fairness (nondiscrimination) is fundamental.

16 Jun

Fairness is Fundamental
A sermon by the Rev. Dawn Cooley
Delivered at First Unitarian Church, Louisville, KY on June 16, 2013

Listen to

Thank you, Zoe, for telling us your story and sharing your perspective.  And thank you and the other members of the Red Pen, for realizing that there were stories that needed to be told by GLBTQ students at your school.

I am not sure how many of you may remember this, but in the Senior High Youth Service a few weeks ago, Zoe talked about about this congregation and how it has informed her way of thinking and being with people.  She also played a song that is hugely popular right now, by the artist Macklemore.  The song is called “Same Love” and in the song he talks openly about his support for gay marriage and equality, marking a breakthrough in mainstream hip-hop music.  The track was inspired by his gay uncles and gay godfather and is an issue that is personal to him and the other musicians he collaborated with – it is quite powerful.

And it is telling that a such a breakthrough song is so popular right now.  It speaks to the fact that 53% of Americans now support same-sex marriage.  With the Supreme Court poised to rule on the constitutionality of the Defense of Marriage Act (DOMA), it seems as though same-sex marriage will be the law of the land – it is just a matter of time.

Much like, years ago, it was just a matter of time that interracial marriage would be legalized.    This week celebrated the 46th anniversary of the 1967 Loving v. Virginia decision  handed down by the Supreme Court.  Richard Loving, a white man, married Mildred Jeter, a black woman, in 1958.  It was illegal for them to get married in the state of Virginia, so they crossed the border into Washington, DC.  However, when returning home they were arrested and charged with interracial marriage and “mixing races.”  These charges were punishable by 5 years in prison, but the Lovings pleaded guilty, received suspended sentences, and were ordered to leave the state.  Virginia was not for those lovers, apparently.   Before her death, Mildred Loving reflected on their Supreme Court case: “I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

Many comparisons are made between the gay rights movement and the civil rights movement of the 60s.  Before the Loving case was brought to the Supreme Court, there were decades of nonviolent protests, sit-ins, marches, and more – all demanding that people not be discriminated against due to the color of their skin.  Just last month, we celebrated the 50th anniversary of the passage of the accommodations law in Louisville.  Responding to increasing sit-ins and boycotts by black Louisvillians (mostly teenagers – youth will lead the way, as our banner in the Pride Parade asserted), Louisville became the first city south of the Mason-Dixon Line to pass legislation that required businesses to serve people no matter their race, their country of origin or their religion.

Next year, on July 2, we will celebrate the 50th anniversary of the passage of the federal Civil Rights Act.  This landmark piece of legislation outlawed major forms of discrimination against racial, ethnic, national and religious minorities, and women. It ended unequal application of voter registration requirements and ended legalized racial segregation in schools, at the workplace and by facilities that served the general public.

So three years before Loving v. Virginia passed the Supreme Court and legalized interracial marriage, federal nondiscrimination laws were passed.  In fact, in many ways, interracial marriage was hardly a blip on the Civil Rights radar at the time – there were much more urgent issues that needed to be addressed first.  EJ Graff points out that “for blacks and for women getting a law guaranteeing the right to work was central to achieving dignity. Until the Civil Rights Act of 1964, they were flatly denied equality on the job; their discrimination centered around the idea of them as people who couldn’t think or do well enough to stand side by side with white men.”

If we continue comparing the Gay Rights movement with the Civil Rights Movement of the 60s, then you might assume that the push for rights for GLBTQ people would follow a similar pattern: first nondiscrimination laws, then marriage laws.  And in fact, in 2011, the Center for American Progress reported that 9 out of 10 Americans believed that such federal nondiscrimination laws already existed.  74% Americans support such laws.  With this much support, it seems like protecting GLBTQ people from discrimination and harassment in their workplaces (at minimum) is a no brainer – so how startling is it that such a federal law does not exist. And in fact only 21 states and Washington, DC have passed laws prohibiting employment discrimination based on sexual orientation, and only 16 states and D.C. also prohibit discrimination based on gender identity.  In 2011, 19 states had NO non-discrimination laws protect GLBTQ people at all on their books.

