IGF CultureWatch

It has happened again, and it's going to keep happening.

A Minneapolis bus driver recently complained that an advertisement for a gay magazine that ran on the back of some city buses offended her religious beliefs about homosexuality. The ad depicted the face of a young man and carried the slogan, "Unleash your inner gay." The magazine it advertised is not pornographic and nothing in the ad itself was even sexually suggestive.

Nevertheless, the driver told the city transit authority that she could not, in compliance with her faith, drive a bus that carried such an ad. The transit authority at first accommodated her wishes by agreeing to assign her only to buses that didn't carry the ad.

But after union leaders and some public officials complained that the accommodation sent a message of "intolerance" and disrespect for the "diversity" of the city's riders and other bus drivers, transit officials announced they would "be reluctant" to grant such requests in the future.

How should those of us who support equal rights for gay people think about incidents like this? Should we magnanimously try to accommodate the deep religious convictions of those who oppose gay civil rights, risking that these objections will proliferate and undermine equality? Or should we reject all such accommodations, no matter how small, subverting the very principles of pluralism and tolerance that the gay civil rights movement has been built upon?

I generally support accommodations for sincere religious objectors, certainly where the accommodation can be made at little or no cost to other legitimate public interests. These other public interests include administrative burdens and hardship to the class of people protected by the law (e.g., an antidiscrimination law).

In the case of the Minneapolis bus driver, the public interest was largely administrative and appeared to be no more than trivial in magnitude. It was easy to assign this single driver to one of the majority of buses that didn't carry the offending ad. (If half the bus drivers refused to drive buses with ads that offended them, we'd have a different issue.) We have no reason to believe that the driver's religious objections were not sincere or that they were part of an orchestrated campaign to drive gay-themed ads off the city's buses.

But for a generous policy of accommodations to work in a diverse society, we must have some reasonable self-restraint on the part of potential objectors. They must search their consciences in good faith to ask whether compliance (in this case, driving the bus to which one is assigned) really would violate a religious command to the contrary. Nobody thinks bus drivers endorse the messages or products in the ads on the buses they drive. I doubt that even most religions that condemn homosexual acts would really require that an adherent not drive the bus under these circumstances.

The risk is that drivers who are simply uncomfortable with certain ads will (either mistakenly or dishonestly) label their objections "religious" and demand reassignment. This problem is especially great when it comes to anything gay-related because many people still have a gut-level "ick" reaction to homosexuality. If challenged, they often vaguely attribute this reaction to religious teachings.

A policy of accommodation cannot work if objectors insist on a right to be made comfortable. Our society is much too diverse, religiously and otherwise, for that.

By saying they would "be reluctant" to reassign offended drivers in the future, transit authorities struck a sensible balance. They leave open the door to a possible accommodation in isolated cases while signaling their skepticism about such claims in a way that may (1) dissuade impostors and (2) cause sincere religious objectors to examine more closely their own religious scruples before requesting an accommodation.

Less persuasive are "diversity" and "tolerance" rationales for denying accommodations like this. If transit authorities had accommodated a driver's religious objections by removing the gay-themed ads or by permitting a driver to refuse entry to homosexual riders, that would truly signal intolerance.

But here, by hypothesis, we can accommodate a religious objector at no apparent cost to anyone. The only thing lost is the corrosive satisfaction of knowing that a dissenter from our values has been made to heel. I'm not sure this satisfaction is all that different in form from the old rationale for sodomy laws, under which the state enforced the nosy preferences of the moral majority even though it could show no appreciable harm to anyone from the activity prohibited.

And why don't diversity and tolerance include religious dissenters from majoritarian values? It shows no intolerance of gay people to accommodate sincere religious objectors where the accommodation will cause no harm; on the contrary, it shows tolerance for religious diversity.

Keeping the culture war at a manageable level of conflict requires both sides to make some sacrifices. The state should accommodate religious objectors where the cost of doing so is small. But religious objectors should accommodate state interests where doing so is religiously permissible and does little more than make them uncomfortable.

I am not sure either side is capable of this sort of self-restraint. Many people seem to want to turn up the volume and temperature by using every confrontation as a chance to accuse the other side of prejudice and bad faith. It doesn't have to be that way.

There are many things one could say about the scandal involving disgraced former Rep. Mark Foley (R-Florida). It is foremost a tale of an individual's misuse of power and trust, a willingness to disregard the vulnerable position and psychology of eager-to-please youths.

It is a tale of self-abasement, a 50-something male trying desperately to sound cool and hip to the 16- and 17-year-olds he's attracted to. The puerile internet messages allegedly sent by Foley to the pages are painful to read. They make you cringe in embarrassment for the man.

It is a tale of a political party hoist on its own petard of anti-homosexual moralism and opportunism. However, celebration of this irony among gay-rights advocates is misplaced. In the short-term Republicans will lose a seat, Foley's own. But in Foley's Republican-leaning district the likely long-term effect is the loss of a pretty reliable pro-gay vote. Foley consistently scored well with gay political groups, almost certainly higher than his eventual (post-2008) Republican successor will. In a larger sense, revving up anti-gay sentiment, as the Foley scandal has done, is not likely to benefit Democrats, who are rightly seen as more favorable to gays.

