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

Fourteen and Counting

GLBT Fortnight in Review, October 30, 2013
BY ANN ROSTOW


Fourteen and Counting

Yay! Another free state has joined the growing list of places where American gays can tie the knot. New Jersey Governor Chris Christie basically had no choice but to abandon the fight against equality after the state supreme court refused to suspend a lower court order that legalized marriage effective October 21. In rejecting the stay, the unanimous high court noted that the arguments against marriage had little chance of succeeding on appeal should the case continue.

That said, of course Christie did have a choice. He could have easily jumped on the grand stand and insisted on a doomed effort to force the state supreme court to hear arguments and deliver a ruling on the merits of the marriage lawsuit. Yes, marriages would have continued during the appeal, but Christie could have won a great deal of street cred with social conservatives by refusing to accept reality until he saw the river card.

Assuming the man is considering a run in 2016, his decision to throw in the towel is interesting. It suggests that Christie believes a pointless crusade against marriage equality would hurt, rather than help, his chances in a general election, while a gracious concession would not doom his primary campaign. He’s betting that the GOP base has turned its obsessions away from marriage, and that the country as a whole is now willing to punish those who continue to lead the charge against same-sex couples.

Bottom line. Marriage is now legal in 14 states plus the District of Columbia, and a third of Americans now live in a state where gay men and lesbians have the right to wed.
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Trying Our Patience in the Mitten State

In Michigan, meanwhile, a federal judge has ordered the state’s Prop 8-style lawsuit to trial, a fairly rare outcome that we have only seen twice. Back in 1996, Hawaii’s state court marriage suit went to trial, and although we won, our victory was annulled by a constitutional amendment. Second, of course we all remember the Prop 8 trial, another triumph that was put on hold for years until the U.S. Supreme Court finally let the ruling take effect.

Normally, however, federal judges don’t order trials unless material facts are in dispute. In marriage cases, the facts are usually stipulated, and the decision involves only a matter of law. Here, as in the Prop 8 case, a trial serves two purposes; it elongates the case itself, buying time for a hot button to cool somewhat, and it inoculates the court against charges that a controversial issue was decided without careful analysis.

As for the disputed “facts,” I suppose we’ll hear the usual testimony about how traditional marriage bolsters children and families, as if a ban on our families would somehow encourage the stability of our straight neighbors. (I particularly cringe at the mantra: “every child deserves a mother and a father,” as if outlawing marriage recognition would prevent gay couples from having kids.)
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Here’s Mud in Your Buckeye

That Michigan case, by the way, evolved from a challenge to the state’s ban on joint adoption by gay couples. But after the High Court struck the core of the Defense of Marriage Act in Windsor, the plaintiffs expanded the suit into a marriage case.

I bring this up because the Windsor decision has set off a chain reaction of somewhat unusual litigation. In addition to the carefully planned strategic lawsuits filed by our legal eagles, we’ve seen court cases pop up organically as if Windsor summoned forth a rain shower on fertile ground.

Let’s take Ohio, for example. Maybe you remember that two men flew to Maryland a few months ago, got married on the tarmac, and flew back to Ohio where they asked a federal court to force the state to recognize their marriage on the death certificate of one of the husbands (who was on his last legs at the time). The men wanted to be buried together in a family plot that required kinship.

Based on Windsor, the federal judge issued an injunction against the state, (the guy died by the way), and the court is now considering the merits of the underlying principle. Since you don’t issue an injunction unless the plaintiff is likely to win, we could be looking at a breakthrough in this admittedly macabre niche of marriage recognition.

The point is, just as it’s impossible to be a little bit pregnant, the notion of recognizing marriage solely for the purpose of death certificates is hard to imagine. Remember, it is marriage recognition, not marriage itself, which was at issue in Windsor. By insisting on recognition rather than a full blown reversal of state marriage policy, this lawsuit stands on very firm ground, indeed it stands on recent Supreme Court precedent. And yet the distance between marriage recognition and marriage itself is a rather small one in practical terms.
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Marriage Basically Legal in Oregon

Meanwhile, speaking of marriage recognition, I’m not sure quite what to make of the situation in Oregon, where all state agencies have now been directed to recognize same-sex marriages from out of state. An official memo announced the policy in mid-October, based on an opinion by the state attorney general’s office that said the state’s current policy appeared to violate the federal Constitution.

Don’t get me wrong! I think it’s great. For all practical purposes it legalizes marriage in the Pinot Blanc State. But Oregon also carries a constitutional amendment that says only a marriage between a man and woman shall be legal or recognized. Usually, and it seems these days that “usually” has been thrown under the bus, an opinion by an attorney general is a useful guidepost without force of law. “Usually” it takes a court to mandate a change in policy, particularly when that change contradicts the explicit text of the state constitution. 

But not anymore! At any rate, Oregon is also the venue for a federal lawsuit challenging the state amendment, as well as a petition drive to repeal the amendment by public vote next year. Let’s just say that Oregon’s joining our free state list in the near future, and indeed for all practical purposes it already has.
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Next in Line: New Mexico, Hawaii

Finally, we have the rogue clerk syndrome, states where clerks have taken it upon themselves to interpret Windsor as obliging them to issue marriage licenses.

In New Mexico, rogue clerks have led the state supreme court to accept what amounts to an emergency marriage case. The justices heard arguments a week or so ago and could interpret the state’s marriage anytime now. New Mexico is the only state that does not clearly outlaw same-sex marriage either by statute or amendment, although by practice it has never allowed a same-sex marriage. For that reason, our allies had already filed suit in the Land of Enchantment, but Windsor and the clerks forced the state to put its foot on the accelerator.

