The Legal History of LGBT Community Rights and Coping with Discrimination

Episode Notes

Transcript

Paralegal Voice: The Legal History of LGBT Community Rights and Coping with Discrimination – 5/3/2015

Advertiser: Welcome to the Paralegal Voice, where you hear the latest issues and trends in the world of paralegals and legal assistance by one of the best known paralegals in the industry, Vicki Voisin. A paralegal for more than twenty years, Vicki is dedicated to helping legal professionals reach their goals. You’re listening to Legal Talk Network.

Vicki Voisin: Hello everyone, welcome to the Paralegal Voice here on Legal Talk Network. I’m Vicki Voisin, the paralegal mentor and host of the Paralegal Voice. I’m a NALA Advanced Certified paralegal. I publish a weekly e-newsletter titled Paralegal Strategies. I’m also the co-author of the Professional Paralegal, a Guide to Finding a Job and Career Success. You’ll find more information at ParalegalMentor.com. My guest today is Rick Roane, Esq., an attorney with Warner Norcross & Judd LLP in Grand Rapids, Michigan, and welcome, Rick.

Richard Roane, Esq.: Thank you, Vicki, thank you.

Vicki Voisin: So glad that you could be with us today, but before we begin, our sponsor should be recognized and thanked. Thanks to our sponsor, Boston University. Boston University offers an online certificate in paralegal studies. Check it out if you’re seeking a professional credential, or just want to further develop your skills. It’s an affordable, high-quality 14-week program. Visit ParalegalOnline.bu.edu, for more information. Thanks also to Paralegal Voice sponsor, NALA, a professional association for paralegals, providing continuing education and professional certification programs for paralegals at NALA.org. NALA is a force in the promotion and advancement of the paralegal profession, and has been a sponsor of the Paralegal Voice since we began this show. And Serve-Now, a national network of trusted, prescreened process servers. When you work with Serve-Now, you work with the most professional process servers who have experience with high-volume serves, embrace technology, and understand the litigation process. Visit Serve-Now.com to learn more. The goal of the Paralegal Voice is to discuss a wide range of topics important to the paralegal industry and also share with you leading trends, significant developments and resources you’ll find helpful in your career and your everyday job. Guests are usually included to help explore timely topics. For that reason, I’ve invited attorney Rick Roane to join me today. First, I want to tell you just a little bit about him. Although saying I’m going to tell you a little bit is kind of interesting because Mr. Roane has quite a history and a lot of experience for us. First of all, he is with Warner Norcross & Judd, he is a partner with Warner Norcross & Judd, and they’re listed in the Best Lawyers in America Martindale-Hubbell rankings and Chambers USA Acknowledgements. They’re one of the largest and most successful law firms in Michigan. And I have to tell all my listeners that when I can have an attorney with me from Warner Norcross & Judd, I am delighted because they are one of my favorite firms to work with. This firm was created in 1931 and with the understanding that client service would be their number 1 priority. Now Mr. Roane, as I said, as a partner with Warner Norcross & Judd, he has practiced family law and domestic relations litigation for 26 years. His work involves entire families and his goal is to find a resolution to the problems facing the family he serves. He says that this is a less contentious approach. He specializes in divorce, nonmarital domestic relationships, domestic relations mediation, and arbitration, spousal support child custody and support complex business evaluation distribution and pre and post nuptial agreements. As I was reading his bio, there were a couple of things that I found interesting. First of all – not that it’s all interesting – he got his BBA from the University of Hawaii, so I think that’s great. He does a lot of speaking and has some publications that I think that all of the listeners would like to read. First of all, his Navigating Custody Issues: There’s no Place Like Home(s) for the Holidays, and he is the co author of the Marriage Equality Movement after United States v. Windsor: Resulting Litigation and Changes Across the Nation, and also the co author of the Marriage Equality Movement after United States v. Windsor. So, Mr. Roane, may I call you Rick?

Richard Roane, Esq.: Yes, please, thank you.

