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Federal judge blocks new rule that would help same-sex couples receive Family and Medical Leave Act benefits

LGBT Legal Cases Marriage equality Marriage Equality Trials

Texas state sealThe Washington Blade reports:

A federal judge has temporarily blocked the Obama administration from implementing a new rule to ensure married same-sex couples have access to the Family & Medical Leave Act even if they live in non-marriage equality states.

In a 24-page decision, U.S. District Judge Reed O’Connor, an appointee of George W. Bush, issued the preliminary injunction based on the threat of irreparable harm to Texas, which filed the lawsuit against the regulation.

The federal district court issued a preliminary injunction against enforcing the ban. The injunction may apply to the states listed as plaintiffs (Texas, Arkansas, Nebraska, and Louisiana) or across the country.

EqualityOnTrial will have more on this developing story.

Thanks to Equality Case Files for these filings

93 Comments

  • 1. jdw_karasu  |  March 26, 2015 at 4:43 pm

    This will be moot later this year after Texas is force to accept marriage equality. 😉

  • 2. jdw_karasu  |  March 26, 2015 at 4:45 pm

    As a side not, it's a bit interesting that he didn't just punt this pending the cases before SCOTUS. There really is no need to rule at this time.

  • 3. Zack12  |  March 26, 2015 at 4:59 pm

    Just another reminder that the bigots truly do hate us.

  • 4. Dann3377  |  March 26, 2015 at 5:11 pm

    June can't come fast enough.

  • 5. PDx_Str8_Ally  |  March 26, 2015 at 5:16 pm

    Well, there sadly is….Let's just say, in Texas' wild wet ones, that the US Supreme court says something silly like 'Ya know that WIndsor ruling where we said a state can do what they want as long as it passes Constitutional muster" (which the opponents conveniently forget the last 7 words…), "well, we were only kidding about that Constitutional muster part…carry on." Then this ruling allows Texas to not have to halt benefits that were previously given out.

    Not gonna happen, but that might be his reasoning.

  • 6. RnL2008  |  March 26, 2015 at 5:44 pm

    Can someone PLEASE explain to me how the State of Texas would be harmed by allowing married Gays and Lesbians participate in the Federal Medical and Family Leave Act? I'm simply DYING to know how this Judge can be so "M/F" stupid to make this ruling!!!

    Yes folks, I'm really p!ssed off now!!!

  • 7. RnL2008  |  March 26, 2015 at 5:48 pm

    Here's the ruling: http://www.washingtonblade.com/content/files/2015

  • 8. VIRick  |  March 26, 2015 at 5:51 pm

    Rose, there is no explanation, as the state can't possibly be harmed by the federal implementation of the new rule. The judge in question is obviously both a hack and an asshat.

  • 9. RnL2008  |  March 26, 2015 at 5:55 pm

    It just has been one of those days when knowing that stupid people exist and nothing is done to them.

    Does Texas know that in a few very short months, this preliminary injunction will be moot? My guess is they don't care who they hurt all to be BIGOTS!!!

  • 10. mariothinks  |  March 26, 2015 at 5:55 pm

    How unfortunate! Tomorrow will be 11 weeks since the 5th Circuit heard oral arguments. Hope they strike down the bans and give a big F U to all the retaliation we've seen lately from conservative states.

  • 11. Wolf of Raging Fires  |  March 26, 2015 at 5:57 pm

    If I have to say WTF one more time before bed, I swear to gods.

  • 12. ianbirmingham  |  March 26, 2015 at 6:23 pm

    According to the ruling, one of the big problems is that DOMA Section 2 hasn't been knocked out yet. That's the part that says states don't have to recognize same-sex marriages from other states. The Windsor case only knocked out DOMA Section 3. The ruling recognizes that there is harm associated with stopping the FMLA rule (to same-sex couples), as well as harm associated with not stopping that rule (the agency issuing the rule didn't have the authority to issue it, given that DOMA Section 2 is still in effect, and Texas would be subjected to an illegal rule). Because the judge thinks Texas is correct in arguing that DOMA Section 2 legally prevents the agency from issuing this rule, the injunction halts enforcement of the rule.

    The even bigger problem is in the footnote at the bottom of page 18 of the ruling, where the court assumes that DOMA Section 2 is subject only to rational basis review AND refuses to conclude that there is no rational basis for DOMA Section 2.

  • 13. scream4ever  |  March 26, 2015 at 6:37 pm

    More ammo to get heightened scrutiny in June!

  • 14. Jaesun100  |  March 26, 2015 at 6:54 pm

    Why hasn't anyone challenged the stay on the case that Texas lost declaring the ban unconstitutional or did they lose a case yet ? So much I can't follow , then this would be moot as Texas would have to recognize the marriages….the stay is where the real harm is done to GLBT that what needs to be discussed and pointed out.

  • 15. weaverbear  |  March 26, 2015 at 7:03 pm

    Harm to Texas for allowing the FMLA to be in affect for same sex couples? Harm? How?

    Because it offends your heterosexist sensibilities that an individual takes unpaid leave from work, to care for an ill same-gender spouse? A spouse that may well have been denied health benefits because your state allows employers to ignore an out or state marriage and not extend the healthcare benefits heterosexual married couples usually get.

    WTF? Oh wait, I get it now.

    It's Texas.

    And right wing Republicans control the legislature, the state house and most of the judiciary there.

  • 16. tornado163  |  March 26, 2015 at 7:11 pm

    As I read it, the decision gave 2 related reasons Texas would be harmed. First, all state agencies would be required to allow leave for same-sex couples just like all other employers. Second, by doing that, Texas would be forced to break its own laws. Texas would be recognizing a marriage for FMLA purposes while at the same time Texas law says not to recognize that marriage. And anytime a state is forced to disregard its own laws, that's a form of harm.

