Federal Judge Says Religion Gives You A Right To Discriminate



There are two narratives, both of which are true, that can be told about America’s long history of bigotry and discrimination.

The first is a narrative of progress and improvement. In this version, the descendants of former slaves serve in Congress. Same-sex couples enjoy the right to marry. A woman is poised to become the next President of the United States. It’s the narrative President Obama appealed to when he implored voters to “choose our better history.” And it is the story of America that allowed him to become the first African-American president.

But there is another, far more sinister American story. In this story, Native American slavery is largely abandoned, but replaced by African slavery. African Americans become freedmen, only to be trampled by Black Codes and peonage. America’s darker history is what led Stokely Carmichael to quip that the only position for women in his civil rights movement is “prone.” It’s the history that brought millions to the polls in 2004 to lash out against marriage equality.

The original Jim Crow, a caricature of people of African descent

In America’s sinister history, someone must always be Jim Crow. Someone must be the scapegoat. The hated other. Bigotry never dies, it just finds a new home.

On Thursday, Judge Sean F. Cox, a George W. Bush appointee,declared that transgender people are the new scapegoats. He did so in a 56-page legal opinion that sits as much on the knife-edge of America’s culture wars as it does at a crossroads between two very different futures for American law.

His opinion, should it be upheld on appeal, offers a license to business owners to engage in anti-trans bigotry. It also opens the door to a whole new round of cases alleging that discrimination is permissible just as long as it is justified by an appeal to religious faith.

What Hath Hobby Lobby Wrought?

Judge Cox’s opinion in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes confronts a legal issue that is genuinely uncertain in the wake of a Supreme Court decision that could remake the balance of power between religious objectors and the rule of law. Prior to the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby, a religious objector’s right to defy the law ended when such defiance intruded on the rights of others — and this was especially true in the business context. As the Supreme Court explained in United States v. Lee, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

Additionally, a long line of cases established that religion cannot be used specifically to justify bigotry. A unanimous Supreme Court held that a restaurant owner’s religious challenge to the ban on whites-only lunch counters was “patently frivolous.” A religious university could not demand tax subsidies so long as it maintained racist policies. A Christian school could not use religion to justify its decision to compensate its women employees less than men.

Then came Hobby Lobby, which held, for the first time, that a religious liberty claim could trump the rights of third parties — in that case, the rights of women seeking contraceptive coverage. Justice Samuel Alito’s majority opinion did address the question of what impact this new regime would have on civil rights laws, but only incompletely. “The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race,” Alito conceded. “And prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” Left unspoken is whether other forms of discrimination, such as discrimination against women or LGBT people, also remains forbidden when someone claims that they have a religious right to disriminate.

Enter Judge Cox

R.G. & G.R. Harris should have been a very easy case. The case involves a funeral home owner who fired one of his funeral directors, Amiee Australia Stephens, after Stephens came out as trans and announced her intention to begin living as a woman. Stephens’ boss admits that he fired her because Stephens “was no longer going to represent himself as a man” and because she “wanted to dress as a woman.” He added that he believes that permitting Stephens to dress as a woman “would violate God’s commands because, among other reasons, [the owner] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”

Title VII of the Civil Rights Act of 1964 prohibits an employer from firing an employee “because of such individual’s race, color, religion, sex, or national origin,” where “sex” refers to gender and not sexual orientation. So the law forbids discrimination “because of . . . sex” and this particular employer openly admits that he fired Stephens because of his personal prejudices regarding sex. This really isn’t a hard case.

Judge Cox decides to complicate the issue, however, by denying that firing someone because they are transgender is a form of sex discrimination. Instead, he holds that Stephens sole claim is under a line of cases prohibiting “sex/gender-stereotyping.” Stephens case is allowed to proceed because she was fired for failing to “conform to the Funeral Home’s sex/gender based stereotypes as to work clothing.”

