By Ann Rostow–
Dreaming with Jim Comey
I dreamed that Mel and I were in my college dorm room with Jim Comey and we all wound up taking a nap because we were so very tired. There was something intimate about our relationship with the former FBI director—as if we had been through a battle together, and perhaps had another one ahead of us.
It was my first impeachment dream, but not the last, I think. And indeed, all of these characters belong in a surreal world. The lunatic President, raving about civil war and collapsing markets. The stone-faced Stephen Miller. The sly Mike Pence. The ponderous Attorney General and oily Secretary of State; heavy aging steakhouse men not quite as accomplished as they think that they should be. The manic clown lawyer, flashing from laughter to scowl, who at one point roped in the unconvincing husband and wife legal team of Joe Digenova and Victoria Toensing, planning to take them to Ukraine to represent “whistle blowers.” Perhaps Boris and Natasha were prepared to dish the dirt on Moose and Squirrel.
Quite honestly, I wonder if I might wake up a second time and find myself back in the innocent days post-Mueller, when official misconduct involved obstructing justice, but was protected by a convoluted interpretation of a Justice Department policy on whether or not you can indict a sitting president. Those were the days when impeachment was seen as a political charade, distracting from the forward-looking Democratic message. Even Mel and I, faithful politics addicts, grew weary of hearing Rachel provide the backstory on Oleg Deripaska yet again, and started switching over to NCIS reruns.
Now we’re back, glued to the TV like small children on a cartoon binge. Can anyone predict the developments ahead? No, but it’s sort of like watching those wilderness documentaries where a few members of the grazing herd are just starting to prick up their little heads and we can see a predator cheetah or two crouching silently in the high ground. Something’s about to happen and it’s not going to be pretty, folks.
We may root for the gazelle on NatGeo, but I’m counting on the House cats to take down their prey. How the Senate reacts will depend on public opinion and the scope of the President’s misdeeds. But unlike the Clinton case, when the defendant was highly popular and guilty of lying about a sexcapade, we know that Trump is roundly disliked and accused of serious misconduct; violating his oath of office, horse trading with taxpayer money and browbeating a country that depends on our goodwill to further his own deranged conspiracies. A decision in Trump’s favor will dominate the legacies of all Senators who cast such a vote, dimming whatever highlights once favored these otherwise successful politicians, and those who recognize this dilemma will think twice about doing so.
Watch Out for Falling Blocks
Meanwhile, back in GLBT world, an historic moment has arrived. It is time for oral arguments in our three hugely important Supreme Court lawsuits. Two hours are set aside for lawyers on both sides of two main arguments on the morning of October 8. (Two of the three cases are combined into a single legal issue.)
Both arguments revolve around Title VII of the Civil Rights Act of 1964, the federal statute that outlaws discrimination in the workplace on the basis of race, sex, and other factors. Those other factors don’t include sexual orientation or gender identity, but over time, many courts have interpreted the ban on sex discrimination to protect members of the GLBT community against workplace bias as well. On the 8th, the Court will first consider two cases that ask whether sexual orientation falls under the “sex” category, and in the second argument, consider a third case on whether transgender status is likewise protected under federal law.
Some might say that we have little to lose, since we are not technically included in the Civil Rights Act to begin with. But that attitude ignores the weight of court precedent, which has been piling up on our side of the legal seesaw to the point that we have nearly managed to include ourselves in Title VII just by winning case after case after case in lower courts. High Court rulings have also been useful.
For example, it was Antonin Scalia who wrote the opinion for a unanimous Court that same-sex harassment in the workplace violated Title VII’s ban on sex discrimination as long as it was based on sex. A few years before that, the justices ruled that Title VII’s sex protections meant that an employer could not impose gender stereotypes on his workers. That, of course, came in the case of the Price Waterhouse superstar, Ann Hopkins, denied partnership because of her masculine style.
These and other helpful precedents have been the building blocks of our legal progress surrounding Title VII. I believe that I can mix the metaphors of seesaw and building blocks because we can use the building blocks to weigh down the seesaw, leaving us riding high on the other side, the “saw” if you will, with the blocks on the “see.” Or should it be the other way around? Unfortunately, this kind of progress, built up over years, can be erased in a single decision by the U.S. Supreme Court, knocking the building blocks off of the “see” with the back of its hand, sending us and the “saw” crashing to the hard ground. Ouch!
I have no idea why I can’t be more serious right now about this massively important legal issue. As I’ve repeatedly ranted in the past, a High Court ruling that deliberately leaves gays and transpeople outside of the protections of our nation’s most powerful civil rights law would be a tremendous step backwards. Without a prompt reaction from a Democratic House and Senate and a Democratic administration, by enacting the Equality Act in early 2021, our community could effectively lose a couple of decades of progress.
Courts, increasingly conservative thanks to the fast pace of the Trump/McConnell judgeship conveyor belt, would be free to point to the nation’s highest authority as binding law requiring an antigay ruling in a host of GLBT-related cases. The new building blocks would sit on the “saw” until years down the road when we could finally push them off to the side and start bringing down the “see” once more.
