The Masterpiece Cake Shop Decision – A Narrowly Decided Cautionary Tale

The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.   

In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.

 

gay rightsDon’t get me wrong, I have great respect for most religious belief.  My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues.  We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.

 

However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.

 

I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.

 

masterpiece cake shop decisionJustice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires.  In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent,  “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.”  But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.  

 

Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.”  Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion.  Thus the message that religion is more important than discrimination may be misinterpreted.

 

I have been searching for a meaning behind this seemingly incorrect finding.  Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior.  This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:

“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.

The Court was mindful of how far adrift we could go if every individual could apply his or her religious beliefs to every commercial transaction.  The Court contrasted permission for a clergy person to refuse to marry a couple as an exercise of religious belief, on the one hand, with the unacceptable “community-wide stigma” that would befall gay people if there was a general constitutional right to refuse to provide goods and services.”

I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions.  We are, after all, a portable nation and our families are everywhere. 

 

While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.

 

At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted.  If you have put off doing your estate planning, do it now.  If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court.  If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.

 

While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.  

 

Anthony M. Brown, Time For Families – June 5, 2018

Doctor refuses to treat 6-day-old baby because her parents are lesbians

When Jami and Krista Contreras became parents, their beautiful child was everything to them. But when they took the baby to a local pediatrician, the doctor made sure they knew the lesbian couple was nothing to her.

Even worse? The couple lives in Michigan where it’s perfectly legal to discriminate against LGBTQ people.

The couple met with Dr. Vesna Roi before the birth of their daughter, Bay Windsor. But it wasn’t until the girl was 6 days old and they were waiting at the practice for her first checkup that they learned of the pediatrician’s decision.

“‘Is our doctor coming in?’,” Krista told ABC-7 the couple asked when a different doctor entered the waiting room. “She said ‘No. I’m going to be your doctor; your doctor prayed on it and decided she won’t see you all today’.”

“I was completely dumbfounded,” Krista Contreras told the Detroit Free Press. “We just looked at each other and said, ‘Did we hear that correctly?’”

“We spoke to other people and they would say well they can’t do that… that’s not legal and we looked into it and it was legal,” Jami told the station.

The couple said Roi later wrote them a handwritten letter saying that “after much prayer,” she felt she could not “develop the personal patient-doctor relationships” that she usually builds with patients.

While the incident happened in 2015, the Contreras are telling their story to highlight the need for federal nondiscrimination protections for the LGBTQ community as part of a new national campaign called Beyond I Do.

The campaign highlights states that continue to allow discrimination in employment, housing, credit, public accommodations, and social services.

LGBTQNation.com, by Bill Browning – April 25, 2018

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In a first, 2020 census to count same-sex couples

LGBTQ advocates say the 2020 census change is “a step in the right direction”

The U.S. Census Bureau recently submitted to Congress its planned questions for the 2020 census, and for the first time ever, the decennial survey is expected to allow respondents to specify that they are part of a same-sex couple.

“As our population and communities change, so do their needs,” a Census Bureau spokesperson told NBC News via email. “To better collect more detailed data about types of coupled households, the Census Bureau expanded the single response option of ‘husband or wife’ or ‘unmarried partner’ to the two response options of ‘opposite-sex husband/wife/spouse’ and ‘same-sex husband/wife/spouse,’ and ‘opposite-sex unmarried partner’ and ‘same-sex unmarried partner.’”2020 census

The spokesperson said the landmark 2015 Supreme Court decision Obergefell v. Hodges, which legalized same-sex marriage across the U.S., “furthered the need” to revise the survey to include same-sex couples.

“Step in the right direction”

The expansion of the relationship question is “a step in the right direction,” according to Meghan Maury, policy director at the National LGBTQ Task Force and a member of the Census Bureau’s National Advisory Committee on Racial, Ethnic and Other Populations, but “nowhere near what we’d love to have one day.”

