Constitutional

ENDA: A Story of National Consensus & Party Faction

/ Matthew McKeon / Leave a comment

The progress of the Employment Non-Discrimination Act (ENDA) through Congress highlights a recent development within the GOP generally.  Amidst the party’s civil war for its identity and future, once sheepish moderate Republicans are becoming more willing to stand up against the unpopular ideological purity espoused by the party’s hard-right.

On November 7, the Senate voted 61to 30 to pass ENDA; of the 61 yea votes, 10 came from Republicans.  In a superficial sense, this could be unremarkable given the historical precedent: when the Senate failed to pass a version of ENDA in 1996, 8 Republicans joined Democrats in voting yea.  But the Senate Republicans who voted for ENDA in 2013 are a very different group than those who voted yea in 1996.  First, not a single one of the latter group are still in office.  Second, three senators who voted against the measure in 1996 – John McCain, Orrin Hatch, and Lisa Murkowski – decided to vote yea on November 7.  Finally, many of the Republicans who voted yea in 2013 represent more conservative to moderate states than their 1996 counterparts, especially Orrin Hatch of Utah, John McCain of Arizona, Lisa Murkowski of Alaska, Pat Toomey of Pennsylvania, and Rob Portman of Ohio.

This shift can be seen as reaction to recent support for LGBT rights (especially for employment nondiscrimination), even among Republican voters.  A Gallup poll conducted less than a week before the 2013 vote found that 63% of Americans would vote for a referendum instituting a national ban on sexual orientation/gender identity-based job discrimination.  That same poll pointed to an interesting discrepancy  between Republican senators and Republican voters.  Only 23% of Republican senators voted to pass ENDA this past November, whereas 58% of Republican voters would vote for such a law were it put to a national referendum.  While this demonstrates that GOP social conservatives still vastly outnumber moderates and libertarians in Congress, the November 7 vote indicates there are enough moderate Republican senators to join with even a slim Democratic majority to pass pro-LGBT legislation in the future.

Having passed the Senate, it now falls to the House to vote on ENDA; here, too, party faction continues.  House Speaker John Boehner announced through a spokesperson that he was opposed to ENDA, and that the Republican-dominated House may not even bring the bill up for a vote.  This is in contrast to many Republican representatives who have signed onto the proposed House version of ENDA, which currently has 193 supporters in total.  Many of these moderate Republicans, like Pennsylvania’s Charlie Dent and Florida’s Illena Ros-Lehtinen, also voted for the 2011 repeal of the Don’t Ask Don’t Tell policy.

While moderate voices have clearly begun to reemerge within the GOP regarding ENDA and a number of issues, it is unclear what if any long-term change these members will affect on the conservative majority of their party and future Republican platforms.  In the mean time, there appears to be enough moderates in both houses to join Democrats in passing pro-LGBT legislation aimed at discrimination based on sexual orientation.

(This post’s sources can be found at the  hyperlinked sections of text which reference them).

Accessibility of Museums

/ Angel Baker / Leave a comment

The Americans with Disabilities Act requires public accommodations (businesses and non-profit organizations) to provide goods and services to people with disabilities on an equal basis with the rest of the public.  Museums, like other businesses, that serve the public are to allow visitors with disabilities to fully experience all that museums have to offer, including exhibitions, programs, special events, publications, and videos.

The New York Times wrote an article titled “Welcoming Art Lovers With Disabilities.” It discusses that a museum held public exhibition of original art made in its “Seeing Through Drawing” classes. This exhibit was done to accommodate people who were blind or partly sighted. The art was described to them and they were allowed to touch it as well. Another museum held tours in American Sign Language to accommodate people who were deaf. This museum also had new “multisensory stations” at an allotted time which would allow those with a range of disabilities to experience exhibits though scent, touch, music and verbal imaging, or describing things for people with vision impairment. Another museum provided a wheelchair to accommodate those with mobility impairments. There are newer programs which allow families with children on the autism spectrum and cognitive disabilities to arrive early and receive materials in advance to get familiar with the building and exhibits. A different museum stressed to accommodate persons with disabilities and those without to have access to the same devices and content. Technology has played a huge role in helping to accommodate a larger variety of people with disabilities. Museum efforts to accommodate persons with disabilities are thought to increase due to the increase in the amount of people who have disabilities here in the U.S..

Under the Americans with Disabilities Act, museums must make reasonable modifications in its policies, practices, and procedures in order to accommodate individuals with disabilities.  Theses modifications are not required if it would “fundamentally alter” the goods, services, or operations of the public accommodation.  Furthermore, they must provide auxiliary aids and services when they are necessary to ensure effective communication with individuals with hearing, vision, or speech impairments.  “Auxiliary aids” include such services or devices as qualified interpreters, assistive listening headsets, television captioning and decoders, telecommunications devices for deaf persons (TDD’s), videotext displays, readers, taped texts, brailled materials, and large print materials.  Auxiliary aids that would result in an undue burden, (i.e., “significant difficulty or expense”) or in a fundamental alteration in the nature of the goods or services are not required by the regulation. However, a public accommodation must still furnish another auxiliary aid, if available, that does not result in a fundamental alteration or an undue burden.

