The Independent Gay Forum

California Young Americans for Freedom (YAF) leader Ryan Sorba was booed at the Conservative Political Action Conference (CPAC) when he said CPAC shouldn't have allowed the gay group GOProud [a coalition of gay Republicans] to be there. Here's the YouTube:

Alexander McCobin of Students for Liberty provoked Sorba's comments by saying in his own short speech:

"In the name of freedom, I would like to thank the American Conservative Union for welcoming GOProud as a co-sponsor of this event, not for any political reason but for the message it sends….Students today recognize that freedom does not come in pieces. Freedom is a single thing that applies to the social as well as the economic realms and should be defended at all times."

McCobin also drew some boos, but they were drowned out by applause. CPAC is the largest annual gathering of the hard-right wing of the Republican party. This represents progress.

After the GOP makes expected big congressional gains this coming November, lobbying within the libertarian wing of the Republican party will be vitally important. But don't count on the big-name "progressive" LGBT groups to bother with anything remotely like constructive engagement.

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Gays and Conservatives: The Cato Forum

February 17, 2010

The libertarian Cato Institute today hosted a forum on the topic "Is There a Place for Gay People in Conservatism and Conservative Politics?," featuring Nick Herbert, MP, the British Conservative Party's openly gay Shadow Secretary of State for Environment, Food, and Rural Affairs. Responses to Herbert's remarks (an affirmative reply to the above question) were provided by Andrew Sullivan, a supporter of President Obama who detests the Republican party, and anti-gay activist Maggie Gallagher, who opposes any conservatism that might grant gay people the freedom to legally marry and thus equal liberty under the law.

Rick Sincere has blogged a richly detailed account, which I highly recommend. It's well worth reading.

More. I see that over at Positive Liberty, Jason Kuznicki also has blogged his views of the event (as a libertarian, he's skeptical of the proposition). While Dan Blatt at the proudly conservative and pro-Republican Gay Patriot site takes umbrage at the absence of an actual gay American conservative on the panel.

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Nowheresville

February 17, 2010

If the goal of those opposing same-sex marriage is to keep us from getting married, or having our relationships legally recognized, or “destroying” marriage, you might think they’d be happy enough to see our relationships formally dissolved.

But that’s clearly not the case. The most recent example of an eager politician deploying gay equality as a strategy rather than an issue is Texas Attorney General Greg Abbott, who wants to prevent a lesbian couple legally married in Massachusetts from getting a divorce in his state.

It’s easy to simply scoff at this story, but it’s enormously important. It’s not just marriage our opponents are out to deny us – it’s any acknowledgement in the law that our relationships exist. Even the legal mechanism for undoing our marriages is too much legal recognition for them.

What they want is for us to return to the closet.

It is our invisibility they desire. They can no longer plausibly claim we don’t exist at all, but they’ll be damned if they’ll allow the law to include us either explicitly or even implicitly. Better a married gay couple than a divorced one, if it means permitting a gay couple to invoke the law of divorce.

Those of us who are old enough grew up in that netherworld where the law simply had nothing to say about us, and everyone was allowed to live in denial about our existence. We had to fend for ourselves, literally outside the law.

We will not return to those days, and neither will anyone else. Our existence in the law is now firmly enough established – even if it’s to deny us marriage under state constitutions – that the closet is no longer an option, for us or for the rest of the country.

Yet that is what a Texas politician is trying to do, leave a same-sex couple in the legal oblivion that he thinks should be their fate.

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A Breakthrough Argument on DADT

February 14, 2010

On CNN's "State of the Union," National Security Adviser (and retired four-star general) James L. Jones argues puts a powerful frame around repeal of Don't Ask, Don't Tell:

I have served my country in uniform since 1967, and in that period, we covered racial questions, racial integration. We've covered the integration of women in the armed forces. People suggested that that would be a national security problem if we did both of those things. It turned out to be, as a matter of fact, a force multiplier by doing those things. People — and I grew up in a generation where they said if you integrate members of the gay community, that will be a national security problem. That will probably prove itself to be false as well.

Proponents of DADT are down to arguing, in effect: Why mess with a policy that works in time of war? As Daniel Pipes puts it, "Now is not the time for social experimentation in the armed forces." Jones has the answer: integration is not a distraction, it is a force multiplier. With those two words, "force multipler," the general has given pro-repeal forces a rallying cry. Let’s shout it from the rooftops.

