IGF CultureWatch

With New Hampshire now on board, there are 6 1/2 states that have (or will have by fall) lawful gay marriage. Of course I include California, where same-sex marriage is unconstitutional except for the 18,000 marriages that were entered into between the time of the Supreme Court's opinion in In Re Marriage Cases and the passage of Proposition 8.

In fact, we probably have more same-sex marriages in a state that prohibits them than even the reigning champion, Massachusetts -- and that's true even if you assume that a full 25% of our marriages were of out-of-state couples, an extremely generous margin.

To quote Shakespeare, "The course of true love never did run smooth," and the legal recognition of same-sex partners is following as erratic and meandering a path as any comic plot Shakespeare could have devised or stolen. The blessing is that we now have good reason to believe these preposterous incongruities are worth laughing about, rather than crying over.

Yesterday, California met in the middle of the state - the primarily agricultural city of Fresno - to begin the next phase of the Prop. 8 battle: no lawsuits, no academic theories, no manifestos and not an elected official in sight. We have only one job left: to win votes, and there is a large crop of them to be harvested in California's Central Valley. A huge number of Fresno's voters - about 70% -- voted for Prop. 8. We came to Fresno to let the 30% know we've got their back, and want to build on their good will.

The most striking thing about the rally was the sheer quality of the new generation of leaders who have taken their places naturally. The event was the brainchild of Fresno mom Robin McGehee, who was kicked out of her child's Catholic School PTA for speaking out about gay marriage. She sold the idea to some of California's gay rights organizations, and put about $15,000 of her own (borrowed) money on the line to make it happen. She was especially moving when she directly addressed President Obama about his promises to the gay community. "Show me you have the courage," she said.

Lt. Dan Choi spoke, and is proving himself to be a formidable and inspirational leader. He began his speech quoting - in Arabic - a poem from Kahlil Gibran about love. It is a sin against this country that Lt. Choi's power, intelligence and eloquence have been so casually rejected by our national leaders. But the loss to the nation's defense is the gay movement's gain. It is no mystery to me that the President will not so much as address Lt. Choi. I can think of no one who could more properly shame the President in a face-to-face meeting than the man he is responsible for firing.

Since this is California, Hollywood stars are required to be present at any public event, and while Will & Grace's Eric McCormack was fine, it was T.R. Knight from Gray's Anatomy who was most impressive. After pointing out that the Supreme Court's decision had divided California into three groups for marital purposes: heterosexuals, the 18,000 homosexual couples who are married, and the remainder of homosexuals who aren't, and can't be - he said that while it was bad enough before the decision being a second class citizen, as an unmarried Californian he'd be damned if he'd settle for being third class.

Academy Award winner Dustin Lance Black, too, is now at the very top of the class of our movement's new leaders. The Mormon Texan who moved to California's Salinas (an agricultural area near the coast, but politically not too different from Fresno), has been a tremendous political asset to us this year, speaking from an experience that lies right at the heart of the people we most need to convince.

Rick Jacobs comes from a more political background than any of these, but his leadership at the Courage Campaign shows that he understands the job we have left to do better than many of California's existing gay leaders. Our incumbent luminaries have nailed down the left in California, but still seem out of their comfort zone when dealing with anyone who doesn't already agree with them politically. Jacobs has that skill. When the crowd booed an insulting remark he quoted from the Prop. 8 campaign, he immediately hushed them, explaining that you get no political payoff from that. He reiterated a thought that had been brilliantly expressed earlier by the teenage daughter of a same-sex couple: "We must do the hard work of not judging the people we need to persuade."

The whole day and issue were summed up for me listening to Frank Sinatra on the drive down. While Sammy Cahn's lyrics have been cited before in this context, they are always worth repeating and thinking about:

Love and marriage, love and marriage
It's an institute you can't disparage
Ask the local gentry
And they will say it's elementary

Try, try, try to separate them
It's an illusion
Try, try, try, and you will only come
To this conclusion

Love and marriage, love and marriage
Go together like a horse and carriage
Dad was told by mother
You can't have one without the other

Should gay marriage be a priority for President Obama? Given the gravity of the economy, our military adventurism in Iraq and Afghanistan, instability in Pakistan and both North and South Korea, the continuing threat of terrorism across the globe, and not to forget health care reform, should we expect the President to focus on gay marriage or repeal of Don't Ask, Don't Tell?

The obvious answer to that is No -- or at least not yet. He has other things that are more important to the American people. That is the opinion of Nancy Pelosi and Rick Warren.

