Fortnight in Review

By Ann Rostow

Corporations…Corporations Who Love Corporations

Hello dear readers. The holiday GLBT news lull continues on its meandering drift towards Twelfth Night, and yet we are not completely becalmed. Indeed, the High Court has just accepted a couple of cases that may not directly involve gay rights, but will certainly have a major impact on our community’s legal position in the future. So much so, in fact, that I would have expected every GLBT newspaper, blog and website to cover this story with a rainbow blanket.

And yet? The blockbuster is ignored! But fear not. The San Francisco Bay Times will never shirk its duty to keep you up to date on any and all gay-significant nuances in constitutional jurisprudence, and this time, there’s more than a nuance at stake.

Last week, the Supreme Court agreed to decide whether or not a for-profit corporation has the same right to religious expression as a person under the First Amendment. The issue at hand is the obligation to provide insurance for the full range of contraception under Obamacare, but it could just as easily involve the duty to welcome gay customers under a state antidiscrimination law.

The legal underpinnings are basically identical. Under a fairly recent law (passed in the early 1990s), the state may not infringe upon our religious comings and goings without a compelling interest, and even then, the trespass must be narrowly targeted towards that interest. Think drug laws that prevent you from your favorite peyote ritual. Or maybe our recent example of laws against handling venomous snakes in church— a policy now under court challenge in Tennessee.

Certainly, no state authority could force you to take contraceptives, particularly those that might prevent an egg from implanting in the uterus after fertilization. But can the state force a company to offer health insurance that includes this option? What if the company’s officers think it’s wrong? What if the company’s objections are founded on religious beliefs? If the answer is no, then surely a company also has the right to ignore gay rights laws for faith-based reasons.

Maybe “surely” is too strong, because there’s also a case to be made that gay bias is not a valid “religious belief,” any more than racial prejudice can be justified by scripture. But let’s just say that a Supreme Court ruling that recognizes corporate personhood for the purposes of religious expression is not an opinion any of us would welcome.

Many commentators have scoffed at the notion that a corporation is a person, but corporations certainly have constitutional rights, and commercial speech has always been given First Amendment protection. That said, it’s always been far less expansive than the protection accorded to an individual speaker. That limitation appeared to be, shall we say, “relaxed” under Citizens United, the ruling that allowed corporations to pour zillions of dollars into the political coffers under the guise of Free Speech.

Given the precedent of Citizens United, some fear the Roberts Court will be only too happy to bend the rules for conservative companies like Hobby Lobby and their likeminded buddies at some Mennonite furniture company who are also suing for religious exemption to the Affordable Care Act. At the appellate level, Hobby Lobby won their case at the Tenth Circuit, while the Mennonites lost at the Third Circuit. Or maybe the reverse. Let’s just say there was a split between the two appellate courts, which probably inspired the justices to accept review.

The core problem with laws that purport to lift religious expression high and above the secular rules and regulations that serve society as a whole is this: Who decides what specific form of religious expression deserves a transcendent status? As I implied before, the notion that “gays are evil,” is not a tenet of any religion. It’s a
traditional attitude that is linked to, but not intrinsic to, various conservative faiths.

Likewise, when is a feature of religious expression a deal breaker, like eating kosher meals, and when is it a superficial gimmick, like wanting to wear a kitchen strainer on your head for your driver’s license because you’re a Pastafarian? Don’t get me wrong. I love the Pastafarians, who worship the Spaghetti Monster and drink beer every Friday, but can they claim First Amendment protection? Indeed, they were created to test exactly this kind of conundrum, and in at least one case they have won the right to wear strainers for their license photos. That may have been in Europe, but the question remains. Who decides these things? Who picks and chooses between the Wiccans and the peyote guys, and the Christians and the Muslims, and all the people who might define their own personal religious mandates?

The dilemma is tough enough when individuals are involved, but throw in corporations and we’ll have a real nightmare. Meanwhile, I should mention that Britain’s highest court has just ruled against an innkeeper who wanted to ban gay couples from sharing a room. And I know you remember the case of the photographer in New Mexico who wanted to ignore state antidiscrimination laws and refuse service for a gay commitment ceremony. That case is on appeal to the Supreme Court, but the justices have yet to decide whether to take review. Two other cases are in various stages of litigation: a baker in Colorado and a florist in Washington. And I have no doubt that there are others on the list.

All Aboard!

Speaking of the High Court, I read somewhere that they have accepted even fewer cases than usual for this winter, a decline that follows a trend of accepting fewer and fewer petitions in general. I’m sure they have their reasons, but then I wonder when I learn that they have just heard oral arguments on the trenchant question of whether or not an airline can dump a “platinum” VIP club member simply because he complains incessantly about every little thing.

The answer may be yes. Apparently airlines have a lot of control over their customer dealings. Frankly I don’t care whether the answer is yes or no. I only care whether or not they’re making the best use of their valuable time.

