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    Ann Rostow: No Chance for Hold-Out States

    By Ann Rostow

    No Chance for Hold-Out States

    The fortnights fly by, and we soar ever closer to national marriage equality. As October draws to a close, marriage is legal in 32 states, and another three states are fighting a lost battle to escape binding appellate court rulings. Those, for the record, are Kansas, Montana and South Carolina, where marriage bans can no longer survive legal review, but where officials are still pledging to “defend state law.” It’s just a matter of days really before judges in those three states slam down the gavel on these grand standing charades.

    Meanwhile, some states are asking the Ninth Circuit to review its pro-marriage decision “en banc,” i.e. with a large panel of judges. Since marriage remains legal during these long shot efforts, it doesn’t really matter. Consider as well that, earlier this year, the full Ninth Circuit declined to second guess a panel that delivered one of the most powerful pro-gay rulings ever issued. Under the circumstances, and given that the High Court itself has ducked marriage equality, it’s hardly likely that the Ninth Circuit will let the marriage litigation drag on any further.

    Oh. I hear some of you asking: “Ann, while you’re blathering on about the goings on in the Ninth Circuit, what about that powerful ruling you mentioned?” Of course! I was referring to SmithKline v Abbott, where Judge Stephen Reinhardt and his panel ruled that sexual orientation discrimination should be evaluated with heightened scrutiny by all federal courts in the nine-state circuit. That made antigay laws presumptively unconstitutional throughout the American West. Not bad for a day’s work, and pretty much the death knell for any Hail Mary passes from Idaho or wherever. We have seen the end zone, and there are no antigay players within fifty yards.

    Counting Down from Fifteen

    So, how about those other 15 states, you’re wondering? As you know, we are waiting on the Sixth Circuit for a decision that will cover Ohio, Michigan, Tennessee and Kentucky. That could come any day now, and it’s increasingly difficult to predict the outcome. If we lose, the High Court must intervene in order to resolve the constitutional principles at stake.

    Really? Listen, at this point I hardly trust myself to anticipate anything this Court might do, or not do. I was the one assuring all my readers that the Court had “no choice” but to accept review of at least one of the marriage cases that they were considering late last month. So much for my analysis, although I was in good company as the jaws of attorneys around the country dropped in unison when the Court declined to act.

    But could the justices really stall further if the Sixth upholds “traditional” marriage? At the risk of another botched prediction, I have to say no.

    As for the Fifth Circuit, they have just announced that oral arguments in the parallel cases out of Texas and Louisiana will be heard in the first week of January. Mississippi’s fate also hangs in the balance, as the College Football State falls under the Fifth’s jurisdiction.

    Then we have the Eleventh Circuit (Florida, Georgia and Alabama) and the Eighth, which covers the last five non-marriage states (Arkansas, Missouri, Nebraska and the Dakotas).

    The Eleventh has a case pending from Florida, where we won an equality victory last August. But Florida also has a state case that could conceivably beat the federal appellate court to a decision. Arkansas also has a state case pending a ruling by the Razor Back Supremes. And though marriage cases continue at the federal district court level in other Eighth Circuit states, there are no decisions on appeal yet. I should add that Missouri has carved out a special niche by refusing to appeal a federal court that ordered the Slave State to recognize marriages from elsewhere.

    Who’s on First Circuit?

    I’m happy to report that—as a matter of logistics—the above rundown represents the first time I have ever been able to review the status of states that do not offer marriage rights to same-sex couples. Soon, we’ll be able to recite the names of these backwards sisters just as we were once able to rattle off the names of all the states that allowed marriage equality. Soon we will count them on two hands, then one.

    But our journey through the American marriage landscape is not over for today. On Tuesday, October 21, a nut job federal judge out of Puerto Rico decided that the rest of the federal bench (with the exception of the lunatic out of Louisiana) was off track and that, in fact, marriage discrimination was not only defensible, but admirable. In other words, we received our second federal defeat in a marriage case.

    The ruling, by Judge Juan Perez Giminez, will now move to the U.S. Court of Appeals for the First Circuit, a small liberal appellate court that governs much of New England. I sort of forgot about Puerto Rico when I filed the First Circuit along with the Second and the Third under “Appellate jurisdictions where marriage is already legal.” But now, I suppose we can look forward to yet another strong equality ruling some time next year. Yay.

    I was going to write more about Puerto Rico, delivering some well-deserved ridicule on the doorstep of Judge Perez Giminez’s courthouse. But I find myself tiring of marriage news at the moment. Hey. Here’s something that occurred to me as I was reading about the hero Secret Service dog who captured a White House fence jumper the other day.

    Loyal readers know I have two pugs. Can you imagine if the Secret Service had pugs instead of attack dogs? Pugs will attack, in a sense. They will run up to strangers and bark wildly and try to jump on their legs. I think for every one German sheperd you would need ten pugs in order to maintain the same deterrent. But it would work! And how cute would that be?