A protester offers a different view than the one expressed by Judge Sean Cox in a recent opinion. (CREDIT:(AP PHOTO/PABLO MARTINEZ MONSIVAIS)

As a practical matter, this may seem like a purely semantic difference. Regardless of whether Stephens’ case is framed as a sex discrimination case or a sex stereotyping case, her employer still broke the law. But Cox manages to make a great deal of this seemingly minor distinction.

The Religious Freedom Restoration Act (RFRA) permits religious objectors to ignore laws that “substantially burden” their “exercise of religion,” unless the government can show that applying the law “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” Prior to Hobby Lobby, there was little question that anti-discrimination laws were not trumped by RFRA, and Hobby Lobby itself concedes that laws banning race discrimination further a compelling interest and use the least restrictive means of doing so.

But what about laws banning sex stereotyping?

To answer this question, Judge Cox draws a very fine distinction. The specific conflict in this case arose because of the funeral home’s gendered dress code. Male employees who interact with the public are required to wear a male business suit and tie, while women are required to wear a skirt suit. As a woman, Stephens wanted to wear a skirt suit. Her employer demanded that she wear a male pant suit and tie.

As Judge Cox writes, the federal agency that sued on Stephens behalf “has not challenged the Funeral Home’s sex-specific dress code, that requires female employees to wear a skirt-suit and requires males to wear a pants-suit with a neck tie.” Instead, it argued that “Stephens has a Title VII right to ‘dress as a woman’ (ie., dress in a stereotypical feminine manner) while working at the Funeral Home, in order to express Stephens’s gender identity.” For Cox, this very fine distinction is fatal to Stephens’ case:

If the compelling interest is truly in eliminating gender stereotypes, the Court fails to see why the EEOC couldn’t propose a gender-neutral dress code as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here. But the EEOC has not even discussed such an option, maintaining that Stephens must be allowed to wear a skirt-suit in order to express Stephens’s gender identity.

In essence, Cox argues that the right Stephens seeks, the right to wear a skirt suit at work, is not the “least restrictive means” of eliminating gender stereotyping at work. Instead of seeking this right, she could have instead sued to challenge the workplace’s rule requiring men and women to dress differently.

It’s a confusing ruling for several reasons. For one thing, Stephens wasn’t seeking a sweeping change to her employer’s policy. She was seeking an narrow, individualized accommodation that would allow her to wear female attire to work. It’s far from clear why Judge Cox thinks that forcing an employer to change a company-wide policy is a “less restrictive” option than simply allowing one woman to wear a skirt to work.

Cox’s solution, moreover, doesn’t really address Ms. Stephens’ concern. The entire point of this lawsuit is that Stephens wants to be able to continue her vocation while also living her life as a woman. Changing the employer’s policy so that women can wear stereotypically masculine clothing does little to address her core concern.

The New Hated Other

So Judge Cox’s opinion is an odd one, but it is also a very clever decision. AfterHobby Lobby, there is some uncertainty about whether religious objectors enjoy a right to discriminate. But pre-Hobby Lobby law is clear that such discrimination is not allowed. And even Hobby Lobby itself says that religious objections are not a license to engage in some forms of discrimination.

Cox resolves this uncertainty in two questionable steps. He denies trans people the right to bring basic sex discrimination suits, as opposed to sexstereotyping suits, and then he limits the force of sex stereotyping suits in a way that neuters their effectiveness against anti-trans employees. In effect, he imposes a kind of least-favored-litigant status on transgender plaintiffs, weakening their civil rights claims without having to dive into the thorny question of whether RFRA permits other kinds of discrimination.

Cox, in other words, chooses America’s sinister history. In his courtroom, someone must always be Jim Crow. And now, Jim Crow is a trans person.

