Ninth Circuit Orders Heightened Scrutiny For Sexual Orientation Bias

GLBT Fortnight in Review, January 22, 2014

BY ANN ROSTOW

 

Ninth Circuit Orders Heightened Scrutiny For Sexual Orientation Bias

 

Our legal fight for marriage equality has exploded into dozens of state and federal cases, far too many for even the most organized GLBT reporter to track. As for me, I have been accustomed to juggling all our big lawsuits in my head, an easy trick back in the day when we had two or three major cases at any one time. Now, well, I am doing my best.

 

As I write, however, the most important legal news is an obvious pick. No, it’s not the federal opinion legalizing marriage in Utah. It’s not the federal marriage ruling in our favor out of Oklahoma. Indeed, it’s not even a marriage ruling at all. It’s a decision out of the U.S. Court of Appeals for the Ninth Circuit, written by our old friend Stephen Reinhardt, author of the weird Prop 8 opinion that was subsequently voided by the High Court on a technicality.

 

In this case, Reinhardt and his two (Democratically appointed) panelists, ruled that gay men and women cannot be summarily dropped from a jury because of sexual orientation. The High Court has already made it clear in two separate opinions that lawyers may not exclude jury candidates due to race or gender. Now, sexual orientation is added to the list on the left coast.

 

Well, that’s nice. But for many of us, it’s like the gays in the military debate. We don’t want to be excluded from anything on principle. But we’re not exactly doing backflips in order to join the army or spend a couple of weeks reporting for jury duty. But forget jury duty. The significance of the opinion lies in the reasoning. Here, Reinhardt rules that courts examining cases of gay bias must put the burden of proof on the alleged offender, applying heightened legal scrutiny to the circumstances at issue. His decision rewrites the legal handbook to our advantage throughout the western United States.

 

If it stands, and is not reviewed and overturned by the full Ninth Circuit or the Supreme Court, we will win the marriage case against Nevada now pending in the Ninth Circuit. Almost automatically.

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Whither Windsor?

 

And now, let’s talk briefly about the importance of legal reasoning. It’s normal to see a headline and skip the details. “Court Rules for Gay Couples.” Yay!!!! On to the sports page where we can pore over the minute details of Kansas basketball.

 

But the real news is always in the details. Victory is important. But did Kansas win in a blowout? Or did their star player break a kneecap while the team fumbled its way to a one-point edge? What does the future hold?

 

A couple of years ago as I mentioned, Judge Reinholdt wrote the opinion that struck California’s Prop 8 on appeal from Judge Walker’s court. And yet, our legal allies were baffled. The opinion never really grappled with the underlying question of marriage equality. Nor did it deal with the level of scrutiny that should be applied to equal protection cases involving sexual orientation. Arguably, it did not even leave a mark on gay rights jurisprudence. Instead, Reinhardt wrote that a state may not remove constitutional rights from a specific group of people, a guideline that could apply just as easily to dog walkers as gay people, and one which had nothing to do with marriage.

 

We had been hoping for a big juice gay rights precedent from a federal appellate court, and we got a dry saltine. Analysts thought Reinhardt might have written this nondescript opinion in order to keep the case from exploding in our gay faces at a higher court. But whatever his motive, his ruling managed to kill Prop 8 without advancing the ball in our direction.

 

Now Judge Reinhardt has delivered the goods. But he has done so in a context that hardly ripples the waters in the mainstreams of society. Jury duty? Who cares! Marriage? Now, despite our progress that’s still a difficult subject to say the least. It’s hard to avoid the conclusion that Judge Reinhardt is a strategist at heart, looking ahead to the repercussions of his opinions and the end game of a civil rights movement that he clearly supports. He is not called the liberal lion of the Ninth Circuit for nothing.

 

Judge Reinhardt did something more. Instead of wading through the usual analysis that governs a debate on heightened scrutiny, Reinhardt examined Justice Kennedy’s opaque opinion in Windsor, and determined that even though Kennedy did not come right out and announce that sexual orientation deserved special consideration by the courts (an announcement that would have generated shockwaves throughout the legal system) Kennedy’s approach to last June’s DOMA case nonetheless implied that heightened scrutiny was in effect.

 

If other courts pick up on Reinhardt’s reasoning, our victory against the Defense of Marriage Act would carry over to any and all cases of gay bias that reach the federal courts. Did I mention that we now have dozens of federal marriage cases in the pipeline?

 

That said, Justice Kennedy has always managed to rule in our favor without actually spelling out the type of hard legal reasoning that would force future courts to follow suit. At first blush, it looked as if Lawrence v Texas would do for gay rights what Roe v Wade did for abortion rights. But indeed it proved fairly easy for conservative courts to sidestep Lawrence, as they did with Kennedy’s other gay rights decision, Romer v Evans.

