IGF CultureWatch

We have just over two months to go before California voters will decide whether to amend the state constitution to prohibit marriage for gay couples. If the amendment passes, marriage will be lost for millions of people. The gay-marriage movement as a whole will be set back many years. (Full disclosure: I have contributed, so far, $1,000 to defeat Prop 8.) With that in mind, I have some warnings and suggestions for thinking about the fight over Prop 8.

1. Ignore the polls. A poll taken by the Los Angeles Times shortly after the California Supreme Court decision showed that 54 percent of registered voters would support the amendment, while only 35 percent would oppose it. That caused alarm. However, gay-marriage advocates have taken comfort in the results of two subsequent Field polls, one in late May and the other in July. Both showed 51 percent of Californians opposed to the amendment, 42 percent supporting it, and seven percent undecided. Another Field poll is due out in September.

My advice is to ignore the polls, act on the assumption that this will be a very close vote, and that as of now we're behind. Here's why.

Of the states that have voted on gay marriage so far, 27 out of 28 have banned it. Pre-election polls in those states have consistently underestimated support for gay-marriage bans, many by ten percent or more. Just eight years ago, a Field poll taken on the eve of a vote to ban gay marriage in California by statute showed only 53 percent support - within the margin of error. Hopes were high. But in the actual election, 61 percent of California voters supported it. Nobody knows for sure why polls undercount opposition to gay marriage. It may be that voters are afraid to tell pollsters they oppose something labeled a civil right. It may be that opponents of gay marriage are more energized to actually vote. Whatever the reason, polls on the issue are unreliable. So a Field poll showing that only 42 percent support the gay-marriage ban probably means that about 52 percent support it. That means (1) it's close, and (2) we're behind.

2. Do it yourself. Up to now, the gay-marriage movement has been propelled mostly by litigation. This has given many the impression that courts will protect their rights, regardless of what happens in state legislatures and elections. Don't bet on it.

If Prop 8 passes, it is extremely unlikely the California state courts will undo it. The next step would be to ask a federal court in California to overturn the ban on the ground that it violates the U.S. Constitution.

The federal courts in California include some of the most liberal judges in the country, so it's possible gay-marriage supporters would win. But I doubt it. No federal court anywhere has held that there's a constitutional right to gay marriage, or that a state can't ban it. A decision in favor of gay marriage could go to the Supreme Court, which has given no indication it is ready to force gay marriage on the entire country. We either win on election day or we lose gay marriage in California for years to come.

3. Expand the coalition. Many opponents of Prop 8 take solace in the fact that large numbers of Democrats will vote on November 4 to support Barack Obama. Democratic voters favor gay marriage.

However, the picture is more complicated than that. In polls, blacks are among the most likely to oppose gay marriage. To the extent Obama's candidacy brings them out in large numbers, that bodes ill for defeating Prop 8. On the other hand, Obama has attracted lots of young people and they are the age group most likely to support gay marriage. However, people under 30 are historically the least likely age group to vote. What this means is that we can't count on an Obama tide in California to beat Prop 8.

That suggests some special emphasis should be placed on expanding the coalition beyond the usual liberal interest groups and civil-rights organizations. Republican opposition to Prop 8 could be a key, with the GOP state governor and a few other elected officials leading the way. It also means enlisting independents and religious leaders. The campaign against Prop 8 should highlight their views.

4. It's about marriage, stupid. In just about every vote on this issue so far, including the California vote eight years ago, gay-marriage supporters have tried to divert attention from the main question: marriage. They have issued ominous warnings about far-right conspiracies to trash constitutions, turn back clocks, and the like. That strategy has failed everywhere (except in Arizona, where the proposed amendment did go beyond banning gay marriage).

It doesn't fool voters, who know they're voting on gay marriage and have a good idea how they feel about it. The California state attorney general recently changed the title of the amendment from "Limit on marriage" to "Eliminates right of same-sex couples to marry." This was greeted as a great victory by gay-marriage advocates. But it is potentially a double-edge sword. On the one hand, few Americans like to "eliminate rights." On the other, it reminds voters that we're dealing with "same-sex couples" wanting "to marry."

Thus, the merits of marriage for gay families must be squarely confronted. An intensive two-month campaign won't win over diehards, but it may win enough others to carry the day.

The conventional view about John McCain is that, on many domestic issues, he tries to appeal both to religious conservatives and to independents. I think the truth is often less calculated than that: he has good instincts but simply hasn't given many cutting-edge domestic issues much deep thought. In recent comments about gay adoption, for example, he began badly but ended up in a pretty sensible position.

It started when the New York Times asked McCain whether he supported allowing gay couples to adopt children. "I think that we've proven that both parents are important in the success of a family," McCain responded, "so, no, I don't believe in gay adoption."

The interviewer, apparently dumbfounded, asked whether McCain would still feel that way even if it meant the child would be placed in an orphanage. McCain, suddenly sensing a culture-war minefield, avoided the question and simply said that he believed adoption should be encouraged.

Lots of gay activists jumped on this exchange as if proved that McCain hates gays or, at the very least, proved that he has capitulated to the religious right. It proves neither.

I don't think McCain has given even a moment of thought to adoption policy. The second half of the quote is a non sequitur. Adoption is necessarily a context in which "both parents" are unavailable, so it makes no sense to cite the superiority of biological parents as a reason to prohibit adoption by gays.

