It’s late on Monday January 7. My mind has been buzzing for several days about what I want to do next. I knew it was a possibility almost 6 months ago that my confirmation would not go through. So I have been thinking about this for a while. Here’s one thing I know: we are a moment in time now when people are finally paying attention to the harms of workplace harassment and what we can do to prevent it. If I can do something to help in that effort, I will. Stay tuned.
First published on my Medium page.
Two days ago, Senator Mike Lee took to the Senate floor to explain why he could not agree to my confirmation to continue to serve on the EEOC. I did not recognize the person Senator Lee was talking about.
Senator Lee used quotes attributed to me to paint a picture of a person bent on suppressing religious liberty in this country. That is not me nor will it ever be. Those quotes were either misconstrued or taken out of context.
Senator Lee asserts that my use of the term “zero sum game” to describe the conflict that can arise between LGBT rights and religious liberty means that I believe LGBT rights must always prevail in such a conflict. Senator Lee has it completely backwards. I used the term “zero sum game” in a law review article in 2006 for the precise purpose of calling attention to the potential conflict that concerns Senator Lee and others. As I have explained, the point of using that term was to force people, particularly defenders of LGBT rights, to acknowledge that a conflict can indeed arise when those who believe homosexuality is sinful are forced to comply with a non-discrimination law protecting LGBT people. It is only if one acknowledges such a conflict in the first place that one can begin to explore what rights should be protected under different circumstances.
Senator Lee also quotes me as saying that I have a hard time coming up with any case in which religious liberty should win over sexual liberty. This is a “quote” that has been attributed to me by a reporter and, as best as I can discern, is taken completely out of context.
In 2006, Maggie Gallagher wrote an article in the Weekly Standard titled Banned in Boston in which she attributed this quote to me: “I’m having a hard time coming up with any case in which religious liberty should win.” She further goes on to quote me as saying: “Sexual liberty should win in most cases. There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner.”
Almost ten years later, Gallagher acknowledged my assertion that she had misquoted me and admitted that she did not have a tape of the interview. She insisted, however, that she had correctly captured my full position.
Gallagher reached out to interview me in 2005 about Catholic Charities in Boston shutting down its adoption services because of the state’s requirement that it not discriminate against gay couples in placing children. Unlike other people she quoted, I refused to comment on that specific situation. Instead, I noted the difficult and complicated issues that arise whenever religious groups are required to act in a manner contrary to their beliefs. That clearly did not provide Gallagher with the quote she wanted. So she moved on to ask me what the rule should be for religious individuals who are employers or business. I explained that when such individuals enter the stream of commerce, we must ordinarily expect them to comply with non-discrimination laws, even if it means hiring or serving gay people. Gallagher then created a quote extending that position to all situations of conflict between religious beliefs and LGBT rights and attributed that quote to me. This is truly ironic, given that most of the interview consisted of my explanation of why religious pluralism might require accommodations for religious organizations in certain circumstances.
Finally, Senator Lee quoted me as saying that “pockets of resistance” against LGBT rights cannot be permitted to flourish. That sounds like I am out stalking the streets at night looking for religious people and groups to stamp out.
This quote comes from a post by Americans for Truth About Homosexuality in 2010. The post quotes from my participation in a Beckett Fund gathering five years earlier. The Beckett Fund is a group that describes itself as defending “religious liberty for all — in principle and practice.” It is a group that litigates religious liberty cases, many of which I agree with. In December 2005, the Beckett Fund pulled together an informal group of people to talk about LGBT rights and religious liberty. While almost all the participants were conservative religious scholars, I was invited as one of the few LGBT scholars who was willing and interested in engaging in such a conversation. The symposium was off the record, as were the papers we submitted to guide our conversation.
Let’s assume that the words attributed to me came from the informal paper I submitted. (I no longer have the paper, so I don’t know if my words were edited.) However, as the full quote indicates, I was talking about how religious employers and business owners may feel burdened by non-discrimination laws that force them to hire or serve gay people, but that such a burden would be justified because the liberty interests of gay people “cannot be adequately advanced if ‘pockets of resistance’ to a societal statement of equality are permitted to flourish.” (emphasis added).
