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    Ann Rostow: Is There Hope for the Roberts Court?

    By Ann Rostow–

    Is There Hope for the Roberts Court?

    Buzzfeed’s legal whiz, Chris Geidner, has an interesting article about John Roberts, speculating that the Chief might be evolving our way ever so slightly. It’s a slim reed, but it’s something to hang on to. It has some tensile strength.

    Obviously, we all remember how Roberts twisted himself in a bit of a knot in order to uphold the individual mandate in Obamacare. It’s not hard to view the current Court, not as 5–4 conservative or even 4–4-Kennedy, but as a split between 3 tea party types, two old school Republicans (Roberts and Kennedy) and four liberal/moderates. And like the never Trumpers on the right, the old school types have a Burkean regard for continuity and institutions. (We once found that attitude stolid and unhelpful. In the age of Trump, we’re all for it.)

    Second, as Geidner reminds us, you’ll also remember that we arguably won the fight for marriage, not in June of 2016, but months earlier when the Supreme Court decided to let appellate court rulings in favor of equality go forward in the fall of 2014. It takes four justices to accept review. Back in late 2014, we had just won marriage rulings from the U.S. Court of Appeals for the 4th, 7th and 10th Circuits, while another victory was at hand in the vast 9th Circuit. By allowing those marriage rulings to take effect, the High Court effectively legalized marriage in three fourths of the United States.

    If John Roberts had opposed marriage with all his heart, he could have talked his three conservative buddies into reviewing all those marriage cases. Yes, they might lose, and probably would lose. But by allowing marriage to take effect in 35 states, they would lose for certain and they would lose immediately. Yet, instead of rolling the dice and stalling, Roberts went along with a strategy that allowed the Court to make marriage equality a fait accompli well before the nine justices would be obliged to cast their votes.

    Was that the behavior of a hardened reactionary? Or was that the decision of a man who saw the writing on the wall and chose to protect the Court by taking incremental steps? A man who once (absurdly) saw himself as an umpire calling balls and strikes, and who has now seen what happens when those calls are missed.

    The unintended consequences of decisions by the Roberts Court have led to a decline in minority voting through voter ID laws, the loss of abortion clinics and perhaps a rise in maternity deaths, plus the new flow of tens of millions in unidentified cash into our elections. After a dozen years, is he starting to think twice, or maybe three times before he pulls the trigger on some classically conservative legal thinking? If so, what will he do about the Colorado law that outlaws GLBT discrimination in public accommodations? Will he rule that religious business owners have every right to ignore it, just because? Maybe, maybe not.

    I have a tendency to imagine a well of intelligence and fairness hidden deep inside Chief Justice Roberts, but I’m not sure why, and I’m frequently disappointed when my fantasy Chief fails to make himself heard.

    Pet Friendly Skies

    As usual, my GLBT news research has led me down some unrelated side streets. How about the recent fuss over pets in airplane cabins? Here’s a Washington Post article about a man who sat down next to another man with a large Labrador in his lap, and was immediately attacked for about 30 seconds and needed 28 stitches in his face! The lab was an “emotional support” animal. Frankly, I think support animals are great. But not emotional support animals. Honestly. It’s one thing to keep a mouse or a small bunny in your pocket. But don’t tell me you can’t live a normal life without dragging a large attack dog around on planes and in restaurants.

    And since when do we all have the right to feel emotionally supported every minute of every hour?

    I guess there’s a 1986 law that requires airlines to make allowances for support animals, but it also seems as if the regulations have generous loopholes for vague forms of companionship. “The result,” says the Post, citing airline officials, “has been a surge in poorly trained animals that has turned some flights into airborne menageries, with dogs blocking beverage carts, cats urinating on seats and ducks wandering the aisles.”

    I loved that image so much I had to share the whole story. For the record, I just read about the duck, Daniel Turdunken Stinkerbutt, and he sounds pretty incredible. His owner was in a bad accident and it does seem as if he is extremely supportive. He wears shoes and a diaper in public.

    Did We Just Take a Step Forward?

    Moving right along, I was reading about the new Virginia legislature—the one that went from big GOP majority to a virtual split last November. It seems, according to the Richmond Times Dispatch, that conservatives have lost their appetite for sour attacks on our community and other minorities. Of the 1,300 bills introduced so far, there are no bathroom bills or anti-abortion proposals or any other favorites from the right-wing agenda.

    No sooner had I added the Virginia story to my news list did I encounter a more general article on the same subject. The headline in The New York Times of January 22 said it all: “Wary, Weary, Or Both, Southern Lawmakers Tone Down Culture Wars.” The gist of the article was that repeated failures to pass bathroom bills and/or religious freedom bills have been taking their toll on conservative legislatures that have been lax in dealing with bread and butter issues.