Likewise, we had already filed a federal suit against Pennsylvania when a clerk took unilateral action that has led to a state court suit. As for North Carolina where we also have a federal suit in progress, a rogue clerk has issued licenses but hasn’t really processed them. I’m fuzzy on this. The NorCal clerk asked the attorney general for advice, and while the attorney general supports equality, he has agreed to defend state law.

I started this item with “finally,” not because I couldn’t spend another 1,000 words on breaking marriage news, but only because I think this is enough, don’t you? Every two weeks we have another new case, another state on the verge of equality, another this, another that. As I write, the Hawaii legislature is poised (we hope) to make marriage a reality (perhaps as soon as next month) a state of affairs that could have led this column were it not for the other equally exciting events of the fortnight. I’m not even getting into the weird lawsuit in Wisconsin (don’t ask), or the disappointing situation in Illinois (where it appears the house cannot bring marriage to a successful vote at this time).

I think I just broke a record for parenthetical remarks in one paragraph.
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Christians Behaving Badly (Again!)

So what else is new? Can we lighten up? I read about a straight guy in Omaha who was beaten up for defending his gay pals against a basher. That was nice of him, but it’s not particularly light hearted.

Or 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.

And here’s something that annoys me. I keep stumbling over articles that focus on the idea that even though same-sex marriage is increasingly within our grasp, there are some gay couples who…wait for it…do not want to get married!

What next? Some women don’t bother to vote? Some African Americans don’t like rap music? Some straight men don’t watch football? How about some journalists don’t pursue platitudes? OK. Maybe that last one was a bit far fetched.
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I Heart SCOTUS News

So here are a couple of High Court tidbits that might not involve GLBT rights, but that concern us none-the-less. First, the town of Easton, Pennsylvania has decided to appeal the “I Heart Boobie” bracelet ruling to the Supreme Court. We’ve discussed this case in the past, only because the question of whether a school district can ban kids from wearing “I Heart Boobie” bracelets is identical to the question of whether a school can ban a gay T-shirt, or an anti-gay T-shirt for that matter.

In this case, some middle school girls were told to take off the cheeky bracelets, which purported to make a statement against breast cancer. The school district claimed, to no avail, that the bracelets were provocative and could disrupt the educational environment. The U.S. Court of Appeals for the Third Circuit agreed with the girls, basically ruling that the bracelets were no big deal. Now, for reasons unclear, the school district has decided to go all the way to the top.

I can’t imagine the High Court will take this case, because the facts here are so innocuous. Still, I mention the petition, because if the Court should accept review, we’ll have to watch closely.

Second, on November 6 the High Court will hear arguments on the question of whether a small town in New York can start the vast majority of their board meetings with a Christian prayer. The U.S. Court of Appeals for the Second Circuit has already agreed with plaintiffs that the prayers constitute an impermissible entanglement with religion, breaching the wall between church and state if you will.

So why did the High Court agree to take a look? It’s a little frightening to think that the Supremes might want to weaken the wall, but what else could they have in mind? The High Court has delivered controversial and conflicting rulings on the separation of church and state over the last decades. Most recently, in 2005, the justices threw everyone for a loop by ruling that a Ten Commandments monument on the grounds of the Texas Capitol was fine, while another one at a Kentucky courthouse (or somewhere like that) was unconstitutional.

Oh, they had their reasons. But let’s just say that the one-two combo did not result in a coherent legal rationale. In view of the existing mess, you have to wonder what they’re up to now.
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arostow@aol.com

Bigotonni Al Pesto

GLBT Fortnight in Review, October 2, 2013
BY ANN ROSTOW



Bigotonni Al Pesto

There’s a lot to discuss this week, but first, I am sad to say that our latest GLBT boycott will require me to actually give up one of my favorite brands. Thus far, my loyal adherence to our community’s official corporate snubs has been relatively painless. Romanian wine? Off the shopping list. Coors beer? I could never really tell the difference between Coors and the others, and indeed, my Coors boycott was so ingrained for so many years that I have trouble drinking the stuff even now when it has been sold to a friendly group and we are encouraged to buy it.

What else? I had never been to a Chick Fil-A in my life and so continue to avoid the franchise with the one exception of the kiss-in at our local branch. Never liked Domino’s to begin with. As for Exxon, I must confess that I have made a few exceptions when forced to choose between political correctness and stranding my car in the middle of, let’s say, western Kansas.

(By the way, Exxon just announced it will offer benefits to the spouses of its married gay staff. A small step in the right direction, but I don’t believe it absolves the company of their decision to strip Mobil staff of domestic partner benefits and discrimination protection after the acquisition.)

Now, however, I can no longer bring myself to buy Barilla pasta. Last week, President Guido Barilla himself told the press he would never market his product to the GLBT community, and observed that gays “can always eat another brand of pasta” if we don’t agree with his views on the traditional family.

After an outraged reaction from around the world, Barilla tried to backtrack, but it’s just too late. Pick another pasta? I always go out of my way to buy Barilla, but not anymore. Never again! Bring on the one that begins with D. I don’t even know the names of Barilla rivals, but I will soon be well versed as I experiment with the competition.

Indeed, further research tells me that other pasta companies have started to take advantage of Barilla’s faux pas-ta, including Garofalo (“we don’t care with whom you cook pasta, the important thing is that you cook it al dente!”) and San Remo (“we’re totally spaghetti and gayballs!”)

Bertolli has a great new print ad with two women sharing a strand of spaghetti that has formed a heart in the middle, and Buitoni has one with various types of pasta arranged like gay symbols. Other companies on a HuffPo list of gay friendly makers include DeCecco (the one I was trying to remember before), Ronzoni, Aldiva, Delallo, al dente, Affreschi, Cipriani and Chef Boyardee. So much for Barilla. Take it off the shelves!