It is a tale of closets, of Foley's and of many of the gay Republicans who work in Washington, and of the terrible costs that maintaining these closets can exact on everyone, straight and gay. This is not to say that Foley-who was really more openly closeted than closeted-was led to his behavior simply by his shame and fear. But Rep. Barney Frank (D-Massachusetts) is right that the closet makes these episodes more likely.

It is a tale of what NGLTF's Matt Foreman called "blood libels" reaffirmed for those inclined to believe them-of gays as alcoholics, as damaged and twisted sexual abuse victims, and as child molesters themselves.

Any of those story lines could make a column, but I am interested here in something else. The Foley mess reaffirms some things we have long known about the nature and characteristics of anti-gay prejudice.

William Eskridge, a Yale law professor, has written that anti-gay prejudice has been marked historically by three characteristics. These are: (1) "hysterical demonization of gay people as dirty sexualized subhumans"; (2) "obsessional fears of gay people as conspiratorial and sexually predatory"; and (3) "narcissistic desires to reinforce stable heterosexual identity . . . by bashing gay people." The primary historical traits of homophobia are thus hysteria, obsession, and narcissism.

We can see the first of these characteristics, hysteria, in some of the reactions to the Foley scandal. "While pro-homosexual activists like to claim that pedophilia is a completely distinct orientation from homosexuality, evidence shows a disproportionate overlap between the two," declared Tony Perkins of the Family Research Council.

There is no good evidence of a link between homosexual orientation and pedophilia. Professional anti-homosexuals, like Perkins, often cite junk science to support their hysterical views of dangerous and hypersexualized homosexuals.

Ken Lucas, a Democrat running for Congress from Kentucky, said that Republican leaders should have closely monitored Foley simply because he's gay. There was no more reason to watch over Foley because he's gay than there was to supervise the other 530 or so members of Congress because they're straight, but hysteria sees no inconsistency.

The second characteristic of anti-gay prejudice, obsession, has been on full display. Some Republicans in Congress and religious conservatives told reporters that they suspect a "gay subculture" has infiltrated the party. This "Velvet Mafia"-as some have called it-allegedly consists of a number of gay Republican congressional staffers and other personnel. A conservative website asserted that the gay conspiracy includes nine chiefs of staff, two press secretaries, and two directors of communications for prominent congressional Republicans.

The conspirators, the story went, included several gay Republican staff members who personally handled the Foley case. An especially irresponsible report by CBS News's Gloria Borger recounted how the scandal had "caused a firestorm among GOP conservatives." Without any rebuttal or fact-checking, Borger reported that conservatives "charge that a group of high-level gay Republican staffers were protecting a gay Republican congressman." There is no evidence for this charge, and some pretty good evidence against it, but anti-gay websites quickly praised Borger for breaking the "PC barrier."

This baseless fear of a gay mafia wielding enormous power undetected has a certain obsessional quality. It is deeply conspiratorial, fed by fantasies of gays as sexual predators.

Others-including Perkins, Newt Gingrich, Patrick Buchanan, and even the Wall Street Journal editorial page-suggested that Republican leaders were paralyzed from acting against Foley early on by fear of a pro-gay backlash. To believe this of GOP leaders-who have opposed every measure for gay equality-requires obsessional and conspiratorial delusion about the power and influence of the gay civil rights movement in America.

Finally, the Foley mess has demonstrated the third characteristic of anti-gay prejudice, narcissism. If the GOP loses one or both houses of Congress in November, one supposed lesson will be that the party was too lenient on homosexuals-turning off the party's base of religious conservatives. Some thus see the scandal as a chance to cleanse the GOP of the impurity of homosexuality, to reassert the party's stable, pro-family heterosexual identity.

Chances are that most Americans, including most Republicans, will reject the hysteria, obsession, and narcissism of anti-gay prejudice this mess has loosed upon us. Most GOP leaders have been careful to avoid drawing any of the "larger lessons" about gay people that professional anti-homosexuals would like us to learn.

The Foley scandal doesn't say anything very important about America's gays. But it says a lot about America's anti-gays.

Not long ago, hundreds of progressive academics and activists issued a manifesto calling for health care and jobs for all, universal peace, an end to hunger, and the equal recognition of all relations among sentient creatures. Robert George, a prominent natural-law professor at Princeton who opposes gay marriage, took this rather stale document as fresh proof that gay marriage will lead to polygamy.

George understands the radical argument for gay marriage. It claims, as he notes, that "love makes a family" and that making any legal distinctions among people who love each other is unjustified. George concludes that this love-makes-a-family ideology "is central to any principled argument" for same-sex marriage.

