Recently, the Justice Department filed an amicus brief in a lawsuit brought by a now-deceased gay skydiver. Donald Zarda sued his former employer, Altitude Express, Inc., alleging that the company discriminated against him because of his sexual orientation.
Legal experts are divided on the case. The Justice Department has taken the approach that the lawsuit should be thrown out because there is currently no statute explicitly protecting LGBTQ people from discrimination. But others, including the Equal Employment Opportunity Commission, argue that LGBTQ people should be protected from discrimination by prohibitions on sex-based discrimination found in Title VII of the Civil Rights Act.
Amid this ongoing battle, Gregory Angelo, president of the Log Cabin Republicans, says that the best way to provide clarity in instances where people are discriminated against based on their sexual orientation or gender identity is by passing a federal law.
“Regardless of any sort of amicus brief filed by the DOJ one way or another, courts remain divided on this issue,” says Angelo.
“The recent emergence of court opinions indicating that both sexual orientation and gender identity discrimination might be viewed through the prism of sex discrimination is something that’s worthy of consideration,” he adds. “But the cleanest, clearest, and best way to achieve full LGBT equality nationwide is passage of federal legislation. And if you actually read between the lines of the DOJ brief filed earlier this week, you see indications that that’s the direction that the Justice Department seems to be encouraging LGBT advocates to pursue.”
Angelo also says that the DOJ’s actions should serve as a “clarion call” to Republicans and Democrats to move forward with legislation that acknowledges LGBTQ equality and balances protections with respect for those with religious objections to homosexuality or same-sex marriage.
Of course, such legislation will require some compromise. Republicans must realize that now is their chance to advance LGBTQ rights from a center-right perspective, via legislation that strikes a balance between equality concerns and religious liberty. Meanwhile, Democrats must come to the negotiating table with Republicans to craft such a bill, and recognize that the political landscape is not favorable to their preferred approach of amending Title VII to include such protections.
“I think there should be a legislative vehicle to address LGBT nondiscrimination separate from the Civil Rights Act,” Angelo says. “That’s been the position Log Cabin Republicans has taken ever since the Equality Act was introduced. That’s because there are other individuals and organizations who are not inclined to open the Civil Rights Act up to amendment, who, in some cases, fall on the Democratic side of the aisle.
“Thus far, going back decades, the strategy for LGBT nondiscrimination legislation was always its own vehicle, and included legislative points exclusively germane to LGBT equality.”
Recently, U.S. Rep. Scott Taylor (R-Va.) spoke out against the DOJ’s amicus brief, saying that “the notion that it is okay for LGBTQ individuals to be discriminated against, or that these protections cannot coexist with religious protections is shortsighted and on the wrong side of history.” Nonetheless, Angelo says, it may be difficult to get Republicans to embrace the EEOC’s contention that discrimination against LGBTQ people is inherently a form of “sex discrimination.”
“I think it’s fair to say that most Republicans have a healthy suspicion of the courts, and are dubious of the courts issuing rulings on matters that can be as divisive as social issues can be,’ he says. “So while I would absolutely encourage diversity of thought on this issue…I feel ultimately that most Republicans would be inclined to go the legislative route, as opposed to letting the courts adjudicate this issue.”
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