, male nor female.” Not so with homosexuality. Same-sex carnality falls unequivocally afoul of early Christian morality, just as it does with that of nearly every venerated holy text worldwide.

In The Varieties of Religious Experience, William James points out that, time and again, societies take drastic steps when the will of the people conflicts with religious values. Deities get discarded when they fall out of step with popular morality.

"So soon as [the fruits of the deity] conflicted with indispensible human ideals, or thwarted too extensively other values; so soon as they appeared childish, contemptible, or immoral when reflected on, the deity grew discredited, and was erelong neglected and forgotten."

From the decadence and blood sacrifice of the pagan god-emperors that inspired the founding of Christianity to the excesses of the sixteenth-century church that led to the Reformation, new morals mean trouble for the spiritual status quo.

Fine, for those who can do without faith. But others, like myself, who value our shared architectures of morality and meaning may wonder what lies ahead. Will the LGBT world assimilate with our marriages and our normalized families to the Christian moral tradition—or might we represent some kind of Jamesian next chapter?

Our acceptance, let’s remember, was contingent on society deciding that consenting adults may choose their own kind of love. Is this the nature of the gift that we are meant to bring the future? If so, is fighting for marriage, and only marriage, in some sense a moral failure? What about the many other blessed varieties of human love to which, during our forty years in the wilderness, we gays and lesbians gave birth?...