Ian Millhiser

Justice Editor

Sotomayor shreds conservative SCOTUS justices for justifying “deadly force for no discernible gain”

Sotomayor shreds conservative SCOTUS justices for justifying "deadly force for no discernible gain"


In a powerful dissent this morning, Justice Sotomayor had some extremely critical words for her colleagues

In her dissent of the Supreme Court’s decision today to dismiss a case concerning the death of Israel Leija, Jr., Justice Sonia Sotomayor criticized her colleagues for sanctioning a “shoot first, think later approach to policing.”

Leija was shot to death in 2010 during a high-speed police chase on I-27 in Texas.According to NBC News, the chase began after a local officer tried to arrest Leija on an outstanding warrant at a fast food restaurant. During the 18-minute-long chase, Leija twice called police dispatch to warn he was armed and willing to shoot if the chase wasn’t called off.

Police laid spike strips at three spots along the highway in an attempt to disable Leija’s car. Despite orders from a superior to stand by until Leija reached the spike strips, State Trooper Chadrin Mullenix fired 6 shots from an overpass at the speeding car. At least 4 of these shots fatally hit Leija; none hit the car’s engine block.

“[I]t was clearly established under the Fourth Amendment,” Sotomayor wrote in her dissent, “that an officer in Mullenix’s position should not have fired the shots.”

“Mullenix took his shot when Leija was between 25 and 30 yards away from the spike strip, traveling at 85 miles per hour,” Sotomayor explained. “Even if his shots hit Leija’s engine block, the car would not have stopped instantly.”

After the shooting Mullenix said to his superior officer, “How’s that for proactive?” And though “the comment does not impact our legal analysis,” Sotomayor said, “[T]he comment seems to me revealing of the culture this court’s decision supports when it calls it reasonable — or even reasonably reasonable — to use deadly force for no discernible gain and over a supervisor’s express order to ‘stand by.’”

The Court’s decision could play a substantial role in shaping the way police misconduct cases are tried in the future.

Find the full RawStory report here.

The Supreme Court Is Less Popular Than It Has Been In Decades


Don’t let the cheering crowds outside the Supreme Court fool you. The largest share of Americans in 30 years has a negative view of the Supreme Court, according to a July survey by the Pew Research Center.

The Pew survey, released Thursday, found that 43 percent of Americans have an unfavorable opinion of the Supreme Court, compared with 48 percent of Americans who have a favorable opinion of it.

Supreme Court’s Image Declines

The increase in unfavorable views of the Supreme Court was driven by a rise in unfavorable views among Republicans. The percentage of Republicans who said they have an unfavorable opinion of the court went from 40 percent in March to 61 percent in the new survey. 

The Pew survey results could have been driven by dissatisfaction with recent Supreme Court decisions. The Supreme Court issued rulings in late June legalizing same-sex marriage nationwide and upholding the Affordable Care Act’s subsidies for buying insurance on state-run exchanges, both of which rankled conservatives. Sixty-three percent of survey respondents opposed to same-sex marriage, and 58 percent of respondents opposed to the Affordable Care Act, have an unfavorable opinion of the Supreme Court.

Views of the Supreme Court Strongly Linked to Opinions about SSM, ACA

Support for the court increased among Democrats over the same period, however. From March to July, the percentage of Democrats with a favorable opinion of the Supreme Court went from 54 percent to 62 percent.

The survey results will come as no surprise to Republican presidential candidates, who have elicited applause for attacking the Supreme Court in their stump speeches. Sen. Ted Cruz (R-Texas) has gone furthest in his criticism, arguing that the Supreme Court justices should be elected.

Pew surveyed 2,002 adults between July 14 and 20, using live interviewers to reach both landlines and cell phones.


Mike Huckabee Thinks Gay Marriage Is Bad Because Love Is Bad – Yes, Really (VIDEO)


Opponents of marriage equality are having a tough time acknowledging that they’ve lost. They continue to throw darts at the board, hoping something will stick, long after the bar has closed.

Mike Huckabee is one of those sore losers. In the past, he’s compared marriage equality to polygamy, bestiality, using profanity, drinking and he’s said it has the “ick factor.”