    I'm not agreeing with the decision, just explaining my reading of the decision. Presumably if the 5th Circuit issues a decision striking down the ban, that would implicitly overrule this decision.

  • 17. Elihu_Bystander  |  March 26, 2015 at 7:29 pm

    I'm with Rose and others of you on this site. This ruling makes me very angry. Not only does it go after our marginalized LGBT community, but it goes after a particular vulnerable part of our community–those that are caring for a sick or dying spouse. That is truly the ugly side of animus at its absolute worse.

    What is the next step for the defendants? Do they file an emergency motion for a stay of the temporary injunction? They have to initially petition the present district court–no likely relief there. Then the fifth circuit (doubtful), and finally SCOTUS. How long will that take?

    There is no conceivable way that the Sate of Texas can experience irreparable harm by the granting of FMLA leave to a same sex spouse!

  • 18. Elihu_Bystander  |  March 26, 2015 at 7:45 pm

    As you say, nonetheless, there is far greater irreparable harm to the applicant for FMLA leave who is denied than there can ever possibly be to the State of Texas.

  • 19. ebohlman  |  March 26, 2015 at 8:43 pm

    The problem is that the case wasn't brought by FMLA applicants, and the four-factor test for granting a preliminary injunction only deals with harms to the parties to the case.

  • 20. DrBriCA  |  March 26, 2015 at 11:01 pm

    It was challenged last month with a plea to the Fifth Circuit, noting the then urgency of the De Leon plantiffs being close to delivery. The Fifth however hasn't ruled on it and presumably will just discuss it with the final ruling on the actual case. The couple in question has since given birth to a healthy baby a week ago.

  • 21. DrBriCA  |  March 26, 2015 at 11:03 pm

    Wouldn't the U.S. Dept of Labor need to be the one to appeal for a stay of the ruling as well as appeal the ruling? I doubt they'd push for an emergent stay given the impending decisions for the Fifth Circuit.

  • 22. DeadHead  |  March 27, 2015 at 3:24 am

    Broadway's Audra McDonald Just Took Down Indiana Gov. Mike Pence In A Glorious Twitter Rant Superstar Audra McDonald's Twitter handle isn't @AudraEqualityMc for nothing. She just earned that "Equality" name ten times over. http://www.thenewcivilrightsmovement.com/davidbad

  • 23. DeadHead  |  March 27, 2015 at 4:17 am

    "Encouraging businesses to take a public stance against discrimination of any kind." http://ifyourebuying.com/

    This campaign was started a few months ago, I would love to see it get more steam and spread around the country..

  • 24. guitaristbl  |  March 27, 2015 at 4:29 am

    Its about time the 5th hands down a ruling. Texas as lucky enough to get one of "their" judges on this one. The issue becomes moot as soon as the 5th strikes down the ban.

  • 25. Steve84  |  March 27, 2015 at 5:06 am

    They truly want gay people dead

  • 26. Steve84  |  March 27, 2015 at 5:08 am

    Section 2 just restates what has been allowed before. States were never really required to recognize any marriage from another state. They usually did so out of courtesy. Not because any law told them to.
    The Full Faith and Credit Clause just doesn't fully apply to laws. Only court judgments need to be respected in their entirety.

  • 27. Elihu_Bystander  |  March 27, 2015 at 5:26 am

    You are absolutely correct. I realized that after I had posted. Do you believe the next move is for USA et al to try to stay the temporary injunction? Or would that just be an exercise in futility?

  • 28. F_Young  |  March 27, 2015 at 6:10 am

    Breaking: Anti-Gay 'Religious Freedom' Bill Blocked – For Now – By Georgia Committee

    In a stunning move, a Georgia anti-gay "religious freedom" bill similar to one just signed into law in Indiana just died in committee – for now. What's next?

    http://www.thenewcivilrightsmovement.com/davidbad

  • 29. PDx_Str8_Ally  |  March 27, 2015 at 6:19 am

    Steve,

    IANAL, but the way I always understood it, while it is true a state may not have to recognize another state's law, isn't marriage a contract? I thought that FF&CC dealt with contracts, and a legal marriage certificate is just that. For instance, a state may not allow SSC to adopt, but if a SSC adopted a child in another state and got a birth certificate from that state listing both as parents; could another state just ignore that document? (Or is the 'adoption' a 'Court Judgement', in your opinion?)

  • 30. wes228  |  March 27, 2015 at 6:25 am

    Even if the Supreme Court were to rule against equal marriage rights, I would imagine that the federal government should be able to come up with their own policies as to how they treat their own workers!! What happened to federalism?

  • 31. wes228  |  March 27, 2015 at 6:25 am

    And the revision only applies to federal government employees too, right?

  • 32. JayJonson  |  March 27, 2015 at 7:04 am

    I don't know how much work travel exists between employees of the City of San Francisco and Indiana, but there won't be any more of it now. Mayor Lee has banned work travel by city employees to Indiana: "We stand united as San Franciscans to condemn Indiana’s new discriminatory law, and will work together to protect the civil rights of all Americans including lesbian, gay, bisexual and transgender individuals. Effective immediately, I am directing City Departments under my authority to bar any publicly-funded City employee travel to the State of Indiana that is not absolutely essential to public health and safety. San Francisco taxpayers will not subsidize legally-sanctioned discrimination against lesbian, gay, bisexual and transgender people by the State of Indiana." – San Francisco Mayor Ed Lee, via press release.

  • 33. JayJonson  |  March 27, 2015 at 7:13 am

    From Jeremy Hooper:

    "What to say, really? Another GOP-led legislature in another red state has passed a measure that the far-right hopes will help them discriminate against same-sex couples who seek their services:

    Indiana's governor signs bill allowing businesses to reject gay customers [CNN]
    Supporters of the license-to-discriminate bill, including the conservative governor who might run for president in '16, are pretending like this push is benign and that the time is coincidental.

