Lesbian and Gay Rights
During President Clinton's Second Term
A Working Paper Published
By
The Citizens' Commission on Civil Rights
By Christopher Anders
Legislative Counsel, ACLU Washington National Office
January 1999
I. The President's Leadership
During the first half of his second term, President Clinton continued his decidedly mixed record on lesbian and gay rights. The President has advanced lesbian and gay rights further than all of his predecessors combined, but he also has harmed the lesbian and gay rights movement by actively opposing the ability of openly lesbian and gay members of the armed forces to serve and the right of couples of the same sex to have the same access to marriage as couples of opposite sexes.
The President has boldly used his office to help legitimize the lesbian and gay rights movement as an integral part of the broader civil rights movement. He routinely includes gay issues in his public speeches on civil rights and forcefully advocates for legislation protecting persons based on sexual orientation. His willingness to use his position to focus the nation on lesbian and gay rights has helped shift those issues into the mainstream of American political life.
The Clinton Administration has also defended gains made at the state and local levels through veto threats of anti-gay federal legislation. For example, during the 1999 appropriations process, the President threatened to veto the District of Columbia appropriations bill if it contained an amendment which would have banned joint adoptions in the District of Columbia by unmarried couples. The threat helped convince Congress not to reverse a court decision permitting lesbian and gay couples to adopt children jointly. The President has also used his office to push for proactive civil rights legislation such as the Employment Non-Discrimination Act and the Hate Crimes Prevention Act.
During the past two years, the Administration has continued to produce a string of firsts--the first openly lesbian or gay nominee for an ambassadorship in James Hormel, the first openly lesbian or gay nominee for the head of a federal agency in Elaine Kaplan, and the first appearance of a president before a lesbian and gay rights organization in the President's speech to the Human Rights Campaign. The Administration also used its existing statutory authority to make several important regulatory changes, including issuing an executive order banning discrimination based on sexual orientation in all civilian federal workplaces; providing new guidelines to public schools which explicitly state that Title IX's prohibition of sex discrimination bars anti-gay sexual harassment; requiring the Internal Revenue Service to treat all taxpayers, including applicants for tax-exempt status, without regard to sexual orientation; issuing a directive that ensures that all providers of federal health insurance abide by non-discrimination rules, which include sexual orientation; and granting asylum for gay men and lesbians facing persecution in other countries.
Despite those significant advances, two actions by the President continue to damage the fight for equality. The Administration's defense of the "don't ask-don't tell" compromise reached in the first year of the first Clinton Administration harms both individual lesbian and gay members of the military and the larger movement. The policy destroys the lives and careers of many members of the military who must choose between remaining closeted or losing their careers. Vigorous enforcement of the policy has also resulted in charges brought by women in the military stating that male superiors implicitly threatened to charge female subordinates with being homosexual in order to coerce sex from the subordinate. Finally, the Administration's defense of "don't ask-don't tell" has resulted in the federal government making legal arguments and defending cases that may create harmful legal precedents.
Similarly, the President's support for the Defense of Marriage Act ("DOMA") caused lasting damage. The Administration's strong record on many other lesbian and gay civil rights issues made the President's support for DOMA even more damaging. His signing of DOMA sent a signal to state legislators that even otherwise supportive legislators could vote for anti-gay marriage legislation. During the two years since the President signed DOMA, a majority of the states passed laws that forbid marriage between same-sex couples and refuse to recognize any such marriages performed in other states.
II. Anti-Gay Appropriations Riders During the 105th Congress
The appropriations process at the end of the 105th Congress brought several attempts to roll back civil rights protections for lesbians and gay men. The Administration had an important role in defeating the following non-germane anti-gay amendments to federal spending legislation.
A. Legislative Attack on President's Anti-Discrimination Order:
Congressman Joel Hefley (R-CO) offered an amendment to an appropriations bill prohibiting any enforcement of the President's executive order banning discrimination based on sexual orientation in all civilian federal workplaces. By a strong bipartisan vote, the House rejected the Hefley amendment by a vote of 252-176.