Help me, someone. Editor?
How Did This Happen?
I think I’m just overloaded these days. Impeachment. Trump. The Title VII cases. Just a few years ago, on the eve of Hillary Clinton’s election to the presidency, the future seemed clear to the horizon. What was that trite line we heard over and over again after George HW Bush died? “Ceiling and visibility unlimited.” That was it. We speculated on whether Clinton would renominate Merrick Garland, or maybe go for someone younger and even more liberal! Why not?
Never in our wildest nightmares could we have anticipated a 5–4 conservative Court, an administration riddled with antigay ideologues, and an executive branch stripped of competence and experience both. We went from CAVU to cloudy with a chance of meatballs (CWACOM) in midair no less. Thanks, Jim Comey. Now please wake up and get out of my dream world.
The Equality Act, for the record, would add sexual orientation and gender to the text of several federal civil rights laws, including Title VII. One of the arguments that our opponents wield in court points out that the 1964 Congress had no intention of protecting GLBTs when it enacted the Civil Rights Law.
Indeed, the lawmakers only added “sex” to the list of protected groups in Title VII because they feared women of color would be treated better than white women after its passage. Our adversaries also note that Congress has not added sexual orientation or gender to the law in the ensuing half century or so, a clear sign that “sex” in Title VII should not encompass anything more that the simple distinction between male and female.
But, as our lawyers note, Title VII has evolved in myriad ways through court decisions and now extends far beyond the worldview of the mid-century Congress. Nor should any law stay petrified in the social and cultural attitudes of the distant past. As for the action or inaction of Congress, the whims and complexities of legislative debate cannot dictate the interpretation of statutory text. Nor should courts extrapolate from the fact that Congress may have added sexual orientation to a different law, while continuing to ignore our absence from Title VII and other statutes.
I’m not sure whether or not we’ll be able to listen to the oral arguments online or on CSpan, where other cases have sometimes been broadcast along with still pictures of this or that justice. Conventional wisdom says that you can’t predict an outcome by listening to oral arguments, and the justices will mainly be guided by dozens of outside legal briefs on both sides. Still, if we can listen in, it should be fascinating and instructive.
Real News
What else is new? I was checking out SCOTUSblog for information on the Title VII cases and I noticed that on October 7, the day before our arguments, the Court will consider the case of a Kansas man who murdered his wife, mother-in-law, and his two children after his wife left him for another woman. The man is claiming that Kansas law violates the Constitution by restricting the option of pleading insanity in some manner that I did not examine closely.
I’m sorry, but the insanity defense should apply to people who have no idea what they’re doing. Otherwise, anyone who murders someone could argue that they were insane at the time since murder is insane by its very nature. But my point was going to be that GLBT news lurks throughout the media.
On the other hand, I was just reading a story on Real Clear Politics about how GLBT issues have dropped off of cable news coverage in the Trump years while Google searches for gay material have surged during the same time period. I suppose that I believe the first part, because frankly, it’s hard to care about, let’s say, the Creating Change agenda, when the Western alliances are falling apart and a madman is running the country. I’m curious about the second part of the study, however, which includes a chart with a big uptick in searches. Why the fascination? Perhaps the cable news audience is wondering what’s up with the community since they haven’t seen an update lately.
Meanwhile, speaking of gay news coverage, you may have seen that Mayor Pete complained about the gay press the other day, saying he no longer bothers to read our beloved community media because he’s always accused of being “not gay enough” or “the wrong kind of gay.” Later, he kind of walked that back, telling the (mainstream) press that he was in a “grumpy” mood. I find that kind of adorable. He does have a teddy bear aspect. Personally, I’ve only had nice things to say about Pete, so I sort of resent implicitly being lumped in with his churlish critics elsewhere in the gay press.
Finally, I’ve reached the end of my column with a little room left, but not enough to launch into a serious new topic. Instead, let me discuss some recent TV commercials, beginning with the strange advertisement for cardboard boxes and packaging, sponsored by some weird organization that represents these materials. The ad shows a box hopping aboard trucks and trains in a courageous effort to complete delivery, and extols the essential utility of generic cardboard boxes. Do we really need a commercial for this? Who pays for such promotions, and to what end?
As for Liberty Mutual, I used to hate their commercials, premised on the idea that customers can get personalized coverage through Liberty Mutual even though you can make decisions about your car or home insurance with every other insurance company in existence. It’s like a grocery store advertising that you can select the items that you want at their store. You can do that at every store! Lately, however, I’ve grown to love the LIMU Emu and Doug, particularly the spot where both Doug and LIMU Emu’s wives are in the audience watching the two of them receive keys to the city. The whole concept takes silliness to the perfect extreme, a difficult achievement.
I see that I had plenty of room for a serious subject, after all. Oh well.
arostow@aol.com
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