The fact that the phrase “pockets of resistance” is in quotations means I was probably quoting it from somewhere else, since it is not a metaphor I tend to use. But my thinking then and now remains the same. After passage of the Civil Rights Act of 1964, some business owners tried to justify not serving black people based on their religious belief that the races should not mingle. The courts did not accept their argument, concluding that individual resistance to the societal statement of racial equality could not be countenanced, even if the resistance was based on religious beliefs. I feel the same rule should apply to the religious beliefs of employers and business owners who enter the stream of commerce, whether it concerns beliefs about race, national origin, disability, sex, sexual orientation or gender identity. Exceptions for individuals who have chosen to enter the stream of commerce are hard to justify. I feel differently, however, with regard to religious organizations. Allowing such organizations to both “resist” and thrive is often essential to protecting religious pluralism.
The blog post by Americans for Truth About Homosexuality included an edited clip of a presentation I made at an event sponsored by the Family Research Council in 2008. The edited version of the clip, together with ominous partial statements pulled out from my comments and flashed across the screen, show how my efforts to engage in a sincere conversation about religious liberty and LGBT rights are contorted by those who have no interest in having such a conversation. If those clips are the best my opponents could find in my entire presentation, you can be sure there were plenty of other comments in which I made my commitment to religious liberty quite clear.
During the confirmation process, I asked Senator Lee several times to meet with me so he could hear my views directly. He chose not to do. It is unfortunate that I did not have the opportunity to explain to Senator Lee how the quotes he was using failed to capture my full position.
Senator Lee and others may feel they have kept a rabid opponent to religious liberty off the Equal Employment Opportunity Commission. They are wrong. It is true that they have ensured that someone who cares deeply about bothreligious liberty and LGBT rights won’t be protecting those interests from the perch of the EEOC. But I have fought for the civil rights of LGBT people, religious people and others for years. I won’t be stopping now.
First published on my Medium page.
In a recent commentary in the Washington Times, Everett Piper, the President of Oklahoma Wesleyan University, attacked the Council for Christian Colleges and Universities and the National Association for Evangelicals for supporting legislation that would combine protection of religious liberty with anti-discrimination protection for LGBT persons. Piper’s big mistake is that he refuses to see that both religious people and LGBT people (and LGBT people who are religious) live in this country and that they (we) must find a way to live together in as much harmony as possible.
Along the way, he also makes the mistake of mischaracterizing my position. He repeats an out of context quote that suggests that I believe there is a “zero sum” game between religious liberty and LGBT rights and that LGBT rights must always prevail, no matter what.
That is not my position and never has been.
I believe there are some situations in which the rights of religious liberty for organizations who believe homosexuality is sinful will conflict with and should prevail over the rights of LGBT people who might experience discrimination at the hands of such religious organizations. The reason I believe that is because I care deeply about preserving religious pluralism in our country — even if it that means protecting religious organizations whose views I disagree with. That is the point of pluralism.
I referred to a “zero sum” concept in a law review article that I wrote eighteen years ago. The goal of that article was to raise awareness of the ways in which impending non-discrimination protection for LGBT people might burden religious people who believe homosexuality is sinful. I wanted to encourage progressive individuals to start thinking about that situation with caring and compassion. To make my case, I explained what was wrong with Professor Michael McConnell’s view that a government’s non-recognition of marriage for same-sex couples is simply a “neutral” position by government that does not endorse homosexuality. Professor McConnell failed to appreciate that that type of government “neutrality” actually harms gay couples who wished to marry. I knew LGBT people would have no trouble with my analysis in that regard. But then I flipped the scenario and argued that when people assert that a non-discrimination law protecting LGBT people is also simply a “neutral” position by the government about non-discrimination, they were ignoring the reality that such a law might end up burdening those who believe homosexuality is sinful.
Thus, the “zero-sum” concept was intended to convey the idea that there is in fact a conflict even when the government enacts rules that people incorrectly believe are “neutral.” Whether the situation is government failing to provide civil marriage to same-sex couples or government prohibiting employers and businesses from discriminating against LGBT people — the government is not acting simply in a neutral fashion. It is deciding what the rules of the game are. In the first situation, those rules harm gay couples. In the second situation, those rules might end up harming religious pluralism — unless the legislature intentionally considers the needs of religious liberty in the law.