B. Legislative Attack on San Francisco Domestic Partnership Law:
Congressman Frank Riggs (R-CA) introduced an amendment to a federal housing appropriations bill that would have cut federal funding to San Francisco because it has an effective domestic partnership law. Although the amendment passed the House by a vote of 214-212, a conference committee killed the amendment before the appropriations bill's final passage.
C. Legislative Attack on District of Columbia Adoption Law:
Congressman Steve Largent (R-OK) sponsored an anti-gay amendment to the appropriations bill that provides funds for the District of Columbia. The Largent amendment would have prohibited the District of Columbia from spending any funds on joint adoptions by unmarried persons. A coalition of civil liberties and children's advocacy organizations lobbied in opposition to the amendment. Although those lobbying efforts helped to defeat the amendment in the Appropriations Committee, the House leadership allowed the full House to vote on the amendment as a way to appease its right-wing which lost a vote on their anti-gay Hefley amendment just one day earlier. The Largent amendment passed the House of Representatives by a vote of 227-192, but was not included in the final appropriations bill signed by the President.
III. FEDERAL CIVIL RIGHTS LEGISLATION DURING THE 105th AND THE 106th CONGRESSES
In addition to defending against anti-gay attacks during the appropriations process, advocates for lesbian and gay rights worked for legislative and regulatory changes that would protect lesbians and gay men from discrimination. Congress considered, but did not pass, the following legislation during the 105th Congress and is likely to focus on these issues during the 106th Congress.
A. Anti-Discrimination Legislation
During the 106th Congress, Congress is likely to continue its consideration of the Employment Non-Discrimination Act ("ENDA") which would, for the first time, provide a federal remedy for discrimination against lesbians and gay men in most workplaces employing 15 or more employees. It would ban discrimination based on sexual orientation in all aspects of employment, including hiring, firing, promotion, compensation, and most terms and conditions of employment.
Although all arbitrary discrimination is wrong, workplace discrimination is especially egregious. One example of this type of discrimination is the story of Robin Shahar, an attorney who lost a job offer at the State of Georgia Department of Law. Ms. Shahar graduated sixth in her class from Emory University Law School, was an editor of the Emory University Law Review, and clerked for the Georgia Department of Law. Despite those outstanding credentials, the Department withdrew its job offer after finding that Ms. Shahar is a lesbian. The United States Court of Appeals for the Eleventh Circuit recently decided that Ms. Shahar has no valid claim to fight the discrimination against her. That court would not have reached that decision if ENDA was law.
The threat of discrimination is a very real presence in most American workplaces. Most gay men and lesbians attempt to protect themselves against discrimination by hiding their identity. Hiding is not easy. It requires carefully policing even the most casual conversations, and banishing almost any acknowledgment of family and friends from the workplace. In addition to being difficult to do, hiding one's identity takes a terrible psychological toll on the person hiding, and often results in co-workers building walls between each other.
Studies and experience show that discrimination against lesbians and gay men in the workplace is arbitrary. Claims that lesbians and gay men are mentally ill, or that they harm the efficiency of the workplace have been proven to be baseless myths. Lesbians and gay men are capable employees, neither better nor worse than their heterosexual counterparts.
Ten states, numerous local governments, and many corporations, schools, and universities ban discrimination based on sexual orientation. Even with those state and local laws, very few people are protected against workplace discrimination based on sexual orientation. Contrary to popular belief, the vast majority of workers receive no protection from state or local laws. Without ENDA, many hard-working men and women will have little or no protection against discrimination.
ENDA will ban discrimination based on sexual orientation in all aspects of employment, including hiring, firing, promotion, compensation, and most terms and conditions of employment. ENDA's ban on discrimination will protect heterosexuals, lesbians and gay men, as well as workers who associate with gay and lesbian co-workers. ENDA will also protect workers from retaliation.
ENDA is modest. It applies only to discrimination in employment, not to housing and public accommodations, and only to employers with 15 or more employees. ENDA explicitly does not require that fringe benefits be provided to the partners of lesbian and gay workers. ENDA also expressly forbids the uses of quotas or preferential treatment.
