IGF CultureWatch

There's no putting lipstick on this pig. Unless he changes his mind, California Governor Arnold Schwarzenegger will become the first executive anywhere in the world to veto a law allowing gay couples to marry. In fifty years, when the gay-marriage controversy will be history, nothing he has done as governor will be remembered more than that.

Make no mistake: the passage of a gay-marriage law by the California legislature was momentous. Even five years ago, having a legislative body in the United States approve gay marriage was unthinkable. Legislators fret about re-election and until now even the most liberal of them have justifiably worried that a vote for gay marriage would be the kiss of electoral death. If the brave California legislators who voted for the bill survive the next election, politicians around the country will finally have some evidence that they can safely support gay marriage.

Then there's Schwarzenegger, who came to office with the panache of a movie star, the swagger of a former body-builder, and the moral authority of a man unsullied by politics. He was refreshing. He could say what he thought and do what he wanted. He skillfully used his popularity to reshape politics and policy, for the better, in a state with ten percent of the population of the country.

Predictions that he would be an anti-gay governor, that he would support repealing domestic-partner benefits, and even that "our very lives" depended on defeating him (as one gay Democratic state legislator warned), were unfounded and proved untrue.

Instead, Schwarzenegger has signed pro-gay legislation. Just last week his spokesperson declared that he "believes that gay couples are entitled to full protection under the law and should not be discriminated against based upon their relationship." Schwarzenegger, she continued, "is proud that California provides the most rigorous protections in the nation for domestic partners." These are revolutionary statements for a Republican; indeed they're miles ahead of many Democratic politicians around the nation.

Schwarzenegger opposes "discrimination" against gay couples. Now, with history and equality staring him in the face, he is about to blink. Why?

The coy explanation given by his spokesperson last week was this: "Five years ago the matter of same-sex marriage was placed before the people of California. The people voted and the issue is now before the courts. The Governor believes the matter should be determined not by legislative action-which would be unconstitutional-but by court decision or another vote of the people of our state."

There are several things to unpack here. First note what this explanation does not say. It does not say that the governor will veto the marriage bill because he opposes gay marriage. Opposition to gay marriage itself would have been the most obvious-and defensible-reason to veto the bill.

But Schwarzenegger could not oppose gay marriage and be true to his publicly stated commitment to "full protection" for gay couples. Until he tells us otherwise, we must therefore presume that he supports gay marriage or at least that he sees no very good reason to oppose it.

So, again, why the threatened veto? The governor's spokesperson claims that the new marriage law would undo an initiative passed by California voters in 2000 declaring only heterosexual marriages "valid or recognized" in the state. Now, in principle, the fact that "the people" voted on an issue five years ago does not preclude them from reconsidering it, this time through their elected representatives. But under the state constitution the legislature cannot "amend or repeal" a popular initiative.

Whether the gay-marriage law would really do that is an interesting legal question. There are decent arguments both ways.

On the one hand, the 2000 initiative was passed to prevent the recognition of out-of-state gay marriages and is located in a section of the state code that deals with out-of-state marriages, not in-state marriages. The new gay-marriage law would not "amend or repeal" the prohibition on recognizing out-of-state gay marriages.

On the other hand, the 2000 initiative broadly declared that only male-female marriages are "valid." It was passed with the commonsensical background assumption that gay marriages would also not be validly performed within California.

Yet the parts of the state family code that actually define marriage were adopted in the 1970s by the legislature, not by popular initiative. So the legislature is presumptively free to change them.

My point is not to resolve this state constitutional issue, which the California courts can decide later. My point is that the issue is a debatable one and that where the issue is fairly debatable it is the responsibility of a leader to lead in the direction his heart and mind tell him is right.

If Gov. Schwarzenegger truly believes that gay couples deserve the same legal protection and support given to other couples, then it is his moral obligation to resolve reasonable doubts about his constitutional power in their favor. If he does not believe gay couples deserve marriage, then he should come out and say so, not hide behind courts and legalisms.

Around the country they are taunting Schwarzenegger with the "girlie man" label he used against his political opponents last year to accuse them of cowardice in the face of duty. He was right then about his enemies. It would be a shame if his epithet becomes his epitaph.

"'Let the jury consider their verdict,' the King said, for about the twentieth time that day. 'No, no!' said the Queen. 'Sentence first-verdict afterwards.'"

This famous little passage, from the trial of the Knave in Lewis Carroll's Alice's Adventures in Wonderland, could have been written to describe the attitude some national gay groups have taken to the nomination of John Roberts to the Supreme Court. Not yet having heard the most pertinent evidence-what the nominee himself has to say about his judicial philosophy-they have already handed down their sentence: they oppose him. This prejudgment is unfair and won't endear us to a man who may sit on the Court for more than a generation to come.

Let's be crystal clear: we know almost nothing about Roberts as a judge. He hasn't been on the bench long and he's decided few cases of any import, and in each of those was bound by Supreme Court precedent. Here's a short run-down on some important gay-related questions to which we do not know the answers:

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? The answers to these questions would give some indication whether he thinks the Supreme Court was right to strike down state sodomy laws in Lawrence v. Texas two years ago.
   
2. Does he believe Congress has the constitutional power to enact civil-rights laws that forbid private discrimination? The answer to this question would help us determine whether he thinks a federal law banning anti-gay job discrimination would be constitutional.
   
