Equality For All

In 2016, Remember This Week at the Supreme Court

It's been a week of mixed emotions for those of us who care about civil rights. There was the elation today when the Supreme Court overturned the so-called Defense of Marriage Act -- the discriminatory law that has hurt so many Americans in its nearly 17 years of existence -- and let marriage equality return to California. There was the anger when the Court twisted the law to make it harder for workers and consumers to take on big corporations. And there was the disbelief and outrage when the Court declared that a key part of the Voting Rights Act that was so important and had worked so well was now somehow no longer constitutional.

But throughout the week, I have been reminded of one thing: how grateful I am that Mitt Romney will not be picking the next Supreme Court justice.

It remains true that this Supreme Court is one of the most right-leaning in American history. The majority's head-in-the-sand decision on the Voting Rights Act -- declaring that the VRA isn't needed anymore because it's working so well -- was a stark reminder of why we need to elect presidents who will nominate Supreme Court justices who understand both the text and history of the Constitution and the way it affects real people's lives.

We were reminded of this again today when all the conservative justices except for Anthony Kennedy stood behind the clearly unconstitutional DOMA. Justice Antonin Scalia -- no stranger to anti-gay rhetoric -- wrote an apoplectic rant of a dissent denying the Court's clear role in preserving equal protection. If there had been one more far-right justice on the court, Scalia's dissent could have been the majority opinion.

Just think of how different this week would have been if Sonia Sotomayor and Elena Kagan were not on the court and if John McCain had picked two justices instead. We almost certainly wouldn't have a strong affirmation of LGBT equality. Efforts to strip people of color of their voting rights would likely have stood with fewer justices in dissent. And the rights of workers and consumers could be in even greater peril.

As the Republican party moves further and further to the right, it is trying to take the courts with it. This week, we saw what that means in practice. As we move forward to urge Congress to fix the Voting Rights Act and reinforce protections for workers and consumers, and work to make sure that marriage equality is recognized in all states, we must always remember the courts. Elections have real consequences. These Supreme Court decisions had less to do with evolving legal theory than with who appointed the justices. Whether historically good or disastrous, all these decisions were decided by just one vote. In 2016, let's not forget what happened this week.

This post originally appeared in the Huffington Post.

PFAW

Supreme Court Dumps PART of DOMA

The Supreme Court today ruled that the core section of the so-called Defense of Marriage Act violates the Constitution’s guarantee of equal protection under the law. DOMA’s Section 3, which the Court vacated, prevented the federal government from recognizing same-sex marriages performed in the states, thereby hitting legally married gay and lesbian couples with extra taxes and depriving them of a slew of federal protections.

People For the American Way Foundation president Michael Keegan said of the Supreme Court’s ruling: “Today’s  DOMA ruling is a profound step forward for loving, committed same-sex couples across the country. The decision is premised on the plain fact that there is no good reason for the government to recognize some legally married couples while discriminating against others.”

PFAW launched a campaign to “Dump DOMA” in 2008. Since then, our petition calling on Congress to repeal the discriminatory law  has gathered 230,000 signatures.

But the effort to overturn DOMA is not over. While Section 3 was the law’s most damaging provision, DOMA’s Section 2, which says that states don’t have to recognize same-sex marriages performed in other states, still stands. We will continue to work to overturn the remainder of DOMA and ensure that all gay and lesbian Americans have the right to marriage, no matter which state they make their home.

While our work continues, today’s decision represents a historic turning point for equality.  DOMA will no longer tear apart binational couples. It will no longer impose a “gay tax” on legally married same-sex couples. It will no longer deny benefits to same-sex spouses of federal employees. It will no longer deny gay and lesbian veterans benefits for their spouses.

The story of Edith Windsor, the plaintiff who brought DOMA to the Supreme Court, and Thea Spyer, her late wife and partner of 40 years, illustrates what this decision will mean to so many Americans:
 

PFAW

DOMA Decision Slices Right Wing Talking Point on Referendums

Today's opinion shatters the ridiculous right-wing line that marriage equality laws are illegitimate without a referendum.
PFAW Foundation

PFAW Foundation Applauds Wins at Supreme Court

The Supreme Court's rulings in the marriage cases mark an important victory for all Americans who value the principle of equal justice under law.