Vicki Voisin: I’m so happy to have you here today and I know that I have told you the quick story about exactly why we’re doing this particular podcast, because I was speaking at a paralegal conference at a paralegal who approached me and confided in me that she is gay. She has many fears about this status and what would happen if she came out and her employer and also her co workers knew about her status and she asked me to please address this issue on the Paralegal Voice. So I invited you to be with me both because of your personal and professional experiences in this issue and I think that this is going to help a lot of my listeners with LGBT issues.

Richard Roane, Esq.: I’m happy to be on your program today and to help the paralegal who approached you on issues and concerns of being out as a lesbian, gay, transsexual or bisexual individual; it’s because I’m gay. I’m openly gay and for most of my 28 years of practice. I’ve been openly gay in my community. I practice primarily in Grand Rapids, which is a small, conservative community, traditionally. But it is an open and it’s a diverse community as well. And so my thoughts that I want to share are from my personal experience and I’d like to share and talk about fears and talk about security and talk about security in one’s career.

Vicki Voisin: I think that that is exactly what my friend was asking about. Now let’s begin by talking about the history of LGBT issues and that’s going to include the Elliott-Larsen Act and DOMA and so forth. So go ahead and fill us in on a little bit about that.

Richard Roane, Esq.: Well, to talk about the history of LGBT issues, of course there have been gays and lesbians throughout history, and I’m going back centuries and probably back to the dawn of time. But the most recent history I would probably focus on, I would think the modern LGBT movement – which essentially is defined as being in June 1969 – was Stonewall Uprising. And that coincided with the modern feminist movement in the 60’s, the civil rights movement to the 50’s and culminating in the 1960’s with the 1964 Civil Right Act. And so as these marginalized groups of minorities – first with the African Americans and then women and then gays and lesbians – as these movements are taking place and these people are demanding their rights in 1969 for the first time in an organized fashion: the gays and lesbians, at a certain bar in New York city, the Stonewall Bar in Greenwich Village. When there was one of the typical police raids, because it was illegal for gays and lesbians to gather and socialize together, believe it or not, as late as 1969. And so they were routinely arrested and prosecuted and so for the first time in June 1969, they fought back and that started and that’s the flashpoint of what we know as the modern civil rights movement of the gay rights movement, so going back to 1969. Bit by bit, in community after community, lesbains and gays felt more comfortable to be out and we’ve seen that in all of our lifetimes. But the lifetime of the listeners, you don’t have police raids on bars, you don’t have that type of oppression. But there’s still discrimination and there’s still inequality. Going back to my area of specialty as a divorce lawyer, I’m going to focus on what I’ll call the marriage equality movement, which is gay marriage, as it has developed internationally starting in 2001 with the first country, the Netherlands, to recognize gays and lesbians rights to marry. And in 2004 where we had the first state in the United States, Massachusetts became the first state to recognize same sex marriage. So just 11 years later in 2015, we have the issue of same sex marriage. 38 states in the country, and Washington D.C., so 39 jurisdictions, recognize and allow same sex marriage. There are now a minority of 12 holdup states, prohibition states, including MIchigan, which is in that minority of states that still have either constitutional amendments or laws on the book that prohibit same sex marriage. So that’s what I want to focus some of my comments on right now: how we got here, what impact marriage has and where we’re going and then how that ties into other rights, and jobs security and things in that nature for LGBT folks. So if I can continue-

Vicki Voisin: Please do.

