By Ann Rostow–
Nightmare on Washington Street
This morning I tossed and turned, thinking about how I would soon have to get up and write about the Arizona Supreme Court’s 4–3 ruling in favor of two Christian conservative business women who sought, and narrowly won, the right to ignore a ban on sexual orientation discrimination in Phoenix. The glib majority opinion explained that the First Amendment’s guarantee of free speech means that a stationery store can’t be forced to sell wedding invitations to same-sex couples if the owners disapprove. No state or local statute can compel “pure speech” they wrote, blithely ignoring the law itself, its purpose, the gay men and women of Phoenix, the equality goals of the city of Phoenix and—by virtue of the implications—gay and lesbian citizens throughout the country.
Part of my problem is that I’ve written about the subject so many times, and with such frustration, that I feel hard pressed to go over the same material, the same objections, the same obvious points, the same dangers we face from similar courts in similar conditions. And I’m writing to you, the chorus who has heard the same sermon time and again. I see you rolling your eyes in the alto section, begging me to skip the legal reckoning that pits the right to equal access in the public square against the right to free speech or religious expression.
And after all, this ruling only affected “custom designed” wedding invitations, an artful exercise that claimed to implicate the “Brush and Nib” store owners in a gay celebration against their will. The local law is still intact and gay couples have many other options. Who wants to do business with an antigay wedding purveyor to begin with?! Can’t we all get along?
But here’s the thing. A law against sexual orientation discrimination is not directed at the vast majority of bakers and florists and photographers who are happy and eager to do business with gay couples. It exists to protect us against the small minority who would turn their backs and flip the sign on their door from “open” to “closed” whenever we approach. The Phoenix council and other legislative bodies passed laws to protect us against these very people; the gals at Brush and Nib, the florist in Washington, the baker in Colorado, the photographer in New Mexico, the innkeepers in Hawaii, the videographers in Minnesota. And while courts have mostly sided with gay plaintiffs, the tide is turning. Last month, the U.S. Court of Appeals for the Eighth Circuit ruled in favor of the antigay videographers, and now this, the Supreme Court of Arizona ruling in a case that they have been sitting on since oral arguments last January.
It’s not a coincidence. It’s a growing trend against GLBT rights that is manifested throughout the Trump administration and is leaking into red state policies, seeping through increasingly conservative courts and simmering into society like a broken sewer. It’s ominous.
I can’t stress to you enough: these are not cases of Christian Business versus Jim Roe and John Doe. These are cases of Christian Business versus State Anti-Discrimination Law or City Civil Rights Ordinance. These laws and ordinances cover race, religion, GLBTs and others, but as far as the courts are concerned, they carry a gay exception for anyone operating under a religious banner. It’s exactly like passing a law against speeding with court-based exceptions for people who really like to drive fast.
Pure Nonsense
The Arizona case was based on Free Speech, not religion, but all of these public accommodation cases involve Christian business owners, because they are the only ones with a formal excuse for discrimination. To date, no one has tried to argue that they reject gay clientele because of the “ick factor,” but who knows? Indeed, considering the broader context of Christianity, it’s pretty clear that the “ick factor” lies beneath the expressions of sincerely held beliefs that are trotted out to justify antigay behaviors. Nowhere does the New Testament belabor the pros and cons of sexual orientation and many, if not most, Christians harbor no faith-based ill will towards gay men and lesbians.
And yet courts pride themselves on not examining or second guessing these ostensibly devout business owners, taking for granted that their deep religious convictions compel them to express disdain for their GLBT fellow citizens and would be customers. At Brush and Nib, the owners argued, the wedding invitations are individually designed and tailored to each couple, requiring the owners to take a personal and artistic stake in each celebration. How could they possibly invest themselves to such an extent in an unwholesome gay marriage?
In fact, looking at the example cards on file with the court, it seems that the customized part of the invitations involves the names of the couple inscribed in a flowery script. Obviously, all wedding invitations are individually designed because they all include the frigging names of the two people getting married! Brush and Nib claim that they would be happy to sell generic wedding invitations to gay couples, an oxymoron unless you don’t mind leaving your names off your invitations and letting your prospective wedding guests figure out for themselves who is getting married. Or maybe filling in your names by hand on each card.
But I digress. I promised myself I would avoid a simple rehash of the legal arguments involved in these discrimination cases. I also promised myself that I would resist the temptation to trot out the case of the religious taxi driver who kicked two lesbians out of his cab on an interstate highway at 1 am, even though that’s my favorite example of why we can’t just go down the street to the gay friendly baker. Because there’s no gay friendly taxi driver out cruising the highway in the middle of the night.
