Not There Yet

Ten years ago today, I attended the Supreme Court oral argument in Lawrence v. Texas. Then, the constitutional argument had been honed to make it clear to the Court that striking down the Texas Homosexual Conduct law would be following the nation, not leading it. Then, the path to eradicating sodomy laws had been trod for 40 years, as state after state abandoned the criminalization of sexual intimacy among same-sex couples. Then, the state had no defense of its law except that a majority preferred it that way. Then, the gay-rights advocate was masterful, both passionate and deeply analytical, stumbling only briefly over one tangential question. Back then, while there was no certainty about the outcome because the swing Justices (Kennedy and O’Connor) had given nothing away, there was jubilation among gay-rights advocates that the Court would strike down sodomy laws.

The contrast to today’s oral argument in Hollingsworth v. Perry, which I also attended, could hardly be more vivid. Today, several Justices seemed to think that a constitutional resolution would be leading the nation, not following it. And it would be doing so, asserted Justice Alito, to end a debate over something that was newer than cell phones and the Internet. Today, opponents of gay marriage could raise vague doubts about the uncertainty in the “sociological evidence” on the effects of same-sex marriage, a point that Justice Kennedy reiterated (so much for the trial in the district court, whose findings weren’t even mentioned today). Unlike ten years ago, they could claim that “caution” alone was reason enough to go slowly. Today, the gay-rights advocate was on a mission, as he has been for four years, to strike a decisive blow for freedom and equality, but delivered an argument that was more rhetorical than deeply substantive. He stumbled, not over trivial questions, but over a seemingly obvious and important one: How does the Court decide when a liberty claim should be constitutionalized? When, in the words of Justice Scalia in the most heated exchange of the day, did excluding same-sex couples from marriage become unconstitutional? Today, while Ted Olson was better than his opponent, there was no historic mismatch between advocates, as there had been ten years ago. Today, as the crowd exited, there was palpable anxiety among same-sex marriage supporters, many of whom who were stunned that there weren’t at least five Justices who saw the justice of the cause. The perceived swing vote in the case, Justice Kennedy, was concerned that the Court would have to cast aside 2,000 years of history. He also waived away any comparison to bans on interracial marriage, a remark that disquieted the audience.

In the end, as is usually the case, the oral argument probably won’t have made the difference. This was simply a Court not yet ready to declare a right to same-sex marriage, no matter how effective the oral advocacy. Still, it was a shame that today’s argument did not focus on sexual-orientation discrimination, or possibly even sex discrimination (one argument to which Justice Kennedy seemed receptive). Charles Cooper, defending Prop 8, conceded that there was not another instance in which discrimination against gays and lesbians would even be rational. That opening went unexploited. In fact, therein lies an answer to Justice Scalia’s question about when it became unconstitutional to exclude gay couples from marriage. The answer is not found in fundamental rights, the favored path of today’s marriage litigants, but in the Equal Protection Clause, whose application has long been understood to evolve as our understanding of what constitutes purposeless and oppressive discrimination evolves.  Almost no discrimination against homosexuals would have been “unconstitutional” in 1791 or 1868, according to courts then constituted.  Today, even the leading opponent against same-sex marriage can’t say the same.

Here are some quick impressions, based on the oral argument, about what the Court is likely to do and likely not to do:

(1) There will be no sweeping 5-vote declaration of a fundamental right to marry for same-sex couples, and no five-vote majority to declare the exclusion of gay couples unconstitutional on Equal Protection grounds. There may be four Justices willing to say so, but Justice Kennedy is just not there yet. It’s clearer now than it was even yesterday that he thinks there’s a big difference between criminalizing private sexual conduct and promoting same-sex unions to equal status in marriage. The quest for a nationwide right to same-sex marriage, begun when this litigation was filed over the strong objections of gay-rights groups in 2009, is not likely to end successfully in this case.

(2) There will probably be no “California only” answer from five justices, striking down Prop 8 alone. Justice Kennedy dismissed that possibility as “odd.” Chief Justice Roberts was disdainful. The “Dear Justice Kennedy” opinion of the Ninth Circuit had no supporters today.

