Lawmaker calls Supreme Court ruling ‘partial’ victory for LGBTQ

Rep. Daniel Hernandez, D-Tucson. PHOTO BY HOWARD FISCHER/CAPITOL MEDIA SERVICES

A new ruling Monday by the U.S. Supreme Court on gay rights is imposing new restrictions on Arizona employers that neither the state legislature nor state courts were willing to do.

The 6-3 decision by the high court effectively puts a provision into federal law that says people who contend they were fired the opportunity to sue under Title VII of the 1964 Civil Rights Act which bars employers from discriminating based on sex.

“Homosexuality and transgender status are inextricably bound up with sex,” the justices said.

The move follows decades of unsuccessful efforts by some legislators to add sexual orientation and gender identification to existing laws that now prohibit discrimination in public accommodation and employment.

In effect, Monday’s court ruling catches the rest of the state up to cities like Tucson, Phoenix, Tempe and Flagstaff whose anti-discrimination laws already cover sexual orientation. But the high court decision covers only employment discrimination.

Rep. Daniel Hernandez, D-Tucson, chair of the Arizona LGBTQ Caucus, called the ruling a significant — but only partial — victory. He said nothing in Monday’s ruling provides blanket legal protections he believes are necessary for gays.

In this file photo from Friday, Nov. 30, 2018, the justices of the U.S. Supreme Court gather for a formal group portrait to include new Associate Justice, top row, far right, at the Supreme Court Building in Washington, Friday, Nov. 30, 2018.  Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite, file)

“In Arizona, you can still be discriminated against in stores, restaurants and hotels,” he said. “You can still be denied housing.”

Hernandez told Capitol Media Services that was brought home last year when the Arizona Supreme Court ruled that Phoenix could not enforce its anti-discrimination ordinance, which covers sexual orientation, against the owners of a calligraphy firm who refused to design wedding invitations for same-sex couples saying it conflicted with their Christian beliefs.

On one hand, Hernandez said, it was a narrow ruling, with the justices applying it to only the specific facts in that case.

“But it laid out, essentially, a toolkit for those businesses that want to discriminate,” he said. That’s why Hernandez said there needs to be a statewide law to overturn that ruling.

“If you are a business that has an open-door policy, you can’t decide who you close the door on just because you disagree with them,” he said.

Hernandez has had no luck. In fact, House Speaker Rusty Bowers earlier this year even refused to assign his anti-discrimination proposal to a committee for a hearing, telling Capitol Media Services at the time he saw no reason to overturn that state Supreme Court ruling.

“I think that my right of freedom of religion and religious beliefs and expression is at least equal to anybody else’s,” he said.

What might happen next year could depend in part on business community backing. But the head of the Arizona Chamber of Commerce and Industry, while declaring his support for what the Supreme Court did on Monday, refused to commit to backing such a law.

“We’re going to be very sympathetic when we look at different laws to make sure we don’t have discriminatory treatment in our society,” said Glenn Hamer, the organization’s president and CEO. “We will certainly review any proposal of that sort.”

And then there’s Gov. Doug Ducey. As recently as last year, the governor said he did not support extending state anti-discrimination laws to protect people based on sexual orientation.

Ducey declined to comment on Monday’s Supreme Court ruling, with press aide Patrick Ptak saying the governor is reviewing it with his staff. But Ptak said his boss “remains opposed to discrimination in all its forms.”

That lack of any specific protections in Arizona law is significant.

Doug Ducey (Photo by Dillon Rosenblatt/Arizona Capitol Times)

In a 1994 ruling, the state Court of Appeals, pointed out that state lawmakers have never extended legal protections to individuals based on sexual orientation. And based on that, the judges ruled that Arizona employers are free to fire workers solely because they are gay.

Since that time there have been no new cases on the issue. And attorney Richard Langerman, who represented Jeffrey Blain in that case, told Capitol Media Services that had his case been tried as recently as last month, before Monday’s Supreme Court ruling, the results would have been the same and his client — and all others — would have no legal recourse in Arizona.

Blain, an employee of Golden State Container Inc. of Phoenix, claimed he was fired because he is a gay man with AIDS.

Maricopa County Superior Court Judge Norman Hall instructed the jury that they should rule in Blain’s favor if they determine that he was fired because he has AIDS.
That is based on provisions of the Arizona Civil Rights Act, which prohibits discrimination based on disability. A state attorney general’s opinion concluded that AIDS fits within the definition of handicapped.
The judge, however, said jurors should ignore the question of whether Blain was fired because he is gay. Hall concluded that, under Arizona law, employers are entitled to do that.
The jury ruled in favor of the company. That sent the case to the Court of Appeals.
Langerman told the appellate judges the verdict might have been different if the jury had considered whether his client’s sexual preference also was a factor. Judge Joseph Livermore, writing the unanimous appellate opinion, disagreed.
The judges said Arizona employers do not need a reason to fire workers.
What companies cannot do, however, is fire someone for a bad reason, like violating constitutional protections based on race, religion or sex. Bad reasons also include violations of public policy, such as firing a worker who refused to break the law.
The judges said they could find nothing in Arizona law that makes a discharge based on sexual orientation a violation of public policy.

Jan Brewer (Photo by Gage Skidmore)

Livermore noted that lawmakers in most states, including Arizona, have not enacted laws barring discrimination based on sexual preferences, the way they have when dealing with sex, race, religion and age. The judge also pointed out that Congress specifically has rejected an outright ban on discrimination against gays in the armed forces.
The lack of statewide action on the issue has created a patchwork of statutes, with Tucson, Phoenix, Tempe, Flagstaff, Sedona and Winslow banning discrimination in private employment. Some other Arizona communities offer more limited protection.

In some ways, Arizona’s business community is out ahead of Ducey and state lawmakers.

Many major Arizona employers already have policies prohibiting discrimination based on sexual orientation. And some of them in 2014 went on record in urging then-Gov. Jan Brewer to veto legislation which would have expanded the right of businesses to claim they are entitled to deny service to anyone, including gays, based on the owner’s “sincerely held” religious beliefs.

Brewer ended up killing the measure.

More recently, several business groups aligned themselves with Phoenix in a battle over whether the owners of a calligraphy firm who cited their religious beliefs could be forced to design wedding invitations for same-sex nuptials. In that case the Arizona Supreme Court sided with the business.