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    Ann Rostow: How About Those Justices!

    1-Ann RostowBy Ann Rostow

    How About Those Justices!

    Did you happen to notice last week that we were inundated with Super Bowl stories for days and days leading up to the Big Game? Then, on Sunday, the sports channels ran hours worth of anticipatory coverage that involved nothing but speculation and, let’s call a spade a spade, football blather.

    Here in the world of GLBT news, we ourselves are much like the pigskin fanatics, obsessed with Supreme Court goings on, searching for the smallest crumb of new information, digesting pages of commentary and analysis. In other words, we are immersing ourselves in Supreme Court and marriage equality blather, indifferent to the fact that the game is months away and the contours of the opinion remain unknowable despite our best efforts.

    For example, even though most of my last column was devoted to the High Court, and even though nothing much has transpired since then, I still have the desire to return to the subject and rehash whatever nonsense might occur to me. Is Tom Brady really the best quarterback of all time? Let’s talk about that for a couple of days.

    Sweet Home Alabama

    That said, I do have some non-SCOTUS news to impart.

    Before we start, let me correct a correction from last time around. Florida is indeed the 36th state to allow marriage between same-sex couples. I was right the first time, and wrong when I inexplicably corrected myself last week and said it was the 37th state.

    I know this now due to the happy, albeit odd, situation in Alabama, where a federal judge has overturned the state’s ban on marriage in two separate cases. The judge has put a hold on her decision until February 9, but state authorities have asked the U.S. Court of Appeals for the Eleventh Circuit to extend that stay until the appellate process is complete. But guess what? Florida also tried to get an extended stay, but failed, both before the Eleventh Circuit and before the Supreme Court. Here again, the Eleventh Circuit has rejected Alabama’s motion, and we can assume that the High Court will also turn thumbs down, at which point Alabama will become the 37th marriage equality state in short order.

    So what’s odd about Alabama? Well, I suppose it’s actually just business as usual for the Tide. First, the head of some Probate Judge association announced that judges would not have to issue marriage licenses for same-sex couples, even if the stay is denied, based on the notion that the right to marriage would be limited to the actual named plaintiffs in the cases. That, of course, would require every same-sex couple in the state to file their own individual federal lawsuits in order to marry, a somewhat onerous burden. At any rate, the ruling judge clarified her opinion to make it clear that indeed, the decision does apply to everyone.

    Second, the Attorney General wrote a ridiculous brief for the Eleventh Circuit, warning that allowing marriage would lead to mass confusion and complete chaos. I suppose the prospect of imminent doom and destruction had more credibility back in the day, but as we recently confirmed here in this very column, some 36 states now provide marriage equality. Would Alabama really stand alone as the outlier, where marriage paperwork could not be processed, where public officials resigned en masse, and where couples would be married one minute and become legal strangers in the next?

    Third, you may remember Roy Moore, the nutcase who defied a federal court order to dismantle a gigantic Ten Commandments monument in the state courthouse in 2003. Disturbingly, the man was recently elected Chief Justice of the state supreme court, a commentary on the state electorate that actually does make you wonder if marriage equality would spark rioting the streets. The other day, Moore wrote a letter to the governor, noting that federal courts have no jurisdiction over Alabama law, and pledging to ignore any mandate emerging from said judiciary.

    Hmmm. The Southern Poverty Law Center filed a complaint against Moore, charging that the man’s bizarre public outcry violates the state’s Canon of Judicial Ethics. Well, we’ll see. Mr. Moore was not able to hang onto the Decalogue. I don’t think he’ll be able to intercede successfully on behalf of Alabama’s antigay marriage amendment.

    Gay Rights Movement, Next Chapter

    A dozen years ago, before marriage was legalized in Massachusetts, marriage equality guru Evan Wolfson noted that “the backlash has started before we have lashed.” Now, again, the backlash against the lash we all expect from the High Court next June is well underway. Over a dozen state legislatures have proposed antigay bills, ranging from prison time for county clerks who conduct gay weddings, to cartes blanches for businesses to refuse gay customers.

    Yes, of course, just as we recognize Chief Justice Moore’s claptrap as empty rhetoric, we know that most of these patently unconstitutional bills will die on the vine. But not all of them. A large number of states already have religious freedom laws on the books, laws that require the state to provide a compelling justification for infringing on religious liberty. We’ve lived with those laws for some time now, but in the wake of the High Court’s Hobby Lobby decision, which also revolved around a religious freedom statute, they and their progeny are likely weapons for the future battles against discrimination.

    After all, the bakers and florists and photographers we’ve all been reading about were working in states that protected the GLBT community against discrimination in public accommodation. That’s why their recalcitrant attitudes were challenged in the first place. They were violating state law.

    Further, as Justice Alito wrote for the Hobby Lobby majority, religious freedom cannot be grounds for avoiding laws against discrimination. He was referring to federal law (which does not include us, of course) but nonetheless, state governments and agencies can easily argue that state anti-bias laws also trump the faith-based whims of rightwing wedding purveyors.