That's wrong. While George understands the most open-ended argument for gay marriage, it does not appear that he has taken the time to understand more careful, restrained, and conservative arguments for gay marriage, like those advanced by Jonathan Rauch, Andrew Sullivan, me, and others. I won't repeat the substance of these arguments here, but suffice it to say they do not easily lend themselves to support for polygamy; they certainly involve more than saying simply, "love makes a family."

George complains that we have not made what he calls "principled" arguments about why the recognition of same-sex marriages does not entail the recognition of polygamous ones. Instead, we have made what he calls "pragmatic" and "prudential" arguments, emphasizing differences between SSM and polygamy in terms of their respective histories, expected effects on society and marriage, and predicted benefits to the people involved.

When you read modern natural-law writings about marriage, you find that by "principle" something like this is meant: "Marriage must be between a man and a woman because only they can procreate; as for sterile male-female couples, they are included because they can have sex of a reproductive kind." Sex "of a reproductive kind" is sex that involves a penis and a vagina, even if it can produce no more babies than could a male and a male or a female and a female. The conclusion of the argument is embedded in the "principle" and then offered as if it's an argument.

In his scholarship, George has asserted that male-female marriage, and only male-female marriage, has an "intrinsic value" that "cannot, strictly speaking, be demonstrated." Its value "must be grasped in noninferential acts of understanding." This "noninferential understanding" that "cannot be demonstrated" is unavailable to some people, argue modern natural-law theorists. Another natural-law writer, Professor Gerard V. Bradley, adds that, "In the end, one either understands that spousal genital intercourse has a special significance as instantiating a basic, non-instrumental value, or something blocks that understanding and one does not perceive correctly."

This amounts to saying: "Same-sex 'marriage' is not marriage because only male-female marriage can be marriage. Trust me." The modern natural-law argument against same-sex marriage at bottom thus appears to rest on revelation of some pre-cognition reality to the initiate and only to the initiate. This seems to me very close to saying that marriage just is the union of one man and one woman and cannot, no matter the arguments, be defined any other way.

But advocates of a logical slide to polygamy need to show the necessary "principle" uniting the causes of same-sex marriage and other unions, like polygamous ones. Yes, you can imagine such a principle ("love makes a family") and even find support for it in slogans and in the writings of some academics and activists who say they favor gay marriage but also favor many other reforms. The manifesto that has George so excited actually says very little about polygamy, but prominently calls for an end to "militarism," and repeatedly for a wide range of government social-welfare measures. Must gay-marriage advocates who didn't sign the manifesto produce position papers and principles against state-controlled universal health care, too? Same-sex marriage is no more necessarily tied to polygamy than it is to all of these other proposals.

And when it comes to crafting public policy, why don't pragmatic and prudential considerations count as serious arguments? If same-sex marriage will benefit the individuals involved, any children they're raising, and their communities, all without plausibly harming marriage, does this not matter as against a claim that a conclusory principle stands in the way?

If polygamous/polyamorous marriage raises a host of different questions about harm, practical administration, and about historical experience, none of which depend necessarily on how we've resolved the debate about gay marriage, why must gay-marriage advocates definitively address it?

The way we frame the debate about gay marriage matters not just for the ultimate outcome, but for the shape and attributes of that outcome. Those of us who have been making a conservative case for gay marriage do so, fundamentally, because we believe in marriage. We do not want to see it harmed and we do not think that this reform means every proposed reform of marriage, including potentially harmful ones, must be accepted.

Ironically, George and the manifesto-signers agree that gay marriage means anything goes. I don't expect that George and other conservative opponents of gay marriage will hold to that position when gay marriage is actually recognized (indeed, they'll strongly resist the supposed slippery slope to polygamy then), but the damage they are doing now by making a tactical alliance with marriage radicals and arguing the line cannot be held will not have been helpful.

Franklin Kameny was, as they say, a pioneer of the early days of the modern gay civil rights movement. Before even the Stonewall riot in New York in 1969, in days when 49 of 50 states banned sodomy (and meant it), when the police routinely raided gay bars and arrested patrons for dancing together or for no reason at all, when the America Psychiatric Association still considered homosexuality a mental disorder, when homosexuality was a disqualification from any federal employment, when the FBI was busy monitoring and harassing nascent gay political groups, Kameny was leading the very first demonstrations of homosexuals in front of the White House and generally giving the government hell for its anti-gay policies.

Now an octogenarian, Kameny has kept almost all of his letters and other documents and pictures from those days - from the early 1960's on. That's very fortunate for anyone interested in the history of the movement. What's worrisome, however, is that none of this precious material has yet found a permanent and safe home in a library or other collection where it can be made available to researchers and, most importantly, be preserved for posterity. An effort is underway to change that.

Some of Kameny's archives have now been collected at a website called "The Kameny Papers", set up run and by Charles Francis. Francis is raising money for the effort to preserve this original source material.

The website is worth a visit if you have any interest in the subject at all. The pictures, including marvelous color photos of the original 1965 White House pickets, can be accessed by clicking the "Memorabilia" tab to the left on the home page of the website.