    Bullsh*t. Indiana does not protect LGBT people from discrimination, and this is a naked attempt to keep it that way (and chip away at existing protections in jurisdictions across the state).

    It is in every way a response to same-sex marriage, which is now legal in Indiana. This is the far-right's strategy to get around marriages that they don't personally like. I know. I saw some of their (intercepted) strategy documents a full two years ago.

    ***

    *One of the chief anti-LGBT/pro-discrimination groups behind the measure doesn't even hide its intent:

    Churches, Christian businesses and individuals deserve protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women). SB 101 will help provide the protection! [Advance America]
    Governor Pence has personally thanked this very organization for "bettering the state."
    http://www.goodasyou.org/good_as_you/2015/03/indi

  • 34. Steve84  |  March 27, 2015 at 7:15 am

    A marriage is more than a simple contract. It involves the state and more importantly it's based on a shit ton of laws that give it effect.

    An adoption however is a court judgment. That's why they are portable and why even legally married same-sex couples are recommended to adopt their biological children when possible.

  • 35. JayJonson  |  March 27, 2015 at 7:25 am

    It was blocked after an Atlanta legislator attached an amendment exempting anti-discrimination laws from the reach of the bill, which he offered after the proponents had said, like ianbirmingham has been spouting here, that this was NOT a license to discriminate bill. But after the exemption of nondiscrimination laws from the reach of the bill, the proponents changed their vote and effectively killed it.

    They simply lie when they say that these bills will not gut nondiscrimination laws. That is their very purpose.

    The bigots will no doubt resurrect the bill and pass it, stripped of the amendment, but at least now there can be absolutely no doubt as to what its intended and actual effect will be.

  • 36. RnL2008  |  March 27, 2015 at 9:01 am

    Sort of like what the Legislator in Oklahoma did when she attached an Amendment stating that folks would have to post a sign in their businesses stating who they were NOT going to provide services to and the rest of the Republican Legislators basically killed their bill as well……I guess it's ONLY okay to be a bigot as long as you DON'T have to post it and let the world know your a hateful bigot.

  • 37. RnL2008  |  March 27, 2015 at 9:02 am

    Good for Mayor Lee……..if Indiana starts to lose money, maybe then they will understand that DISCRIMINATION of any kind is unacceptable.

  • 38. Elihu_Bystander  |  March 27, 2015 at 9:26 am

    This case is still in the preliminary phase. The defendants et al. would indeed go for a stay of the preliminary injunction until all appeals are completed (whenever or however that may be). We haven't even gotten to the merits of the case yet. It's too early to appeal a ruling as that has not yet happened. Only a preliminary injunction has been issued.

    It's important to try to get the stay, so that, anyone needing FMLA leave would be able to get it.

  • 39. PDx_Str8_Ally  |  March 27, 2015 at 9:27 am

    I agree that Federal benefits, if so defined as applying to the individual, should always be recognized regardless of how an individual state's laws might conflict.

    We happen to be in a grey area in our history (one which is shrinking by the day)…It is less than a month until oral arguments and less than 3 months until the ruling – which almost everybody is predicting to be in favor of a 50-state marriage equality right (however that is parse out to be).

    This 'judicial prudence' of 'wait until SCOTUS rules on this' is understandable by a conservative 5th circuit judge. I don't see the wheels of justice on this particular case moving until the end of June, when it all (hopefully) becomes wonderfully moot.

  • 40. davepCA  |  March 27, 2015 at 9:28 am

    YES! I'm starting to see a trend here….. The city of SF, Salesforce, the huge gamer convention…. it would be soo great if this picks up steam and Indiana gets a huge number of these decisions by businesses and state & city governments to take their business elsewhere, and to make the reason for this publicly known with statements like this.

  • 41. PDx_Str8_Ally  |  March 27, 2015 at 9:42 am

    Steve,

    Well, maybe at the federal level it is a 'shit ton', but at the state level, it is more like a 'butt load'.

    And, the FF&CC seems to work just fine when 'porting over' a 1st cousin marriage from AL into Texas (where marrying one's cousin is a criminal offense); and 'porting over' a 14 y/o's marriage (with parental consent) from Texas into AL (where you must be 16 y/o (w/PC) to get married).

    The contract "I married my spouse" and "this is my spouse, who is married to me" is different from the current state laws governing what marriage is. Yes the "butt load" of laws may vary from state to state, but if the law says "married person X is entitled to Y" then if a person can produce a contract that says "I am married", Y should apply.

    Lets take the federal government out of it, for a second. Lets say I am a company whose policy is to extend health care coverage to employees and their spouses. John works in CA and his married to his stay at home husband George who is the primary care giver to their daughter Jill. Suddenly, there is an urgent need to have John take over the business unit in Austin. When George goes to create a relationship with a primary care giver in Austin, can that care giver suddenly say that they don't recognize the insurance coverage because it says "Spouse" and George is not recognized as a "spouse" in Texas?

  • 42. DeadHead  |  March 27, 2015 at 9:58 am

    Gen Con has a contract with Indiana through 2020 and has said planning for a potential move out of state needs to start “five years prior to a contract-term commencement" so they're not planning to move out just yet.
    http://www.themarysue.com/gen-con-religious-freed

  • 43. JayJonson  |  March 27, 2015 at 10:05 am

    Yelp CEO Jeremy Stoppelman warns other states not to follow in Indiana's footsteps. See his Open Letter at Towleroad. Here is the link: http://www.towleroad.com/2015/03/yelps-open-lette

  • 44. Rik_SD  |  March 27, 2015 at 10:29 am

    Exactly my thoughts. I think this ruling, though it sucks, just shows definitively that in a post-Windsor world the state bans cannot stand

  • 45. Zack12  |  March 27, 2015 at 10:34 am

    We've known what the intentions are all along.
    Folks like ianbirmingham simply refuse to believe it.