In addition, ENDA does not apply to the armed forces and will have no effect on veterans' preference programs. ENDA also does not apply to religious organizations except to the extent that they engage in commercial businesses so divorced from their religious functions that they are subject to federal income tax. The exemption explicitly includes religious schools and hospitals.
In its basic structure, ENDA parallels Title VII of the Civil Rights Act of 1964, the law which prohibits employment discrimination based on race, religion, gender, and national origin. It provides similar procedures and remedies to Title VII.
In short, ENDA forbids employment discrimination based on sexual orientation, nothing more and nothing less. By passing ENDA, this Congress will help ensure that everyone can enter and succeed in the workplace without regard to sexual orientation. Congress can begin the process of putting an end to discrimination based on sexual orientation.
B. Expansion of the Federal Criminal Civil Rights Statute
The 106th Congress is also likely to continue its consideration of the Hate Crimes Prevention Act, which would amend the principal federal criminal civil rights statute to address the continuing problem of an inadequate state and local response to violent attacks on persons based on race, color, national origin, religion, sexual orientation, gender, or disability. 1
Properly drafted legislation is particularly timely as a response to the rising tide of violence directed at people because of such characteristics. Those crimes convey a constitutionally unprotected threat against the peaceable enjoyment of public places to members of the targeted group.
Pursuant to the Hate Crime Statistics Act, the Federal Bureau of Investigation annually collects and reports statistics on the number of bias-related criminal incidents reported by local and state law enforcement officials. In 1996, based on reports from law enforcement agencies covering 84% of the nation's population, the FBI reported 8,759 incidents covered by the Act. 5,396 of those incidents were related to race, 1,401 to religion, 1,016 to sexual orientation, 940 to ethnicity or national origin, and six to multiple categories.
Existing federal law does not provide any separate offense for violent acts based on race, color, national origin, or religion, unless the defendant intended to interfere with the victim's participation in certain enumerated activities. 18 U.S.C.A. § 245(b)(2). During hearings in the 105th Congress, advocates for racial, ethnic, and religious minorities presented substantial evidence of the problems resulting from the inability of the federal government to prosecute crimes based on race, color, national origin, or religion without any tie to an enumerated activity. Those cases include violent crimes based on a protected class, which state or local officials either inadequately investigated or declined to prosecute.
In addition, existing federal law does not provide any separate offense whatsoever for violent acts based on sexual orientation, gender, or disability. The exclusion of sexual orientation, gender, and disability from section 245 can have bizarre results. For example, in an appeal by a person convicted of killing a black gay man, the defendant argued that "the evidence established, if anything, that he beat [the victim] because he believed him to be a homosexual and not because he was black." United States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir. 1984), cert. denied, 469 U.S. 838 (1984). Among the evidence that the court cited in affirming the conviction because of violence based on race, was testimony that the defendant killed the black gay victim, but allowed a white gay man to escape after the defendant broke a dowel rod on the white gay man's head. Id. at 1095, 1098. Striking or killing a person solely because of that person's sexual orientation would not have resulted in a conviction under that statute.
Other accounts of violence because of a person's sexual orientation include:
Although many states have enacted hate crimes laws, those laws do not protect all groups. For example, only twenty states include sexual orientation in their bias crimes statutes, only eighteen states include gender, and only twenty states include disability.
Moreover, state and local law enforcement officials have often been hostile to the needs of gay men and lesbians. The fear of state and local police--which many gay men and lesbians share with members of other minorities--is not unwarranted. For example, until recently, the Maryland state police department refused to employ gay men or lesbians as state police officers. In addition, several months ago, a District of Columbia police lieutenant who headed the police unit that investigates extortion cases was arrested by the FBI for attempting to extort $10,000 from a married man seen leaving a gay bar. Police officers referred to the practice as "fairy shaking."
The problem of crimes based on gender is also persistent. For example, two women cadets at the Citadel, a military school that had only recently opened its doors to female students, were singled out and "hazed" by male cadets who did not believe that women had a right to be at the school. Male cadets sprayed the two women with nail polish remover and then set their clothes ablaze, not once, but three times within a two month period. One male cadet also threatened one of the two women by saying that he would cut her "heart out" if he ever saw her alone off campus.
