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    Ann Rostow: Marriage, Yes. Equality, Not Yet

    1-Ann RostowBy Ann Rostow

    Marriage, Yes. Equality, Not Yet

    The fight for marriage equality is over. Yes, perhaps a few clerks will balk here and there and the more conservative GOP candidates will continue to bluster, but the whistle has blown and we won. Even as I write, Mel is trying to figure out whom to call to put me on her school district’s health insurance. Yay!

    More than one commentator, however, has noted that “the fight is not over,” etc. etc. Much as I hate to parrot the crowd, it’s quite true. The fight for equality itself under the law as a general rule is still very much ongoing, since for all its passion, Justice Kennedy’s opinion in Obergefell v. Hodges did not provide specific guidance on how gays and lesbians should be treated under the Equal Protection Clause. His ruling, although it touched on equality, was grounded in the fundamental rights all Americans receive under the Due Process Clause, which include the right to marry. Yes, we now have the right to marry under this rationale. But so do deadbeat dads and incarcerated prisoners, thanks to previous High Court marriage rulings. It would have been nicer to say that gays and lesbians deserve equal treatment in general, don’t you think?

    That said, it’s not a time to be churlish, so I send my thanks to Justice Kennedy, our champion on the Court, who stood up for our humanity and dignity in a short, but eloquent, opinion. The four separate dissents were irritating in the extreme, but they will fade into legal history without a shadow.

    One thing I’ll note. The neophytes who believed back in 2009 that it would be a slam dunk to race marriage equality to the High Court have perhaps learned in the last six years that the task was just as difficult as the GLBT legal community insisted at the time. We won by the skin of our teeth, and we did so by taking the smart route, first attacking the Defense of Marriage Act, and then pushing for marriage equality.

    To the Bakeries!

    The challenge now before us is the (faux) conflict between gay rights and religious freedom. Here’s the bottom line: Religious freedom, rightly protected under the Constitution, does not include the “freedom” to mess with people you don’t like under the banner of faith. There’s no freedom to run a store that sells only to whites. There’s no freedom to refuse a marriage license to a divorced woman. There’s no freedom to require all male employees to grow beards. The list goes on, yet somehow we’ve allowed a debate to flourish over whether or not GLBT bias provides an exception to these established limits. Almost any viewpoint can be presented as a tenet of faith. But as a secular nation, these viewpoints do not enjoy unlimited protection under the law at the expense of fellow citizens.

    Even our own community, working back in the day to pass various gay rights bills, agreed to wide ranging loopholes for religious groups and people of faith. That stance, pragmatic as it was at the time, gave credence to the notion that disdain for gay people is an accepted and legitimate part of the Judeo Christian ethic. That is simply not true. Yes, many conservative Christians “believe” that homosexuality is wrong. But they do so out of habit and longstanding prejudice, not faith.

    The Constitution, as well as a range of laws, clearly protects our right to religious practice and expression. But, as even Justice Alito acknowledged in the Hobby Lobby decision, faith based accommodation does not trump civil rights under federal law. Unfortunately for us, sexual orientation bias is not covered under federal law. It remains in limbo, providing a window for businesses and employers in many states to discriminate at will. Yes, we’ve read about the bakers and photographers who were nailed for refusing gay customers. But all of them operated in states where sexual orientation discrimination is not permitted.

    In most states, no such protections exist. It’s great to be married. But in large parts of the country, there’s nothing stopping your boss from firing you once you get back from your honeymoon. In this day and age, you might be able to sue, hoping that a court might interpret Title VII of the Civil Rights Act of 1964 in your favor. But, hello? There’s a reason people use the expression “let’s not make a federal case out of it.” It’s hard, long and expensive.

    You remember the Employment Nondiscrimination Act (ENDA). ENDA was riddled with inappropriate religious loopholes, and as a stand alone “gay exception” to federal workplace laws, it did not offer the same protections granted to women and minorities. It seems clear at this point that the main gay rights organizations have finally abandoned this archaic measure, and are ready to argue that sexual orientation should be added to the list of other groups now covered against bias nationwide. It’s about time, and it’s the surest way we will beat back the argument that “religious freedom” justifies overt prejudice.

    So that’s our next fight. If Justice Kennedy had ruled that sexual orientation comprises a “suspect class” like race and gender, we would have already won. But although he came close, he left it to us to battle this out in state and federal legislatures. It’s also possible that a federal case on gay bias could rise to the nine justices, but our majority there is fragile, and a GOP president in 2016 could slam the door shut on further progress at the High Court.

    From Outlaws to In-laws

    The fight for bias protection is critical, but it’s never going to carry the emotional charge that brought marriage equality into the hearts of a majority of Americans. So in one sense, a dynamic phase of the gay rights movement now comes to an end.

