Barack Says, Take One Big Step Forward

GLBT Fortnight in Review

BY ANN ROSTOW

Barack Says, Take One Big Step Forward

President Obama has added sexual orientation and gender identity to the list of groups that have been protected against discrimination by federal contractors since the Nixon years. Federal contractors employ about a fifth of the nation’s workforce, some 28 million people, so the move is significant.

GLBT groups have been pressuring the POTUS for this executive order for some time now, and President Obama announced his plans to sign such an order several weeks ago. After the High Court’s annoying, and potentially dangerous, Hobby Lobby ruling, a large group of our adversaries began mewling about this proposed executive order, begging the President to add a bunch of extra religious exemptions that would have turned this important new policy into a meaningless gesture. Happily, Obama declined to do so, although a few Bush Two exemptions still remain for churches and some other employers. Most importantly, however, there are no ridiculous exceptions for, let’s say, private companies run by religious nutcases.

It’s critical to note that over the last two decades, corporate America has been something of a gay rights juggernaut. The vast majority of Fortune 500 companies already ban sexual orientation discrimination, as do 86 percent of the top 50 federal contractors, which in turn represent half the total contracted business of the U.S. government. As for trans bias, without going into detail, there is reason to argue that gender identity is already protected under federal law based on court interpretations of Title VII’s ban on sex discrimination.

But here’s the thing. There’s a reason for the old expression “don’t make a federal case out of it.” Yes, trans bias has increasingly been recognized as an offshoot of the sex bias that is impermissible under Title VII. But who wants to file a lengthy, expensive federal lawsuit? Under the executive order, any future problems will be resolved under established Labor Department guidelines. Better yet, companies doing business with the United States will be on notice that discrimination based on gender identity will be a deal breaker.

In short, the executive order is a step ahead for gays and lesbians, but a giant step ahead for transgender men and women. In a second order, Obama also banned trans discrimination in the federal workforce. Bill Clinton had earlier added sexual orientation to the protected classes of federal employees.

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Is It Finally the End a ENDA?

Meanwhile, almost all of the main LGBT groups have now backed away from the Employment Nondiscrimination Act, realizing en masse that this weak bill could actually do more harm than good for GBLT workers. If ENDA’s religious loopholes were to become embedded into federal law, GLBT discrimination would not just be outside the law as it is now, it would be legitimized; etched into the books themselves.

Then, when you factor in the possible down side of the Hobby Lobby decision, which allowed private companies to insist on religious accommodations, the prospect of widespread GLBT discrimination under ENDA loomed even larger.

We know that ENDA is not going anywhere in this Congress anyway. If we’re going to fight for a losing cause, we might as well fight for a strong losing cause rather than one with fatal flaws. Above all, in this day and age, we should be fighting to include sexual orientation and gender identity in existing federal law rather than carving out a special stand-alone bill, one that can be manipulated to isolate us against the rules that govern every other marginalized class.

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Hardback Choices

There’s a slew of marriage news this week, which combined with the nondiscrimination order makes for a fairly tedious, albeit positive, column. I was excited to see a headline about Tom Cruise gay rumors, but unfortunately, like Oakland, there was no there there. 

I think that quote is unfair to Oakland, personally. But maybe there was less there there back in the day.

I also read about a double gay murder in Seattle, but although it would have served as a change of pace from policy and law, I found the story depressing.

What’s a girl to do? Do any of us even care about Tom Cruise to begin with? I have an unpleasant impression of the man, and I hate that he was cast as one of my favorite fictional characters, Jack Reacher. Reacher is big. He is strong, enigmatic, unassuming, yet a champion of the underdog. Cruise seems to be small, insecure, controlling and, ironically, easily led. The anti-Jack Reacher, if you will.

Speaking of reading, Mel and I went to a river cabin for a couple of days last week and I took along Hillary Clinton’s new book as my only reading material. I regretted this at once, sitting on a cool river beach watching Mel fish with this giant tome in my lap and a couple of Mexican beers.

Dutifully, I waded through the first chapter and to my surprise found myself quite riveted by the rest of it, which I finished in two days. Embarrassingly, the reason I liked it so much is that it filled in the many gaps in my knowledge of recent international events. Yes, I vaguely remembered that Chinese guy who fled to the U.S. embassy, various captured hikers, pissing contests with Iran, our NATO led air attack on Libya, etc. etc.. But beyond the superficial facts, I was fairly oblivious. And I certainly had no knowledge of the inside details.

I also underestimated the role of Secretary of State, which I guess I thought consisted of flying around, having talks, repeating official U.S. talking points, going to events and running a big bureaucracy. Of course the book was designed to show Clinton in a good light, but it really really succeeded! Now I’m afraid that half the problems around the world are due to John Kerry, because Clinton would have come up with last minute heroics to defuse every situation and flip it around to our favor. Like Tom Cruise and Scientology, I’ve been seduced into the cult of Clinton. Anyway, I recommend it. Seriously. It’s also well written.

