The Rostow Report by Ann Rostow

How Did That Happen?!

I would have bet a magnum of vintage Krug that we would lose our Title VII GLBT workplace discrimination cases in the Supreme Court last month, and I’ve rarely been so happy to be so wrong. But my God, you guys! It seemed impossible. Of course we still had the remnant of our old gay rights majority; the four liberal members of the Court. But outside of that, who else could we count on? Gorsuch and Roberts? Keep dreaming.

Justice Gorsuch was the same man who, early on in his High Court tenure, penned a strong dissent in support of Arkansas’s right to exclude the wife of a mother from her child’s birth certificate, claiming that the 2015 marriage equality ruling didn’t apply to each and every aspect of legal wedlock. It was crazy talk, and a clue to the disappointing antigay mindset of the first Trump appointee.  

Chief Justice Roberts himself wrote in opposition to same-sex marriage, reading a dissent from the bench that implied, among other things, that the Obergefell majority opened the door to polygamy. 

“ … We were both too cautious to protest, so we have been spectators at a key moment in social history, watching with a combination of hope, pride and anxiety for everyone’s safety.”

During oral arguments on the Title VII workplace discrimination cases last October, Gorsuch furrowed his brows in considering the “massive social upheaval” that a pro-GLBT decision might trigger, seemingly unaware that courts had increasingly been ruling in favor of gay and trans Title VII plaintiffs for years. Roberts, in turn, worried about religious freedom, the role of Congress versus the Court, and speculated that using the bathroom was “a big problem” for the transgender cause.

Can you blame me for my theoretical wager? A thousand dollar bottle of Champagne on a sure thing? Like taking candy from a baby! (By the way, who would do that? And unless the candy was still wrapped, who would want some sticky glob that a baby has slurped all over?)

Dread Taney

As I wrote elsewhere this week, I was struck by a quote from the Chief Justice, reported in a different context by CNN legal analyst Joan Biskopic

“’You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,’ Roberts once said, referring to the chief justice known as the forefather of judicial review and to the chief who wrote the Dred Scott decision that said slaves were not citizens, respectively. 

“’The answer is, of course, you are certainly not going to be John Marshall,’ Roberts said. ‘But you want to avoid the danger of being Roger Taney.’”

Five years after marriage equality, which has not ushered in a demimonde of licentious sexual communes, the Chief saw in these cases the potential for a Dred Scott; the potential for “the Roberts Court” to go down in history as a disgrace to human rights. I’m guessing that this is the reason that Roberts not only voted with the liberal justices, but personally engineered the 6-3 majority that gives this victory its legitimacy and power. By giving the opinion to Gorsuch, who combined all three lawsuits in a narrow but far-reaching analysis, he created solidarity across ideological lines. Indeed, none of the liberals wrote separately, a restraint that gave further weight to Gorsuch’s relatively short opinion.

While our erstwhile High Court champion Justice Kennedy gave us extravagant prose, he finessed important questions of law, deciding the matters at hand while leaving truck-sized loopholes for religious actors and other well-meaning citizens who, um, hate gays. Opposition to same-sex marriage, he wrote in Obergefell, has “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” Holy Charlottesville! Really?

Not only did he highlight the fine attributes of our adversaries, but he left us in limbo by declining to recognize sexual orientation as a classification, like race or religion, that should be particularly scrutinized by courts when called into question. 

Gorsuch, by contrast, avoided the fancy dicta, instead making absolutely clear that sexual orientation and gender identity were subsets of “sex discrimination” under the 1964 Civil Rights Act. Adhering strictly to the statutory text is his thing, if you will. And in these cases it serves us well. If GLBT bias is encompassed in “sex” bias, then we are not only protected under Title VII, we are protected by every federal law that bans sex discrimination. There are dozens.

Further, since “sex” is a constitutionally protected category similar to race and religion, we can now argue that gay and trans bias should be subjected to heightened scrutiny under the Equal Protection Clause when it comes to the courts’ attention. 

These implications are obvious, but we will have to fight for them all. Still, instead of the decades-long uphill slog we might have had, we will have the wind at our backs.

Going Viral

I should keep going, since this is the most momentous piece of GLBT news we’ve seen in years, but I long to amuse you instead. That’s a problem as well, because we are not living in amusing times. I live in Austin, Texas, where after two months of fairly uneventful home quarantine, we are now bedeviled by escalating contagion here and horror stories from two hours down the road in Houston. I guess Houston is about to make Lombardy and Manhattan look like a walk in the park. Just as Mel and I were preparing to don our masks and hit the outdoor bars and restaurant patios, the numbers are skyrocketing. 

Meanwhile, we were both too cautious to protest, so we have been spectators at a key moment in social history, watching with a combination of hope, pride and anxiety for everyone’s safety. 

I count myself as someone who has long recognized racism in policing. But here’s what I have found shocking in the last five years or so. It’s the Karens. You know who I mean, right? The nasty little white girls (and women) who lecture Black men and women for, uh, having a picnic, smoking a cigarette outside their apartment, standing by their car texting in the parking lot, taking a nap in the common room. Yeah, yeah. I knew all about systemic racism. Not. 

I was not aware that the very air we breathe in America, the very sidewalks, the common areas of society are suffused with racism. Some of these Karens aren’t using racist terms. They’re just suspicious that a Black person is in their space. And they’re everywhere. It’s not just that Black Americans have to worry about police or get followed in the department store. The tension of implicit racism must be metabolized over and over again every day of your life. I never realized that. 

As a baby boomer child of liberal parents, I learned that racism was a bad thing from the past that we were now putting behind us in a more just and equitable society. I also saw that we put a man on the moon, and heard that we would soon have picture phones. I assumed not only that Martin Luther King Jr.’s dream would come true right away, but I also thought that we’d send a human being to Mars and build lunar space stations and get those video phones by 1980 at the latest. None of this happened. 

I’m trying to think of what my generation has accomplished in the last 50 or 60 years, and right now it doesn’t seem to add up to that much. We did, finally get the video phones, so there’s that. Other than that, we’ve mostly been treading water.

And then there’s GBLT rights. Now that’s at least one thing we can cheer about. Okay Boomer!


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