HUD Report Documents Housing Discrimination Against Same-Sex Couples

A new report released this week by the US Department of Housing and Urban Development (HUD) is the first-ever national study documenting discrimination against same-sex couples in the private rental market.
PFAW

Delaware Passes Historic Transgender Anti-Discrimination Bill

Last Tuesday Delaware Governor Jack Markell wrote that in his state, it is high time “our laws reflect our values.”  The bill in question was the Gender Identity Nondiscrimination Act of 2013, which adds gender identity to the state’s hate crime prevention and non-discrimination laws.  As Gov. Markell pointed out,

“Under our State's laws, it is currently legal to fire someone, deny them housing, or throw them out of a restaurant simply because they are transgender. This is simply not the Delaware way…”

And it’s not the American way. With bipartisan support in the state House and Senate, the bill passed the Delaware legislature and was signed into law by Gov. Markell Wednesday evening, making Delaware the 17th state with an employment non-discrimination law covering gender identity in addition to sexual orientation.

This is a profound victory for transgender Delawareans like Jay Campbell, who has so far felt unable to come out in his workplace. Campbell told the News Journal of Wilmington earlier this month,

“Without basic protection from discrimination, I can’t afford to tell my employer. I can’t obtain health coverage for the fear I’ll be outed and fired.”

Campbell shares this concern with other transgender – as well as lesbian, gay, and bisexual – people across the country.  In the majority of U.S. states, it remains legal to fire someone for being LGBT. This means that far too many people find themselves forced to choose between risking their livelihoods and undertaking the painful work of hiding who they are, day after day.

Today’s victory in Delaware underscores the need for employment protections for LGBT workers in every state through the Employment Non-Discrimination Act.  This common-sense solution would help ensure that employees like Campbell are judged by how well they do their job, not by who they are or who they love.

PFAW

Anti-Bullying Protections Headed to Senate Floor

Senate Majority Leader Harry Reid is expected to bring the bill to the floor but has not released a date. People for the American Way will continue to monitor ESEA’s progress and the anti-bullying provisions it contains.
PFAW

Tell Congress: Pass the Employment Non-Discrimination Act (ENDA)

The Employment Non-Discrimination Act (ENDA) is a very basic, commonsense measure that would protect LGBT Americans against the very real discrimination many of them face in the workplace -- one that the public overwhelmingly supports.

Corsi Warns Gay Rights Will Lead to Legalization of Snuff Films, End of Freedom

In a speech recently posted online, prolific conspiracy theorist Jerome Corsi claims that the gay rights movement will ultimately lead to the legalization of pedophilia, bestiality and “snuff films” in which you “kill a few people because it’s sexually exciting.”

“If sex becomes disassociated from a biblical purpose, than all the abuses we saw in paganism are about to return,” Corsi warns, adding that if the country “proceeds down this path…there will no longer be any basis for freedom in the United States.”

Porter: Boy Scouts Letting 'Confused Children Who Are Sexually Attracted to Other Boys Go Camping With Your Son'

In recent remarks posted on YouTube by right-wing activist Cliff Kincaid, Faith2Action’s Janet Porter gave her take on the Boy Scouts’ recent decision to allow openly gay scouts while continuing to bar openly gay troop leaders.

The Boy Scouts’ decision, Porter said, means “the last secular organization has capitulated to the homosexual agenda.”

“While they’re keeping out the homosexual predator scoutmasters,” she said, “they’re allowing these confused children who are sexually attracted to other boys to go camping with your son in the same tent.”

This, she added, would be just like the Girl Scouts opening up camping trips to boys.

For LGBT Seniors Fighting DOMA is About Economic Survival

For the elderly, the fight against DOMA often isn’t only a question of receiving federal recognition for a marriage – it’s also a question of basic economic survival.
PFAW

Delaware Senate Passes Transgender Anti-Discrimination Bill

Yesterday afternoon the Delaware Senate passed a historic civil rights bill adding gender identity to the state’s hate crime prevention and non-discrimination laws.  Despite damaging lies about transgender Americans pushed by organizations like Focus on the Family and the Delaware Family Policy Council, the state Senate approved the bill in an 11-7 vote.

Sarah McBride of Equality Delaware said,

“The Senate vote today inspired a lot of hope in me and I’m sure that’s true for many other transgender people across Delaware. It was inspiring to see a majority of the Senators stand up for a group that has seen disproportionate levels of discrimination and violence.”

If enacted, Delaware will become the 17th state with an employment non-discrimination law that covers gender identity in addition to sexual orientation. 
 

