IGF CultureWatch

As laws protecting gay Americans from discrimination proliferate, they increasingly conflict with important liberties. The latest example of this clash comes from Massachusetts, where Catholic Charities of Boston has decided to stop providing adoption services rather than comply with a state law prohibiting discrimination against gay couples.

Gov. Mitt Romney (R) has proposed a special exemption from this law for religiously affiliated adoption agencies; gay groups have responded that this would amount to discrimination that places politics before the interests of children. While Romney's motives may be self-serving (he's thinking of running for the GOP presidential nomination), his proposal is defensible on principle and sensible as a matter of politics.

Private agencies contract with the state to provide adoption services. The state pays them money and strictly regulates their operations, including the criteria they use to find homes for children. For the past 17 years, Massachusetts has prohibited such agencies from discriminating on the basis of sexual orientation. This means that Massachusetts adoption agencies may not refuse to consider same-sex couples as adoptive parents.

This is sound public policy. First, gay couples can provide children with very good homes. Indeed, research so far tends to support the thesis that gay parents are comparable to similarly situated straight parents. They're at least competent to raise children.

Second, there's a shortage of good homes for children. In Massachusetts alone, some 682 children now await adoption. It would be cruel to shuffle them from foster home to foster home while turning away perfectly good prospective parents simply because they're gay.

Until recently, Catholic Charities coexisted peacefully with this anti-discrimination policy. During the past two decades, the group has placed 13 children (out of 720) with same-sex couples. Last December, the 42-member lay board of the group voted unanimously to continue the practice.

But there is a chill wind blowing from the Vatican now on all subjects related to homosexuality. The church hierarchy has evidently decided to root out all internal manifestations of opposition to its longstanding belief that homosexuality is "intrinsically disordered." Cardinal Alfonso López Trujillo, Vatican head of the Pontifical Council for the Family, recently said that allowing gay couples to adopt children "would destroy the child's future, it would be an act of moral violence against the child." Catholic Charities is reluctantly bowing to this pressure.

When Gov. Romney proposed a narrow exemption for religiously affiliated adoption agencies, many gay groups reacted angrily. "Denying children a loving and stable home serves absolutely no higher purpose," said HRC's Joe Solmonese. "These bishops are putting an ugly political agenda before the needs of very vulnerable children. . . . What these bishops are doing is shameful, wrong and has nothing to do whatsoever with faith."

In most respects, this statement is wrong. Allowing an exemption would not deny children loving and stable homes. They will get good homes through Catholic Charities, just not good gay homes. Gay couples could still adopt through dozens of other private agencies or through the state child-welfare services department itself, which places most adoptions in the state.

At most it could be argued that allowing Catholic Charities to discriminate would make it very slightly more difficult for gay couples to adopt (since one private agency would not be available to them). If numerous other agencies also began barring gay couples, a real difficulty might arise. But that problem is nowhere in sight in Massachusetts.

While gay advocates may strongly disagree with church doctrine, there's no basis for saying that the Catholic Church's objections to gay adoptions have "nothing whatsoever to do with faith."

Exempting Catholic Charities would serve the "higher purpose" of respecting the deep religious convictions of a major faith tradition, without hurting children or appreciably affecting the adoption prospects of gay parents. That is what we'd ordinarily a call a win-win situation.

I don't think religious objectors should always be completely exempt from anti-discrimination laws (such exemptions are not constitutionally required). If, for religious reasons, a large employer refused to hire gay people or a huge apartment-complex owner refused to rent to gay couples, the harm caused by their actions would potentially be great. It would literally foreclose many important opportunities.

Exemptions to laws of general applicability inevitably raise slippery-slope concerns. All kinds of exemptions exist in all kinds of laws. Each is an invitation to slide down a slope, but we seem to manage it. Title VII is understood to exempt the Catholic Church from having to hire women priests, for example, but that hasn't gutted employment-discrimination protection. There are particular line-drawing problems about what would constitute a "religious" exemption, but those problems aren't peculiar to this case.

If we can grant religious exemptions with little or no burden placed on others, we should presumptively do so. Yes, this allows people to discriminate in ways that seem irrational or even invidious to many of us, but our resulting discomfort is an acceptable price for living in a religiously pluralistic and free society. When there are plenty of alternatives for those discriminated against, continued objection to an exemption seems pretty abstract and illiberal to me.

If we can't respect others' exercise of religious conscience in a case where it costs us nothing to do so, can we really be said to respect religious liberty in a meaningful way at all? In an age when government regulation encroaches on every area of life, to say that we can't make an exemption under circumstances like this is really to say that religion has no place in the public square. I'm not ready to say that.

If respect for liberal principle is not enough, there is also political self-interest in magnanimity. Some opponents of gay marriage have been using this episode to claim, "Aha! This proves that gay marriage will erode religious freedom. Massachusetts has had gay marriage just two years and already Catholics are being forced out of adoptions."

The claim is unfounded, since the conflict here is based on an anti-discrimination law that predates the recognition of gay marriage in Massachusetts. But it is a potent political argument. This episode may unnecessarily fuel not just the backlash against gay marriage but the senseless and cruel drive in some states to ban adoptions by gay parents altogether.

So let them discriminate, but don't let anyone forget what they're doing.

First published in the Bay Area Reporter on February 16, 2006.

Perhaps more than any invention since the printing press, the Internet has decentralized information and opinion. The marketplace of ideas, including ideas about the appropriate tactics and even direction of the gay-rights cause, is more robust than ever. Gay-conservative bloggers and Web sites, of which there are now dozens, are major competitors in this marketplace.

