By Ann Rostow
Back in the day, before beluga caviar soared to a couple hundred dollars an ounce, I used to indulge. My father always bought me caviar for breakfast on my birthday, and I felt it was a worthy tradition. I love the stuff.
Fine golden caviar is beyond my resources at current prices, but I have fond memories of the tiny glass jar, the buttered white toast, diced onions, sometimes a minced egg. I would vary the combinations, some bites with everything, some with just caviar on toast, some big slathered pieces, some soldiers with just a touch. And then finally, I would run the toast around the oily jar, absorbing the last sensations before licking the container clean. I always wanted more.
So, what’s the point? The point is that I feel as if the gods of civil rights law have delivered a salad bowl of the best caviar in the world, and put it down in front of me with a soupspoon. Hell, they’ve tossed in a couple bottles of vintage Krug (maybe 1985) and a Cuban cigar. Lawsuits that used to stop the presses are routine. Opinions out of federal courts that once were unthinkable are dropping into our laps every fortnight. And it now seems clear, less than nine months after the High Court turned its back on the Prop 8 case, that the core issue of marriage rights will return to the justices next term.
Not five years from now. Not three years from now. And probably not two years from now. But likely in the next term with a decision in June 2015.
Since our last communication, dear reader, the state of Indiana has effectively shelved its antigay marriage amendment for the next two years, a deliberate move that, for all practical purposes, will kill the effort.
Since our last column, a federal judge in Kentucky has ordered the Mint Julep State to recognize marriages from elsewhere, and a federal judge in Virginia has struck the antigay marriage amendment in the Lovers State. We have filed a marriage suit in Colorado state court, and two more federal cases in Alabama and Missouri, along with a more expansive case in Kentucky.
The governor and the attorney general of Nevada have stopped defending their marriage ban at the Ninth Circuit, acknowledging that Nevada’s antigay amendment cannot withstand the heightened scrutiny that is now imposed on sexual orientation bias cases throughout the American West. (That new standard was ordered last month in the Ninth Circuit’s gay juror case. I told you all about it at the time, for God’s sake!)
That means that the Ninth Circuit will now put the tedious case against Nevada on a fast track. That lawsuit has been dragged down by procedural delays for well over a year, but now we might see some quick action. And thanks to the aforementioned level of scrutiny, we cannot lose a marriage equality case at the Ninth Circuit. (In fact, we can’t lose any gay bias case in the states that make up the Ninth Circuit’s jurisdiction.)
This is all in the last week or so!
I’ve already mentioned that the Tenth Circuit will speed through the Utah and Oklahoma appeals like lightening. Oral arguments are set for April, so we should have a ruling this summer. I also read that the Fourth Circuit will put the Virginia appeal on a fast track, but this news is so recent that I haven’t pinned down exactly what that means.
Advocates have also asked the Sixth Circuit to hurry the appeal of the Ohio case, where a federal judge ordered the Buckeye State to recognize same-sex spouses for certain purposes.
The bottom line is that we should see two or more federal appellate rulings on marriage rights this year and the High Court will be obliged to review these decisions. Keep in mind as well that the justices will likely suspend any and all marriage victories until they have a chance to weigh in themselves.
No Wiggle Room For High Court
You may recall that the Supreme Court only accepts a tiny fraction of the cases that present themselves for review. Court watchers have also observed the justices’ attempts to proceed slowly on marriage equality and gay rights in general, advancing our cause a step at a time, always careful to avoid issuing the type of major precedent that would foreclose national debate.
To everyone’s surprise, however, last summer’s vaguely written opinion in Windsor seems to have broken the dam despite Justice Kennedy’s best efforts. Instead of proceeding apace, we are rushing into a chaos of competing state standards, legal conundrums and political momentum.
In Missouri and Colorado, for example, state governors have decided that married gay couples may file joint state tax returns. It may not sound like a big deal, and it’s certainly a practical policy in view of our new obligation to file joint federal taxes. But here’s the thing. As opponents rightly point out, it’s against state law to recognize a gay marriage for any purpose. If you make an exception for taxes, why not for state pensions? Why not for divorce?
Oregon does not allow marriage, but it recognizes marriage from out of state. The couples who married in Utah during a short window of opportunity, are now married under federal law, but not recognized by Utah, even though they married at home. After that federal court in Ohio said the state must list same-sex spouses on death certificates, how can any other feature of wedlock be ignored? It’s crazy. There’s a conflict or a lawsuit in every state in America, and the Supreme Court will have no choice but to sort it out.
What’s the main driver for this inundation? Aside from the repercussions of the Windsor case, it’s a simple matter of math. It wasn’t long ago that only one state allowed same-sex marriage, November of 2008 to be exact. Then we had some progress in New England, as well as the marriage ruling in Iowa. But still, legal questions of marriage recognition across state lines remained theoretical, only because there were not that many traveling gay couples out there to run into problems.
