Major LGBT rights and progressives groups, including Lambda Legal and the ACLU, have withdrawn their support for the Employee Non-Discrimination Act (ENDA) that seeks to ban workplace discrimination against LGBT workers in the private sector, because ENDA includes a broad exemption for religious organizations, including religiously affiliated hospitals and charities, for instance. The act passed the Senate last year, when it was supported by these same groups, despite the religious exemption.
But after the Supreme Court’s Hobby Lobby ruling, finding that closely held businesses run by their owners on religious principles (but not necessarily religiously affiliated) need not be forced to purchase certain contraceptives for their workers, the left has found an issue.
ENDA, of course, appears to have no chance of being brought up in the GOP House, and the House is going to stay GOP controlled for the foreseeable future. So much of this is about ensuring that the president’s upcoming executive order banning anti-LGBT discrimination among federal contractors doesn’t provide a religious exemption, except perhaps to houses of worship, and some would probably not want to see even that.
I don’t think business owners should be forced by the state to violate their religious consciences, and I am even more wary of the state telling religious organizations who they can hire, fire, or promote to leadership. But the issue becomes clouded when these organizations accept taxpayer money to serve the state.
Nevertheless religious organizations, or even private companies that can demonstrate they are run on religious principles, represent a tiny fraction of the workplace. And much of this controversy feels manufactured with the aim of inducing a certain amount of politically useful hysteria on the left.
More. Some politicos tell me that, at least before this latest contretemps, ENDA had enough GOP support in the House to pass if the leadership would allow it to be brought up for a vote. But that’s conditioned on a broad exemption for religiously affiliated organizations. So apart from pressuring Obama not to provide a meaningful religious exemption in his executive order, another result of the LGBT and progressive groups withdrawing their support for ENDA, as currently conceived, is to ensure that it has no chance of passing the House even if brought forward, thus keeping the issue of a “pure” ENDA alive for another round of Democratic electioneering and fundraising.
ENDA, it should be noted, languished in committee when Democrats controlled both houses of Congress during the first two years of the Obama presidency (2009-10), even as it appeared Republicans were likely to retake the House in the November 2010 midterm election, during which the party appealed to gay voters for funds and support (wait for it) in order to pass ENDA in the next Congress. Yes, kiddies, it’s all about politics and mobilizing the base, and always has been.
Furthermore. As the Washington Post article linked to above reports, the Human Rights Campaign is the outlier among LGBT groups, maintaining its support for a passable ENDA with a religious exemption clause. HRC very much wants, eventually, to claim a victory for ENDA, its top legislative agenda item. Other LGBT groups with rival fundraising operations, however, don’t see their interests aligned with passage anytime soon.
38 Comments for “The ENDA Brouhahah, Again”
posted by Tom Scharbach on
I hate to say this, but legislation can become so crippled by exemptions and exceptions that enacting it would do more harm than good.
The proposed version of ENDA has reached that point. An exemption that permits any business owner with a so-called “religious objection” to hiring gays and lesbians is not functionally different than no protection at all.
posted by Mike in Houston on
Time to simplify the effort to: ADD THE FOUR WORDS.
Add sexual orientation and gender identity to the Civil Rights Act… putting the two on the same level as religion, race, etc.
posted by Mike Alexander on
I have no idea why anyone was even talking about it… It’s not like it stood any chance of passing anyway.
posted by Houndentenor on
Not only will it not pass the House, it won’t even be allowed to come up for a vote. It’s a huge waste of time while there are things that can be done and should be done that will be ignored. HRC is so focused on their Washington shell game they can’t even see what is actually important.
