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    Ann Rostow: The End of an Era

    By Ann Rostow–

    The End of an Era

    I just read over a dozen press releases from over a dozen civil rights groups bemoaning the nomination of Brett Kavanaugh to the High Court. In the rare moments that Mel and I can stomach cable news, we’re also seeing various Democrats urge all of us to the barricades in defense of justice. But why? Does anyone think a backup nominee would be better than Kavanaugh? The 2016 election is over. Trump is in the White House and once Justice Kennedy turned in his robe, the damage was already done. 

    Twenty years of a gay friendly Court have come to an end, and instead of looking forward to appellate litigation, we must now hope and pray that big gay civil rights cases stay away from the Supreme Court docket. Indeed, those prayers may be too late for the huge petition now sitting in the pending file—the appeal of our big Title VII victory before the full bench of the Second Circuit: the Zarda case.

    Like everyone else, I assumed Kennedy was good for at least another session; he hired clerks and allowed the traditional retirement announcement month of May to lapse without comment. Although our chance of winning the Senate in November had been slim, there was still a chance. And who knows? Maybe (I had thought) Kennedy was harboring an inner disgust with this repellent President, deciding to wait for his successor. The man was only 81. That’s nothing these days, in this administration and in this Congress where 80 is the new 60. My point is that our rose-colored glasses were ripped off our noses and ground into shards under the jackboots of our conservative foes, who laughed as they strode away.

    Now what? 

    Let’s get one thing straight, so to speak. Our marriages will not be cancelled. Nor will we return to a time when same-sex couples cannot wed. But that’s about all we can be sure of. Justice Kennedy wrote five gay rights opinions, and yet the man never decided whether or not sexual orientation bias is on par with sex discrimination or racism. If the answer is yes, then we are equal and no one can fire us without reason or put a cross around their neck and refuse to serve us. If the answer is no, then we are in limbo.

    Personally, I kept assuming that the definitive, hard hitting, clear legal guidelines were just around the corner—surely Kennedy would put some teeth into his next decision. But he never did. Gay couples deserve “dignity,” he wrote. They have the right to define their own concept of the “mystery of human life.” The status of marriage for same-sex couples reflects “both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” Huh? Say what? Never does Kennedy say whether or not sexual orientation defines a protected class like race or gender. Nowhere does Kennedy determine whether the high levels of judicial scrutiny that apply to race and sex bias should apply to cases of gay bias as well. 

    He ruled in our favor, but dangled his opinions by thin threads, always making sure to leave a wide margin in his jurisprudence for religious prejudice. Those who oppose marriage equality, Kennedy wrote in Obergefell, “reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

    In Masterpiece, he leaned even further towards the decent and honorable, albeit beleaguered, faith-based objectors, ruling that although it’s not nice to discriminate against gay customers, those who make the effort deserve a respectful hearing. It was a weird opinion, Masterpiece, and although legal analysts think we “won” the main contest, the decision is looking murkier by the day. Indeed, a few days after the Masterpiece ruling, the Court vacated a gay rights victory out of Washington state in a similar antigay wedding case, and asked the Washington Supreme Court to reconsider. Why?  

    I have no doubt that the Court conservatives who write the next GLBT opinions will not be vague or ambiguous. The questions that were repeatedly asked but never answered by Justice Kennedy will now be resolved by Kavanaugh and company. Is sexual orientation bias as nefarious as racial bias or sex discrimination? No. Is gay bias a form of (impermissible) sex discrimination? No. Are there times when a business can decline gay or lesbian customers? Absolutely. These questions are coming to the Court, and the answers are likely to be concise, specific, well written statements that usher in decades-long setbacks to the gay rights movement.

    So Close and Yet So Far Away

    Look at how far we’ve come. Back in 1996 when Romer v Evans was decided, gay activists were fighting, not for equality, but just for relief from bad things. Don’t bash us; don’t put us in jail for being in love; don’t fire us for no reason. Just ten years earlier, the Supreme Court had ruled that sodomy laws were constitutional. And then, just a decade later, we won a solid victory. Colorado voters had passed an amendment preemptively barring state or local gay rights laws in the future, but the High Court ruled that in passing such an amendment, the state made a whole class of people, as Kennedy put it, “a stranger to its laws.” The case was decided by a 6–3 majority on Equal Protection grounds using the lowest standard of review.

    The Romer majority came together eight years later when the same six justices ruled against the Texas sodomy law based on the Due Process clause. And here’s when the flowery mush machine got started. 

    Texas criminalized gay sodomy, but not straight sodomy, so you would think that the law would be struck on Equal Protection grounds. But an Equal Protection ruling would likely have to grapple with the question of what level of scrutiny a court must use to consider a case of unequal treatment of gay men or lesbians. 

    If you rule that gay bias doesn’t require extra scrutiny, you undermine gay civil rights litigation for years. If you invoke heightened scrutiny, you cut off the debate. Kennedy avoided what was then a tricky subject by skipping Equal Protection altogether, ruling instead that consensual and private gay sex was an important liberty that the government could not restrict without Due Process. Why? Well, again, it wasn’t obvious. 

