hunter of justice

Merry Christmas 2009

2009-12-25T11:04:31-05:00

I guess times were tough all around this year ...

Hope your Christmas day and winter holiday are better than his are going to be!

NY State employees gain gender identity protection

2009-12-18T17:08:34-05:00

Governor David Paterson of New York signed Executive Order 33 on Wednesday declaring that state government employees shall not be subjected to discrimination based on gender identity. The state already prohibits sexual orientation discrimination for all employees, public and private. It's an important step; Governor Paterson deserves credit for taking it.

The problem with executive orders is that they create no remedies for the employee who may nonetheless suffer discrimination. In some states, an employee can file a personnel complaint based on an executive order, but in many states, an executive order is largely an aspirational statement. A future governor can also rescind an executive order, which has happened quite a few times with protections for sexual orientation. I doubt that any future New York governor will rescind this one, however.

EO 33 ought to help reassure some of the jittery Dems in Congress, especially those from New York and neighbor states, who are worrying about voting for a trans-inclusive ENDA.

Text of the operative portions (minus the "whereas" clauses) of the executive order after the jump -->

For purposes of this order, “gender identity” shall mean having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth. For purposes of this Order, “State agency” shall mean any department, agency, division, commission, bureau or other entity of the State over which the Governor has executive power.
No State agency shall discriminate on the basis of gender identity against any individual in any matter pertaining to employment by the State including, but not limited to, hiring, termination, retention, job appointment, promotion, tenure, recruitment and compensation.
All managers, supervisors and employees in all State agencies shall make diligent, good faith efforts to ensure that all employees are afforded equal opportunity, without regard to their gender identity.
The Office of Employee Relations, in consultation with the Executive Director of the Division of Human Rights, is hereby directed to promulgate clear and consistent guidelines prohibiting discrimination based on gender identity to maintain an environment where only job-related criteria are used to assess employees or prospective employees of the State. The Office of Employee Relations shall also implement a procedure to ensure the swift and thorough investigation of complaints of discrimination based on gender identity. Particular effort should be made to conduct investigations with due regard for confidentiality. The terms of this order shall take effect immediately, and shall be in effect irrespective of the issuance of any guidelines or procedures.

British appeals court: No religious exemption for employees registering civil partnerships

2009-12-17T17:23:43-05:00

An England and Wales Court of Appeal decision this week held that public employees working as registrars can be required to provide services to same-sex couples regardless of the employee's religious beliefs. In Ladele v. London Borough of Islington, the court upheld the decision by the Islington registrar's office to require Lillian Ladele to register same-sex partners despite what Ladele described as her "orthodox Christian view" that marriage should be limited to male-female couples and that enabling same-sex unions was "contrary to God's instructions." The court also rejected Ladele's claim that she had been subjected to discrimination based on religion.

Moreover, the court found that the British anti-discrimination law prohibiting different treatment in public services based on sexual orientation required the Borough to act as it did:

[H]owever much sympathy one may have with someone such as Ms. Ladele..., the legislature has decided that the requirements of a modern liberal democracy ...include outlawing discrimination in the provision of goods, facilities and services on ground of sexual orientation, subject only to very limited exceptions.

The court noted that the anti-discrimination law exempts "organizations the purpose of which is the practice or advancement or the like of religion or belief."

At the end of its decision, the court states that borough governments can elect not to designate persons who have religious objections as "civil partnership registrars." I am not familiar with how such offices function in the UK, but this appears to reflect the principle that employers may accommodate religious objections to performance of certain aspects of a job if it is feasible to do so.

I am in basic agreement with this decision. In my view, public employees have a duty to serve the public, not merely a portion of the public. However, if offices can be organized so that religious objectors can be transferred or otherwise assigned to jobs that do not involve issuing licenses to the public, that seems a pragmatic and reasonable result.

The case is subject to one more level of appeal.

Perry: Trial may be televised - UPDATED

2009-12-16T22:05:29-05:00

At the pre-trial conference today in Perry v. Schwarzenegger, Judge Walker told the parties that there is a chance that the trial will be televised. According to a news report, Judge Walker will wait to decide whether to allow cameras until the Ninth Circuit Judicial Conference issues a pending rule on whether or under what terms civil nonjury trials may be telecast.

The judge also announced that the major issue outstanding before trial - a dispute over release of campaign documents, sought by plaintiffs in discovery - will be decided by the Ninth Circuit en banc. A three-judge panel ruled last week that the documents were protected by the First Amendment's shield for political speech. The appeal is on an expedited schedule.

The trial date is holding: Judge Walker announced that "It will be my plan to proceed beginning at 9 a.m. on Jan. 11."

UPDATE 12/18/09 - The Ninth Circuit Judicial Conference approved a system that will allow televising of nonjury civil trials that are selected by district court judges. This clears the way for Judge Walker to designate the Perry case for being telecast and/or webcast. This one move would magnify many times the impact of the trial, and might turn out to be one of the most important contributions this case will make to the effort to legalize same-sex marriage.

