Grow a Pair, Neil.

we the people t shirt

Yesterday, nine Supreme Court Justices heard arguments that will have a major effect on the lives of LGBTQ+ people, and our society in general, for probably a generation. Based on the arguments made in a surprisingly small amount of time far out of proportion to their import, these Justices are going to determine whether under Title VII of the Civil Rights Act of 1964, it is Constitutionally legal to fire a person simply because they are LGBTQ+.

Currently, almost half of the people questioned in a recent Reuters survey actually believe it is already illegal to do so. Further, “The poll indicates that most Americans do not think religious objections should be a reason to deny service to an LGBTQ person, whether in business (57%), healthcare (64%) or employment (62%).

The unfortunate reality is quite different. While the federal Equality Act, which would ban all such discrimination independent of any interpretations of Title VII, remains in a years-long state of Congressional limbo, only 21 states currently have enacted laws that provide full non-discrimination protection for LGBTQ+ individuals.

What that boils down to is this: there are currently some 11.3 million LGBTQ+ people living in the United States; about 8.5 million of them are currently part of the workforce. Roughly half of us live in states without non-discrimination protection. So in an odd twist, the Supreme Court has ruled that LGBTQ+ people have the right to marry as a matter of basic human dignity, but under current law, exercising that human dignity by getting married on Saturday can – and often does – result in our getting fired from our jobs, thrown out of our apartments, and/or denied service in commercial and retail settings, on the following Monday for having done so. Doesn’t sound very dignified to me.

It pains me to know that there is a substantial minority of people in this country who believe that a.) I am somehow a less important, second-class citizen of this country compared to them based solely on who I love; and b.) they have a Constitutional, and in many of their minds, a God-given right to discriminate against me by withholding the same civil rights that they enjoy as a matter of course.

These justices are set to decide whether my full equal rights as a citizen of this inherently secular, pluralistic republic will be protected; whether the rights afforded to all citizens by the 14th Amendment to the Constitution to equal protection under the law will be protected for me, too, or whether they won’t, merely on the basis of the gender of the person whom I love.

To be honest, it’s almost unthinkable that we even have to have such a debate. The entire dispute really originates in that a particular subset of a particular religious group believes that LGBTQ+ are sinners in the eyes of God, and that because of that particular religious belief, the federal government should ensconce their particular religious opinion into federal law. Their argument is that their group has the right not only to hold those beliefs, but that they have the right to a Constitutional exclusion that allows them to impose those particular religious-based beliefs onto our larger, secular society that its founders took great pains to prohibit any establishment or endorsement of any particular religious group.

To be clear, our country has offered tacit – and frankly, unconstitutional – privileged status to adherents of the Christian faith since its very beginning. As a nation, we have always played fast and loose with the actual words and clear meaning of our First Amendment position regarding religion, paying them lip service but always giving a wink and a nudge when applying them to Christianity and Christians. We Christians have enjoyed the privilege of a usually unspoken, sometimes explicit “Yes, but” stance in applying the concepts of non-establishment and especially non-endorsement of any religion on the part of the government. A large part of the current problem is that a particular subset of Christians is upset, seeing parts of their inappropriate privilege crumbling away as the country gradually lives more fully into the words of our founding texts. I suppose I could find a more diplomatic words of comfort to offer them in their time of perceived loss, but all I can come up with is tough shit. Literally millions of people, all of them citizens of this country fully equal to you, have suffered for far too long because the government has unconstitutionally permitted your particular sectarian religious beliefs to be imposed on all of society. It’s high time we came to our collective senses, and stopped allowing ourselves to be led around by you as you like, as if we’ve got a ring through our nose.

And yet… here we are, with these nine individuals hearing arguments and deliberating  whether I will, in fact, be treated as a full, equal citizen of this country, or whether the religious opinions of some members of society – somewhere between 25 and 30% of society, according to surveys – may legally make me a social, cultural, and Constitutional, less-than.

Reports from inside the chamber during those arguments say that based on the questioning by the Justices, the vote will end up being close, and that it may be decided by one swing vote made by a Justice who openly fretted about the “major social upheaval” that a decision favoring the LGBTQ+ individuals would supposedly have.