When I began writing my syndicated OutRight column in 1994, a narrow ideological band monopolized the gay press. The views expressed in gay periodicals, either explicitly in opinion columns or implicitly in "news" features, ranged from liberal to radical. It brought to mind what Dorothy Parker once said of Katherine Hepburn's performance in a movie: "She ran the gamut of emotions from A to B." This limited range could and did produce disagreement that the protagonists regarded as profound. But to an outsider it was all pretty dismal.

Gay publishers and editors acted as gatekeepers of opinion, defining what was acceptable. There were a handful of libertarians writing for gay papers, but real conservatives could hardly be found. Even gay periodicals that ran my column back then often felt the need to run a left-wing counterpart, as if doing so was necessary to provide "balance" in a paper already dominated by liberal views and reporting.

Two nearly simultaneous developments changed this. First, beginning in the 1980s mainstream gay people, whose wide spectrum of political views mirrors the country's, came out of the closet in large numbers. They could not be ignored. And they could not understand why their sexual orientation necessarily entailed support for things like high marginal tax rates or liberal abortion laws.

Second, the flowering of the Internet in the mid-1990s ensured that anybody could become a self-publisher whose views were immediately available to millions of people.

The day of the opinion gatekeeper is finished. What has taken its place? A cacophony of views, including those of gay conservatives and libertarians, whose energy and intellectual vibrance seems disproportionate to their numbers.

Here are a few of the Web sites and blogs by gay writers who dissent in important ways from the tactics and goals of the gay left and its organizations. Not all of these writers can easily be categorized as either conservative or libertarian. All are committed to equality for gay Americans.

(1) Independent Gay Forum (www.indegayforum.org): This ought to be the first stop for anyone interested in gay conservative and libertarian views. It features columns from more than 40 different writers (including me) on just about every gay-related topic. It also features a terrific blog called CultureWatch, written by Steph H. Miller, who has something trenchant to say about everything.

(2) Andrew Sullivan (www.andrewsullivan.com): Sullivan is the granddaddy of all bloggers, and easily the most widely read gay blogger in the country, getting 70,000 to 80,000 visits a day. Passionate, perceptive, and wickedly smart, he's interesting and challenging even when he's wrong. Cruise him daily.

(3) Jonathan Rauch (www.jonathanrauch.com): Rauch is one of the most influential and finest gay authors on the planet. He writes for respected mainstream publications, like The Atlantic and National Journal, on a wide range of issues. His recent book, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, is the best and most concise argument for gay marriage I've ever read. While his Web site is not a blog, it will quickly get you to his irreplaceable work.

(4) Bruce Bawer (www.brucebawer.com): Bawer wrote the most important book of the 1990s on gay issues, A Place at the Table. It awakened a generation of gay Americans to the possibility of an alternative to gay-left orthodoxy. Now he's defending classical liberal values against Muslim extremism. Also not a blog, this site will give you entree to Bawer's best stuff.

(5) Beth Elliott (www.thebethzone.com): Elliott, who has been active on gay issues since the 1970s, calls herself "a girl-kissing California girl with a Southern heritage and a Jesuit education." Her irreverent blog effectively takes on lesbian-feminist shibboleths from a libertarian perspective.

(6) Gay Patriot (www.gaypatriot.net): Two skillful and informed pundits take turns whacking at Democrats and the gay left on this blog. It's probably the most reliably conservative gay blog on the Internet.

(7) Tim Hulsey/My Stupid Dog (www.mystupiddog.blogspot.com): Hulsey, a "gay, conservative grad student and former writing teacher," ruminates articulately on culture and politics. When I want a thoughtful analysis of a movie I'm thinking about seeing, I go to Hulsey's blog.

(8) Jon Rowe (www.jonrowe.blogspot.com): Rowe is a libertarian college professor with a law degree. His blog covers everything from constitutional theory to sex to religion, all the things one shouldn't talk about in polite company. It is intelligent, refined, and measured—qualities badly lacking in much of the blogosphere.

There are many more good ones:

• anothergayrepublican.blogspot.com
• averagegayjoe.blogspot.com
• bigapplegop.blogspot.com
• blogcabinca.org
• boifromtroy.com
• bovinestare.typepad.com
• cakeordeath.wordpress.com
• dyneslines.blogspot.com
• gayandright.blogspot.com
• homocon.com
• lloydletta.blogspot.com
• malcontent.typepad.com
• northdallasthirty.blogspot.com
• queer-conservative.blogspot.com
• republicofm.com
• ricksincerethoughts.blogspot.com
• rightrainbow.com
• thatgayconservative.wordpress.com

and too many more to list.

Be aware that many blogs often offer little more than links to, or quotes from, substantive points made by others, contributing nothing original of their own. But whether you're a budding gay conservative looking for some intellectual support or a skeptical gay liberal monitoring the right, you'll find something on the gay-conservative Internet to keep your mind humming.

The analysis of Supreme Court confirmation hearings has become the post-Cold War equivalent of Kremlinology, the study of Soviet behavior relying on exquisitely subtle clues to draw grand conclusions about the future. Is that Chernenko standing next to Brezhnev at the May Day parade? Is Andropov wearing a fedora?

So in the confirmation hearings of Judge Sam Alito, commentators carefully parsed the phrase "unitary executive" that he used in a single speech five years ago. They alighted when Alito described the "one-person/one-vote" principle as "settled law" but described Roe v. Wade as a "precedent entitled to respect." Did this signal he would vote to overrule Roe?

Did Gorbachev wink when that SS-25 ICBM passed by? Or was it just something in his eye?

All this speculation arises because nominees have learned that the way to get on the Supreme Court is to say nothing and to say it in as moderate and monotone a manner as possible.