I gather some GLBT activists are annoyed with Hillary, who dallied around before finally coming out in favor of marriage equality. Listen, I have done my share of condemning wishy washy politicians in the past. And yes, a lot of our allies spent a lot of time with their toes in the water before joining us. But come on. They’re all swimming now. The Democrats, I mean.

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Hmm. Now What Shall We Talk About?

Okay, Marriage. Here are the top headlines:

First, the state of Utah has decided to forgo asking for a full court review of the Tenth Circuit’s marriage ruling, and appeal directly to the High Court. This increases the likelihood that the Supreme Court will rule on marriage next summer. It’s great news.

Second, the Tenth Circuit issued a 2-1 ruling striking the marriage ban in Oklahoma, as expected.

Third, various clerks in Colorado, which is covered by the Tenth Circuit, decided to offer marriage licenses based on the fact that their governing federal appellate court had ruled in favor of equality. In addition, a state court judge in Denver ruled that the state marriage ban was unconstitutional, but put his ruling on hold. That did not stop Denver clerks from issuing licenses, which they proceeded to do until the state supreme court told them to stop.

I gather that other Colorado clerks are continuing to issue marriage licenses to same-sex couples, but to be honest, the entire situation in Colorado now confuses me.

Fourth, a state judge in Monroe County, Florida, legalized marriage for the Key West area, but also stayed his ruling.

Fifth, the Supreme Court has put a stay on a federal court ruling that ordered Utah to recognize all the marriages that took place during the three week window of opportunity last winter. Those marriages were recognized by the federal government, but not by the state.

Sixth (I told you there were a lot of marriage headlines), the U.S. of Appeals for the Seventh Circuit seems poised to combine the Indiana and Wisconsin cases and move directly to a review by the entire court. This would not be good. Of the ten active judges on the court, seven were nominated by Republicans and three were nominated by Democrats. One of those Republicans, the venerable Richard Posner, defies pigeonholes and is arguably on the side of equality. I’m not sure about the others, but let’s just say that it might be a heavy lift to get the full court on our side.

The court has yet to decide what to do, but suspiciously, the court cancelled previously scheduled oral arguments in order to discuss whether or not to skip over the usual three-judge panel and go straight to the full bench.

Please forgive me if I’ve forgotten anything. At this point, I’m waiting for the Fourth Circuit to rule on the Virginia case. Next month, we have a big day of oral arguments before the Sixth. In September, we’ve got oral arguments before the Ninth. Who knows what’s happening in the Seventh? And the Fifth Circuit is straggling along like a toddle ordered to leave the playground. The timeline won’t really matter once Utah petitions the High Court and once the Court decides whether or not to dive in.

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SCOTUS Won’t Duck

Speaking of the High Court and marriage equality, I have read a number of articles speculating about whether or not the Supremes will accept a marriage case for review this year, or whether they might not wait until several appellate courts have delivered their opinions. I even heard a legal correspondent suggest that the whole issue of marriage equality might be settled in a piecemeal fashion, as the various appellate courts rule one by one in our favor.

Say what?

I suppose the High Court could have ducked the Tenth Circuit if we had lost. After all, there are other cases in the pipeline, and our loss would have maintained the status quo in that jurisdiction.

But we won!  If the High Court does not accept review of our victory that means marriage equality quickly becomes the law in Utah, Oklahoma, Colorado, Kansas and Wyoming. If the High Court declines review, it means the justices think it’s fine for marriage restrictions to be unconstitutional in some states, and constitutional in others.

If they don’t accept review, they’d be hard pressed to put a stay on future appellate victories.

If they don’t accept the Tenth Circuit cases, and if they eventually accept some other case down the line, could they really rule that marriage restrictions are in fact fine, and that the aforementioned states have the right to re-enact their antigay constitutional amendments?  Yes, it’s true that the High Court often waits until there’s a split in the appellate courts. But if they do that in our cases, they will tie their own hands. Once a few appellate courts rule that marriage equality is a constitutional mandate, the High Court cannot reverse months, or maybe years, of what will then have become a fact of life in many parts of the country.

Believe me, I want the High Court to take the Utah case. In an odd way, I suppose it would also be good news if they did not, because it would uphold a victory, extend marriage rights, and make it virtually impossible to go backwards. But still, this is the Court we want to settle the issue.

The High Court is likely to get more conservative before it gets less so. We have to win marriage equality now, next June, next session. And unless I’m missing something, which you all know is highly unlikely, the Court cannot turn its back on this issue. Not even for one case.

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arostow@aol.com

Utah King To Me!

GLBT Fortnight in Review, July 8 2014

BY ANN ROSTOW

 

 

Utah King To Me!

 

My last column ended with a bang. No sooner had I filed the tedious accounting of GLBT civil rights news dribs and drabs than came news of marriage rights being granted by a federal judge in Indiana. With the help of the intrepid editors at the Bay Times, we added a little editorial note, and then five minutes later, Kaboom! A split 2-1 panel of the U.S. Court of Appeals for the Tenth Circuit ruled in our favor in the Utah marriage case, the first of its kind to make its way through the federal appellate courts, one rung down from You Know Who. (I am not counting the anomalous Prop 8 ruling in the Ninth Circuit.)