(3) There’s even less chance that there will be a “nine-state” decision, striking down only the marriage laws of the states that grant civil unions to same-sex couples, but not the status of marriage. Even some of the more liberal Justices were skeptical, quite reasonably, that a state might be “punished” for giving same-sex couples full rights except for the title of marriage. The Solicitor General’s position that the Court could order a nine-state answer now and deal with the other states at a later date sounded like a constitutional theory that had not yet evolved.

(4) The best possible outcome for same-sex marriage advocates at this point is probably to have the Court dismiss the case on standing grounds, vacating the Ninth Circuit’s opinion, and leaving the District Court’s order in place. The Prop 8 proponents have never been able to show a particularized, personal injury from the recognition of same-sex marriage. And, despite what the California Supreme Court may have decided for state law purposes, ballot proponents do not stand fully in the shoes of the state in defending the law. If the people of California don’t like the fact that their Governor and Attorney General refuse to enforce their laws, they have a political remedy. Or they can adopt a procedure for having a stand-in appointed.  But that’s an internal state governance problem; it doesn’t create Article III standing.

Chief Justice Roberts seemed sympathetic to this line of reasoning – indeed, he prodded the reluctant lawyers on both sides to address it – as did several other Justices. But surprisingly, perhaps, Justice Kennedy was ambivalent: arguing at one point that the petitioners had standing by virtue of being the “official” defenders of the proposition, but arguing at another point that perhaps the Court should dismiss the case on jurisdictional grounds.

I could see a split decision, with three Justices willing to uphold Prop 8 on the merits (Scalia, Thomas, and Alito), at least four Justices (Roberts, Sotomayor, Kagan, and Breyer) and possibly six (add Kennedy and Ginsburg) voting to dismiss the case on some variant of jurisdictional grounds, and/or four willing to strike down Prop 8 on the merits if pushed to do so (Sotomayor, Kagan, Breyer, and Ginsburg). That means that we’ll most likely get a jurisdictional decision, with no clear win or loss for the ultimate cause, a vacated Ninth Circuit decision, and some large questions about the scope and effect of the District Court’s order. More litigation, and political struggle, to come.

Protecting Marriage But Not Marriages

Seven years ago today, on May 17, 2004, same-sex couples began marrying in Massachusetts. The onslaught of happy homosexuals has not harmed marriage in that state, which still has the lowest divorce rate in the nation. It has simply made marriage available to more families, a benefit to them and their communities.

Yet the campaign to protect some abstract, fall-from-the-sky, untouched-by-human-hands, changeless thing called “the institution of marriage” grinds on—now in the form of a proposed amendment to the Minnesota constitution that would define it as the union of one man and one woman. The debate in the state senate last week avoided hysterical rhetoric about dirty, subhuman homosexuals poisoning the minds of our children with their evil ways. Absent were the usual arguments about the One Great Purpose of Marriage: responsible procreation. Gone was the familiar but baseless charge that married gay couples would force themselves on helpless God-fearing people and churches. Silent were the protestations that Heather would be taught she could have two mommies. In fact, all of the substantive arguments against same-sex marriage were slighted in favor of process-based concerns that robed tyrants will decide the issue and that the people should get to vote on it.

When a state senator proposed to restrict court power over the issue, amendment supporters said that wasn’t good enough because it wouldn’t let people vote on the definition itself. When the amendment’s sponsor was asked what, precisely, the people would accomplish by voting on the definition, he could not think of anything substantive. In other words, the amendment would protect marriage but not marriages.  It was a rare moment of clarity and honesty in the gay-marriage debate.  Watch for yourself:

“It’ll do nothing to help you with your marriage.”

The state senate paid no heed, passing the proposed amendment, 38-27. It now goes to the state house of representatives. If it wins there, it will go to the voters in the November 2012 election where they will be implored, apparently, to achieve nothing.