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‘The Homosexuals’ — Timely Again

February 14, 2010

It’s easy to find fault with “The Homosexuals,” a 1967 documentary from CBS, the first ever aired on a major network about “the problem” of homosexuality. Dave White at The Advocate, rediscovered the relic, and provides a litany of its sins. For example, it focuses exclusively on gay men, and has not a word to say about how lesbians (who, one assumes, are also homosexual) might be different. Amazing how that focus on gay men to the exclusion of lesbians plagues our discussion even now.

That may be because lesbians don't fit so comforably into the stereotype of relentless, anonymous sex that is the documentary's framework. Mike Wallace’s sometimes squalid questions and lascivious tone appear presumptuous and patronizing today, if you can’t give yourself a little distance and appreciate its camp value:

The average homosexual, if there be such, is promiscuous. He is not interested in, nor capable of a lasting relationship like that of a heterosexual marriage. His sex life, his “love” life, consists of a series of chance encounters at the clubs and bars he inhabits, and even on the streets of the city, the pick up, the one night stand, these are characteristic of the homosexual relationship.

It’s impossible to do justice to his spin on the word “love;” you have to hear it for yourself (this passage is about the 8:20 mark) to appreciate how near to contempt he finds the very thought.

And that age’s experts on homosexuality are given almost total deference in the piece. Charles Socarides pronounces, to a classroom of curious students (including us) the conventional notion of the time that homosexuality is a mental illness. But he then goes further in responding to a student question about “happy homosexuals,” by scoffing; they don’t and can’t exist. Question answered. Next?

That’s why it might be hard to appreciate how groundbreaking this documentary really was. No one who missed the 1950s and 60s can imagine how much sheer effort it took, then, for the nascent gay rights movement to be heard or taken seriously. Mention of the word “homosexual” on commercial television in a neutral way was almost inconceivable. An hour-long slot on the subject -- even with condescension, misinformation and insults -- was a bonanza.

We simply have no conception, today, of how dominant -- and successful -- the closet was in virtually shutting down any public conversation at all in which gay men are viewed as citizens rather than predators. Yet the documentary opens with a gay man who is well adjusted even by the standards of our own time. There are also interviews with a judge (from North Carolina!) and a prosecutor who are going through the first stages of questioning social conventions about homosexuality. And, of course, any journalism from those days that includes an interview with Frank Kameny won’t make it easy to leave unchallenged the notion which took for granted our (in Dean Rusk’s candid phrase) “personal instability.” (Kameny and Rusk make their points starting at the 29 minute mark.)

The toxins that still infect our debate today are closer to the surface here. And chief among them is the human distortion that Jonathan Rauch, Bruce Bawer and Andrew Sullivan have all tried so valiantly to have heterosexuals of good will envision: What would life be like if you grew up believing that love would have no role in your future? How would that affect a human being’s ordinary development and moral thinking?

I can’t imagine any way to make that point better than Mike Wallace’s discrediting of the word “love” for gay men. He honestly felt, as virtually everyone else at the time did, that gay men were “not interested in, nor capable of, a lasting relationship like that of heterosexual marriage.” In fact, the documentary ends with a (heterosexually) married homosexual saying that he doesn’t believe he could have a “love relationship” with another man. His moral imagination was formed, along with the rest of the culture, around the notion that homosexuality involves no emotions, no affection, no relationship to others except the physical.

Wallace has since regretted the documentary’s tone, as well as the prejudices of the time. But he has no reason to regret having participated in helping this nation begin an open discussion about homosexuality.

Forty-three years later, this documentary is timely again. Heterosexuals today don’t have to imagine the moral deformity that was demanded of gay men by assuming they had no need for love. “The Homosexuals” shows exactly what that looks like. When we fight for legal recognition of our relationships, it is because of this sabotage of our souls. I am grateful we have it today to help make our case.

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My Bias Against Bias

February 9, 2010

Just a quick (and what I think is obvious) word on the fact that the judge presiding over the Prop. 8 trial is gay: It was inevitable that he would have some sexual orientation, and there really aren't that many options.

The fact that he has a sexual orientation -- a homosexual one, as it turns out -- doesn’t make Judge Vaughan Walker any more biased toward what some might view as his team’s side than an opposite sexual orientation would in favor of the majority. Unless, of course, you go in for the notion that nobody is ever not biased by their sexual orientation -- which is, itself, a bias.

A rather potent bit of evidence suggests that Judge Walker has the ability to separate his sexual orientation from his legal work. When he was nominated to the bench (first, unsuccessfuly, by Ronald Reagan, then by George H.W. Bush), his biggest obstacle was opposition from the gay community because he had represented the U.S. Olympics in a trademark suit against the Gay Olympics. This caused gay activists no end of dyspepsia.

