IGF CultureWatch

We get some substantive and excellent comments at IGF, but Tom's essay in response to Steve's post on Rand Paul stands out. Tom's essential point is this: It is all well and good for a libertarian (or anyone else) to stand on principle. But once others have compromised your principle, what do you do?

Specifically in the case of same-sex marriage, Paul The Younger has said that he doesn't think the government should be in the marriage business at all. I'm not sure, myself, and can see the arguments on both sides. But he's acting on this principle only to protect same-sex couples from this governmental intrusion into liberty, while resting comfortably in the reality that opposite-sex couples are suffering daily with no end in sight. He has a similar position on the Civil Rights Act of 1964, which he doesn't think was good libertarian policy to begin with; but apparently he can live with it now. However, I'm sure he'd continue to protect the privilege of lesbians and gay men to be free of this overbearing encroachment on their rights.

The greatness of libertarianism, in my view, is that it has the proper respect for the constitution, which after all is a limitation on government. One of its principal limitations is that, when the government acts, it must do so equally with respect to all groups, and may not pick and choose among them without very good reason. Perhaps the constitution really does prohibit the government from entering into the marriage business. Or perhaps that's just a better understanding of government's proper role, irrespective of the constitution. But no court has ever ruled that this is an illegitimate function of our government, and I'm not expecting one to any time soon.

As long as that is true, then, a libertarian -- if he or she is truly principled -- must take one of two positions: either take a stand to challenge the entire misbegotten exercise of unauthorized and/or immoral authority for everyone, or else make sure that this power, as it is being exercised, is exercised without illegitimate discrimination among groups.

That constitutional libertarianism is how we should measure Rand Paul's brand. So far, his principles seem a bit more politically convenient than constitutionally defensible. Or principled.

I haven't been following much of the continuing debate over Elena Kagan, which seems (mercifully) to be petering out. It'll come back to life when her hearings begin, but if we're lucky, the worst is over.

Still, I have to get two final points on the record. First, the rumors about her sexual orientation demonstrate one thing above all else: how utterly reliant the speculation is on stereotypes. Softball. Cigars. Haircut. Build. Yes, some women who look and act like Elena Kagan are lesbians. And some women aren't. We should all be very proud of our keen senses of intuition in so definitively being able to sort out, in public, this most personal of matters.

The biggest factor in the speculation, though, is that Kagan is single. Or, as Maureen Dowd astutely notes this morning, less flatteringly "unmarried." I confess I was a little miffed that her editors stole the headline I'd planned to use, "All the Single Ladies," but the point is rich enough to warrant a bit of elaboration.

The debate over Kagan's sexual orientation may say more about the importance of marriage in our culture than homosexuality. This foolish skirmish is exactly what drives closeted lesbians and gay men into sham marriages with someone of the opposite sex -- and is exactly why heterosexuals have such a direct and personal interest in ridding the culture of homophobia, including the internalized kind that fuels the closet. As long as marriage is viewed as a marker - in fact the marker - for heterosexuality, lesbians and gay men who are ashamed or even just nervous about being homosexual will have an incentive to marry defensively. Whatever the many social advantages of marriage, it is ultimately between two individuals, and the cultural interference of homophobia has taken an enormous toll on far too many of those personal relationships.

More to the point, even heterosexuals who are cognizant of anti-gay sentiment in their environment will feel the pressure to marry, whether they want to or are inclined to, or not. Maybe Elena Kagan has been unfortunate in love. Or maybe she doesn't want to get married, or feel the need to. Yet the spectacle of this debate over her sexual orientation must be at least an embarrassment for her, if not a full measure of sheer emotional torture.

And all because she is not married.

In an ideal world without homophobia, we might have been able to have a discussion about the importance of marriage and the equal importance of individual liberty in making that choice. But we don't live in that world, and Elena Kagan has had to suffer the needless indignity of our salacious speculations about a subject that is alluring to us, but about which we know absolutely nothing.

Andrew Sullivan and Glenn Greenwald want to know more about Elena Kagan. For my purposes, I think I've got most of what I need. I'll wait for the hearings, of course, and there's no telling what the opposition researchers, tabloid gold diggers and data miners will turn up, but what we already know about Kagan suggests to me she has what it takes to be a fine Supreme Court Justice.

Because the process is at its political zenith, the discussion right now is political. But the glaringly obvious fact very few among the commentariat bring up is that the most important characteristic of a judge - and particularly a Supreme Court justice - is their judgment. And chief among the issues they must exercise judgment upon is the question of what is a political issue and what is a constitutional one.

That distinction has become so muddied in recent decades - by politics - that it is hard to recognize any line at all.

