DOJ Says Title VII Law Doesn’t Protect LGBTQ Employees From Discrimination

From today’s New York Times by Alan Feuer

The Justice Department has filed court papers arguing that a major federal civil rights law does not protect employees from discrimination based on sexual orientation, taking a stand against a decision reached under President Barack Obama.

The department’s move to insert itself into a federal case in New York was an unusual example of top officials in Washington intervening in court in what is an important but essentially private dispute between a worker and his boss over gay rights issues.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department said in a friend-of-the-court brief, citing the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex or national origin.” “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

The department filed its brief on Wednesday, the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, raising concerns among civil rights activists that the Trump administration was trying to undermine lesbian, gay, bisexual and transgender rights won under previous administrations.

The filing came in a discrimination case before the United States Court of Appeals for the Second Circuit involving Donald Zarda, a skydiving instructor. In 2010, Mr. Zarda was fired by his employer, a Long Island company called Altitude Express. Before taking a female client on a tandem dive, Mr. Zarda told the woman he was gay to assuage any awkwardness that might arise from his being tightly strapped to her during the jump. The woman’s husband complained to the company, which subsequently fired Mr. Zarda. Mr. Zarda then sued Altitude Express, claiming it had violated Title VII.

Read the entire article here.

SCOTUS upholds equal protection, rules against laws excluding gays and lesbians from marriage

What a long, strange trip it’s been.

In 2003 I was a graduate student in the philosophy program at UCSD, taking a seminar on jurisprudence from the eminent moral philosopher David Brink. In his seminar we read and discussed a variety of arguments by scholars ranging from Justice Antonin Scalia on “originalism” to Joel Feinberg on free expression vs. “offensive nuisances,” and we also read and discussed seminal Supreme Court cases relating to these issues. I had been interested in law and legal issues for many years by that time, having taken up policy debate as a way of life in high school, not to mention mock trial and Model U.N. in college. Moreover, I was a gay man and conscientious citizen who had already concluded that legal discrimination on the basis of sexual orientation had no place in a constitutional democracy that depends, in its very meaning, on the motto “equal protection under the law.” In other words, I was a “second-class” citizen with an axe to grind and had the analytical skills and arguments to hone its edge to near perfection. Sharpen Sie!

It was in that seminar that a close reading of constitutional principles and significant SCOTUS decisions on due process and equal protection convinced me there was one, and only one, simple line of argument leading from the 14th Amendment to the legal validity of same-sex marriage. I wrote my seminar paper on this topic, revised it later that summer, and sent it out for publication. The paper was titled “Equal Protection and Same-Sex Marriage” and it was published in the Journal of Social Philosophy in 2004. In it, I argued that the proper constitutional argument for supporting a decision on behalf of same-sex marriage and invalidating both federal and state laws defining “marriage” as a union of a man and woman is easily discerned in equal protection doctrine.

Admittedly, there is a lot of semantic confusion about the word “marriage” and its proper referent in this case, as well as a lot of empirically inaccurate, vaguely historical arguments about its definition as such a union (truthfully, before the emergence of the modern democratic state in Western societies only recently, and in much of the world still, “marriage” really refers to men owning and treating women like property). However, there is a precise legal meaning to the word “marriage” in this constitutional debate, and here we are talking exclusively about “civil” marriage, or the state’s legal recognition of a union between two persons that includes all the benefits and burdens that such recognition entails. Insofar as the state recognizes such unions from a legal standpoint they cannot exclude some persons from participating in it but not others. To do so is to violate the letter and the spirit of the equal protection clause of the 14th Amendment, which can be found at the very end Section 1 of that amendment. The sections reads:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Unfortunately, the inane and insanely inaccurate debate sponsored by American-style conservatism about re-defining the word “marriage” has simply muddied the water to what is otherwise a crystal-clear expression of the obvious:  The decision that the Supreme Court reached in Obergefell v. Hodges on June 27, 2015 doesn’t redefine “marriage” at all, doesn’t substitute the judgment of “five lawyers” on the bench for the “will of the people,” and doesn’t even invent a new “gay” right on anything. Rather, the landmark ruling does nothing more and nothing less than enforce the equal protection of the clause of the 14th Amendment concerning the “civil” recognition of marriage laws by states. In short, there are already are “marriage” laws on the books, and since the 14th Amendment states to the letter, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it follows without remainder that the majority decision of this civil rights case is exactly right.