In the context of the culture wars, I think McCain hears a question like, "Do you favor letting gay couples adopt?" as, "Do you think gay parents are just as good for a child as a mother and father?" I don't think he hears it as, "Do you think that, once a child is up for adoption because his mother and father are out of the picture, gay people should be allowed to adopt that child?"

There is considerable debate about whether children do just as well with same-sex parents as with opposite-sex ones. Studies comparing children of gay and straight parents, while supportive of gay parenting, are not yet conclusive. Reasonable people who don't blindly hate gays can believe that opposite-sex couples would be better for children on average than same-sex couples.

Hardly anybody thinks, however, that this means gay persons must be prohibited from adopting children. Certainly gay people are competent to raise children, and public policy throughout the country reflects that fact. Only one state absolutely forbids adoptions by homosexuals, and even it allows gays to serve as long-term foster parents. McCain can't be opposed to adoptions by gay people under any circumstances, which was obvious when he side-stepped the interviewer's follow-up about Dickensian orphanages.

But McCain's answer in the Times created enough doubt, and generated enough criticism in the blogosphere (including by me), that his campaign was obliged to explain what he meant. After noting correctly that adoption is a state, not federal, issue and that McCain was not supporting any federal legislation on the subject, the campaign explained his position thus:

McCain expressed his personal preference for children to be raised by a mother and a father wherever possible. However, as an adoptive father himself, McCain believes children deserve loving and caring home environments, and he recognizes that there are many abandoned children who have yet to find homes. McCain believes that in those situations that caring parental figures are better for the child than the alternative.

(A week later, McCain was asked again about gay adoptions by ABC's George Stephanopoulos. He responded, again, by asserting that he supports "traditional families" but also supports adoption for kids with no alternatives. Despite repeated goading from Stephanopoulos, he did not repeat his statement to the Times that he "opposes gay adoptions.")

What to make of all this? By itself, the clarification was unobjectionable. Few doubt that children should be raised by their own mother and father "wherever possible." But where the biological parents aren't available or are incompetent, children should be raised by caring adoptive parents rather than shuttled from home to home in long-term foster care. For McCain, does "caring adoptive parents" include a same-sex couple?

While some gay writers and activists complained that McCain didn't go far enough in repudiating his earlier opposition to gay adoption, it's instructive to consider the reaction of anti-gay groups. The Family Research Council worried that McCain had "muddied the waters" of his earlier opposition. Focus on the Family fumed that he had "backed off." He was sharply criticized on the Christian Broadcasting Network.

And while McCain could have been clearer in his clarification, it does establish a couple of important things that all but the most zealous supporters of Barack Obama should appreciate. Whereas McCain had suggested to the New York Times that it's always best for children to be raised by mothers and fathers, he now acknowledges this often won't be possible since "there are many abandoned children who have yet to find homes."

Also, his seeming insistence on allowing adoptions only by opposite-sex couples has been replaced by supporting adoptions into "loving and caring home environments" where there are "caring parental figures."

I would have liked an explicit acknowledgment that gay parents can be caring parents and provide loving homes. (That would be a good future follow-up question.) But it won't be lost on religious conservatives that the McCain campaign used the kind of gender-neutral language about families that could be found on the website of the National Gay & Lesbian Task Force.

Taking his statements together, I think McCain's view is roughly this: when it comes to adoption opposite-sex couples are preferable, but same-sex couples are acceptable. That's not a crazy or necessarily anti-gay view. In fact, if that's his view he is near the forefront of adoption policy, since such "second-parent" adoptions by unmarried gay couples are now permitted in only some jurisdictions in only about half the states.

On the whole, after some uncomfortable twisting and turning, McCain came up with a generally supportive position on gay adoption. It won't appease gay partisans in an election year but it is defensible.

First published in the Bay Area Reporter on July 17, 2008

In a recent statement, Barack Obama said that he rejects "the divisive and discriminatory efforts to amend the California Constitution" and similar efforts in other states. At the same time, Obama has repeatedly said that he opposes gay marriage. While his views are perplexing as a matter of logic, this episode reminds us that Obama is, after all, a politician who's trying to get elected. It also says a lot about the progress the Democratic Party is making toward full support for gay marriage.

Obama opposes the proposed amendment because, he says, it is "discriminatory." But how is it any more discriminatory than his own position? He believes that marriage is between a man and woman; the proposed amendment says that marriage is "between a man and a woman."

Is there any way to reconcile his opposition to gay marriage with his opposition to the California amendment? I can think of three ways possibilities.

First, one could oppose writing the traditional definition of marriage into the state constitution - as opposed to state statutes. This would leave the state legislature and governor with the power to decide whether to recognize gay marriages at a later time.

The problem with that is that the state supreme court effectively wrote the new definition into the state constitution, removing this very power from the state legislature and the governor. If you oppose gay marriage on policy grounds, there is now no way to implement your view except to constitutionalize it by amendment. The state supreme court has left you no choice. And in California, because it's so easy to amend the state constitution, you're free to support a repeal at a later date if you change your mind on this issue. You don't have to worry that you are erecting a supermajority barrier.

Next, since gay marriages are a fait accompli for the next few months, even if you oppose them you might not want to undo the interim marriages (which is a possible effect of passing the amendment) or, more abstractly, "take away rights."

