IGF CultureWatch

Rod Dreher's interview with Maggie Gallagher is well worth your time. Like the marginalized tea partiers who will be complaining today, Gallagher is convinced she is under siege from forces that mean her no harm.

While she and Dreher repeatedly invoke "war" and "battle" imagery, the rest of us are having a civic debate about whether and how to treat same-sex couples equally under the law. That is a reasonable discussion to be having in light of longstanding constitutional protections and the rise, in recent decades, of an openly homosexual minority who have abandoned the historical shame that their sexual orientation was expected to require. They do not want to have to marry people of the opposite sex, and an increasing number of heterosexuals agree that they'd prefer not to have the culture encourage that sort of deception.

Gallagher says that "2/3 of Americans agree with us," but what is it they agree with her her about? That same-sex couples should have no legal rights as couples? That they should have some legal rights, but not marriage? They they should not be able to call themselves married?

Few in the National Organization for Marriage, and certainly neither Gallagher nor Dreher, get to that level of detail, but that's where the rest of us are now. For example, Gallagher cites the win in California. But what is it that her side won here? Our Supreme Court ruled that same-sex couples are entitled to the equal protection of the law, as the constitution says, including all the rights, responsibilities and obligations that heterosexual married couples have. In approving Prop. 8, the voters said that same-sex relationships could not be called marriages. Nevertheless, they kept all of those rights, responsibilities and obligations intact under our existing domestic partnership law. This keeps some aspect of the stigma against same-sex couples in place by making the use of the word "marriage" a constitutional issue. But it does not change one aspect of California's laws that treat same-sex domestic partners the same as heterosexual married couples.

That is the victory that Gallagher and the National Organization for Marriage are claiming in California. And this is how she, and the right are losing not some war, but their credibility. Her criticism of some gay rights extremists who use words like "hate" and "bigot" is well taken, but ironic since she uses the same kind of rhetoric, untethered to any recognizable reality.

Her risible new video, with its ominous trope of a "gathering storm" is typical. No one except those who believe same-sex couples are entitled to no rights at all thinks that such melodrama is warranted. Same-sex couples with legal rights do not constitute a gathering storm - they are a spring shower.

Pastor Rick Warren wasn't able to appear on This Week this week. Like many people, I want him to engage in the debate over same-sex marriage, and hoped George Stephanopoulos would have asked him some pointed questions about his views on the subject.
But I was also prepared to be disappointed - not in Warren, but in Stephanopoulos.

Stephanopoulos, like Larry King and others, has shown he is more interested in the conventional gotcha school of journalism than in actually asking - and getting answers to - real questions. And like spectators at a monster truck rally, too many people love to revel in the demolition. That's why so many are mesmerized by the flap over Warren comparing homosexuality to incest and pedophilia. That is certainly what I would have expected Stephanopoulos to press Warren on.

But that's not a real question. For the record, here are the kinds of questions I think journalists - and lesbians and gay men - should be asking Warren - questions he should be answering:

(1) Do you acknowledge that other religions, some of them Christian, accept gay marriage, and find support for that conclusion in the Bible?

(2) I understand that you believe the Bible says marriage is only between one man and one woman; but the discussion we are having is not a Biblical or theological one; it is a civic one. Do you have non-theological reasons for imposing a secular rule that prohibits same-sex couples from having the same legal rights (irrespective of their religious beliefs, if any) granted by the state when heterosexual couples take those legal rights for granted?

(3) The equal protection clauses of both state and federal constitutions are in place to protect minorities from being subject to different rules than the majority applies to itself. Is it so important to treat homosexual couples differently that they should be exempted from legal equal protection?

(4) If same-sex couples are entitled to some equality for their relationships, would you support laws granting them similar rights, but not calling those relationships marriage? Why or why not?

(5) Would you accept openly same-sex couples into your congregation? Would this depend on whether they were married or not? Explain your reasoning.

Journalists (and, to be fair, their audiences) who focus on distractions like Warren's comments on incest and pedophilia (which he did make, and which he has since backed away from), or his statement that he had not campaigned in favor of Prop. 8 (after having made a video expressly telling people, at least three times, that they should vote for it) too easily allow religious leaders to avoid answering these questions. Religious leaders obviously want to have a discussion about religious belief because they will win that argument every time - no journalist can talk a pastor out of the belief that the Bible says marriage is between a man and a woman, if that is what the pastor believes.