 

In the two weeks that followed, we’ve witnessed the now familiar chaos of a marriage window in Hoosierland, a window that was slowly shut by successive legal maneuvers. You can’t get married in Indiana at the moment, but quite a few couples managed to tie the knot before the opening closed. Indiana is part of the Seventh Circuit, so this case will join, or let’s say accompany, Wisconsin on its trip up the judicial ladder.

 

Also, let’s note that the Oklahoma marriage case was argued only a week after the Utah case, and before the same three-judge panel that just ruled in our favor. So where is that decision, we may ask? I vaguely recall that the Oklahoma case has some procedural complications, so maybe that accounts for the delay. But I actually suspect that the Tenth Circuit is waiting for me to file this column. Then, after about ten minutes, the panel will rub their hands together. “She’s all finished! Release it now!”

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Alito Makes Scalia Look Good

 

Meanwhile, the main story for this column has to be the Supreme Court’s Hobby Lobby opinion, and the related move by the court to issue an injunction in favor of the conservative Wheaton College.  

 

You know, readers. I’ve been following this case. I’ve followed a lot of cases that attempt to resolve the tension between religious freedom and civil rights. But down comes this major opinion at a time when I am on vacation, moving seamlessly between grandchildren play time and drunken partying with their parents.

 

Oh! I’ll just read that Hobby Lobby opinion. But wait. Here’s a naked four year old who wants to go on a jet ski! And I have to tell a story. And we need to find a juice box. And now there are tears! Accusations! She scratched me on purpose! Yet there is no mark. Where are their parents?

 

And later when the kids are sleeping. Who wants a cherry Marguerita? Who’s going star gazing on the lake? Here’s a giant bottle of wine being passed around the fire. Does anyone want to stop to read the Supreme Court opinion? I think not.

 

But I wasn’t worried. I’ve covered this area of law for twenty years. I’m no lawyer, but certainly, once vacation is done, I can read an opinion and some commentary and form my own trenchant analysis, right?

 

Wrong.

 

As I write to you, I have indeed read the opinion and the dissent, along with a bunch of other articles. It’s the job of a Supreme Court analyst to come up with the implications, superficial and profound, of every decision. But although I’ve often tried to be one, I’m not really a Supreme Court analyst, so I can tell you this: this opinion is an enigma. We have no way to know whether the decision is, in Justice Kennedy’s opinion, a narrow interpretation of a federal statute. Or whether, in Justice Ginsburg’s opinion, it’s a break down in First Amendment jurisprudence. We just don’t know. It could be either.

 

The opinion (which I’ll get to) was written by the man that I consider to be one of the very worst justices in High Court history. Samuel Alito is not just conservative, he operates outside the restraints of constitutional law itself. He makes stuff up. He twists stuff. He simply ignores important legal tests. He picks a decision and then backs it up with whatever complete bullshit sounds like it might make sense. He has done this before (check out his dissent in the Hastings Law School case) he has done it here, and he will no doubt do it again.

 

So let’s look at the Hobby Lobby case. It’s complicated to the max. As you know, Hobby Lobby is a private for-profit company that is run by conservative Christians. The owners did not want to fund insurance for four types of contraception that they considered were virtually the same as abortion. Plan B, IUDs, two other things. Under Obamacare, employers must provide full coverage for women’s health. Religious employers, and we’re talking churches and so forth, can avoid the problem of providing these contraceptives by filling out a form and ordering a third party to offer the insurance. That way, the employees get the same benefits as any other woman, but the religious group can avoid paying for the insurance directly.

 

So, we’re looking at two main issues: should a for-profit corporation be treated like a church group simply because the owners are religious? After all, the employees are presumably just regular people, right? Second, you’re probably thinking that we’re also talking about the First Amendment guarantees of freedom of religious expression. To what extent can the government stand between you and your experience of faith?

 

But here’s the thing. Justice Alito ignored the First Amendment. There’s a 1993federal law that says the government cannot trespass on expressions of faith absent a compelling federal interest. If they so do, they also have to prove that there was no less intrusive manner of serving that interest. This law is the much ballyhooed federal Religious Freedom Restoration Act, a law that was actually passed to clarify, and in some ways strengthen, the First Amendment’s guarantee that the government will not favor or intervene in religious expression. In other words, the federal law serves the First Amendment, but it does not replace it. And the Supreme Court carries vast First Amendment case law that should, in theory, govern this case.

 

Astonishingly, because we’re dealing with Justice Outside the Box Alito, the Hobby Lobby complaint was analyzed under the federal statute, not under Constitutional law. Hey! We don’t have to be lawyers to know that federal statutes, all statutes, must measure up to the Constitution, right? That’s the whole damned purpose of the Supreme Court! But this was not done! Instead, Alito looked at the language of the RFRA (and its progeny) and determined, first that this law somehow stands on its own outside the ambit of the First Amendment. (WTF?). Then, he ruled that a private for-profit company could have a religious conviction for purposes of the law, and third, he decided that the government had not selected the least intrusive method for serving its interest in women’s health.