This would be an incredibly generous reason for a real opponent of gay marriage to oppose the California amendment. The number of interim marriages will be small in absolute terms, the marriages exist only by mandate of four judges, they are entered with notice that they may be nullified in a short time, and the cost of losing on the ban will be many more such marriages into the indefinite future. But if Obama is such an extraordinary anti-gay-marriage altruist, he does not give this as a reason for opposing the amendment.

Finally, a gay-marriage opponent who supports civil unions (like Obama) could vote against the California amendment on the ground that it might also be interpreted to eliminate the state's domestic-partnership system, which, like civil unions, grants all of the state-conferred legal rights of marriage to gay couples. This risk might be intolerable if you weakly oppose gay marriage but strongly support domestic partnerships or civil unions. I think it is unlikely that the amendment will be interpreted by the California courts to eliminate the state's domestic-partnership system, but the risk is above zero. However, once again, Obama does not offer this as his reason for opposing the amendment.

So what's really going on? There are probably two things happening. First, I don't think Obama really opposes gay marriage deep down and I suspect he does see the exclusion of gay couples as a kind of discrimination. He has never been able to explain his reasons for opposing gay marriage - which is very revealing for a man who's otherwise unusually thoughtful for a politician. He just says, basically, I oppose gay marriage "because I say so." So calling the amendment "discriminatory and divisive" may be a ray of candor cutting through the fog of a political campaign.

Second, and probably more importantly, this is an instance where politics necessitates cognitive dissonance. Gays and those who support gay equality are a critical constituency in the Democratic Party. Obama can't keep the gay-friendly base happy and support the amendment, which is rightly seen by them as involving huge stakes for the gay-marriage movement. But at the same time he figures that he can't openly support gay marriage because that might mean losing the election. He is winking and nodding to both sides.

Don't get me wrong, I'm grateful for Obama's opposition to the amendment. It might actually help sway some of his socially conservative black and Latino supporters, who will vote in large numbers in California in November. But then, I support gay marriage. If I opposed it, I'd probably be either mystified or angered by Obama's words.

Obama's explanation for why he opposes gay marriage and opposes the proposed California amendment banning it can't be squared as a matter of logic. It's a matter of politics, which reminds us that for all the hype about hope Obama is still a calculating politician.

It also says something about how much things have changed in a short time. We've gone from the Democratic presidential nominee in 2004 opposing a federal amendment banning gay marriage, but also opposing gay marriage itself on policy grounds and supporting state constitutional amendments to ban it, as John Kerry did (and as John McCain now does); to a Democratic nominee in 2008 who says he opposes gay marriage, but who's uncharacteristically unable to explain why, and who opposes the only way to prevent it from becoming a permanent reality in a state of forty million people; to, I predict, a nominee in 2012 or 2016 who will say he or she personally favors gay marriage but adds that the president has no role in the decision because this is an issue that should be left to the states.

Will this summer of love lead to the winter of our discontent?

The finale to the California Supreme Court's decision recognizing a right to gay marriage isn't yet written. This November, California voters will decide whether to amend the state constitution by adding this language to it: "Only marriage between a man and a woman is valid or recognized in California."

They will decide whether the recent state supreme court decision is remembered mainly as a historic victory that hastened equality under the law or as an act of judicial arrogance and impatience that inflamed voters and stopped or even reversed years of democratic progress toward the recognition of gay relationships.

One way or another, Californians were going to have to vote on gay marriage no matter what the court did. The court held that voters had already banned gay marriages performed both inside and outside the state. In California, an initiative-passed statute could only be repealed by another initiative. However laudable the state legislature's intentions in twice passing gay-marriage bills, such marriages could not have become legal without a vote of the people.

Moreover, it's also clear that whatever the state supreme court decided, the proposed amendment was going to be on the ballot in November anyway. The signatures necessary to put the amendment on the ballot were already gathered by the time the court acted.

In terms of what happens in November, therefore, the main effect of the court's decision has been to change the context in which the vote will occur. By judicial decree, Californians will see thousands of gay couples actually getting married for almost five months before they vote. Those marriages will be real, not hypothetical.

The question is, what effect will this reality have on voters? On the one hand, whatever they think of gay marriage, some voters may feel that it would be unfair to strip existing married couples of their rights. Voters may also be reassured by seeing that nothing bad happens when gay couples wed.

On the other hand, seeing gay couples actually marry may anger some voters. The sight of two men or two women kissing, no matter how joyous the occasion to those involved, is still shocking to a lot of people. They may vote "yes" as a way to stave off what they see as growing decadence and immorality. Five months just isn't a lot of time to normalize what people have spent their entire lives believing is abnormal.

Other voters will be angry at what they see as judicial activism and vote "yes" as a way to rebuke the courts.

It's impossible to predict now what the net political effect of all these gay nuptials will be. But it is possible to say what the stakes are.

If Californians reject the amendment, it will be the first time voters anywhere in the world will have approved gay marriage. They will have done so where the issue is squarely presented. They will have done so in a state inhabited by almost 40 million people, a state whose influence on the nation's culture and law is even larger than its share of the population. Vermont could be ignored. Massachusetts could be legally quarantined. But California can be neither disregarded nor isolated.

In future years, gay couples from across the country will be able to go to California - not to some foreign country - to have their relationships sanctioned. This alone will put enormous pressure on other states to move ahead and to do so more quickly than they otherwise would have. The federal government, too, will face increased political pressure to recognize same-sex marriages validly performed in a state.

