Utah Passes Non-Discrimination Law

This month the Utah legislature -with the blessings of the Church of Latter-Day Saints- passed a law banning discrimination on the basis of sexual orientation.  It also covers gender identity.  Unlike most such statutes, however, Utah's law does not cover public accommodations.  Thus, bias in employment and housing is now illegal, but Utah businesses can still deny services to individuals or couples based on their sexual orientation.

Religious Freedom Statutes

This week Arizona Governor Jan Brewer (R) vetoed a bill passed by the Republican-controlled Arizona legislature.  Dubbed a "religious freedom" statute, the law would have exempted both individuals and companies from legal penalties if they violated the civil rights of customers, patients, etc. because of the perpetrator's sincerely held religious beliefs.  The backlash from major employers, citizens, and potential tourist events to Arizona led to various initial supporters and even the state's two Republican US Senators to oppose the bill.

Similar bills are not new.  A study by Wayne State law professor Christopher Lund identifies 16 states that added such laws between 1993 and 2009:

Interestingly, it appears Arizona has a law very similar to the one Gov. Brewer vetoed already on the books. Lund's article finds very few cases have arisen involving these laws.  Most also do not appear to have successfully exempted the defendant from legal consequences.

The recent rise of conservatives filing bills around religious freedoms comes largely as a backlash to the rapid expansion of same-sex marriage legalization.  Here is a brief primer on the issue:

First, dear readers, you must understand that existing civil rights on the national Federal level cover very specific classes of people (race, religion, ethnicity, disability, etc.)  Age is covered but only for people 40 and above.  In turn, not all classes of people are covered equally in the areas of employment, housing, and public accommodations.  For instance, sex discrimination is illegal in employment and housing.  Sex discrimination is also illegal in terms of some public accommodations (hotels, etc.) but generally not restaurants and many other venues.  So, you can offer special Ladies Night deals not offered equally to men, have gay male leather bars that exclude women, women-only music festivals, and women-only gyms.  Similarly, discrimination because of one's familial status is illegal in housing but not employment or public accommodations.

And when it comes to sexual orientation, there simply is no existing Federal law banning discrimination based on a person's homosexual, bisexual, or heterosexual orientation.  For years supporters have been trying to pass the Employment Non-Discrimination Act (ENDA) to ban such discrimination nationally.

21 states and DC, however, have state laws banning sexual orientation discrimination.  11 other states ban sexual orientation discrimination involving public (state) employees.  Additionally, scores of cities, universities, and businesses have ordinances and policies banning sexual orientation bias.

So, now we have a number of states legalizing same-sex marriages.  In fact, all of the states where same-sex marriages are currently performed have civil rights statutes banning sexual orientation.  In New Mexico, a gay couple planned their wedding and contacted a public photography business to photograph their ceremony.  The business' owner, a devout conservative Christian, refused claiming performing this service for this couple would violate his religious beliefs.  The couple filed a civil rights complaint against the business and ultimately won.  Conservatives howled this application of existing civil rights laws against this business violated the owner's personal religion.

In Oregon, there was a similar case involving a lesbian couple planning a ceremony to bless their union. Again, a public business -in this case a bakery- refused to serve them.  The couple again filed a complaint against Sweet Cakes by Melissa.  Writers for the Portland Willamette Weekly wrote an interesting article exploring just how devout the Christian owners of this business were.  They write that the bakery was willing to make cakes celebrating a divorce party, a pagan solstice party, an out-of-wedlock baby shower, a non-kosher BBQ, and a party celebrating a researcher who had just received a grant to clone human cells.

This selective application of 'sincerely held religious beliefs' is also what led to a Lexington, KY, t-shirt printing company's loss over a complaint filed when it refused to print an innocuous Pride festival t-shirt but showed a history of printing a variety of sexually suggestive and crude t-shirts for other customers.

Yet, -and this point is key- the Oregon and New Mexico couples and the Kentucky gay organization would have been out-of-luck legally if they had lived in other jurisdictions.  Kentucky for instance has no civil rights law banning sexual orientation.  GLSO, the gay organization, and the offending printer both happened to be in Lexington, a city that passed a non-discrimination ordinance covering sexual orientation in 1999.

So, a gay couple that marries in Iowa and then goes home to rural Kansas and is refused a wedding cake by a local bakery has no civil rights protection and no way to legally fight the refusal.  So on the legal front, it is not marriage that is the driving force behind the civil rights cases but the enforcement of existing civil rights laws.  On the political front, however, religious freedom bills appear to be more about making a political statement against gay people and same-sex marriage.

ENDA Passes the US Senate

With ENDA passing the US Senate, I thought this post could use a re-posting:

Majority:  Most registered American voters support a Federal law banning employment discrimination because of a person's sexual orientation.