posted by Houndentenor on
What difference does any of this make? So what if some Republican Congressmen claim they would have voted for the bill if only Boehner had let it come up for a vote. He didn’t and he wouldn’t. So it doesn’t matter. (Yes, I suppose if it were my district it would make me more likely to support that candidate. In fact I wish there were gay candidates so pro-gay running to support my interests in Washington and Austin, but there are not.) It’s all moot and not worth the ink and bandwidth that has been spilled over it. Instead we should be mobilizing to save the nondiscrimination ordinance recently passed in Houston. Or other state and local issues where something productive could actually be accomplished. We cannot get anything through a House controlled by the GOP and everyone knows that. But there are states and cities where pealing off a few GOP politicians could result in something tangible. I am sick of the political games and cheap talk. Why are we so focused on the impossible when there are possibilities to be had at the state level?
posted by Tom Scharbach on
I am sick of the political games and cheap talk. Why are we so focused on the impossible when there are possibilities to be had at the state level?
Read Stephen’s post. It contains the answer to why this is as perennial as Carl DeMaio: “Yes, kiddies, it’s all about politics and mobilizing the base, and always has been.“, or, in Stephen’s case, it is all about criticizing Democrats while ignoring the Republican sop to the base.
posted by Jim Michaud on
Tom, funny how you mention Republican sop to the base:
http://www.indystar.com/story/news/politics/2014/07/09/state-recognize-june-marriages-sex-couples/12410207/
posted by Tom Scharbach on
Mike Pence just bought himself a lawsuit, not to mention a pig in a poke. From a news article yesterday:
posted by Lori Heine on
So the workplace administration of health insurance–a concept that the corporate world liked fine for decades, because it enabled them to keep ahold of their employees by the short ones–is turning out to have been a stupid idea. Duh.
Now, of course, further government action is “required” to fix the mess that has been made by Obamacare. A mess that wouldn’t have been there (at least in this aspect) had corporations never administered employee health insurance in the first place.
The concept of letting individuals pay for their own coverage as individuals (which does not need to be accomplished via government, but could be done directly through insurance companies) is being ignored. Nobody would have to strongarm anybody, so we’re not interested. Even though that would drive down the cost of healthcare–which rocketed through the roof, in the first place, because there’s always somebody with gobs of cash footing the insurance bill.
Single-payer, incidentally, would not change that. Sugar Daddy would become the government, instead of the insurance companies.
And in the latest round of childish hysteria from the social right, centuries of legal precedent is being (ignorantly) disregarded, so “closely-held” corporations (a fiction) can be seen a persons. The prospects have socialists salivating. Finally, they may have hit upon the way to bring the Goliath corporations down. If the officers in corporations are no longer able to shield themselves from liability as individuals (and of course, if they’re “persons” in one legal sense, they can be proved to be persons in another), no corporation will long be able to survive.
Get the popcorn. The show is going to be good.
posted by Mike Alexander on
It’s funny… The Hobby Lobby ruling makes religion a protected class, one that has special rights and exemptions to the laws above others…
It’s….
So…
Animal Farm-ish! 🙂
posted by Don on
You know, ENDA is going to make a hardcore conservative out of me. The small-government kind. With each passing debate, I find it harder and harder to believe it’s even necessary anymore. Yes, I live in a “liberal enclave” of Miami. But I’ve noticed I don’t have the trouble I once did being an out gay man getting work and thriving. Do I need this law? Do many other people?
I have to turn to the whole brouhaha in South Carolina when the mayor fired the lesbian sheriff. She got her job back. The mayor was humiliated. IN SOUTH CAROLINA.
That makes me step back and rethink the state of our culture. And to question if this is the right way to go. Other non-discrimination laws have kept the resentment alive. There is a segment of any population that is inherently defiant. Make a rule, they have to break it. Set a standard, they defy it. And solely for defiance’s sake.
Either way, there will be a rump that will try to marginalize and agitate against gays. Whether it is gays themselves or the laws themselves. And isn’t this the inherent conservative position? Water seeks its own level? Work somewhere else? Go get someone else to bake your wedding cake?
While I frequently take conservative positions on a variety of issues, I just don’t think I can bring myself to ever say I’m a Republican. And the reason is that my entire adult life they have been Team Mean. Black? You’re lazy. Hispanic? Go home. Woman? Quit complaining and get back in the kitchen. Gay? Vile pervert.
