In the eighteen years since I first admitted to myself and others that I am gay - have always been gay, despite decades of strenuous attempts to "pray away the gay" - I and others in the LGBT community have had to wait and worry for the courts and legislatures to rule or legislate that we are equal under the law and not condemned to an inferior status because of what ultimately is religious based discrimination nowadays principally championed by far right Christians at least in America. First we watched and worried at how the Supreme Court would rule in Lawrence v. Texas in 2003 which ultimately struck down the sodomy laws in Texas, Virginia and eleven other states. Until that ruling, gays faced possible felony convictions even for relations with those of the same gender even in the privacy of their own homes.
Later, we watched to see if Congress would strike down Don't Ask, Don't Tell which made life a living hell for thousands of honorable and decent LGBT members in the nation's military. I and many others in the LGBT community have friends who were forced out of the military because of this policy that, once again, had its basis in religious based bigotry that had nothing to do with one's ability to serve and lead. Look no farther than Alexander the Great, the Sacred Band of Thebes, or America Revolutionary War leader General Friedrich Wilhelm August Heinrich Ferdinand Steuben, also referred to as Baron von Steuben, to prove the lie of Christofascists arguments.
More recently, in 2014 and 2015, we watched and waited to see how the courts would rule on same sex marriage - the husband and I traveled to the District of Columbia to marry before the 4th Circuit struck down Virginia's ban - with the Supreme Court finally making same sex marriage a reality in the Obergefell ruling in June, 2015.
Through out this slow process, here in Virginia and many other states (thanks to Republican legislators), LGBT citizens have been unprotected from being fired for being gay - something I know about first hand after being forced from a law firm for being gay. I was told a gay partner would "offend the sensibilities of the firm's conservative clients." I have never fully recovered from the financial ruin that firing triggered. While I now work at a firm that cares nothing about me being gay, thousands of gays are not so lucky. Now, we in the LGBT community again wait to see if the Supreme Court will grant us equality and equal protection under the nation's non-discrimination laws. With that Court now in the grips of right wing justices, the verdict is anything but certain as a piece in
The Atlantic notes. Here are article highlights:
A
skydiving instructor in New York, a funeral-home director in Michigan, a
child-welfare advocate in Georgia: Donald Zarda, Aimee Stephens, and Gerald
Lynn Bostock are three people who seemingly have little in common, save for one
extraordinary fact. Each claims to have been fired because they are gay or
transgender, and all three will argue their cases before the U.S. Supreme Court
this week.
The Court will
decide whether existing federal civil-rights law protects millions of LGBTQ
people from discrimination in the workplace, potentially clearing the way for
new challenges across the legal system. But more important, the Court’s ruling
will be a powerful symbol of the status of LGBTQ rights in America today. Faced
with the legal mess America left behind when it
moved on from its gay-rights moment following the legalization of same-sex
marriage in Obergefell
v. Hodges in 2015, the justices will decide whether the law
actually reflects a culture that is radically more accepting than it was even a
few years ago.
All three of the
alleged wrongful-termination cases hinge on one word: sex. Under Title
VII of the Civil Rights Act of 1964, employers cannot fire, refuse to hire, or
otherwise penalize people because of their sex.
[T]he
Court has long ruled that sex discrimination includes sex stereotyping, or generalizations
about how a person should act or dress based on societal norms for men and
women. In 1989, this was the basis of a major victory for a woman named Ann
Hopkins, who sued her employer, the accounting firm then known as Price
Waterhouse, for telling her she needed to wear makeup and otherwise play up her
feminine charms to get promoted to partner. Over the past 30 years, LGBTQ
advocates have argued that sex stereotyping is also what drives employers to
discriminate against people who are lesbian, gay, bisexual, and transgender,
believing LGBTQ people fail to meet society’s standards for how men and women
should act.
But Katie Eyer,
a law professor at Rutgers University, doesn’t think the Supreme Court’s
decision in these cases will necessarily follow clear ideological lines. “I
really do think this is a case in which people’s intuitions” about the
justices’ ideology “are butting up against the methodological commitments of
those same justices,” she told me.
The possibility
for a surprise outcome, Eyer said, lies in the influence of textualism, the
legal theory that guides certain conservative justices. While some scholars,
such as Epstein, argue that Title VII should not cover LGBTQ people because
Congress never meant for it to do so, “the basic premise of textualism is that
we have to have our legal decisions controlled by the words that Congress used
rather than any sort of subjective sense of what Congress intended,”
Eyer said.
She believes the meaning of sex plainly includes expressions of gender
and sexuality, and that at least one conservative justice might agree. As
evidence, she cited the Court’s unanimous 1998 decision in Oncale v.
Sundowner Offshore Services, Inc., in favor of a man, Joseph Oncale, who
was sexually harassed by other men who worked with him on an oil rig in the
Gulf of Mexico. The author of that decision was none other than the Court’s
foremost champion of textualism, Antonin Scalia, who was replaced by an ardent
admirer of his and who is also a committed textualist: Neil Gorsuch.
No matter what
the Court decides, these cases will likely prompt a renewed push for federal
legislation that clearly spells out Congress’s position on LGBTQ
discrimination. Versions of this kind of bill have bounced around Congress for
decades, but have always failed to pass, which Harper has called “shocking and
appalling.” The latest iteration, called the Equality Act, easily passed in the House
of Representatives this spring, but was essentially dead on arrival in the
Senate. If the Supreme Court rules that Title VII does not currently bar
employment discrimination based on sexual orientation and gender identity,
Congress will be LGBTQ advocates’ last hope for protections.
On the other
hand, if the Supreme Court rules in favor of the LGBTQ-rights argument,
conservatives will likely race to protect religious institutions that fear they will
be forced to comply with hiring standards that violate their teachings on
gender and sexuality. Many LGBTQ advocates want to see their rights protected
with explicit legislation, no matter what: It would send a “moral message,”
Eyer said. “There is value to having Congress enact a law that says,
explicitly, ‘This is a form of discrimination that we value—quite apart from
sex discrimination—that we think should not exist in the workplace.’”
Ultimately,
these cases are most significant because of their moral symbolism: While
relatively few people end up suing their employers in federal court, laws help
set norms about who is valued and protected in the United States. “Nobody wants
the lawsuit,” Eyer said. “What they want is not to have experienced
discrimination or harassment to begin with.”
Just a few years
ago, a Supreme Court with a very different ideological makeup handed down a
landmark ruling in Obergefell, establishing the right for all
Americans to marry. That decision left many legal issues unresolved, however,
including questions about LGBTQ discrimination. As it stands now, the Court may
not be inclined to continue on its recent path of affirming LGBTQ rights.
Whatever it decides, however, America has fundamentally changed. The judgment
of nine Supreme Court justices matters. But LGBTQ Americans are working toward
something larger: acceptance.
I dream of a day when LGBT citizens are fully equal with everyone else under the law.
