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    Ann Rostow: Fait Accompli

    By Ann Rostow

    Fait Accompli

    Here’s what I think about Neil Gorsuch. Merrick Garland unfortunately is history and we’re not going to continually block Trump’s nominee for four years. We could do worse than Gorsuch, ergo we shouldn’t waste our limited ammunition and energy on a big campaign against him. I gather from the failing New York Times that it will be a close call to get Gorsuch sworn in before the last oral arguments of this session, but by no means impossible. The High Court hears arguments through the end of April, and Gorsuch must hear the arguments in order to vote on a case.

    With this in mind, he might make it through in time to consider a separation of church and state case out of Missouri, due for arguments April 19. Missouri’s strict laws against mixing church and state are such that a Lutheran church preschool was considered ineligible to participate in a state program that created playground materials from recycled tires. It sounds innocuous enough, but when a state program saves a church a thousand bucks or whatever it costs to resurface a playground, the state is effectively handing over that sum in cash.

    Why does this matter? Because Neil Gorsuch is known to have a soft spot for religious freedom. The church in this case argues that the state does not favor a particular religion by handing over some old rubber. In addition, it says it is being unfairly barred from the state program in violation of the Equal Protection Clause. We’ll see about all this, but it’s worrisome that Gorsuch might have a say in a case that seems, on the surface (drum roll), to favor the church. After all, to play devil’s advocate, recycling a few tires and helping out the children doesn’t ring the same bells that we hear when a giant Ten Commandments monument appears in a public courthouse. But it arguably violates the First Amendment all the same.

    As a rule, I still dislike Missouri based on my status as the wife of a Kansas Jayhawk fan (please enjoy our journey to the national championship). Members of our family have been known to drive over state lines to avoid making purchases in the “slaver” state. But I support Missouri in this context.

    Waiting for Hively

    Meanwhile, we have yet another Title VII case out of the federal appellate courts, this time a knock down from the 11th Circuit, where a divided three-judge panel ruled that sexual orientation discrimination is not outlawed under Title VII of the Civil Rights Act of 1964, the stature governing bias in the workplace. The panel did say that lesbian hospital security guard Jameka Evans can pursue a different claim under Title VII, to wit that she was a victim of gender stereotyping, which is considered a variety of sex discrimination. Evans says she was harassed not just for being gay, but also for being butch, and ironically the latter is actionable while the former is not.

    (And guess who wrote the panel decision? Speaking of “doing worse than Neil Gorsuch,” it was none other than antigay William Pryor, one of scariest individuals on Trump’s Supreme Court short list.)

    We’ve rehashed this Title VII irony several times before, and indeed the full bench of the Seventh Circuit is poised, we hope, to iron out the discrepancies in the case of Indiana community college teacher Kimberly Hively. Last summer, the three-judge panel in her case expressed frustration with conflicting precedents that obliged the group to recognize the claim of an employee who is mistreated due to his or her gender style, while at the same time ignoring an employee who faces gay bias. In other words, an effeminate straight man might be able to sue for discrimination under Title VII, while a masculine gay man could not. If gender stereotyping is illegal, asked the panel—which was bound by precedent to rule against the gay bias claim—then why isn’t being heterosexual considered the ultimate gender stereotype? Why isn’t a gay man inherently facing the stereotype of how a “real man” behaves? Why does he have to lisp, swish or sing show tunes in the office in order to (perhaps) be protected under federal law?

    On November 30, the full Seventh Circuit heard arguments in the Hively review, and although there are several other Title VII cases flowing through the federal bloodstream, the Hively case is the biggest. Make no mistake, this is a huge issue facing the GLBT community, one that has been overshadowed by marriage equality, but which is now in the spotlight. Keep in mind as well that the definition of “discrimination because of sex” under Title VII is taken into consideration by other courts when dealing with Title IX of the Education Amendments, the law that protects Americans against sex discrimination in public schools and colleges.

    Lock Him Up!

    So, I just read that Ellen dislocated her finger in a “wine accident” and Portia had to take her to the UCLA emergency room where the medical staff snapped it back into place. It seems our favorite talk show host tripped on the front stairs coming home from a party while carrying two glasses of wine and fell into the door. Been there, done that. Except for the part about falling.

    In truth, I’ve developed a little kleptomania problem over the years. There was a time when I was adamantly opposed to even taking a towel from a hotel, but now we’ve got a collection of purloined items. Tiny coffee spoons, ashtrays, napkins, the house is littered with contraband, and high on the list are glasses from bars, restaurants or parties that somehow traveled with us into the car and eventually into the cabinet. Oh, don’t worry. I was never the driver. Like Ellen, I’m the one who carries the glasses. Plus, they’re usually empty by the time we get home.

