IGF CultureWatch

The gay community's reaction to the Obama administration's insulting and slanderous brief in the Smelt case has had some effect. A DNC fundraiser set for next week is falling apart, and the President will announce he wants to give the same federal benefits to homosexual federal employees as he gives to heterosexuals (well, some of the same federal benefits; health care seems to be off the table - the single "benefit" that comprises the lion's share of all employee benefits).

We have every right to be furious at the President, but it's important that we be furious for the right reasons.

I don't think it is fair to criticize the administration for filing the brief. The well-intentioned but hapless plaintiffs in this case have gotten themselves (and the rest of us) in over their heads. They are certain to lose their case, and it's better if they lose early on procedural grounds rather than in a published opinion that rules against us on the constitutional issues. The administration is doing nothing wrong in filing a brief to clear away this irritation.

The brief did not need to go any further than the procedural issues, and would almost certainly have prevailed on that ground. It was a mistake to have gone further. But when it did wade into the constitutional issues, it adopted arguments - as the administration's - that cannot be entertained by any reasonable person. The argument (and I quote) that "DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage," is a non sequitur. As Joe Solomonese so tartly put it, this is to say that "DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals." Spend some time with that analysis, because Solomonese nails it. The argument assumes it is possible to provide benefits only to heterosexuals in a way that does not discriminate against homosexuals. Would it also be possible to provide benefits only to men and not discriminate against women? Or to provide benefits to whites in a way that does not discriminate against people of color?

There is only one way to reconcile these incompatible ideas; adopt the right's still dominant theory that all people are really heterosexual, and could marry someone of the opposite sex if they weren't so insistent on being perverse. Everyone could get "traditionally" married, and should, so it is right to design public policy to benefit only that form of marriage. Gay people do not exist in this worldview.

This is good enough for the right, but it is not good enough for this administration - and I don't think the President believes it. But when you look at the miniscule gesture of federal benefits, you can see the real problem he faces. The reason he cannot grant health care benefits to federal employees is because DOMA is still on the books. DOMA is the single law that most fully incorporates that outdated notion of a world that has no homosexuals in it.

The President has promised - repeatedly - that he will work to repeal DOMA. But that's all he's done: promise. Similarly, he has promised to repeal DADT. All the federal benefits and hate crimes laws and even ENDAs in the world cannot balance out the harm these two laws, which actively incorporate discrimination against lesbians and gay men in federal law, do.

DADT must go, entirely. And about 70% of Americans agree. That is how perverse discrimination can be - on this single issue, the most talented politician of our era is afraid of 30% of his constituents.

The numbers are very different for DOMA, and the President is right to be cautious. But there is no need to repeal all of DOMA in order to minimize its damage. It makes political sense to keep section 2 of DOMA in place, which allows individual states to wall themselves off from progress, while repealing section 3, the part that prohibits the federal government from recognizing any equal treatment for same-sex couples.

I can think of no president in my lifetime - no politician, in fact - who is more capable of understanding what the gay community experiences, and who could, if he chose, articulate for the American people a course of action. It is his abject failure on that front so far that has made the DOJ brief such a catastrophe. I hope his speech tonight helps to clarify that we can expect something more than just gestures from him in the next few years.

Yesterday saw a lot of passionate rhetoric about the Obama administration's brief in the Smelt case, most of it justified.

But a reader at Andrew Sullivan's site provides some clarity that may help to expose the real problem. A DOJ career lawyer (apparently) chastises those who have been criticizing the brief for being written by a "Bush holdover." The vast majority of employees at the DOJ, as with most government entities in the U.S., are civil servants protected from the political winds that blow through the top of their organizations. In that sense, every civil servant at DOJ is a Bush (and perhaps Clinton, and perhaps Bush I) holdover.

In that correct, small criticism lies something pretty profound that I think can help us understand what most likely did happen here. It's not as benign as Andrew's correspondent says, but it's also not as diabolical or cynical as many of us originally might have thought.

The brief was almost certainly written and edited by a number of civil service lawyers, with some review by top level political appointees. Those political appointees - up to and including both Attorney General Eric Holder and President Obama, himself - are the ones who are ultimately responsible for every word.

The civil service lawyers - one of whom proudly boasts of being a Mormon on his webpage - most certainly drafted the brief, and the tone of the implicitly insulting language and arguments they used was virtually invisible to them. They were required to defend a statute, and this is what they came up with.