The supporters of a bill such as Fairness for All and I would not necessarily agree on all the exemptions that should be provided to religious organizations in legislation protecting LGBT people from discrimination. But I am confident that we would agree on two things: We must not close our eyes to the conflict that might arise between the needs of LGBT people for protection from discrimination and the needs of religious organizations to thrive in this country and operate according to their beliefs; and we must grapple as a society as to how to ensure both equality for LGBT people and religious pluralism in our country and we must do so with a generosity of spirit.
First posted on my Medium page on August 1, 2018
In his decision for the Supreme Court in the case of Masterpiece Cakeshop v. Colorado, Justice Anthony Kennedy spoke eloquently about the dilemma courts face when they seek to uphold the right of gay people to be treated with “dignity and worth” and the right of individuals to hold “religious and philosophical objections” to gay people. Justice Kennedy did not seek to diminish or belittle either of these rights. He stated simply and clearly that sometimes these rights are in conflict and therefore courts must decide, perhaps differently in different cases, how to resolve that conflict or legislatures may choose to make some of these decisions initially
Justice Kennedy’s opinion was permeated with respect, dignity and nuance. One would not have known that from much of the response to the case. Many progressive LGBT advocates decried the outcome in the case and vowed to fight on against religious “bigotry” and “prejudice.” Many conservative religious advocates declared that the baker had won in the face-off against the “radical homosexual agenda” to eliminate any vestige of religious freedom in America — a fight they would continue to wage.
To my mind, both these responses miss the deeper point of our constitutional democracy. I believe that the way to remain a strong pluralistic society — one that permits religious groups and individuals to flourish and that permits LGBT individuals (including religious LGBT people) to live lives of dignity — is to see the nuance in difficult choices.
This is familiar territory to me. In 2009, I was nominated and confirmed as a Commissioner of the Equal Employment Opportunity Commission, the independent and bipartisan government agency that enforces federal employment civil rights laws. Beginning in 2009, various groups have mischaracterized my views in an effort to paint me as a radical opponent of religious liberty. Indeed, some have quoted me as saying “Gays win; Christians lose.” I have never said such a thing, nor would I.
Those who know me know that respect for religion is a paramount and lifelong value for me. My father was an Orthodox Jewish Rabbi, and on my mother’s side, I come from a long line of Hasidic Rabbis. I grew up in a home in which religion and God were the defining aspects of our daily lives. While I no longer observe the rules of Orthodox Judaism, respect for religion remains deeply ingrained in my being.
Moreover, the fabricated quote reflects a “winner-takes-all” mentality that refuses to accept the complexity of Justice Kennedy’s words in Masterpiece Cakeshop and insists instead on an outcome in which one side must always win and the other must always lose. This is a mentality that will not serve us well as a nation.
My personal experiences underscore the importance of protecting religious rights and beliefs. I attended Orthodox Jewish parochial schools for both primary and secondary school. It was essential to my parents that I attend a religious school and be taught certain subjects, beliefs and values in a protected setting. They were able to do that because the First Amendment ensures that the government cannot force religious parents to send their children to secular schools.
A priest, a pastor, an Orthodox Jewish Rabbi, an imam or any clergy person can never be forced to perform an inter-faith marriage or a marriage between two same-sex partners — because the First Amendment appropriately protects the right of members of the clergy to make such decisions based on their faith alone.
Sometimes it is Congress, not the Constitution, that protects religion through specific exemptions. For example, a private employer with more than fifteen employees may not discriminate on the basis of religion. Congress then appropriately created an exemption so that religious organizations can discriminate in favor of hiring people of their own religion, including hiring only those who comply with the tenets of the faith.
Partly in response to a Supreme Court decision in 1990, federal and state legislatures began to pass laws that protected the religious beliefs and practices of individuals, unless the government met a certain standard. At the same time, as societal views of LGBT people changed, legislatures began to pass laws protecting LGBT people from discrimination. That has set up a conflict for some. People can continue to hold their religious beliefs, and engage in religious practices, even if they are required to hire or serve people they feel are engaging in sin. But some may feel the law is compelling them to be complicit in sin. I understand those who feel this is too attenuated of a burden for the government to have to justify. But perhaps because of my upbringing as an Orthodox Jew, I can well understand the feeling that if God decides your actions have made you complicit in sin, that is all that matters.