Richard Roane, Esq.: Just under two years ago in June 26, 2013, the US v. Windsor case was decided by the United States Supreme Court. It wasn’t a marriage case, it was a tax case. And in that case, it was a case where Edith Windsor, a lesbian woman living in New York, was in a longterm relationship with ultimately, her wife, Thea Spyer, and they met in the early 1960’s. Edith worked for IBM, Thea was an immigrant from the Netherlands. Her family fled the Nazis during World War II and her father was wealthy, he owned a pickle factory that came to New York. Thea became a therapist and ran a therapy office in her home. Edith and Thea were a couple and they loved each other and shared their life together and as Thea grew older, she developed multiple sclerosis. And so Edith quit her job at IBM and became the caregiver to Thea in 2009 before New York, where they lived, was a marriage equality state. It was very important for them to marry. They wanted to marry as Thea was becoming sicker and sicker and was likely to die. So they went to Canada, which was a marriage recognition country, and they got married and they came back to New York but New York had a prohibition statute so New York did not recognize their marriage. Now, if a heterosexual couple went to Canada to get married and they came back to New York, New York recognizes their marriage. But under the various marriage prohibition statutes that were enacted starting around 2004 around the country, those same sex marriages did not need to be recognized by those statutes, and it really is an equal protection issue where you’ve got a class of people – lesbians and gays – who are getting married who are treated differently and their marriages are viewed differently than heterosexual couples. And that’s one of the issues that is going to be decided by the Supreme Court in arguments next month. So in the Windsor case on June 26, 2013, it was the provisions of the DOMA, the Defense of Marriage Act, that said the federal benefits for same sex couples will be denied. In other words, the federal government has many benefits that are available for married heterosexual couples, but the Defense of Marriage Act – which was voted into Congress and signed by Bill Clinton in 1994 – said that if there are same sex couples that are married, the federal government does not need to recognize the marriage and the federal government does not need to make those benefits available. The benefits that were available to Edith Windsor upon Thea’s death, were that when Thea died, Edith inherited her estate as her surviving spouse. However, since the marriage was not recognized by the federal government, Edith had to pay a $565,000 inheritance tax. And if Edith’s spouse had been a man, there would be no inheritance tax. So you have a half a million dollar tax question and Edith said I’m not going to pay that. Well, she did pay it and she hired the ACLU and she sued the federal government. And so the Supreme Court heard that case on June 26, 2013, issued its opinion invalidating that section of the Defense of Marriage Act making the federal benefits of marriage available to all married same sex couples. At the time of that decision, there were less than a dozen marriage equality states. Flashforward less than two years later, a majority of the population of the United States – I believe about 75% of the population – lives in marriage equality states. 38 states plus Washington D.C. recognize marriage equality and a minority of 12 states still have marriage prohibition statutes. And there were over 60 lawsuits that were argued at the various federal and state trial levels, federal courts of appeals, and in the last two years resulting in appeals to the US Supreme Court out of the 6th Circuit, including Michigan, Ohio, Kentucky and Tennessee. In Michigan’s case, DeBoer v. Snyder, is the key case that’s going to Supreme Court next month. It’s challenging Michigan’s same sex marriage prohibition and its adoption statutes that prohibits same sex couples from co adopting children. And so that’s where we were, going back to 1969, 2001, 2004, 2013, and now here we are in March of 2015, and on April 28th in the US Supreme Court in Washington DC, the four cases consolidated including the DeBoer case out of Michigan. Then the other 6 certain cases will be argued or all arguments will be for the Supreme Court with a final decision expected by the end of their term towards the end of June 2015. And so it’s expected – although one can never predict what the court of appeals will do – the Supreme Court narrowed the issue down to two specific questions: does the 14th amendment of the Constitution for equal protection require states to recognize same sex marriages of other states. And second question, does the 14th amendment of equal protection require county clerks to issue marriage licenses to same sex couples. It’s two very narrowly-drawn questions, and those are the questions that the Supreme Court is going to decide.

Vicki Voisin: Now will we have their decision by the end of this term?

Richard Roane, Esq.: It’s expected. Traditionally, when the US Supreme Court hears its arguments in its Spring term, all of the decisions are rendered by the end of June. So they have oral arguments and they have delicious days. And the decisions are based upon the oral arguments and then opinions are drafted and circulated among the justices. And then the justices decide if they’re going to write their own opinion or if they’re going to go with the majority or the minority. And so it’s expected, now the Supreme Court has, in its history, held decisions over into the next term, into the Fall term. But it is expected – it’s very unusual that would happen – it’s expected that the decision on the 6th circuit cases will be decided by the end of June. For example, the Windsor decision was argued on I believe March 26, and the Supreme Court issued the decision on the last day of its term on June 26 of 2013. And so it’s expected that this will be decided by the end of June.

