Gays as Targets for Intolerance

September 4, 2013

samesex marriageAfter the Supreme Court held DOMA’s definition of marriage unconstitutional (U.S. V. Windsor, 133 S. Ct. 2675), it appeared our nation was moving forward in acknowledging equal rights for the GBLT community.  However, after recent instances of discrimination in various parts of the country, the equality that appeared visible in the not-too-distant horizon may be a mirage.  One of the primary events arose in Louisiana.

Louisiana law enforcement officials continue to use an unconstitutional anti-sodomy law to target and arrest homosexual men.  The law (LSA-RS 14:89) was struck down as unconstitutional by the United States Supreme Court in Lawrence v. Texas (539 US 558), but the statute remains on the books.  Although the Sheriff’s Office later recanted, a spokesperson initially stated it will continue to be enforced.

What are the implications for this kind of illegal enforcement?  A simple search yields some interesting results.

In 2010, a New York police officer was entitled to qualified immunity where the officer had an objectively reasonable basis to believe the unconstitutional statute remained in effect.  See Amore v. Navarro, 624 F.3d 522.   As it turns out, the officer’s only source of legal information was an outdated, unannotated version of the Penal code.  The court would not require officers to conduct legal research.

On the other hand, persistent refusal to end enforcement of an unconstitutional statute will not be tolerated.  In Casale v. Kelly, the City of New York was fined for its “apathetic attitude” toward ending enforcement of an unconstitutional loitering statute (710 F. Supp.2d 347).

These results came from this simple nation-wide, plain-language search:

police continue to enforce unconstitutional statute

Search Type: Plain Language

Content: Overview

Jurisdiction: All State & Federal

Taxi Drivers

In New Mexico, Ron McCoy and partner Chris Bowers were sent to the back of an airport shuttle bus because the driver took issue with them holding hands.  The driver, identified as Mychael Jones, claimed he did not want women and children to view the gay couple’s “inappropriate behavior.”  Additionally, gay couples in Portland and Chicago had issues with cab drivers because of their sexual orientation.  A lesbian couple claimed that after holding hands and kissing their taxi driver directed anti-gay remarks towards them.  The driver then refused to drop them off at a safe location, instead leaving them by the side of the freeway.  Similarly, a gay couple in Chicago was ejected from a cab after sharing a kiss.        

While it appears that the battle for gay rights has taken a step forward in the courts, societal tolerance has taken a step in the wrong direction.  Some of the discriminatory incidents detailed above resulted in complaints being filed with the American Civil Liberties Union (ACLU). 

Additional Research

For more information on similar issues, the following searches may be run on Westlaw Next:

adv: SY,DI(discriminat! /p same-sex homosexual gay /5 couple)

Search Type: Boolean T&C

Content: Cases

Jurisdiction: All State & Federal

adv: “public transportation” bus shuttle taxi cab train /p discriminat! /p same-sex homosexual gay /5 couple (143)

Search Type: Boolean T&C

Content: News