 

When Kennedy delivered yet another vaguely reasoned gay rights decision last summer, I personally was afraid that once again the opinion was going to be up for grabs. Liberal courts would use Windsor to uphold our rights. Conservative courts would note that no special scrutiny was ordered, and nowhere did Kennedy dictate how states would define marriage.

 

And yet, this hasn’t been the case. Courts in Ohio, Utah, Oklahoma and elsewhere have gone out of their way to interpret Windsor as broadly as possible. Now, the Ninth Circuit joins the party, delivering what might be one of the most significant gay rights rulings in history to date. Justice Kennedy may have hedged his bets with his semantic legerdemain all these years. But when you hold his rulings up to the light, the story they tell is becoming explicit.

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Circuit Party

 

So what now? It seems as if every state is now embroiled in a marriage equality contest. Pennsylvania has no less than seven active lawsuits. The National Center for Lesbian Rights has just filed in Florida. There are two in Texas. There are cases in Virginia, Tennessee, North Carolina, Oregon, Idaho, Michigan—you get the picture.

 

Indeed, rather than track cases by state, it may be more useful at this point to track them by federal appellate district. Our most important battles are arguably now being waged in federal court, so while it would be nice to see marriage equality spread through another state supreme court ruling, the critical decisions will be coming from the federal bench.

 

At present, we have a case pending in the Ninth Circuit; the previously mentioned lawsuit against the state of Nevada that has been trudging along in a tedious fashion for a couple of years. Then, we have the Utah case which has been fast tracked at the Tenth Circuit. Since Oklahoma is also under the jurisdiction of the Tenth Circuit, those cases may be combined. Will that slow down the litigation? We’ll see.

 

In Ohio, we have a marriage recognition case now proceeding to the Sixth Circuit. That case involved a somewhat narrow question of whether or not the state was obliged to list a same-sex spouse on a death certificate. But obviously, the issue on appeal will be whether or not the Buckeye State can ignore the general marital rights of those who wed outside Ohio borders.

 

There are 12 federal appellate courts, one rung down from the Supreme Court, and each of those courts makes binding law for all states in their jurisdiction. (That’s why Judge Reinhardt’s gay rights ruling was so important. It will become law for seven western states, plus Alaska and Hawaii.)  

 

Marriage is already legal throughout the First and Second Circuits, with the exception of Puerto Rico, and the District of Columbia circuit is also a free marriage area. So that leaves six other appellate circuits where marriage litigation might appear.

 

You can certainly single out the “good” circuits and the “bad” ones. But in truth, it’s something of a crapshoot. Three-judge panels are selected by lot, so in theory, we could end up with two or three conservative judges even in a court dominated by Democratic appointees and vice versa. That said, a panel decision can be reviewed by the entire bench of any circuit court, so for example, were we somehow to win a marriage case in the Fifth Circuit, the full bench would bitch slap us back into our corner in a heartbeat.

 

Check out the wikipedia entries for the various courts to count the number of Democratic or Republican appointees. And keep in mind that Reagan and Bush One picks are not necessarily all that bad.

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San Fran on the Small Screen

 

Is it wrong to pass judgment on a TV show that you’ve never watched or a book you’ve never read? Of course not! That’s why I have no problem deciding not to watch the new HBO show, “Looking.” From what I’ve read, the show is a bore, and trades solely on the hackneyed notion that gay men are just like everyone else, looking for love in all the wrong places and trying to live an average American life. Yawn.

 

That said, if I still lived in San Francisco, I’d probably watch it just out of home town pride and satisfaction. I stopped watching The Mentalist for a long time because I got sick of Red John. Now, the show is based in Austin, where I live, and I’m back if only to see my own skyline and city streets.

 

One pet peeve about The Mentalist: When they were based in Sacramento, they were always flitting down to LA or up to the Napa Valley, only to be back in their office a few hours later. Hello? It’s a six hour drive to LA, and they weren’t seen in an airport. Now I watch them hop over from Austin to Corpus Christie (four hours), get someone, interrogate them at headquarters (another four hours), and continue their beachfront investigation the next day. Ditto Houston, about two and a half hours by car. C’mon writers. A little realism.

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Looking For A Topic

 

I was just surfing for a good short item to end this column, when I noticed a sidebar titled “25 Most Common Passwords.” The top password was “123456,” and the second most common was “password.” First of all, it’s the 21^st century people. You have to do a little better than that. Second, how does anyone know what the most common passwords might be in the first place? Disturbing.