Both heterosexual and homosexual judges all have an identical obligation to be fair and impartial, and to be fully accountable. If Judge Walker does exhibit bias, that alone is enough for a reviewing court to disqualify him . No one defending Prop. 8 has even filed such a motion, to my knowledge, and if they have they certainly haven’t convinced any higher court of the merits.

Of course non-participants like NOM and Ed Whelan, the Excitable Boy over at NRO, can get as rhetorically exercised as they wish. But anything Judge Walker does will be reviewed by at least three judges in the Court of Appeal, possibly another 11 or so there, and then nine more above them. To my knowledge, none of these potential reviewers is him or herself openly homosexual. But even if one or two has slipped through, the homosexuals will – as arithmetic demands – be vastly outnumbered.

That would leave bias unconnected to sexual orienation -- as it should be.

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Doing Gay/Being Gay (Part II)

February 7, 2010

I come not to praise the distinction between status and conduct, but to bury it.

Differentiating between conduct – doing homosexual things – and status – being homosexual – has been with us for most of the modern gay rights debate. That’s in part because of a fundamental tenet of the law that says you can’t convict someone of a crime based on their status, only their bad conduct. The government can’t criminalize alcoholism, but it can convict an alcoholic of doing otherwise criminal things.

Sodomy has historically been the bad thing that homosexuals did. Theoretically, heterosexuals could also engage in the same form of bad behavior, but because sodomy has so conventionally been used against homosexuals, that has tended to be the focus of the public discussion.

In 1986, Bowers v. Hardwick seemed to erase that distinction. The majority’s almost obsessive focus on the phrase “homosexual sodomy” when analyzing a law that applied to sodomy without reference to the genders of the participants, appeared to give permission to discriminate against homosexuals. If not, why spend so much time talking about homosexual sodomy when the statute didn’t?

That is exactly how Ninth Circuit Judge Stephen Reinhardt read Bowers. In one of the pre-DADT cases of military discharge for homosexuality, Judge Reinhardt would have ruled against Sgt. Perry Watkins. The majority opinion (later overturned) had distinguished the spanking-new Bowers because that was a case about homosexual conduct, and Watkins’ case was about sexual orientation as a status. They found homosexuals to be a suspect class for equal protection purposes, and ruled that the military could not constitutionally ban all homosexuals simply because of their status as homosexuals.

Judge Reinhardt found the distinction an unconvincing reading of Bowers:

I do not believe we can escape the conclusion that "homosexuals", however defined, cannot qualify as a suspect class. Even if we define the class as those who have a "homosexual orientation", its members will consist principally of active, practicing homosexuals. That the class may also include a small number of persons who are or wish to be celibate is irrelevant for purposes of determining whether the group as a whole constitutes a suspect class. I simply see no way to say that homosexuals defined broadly (by status) are a suspect class, but that the same group, if more narrowly defined (by conduct) is not. Whether the group is defined by status or by conduct, its composition is essentially the same. In short, "homosexuals" are either a suspect class or they aren't.

He concluded that the fairest reading of Bowers allowed open discrimination against homosexuals, period, and that as a judge on a court inferior to the Supreme Court, he could not depart from their ruling – or what he believed to be their bias.

I had the privilege of working in Judge Reinhardt’s chambers the year after Watkins. It had caused quite a stir in his office, and I had the opportunity to discuss my own views (supporting the majority) with him. He was unshakable, and I came to believe he was right. The overreach in the Bowers majority is nothing but the conventional understanding that, whatever the specifics, homosexuals should not have sex with one another. The fact that they do have sex gives rise to all the peripheral prejudice against them. If (as Bowers ruled) the law can prohibit homosexual sex, its inferential and attendant prejudices against the group must also be permissible.

Judge Reinhardt did not personally believe it was appropriate (or constitutional) to treat homosexual sex differently than heterosexual sex:

[T]he fact that homosexuals (or persons of "homosexual orientation") engage in or seek to engage in homosexual conduct is as unremarkable as the fact that "heterosexuals" (or persons of "heterosexual orientation") engage in or seek to engage in heterosexual conduct. To pretend that homosexuality or heterosexuality is unrelated to sexual conduct borders on the absurd.

That brings me back to Sprigg/Fischer/Bahati. They want to love the sinner but hate the sin. While that’s as suspect in theology as it is in law, they are free to condescend to us as a religious belief. But here in the secular world, Bowers is no longer the law, and the civil world has to take us as we are, conduct and orientation together.