    Moving on, have you read about the conservative Oklahoma lawmaker caught with his pants down in a motel outside Norman? This slime ball is a real piece of work, my friends. Elected to the state senate in 2010, Ralph Shortey is married to his “high school sweetheart,” has three children, and tells everyone he was torn between business and missionary work. Gag me. He now faces three felony charges for hiring an underage 17-year-old boy for sex, and taking him to the Super 8 in Moore for a marijuana-fueled tryst. The kid is a minor under Oklahoma law, and there’s also an added charge for hiring a prostitute within 1,000 feet of a church—although I think most places in Oklahoma are within 1,000 feet of a church, particularly in Moore, which is famous for having the deadliest tornados in the country.

    Check out the photos of this unattractive lumbering lug nut and linger on the one where he’s fondling a rifle and a bunch of other guns. What a dumb fool. Did I mention he was state chair of Trump’s primary campaign? But, of course, he was! Oh, and the FBI are looking into his activities so he could face federal charges.

    Buzz Kill

    The Internet of Things includes a vibrator that can be activated through a Bluetooth app on your phone. I read the other day that the makers of We-Vibe were obliged to shell out $3.7 million to a class of customers whose personal information was captured through the device. To top it off, the We-Vibe is vulnerable to hacking, so a third party can conceivably take remote control over your vibrator and do whatever. Maybe come to a sudden stop without notice.

    I’m not a huge privacy nut. I figure that anything you write or post is public knowledge, including search parameters. But I’m increasingly irritated when I search something at random and spend the next four months fending off advertisements. Mel and I went to the Solheim Cup outside of Denver nearly two years ago and I’m still getting notices of great motel deals in Colorado. I searched for a mattress late last year and have been inundated with mattress ads ever since. Homeaway wants me to go to Croatia. Easy Jet wants me to fly around Europe. Budget wants me to rent cars in Hartford. Either stop or figure out that I’m not going to Croatia, the trip to Denver is over, and I’ve already rented the car in Hartford. And Easy Jet? I live in Austin, Texas, so I’m not interested in your Paris to Lisbon deal of the week.

    And speaking of Europe, how is it that Norway is the happiest place on Earth? Really? I’ve never been to Norway, but I see from the map that it is very far north, and likely to have very long cold winters. How would those conditions be conducive to happiness? I suppose it has something to do with “hygge,” the Danish idea of coziness, like when everyone sits around in a comfortable den by the fire, drinking hot grog and reading 19th Century novels. That does sound nice. Now that I think about it, there’s nothing better than being safe and warm inside during a snowstorm or a torrential downpour. On the other hand, an 80-degree day on the golf course in February is nothing to complain about.

    When We Revise

    For the record, I eventually watched one episode of When We Rise, the gay rights docudrama that recently aired on ABC, specifically the one that covered 1992 to 2006. I was covering the GLBT community in the gay press those years, specializing in marriage equality well before it was a thing. Let’s just say that the people who wrote the TV show did not operate in my universe.

    When the actual history of the gay rights movement is written, and let’s give it a little time, the landmarks of those years will include the Hawaii case that launched marriage equality, the Texas case that led the High Court to overturn sodomy laws, Vermont civil unions, the Massachusetts case that legalized marriage for the first time in the United States, the two-pronged political fights first against antigay state laws and then against antigay state referendums. The show featured none of these events.

    The Prop 8 case did not lead to marriage rights. Equality was fought for and won by the lawyers at GLAD, Lambda, NCLR and the ACLU, first through the Windsor case, and then through the myriad federal cases that led to Obergefell. Indeed, the Prop 8 case was ill advised and could have blown our entire legal strategy through the well-meaning, but naive, efforts of celebrity lawyers Boies and Olson. I suppose I can’t call When We Rise revisionist history, because as yet we don’t have a deep articulation of our actual history to revise. But the “docu” part of the docudrama was ludicrous nonetheless.

    Screen Shots

    I refuse to discuss state legislative news this week. I am waiting to evaluate these sessions once time runs out, essentially burying my head in the sand and hoping everything will turn out okay in the end. You may have read, for example, that the Texas senate passed a draconian bathroom bill. That’s true, but I still hope the house will let it die in some committee. I know it’s Texas, but we have a sane speaker of the house, and we are relying on him to save us from all manner of bad ideas.

    It occurs to me, as I watch TV with the sound off while writing, that Sean Spicer’s features are all clumped together in the middle of a fairly large facial area. His mouth is up close, his eyes are jammed together near the bridge of his nose and his nostrils are squished in. Also, his forehead is a mile long and two miles wide so he looks weird. To make it worse, he is often obliged to scrunch everything even more together as he searches for the next excuse. I know this is unkind, and I sort of feel sorry for Sean Spicer, but he has made his bed, don’t you agree?

    Also, speaking of people on my silent TV screen, I went to first through third grade with Senator Sheldon Whitehouse. His best friend was named Jimmy Hurd, and they did everything together. I liked them. I was president of the popular Mama Googoo club, which I myself founded, and I recall that I graciously allowed Sheldon and Jimmy to join at an entry level. The levels were color coded.