IGF CultureWatch

Jack Balkin has an excellent column on the DOMA decisions from the federal court in Massachusetts. He makes the best case I've seen for an appeals court to overturn them.

But his argument is not so much a legal one as a tactical one. He says, in the first paragraph, "I believe that federal and state laws that discriminate against same-sex couples violate equal protection of the laws. But I have no faith that the Supreme Court will agree with me for many years."

This is the dilemma - and the frustration - that gay marriage proponents crash their skulls against every day. Of course the equal protection clause means what it says. Lesbians and gay men are citizens, too, and unlike virtually any other specified class of citizens in the modern world, they are called out in specific laws to be denied rights that the majority takes for granted for itself. The equal protection clause was designed to address exactly this kind of injustice by the majority against a very small minority. There are very, very few respectable legal professionals in this country who do not see that simple and blindingly obvious fact. Court after court after court finds our arguments to be persuasive and even compelling.

The Massachusetts decisions are newsworthy only in that they are from federal rather than state courts. That changes the staging of the problem, but that makes a big difference. Balkin's concern is not with the ultimate justice of gay equality, only its timing for the nation as a whole. It is too soon for marriage equality to be recognized by the federal courts. Some day it will. Some day it must. But the nation isn't ready for it yet.

He may be right about that. This is certainly the heart of Jonathan Rauch's position. Gay marriage, gay equality is inevitable. Also inevitable is the backlash a premature court ruling would create. Let gay marriage play out in the states first. It's too soon for too many. Let folks get used to it.

The constitution guards against inequality, but it does not guard against political firestorms. And the political firestorms over gay marriage have amended constitutions, themselves, to specify inequality for homosexuals, or to prevent such equality from ever even being declared. The tradition of discrimination - or, perhaps more fairly, the tradition of homosexual invisibility among heterosexuals - is too strong. Too many people are just not used to there being homosexuals who aren't ashamed enough of themselves to hide or remain decently silent.

But a lot of homosexuals - and extremely powerful heterosexual supporters like Martha Coakely and David Boies and Ted Olson - are willing to take the risk. Homosexuals aren't going back to the closets, and the injustice Americans could always blind themselves to before is now out in the open all across the nation. It's been a quarter of a century since domestic partnership first found its way into the law, and seventeen years since the Hawaii Supreme Court decision in Baer v. Lewin. Maybe the time is right.

Balkin and Rauch have a respectable political point, and they have 30 state constitutional amendments as pretty strong evidence on their side. But the rest of us have a point, too. Maybe each of those federal court battles, and each battle over a state court decision, and the battles over hate crimes laws and Ellen Degeneres and Brokeback Mountain and Prop. 8 and Don't Ask, Don't Tell and the Today Show's Wedding Contest and Tinky-Freaking-Winky are having their effect, are eroding that rock of silence that we were hidden behind for so many generations. Maybe this is the time.

It is now our heterosexual opponents who want to hide, while still availing themselves of political appeals behind the walls of TV commercials and sermons to the converted. They deeply believe themselves to be right, and are not used to having to defend themselves. But as David Boies so eloquently pointed out, lectures and soundbites full of the convenient arguments from unexamined tradition are having a hard time standing up to scrutiny: "In speeches, no one gets to cross-examine them." Courts have to go further and further out of their way to find reasons to uphold marriage laws that are flatly, facially and glaringly unjust to homosexual citizens.

That is certainly why we win in courts of law, and have been losing in the political arena. Voters never have to explain themselves; courts always do. And that is why Maggie Gallagher and her partners in this modern crime continue to threaten "activist judges" and those of us with the temerity to argue from justice rather than politics. "We still have politics, we still have prejudice," she implicitly threatens, not incorrectly.

Balkin offers an honest and respectful legal argument to solve a political problem that happens to manifest itself in the courts. But his extraordinary effort shows how hard it is today to patch over the shabby excuses for not reading the simple words of the constitution plainly.

Jonathan Rauch's op-ed for the NY Times has caused quite a stir among gay bloggers (like Joe.My.God and Calitics) and, worse, has gotten him the support of Maggie Gallagher. But Jon makes a fundamental point that most people of the left are ignoring or understating, and those on the right are exploiting. In order to understand Jon, it helps to understand Linda Lingle.

