When It Rains, It Pours

GLBT Fortnight in Review, February 19, 2014

BY ANN ROSTOW

 

When It Rains, It Pours

 

Back in the day, before beluga caviar soared to a couple hundred dollars an ounce, I used to indulge. My father always bought me caviar for breakfast on my birthday, and I felt it was a worthy tradition. I love the stuff.

 

Fine golden caviar is beyond my resources at current prices, but I have fond memories of the tiny glass jar, the buttered white toast, diced onions, sometimes a minced egg. I would vary the combinations, some bites with everything, some with just caviar on toast, some big slathered pieces, some soldiers with just a touch. And then finally, I would run the toast around the oily jar, absorbing the last sensations before licking the container clean. I always wanted more.

 

So what’s the point? The point is that I feel as if the Gods of civil rights law have delivered a salad bowl of the best caviar in the world, and put it down in front of me with a soup spoon. Hell, they’ve tossed in a couple bottles of vintage Krug (maybe 1985) and a Cuban cigar. Lawsuits that used to stop the presses are routine. Opinions out of federal courts that once were unthinkable are dropping into our laps every fortnight. And it now seems clear, less than nine months after the High Court turned its back on the Prop 8 case, that the core issue of marriage rights will return to the justices next term.

 

Not five years from now. Not three years from now. And probably not two years from now. But likely in the next term with a decision in June, 2015.

 

Since our last communication, dear reader, the state of Indiana has effectively shelved its antigay marriage amendment for the next two years, a deliberate move that for all practical purposes will kill the effort.

 

Since our last column, a federal judge in Kentucky has ordered the Mint Julep State to recognize marriages from elsewhere, and a federal judge in Virginia has struck the antigay marriage amendment in the Lovers State. We have filed a marriage suit in Colorado state court, and two more federal cases in Alabama and Missouri along with a more expansive case in Kentucky.

 

The governor and the attorney general of Nevada have stopped defending their marriage ban at the Ninth Circuit, acknowledging that Nevada’s antigay amendment cannot withstand the heightened scrutiny that is now imposed on sexual orientation bias cases throughout the American west. (That new standard was ordered last month in the Ninth Circuit’s gay juror case. I told you all about it at the time, for God’s sake!)

 

That means that the Ninth Circuit will now put the tedious case against Nevada on a fast track. That lawsuit has been dragged down by procedural delays for well over a year, but now we might see some quick action. And thanks to the aforementioned level of scrutiny, we cannot lose a marriage equality case at the Ninth Circuit. (In fact, we can’t lose any gay bias case in the states that make up the Ninth Circuit’s jurisdiction.)

 

This is all in the last week or so!

 

I’ve already mentioned that the Tenth Circuit will speed through the Utah and Oklahoma appeals like lightening. Oral arguments are set for April, so we should have a ruling this summer. I also read that the Fourth Circuit will put the Virginia appeal on a fast track, but this news is so recent that I haven’t pinned down exactly what that means.

 

Advocates have also asked the Sixth Circuit to hurry the appeal of the Ohio case, where a federal judge ordered the Buckeye State to recognize same-sex spouses for certain purposes.   

 

The bottom line is that we should see two or more federal appellate rulings on marriage rights this year and the High Court will be obliged to review these decisions. Keep in mind as well that the justices will likely suspend any and all marriage victories until that have a chance to weigh in themselves.

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No Wiggle Room For High Court

 

You may recall that the Supreme Court only accepts a tiny fraction of the cases that present themselves for review. Court watchers have also observed the justices’ attempts to proceed slowly on marriage equality and gay rights in general, advancing our cause a step at a time, always careful to avoid issuing the type of major precedent that would foreclose national debate.

 

To everyone’s surprise, however, last summer’s vaguely written opinion in Windsor seems to have broken the dam despite Justice Kennedy’s best efforts. Instead of proceeding apace, we are rushing into a chaos of competing state standards, legal conundrums and political momentum.