3. Does he believe Congress has the constitutional power to strip the federal courts of all jurisdiction to decide particular issues? The answer to this question would tell us whether he thinks Congress could forbid federal courts even to hear gay-marriage cases or other claims.
   
4. Does he think a state may forevermore strip a single group of all civil-rights protections? The answer to this question would suggest whether he thinks the Court correctly decided Romer v. Evans , which struck down a Colorado state constitutional amendment doing same to homosexuals.
   
5. When, if ever, does he think the Court should adhere to a decision that he believes was wrongly decided? The answer to this question would indicate whether he would actually vote to reverse Lawrence or Romer, even if he thought they were erroneous.

Senate hearings on the Roberts nomination will begin September 6. Then Senators will have the chance to ask these questions and more. We should listen closely to the nominee's answers. If he refuses to answer we're free to draw negative inferences from his silence.

Since so much is unknown at this point, however, why have four prominent gay groups-including PFLAG and HRC-rushed to oppose him? There's an official answer to this question and an unofficial one.

The official answer, recounted in a joint statement issued by the groups, is that Roberts wrote several memos as a young lawyer in the Justice Department 20 years ago that, interpreted in the most negative possible light, support the assumption that he might be an "anti-gay" justice.

Nothing in Roberts' public record of more than 25 years as a lawyer, judge, and commentator expresses an opinion on whether any gay-rights precedent should be overruled. Roberts has said nothing about how the Court should decide any gay civil-rights claim. He has said nothing about the constitutionality of sodomy laws, employment-protection laws, hate-crimes laws, etc. At most, some passages in some old memos seem skeptical about a constitutional doctrine, the right to privacy, that eventually provided a basis for Lawrence.

Even if Roberts' presumed skepticism about the right to privacy continues to this day-something we also do not know-being skeptical about a doctrine and being willing to discard it are two very different things. If past skepticism about the vague "right to privacy" disqualifies Roberts from service on the Court, then quite a few liberal law professors must also be disqualified.

Moreover, while we're reading tea leaves, a better and more recent indicator of Roberts' attitudes toward gay-rights claims is his volunteer work for gay advocates in 1996 in Romer. The leading gay-rights lawyer in the case says Roberts' brief help was crucial.

This pro-gay volunteer work by Roberts tells us two things. First, he's not personally anti-gay. Second, at least in an extreme case, Roberts will listen with an open mind to gay-equality claims. Whatever Roberts said 20 years ago, the trajectory of his career appears good for us.

What credit does this prominent conservative get for helping gays? Gay groups completely discount it and then summarily oppose him. (Gay groups, that is, except the national gay group that specializes in legal issues: Lambda Legal has notably withheld judgment until Roberts' hearing.) Imagine the reaction if Roberts had worked for the anti-gay side in the case!

The unofficial reason for gay groups' opposition has nothing to do with Roberts' record on gay rights and everything to do with the politics of abortion and progressive "coalition building." The left has decided to oppose anyone President Bush names to the Court, mostly to protect abortion rights. Gay groups are dutifully tagging along. It is as unseemly and unjust as the mad Queen's insistence on executing the prisoner before hearing the evidence. Only it's not funny.

While gay-rights groups have not yet announced their opposition to the nomination of John Roberts to the Supreme Court, that declaration is only a formality. They will politely wait until the Senate has conducted hearings and then come out swinging against him. Whether or not they are right to oppose him, one basis for their likely opposition should be dispelled. Abortion rights are not gay rights. And when it comes to constitutional law, Lawrence is not Roe.

Typical of gay activists' reaction to the Roberts nomination was that of Joe Solmonese, executive director of the Human Rights Campaign. Writing for the online edition of the Advocate, Solmonese warned that Roberts "has an extremely disturbing record in opposition to Roe v. Wade," the historic 1973 Supreme Court decision announcing a constitutional right to abortion. Indeed, abortion has become the litmus test for gay groups in deciding whether to oppose him.

Yet abortion is not a gay issue in practice or in principle. In practice, gay couples are the least likely in the land to produce unwanted pregnancies. Procreation for gay couples typically involves months of planning and thousands of dollars in investment, requiring the use of sophisticated reproductive technology or the cooperation of a surrogate parent. "Oops babies" are simply not a phenomenon common to gay life. Gays thus have less practical need for the option of abortion than do heterosexuals.

Yes, a gay woman could become pregnant through rape or consensual heterosexual sex. She might then want an abortion. But this no more makes abortion a "gay" issue than the fact that gay people die in plane crashes makes aviation-safety regulation a gay issue. Not everything that could conceivably happen to a gay person is thereby a gay issue.

Why then do gay groups make abortion a test of a politician's or a judicial nominee's commitment to gay rights? One answer to this question is that there's a demonstrated correlation in polling between opposition to abortion and opposition to gay equality. When a person is silent on gay issues, the next best indicator of his likely views is his stand on abortion. There are people who oppose abortion and support gay rights, of course, but these are the exceptions.

But gay-rights groups go further than this, insisting that there's a connection in principle between abortion rights and gay rights. That supposed principle is the right to privacy. "The privacy rights decided in Roe were at the core of the landmark Lawrence v. Texas sodomy case," Solmonese argues, referring to the 2003 decision in which the Supreme Court declared sodomy laws unconstitutional.

This is wrong. True, the constitutional right to privacy underlies both Roe and Lawrence. But the mere fact that both opinions spring from the same root does not mean the loss of one will erode the other.