Here, Warren and others have chosen to engage in the secular discussion outside of their church, and that is a good thing to my mind. But the secular discussion includes churches and religions that fully support same-sex marriage (and have signed on to legal briefs in courts from California to Vermont), churches and religions that oppose same-sex marriage, and churches and religions that remain neutral in the debate. What we want to know from Warren is which of these positions - in the secular debate - he thinks his church should take - and if he has any reasons for that which a non-adherent to his religious views could accept.

Steven Waldman has another defense of Pastor Rick Warren up at Beliefnet. He does the best he can, but this paragraph struck me as discordant

Having not learned my lesson, I want to close with another defense of Rick Warren. Despite his lack of self awareness on gay marriage (and the pain he's caused gays), I still think that he deserves to great credit for his extraordinary work in fighting poverty and disease in Africa. This man is saving thousands of lives and we should keep looking at the full Rick Warren.

But how much longer will we continue to allow people to get away with this kind of non sequitur? Rick Warren's dedication to fighting poverty and disease in Africa is not related to, nor a defense of his public pronouncements (and those significant silences) on gay equality.

Everybody's probably got the news that Vermont became the first state to adopt same-sex marriage through the legislative process. For those keeping track, California's legislature passed it twice, but our Governor vetoed the bills. Interestingly, so did Vermont's governor, but their legislature overrode the veto. Way to go!

This is remarkable for all the obvious reasons: it was passed by the people's repesentatives, by a wide margin, and without being under court compulsion. I am simply amazed.

But I'm also a bit peeved. I'd hoped California would be the first to do this. Now, the only landmark left for us is to be the first state to have the voters, themselves, adopt same-sex marriage directly. This is going to be a challenge, but we Calfornians are up to it!

I will be interested to see how Damon Linker responds to Rod Dreher, whose post yesterday offers substantive, thoughtful and non-theological arguments against same-sex marriage. As a gay man who's worked on this issue for a quarter century now, I am fascinated to watch the debate move fully into the heterosexual world, since they are the 97% of voters who will be charged, in our democracy, with deciding the legal rules that will apply to lesbians and gay men.

I'd expressed concern that Dreher was avoiding the central issue of defending his position and focusing, instead, on peripheral issues and perceived slights and insults. But in this post, he gets to the heart of his case.

First, he is concerned that gay marriage is a sign of "autonomous individualism" which is antithetical to a tolerably decent and stable civilization. Second, he believes that same-sex marriage "tells a lie about human nature, and the nature and purpose of sex and sexuality," and that we should not teach our children that marriage means whatever we want it to mean. He also expresses concerns about encroachment on religious freedom, which Jon Rauch's proposed compromise would address, though Dreher does not seem aware that it has been offered. Finally he quotes at length from Jane Galt's libertarian essay about same-sex marriage, which seem to boil down to this: "By changing the explicitly gendered nature of marriage we might be accidentally cutting away something that turns out to be a crucial underpinning." Her point is not that same-sex marriage should be banned, but that we can't always imagine fully what the consequences of social change are -- a fair statement.

These are arguments that can be addressed without resort to the Bible, and for that I'm grateful. While Linker will, I'm sure, have his own thoughts, I think it is important for someone who is actually gay to provide some perspective here.

For example, it's easier for a gay person to see the paradox of arguing against both same-sex marriage and concerns about autonomous individualism. In fact, for someone who is gay, the policy of prohibiting same-sex couples from forming committed, legally binding relationships for themselves and their children is what leads to the perception that gay sexuality is unchecked. Isn't it the lack of such relationships that demonstrates gay men (in particular) are autonomous individualists, and actually seems to prefer that state for us - or at least offer us no alternative?

That relates to Dreher's second point about the nature and purpose of sex and sexuality, and I think that lies at the heart of my differences with him. If the nature and purpose of sex and sexuality is procreation and only procreation, then his objection is not to same-sex marriage, but to homosexuality itself. Whether or not gays get married, their uncloseted existence in the society is a challenge to that notion of sex. But procreative sexuality has a much bigger antagonist than the 3 percent or so of us who are gay. It was not gays, but the U.S. Supreme Court who told heterosexual married couples in 1965 that the constitution guaranteed no state could prohibit them from using birth control, and followed up a few years later to clarify that this protected single heterosexuals as well. Some people really do seem to find it problematic that heterosexuals (particularly younger ones) enjoy sex so much, but I'll be damned if I'll take the rap for that. It is, perhaps, a bit harder to get heterosexuals to give up their constitutional right to nonprocreative sexual pleasure than to place the blame for sexual libertinism on a group of people who are asking, not for the legal right to have sex, but the legal right to have their relationships acknowledged.