PFAW

FRC Doubles Down on Blaming DADT Repeal for Military Sexual Assaults

In his daily email to members yesterday, Family Research Council president Tony Perkins doubled down on his totally unfounded claim that the repeal of Don’t Ask, Don’t Tell led to a spike in sexual assaults in the military.

Perkins writes that “most” servicemembers have become “victims -- not just of assault, but of this new sexually-charged environment,” adding, absurdly, that when Congress repealed Don’t Ask, Don’t Tell it “made sexual attraction a qualification for military service -- on par with academic performance, community service, physical fitness, or moral standing.”

We’ll repeat: a study one year after the policy was repealed found that allowing gays and lesbians to serve openly has had no negative effect on the military.

It must have taken a lot of restraint for America's top military leaders to sit through yesterday's Senate hearing on sexual assault and never say the one thing on everyone's minds: "We told you so." A little over two years ago, the same Senate ignored the warnings of many of the men assembled Tuesday and charged ahead with its repeal of "Don't Ask, Don't Tell" against the military's advice. Now, a year and half into this post-DADT era, these Senators demand to know why sexual attacks are through the roof.

Isn't it obvious? The Pentagon downplayed the effects of open homosexuality when it was implemented in 2011 -- something it will have a tough time doing now, with the rate of male-on-male assaults at a record high. While the media rightly highlights the female victims, the Pentagon's 1,400-page report explains that service men are just as affected -- if not more so. According to the Defense Department's own numbers, military men suffered 2,000 more sexual attacks than their female counterparts in 2012, the first full year that open homosexuality was tolerated. All together, "unwanted sexual conduct" climbed to 26,000 cases (up from 19,000 in 2010) -- a 37% spike in two years. And some believe that's a low estimate -- in part because men are so reluctant to report abuse, especially from other men.

Pentagon spokeswoman Cynthia Smith said a "focus" of the assault office "is specifically geared toward male survivors and will include why male survivors report at much lower rates than female survivors..." Unfortunately, most are victims -- not just of assault, but of this new sexually-charged environment. And while the military could certainly do a better job of cracking down on abuse, lawmakers are blasting service chiefs for a problem that, in many ways, they helped create! Senators like Kirsten Gillibrand (D-N.Y.), for example, led the charge to overturn DADT -- and then spent yesterday's hearing complaining about the result.

Of course, the liberal members of the Armed Services Committee were careful to dance around the same-sex assault issue, but there's no mistaking the elephant in the room. The White House has spent Barack Obama's entire presidency sexualizing the military, beginning with the repeal of "Don't Ask, Don't Tell." It doesn't take a rocket scientist to understand that when Congress made sexual attraction a qualification for military service -- on par with academic performance, community service, physical fitness, or moral standing -- it radically altered America's fighting force.

New Report Sheds Light on Inequalities Suffered by LGBT Workers

Our society is one which remains afflicted by institutionalized discrimination. Although most Americans believe protections already exist, it is still perfectly legal to fire someone for being lesbian, gay, or bisexual in 29 states, and for being transgender in 34.

Indeed, a new report released Tuesday by the Movement Advancement Project, the Center for American Progress, the Human Rights Campaign, and others provides a comprehensive synthesis of the wealth of evidence documenting the inequalities faced by LGBT workers. Titled “A Broken Bargain: Discrimination, Fewer Benefits and More Taxes for LGBT Workers,” the report presents extensive documentation of bias in the recruitment process, of hostile work environments, of persistent wage disparities as compared to non-LGBT employees, and of dramatically reduced access to health insurance, family and medical leave, retirement benefits, and disability and survivor benefits – despite paying higher taxes due to the inability of LGBT households to file jointly.

The impact on families is devastating. According to the report, inequality when looking for jobs, inequality on the job, and inequality in benefits received from jobs combine to make LGBT parents twice as likely to live near the poverty line when compared to non-LGBT counterparts.

Left to right, seated at panel: Bill Hendrix, Nicole G. Berner, Dorian Warren,Sam Hall, Mia Macy, T.J. Maloney. Photo of release event at Center for American Progress.

While the Equal Employment Opportunity Commission recently found that existing Title VII law covers gender identity, courts are not required to give any deference to its legal interpretations, so legislation is required. Such a bill to guarantee much-needed federal employment protections for LGBT people was recently introduced in the 113th Congress. Known as the Employment Non-Discrimination Act (ENDA), the bill has been introduced in nearly every Congressional session since 1994, and the fight for basic workplace equality continues to the present day.

