By Ann Rostow–
Standing Together
I’ve always liked the fact that under U.S. law, you can’t file a civil case on theoretical grounds. You must always have a concrete claim, and you can’t bring a lawsuit unless the court’s decision can resolve your dispute. Without the rules on standing, as it’s called, anyone and her brother could file suit willy-nilly, complaining about the slightest thing. Courts could be called on to adjudicate hypothetical interpretations of law, taking on an all-powerful role. It would be chaos!
Our side (the crazy wacky wonderful GLBTLMNOP community and our loyal allies) got tripped up on standing laws when we fought state statutes banning sodomy. Most plaintiffs, or would-be plaintiffs, objected to sodomy laws on principle. It’s not as if they had been personally arrested and thrown in the clink. Thus, our court opponents would point out that we lacked standing to sue, and we in turn would argue that it was difficult to conduct ourselves as responsible citizens in a state where making love to our partners was considered a criminal act. Isn’t that in itself a concrete hardship?
Sometimes we won that sub-argument and sometimes we lost, but as you recall, we subsequently found a case where a guy actually did wind up in jail after cops burst into his apartment and caught him having sex, so the question of standing never arose as the Supreme Court considered the fate of sodomy laws in Lawrence v Texas.
I’m getting into this column, Rachel Maddow style, because issues of “standing” are in the GLBT news twice this week. And I ask your forgiveness in advance, because it often annoys me when our beloved Rachel leads us through a tangled thicket of arcane back stories prior to coming forward with a relatively straightforward piece of new intelligence.
First, Lambda Legal is continuing the fight against Mississippi’s HB 1523, a religious freedom bill on steroids that gives every bozo in the Yahoo State the right to discriminate against gay couples and a range of other malfeasants without consequence. We attacked the bill in court and won the first round, getting HB 1523 put on hold while the state of Mississippi appealed to the U.S. Court of Appeals for the Fifth Circuit.
The Fifth Circuit ruled that we lacked standing to challenge the law, because none of the plaintiffs had yet to suffer a discriminatory act. As such, the panel threw out our lower court victory, reinstated the law, and refused to reconsider this decision as a full court. And I think most of our readers know what we do when we’ve lost at the appellate level: Supreme Court Bayyyy Beeee!
Because the Fifth Circuit did not review the underlying law, HB 1523, our petition to the High Court asks the Court simply to consider the matter of standing. No, we have not been thrown out of the clerk’s office or rejected by the wedding planner in Jackson or another one of the handful of cities in the state that protect us against GLBT bias. But like the sodomy laws of yore, we have been singled out for discrimination in the future. The Mississippi legislature has put targets on our backs. They are big and orange and there are lots of hunters out there taking aim. Isn’t that grounds for a concrete injury?
Second, the National Center for Lesbian Rights and GLAD are leading the charge against Trump’s gratuitous attack on transgender soldiers. In an unexpected Twitter message last July, Trump announced a blanket ban on transgenders in the military based, ostensibly, on health budget concerns. In what was reportedly a ham-fisted attempt to resolve some debate in the House, Trump appeared unaware of the fact that many hundreds of transgender men and women have long been in uniform, and his financial excuses were instantly dismissed by actual numbers; transgender medical bills cost the military less than $10 million a year, versus $85 million annually for Viagra-type drugs.
Oh, and let’s not forget that President Obama issued an order clearing the way for transgender soldiers to serve openly back in June of 2016. As a result, everyone came forward only to be tweeted into limbo out of the blue a year later.
Into the breach came Defense Secretary Mattis, with a vague set of “guidelines” that appeared to put the brakes on the anti-trans train. But the guidelines aren’t that vague. Transgender soldiers and sailors won’t be kicked out today or tomorrow, but they are still likely to be ousted starting March 23, 2018. Because of this brief delay, the U.S. government has the nerve to argue in court that transgender plaintiffs lack standing to sue because no one has done anything to them … yet.
These men and women have been excoriated by the Commander in Chief and told that they will be kicked out of the service in a few months. Isn’t that in itself a travesty? Isn’t that a controversy? Isn’t that a concrete blow?
The NCLR just filed a reply to the government in D.C. federal court, meanwhile another federal case against the transgender ban continues in California, led by Equality California.
Jeff Sessions: Infuriating Little Munchkin
Let’s stick with the transgender community for another section, because it was a little nauseating to see these headlines praising Jeff Sessions for sending a federal lawyer to pursue hate crime charges against a man who murdered a gender bending gay teen.
Oooooo! Put your hands together for Attorney General Sessions! He’s against people murdering sixteen-year-old kids. Even transgender kids. He’s not so bad!
Yes, he is, people!
I’m not even getting into the story of the Iowa victim, Kedarie Johnson, a gay kid who did not consider himself transgender, but gender fluid. Nor will I point out that adding a federal hate crime charge to a murder rap is basically a symbolic act. I’ll just suggest to you that, regardless of this hate crime prosecution, Jeff Sessions remains one of the cruelest, narrowest, meanest little curs this side of Gaybash, U.S.A. And while Trump is spending his time in a bumbling effort to undo the Obama legacy, Mr. Sessions is actually doing a fairly good job of reversing the GLBT-friendly policies we enjoyed under the Obama Justice Department.
