GAY AND LESBIAN
This update reports on the Supreme Court’s decision not to take up a marriage case for now, the tidal wave of pro-marriage-equality lower court decisions that preceded the court’s action and the potential use of “religious liberty” to undermine pro-equality gains. We also discuss continued work to support immigration reform within the gay community.
Marriage Equality and the Courts
Supreme Court Decides by Not Deciding
On October 6, the U.S. Supreme Court announced that it would not consider appeals in the five marriage-equality cases before it. In each of the lawsuits, a federal appeals court had ruled that same-sex couples had a constitutional right to marry but stayed the decision pending appeal to the high court. By refusing to review the appeals, the Supreme Court “acted without acting” and the stays in the five states involved—Indiana, Oklahoma, Wisconsin, Utah and Virginia—were lifted immediately, with happy couples rushing to get marriage licenses. The Supreme Court’s action also effectively spelled the end of marriage litigation in six other states that were within the jurisdiction of the three circuit courts involved in the appeals—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming.
[expand title=”Read more” elwraptag=”div” elwrapclass=”blueblaster”]As a result, 11 more states will join the freedom to marry column, meaning 62% of all Americans will live in one of the 30 marriage equality states or the District to Columbia, up from 9 states and the District, covering 16% of the population, just two years ago.
Since most legal pundits had predicted the court would rule on marriage this term, there is considerable speculation about the court’s action. Because it takes four votes to take up a case, one thing seems clear: neither the evenly balanced “liberal” nor “conservative” wings of the court saw an advantage in accepting one or more of these cases now. For the liberals (Breyer, Ginsberg, Kagan, and Sotomayor), this outcome meant a demographic surge, making marriage equality a reality for nearly two-thirds of the population. Presumably, these “facts on the ground” would make it much harder (if not impossible) for the court to do an about-face later this term or in 2016. In September, Justice Ginsberg, who had recently officiated at a friends’ same-sex wedding, hinted at this approach, saying there was “no need to rush” if all the circuit court decisions continue to come down the same way.
For the conservatives (Alito, Roberts, Scalia, Thomas), it appears that they did not feel strongly enough about these potential new “facts on the ground” to force a decision this term. That may be because they didn’t know where the presumed swing vote—Justice Kennedy—might land. Or, they knew Justice Kennedy would be for equality and feared an expansive decision that could have impact in other areas, such as discrimination claims. Or, it might be that Chief Justice Roberts has signaled that he would rather not have to take a position on this issue. If he did, he
would either be vilified by conservative forces now or have his legacy forever tainted as being on the wrong side of history. We will likely never know all the factors at play, but the result for now is certainly one to savor.
Avalanche of Pro-Equality Rulings Leading Up to Supreme Court Ruling
Almost everyone agrees that the Supreme Court would have felt compelled to take one of the marriage appeals if there had been conflicting rulings in the appellate courts. There weren’t any. In fact, since the Supreme Court struck down the Defense of Marriage Act (DOMA) with its Windsor ruling last June, there have been nearly 40 pro-marriage victories in the courts, including rulings from 22 federal district courts, 13 state courts and 4 federal circuit courts of appeal. In contrast, there have been only two negative decisions, one from a state court and one from a federal district court. This avalanche hasn’t all come from “activist liberal judges”—in fact, seven Republican federal judges, including two appellate jurists, have come down on the side of equality. Legal scholars agree that no prior Supreme Court decision has ever triggered so many lower court decisions so quickly.
While the Windsor decision—overturning a federal statute—provided a solid legal foundation for the courts to strike down state constitutional provisions, the extraordinary depth of legal expertise, developed over the last decade with Fund support, has also played a critical role. Of the five cases that were on appeal to the Supreme Court, for example, our grantees—ACLU Foundation’s LGBT Project, Lambda Legal Defense and Education Fund and National Center for Lesbian Rights—were responsible for delivering four of those five wins. Moreover, they are serving as counsel or co-counsel in 23 of the roughly 75 other cases also in the pipeline and, along with another long-time grantee, Gay & Lesbian Advocates & Defenders in Boston, are providing assistance in almost all the cases being handled by private attorneys.