The strangest part of this whole incident is that I feel betrayed and almost hurt by Barilla’s cruel dismissal of my faithful custom. I suppose that because I liked Barilla, I assumed Barilla reciprocated my fondness. And yet after all the hundreds of pretty pasta boxes I’ve purchased, I’m rewarded by a slap in the face? How many more of my emotionally charged commercial relationships are built on a house of cards? I don’t want to do the research so I will simply suggest that homophobic CEOs keep their opinions to themselves in the future.
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Jersey Licious

By rights I should have some trenchant commentary on the extreme wing of the GOP House majority, but I can’t bring myself to go there. Instead, let’s consider the possibility that New Jersey might become a free marriage state before the month is over.

On Friday, September 27, a lower court ruled that marriages must begin on October 21. As you know, New Jersey’s highest court ordered the state to give equal benefits to gay and straight couples back in 2005, but our brothers and sisters in the Garden State got stuck with civil unions instead of wedlock. These unions were never equal, but now that federal benefits are attached to marriage, they’re even less equal than before.

Chris Christie promptly asked the court to put a hold on its opinion until the state supreme court can review the case, but will it? In the past, these marriage rulings in lower courts have always been stayed as litigation continues up the ladder. But that was in the past.

Various briefings on the proposed stay will be due by Monday, and the court will decide what to do with theOctober 21 deadline shortly thereafter. Whatever the outcome, it seems clear that the high court will take up the matter sooner rather than later.

It also seems clear that the court will rule in our favor. Even before the Supreme Court ordered federal marriage recognition last June, New Jersey’s civil unions had been exposed as a second-class status. That violates the New Jersey court’s own jurisprudence and cannot stand. Throw in the facts that the state legislature has passed a marriage law (vetoed by Christie), that a majority support equality, and that most sister states on the top side of the East Coast respect our marriages, and the balance is not just tipped in our favor. We’re poised lightly on the top of the see saw, and the other side is holding down the bottom like a two-ton elephant.

The analogy pre-supposes that top is the good side and bottom is the loser. Now that I think about it, it’s not a very good analogy at all, but I’m keeping it because of my Omar Khayyam rule. The moving finger writes, and having writ, moves on….
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Mountaineers Next On Federal Marriage List

We have another federal, Prop-8 style, marriage lawsuit to add to our growing list, in West Virginia of all places. I know you’re thinking “West Virginia? Say what?” But remember this is a federal case, and West Virginia reports to the U.S. Court of Appeals for the Fourth Circuit, where I think we have a slight edge in Democratic appointments.

As you know, our state cases argue only that marriage equality must be recognized in State X. Since any state with an antigay constitutional amendment need only point to their voter-approved amendment in order to defeat such a claim, we are running out of state court cases. We’ve got the one in New Jersey, another coming to a head in New Mexico, a slightly complicated case in Pennsylvania, a suit in Illinois, and I think that’s it.

Our main litigation strategy has now shifted to federal cases, the ones (like the Prop 8 suit) arguing that state amendments violate the United States constitution. If another one of these cases reaches the Supreme Court and resolves in our favor, marriage equality will become the law of the land.

It was this happy outcome that the High Court ducked last June when it dismissed Prop 8 on a technicality. Hey, we were pleased that Prop 8 died in the process, but we are still looking for the big win that will bring equality to Texas and Mississippi as well as Massachusetts and California.

Now, I’ve lost track of the number of federal cases we’ve filed. There are two in Virginia. There’s one in Pennsylvania (in addition to a state lawsuit contesting the power of a clerk to offer licenses). We’re suing in North Carolina, Ohio, Michigan and in a host of other states where individuals have taken action on their own.

But our most advanced federal lawsuits are claims against Hawaii and Nevada that are both pending before the Ninth Circuit. We lost both in lower courts, and our appeals were delayed during the High Court’s deliberations earlier this year. Now, the combined cases are back on track and should be briefed by the end of next month.

Let’s give the Ninth Circuit a few months to schedule and hear oral arguments, and a few more months to deliberate. In theory, we should have an appellate ruling on marriage by next summer. Remember that the Ninth Circuit has already sort of ruled in our favor in the Prop 8 case. That said, the decision was cramped to say the least. Still, our position is promising and the big question is this:

If the Ninth Circuit delivers a more coherent gay marriage victory next year, will the High Court accept review? Or will they simply allow marriage equality to sweep throughout the western states that fall under the Ninth Circuit and sit on their hands until another circuit rules? If the High Court decides to dither, one of these other federal lawsuits will rise to prominence. At any rate, it feels as if the High Court will have to take the gay version of Loving v Virginia before the decade’s end.

If that seems like a long time to you, look back to what you were doing in the year 2006. It was just yesterday.
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Free Speech has a Pricetag

Oh. I read that Jodie Foster was going out with Ellen’s ex-girlfriend, Alexandra Hedison. I think she’s an actress, or maybe a photographer. Do you care? What ever happened to the DeeJay she was seeing?

And I have to thank newshound Lisa Keen (who runs a great GLBT news service) for the heads up on an interesting case that may or not arrive on the High Court docket this session.

I was astonished that this case is still around since it stems from an incident long in the past, when Crystal Dixon, an HR director at the University of Toledo, took to the op-ed pages of her local paper to decry the false comparison between gay and black civil rights. You know how everyone bleats about “free speech” the minute someone else objects to their latest diatribe? Well, Dixon, who was fired for her opinions, was no exception.

Indeed, Dixon has the right to proclaim any opinion she likes, and the government or the state cannot stop her. But they can certainly fire her if her opinions clash with her job performance. So can a private employer for that matter. In this case, the university had a non-discrimination ordinance and some other gay friendly policies, and the powers that be decided it was inappropriate for a top hiring executive to make public antigay statements. Dixon sued, but she’s lost at the lower court levels and is now trying to get the High Court to take her case.

