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

My Family’s Story

My husband Gary and I were able to share our family’s story with Robin and Jaimie of the hit podcast, If These Ovaries Could Talk.

 We spoke about being a known donor, having our son with a known egg donor and gestational carrier, as well as our commitment to inviting others to get to know us through honest question and answer.  Anthony Brown

This podcast is really important.  Not only are Jaimie and Robin helping others to have their families, they are demysifying the process and helping others to know that our families are just like theirs.

Go to www.ovariestalk.com for information and you can download their podcast on all podcast platforms.

Click here to listen to our episode, “They Met at the Disco.”

Gay Couple Stabbed While Holding Hands Outside Denver Nightclub

“We were just holding hands minding our business,” one of the men said.

Two gay men were holding hands while walking home from a nightclub early Sunday morning in Denver when a man attacked the couple, stabbing them multiple times. 

“We were just walking and I guess he didn’t like what he saw … that we were holding hands,” Chris Huizar, 19, told local outlet 9News on Sunday. 

Huizar and his boyfriend, Gabriel Roman, 23, were walking home from a dance club called The Church just after midnight when the two said they heard a man yell “fuckin’ faggots” before he attacked the couple with a folding knife. Huizar was stabbed in the neck and Roman was stabbed in the hand and back before they were able to escape.

The couple called the police and were taken to the hospital immediately where, according to Gay Star News, Roman received 30 internal stitches and 52 stitches on his hand. The wounds were not life-threatening, Denver police spokesman Sgt. John White told The Denver Post.

By Alanna Vagianos Huffingtonpost.com, May 29, 2018

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Children of same-sex couples officially recognized in a first for Italy

Three gay couples in the northern city of Turin have been able to legally register their children to both parents, in a first for Italy.

“Today an important page of history has been written,” said the mother of one of the children, Turin councillor Chiara Foglietta.2nd parent adoption, second parent adoption, second parent adoptions, second parent adoption new york

Foglietta, who gave birth after undergoing artificial insemination in Denmark, said staff at the public records office had told her “no form exists” to recognize the child’s birth through the procedure, which is subject to strict rules in Italy.

Instead, the staff reportedly told Foglietta she should declare that she had had the baby with a man. On Monday, the councillor said she “cried with joy” after signing the documents in which both she and her partner, Micaela Ghisleni, were recognized as parents of their son.

The couple’s son Niccolò was one of four children who were officially registered to same-sex parents on Monday, with city mayor Chiara Appendino signing the birth certificates. The other families included two men who are fathers to twin boys, and another lesbian couple whose son was officially recognized.

Appendino, who had earlier vowed to “force the issue” after the registry’s initial refusal to acknowledge the LGBT families, said the recognition was “a strong gesture in a legal vacuum”.

Although the Five Star Movement mayor said that it was not yet possible to make a change at a legislative level, she said she hoped the recognition of these four children was a first step towards such a change.

On Twitter, Appendino wrote: “Today is one of the days when every drop of energy put into politics feels worth it.”

by Catherine Edwards, the local.it, April 23, 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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Ga. governor signs LGBT ‘neutral’ adoption bill

Republican Gov. Nathan Deal of Georgia on Monday signed into law a comprehensive bill updating the state’s adoption law after he joined a bipartisan coalition of lawmakers in killing proposed changes that would have allowed adoptions by same-sex couples to be denied on religious grounds.

The Georgia General Assembly’s approval of the sweeping adoption reform bill, known as HB 159, which includes no restrictions against same-sex couple adoptions, appears to have been overshadowed by the passage by the Georgia Senate on Feb. 23 of a separate bill, the Keep Faith in Adoption and Foster Care Act, or SB 375.

That measure calls for allowing private adoption agencies receiving state funds to deny adoptions for certain couples or individual parents based on “sincerely held religious beliefs.” Legal experts say the bill’s language would allow faith-based adoption agencies to decline to approve an adoption for those with whom they disapprove, including single parents, unmarried couples and LGBT couples.

The bill would prohibit the state from defunding or penalizing a private adoption agency for making adoption decisions based on religious grounds.