I hold strongly to the belief that we can work through the complexity of these issues. Respecting religious organizations and people, and respecting LGBT organizations and people (including religious LGBT organizations and people) will result in different answers in different circumstances, and the law should reflect that. When dealing with religious organizations, the government should work to ensure that such organizations can thrive and flourish even if they hold and teach views that others may find offensive. When dealing with individuals, the government should respect a statement by a religious person that complying with a non-discrimination law or some other law will place a burden on that person’s religious beliefs, unless there is a good reason to believe that statement is false. If there is a way to accommodate the person and still achieve the compelling purpose of the law, the government should do that. If there is no way to accommodate the person, and still ensure that the compelling purpose of the law is achieved, then the accommodation should not be made. That is what nuance means.
If one believes there is only a “win-lose” battle, then everyone must be painted as a radical advocate of one side or another. But that is not a constructive way forward. What we need instead is to acknowledge the full and complex reality of those who are different from us and then find the generosity of spirit to reach across divides and come together in thoughtful and respectful dialogue. That is what our country needs and deserves.
It’s been quite a day. In the morning, the state of North Carolina filed a lawsuit seeking a declaratory judgment that sex discrimination law can’t possibly cover gender identity discrimination. In the afternoon, the Department of Justice filed a lawsuit seeking a declaratory judgment that sex discrimination law clearly covers gender identity discrimination. The comments by Attorney General Loretta Lynch announcing the lawsuit were incredible and well-worth listening to. So were the comments by AAG Vanita Gupta — a true heroine in this fight. I clearly need to update the short piece I wrote just a few weeks ago explaining why the North Carolina law violates federal sex discrimination law. That’s actually a delightful prospect.
Here’s the NYT’s story on Mississippi’s new religious liberty law: http://ow.ly/10kGXG And here’s the full text of law: http://ow.ly/10kIf8. Part of the law restricts state government from discriminating against an individual person who discriminates against an LGBT person in employment in certain ways. http://ow.ly/10kInV I hope folks in Mississippi know that federal law includes NO similar restriction. So if an LGBT person in Mississippi is discriminated against in an employment setting because of another individual’s religious beliefs, please let that person know he or she can file a charge with the EEOC. Here’s info for filing a charge at the EEOC’s Birmingham office, http://ow.ly/10kJfp and at the EEOC’s Jackson office. http://ow.ly/10kJ4t
The New York Times has published an important article on the actions that various federal agencies are considering in response to North Carolina’s hastily enacted new law. The new law repeals Charlotte’s LGBT anti-discrimination ordinance and mandates that schools and public agency employers require transgender students and employees to use restrooms that match the biological sex noted on their birth certificates rather than the gender identity with which they identify.
Readers may be perplexed as to what makes North Carolina so different from other states that do not explicitly protect LGBT people from discrimination, a point raised by a state official quoted in the article.
The article explains that it is:
correct that federal anti-discrimination laws do not explicitly mention gay and transgender people: the Obama administration has repeatedly called on Congress to pass a law banning discrimination against them in employment decisions. On several occasions, however, the administration has also said that gay, lesbian and transgender people are already covered by laws banning sex discrimination.
Say what? This may sound confusing: if there is no explicit mention in the laws, how can the administration find that LGBT people are protected under such laws? The answer is that a number of agencies have concluded that prohibitions on discrimination based on sex inherently cover discrimination based on gender identity and sexual orientation. This interpretation has been adopted by a number of courts, in addition to the federal agencies.
The result is that LGBT people do, in fact, have the ability today to secure assistance from federal agencies in a range of areas, from employment to education to health care.
Let’s focus on workplace discrimination.
The new North Carolina law added the term “biological” to “sex” in its anti-discrimination law to deny protection of the state’s sex discrimination law to transgender persons. Too late. As the EEOC makes clear on its website, a contrary state law is never a defense to the charge that a federal law has been violated.
And under federal law, courts and the EEOC have ruled that discrimination against transgender people is sex discrimination. The most explicit statement came from the Eleventh Circuit in the case of Glenn v. Brumby in 2011. A number of courts, both before and after, have agreed with that position. (Check out the most recent decision on 3/18/16, Fabian v. Hosp. of Cent. Conn.)
In April 2012, the Equal Employment Opportunity Commission (EEOC), in Macy v. DOJ, ruled that discrimination based on gender identity is always discrimination based on sex. Although the EEOC’s ruling was announced in the context of federal employment, its legal position applies to private employers with 15 or more employees and to all state and local employers. That opened the door for transgender people in every state to bring claims of employment discrimination to the EEOC and many have done so.
