Civil Rights in a Trump Era: Why Telescope Media Should Not Win In Minnesota

The latest battle line for LGBTQ rights in Minnesota is over wedding pictures and movies and it is

being fought between Telescope Media Group and the State Human Rights Department  Telescope is a business claiming a First Amendment free speech or free exercise of religion in its refusal to serve same-sex couples.  Telescope should lose because no business has a First Amendment right to discriminate against individuals.  Freedom of speech and religion grant you as an individual a right to believe what you want, but it does not give a business a right to discriminate.
Recently owners of the Telescope Media Group did an op-ed in the Star Tribune telling their story as a Christian-based business wanting to tell stories about traditional marriages between one man and one woman.  They claim that the Human Rights Department is forcing them to also promote  same-sex marriages, drawing an analogy to a government which would have told Alfred Hitchcock to make musicals and not suspense stories.  This analogy is inapt.  But to understand why, one needs to be clear about the structure of the First Amendment and civil rights law.
First remember that the First Amendment originally applied and only limited the federal government but over time it too now limits state and local governments.  What does this mean?  The First Amendment is a limit on the government–the government may not abridge or limit freedom of speech or religion.  Private individuals and businesses are free to do what they want.  If you choose in your private life–as too many people do–to only associate with those who think the same way as you or who hold the same beliefs as you–that is your right.  No government in the US can tell you who you can invite to your house or tell what books to read or websites to visit.  Conversely, private businesses can do what they want.  The First Amendment does not apply to Facebook, a private business.  It can censor whatever it wants and it is free to do so because it is a private business and the government cannot tell it what content to carry.  In addition, your private employer can fire you because  it does not endorse or support your political views.  Private schools and colleges can impose speech codes. Overall, we are free to think or believe  what we want, including in our artistic expression, and private entities have a similar right.
Second, until the passage of the 1964 Civil Rights Act private businesses were allowed to discriminate in whom they employed or served.  Yes the Fourteenth Amendment Equal Protection clause prohibited discrimination, but again it only applied to the government.  The 1964 Civil Rights Act made it illegal for businesses engaged in interstate commerce (the term actually used is “public accommodations” to discriminate in their employment and customer service policies.  The Act was upheld as constitutional by the US Supreme Court and its constitutionality validity is not in doubt.
Yet the 1964 Civil Rights Act has three important exemptions for our purposes here. First,  there is an artistic exemption.  By that, the law says that if in filming a movie about racial discrimination it wanted to employ white only actors it could do so. This is among a category of exemptions known as a bonifide occupational requirement.   Second, and closely related to BFOQs,  religious organizations receive an exemption too on some matters.  By that, the Catholic Church is allowed to stipulate that in the hiring of a priest he must be Roman Catholic and, for good or bad, he must be a he.  You cannot sue the Church for gender discrimination for refusing to hire a female priest.  Third, the original 1964 Act covers sex discrimination but not discrimination based on sexual preference or identity.  To this day the Act still does not cover this type of discrimination, even though the Minnesota Human Rights Act does prohibit this type of discrimination.
The Supreme Court’s 2015 Obergefell v. Hodges decision legalizing same-sex marriage addressed one form of discrimination which involved government action but it did not address other  issues of civil rights involving businesses.  Absent state laws otherwise prohibiting it, federal law still does not make it illegal to discriminate against members of the LGBTQ community in areas of housing, employment, or customer service.  Soon after Obergefell one saw a rash of “wedding cake” controversies, businesses claiming a religious exemption from having to bake wedding cakes for  same-sex couples.   It also encouraged states like North Carolina to pass bathroom laws targeted against transgender individuals. Telescope Media’s case is a variant of these cases, except adding to it an apparent  artistic creativity or perhaps freedom of association claim.  There are several flaws legally and even ethically with this claim.
Back in the 1980s the Minnesota Jaycees wanted to admit women to their organization in defiance of the national Jaycees which opposed it.  The State of Minnesota sided with the Minnesota chapter, invoking the State Human Rights Amendment which banned se discrimination.  The national Jaycees argued that forcing them to accept women would violate their right to freedom of association and expression.  In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme  Court rejected that claim and upheld the Minnesota Human Rights Law.  This case alone ought to settle the dispute here, but for Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000).  In Dale  a closely divided Supreme Court permitted the Scouts to ban gays from their organization by arguing that the Scouts had a protected expressive message against homosexuality that was core to the identity of their organization and that to then allow for a gay scout master would force it to endorse a message it did not support.  The logic of Dale is what is also behind Hobby Lobby and its refusal  to provide birth control coverage to women, and it is a similar logic behind Telescope Media’s arguments.
Some careful distinctions must be made.  There is a difference between artistic expression and conducting a business that serves the public.  Telescope Media is trying to hide its discrimination  behind the former.  If it wants to make bigoted anti-same sex marriage movies it may do so. No one can or should tell them they have to do that.  But if they are operating a business they do not have a right to refuse to serve someone based on their gender preference or orientation.  Allowing a private business to invoke religious or artistic expression as an exemption to anti-discrimination law is not about being politically correct, it is about promoting a fair and just society.  It is creating a level playing field for all.  Telescope Media’s arguments taken to their logical terminus allows them a free pass  to discriminate against serving mixed racial or mixed religious couples (Perhaps in their view Jesus  would have opposed a Catholic marrying a Jew).
Moreover, reliance on Dale is not good.  First, Dale is a much disputed legal precedent that some equate to the same anti-gay animus found in the 1986 Bowers v Hardwick decision which declared consensual adult same-sex sexual activity as not protected under a right to privacy.  That decision was repudiated and overtured in the 2003 Lawrence v. Texas.  Additionally, Dale seemed to blur the line between religious (churches or temples) and non-church entities. Many already think  that religious organizations are given too much freedom to discriminate in ways that violate the Establishment Clause.  Allowing Telescope Media to prevail opens up a bad precedent in simply letting any business to invoke a religious claim as a way around anti-discrimination law.  This is what the flaw in the Hobby Lobby decision was, and the viability of that precedent too is questionable.
The concern of course in a political and legal world defined by a Trump presidency Telescope Media might prevail.  It could but should not.  The current anti-discrimination law is well grounded and would not be easily dismantled or overturned.  But the fact that this is even entertained is a product an era that the Trump presidency may be ushering in. One where equal protection under the law are viewed is as political correctness and not as w hat is demanded in a society that respects fairness, justice, and  civility.   People legitimately voted for Trump for many reasons that should be respected.  But what one hopes is that it was not an endorsement for a return to bigoted behavior  where people felt like they can say the must hurtful things they wanted to one another, or that businesses can hide their prejudice by invoking claims of artistic or religious expression.