So it's easy to have some sympathy for Robert Gibbs when reporters press him on gay issues, as Jake Tapper did yesterday.
But here's the thing: most Americans don't need to prioritize gay marriage because they're part of the 97% or so who don't have to worry about it. Of course other things should take precedence for them.

Those of us who are homosexual, though, not only have to worry about the way the law actively discriminates against us, we have to live with that discrimination. Every day of our lives. Yes, we are affected by the economy. Yes, we worry about terrorism. Yes, health care is an every day issue.

There are very few, if any ways in which the law positively demands discrimination today. But that is what DOMA and DADT do - make discrimination against homosexuals an enforceable part of what the government does in its normal course of business.

The equal protection clause of the constitution is designed expressly to address this kind of problem - when a majority doesn't need to worry about legal discrimination (since it doesn't affect them) and can turn their focus to other matters. When a minority is particularly small, it is a severe burden to constantly have to fight for the attention that is necessary in a multifarious and noisy democracy.

But when, as in so many states, the voters actually exclude that minority from equal protection, sometimes in the state constitution itself, there is nothing but politics left for the minority - and that means sounding selfish and annoying, which can, itself, then further alienate the majority.

This is the America lesbians and gay men now face. We understand, and are part of the problems that all other Americans face and that the President has to address. But as Americans ourselves, we have expectations that are unique. Unlike the vast majority, the law - the law - intentionally and explicitly excludes us. We cannot not fight for our own equality. And if that makes us seem pushy and bothersome, we won't apologize. This has to be our priority, 24/7.

So when heterosexuals like Tapper are willing to be annoying on our behalf (and, to be fair, that is one of the occupational hazards of being a good journalist) we owe them some gratitude. Our goal is to not have to be annoying any more, but that means getting enough of the majority to join us in the project of change (which is, itself, pretty annoying) in order to remove the huge annoyance that affects so much of our lives now.

Two titans of the law, former Solicitor General Ted Olson and major Microsoft annoyance David Boies - who squared off against one another in a little case we like to call Bush v. Gore - will be challenging the constitutionality of Prop. 8 in federal court.

They are on the right side of history at the wrong time. One of the best things about the California Supreme Court decision is that it preserves something that is still necessary in our culture when it comes to gay equality - the political process. It continues to be wildly unfair that an extremely tiny minority of us have to fight for our rights with about 97% of the dominant population. But the fact is that, against impossible odds (given the history of extreme historical bias against homosexuality), we are nearly there. Many states have further to go than California, of course. . .

But that's exactly the point. The lengthy opinion yesterday is exclusively about California state law, and doesn't have any direct effect on Nevada or Idaho or Arkansas or Oklahoma. Right now, they don't have anything to fear from our court's decision. It is our constitution that was at issue, and it will be our voters who will continue to hear why we think equality with an asterisk is not the kind of thing we want to leave as our state's legacy. But until many more states have traveled the path that California and Massachusetts and Connecticut and Maine and Vermont and Iowa have, a federal decision in our favor in the next couple of years could lead us to the next DOMA - and the last one was bad enough.

Like many others, I am fast losing any faith in our President's interest in or willingness to live up to the promises he made about gay rights. Like California's hapless Governor, Obama is turning out to be a Big Talker with nothing to show for it. Right now, we need this work to be done at the political level. That is where we need Boies and Olson most. It's also where we could use Obama most, but that doesn't seem to be his thing.

After the Prop. 8 ruling, the Family Research Council's Tony Perkins proclaimed: "In the face of its toughest challenge, the state's marriage protection amendment withstood its fiercest test. We are determined to fight until marriage enjoys this same protection in all 50 states."

Sic transit the culture war. What the right won in California is a constitutional rule about use of the word "marriage" by same-sex couples. Same-sex couples in California continue to have all the rights of opposite-sex married couples, but can't call themselves married - except, of course, the 18,000 same-sex couples who are married.

Actually, even that's not true. Future domestic partners can call themselves married if they want to. They won't be able to use that word in a legal sense, but who in their local communities, families or workplaces will that make a difference to, except maybe a few self-righteous Christianists who might get huffy. What kind of a lawsuit would they file, though that wouldn't involve a first-amendment defense? People can and do misuse words with legal meanings all the time. Ask a lawyer.

I'm pretty sure that's not really the kind of marriage protection Perkins wants to fight for in the other 49 states (and DC!). He's actually won more substantive battles in states that have constitutional amendments which establish, as a constitutional principle, that same-sex couples are to be treated unequally. That's what FRC is fighting for - full inequality.

In that, California is not a victory for the right. Or if it is, it's the soft victory of low expectations.