I’m sorry – actually, I’m not – but numerous surveys about this subject, including the one previously referred to all show that to a large extent, this is a cultural ship that has already sailed. It’s highly doubtful that a decision confirming full LGBTQ+ equality would cause anything resembling “major social upheaval.” To begin with, just look at some mathematical facts: Roughly 70% of the American public identifies as Christian of one sort or another. At the same time, as seen in the Reuters survey, almost that same percentage of the public favor LGBTQ+ non-discrimination law. This means that there is already a huge amount of overlap of the two groups “Christian” and “Supports LGBTQ+ Equality.” There would most assuredly be some social consternation, limited to those people who believe – just as previous generations believed regarding racial and gender discrimination – that they have a right to discriminate against other citizens because of their own particular religious beliefs.

And that gets us to the larger point, which is that this way of thinking about “social upheaval,” major, minor, or otherwise, is the fear of a coward, or the excuse of a scoundrel, or both. And social upheaval to whom? Why is there more concern for social upheaval that will be experienced by the oppressor in this case (and many similar previous battles), than the existing, massive social upheaval that the oppressed have been suffering all this time?

Even more important than the concern being misplaced is the reality that every single advance made in this country living more fully into the promises of its founding documents and principles has caused social upheaval, sometimes truly major social upheaval. It is inevitable. If avoiding social upheaval were a legitimate reason to not advance our society, nothing would ever improve.

It’s delusional to think that progress can be made without some kind of social upheaval. It’s disingenuous to use that as an excuse to deprive millions of people their Constitutionally-protected civil rights and equal protection under the law.

I speak as a married gay man, and as an ordained minister and pastor in the Presbyterian Church. The mere fact that that can even be possible caused no small amount of “social upheaval” in itself, and thanks be to God for it. I have come to believe that a large part of why God called me, a person whom God knew was gay long before I knew it myself, into pastoral ministry at all, was to be a witness – an illustration – to people inside and outside the church that God does indeed call and equip LGBTQ+ people into the church and its leadership. Another, even broader, part of that is to illustrate to people who don’t yet understand, possibly because they’ve never knowingly had a relationship with an LGBTQ+ person, that gay people – people like me – are really no different from them. At least, I’m no more different from them than they might be from another straight person, and maybe there are more significant differences between them and the other straight person than between them and me. In short, I believe a part of my divine call is merely to illustrate my equal humanity to others who don’t understand that. To show those who don’t yet quite understand that as an LGBTQ+ individual, I have the same dreams, fears, worries, aspirations, goals, loves, that they do. I laugh, I cry, I hurt, I mourn, I celebrate, I contemplate. I am your brother, your son, your father or uncle or cousin. I am your neighbor, your coworker, and yes, in my own case, your pastor. I have the same need as you to be a valued, respected, equal member of the society I was born into. I am not scary; I’m not something other. I am you.

But I have the same demands, too. I demand that the equal rights and equal protection under the law that I’ve been assured of based on my citizenship be protected and respected. I demand that the government not permit a particular minority within a particular sectarian religious group to have veto power over those rights, and my equality in our nonsectarian, secular, pluralistic republic. I’m not asking the government to grant these rights to me; I’m demanding that they protect these rights that I already have as a birthright, and that are being denied me. I demand that my government live into the principles ensconced in its founding documents, the same principles that are so widely given lip service to but so frequently ignored.

This one Supreme Court Justice who seems to be the swing vote in these cases was put in place by a conservative power block who frankly, expect him to be nothing more than a guaranteed knee-jerk vote to support their own political agenda. Now that he’s been appointed, he finds himself at a crossroads of history, about to make maybe the single most significant ruling by which history will judge him. I do not humbly ask for special consideration, favors, scraps from the table of full equality from him. I demand that he live into this historic moment; that he not serve as a lap dog to political partisans. I demand that he protect my rights, and my equal protection under the law, that all full citizens have. I demand that he understand that doing so will cause some social upheaval, and that it will be worth it. I demand that he not allow a sectarian minority to hold millions of citizens hostage to their chosen religious beliefs. I demand that he use his own brain, and heart, and that he grow a spine, and a pair of testicles to go along with it, and once and for all do the Constitutionally and morally right thing.