Hawaii's Governor Lingle prominently vetoed a civil unions bill yesterday. In her mind, civil unions are just "marriage by another name," and since she opposes same-sex marriage, she was inclined toward the veto. But she took the time to listen to supporters for both sides, and in the end decided that this was not something elected representatives should be deciding. Marriage is so profoundly important that only the people have the right to decide its form.

The problems with this reasoning are obvious to lesbians and gay men, and to an ever-increasing number of heterosexuals. Giving an overwhelmingly large majority the ability to decide on or deny the rights of an extremely small minority can be problematic if the majority harbors prejudices and even misguided passions about that minority. That's not always true, but it's exactly the problem the constitution's equal protection clause was designed to guard against. Under our constitutional system, there are some decisions that even the largest majorities cannot make.

Lingle's failure to even mention the potential of an equal protection problem was more politically convenient than it was an accurate description of the legal landscape. While she made every effort to present herself as having made a neutral decision, she betrayed herself in what she left out. Equality is the very thing the legislature in her state was trying to achieve, and she could not bring herself to address that core injustice.

In fact, the apparently neutral appeal to the people's right to vote is nothing more than an appeal to what prejudice against homosexuals still exists. It is a way of reinforcing the status quo and cementing it in place at exactly the time the status quo is drifting toward a more just equilibrium.

That is the responsible criticism of Jon's piece. In a representative democracy, courts can and should be modest about their role, and overturn statutes (whether passed by legislatures or voters) in only the most rare cases. Court decisions that contravene the very strong will of a majority can and will be overturned, and if that requires amending a constitution, well that is not unheard of.

No one should know that better than lesbians and gay men. Not only have voters in thirty states amended their state constitutions to prohibit same-sex marriage, most all of them did it preemptively. In that context, Jon is not exactly going out on a limb in thinking that a decision from the U.S. Supreme Court mandating same-sex marriage in all fifty states would not go over well among the American public. There is a very specific political risk to us if the court makes the right constitutional decision. That's not a very idealistic state of affairs, but it's foolish to ignore it. Jon is not foolish.

But Jon's argument is a bit narrow because he focuses on the California case of Perry v. Schwarzenegger. When he says that the voters may have made a reasonable decision on Prop. 8, he's talking about a state where we have comprehensive domestic partnership rights for all same-sex couples. Prop. 8 did not change that. It was no less the reaffirmation of a fatuous and anachronistic view of homosexuals, but in California, the legal inequality of same-sex couples is at the margins. That's still wrong, and in my view still unconstitutional. But Jon's point remains a critical one. Too broad a decision from the U.S. Supreme Court could spark a backlash that would gladden the blackened heart of Karl Rove.

In contrast, Gov. Lingle's decision highlights what inequality looks like for same-sex couples in too much of the rest of the country - including Jon and his husband in Virginia. Not only are they barred from marriage in the state where they live, the law prevents them from having virtually any recognition of their relationship.

When she equates civil unions with marriage, Gov. Lingle leaves lesbians and gay men with no option but the constitutional one, no equality but what the constitution demands. In effect, she dares the courts to defy the voters, or dares the voters to defy the constitution itself. Hawaii's legislature attempted to provide a compromise, and she took the compromise off the table.

That is the political game the left thinks we shouldn't have to play. I can't disagree with that. But we can't wish away that reality. Courts or no courts, we still have to work for our equality. Jon can't be faulted for saying that out loud.

Charles Cooper, meet Alvin Greene.

Most politically active lesbians and gay men know Charles Cooper is one of the chief lawyers representing the folks defending Proposition 8 in the Perry v. Schwarzenegger trial. Cooper delivered his side's final arguments this week. He strenuously overargued the case, saying marriage is "fundamental to the survival of the human race. Without the marital relationship, society would come to an end."

The pretty unflappable Judge Vaughan Walker couldn't but observe - perfectly accurately -- that Cooper hadn't presented any evidence for that proposition, and Cooper responded, "You don't have to have evidence of this."

Those eight words contain the essence of how courts differ from the everyday politics we are far more accustomed to. Cooper was speaking as if he were running Alvin Greene's campaign.

