Thursday, July 20, 2017

Liberal Justice Health Watch is On

Written by  Sage Piper

Seventy-eight. 80. 84. These are the ages of three of the liberal Supreme Court justices about whom speculation on possible retirement dates swarm daily – Justices Breyer, Kennedy, and Ginsburg. As the age scale tips against them (and Kennedy drops loaded retirement hints) all we can do is watch and anguish over when and how the major advancements and institutional progress that have been won for our community will be overturned and erased, one by one. Yes, the spector of another three-and-a-half years with Trump and/or Pence in the Oval Office looms larger and more threatening by the hour.

Meanwhile, at age 49, new Trump appointee Justice Neil Gorsuch is revved up and ready to adjudicate. Before his confirmation, LGBT advocates had little concrete information to go on with regard to Gorsuch’s actual opinions on LGBT issues, notwithstanding an op-ed he penned in the National 12 years ago which accused liberals of using the courts “as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide.” But Gorsuch is begininning to show his true colors, and they aren’t rainbowific.

Last month the Supreme Court ruled the Constitution requires states to list same-sex parents on their child’s birth certificates. Gorsuch, along with Thomas and Alito, dissented – and Gorsuch argued that exclusion from a birth certificate is not a violation of one’s constitutional rights. “Nothing in Overgefell (Supreme Court case which legalized gay marriage) indicates that a birth registration regime based on biology ... offends the Constitution,” he wrote. Could Gorsuch be trying here to give conservative and hostile state courts a strategy, attempting to revive the biological rationale for treating same-sex couples differently? If so, we need to prepare ourselves. “I think he’s trying to provide a road map for hostile state courts by suggesting that they should go back to these biological justifications. He wants to recast family law in this narrowly biologistic way that’s reverse engineered to exclude gay people,” says Shannon Minter, legal director of the National Center for Lesbian Rights, which represented the Arkansas plaintiffs in this case.

Other threats to established protections are underway as well across the country. Appeals are back in place to block HB 1523, a Mississippi law which allows magistrates to refuse to issue marriage licenses to same-sex couples and business to deny them their service. “HB 1523 is offensive to the rights of LGBT and other dissenting Mississippians and to the Supreme Court’s command of this burning civil rights issue,” wrote the attorneys asking the Fifth Circuit Court of Appeals to block the law.

The Supreme Court recently announced it will hear the case of a baker who refused to create a cake to celebrate the marriage of a Colorado gay couple, citing his religious objections to same-sex unions. The case is one of several which has been filed on behalf of businesses such as other bakeries, florists, and photography studios across the country which claim that forcing them to serve gay couples violates their constitutional rights. These are businesses which choose to serve the general public, and yet they are trying to force their own bigoted definition of just who the “general” public is and what actions of said “general” public are acceptable to serve.

Are we not entitled to equal treatment, and access to equal goods and services, as our fellow Americans? Would there be such an issue if a restaurant refused to serve to Asian-American customers? If a sports arena refused to let African-Americans drink from the water fountain? Or if a florist refused to make arrangements for customers who were police officers? If a business depends on serving the public to make its livelihood, does it not deserve to lose its livelihood if it does not treat each and every customer the same? In what kind of a country do we all live in, circa 2017?

When David Mullins and Charlie Craig originally filed discrimination charges against the baker who refused to make their wedding cake, they won both in the courts and before a civil rights commission. Some might ask why it is so important to keep fighting this battle – why not just go to the baker down the street, and let it be? Because if the door opens to a religious exemption to public accommodations in this case, it would swing wide for exemptions to every other civil rights law – including employment, education, housing, credit, athletics, public services, and beyond. We cannot allow this opening.

“This has always been about more than a cake,” David Mullins has stated publicly. “Businesses should not be allowed to violate the law and discriminate against us because of who we are and who we love.”

Sounds simple, doesn’t it?


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