Uganda analysis: American religious conservatives and the global trade in culture wars

2009-12-16T12:23:39-05:00

Pressure is building on Uganda's government to abandon or revise extremist anti-gay legislation that would imprison or, in some situations, execute persons for homosexuality. American political and religious leaders have condemned the bill, joined by other governments and the Vatican. (Photo below is from protest in London.) In the process, the role of conservative American churches in promoting anti-gay policies through various Christian churches in Africa has come to light. The same issue, in less extreme form, is being debated in Rwanda and may surface in Egypt.

The best analysis that I have read is by Rev. Kapya Kaoma, an Anglican priest from Zambia. Rev. Kaoma's article (based on a recently published study) goes beyond dissing Rick Warren or describing how a March 2009 Family Life Network conference in Kampala, featuring right-wing evangelist Scott Lively, provided the trigger for the new bill. The story is more complex than the image of bigoted white guys yahooing it up in Africa. The heart of it is a mutually beneficial reciprocity of dollars from First World churches going to economically desperate populations and Third World moral authority being exported as a weapon to use against First World religious progressives.

Following are excerpts from his article in Public Eye:

...If they had faced strong opposition, U.S. conservatives might not have been so successful in promoting their homophobic politics. Traditionally, evangelical African churches have been biblically and doctrinally orthodox but socially progressive on such issues as national liberation and poverty, making them natural partners of the politically liberal western churches. But their religious orthodoxy also provides the U.S. Right with an opportunity. Africans resonate with the denunciation of homosexuality as a postcolonial plot; their homophobia is as much an expression of resistance to the West as it is a statement about human sexuality. Similarly campaigns for "family values" in Africa rest on rich indigenous notions of the importance of family and procreation. In Africa, "family" expresses the idea that to be human is to be embedded in community, a concept called "ubuntu." African traditional values also value procreation, making those hindering this virtue an enemy of life.

Although Rick Warren's involvement in Africa is the most celebrated, and Lively's perhaps the most notorious, they are not the first U.S. conservative evangelicals to influence African policies. Pat Robertson's television show The 700 Club is watched across sub-Saharan Africa. Yet most Africans are not aware that Robertson supported the civil war in Angola and the oppressive White governments of Rhodesia (now Zimbabwe) and South Africa. He was one of many U.S. conservative evangelicals, some of whom came to Africa as missionaries in the 1980s, who sided with those White minority governments in their effort to stop the spread of liberation theology. Allied with them was – and is – the Institute on Religion and Democracy (IRD), a U.S. neoconservative group that also supported the White regimes and challenged the National Council of Churches as a group of dangerous Marxists supporting subversion. The group formed in 1981 with the goal of weakening and splitting U.S. mainline denominations in order to block their powerful progressive social witness promoting social and economic justice....

The torrential flow of conservative Christian resources to Africa helps wash away the memory of their alliances with White regimes. Through their extensive communication networks in Africa, social welfare projects, Bible schools, and educational materials, U.S. religious conservatives warn of the dangers of homosexuals and present themselves as the true representatives of U.S. evangelicalism, effectively marginalizing mainline U.S. churches that once had strong relationships on the continent. Right-wing groups have enticed African religious leaders to reject funding from mainline denominations – which require documentation of how the money is spent – and instead to accept funds from conservatives, further empowering the U.S. evangelical viewpoint while giving local bishops the opportunity to line their pockets.

To reach Africans, U.S. evangelicals now broadcast their Christian Broadcasting Network (CBN) and Trinity Broadcasting Network (TBN) throughout sub-Saharan Africa. Although generally disinterested in helping poor Blacks in their own backyard, in Africa U.S. White conservatives driven to convert the continent dominate social services, run orphanages, schools and universities, and provide loans. These conservatives and evangelical charities like World Vision, Solar Light for Africa, and the IRD-founded Five Talents use their presence in Africa to address the question of homosexuality from a conservative albeit misleading position. In this way, almost all U.S. conservative Christians working in Africa are responsible for exporting homophobia to Africa.

Indeed, Africans do not distinguish between moderate evangelicals in World Vision and Hard Right figures like Scott Lively. For them, the term "evangelical" conveys the notion of Protestant Christianity as a whole, without the substantive distinctions made by U.S. religious groups. And U.S. conservative evangelicals support diverse Anglican, Presbyterian and Pentecostal church leadership in Africa with which they share no denominational tie. For instance, the Providence Christian Reformed Church in Holland, Michigan is not an Episcopal congregation yet it provides funding to the Anglican Church of Uganda. Some U.S. support goes directly to salaries, and has since 1998 ....

While U.S. evangelicals are actively disseminating their antigay views through their mission work, American mainline renewal movements reach out to African churches for support in fights against gay ordination and marriage, helping to further crystallize this as an African issue. At their behest, Anglican churches in Uganda, Kenya, and Nigeria rejected funding from The Episcopal Church USA in 2004 over disagreements about gay ordination and other culture war issues. While these attacks have resulted in schisms within the Episcopal Church USA and the Presbyterian Church USA and continue to threaten the unity of the United Methodist Church, they offer African churches financial and ideological benefits, including a voice in international circles. As Kenya's Rosemary Mbongo told me, "Africans, Asians, and Latin American evangelical Christians have the voice today; they owe it to American conservatives."