I’m not sure they will. But it will be interesting if they do. If you work for the IRS, you can be fired for announcing that the income tax is unconstitutional. If you work for a butcher, you cannot claim your religious views prevent you from touching a cow. If Crystal hates gays so much, she can go work for Barilla Pasta. No one’s forcing her to work for a public university pledged to fight bias. And no one forced her write an op-ed for that matter. Now, she wants to have her cake and eat it too.

Speaking of analogies earlier in this column, I have never understood that cake expression. Why can’t you just eat half the cake and save the other half? Wouldn’t that be having your cake and eating it too?

Wikipedia has provided the translations for this core idea as expressed in foreign proverbs. From Switzerland: “You can’t have the five cent coin and the Swiss bread roll.” From the Persian: “You can’t have the donkey and the sugar dates.” From the Portuguese: “You can’t have the sun shining on the threshing floor while it rains on the turnips.” From the Danish: “You can’t both blow and have flour in your mouth.” And my favorite, from France: “You can’t have the butter and a smile on the face of the girl who makes the butter.”

I have the same problem with the French version as the American. Why can’t you have the butter and the smile?
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arostow@aol.com

Discrimination: The Next Big Deal

GLBT Fortnight in Review, September 4, 2013

BY ANN ROSTOW

 

Discrimination: The Next Big Deal

 

It sure looks as if we will eventually win the right to marry, and that we’ll do so with the support of most Americans. Even our opponents have switched strategies, and no longer attack gay men and women as deviant. Instead, they promote traditional values and string out a tenuous argument on behalf of children. Those rationales aren’t going very far, however, since marriage equality has no impact on the kids of straight couples, while our kids suffer in its absence.

 

But there’s another dialogue building decibels around the country. That’s the insistence on the Christian right that gay equality poses a threat to religious freedom, particularly the freedom of Christian business owners to deny service to GLBT clients. Even as we hail the new majorities that back our right to marry, we overlook to some extent the even larger majorities that unthinkingly support the “right” of a Christian entrepreneur to close his or her doors to gay customers.

 

It seems only fair, right? After all, would you expect a Jewish merchant to serve a Nazi? Would you demand that an African American caterer host a Klan wedding? And why would a gay couple want a hostile photographer hanging around muttering under her breath while taking deliberately bad photos of their wedding?

 

First of all, you don’t compare the gay client to the Klansman or the Nazi. I mean, come on. Quite frankly, I’m not sure if or how a Jewish photographer could refuse to serve a Nazi bride, but unlike gays, Nazis are not protected under antidiscrimination law. But apart from that, the analogies have to be presented in reverse. Can the Klansman refuse the African American? Can the Nazi refuse the Jew? We are not the evil death squads here, folks. We are the minorities under attack. We have not spent our history hanging Christians from tree limbs or tossing them in gas chambers and yet we hear these outrageous comparisons tossed into the public square whenever a Christian merchant feels threatened.

 

I had to get that beef out of the way, but more profoundly, Americans have a deep respect for religion, and an even deeper respect for the Constitutional principles that protect our right to practice our faith. We instinctively, and rightly, believe that the government may never compel a citizen to act against his or her deeply held religious beliefs. No wonder that so many of our gay rights bills have included loopholes for churches and religious organizations.

 

But where do we draw the line between legitimate religious principles and illegal bias? Can someone just “announce” their faith requires them to discriminate? We would not accept that in a racial context. Why does everyone accept this idea where we’re concerned?

 

The answer is that up until recently, a religious denunciation of homosexuality was accepted, normal and taken for granted. The assumption that disapproval of gays is part and parcel of Christianity has not been seriously disputed, even as this attitude has been relegated to the far right as mainstream Christianity rethinks its stance. Meanwhile, over 80 percent of Americans (you read that right) still believe a Christian business should be allowed to discriminate.

 

And here is the new hook that our adversaries are starting to emphasize in their continuing and losing battle against our progress. Gay rights and marriage equality are a threat to religious freedom, they say. Gays are no longer the butt of discrimination. Now the real victims are Christian businesses like Elane Photography, the company that has been battling the state of New Mexico for the right to refuse a job at a lesbian wedding.

 

In Washington, it’s a florist who is fighting to deny service to two men. In Oregon, an antigay bakery has just closed its shop over the same issue. We’ve read about biased bridal shops, country inns and caterers. And each of these cases is trumpeted throughout the far right as a fund raising alert. Your rights are being taken away!

 

The legal principles, meanwhile, are simple. Governments may not pass or enforce laws that target religions. But they can pass a law that has a general and legitimate purpose, even if a religious practice is inadvertently affected in the process. For example, a law against drug use that prohibits religious peyote rituals can stand. Likewise, a statute that prohibits discrimination in public accommodation, even if it includes sexual orientation, is a general law that serves an important public purpose. If you don’t like gays and lesbians, fine. But you still have to do business with them, just as a racist restaurant owner has to accept all comers.

 

In New Mexico last week, the state Supreme Court issued a powerful ruling upholding this basic premise. Photography business owners Elaine and Jonathan Huguenin made a range of arguments, to no avail. In his masterful concurring opinion, Justice Richard C. Bosson was more forgiving than I, acknowledging that Elaine Huguenin and her husband “are now compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.

 

“On a larger scale,” he continued, “this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives, all of us must compromise, if only a little, to accommodate the contrasting values of others….The Huguenins are free to think, to say, to believe as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitutional protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

 

“In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, it is the price of citizenship.”

 

 

Believe me when I tell you that this case has fired up the religious right, indeed an appeal to the U.S. Supreme Court is possible. Among other things, some people (including my favorite Republican lawyer Dale Carpenter) have argued that a photography business has a particular claim to freedom of expression that would not be the case for a florist or baker. That said, not only do I disagree, but I don’t see why a florist or baker would not be able to make a similar appeal to artistry, but this is a side issue. This case is the first of many that may make headlines in the near term, and although it has nothing to do with marriage equality, there’s still a connection. As I said, the far right is starting to use the avenue of antidiscrimination law as a new route to flank our troops. And for obvious reasons, wedding businesses have emerged at the forefront of these faith based complaints.