Why is Trump Afraid of Vaginas?

When Donald Trump was a little kid did a vagina spook him?  Did one fall out of tree and hit him on the head?  Did he trip and fall into one?  Or did one jump out of a dark alley with hedge clippers and seek to cut off his penis (because as Freud said, women have penis envy and therefore seek to emasculate men by castrating them in all types of ways)?   After observing Trump’s Monday debate performance against Hillary Clinton and now his lashing out against former Ms. Universe Alicia Machado, it appears that he is scared to death of vaginas and that he must have had a traumatic childhood experience with one.

There is no question Trump hates women.  They are pigs, slobs, and dogs a Clinton reminded us Monday when she recounted Trump’s adjectives about them.  He hates Rosie O’Donnell, Megyn Kelly, Carly Fiorina, Hillary Clinton, and now Alicia Macado.  If he cannot objectify and dominate them such as in beauty contests they are threats to his masculinity and therefore objects of ridicule.  After Clinton beat him in the first presidential debate on Monday Trump could have been gracious such as when Obama acknowledged in 2012 that Romney beat him in the first debate.

Instead, he got beaten by a girl, nothing is worse than that.  Thus, Trump blames everyone except himself.  The debate was unfair, the moderator unfair, the questions unfair, and he himself was a gentleman and did not go far enough in raising the question of Bill Clinton’s marital infidelity and a 20 year old story about Monica Lewinsky.  Insult Clinton’s vagina by waving another in her face.  Appeal to her insecurities and that of women across the country by claiming you are not good feminists or women because their husbands had affairs.  It was your vagina’s fault. And of course he lost because Ms. Machado is fat.  All perfectly good reasons to explain his debate performance.

The 2016 presidential debate was the first to have a gender dynamics where there was a woman featured as a presidential candidate.  It was Trump’s first one-on-one presidential debate with a woman.  Throughout the Republican primaries he out-testosteroned the other male candidates.  It was classic Freudian right down to the debate featuring discussion of his penis size.  Why he did not whip it and a ruler out like adolescent males do is beyond me, but he effectively did that, more or less declaring he was the best candidate to make America great again because he had the biggest penis.  But when it came to Fiorina he froze, criticized her face, or otherwise seemed tout his superiority because he had a penis and she did not.