Continues after the jump -->

Although conservative circles celebrate this rejection of aid as a sign of Africans' moral purity, Africans simply responded to U.S. conservatives' demands. A Kenyan professor noted, "American conservatives have been in my office several times requesting that we cut ties with The Episcopal Church USA and other progressive funders in exchange for their funds. They have succeeded in getting small colleges into their camp but we have refused."

The apparent plan is to encourage African church leaders to swap their relationships with mainline churches for U.S. conservative organizations and individuals.

While it is largely U.S. evangelical money displacing mainline funds supporting African churches, renewal movements within mainline U.S. churches reap the rewards by securing the alliance of Africans in fighting their battles over gay ordination and other issues at home and in international venues. This effort started as early as 1999, when members of the IRD-affiliated renewal movement in The Episcopal Church USA went to Africa to ask African bishops to support suspending the American church from the worldwide Anglican Communion for being too gay friendly and socially liberal.

More recently, IRD and United Methodist Church renewal groups organized African delegates to prevent the United Methodist Church from lifting its ban on the ordination of LGBT clergy during its global General Conference in 2008. Jerald Walz of IRD put it this way, "Wherever there is theological agreement, Americans are making ways of helping their brothers and sisters both financially and theologically…In the UMC, Americans reached out to the African delegates by helping them navigate the system... Americans are also reaching out to their African friends by giving them a voice at international gatherings."

Africa's attacks on U.S. mainline churches intensified when The Episcopal Church USA consecrated an openly gay person, Gene Robinson, as a bishop in 2004. On the surface, Bishop Robinson's consecration was an Episcopal issue. However, renewal movements in the Episcopal, United Methodist, and Presbyterian churches, and other U.S. conservatives used it as an organizing tool to preach hatred against LGBT people. In addition to citing Robinson as an example of Western corruption, they partnered with African religious leaders to demand that the Episcopal Church USA be excommunicated from the worldwide Anglican Communion and replaced with conservative leadership.

The churches then used their "principled" rejection of mainline money as a fundraising opportunity. In appeals to U.S. conservatives, Canon Allison Barfoot said the Anglican church of Uganda in Kampala lacked working phones because it had rejected money from the Episcopal Church USA. Two years after the Anglican Church of Kenya cut ties with the Episcopal Church USA in 2004, the Reverend Canon Rosemary Mbogo, its Provincial Mission coordinator, appealed for tithing from U.S. evangelical churches "to help the Kenyan province." Their requests to U.S. conservatives appear to have been answered, since both churches confirmed that U.S. conservatives provide regular funding to churches in both countries.

U.S. evangelical money is attractive because it does not come with the demands for strict accountability made by mainline churches. Bishops can spend it as they like. Ironically, U.S. conservatives have always campaigned against "unrestricted" giving in U.S. mainline churches. But in Africa, they prefer unrestricted giving as another way of undermining progressives.

Local fears that this lack of accountability breeds corruption appear well grounded. Canon Alison Barfoot, an American conservative, administers American funding at the Anglican Church of Uganda headquarters without giving African accountants any access to U.S.-related financial information or books, we learned. Furthermore, dissident U.S. Episcopal Bishop John Guernsey of Woodbridge, Virginia, vets all U.S. donations and mission partnerships with Uganda to ensure they come from "friendly" churches, and other U.S. conservatives play that role for other countries, bypassing usual safeguards....

Despite historical evidence of homosexuality in Africa long before the Europeans arrived, most conservative African religious and political leaders now view homosexuality as a Western export, and a form of imperialism and neocolonialism. And of course, U.S. conservatives exploit and encourage this belief.

Ugandan President Yoweri Museveni, whose wife is a close ally of Rick Warren, warned, "It is a danger not only to the believers but to the whole of Africa. It is bad if our children become complacent and think that people who are not in order are alright… These foreigners should go and practice their nonsense elsewhere."

Because Africans are sensitive to neocolonialism, the conservative claim that homosexuality is part of a "Western agenda" gives African church leaders ammunition to demand greater influence and power in the affairs of the church. Denouncing homosexuality is Africa's way of claiming power over the western world. In this regard, when Africans claim that homosexuality is un-African, they are pointing to a politics of postcolonial identity.

This history gives the struggle greater depth and tenacity, and for that reason, African involvement in U.S. church issues will continue. Moreover, rejecting what is claimed to be an imposition from the West gives them power both within the African context and with American conservatives of all persuasions.

Ironically enough, although American conservatives repeatedly accuse progressives of being imperialist, it is their dealings with Africa that are extremely imperialistic. Their flow of funds creates a form of clientelism, with the expectation that the recipients toe an ideological line. They put words into the mouths of their African church allies, even writing or rewriting their anticolonial statements to reflect U.S. conservative concerns....

In contrast, U.S. mainline churches repeatedly demonstrate their opposition to neocolonialism of all sorts, not least by supporting the U.N.'s Millennium Development Goals (MDGs) to fight poverty in postcolonial Africa. Yet American conservatives succeed in dismissing such efforts as neocolonial attempts to bribe Africans into accepting homosexuality, which they characterize as a purely Western phenomenon.

