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    Ann Rostow: Open Wide

    By Ann Rostow–

    Open Wide

    Someone on TV said that discussing the 2020 election was like predicting the World Series during spring training. True enough, and I totally agree, but it’s getting hard to resist, don’t you think? 

    Should we stick to the center in order to fence in Trump? Should we energize the progressive base? Should we try to attract the white working class? Should we inspire the Millennial voter? Is it risky to nominate a woman? What about a Black woman? Or is it riskier to send another old white guy out to challenge the one in the White House? How about the young white guy with the Robert Kennedy-esque style and the magic talent for fundraising? What should we do with the coffee billionaire who threatens to split the electorate? Maybe he’ll take votes from Trump. Maybe not.

    Then there’s the back and forth over “identity politics,” which seems to be a shorthand for “the political opinions of people of color, women or LGBTs.” Have you noticed that the only voices complaining about identity politics are straight white men? I liked Stacey Abrams’s takedown of their objections in her Foreign Affairs essay. Oh, and while we’re on the subject, white non-college educated working class is no less an “identity” than Black suburban lesbian Mom or what have you. Most of us are not looking to be catered to. We are looking to be included.

    And finally, I really hated Beto’s trip to the dentist. Loyal readers know how I feel about public displays relating to personal hygiene, in particular the declining modesty of TV commercials. So, I didn’t need to see that. In the same vein, I also can’t watch the ad with the close-up of everyone’s mouth and teeth. Nor can I stomach the toothbrush ad that uses a dirty ear of corn to illustrate gunk on your teeth. Gross! 

    If You’re Happy and You’re Gay, Clap Your Hands

    Conversion therapy is in the news this week, as the Alliance Defending Freedom (ADF) has filed a lawsuit against the City of New York, while a U.S. Magistrate Judge in Tampa has issued a recommendation in support of a couple of therapists who are challenging that city’s ban on the practice. Both the ADF and Judge Amanda Sansone seem to believe that conversion therapy is a harmless series of friendly chats between well-meaning practitioners and clients who are looking to improve their lives and self-esteem by crushing a few tiny seeds of unwelcome gayness (exaggeration mine).

    While other courts have noted that bans on conversion therapy are, in fact, restrictions on dangerous, and often fraudulent, commercial practices that are well within the regulatory authority of city or state lawmakers, our adversaries see them as unconstitutional violations of free speech, or in the case of the ADF’s orthodox Jewish therapist from Brooklyn, an impermissible curb on religious freedom. 

    Alert readers will notice that we recently reported that the state of New York banned conversion therapy, and they may wonder why the ADF is instead focused on the City of New York’s ordinance. According to Professor Art Leonard of the New York Law School, the state law applies to minors, while the city law is one of the broadest bans on conversion therapy in the country. As such, it’s a fatter target for our friends at the ADF, who are aiming for legal precedents. Professor Leonard goes into impressive detail on both of these cases on his blog.

    While we’re on this subject, I think I’ve wondered aloud before how Jay Sekulow wound up on the President’s legal team. Sekulow is the head of the American Center for Law and Justice, another one of these ADF-like antigay operations parading obnoxiously through our court system. It’s as if Shannon Minter turned up in court to represent Hillary Clinton on a DUI charge, or Evan Wolfson appeared as Jeff Bezos’s divorce lawyer. It’s odd.

    It’s That Time Again

    We are witnessing the start of state legislative sessions around the country, a harrowing time when our valiant community feels momentarily inundated with hateful proposals. I say “momentarily,” but that’s only because I’ve experienced so many of these sessions that they seem, in retrospect, to have come and gone in a flash—most of them orchestrated by players on a stage, full of sound and fury, signifying nothing. 

    Except, of course, for the relative handful that survive the process every year. Sometimes it’s only one or two, out of several hundred anti-LGBT bills introduced. Often, whatever survives the process winds up in court. But whatever happens, it’s frustrating to write news story after news story about one of these insidious projects, only to see the thing killed off and then be brought back to life, only to see it shelved in committee, and then to be tacked onto some unrelated piece of legislation, ultimately to have the whole thing die in the end after three or six months of pointless machinations. 

    In my early days, I would lament the wasted emotional and intellectual investments I had made in pursuit of the fine points of said legislation and in furtherance of subtle insights into the strategic aims of this or that lawmaker. Why had I bothered? And then another session would start and I’d do the same thing all over again, but with a slightly jaded attitude, until I finally decided to just wait until the last days of all of these sessions and see what horrors were still in play.

    This tactic allows me to ignore dozens of scary emails with headlines like: “Tennessee aims to incarcerate unmarried lesbians!” or, “Triple property taxes ahead for transgender Alabamans?” In the end, we usually wind up with something out of Mississippi, like the new proposal to defend teachers when they deliberately default to the birth sex of transgender students. 

    And we get in trouble for advocating “identity politics?” Is this really one of the early priorities for legislators in the state that wins the award for most bottom of the barrel rankings in the U.S.? The bill, now titled HB 1176, also restates Mississippi’s most recent antigay law, the 2016 measure that allows anyone to refuse services based on their sincere religious beliefs (or some such sanctimonious language). That law managed to escape any real court scrutiny after the High Court left it alone based on a standing technicality. I guess no plaintiffs had been actually injured by the law, so no one had grounds to sue. 