Further, corporate America knows that ENDA is good for business. As Senator Jeff Merkley (D-OR) said Tuesday morning at the release event for the report,

“When we asked employers about this, many of them said, ‘well, isn’t it already illegal’? … In our Fortune 500 companies, over 400 have policies addressing LGBT discrimination, and well over half have addressed gender identity. In the 21 state laboratories in which this has been implemented, there has been no concern over [costs to business caused by] additional lawsuits … they are a small percentage of all lawsuits to do with gender, religion, and race. This is a non-issue.”

Passing ENDA, then, would not only help alleviate discrimination faced by LGBT workers, but would also help businesses attract the best qualified employees possible. As Bill Hendrix from Dow Chemical said at the event,

“It’s hard enough already to find good people to fill jobs. Why would you begin by excluding parts of the population?”

PFAW

Student Non-Discrimination Act Sorely Needed in Our Nation’s Schools

“I stopped going to school four months before graduation because I couldn’t handle the bullying anymore. I will not get to attend my senior prom, and…throw my graduation cap in the air.”

Harassment and bullying in schools are widely understood to be pervasive nationwide problems.  But as the above quote from an LGBT student highlights, for LGBT young people the situation can be especially severe.  Yesterday the Student Non-Discrimination Act (SNDA), which would prohibit discrimination based on sexual orientation and gender identity/expression in public schools, was both reintroduced in the Senate by Sen. Al Franken (D-MN) and included in Sen. Tom Harkin’s (D-IA) proposed education bill updating the Elementary and Secondary Education Act. 

Studies show that this kind of legislation is sorely needed. The most recent Gay, Lesbian & Straight Education Network National School Climate Survey found that in the past year alone, more than eight in ten LGBT students had been verbally harassed because of their sexual orientation and more than six in ten because of their gender expression.  The majority of students who were harassed did not report it to school staff, believing that nothing would happen if they did – or that the situation could get even worse. 

As one student shared,

“Bullying in our school is mostly verbal, but it hurts just as much as any physical pain… Teachers rarely do anything about it.”

Those who were harassed frequently had lower GPAs and were less likely to say they planned to go on to college or other post-secondary education.  Many LGBT students reported missing class because they felt unsafe or uncomfortable, with nearly one in three LGBT students missing at least one full school day in the past month.

When harassment at school is associated with missed classes, lowered grades, shifted educational ambitions, or even depression, it can have long term implications for the wellbeing of LGBT youth.  No student should face this kind of hostility at school because of who they are or who others perceive them to be.

PFAW

American Family Association: Gay-Accepting Straights Inviting 'Devastation Wrought by God's Wrath'

In last month’s American Family Association magazine, Ed Vitagliano lamented that gay people might not want to be friends with Christians who are opposed to marriage equality. Vitagliano is probably not boosting his chances of making gay friends with his article in June’s AFA Journal, a two-page spread with “Sodom” plastered across the top.

The thrust of the article is that “embracing homosexuality is a sign of deep spiritual sickness” in a culture.  America, he writes, is on the verge of suppressing the truth about God’s plan and the duality of gender. “A downward death spiral results from such suppression,” he warns.

The homosexual movement has had such great success because Americans have become arrogantly self-indulgent and idolatrous. Straight America has embraced homosexuality because straight Americans first embraced the sexual revolution for the satisfaction of their own perverse sexual appetites.

Judgment came to Sodom because violent homosexuality was the proverbial straw that broke the camel’s back. As a prevalent sin, however, it was the manifestation of an underlying wickedness that permeated the entire culture – a wickedness that was not limited to the homosexual.

Thus homosexuality often becomes the barometer of a culture rotting out from the inside. If the problem were only homosexuality, then the simple act of pushing it back into the closet  (if that were possible) would be enough to forestall judgment.

But what Ezekiel 16 teaches us is this: By the time a culture accepts idolatry, abortion and homosexuality, it is already ripe for the devastation wrought by God’s wrath.

Whether they live in a decidedly pagan culture or one, like America, that is an admixture, Christians are called to be salt and light.

Standing against the unrighteousness permeating our society might not be the easy thing to do, but it’s a whole lot easier than running from the fire and brimstone that inevitably follow.