For starters, it's remarkable how little the decision in Lawrence relies on Roe. The Lawrence opinion called on a phalanx of earlier privacy precedents and other authorities but mentioned Roe only sparingly, and never for a crucial point. The reason is obvious. Even for many liberal scholars, the reasoning of Roe is an embarrassment.

As a matter of both the individual and societal interests at stake, Roe presents a much weaker case for privacy protection than does Lawrence. First, the individual's privacy interest in abortion is weaker. Both abortion and sex involve things that are deeply personal to people and so implicate what some theorists call "decisional privacy." But there the similarity ends. Abortions are performed outside the home, often involve payment to state-licensed medical professionals, and always destroy an unwilling third party (the unborn child). Sex, as constitutionally protected, involves none of these things. It's typically done in the home, involves no commercial exchange, and imposes on no unwilling third party. Sex is a classically "private" activity in a way that abortion is not.

Second, the state's interest in regulation is much stronger in the case of abortion than in the case of sodomy. Every abortion kills an unborn child who has no choice in the matter and who is, at the very least, a potential person. The stakes are high. By contrast, the state of Texas in Lawrence could not come up with a single reason for prohibiting homosexual sodomy except "morality." Abortion is always killing; sex is often loving.

Just about everybody gets this distinction, including the opponents of gay equality. Much as social conservatives may disagree with Lawrence, they will not be organizing mass protests and annual marches on its anniversary thirty years hence, as they do now against Roe. While the sodomites may be harming themselves, they reason, at least they're not killing others.

To resolve both the policy and constitutional matter of abortion, we must surely weigh the autonomy interests of the individual woman. But we must also analyze the moral and legal status of the unborn child. Is it human life entitled to all the rights of a person? Or is it just neutral growth matter, inhabiting a woman's body, which she may dispose of at will? Or is it something in between?

These questions involve complicated matters of biology, medicine, religion, and moral reasoning. I have not answered them to my own satisfaction. But I am quite sure the answers do not depend on anything intrinsic to the case for gay rights.

I've long suspected that bisexuality, in many men, is the stage between shame and acceptance. That is, men who call themselves "bisexual" are often gay men who aren't quite ashamed anymore of their homosexual inclination but who, for any number of reasons, also aren't fully accepting of it. By calling themselves bisexual, they cling to some thin reed of their heterosexual identity.

A new study, following other studies reaching similar conclusions, lends support to these suspicions by concluding there are few, if any, bisexual males, defined here as those who are about equally aroused by both sexes. The study is being criticized by gay-left groups that have an ideological and political investment in the "B" in "GLBT." While the study is not definitive - what study could be? - and more work needs to be done to shore up its conclusions, the criticisms of it have not been very persuasive.

"Males do not represent two discrete populations, heterosexual and homosexual," wrote Alfred Kinsey. "The world is not to be divided into sheep and goats." Kinsey considered sexual orientation a spectrum along which many people were somewhere between the extremes of total homosexuality and total heterosexuality.

Ever since, "queer" theorists have argued that sexual orientation is itself a social construct. The categories "gay" and "straight" are creations of language and culture. Sexuality is plastic; it can change and be molded. In this view, everyone is in some sense bisexual.

Now a team of psychologists in Chicago and Toronto is publishing a study that questions this fashionable academic view. The researchers studied 101 men, about equally divided among men who called themselves gay, straight, and bisexual. They then showed the men pornographic images involving only women or only men, and measured their genital arousal.

Unsurprisingly, the straight men were aroused by the images of women. Also unsurprisingly, the gay men were aroused by the images of men.

And what aroused the men who called themselves bisexual? Three-fourths of them were aroused only by the images of men; one-fourth of them were aroused only by the images of women; and none of them were aroused by the images of both men and women. That is, their arousal patterns were indistinguishable from either the gay or straight men. In the memorable headline of the New York Times, the "bisexual" men in the study were either "Straight, Gay, or Lying."

The National Gay & Lesbian Task Force was predictably "stunned." The Gay and Lesbian Alliance Against Defamation, never missing a chance to promote a dull conformity of language, called the Times headline itself "derogatory."

The criticisms of the study have been underwhelming. One criticism has been that the sample size - 101 men, of whom 33 identified as bisexual - was too small. One could make that criticism of just about any sample size, and more is almost always better in these matters. But gay advocates have relied on studies with even smaller sample sizes to argue that homosexuals make good parents. There's also not much reason to believe a larger sample size would have yielded significantly different results, especially given that the findings are consistent with past studies of bisexual arousal and sexual behavior.

A second criticism has been that the sample - drawn from personal ads in gay and alternative newspapers - was not representative of all bisexual men. Some bisexual men, for example, may not self-identify as bisexual and thus wouldn't be in the study. Yet there's no reason to believe that these men would have exhibited different arousal patterns. Indeed, one would expect a greater degree of bisexual arousal in bisexual men who actually identify themselves as bisexual.

A third criticism has been to attack one of its leaders, Michael Bailey, some of whose past work on transgenders has been ethically questionable. Whatever the merits of Bailey's past work, this wasn't Bailey's study; he was part of a team of researchers who designed and conducted it. Plus, the study is either flawed or not based on its own methodology, not based on past criticisms of one of its authors.

Other criticisms have focused on supposed methodological "flaws" that don't affect the study's central conclusion. For example, some critics have noted that about 30% of the men had no physiological reaction to any of the porn they were shown. But so what? That may prove the porn was bad, or that some men just don't respond to sexually explicit images, but there's no reason to believe their lack of response biased the study away from finding bisexuals.

