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    Ann Rostow: She’s Back!

    By Ann Rostow–

    She’s Back!

    Do you remember Kim Davis? Yes, you’re right. She’s the county clerk from somewhere in Kentucky who refused to conduct same-sex marriages after the High Court ruled in our favor back in June, 2015. That’s over seven years ago, and that’s how long her various court cases have been meandering back and forth through our legal system thanks to her obsessive attorneys from the Liberty Counsel. On Thursday, September 29, the U.S. Court of Appeals for the Sixth Circuit ruled that Davis, who was sued for rejecting the marriage of two men, did not have qualified immunity from the lawsuit, since she should have been aware her actions were illegal.

    Say what? Of course, she didn’t have qualified immunity—that’s the shield against personal liability quite rightly enjoyed by public servants who might inadvertently trespass on someone’s constitutional rights. But wasn’t that detail resolved many years ago? After all, she has long since lost the original lawsuit, or at least I thought she had. Qualified immunity does not apply to a public servant who knowingly breaks the law, and in this case, Davis had been repeatedly told she was obliged to conduct same-sex marriages. 

    According to the Lexington Herald Leader, this is the second time that the Sixth Circuit delivered the bad news about qualified immunity. Normally, I would delve into such an anomaly. After all, most courts don’t allow you to raise the same issue after it has already been litigated as part of the same case. Here, however, a wave of ennui compels me to ignore the inner workings of the Davis case. It’s enough to know that she has lost whatever it was, and that she still awaits a jury trial on punitive damages. Oh, and Mat Staver of the Liberty Counsel says he will ask the full Sixth Circuit to reconsider their recent ruling. Somehow, I doubt they’ll be up for that.

    Fun Times

    Before we leave the enthralling topic of qualified immunity, I was just noticing a petition for Supreme Court review in a case against the Parma, Ohio, police department. The top cops over in Parma put a man in jail for three days after he created a Facebook page that made fun of the actual Parma police page. The man, Anthony Novak, was charged with a felony, but eventually, he was acquitted by a jury and sued the police. However, the cops involved have successfully argued that they cannot be sued, because they believed their actions were legal, and Novak is now asking the High Court to decide the matter. 

    Novak had been charged with disrupting the functions of the police department after several people had phoned a (nonemergency) police number to complain about his Facebook page. It was later discovered that none of the callers thought Novak’s page was the real deal, even though the grand jury was told that they were all confused by it. In other words, the Cuyahoga County prosecutor lied in order to get an indictment, and Novak arguably did not violate the statute against “disrupting” the police.

    Novak’s page was only up for twelve hours before he recognized that the Parma authorities were coming after him, and he took it down. He only posted six items, all of which were patently absurd and could not possibly have been taken seriously by citizens.  

    “Tuesday will be our official stay inside and catch up with the family day in Parma!” one post read. “The Parma Police Department has set this day to allow families to come together in an effort to reduce future crime by having children have well balanced communication with their families. Anyone’s [sic] seen outside their home from the hours of 12 pm–9 pm will be arrested. Thank you.”

    Another suggested that restrictions against feeding homeless people were designed: “to have the homeless population eventually leave our city due to starvation.”

    After the aforementioned U.S. Court of Appeals for the Sixth Circuit first ruled that the police lacked qualified immunity in this case, the matter went back to federal court and came back to the Sixth Circuit on some other issue. At that point the appellate court ruled that the cops did, in fact, have immunity. (Please check out my earlier annoyance at the Sixth Circuit in the Davis case discussed previously to understand why we will not be getting to the bottom of this discrepancy.) Among the interested friends of the court was The Onion satiric newspaper, which wrote a pretty funny, but also serious, brief in support of Novak’s petition. 

    Describing themselves as “the world’s leading news publication,” with a “daily readership of 4.3 trillion” that has “grown into the single most powerful and influential organization in human history,” The Onion goes on to defend the First Amendment’s protections for parody, and particularly for parody that targets governments or groups in authority, like the police. 

    Full of Foolish Song

    So, what’s new this week, you ask? 

    Well, I hadn’t realized that Herschel Walker has a conservative gay son, who supported him for a time but has recently turned against his wannabe Senator father. In truth, there are a lot of things I hadn’t realized about Herschel Walker before his candidacy, and I very much hope Mr. Walker will lose the election and slip back into the shadows where I won’t have to learn anything new about him ever again. The headline that grabbed me this time around read: “Gay Influencer Says GOP Candidate Dad Threatened to Kill Him and His Mom as Abortion News Breaks.” Okay then!

    I see as well that a Catholic school in Indianapolis has gotten thumbs up from a district court after firing a lesbian guidance counselor, Shelly Fitzgerald, who had worked for the Roncalli High School for 15 years. According to the judge’s ruling, during these 15 years, “Fitzgerald received overwhelmingly positive performance reviews … [the principal] did not believe he had ‘ever received more positive comments about an employee when seeking feedback than [he] did when getting feedback from folks about their work … with Fitzgerald.’” 

    Nor did any of these performance reviews ever mention any religious or ministry activities associated with Fitzgerald’s work. Nonetheless, the court relied on a number of stock religious lines in Roncalli’s employment contracts to determine that Fitzgerald was legally fired under the “ministerial exception.” That’s the exception, beefed up by the 7–2 High Court in 2020, that lets churches and religious organizations make hiring decisions based on faith. You don’t want to hire a Jewish guy to teach your Christian Sunday school class? Fine. But should you be allowed to fire your gay organist or your lesbian guidance counselor? Sam Alito says that’s fine too.

