IGF CultureWatch

The anti-gay right knows how to play the victim card, complaining of bigotry against them at every turn.  And the left knows how to make them feel that way.

It is possible to oppose same-sex marriage without holding homosexuals in disdain, but that’s a very fine line.  David Blankenhorn manages to stick the landing.  His opposition to the North Carolina amendment to ban any relationship rights for same-sex couples is the model of how to oppose marriage equality, yet show some respect for the problem that same-sex couples have under the law.

I, of course, disagree with his opposition to equal marriage rights.  But Blankenhorn has shown what bigotry isn’t.

In the 1980s, Larry Kramer was the best Cassandra a movement – and a nation – could have asked for.  Caustic, relentless and loud, Kramer gave us all a kick in the butt and ACT UP, both badly needed, and both successful beyond anyone’s imagining.

More than a quarter century later, he’s finding it hard to accept victory.  His sour screed at the Huffington Post is unnecessary, overheated and wrong.  In typical Kramer fashion, he overargues his case, but what once was passion now just comes across as melodrama:

During World War II, when Jews were being gassed to death by the trainload, the great Jewish scholar of political theory Hannah Arendt told her people they should form an army to fight back, and that they only had themselves to blame if they didn’t. We had that army for a while. It was called ACT UP. What happened to it?

Well, two things.  First, after its victory, it moved on.  Yes, there still is HIV, and yes, far too many people suffer and die as a result.  But today that is more a function of poverty, ignorance and other social conditions than of homophobia and the pathological need to make gay people invisible.  While one part of the ACT UP forces became more radical, the rest saw they really had made a difference, and tried to actually enjoy the fruits of their labor. The AIDS fight did more than just save the lives of millions, and bring a generation out of the closet, it was the earthquake that uprooted in heterosexuals the refusal to acknowledge gay people even existed.

And because of that, a second thing happened to the army: It enlisted an uncountable number of heterosexuals.  Kramer may have difficulty accepting that fact, since he seems to have blinded himself to the idea that heterosexuals can be not only our allies but also our champions.  But that is the most profound change that has happened since the 1980s.

The problem of a minority in a democracy is that it cannot, by definition, succeed on its own.  It must have allies, either in the political realm or at the very least, in the courts.  And today, we have no shortage of such allies: Ted Olson and David Boies; Meghan and Cindy McCain; Andrew Cuomo and Christine Gregoire; George Clooney and Brad Pitt;  Isaiah Thomas, Antonio Cromartie and Scott Fujita; Supreme Court Justice Anthony Kennedy and Ninth Circuit Judge Stephen Reinhardt. . . . It is utterly impossible to draft a complete list of heterosexuals who not only support us, but have taken public roles in fostering our equality.

But don’t tell that to Kramer:

To those still alive, just know that there’s no one out there fighting for you now. [snip] Why can’t we, once and for all, bond together to fight for our mutual needs? Where are the leaders who can lead us on this journey to our equality?

Kramer’s pessimism seems to come from his view that only gay people should or can fight for their rights:

What does that say about how much the gay population wants to fight for these rights that I speak of? I think we help to kill each other by not fighting together to get these rights, by fighting each other instead, and not fighting against all the hate that’s always out there coming non-stop from our enemies.

Yes, we still have enemies who fire non-stop hate in our direction.  Bully (you might say) for them.  But it’s hard work these days being that grim a pessimist.  With the important exception of schoolchildren, the vast majority of us can ignore the haters (or even love them, depending on your philosophy), and keep convincing the far larger group of waverers.  And in a beautiful exponential progression, each person who changes in our favor changes others.  That progression does not work in the opposite direction.

If I were in a position to give any advice to Kramer, it would be to open his gaze a little, and include heterosexual supporters in his worldview.  The glass isn’t half empty, it’s three-quarters full.

Everyone will read a different moral lesson into the conviction of Dharun Ravi for invading the privacy of Tyler Clementi and intimidating him because Clementi was gay.  Some see the verdicts as the reason we shouldn’t have hate crimes laws, and others view this case as the vindication of those laws.

I have always been divided.  No hate crime can occur unless there is an underlying offense, and those offenses – whether murder, assault or anything else – are already crimes irrespective of who the victim is.  Penalty enhancements because of a motive beyond that to commit the crime itself do raise troubling questions about government intrusion into thoughts, and there are few areas where the government’s machinery is more destructive and menacing than in criminal prosecutions.

On the other hand, the kinds of cases we associate with hate crimes – lynchings and dragging, the grisly and horrifying death of Matthew Shepard – are especially repulsive because they are more than just the crime itself.  They are genuinely hateful.

And that is the problem for me.  Dharun Ravi’s case is void of anything like that.  It trivializes any meaningful notion of “hate.”