All this adds up to the following: According to the EEOC, all transgender applicants and employees in North Carolina are protected from discrimination and can file a claim with the EEOC if they experience discrimination. In fact, every transgender applicant or employee in every state can file such a claim.
What about bathrooms? North Carolina’s law is unique in that it affirmatively requires discrimination against transgender employees of state public agencies and transgender students in public educational settings by affirmatively denying them access to an appropriate restroom. Most other states simply lack explicit protections for LGBT persons.
But again, this new law cannot overturn existing interpretations of federal law. In July 2015, the EEOC ruled in Lusardi v. Dept of Army that transgender employees must be provided access to the restroom consistent with their gender identity. Again, the agency’s legal position applied to private employers and state and local employers. Shortly afterwards, a private employer, Deluxe Financial, settled a case the EEOC had brought challenging the employer’s denial of appropriate restroom access to a transgender employee. Other private employers have settled with the EEOC as well in transgender discrimination cases.
Outside the context of employment, other federal agencies have taken positions similar to the EEOC. For example, in October 2015, the Department of Justice (DOJ) filed a brief in the case of GG v. Gloucester stating that federal law prohibited a school that received federal funds from denying a transgender student access to the restroom consistent with his gender identity.
Federal law is also evolving for claims of discrimination against lesbian, gay, and bisexual persons. The EEOC ruled, in Baldwin v. DOT, and has argued in court, that Title VII’s sex discrimination prohibition protects lesbian, gay, bisexual and heterosexual applicants and employees from discrimination based on their sexual orientation. Here too, the tide is turning in the courts – but only more recently. (A few great cases to read are Isaacs and Videckis, as well as Christensen — a case in which a district court judge appeals to the Second Circuit to affirmatively change its precedent.)
Although the new North Carolina law does not affirmatively require discrimination against LGB people, its repeal of the Charlotte ordinance removes the guaranteed and clear protection for LGBT people that a new law offers. In the meantime, though, every LGB person in Charlotte, other North Carolina cities, or any city in the United States can at least come to an EEOC office and file a charge if they experience discrimination.
A lot has changed for LGBT people over the past decade. But we need to keep on moving – onwards and upwards.
Judge Myron Thompson, a U.S. district court judge in M.D. Alabama, Northern Division, issued an awesome analysis of Title VII in the case of Isaacs v. Felder Services LLC. The decision, handed down on 10/29/15, agreed with the EEOC that discrimination based on sexual orientation is always a form of sex discrimination. I hope and expect to see more courts adopting this common-sense reading of Title VII. In the Isaacs case, Judge Thompson ruled against the plaintiff on the merits of his claim, given the facts of the case. But KUDOS to Judge Thompson for recognizing that a sexual orientation discrimination claim is cognizable under Title VII.
Here’s the key language:
This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII. In EEOC Appeal No. 0120133080, 2015 WL 4397641, at *4–*10 (July 16, 2015), the Commission explains persuasively why “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Id. at *5. Particularly compelling is its reliance on Eleventh Circuit precedent, id. at *7:
“Title VII … prohibits employers from treating an employee or applicant differently than other employees or applicants based on the fact that such individuals are in a same-sex marriage or because the employee has [or is interested in having] a personal association with someone of a particular sex. Adverse action on that basis is, ‘by definition,’ discrimination because of the employee or applicant’s sex. Cf. Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (‘Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race [in violation of Title VII].’).”
See also Andrew Koppelman, “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination,” 69 N.Y.U. L.Rev. 197, 208 (1994) (“If a business fires Ricky … because of his sexual activities with Fred, while th[is] action [ ] would not have been taken against Lucy if she did exactly the same things with Fred, then Ricky is being discriminated against because of his sex.”).