But in my opinion, Kagan has done a fine job of understanding the difference with respect to DADT. At Harvard, she was required to obey the law, which in this case included the Solomon amendment withholding federal funds from any college that tried to frustrate the anti-gay policy of DADT. When an appeals court ruled that the amendment was invalid, Harvard followed the law as it was then interpreted, and when that opinion was appealed, Kagan signed an amicus brief challenging the law's validity - which was well within her rights, along with those of every American on any issue. And when the Supreme Court ruled the amendment was valid, she enforced the law as it was finally adjuged. She stated her personal opinion that it was an unfair and unjust law (which it is), but she implemented it.

It is easy to characterize this as flip-flopping, or in any number of other politically unpalatable ways, and it will be. But it shows that Kagan respects the rule of law while also holding her own moral opinions about laws she views as unjust - and knows the difference. In this, she has shown an understanding of politics that is rare among the political classes who will be judging her.

As a Supreme Court justice, of course, she will have the ability to decide which laws should be subject to the ordinary rules of politics and which to the constitution's more rigorous limitations set out to manage politics. That is an eternal question judges must face, and even the most rigidly conservative among them do enforce the constitution's limits on politics when, in their judgment, that is necessary.

But every constitutional question comes up in a specific case with its own unique facts. That is where judgment comes in, and where nominated judges should not be required to put themselves on the political record in advance. Kagan may or may not know how she would rule on the constitutionality of DADT or DOMA, just as Clarence Thomas may or may not have known how he would rule on the continuing validity of Roe v. Wade. But those questions do not come to the court without complicating facts, and those facts may make all the difference. Nor is "the law" - especially constitutional law -- something that is always self-evident. There is an absolute constitutional right to free speech that Congress may not abridge. Except in some cases. . .

Kagan's sexual orientation - or lack of one - may or may not be important in her thinking. But then, as IGF demonstrates, I hope, even being openly gay doesn't lead inevitably to any particular way of thinking, much less some specific result. The same is true of religion, which the high court illustrates for us every day. If anyone can find any commonality in reasoning among the court's six Catholic justices, I'd love to hear about it. So, in answer to Dale's question below, I'd say her sexual orientation doesn't matter a lot. He may disagree with me -- but wouldn't that make my point?

Judgment is not something that is objectively identifiable. And no biography can predict its presence or isolate it. But I think Kagan has already given us a record of sound and prudent judgment in a hard political case. That's what good judges need, and we need as many people who have it as we can possibly get.

It's hard, these days, figuring out what you can and can't say about homosexuality. This is a problem I never imagined the gay rights movement would lead us to.

David Axelrod described the new world order most succinctly on behalf of the White House. Discussion of Supreme Court nominee Elena Kagan's sexual orientation "has no place in this process. It wasn't … an avenue of inquiry on our part and it shouldn't be on anybody else's' part." Printing an old photo of Kagan playing softball goes too far. If you think I'm overstating the case, even Andrew Sullivan has agreed to shut up about it. This is serious.

Ramin Setoodeh from Newsweek also learned -- the hard way -- the current preference for avoiding The Subject unless you're clear on the party line. His misbegotten essay about gay actors portraying heterosexual characters was not well received, but it did have a point, which Dan Savage distilled in one sentence on Joy Behar's show better than Setoodeh's whole article: American audiences still retain some powerful notions about sexual orientation that they carry with them into the theater, and that can affect their view of how convincing an actor's performance is. That is as unfortunate as it is inarguable. Setoodeh tripped over his own argument (as who among us has not), but it doesn't seem to me Newsweek needs to apologize for publishing it in the first place, as GLAAD demands. The excellent responses are well worth the provocation.

But it's not just Democrats and the gay left who want to stifle discussion of sexual orientation. George Rekers is all set (he keeps saying) to file a defamation suit because people have the nerve to infer he might be a little light in the loafers after his excellent adventure with a young man not his husband in Europe.

What all of these stories have in common is that none of the participants actually wants to fully shut off discussion about homosexuality. Axelrod, Setoodeh, GLAAD and Rekers all have track records, and with the exception of Setoodeh, leverage the subject when it suits their purposes (which, for GLAAD and Rekers is nearly all the time). What the politically inclined among them are trying to do is corral us into having only the discussion they want us to have.

I confess there are plenty of times I'd like that, too. But I try to keep a bit of humility about the limits of my own knowledge and opinions, and if I'm provably wrong, accept the correction as generously as I can, accounting for my disappointment.

