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    Ann Rostow: Are We Going Down?

    By Ann Rostow–

    Are We Going Down?–

    Friends, I’m feeling a little sick to my stomach right now. I’ve rewritten the start of this column a few times because I can’t handle the possibility that we might lose the Masterpiece Cakeshop case. And yet, during oral arguments December 5, Justice Kennedy made a big point about “tolerance and acceptance,” two attributes that he feels are “essential to a free society.” According to Justice Kennedy, the state of Colorado’s anti-discrimination law that forces cake “artiste” Jack Phillips to serve everyone on an equal basis, gay or straight, “has neither been tolerant nor respectful of Mr. Phillip’s religious beliefs.”

    Was Kennedy just expressing a contrarian view? Sending a little shade Colorado’s way before rejoining Team GLBT? Or is he poised to undermine his legacy as the gay rights justice by ruling that anti-discrimination laws are riddled with gay exceptions? For the record, everyone agrees that racial bias in public accommodation can be outlawed regardless of anyone’s opinion or faith. The question here is whether or not sexual orientation discrimination deserves that same level of legal opprobrium. The answer, amazingly, might be no.

    It’s never a good idea to anticipate the Court’s decision based on oral arguments, but you know we all do it. I can’t help but look back to a time before the 2016 election, when the future of the Court seemed to present a choice between Merrick Garland and someone even more progressive. Would Hillary stick with Garland, we wondered? Or would she give us her own pick? Why not! And why not use some of her fresh political capital to nominate someone really progressive, and really young! 

    Instead we got Neil Gorsuch, and an aging judicial champion who might decide to cap his life’s work with a warm gesture of tolerance and acceptance. Much like our President implied that we might show a little compassion towards those on the white power side of the Charlottesville protests. 

    I intended to throw a few snide comments towards the insufferable David Brooks, who recently wrote that the gay men who wanted a wedding cake should have been “neighborly” rather than litigious, perhaps inviting Jack Phillips over to their house for dinner and a discussion of sexual orientation and faith, or something like that. Once again, for the record, Jack Phillips broke the law. His adversary is not the gay couple, who obviously went elsewhere for their wedding cake, but the state of Colorado! And once again, no gay couple wants to buy a cake from an unwilling vendor. But nor do any of us want vendors to be able to flout anti-discrimination laws at will, laws we struggled to achieve through the political process and want to see enforced. Is that “intolerant” of us, Justice Kennedy? I guess it might be.

    P.S. I just saw that CSPAN will play the audio of the oral arguments on Friday, December 8, at 5 pm Pacific.

    Houston, Everything’s Okay

    In other Supreme Court news, I was surprised when the justices decided not to intervene in that weird case out of Texas. Last June, the Texas Supreme Court implied that the extent of same-sex marriage rights remained an open question, allowing a lower state court to continue to grapple with the legitimacy of Houston’s employee benefits plan. That decision was appealed, but instead of slapping the Texas Court as the justices did to Arkansas and Alabama earlier this year, the Supremes declined to accept review. 

    The decision to sidestep review, I gather from legal experts, was likely due to the fact that the case is still in litigation and the Texas decision was not definitive. It’s as if someone made an interlocutory (mid-case) appeal to the Texas Supreme Court asking whether or not slavery was legal and the Court said it would be up to the lower court to determine the answer. No, the Court did not say slavery was legal. But what the hey? Why hedge to begin with?

    Here, by declining the review, the Supreme Court did not say that Texas “has the right to deny gay spousal benefit” (I’m talking to you, Daily Beast). Nor (hello, Newsweek) did they say that “same sex couples don’t get the same marriage benefits as heterosexuals in Texas.” Sloppy headlines like these were numerous, and even though the situation is somewhat complicated, there’s no excuse for incompetent editing.

    The bottom line is this: there’s simply no doubt that the Supreme Court will enforce the basics of marriage equality. Alabama tried to disallow a lesbian couple’s adoption from out of state, and Arkansas tried to delete a mother’s wife from their child’s birth certificate. In both cases, the High Court waved them off in no uncertain terms. There’s no way that the High Court would let a public employer ignore marriage equality, period. 

    The Hills Are Alive

    I’m not discussing Australia. You know why, don’t you? Australia has made a fool of me in the past, and I won’t fall for their shenanigans again! I suppose in my heart of hearts I do expect that Parliament will pass marriage equality in short order. And I suppose I also expect that they will do so without adding a set of onerous antigay amendments to the eventual bill. But I will believe it when I see it.

    Meanwhile, Mel and I have been watching Janet King on Acorn TV. Every week, we seem to discover another TV service. I’m waiting for our various TV bills to equal our mortgage. At any rate, Janet King is a lesbian prosecutor in Sydney, knee deep in rectifying public corruption and solving crimes. Put it on your list.

    I’m having trouble focusing on the many interesting GLBT developments of the week, given my obsession with Masterpiece Cakeshop. I’m annoyed that, instead of cautious optimism, I will have to suffer through months of fearful anxiety before this case is done. Plus, not only have I rewritten my column and fallen behind, but I’ve also had a couple of nips out of the Cognac bottle. I always drink when I encounter upsetting information. So, sue me. 


