Texas Reverses LGBTQ Ruling

A whole 'nother board came to a sane conclusion.

While I generally don’t focus much attention here on state-level policy decisions, it’s worth cataloging this one since I railed against the earlier ruling.

NBC News (“Texas reverses decision that allowed social workers to deny LGBTQ, disabled clients“):

A Texas regulatory board has reinstated protections that bar social workers from refusing services to LGBTQ people and people with disabilities.

The Texas Behavioral Health Executive Council, or BHEC, on Tuesday unanimously reversed an Oct. 12 decision made by the Texas State Board of Social Work Examiners, which had stripped language from its code of conduct that protected clients from being turned away on the basis of their sexual orientation, gender identity or disability.

Gov. Greg Abbott, a Republican, had recommended that the board remove the nondiscrimination language, suggesting that it went beyond the state’s current policy.

The Texas chapter of the National Association of Social Workers applauded the reversal and said over 24,000 people had signed its online petition protesting the decision to remove the protections.

“This was a big win today for advocacy, the board and for nondiscrimination,” said the association’s executive director, Will Francis. “But this is still Texas, and there are not underlying protections for LGBTQ persons. So had these nondiscrimination protections been stripped away, that really would have left people vulnerable, so we need legislation that ensures that there is protection.”

It’s good to see some small measure of sanity restored. In addition to what seems like obvious Constitutional issues, the original decision was just cruel. Even if this was a decade ago and the Supreme Court hadn’t institutionalized gay rights nationwide, I can’t imagine the mindset that would deny LGBTQ individuals professional help. Indeed, if one’s view is that these people are sick and making poor lifestyle choices, you’d think that having them get counseling would be a good thing.

FILED UNDER: Gender Issues, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jon says:

    As has been said in other contexts, the cruelty is the point.

    20
  2. Barry says:

    ‘Religious liberty’ means ‘right to discriminate’.

    16
  3. Teve says:

    What a shame. Jesus hated disabled people.

    15
  4. MarkedMan says:

    If there is any situation that allows this to reach the Republican Supreme Court, is there any doubt how this will rule? Is it any different than allowing pharmacists to pick and chose which prescriptions they fill based on their religious beliefs? Or employers to deny health care insurance? Or bakers to pick and chose who they will service as clients?

    Railing against the previous decision but supporting these others makes no logical sense, and the haters now have complete control of the court.

    4
  5. James Joyner says:

    @MarkedMan:

    Is it any different than allowing pharmacists to pick and chose which prescriptions they fill based on their religious beliefs? Or employers to deny health care insurance? Or bakers to pick and chose who they will service as clients?

    The rulings on these have been fairly nuanced. Many states have adopted “Conscience Clause” provisions to allow individual providers to opt out. So far as I know, the Supremes haven’t ruled on this issue aside from church-affiliated hospitals and mom-and-pop bakeries.

    But it’s one thing to allow individuals to opt out on religious grounds and quite another for the state itself to deny a service on a blanket basis. In the former, there’s a tension between two Constitutioal rights. In the second, there’s no tension at all: the Constitution directs states to provide equal protection.

    5
  6. Roger says:

    @James Joyner: So far as I know, the Supremes haven’t ruled on this issue aside from church-affiliated hospitals and mom-and-pop bakeries.
    Imagine my surprise at learning that Hobby Lobby is actually a mom and pop bakery. https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

    10
  7. DrDaveT says:

    @Roger:

    Imagine my surprise at learning that Hobby Lobby is actually a mom and pop bakery.

    This.

    5
  8. James Joyner says:

    @Roger: The Hobby Lobby decision was one of statutory interpretation, not Constitutional Law. It ruled that the Religious Freedom Restoration Act applied to religiously-founded corporations. I disagree with the application of RFRA to Hobby Lobby, simply because they’re so large, but have no objection to allowing mom-and-pops (much less single proprietor bakers) make decisions like that.

  9. Teve says:

    Nebraska has five electoral votes. If Trump is campaigning there, is that a good sign?

