Gorsuch Would Likely Overrule LGBT Civil Rights Case

As noted in a prior post, the United States Court of Appeals for the Seventh Circuit in an en banc ruling held that the Civil Rights Act of 1964 barred employment discrimination against LGBT individuals.  The court read "sex" to include "sexual orientation" and non-gender conforming behavior.  The ruling conflicts with a decision handed down by the Eleventh Circuit and sets the stage for a case being appealed to the U. S. Supreme Court and makes the nomination of Judge Neil Gorsuch all the more threatening to LGBT Americans.  In his opinion in the appeals court ruling in the infamous Hobby Lobby case, Gorsuch made it clear that he believes that Christian extremist religious beliefs outweigh the rights and health concerns of others.  Moreover, like Antonin Scalia, Gorsuch claims to be a "textualist" and :originalist" which allows him(when convenient, of course) to ignore social change and modern scientific and medical knowledge.  A piece in The Daily Beast looks at how Gorsuch's nomination is a threat to LGBT rights and lives.  Here are excerpts:

This week’s appeals-court decision that sex discrimination includes sexual-orientation discrimination is a landmark case.

It also just raised the stakes of the nomination of Judge Neil Gorsuch to the Supreme Court. Because this is just the kind of case that shows how Gorsuch’s “textualism” dictates conservative social policies.

The question at the center of the case is relatively simple. Kim Hively was fired from her job at a community college when someone saw her kissing another woman, and reported it. If that was really the reason she was fired, was it against the law?

Survey after survey has revealed that most Americans think it is. But most Americans are wrong. The Civil Rights Act of 1964 covers racial and sex discrimination, but it’s never been expanded—despite many attempts—to include sexual orientation or gender identity. The laws in 29 states are similar [including Virginia].
 Hively’s lawyers at Lambda Legal, the leading LGBT-focused activist law firm, argued that if you think about it, she was discriminated on the basis of sex. If a man were seen kissing a woman, he wouldn’t be fired. But because she’s a woman seen kissing a woman, she was. 

That position has been rejected by two other appeals courts, but this week, by an 8-3 vote, the Seventh Circuit Court of Appeals agreed with it, writing “Hively represents the ultimate case of failure to conform to the female stereotype.”

Because of the circuit split, the Hively case, or one just like it, is almost certain to go to the Supreme Court—where, if all goes according to prediction, it will encounter Justice Neil Gorsuch and his philosophy that a judge’s job is to say “what the words on the page mean.”
 That phrase sounds innocent enough, and Gorsuch repeated it over and over again during his confirmation hearing. But the Hively case shows why it’s a con.  Is “sexual orientation” among the “words on the page” of the Civil Rights Act? No. Was Hively fired for being female? No. Therefore, according to the “textualists,” she loses.

Now let’s come back to Hively. We know that the “words on the page” are ambiguous; that’s why there’s a lawsuit. So how do we understand discrimination on the basis of sex? Hively was doing something that, if she were a man, would have been totally unobjectionable. But because she’s a woman, she gets fired. Isn’t that sex discrimination?

Moreover, Hively’s claim is based on actions, not identity. She’s not claiming that her sexual orientation got her fired; she’s claiming that certain acts in which she engaged did. That’s actually a crucial difference. Hively isn’t making her case as a lesbian; she’s making her case as a woman who did something that her boss thinks a woman shouldn’t do.

[R]easonable people can disagree about how to interpret the Civil Rights Act in this kind of case. But one thing is for sure: The “words on the page” are the beginning, not the end, of the inquiry. If the words on the page were so clear, there’d be no need for judges.

Hively being decided just as Gorsuch’s nomination is being debated highlights what’s at stake for the Supreme Court, and why the non-confirmation of Judge Merrick Garland is not water under the bridge. If Gorsuch is confirmed, the case will, like so many others, come down to Justice Kennedy deciding whether to side with the court’s four liberals or the court’s four conservatives.

And if the next justice to retire is one of those liberals, or Kennedy himself, cases like Hively are open and shut. That’s why, absent some kind of last-minute compromise, Democrats are going to the mat to block Gorsuch, no matter how nice of a guy he is.

To laypeople watching the hearings, Gorsuch’s aw-shucks manner and plain-spoken appeals to the “words on the page” seem like good old common sense. But they aren’t that at all—they’re an ideology that leads to very specific, very conservative results.  And women like Kim Hively pay the price.

