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E-144 - Sunday, October 13, 2019, presented by SYASLPartners
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RECENT AURAL PLEASURE:
LEGISLATIVE DIRECTORY UPDATES:
IN TODAY'S NOONER:
I'm not actually reading newspapers this morning, but rather only touching on last night's actions by the governor on legislation and the first of my "Supreme Court Watch Sunday" pieces. I'm trying to write on Saturday nights to free up my Sunday mornings for more personal time for such things as the Buddhist Church and farmers market. For those who read my letter on Friday and sent such kind supportive words, you understand why it is a particularly important step.
2019 LEGISLATIVE GOLDEN BEAR AWARDS: If you a Nooner email subscriber (not just Premium), you should have received an email call for nominations for The Nooner's 2019 Legislative Golden Bear awards. If you did not, send me an email. Two changes. The correct deadline is Friday, October 18 at pm. Secondly, there's an added category: "STATE AGENCY LEGISLATIVE REPRESENTATIVE," which can include a government affairs, communications, or another non-gubernatorially appointed agency professional--any of whom works regularly with the Legislature and known in the Capitol community. I would include eligible in the category representatives from the Department of Finance and Legislative Analyst's Office. So, feel free to add that onto your nominations list.
LEGISLATIVE UPDATE: Midnight tonight is the deadline for gubernatorial actions. Don't ask how I thought yesterday was October 13. Yes, the constitutional deadline is tomorrow (October 14 gavel + 30 days), but the intent is to have everything wrapped today. My apologies for anyone who got my message that it was midnight last night, with my brain confused after I had done the date changes for today's Nooner. We'll be looking at many of these actions in more detail over the next week. Things are a bit cray-cray here at Nooner Global HQ.
SUPREME COURT WATCH:
Last week: In an important case challenging a New York City ordinance, the Supreme Court sent New York State Rifle & Pistol Association Inc. v. City of New York, New York, agreed to be heard in January back to the district court upon motion by the city, which has subsequently changed its ordinance to better meet constitutional muster. There are three federal cases in California working their way through the process on open carry (Eastern District), ammunition clips, and assault-style weapons (two cases in the Southern District). With additional limitations on gun purchases and possession signed by Governor Gavin Newsom yesterday, it is fully expected that the Supreme Court of the United States will be speaking on the Second Amendment as updates in legal doctrine since Heller and McDonald in the next couple of years. I wrote about these on July 2 and again on August 31 on a new case out of Chicago.
Obviously, the biggest issues of the week were the three cases asking whether Title VII of the Civil Rights act prohibits employment discrimination against gays and lesbians (two cases) and transgendered individuals. From the oral arguments in the question of whether it applies to gays and lesbians in Bostock v. Clayton County, GA [audio | transcript] (combined with Altitude Express, Inc. v. Zarda) and in R.G. & G.R. Harris Funeral Homes v. EEOC pertaining to transgendered individuals [audio | transcript], it's very likely a 5-4 case either way, and may come down to Justice Gorsuch. This is th kind of case in which the proponents of LGBTQ rights really miss Sacramentan Justice Anthony Kennedy.
Let's look at this from a legal lens and not a Twitter political lens. The Supreme Court of the United States job in a statutory interpretation case is most simply to read the words Congress has given it, the basic legal concept that begins with "plain reading" that the law school kiddos are taught in intro week.
In the definitions clause of Title VII (employment) of the Civil Rights Act of 1964, 42 USC 2000e(k) provides:
"The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion."
Most simply put, plaintiffs in these cases argue that "because of sex" or "on the basis of sex" includes sexual orientation and identity. Defendants including a local government, skydiving company, and a funeral home argue that if Congress means that, then Congress must explicitly include it in the text of subsection (k).
In Bostock, the Eleventh Circuit answered that Title VII does not include sexual orientation, while in Altitude Express, the Second Circuit held that the language indeed does. In Harris, which is the funeral home case about whether a transgendered female is protected under Title VII from employment discrimination because of her status, the Sixth Circuit answered that indeed it is covered.
