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    Ann Rostow: Real News

    By Ann Rostow–

    Real News–

    I like to think that I’m not one of those people who surrounds themselves with just the news they want to hear, and only those opinions with which they agree. Hey! I actually enjoy reading articles from The Other Side. Because I’m emotionally confident. Right, Ann? (Raises Champagne glass to toast image in mirror.) Cheers!

    Or maybe not. I’m starting to suspect that I am indeed trapped in an echo chamber with all of the other myopic consumers of partisan information that I hear about. For example, I just scanned the legal blog “How Appealing,” and found myself incapable of clicking on the link: “How Donald Trump is remaking the law in his own image,” a piece by CNN’s Joan Biskupic. 

    I wanted to read it. I thought it was an important subject; the underreported news of Trump’s horrendous judicial nominations. But I could not bear to start my day with such a depressing punch in the gut. I wanted to digest it on your behalf and issue another Trump warning. But I could not do it. 

    Let’s just acknowledge what we already know, that our ludicrous President has appointed over a dozen judges to lifetime spots on the federal appellate courts; all far right, all relatively young. It’s a cold shower, folks. We don’t want to stand there and be hammered by its painful icy blows if we don’t have to. We’d much rather relax into the warm bubble bath that surrounds our discussion of …

    Dead Sky Diver Wins Major Gay Rights Case

    … the Title VII ruling in our favor from the full bench of the U.S. Court of Appeals for the Second Circuit! Trump hasn’t infiltrated the New York-area appellate court to detrimental effect quite yet. 

    Don’t roll your eyes, dear readers. It’s important. A decision from a full appellate court, not a mere three-judge panel, is one rung down from the U.S. Supreme Court. Such a ruling becomes binding law throughout a multi-state jurisdiction and serves as an inspiration to likeminded judges in other realms. 

    As you know, Title VII of the Civil Rights Act of 1964 is the law that protects citizens from discrimination in the workplace on the basis of sex, race, national origin and religion. The ban on sex discrimination, in turn, has been interpreted by the High Court to outlaw sex stereotyping. In other words, it’s illegal to badger employees for violating gender norms. It sounds as if that means it’s illegal to discriminate against GLBT staff, don’t you think? 

    As if that weren’t fairly definitive, it has also been established that racial bias, for example, exists when a white employee is punished for associating with a minority. This logic could also support the claim that a harassed lesbian employee is being punished because of the sex of her partner. Likewise, there’s the argument that gay bias is sex bias simply because the victim would not be targeted if he were a she or if she were a he.

    Should Title VII be interpreted to cover GLBT workers? It’s pretty clear that, as the Second Circuit says, the answer is yes. Indeed, the only argument on the other side is that lawmakers in 1964 did not intend to include the GLBT community in the bill’s coverage. Well, of course they didn’t. At that time, “homosexuals” comprised a despised minority seen as sexual perverts and pedophiles. They sound horrible!

    The men of the 1964 Congress also likely didn’t intend to protect women from predatory male coworkers either. Nor did they intend to prohibit companies from enforcing archaic standards of femininity as the price of advancement. Lawmakers legislate, and over time, courts interpret, expand and contract the law in line with the evolution of society. The law is alive. It breathes. It doesn’t sit there, forever enmeshed in the disturbing world of 1964.

    The Second Circuit’s 10–3 ruling came in the case of Donald Zarda, a plaintiff notable for the fact that he died BASE jumping, and that his surname makes him sound like a comic book character. Every time I think of this case I imagine “The Great Zarda” hurling himself off a cliff, Icarus-style, in a wing suit. But that’s neither here nor there now, is it? The decision generated something like eight opinions, including a five-member main opinion, several others agreeing with the outcome, but with other rationales, and a trio of dissents. One of the concurring opinions included a one-line footnote, written in Greek, implying that the other opinion was long-winded. (!)

    Last year, the full Seventh Circuit also ruled that Title VII covers GLBT employees, while the Eleventh Circuit declined to review a three-judge ruling to the contrary. That case was petitioned to the High Court, but the justices also declined to take the Eleventh Circuit review, leaving the status of the law somewhat in disarray. I had assumed someone on the losing side would appeal the Zarda case, giving the Justices another opportunity to resolve this critical anomaly in American civil rights law, but apparently the matter will go no further. Much as the losers at the Seventh Circuit declined to petition the High Court, Mr. Zarda’s former sky diving employers will apparently settle with his estate.

    Something’s Rotten in Bermuda

    I’m not exactly sure what’s happening in Bermuda. I think someone has filed another marriage equality lawsuit aimed at the antigay domestic partner law that was recently enacted by the island powers that be. This domestic partner law effectively nullified a previous court ruling that had briefly allowed marriage between same-sex couples. It seems as if that bad law is somehow on hold, but you know what? I don’t care! The damage is done. Bermuda made its bed, and I’d like to see tourism come to a halt and deep regret envelop the bigoted politicians who thought no one would notice if Bermuda became the only territory other than California to revoke gay marriage rights. 

    We noticed.

