Another Day, Another Victory: Courts Are Weighing Religious Claims to Discriminate and Finding Them Wanting
In just the past 24 hours, two courts reaffirmed that religious beliefs can’t justify discrimination against lesbians and gay men. In the wake of the Supreme Court decision that same-sex couples have the same freedom to marry that straight couples do, a few opponents of marriage equality continue to try to use their religious beliefs as an excuse to discriminate against us and our marriages. In both of these ACLU cases, courts have said nope, that’s not okay.
The first case involves Kim Davis, clerk of Rowan County, Kentucky. Within hours of the Supreme Court’s decision in Obergefell v. Hodges, Davis announced that she would stop issuing marriage licenses to any couples, straight or gay, because she has religious objections to marriage for same-sex couples. Four couples — two gay and two straight — sued Davis, saying that her personal religious beliefs didn’t excuse her from doing her job.
In a decision yesterday, federal District Judge David Bunning agreed. He explained that “Davis is certainly free to disagree with the Court’s decision [about marriage], as many Americans likely do, but that does not excuse her from complying with it.” Signing a marriage license “does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that . . . the couple is qualified to marry under Kentucky law.”
Religious freedom is central to American liberty, but it’s simply not infringed here.
The second case involves Charlie Craig and David Mullins, who took Charlie’s mom on an outing near their home in Colorado to look at wedding cakes. After the owner of Masterpiece Cakeshop learned that the cake was for the two guys, he said he just doesn’t do wedding cakes for gay people. That frank admission violates longstanding Colorado civil rights law, which says that businesses that are open to the public must serve everyone, regardless of race, sex, religion, or sexual orientation. Charlie and David sued, making clear that it’s not about the cake — it’s about being told “we don’t serve your kind here.”
Today the Colorado Court of Appeals agreed with Charlie and David, ruling that the business owner’s religious beliefs don’t give him a license to discriminate. The court , “Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage. However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, [the state’s law against discrimination] prohibits it from picking and choosing its customers based on their sexual orientation.”
These cases extend an almost unbroken line of court cases ruling for equality and against the use of religion to discriminate. But they won’t be the end of our opponents’ efforts to undermine the freedom to marry and LGBT equality. They are turning increasingly to state legislatures and to Congress to secure the right to discriminate against LGBT people, women, and others.
For example, the First Amendment Defense Act, a bill introduced in Congress, would legalize discrimination in the name of religion by people all across the country. The bill was put on hold earlier this summer after word got out about how terrible a law it would be. But we expect it to come back this fall, and if the initial support it had from conservatives was any indication, we can bet it’s not going to die without a fight.
Make no mistake: That bill is this spring’s Indiana situation on steroids, and any elected official who watched Gov. Pence’s approval ratings plummet because of his support for discrimination should think twice about pushing this so-called religious liberty bill. Bills like this one may pop up in some of the states too, and we should be prepared to beat back bad laws that will undermine equality for many in America.
So far, though, equality is doing very well in the courts, which are refusing to expand religious liberty to the point that it would justify discrimination and harming third parties. For that, we are grateful. One can only hope that legislators learn the constitutional lessons coming from the courts.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.