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    Ann Rostow: Ridiculous High Court Ruling Signifies Nothing

    By Ann Rostow–

    Ridiculous High Court Ruling Signifies Nothing

    Well, it’s over. Masterpiece Cakeshop v Colorado, the big juicy landmark blockbuster case that was supposed to give gays and lesbians the Supreme Court civil rights imprimatur we’ve long sought but never quite earned, was announced Monday morning. No, we didn’t get a major gay rights ruling. But we also didn’t get a defeat. In their wisdom, the nine justices decided to skip over the thorny First Amendment issues at stake, and to focus instead on what they saw as inappropriate hostility to religion on the part of one or two commissioners on the Colorado Civil Rights Commission. That Commission investigation was one of several stops this case made on the road to the High Court, but apparently was seen as a procedural dead end due to what some legal analysts thought were innocuous comments about the use of religion as an excuse for misdeeds in the past. 

    Lest you roll your eyes at that view, you should know that Justices Ginsburg and Sotomayor agreed. They dissented from the 7–2 majority, which was written by Kennedy. Three other concurring opinions were written by Kagan (who disagreed with one aspect of the majority opinion along with Breyer), another by Thomas, and another by Gorsuch. 

    You should also know that Kennedy’s opinion took some pains to remind everyone that it is indeed impermissible to flout anti-discrimination laws based on religion or your own personal views. (Cue a single firework.)

    “The outcome of cases like this in other circumstances must await further elaboration in the courts,” wrote Kennedy, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” (Emphasis mine.)

    In other words, this particular case had some anomalies, and, in general, you can’t subject us to “indignities” as we carry out our business. The implication is that other bakers and candlestick makers should not assume that they are free to reject gay customers just because Jack Phillips the Denver baker seems to have gotten away with it.

    But this is also what I hate about Justice Kennedy and his gay rights opinions—of which there are now five. I am tired of having to read between the lines of Supreme Court opinions in order to catch a glimpse of equal rights for GLBT Americans. Kennedy seems to be willing to stand up for us when we are lying in the gutter, thrown in jail, deprived of basic rights, or, in this case, subjected to indignities, but not when we’re simply standing up and trying to be equal to our fellow citizens.

    Of course, we don’t want to be subjected to “indignities,” but we don’t want to deal with polite and respectful discrimination either. Why can’t Kennedy ever spell things out? No religion makes it okay to discriminate on the basis sexual orientation; nor does the Constitution protect bigotry under the guise of free speech when a generic state law forbids it.  

    (I was reminded, by none other than handsome GLBT law professor Dale Carpenter, that as much as I am continually annoyed by our half-hearted Justice Kennedy, I would be much more annoyed by his successor were he to retire at the end of this session or the next, as some fear he might.) 

    Generic Comments Deplored for No Reason

    So, you might wonder, what were those horrendous statements at the Commission that undermined Jack Phillips’ right to a fair and respectful hearing? Must have been pretty bad. Bill Maher on steroids. 

    “I would also like to reiterate what we said in the hearing or the last meeting,” said the disrespectful commissioner at one of their several meetings. “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” 

    I don’t know about you, but this sounds sensible to me. The commissioner is not singling out a particular religion, nor is he implying that all religious actors are manipulators in disguise. He is just saying that it happens, and it has happened a lot, and we should be alert to the signs of prejudice disguised as faith.  

    But to Kennedy, the quote betrayed a deep hostility towards Mr. Phillips that seems mystifying to me. “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetoric,” writes Kennedy. What the heck is he talking about? The commissioner said it was despicable to use religion to explain away hate and discrimination. He wasn’t calling Phillips’ religion itself “despicable.” Am I missing something?

    “The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defense of slavery and the Holocaust,” Kennedy continued inanely (the commissioner did no such thing). “This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law.” 

    Oh, spare us. By the way, the phrase “sincerely held religious beliefs” was also bandied about as if there was some sincerity test imposed on First Amendment cases. No, there’s not. And none of us (including Kennedy) have any way of discerning Phillips’ sincerity in the first place. 

    Absurd Comparison Fascinates Conservative Justices

    In the course of the five opinions, much was made of a publicity stuntman who went around trying to convince bakers to produce anti-gay cakes with Bible scripture and two men with a big X over them. The clever prankster then complained to state authorities when various bakers declined to fill his special order. Not surprisingly, the state refused to prosecute the bakers, noting that none of them had discriminated on any basis. They had simply refused to make a nasty and hurtful cake design, something they would refuse to produce under any circumstances, for any customer.

    Jack Phillips, by contrast, declined to do any kind of business with two gay men. Nor had the men requested any special words or symbols; they simply sought a wedding cake—a product that Phillips routinely provided to straight clients. In other words, even though they both involved cakes and gayness, the two cases were not remotely comparable. Tell that to Gorsuch, Alito and Thomas, who observed in the juxtaposition of the two situations a clear manifestation of anti-Christian bias from the Colorado civil rights commissioners. (Kagan thought this was nonsense, which is why she and Breyer wrote a separate statement to that effect.)