    Yes, North Carolina got a bathroom bill. But they paid a heavy price—one that forced them to step away from the original law and one that convinced many other states to avoid the dangerous terrain. Yes, Mississippi got its religious freedom bill. But Gay Law is just waiting to sue at the moment someone tries to put it to the test. (The Supreme Court declined to evaluate the law because it has yet to be enforced against anyone.) And did everyone notice the competition over Amazon’s second headquarters? Do you really think Amazon is going to set up shop in a state that goes on record in opposition to GLBT civil rights?

    Not only is everyone tired of the divisive fights, but activists on both sides of the culture war are waiting for the High Court to rule on the Masterpiece Cakeshop case, a decision expected in a month or so that might tell us where the Court stands on the balance between civil rights laws and religious freedom. (Note that there is also a technical decision available to the Court that would tell us very little.) It seems that lawmakers in conservative states are keeping their powder dry until the Court gives them a signal one way or another.

    Well, it’s good news, I guess. Like many of you, I’ve displaced some of my political ardor, moving it from gay rights to American human rights in general. Hey, we can’t have the former without the latter.

    We All Need a Support Duck

    You know what? I think I need an emotional support animal. My pugs died last year, but I have my cat. Yet the cat, much as I love him, does not give me emotional support. Instead, I get demanding purrs, sudden assaults for no reason, and indifference. Yes, he can be very sweet at times, but I can’t count on him.

    And don’t accuse me of making light of serious cases such as the injured woman who relies on Daniel the duck. True, I am doing that. But I don’t like negative feedback as a rule. Plus, all of us who vote to the left of, say, Sons of the Confederacy, have been damaged over the last year and continue to suffer the slings and arrows of the Trump administration. And there’s nothing we can do about it save wait it out.

    I recently declined to attend an impeachment protest, because I don’t think impeachment is an answer. You can’t impeach a man for horrendous incompetence, cowardice, ignorance, and cruelty if that man won the electoral college with all these features in full view. And also, I am coming to dislike Mike Pence more and more. Trump lies like a small child who doesn’t quite understand the difference between right and wrong. Pence is Eddie Haskell on steroids. Trump is pathetic. Pence is nasty.

    So, we wait. We win the midterms and use our congressional authority to pen Trump in or maybe manipulate him to our ends. Then we restore sanity to the world in 2020 and see how many decades it takes to rebuild America’s credibility.

    Meanwhile, we need supportive pets. And cocktails.

    Citizens Split

    If you are American, are in a binational relationship and live overseas, are your children American citizens? Apparently, the answer is no unless they share your DNA. Immigration authorities actually forced a family of two married men and their twin sons to take DNA tests, before determining that one of the twins is not a citizen, because his DNA comes from his Israeli father. (Prior to the obligatory test, the family had deliberately avoided making this revelation.)

    In another case, two women got married and lived in England. While the American, Allison Brixt, had no problem registering her biological son’s citizenship, she was told that her other son was ineligible since his biological mother was Italian. Given the option of “sponsoring” her son as a “stepmother,” Blixt refused. “The principle of that is just a bit too hard to swallow,” she said. “I’m not his stepmother. I’m his mother.”

    Now, Brixt and her wife have sued the federal government, as have Andrew and Elad Dvash-Banks. Both families seek to realign immigration law to recognize kids born to binational marriages as American, regardless of the genetic matchup.

    As the law states: “a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years … shall be nationals and citizens of the United States at birth.”

    In other words, “blah blah blah blah gay families should be treated like all other families.”

    You know, I assume snags like this one exist throughout American law and will continue to ensnare gay couples for several years until they get ironed out on a case by case basis. The legal children born into the family of an American man are American, period. Nor should he have to adopt his own kids. Nor should an American mother have to endure a Kafka-esque routine in order for her child to carry an American passport, or in order to be listed on her child’s birth certificate, or in order to be noted on her spouse’s death certification, or in order to get whatever paperwork her heterosexual counterpart receives as a matter of course.

    The Lord Made Me Do It

    Finally, did you read about a charming new group called the “Conscience and Religious Freedom Division” of DHH’s Office for Civil Rights? Yes, that’s correct. The Health and Human Services Department’s civil rights arm has a new little sub-office designed to protect people who violate civil rights. The office comes complete with a clever name that makes it sound like it’s a fine and worthy operation.

    George Orwell has risen from the dead, zombie fashion, a pet cemetery version of Orwell who is putting his once satirical ideas to work for Pence and company down at the animal farm. The office will be tasked with protecting health providers who refuse treatment based on their religious beliefs.

    Look, I’m not sure how this sort of thing is implemented, given that all sorts of laws might be violated if a health professional refused treatment to a transgender man or lesbian woman and let someone die, for example. What if a nurse refused access to the hospital room of a same-sex spouse? What if a clinic refused to notify a gay husband or refused to treat a person with AIDS? Forget religion, ladies and gentlemen. Such rejection is based on prejudice pure and simple—there’s nothing faith-based about it, and I can’t imagine someone can avoid the consequences of their actions by running to a newly invented sham cabinet division.

    arostow@aol.com