By Ann Rostow
Mensis Horribilis
You should have seen the essay I wrote last week after one of the most horrendous series of antigay court actions in recent years. I was disconsolate, pessimistic, infuriated—almost in a day-after-the-election mood, quite frankly. Lucky for all of us, the publication schedule kept that column out of print, and I can now start again with a dispassionate account of the stunningly bad developments of late June and early July.
I have rewritten this diatribe several times now. I start with a cogent account, but in the blink of an eye, I’ve found that I’ve produced a thousand words of rambling invective. Let me begin with a simple run down.
First, the U.S. Court of Appeals for the Fifth Circuit released the hold on Mississippi’s antigay religious freedom law, allowing it to go into effect while litigation continues. The law, which allows anyone and everyone to discriminate on the basis of sexual orientation or gender, had been put on hold by a lower federal court while the legal challenge continued. Emphasis on “had been.”
Then, we had good news from the Supreme Court, which reversed a horrid decision on birth certificates by the Arkansas Supreme Court. The Hog State bench insisted that listing parents on birth certificates was based on biology, not marriage, ergo the children of two married lesbian couples in this case were stuck with only one parent on this crucial document. But Arkansas automatically lists the husband as the father on straight people’s certificates, even when the husband is not the biological father. So clearly, the policy treats gay marriages differently than straight unions. The High Court did not bother with arguments, simply accepting the case and reversing the Hogs in one move.
What’s then the problem here, you ask? This sounds like good news. True, but in a dark twist, the seemingly genial Neil Gorsuch took this opportunity to write a pompous dissent in favor of Arkansas. Joined by Thomas and Alito (but not by Roberts), Gorsuch revealed himself as a true foe of the GLBT community, an ominous and surprising development.
Moving right along, the Texas Supreme Court then gave credit to the appalling idea that the High Court’s marriage decision did not necessarily extend to the benefits of marriage. Texas’s highest civil court sent a lawsuit back to lower court with permission to examine whether or not the city of Houston was required to recognize the marriages of city staff. For the record, Houston is on our side in this case. The suit was brought in 2013 by some disgruntled taxpayers.
Finally, nearly a year after the petition was filed, the High Court agreed to hear the case of a Denver baker who refused service to two gay men celebrating their marriage. I can’t say that nothing good will come of this case, since by rights we should win, and maybe we’ll get a strong opinion. But that’s just one good thing. There are also many bad things that could come of it, and those give me great anxiety.
All of this happened in the space of a fortnight! Bam, bam, bam, bam. We haven’t seen antigay legal news like this in over a decade. At that stage, at least, we were headed in the right direction. But where are we headed now?
Scary SCOTUS Session Ahead
I could write a couple of thousand words on any one of these blockbusters, but that’s what led me into incoherent rants in my earlier drafts. Instead, I’d like to take on the bigger picture. GLBT civil rights have been, and will continue to be, fought in the courts. Yes, we’ll have some success in blue states and cities, but Congress is useless. As I’ve mentioned before, part of our problem in the courts flows from the vague victories delivered by Anthony Kennedy, who presumably sought some kind of “compromise” by ruling in favor of gay civil rights, but doing so half-heartedly.
Let’s give Kennedy a break for his 1996 and 2003 rulings in Romer and Lawrence. Gay rights were not yet popular, and the law works slowly. But in 2013 and 2015, Kennedy ruled first, that the federal law limiting marriage to straight couples was unconstitutional, and second, that any law limiting marriage to straight couples was unconstitutional. Yay! We all broke out the Champagne. Mel and I were at a kid’s birthday party in a park in Amsterdam, and we went off, found a liquor store, bought a bottle of Bollinger and drank it walking back down the street.
But here’s the problem. Kennedy never connected the dots, legally, on his reasoning. He refused to discuss whether or not discrimination against gay people should be considered “suspect” as is the case with bias on the basis of race or religion or gender. Our group fits the legal requirement for this kind of judicial protection. We are a historically despised minority, based on a neutral characteristic that does not impede our ability to contribute to society. We are treated unequally based on prejudice alone. And, indeed, Kennedy comes close to describing us as a suspect class, but he does not spell it out. What does that tell our adversaries in court? It tells them that we are not a suspect class and that we are not deserving of tough legal scrutiny in gay bias cases. If we were, our enemies note, Kennedy would have said so.
Imagine if he had. Mississippi would not have been allowed to enact a bill that allowed discrimination against a protected class. Texas would not have found potential loopholes in the marriage equality ruling. Masterpiece Cakeshop would have no basis for a claim of religious expression. After all, you can’t deny service to Blacks, Jews or women based on “religion,” even if you could find some scripture to back you up.
