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    Ann Rostow: Bad Decision

    By Ann Rostow

    Bad Decision

    With all the insanely bad legal news of late, I neglected to rant about the High Court’s ruling in the Missouri church and state case a few weeks back. I’m sure I mentioned it at some point. This was the church that wanted to access a state program providing rubberized materials for playgrounds. The church had a playground and needed the materials, but Missouri law does not allow churches to participate in state giveaways of this sort—quite rightly so.

    Some might say that denying the church its playground upgrade was pushing the separation of church and state too far. But the church applied for $20,000 in taxpayer funds under the program. That’s serious cash, dear friends! And, assuming the church would have continued with its $35K playground renovation regardless, when all is said and done, the money would have wound up in the church’s bank account to be used for any purpose. That’s just wrong. 

    Disturbingly, the Court ruled 7­–2 in favor of the church, insisting oddly that the case reflected religious discrimination. Justices Sotomayor and Ginsburg dissented. If the separation of church and state means anything, wrote Sotomayor: 

    “… it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

    We’ve always known that Neil Gorsuch has an over-the-top legal bias in favor of religious actors, but we’ve recently discovered that he has an antigay streak a mile wide as well, not a great combination in a man who will likely sit on the High Court for the next three decades.  

    Given the disturbing deference for the Missouri church, it was some comfort the other day to see the full Fourth Circuit rule 10–5 against a cabal of North Carolina county fathers who insisted they had the right to pray before council meetings. We know that prayers are allowed in such contexts as long as they don’t push a particular faith down everyone’s throat. But the Rowan County Board of Commissioners took things to the extreme, leading the prayers themselves, relentlessly going on about Christ and encouraging the audience to participate. Since all of the commissioners were conservative Christians, and since they were the only ones allowed to lead prayers, the board meetings turned into evangelical camp meetings, or so it sounds. At any rate, they were sued and they lost, and now they’ve lost again. I wonder if this will wind up on the High Court’s petition list.

    Cake Wars 

    Speaking of religion, I just suffered through the comment thread that followed an article about Masterpiece Cakeshop. You recall that the Supreme Court ended their last session by accepting review of the case that pits a Denver baker, Jack Phillips, against the state of Colorado’s ban on sexual orientation discrimination in the public square. The arguments will no doubt be set for sometime this fall, and I live in dread of the day, maybe early next year, when the Court announces its decision.

    Already, the headlines are calling for “compromise” and are asking why we can’t all get along. Who would want a cake from a baker who opposes equality, many ask inanely? Let’s just live and let live! Get the cake from somewhere else. Would a Jewish baker be obliged to make a swastika cake? 

    I want to scream at the top of my lungs at these people—the comment board people, the article writers, the op-ed-sters, the “I’m not lawyer, but it seems to me …” people. I simply want to ask them this: If religion can trump a state civil rights statutewhat happens to the gay rights laws in the other 21 states around the country? Are they now invalid? Effectively, the answer is yes. 

    This isn’t about a cake. This is about a state law that forbids GLBT discrimination in public accommodations. This is the type of state law we have spent years and years fighting to enact. Now, a guy who doesn’t like gays is asking the Supreme Court if he can just ignore the statute because it does not suit his personal religious views. The answer simply cannot be, “Yes, sure go ahead.” The answer can’t be, “Yes, in some cases.” The answer must be a flat out, “No way.” 

    We know that at least three justices will say “yes,” and we suspect John Roberts will join them (although he can be unpredictable). It’s up to Kennedy to put aside his tendency to compromise and take a stand on our behalf, because anything short of a clear statement in support of state gay rights laws will destroy them. 

    For that matter, if a baker can refuse service to a gay couple, why can’t he say no to the interracial pair as well? Why should he serve a Muslim? There is no good answer to this question. The state of Colorado has a compelling interest in protecting its citizens against public bias, and Colorado has expressly included GLBT citizens in its protection. No one asked Jack Phillips for a dick-shaped cake that, like the swastika, he can refuse to make. No one can force a business to produce a customized product, and it’s not discrimination to say “no” to someone’s special order. What a business can’t do is say “no” to the customer himself based on prejudice. 

    Oh, and why not go to another baker? They, of course, went to another baker! You don’t hire an antigay photographer or a disapproving florist for your wedding. You’re not going to hire the Christian Catering service or the God Rocks! boys band. That doesn’t mean that uncooperative businesses can’t be sued for violating the law. 

    Jack Phillips also claims his artistic vision is being coerced, yet the man refused to provide even a generic wedding cake for a same-sex wedding, so that aspect of his case is encouragingly weak. May the rest of it implode as well.