    1
  10. Northerner says:

    @MarkedMan:

    If there is any situation that allows this to reach the Republican Supreme Court, is there any doubt how this will rule? Is it any different than allowing pharmacists to pick and chose which prescriptions they fill based on their religious beliefs? Or employers to deny health care insurance? Or bakers to pick and chose who they will service as clients?

    How do you feel about companies (or individuals) refusing to serve people with different political beliefs than themselves? This is becoming a minor issue in Canada — and actually is an instance where it really is both sides doing it (well, actually more than two sides, given Canadian politics, but you get the idea). I find I’m torn on the idea — on the one hand I can understand not wanting to serve someone whose politics you find repugnant, on the other hand that cuts in a lot of directions and inevitably includes a lot of other categories in addition to politics.

    Refusing to serve Toronto Maple Leafs fans on the other hand is something I can fully get behind.

    2
  11. Jen says:

    @Northerner: That’s interesting. Here it seems more the reverse: the companies make their opinions clear and then consumers pick and choose whether to support the business with their dollars. I can’t think of a story in the reverse off the top of my head (I’m sure it happens, just can’t think of it).

    Private businesses can choose whether or not they wish to serve someone, unless they are a member of a protected class. So, “no shoes, no shirt, no service” is fine, but “no service dogs allowed” is not. Political opinions would not be a protected class, so it’d probably be both legal and unwise to choose your patrons in this manner.

    1
  12. gVOR08 says:

    @Teve:

    Nebraska has five electoral votes. If Trump is campaigning there, is that a good sign?

    Nebraska is one of the, IIRC, two states that award EC votes by Congressional District. Per 538 Trump has a lock on four of the five. One is about 3:1 odds against Trump. So he’s there for a slim chance he can flip 1 EC vote in Omaha?!?

  13. Barry says:

    @Roger: “Imagine my surprise at learning that Hobby Lobby is actually a mom and pop bakery. ”

    IIRC, Scalia et al. created a new category for them. Previously (IANAL), stock corporations were not subject to such things. It’s an old legal principle that owning stock in a corporation does *not* give moral rights over that corporation, merely ownership rights. For example, if I own 51% of GM, I can control it, but if I own 1% I have no legal right to compel GM’s behavior.

    It’s a reasonable rule, and part of the price one pays for the advantages of an corporation being a separate legal entity from the owners of stock (which are considerable).

    Scalia had issued at least one decision supporting this, BTW.

    However, in the Hobby Lobby case, the Federalist SCOTUS decided that there would be a new category, because the stock ownership was shared by only a few people. Or that they wanted to do this, take your pick.

    Note that this new principle only applies to this. If you had a dispute with Hobby Lobby, Inc., you still could not go after the stockholders any more than you could with Acme, Inc.

    3
  14. MarkedMan says:

    @James Joyner:

    But it’s one thing to allow individuals to opt out on religious grounds and quite another for the state itself to deny a service on a blanket basis. In the former, there’s a tension between two Constitutioal rights. In the second, there’s no tension at all: the Constitution directs states to provide equal protection.

    Your belief that the Republican Supremes are striving for a “balls and strikes” ruling despite continuous evidence to the contrary simply astounds me. But putting that aside, the central questions are “Is sexual orientation a protected class covered under equal protection?”, and “Is the government obligated to accommodate employees due their (definitely protected) religious beliefs?”

    Can you still honestly believe the Republicans on the court are going to decide that question based on precedent and fairness? Even Roberts will show his true colors consistently now that an occasional siding with the opposition won’t have any effect.

    4
  15. MarkedMan says:

    @James Joyner:” huum-minah, huum-minah, huum-minah, reasons!” Put another way, ignore the forest, look at each decision individually and see if you can rationalize in some way how it came from precedent or originalism or whatever half-baked rationale the Republicans are waving at to take away the rights of minorities.

  16. MarkedMan says:

    @Northerner:

    How do you feel about companies (or individuals) refusing to serve people with different political beliefs than themselves?

    If you are a public accommodation, then you serve the public – all of it. Unless the person in question is disruptive or naked or waving a weapon around, you serve them. And you should do it professionally.