I just have such a hard time joining a movement that attracts such mean-spiritedness. Sure politics on both sides can be harsh. But the bigots only have one home. And they’re welcomed “home” on a regular basis.
posted by Aubrey Haltom on
“Other non-discrimination laws have kept the resentment alive.”
No, Don. It’s not the ‘non-discrimination’ laws that keep the resentment alive. It’s the bigotry and prejudice behind the resentment that keeps it alive.
You take one instance – yes, in South Carolina – which involves small town politics (the mayor was already insanely unpopular) and assume the new narrative for lgbt is that we’re all culturally equal?
I live in Boston now. But I have lived in Tennessee, Texas and Louisiana. I know first hand how the Civil Rights Act has impacted the lives of those who would not have had any legal recourse to blatant (and not-so-blatant) discrimination.
The non-discrimination laws have set a certain legal standard that has, over time, moved the culture forward. Is there resentment from a certain class? Of course. As you mentioned, some people are just ‘defiant’ and don’t want to be told what they can and can’t do. But our legal standard is not fixed to those who are inherently ‘defiant’. If it was, we’d have no laws at all.
Rather, as a society we’ve found – through some harsh and horrific experience at times – that we function better as a country if we set some ‘equal’ playing rules for people and businesses in the marketplace. In that public arena that is regulated by the government.
The blowback we’re seeing re: lgbt rights is remarkably similar to the blowback against other minority rights.
Rather than run from the blowback, or let our direction be determined by those who don’t want to include us at all, we need to realize this ‘resentment’ for what it is.
I live in Massachusetts, though I’m not from here. What I found was that the non-discrimination laws in this state – which added sexual orientation in the late 80s – provided a groundwork for marriage equality.
Prior to the Massachusetts ruling which legalized marriage equality in this state – the state citizens had 25-years of non-discrimination law which included sexual orientation. i.e., for 25 years, a gay or lesbian knew they would not lose their job for being gay or lesbian in this state. They couldn’t be denied housing in MA for being gay or lesbian. They couldn’t be denied services in MA for being gay or lesbian.
That kind of security allowed the gay and lesbian citizens of this state to come out without fear of reprisal in the above described ways. Most of the longtime political activists in MA point to that moment in the late 80s when the non-discrimination law went into effect as the real starting point for marriage equality in this state.
Compare MA to a state like Texas (my mother’s home and current state, where I’ve lived in the past for many years). In Texas a person can be denied employment, housing and services for being lgbt.
Now Stephen Miller is fine with this. He thinks a business should be allowed to discriminate against us (against anyone?) if they want. Unfortunately, that approach condemns a large number of gays and lesbians to living secretive lives – because of the very real fear of legally sanctioned reprisal. (e.g., the restaurant in East Texas which has the ‘no fags served’ signage. It’s not against the law to refuse service. And no – the restaurant wasn’t shamed. They were applauded by much of the East Texas populace.)
btw – I’ve read that the conservatives in the Kansas legislature are taking the Hobby Lobby ruling as an ‘ok’ for them to re-introduce the ‘it’s ok to discriminate against gays’ bill they tried to do not that many months ago.
Contrary to Stephen Miller’s assertions – the conservative and religious right are using the Hobby Lobby to scream that they now have the SCOTUS-certified right to discriminate against gays and lesbians. There will be numerous lawsuits filed following that logic. Will SCOTUS keep its word from the Hobby Lobby ruling that this corporate right to religious belief only applies to the ACA’s contraception mandate? Well, they’ve shown in the immediate aftermath of their Monday ruling that they can’t be taken at their word (see Sotomayor’s dissent from Thursday’s ruling.) So don’t hold your breath.