If Kennedy had made a clear legal case for GLBT equality, we would not be struggling to protect ourselves from discrimination, as we continue to do. Our main tactic at present is to press the argument that sex discrimination (illegal throughout the country in education and the workplace) encompasses gay and trans discrimination. The full bench of the Seventh Circuit recently agreed, and other federal appellate panels have urged their circuits to reverse earlier case law and fold sexual orientation and gender identity into existing anti-discrimination law. In the case of a Georgia lesbian, however, the Eleventh Circuit ruled the other way and the full court declined to reconsider the case. Lambda Legal will appeal this Title VII (workplace) lawsuit to the Supreme Court, which is likely to take the case next year.
Since sex is a protected class, a victory in this debate would immediately elevate sexual orientation and gender identity onto the same plane as sex and race, closing the infuriating gap that allows courts and lawmakers to create their infamous “gay exceptions.” Again, the Colorado baker, Jack Phillips, would lose his case.
But what if Masterpiece is heard and decided before a Title VII case reaches the Court? Justice Kennedy has a soft spot for religious freedom, and voted in the majority when the antique thieves at Hobby Lobby were given a faith-based alternative to the Affordable Care Act. But, even in that case, Justice Alito made clear that faith could not trump civil rights laws like those that protect against racial discrimination. Is Colorado’s law against GLBT discrimination in that category? Or is there a gay exception for religious freedom?
I’d like to think Kennedy will stand by us once again. But what if we get another wishy-washy opinion? Jack Phillips claims his cake baking is an art, so his faith is supposedly pummeled, not just by contributing to a godless marriage, but by his being forced to put his artistic talents to work in the process. Yet Phillips refused to sell the men a cake without any discussion. A generic wedding cake is not a work of art. It’s not as if his would-be clients requested naked men etched into its sides. What if the Court rules that Phillips was at fault in this particular case, but that faith could triumph in a hypothetical situation where artistry was a factor?
If a gay exception is left in place, how would that effect a Title VII case down the road? How could the Court single us out for possible future mistreatment in one case, and turn around and give us full protection a few months later?
I’m guessing Masterpiece will be argued early in the next Court session. If Lambda’s case is quickly accepted, it’s possible that the Court could deliberate on both issues at once and coordinate their conclusions. Justice Kennedy has hinted that this might be his last year on the Court. Wouldn’t he want to cement his legacy as the champion of GLBT civil rights by making the clear pronouncement that gay bias is as irrational as any other unlawful prejudice?
I hope so, but then again, it’s all up in the air.
Justice Jerkface
Let’s talk about Neil Gorsuch for a minute. What an idiot I was for assuming that a mild-mannered 50-something guy from Colorado with no obvious antigay background would be preferable to a hypothetical conservative who “could be worse.” Not only is Gorsuch worse than the nameless alternative, but he also appears to be insufferable.
Veteran Supreme Court analyst Linda Greenhouse wrote a must-read op-ed on July 6 in The New York Times, comparing Gorsuch to the new kid who sticks his hand up at every question. He has preened on the bench, badgering lawyers with questions. He has made gratuitous comments in dissent and concurrence, taking aim at his colleagues and misreading the underlying opinions. His tone is obnoxious; indeed, I am inspired to characterize him with the oft-misused adjective “bombastic,” which means “pompous and pretentious.” (Unfortunately, since everyone thinks it means loud and aggressive, the word has become unusable.)
Check out the last paragraph of his dissent in the birth certificate case:
“… It seems far from clear what here warrants the strong medicine of summary reversal. Indeed, it is not even clear what the Court expects to happen on remand that hasn’t happened already. The Court does not offer any remedial suggestion, and none leaps to mind. Perhaps the state supreme court could memorialize the State’s concession on §9–10–201, even though that law wasn’t fairly challenged and such a chore is hardly the usual reward for seeking faithfully to apply, not evade, this Court’s mandates.”
Remember that Arkansas was trying to deny married lesbians the documentation that it supplies to married heterosexuals, and claimed that it was following a policy of recording biological parents when, in fact, it wasn’t. Summary reversal was hardly “strong medicine,” and, as for the remedy, it’s pretty obvious: stop discriminating. Oh, and don’t you love the notion that Arkansas was seeking “faithfully to apply, not evade, this Court’s mandates.” WTF?
It’s not just his ideology, it’s his tone. I was so wrong, dear Readers.
Tennis, Anyone?
I’m watching Wimbledon with the sound off and I only have a short amount of space remaining, which makes me want to blather about nothing, fix a cocktail, turn the sound back on and stop worrying about the future of the GLBT civil rights movement.
I should mention that the German legislature passed marriage equality, but you knew that already, right? I also read something about Australia, but you know my feelings about Australia. Get it together and pass marriage equality, but don’t expect me to report on your endless, pointless and useless machinations in the meantime.
Oh, I’m sure there are a million other items worth our attention, but hey, it’s Wimbledon! I have taped the matches for later, but my dearest friend Jill Ridder, who celebrated her birthday on July 9, just texted me about the CoCo versus whoever match, so I guess I won’t watch that one. Go Halep!
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