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    Ann Rostow: Dangerous Times

    By Ann Rostow–

    Dangerous Times

    The prospect of a Supreme Court ruling in our favor once shone in the distance like the bright light at the end of the dark tunnel through which our community was suffering this or that constitutional indignity. Sodomy laws? We can see how they’ll end! Federal marriage recognition? It’s coming! Marriage equality? Just you wait!

    When we saw Gorsuch take the place of the late Antonin Scalia, the balance of the Court stayed much the same. When Kavanaugh took over from Kennedy, however, our reluctant champion retired in favor of a youngish conservative who showed little interest in our cause. Now, well, now we’re screwed. Trading Ginsburg for Barrett was like replacing Thurgood Marshall with Clarence Thomas. Not even swapping O’Connor for Alito fully compares.

    Now, the Court is toying with the notion of revisiting what seemed to be a settled side issue of marriage rights. To wit: when two married women have a child, must they both be listed by the state as parents on the child’s birth certificate? No state examines whether or not a husband is the biological father of his wife’s child before listing him as a parent on official paperwork. The guy could have been doing lab research at the North Pole for a year and, absent some formal challenge, he’d still be considered the dad. The couple could even have used donor sperm and it wouldn’t make a difference. So, why on Earth would a lesbian wife be treated any differently?

    Indeed, this question arose in the immediate aftermath of the marriage equality ruling in a case out of Arkansas, where the state supreme court ruled that the state’s interest in determining biological ties allowed it to reject automatic parenthood for a lesbian wife. If she wanted, the state argued, she could just adopt her wife’s child. 

    First of all, not having what amounts to a certificate of parenthood leads to all kinds of complicated bureaucratic problems throughout childhood, including difficulties with school authorities or even life or death decisions in a hospital. Second, an adoption is an expensive and time-consuming remedy. Third, as mentioned above, husbands are not required to prove biological ties to their wife’s children, ergo the “biological records” excuse doesn’t wash. The High Court rejected Arkansas’ rationales in 2017, issuing an unsigned opinion to that effect without bothering with arguments. The marriage equality ruling, noted the Court, applied to the entire constellation of marriage benefits. And both birth and death certificates were specifically mentioned in that 2015 opinion. 

    As many on our side noted with alarm at the time, the Arkansas decision came with a tarnished lining. Writing for the first time on an issue dear to our hearts, Justice Gorsuch dissented, opining that Arkansas’ commitment to biological ties made perfect sense, and was not really a question of marriage equality. Why attack the entire policy, he wondered, when the plaintiffs could have focused exclusively on the treatment of donor insemination, and left the rest of the state law unchallenged? Justices Thomas and Alito joined him in this objection.

    I am slowly getting to my point, Rachel Maddow-style, because now, another married lesbian birth certificate case has floated up to the High Court, this time from Indiana and a victory for us at the U.S. Court of Appeals for the Seventh Circuit. Given the previous decision of just a few years ago, one would think Indiana would fold its hand. Instead, the state has appealed the pro-gay appellate ruling, and the High Court has asked the lesbians to respond to the state’s petition. 

    It takes four votes to agree to hear a case, and, of course, it takes five votes to win one. You might think a question of state forms and certificates a minor glitch. But the issue is far deeper. As we’ve said, the newly anti-GLBT Court is not going to reverse marriage equality. But it could easily undermine it, with exceptions for birth certificates, with open windows for religious discrimination, with added red tape, with sympathy for Christian bakers and photographers. For the most part, we’ve emerged from our various tunnels into the sunlight. But now, the Supreme Court looms ahead as a black entry to yet another dark journey. And we’re being pushed towards the event horizon. 

    This Is Who We Are

    I love Rachel, but you know what I mean by “Rachel Maddow-style,” right? We start off learning about the invention of the printing press and after half an hour we’re finally discussing, I don’t know, the Voice of America. I really don’t mind that. What bothers me more is her habit at times of repeating the same information over and over again in different ways until I find myself screaming at her screen image: “We get it Rachel!” 

    I was shaken by Rachel’s emotional account of the terrifying experience of seeing her partner Susan nearly die of COVID-19. Mel and I watch her so often and have done so for so long that it feels as if she’s a friend. How easily we could all go fishing together, make cocktails, or stay up late talking about the invention of the printing press! For all the discussion about how Fox News distorts its viewers’ sense of reality, we are ourselves immersed in MSNBC, beginning with Stephanie Ruhle, pausing until Nicole Wallace, and finally picking up again with Rachel. That said, we have long since abandoned the self-satisfied Morning Joe contingent, who at some point became insufferably smug, as well as the oft-incoherent Chuck Todd. 

    Yet for all its leftist leanings, MSNBC is reliably mainstream. There are no left-wing conspiracy cults to my knowledge, at least none with pedophiles, aliens, lizard people, or whatever in God’s name is going on with the far right. We on the left are rooted in the complexities of the real world, in the grey areas, the histories of global relationships, the difficulties of a diverse society. If we “demonize” our adversaries, we do so as metaphor, not literally.