                  Call a lawyer and sue me, sue me, what can you do me? I love you. 

                  Give a holler and hate me, hate me, go ahead, hate me. I. Love. You.

    Here’s something from the news list to get us back on track. Did you read about the two men who took a photograph of themselves mooning at a temple in Thailand, put it on Instagram and got arrested? San Diego residents Joseph and Travis Dasilva, both 38, will have to pay a fine and will never be allowed back in Thailand. Was it worth it, guys?

    It’s kind of funny, I suppose. On the other hand, 38 is a little old for these kinds of hijinks. 

    Finally, I don’t know if it was the Cognac or what, but I just saw a news clip that said marriage had finally arrived in Australia! Yay! 

    But, it turns out that was Austria, not Australia. Fooled again! The Sound of Music Constitutional Court legalized same-sex marriage effective by January 1, 2019, making Austria the 25th country to offer equal marriage rights to gay and straight couples. I’m sure Australia will not be far behind. 

    Patience Rewarded

    A transgender professor, Rachel Tudor, has just picked up a cool million and change from the coffers of Southeastern Oklahoma State University, after five plus years of complaints and litigation. Tudor was first denied tenure based on her gender identity in 2009/2010. She complained, and she was again denied, this time ostensibly in retaliation.

    In 2015, Tudor’s case was picked up by the U.S. Department of Justice, which sued under Title VII of the Civil Rights Act of 1964. Title VII, as you know, bans discrimination in the workplace because of sex and other factors. Many courts, in turn, now believe that discrimination against GLBT men and women is a form of sex discrimination and is therefore illegal. Oh, and the Obama Administration felt the same way, which is why his Justice Department initiated a Title VII case against the school. Tudor, in turn, intervened to advance her own lawsuit.

    As you might imagine, however, the Trump administration reversed course and the Trump Justice Department backed out of the suit, leaving Rachel to pursue her case alone. Happily, in late November, a federal jury agreed that she had indeed suffered illegal discrimination, awarding her $1.16 million in damages.

    Meanwhile, the question of whether or not Title VII covers gays and/or transgender individuals remains perhaps the most important unresolved GLBT legal issue. We have a petition before the Supreme Court that asks whether or not a lesbian was unfairly fired from her job at a Georgia hospital under Title VII, but who knows whether or when the justices will take review. 

    Men at Work

    A Vanderbilt professor has just finished a study that suggests gay men are no longer earning less than straight men. Indeed, after years and years of falling continually short, for whatever reason, gay men now seem to earn about ten percent more than straight men. Of course, this is just one result, a paper that analyzed data from a “major federal survey in the U.S.,” but so what? You go, gay guy!

    I guess lesbians have always ranked a little ahead of our straight sisters, again for whatever reason. On the other hand, Ladies, I think we’re all making less than the men, regardless of sexual orientation. 

    Speaking of men and women, have you seen the campaign ad by the woman who’s running for Attorney General of Michigan? 

    “Who can you trust not to show you their penis in a professional setting” asks Dana Nessel, staring into the camera. 

    “Is it the candidate who doesn’t have a penis?” 

    “I’d say so.”

    I must admit, I’ve never had a naive view of powerful men. But these guys lately are even worse than I thought. They’re not just worse, they’re deluded. Heavy-set middle-aged blowhards imagining that attractive young women would actually find it sexy to watch them jerk off into a potted plant, or walk around the office in an open robe. I don’t think so! Weinstein? Have you looked in a mirror lately?

    That said, I think gay women have a more realistic view of men than our straight sisters, because we have so many gay male friends. We love them, but we know them. Horn dogs one and all. Why should the straight guys be any different? 

    Oh, and one more thing. What’s up with George H.W. Bush? How hard is it to retain a little dignity when you’re a former President of the United States and you’re pushing the century mark to boot? What’s with the hands? What’s with the “David Cop-a-feel” jokes? Is this a dementia symptom? Or is it just a last spurt of toxic masculinity/fun for a man who is beyond any kind of real punishment?

    Make It Stop!

    Mel has the TV on, and Sarah Huckabee Sanders’ monotone is audible in the distance as pleasant as fingernails on the blackboard. My God, what an odious human being—a holier than thou know it all, who condescends to professional journalists who have ten times her knowledge, ten times her ability, ten times her talent. It’s infuriating to watch or listen to.

    Indeed, it’s almost impossible to watch the news in general. Addicts that we are, we wind up clutching the remote control, poised to “mute” at the drop of a hat as soon as Trump appears. We’re also ready to mute a few others, and I often let the captions run, so we can see what’s going on without being subjected to the horror of their smug sanctimonious voices. 

    As for Trump, his vocabulary seems to be shrinking by the day, along with his grip on reality. I vacillate between thinking a weak Trump is better than a strong Pence, and thinking that even Pence is an acceptable price to pay for getting this abomination out of the White House. Right this second, I’m ready for Pence. And more Cognac.