That leads into Galt's issue about any change to the "explicitly gendered nature of marriage." Again, it's not marriage that's the issue, it's homosexuality in general. But that anxiety doesn't just arise because we're out of the closet. Heterosexual drag queens, metrosexuals, women in positions of authority and any number of other things are also constantly irritating ages-old gender roles.

As Camille Paglia has made clear for decades, though, none of this is new or surprising to anyone who's paid any attention to history, literature or the real world. Shakespeare practically cornered the market on women dressing up as men back in the 16th Century; you can't throw a rock through the 17th Century without hitting a dandy or a fop; and if the women's suffrage movement did anything, it cemented our modern idea of women as men's equals in the culture -- though the cement is still drying.

It is unfair that homosexuals are being held, somehow, accountable for the tensions that sexual roles are subject to today. It's not in our power to wipe out the memory of Sex and the City and Will & Grace. We live in a civil society right alongside heterosexuals, and that's not going to change. If we can't have equal marriage rights, what can we have without transgressing Dreher's concerns about gender roles in marriage? That isn't clear to me in Dreher's posts. Should we be allowed to enter legally recognized civil unions identical to marriage? Be allowed some of the same legal rights as married couples but not others? Have our relationships ignored in the law, as they have been for centuries? I do not think Dreher would believe we should simply disappear, so unless he thinks that we are somehow not really homosexual at all, and are just being perverse in not choosing to marry someone of the opposite sex, it is fair to ask him how he thinks the law should treat our relationships.

That, ultimately, is the question. Marriage is the simplest and most obvious answer, but if it isn't the right one, we need to know what is.

The Iowa Supreme Court ruled today that the state law excluding same-sex couples from marriage denies them equal protection. I've just read the opinion, and have a couple of preliminary thoughts.

This is the first opinion that has upheld gay marriage unanimously. All of the other state court opinions, from Hawaii in 1993 through California have been divided.

The opinion is a careful exercise in logic. It is easy for judges to get carried away with grand pronouncements and inflated rhetoric for the ages. Most issues that come before even state supreme courts tend to be mundane legal matters, and whatever can be said of same-sex marriage, it is not mundane - nor will the opinion go unnoticed. For the most part, the Iowa decision avoids the temptation to get stagey and grand, and that is welcome.

The core of the decision rests on this single paragraph, which sums up the reasoning lesbians and gay men have been offering for decades now:

"Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all."

This, of course, makes all the sense in the world to us, but the fact that it requires explaining to others shows why equal protection is a necessary constitutional protection.

We have come a long way since 1971, when the Minnesota Supreme Court decided, in a fourteen paragraph opinion, that no right to same-sex marriage could even be considered, because marriage is simply defined as a union between a man and a woman, period. Those brief paragraphs stand in start contrast to the 70 pages in this opinion, the 160 (including concurrences and dissents) of California, and the acres of paperage devoted to all of the other more recent cases on this issue.

From the unanimous rejection of our claims 28 years ago to today's unanimous acceptance of our arguments, this country (and, increasingly, the world) are seriously considering what marriage is, and what real reasons there might be for excluding same-sex couples from its legal obligations and protections. This opinion, like the others that have preceded it, will not end the discussion, either in Iowa or anyplace else. But the fact we are able to have the discussion now is tribute to a culture that is willing to think through its legal structures, and ask questions of itself.

The Iowa opinion not only asks those questions, but takes the time to think through the answers - and shows its work. You may agree or disagree, but unlike the first opinions on same-sex marriage, you have some reasoning to agree or disagree with. And for a group like gays where even today Don't Ask, Don't Tell is the law and practice in too many areas, this is progress.

***Correction***

I have had my arithmetic gently but firmly corrected in a Comment -- it's been 38 years since 1971, not 28. I'm leaving the original up to try and discipline myself.

Rod Dreher has two new posts about same-sex marriage here and here.