Anyway. I think there’s nothing but evidence that the lgbt community – as a minority community – needs the legal support of a strong ENDA. We need the same legal protections that are afforded classes of people determined by religion, race, gender.
posted by Houndentenor on
If we hadn’t had non-discrimination laws in the 60s most businesses would have continued to refuse to hire African Americans. That’s just a fact (one confirmed by older relatives who were told they could not hire qualified applicants because of their race.) These laws were necessary and to imply otherwise is just ignorance of our country’s history.
posted by Don on
And nothing has changed socially since the 1960s or the 1980s? I can tell you in the late 80s I could have used the law. But I just got another entry-level college job a day later.
I am well aware of the arguments for the laws. I even advocated them vociferously at one point. But I am simply wondering aloud whether they are as needed as they once were. The arguments you are advancing are absolutely brilliant for 1991. We may not have changed enough, but even Republicans on the Hill hire gay staffers to aid in their anti-gay agendas. And most people know it. This ain’t the Gingrich/Dole years.
And given the success rate HRCF (oops, that was when we were just G&L, not LGBTQ and they hadn’t dropped the “F” yet) I mean, HRC, has had with the law, we should be about $250 million and 18 years away from passage.
I’m just dropping out of the chorus that says this appears to be worth it anymore. We have gone from a country where anyone could be fired for any reason to one where 75% of Americans think it is already illegal to fire gay people.
Hell, we’re filing for marriage benefits before we have workplace protections. Really? I mean, WTF?
posted by Aubrey Haltom on
Obviously things have changed since the 80s, early 90s.
In fact, here’s some change for you: the State of Mississippi’s ‘anti-gay’ bill (‘it’s ok for businesses to discriminate against lgbt’) officially went into effect yesterday. Conservative legislators in Kansas are trying to reintroduce the ‘anti-gay’ discrimination bill again (post- Hobby Lobby ruling). TN still wants to push through the ‘you can’t say gay’ bill. If you read any of the anti-gay press, any of the religious right’s media releases, you’ll find the Hobby Lobby ruling has reinvigorated a rush to pass more anti-gay, right-to-discriminate against lgbt legislation.
So, yes, things have changed. In some places, they’ve changed so amazingly for the better. One could have said the same for any of the minority groups that were included in the original Civil Rights Act, prior to the Act’s passing.
The fact that some states provide legal equality does not negate the fact that many states still do not. Whether “75%” (or more) of the polled populace believes it is illegal to discriminate against lgbt doesn’t matter, really. When you have state after state looking at how they can get pro-discriminatory legislation passed.
And the brouhaha over the Hobby Lobby ruling can be found in Justice Ginsberg’s and Justice Sotomayor’s dissents from last week. It is the very real potential for expanding the ‘right-to-discriminate’ that is the real concern.
It doesn’t help that Justice Thomas is on official record (in an opinion on a recent ruling) stating he believes individual states should be able to declare an official religion. (Thomas says the First Amendment only applies to the Federal Govt. He thinks states should be allowed to create official state religions.) Justice Roberts was picked for his long-term opposition to anti-discrimination and affirmative action laws. Justice Scalia has also written opinions that consign religious rights to those religious communities with majority populations. The same rights don’t necessarily apply to any religious belief for Scalia – no matter how sincerely held.
We as a community could face a strange situation in the next couple of years. Where SCOTUS might rule that we have a constitutional right to marriage. But we can still be denied employment, housing and services in 29 states.
Don, you seem to think that the lgbt community in those 29 states don’t deserve the same protections that both the majority and other minority communities have in those same states. I disagree.
posted by Jimmy on
“Yes, I live in a “liberal enclave” of Miami.”
Of course. If you don’t personally stand to suffer, why bother? But then, why would anyone be so unfashionable and backward as to live in a place that isn’t so welcoming and conducive to living life openly?
Another round of mojitos!
posted by Don on
My point has simply been missed. I don’t believe “they don’t deserve the same protections” at all. I just don’t think those protections are that meaningful anymore. If we were talking transgendered, totally different story.
But no one is talking about the backlash against legal protection and that consequence. Not a peep. And THAT was my main point. We pay a price for getting legal protection that singles us out as a group.
