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Fortnight in Review

By Ann Rostow

She Went To the Liquor Store!

Is it my imagination, or have the holidays snuck up on us really fast this year? Halloween was just a week or so ago. Thanksgiving came and went in a flash. And now, I seem to have arrived at the edge of Christmas without warning. Usually, I have a month or so to complain about tacky lights and irritating music. Usually, I moan and groan about stores that prematurely deck the halls and malls with fussy kitsch.

But this year, I’ve hardly noticed! The timing seems fine. The lights and decorations are perfectly appropriate with the glaring exception of a neighbor who arranged a garish display of purple and pink centered around a big peace sign. Hey buddy. Ever heard of property values? As for shopping, our efforts at thoughtful personal gifts broke down and we got all the kids bottles of Bollinger for Christmas. Yes, it lacked imagination. But which would you rather have, a book or a bottle of excellent Champagne? So what if they’re underage!

Oh I’m joking. They’re all grown up. One thing that hasn’t dropped off my annual list of holiday peeves is the commercials for jewelry. This year, I am most appalled by the ads for diamonds that are offered in weird colors and look like they came out of a gumball machine. The worst offenders are the “chocolate” diamonds that frankly look like, well, I don’t want to say the word in a family newspaper.

You know, diamonds are judged on purity, on clarity, on the remarkable fractal glint. They are gifts from Earth, from Nature herself, forged over millennia, extracted with great effort and cut, refined and polished by master artisans. So you take this precious gem and deliberately turn it a hideous shade of brown? Sorry. Who thought of that? What’s next? A string of hand-picked pearls dyed hot pink? Blue dye in the Bollinger?

And then there’s the mild, but still annoying, sexism of the whole “he went to Jarrod” theme, as if women are dolls to be adorned with trinkets or little girls to be enchanted by a glittery bauble. A sub-theme here is the notion that the clueless guy has to be educated or else he might buy his wife a chain saw.

Let’s just say that the gender stereotypes abound during the Christmas season. For the record, none of this rant should be interpreted to mean that I personally would reject a gift from Jarrod if Mel is inclined to wander over there. Just don’t get me colored diamonds.

What’s The Matter With India?

I’m sorry to toss bad news into our festive ambiance, but a couple of weird things happened earlier this month. First, the Indian Supreme Court, or whatever the highest court is called, reinstated the nation’s sodomy laws. Yes, you read that right.

Then, after several dozen same-sex couples got married in the Australian capital city of Canberra, the nation’s high court struck the local marriage equality law, declaring that marriage in Australia was a federal institution. Either the whole country legalizes marriage, or no one does. Thus died the Australian Capitol Territory marriage law that went into effect for a few days before the High Court ruled.

I can hear some of you thinking, so what? Who cares what happens in Canberra or Calcutta? There’s a part of me that also ignores news from distant lands, but still. Throughout this extraordinary last few years in the United States, our victories have arrived against a background of global progress. As we’ve celebrated marriage in Maine and Minnesota, we’ve been dimly aware that marriage has also been legalized in Uruguay, or some part of Mexico, or France or the U.K. Gay rights may advance beneath our radar in foreign climes, but it’s still pleasant to sense the growing trend in the right direction.

All the bad things that have happened in the world seem located in Africa, or the Middle East or Russia. Subconsciously, I simply figure that these areas will catch up eventually. But India? Really?

Laws in India against unnatural sex were codified in the mid-1800s by whatever British overseers were assigned to such tasks. Like other sodomy laws, they evolved into a weapon for antigay police or officials, but it seemed they lost their teeth back in 2009, when a lower court ruled that they could not be enforced except in cases of rape or underage sex. That ruling, out of the Delhi Supreme Court, was not appealed by the federal government. But into the breach leapt a group of right wing religious types to send the issue to the nation’s top jurists.

It was universally assumed that the High Court would go along with the lower court, but instead the justices came out with their own version of Bowers v Hardwick, right down to a comment from one justice who said he doesn’t know any gay people. The Court said basically that the law is not a big deal, and that homosexuals don’t really constitute a class deserving of constitutional attention. If the law is that bad, they said, then it should be overturned through the political process.

The good news is that many of India’s parliamentary leaders were also pretty shocked by the decision, and a proposal to repeal the sodomy law will likely be presented for debate before too long. That said, who knows the inner workings of the Indian Parliament? Not me, but my impression is that it’s neither a bastion of liberalism nor a model of comity. Will the sodomy repeal languish as other issues take precedence?

The bottom line is that these two reversals, one after another, remind us that we’re not done. We’re not done in the world, and we’re not done here at home, where a setback could strike just as easily. It’s a warning against complacency.

Guarding Georgia

I always manage to ignore warnings against complacency, don’t you? There’s something so enjoyable and relaxing and pleasant about complacency. And what’s the alternative? Worry, anxiety, Plan B, wariness, pessimism. That’s no fun. And surely not during the holidays!