While recent media attention focuses on same-sex civil marriage, it remains legal to discriminate against a person because of her or his sexual orientation in most states.  Ironically, earlier and a recent poll find most Americans believe such discrimination is already illegal.  Thus, some Americans believe attempts at a gay rights law banning employment discrimination is instead some attempt at 'special rights'.  Such laws fall within the system of civil rights laws already existing in the US and thus cover heterosexuals as well as homosexuals and bisexual orientations.

A September 2013 national poll by Republican pollster Alex Lundry with TargetPoint Consulting finds that 80% of Americans incorrectly believe it is already illegal to fire, refuse to hire, demote, or otherwise discriminate in employment against a person because of her/his sexual orientation. A law to ban such discrimination currently is gaining steam before Congress.  ENDA, the Employment Non-Discrimination Act, would ban discrimination based on an individual's sexual orientation and gender identity in the area of private and public employment.  The bill exempts religious organizations and private clubs as well as only applies to businesses with 15 or more employees.(1)

Supporters have tried to get ENDA passed since 1994.  A similar bill had been introduced to Congress for decades starting in 1974.(1)

Lundry's polling finds 68% of his sample of registered voters support a Federal law protecting against sexual orientation discrimination in employment.  3 out of 5 registered voters believe sexual orientation discrimination is a problem in the US -with 31% believing such bias is a major problem.

Lundry also calculated that a majority of voters in all 50 states support such legislation.

Gay Marriage: The Next States to Walk Down the Aisle?

Polling from last summer finds majorities or pluralities of Americans in these states support legalization of civil marriage for same-sex couples:

Statistical guru -and openly gay man- Nate Silver calculates that by 2016 a majority of American voters will support legalization of same-sex marriage nationally.  By 2020 he predicts a majority of voters in all but six Deep South states (LA, AR, MS, AL, GA, and SC) will support legalization.  Read it here.

Gay Marriage: Opponents

While the national majority of Americans now say they support legalizing same-sex civil marriage, majorities in some states oppose such legalization.

From Outlaws to In-Laws: Sodomy Laws to Marriage

Majority:  In a reversal from before 2001, most Americans do not support criminalizing private, consensual sexual relations between members of the same sex...and probably also do not support criminalizing private, consensual oral and anal sex for the heterosexual majority either.

With the quick succession of states legalizing civil marriage between same-sex couples, it is easy to forget that private, consensual sexual relations between same-sex couples -as well as certain sex acts between opposite-sex couples in some states- were criminalized up until a decade ago.  Under various names such as crimes against nature laws or sodomy laws, such laws made it a crime for a gay or lesbian couple to be intimate in the privacy of their own home.

The American Bar Association's model penal code revisions in the 1960s began to urge state legislatures to remove victimless moral crimes including consensual sodomy.  Keep in mind that such laws often banned oral and anal sex for heterosexuals too -and breaking these laws could lead to a felony conviction, listing on a sex offender registry, years in prison, and fines.  While the laws were rarely used against heterosexual couples, they were frequently cited in custody cases involving a lesbian mother and the heterosexual father of her children from a former relationship.  They were also cited as rationale for denying domestic partner benefits and allowing gay student organizations under the premise that such actions would support criminalized relationships.

My home state of Kentucky provides an interesting case study via Wikipedia:

At that time, Kentucky law criminalized consensual sexual relations between people of the same sex, even if conducted in private. Specifically, the law criminalized genital-oral (oral sex), genital-anal (anal sex), and anal-oral (rimming) sex -but only between partners of the same sex. Such sexual activities between mixed-sex (male-female) couples were legal. Such conduct was a misdemeanor punishable by up to 12 months in jail and a fine of up to $500. Solicitation of same was also a misdemeanor, punishable by up to 90 days in jail and a fine of up to $250. Historically, Kentucky's sodomy statutes had changed over time. The 1860 sodomy statute criminalized anal penetration by a penis and applied to both male-female couples and male-male couples. Because the law focused exclusively on penile-anal penetration, consensual sex between women was technically legal in Kentucky until 1974. In fact, in 1909 the Kentucky Supreme Court issued a ruling in Commonwealth v. Poindexter involving two African-American men arrested for consensual oral sex. In this decision the court upheld that the then current sodomy law did not criminalize oral sex but only anal sex.

In 1974 Kentucky revised its statutes as part of a penal code reform advocated by the American Law Institute. While the American Law Institute urged states to decriminalize consensual sodomy and other victimless crimes, the Kentucky legislature chose to decriminalize anal sex involving male-female couples but to broaden the new statute to criminalize anal-genital, oral-genital, and oral-anal sexual contact involving same-sex couples (both male-male and female-female couples). Thus, the 1974 revised statute decriminalized consensual anal sex for mixed-sex couples but expanded criminalization of sexual acts to include both male and female same-sex couples.

