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    Ann Rostow: Humble Opinions

    By Ann Rostow–

    Humble Opinions

    I don’t know what to make of the U.S. Supreme Court, which just ducked responsibility for deciding whether or not partisan gerrymandering is constitutional. In two recent cases, the justices ruled without deciding if you will, sending one case back on a matter of standing, and leaving the other case alone with an unsigned paragraph of explanation. A few days later, the Court slid past the question of when and how an arrest violates Free Speech rights in the case of a civic gadfly in Florida who was arrested while bloviating at a council meeting. The Court ruled that the arrest was unconstitutional in this particular instance, but offered no legal guidelines for the future.

    And, of course, I wouldn’t have noticed were it not for Masterpiece Cakeshop v Colorado, the confusing opinion that blamed Colorado commissioners for not respecting a baker’s faith during the investigation of whether or not he could be allowed to violate state law against gay discrimination. Instead of ruling decisively that there is no First Amendment exception to civil rights laws in our country, the majority chastised the commissioners, and ruled that baker Jack Phillips had not been given fair treatment. Justice Kennedy’s opinion went on, however, to bolster the general rule in favor of civil rights in his usual gauzy manner, leaving observers and analysts scratching their heads. 

    Why is the Roberts Court so hesitant to act? We all remember the Chief Justice pledging to “call balls and strikes” during his confirmation hearing. Yet his Court seems to prefer the third and fourth options, “not sure” and “maybe.” I blame Roberts rather than Kennedy because part of his job is to seek consensus and clarity. He’s the leader. Why take cases with unanswered legal questions, only to leave them hanging? 

    We Won the Cake Case, Sort Of

    The Court has another two weeks to go this session, and the justices have yet to take action on the Arlene’s Flowers v Washington petition, a case similar to Masterpiece, which (obviously) involves an antigay florist rather than a baker. Will the Court accept review of Arlene’s Flowers in order to rule decisively? Probably not, since they could have easily ruled decisively in Jack Phillips’ case. Will they duck review? I’m guessing, um, maybe.

    And where does this leave us after all is said and done? Well, it leads us back to the basic gist of Justice Kennedy’s opinion in Masterpiece: civil rights laws are not subject to religious loopholes as a rule. That was the takeaway, for example, of an appellate court in Arizona that was waiting for the Masterpiece decision before just now ruling on another case of gay wedding-phobia from a Christian business.

    In the Arizona matter, a stationery store wanted to know in advance if it had the right to refuse gay wedding clientele on religious grounds in violation of a Phoenix gay rights ordinance. I’m not sure how this case got filed, since normally American courts do not allow for hypothetical lawsuits, but they got around that somehow and lost round one at the lower court. A week or so after digesting the Masterpiece opinion, the state appellate court agreed, citing Justice Kennedy’s majority.

    “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” Kennedy wrote earlier this month. “For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” 

    So yes, as the Arizona appellate judges concluded, Masterpiece stands for the proposition that gay customers are as worthy of respect as any other protected minority. What I hate about Kennedy’s opinions are the little hedges. “And in some instances must.” What instances? Why not “in most instances?” I know I belabored the topic of Kennedy wishy-washy-ness in the last issue, so I will try and wrench myself away, even though there’s a lot of meat left on that bone. “Gay couples cannot be treated … as inferior.” Why not just say that gay couples must be treated equally? And why does he constantly nod his head towards the “deeply felt faith” of religious Americans, as if gay bashing is an understandable tenet of Christianity? It’s not!

    I’ll stop. 

    Rule Britannia

    I’m glad to report that the Queen’s cousin, Lord Ivar Mountbatten, is planning to marry his partner, James Coyle, in late June. Acting on a suggestion from his three daughters, Mountbatten’s ex-wife Penny will give him away. I gather that everyone gets along famously!

    It’s actually a very uplifting story. Penny Mountbatten told the press that her ex-husband has changed dramatically for the better since coming out, and is much more relaxed. She got along with James Coyle immediately, press reports said, and indeed “everyone” in the royal family likes him. The men did not have a formal wedding proposal, but concluded that they would marry “in acceptance of this great love,” Lord Mountbatten said.

    And yes, I’m still in my anglophile mood, watching Masterpiece Theater’s old episodes of Poldark or Downton Abbey, and casting Midsomer Murders off Netflix. We just watched Man in the Orange Shirt, the story of a doomed gay relationship in mid 20th Century England and the happy ending experienced by the man’s gay grandson. And I’m reading a sex-drenched account of gay London in the years just before the onslaught of AIDS. The upshot of all this consumption of British culture is that I rooted for the English soccer team in my quadrennial attempt to gin up a little excitement for the World Cup. 

    I also root for France (I’m a Francophile as well) and Mexico, although Mexico has already gotten into trouble for allowing its fans to yell “puto” at the goaltenders of opposing teams. Mexico seems to be the only team with this problem, which is remedied by a game stoppage, followed by a stern announcement on the public-address system. I guess that’s better than nothing. But why the infantile gay slurs, amigos?   