Upon approval last month by the State Senate, SB 375 was sent to the House Judiciary Committee. A spokesperson for the committee’s chair, Rep. Wendell Willard (R-Sandy Springs), told the Washington Blade on Tuesday that Willard had yet to schedule a hearing for the bill due to the committee’s consideration of numerous other bills. The spokesperson said she didn’t know when or if Willard planned to call a hearing.

Under the Georgia General Assembly’s 2818 legislative session, any bill that isn’t fully approved by the state House and Senate by March 29 will be considered dead for the session.

Jen Ryan, a spokesperson for Deal, told the Blade in an email that the “governor’s office doesn’t comment on pending legislation.”

However, at least one source familiar with Deal and the Republican-controlled legislature said Deal and a number of prominent GOP lawmakers have made it known they oppose SB 375, among other things, because they believe its perception as a discriminatory law would hurt efforts to bring and retain large businesses in the state.

Deal made his views known on that score in 2016 when he vetoed a “religious liberties” bill that critics said would have given employers and landlords authority to discriminate against LGBT people on religious grounds.

Republican senators want to protect people with anti-gay beliefs with the First Amendment Defense Act

President Trump has promised to sign the First Amendment Defense Act into law

Twenty-two Republican U.S. senators have reintroduced the First Amendment Defense Act, a bill that would potentially allow people to discriminate against LGBTQ individuals or same-sex couples under the guise of “religious freedom,” reports The Hill.Discrimination

The bill would insulate any individual who holds “a sincerely held religious belief” opposing homosexuality, transgenderism, or same-sex marriage, or any business operated by an individual with such beliefs, from being penalized or punished by the government should they be found to have discriminated against such people.

As a result, it would prohibit the government from levying fines against people who discriminate, denying them government contracts, or taking away special tax breaks, so long as the person claims that their refusal to provide goods or services was motivated by their religious beliefs.

Critics have warned that the bill is so broadly written that it would not just condone discrimination against LGBTQ individuals and same-sex couples, but single mothers, divorcees, those who engage in premarital sex, or anyone else whose lifestyle does not comport with a person’s religious beliefs, no matter how radical or out-of-the-mainstream those beliefs may be.

The bill was sponsored and introduced by Sen. Mike Lee (R-Utah), and co-sponsored by several prominent conservative senators, including Marco Rubio (Fla.), Ted Cruz (Texas), Orrin Hatch (Utah), Ron Johnson (Wis.), and Rand Paul (Ky.).

A similar iteration of the bill was introduced in both the House and Senate in 2015, but only received a hearing in the House. The measure failed to gain traction, and was eventually set aside by leadership amid protests from Democrats, and the realization that then-President Obama would veto the measure if it managed to pass Congress.

Lee had previously promised to reintroduce FADA after Donald Trump was elected president. Lee’s House counterpart, U.S. Rep. Raul Labrador (R-Idaho), now running to be the next governor of Idaho, said last he would introduce similar legislation in the House during the current session, but never did, according to a search of filed bills in Congress.

By John Riley, metro weekly.com, March 8, 2018

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Catholic Teacher Fired After Marrying Her Girlfriend

Parents at a Catholic school in Miami said they were astounded that administrators had fired a first-grade teacher just days after she married her girlfriend, and now some of the teacher’s supporters on the faculty are scared that the school will retaliate against them as well.

Catholic school teacher fired after marrying her girlfriend.  The teacher, Jocelyn Morffi, was by all accounts one of the most popular educators at Sts. Peter & Paul Catholic School in Miami, where she taught for nearly seven years.

“I consider her the Mother Teresa of teachers,” Samantha Mills, a parent whose son was in Ms. Morffi’s class last year, said on Monday.catholic teacher fired

But on Feb. 8, Ms. Mills and other parents at the school received an email from the principal saying that the school had made a “difficult and necessary decision,” and that Ms. Morffi would no longer be teaching at the school. The email was shared with The New York Times.

She was fired just days after marrying her girlfriend of about two years.

“The kids are very confused,” said Vanessa Almeida, whose children were tutored by Ms. Morffi. “My son said, ‘Mommy, I heard that Ms. Morffi got fired for getting married,’ and he looked at me and said, ‘What’s so bad about that?’”