    And while I’m off in a potpourri of random thoughts, will someone explain what’s wrong with a trade deficit? It means we are consuming more of country X’s stuff than they are of ours, which makes sense as long as we are bigger and growing faster than other countries. What’s wrong with that?

    I’m serious, because I don’t know much about the dynamics of trade. Here’s what I do know, unlike Mr. Trump. I know that I don’t know much (in a Rumsfeldian way). And I know that a trade “deficit” is not inherently “bad” like a budget deficit. Oh, I also know that trading partnerships and alliances are not zero-sum “deals.” And I know that we live and operate in a complicated 21st century global marketplace. So, I know enough to wonder what the hell is going on.

    Speaking of complexity, amidst all the craziness and the insane pace of news, we all skipped over some truly frightening and bizarre comments that Trump recently made in Florida: “I think that computers have complicated lives very greatly,” he mused. “The whole age of computer has made it where nobody knows exactly what’s going on.”

    He said that. This is a man who does not use email, except for when he writes something down in capitals with a giant black marker and has an aide Xerox it and turn it into a pdf file that can be attached to an email and sent to someone. He’s also the guy who bragged during the campaign that 10-year-old Barron was an incredible genius and could do all sorts of things on the computer. No offense to Barron, who I’m sure is adept, but your average first grader can run rings around Trump in the tech department. The man is a dinosaur, and this scary detail is eclipsed by the even more frightening facets of his Presidency. Oh, and no, Twitter does not count as mastering technology.

    Bitter Melissa Plows On

    While we wait for the Supremes to release their Masterpiece Cakeshop opinion, you should know that Melissa Klein of “Sweet Cakes by Melissa” has appealed her most recent legal defeat to the Oregon Supreme Court. I remember this insufferable woman from years gone by and I must confess I haven’t followed her recent litigation very closely. I thought she had given up her business or turned it into a home-based hobby. And I saw her on a panel at one of those right-wing conferences a couple years ago, when she was almost in tears describing the emotional investment she sinks into every wedding cake. Gag me with a spoon, as the Gen X kids used to say. 

    It turns out that the Kleins were recently assessed $135,000 in damages for the pain and suffering that they caused the two lesbians who were denied service. Not only did they refuse to do business with the gal pals, but when the women complained, the Kleins published their names and address and they got death threats. At any rate, the Oregon state appellate court upheld the award, and the Kleins are now asking the top court to overturn the ruling. Lest you feel too sorry for the Kleins, note that they cashed in at least $100,000 from a Go Fund Me page until Go Fund Me shut down the appeal for violating its terms of service. 

    There was another one of these small business bias cases in Hawaii, where the antigay owner of a bed and breakfast tried to argue that her constitutional rights to privacy and/or freedom of intimate association should allow her to reject lesbian customers in violation of state law. In another long-running case (the original incident happened in 2007), the state appellate court upheld a 2013 ruling in favor of the two women, noting—and I paraphrase— that if you elect to turn your house into a bed and breakfast, you automatically give up a degree of privacy. Nor can you invoke a need for privacy that applies only to categories of customers you dislike. 

    Lions and Tiger and Wolves, Oh My!

    Our thanks to The Washington Blade for a report on antigay Kentucky County Clerk Kim Davis’s new book, Under God’s Authority: The Kim Davis Story. According to the promotional staff at the Liberty Counsel, the book’s distributor: “Kim chronicles her dramatic encounters with furious, fist-pounding, homosexual men and the hate mail that flooded her office … [and] takes you behind-the-scenes of the unlikely saga that took America by storm in 2015. 

    But that’s not all!

    “She tells how God transformed her life in 2011, why she almost retired in 2014, and how she knew—six months before the U.S. Supreme Court’s disastrous 2015 same-sex ‘marriage’ opinion—she was headed for jail.”

    Oddly, the Blade reports that Liberty Counsel has since removed the phrase “fist-pounding, homosexual men.” Hmmm. Was it the double entendre? The intervention of a fact checker? Did Jesus take the editor’s desk? 

    This November, Davis will be running for reelection against David Ermold, one of the fist-pounding homosexual men she refused to serve after the High Court authorized same-sex marriages in 2015. Now that would be satisfying, don’t you think?

    Pride Goeth Before a Lawsuit

    And finally, attorney Roberta Kaplan (she of Edie Windsor fame) is suing the city of Starkville, Mississippi, after they refused to authorize a Pride Parade. Representing Starkville Pride, Kaplan argues that the city singled out the Pride group for prejudicial treatment in violation of their First and Fourteenth Amendment rights. We’ll see if the council sticks to their guns in denying a permit for the parade. If so, keep in mind that the gay parade is the only one the city has declined to authorize. Viewpoint discrimination, anyone? 

    I can’t celebrate the end of my column because Mel and I are on a sugar “detox” thing, which is just another “don’t eat or drink anything interesting” type diet. Can you imagine how much I hate this, dear readers? Mel just offered me a taste of some vegetable relish of some sort, which was fine as these things go. (And I’m sure she worked hard at it!) But listen. You can keep your sugar and your salsa. Just bring me a slab of decent cheese, a hunk of baguette and half a bottle of cold Krug. I think Omar Khayyam wrote something along those lines once.

    arostow@aol.com