Actually, I do care. I sort of hope the whiner gets dumped. Apparently, he’s lodged 24 official complaints against Northwest Airlines over the past eight months, and tried to demand undeserved discounts and other perks that go well beyond his platinum status. I hate people like this. Litigious, arrogant, and obsessed with petty accoutrements of success. Plus, he’s a rabbi! Isn’t there something in the Torah about this kind of frivolous nitpicking?

And what is it with these airline categories? Have you flown recently? Have you noticed that there’s a lengthening list of people who can board first? I think the kids still go first, or maybe the First Class passengers. But then come the platinum people, followed by the gold people, followed by the priority-boarding people, followed by the special club people. Now, they’ve stuck active military people into the mix at some point, as well as people without carry-on luggage.

Yet everyone still hangs around in a big anxious crowd, waiting for their designation to be called so they can rush into the packed jet the very first chance they get. Why not sit back and wait until most people are gone
and then board? Are people afraid someone will take their seat? The
specific numbered seat that is already assigned and printed on their boarding pass?

I may have previously mentioned the height of boarding mania. And that is the phenomenon of Southwest passengers who obtain an “A” pass and proceed to stand in the “A” line, up to an hour before the plane is scheduled. Presumably they went to great lengths to get the early seating in order to make their trip a little bit nicer. But instead of taking advantage of a guaranteed position, they impose an added and unnecessary hardship on themselves, for what reason? In order to be three rows closer to the front? Is that worth an hour on their feet?

Would you give up a perfectly good Bloody Mary for that? I wouldn’t. Let alone the two or three that I could down if given sixty minutes in an airport bar. (There’s something about airports that nullifies all the rules on drinking.)

Divorce, Gay Style

Moving right along, I see that a state court judge in Mississippi has denied a divorce to two lesbians who married in California in 2008. According to press reports, the judge seemed sympathetic to the women’s plight, but was hamstrung by the state’s antigay amendment that considers same-sex marriages void.

We have the same problem in Texas, where the state supreme court has recently heard arguments on two gay divorce cases, but where antigay blowhards, um, lawyers from the Attorney General’s office, insist our marriages are also void from the start. There’s another divorce case pending in Kentucky, and you may recall that Wyoming surprised everyone a couple of years ago by actually allowing a gay divorce to proceed. That said, unlike Mississippi, Texas and Kentucky, the Brokeback State has no amendment defining marriage and no statute that specifically bars recognition of same-sex marriage.

There are a number of legal side streets in the fight for marriage equality that can theoretically lead us to victory, and divorce is one of them. Our main routes, of course, are to argue our constitutional rights, either to marriage under the Due Process Clause, or to equal treatment under the Equal Protection Clause. But we now have dozens of active cases around the country, and several of them target tangential issues.

Can we divorce? Can we sue for loss of consortium if our civil union partner died from malpractice before we had the right to marry? Even if we can’t marry in our state, can our out of state marriage be recognized? Can it be recognized for the purposes of a death certificate? How about for a death benefit from a private employer?

Some of these indirect suits may turn out to be detours towards equality. But others may be shortcuts, and still others may serve to weaken marriage discrimination, even if they don’t defeat it completely. I thought it significant that long before we triumphed over Section 3 of the Defense of Marriage Act, federal bankruptcy laws were effectively allowed to recognize same-sex couples. Why? Because the process of disentangling joint estates was simply too cumbersome for bankruptcy court and not fair to the creditors either.

That change flew under the radar and it’s possible that many instances of marriage recognition will fly under the radar as well. A divorce in Wyoming. A death certificate in Ohio. A death payment in Pennsylvania. A state tax form in Missouri. These things add up.

Can You Berra Nother Marriage Item?

Here’s a confusing situation Down Under. The Australian Capital Territory, a jurisdiction that includes the Australian capital of Canberra, approved a same-sex marriage law a couple of months ago, a law that was promptly contested by the federal government in a challenge to the highest court.

The six justices heard the case December 3, but the government did not request an injunction against the weddings, and none was ordered. As such, weddings are scheduled to begin December 8 under terms of the new law. Since the justices will not rule on the underlying question of marriage equality until December 12, it sounds as if gay couples in the capital will be able to get married for at least four days. There are something like 377,000 people living in the Territory, so I’d guess there could be several thousand gay couples.

And what will happen if the Court re-bans marriage? It’s not clear to me, ergo the use of the adjective “confusing” in the lead sentence.

Finally, I didn’t tell you about Croatia’s new anti-marriage law. Nor did I mention oral arguments on marriage in federal court in Utah, or a federal marriage case dismissed in Louisiana. And since my time is up, I will leave you with those intriguing bits of information. Croatia is particularly tantalizing, n’est-ce pas?

arostow@aol.com