Ann Rostow: Barack Says, Take One Big Step Forward

By Ann Rostow

Barack Says, Take One Big Step Forward

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

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

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

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

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

Is It Finally the End a ENDA?

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

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

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

Hardback Choices

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

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

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

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

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

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

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

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

Hmm.
Now What Shall We Talk About?

Okay, Marriage. Here are the top headlines:

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

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

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

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

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

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

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

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

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

SCOTUS Won’t Duck

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

Say what?

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

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

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

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

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

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

arostow@aol.com