It remains fashionable to dismiss Judge Reinhardt as a knee-jerk liberal (and, to be fair, he has a long track record to that effect). But Watkins stands as one crystal clear example where he knew what result he wanted, and found the fairest reading of the law did not permit that result.

Lawrence is now controlling, and Justice Scalia articulated a thought similar to that of Judge Reinhardt in his Watkins dissent. Overturning Bowers is a pivotal step for the equal protection challenge that the Watkins majority prematurely forged. Why do our lives have to be dissected into discrete legal arenas and sectors? We’re whole human beings, sex and love included. Lawrence helped put our lives back together again.

Lawrence applies to criminal laws, and marriage is quite different. But Justice Scalia thought that overturning Bowers would inevitably lead to a fuller equality that would have to include marriage. I agree. We will see if Justice Scalia hews to the same kind of principled respect for his court’s authority that Judge Reinhardt exhibited when he was put to the test.

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The Revolution in 3 minutes and 7 seconds

February 7, 2010

Even those of us who believe the Constitution protects us know that a ruling in our favor will only be as secure as at least 2/3 of the states will let it be. That's why we have to keep up our efforts to change the political culture.

This is how we are doing it: A brief conversation in South L.A., where an African-American woman, who obviously does not feel comfortable even talking about the subject is kindly but firmly helped to actually think about the issue directly.

I don't know who Jay, the lesbian canvasser is, but hers is the face of the last mile in this revolution. Thanks to all the Jays out there.

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Doing Gay/Being Gay (Part I)

February 6, 2010

We are indebted to Peter Sprigg of the Family Research Council and Bryan Fischer of the American Family Association – not to mention David Bahati, sponsor of Uganda’s Anti-gay bill – for returning us to a debate that should have been put out of its misery in 2003: Should homosexual conduct be against the law?

Lawrence v. Texas answered the question for constitutional purposes. The government has no legitimate business making particular sexual acts a criminal offense if they are voluntary, adult and in private.

But the constitution isn’t everything. For centuries, criminal prohibitions provided the foundation for official (i.e. legal and governmental) discrimination against homosexuals. The premises about homosexuality in those laws are what most older people, in particular, take for granted. We may no longer be criminals under the law, but in some people’s minds we are certainly doing something that is wrong.

The unambiguous desire of Sprigg/Fischer/Bahati to reestablish a legal regime where homosexual conduct is criminal lets us look at the issue from today’s entirely new perspective: Why is some sexual conduct between consenting adults in private wrong. By “wrong” I do not mean “a sin,” since I am talking about the law here, not theology. Religious adherents are free to believe, among themselves, what their religion teaches about sin, whether it’s murder or adultery or dancing. There is much overlap between criminal laws and theological transgressions, but the two realms are not identical. Criminal laws in a pluralistic society of varied religious beliefs have to have justifications beyond sinfulness, since there is inconsistency between, and even within religions, and since many people belong to no formalized religion at all, a choice the constitution requires all of us to respect.

Sprigg distinguishes between homosexual conduct and homosexual orientation. Homosexual conduct is bad, but mere orientation is no problem. Ironically, this is a distinction gay rights supporters have drawn as well, when it has been advantageous. But it doesn’t answer any questions.

Justice Scalia illustrates the problem in his dissent in Lawrence: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.”

Look how casually the thinking here moves from the notion of homosexual conduct as sex to homosexual conduct as – well, as being gay. It’s safe to assume, I’d think, that few, if any of those business partners, scoutmasters, teachers or room-renters would be observing any sexual activity by these particular homosexuals (though the last category comes very close, which is why it is given universal exemption in housing discrimination laws). In the quote, it’s not even necessary that any of those people have a partner at all. The homosexual conduct Justice Scalia is concerned about people so “openly” engaging in is living their lives without hiding their sexual orientation. Simply being gay, the way heterosexuals are straight, is to “openly engage in homosexual conduct.”

The closest to “openly” engaging in conduct that could be considered sexual is when homosexuals kiss or hold hands while walking down the street. That’s openly being gay, but it’s not different (in the view of the people Scalia is worried about) from sodomizing your partner right there at the corner of Pico and Sepulveda.

There is no such concern about heterosexual kissing or hand-holding. More to the point, no sodomy law ever prohibited such acts. So why the difference for gays?

That difference is everything. In general, most people don’t spend a lot of time imagining the sex lives of others; or when they do, it’s considered impolite if not outright rude. Yet speculation like this is taken for granted when homosexuals are the subject.