 

I have another point to make. I was moved by what Justice Bosson had to say about the Huguenins. I have no patience for the idea that Christianity compels an antigay attitude. But you know what? If you truly believe that your faith rejects homosexuality, if you truly believe this regardless of how wrong you are, I can understand why you would go to any lengths to avoid being forced to effectively support what you see as a crime against God.

 

As I said before, our movement has been fast and furious. Left behind by the pace have been millions of Christians who have been raised on the notion that our relationships are sinful. They have spent years immersed in this fact of faith. Not everyone can change overnight. And twenty years from now, there will be no excuse for the Huguenins of this world. But right now there is. They are wrong, but I understand where they’re coming from, and I agree with Justice Bosson that it is sobering to require them and their like-minded cohorts to act against their faith. I also agree with Bosson that this is the price of doing business in our remarkable country.

 

I have always found it useful to imagine myself in the shoes of our adversaries. If you truly believe homosexuality is a sin, a perversion, a gross mutation of nature, then of course you oppose marriage equality. Of course you recoil at gays on TV. You wouldn’t want a gay man or lesbian teaching your kids, or even driving the school bus. So what do we say? Do we argue that gay men and women should marry and teach? Well yes, of course. But in the long run, we argue that homosexuality is not sinful, that gay relationships are not perverted, that these embedded ideas are wrong, that our adversaries should rethink--- not their political views--- but their underlying assumptions.

 

The good news is that our national debate is getting to this crucial stage, the stage where we wrangle with the root cause of homophobia that lies beneath our policy confrontations. This is where the debate over discrimination lies, and this of course is the only debate that really matters.

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The Taxman Cometh

 

Well, you have to forgive that long essay in a column that purports to summarize the news of the last two weeks. Personally, I thought that New Mexico ruling eclipsed the other GLBT news, so there you go. But you may disagree.

 

You may think, for example, that the top story is the news that the IRS will recognize all married couples, even if they live in a state that bans gay weddings. I have to agree, that’s pretty big news, and now, Mel and I will file a joint return.

 

I don’t care if we pay more. I only care that the IRS loves us and respects our marriage! Furthermore, it’s a sharp stick in the eye of Texas. Instead of Mel and me being the rebellious married couple, now it’s Texas that rebels against federal policy by refusing to acknowledge us. The tables are turned, which albeit symbolic, feels huge to me. Plus, now we can stuff all our tax stuff in one box and my tax problems will be hers as well.

 

You should also know that a foreign butter substitute called Flora has managed to annoy the international gay community with what Unilever insists was an unauthorized commercial. The ad showed a kid coming out to his parents, which sent a bullet heading to the father’s heart. The upshot was that the father was advised to use Flora as a heart healthy shield against the various cardiac threats that life might send his way. Unilever promptly apologized and pulled the ad, which was running in South Africa.

 

Again, the moral of the story is that corporations can no longer get away with the slightest slight to our community, which is a good thing.

 

Finally, Mel and I were going to go see The Butler last night, but instead we stayed home and became hooked on a rerun of Sharknado, which is quickly becoming a cult classic. I’m not sure you can call it a classic, since it was first aired this summer. But honestly, you have to see it. Not since The Legend of Boggy Creek have I enjoyed a movie for its sheer absurdity. Sorry for the spoiler, but the scene where the hero gets eaten by a shark but fights his way out of the shark’s stomach with a chain saw was unforgettable.

 

That said, it’s been years since I saw the Legend of Boggy Creek, but I highly recommend it. My favorite scene is the montage of the changing seasons that illustrates the heartbreaking loneliness of the deadly swamp creature.

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arostow@aol.com

RIP Sarria

GLBT Fortnight In Review, August 21, 2013

BY ANN ROSTOW

 

RIP Sarria

 

I’m sure San Francisco readers have heard about the death of Jose Julio Sarria, The Widow Norton, who died of cancer in New Mexico at the age of 90 the other day. When I lived in the Bay Area in the 1990s, Sarria was considered a colorful character in our community, always good for a flamboyant laugh. But when you consider what this man did for gay rights and gay visibility at a time when we were universally despised and ridiculed, you recognize that beneath the stereotypical diva persona was a tough activist, with the type of courage a Navy SEAL could only aspire to match.

 

Luckily, none of us in younger generations need face the waves of hatred that washed over our predecessors. For all that we have to complain about (and we still have quite a bit) the world has moved far beyond those days, and we have people like Sarria to thank for that.

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Land of Enchantment Stepping Up

 

And speaking of New Mexico, the Clerk of Dona Ana County has decided to offer marriage licenses to same-sex couples, even as litigation continues to move through the state court system. You may recall that a clerk in Pennsylvania did the same thing last month, triggering a lawsuit from the powers that be in the Keystone State.  In New Mexico, however, the rogue move has legal foundation in an opinion from the state Attorney General, asking the state high court to declare bans on marriage unconstitutional.

 

Recently, the New Mexico supremes refused to fast track the two marriage equality cases that are now pending in lower state court. The decision to effectively delay the cases led Clerk Lynn Ellins to determine that same-sex couples in her county should not have to wait a year or longer to tie the knot, particularly now that the Supreme Court has struck the Defense of Marriage Act.

 

The High Court’s DOMA ruling has no technical bearing on state law, since it only concerned the question of whether the federal government has the right to discriminate between gay and straight married couples. But there’s no question that its underlying support for equality has had a broad impact on public officials and other courts. And, well, let’s just say that it feels as if the High Court’s twin rulings have tipped the playing field in our direction.  

