Chris Copeland – Law Street

Due Process is the Red Herring in the LGBTQ Movement

Chris Copeland — Wed, 23 Jul 2014 18:37:53 +0000

The U.S. Court of Appeals for the 10th Circuit recently ruled that states cannot deprive a person of the fundamental right to marry simply because he or she chooses a partner of the same sex. This marked the first time that a federal appeals court has weighed in on the matter, and the early thinking is that the Supreme Court may take this case. Finally, marriage equality in all 50 states, right?

This is all good, yeah, woohoo! (Sidenote: my gaydar sucks big time. Straight guys are gay, gay guys are straight. Hell, lesbians are twinks and vice versa, but I thought I had developed a fail-safe. To determine if a guy is family, I simply look down at his ring finger. Last week, I caught myself doing this. I looked down at this dude’s finger, which indeed was adorned with a ring. Done — he’s straight. Then I remembered the whole marriage equality thing: he’s gay! But, as he opened his clearly European mouth and uttered something about the weather, his Belfast burr turning “air” to “ire,” I remembered the Euro-metrosexual-monkey-wrench! Gay or straight, damnit?! Alas, I resigned myself to utter cluelessness.)

Courtesy of Quick Meme

In all seriousness, it’s really awesome that the lines between gay relationships and straight relationships are increasingly blurry. That’s not the endgame, though. Even if the Supreme Court takes this Utah case and sides with the 10th Circuit about the fundamental right to marry (big assumptions with the Roberts Court), it won’t affect other types of discrimination against the LGBTQ community. Marriage equality is only the opening salvo in a still-uphill battle for full equality. We ought not lose sight of that.

Don’t get me wrong, ever the Machiavelli in me says sure, get to marriage equality by any means necessary. Those means, under the reasoning of the 10th Circuit, would be the Fourteenth Amendment’s Due Process Clause. That is, if the Supreme Court rules favorably in this case, and on due process grounds, it would mean that no person, gay or straight, can be deprived of the right to marry. But due process deals only with “fundamental rights.” What about laws that discriminate against gay men in blood donation? What about workplace discrimination?

Courtesy of Matt Buck via Flickr

A decision on due process grounds would not touch these other types of discrimination, but a ruling under the Fourteenth Amendment’s Equal Protection Clause would. That would deal with all manner of discrimination against the LGBTQ community, including marriage equality.

Brief Equal Protection primer: Under the Fourteenth Amendment’s Equal Protection Clause, laws that single out a specific group for differential treatment or disproportionately impact that group, if challenged, are subject to judicial review. If the law discriminates on the basis of a suspect classification, such as race, it must satisfy the most exacting degree of review — strict scrutiny. Thanks to second-wave feminism, discrimination on the basis of sex/gender is subject to intermediate scrutiny. As it stands now, discrimination on the basis of sexual orientation is subject to the lowest, most deferential level of judicial review — rational basis review.

Blah, blah, blah, I’m losing you so let me get to the point. Until the Supreme Court rules on equal protection grounds rather than due process that sexual orientation-based discrimination merits a higher level of judicial scrutiny, discriminatory laws will continue to receive minimal judicial scrutiny.

I’m glad that marriage equality is sweeping across the country, and that the Supreme Court may finally have occasion to legalize it nationwide. Indeed, by no means would this be a pyrrhic victory. However, it would only nominally affect other issues of discrimination against the LGBTQ community, issues that are arguably more important than marriage equality.

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Chris Copeland (@ChrisRCopeland) is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street.

Featured image courtesy of [Victoria Pickering via Flickr]

Chris Copeland

Chris Copeland is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street. Contact Chris at staff@LawStreetMedia.com.

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Gay is NOT the New Black

Chris Copeland — Wed, 16 Jul 2014 10:30:13 +0000

“Gay really is the new black,” proclaimed Daily News columnist John McWhorter in a recent article. John McWhorter is über insightful and I always enjoy watching him on Melissa Harris-Perry, but as Rosa Parks so eloquently said, “No.” No, gay is not the new black.

Courtesy of the Daily Californian

America’s legacy of racism is vastly different from its history of sexual-orientation discrimination and homophobia. The struggle for racial equality is also inapposite to the gay rights movement. The twenty-first century world in which the gay rights movement has so rapidly progressed has itself become a rapid place. Instant gratification is no longer instant enough. “Attention span” has become a sort of a misnomer, suggesting that our attention lasts long enough to actually span. Once upon a time, the adult attention span was somewhere around twelve minutes; that is, the average adult could stay focused on a task for twelve minutes without becoming distracted. Today, however, it’s dropped to five minutes. Some reports even claim that the average attention span on the Internet is two and a half seconds.