The groups’ ability to help out in the private attorney cases has been bolstered by an effort, led by the Fund, which generated $900,000 in new dollars over the last year to help them enlarge their legal and support staffs and pay for expert witnesses as needed.
A good illustration of this work involves the five cases coming before the 6th Circuit Court of Appeals over the summer. Three of those suits are being handled by private attorneys; one has private attorneys, Lambda Legal and ACLU; and the National Center for Lesbian Rights is responsible for the last one. Leading up to the oral arguments before the appellate court, NCLR’s legal director, Shannon Minter (who came to the Board meeting last November), brought all the attorneys together in Nashville to practice their arguments and answers to expected questions from the bench to ensure consistency in all the presentations. [/expand]
Our Own 9th Circuit Piles On
Just one day after the Supreme Court’s decision, the 9th Circuit ruled that the anti-marriage constitutional amendments in Nevada and Idaho were unconstitutional. (Fund grantees Lambda Legal and the National Center for Lesbian Rights litigated these cases.) Because it seems certain the Supreme Court will refuse to consider an appeal, the decision means that all five of the non-equality states in the circuit—Alaska, Arizona, Idaho, Montana and Nevada—will enjoy the freedom to marry within the near future. This will increase the number of marriage equality states to 35, covering nearly 7 in 10 Americans.
[expand title=”Read more”]On the implementation front, it’s too early to know how long and how hard state and local officials will fight against complying with the courts’ decisions. State officials in Kansas, South Carolina and Wyoming promised to continue fighting on, but their chances of ultimately winning are nil. We anticipate there will be instances of county clerks in some of the “new” marriage states refusing to extend marriage licenses to gay couples and state and local agencies refusing to recognize same-sex marriages in providing services and benefits, such as rejecting joint state income tax returns or denying property tax exemptions available to widows and widowers. While this sort of behavior would be clearly illegal, it will take 12 to 24 months to bring it to an end. That said, there are few concerns about prevailing on this front and it does not appear the national gay legal groups will need additional financial assistance to do the job.
On the legal side, if the remaining circuits continue to render pro-equality rulings, it is highly unlikely the Supreme Court will take up a case this term, and marriage equality will continue to advance across the nation, circuit by circuit, without the Supreme Court ever having to render the long-awaited historic decision.
That said, marriage cases are still pending in 4 circuits covering 15 states and, as noted above, an anti-equality ruling from any of them could propel the Supreme Court to weigh in. Technically, the court has until early January to make a decision about taking up a case this term. At the time of this writing, the case in the 6th Circuit—which heard oral arguments on all five pending marriage cases on August 6—is furthest along and could issue a ruling at any time. So, it’s possible there will be a ruling after the Board docket is put to bed.
If the court does end up taking a case, most observers now believe the outcome will be a decision striking down all remaining bans on same-sex marriage, meaning gay couples would have the freedom to marry coast-to-coast by next summer. This is based on the assumption that Justice Kennedy will be on “our” side. Still others speculate that the Chief Justice might do the same for the legacy reasons described above, resulting in a 6-3 decision.
If the court unexpectedly upholds bans on same-sex marriage, it would have to decide what to do with the thousands of same-sex marriages that will have taken place by that time. Presumably, they would instruct the lower courts to honor those marriages (as was done with the California marriages that happened before voters passed Proposition 8). Then, the only way forward will be a grinding effort to overturn those bans at the ballot box, state by state. There are a handful of states where that would be possible over the next three or so years, including Colorado, Nevada and Ohio.
With all of these uncertainties, the Civil Marriage Collaborative is weighing how to best use its resources in 2015. The most likely priorities are supporting public education efforts (1) in states that have secured the freedom to marry but are most imminently in danger of having that freedom eroded by “religious liberty” attacks (discussed below); and (2) in states that still do not have the freedom to marry, to create the most favorable possible climate for the circuit courts still in play. We will update you on these options at the Board meeting.