Personally, of course I believe the protections should be provided and they will continue to be so in California regardless of the Supreme Court's decision in these three cases. State laws exceeding the protections under the federal Title VII are allowable, as Congress has not pre-empted such action and states such as California have explicitly added protections. Oddly, that actually could hurt the plaintiffs' cases.
Let's look at California Civil Code § 51(b), a definitional provision of the state's Unruh Civil Rights Act:
"All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
California has repeatedly added layers to the Unruh Civil Rights Act to provide additional protections against discrimination in employment and housing above that provided under federal law. Most recently in 2015 in SB 600, "citizenship, primary language, or immigration status" were added to the list of which bases are unlawful to be considered in adverse actions against individuals.
Again, before people respond as often do, I'm looking only at the federal legal construction and I am proud of California's law including each of its additions--from disability to sexual orientation to citizenship. Just recently, I have worked on the ugly issue of landlords requiring applicants to bring a "Social Security card" when seeking to rent a property. That is illegal under California law because of that 2015 language (along with other legal cases). Undocumented Californians pay taxes using a federally granted "individual taxpayer identification number ("ITIN") that has the same format as an SSN but always start with a "9," which is used also used by agencies that track creditworthiness.
However, the legislative history of the inclusion of the word "sex" in 1964 well before the gay rights movement without further congressional actions to explicitly include protections on the basis of sexual orientation in a manner that California has done.
In a series of cases beginning in the 1950s, the Supreme Court of California has generally ruled that the list included in the Unruh Civil Rights Act should be considered illustrative rather than exhaustive. In cases relating to sexual orientation, state courts read that "sex" included orientation, reading the Legislature's intent to be broad protections for all Californias instead of narrow.
Nevertheless, California's Legislature decided that relying on a broad construction by the Supreme Court of California was legally tenuous and thus explicitly added "sexual orientation" I believe in 2005. (It's around midnight now and I'm not at the law library. I'll get back with a citation, but it was the era of leadership by Sheila Kuehl and Carole Migden, something we talked with John Laird about on the pod earlier this year.)
Defendants in the three cases on cases of gays and lesbians and transgendered individuals under the federal Civil Rights Act can point to California and essentially say "The Legislature of the state's largest state saw fit to add a seperate distinction of 'sexual orientation' to its employment and housing protections. If Congress wants to do the same thing nationally, they too must be explicit."
This great article in The New Yorker looks at the addition of "sex" in the federal law and it wasn't without controversy beyond what you would naturally think -- some civil rights groups didn't want women to "piggy-back" on the race protections that were at the time considered to be the cornerstone of the Act. In short, nobody in 1964 -- a few years before the 1969 "birth" of the "gay rights" movement -- was thinking about federal protections on the basis of sexual orientation.
My very first class after transferring to UC Davis was Politics of Gay Rights with Gary Segura, who we won't forgive for going on to Stanford and on to his current role as dean of the Luskin School of Public Affairs at UCLA. Several people around the Capitol were in that classroom in that inaugural offering of the subject. Segura opened the class by saying how he convinced his faculty peers that the class was needed and would fill up and boy did it. For both liberal and conservative friends to this day, the class is cited as one of their favorites in college. Segura also told the class that he was teaching it because "Well, I'm queer as a three-dollar bill." Not everyone in and out of the classroom knew that at the time i when it was still often taboo--even at a campus of the University of California.
I bring that up because our readings about "gay rights" were around gays and lesbians. Often, the readings were about the tensions between the two groups, something that was included in the great Randy Schilts book "The Mayor of Castro Street" (on The Nooner Sofa Degree list) which was made into the Dustin Lance Black film "Milk," which Sean Penn won the Oscar for portraying Harvey Milk. (Movie is available on Netflix and for $3.99 on most of the other streaming services.) In the book and movie, the story of the reception of political consultant Anne Kronenberg was not exactly warm in the camera shop on Castro Street to run Harvey's campaign--she was a lesbian in a world of gay men. That's how lots of the politics within the community has been, first between gays and lesbians, then on the addition of bisexuals, transgendered and other identities.