More recently, after the Supreme Court ruling that legalized same-sex marriage, Huckabee compared the ruling to a hate crime. On Sunday, though, Huckabee went all the way down the rabbit hole when he called love too “emotional and sentimental.”

On CNN on Sunday Morning, Huckabee discussed the Supreme Court ruling with Jake Tapper. Tapper asked Huckabee which undermined the institution of marriage more, same-sex marriage or infidelity and divorce among straight couples.

Huckabee compared it to two wings of an airplane, essentially saying that all are threats (although in researching all of his quotes, I find nothing on infidelity and the only quotes on divorce are of the type that shames single mothers).

He then went on to say that talking about love is a mistake. “The point of marriage,” he said, “is to create a relationship where two people are committed as life partners.”

“One of the mistakes we’ve even heard over the course of the same-sex marriage debate,” Huckabee continued, “is that marriage is all about just love and feeling and sentimentality. And regardless, heterosexual marriages are in trouble today because people see it as a selfish means of pleasing self rather than a committed relationship which the focus is upon meeting the needs of the partner and that sense of selfishness and the redefinition of love as to something that’s purely sentimental and emotional has been destructive and I think it will prove to be destructive in every definition of marriage, be it heterosexual, homosexual, or polygamy or wherever the marriage redefinition ends up taking us over the course of the next few years.

Here’s the video:

I’m sure many straight people would love to know that Huckabee is redefining their marriages as practical partnerships instead of one of love. Oh, and Governor Huckabee, infidelity is not caused by too much love in a marriage. Quite the opposite, actually. The people who do say that love should not be part of marriage, though, are usually the people who are unhappily married.

John Roberts Refuses To Grant Obamacare Emergency Stay

Chief Justice John Roberts

The Huffington Post

The Supreme Court has refused a group of doctors’ request to block implementation of the nation’s new health care law.

Chief Justice John Roberts turned away without comment Monday an emergency stay request from the Association of American Physicians & Surgeons, Inc. and the Alliance for Natural Health USA.

They asked the chief justice Friday to temporarily block the law, saying Congress had passed it incorrectly by starting it in the Senate instead of the House. Revenue-raising bills are supposed to originate in the lower chamber. They also wanted blocked doctor registration requirements they say will make it harder for independent non-Medicare physicians to treat Medicare-eligible patients.

Still pending is a decision on a temporary block on the law’s contraceptive coverage requirements, which was challenged by a group of nuns.

If Ruth Bader Ginsburg Is Replaced By A Republican, Here Is What Happens To The Law

Ruth Bader Ginsburg (Edited)

It doesn’t look good if The Court is packed with a Conservative majority

Think Progress

At a forum in Reston, Virginia on Tuesday, Justice Ruth Bader Ginsburg threw her most recent bucket of cold water on Courtwatchers urging her to retire while President Obama is still in the White House. A justice should remain “as long as she can do the job full steam,” according to Ginsburg. “At my age, you take it year by year. I’m OK this year.”

Ginsburg also cited Justices William Brennan and Thurgood Marshall, both liberal justices who retired under President George H.W. Bush. Yet, while Bush’s selection of the moderately liberal Justice David Souter to replace Brennan only moved the Court marginally to the right, his decision to replace America’s most significant civil rights attorney with the staunchly conservative Justice Clarence Thomas may be the most consequential Supreme Court appointment since Chief Justice Earl Warren joined the bench in 1953.

Marshall was in poor health when he left the Court, but he survived until a few days after President Clinton took the oath of office. Had Clinton selected Marshall’s replacement instead of Bush, the Citizens United case would have been an obvious loser that likely never would have been filed. There would likely be five votes on the Supreme Court to abolish voter ID laws. Practices like forced arbitration, which cause consumers and workers to sign away their right to sue businesses in a real court, would be far less widespread and likelywould not exist at all in employment contracts. A 1992 Supreme Court decision significantly limiting the right to choose an abortion would have come down the other way — and Roe v. Wade would likely have five solid votes on the Supreme Court.