Here, the museums have been offering modifications through auxiliary aids.  These are wonderful improvements for accommodations. The current drawbacks are that as it stands each museum is only accommodating certain individuals with certain disabilities.  Is it enough to accommodate only certain disabilities, and say that they have been compliant with the Americans with Disabilities Act?

Using Feminism to Understand White Male Privilege

/ Sara Wolkensdorfer / Leave a comment

About a week ago I stumbled on this tumblr page, white guys doing it by themselves. I thought it was the perfect satirical commentary on the patriarchal “white male” culture we live in.  As I found out after posting a link to the site on Facebook, some of my fellow law students (specifically, white males) did not think so.  They all agreed that our culture should be about promoting diversity, but they didn’t agree with how “anti-white male” everything has become.

It seems as if whenever women or other minority groups make strides, it is at the cost of the “white male” majority.  The baselessness of this argument is perfectly demonstrated in the article, “How Feminism Hurts Men” by Micah J. Murray.

What bothered me most about my fellow students commentary was that they didn’t understand my point: it is not about being a white male, it is the ideology of white male privilege. As Zillah Eisenstein states, “The phallocratic standard in Western industrial societies is white, middle-class male.” Historically, this is fact – whites have always been in more power-filled positions, and this includes white females, like myself.

I think the first step to moving forward is admitting this to ourselves – colorblindness and genderblindness are not the answer. In order to successfully move away from white privilege and towards a society where we can learn to appreciate each other’s differences, we have to accept that the structural inequalities in place position white males at the helm.  As Peggy McIntosh states, “To redesign social systems we need first to acknowledge their colossal unseen dimensions.”

This is not to say that I, or feminism, are “anti-(white) male;” many people have the perception that feminism is about man-hating. Why does it have to be one or the other? Why must we sacrifice the rights of one group in order to elevate the other? Feminism is about human rights, not necessarily women’s rights – we are all a combination of different races, sex/gender, religion, economic status, and more. Feminism is about learning to appreciate those differences in ourselves and in others.

I told all of this to my fellow students, and I hope we (as whites) can become aware of our privilege and learn to use it to change the system of inequality we currently live in.

 

The Gay State Rep. Who Voted Against Marriage Equality

/ Matthew McKeon / Leave a comment

Last week, Hawaii state Rep. Jo Jordan voted “no” on SB1, the Hawaii Senate bill that will initiate marriage equality in the state.  Jordan is an openly gay Democrat, and supports marriage equality.  And I applaud her vote.  Let me back up and explain.

As part of a special session called by Gov. Neil Abercrombie for the sole purpose of deciding the marriage issue, the Hawaii House of Representatives heard over 55 hours of testimony from citizens last week before voting 30 to 19 to pass SB1.  The House made several amendments to the bill, mostly in regards to expanding the Senate’s exemptions for religious organizations and ministers.  But to Jordan, even the House’s amended version of SB1 was not sufficient to address concerns she developed after listening to hours of testimony from Hawaiians.

Jordan gave two answers to explain her vote.  First, she was worried that a few provisions of the House version threatened the soundness of the law should it be challenged in court.  First, Jordan noted that the bill contained an ambiguous parental rights section that would grant undue Native Hawaiian status to children of same-sex couples married in the state.  (Note: the House omitted this section in its final version of the bill).  Jordan also pointed to the lax domicile requirements, which – unlike opposite-sex marriages – might not require same-sex couples to be domiciled in the state to obtain a marriage license.  Second, Jordan expressed her belief that the House version’s religious exemptions are not expansive enough to ensure that ministers and religious organizations opposed to same-sex marriage on theological grounds are not required to perform these marriages.  Jordan, a proud member of her area’s LGBT community, said that she received extremely negative reactions to her decision to vote no from members of this very community.

I support Jordan’s vote primarily for the first reason she addressed.  As someone who will personally benefit when my own state of Pennsylvania eventually ensures marriage equality, I do not want any marriage bill that is less than perfect to be passed by the legislature and signed into law.  A sloppily-drawn law can be easily over-turned by a court when marriage opponents inevitably file lawsuits.  I appreciate that legislators who advocate marriage equality bills must take their opportunities where they can find them, but pushing a bill with vague provisions and inadequate First Amendment exemptions will turn out to be a zero-sum game when it comes before a court.  Moreover, protests votes like Jordan’s could hopefully prompt another round of amendments in the other house of the legislature before the bill is sent to the governor for his signature.

