By Ann Rostow
Conference Call
Welcome to the waiting game, dear readers. On Monday, September 29, the U.S. Supreme Court considered whether or not to accept up to seven marriage equality cases; three related cases out of Virginia, and one each from Utah, Oklahoma, Indiana and Wisconsin. No one knows exactly when the Court will announce the results of their deliberations, but it should be soon. It’s also possible that the justices will simply reschedule the cases for another conference, as they did a couple of years back when several challenges to the Defense of Marriage Act were pending.
A number of analysts continue to suggest that the justices might duck these cases and perhaps wait for one of the other federal appellate courts to rule against same-sex couples in order to crystalize the debate. But it’s worth repeating that such a dodge is unlikely.
First, the High Court specifically asked these petitioners to step on the gas and send their applications for review in time for the first conference of the 2014/2015 term. Why bother to expedite these cases if not to take them on? Second, the Court has put a hold on marriage rights throughout the Tenth, Fourth and Seventh Circuits. Again, why put a pin in these rulings only to pull it out a few months later? Also, note that the Court did not wait for a “conflict in the circuits” before taking on the challenge to DOMA. The question of whether marriage discrimination is constitutional is not an arcane twist in federal procedure. It’s a profound dilemma that has divided the country and requires an immediate national resolution.
Finally, a split in the circuits is useful because it allows the Court to evaluate the pros and cons of a particular issue as articulated in high-level federal court opinions. In our case, the justices have plenty of access to the arguments on the losing side of these petitions, and it’s not as if another appellate court will produce a novel interpretation of constitutional boundaries that no one else has produced to date.
And so we wait. We’re also waiting for an opinion out of the Sixth Circuit, where marriage was argued in early August, as well as a decision out of the Ninth, where the oral arguments were held early September. We’re likely to lose the first and win the second, so there’s your circuit split. Meanwhile, a number of marriage cases are languishing in the lower courts, where they’ve been put on hold pending a High Court decision next year.
Taking the Cake
I feel as if I repeat the same summaries every fortnight, but the situation evolves each week and the subject demands sustained coverage, don’t you think? If you are becoming tired of marriage equality, you have a like mind in Michele Bachmann, who told Sirius Radio’s Michelangelo Signorile that the whole subject was no longer an issue, and was in fact, “becoming boring.” Bachmann later explained that she was not implying that her support for tradition was waning, only that she was bored by the media continuing to attack Republicans.
Bachmann was interviewed during the annual Values Voters Convention, normally an occasion marked by full-throated condemnation of everything gay, lesbian, transgender and bi. This year, observers noted that few speakers even mentioned marriage equality and, if they did, it was only in passing.
I did catch a clip of the panel that included Melissa Klein, an Oregon baker who refused to make a cake for a lesbian wedding and who now faces huge fines for violating the state’s anti-discrimination code. Klein wept as she described the attention to detail that characterized her wedding cake process. She explained that she interviewed each bride to find out what she was like, what color dress she was wearing, where the honeymooners were headed, etc. Only then could she produce the perfect cake, tailored to each couple with care.
I suppose that she was trying to say that her misdeed was not a simple matter of refusing to sell a cake. Indeed, in order to accept the lesbian clients, she would have been obliged to immerse herself in the same-sex celebration in conflict with her faith. But you know what? The woman (and her husband) were nailed for refusing to sell a wedding cake, period. There’s a state law against discrimination, yes. But Klein, at the very least, could have asked, “Chocolate or vanilla?” and made the damned cake. By the way, in addition to the fines, Klein’s bakery went bankrupt since many of the lovely heterosexual brides had no interest in doing business with a bigot. Cry me a river.
EEOC Sues On Behalf of MTF Workers
So, a couple of years ago, the Equal Employment Opportunity Commission announced that Title VII of the Civil Rights Act of 1964 protected individuals against workplace bias based on gender stereotypes. Everyone was amazed and pleased by this development, because although courts had increasingly interpreted Title VII this way, here we had the enforcement arm of the federal government agreeing with that interpretation.
Now, the EEOC has put some teeth into its policy decision, suing two businesses for trans discrimination. One is a medical clinic in Florida. The other is a funeral home in Detroit. Both employers fired MTF women who transitioned during their employment.
The irony is that Title VII, the law that protects minorities from workplace discrimination, does not cover discrimination against gay men and lesbians unless that discrimination is tied to gender stereotyping. On the other hand, since trans bias is inherently based on gender stereotypes, Title VII is now seen as a strong legal weapon against transgender bias on the job.
How did this happen? It happened because Title VII is not just a few words in some law book. Title VII is the culmination of five decades of case law as court after court has added nuance and weight to this powerful statute. Sexual harassment, for example, is only illegal because courts have interpreted Title VII’s ban on “discrimination because of sex” to encompass such harassment. As for gender stereotypes, they were embraced by the Supreme Court itself in the late 1980s, ruling under Title VII that an accounting firm could not deny a partnership to a woman just because she did not conform to their standards of femininity.