Over more than two days of testimony before the Senate Judiciary Committee, Alito said almost nothing. When asked about this or that precedent, his stock response was to describe the holding of the Court, say it was entitled to respect, and then say he could say no more because the issue might come before him.

This convention of obscurantism in the Supreme Court nomination process puzzles me. I don't see why a nominee can't express a general view about a precedent or doctrine (without promising how to vote) when it's perfectly acceptable for a sitting justice to announce in one opinion that he supports (or opposes) a precedent and then to decide future cases related to the same precedent.

Notwithstanding the deliberate opacity of the confirmation process, is there anything about Alito that should give gay Americans concern?

The national gay groups all oppose Alito, and did so even before his confirmation hearings. But they have pretty much taken themselves out of any serious debate about President Bush's judicial nominees. Their position is basically this: "We have a specific pro-gay agenda, which we understand to include the right to abortion without restrictions. We want to advance this agenda, to the extent possible, through the courts. We oppose any nominee for whom there is no affirmative evidence that he fully supports our agenda and is willing to advance it judicially."

Since no Republican judicial nominee is going to meet this test, national gay groups might as well announce that they will oppose any and all judicial nominees for the remainder of the Bush presidency and be done with the matter. Their opposition will be ineffectual, as it has been on all of Bush's nominees. But at least we could dispense with the charade that they actually care about, and have "analyzed," an individual nominee's record.

The best that the Lambda Legal Defense and Education Fund could do to muster a case against Alito was to point out that he is a conservative, that he thinks there were excesses of judicial activism in the 1960s on matters like criminal defendants' rights, that he opposed Roe in 1985, that he has a "strong allegiance to 'free enterprise' " (quel horreur!), that he interprets certain employment-discrimination laws more narrowly than Lambda would, and that he would not always remove the displays of menorahs and creches from public land.

Where was the gay-rights issue in that litany?

I see nothing either very promising or very threatening in Alito's record when it comes to gay issues. That's not to say he couldn't turn out to be an imitation of Justice Antonin Scalia on gay rights. That would be terrible: Scalia has been actively hostile and even disparaging on the subject. But Alito could also turn out to be surprisingly receptive to certain gay-rights claims, as Reagan-appointee Justice Anthony Kennedy has been.

At his hearing, Alito announced that he supports the constitutional right to privacy that is the underpinning for the Supreme Court's decision in Lawrence v. Texas striking down anti-gay sodomy laws. He further suggested that he believes this right extends to unmarried people. He was not asked to comment beyond that.

While he supports federalism and "limited government"-more right-wing ideas Lambda finds troubling-Alito told the Senate that he could not think of any reason why Congress could not pass a law protecting gays from employment discrimination.

There's more. Alito appears to be very strong on free speech, which has been critical to the gay-rights cause. As a federal appellate judge, he supported the transfer of a gay student to another school to escape harassment. After the hearing, even NGLTF observed that Alito "registered immediate, palpable and sincere horror and disgust" at the anti-gay statements attributed to an alumni group of which he had once been a member.

Alito is not going to bring us gay marriage, but neither is anybody else on this Court. He will probably not vote to strike down the military's exclusion of homosexuals-also probably a strong majority view on the current Court. He will defer to Congress and to the states, to a very large extent, on what public policy toward gays ought to be.

That is, reading between the lines of his testimony and making predictions about his future conduct as compared to what his predecessor's might have been on specifically gay issues likely to come before the Court, Alito's appointment probably leaves us about where we were before.

In a 1980 essay entitled "The Boys on the Beach," conservative writer Midge Decter described the gay men who summered at Fire Island in the 1960s:

No households of wives and children requiring security; no entailments of school bills, doctor and dentist bills; no lifetime of acquiring the goods needed for family welfare and the goods desired for family entertainment, with a margin left over for that greatest of all heterosexual entailments, the Future: no such households burdened the overwhelmingly vast majority of homosexuals.

Homosexuality, argued Decter, is a flight from adult responsibility. Heterosexual men who accept their share of the burden to raise the next generation feel "mocked," especially by gay men, because male "homosexuality paints them with the color of sheer entrapment." Being gay, she concluded, means "taking oneself out of the tides of ordinary mortal existence."

From early on in Brokeback Mountain, the Oscar-contending film by director Ang Lee, I found myself thinking about Decter's essay.

The basic story is by now familiar: two young men, Ennis Del Mar (Heath Ledger) and Jack Twist (Jake Gyllenhaal), meet and fall in love in 1963 while tending sheep in the mountains of Wyoming. Subsequently, they each get married and have kids but get together a couple of times a year to go "fishing," the euphemism they give their wives for the periodic renewal of their affair. The story ends in 1983.

There's much to admire in this film. Ennis and Jack bust stereotypes of gay men. They aren't effeminate. When they meet, they are modern "cowboys" who live on profanity, fighting, country music, beer, and hard work for low pay. Yet their masculinity is also not the posed hyper-masculinity of leather, Levi, and uniform fetish scenes.

There's no mention of Stonewall, Harvey Milk, or even San Francisco. It's a welcome corrective to the urban-centered study of gay life in America.

For the most part we do not see sensationalized homophobia. That would be too easy. Instead, we see the everyday contempt for gays that still suffuses life in much of the country. Disdain for homosexuals mostly comes to Ennis and Jack in the sneers of others and in their own shame.

Still, the film-or more precisely, the gay reaction to it-offers some support for the hoary notion that homosexuality is "taking oneself out of the tides of ordinary mortal existence." Critics have rushed to praise Brokeback Mountain as a universal love story. Perhaps that's true, but it's not the whole story.