A Mea Culpa on DADT

The 111th Congress, 2009-11, was a landmark triumph for the rights of lesbians and gay men. The passage of legislation permitting the repeal of “Don’t Ask, Don’t Tell” was a watershed. It heralded the end of the counterproductive and cruel exclusion of gay Americans who want to serve their country in the military. This was a personal relief for the thousands of gay men and lesbians now serving, for many of those who have served but were discharged because of sexual orientation and may now re-enlist, and for the many more who will serve in years to come. Beyond that, it was important to have the country — by legislation, no less — bring homosexuals into the single most conservative institution we have, the one closest to the heart of citizenship, the one charged with the defense of our freedoms and values. The repeal knee-capped common arguments against the equal rights of gay men and lesbians in many domains, and will continue to do so as the hysterical fears it inspired are disproved in the years to come.

I confess to having been one of those who, in the fall election of 2008 and continuing until the moment of repeal last December, was deeply skeptical about the commitment of Democrats to repealing DADT and dubious about President Obama’s dedication to the effort. And while I could cavil about the sequence of events that led to the repeal vote, could note bitterly that President Clinton was primarily to blame (by incompetence, at the very least) for the codification of the ban, and heap praise on the brave handful of Republicans who voted for repeal, there is no question in my mind that it happened because of the Democrats, and specifically because of the gay Democrats and their supporters who worked for decades to change minds in their party. None of this makes any less important the work that gay Republicans are doing in the GOP. But we must give credit where it is due.

NOM Comes Out

The Republican and religious roots of the National Organization for Marriage (NOM) have never been in doubt. But is NOM becoming more frankly partisan and more narrowly religious? Consider three items:

***In California, NOM is running ads opposing Tom Campbell in the Republican primary for U.S. Senate. The ad mentions marriage only after attacking him for supporting higher taxes. On its website and in emails, it is dubbing Campbell a RINO (Republican In Name Only), an epithet used in intra-party squabbles.

NOM is now against higher gasoline taxes as well as gay marriage. I'm waiting for the "Drill Here, Drill Now" ads.

***In Minnesota, NOM is running ads criticizing the state DFL (Democratic) party repeatedly by name for opposing a voter referendum on marriage. It also attacks Independent candidates.

The surprise is not that NOM would oppose pro-SSM candidates, but that it would do so in a way indistinguishable from a GOP ad.

***In a recent fundraising email, NOM Executive Director Brian Brown claims that same-sex marriage evinces a "profound untruth about the human person." The term "human person," a redundancy to the uninitiate, is most distinctive to Catholic theology and especially prominent in the writings of conservative Catholic natural-law theorists.

Opposite-sex marriage, Bown continues, is "written on the human heart." It's an elegant and evocative phrase. Google it and the first thing that pops up? An important and, especially for Catholics, influential address by Pope John Paul II entitled, "God's Law is Written on the Human Heart."

Brown concludes his email in language that combines the partisan and religious strands in NOM's DNA: "Here's NOM's promise: We transform your values into action, action into victory--victory for God's truth about marriage. What God has joined, no RINO Republican has any right to put asunder!"

It's perfectly legitimate for NOM to make itself a home for religious-conservative Republicans and a particular strand of natural-law Catholicism. This reflects the group's governing philosophy. Indeed, as compared to downplaying these facts for strategic reasons, it's refreshing to see NOM come out of its partisan and sectarian closet.

Nice Compromise If You Can Get It

I'll go further than David in endorsing the "compromise" on Don't Ask, Don't Tell. It would be a huge and necessary step toward the permanent end of DADT. It's a conditional repeal, restoring the status quo ante 1993 under which presidents had sole authority to set military personnel policy toward gays and lesbians. But it would wipe out the statutory basis for the exclusion of gays. President Obama would surely exercise his authority to end the ban. And while a future president could in theory reinstate it, that's extremely unlikely in fact.

The problem is that we may not get this conditional repeal. Congress still has to vote for it. The Obama administration was dragged kicking and screaming into acquiescence. The letter from budget director Peter Orszag on behalf of the administration is about as non-committal and unenthusiastic as a message of "support" could be. The president and the White House are exercising no leadership, which is what may be needed to get this through even this heavily Democratic Congress this year. And if it doesn't get through this year, it isn't likely to happen anytime soon.