Greene, this week, definitively won the South Carolina Democratic primary to face Jim DeMint for DeMint's seat in the U.S. Senate. The thing is, no one really knows who Greene is, or what he might stand for, if anything. He's a 32-year old, unemployed Army veteran who paid the South Carolina filing fee, got his name on the ballot, and without any campaign whatsoever, defeated someone who actually ran for the seat, securing 59% of the democratic party vote.

Theories and speculation abound, but the bottom line is this: It appears South Carolina's voters just picked him at random; his name came first on this part of the ballot.

And here's the point: In an election, voters can cast their ballot for good reasons or bad reasons or no reasons at all, and their vote counts just as much. The state democratic party searched hard for some reason to disqualify Greene, but he played by the few rules there were. Having done that, the voters had their say, and the fact they seem to have chosen someone nobody knew for reasons no one can discern makes no legal difference whatsoever.

The constitution does not require anyone to have a reason when they vote for a candidate. But when it comes to passing laws, the constitution does have something to say. The standards are sometimes quite strict - neither legislators nor voters can enact a law restricting free speech or the free exercise of religion - and sometimes they are relaxed to the point of torpor.

That's one of the most important questions in Perry. The court will have to decide whether a law quite explicitly targeted at lesbians and gay men is entitled to some form of heightened scrutiny under the constitution's equal protection guarantee. But even if it's not, the constitution says that the law has to at least have a rational basis.

In his response to the judge, Cooper seems to be confusing elections for candidates with elections to change the law. Voters didn't have to have any reasons at all to vote for Alvin Greene, but (like legislatures) they have to at least have something in mind - something rational - when they pass a law; and the standard may just be a bit higher still when they pass a law that discriminates against a specific minority of the electorate.

This is why the National Organization for Marriage and the Republican Party (I say this with regret) have been so aggressive in taking marriage to the ballot. Voters can, in fact, cast their vote based on passions and even prejudices, and there is no shortage of people who still harbor some serious misperceptions about lesbians and particularly gay men.

In electing a candidate, if the voters had chosen a heterosexual over a lesbian in (let's say) an election for mayor of a good-sized Texas city because (let's say) they simply didn't like lesbians, well, that's politics, and no one could challenge their reasoning. And if they'd chosen the lesbian instead, well, that, too, is politics.

But when voters pass a law that discriminates against not just one lesbian, but all of them, and all gay men too, then the constitution does have a rule. Again, it's not yet clear how strict that rule is, but even the most deferential court review requires the law to be justified by something, anything, that's rational.

The court should search hard for such a justification. Courts shouldn't lightly overturn a majority vote of the people, or of a legislature. But when a prominent and experienced lawyer tells a court he needs no evidence for his case, that is a sign of the lawlessness that our constitution is there to guard against.

H/T to Karen Ocamb

I'm probably more forgiving of heterosexual politicians who have to deal with gay rights than most gay activists. Our equal rights are hard enough for many of them to envision and talk about in private, and it's waterboard-level torture when they have to speak about gay equality in front of an audience or a camera. I don't have sympathy for their plight (millions of their fellow heterosexuals have no problem at all), but when they are in a position to actually make the needed changes to the law, I find myself rooting for them, rather than hoping they'll fail.

I really wanted to root for Admiral Mike Mullen speaking at USC, but in the end I have to share the gay community's general disappointment with him. Granted, Karen Ocamb asked him some pretty hard questions about DADT (imagine that - the man in charge of our armed services being asked hard questions in public by a journalist!), but here's where I just find him embarrassing: It's 2010, and in response to a question about Don't Ask, Don't Tell, he cannot even say the words "gay" or "lesbian." The closest he ever comes is in an indirect reference to people who have to lie - though he can't bring himself to say what they have to lie about. He dithers on about the people DADT will affect "the most" but the only troops he seems to have in mind are the heterosexual ones.

To be clear, the troops DADT affects the most are homosexual. They are referred to in ordinary public discourse as lesbians and gay men. People who cannot say those words - "homosexual," "lesbian," "gay" - are portraying themselves today as hopelessly clueless, and very nearly ignorant. I am very sorry to say that that is the way the Chairman of the Joint Chiefs of Staff comes across.