Sadly, the sensitivity of mainline church leaders in the United States to charges of colonialism can silence them from speaking out on LGBT issues. The African attacks create a dilemma for them: How can they be relevant to their own global North context, while remaining connected to global mainline Christianity? Unfortunately, the fear of isolation leads many social and theological progressives in the church to ignore social justice issues in their daily proclamations. While Episcopalians risked schism to support gay bishops, U.S. Presbyterian and Methodist churches do not openly ordain LGBT clergy. African clergy directly threatened to cut links with Presbyterians in 2004 if they did. Despite the active role American progressives played and continue to play in Africa, they were out-organized....

Who's intolerant? McConnell weighs in for CLS

2009-12-16T07:40:00-05:00

Following are comments by Stanford Professor Michael McConnell in response to Mike Dorf (posted yesterday) regarding the Christian Legal Society case. McConnell, who wrote the Supreme Court brief for the Boy Scouts in the Dale case, will also represent the Christian Legal Society in the Supreme Court.

I strongly disagree with my friend Michael Dorf that Christian Legal Society v. Martinez raises the question of whether we should “tolerate the intolerant.” The question presented is whether a public university may deny a small religious student group equal access to a forum for speech on the ground that it limits its leaders and voting members to those who adhere to its statement of religious belief.

There is nothing remotely “intolerant” about a religious group confining its leadership or spokesmen to adherents to its faith. Must synagogues hire non-Jewish rabbis? Must a Baptist Bible study group have a Catholic chair? The reason the religious group confines its leadership positions to adherents is not some distaste or intolerance for others, but the desire to meet and worship with students sharing a common belief, and to communicate those views to a wider audience. Others are free to attend the CLS meetings and activities, but not to seize control of their podium. Even nonreligious groups at Hastings – the Democrats, the pro-life group, the trial lawyers group, and ironically even the respondent student gay rights group in Martinez, limit their leadership to students who agree with their core beliefs. There is nothing wrong or “intolerant” about this. It makes sense, especially for small or unpopular groups who might otherwise be taken over by students who do not like their message. But only when it is the religious group has the Hastings administration cried foul.

And it is not “intolerant” for a Christian group to espouse a sexual morality based on marriage between a man and a woman. Everyone this side of the Marquis de Sade draws the line somewhere and there is no need for everyone in this diverse and pluralistic land to draw our lines in the same place. These students disapprove of “unrepentant” sex outside of marriage (whether gay or heterosexual). Others do not. But it is not accurate, or helpful, to brand those with whom we disagree as “intolerant.”

It might be intolerant if the religious students sought to deny those who disagree with them the benefits of civil society – if they tried to shut them up or shut them out. But it is not intolerant for people with a particular moral standard to form a group where they can provide mutual support and encouragement among themselves, or to communicate their opinions to a wider audience, along with everyone else.

Which side in this case is being “intolerant”? Those who want to meet and speak just like every other student organization, or those who have kicked them out?

After the jump, Dorf replies to McConnell -->

Some of Professor McConnell's disagreement focuses on my use of the term "intolerant" in my earlier post, to characterize the attitude of CLS towards sexual minorities. As I explained in the comments section to that post, in response to a similar objection by Professor Michael Livingston (yes, we're all called Michael; it's a very popular name, deriving from the Hebrew "Who is like God?"), I used the term mainly because that is the standard translation of Rousseau's point. Perhaps I might have been more precise to pose the question this way: "Must liberal standards of inclusion of all persons and groups extend even to those groups that, in their own governance, reject the very standards of inclusion of the larger society?"

In any event, McConnell's objection regarding who is tolerant and who is intolerant operates at a higher level of abstraction than the one at which I was working. He says "it is not intolerant for people with a particular moral standard to form a group where they can provide mutual support and encouragement among themselves, or to communicate their opinions to a wider audience, along with everyone else." I say it depends on the content of the moral standard. Suppose the moral standard condemns inter-racial dating and inter-racial marriage, as Bob Jones University did when the Supreme Court, in 1983, upheld IRS revocation of its tax-exempt status on that basis. Or suppose the moral standard insists on the subordination of women by men. I think that denunciation of "unrepentantly" gay and lesbian Americans as sinners is on a par with racism and sexism, and that it's fair to call any of these views "intolerant," even if rooted in religious conviction. Perhaps McConnell would draw distinctions among these views, but if not, then his objection can only be to my use of the word "intolerant" as a synonym for "inegalitarian."

Of course, if Hastings were urging the silencing of CLS, then it could rightly be labeled illiberal or even intolerant. But it is not. As my FindLaw column explains at greater length, no one disputes that an organization like CLS could limit its leadership or membership on various grounds. The question is whether it's entitled to a subsidy while doing so. In general, government has considerable power to refuse to subsidize activities that it could not directly regulate or prohibit, and conservatives usually like that fact. Just ask Bart Stupak. To be sure, the Supreme Court's "public forum" doctrine limits the refusal-to-subsidize power in certain contexts, but as I discuss in the column, it is far from obvious that Hastings has violated that doctrine. Both the district court and the Ninth Circuit thought otherwise.