Much more interesting and often heart-breaking, however, is the material under the tab "Correspondence," also to the left on the home page. These materials have been photocopied and are presented in their original form. Some highlights:

* In 1961, Kameny founded the Mattachine Society in Washington, D.C., an association devoted to ending discrimination against gays. He wrote polite letters to members of Congress introducing himself, explaining the purposes of the Society, and offering to meet with them. Rep. Paul C. Jones (D-MO) responded by scribbling the following note on the letter and returning it to Kameny: "I am unalterably opposed to your proposal and cannot see how any person in his right mind can condone the practices which you would justify. Please do not contaminate my mail with such filthy trash."

* Rep. Charles Chamberlain (R-MI), who now has a federal building named after him in Grand Rapids, responded to the same letter from Kameny with this: "Your letter of August 28 has been received, and in reply may I state unequivocally that in all my six years of service in the United States Congress I have not received such a revolting communication."

* A letter from the APA in 1963, ten years before it would remove homosexuality from its list of disorders, refusing even to meet with Kameny's group or to "publicize your meetings."

* Vice President Hubert Humphrey writing to Kameny in 1965 that federal civil rights laws are not "relevant to the problems of homosexuals."

* A 1962 letter to an employee of the Library of Congress (!) informing him that the library had "received a report concerning you," asking whether he had performed a homosexual act, whether he was attracted to other men, whether he had been in bed with men, and whether he "enjoyed embracing them." The letter concludes, "I am quite shook-up over this matter" and requests an interview with the employee as soon as possible. I can only imagine how terrified the employee must have been.

* A 1962 letter from Kameny to Attorney General Robert Kennedy asking him to "halt immediately" the FBI's investigation and infiltration of Mattachine and the interrogation of its members.

* A memorandum from the FBI (headed by J. Edgar Hoover at the time) urging that the Attorney General not respond to Kameny's letter and justifying its harrassment of Mattachine as part of the investigation of "crimes perpetrated by sex deviates," as homosexuals were commonly called at the time. Alas, large parts of the memo are blacked out.

* A 1973 memo from Kameny to his supporters describing the sequence of events that led the APA to remove homosexuality from its list of disorders or, in his words, "'curing' us all, instantaneously, en masse, in one fell swoop, by semantics and by vote, rather than by therapy."

There's much more on the website.

Let's hope the whole archives will be publicly available soon. You can help make that happen by donating to the effort. To do that, contact Francis at ccfrancis@aol.com.

For gay-marriage litigants, July was the cruelest month. Prior to the Washington Supreme Court decision in Andersen v. King County, there were two substantive state marriage decisions against them (New York and Connecticut), one quasi-substantive federal decision against them (the 8th Circuit, whose broad language went beyond the state constitutional ban at issue), and three procedural decisions against them upholding the propriety of ballot initiatives banning gay marriage (Massachusetts, Tennessee, and Georgia).

But the day the Washington court handed down its decision may turn out to be the hardest day of all. Andersen is the most careful, closely reasoned, and comprehensive judicial opinion to date rejecting constitutional claims to gay marriage. It is much better, as a matter of conventional legal analysis and craftsmanship, than the New York Court of Appeals decision in Hernandez v. Robles rejecting gay-marriage claims in early July.

Since the principles and arguments on this issue from state-to-state, and even in the federal courts, are not that different, the Washington decision will deserve close attention from other courts. Among the courts next to consider claims for gay marriage, the New Jersey Supreme Court in particular should grapple with, and respond to, Andersen if it intends to uphold a gay-marriage claim.

Andersen shows how legislative advances for gays are a double-edged sword in litigation over marriage. Some courts upholding gay-marriage or civil unions claims have cited legislative progress - eliminating sodomy laws, making adoptions more widely available, passing employment non-discrimination laws - as evidence that times and attitudes are changing and as support for the idea that the legislature has no very good reason to withhold this last bit of progress from them.

Andersen, by contrast, cites legislative progress as a reason to deny that anti-gay discrimination should be of special concern to judges. After all, reasoned the court, gays have made a lot of legislative progress. Thus, they don't need the protection of courts the way racial minorities do. Gays can fend for themselves in the political process, just as most interest groups do.

This is a dubious theory, since historical scholarship has shown that groups tend to get heightened judicial protection only after they've made legislative progress. And once they've gotten that judicial protection, they don't lose it simply because the legislature begins to take their concerns seriously.

Since the court saw no reason to strictly scrutinized the exclusion of gay couples from marriage, it was very easy to uphold the law. The law need only be "rationally related to a legitimate state interest." The court rightly describes this form of review as "extremely deferential" and granting the state "nearly limitless" power to make policy as it sees fit.

The state claimed that its desire to promote procreation and child welfare were good enough reasons under this "rational basis" standard to exclude gay couples from marriage. While they are very poor policy reasons to exclude gay couples - many heterosexual couples don't procreate, yet they can marry - the court concluded that these were minimally "rational" reasons for existing marriage law.