Heterosexual troops are affected by this policy, if at all, only in the sense that it caters to the ones who are - still, today - uncomfortable with open homosexuals. Certainly, their opinions should be considered, but this seems to me to be a very rare case where the comfort level of some troops is the driving force behind our policy - we force homosexual troops to lie only because their open presence might distress some heterosexuals. In most other military contexts I'm familiar with, admirals not only don't concern themselves with matters of troop discomfort, they go out of their way to assure troops don't come to expect comfort or nurturing. And that should be especially true when what leadership is fostering is bigoted notions about fellow troop members.

Admiral Mullen might, in fact, understand that. But his repeated inability to call gay and lesbian troops by their right name when they are the subject of his comments is a problem. DADT puts a burden on homosexual soldiers, and that is the burden we are all talking about when we talk about this misbegotten policy. The habit of mind that would permit anyone to avoid mentioning that quite obvious fact is the very habit of mind that needs to be cured. And a man who has that habit of mind and speech is not exactly the model of the man who should be leading this charge.

The 1970s were a pretty fruitful time in gay history, you should pardon the expression.. And despite what some people seem to think, there was an enormous amount of work being done in the realm of politics, rather than just in the courts.

A Denver attorney, Gerald Gerash, has put together a nice YouTube document of a turning point in Denver, when the police harassment that was so characteristic of the time led local lesbians and gay men to band together and fight city hall.

This is exactly the kind of thing I hope people in towns and cities across the country are putting together. History happened in our lifetimes, and we should be recording it like mad. These are people who actually had to argue that homosexuals could live productive and decent lives, and saw their arguments falling on some deaf ears.

But they also fell on ears that were willing to hear, and one of the best parts of this series is when you begin to see council members standing up for the lesbians and gay men in the audience. It takes a long time, but it happens.

There are twelve parts to this series, and they're not exactly organized very well on YouTube. And no one will complain that the piece is too slick or overproduced. But I think that's actually a virtue. This is history made by amateurs, and it's exactly how things are supposed to work in this country.

There's plenty to think about in Frank Rich's NYT Sunday column. I'm not sure if he invented the phrase, "Rat Pack From Hell," but it certainly got my Sunday off to a good start.

His discussion of Perry v. Schwarzenegger brought me back to a theme I've been pretty interested in: the right's dogged fight to keep any aspect of the trial from being televised or broadcast. That is consistent with their efforts, in general, to avoid any public defense of their opposition to same-sex marriage except in commercials and other species of sound bites, including religious ones. They're happy to agree among themselves, but they do not care to have pubic debate with people who disagree with them.

Rich takes note of the fact that the defense of Prop. 8 could only muster two actual experts to take the stand for their entire case. One of them was David Blankenhorn, who seems barely to be an expert on anything, at least in the academic or scientific sense. Like many of us, he certainly has his opinions. But it's a close call whether they're any more reliable than the next guy's. The other expert they called, Prof. Kenneth Miller, did appear to possess some expertise on politics and government, but his testimony that lesbians and gay men are not really discriminated against by initiatives like Prop. 8, isn't exactly open-and-shut.

Judge Vaughan Walker is doing everything he can to supplement the defense's case, since they don't seem to be very interested in doing that, themselves. This is how a responsible judge approaches a trial, considering the interests even of parties who don't seem capable of or willing to make their own best arguments.

Judge Walker released 39 questions he would like answered (by both sides), and Number 1 goes right to the heart of the defense's passivity:

Assume the evidence shows Proposition 8 is not in fact rationally related to a legitimate state interest. Assume further the evidence shows voters genuinely but without evidence believed Proposition 8 was rationally related to a legitimate interest. Do the voters' honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Proposition 8?

There's a constitutional question for you: What should a court do if voters genuinely, but without any basis, believe there is a reason for a law? Do honest but unsupportable and possibly discriminatory beliefs have a role in a court's decision about whether a law is constitutional?

That's important for any number of reasons, but here's how it plays out for me. It's possible very few people would actually have watched the Prop. 8 trial if it had been televised. It's also possible a whole lot would have watched it - maybe not O.J. Simpson numbers, but a lot.