It's almost never mentioned that their affair is juxtaposed to the consequences of neglecting life's obligations. The first time Ennis and Jack have sex they shirk their responsibility to watch the flock. That night, a sheep is killed by a wolf; the aftermath is graphically depicted. A large portion of the flock is ultimately lost while they frolic.

More importantly, in their occasional fishing retreats, Ennis and Jack leave behind families. They are adulterers. This doesn't seem so terrible in the case of Jack, whose cartoonish wife is obsessed with her career and her press-on nails. But in the case of Ennis the result is poignant. Rushing out of the house to meet Jack, Ennis bodily passes off his two daughters to his wife (Michelle Williams), who stoically bears the burden left by a homosexual fleeing his entrapment. Eventually they divorce.

The film speaks powerfully to the sense of lost love and opportunity every closeted gay person must feel. "Heartbreaking" is not too strong a word to describe the loss this film confronts us with. But it's difficult to buy the widespread idea that the love between Jack and Ennis is an unvarnished good thing made tragic only by a homophobic world.

Part of the reason is that the love story itself is a bit strained. Hollywood delights in acting of the stumbling-and-mumbling sort (think James Dean and Marlon Brando) because it is thought to convey authenticity. Ledger in particular nails this style. But the spare dialogue between Jack and Ennis puts a lot of interpretive pressure on the meaningful glances they exchange.

Their sexual intimacy seems contrived. The sex-full of wrestling and snorting-is the kind that a person who's neither gay nor a cowboy imagines gay cowboys must have.

But the deeper reason their love doesn't completely register is that every time they go off together one is left wondering, what about the kids? What Ennis and Jack experience as an exhilarating liberation from the mundane and the stifling is for their families an abandonment. Ennis at least talks about living up to his familial obligations, but in truth he's checked out of them almost from the start.

For these reasons, I couldn't quite join in the symphony of sniffles I heard in the theater at the undeniably sad end of the film.

Yes, the world around Ennis and Jack channeled them into unhappy heterosexual lives. All concerned-including their families-would have been better off if that hadn't happened. By itself, that's a powerful argument against homophobia.

I don't have good answers to the problems confronting Ennis and Jack in their time and circumstance. I only have more questions than are currently being asked. Once families have been formed, do the interests of those families count for anything at all? Do we think Ennis and Jack have no obligation except to fulfill their own deepest desires? Do we really believe that the only tragedy in the film is the thwarted love of these two men? Why is nobody in the gay community even considering the moral complexity Brokeback Mountain presents?

Which brings us back to Midge Decter. Much that's happened in the past quarter-century has thoroughly discredited her view of homosexuality as escapism. She was wrong about gays even then, and she's more wrong now. But you would not know that from the sentimental and myopic reaction to this film, which sees in a multi-layered calamity only a beautiful but doomed gay romance.

May the federal government deny funds to universities that ban military recruiters from campus? That's the issue placed before the Supreme Court in Rumsfeld v. FAIR, which challenges the constitutionality of the "Solomon Amendment." While gay-rights groups are strongly backing the universities, it's not a simple question of "pro-gay" vs. "anti-gay." The case implicates gay rights only because it involves a larger phenomenon: the federal government throwing around its enormous economic weight to curtail the exercise of individual rights and federalism.

The Solomon Amendment denies almost all federal funds to any university that forbids military recruiting in its facilities. An entire university loses this funding even if only a "sub-element" within the university (e.g., a university's law school) denies access.

The law runs afoul of many universities' non-discrimination policies. The military bans service by openly gay personnel. Thus, many universities would like to prohibit military recruiting on their campuses, just as they exclude other employers that discriminate for reasons they believe are invidious.

At the same time, as a practical matter, universities can't afford to lose federal funding. The Solomon Amendment puts at risk more than $35 billion annually for, among other things, critical university-based scientific and medical research. For some schools, it amounts to as much as 20 percent of their budgets.

The constitutional argument against the Solomon Amendment entails two steps:

First, do the schools have a constitutional right to exclude military recruiters?

Second, assuming they do, is it violated when the federal government threatens to withhold funds if they exercise it?

The schools, backed by gay-rights groups, claim that excluding military recruiters is part of their First Amendment freedom of association. This claim rests heavily on a 2000 decision, Boy Scouts v. Dale, in which the Supreme Court held that the Boy Scouts had a constitutional right to exclude a gay scoutmaster despite a state anti-discrimination law requiring that he be admitted.

Here is where some irony begins. When Dale was decided, most gay-rights activists denounced it as "anti-gay." Yet it is the very freedom recognized in Dale that they now invoke. Thus, a decision defending the right to exclude gays is now being used to defend the right to exclude those who exclude gays. At the same time, some conservatives who hailed Dale as a great victory for freedom five years ago are now arguing for a crabbed interpretation of it.

If the Supreme Court is serious about associational and speech rights, the schools should win on the first question. The government could not mandate that universities allow military recruiters to use their facilities.

But can the government deny them funds when they don't provide access to military recruiters? That's the second and much harder question.

Generally, the federal government can tell the states or private entities how to use specific grants they receive. For example, it can require that education funds be spent on education, not road projects.

However, the government generally may not condition the receipt of a government benefit on the relinquishment of an unrelated constitutional right. For example, it cannot give food stamps only to people who agree not to criticize the war in Iraq. This is called the "unconstitutional conditions" doctrine.