Now for those who unfamiliar with its history, the 14th Amendment to the United States Constitution was adopted on July 9, 1868, as one of several Reconstruction Amendments drafted in response to issues related to former slaves following the American Civil War including the intransigence of southern states to accept the rule of law. In short, the amendment was created as a means of strengthening our constitutional system against detractors and scofflaws. We fought them in the Civil War, we fought them against Jim Crow, we fought them to desegregate. Therefore, it is important to recall that the basis of this landmark decision overturning anti-gay marriage laws, that civil rights are for all not just for some, is rooted in this country’s long and painful history to overcome, confront, overcome again and confront yet again.

By Kory P. Schaff, Editor

The Expanding World of Poverty Capitalism

From NYT “Opinion” August 26, 2014 by Thomas Edsall:

In Orange County, Calif., the probation department’s “supervised electronic confinement program,” which monitors the movements of low-risk offenders, has been outsourced to a private company, Sentinel Offender Services. The company, by its own account, oversees case management, including breath alcohol and drug-testing services, “all at no cost to county taxpayers.”

Sentinel makes its money by getting the offenders on probation to pay for the company’s services. Charges can range from $35 to $100 a month.

The company boasts of having contracts with more than 200 government agencies, and it takes pride in the “development of offender funded programs where any of our services can be provided at no cost to the agency.”

Sentinel is a part of the expanding universe of poverty capitalism. In this unique sector of the economy, costs of essential government services are shifted to the poor.

In terms of food, housing and other essentials, the cost of being poor has always been exorbitant. Landlords, grocery stores and other commercial enterprises have all found ways to profit from those at the bottom of the ladder.

The recent drive toward privatization of government functions has turned traditional public services into profit-making enterprises as well.

In addition to probation, municipal court systems are also turning collections over to a national network of companies like Sentinel that profit from service charges imposed on the men and women who are under court order to pay fees and fines, including traffic tickets (with the fees being sums tacked on by the court to fund administrative services).

When they cannot pay these assessed fees and fines – plus collection charges imposed by the private companies — offenders can be sent to jail. There are many documented cases in which courts have imprisoned those who failed to keep up with their combined fines, fees and service charges.

“These companies are bill collectors, but they are given the authority to say to someone that if he doesn’t pay, he is going to jail,” John B. Long, a lawyer in Augusta, Ga. active in defending the poor, told Ethan Bronner of The Times.

February 2014 report by Human Rights Watch on private offender services found that “more than 1,000 courts in several US states delegate tremendous coercive power to companies that are often subject to little meaningful oversight or regulation. In many cases, the only reason people are put on probation is because they need time to pay off fines and court costs linked to minor crimes. In some of these cases, probation companies act more like abusive debt collectors than probation officers, charging the debtors for their services.”

Human Rights Watch also found that in Georgia in 2012, in “a state of less than 10 million people, 648 courts assigned more than 250,000 cases to private probation companies.” The report notes that “there is virtually no transparency about the revenues of private probation companies” since “practically all of the industry’s firms are privately held and not subject to the disclosure requirements that bind publicly traded companies. No state requires probation companies to report their revenues, or by logical extension the amount of money they collect for themselves from probationers.”

Human Rights Watch goes on to provide an account given by a private probation officer in Georgia: “I always try and negotiate with the families. Once they know you are serious they come up with some money. That’s how you have to be. They have to see that this person is not getting out unless they pay something. I’m just looking for some good faith money, really. I got one guy I let out of jail today and I got three or four more sitting there right now.”

Collection companies and the services they offer appeal to politicians and public officials for a number of reasons: they cut government costs, reducing the need to raise taxes; they shift the burden onto offenders, who have little political influence, in part because many of them have lost the right to vote; and it pleases taxpayers who believe that the enforcement of punishment — however obtained — is a crucial dimension to the administration of justice.

As N.P.R. reported in May, services that “were once free, including those that are constitutionally required,” are now frequently billed to offenders: the cost of a public defender, room and board when jailed, probation and parole supervision, electronic monitoring devices, arrest warrants, drug and alcohol testing, and D.N.A. sampling. This can go to extraordinary lengths: in Washington state, N.P.R. found, offenders even “get charged a fee for a jury trial — with a 12-person jury costing $250, twice the fee for a six-person jury.”

This new system of offender-funded law enforcement creates a vicious circle: The poorer the defendants are, the longer it will take them to pay off the fines, fees and charges; the more debt they accumulate, the longer they will remain on probation or in jail; and the more likely they are to be unemployable and to become recidivists.

Read the entire article here.

Breaking: Attorney General of PA won’t defend marriage prohibition

From the NYT’s News Desk:

Pennsylvania’s attorney general, Kathleen Kane, said on Thursday that she would not defend the state against a lawsuit to overturn a ban on same-sex marriage.