 

I’m not getting into the origins of the RFRA, but just trust me. This law was passed in order to codify aspects of First Amendment law, not to trump established case law. The RFRA should be interpreted in the context of the Constitution, not on its own. To do otherwise is typical Alito, and his indifference to established constitutional law is unforgivable in a justice.

 

Second, is there a legal difference between a corporation, even a corporation run by Christians, and a church organization? Hello! Do we even have to ask that question? Yet Alito had no problem conflating a for-profit group with a religious organization. Why, he wondered blithely, should participation in the free market negate the owners’ faith-based rights? (Earth to Alito: because you can’t have it both ways! You can’t get the benefits of separating your personal finances from your corporation and then turn around and invoke your personal beliefs to evade federal law.) But following his skewed thinking, why shouldn’t the majority owner of a traded company be allowed to dictate religious terms? Couldn’t we see major corporations sidestepping all sorts of antidiscrimination laws with a wave of the religion card? If it’s up to Alito, no problem!

 

Finally, he turned to the question of whether the government had used the least intrusive means of enforcing its insurance policy. Hey, Alito said. You’ve got all these religious groups who can fill out a form and get someone else to provide contraceptive insurance. Surely this same accommodation can be made for Hobby Lobby and other “closely held” private companies who hold these “sincere” beliefs.

 

Now, bear with me. Forget the fact that women who work for seemingly secular companies should not be obliged to jump through strange insurance hoops in order to get standard health care. But there’s also a question of whether this “easy alternative” will even be available. Why? Because a bunch of the aforementioned religious groups have decided that even filling out the damn form is a violation of their freedom of religion, or sincerely held beliefs or whatever bull shit. And just a few days after Hobby Lobby, the High Court issued an injunction which allows a Christian college, Wheaton, to skip the form and just write a letter to the government.

 

Personally, I think this Wheaton decision, which got a ton of media attention for a range of legal reasons, is a red herring. Because it’s more of the same. The insurance. The form. These people won’t stop. Anything and everything will be a violation of their beliefs until someone, or some court, steps up and points out that one of our most fundamental principles as a nation is that freedom of religion does not extend to imposing your religious beliefs on other Americans.

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Will Hobby Lobby Hurt Us?

 

Even after all this, I still can’t predict how this opinion will play out. On the surface, we can imagine nightmare scenarios. And even though Alito pretends to operate outside the First Amendment, we know this opinion will have an impact on constitutional law. Could a company fire a gay person or ignore a legal marriage based on Hobby Lobby? Maybe, maybe not.

 

On the other hand, is it too weird? Has Alito gone too far? Will future courts be able to sidestep Hobby Lobby, noting that it was confined to a niche aspect of health care or that it ignored First Amendment precedent? Will it just create a murky area of law, a swamp to be drained by a future High Court ruling? Will Justice Alito’s comment that the opinion doesn’t provide a loophole for avoiding laws against racial discrimination extend to us? Note that our champion Justice Kennedy wrote his own concurring opinion, emphasizing the limited nature of the ruling.

 

And what of the numerous federal court rulings that have not only recognized our right to marry, but have done so with stirring rhetoric, pulling gay men and lesbians into a full constitutional embrace; equal protection, the fundamental right to marry, even the status of a protected minority? Can this asinine opinion undermine all that progress? Would the same federal courts that have heralded our relationships and our place in American society turn around and give the thumbs up to some right wing company that wants to dismiss our relationships based on “sincerely held religious beliefs?” I hope not. But that said, you just never know how High Court opinions will be greeted once they hit the ground running in the federal judiciary.

 

Finally, as I wind up this analysis, please note that Lambda Legal has joined the National Center for Lesbian Rights, the American Civil Liberties Union, the Gay and Lesbian Advocates and Defenders, and the Transgender Law Center, in opposing the Employment Nondiscrimination Act. Among ENDA’s many flaws, its religious loopholes would open the door for sexual orientation to stand alone as an exception to antidiscrimination laws.

 

We might not know exactly how the Hobby Lobby opinion will be interpreted when it comes to gay rights, but we certainly know (and I’m speaking for myself not Lambda) that LGBT Americans will be far better protected under the auspices of Title VII of the Civil Rights Act, with its half century of case law, than under the fragile shelter of a stand-alone mess of a bill that was proposed as a compromise in the 1990s.

 

Let’s put sexual orientation and gender alongside race, sex, national origin and religion in our most powerful federal law against workplace discrimination. If we wind up out in the cold with only ENDA to protect us, who knows whether or not some court will use Hobby Lobby as a pass for gay bias. If we are added to Title VII however, the Hobby Lobby precedent, with its admonition that it could not support “racial” discrimination, arguably could not be used against us.

