By Ann Rostow–
Deplorable
Being a good Democrat, and being human, I usually get some satisfaction out of setbacks for the Republican party, and for conservatives in particular. Most of all, I derive pleasure from seeing Trump have a bad week.
But I’m not feeling good right now. It’s several things, not counting this mad man in Vegas.
First, Trump’s bad week is coming at the expense of thousands of my compatriots (I am part of the 54 percent of U.S. citizens who recognize that Puerto Ricans are indeed fellow Americans) and I don’t find anything to celebrate in watching them suffer.
Second, Trump is downcast because Roy Moore won the Alabama senate primary, and is likely to win a senate seat in December. Roy Moore? This guy makes Trump himself look sane and reasonable. I won’t rehash Moore’s history, but suffice it to say that every Alabama Moore voter should hang his or her head in shame. Moore is one of the cruelest, most narrow minded, anti-American public figures of our time, and he doesn’t deserve to be elected dog catcher, let alone senator.
But mainly, because I feel demoralized by everything. Trump is so despicable that I feel beaten down by him, by his complete dismissal of Puerto Rico, by his lack of humanity, by his obvious mental illness, and by our political system’s inability to get rid of him. Honestly, it should not be easy to get rid of an elected President, so I don’t even know what I want to see happen. I suppose I want him to have a mental breakdown and quit and just go off and play golf.
I used to think that the horror of Trump would give way after 2018 and 2020 to better times, more thoughtful leadership, a demand for pragmatism and progress from the center of American politics. Surely all of this is unsustainable.
Instead, we’re seeing venom, hatred, fringe conservatism, fanaticism, greed and open racism. We’re seeing a nasty core of America that shocks me. Yes, I know that we are all flawed and that Nazi Germany could theoretically have sprung up in any part of the world, but really, I’ve only thought that I know that.
I never really believed it could have happened in the United States. I thought our revolution, our constitution, our frontier history, our diversity, and our sustained democracy made us special. I thought that, despite our problems, we were good at heart, and that the arc of our history always bent towards justice. That was my version of American exceptionalism. Now Trump, his base, Bannon, Tom Price, Jeff Sessions, Steve Mnuchin’s wife, Roy Moore and the ignoramus internet trolls on the far right have made me doubt my deepest convictions. I hate them for that.
Dead Man Suing
I didn’t mean to rant, but it’s done now. I intended to write about the oral arguments held last week before the full bench of the U.S. Court of Appeals for the Second Circuit. The case on appeal to the 13 judges concerned a sky diving instructor who was fired for being gay. The man is dead now, but his estate is pursuing his lawsuit, arguing that Title VII of the Civil Rights Act, the federal law against race and sex discrimination, should be interpreted to cover sexual orientation discrimination as well.
The case pits the dead man, Donald Zarda, against his former employers who fired him after he announced he was gay and a client complained. The Equal Employment Opportunity Commission (EEOC) the federal agency in charge of enforcing Title VII, has weighed in, arguing with Lambda Legal that sex discrimination case law supports Zarda’s claim. Indeed, although most federal appellate courts have historically ruled against gay and lesbian plaintiffs, Title VII law has evolved in our favor over the last decade or so.
Recently, the full Seventh Circuit ruled that sexual orientation discrimination in the workplace is illegal under Title VII, and Lambda has asked the U.S. Supreme Court to review a similar case that we lost before an Eleventh Circuit panel last summer. The point is that we’re all hoping this big full court appellate case out of Manhattan adds legal weight to our position.
In view of this situation, it was discouraging, to say the least, that the Justice Department, which had zero stake in the civil litigation between Zarda’s estate and some sky diving company, jumped into the fray by submitting a brief and insisting on being heard at oral arguments. I read the ridiculous legal argument produced by Mr. Sessions’ underlings, although it was like being forced to eat a plate of last week’s haggis, and I admit that I fed some of it to the dog.
In other words, I skimmed parts of it, but I assure you, I got the drift. Two of the government’s main observations were that almost no appellate courts in the past had interpreted Title VII in this fashion, and that Congress had not gone out of its way to add “sexual orientation” to the law in all of these years.
The first point is circular logic; the second is sophistry. Congress wouldn’t appropriate a bucket of warm spit for the gay community unless forced by some oddball scenario that I can’t think of at present. So no, we have not seen Congress take the initiative and pass a gay rights bill. And your point?
The Second Circuit judges were unimpressed with the government lawyer, asking why the Justice Department elected to intervene in a civil case that doesn’t concern government action, and to do so in opposition to the views of a federal agency that technically is part of the Justice Department! When asked essentially if one part of the government consulted with the other, the Justice Department lawyer claimed mysteriously that it would be “inappropriate” to reply, as if the inquiry trespassed on a matter of national security. He was, in short, a buffoon.
The EEOC, by the way, consists of five commissioners, split 3–2 between the parties, and appointed for five-year terms, so part of the Obama EEOC is bleeding over into the Trump administration. Not for long. Trump has just nominated a conservative, Janet Dhillon, to the vacant post of Commission Chair.