There is a bright spot for gay couples in the Andersen decision."We are acutely aware . . . that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples," wrote the court. It then listed some of the numerous ways in which marriage law helps families to deal with various crises in life, including the death or incapacity of a partner, no matter whether the couple has children.

Lest you think these are just crocodile tears from a gutless court delivering gay couples to the tender mercies of the heartless legislature, the court continued: "But plaintiffs have affirmatively asked that we not consider any claim regarding statutory benefits and obligations separate from the status of marriage. We thus have no cause for considering whether denial of statutory rights and obligations to same-sex couples, apart from the status of marriage, violates the state or federal constitution." The court ended with a strong suggestion that "the legislature may want to reexamine the impact of the marriage laws on all citizens of this state."

To the state legislature, the message seems to be this: "Get moving on addressing the hardships faced by gay couples and their children, some of which we've listed for you. You don't have to give them marriage and maybe not even all of the rights of marriage, but something needs to be done. If you don't act, we might."

To gay-marriage litigants, the message seems to be this: "Go to the legislature and see what can be done about the sorts of problems you've identified and that we agree exist. If the legislature is unresponsive, come back to us not with a claim for the status of marriage, but with a remedial claim for the benefits and protections of marriage for your families."

My guess is that this twin message was necessary to get the five votes needed to uphold the state's marriage laws.

I've previously written that courts confronting gay-marriage claims may now see three choices: (1) order full marriage (Massachusetts); (2) deny the claims (New York); and (3) compromise on civil unions, with instructions to the legislature to decide on implementation (Vermont).

Choice #3 involves many complications and permutations, but it seems that the Washington court would like very much to give it a try. It's a sensible direction for litigants, legislatures, and courts.

In the past few weeks, gay marriage advocates pursuing their goal by filing lawsuits have suffered several defeats. The most surprising and most significant of these came in New York, where the Court of Appeals rejected state constitutional claims to same-sex marriage. I want to explore some effects of the decision on the cause of same-sex marriage.

First, the New York decision may be followed by other state courts. Right now, litigation is pending in eight state court systems. We await decisions from the high courts of two states, New Jersey and Washington. New York is a large state and its courts are well regarded.

At the same time, it's a politically liberal state. The New York decision could provide cover, jurisprudentially and politically, to judges in other states who want to reject gay marriage claims but who are concerned about the perception of legal elites that they are denying the next great civil-rights cause. If New York's high court can do it, it can't be blind bigotry or ignorance to reject these claims, can it? Thus, the New York decision could be influential on this issue in a way that, say, the Alabama Supreme Court would not be. The New York opinion may therefore damage the prospects of gay marriage litigants elsewhere.

I would not make too much of this, however. Judges will tend to have a view of the issue going in, and I doubt that they'll be converted by the opinion of four judges in Massachusetts in one direction or four judges in New York in the other direction.

A second effect may be to soften the remedial demands made by future gay marriage litigants. Instead of insisting on full marriage or nothing, as the New York plaintiffs did, perhaps litigants will be more likely to settle for an alternative status, like civil union or domestic partnership, that offers the benefits and rights of marriage without the name. This might marginally increase their chances for success.

Future state courts might see the current landscape as offering three models for resolution of gay-marriage claims: Massachusetts (full marriage), New York (nothing), and Vermont (civil unions, with directions to the state legislature to work out the details.). They might see the Vermont resolution as a middle position between the extremes of New York and Massachusetts, allowing them to give gay couples the benefits and protections of marriage without risking the political backlash that comes with the word "marriage."

A third effect should be to reduce and to delay litigation arising from inter-state conflicts in marriage law. New York is the third most populous state, with a high concentration of homosexuals. Its residents, especially in the city, are highly mobile. In short order, its gay married residents would have moved to or traveled in other states, gotten into legal conflicts with each other or with third parties, and sought some out-of-state recognition for their relationships.

I think discordant state policies in this area can be dealt with under traditional legal principles. And these conflicts will occur anyway, since we already have gay marriage and alternative statuses in a few states. But there is no doubt the sheer number of such issues coming from New York would have heightened tensions over the gay marriage issue very quickly and added to calls for a national resolution via constitutional amendment.

Fourth, perhaps there's a silver lining in the New York loss. Losing such an important judicial decision may force the gay marriage movement to emphasize legislative progress, which will produce gains that are more durable and less likely to infuriate opponents than are court victories. In past columns, I have argued for an emphasis on legislative progress toward gay marriage.

Will the New York decision re-order priorities toward legislation? Certainly in New York the legislature is for now the only available arena. But with Republicans fairly comfortably in control of the state Senate and presently the governor's mansion, gay marriage is not coming to New York anytime soon. Instead, New York will have to be one of the states where, if progress is to be made in the near-term at all, it will have to be made by degrees.

