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    Ann Rostow: Breyer Beware

    By Ann Rostow–

    Breyer Beware

    Writing in The Atlantic, Emma Green delves into the disturbing rightward tilt of the federal judiciary in an article entitled “How Democrats Lost the Courts.” 

    “The possible explanations are many,” she writes. “Democratic voters don’t care as much about courts as Republicans do; donors on the left didn’t invest in the courts the same way as those on the right have. But some Democrats are starting to suspect that the story is simpler: They’ve been chumps.”

    In their defense, few could have anticipated the outcome of the 2016 election. Most people were looking forward to a four or eight-year Democratic administration, beginning with a nomination to replace one of the Court’s most conservative members with a center or center-left justice. After that, Clinton would have been expected to replace Ginsburg and maybe others. Well, you know what happened instead.

    Now, to the horror of many, 82-year-old Justice Breyer has ignored calls to retire while Democrats hold the Senate and the presidency, blowing them off and hiring a group of clerks for the next session. It’s hard to imagine how the Supreme Court could get even more conservative, but, um, no it’s not! All it takes is for Mitch McConnell to get his hands back on the majority, which could happen in a hot minute if one of our ancient Senators kicks the bucket. 

    Meanwhile, as the current High Court session came to an end, we saw a barrage of stories trying to make sense of some of the more curious machinations. Is there a conservative split between the Roberts group and the Alito group? Do those groups exist? Is Barrett more cautious than everyone feared? 

    Adding to the mystery as far as our community is concerned are two big late developments. First, the Court declined to review a trans rights victory out of the U.S. Court of Appeals for the Fourth Circuit, and second, the justices waved off one of the most high-profile wedding services cases: the antigay florist who refused to do business with two Washington men.

    It’s tempting to see these as hopeful signs. The Court agrees that transgender youth should be free of discrimination in schools! Yay! The Court doesn’t want to defend a super Christian business owner who hates us! Yay! 

    But it’s more likely that the Court is wary, and, yes, that Barrett is more cautious than everyone feared. As you know, it takes four votes to agree to review, and in the case of Arlene’s Flowers, Justices Thomas, Alito, and Gorsuch all said they would have accepted the appeal. Arlene’s Flowers was a fairly clear-cut matter of discrimination against gay clients in violation of state law. But dollars to donuts says that someday we’ll see a public accommodations case with facts that favor the Christian employer, and that when that case reaches the High Court, we will see another justice or two vote to hear it. I’m also guessing that Amy Barrett won’t stay cautious for long.

    Court Watching

    Among the experts parsing the Court’s whys and wherefores was Linda Greenhouse, writing in The New York Times about religious freedom. We felt like we dodged a bullet last month in Fulton v City of Philadelphia when the High Court declined to overturn the 1990 precedent that said religious freedom can’t serve as an all-purpose excuse to evade generally applicable laws. 

    We like that precedent! And particularly when those generally applicable laws include rules and regulations forbidding GLBT discrimination. In our case, however, the Court went on to rule that the city of Philadelphia’s law against discrimination was not generally applicable as applied to foster care, giving the antigay Catholic plaintiffs what looked like a technical knockout.

    But as Greenhouse points out, the Court may gradually be managing to gut the heart out of the precedent without triggering the negative publicity that a flat overrule might generate. It’s rare to find a law or policy that operates with no exceptions and applies smoothly to every situation. So, as long as there’s a case to be made that an exception was carved out for this or that, the Court seems to argue that religious actors should be given the same opportunity—or maybe even a larger one. 

    Recall that, with Ginsburg on the bench, the 5–4 High Court upheld the right of states to limit church services for public health reasons. With Barrett, the 5–4 Court went the other way, ruling that as long as, let’s say, stores were operating, then churches should be allowed to hold services without interference. This even though there’s no comparison between running into a store for ten minutes and spending an hour or more, unmasked, singing in church. 

    I know I belabor this subject, but it’s annoying to watch sanctimonious people give us the middle finger while the courts shower them in sentimental smarm and unquestioningly elevate their “deeply felt” religious faith. And it’s just getting worse.

    Mean Season

    Moving on, among the various unpleasant state-level policies, there’s a new one in Tennessee that requires restaurants and other places that let transgender people use the bathrooms to post a sign “warning” the public that God knows what might happen to them if they dare to visit the facilities under these circumstances. One restaurant sued under the First Amendment, arguing that its free speech rights were violated by this forced nastiness that flew in the face of the restaurant’s own branding.

    On July 9, a federal judge blocked the law from taking effect in the lawsuit, which was litigated by the ACLU. “The plaintiffs have presented evidence that they have strived to be welcoming spaces for communities that include transgender individuals and that the signage required by the Act would disrupt the welcoming environments that they wish to provide,” wrote U.S. District Court Judge Aleta Trauger. “That harm would be real, and it is not a harm that could simply be remedied by some award at the end of litigation.”

    Unlike in previous years when the state legislatures were basically all talk, this year they seem to be enacting horrible things right and left, including the above bathroom sign bill that was passed in late April. The law mandates that any “private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.” 

