Ann Rostow Blog

Wednesday, March 5, 2014

Christian Agonistes

GLBT Fortnight in Review, March 5, 2014

BY ANN ROSTOW

Christian Agonistes

Last week, as you no doubt witnessed, Arizona governor Jan Brewer vetoed the law that would have allowed business owners to refuse gay clients based on religious freedom. Jan Brewer is not exactly liberal. But from the moment the bill passed the legislature and landed on her desk, she found herself in the middle of a firestorm of near universal condemnation. I’m guessing the scariest moment was when the NFL indicated they might pull the Super Bowl rather than do business in a state that protects overt discrimination by statute.

Quite frankly, I was surprised. The week before the Arizona veto, we saw the conservative head of the Kansas senate kill a similar measure, explaining it went too far even for her GOP majority. That was nice, but I still assumed that these bills were going to run through the rest of Red America’s state legislatures like sharp knives through rare filet mignon. I assumed that the antigay right had settled on an official counterattack to our marriage victories in federal court: cast themselves as the victims of religious oppression and pass a succession of antigay state laws in response.

Now it seems as if the tactic has been defeated before it can get underway. Yes, some of these bills are still pending. Mississippi has something going. And maybe Missouri. But other legislatures dropped their efforts once they saw the threat to Arizona’s image and economy. And, like me, the antigay right has been caught off guard.

Commentators like George Will, Rich Lowry and Ross Douthat are now urging the gay community to show a little fair play. It’s not neighborly to insist on service from a well-meaning Christian, Will suggested.

If a gay couple is turned away at the door, wrote Lowry, “the market has a ready solution: There are other bakers, photographers and florists. The wedding business is not exactly bristling with hostility to gay people. If one baker won’t make a cake for gay weddings, the baker across town can hang a shingle welcoming all couples for all types of weddings.

“This is how a pluralistic society would handle such disputes. Instead, in the cases mentioned above, the gay couples reported the businesses to the authorities for punishment.”

As for Douthat, his recent New York Times op-ed acknowledged that marriage equality was a fait accompli. And when it happens, then what, he wondered? Will gay activists settle down, enjoy their victory and learn to respect those with different opinions? Or will they push their success to the limit and rudely force the whole country to, um, sell them cakes and flowers? (I paraphrase.)

Sadly for Douthat, it looks as if the mean gays don’t know when to stop. The “religious freedom” bill in Arizona and others like them, he explains, are actually a “way for religious conservatives to negotiate surrender---to accept same-sex marriage’s inevitability while carving out protections for dissent.

“But now,” he continues with patronizing dismay, “apparently, the official line is thatyou bigots don’t get to negotiate anymore.”

In fact, the official line is that discrimination against gay men and women is wrong. It’s wrong in marriage, in business, in employment, in housing, wherever. It’s never been negotiable. To oppose a measure that deliberately authorizes antigay bias is not unsportsmanlike or unneighborly.

As for the marketplace in our pluralistic society, it will self-select for bias all by itself, without any help from state legislatures. It’s likely that most gay couples will seek out friendly businesses for their wedding services, through advertising or referrals or just through instinct. I suppose there can never be a statute against giving grudging or rude service to a customer you don’t like. So Christians will always have that option, and I assume most gay clients would respond by turning to a welcoming shingle as Lowry suggests. But they’ll do it by choice rather than force of law.

My question is this? What will the far right do now? Are they out of strategies? Can they do nothing more than whine about “fairness” and accuse us of running up the score when we’re up seven with three minutes left? We will see.

And finally, we’re not just talking about bakers and dress shops. Last year, two Oregon lesbians were kicked out of their cab at night on the side of the interstate by a driver who disapproved of them on religious grounds. A state agency has just determined that the driver violated state law in the process, and a civil rights case will go forward against him. So, Mr. Lowry? It’s one thing to move on to the bakery down the street with the rainbow sticker in the window. It’s quite another to find a taxi at one in the morning on IH-84.

By the way, the women had been out carousing at a “vegan strip club.” Only in Portland.

Marry Go Round

Most of the news this week, as usual, revolves around our many marriage cases. We had another federal marriage victory, this time in Texas of all places. Friend of the court briefs were filed by some of our GOP allies in the Tenth Circuit. The Attorney General of Kentucky declined to defend the anti-marriage law in the Bourbon State, although the governor will find some other legal team to represent the defense. Various counties in Illinois are allowing marriages even though the state marriage equality law doesn’t go into effect until this summer.

Lambda and the ACLU are trying to join the appeal of our marriage victory in Virginia, since they have a parallel case on track in the Lover’s State. David Boies and Ted Olson are urging the Fourth Circuit to deny this request. Sound familiar? Yes, Olson and Boies are the same advocates who are trying to join the appeal in the Tenth Circuit.

And the beat goes on. If you think marriage dominates the news right now, just wait for this summer and fall when the federal appellate rulings start to drop.

Are The Kids OK?

In Michigan, our fight for marriage looks a little different. Earlier, the federal judge in this case ordered a Prop 8-style trial in lieu of ruling as a matter of law and I think we’re on Day Six as I write. One of the witnesses is Mark Regenerus, author of the discredited paper on the children of gay parents. The University of Texas sociologist studied families in which one parent came out of the closet and determined that the kids from these broken homes fared poorly in comparison to intact families of heterosexual couples.

