Social Equity and LGBTQ Rights

Dismantling Discrimination and Expanding Civil Rights

Lorenda A. Naylor

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781351213486
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Public Affairs & Administration
• Index: Politics & International Relations

Can a baker refuse to make a wedding cake for a gay couple? Despite the U.S. Supreme Court decision guaranteeing marriage equality in 2015, lesbian, gay, bisexual, transgender, and queer (LGBTQ) citizens in the United States continue to be discriminated against in fundamental areas that others take for granted as a legal right. Using social equity theory and intersectionality but written in an accessible style, this book demonstrates some of the ways in which LGBTQ citizens have been marginalized for their identity and argues that the field of public administration has a unique responsibility to prioritize social equity. Categories utilized by the U.S. Census Bureau (male or female, heterosexual or homosexual), for example, must shift to a continuum to accurately capture demographic characteristics and citizen behavior. Evidenced-based outcomes and disparities between cisgender and heterosexual and LGBTQ populations are carefully delineated to provide a legal rationale for a compelling governmental interest, and policy recommendations are provided – including overdue federal legislation to prohibit discrimination based on sexual orientation and gender identity.

Chapter 1

Social Equity and Public Administration

Introduction

Can a baker refuse to make a wedding cake for a gay couple? According to the U.S. Supreme Court, the answer is yes, as long as the cake is custom-made. In 2012, a same-sex couple named Charlie Craig and David Mullins decided to order a customized cake for their wedding. They wanted to place an order at Masterpiece Cake located in Lakewood, Colorado. The baker, Jack Phillips, a devout Christian, refused to create a cake for the couple citing religious beliefs. He did not want to use his artistic skills to create a cake that went against his religious beliefs. Phillips did offer to sell the couple other bakery items in his store. The couple filed a charge with the Colorado Civil Rights Commission under the state law, the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation in a place of business. After the commission issued a finding of probable cause, the couple filed a complaint with the Office of Administrative Courts. The administrative law judge ruled in favor of the couple. Masterpiece Cake appealed the case and the Colorado Court of Appeals affirmed the commission’s ruling. The legal question before the U.S. Supreme Court was, Does the application of a state law forcing a cake maker to design a cake that contradicts his religious beliefs on same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment? In a 7–2 decision, the U.S. Supreme Court ruled the baker’s artistic skills were an expression of free speech and to create the cake violated the baker’s religious beliefs under the First Amendment (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 2018). Under the Constitution’s free exercise clause, Phillips had a right to neutral treatment and consideration by the state commission. The court made the ruling based on religious animus. Justice Kennedy wrote the majority opinion, stating that the commission showed elements of a

clear and impermissible hostility toward the sincere religious beliefs motivating his objection … [they] disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

(Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 2018, p. 2)

The Court found in favor of Masterpiece Cake. The Court’s decision was criticized for focusing on religious animus and avoiding the core principle between gay rights and religious liberty (Kendrick & Schwartzman, 2018). Would the court had ruled differently if the state commission was respectful of Phillips’s religious beliefs and provided neutral treatment? In the dissenting opinion, Justice Ginsburg and Justice Sotomayor agree with the court’s majority opinion that “[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages’ ” (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 2018, p. 1), but argued that the Commissioner’s negative comments on Phillip’s religious beliefs and the treatment of bakers did not justify a favorable ruling for Masterpiece Cakeshop, Ltd. Justice Ginsburg opined that “what matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple” ( Justice Ginsburg, Dissenting Opinion, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 2018, p. 5). Gay people should be able to buy products on the same terms and conditions as other people: Gay couples have a right to store-bought wedding cakes but not customized wedding cakes. When it comes to artistic expression, religious freedom trumps discrimination in private businesses.

As noted earlier, lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights in the United States are still in the process of being determined by the courts. LGBTQ rights vary widely around the world. Western democracies provide the greatest legal protections while the Middle East and Africa have the most severe punishments. As of 2019, 30 countries have legalized same-sex marriage, 30 countries permit same-sex second-parent adoption, and 9 countries have constitutional provisions protecting sexual orientation from discrimination. On the other end of the legal continuum, men who have sex with men are executed in 6 countries (Iran, Nigeria, Saudi Arabia, Somalia, Sudan, and Yemen), 5 countries can technically execute (Afghanistan, Mauritania, Pakistan, Qatar, and United Emirates), and 70 countries criminalize same-sex activity (International Lesbian, Gay Association, 2019).