It is that permissive speculation about sexual conduct that brings the bedroom right out into the open, and makes gays ripe for this kind of condemnation. It reaches its zenith of absurdity in DADT. DADT strays so far from a requirement of actual conduct that simply speaking about being gay is sufficient to have a servicemember ejected. The theory is that this shows a “propensity” to engage in homosexual conduct, and therefore a mere statement gives the military sufficient evidence of someone's unfitness.

Yet heterosexuals have a propensity to engage in heterosexual conduct – and “propensity” may be understating it for many of them. Some of their conduct will be the same kind of sodomy as homosexuals might engage in – specifically oral or anal sex. Yet for heterosexuals, we don't (as the kids say) go there.

The debate about sexual conduct is not about sexual conduct at all, but about being openly gay. It is that honesty which is objectionable. Even Peter Sprigg acknowledges that some people have a homosexual orientation. The criminal law has as little effect on that as it could have on preventing the tide from coming in. All it can do is prevent people from being honest – or, in Justice Scalia’s words, of “openly” engaging in what he calls “conduct.” But as we see in the debate over DADT, when honesty is a problem the law is trying to solve, there is something deeply wrong with our priorities.

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Credit Where Credit Is Due

February 4, 2010

There’s been a lot of gloom and doom around here lately, and this morning seems like a good opportunity to look on the bright side of life.

Both President Obama and Secretary of State Clinton spoke out against the Uganda anti-gay bill – at the National Prayer Breakfast! Obama used the word “odious” to describe it.
Senator Orrin Hatch is open to repealing DADT.
Colin Powell is not just open to the repeal, he now “fully supports” it.
Gayle Haggard (wife of Ted) believes the government “should provide equality under the law” for same-sex couples, and to that end supports civil unions.

None of these is without qualifiers and wiggle-room. But every one of them goes against some pretty widely held notions about the public figure involved. It behooves us to acknowledge what each of them has said. That simple courtesy is an important aspect of progress.

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Throw the Gays in Jail!

February 2, 2010

OK. It doesn't come much clearer than this. Family Research Council's Peter Sprigg says homosexuals should be menaced with arrest and imprisonment. Transcript and video here. We must not let the public forget that this ugly reality—they want to make us criminals—is what lies behind these guys' insistence that they mean us no harm.

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35 Years of Failed Strategy

February 1, 2010

When I saw this headline in the DC Agenda (successor newspaper to the Washington Blade), Filibuster threat makes ENDA unlikely in 2010, I wondered if it could possibly be saying that LGBT activists couldn't find a single Republican to support the measure. But no, it means that even assuming a few mostly northeastern GOP senators were on board, enough Democrats would vote no to defeat the non-discrimination act. In other words, even if the Democrats had kept their Senate supermajority, it wouldn't have been enough.

"The Human Rights Campaign, National Gay & Lesbian Task Force, and National Center for Transgender Equality — three leading groups working on ENDA — say they are confident the House of Representatives will pass ENDA in the summer or early fall. ... But in the Senate, LGBT civil rights lobbyists have been reluctant to reveal the findings of their highly confidential head counts, including leanings of the 17 Senate Democrats that have not signed on as co-sponsors. Among them are Sens. Jim Webb and Mark Warner, both of Virginia."

A gay non-discrimination act was first introduced in 1974 when Bella Abzug and Ed Koch were in Congress, and it still can't pass when Democrats have overwhelming majorities in both Houses? Majorities that are certain to shrink come November. I'd say yet again it's past time to revisit the pledges of free gay votes (and dollars) to Democrats just because they're Democrats (both Webb and Warner received support from local and national LGBT lobbies — the HRC web site still brags how it "mobilized its members to vote for U.S. Senate candidate Jim Webb"). But my beating that drum wouldn't do much good, would it.

Then again, without the vague "gender identity" add-on that could require employers to add unisex bathrooms, the odds for passage would be much greater. That's another self-inflected political wound that activists are intent on gouging deeper and deeper.

More on Jim Webb. MetroWeekly reports, "Webb...had in the past been an opponent of equal treatment for women in the military. When asked about the 'Don't Ask, Don't Tell' policy in an interview during his 2006 campaign for the U.S. Senate, Webb said, 'That's a policy that's working,' and left it at that."

So why the campaign support from the Human Rights Campaign? As long as you've got that "D" after your name, it's "don't ask, don't tell" about gay equality over at the Democratic Party's favorite free-money machine.

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Are We Conceding The Constitution?

February 1, 2010

Jon Rauch takes a liberty with the constitutional arguments about same-sex marriage I don’t think we have any more; he wants to set them aside for a moment.