We'll have an ongoing experiment that's larger and more significant than any other to prove that gay marriage makes a lot of families happier and causes nobody any harm. The impact will be huge.

That's one possible outcome. Here's another.

If the amendment passes, the result will set back the gay-marriage movement in the state by many years, perhaps a decade or more. While the amendment would be challenged as unconstitutional, such a challenge would face dim prospects. Anti-gay marriage amendments have now passed in 27 states and not one them has been held unconstitutional.

The amendment would be the final word on gay marriage in California - that is, until the voters themselves, in a future referendum, decide to repeal it. In the meantime, the California Supreme Court could not come to the rescue. The state legislature would be powerless to undo the amendment. The governor would be impotent to help.

And getting California voters to reverse their decision in some future election would not be easy. It would require a massive and costly effort to gather enough valid signatures from voters in the state to get the issue put back on the ballot. Next, there would be the enormous task of persuading voters to reverse themselves. Many of them, suffering from initiative fatigue, will vote against repeal simply on the ground that, "We've already voted on this."

If passed in November, I think the amendment would eventually be repealed. But that "eventually" could be a very long time indeed.

The stakes for the cause of gay marriage are higher than they have ever been. We are headed for a momentous battle in a full-scale culture war on the most strategic terrain in the country.

So the California Supreme Court did it. In an extraordinary, sophisticated, and far-reaching opinion the court held (1) that the fundamental right to marry protected by the state constitution includes the right of same-sex couples to marry, and (2) that exclusion of same-sex couples from marriage amounts to impermissible sexual-orientation discrimination. The opinion is much stronger analytically than the path-breaking Massachusetts marriage decision from 2003.

The impact of this decision will be political, cultural, and legal. It is the potential legal impact that I will address in this column.

The California decision injects new life into the litigation strategy for obtaining same-sex marriage. It does so in the obvious way that future gay-marriage litigants will be able to cite it as persuasive authority in other states for its ultimate holding that there is a constitutional mandate to allow gay couples to marry.

But it does so additionally because the court that issued it is careful, cautious, and well-respected. The decision is the product of a moderate Republican court (six of whose seven members were appointed by GOP governors), not a liberal "activist" one.

More specifically, it could be influential in a case pending before the state supreme court in Connecticut, which addresses the similar question whether the state may withhold the title of "marriage" to same-sex couples when the state has granted them all of the benefits of marriage under state law.

Other states with civil unions - like New Hampshire, New Jersey, and Vermont - can similarly expect renewed efforts to persuade their state courts to extend marriage itself to same-sex couples.

A possible limiting factor on the influence of the California decision is that it arose in the unusual context of a state that had already granted almost all of the substantive rights of marriage to gay couples under the state's domestic partnership laws. The California court emphasized this point throughout the opinion.

Having granted all the rights of marriage to gay couples, the court held that the state could not stop there. As I've argued before, this kind of decision provides political ammunition to opponents of legal rights for gay families who will warn state legislatures against moving toward any recognition lest state courts require the state to recognize full marriage.

But I think this potential limitation on the legal influence of the California ruling has more bark than bite for two reasons.

First, the California court held that the fundamental right to marry includes the right of same-sex couples to marry, just as it concluded in 1948 that the right to marry includes the right of interracial couples to marry. The California court did not hold that there is a new and separate fundamental right to something called "same-sex marriage." This holding is a first for a state high court in marriage litigation.

The California court's conclusion about the inclusion of gay couples within the pre-existing fundamental right to marry does not itself depend on whether the state has previously created a status for them substantively approximating marriage. The decision depends instead on the substantive interests in personal autonomy, dignity, happiness, and familial fulfillment protected by the right - interests that gay families share with heterosexual ones.

So even if California had not enacted the domestic partnership laws for same-sex couples, the California court should have concluded under its own logic that they were included within the fundamental right to marry. This holding should have some influence on courts in other states.

Second, the holding that excluding gay couples from marriage is impermissible sexual-orientation discrimination also does not depend on whether the state previously enacted domestic partnership laws. If the substantive right of marriage, and the dignitary interest in having the relationship called "marriage" by the state, cannot be denied on the basis of sexual orientation it should not matter whether the state has left gay families completely without legal protection or has protected them but withheld the title marriage. This holding, too, has potential to influence sister state courts in future marriage litigation.

Another possible limitation on the long-term influence of the decision is that California voters may effectively reverse it in November by voting for a state constitutional amendment banning gay marriage. If that happens, as it did in the 1990s in Hawaii to a pro-gay-marriage ruling, courts in other states will feel freer to ignore the decision. However, the logic and specific legal holdings of the California decision may still be persuasive.

None of this means that courts in other states will follow the California decision. They are free to reject it. They can rely on the larger number of state high courts that have rejected claims for same-sex marriage. They can say that California is unusual in its legal development toward the recognition of gay families. They can distinguish their own precedents from the California precedents. As a practical matter, they may feel pressured to rule against same-sex marriage because they face elections.

My prediction is that we will not see an avalanche of gay-marriage victories in states across the country in the near future. California was one of the last hopes of the gay-marriage litigants, who have lost in many states where the state judiciary was thought to be sympathetic. The litigation strategy hangs by a thread. But, as an analytical and intellectual matter, California's supreme court has set the bar higher than ever before.