 

In Missouri and Colorado, for example, state governors have decided that married gay couples may file joint state tax returns. It may not sound like a big deal, and it’s certainly a practical policy in view of our new obligation to file joint federal taxes. But here’s the thing. As opponents rightly point out, it’s against state law to recognize a gay marriage for any purpose. If you make an exception for taxes, why not for state pensions? Why not for divorce?

 

Oregon does not allow marriage, but it recognizes marriage from out of state. The couples who married in Utah during a short window of opportunity, are now married under federal law, but not recognized by Utah, even though they married at home. After that federal court in Ohio said the state must list same-sex spouses on death certificates, how can any other feature of wedlock be ignored? It’s crazy. There’s a conflict or a lawsuit in every state in America, and the Supreme Court will have no choice but to sort it out.

 

What’s the main driver for this inundation? Aside from the repercussions of the Windsor case, it’s a simple matter of math. It wasn’t long ago that only one state allowed same-sex marriage, November of 2008 to be exact. Then we had some progress in New England, as well as the marriage ruling in Iowa. But still, legal questions of marriage recognition across state lines remained theoretical, only because there were not that many traveling gay couples out there to run into problems.

 

In the last two years, however, we’ve added a zillion more marriage states, a journalism term for “I don’t feel like looking up the number.” Not only do we have a patchwork of state marriage laws, but we have a split between federal policy and most state policies, with numerous exceptions creating hairline cracks in the shaky edifice. And now we have thousands of married couples running around the country and moving from state to state. It’s unsustainable, which is why the High Court can no longer afford to take a cautious approach.

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Sam’s Club

 

So, Ellen Page of “Juno” fame came out of the closet. Good for her! I didn’t really think that the proverbial closet still existed for anyone outside sports and politics, but there you go.

 

And speaking of sports, of course the other big news this week is the decision by ex-Missouri Tiger Michael Sam to come out as gay on the verge of his NFL career. Here in our household, we do not care for Missouri, or anyone connected to Missouri. I married into a Jayhawk family, which includes some members who will drive across the Kansas City border in order to avoid paying sales tax to Missouri. No joke. Without going into the history of the pre-Civil War conflict, let’s just say that we still call people from Missouri “slavers.”

 

So imagine my surprise when my wife looked up from her iPad and remarked “good for Missouri.” Honestly, it was as if she announced that “Ted Cruz has a point,” or suggested a long weekend in Lubbock. It turned out that on the heels of Sam’s announcement, Fred Phelps dragged the remains of his Westboro Baptist Church family to Mizzou and took possession of street corner, where he and his gang held up their usual signs. In response, thousands of Missouri students took to the opposite side of the street in protest. The lines went on forever.  

 

Sam’s decision was courageous, but it was also pragmatic. He was openly gay, and any future employer would know his status. But nonetheless, he came out with style, and we are now on the verge of that Jackie Robinson moment in pro sports.

 

Yes, Jason Collins beat Sam to the punch. But after coming out last year, the journeyman hoopster has not been signed by any NBA team. People speculate that teams are avoiding Collins, not simply because he’s gay, but because they don’t want the “distraction” of the publicity that would follow him around. But it’s one thing to pass on a thirty-something veteran who may be over the hill. It’s another to reject one of the top 100 rookie prospects. Michael Sam will be drafted, and we will finally see what happens when you let a gay man into the locker room.

 

Considering what we’ve learned about what passes for camaraderie in the NFL, I’d say being gay is the least of his worries.  Some of those Miami Dolphins make a frat party look like dinner at Downton Abbey.

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Are We In Kansas?

 

While we’re close to the subject of Kansas, we had another mind bending development last week, when the conservative head of the Kansas senate killed an antigay bill because it went too far.