A final criticism has involved playing with the definition of "bisexual" in order to come up with more such people. If "bisexual" means anybody who has any degree of arousal, however small, to both sexes, then surely there are a large number of bisexuals.

Others have insisted that sexual orientation is more complicated than mere sexual attraction, and includes emotional attraction as well. Fair enough, but surely bisexual must involve some sexual element. If "bisexual" means anybody who calls himself "bisexual," regardless of whether he's actually sexually attracted to both sexes, then words lose all meaning.

If, however, "bisexual" means a person who has roughly equal erotic attraction to both sexes, then there are very few male bisexuals. Most people mean the latter when they use the word "bisexual," and it is this definition under which the study found there are no male bisexuals.

Clearly there are straight men who occasionally have gay sex when circumstances limit their preferred sexual outlet, as in prison. Clearly there are gay men, some of whom are married to women, who have straight sex because they're ashamed of their homosexual orientation or afraid of the consequences of being found out. These are not bisexuals.

Clearly, for queer theorists and their allied political groups, there is an ideological motivation behind the idea of bisexuality. They will defend it, damn the truth. And for some men, having sex with men who claim to be attracted to women is a fetish.

Clearly there are men who call themselves bisexual, whether for political reasons or fetishistic reasons or because they simply aren't yet able to accept that they're gay.

Our goal should be to free this last group from the identity prison of bisexuality, not to build higher walls around them in the service of political correctness. We may not like that the world is divided into sheep and goats, but that's preferable to pretending we live in a world of mythical unicorns.

She was an important justice, but not a great one. Sandra Day O'Connor was important because, as we have been told ad nauseam, hers was the Court's "swing" vote, negotiating between the liberal and conservative blocs. She was not great because no enduring constitutional principles she announced will survive her tenure. On gay legal issues, however, she was quite good if mostly passive.

Justice O'Connor mattered in many cases that mattered because, for her, every case was a new universe to be judged on the basis of particular facts whose importance could only be known by consulting Justice O'Connor. Her decision-making was almost entirely free of great principles and guiding legal theories, which may seem admirably undogmatic but was actually maddening. She announced that the government could not place an "undue burden" on abortion, but nobody knew what this meant until O'Connor told us in a given case. She proclaimed the government could not "endorse" religion but, again, what this meant depended just on what O'Connor said.

She decided cases with the eye of a legislator, which is what she once was. So consider, for example, that O'Connor once decided that airports could ban people who solicit donations for political and charitable causes - on the theory that this activity might disrupt pedestrian traffic when travelers stop to hear pitches for donations. But airports in her view could not ban people who distribute (or even sell!) literature for political and charitable causes - on the theory that this activity would not disrupt the flow of pedestrian traffic in the airport terminal because interested travelers would be more likely to take a pamphlet and move on. Her view became constitutional law. It was this kind of policy-oriented hair-splitting that made her "important," but hardly great.

For gay people, she was pretty good. She confronted gay-rights claims in five cases during her 24-year tenure, and got four of them right. Her first encounter with a gay-rights claim was not promising. In Bowers v. Hardwick, decided in 1986, she joined a majority of the Court that upheld sodomy laws. Notably, she did not join an especially nasty anti-gay concurring opinion by Chief Justice Warren Burger, who suggested that homosexual sodomy was worse than rape.

In 1995, in Hurley v. GLIB, she joined a unanimous opinion upholding the right of the St. Patrick's Day parade in Boston to exclude a gay contingent. Considered a loss by some gay-right advocates at the time, the decision was actually a victory in that it upheld the right of private speakers to control their own message. The right that allows the Hibernians to exclude gays from their parade is the same right that allows gays to exclude Fred Phelps from the annual gay pride parade.

In 1996, in Romer v. Evans, O'Connor joined the majority in striking down a Colorado state constitutional amendment banning all civil rights protections for gay people. It was the first out-and-out victory for gay-rights litigants in the Court's history. It put a stop to a movement that threatened the political progress made by gay advocates in cities across the country. It also declared that "animus" against gay people is not a legitimate basis for legislation under the U.S. Constitution.

In 2000, in Boy Scouts v. Dale, O'Connor once again joined the majority in declaring that the Boy Scouts of America had the right to exclude an openly gay scoutmaster. Also considered by many to be a defeat for gay rights, the decision was really a win. The opinion affirmed a robust freedom of association, the same freedom that had shielded fledgling gay groups from government persecution in the 1960s through the 1980s.

In 2003, in Lawrence v. Texas, Justice O'Connor joined the majority in striking down a law banning homosexual anal and oral sex. Notably, she did not join the majority in striking down all sodomy laws as a violation of a constitutional right to privacy. Instead, O'Connor focused on the fact that the Texas law targeted only gay couples. While O'Connor's opinion would theoretically have allowed a state to ban both heterosexual and homosexual sodomy, she carefully noted that such an "evenhanded" law might be unconstitutional if unequally enforced (as such laws always have been).

Aside from these particular cases, Justice O'Connor's general preference for state over federal power must also be seen as a boon to gay-rights causes. In a series of cases, O'Connor voted to limit federal power and to protect the historic role of the states in determining important matters of public policy. While she was hardly consistent about it, she was firmly in the camp favoring such federalism.

