The Rostow Report by Ann Rostow

Did you ever think you’d miss Scalia? Romney? McCain? George W Bush? Me neither.


Our crucible continues at the High Court, where the justices have just decided to hear a case that pits Catholic Social Services (CSS) against the city of Philadelphia’s gay rights policies. The Catholic group stands alone among Philly contractors in refusing to consider same-sex couples as foster parents. In turn, the City of Brotherly Love has ended the CSS participation in foster placements in view of its rules prohibiting discrimination on the basis of sexual orientation and other categories. 

But this case, which will be argued some time next fall, is about far more than foster children. At stake is the question of whether you can use your religious faith to avoid following a neutral, generally applicable law. In 1990, none other than Antonin Scalia said no you can’t, in a 5-4 ruling against a couple of Oregon men who claimed their peyote smoking was part of a constitutionally protected religious ritual. The men had been fired for drug use, but sued for unemployment benefits based on the religious nature of their transgression. Scalia essentially said that, without limits on religious freedom, every man could become a law unto himself.

Did you ever think you’d miss Scalia? Romney? McCain? George W Bush? Me neither. At any rate, if the Court goes along with Catholic Social Services’s demand to dump this precedent (known as Employment Department v Smith) we will indeed allow every krazy kristian to become a law unto him or herself at our expense.


I’m watching MSNBC with the sound off and just noticed that we are about to ban lynching under federal law in this country after 120 years. At this rate, we might win federal protections against GLBT discrimination by 2110. 

We are now waiting for the High Court justices to announce two opinions that could set us back a decade, or maybe a generation. These, of course, are the two cases that consider whether or not gays and/or transgender Americans are protected against workplace bias under existing federal law. Since 1964, Title VII of the Civil Rights Act has outlawed discrimination “because of sex” and other factors. And most courts have come to the conclusion that gay and transgender workers are inherently protected under this umbrella, albeit for separate legal reasons. 

Now, we face a conservative majority that could roll back what we had hoped just a few years ago was becoming settled law. And if that happens, as is likely, our legal status will be erased on the orders of the highest court in the land. The Supreme Court will put its imprimatur on a new national jurisprudence that opens a wide door to GLBT discrimination under federal law. That discrimination, of course, will operate under the guise of religious faith. But are no mistake, it will be deployed by anyone who dislikes us as long as they can point to some vague churchy sounding rationale.

The cases were argued in October.


We need a distraction from our troubles at the Supreme Court and our increasingly tenuous hold on electoral political success. How about the Texas elementary school teacher who was suspended after she showed the kids a picture of her and her wife in Finding Nemo Halloween fish costumes? Some parent complained that Stacy Bailey was “promoting a homosexual agenda,” but after Bailey sued, the Fort Worth area school district paid her $100,000 and gave her a high school teaching post.

Have I mentioned that we won a transgender rights case in the U.S. Court of Appeals for the Ninth Circuit the other day? A unanimous three-judge panel ruled against a bunch of bitchy parents who complained about the transgender friendly policy at an Oregon school district. We were lucky that those three judges did not include any Trump appointees. Trump has now placed 10 out of the 29 active judges on the Ninth Circuit. So be prepared for our most favorite appellate court to start producing some of our less favorite rulings.


Finally, because I refuse to end this column on a down note, let’s congratulate Missouri police lieutenant Keith Wildhaber, who walked away with $10,000,000 and change after settling his lawsuit with the St. Louis County police department on February 10. Wildhaber sued after being passed over for promotion two dozen times in his career and being advised to “tone down” his gay affect. 

Last April, the gay cop offered to settle the litigation for a $850,000 payment, but St. Louis County refused to negotiate, figuring that sexual orientation bias was not technically illegal. Bad move, guys! Wildhaber went to trial and was awarded close to $20 million in damages last October by a jury that, the foreman said, wanted to “send a message.” The recent settlement put an end to further wrangling over the cash and Wildhaber has been put in charge of a new diversity unit. 

Would you put up with twenty years of harassment (or however long it was) for ten million smackers? I’d give it some thought.