Merry Christmas

She Went To the Liquor Store!

She Went To the Liquor Store!

Is it my imagination, or have the holidays snuck up on us really fast this year? Halloween was just a week or so ago. Thanksgiving came and went in a flash. And now, I seem to have arrived at the edge of Christmas without warning. Usually, I have a month or so to complain about tacky lights and irritating music. Usually, I moan and groan about stores that prematurely deck the halls and malls with fussy kitsch.

But this year, I’ve hardly noticed! The timing seems fine. The lights and decorations are perfectly appropriate with the glaring exception of a neighbor who arranged a garish display of purple and pink centered around a big peace sign. Hey buddy. Ever heard of property values? As for shopping, our efforts at thoughtful personal gifts broke down and we got all the kids bottles of Bollinger for Christmas. Yes it lacked imagination. But which would you rather have, a book? Or a bottle of excellent Champagne? So what if they’re underage!

Oh I’m joking. They’re all grown up. One thing that hasn’t dropped off my annual list of holiday peeves is the commercials for jewelry. This year, I am most appalled by the ads for diamonds that are offered in weird colors and look like they came out of a gumball machine. The worst offenders are the “chocolate” diamonds that frankly, look like, well I don’t want to say the word in a family newspaper.

You know, diamonds are judged on purity, on clarity, on the remarkable fractal glint. They are gifts from Earth, from Nature herself, forged over millennia, extracted with great effort and cut, refined and polished by master artisans. So you take this precious gem and deliberately turn it a hideous shade of brown? Sorry. Who thought of that? What’s next? A string of hand-picked pearls dyed hot pink? Blue dye in the Bollinger?

And then there’s the mild, but still annoying, sexism of the whole “he went to Jarrod” theme, as if women are dolls to be adorned with trinkets or little girls to be enchanted by a glittery bauble. A sub-theme here is the notion that the clueless guy has to be educated or else he might buy his wife a chain saw.

Let’s just say that the gender stereotypes abound during the Christmas season.  For the record, none of this rant should be interpreted to mean that I personally would reject a gift from Jarrod if Mel is inclined to wander over there. Just don’t get me colored diamonds.

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What’s The Matter With India?

I’m sorry to toss bad news into our festive ambiance, but a couple of weird things happened earlier this month. First, the Indian Supreme Court, or whatever the highest court is called, reinstated the nation’s sodomy laws. Yes, you read that right.

Then, after several dozen same-sex couples got married in the Australian capital city of Canberra, the nation’s high court struck the local marriage equality law, declaring that marriage in Australia was a federal institution. Either the whole country legalizes marriage, or no one does. Thus died the Australian Capitol Territory marriage law that went into effect for a few days before the High Court ruled.

I can hear some of you thinking, so what? Who cares what happens in Canberra or Calcutta? There’s a part of me that also ignores news from distant lands, but still. Throughout this extraordinary last few years in the United States, our victories have arrived against a background of global progress. As we’ve celebrated marriage in Maine and Minnesota, we’ve been dimly aware that marriage has also been legalized in Uruguay, or some part of Mexico, or France or the U.K.. Gay rights may advance beneath our radar in foreign climes, but it’s still pleasant to sense the growing trend in the right direction.

All the bad things that have happened in the world seem located in Africa, or the Middle East or Russia. Subconsciously, I simply figure that these areas will catch up eventually. But India? Really?

Laws in India against unnatural sex were codified in the mid-1800s by whatever British overseers were assigned to such tasks. Like other sodomy laws, they evolved into a weapon for antigay police or officials, but it seemed they lost their teeth back in 2009, when a lower court ruled that they could not be enforced except in cases of rape or underage sex. That ruling, out of the Delhi Supreme Court, was not appealed by the federal government. But into the breach leapt a group of right wing religious types to send the issue to the nation’s top jurists.

It was universally assumed that the High Court would go along with the lower court, but instead the justices came out with their own version of Bowers v Hardwick, right down to a comment from one justice who said he doesn’t know any gay people. The Court said basically that the law is not a big deal, and that homosexuals don’t really constitute a class deserving of constitutional attention. If the law is that bad, they said, then it should be overturned through the political process.