 

Kansas falls under the jurisdiction of the Tenth Circuit, ergo its fate will be decided this summer when we expect the appellate court will rule on the Utah and Oklahoma cases. As a result, panicked lawmakers in Topeka drafted an abomination that would basically allow any public establishment or individual contractor to refuse to do business with gay couples on religious grounds. Such a law would not pass constitutional muster, but red states pass laws like that all the time. Indeed, the house ate this legislation up like hot bacon.

 

Kansas, once purple but getting redder all the time, was expected to rubber stamp this law if only to show constituents that no federal judge is going to kick the Sunflower State around without a fight. This is not Bob Dole’s state anymore. It belongs to Sam Brownback and his ilk, conservatives who include senate president Susan Wagle. And yet. Surprise! There are limits. To everyone’s astonishment, Wagle announced that her Republican colleagues would not support discrimination, regardless of how much they believe in traditional marriage. The bill is dead.

 

There have always been limits. The reddest state would not jail gays or impound gay newspapers. But the limits seem to be getting closer, in a good way. First the Indiana legislature declined to gay bash. Now, it’s Kansas. There are other bills like this one lurking around, including one in Congress. May they share the same fate.

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Lose The Gum, Bro!

 

I made a command decision this morning to skip over the horrible homophobic goings on in Nigeria and Uganda. Ditto discussion of antigay policies in Russia. It’s too much. And plus, I already covered the Nigerian woman who kicked her gay cat out of the house last time around, so it’s not as if a provincial attitude colors every column.

 

As far as the Olympics are concerned, here are my impressions:

 

First, I thought the American snowboarder who won gold in slope style could have taken the gum out of his mouth on the podium and tried to be slightly more coherent. Second, I do not understand how NBC is running their coverage, because I keep seeing the same event over and over. I feel as if I saw the men’s short program five times. Also, Brian Williams keeps announcing results on the evening news that have not been aired in prime time.  Third, I felt badly for Bob Costas. That was gross. Fourth, there’s a maniac covering the laborious cross country skiing who gets hysterically excited when someone increases their speed by what seems to me an imperceptible degree. Fifth, I do not understand why some individual skaters select discordant music rather than beautiful lyrical pieces. It’s like they’re unnecessarily undermining their performance.

 

I don’t know. I’m sort of over it until the hockey finals and the women’s figure skating.

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arostow@aol.com

 

 

Pussy Non Grata

GLBT Fortnight in Review, February 5, 2014

BY ANN ROSTOW

 

Pussy Non Grata

 

I read somewhere that a woman in one of those homophobic African countries has tossed her cat into the streets, evicting him from her home due to his unnatural interest in other male cats. I was all set to research this item and deliver a detailed report. Here is prejudice in all its purity, unreasoned condemnation unleashed on an innocent animal who (if memory serves) had been a part of the household for years.

 

Sadly, we cannot afford to digress. Dark stories from the dark continent cannot take precedence over the 47 marriage lawsuits now pending in 24 states. The hapless cat, whether gay or straight or perhaps just “questioning,” cannot overshadow the news that Scotland’s parliament has legalized marriage. He cannot displace a story on Maine’s top court, which just ruled in favor of a transgender school girl who seeks bathroom access. Nor can he be allowed to distract us from the fate of California’s ban on reparative therapy, which could proceed to the High Court now that the full court of the Ninth Circuit has refused to rehear the matter.

 

I read that Coke had a gay male couple in one of its Super Bowl ads. I see that Mayor de Blasio is going to skip the St. Patrick’s Day Parade in a tip of the hat to New York’s GLBT community. There’s lots of news out of Sochi, and the Indiana House has passed another antigay marriage amendment in a move that may or may not actually work in our favor. So you see, the cat must wait, and in doing so, may move off our radar screen into the empty void where old news stories fade away like background radiation from the Big Bang.

 

But I feel so sorry for him! The seven-year old feline, named “Bull,” lives in Nigeria, where lawmakers recently enacted a ban on gay relationships and activism. We are all hoping that some kindly neighbor will overlook his purr-ient interests and welcome him into their home so that our gay cat is not doomed to a sad life cruising the dusty streets of Lafia. Also, a name change might be appropriate. How about “Bruce?”