Morrison, Matthew (2001). "Currents in the Stream: The Evolving Legal Status of Gay and Lesbian Persons in Kentucky". Kentucky Law Journal 89 (4).

Jones, Jeffery (2001). Hidden Histories, Proud Communities: Multiple Narratives in the Queer Geographies of Lexington, Kentucky, 1930-1999. Lexington, KY: University of Kentucky (dissertation).

Illinois became the first state to decriminalize sodomy in 1968.  Various states dropped their sodomy laws until the movement stalled with the advent of AIDS in the early 1980s.  It was not until 1992 when Kentucky's Supreme Court overturned the state's same-sex only sodomy law on state constitutional grounds that decriminalization proceeded.  Using similar arguments made in the Kentucky case, a lawsuit involving a gay couple arrested in one man's bedroom by Texas police serving him for traffic violations came before the US Supreme Court.  In a close 5-4 decision in Lawrence v. Texas, the US Supreme Court overturned the last remaining sodomy laws in 2003.

Interestingly, conservative Republican Virginia Attorney General, Ken Cuccinelli is running for Governor of Virginia.  He has argued Virginia's consensual sodomy law is still in force and applies to all Virginians:

Virginia Is for Retro Anti-Sodomy Law Campaigns

But regardless of the US Supreme Court's ruling, does our Average American want anal -maybe even oral- sex between consenting adults criminalized?

Well, considering that one study looking at sexually transmitted infections finds that one-third of a sample of over 12,000 heterosexuals report having anal sex, and three-quarters say they have had oral sex, enforcement of such criminalization would be challenging to say the least.

But what about only criminalizing homosexual sodomy?  It turns out that Gallup polls from 1977 to 2011 show a steady increase in Americans stating they believe gay or lesbian relations -sexual relations and relationships- should be legal.  In 1977 Gallup found support at 43%.  By 2011 this had risen to almost two-thirds of Americans (64%).  Most Americans (56%) also now say they find homosexuality to be morally acceptable -an increase from 40% in 1977.

So, no, according to polling most Americans would not be in favor of criminalizing sexual relations between members of the same sex.

ENDA: The Employment Non-Discrimination Act

Majority:  Most registered American voters support a Federal law banning employment discrimination because of a person's sexual orientation.

While recent media attention focuses on same-sex civil marriage, it remains legal to discriminate against a person because of her or his sexual orientation in most states.  Ironically, earlier and a recent poll find most Americans believe such discrimination is already illegal.  Thus, some Americans believe attempts at a gay rights law banning employment discrimination is instead some attempt at 'special rights'.  Such laws fall within the system of civil rights laws already existing in the US and thus cover heterosexuals as well as homosexuals and bisexual orientations.

A September 2013 national poll by Republican pollster Alex Lundry with TargetPoint Consulting finds that 80% of Americans incorrectly believe it is already illegal to fire, refuse to hire, demote, or otherwise discriminate in employment against a person because of her/his sexual orientation. A law to ban such discrimination currently is gaining steam before Congress.  ENDA, the Employment Non-Discrimination Act, would ban discrimination based on an individual's sexual orientation and gender identity in the area of private and public employment.  The bill exempts religious organizations and private clubs as well as only applies to businesses with 15 or more employees.(1)

Supporters have tried to get ENDA passed since 1994.  A similar bill had been introduced to Congress for decades starting in 1974.(1)

Lundry's polling finds 68% of his sample of registered voters support a Federal law protecting against sexual orientation discrimination in employment.  3 out of 5 registered voters believe sexual orientation discrimination is a problem in the US -with 31% believing such bias is a major problem.

Lundry also calculated that a majority of voters in all 50 states support such legislation.

Gay Marriage

Majority:  Most Americans now support legalizing civil marriage for same-sex couples.

Starting around 2011-2012 various national US polls began finding the scales had tipped on legalizing civil marriage for same-sex couples.  Polling now consistently finds a slim majority of Americans support same-sex marriage.  With New Jersey becoming the 14th state -plus DC- to allow same-sex marriages, 30% of Americans now live in a state where both same-sex and opposite-sex couples may legally marry.  Another 13% live in states allowing opposite-sex couples to marry and allowing same-sex couples to enter into civil unions.  As of last week, Oregon also recognizes same-sex marriages performed out-of-state.  Eight counties in New Mexico are also issuing marriage licenses.  Six tribal jurisdictions in the US also offer legal same-sex marriages.  And there are pending lawsuits seeking to legalize marriage for same-sex couples in more than half a dozen states.