Delayed for Now

More. LGBTQ activists have been supporting the proposed Equality Act, which would explicitly include LGBT Americans in the Civil Rights Act, providing protection from housing, employment and public-accommodations discrimination under federal law. The Equality Act also includes a provision revoking any protection that religious objectors might enjoy under the federal Religious Freedom Restoration Act.

In that regard, including sexual orientation and gender identity under Title VII would be preferable to the damage to liberty rights that the Equality Act would impose.

In July I wrote The Civil Rights Act and Sexual-Orientation Discrimination.

Also, from last October, The Rejection of Compromise: Take Two.

8 Comments for “Delayed for Now”

  1. posted by Tom Scharbach on

    The Title VIII case will not be decided until after Justice Kennedy has retired and been replaced with a Justice who can be expected to vote in a 5-4 majority against reading Title VII to include sexual orientation.

  2. posted by JohnInCA on

    Similar to my position regarding public accommodations, I’d be a lot more willing to accept the lack of employment protections if our chief aggressors -the religious- weren’t already protected.

    If you believing X, whatever X may be, is a good enough reason for you to fire me, then you believing X, whatever X may be, should be a good enough reason for me to fire you. But me having to ignore X when considering you, while you get to keep X in mind while considering me? Not acceptable.

  3. posted by Lori Heine on

    It completely escapes these virtue-signalers for “religious freedom” that what the anti-gay right has repeatedly shown it wants to do is limit freedom of conscience for everyone else.

    It wants the government to specifically spell out what is protected as religious freedom and what is not. And homocon virtue signallers are too stupid to grasp that once government gains the ability to do that, it effectively assumes the place of God. Then it is the dispenser (and limiter) of rights, instead of God. Rights and freedoms are no longer seen as inherent–endowed by our Creator (or by Nature).

    This will not work out well for the anti-gay conservatives. They are too stupid to recognize this. Hubris will get the better of them–as it always does–and they will overreach. A backlash will inevitably follow. And probably in the space of a single election cycle, people hostile to their religion will be voted in. Then that awesome, godlike power to determine where the seashore begins and where it ends will belong to their enemies.

    Still these morons think, “Hey, what could go wrong?”

    Plenty will go very, very wrong. And it won’t take long for it to happen.

  4. posted by David Bauler on

    I wasn’t surprised that the USSC decided not to take the case. The argument that “sex” covers “sexual orientation” has merit, but their hasn’t been as much US case law on the subject.

    Congress could pass legislation to explictly protect gay people and or transgender people, but I doubt that is going to happen.

    The GOP leadership doesn’t want to risk alienating socially conservative voters [it’s a sin] or the economic libertarian [it’s un-freedom].

    They, may try to sell the idea that they would pass a “reasonable” bill, but that just seeks to toss around the political hot potato.

    Electing a Democratic majority doesn’t necessarily get the bill passed. Mainly because Democrats in more conservative districts cannot appear to be “liberal” on social issues.

  5. posted by Tom Scharbach on

    Congress could pass legislation to explictly protect gay people and or transgender people, but I doubt that is going to happen.

    I doubt it, too.

    Sexual orientation is a protected class in a minority of states, and no change is seems likely in the 29 states that do not currently protect sexual orientation under public accommodations laws. Why would representatives from those states stick their necks out?

    Republicans are a fractured party right now, fighting each other tooth and nail.

    Republicans in Congress are running scared of primary challenges, conservative Christians and the Alt-Right seem to be converging as the party aligns closer and closer to the far right fringe, moderates are moving away from the party, and the President has made it clear that he isn’t going to lift a finger on behalf of gays and lesbians.

    Under those circumstances, I just can’t imagine that many Republicans in Congress are going to risk a primary challenge by supporting public accommodation protection for gays and lesbians.

    I don’t think that Democrats will take the House. It is possible that Democrats will take the Senate, but only by the slimmest of margins (maybe 51-49). Significant Republican support would be needed to pass a bill in the House, and that is also true in the Senate, given the 60-vote rule.

  6. posted by Jorge on

    “One big LGBT discrimination case was enough for now, but eventually the court will have to decide whether Title VII sex discrimination can be interpreted to include sexual orientation discrimination.
    If so, then the forthcoming Masterpiece Cakeshop ruling will determine if federal antidiscrimination law (and not just state and local ordinances) can be used to force small business owners to provide creative services for same-sex weddings in violation of their religious beliefs.”


    A good reason why the Justices may have declined to take the case is because the executive branch has not come to a decision yet. It is still possible it might. We had the Obama administration determine one thing, and very shortly after that the Trump administration say something else. Might want to give the government some more time with the issue.

    Why? Because there are two questions at play here:

    Whether the executive branch and the courts can interpret Title VII to cover sexual orientation (based on a reasonable, if liberal regulatory interpretation of the law), or whether they must interpret Title VII to cover sexual orientation (based on the text of the law overruling any conservative interpretation of the law).

    The former type of ruling would be a disaster, creating a situation in which the executive branch isn’t enforcing the law, but actually deciding what it is. Best to avoid that trap if at all possible.

    (Isn’t that the trap we’re in now?)

    No need to sink ourselves even deeper.

  7. posted by Tom Scharbach on

    The Equality Act also includes a provision revoking any protection that religious objectors might enjoy under the federal Religious Freedom Restoration Act.

    The effect of Equality Act in that regard will be remove the religious objection test from the Sherbert/Yoder “substantial burden, compelling state interest, least restrictive means” test legislatively imposed by RFRA, and apply instead the constitutional test imposed by Employment Division on laws of general application, which means that the Employment Division “rational basis” test would be applicable.

    The Employment Division “rational basis” test is, I believe, the applicable Colorado test. See Free Exercise and Laws of General Application for background on the two tests if you are interested.

  8. posted by David Bauler on

    In North Dakota the equality bill was broken into separate pieces. So, that if their were objections to public accommodation part, maybe their were enough votes for employment and housing.

    None of the bills passed. Which is why I am skeptical of this idea floated by gay homocons that we just need a “reasonable ” bill in order to get it passed.

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