Speaking of Women's Rights: 04/14

Wednesday, April 9, 2014

A Big Day in the Fight for Marriage Equality!

By David Ward

Tomorrow in Denver, the U.S. Court of Appeals for the Tenth Circuit will hear oral arguments in a case challenging Utah’s ban on marriage for same-sex couples – and it’s a case that marriage equality supporters across the country will be watching closely.

This will be the first time a federal appellate court has heard a challenge to a state’s marriage ban since the U.S. Supreme Court’s decision in United States v. Windsor last summer, which struck down part of the so-called “Defense of Marriage Act.”  The Supreme Court’s Windsor decision has paved the way for an amazing string of decisions by federal trial courts striking down state marriage bans across the country –  the first of which occurred in Utah on December 20.

The Tenth Circuit has fast-tracked the appeal in the Utah case, hearing oral arguments less than four months after the trial court’s decision (this amounts to warp speed in the federal appellate courts).  Legal Voice joined other women’s organizations to file an amicus brief urging the Court to strike down Utah’s ban as unconstitutional.

The arguments will be heard by a panel of three judges:  Judge Jerome Holmes, appointed by George W. Bush; Judge Paul Kelly, appointed by George H.W. Bush; and Judge Carlos Lucero, appointed by Bill Clinton.

This not a liberal panel by any means – but nonetheless, many court watchers who are familiar with the Tenth Circuit believe the panel is likely to strike down Utah’s law.  A former U.S. Attorney from Utah is predicting a 2-1 victory for marriage equality, while the website Think Progress says that gay rights advocates should be “cautiously optimistic.”

Observers generally agree that Judge Lucero is likely to find that Utah’s marriage ban is unconstitutional.  And many observers are hopeful that Judge Holmes will provide a second vote to strike down the ban.  In particular, they note that Judge Holmes joined the Tenth Circuit’s decision on December 24 to deny Utah’s request to “stay” (put on hold) the trial court’s decision striking down the Utah marriage ban pending appeal. 

In denying the stay, the Tenth Circuit’s decision reasoned:

A stay pending appeal is governed by the following factors:  (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is not granted; and (4) any risk of harm to the public interest.  The first two factors are the most critical, and they required more than a mere possibility of success and irreparable harm, respectively.  Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted.

In other words:  in December, Judge Holmes found that Utah did not show it was likely to succeed in defending the marriage ban on appeal, nor did it make a strong showing of harm.  The Tenth Circuit’s refusal to issue a stay also allowed hundreds of LGBT couples in Utah to marry before the U.S. Supreme Court finally stayed the trial court’s ruling on January 6.

Of course, trying to predict how a court will rule is like reading tea leaves.  And any decision by the 3-judge panel could be subject to further review – either by all active judges in the Tenth Circuit, or by the U.S. Supreme Court.  But this case is one to watch - and we’ll be crossing our fingers for a ruling that moves us closer to marriage equality throughout the country!

David Ward Legal & Legislative Counsel at Legal Voice, where he worked on LGBT, family law, and gender violence issues.  Take David out for drinks and you can test him on where each state stands on winning marriage equality!

Photo by Key Foster

Tuesday, April 8, 2014

Are We There Yet?

Do you remember sitting in the back seat and asking that question?  Are you now the one in the driver’s seat, with kids asking you the same question?

Some things never change.  But unlike antsy children, there are some things that really need to change – such as the wage gap.

Today, Equal Pay Day, provides an annual reminder of the wage gap; women work until this day in 2014 to be paid what men were paid for their work in 2013.  Nationally, women working full-time are paid 77 cents for every dollar paid to men, and in Washington State, 78 cents per dollar.

Even worse, the wage gaps for women of color are even greater. African-American women are paid just 64 cents for every dollar paid to white, non-Hispanic men – and Hispanic women, only 54 cents.  This means that for African-American women, Equal Pay Day comes in July.  For Hispanic women, it isn’t Equal Pay Day until November.

The wage gap has barely moved in the past decade.  At this rate, the wage gap will take 45 years to close.

I received a message recently saying the following: “We COULD earn higher salaries at the drop of a hat. But we decline to do that. It's our free, voluntary and very intelligent choice to NOT earn higher incomes.… When you find a man and a woman doing equal work for unequal pay, report it to the EEOC; that's what it's for. Other than that, don't imply that we are incapable of making decisions for ourselves.”

To these women, I say “more power to you.”  But many – indeed, most – women do not have those same choices. Women are disproportionately represented in low-wage sectors of the workforce – where, not coincidentally, workers are less likely to have access to paid sick leave or family or medical leave.

Further, one of the reasons workers don’t simply file discrimination claims is that workers often don’t know what their counterparts are paid.  Lilly Ledbetter, for example, who took her case to the U.S. Supreme Court, did not know she was paid less than three male managers until she received an anonymous note revealing their salaries. Many companies explicitly forbid workers from discussing pay and/or retaliate against them for doing so.

No one can eliminate the wage gap with a whisk of a magic wand, any more easily than your mom could invoke time travel to get to your travel destination sooner.  But today, we got a little closer when President Obama took two executive actions: first, he signed an Executive Order prohibiting federal contractors from retaliating against employees who discuss compensation, and second, he directed the Department of Labor to require federal contractors to report compensation data by sex and race.

Both of these policies are geared toward empowering workers by increasing wage transparency so workers can take action if there are pay discrepancies.  Congress is considering the Paycheck Fairness Act, which would strengthen the Equal Pay Act and extend similar measures as the new Executive Order to eliminate pay secrecy for all workers.

So today, the answer is “No, we’re not there yet.”  But in the meantime, we’ll keep speaking up about these issues. And we hope you will, too.

Janet Chung is Legal & Legislative Counsel at Legal Voice, where she works on economic justice and reproductive health issues.  She loves taking road trips and has never asked, “Are we there yet?”

Photo by Emlyn Stokes

I considered buying rain boots.‎

by Jamila Johnson

Last night—watching the final moments of the NCAA National Championship—I knew ‎I had won my annual March Madness office pool. And I have an unhealthy love of rain boots.  I ‎like the stories that come from the weird sources of funds that feed my addiction.‎

I considered buying rain boots, but I didn’t.‎

Instead, I just donated my winnings from March Madness to Legal Voice, an ‎organization that 35 years ago won equal access to sports facilities and programs for the women ‎of Washington State and set a national precedent. ‎

In Blair v. WSU, Legal ‎Voice represented female athletes and coaches of female athletes at Washington State ‎University. At the time, women’s athletic programs were receiving inferior funding, fundraising ‎efforts, publicity and promotions, scholarships, facilities, equipment, coaching, uniforms, practice ‎clothing, awards, and administrative staff and support.

The case went a long way to improve the ‎equity of opportunities at Washington State University for women in athletics.

And today, 35 ‎years later, Women’s basketball flourishes at ‎WSU. ‎

According to the Seattle Times, “WSU and Washington have ‎more women’s sports than men’s, and the women share state-of-the-art facilities and enjoy other ‎benefits brought by Title IX, including equal money awarded in athletic scholarships.” And while ‎rain boots would have been nice, I am instead saying thank you to Legal Voice for Blair v. WSU ‎and saying thanks for the 35 years of securing and protecting women’s rights that have followed. 

Jamila Johnson is a litigator at Schwabe, Williamson & Wyatt and a board member of Legal Voice. She cannot play basketball, and actually bought a book on how to run before using a treadmill for the first time.