Federalism is now the principle means by which gay-rights causes are advancing in this country. According to the Center for Policy Alternatives (CPA), headed by former Human Rights Campaign Executive Director Tim McFeeley, the states are now leading the way in granting protections to gay individuals and families. A new report by the CPA documents more than two dozen pro-gay state laws adopted since 2003 alone. These include not only civil rights laws protecting gays from discrimination, but also laws recognizing and supporting gay families. These gains have been made even as prospects at the federal level have considerably darkened.

Justice O'Connor did not personally push for these advances in the state legislatures, of course. But her general approach has protected a balance of state and federal power that makes them possible.

We've made so much progress over the past four decades that it's easy to forget how far we still have to go. You can see that in the marriage fight, where gay relationships are routinely equated with the destruction of civilization. But you can see it more clearly, I think, in day-to-day life.

I live in Minneapolis, one of the most politically liberal places in the country. Minnesota has a statewide law protecting gays from discrimination in employment, housing, and public accommodations. Minneapolis has three openly gay city council members, the largest proportion of any major city in the country. A Republican couldn't get elected dog catcher in this town. My employer, the University of Minnesota, offers same-sex domestic partners' benefits to employees.

Not long ago I briefly dated a guy living in San Francisco. He came to visit me in Minneapolis for a long weekend, during which we did the kinds of things that dating couples do in order to get to know one another better. We went out to eat. We went to the movies. We walked together down the street and in the mall.

He lives in the Castro and when he dates people he's used to holding hands, kissing, hugging, showing affection in dozens of little ways. And he gives no thought to doing these things in public places. Yet when we did these things in public in liberal Minneapolis, the reception we got ranged from cold disapproval to open hostility.

In one of my favorite neighborhood restaurants, while we were waiting in line to order, he hugged me from behind and lingered there a few moments. The wait-staff shot us nervous looks, like they feared we might start sodomizing each other right next to the lamb kebobs. Some guy walked by us singing to his portable CD player, and spelled aloud the word "G-A-Y" as if it were part of the song.

Driving back from a movie, I put my arm around my date's shoulders. Several other drivers slowed down beside us to take a closer look at my car, a 1959 Chrysler Windsor. When they noticed my arm around my date their appreciative attitudes changed. The nice ones pointed us out to their friends and laughed, then sped ahead. A couple of carloads of young men were more menacing, throwing paper cups and even empty bottles of beer at my car.

At the zoo, walking down the street, and in the mall, we held hands at several points (always at my date's initiative). Each time we got nasty looks. We would pass someone, then I'd turn my head and see that they were looking back at us and whispering to each other. A few parents turned their children away from us, as if we were contagious, harmful on sight.

All in all, in the space of a few days, things like this happened more times than I can count. At the end of the weekend, I apologized to him. I was embarrassed. I felt terrible that I brought him out of a place where he could be himself to a place where being himself meant living with a constant sense of low-level danger. There was no way I could ever ask him to leave San Francisco to come to this place. There being no future, we stopped dating.

Sad as I was about that, I was mostly stunned. Though I knew things weren't perfect here, I had not experienced anything like it in the five years I'd lived in Minneapolis. Had all this really happened in my cocoon of tolerance and acceptance, my liberal bastion? Had it been a fluke, an unlucky weekend of chance encounters with the only ignoramuses around?

Then it dawned on me why it had happened that weekend in Minneapolis, but not before. In previous dating relationships, all with men from the area, my dates and I had censored our public conduct in ways to avoid these problems. We'd engaged in little or no hugging, or hand-holding, or other obvious signs of affection in public. We had held back without even realizing it. It was second nature to us.

My San Francisco date, however, hadn't been properly trained in this way. He had initiated each of these shameless, heedless displays and I had somewhat nervously gone along with them. He felt free in a way I never really have.

What does this atmosphere do to gay people who live outside a few square blocks of freedom in a few big cities? What effect does it have on our chances of forming lasting relationships? When straight couples need a touch of reassurance, they hold hands without a thought. A husband will casually lean over and plant a kiss on his wife. These gestures, mild and routine as they are, help sustain a relationship. Yet for gay couples they are social faux pas, perhaps an invitation to abuse.

The truth is, there's a deep aversion to gay people that will not be eliminated by enlightened laws. It's a gut-level disgust that defies rationalization, that resists education, that fears without thinking. The laws that rule our lives are not written on statute books; they are written on hearts. And the heart of this country, in the heart of this country, is still darker than many of us had hoped it would be by now.

From its inception, the gay civil rights movement has had two basic impulses, both of which I share. One has been equality, holding that gays shouldn't be discriminated against. The other has been liberty, holding that individuals should be largely free of government interference. Together, these impulses have gotten us where we are today: no more bar raids or sodomy laws, the free publication of gay magazines and newspapers, the formation of gay organizations, a smattering of laws protecting gays from employment and other bias. These are large accomplishments.

Yet we have hit a wall of public disapproval on gay marriage and, more broadly, on the morality of homosexuality itself. After moving the polls in our direction for a decade or so, the number of Americans who support gay marriage has now stabilized and even turned slightly against us. The same trend is evident when people are asked about the morality of homosexuality. Republicans, by 68 percent to 27 percent, believe homosexuality is morally wrong. Even Democrats muster only a bare majority for the view that homosexuality is morally acceptable (50 percent approving to 46 percent disapproving).

How do we breach this wall? Not, I think, by more talk of equality and liberty. We have won over just about everyone who will be moved by such arguments. That leaves more than half the public still unpersuaded.

Marriage is the perfect example of why we've hit this wall. Marriage is neither egalitarian nor libertarian. It is practically the opposite of these things and that is why appeals to anti-discrimination principles and individual rights fall flat.