Okay. I had my fingers crossed on that last promise. But there’s no significant difference between the taxi driver and the other service providers. I’ve used the taxi driver story often enough that I just looked up the details to refresh my memory. The driver threw the women out of his cab on I-84 in Portland back in 2013. The women climbed a fence to get off the highway and were eventually driven home by police. In checking this out, I encountered a half dozen other news reports of gay men and women being kicked out of cabs and Ubers by religious drivers, so the anecdote is not some off-the-wall example.
Tangentially, if you google “taxi driver lesbians,” which was my first search attempt, you are presented with an entire page of porn links. Who knew that lesbian taxi drivers were a staple of sexual fantasies right up there with the pizza delivery guy? I mean, if you think about it, they have to keep their eyes on the road, right? Doesn’t that limit their options?
Putting the Toothpaste Back in the Tube
The worst part of this ruling was the easy patter of the majority. I called them blithe and glib earlier, because the opinion seemed to rest on an assumption that their conclusion was obvious, natural, and based on commonly respected constitutional principles. Of course, these invitations represent “pure speech.” Of course, a Christian business can refuse gay custom. Of course, producing a gay wedding invitation represents a violation of deeply felt Christian faith. Writing on an array of false foundations, the majority presented its opinion as a slam dunk, dismissing the three separate dissents with an airy wave.
I was particularly struck by their indifference to the obvious argument that other businesses might raise a religious objection to, let’s say, interracial marriages. Yet that just happened the other day in Mississippi, where the owner of a wedding venue refused to host a Black man marrying a white woman, telling the man’s sister that her Christian views conflicted with mixed race marriages.
After a social media meltdown, the woman apologized and explained that she had misread the Bible and had not realized that interracial marriages were actually a-okay with Jesus! But what if the next racist business sticks to its guns? There is nothing to differentiate Brush and Nib from the people who frown on interracial marriage at some other Phoenix wedding purveyor, although the Arizona court seemed to think such qualms were absurd.
Last month, the Eighth Circuit skipped merrily down the antigay path with the same breezy confidence, led 2–1 by one of Trump’s new conservative appointees. Soon, the Kentucky Supreme Court will rule on the similar case of a t-shirt company that refused to print Lexington Pride shirts. Last week, antigay Washington florist Barronelle Stutzman again asked the Supreme Court to hear her case after losing for a second time at the Washington Supreme Court.
Last spring, the High Court sent Melissa and Aaron Klein of Sweet Cakes by Melissa back to the Oregon courts for additional litigation, but it’s only a matter of time before one of these public accommodation cases gets accepted by the nine justices. After making a hash of the issue in the Masterpiece Cakeshop case, thanks to our “champion” Anthony Kennedy, the potential for a disastrous conservative ruling from the current Court is obvious.
Meanwhile, two major GLBT cases of workplace discrimination are scheduled for oral arguments on October 8 as the U.S. Supreme Court steps back into the arena for its new session. We can discuss those next time.
It’s enough to make me crawl back under the covers. Or ring the maid for an Aperol spritz.
When the Moon Hits Your Eye, Like a Big Pizza Pie
I have a confession to make. I often sprinkle my column with references to having a cocktail, but in fact, I don’t drink when I write. It’s just part of a louche image that I’m trying to promote. And I always drink after I finish a column, so it’s not a total fiction. I’m telling you this because this time around I am actually making myself a Campari, white wine and soda (I don’t have any Aperol) and it’s the middle of the day. Also, I don’t really have a maid or a butler, but my wife will fetch me things if I ask nicely. She went to the store, so I had to make it myself. Anyway, they drink these things at 11 am in Italy all of the time, so I think it’s fine.
And speaking of Italy, my beloved cousin sent me a Washington Post article about a burial site in Modena, where ten years ago, two ancient skeletons were found facing each other and holding hands in a single grave. The skeletons were dated to the fourth, fifth, or sixth century AD, the end of the Roman era, and were nicknamed “the lovers of Modena.”
Now, scientists have determined that the two people were both men of about the same age, raising questions about the goings on fifteen hundred years ago. According to the experts, no other male pairs have been discovered in single graves from this era, and it would have been “unusual” for male lovers to be buried together. Perhaps, one of the boffins speculated, the two were brothers or cousins, or maybe soldiers who died together during battle.
They were holding hands! Occam’s razor suggests that it’s most likely they were lovers, or at the least, Best Friends Forever. At any rate, the study that revealed the skeletons’ genders notes that “the discovery of two adult males intentionally buried hand-in-hand may have profound implications for our understanding of funerary practices in Late Antique Italy.” I don’t know about you, but I’m looking forward to the further extrapolations on funerary practices in Late Antique Italy. What else might turn up? An extra scapula in the columbaria outside Gnatia? Don’t miss our next column.
Now this flippant streak is why I don’t drink when I write. Meanwhile, Mel has returned from the store with cod filets, baby tomatoes and a bottle of Chablis. There was a reason I married her.
arostow@aol.com
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