The Solomon Amendment is closer to an unconstitutional condition than to a constitutional limit on the use of funds. It attempts a sweeping denial of almost all federal assistance to an entire educational institution merely because one part of it-a part that might itself receive no federal money-refuses to allow the military to recruit on campus. The condition (the university must allow on-campus military recruitment) and the purpose for which the conditioned funds are spent (say, for cancer research) are unrelated.

If that's right, however, it might call into question the government's power to deny federal funds to universities that discriminate on the basis of race or sex, a funding condition the Supreme Court has approved. Perhaps a principled distinction can be made between the military-recruiting condition and the anti-discrimination condition. The anti-discrimination condition directly relates to all aspects of life, including research and employment, in every university that receives federal funds; the military-recruiting condition does not relate directly to, say, a study on improving soybean production.

But my guess is that the justices will not even try to make the distinction. Conservatives on the Court will probably uphold the Solomon Amendment because it involves the claimed needs of the military; liberals on the Court may uphold it because they don't want to undermine federal power.

Meanwhile, few seem to have noticed the real issue. Federal power nowadays is not exercised primarily through the threat of criminal punishment. In an age where its budget reaches the trillion-dollar mark, federal power is now exerted most effectively through the conditions attached to that enormous spending. Such economic might has a decisive effect in both the marketplace of goods and in the marketplace of ideas and other freedoms.

The federal government thus "buys" through economic coercion what it could not directly regulate. Either way, the result is the same: less freedom and diversity. In this case, every major educational institution in the country has been cowed on an important matter of principle. The states, too, can be brought to heel by such conditions imposed by federal authority.

Gay rights are at stake in this case not because one side is necessarily "anti-gay," but because the future of freedom in the age of the federal behemoth is itself at stake.

With the huge loss in Texas, we're now 0-19 in popular votes on gay marriage. Not one of those losses has even been close. What do we do now? First, try not to despair. We need to take a long, historical view of all this. Second, let's try to learn something from the losses. There are many more such votes to come, including probably an all-important one in California next year.

On Nov. 8, with 76 percent in favor, Texans voted for a state constitutional amendment to define marriage as the union of one man and one woman. What more it might also be interpreted to prohibit will rest in the hands of the socially conservative and overwhelmingly Republican elected state judiciary, from whose "pro-gay" activist grip the amendment was supposed to save the state. The amendment has done lasting damage to gay couples and families in Texas.

There was a time just a couple of years ago when it seemed to many gay-marriage supporters that the fight would not only be won but won fairly quickly. Private companies, cities, and even states were moving toward the recognition of gay relationships. The Supreme Court struck down sodomy laws. That was quickly followed by full gay marriage in Massachusetts. One national poll showed support for gay marriage around 40 percent, an astonishing figure given that the idea had barely reached national consciousness.

But polls are never trustworthy on controversial social questions and opponents of gay marriage had a trump card-the voters. They have used the public's simmering anger at judicial activism to goad the states into passing sweeping amendments that have actually turned back the clock on the legal rights of gay families.

Despite this backlash, we have to take the long view of this struggle. Consider Massachusetts, the birthplace of gay marriage in the U.S.

In the first half of the twentieth century, Massachusetts banned contraceptives-even if used for medical reasons and even if used by a married couple. Birth-control advocates tried in vain year after year to get the state legislature to repeal the law.

Finally, they succeeded in getting the issue put to a popular vote in 1942. During the repeal campaign they faced a barrage of attacks from the Catholic Church, including the slogan, "Birth Control Is Against God's Law-Vote NO." On November 3, birth-control advocates lost by a large margin, 58 to 42 percent.

In 1948, they lost again in a popular referendum by an almost identical margin. Not until 1966 did the Massachusetts legislature revise its anti-contraceptives law to allow married people to get them, and then only in response to the Supreme Court's decision to strike down an almost identical Connecticut law the year before.

Today, the use of contraceptives is widespread and uncontroversial. Massachusetts is one of the most socially tolerant states in the country.

The gay-marriage controversy is not exactly like the birth-control controversy, of course. Opposition to contraceptives was limited almost entirely to Catholics, whose faith taught that their use violated natural law; mainstream Protestant denominations had no problem with contraception. By contrast, opposition to gay marriage is broad and deep in all mainstream Christian denominations.

But progress can be made. While a majority of the Massachusetts legislature voted to ban gay marriage in 2004, that majority had evaporated by the next year. Now Massachusetts may become the first state to approve gay marriage by popular vote if the issue ever reaches the ballot there.

Like other advocates of ideas once thought dangerous, gay-marriage supporters will lose many battles. Since no serious constitutional scholar believes the Supreme Court is going to hold traditional marriage laws unconstitutional anytime in the near future, we are likely in for a long slog unaided by very much federal court intervention. We might as well prepare for it.

That leads to the second question, what can we learn from our losses? One thing that does not usually work is trying to change the subject. Like all of the anti-amendment efforts before it, the Texas "No Nonsense in November" campaign tried to make the vote about anything but marriage: the irresponsibility of the legislature, the sinister politics of the amendment sponsors, etc. At the end, some opponents of the amendment were even warning that it banned marriage itself.

For voters, these ballot campaigns are about gay marriage. Until we're prepared to defend gay marriage on the substance, the voters will ignore us. (California may well present a more complicated case, about which I'll doubtless write more in the future.)

That's not to say we will start winning these campaigns by being more honest. Nothing we said could have saved us in Texas. But at least we can begin to inform voters about why gay marriage is a good idea. That is the necessary foundation for the long-term democratic support we must build.

The second thing we must do is try to enlist a broader spectrum of allies. Left-wing coalitions, like the one No Nonsense so proudly put together, are never going to win ballot fights over marriage. This means working especially hard to sign up as many moderates, conservatives, and people of faith as possible. It also means emphasizing the types of arguments that appeal to such people.