In many cases groups felt that adding others diluted the focus on their message and muddied the waters as additional recognitions and protections were sought. It's the same issue as when women sought to be included in the Civil Rights Act protections on the basis of race.
Penn's Oscar speech goes down among one of the more memorable ones, self-deprecating, funny, and of course political. Black's gave a similarly memorable speech upon winning the Oscar for best original screenplay for the movie directed by Gus Van Sant. There were protestors outside of the Oscars that night because "Milk" was up for awards--in 2009, a few months after Proposition 8 banning same-sex marriage was adopted by California voters in an embarrassing moment at the same election they resoundingly cast ballots for Electoral College votes for Barack Obama.
By the way, Black is an alumnus of Pasadena City College and I had the great honor of presenting him a statewide Distinguished Alumnus Award to while I was President/CEO of the League. He had been picked by students of the college to be their commencement speaker, a decision that was overridden by the district's elected board of trustees because it would create too much controversy as a "sex tape" was released by a former lover. We were damn proud of his work as a former community college student and thus gave him the award (I think in 2012), essentially apologizing for the actions by the boards of one of her colleges. Pasadena made up to him and he spoke at the 2014 commencement--the last year of my community college work.
As recently as Thursday night, tensions within the LGBTQ+ community were evident on the CNN Democratic presidential town halls on the issues facing the community. The first to be interrupted was Mayor Pete Buttigieg by activists arguing "Black Trans Lives Matter," conflating his issues of a police shooting in South Bend with his identity. The same tensions were evident later (I don't remember which of the six candidates but only that it was Don Lemon was moderating). A black trans woman took the microphone from a Latinx trans woman to make a point that a question hadn't yet been asked by a black trans woman (obviously, questioners were selected in advance). It was a very awkward for Lemon, the gay CNN evening anchor. We talked about this also on Friday's pod.
I go through this history of that class in 1994, the addition to sexual orientation to the explicit protections under California's Unruh Civil Rights Act, Proposition 8 in 2008, the 2009 "controversy" at the Oscars, the Pasadena City College and the League's award, Windsor (2013), Obergfell (2015), and last Thursday's CNN town halls to show how much things have changed in 25 years--the same number of years I've been in this town.
What hasn't changed? Federal statute. Congress has not followed societal and legal expansion of protections. Prohibiting same-sex marriage now seems as antiquated as limiting by race who can sit at a lunch counter. But, Windsor and Obergfell were 5-4 decisions and that was a reach by finding equal protections since one state had opened up the "can of worms" by providing a portable civil right (marriage), creating an obligation of other states to observe the contract. (For proponents of marriage rights, Gavin indeed deserves bigly credit for the momentum through his actions as San Francisco mayor, even if it might have been legally tenuous.)
I'm not blaming Mitch McConnell. In 2009, Democrats had control of all three branches and, until Ted Kennedy died, a filibuster-proof majority. They could have amended Title VII then but did not. Remember, Barack Obama wasn't publicly comfortable with same-sex marriage before the 2012 election and it was national headlines when Joe Biden got out ahead of his boss in an appearance on Meet the Press. On Thursday's CNN town hall, Biden said "truthfully" that Obama gave him a kiss on the cheek following his blunder getting out ahead.
The nation may not have been ready then. It could have cost Obama the election, analysts thought.
Just think of that. I know for the youngest of the Nooner readers this series of events seems like ancient history, yet for my peers who've been around, it seems like yesterday. A lot has changed in American culture in the area of LGBTQ+ rights. However, Congress has not changed the law and thus we have a circuit split before the Supreme Court that will likely be decided 5-4. I don't know which way, nor do most of the legal minds I regularly read on the Court.