But with Clinton on Monday it was the first time he had to directly confront a strong vagina on stage  He was eye-to-eye with a vagina and he blinked.   It was mano o mano–rather mano o vagina on stage–and he lost.  It was humiliating to his manhood, castrated in front of 84 million viewers.  So of course the only thing he could do was to call a former Ms. Universe fat.  Yes, that evened the score with Clinton and women everywhere.  For Trump, if you cannot dominate a vagina insult it instead.  Clinton’s finest moment on Monday was when she finally became comfortable with gender, laughing off Trump’s insult that she could be blamed for everything.  It was at that moment she won the debate, putting Trump down in the worst possible way by being a vagina that beat him.

The next battle for LGBT rights in Minnesota

Note:  This blog also appeared in Politics in Minnesota on September 21, 2015.

Kim Davis’s Kentucky grandstanding is not the last word when it comes to same-sex marriage.

While the issue of whether same-sex couples can marry is constitutionally over, looming on the horizon, including in Minnesota, are other battles regarding discrimination against lesbian, gay, bisexual and transgender individuals including questions about employment, public accommodation, and housing discrimination. What will be fascinating to watch is how the Minnesota Human Rights Act could be deployed in this next stage of the fight over the legal protections for same-sex couples.

First, consider what the U.S. Supreme Court actually ruled in Obergefell v. Hodges. The court held that state laws that banned same-sex marriage either by refusing to perform them or recognize their validity when performed in another state violated the Fourteenth Amendment’s Due Process clause.
Writing for the court, Supreme Court Justice Anthony Kennedy indicated that marriage is a fundamental right that had long been held to be protected for opposite-sex couples. In his opinion he gave several reasons for why this right should also apply to same-sex couples, or at least not be denied to them. While the opinion suggested some basis in the Equal Protection Clause, the core was a due process argument because it was arbitrary and capricious to recognize opposite-sex but not same-sex marriages. At no point did the court declare that members of the LGBT community or opposite sex couples were “suspect” classes in the way that people of color were, or that laws targeting these individuals deserved some form of heightened legal scrutiny.

Although the Obergefell decision is a victory for same-sex marriage, it fell far short of being a decision that was a comprehensive civil rights victory. By not grounding the decision firmly in the Equal Protection Clause, it left open issues about discrimination and possible religious defenses.
Specifically, could a person invoke religious objections in refusing to employ someone who is a member of the LGBT community or is in a same-sex marriage or relationship? Could a business establishment refuse to serve such individuals? Could a landlord refuse to rent to such individuals? None of this was answered by Obergefell.

The Kim Davis matter was easy – she was a public official sworn to uphold the Constitution and her duty was to perform marriages. Refusal to do this was illegal and the federal judge and Kentucky were more than accommodating to her. But rooting out state discrimination is different from private discrimination, and this is the next battle.

The 1964 Civil Rights Act along with the Fair Housing Act of 1968 addressed many of these issues across the nation. The former makes it illegal for private parties to refuse to hire, promote, or serve individuals based on their race, color, religion, and sex, among other reasons. The Fair Housing Act bans the discrimination against the same group of people when it comes to leasing of apartments and mortgage financing, but it also extends the protection to family status. Not included in either act is discrimination against same-sex couples and members of the LGBT community.

Despite Obergefell, left open is the question of whether private Minnesota businesses or private landlords could refuse to hire, serve or lease or sell apartments, condos, or homes to same-sex couples, whether married or not. Enter the Minnesota Human Rights Act.

The act (Minnesota Statutes 363A.02) makes it illegal in employment, housing and real property, public accommodations, public services, and education to discriminate because of race, color, creed, religion, national origin, sex, marital status, disability, status with regard to public assistance, sexual orientation, and age.

The MHRA declares as public policy that the state should be free from discrimination because “it threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.” This act is potentially a powerful piece of legislation yet its legacy has been underwhelming at best, and its usefulness against sexual orientation discrimination effectively null. For reasons that remain perplexing it was not invoked to challenge any LGBT discrimination in Minnesota, or at least there are no cases of notable record when it comes to its use.

In addition, the Minnesota courts have not done a very good job using the act to combat marital status discrimination. For example, in State v. French, 460 N.W.2d 2 (Minn. 1990), the Minnesota Supreme Court ruled that the act did not protect an unmarried opposite-sex couple when private landlords  refused to rent to them based on their religious views.

While an administrative law judge ruled that the refusal to rent to them was discrimination based on marital status, the court indicated that the MHRA did not intend to protect unmarried couples from housing discrimination on the basis of marital status. Moreover, the court also pointed to the protection of religion (conscience) in the Minnesota Constitution (Article I, Section 16) as well as the anti-fornication law (for unmarried couples), which was still on the books at the time, as the basis for its decision.