This has always been the fundamental problem with Don't Ask, Don't Tell and its fountainhead, the closet. Such regimes cannot succeed unless everyone is properly coerced and follows the rules with precision. If anyone says what they're not supposed to, the whole edifice trembles. Which is to say both ideas embody human folly.

This is, and has always been, exactly the antithesis of the first amendment. Americans (and we're not the only ones) can only ignore something for so long before somebody will speak up or out. And that is true whether the White House or GLAAD or the military establishment or George Rekers is trying to enforce a narrow view - and it's true whether what's being said is good or bad for any particular party.

Most everybody who's at all interested in gay rights has an opinion about Dr. George Rekers' recent vacation. The Miami New Times did some good journalism in discovering the noted anti-gay doctor's weeklong trip to Europe with a sexy, young male companion/rentboy/prostitute/sex worker.

Rekers presents himself as a scientific authority on homosexuality, and Florida's Attorney General, Bill McCollum (who is now running for Governor, and from Rekers) bought the pitch and paid him $87,000 as one of only two witnesses to defend Florida's gay adoption ban. Rekers testified under oath that lesbians and gay men are mentally unstable and thus unsuitable to be adoptive parents.

I have no idea why Rekers, a 61 year old married man, was taking a vacation in Europe with a 20 year old male; perhaps his wife knows. His explanations covered a lot of territory in their various incarnations: He needed someone to "lift his luggage" because of a recent surgery; He was just evangelizing a sinner (and paying a few thousand dollars for the opportunity, perhaps from the money earned from McCollum and the Florida taxpayers); He had no idea the young man advertised on the explicit Rentboy.com, touting his endowment and willingness to please customers; He was "never involved in any illegal or sexual behavior with his travel assistant."

It may not have been illegal, but if the "travel assistant" is to be believed, reasonable people could conclude that nude body massages involving "the long stroke" across Rekers' penis, thigh and anus is "sexual behavior." I guess it depends on what the meaning of "penis" is.

But as the right once again curdles in embarrassment, and the left piles on, I'd like to offer this observation: If the glaringly obvious conclusion is true, that Rekers is, in fact, a frustrated homosexual who won't allow himself to actually have sex with another man, then he has created for himself, exactly the hell he and his colleagues believe homosexuals are headed for or deserve. I can't imagine what it must be like to share a room - naked - with an attractive young man I've paid a lot of money to, and not have sex with him. Whether that's hell or not, it's certainly got all the earmarks of earthly torture.

And that's really the point. This is the torture closeted lesbians and gay men were forced to negotiate in the days when any disclosure of their sexual orientation could land them in jail, or worse. Even the most private moments could result in exposure, prosecution or blackmail, and the fear of going too far distorted the most intimate relationships. That was daily life for a person of homosexual orientation.

And this is the way the anti-gay side continues to believe the world ought to be. Rekers is, in fact, living in that world, the one so many of the rest of us have left behind as we've claimed our self-respect. His world - his hell - is now inhabited only by those who want it, or believe it is their fate.

That's the small, mean justice of this story.

Isn't it about time someone did a little shout-out for lesbian triumphalism in journalism? Over the last year or so, I've found myself relying on Kerry Eleveld's coverage of goings-on in the nation's capitol, and Karen Ocamb's excellent attention to the important stories in California and the West. Eleveld is getting increasing national attention, and is a well-recognized part of the Washington press corps. And while Ocamb is handicapped by not suffocating herself in the politically incestuous world of DC, her site is invaluable for anyone who acknowledges that there is life - including political life - in the far away lands beyond the beltway.

Both women are accomplished, aggressive and smart. Ocamb has worked long and hard to get where she is, and it shows in her work. Her piece on the passing of former LA Police Chief Daryl Gates demonstrated the depth of her experience and understanding of the gay rights movement in Los Angeles. Eleveld is newer to journalism, but clearly has the natural skills to thrive in Washington's hothouse.

The only news in this observation is that there's no news. Two women who happen to be lesbians, one on each coast, developed their journalistic talents and are now flourishing. And we're all better off for it.

The rigid conventions of mainstream press reporting are nowhere more agonizingly evident than in the reports of President Obama's presidential memorandum on hospital visitation. You can watch the pseudostory deconstruct before your eyes in the LA Times report, which starts out by saying the directive gave same-sex couples a "victory" without having to pick a fight, then accurately but inconsistently reports that it grants no one any new rights or benefits, and goes on to state the truthful fact that even the Catholic Health Association "applauded the move."