I take employment discrimination very personally.   When I first came out as gay after being married to a woman and having three children, I was with a relatively prominent Norfolk law firm and making good money.  While some of my partners were not thrilled with having a gay partner, nothing adverse happened to me.  Later, that firm was basically acquired by a larger law firm based in the area and the powers that be at that firm did not want to have a gay partner in the firm out of deference for "the sensibilities of the firm's conservative clients."   Naturally, when I was forced from the firm, things were worded differently, but when confronted by the attorney I had hired, the true cause was never denied.  At the time this happened, I still had a child in college and a child still in high school and a family to support.  Of course, no consideration was given to them or me the anti-gay bigots involved.  All that mattered were the purported religious beliefs of unnamed clients.  What was the impact on me?  Financially, it devastating and ultimately I was forced to file Chapter 7 bankruptcy.  At that time period in Hampton Roads, there were no "out" partners in any larger law firm - there still aren't any to my knowledge - and I was basically unemployable.   Emotionally, things were just as brutal for me and my children.  In fact, I engaged in two serious suicide attempts during the ongoing nightmare.  

Judge Gorsuch can play his word games and textualism all he wants, but the bottom line is that he is a threat to real people and real families and real lives.  

7th Circuit: 1964 Civil Rights Law Prohibits Anti-LGBT Discrimination

In the face of a growing Trump/Pence/GOP onslaught against LGBT Americans, the full Court of Appeals for the Seventh Circuit, a fairly conservative court, handed down a ruling that the 1964 Civil Rights Act bars anti-LGBT discrimination. The ruling is the direct opposite from that reached by a three judge panel of the 11th Circuit based in Atlanta.  The conflicting rulings set the stage for a possible case reaching the U.S. Supreme Court to resolve the split in the Circuits.  Arguably, an en banc ruling such as that of the 7th Circuit holds more precedent but is not binding outside of the states located within the 7th Circuit.  A piece in Star Tribune looks at the ruling that could rile the waters for anti-LGBT Republicans and their Christofascist puppeteers (more coverage is in the Indianapolis Star here).  Here are excerpts:

A federal appeals court ruled for the first time Tuesday that the 1964 Civil Rights Act protects LGBT employees from workplace discrimination, setting up a likely battle before the Supreme Court as gay rights advocates push to broaden the scope of the 53-year-old law.

The decision by the full 7th U.S. Circuit Court of Appeals in Chicago comes just three weeks after a three-judge panel in Atlanta ruled the opposite, saying employers aren't prohibited from discriminating against employees based on sexual orientation.

The case stems from a lawsuit by Indiana teacher Kimberly Hively alleging that the Ivy Tech Community College in South Bend didn't hire her full time because she is a lesbian.
Hively said she agreed to bring the case because she felt she was being "bullied."

She told The Associated Press in a telephone interview that the time has come "to stop punishing people for being gay, being lesbian, being transgender."

The Chicago ruling followed a so-called en banc hearing of all the judges in the appeals court, with eight agreeing that the civil rights law prohibits discrimination because of sexual orientation, and three dissenting. The vote is notable because the 7th Circuit is considered a relatively conservative appeals court. Eight out of the 11 judges were appointed by Republican presidents.

The issue could still land before the Supreme Court at some point. A GOP-majority House and Senate make it unlikely the Congress will amend the Civil Rights Act, which outlaws discrimination on the basis of race, color, religion, sex, or national origin and requires equal access to public places and employment.

The debate in the Hively case revolved around the meaning of the word 'sex' in Title VII of the Civil Rights Act. Some courts have concluded that Congress meant for the word to refer only to whether a worker was male or female. They said that it would be wrong to stretch the meaning of 'sex' in the statute to also include sexual orientation.

The lawyer representing the teacher, Gregory Nevins of the Lambda Legal advocacy group of LGBT rights, pointed to what he described as the absurdity of a 1980s Supreme Court finding that if workers are discriminated against because they don't behave around the office by norms of how men or women should behave, then that does violate the Civil Rights Law. But if a man or woman is discriminated against at work for being gay that was found not to violate the Civil Rights Act.

"You can't discriminate against a woman because she rides a Harley, had Bears tickets or has tattoos," he said. "But you can if she's lesbian."