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arostow@aol.com

Out and Proud

GLBT Fortnight in Review, June 10, 2014

BY ANN ROSTOW

 

Out and Proud

 

Hello dear Readers, and Happy Pride Month! I’m actually thinking that I might have done my duty after several decades of loyal Pride attendance. Here in Austin, we don’t even celebrate in June anymore because it’s too hot. We wait until September and have a parade at night.

 

Is that even legal? We’re supposed to be marking the anniversary of Stonewall for God’s sake. It’s like moving July 4 forward three months so that we won’t be uncomfortable at the barbeque table. I think I may already have mentioned to you that I have a tendency to forget the exact date of Austin Pride because it shifts from year to year. Last year we accidentally missed the damn thing, and the year before we went too early, got bored, and went to an oyster bar.

 

At least San Francisco does it right and on the correct day. I happened to be in D.C. last weekend, and stumbled into a Pride traffic jam. No, I did not get out and join the throng. We went to a gin tasting instead. Yes, I admit my priorities have changed from the days of yore, when going to Pride was actually a little thrilling. Even a little dangerous.

 

But then, for many other years, it was more than a little boring. Have any of you had to sit behind a table handing out newspapers for hours at a time? Of course you have. Maybe not newspapers, but something. Key chains. Voter registration cards. Brochures. Rainbow hats, rainbow pens, rainbow candy, rainbow fans. And you can’t even drink because you represent “your GLBT organization here.” Still, it was always a little bit fun until the day came when I’d rather be eating oysters in a dark leather booth or visiting a distillery. That day will come for you too.

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The Window Is Open in Wisconsin

 

Well, for all my cynicism, I will surely be going to Pride this year, whenever it may be, because this year will go down in our history. This is our annus mirabilis, a year of unstoppable progress which will culminate in marriage for all next year.

 

Every fortnight we have a new mirabilis piece of news, and this week we celebrate the addition of Wisconsin to the short list of Dazed and Confused states, states where marriage is not exactly up and running, but where a bunch of gay and lesbian couples have taken advantage of a marriage window in order to wed.

 

For our Badger brothers and sisters, the window has been open since Judge Barbara Crabb unlatched the locking mechanism with an 88-page ruling on June 6. But although Judge Crabb ruled in our favor, determining that Wisconsin’s ban on marriage was unconstitutional, she did not issue an injunction against enforcement of the antigay amendment. Instead, she scheduled a round of briefings, asking both sides to weigh in on the terms of a proposed injunction by the end of June.

 

That left friendly clerks free to issue marriage licenses, insisting that the language of the decision was the only green light they required. Unfriendly clerks, in turn, were free to keep the window shut as they wait for clear instructions. In a nice twist, when the state asked for an immediate court-ordered “stay” of her ruling, Judge Crabb noted that since she has yet to issue a formal injunction, there is nothing to “stay.”

 

The state went off and running to the U.S. Court of Appeals for the Seventh Circuit. But there again, the appellate court also seems stuck on Judge Crabb’s procedural anomaly. They have asked for briefs on whether or not they have jurisdiction. In other words, can the appellate court even consider a halt to marriages, if marriages have yet to be officially halted by an injunction?

 

Don’t you love it? I can’t figure out if Judge Crabb is just proceeding with caution, or if she’s deliberately arranged a Kafkaesque legal conundrum that serves to let weddings go forward with no immediate recourse for the opposing side.

 

Since I’m writing on June 10, there may well have been further machinations by the time you read this report. Perhaps the pleasant ambiguity will swirl around for weeks. Perhaps not. As you may remember, gay weddings took place for a time in Utah, and then again in Michigan. We also had a window after a state marriage victory in Arkansas.

 

Attorney General Eric Holder has made it clear that the U.S. government recognizes each and every one of these federally approved marriages, even if the states continue to turn their backs on their resident couples. There’s more litigation surrounding the window marriages in Utah, but you know what? I’m not getting into it. I think that recognition issue is pending at the Tenth Circuit, along with the more fundamental question of whether states can ban marriage in the first place.

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Sigh of Relief For Oregon

 

The other big news came out of the Supreme Court, where the entire Court declined to interfere with marriage equality in Oregon. No one stepped in to defend Oregon’s ban on same-sex weddings, so when a federal judge struck the Beaver State amendment last month, everyone from the governor on down was pleased as punch and no one appealed.

 

That did not sit well with the National Organization for Marriage, an enemy faction that fortunately had no connection to the litigation. But (to simplify) just as you and I cannot file an appeal just because we don’t like some court ruling, nor can NOM come out of the woodwork to appeal a decision from the sidelines of a lawsuit. That hasn’t stopped NOM from asking to intervene in the case, and even though they’ve been told no, they’re still trying to stick their nose in Oregon’s business. As such, NOM went sniveling off to the Supreme Court, asking for an emergency hold on marriage while they continued their fruitless attempt to join the party.

 

Happily the Court refused. The emergency motion went to Justice Kennedy, who could have ruled on his own. Instead, he took it to the full Court, where the motion was denied with no explanation and no published dissent. The denial was expected, but it was still a relief.

