North Carolina reigns supreme right now in the realm of mixing unthinking bigotry, discrimination, and bad governance, but hold onto your butts folks, because the deranged Ohio General Assembly not only sees nothing wrong with North Carolina’s approach but is making designs to emulate it.
And meanwhile, it comes out, we have a candidate for Ohio Supreme Court who has all but promised to shield pro-discrimination legislation from legal challenge if elected to the state’s high court.
Appellate Court Judge Pat DeWine has indicated he would likely strike down laws protecting LGBTQ Ohioans if they come before the court in his groveling reply to a candidate questionnaire from Right to Life of Greater Cincinnati.
DeWine is the son of the state’s top elected lawyer, Ohio Attorney General Mike DeWine, and has already been rejected by the Ohio State Bar Association in his bid for the high court. According to the OSBA, a “not recommended” vote means the association’s review panel believes the “candidate’s qualifications are not suited to perform the duties and responsibilities of chief justice or justice of the Supreme Court of Ohio.”
Meanwhile, DeWine’s Democratic opponent, Cynthia Westcott Rice, received a “highly recommended” score from the OSBA commission.
I’m speculating, but perhaps the difference had something to do with DeWine’s apparent willingness to abdicate all responsibility for rational thought and sound jurisprudence in favor of political hackery. The apple doth not fall far from the malus domestica.
Right to Life of Greater Cincinnati circulated a questionnaire that asks whether candidates agree that “laws that require businesses or religious organizations to work for or provide services to gay, lesbian, bisexual and transgender persons despite these entities’ religious or moral objections are unconstitutional.”
Other judicial candidates, including those in his own party, refused to take the survey or answer that specific question, but not Pat.
Here’s DeWine’s answer:
“The First Amendment’s guarantees of freedom and speech and association are two of our most important rights. Any government effort to infringe on these rights would face the difficult task of meeting strict scrutiny and proving a compelling governmental interest to do so.”
This “strict scrutiny” line comes straight from the GOP legal eagle playbook when applying the justice system to any thing that hurts reactionaries’ feel goods, in this case anything having to do with the LGBTQ community. By applying “strict scrutiny” a judge approaches the complaint from a view of de facto unconstitutionality, thus essentially dooming the side arguing against discrimination or for equal treatment under the law.
It’s a family tradition for Casa de la DeWine. Papa Mike wasted $1.3 million of Ohio taxpayer’s money last year stupidly fighting against equal marriage rights by putting for one of the most absurd legal arguments I’ve ever had the pleasure to convulsively laugh at.
After the U.S. Supreme Court plated and handed Mike his ass, the GOP has gotten busy around our various states legislating “religious freedom” bills that attempt to justify all manner of discrimination in public accommodation. To them, it’s as though the lunch-counter debate never happened. But I digress.
To say that Pat DeWine is out-of-touch is understatement on the order of Donald Rumsfeld saying the opponents to Operation Iraqi Freedom simply had a “depressing view of war.”
Ohio Revised Code gives protected-class status to people on the basis of “race, color, religion, sex, military status, national origin, disability, age, (and) ancestry,” but not sexual orientation or identity.
So LGBTQ people in Ohio enjoy no protection from discrimination in private employment or public accommodation as it is.
But according to Equality Ohio, 79 percent of Ohio registered voters believe that laws should be passed banning discrimination in employment, housing and public accommodations based on both sexual orientation and gender identity.
In 2009, the state House passed non-discrimination legislation, but the state Senate failed to act. At least 13 municipalities (Athens, Bexley, Bowling Green, Cincinnati, Cleveland, Cleveland Heights, Columbus, Coshocton, Dayton, Newark, Oxford, Toledo and Yellow Springs) and four counties (Franklin, Lucas, Montgomery and Summit) have ordinances preventing discrimination against LGBT Ohioans.
So Pat DeWine is saying that he would reject all of that non-discrimination legislation as unconstitutional out-of-hand. He’s promising he wouldn’t even take the time to think about it. I may be old-fashioned but I propose it’s incumbent on a judge to at least think about something before making a decision. Generally any 3-year-old can manage at least a thought or two before decision-making time.
Nevertheless, here we have another DeWine playing religious politics with the law and justice and posing active danger and pain to people’s lives because of it, which I would propose is not only wrong but wicked.
I’m not the only to have noticed.
Here’s Ohio Democratic Party Chair David Pepper:
“Pat DeWine has pre-committed to an extremist and activist legal stance that would potentially overturn laws that protect LGBTQ Ohioans from discrimination in housing, public accommodations and the workplace. Even worse, it would appear DeWine’s statement has no basis in legal precedent. The fact that he’s wading into a matter that could potentially come before the Court is exceedingly inappropriate and shows exactly why the Ohio State Bar Association rated DeWine as ‘not recommended.’”
Meanwhile, we do have some legislators in Ohio trying to correct our state’s dismal situation when it comes to protecting the LGBTQ community from discrimination. State Rep. Nickie Antonio has sponsored the Ohio Fairness Act, which would prohibit discrimination based on sexual orientation and gender identity or expression in employment, housing or public accommodation
Here’s Rep. Antonio on Pat DeWine’s record.
“Gay, lesbian and transgender Ohioans need to know that the races for the Ohio Supreme Court are just as important as the races at the top of the ticket. DeWine has a well-documented record of opposing protections for the LGBTQ community, including when he voted against a Cincinnati ordinance that expanded the definition of a hate crime to include sexual orientation.”
Meanwhile, courts have generally not found that anti-discrimination laws violate the First Amendment or trigger strict scrutiny. For more on that, we’ll turn to Professor Daniel Tokaji, the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law and Senior Fellow in Election Law at The Ohio State University Moritz College of Law.
“Laws that prohibit businesses from discriminatory actions—whether based on race, sex or sexual orientation—don’t typically infringe on free speech or association, so wouldn’t be subject to heightened scrutiny. In the overwhelming majority of cases, laws prohibiting businesses from discriminating raise no serious First Amendment problem.”
Ohio Supreme Court races matter, folks. They matter a lot, and not just for equal rights for the LGBTQ community but on a whole host of issues.
Pat DeWine doesn’t deserve to be anywhere near a seat on the Buckeye State’s high court. His brand of hate is a relic of shameful earlier times, and the only place it deserves to be is in the dustbin of history with all the other hateful, discriminatory relics.
David DeWitt is a writer and man of sport and leisure based out of Athens, Ohio. He has also written for Government Executive online, the National Journal’s Hotline, and The New York Observer’s Politicker.com. He can be found on Twitter @DC_DeWitt.
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