    3
  17. James Joyner says:

    @MarkedMan: Most of the advances in LGBTQ rights have come from Republican-dominated Supreme Courts! But, at the same time, they have bent over backward in granting individual opt-outs for Free Exercise reasons, often backed by legislation requiring them to do just that.

  18. James Joyner says:

    @MarkedMan:

    If you are a public accommodation, then you serve the public – all of it. Unless the person in question is disruptive or naked or waving a weapon around, you serve them. And you should do it professionally.

    I agree with this, by the way, and think it remains the law.

    Even if you’re a sole proprietor with deep religious convictions, you can’t refuse to sell cakes to gay people on the basis that you think gays are sinners. And, indeed, the person in the SCOTUS case was not doing that. What they were doing was refusing to engage in performative speech.

    That is, gays could buy cakes. They could buy cakes that said “Happy Anniversary” or “Happy Wedding” or whatever. They just couldn’t buy a cake that said “Adam and Steve’s Big Gay Wedding.” That’s a pretty narrow carve-out. [And it’s not fully clear that the carve-out exists, in that the ruling was actually really confined to the actions of a particular board, which had shown anti-religious bias.]

    1
  19. MarkedMan says:

    @Barry:

    However, in the Hobby Lobby case, the Federalist SCOTUS decided that there would be a new category, because the stock ownership was shared by only a few people. Or that they wanted to do this, take your pick.

    This is the whole issue in a nutshell. The Republicans on the court will invent “reasons” to do what they want, and the gullible will carefully weigh those reasons as if they weren’t just BS.

    2
  20. MarkedMan says:

    @James Joyner:

    That is, gays could buy cakes. They could buy cakes that said “Happy Anniversary” or “Happy Wedding” or whatever. They just couldn’t buy a cake that said “Adam and Steve’s Big Gay Wedding.”

    The actual facts of the case:

    Masterpiece’s owner Jack Phillips, who is a Christian, declined their cake request, informing the couple that he did not create wedding cakes for marriages of gay couples owing to his Christian religious beliefs, although the couple could purchase other baked goods in the store. Craig and Mullins promptly left Masterpiece without discussing with Phillips any of the details of their wedding cake.[2]:2 The following day, Craig’s mother, Deborah Munn, called Phillips, who advised her that Masterpiece did not make wedding cakes for the weddings of gay couples[2]:2 because of his religious beliefs and because Colorado did not recognize same-sex marriage at the time.[3][2]:1–2

    4
  21. Loviatar says:

    @MarkedMan:

    James Joyner is a Republican, he will change his words to say whats most beneficial for him. Notice I did not say he would change his mind or his actions to do whats most beneficial for the country.*

    *Repeat as often as needed or after every comment. Can also be used with all current Republicans and most former Republicans.

    2
  22. MarkedMan says:

    @Loviatar: Here’s my version.

    James Joyner disagrees with me on this. I think he is clearly wrong. He thinks I am clearly wrong. He is willing to engage in a serious discussion, and I owe him the same courtesy. Despite this serious discussion, he may not conclude that I was right all along. That’s life.

    14
  23. OzarkHillbilly says:

    I can’t imagine the mindset that would deny LGBTQ individuals professional help. Indeed, if one’s view is that these people are sick and making poor lifestyle choices, you’d think that having them get counseling would be a good thing.

    The first part leads me to think that the type of “counseling” they would be offered is conversion therapy. I can’t think of anything worse and I’m pretty sure you feel the same James.

    3
  24. KM says:

    @James Joyner:

    That is, gays could buy cakes. They could buy cakes that said “Happy Anniversary” or “Happy Wedding” or whatever. They just couldn’t buy a cake that said “Adam and Steve’s Big Gay Wedding.” That’s a pretty narrow carve-out.

    Black can ride buses. They can ride buses and sit in the front or whatever. They just couldn’t sit in the front if white people were present or if someone objected to where they sat. That’s a pretty narrow carve-out. Hmmm, I feel like we’ve already decided as a nation how acceptable this kind of scenario is and yet here we are again….