Shape the Future by knowing the Past

I have some advice, from a “later middle-aged” gay man to younger LGBTQ people.

eastwood gran torino

Yes, I know that opening makes me sound like a crotchety, “get off my lawn” old geezer – but really, hear me out.
My advice to you: know your history. Not just world history or American history, I’m talking about your history – our history. Know how we in the overall LGBTQ community  got to the place we are now – by no means having full legal equality, but being far ahead of where this country was just a decade ago, and unimaginable light years ahead of where we were even when I was growing up.
If possible, seek out your LGBTQ elders, in person, face-to-face, and hear their stories. You’ll very likely learn that many of those very ordinary, boring-looking people were actually radicals on the front lines of the gay equality movement, and have stories that will make you laugh and cry, and get excited, and outraged, and energized – and very proud to have gotten to know them.
Just as importantly, learn about the legal and political battles in cultural, civilian governmental, religious, and military strands of our society, that incrementally got us to where we are today. Just as you know the names of court cases such as Roe v. Wade, Brown v the Board of Education, Plessy v Ferguson and others – for God’s sake, I at least hope you know those – that shaped our society, also learn the names and details of the cases that have made particular advances in your own LGBTQ history.
In the wake of Donald Trump’s tweetstorm supposedly banning transgender people from military service, and since it appears that the White House is actually going to try to implement this policy, it’s especially to know our history as it pertains to members of the LGBTQ community serving in the military. Of course, like so many straight allies, you were undoubtedly appalled and angered by this further descent into madness on the part of the President, and you’d be fully justified to feel those emotions. But as you do, don’t just wallow in vague thoughts that this just isn’t right, or fair. Of course it isn’t. But also know based on already-established legal precedent, the justification that Donald Trump has used to justify his decision has already been determined to be illegal and unconstitutional; and when you hear people spouting off transphobic, homophobic nonsense about LGBTQ people in the service, be ready and able to point to court precedent that establishes that they’re wrong.
Here are some people and events you should know about. Much of what I offer here is taken from The Gay Revolution: The Story of the Struggle, by Lillian Faderman. I read through this book at least once a year as a reminder of where we’ve been, and I highly recommend it to you, too.
***
Know who sergeant Leonard Matlovich was. He was the very first member of the armed forces who had the courage to legally challenge the military ban on homosexuals – and not only to challenge them, but to win.
Matlovich was the model member of the Air Force, and a decorated veteran of Vietnam with an impeccable and honorable military record.
leonard matlovich - 1
Sergeant Leonard Matlovich
leonard matlovich - 2
Matlovich recovering from his wounds in Vietnam, holding his Purple Heart
In 1975, Matlovitch officially declared to his superior officer that he was a homosexual, which by government regulations made him, by definition, ineligible to serve in the military. In an attempt to challenge that ban, he requested that he not be discharged from the service, but rather, granted an exception to the rule based on his exemplary record – and the fact that the ban was, in his opinion, unconstitutional.
The Air Force discharged him, and Matlovich, with the assistance and guidance of the extremely important gay-rights pioneer Frank Kameny, sued. In Matlovich v. The United States Air Force, Judge Gerhard Gesell ruled on July 16, 1976 – my sixteenth birthday – that the Air Force policy was wrong-headed and needed to change. Matlovich was an outstanding, exemplary member of the armed forces, and absolute proof that being homosexual did not, by definition, make a person unable to serve. Despite that, however, Gesell found that the Air Force policy, while wrong-headed, was not unconstitutional.
leonard matlovich - 3
Sergeant Matlovich on the cover of TIME
Matlovich appealed the decision, and the U.S. Court of Appeals agreed with him. They found that there were sufficient grounds for the Air Force to reinstate him, using their “exceptions” clause, and sent the case back to Gesell for reevaluation. However, before the case came to trial, the Air Force tried to do an end run around what they saw was likely a losing battle, by removing the “exception” clause from the regulations. Judge Gesell, outraged by the Air Force’s double-dealing, ordered that Matlovich be immediately reinstated.
Instead of accepting the ruling, the Air Force offered Matlovich a large financial settlement, including back pay, reinstatement of his pension, and additional compensation. In financial straits after the protracted legal battle, Matlovich accepted the settlement. Also factoring into his decision was his suspicion that if he was reinstated to active duty, the Air Force would just find another technicality on which they could discharge him, and then he’d have gained nothing.
This was a major moment in LGBTQ history. This was the first time a military service person stood up for their rights, and the courts recognized that there was no legal nexus between being gay and not being able to serve, even to serve with distinction. This was the first time that the courts ruled in favor of an openly gay service person remaining in the armed forces.
This was 1978.
Know about Leonard Matlovich.
See also: The Gay Revolution: The Story of the Struggle, by Lillian Faderman, pp. 471-479.
leonard matlovich - tombstone
Leonard Matlovich’s tombstone. He died in 1988, a victim of the AIDS epidemic, and was buried with full military honors
***
Know who Vernon “Copy” Berg III was.
Vernon-E-Berg-3rd
Ensign Vernon E. Berg III
Following shortly after the Matlovich case, Copy Berg (the nickname came from people saying that in appearance, he was a xerox copy of his father, navy Commander Vernon Berg II) was discharged from the Navy in 1976 after an investigators uncovered evidence of his homosexuality. Berg challenged the discharge in civil court. Also heard by Judge Gerhard Gesell, the ruling in his case upheld his discharge, but warned the Navy that they were going to have to update their policies to be consistent with the latest scientific and sociological knowledge. It was strong enough language that Berg was encouraged to appeal the decision. In the appeal, the judges stated that “Broad allegations such as ‘Homosexuality is incompatible with military service’ or ‘a person with homosexual tendencies seriously impairs order, good discipline and morale,’ would no longer suffice.”
But rather than try to sharpen their rationale of why homosexuality was incompatible with military service – sensing that any new rationale would be quickly thrown out anyway – the Navy offered Berg another cash settlement. Berg took the settlement and an honorable discharge, and went on to become an artist and gay rights activist.
The Berg case was another nail in the coffin of the old, misguided, homophobic attitudes in the military. It put the Navy on notice that the old arguments were not going to be accepted any longer, and that they were going to have to get their house in order. LGBTQ individuals could indeed serve in the military without any adverse effect on morale or unit cohesion, and would not have any other negative effect on the military’s execution of its duties. It was also after this case that the military generally stopped giving LGBTQ individuals dishonorable discharges.
vernon e berg - artist
Copy Berg became a well-regarded artist. He died in 1999,
another victim of the AIDS epidemic
Know about Vernon “Copy” Berg.
See also The Gay Revolution: The Story of the Struggle by Lillian Faderman, pp. 479-484.
***
Know who Miriam Ben-Shalom is.
miriam ben-shalom