In effect, landlords could invoke religious objections and a state law banning sex among unmarried individuals as a defense to why they did not have to rent to an unmarried opposite sex couple, even if the MHRA had intended to bar discrimination based on marital status (which it did not).
French is a strange decision, serving as a potential impediment when it comes to LGBT and same-sex discrimination issues looming. Yes, the state anti-fornication statute is gone, but how does one deal with the state constitutional protection for religious conscience, where the Minnesota Supreme Court has said that this clause gives more protection for religious liberty than the First Amendment, and the French claim that MHRA does not protect unmarried couples? Interesting questions abound.

Assume a landlord on religious grounds refuses to rent to a same-sex married couple. Will the Minnesota Supreme Court use the MHRA to force the landlord to rent to them by arguing it is discrimination based on marital status or sexual orientation? Or, will the court side with the landlord by arguing it is religious discrimination or a violation of the Minnesota Constitution?

Similar questions could be asked about employers who refuse to hire or serve individuals in same-sex marriages. Would the court say there is no indication that the Legislature meant to protect same-sex couples when it banned marital status discrimination in the MHRA? All of these are possible arguments and outcomes.

It is only a matter of time before these issues are litigated. They are the next step in the battle to end discrimination against members of the LGBT community. It will be interesting to see how the Minnesota courts handle these questions.

The Lesson of Norwood Teague: How Not to Respond to Sexual Harassment Allegations

Norwood Teague’s alleged sexual improprieties and the way the University of Minnesota responded are textbook examples in the wrong way to handle complaints of sexual harassment. Unfortunately, this method–sweeping it under carpet–the  seems to be the norm both in academia and in the business world.  In many ways, it is not much different than the way the Catholic Church has handled sext abuse complaints against priests.
What Teague apparently did most recently that led to his resignation was legally wrong. Sending unwanted sexual messages, pictures, or propositions to those with whom you work is wrong and it is actionable as sexual harassment under federal civil rights law.  Doing the same to people with whom you do not work is not a  civil rights issue but nonetheless actionable under general harassment or criminal law in some cases, but that is not is what is at issue here.  Instead the question at work is simple: What did the employer known and when, and how did it respond.
Under federal law, if an employee (it does not matter what level, be it co-worker, supervisor, or CEO) sexually harasses another employee, employers generally not legally liable for the behavior of the employee if they take appropriate action.  Upon receiving a complaint proper action could be  dismissal of the accused employee, but it could also be other appropriate remedial action to address the matter.  What is appropriate depends on the factual circumstances.  What is not appropriate action is doing nothing, ignoring it, or sweeping it under the carpet.  Take appropriate action and courts will not hold employers liable as a rule.
Employers are generally responsible for the actions of their employees, especially if they knew about their bad behavior, or were negligent in not knowing about it.  Often what happens when it comes to sexual harassment is that employers simply pay a victim to remain quiet.  Instead of going to court to face legal charges publicly, employers settle out of court, asking the victim to keep silent and not discuss the issue.  Legal settlements make sense, but they often do not solve the problem.   Too often victims are compensated and hushed but the employer does nothing to punish the harasser or correct the problem.  Instead, the employer simply throws money at the victim but nothing changes to alter the hostile environment, creating a ticking bomb that will eventually go off again in the future.  Or, what sometimes happens is that the employer and the accused employee reach a private settlement, agreeing not to say anything about the charges, freeing up the latter to move on to another workplace where the problem may repeat itself.
The private settlement of sexual harassment disputes may make a lot of sense in each case, but collectively it does little if anything to solve the problem of sexual harassment and hostile environments.  Yes, maybe enough private settlements and pay outs may convince employers they need to change their culture, but equally likely they may come to view paying for sexual harassment as a cost of doing business and move on.  Similarly, the employee private dismissed learns what at the end of the day?  It is okay to harass?
If the Star Tribune news accounts are correct, the University of Minnesota and Virginia Commonwealth University paid out $300,000 to settle past claims against Teague.  Minnesota was on notice of his behavior, but what did it choose to do–pay out, hush up victims, and little else.  This creates real problems for the U since it was cognizant of Teague’s behavior but hushed it up (of course it does not help that he was the athletic director, seemingly protecting him because of the special status sports and athletes enjoy in many colleges and across society).  In some ways, only a small step of difference between what it did and the St Paul-Minneapolis Archdioceses knowing about abusive priests and instead of doing something, simply transferred them elsewhere.
There needs to be a better process.   Privately paying off victims or dismissing aggressors does little to solve the basic problem of sexual harassment.  Instead it often condones the practice but doing little to change institutional or individual behavior.  This is the real lesson of Norwood Teague story, how the way we are responding to sexual harassment is failing to reform institutions or individual behavior.