The first purports to answer the arguments of Damon Linker and Andrew Sullivan, but does not. In response to Linker's arguments, Dreher dismisses Linker's casual summation of their disagreements, and then goes into a lengthy critique of liberalism's hegemony in modern America. He then observes it's hard for conservative arguments against same-sex marriage to be taken seriously, and moves on. He does not mention, much less answer any of Linker's substantive arguments. With Sullivan, too, Dreher finds a snippet about the Pope objectionable, and defends orthodox religious thinking about moral authority. But again, he does not engage any of Andrew's arguments in favor of same-sex marriage and show why they are wrong. Instead, he repeats the trope that if we have same-sex marriage we're getting polygamy, too, and bemoans the fact that we keep talking past each other and getting all emotional.

His second post asks whether gay marriage will strengthen same-sex unions or undermine the concept of marriage - a binary formulation that leaves unexamined the possibility that it might strengthen same-sex unions and strengthen marriage as well; or leave marriage unchanged in the minds and relationships of most heterosexuals. He then returns to form (at least on this issue) by finding quotes from liberal stalwars like Matt Foreman, Joe Solomonese and Jenny Pizer, and linking to the bête noir of the right, the "manifesto" called "Beyond Same-Sex Marriage," which was recently cited by the American Law Institute. Again, Dreher doesn't man up to the best arguments being made in favor of same-sex marriage, focusing on liberal boogeymen who are much easier to refute. "Beyond Same-Sex Marriage" may not be the Protocols of the Elders of The Castro, but it's not anything that's ever driven the debate over same-sex marriage, and is far more popular as a whipping boy of the right than as an agenda for much of anyone.

I think this shows that, while several of us are very interested in engaging him in the debate, it is Dreher who is talking past us - or, more accurately, around us. There was plenty to respond to in both Linker's and Andrew's posts for anyone who wanted to engage the issue of same-sex marriage in a pluralistic democracy - which is the question. I, too, had a couple of what I think of as serious issues with Dreher's arguments that might be worth responding to.

Those were not the arguments Dreher chose to take on. If you want to have a discussion with someone, it's hardly polite to keep referring to someone else's arguments, and ignoring what the people you're supposed to be conversing with are saying.

An excellent and enlightening discussion has broken out over gay marriage between Rod Dreher at Beliefnet and Damon Linker at TNR. (In order, the posts are here, here, here, here, and here) Andrew Sullivan weighs in at length, and does a lot of the heavy lifting to add a gay perspective to the discussion. There are only three additional points I want to add.

First, and most obviously (and therefore most in need of being pointed out) this is a debate between two heterosexual men about gay equality. That, by itself, is important. Women have historically been more comfortable discussing homosexuality than straight men, but that seems to be changing for the better. Some of the debate focuses on Linker's characterization of Dreher as having a "fixation" on homosexuality. This is unfortunate because it is a distraction about a personal and subjective matter. I am happy to set aside that issue and accept that Dreher simply wants to engage the debate, and good for him. However, it is certainly worth noting, as Dreher does on his two primary posts, that (whatever his own feelings) his comments section heats up whenever he mentions "anything related to homosexuality." Why does Dreher need to warn his commenters (in bold): "Please watch how you discuss and debate this topic in the comboxes." That's not Dreher's "fixation,' but it's certainly not unusual, and if it doesn't make Linker's point, it makes some point worth thinking about.

Second, Dreher makes a not uncommon argument that gay supporters are being unfair to opponents:

"By casting the ordinary defense of normative Christian doctrine about homosexual relations as though it were a sort of mental illness, the pro-SSM side engages the issue not in a fair-minded discussion and debate about legitimate issues related to gay marriage and the normalization of homosexuality in our society, but as an ideological war to be won by any means necessary. Any critique of the pro-SSM side is to be treated as a sign of pathology."

This language should ring a bell for those of us who are gay, something heterosexuals might miss. In fact, for many decades, homosexuality was not just a rhetorical "sort of mental illness" or a mere "sign of pathology," it was mental illness and pathology itself. Lesbians and gay men were put in actual mental institutions, were subjected to forced "cures" for their disease. When those who argue against gay equality are subject to that kind of action, Dreher's complaint will ring a little less ironically - and a little less hollow.