    At the time, it didn’t seem to matter so much. In his ruling, Justice Kennedy managed to make one flat legal statement: “Bowers was not correct when it was decided, and it is not correct today,” he wrote, proving that he was indeed capable of definitive prose. Gone was the most destructive legal precedent in our adversaries’ arsenal. As long as it remained constitutional to outlaw gay sex, and by extension to criminalize committed gay relationships, gay advocates would never win significant legal victories. Now this obstacle was gone, and the path to equal rights seemed to stretch ahead. Recall that Mary Bonauto of Gay and Lesbian Advocates and Defenders had argued for marriage rights before the Massachusetts Supreme Judicial Court just three months prior, that Vermont had already begun civil unions, and that marriage was legal in the Netherlands, Belgium and large parts of Canada. 

    In late 2005 and early 2006, our six-justice gay rights majority collapsed to five. Dead was Rehnquist, retired was O’Connor, and replacing them were John Roberts and the arch-conservative Samuel Alito. At the same time, Americans were learning about marriage equality and changing their opinions of gay couples, in part thanks to Republican engineered public votes that amplified debate. After Obama got elected, we replaced two of our justices with younger versions; Sotomayor for Souter, Kagan for Stevens, but more importantly, the U.S. Department of Justice was suddenly on our side, writing briefs supporting gay rights, revamping agency guidelines in favor of equality and speaking out on our behalf

    After Obama was reelected came our twin marriage rulings, Windsor in 2013, which struck the federal Defense of Marriage Act and forced the government to recognize legal marriages from various states, and Obergefell in 2015, forbidding states from restricting marriage to heterosexual couples. And even though, yet again, Kennedy wrote the opinions, and Kennedy left the key legal questions unanswered, it didn’t seem to matter. Was the Obergefell decision in favor of marriage rights based on Equal Protection or Due Process? Both, sort of, but no one could say for sure. 

    We assumed the i’s would be dotted down the road; the t’s crossed in the near future. As November 2016 approached, we wondered whether Hillary Clinton would re-nominate Merrick Garland to the empty seat on the Supreme Court or pick someone younger and more liberal. Why not?!

    Because, yes, we could marry. But we could still get fired the next day. There were still clerks who didn’t want to marry us, bakers who didn’t want to make our wedding cakes and bureaucrats who didn’t want to put our wives on birth certificates. So, we still needed the High Court—just to make things clear. And maybe, with all due respect to Justice Kennedy, maybe Kagan or Ginsburg could write the next gay rights opinion? We were flying very high, my friends. Perhaps you remember, because it hasn’t even been two years. 

    Even after Trump’s victory, the new conservative justice, Neil Gorsuch, replaced the old conservative Antonin Scalia, so we maintained our 5–4 gay rights majority. Unless Kennedy retired or someone died, we would still survive. And meanwhile, we held open a narrow window to settle the outstanding legal issue of the gay rights movement, to put it succinctly: are we equal?

    Masterpiece Cakeshop could have answered the question by flatly saying that, just as faith cannot justify ignoring a law against race discrimination, nor can faith or other First Amendment claims justify ignoring a law against sexual orientation discrimination. How hard would that have been? Instead, we got some glop. A handful of opinions, dissents, concurrences and whathaveyou, centered on a technicality that vindicates the antigay baker, while spouting some anodyne gay rights language in the process. 

    As I mentioned, the Court sent a similar case back down the ladder, but let’s suppose the Washington Supreme Court again rules against the antigay florist, Barronelle Stutzman, who declined to do arrangements for the wedding of two men. And let’s imagine that again she petitions the Supreme Court—the Supreme Court owned by Roberts, Gorsuch, Alito, Thomas and Kavanaugh.

    It’s not hard to imagine that four or five of these men will accept review and make it clear that a florist or a baker has every right, not just to decline gay business, but to do so while violating a state law because gay rights laws should not be imposed on people against their will. They won’t really be “overturning” Masterpiece Cakeshop because Masterpiece doesn’t really stand for much. 

    As for the case of the skydiving instructor, Donald Zarda, who was fired from his job for being gay, we have all been excited about this case, hoping the High Court will accept it, pleased that we seemed to have gotten a major civil rights issue in under the wire, while our gay rights majority remained intact. Oops. 

    Zarda died base jumping, but his case, continued by his estate, will likely die at the hands of the Trump Court in a ruling that will etch a gay exception into High Court precedent for the foreseeable future. This Court will say explicitly that gays and lesbians are not covered by federal anti-discrimination laws. Given the chance, they will rule that transgender kids are not covered by Title IX. In the process, they might pause to clarify current Supreme Court caselaw to make clear that gender stereotyping is not always a violation of Title VII’s workplace protections. 

    The potential damage is off the charts. The only optimistic thought I can summon is itself derived from the shock of this completely unexpected turnaround, and it’s this: You never know what’s going to happen.