We have, in fact, set them aside since they first came up explicitly in the 1970s and 80s. We’ve been doing nothing but setting them aside for the last thirty years. That has always been for political, not legal reasons. All of the powerful cultural misconceptions about homosexuality, embodied particularly in the criminal sodomy laws, still pervade the imaginations of the generations that grew up with them. That will inevitably affect how the constitutional arguments about full equality will be seen in the political sphere, and we have deferred to that powerful force.

But we can’t set the constitutional arguments aside any more because they are front and center at an actual federal court in an actual case. The political decision about whether to raise them has been made -- for better or worse, you might say, and on that score I think Jon perfectly articulates the dilemma in his final line.

But Jon makes an assumption I think he doesn’t need to make. No one can reasonably doubt that, despite its varied forms throughout history, marriage has been understood as an arrangement between one man and one woman. But for constitutional purposes, that’s not the right question -- though it clearly is for the political purposes of the right. Cultures that didn’t have a modern conception of sexual orientation obviously couldn’t have taken into account what to do about the rights of same-sex couples. There is no bigotry in marriage laws that simply ignore a group they were unaware even existed.

But that’s not the world the court is now addressing. Among the many revolutions of the 20th Century, homosexuals rejected their historical invisibility, both in the culture and in the law, and planted their feet firmly in the public world. That was an unprecedented change.

Even more important than that is the changes – under the constitution, itself – to marriage. When the Supreme Court ruled in 1965 that heterosexual married couples had a right – a constitutionally guaranteed right – to use birth control, it said something profound about the relationship between the government and individuals. The government has no legitimate business telling married couples whether they can or can’t procreate, or when. That is for the couple to decide for themselves. That’s what the constitution demands.

Griswold v. Connecticut recognized a changed technology of birth control, and in connection with the then emerging gay rights movement, it paved the way for the question now before the court. Whatever the history of marriage has been, what is the role of the government today with respect to same-sex couples? If procreation is not the government’s business, why should the law recognize only opposite-sex couples?

Jon implies, and I agree, that California’s fully equal domestic partnership law is a compromise we can live with. I think he minimizes the political calculation of Prop. 8’s proponents, though, when he says the voters “gave” us those rights. The proponents knew full well that they couldn’t have won in California if the initiative had taken them away. They very intentionally left the legislatively passed rights in place. That was a political choice, and a smart recognition of the many years of work we’ve done here to establish same-sex couples in the law.

That might be another way of saying what Jon did, but I think the emphasis is important. Domestic partnership is a political compromise that, itself, has required tremendous work. It was not the voters being benevolent in Prop. 8, it was the proponents being savvy. And that middle ground isn’t always successful. Hawaii is only the most recent example where politicians view even the compromise of civil unions as too much equality.

It is that kind of politics that the equal protection clause was designed to minimize (if not entirely eliminate). Jon’s political concerns are all absolutely valid ones. But we have a constitutional case now, and have to deal with that.

Setting aside the politics, is it possible for a Supreme Court decision in our favor to be the right constitutional resolution, or are we as convinced as our opponents that the constitution does not have room for this kind of equality? That is the question I am focused on. And I am concerned that if we concede the constitution, we may be conceding an important part of the politics as well.

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What Brown Can’t Do for You

January 31, 2010

I wish I could agree with my IGF colleague David Link that Brown v. Board of Ed, not Roe v. Wade, should be the governing precedent in the California gay marriage lawsuit—which, to remind ouselves of the stakes, seeks to impose same-sex marriage nationwide by Supreme Court order.

Alas, I cannot.

There are issues of constitutional law which come into my thinking, but let's set those aside. The more basic point is this: Just as abortion raises a fundamental question about the definition of a human person, so gay marriage raises a fundamental question about the definition of marriage. Obviously, I believe that a same-sex union can and should be regarded as a true marriage—but that is the question before the Court. In order to conclude that the unavailability of SSM deprives gay couples of an equal right to marry, the Court must conclude that a same-sex marriage is a marriage.

In Brown, no one disputed that an integrated school was in fact a school. In Loving v. Virginia, the case which overturned bans on miscegenation, some people said an interracial marriage was unnatural or immoral, but in 1967 virtually no one said it wasn't in fact a marriage. In those instances, schools and marriage were being hijacked for the extrinsic purpose of white supremacy. It was precisely because segregationists knew that an integrated school was a school, and an interracial marriage was a marriage, and for that matter a black vote was a vote, that they were so determined to exclude blacks.

(Thought experiment: imagine suggesting to a white supremacist in 1955 that blacks and whites would go to school together, sit side by side, study the same things, be treated identically—except that what blacks were getting would be called "training" instead of "education." No segregationist would have accepted that deal.)