Finally, Dreher makes the point that:

"This stuff matters. It matters a lot. If you are a gay person, you know how much it matters to you. Why should anybody be surprised that it matters to traditional Christians, and for reasons that go far beyond any supposed anti-gay animus?"

There is, of course, a difference between how this matters to gay people and how it matters to traditional Christians. It matters to gay people because the secular law treats us differently - provides us both fewer rights and in many cases, none at all for our relationships - than heterosexuals take for granted. It matters to traditional Christians, not because they are denied anything, but because civil equality is a different rule than their sacred texts seem to support. There is, of course, dispute even among Christians about that, which is why Dreher has to qualify "Christian." But even if this view of scripture were universal, or (as in the Catholic hierarchy), authoritatively defined by a single leader, Americans live in a pluralistic nation of motley religious and irreligious views. Traditional Christians have every right to make whatever case they believe, but have to know that arguments from religious authority will only go so far in a debate about the civil law.

It is the collapse of the secular arguments against gay equality, one by one, that has left religious arguments standing alone. The fact that "traditional" Christians have to identify themselves now reveals they are appealing, not to "religion," but to a particular approach to religion that is, itself, part of America's religious pluralism. After all, Dreher first weighed in on this issue in response to a post at Andrew Sullivan's site about how a gay man's reference to his husband at their Catholic parish was accepted as unremarkable.

The U.S. Census is gearing up a monumental effort to make sure minorities are counted in 2010.

But that effort will not apply to homosexuals. As I argued in The Pretenders, the Census folks, far from seeking us out, are doing all they can to make sure we are not counted -- at least not our married couples.

And that is a very clear public policy choice. The government wants, very much, to know how many racial and ethnic minority members we have, so it can make sure their concerns are being addressed. But the government does not want to know how many same-sex couples there are, which frustrates the ability to have our concerns addressed.

The Census is a very good way of discerning what the government wants to know, and what the government wants to keep hidden. And it is up to us to keep asking why they have an interest in keeping the number of our publicly acknowledged relationships invisible.

When Jonathan says the Brookings Institution panel was A Great Debate, he isn't kidding. Jon and David Blankenhorn articulated the philosophical change in style they are aiming for: a discussion that pits two good things against one another (in Blankenhorn's words) rather than one about bigots against perverts (Jon).

If that were all that was said, the debate would have been worth everyone's time.

But another theme emerged, and it will be the crux of the political problem if the compromise gets any takers -- as I hope it will. In order to get the federal government to accept state laws recognizing same-sex couples, states would have to enact robust religious conscience laws making clear that religious organizations would be protected against lawsuits forcing them to recognize same-sex relationships.

But "conscience" is not an organizational attribute, it is a personal one, and the compromise would apparently have to stretch far enough to reach individuals. Everyone agrees the government may not intrude in the sacramental role of religious organizations, but what about religious individuals who function in the civil realm? They claim that their religious beliefs against same-sex marriage would prohibit them from performing their non-religious duties, and want protection for that as well - and the way I read the compromise, it would also include protection for these individuals.

This is where the compromise becomes most pointed. Justices of the Peace work for the state, not the church, yet some have refused to issue licenses to same-sex couples because they have religious objections. In the debate, Professor Robin Wilson discussed the dilemma when a same-sex couple faces a civil servant who refuses to perform the civil ceremony prescribed by the state. There are normally other JPs available, and as with some pharmacists who refuse to perform their job of dispensing contraceptives for religious reasons, as long as the customers are served by someone, all needs can be met - though participants on both sides will have been forced to face, for a bit, the other side's arguments and sensitivities.

But it's important to remember that this accommodation is not a constitutional matter. The constitution does not require states to go this far in accommodating individual religious beliefs. That was established in a 1990 Supreme Court decision, Employment Division v. Smith, which upheld a state law that criminalized drug use, and a prosecution of Native Americans who ingested peyote in a religious practice. If the constitution required a general religious exemption from laws that are generally applicable to everyone, the court reasoned, then each religious believer could become a law unto himself, with a personal veto over any legal obligations he determined were offensive.

The opinion was written by Justice Antonin Scalia, an energetic proponent of religious freedom as a constitutional right, but also a man who's savvy to how people can abuse the courts.

If states have to accommodate even individual religious beliefs against gay marriage, we will need to be wary of the same sort of abuse Scalia was concerned with in Smith. But that is no reason not to try.