The Voting Rights Act — all of it — would still be good law.

If a future Republican president has the opportunity to replace Justice Ginsburg, the results could be no less consequential. Here’s a short list of decisions that would immediately become vulnerable if Ginsburg’s vote went to a conservative justice:

  • No More Marriage EqualityUnited States v. Windsor — the decision striking down the unconstitutional Defense of Marriage Act — was a 5-4 decision with Ginsburg in the majority. If Ginsburg is replaced by another conservative, DOMA could roar back to life. At the very least, the nation’s drive towards nationwide marriage equality could come to a screeching halt.
  • Criminalizing Sex: Although Lawrence v. Texas, which struck down Texas’ “sodomy” law, was a 6-3 decision, one of those six justices has since been replaced by the staunchly conservative Justice Samuel Alito. If another member of the Lawrencemajority is replaced, it could lead to gay sex being outlawed entirely in several states.Lawrence‘s holding, however extends far beyond gay couples to prohibit laws criminalizing non-commercial sexual activity between consenting adults. Thus, ifLawrence falls, the government could find its way into every American’s bedroom.
  • The End of Abortion RightsRoe v. Wade is already on life support. Indeed, Justice Anthony Kennedy, who is the so-called swing vote on abortion, hasn’t voted to strike a law restricting the right to choose in 21 years. Nevertheless, Kennedy provided the key fifth vote to retain “the essential holding of Roe v. Wade” in a case called Planned Parenthood v. Casey. If Ginsburg is replaced by a conservative, there will likely be only four votes willing to retain that holding.
  • Watering Down Minority Votes: Five justices voted in League of United Latin American Citizens v. Perry to strike part of a Texas redistricting map because it tried to protect an incumbent Republican congressman by reducing the impact of Latino voters. If Ginsburg is replaced by a conservative, these kinds of tactics could become common.
  • Executing Children & The Intellectually Disabled: There are almost certainly four votes on the Supreme Court to permit executions of children and the intellectually disabled. Ginsburg’s replacement could be the fifth.
  • Judges for Sale: Four justices joined a dissent arguing that there’s nothing wrong with a wealthy businessman spending $3 million to place a judge on a state supreme court— only to have that judge cast the key vote to overturn a $50 million verdict against the businessman’s company. Ginsburg’s replacement could places judges up for sale.
  • Millions Without Health Care: Finally, the decision that largely preserved the Affordable Care Act was a 5-4 decision, with four justices voting to repeal Obamacare in its entirety. If those four justices gain a fifth vote, it could not only strip millions of Americans of the health insurance that they will soon gain under this law, but it could toss the entire American health care system into chaos. Among other things, if the dissent’s plan to repeal the Affordable Care Act in its entirety were to actually happen,Medicare could lose its ability to pay claims until the agency that administers the program completed a lengthy rule making process that can take months.

This list, of course, is only a small sample of the things that could happen if Ginsburg is replaced by a conservative. A full list would be much, much longer.


Wednesday Blog Roundup 11-20-2013

Harry Reid is set to go nuclear

President Romney? Voters say yes in new poll

Florida congressman charged with cocaine possession

Supreme Court decides not to block Texas’ abortion law

Koch Brothers’ Group Uses Health Care Law to Attack Democrats

Virginia Political Figure Stabbed as Son Takes Own Life, Police Say

If You’re a Millennial, Black, or Latino, Good Luck Voting Quickly in 2016

Bobby Jindal is right: Republicans aren’t ready to win back the White House.

