How a Supreme Court Decision for Masterpiece Cakeshop Would Harm Religious Minorities
On Tuesday, lawyers representing Jack Phillips, a baker from Lakewood, Colorado, will argue to the U.S. Supreme Court that religious freedom is under serious, if not mortal, threat. They will urge the court to embrace their interpretation of religious liberty principles, insisting that if they don’t win, the rights of people of faith will be in serious jeopardy.
Phillips and his lawyers have it exactly wrong—it is they who pose a threat to religious freedom. A victory for Phillips would not only harm people of faith, but also those who value our nation’s commitment to religious pluralism and civic equality.
The case being argued before the Supreme Court this week, Masterpiece Cakeshop v. Colorado Civil Rights Commission, raises the important question of whether businesses can rely on religious justifications in order to avoid compliance with state’s non-discrimination laws. As Phillips put it, he declined to bake a wedding cake for a same-sex couple because “using his God-given talents to promote same-sex marriage would go against his religious belief that marriage is between a man and a woman.”
On the surface, Phillips’ argument may appear to advance rights for people of faith. After all, under his view, a small group of religious adherents may gain legal protections. But as we argue in an amicus brief on behalf of fifteen religious minority groups, significantly more people of faith—and religious minorities in particular—stand to suffer if Phillips’ argument prevails. Why? Because non-discrimination laws, such as the Colorado law at issue in this case, often play an indispensable role in protecting the rights of religious communities. These laws serve as a critically important check against discrimination by businesses, employers, landlords, others; without such protections, individuals or groups—especially those outside the mainstream—would not be able to fully participate in civil society, and would be vulnerable to unjust persecution and harassment at every turn.
The United States is more heterogeneous racially and religiously than at any point in our history. As a result, robust non-discrimination laws are all the more crucial for ensuring that people of every faith can live and work together. But if Phillips prevails before the Supreme Court, those who would deny jobs or services to people because of their religious objections will feel even more empowered to do so. For example, a clothing store may choose to refuse to serve or hire Muslim or Jewish women who embrace modesty values because of opposition to their beliefs and practices. This is no idle threat; only two years ago the Supreme Court heard a case in which a Muslim woman was denied a job simply because she was wearing a headscarf.
Vermont Supreme Court Protects the Rights of Same-Sex Parents and Their Children
On Friday, the Vermont State Supreme Court handed down a significant decision in a child custody dispute between an estranged lesbian couple. The ruling in Sinnott v. Peck is one of many recent landmark state court decisions that protect same-sex parents’ rights and preserve the bonds between parents and their children.
Between 2003 and 2010, Sarah Sinnott and Jennifer Peck were in a healthy, loving relationship. The couple shared a home, cared for one another’s elderly parents, enjoyed vacations and meals with each other, and raised two children. Before their relationship began, Jennifer adopted a 1-year-old girl, G.P., from Guatemala. As soon as she could talk, G.P. called Sarah her mother. Jennifer encouraged G.P. to call Sarah as her mother and referred to Sarah as “mom,” as well.
A year later, Sarah and Jennifer decided to adopt another child together. The couple wanted to adopt a child from Guatemala so that both children shared a common cultural background. The adoption process was not smooth. Guatemala’s adoption system was riddled with mass corruption—indeed, the United Nations documented over 3,000 irregular adoptions— prompting the Guatemalan government to pursue legislative reforms. Those anti-corruption measures, however, threatened to shut off all international adoptions.
Further complicating matters, Sarah and Jennifer soon realized the adoption agency could only place an older child with them; the couple wanted to adopt a baby. With the window for adopting a Guatemalan baby closing fast, Sarah and Jennifer decided to return to the adoption agency that Jennifer used for G.P.’s adoption. The agency did not place children with same-sex couples, so Jennifer proceeded with the adoption process alone. Consequently, Sarah stayed home in Vermont to care for G.P. while Jennifer traveled twice to Guatemala to visit the child, M.P., whom the agency was attempting to place with Jennifer. All three members of the family went to Guatemala to visit with M.P. before M.P. was brought to Vermont. At the time of adoption, M.P. was 6 months old.