And with good reason. McConnell says the case poses the question "whether a public university may deny a small religious student group equal access to a forum for speech on the ground that it limits its leaders and voting members to those who adhere to its statement of religious belief." But the religious basis of the CLS exclusion is not the reason that Hastings refuses to recognize CLS as an official organization. Hastings denies official recognition to ANY student organization that excludes ANY student for ANY reason. Maybe that's a sensible policy; maybe it isn't; I'll have a few thoughts on that issue tomorrow. But so far as the key First Amendment issue goes, there is no discrimination against any viewpoint, religious or otherwise, by Hastings. The issue is not what effect the policy has on CLS; the issue is what the Hastings policy targets. It's true that Hastings hasn't denied recognition to any other group yet, but the record shows that no other group excludes prospective student members.

Perhaps McConnell really wants religious organizations to be exempt from the rules that apply to everyone else. The Supreme Court rejected this approach to the Free Exercise Clause in Employment Division v. Smith. McConnell has produced the finest scholarship there is criticizing the Smith rule on historical and other grounds--and I myself have considerable sympathy for the view that Smith was wrongly decided. However, Smith remains the law, and CLS v. Martinez is being litigated as a free speech case, not a free exercise case. The effort--if that is what it is--to dress up a claim for a religious exemption as an objection to censorship should fail. But McConnell is a skillful advocate as well as a fine academic. Perhaps he will win the case after all.

Seeking asylum from the U.S. military

2009-12-15T12:37:00-05:00

A young lesbian who enlisted to serve in the U.S. Army and then fled after prolonged physical and verbal abuse has won reinstatement of her application for asylum in Canada. A Canadian appellate court ruled that the Canadian Refugee Board had failed to give sufficient weight to the arguments made by Private Bethany Smith that, because of her lesbianism, she could not receive a fair trial within the American military. The court noted that 10 years ago, another gay soldier - Barry Winchell - was murdered at the same base where Private Smith had been stationed (Fort Campbell, KY), in what apparently was a hate crime.

From Women's e/news, with a HT to Marcy Karin:

For months, Pvt. Bethany Smith silently endured taunts and physical abuse from her fellow soldiers at Fort Campbell, Ky., for being a lesbian. But when she received an anonymous note one day with a threat against her life, Smith decided she had to get out of the Army.

"It said that they were going to break into the supply room and get the keys to my room and beat me to death in my bed," Smith said, adding that the letter came only a couple months after she learned the Army was deploying her to Afghanistan. "It was at that point that I knew I was more afraid of the people who were supposed to be on my side than people we were supposed to be fighting overseas."

More than 12,000 service members have lost their jobs because of the U.S. military's so-called "don't ask, don't tell" policy. A disproportionate number of those discharges are women, according to 2008 statistics gathered by the Washington-based Servicemembers Legal Defense Network from the government under the Freedom of Information Act.

With the help of an acquaintance, Smith abandoned Fort Campbell and drove for two straight days to Canada, where she hoped to seek asylum. She crossed the border on Sept. 11, 2007. More than two years later, Smith, now 21, is fighting to stay in Ottawa, where she works for a call center.

Her efforts to obtain refugee status were boosted in November when a Canadian federal court judge decided her case should be reconsidered by the country's refugee board, which had earlier rejected her claim....

Smith assumes she would face a court martial for desertion in the United States and possibly further charges for having same-sex relations. She also believes that a court martial would consist of her peers, who would likely share the same views about her sexual orientation as her tormentors.

Jamie Liew, her lawyer, says Smith's father has received a visit from police with an arrest warrant related to her flight from the Army. Court documents also state Smith received a text message from a soldier from her base threatening that she deserved to be killed for deserting the unit.

Smith's case, believed to be a first, is based on anti-homosexual persecution within the U.S. military, says Liew, rather than on a reluctance to serve overseas, as has been the case for a multitude of other U.S. soldiers who have fled to Canada to avoid serving in Iraq and Afghanistan.

"The idea that she would be deployed with people who were giving her death threats is a problem," Liew said. "If people in your unit are not there to have your back, you would be killed in a war and you wouldn't even know if it was because of friendly fire, of enemy fire or because of someone deliberately firing at you . . . Her situation is unique in that way."...

Federal Court Justice Yves de Montigny noted ... that the [American] military code still makes it an offense to have sexual relations with a person of the same sex. In his decision, de Montigny wrote that Smith "provided evidence that she was afraid that her superiors may have been involved in the harassment and threats targeted at her." The judge also said her case aligned with evidence indicating that U.S. military commanders are too often complacent and sometimes even actively abusive toward gays and lesbians....

De Montigny disputed the refugee board's earlier findings that Smith had not presented "clear and convincing" proof of the inability of the United States to protect her and had not proved she faced "a risk to her life or risk of cruel and unusual treatment or punishment upon return to the United States."

In its earlier ruling, the board had also concluded that the acts of harassment and intimidation and written threats did not constitute persecution in this particular case, according to court documents.

Liew said she and her client will now go back to the refugee board for another hearing, but did not know when.

Smith said she enlisted in 2006 because her parents wanted her to. The Army promised to pay for her college education, as well as free training, an opportunity to travel and a sign-up bonus. Admitting she took no interest in politics or current affairs, she said she hadn't known of the military's policy on homosexuality until she had already signed up to join.