The race for gay marriage is far from lost. But it is a marathon, not a sprint. And it will require smarter running.

If we do better than expected when Texans vote on an anti-gay marriage amendment on November 8, much credit should go to the National Gay and Lesbian Task Force. NGLTF is airing seven ads on Houston-area television stations. They are the first-ever to defend the idea of gay marriage, and they do so on essentially conservative grounds.

In contrast to the badly flawed, Texas-based "No Nonsense in November" campaign (which I criticized in detail two weeks ago in this column), the NGLTF ads are right both tactically and substantively. They could provide a template for future marriage-amendment campaigns.

Tactically, the ads are exactly right. They are being aired in Houston, which should be the center of efforts to defeat Amendment 2. All of them depict actual Houston residents speaking against the amendment.

Turnout in the state for this election is expected to be very low, perhaps under 10 percent of registered voters. Yet turnout in Houston, where municipal elections are being held the same day, should be disproportionately high. Urban Houston voters are somewhat more socially tolerant than voters elsewhere in Texas. Four years ago, they almost defeated an effort to ban same-sex domestic partners benefits for city workers.

NGLTF's limited resources are thus being spent wisely. By contrast, the No Nonsense campaign is based in Austin, 160 miles away from the center of the action. Yard signs produced by No Nonsense have been scarce, even in Houston's gay neighborhoods.

Substantively, the NGLTF ads are impressive. Four of the seven feature gay couples. In one, a woman identified as a "Reverend," sits beside her partner in their home. She says: "God loves us like everyone else, and wants the same thing for us as God wants for God's straight children." Her partner adds that when she proposed, she intended a "long-term commitment." The picture fades to black and the following message appears in stark white letters: "How would you feel if you couldn't marry the person you love?"

In another of the gay-couple ads, two men are described as "Together for 18 years." A third gay-couple ad describes a woman as "Committed to partner, Anita, for 21 years." She tells us hers is a family "in every sense of the word."

The two most effective of the seven ads feature parents talking about their love for their gay son and their hopes for his future. In one, the mother emphasizes her religious beliefs. "My entire Christian faith can be summed up with Jesus Christ's two new commandments," she says, "which was to love God and to love each other. He didn't say, 'Love each other unless they're gay.' "

In the other ad, the same mother delivers an eloquent description of the meaning of equality. "My children want the same thing their father and I wanted," she begins. "A home, a community, a church, friends, a job. . ." Here the father chimes in, "and someone who loves them." "And someone who loves them," she repeats. Describing her son's relationship with his partner, she closes by saying, "I hope they're together forever." The screen fades to black with the message, "Gay people want what we all want."

The NGLTF ads are simple and powerful. They don't talk about abstract "rights." They don't list all the legal benefits of marriage, as if this were a struggle over the tax code. There is nothing post-modern about them. There's not a single sexual liberationist in sight.

Instead, the ads emphasize the needs of real gay families, including the children they're raising. They highlight long-term commitment by gay couples. They use religious faith, spoken by religious people, as an argument against the amendment. And they focus on the similarities-not the differences-between gay and straight Americans.

Most significantly, they begin to make the positive case for gay marriage. They are not shy or apologetic about it. They do not say that the amendment is "unnecessary" because gay marriage is already banned (although that's true). They don't complain about how broad the amendment is (although it is very broad). They don't warn about Machiavellian politicians pushing the amendment (although that's a big part of the reason this is even on the ballot). They are not in the least politically partisan.

Like it or not, when these anti-gay-marriage amendments reach a ballot, most people do not vote on these sorts of legal and political-insider issues. They vote on marriage.

NGLTF's strategy is a dramatic-and needed-departure from the losing anti-amendment campaigns everywhere else in the country. By contrast, the No Nonsense campaign has avoided the "M" word like the plague and has been partisan Democratic in an overwhelmingly conservative and Republican state.

Where the state-based campaign is a tired rehash of losing themes from other amendment fights that have danced around gay marriage and left our side dispirited, NGLTF's ad campaign is refreshingly honest and principled. The amendment, it says simply, should be defeated because gay marriage is good.

For Texas, it may be too little, too late. But if tried elsewhere, this straightforward message might help us pull closer. At the very least it begins the long-term process of convincing Americans there is nothing to fear from gay marriage.

Marriage. Commitment. Families. Children. Faith. I never thought I would see this day, but NGLTF is making the conservative case for gay marriage.

The NGLTF ads can be viewed here.

The contending sides in the gay-marriage controversy often seem to talk past one another. They start from such radically different premises that it is hard to speak of genuine "debate" at all. One side says the issue is a matter of basic human rights; the other says it is about preserving a traditional form that is the basis for all successful human societies. On this issue, Left and Right differ dramatically on law, history, culture, social science, and philosophy.

But among conservatives, the debate is far more interesting and potentially more fruitful. Most conservatives oppose gay marriage. Indeed, the conservative columnist Maggie Gallagher says it means "losing American civilization."

Conservatives are not unanimous, however. Beginning in the 1990s, a few prominent gay intellectuals like Andrew Sullivan and Jonathan Rauch began making what Sullivan called the "Conservative Case for Gay Marriage." This "conservative case" has rested on the idea that marriage would benefit gays, generally by encouraging long-term commitment among gays and particularly by settling gay men. It would therefore benefit our whole society.

Since then, David Brooks, a conservative columnist for the New York Times, has publicly embraced the idea. George Will, a prominent conservative commentator, believes we ought at least experiment somewhere with gay marriage to see what effects it produces. A much larger number of American conservatives oppose a federal marriage amendment, maintaining that the issue ought to be left to the states to decide for themselves.