The point of a trial, as opposed to a political campaign, is to examine, with some level of thoughtfulness, the facts supporting each side's best case. Prop. 8's defenders obviously don't think they have much in the way of factual support. But they also don't think they need facts. They rely on intuition and time-tested feelings and beliefs, rather than facts. Politics permits that.

In contrast, a public trial (in the sense that the public could actually watch it) would have been quite the opposite of the trench warfare of the Prop. 8 political campaign. No one really gets cross-examined in a political campaign; everyone gets cross-examined in a trial. Every piece of evidence is subject to challenge and counter-evidence, and it's hard to slide by on sloppy reasoning.

The lack of a full public trial will leave us in no better position than we were during the political battle. The questions and the answers in court are much more focused than the blasts and sputters of the Prop. 8 30-second ads. The very hard work of Ted Olson and David Boies - and the less hard work of their opponents -- will utterly disappear in the rush to judgment when Judge Walker releases his opinion.

The O.J. Simpson criminal trial isn't exactly a model for trials being made public, but whether it led to justice or not, it certainly allowed people to form an opinion based on actual evidence presented in a court. Disagreeing about the evidence is a very different thing from disagreeing about beliefs.

When Perry v. Schwarzenegger is decided, very, very few people will have had access to the strong evidentiary case made by the challengers, and the extremely weak, and nearly nonexistent case made to defend Prop. 8. Judge Walker will be accused of judicial activism if he rules that Prop. 8 is unconstitutional, irrespective of what the facts show, what his reasoning is, or anything else. He could issue a one page judgment or a two-hundred page treatise, and it will make little difference. The headlines will be written only minutes after the bottom line is available.

That is how courts are drawn into politics despite the best intentions of the framers. The public would have been better served if it had been privy to the trial, itself; we could all have seen, directly, that a court has an obligation to take more time than any voter ever will in making a decision about matters of real consequence. Maybe people would still disagree with Judge Walker's opinion, but if so, they'd be able to explain why. That, in my opinion, is the lifeblood of a constitutional democracy.

Ike Skelton, the Chair of the House Armed Services Committee, has been no friend to the repeal of DADT. But sometimes people who disagree with us can make our arguments better than our strongest supporters do, and Skelton's comments to CBS News tellingly reveal the denial and futility at the heart of the DADT opposition.

As we argue about equality and patriotism and the harm a nation can do to itself by looking at this issue through the narrow slit of prejudice, Skelton sees the problem with DADT repeal more simplistically, and in a way few of our supporters would even have thought of: "What do mommies and daddies say to their 7-year-old child?" he asked.

That's a surprisingly good question, when you think about it. Not a lot of 7-year olds will be weighing in on the merits of gay soldiers serving openly in Afghanistan, but that's not what Skelton's talking about. In fact, he's articulating the concern of the entire generation of people who grew up denying that lesbians and gay men existed - could exist - at all. They're older than 7, but when it comes to homosexuality, they have that same sort of idealized innocence. Skelton speaks for those who think that homosexuality, like cancer, should only be whispered about in public, to shelter tender minds from facing this dark truth too soon, the people who believe in their deepest hearts that homosexuality, if it must exist, is something to be ashamed of, suppressed, and kept hidden from the public (which is what those 7-year olds have been enlisted for) at all costs.

Skelton and his constituency are living in an increasingly shrinking closet. According to a new CBS poll, 77% of Americans know someone who is homosexual, compared to 42% who could say that in 1992. And while the remaining 22% today can say they don't know anyone who's lesbian or gay, they certainly can't say they haven't heard about people who are. The fact that the question is now regularly being asked in public interest polls presupposes the problem that irks Skelton and others: sexual orientation is a political subject that pretty much all Americans are asked about, talk about, and have opinions about. Directly to Skelton's point, there are not a lot of nooks and crannies left in the country where discussion of gay rights is not permitted, for adults or children. Conservative churches from one end of the nation to the other have made sure of that, as has the National Organization for Marriage and other anti-gay groups that run ads - on television and radio and in newspapers - opposing gay equality. Like discussion of DADT, those ads can and do lead kids to ask questions of their mommies and daddies.