As for the snark about my living in Miami, I only live there now. I was out, proud, and pioneering the way years ago in some of the most backwater parts of the country. And guess what? I wasn’t afraid then, either.
Fear is the real problem here. And what I learned as a very young man is that these people are full of fear and will only pounce when they smell fear themselves. That is actually how I avoided many of the pitfalls described here. Not legislation protecting my right to work.
posted by Jorge on
Yes, kiddies, it’s all about politics and mobilizing the base, and always has been.
Hmmmm, no. No, no, no…
What issue is there currently a pitched fight over? Immigration reform. Senators Lindsey Graham and Chuck Schumer put their big brains of skillful Capital Hill maneuvering and research together and said: “Now is the time. Let’s figure out how to do it. We figured out how to do it!” And they’ve been sticking to their guns. There are a lot of reasons, social, economic, electoral, and moral, for immigration reform to be advocated, even against severe opposition. Indeed, the opposition is itself a reason, for it points to other current problems that demand a solution.
So it’s not just political expediency. How serious the need is helps determine how much side is willing to do to solve the problem at an uncomfortable cost.
The Hobby Lobby decision has made a lot of people uncomfortable. If employment discrimination came with just as compelling a narrative as… people who have been in this country since they were toddlers not being able to be integrated into the work force, unaccompanied minors being herded into holding camps, and strong families being randomly broken apart or forced to leave… then our Democratic and Republican elected officials would be walking tightropes at each other to bridge that comfort gap.
I just have such a hard time joining a movement that attracts such mean-spiritedness. Sure politics on both sides can be harsh. But the bigots only have one home. And they’re welcomed “home” on a regular basis.
Your words would describe, better than I can, why I refuse to align with progressivism.
posted by Houndentenor on
Republicans have no intention of reducing the number of illegal workers in the US. Too many donors to both parties love this cheap and abusable labor (they can’t complain about working conditions without risking deportation). This is an elaborate charade from everyone. They will look busy but do nothing to upset the industries that line their pockets to keep things exactly as they are.
posted by tom Jefferson 3rd on
1. Equal opportunity in the workplace is a serious issue, so is Religious freedom. Sometimes people are quick to dismiss people concerns or personal experiences.
When you say that a business can ignore any rule that the owner disagrees with, you are going to cause headaches for lots of people and the law.
This is a Ayn Rand-libertarian idea; namely that a business is essentially a sovereign nation, and the government cannot regulate it. It is not a good idea.
posted by tom Jefferson 3rd on
2. Much has been said here about religious exemptions. I am not automatically opposed to them, but I feel that many of their proponents are only big on religious freedom when it’s their church and their beliefs.
I also feel that certain real world challenges are raised with such exemptions, and they need to be talked about by actual mature and same adults.
In some sense it’s similar to ballot access. We cannot print every qualified candidates name on the ballot. Even though their are First Amendment interests involved with being a candidate or voter.
We cannot let anyone ignore a rule that they dislike, as long as they got a religious or denominational justification.
posted by Houndentenor on
It depends on how broad or narrow the exception might be. I want the same ones in other nondiscrimation laws. Obviously the government should not force Baptist churches to hire gay preachers. It can’t force them to hire women for such jobs or anyone else. It’s not so much the general idea of some sort of exemption as it is the actual wording that would concern me. Moreover, since the only objection to homosexuality these days seems to be religious, a religious exemption would make the entire bill pointless.
posted by Jorge on
Much has been said here about religious exemptions. I am not automatically opposed to them, but I feel that many of their proponents are only big on religious freedom when it’s their church and their beliefs.
*Shrug.* That’s how the legal system tends to work. I complain. A judge makes the decision. Political questions aren’t like that.
So the Hobby Lobby decision rests on a bill passed by Congress? What can ya do?
We cannot let anyone ignore a rule that they dislike, as long as they got a religious or denominational justification.
