Climbing the Disability Mountain

There are times in life when you gotta crawl

Lose your grip, trip and fall

When you can't lean on no-one else

That's when you find yourself

I've been around and I've noticed that

Walking's easy when the road is flat

Them danged ole hiils'll get you every time

Yeah, the good Lord gave us mountains

So we could learn how to climb

~Mountains
Lonestar

I have to admit that I would not have known that Sunday, July 26, 2015, was the anniversary of an important piece of legislation if I had not quickly glanced at headlines last week. Twenty-five years ago, when President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law, I probably did not think much about it even though I was in law school at the time. Even now, we may not notice it, but the ADA is all around us.

Twenty-five years ago, if you asked me about the ADA, I would have said that it had to do with putting in wheelchair ramps and elevators, and making sure that there are enough handicapped parking spaces. That's just the tip of the iceberg.

According to the website ADA.gov, the ADA "prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services."

Introduction to the ADA

A disability is "a physical or mental impairment that substantially limits one or more major life activities.”

The ADA has five sections, or "Titles." Today, we look at Title 1.

Title 1--Employment.  In basic terms, the ADA says that an employer cannot use a disability as a reason:

• not to interview or hire a disabled person;
• not to promote a disabled person;
• to pay a disabled person less than a nondisabled person in a similar position with similar experience; 
• to fire a disabled person; or
• to treat a disabled person different from other employees in a similar position, except for providing "reasonable accommodations" for the disability.

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

"Reasonable accommodations" are adjustments or modifications an employer makes so people with disabilities can do their jobs. 

In the workplace, an employer must make a reasonable accommodation for a qualified applicant or employee if it would not create an “undue hardship” on the employer’s business. Generally, the person with the disability must ask for the accommodations. The accommodations needed depend on what will help the individual do his or her job.

Common types of reasonable accommodations:

• make existing facilities accessible;
•  job restructuring;
• part-time or modified work schedules;
• acquire or modify equipment;
• change tests, training materials, or policies;
• provide qualified readers or interpreters; or
• reassignment to a vacant position.

Examples of reasonable accommodations:

•  A deaf applicant may need a sign language interpreter during a job interview.
•  An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
•  A blind employee may need someone to read information posted on a bulletin board.
•  An employee with cancer may need leave to have radiation or chemotherapy treatments.
•  An employee with lupus might need to sit on a stool, rather than stand, to reduce fatigue.

As usual, the devil is in the details:

• An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is something that is too difficult or too expensive for that particular employer.
•  An employer does not have to eliminate an essential function that is a fundamental duty of the position. A person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a "qualified" individual with a disability within the meaning of the ADA.
•  An employer is not required to lower quality or production standards to make an accommodation. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. 
•  An employer is not obligated to find a position for an applicant who is not qualified for the applied-for position.
•  An employer is not obligated to provide personal use items such as prosthetic limb, a wheelchair, glasses or hearing aids.
•  An employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs.

While the ADA has had a tremendous effect, advocates for the disabled point out that it cannot change everything. We cannot know what an employer is truly thinking, and it is hard to prove that an employer chose not to hire someone based on his or her disability. A recent Newsday article (Disabilities act has changed lives of millions 25 years after passage) stated:

A quarter-century after ADA's passage, joblessness among disabled Americans remains far higher than for other adults. Just 17.1 percent of people with a disability were employed in 2014, compared to 64.6 percent of those without a disability, according to the latest federal figures. 

Work is just part of a person's life. The ADA also provided rules for state and local government activities, public transportation, public accommodations and telecommunications relay services. I'll discuss those topics in the future.

The Last Word ... Maybe

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Obergefell v. Hodges

Majority Opinion by Justice Anthony Kennedy

You might remember that there were several states and organizations that suggested that the Supreme Court ruling in Obergefell v. Hodges was not official until after the 25-day period for requesting rehearing had passed. That period elapsed on July 21, and after waiting another week for any requests that had been mailed, the Court issued its final order yesterday.

See Same-sex marriage ruling put into formal effect for more information on the final order and a link to the final order.

To read my earlier blogs about the Obergefell decision, see Goin' to the Chapel and We're Gonna Get Married and Wedding Bell Blues.

Wedding Bell Blues

Before the risin' sun, we fly

So many roads to choose

We'll start out walkin' and learn to run

And yes, we've just begun

Sharing horizons that are new to us

Watching the signs along the way

Talkin' it over, just the two of us

Workin' together day to day

Together

~The Carpenters

We've Only Just Begun

When the Supreme Court announced its decision finding that same sex couples had the right to marry (Obergefell v. Hodges), reaction around the country was predictably mixed. 

