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    Anne Rostow: Wishing and Hoping

    By Ann Rostow

    Wishing and Hoping

    Before I start, do you think it’s unpatriotic of me to wish that Trump remains in office? I also wish that he continues to stumble and bumble, but that he avoids starting a war or passing any legislation. Then, I want a Democratic wave in 2018, followed by a prolonged stalemate and a chaotic presidential campaign featuring a GOP primary challenger for Trump. After that, I want the Democrat to trounce the Republican in an historic electoral college wipeout. Along the way, I’d like to win back a bunch of state legislatures and state houses. I don’t think this is too much to ask.

    By the way, in the last few days I’ve been glued to the coverage of Trump leaking classified information to the Russians, and I’ve watched a lot of people make the comparison between Clinton’s email “scandal” and Trump’s security lapse. But no one bothers to point out that Clinton had just three emails retroactively marked classified out of 40,000 or so that were checked out by the FBI on her private server. The news anchors just glide over this fact even though it makes the contrast that much more severe. It’s as if the GOP claim that Clinton was regularly using her private server for classified information has just taken root at the expense of the truth—a truth that was publicly confirmed by the FBI after months of investigation! This bothers me.

    What the hell. While I’m at it, I also want Trump to gain about fifty pounds and start to look really puffy and old. I’d like Melania to divorce him, and I’d like someone on the level of Kellyanne Conway to drop out of the power circle and write a tell-all book. I’d also like a reporter from Golf Digest to sneak around behind Trump for eighteen holes and reveal his actual score. Don’t tell me that bozo can break eighty.

    Finally, will someone explain why Jared and Ivanka are never around when bad news breaks out of the oval office? Where are they, and what are they doing?

    My Masterpiece Obsession Continues

    Let’s talk Cakeshop, shall we? Once again, the Supreme Court failed to act on the petition for review of the Masterpiece Cakeshop case, a lawsuit filed by a Denver baker who declined to sell a wedding cake to two gay men. This is the twelfth time the case has been listed for conference and then rescheduled, this time for the next conference on May 18. As far as I can tell, that’s an extraordinary sequence of delays. It sort of looked as if the Court was waiting for Gorsuch to take part in the deliberations, but he’s now had several opportunities to weigh in, and we’re still waiting.

    This time, the antigay legal eagles at Alliance Defending Freedom sent a letter to the justices pointing out a related case from Kentucky, where a state court of appeals just ruled that a t-shirt company had the right to refuse service to a gay pride group, even though a local Lexington ordinance forbade discrimination based on sexual orientation. The 2–1 court said the t-shirt company had a free speech right to refuse to print the shirts, even though the proposed message simply said “Lexington Pride Festival 2012” and included a rainbow.

    Keep in mind that antigay bakers like the one in Denver claim, among other things, that their cakes are artistic creations, which are protected by the First Amendment. I’m sure they would also insist that putting two little men on top of a cake would constitute forced “speech.” In the Denver case, however, the baker refused to sell a wedding cake right off the bat before anyone got around to discussing any specifics.

    This is critical, because obviously, no baker can be forced to make a penis-shaped cake or write some racist slogan in icing. Likewise, the gay group in Kentucky would not be justified in demanding an obscene t-shirt. But where anti-discrimination laws are in effect, it’s illegal to flatly refuse all service, or to claim that an innocuous message like “Lexington Pride 2012” offends religious sensibilities.

    Who’s Your Mama?

    There’s another High Court petition up for discussion on May 18, to wit a case out of Arkansas, where the state supreme court ruled that the same-sex wife of a new mother need not be noted on the child’s birth certificate. A husband, on the other hand, is automatically listed as “father” in the Hog State, even if he’s not the biological dad. Keep an eye out for Pavan v Smith, which feels as if it should be a slam dunk for us. (I’m afraid I’m missing something.)

    The same issue is also up for discussion at oral arguments before the U.S. Court of Appeals for the Seventh Circuit on May 22. That appeal followed a federal court ruling in Indiana in favor of two married women who sued the state after the non-biological mother was told to adopt her child if she wanted to be a parent. We got used to these kinds of inequities back before our unions were legally recognized, but we assumed that the right to marry would include the right to parent the children who are born into our marriages.

    And speaking of marriage equality litigation, do you remember Kim Davis, the grotesque, publicity seeking county clerk from Kentucky who made an obnoxious show of her Christian misgivings by refusing to sign marriage licenses? There were a number of lawsuits filed against her back in the day, but they were deemed moot after Kentucky removed the name of county clerks on its marriage paperwork. Now, however, the U. S. Court of Appeals for the Sixth Circuit has revived one of those lawsuits because it includes a claim for damages. The damage inflicted on David Ermold and David Moore was not resolved by the change in state policy, ruled the court. So, the men can return to court to argue their case. Go get ‘em.