So what is going on here? Almost 40 years ago, in 1974, two Representatives from New York introduced the Equality Act to the U.S. House of Representatives.  This act sought to ban discrimination against gay and lesbian individuals and unmarried people in housing, employment and public accommodations. The Equality Act marked the first-ever proposed national legislation that would end discrimination against gays and lesbians in the United States. It did not include transgender people.  Regardless, the Equality Act never made it out of committee and was never introduced in the Senate.

Fast-forward to 1994, the first year that ENDA was submitted – the Employment Non-Discrimination Act.  ENDA would have made it illegal to discriminate against employees based on a person’s actual or perceived sexual orientation.  It did not have the broader coverage of housing and public accommodations that the Equality Act did. Still, both the House and Senate versions of ENDA died in committee that year and then again in 1995.

In 1996, however, ENDA managed to make it to the floor for a vote in the Senate, only to  fail by a maddening one-vote margin.  Interestingly enough, that very same day, the House passed the Defense of Marriage Act, which defined marriage for federal purposes as being between one man and one woman.

After 1996 a version of ENDA was introduced in every session of Congress except one.

In 2007, the bill was changed to make it illegal to discriminate not just based on sexual orientation but also on gender identity.  But even as limited as it is, ENDA has never passed.  Earlier this year, a Representative from Colorado re-introduced an ENDA bill in the House (where it has 172 co-sponsors) and a Senator from Oregon introduced an ENDA bill in the Senate (where it has 48 co-sponsors.)  The Senate Committee on Health, Education, Labor and Pensions (HELP) will be holding a hearing on ENDA sometime in July 2013.

So it is strange, indeed, that even though most Americans assume there is, there is not actually any  federal non-discrimination legislation protecting GLBTQ people, and meanwhile the Supreme Court is currently deciding on the Defense of Marriage Act.  This means that even if the Supreme Court overturns DOMA in just a few days, and even if  all 50 states miraculously legalized same-sex marriage, it would still be perfectly legal in most states to fire someone for their sexual orientation, or even kick them out of a restaurant!  What is going on here?  Why are members and allies of the GLBTQ community pushing marriage rights, when we have not yet achieved basic nondiscrimination rights in the workplace, housing and public accommodations?

EJ Graff helps clarify what is going on, when she writes

“The symbolism behind marriage speaks to the defining feature of gay identity (same-sex love) in a way that workplace discrimination does not…it’s comparatively easy for most lesbians, bisexuals, and gay men to hide our sexual orientation…For us, the far more central denial of our dignity has been our exclusion from the social symbolism and law that have shaped our…family aspirations. Being denied recognition for our passions and our families has been at the heart…of our civil and social exclusion, and therefore our movement. Employment rights have been emotionally secondary to the LGB movement…in the way that the right to marry across races was secondary to the African American civil-rights movement. Being denied that freedom to marry across races lines was an insult, but not the central plank of oppression. But being treated as if none of my loves deserved recognition was absolutely at the core of my exclusion, at least as a lesbian, from full participation in my community.”

So the comparison between African American civil rights and rights for GLBTQ people seems to break down as the issues of marriage equality and non-discrimination laws seem to be reversed in priority.  But there is something very misleading in all of this – something that I did not realize until I had it pointed out to me: Every state that has passed civil marriage rights already had nondiscrimination laws on their books.  Every one.  Each state where same-sex marriage is now legal first made it illegal to discriminate against gays and lesbians in their places of work, housing and in public accommodations.  Fairness came first.

Interestingly enough, this all came to my attention with the recent passage of Kentucky HB 279, the so-called “Religious Freedom Restoration Act.”   This law states that “Government shall not burden a person’s or religious organization’s freedom of religion.”  There were many, many cries and much agitation from progressives against this act – the key point of the outrage is concern that this law might override the Fairness legislations in cities and towns that had already passed nondiscrimination laws – towns like Louisville, Lexington, Covington and Vicco. Conservatives argued that this would not happen, but a little bit of research shows that this is exactly why this type of legislation is being pushed in states around the country.