    Going forward into a country led by Joe Biden and Kamala Harris, I don’t know what will happen to the crazies and the QAnons, but I pray they’ll dissipate into disconnected blocs of malcontents, who may gradually return to the fringes of sanity and then merge back into the body politic with their minds intact. We’ll see. We’ll see in a while just how much damage Trump has done to our country and how much of it is reparable.

    Unidentified Standing Object

    Speaking of cults and aliens, what’s the deal with the monolith that appeared in the middle of nowhere and then vanished? I love this mystery, right out of Star Trek. I imagine the chaos on the Enterprise. 

    “Captain! Ensign Lewis has accidentally transported the dilithium regenerator casing onto the planet surface!”

    “Transport it back, Number One. At once!”

    “We can’t do that, Sir! It’s traveled through a rift in space-time back to the 21st Century!”

    “Can we get a shuttle through that rift?”

    “Yes, but we have to act fast. The rift is closing!”

    The crew busies itself with preparations. Lieutenant Mason and Ensign Carter take the shuttle into 21st century Earth orbit. 

    “Can you get a lock on the casing?”

    “On it … Lieutenant! It looks as if the lizard people have returned to the Northern Continent and are trying to reelect a despotic ruler. That will destabilize the ancient governments and disrupt the timeline!”

    “Computer: Lock on to all intelligent reptilian species on the surface and beam them into space.”

    “But, sir!”

    “Transport complete.”

    “It had to be done, Carter. Now let’s get out of here.”

    Goodbye, 2020

    I have another major legal story for you, but I’d rather write about Holiday Season, that Kristen Stewart lesbian Christmas movie that just came out on Hulu. Of course, I forced Mel to watch it with me, even though for some strange reason she’s not a big fan of these sorts of films. 

    The show was exactly the same as every other Christmas movie you’ve ever seen, complete with the hometown visit, the buried family issues, the reappearance of the high school boyfriend/girlfriend (in this case, both) and the scene at the ice-skating rink. And, spoiler alert, it has a happy ending. I loved it. Mel was bored out of her mind, but very nice about the whole thing.

    It’s a little strange that we’ve come to the final chapter of this long, strange year. We have piles of Halloween candy. Thanksgiving is over and done with. College football is a bust. Christmas looms ahead with another round of Zoom calls and Amazon packages. As does New Year’s Day, which can’t come soon enough, and the Georgia Senate elections. Finally, regardless of what happens on January 5, we will at last reach January 20, the last day of the Trump administration. 

    Then what? A few more months and we can all get vaccinated and start to breathe again. We can look forward to the headlines; the return of EPA guidelines, the transgender military ban reversed, dreamers back in business, civil rights once again written into the American bureaucracy. And if we win those seats in Georgia, the sky’s the limit.

    Thanks, Mitch

    Speaking of Georgia, without the Senate, we can look forward to the dismal prospect of fighting the odious Mitch McConnell on every judicial nominee that Biden proposes. That other legal story I mentioned earlier? It was a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, where two Trump judges just ruled against two Florida counties that tried to ban conversion therapy. The two-one majority sent the case back to the lower court with instructions to issue a preliminary injunction against the county laws based on the notion that such laws interfere with the Free Speech rights of antigay therapists. 

    This is the first time a federal appellate court has ruled in favor of conversion therapy, which is banned in 20 states and many more localities. Trying to twist someone’s sexual orientation into heterosexuality against their will is considered dangerous, possibly leading to suicidal thoughts, despair, and depression. It’s considered harmful to minors, and courts have ruled that the public interest in protecting children from such “therapy” outweighs any Free Speech considerations.

    But the Eleventh Circuit, which is now 50 percent composed of Trump-appointed judges, disagrees, creating a tough choice for the gay-friendly Florida counties on the other side. If they appeal to the full Eleventh Circuit, they may well lose again. If they appeal to the U.S. Supreme Court, who knows? For now, they will likely return to the lower court, accept the injunction, argue the merits of the case, and see what happens.

    ’Til Unreasonable Behavior Us Do Part

    Here’s something. I’m reading about a study from England and Wales that showed lesbians were only slightly more likely to marry than gay men (accounting for 56 percent of same-sex marriages), but much more likely to divorce (accounting for over 70 percent of all same-sex divorces every year since 2016).

    The Office of National Statistics that produced the numbers took no position on why the lesbians were quicker to untie the knot, but various observers speculated that women are less likely to tolerate adultery than men. Hmmm. By my calculations, if this is the case, they seem just as likely to indulge in the practice, don’t they? 

    It also might be true that two women are more likely to marry without considering all the pros and cons, given our reputation for bringing a U-Haul to the second date. But if that’s the case, why don’t we have far more marriages than men to begin with? 

    Marriage equality has been the rule in England and Wales since 2014, and it’s taken a few years for divorce rates to form a pattern. Last year, some 822 same-sex couples divorced, including 589 female couples and 233 male couples. Some 63 percent of women and 70 percent of men cited “unreasonable behavior,” which includes adultery, as the cause of their decision to split.

    According to an article in The Economist, women might simply be less tolerant of marital imperfections than their male counterparts. Roughly two thirds of straight divorces are initiated by the wives.

    Ladies, what’s up with that?

    arostow@aol.com

    Published on December 3, 2020