Recent Comments

    Ann Rostow: High Court Takes Narrow View of Latest Gay Wedding Case

    By Ann Rostow–

    High Court Takes Narrow View of Latest Gay Wedding Case

    Because we love Supreme Court cases—the nuances of constitutional interpretation, the underlying story arc of the litigation at hand, the politics of the specific subject matter, the history of the lawsuit and its travels through the system, the personalities involved, the legal precedents in play, the whole panorama of the contest!—and, because we love the drama of the High Court, we are (sort of) happy to announce that we have another Big Gay Case on the docket.

    You may remember that San Francisco Bay Times legal experts predicted the Court would accept review of Christian website designer Lorie Smith’s case against the state of Colorado. Smith had decided to expand her business to include wedding websites, but sued preemptively to ensure that she would not have to serve gay or lesbian clients. After all, as we recall from the Masterpiece Cakeshop wedding cake lawsuit, Colorado forbids GLBT-discrimination in public accommodation. But in a 2–1 decision last year, the U.S. Court of Appeals for the Tenth Circuit told Smith she would have to provide services to all couples without a gay exception. (Cue: sad trombone.)

    Smith appealed to the Supreme Court, and on Tuesday, February 22, the justices accepted review, but limited their inquiry to the following question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” 

    Odd, in my view, that the threshold question of whether Smith is a service provider or an artist seems to have been answered without argument. If Smith is an “artist,” it’s hard to enforce anti-discrimination laws against her creative output without violating the First Amendment. If, on the other hand, she’s running a business that may involve an artistic touch, but is not otherwise considered “art,” then the balance shifts to the civil rights of her clients. I’m going to assume, therefore, that the conservative side of the Court has decided how it will rule on Smith’s case and has constructed the playing field to suit its strategy.

    But it’s also odd that by limiting the question to this softball, the Court has defused what could have been an exceedingly dangerous case for us. The Masterpiece baker also argued that his cake was a piece of art, worthy of First Amendment protection on those grounds, but that was a side issue to him. His basic complaint was that his Christian faith compelled him to avoid participating in a same-sex wedding, and thanks to the Court’s dithering, his case resulted in a messy 2018 decision that allows everyone to take from it what they will.

    Last year, the Court declined to review a long-running case out of Washington, where a Christian florist had nixed a gay wedding gig and lost her case before the state’s high court. And the Court also managed to sidestep the core contest between gay rights and religion when it ruled against the city of Philadelphia in its battle with an anti-gay Catholic foster care organization. That ruling was so narrow that the question of whether faith trumps gay civil rights was again left unanswered.

    So why take this case, but focus on a non-religious detail? Is it part of a long game, designed to chip away at the power of civil rights laws? Or are the centrist justices trying to avoid the religious showdown that could set gay rights back a generation on their watch? 

    At least I won’t have to repeatedly look up the spelling for “Lorie Smith.” That Washington florist was a nightmare. Once more, for old time’s sake, her name was Barronelle Stutzman.

    Generation Q?

    Our community is growing, Gallup tells us, with 7.1 percent of Americans in 2021 identifying as “lesbian, gay, bisexual, transgender, or other.” The “other” category includes those who identify as “queer” or some other gay-sounding adjective as far as I can tell. This percentage is up from 5.6 percent in 2020, and 3.5 percent in 2012 when the annual survey began.

    Part of the upswing is due to aging. About 1 percent of the silent generation identifies as GLBT, 2.6 percent of boomers, 4.2 percent of Gen X, 10.5 percent of Millennials, and a whopping 20.8 percent of Gen Z. The Gen Z cohort in the poll includes all those born between 1997 and 2003, the adult Gen Z-ers if you will, so you can just imagine how large the GLBTLMNOP community will be in a decade or so when the rest of them grow up. 

    In fact, I think we can assume that the trend also suggests a general blurring of gender stereotypes, which will eventually defy attempts to put everyone in a specific category. The older generations’ numbers are definitely tamped down by years in the closet, but the Gen Z numbers may be inflated by a resistance to being filed under “straight and narrow.”

    The vast majority of our 7.1 percent, some 57 percent of us, are bisexual. Fourteen percent are lesbians, 21 percent are gay, 10 percent are transgender, and four percent are “other.” Since people were allowed to pick more than one thing, these numbers are basically useless. But nonetheless, there they are for your crunching pleasure. Gallup interviewed some 12,000 adults for this survey.

    I was about to move on, but I got a little hooked on Gallup, and was reading about an earlier poll, taken in May, 2021, that showed American support for same-sex marriage at a record 70 percent, including a majority of Republicans. This compares with 27 percent in 1996, when this question first arrived on the company’s Values and Beliefs poll. 

    I know that’s a quarter of a century, but it’s still a tremendous reversal of public opinion, and a shift that was driven by one thing: people coming out of the closet. It’s one thing to recoil at the idea of a foreign sexual orientation. It’s another to reject your sister or your grandson.  