The good news is that many of India’s parliamentary leaders were also pretty shocked by the decision, and a proposal to repeal the sodomy law will likely be presented for debate before too long. That said, who knows the inner workings of the Indian Parliament? Not me, but my impression is that it’s neither a bastion of liberalism nor a model of comity. Will the sodomy repeal languish as other issues take precedence?

The bottom line is that these two reversals, one after another, remind us that we’re not done. We’re not done in the world, and we’re not done here at home, where a setback could strike just as easily. It’s a warning against complacency.

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Guarding Georgia

I always manage to ignore warnings against complacency, don’t you? There’s something so enjoyable and relaxing and pleasant about complacency. And what’s the alternative? Worry, anxiety, Plan B, wariness, pessimism. That’s no fun. And surely not during the holidays!

Here’s some good news. You know those antigay states that were insisting that members of their national guard could not sign up for same-sex marriage benefits unless they traveled to a federal facility? They’ve all dropped their stubborn defiance and agreed to, well, follow the law as articulated by the Supreme Court and the Defense Department.

State national guards are basically branches of the federal government, so it matters little what Georgia or Texas thinks of marriage equality. Nonetheless, these and some other states tried to sidestep recognition of same-sex marriages by refusing to process paperwork for married gay guards, despite stern warnings from Chuck Hagel and company. Bottom line: they’ve all caved. Ha!

And one of those pompous little Christian business owners got shot down by an administrative judge in Colorado, who ordered Masterpiece Cakeshop to suck it up and stop discriminating against gay wedding clientele. The Denver bakers insisted that they would be happy to make a birthday cake for a gay man or woman, but drew the line at weddings or commitment ceremonies because they did not want to violate God’s rules and regulations. (Cue: loud thunderclap)

The judge noted that the bakers operate a public establishment, subject to state antidiscrimination law, and that neither a claim of artistic free speech or religious expression could exempt them from a general, secular statute. The bakers cannot become a law under themselves; they cannot violate the rights of gay customers and parade their prejudice in the trappings of faith.

Good. I really hate this line of “defense” against gay rights laws. And I long to see other mean-spirited entrepreneurs get their comeuppance at the hands of thoughtful judges.

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Big Deal Over Big Love

So, I have to take issue with the headline writers who have recently proclaimed that a federal judge in Utah “struck down polygamy laws.” I mean, come on! Indeed the judge ruled against a bizarre statute that banned “religious cohabitation.” As far as I understand it, you could live with six or seven roommates in Utah, but not if you considered yourselves a polygamous household. At the same time, the judge also made clear that you can only have one legal marriage. By rights, the headlines should have read: “Judge Legalizes Large Households.”

In other words, polygamy laws are alive and well in Utah, but you wouldn’t know it from the reaction by our friends on the Other Side. “We told you so! First same-sex marriage, and now…polygamy! Everyone scoffed at the idea of a slippery slope. And here we go, sliding off the cliff!” I don’t know if conservatives just haven’t bothered to look at the details of the case, or whether they’ve cynically turned it into a deceptive talking point, but it’s bothersome.

Speaking of polygamy, I read another dark warning from the Family Research Council about the threat of same-sex couples getting married twice, once to a same-sex spouse, and subsequently to an opposite-sex spouse. It seems that this might be possible under the laws of states that do not recognize gay couples, and in fact, the Attorney General of North Dakota recently wrote that a married gay spouse would have the right to enter a straight marriage in his state without getting a divorce. Since he or she would not be considered married to begin with, it would be perfectly legal to apply for a straight license and check off the box marked “single.”

I’m not sure what the writer was worried about. Did she want North Dakota to recognize the gay marriage and preclude the straight one? Is she worried that the straight couple might have problems down the road if they move to a state that recognizes the first marriage? Here again, the headline on this story read: “Legal Opinion: Same Sex Marriage Could Lead to Polygamy,” although it’s not clear how this horrific descent might be navigated.

