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    Ann Rostow: Things Fall Apart; The Center Cannot Not Hold

    By Ann Rostow–

    Things Fall Apart; The Center Cannot Not Hold

    Where to begin? Since this is a GLBT news column, our coverage of legal news is geared either to gay and trans cases, or to issues that commonly face our community; freedom of speech, religious freedom, and so forth. We don’t randomly spend time and ink on interesting legal news that falls outside the ambit of our own concerns. Abortion? Well, of course, it’s a matter of some significance to all Americans one way or another. But it’s not exactly up our alley.

    Until it is.

    Before we start, the leaked opinion in Dobbs v Jackson is a first draft by Sam Alito, written in February. It sounds like him—the worst, meanest, dumbest justice of our lifetimes with the possible exception of Thomas. I haven’t read all 80 something pages, but I’ve read enough to learn that Alito calls Roe “egregiously wrong from the start,” and flatly overrules both Roe and its sister pro-choice ruling, Casey. Even if Alito has four more votes to send us all back to the 1960s, it’s not clear that he has four more votes for this particular draft. Indeed, most drafts get circulated between the justices several times before they are released as final opinions.

    That said, this is a bombshell. The fight over abortion has always been one of degree. When is a fetus viable? When do we impose specific religious beliefs on the entire society? What restrictions comport with Roe and Casey; how far can a state push its anti-abortion statutes? But have any of us truly imagined that abortion could be completely outlawed throughout most of the country? Have any of us truly imagined that women would be forced to carry unwanted pregnancies to term, even those conceived in rape or incest, and even those that might render a woman infertile or worse? Have any of us truly imagined that the State, rather than the individual, would be placed in charge of the decision to become a parent?

    This assault on women’s civil rights is unfathomable, and it directly impacts the future of GLBT rights. Because the Supreme Court has tilted. Not only have the five conservatives gone all in, but someone has fractured two centuries of trust by leaking the decision months ahead of schedule. Comity is gone. Tradition is gone. The Court’s vaunted collegial respect is gone. The guardrails are demolished. Stare decisis is a joke. Now, anything goes.

    Could the Court reverse the main GLBT rights cases? I still say no, even as scare headlines about the end of same-sex marriage and the reappearance of sodomy laws fill my email feed. But it’s worrisome now. Much of our GLBT jurisprudence is based, not on the Equal Protection Clause, but on Due Process, the same rationale that served the Court in Roe v Wade. Due Process protects rights that are “fundamental,” a constitutional term of art that includes rights that are “deeply rooted in this Nation’s history and tradition,” or “implicit in the concept of ordered liberty.”

    But a justice like Alito would have no problem opining that, while the right to marry is fundamental, the right to marry a person of the same sex is not “deeply rooted” in a nation that disallowed such unions for its entire history. Nor would Alito see any of our rights as “implicit in the concept of ordered liberty.” Far from it. Semantic games render these essential constitutional tests meaningless to a rogue justice, much as Alito’s draft opinion on abortion brushed aside the notion that a woman’s right to control her own body was a fundamental liberty interest in today’s United States. 

    If Justice Kennedy had relied directly on the Equal Protection Clause for any of his gay rights opinions, we would be in a stronger position today. But he deliberately kept his rationales narrow and we all celebrated anyway. Rationale, schmationale. Who cares? We won!

    I still say our High Court victories are safe. While abortion policies can theoretically operate on a state-by-state basis, marriage policies must be uniform throughout the country or risk violating the right to cross state lines. And no state could return to a ban on sodomy if men can marry. I am pretty sure such observations wouldn’t stop Alito, Thomas, and maybe Gorsuch, but this terrible trio will be more likely to erode gay and trans laws by elevating religious freedom to a status above our civil rights. That remains a likely possibility, particularly given this latest news.

    The Best Lack All Conviction

    It’s been a long time since I’ve been inspired to quote “The Second Coming” in one of my headlines. But it rings true as I write this morning. Interestingly, Wikipedia tells me that Yeats wrote the poem at the tail end of the 1918 pandemic, when his wife’s health was fragile due to her pregnancy: 

    “In the weeks preceding Yeats’s writing of the poem, his pregnant wife Georgie Hyde-Lees caught the virus and was very close to death. The highest death rates of the pandemic were among pregnant women—in some areas, they had up to a 70 percent death rate.” 

    Wow. Aren’t you glad we’re not living in 1919? Oh, wait.

    One insidious dimension of the Alito mindset is the notion that this ruling will simply return the issue of abortion to the states, where the will of the people can determine policy instead of handing such an onerous burden to the courts. We’re a democracy, after all. Who can argue with “letting the people decide”?