    And make no mistake, having won the right to marry, there’s no chance that we will fail in the larger fight for equality. The reason marriage was so important is that it took gay relationships out of the fringes of American society and wove them into its fabric. The stereotypes that support bigotry are simply gone. We are no longer a subset of the various deviancies that range from bestiality to pedophilia. We are not like alcoholics (not that there’s anything wrong with that); we’re like people with red hair.

    It’s ironic that the movement that began with a call to sexual liberation now concludes with assimilation into the suburbs and the PTA. But although some people have bemoaned the loss of a GLBT subculture, many more of us recall the overall context of that subculture: shame, ridicule, hiding, violence, hostility and fear. I’ll shed no tears for the loss of community. It was always based on the shared persecution that brought middle-aged women together with teenaged boys in solidarity for the social ostracism that enveloped all of us in its cold embrace. I understand the nostalgia in a way. But I wouldn’t go back, and it’s not something that can ever be retrieved.

    Don’t be sad. We’ll always have the Castro. We’ll always have Greenwich Village. We’ll always have Cherry Grove and P’Town and all those wild gay memories. Well, some of us will. You Millennials missed it.

    Yeah, You Are Alone

    Last issue, I wrote about a woman who went to GoFundMe in order to finance new gay friendly yard ornaments. You remember. (For God’s sake, didn’t you read my column?) She claimed a neighbor had complained about her “relentlessly gay” outdoor rainbow candles, and she pledged to take the decor over the top with the help of generous allies. Now it seems that she might be a fraud. People noticed that the alleged letter from a neighbor matches the unorthodox style of her GoFundMe appeal, and she was unable to produce the letter for police. Oh, who knows? Who cares? I just had to mention this since I put in in print last time around.

    And have you seen the annoying YouTube video produced by CatholicVote that aims to generate sympathy for the unpopular faction of young people who oppose marriage equality? The spot’s gimmick involves close ups of twenty-somethings who nervously hem and haw as if they were about to come out of the closet as gay. Using the catch phrase “you are not alone,” the actors then confess that they believe marriage is between one man and one woman—even though they have many gay friends! “I have tried to change this before,” says one sad looking female, “but it’s too important to me.”

    Not to rehash the religious freedom screed launched earlier in this column, but the idea that participants in the shrinking anti-equality minority are becoming persecuted victims is infuriating. Being in the minority is new to them, and they apparently don’t like it very much. Tough. At least they don’t have to fight for civil rights, lose their jobs, or walk past a hardware store in East Tennessee that hangs a sign in the window saying “people who believe in traditional marriage” won’t be served.

    The video has earned a slew of thumbs down from 11 out of every 12 viewers, and I watched a terrific satire where young men and women take turns bashfully telling the camera that they think women belong in the kitchen or the races should be segregated. “Bigoted is a huge word that gets thrown around,” says one, “… and that hurts me!”

    Oh, and that hardware store in Tennessee with the “no gays allowed” sign took the sign down and replaced it with one that said: “We reserve the right to refuse service to anyone who would violate our rights of freedom of speech and religion.” Say what? First Amendment rights protect us against government abuse, not against a difference of opinion with our hardware store customers. Tennessee, by the way, is one of those places where it’s perfectly legal to ban gays from your business. On the other hand, most antigay business owners have suffered as much from outrage as ordinances, as both gay and straight customers stay away in droves at the first sign of overt prejudice. Is that a tear I see in the corner of Mr. Hardware’s eye? Are we being mean to you?

    How Dry I Am

    Just as I was about to launch into yet another incident involving antigay business owners, I took a break and Mel read my column up to this point, announcing it was “pretty dry.” Hmmm. It’s too late to start from scratch and rewrite the damn thing, but I feel a little deflated. Dry? Really? What’s dry about constitutional law?

    It’s not dry, it’s thought provoking! For example, let’s say that it’s illegal to discriminate against gays in…oh, I’ll pick Oregon out of the hat. Is it also illegal to announce that you plan to discriminate against gays? The answer to that question is yes, because putting up an antigay sign or making it clear that gays aren’t welcome is not protected speech under the First Amendment. It’s basically a violation of the underlying anti discrimination law because it has the same discriminatory effect and hinders the gay person from having equal access to your store.

    Recently, the Oregon Labor Commission levied a $135,000 fine on antigay bakers Aaron and Melissa Klein (following their refusal to serve lesbians in 2013) and also ordered the Kleins to stop insisting in the press that “Sweet Cakes by Melissa” will not make cakes for gay weddings. Now, the conservative press is afire with bombastic headlines accusing the Commission of issuing a “gag order” and trampling on the Kleins’ free speech rights. That’s just wrong, but this is par for the course from the right leaning media, which can be expected to flog everything and anything that advances the storyline of religious victimhood.

    Stop whining and write that check, Melissa!