Sure, things would be different if Hillary had won, if Mitch McConnell would have allowed a hearing Obama's nomination of Judge Merrick Garland to fill the seat after Antonin Scalia, or had Anthony Kennedy not retired. But, it is what it is. There are nine justices, a vague statute and legal history, and a split among circuits showing that it's anything but definitive.
People like to decry courts for "making law." I don't always like activist courts. But sometimes our elected officials don't address issues and courts step in front and do so for them. When was I thinking about that recently? Oh, yes, Dynamex. You may be pissed one way or another about the outcome with AB 5 and AB 171, and my frustrations have been clear and we know it will be back on the table next year, but essentially it's because of legislative inaction. With the evolution of the economy and the administrative expansion of independent contractor since Borello in 1989, those with passionate feelings on it could have tackled the necessary rewrite of the Labor Code.
That didn't happen and instead we're left with a product of legislative sausage-making that few people are completely happy with. Why? Legislative inaction for decades, a very specific interpretation by the Supreme Court of California, and then mostly a series of exemptions to that interpretation.
One side will be unhappy with the eventual ruling of the Supreme Court of the United States in last week's cases of protections for LGBTQ+ individuals under the Civil Rights Act of 1964, don't blame the members of the majority of the nine donning black robes to sit at that bench--the lack of leadership by Barack Obama and Nancy Pelosi to make a serious effort to change the statute in 2009 is equally to blame. I need not tell you how much I look up to those two, but if you can't call out your "friends," then you are simply someone who buys Kool-Aid by the case.
I've tried to add citations for items mentioned above, but f you have questions on any assertions, never hesitate to ask!
As a final aside on topic, if you are a SCOTUS fan and haven't seen the "On the Basis of Sex" movie about Ruth Bader Ginsburg's path to the nation's highest court, it looks like it's $5.99 on most of the streaming services and worth a watch. The documentary RBG, also great, appears to be $2.99. I don't just write that because I'm down with The Notorious RBG, I'll watch any such movie about a SCOTUS justice!
Oh, as a final, final aside on this topic...if you have gotten this far, you are officially a constitutional law geek. On December 9 at 7pm, we are doing a live podcast recording at Capital Books on Kay Street with UC Davis Law professor Carlton F.W. Larson, a constitutional law expert to talk about the above, guns, immigration, abortion, and well perhaps impeachment, which relates to his new book. We should have an RSVP form tomorrow and, while free, the store will be closed for the event and we can only accommodate 25. If you're reading this today and want a seat before we start filling them up, email me today at email@example.com and I'll confirm that you are on the list.
This week: As tomorrow is Columbus Day, there are no oral arguments. On Tuesday, the Court will hear arguments in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC. and four related cases in a combined argument, about the appointment clause of the Constitution and whether or not the one appointment by the President to the board established by Congress to oversee financial recovery for Puerto Rico (pre-hurricane) are constitutional officers as presidential appointments requiring Senate confirmation or rather inferior officers and, whether if constitutional officer, are the board's actions taken without such confirmation invalid.
If you like this extra, original work beyond just headline summaries and the like, I hope you support The Nooner with a full Nooner Premium subscription or one-time support. It's just no longer possible at the current rate of only 741 of the 8181 active distinct readers paying. Whether or not you were looking for this level of write-up and the California connections, I don't think you'll find it elsewhere. To continue The Nooner, I must double the number of paid subscribers, and that's no Cory Booker end-of-quarter "sky is falling" threat.
CAKEDAY and CLASSIFIEDS after we pay some bills...
CAKEDAY: Happy birthday to Lucy Camarillo, Corin Choppin, Milena Paez, Tianne Tran, and of course my dear friend Glenda Corcoran! It seems like just yesterday when the Sacramento suits invaded Ferndale for your wedding with Dustin. Thank goodness Guy Fieri wasn't in his hometown as he would not have approved of ties.