The California Supreme Court released its much-awaited Prop. 8 decision in Strauss v. Horton today - all 195 pages of it. The majority opinion takes 136 of those pages to rule that California's voters do have the right to amend the state constitution to make sure same-sex couples can't call themselves married. For the record, Justice Kathryn Werdeger comes to the same conclusion by a different route in her 10-page concurring opinion, making it a 6-1 decision, with Justice Carlos Moreno dissenting and arguing Prop. 8 should have been thrown out.

It is a pity that few of those pages will be read by those with the most trenchant comments about the opinion. As with the two other cases in California's trio: Lockyer v. City and County of San Francisco (2004) and In re Marriage Cases (2008), the court has demonstrated - for anyone paying attention to what they actually write rather than just the bottom-line result they reach - that they understand and can articulate exactly what their job is as judges. Justice Joyce Kennard has a three and a half page concurring opinion that nicely sums up the difference between last year's case and this year's model. These are not easy issues and this court takes its time to sort them out and answer every reasonable question before them.

The bottom line, though, is important. The way I read it, Prop. 8 is being upheld because it did not change - or purport to change - the full, substantive equality California same-sex couples have under domestic partnership laws. In this, the Prop. 8 proponents made not only a savvy strategic move but also, it turns out, a canny constitutional one as well.

Early on, a substantial faction of supporters wanted to argue that Prop. 8's intentionally vague language would invalidate the current domestic partnership laws as well as any same-sex marriages. But a more moderate camp prevailed, and the ballot arguments in favor of Prop. 8 explicitly said that it would have no effect on domestic partnership at all. That won them the election, and more important, it won them the Court.

The majority ruled that, since Prop. 8 didn't take away any of the comprehensive legal rights same-sex couples have under California law, the court did not have before it any wholesale revision of the equal protection clause or any other part of the constitution protecting the fundamental rights same-sex couples have. Our lawyers had many clever and creative arguments to make, but the glaring fact of California's success in protecting same-sex couples stood as the glaringly ironic barrier to the melodrama they were trying to offer up. While acknowledging that the word "marriage" is not in any sense trivial, the court's majority said that constitutionalizing the use of a word does not violate the structure of California's state government in a way that would require the court to strike down Prop. 8.

I think the court was headed in that direction at oral argument, as I mentioned at the time.

There will now be a few protests by the usual suspects in the usual places, but the real action will take place Saturday in Fresno. The ball is now squarely back in the political court; the only way to change Prop. 8 is to do another constitutional amendment. Fresno is California's fifth largest city, but is squarely in the middle of the agricultural Central Valley, and is by far the largest city to vote in favor of Prop. 8. They need to hear from us much more than San Francisco or L.A. or San Diego do, and I think this is a worthy use of our time and resources.

NOTE: Some people may be looking for more in the way of legal commentary on the decision. As is so often the case, Eugene Volokh's site should be your go-to. Plus, there's bonus info on the nomination of Sonia Sotomayor to the U.S. Supreme Court.

Senate Republicans are ready to bring up same-sex marriage as an issue for Supreme Court nominees. Sen. Orrin Hatch says conservatives want to avoid another Roe v. Wade, which is unobjectionable in my mind. I'd like to avoid that, too.

But what does that mean when it comes to the judicial philosophy of a Supreme Court justice? Roe v. Wade is controversial as a matter of politics in large part because it was controversial as a matter of constitutional law. It rests on the right to privacy, something not mentioned in the text of the constitution. That is something that could give reasonable people pause about how judges do their job.

But gay rights would not need to rely on any unarticulated language in the constitution. The equal protection clause is right there in black and white. There is certainly a legitimate question about its precise meaning. State court judges across the country have come to differing conclusions about how to apply it to particular cases. But it is wrong to argue that a ruling in favor of gay rights under the equal protection clause is the same kind of constitutional overreach as a ruling in favor of a right to abortion under the right to privacy.

That would be a fair discussion for the Senate to have. But I'm skeptical that there is much desire to have a fair discussion of equal protection when we're so used to the pedestrian discussion of "judicial activism" that Roe has carved into the landscape. Equal protection was not invented by judges, it was created by constitutional amendment. Gay equality is not controversial because of a flawed constitutional theory - after all, there is no Supreme Court ruling on gay relationships yet.

Any preemptive (and, in my opinion, distracting) confirmation arguments about homosexuality should be redirected to the genuine issue - not marriage but the constitution's command of equal treatment for all citizens. That, after all, is exactly what we have a Supreme Court for, if you take seriously the words carved into its front entrance: "Equal Justice Under Law."