 

So, I was torn between Putin (saying Russia must discourage homosexuality in order to keep birthrates up) and the Bachelor (saying homosexuals are more perverted than others and in essence, give him the creeps). But then I stumbled onto yet another review of “Looking,” in which a gay guy slams Esquire because a straight guy wrote that “Looking” was dull.

 

Interesting! My impression of “Looking” was based on a New York Times piece by Alessandra Stanley and another report on Slate by J. Bryan Lowder, who is gay. Both of them trashed the show for lack of interesting content, and although Stanley isn’t gay, I trust her judgment implicitly. So without reading Esquire, I’m inclined to agree with the straight guy and charge the gay guy with reverse homophobia, the tendency to assume that a gay show or idea or comment must be worthy and that criticism of said show or idea or comment must show bias.

 

I have decided to watch the show and read the Esquire review so we can pursue this topic in future columns. Oh, and I went to early grade school with Alessandra Stanley, whose father gave me a dollar when I lost my tooth during an overnight visit. That was huge back then. I’ve never forgotten it.

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arostow@aol.com

 

2013 News Quiz, BY ANN ROSTOW

2013 News Quiz, BY ANN ROSTOW

 

It’s time again for our annual year-in-review news quiz! Unfortunately, that means I can’t comment on the exciting developments in Utah. However, you already know all the details, assuming you’re a conscientious community member. And the rest of the story will play out this year, when the 10^th Circuit grapples with the question of marriage equality. Briefs are all due by late February. Oral arguments will follow, and a ruling should arrive a month or two after that.

 

The lesson of Utah is that no matter how closely we watch the news, we can still be caught off guard. In this case, the surprise was in the timing (which came just days after oral arguments), the bizarre delay in requesting a stay (which led to about a thousand marriages), and the remarks by the 10^th Circuit (which seem to signal an edge for same-sex couples).

 

With that in mind, who knows what awaits us in 2014? Will there be penguins? More victories in federal court? Perhaps a few conservatives caught with their pants down and a couple of cute rent boys in a budget hotel room? Maybe (National Organization for Marriage President) Brian Brown will get a divorce. To paraphrase Don Rumsfeld, the only thing we do know, is that we don’t know. So let’s get to our quiz, and let’s start with penguins.

 

 

Q: In Odense, Denmark, two gay penguins were reported:  a) trying to hatch a dead herring, b) having sex in front of a group of middle school children, c) appearing to line dance to a piped in recording of “The Hustle,” d) obsessively preening each other’s coats.

A: a. they also tried to steal eggs from heterosexual penguin couples.

 

Q: How many states began offering marriage licenses to same-sex couples in 2013? a) ten, b) eight, c) nine, d) seven.

A: b. Illinois will not start issuing licenses until June of 2014. California did not begin offering licenses, it resumed doing so. Utah still counts even though marriages have been halted. Maryland legalized marriage in 2012, but began licensing in 2013, so it also counts. The other six new states are Rhode Island, Delaware, New Jersey, New Mexico, Hawaii and Minnesota.

 

Q: Who gave the worst service? a) the baggage handlers who taped “I am gay” on a man’s suitcase, b) the restaurant owner who gave a nasty letter to his lesbian diners after they paid their bill, c) the shuttle driver in Albuquerque who ejected two men because they were holding hands and singing, d) the bartender who emptied a bottle of single malt scotch over the head of a man dressed like Celine Dion.

A: b) It’s really a judgment call, except for the bartender story which didn’t actually happen. I think the restaurant incident is the most hurtful.

 

Q: Which state or states does not allow gay couples to contract marriages, but will nonetheless recognize out of state marriages? a) Michigan, b) Colorado, c) New Mexico, d) Pennsylvania, e) Oregon, f) Utah, g) Ohio.

A: e. Only Oregon. The federal court ruling out of Ohio does not immediately translate into statewide recognition policy, but it should in time.

 

Q: Last February, how did the editors of the AP Style Guide insult the GLBT community? a) they included a definition of “gay” to mean “foolish or stupid,” b) they instructed journalists to replace the word “homophobe,” with “traditionalist.” c) they recommended calling gay couples “partners” rather than “spouses,” d) they approved of the use of “faggot,” but only when referring to a small stick or piece of kindling.

A: c. The AP suggested that reporters only use “husband” or “spouse” if the gay couples themselves insisted on the terminology, regardless of whether or not the couple was legally married. They also discouraged the use of “homophobe,” but they never offered a replacement.  As for a), that was the Apple Dictionary.

 

Q: Identify the following newsmakers: a) Walter Naegle, b) Kaitlin Hunt, c) Nick Gilronan, d) Alexandra Hedison, e) Scott Norton, f) Nicole Maines.