Maury’s organization is among a number of advocacy groups, lawmakers and federal agencies that have been calling on the Census Bureau to include questions about sexual orientation and gender identity on the 2020 census. But while the survey will include same-sex couples, the Census Bureau announced last March it found “no federal data need” to ask individuals about their sexual orientation and gender identity.

While Maury expressed disappointment in the bureau’s decision not to ask individuals about their LGBTQ status, she said the revised relationship question will help “capture more nuanced data with a much lower error rate” regarding gay families.

In prior census surveys, researchers have counted same-sex couples by cross-referencing answers from the relationship question with the respondent’s gender, according to D’Vera Cohn, senior writer at Pew Research Center. However, she said analysts found some people would accidentally mismark the gender box, leading to an over reporting of same-sex couples.

Why the census matters

Census information is used to help allocate more than $400 billion in federal funding each year on everything from infrastructure to job training services, according to the Census Bureau’s website.

“Many people — policy-makers, businesses, the public — use our information to make far-reaching decisions. Our role is to give them timely, accurate, trustworthy information to make those decisions,” the Census Bureau spokesperson explained.”

The relationship data the decennial census collects can be used in a number of ways, the spokesperson added. This includes planning and funding government programs that provide services for families, ensuring available housing in a community meets the needs of residents and exploring whether existing programs are making a difference for families.

Cohn said the change to the relationship question will help to reduce errors in reporting, but she said it will not be able to accurately count the number of lesbian, gay, bisexual and transgender individuals in the U.S.

“This is not the universe of LGBT or even L and G,” she said. “Only people who are couples, and for that matter, couples in the same household, are counted.”

wsls.com, April 25, 2018

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Lesbian mum in Italy told baby won’t be legally registered because she is gay

A woman claims she has been told her newborn baby will not be legally registered because she is gay.

Chiara Foglietta, a councillor in the Italian city of Turin, says authorities won’t recognise her baby, because he was conceived through artificial insemination.

Due to Italian laws, fertility treatments are only available to heterosexual couples.

When she and her partner, Micaela Ghisleni, tried to register their son Niccolo Pietro after his birth on Friday last week, she was told to say she had had sex with a man.

In a Facebook post, Ms Foglietta said she was told by authorities: ‘You must declare you had union (sexual relations) with a man to register your son.

‘There is no form to say you had artificial insemination.’

She said the legal black hole is due to a 2002 ministerial decree that does not foresee that a woman, rather than a heterosexual couple, would seek artificial insemination.

Ms Foglietta used artificial insemination in Denmark to get pregnant, with sperm donated by an anonymous man.

She was told she could lie about the child’s origins but she refused, writing on Facebook: ‘Every child has a right to know his own story.’

She argued that her son came into this world because she and Micaela had wanted a child, and that ‘he is our son’.

Further in her post, Ms Foglietta urged people to do more to tackle the issue.

‘You have an important role and you can do so much more. We can do more together,’ she said.

‘Not for me, but for Niccolo, for all rainbow children, for families who do not have the same strength to face these battles, for the children of single women and those with partners who have chosen medically assisted procreation with external donor and want to tell the truth.’

Metro.co.uk buy , April 22, 2018

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Is America Growing Less Tolerant on L.G.B.T.Q. Rights?

When my sister came out, there was an accordion trio on hand to perform the music of Sly and the Family Stone.

Debutantes in white dresses and boys with matching cummberbunds and bowties drank from the waters of a gurgling champagne fountain. The entire affair, staged in my parents’ old house in Devon, Pa., was an anachronism, to be sure — but as wingdings go, it was tons of fun. It was 1975.

When I came out, in 2002, there wasn’t any party. There were tense meetings with the affirmative action/equal opportunity officer at my place of work; there was a carefully worded statement sent to my colleagues explaining exactly what “transgender” was; there was a series of conversations with my friends, and my mother, and the people whom I loved best, many of whom — in spite of their brave pledges to stand by me — ended those conversations in tears.

That was then.