Last week, we saw some headlines claiming Sessions had reversed or repealed transgender protections under federal law. In truth, he just changed the interpretation of Title VII and Title IX from one that believes sexual orientation and gender identity are protected under laws that ban sex discrimination, to one that insists these federal laws do not cover GLBT workers or students under any circumstances.
Happily, for us (I hope), it will be up to the Supreme Court to determine which interpretation holds sway in the future. Here’s hoping as well that the High Court takes up these issues sooner rather than later.
Take the Case!
Speaking of those cases, Lambda Legal is still waiting for the Supremes to decide whether to hear the Title VII case of a Georgia lesbian who lost her job as a security guard for a hospital. Last week, 76 major U.S. Corporations added their names to a brief in support of Lambda’s petition. In another supporting brief, 17 states plus the District of Columbia urged the Court to accept review.
The question of how we define “sex discrimination” is pressing on the Court now. First, just think about the reversal we’ve seen from one Justice Department to the next. It’s not healthy for the nation to flip flop on fundamental aspects of civil rights law from one political election to the next.
Second, the appellate courts are split on the question. The full Seventh Circuit recently ruled that a community college in Indiana could be liable for firing a lesbian plaintiff under Title VII’s ban on sex discrimination. The Eleventh Circuit ruled otherwise in the Georgia case just mentioned. The full bench of the Second Circuit is about to rule on another Title VII sex discrimination case involving the estate of a gay skydiving instructor.
Third, we need some clarity on gay law. It’s all over the map these days with rogue rulings, far right justice department policies, and the flood of bigotry that may have begun with white supremacy, but now contains all the diseased flotsam and jetsam that those dark waters have collected along their path. Without bashing Justice Kennedy’s deliberate ambiguity once again, I just pray he will put a stamp on his legacy as a champion of gay civil rights by writing one more opinion that puts every doubt to rest and answers the questions he has wriggled out from under so far: Is sexual orientation a neutral human feature? Are we equal?
Can he just say, “Yes”? Can he put that in writing?
Jabberwocky
Here is Jeff Sessions’ Justice Department, writing another hateful missive to us all, this time articulating the theory that religious freedom takes precedent over every other constitutional right you might raise:
“As James Madison explained in his Memorial and Remonstrance Against Religious Assessments, the free exercise of religion ‘is in its nature an unalienable right’ because the duty owed to one’s Creator ‘is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.’”
You know, I’m not bothering to look up the writings of James Madison to see if the man actually wrote that and/or in what context. I just have to say that it is wrong. Period. If everyone decided that religious duty could outweigh the claims of civil society, we would have no more civil society. Does anyone out there believe Islamic terrorists have a legitimate right to put their Jihad obligations above the rule of law and let’s say, plant a giant bomb in Madison Square Garden? No. This comment, Madisonian or not, is patently not just false, but nonsensical.
Yet it sort of sounds okay if you don’t think about it too hard, doesn’t it? Sessions’ Justice Department has filled several pages of a recent memorandum on “religious freedom” with this kind of verbal horse pucky, and with few exceptions, no one has pointed out that it’s not just wrong, but senseless.
This is true of the antigay briefs coming out of Justice, and the various other pronouncements and pontifications discussed earlier and in previous columns. Like Trump, Jeff Sessions is an emperor with no clothes. Not just conservative, but incompetent and dangerous. I can’t stand him.
The Zinke Is In
Now that it’s clear this will be a rant column, let me finish by dumping a big pile of [deleted] on Interior Secretary Ryan Zinke, the horse’s ass who I believe was nominated after Don Junior met and liked him because they both hunt or something.
Zinke, as you might recall, is one of those Trump cabinet members who has been accused of excessive expense accounts and frequent flying. In Zinke’s case, he flew to Caribbean islands and ski resorts for GOP fundraising trips, which are not supposed to be conflated with public duties. He’s also the one that recently earned headlines for flying a personal flag on top of the headquarters of the Interior Department whenever he was in his office. Apparently, the ridiculous pennant would be lowered when Zinke went home for the day.
Keep in mind that no other cabinet secretary does anything like this, nor does the President of the United States, although I read that Queen Elizabeth has a flag that is raised when she is at Buckingham Palace.
I bring this pompous puffball to your attention because the other day, October 11, we held a ceremony at the new Stonewall National Monument, a 7-acre space near the famous Stonewall bar and encompassing Christopher Park. Like other national monuments, the Stonewall site is governed by the Federal Park Service, under the auspices of the Department of the Interior.
At the last minute before the Park Service was set to raise the Rainbow Flag, however, the federal government dropped out of the event, removed their representative from the speakers’ slate and insisted that they “just learned” that the monument’s flagpole was not actually on federal lands. In a strange press release, the park service distanced itself from the whole thing and ceded the rainbow flagpole to New York City in an effort, it seemed, to avoid having a rainbow flag raised on federal property.
Make of it all what you will. I’m having a drink.
arostow@aol.com
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