Supreme Court Cases on LGBT Discrimination Reflect Wider Assault on Civil Rights

Janine Jackson: In early October, the Supreme Court took up three related cases involving the rights of LGBTQ people, deemed “significant,” “blockbuster” or “momentous” in the press. Well, what you got from corporate media coverage was a pretty finely grained analysis of the legal stances involved, of divisions among the Supreme Court justices, and of the timing of the ruling in the electoral season. What you really didn’t get, with a few exceptions, was a sense of what events meant for human beings, of the context of the Court’s ruling, not in arguments, but in lives.

Our next guest explored these questions in a recent article on Medium called “Swiss Cheese Civil Rights.” Dorothee Benz is a writer and organizer, and she joins us now in studio. Welcome to CounterSpin, Dorothee Benz.

Dorothee Benz: It’s great to be here. It’s a lifelong dream.

Well, all right. Against the backdrop of the Supreme Court hearing these very, very important arguments, and then that against the backdrop of just the country we’re living in at the moment, you pose the question, “In this environment, is a giant step forward for LGBTQ+ civil rights really possible in 2020?” And your response is, “Yes and no.” So what are you getting at there?

I think my main objective in this piece was to contextualize the Supreme Court case. So much of the analysis has been narrowly on what the legal argument is, whether the Civil Rights Act’s Title VII—which bans sex discrimination—applies to LGBTQ people, whether the justices are likely to agree with that, and all those kinds of things.

And those things are important, but they come in a context; they come in a context of an enormous assault on civil rights from the Trump administration and others, which in turn has fueled a rise in hate crimes and domestic terrorism, specifically white supremacist, domestic terrorism. They come in the context of this Orwellian idea of religious exemptions from civil rights laws that the right has been pursuing for decades.

So to put those things together, to put together what’s on the table narrowly, legally, but how does it connect to those larger trends in civil rights? And, you know, I did say, “Yes and no.” The “no” is weightier, in my opinion, than the “yes.”

“Swiss Cheese Civil Rights” kind of says it; are those civil rights at all? And you kind of pose it as, even if I am supposedly protected at my job, what happens if I then don’t have healthcare? And I guess the point is, that’s not how our lives are lived.

And so, from my perspective as a media critic, but just from anyone’s perspective, if we’re really asking, “Are queer people protected?” we don’t need to wait until spring to start answering that question.

No, absolutely. The queer people that they’re most thinking of here are the same people that they thought of in the marriage equality struggle, and by default, that’s white folks. By default, that’s people with middle-class jobs, and things like that.

But how are queer folks doing? How are their actual civil rights? Ask any trans woman of color who walks down the street every day, wondering if she’s going to be the next statistic.

But then, even more narrowly, like you alluded to this thing that I mentioned in the article, juxtaposing rights at work, and then a healthcare example, the religious exemption struggle has been—I think I already said this—has been the right’s premier strategy for undoing civil rights law for quite some time now.

And basically, they make the argument that they are being discriminated against if they can’t live their values, and their values are to discriminate against me, right? So it becomes this truly upside down world. And what they’ve done is, they’ve pushed that in judicial realms, they’ve pushed it in legislation, they’ve pushed it in policy. The Trump administration has embraced it wholeheartedly, and the courts have increasingly embraced it as well.

So you get things like the Masterpiece Cakeshop ruling, you get things like foster care laws that allow taxpayer-funded agencies to turn away queer kids and queer families, and you get things like the so-called Denial of Care Rule that HHS, the Department of Health and Human Services, is about to implement, announced in May, that says any healthcare provider can refuse treatment to any person if, you know, it bothers their conscience.

So, yeah, so I could leave my job that I’m protected at, get hit by a truck and then be denied lifesaving care on the side of the road, and hence the phrase “Swiss Cheese Civil Rights.”

I feel also that corporate media often back quietly away from religious beliefs or religious exemptions, and it’s part of their “Our enemies are right, we are godless, East Coast heathen who don’t understand the Heartland.” You know, it’s part of the elite media worldview, the way that people of faith are exotica.

And also, they’re only ever right-wing. I mean, if you’re the Ploughshares Seven, and your beliefs lead you to oppose nuclear weapons, well, you, no joke, can’t get arrested in mainstream media. But religious exemption somehow doesn’t get critical examination, I don’t think, in the corporate media, and I think partly it has to do with just a fog that they put around the idea of religion, generally.

