IGF CultureWatch

I don’t know or care a lot about whether this actor from “Empire” is gay or not.  His non-reaction to a general sense that he is gay seems like a replay of what we went through with Sean Hayes back in the day.

But I have to say I think I can understand the reluctance of some young actors to be publicly and irrevocably identified as homosexual.

It’s not because of the closet — at least not these days.  Whether or not we’ve reached critical mass on gay acceptance, it is clear to most people in Hollywood that it is not only possible to be openly homosexual and have a successful career, it can even get you some favorable press.  In any event, we are long past the days of Rock Hudson.

The bigger challenge for a gay celebrity these days in coming out is the fear of being commandeered by the gay political establishment as the Latest Model.

For the last half century or so, lesbians and gay men have had to live in an artificially politicized world for the simple reason that the laws that were so harmful to us needed to be challenged by someone, and it pretty much had to be us.  Very few heterosexuals worried about having sodomy laws used to blackmail them, and it took a generation of constant effort to get people to see that the lack of legal recognition for our relationships was, in fact, a problem for us.  Those efforts have paid off in record time.

But here’s a fact that a lot of politically active people don’t always understand.  Many people didn’t want to be political, or didn’t have the inclination in that direction.  All those years of yelling, “Out of the bars and into the streets!” were a recognition of that fact.  At lot of people did get out of the bars and into the streets, but it was only because they were persuaded how vitally important that was.

Once established, political activism can become just another bureaucracy fighting for its own continued existence.  That’s perfectly fine for those who live for controversy and grievance.

But what if that’s not your thing?  In a world where sexual orientation is far better understood (though there are notable exceptions), lawyers and postal workers and bakers and nurses have the luxury of leading lives as private as they choose.  For actors or others in the orbit of celebrityhood, though, a certain amount of publicity is their oxygen.  It’s also the oxygen of the activists, who tend to resent the closet because they have to respect it.  Outing has always been controversial because it violated that necessary respect in a context where being openly gay would have the most value.

But we have a more than adequate supply of good, great and even superlative role models who are openly homosexual now.  The almost unbelievable progress we have made in both improving the law and opening the culture has broken through the silence that equalled death and a multitude of other gruesome, painful and noxious consequences.

Which is why I’m willing to give celebrities who want to avoid being coopted by the gay political establishment a break. There are actual gay politicians now, the professionals in this sport.  And there are enough high-profile homosexual celebrities that we don’t need every actor out there to publicly declare and risk conscription.

Count me as someone who would like to see The Dish continue after Andrew Sullivan’s retirement.  I have been reading Andrew for as long as he’s been published, and have been a happy Dish Head since its first day.  I don’t pay directly for much on the Internet, but his site has been well worth my time and money.

Andrew is a hard and deep thinker, and there’s nothing I enjoy more than reading something of his that I am inclined to disagree with to see if he can change my mind.  Sometimes he has (the Clintons’ lust for power), sometimes not (NFL concussions), and sometimes I’m left suspended in mid-air (Trig Palin).

But there’s a less discussed aspect to The Dish that I would like to see survive him.  Over the years, it has developed into what would have been called, in an earlier time, a salon.  A great deal of Dishness happens when Andrew steps aside and just serves as the host for a vivacious discussion among well-informed and highly interesting voices.

My guess is that this is not something he is able to achieve on his own.  The staff at The Dish has developed a keen judgment about what things are worth my time.  And that includes not only thoughtful and sometimes dyspeptic argument, but also the invaluable Mental Health Breaks, the cream of dog and cat videos, and the Sunday Sermons that are better than anything I remember from any Catholic priest I ever had to listen to.

Even without Andrew, I think that sensibility can continue.  I know it is something I rely on, and possibly am addicted to.  The Dish filters out much of the Internet’s toxicity.  We are all going to need sites with that kind of judgment in the years to come.  I’m ready to continue supporting the people who are doing that job so well right now, if they are willing.

This strikes me as very foolish.  A gay and lesbian crowdsourcing group called All Out has pressured Google Translate to remove any words that “gay” could be translated as which are offensive.  If I’m understanding this correctly, lesbians and gay men who encounter speakers of another language and rely on Google Translate will only receive politically acceptable words and phrases.

There are times, I admit, when it would be nice to live in the bubble of wonderfulness these folks envision.  But if someone from Saudi Arabia, say, is calling me a faggot, I’d like to know that.  It’s possible he would offer up other cues that would make the point, but all the same language matters, and sometimes it matters most when it is offensive.

It’s easy to second-guess the arguments lawyers make in high profile cases, and while that’s pretty much what I will be doing, I want to make clear that the arguments made in favor of marriage equality at the U.S. Sixth Circuit Court of Appeals this week were very good.

But an important colloquy could have gone better, in my opinion, and since we haven’t heard the last of it (there are many, many more cases still pending), I wanted to add my own thoughts about how to think about the question.

It was about a case I’ve mentioned before. Mark Joseph Stern at Slate describes what happened, focusing on the swing justice at the Sixth Circuit,  Jeffrey Sutton:

In a 1972 case called Baker v. Nelson, the Supreme Court dismissed a challenge to Minnesota’s gay marriage ban “for want of a substantial federal question”—that is to say, the court didn’t see a constitutional flaw in the ban. The case was decided through a summary affirmance of a lower court ruling, meaning the justices didn’t hear arguments or write a real opinion. But a summary affirmance is generally considered to be binding precedent on lower courts

You might think that Justice Anthony Kennedy would confront Baker—the only Supreme Court precedent to deal directly with the merits of state gay marriage bans—when he overturned DOMA. But instead, he ignored it, perhaps in an effort to leave the whole question of state-level bans for another day. Every district court that has since struck down these bans worked around Baker by citing a somewhat ambiguous loophole: A summary affirmance might not be controlling precedent when it has since been undermined by “doctrinal developments.”