A: a) life partner of Bayard Rustin who received Rustin’s posthumous Medal of Freedom, b) Florida teen jailed for her affair with a younger teen girl, c) winner of 2013 smallest penis contest, d) ex-GF of Ellen D’s who is now linked with Jodie Foster, e) national bowling champ who kissed his partner after televised victory, f) trans teen who sued school district before Maine’s top court.

 

Q: In the Prop 8 case, Justice Sonia Sotomayor felt: a) that the lower courts were correct to strike the initiative, b) that the Court was obliged to defer to the opinion of the California Supreme Court when deciding whether or not the Prop 8 side had the right to appeal, c) that the Prop 8 side suffered no direct harm from the legalization of marriage and could not bring the case to the High Court, d) that the case was moot, e) that the issue of standing should not have distracted the Court from reaching the merits of the case, f) that the Prop 8 side had standing to appeal, and that the Ninth Circuit should reconsider the underlying question of marriage.

A: b. Sotomayor joined the minority (with Justices Scalia and Thomas) in Justice Kennedy’s dissent. The majority ruled that the Prop 8 proponents lacked standing to sue and that Judge Walker’s decision to strike Prop 8 would be the final word.

 

Q: A group called the Australian Cat Ladies won 15 minutes of fame in 2013 for: a) hijacking the website of the Australian Christian Lobby, b) stalking tennis star Samantha Stosur throughout the Australian Open, c) removing their shirts on the steps of the High Court of Australia during the marriage equality case, d) performing a Pride concert with a live tiger, who briefly escaped and knocked a stagehand into a steel pole.

A: a. check out the group at australianchristianlobby.org.

 

Q: The High Court’s decision to halt marriages in Utah indicated: a) nothing more than a desire to proceed cautiously with a controversial issue, b) a belief that states must have the right to make and enforce their own marriage policies, c) frustration with the ineptitude of the state of Utah, where lawyers failed to request an immediate stay from the presiding judge, d) a recognition that Utah is too conservative for marriage equality at the moment.

A: The question is irrelevant, since this is a 2013 quiz and the High Court acted in 2014. But it likely indicated a), a pragmatic attempt to calm the waters as the case proceeds quickly through the Tenth Circuit. As for c), although we all were pleased to see marriages conducted for a week or so in the Saints State, the Utah Attorney General’s Office appeared bewildered by standard court procedures.

 

Q: The biggest GLBT news story in 2014 will be: a) the Supreme Court’s decision to let stand a 10^th Circuit ruling in favor of same-sex couples, b) a well-known American athlete, in either football, baseball or basketball, coming out of the closet, c) the Supreme Court’s decision to accept a marriage equality case for the 2014/2015 term, d) the discovery of a link between homosexuality and high IQ levels, e) undeniable proof that Abraham Lincoln was gay, f) visitors from another planet who convince the world to come together in peace and end prejudice in all contexts.

A: c.

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

 

Toot Toot! Equality Junction!

Rostow Report, November 2013
BY ANN ROSTOW


Toot Toot! Equality Junction!

Marriage is bustin’ out all over. Last month, New Jersey became the 14th state to legalize marriage (through court order), and this month we’re looking at a marriage bill cruising through the Hawaii legislature and a pending marriage opinion from the New Mexico Supreme Court.  Perhaps even in Illinios.

Meanwhile, the Oregon attorney general’s office has decided that same-sex marriages from out of state should be recognized. Although an AG opinion is usually a guidepost rather than an order, Oregon authorities quickly issued statewide directives, instructing all Beaver agencies to comply with this policy. And obviously, a decision to recognize same-sex marriages is very very close to a decision to legalize marriage.

So, it’s all good! That is if you don’t count the other 30 or so states that stand before us, arms crossed, defiant. Those states with beady little red eyes who proclaim that our marriages are dead to them! Dead! But you know what? Even those states will watch helplessly as the stony edifice of ignorance and hate crumbles around them and sends them tumbling into the warm embrace of equality!
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Here’s Mud in Your Buckeye

Do any dog owners out there have a problem with daylight savings time? As I write my dogs are pacing the floor, giving me the evil eye because I am not feeding them on the precise schedule that they have managed to internalize like toddlers at snack time. I have explained about the time change, but they continue with their pained outrage.

As for marriage, we have about two zillion lawsuits floating around this country, many of them triggered by the High Court’s June ruling in Windsor that the federal government is obligated to respect the legal marriages of gay citizens.