The California gay marriage case is different. Remember, California offered (and still offers) civil unions which are marriages in all but name. In the separate-but-equal South, the intention of segregationists was to hide the reality of discrimination behind a mask of equality. In California, the public's intention was more like the opposite: hiding the reality of equality behind a mask of discrimination. All that the people of California were asking to do was retain the traditional definition of the word "marriage." They gave us everything else.

Of course, I think the people of California were wrong. I think gay couples deserve to the designation "married" and that the arguments for denying it to them are weak. David and I agree on that.

Where we disagree is over the unwisdom, as I see it, of the Supreme Court's imposing what a majority of Americans will regard as a new definition of marriage. That could cause a backlash which I think David is too casual about when he says, in effect, "They'll get used to it." Our marriages could end up in the political crosshairs for a generation or more. To tell all of America's voters that they cannot pause to think for a while before changing the very meaning (for most of them) of marriage strikes me as judicial brinksmanship of a dangerous order.

The case thus puts me in an awful bind. I can't decide which would be worse for gay equality: winning or losing.

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What Can Brown Do For You?

January 31, 2010

The constitutional contest over same-sex marriage alternately invokes two foundational principles embodied in very different landmark cases: Brown v. Board of Education’s equality doctrine and Roe v. Wade’s principle of autonomy. Of the two, it is Brown that should properly dominate, and ultimately decide the case.

Brown was initially controversial because it flew in the face of a still prominent prejudice of the time, that African-Americans were inferior to, or at least so profoundly different from Caucasians that a separate set of rules was necessary to deal with them. Even when the prejudice was couched in condescending terms (“We’re just trying to help them;” “Segregated schools benefit the whole society”), it depends, ultimately, on error. Whatever commonality blacks may have in skin color, they are still, every one of them, individual humans with individual backgrounds, lives, psychologies and aspirations. The very existence of a benevolent exception (for “Good Negroes”) demonstrates how situated the preconceptions were about the group.

The controversy over Brown has faded as that error has been exposed. It is now not only settled law, but iconic. While there is still prejudice based on skin color alone, it continues in spite of Brown. The existence of that prejudice shows only that some people remain impervious to facts, remain wedded to fencing minorities off rather than accepting their unique humanity – or humanities.

Roe has been controversial since it was issued in 1973, but for very different reasons. Its central theory was an amalgam of constitutional provisions that protect a right I think was misnamed “privacy.” I obviously believe that individual liberty as against government is what gives life to our constitutional democracy, which is why I think the result of Roe is ultimately correct. But I can’t say the constitutional criticisms of it are without merit.

But Roe is controversial for a second, and more important reason. It is based on a moral judgment about abortion that is beyond the realm of facts. People who believe life begins at the moment – the instant – of conception are not making an error, they are making a judgment. No one can prove whether that judgment is accurate or not.

This is the disconnect on same-sex marriage. Its supporters believe opponents are making an error about homosexuals in general, viewing them as a group in ways that ignore, and even suppress individual humanity. Marriage is one of the most human -- and humane -- institutions imaginable, and its denial to same-sex couples causes tangible harm to them and to their children. This is hard to prove, but it is provable.

Opponents believe same-sex marriage is a matter of judgment, needing no proof beyond a firm belief. It is no accident that so many religious believers are also opponents of same-sex marriage.

The disconnect between these two views helps explain the wealth of evidence the Olson/Boies team put on, and the relative evidentiary silence of Prop. 8’s defenders. Just as no proof can determine when life begins, so (the defenders argue) no proof could possibly justify allowing marriage for members of the same sex.

A ruling favorable to same-sex marriage will certainly have repercussions similar to Roe in the short term. Californians, better than anyone, can testify to that. On this political axis, abortion and same-sex marriage do have things in common. The question is for the long-term. The error of prejudice eases over time, and I think that’s observable in the culture. This makes Roe quite distinguishable. There is a difference of opinion about abortion, but no verifiable error.

I have to favor Brown as the more apt model in the Prop. 8 trial. Now that we’re out of the closet, I think the evidence of our lives will make it clear how wrong the judgment is, and always has been. A ruling in our favor, while controversial among many people at first, over time will necessarily prove to have been right all along.

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NOM’s Fuzzy Logic

January 30, 2010

In a recent newsletter, the National Organization for Marriage cites a new government study as evidence that gay marriage will hurt kids, because the research finds that kids suffer less abuse with married biological parents than with a single parent, a parent living with an unmarried partner, or a parent and step-parent.