 

Meanwhile, in related news, a short article on how to tell whether your cat is gay advises us to look for some tell-tail signs. Does he lick his nether regions in public? Does he wander away at night on mysterious trips only to return in the morning with a self-satisfied smirk? Does he demand to be taken to the musical “Cats?”

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Thanks But No Thanks

 

I was astonished to read in Tuesday’s New York Times that our favorite team of rivals, Ted Olson and David Boies, would like to take over the two marriage cases that are now racing through the Tenth Circuit, presumably en route to the High Court. Say what? These are the same two guys, backed by the same organization, who nearly crashed the gay rights movement with their naïve approach to marriage litigation five years ago.

 

Lost in the excitement of the Windsor ruling last June was the clear indication the Supreme Court would have ruled against us if they had accepted review of the merits in the Prop 8 case. (Fortunately, they voided the case on a technicality instead.) Even our allies at oral argument demanded to know how they could uphold the lower court without overturning bans on same-sex marriage throughout the rest of the country. The obvious implication was that such a sweeping decision was not an option.

 

When Prop 8 was first filed in early 2009, Olson and Boies told the press that they expected a quick run to the High Court, followed by an easy victory based on prior rulings by Justice Kennedy. Convinced by the constitutional arguments in favor of marriage equality, they had zero knowledge of the pitfalls, no sense of the strategies put in place by the gay civil rights lawyers who had been fighting for decades, and they seemed oblivious to the profound emotional barriers that still protect antigay bias throughout society and the courts.

 

We were saved by two men who bought us time: Judge Walker, who insisted on a lengthy trial, and Judge Reinhardt, who delayed the appeal for over a year with a question for the California Supreme Court, and who subsequently issued a narrow ruling designed to withstand High Court review. We also had the benefit of California’s decision to side with gay couples and the ensuing confusion over the status of the Prop 8 organizers who rose to the defense.

 

If the Prop 8 case had somehow risen to the Supreme Court in 2011 instead of 2013, and if there had been no problem with standing, the High Court would likely have ruled that states had every right to pick their own definition of marriage. We would have been set back by a generation.

 

Thankfully, that did not occur. And thankfully, our GLBT legal strategists succeeded in bringing a successful challenge to the Defense of Marriage Act to the High Court. Keep in mind, just as it was clear to experts that we would lose a Prop 8 challenge, it was equally clear that we were likely to win a DOMA challenge. That’s why the sudden appearance on the gay legal scene of two novices like Boies and Olson was alarming to say the least.

 

Don’t get me wrong. I like Boies and Olson and appreciate their support. But much as I’d appreciate two small children volunteering to clear the dinner table of china that’s been in the family for a century, I still want them well supervised. According to Tuesday’s Times article, the team is now angling for a leading role in the Tenth Circuit cases based on the absurd idea that they are better suited than our own legal advocates--- you know, the same incompetent group that won Romer, Lawrence, Massachusetts, and Windsor.

 

“The reason we were brought in,” Olson told the Times, “was the people in California who first contacted us were very concerned that lawyers would bring a challenge to Prop 8 that didn’t know how to take a case all the way to the Supreme Court, how to prepare it, how to build a foundation, how to present it, how to articulate the arguments.” But “the people in California” to whom Olson refers were not gay rights veterans, but clueless activists who had no idea what they were doing in the first place. The blind were leading the blind and those in our community with twenty twenty vision had to warn them off the cliff.

 

Olson and Boies are now arguing a federal case in Virginia, where oral arguments took place this week and where we expect another quick federal marriage ruling from an Obama-appointed judge. A second federal case is running on a parallel track in the Lovers State, this one launched by the American Civil Liberties Union. In a nice reversal, the Democrats who came to office last November have moved to our side of the fence and the state is now an ally rather than a foe. Stepping up to defend are several county clerks, represented by conservative legal activists.