The White House was lit up in rainbow colors to commemorate the ruling. There were public celebrations outside the U.S. Supreme Court building, and around the country. U.S. and rainbow-striped flags were unfurled. Same-sex couples rushed to apply for marriage licenses. Finally, same-sex couples had the same rights as heterosexual couples. They would be eligible for the same spousal benefits, privileges and responsibilities that heterosexual couples had through marriage. Supporters of same-sex marriage declared that it was "a great day for America!"

Not everyone celebrated the decision, however. Some objected on moral grounds. Others worried about clergy being forced to go against their religious beliefs to perform marriages for same-sex couples. Many challenged the right of five lawyers to decide the issue, rather than allowing the people of each state to determine the definition of "marriage" for their state. Still others accused the Supreme Court of rewriting the Constitution. Some lamented that the world was coming to an end. Others worried that the next step would be polygamy.

One side of the debate posits that the framers of the Constitution did not intend to sanction same-sex marriage. They extend the argument to include the Fourteenth Amendment, which was adopted nearly 80 years after the Constitution. The other side of the debate points out that the Constitution was intended to be a malleable document that could be adapted with time.

Much of the same-sex marriage debate centers on the Fourteenth Amendment, which states that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Due process? Equal protection? What in the world does that mean?

The key phrase here is "equal protection." Merriam-Webster defines equal protection as "a guarantee under the Fourteenth Amendment to the United States Constitution that a state must treat an individual or class of individuals the same as it treats other individuals or classes in like circumstances." In relation to marriage, the Court read this to mean that same-sex couples who want to marry are a class of individuals who must be treated the same as heterosexual couples, another class of individuals, who want to marry.

The States Respond

Nearly one month after the Supreme Court ruling, the debate has not quieted, particularly in the following states:

Alabama--The Alabama Supreme Court responded to Obergefell by issuing an order suspending same-sex marriages in Alabama for 25 days to give parties time to file motions addressing the ruling. As the 25-day period passed, at least nine Alabama counties were refusing to issue marriage licenses to any couples, gay or heterosexual, according to a survey by The Associated Press. 

Louisiana--After the U.S. Supreme Court ruling in Obergefell, the Louisiana attorney general, Buddy Caldwell, said that nothing in the decision required the State to cease enforcing its same-sex marriage ban immediately. Gov. Bobby Jindal twice delayed the recognition of same-sex marriage by the Louisiana state government by waiting for lower courts to specifically rule on Louisiana's definition of marriage as between one man and one woman. However, as of July 6, all parishes in the Louisiana must issue marriage licenses to all couples.

Tennessee--Gov. Bill Haslam and Attorney General Herbert Slatery III said they would respect the Court’s decision, although they said it robbed Tennesseans of their voice and vote. Legislators in the State, however, are not as accepting. Some want the State to consider allowing state employees who object to same-sex marriage to refuse to serve same-sex couples. Others are planning legislation to protect pastors from being forced to officiate same-sex marriages, although neither state nor federal law requires clergy to officiate any wedding.

Texas--By far, the most resistant state is Texas. Texas Attorney Gen. Ken Paxton sent out a letter informing state officials that they had the option of not complying with the Supreme Court's ruling if they so choose. Sen. Ted Cruz claimed that the Supreme Court decision was only binding for the parties directly involved in the case. (This is simply wrong.) Cruz went on to suggest another Constitutional amendment that would make members of the Supreme Court subject to retention elections.

County clerks found various ways to avoid issuing marriage licenses, from suggesting that they needed to get paperwork in order to resigning, quitting or, in one case, retiring. One county judge created a form that same-sex couples would have to sign acknowledging that the judge does not want to conduct same-sex marriages and that the couple agrees not to discuss the topic of same-sex marriages with the judge before, during or after the ceremony.

And the rest--Officials in Arkansas, Georgia, Kentucky, Mississippi, Nebraska, North Dakota, Ohio and South Dakota begrudgingly accepted the Court's ruling, but made clear their disagreement with the Court. Many expressed the belief that the Court had overstepped its authority and that the issue should have been left to the states to decide. Several states claimed that the ruling was not immediately effective.

Religion

It should come as no surprise that many religious denominations oppose same-sex marriage. Among the religions formally opposed to same-sex marriage: Mormonism, Catholicism, Lutheran Church-Missouri Synod, the majority of Evangelical churches, Orthodox Judaism and Islam.

In recent years, some Christian denominations have voted to allow their clergy to perform same-sex weddings. This includes the Episcopal Church, the Presbyterian Church and the Evangelical Lutheran Church. In addition, the Conservative and Reformed Judaism Movements sanction same-sex marriage.