People who “come out” at debutante parties have been off my radar for a long time now, although apparently they’re still going strong in some quarters. As for L.G.B.T.Q. people, “coming out” has gotten safer in fits and starts, not only in the wake of the Obergefell decision but also in other ways: L.G.B.T.Q. people are now visible in a way that was inconceivable half a generation ago. Most of the people that I thought I had lost after my 2002 unveiling have, miraculously, been returned to me, the intervening years having brought not only forgiveness but also understanding. Since my coming out, our family has thrived, and in the wake of that progress, I have believed that just as the Rev. Dr. Martin Luther King Jr. predicted, the arc of the moral universe does indeed bend toward justice.

Until now.

Last week, GLAAD — the media advocacy group for L.G.B.T.Q. people (of which I was a national co-chairwoman from 2013 to 2017) — released the results of its latest “Accelerating Acceptance” survey at the World Economic Forum in Davos, Switzerland. While the biggest headlines from the forum focused on the fact that the president of the United States managed to get through an event on the world stage without shoving any prime ministers or calling anyone’s country an outhouse, the results of the poll, conducted by Harris, deserve attention as well. They are shocking.

For the first time since the poll began, support for L.G.B.T.Q. people has dropped, in all seven areas that the survey measured. They include “having an L.G.B.T. person at my place of worship” (24 percent of Americans are “very” or “somewhat” uncomfortable), seeing a same-sex couple holding hands (31 percent are uncomfortable) and “learning my child has an L.G.B.T. teacher at school” (37 percent are uncomfortable).

New York Times – by Jennifer Finney Boylan, January 29, 2018

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One Day Your Mind May Fade. At Least You’ll Have a Plan.

When Ann Vandervelde visited her primary care doctor in August, he had something new to show her.

Dr. Barak Gaster, an internist at the University of Washington School of Medicine, had spent three years working with specialists in geriatrics, neurology, palliative care and psychiatry to come up with a five-page document that he calls a dementia-specific advance directive.

In simple language, it maps out the effects of mild, moderate and severe dementia, and asks patients to specify which medical interventions they would want — and not want — at each phase of the illness.living will, health care proxy, medical power of attorney

“Patients stumble into the advanced stage of dementia before anyone identifies it and talks to them about what’s happening,” Dr. Gaster told me. “At what point, if ever, would they not want medical interventions to keep them alive longer? A lot of people have strong opinions about this, but it’s hard to figure out how to let them express them as the disease progresses.”

One of those with strong opinions, it happens, was Ms. Vandervelde, 71, an abstract painter in Seattle. Her father had died of dementia years before, in a nursing home after her mother could no longer care for him at home. Ms. Vandervelde had also spent time with dementia patients as a hospice volunteer.

Further, caring for her mother in her final year, Ms. Vandervelde had seen how family conflicts could flare over medical decisions. “I was not going to leave that choice to my children if I could spare them that,” she said.

So when Dr. Gaster explained his directive, “it just made so much sense,” Ms. Vandervelde said. “While I could make these decisions, why not make them? I filled it out right there.”

Like a growing number of Americans over age 60, she already had a standard advance directive, designating a decision-maker (her husband) to direct her medical care if she became incapacitated.

Not all experts are convinced another directive is needed. But as Dr. Gaster and his co-authors recently argued in the journal JAMA, the usual forms don’t provide much help with dementia.

“The standard advance directives tend to focus on things like a ‘permanent coma’ or a ‘persistent vegetative state,’” Dr. Gaster said. “Most of the time, they apply to a person with less than six months to live.”

Although it’s a terminal disease, dementia often intensifies slowly, over many years. The point at which dementia patients can no longer direct their own care isn’t predictable or obvious.

Moreover, patients’ goals and preferences might well change over time. In the early stage, life may remain enjoyable and rewarding despite memory problems or difficulties with daily tasks.

“They have potentially many years in which they wouldn’t want a directive that says ‘do not resuscitate,’” Dr. Gaster said. But if severe dementia leaves them bedridden, unresponsive and dependent, they might feel differently — yet no longer be able to say so.