Consider first how inegalitarian marriage is. Marriage, by law and custom, is judgmental. It says that some ways of living are better than others. Some relationships are better than others. Sex within marriage is better for people than sex outside of it. Monogamy is better than promiscuity. People should make babies when they are married, but not when they are not. Children are better off raised by two people than by a single person or by three people or by a commune.

Marriage gives to some relationships, but not to any others, an array of social support, benefits, and legal protections. In other words, marriage creates status hierarchies that are antithetical to the liberal egalitarianism that has dominated the gay civil rights movement for almost 40 years.

One can make an egalitarian argument for gay marriage. This is what many left-progressives have rather uneasily tried to do. One can argue, for example, that gay marriage is justified on the principle that gay couples are relevantly like straight couples and so should not be treated differently. That's right as far as it goes, but it still means we're saying that gay-couple relationships are better than other relationships and many progressives are uncomfortable saying things like that. Gay marriage gives nothing to single people and to relationships - gay and straight - that don't fit the traditional pattern of two-person monogamy.

Honest progressives have long understood this and for that very reason have resisted the gay-marriage movement. They do not like status hierarchies and correctly see gay marriage as reinforcing them. They want everyone to be given legal protections and benefits, regardless of the form, nature, and numerosity of the relationships they enter.

Now consider how unlibertarian marriage is. Nobody is literally forced to get married. But civil marriage, as an institution shaped by the state, puts the government in the position of backing some relationships at everyone's expense. Each of the various legal benefits associated with marriage carries a price that is borne through taxes by everyone, including those who don't want to marry. Marriage is a tax on being single or polygamous.

One could make a libertarian case for marriage by arguing that marrying is a choice that should be freely open to autonomous individuals. But this view misses the point of marriage, which is not a celebration of individual autonomy. Marriage is about duty to others, not freedom for oneself. Further, in marriage, the state is hardly neutral about the choices made by individuals. It encourages people to make the marriage choice and then, once they've made it, regulates the choice by conditioning their conduct in it and their exit from it (through divorce).

That's why some libertarians eschew gay marriage in favor of abolishing marriage altogether and replacing it with a system of allowing people to enter enforceable private contracts for mutual care. Under this arrangement, individuals would choose the terms of their own relationships, not have those terms imposed by the state through marriage. One would "contract" a relationship as one contracts a business deal. This proposal is completely utopian (or in my view, dystopian), since abolishing state-sanctioned marriage after centuries of state involvement is even less likely than the election of a Libertarian Party president. But for a libertarian it has the academic virtue of consistency.

Marriage is founded on neither equality nor liberty. It is in some ways the negation of these. It is a way of binding people together in a union that is thought to benefit the couple, any children they raise, and the community around them, to an extent that other relationships simply do not. That's why it is a social institution. It is shaped by and helps to nurture the society in which it arises.

If we are to get gay marriage, we must be able to appeal to the bulk of the country that properly understands marriage in this way. We must argue for it not primarily on the basis of anti-discrimination principles, or on the basis of individual liberty, but on the basis of community. It is like nothing else we've fought for.

There are right ways and wrong ways, helpful ways and counterproductive ways, to win. In Connecticut, advocates for gay marriage won the right and helpful way by persuading state legislators to enact civil unions for same-sex couples. While Connecticut is in some respects exceptional, this has been a lesson in democratic politics that can and should be exported to other states. Several rules from that lesson follow.

Rule #1:
Advance through legislatures, not courts.

Connecticut becomes the first state in the country to recognize gay relationships in such an exhaustive fashion without being ordered to do so by a court. While religious opponents of gay marriage intend to challenge pro-civil-union state legislators in the 2006 election, I doubt that effort will succeed. Connecticut is a gay-friendly state dominated by liberal Democrats and moderate Republicans. Six of the 12 Republican state senators voted for the civil-union law and the Republican governor signed it. The response among the electorate has been muted.

Contrast that to the reaction when courts have forced gay marriage on states. In the 1990s, courts in Hawaii and Alaska ordered the recognition of gay marriage only to have the people in those states ban it by state constitutional amendment, a precedent that would soon be followed. Vermont enacted civil unions in 2000 under compulsion of a court order, which produced a toxic political upheaval. Civil unions survived, but no further progress toward gay marriage has been made there.

Massachusetts recognized gay marriages in 2004 only because the state's highest court ordered it. That led directly to consideration of a state constitutional amendment (still pending) and indirectly to the passage of state constitutional amendments in more than a dozen states last fall.

Until recently, California was advancing steadily and democratically toward gay marriage. From 1999 to 2003 the state legislature added annually to the benefits and responsibilities conferred on gay couples. By the beginning of this year, California's domestic partnerships offered gay couples legally much of what marriage offers. Those democratic gains for gay couples induced only a statewide yawn.

Recently, however, a state judge in San Francisco threatened that progress by declaring the state's marriage law unconstitutional. Unless the decision is reversed by the state's highest court, as I expect it will be, California too will face a possible referendum banning gay marriage. And that referendum might be broad enough to eliminate not just gay marriage, but much or all of the painstaking legislative progress already made.

Connecticut has so far followed a wiser path. However, even in Connecticut this progress is threatened by a pending lawsuit challenging the state's marriage laws. It might be fair to say that judicial victories have primed the legislative pump in Connecticut and elsewhere. Even so, more such judicial pump-priming just now will only fuel a backlash not just in Connecticut but further kindle the fire consuming gay-marriage advocates across the country.