 

Don’t assume that the Court’s hands-off approach to Oregon signaled a softening of their hard hearted refusal to allow marriage to proceed in Utah. In the Utah case, where the justices did indeed slam the marriage window shut, it was the state that made the request. And unlike NOM, the state was obviously a party to the case. It was the defendant. That Utah decision has led most courts to put marriage rulings on hold, based on the obvious conclusion that the High Court wants to settle the matter on a national basis.

 

In addition to the unusual situation in Wisconsin, the exceptions have come in the aforementioned Oregon case, and in Pennsylvania, where the governor decided not to appeal.

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Good Lawyers

 

You’ve read of course about the continual rise in public approval of marriage equality, a rise that feeds into the snowball effect of continued legal victories. But the rise in our popularity is more than just numbers. It’s manifested in dozens of heartwarming anecdotes from around the country.

 

How about the Wisconsin couple that raced over to one of the friendly clerks to get married, and celebrated with dinner at a nearby restaurant. When the staff learned that the pair were newlyweds, they all pitched in and bought their meal. Hey, would have been nice enough if the restaurant owner or manager had comped them. But waiters, cooks and bussers aren’t exactly rich. What a great gesture.

 

I can’t think of another one off the top of my head, but I’ve had that heart-warmed feeling often in the last several months. Here’s the thing. Just as a hate crime is so insidious because it attacks our community as a whole, these kindnesses affect us all as well. As a news writer, I can’t count the times that I’ve felt sick reporting a hate crime. I’ve felt personally bashed, albeit in a small and indirect way. But lately, the sensation is reversed. Those restaurant workers would have done that for me and Mel. In theory, they did. I’m personally grateful.

 

And there are other nice phenomena. I just read that the vast majority of top American law firms are simply refusing to represent antigay marriage clients. Don’t get me wrong. I believe NOM and the state of Wisconsin and the others have every right to competent attorneys. But I’m also quite happy to let them scrape the bottom of the barrel for the whacko evangelical lawyers. (Plus, they still have Paul Clement so you can’t feel too sorry for them.)

 

Now, surely there must be something for me to grouse about. This column is getting saccharine.

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Waiting For Whoever

 

While I think of some reason to complain, I should fill you in on the status of our appellate cases. We have already argued marriage in the Tenth and Fourth Circuits, so you can expect our first appellate rulings from Denver and um, Richmond? Wherever. Somewhere in Virginia.

 

The Ninth Circuit has scheduled the Idaho arguments for September, and promised to schedule the Nevada case around the same time.

 

The Sixth Circuit now has written briefs from all four states in its jurisdiction. That covers marriage and/or marriage recognition wins in Michigan, Tennessee, Kentucky and Ohio. Oral arguments in the Michigan case are set for August 6.

 

The Fifth Circuit (cue first four notes of Bach’s Toccata in D Minor) has scheduled briefs for later this summer in the Texas case, but has not set a date for arguments.

 

As for what you can expect in the next week or two, I’ve reached the point that I don’t know exactly which lower court federal cases are at the head of the line. I just wait around and check my email. Pop! Pennsylvania. Pop! Oregon. Pop! Wisconsin. We have pending cases in every state at this point. We have already won marriage in 19 states. And we have victories on hold in, what eight states now? Nine? That leaves 22 or 23 states that could pop and I’m just going to let the next one be a surprise.  

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ENDA Nother Thing

 

Finally, here’s something I can complain about. Long time readers will recall that I have little patience for the much hyped Employment Nondiscrimination Act, a piece of legislation drafted at a time when crumbs from the Congressional table were the most we could hope for. Yes, it’s been somewhat improved over the years, but still. The rest of the country is protected from job bias by a powerful federal law that covers discrimination based on race, national origin, sex and religion. Why the hell should we get stuck with a less effective gay-only bill at this stage in our movement?

 

OK OK. I won’t go on the entire rant. Just let me say that, given that I hate ENDA, I’ve long been irritated by the mindless ENDA fans in the official gay community. Every week we’re called to support ENDA! President Obama promises to pass ENDA! Give money to fight for ENDA! Now, at long last, two big major GLBT groups have come out against the bill, citing one of its major weaknesses.

 

According to the Washington Blade, the National Center for Lesbian Rights and the Transgender Law Center say they will not back ENDA until someone closes some of the religious loopholes that riddle this obsolete proposal. Thank you.

 

ENDA has so many exceptions (both religious and procedural) that it arguably would actually hurt us if it passed. Title VII of the Civil Rights Act of 1964 (the aforementioned law that includes everyone else) is increasingly interpreted to cover some forms of sexual orientation discrimination and most forms of trans discrimination. But guess what will happen if Congress passes a special GLBT bill? Courts will refer to ENDA and GLBT plaintiffs will have no access to Title VII whatsoever. Further, any effort to add sexual orientation to Title VII would be set back for years and years.  

 

Pull it. Wait until next year. And introduce a bill to add us to Title VII, a statute that is enriched by half a century of case law. It is where we belong. Oh, and don’t say it’s too hard. The same people who won’t support it won’t support ENDA either. And vice versa.