The Heritage Foundation, a conservative think-tank, has an entire article from 2011 on how they claim same-sex marriage constitutes a threat to so-called “religious freedom” and that nondiscrimination laws must be stopped before they are passed, or they must be maneuvered around, so that they don’t open the door to same-sex marriage.  The Heritage Foundation says that conflicts between same-sex marriage and “religious freedom” will often involve some type of previously adopted nondiscrimination law or policy, and that, as such, nondiscrimination laws can impose burdens on “religious freedom” even in jurisdictions that do not legally recognize same-sex unions as marriages.

I have never used air-quotes so much in a sermon before!  I am doing so now, because the “religious freedom” they are talking about is not at all what you and I think of when we talk about religious freedom.  Instead, they mean freedom from having to consider other peoples religious or secular positions.  This is a group that believes that if their fundamentalist Christian beliefs are not the general law of the land and are not being taught in the schools, then they are being religiously oppressed.  As such, they believe that same-sex marriage is a severe threat to their “religious freedom” and that lawmakers should revisit nondiscrimination laws to make sure that these laws adequately protect their fundamentalist ideas.  Never mind that no one would be forcing them to officiate or participate in same-sex marriages!

This particular branch of conservative fundamentalism pushes these “Religious Freedom Restoration Acts” in an effort to cut off the blood supply to nondiscrimination legislation, in the fear that it will open the door to same-sex marriage.

Currently, both Kentucky and Indiana  prohibit discrimination based on sexual orientation and gender identity in state employment, but neither state prohibits discrimination based on sexual orientation or gender identity in private employment, housing or public accommodations.  Many of the advocates of House Bill 279 think this meager protection is too far and that in the case of towns that have comprehensive Fairness legislation, it is way too far.  These folks must be particularly concerned, since a recent poll indicates that 83% of Kentuckians support Fairness legislation! And yet we still don’t have a statewide Fairness bill.

And so, bringing it to the level of this particular congregation: Comprehensive Fairness legislation, at federal and state level,  is absolutely fundamental.  We need to understand that until we pass broader nondiscrimination laws in Kentucky and Indiana that protect everyone from discrimination based on sexual orientation and gender identity in employment, housing, and public accommodations, we will almost certainly not be able to obtain civil marriage equality.  If we are advocating for marriage equality, but not advocating even harder for comprehensive Fairness legislation, then we have put the cart before the horse and need to turn ourselves around.

I love how this congregation has hung a banner outside for years that says that “Civil Marriage is a Civil Right” and I love how you asked me a number of years ago to stop signing marriage licenses for heterosexual couples until gay and lesbian couples had the same legal rights.  And I suspect that there are more than a few of us who thought, surely, this type of legislation was already in place.  But it is not.  In order to make sure we are building our house of equality on solid rock and not on shifting sand where it might collapse, we need to go back to the basics.

The US Senate Committee on Health, Education, Labor and Pensions will be holding a hearing on ENDA sometime next month. There are 22 Senators on the Committee, including Rand Paul from Kentucky.  Write them, call them, pester the heck out of them to let them know where you stand on the importance of getting ENDA before the Senate.  And then follow the bill and pester the rest of the Senators and Representatives so that this becomes the year ENDA finally passes.  ENDA is not enough – but we must start somewhere.

In Kentucky, a state-wide Fairness bill will be introduced, again, in the next legislative session.  Again, write, call, pester the heck out of your representatives and let’s get this bill passed!  In Indiana, I am not sure what the status is – there does not seem to be quite the push as there is in Kentucky, but that does not mean you can remain silent – just the opposite!

Regardless of which state you live in, let’s show the fundamentalists that what they fear is actually true: that nondiscrimination laws will indeed lead the way to marriage equality, but that this is not something that they need to fear.  Let’s show them that just as interracial marriage has not brought this country, or the institution of marriage, to its knees, neither will marriage equality for gay and lesbian couples.  As Macklemore reminds us,

“We press play
Don’t press pause
Progress, march on!”

Because it is the same love, and no one deserves to be discriminated against, bullied, hurt, fired, denied a job or housing or in anyway be oppressed because of their sexual orientation or gender identity.  Fairness, nondiscrimination, is where we must start.

One Response to “fairness (nondiscrimination) is fundamental.”

  1. Jo Ann June 16, 2013 at 4:27 pm #

    Excellent! Thank you so much!

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