Exxon Mobil Votes Down LGBT Discrimination Ban, Again

Today, for the fourteenth time, Exxon Mobil shareholders voted down a resolution supporting an LGBT-inclusive equal employment opportunity statement. With  94% of the largest companies in America already prohibiting sexual orientation-based discrimination and 78% prohibiting gender identity-based discrimination, Exxon Mobil is way behind.  Exxon has even gone out of its way to avoid implementing this type of policy.  Though Mobil Oil had non-discrimination policies in place protecting workers on the basis of sexual orientation, Exxon rescinded them over a decade ago when they bought the company. 

Exxon Mobil’s refusal to change their outdated policy underscores the need for employment non-discrimination laws that protect LGBT workers.  Though most Americans believe that LGBT employees are already protected, in much of our country employers can still fire someone because of who they are or who they love. 

PFAW Communications Director Drew Courtney recently pointed out that on the question of whether it’s okay to fire someone for being LGBT,

“few Americans still think that’s a live question.  Overwhelming majorities of Americans support the passage of the Employment Non-Discrimination Act (ENDA), which would make it illegal to fire someone for being gay or transgender.”

But Exxon Mobil hasn’t yet gotten that memo.

PFAW

Tony Perkins Knows What's Best for Gays – and the GOP

The latest fundraising pitch from the Family Research Council’s Tony Perkins blasts “the national Republicans” whom he says are “running away from the natural and biblical definition of marriage, flocking to the radical side in support of same-sex ‘marriage.’”

Perkins’ letter insists that allowing same-sex couples to get married is dangerous to religious liberties, to the next generation, and “dangerous to civilization itself.” Perhaps worst of all is that Obama’s “machine” would benefit from the GOP alienating its conservative base:

Sacrificing our values, and their distinctives as a Party, will send millions of voters packing. One terrible side effect: President Obama’s machine will be stronger than ever. Their radicalization of American public policy will intensify.

But be assured that Perkins “cares deeply” about gay people:

Please understand: this is no vendetta. We care deeply about those who engage in either heterosexual sex outside of marriage or homosexual behavior in any context. Both are immoral and unhealthy. We want what is truly best for them and for our nation.

What is truly best for them is a lifestyle of biblical morality. (emphasis in original)

Perkins calls for a “massive outpouring of outrage from principled conservatives” and urges supporters to sign a petition to Republican National Committee Chairman Reince Priebus. And, of course, to send a check.

Blockbuster Decisions Coming Soon from the Supreme Court . . .Will Conservative Justices Twist the Constitution to Subvert Equal Protection?

MEMO

TO: Reporters and Editors
FROM: Jamie Raskin, Senior Fellow, People for the American Way Foundation
DATE:  May 24, 2013

RE: Blockbuster Decisions Coming Soon from the Supreme Court . . .Will Conservative Justices Twist the Constitution to Subvert Equal Protection?

The Roberts Court will soon release major decisions shaping the future of voting rights protection, affirmative action in university admissions, and the rights of marriage for gay and lesbian Americans. In each case, the promotion of equal rights under law in our society is opposed by a conservative agenda that seeks to enshrine inequality in the name of “federalism,” “color-blindness,” or “social tradition.” What is at stake in these cases is whether America continues its journey towards strong and inclusive multi-racial democracy or accepts conservative arguments that undermine constitutional and social progress.   

Congressional Protection of Voting Rights versus “Federalism Costs”:

The Voting Rights Act on the Chopping Block in Shelby County v. Holder

In Shelby County v. Holder, conservatives seek to dismantle the essential machinery of modern voting rights protection, which is the pre-clearance procedure for voting changes in covered jurisdictions. This procedure is contained in Section 5 of the Voting Rights Act of 1965, the monumental statutory achievement of Congress in the last century. Chief Justice Roberts, in a near-miss decision on the same subject in 2009, has already expressed the sentiment of his conservative colleagues that the provision now “raises serious constitutional questions.” At oral argument in Shelby County, Justice Scalia offered his view that the Voting Rights Act has become nothing more than a “racial entitlement.” Despite broad bipartisan support in Congress for the Voting rights Act, including Section 5, the conservative legal movement is mobilized for its destruction.

