New: ECLECTIC RANT: LGBT Civil Rights Work Still to be Done

Ralph E. Stone
Saturday September 19, 2015 - 03:35:00 PM

In Obergefell v. Hodges, the U.S. Supreme Court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Thus, the same-sex marriage issue has been won.  

Kim Davis -- the Rowan County, Kentucky clerk who refused to issue marriage licenses to same-sex couples -- is just an unfortunate sideshow. 

However, there is still work to be done. Discrimination against members of the Lesbian, Gay, Bisexual and Transgender (LGBT) community, based on sexual orientation and/or gender identity continues in other areas. According to the ACLU, twenty-two states and the District of Columbia have laws that ban discrimination in housing and employment with respect to either sexual orientation or gender identity or both. While three states ban state-wide employment non-discrimination, these laws cover only sexual orientation (not gender identity). Many cities and counties have enacted comprehensive anti-discrimination laws, and others have enacted incomplete ordinances that leave out the transgender community or that only provide limited protections. 

In 1993, Bill Clinton signed into law the Religious Freedom Restoration Act (RFRA) that "ensures that interests in religious freedom are protected." The federal RFRA prohibits government from "substantially burdening" individuals' exercise of religion unless it is for a "compelling government interest" and is doing so in the least restrictive means. The federal RFRA does not apply to states. 

What should concern us now is that many states have passed, and others are considering passing, Religious Freedom Restoration Acts which expand the religious freedom defense not only to government action but to businesses. Business owners will now have a stronger legal defense if they refuse to serve lesbian, gay, bisexual and transgender customers and want to cite their faith as justification for their actions, especially in those states without an LGBT anti-discrimination law. I bet we will see these laws used to refuse service to LGBT people from accessing employment, housing, and public accommodations.  

What is needed is passage of the proposed federal Equality Act, which would establish explicit, permanent protections against discrimination based on an individual’s sexual orientation or gender identity in matters of employment, housing, access to public places, federal funding, credit, education and jury service. In addition, it would prohibit discrimination on the basis of sex in federal funding and access to public places.  

Democratic presidential candidates Hillary Clinton, Bernie Sanders, and Martin O’Malley have endorsed passage of the Equality Act. To my knowledge, no Republican candidate for president has endorsed the Equality Act. 

Given the Republican control of Congress, passage of the Equality Act is unlikely.