    The Children!

    Before we continue, what did you think of the Super Bowl half time show? I liked some of it and disliked other parts. A lot of rap is compelling, but I hate when it’s monotone. I feel the same about one-note country western songs. That said, my indifference was nothing compared to our friends at One Million Moms. 

    “The choreography included risqué hip movements, which were on full display during the performance,” they complained. “As if that wasn’t enough vulgarity, crotch-grabbing and gyrating all over the stage platform were also included—all while children watched … .

    “How are children supposed to learn about respect and dignity when this is what they see on one of the world’s biggest stages,” the Moms despaired?

    “So many other musical artists could have performed and given a much cleaner and more appropriate performance.”

    Whither Lawrence Welk and Glen Campbell? Where are the Trapp Family Singers of the 21st century? Why couldn’t the Super Bowl have featured the Wiggles?

    As much as we enjoy making fun of the ludicrous press releases that emanate from this American Family Association offshoot (which, I suspect, is a small handful of individuals rather than a million moms) it feels these days as if One Million Moms has been put in charge of state legislative agendas throughout the country. From book banning, to blockades on transgender athletes in public schools, to the latest collection of “parents’ rights” type bills that ban discussion of sexuality and gender in the classroom, we are taking an unexpectedly sharp right turn post-Trump—albeit Trump inspired. 

    I have an image of a million Stepford-type Borg women, all dominated by a super Mom whose head descends, a la Star Trek, to snap into her lower body when she needs to mobilize. The women mumble in low voices as they meander through a vast auditorium, lined with large screens. “Vulgar,” “Grotesque,” “Sexual,” “Sleazy,” and then, as the head and torso begin to merge, so do their chants. “Mom,” “Mom,” “Mom,” the chorus grows as the head and body come together and the Millionth Mom raises a hand to still the crowd. 

    “Behold the depravity of our world!” she cries, gesturing to the screens where images of a Disney movie, a Pepsi commercial, and a National Geographic documentary on lemurs alternate in sequence. “Go forth in battle!” 

    The Moms fall into step and the hall is soon empty.

    All The World’s a Stage

    As I’ve mentioned before, in recent years, I’ve stopped reacting to anti-gay state legislative proposals because so few of them ever actually made it into law. Instead, they went in and out of this or that committee, creating headlines and debate, but in the end, the whole political pageant was full of sound and fury, signifying nothing. Why, I asked myself, must I devote hours of research and write laborious recaps issue after issue, only to arrive at the end of the session with all the nasty bills shelved by some veteran committee chair who knew there was no upside in actual passage. 

    This is changing. Bad things are actually happening and bad governors are whipping out their pens. First, we’ve passed ten laws banning transgender athletes from competing on the team that matches their gender. Some of these only restrict transgender women and girls, but others ironically apply to transgender men and boys—who in theory could be a year or so into hormone therapy but still forced to play for the girl’s wrestling team.

    Now we are facing a slew of parental rights bills, although most of the attention is focused on the versions making their way through the Florida legislature. Called the “Parental Rights in Education Act,” one version is heading to the House floor as this issue goes to press, and the Senate version is on its way through a couple of committees. So, there’s a ways to go here. The two bills have to pass their chambers, be reconciled, and then pass both chambers in their final form. Normally, as I said, I’d just assume that the bill will eventually be stymied at some point during this whole procedure, particularly since it has some very strong opposition. But these days, who the hell knows? The session technically ends March 11, but we’ve seen these dates extended in the past.

    The gist of this measure says that public schools cannot “encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.” In fact, the current draft is even more insidious. In vague language, it compels teachers and administrators to tell parents about anything they learn from students that might affect the students “health or well-being.” In other words, it forbids them from keeping the confidence of a student who comes out to them in private.

    “A school district may not adopt procedures or student support forms that prohibit school district personnel from notifying a parent about his or her student’s mental, emotional, or physical health or well-being, or a change in related services or monitoring, or that encourage or have the effect of encouraging a student to withhold from a parent such information.” Sound innocuous? It’s not. 

    A recent amendment gave the school a six-week deadline to get the parents involved in a student’s situation. On the other hand, one of the Democrats proposed an amendment that would allow students to sue the schools for emotional distress if one of these forced confrontations with parents were to turn out badly.  

    According to Freedom for All Americans, conservatives have filed over 170 anti-GLBT bills in 2022 alone, normally the kind of overly broad information I’d skip (what bills? serious bills?) but given today’s environment, a number worth knowing. 

    And it’s not just the anti-GLBT bills we have to fear. It’s the book banning, the attacks on teaching about race, history, and slavery, and obviously the anti-abortion laws. It’s all of this hateful meanness sinking into the cracks and gaps that Trump and his followers have gouged out of our society. 

    But surely, we can turn this around. Paging Gen Z! 

    arostow@aol.com

    Published on February 24, 2022