    But what about all the other states—most of the country—that do not explicitly protect our community from bigoted bakers? As far as I can tell, there we’re out of luck. Absent massive litigation, which I’m sure will be forthcoming, it will be hard to make a case against these bad actors. (That’s also why we are all hoping and praying that the High Court’s opinion next summer will articulate, not just a right to marry, but a right to equality in general.)

    I’ve seen articles from both gay and conservative pundits asking why in the world a gay couple can’t just go to a friendly baker? And indeed, who among us would want to do business with someone who grudgingly shoves a sloppy cake in our face and hates us? Particularly on our wedding day.

    The answer is that no one would want such a vendor, but that this is beside the point. Opportunities to discriminate against gay clientele would not be limited to bakers or photographers. They would extend to anyone and everyone who could concoct a religious excuse for turning us away, including the cab driver who dumped two Oregon lesbians off in the middle of the Interstate at one in the morning a year or so ago. (I’m thinking that even in a red state, he could be sued for endangerment or something, right? But you get my point.)

    No Swastika? No Lawsuit

    By the way, speaking of bakers and Oregon, one of these Christian operations just got hit with a $150,000 fine by the state labor bureau for denying service to two women in 2013. The baker, Sweet Cakes, was forced to close last year after all the hoopla. Keep in mind that even in states that (unlike Oregon) do not protect us from discrimination, we still have Yelp.

    Meanwhile, the latest twist on the scenario comes from a Denver baker, who refused to make two cakes; one that said “God hates gays,” and another that showed two stick figure men in a circle with an X on top. Many in the media are presenting this incident as a chance for thoughtful reflection, as if the baker’s refusal to make these cakes corresponds to another’s refusal to serve gays.

    In fact, the nasty cake slogans are something else entirely. That’s not a refusal to serve a particular subset of customers; it’s a refusal to make a specific product. Lesbians don’t walk into a bridal shop and sue because they didn’t have the exact dress they sought. Gay men don’t sue bakers because the cake maker refused to design an erect penis. Couples don’t sue innkeepers because they declined to plant rose bushes for the ceremony. All of these customers sued because they were flatly told no. No service, period. They couldn’t even buy the cake in the display window.

    By contrast, this baker didn’t say no to the customer. She said no to the God-awful special order product he requested. For the record, this same distinction applies to the theoretical Jewish baker who won’t bake a swastika cake, another sophomoric attempt to show “the other side of the coin” of discrimination.

    Tuesday Morning Quarterbacking

    Speaking of the Super Bowl, I can’t believe the crazy blame game that faults Pete Carroll and his offensive coordinator for trying a pass instead of a run in the final seconds. Now I’m reading that some people think the unlucky play call was a deliberate attempt to shift glory from the controversial running back to the all-American star quarterback by letting the quarterback pass for the win. Are they out of their minds?

    Do these people think a fluke interception at the one-yard line was a likely possibility that Carroll should have taken into account? It was second down with 26 seconds left. It wasn’t the last play of the game. Carroll had a time out, and time for two rushes and one pass. One of the rushes should come on fourth down if necessary, because otherwise it would have eaten up too much clock. So the question was not do you run or pass. It was do you pass on second down or third down? Plus, the Patriots were set up in a run defense. Hello?

    I’m mentioning this not out of an interest in football or the Super Bowl, but more out of astonishment at the lengths to which the media can second-guess our leaders in hindsight (I’m referring to any leader in any context) while remaining perfectly oblivious to the situation that the leader faced in real time.

    Moving on, it’s interesting that the U.S. Court of Appeals for the Eighth Circuit has gone ahead and issued a timetable for the appeal of marriage cases out of South Dakota, Arkansas and Missouri. Oral arguments are set for May 11, approximately six weeks before the High Court will decide the question once and or all.

    Let’s just say that it would not have been a surprise if the Eighth Circuit had put these appeals on hold pending the High Court review, much as our other challenges to the Defense of Marriage Act were shelved during consideration of the Windsor case. Maybe the Eighth Circuit wants to make its own opinion known before the justices release their final pronouncement.

    Speaking of the Eighth Circuit, not the most progressive appellate courts in the country, I just came across a ruling against a lactating mother, who was effectively fired (forced to “resign”) because she was not able to pump at work. The High Court recently refused to review the case, leaving in place the Eighth Circuit’s decision. Among other things, the appellate panel noted that the problems of lactating on the job did not amount to impermissible sex discrimination because men also have the ability to lactate.

    Yes you read that right! I got the information from an ACLU press release. The panel also decided that a supervisor’s suggestion that the woman “go home and be with your babies,” was also not sex discrimination, but was a neutral remark that could have been directed just as easily to a new father. Really? Maybe to a new lactating father I suppose. At any rate, that’s the Eighth Circuit.