This can explain the silently slanderous spin of the repeated reference to same-sex marriage as a "form" of marriage. This puts linguistic air quotes around "marriage," the way the Washington Times used to do. It walls off same-sex marriage from what some heterosexuals view as "real" marriage. (See how the air quotes work?)

More insidiously, the argument that DOMA is rational because it saves the government money is something no one who has thought seriously about gay equality could even remotely imagine, much less articulate. The argument reduces a claim of civil equality to one of crass financial pleading.

And, ultimately, the fundamental position of the brief, as many have noted, is that no one is being discriminated against here because, just like their heterosexual counterparts, homosexuals have every right to marry someone of the opposite sex. This is the pro forma "equality" that is laughable today to all but the most rigid anti-gay zealots.

But how could this derision not have been noticed by the President's men? First, and most obviously, I can only imagine that no lesbian or gay men ever set eyes on this brief. Perhaps I am wrong, but I honestly can't see how any self-respecting homosexual in 2009 could possibly think this brief was acceptable. While California's Attorney General Jerry Brown has had to both defend and challenge anti-gay laws, his office has the grace and simple common sense to make sure the briefs are reviewed, if not drafted in the first place, by openly gay attorneys.

There is something deeper here, though. Obama is comfortable with the cliché political rhetoric of gay equality, but this brief shows his understanding doesn't go a centimeter deeper. Or (most generously) that his Attorney General knows only the words and not the tune. To someone who understands gay equality as little more than a set of slogans and bromides, this brief might not have looked particularly offensive.

That, at least, is the most generous understanding I am willing to indulge - that the brief was written and/or edited by civil servants with an anti-gay inclination, and reviewed by political staff who know no more about gay equality than what they read on the President's website.

The ball is now in the President's court. He owes us an apology - and not one of words, but one of action. Signing a hate crimes bill won't do it. Nor will an additional imprecation to Congress to do something about DOMA. It is he who was elected President with the explicit promise that gay equality would be on his agenda. What Presidents do is lead, and after this anything less than the kind of leadership he shows on other issues will be confirmation of a betrayal of those like me who voted for him in good faith.

There are three things worth saying about President Barak Obama's Motion to Dismiss in the case of Smelt and Hammer v. United States:

(1) It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a "form" of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money. There are some respectable arguments in this motion, and this kind of disrespect is offensive.

(2) It argues that the couple don't have standing to sue because they have not "applied for" federal benefits. While there are some federal benefits that people do, in fact, need to apply for, no heterosexual couple applies for the vast majority of federal benefits like joint income tax returns - they just rest in the knowledge that they will be there when and if they need them.

(3) Most notably, we should all beware: Premature cases ruling against us can do harm long after the original has faded from memory. The motion cites specifically to a case from 35 years ago, Baker v. Nelson, in which the Minnesota Supreme Court waved off in fourteen short paragraphs any claim that same-sex couples might have a right to marry one another, and which the U.S. Supreme Court dismissed for want of a substantial federal question. This well-intentioned case from back when the 70s were in their infancy is still being used against us (it even made an appearance in California's first same-sex marriage case, Lockyer v. City and County of San Francisco). What may not have seemed like much of a question then has certainly gained some substance over time, but the damage from that case lingers and stings to this day.

UPDATE: This only makes the DOJ approving of this brief look worse. Good lord.

Dale Carpenter makes an excellent case for California to wait before trying to repeal Prop. 8. I'm still wrestling with this, myself, and think he makes a very strong argument. I'd even add a point he understates. The Supreme Court was quite clear that the effect of Prop. 8 was to constitutionalize the word "marriage," and nothing else. For constitutional purposes, same-sex couples in California are and must be treated equally to opposite-sex couples, except they can't - constitutionally - be called "married." As I've previously noted, that is a sophomoric use of a state constitution, and will have little, if any effect in the broader culture, where it's just easier to call same-sex couples married - including, of course, the 18,000 who actually are married. Compared to couples in states that don't have constitutional protection for their substantive equality, California same-sex couples don't have it so bad, with the notable exception of being denied every right under federal law - something California voters can do nothing in state law to change.

But there are very potent arguments in favor of 2010. Dale mentions money, and I think he's right that the $80+ million raised on both sides for Prop. 8 could be the future baseline. But maybe not. If the right didn't win an entirely Pyrrhic victory with Prop. 8, it was certainly a puny one, particularly in light of the 18,000 married couples who will be strolling our grocery store aisles and going to school soccer games in coming years. The primary reason Prop. 8 was able to succeed was because its political proponents were savvy enough to realize that the only victory they could deliver was a superficial one. The decision at the outset to leave domestic partnership alone was a strategic concession that acknowledged the base reality in California: same-sex couples are part of our cultural fabric now.