That’s the kind of blanket statement that doesn’t fly in a court of law unless you have evidence to back it up. The Supreme Court ruled that the government failed to show it is unable to permit Hobby Lobby to ignore the rule on religious objections. It may be true that the government cannot provide employee health care coverage of abortifacents while also respecting Hobby Lobby’s objections. But it probably isn’t.
Damned evidence. It makes everyone’s life harder.
posted by Lori Heine on
Noam Chomsky remarked that the corporation is “maybe the most totalitarian institution in human history.”
Chomsky also noted Thomas Jefferson’s warning, very early in our nation’s history, that “if power was going to shift into the hands of what (Jefferson) called ‘banking institutions and moneyed incorporations,’ then the democratic experiment would be over: we’d have a form of absolutism worse than what the colonists had struggled against.”
The Hobby Lobby “Hey, we’re people!” moment may be a chink in Goliath’s armor. This may turn out to be the moment progressive libertarians have been waiting for. Don’t be so sure it’s going to turn out to be a tragedy.
I’ll say it again. If person-hood is to be defined as moral agency–as the Hobby Lobby crowd insists–then of course those moral agents are responsible when they pollute, destroy, cheat, steal and kill.
They will try to have the one interpretation without the other. But they can’t get away with it–if enough Americans force the issue.
posted by Tom Scharbach on
The current version of ENDA, with broad religious exemptions applicable only to gays and lesbians but no one else, violates “equal means equal”.
I recognize the importance of employment non-discrimination, but I think that the ACLU and Lamba Legal are right — the current version is not acceptable.
We are rapidly moving toward the point where broad-scale employment discrimination against gays and lesbians will be culturally unacceptable to Americans, if it is not already. All we will accomplish by passing the current version of ENDA, which functionally allows those who would discriminate to do so, is to create a special right of broad discrimination against gays and lesbians in our laws.
What is the point of that?
posted by Houndentenor on
Typically, no comment here on this:
http://s3.amazonaws.com/static.texastribune.org/media/documents/2014_Republican_Party_of_Texas_Platform.pdf
Specifically this (from p. 14):
Homosexuality- Homosexuality is a chosen behavior that is contrary to the fundamental
unchanging truths that have been ordained by God in the Bible, recognized by our nation’s
founders, and shared by the majority of Texans. Homosexuality must not be presented as an
acceptable alternative lifestyle, in public policy, nor should family be redefined to include
homosexual couples. We believe there should be no granting of special legal entitlements or
creation of special status for homosexual behavior, regardless of state of origin. Additionally,
we oppose any criminal or civil penalties against those who oppose homosexuality out of faith,
conviction, or belief in traditional values.
Reparative Therapy- We recognize the legitimacy and efficacy of counseling, which offers
reparative therapy and treatment for those patients seeking healing and wholeness from their
homosexual lifestyle. No laws or executive orders shall be imposed to limit or restrict access to
this type of therapy.
posted by Don on
Maybe I’m just getting tired of some of this stuff. But after Hobby Lobby, I’m all for write whatever law you want to protect the nation’s four fundamentalist Christian wedding cake bakers.
I feel sorry for the one clerk at the one Hobby Lobby store that might have applied for the IUD for her healthcare plan and now has to go outside her employer to get Obamacare to have it covered.
Is it just me, or is a lot of this stuff starting to drift toward “the arguments are so fierce because the stakes are so small?”
posted by tom Jefferson 3rd on
(sigh) equal opportunity rules are still important and still necessary.
People who may be upwardly mobile-highly educated may simply be able to relocate to a trendy, gay-friendly neighborhood or quickly find
an eager new employer. For such people, I can see why they don’t see the need for ENDA or something similar for say, housing discrimination. I don’t agree with them, but see where they get their assumptions.
Yes, things have changed. However, this type of discrimination is still a problem for many people.
Yes, many people may believe that federal law already deals with sexual orientation based discrimination. That may provide some assistance for a gay employee, depending on the social climate, but, to be fair, lots of people also believe that Elvis Presley is still alive…
A boss almost certainly knows whether or not sexual orientation is covered in the federal civil rights law. Especially if they are of sufficient size to have a remotely competent legal department.
posted by Jorge on
Time to simplify the effort to: ADD THE FOUR WORDS.