 

Hawaii, meanwhile, is the latest state to begin a hard push towards legalizing marriage by legislative action. Hawaii is, of course, the birthplace of court-ordered marriage equality, even though the pro-gay decisions of 1993 and 1996 were rebuffed by voters. But the Hawaii voters who amended their constitution in the late 1990s did not pass the usual type of marriage ban. Instead, the constitutional amendment allowed the legislature to declare that marriage was a heterosexual union. That means that the legislature can reverse itself without violating the antigay amendment, and it looks as if they will work towards that goal this fall.

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My Summer Vacation

 

You know, there are other gay marriage stories floating around this week, but the plot lines remain the same. We want equality. Many people agree that equality is right and inevitable. We are making progress in courts and legislatures.

 

That said, why belabor the details? Instead, let me tell you about our trip to the Solheim Cup in Parker, Colorado last week. A couple of years ago we went on an Olivia cruise, and there were moments last week that reminded me of an Olivia cruise on land. That said, we wished Olivia had been in charge of logistics because much of the week devolved into a zoo of long lines, long waits, long walks and unnecessary mishaps.

 

We tromped around this lengthy golf course in 95 degree heat at an altitude of God knows how high until we approached cardiac arrest. We had no idea what was happening because there were very few signs. When we arrived at a green, we were quickly displaced by more aggressive fans who blocked any view of the players. When we splurged on the special bar pavilion, they stopped checking passes so the whole place was overrun and the bar lines were 45 minutes or longer.

 

We had a horrible meal at an expensive French restaurant. The next night, after one too many gin and tonics, Mel and I had one of our rare fights because I could not decide on a restaurant. She suggested I drop her off at the hotel and “go wherever I liked.” We ended up eating cheese and pouting in our hotel room. (At least it was cheaper than the French place.)

 

To top it off, as many of you golf fans are aware, the American team was quickly in the hole and wound up losing by the largest margin in the history of the Solheim Cup. Our car rental was double the expected price. The hotel pool was set at the temperature of the hot tub. And we got continually lost, even after four or five days of driving the same route. That said, there were a lot of lesbians! I love lesbians, but not even our many sisters could save this trip from near disaster.

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Most Annoying State Ever

 

So, I think I read that Thailand was considering marriage equality. As I implied earlier, I’m kind of tired of endless marriage news, so I did not read carefully. Plus, I associate Thailand with child prostitution and soapy tasting lemon grass, so whatever. Still, it would be nice.

 

I suppose I must add that the New Jersey marriage lawsuit was argued in lower state court on August 15. I’m frustrated by this open-and-shut case, which continues to crawl laboriously through the Garden State courts, even as the outcome is not in dispute. As you may recall, the New Jersey Supreme Court has already ruled that gay couples must be given the same benefits as their heterosexual neighbors. The pathetic civil unions that were put in place to achieve this goal are clearly insufficient to meet the test of “equality.” And yet the state supreme court has forced us to litigate this complaint from scratch, starting with the lower courts and eventually returning to the justices.

 

It’s not fair! Let’s imagine that I sued you for $100 and the New Jersey Supreme Court ruled that you must pay. Instead of complying, you only give me $50. I go back to the Supreme Court to demand that the justices enforce the original ruling, but instead of backing me up, they make me file a new lawsuit to get the full amount. That’s exactly what has happened over the last several years in New Jersey and it’s more than infuriating. Add to that the fact that the legislature has also passed marriage equality, only to see it vetoed for no reason by Chris Christie, and you can put New Jersey at the top of the list of States That Should Have Marriage Equality But Don’t Due To Public Cowardice.

 

Christie did sign the ban on reparative therapy recently passed by the legislature the other day, but so what? Are we supposed to give him a nice pat on the back? I don’t think so.

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Juliet and Juliet Sage Continues

 

Do you remember the story of Kaitlin Hunt, the teenaged Florida girl charged with some horrible sounding sex crime for having a love affair with a younger classmate? Since the girls were something like 14 and 18, the tryst violated some state law and Kaitlin found herself facing jail and sex offender status. The DA offered a deal that would have given Kaitlin a couple of years of house arrest and would not have forced her to become a sex offender, but the Hunt family declined the deal.

 

Kaitlin became a cause celebre in the GLBT community, complete with a Facebook page championing her unfair dilemma. And it was unfair. Teenagers, whether gay or straight, should not be threatened with prison for having affairs for God’s sake. It’s crazy. What should the age range be? I don’t know. Five years maybe? But in any event, we (the gay community) also felt instinctively that Kaitlin was also being targeted because she and her friend were lesbians.

 

As you may know, so-called Romeo and Juliet laws exist to make sure that innocent teens don’t suffer the same fate as older predators. In the past, we’ve seen cases where Romeo and Juliet laws don’t apply to gay teens, and at first I assumed this was the situation in Florida. But in fact, Florida’s Romeo and Juliet law applies to everyone, including Kaitlin. The law, which covers consensual affairs between kids 14 and older who are involved with someone within four years of their age, simply allows the prosecutor to offer exactly the deal that was offered to Kaitlin, to wit a period of house arrest with no sex offender status.

 

The question remained as to whether Florida had historically turned a blind eye to straight teen “offenders,” but I haven’t read anything to suggest that this was the case. Ergo, although the situation was absurd, it did not appear to be antigay.

 

But we still supported Kaitlin, because c’mon! We’ve all been there. The girls were in love, and there’s nothing like being in love when you’re a teenager. It’s insane. I remember when my first love broke up with me, I decided I would quit college, move to her house and lie outside on the street for days and nights if necessary until she changed her mind. (It never occurred to me that this course of action might render me less attractive as a potential girlfriend. And no, I did not follow through with the plan.)