    Who thinks this stuff up? Who has time for this? I could fill this column with gratuitously cruel proposals from around the country that serve no public purpose whatsoever. In fact, the Human Rights Campaign says that over 250 anti-GLBT bills have been offered in over 30 states so far, and I have no idea how many have wormed their way through the process and into the sausage. I should know, sorry.

    I did see that the governor of Ohio just signed budget language that allowed medical providers and insurers to “decline to perform, participate in, or pay for any health care service which violates the practitioner’s, institution’s, or payer’s conscience as informed by the moral, ethical, or religious beliefs or principles held by the practitioner, institution, or payer.”

    What the hell does that mean? It’s supposed to apply to specific procedures like abortion, which I don’t imagine any disapproving doctors are obliged to perform to begin with, but it sure sounds as if it could be used to reject classes of patients as well. Mike DeWine, who could have used a line-item veto on this little gem, said something to the effect that people could just go to other providers if they have a problem. Hmmm. Tell that to the transgender man in the one-hospital town.

    Bits and Pieces

    I guess California added a bunch of states to its 2016 ban on state-sponsored business travel to places that allow discrimination against GLBTs. New to the list are Florida, Montana, West Virginia, Arkansas, and North Dakota, bringing the total to 17. The travel ban, which is mostly symbolic, was nonetheless challenged by Texas in a complaint that was ignored by the Supreme Court earlier this year. (See Lou Fischer’s column in this issue for updated information on the travel ban.)

    And God know what is happening in Eastern Europe. Bad things, ladies and gentlemen, particularly in Georgia, where efforts to pull off a Pride celebration ended in chaos and antigay attacks. A cameraman just died from being beaten up in the melee, but activists nonetheless insist that the whole situation has increased public sympathy for the GLBT community.

    In Zagreb, Pride marchers were attacked and a rainbow flag was burned. Meanwhile, the European Union continues to struggle with member state Hungary’s anti-GLBT laws and policies, in particularly the recent ban on the “promotion” of homosexuality in schools. Discrimination on the basis of gender and sexual orientation is technically illegal in the EU, but don’t mention that to Hungary or Poland. It’s possible that the Union could sue Hungary before the European Court of Justice, and/or withhold some funds. 

    There’s also a really despicable evil priest, who will face a church trial for many counts of sexual abuse of many men over many years. Msgr. Tony Anatrella, a Vatican advisor and psychotherapist from France, claimed to be able to “heal” homosexuality through his innovative “treatments,” which consisted of forcing men and boys to put up with his sexual assaults. And yes, he’s had several disciplinary scrapes and “reprimands,” although the man is evidently not in jail right now, so it sounds like more of the same, n’est-ce pas

    Oh, and not only does the good Monseigneur deny all the accusations, but he is also vociferously opposed to gay rights and same-sex marriage, which he called “simply ridiculous,” and “disastrous.”  

    A Good Note

    I was wrong earlier to drop the news of our transgender rights court victory into the beginning of this column and then abandon the story as if there was nothing more to be said. As the ACLU’s James Esseks writes in a piece on the Court for The Advocate, the fact that the High Court left intact our Fourth Circuit victory in the Gavin Grimm high school case means that three federal appellate circuits, representing 13 states, have all ruled in favor of transgender students fighting for the right to use the school facilities. 

    You remember Gavin Grimm, I’m sure, the Gloucester, Virginia, high school kid who sued successfully for the right to use the school bathrooms, in a case that was then picked for Supreme Court review back in the day. That’s never a good sign, but as mentioned earlier in this column, this was a time when we all thought Clinton would be our next president. Who cares if the High Court takes a second look at one of our victories, we chuckled to ourselves! With Clinton’s new justice, we’ll just add another great precedent to our collection!

    Well, the Trump administration took office. The Department of Education changed its transgender rights policy. The High Court sent the Grimm case back to the lower courts with instructions to review the case from scratch without the benefit of the Obama Education Department’s trans-friendly guidance. Fast forward a couple of years, however, and high school alumnus Gavin Grimm won his second go-round at the Fourth Circuit, this time purely on the merits of his case. It was this, his second, victory that the High Court has now let stand, in a move that is undoubtedly significant and perhaps a lasting testament to the future of transgender rights cases. This is the third time in three years that the Court has rejected one of these petitions, although not surprisingly, Justices Thomas and Alito would have liked to have taken the case.

    It’s noteworthy, perhaps, that Justice Gorsuch was not mentioned in the decision to reject review. It was Gorsuch, as you know, who ruled that transgender discrimination is a subset of sex discrimination, which itself is outlawed in the workplace under Title VII of the Civil Right Act. Sex discrimination, of course, is also outlawed in public schools under Title IX of the Education Amendments, so Gorsuch’s reasoning should translate from the office to the high school. Yet Gorsuch himself noted that in his decision (in the 2020 Bostock case) “under Title VII … we do not purport to address bathrooms, locker rooms, or anything else of the kind.” That may have been true, but just because the majority did not “purport” to address bathrooms and locker rooms does not mean that bathrooms and locker rooms weren’t addressed. Arguably, they were.

    Cheers to that!

    Published on July 15, 2021