Here’s some good news. You know those antigay states that were insisting that members of their national guard could not sign up for same-sex marriage benefits unless they traveled to a federal facility? They’ve all dropped their stubborn defiance and agreed to, well, follow the law as articulated by the Supreme Court and the Defense Department.

State national guards are basically branches of the federal government, so it matters little what Georgia or Texas thinks of marriage equality. Nonetheless, these and some other states tried to sidestep recognition of same-sex marriages by refusing to process paperwork for married gay guards, despite stern warnings from Chuck Hagel and company. Bottom line: They’ve all caved. Ha!

And one of those pompous little Christian business owners got shot down by an administrative judge in Colorado, who ordered Masterpiece Cakeshop to suck it up and stop discriminating against gay wedding clientele. The Denver bakers insisted that they would be happy to make a birthday cake for a gay man or woman, but drew the line at weddings or commitment ceremonies because they did not want to violate God’s rules and regulations. (Cue: loud thunderclap)

The judge noted that the bakers operate a public establishment, subject to state antidiscrimination law, and that neither a claim of artistic free speech or religious expression could exempt them from a general, secular statute. The bakers cannot become a law under themselves; they cannot violate the rights of gay customers and parade their prejudice in the trappings of faith.

Good. I really hate this line of “defense” against gay rights laws. And I long to see other mean-spirited entrepreneurs get their comeuppance at the hands of thoughtful judges.

Big Deal Over Big Love

So, I have to take issue with the headline writers who have recently proclaimed that a federal judge in Utah “struck down polygamy laws.” I mean, come on! Indeed the judge ruled against a bizarre statute that banned “religious cohabitation.” As far as I understand it, you could live with six or seven roommates in Utah, but not if you considered yourselves a polygamous household. At the same time, the judge also made clear that you could only have one legal marriage. By rights, the headlines should have read: “Judge Legalizes Large Households.”

In other words, polygamy laws are alive and well in Utah, but you wouldn’t know it from the reaction by our friends on the Other Side. “We told you so! First same-sex marriage, and now…polygamy! Everyone scoffed at the idea of a slippery slope. And here we go, sliding off the cliff!” I don’t know if conservatives just haven’t bothered to look at the details of the case, or whether they’ve cynically turned it into a deceptive talking point, but it’s bothersome.

Speaking of polygamy, I read another dark warning from the Family Research Council about the threat of same-sex couples getting married twice, once to a same-sex spouse, and subsequently to an opposite-sex spouse. It seems that this might be possible under the laws of states that do not recognize gay couples and, in fact, the Attorney General of North Dakota recently wrote that a married gay spouse would have the right to enter a straight marriage in his state without getting a divorce. Since he or she would not be considered married to begin with, it would be perfectly legal to apply for a straight license and check off the box marked “single.”

I’m not sure what the writer was worried about. Did she want North Dakota to recognize the gay marriage and preclude the straight one? Is she worried that the straight couple might have problems down the road if they move to a state that recognizes the first marriage? Here again, the headline on this story read: “Legal Opinion: Same Sex Marriage Could Lead to Polygamy,” although it’s not clear how this horrific descent might be navigated.

Let’s be clear. The patchwork of marriage policies across the country will create numerous complications. At the same time, I don’t think we have to devote much attention to the many gay couples that break up and run off to the Red States with their straight paramours.

The Unbearable
Lightness of Baker

What else. I have some news about Methodists. Spike that. And a Pennsylvania official has asked the Third Circuit to rule on whether the 1972 same-sex marriage case of Baker v Nelson is a legitimate Supreme Court precedent. Hmmm. Now that’s an interesting subject.

Oh stop. It really is. Our foes in the legal fight for marriage cling to this forty-year-old one-liner from the High Court as if to a branch that is saving them from falling into a canyon. Yes, back in the day the Supremes dismissed a marriage case from the Minnesota Supreme Court “for want of a federal issue.” In other words, the Court refused to review state marriage laws based on the idea that marriage was a state issue. The justices heard no arguments and read no briefs. The Minnesota court had of course refused to allow a same-sex marriage so, to evoke Stein, there was no there there.

Our opponents would have you believe that this means the Supreme Court has already ruled on the issue of same-sex marriage in a binding precedent that should stand for all time. Never mind that the idea of same-sex marriage was nothing short of ludicrous back in 1972, a time when homosexuality was a psychiatric disorder and sodomy laws ruled the land. Never mind that the nation has since been transformed, that real binding gay rights precedents have since been articulated, that marriage is now legal in over a dozen states, and that there is no question that the rights of marriage are a legitimate focus for scrutiny under the federal Constitution.

Indeed, the very dispute over whether or not Baker v Nelson has judicial stature should be moot. But still, the citation pops to the surface of every antigay brief. In this case, a federal judge in one of the Pennsylvania marriage cases (there’s also a state case) ruled that the subject matter was properly in federal court, notwithstanding Baker. The state now wants to put the merits of the marriage suit on hold while it scurries up to the Third Circuit to resolve this faux question of law. Personally, I’d like to see Baker properly trashed by a federal appellate court. But it’s still absurd.

Merry Christmas!

arostow@aol.com