In the last two years, however, we’ve added a zillion more marriage states, a journalism term for “I don’t feel like looking up the number.” Not only do we have a patchwork of state marriage laws, but we also have a split between federal policy and most state policies, with numerous exceptions creating hairline cracks in the shaky edifice. And now we have thousands of married couples running around the country and moving from state to state. It’s unsustainable, which is why the High Court can no longer afford to take a cautious approach.
So, Ellen Page of “Juno” fame came out of the closet. Good for her! I didn’t really think that the proverbial closet still existed for anyone outside sports and politics, but there you go.
And speaking of sports, of course the other big news this week is the decision by ex-Missouri Tiger Michael Sam to come out as gay on the verge of his NFL career. Here in our household, we do not care for Missouri, or anyone connected to Missouri. I married into a Jayhawk family, which includes some members who will drive across the Kansas City border in order to avoid paying sales tax to Missouri. No joke. Without going into the history of the pre-Civil War conflict, let’s just say that we still call people from Missouri “slavers.”
So imagine my surprise when my wife looked up from her iPad and remarked “good for Missouri.” Honestly, it was as if she announced that “Ted Cruz has a point,” or suggested a long weekend in Lubbock. It turned out that, on the heels of Sam’s announcement, Fred Phelps dragged the remains of his Westboro Baptist Church family to Mizzou and took possession of street corner, where he and his gang held up their usual signs. In response, thousands of Missouri students took to the opposite side of the street in protest. The lines went on forever.
Sam’s decision was courageous, but it was also pragmatic. He was openly gay, and any future employer would know his status. But nonetheless, he came out with style, and we are now on the verge of that Jackie Robinson moment in pro sports.
Yes, Jason Collins beat Sam to the punch. But after coming out last year, the journeyman hoopster has not been signed by any NBA team. People speculate that teams are avoiding Collins, not simply because he’s gay, but because they don’t want the “distraction” of the publicity that would follow him around. But it’s one thing to pass on a thirty-something veteran who may be over the hill. It’s another to reject one of the top 100 rookie prospects. Michael Sam will be drafted, and we will finally see what happens when you let a gay man into the locker room.
Considering what we’ve learned about what passes for camaraderie in the NFL, I’d say being gay is the least of his worries. Some of those Miami Dolphins make a frat party look like dinner at Downton Abbey.
Are We In Kansas?
While we’re close to the subject of Kansas, we had another mind-bending development last week, when the conservative head of the Kansas senate killed an antigay bill because it went too far.
Kansas falls under the jurisdiction of the Tenth Circuit, ergo its fate will be decided this summer when we expect the appellate court will rule on the Utah and Oklahoma cases. As a result, panicked lawmakers in Topeka drafted an abomination that would basically allow any public establishment or individual contractor to refuse to do business with gay couples on religious grounds. Such a law would not pass constitutional muster, but red states pass laws like that all the time. Indeed, the house ate this legislation up like hot bacon.
Kansas, once purple but getting redder all the time, was expected to rubber stamp this law if only to show constituents that no federal judge is going to kick the Sunflower State around without a fight. This is not Bob Dole’s state anymore. It belongs to Sam Brownback and his ilk, conservatives who include senate president Susan Wagle. And yet, surprise! There are limits. To everyone’s astonishment, Wagle announced that her Republican colleagues would not support discrimination, regardless of how much they believe in traditional marriage. The bill is dead.
There have always been limits. The reddest state would not jail gays or impound gay newspapers. But the limits seem to be getting closer, in a good way. First, the Indiana legislature declined to gay bash. Now, it’s Kansas. There are other bills like this one lurking around, including one in Congress. May they share the same fate.
Lose The Gum, Bro!
I made a command decision this morning to skip over the horrible homophobic goings on in Nigeria and Uganda. Ditto discussion of antigay policies in Russia. It’s too much. And plus, I already covered the Nigerian woman who kicked her gay cat out of the house last time around, so it’s not as if a provincial attitude colors every column.
As far as the Olympics are concerned, here are my impressions:
First, I thought the American snowboarder who won gold in slope style could have taken the gum out of his mouth on the podium and tried to be slightly more coherent. Second, I do not understand how NBC is running their coverage, because I keep seeing the same event over and over. I feel as if I saw the men’s short program five times. Also, Brian Williams keeps announcing results on the evening news that have not been aired in prime time. Third, I felt badly for Bob Costas. That was gross. Fourth, there’s a maniac covering the laborious cross country skiing who gets hysterically excited when someone increases their speed by what seems to me an imperceptible degree. Fifth, I do not understand why some individual skaters select discordant music rather than beautiful lyrical pieces. It’s like they’re unnecessarily undermining their performance.
I don’t know. I’m sort of over it until the hockey finals and the women’s figure skating.