The recent visit of Pope Benedict XVI to the United States is cause to reflect on what his papacy has meant so far for gay people. There is some good, but much bad and ugly, to report.

The largest and most pressing public-relations problem confronting the Catholic Church in the United States today is the fallout from the priest sex scandal. Some conservative Catholics have blamed "homosexuals" for the sexual abuse of children by priests, since most of it involved male priests and boys under their supervision. Some suggested that the Church purge all gays from the priesthood.

But an anti-homosexual purge presents both practical and theological problems for the Vatican. As a practical matter, homosexuals are probably disproportionately drawn to the priesthood. It offers young gay Catholics some palliative for the guilt and shame they may feel for being homosexual. It also shields them from embarrassing questions about why they aren't married.

Theologically, the Church distinguishes between innate homosexual orientation, which is not a sin, and homosexual acts, which are. For Catholicism the orientation itself is blameless, so expelling someone from the priesthood for that alone is hard to justify.

Under Benedict, the Vatican's response to the priest scandal has been a mixed bag. On the one hand, current homosexual priests have not been purged, though like all priests they must remain celibate.

On the other hand, in late 2005 the Vatican declared that those who "show profoundly deep-rooted homosexual tendencies" are not suitable candidates for the priesthood. If, however, these "homosexual tendencies" are "simply the expression of a transitory problem" then the person can be ordained if the tendencies are "overcome at least three years before ordination."

That's a bit convoluted, and the details will have to be worked out over time, but it suggests that mere homosexual orientation unaccompanied by any homosexual acts now justifies forbidding a man to enter the priesthood. In practice, of course, this will not prevent all homosexuals from becoming priests. But it will bar those who understand and openly acknowledge their homosexuality.

If the Vatican under Benedict has blurred the distinction between homosexual acts and orientation, the Pope himself has at least maintained another distinction of importance to gay people.

During his U.S. visit, Benedict spoke of the priest scandal in a way that differentiated between homosexuals and pedophiles. "I would not speak in this moment about homosexuality but pedophilia, which is another thing," he said. "We would absolutely exclude pedophiles from the sacred ministry."

This statement accomplished two important things. First, it reaffirmed that while pedophiles would be expelled from the priesthood, homosexual priests would not be. Second, it repudiated the association of homosexuality with pedophilia, an old and harmful defamation against gay people that has been used to justify much discrimination.

It is significant that a man of Benedict's standing would separate the two, while so many who admire him do not. Despite his religious objection to homosexual acts, Benedict has not ignored all we have learned from the study of homosexuality. He recognizes that homosexual orientation and pedophilia are distinct phenomena. He deserves credit for his willingness to say so publicly.

That's what makes his implied, but extravagant, criticism of gay marriage so disappointing. According to the Institute for Marriage and Public Policy, a conservative think tank opposed to gay marriage, Benedict has spoken publicly about marriage 111 times. In these speeches, he has connected the traditional definition of marriage to preventing violence, maintaining legal order, and even preserving world peace.

In his January 1 World Day of Peace message, Benedict said: "Everything that serves to weaken the family based on the marriage of a man and a woman . . . constitutes an objective obstacle on the path to peace."

Elsewhere he has bemoaned the "growing crisis of the family, which is based on the indissoluble bond of marriage between a man and a woman." When this "truth about man is subverted or the foundation of the family is undermined, peace itself is threatened and the rule of law is compromised, leading inevitably to forms of injustice and violence."

The implication is that gay marriage, along with many other modern developments, will contribute to human catastrophe.

Throughout history, gay people have been blamed for everything from the fall of the Roman Empire, to the Black Plague, to every hurricane, tornado, and earthquake that has ever struck civilization. Add global destabilization to the list.

Benedict is correct that weakening families undermines social stability, with many potential harmful consequences. But to accept Benedict's conclusion, we would have to believe that gay marriage will somehow hurt heterosexual families. Like many others, he seems to bundle gay marriage with a miasma of genuinely harmful trends like illegitimacy and rampant divorce.

The problem is that there is no good reason to indulge that fear. There is no evidence yet that gay marriage has undermined traditional families or contributed to violence, lawlessness, and war in countries like Canada, the Netherlands, and Spain. It is no more plausible to think gay marriage will produce cataclysms than to believe (as expressed by the late Jerry Falwell) that accepting "the gays and the lesbians" contributed to 9/11.

Benedict's concerns about gay marriage are not strictly theological ones. They are empirical, testable by evidence and experience, and thus subject to reasonable criticism outside his faith tradition. Day by day, year by year, they become harder to take seriously.

When is it ok to tell a gay joke? Consider three scenarios:

First scenario. In a magazine interview, a person says this: "The one thing I always say that I really, really mean is I should have had a gay son. [My child] doesn't care that Ann Miller can tap without shoes. Doesn't care! This breaks my heart. I've put on the Sirius show-tunes channel in the car and [she] gets upset with me. This is not right!"

Second scenario. In a meeting with an important client, a senior partner in a law firm tells a joke in which he makes light of gay men's attachment to feminine things. The joke ends with the punch-line, "Faggot!"

Third scenario. An interviewer asks a guest who previously starred as an openly gay character on television to turn to the camera and give the audience his "gayest look."

Based only on the information provided, are these jokes all anti-gay? Are all acceptable? Are some acceptable and others not?