Other religious groups, including my own, are sharply divided on the subject of same-sex marriage. United Methodist Clergy have been making headlines for violating church rules by performing same-sex marriage or civil union ceremonies since the late 1990s. However, at its most-recent General Conference in 2012, the worldwide church voted to continue its stance on homosexuality and same-sex marriage. For more on the debate within the United Methodist Church, see How the Supreme Court Gay Marriage Ruling Could Destroy the United Methodist Church and Will Same-Sex Marriage Split the United Methodist Church? 

Goin' to the Chapel and We're Gonna Get Married

He is now to be among you 
at the calling of your hearts

Rest assured this troubadour 
is acting on His part.

The union of your spirits, here,
 has caused Him to remain

For whenever two or more of you 
are gathered in His name

There is love, there is love.

~The Wedding Song (There Is Love)

Peter, Paul & Mary

Nearly a month ago, the U.S. Supreme Court ruled that same-sex couples have the right to marry in the United States. A majority of five justices found that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. 

The Right to Marry

This is not the first time that the Court has found that a specific group of people had a right under the Fourteenth Amendment to marry.

Loving v. Virginia (1967): In 1958, a couple of high school sweethearts left their home state and traveled to Washington, D.C., so that they could legally marry. After they returned to their home in Virginia, both were arrested for "cohabiting as man and wife, against the peace and dignity of the Commonwealth." Subsequently, Richard and Mildred Loving pleaded guilty to violating Virginia's law prohibiting interracial marriage. Their one-year jail sentence was suspended for 25 years on the condition that they left the state, which they did.

Forty-eight years before the U.S. Supreme Court found that same-sex couples have a Constitutional right to marry, the Court (in 1967) legalized interracial marriage in a unanimous decision. At the time, the subject of interracial marriage was nearly as contentious as same-sex marriage is today. In fact, 17 southern states had laws prohibiting interracial marriage.

Where are they now? Mildred Loving Obituary

Baker v. Nelson (1972): In 1970, two University of Minnesota gay student activists, Richard Baker and James Michael McConnell, applied for a marriage license in Minneapolis. County Court Clerk Richard Nelson refused to issue a marriage license to a same-sex couple. 

In its decision upholding the county's refusal to issue a marriage license to the couple, the Minnesota Supreme Court focused on the function of marriage to procreate and rear children within a family. They distinguished the Loving case saying, "But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

When the couple appealed to the U.S. Supreme Court, it, in effect, upheld the Minnesota court when it issued a one-sentence opinion dismissing the case  question"for want of a substantial federal."

Where are they now? Richard Baker and James McConnell

Zablocki v. Redhail (1978): A Wisconsin statute required non-custodial parents who wanted to marry to get a court order to receive a marriage license, and the marriage license would not be issued if the non-custodial parent owed child support. The U.S. Supreme Court found that the statute violated the Fourteenth Amendment's equal protection clause. 

Turner v. Safley (1987): A Missouri prison regulation that prohibited inmates from marrying without the permission of the warden was unconstitutional. Once again, the Court said that the right to marry is a fundamental right protected by the due process clause.

Same-Sex Marriage: Windsor and Obergefell

United States v. Windsor (2013): In 1996, the Defense of Marriage Act (DOMA) became law. DOMA defined "spouse" and its related terms to signify a heterosexual couple in a recognized marriage. Thus, DOMA meant that the federal government would not recognize a same-sex marriage. 

In Windsor, the Court found DOMA's definition of marriage unconstitutional under the Fifth Amendment Due Process Clause's guarantee of equal protection. The federal government must recognize same-sex marriages that have been approved by the states.

Obergefell v. Hodges (2015): Obergefell did for same-sex marriage what Loving v. Virginia did for interracial marriage. It held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. 

The majority opinion, written by Justice Kennedy, explained that same-sex couples sought the same privileges and responsibilities that heterosexual couples sought through marriage. They described the history of marriage as one of evolution and change. Plus, they looked at previous cases, particularly Loving, where the Court found that a particular group of people had a right to marry under the Fourteenth Amendment to the Constitution.

The justices who disagreed with the decision did not voice opposition to same-sex marriage, but instead accused the majority of taking the decision-making power out of the hands of the people. Justice Scalia called the decision a "threat to American democracy." Justice Thomas said the decision was contrary to the intent of the framers of the Constitution, and Justice Alito said that the decision would be used to vilify Americans who are “unwilling to assent to the new orthodoxy.”

Life, Liberty and the Pursuit of Happiness

Let freedom ring, let the white dove sing
Let the whole world know that today
Is a day of reckoning.
Let the weak be strong, let the right be wrong
Roll the stone away, let the guilty pay
It's Independence Day.