 

So here’s the latest. Kaitlin, who has been waiting for the next developments in her case, has been arrested and tossed in jail for violating the court’s requirement to avoid contact with her girlfriend. Instead of keeping her head down, she has been texting and sexting hundreds of messages, news reports say. The DA has now withdrawn any and all plea deals and is charging ahead towards trial. Kaitlin, Kaitlin, Kaitlin.

 

As we mentioned, a teenager in love is not in possession of a right mind, particularly a lesbian if you’ll permit me to generalize. Asking Kaitlin to avoid contact was like asking a hungry dog to stay away from the T-bone you just placed in his dish. But still. Honey, could you have just sucked it up for a few weeks until this ordeal was behind you? As for the DA, do you really want to put this kid behind bars? Is that why you went to law school?

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Young Love

 

Finally, speaking of prison, my friend and colleague Kim Corsaro inspired us to watch the first season of Orange is the New Black on Netflix. It’s one of those potato chip series, much like Homeland and House of Cards, that you can’t stop consuming from one episode to the next even as the clock strikes midnight and later.

 

It almost, and I repeat almost, made me want to go to prison myself. I can only hope that if Kaitlin is sent away, she emerges with a fabulous book or movie deal, assuming she’s a good writer. Surely Hallmark or Lifetime will consider an offer.

 

And now, I find myself with another paragraph to write. Not enough space for a new topic, and yet it’s too soon to draw this column to a close. Oh, but here’s a perfect tidbit for the Bay Area reader. In fact, maybe you already know that Steve Young and his wife are supporters of same-sex marriage, and even put a “No on Prop 8” sign on their lawn back in 2008.

 

Now, the masterful Mormon quarterback and his wife are scheduled to speak to gay Mormons at a conference in Salt Lake City, in part because Steve’s wife’s brother is gay. Did you already know that? Sorry, it takes time for these things to travel to Central Texas.

 

Hey. Speaking of Steve Young, are you ready for some football?

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arostow@aol.com

The Heat Is On

GLBT Fortnight in Review, August 7, 2013

BY ANN ROSTOW

 

The Heat Is On

 

August in Central Texas is not a happy time. You know those scenes in horror movies where the scientists are working at the South Pole and have to plod from one metal building to the next in order to confer with a colleague? The laborious hundred yard trek takes forever. Their breath freezes. Their faces and beards are covered with ice. And their colleague has been half eaten by a mutant Arctic spider, so the whole errand was pointless in the first place. Austin in deep summer is just the same except in reverse and (as a rule) without the mutant spiders.

 

But at least I have the small solace of being able to enjoy my annual use of the word “canicula,” which is one of those words that becomes pretentious if tossed out more than once or twice a year. (Mentioning the word itself outside of its use in context doesn’t count.) I haven’t decided whether to use it this week or in the next column. We’ll see where it might apply. But I know it’s available, just waiting for me. The pleasure is akin to writing about an event that destroyed 10 percent of some population and being able to use the verb “decimate” with complete accuracy even as it defies its common definition.

 

Normally, the torpor that settles into the depth of the canicula saps the energy from our GLBT news, leaving us with a desiccated hull of old stories and dry statistics. But not this year. The High Court’s gay rights decisions in late June have flowered into many blossoms of new court cases, new legislative optimism, and new attitudes across a range of public forums. The twin victories have strewn a potent fertilizer on GLBT issues across the land, and it seems as if every case and controversy is taken seriously and/or reviewed in our favor. If I can extricate myself from this labored analogy, I’ll compile some examples.

 

For one thing, it feels as if we are winning the sort of legal disputes that used to be aborted by the first court that took a look. You may remember the two Ohio men, who convinced a judge to order the state to recognize their Maryland marriage on an impending death certificate last month. (One of the men is dying.) This month, a federal court in Pennsylvania has ordered a law firm to pay a death benefit to the widow of one of their lawyers who died of cancer. Previously, that death benefit of about $50,000 was earmarked for the dead woman’s parents, who disapproved of her same-sex marriage.

 

The House Republicans who defended the Defense of Marriage Act across the board have now abandoned any and all legal activities, period. They have withdrawn from all pending cases even though they could theoretically have developed alternative anti-marriage arguments in the wake of the Windsor ruling.

 

Public support of gay rights and marriage equality is growing or holding steady in the aftermath of the decisions. Politicians are either jumping on the marriage bandwagon, ducking the subject, or issuing vague remarks that would have been hailed a decade ago as a sign of progress. A raft of new lawsuits have been filed by our legal eagles, as well as another handful by individuals acting on their own. A county official in the Philadelphia area has begun offering marriage licenses in defiance of state law, and although that action is heading for the courts, the move feels less like a symbolic gesture ala San Francisco in 2004 and more like a harbinger of future state policy.

 

Is a backlash, or a mini-backlash in our future? I don’t think so. Instead of two steps forward and one step back, we seem to be moving ten steps forward and six inches back, an encouraging pace indeed.

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There Oughta Be a Law

 

The sheriff of East Baton Rouge has apologized for a prolonged park sting operation in which a dozen or so men were arrested for soliciting a felony under the Louisiana sodomy law. After the High Court struck sodomy laws as unconstitutional, they still remained on the books in states, like Louisiana and Texas, where lawmakers simply refused to repeal them on principle. Of course the sodomy statutes were unconstitutional. But apparently, that didn’t stop the Yahoos in East Baton Rouge from sending undercover cops into the park for a two-year sting fest.

 

Once the men were arrested, the charges were subsequently dropped by district attorneys familiar with the notion that unconstitutional statutes no longer carry penalties. But they were arrested nonetheless! Not a pleasant process, I’m sure.    