  • 46. ianbirmingham  |  March 27, 2015 at 10:55 am

    The political purpose is obviously to throw bloody red meat at the bigots and thereby gain their political support. They strongly value religion and incorrectly believe that this law will enable the bigoted aspects of their religions beliefs to be implemented despite existing laws (public accomodation, etc.). Putting anti-discrimination language directly into the bill would defeat its political purpose.

    As to the legal aspects, such language would be a good thing but its omission does not mean that the bill should not be passed. Anti-discrimination laws will pass strict scrutiny in court, and they will remain in full force.

    I have never disputed the obvious fact that many of the supporters of RFRAs are motivated by bigotry and anti-gay animus. What I have vigorously argued is that the actual effect of RFRAs leaves anti-discrimination laws unaffected (and a clear 17-year history of state RFRA existence shows that no RFRA has ever had any impact on any anti-discrimination law anywhere), and that in certain cases RFRA may actually provide strict scrutiny protection to LGBTs.

    In the Alabama 3/23 thread I explained how this could happen with respect to cross-dressing:

    It [RFRA] is a good thing from a civil liberties perspective because it elevates the enforcement of a constitutional right to the highest level (strict scrutiny) which is where all constitutional rights should be.

    For sexual orientation and gender identity, certain situations are possible in which strict scrutiny can be acquired via association.

    Hypothetical example: Suppose that a fundamental tenet of the Church of Her Divine Holiness is that feminine characteristics are sacred and holy, and that practictioners of this religion must always display these characteristics. Accordingly, all male members of the religious order are required to cross-dress at all times. Under RFRA, strict scrutiny applies.

    And speaking of anti-discrimination laws, the federal Employment Non-Discrimination Act (ENDA) has already passed in the Senate and now has 206 co-sponsors in the House.

    ENDA in the Senate: https://www.congress.gov/bill/113th-congress/sena

    ENDA in the House: https://www.congress.gov/bill/113th-congress/hous

  • 47. Steve84  |  March 27, 2015 at 11:15 am

    Most states recognize first cousin marriage. But this isn't because they have to. It's just not an important enough issue for them to fuss over. But according to Wikipedia there are several states that void such marriages: http://en.wikipedia.org/wiki/Cousin_marriage_law_

    At least on paper. On a practical level however, two married cousins will fly under the radar almost all of the time. It would take quite a bit of work to uncover that they are related.

  • 48. Rick55845  |  March 27, 2015 at 11:36 am

    I'm quite confused about the actual impact of these state-level RFRA laws. I know it is a contentious subject here on EOT. I'd like to better understand it.

    It seems to me that since sexual orientation is not a federally protected class, then people who live in states without anti-discrimination laws that include sexual orientation are free to discriminate on that basis, regardless of the any state RFRA type law.

    Georgia is one such state. It does not provide anti-discrimination protection to people based on their sexual orientation. So no one needs the proposed RFRA law to discriminate on that basis anyway.

    Is the enactment of such a law, then, purely a political exercise for a state like Georgia, at least with respect to the ability of its citizens to discriminate on the basis of sexual orientation?

  • 49. DrPatrick1  |  March 27, 2015 at 11:38 am

    I propose a new thread available this weekend with the following topic for discussion.

    Proposed: Consider the political, social, psychological implications of a "shit ton" vs a "butt load" of rights, the availability, and accessibility as well as the expansion of said rights…

  • 50. Mike_Baltimore  |  March 27, 2015 at 11:39 am

    And if the DoL enters the case, wouldn't that mean a change from any court going through the 5CA to a court in DC, most likely the Federal Circuit? It is a Federal government regulation under argument, isn't it?

    How would a change of venue affect the case? Lengthen the time until we get a ruling? Would the case have to get to SCOTUS before SCOTUS sends the case to the correct venue?

  • 51. ianbirmingham  |  March 27, 2015 at 11:44 am

    The Full Faith and Credit clause generally applies to marriages, which is why PDx_Str8_Ally's examples are all valid. There is a judicially created exception for situations in which recognizing the marriage would violate the strongly held public policy of the state, which is why those few examples of cousin marriages being voided by a few states also exist.

    Another good source on this topic is here:

    http://www.cousincouples.com/?page=states

  • 52. ianbirmingham  |  March 27, 2015 at 12:38 pm

    Your analysis is completely correct, and as I explained in the Alabama 3/23 thread, (for situations other than employment) that is also the case with respect to Indiana:

    …gay couples cannot sue an Indiana bakery for discriminating against them, either before or after the passage of RFRA. In fact, in Indianapolis, one year ago, there was a documented case of legal bakery discrimination against a gay couple: "Businesses in Indiana can lawfully discriminate against and refuse to do business with individuals because of their sexual orientation or gender identity."

    http://www.towleroad.com/2015/02/indianapolis-bak

    RFRAs do not affect anti-discrimination laws, so Indiana's laws and policies prohibiting employment discrimination (where they exist) will remain in full force.

  • 53. JayJonson  |  March 27, 2015 at 12:39 pm

    You simply refuse to recognize that a "religious liberty" bill passed in a state that has established equal rights for gay people as a compelling state interest is different from a "religious liberty" bill passed in a state that has established discrimination against gay people as a compelling state interest.

    Your example above is just silly, but I do believe that the poison pill for these laws will soon become evident when some Christians use it to justify discrimination against other Christians or when Muslims use it to justify their refusal to obey zoning laws against noise. Unfortunately, it will meanwhile prevent any recourse from state or city officials when yahoos mistreat gay people in the name of religion.