No ENDA in Sight

John Aravosis has a nice timeline of the stonewalling -- an apt term here in multiple ways -- from the heavily Democratic Congress on the Employment Non-Discrimination Act. First, there was going to be a vote in the House last fall. Then there was going to be a vote in January or February. Then there would be a vote in April. Now there will be a vote sometime before January. Maybe. Nobody's even talking about the Senate. Let's just say that time is not on ENDA's side. If it does not pass this year, it is unlikely to pass before 2013.

Recall that in 2007 the House voted in favor of ENDA but the Senate never scheduled a vote because, among other things, Democrats told us the mean Republican president would veto it. So there was no point in passing it. Now with stronger Democratic majorities in the House and in the Senate, and with a Democratic president in the White House, we still aren't even getting a vote on the bill.

But something besides the usual political timidity is involved here, as the Washington Post reports. Gay-rights advocates are once again insisting, this time with the support of every gay group and the openly gay House members, on including protection for transgendered workers in the bill. After a furor over expanding ENDA, such protection was deleted from the House version last time to guarantee passage.

Almost nobody wants to talk about it now, but the renewed insistence on including "gender identity" is killing any prospects the bill might have. Says the Post:

The legislation is unnerving moderate and conservative Democrats who face brutal reelection battles this fall, and its prospects of passing the Senate are somewhere between slim and none. . . .

[Rep. Barney] Frank has lost at least a few supporters this time around. Rep. John Campbell (R-Calif.), for one, feels that "if the transgender language is included, that's just too far," according to his spokesman.

Frank says he understands why moderate Republicans and politically vulnerable Democrats have "some uneasiness" about the issue. He has addressed two of the bigger concerns: workplace bathroom use and the appearance of transgender employees. . . .

None of these efforts seem to be swaying Blue Dogs [Democrats who are moderate and conservative, especially on fiscal issues].

[Rep. Heath] Shuler (D-NC), who serves as chief whip for the Blue Dog Coalition, said moderates have "walked the plank a lot around here on things that never go anywhere in the Senate" and that asking them to vote on a transgender bill in this year's political climate would be "a mistake." Asked whether he thought the bill would ever reach the floor, he said, "I can't imagine that it would."

We can protect gay employees from private employment discrimination now, this year, 2010. Or we can insist on also protecting transgender employees, who already have some protection under other federal law, and wait indefinitely for any protection. We cannot both insist on transgender-inclusion and get a bill passed for the foreseeable future. Maybe that's a price gay-rights leaders are willing to pay, but we should at least be honest about the cost.

ENDA was one of the two things (the other was the symbolic hate crimes law) that even skeptics like me believed Democrats would achieve. Now half of even that modest expectation is slipping away.

Does Kagan’s Sexual Orientation Matter?

I don't think so. But I'm curious what others think, especially those who think it does matter. If you do think it matters, how far would you take the inquiry?

(1) Should Elena Kagan or the White House disclose her sexual orientation in a public statement?

(2) If she (or the WH) doesn't, should a Senator ask about it at her confirmation hearing?

(3) If she says that is not a matter she will discuss, or says that she has no defined sexual orientation, should the Senate seek evidence (testimony of former partners, appearance at bars, magazine subscriptions, etc) to produce evidence of what it might be?

(4) Should her refusal to discuss it be a consideration in whether a Senator should vote to confirm or reject her nomination?

(5) Is sexual orientation, per se, relevant to a nominee's duties as a justice?

I'm not sure what position, if any, David or Steve would take on these questions. But their posts did get me thinking about them.

On to 2012

To nobody's surprise, the main group trying to repeal Prop 8 this year in California has announced that it failed to gather the almost 700,000 signatures of registered voters needed to get the issue on this fall's ballot.

While that's disappointing for those who worked hard to get the signatures, and for those who believed it might be possible to win this year, it's good news for the movement. It was never a good idea to try for a repeal in this electoral and economic climate. Without the support of the main gay-rights groups, and without the support of major donors, the 2010 effort has mercifully expired.

Now the focus will turn to a possible repeal in 2012. There are at least two big unknown factors at work.

First, would a repeal in 2012 be successful? A recent poll showing that a bare majority of Californians now support gay marriage is as unpersuasive on this score as were the early polls telling us we would win the Prop 8 battle by fifteen percentage points.