They got it half right. Having two married biological parents is good for kids, and better than the alternatives the study examined. We here at IGF are all for it. But that doesn't make having, say, an unmarried mom and mom better than having a married mom and mom. As a correspondent points out:

Does NOM never, ever learn? These same figures indicate that for either two-adult family structure (both biological parents, or one biological and one step-parent) the chance of abuse to the child goes down drastically IF THE COUPLE GETS MARRIED. For the first kind of family, the risk drops 80 percent. For the second kind of family, the risk drops nearly 60 percent. Even for single biological parents, the child's risk drops by about 15 percent if that single parent finds and marries someone.

So they jump to the conclusion that if a child is living in a gay household, the way to protect the child is to NOT let the parent get married.

It would at least be consistent if they used this data to say gays (and singles and steps) shouldn't be allowed to care for kids in the first place. But that's not Maggie Gallagher's position! She acknowledges that the parenthood is OK, but is just against protecting the kids.

For years, opponents of same-sex marriage have traded on a non-sequitur: if SSM is not optimal, then it should not be legal. If you believed that, though, you would have to ban marriages that create step-families, which lots of evidence shows are not as good for kids. Thank goodness, the real world doesn't work that way.

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Judging Judges

January 29, 2010

Dale makes a good point that many minorities view the courts in heroic and almost mythic terms. But Newton’s law has its legal counterpart: For every myth there is an equal and opposite counter-myth. The anti-gay right, in particular, has done a splendid job of not just de-mythifying the courts, but of delegitimizing them for “activism” on gay equality; it’s seldom you will hear them utter the word “court” in the gay rights context without its now joined-at-the-hip modifier, “activist.” And, in Newtonian fashion, the left responds in kind when the opportunity presents itself, as it did in the Citizens United case about corporate speech.

Both sides are now positioned for their entirely predictable frenzy on this case. So I’d like to make my usual plea that we not convict judges of politics (usually someone else’s) without some kind of due process. In this case, that could be accomplished by actually reading the opinion any judge or group of judges offers.

Dale may be a bit guilty of prejudging in responding to one of the comments to his post, where he says that a very narrow ruling posited by the commenter could look “nakedly unprincipled.” That is possible. It’s also possible it could look entirely reasonable. Most likely, its bottom line (supporting or opposing marriage equality) will guide people to their conclusion about the judge’s principles. While I’d trust Dale to make that decision at the appropriate time, I have a feeling such niceties won’t bother the partisans.

Dale’s skepticism, though, comes from having read previous opinions on this subject, and I think it’s fair for me to disclose that I have some predispositions of my own -- in the opposite direction. To the extent the courts have been political in dealing with homosexuality, it is sometimes against gays.

The fact that we don’t know what level of scrutiny sexual orientation should receive from the courts is the tip-off. The courts do – and, frankly, should – make the narrowest decisions that will decide the case before them. Courts shouldn’t decide issues (and particularly constitutional issues) unless they have no other choice.

But the question of whether sexual orientation is a suspect class or not has been hanging around the federal courts since the military discrimination cases back in the 1980s. Federal opinions have nibbled around the edges of this, but have taken advantage of the military’s unique factors to sidestep the question. The military’s vital functions give them constitutional authority to override even fundamental rights like freedom of religion in order to carry out their duties.

For those of us not in the military, though, the question is still unresolved. Some courts have assumed without deciding that sexual orientation gets the lowest level of review. I think that comes from the politcs. Everything we know about equal protection law from the U.S. Supreme Court would and should lead to a finding that laws distinguishing among citizens based on sexual orientation are entitled to the highest level of court scrutiny.

The California Supreme Court is the only one that concluded sexual orientation is entitled to that level of review. It explicitly goes through the neutral principles courts have established for this kind of case, and I think provides a credible and persuasive analysis of each one. Compare their analysis to the dismissal given the issue by New York's highest court.

The retreat to rational basis review can be seen as a response to the heightened politics surrounding sexual orientation. On this issue, the charges of activism will come mostly from the right, and the only defense is for courts to adopt the most deferential posture possible.

But that’s not what the precedents say, at least with respect to minorities who have a documented history of irrational discrimination. Laws making a group criminals (some laws still on the books into the present century) would seem to suggest that kind of history.

If this case is decided on equal protection, a responsible opinion would seem to require application of the longstanding principles of equal protection, and a conclusion of whether sexual orientation is entitled to strict scrutiny, middle-tier scrutiny, or rational basis scrutiny – with reasons stated, so those of us so inclined will be able to decide, based on the reasoning, not the result, how neutral (or not) the judge was.

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Bad Timing

January 28, 2010