From early on, we learn not to make fun of others in a way that is hurtful and demeaning to them. Polite people don't make fun of others' physical and mental infirmities, for example. Jokes about mentally retarded people are the sign of a cad, not a bon vivant.

We also learn that jokes directed against some groups of people - like racial and religious minorities - can be especially harmful because of the discrimination, stigma, and even violence the members of these groups have historically faced. Jokes at the expense of other groups of people - like politicians or lawyers - don't raise the same kinds of concerns because the targets of the fun aren't disadvantaged.

Jokes are often funny when they rely on some generalization about members of the group - some trait or characteristic they are widely believed to share, whether true or not. For this reason, a joke that made fun of Republicans for being too compassionate toward the poor or that took a jab at Moveon.org for being biased in favor of conservatives wouldn't work.

But this same reliance on stereotypes can reinforce prejudice. And prejudice is the first step toward harmful discrimination. Consider jokes that refer to blacks as stupid, lazy, or criminal; or that treat Jews as conspiratorial, undeservedly rich, or miserly. Though properly protected by the First Amendment, such jokes are socially unacceptable because they reinforce harmful prejudgments about these groups.

What's acceptable when it comes to joking about gay people? Very few of us would take the extreme position that it's never acceptable for anyone ever to tell a joke of any kind about gays. Even the gay-media watchdog group, the Gay & Lesbian Alliance Against Defamation (GLAAD), is not so humorless.

Jokes about gays are not necessarily objectionable simply because they exploit some kinds of stereotypes about gays. Think of the stereotype of gay men as promiscuous, effeminate, and obsessed with couture and entertainment. These stereotypes were the basis for much of the humor in Will & Grace, which was a breakthrough triumph for the equal treatment of homosexuals on television. (For this reason, the attempted humor in Scenarios 1 and 2 isn't necessarily objectionable on this ground, though it may be for other reasons.)

At the same time, there has been a history of anti-gay discrimination, stigma, and violence that should make us sensitive to the ways in which we joke about homosexuals.

So gays are neither in the category in which are all jokes are presumptively objectionable nor in the category in which all are presumptively acceptable. How do we know when the line is crossed?

There is no bright-line answer applicable to all cases. Everything depends on context. In the three scenarios above, it's impossible to know whether the jokes are "anti-gay" without knowing much more.

The audience matters. If I told you that the person in Scenario 1 was speaking to a general audience magazine, like Time, you might be at least uneasy that she was exploiting stereotypes of gay men as frivolously obsessed with Hollywood and Broadway. If I said she was being interviewed by a gay men's magazine, this concern would be muted. In fact, it was Joan Rivers speaking to Instinct, a periodical for gay men that focuses on celebrities, fashion, and gossip.

The identity and history of the speaker matter. If I told you, for example, that the "senior partner" in Scenario 2 is openly gay, you'd have one kind of reaction. If I said he was a homophobic straight man who believed he was speaking to other heterosexual men, you'd be more concerned. In fact, the latter was true. It happened in my presence when I was a young lawyer and not yet out at my law firm.

Lots of intangibles matter, too, like whether the joke was told in a mean-spirited way or employed stereotypes in a way that undermined the stereotypes themselves. In Scenario 3, the very idea of a giving a "gay look" to a camera is so completely ridiculous that it might be making fun of benighted people who think there is a distinctively "gay look" one can give. In fact, it was Jay Leno on the Tonight Show speaking to actor Ryan Phillipe.

The latter cases are the hardest ones to judge. GLAAD objected to Leno's attempted humor and Leno subsequently apologized. I'm not so sure. It was an awkward moment and not very funny. But bad comedy is not necessarily bad comedy.

Who's better for gay equality, Hillary Clinton or Barack Obama? The answer depends on a consideration of three main factors: the issues, actual legislative records, and likely commitment.

On the issues, both Clinton and Obama broadly support equality for gay Americans. Both support a hate crimes law, the Employment Non-Discrimination Act, a repeal of "Don't Ask, Don't Tell" (DADT), and same-sex domestic-partners benefits for federal employees. Both oppose a constitutional amendment banning gay marriage.

There's only one difference between them on gay issues. Clinton supports repeal of the section of the Defense of Marriage (DOMA) that bars federal benefits for same-sex couples who get married or enter civil unions in their own state. Prohibiting as it does the federal legal protections that would otherwise be available to tens of thousands of gay families in several states, repealing this section of DOMA is a top priority.

Obama goes one step further. He would repeal DOMA in its entirety, including the section of the law that authorizes states to refuse to recognize gay marriages and civil unions performed elsewhere.

While this sounds important, its practical effect is minimal. Even without DOMA, states may refuse to recognize gay marriages from other states. All but five have done so. Still, the interstate provision in DOMA discriminates against gay couples and should be repealed.

Clinton defends her position by saying that DOMA was a valuable political tool in defeating a federal constitutional amendment banning gay marriage. That's doubtful. She even goes so far as to say that DOMA was originally passed as a way to head off a federal amendment. That's dishonest. When her husband championed DOMA in 1996 it was not as a favor to gays, but as a way to maximize his chances for reelection.

On the issues: slight advantage to Obama.

A candidate's positions on the issues matter little if they aren't translated into legislative action. Legislative success depends, in turn, on actual legislative ability and commitment to the cause.

On legislative ability, we don't have much of a record for either candidate. Obama has been an undistinguished first-term senator, neither more nor less impressive than most others in a legislative body where seniority is power.