Remembering One Eleven Wines, a Pre-Stonewall Win Against Homophobic State Surveillance
Fifty years ago this month, the Supreme Court of New Jersey recognized for the first time the right of “well behaved apparent homosexuals” to congregate in bars. This landmark but little-known decision, One Eleven Wines & Liquors, Inc., v. Division of Alcoholic Beverage Control, is worth revisiting on its semi-centennial for several reasons.
First, it reminds us that the iconic 1969 Stonewall rebellion was preceded by many smaller, incremental victories for LGBTQ people. Second, the key role of Murphy’s Tavern in downtown Newark helps recast our memory of urban history. Newark in the year 1967 is mostly recalled for the explosive violence between African American residents and white National Guardsmen that July, but the city also has a rich, multiracial queer history. (The state’s high court consolidated the Murphy’s lawsuit with two other pending cases by the owners of One Eleven Wines in New Brunswick and Val’s Bar in Atlantic City, generating the case name.) Finally, this anniversary reminds us of the sheer perversity of a legal regime in which undercover agents of the state tried to “decode” homosexuality by means that read as laughably clumsy to us now, but were quite harmful at the time.
How Trump May Inadvertently Advance Transgender Rights
Donald Trump’s discriminatory attacks on transgender people have helped to define his early presidency. The president has attempted to ban transgender people from serving in the armed forces and his administration has rescinded Obama-era guidance confirming that Title IX’s protections for students include protections for transgender students. But Trump’s animus-driven actions are having the opposite effect that he envisioned. In a few different ways, Trump’s actions have inadvertently cemented, rather than weakened, the legal rights protecting transgender people.
First, by picking a fight with transgender service members and potential enlistees, Trump has all but ensured that courts evaluating the transgender military ban will ask whether the Constitution’s equal protection guarantees bar government discrimination against transgender people. Prior to this point, many cases challenging trans discrimination have raised equal protection challenges in addition to other claims. Courts have sometimes (but not always) been able to decide these cases on other bases, such as statutory grounds, avoiding the equal protection question entirely. For instance, in Gavin Grimm’s challenge to a Virginia school district’s efforts to prohibit a trans student from using the bathroom consistent with his gender identity, the equal protection challenge took a back seat to the question of whether the school’s actions violated Title IX’s prohibitions on sex discrimination in education.
But uniformed, military service members are not covered by statutory prohibitions on sex discrimination. That means the equal protection claims predominate. Therefore, courts—and the public—have been compelled to address those constitutional claims head on. And, thus far, the two federal district courts to evaluate the trans military ban have easily concluded that the ban likely runs afoul of constitutional equality.
Which highlights the second way in which Trump has inadvertently advanced transgender legal rights: Because Trump’s military policy so obviously and blatantly excludes transgender people without justification, courts have had no problem holding that it likely violates equal protection—either because it is a form of sex discrimination or because transgender status is itself a protected, suspect classification. This analysis is creating very helpful, trans-protective law, further establishing that transgender people are protected under the Equal Protection Clause. And it will aid transgender rights more broadly when equally pernicious but less obvious forms of transgender discrimination are challenged in courts. Indeed, this case law will support the pending constitutional challenges to discriminatory school policies that Trump has sought to undermine now that administrative guidance no longer bolsters a statutory Title IX claim.
Why Do Gays Keep Falling for Call Me by Your Name?
André Aciman’s Call Me by Your Name has twice been hailed as a modern gay classic: in 2007, when the novel, about an unlikely summer romance between two young men in Italy, hit bookstores, and this month, as the languorous film adaptation hits theaters. This is odd, given that the story’s main characters might more accurately be labeled bisexual—if such labels can be applied at all to this Midsummer Night’s Dream–like narrative so insistently aloof from contemporary history or politics.
