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Ann Rostow: The Litigious Month of April

By Ann Rostow

It’s April, which means that oral arguments on marriage are around the corner at the U.S. Court of Appeals for the Tenth Circuit. It also means that we now know the names of the three judges who will sit on our panel, and there’s reason to be cautiously optimistic, emphasis on cautiously.

First, we’re happy to see Clinton nominee Carlos Lucero on the list, a man who is thought to be on the side of the angels. Judge Lucero’s partners on the case, however, include two GOP appointments; Paul Kelly (Bush One) and Jerome Holmes (Bush Two).

Before you despair, keep in mind that we’ve already chalked up a half dozen or so victories from GOP appointed federal judges. Further, Judge Holmes recently voted not to stay the marriage decision out of Utah, based on the premise that the Mormon State would not suffer undue harm by continuing to marry gay couples while the marriage litigation went up through the courts. So that’s good, right? Judge Kelly, on the other hand, voted in favor of Hobby Lobby in the “religious freedom” case now on appeal at the Supreme Court, not a great sign.

Read the tea leaves as you like. These judges will hear the Utah case on April 10, and they are expected to stay together for arguments in the Oklahoma case on the 17th. Both states, obviously, fall under the jurisdiction of the 10th Circuit.

Meanwhile, one of the two Virginia marriage cases has been suspended pending the outcome of the first case, which is now before the Fourth Circuit. That makes sense, particularly since the attorneys from Lambda and the ACLU have been allowed to intervene and participate in the main lawsuit. Oral arguments before the appellate judges are set for May 13, so the panel will be announced early next month.

Don’t forget we have four more cases now headed to Sixth Circuit, and a case out of Texas en route to the (unfriendly) Fifth. Let’s just say we’re off and running!

Gay Juror Case Still Alive?

Now, here’s a strange and unnerving development over at the Ninth Circuit. Do you remember the groundbreaking, historic, fantastic ruling in the gay juror case two months ago? You know, the ruling that called for sexual orientation bias to be held to a very high legal standard?

The ruling basically ended sexual orientation discrimination throughout the nine Ninth Circuit states (and Guam!), and we were thus delighted when the deadline to appeal the decision expired with no action from Abbott Labs, the losing party.

But wait! Apparently one or more Ninth Circuit judges are now asking the court to consider a full bench review, even though Abbott Labs hasn’t requested one. On March 27, the court asked both parties to present briefs on whether or not a review is warranted. The briefs are due in mid-April.

Clearly, the frustrated judge or judges who revived the issue are not concerned with the dynamics of selecting a jury pool. They are determined to undermine what is perhaps the most significant gay rights victory in American law to date, and I am including all the High Court opinions in that assessment. We can only hope that the full Ninth Circuit decides to leave the opinion alone, and that there’s no weird mechanism to pursue the decision to the nine justices. Keep an eye on this, everyone!

Oh, by the way, I still don’t know why the Ninth Circuit is delaying arguments in the Nevada marriage case, but it reportedly has something to do with a scheduling problem. That said, perhaps they’re waiting to see what happens to the legal standards that will guarantee marriage equality in the Ninth Circuit as long as our gay juror ruling stands.

Here’s a quick refresher for those of you who missed Judge Stephen Reinhardt’s late January opinion. In a case that questioned whether or not a lawyer could dismiss a prospective juror for being gay, Judge Reinhardt ruled that sexual orientation discrimination must be evaluated with heightened scrutiny, meaning that the antigay side must justify the discrimination with an important or compelling interest. The standard is virtually impossible to meet in gay cases, since there’s really no reason to act against our community that doesn’t rest on prejudice.

Every lawsuit we’ve ever filed would be settled in our favor if heightened scrutiny were applied, which is why courts have been reluctant to address the issue of scrutiny to begin with. Even our allies on the bench seem to feel that the gay rights movement should follow the long arc towards freedom rather than the short cut through heightened scrutiny. That’s why Judge Reinhardt’s opinion was breathtaking.

Springing Right Along

I’m sorry to say that we have a lot more actual news to cover, which means that I can’t afford to meander along irrelevant tangents. Like basketball, for example. Sadly, we had to take down our Kansas Jayhawk flag after one weekend of madness. It will now sit in the closet for five long months until Mel will drag it out in a futile effort to rally the Big Twelve bottom-feeding KU football team. Good luck with that, honey!

On the other hand, the end of basketball means the beginning of spring and the return of eighty-degree afternoons in Austin. The trees are already in bloom. The bluebonnets are out. The indoor thermometer is now permanently set to “cold.” We can now tee off at two and play eighteen holes of golf, and the refrigerator is once again stocked with Campari.

I can’t enjoy Campari in cold weather, can you? Last night I made “Jasmines,” which feature squeezed lemon juice, gin, Campari and Paula’s orange. I have a device that makes slow-melting tennis ball-sized ice spheres, so I poured it over those with a slice of orange. Beware of hangovers. These drinks are delicious, but very alcoholic. (3/4 oz., 1 ½ oz., ¼ oz., ¼ oz. respectively, shaken over ice and poured.)

