Casting Aspersions: “Fasten your seat belts. It’s going to be a bumpy ride”
Everyone has been so focused on the impending disaster of yet another Trump candidate for the Supreme Court that a significant blow to LGBT rights and protections may be slipping under the radar. In “Janus v. American Federation of State, County and Municipal Employees” — known simply as “Janus,” a decision handed down in a 5 to 4 vote by the Supreme court on June 27, 2018 the court ruled that government workers who choose not to join a union do not have to pay their “proportionate share of the costs of collective bargaining…”
In other words, if you don’t want to join the union, you pay nothing. Although you still get the benefit of the union contract. This decision overrules the court’s own precedent, set in the 1977 decision Abood v. Detroit Board of Education in which the court ruled that while a non-member can’t be required to contribute to a union’s political activities, a non-member can be required to contribute to the cost of negotiating a contract from which he or she will benefit.
This latest decision by the Supreme Court is a frightening omen
First, we now see a frightening omen; the court’s new found willingness to re-visit prior decisions new members don’t like, rather than the long-standing custom of considering such decisions to be established and settled law, except in the most rare and egregious cases (Dred Scott and Japanese Internment being two such examples.) With a new Trump nominee soon to be on board, this bodes ill indeed for LGBT issues. The bulk of our present status and protections rest on Supreme Court decisions going back to Lawrence v. Texas.
A second aspect of this issue is that from the earliest days of our struggle, Unions have been close allies. Through collective bargaining, unions have pioneered domestic partner benefits, nondiscrimination clauses and transgender health care. As early as 1974, librarians in Seattle, and bus drivers in Ann Arbor secured protection against discrimination based on sexual orientation in their contracts. Union workers at an industrial laundry in New Jersey won the earliest known contract protections for “change of sex.”
In her dissent, Justice Kagan wrote “the majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled because it wanted to.” We are left to wonder and to fear what else it might want to do, simply because “it wants to.”
Is it possible that state and local governments may now deny same-sex couples their spousal benefits?
Here is a case that has attracted much less attention, but may be much more significant than labor unions or cake bakers. The Court refused to stop a lawsuit, which would allow state and local governments to deny people in same-sex marriages their spousal benefits, from moving forward in Texas state court. The Texas state government wanted to stop the city of Houston from extending public employees’ state spousal benefits to same-sex couples. Houston had asked the Supreme Court to stop Texas’s lawsuit, given the apparent constitutional violation in giving separate but unequal spousal benefits. In December, the Supreme Court decided it would not review a June 2017 decision by the Texas Supreme Court. Texas ruled that the landmark decision legalizing same-sex marriage does not fully address the right to marriage benefits. In other words, Texas to gays: you’re not equal after all. Live with it.
We can expect worse to come. In the immortal words of Betty Davis, “Fasten your seat belts. It’s going to be a bumpy ride.”
Toby Grace is Out In Jersey magazine’s Editor Emeritus.