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    Ann Rostow: Slouching Towards SCOTUS

    By Ann Rostow–

    Slouching Towards SCOTUS

    Before we start, may I apologize for once writing that Brett Kavanaugh was likely a better High Court nominee than the others on Trump’s short list? This complacent calculus was based on the assumption that Kavanaugh was your run-of-the-mill fifty-something preppy ivy league white guy, with a loyal wife, cute kids and a résumé to beat the band. Same old, same old. Conservative, of course, yet maybe not as ideologically compromised as some of the others.

    But a belligerent psycho misogynist? Who knew!

    This lunatic shouldn’t come within spitting distance of the High Court. And what has happened to Lindsay Graham in the last year? Once a hawkish conservative with some bipartisan instincts, he has morphed into a grotesque Trump sycophant and the personification of meanness. I hate him.

    Meanwhile, the 2018/2019 Supreme Court session is officially underway, and several gay cases are simmering on the middle burner, not on the calendar, but soon to be under consideration. For example, we have three petitions presenting the question of whether gay and/or trans bias is inherently illegal under federal laws that ban discrimination “because of sex.”

    To sidetrack, did you realize that sexual harassment on the job was never outlawed by Congress or anyone else? Instead, the law against workplace discrimination because of sex (Title VII of the Civil Rights Act of 1964) was eventually interpreted to encompass sexual harassment. This wasn’t obvious. For a long time, male judges insisted that sex discrimination meant, let’s say, not hiring women, or firing someone because of her sex. But as for the boss chasing his secretary around the desk? That was just the birds and the bees. Nothing that the law could touch!

    Eventually, courts thought harder and recognized that demands for sex were a form of discrimination, and further, that a hostile environment based on harassment was another form of discrimination. Courts have also determined that forcing men and women to behave a certain way on the job can constitute gender stereotyping and is yet another type of sex discrimination. Under this theory, many courts have ruled in favor of transgender workplace plaintiffs, or effeminate men, or masculine women, or anyone who is hounded out of a job for not meeting gender expectations.

    It is time, our lawyers argue, that Title VII, and other federal laws that cover sex discrimination, reflect the fact that a bias claim leveled by a gay man or woman (regardless of their gender presentation) is just as much a case of sex discrimination as any of the other definitions that the courts have thoughtfully embraced over the years.

    We have been making terrific progress towards winning acceptance in the courts, where we have the hard job of reversing antigay 20th century precedents in the appellate courts. Already, the U.S. Court of Appeal for the Seventh Circuit met en banc (as a full court) to reverse its old antigay case law, as did the Second Circuit. The seventh circuit case has settled, but the second circuit case has been appealed to the Supremes by the employers of a dead gay skydiving instructor (Zarda!).

    We also have a three-judge loss at the Eleventh Circuit, where the judges declined to hear our appeal en banc, and where we appealed to the High Court. Finally, we have a transgender Title VII victory from the U.S. Court of Appeals for the Sixth Circuit that has been appealed by the peanut brittles at the Alliance Defending Freedom.

    In addition to these three Title VII petitions, we’ve got lower court cases on the transgender military ban, the nay-gay-saying florist from Washington, and let’s assume a few more martyrs to religious freedom waiting in the wings.

    Our only hopes for a positive outcome? Maybe Kavanaugh is defeated and his replacement is secretly pro-gay. Maybe John Roberts will have a change of heart on gay issues. Maybe one of our adversaries on the Court will retire at the end of 2020, and none of these cases will reach the High Court docket until a Democratic administration in 2021. Maybe the Democrats win the Senate and keep the seat open for the next two years. Maybe a unicorn will fly to the moon.


    I know I must be missing something, but I can’t quite grasp the GLBT community furor over a recent decision to stop issuing G-4 diplomatic visas to the domestic partners of gay officials. The Trump administration just announced that gay foreigners living here under these visas will have to marry their partners in order to remain in the U.S. as a couple. Keep in mind that heterosexual diplomats and UN workers must also be married in order to get a G-4 visa, and they are also not allowed to bring domestic partners into the country.

    At first, I thought that there should be some kind of exception for people who cannot legally marry in their home countries. However, the U.S. says that an American marriage will suffice, as will a marriage from any other country, one assumes. In other words, you don’t have to be recognized as married in your home town.

    I then read complaints from our side that some people cannot marry because being gay is a crime in their home country. But surely a domestic partnership would then be a crime as well, and acquiring a G-4 visa on your partner’s behalf would herald your sexual orientation to the authorities just as loudly as a marriage license.

    If you’re out enough to get a G-4 visa for your partner, you’re out enough to get married somewhere. If you don’t want to get married, that’s a different issue, but it’s one that applies equally to gay and straight personnel.