Sheryl Sandberg and Marissa Mayer: Class and the New Anti-Feminism

Perhaps just as the glass ceiling is being broken, women are yet again being blamed for their failure to succeed.  Or so it seems according to Sheryl Sandberg and  Marissa Mayer.
    Facebook COO Sheryl Sandberg’s book Lean In  is a NY Times bestseller. In it she contends that women fail to succeed because they lean back.   Specifically, they refuse to make their voice heard in business or make men take on equal shares of domestic tasks at home.  She recommends instead leaning in, speaking up, and simply asking for what one wants.  If only it were so easy.
    Sandberg’s book has been hailed by many as the new voice of feminism, advice from a smart successful, and rich woman who became one of the very few women to make it to the upper ranks of corporate America.  Yet her story is not that of a typical American woman.  It is the story of the  power and privilege of being born white and to the right parents.
    Sandberg is the daughter of privileged background.  Her father was an ophthalmologist, and her mother had a Ph.D.   Ms. Sandberg went to Harvard, secured her connections, and was successful in taking advantage of them.  No one denies she is smart, hardworking, and deserves all that she has earned.  But she got off to a start in life that only a few women–little alone men–enjoy, and is now in a position that few individuals are in now.  By the time she writes Lean In Sandberg has already succeeded, a billionaire and the head of a company.  It is a wonderful story and when she offers advice on how other women can succeed she seems to ignore the structural forces that many women still face.
    Conversely, Yahoo’s Marissa Meyer has taken a tough it out strategy when it comes to women.  She axed the work-from-home policy at Yahoo.   In an effort to revitalize the company she demanded everyone come to work.  Work-at-home policies have clearly helped women navigate child rearing and work.  But Meyer seems clueless about the problems working women face.  After she gave birth she remarked: “ Having a baby Is easier than I thought.”  Of  course it was.  She had a nursery built at work for her newborn and she did not have to worry about paying for child care.
    There is a reason why corporate America loves Sandberg’s book and Meyer–they take the heat off of them.  It is not the fault of corporate America that women are trapped by the glass ceiling or do not succeed.  It is because they fail to lean in.  It is not the fault of men for refusing to do their fair share of domestic work.  It is the fault of women for not asking.
    Sandberg and Meyer live in a reality different from most women.   They are not single divorced  moms living on a shoestring.  They did not grow up poor, Black, or Hispanic. They were not (as far as we know) victims of domestic abuse and they did drop out of college because they lacked money.  Their biographies are very different from most women.
    White women on average still earn approximately 77 cents on the dollar compared to men.  African-American women earn 64 cents, Hispanic 56 cents. Studies suggest that up to one-half of all women have faced sexual harassment at work, with about 95%+ of all sexual harassment victims being women.  In 2009 the median family income for a male-headed household was $48,000, for women it was $32,000.  Women of color again fare worse. Women  are more likely to be in poverty than men.  Women are far more likely to be victims of domestic abuse than men.  They come out economically worse after divorce than men (who generally come out economically better).   In college sports, universities continue to drag their feet in providing equal funding for women’s sports.
    Overall, 50 years after passage of the Equal Pay Act, nearly 50 years since the 1964 Civil Rights Act, and slightly more than 40 years after Title IX Education Amendments, women still significant  discrimination at work, home, and school.  This is the reality of the world most women live in, not the one that Sandberg and Meyer occupy.  But to listen to them it is the fault of women that they have not individually succeeded, ignoring the collective discrimination and barriers to success females continue to face.
    The feminism of Sandberg and Meyer is that of rich white women.  It is a view of the world  that forgets the experiences of most women, but it is mostly a view that is cloaked in class biases.  However, this would not be the first time individuals–male or female–have climbed to the top and forgot those  at the bottom.  It would also not be the first time those who have succeeded think that if they can do it why cannot the rest.  While no one doubts the accomplishments of Sandberg and Meyer, one  really needs to ask if they provide a guidance for success that most women can emulate.
.The point here is that neither Sandberg nor Meyer are typical of the average woman in America.  Their story is one of power and privilege.  They are rich enough now to have overcome the problems that most women face in their daily lives.