In an open letter to gays issued shortly before the Texas primary, Obama touted his co-sponsorship of legislation banning anti-gay discrimination when he served as an Illinois state senator. He also mentioned his co-sponsorship of a couple of pro-gay bills in the U.S. Senate.

Yet co-sponsoring bills involves nothing more than formally declaring support for them; it's not a test of legislative skill. What matters is lobbying colleagues for the bill, securing hearings on the need for it, compromising and horse-trading, and getting an actual vote.

GOP support will be needed in the Senate to overcome filibusters of pro-gay legislation. While Obama talks a good game of bringing Republicans and Democrats together for positive change, his actual legislative record demonstrates little ability to do so. That might change when he becomes president, and a president's role is different than a legislator's, but so far we have little to go on other than hope.

Clinton's legislative record is somewhat more impressive. She has surprised and delighted her Republican colleagues with her bipartisanship and work ethic.

On legislative record: slight advantage to Clinton.

Finally, which of the two is likely to be more committed to gay equality as president? Commitment is critical. Recall that Bill Clinton came into the presidency with all the right stands on gay issues for a man of his time. He also had an impressive record of legislative accomplishment as a governor. The problem was that he utterly lacked commitment to gay equality, wilting at the first sign of resistance. As Melissa Etheridge put it at a Democratic debate last year, he threw gays under the bus.

Neither Obama nor Clinton is perfect on this score. Obama campaigned last fall with a homophobic minister. Both hesitated when confronted with the remarks of Joint Chiefs of Staff Chairman Gen. Peter Pace that DADT is justified because homosexuality is immoral. As if testing the political winds, they denounced Pace only after Sen. John Warner (R-VA) flatly declared that homosexuality is not immoral.

Nevertheless, Obama speaks movingly of gay equality, and not just before gay audiences. He has raised the issue among white farmers and in black churches, where the message is both unwelcome and needed.

Hillary Clinton, by contrast, rarely raises the issue on her own, never does so before unfriendly audiences, and seems reluctant even to say the word "gay."

Obama "gets it" in a way that no previous candidate for president has. Part of this is generational, but it is nonetheless real.

On commitment: strong advantage to Obama.

Lyndon Johnson changed forever the tone of the debate over racial equality when he told the nation, "We shall overcome." Gay Americans need a transformative moment like that. Obama understands the importance of using the "bully pulpit" of the presidency to be a moral leader as well as a legislative one.

That's no guarantee he'll be a great president for gay equality. On the biggest issues, like repealing DADT and DOMA, it's doubtful any Democratic president will succeed in a first or even second term. Obama may prove just as cowardly, weak, and perfidious as that previous Clinton.

And gay issues are by no means the only ones that matter in this election. But on gay equality, Obama's the better bet.

Though it's gotten very little attention in the gay press, an important case affecting the lives of gays and lesbians is now pending in the Supreme Court. The case challenges the constitutionality of the District of Columbia's unusually strict gun-control law, which bans handguns and effectively prevents people from possessing firearms for self-defense in their own homes.

A brief filed in the case, on which I offered some counsel, argues that the law is especially harmful to gay Americans. The brief joins a large coalition of groups, including the National Rifle Association, arguing for individual rights under the Second Amendment.

The brief was filed on behalf of Pink Pistols and Gays and Lesbians for Individual Liberty (GLIL). Pink Pistols is an international group formed a few years ago with the basic mission of advocating gun ownership and training in the proper use of firearms by gay people. GLIL is a libertarian gay group that consistently defends individual rights.

The gay gun-rights brief argues that the D.C. gun-control law violates the Second Amendment, long the forgotten and some say most "embarrassing" part of the Bill of Rights. The Second Amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Many people have long argued that the reference to "a well-regulated militia" means that the right is limited to citizens serving collectively in a modern-day military force, like the National Guard. Under this interpretation, the amendment would not protect any individual right to bear arms outside the militia context, meaning that the government can entirely ban private gun ownership, even guns needed for self-defense in the home.

However, as even many liberal scholars now acknowledge, that interpretation makes little sense of the text and history of the amendment and of the Bill of Rights generally, which contains a series of individual rights.

The gay gun-rights brief adds an important perspective to this argument. It makes several points about the connection between firearms, gay rights, and the practical self-defense needs of gay Americans.

First, the brief argues that the right keep and bear arms is especially instrumental for a population at once subject to pervasive hate violence and inadequate police protection.

From 1995 to 2005, according to the FBI, more than 13,000 incidents of anti-gay hate violence were reported by law enforcement agencies. When you consider that fewer than half of all violent crimes are reported, it is certain that even this number seriously underestimates the problem.

Worse still, gays are often afraid to report anti-gay crimes. There is a sorry history of hostile or skeptical police response, public disclosure of the victim's sexual orientation, and even physical abuse by the police themselves. Investigative bias and lack of police training further complicate the picture. The upshot is that gays must be responsible for their own defense; they cannot rely solely on law enforcement for it.

Anti-gay hate crimes share several other characteristics that make the use of firearms for self-defense especially significant. Such crimes are unusually brutal, often involving multiple and vicious attacks. They are highly likely to involve multiple assailants. Attackers often themselves use guns, making anything short of a like defense almost completely ineffective.

Surprisingly, almost one-third of anti-gay bias crimes occur in the home, the precise location where the D.C. gun law forbids the effective possession of firearms for self-protection.