Let’s be clear. The patchwork of marriage policies across the country will create numerous complications. At the same time, I don’t think we have to devote much attention to the many gay couples who break up and run off to the Red States with their straight paramours.

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The Unbearable Lightness of Baker

What else. I have some news about Methodists. Spike that. And a Pennsylvania official has asked the Third Circuit to rule on whether the 1972 same-sex marriage case of Baker v Nelson is a legitimate Supreme Court precedent. Hmmm. Now that’s an interesting subject.

Oh stop. It really is. Our foes in the legal fight for marriage cling to this forty-year-old one-liner from the High Court as if to a branch that is saving them from falling into a canyon. Yes, back in the day the Supremes dismissed a marriage case from the Minnesota Supreme Court “for want of a federal issue.” In other words, the Court refused to review state marriage laws based on the idea that marriage was a state issue. The justices heard no arguments and read no briefs. The Minnesota court had of course refused to allow a same-sex marriage, so, to evoke Stein, there was no there there.

Our opponents would have you believe that this means the Supreme Court has already ruled on the issue of same-sex marriage in a binding precedent that should stand for all time. Never mind that the idea of same-sex marriage was nothing short of ludicrous back in 1972, a time when homosexuality was a psychiatric disorder and sodomy laws ruled the land. Never mind that the nation has since been transformed, that real binding gay rights precedents have since been articulated, that marriage is now legal in over a dozen states, and that there is no question that the rights of marriage are a legitimate focus for scrutiny under the federal Constitution.

Indeed, the very dispute over whether or not Baker v Nelson has judicial stature should be moot. But still, the citation pops to the surface of every antigay brief. In this case, a federal judge in one of the Pennsylvania marriage cases (there’s also a state case) ruled that the subject matter was properly in federal court, notwithstanding Baker. The state now wants to put the merits of the marriage suit on hold while it scurries up to the Third Circuit to resolve this faux question of law. Personally, I’d like to see Baker properly trashed by a federal appellate court. But it’s still absurd.

Merry Christmas!

Corporations…Corporations Who Love Corporations

GLBT Week in Review, December 4, 2013

BY ANN ROSTOW

 

Corporations…Corporations Who Love Corporations

 

Hello dear readers. The holiday GLBT news lull continues on its meandering drift towards Twelfth Night, and yet we are not completely becalmed. Indeed, the High Court has just accepted a couple of cases that may not directly involve gay rights, but will certainly have a major impact on our community’s legal position in the future. So much so, in fact, that I would have expected every GLBT newspaper, blog and website to cover this story with a rainbow blanket.

 

And yet? The blockbuster is ignored! But fear not. The San Francisco Bay Times will never shirk its duty to keep you up to date on any and all gay-significant nuances in constitutional jurisprudence, and this time, there’s more than a nuance at stake.

 

Last week, the Supreme Court agreed to decide whether or not a for-profit corporation has the same right to religious expression as a person under the First Amendment. The issue at hand is the obligation to provide insurance for the full range of contraception under Obamacare, but it could just as easily involve the duty to welcome gay customers under a state antidiscrimination law.

 

The legal underpinnings are basically identical. Under a fairly recent law (passed in the early 1990s) the state may not infringe upon our religious comings and goings without a compelling interest, and even then, the trespass must be narrowly targeted towards that interest. Think drug laws that prevent you from your favorite peyote ritual. Or maybe our recent example of laws against handling venomous snakes in church--- a policy now under court challenge in Tennessee.

 

Certainly, no state authority could force you to take contraceptives, particularly those that might prevent an egg from implanting in the uterus after fertilization. But can the state force a company to offer health insurance that includes this option? What if the company’s officers think it’s wrong? What if the company’s objections are founded on religious beliefs? If the answer is no, then surely a company also has the right to ignore gay rights laws for faith-based reasons.