    I gather that another gay wedding case is pending before the justices, this one the florist from Washington State, Barronelle Stutzman, who like Jack Phillips declined to provide wedding services to two gay men. A year ago February, the Washington Supreme Court ruled that Stutzman, owner of Arlene’s Flowers, had no excuse for violating the state law that forbids discrimination against gay men and women in public accommodation. Stutzman appealed to the Supreme Court, which has not responded one way or another. Most people assumed that whatever the justices decided in Masterpiece would deal with Arlene’s Flowers at the same time, killing two birds with one stone. Now, however, who knows? 

    By the way, the High Court will also get a petition from the employers of the late Donald Zarda, the sky diving instructor who recently won a major workplace discrimination victory before the full U.S. Court of Appeals for the Second Circuit. Zarda died base jumping during this litigation, but his Title VII lawsuit lives on.

    Finally, it annoys me that all of the headlines read something like “High Court Says Baker Does Not Have to Serve Gays.” Editors and reporters seem to be ignoring the contents of the opinions and just running with a kind of winner take all mentality. Even the articles that explain the splintered Court are followed by comments from people blathering on about serving African Americans who have no idea what they’re talking about. People! Our state and federal civil rights laws are still in operation.

    Better News from Lower Courts

    The U.S. Court of Appeals for the Third Circuit has ruled in favor of a Pennsylvania school district that has been defending its trans-friendly policies against an onslaught from rightwing enemies. In a rare departure from the norm, the three-judge panel handed down a decision about an hour after hearing oral arguments. It’s common for months to go by while the jurists articulate their legal reasoning. In this case, the panel announced the outcome, noting that a written opinion will follow in time.

    Also, in mid-May came news that a federal court has ruled in favor of Gavin Grimm, the erstwhile high school student who is continuing his long-running lawsuit against his Gloucester, Pennsylvania, school district from the perspective of an alumnus. Grimm’s case made history before the Fourth Circuit and was accepted for review by the U.S. Supreme Court, only to be sent back to square one after Trumpists changed government policies. I won’t go into the whole ball of wax at the moment. It’s just nice to see Gavin climbing the judicial ladder once again. Oh, and, of course, his victory was appealed back to the appellate court.

    I should add that Wisconsin transgender boy Ash Whitaker has settled with his school district for something like $800,000. Whitaker won his lawsuit both at the district court level and then before the U.S. Court of Appeals for the Seventh Circuit. His case was also pending before the Supreme Court this session before the settlement put it to bed. 

    Finally, in other news you should know that the gay-bashing Kentucky clerk Kim Davis is out of a job after losing her reelection primary bid the other day. One of the gay guys she refused to marry was in the running to succeed her, but he too lost out to some other person whom I don’t feel like looking up at present. 

    Ding dong.

    To Your Health!

    Speaking of misleading headlines, how about this one from USA Today: “There’s no evidence having sex with robots is healthy, report says.” 

    Why on earth would having sex with robots be healthy or unhealthy in the first place? This is like finding “no evidence that a preference for the color blue is healthy.” But I was drawn to the article because I think I recently read and wrote about male sex dolls, which have turned into a sophisticated product category with dolls selling for thousands of dollars, equipped with extensive wardrobes and other “features.” If that’s true for dolls, what might the sex robots be like? And what about the health benefits, or lack of? And here’s the main answer:

    “In fact, there’s no evidence showing the dolls have any impact on health at all, according to Susan Bewley, an obstetrician at King’s College London and Chantal Cox-George, a doctor at St. George’s University Hospitals, also in the British capital.” 

    The two did some reading, as far as I can make out, found nothing much, and determined that more research was necessary. “Future health studies might include medical observations, case reports, and measurement of visual and neural responses of users, alongside evidence of the impact of robots, and sexbots in particular, in the education, criminal justice and social science sectors.”

    Or not! Do we really have to apply the scientific method to everything under the sun? In case you care, this is a $30 billion industry. And for some reason, this article has left me with an image of Chantal Cox-George, a woman in her mid-thirties dressed in a white coat with her hair in braids pinned to the top of her head.

    “Chantal, darling! Would you be a dear and put Zelda on an overnight charge? Reginald is taking me to the club for cocktails!”

    “Righto, Bewley,” says Chantal, who calls her associate by her last name, prep school style. “Do have fun!”

    After a minute or two, Chantal glances over at a female robot in jeans and a t-shirt, frozen in mid-stride with her arms open. She rises from her desk, picks up the robot and carries her to an outlet with several wires attached to a large battery. 

    “Here you go, old girl,” Chantal says, plugging the robot into the electricity.

    “I love you,” the robot whispers, turning her head to face the scientist. 

    (To be continued after further research.)

    arostow@aol.com