    Oh, and Cuba has voted to legalize same-sex marriage, which is nice. Are we allowed to go to Cuba these days? I’ve never been to many Caribbean islands, but Cuba seems particularly enticing just because it’s been off limits for my entire lifetime. I also can’t help thinking of those scenes in Guys and Dolls when Sky Masterson gets Sister Sarah to go to dinner with him, takes her to Havana and gets her drunk on what he calls milk punch. It comes in a coconut, so the audience knows it’s the Runyonesque version of a roofie, but because it’s a musical, it’s all fine with us. Plus, that girl needed to loosen up! There was a reason she’d “never been in love before.” She’d never gotten sloshed in Cuba with a handsome gambler before.

    Anyway, I’d like to go have dinner in Havana and drink something out of a coconut.

    Kids These Days

    Here’s another survey that shows the percentage of people who call themselves LGBTQ+ is continuing to rise, although part of me wonders whether or not that’s because we keep expanding our community acronym. Also, once you stick a plus sign on there, it’s like anything goes, right? How about our straight allies? I love those guys! C’mon over and stand under the plus sign everyone. Soon we’ll have well over 50 percent of Americans covered by our designation and we won’t even be a minority anymore.

    But I’m being unpleasant. More than half of the LGBTQ+ gang are bisexuals, and the increase is led by the kids from Gen Z, indeed 15 percent of Gen Z adults are bisexual. 

    I just looked them up and Gen Zs were born between 1997 and 2012, so they are now between the ages of 10 and 25. Who comes up with these rules anyway, and why did the Silent Generation and Boomers get a full 20 years (the Greatest got 25) while other generations are whittled down to 15? Oh, and what are we going to name the generation that comes after Z? They’re already here!

    Where was I? Oh yes, the proliferation of bisexuals. I’m thinking that if I were in my late teens or early twenties and I wasn’t gay, I’m not sure I would want to think of myself as “straight.” It’s boring. Bisexual gives you a lot more options, and it doesn’t really cost anything in terms of social status. According to this survey (from the Williams Institute, if you must know) bisexual workers are more likely to be in the closet than gay men or lesbians. And non-trans bisexual workers had the least amount of antigay workplace discrimination, I’m guessing because they were all pretending to be straight.  

    The report included Captain Obvious statements like the following:

    “LGBTQ+ employees overall are more likely to experience workplace discrimination than straight people, and within those identities … transgender people are significantly more vulnerable to being fired or not hired based on their identity, as well as LGBTQ+ people of color.” 

    Thought provoking!

    Oh, before I go, I was just closing a tab that included all the years of the various generations, and I couldn’t help noticing the “Lost Generation” born from 1893 to 1900. Only seven years! No wonder they were lost, poor devils. I didn’t know that we had official “generations” back then anyway. 

    What Would Kennedy Do?

    As the first Monday in October rolled around, much was made of the start of the Supreme Court’s 2022–2023 session, God help us. And as everyone is happy to point out, the Court is poised to deal with a range of controversial issues, including our favorite subject, GLBT civil rights.

    Ironically, we will soon find ourselves back in Colorado, scene of the horrific Amendment 2 that we defeated in Romer v Evans as well as home to the Masterpiece Cakeshop, where some allegedly tactless commissioners caused the High Court to issue a one-time pass to an antigay Christian baker. Colorado is also the former home of Justice Neil Gorsuch, the quirky textualist who loves religious freedom yet wrote a major GLBT rights opinion two years ago in Bostock v Clayton County.

    Neil Gorsuch is also a former clerk of Anthony Kennedy, the man who penned our four major GLBT victories beginning with Romer in 1996, continuing with Lawrence in 2003 (ending sodomy laws), Windsor in 2013 (striking the Defense of Marriage Act), and Obergefell in 2015 (legalizing marriage). From what I gather, Gorsuch is very respectful and fond of Kennedy. And as we just noted, he recently wrote a very strong civil rights opinion, ruling that gay and transgender employees were by definition included under Title VII’s ban on sex discrimination in the workplace. 

    Then there are his religious freedom votes, which are uniformly in favor of the various religious actors who have come before the High Court during his tenure. This time around, the question is specifically about speech and does not technically involve the right to religious freedom. 

    The plaintiff is a Christian web designer who objects to Colorado’s GLBT civil rights law, which would prevent her from discriminating against gay couples who might want websites for their weddings. But the Supreme Court has stated that it will not examine whether or not her religion should allow her to avoid state law. Nor will it consider whether or not to overturn a 1990 decision that says faith cannot be used as an excuse to ignore generally applicable laws. 

    Instead, the High Court will be reviewing whether or not civil rights laws like the one in Colorado can trespass on an artist’s First Amendment right to free speech. I’m sure her religion will enter into this review, but it’s time now to sharpen up our description of this litigation, which is wrongly being presented in the press as a run-of-the-mill religious freedom case. It’s not.  It’s a free speech case, where the speech happens to be religious. 

    So, what will Gorsuch do?

    GLBT Fortnight in Review
    Published on October 6, 2022