Vicki Voisin: Interesting. I want to throw in that I attended a hearing at the US Supreme Court and this was regarding paralegal fees, not very long ago. And they did issue that opinion which found in favor of being able to charge for paralegal fees right on the last day of the term, so that was interesting. Also interesting to be there as an observer and knowing about the case. Anyway, we’re going to stop now to take a short break for a word from our sponsors, and when we come back we’re going to continue our discussion with Rick Roane, an attorney with Warner Norcross & Judd in Grand Rapids, Michigan.

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Vicki Voisin: Welcome back to the Paralegal Voice. I’m Vicki Voisin and my guest today is attorney Rick Roane. We’re discussing LGBT issues. Now, Rick, so far we’ve focused on the history of LGBT issues, and what I’d like for you to do now is share your personal experience with our listeners.

Richard Roane, Esq.: Well my personal experience started when I came to Grand Rapids in 1987 when I moved here after law school in Los Angeles. I moved in the middle of Winter and it seemed like a cold environment I was moving into, both physically and literally emotionally. I didn’t know anyone in town, I wanted to practice family law. It’s a small community, it’s a very welcoming legal community, it’s a very nice community to practice in, but I didn’t know anyone and no one knew me. And I had this big secret, because I really wasn’t out. I was gay and I was afraid particularly of moving to a conservative community, that if I was gay, nobody would hire me. Or if I was hired and worked in an office and they found out I was gay, then I would be fired. So that was a fear I lived with for a couple of weeks when I got my first job, and my first lawyer that I worked for, James Zerrenner, just assumed or figured out that I was gay and pulled me into his office one day and said, “Hey, this is cool, I’m fine with this. Not that I know any gays but you don’t need to be the leader of the parade, you don’t need to be an activist to make a difference. So help the people that you want to help, represent the clients that you want to represent. Kind of be quiet about it and don’t lead the parade, don’t be an activist, frankly, don’t wreck my business.” So I was respectful of his desires and I had the opportunity for my entire practice to work with gays and lesbians in relationship breakups to help them either as a  mediator or as an advocate for one or the other to help them get through the process. So my personal experience was I was working in a friendly work environment and I didn’t feel any hostility and I wasn’t fearful that I would be fired because I was gay. But I represented many people over the years who are gay and that was their biggest fear, that if they were found out by their employer whether they were a school teacher, or whether they work in a church or whether they work in a restaurant or whatever they do for work, and other lawyers, paralegals, what is going to happen if their boss finds out they’re gay, whether they work in a big organization or a small company. And that is something that draws a lot of energy away from you if you’re fearful that you might lose your job. Our jobs identify who we are, they’re our livelihood, they provide our bills, they provide us financial security during our work years, and they provide us with retirement security in our retirement years. And so we spend most of our waking hours working at our jobs and it’s important that you are comfortable and you’re not fearful that come whatever day comes around the corner hat you’re going to lose your job. And so this is a fear that people legitimately have and it’s something that we focus on.

Vicki Voisin: Now, is there a risk more for paralegals than for partners of a firm? I know you’re a partner.

Richard Roane, Esq.: I think that there is, because as a partner, I’ve got a partnership agreement. It’s kind of like an employee contract, there’s certain standards and conditions by which a partner can be removed in most partnerships. A paralegal, by definition, cannot be a partner in a law firm. They’re not a lawyer so they’re not part of a partnership agreement. And so presumably, people in paralegal positions are employees, employees at will. Now I’m not a labor expert so I don’t want to lead anyone to believe that I’m an expert in labor law. But they would be an employee at will. Sometimes they might be employed by an employment contract. But for the most part, they wouldn’t be protected by a partnership agreement. And so, I suppose an unsympathetic law firm could fire a paralegal on the basis that they were gay and probably get away with it. And particularly in the states where there are not legal protections for LGBT folks, as some states do have those legal protections.