    I say this as a person of faith, someone who’s worked in a kitchen and as someone with artistic aspirations: screw that twisted “logic”. It’s simple bigotry dressed up to make it palatable to people looking to give hate a fig leaf. It wasn’t about “art” or “speech” or “deeply held beliefs” – they made a judgment call on their customers, period. They had a personal objection and let it interfere with their work. That is the opposite of professionalism and the opposite of public customer service. It is not participation in a sinful act nor is it endorsement of the same. It’s a goddamn cake with icing writing on it – not a magnus opus to be for an tortured artiste to angst about contaminating their vision by compromising their morals. Anyone who buys that dreck WANTS a reason to be able to tell gays to walk on.

    They very specifically refused to make something LBGT related BECAUSE it was LBGT related and against their “faith”. Tap dance around it all you want but that’s singling out a group for discrimination. That’s contradictory to the writings of their faith since Christ specifically instructed His followers to accept the sinners and not turn them away. Nowhere in the Bible are there instructions to deny services and commerce to the sinful; if anything, you’re supposed to completely shun their presence and not do business at all, not selectively sell them cookies when it’s convenient but refuse a custom cake because that’s a line too far. They’re trying to justify why they can choose to sell to those they find objectionable if they want but still be able to go eeeewww, no on command. It should have been called out for what it was: BS. Good for Texas that they didn’t go that route and realized the job of service is to *serve*, not judge.

    10
  25. Loviatar says:

    @MarkedMan:

    You know what my personal definition of privilege is; unearned Benefit of the Doubt and unearned Forgiveness. You are giving James Joyner an unearned privilege.

    Regarding Republicans, I can live with an opponent, I can not live with an enemy.

    5
  26. Beth says:

    @KM

    Black can ride buses. They can ride buses and sit in the front or whatever. They just couldn’t sit in the front if white people were present or if someone objected to where they sat. That’s a pretty narrow carve-out. Hmmm, I feel like we’ve already decided as a nation how acceptable this kind of scenario is and yet here we are again….

    I don’t this point can be made strongly enough. If the religious right gets its way and creates a carve out that allows anyone to discriminate against LGBTQ people there is nothing to stop it being applied to Black people or Jews. Most of those Jim Crow types used religion as a fig leaf for their racism.

    9
  27. grumpy realist says:

    @KM: The way SCOTUS was splitting the baby was (1) as a cake seller, you have to sell your generic cakes to everyone. However (2) no forced speech. (The baker probably DOES have to provide a tube of frosting so that the happy couple can put their own message on top, however.)

    (Most of these cake-baking cases I suspect have very little to do with the actual beliefs of the individuals, since I note that they don’t police the cakes of other couples who infringe other stated regulations. How many cake bakers have insisted on making sure all of the couples marry within their own religion? Or that neither of the pair has been divorced? The cake-bakers making a stink about this are making a fuss about SSM cakes because they know they can get away with it in the surrounding community. That’s all.)

    4
  28. DrDaveT says:

    @James Joyner:

    What they were doing was refusing to engage in performative speech.

    So the company that makes MAGA hats should be treated as making a political contribution, even though they just make whatever hat logo is requested? Because making that hat is performative speech. Seriously!?

    You have not thought this through.

    6
  29. An Interested Party says:

    It’s nice to know that here in the 21st century religion is the last refuge of the bigot…

    2
  30. Northerner says:

    @Loviatar:

    Interesting definition of privilege. My definition is: any benefit that every person doesn’t get. So looking at James, I would put physical and mental health at the top of his privilege list, followed by enough money for food and housing (try starving on the street for awhile if you doubt this), then having enough money for medical care — well, you get the idea. Getting the benefit of the doubt on his own blog strikes me as so far down the list of privileges that I’d need a scanning electron microscope to see it.

    Beyond that, forgiveness is something that everyone should get. That doesn’t mean forgetting (ie if someone has done something terrible you have to plan accordingly for the future), but the emotional aspect — everyone. If not, why bother with having a jail system? Much simpler and cheaper just to kill people for transgressing.

    1