~Independence Day
Martina McBride

Today marks the 239th birthday of the United States. Or does it? If you look at American history, there are any number of days that could have been marked as the birth of our country.

The tension between the American colonies and Great Britain started long before Thomas Jefferson drafted the Declaration of Independence. Although King George III is generally blamed for the taxes imposed on the colonies, Parliament also had an active role passing various acts that taxed goods and threatened the freedom of the colonists.  In 1764, after the end of the French and Indian War (called the Seven Years' War in Europe), Parliament passed the Sugar Act to offset the war debt brought on by the French and Indian War and to help pay for the expenses of running the colonies and newly acquired territories. This was followed by the Currency Act, which prohibited the colonists from issuing any legal tender paper money; the Stamp Act, requiring published documents to be printed on stamped parchment; the Quartering Act, which required colonists to house British troops and supply them with food; the Declaratory Act, stating that the British government had total power to legislate any laws governing the American colonies in all cases whatsoever; the Townshend Revenue Acts, imposing a new series of taxes on the colonists to offset the costs of administering and protecting the American colonies; and the Tea Act, which was the impetus for the Boston Tea Party on December 16, 1775.

Even when the First Continental Congress convened on September 5, 1774, most of the states were not looking to completely break ties with the British Empire. They merely wanted Parliament and the King to quit imposing taxes on the colonies when they were not represented in Parliament. By the time the Second Continental Congress convened on May 10, 1775, the mood had changed. In the interim, the first shots of the American Revolution were fired on April 19, 1775, but even the "shot heard 'round the world," didn't signal that a new country had been born. Independence was not declared until more than a year later.

The Second Continental Congress acted as the provisional government of the 13 colonies. It appointed Gen. George Washington commander in chief of the American army on June 15, 1775. It issued and borrowed money, established a postal service, and created a navy. Although the Congress initially posited that the Americans were struggling for their rights within the British Empire, it gradually cut tie after tie with Britain until separation was complete.

On June 7, 1776, when the Continental Congress met at the Pennsylvania State House (now known as Independence Hall) in Philadelphia, the Virginia delegate Richard Henry Lee introduced a motion calling for the colonies’ independence. Amid heated debate, Congress postponed the vote on Lee’s resolution, but appointed a five-man committee–including Thomas Jefferson of Virginia, John Adams of Massachusetts, Roger Sherman of Connecticut, Benjamin Franklin of Pennsylvania and Robert R. Livingston of New York–to draft a formal statement justifying the break with Great Britain.

On July 2, 1776, with New York abstaining, the Congress “unanimously” resolved that “these United Colonies are, and of right ought to be, free and independent states." According to the History Channel, John Adams believed that July 2nd was the correct date on which to celebrate the birth of American independence, and would reportedly turn down invitations to appear at July 4th events in protest. Ironically, Adams was one of three U.S. Presidents to die on July 4th.

There were also dates later in 1776 that might have been celebrated as the birth of the United States. It wasn't until July 9, 1776, that the action of Congress was officially approved by the New York Convention. On July 19, 1776, Congress was able to order that the Declaration be engrossed (written neatly on parchment) and then signed by the Congress.

Contrary to popular belief, the Declaration was not signed on July 4, 1776. It was actually signed on August 2, 1776. As President of the Congress, John Hancock was the first to sign. The other delegates arranged their signatures according to the geographic location of the states they represented. Eventually 56 delegates signed, although all were not present on August 2.  A few delegates who voted for adoption of the Declaration on July 4 never signed the document, and some who signed the document were not present to vote on July 4th.

The fight for American Independence was not won on just one day in 1776. The war would continue for more than five years. British General Cornwallis surrendered to General Washington in October 1781. The Treaty of Paris was not signed until 1783. The U.S. Constitution was ratified in 1787. George Washington became our first President in 1789. Any one of those events might have been considered the birth of the United States. However, July 4, 1776, was the day that our founders formally declared themselves to be independent, and that's why we celebrate our independence on July 4th.

July 4th Trivia

Benjamin Franklin (age 70), who represented Pennsylvania, was the oldest of the signers. 

Edward Rutledge (age 26), of South Carolina, was the youngest.

Two future U.S. Presidents signed, John Adams (second President) and Thomas Jefferson (third President). Both died on the 50th anniversary of signing the Declaration (July 4, 1826). 

Another future U.S. President, James Monroe, died on July 4, 1831, becoming the third President in a row to die on Independence Day.

U.S. President Calvin Coolidge was born on July 4, 1872.

The Fourth of July become a legal federal holiday in 1870.