Courtesy of David Goehring via Flickr

That’s just ridic. Alas, these are the times in which we’re living. This wasn’t always the case.

Change used to happen at a snail’s pace and the civil rights movement reflects as much. Understanding then that “the arc of the moral universe is long but bends toward justice,” as Martin Luther King, Jr. put it, civil rights lawyers like Thurgood Marshall employed a strategy of chipping away at Plessy v. Ferguson’s wall of segregation. They slowly and methodically attacked the system piece by piece. After more than fifty years, the chipping-away strategy culminated with the Brown v. Board of Education cases in 1954 and 1955, reducing the wall of segregation to a pile of rubble. The gay rights movement on the other hand has bulldozed its way toward some semblance of equality. It was just the mid-1980s when the Supreme Court gave us Bowers v. Hardwick — when it upheld the constitutionality of a state sodomy law that criminalized private, consensual oral and anal sex between two gay men.

In Lawrence v. Texas in 2003 the Court overruled its decision in Bowers. And in the ten or so short years since Lawrence, discriminatory laws across the country have fallen at a neck-breaking pace. Now, I’d probably be hard-pressed to find many people who’ve even heard of Bowers v. Hardwick.

I’ll concede, the reasons the LGBTQ community has accomplished so much so fast are far more complex than I’ve intimated. Somewhere in the mix of reasons is necessarily that the world itself is a faster place today. But who the hell has the time or attention span to delve into all those complexities? Maybe I do? After all, I did spend oodles of time before and during law school thinking about all this stuff. So, after much thought and deliberation about this topic, I’ve come to the conclusion t–

What were we talking about again?

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Featured image courtesy of [Andy Smith via Flickr]

Chris Copeland

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Down the Hobby Lobby Rabbit Hole: Are Federal Anti-Discrimination Laws Next?

Chris Copeland — Tue, 08 Jul 2014 17:56:00 +0000

RANT WARNING: Be advised, this post may cause bouts of annoyance, defeatism, and pessimism.

Courtesy of Wifflegif

Initially, I planned to write an upbeat post about the recent celebrations of pride happening across the country: the Puerto Rican Day Parade, LGBT Pride, America’s success in the World Cup, and the Fourth of July, to name a few. I thought it would be interesting to extrapolate from these events a larger analysis of celebrating (or not) one’s identity. And then damn Hobby Lobby happened. Womp womp.

Last week, the Supreme Court held in two cases collectively referred to as Hobby Lobby that for-profit corporations are exempt from complying with the Affordable Care Act’s contraception mandate on the basis of religious beliefs. Specifically, the Court found that the ACA’s contraception mandate was not the “least restrictive” way for the government to implement this law and thus it created too substantial a burden on the religious freedoms of the companies at issue. In reaching this conclusion, the Court pointed to a less restrictive workaround in the ACA for nonprofits: If there are religious objections to a medical treatment, third parties will provide coverage to the employees.

More broadly, as Justice Ruth Bader Ginsberg argued in her 35-page, no-I’m-not-retiring-yet-assholes, dissenting opinion, Hobby Lobby stands for the principle “that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

That’s right: corporations are indeed people. Those legal entities (which, by the way, are created for the purpose of separating the individuals involved from the corporate entity so that those individuals may be shielded from legal liability) apparently eat, sleep, breath, love, and pray? They sound more human than Darth Vader Cheney.

And as persons, corporations can also speak freely (i.e., wholly bankroll political campaigns) and freely exercise their religion (i.e., infringe on a woman’s reproductive rights).

Hell, with the direction in which this Court is taking corporate personhood, businesses — like any actual individual person in this country — may be able to discriminate on a wider scale. What happens when a business owner’s religious beliefs clash with, say, Title VII’s ban on discrimination in employment? What happens when a business owner acts on his belief that being gay is a sin? In answering these questions, I keep seeing the Jim Crow days when business owners were free to discriminate on the basis of race; I keep seeing the 1980s when they were openly homophobic and sexist. That idea is indeed what makes this “a decision of startling breadth,” as Justice Ginsberg put it.

Sure, I understand that slippery-slope, parade-of-horribles arguments are necessarily illogical. But tell that to African Americans who lived through the aftermath of Plessy v. Ferguson’s separate-but-equal holding. Yes, Justice Samuel Alito, writing for the majority in Hobby Lobby, did promise that the ruling would not open the door to discrimination (exemptions to our anti-discrimination laws). Call me cynical, call me a blasphemer, but frankly I don’t have a whole lot of faith in this Court’s word — this Court that has been so adept at totally flouting precedent and stare decisis when it suits its political ends. Remember Citizens United? Bush v. Gore anyone?