    I can see the fence jumper anxiously prowling the intimidating barricade, his mind awash in crazy juice. He must see the President! Go Go Go. In one lithe movement, he scales the fence, stumbles briefly, and makes for the White House. A quick thinking agent radios the kennel. “Release the pugs,” he orders. Adrenaline surging, he races after the intruder. And now, a horde of small pugs converge from the other direction as fast as their little legs can carry them. Scowling with outrage (a common pug expression), the feisty pack trips up the dangerous suspect and surrounds him, yapping feverishly, until the agents catch up and draw their guns.

    The President and his family are safe! Later, the pugs gather under the balcony while Malia and Sasha shower them with pupperoni sticks. I like it.

    Words Won’t Hurt Matthew Shepard

    I have a number of items on my list, but they’re all over the map. One thing I thought I’d mention was a full page ad in the New York Times from GLSEN (Gay Lesbian and Straight Education Network) urging people to stop using the word “gay” in a pejorative context. The ad is part of a multi-media campaign, sponsored as a public service by the Advertising Council, aimed to call attention to bullying and name-calling.

    I think it’s great. I only wonder why the ad was placed on the inside back page of the Sunday Business Section. Seriously? Who reads that? I’m a devoted Times reader, but I would only read the business section if a) I had already read every other Sunday section, which is a time-consuming exercise, and b) if I had nothing better to do than read every single page of the Sunday New York Times, which suggests an alarming dearth of imagination. Those two criteria were indeed both met a few Sundays ago when I stumbled upon the ad, but who else would have seen it? A couple of CEOs and some MBA students?

    Having warned you that my topics are all over the map, I will pivot to the 2013 book that some investigative journalist wrote about Matthew Shepard. Here, I really should take a step back. I haven’t read the book and I can’t tell you its title or author without looking it up. I can tell you that the book, written by a gay man, was reportedly researched for 13 years and goes into detail about Shepard’s alleged drug use (crystal) and his relationship with at least one of the men who killed him (who was bisexual or at least tricked with men). The murder might possibly have been drug related, since Shepard may have had a stash hidden somewhere and/or the killers might have been high on meth.

    Is this true? I have no idea. I remember from covering the Shepard story that some of these allegations were reported at the time, but I also remember thinking that the story of Shepard was iconic, and that it was as much about gay bashing as it was about the individuals themselves. By the time this type of detail made it into the media, the story of Shepard brought forth the image of a young gay man hanging on a fence like a scarecrow with tears tracking through the dirt on his face. The killers represented the archetypical macho thugs who bashed their way through small town bars at will throughout this country without drawing even a sidebar in the local press.

    Nearly 20 years ago, the question of whether or not Matthew Shepard used drugs was completely irrelevant.

    That said, that was nearly 20 years ago. If Matthew Shepard’s murder didn’t really conform to the script, by all means, write a book and give us the evidence. From what I read, however, some community members are horrified at the notion that anyone would question the hate crime scenario. To some, Matthew Shepard must remain a pleasant young grad student, selected at random for a senseless murder by gay-hating strangers. Add to this, the fact that the far right has long pushed the (equally simplistic) idea that Shepard was a drug addict who deserved his fate, and you have a perfect storm, recently intensified by an article in the Guardian.

    The bottom line is that no research can challenge the phenomenon that followed the Matthew Shepard murder. No analysis can dispute the ubiquity of random violence directed at gay men. And no revelations about Matthew Shepard himself can mitigate the horror of his death. That said, there’s also no reason to condemn a detailed book about the man, even if it suggests he wasn’t an angel.

    It’s (Almost) All Over but the Shouting

    I actually could have written a lot more about marriage back at the point when I got tired of the subject, but you know the subject’s not going anywhere. Jimmy Carter annoyed the hell out of everyone the other day by opining that marriage should be up to the states, an obsolete notion that even President Obama has finally disavowed.

    And ahead of us lies a minefield of potential religious and free speech objections to married couples that could tie up the courts for years to come. Is baking a wedding cake the equivalent of “speech?” How about photographing a gay ceremony? Can a city in Idaho with gay bias protections force a tacky for-profit wedding chapel to marry two men? (Hey, it’s called the Hitching Post. Need I say more?) What if said business turns itself into a religious organization?

    I’ve covered this subject before and I’m afraid I’ll be covering it far into the future. But for now, I’d like to close with a motion to a federal court in Kansas, where a straight married couple would like to intervene in a marriage case. Ignoring federal procedure for the moment (which says you can’t intervene in litigation just because you have an opinion on the matter), this couple has done what right wing attorneys have not been able to achieve.

    They have put their finger on the real reason for the opposition to same-sex marriage, and I paraphrase: If gay men and lesbians can call themselves married, we will no longer enjoy using that word to describe our relationship. That’s it in a nutshell. That’s what it’s all been about and, unfortunately for the couple in question and others of their ilk, it does not pass constitutional muster.