Congress should pass properly drafted legislation that provides remedies against invidious discrimination and makes illegal discrimination by private organizations when it excludes persons from access to fundamental rights or from the opportunity to participate in the political or social life of the community. The serious problem of crime directed at members of society because of their race, color, religion, national origin, gender, sexual orientation, or disability merits legislative action.
C. Legislative Conflict Between Religious Liberty and Civil Rights
During the 105th Congress, members of the House and Senate Judiciary Committees considered, but did not pass, the Religious Liberty Protection Act ("RLPA"), which would protect the exercise of religious beliefs from interference by state or local governments. An important issue that the 106th Congress will have to address is the prospect that defendants in civil rights cases could use RLPA as a defense to civil rights claims, particularly discrimination claims based on sexual orientation.
RLPA would provide extensive statutory protection for religious exercise to replace or enhance the constitutional protection previously afforded religious exercise prior to a 1988 Supreme Court decision that lowered the standard of review for religious exercise claims. As reported out of the House Constitution Subcommittee, RLPA provides, in relevant part, that:
a [state or local] government shall not substantially burden a person's religious exercise in a program or activity, operated by a government, that receives federal financial assistance, even if the burden results from a rule of general applicability. . . . [unless the] government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
H.R. 4019, § 2(a)-2(b). Other versions of the legislation apply the same test, but also rely on Congress' Commerce Clause authority.
Although the objective of enhancing the protection of the exercise of religious belief from governmental interference is important, several recent cases raise significant concerns that defendants in civil rights cases could use RLPA as a defense to state or local civil rights claims. RLPA does not have any specific provision for reconciling such potentially serious conflicts between a defendant's claim that religious belief motivated his or her discriminatory act, and a civil rights plaintiff's claim that state or local anti-discrimination statutes provide protection against such discrimination--regardless of the defendant's motivation. Consequently, without any further amendments, RLPA could potentially jeopardize certain civil rights claims in at least some states, and will increase the litigation costs for civil rights plaintiffs even for those claims where a RLPA defense would be unsuccessful.
The scope of the potential problem is broad. In deciding housing discrimination claims based on marital status, several state supreme courts have recently considered whether religious liberty statutes or state constitutional provisions provide a defense to civil rights claims. The discussions in those recent decisions closely parallel older court decisions regarding discrimination based on characteristics such as race and sexual orientation, which applied the heightened constitutional scrutiny formerly applied to religious liberty challenges to state laws. In addition, witnesses during hearings in the 105th Congress before the House and Senate Judiciary Committees stated their belief that RLPA could be used as a defense to civil rights claims based on gender, religion, sexual orientation, and marital status.
In applying standards of review substantially similar to the RLPA religious exercise standard, five state supreme courts have recently decided cases in which defendants raised a religious liberty defense to civil rights claims based on state or local laws protecting against discrimination in housing based on marital status. See Smith v. Fair Employment & Housing Comm'n, 913 P.2d 909 (Cal. 1996) [hereinafter "FEHC"] ("marital status" includes unmarried heterosexual couples; no substantial burden on religious exercise found); Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994) (remanding for further consideration of whether the governmental interest is compelling); Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska), cert. denied, 115 S. Ct. 460 (1994) ("marital status" includes unmarried heterosexual couples; the government's interest in providing equal access to housing is compelling); Cooper v. French, 460 N.W.2d 2 (Minn. 1990) ("marital status" does not include unmarried cohabiting couples; a plurality of the court also found no compelling governmental interest in preventing marital status discrimination); Jasniowski v. Rushing, 678 N.E.2d 743 (Ill. App. 1997) (governmental interest in eradicating discrimination in housing against unmarried couples was compelling), vacated for lack of case or controversy, 685 N.E.2d 622 (Ill. 1997), __ N.E.2d ___.