No, that’s absolutely true. They adopt the rights language about religious liberty, and they sort of pose, “Is freedom of speech a more important right than your civil rights?” and stuff like that. But the whole thing is really quite preposterous, particularly for, I have to say, Christians. And I am a practicing Christian, as much as it pains me to say that in the current environment, so I know a little bit about this religion. And the idea that Jesus does not want me to bake a cake for a wedding, or Jesus would want me to turn away a trans person who needs healthcare—especially Jesus and healthcare; you know, Jesus is kind of famous for handing out free healthcare to all kinds of people, right? So I don’t know where that comes from, but it does a huge disservice, a huge disservice.

For some folks, concretely, on this issue, I think there is a sense that maybe we shouldn’t be looking to the Supreme Court. The upshot for many people is, “Let’s move it to Congress. We shouldn’t be looking to the Supreme Court, actually, for this at all.” What do you make of that?

In terms of getting anything out of Congress, you know, two words: Mitch McConnell. So that’s not a short-term solution of any sort. I mean, ideally things should be protected by statute, things are protected by the Constitution, and judicial interpretation should be just. I mean, those are three big ifs.

It is true that the surface argument in these cases hones to a judicial philosophy called textualism that is the darling of the right. Notably, Justice Scalia was a big textualist, and both Gorsuch and Kavanaugh are avowed textualists. And it’s very simple: It’s what is contained in the words and the structure of a statute and not, for instance, legislative intent. So the argument that LGBT people are covered under the “sex discrimination” bar on discrimination is very straightforward.

Will these Heritage Foundation–, Federalist Society–approved justices actually walk the talk and live their judicial philosophy, or will they cave in to the Christian right? We’ll find out in the spring.

But in the meantime, to circle back to your question, the judiciary as a whole, right now, is a scary lot. Donald Trump is nominating, and the Senate is approving, nominees to the federal judiciary at a literally record pace. And I know it’s Halloween season, but they’re a scary bunch.

Let me just ask about media, finally. When I was, years ago, looking at media coverage of affirmative action, there were lots of stories that were like, “Affirmative Action: Pro or Con?” and they would have arguments on either side.

And then there was one series in the Seattle Times that stood out, and it was called “Equality on the Job–Are We There Yet?” It just shifted the prism so that it wasn’t about arguments: “Huh—do these people deserve rights or do they not?”

I want to be clear that media are overwhelmingly editorially supportive of LGBTQ rights. The editorials will say that, absolutely. But it’s not so much a matter of an urgent question: People are suffering, how do we get justice for people?

It’s kind of like, “Let’s shake up the Magic Eight Ball of the Supreme Court. What’s it going to decide? Human rights for you? Oops, no human rights for you.”

I’m not sure what I’m asking of media, but it’s something different than just saying, “Yeah, some people are for, some people are against.” What are your final thoughts, in terms of media, but also in terms of how we all should be thinking about these cases?

Well, the law and judicial interpretation is only ever a part of what creates a just and free society, right? And that, I think, is part of what you’re getting at. The legal right to not be discriminated against because of your race, because of your sex, because of your sexual orientation or gender identity—those are huge, huge rights. And if the Supreme Court rolls back employment protections for LGBTQ people, that will be a huge setback. I mean, nothing is more essential than the right to be able to work, to go to work, to provide for your family; that affects people on a daily basis in a way, for instance, that marriage equality did not.

But you need look no further to your friends of color, to know that even if it’s protected in statute, doesn’t mean that it is lived in reality. So that is a piece of it.

So, yes, we need these rights protected in statute, we need them enforced by courts, we need them lived on the ground—and that’s a much tougher thing to achieve, unfortunately.

And I share your analysis of the media’s take, which, like much of the media’s take of anything that has to do with Washington, is a little bit of a sort of watching the circus, and measuring who’s ahead and who’s behind, and what the chances are, as opposed to, what this would mean for queer folks in real life.

Yeah, it’s kind of shadows on the cave wall. When they say, “It’s about culture wars,” I think, “Well, ‘culture wars,’ really? Like, you think the fact that you see RuPaul on TV really means that we’re in a state of equality?” I think there’s a real danger of mistaking the shadow for the reality there.

Absolutely.

We’ve been speaking with Dorothee Benz, writer and organizer. You can find her piece “Swiss Cheese Civil Rights” on Medium.com. Dorothee Benz, thank you so much for joining us this week on CounterSpin.

It’s great to be here.