By Ann Rostow
Worst Governor Ever
The premise of Thomas Frank’s 2005 polemic What’s the Matter with Kansas? was that voters inexplicably support people and policies that undermine their own economic interests. Why? Well, that was the question. Yet in my experience, the Jayhawk state was far more complex. A red state, yes. But a rural red state with a commitment to education, to fairness. A state that elected a Democratic governor, a woman at that; a state where the capital city instituted an anti-discrimination policy that survived a public vote.
But that was then, a decade ago. And this is now, 2015, when an embattled and craven conservative governor managed to win reelection last year even after demolishing the state budget and putting the wrecking ball to Kansas school funding. Now, Sam Brownback has gratuitously abolished the discrimination protections for Kansas’s GLBT state employees that were put into place in a 2007 executive order by his predecessor, Kathleen Sebelius.
Why do that? And why now when Brownback is entering his fifth year in office?
The only explanation that has risen to the surface of the roiling debate is that Brownback is trying to shift attention from his abysmal economic policies, and/or that he is trying to curry favor with Tea Party legislators whom he needs to help him reverse course and raise revenue. Maybe. But the decision is a stunning one in this day and age, and Brownback is forcing Kansas to fit the stereotype of a backwards fly-over state.
Kansas, by the way, has also distinguished itself by continuing to litigate its obligation to marriage equality, an obligation that was articulated by the U.S. Court of Appeals for the Tenth Circuit in the Utah and Oklahoma cases, and upheld by the Supreme Court when the justices chose to let those rulings stand last October. Yes, you can get a marriage license in most Kansas counties, but others continue to resist and the state continues to fight for the right to, let’s say, force Kansas couples to file individual tax returns.
Loyal readers recall that I’m married to a Kansan, and have evolved into a loyal Kansas basketball fan. Indeed, a sullen cloud of frustration materialized in our household this week as the Jayhawks lost a one-point heartbreaker at West Virginia. There’s even a possibility that it was our fault, since we were too lazy to put Jayhawk collars on our pugs, who were therefore unable to root for the team. This is just to say that the distressing situation in my adopted state hits home, literally.
Strange Home, Alabama
Meanwhile, speaking of recalcitrant states, what the hell is going on in Alabama? As everyone expected, the Supreme Court refused to put a hold on marriage equality in the state, which was scheduled to begin February 9. Sure enough, delighted couples rushed to the probate judges, and many of them emerged with licenses in hand.
Others, however, found the offices closed, or were unwilling to abide by the court order. In Mobile, the National Center for Lesbian Rights and the ACLU of Alabama went back to U.S. District Court Judge Callie Granade (the same judge who has ruled against Alabama in two other federal marriage suits) and won yet another order, instructing the local probate judge to get with the program. Granade’s February 12 order was enough to wrangle a few more county judges, but amazingly, there are still more who simply refuse to issue licenses until they hear from some higher authority. Perhaps a thunderbolt from Yahweh.
When a federal court strikes a state statute on constitutional grounds, the decision is reviewed by the relevant federal appellate court, and subsequently by the U.S. Supreme Court. Sorry for the simplistic reminder, but hello? No state authority has any jurisdiction, period. In this case, both the Eleventh Circuit and the High Court refused to intervene, leaving the federal judgment in place and enforceable. Yet, with the encouragement of Alabama’s lunatic Chief Justice Roy Moore, other judges are claiming that they need a clear mandate in order to proceed, and a petition for review has been filed at the state supreme court, even though that court should rightly have nothing to say on the matter.
Perhaps, they muse, Judge Granade’s ruling doesn’t apply statewide, but only applies to her specific district? Or maybe they can just wait until the U.S. Supreme Court makes a definitive ruling on the merits of marriage! But these excuses are untenable. It’s infuriating, and we can only hope that these judges are sanctioned with personal fines and contempt of court charges. Honestly.
Meanwhile, speaking of the Eleventh Circuit, the appellate court has decided to put a hold on its marriage appeals until after the Supreme Court has ruled this summer. The court is facing appeals from Florida and Alabama where, in theory, marriages will continue during the waiting period.
Cry If You Want To
I didn’t know the late Leslie Gore was gay, did you? I gather she came out of the closet ten years ago. At any rate, her obituary (at 68 from lung cancer) says she is survived by her partner of thirty some years.
What else? There are some horrible bills floating around the state legislatures, including one out of Arkansas that purports to ban local anti-discrimination laws that don’t conform to state policies. Hmmm. Sounds awfully like the Colorado amendment struck down by the Supreme Court in Romer v Evans, but the drafters seem to think that they’ve dodged the constitutional bullet because they haven’t singled out LGBT bias by name.
It’s not as though this bill, or the many other impermissible legislative ideas under debate, will pass muster in the courts. But it’s exhausting to contemplate the endless rounds of legal battles that we will have to pursue if and when some of these proposals become law around the country. And think of the tedious news items that some of us will have to generate as a result! “Arkansas discrimination law: Lambda Legal objects to latest Eighth Circuit delay in briefing schedule.” “Federal court strikes Texas law requiring gay men to dye their hair red: State to appeal to Fifth Circuit.” “Gay quarantine measure challenged: Do states have the right to put same-sex couples in camps?”