In the U.S., LGBTQ rights and protections are based on U.S. Supreme Court rulings, federal case law, statutory laws, and executive orders, as well as state, county, and city laws; rules; and regulations. In the end, rights and justice are determined by the U.S. Supreme Court. Although court rulings specifically address lesbians, gays, and transgender people the book includes the term queer and refers to the group collectively as LGBTQ. In the field of public administration, which trains public servants, LGBTQ rights fall under the theory of social equity and the umbrella of civil rights laws. Social equity theory postulates that everyone should be treated fairly and justly. In the preceding case, it would argue that all couples, including gay couples, are entitled to a custom wedding cake regardless of the baker’s religious beliefs. This position is in direct opposition to the Court’s ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 2018). As such, for social equity theory to have power, it must be based on the rule of law (Rosenbloom, 2018), regardless if one agrees with the ruling. This chapter provides an overview of the development of social equity. Specifically, it defines and operationalizes social equity, describes the institutionalization of social equity in the field of public administration, describes relevant research, and discusses key legal components as it relates to the LGBTQ population.

Social Equity Defined

The terms equality and equity are used interchangeably. However, from a legal perspective, there are core differences. Equality refers to equal parts and has a constitutional basis. The U.S. Constitution’s Fourteenth Amendment provides for equal protection under the law. In application,

the courts use it to judge whether a challenged law creates suspect categories whose members are subject to discrimination. The criterion considers whether group members have been historically discriminated against, have a highly visible trait, or have little to no power to protect themselves.

(Guy & McCandless, 2012, p. S6)

In comparison, equity is concerned with fairness and is rooted in philosophy, specifically social contract theory (Guy & McCandless, 2012), Locke (1689), and Hobbes (1660) laid the foundation that government must provide alienable rights and equalities in order to secure validity and legitimacy. People will abide by its government in exchange for protection. In A Theory of Justice, Rawls (1971) advocates for equity and insists that justice should be delivered “behind a veil of ignorance” to ensure fairness. The term equity is related to affirmative action, disparities, diversity, justice, and representative bureaucracy. Guy and McCandless (2020, 2012) point out that the concept of social equity evolved from a social contract, as described earlier, to a constitutional issue to an administration concern.

Social equity is a pillar of public administration. It is not as well known as the traditional pillars, which include economy, efficiency, and effectiveness, often referred to as the 3Es (Frederickson, 2010, 1990, 1980; Gooden, 2015, 2014; Gooden & Portillo, 2011; Johnson III, 2012a; Rutledge, 2002), but is equally important and recognized. As stated by the U.S. Supreme Court, “although efficacious administration of governmental programs is not without some importance, ‘the Constitution recognizes higher values than speed and efficiency’ ” (Frontiero v. Richardson, 1973, p. 1764; as quoted in Ely v. Saul, 2020, p. 16). However, the concept of social equity wasn’t introduced until much later in the field of public administration’s development. Specifically, it was introduced in 1968 at the first Minnowbrook Conference led by Dwight Waldo. At the conference, scholars assessed the state of the field and discussed the future of public administration within the context of great political turmoil including the Vietnam War, the civil rights movement, and multiple political assassinations. Out of the debate emerged the New Public Administration and the concept of social equity. Since Minnowbrook I, social equity has been recognized as one of the pillars of public administration (Blessett et al., 2019; Blessett et al., 2017; Frederickson, 2010, 1990, 1980; Gooden, 2015, 2014; Gooden & Portillo, 2011; Guy & McCandless, 2012; Rutledge, 2002; Wooldridge & Bilharz, 2017; Wooldridge & Gooden, 2009). However, because it joined the public administration lexicon much later than the three traditional pillars, social equity has been more difficult to define, operationalize, and measure, and as such, it has been less utilized (Norman-Major, 2011).

Several definitions of social equity exist in the academic literature. Shafritz and Russell define social equity as “[f]airness in the delivery of public services; it is egalitarianism in action – the principle that each citizen, regardless of economic resources or personal traits, deserves and has the right to be given equal treatment by the political system” (2000, p. 436). According to Gooden, “social equity is directly related to the democratic principle of justice. It is the concept of fairness applied to all, not just select groups” (Gooden, 2014, p. 13). An earlier definition by Gooden and Myers states that it is “fairness or social justice” (2004). In the book Justice for All: Promoting Social Equity in Public Administration, authors Johnson and Svara (2011) state the goal of social equity is “members of all social groups will have the same prospects for success and the same opportunity to be protected from the adversities of life” (p. 4). These definitions implicitly include LGBT people. Johnson and Svara (2011) go on to provide a comprehensive definition that operationalizes the concept:

Social Equity is the active commitment to fairness, justice, and equality in the formulation of public policy, distribution of public services, implementation of public policy, and management of all institutions serving the public directly or by contract. Public administrators, including all persons involved in public governance should seek to prevent and reduce inequality and injustice based on significant social characteristics and to promote greater equality in access to services, procedural fairness, quality of services and social outcomes. Public administrators should empower the participation of all persons in the political process and support the exercise of constructive personal choice.

( Johnson & Svara, 2011, p. 282)

As illustrated above there are numerous definitions of social equity, but there is no consensus on a single definition, which makes it difficult to operationalize (Rosenbloom, 2018). Rutledge (2002) summarized it as “our failure as a profession to develop the quantitative tools, indicators, and benchmarks to define objectives and measure progress in the pursuit of social equity”...