 

Maybe “surely” is too strong, because there’s also a case to be made that gay bias is not a valid “religious belief,” any more than racial prejudice can be justified by scripture. But let’s just say that a Supreme Court ruling that recognizes corporate personhood for the purposes of religious expression is not an opinion any of us would welcome.

 

Many commentators have scoffed at the notion that a corporation is a person, but corporations certainly have constitutional rights, and commercial speech has always been given First Amendment protection. That said, it’s always been far less expansive than the protection accorded to an individual speaker. That limitation appeared to be, shall we say, “relaxed” under Citizens United, the ruling that allowed corporations to pour zillions of dollars into the political coffers under the guise of Free Speech.

 

Given the precedent of Citizens United, some fear the Roberts Court will be only too happy to bend the rules for conservative companies like Hobby Lobby and their likeminded buddies at some Mennonite furniture company who are also suing for religious exemption to the Affordable Care Act. At the appellate level, Hobby Lobby won their case at the Tenth Circuit, while the Mennonites lost at the Third Circuit. Or maybe the reverse. Let’s just say there was a split between the two appellate courts which probably inspired the justices to accept review.

 

The core problem with laws that purport to lift religious expression high and above the secular rules and regulations that serve society as a whole is this: who decides what specific form of religious expression deserves a transcendent status? As I implied before, the notion that “gays are evil,” is not a tenet of any religion. It’s a traditional attitude that is linked to, but not intrinsic to, various conservative faiths.

 

Likewise, when is a feature of religious expression a deal breaker, like eating kosher meals, and when is it a superficial gimmick, like wanting to wear a kitchen strainer on your head for your driver’s license because you’re a Pastafarian? Don’t get me wrong. I love the Pastafarians, who worship the Spaghetti Monster and drink beer every Friday, but can they claim First Amendment protection? Indeed, they were created to test exactly this kind of conundrum, and in at least one case they have won the right to wear strainers for their license photos. That may have been in Europe, but the question remains. Who decides these things? Who picks and chooses between the Wiccans and the peyote guys, and the Christians and the Muslims, and all the people who might define their own personal religious mandates?

 

The dilemma is tough enough when individuals are involved, but throw in corporations and we’ll have a real nightmare. Meanwhile, I should mention that Britain’s highest court has just ruled against an inn keeper who wanted to ban gay couples from sharing a room. And I know you remember the case of the photographer in New Mexico who wanted to ignore state antidiscrimination laws and refuse service for a gay commitment ceremony. That case is on appeal to the Supreme Court, but the justices have yet to decide whether to take review. Two other cases are in various stages of litigation; a baker in Colorado and a florist in Washington. And I have no doubt that there are others on the list.

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All Aboard!

 

Speaking of the High Court, I read somewhere that they have accepted even fewer cases than usual for this winter, a decline that follows a trend of accepting fewer and fewer petitions in general. I’m sure they have their reasons, but then I wonder when I learn that they have just heard oral arguments on the trenchant question of whether or not an airline can dump a “platinum” VIP club member simply because he complains incessantly about every little thing.

 

The answer may be yes. Apparently airlines have a lot of control over their customer dealings. Frankly I don’t care whether the answer is yes or no. I only care whether or not they’re making the best use of their valuable time.

 

Actually, I do care. I sort of hope the whiner gets dumped. Apparently, he’s lodged 24 official complaints against Northwest airlines over the past eight months, and tried to demand undeserved discounts and other perks that go well beyond his platinum status. I hate people like this. Litigious, arrogant, and obsessed with petty accoutrements of success. Plus, he’s a rabbi! Isn’t there something in the Torah about this kind of frivolous nitpicking?

 

And what is it with these airline categories? Have you flown recently? Have you noticed that there’s a lengthening list of people who can board first? I think the kids still go first, or maybe the First Class passengers. But then come the platinum people, followed by the gold people, followed by the priority boarding people, followed by the special club people. Now, they’ve stuck active military people into the mix at some point, as well as people without carry-on luggage.