Actually, those would be pretty interesting news items, wouldn’t they?
Damn my dog. She barks to come up on the couch. Waits five minutes and barks to be put down on the floor. Over and over again. It’s irritating. How am I supposed to work under these unnerving conditions? I think I mentioned in some other column that it might be fun to be sent to a GLBT internment camp. As long as the music plays and the cocktails flow, of course. And there must be a pool. And excellent chefs. And, of course, travel privileges.
Actions Speak Louder Than Words
So, did you read that President Obama allegedly was secretly in favor of marriage equality even as he told the voting public that he was “evolving,” or thought that gay couples should have rights, but still thought marriage was between a man and a woman? This nugget was mined from David Axelrod’s new book, and I’ve read some headlines that say Obama “lied” about his views on marriage. Really? Come on, people.
I have to say that, in 2012, when Obama was being pressured by the GLBT community to explicitly back same-sex marriage, few commentators bothered to note that Obama had already come out for the premise that discrimination against gays and lesbians was presumptively unconstitutional, and his attorney general had drafted a lengthy memo to that effect. Ergo, Obama, a constitutional lawyer, was basically on record in our favor and his administration had also produced powerful legal briefs on behalf of same-sex couples in the various DOMA cases. This despite the fact that the United States was technically the defendant in those cases! Does anyone really care how he parsed his position to the voters? I don’t. I consider Obama’s support for marriage equality a significant factor in our recent court victories. The fact that he operated below the radar was a commentary, not on Obama, but on the limited range of the electorate’s radar. As for his disingenuous talk of “evolving,” I see it as a harmless campaign tweak.
Sixth Circuit Sends Millions to Gay Student Leader
In other news, ISIS reportedly threw several gay men off tall buildings and finished off the dying men by stoning. This hardly represents discrimination against gays since ISIS seems to have no compunction against murdering anyone and everyone who is not an official ISIS member. But, like the fact that gays were sent to Nazi concentration camps, it’s worth noting that gay men are among a long list of specific targets. I can’t begin to discuss this issue, so I will move on.
Here’s a story. Oh wait. Guess who wants to go down on the floor. The damned pug. Too old to jump down herself, but young enough to make a scene.
As I was saying, a few years ago there was a bizarre situation in Michigan, where an assistant attorney general launched a sustained attack on social media and through personal protests against the gay student body president of the University of Michigan. These relentless diatribes went on and on for no reason until finally the guy was fired, even though his boss was one of the most conservative attorney generals in the country (Mike Cox).
The student, Christopher Armstrong, eventually sued Andrew Shirvell for defamation, emotional distress and the like, winning a multi-million dollar settlement in federal court. The disgraced lawyer, in turn, acted as his own advocate in court, and in a separate suit, claimed he was improperly fired for expressing his views.
Lately, Shirvell lost his wrongful termination suit, and earlier this month, the U.S. Court of Appeals for the Sixth Circuit upheld Armstrong’s damages, which were cut on a technicality from $4.5 million to $3.5 million. I’m not sure if Mr. Shirvell is in possession of the sum in question, probably not. But it’s nonetheless gratifying to hang a $3.5 million lien over his head for the rest of his income-producing days.
Shirvell, who reportedly was characterized as unfit to practice law by his alma mater, Ave Maria, set up a blog called “Chris Armstrong Watch,” where he called Armstrong “Satan’s representative,” said he was a member of the Klan and the Nazi Party, accused him of hosting gay orgies in his dorm room, and basically went on a weird rampage against the innocuous college student, showing up with signs at his dorm until he was banned from campus. Eventually, a jury determined that the various accusations were not only false, but also maliciously so because they were demonstrably untrue. Ergo, big bucks to Mr. Armstrong, who had problems finding a job after college due to the publicity.
Is there any doubt Mr. Shirvell will be caught with his (gay) pants down before too long?
The Notorious RBG
I should mention that there’s an effort here in my home state of Texas to drop the hold on marriage equality, given the developments of the last six months. But we are also expecting a ruling from the U.S. Court of Appeals for the Fifth Circuit, which heard arguments on cases out of Texas, Louisiana and Mississippi in early January.
I’m not sure what to expect out of all this activity. I just know that Texas will have to bow to the inevitable within a fairly short time. Meanwhile, I may have told you that the U.S. Court of Appeals for the Eighth Circuit is proceeding with its marriage cases, and will hear oral arguments in May. Also, the First Circuit is still reviewing a case out of Puerto Rico, one of the few rulings that went against us last year.
Finally, the National Organization for Marriage has demanded that Justice Ginsburg recuse herself from deliberations on marriage, given that she has allegedly tipped her hand in interviews and comments. For that matter, so has Scalia, so should he recuse himself as well? Obviously the suggestion is ridiculous. Did you notice, by the way, that Ginsburg told the press that she nodded off during the State of the Union because she was “not 100 percent sober?” Apparently, she drank too much wine with Justice Kennedy at dinner, and she had recently pulled an all-nighter because her “pen was hot.” Isn’t honesty in a public figure refreshing?
arostow@aol.com
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