In those housing cases, the rental properties at issue were not owner-occupied, but instead were used solely for investment purposes. See Desilets, 636 N.E.2d at 238 n.8 (law applicable only to "dwellings that are rented to three or more families living independently of each other"); Swanner, 874 P.2d at __ (statute provides exception for individual home "wherein the renter or lessee would share common living areas with the owner"); French, 460 N.W.2d 2 (owner did not live in subject property, a two-bedroom house); FEHC, 913 P.2d at 912 (Smith "does not reside in any of the four units"); Jasniowski, 678 N.E.2d at 745 (renting a "building comprised of both commercial space and a residential apartment"). The landlords all claimed that their sincerely held religious beliefs about premarital sexual relations required them to deny housing to unmarried couples, despite state or local laws prohibiting discrimination on the basis of marital status in housing. Although the religious liberty defense was not always successful, the courts were split on whether the anti-discrimination laws impose a substantial burden on the exercise of the landlord's religion, and on whether the governmental interest in eradicating marital status discrimination in housing is compelling.
Defendants in civil rights cases have also raised religious liberty defenses in cases involving such characteristics as race or sexual orientation and in contexts ranging from educational institutions to employment. For example, defendants or courts unsuccessfully raised religious rationales for racially discriminatory practices. E.g., Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (religious university claimed that its religious beliefs about miscegenation justified racial discrimination in admissions); see also Loving v. Virginia, 388 U.S. 1 (1967) (invalidating a Virginia anti-miscegenation statute).
Prior to the Supreme Court lowering the standard of review for religious liberty claims in Employment Division of Oregon v. Smith, 485 U.S. 660 (1988), the use of religious liberty defenses to civil rights claims was widespread. See, e.g., Bob Jones Univ., 461 U.S. 574, 604; EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272 (9th Cir. 1982) (religious publishing house claimed that dismissing employee in retaliation for bringing discrimination charges was based on religious doctrine forbidding members of the church from bringing lawsuits against the church); Walker v. First Orthodox Presbyterian Church, 22 FEP Cases (BNA) 762 (Cal. Sup. Ct. 1980) (church dismissed gay organist because church doctrine forbids "unrepentant sinners" from taking a leadership role in musical services, despite city ordinance forbidding sexual orientation discrimination in employment); Minnesota ex rel. McClure v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn. 1985) (health club's owners insisted on hiring only employees whose religious beliefs were consistent with the owners' religious beliefs despite state anti-discrimination law forbidding employment discrimination based on religion, sex, and marital status); Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1 (D.C. App. 1987) (religious university argued that its religious beliefs justified the denial of "University Recognition" to gay student group despite a District of Columbia civil rights law prohibiting discrimination on the basis of sexual orientation).
In addition, during recent Congressional hearings, advocates for religious groups testified that RLPA could be used as a defense to allow a sectarian vocational-tech school receiving federal funds to offer single-sex education, despite federal laws prohibiting sex discrimination in education; to permit a religiously-affiliated day care center to discriminate on the basis of religion in hiring instructors; to permit employers with sincerely held religious beliefs to discriminate against gay men and lesbians in hiring employees, despite state or local laws prohibiting discrimination on the basis of sexual orientation; and to allow landlords with religious objections to refuse to rent to unmarried couples, despite state or local fair housing laws protecting against discrimination based on marital status. State and local laws also provide protection based on other characteristics that receive less than strict scrutiny, such as disability, familial status, or pregnancy.
Although the governmental interest in eradicating discrimination has usually been found compelling, providing a new defense in civil rights actions will--at minimum--increase the cost of litigation for plaintiffs. However, the risk for persons claiming civil rights protection based on characteristics that receive lower levels of scrutiny is substantial. Because many of the groups claiming protection under state and local civil rights laws do not currently receive heightened scrutiny for their claims in court, and receive little or no explicit federal statutory protection from Congress, it is likely that at least some courts would find that the governmental interest in ending discrimination against these groups is not compelling. As noted above, the courts are divided on the question, and these decisions have come from states which traditionally have been vigorous and strict in enforcing their civil rights laws.
For these reasons, Congress should modify its approach to enhancing the protection of religious expression to ensure that any new statute does not eviscerate the protection provided by state and local civil rights laws.
D. Megan's Law Reform Legislation
The 106th Congress may continue consideration of legislation that then-Congressman Charles Schumer (D-NY) introduced in the 105th Congress, which would deprive states of certain federal funds if those states require persons convicted solely of consensual sexual offenses from registering under state Meg