Marriage Equality Without Basic Civil Right Protections
The surge in court-delivered marriage wins will result in gay people in at least 14 states having the freedom to marry but lacking basic protections from discrimination in employment, public accommodations, housing and education. (Until this year, no state had achieved marriage equality without first having protected gay people from discrimination.) That means that a gay person in one of these states could get married, but end up getting fired when that news reaches his or her employer. Like the Civil Marriage Collaborative, the State Equality Fund is grappling with how to work in this new, incongruous environment.
[expand title=”Read more”]The Anti-Marriage Movement’s Plan B: Using “Religious Liberty” to Undermine Marriage Equality
Unfortunately, the happy outcomes in recent weeks, and those we hope to see in coming months, are marred by an unpleasant reality. These gains are likely to ignite a counterattack framed around the protection of “religious liberty.” If not blocked quickly and aggressively, this blowback has the potential to significantly undermine not only marriage equality but also basic civil rights protections for women, gay people and religious minorities in up to 20 states.
At the Board meeting last March, Lambda Legal’s Jennifer Pizer spoke about this broad effort, particularly in the form of state legislation, to allow individuals and businesses to discriminate based on religious belief. It is being led by well-funded and powerful forces, including the Southern Baptist Convention, Focus on the Family, the U.S. Conference of Catholic Bishops, and the Alliance Defending Freedom. Their argument is that religious liberty is under attack in America and that people of faith are being “threatened, punished and silenced” by anti-faith forces. While we deeply understand that well-intended people of faith may share this sentiment, the Fund has chosen to support marriage equality because of our belief that everyone should be able to live their lives free from discrimination and with dignity.
Over the last half-century, the nation has worked to address this tension between religious freedom and civil rights by making churches and religious institutions exempt from nondiscrimination laws when the activity in question involves promoting or practicing religions. So, Catholic schools may require that all teachers be Catholics, but may not discriminate against a janitor because he or she is a Protestant. However, when it comes to the delivery of services (e.g., food, shelter, and adoption services) that are paid with government resources, most jurisdictions require that the church entity involved comply with federal, state and local nondiscrimination laws.
Giving individuals the right to opt out of state-based or regulated programs is not new. It has been used with remarkable “success” in the other areas. Since Roe v. Wade, for example, 47 states have passed laws that allow medical professionals, based on their religious beliefs, to refuse to provide abortion services. Thirteen states allow some heathcare providers to refuse to provide services related to contraception and twelve permit pharmacists to refuse to dispense contraceptives. The vast majority of states have also adopted legislation allowing parents to opt their children out of school classes that they believe conflict with their religious beliefs.
What is new is the potential breadth and depth of possible new “religious liberty”-based measures, fueled by the Supreme Court’s Hobby Lobby decision in June. In Hobby Lobby, the court ruled that, under the federal Religious Freedom Restoration Action, closely held corporations—which are 90% of all American businesses—are not obligated to provide their female employees certain contraceptives (e.g., intrauterine devices [IUDs]) mandated by the Affordable Care Act because the government could have found less restrictive ways to provide contraceptive coverage. The ramifications of the decision loom large because commercial enterprises may now assert religious beliefs to claim exemptions from laws and regulations.
Opponents have signaled for some time that they plan to undercut marriage equality by employing the “religious liberty” frame. Over the last 18 months, the handful of businesses, that have been fined by state human rights agencies for refusing services to gay married couples (e.g., floral shops, bakeries, and event facilities) have been widely portrayed by conservative groups and right-wing media as helpless victims of intolerant gay-rights zealots. In October, at the Values Voters Summit, a high-profile annual conference of the conservative movement, Frank Schubert, the key strategist behind the Proposition 8 campaign, was blunt. He said that if the Supreme Court overturned existing bans on same-sex marriage, anti-marriage forces would need to find the “gay version” of “partial birth abortion” and follow the same path as anti-abortion groups following Roe v. Wade, namely, “incremental” wins to chip away at the freedom to marry.