New York Times – January 19, 2018 by Paula Span

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Why a patchwork of laws makes surrogacy more challenging in Atlantic Canada

On a wall in Terri Taylor’s home, opposite the window that looks onto the quiet Fredericton cul-de-sac on which generations of her family have grown up, there’s a series of family photos.

Some of them are pictures of her own children, ranging from their teen years to when they were toddlers.

Others feature twin baby girls, the much longed-for children of Iain and Haley, an Australian couple Taylor met through a surrogacy website.

Taylor isn’t related to the twins, Freya and Jenna — nor is she related to their parents.Canada

But she does consider them part of her family.

‘We grew our own family’

Taylor points to a picture of herself, her children, Haley and Iain, and the twins clustered together at the centre of the arrangement. This one is more than just another family photo — it’s also the outcome of her decision to become a surrogate.

“I didn’t just grow two babies, we grew our own family, so that centre one is a pretty good representation of that — my new and expanded family.”

In Canada, hundreds of women every year serve as surrogates for other people, and the number is increasing; when the Canadian Fertility and Andrology Society started collecting statistics in 2001, around 100 women a year were acting as gestational surrogates, meaning they had no genetic relationship to the babies they were carrying.

Now that figure stands at more than 500, but demand still far outstrips supply.

For Taylor, serving as a surrogate was an extension of the same drive to care for others that had characterized her personal and professional life.

“I was never going to be rich, I was never going to donate a wing to a children’s hospital, so this was a way for me to give back.”

By Moira Donovan, CBC News, January 7, 2018

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Let’s set the record straight: There’s nothing wrong with surrogacy

This past December, Arizona Congressman Trent Franks resigned from office after asking two aides to be pregnant through surrogacy for him and his wife, reportedly offering one aide $5 million in return. According to reports, the women were concerned the congressman wanted to impregnate them through sexual intercourse.

The story went viral, causing confusion and stigma about one of the most life-changing medical advancements in history: the ability for females with prohibitive medical conditions, gay male couples, and parents of all ages to have biological children through surrogacy.

When it comes to fertility care, misinformation runs rampant. As fertility doctors, we’d like to set the record straight.

Surrogate mother word cloud concept

Surrogacy does not involve sexual intercourse

There are two main types of surrogacy: traditional and gestational. Traditional surrogacy means the female carrying the pregnancy (the surrogate) is using her own eggs. Different methods such as placing sperm in a uterus to help with fertilization (called intra-uterine insemination, or IUI) can be used to inseminate her with sperm from a male, who is often the intended parent. In this case, the surrogate is the biological mother. Gestational surrogacy, on the other hand, is when an embryo, which has been created using someone else’s egg and sperm, is transferred to a surrogate. The female carrying the pregnancy (the surrogate) is not biologically related to the child she is carrying.

Traditional surrogacy involves the insemination of the surrogate with sperm. Gestational surrogacy involves the implantation of an embryo. Neither requires sexual intercourse.

Surrogacy costs average $150,000, not $5 million

While pricey, surrogacy costs nothing close to the reported $5 million Congressman Franks offered his staffer. The average cost of surrogacy ranges from $100,000 to $200,000, depending on the fertility clinic used, number of IVF rounds, prenatal care, travel expenses, compensation for the surrogate, and additional medical and legal fees. These costs are mostly out-of-pocket and are prohibitively expensive for many people.

Facebook and Apple offer world-class fertility benefits that include surrogacy packages, but the tech firm juggernauts are in the minority. Most companies do not offer comprehensive fertility benefits that provide equal access to all employees. Unfortunately, far too many people still have to take out loans, borrow money from friends and family, raise money on crowdfunding sites, or forgo surrogacy altogether because of the high price point.

Surrogates undergo strict screening

It’s not easy to become a surrogate. Candidates go through a strict medical evaluation process before being approved as a carrier, including psychological screening, genetic screening, STD testing, and evaluations with reproductive specialists and a therapist. The American Society of Reproductive Medicine has recommended guidelines for gestational surrogates. 

