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    Ann Rostow: The Era of Bruce Crow?

    By Ann Rostow

    The Era of Bruce Crow?

    Over the next two or three years, maybe sooner, the Supreme Court will face a yes-or-no question. Is sexual orientation a neutral feature of human sexuality? Or is homosexuality a mildly unsavory deviation from the norm, to be respected and tolerated, but not to be recognized as a protected category under American law?

    This question is fundamental to gay and lesbian civil rights, and it underlies our four major civil rights victories at the High Court. But those victories (Romer, Lawrence, Windsor and Obergefell) sidestepped the core question, and left us vulnerable to a killing blow. At present, the question is open. But what if the question was closed?

    What if a government can’t outlaw our relationships, but can still allow others to discriminate? What if the Supreme Court says states can restrict some of the rights of gay couples? What if conservative states were given thumbs up to protect companies and individuals that look askance at homosexuality on account of faith or for some other reason? What if the High Court ruled that federal civil rights laws like Title VII and Title IX definitely exclude gay men and lesbians?

    I think that if you forced the Court to answer the core question, the Court would say yes, sexual orientation is neutral. Gay discrimination is just as unconstitutional as race bias. Sexual orientation discrimination is a form of sex discrimination under federal case law. No faith-based actor has the right to use religion as an excuse to discriminate.

    But the scary thing is that courts aren’t asked direct questions, and the High Court often seeks to make limited rulings that take small steps in line with larger principles. In the cases that may soon reach the Court, however, those small steps may be the equivalent of saying, “No.” In other words, if the Court doesn’t see the full implications of its rulings, it could relegate gays and lesbians to second class status, almost by accident.

    Business as Unusual

    One case that we’ve been watching is the Masterpiece Cakeshop appeal out of Colorado, where a Christian baker fell afoul of state law when he declined to sell a wedding cake to two gay men. That case has been petitioned to the High Court, repeatedly scheduled for conference, and repeatedly delayed. Now it has been put off until the April 21 conference, when the eight justices will have been joined for the first time by a ninth justice, one who is demonstrably susceptible to religious claims.

    It takes four justices to accept review of a case. Will Justice Gorsuch go out of his way to put this insidious contest on the docket? Or will he play it safe and wait for the next gay wedding conflict to rise through the courts? I think it’s clear that Masterpiece Cakeshop has the support of the three conservatives on the High Court, otherwise the Court would have rejected the petition long ago. The same analysis suggests that Justice Kennedy might like to avoid the issue, otherwise the Court would already have had four votes to accept review.

    Both Kennedy and Gorsuch are on record in favor of the idea that the owner of a private company can rely on religious faith to circumvent federal law, unless the government can show that it has a compelling reason for the law and that there are no other ways to serve that purpose. You remember, of course, that Hobby Lobby refused to offer contraceptive insurance as required by Obamacare, and that the High Court pointed out that since the government offered an alternative process to churches, it should offer the same alternative to faith objectors. The alternative consisted of filling out a form and allowing a third party to handle the offending insurance policy, an option that itself was challenged in court in a case in which Gorsuch sided with the religious actors.

    It’s not encouraging, is it? An antigay Christian may be heading to the Supreme Court to argue he has the right to ignore a state anti-discrimination law that protects gays. The Supreme Court, in turn, is now populated by a 5–4 faith-friendly majority. And throughout the red states, lawmakers are proposing statutes to protect business owners and others who seek a faith-based excuse for refusing service to gay customers. All they need is a green light from the Supreme Court and half the country will enact laws that enshrine and protect prejudice.

    Putting the Sex in Sexual Orientation

    The second case, or type of case, which will define our future is the one that will ask the Court whether sexual orientation discrimination is a subset of sex discrimination. Sex discrimination is illegal under federal law in the workplace (Title VII), in public education (Title IX) and in housing, ergo if sexual orientation is a form of sex discrimination, we are sitting pretty.

    Not only would we be covered under various federal statutes, but we would fall under the protection of decades of case law that have expanded the scope of sex discrimination in myriad directions. Cases of gay discrimination would be judged with heightened scrutiny by virtue of their new status as sex discrimination (which requires intermediate scrutiny). That means that even those who object to gays and lesbians on religious grounds would have no traction. In his Hobby Lobby opinion, Justice Alito observed that not even the Hobby Lobby owners would have the right to avoid civil rights laws, and nor would anyone else. Elevating our status would pre-empt all of those religious claims, and all of those antigay “religious freedom” state laws would die in committee or never exist at all.

    Conversely, a loss in a case like this would be devastating. At the moment, conservative courts can point out that the words “sexual orientation” do not appear in Title VII, for example, and lawyers can argue that the 1964 Congress never intended the Civil Rights Act to protect gays and lesbians. Fine, we can argue against both points, and we do. But if the Supreme Court were to rule that sexual orientation is not a form of sex discrimination, the impact would be as if Title VII or Title IX were rewritten to specify that sexual orientation is not included under the law’s protections. Such a ruling would usher in a dark age of unchecked discrimination in the workplace and elsewhere.