The most likely legislative vehicles that will be deployed are state-based “Religious Freedom Restoration Acts” (RFRAs), patterned after the federal law that was the subject of the Supreme Court’s Hobby Lobby decision. Buoyed by Hobby Lobby’s interpretation of what constitutes a “substantial burden” (i.e., not a lot) and how hard the government needs to work to minimize the burden (i.e., very hard), anti-gay marriage forces are pivoting to pushing new “super-RFRAs” (including amending RFRAs in some of the 22 states that already have them) to:
• expressly protect corporations, à la Hobby Lobby;
• lower the legal standard from “substantial burden” to simply “burden” (to encourage as many such claims as possible);
• ensure that the government will pay attorneys’ fees for individuals who bring these actions and prevail (also to encourage as many such claims as possible).
There are several other legislative ways to authorize discrimination, such as amending existing nondiscrimination and matrimonial laws to provide religious-liberty carve-outs. For example, as states rewrite their marriage statutes to comply with the new court rulings there will be significant pressure to include a provision that no person may be penalized for declining to support any marriage ceremony or anything associated with the marriage (e.g., invitations, banquet halls, rings, limousines, etc.) if doing so would violate the person’s deeply held religious beliefs.
While marriage equality gains will be motivating these measures, they won’t just affect gay couples and marriage-related services. For example, a Christian-owned apartment complex would have grounds, citing religious belief, to refuse to rent to an unmarried heterosexual couple, or the owner of a Christian bookstore could fire an unmarried salesclerk who becomes pregnant. Colleges could be forced to allow overtly anti-Semitic or anti-Muslim “faith-based” groups to meet on school property. A pharmacist could refuse to fill a prescription for Truvada (a pre-exposure HIV prophylaxis medication) on the grounds that the user will be involved in gay sex, which violates his or her beliefs. The possibilities seem endless.
How serious is this threat? A recent scan indicated that up to 23 states could face RFRA-based initiatives in the 2015 legislative sessions that begin in January.
Preparing to Defend the Freedom to Marry
Our funding partners and our anchor marriage equality grantees, including the national gay legal groups, are deeply concerned about this threat. They are also aware that—in contrast with the strong, coordinated national campaign that has been developed over the years to advance the freedom to marry—the movement is woefully unprepared to defend that freedom from being chipped away. For example, there hasn’t been sufficient research to come up with messages that can overcome the potency of arguments wrapped in religious liberty and alleged infringements on the rights of small-business owners. Likewise, there is no analog to Freedom to Marry to coordinate efforts on the ground, including deploying messengers and seasoned campaigners to hot spots. Moreover, the legal groups don’t yet have a common litigation strategy or mechanism for divvying up states like they’ve developed on the proactive marriage front.
[expand title=”Read more”]With Fund leadership, the gay movement’s five largest funders—the Haas, Jr. Fund; Arcus, Ford and Gill foundations; and Wellspring Advisors—have agreed to use their collective clout to bring key gay and non-gay groups together to assess gaps, identify the most urgent threats and needs, and, we hope, develop a common game plan and funding strategy. Fortunately, we have engaged former Gill Foundation President and Fund staff member, Tim Sweeney, to lead this assessment (see Pride Foundation on page 8-11). The ultimate goal is to do everything possible to defeat the “religious liberty” threat as quickly as possible and not be bogged down in years of defensive battles like those of the reproductive and civil rights movements. I will have more to report at the next Board meeting.