Still, the fact remains that gay men adore this story about two young scholars, Elio (Timothée Chalamet) and Oliver (Armie Hammer), who embrace under the roof of Elio’s intellectual-bohemian family for a handful of weeks. Ten years ago, we adopted the book as an anthem, feverishly passing copies among ourselves, shaming anyone who hadn’t read it. And now critical praise suggests that we might fall in love with the story all over again when we flock to see it in cinemas.
“Whatever You Do Is Perfect”: Remembering the Queer Mentorship of Flawless Sabrina
Flawless Sabrina (Jack Doroshow), who died on Nov. 18 at the age of 78, was many things: drag pioneer, queer activist, muse, and counter-cultural force, to name a few. But as the people who knew her—whether as Flawless, Mother, Sabrina, Grandma, or Jack—will tell you, the most iconic role she played, and the one that mattered most to her, was as a mentor to younger people.
Jack was born in 1939, and often recounted the difficulty of growing up as a precocious gay boy of mixed Jewish and Italian ancestry in a rough and almost exclusively Italian South Philadelphia neighborhood. Eager to experience the world beyond the childhood home he often referred to in shorthand as “19th and Tasker,” Doroshow studied psychology at the University of Pennsylvania. It was during his time as a student there in the late 1950s that he began organizing the Miss All-America Camp Beauty Pageant, a cross-country circuit of drag contests that culminated each year in the Nationals Flawless Sabrina, the drag persona that Jack conceived at 19, was a pushy Jewish grandmother who could emcee the shows without making the other contestants feel threatened. In one sense, Flawless was always the queer eminence grise that would take Jack a few more decades to become.
Federal Judge Blocks Trump’s Trans Troops Ban, Rules It “Shocks the Conscience”
Another federal judge has concluded that President Donald Trump’s ban on transgender military service is unconstitutional. U.S. District Judge Marvin J. Garbis, a George H.W. Bush appointee, blocked the entirety of Trump’s order on Tuesday in a trenchant opinion that pilloried the president for his “capricious” attempt to “degrade” American service members on account of their gender identity. LGBTQ advocates could not have hoped for a better decision.
Trump tweeted the ban into existence in July without warning the Pentagon, which had allowed open transgender service since June 2016. His lawyers later converted the tweets into a memorandum that would purge trans troops who had previously been invited to serve openly. The administration claimed trans service members disrupted “unit cohesion” and required pricey medical treatment. (A RAND study commission by the Department of Defense had previously found that open transgender service would have no negative impact on the military.)
Several civil rights groups have sued on behalf of trans troops. The case at issue in Garbis’ ruling was brought by the ACLU of Maryland in the U.S. District Court for the District of Maryland. In his opinion, Garbis recognized judicial deference is typically “owed to military personnel decisions.” But he declined to apply that deference here in light of the fact that the president tweeted the ban with no “policy review” or “evidence demonstrating” that it “was necessary for any legitimate national interest.” Instead, Garbis agreed with Judge Colleen Kollar-Kotelly, who blocked the ban in October, that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.” (Why did Garbis rule on a matter that another district court judge had already weighed in on? Because each district court has a duty to adjudicate claims a plaintiff brings before it, even if a separate district court has already weighed in on the same law in a separate suit.)
Garbis also adopted Kollar-Kotelly’s reasoning with regard to the plaintiff’s equal protection claim, ruling that heightened scrutiny applies to government discrimination against transgender people. To satisfy heightened scrutiny, the government must put forth an “exceedingly persuasive justification” for its discrimination, which it has not done here. In fact, Garbis noted, the government could not even “survive a rational review,” the most deferential form of judicial scrutiny.
Call Me By Your Name, Moonlight, and the Cost of Critical Success for Queer Films
This year may go down as a banner one for cinema focused on gay and bisexual men. Moonlight, the somber indie about a young black man’s slow sexual awakening, won Best Picture at February’s Academy Awards—even if it took two tries to hand the prize to the correct party. And a handful of similarly themed productions seems poised to follow in its path in the coming awards season.