Outside New York, the decision might be the beginning of the end for the strong emphasis on litigation that has marked the early part of the gay marriage cause. Despite the exaggerated claims of some federal amendment supporters, there aren't that many state court systems likely to be hospitable to gay marriage claims for the foreseeable future. (The federal courts are hopeless, as litigation strategists know.) While gay marriage litigation strategists might once have hoped to build momentum for a state-by-state judicial sweep, producing a few initial court victories in very friendly states that would lead to later court victories in less friendly states, that hope has been diminished by the New York defeat and even more by the political backlash to gay marriage.

Once existing litigation has worked its way through those few state court systems where litigants have a reasonable prospect of success, as such litigation is now doing, gay marriage advocates will have to turn primarily to legislatures.

As in other social and political movements in this country, the courts will have helped along the way by highlighting the strength of the principled arguments and especially by getting some isolated experiments started. But there will be no substitute for making the case to the people and their representatives.

The defeat of the federal marriage amendment in the Senate in early June was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate. But there is a cloud behind this silver lining.

The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events:

1. A Supreme Court "victory," ordering all the states to recognize same-sex marriages, a decision that, if it came in the near future, would trigger quick passage of a federal amendment reversing same;
   
2. Unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or
   
3. A proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.

We'll continue to be haunted by this amendment, of course. It will rise from its grave during national election years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it rise again and stumble blindly forward. It's the living dead.

All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 96-4, or thereabouts.

And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. For example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and relations with the Principality of Liechtenstein.

I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-the-gays-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed implicitly to be exploiting.

Even my beloved federalism argument can sound, in the wrong mouth, like "the states should be allowed to do this godawful thing if they want to." Forgive me for not finding much inspiration in that.

Then came the news, the very same day the amendment lost in the Senate, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the foreseeable future anyway, whether by legislative or judicial action, so not much is immediately lost.

But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered "no," we're going to be stuck with many of these state amendments, adopted in a time when we didn't know any better. That will be true at least in those states where a repeal, like the original amendment, will require a super-majority in one form or another. More precisely, "we" won't be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.

With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The likely result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or, in many of these states, civil unions or watered-down domestic partnerships) a try long after experience in other states and countries has shown it's a good idea.

Of the remaining 15 or so states, a few will move legislatively and judicially toward same-sex marriage, but their public-policy advances in this area will be effectively quarantined, at least initially. That's about the rosiest realistic scenario right now for the next couple of decades.

It's not exactly the same as having a federal amendment, which would kill gay marriage in the whole United States for perhaps half a century, but it's the next worst thing.

So the federal marriage amendment is dead. Long live the amendment.

(Washington, D.C., July 4) President Bush will announce today that he has decided to retract his support for a federal constitutional amendment banning gay marriage, says a source within the National Security Agency who monitored a presidential telephone call to congressional allies on the subject.

According to the NSA source, the president will make the following statement:

"Throughout my time as your president, I have made difficult decisions because I thought they were in the best interests of the country. I have stood by the principles that make this country great, and that have served it well for more than two centuries, regardless of the political consequences to me and my party. I believe the people should keep more of their money and that low taxes produce prosperity for everyone, so I have backed tax cuts that were demagogically denounced by members of the other party as helping only the rich. I believe you can plan better and invest more wisely for your future than the government can, so I have supported Social Security reform that many say is the 'third rail' of politics. I believe immigration has made this country great and that people who come here to make a better life for themselves deserve a chance to become Americans, so I have backed a path to citizenship for illegal immigrants despite the intense opposition of many members of my own party. And I think this country has a moral duty to help fledgling democracies and to carry through on its commitments, so I have refused to pull our troops out of Iraq despite the rising unpopularity of the war.

"Two years ago, I announced my support for a constitutional amendment defining marriage as the union of one man and one woman. I strongly believe that's what marriage is and should be. If I were a state legislator or a governor, I'd oppose defining marriage in any other way. I supported the amendment because, at the time, I feared that uncontrollable judges and local officials were recklessly and lawlessly playing with the foundation of the American family.

"But I was wrong. Like others, I overreacted to what seemed like an emergency. I did not have sufficient faith in the historic processes of American government. The local officials who were defying state law in 2004 have been brought into line. DOMA is still good law. The states have begun amending their own constitutions to define marriage. I have appointed many federal judges, including two to the Supreme Court, who will not tamper with marriage. And while I still fear that some state courts will attempt to redefine marriage in years to come, I am confident that the people in those states can deal with their own courts if that is what they choose to do. After all, that is what we have always trusted them to do.

"We may not like the choices some states make about these matters, but if our nation's historic commitment to federalism means anything, it means that the states should, within constitutional limits, be allowed to go their own way on important policy matters. That has been the dominant practice and theory of our federal design for more than two centuries.

"Never before in the history of the country have we amended the Constitution in response to a threatened state court decision. Never before have we amended the Constitution to preempt an anticipated federal court ruling. Never before have we adopted a constitutional amendment to limit the states' ability to control their own family law. Never before have we dictated to states what their own state laws and state constitutions mean. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights. This is no time to start.