There's something about representative democracy that makes even losers accept the legitimacy of the result. There's something about courts that makes losers want to dump tea in Boston Harbor.

Rule #2:
Incremental steps to gay marriage are necessary, but the steps can be large.

No state has yet authorized gay marriage by legislative action. That suggests that almost everywhere progress will have to be made piecemeal. In California, the legislative pace has been glacial in some years, lightning fast in others.

While incremental legislative steps toward gay marriage are often necessary, they can sometimes and in some places be very large. By recognizing civil unions, Connecticut has taken a huge leap to gay marriage. It will now be easier, in just a few years, to argue that granting Connecticut's gay civil unions the legal and social dignity of "marriage" poses no threat to society.

In this respect, however, the Connecticut model has limited application. Polls showed that 56 percent of the state's residents already favored civil unions. That level of support may be present or quickly obtainable in most of the northeastern states. Beyond those core states, any legislative progress will have to be much slower. For example, Illinois should probably be on the slow track.

Rule #3:
Compromise.

Reform movements need both idealists and pragmatists. Without idealists, the pragmatists have no idea where to go. Without pragmatists, idealists have no idea how to get there. The early years of the gay marriage struggle have necessarily been dominated by idealists, people who thought the revolutionary thought that gay couples should be allowed to marry. Now that this idea has been implanted in the political culture, and has awakened a fierce resistance, it's time for a season of pragmatism.

Pragmatism means compromise. If we stamp our feet and demand marriage, and nothing less, we will get nothing. That was initially the stand taken by Love Makes A Family, the Connecticut group supporting marriage equality. The group opposed civil unions as "separate but equal" and a "dead end" that would never lead to gay marriage. Yet the state legislature was unready for gay marriage, and even getting civil unions required a reaffirmation of the principle that marriage is for "one man and one woman."

After universal criticism in gay circles, Love Makes a Family pragmatically ended its opposition to civil unions. The legislation then passed. Now even the group's president admits that civil unions are not a dead end, but part of a "conversation about marriage equality [that] will continue."

In southern Texas when I was a kid in the 1970s, Catholics were the liberals. That went for both their lifestyle and their politics. They were the ones who could dance and drink, while we Southern Baptists were taught that those activities were sins or would lead to sins (I forget which). Sure, Catholics weren't supposed to use contraceptives, even within marriage, but that edict was disregarded.

Where I grew up, Catholics were mostly Mexican-American; Mexican-Americans voted for Democrats; and Democrats were liberals. Their church opposed the death penalty and just about every use of military force. They emphasized helping the poor. For us Southern Baptists, poverty only showed that capitalism was working properly by punishing the indolent.

If I had thought much about gay issues back then, Catholics would have seemed liberal on this too. In its treatment of the topic "Homosexuality," the New Catholic Encyclopedia, published in 1967, was downright enlightened for its time. Catholicism recognized homosexuality as an orientation, a "proclivity" that "develops gradually over many years as a result of complex influences not under the control of the potential homosexual."

Southern Baptists, to this day, see in homosexuality not an unchosen "orientation" but only a wicked and vile choice by lustful sinners.

The New Catholic Encyclopedia, reflecting church teaching, debunked several then-dominant myths about homosexuals. "There is no evidence that [the homosexual's] sexual drive, in itself, is more intense than that of heterosexuals," it declared. The homosexual "is rarely an alcoholic or a threat to immature children."

It criticized "harsh and vengeful religious writings" against gays and urged a pastoral counseling approach characterized by "compassionate leniency."

I don't want to paint too bright a picture. Catholicism continued to regard homosexual acts as "a grave transgression of the divine will" and "a sterile love of self, disguised in apparent love for another." The only solution for the homosexual was life-long chastity.

Still, all of this was much more tolerant than anything my religion taught. Southern Baptists may have invented the slogan, "Love the sinner, hate the sin," but most often they seem to despise both. (Actually, we had a youth minister who molested boys in his charge; his slogan must have been, "Hate the sinner, love the sin.") By comparison to my church, Catholicism seemed rational, literate, and civilized. It was receptive to new learning about homosexuality. On the eve of John Paul II's papacy, in 1978, there was reason for hope.

At the end of his reign, that hope is all but gone. The reactionary wing of the Catholic Church has gotten stronger. A new Catholic traditionalist movement in the United States, for example, focuses much of its energy on blaming gays for the Catholic priest scandal and on fighting equality for gay people. Politically, Catholic traditionalists are aligning themselves with my old Southern Baptists and with other conservative Christian sects to form a Religio-Republican complex.

By word and deed, the Pope aided this regression. Under John Paul II's guidance, the Catholic Church backed away somewhat from its previous view that homosexual orientation was morally blameless. The Vatican's Congregation on the Doctrine of the Faith, under Cardinal Joseph Ratzinger [now Pope Benedict XVI], claimed that even the homosexual "inclination" came close to "an intrinsic moral evil."

In 1986, with John Paul II's approval, a tenured professor at Catholic University was barred from teaching theology because of his belief that homosexual acts within a loving relationship could "in a certain sense be objectively morally acceptable." That same year the archbishop of Seattle was stripped of his authority on gay issues after he allowed Dignity, a gay Catholic group, to hold Mass in his cathedral. The Vatican tried to have a World Pride festival barred from Rome in 2000, the year of the church's Grand Jubilee.