But it must be admitted that the idea has not exactly lit a fire of support under most conservatives. In the interest of advancing the debate a bit, let's see if we can establish some common ground among conservatives on the subject of gay marriage.

There are 10 premises in this debate that most conservatives, opponents and supporters of gay marriage alike, probably share:

(1) Marriage benefits society, and so anything that harms marriage harms all of us, whether married or not.

(2) Marriage directly benefits the individuals married.

(3) It is on average better for children to be raised by two married parents than to be raised by single parents or by unwed cohabiting partners.

(4) Because of the benefits identified in Premises 1-3 above, marriage should be encouraged by public policy and specifically should retain its privileged position in the law.

(5) It is socially preferable for gay persons to be in committed relationships than to be promiscuous.

(6) If any significant change to an important social institution like marriage is undertaken at all it should occur slowly and incrementally, state-by-state, rather than in one fell swoop (as by court-ordered, nationwide gay marriage), so that we can assess the impact of the change and adjust the direction of reform or completely halt the reform.

(7) Proposals for change in policy about an important social institution like marriage must take account of the social effects of the change, as observed or as reasonably predicted, not simply the "rights" and interests of those advocating the change.

(8) Proponents of change in an important social institution like marriage bear the burden of persuasion.

(9) Marriage should remain reserved for two adult persons not closely related by blood.

(10) Whatever public policy is adopted on the subject of gay marriage, churches and religious authorities must remain free to refuse to recognize such marriages if they wish to do so.

Note how much this common ground separates conservatives from the left, including the gay Left, much of which is suspicious of marriage and so might well disagree with at least the first eight premises and perhaps even with the ninth and tenth premises.

Of course, some of these premises are stated in a way that masks important areas of disagreement among conservatives. For example, pro-gay-marriage conservatives believe that the benefits of marriage to children identified in Premise #3 will also accrue to children raised by same-sex married couples; conservatives who oppose gay marriage doubt this. Also, some conservative opponents of gay marriage might argue that, regarding Premise #5, while gay monogamy is better than gay promiscuity, gay chastity would be preferable to either. We will have to address such differences.

But, stated at the level of generality at which they are stated above, I think most conservatives can agree with each premise as far as it goes.

Hardly anyone seems aware of it, but on Nov. 8 Texans will vote on an unusually far-ranging state constitutional amendment banning gay marriage and anything "similar" to it. Since it's an off-year election, the turnout is likely to be very low. It's an excellent-almost unique-opportunity to make a strong showing in a state where we should be blown away. But the campaign against the amendment has been lackluster and marred by poor tactical and substantive decision making.

The proposed state constitutional amendment would define marriage as the union of one man and one woman. Nothing surprising there. But its second sentence goes on to prohibit the state and any of its political subdivisions (like counties and cities) from creating or recognizing any status "identical or similar" to marriage.

That means civil unions are out, and it probably prohibits broad domestic partnership programs, too. The amendment might also make enforcement of some private agreements between same-sex partners more doubtful since enforcing them might require a judge to "recognize" a relationship "similar" to marriage.

The Texas Marriage Amendment is thus among the most sweeping amendments proposed anywhere in the country. The damage it would do is huge and long-lasting. Short of a ruling that it violates the federal constitution, it could not be reversed except by another state constitutional amendment. That would require a 2/3 vote in both houses of the state legislature, followed by another popular vote. It will be a very long time before a majority, much less a super-majority, of the Texas legislature supports gay marriage or anything like it.

Around the country, state marriage amendments have passed by wide margins. The closest margin came in relatively liberal Oregon, where 56 percent of voters approved it. The largest came in ultra-conservative Mississippi, where 86 percent of voters approved it. In states that border Texas-Louisiana, Oklahoma, and Arkansas-anti-gay-marriage amendments passed with votes of 78 percent, 76 percent, and 75 percent, respectively. Needless to say, fighting the amendment in Texas is an uphill battle.

But two factors make the Texas marriage fight somewhat different, offering the potential of at least a closer margin than in neighboring states. First, the Texas amendment is coming up for a vote in an off-year election in which perhaps only five to seven percent of registered voters would ordinarily bother to show up. This means that a motivated and well-organized minority of voters (like gays or religious conservatives) could make a difference. Most of the other state-marriage referenda around the country have coincided with high-turnout general elections, like the fall 2004 presidential race, where even an intensely concerned minority is overwhelmed.

Second, the only major city in Texas that will decide important local elections in November is Houston. Houston voters, already a huge portion of all voters statewide, should therefore be an even larger factor in this election. And Houston voters are more socially tolerant than voters elsewhere in the state.

When Houston's disproportionate voice and its relative gay-friendliness are combined with a depressed turnout elsewhere in the state, we have an almost ideal circumstance for a marriage vote. With a smart campaign, we could be in a position to keep the "yes" vote under 65 percent, which would have to be counted as a moral victory.

But, alas, the anti-amendment campaign has been inept. Start with the campaign director, Glen Maxey. In the 1990s, Maxey served a few undistinguished terms as a Democratic state representative from a liberal district in Austin. He was the first (and so far only) openly gay person to serve in the state legislature. But whatever laurels he earned from that status have long since wilted.

The anti-amendment campaign is running under the alliterative but oblique slogan, "No Nonsense in November." While Houston should clearly be the focus of anti-amendment organizing, the No Nonsense organization is based in Austin.

Evidence of gay-community apathy is everywhere. There are hardly any yard signs visible in Houston's heavily gay neighborhoods. (No Nonsense is trying to sell the signs instead of giving them away.) Go to a gay bar and few of the patrons have even heard there's an amendment on the ballot.