Although fellow soldiers initially called her a "dyke" and other terms she considered derogatory, the abuse worsened exponentially after a soldier spotted her holding hands with another woman at a local shopping mall. Besides the name calling, Smith said she began receiving hundreds of anonymous "gay-bashing" notes and was grabbed, shaken and thrown on the ground by a male soldier daily.

"My biggest fear is upon going back, if I ever had to, they would not only court martial me . . . (they would) abuse me again," she said, recalling the relief she felt two years ago when she first arrived in Canada. "It was exciting that I didn't have to look over my shoulder anymore."

Debates begin on Christian Legal Society case

2009-12-15T07:33:00-05:00

Now that the Supreme Court has granted cert in Christian Legal Society v. Martinez (background here), the conflict of rights at the heart of the case is beginning to draw commentators. First out of the box is Mike Dorf (Cornell Law). He began blogging about the case with this summary:

The Supreme Court just granted cert in Christian Legal Society v. Martinez. At the broadest level, the case presents a recurring and fundamentally unsolvable dilemma of liberalism: Must liberals tolerate even the intolerant? In more mundane terms, the case poses the question of whether a public institution--here UC Hastings Law School--can apply its non-discrimination policy to deny official recognition (and thus eligibility for funding) to the Christian Legal Society (CLS) on the ground that the latter interprets its charter to forbid membership by any person who advocates or "unrepentantly engages in" "a sexually immoral lifestyle," an exclusion that would bar openly (and "urepentantly") gay law students from membership in the CLS.

Then in an essay posted at Writ, Mike analyzes two lines of precedent and argues that the best outcome would be a compromise. Excerpted from Writ:

...[I]n two ... recent cases, Hurley v. Irish-American Gay Group of Boston and Boy Scouts of America v. Dale, the Court invalidated efforts by Massachusetts and New Jersey, respectively, to bar discrimination on the basis of sexual orientation by parade organizers and the Boy Scouts, again respectively....

...[T]he key to these rulings is that, in both Hurley and Dale, the Supreme Court thought that the private group's message would be undermined by the forced inclusion of persons whose very presence was inconsistent with that message. Significantly, Hurley was a unanimous decision:The liberals, no less than the conservatives, thought that the organizers of a private parade, who were engaging in an inherently expressive activity, should be able to decide whether the inclusion of openly gay marchers would undermine the message of the parade.

Dale, to be sure, was not unanimous. But the key point of the dissent simply underscores the distinction at issue: The dissenters thought that the Boy Scouts of America did not have a clearly-articulated message that would be undermined by having an openly gay troop leader. ...

In other words, it seems that the Court, at the time of these decisions, generally agreed that if inclusion would directly undermine a clear, specific message sent by an expressive organization, then forcing inclusion would presumptively violate the First Amendment right of association.

CLS argues that it is ... like the Boy Scouts and the parade organizers in the Hurley case ... [But} there is one very important difference between Dale and the CLS case: In Dale..., the state imposed a blanket rule: The Boy Scouts were told by the State of New Jersey that they simply had to admit gay members and troop leaders. By contrast, Hastings is not exercising that kind of regulatory authority over CLS. Hastings does nothing to stop individual law students enrolled at Hastings from getting together for meetings. All that Hastings does is deny official recognition to such groups of law students, if they are not open to all would-be members.

Accordingly, Hastings argues that this case is nothing like Hurley and Dale. The law school is not telling private organizations to admit anyone; it is only telling private organizations that want official recognition--and the eligibility for funding that comes with it--that they need to accept all interested students as members. It is well-established constitutional law that the government cannot suppress the speech of groups devoted to non-violent advocacy of racism, sexism or homophobia. But, Hastings says, it does not have to subsidize the activities of organizations that, in their admissions policies, discriminate on the basis of race, sex, or sexual orientation. It will tolerate such discriminatory speech, Hastings says, but it is not obligated to pay the bill for it.

In response, however, CLS can point to another line of cases involving so-called "public fora." These cases say that where the government opens up public property for speech, it cannot discriminate among speakers.

The Supreme Court case most closely on point is the 1995 decision in Rosenberger v. University of Virginia. There, the Court struck down a University of Virginia ("UVA") policy under which the university funded most student publications but not those that were religious in nature. Having created a forum for speech (as the Court called it, "more in a metaphysical than a spatial or geographic sense"), UVA was not permitted to discriminate among the viewpoints of those entitled to speak in that forum....

CLS argues that its case is just like Rosenberger, in that it is being denied access to the benefits of official recognition, including funding, based on the religious viewpoint it espouses. But there is at least one important distinction: Unlike the restrictions in Rosenberger ..., the trigger for the Hastings policy has nothing to do with the expression of a religious viewpoint, or with expression at all. Hastings would recognize CLS--even with a message that can reasonably be said to be homophobic--if only CLS would accept all students as members.

