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    Ann Rostow: Ms. Smith Goes to Washington

    By Ann Rostow–

    Ms. Smith Goes to Washington

    Has this ever happened to you? You have six hours to write a 2,000-word column about GLBT law and politics. The Supreme Court is about to hear arguments on a big gay case, the U.S. Congress is about to pass a Respect for Marriage Act, a gunman has just shot up a GLBT bar in Colorado Springs—but you’re not in the mood to write about gay stuff. You’d rather binge-watch Britbox, day drink, or maybe pick up the Lincoln biography you’re in the process of reading. Or do all three! Why not?

    Since you have to write something, maybe you can write about cute animals or the money-grubbing bozo who just crashed the crypto market. But no. These other subjects call to you, insisting on your attention like the seminar professor who makes eye contact with all five students and asks thought-provoking questions when you least expect it. 

    “Ann, can you tell us why 303 Creative v Elenis is different from the Masterpiece Cakeshop case that also involved a Christian business owner in Colorado who sought to avoid the state’s law against GLBT discrimination in the public square?”

    “Uh, could you repeat the question?”

    Okay, okay. I do know that one, as do you if you’ve been a loyal reader. Web designer Lorie Smith is asking the court whether she will have to abide by Colorado’s civil rights code once she starts offering web designs for heterosexual weddings. For one thing, unlike the cake baker in Masterpiece (who won on a technicality), she has not yet encountered a same-sex couple, let alone rejected their business. In fact, she hasn’t even begun her wedding service since she has decided to preemptively test the civil rights law in court. 

    That’s one difference and normally I’d say it would be a dealbreaker for Smith. You’re not supposed to litigate hypothetical situations. You’re supposed to wait until you have an actual controversy. But there’s clearly a loophole here that eludes the San Francisco Bay Times legal expert, because why would the High Court have accepted the case if they weren’t prepared to give it a go?

    Second, unlike the baker, who argued that his freedom of religious expression was under attack, the Supreme Court has determined that Lorie Smith’s case will only concern her freedom of speech. Yes, her antigay views stem from her religion, but in theory that will be reduced to a factual detail. The Court is examining whether or not the Colorado law forces her to describe her business as open to all comers, and prevents her from expressing her opinions to the public. As far as Colorado is concerned, however, the law governs her actions, not her speech. She can say anything she likes, as long as she does not discriminate against gay and lesbian couples.

    That does sound dodgy. Can she really say something like, “I believe marriage is between a man and a woman,” in her presentations and simultaneously meet Colorado’s standard of non-discrimination? If so, can she advertise that she believes interracial marriages “upset nature’s balance” and still avoid racial bias in practice? For that matter, if we take religion out of it, which we are doing, what’s the difference between a race-based prohibition and an antigay policy? If one’s okay, then surely both should stand. Keep in mind that Colorado can, and will, argue it has a compelling interest in protecting its citizens against bias that will trump Smith’s constitutional rights in this instance.

    Arguments in this case are scheduled for Monday, December 5, and I think you can follow them on some website somewhere. They will likely last a couple of hours. Oh, and if you’re wondering, Aubrey Elenis is the head of the Colorado Civil Rights Division and first in the alphabet of the appellees.  

    Better Safe Than Sorry

    What else is out there? The Respect for Marriage Act! This bill, which was about to pass the lame duck Congress as the Bay Times went to press, was supposed to be a political maneuver to force Republicans into an awkward antigay vote before the midterms. Same-sex marriage is extremely popular these days. And there’s a sentence I couldn’t imagine writing when I started this column in the mid-1990s.

    Instead, the bill passed with so many House Republicans that its Senate sponsors soon realized it could win 60-plus votes in the upper chamber. First planned for October, it got moved to the lame duck session to shore up these votes. Last Tuesday, the Senate was expected to pass the Act, which must return to the House for confirmation before heading to President Biden. 

    One of the reasons our community won this rare nod from lawmakers lies in the fact that the bill is redundant. As you may have noticed over the last seven years, we already have the right to marry. The Respect for Marriage Act was designed as a fail-safe to prevent a rogue Supreme Court from overturning its own 2015 marriage equality precedent, but since that prospect is extremely unlikely, the Act is more of a symbol. It also builds in the right to object to our marriages on religious grounds, which again, has always been an option.

    Nevertheless, we’ll take it, assuming some unexpectedly weird amendment has not been tacked on at the last minute.

    Do We Care?

    So, I’m having a hard time investing my mental energies into the World Cup given the barbarism of its homophobic and misogynistic host country. That said, I want France to win, since I lived there for many years and I don’t think my other favorites, Mexico and the U.S., are good enough to advance. I still won’t watch the games, but that’s mainly because I shrink from the monotony of it all. Kick the ball down the field. Kick the ball back up the field. Kick the ball around and back down the field. Kick the ball around and back up the field. Repeat ad nauseam for ninety-plus minutes punctuated, if you’re lucky, by a goal or two. Please, somebody turn on the NFL.