Being approved is just the first step. As the surrogate prepares for an embryo transfer, she may take hormones daily. For gestational surrogacy, the intended mother or egg donor takes injectable medications to aid in retrieving eggs that will be fertilized to become embryos. The embryo is then ready to be transferred to a surrogate. And of course, once pregnant, surrogates attend routine prenatal visits and take on the burden of any pregnancy-related complications. 

Surrogacy is widely legal, but laws do vary

The legal landscape around surrogacy is often confusing, with laws varying between states and constantly changing. Though it’s widely regulated and legal throughout the majority of the country, most people are surprised to learn surrogacy is still illegal in some places in the United States Unfortunately, the complicated legal landscape can make access to this important aspect of fertility care more difficult.

TheHill.com, January 3, 2018 BY DR. ASIMA AHMAD AND DR. AMANDA ADELEYE

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Lesbian couples can now have children who are a part of each of them

Over the years I’ve had many lesbians tell me they want children but don’t see themselves being pregnant. It’s not part of their “body image.”

At some level, I understand this feeling. Our gender identity and sexual identity are tied up in our body image and feelings of sexual desire. Being pregnant and carrying a baby inside is an incredibly unique, womanly experience. Men have no idea what this is like, despite how much some may try.

As an experienced obstetrician who’s cared for many pregnant women throughout their pregnancies and deliveries, and as a gynecologist who has cared for and has performed gynecologic surgeries for women for the past thirty years, I’ve seen first-hand the many phases of reproductive health (and experiences with ill health) that only women can experience.IVF

I understand that some women may not identify with parts of that spectrum. For a lesbian couple it is sometimes easy to decide who will carry the pregnancy, while other couples struggle mightily with this uniquely lesbian decision. For single lesbian women, the choice can become more complex: to carry oneself and maybe go into new self-awareness territory, or to utilize the reproductive assistance of a gestational carrier.

We usually reserve gestational surrogates for women with a clearly defined medical need for surrogacy, yet lesbian women can often have very real issues that educate their life choices. Is body image a medical necessity for surrogacy? I believe that it can be if it’s tied into a woman’s sexual identity and sense of self.

We are very fortunate to live in a country where reproductive options are now available for all individuals regardless of gender, sexual identity, or marital status. This is not the case across Europe and other parts of the world. In my practice I see many patients from across the globe – from China, Europe and elsewhere – who travel for reproductive treatment options that are illegal where they live.

All women, and in particular lesbians, who might consider having children someday should talk with their doctor about reproductive options available, or ask for a referral to a fertility specialist to review the treatments that may best apply to their situation. It is imperative that lesbian women seek out a practice that is comfortable providing care to lesbians and same-sex couples.

By Dr. Guy Ringler, LGBTQNation.com – September 12, 2017

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TIAA adds LGBT benefit to help female couples with family planning

Investment advisory firm TIAA has added reciprocal IVF assistance to its family planning benefits package as an LGBT inclusion measure.

The New York City-based firm officially added the benefit July 1 after conversations with its LGBT employee resource group during Pride Month in June.

“The addition of reciprocal IVF [meaning one partner supplies the eggs to be used for IVF, while the other partner is the gestational carrier of the pregnancy] could significantly help female couples achieve their family planning goals, and we want to provide them with the same support other employees already receive,” says Skip Spriggs, senior executive vice president and chief human resources officer at TIAA. “It wasn’t a cost issue, but it was about creating the right environment.”TIAA

Prior to this benefits addition, employees had to go through a pre-certification process with a claims administrator to verify infertility, says TIAA. Now, employees can have IVF services covered without verifying that they tried natural or artificial insemination. Similarly, female couples don’t have to provide infertility to gain access to IVF as a covered benefit, the firm says.

Only 57% of employers offer a type of infertility service coverage, and 25% of the employers cover IVF, according to Mercer’s 2016 “National Survey of Employer-Sponsored Health Plans.”

by Amanda Eisenberg, August 21, 2017 – benefit news.com

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