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arostow@aol.com

Hmmmm. What Shall We Talk About?

GLBT Week in Review, April 30, 2014

BY ANN ROSTOW

 

Hmmmm. What Shall We Talk About?

 

I think there are only three states left in the country that are not embroiled in a federal marriage suit, not counting the 17 states that already celebrate marriage equality of course. Many states are enjoying multiple lawsuits. And I’m not even counting the state lawsuits here and there, like the one in Texas where a local judge recently slammed the state’s anti-marriage law in the case of divorcing lesbians in San Antonio.

 

The latest twist comes out of North Carolina, where a bunch of clergy and same-sex couples are attacking a state statute that basically bans ministers from performing weddings for couples without a marriage license. The lawsuit also targets the North Carolina anti-marriage amendment, but it has been drawing headlines for its claim that the Tobacco State is trampling on religious freedom.

 

Without delving into the aforementioned statute, I’m guessing that the language in the state code was originally meant to prevent straight people from running to the altar without bothering with the bureaucracy of actually getting a license and so forth. Strangely, the law seems to put the burden on the minister, by instituting a fine, forcing a minister to check the paperwork before he or she ties the ritual knot. (Ironically, the law serves to emphasize again, that marriage is a civil status, regardless of how sacred the religious side of it might be seen by the participants.)

 

At any rate, since gay couples can’t get a license to wed in North Carolina, the church plaintiffs are insisting that their right to perform a religious ceremony of marriage is unconstitutionally subjected to criminal penalties. Hey, they have a point! This ought to be interesting.  

 

Off the top of my head, I can tell you that we have a new lawsuit in Georgia, and a full throated suit for equality in Ohio. We’ve already won a marriage recognition case in the Buckeye State, but this latest one is for all the marbles.

 

In significant related news, the U.S. Court of Appeals for the Sixth Circuit has refused to consolidate the appeals of marriage cases out of Ohio, Michigan, Kentucky and Tennessee. Michigan’s attorney general had asked the entire court to go straight to an “en banc” review of marriage equality, but apparently not one judge agreed. The four cases will instead be heard by three-judge appellate panels as is the norm.

 

Keep an eye on Indiana, where arguments will be heard May 2 on whether to skip a factual trial on marriage equality and proceed to summary judgment. In the history of marriage litigation, we’ve only had three trials on the subject, mainly because the conflict is arguably a matter of law, not facts. Nonetheless, we had a trial in Hawaii in the late 1990s. We had the Prop 8 trial. And we just finished a trial in Michigan the other day. (We won them all. Yay!) I’m guessing that Indiana will skip a trial, given that the same judge recently issued a temporary restraining order against the Basketball State in favor of a lesbian couple.

 

Let’s see. A federal judge in Oregon just heard arguments the other day. Since no state authority is defending the ban on marriage in Beaverland, the National Organization for Marriage popped up at the very last minute to demand a seat at the table. NOM’s attempt to intervene will be discussed at a hearing May 14. Meanwhile, the activists at Basic Rights Oregon say they will abandon plans to force a statewide referendum on marriage if the judge rules in our favor by May 23. If that deadline passes, I’m assuming we will see a popular vote to legalize marriage this November. And I’m assuming we’ll win.

 

Next up in the news: arguments on the Virginia marriage law before the U.S. Court of Appeals for the Fourth Circuit in mid-May.

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Criminal Minds

 

Are my columns becoming tedious, Dear Readers? But what choice do I have? Back in the day, before hearing dates and appellate schedules overwhelmed this humble exercise, I had the space to discuss the wacky British lesbian who kidnapped her ex at knifepoint and took her on a harrowing ride down the M5. And the one who tried to poison her ex with sleeping pills and had to call emergency medical services. And the one who broke into her ex’s house and cut up her underwear. And the American woman who murdered her ex and left the body parts in boxes in the garage (carefully marked with her own name) to be discovered years later by her son-in-law.

 

Oh, I forget the details. But I do remember a time when gay news was colorful. And it wasn’t just the lesbians. Don’t forget all those gay male cannibals!

 

I have to assume that our community psychopaths are still out there. But maybe the news radar is so high these days that they’re not getting the kind of coverage that would attract our attention.  

 

I just googled “gay and lesbian psychopaths,” and found a list of six clues that suggest you’re dating a psychopath. If these clues seem familiar, the advice columnist suggests you “walk away” from the relationship. I have to say, that could be a problem, right? It’s the exes that get targeted for deranged shenanigans.

 

In a related note, here’s something I don’t like to see in an advice column. The other day, someone wrote Dear Abby to make a point about kind gestures. This writer, we were informed, went out of her way to help someone. I forget what she did even though she included every detail of her considerate gesture. She then told the recipient to pass along the goodness. Her point to Abby was that self-sacrificing favors were their own reward and helped make the world a better place. Surely there was no reason for this woman to send this account off for publication other than to pat herself on the back. I can’t believe Abby played into this egomaniac, and I was officially annoyed.  

