Why LGBTQ Plaintiffs Should Have Reminded SCOTUS Justices About Jamaica

Oct 9, 2019

COMMENTARY

When lawyers were asking the Supreme Court this week to extend federal anti-discrimination protection to the LGBTQ community, I wish someone would have brought up Jamaica.

Long a homophobia hotbed, the Caribbean island was starting to look more LGBTQ tolerant in recent years. But last month Jamaica, or at least the beach resort city of Montego Bay, reminded us that homosexuality is still a crime in that country.

Montego Bay Mayor Homer Davis barred a local LGBTQ group from holding a gay pride event at the city’s cultural center. He cited Jamaica’s extant anti-homosexuality laws as one rationale. But not the only rationale. More remarkable was this argument from His Worship: because the cultural center was the site where colonial officials declared the abolition of slavery in 1838, a gay pride event would “disturb the sacredness and purpose of why that building is there.”

READ MORE: Homophobes of the Caribbean: Can Gays Change Hearts and Minds on the Islands?

Allow me to parrot Tom Hanks in “Philadelphia.” Mayor Davis is missing the point by a mile if he doesn’t think Jamaica’s anti-gay statutes are analogous to the anti-black dictates that kept African-Jamaicans enslaved for two centuries. Bigotry is bigotry, especially when it’s codified – and especially when it results in the appalling violence LGBTQ Jamaicans have experienced. I’ve interviewed several victims of those attacks, one who was blinded in one eye by a homophobic mob – none of whom ever went to jail.

The Montego Bay center’s “sacredness and purpose” may at its root be the emancipation of black Jamaicans. But the sacredness of that anti-discrimination purpose extends to the decriminalization of gay Jamaicans. By blocking them from honoring their contemporary cause, Davis is by extension dishonoring the historical cause of enslaved Jamaicans.

The U.S. Supreme Court will be guilty of something similar, I believe, if it blocks LGBTQ discrimination from inclusion in the 1964 Civil Rights Act.

By blocking gay Jamaicans from honoring their contemporary cause, Montego Bay is dishonoring the historical cause of enslaved Jamaicans. SCOTUS risks something similar.

This week the justices heard oral arguments in three cases that involve claims of employment prejudice against gay and transgender persons. At issue is the Civil Rights Act’s Title VII provision, which prohibits employers from discriminating against employees on the basis of gender, race, national origin or religion.

The defendants insist the 1964 law doesn’t include sexual orientation. Not surprisingly, the court’s four liberal members say that original, literal reading of the rights act betrays its inherent intent – which was to shield Americans from any kind of employer discrimination related to factors of birth or belief. As we know today, sexual orientation is biologically stamped on us at birth, something no amount of conversion therapy can change.

The five conservative justices tend to be not just more originalist in their reading of legislation but more sympathetic to conservative disapproval of gay rights. So just as unsurprisingly, most of them suggest that if LGBTQ advocates want anti-gay protections built into Title VII, Congress is the constitutionally proper body to do that, not SCOTUS.

HYPOCRITICAL LOGIC

The liberal faction appears constitutionally correct in these cases. Congress shouldn’t have to pass refresher civil rights legislation to satisfy the plaintiff demand. I agree we shouldn’t ask our judicial branch to legislate. But gay Americans are not seeking that here. They’re asking the judiciary to do what civics class says it does: interpret laws. The commonsense interpretation of this law is that LGBTQ protection fits the birth-and-belief criteria.

And that’s where the Montego Bay bluster could have come in handy this week.

LGBTQ supporters gather in front of the U.S. Supreme Court building this week.
Credit Manuel Balce Ceneta / AP

Consider that in 1964 it would be five years before gay rights even appeared on America’s cultural radar, with the 1969 Stonewall riots in New York. But 50 years after that event, it stretches credulity to think a U.S. employer wouldn’t realize that firing a man because he sleeps with a man is legally unacceptable.

It’s especially suspect now that gay marriage is legal in the U.S. Four years ago the Supreme Court issued a constitutional interpretation that state laws banning gay marriage violated the 14th Amendment, which was originally established to ensure citizenship for freed black slaves.

In its gay marriage ruling, SCOTUS essentially rebuked the hypocritical logic of anti-gay leaders like Mayor Davis in Montego Bay. Gay rights were even further from public consciousness in 1838 Jamaica. But the building where Jamaican slavery was renounced isn’t there to warn us about only certain kinds of discrimination. Nor is the 14th Amendment.

Nor is the 1964 Civil Rights Act.