Eleventh Circuit Rejects Florida Request for Stay of Marriage Ban Ruling

11th Circuit Court of Appeals

In a desperate attempt to whore themselves out to the Christofascists Florida Attorney General Pam Bondi and Governor Rick Scott sought to have the U.S. Court of Appeals for the Eleventh Circuit stay the August ruling of U.S. District Judge Robert Hinkle striking down Florida's ban on same-sex marriage.  Now, barring a stay by the U.S. Supreme Court, same sex marriages will begin on January 5, 2015.  The fact that the Eleventh Circuit refused to grant the stay does not bode well for marriage equality opponents since, if the Eleventh Circuit was likely to uphold Florida's marriage ban, it would have granted the requested stay.  Here are details from the Washington Blade:

A federal appeals court on Wednesday refused to continue the hold on same-sex marriages in Florida following a lower court ruling against the state’s ban on gay nuptials, allowing same-sex couples to begin to wed in the state “at the end of the day” on Jan. 5.

In a three-page order, a three-judge panel on the U.S. Eleventh Circuit Court of Appeals granted expedited review of a request from Florida officials to extend a stay as litigation proceeds against the state’s ban on gay nuptials, but determined the hold on Florida same-sex marriages should come to an end.

Because the Supreme Court in October refused to review decisions from three federal appeals court in favor of marriage equality, thereby dissolving the stays in those states, the hold on same-sex marriages in Florida was set to expire on Jan. 5.

Florida Attorney General Pam Bondi, a Republican, had sought to extend the stay on gay nuptials in Florida up to Election Day and beyond, but the Eleventh Circuit order rebuffs her latest request to stop them from happening.

The state has another option: It could take up its stay request with the U.S Supreme Court. The request would be directed to U.S. Associate Justice Justice Clarence Thomas, who handles stay requests for the 11th Circuit. Thomas could decide the matter himself or refer it to the entire court.

Although the Supreme Court has recently denied stays on same-sex marriage in Idaho, South Carolina and Alaska, the lack of a federal appeals court ruling on Florida’s marriage law makes the high court’s actions on a stay more uncertain. 

If a stay request is directed to Thomas - in my view the dumbest and among the worse anti-gay bigots on the Supreme Court - beyond a temporary stay, the decision for a longer stay would depend on action by the full Court which has shown itself to be reluctant to gran stays where the out come at the lower appellate court against the petitioner seems obvious.  

The husband and I love Key West and it would certainly be nice on or next visit to be viewed as legally married under Florida law.

Florida AG Pam Bondi Asks State Supreme Court To Rule On Gay Marriage

Florida Attorney General Pam Bondi - I'm sorry, but I always want to call her "bimbo" - to date has shamelessly prostituted herself to Christofascists elements in the GOP and done all she can to block marriage equality in the Sunshine State. Now, in a stunning reversal, she has asked the Florida Supreme Court to settle the issue given the U.S. Supreme Court's decision last week to punt on the issue and deny all five of the marriage equality appeals before it.  Perhaps Bondi wants to get a final decision and be done with the issue or perhaps she hopes the Florida Supreme Court will not follow the lead of federal courts that, except for one, have struck down state marriage bans  across the country.  The Miami Herald looks at Bondi's stunning about turn.  Here are highlights:

In a startling move Monday night, Florida Attorney General Pam Bondi said she wants the Florida Supreme Court to decide once-and-for-all whether same-sex couples can marry in the Sunshine State.

“That is unquestionably an important issue, and the Plaintiffs, the State, and all citizens deserve a definitive answer,” Bondi’s office wrote in a 6 p.m. filing to the state’s Third District Court of Appeal. “Until recently, the issue was squarely before the United States Supreme Court, and it appeared that a definitive answer was coming. ... Unfortunately, the United States Supreme Court decided not to answer the question.”

Last Monday, the U.S. Supreme Court settled the gay marriage issue in Utah, Oklahoma and Virginia, along with Wisconsin and Indiana, when it announced justices would not hear appeals in federal court decisions allowing same-sex marriages in those states.