Vicki Voisin: Now, Rick, as we went into this, I assumed every state would have protection for the LGBT community and it was shocking to me to find out that actually the number of states that do, that’s a minority of our states.

Richard Roane, Esq.: It’s shocking for people to hear that LGBT folks, who are clearly a minority in the population, do not have legal protections in every state. We do not have a federal protection. There is a proposed federal legislation called ENDA, Employment Non-Discrimination Act, that would protect LGBT folks that has never passed Congress. And then throughout the country, virtually all states have an equivalent of the states Civil Rights Act, and it provides for protected classes of individuals and what can and can’t be done. Now Michigan’s version of the Civil Rights Act at the state level is called the Elliott-Larsen Act, that goes back to 1977 when it was enacted in Michigan on January 13, 1977. It was a bill signed into the law by governor William Milliken at that time, and it is nicknamed after the two sponsoring legislators, Elliott and Larsen. In 2014, Michigan’s legislature and a group, a huge coalition of businesses, were trying to expand Michigan’s Elliott-Larsen Act to include protections for LGBT folks. And that effort, even though it had a huge groundswell of support – primarily from the business community, and we’re talking big corporations saying it’s good for business to make Michigan a friendly and welcome place for LGBT folks and we can do that by providing protections so that they have protections at their job and then their housing and other combinations. And that bill did not get out of committee and it died at the end of the legislative session. It’s expected that a similar bill may be proposed again on the current legislature, but right now Michigan is in the majority of 27 states who do not have statewide protections. Now the Elliott-Larsen Protection Act says it prohibits discriminations on the basis of religion, race, color, national origin, age, sex, height, weight, marital status, and the discrimination bill goes into protection in employment, housing, education and access to public combinations. So it does not provide protection for LGBT folks. So if someone is overweight, they’re protected, but if someone is gay, they’re not. So if someone is short or tall, they could be protected, unless they’re gay, they’re not protected. And that’s what’s so surprising because it seems to most people that within this modern day and this modern world that there would be protections in your job. So a public or a private employer can fire someone solely on the basis that they’re gay or lesbian.

Vicki Voisin: And it doesn’t matter if you are employed by a corporation or a governmental entity? It’s the same thing?

Richard Roane, Esq.: There are 23 states, and I’ve got a list of them.

Vicki Voisin: I think I’ll put the list up on my website, how is that?

Richard Roane, Esq.: That’s a good idea. There are a list of states from California to Wisconsin, 23 states who do have protections for LGBT folks. What the Michigan coalition of businesses and the ACLU – which was a big supporter and sponsor of this legislation last year – discovered was that in the states that do have protections for gays and lesbians, is it’s a better business climate. It’s more welcoming and it’s more likely that gays and lesbians will be employed there or will start businesses there and will employee people there which is good for economic growth. And in the states that do not have those protections, there’s a chance there’s an exodus of lesbians and gays to leave the state where there’s not protection and go to states where there’s more protection.

Vicki Voisin: Okay, so what tips do you have for someone who is in a state that does not have the protection that may be concerned about losing their job if they’re out? What should they be doing in the mean time?