After spending $40 million with no more than that to show for it, I can certainly see the right finding greater value in spending its money on some other state. California already has more same-sex married couples in it than any other state and it's illegal here. Given those 18,000 couples, plus our domestic partner law going forward, is a fight to hold off the marginal differential really worth the right's time and resources? They could get real discrimination in some other state for a fraction of the cost.

Dale makes a good point about our side's failures in the Prop. 8 debate, but the Meet in the Middle rally in Fresno last month was an extremely strong sign that we have learned from our mistakes. This effort, along with some fine new television ads - outside the framework of any pending election - is exactly the sort of work we need to do to secure long-term gains in the general population. Trying to move Fresno closer to the support side is the best evidence I've seen that our more left-leaning leaders are getting the message that they need help talking to people who don't support gay rights for leftist reasons. Heck, even acknowledging that there are non-leftist reasons to support gay equality is a huge step forward for us.

While Dale may be right in general that 2010 will be a better year for Republicans than 2008, I'm not at all convinced that will be true in California. The collapse of California's Republican party, and its almost complete insulation from moderates, is more advanced here than in the rest of the nation, and their alienation of pro-gay voters is more deeply entrenched than non-Californians may realize. At least so far, I don't see much of a GOP resurgence here, and if our Republicans are pressed into yet another gay battle they are unequipped to deal with, it will only help to show Californians how out of touch these folks are. Remember, our GOP has, to this day, never officially even accepted domestic partnership rights.

I would certainly be content to wait until 2012, but I can see a good case for 2010 as well. Either way, I am so amazingly gratified to know that the only question for us is when, not if we'll have full marriage for all same-sex couples in California.

I think of myself as a Premium Member in the Andrew Sullivan Fan Club, but Franklin Foer's shout-out to Andrew in this TNR video ("Andrew Sullivan wrote last week that Jake Tapper is the straight guy who cares about gay rights. . . ") is for this post, where Andrew basically just linked to my post, "In Praise of Jake Tapper."

Andrew deserves all the praise and attention he gets for his terrific writing and thinking about torture, abortion, Dick Cheney, Sarah Palin, and a cornucopia of other deeply unpleasant subjects -- and I hold him almost single-handedly responsible for my own mental health for his pitch perfect taste in videos. But can a brother get some love here?

IGF occupies a very small corner of the blog world, but with Steve Miller, Jon Rauch and even some extra-added Dale Carpenter, I think we're providing color and original thought to the gay rights debate.

Plus, I kind of wanted Jake Tapper to know I'm paying attention . . . .

There is a good battle brewing in Washington state, where signatures are being gathered to repeal that state's recent domestic partnership law. A website called WhoSigned.org will make available the (statutorily public) information of who signed the petitions to repeal the law.

This is part of a larger movement in recent years to disclose the public information about who opposes legal recognition of same-sex relationships. Larry Stickney of the political-action committee Protect Marriage Washington, makes the case against disclosure:

This seems to be a typical pattern developing around the country where the homosexual lobby employs hostile, undemocratic, intimidating tactics wherever their interests or intent are challenged. . . They take the politics of personal destruction to new levels. I am a personal recipient of dozens of obscene and threatening e-mails and phone calls since we filed this.

This is a good point, and if it sounds familiar to those of us who are gay or lesbian, that's because it's exactly the way we have been treated for centuries, in various forms; imprisonment and police harassment, for example, are certainly "hostile," if not exactly "undemocratic," and while they're worse than "obscene or threatening e-mails and phone calls," they're certainly still an "intimidating tactic."

Stickney's comments show, in fact, how the cultural history of homosexuality, based on shaming us, is still at work today with a twist. As the movie, Outrage shows, there are still gay people ashamed of their own homosexuality who cling to the decaying remains of the closet. But now it is our opponents who are most loudly shouting about the need for a right to privacy. As we've come out of our closets, they're trying to construct their own.

For the record, we'd be perfectly happy if homosexuality didn't need to be a political issue. In fact, that's exactly what we're fighting for - the equality the law denies us explicitly, as in DOMA and DADT, and marriage laws that exclude us entirely. Once those are cured, I, at least, will be happy to take gay equality off the political agenda.