Second, would a 2012 repeal effort be affected by the ongoing litigation over Prop 8 launched by David Boies and Ted Olson? It's now in a San Francisco trial court awaiting closing arguments and a decision. But the inevitable appeals will take at least a couple of years, and probably more.

In the fall of 2011, when money for a signature drive would have to be raised, and in the spring of 2012, when signatures would have to be gathered, it's likely the Prop 8 litigation will still be alive. In the summer and fall of 2012, when more money would have to be raised and volunteers would be needed to execute a campaign, it's quite possible the litigation will be at or nearing the Supreme Court.

The danger is that the very existence of the litigation will sap energy from a repeal effort. Some donors and volunteers will figure that the matter will be resolved by the Court, so why bother working for a repeal? The Supreme Court will do that for us.

The phenomenon of litigation draining energy from political work has precedent. Many abortion-rights activists believe, for example, that Roe v. Wade actually stunted the political movement for abortion rights. The same was true of the many legislative challenges to Connecticut's anti-contraceptives law in the decades before the Supreme Court struck it down. Several ongoing lawsuits over a period of thirty years made the drudgery of legislative work seem even less attractive, and unnecessary.

But at least in the case of abortion and contraception, the movements behind those efforts got what they wanted from the Supreme Court. In 2012, we may be in the unenviable position of getting nothing from the Supreme Court but a depressed and dependant political base.

The Day Gay Rights Died

Mark the date March 21, 2010, on your calendar. That's the day the great Obama health-care reform finally passed Congress. It's also the day that any realistic hope of passing significant gay-rights measures at the federal level died until at least 2013.

President Obama showed what a determined Democratic president and large congressional majority could do in the face of unified political opposition, powerful interests standing in the way, and the mobilization of the most energized and angry portion of the American public. When a president cares about something - really cares about it - he uses the bully pulpit in tandem with the political muscle and control of legislative procedure that a congressional majority gives him and he gets it done. That's what presidential leadership looks like.

But the fact is, the Democrats have now spent whatever political capital they had remaining for the passage of unpopular liberal-identified causes. They have called in all their chits. They have pulled out all the stops. Use whatever hackneyed phrase you like, but it all comes to this: They are done.

All of the liberal constituencies that make up the Democratic Party - environmentalists, gun-control enthusiasts, abortion-rights advocates, financial-reform supporters, and yes, gay-rights activists - will now be told that the urgent necessity is to focus on the fall election and that, for now at least, their pet causes must be subordinated to that larger goal. So sorry.

It's not as if gay-rights measures were headed anywhere fast before yesterday. Nobody is talking about repealing any part of the Defense of Marriage Act these days. Remember the president running on that?

Repealing "Don't Ask, Don't Tell" has been put off for at least a year and the White House is in no mood to have it brought up before then. Fat chance getting it done after November.

Even the most innocuous and politically popular measure that even pre-election Obama skeptics like me thought would happen, the Employment Non-Discrimination Act, has been delayed time after time. It's not clear it can pass the House with "gender identity" included, which gay groups are once again insisting upon. It's even more doubtful that supporters can round up 60 votes in the Senate for it, with or without protection for transgendered people.

After the November election, all of this legislation now on life support - to the extent it has any life left at all - will have the feeding tubes pulled out and the respirator turned off. The urgent necessity then, we will be told, is re-electing the president.

Then, in 2013, if he is re-elected, and if he has sufficiently large majorities in Congress, we get to start the cycle again.

UPDATE: A reader emphasizes a reasonable point: it's not as if the Democrats were making gay-rights measures a priority before health-reform passed, so what difference has passage made? The difference, I think, is that without this signature accomplishment the president and Congress would feel somewhat greater pressure to do something for various constituencies. Now they can say: "We've accomplished the liberal dream of the past century. Leave us alone until after the next election."

Obama Opposes DADT, Again

In case you'd forgotten, Barack Obama still opposes the ban on gays in the military. Here's the President tonight, in his first State of the Union speech:

This year -- this year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It's the right thing to do.

If your heart still flutters at the sound of words like this, you should really get it checked. 2009 was a squandered year for gay equality. Now 2010 starts with a pledge to "work" on the problem. It can't really be fact-checked and can't easily be broken.