I can’t remember exactly how the Regenerus research was structured, but it was something like that. But what bugs me is not the bad science; it’s the very idea that marriage rights should stand or fall based on society’s view of who makes a good parent. I know I’ve hashed over this topic in the past, but it annoys me that people on both sides continue to fight over a red herring.

You know, two of the Supreme Court’s major rulings on marriage involved demonstrably bad parents. In one, the justices ruled that a state could not deny the right to marry to men who were delinquent on child support from a previous union. In another, they ruled that incarcerated felons had the right to marry, even if the marriage could not be consummated.

I don’t need a sociology study to tell me that children of deadbeat dads and convicts are worse off than most. And indeed, as I’ve written before, we could argue that millionaire parents or highly educated parents have better outcomes than their poorer or less schooled peers. But just what does this have to do with the right to marry? Why are we putting gay parents to a test that does not apply to any other couple? And why are we, the gay community, trying to pass the test rather than challenge its premise?

Just sayin’. For the twentieth time. You readers are very patient.

Jack’s Wild

I’m certain I have skipped over a number of other marriage news bits, but enough is enough, do you not agree? Let’s just ramble.

It was nice to see Jason Collins get a contract, albeit a short term one, the other day. Too bad he signed with the Nets a few hours after I submitted a column observing that pro teams have little interest in the thirty-something gay journeyman hoopster. I hate that. And yes, it’s all about me.

I guess Disney has decided to sever its ties with the Boy Scouts, since the Scouts refuse to lift their ban on gay scoutmasters. Gay scouts are now okay, but adult men remain barred. Two questions. Why do the scouts keep hanging onto the notion that a gay troop leader is likely a pedophile? And second, if they really believe gay men are sexual predators, why did they go ahead and lift the ban on scouts? They don’t trust a gay man in his 20s or 30s, but a 15 or 16 year old gay kid is just fine? It doesn’t compute.

And did you read about the Washington lobbyist, Jack Burkman, who said he would draft legislation to ban gay players from the NFL? Burkman, who also used to work for nasty New York pol Rick Lazio, later said he meant only to ban gay men from the communal showers, and later still, he said the whole thing was a joke. Meanwhile, quite a few of his clients are distancing themselves from this K Street kreep, and his gay brother, Dr. James Burkman of Seattle, said something ironic about how gay it is for Jack to “stick his head up his ass.”

I was trying to find the exact quote but my computer is having a meltdown that would put a fussy toddler to shame. In the course of my frustrating excursion through cyber-chaos, I stumbled upon an ad for burial insurance, which reminds me of something. Have you seen the TV commercial where Dad has fallen off the ladder and all the kids have rushed to meet Mom in the hospital waiting room? Dad comes out looking goofy and apologetic with his arm in a sling, and the next thing you know, all the kids are convincing Mom to buy end-of-life insurance to cover funeral costs. They even volunteer to make the call together and fill out the paperwork. Cheap little bastards!

Seriously. It would be one thing if the kids recommended more medical insurance in case crazy old Dad takes on another one of his dangerous home improvement projects. But burial insurance isn’t something you suggest to your parents. It doesn’t benefit them. It benefits you.

Majority Rule!

Finally, let’s talk about polls. You know, of course, that approval of same-sex marriage has steadily increased over the last ten years or so. But did you realize that our poll numbers have surged in the last two years? Did you realize that the most recent survey shows almost 60 percent of Americans now support marriage equality?

I guess I hadn’t realized that we gained maybe ten or fifteen points in a relatively short time. But the interesting thing is that conservatives still don’t seem to know that they are now in the minority. According to study by the Public Religion Research Institute, roughly 80 percent of marriage opponents believe that most Americans oppose marriage right along with them. No wonder they’re so surprised by the legal and political developments in the world around them.

Granted, things have changed quickly. Indeed, only 57 percent of strong gay marriage supporters know their views are widely shared, and only 34 percent of all Americans correctly state that a majority favors marriage equality. But I don’t think it will be a secret much longer. That is, unless you’re the sort of person who watches nothing but Fox News and reads nothing but George Will and Rich Lowry.

arostow@aol.com

Wednesday, February 19, 2014

When It Rains, It Pours

GLBT Fortnight in Review, February 19, 2014

BY ANN ROSTOW

When It Rains, It Pours

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

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

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

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

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

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

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

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

This is all in the last week or so!

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

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

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

No Wiggle Room For High Court

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

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

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

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

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

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

Sam’s Club

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

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

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

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

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

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

Are We In Kansas?

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

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

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

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

Lose The Gum, Bro!

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

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

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

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

arostow@aol.com

Wednesday, February 5, 2014

Pussy Non Grata

GLBT Fortnight in Review, February 5, 2014

BY ANN ROSTOW

Pussy Non Grata

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

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

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

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

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

Thanks But No Thanks

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

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

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

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

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

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

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

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

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

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

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

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

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

Ahead To The Past in Indiana

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

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

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

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

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

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

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

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

arostow@aol.com

Wednesday, January 22, 2014

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.

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.

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.

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.

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.

arostow@aol.com

Thursday, January 9, 2014

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.