McDonald’s Advice To Underpaid Employees: Sell Your Christmas Presents For Cash

Republicans Have Pushed Him Too Far and Now Harry Reid Is Ready to Go Nuclear


GOP’s 2014 – 2016 Agenda

Mario Piperni

I have no doubt that the actual chalkboard at a GOP strategy session looks much like the one depicted above. It is clear enough to anyone that’s been following the right’s clown show that Republicans have no desire to govern for the next three years. It’s all about obstructing and dismantling and what they can’t get done at the federal level, they’ll try to implement at the state level. They’ve already accomplished much with voter suppression and anti-choice laws in red states…but here’s a bit of good news breaking out of Texas.

A federal judge in Texas on Monday blocked an important part of the state’s restrictive new abortion law, which would have required doctors performing the procedure to have admitting privileges at a nearby hospital.

The decision, one day before the provision was to take effect, prevented a major disruption of the abortion clinics in Texas. It was a victory for abortion rights groups and clinics that said the measure served no medical purpose and could force as many as one-third of the state’s 36 abortion clinics to close.

Nice but you know that this is going to end up in the Supreme Court soon enough. The crazy people refuse to take no for an answer.


Scalia: Constitution doesn’t protect ‘only the blacks’

Justice Antonin Scalia has previously called for an end to “racial entitlements“.  Now he  has doubled down by saying that the 14th Amendment is for everyone, not only “the Blacks”.  Which is actually true on its face.  But, in 2011 he argued that the Constitution  does not protect gays or women.

Thus, Scalia has some explaining to do.  Just who does he think is protected by the 14th amendment and who is not?  Inquiring minds want to know…

The Huffington Post

During oral arguments on an affirmative action case on Tuesday, Supreme Court Justice Antonin Scalia said the 14th Amendment protects everyone, not “only the blacks.”

The quote was tweeted by the New York Times’ David Leonhardt:

The high court debated Tuesday whether voters can ban affirmative action programs through a referendum. The case is centered around a 2006 Michigan vote that approved a ballot initiative amending the state’s constitution to ban affirmative action programs in higher education.

Scalia has brought race into previous arguments. In February 2013, Scalia suggested that the continuation of Section 5 of the Voting Rights Act represented the “perpetuation of racial entitlement,” saying that lawmakers had only voted to renew the act in 2006 because there wasn’t anything to be gained politically from voting against it.

Elizabeth Warren Calls Supreme Court Right-Wing, ‘Pro-Corporate’

elizabeth warren supreme court
BOSTON – SEPTEMBER 2: Massachusetts Sen. Elizabeth Warren speaks at the annual Labor Council breakfast in Boston, Sept. 2, 2013. (Photo by Jessica Rinaldi for The Boston Globe via Getty Images)

In  my opinion Senator Warren is the smartest and bravest politician in Washington…

The Huffington Post

In a speech at an AFL-CIO convention on Sunday, Sen. Elizabeth Warren (D-Mass.) criticized the Supreme Court for being too right-wing and serving the interests of Big Business over the needs of Americans.

In voicing her support for the labor movement and promoting an agenda aimed at defending working families, Warren warned of conservative-leaning justices and a “corporate capture of the federal courts.”

“You follow this pro-corporate trend to its logical conclusion, and sooner or later you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of big business,” Warren said.

Warren said that Wall Street and major corporations are making it difficult for labor leaders to enact financial reform.

“The big banks and their army of lobbyists have fought every step of the way to delay, water down, block or strike down regulations,” Warren said. “When a new approach is proposed -– like my bill with John McCain, Angus King and Maria Cantwell to bring back Glass-Steagall -– you know what happens. They throw everything they’ve got against it.”

“I believe that if people would be opposed to a particular trade agreement, then that trade agreement should not happen,” she said.

Warren was citing a bipartisan bill aimed at separating lending and trading.

“Despite the progress we’ve made since 2008, the biggest banks continue to threaten the economy,” Warren said in a written statement defending the bill. “The four biggest banks are now 30 percent larger than they were just five years ago, and they have continued to engage in dangerous, high-risk practices that could once again put our economy at risk.”

After Warren concluded her speech, AFL-CIO President Richard Trumka praised the senator, saying, “Ah, if we could only clone her.”