"I know this decision will not be popular with many members of my own party. But it is a president's responsibility to lead, not to follow, especially when it comes to matters of important principle. As on so many other decisions I've made, I will not bow to political pressure when I know better. Two years ago, I should have known better. Now I do."

Standing by his side at the news conference will be :

• Vice President Dick Cheney, who said in 2004 that he opposes an amendment because states should be allowed to decide the issue for themselves and that "freedom means freedom for everybody.
  
• Sen. John McCain (R-AZ), the leading contender for the GOP presidential nomination in 2008.
  
• Former Rep. Bob Barr (R-GA), the main House author of DOMA.
  
• Conservative commentator George Will, who announced on ABC's This Week that he opposes an amendment because state experiments with gay marriage may produce valuable information about whether the reform is worthwhile.
  
• Conservative policy analyst James Q. Wilson, who likened a federal marriage amendment to that conservative bete noire, Roe v. Wade, in an op-ed for the Wall Street Journal .
  
• And numerous other life-long conservatives who have consistently championed federalism.

Also present will be First Lady Laura Bush, who recently said that the gay-marriage issue should be discussed "sensitively" and should not be used for political purposes.

Karl Rove, the president's senior political advisor, could not be reached for comment.

The news report comes from HSEPA, the Hope Springs Eternal Press Agency.

The Institute for Marriage and Public Policy, which opposes gay marriage, has just issued a new report finding that relatively few gay couples are getting married in jurisdictions where gay marriage is permitted. Is this correct? If it is, why are there so few gay marriages so far?

Here's a summary of the findings from the report:

The highest estimate to date of the proportion of gays and lesbians who have married in any jurisdiction where it is available is 16.7% (Massachusetts). More typically, our survey of marriage statistics from various countries that legally recognize same-sex unions suggests that today between 1% and 5% of gays and lesbians have entered into a same-sex marriage.

The report derives these numbers by comparing the total number of same-sex marriages in a jurisdiction to an estimate of the total number of adult homosexuals in the jurisdiction (based on survey data). While we could quibble over the estimates of the number of gays in a given jurisdiction, the report uses a range of reasonable assumptions.

Which way do these preliminary findings cut? On the one hand, the report gives some ammunition to opponents of gay marriage, who may argue that marriage will have little practical impact among gays. The legal benefits of marriage will remain unavailable to the many gays who don't marry.

On the other hand, even assuming that marriage rates among gays remain low, there will still be legal, social, and other practical benefits to those gay couples who do choose to marry. To them, marriage will be important regardless of whether others choose to marry.

Low marriage rates among gays make it even harder to see how this tiny fraction of the population will cause any practical harm to marriage as an institution (such as by the flaunting of non-monogamous behavior by some gay-male couples). Of course, if you believe that a "change in the definition of marriage" to include same-sex couples is itself harmful to marriage then marriage will be worse off even if no gay couple actually gets married-but you don't need studies to make this argument. To me, this definitional fear has always seemed far too abstract to count for much.

Assuming it's true that relatively few gay couples are getting married where it's allowed, why is that the case? Many reasons come to mind, especially the fact that even now a gay married couple in Massachusetts is not considered "married" by the federal government and 49 states. This complicates their legal status and precludes them from getting the full benefit of marriage.

Let me address four additional reasons for initially low gay-marriage rates.

1. The idea of marriage is still novel to gay people. As the report suggests, such "novelty" can produce excitement. But it can also produce fear, specifically fear of the unknown. Britney Spears aside, I doubt many people get married for the novelty of it. Marriage is a huge legal and social commitment. People who have never even imagined it would be a prospect in their lives are understandably hesitant.
   
   
2. Gay couples have no gay married role models to follow. Related to this, there is as yet for a gay person no peer or familial expectation that one will get married, as there is for heterosexuals.
   
   
3. Without the social encouragement and support that marriage provides for relationship formation, there are probably relatively fewer long-term and stable gay couples to begin with, and thus relatively fewer couples who would immediately demand marriages. As new relationships are formed under a regime of marriage, more gay couples will eventually reach the point where someone pops the question, "Will you marry me?"
   
   
4. Reinforcing the fear of the unknown is the fact that many gay people have actually constructed an oppositional identity for themselves partly based on the unavailability of marriage. Excluded from marriage, they have made a virtue of this necessity.

This oppositional identity takes many forms in the writings of queer theorists and in the things even ordinary gay people can be heard to say when the subject of marriage arises. One hears expressions like: "We don't need marriage with all its patriarchal and heterosexist trappings." Or: "I don't want to mimic straight people." Or: "Marriage is such a mess, with 50% divorce rates, why would we want to join it?" Or: "Just give us the benefits of marriage and you can keep the word."

Some people will retain this oppositional identity no matter how much time passes. But for others, primarily those younger people whose identities are formed in an environment where marriage is an option, oppositional identity of this sort should fade.