Section 5 obligates covered states and jurisdictions to “pre-clear” changes affecting voting with the Department of Justice or the federal district courts in Washington. This procedure affects states and counties that were the worst offenders against voting rights and has been in place for nearly a half-century. Section 2 of the Fifteenth Amendment clearly gives Congress the “power to enforce” voting rights “by appropriate legislation.” The Court has four times—in South Carolina v. Katzenbach (1966), Georgia v. U.S. (1973), City of Rome v. U.S. (1980), and Lopez v. Monterey County (1999)—rejected invitations by states to declare Section 5 as outside of Congress’ powers under the 14th and 15th Amendments.  Thus, Alabama, Georgia, Louisiana, Arizona, Mississippi, South Carolina, Texas, Virginia and later Alaska (along with certain jurisdictions in California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota) have had to prove that proposed changes in election laws do not disadvantage minority voters. While the Justice Departments and the courts routinely approve more than 99 percent of submitted plans, the VRA remains a critical stop against laws meant to disenfranchise racial minorities. Hundreds of state plans and thousands of proposed changes have been rejected under the law, preventing a backslide in the project of building a strong interracial democracy.

But the case against Section 5 today turns on neither constitutional precedent nor text nor the facts of political life on the ground, but rather on the talk-show fallacy that a nation which twice elects an African-American president simply cannot contain any states or counties where minority voters face actual barriers to participation. Backing up this non-sequitur intuition are constitutional myths: that Congress has to treat all states and counties the same and cannot distinguish among them based on their records of committing voting rights violations. and that the pre-clearance mechanism in the Voting Rights Act and its “coverage formula” impose far too high “federalism costs” on covered areas (i.e., it allegedly takes too much power from the states). All of these taking points are supposed to justify the Court’s substituting its judgment for that of Congress and to find that Section 5 is no longer a “congruent” or “proportional” remedy, under either the Fourteenth Amendment or the Fifteenth Amendment, for threats to voting rights.  But the lower courts in this case reviewed more than 15,000 pages of Congressional findings and testimony and were convinced of the continuing need for preclearance to deal with the disingenuous disenfranchising and diluting schemes in the covered areas, including voter photo ID laws, tightening restrictions on registration and at the polls, and racist gerrymanders.  

The arguments against Section 5 appeal to the racial fatigue of Supreme Court arch-conservatives, who are willing to give state legislatures, a majority of which are in conservative Republican hands today, the freedom to restrict voting rights. The pre-clearance procedures of Section 5 are the major obstacle to this goal because they mean that all of the traditional hijinks of Jim Crow politics must be submitted in advance to federal judges or DOJ civil rights lawyers for approval. Rather than placing the burden on African-Americans and other minority voters to find lawyers and make the case against repressive practices after they go into effect, the covered jurisdictions have to affirmatively show that their innovations are not discriminatory or “retrogressive” before the damage is done. As the Supreme Court put it approvingly in South Carolina v. Katzenbach, “After enduring nearly a century of systematic resistance to the Fifteenth Amendment,” Congress chose “to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”

The word “federalism” does not appear in the Constitution, nor does the opaque and mysterious phrase “federalism costs,” which has become the key mantra for the conservatives.  At least four Justices—and we’ll see about Justice Anthony Kennedy—appear poised to use these malleable concepts to override the clear enforcement powers that the Constitution explicitly assigns to Congress through Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment. Thus, the Supreme Court is on the brink of usurping Congressional power plainly granted by the Constitution by thwarting Congressional decisions to enforce the equal rights of Americans to vote and participate in the political process. 

Racial Integration, Inclusion and Diversity versus “Color-Blindness”:

Affirmative Action Walks the Plank in Fisher v. University of Texas at Austin

The ceaseless attack on affirmative action returns again this Term with Fisher v. University of Texas at Austin, a sweeping challenge to a modest use of race and ethnicity in UT’s admissions process that was adopted to correct for continuing weakness in the numbers of minority students on campus. The twist here is that most UT students are admitted through a policy guaranteeing admission to students who graduate in the top 10 percent of their public high school classes. About one-fifth of the class is admitted outside of that race-neutral policy, and affirmative action plays a role in this small part of the process.   

Most people thought that the lawfulness of such a policy was settled for at least 25 years in 2003, when the Court decided Grutter v. Bollinger and Gratz v. Bollinger, cases testing the constitutionality of affirmative action programs as practiced, respectively, at the University of Michigan Law School and the University of Michigan’s undergraduate program. The majority upheld the Law School’s “holistic” use of race and ethnicity in the process to promote diversity in the educational experience because all consideration of applicants remained individualized and there were no quotas and no numerical targets used in the selection process. (The University of Texas modeled its law school’s affirmative action program after that upheld in Grutter in 2003.) Meanwhile, the majority invalidated the undergraduate plan because racial or ethnic minority status was quantified and treated as adding bonus points in a rigid numerical weighing system, a process that the Court said leaned towards being a quota system. While rejecting the college plan as a blunt instrument, Justice O’Connor found that the kind of diffuse and holistic use of minority status embodied in the law school program was permissible. She thought such affirmative action would be warranted for a period of what she predicted to be another quarter-century. Given that most public universities remained segregated through the 1950s and 1960s, this seemed like a sensible time-line.