    After that, we root for the Netherlands and Germany. And then we’re for the underdog or the prettiest uniforms or who the heck cares; it’s a boring game, anyway. Ooops (hand over my mouth), I said it! Soccer is dull. I prefer real football, even as it sends its battered athletes into senescence and an early death. I prefer golf, even as its stars hang out with Trump and vote Republican. I can’t deny it. 

    Bermuda is Back!

    I think it’s safe to go back to Bermuda, where the high court reinstated the right to marry after the parliament had replaced it with a domestic partnership. I guess there could still be an appeal, but really? The island, a British Overseas Territory, found itself steeped in controversy after its government reversed court-ordered equality. Recently, dozens of Bermuda companies have put their names on a public list of gay friendly businesses in support of the restoration of the right to marry.  And please don’t ask me why parliament had the power to reverse a court ruling to begin with and/or why they could go back and do it again if they wanted to.

    On an unrelated subject, have you ever watched YouTube videos of people scrunching and filing and polishing tin foil until they end up with a perfect shiny ball? It’s sort of fascinating. But it does make you wonder who comes up with these ideas and why does one thing go viral while another lands with a thud? 

    That last subject, as you can imagine, emerged from a procrastination session, during which I encountered several interesting topics including the discovery of a First Century burial ground in Denmark that may well be the site of a massive and violent battle, hitherto unmentioned in the history books. Do you think that fifteen hundred years from now, everyone will have forgotten World War II? Oh, I can hear you mumbling that no one will be around in fifteen hundred years, but I think civilization will still exist on Earth. 

    Sometimes I admit to myself that, selfishly, I really don’t care what happens after 2050, although I do want my grandchildren to be happy. The other night, one of them accidentally threw another one towards the bed, but misjudged the heave and sent him to the Emergency Room instead. Actually, maybe the grandchildren won’t make it that much longer than me. 


    Once again, Seattle-based U.S. District Court Judge Marsha Pechman has slapped the Trump administration, denying a stay in one of the transgender military cases and therefore helping to keep transgender troops in action while litigation continues. Trump has tried desperately to make good on his bizarre and inexplicable plan to oust all transgender men and women from the U.S. military. But the federal courts have blocked him at every turn. I think there are three or four cases at the moment, including the West Coast action presided over by Pechman. “The status quo shall remain ‘steady as she goes,’ and the preliminary injunction shall remain in full force and effect nationwide,” Pechman wrote.

    There are other GLBT cases, of course. A gay Title VII case continues at the U.S. Court of Appeals for the Eighth Circuit, and I may have mentioned last time around that Zarda, our gay Title VII victory before the full Second Circuit, has been appealed to the High Court. (I love that name!)

    The Court already declined a different Title VII case this session, refusing to review the Eleventh Circuit’s thumbs down to a lesbian security guard who said she was wrongfully terminated for her sexual orientation. As you probably know, our community advocates are hoping that the High Court will agree that Title VII’s ban on “sex discrimination” in the workplace inherently includes a ban on “sexual orientation discrimination,” even though the 1964 Congress did not envision such an interpretation at the time. 

    Obviously, when the Court refused to review the Eleventh Circuit case, they were leaving current law intact. But unlike the Eleventh Circuit, the Second Circuit ruled in our favor, almost forcing the justices to take review. Letting the Zarda ruling stand would uphold a new definition of sex discrimination throughout federal law. It would be nice, but I’m guessing it won’t happen. Keep an eye or an ear out for this case. When all is said and done, it could be the most important case in the history of GLBT civil rights law. 

    Finally, we also took a Title VII loss recently, when a federal judge in Kentucky ruled against Terry Lindsey, a lesbian who is representing herself. Although the judge claimed he had no choice but to follow Sixth Circuit precedent, he seems to have ignored the implications of a recent Sixth Circuit Title VII ruling in favor of a transgender funeral director. We’ll see. I assume she will appeal to the aforementioned appellate court, who can then decide how much weight to give to their own caselaw, but the next steps are unclear given Lindsey’s unorthodox strategy. I could not even find information on Google News by typing “Terry Lindsey,” so that tells you something. All the dirt I have comes from the blog of New York Law School professor Arthur Leonard.

    Cum Here

    I see that I am running out of space, but I have just enough to mention a story out of Charleston, South Carolina, from last month. Jacob Koscinski graduated from a Christian home school program with a 4.89 GPA, according to the Washington Post. (Yes, in my day the highest was 4. Maybe God adds an extra point.) At any rate, his mother ordered a cake from the local grocery store, asking for a message that included the expression “summa cum laude,” which is Latin for “you got very good grades!” 

    Tell me if you’ve heard this one before. Yes, that’s right! The grocery store refused to include the word “cum,” Latin for “with,” because I guess the manager read some pretty bad porn novels when he was 12 or 13. I don’t know. They thought it was a nasty word, so they wrote “Congrats Jacob! Summa … Laude Class of 2018.” 

    Reading more closely, I see that the store uses an algorithm that selected “cum” for disfavored status. The worst thing about it, said Cara Koscinski to the Washington Post, was having to explain the censorship to her 70-year-old mother, which makes me wonder: Is 70 too old to have encountered multiple definitions of the word “cum?” For God sakes, she’s a child of the 1960s.