This is all there is to the story: The President told hospitals that take Medicare and Medicaid dollars from the federal government (pretty much all of them) that they have to (1) follow existing federal rules that allow patients to designate visitors; and (2) comply with existing regulations that require hospitals to obey state laws about a patient's advance directives and any other legally binding documents the patient might have signed concerning health care matters. In addition, the memorandum (3) solicits "additional recommendations" about what the Department of Health and Human Services can do to respect the rights of gay and lesbian patients and their families. There's no need here to do any more than shoo you over to William Dyer's blog, which does a brilliant job of diagramming the play, doing everything but showing it to you on slow-motion film.

The only thing I'd disagree with Dyer about is his description of the President as a charlatan. Certainly this little saga shows how lazy and credulous the press is - no surprise to any of us who watch Jon Stewart. And it also shows how little it takes to constitute a "victory" for gay rights at the national level.

Nevertheless, there is something here, however minuscule. In fact, there have been cases where hospitals have ignored the legally binding documents that same-sex couples have entered into. I don't imagine this happens a lot any more, but every time it does, it is the most sickening, tangible kind of bigotry.

In a hospital, heterosexual relationships can be, and usually are taken on faith. In an emergency room, the statement, "I am her husband," will not require much, if any, proof. In less extreme settings, the relationship will almost certainly be part of the patient's ordinary medical records. A glance at the computer is all the confirmation anyone needs.

But while heterosexual couples can opt-in to the legal netherworld of the unmarried, same-sex couples get that as their default. The modern movement to allow a non-spouse legally binding power of medical decisionmaking disproportionately helps same-sex couples, but only to the extent they (a) have taken the appropriate steps, and (b) find themselves in a setting where someone will bother to acknowledge that legal power. None of this would be necessary if they were simply allowed the right any other couple has to get married in the first place.

The President's memorandum says that, yes, the federal government does mean it when it says that hospitals accepting government money must obey the law, both state and federal - and that includes giving proper effect to legal documents. That is one of the things a President can do. Among the hundreds of thousands, or millions of laws on the books that go unenforced or even unnoticed every blessed day, a President can focus in on a few that he views as significant in their invisibility.

The President's memorandum doesn't do much more than that. But it says a great deal that such a routine and bloodless action warrants headlines.

Sometimes we don't notice our victories until long after a battle has been won. Over the last couple of years, gay marriage has secured territory most people didn't even realize was contested, and its loss will be far more devastating to gay marriage opponents than their victories in all the court cases and all the elections in the world.

I'm talking about sweetness.

Our opponents demonize us -- sometimes subtly, sometimes explicitly, but viciously and relentlessly. Their chief weapon is sex - ours, not theirs -- overlaid with a self-righteous piety that is funny when Dana Carvey does it, and wrongheaded no matter whose pursed lips it leaks out of. But while everyone from the Pope on down has been focused on the inherent disorders and immorality of homosexual sex, another front in the gay rights battle opened up: Gay teenagers in love.

This year saw a slate of prom stories across the south in Mississippi, Georgia and North Carolina, and while the outcomes varied, the facts were the same: lesbian and gay students wanted to take a date to the prom, a date consistent with their sexual orientation.

It's pretty unlikely any of these kids will show up in recruiting materials circulated by the National Organization for Marriage. Take a look at the pictures of these kids, and try to figure out how you'd attack them - or why you'd want to. If you want the ugly side of this debate, you have to go to the adults opposing them, ganging up against Constance McMillen and calling her selfish for daring to think she should be able to go to the prom and dance with her date just like her friends.

It is victory enough that teenagers in the South are now claiming their proms. But they're also claiming time on network television. Here are two gay teens kissing on "As The World Turns." And here is a sequence of scenes where Justin comes out on "Ugly Betty," after a four-year story arc.

Neither show is a cultural landmark. But in a way, that's the point. This kind of thing is well within the worldview of people now, barely worth commenting on.

"Ugly Betty," in particular, gave us a couple of things that are inevitable precursors to gay marriage. First, young Justin has a very openly gay mentor, Mark. The irresponsibility and selfishness of Mark's life melts away as he gently and understandingly leads Justin through the conflicts and torments of adolescence in a way that his straight family - though completely, even overly, sympathetic - can't. (And I don't pretend to any neutrality here - I'm a fan of the show; but even if I were less biased, I think the point holds). Helping Justin makes Mark a better man. Where has that story been hiding all these years? The last American generation of gay and lesbian kids who couldn't imagine having an older relative/friend/teacher who could understand them has passed into history.