Why am I harping on this? Because even though it’s nice that trans bias is somewhat covered under Title VII, we need to explicitly add sexual orientation and gender identity to Title VII’s list of protected workers. Forget the archaic half measures of ENDA. Indeed, many major gay organizations have already done so. Let’s fight instead to put GLBT workers under the wide umbrella of Title VII.
Panic Attack
I’m not sure what to think of California’s recently signed “gay panic defense” law, a statute that purports to outlaw the infamous strategy of blaming a gay victim for inciting violence by making an unwanted pass. Take out the charged reference to “gay panic,” and the law prohibits a person accused of assault from claiming that the attack was a response to a “nonforcible” gay or trans solicitation.
I haven’t encountered the gay panic defense recently, but if memory serves, the tactic generally involved an assertion that the gay person did more than just suggest a sexual act. Usually, if not always, the victim allegedly put a hand on the basher’s leg, or tried to kiss him, or something like that. In other words, the attention was claimed to be forced, which would not be covered by this new law. Even the despicable gay panic defense was never enough to absolve an attacker who launched an assault because another person announced that he was interested in a little something something, but made no physical move.
Hey, it’s not a bad thing, I guess. But I just wonder how lawyers and courts are going to define “nonforcible” in future cases.
And here’s an interesting development. Sure, it has nothing to do with GLBT news. In fact, it has nothing to do with news of any sort. It’s just that my wife Mel spent three hours trimming the hedge out front, and she asked me to sweep up all the leaves. Having done this before, I know that it’s really tedious. Plus, I informed her that I had to write this column, but she didn’t care. Somehow, she expected me to clean up the hedge trimmings and write a column, both in the same day. For those of you who are counting, that’s two things in one day.
So just this minute, a guy knocked on my door and asked if I needed yard work. Answer, yes!
When we first bought this house, I volunteered to trim the hedges. I figured we’d get an electric trimmer, which we did, and that it would be both easy and satisfying. It turns out that I was wrong. It’s hard. It hurts your arm after three minutes. And it’s not satisfying. It’s messy and tiresome and then, of course, you’re supposed to get rid of the leaves. Naturally, I relinquished the cumbersome duty and now I am reminded of my fecklessness every time Mel trims the hedges.
In my defense, this house is my first hedge house and, even though we’re in the middle of the city, I had images of suburban home owners trimming their hedges while drinking a beer and talking to their neighbors. Unfortunately, our hedges are nowhere near our neighbors, and you can’t trim and drink beer at the same time. All in all, the entire hedge scenario has been a lesson in erroneous assumptions. A life lesson, if you will. The main lesson, of course, is to marry an understanding woman with a sense of humor and stamina.
Is the Pope Catholic?
So, back to the news. The Catholics are going crazy, kicking people out of churches and schools for the heretical sin of getting married while gay. The oddest thing is that the Catholics don’t seem to mind if you’re gay, it’s just the marriage part that bugs them.
In Montana, two elderly men who have been together for over 30 years were informed that they could no longer take communion, thanks to their Seattle wedding. The men married in 2013, but a new priest arrived at their home parish and took them to task. The men were told that they could restore their privileges if they divorced, moved into separate housing, and apologized. Say again? There’s also a music director who has been fired from a Catholic church outside of Minneapolis after marrying his husband and a teacher kicked out of a Catholic girls school for getting pregnant with a same-sex partner.
Oh, I think there are more. But, really? What about the great new Pope with all his kind words about tolerance and not judging people? Aren’t these priests and school principals supposed to be following his lead?
Saucy Sisters
In unrelated news, have any of you read about Miss America, who was expelled from her sorority at Hofstra University last year for violating hazing rules? Kira Kazantsev told the people at Good Morning America that the whole thing was overblown, but that she regrets her role in subjecting her sorority sisters to scary pranks and forcing them to do menial tasks.
So far, so good. But elsewhere in the coverage of Miss Kazantsev’s bad behavior, an unnamed Hofstra grad said that the hazing was even worse at another unnamed sorority. According to the mystery woman, new pledges were forced to take off their underwear, sit on newspapers and watch lesbian porn. Anyone who betrayed an unnatural interest in the activities on screen was ridiculed and thrown out. The other girls were then obliged to perform oral sex on the senior members of the sorority.
Is it true? Who knows? But sometimes a good reporter has to risk her journalistic reputation in order to cover significant stories, even when a source is anonymous. And this is a story that I believe is important for Bay Times readers to consider. Yes, I’m breaking all the rules of ethical reporting. But some rules are made to be broken.
arostow@aol.com
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