All of this suggests there will be an adjustment period of some duration while more marriage-inclined gay couples form and while marriage becomes a comfortable and normatively appealing option to them.

I doubt that marriage rates among gays will ever equal marriage rates among heterosexuals, primarily because gay couples will be less likely to raise children. Even after marriage culture settles in, straight couples will be most likely to get married, followed by lesbian couples (who are more likely to raise children than gay males), followed by gay-male couples. But a disparity in marriage rates among heterosexual and homosexual couples is not an argument in itself against recognizing same-sex marriages.

Whatever our views of gay marriage, we should not be surprised to find gay couples and communities taking things slowly.

The headline of the lead story in the Bay Area Reporter, San Francisco's gay newspaper of record, said it all: "Gay Families Join Easter Egg Roll."

We've come a long way from the Stonewall riot, the sexual liberationism of the 1970s, and "We're Here, We're Queer, Get Used to It." There are unmistakable signs that the emphasis on relationships and families in gay life, politics, and media is having traditionalizing effects on gay culture.

This is evident in the causes and trends that have dominated the gay movement for the past 15 years or so: serving in the military, joining the Boy Scouts, attending services at large gay-friendly churches, and above all, gay marriage.

This development can even be seen in America's capital of gay sexual liberation, San Francisco. Recent stories in the B.A.R. and the Los Angeles Times document the beginnings of a change in attitudes toward open and explicit displays of sexuality in the Castro. The change is being spurred especially by gay families with children, who want a more family-friendly environment and are chafing at a culture they see as saturated with sex.

According to a recent report in the L.A. Times:

In the Castro, restaurants oriented toward gay singles now offer child-size portions and even highchairs. One coffee shop features a hot chocolate "Castro Kids Special," a popular item during the morning rush that the owners call the "stroller hour."

At Cliff's Variety store, children shop for toy unicorns and jasmine-scented clay putty alongside cross-dressers perusing feather boas and rhinestone tiaras....

Last year, a lesbian mother of two, now 6 and 2, complained about a sadomasochistic tableau in a clothing shop window that featured a male mannequin chained to a toilet. "As an adult I find this disgusting," she wrote in an e-mail to city officials. "As a parent I find it unconscionable."

Just a couple of months ago, the B.A.R. ran several stories about a life-sized wooden statue of an aroused naked man that was displayed in a Castro storefront. Parents in the neighborhood objected that it should not be visible to children who pass by on their way to and from school. After police got involved, the owner reluctantly covered the statue's private parts.

Some business owners are sensitive to families' concerns. A lesbian mother reported to the Times that a clothing store manager helpfully warned her about taking her 12-year-old daughter into a back room where "suggestive leather outfits were displayed." With more children in the neighborhood, she predicted, "businesses that accommodate the sensibilities of families will survive, while those that are less child-friendly will not."

"Our kids need a place in the community," said July Appel, executive director of an organization for gay families and a lesbian mother of two. "The Castro is big enough for everyone. Gay cruising has its place. But so do playgrounds."

The trend is being felt beyond commercial venues, reaching into the heart of gay organizations and events. The annual gay pride parade in San Francisco, by far the largest in the country, now provides a children's area with licensed day care. This year's parade will include a float celebrating gay families, complete with children singing Village People songs.

At the gay community center, nudity is now forbidden in the hallways-requiring bondage classes to stay behind closed doors. "Twenty years ago we couldn't have had such a rule," the center's director, Thom Lynch, told the Times. "People would have fought it."

These changes in San Francisco reflect larger national trends in gay life. According to the 2000 Census, there are about 594,000 same-sex "unmarried partner" households, almost evenly split between gay male and lesbian couples. The Census figure is almost certainly an undercount since many gay couples probably reported their status as "boarders" or "roommates" rather than as "unmarried partners."

Lots of children are being raised by these gay couples. Of the reported female partners, more than a third are raising children. Of the reported male partners, more than a fifth are raising children. That's about 162,000 same-sex households in the U.S. raising children. This number, too, is almost certainly an undercount.

Once we include single gay people raising children, reasonable estimates of the total number of children in the U.S. being raised by gay parents (singles and couples) range from one million to two million kids. By all accounts, the number of gay families is growing.

The effect of all this on gay culture is inescapable. Stable relationships have a settling effect on people. Saturday nights become an opportunity to stay home with your partner watching DVD's instead of another chance for a furtive sexual encounter.

Children encourage yet more domestication. Aside from the practical and time-consuming work that goes into raising kids, which reduces one's energy and opportunities for libertinism, parents tend to be more concerned than single people about a community's moral environment. It's turning out that gay parents can be just as concerned about these matters as straight parents.

"Many gay people once referred to couples with children as 'breeders,' a term with considerable bite to it," the director of the city's gay community center observed. "It's rarely used anymore. Now many gays are breeders as well."

We're here, we're families, let the Easter Egg Roll begin.