OPINION
Judges admit error
P
oliticians of the executive and legislative breeds have been known to say “I was wrong,” but mea culpas are almost unheard of in the high reaches of the judicial branch, where respect for its infallibility is supposed to preserve trust in the courts. But of late we have seen judicial giants, reflecting on their careers, say that they had erred in some of the great cases of our time. They happen to have been Republican judges — that is, they were appointed by Republican presidents and as active judges had mainly followed the course expected of them. In the spring, Sandra Day O’Connor, the first woman justice of the U.S. Supreme Court, was talking about her 20 years on the court with editors of the Chicago Tribune, the unofficial organ of Midwestern Republicanism. About the court’s most far-reaching decision of our time, Bush v. Gore, in which it halted the Florida vote recount and essentially declared George W. Bush
the next president, O’Connor regretted casting the decisive vote. The court, she said, probERNEST ably should have DUMAS refused to accept the appeal: “We’re not going to take it. Goodbye.” But she and four other Republican justices voted to hear it and granted the request by Bush’s lawyers. It was not she but Antonin Scalia who wrote the brief order. Counting questionable ballots (remember those hanging chads?), Scalia said, “threaten[s] irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” The order gave Bush Florida and the presidency by one electoral vote while he lost the national popular vote by 550,000. O’Connor did not exactly embrace the dissenting opinion, penned by
ENDA past and future
A
s I was coming out to myself and to others nearly a quarter century ago, the most pressing gay rights issue was stopping employment discrimination on the basis of sexual orientation. All assumed that protecting gay and lesbian folks in the workplace would eventually be the first major national civil rights victory for a movement then entering the mainstream of political debate. Despite the fact that employment discrimination was then the gay rights issue for which there was the most support (support that has grown into near consensus in the years since), the issues of “gays in the military” and marriage equality fascinatingly leapfrogged it to move to the fore of the national debate on gay rights. While not the original plan, presenting gay and lesbian members of the armed service and same-sex couples and their families as the “faces” of the LGBT movement (along with LGBT folks coming out within families all across the country) reframed the entire gay rights debate in a manner with which many more Americans could relate. Yet, despite this effective reframing of gay and lesbian life in America and important victories on both ending “Don’t Ask,
Don’t Tell” and on the marriage front, employment discrimination for being LGBT remains entirely JAY legal in 33 states BARTH and remains a real source of workplace stress for thousands of LGBT Americans. We have returned to the past this year as LGBT groups such as Chad Griffin’s Human Rights Campaign focus energy on a renewed effort to pass a workplace antidiscrimination bill. The focus of their energy has been locking in the votes of red state Democrats and shifting the views of Republicans representing states that are increasingly progressive on LGBT issues. On Monday, they achieved their goal on both fronts in the U.S. Senate; following a key procedural vote on Monday, the Senate is poised to pass the Employment Non-Discrimination Act (ENDA) later this week. In 1996, the Senate came achingly close to passing a version of the bill. Then Vice President Al Gore sat in the Senate chamber prepared to break a tie vote in favor of the legislation. However, that tie vote was not to come
another straying Republican, John Paul Stevens, who said the decision would rattle “the Nation’s confidence in the judge as an impartial guardian of the rule of law.” But she was clearly troubled by her pivotal vote. Jeffrey Toobin in the New Yorker described it as a political journey for the justice. She had been the Republican leader of the Arizona Senate before President Reagan appointed her to the court, but she most admired the first President Bush — for her, the quintessential Republican president. So on election night 2000 she was avidly rooting for the son. It did not seem so imprudent to stop the recount and hand the job to the man she thought best suited for it. She soon retired so Bush could appoint her successor. She became deeply disillusioned with him on many counts, not least of which was his appointment of hard-right justices committed to perceived Republican causes that veered far from what she considered good conservative orthodoxy. She was publicly enraged by the majority’s Citizens United decision,
which allowed vast secret wealth to be pumped into elections. Then last week O’Connor appeared in robes again at the Supreme Court, this time to marry a gay couple from Washington. The symbolism of her change of heart was apparent, although as a justice O’Connor had never decided a question about gay marriage. But in 1986 she and her legal twin, Anthony Kennedy, had cast the deciding votes in Bowers v. Hardwick, where the court said states like Georgia and Arkansas did not violate the U.S. Constitution by criminalizing consensual homosexual acts. O’Connor’s symbolic act gave implicit but powerful blessing to the Supreme Court majority this spring in a California case that implied that state gay-marriage bans like Arkansas’s would be found unconstitutional once the right case arrived there. (Perhaps that will be Arkansas’s.) Last, and more to the point, was the comment in the latest book by Judge Richard A. Posner, senior judge of the U. S. Seventh Circuit Court of Appeals,
as the legislation failed 49 to 50. The missing vote, an announced vote in favor, was that of Arkansas Sen. David Pryor. Sen. Mark Pryor is deeply aware that his father missed that vote because he was in Little Rock awaiting the outcome of his son’s surgery for a cancer from which he fully recovered. On Monday, he joined a supermajority of other senators in advancing the legislation towards a final vote. The current version of ENDA is simultaneously better and worse than the 1996 version of the law that failed to pass the Senate (and a 2007 version that passed the House but died in the Senate). First, the legislation is decidedly more progressive in that it protects individuals not just on the basis of sexual orientation but also gender identity. After intense factionalism was created by Rep. Barney Frank’s decision to remove “gender identity” from the 2007 legislation, the LGBT movement clarified that no legislation would move forward without the inclusion of gender identity even if it slowed down passage. Because a disproportionate number of cases of discrimination impact those who are transgender, it’s a crucially important inclusion. On the other hand, the religious exemption in the current ENDA is decidedly broader than in earlier bills
(and based on deal-making to get the final votes to meet the key 60 vote Senate hurdle on Monday is likely to get even a bit broader). Unquestionably, religious institutions have a free exercise right to hire and fire employees closely tied to their mission. However, under the current ENDA proposal, a religiously affiliated university could legally fire a lesbian housekeeper or groundskeeper. It is an exemption much broader than those covering religious employers in federal laws tackling discrimination based on race, ethnicity, national origin, disability or sex. In short, it’s simply too broad and advocacy groups plan to focus their energy on recrafting the religious exemption in a more reasonable manner for the future. They have some time because ENDA will die in the House this year. The House leadership and the majority of the GOP caucus oppose the legislation and social conservative groups are telling Republicans who might waver that they will be punished in GOP primaries in the future if they support the legislation. However, along with open service in the military by gay and lesbian soldiers and marriage equality, ENDA will eventually become law. But for now it will likely be a coda rather than the prelude in America’s latest civil rights movement.
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