  • 54. JayJonson  |  March 27, 2015 at 12:43 pm

    The main purpose of these laws in states like Georgia and Indiana is to gut the few nondiscrimination ordinances that exist on the city or county level. That is why the Georgia bill was stalled in the House of Representatives when an Atlanta legislator succeeded in getting adopted in committee an amendment that exempted anti-discrimination laws from the bill. Once that was adopted, the proponents of the bill voted it down because they said, truthfully, that the purpose of the bill was to allow people to discriminate against gay men and lesbians.

    These bills will also be used to allow state employees to refuse to process marriage licenses for gay people, for example. In the best case scenarios, the state will say that the county offices will have to find someone else to do the paperwork, but that the employee with religious scruples must not be penalized for refusing to do anything to facilitate a same-sex marriage. Etc. etc. In the worst case scenarios, a physician or ems driver may refuse to provide service to a gay man or lesbian on the grounds that they have religious beliefs that cause them not to support an immoral lifestyle.

  • 55. ianbirmingham  |  March 27, 2015 at 1:02 pm

    The blathering of bigots in the Legislature does not create public policy and courts will not infer public policy from such statements. Only the established laws and rules of the state are considered valid sources for determining what the public policy of the state is.

    "Public policy may be found in the state constitution, in the letter and purpose of a constitutional, statutory or regulatory provision or scheme, in the judicial decisions of the state and national courts, in the constant practice of the government officials, and, in certain instances, in professional codes of ethics. Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. Ct. App. 1985)."

    http://hr.cch.com/ELD/GrahamHubbs.pdf

    Quoting the United States Supreme Court:

    … it is relevant to note that the [US Supreme] Court has recognized the State's "compelling interest" in combating invidious discrimination.

    https://supreme.justia.com/cases/federal/us/487/1

    Quoting the District of Columbia Court of Appeals (in the Georgetown case that others have referenced already):

    …we hold that the District of Columbia's compelling interest in the eradication of sexual orientation discrimination outweighs any burden imposed upon Georgetown's exercise of religion by the forced equal provision of tangible benefits.

    http://www.leagle.com/decision/1987537536A2d1_153

    In Indiana, the compelling interest in preventing discrimination on the basis of sexual orientation is properly documented at the state level in the form of executive orders against employment discrimination, and at county and city levels in the form of laws against employment discrimination.

    https://en.wikipedia.org/wiki/LGBT_rights_in_Indi

    On top of that, explicitly stated Indiana public policy generally regards equal access to public accomodations as a civil right.

    http://www.state.in.us/icrc/files/ch1.pdf

  • 56. JayJonson  |  March 27, 2015 at 2:23 pm

    You do not even read what you post. The legislative history of a bill does indeed inform its meaning, including what the legislators say is the purpose and intention of a bill and also including the bills that the legislature passes and those that it fails to pass. Indiana has repeatedly refused to enact laws that prohibit discrimination against gay and lesbian citizens in the state. That is clear proof that it does not consider protection on the basis of sexual orientation a compelling interest.

    University of Pennsylvania law professor Tobias Wolff just appeared on MSNBSC's Ed Show to denounce the bill. He clearly thinks that it is intended to license discrimination in the state.

  • 57. hopalongcassidy  |  March 27, 2015 at 2:49 pm

    Every time I peruse one of your posts, I'm reminded of the old cliche'….with friends like that who the hell needs enemies.

  • 58. hopalongcassidy  |  March 27, 2015 at 2:58 pm

    Here's a little more on that. Some of the comments about "wanger cakes" are pretty damn funny! :-)
    http://www.thelostogle.com/2015/03/12/emily-virgi

  • 59. JayJonson  |  March 27, 2015 at 3:22 pm

    A new YouTube video explains why Indiana is a great place for bigots.
    https://www.youtube.com/watch?v=5LH2FVxrj4k

  • 60. ianbirmingham  |  March 27, 2015 at 3:51 pm

    The judiciary may attempt to assess legislative intent where legislation is ambiguous, or does not appear to directly or adequately address a particular issue, or when there appears to have been a legislative drafting error.

    When a statute is clear and unambiguous, the courts have said, repeatedly, that the inquiry into legislative intent ends at that point. It is only when a statute could be interpreted in more than one fashion that legislative intent must be inferred from sources other than the actual text of the statute. … many courts have suggested that the comments of those opposing a bill under consideration should be treated with skepticism, on the principle that opponents of a bill may often exaggerate its practical consequences.

    https://en.wikipedia.org/wiki/Legislative_intent

    With RFRA the legislation is clearly doing one and only one thing: specifying the strict scrutiny standard for the constitutional right of religious freedom. And both the bigoted supporters and the opponents of the bill are exaggerating its practical consequences.

  • 61. Rick55845  |  March 27, 2015 at 4:03 pm

    "a "religious liberty" bill passed in a state that has established equal rights for gay people as a compelling state interest is different from a "religious liberty" bill passed in a state that has established discrimination against gay people as a compelling state interest. "

    Finally, I get it! Thank you, Jay, for the succinct explanation.

  • 62. ianbirmingham  |  March 27, 2015 at 4:23 pm

    That explanation is incorrect, since there is NO state in which discrimination against gay people is legally a "compelling interest".

  • 63. JayJonson  |  March 27, 2015 at 5:22 pm

    Your repetition of this nonsense over and over again does not make it any more accurate. States that have repeatedly refused to adopt laws prohibiting discrimination against gay and lesbian people simply cannot be said to have asserted that it has a compelling interest in prohibiting discrimination against gay people.

    Next you will be saying that Texas has asserted a compelling interest in assuring equal marital rights for all its citizens just because it will allow a lesbian to marry a man and a gay man to marry a woman.