Perhaps most prominently, Call Me by Your Name, director Luca Guadagnino’s coming-of-age drama due out Friday, has been a festival favorite since it debuted in January at Sundance, with further press and industry hosannas following at February’s Berlinale and the recent New York Film Festival. If you haven’t heard about it yet, get ready to, especially regarding the film’s controversial portrayal of sex across age difference and the breakout performance of its young star, Timothée Chalamet, who brings controlled emotional ferocity to nearly every scene.
Yet while the critical success of these films may auger a readier embrace of movies about same-sex relationships in general, the actual narratives of Moonlight and Call Me by Your Name in particular reveal a stubborn resistance—even among pedigreed and “challenging” indies—to depicting same-sex romances defined by romance rather than repression, obsession, and torment. And their polite, glancing treatment of same-sex sex actually feels like a retreat from the sexual frankness of earlier trailblazers like Brokeback Mountain, Shortbus, and Blue Is the Warmest Color. These new films may deserve their formal plaudits, but their progressiveness is very much up for debate.
What Should a Gay Dad Teach His Daughters During This Period of Reckoning Around Sexual Abuse?
Hey, Daddy! is a monthly column exploring the joys and struggles of parenting from a gay father’s perspective. Got a topic idea or question for Daddy? Send your letter along to email@example.com.
What, during this awful season of reckoning about sexual harassment and assault, should two gay dads impart to their just-turned teenage daughters about male aggression?
While being gay obviously removes me from the heterosexual framework in which most of these violations took place, it remains true that gay men and straight women share at least one thing: We are both interested in men sexually yet vulnerable to them in ways that cross sexual, cultural, and political boundaries. Recent allegations against powerful men, starting with Harvey Weinstein and then cutting like a dirty scythe through Kevin Spacey, the reptilian Roy Moore, Louis C.K, Al Franken, and even former President George H.W. Bush are sickening, cascading reminders of what it’s like out there for both gay men (and boys) and for women (and girls), and of the urgency to properly arm our kids.
Jeff Mateer: Marriage Equality Will Lead to Federal Persecution of Pastors
Donald Trump has nominated conservatives to lifetime appointments in the federal judiciary at a record clip. A number of his nominees have proved controversial, including anti-gay blogger John K. Bush and Brett Talley, a 36-year-old ghosthunter with minimal legal experience. And then there is Jeff Mateer, an anti-LGBTQ lawyer nominated to the U.S. District Court for the Eastern District of Texas. Mateer has called transgender children part of “satan’s plan” and described same-sex marriage as “disgusting” “debauchery.” He also supports “conversion therapy” of LGBTQ people, a discredited practice that often amounts to psychosexual torture.
A persistent theme of Mateer’s interviews and speeches is that the granting of civil rights to LGBTQ people will lead to the persecution of anti-LGBTQ Christians. In March 2015, Mateer expounded on this idea at an event sponsored by the Pennsylvania Pastors Network, explaining that marriage equality posed a grave threat to religious freedom. He recounted the story of Texas Baptists who told him, “We’re sitting out the marriage issue.”
“You can say you’re going to sit it out,” Mateer said, “but you’re not going to be able to sit it out. It is coming to you.” By way of example, he alluded to Lt. Cmdr. Wesley Modder, a Navy chaplain who was investigated for offensive conduct. Modder was accused of telling students he could “save” gay people, who should forego relationships to be “in love with God.” He also allegedly told a student that “the penis was meant for the vagina and not for the anus” while making an obscene hand gesture. According to Mateer, Modder was merely providing “biblical counsel concerning issues like marriage and sexuality,” and faced retaliation “because it offended someone.” (After its investigation, the Navy ultimately allowed Modder to retire in good standing.)
“That’s the federal government saying that,” Mateer concluded. “What’s to stop them? They’re going to come into your churches next.”