The lawsuit, filed by the American Civil Liberties Union with 23 plaintiffs, including 10 gay and lesbian couples, two teenage children of one couple and a widow who lost her partner of 29 years, cites a ruling last month by the Supreme Court striking down the federal Defense of Marriage Act.

It was the first of a wave of lawsuits that activists are planning to file to expand the number of states allowing same-sex marriage, including in Virginia and North Carolina.

Attorneys general in Illinois and California have previously declined to defend their states in similar cases. In Pennsylvania, the general counsel’s office of Gov. Tom Corbett, a Republican, was seen as likely to pick up the defense.

Supreme Court strikes down DOMA, rules against Prop 8 defenders

In a landmark but mixed decision the US Supreme Court struck down a key provision of the Defense of Marriage Act that prohibited federal recognition of gay and lesbian couples. In a 5-4 decision written by Justice Anthony Kennedy the majority decision announced in plain terms that the law violated the Equal Protection Clause and was therefore unconstitutional. Kennedy is the lone moderate of the court and a maverick of civil rights jurisprudence. He has now written three of the Court’s most important decisions on civil rights for gays and lesbians, including Romer v. Evans, which struck down Colorado’s Amendment 2 in 1996, and Lawrence v. Texas, which invalidated all state laws criminalizing sodomy in 2003.

The court also made a procedural ruling in the California case, effectively ending the efforts of Prop 8 proponents to overturn the Federal District Court ruling that struck down Prop 8 because it violated the Equal Protection Clause. In his majority opinion Chief Justice Roberts denied that private citizens had standing to adjudicate the appeals of state laws, arguing the Court had never done that before and would not do it now. Since Prop 8 proponents are not state agents, they cannot appeal the ruling of federal district judge Vaughn Walker, who found it unconstitutional after a long and highly publicized trial. However, Roberts and the Court stopped short of making a substantive ruling on whether state laws and marriage amendments passed by states are constitutional, signaling that it would let states decide for the time being.

The combined ruling of the two cases is seen as a victory by the LGBT community, particularly in California where the state assembly passed legislation allowing gay and lesbian couples to marry only to have the referendum Prop 8 overturn that legislation by small margins. This left the state in a strange place where many couples got married when it was legal, only to have other couples denied the same rights to marry several months later. Today, Gov. Jerry Brown ordered state agencies to prepare for issuing civil marriage licenses to all Californians regardless of their sexual orientation and gender, and he admonished the 9th Circuit Court of Appeals to lift its injunction while Prop 8 was being appealed.

SCOTUS upholds ACA, including individual mandate for the uninsured

In a surprising ruling the Supreme Court today announced that the Americans With Care Act (ACA) is, in fact, constitutional according to the broad tax authority granted Congress by the Constitution.

Opponents of ACA were also dealt a stunning defeat in their argument that so-called “Obamacare” is unconstitutional because it permits the federal government to overreach its legitimate constitutional authority to regulate interstate business according to the Commerce Clause. The majority ruled that the ACA’s individual mandate is not an interstate commerce issue. Chief Justice John Roberts, writing for the majority in a stunning reversal of the swing vote normally reserved for Justice Anthony Kennedy, claimed the law allowed a choice to uninsured but penalized them with a tax if they chose not to get health insurance. That was the Obama administration’s back up argument, and the Supreme Court agreed.

The fact that Roberts sided with the majority and wrote the opinion underscores just how important this ruling is for non-partisan legitimacy of the new health care law. Although critics have scorned the law as “socialism” and derided it based on false assumptions and ignorance about the law’s many benefits, the ruling today represents a major victory for progress in developing a health care system that is both fair and just.

Some benefits of the Affordable Care Act:

  • Children will be able to stay on their parents health plans until age 26, an important benefit in an economy with high unemployment and shrinking benefits.
  • Insurers will no longer be able to discriminate against persons with prior medical conditions.
  • States must set up insurance exchanges so that market competition among firms will deliver low cost insurance to the uninsured.
  • Individuals who can afford insurance but lack it will be penalized by a “free-rider” tax, ensuring that their uninsured medical costs are not passed along to those persons with insurance in the form of higher premiums, more costly health care delivery, and higher taxes for public emergency rooms.

Stockton, CA files for bankruptcy

The city of Stockton will file for Chapter 9 bankruptcy protection after it failed to find acceptable terms for restructuring its ballooning debt. In a 6-1 vote the city council voted to adopt a budget that is tied to a bankruptcy plan.