 

Yet everyone still hangs around in a big anxious crowd, waiting for their designation to be called so they can rush into the packed jetway the very first chance they get. Why not sit back and wait until most people are gone and then board? Are people afraid someone will take their seat? The specific numbered seat that is already assigned and printed on their boarding pass?

 

I may have previously mentioned the height of boarding mania. And that is the phenomenon of Southwest passengers who obtain an “A” pass and proceed to stand in the “A” line up to an hour before the plane is scheduled. Presumably they went to great lengths to get the early seating in order to make their trip a little bit nicer. But instead of taking advantage of a guaranteed position, they impose an added and unnecessary hardship on themselves, for what reason? In order to be three rows closer to the front? Is that worth an hour on their feet?

 

Would you give up a perfectly good Bloody Mary for that? I wouldn’t. Let alone the two or three that I could down if given sixty minutes in an airport bar. (There’s something about airports that nullifies all the rules on drinking.)

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Divorce, Gay Style

 

Moving right along, I see that a state court judge in Mississippi has denied a divorce to two lesbians who married in California in 2008. According to press reports, the judge seemed sympathetic to the women’s plight, but was hamstrung by the state’s antigay amendment that considers same-sex marriages void.

 

We have the same problem in Texas, where the state supreme court has recently heard arguments on two gay divorce cases, but where antigay blowhards, um, lawyers from the Attorney General’s office, insist our marriages are also void from the start. There’s another divorce case pending in Kentucky, and you may recall that Wyoming surprised everyone a couple of years ago by actually allowing a gay divorce to proceed. That said, unlike Mississippi, Texas and Kentucky, the Brokeback State has no amendment defining marriage and no statute that specifically bars recognition of same-sex marriage.  

 

There are a number of legal side streets in the fight for marriage equality that can theoretically lead us to victory, and divorce is one of them. Our main routes, of course, are to argue our constitutional rights, either to marriage under the Due Process Clause, or to equal treatment under the Equal Protection Clause. But we now have dozens of active cases around the country, and several of them target tangential issues.

 

Can we divorce? Can we sue for loss of consortium if our civil union partner died from malpractice before we had the right to marry? Even if we can’t marry in our state, can our out of state marriage be recognized? Can it be recognized for the purposes of a death certificate? How about for a death benefit from a private employer?  

 

Some of these indirect suits may turn out to be detours towards equality. But others may be shortcuts, and still others may serve to weaken marriage discrimination, even if they don’t defeat it completely. I thought it significant that long before we triumphed over Section 3 of the Defense of Marriage Act, federal bankruptcy laws were effectively allowed to recognize same-sex couples. Why? Because the process of disentangling joint estates was simply too cumbersome for bankruptcy court and not fair to the creditors either.

 

That change flew under the radar and it’s possible that many instances of marriage recognition will fly under the radar as well. A divorce in Wyoming. A death certificate in Ohio. A death payment in Pennsylvania. A state tax form in Missouri. These things add up.

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Can You Berra Nother Marriage Item?

 

Here’s a confusing situation Down Under. The Australian Capital Territory, a jurisdiction that includes the Australian capital of Canberra, approved a same-sex marriage law a couple of months ago, a law that was promptly contested by the federal government in a challenge to the highest court.

 

The six justices heard the case December 3, but the government did not request an injunction against the weddings, and none was ordered. As such, weddings are scheduled to begin December 8 under terms of the new law. Since the justices will not rule on the underlying question of marriage equality until December 12, it sounds as if gay couples in the capital will be able to get married for at least four days. There are something like 377,000 people living in the Territory, so I’d guess there could be several thousand gay couples.

 

And what will happen if the Court re-bans marriage? It’s not clear to me, ergo the use of the adjective “confusing” in the lead sentence.

 

Finally, I didn’t tell you about Croatia’s new anti-marriage law. Nor did I mention oral arguments on marriage in federal court in Utah, or a federal marriage case dismissed in Louisiana. And since my time is up, I will leave you with those intriguing bits of information. Croatia is particularly tantalizing, n’est-ce pas?

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arostow@aol.com