Ian Parker’s excellent article lays out the story in the New Yorker, and if it is unrecognizable as the story told by the daily press and television news, that is the point.  It’s been a long time since the mainstream media got the adrenaline rush of a real hate crime against a homosexual like they had with Matthew Shepard.  Clementi’s suicide seemed to have all the right elements, but Parker astutely sticks to the actual facts, rather than just the ones that support the desired spin.

Ravi certainly seems to have been a privileged, arrogant and heedless young man, and there’s little doubt he possessed just enough high school-level ambiguity about gay boys to be pretty uncomfortable when he learned his new college roommate was gay.  His initial reaction on finding out, texted to a friend, was “FUCK MY LIFE; he’s gay.”

Ravi didn’t have the makings of a Meghan McCain style gay rights supporter, but neither does he seem to have what it takes to be a homophobe.  When another friend fretted about how awkward it would be if Clementi made a sexual overture, Ravi replied, “He probs would. Why would it be awk. He’d want me I wouldn’t want him.”  If homophobia has any touchstone at all, it is an exaggerated overreaction to gay sex in general, and any thought of a homosexual advance in particular.  On that score, Ravi is wanting.

Like many boys his age, Ravi seemed more concerned about Clementi’s possible effeminacy than about homosexuality in general, and agreed with a friend who drew the distinction between the apparently feminine, weak and geeky Clementi and a less flamboyant homosexual they had met during orientation.  When Ravi finally actually heard directly from Clementi for the first time, he reported to a friend that Clementi was “gay, but regular gay.”  Not a ringing endorsement of equality, but not exactly the Red Flag of Homophobia.

Ravi’s use of words like “fag” and “fruity” are hardly hallmarks of tolerance, but they fall into a broader context, as does his silly reference to January being a “gay month,” and ultimately his appallingly dumb decision to turn his computer camera on Clementi.  How much of that decision was based on Clementi being gay, and how much on other things about Ravi’s new roommate which were at least as exotic to him?  It seems the only time Ravi actually used the word “hate” about Clementi was in reference to what he thought was Clementi’s poverty.  The privileged Ravi was pretty clear: “Dude, I hate poor people.”  Ravi knew how to use the word “hate,” but even here, there’s more rhetoric than emotion.

The jury did not have to be convinced Ravi hated gays, which is one more reason this case is such a poor exemplar of a hate crime.  It is enough under New Jersey law that the invasion of Clementi’s privacy was intended to intimidate the victim based on sexual orientation.  Ravi was straddling the line between intimidation and embarrassment, neither pleasant for the victim, but with consequences for the perpetrator that make all the difference under the criminal law.

The jury found that Ravi was intimidating Clementi because Clementi was gay, and that finding makes this a case of public interest rather than just another stupid college prank.

But it is being understood as a case about hate, and that is a shame.  If there is any hatred here, it is an anemic and indefinite kind of hate that comes from the decadent and feeble politics of victimization.  And that has left us with two victims, rather than none.

Why is the debate over contraception coverage a women’s issue?  I know a lot of heterosexual men, and my understanding is that they have as much of an interest in controlling whether and when to have children as women do.

Contrary to what you might think, the vast majority of heterosexual American men do not view sex the way Catholic bishops are required to.  So shouldn’t someone be asking men, too, how they feel about whether insurance coverage for contraception is important as a public policy issue?

Steve Miller, Jon Rauch and Dale Carpenter all have solid takes on last week’s Prop. 8 ruling, Perry v. Brown, and all make essentially the same point: The court-ordered path to same-sex marriage runs directly through politics.  Despite what the most starry-eyed activists imagine, no single court decision should recognize nationwide same-sex marriage, at least not in the immediate future — which these days means about a decade.

Like legislatures, courts can move incrementally, which is the primary virtue in Perry.  There is a general rule that appellate courts should decide cases on the narrowest reasoning necessary to resolve the case before them.  While the trial judge swung for the fences, the appellate court found a narrower rationale to decide the case that limits its effect to California.

Limiting the decision is not just a satisfactory result, it is an excellent one as a political matter.  The political climate in California has changed a lot since the spasm of Prop. 8.  Even the feistiest of the Prop. 8 supporters were pretty tepid this time around.  There were no Prop. 8 supporters at the court on the morning of the decision, and the newsies had a tough time even tracking any of them down for quotes.  There has been a lot more work done in the Black and Latino communities in California on same-sex marriage, and Prop. 8’s proponents are struggling, both financially and in their ability to muster public support.  The Mormon church has backed off its anti-marriage tone and is holding the purse strings a bit more tightly on this issue, which would leave the Catholic church, now back to the fight against birth control, on the hook.  I think a California only decision would be well absorbed by the politics out here.