Add sexual orientation and gender identity to the Civil Rights Act… putting the two on the same level as religion, race, etc.
…
The current version of ENDA, with broad religious exemptions applicable only to gays and lesbians but no one else, violates “equal means equal”.
Are the problems and solutions of 50 years ago really what we need to be using as a reference point? Did the past 50 years of history never happen? Is there nothing we can learn from it?
Not only do I think we need to add words to civil rights laws as they apply to gays, I think we need to take away words, too. Title-whatever funding for sports? That’s obviously not going to happen. Equal pay? Irrelevant. Disparate impact laws? That should not apply at all. And I think the restrictions on blood donations need to be lifted by the whatever agency’s involved, not by Congress.
So the Texas Log Cabin Republicans walked away with nothing, did they?
Well. At least they’re still alive. (Extreme bitterness.)
Is it just me, or is a lot of this stuff starting to drift toward “the arguments are so fierce because the stakes are so small?”
Hmm……
I suppose it’s easy to be a hyperpartisan shrill when elections are decided more on base turnout than anything else. If there’s no risk, why hold back?
I think a big part of it is that most of the people who are speaking (I do not mean the politicans) are so small-minded.
posted by CraigR on
The last thing we need is to add sexual orientation to the Civil Rights Act, requiring employers to perform disparate impact analyses and to report to the federal government on numbers of LGBT workers hired in relation to candidates, and to institute preferential treatment if those numbers aren’t high enough.
posted by Tom Scharbach on
On a side note, we’ve had interesting developments in the 7th Circuit cases involving marriage equality in Indiana and Wisconsin.
Of the states in the 7th Circuit, three (Illinois, Iowa and Minnesota) are marriage equality states. District Court decisions in favor of marriage equality have been handed down in the other two (Indiana and Wisconsin) in recent weeks, and appealed to the 7th Circuit (Indiana’s notice of appeal was filed several weeks ago, and Wisconsin’s notice of appeal was filed yesterday).
The court consolidated the Indiana and Wisconsin appeals yesterday, and put the appeals on a fast track. All briefs are due on August 4th, about three weeks from now. Oral argument have not yet been scheduled, but it looks like the argument will be scheduled around Labor Day, if not earlier, and a decision is expected in October. By federal circuit court standards, the court has ordered the case to move forward at warp speed.
The three-judge panel, which is chosen at random, is even more interesting. The case is assigned Judges Posner (appointed by President Reagan), Williams (appointed as a District Judge by President Reagan and appointed to the 7th Circuit by President Clinton) and Hamilton (appointed as a District Judge by President Clinton and appointed to the 7th Circuit by President Obama).
Given that the 7th Circuit is considered the third most conservative circuit in the country (with 7 of the 10 judges appointed by President Reagan or President Bush II, and 3 appointed by President Clinton or President Obama, and two (Easterbrook and Sykes) members of the Federalist Society), a Posner-Williams-Hamilton panel is about as favorable a panel as we could get from the 7th Circuit.
Indiana’s Attorney General, Greg Zoeller, petitioned the 7th Circuit yesterday to have the entire appeals court, rather than the Posner-Williams-Hamilton panel, hear the case. To petition to move the case to the entire court before the three-judge panel hears and decides the case, rather than appeal the panel decision to the entire court, is a very unusual move, and suggests to me that Zoeller can see handwriting on the wall.
posted by Tom Scharbach on
The 7th Circuit set oral argument for August 13th today.
This has to be something of a “fast track” record for the 7th Circuit. Notice of appeal filed July 10. Briefing set for August 4. Orals set for August 13. In a nutshell, that’s slight over a month for the entire process. I wouldn’t be surprised, given the light speed with which this is moving, to see a decision by mid-September.