On Friday, Ms. Morffi spoke out in a statement on Instagram.

“This weekend I married the love of my life and unfortunately I was terminated from my job as a result,” she wrote in the post. “In their eyes I’m not the right kind of Catholic for my choice in partner.”

Mary Ross Agosta, director of communications for the Archdiocese of Miami, said in an email on Monday that Ms. Morffi was fired because she violated a contract stipulating that teachers must abide by Catholic teachings and traditions.

She declined to say whether Ms. Morffi had been fired for marrying a woman, noting that it was “a personnel issue.”

Four teachers attended the wedding, one of them told The Times on Wednesday. She asked not to be named out of fear for her career.

by Christina Caron, New York Times, February 17, 2018

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NY Gov. Andrew Cuomo Signs LGBT Anti-Discrimination Order

New York Governor Andrew Cuomo has signed an executive order that prohibits state entities from doing business with any company that promotes or tolerates discrimination.

Cuomo announced the order at Saturday’s Human Rights Campaign (HRC) Greater New York Gala, where he also promised New York would lead the nation on ending the AIDS epidemic and announced plans to introduce legislation this session that would put an end to the so-called gay panic defense.Cuomo

The Democrat said that his order was a direct response to President Donald Trump’s policies.

“The Trump administration gave the attorney general a license to discriminate by interpreting ‘religious liberty’ protections in the federal law. What that means is a business can refuse to serve LGBTQ individuals because it violates their religious beliefs. They did that. So, today I’m signing an executive order prohibiting New York state government from doing any business with any entity that discriminates against any New Yorker, period,” Cuomo said at Saturday’s event.

by Carlos Santascoy, ontopmag.com February 6, 2018

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State Dept. sued for denying citizenship to same-sex couples’ children

Two binational same-sex couples on Monday filed federal lawsuits against the State Department after their children were denied U.S. citizenship.

Andrew Dvash-Banks, who was born in Santa Monica, Calif., and his husband, Elad Dvash-Banks, who was born in Israel, were married in Toronto in 2010. The two men decided to live in Canada because the Defense of Marriage Act that President Clinton signed in 1996 prevented Andrew Dvash-Banks from sponsoring Elad Dvash-Banks for immigration purposes.citizenship

A surrogate gave birth to the men’s twin boys — Aiden Dvash-Banks and Ethan Dvash-Banks — in Mississauga, Ontario, on Sept. 16, 2016.

Aiden Dvash-Banks was conceived with Andrew Dvash-Banks’ sperm, while Ethan Dvash-Banks was conceived with Elad Dvash-Banks’ sperm. Canada recognizes both men as their children’s parents.

The 2013 U.S. Supreme Court ruling in the Windsor case that struck down a portion of DOMA prompted the U.S. to legally recognize same-sex marriages performed outside the country. The U.S. Consulate in Toronto nevertheless denied the men’s request for a Consular Report of Birth Abroad — which certifies that a child who was born overseas was an American citizen at the time of their birth — and a U.S. passport for Ethan Dvash-Banks under Section 309 of the Immigration and Naturalization Act that specifically addresses “children born out of wedlock.”

“Focusing improperly on the biological relationship between each child and the parent who conceived him, the State Department then recognized Aiden’s citizenship and denied Ethan’s,” reads the lawsuit that Andrew Dvash-Banks filed in the U.S. District Court for the Central District of California.

The Dvash-Banks family moved to Los Angeles on June 24, 2017.

Andrew Dvash-Banks and Aiden Dvash-Banks are U.S. citizens, while Elad Dvash-Banks is a permanent resident. Ethan Dvash-Banks, who is also a plaintiff in the lawsuit, was able to enter the U.S. on a tourist visa that expired on Dec. 23, 2017.

“All of Andrew and Elad’s professional, personal and familial commitments are in constant jeopardy of being undone if the Department of Homeland Security deports Ethan,” reads the lawsuit.

Andrew Dvash-Banks and Elan Dvash-Banks have applied for a green card for Ethan Dvash-Banks in order “to minimize the risk of deportation proceedings and having to face the choice of staying together as a family or staying in this country.”

Washington Blade, by Michael Lavers, January 22, 2018

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