The Grutter decision reaffirmed and updated Regents of the University of California v. Bakke, the 1978 high Court decision which struck down numerical quotas for minority admission but approved the generalized use of race in the admissions process to promote the compelling interest in having a diverse student body. Grutter was met with relief and enthusiasm throughout American academia, in the business sector, by the armed services, and across American society.

Now, once again, conservatives hope to turn the Constitution against the project of equal rights and equal opportunities.  The key move is to claim that Equal Protection mandates absolute “color-blindness” and therefore forecloses any conscious efforts to build diversity and inclusion into the educational experience of students. But the history of the Equal Protection Clause demonstrates that its Framers clearly contemplated that government would seek to take account of the racial implications of official discrimination in the past to fashion consciously inclusionary policies going forward.   

Equal Protection of the Rights of all Citizens in Marriage versus “Social Tradition”:

United States v. Windsor and Hollingsworth v. Perry

Two significant cases raise the important issue of whether gay and lesbian Americans enjoy an equal right to marry and to enjoy all the rights of marriage. Here, straightforward understandings of Equal Protection clash with an extra-constitutional commitment to the “social tradition” of discrimination against gay people.

One case, United States v. Windsor, deals with the constitutionality of Section 3 of “DOMA,” the 1996 federal Defense of Marriage Act, which provides that the word “marriage” in any federal law or regulation—including the Social Security Act, the Internal Revenue code, immigration law, and more than 1,000 others—shall apply only to the “legal union of one man and one woman as husband and wife.” This sweeping discrimination means that, although hundreds of thousands of gay and lesbian Americans have won and exercised the right to marry in twelve states and the District of Columbia, the rights, benefits, and duties that they should receive as married people under federal law are categorically withheld from them. Under federal law, married couples who are gay are treated as legal strangers to one another and as unworthy of the rights enjoyed by other citizens.

This discrimination has dramatic consequences. The respondent in Windsor, Edith Windsor, was forced to pay $363,000 in federal taxes on the estate she inherited after her wife (and life partner of 40 years) died, since DOMA prevents same-sex spouses from inheriting marital property on a tax-free basis, a benefit that heterosexual couples take for granted. Windsor won a clean victory in the United States Court of Appeals for the Second Circuit, which found that discrimination against gay people triggers Equal Protection “intermediate scrutiny” and that Congress could not even demonstrate a valid, much less an important, interest for defining marriage at the federal level so as to exclude from its benefits thousands of married couples in the states.

The other case taken up by the Supreme Court  is Hollingsworth v. Perry, which tests the constitutionality of California’s infamous Proposition 8 ballot measure, which revoked the marriage rights that gays and lesbians had enjoyed in the state under a landmark California Supreme Court decision.  Proposition 8 was voided in a broad pro-marriage decision handed down by California United States District Court Judge Vaughn Walker, a decision that was reaffirmed on narrower grounds by the United States Court of Appeals for the Ninth Circuit, which essentially found that California had no rational basis for taking away from its gay citizens the marriage rights that it had previously granted. 

Both cases involve government refusing to recognize the equal rights of gay people, either in married couples or couples who want to get married.  With DOMA, Congress denied the same equal rights and benefits to gay married people as it offers to straight married people, and with Proposition 8, California actually revoked the marriage rights of gay people and prohibited the legislature from ever restoring those rights.  The Proposition 8 proponents even sought to use the measure to annul gays’ and lesbians’ existing marriages without their consent.  The discrimination in both cases is plain to see, all of it justified on the grounds of “traditional marriage” and “social tradition.”

The right to get married as a basic civil right has frequently been  addressed by the Supreme Court, but the Court has never addressed whether that right extends to gay and lesbian Americans, and the Court could successfully dodge the underlying issue here. 