It's true that gun possession does not guarantee protection from violent crime. The gun may be incompetently used, for example. But where the Constitution itself protects an individual right, it is not for the government to say the citizen may not enjoy the right simply because she may not make effective use of it.

Second, the gay gun-rights brief points out that unless the Second Amendment protects an individual right to possess firearms, gay Americans are effectively disqualified from any exercise of the right. That's because under the current prevailing interpretation of the Constitution, the government may entirely exclude gays and lesbians from military service ("the militia").

If the Second Amendment protects only the collective right of a state's citizens to possess arms within a militia, and if gays may be excluded from that militia, then the Second Amendment is a dead letter for gay Americans. They have no rights on the subject the government is bound to respect.

I do not own a gun. Frankly, I don't much like them and have never felt I needed one for protection. But for many other gay people, especially the ones living on the margins of life in crime-prone or anti-gay areas, owning a gun is one important part of a comprehensive plan for protecting life and property.

Gun ownership might at the very least give them peace of mind. And widespread knowledge that many gays are packing might give their would-be attackers second thoughts. Gun rights are gay rights.

A year ago at this time there were high hopes among gay activists for the new Democratic Congress. They were going to pass legislation expanding gay rights and eliminating discrimination that had long been blocked by the Republicans in power since 1995. Even if Bush vetoed new gay-rights legislation, the Democrats would at least put him on the defensive about it and build momentum for the day when the Democrats took the White House. All of this would be payback for the huge amount of time, energy, and money that gay Americans - their third most loyal voting constituency after blacks and Jews - had given the Democrats.

That was then.

At the midpoint of this Congress, it's not looking very good. Not one piece of pro-gay legislation has even reached the president's desk.

Let's look in more detail at just how far short the Democrats have fallen. In a column one year ago, I proposed a 100-point scorecard based on four key issues and suggested how to evaluate the total:

75-100 points: Never vote for another Republican.
50-74 points: Democrats are worth our first-born children.
30-49 points: Democrats are willing to fight for gay equality, at some political risk.
10-29 points: Democrats will do the minimum necessary to mollify gays.
0-9 points: Democrats know they can take gays for granted.

Now here are the four issues and how things are looking so far:

(1) Federal recognition of gay relationships (worth up to 50 points): Congress has done nothing to eliminate or modify the Defense of Marriage Act, passed by a Republican Congress and signed by President Bill Clinton in 1996. It has also done nothing to give spousal benefits to the same-sex domestic partners of federal employees. Not only has no vote been taken on proposals to do these things, there have not even been hearings on them. While the Democratic presidential candidates have talked about such things, we learned painfully from the 1992 presidential campaign of Bill Clinton that talk is very cheap.

Points for the Democrats: 0.

(2) Gays in the military (worth up to 30 points): Congress has done nothing to eliminate or modify the ban on gays in the military, passed by a Democratic Congress and signed by Clinton in 1993. There have been no hearings on the subject, either, despite a stream of military leaders coming out against the policy and a wartime decline in anti-gay discharges. Again, the Democratic presidential candidates all oppose DADT on paper, but this counts for nothing until something is actually done.

Points for the Democrats: 0.

(3) ENDA (worth up to 15 points): The Employment Non-Discrimination Act passed the House, with 35 Republicans providing the necessary margin for passage. That first-ever triumph for a gay-rights bill was thanks largely to the leadership of Barney Frank, who fended off efforts by left-wing gay groups to kill the bill because it did not include explicit protection for transgendered people. Senator Ted Kennedy has promised to introduce the bill in the Senate, but so far no action has been taken or scheduled. It's unclear whether the bill will even get a vote in the Senate this year.

Points for the Democrats: 5.

(4) Hate crimes legislation (worth up to 5 points): This is the least important of the four issues. There's no evidence hate crimes laws actually deter hate crimes, but a federal law would have some symbolic value. Yet even that seems unlikely to come out of this Congress. Both the House and the Senate have passed hate-crimes legislation, but have waffled on how to send the bill to President Bush for his signature or veto. An effort to send the bill to Bush as part of a larger defense spending authorization foundered when anti-war liberal Democrats opposed the spending.

Points for the Democrats: 3.

By my scorecard, the Democrats have earned just 8 out of a possible 100 points at mid-term, which means that so far at least they're taking gay support entirely for granted. While they still have a few months to go, it seems unlikely they'll accomplish much in an election year when they have to worry about reelection and are likely to let gay rights take a seat even further back on the bus.

The Democrats' anemic performance so far does not necessarily mean you should vote for Republicans this November. If you support the Democrats' views on taxes, the Iraq war, national healthcare, and other issues, you're likely to back them even if they get nothing more done on gay rights.

But the Democrats' failure to produce does liberate voters who intensely support gay rights but disagree with the Democrats on other important issues. Many of these voters, subordinating their strong feelings about non-gay issues, have supported Democrats in the past because they believed the Democrats would actually accomplish something positive for gay rights.

Now these voters will find it harder to support a Democrat they would otherwise oppose just because the candidate says she supports civil unions, employment protection, ending the military ban, and the like. For them, voting Republican is not a strategy to punish the Democrats for their faithlessness on gay issues. It's a vote of principle.

Soothing words are nice, and the Democrats excel at such kindnesses. But results matter much more. On this, so far at least, they're failing.