The annual budget beginning July 1 calls for defaulting on $10.2 million in debt payments, as well as cutting $11.2 million in employee pay and benefits under union contracts. Those contracts could be voided by the bankruptcy court, a move likely to aggravate the deepening conflict between the public sector and public employee unions.

The city of Stockton with 292,000 residents becomes the largest U.S. city to go bankrupt, but the ongoing recession, along with right-wing instigated austerity measures, raises doubts about the solvency of the public sector at all levels as cities, counties, and states continue to struggle with declining tax revenues and increasingly expensive employee benefits. The aggravation of this conflict is quickly becoming the single largest struggle for worker rights since the 1967 Civil Rights Act.

OWS attempts to shut down Stock Exchange, hundreds arrested

Hundreds of protesters marched on Wall Street early this morning to prevent traders, financiers, and technocrats from reaching their jobs at the Stock Exchange. So far, 100 people have been arrested as the Occupy Wall Street movement vows to keep up its visible presence in New York, highlighting the greed and injustice of the American financial and political system.

84-year-old Dorli Rainey was brutally pepper sprayed by Seattle police, and has become a symbol of the brutal tactics used by law enforcement to suppress democratic dissent.

Protesters clogged the streets around Wall Street, blocking traffic and halting people from reaching the Exchange. Police in riot gear moved in quickly, telling the marching crowds to disperse or face arrest. When dozens of people began sitting down in the intersections, they were quickly arrested. Similar protests and marches are scheduled to continue throughout cities across the nation.

The tactics of law enforcement have come under increasing scrutiny as video footage is leaked to the public and press, showing police pepper spraying and beating otherwise peaceful protesters. In Seattle, the police are being heavily criticized for unjustifiably using pepper spray and truncheons on its own citizens including 84-year-old Dorli Rainey, who has come to symbolize the protest movements nationwide.

As law enforcement moves to evict occupiers in cities across the country, more attention should focus on police tactics, which all too often rely on the brutalization of citizens and the violation of their civil liberties. The police are supposed to “serve and protect,” but their role in suppressing these democratic protests raises the question whether they have become an instrument for the wealthy and powerful to preserve the status quo. Mayors, police commissioners, and officers who are implicated in these brutal tactics should be held accountable for their actions.

NYPD clears Occupy Wall Street encampment, hundreds arrested

The truth hurts us all.

Acting on behalf of the wealthy and powerful interests of Wall Street, New York City Mayor Michael Bloomberg defended his decision to clear out Zuccotti Park, where protesters have staged a camp out that has captured the attention of the nation in order to highlight the injustices and inequities of American-style capitalism.

Mayor Bloomberg claimed that conditions in the park had become intolerable, and that “public health and safety” determined his decision. However, he also announced that the park would reopen tomorrow morning, raising doubts that the conditions of the encampment in the public park were to blame. More likely, Bloomberg’s close ties with Wall Street pressured the billionaire to use his official position to deny the Occupy Wall Street movement its constitutional right to peaceably assemble.

This is not the first time Bloomberg has used the coercive powers of the state, as well as the notorious tactics of the NYPD, to deny democratic protesters their constitutional rights on the streets of the Big Apple. In 2004 his administration and the NYPD came under fire for mishandling the Republican National Convention protests around Madison Square Garden. Thousands of people were arrested in broad and unjustified sweeps of the city streets under the guise that “law and order” must be imposed in order to provide security against the threat of terrorism.

Many of those arrested were either innocent bystanders watching the protests from sidewalks, or people out shopping, or New Yorker’s walking home from work. I was personally jailed 46 hours, first at Pier 57 where a bus terminal was turned into a holding pen, and then at the city’s notorious central jail called “the Tombs.” The New York Civil Liberties Union and National Lawyer’s Guild later launched a class action suit against the city, which has been bogged down in a legal quagmire. Hopefully, the Occupy Wall Street movement will receive much needed legal aid from the armies of unemployed lawyers who have lost their jobs because of the greedy fucking pricks running Wall Street, our country, and the global economy into the ground.

Occupy Wall Street is a small movement fronting a gigantic cause for the rest of us. Mayor Bloomberg and has now established a precedent that other cities are likely to follow. In the name of “public health and safety,” the constitutional rights of Americans to protest government incompetence and inaction concerning the causes and consequences of the recession will be ignored and undermined. In the name of cleaning up some shit on the sidewalks, they will be asked to tolerate more shit flowing downhill as their incomes shrink and profits flow uphill.

The use of state violence to deny this constitutional right is a gross injustice that Americans are likely to tolerate, leaving them vulnerable, yet again, to future collusions between the state and wealthy individuals in which they bear the costs, socially, economically, and politically.

What is to be done? #occupycongress