One good possibility is that the Court will strike down DOMA as a naked Equal Protection violation, saying that states need not necessarily extend marriage rights to gay and lesbian residents but that, if states do extend equal marriage rights, the federal government may not discriminate against people who avail themselves of those rights. Pro-marriage forces expecting this result place a high burden of hope on Justice Anthony Kennedy, who has written excellent majority opinions upholding the equal rights of gay and lesbian Americans in Romer v. Evans (1996) and Lawrence v. Texas (2003). But Kennedy may instead decide purely on federalism grounds, potentially providing a fifth vote to strike down DOMA but preventing any pro-equality legal rationale from having a majority that would bind lower courts in the future.

In the California Proposition 8 case, the Court could say that states that give all of the state-law rights of marriage to gay and lesbian citizens cannot withhold from them the title of marriage; this would affect eight states in a similar situation as California. Another possibility, more remote, is that Justice Kennedy would agree to join the moderate-liberal faction in simply declaring that gay people have equal rights to marry, which would mean invalidating discriminatory  laws still on the books in the vast majority of states. Conversely, the Court might also say that there is no obligation for California to protect the right of gay and lesbian citizens to marry at all. Or, finally, it could dismiss the whole case on either standing grounds—the Attorney general of California refused to defend  Proposition 8, leaving that task to anti-marriage advocates who put the initiative on the ballot—or on the grounds that cert was improvidently granted. There are still many ways to escape the basic issue of discrimination, even though all of the momentum in the states is towards marriage equality and the rationales for discrimination have been collapsing everywhere like a giant house of cards. 

Equal Protection versus the Politics of Inequality

As we await the Supreme Court’s decisions in these cases, Americans should not miss the big picture of this constitutional moment.  In a society that disenfranchised African-Americans and other minorities for centuries and discriminated openly against racial minorities and the gay and lesbian population, we are living through giant progressive changes in political democracy and voting rights, educational opportunity, and marriage rights for all. Yet, in politics, as in physics, every action creates an equal and opposite reaction, and a huge ideological undertow has formed on today’s Supreme Court, which has replaced the values of the long-ago Warren Court with commitments to corporate power over government and government power over people. What is at stake in these cases is whether the Supreme Court will interpret the Constitution to be the instrument of equal protection for all or will twist it to make it the guarantor of inequality and injustice.

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Jamie Raskin, a Senior Fellow at People for the American Way Foundation, is a professor of constitutional law at American University’s Washington College of Law and a State Senator in Maryland.


 

 

FRC Blames Rise in Military Sexual Assault on DADT Repeal

In his daily email yesterday, Family Research Council president Tony Perkins expressed concern about the rising rate of reported sexual assault in the military….which he blamed on the repeal of Don’t Ask, Don’t Tell:

President Obama is finally admitting that sexual assault is a serious problem in the military--but what he hasn't conceded is that his policy on homosexuality helped create it. According to a new Pentagon survey, most of the victims were not female (12,000 incidents), but male (14,000)--highlighting a growing trend of same-sex assault in our ranks. Although the Defense Department says it "recognizes the challenges male survivors face," one of the biggest problems is their silence in reporting it. The Washington Times, one of the first to highlight the discrepancy, explains that the Pentagon's attention is largely focused on the females experiencing abuse "overlooking the far greater numbers of men, who, according to the survey, are being victimized but not reporting it."

How could this happen? Well, for starters, the Obama administration ordered military leaders to embrace homosexuality--completely dismissing the concerns that it could be a problem to have people attracted to the same sex, living in close quarters. What's more, explains Marine Capt. Lindsay Rodman, the statistics aren't reliable and may be hiding thousands more cases of service-based abuse. "The truth is," she writes in the Wall Street Journal, "that the 26,000 figure [of victims] is such bad math--derived from an unscientific sample set and extrapolated military-wide--that no conclusions can be drawn from it." Except one, perhaps, which is that groups like FRC were right to be concerned about the overturning of "Don't Ask, Don't Tell."

Sexual assault of males in the military is a serious problem. But it hasn’t been caused by President Obama’s “policy on homosexuality” and neither is there any documentation of “a growing trend of same-sex assault in our ranks.”

Not only is the rate of sexual assault much higher for women in the armed forces than for men, since they make up a much smaller percentage of the active-duty force, but the recent increase in sexual assault has primarily impacted female servicemembers.  According to CNN, “The Defense Department data from 2010 to 2012 found that the prevalence of unwanted sexual contact increased for active duty women and remained unchanged for active duty men.”

Yesterday, Perkins’ colleague Jerry Boykin similarly blamed the increase in reported sexual assaults on the repeal of DADT and the policy allowing women in combat.

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