But until that happens, our own self-respect is on the line. And politics is not the kind of fight you can have while hiding. If Stickney and his supporters can't stand the heat of politics, they should get out of the kitchen.

The vestry at All Saints Episcopal church in Pasadena has just announced that its clergy will no longer sign California marriage certificates for any couples that it marries in a religious ceremony. They are doing this as a response to the discrimination Prop. 8 added to California's constitution. According to the vestry resolution, they wish to avoid "active participation in the discriminatory system of civil marriage," which they believe 'is inconsistent with Jesus' call to strive for justice and peace among all people."

For over twenty years now, All Saints has been a national leader in the struggle for inclusion of lesbians and gay men, and particularly same-sex couples in church life. A church like All Saints has both a sacramental obligation and a moral imperative to treat homosexuals and heterosexuals equally, even if the law does not.

And this action illustrates how churches benefit by keeping church and state separate. As Timothy Hulsey once told me with the common sense that is so obvious it is often missed, same-sex marriage is, in fact, available today in all fifty states. No state does, or could, prohibit any church from marrying any two people in a religious ceremony that falls within its belief system. Whether a particular state views that marriage as legal is a matter for the state to determine. If the marriage violates criminal law related to, for example, the age of consent, the state can prosecute the crime; but criminal sanctions no longer apply to voluntary adult homosexual relationships. If a church in Virginia wishes to marry a same-sex couple, Virginia can constitutionally do nothing to stop it. Virginia can pass all the laws it wants to ignore or discourage that relationship in the civil society, but in the church's eyes that couple is as holy as any opposite-sex couple it chooses to bless.

Heterosexual couples married at All Saints will have to suffer the inconvenience of getting a secular signature on their California marriage certificate. But in return, they will have the assurance that, in the eyes of God, their marriage is on the same moral foundation as their homosexual brothers and sisters.

San Jose (CA) Representative Mike Honda has introduced the Reuniting Families Act to allow the permanent partners of same-sex couples the same naturalization rights current law gives to married couples of the opposite sex - and it's about time. But he is running into the traditional circular reasoning that characterizes the debate over same-sex couples: some people just don't believe they're part of one another's family, and then ignore laws that recognize their relationships.

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, states the public policy difficulty: "Our whole immigration system is based on documents," she said -- documents like a marriage certificate. Without that, how can immigration officials know who is or is not a member of someone's family and who is trying to defraud the government?

That is a legitimate question - but it has an answer today for same-sex couples that it used to lack: getting married. Those who ignore history are doomed to repeat it, and this key part of the debate over Honda's bill is not a new one.

The fight over including same-sex couples within the definition of "family" got its national debut when the Carter administration convened its White House Conference on the Family in 1978. Carter soon found himself in the middle of a fight because gay rights advocates joined with others to rename it the White House Conference on Families. At the time, the formal definition of "family" was people related to one another by blood, marriage or adoption, none of which included, or reasonably could include same-sex couples. Use of the plural would avoid a complete exclusion of same-sex couples from the discussion. But the emerging religious right fought the proposed nomenclature. . . and lost. It is a loss they never got over.

Today, there are plenty of same-sex couples who have a marriage certificate. Many more have documentation from their states showing they are domestic partners or have a civil union. And that's not counting the ones whose employers provide them with domestic partner benefits and have the documentation to prove it. And some of them include a partner who could take advantage of U.S. law that applies to spouses -- but for DOMA.

It is clear that some religious groups oppose Honda's bill for its inclusion of same-sex couples. Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference, calls the gay issue "a death knell" for the bill, definitively adding, "We won't support legislation - period - that includes the Honda same-sex component." But that's no longer because people aren't sure same-sex couples are one another's family, it's because folks like Rev. Rodriguez would rather have no legislation at all than a bill that treats same-sex couples like human beings.

Republicans are getting better at talking about gay rights rather than talking around them. But you can still see a deep-seated discomfort in their stilted vocabulary.

Michael Steele, chair of the Republican National Committee, had this to say about Dick Cheney's recent sort-of comments about gay marriage, or same-sex relationships, or something along those lines:

Well, I think the vice president brings a very personal perspective to this issue and to the question of gay marriage and gay unions. And I think his comments are appropriate reflection of his family and a situation with his daughter.

You know? My view, personal view is, you know, marriage is between a man and a woman, very much in line with what the president has said. And I think that this battle should be appropriately worked out at the state level.