  • 64. ianbirmingham  |  March 27, 2015 at 5:50 pm

    The blathering of bigots in the Legislature does not create public policy and courts will not infer public policy from such statements. Inaction does not create public policy either. Only the established laws and rules of the state are considered valid sources for determining what the public policy of the state is.

    "Public policy may be found in the state constitution, in the letter and purpose of a constitutional, statutory or regulatory provision or scheme, in the judicial decisions of the state and national courts, in the constant practice of the government officials, and, in certain instances, in professional codes of ethics. Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. Ct. App. 1985)."

    http://hr.cch.com/ELD/GrahamHubbs.pdf

    In Indiana, the compelling interest in preventing discrimination on the basis of sexual orientation is properly documented at the state level in the form of executive orders against employment discrimination, and at county and city levels in the form of laws against employment discrimination.

    https://en.wikipedia.org/wiki/LGBT_rights_in_Indi

    On top of that, explicitly stated Indiana public policy generally regards equal access to public accomodations as a civil right.

    http://www.state.in.us/icrc/files/ch1.pdf

  • 65. RQO  |  March 28, 2015 at 5:32 am

    Question: don't these freedom of bigotry laws allow a business owner to not only refuse customers, but to treat them differently? I just had this aweful thought of the return of movie theaters with a separate entrance leading to the balcony.

  • 66. ianbirmingham  |  March 28, 2015 at 7:23 am

    No, because public accomodations law prohibits that. The state has a compelling interest in preventing discrimination. Recently in Lexington, Kentucky, a Christian business violated public accomodations law by refusing to print gay pride T-shirts. It cited Kentucky's RFRA and claimed that it did not have to print the shirts. This claim was immediately rejected – the printing of the T-shirts was found not to "substantially burden" the freedom of religion, and the law was found to be fully supported by a "compelling interest" in ensuring equality. The Christian business was found to have violated public accomodations law. A permanent anti-discrimination injunction was imposed against the Christian business in October 2014, and the Christian business was also ordered to complete a diversity training program.

    http://www.adfmedia.org/files/HOOrecommendation.p

  • 67. JayJonson  |  March 28, 2015 at 7:25 am

    The law places people with "sincere religious beliefs" beyond the reach of government sanction except in areas where the government has a compelling interest. Inasmuch as Indiana has repeatedly refused to assert a compelling government interest in protecting the rights of gay and lesbian citizens from discrimination (and indeed has historically passed laws subjecting them to discrimination in marriage and adoption and criminalizing same-sex activity), people with "sincere religious beliefs" can do just about anything they want to do in relation to gay people. If challenged, they can use the RFRA as a defense and can even call upon the government to intervene on their behalf.

    One hopes that sanity will prevail and the actual instances of discrimination and bad behavior will be few, confined mostly to a few restaurants, bakeries, and florists refusing to serve gay and lesbian customers or hire gay and lesbian employees; but Indiana is engaging in a dangerous and potentially disastrous experiment.

  • 68. ianbirmingham  |  March 28, 2015 at 7:31 am

    As I demonstrate in my comment immediately below (or above, depending on how your comments are sorted) (citing the Christian business in Lexington, Kentucky which tried and failed with RFRA as a defense against printing gay pride T-shirts according to public accomodations law), your understanding of public accomodations law and RFRA is fundamentally incorrect.

  • 69. JayJonson  |  March 28, 2015 at 7:54 am

    The case that you referred hinged on facts that will not be applicable to Indiana–the Lexington Fairness Ordinance includes protection against discrimination on the basis of sexual orientation and gender identity; Kentucky has a public accommodations ordinance that forbids discrimination against associations (the complaint was filed by the Pride Association); the Human Rights Commission of Lexington County intervened on behalf of the complainant; and, most importantly, the printer's claim of "sincerely held religious belief" was demolished when it was revealed that he printed t-shirts with various obscene messages.

    Indiana has no state-wide protection against discrimination for gay people and has repeatedly refused to adopt any. Moreover, the Kentucky RFRA is far less extensive than the Indiana version, which specifically authorizes the state to intervene on behalf of the person claiming that his or her religious practice is constrained by a government agency. Hence, if this discrimination had occurred in Indiana the government would be on the side of the defendant not the complainant as in this case.

    If Indiana had adopted Kentucky's version of the RFRA, there would not be the uproar and concern about it. Instead, Indiana adopted the version that Arizona adopted, which was subsequently vetoed by Governor Brewer after many companies and the NFL threatened to boycott the state if she signed it.

  • 70. Wolf of Raging Fires  |  March 28, 2015 at 7:56 am

    How many times are you going to repeat yourself before you realize we're not buying what you're selling.

  • 71. Steve84  |  March 28, 2015 at 9:20 am

    The point of those stupid RFRA laws is to exempt religious people from judicial review. Sure people can sue, but it's almost impossible to go up against strict scrutiny. The result is that churches and religious people can get around almost any rules and regulations (short of serious crimes) that normal people have to follow.

  • 72. ianbirmingham  |  March 28, 2015 at 10:06 am

    Where there is no county or city anti-discrimination law, there was no protection before RFRA, thus RFRA does no harm in any of those locations. Where there is county or city anti-discrimination law, the Lexington example applies in full force. The state's participation will not affect the outcome of the case – the law is the law and the outcome will occur accordingly.

  • 73. ianbirmingham  |  March 28, 2015 at 10:20 am

    The sky is not falling, no matter how many Chicken Littles say that it is, and no matter how completely they fail to accept all the evidence that it isn't.

    In any event, these RFRAs either have already passed or will soon pass. They should be accepted as reality. Perhaps they can motivate activists to complete the unfinished work of passing the federal ENDA and achieving complete state and local anti-discrimination law coverage.

  • 74. Wolf of Raging Fires  |  March 28, 2015 at 10:25 am

    Boy, all that copying and pasting must cramp the fingers!