The question for Sutton, then, is simple: Does the trio of great gay rights cases (Romer, Lawrence, and Windsor) render Baker’s holding completely moot? Or does Baker remain binding precedent? Sutton seemed to lean toward keeping Baker on life support for now and letting the Supreme Court pull the plug, noting, “Even when you see one line of cases crumbling, lower courts aren’t allowed to infer, and anticipatorily overrule, this other line of cases. So as a matter of hierarchy, aren’t we stuck with Baker?”

But then Sutton seemed to walk back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” At the end of his colloquy on the topic, he seemed a little stumped, and more than a little frustrated.

Judge Sutton had a sound legal argument for following Baker, but he was missing the forest for the trees because, at exactly that moment, the U.S. Court of Appeals for the Sixth Circuit was hearing appeals in six cases from four states.

In 1973, it was possible for the highest court in the land to say that they could not see a federal question in a case where two men were denied the right to marry one another. In contrast, whatever else can be said in 2014, there is no doubt at all that there is a very prominent federal question about that subject. If there were not, then what on God’s earth was the Sixth Circuit doing? Not a single one of the challenges to state bans on same-sex marriage have been filed and left to gather dust. Serious lawyers with serious clients have answered every one of those complaints. While it is possible to debate the merits of their arguments, they are making serious arguments about something even they view as a serious question.

Stated another way, Baker is incompatible with the very fact that these cases are now before the courts. Of course there is a federal question today. Whatever else can be said about the presidential value of summary affirmances in general, the premise of the affirmance in Baker was based on premises about sexual orientation that have no continuing validity at all.

Judge Sutton could ultimately decide that Baker has not been overturned by the U.S. Supreme Court. As Dale Carpenter points out, that would actually be the least harmful loss for us, since it would require only about a paragraph of text in the Sixth Circuit opinion (about as much as the Supreme Court devoted to the Baker affirmance). The opinion would not need to go any further than saying “We are bound by Baker unless and until the Supreme Court overturns it.”

But that is to ignore what is right in front of the court’s nose. Something much more consequential than the Supreme Court has overtaken, if not overturned Baker. What was unimaginable to the courts then is common discourse now. Every court that has heard the argument over same-sex marriage knows for a fact that Baker v Nelson is a nullity.

Like Stephen, I found the lack of reaction to the CDC report on the number of self-reported homosexual Americans pretty interesting. For those of us old enough to remember being gay in the 70s (that’s the 1970s, for younger readers), it’s hard to imagine that these low numbers, well below the Kinsey-ish estimates of 10%, did not cause much of a stir.

But, indirectly, IGF occassional contributor John Corvino, helped me think about why this is important. His new article at Commonweal, “Thinking Straight,”  isn’t about the numbers game; it’s a great analysis of an essay by Michael Hannon called “Against Homosexuality,” which tries to turn Queer Theory against the notion of gay rights. John does a fine job of explaining how wrong Hannon is, but John’s main point is that while categories for sexual orientation do have their problems, they serve a very practical and important purpose. Absent a fairly clear understanding that there are other people who are attracted to members of their own sex, and that homosexual people have an ordered place in society, it’s very hard for young lesbians and gay boys to find a healthy place in their developing psyches for their sexual feelings.

The closet distorted the more ordinary process heterosexual kids go through, from awkward embarrassment to adult relationships. For generations, homosexual kids went from awkward embarrassment to public silence, possibly awkward heterosexual marriage, or at best awkward adult companionship.

In that context, those fighting for gay equality in the 60s and 70s had to establish something new in public discourse: the fact that there were people who deserved the rights we were claiming. Back then, it was hard to get people willing to testify at public hearings. Remember, those were the days when it was still a crime in most states to even be homosexual. We had heterosexual allies, but those of us who wanted to change the laws had the burden of demonstrating that, despite public appearances, there really was a homosexual population that was affected.

The 10% figure served as the proxy for all those closeted people. It wasn’t accurate, but it had some science behind it. And it provided a little comfort to help bring a few more people into the public eye as open homosexuals.

Now that the closet is eroding (it’s not gone by any means — look how hard it was for Ian Thorpe to come out), we seem to have reached critical mass in the number of people who are comfortable being open about being gay. Today, it’s hard for either the general public or, most importantly, young homosexuals, to avoid knowing something about the fact that homosexual people have a place in society, with or without a spouse.

And it turns out that it doesn’t make a difference how many of those people there are. Whether it’s 10% or 2% or 1.6%, the actual number is not what’s at issue. The equal protection clause doesn’t have a numerical threshold. If the law, itself, is being used by a majority (however large) to unfairly discriminate against a minority (however small), the constitution requires the courts to assure that there is a good reason (sometimes a very good reason) for the differential treatment.

So, for myself, I am going to be spending my time in other pursuits as people continue to exert time and resources trying to figure out how many lesbians and gay men there are. Now that we’re on the path to full equal protection of the law, everything else is just demographics.