    Speaking of the NFL, I guess Stephen Smith used the word “homosexual” instead of “gay” on his ESPN show First Take the other day while talking about a crude comment from Raven’s quarterback Lamar Jackson. I won’t report on Jackson’s remark only because the context is too confusing and I don’t want to spend half an hour figuring out what the hell he was taking about. I’m more interested in how we as a community feel when someone says “homosexual.” Personally, I dislike it intensely, but consider it a matter of ignorance rather than hostility.

    “I’m not a homosexual so I’m not going to define what’s offensive to them or not,” said Smith. “It looked to me like [Jackson] was cussing the dude out … that’s how I read that, cussing somebody out as opposed to going where folks might go with that. But again, I’m, not a homosexual, so the homosexual community, the gay community gets to define that better than me.”

    Smith later apologized for the term. “The LGBTQ community prefers that over other words because obviously other words are believed to be derogatory in their eyes. So as a result of that, my apologies. I should have used the word gay.”

    That’s enough for me. Homosexual and heterosexual could be used in a formal discussion of specific sexual orientations, but to call gay men or women “homosexual” in general reduces our identities to sexual ones and evokes the bygone days of pervasive shame and loathing. What do you think?

    Bad Air Over Georgia

    There’s a really good Warnock ad featuring Georgia voters in headphones listening to Hershel Walker’s incoherent discussion of vampires and werewolves, as well as his theory that “bad air” from China was replacing the “good air” over North America and should be sent back. The ad was embedded in an article on the runoff, and in one of the reactions to that article, I saw Walker quoted as follows: 

    “There are no bones in ice cream, as I have said, religious or otherwise, regardless of shoe size. In fact, I like toasters.”

    My wife and literally could not determine whether this was a satiric “citation” or an actual quote. I had to check it out, and indeed this was satire and not a real comment. But it’s astonishing that neither of us were confident enough to make a judgment. I mean, read that quote! And yet, we weren’t sure that it wasn’t a thing. This man, who is capable of spouting absolute nonsense and who spends his early morning hours watching Fright Nite horror movies while running for the U.S. Senate, was very nearly elected to represent the state of Georgia and will still have a good chance of winning a Senate seat on December 6. How is this possible? 

    For the love of God, please spare us this outcome.

    New Subject!

    In another attempt to avoid serious topics, I was just cruising around cyberspace and noticed an article titled: “Tips for surviving a bear attack.” 

    First, you should stay calm. (Okay, I guess.) Second, you should not run away, rather make yourself as big as possible and yell at the bear. Yes, I’ve heard of this “don’t run away from the bear” advice, but I’ve also heard of the “flight or fight” instinct, and my personal instinct would be “flight.” I can’t picture myself yelling at the bear or provoking it in any way. Particularly if I have already failed to follow the “stay calm” suggestion.

    If the bear persists in a menacing posture, even after your provocative behavior, you are told to play dead. “If you lie still and pretend to be dead, the bear may lose interest and move on. In addition, playing dead can help prevent you from being seriously injured. Bears have been known to attack humans who fight back, but they typically only bite and claw victims who are already lying down. As a result, playing dead is often the best way to survive an encounter.”

    What? Does that make any sense to you?

    Presumably “playing dead” involves lying down, right? And we were just told to yell at the bear, which sounds like “fighting back.” So, two key pieces of advice would seem to invite attacks, biting, and clawing. 

    “To protect your vital organs, curl up into a ball with your hands over your neck and head,” the experts continue. “Tuck your chin down to protect your throat, and keep your legs close together to make it harder for the bear to injure you. If possible, try to cover yourself with anything you have near, like a backpack or a coat. It will help protect your vital organs further and make the bear less likely to continue attacking you.”

    Why would it stop? The bear has already started to mess around with you. It’s obviously pissed off, and earlier in the article we were informed that bears are very strong and powerful. You’re pretty much dead by now.

    “If you are ever unlucky enough to find yourself in a bear attack, remember to stay calm and follow these simple guidelines,” the tipsters conclude. “If you cannot move once the bear stops attacking, call for help immediately.”

    Call for help? That implies you had a bunch of friends nearby who did nothing to save you in the first place. They probably panicked and ran away while you stood your ground, screamed at the bear, and then curled up and let it maul you until you couldn’t move. They ignored all the tips and yet they’re fine and talking to the park rangers while you’re headed for a toe tag. 

    We’re Not Always Special  

    I guess we didn’t need eight paragraphs on the bear thing, but what’s done is done. I’m avoiding reports on Club Q, because while the GLBT community is one target for young violent white men with automatic weapons, we are just one of many targets in their sights. 

    Our community is the special target of lawmakers. We are the special target of rightwing lawyers suing for religious dominance in public affairs. But we are not the special target of these deadly madmen. They will just as happily kill Jews, women, immigrants, Blacks, and children. 

    Meanwhile, I greatly admire the straight hero soldier who took down the Club Q freak. At first I thought some gay guy was the patron that subdued the gunman, which sounded like a stereotype-busting scenario. But here’s even more of a stereotype-buster: the image of a decorated special forces veteran taking his wife and family out to a GLBT bar to enjoy an evening drag show. 

    I guess the shooter is non-binary. Fine. But he’s not part of our community as far as I’m concerned. Richard Fierro, on the other hand, is a very welcome ally.

    GLBT Fortnight in Review
    Published on December 1, 2022