 

In an even stranger case, the distasteful Virginia Attorney General and gubernatorial candidate, Ken Cuccinelli, is trying to restore a version of his state’s flat ban on anal and oral sex that would only apply to 16 and 17 year olds.

 

Let’s back up for a minute. The Virginia sodomy ban, which applied to everyone, was effectively struck by the High Court along with all the other state bans on consensual non-commercial sex. But naturally, it remained on the books as a symbol of the Loving State’s commitment to, ah, traditional intercourse.

 

Along comes a 47-year-old guy, who sounds like a bit of a sleazebag frankly, who tried to convince a 17-year-old girl to give him a blow job. Since the age of consent is 15, the man broke no law in his efforts. Nonetheless, he was charged under a law that makes it a felony to solicit a minor to commit a felony. The girl was a minor, but the suggested underlying felony was based on the technically defunct sodomy law. Nevertheless, he spent a year in jail and had to register as a sex offender.

 

In March, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of Mr. Blowjob and told Virginia to shove its sodomy law where the sun don’t shine, Cuccinelli has appealed to the U.S. Supreme Court, arguing that the state law could survive the Lawrence decision if it applied only to minors under 17, but above the age of consent. Following this line of thinking to its logical conclusion, Cuccinelli’s Virginia would allow a high school junior to have intercourse, but not oral sex--- regardless of sexual orientation by the way.

 

I can’t imagine that the justices would bother with Cuccinelli’s appeal, but still! The man’s a freak. Keep an eye on the election this November and hope that Terry McAuliffe can pull out a win. Last month, the Democrat led Cuccinelli by a few points.

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Cold War

 

The biggest GLBT news story this week is one that we will be talking about for the next six or seven months. I am sort of sidestepping the discussion only because I know it will be a major topic of debate for the near term.

 

I’m talking, of course, about the Winter Olympics in Russia, where just a few months ago, the country instituted a nationwide ban on pro-gay “propaganda,” a law that prohibits pride demonstrations, gay civil rights statements or writings, rainbow flags, or anything else you can think of.

 

What do we do about this? It feels too late to change the location. And we know from experience that Olympic boycotts are problematic. Olympic rules, in turn, forbid political statements at the games, so athletes who protest might run into sanctions. Or would they? Although the Olympic officials have been dithering around, I would think that in this situation they could simply turn a blind eye to any athlete who wears a rainbow pin or defies the law in a gesture of solidarity.

 

Meanwhile, the International Olympic Committee claims that Russian officials have assured them that the law will not be enforced against visiting athletes. Really? The St. Petersburg politician who authored the first “no promo homo” law in his own city insists that the law’s the law and no one can ignore it. That said, he might just be a rightwing blow hard with no influence on the situation.

 

Some are calling for a boycott of Russian vodka, Stoli in particular. The brand is owned by a Luxembourg-based parent company, but the ingredients are still Russian and hey, it’s a matter of principle. We’re also boycotting Russian products in general, so you can say goodbye to the little nesting dolls and go buy your caviar from Iran.

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I Heart Uruguay

 

So, Uruguay did legalize marriage equality the other day. I was confused about that, but the news is good. And the full U.S. Court of Appeals for the Third Circuit has ruled that the middle school girls who were disciplined for wearing plastic bracelets reading “I (heart) boobies” can continue sending their coy breast cancer message.

 

The school in question argued that the bracelets were too provocative for middle school and could lead to other, more salacious bracelets, operating under cover of the First Amendment. Schools do have the power to regulate disruptive clothing to an extent, but the courts have determined that the booby bracelets are simply not that big of a deal. Further, the Third Circuit judges ruled, the school is not allowed to prohibit a political statement based on the fear that some other sexier manifestation might arise. Presumably, if an “I (heart) big dicks” bracelet were to circulate, the school could take action at that time.

 

The news is interesting to us, obviously, because the tension between schools and First Amendment rights so often rises to the surface in gay cases. This time it’s a breast cancer bracelet. Next time, it could be another gay rights T-shirt and a school that claims erroneously that such shirts bring sex into the classroom.

 

Oh, and how about this little vignette? Apparently, back in late June, the driver of an airport shuttle in Albuquerque made a gay couple go sit in the back of the bus because they were holding hands and singing. The owner of the shuttle company suspended the driver and apologized to the men, and the mayor has called the driver’s behavior “inappropriate.” See? It’s just as I was saying at the start of this column. This sort of incident would have been ignored or laughed off a few years ago. Now, even the mayor feels obliged to speak out.

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Christians Behaving Badly

 

While we’re in New Mexico, keep an eye out for a key state supreme court ruling on whether a wedding photographer has the right to refuse a lesbian client under the state’s antidiscrimination law. Oral arguments were heard in March, so a ruling could emerge any day. And as you know, this is far from the only instance of a Christian business owner claiming immunity from state laws based on religious freedom.

 

For example, there’s another case pending in a lower court in Washington, where a florist refused service to one of her regular customers, a gay man who was getting married. Again, the florist claimed that supplying a gay wedding would violate her religious beliefs. This case has been combined with a complaint brought by the state attorney general against the florist, so the florist faces both her rejected client and the state government itself.

 

I will save my usual rant over misplaced religious freedom for another column, but I did read recently that most Americans believe small businesses should be allowed to refuse service to gays on religious grounds. Interestingly, the same survey noted that most Americans do not believe that atheists should be allowed to refuse service to Christians.

 

Think about this for a minute. It shows that no matter how far we have come, we still fall far short of winning the hearts and minds of our heterosexual fellow Americans. You cannot simply “believe” that disapproval of gays is a religious commandment any more than you can “believe” that racism is based on scripture and protected by the First Amendment. Well, I should say that you can believe anything you like, but such a belief should not be given automatic credence when a court of law examines your claims. I mean, really. Could the florist deny service to a Muslim? Answer, no.

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arostow@aol.com