But California isn’t the only state that gets the benefit.  Court decisions may have narrow effects, but the opinions can persuade other courts, and even politicians.  Same-sex marriage will be coming up this year in various contexts: Washington, Maine, New Jersey, North Carolina, Illinois, Maryland and others look like they will be on the 2012 front lines.  Each iteration of this debate, even in the places where we lose, leaves a few more of our opponents winded and adds a lot more supporters to our side.

Those political debates happen in the same culture judges and lawyers live in, and give attorneys and the courts time to think about the constitutional issues in different and more nuanced ways.

That brings me back to Dale Carpenter, who offers an original spin on the notion of what counts as a rational basis for a law that is purely symbolic, as Prop. 8 was.  His piece is well worth reading, and moves the discussion forward in a sound but unexpected way.

Every enhancement to the debate changes the politics a little, and that helps the courts see more ways to resolve issues that are less disruptive than grand pronouncements and overarching rules.

We will get to equality, eventually.  But we won’t get there in a straight line, or all at once.  Every resolution brings us back to politics, one way or the other.

Stephen Miller makes a good enough point, as far as it goes.  But it doesn’t go very far.

He’s one of the last people I’d expect to use squishy liberal rhetoric, but there’s just no kinder way to describe that “free.”  Only Pelosi-philes really think that insurance benefits are free just because you don’t pay for them at the point of service.  Insurance is a product, and people buy it.  The question is what and how much you’re paying for.

And that gets me to the main point.  Steve is willing to accept the church’s position that any corporate structure they choose to devise is religion if they say so.

The government not only has no business interfering with the exercise of religion, I think that’s one of the most consequential and revolutionary aspects of our constitution.  And that fully includes religious discrimination against lesbians and gay men.

But is the government required to be a sap about it?  Like all other bureaucratic organizations, churches have been known to abuse power and privilege — and laws.  And that is nowhere more true than when it comes to rules about sex.  Catholics are free to accept their church leadership’s hypocrisy and cluelessness about sexual matters.  But when the church selectively wishes to exempt itself from some laws (about contraception, say) while following others (about tax advantages) in its business operations in the private — not religious — sector, then I think it’s fair to question their lawfulness, and even their seriousness.

Their non-Catholic employees need health insurance as much as anyone else does.  And those insurance policies are government regulated, whether any of us around here like it or not.  Within the limits of its authority over actual believers, the church is free to be as extravagant in its hypocrisy as it wishes.  But when it operates a business that is not limited to believers (and doesn’t even pretend to be), something different is at stake — the rule of law.  This is a case where the Catholic hierarchy is simply using its power over its own believers (which they freely ignore) to make life more complicated for non-believers who work for them.  And that is not any matter of conscience, it is a matter of naked power.

If any significant number of believing Catholics actually followed the church’s rules against contraception, this would be a somewhat harder case, I suppose.  But it would still come down to the fact that the church has chosen to establish a secular corporation in the private sector to provide an inarguably valuable public good.  Having chosen to do so, it is not free to pick and choose the laws that apply to it based on some flexible corporate notion of “conscience.”  If churches have the power to make even non-believers subject to their rules, in ways that are entirely convenient to the church, then we have recreated the problem of religious establishment under an infinitely expandable version of religious exercise.

That cannot be right.  It certainly isn’t what any of the founders would have imagined.   This is not just the religious exemption that Steve has in mind.  Church rules are appropriate for believers of that religion.  But there is and should be no constitutional right for religions to bully nonbelievers.  That principle is at the heart of this nation’s DNA, and it looks like the bishops want us to live through that battle again.

Whose rights, exactly, is the Catholic Church asserting in challenging the Obama administration on contraception?  It certainly isn’t the rights of Catholic women, and it’s hard to see who else’s rights the bishops are invoking — except their own.

The church is up in arms that the administration is requiring insurance plans to include contraception coverage.  The rule has a conscience clause that protects the free exercise of religious organizations, but the church complains there isn’t a similar exemption for organizations associated with religions whose employees do not need to be religious adherents.  The U.S. Conference of Catholic Bishops is apoplectic, threatening to use every means at its disposal to stop what they argue is a trashing of their beliefs.

The Catholic Church has long been at odds with its own members on same-sex marriage, where one poll showed 71% of Catholics believe civil same-sex marriage should be allowed.  But that is nothing compared to the complete divide between church hierarchy and its members when it comes to contraception.  Ninety-eight percent of Catholic women defy the church’s ban on “artificial” contraception, which is within the margin of error of complete disobedience.

And that’s not Catholics who just hold a belief, as they do with same-sex marriage.  That is Catholics who actually use birth control.

So the bishops, who do not need contraception, are demanding a rule for their non-religious employees that even their religious employees don’t seem to particularly want.

I believe in the importance of conscience clauses, as does Jon Rauch.  I even think there is some value in using them to appease unreasonable fanatics if it will achieve some significant political goal.

Here, there is nothing at stake but the power of the bishops to demand in the civil world a rule they cannot enforce in their own domain.