Maxey and his friends among the Texas gay civil rights establishment are fond of coalitions. In a conservative Republican state, here's the coalition they have put together to defeat the amendment: Among the eight "featured sponsors" of the anti-amendment campaign are three partisan Democratic groups, two leftist groups that promote "social justice," one statewide gay group that barely pretends to work with Republicans, and another that was founded by the daughter of former Democratic governor Ann Richards. This is, to be sure, a "coalition." It is a losing coalition.

Go to the No Nonsense website and you find a confused, unattractive jumble of logos, icons, and blinking mantras. Click "talking points." There, the very first argument against the marriage amendment is one that practically cribs from press releases of the state Democratic party. No Nonsense argues that instead of passing a marriage amendment, the Republican-dominated state legislature should have concentrated on "real solutions" like child healthcare and equalization of public-school financing.

There is not one word under "talking points" arguing that gay marriage itself is a good idea. An opportunity to educate people about gay marriage is being lost. And so is another amendment campaign.

How did John Roberts do at his hearing to be the next Chief Justice of the Supreme Court? Before the hearing, I laid out five subject areas of most importance to the liberties of gay Americans. Based on his replies, Roberts did well in four of the five areas. On the fifth, he was forgivably silent.

Let's review the five areas:

1. Does Roberts believe there is a constitutional right to privacy? If so, what would be his methodology in deciding whether a particular activity fell within the protection of this right?

Relying on two-decade old memos that Roberts had written as a young lawyer in the Justice Department, gay groups opposing Roberts before his hearing had cast doubt on whether he supported a constitutional right to privacy. The right to privacy was a basis for the Court's 2003 decision in Lawrence v. Texas striking down state sodomy laws.

"I think there is a right to privacy protected as part of the liberty guarantee in the due process clause," Roberts testified. This statement is especially significant because many conservatives have criticized judicial decisions protecting, under the word "liberty," fundamental rights not specifically found in the text of the Constitution. Roberts elaborated by saying that the right to privacy extends to both married and unmarried people.

Perhaps even more importantly, Roberts distanced himself from some judicial conservatives who advocate strict adherence to the specific, original intentions of the Framers. Words like "liberty" and "due process," he argued, are so broad that they seem designed "to apply in a meaningful way down through the ages." Robert Bork must have choked on his martini olive when he heard that.

While Roberts declined to say specifically whether he supported the result in Lawrence, that demurral was expected. The modern conventions of the judicial-appointments process call on judicial nominees to avoid commenting directly on recent or controversial cases or issues that might come before the Court. I think this convention is questionable, but throughout the hearing Roberts was well within the practice of his recent predecessors, including President Clinton's nominees.

2. Does he believe Congress has the constitutional power to enact civil-rights laws that forbid private discrimination?

Before the hearing, gay groups had suggested that Roberts might have a very narrow view of federal power that would prevent Congress from banning things like private employment discrimination against gays.

While Roberts understandably declined to answer whether the proposed Employment Non-Discrimination Act (barring anti-gay job discrimination) would be constitutional, he did say that a federal statute barring race and sex discrimination in employment was constitutional under Congress's power to regulate commerce. For purposes of commerce regulation, there's no reason to distinguish banning race and sex discrimination from banning sexual-orientation discrimination.

3. Does he believe Congress has the constitutional power to strip the federal courts of all jurisdiction to decide particular issues?

Relying on the same old memos, gay critics before the hearing feared that a Justice Roberts would vote to let Congress forbid federal courts even to hear gay-marriage cases or other claims. Again, Roberts declined to answer specifically whether Congress has such power, citing the fact that these are live matters of controversy in Congress. But he made it plain that he believes such measures are a bad idea because they prevent the Court from ensuring uniformity in the law through its decisions.

4. Does he think a state may forevermore strip a single group of all civil-rights protections?

Gay critics had suggested Roberts might disagree with the 1996 decision in Romer v. Evans, in which the Court struck down a Colorado state constitutional amendment stripping homosexuals of all civil-rights protections.

Because Romer is so recent and controversial, Roberts refused to answer whether he supported it. Given the practice of recent judicial nominees, there was nothing untoward about that. Unfortunately, none of the Senators probed the larger question about the constitutionality of the type of laws at issue in Rome. This senatorial negligence can't be held against Roberts.

I must acknowledge, though, that we can't take much comfort in Roberts's pro bono work for the gay side inRomer. He made a point of saying that he was just doing his job as a lawyer in the case and that he might have worked for the anti-gay side had they reached him first.

5. When, if ever, does he think the Court should adhere to a decision that he believes was wrongly decided?

On the question of stare decisis, Roberts was effusive in his strong defense of stability and continuity in the law. He was so adamant about this, in fact, that many legal scholars came away convinced that he would not even vote to overrule Roe v. Wade, the abortion decision that gay groups like HRC seem most anxious to preserve.

Roberts's respect for precedent bodes well for keeping Romer and Lawrence, even if Roberts disagrees with them. If anything, his promotion to Chief Justice will likely make him even more cautious about radical doctrinal changes that might undermine public respect for the Supreme Court.

About the only thing he got plainly wrong was his praise of "Doctor Zhivago," a dreary bore of a movie.

We can't know for sure what he'll do when he's on the bench. He may thoroughly disappoint us. Overall, however, we're entitled to a sigh of relief. "He is not in the mold of Scalia and Thomas," said one prominent conservative legal theorist, with evident disappointment. If Roberts had been defeated, as prominent national gay groups advocated, we could have done much worse.