 

The other advice column letters that I hate are the pompous notes from officials asking Abby to remind everyone to check their smoke alarms or stop texting while driving or watch out for phone scammers. We read Abby and her ilk for stories about obnoxious family members and scandalous affairs, not for boring civic reminders.

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The Emperor’s New Faith

 

So here’s a question. Do you think there’s a comparison to be made between Donald Sterling and Brendon Eich? Sterling, as you know, is the owner of the Clippers who was barred for life from the NBA after he was heard disparaging black men in a taped conversation with his girlfriend. Eich is the former CEO of Mozilla, who lost his job when it became known that he donated $1,000 to Prop 8. After Eich was drummed out of his job, the GLBT community began an important debate on how we should treat those who oppose marriage equality. Should we treat them as decent people with whom we disagree, or should we call them out in no uncertain terms? That debate is still going on.

 

It’s a given that Sterling is “worse” than Eich. Sterling has a history of racism, and his taped conversation revealed what we might call “pure” racism. Eich had no history of homophobia, and if Eich had been caught on tape denouncing gay men and women, I imagine no one would have suggested he stay on the job.

 

That said, Eich wasn’t banned for life from the tech industry. He had just gotten the CEO job and in the uproar over his opposition to marriage equality he was deemed a liability. What we seem to be asking ourselves is this: can there ever be a benign reason for someone to support traditional marriage? Was the uproar over Eich unfair, or misplaced? (Significantly, the uproar did not come from gay organizations, but from individuals.)

 

The answer often seems to rest on faith. Don’t we, as Americans, respect people whose faiths lead them to conclusions which we don’t share? In general, the answer is yes. But there must be a limit to this. Faith doesn’t justify racism. Why should faith be allowed to justify hostility towards gay men and women? Why do we allow religious exclusions to civil rights bills and policies? Because of Leviticus?

 

The people who insist faith commands opposition to gay rights are using the Faith Card as a stand in for tradition, for how they were raised, for their unconscious attitudes, for their instinctive dislike of homosexuality. And these are the same reasons that lead others to, let’s say, give a thousand dollars to Prop 8. There’s no call to be churlish in our reaction to our opponents. But there’s no reason to let their actions (and make no mistake, Brendon Eich took action) go unchallenged.

 

Just because Sterling is a hundred times worse than Eich doesn’t mean that both men are not guilty of the same crime. Sterling robbed a bank of a million dollars while Eich shoplifted a set of cufflinks. Still, there’s a connection.

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Resting Places

 

Here’s a nasty story out of Idaho. A 74-year-old Navy veteran, Madelynn Taylor lost her wife, Jean Mixner, in 2012. After Mixner’s death, Taylor went to the state veterans’ cemetery to arrange for the two of them to be buried together when the time comes. Mixner was cremated, and Taylor also plans to be cremated, so it’s not as if the women will take up much space.

 

But, as you might have guessed by the adjective “nasty,” the Spud State authorities said no. Because this is a state facility, the cemetery poobahs refused to recognize Taylor and Mixner’s 2008 California marriage.

 

You know, there are dozens of antigay news stories in any given week, but this one really takes your breath away. Taylor, who is keeping Mixner’s ashes in a closet for now, has lived in Idaho for a long time and has family in the state. “I just feel like it’s the right place for me,” she told the press. “You know, I’m a veteran. But I don’t want to be alone. I want Jean with me.”

 

Governor Butch Otter, in turn, noted in a statement that “Idaho’s Constitution does not recognize same-sex marriage. The voters spoke in 2006 by passing an amendment to our Constitution defining marriage as between a man and a woman.”  Give us a gay break, Butch. I wonder if this is really what the voters of Idaho hoped to achieve when they pulled the levers, or poked the chads, back in 2006. And when people speculate on why our movement has made so much progress, it’s because of people like Madelynn Taylor and Jean Mixner.

 

By the way, not only does Idaho have a federal lawsuit underway, but it is part of the Ninth Circuit, where a marriage case is still pending and where we are still waiting to hear whether our major sexual orientation discrimination ruling from last January will stay on the books without further review from the full court. If the ruling holds, and if the (Nevada) case goes forward, Taylor won’t have that much longer to wait before Idaho’s marriage amendment turns into mashed potatoes.

 

I can’t remember whether I’ve mentioned Mel and my plan to be cremated and mixed together. We decided to buy three tacky urns, perhaps decorated with sparkles and inlaid photos of the two of us smiling drunkenly and holding tropical cocktails. Maybe we’ll have “Mom and Ann” written in script. Anyway, we’ll give one urn to each of the three adult children with instructions to keep them on prominent display forever. Oh, maybe we’ll write “Nana and Grand Ann” and make the grandkids put the urns on the mantle. Something like that. The idea is so outrageous that it’s almost tempting.

 

Maybe we’ll write little notes and put them on the bottom under the ashes that say: “put us back in the urn this instant!”

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arostow@aol.com