To the extent that marriage equality legislation in general should contain religious exemptions, I also agree with Jordan.  I support a broad reading of the First Amendment’s Free Exercise Clause and all other First Amendment guarantees; a cramped reading of these provisions in marriage equality legislation would be needlessly corrosive to religious liberty.  Strategically, broad religious exemptions are also necessary considering that the perennially “blue” states – save Oregon – have already established marriage equality.  The state-to-state progress of marriage equality is not an inevitable or forgone conclusion.  Marriage advocates must respond to the moderately conservative or centrist politics of states that like Pennsylvania and Ohio if they hope to win the “big picture.”  That said, Jordan’s fears for the Hawaii exceptions specifically seem unfounded as they were modeled on the rather expansive Connecticut religious exemptions, which even exempt for-profit religious institutions.

People like Jordan serve a very important purpose: they must chasten their fellow advocates who walk heedlessly ahead without regard to future dangers.  I sincerely hope that Hawaii’s LGBT community will re-embrace Jordan as a fair public servant who is unwilling to sign onto flawed legislation if it means endangering the larger picture of sustainable marriage laws.

 

(For sources, please see underlined hyperlinks within this article).

Marriage Equality in New Jersey Following Court Battle

/ Matthew McKeon / Leave a comment

On Monday, October 21, Chris Christie ended his fight against the state judiciary to prevent the legalization of same-sex marriage in New Jersey; at 12:01a.m. the next day, same-sex couples were permitted to marry.  The drive for marriage equality in New Jersey was by no means an easy one: legislative and judicial initiatives both faced setbacks and opposition at every step.

The legal battle for marriage equality culminated in the New Jersey Supreme Court’s decision in Garden State Equality v. Dow, handed down on Friday, October 18.  That case began in 2011 when the Garden State Equality group and a number of same-sex couples filed a lawsuit in Mercer County’s Superior Court.  The presiding judge at first dismissed the case, but then rescheduled it for trial.  On July 3, 2013, plaintiffs filed for summary judgment in the Superior Court of New Jersey; Judge Mary Jacobson granted the plaintiff’s motion on September 27, 2013.

Judge Jacobson’s opinion in part focused on a development that will likely affect all future lawsuits challenging same-sex marriage bans: United States v. Windsor.  In Windsor, the Supreme Court of the United States struck down Section 3 of the Defense of Marriage Act (DOMA), holding that the federal government’s failure to recognize same-sex marriages legally performed in states violated the Equal Protection Clause of the Fifth Amendment.  United States v. Windsor, 133 S.Ct. 2675, 2693 (2013).

In Garden State Equality, Judge Jacobson determined that  New Jersey’s own equal protection provisions must now be re-examined “in light of the changed circumstances brought about by Windsor.”  Garden State Equality v. Dow, 2013 WL 5397372 (N.J.Super.L.), 20.  After a thorough analysis of both parties’ arguments, Judge Jacobson concluded that New Jersey’s denial of marriage licenses to same-sex couples violated the equal protection provisions of the New Jersey constitution.  Id. at 24.

After the Judge Jacobson denied Gov. Christie request for a stay pending  appeal to the state’s appellate courts, he immediately appealed to the New Jersey Supreme Court. This marked Christie’s second attempt to stymie progress towards marriage equality: in 2012, Christie vetoed a bill passed by the New Jersey legislature which would have permitted same-sex marriage.  On October 18, the New Jersey Supreme Court provided the blunt governor with a blunt answer: it would not grant a stay because it would almost certainly affirm Judge Jacobson’s ruling.  The court determined that same-sex couples could apply for marriage licenses immediately, and Gov. Christie decided to end his legal fight.

What is the significance of this legal victory for marriage equality advocates?  First, it shows that Windsor will be used by state judiciaries to invalidate denials of marriage access to same-sex couples.  Second, it shows a very curious path forward for Gov. Chris Christie and the Republican Party as a whole.  Christie will almost certainly run for president in 2016, and what sets him apart from other prospective candidates is his pragmatic rather than ideological approach to issues.

Thus, Christie’s decision to end his legal efforts against same-sex marriage was entirely keeping with his character: it does not betray any change of heart regarding marriage equality, it instead shows that he saw the writing on the wall: the state supreme court would rule against him sooner or later.  By dropping his appeal, Christie has burnished his “moderate” appeal, especially compared to other probable 2016 contenders like Marco Rubio and Ted Cruz.  While ending a losing fight might seem logical rather than laudable, Christie nonetheless has positioned himself as a realist devoid of the self-destructive bent towards ideological purity that pervades the Republican Party. While Christie’s political future is not certain, one thing is: as a result of Christie giving up, New Jersey’s same-sex couples are enjoying the benefits of legal marriage earlier than expected.