The states are the ones that are defining the question of marriage, and so they will be the ultimate arbiters, I think, of what constitutes marriage in a given state. So it is the appropriate reflection of the attitude and the culture of a particular community for that debate to take place. And I think the vice president has a legitimate point there.

The "legitimate point" seems to be that the GOP doesn't need to directly oppose state efforts to recognize same-sex relationships, and that is a huge step forward.

But can we stop for a second and ponder what Steele refers to as Dick Cheney's "situation with his daughter"? The situation, for those not in the know, is that Cheney's daughter is a lesbian. She has a similarly lesbian partner, and they live together, as people who have long-term relationships tend to do. My bet is they have sex sometimes. This is not "a situation," it's their life.

This is not as bad as Jeff Sessions talking about people with homosexual "tendencies," nor Cheney's inability to publicly mention gay marriage or civil unions when he intends everyone to understand those are what he is talking about. And all of these are better than George W. Bush's eight years as president -- during the 21st Century -- barely uttering the words "gay" or "lesbian," most notably absent as he was promoting an anti-gay marriage amendment to the U.S. Constitution.

The GOP is ever-so-slowly coming out of the vocabulary closet, and I wish them well. Perhaps they'll finally see how antique their arguments look when they finally phrase them in the actual words everyone else is using.

ADDENDUM: A commenter has raised the very good point about how Log Cabin Republicans fit into this. I think Steele's comments show both the magnitude of the problem Log Cabin has long faced, and the success they have had over the years. They are, in the end, trying to get better results from Republicans on gay issues, and that effort is now bearing fruit. It is, I admit, a bit churlish to criticize Republicans too much for the awkwardness with which they are -- grudgingly -- beginning to support gay equality. But that's kind of my point: the failure to use the ordinary vocubulary that the rest of the nation uses regularly to discuss gay equality -- including the word "equality" -- is what makes the GOP look so pitiful on this issue. I admire and respect Log Cabin for getting some GOPers to move away from direct opposition of state efforts toward equal rights. That's why I think these linguistic swerves and curlicues are less threatening than they have been in the past, and should be subject to a bit of ribbing.

And, to be fair, there are still enough Democrats (I'm looking at you, New York) who have the desire and the power to prevent equality in words that are pretty straightforward.

I'm not sure why Dick Cheney is getting as much credit as he does for being to the left of Obama on gay marriage. I certainly appreciate the fact that he has spoken up about the subject, but after reading and listening to his words, I'm still not entirely sure what he said.

Here is his latest comment, which repeats a theme using words he has articulated for years:

"I think that freedom means freedom for everyone. As many of you know, one of my daughters is gay and it is something we have lived with for a long time in our family. I think people ought to be free to enter into any kind of union they wish. Any kind of arrangement they wish. The question of whether or not there ought to be a federal statute to protect this, I don't support. I do believe that the historically the way marriage has been regulated is at the state level. It has always been a state issue and I think that is the way it ought to be handled, on a state-by-state basis. . . . But I don't have any problem with that. People ought to get a shot at that."

It's clear he means to (and does) support some kind of state recognition of same-sex marriage. Or does he? What he supports is a right for couples to "enter into any kind of union they wish." He doesn't "have any problem with that" (though he clearly does not support any federal equality for this "kind of union.") Still, "freedom means freedom for everyone."

So he won't be advocating for any state to pass a gay marriage bill, or a civil unions bill or pretty much anything. He'd be happy, it seems, if states simply enforced existing contract law that would allow his daughter and her partner to "enter into" some kind of partnership. If states want to do more than that, he wouldn't object.

The absence of opposition is certainly progress for a national, conservative Republican, but only because the bar is so impossibly low. While Cheney's statements are regularly reported as showing his support for same-sex marriage, I don't believe I've ever heard him use the phrase "same-sex marriage," much less "support for same-sex marriage." I'd be pleasantly surprised if he's ever said he supports civil unions, using the word "support" right next to "civil unions," in conjunction with some kind of first-person pronoun.

To his credit, he is able to use the word "gay," unlike some of his fellow Republicans who are still referring to people with "tendencies." And lord knows I wouldn't ask Cheney (or anyone) to get comfortable with lingo like "LGBTQ." But, given the fact that he and his family have "lived with" this issue for years, is it really too much to ask whether he can actually say whether he supports same-sex marriage or civil unions, using the terms that most high-school students today are comfortable with? Or to ask him whether he supports equality rather than just freedom? Because those are two very different things.