Richard Roane, Esq.: I’ll use an example. You’ve got a gay school teacher working for a public school and that person would be horrified that the school administration and the principal, other teachers or parents find out that they’re gay. So the person is not out, they’re somewhat closeted and they’re teaching and they’re doing just fine. It’s important that you get great reviews and your employment file shows good performance reviews or excellent performance reviews. It would be very suspicious if an employee teacher has years of great, excellent reviews, letters of commendation from the administrators, letters of support from parents, and all of a sudden when that teacher’s found out to be gay, is suddenly fired. It looks a little suspicious, what is the basis for the firing? Now technically, the school can fire the teacher for being gay, although the teacher may have a cause of action under an employment discrimination basis. And again, talk to an employment lawyer – I’m not an employment lawyer – on the basis that by all other measures, if this has been an excellent teacher with excellent reviews, teacher of the year, parents love the teacher, support the teacher, and then the teacher is suddenly fired because it’s found out that the teacher is gay. Right now there is no prohibition in Michigan for that content, and it leaves the teacher feeling vulnerable and it leaves the teacher feeling less than a whole human being with all the rights and responsibilities that everyone else has. And it can be demoralizing and it can be depressing. My advice would be to make sure that you’ve got good reviews and good information and good records and good progress reports in your employment file. You should have access to your employment file for whoever you’re working for and if you win a teacher of the year award or you win some national accolade or some local accolade, if you’re the president of the NALA’s organization, or if you’re the president or active in the paralegal association, make sure that information’s in your employment file because those are things that are achievement and achievement and experience-based. And it may make it harder for an employer to support a firing solely based on your LGBT status.

Vicki Voisin: Right, great advice. Well, first of all, I know that you have a new publication or new article out. I’d like for you to tell our listeners about that.

Richard Roane, Esq.: Yes, read up on my marriage equality issue. I have a recent publication in the journal of the American Academy of Matrimonial Lawyers and it was an issue that came out in March 1st, 2015 and it was devoted for cutting edge issues and family law, and the title of the article is Marriage Equality Update. And I co authored this with my colleague and friend, Richard Wilson, a divorce lawyer out of Chicago. This article introduces the marriage equality movement, the same sex marriage movement, going back to the first same sex marriage in Netherlands – as I talked about earlier – then in Massachusetts 11 years ago. All the way up to the Supreme Court’s decision – it had to be added as a footnote because this was literally hot off the press – that on January 16th the Supreme Court decided to take the 6th Circuit cases to try to address, and hopefully resolve the issue of disparity of equality versus prohibition states in the United States. And so that’s a recent publication and I can make copies of it available if a listener would want to contact me by email.

Vicki Voisin: Okay, and how would they contact you?

Richard Roane, Esq.: My email address is [email protected]

Vicki Voisin: Perfect. Well thank you so much, this has been very enlightening. I’ve enjoyed the information that you shared and I know our listeners will, and I really appreciate you taking the time to be with me today. Thanks so much, Rick.

Richard Roane, Esq.: It’s been a pleasure, Vicki. Thank you for having me.

Vicki Voisin: You’re welcome. Let’s take another short break now, but don’t go away because when I come back I’ll have news and career tips for you.

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Vicki Voisin: Welcome back to the Paralegal Voice. This is the time of the show when I share with you some news and also some career tips for you. The news that I have for you today is all wrapped up in the career tip. And I have observed legal professionals through the years that I have been involved with this career and there are many who are disorganized. And I think that we are also busy that we have a difficult time being organized and keeping our workspace in order. And a lot of that is because we have so much to do. We get our work in layers, we don’t know where to start. We think that we don’t have time to take care of that. And so what do they say? Paralegal mentor to the rescue. I’ve prepared a manual, it’s titled Simple Strategies for Organizing Your Workspace. And I have lots of ideas in there that will help you make this easier for you and I do tell you how you have time and what steps you should take and when you should take those. So I hope you will check that out. You can find that at Paralegal Mentor.com/Simple-Strategies-For-Organizing-Your-Workspace. That’s it, dashes all the way. Anyway, that will help you kick clutter, kick up the decision making process, and kick some bad habits, so check that out. And that’s all that I have for you today. It’s time for us to sign off. If you have any questions about today’s show, please email them to [email protected]. And also, don’t forget to check out my blog, Paralegal Mentor Blog. And the resources that I do have available for you at my website, ParalegalMentor.com. Everything is designed to help you move your career in the right direction, and that’s forward. This is Vicki Voisin, thanking you for listening to the Paralegal Voice, and reminding you to make your paralegal voice heard.

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