Let’s Go to the Videotape
Meanwhile, speaking of the law, there was a strange little lawsuit handled up in Minnesota the other day, where a couple of nutty videographers asked a federal court whether or not they could refuse to take gay wedding clients. Keep in mind, they didn’t actually have any prospective clients; they just wanted to be able to snub them with the court’s blessing in the future.
Normally, these hypothetical legal maneuvers are unconstitutional, but in this case, the court ruled that Minnesota’s recent legal guidance, emphasizing that businesses may not discriminate against gay and lesbian wedding parties, meant that the would-be wedding purveyors had enough of a stake in something constitutional to justify a lawsuit. The court went on to rule against them, instructing them that if they choose to start offering wedding videos, they will be obligated to offer them across the board, to both gay and straight couples.
This is particularly interesting, because all of the other wedding cases are state cases, brought by unhappy bakers and florists who have been fined or citied for violating state civil rights law. They have not been federal matters, until these videographers contrived their First Amendment case. It’s also interesting, of course, because Court is now in session and we are awaiting action in the Masterpiece Cakeshop cake, where our friendly Denver baker will insist that he has a First Amendment right to refuse to “speak,” i.e. to bake a cake, in support of a gay marriage.
Do Nothing, Congress. (Please.)
What else is new? Have you seen that BDO commercial where the father and daughter are walking through the vast vineyards conniving about how to rip off the government by avoiding estate taxes?
“Dad, we can sell the stake to a limited 56x-9 pass through entity and pay your salary through the Pakistani subsidiary—they run their accounts in the Caymans. I’ll buy it back using Mom’s exempt municipal bonds in a direct exchange. We’ll pay nothing for the whole transaction, and we’ll get the farm enhancement tax incentives.”
“Sounds interesting. Let’s run it through BDO.”
“It was their idea!”
I wouldn’t have noticed, were it not for the recent talk of tax reform, and the various charts that indicated rich people are about to get a whole lot richer yet again. For no reason. No, rich people are not going to “create jobs” with extra cash. They’re going to invest it, and pay BDO to help them avoid estate taxes. That’s what I would do. And yes, it will increase the deficit. I don’t mind increasing the deficit for infrastructure, which must be repaired and modernized, or for education or preventive health, which pay for themselves. But for tax cuts?
Last, and in many ways least: Steve Mnuchin. Is he not the personification of a pompous ass? Don’t you enjoy watching some of these sanctimonious, smarm balls reach their levels of incompetence and fall by the wayside?
May they continue to tumble off the White House payrolls.
Fear Factor
Okay then. I could talk about a half-dozen cases that might make it onto the Supreme Court’s docket this session, including a new transgender high school bathroom suit and a lesbian discrimination case out of Georgia. Nah, we have plenty of time for that. The session just started.
Oh, one of those cases might involve the status of the antigay Mississippi law that somehow got a green light from the Fifth Circuit. Will the High Court agree? Will the law be put on hold until its legal fate is determined? Maybe. This is the law—in case you’ve forgotten—that more or less lets businesses pick and choose which people and groups they feel like serving today.
I guess about 50 or 60 gay men got rounded up, tossed in prison, and many were tortured by authorities in Azerbaijan. What the hell? What is going on and why? Is there anything that can be done about this? My only knowledge of the place comes from one of Rachel Maddow’s lengthy discussions of some suspicious Trump business dealing, which in that case was a strange hotel built in the middle of nowhere in the north of Baku. The hotel had no access driveway and seemed far away from completion. There were many fishy business partners involved, yet my memory is quite fuzzy, so I will stop. Let’s just agree that a few nights at Trump Baku is a trip to avoid.
Also, I just read that an unpleasant gay man named Ric Grenell is set to become Ambassador to Germany. Really? Ric Grenell is a Republican operative, who made rude comments about various liberal women, including the aforementioned Rachel, Hillary Clinton and others. Keeping it bipartisan, he also said Calista Gingrich had snap-on hair. In other words, the man is one of those gay guys who doesn’t particularly like women. Plus, he also lacks the kind of résumé you’d expect someone to assemble by the time he or she is named Ambassador to Germany.
Seriously, I know you get plum posts like this if you give a zillion dollars to the presidential campaign. And maybe you’ll be tapped if you’re a celebrity; or if you’ve lived somewhere, or married someone, from a major country; or speak the language or something. But Grenell has no claim to fame, other than some years as U.S. spokesperson at the U.N., and a couple of weeks of work for Mitt Romney back in the day. Anyway, Grenell was questioned by the Senate September 30, so we’ll see how it all works out for him.
Finally, I don’t know how to react to the Vegas shooter. Obviously, it’s horrible. It also seems to transcend the kind of analysis that makes us feel better in the aftermath of tragedy. When we pinpoint motives, we feel safe around those of our friends and neighbors who are not religious, insane, racist or whatever it is we’ve identified as a clear and present danger. So now do we have to watch out for sixty-something real estate investors?
I lived in New York during the summer of Son of Sam, when we all made sure we didn’t have long brown hair, the murderer’s preference! It doesn’t help when the serial killer likes everyone: young, old, male, female, blond, brunette.
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