While the Pope was rightly praised for reaching out to other religious faiths, his ecumenism had its limits. Last year he warned that the selection of the openly gay Gene Robinson as a bishop of the American Episcopal Church would create "new and serious difficulties ... on the path to unity."

On AIDS, the Pope sometimes had kind words, saying "God loves you all, without distinction," to AIDS patients during a trip to San Francisco in 1987. But he steadfastly opposed practical efforts to stop the spread of the disease, including safe-sex education and all use of condoms.

On the subject of gay marriage, John Paul II was especially harsh. In 1994, he called it "a serious threat to the future of the family and society itself." Catholic politicians who disagreed were "gravely immoral." In a book released in February, he denounced gay marriage as "perhaps part of a new ideology of evil, perhaps more insidious and hidden, which attempts to pit human rights against the family and against man."

The Pope is the most powerful single religious leader in the world. Because he influenced the beliefs and practices of hundreds of millions of people, he did more harm to the rights and equality of gay people than any other person.

So all of the hagiographic tributes to John Paul II - claiming that he helped free Eastern Europe from Soviet domination, that he had "rock star" charisma - fell flat to me. I was deeply alienated from the mourning throngs I saw on television. The only thing that could make me miss him is the fear that his successor might be even worse.

I've been trying hard to justify writing about the Terri Schiavo saga for a gay publication. Gay groups, very sensibly, did not take a stand on the specific question whether the woman's feeding tube should have been removed. It wasn't a "gay" issue, although individual gay persons face similar grave circumstances. The Schiavo case is, however, part of the larger agenda of the religious-conservative groups that moved political and legal mountains to have their way. That agenda is gathering momentum under the banner of promoting a "culture of life," an idea whose central precepts, as articulated by religious conservatives, strongly oppose gay equality.

There are two easy questions raised by the Schiavo mess. First, should Congress have intervened by passing a law giving federal courts power to review this case alone? Absolutely not. Laws are not tickets "good for this ride only." A law is respectable as law when it deals with a wide range of cases. This requirement of generality helps ensure that law results from a deliberative process, one not dominated by momentary zeal and favoritism towards particular persons. Congress acted on passions, not reason, and on partiality, not sound public policy.

It is Congress's constitutional responsibility to make sure that the states do not take life without due process of law. Nobody would suppose Congress must remain silent if states were starving healthy people picked randomly from the street. But there is no plausible claim that the decision to remove Schiavo's feeding tube, made some 10 years after she entered a persistent vegetative state, was insufficiently litigated. There is no evidence that the state courts generally are not giving due consideration to such cases. So there was no justification for Congress to act, much less to act precipitously.

The second easy question is this: Should a competent person be able to refuse medical intervention, including a feeding tube, designed to prolong her life when she enters a hopeless state of pain or incapacity? Yes, absolutely. Prolonging a person's life under such circumstances against her will is a direct affront to her dignity and personal autonomy. It is a paternalistic declaration by the state, enforced by physical invasion of her body, that it knows what's best for her.

The hard question raised by the case was whether there was sufficient evidence of Schiavo's wish to remove the feeding tube. There was no living will, a legal document in which a healthy person clearly makes the choice in writing. The only evidence of her desire to decline medical intervention was the testimony of her husband, testimony that a state trial court found "clear and convincing" after hearing from numerous witnesses on both sides of the question. I'm not in a position to say the trial court was wrong. Neither were the numerous state and federal judges who reviewed the matter on appeal. Neither were Tom DeLay and "Dr." Bill Frist.

I can imagine a state law that says, "No feeding tube shall be removed unless the patient has executed a living will," or, "In the absence of a living will, no feeding tube shall be removed unless at least two family members testify that is what the patient would have wanted." Either of those might be good rules, erring as they do on the side of preserving life. But neither rule is the law in Florida, or any other state, and changing a law after the fact to suit one case cannot properly be called "law" at all.

What does all this have to do with gay rights? Just this: Suppose Terri Schiavo had been gay. Many things about the case would have been different.

To start with, the parents' wishes - whatever they were - would likely have been respected by the Florida state courts, despite whatever her unmarried partner might have said. As a practical matter, Schiavo's husband enjoyed a strong presumption of believability and authority simply by virtue of their marital relationship. Absent special legal arrangements, that is something unavailable to gay partners in Florida.

Imagine that our hypothetical case made it to the stage where a judge ordered the removal of the feeding tube. What reaction would there be from the "culture of life"? Would religious conservatives appear en masse outside a homosexual's hospice bed to pray for her life? Would they get themselves arrested trying to take her food and water? Would they hold press conferences pleading with the governor and state legislature to intervene? Would the Congress convene in extraordinary session to save a homosexual vegetable?

While a few principled people might show up, I doubt a mass movement would emerge. As for intervention by the state government, Florida is the only state in the union that bans adoptions by homosexuals. Forget Congress.

One could conceive a "culture of life" that affirmed the equality of gays. Such a culture might even show a special concern for the dignity and equality of gays, as it would for any marginal persons, like the disabled or the dying.

But that is not the culture favored by religious conservatives. Their culture of life opposes equal treatment of gays in just about every important area of life - in marriage, the military, and employment. Its devotees would bring back sodomy laws if they could. They seek for us only stigma and discrimination. They seek, damn the law, to overwhelm our autonomy just as they presumably did Terri Schiavo's. They seek to impose their vision of what's best for us, even if that means force-feeding us a life we can't bear to live.