The Supreme Court of the United States on June 15 expanded the civil rights law to include gay and transgender workers. How was that ruling reached?
What the court did was really just look at the plain text of Title VII of the 1964 Civil Rights Act that basically says there are five categories that an employer can’t discriminate against in providing employment, hiring, firing and retaining employees: race, color, religion, sex or national origin. They looked at the term sex and they came to the conclusion, which I agree with, is that if you are homosexual, if you are transgender and you are fired from a place of employment, that decision is based on sex. It’s a broad term. You don’t really need to look at the legislative history; you don’t really need to look at what the intent was because with the plain language, when someone is homosexual, sex is the factor that you are looking at. When someone is transsexual, you are looking at that prohibitive factor in an employment decision.
States and municipalities had already passed such protections prior to the SCOTUS ruling. Springfield law briefly protected sexual orientation and gender identity before voters repealed SOGI in 2015. What has changed in recent years?
There’s an old saying that the arc of the moral universe bends toward justice. Society does impact the court, and gay marriage is a perfect example. Fifty years ago I couldn’t see any court saying gay marriage is a constitutionally protected right, yet they did that in 2015. A lot of people in the court say we’re strict constructionists and we’re just going to look at what the drafters of the Constitution intended and they didn’t envision homosexuality or they didn’t envision same-sex marriage. But it’s a living and breathing document. If you look back to 2014 when we passed the ordinance, we didn’t have gay marriage, we do now. We didn’t have this decision, we do now. I think there’s a progression. Fifty years ago, African-Americans couldn’t marry white people. People are realizing that to be a just society built on laws you have to treat everybody equal.
Last fall you shared interest in bringing the SOGI ordinance back to council, but that didn’t come to fruition. What prevented that discussion?
Not really anything. Partly due to the fact that we’ve had remote meetings ever since the middle of March. I don’t think a Zoom meeting is probably the proper channel for that. There have been substantial changes since we passed that in 2014. There is some concern with the community that pushed that, they knew it was a divisive issue and maybe it is painful for the community to go through it again. To me, if something is right to do, if you get beat you don’t give up. You try again. The business community indicates that it’s a factor with some businesses coming to Missouri and to other states. It’s something that most people in the city of Springfield are supportive of. In 2015 it was only defeated by 850 votes.
What is the ability for businesses to challenge the ruling on the basis of religious objection?
There is a federal statute, the Religious Freedoms Restoration Act, which says anyone can contest certain federal rules and regulations based on a religious belief if it doesn’t significantly impact a strong governmental interest. The court said that religious freedoms weren’t brought up as a defense to these hiring practices. The court didn’t reach that issue. They said that is an issue that will be left for case-by-case review. In 1964, it was very controversial requiring a business to allow an African-American to come into a hotel or a diner. Today public policy, even if you could do it, no one would do it. It’s getting harder and harder to defend those positions. It’s a question of how long people will have to wait to be treated like full citizens and given the same rights that everybody else has. You do have people that make those decisions based on ignorance. You shouldn’t have to have these laws, but sometimes you have to make these laws to the lowest common denominator because those are the people that harbor those biases built on ignorance.
Prior to the SCOTUS ruling, did Springfield not protecting sexual orientation and gender identity from discrimination affect the city in recruiting businesses?
Those businesses that actually publicize the fact that they discriminate against someone because of their sexual orientation I think are fewer and fewer and the most fringe. Most businesses want to be seen as diverse and tolerant and accepting. There’s strength in diversity and it’s not only for a business but for a community as well. But this only deals with employment practices. This decision was just built on Title VII, which deals with employment practices and not public housing, accommodations or customers coming in to businesses.
Do you anticipate trying to address those additional accommodations in City Council?
I’m going to finish reading it. We’re going to talk to the city attorney. People will say why do this now if the federal government has it? The problem is it can always be changed. With the current makeup I doubt there is going to be a change. Most people in the city of Springfield if you ask them today whether gay, lesbian, transgender people should be treated the same everything else being equal, the vast majority of people would say yes. The vast majority of businesses would say yes.
Craig Hosmer can be reached at firstname.lastname@example.org.
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