Miriam Ben-Shalom is the first openly lesbian service member to be reinstated by the U.S. Army after she was discharged in 1976 for being gay.

Ben-Shalom took the Army to court over the matter. In 1980 a judge with the U.S. District Court in Chicago ruled that her dismissal violated the First, Fifth and Ninth Amendments of the Constitution.

The judge in her trial particularly criticized the military for the fact that it had shown no nexus between being homosexual and being unfit for military service – a crucial point of law that has reverberations to this day.

The Army refused to honor the ruling. Instead of complying, they offered Ben-Shalom a cash settlement, similar to their actions with Matlovich and Berg – but this time, Ben-Shalom refused, demanding to be reinstated. A subsequent seven-year court battle ultimately forced her reinstatement. The former staff sergeant—one of only two female drill sergeants in the 84th Division of the U.S. Army Reserve—then returned to service until 1990.

After Ben-Shalom completed the time remaining on her enlistment that she’d been discharged from, she tried to reenlist, but the Army refused. In fact, before Ben-Shalom’s attempted reinlistment,  in order to prevent them having to accept people who had openly professed to be LGBTQ, the Army had reworded its regulations to prohibit not only those who were engaging in same-sex activity, but also those who had only stated that they were gay or lesbian. This set off a completely new set of lawsuits. Ben-Shalom won the first trial and the subsequent appeal, which ordered the Army to accept her reenlistment. But she eventually lost another appeal, and the Supreme Court refused to hear an appeal of that case. Even though she lost the reenlistment battle, she won the reinstatement battle, and actually served out that reinstatement.