In fact, the only place where discussion of gay rights is hindered at all is in the military. Heterosexual soldiers, of course, are free to weigh in to support or oppose (or be indifferent to) DADT - as long as it's eminently clear they are straight. Lesbian and gay soldiers, however, have to be ever cautious about what they say and how they say it, and certainly cannot articulate the fact that their opposition might arise from experience.

And that is the point. Not that we are protecting children, somehow, since they'll be exposed to the public debates over homosexuality in any number of contexts, DADT being only one. No, all DADT protects is its own premise: that homosexual soldiers should be silent about that fact, and leave the debate over their lives to the heterosexuals.

This has historically been a very successful strategy of disabling the very people who discrimination harms from explaining why, and arguing for its elimination from the law. But those days are gone. Even the new survey of military opinions on DADT will inquire into the opinions of the very people the policy harms. . . in fact, the only people the policy harms. They will still have to remain in the closet in order to be surveyed - something not even Kafka or Orwell could have imagined - but they will be asked; as bizarre a victory as I can envision.

And while all of that is going on, 7-year olds across the country will be watching TV and listening to the radio, and even talking to their friends at school. It's entirely possible they already know more about gay people than Ike Skelton does, and will likely be more comfortable viewing gay people as just people than Skelton wants them to be.

The imperative of America's press is not truth, it is conflict - or, more accurately, drama. Truth and facts are tools the press uses to enhance dramatic conflict, but it is the fight, not the resolution, that animates the press.

Gay equality provides a rich vein of material, and we are used to our opponents exploiting fears and anecdotes to support laws that put the government into the active position of discriminating, from Sam Nunn's infamous "field hearing" in 1993 where he led legislators into submarines to see how gay soldiers would be sleeping and showering this close to our heterosexual fighting men, to Martin Ssempa's ongoing campaign in Uganda to provoke citizens into a full understanding that homosexuality means eating one another's poo-poo.

But it's not just our opponents who want to work people up into a sweat. The New York Times does a fine job this morning of stirring the pot. According to their reporting, if DADT repeal passes (a prospect still months away in the Senate, apparently), there will be all kinds of "thorny issues" that will arise, from allowing same-sex couples to live in base housing together to hospital visitation.

But this being the New York Times, these concerns are coming from homosexual soldiers. See? You don't have to hate gays to exploit us; you just have to be deeply enough committed to conflict.

To be fair, the NY Times did get Elaine Donnelly to weigh in with a typically overwrought comment, in order to maintain its liberal cred. Donnelly, true to form, brought up the perils of living right next to the homosexual menace: "Same-sex couples in family housing will become a reason for families to decline re-enlistment or a change in station," she fretted. If you thought it was bad having to live next to black neighbors in the 60s, imagine what it would be like if the black neighbors were homosexual.

It is not until the 17th paragraph of the 25 paragraph story that the NY Times states the obvious, noncontroversial truth "that tens of thousands of gay people already serve in the military, many open to their closest peers, without problems."

It's possible to imagine, in some alternate universe, an accurate, truthful and informative report where that is the point. But who in our own galaxy wants to read about something "without problems"? No one - or, at least no one who isn't primarily interested in conflict and drama.

After a lifetime of loving the theater and literature, I have come to take pleasure in the non-dramatic. In our age, this is nearly a confession of error, or gross and alarming nonconformity. But sometimes I just want the facts without the adjectives and adverbs, the breathless reporters and all the agita.

Which brings me to Rush Limbaugh, and a savvy defense of him on gay rights. As Timothy Kincaid observes at Box Turtle Bulletin, while we're used to assuming Rush is a Neanderthal reactionary on gay rights, that may not be correct. Bellicosity is Limbaugh's style, and I wouldn't argue he's the calm, rational journalist of my dreams. But on gay rights, he's hardly been leading the charge to maintain inequality. He's got some rough comments about political excesses from our side, and lord knows I couldn't disagree with him on that. But when it comes to the actual policies of DADT and equal or equal-ish rights for same-sex couples, Rush isn't on the front lines.

Tim offers some evidence -- from the right -- that Rush may be squishy on civil unions, and maybe even on sexual orientation being a choice. Whatever is in Rush's head or heart, though, it's clear that the prospect of gay equality is something he hasn't exploited with the bombast at his disposal.

