Words Not Frozen in Time

Yesterday, the Supreme Court ruled that firing someone based on their sexual orientation or gender identity is illegal, as is any such discrimination occurring in the workplace. Surprisingly, six of the nine justices supported the ruling — including Neil Gorsuch and John Roberts, whose views are typically conservative — and Justice Gorsuch wrote the majority opinion.

This ruling comes as a positive and much-needed sign amidst a long discouraging political climate, particularly the Trump administration’s pushback against transgender rights. While this case only applies to workplace discrimination, it does affirm LGBTQ rights, advancing them with this as precedent for the next case.

What I find fascinating about this case was how the court assessed the core question. The justices were asked to decide whether the Civil Rights Act of 1964 applies to gay and transgender people. Title VII of that law prohibits workplace discrimination for race, religion, national origin or sex. The court’s ruling says “sex,” as used in the law, does apply to gay and transgender workers.

Justice Gorsuch’s argument and logic make sense:

An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex… It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

Writing in dissent, Justice Samuel Alito argued that in 1964, when the law was passed,

Discrimination “because of sex” was not understood as having anything to do with discrimination because of sexual orientation or transgender status… Any such notion would have clashed in spectacular fashion with the societal norms of the day.”

I find this to be true, certainly his statement about the societal norms in 1964. It’s highly unlikely anyone in Congress was thinking of advancing gay or transgender rights when the bill was drafted and passed. If any were, they were prophetic.

What’s amazing is this ruling shows, once again, that language is not frozen in time. While its meaning may not literally change, the meaning adapts to the time. While virtually no one in 1964 thought Title VII encompassed sexual orientation or gender identity, Gorsuch’s logic is convincing: the language does apply.

Just as the words “all men are created equal” in the Declaration of Independence apply to all, even as the nation’s founders excluded slaves when writing those words arguing for independence from Britain.

The brilliance of this irony is that our words often mean more than we realize. With time and grace, we can live into them.

Move to repeal same-sex marriage in New Hampshire

Two New Hampshire legislators, David Bates and Leo Pepino, have each introduced a bill to repeal the legality of same-sex marriage in the state, barely a year after it became legal. HB 437 and HB 443 are now with the House Judiciary Committee, which has scheduled a public hearing on both for February 17.

Fortunately, it's easy to send an e-mail to the committee members, which I did, expressing my opinion and recommendation:

I write to oppose HB437 and HB443 and any other proposed legislation intended to repeal same-sex marriage in New Hampshire.

Homosexuality exists and is not a life-style choice. As such, gay and lesbian couples deserve the same freedom to marry as heterosexual couples. This is a moral right that is consistent with the ideals of our nation and state, as articulated in the Declaration of Independence and New Hampshire's own motto.

That society has not recognized same-sex marriage until now is no justification for maintaining an ancient and outdated tradition. After all, the same argument was made for preserving slavery and disenfranchised women. Society must continue to evolve, ever widening the circle of freedom and justice to include all people.

As a heterosexual who has been married for over 20 years, I don't see same-sex marriage as any threat to my marriage, nor to the institution of marriage.

I have been heartened that my children's generation regards sexual orientation like hair color: no big deal and certainly not the basis for bestowing society's rights and privileges. And I fervently hope that their legislators will exhibit the same enlightened view.

Senate joins House to repeal Don't Ask, Don't Tell

In what seemed an unlikely outcome until just days ago, the Senate this afternoon passed a repeal of the Don't Ask Don't Tell policy, restricting "known" gays and lesbians from serving in the military. As the House previously approved the change in policy, the legislation immediately goes to the President for quick signing and then implementation. Thankfully, 8 Republicans joined 57 Democrats to approve the bill, 65 to 31.

As expected, New Hampshire (NH) Senator Jeanne Shaheen (Democrat) voted in favor of repeal. Retiring NH Senator Judd Gregg was apparently absent or did not vote. Unfortunate, as this was an opportunity to end his Senate career on a high note, as I wrote in an e-mail to him, sent earlier in the day:

Senator Gregg,

I hope you will enhance your legacy as a Senator by voting to repeal "Don't Ask, Don't Tell" (DADT).

As you know, gays and lesbians are serving honorably—and dying—in our armed forces, defending the American principles of freedom and justice. Yet we don't provide them with the same freedom and justice, instead insisting that they keep their sexuality secret and live without the integrity of being who they are.

Defense Secretary Gates and Admiral Mullen support repeal of DADT. The Pentagon has thoughtfully studied repeal, and Secretary Gates has clearly stated that repeal will mean a considered transition to the new policy.

If DADT comes before the Senate before you retire, I hope you will cast a vote supporting our gay and lesbian service men and women. That's far more important to your legacy as a Senator, to being a compassionate human being, than following the Republican policy line.

Don't Ask, Don't Tell

Defense Secretary Robert Gates is recommending the repeal of the Clinton-era Don't Ask, Don't Tell policy restricting gays and lesbians who have come out from serving in the military. Read his statement to the Senate Armed Services Committee here.

Senator John McCain is opposing repeal, at least at this time, as noted in his opening statement at the same Senate committee hearing.

Frustrated by the Senator's position — perhaps a lightning rod for my impatience at the terribly slow progress in affirming gay and lesbian rights — I posted the following comment on Senator McCain's web site:

Senator McCain,

I am very disappointed by your position on "Don't Ask, Don't Tell."

You ask whether this is the appropriate time, whether repealing the current policy is premature.

I ask what the men and women of our armed forces are defending if not the rights of all of our citizens to fulfill their potentials — including those who are gay, lesbian, bisexual, and transgender.

Only over the recent span of my adult life have I seen this nation begin to recognize and affirm the rights of gays. I am thankful that my teenage children hold none of the biases and pejorative assumptions that were prevalent when I was their age.

I have faith that those in our services who have concerns will respond to the "better angels of our nature" with appropriate leadership and education.

Senator, I ask you to help provide that leadership and support Defense Secretary Gates' recommendation to repeal "Don't Ask, Don't Tell."