    It’s Getting Hot in Here

    Oh, what else is new? It’s almost August, so do we really care? It’s the heart of the summer, the doldrums, the heat, the soporific heavy afternoons, dare we say it? The Cannicula! Can we really be expected to track legal and political news developments under these trying circumstances? We can, of course.

    Actually, there was a surprising House vote the other day, a 214–209 vote that killed an amendment to a defense authorization bill that would have stripped transition-related medical coverage for transgender service members and/or service members’ transgender family. I wasn’t even aware that such an amendment was up for a vote; it seemed to be tossed in under the radar, and it seems we can thank a few decent Republican house members for ending the threat. 

    Meanwhile, another anti-trans bill is floating around the lower chamber. This one would dictate that the terms “gender” or “sex” in federal law cannot be construed to include transgender people or gender identity. I’m not sure that such a law would be enforceable, given that the High Court has long since ruled that enforcing gender stereotypes in the workplace is a form of sex discrimination. 

    As you may have heard, Lambda Legal has asked the High Court to hear a case next term that involves the definition of “sex discrimination” in federal law, this time on behalf of a lesbian hospital employee from Georgia. But the principle is the same. Could Congress, reacting to this legal issue, simply dictate that sex discrimination cannot include gay bias? 

    The answer is probably no, but it’s still disconcerting to see these types of proposals tossed into the arena. In its last legislative session, the state of Tennessee passed some ridiculous “law” that said all statutory terms must be interpreted according to their natural meaning—or something like that, I’m not checking it. Words like “husband,” “wife,” “mother,” and “father” would thus serve as a barrier to recognizing gay couples, or so the lawmakers seemed to think. Such gimmicks, however, cannot undercut the reality of court precedent and constitutional guarantees. Obviously, gay couples continue to be married and recognized as such throughout Tennessee. 

    It’s just a slap in the face, but it seems as if lately we’re getting slapped around a little harder than usual and a little longer than usual. 

    ACLU on Alert for Anti-GLBT “Guidance”

    The American Civil Liberties Union has filed a complaint in federal court in New York, charging four Trump administration cabinet departments of ignoring requests for information under the Freedom of Information Act. Back in March, the ACLU reportedly asked for a range of documents from Health and Human Services, Justice, Labor and Treasury in order to keep tabs on rumored new antigay policies. None of the departments responded.

    We all heard disturbing reports last spring that the Trump administration, perhaps egged on by Pence or Sessions, would be issuing executive orders allowing numerous government officials in many areas to discriminate against the GLBT community based on personal religious faith. But although Trump has rolled back some of the Obama administration’s gay friendly policies, he has not gone into full reverse by drafting antigay policies in their place. Nor has Trump issued any so-called religious freedom executive orders … yet. 

    But apparently, Sessions is now gearing up to release religious liberty “guidance” at Trump’s request. I gather the ACLU is trying to get its hands on early drafts or other materials that could shed light on the administration’s machinations. Sessions reminds me of an evil little dwarf in a fairy tale, scuttling around with a wink and a twinkle as he plots against the good citizens of the kingdom. What with the troll-ish Russians and the slicked back knaves we see in Don Jr., Eric, Jared and the new one, “Mooch,” we have quite the cast of characters. 

    Tarheels and Texans

    Speaking of the ACLU, our allies teamed up with Lambda Legal to challenge the latest version of North Carolina’s bathroom bill. The trans-trashing fiasco of 2016 was theoretically “repealed” by newly elected Democratic governor Roy Cooper once he took office earlier this year. But after deleting the flat anti-trans language in the original, the new bill then forbids local towns and counties from enacting GLBT rights laws until 2020, and also banned public organizations from issuing protections for transgender bathroom users. 

    Frankly, I never understood the “repeal,” even though it was enough to satisfy the NCAA, which pledged to restore North Carolina’s status as potential hosts for future basketball tournaments. I think some other boycotters relented as well. 

    Meanwhile, Texas is still fooling around with a bathroom bill to ensure the safety of mothers and daughters, who could otherwise be at risk for assault by transgendered women in the ladies’ room. There are other items on the agenda of the special legislative session now underway, but this one takes up all of the oxygen. All hope lies in the wily House Speaker, a moderate Republican who killed the bill in the regular session, along with a number of other insane proposals.

    I am leaving for Scotland in a few hours as I’m in Texas now where it is over a hundred degrees in the shade, and I just killed a sturdy rosemary plant by forgetting to water it for two days. It was fine! Two days later it’s a dry, gray shadow of its former self. When I turn on the hose, the water is so hot that I can’t touch it until it cools off. I have to reach into the car and start the ignition and stand outside for a few minutes until I can get in. Don’t ask why Scotland. It’s a long story, but you can look for us at the women’s British Open in early August. You can recognize me by adding ten years to the photo that accompanies this column.