Gay Community Support for Immigration Reform
The investments made last year by the Fund and other funder partners to build support for immigration reform within the gay community continue to pay off. For example, a coalition of four Fund grantees—the National Gay and Lesbian Task Force Foundation, GetEQUAL Education Fund, National Queer API Alliance, and National Center for Transgender Equality—held a press conference and rally in front of the White House to criticize President Obama’s announcement in September that he would put off taking administrative action to help more undocumented people obtain relief from the threat of deportation until after the November elections. Similarly, gay groups are working hard to support pro-immigrant policy advances and to block anti-immigrant measures in several states, including Colorado, North Carolina, Texas and Oregon. In addition to broadening grassroots and organizational support for reform, we hope this work will help ensure that immigrants and their allies will in turn support pro-gay measures at the local, state and federal levels.
We look forward to providing you an update at the Board meeting on new developments and answering any questions you may have.
Staff: Matt Foreman Docket date: 11/12/14
PRESIDENT’S DISCRETIONARY GRANTS
NATIONAL CENTER FOR LESBIAN RIGHTS
Grant Awarded: $40,000 to educate the public about anti-gay myths and stereotypes of the movement against marriage equality
Haas, Jr. Fund History: Total: $2,380,180 from 1999–2014
Last Grant: $112,500 in 2014
[expand title=”Read more”]For more than three decades, the National Center for Lesbian Rights has been a driving force for gay equality, using impact litigation, advocacy and community education. The organization balances its high-profile marriage equality litigation with its high-quality representation for the poor and disenfranchised, including undocumented gay immigrants. The organization is now playing a leadership role in a funder-supported collaborative project to provide assistance in the more than 50 marriage-related lawsuits being litigated by private attorneys in the wake of the Supreme Court’s 2013 decision striking down DOMA. With Fund support, the Center is coordinating a campaign that focuses attention on the anti-gay positions of those leading efforts to deny the freedom to marry to gay people.
Reviewed by: Matt Foreman Approved: 6/23/14
COLUMBIA UNIVERSITY OF NEW YORK – LAW SCHOOL
New York, NY
Grant Awarded: $25,000 for the What We Know Project, to disseminate authoritative research that debunks myths and stereotypes about gay people
Haas, Jr. Fund History: None
[expand title=”Read more”]The Columbia Law School, which was founded in 1856, is one of the nation’s most prestigious institutions of legal education. In 2006, it founded a Sexuality and Gender Law Clinic, the nation’s first clinic directed by a full-time law school faculty member and dedicated to legal and public policy issues related to gender and sexuality. The law school’s new What We Know Project is designed to give scholars, the media and advocates access to the best scholarly research on issues, such as parenting and marriage, related to gay equality. Part library and part policy education tool, this online portal is designed to make immense amounts of research material manageable and accessible, helping researchers learn where there is scholarly consensus on a given topic. It is the brainchild of Dr. Nathaniel Frank, who, along with Aaron Belkin, helped lead the Palm Center’s successful campaign to undermine “Don’t Ask, Don’t Tell” through facts and savvy media tactics. By helping ensure that debates over gay equality are grounded in hard data, this work furthers the Fund’s goal to secure equal rights for gay people.
Reviewed by: Matt Foreman Approved: 7/14/14
Grant Awarded: $50,000 to assess the best ways to help ensure that “religious liberty” claims do not erode gains in marriage equality and nondiscrimination protections
Haas, Jr. Fund History: $25,000 in 2009
[expand title=”Read more”]The Pride Foundation has worked since 1985 to connect and build the Pacific Northwest’s lesbian, gay, bisexual and transgender community’s work in pursuit of equality. In addition to its convening, leadership development and rural outreach programs, it awards more than $1 million in grants and scholarships each year, making it the nation’s largest gay community foundation.