Oh wait. Didn’t I just say that we couldn’t afford to let our minds wander? So sorry. Here’s something for all of us to monitor. The Supreme Court has not yet decided whether or not to review the case out of New Mexico, where the state Supreme Court ruled that a photographer might not refuse to do business with a lesbian couple based on religious objections.

There’s an added twist to this particular variation on what is becoming a familiar theme. The photographer now insists that she also deserves First Amendment protection because taking photographs involves artistic expression. As we’ve noted before, it seems that there’s an artistic element in making a wedding cake or designing invitations or making a flower arrangement. In other words, a lot of businesses could cloak prejudice in the raiment of artistic freedom just as easily, and just as unfairly, as they now disguise bias as religious expression.

The High Court has twice listed the Elane Photography case on its agenda, but so far the justices have yet to decide one way or another. The case is again scheduled for discussion on April 4, with a decision (maybe) to be announced the following Monday.

Keep in mind that the New Mexico case, like the others we’ve seen, involved a violation of state antidiscrimination law. Many states do not protect GLBT clients against mean business owners, who are free to turn up their noses at our custom to their hearts’ content. Of course, they risk negative publicity on Yelp and elsewhere, which might actually be worse than a lawsuit.

By the way, Mississippi has passed a milder version of the antigay religious freedom law that was vetoed in Arizona. Again, since Mississippi has no law against gay bias to begin with, the new law is superfluous, albeit nasty. To be honest, I really don’t care what Mississippi does, because my expectations are quite low to begin with. It’s Mississippi, for God’s sake.

Death Be Proud

Speaking of low expectations, Alabama is another state where I’m not exactly on the lookout for examples of progress in the gay rights movement. Yet here, as in virtually all the U.S. states, we have another federal marriage recognition lawsuit. And this one is a little different. Here, the case involves a married man whose husband was killed in a crash. He is the sole inheritor, but because of Alabama’s refusal to acknowledge his married status, he may not sue for wrongful death.

Into the breach has stepped Pat Fancher, the dead man’s mother, who is trying to collect on the morbid rewards. She has hired the Foundation for Moral Law, and has been given leave to intervene in the suit. Indeed, husband Paul Hard did not object to the mother’s effort to join the litigation, and I can sort of see why.

In her filing, Fancher’s lawyers said she was “deeply disturbed that the death of her son David, whom she loved deeply and with whom she had a good relationship, is being used by Plaintiff Paul Hard to advance the cause of same-sex marriage which she strongly opposes.” Quite frankly, this is just the sort of stone-hearted family member who personifies the naked hostility that the anti-marriage gang so artfully tries to hide. She had a “good relationship” with her son? Really?

Thanks to Fancher’s intervention, we can expect the Alabama case to include the ugliest sorts of legal arguments, compliments of the Foundation for Moral Law. I don’t have high hopes for Alabama in general, but this is a federal case. And we can only benefit from a matchup against extremists.

Fred Phelps, RI?

Speaking of extremists, you all saw that Fred Phelps died a few days after our last column hit the press. Interesting that the man drew a few headlines, and then…nothing. Just what he deserved in my opinion: a quick exit into oblivion.

I hope he’s now clinging to a thin string, dangling over an inferno while all around him gay men and lesbians are drinking Champagne and eating oysters on the half shell at a giant outdoor cafe. I can hear the soft murmur of conversation, the occasional burst of laughter, soft music floating in the air (Edith Piaf? It’s not Paris, but they’re all in France somewhere). Fred is invisible to them, but he can see them and he is now aware of the ruinous flaws in his convictions. Yes, he was insane. But it seems that is no excuse in this new world. He is damned.

“Forgive me!” he cries. The heat rises. He hears no answer, only a drifting chorus. “Quand je me prends dans ses bras….”

Does he fall? Or does he suddenly find himself seated at one of the tables. A beautiful woman pours him a glass (of vintage Krug bien sur) and smiles at him. “We’re all the same here,” she tells him as she opens another oyster. “Saints and sinners.”

The answer depends on your view of the afterlife, of course. I’m putting him at the café, but only after he experiences several hours of pure terror.

No Promo Homo

Only a short space left to cover the dismissal of a gay Boy Scout troop leader (c’mon guys, give it up already for Christ sake) or perhaps the ten-year-old tomboy who was told by her school to act more feminine (say what?).

Instead, let’s consider whether it’s time to officially designate “homosexual” a pejorative term, as suggested recently in the New York Times.

I say that, although there’s still a place for the word alongside “heterosexual” in some contexts, I agree with the Times that the term is negative. Our orientation far transcends sex, and yet our adversaries relentlessly present us as nothing more than sexual malfeasants. And they do it for a reason. We are not gay men and women to them. We are bad actors, perverts with deviant and unnatural sexual habits. Our claims to civil rights are as laughable as the protests of the pedophile or the farmer caught humping a sheep.

“Homosexual” strengthens this association, and it’s no coincidence that the only people who commonly rely on the term are the denizens of Fox News and the religious right. The divide between people who use it and people who don’t is reason enough to consign “homosexual” to the trash heap of linguistic exiles. Be gone with you, “homosexual!”

arostow@aol.com