Justin also has a supportive family. This is now fully within the imagination of gay teens, even those whose family is not. When Derrick Martin was kicked out of the house by his parents in Georgia after media attention over wanting to take his boyfriend to the prom, he got outside support that had no equivalent when many of us were his age. The idea that his parents might be the ones acting wrongly is available to him, and kids like him. That does not ease the emotional pain or harm his parents are inflicting on their son, but it is a safety net we have been able to provide to cushion his fall. More kids will have supportive families as time goes on, but even those who don't will be able to know that they are right to be honest with themselves, even if their families cannot handle the truth. These are kids who might even be able to be patient with their parents, and be able to repair the relationship over time.

And that brings me to the sweetness that pervades all this. When Justin finally comes out on "Ugly Betty," it is not by making any announcement, or saying anything at all. He simply holds his hand out to his boyfriend as an invitation to dance - to dance with everyone else at his family at his mother's wedding.

There was no clear and unambiguous image like that for those who grew up in earlier decades, and I can't imagine how valuable it will be in the years to come. It will, of course (along with many other positive images), be a foundation for kids who are coming to identify as homosexual. But more important, it will be there for all the heterosexual kids, with no fear in it, and no evil, nothing to worry about and nothing to oppose.

The lack of that sweetness is what has most afflicted the public perception of homosexuality throughout history. It comes from the failure to view homosexuals as people who love one another. Imagine what it must be like to envision a group of people who don't have love in their lives, just sex.

If I were Maggie Gallagher or Brian Brown or Martin Ssempa or Pope Benedict, I can't think of anything that would scare me more than the gentle joy of two high school girls holding hands, swaying to the music at their prom, or two boys dancing and laughing with the family at a wedding. After a centuries long fight, we've got those images fixed now, real ones and fictional, and they won't ever be going away.

I'm not staying up nights waiting for the Pope to apologize for his role in covering up - and I'd say offering tacit acceptance of - child rape by Catholic priests. As alcoholics and their loved ones know all too well, you can't offer a sincere apology for something you don't or can't admit is a problem in the first place.

Any apology from the Pope would be putting the cart before the horse. This isn't a tragedy just of human frailty or even of bureaucratic self-preservation and corruption. The original sin here is doctrinal.

The problem isn't celibacy - or only celibacy - it's the Church's cramped and careless view of nature, and specifically sexual nature. The Church trumpets the notion that God has ordained sex only for procreation, and that God's nature is itself being violated by every sexual act with any other intention; and even a correct intention isn't enough if the act isn't within a properly consecrated heterosexual marriage. This is nature writ very small.

In contrast, the demand that priests be lifelong celibates is a decree to those who are merely human to defy nature itself. What was originally crafted as a supreme sacrifice to God has turned into (if it has not always been) the institutional torture of human beings that plays out in these all too predictable everyday tragedies. Yes, some priests don't molest children. Perhaps the Vatican is correct that the vast majority of priests are entirely innocent of the charge.

But if anyone believes any majority of priests is actually celibate, they certainly aren't very vocal about it. A reasoned definition of nature must include human nature. Even without being philosophers, most Catholics have a more coherent view of human nature than their Church does, as they mock the Vatican's mad directive about birth control.

Priests and homosexuals are the only small groups that the Vatican still feels it can impose its disordered view of nature upon. The priests can speak for themselves, as can the remaining homosexuals who continue on as Catholics.

But the Vatican insists on burdening the rest of the world with its error about human nature in its stepped up campaign against gay marriage -- and gay rights more generally -- worldwide. What it cannot enforce upon its own clergy it wishes civil government to order for homosexual citizens - and digs deep into its pockets for the funds. This miserable crusade is the best the Vatican can do to distract from its barely existent threads of credibility on sexual matters.

None of the Church's problems will or can be solved until it is able to acknowledge that it is wrong about sex. Catholics know that, and so do most other religions, even those that agree with the Catholic misunderstanding of the side-issue of homosexuality. Until the Vatican offers up its own confession of error, it will suffer the practical penance of attrition, both among its sexually conflicted priests and its incredulous adherents who will be wise to accept the Pope's between-the-lines advice to take greater care of their children when in the custody of Catholic clergy.

There were many questions and much speculation (particularly in the Comments to my post) about the underlying facts related to the Catholic School in Boulder that expelled the children of a lesbian couple.

That couple has issued a statement anonymously (to protect their children's privacy). It lays out the facts clearly, concisely and with a cool passion I can only admire. If there's any better commentary on this situation, I can't imagine what it would sound like. If this case has caught your attention at all, their words are a must-read.

I titled my post "Suffer the Children," but I am happy to take it back. These children have got a couple of the best parents in the world, and while their church is doing everything it can to undermine these women's amazing parental skills, any suffering the church may be causing to the kids is more than compensated for by God's gift of their moms.

(H/T to Towleroad)