    All that being said, I don’t like the change. We are constantly hit with antigay policies from this administration that fall out of the sky in different sizes—a baseball here, a marble there, a piece of foam drifting to the ground, a refrigerator-sized chunk of steel smashing to Earth. They are all insidious. Here, for the record, is the reaction of the DNC’s LGBTQ Media Director, Lucas Acosta:

    “The policy of granting visas to the same-sex domestic partners of foreign diplomats helped make the U.S. a leader for LGBTQ rights and freedoms. Now the Trump administration is doing everything in its power to roll back progress and make it harder for LGBTQ people to serve their countries. With same-sex marriage legal in only about 10 percent of UN member countries, LGBTQ diplomats could be forced to leave their posts or their partners. Instead of providing moral leadership on LGBTQ rights and freedoms, the Trump administration is essentially subjecting diplomats to the same discriminatory, anti-LGBTQ policies that they face in their own countries. The Trump administration must reverse this discriminatory action.”

    That visa policy, by the way, began under Hillary Clinton in 2009, at a time when same-sex marriage was illegal in most places and domestic partnerships were basically all we had. That’s no longer the case. Get married. By the way, I am assuming that there are no exceptions for heterosexual diplomats with “life partners” or “longtime companions” or what have you. And I am also assuming that there are no barriers to bringing your partner to the United States, getting married and then obtaining the visa.

    Show Us the Money

    Returning to the Supreme Court for just a minute, I read that the justices declined to hear the appeal of a decision by the Arkansas Supreme Court to deny lawyers’ fees to civil libertarians who successfully argued a gay marriage claim last year. To put it another way, the Arkansas Supreme Court has basically stolen $220,000 out of the bank account of the National Center for Lesbian Rights. It’s outrageous!

    Lawyers get paid by the loser when they win civil rights cases, where plaintiffs are often those with few resources and defendants are often rich bureaucracies of one sort or another. Here, the lawyers sued the state of Arkansas after Hog State authorities refused to recognize a legal spouse/parent on a birth certificate. Arkansas lost. Arkansas appealed to the Supreme Court, which issued an immediate decision upholding the marriage rights of the two women in question. Arkansas then refused to pay the women’s legal bills. Finally, the state supreme court backed the state government’s miserly stance without explanation. Now the High Court airily waves its hand in dismissal and can’t be bothered to look into it. Maybe I’m missing something again, but this annoys me far more than the G-4 visa story.

    Pingu Has Two Daddies

    Here’s some news we can use. In Denmark, two gay penguins at the Odense Zoo took advantage of parental inattention and stole a baby penguin when it was unattended for a brief period of time. According to press reports, the mother went for a bath, and the father got tired of watching the little one and went off on his own to swim. Wasting no time, the chick-nappers made their move, one of them maneuvering the baby between his flippers and shuffling away while the other shuffled closely in the rear. (There’s a video of the whole thing.)

    The parents spent a day without their offspring, with the mother looking around sadly and the father seemingly indifferent to the loss. Eventually, the parents found the baby and got it back after a scuffle, but zookeepers said they would have let the two males keep the chick if the original parents had not claimed it themselves. The keepers also decided to give the males an egg of their own from a new mother who was not able to care for it.

    Bonus to any readers who are familiar with Pingu.

    Yes, Elephants

    Am I the last person to hear about Drag Queen Story Hour, the brainchild of San Francisco’s own Michelle Tea, which has now spread across the country? The program brings drag queen narrators to local libraries to read to kids. Apparently, the interest in the October 6 event in Lafayette, Louisiana, is so high that story hour had to be moved from the library to the local community college auditorium.

    The Louisiana performance will feature Strictly No Elephants, the tale of a boy who is not allowed to bring his tiny elephant to the club and who hooks up with a girl and her skunk. Then we have The Rainbow Fish, a fish who is shunned because he won’t part with his colorful scales, but then gives them away. And this will be followed by some other heartwarming tales of tolerance and outsiders. I think it’s all lovely, but my eye was caught by the dateline. Lafayette, Louisiana. Where had I just read about that town?

    Oh my God! A quick search reveals that a gadfly lawyer with questionable credentials had filed a lawsuit to prevent Drag Queen Story Hour from coming to town. According to the lengthy complaint, the program consists of “self-identified transgenders exploiting the state’s endorsement of their religious ideology in a government endorsed effort to brainwash and indoctrinate minors to religious worldviews on sex, faith, truth, gender, morality and marriage in a manner that excessively entangles the government with the religion of postmodern-western-individualistic-moral relativism.”

    Woah, Nelly!

    From what I can tell, the complaint didn’t get any traction, and the prospect of Story Hour also survived “a tense debate at the library board.” And obviously, as reported to begin with, the event is headed for the big stage later this week. Indeed, Drag Queen Story Hour has been stirring people up across the south in a good way, because what could be more adorable than drag queens asking a bunch of three-year-olds to scream out their favorite ice cream flavor? As one tot told The New York Times back in 2017, “Drag queens make story time funner.”