Courtesy of DPMS via Flickr

In fact, we need look no further than last Thursday. Just days after the Court issued its Hobby Lobby ruling, it granted an unsigned emergency order in a new case involving Wheaton College, finding that the very workaround it had hailed as a less restrictive means by which the government could implement the ACA was also unconstitutional — that it substantially burdened the religious freedom of religious employers. What on Earth?! In the span of less than a week Hobby Lobby has already gone further than Hobby Lobby!

So now I sit here wondering what’s next. I wonder how far down this road the Supreme Court will take us. Debbie Downer over here, I know. But this is seriously like the worst season finale ever.

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Featured image courtesy of [American Life League via Flickr]

Chris Copeland

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LGBT Community Makes Great Strides, Other Minority Groups’ Rights Eroding

Chris Copeland — Fri, 20 Jun 2014 10:30:15 +0000

Gather ‘round, Constant Reader (if I may be so presumptuous with my very first blog post). Let’s wax nostalgic for a tick.

There we go. That should set the mood.

It’s 1987. Hollywood’s been treating the world to some gems: Adventures in Babysitting; The Lost Boys; Nightmare on Elm Street III. On the politics front, the sun is setting on Reagan’s presidency and the Cold War. Most importantly, though, the Washington football team (which shall remain nameless) has made it to Super Bowl XXII. It’s halftime and they’ve just hung 35 second-quarter points on the Broncos — a Super Bowl record. By game’s end, the Washington football team’s quarterback, Doug Williams, would be become the first black quarterback to win the Super Bowl.

Despite Williams’ achievement, the idea persisted that black quarterbacks aren’t as smart as their white counterparts. Years later, this refrain played out to major controversy when Rush Limbaugh called Donovan McNabb, quarterback of the Philadelphia Eagles, overrated, explaining that the liberal, mainstream media with its PC bromides just wanted to see a black quarterback succeed.

Fast forward to this year. And thank you, by the way, for allowing me a momentary walk down memory lane. It does indeed warm my very gay heart cockles to talk football (usually 49ers). But, with that jaunt I have a point: the NFL appeared to have progressed by leaps and bounds when the St. Louis Rams drafted Michael Sam earlier this year, the first openly gay football player in the NFL.

Courtesy of PopWrapped

To boot, the cameras then panned to him planting an Al-and-Tipper-level kiss on his boyfriend.

Yeah, that disaster

Even more, Michael Sam is black and in an interracial relationship. Boom! Check, check, and check. Who’da thunk the NFL could be so forward? So au currant?

I tried to place the Michael Sam moment into the larger context of recent progress generally. In President Obama’s purportedly transcendent America, same-sex marriage has rapidly swept across the country. Just earlier this year, for instance, Judge John E. Jones III of Pennsylvania’s Middle District struck down Pennsylvania’s same-sex marriage ban, finding it in violation of the Constitution’s due process and equal protection clauses. Pennsylvania thus became the nineteenth state to effectively legalize same-sex marriage. Last year, the Supreme Court issued favorable rulings in the California Proposition 8 and DOMA cases.

Then I remembered that I’ve only ever lived really in the most liberal of hotbeds, Los Angeles and New York City, and I slowed my roll. In fact, I think we all ought to slow our rolls. While the LGBTQ community continues to march toward full equality, other minority communities are seeing their gains erode. Just look at the Supreme Court’s recent ruling upholding Michigan’s constitutional amendment banning affirmative action in admissions to the state’s public universities. (As an aside though, yay for Justice Sotomayor’s blistering, two-snaps-and-an-around-the-world smack down dissent!)

The LGBTQ community is rightfully and deservedly celebrating its recent electoral and legal victories. As a member of the community I have tempered my elation, though, because I feel deeply that the fortunes of “discrete and insular minorities” are intertwined. No doubt, the Michael Sam moment was indeed big; a watershed moment totally deserving of celebration. But let’s not get too ahead of ourselves. The NFL still makes its bones playing to the hyper-heteronormative crowd. Just sit through those Go-Daddy commercials during the Super Bowl. We aren’t yet living in the post-racial, post-gender, post-et-cetera world promised with the election of Barack Obama. Bigotry accumulated over time tends to pervade everything from society’s institutions to even its more subtle, discursive acts of culture. I’ll more fully celebrate the Michael-Sam-type moments when progress begins to happen on all fronts, not just one.

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Featured image courtesy of [VJnet via Flickr]

Chris Copeland

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