  • 75. Wolf of Raging Fires  |  March 28, 2015 at 10:49 am

    Being proactive and passionate about fighting for our rights is not the same thing as panic. For the same reasons, being in denial about what is going on in our country is not the same thing as maintaining a cool head.

  • 76. F_Young  |  March 28, 2015 at 10:56 am

    Ian, the basic problem that I see with your argument is that you assume that setting a stricter standard for government limits to religious rights will somehow lead to setting a stricter standard for other constitutional rights as well, including LGBT rights.

    I don't think that other constitutional rights automatically get better protection when religious rights are better protected. I don't see that you have explained how that would happen.

    On the contrary, it seems at odds with the real life intentions of those with political and judicial power now, and probably even more so in the future. It also seems to be at odds with the experience of other countries now and in the US in the past. While there are cases where increased religious rights did not limit other rights (eg the right of Jehovah's Witnesses not to salute the flag), the more common situation is that the expansion of religious rights leads to the reduction of other rights (the rights of women, slaves, Blacks, children, atheists, LGBTs, the right to commit victimless crimes, freedom of expression, the right to sex and other education, the right to receive or refuse medical care), and indeed this has often been the intended result.

  • 77. ianbirmingham  |  March 28, 2015 at 11:56 am

    That's a misstatement. What I argue is that: 1) All constitutional rights should be protected by strict scrutiny, and 2) The movement of any constitutional right toward higher levels of scrutiny is a step in the right direction.

    Even if we hypothetically assume that moving one right ahead faster than the others causes some kind of temporary glitch, the correct solution to that problem would not be to reverse the progress of the higher-achieving right, but rather to accelerate the progress of the other rights so that they can catch up.

    RFRA will be of great value in many cases along the lines of the Jehovah's Witnesses not saluting the flag, but will not negatively impact public accomodations or anti-discrimination laws. As I have explained, there are certain situations in which strict scrutiny for religious freedom could benefit sexual orientation and gender identity, as with the cross-dressing example I described. While that clearly will not create a large practical impact, the example does demonstrate that there is at least a very small positive effect.

    Your post includes zero evidence of increased religious rights causing reduction of other rights, so I invite you to post such evidence if you have it or can find it.

    The task of propelling LGBT rights forward remains basically the same – some progress has been made, but there is still a lot of work to do. ENDA must be passed at the federal level, and so on. The coverage of anti-discrimination laws is comparable to the US coverage of Gigabit Ethernet – highly desirable and also very scarce. Building out the anti-discrimination infrastructure is a huge unfinished task, and we should get on with it.

    https://en.wikipedia.org/wiki/Employment_Non-Disc

    https://en.wikipedia.org/wiki/Public_accommodatio

    https://en.wikipedia.org/wiki/LGBT_rights_in_the_

  • 78. VIRick  |  March 28, 2015 at 1:35 pm

    Plus, I skip past it, and refuse to read it.

  • 79. Wolf of Raging Fires  |  March 28, 2015 at 1:37 pm

    I do until it starts to look like harassment, then I step in.

  • 80. hopalongcassidy  |  March 28, 2015 at 5:18 pm

    Go the fuck away. Your self-aggrandizing bullshit isn't gaining any traction with us who actually have functional BS detectors. You are a legend in your own deluded mind…we really don't give a fuck what passes for thinking in your vacuous cranial cavity.

    Enough is fucking enough. We don't need your shit.

  • 81. VIRick  |  March 28, 2015 at 5:37 pm

    Thank you, hop.

    We finally have some eminently quotable words in this discussion worth noting!!

    However, even your last two sentences are rather understated, don't you think??

  • 82. VIRick  |  March 28, 2015 at 5:50 pm

    JayJonson, just to reinforce your calm, rational understanding of "compelling government interest," and how that can (and will) vary from one jurisdiction to another, I see your very lucid point quite clearly.

    On the other hand, the "sincere religious beliefs" of The Christian Church (Disciples of Christ) are such that given the passage of this "right to discriminate" legislation in Indiana, this pious Christian denomination which, henceforth, has always been based in Indiana, will be seeking a new headquarters location and a new convention venue in some other state which does not discriminate. This particular Christian denomination is not only welcoming to LGBT members, but also includes LGBT clergy within its ranks.

    So, while the politicians may think they are appealing to (and appeasing) their right-wing Christian base, the truly pious Christians are actually picking up their stakes and moving out-of-state.

    It will be interesting to see what the Amish and Mennonite reaction to this "right to discriminate" legislation in Indiana might turn out to be. The Amish, in particular, have a way of "shunning" violators, and that includes anyone perceived as attempting to appeal to or appease them, particularly if they perceive it as being done in a gratuitous manner. This legislation may well be deemed by them as falling into this latter category.

  • 83. brchaz  |  March 28, 2015 at 9:56 pm

    EqualityOnTrial Community Guidelines

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  • 84. bayareajohn  |  March 28, 2015 at 10:56 pm

    I've seldom chosen the wrong side when witnessing an argument by betting that the one that resorts to profanity first has the least to back up his position.

  • 85. VIRick  |  March 28, 2015 at 11:29 pm

    "This further inflames flame wars and is not acceptable."

    Thank you. True enough.

    My comment, above, was made totally "tongue in cheek," but apparently I should have so indicated, although at the time, I thought it was perfectly self-evident.

  • 86. JayJonson  |  March 29, 2015 at 7:31 am

    I think you rely far too much on Wikipedia as to the relevance of legislative history. I suppose you think that Justice Ginsburg's pointed reference to the legislative history of DOMA in the oral arguments for Windsor was irrelevant?

  • 87. JayJonson  |  March 29, 2015 at 7:42 am

    Yes, the most important cultural shift recently has been the number of religious groups that have come to our defense and/or modified their stance on homosexuality and/or same-sex marriage. The legislators in Indiana are pandering to the most extreme elements of their conservative base.