As you know, the Windsor decision said nothing about whether marriage equality was mandated by the Constitution. But it said a lot about whether the government could ignore a marriage once issued by a state. And if the government is required to acknowledge our marriages, why shouldn’t the red state next door be compelled to do the same?

Windsor doesn’t answer that question directly, but its signals suggest we have a strong argument in favor of forced marriage recognition. Check out the lawsuit in Ohio that asks a federal court to make the state list same-sex spouses on death certificates. Ohio has an antigay marriage amendment in its constitution, but the court has already made an exception for one married man who was at death’s door (and subsequently died). If the court extends that ruling to everyone, how then can Ohio continue to ignore same-sex marriages in other respects?

And if Ohio must recognize marriage, then why not Oklahoma, or Florida? You get the picture.
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Tip of the Icebergs

So what else is new? How about the Christian diners who left the following note for their waiter at a Carrabba’s restaurant in Overland Park, Kansas:

“Thank you for your service, it was excellent. That being said, we cannot in good conscience tip you, for your homosexual lifestyle is an affront to God. Queers do not share in the wealth of God, and you will not share in ours. We hope you will see the tip your fag choices made you lose out on, and plan accordingly. It is never too late for God's love, but none shall be spared for fags. May God have mercy on you.”

Say what? According to reports, many locals who read about the incident went out of their way to go to this restaurant, request the same guy, and leave him a nice tip to compensate for his ill treatment at the hands of these despicable customers. Note to Christian couple: check out Luke 6:24-26.
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Dolphins Behaving Badly

I’ve also read that Jason Collins, the pro basketball player who came out of the closet to much fanfare earlier this year, has not been signed by any pro team. True, he’s a journeyman a bit past his prime. But apparently several other veterans with lesser credentials have been picked up by teams during the last six months.

The common wisdom in basketball circles is not that teams are antigay, but that teams are shying away from the media attention that would accompany the man. It’s sort of the same thing in my book.

And speaking of sports, I was sure that Miami Dolphin Jonathan Martin left the team in disgust because he was gay. After all, why would his teammates persist in relentless “bullying?”

Unfortunately I can find no evidence to support my theory. Martin, who is in his second season at Miami, reportedly walked away from the team due to constant hazing. The last straw was a maneuver straight out of Mean Girls, in which he sat down in the cafeteria and all the other men got up and took their food to another table. Clearly, if that was the last straw, there must have been a large bale of hay already on his back at the time.

But press reports suggest Martin was pressured to cough up cash to entertain more senior teammates, reportedly a routine practice among football players. He was also nicknamed “Big Weirdo,” and harassed about his Ivy League ties and his status as a Stanford grad. The Dolphins have recently suspended one guy accused of leading the charge against Martin.

Really? I still think there must be something more to this story. But who knows?
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I See England, I See France

By the way, while we’re on the subject of football, am I the only football fan who notices that many players seem to flaunt their male attributes by letting their junk hang loose under see-through white pants?

I mean c’mon! You can see everything! And no one mentions this in the press. My wife has accused me of having an unseemly interest in this phenomenon, given that I’m a lesbian, but it’s like the Emperor’s New Clothes. It doesn’t bother me per se. It only bothers me that no one else comments on the southern exposure. If female athletes wore clothes that revealed nipples or other intimate details, we’d hear about it.

Guys? Surely you’ve noticed. Tell me I’m not alone out here. And for the record, isn’t it a little risky? Ouch.
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Disparate Impact

Finally, Congress is considering the Employment Nondiscrimination Act as I write, a sore subject for me only because I think it would be preferable to add “sexual orientation” to Title VII of the Civil Rights Act of 1964. That’s the statute that protects everyone else from employment discrimination, and unlike ENDA, it comes with 50 years of solid case law. Pushing for a separate “gay” bill made sense 20 years ago. But does it still?

I suppose I will rein in my pet peeves about ENDA and root for passage. But still, Title VII already protects transgendered people (thanks to some of that case law). And ENDA is heavily patterned after Title VII to begin with so why not just go for the real thing?

Unlike Title VII, ENDA limits some money damages, it adds extra loopholes (unnecessary in my view) and it does not allow for claims of “disparate impact.”

If you were to mandate, for example, that every plant worker had a high school degree, it would not appear to violate rules against job bias. If, however, it was then shown that only 5 percent of African Americans had finished high school, and that such a degree was not necessary for the work involved, it would be illegal under Title VII. (I based that example on a mid-century case that established disparate impact, but I can’t recall the details.)

ENDA does not allow for that kind of case for a number of reasons, but it’s another example of why ENDA is a second-class law. Hey. I said I’d root for the damn thing. I’m just not happy about it.
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arostow@aol.com