To the extent that sexual orientation discrimination occurs not because of the targeted individual’s romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from “heterosexually defined gender norms,” this, too, is sex discrimination, of the gender-stereotyping variety. EEOC Appeal No. 0120133080, 2015 WL 4397641, at *7–*8 (citation omitted); see also Latta v. Otter, 771 F.3d 456, 486 (9th Cir. 2014) (Berzon, J., concurring) (“The notion underlying the Supreme Court’s anti-stereotyping doctrine in both Fourteenth Amendment and Title VII cases is simple, but compelling: ‘[n]obody should be forced into a predetermined role on account of sex,’ or punished for failing to conform to prescriptive expectations of what behavior is appropriate for one’s gender. See Ruth Bader Ginsburg, ‘Gender and the Constitution,’ 44 U. Cin. L.Rev. 1, 1 (1975). In other words, laws [and employment practices] that give effect to ‘pervasive sex-role stereotype[s]’ about the behavior appropriate for men and women are damaging because they restrict individual choices by punishing those men and women who do not fit the stereotyped mold. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 738 (2003).”).
Eric Meyer, whom I very much respect, wrote a post about whether I was correct to describe the case of Dawson v. H&H Electric as one in which a federal court held that discrimination on the basis of transgender status presents a valid claim of sex discrimination under Title VII. As Meyer put it, that characterization was incorrect because “the court denied the employer’s motion to summary judgment on other grounds” — the application of sex stereotyping protection.
But I stand by my conclusion. I don’t draw a distinction because a valid claim of sex discrimination is founded on sex stereotyping or because the claim is based on the plain meaning of the word sex. Both get a person to the same place: the ability to bring a claim based on transgender status as a claim of sex discrimination. The theory of getting there doesn’t matter. The result does.
As the judge in Dawson said:
It is well settled that Title VII’s interdiction of discrimination “because of [an] individual’s sex,” 42 U.S.C. § 2000e-2(a)(1), prohibits an employer from taking adverse action because an employee’s behavior or appearance fails to conform to gender stereotypes. [citing Price Waterhouse and other cases.] The Court finds that Dawson pleads facts sufficient to state a legally viable claim that H&H discriminated against her because of her sex in violation of Title VII. (emphasis added)
The court thought there was a difference between its reasoning and what the EEOC was saying in our amicus brief. But I don’t think so. I think people have made a distinction between a claim based on sex stereotyping and a claim based on the plain meaning of the word sex because the sex stereotyping theory has been around for so long and has not been applied consistently to protect transgender people (or LGB people). But I hope those days are over. In the Macy decision and the Baldwin decision, the EEOC used both theories to get to the result of protection for transgender people and LGB people. But either theory would have sufficed. Either way you get there, protection is at the end of the road.
Fifteen years ago, I wrote a chapter called From Bella to ENDA, chronicling legislative efforts to pass a federal gay civil rights bill, from Congresswoman Bella Abzug’s Equality Act of 1974 through the last version of ENDA in 1999. I ended at a point at which passage of ENDA seemed possible.
In 2015, Congress still has not passed ENDA. But oh – behold the circle of life (and politics). Congresswoman’s Abzug’s bill was comprehensive – it added a prohibition against sexual orientation discrimination to all titles of the Civil Rights Act of 1964, as well as prohibitions against sex discrimination in various titles of the Civil Rights Act of 1964 in which sex had not been included.
After 41 years, we finally have a bill — the Equality Act of 2015 — that matches the comprehensiveness of the 1974 bill. Wow – yay!
But there is even more good news. A major theme in From Bella to ENDA was that gay rights advocates ought to feel comfortable arguing that love and sex between people of the same sex is as morally good as love and sex between people of the opposite sex. I clearly yearned for such an argument– writing about it before 2000 (e.g., in 1996 and 1997) and after 2000 (e.g., in 2005, 2006 and 2009).
Maybe we are here now at such a time – or close to it. The Supreme Court’s decision in Obergefell v. Hodges was a major statement of the moral respect to be accorded to gay men and lesbians seeking to marry. Having more people believe that “gay is good” may make it easier to pass anti-discrimination laws.
But there is other good news on the anti-discrimination front. The common-sense legal logic of the EEOC’s opinion in Baldwin v. Foxx — which concluded that sexual orientation discrimination is a form of sex discrimination and thus protected under existing sex discrimination laws – may well be adopted by other federal and state agencies, and by courts at all levels, as they apply and interpret existing sex discrimination laws.
It will still be a good thing for Congress to enact the Equality Act of 2015. But, in the meantime, we are heading towards equality and fairness for LGBT people in this country at – oh, such a quicker pace — than the 26 years chronicled in From Bella to ENDA.