    They are also pandering to the widespread misperception in this country that businesses and business owners can do whatever they want to do. Hence, many people believe that business owners, including owners of public accommodations, have a right to refuse service to people on any ground they choose.

  • 88. JayJonson  |  March 29, 2015 at 7:59 am

    I agree that the passage of a federal ENDA bill (with very limited or no religious exemptions) and SCOTUS mandating heightened scrutiny for sexual orientation and gender identity would be great steps forward.

    But the notion that increased scrutiny for any constitutional right is automatically a step in the right direction is nonsensical as a general principle and absurd in this case.

    In the first place, "religious liberty" already enjoys strict scrutiny. So state RFRAs do not increase scrutiny for religious practice. What Indiana's RFRA and other proposed ones do is to gut protections for gay and lesbian individuals and couples.

    Beyond that, rights are often in tension. So to give increased protection to one right often has the effect of diminishing other rights.

    In adopting this law, Indiana made clear that the state's compelling interest is to protect the rights of the religious to discriminate against gay people. (That it might have the unintended consequence of also protecting the rights of churches and mosques not to obey zoning restrictions or allow businesses to control the kind of contraception offered to its employees or to embolden Christian printers to refuse the business of Muslims or Christians whose message they disagree with is simply collateral damages as far as the legislators who passed this bill is concerned.)

    By allowing religious rights to trump other rights, this law does nothing to extend rights generally. It does precisely the opposite.

    It was very telling when Governor Pence, appearing on the "This Week with George Stephanopoulos" show this morning, to talk about how Indiana was being mistreated in the media, said that he would ask the legislature to "clarify" the bill. But he refused any clarification when he was asked some very basic questions about the bill.

    But he was clear on one thing. When asked if he would support a bill that said that the purpose of the RFRA was not to affect any civil rights legislation, he emphatically said no. He also said that he would not support any bill that prohibited discrimination on the basis of sexual orientation and gender identity. "That's not on my agenda," he said.

    Instead, he embraced the talking points of NOM and other Christian extremists to lament how intolerant the critics of Indiana are, as usual depicting himself and his state as victims even as they are intent on victimizing others.

  • 89. JayJonson  |  March 29, 2015 at 8:18 am

    Here is a link to an article about Pence's appearance on the "This Week with George Stephanopoulos" this morning. http://www.mediaite.com/tv/stephanopoulos-corners

  • 90. F_Young  |  March 29, 2015 at 10:04 am

    JayJonson: I agree that the passage of…
    the notion that increased scrutiny for any constitutional right is automatically a step in the right direction is nonsensical
    …state RFRAs do not increase scrutiny for religious practice. What Indiana's RFRA and other proposed ones do is to gut protections for gay
    … By allowing religious rights to trump other rights, this law does nothing to extend rights generally. It does precisely the opposite…
    When asked if he would support a bill that said that the purpose of the RFRA was not to affect any civil rights legislation, he emphatically said no. He also said that he would not support any bill that prohibited discrimination on the basis of sexual orientation.

    Jay, you nailed it. I couldn't have said it as well. It's times like this that I wish registered users could upvote more than once, like the sockpuppets downvote.

    The only thing I would have added is that a federal ENDA is just smoke and mirrors for the next few years; it's a distraction and waste of energy and political capital until the balance of power is changed in the House and Senate.

    The fights we are not certain to lose are in the SCOTUS (for the next few months only, and the most we can get is heightened scrutiny) and the courts in some circuits, as well as the Senate and Presidential elections in 2016, and the fight over SCOTUS appointments.

    Until 2016, the only other major fights we can win are some of the state RFRAs, which is where the greatest threats and opportunities are now. The fight is legislative now; it may become judicial shortly afterwards; and I fear we may have to fight get-out-the-vote RFRA state constitutional amendments in 2016, but on a smaller scale than in 2004.

  • 91. VIRick  |  March 29, 2015 at 10:43 am

    "They are also pandering to the widespread misperception in this country that businesses and business owners can do whatever they want to do."

    Indeed! Ironically, even though the measures are cloaked as "religious freedom," as a kind of ad hoc term designed to sell the concept, this second point of yours is probably the more important, that business owners have the commonly-perceived right to refuse service to people on any grounds they choose. In other words, just cloak the bigotry as "religious freedom," and one can deny service in any manner one cares to, and for whatever reason, as long as one can cite a pseudo "religious freedom" line for doing so.

    The more progressive denominations have never bought this line, nor have the denominations which have suffered a history of being oppressed. It was an eye-opener to me to suddenly realize that the more pious ones are also not buying it.

  • 92. guitaristbl  |  March 29, 2015 at 11:03 am

    The more interesting aspect of such laws is the true inequality they hide under the carpet and something I haven't seen being mentioned in this whole debate :

    Indiana, same as every other state, has in its books laws prohibiting discrimination on the grounds of religion, correct ? As well as other categories such as race, disability, origin etc ?

    If I discriminate against a gay man, I am covered under this law as sexual orientation is not a protected class in Indiana.

    If a gay man discriminates based on a sincerely held belief against a christian how will the law work ? On one hand the new law claims to protect the rights of such owner to kick out a christian (although christians have no problem with that since they consist a majority and they can boycott such a business to bankruptcy), on the other hand religious belief is a protected class under Indiana law. So someone can easily side with the christian who was denied service on that basis.

    This sneaky inequality perpetuated by all those laws has not be mentioned thus far and it's crucial.

  • 93. bayareajohn  |  March 29, 2015 at 12:31 pm

    Pence refused to answer a closing YES/NO question as to whether he thought discrimination against LGBT should be legal. Refused. You only refuse that question when you know the truth will hurt you..

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