Which may mean he's actually a bit more responsible and conscientious than the writers and editors of today's story in the NY Times. Certainly the NY Times has taken a strong editorial stand in favor of equality. But when their news side feels comfortable and duty-bound to use us in order to make sure people have something to argue about, it's worth pointing out that it looks, for all the world, as if they're trying to out-Limbaugh Limbaugh.

Yesterday's House floor debate over repeal of Don't Ask, Don't Tell was revealing - you might even call it telling. I could not count the republicans who alleged that the democrats and the administration were not listening to the troops, were ignoring what the troops had to say, were, in fact, disrespecting the troops who risk their lives for us every blessed day.

I try to be expansive in discounting political rhetoric before I'll call it a lie, and there's enough selective truth here to judge these statements as misleading rather than fully false. But a more complete and accurate view is that the democrats and the administration, after having listened to the troops and to the country at large, and after having reviewed the policies of every other nation that has dealt with this issue, nearly all of which have allowed lesbians and gay men to serve openly, have decided that those who support repeal of DADT have the better argument than those who support retaining it. That may feel oppressive and dismissive to those whose position has not prevailed, but it is hardly fair to say their point of view has not been heard. We've all been heard.

In fact, the listening won't stop under this bill. It requires yet another study, though this one will be unique in that it will solicit the views, not only of heterosexual troops who can speak openly about how they feel, but also provides a mechanism where homosexual troops who are serving in silence can express their own feelings. Imagine that: asking lesbians and gay men who are forced to be in the closet how they feel about a policy that forces them to be in the closet. On this subject, while the views of heterosexuals are important, it would seem that the views of gay soldiers ought to be given some weight. The fact that they can't reveal their opinions under the current policy - because it would get them kicked out - seems to me proof enough that the policy is perversely and calculatedly designed to be self-perpetuating.

I'm pretty sure this kind of polling of the troops about their policy preferences is original, but our political branches do have the authority to demand such things if they think that's wise. They didn't need to pass DADT in the first place, but they had the ability to do so, and did. If they think they might have made a mistake, and that polling the troops is worth doing to confirm the suspicion, then polling it is.

But I'm with Nathaniel Frank in suspecting that the new study will show what the decade of existing ones shows - that our military, like the militaries of so many other nations, won't suffer as an institution by allowing lesbians and gay men to be truthful, and that it might even benefit a bit by ridding itself of a policy that, unique among military policies, demands people lie.

We'll see, today, if John McCain can keep the lie alive.

I can't say I disagree with some of the criticisms of the DADT compromise reached yesterday between the White House and Congress. As Americablog notes, there are loopholes that might delay or even prevent the repeal from going into effect.

But here's the thing: It was us, has always been us, who have been making the far more dominant argument that a repeal bill has to be passed this year -- now -- or it will fall between the cracks of politics in the Congress That May Come.

Politics is hard, and few domestic issues have more complicated political dynamics than those related to sexual orientation. Yes, gay issues are nothing compared to health care reform, but on that issue, the country was pretty evenly divided (depending on how you choose to slice and dice the numbers); on DADT repeal, we've got 70-plus percent of the country in our camp, and still have to drag a couple of legislators across the finish line to get a majority, even in the House.

The politics of the market are nothing compared to the residue of misunderstanding that still fouls some corners of the public debate over lesbians and gay men. That is the cold, hard reality, and I, for one, can't wish it away.

In that context, anything that removes a vile and offensive law from our books, and gives this administration the chance to act in good faith strikes me as not only acceptable but praiseworthy. Yes, implementation of the law was odious and insulting to the thousands of good men and women who suffered through it, but its very existence is an even worse insult to every lesbian and gay man in the nation, and every heterosexual as well. Removing it from our law is worth some risk.

The compromise will move the action away from Congress, where it never should have been in the first place, and put it squarely in the administration, who will no longer have Congress to hide behind. That strikes me as defensible at the least, and much more consistent with the way the rules for the military should be constructed than DADT's politicized discrimination.

I say let's remove this stain from our statutes now, while we have the chance.