Like Matlovich and Berg, Ben-Shalom went on to become a gay-rights activist. She was arrested after chaining herself to the fence in front of the White House, protesting “Don’t Ask, Don’t Tell.” Sadly, in recent times she has been involved in a controversy involving transgender individuals. Ben-Shalom self-identifies as a PERF (Penis Exclusionary Radical Feminist), who opposes transgender women being able to participate in gatherings intended exclusively for what she and other PERFs call “women born of women.” (if this sounds somewhat familiar, the television show “Transparent,” season 2 episode 9, “Man on the Land” dealt with this issue). This position resulted in her being stripped of the honor of Grand Marshal of the Milwaukee Pride Parade in 2016. Regardless of this controversy, Ben-Shalom remains an important person to know in LGBTQ history.

Know about Miriam Ben-Shalom:

https://en.wikipedia.org/wiki/Miriam_Ben-Shalom

See also The Gay Revolution: The Story of the Struggle, by Lillian Faderman, pp. 484-488.

 

***

Know who Colonel Margarethe Cammermeyer is. Cammermeyer was an outstanding army nurse and officer, a veteran of Vietnam.

margarethe cmmermeyer

Col. Margarethe “Grethe” Cammermeyer

In 1989 while being interviewed for top secret clearance, Cammermeyer had admitted that she was a lesbian – she didn’t want to lie, and wasn’t aware that in 1981, the Army had issued a new directive that called for the total exclusion of homosexuals in the military, without exception. In a subsequent hearing, her long and illustrious military career was acknowledged, but ultimately, rules were rules, and Cammermeyer was discharged.

She appealed in civil court, and in 1994, the court ruled in Cammermeyer’s favor – declaring the Army’s exclusionary regulation to be unconstitutional and stating that her record showed beyond any doubt that she was a model officer; that sexual orientation has absolutely nothing to do with whether a person could serve capably in the military – that the Army’s exclusionary regulation was based “solely on prejudice.” There was, judge Thomas Zilly wrote, no rational relationship or legal nexus between being homosexual and being able to serve; neither, her case illustrated, did one’s sexual orientation interfere with unit cohesion or a unit’s “ability to maintain readiness and combat effectiveness.” Zilly continued that there wasn’t and must never be a “military exemption” to the Constitution.” Simply put, members of all groups within society had the right to enjoy the same rights, and the military could not simply rule out an entire class of citizens from serving based on false claims and prejudice. The court ruled that Cammermeyer must be reinstated.

As had always been the case before, the Army appealed the ruling. But in 1995, the Ninth District Court of Appeals found in favor of Cammermeyer, upholding the lower court decision. Colonel Cammermeyer was reinstated, and served honorably until her retirement in 1997. Her story was told in the 1995 made-for-television movie “Serving in Silence,” in which Glen Close portrayed the Colonel.

Know about Col. Grethe Cammermeyer:

https://www.cammermeyer.com/

See also The Gay Revolution: The Story of the Struggle, by Lillian Faderman, pp. 488-494

***

 

Why is this history important? Because out of a combination of blind transphobia and ignorance, people are trying to ignore or erase this hard-fought history. These historical legal precedents have absolute parallel with the current attempts to throw transgender people out of the service. If and when the President’s tweets actually become official policy, they will be challenged in the courts immediately. And when they are, these precedents are going to be at the center of the arguments.

To summarize, the key legal principles that these earlier cases established are:

  • The military does not have a right to simply exclude any group of the American public from service by claiming that by virtue of being in that group, individuals are automatically incapable of performing their duties, without any actual evidence to support that claim. There must be a provable nexus between being part of said group and an inability to perform.
  • The military has never shown any credible nexus between being a member of the LGBTQ community and fitness, or lack thereof, for military service. in fact, members of the full spectrum of the LGBTQ community are proving, every day, that there is no such nexus at all. In fact, the military’s own research has decisively shown that there are no significant difficulties or expenses related to transgender individuals serving.

The courts will look at these rulings and others. They will also consider the situation where, with the repeal of “Don’t Ask, Don’t Tell,” members of the armed forces were told it was OK, even encouraged, to come out – and now, the current President is trying to pull the rug out from under them. That’s a breach of trust that I doubt any reasonable court would permit.

Still, these are strange times. It’s impossible to predict what the Supreme Court – and it will ultimately end up there – will decide. But if sanity and reason prevail, these precedents should assure that despite the fact that the current tenant of the White House wants to remove them, transgender members of the armed forces will likely remain right where they are – just as they should.

So know your history. And when this subject comes up in conversation, make sure others know about it, too. Now get off my lawn. 🙂