At the behest of the Fund and four other major funders of the gay movement, the Foundation is coordinating a project to bring key gay and non-gay organizations together to develop a shared game plan to address the increasing use of “religious liberty” to justify discrimination against gay people and to deny female employees access to contraception. This work includes developing short-, medium- and long-term goals to confront this challenge through coordinated research, messaging, litigation, advocacy and public education. Led by Tim Sweeney, a widely respected gay leader and former Fund Program Director, the goal of this project is to keep hard-won gains for gay equality from being eroded under the guise that they somehow impinge on religious freedom.[/expand]
Reviewed by: Matt Foreman Approved: 8/21/14
NATIONAL QUEER ASIAN PACIFIC ISLANDER ALLIANCE
New York, NY
Grant Awarded: $50,000 to increase understanding and support for immigration reform within the gay community
Haas, Jr. Fund History: $35,000 in 2013 (Tides Center)
[expand title=”Read more”]The National Queer Asian Pacific Islander Alliance is a federation of 40 gay Asian American and Pacific Islander (AAPI) organizations working since 2005 to develop grassroots leadership and organizational capacity to challenge homophobia, racism and anti-immigrant bias. The organization has made immigrant rights a priority for several years, including amplifying the voices of gay AAPI immigrants in both the national and gay community debates around reform. Last year, it was one of the most productive groups involved in a multi-funder-supported initiative to increase support for immigration reform within the gay community, organizing events in key cities across the nation.
With support from the Fund and the Four Freedoms Fund, the Alliance is mobilizing its network to continue the push to fix the nation’s broken system, with a new focus on federal administrative action. This work furthers the Fund’s goals of promoting immigration reform and building alliances between the gay and immigrant rights movements.
Reviewed by: Matt Foreman Approved: 7/14/14
WOMEN’S FOUNDATION OF CALIFORNIA
Grant Awarded: $50,000 to engage gay people in immigration reform and civic engagement efforts in the Inland Empire
Haas, Jr. Fund History: Total: $360,500 from 1997–2013
Last Grant: $160,000 over two years in 2013
[expand title=”Read more”]The Women’s Foundation of California has worked for more than 30 years to create healthy, safe and economically prosperous communities throughout the state. At the behest of the California Civic Participation Funders, a collaborative the Fund helped create, the Foundation is serving as an intermediary to strengthen civic participation organizations in the Inland Empire. This work is sorely needed: even though this large region of the state is nearly half Latino and Asian, it enforces harsh anti-immigrant policies, and people of color are severely underrepresented in voting and policymaking. Moreover, as in many rural parts of the country, the gay community’s organizational infrastructure is extremely weak, gay issues are largely ignored, and local immigrant rights groups do not know how to welcome and engage gay people and their talents.
With this exploratory grant, the Foundation is working with its civic engagement grantees and other groups in the region to ensure their internal policies and practices are gay-affirming, to include gay people in nonpartisan get-out-the-vote activities and to integrate gay equality and justice issues in the groups’ collective policy advocacy agenda. This is part of a larger effort to reach out to and build power among long-ignored populations. The goal of this project is two-fold: (1) tap the energy and resources of the gay community in support of region’s civic participation initiatives; and (2) test models for immigrant rights groups to engage gay people in non-urban areas of the country
Reviewed by: Matt Foreman Approved: 8/21/14[/expand]
NATIONAL LESBIAN & GAY JOURNALISTS ASSOCIATION
Grant Awarded: $160,000 over two years to provide gay newspaper editors and bloggers with in-depth information about key issues in the struggle for gay equality and immigration reform
Haas, Jr. Fund History: Total: $215,000 from 2012–2013
Last Grant: $75,000 in 2013
[expand title=”Read more”]The National Lesbian & Gay Journalists Association is an organization of journalists, media professionals, educators and students working since 1990 from within the news industry to foster fair and accurate coverage of lesbian, gay, bisexual and transgender issues. It serves as both a watchdog and an educator, helping fellow journalists recognize the harms caused by biased, stereotypical or uninformed coverage of gay people and gay topics.
At the Fund’s behest, the Association is continuing to convene, each year, up to 60 major gay newspaper editors, reporters and bloggers to help them better understand and communicate nuanced and complex subjects, including immigration reform and efforts to use “religious freedom” to justify discrimination against married gay couples.
Reviewed by: Matt Foreman Approved: 8/21/14