 

In short, even though they seem poised for a significant win and a trip to the Fourth Circuit, they apparently want more. It’s not enough to litigate one of the most important marriage suits in the country. They must be in charge of the cases at the front of the pack (Utah and Oklahoma), the ones that seem most likely to reach the High Court and the history books. Would Olson and Boies have asked Thurgood Marshall to step aside during Brown v Board? I won’t answer that one.

 

Speaking of Utah and Oklahoma, both cases are coordinated and will be heard by the same three-judge panel. We’ll know the panel in late March or early April. Written briefs are being filed in February and March, and oral arguments are scheduled forApril 10 (Utah) and April 17 (Oklahoma).

 

Finally, do you remember the Ninth Circuit ruling in the gay juror case? Come on! It was only two weeks ago! Well, the decision instructed courts in the western U.S. to apply heightened scrutiny to cases involving gay bias. As a result, Nevada’s attorney general has announced that she will reevaluate her defense of Nevada’s ban on same-sex unions in the case that is now pending in the Ninth Circuit.

 

Normally, the Nevada case would be considered “ahead” of the Utah and Oklahoma cases if you use a race metaphor. But the Ninth Circuit has delayed that litigation for all sorts of reasons, allowing the Tenth Circuit cases to zip out of nowhere and jump to the front. Now, Attorney General Cortez Mastro’s new deliberation may slow the case even further. But in a good way.

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Ahead To The Past in Indiana

 

I feel obliged to flesh out the stories I mentioned at the top, beginning with Indiana. I haven’t done much reporting on the anomalous situation in the Hoosier State, where lawmakers have been tasked with trying to amend the state constitution to ban same-sex marriage just as the rest of the country is moving in the opposite direction. Why not? Well who wants to hear about it? No one. Plus, I was sort of hoping the legislature would just drop the whole thing and slink away.

 

The problem for Indiana is that amendments must pass in two subsequent two-year sessions. Since the previous legislature passed an antigay amendment, the current gang feels compelled to follow through. Last week, however, the house passed an amendment that leaves civil unions intact, a discrepancy that would hit the reset button on the whole process and require the next legislature to approve the newly phrased amendment. If the senate agrees with the language, the whole thing is shoved off for another two years, which might be the easiest solution.

 

In Maine, the high court has ruled that the state’s ban on gender identity discrimination means that a young transgirl cannot be barred from the ladies room at her school. The law cannot be construed to mean that the average citizen can simply announce that he or she feels more comfortable in the bathroom of the opposite sex, wrote the court. But nor can obsessive fixations on the sanctity of bathrooms (my words) be used as an excuse to discriminate against someone who has transitioned.

 

Indeed, obsessive is the correct description of the bathroom defenders who imagine burly lumberjacks peeing in the sinks next to delicate flowers of femininity adjusting their lipstick and trying to avert their eyes. In most places, there is no actual law against using the other bathroom. And yet, women have stuck to the ladies rooms and men have kept to the mens rooms all the same with the possible exception of those annoying situations when ten women are in line and no one is using the other facility.

 

As for the notion that a child molester could run amok in the girls room, this scare tactic presupposes that sexual predators have a deep respect for a nonexistent law that currently prevents them from entering any bathroom at will.

 

And above all, in keeping with the gender comity that now keeps us all using the sexually correct bathroom, what would we think if some law suddenly required transmen to use the ladies room and transwomen to use the mens room? Now there’s a law that could produce the lumberjack scenario, although the peeing in the sink was an unrealistic embellishment.

 

At any rate, the question at hand wasn’t a bathroom law, but a discriminatory school policy. Still, this parade of horribles marches through every debate on transrights as it did in this case, and the Lobster Court got it right.

 

As for the Coke ad, I missed it. I had the Super Bowl on, but I paid scant attention. My mild dislike of the Sea Hawks in combination with my vague affection for Peyton Manning could not overcome the sheer boredom of a sloppy blowout.

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arostow@aol.com