    You may recall that we won a huge Title VII employment discrimination case as the last issue went to press, an 8–3 decision by the full U.S. Court of Appeals for the Seventh Circuit, ruling that sexual orientation was a form of impermissible sex discrimination. But it looks as if that case will not be immediately appealed to the High Court. Instead, the plaintiff, an Indiana community college professor, will argue the merits of her suit in lower court.

    But two other Title VII cases presenting the same issue have recently emerged from the Eleventh Circuit and the Second Circuit where three-judge panels ruled (to simplify) that, but for precedent, gay plaintiffs should be able to sue under Title VII. Technically, we lost those cases, but, emotionally, we won. Both lawsuits could rise to the full appellate courts, or be appealed straight to the Supreme Court, depending on legal strategy.

    It’s only a matter of time before this issue hits the nine justices. And again, their decision will rest on their (possibly subconscious) answer to the question of whether sexual orientation is a neutral human feature. Or not.

    Death Be Proud

    I have related legal stories on my list this week: a win under the Fair Housing Act for a transgender lesbian family, a federal decision forcing Florida to revise death certificates for gay widows and widowers, and a good ruling for gay families by the Nebraska Supreme Court ending laws against gay foster parents and gay adoptions of wards of the state. By rights I should be optimistic, but maybe I’m just in a discouraged mood for some reason. (I’ll ring for the bartender.)

    My mood is not well served by the news out of Chechnya, where authorities have embarked on an offensive against gay men, triggered by Russian civil rights activists who are trying to draw attention to the country’s antigay obsessions. Their efforts, although not targeted within Chechnya, produced a backlash in this particularly unstable region, prompting the roundup of roughly 100 men, many of whom were reportedly killed, others tortured and imprisoned somewhere. United Nations Ambassador Nikki Haley demanded an investigation and repeated the U.S. opposition to discrimination of all kinds, including sexual orientation.

    That’s nice, but the Chechen leader, Alvi Karimov, said the reports were unfounded, explaining that first, there are no homosexuals in Chechnya, and second, if there were, they would be killed by their own relatives. So, I’m thinking he’s not going to launch an investigation.

    Fearless Woman

    Stepping away from community news for a minute, what do you think of controversy surrounding the “Fearless Girl” statue on Wall Street? Fearless Girl was given permission to stay in place for a while, standing a few feet away from the famous charging bull statute, head held high and arms akimbo. The guy who made the bull statute is claiming that the juxtaposition of Fearless Girl distorts his artistic message and therefore is a form of copyright infringement.

    At first I scoffed at this, particularly after reading that this artist is particularly litigious, an unattractive characteristic in anyone. But after thinking twice, I can’t help but agree that Fearless Girl transforms the bull into a machismo menace. Whatever it was before is up for debate. Was it unfettered capitalism? Progress on the rampage? Materialism bull-sonified? Animal spirits? It doesn’t matter. Now it’s a threatening force, and Fearless Girl is facing it down like the guy in Tiananmen Square. She redefines the bull, so the artist has a point.

    As someone in a comments section pointed out, what if a third artist produced yet another statue of an older boy with his arm out, palm facing the bull, positioned just in front of Fearless Girl as if to protect her. The montage would evolve into a different artistic scenario, and Fearless Girl would be diminished accordingly.

    So Fearless Girl should be placed elsewhere, in my view. But then I read yet another interesting article on the subject, one which asked why the notion of “girl power” is so readily praised, while the hard charging adult female is beset by misogyny.

    The answer is clear. Little girls are no threat to anyone. They’re adorable, no more so when they strive for achievement, play baseball, climb trees and win math contests. It’s only when they run companies, run for office, run law firms or write gaming code that they start to grate on the nerves. What if, instead of Fearless Girl, an artist placed a female banker in that spot, holding a briefcase and checking her smart phone? Leaving aside the pros and cons of Wall Street, would people have found that image as engaging?

    A recent article in the not-failing The New York Times showed female Supreme Court justices are interrupted by their male colleagues at far higher rates than male justices. They are even interrupted by lawyers during oral argument, which is considered rude and counterproductive.

    And for anyone who watches cable news panels, the same phenomenon is striking—blowhard male pundits speak over women or cut them off, even when the blowhard’s observations are less than insightful. The flip side of that coin, of course, is the blustering outrage from Mr. Blowhard if a woman tries to interrupt his meandering discourse. “If you don’t mind, I’d like to finish my point!”

    I just read a book called Because of Sex that gave an account of ten major High Court Title VII sex discrimination cases, landmark opinions that built the law from a few words into the complex juggernaut of female empowerment that it is today. One of those cases told the story of the brash, tough-talking Price Waterhouse associate Ann Hopkins, who fought the unspoken restrictions on female partners that relegated her to lower management even as she outshone her male peers in every way. Being abrasive and foul-mouthed was no impediment for the men at the firm, but Hopkins was advised to wear more make-up and tone it down if she wanted to advance. The High Court ruled that was sex discrimination, and after ten years of litigation, Hopkins went back to Price Waterhouse as a partner.

    Now that’s fearless.