Who has the better of that argument? As I read the precedents, Hastings should prevail. However, there is enough wiggle room in the doctrine for the Justices to rule for CLS. For example, the Court could say that regulation of the membership of an expressive association is inherently a regulation of the association's expression, and that where the regulation takes the form of a requirement of inclusion, it is inherently hostile to a message that says certain forms of behavior are sufficiently immoral to warrant exclusion.

After the jump, the argument for a compromise outcome -->

Tomorrow: Michael McConnell - formerly a judge on the Tenth Circuit Court of Appeals, now a professor at Stanford and one of the nation's leading conservative legal scholars - responds to Dorf, who then replies.

One intriguing possibility would be a compromise. Official recognition as a student group at Hastings entitles an organization to a variety of benefits, some of which are more clearly expressive than others. For example, only officially-recognized groups have access to the school-wide email system. An attractive approach might be to say that Hastings must give all student groups--including those that violate the non-discrimination policy--access to such methods of communication, but that it can deny direct funding to any organization that refuses to abide by the non-discrimination policy.

That solution would be attractive because, within the context of a university or law school community, the ability of students and student groups to communicate with one another could be fairly taken as a baseline, while subsidization could be treated as entailing a greater level of endorsement by the university or law school.

Unfortunately, this sort of compromise appears to be foreclosed by the Rosenberger decision. There, UVA argued that there is an important distinction between, on one hand, permitting groups to use public property for their own expressive purposes and, on the other hand, the government's funding of private speech. The Rosenberger Court rejected this distinction. Thus, it appears that, on the Court's view, whatever the resource may be--whether classrooms for holding after-hours meetings as in Lamb's Chapel; money for printing as in Rosenberger; or, by extension, bandwidth for sending email as in CLS--the government cannot use the speaker's viewpoint as a basis for allocating it.

Accordingly, CLS v. Martinez will likely be decided on an all-or-nothing basis. Either the Court will view the Hastings policy as neutral and thus permissible, or it will view it as inherently infringing the right to expressive association, and thus impermissible.

Such all-or-nothing reasoning is understandable from a Court charged with fashioning legal doctrine that the rest of us must be able to apply with some predictability. But it is nonetheless unfortunate, because it obscures the fact that cases of this sort are genuinely difficult. CLS v. Martinez poses a conflict between two principles that we rightly value: expressive association and equality. No resolution can fully honor both.

Human rights, sexuality and gender in the Middle East

2009-12-14T19:58:56-05:00

I'm a big fan of Scott Long, the lgbt rights division director at Human Rights Watch. Following is an excerpt of an interview he did with Rex Wockner. This portion focuses on the Middle East; the full interview is here.

The stuff we saw in Iraq, the killing campaign this year, is a very extreme version of what we’ve seen in other places in the Middle East, which is, you suddenly get basically a moral panic around the issue of homosexuality where a lot of other social anxieties about, you know, westernization, social change, change in gender roles, masculinity, they all get wrapped up into one issue and somebody’s scapegoated, someone is targeted. The Queen Boat arrests in Egypt were very much like that, in that all of these fears about rock music and Satanism and heavy metal and effeminate men and long hair suddenly got transmuted into the issue of homosexuality. And we’ve seen kind of smaller eruptions like that in places from Morocco to Turkey over the last few years. It is very complex because it is connected to the reality of very swift social change that people find unsettling, in many cases terrifying. It’s connected to the reality of westernization and of very swift and unsettling economic changes as well. I mean, the anxieties behind it are real.

The scapegoat is fictional, but the people who suffer are also real, and I think, you know, what we need across the Middle East is not just LGBT movements who are capable of responding to this—that will take a long time—but we need a stronger commitment from mainstream human rights organizations to fight moral panics and to stand up for the human rights even of the most marginalized, stigmatized people in the community....

In both Iraq and Uganda, I think the fears and the violence of the response—the kind of legal violence that’s being proposed in Uganda and the really literal violence in Iraq—are certainly enabled by a long history of violence and social collapse. You know, Uganda has gone through 25 or 30 years of civil war. You can stand in Kampala and it looks like a beautiful, placid, just lovely place, and then you remember what’s happened to many of the people walking by you on the street in the last two decades, and you remember the civil war that’s still raging in the north, and you realize how much fear there is underneath the surface. And I think the Museveni government has been actually very clever at focusing all of people’s anxieties on homosexuality as kind of the universal target and the universal scapegoat.

In Iraq, it’s quite true that homosexuals were never particularly targeted under the Saddam regime. He had other enemies. But to the other enemies, he was absolutely brutal. ... The sanctions, and then the just-total U.S.-induced collapse of security after the invasion, have created an environment where everybody lives in anticipation of violence and where everybody feels that being ready to be violent yourself is the only safeguard. And the militias, the Mahdi Army, are the product of that—they’re a bunch of young men who see no future for themselves and whose only social role that they can imagine for themselves if they don’t have jobs, they don’t have stable family structures, they don’t have stable lives, the only role they can imagine for themselves is enforcing some imaginary version of morality. So I think the circumstances are somewhat special, but, you know, these very deep-rooted fears about sexuality, sexual difference, gender—I really think the issue of, you know, what it means to be a man and what it means to be a woman are at the core of much of this homophobic violence as much as people’s kind of fantasies about what other folks are doing in bed.