We hear a lot about the virtues of traditional marriage from the right. But in South Carolina, the right is now candidly admitting that violence, too, is a longstanding heterosexual tradition -- and one that should also be protected from The Homosexuals.

South Carolina legislators introduced a bill to prevent violence in teen relationships, but when someone mentioned that the bill should include gay teens as well as straight ones, the legislature balked. The bill's sponsor, Rep. Joan Brody said, "Traditional domestic violence occurs in a man-woman, boy-girl situation."

That's what South Carolina stands for: traditional marriage and traditional domestic violence.

There are a couple of things to say about the efforts to get the White House to issue a resolution on the 40th anniversary of the Stonewall riots.

First, I suppose there is some value in trying to get the President to do something -- anything -- to recognize the fact that lesbians and gay men are engaged in a civil rights struggle on his watch. But many of us voted for this President because we believed he would actually do something to change the laws that formalize and institutionalize discrimination against us: in particular DADT and DOMA. Resolutions, like their cousin, rhetoric, are honeyed words. If we have to expend resources - and still get resistance - on mere words, what does it say about our expectations for anything substantive from the President?

Second, while Stonewall was an important symbolic event in the history of gay rights - even a "watershed" in the words of a congressional resolution - it is high time that the gay community stopped viewing it in isolation. Stonewall came almost two years after the Black Cat riots in Los Angeles had established the model of public resistance to police harassment and arrests of gay bars. That well-documented series of events in L.A., in February of 1967, may or may not have affected what happened in New York a couple of years later, but there is no doubt that Stonewall followed the rise of open gay pride that was already well-established on the opposite side of the country - and gets far more credit for this revolution than, in my opinion, it deserves.

Stonewall has become the brand name for gay rights - even here in California we have gay organizations named after it. But the Black Cat riots showed how organized L.A.'s gay community was two years before New York stole the spotlight from us.

The debate over whether the President should appoint an open lesbian to the Supreme Court is delightfully incomprehensible. I hope it keeps up.

The Gay and Lesbian Victory Fund seems to have gotten the ball rolling when they noted that Kathleen Sullivan, former dean of Stanford Law School, was a serious contender, and happened to be lesbian. Politico followed up by noting that another among the Frequently Mentioned, Pam Karlan, was also lesbian.

Seeing the opportunity to start a fight, Mark Helperin baited Republican Senator Jeff Sessions, asking what he'd think about that. Sessions said that he would not necessarily be opposed to a nominee who had "gay tendencies." As someone with gay tendencies, myself - so many that I am actually gay -- I found this pretty hopeful, despite the 1950s tinge of the articulation.

Sessions' response was entertainingly deconstructed by Jonathan Chait at TNR, then contradicted by Senator Jon Thune, who said that an openly gay justice would be "a bridge too far." Sessions then had to hide behind his party's most prejudiced constituents, confusing them with "the American People," who he believes would be "uneasy" with a lesbian. Nevertheless, he said he wants the Senate to treat every nominee fairly, "regardless of what persuasion they may have."

Focus on the Family weighed in, saying that sexual activity "should never come up" for a judicial nominee. "It's not even pertinent." The Family Research Council then entered the fray, saying that while a nominee's "personal sex life" should be irrelevant, anyone who was publicly homosexual "could impose a pro-gay ideology on the court."

The good news in all this is how it shows that the closet is a thing of the past. Despite quaint references to tendencies and persuasions, the right can no longer credibly claim that gay people should just shut up. The only remaining ground is to try and muddle the debate with images of sexual activity, which, of course, heterosexuals also engage in - and have been known to talk about.

As Jamie Kirchick has argued, when we focus on getting one of our own nominated to a prominent position, our efforts will necessarily and predictably be viewed as "cynical tokenism." That is the unfortunate legacy of identity politics.

On the other hand, neither we, nor anyone else can pretend that gay people aren't gay. It is, in fact, the consciousness of homosexuality that drives this discussion. What is unique now is that those who are comfortable talking about gay people have the advantage. This is one important way the right - and the GOP in particular -- is losing its credibility with the public. Sen. Sessions can no longer avoid having to discuss openly homosexual candidates for the Supreme Court. He seems to be dealing with this in good faith, but is still struggling with the vocabulary that every high school student speaks fluently.

Gays do not want - or intend -- to talk about their sexual activity any more than heterosexuals do . . . particularly not at a public hearing of the Senate Judiciary Committee. It is only a few lost souls who can't keep a person's sexual orientation separate from that person's private sexual conduct. Over time, they will have to get rid of that tendency.