In another development, Wisconsin’s Attorney General, J.B. Van Hollen followed Indiana’s lead and has petitioned for a hearing by the full court, bypassing the Posner-Williams-Hamilton panel.
Interesting.
posted by Tom Jefferson III on
1. ENDA is probably not going to happen anytime soon. Yeah, it sucks, but it is true. It has a better chance of happening with a Democratic Party majority in both the House and Senate (would love it if that was not the case), but even then the problem is the fact that their are enough districts were voters tend to elect candidates who have “right-wing” views on social issues, to ensure that supporting the ‘gay agenda’ is seen as political death for whomever holds the office.
2. Justice Scalia cited the lack of ENDA is a good standard in terms of Constitutional case law. Basically, the fact that ENDA had not gotten passed, mean, in his mind, that society had not really changed its attitudes. So, from a pragmatic matter getting a decent ENDA bill passed might give me worth wild.
3. A good friend of mine was fired from a fairly major chain/retail store in Fargo, North Dakota. It happened right after they found out that she was gay. Now, had their been some sort of civil right protections for her, maybe she would been judged on her merits or at least would have had some sort of protection to fall back on. Instead she got fired and (as a result) lost her apartment.
posted by Tom Scharbach on
Justice Scalia cited the lack of ENDA is a good standard in terms of Constitutional case law. Basically, the fact that ENDA had not gotten passed, mean, in his mind, that society had not really changed its attitudes.
Justice Scalia’s reference to ENDA was a building block in his Lawrence dissent/diatribe:
I doubt that ENDA’s non-passage will carry much weight, even with Scalia.
Since Justice Scalia’s dissent was written in 2003, a lot of water has gone over the dam: Marriage equality became the law in 19 states, DADT was repealed and the military seems none the worse for it, the Boy Scouts modified discriminatory policies to allow gay scouts, Section 3 of DOMA was declared unconstitutional, and several executive orders (e.g. the pending EO applicable to federal contractors) and policy positions (e.g. EEOC policies encouraging gays and lesbians to file complaints) mitigate the absence of ENDA.
I will be very curious to read Justice Scalia’s and Justice Alito’s dissents in the equality cases coming before the Supreme Court going forward.
posted by Jorge on
I will be very curious to read Justice Scalia’s and Justice Alito’s dissents in the equality cases coming before the Supreme Court going forward.
Requiring all states to recognize same sex marriages is quite a ways more radical than prohibiting any state from criminalizing it. I think there’s a good chance you will be disappointed.
posted by Tom Scharbach on
Requiring all states to recognize same sex marriages is quite a ways more radical than prohibiting any state from criminalizing it.
Prohibiting a state from criminalizing what? Marriage? As far as I know, only a few states (Wisconsin is one that does, if the marriage was contracted by a Wisconsin resident out-of-state) criminalizes same-sex marriage. And, as far as I know, none of the cases going forward involve the question of criminalization of same-sex marriage.
I think there’s a good chance you will be disappointed.
In what way? Do you think that Justice Scalia and/or Justice Alito will join in an opinion mandating marriage equality nationwide?
posted by Tom Jefferson III on
Justice Scalia believes that States have the right to Constitutionally ban the enactment of any local or state sexual orientation-based non-discrimination laws (1996) and that a State has every right to criminalize homosexuality itself (2003) (he also seemed to imply that he had no problem with a law against “self-abuse”).
Based on these two opinions, I doubt that he going to oppose a state ban on gay marriage.
posted by Tom Jefferson III on
Also, the issue if frankly more complex when simply “the big bad government telling a poor, downtrodden religious organization” whom they can and cannot hire.
For starters a “religious organization” is not limited to say an actual church (temple, synogue or mosque) or something like a church-affiliated charity or non-profit.
In America, just about any medium – large business could probably claim to be a “religious organization”, if they wanted to get around a rule. Do this mean that religious exemptions are always bad? No.
However, you want to be very careful about how something like a “religious organization” gets defined in the law and how it is going to apply to ALL religions, sects and denominations.