These fears are not just limited to Iraq and Uganda; you see them everywhere. I mean, the trans folks who get beaten up on the streets of New York are facing the same kinds of fears in a different version. It’s just that you have certain social situations which allow them complete sway....

What is the government's interest in preventing gay marriage? Here's your answer -

2009-12-14T00:43:06-05:00

Many people who don't actually care a great deal one way or the other about gay marriage find it difficult to imagine why they should care. After all, how does allowing same-sex couples to marry affect your typical heterosexual married couple? This is the single hardest question for the opponents of marriage equality to answer and the one on which Jon Stewart etc can most reliably trigger laughter in ridiculing their priggishness.

Well, thank goodness for lawyers. In the pretrial brief filed in Perry v. Schwarzenegger, the defendants had to identify what they believed to be the legitimate state interests behind Prop 8, the California constitutional amendment that prohibited same-sex marriage. And being the excellent lawyers that they are, they came up with not one, not two, but 47. Yes, 47. Three more and the whole thing could join AARP. But I digress.

The first five of the 47 are really the same thing - enforcing "traditional" marriage - although the idea is ingeniously morphed into five variations: "preserving the traditional institution..," "preserving the traditional meaning...," "preserving the traditional purposes..., "preserving the traditional meaning ...as it has been defined in English," [think how many more there could be: in Spanish, in Mandarin, in Farsi,...] and "expressing support for the traditional institution of marriage." Just when did "traditional" get to be a magic word, some kind of unassailable talisman? Oh right, Justice Scalia.

You have to assume that the first five represented their best shot. So who should get credit for using so many words to say the same thing? I see a litigation team meeting, in the conference room of Chuck Cooper's firm, with multiple associates around a table tweaking the language. I see billable hours.

And what of the other 42 justifications - where are the zingers to deploy against the Jon Stewarts of the world? Or even to just answer the "whatever dude" masses of potential turncoat heterosexuals?

Well, I can't do justice to all 42 of them. So here are my 10 favorites, in Letterman order:

10. Preserving "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children" (against those child-snatching gay couples);

9. To avoid "the further, and in some respects the full, de-institutionalization of marriage" (silly me, I thought people wanted to be de-institutionalized);

8. To avoid "publicly replacing the idea that parenting is largely gendered with the idea that parenting is largely unisex" (which is to say, cliches about mom- and dad-ism become harder in same-sex couples);

7. To avoid replacing "the norm of the natural parent with the norm of the legal parent" (have you ever heard of adoption?);

6. To avoid "enshrining the principle that sexual orientation, as opposed to sexual embodiment, is a valid determinant of marriage's structure and meaning" (what the hell is "sexual embodiment"?);

5. To avoid "ending or diluting the public socialization of heterosexual young people into a marriage culture" (sounds like a Moonie wedding);

4. To avoid requiring "that all relevant branches and agencies of government formally replace the idea that marriage centers on opposite-sex bonding and male-female procreation with the idea that marriage is a private relationship between consenting adults" (not that! not consenting adults!);

3. To avoid increasing "the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage" (I knew there was a reason to be bisexual);

2. To avoid contributing to "the belief that marriage in our society is now politicized" (not like in the good old days when women were serfs, for example); and .....

1. To serve the interest of "using different names for different things." (Res ipsa loquitur baby)

Pretty impressive, huh? As I said, lots of billable hours.

Happy Chanukah!

2009-12-12T08:53:00-05:00

Nan Hunter

Whenda ENDA, continued

2009-12-10T15:36:18-05:00

I want to elaborate on my earlier post about ENDA, which some persons have misread, no doubt because my language was not clear enough.

I did NOT mean to break any news or to cause any freak-outs about the work that lies ahead in securing an inclusive ENDA. Some readers took my reference to "issues such as restrooms" as a message that nefarious negotiations are going on or that trans inclusion is at risk. This reaction tells me that I probably stumbled into a hornet's nest that I did not anticipate. It is possible that none of the language of ENDA as introduced will change at all. That, however, would make it a quite unusual bill.

And as I said in my original post, it should come as no surprise - given the ENDA mess two years ago - that there would be pushback from some members of Congress on trans inclusion. Especially because lawyers have been wrestling with restroom cases for years, I know that restroom access for employees is definitely a context where wrangling over details should be expected. Indeed, it would be surprising if arguments over this issue did not occur.

As I also tried to describe earlier, the phase of the legislative process that ENDA has now reached is much more important than it may appear. We are at the point when the bill's original language is reviewed with a fine tooth comb, not just for the next step - the committee vote - but for the vote in the full House as well. (And then, of course, the Senate will weigh in.) So every issue, from the technical to the central, can come up during this period. There is nothing unique to ENDA in this - it happens with every bill that is moving forward to a committee vote.

All that said, I AM worried that the lgbt community is not worried enough about ENDA. Because of excellent work by advocates, researchers and Congressional staff, the parts of the process that are in public view - like the hearings - have been sailing along. The first predictions about the timing of floor votes were overly optimistic. Now a tougher reality has set in.

My goal in posting on this topic is to alert people that the fight for ENDA is far from over. Winning its passage should be, imho, the top priority for 2010.