    We will no doubt encounter a raft of bathroom bills and “religious freedom” bills and the whole kit and caboodle before we’re through. We’ll ignore most of them for as long as we can, starting with the anti-trans birth certificate bill out of Utah and a trio of anti-trans proposals out of South Dakota.

    Randy Brits Must Pay for Public Sexcapades

    Now here’s some grist for our mill. Check out this headline from the London tabloid The Sun: “Gay porn star fined £1,000 for late night orgy on London Underground train in front of shocked passengers!” 

    In July of 2017, porn star George Mason and his sexy pal Nicholas Mullen put on quite the show on the Northern Line between Leicester Square and London Waterloo, filming themselves and managing to pack “an array of sexual activity” into the short trip. According to The Sun, Mason later posted the film on Twitter and boasted: “It is outrageously horny we could not stop ourselves.” He and Mullen have recently pleaded guilty to “outraging public decency” at the Westminster Magistrates Court. 

    According to the prosecutor in the case, Mason’s porn website, where he had hoped to profit from the naughty romp, “is not for the vicar’s tea party.” The magistrate, Lucinda Lubbock, who examined still photos of the scandalous display, called the whole affair “a very unpleasant and serious offense.” 

    I don’t know, dear readers. There’s something very British about the whole thing. And I mean that in a good way. Oh, and speaking of porn stars, did you read that Stormy Daniels is bisexual? That means she is officially part of our LGBT alphabet soup, although I think there should be a special category for women who have sex with Donald Trump. And, no, that designation is not getting lumped in with our community.  

    Phoenix Rising

    I suppose we should all get ready for the next version of the Masterpiece Cakeshop debate, although it’s not clear in what form it will slither its way back up to the top court. You recall that the florist out of Washington is still litigating her resistance to serving a gay wedding. And Masterpiece Cakeshop baker Jack Phillips is fighting another case against Colorado’s gay rights ordinance; this time he’s in conflict with a transgender client who wanted a blue and pink cake to symbolize her transition. 

    Meanwhile, the Arizona Supreme Court has just heard arguments from the owners of “Brush and Nib Studios,” a printing company that refuses to make invitations for same-sex weddings. In a quirk of the case that I have not bothered to figure out, the two women who own this business are looking for a declaration from the court, a carte blanche if you will to ignore a Phoenix ordinance that forbids LGBT discrimination in public accommodation. Usually, courts do not weigh in on theoretical debates, restricting themselves to actual cases and controversies. But here, the women have not actually confronted a gay customer. 

    Putting that mystery aside for now, the lower courts have ruled in favor of Phoenix. It was noteworthy that the state appellate court ruled for Phoenix a short time after the Supreme Court handed down their murky decision in Masterpiece Cakeshop, in a series of opinions that rested in the end on a technicality that favored the bad baker. The bulk of the main Masterpiece opinion seemed to support the legitimacy of civil rights laws like the one in Colorado, and the one in Phoenix. But it’s far from clear, which is why all of these similar cases are still bubbling up to the surface.

    Meanwhile, friendly state lawmakers have introduced gay rights bills in both the house and the senate in an effort to make Arizona the 21st state to protect us from discrimination. We will see. 

    Hog Wild

    In other state supreme court news, the Arkansas top court has dismantled a lower court injunction that had allowed Fayetteville’s gay rights ordinance to stay in effect despite the fact that it conflicts with an insidious state statute that prevents local entities from extending civil rights beyond the scope of state laws. Got that? Trust me, it was not a ruling in our favor. 

    And as for the main state law involved here, it’s a half-brother to the Colorado Amendment that was struck down in Romer v Evans. That amendment barred localities from protecting gays from discrimination. This law has the same effect, but it does so without mentioning “gay” or “sexual orientation.” Since LGBTs are the only category not covered under state law that would logically be covered under a local ordinance, the law effectively writes us out of the political process without naming us specifically.

    The Hog Court did not determine whether or not the state law is constitutional, because that question was not at issue in this particular litigation. I assume that the ACLU will bring another lawsuit to address the legal fundamentals here, because I can’t imagine that a semantic sleight of hand is enough to finesse what looks like a major breach of constitutional rights. 

    Finally, in unrelated news, ousted Kentucky county clerk Kim Davis could be on the hook for some $225,000 in legal bills stemming from her failed effort to flout the Supreme Court’s marriage equality ruling in 2015. I know you remember the obnoxious publicity hound who refused to fill out marriage paperwork for two men in Rowan County.

    After jail time and litigation conducted by the ACLU, the civil libertarians won their constitutional case and their attorney’s fees, as is always the way with the victors of civil rights lawsuits. The state of Kentucky insists that the legal fees should be paid by Davis, not by the state. She, in turn, believes the opposite. The matter was wrangled before the U.S. Court of Appeals for the Sixth Circuit on January 31, and guess what? Someone, either Davis or Kentucky, is also going to be on the hook for whatever it’s costing the ACLU to argue on appeal. Ka ching, ka ching. We’ll keep you posted.