On July 17, Monroe County Chief Circuit Judge Luis Garcia declared Florida’s 2008 gay-marriage ban unconstitutional, ruling against Bondi, whose office defended the ban. He ordered that a Key West couple, Aaron Huntsman and William Lee Jones, had the right to marry, but an automatic stay in the case prevented the nuptials. On July 25, Miami-Dade Circuit Judge Sarah Zabel also declared Florida’s ban unconstitutional, finding in favor of six same-sex couples who want to marry. Her ruling also was stayed pending appeal.

Bondi, who is up for reelection in November, also said subsequent similar losses in Broward and Palm Beach counties, as well as federal court in Tallahassee, should be decided in Washington.

Since it is unlikely the U.S. Supreme Court will decide same-sex marriage anytime soon, Bondi has relented.

“Florida’s courts will therefore need to resolve the issue without further United States Supreme Court guidance,” she wrote in Monday’s filing. “Because there are cases pending in multiple districts, and because this is an issue of great public importance that now warrants immediate Florida Supreme Court review, the State respectfully suggests pass-through certification.

I do not trust Bondi whatsoever.  However, it is indeed possible that she simply wants the issue to go away and with no 11th Circuit case in the offing that would be definitive over Florida, this route that she has sought to take may be  quickest way to settle the issue once and for all in Florida.  The other reality may be that Bondi sees the issue of gay marriage to be more and more of a liability to her re-election effort and she is trying to appease those on both sides of the issue.

Read more here: http://www.miamiherald.com/news/local/community/gay-south-florida/article2709200.html#storylink=cpy

I do not trust Bondi whatsoever

Reports Mount About Judge Bill Pryor's '90s Ties To Gay Porn

Over the weekend I noted that a gay porn scandal seems to be building in Alabama focused on federal judge, Bill Pryor, a George W. Bush recess appointment to the federal bench.  Pryor is extremely homophobic now and ultra-far right in general, but to date has tried to blow off the growing controversy by stating "I have been smeared by a widely discredited blogger with a political agenda. His allegations have now been picked up by other bloggers. . . . "   The blog Legal Schnauzer looks at the growing scandal.  Here are excerpts:

The number of news accounts is steadily growing about photographs of U.S. Circuit Judge Bill Pryor that appeared at a gay porn Web site called badpuppy.com in the 1990s. Perhaps the story has not "gone viral" yet, but given Pryor's staunchly anti-gay views and the flagrant hypocrisy the photos represent, members of the gay press are starting to latch onto the tale with glee. (See here, here, and here.) The style site NewNowNext.com picked up on the story yesterday.

Based on inquiries I'm receiving from major news outlets, the story might go viral on the Web at any moment. Pryor once was considered a conservative boy wonder, whose boyish looks and right-wing credentials made him a possibility for future appointment to the U.S. Supreme Court. Pryor might be watching that dream, and maybe quite a few others, slowly swirl down the drain.

As noted by Legal Schnauser, even the legal website Findlaw has now picked up the story:

Judge Wade McCree left the bench after an inappropriate photo leaked (though he was also embroiled in a sex scandal). Does a similar fate await Judge William Holcombe Pryor of the 11th Circuit?

The Internet and especially legal blogosphere exploded earlier this week when nude photos of a man bearing a striking resemblance to Judge Pryor appeared on Legal Schnauzer (link NSFW), a blog dedicated to fighting legal "injustice," and filled with criticism of allegedly-corrupt judges. The blog is authored by Roger Shuler, who holds a journalism degree from the University of Missouri, worked for 11 years at a daily newspaper, and then spent 19 years as a university editor. 

Past Resurfaces
The photos came from badpuppy.com, reportedly one of the largest gay porn sites on the Internet, and were allegedly taken when Pryor was a student at Northeast Louisiana University (now University of Louisiana Monroe) in the early 1980s. The photos, which originally appeared in a print magazine, resurfaced briefly on BadPuppy in 1997 before being taken down. Printouts survived, however.
 
Judge Pryor was confirmed to the bench in 2005. His candidacy was extremely controversial due to his antigay stance, reports the Advocate.

Credible source or not, the photos do resemble the 11th Circuit jurist. Above the Law has a censored version of the photo (SFW), and here is a photo of the judge (SFW). Legal Schnauzer has the printout from BadPuppy, which has "Bill Pryor and Tom Wander" displayed next to the photo (SFW). 

 If the photos are in fact of Pryor, I hope the jerk gets his due.