    Leaving aside the idea that courts are there to protect us from the tyranny of the majority by enforcing constitutional rights, the days when state legislatures reflected the will of the people seem long gone. Has there ever been a clamoring for a ban on transgender girls in high school sports? Was the public up in arms over puberty blockers or discussions of slavery in history class? Did the citizens of Oklahoma demand that the governor outlaw the use of non-binary notations on birth certificates? Yes, there’s a conservative minority in many red states that eats this sort of thing up. But basically, the hard right is taking over legislatures and Republican governors are competing to make the splashiest cannonballs. In truth, most people don’t care that much about GLBT issues, and blanket bans on abortion may well cruise through red state legislatures despite public ambivalence. 

    The Worst Are Full of Passionate Intensity

    How shall we explain the latest High Court move to force the city of Boston to fly a Christian flag on one of its three city hall flagpoles? Two lower courts agreed that Boston was within its rights to reject the flag based on the implication that the city was biased in favor of a specific religion. But on May 2, the justices unanimously ruled that this particular flagpole was a public forum, given that Boston had previously given permission to every other flag request without exception. 

    I don’t know. This was a close one, because it’s true that Boston may not discriminate if it really follows a “come one, come all” policy. But Boston had never been asked to raise a religious flag before, and it makes sense that passersby would assume a flag in front of city hall represents government-approved speech. Writing for the majority, Justice Breyer said that the public could figure out that this flagpole featured a rotation of private messages that did not carry the weight of the city. But that would only apply to those discerning members of the public who checked out the flagpole on a regular basis, right?

    We condemn our opponents for raising slippery slope arguments that descend into absurdity, and I’m assuming that Boston can reject hate symbols like swastikas without penalty. But what about a confederate flag, or a big Q for Qanon? What would the High Court have said to a Muslim flag or something from the Church of Satan? What would the justices have asked the lawyers for a Muslim football coach who prayed aloud to Allah on the fifty-yard line after every game? 

    As The New York Times’ Adam Liptak pointed out in an article last year, the Court’s religious freedom jurisdiction has shifted over the last few decades from protecting minority faiths to advancing Christianity. Instead of making sure that a company can’t fire a Jewish employee for leaving early on Friday or ruling that Muslim prisoners may wear beards, they have turned their attention to conservative Christians, raising the concerns of the hyper-faithful above those of gay customers, government health insurers, same-sex foster parents, non-Christian football players, or taxpayers who foot the bill for sectarian schools or church playgrounds. 

    I’m projecting on some of those pending cases, like the Christian coach who wants to pray with his players, but the trend is clear. The Court is set to hear a case out of a Colorado next session that will determine whether a web designer can limit her future wedding clientele to heterosexuals. And under the circumstances, who would bet against her?

    Naughty Dolphins!

    It’s tough to bring a chatty mentality to the end of this column, although I did just read about some randy male dolphins who captured an anaconda, dragged it into the water, and toyed with it until it died. The dolphins all had erections, which perplexed the scientific observers. Were they turned on by the snake game? Had they been fooling around before they caught the snake? The article then devolved into a discussion of gay male dolphin antics, including a description of how one dolphin tried to penetrate a whale in the blowhole when it came up for air. Goodness!

    The Church of Scotland is going to allow same-sex marriages, so that’s nice. One of the murderers of gay men in Sydney confessed in open court, admitting that he threw American mathematician Scott Johnson off a cliff in 1988 for fear that his own homosexuality would become public. Scott White, 51, faces 12 years in prison, which seems light considering he’s been free for the last three decades or so. 

    And the current Jeopardy! champ is a lesbian, Mattea Roach, who has won 20 matches so far. You recall, of course, our recent transgender champ, Amy Schneider, who won 40 in a row. The obvious conclusion, of course, is that GLBT men and women are smarter than the average bear. 

    There’s also a state judge in Florida, who ordered an antigay vandal to submit a 25-page paper on the Pulse shootings as punishment for defacing a gay pride street display that was painted on an intersection in Delray Beach. Alexander Jerich, 20, has until June 8 to research the 49 people who were killed in 2016 at the Orlando nightclub. “I want your own brief summary of why people are so hateful and why people lash out against the gay community,” Judge Scott Suskauer said, according to the Palm Beach Post

    I guess Jerich blackened the tires on his pickup truck and then skidded around the intersection, leaving dark marks all over the rainbow flag. He was tracked down and charged with criminal mischief and reckless driving, and paid $2,000 to fix the intersection. During the recent hearing, Jerich cried and apologized, explaining to the judge:

    “I’ve had problems in the past with fitting in,” Jerich said. “I was just trying to fit in and be accepted.”

    It’s a strange way to feel accepted, but Jerich had a Trump sign on his truck, so I imagine the acceptance he sought was not from our crowd. Perhaps his assignment will inspire him to become a GLBT ally. We’re a lot more fun than the Trumpsters. Still, when we wonder what on Earth drives some of the people that we see at Trump rallies or Qanon gatherings, Jerich has given us a clue. And if you just want to fit in, it really doesn’t matter where you’re fitting in or what you’re fitting into, does it? You’re just happy not to be alone. 

    arostow@aol.com

    Published on May 5, 2022