    Texas Hold ‘Em

    There’s an alarmist article in USA Today about all of the antigay proposals floating around the Texas legislature. I’m sure we’re probably high on the list of states with nasty bills on the drawing board (I live in Austin), but I will wait until the mercifully short session comes to an end before drawing conclusions. There’s a lot of sound and fury strutting across the Capitol stage, y’all. I’m not saying it will signify nothing when all is said and done, but it might not be as bad as some say.

    And speaking of not being as bad as some say, there was a rumor floating around a couple of weeks ago about an Executive Order that would roll back President Obama’s gay rights policies and/or carve out an explicit religious right to discriminate against our community. That was the second time such a rumor had reached high on the decibel meter, but like the first time, it turned out not to be true.

    That’s nice, but did you notice that while we were all exhaling, Trump signed an order that attempts to weaken the rules preventing religious non-profits from political activity? The good news is that the order has no concrete impact on churches or tax policy; it’s so vague that the ACLU dropped plans to file suit. The bad news is this represents another suck up to conservative Christians, who are already whittling away at abortion access and who would love nothing more than to create a gay exception to anti-discrimination laws.

    They’ve been kept at bay as far as we’re concerned (reportedly we have Ivanka and Jared to thank for that), but I remain wary. Why, for example, did the Department of Health and Human Services take a question about sexual orientation out of the annual National Survey of Older Americans and delete another sexual orientation box from a survey on Centers for Independent Living? I hate to use the trite term “invisibility,” but it’s important to be measured.

    The Census has never tracked gays and lesbians, so recent reports that the Census had removed us from the 2020 questionnaires were spurious. In fact, the Census only asks a handful of questions, and left room for “unmarried partner” back in 2010. Now, of course, we can respond as wives and husbands, so at least our unions will effectively be counted. Still, how hard would it be to add sexual orientation to some of the Census department’s other major exercises, like the annual American Community Survey?

    The Play’s The Thing

    Hey, did you see that Jim Comey and his wife spent one of their first nights of freedom at the theater, going to see Alison Bechdel’s Fun Home? The musical, based on the graphic novel by the author of Dykes to Watch Out For, is touring at present. The Comeys went backstage after the show, and reportedly, our ex-FBI chief had tears in his eyes.

    What a Shakespearean character he’s turned out to be, n’est-ce pas? I’m not sure I’ll ever forgive his pompous October surprise, but still, the idea that all of us Democrats would cheer his ouster was a bit simplistic. I gather one of the last straws for Trump was Comey’s suggestion that the idea of having an impact on the election made him mildly nauseous.

    Funny, I had a bad reaction to that comment as well. Mildly nauseous? The thing is, I feel as if Comey’s mistake was based on a subconscious arrogance that he mistook for duty. I don’t feel as if his action was partisan—indeed, I suspect he came forward because he assumed Clinton would win and did not want it to appear as if he’d hidden a development in the investigation. So, I might not forgive him, but I don’t hate him, and I certainly didn’t want him to be fired before he had a chance to focus his professional intensity like a laser into the Trump investigation.

    RIP Pando

    Finally, the question of whether sex discrimination inherently includes sexual orientation discrimination continued in an unusual context this month as the West Virginia Supreme Court of Appeals, the state’s top court, ruled 3–2 that no hate crime charges could be advanced against a man who slugged two gay men after he saw them kiss. The Mountaineer hate crime law enhances sentences for crimes based on a range of factors, including sex. But as the slim majority pointed out, the legislature has failed to add “sexual orientation” to the language of the law no less than 26 times.

    For the majority, the matter was simple. Sex means male or female, sexual orientation means gay or straight; one is covered, the other is not. But the dissenting judges replayed the latest civil rights case law in determining that a crime based on a gay act is inseparable from sex and gender expectations. The dissent even relied on our recent victory at the full Seventh Circuit, the Hively opinion, which said a lesbian community college teacher could bring a federal lawsuit under Title VII’s ban on sex discrimination.

    Also, a New York judge this week declined to dismiss a gay case under Title VII, noting that three similar cases have all been appealed to the full appellate court of his jurisdiction, the U.S. Court of Appeals for the Second Circuit. As we’ve mentioned, Title VII of the Civil Rights Act of 1964 has been around for a half century, plenty of time for almost every appellate court to rule at some point that gays aren’t covered by its ban on sex discrimination. (I say “almost” only because I don’t want to check for precedents throughout the federal court system.) This means that, in order to reverse binding antigay precedent, we must bring our cases to the full appellate courts, sitting “en banc” with many judges. Eventually, one of these cases will hit the Supreme Court—probably sooner rather than later.

    Lucky for you I’m at the end of my column, with no more room to discuss why courts are increasingly recognizing that antigay discrimination, or hatred, is inherently a variety of sex discrimination.

    P.S. My pug died.

    arostow@aol.com