Author Archives: David Link

Pro-Choice

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After more than fifty years of the formal struggle for equality, we are at a stage where we can exercise some of the privileges of success.  One of those is a more open discussion about homosexuality as a choice.

Cynthia Nixon, who had a 15-year relationship with a man, is now engaged to a woman.  She rejects being categorized as bisexual.  Frank Bruni takes advantage of that to explore some of the biological terra incognita of sexual orientation.

This has long been a touchy subject because homosexual activity has historically been viewed as illness, sin and crime.  The first is objectionable (at best) because it deprives us entirely of the ability to be perceived as healthy human beings.  The last two are both reasonably described as voluntary (unless you’re on the very far left, which few around this site are), but amount to the “choice” of activities that are inherently wrong.   Those of us who are homosexual don’t view love, affection, or even consensual sex as wrong, so this view of choice is unacceptable, and at the very heart of the argument we have been making to be treated equally under the law.

Bruni argues that sexual orientation can be viewed as another sort of choice, the constitutionally protected ones of religion and gun ownership.  Neither possesses any biological prerequisite; they are both freely chosen and fully recognized parts of American citizenship.

Bruni uses a well crafted phrase to capture the decision point more appropriately: “the right to love whom you’re moved to love.”

This is something heterosexuals have always understood for themselves.  Long before the sexual revolution in the 1960s, young people rebelled against parental choices and even preferences about their marriage partners.  Not all of those children were able to act on their choices, but they certainly had them.  They needed no help, and were subject to no steering in recognizing whom they were moved to love.

Some of us know for a fact that that private, purely internal movement is only toward members of our own sex.  That is as resistant to change as was Romeo’s love for his Juliet.  Heterosexual adults, too, like Edward VIII and Wallis Simpson, know about the imperatives of the heart.

It is true that those four heterosexuals had a choice about whether to act on their love.  Romeo was quite the dog in Verona; Juliet knew the parentally sanctioned Paris was ready to go; Mrs. Simpson had already made a marriage choice (two, actually); and no one can plausibly claim that the King of England would have lacked other options.

But the conversation changes and narrows dramatically when it turns to homosexuality.  People mean something very different and much smaller when they talk about whether homosexuality is a choice.  They’re not talking about whom, in particular, we are moved to love; they are talking only about the gender of people we are moved to love.

That is the discussion we have had for a couple of generations now.  Bruni helps move the debate forward, and that is worth taking advantage of.  We are not likely ever to understand the origins of something as complicated, — as human — as the impulse toward love.  It’s time lesbians and gay men (and bisexuals, too) stopped being required to answer that unanswerable question in order to obtain equality.

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Not going away

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The National Organization for Marriage is complaining that lesbians and gay men in Maine have qualified an initiative to make same-sex marriage legal there.  Their concern is that we, ourselves, say civil rights shouldn’t be voted on.  What hypocrites we are!

But Maine’s legislature passed a same-sex marriage bill in 2009, and NOM and its allies pushed for an ultimately successful referendum to have the law annulled.  If they’re willing to go to the people to deny us our rights, why wouldn’t we carry the fight to the same battle ground?

So yes, civil rights shouldn’t be put to a vote, but if that’s the only option we have, then that’s the one we’ll exercise.  Voters are allowed to change their minds, and it sounds like Maine’s voters are doing just that.  NOM may want us to ignore that, but we’re not going away.

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Allies on the campaign trail

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The most interesting thing about Rick Santorum’s responses to questions about gay marriage in New Hampshire may be the fact that they are, in fact, responses.  This is not a subject he brings up on his own — at least not in public forums where he doesn’t have control of the audience.

But in New Hampshire, members of the audience bring the subject up.  More important still, the subject doesn’t just get brought up by lesbians and gay men or their families.  At a high school,

The audience, half students and half local residents, reacted with snorts and applause. The students at Dublin School, which runs from ninth through 12th grade, were primed for Santorum’s visit, said headmaster Brad Bates. He said three students in the audience had gay parents, though they were not among those who asked about the topic.

Those of us old enough to remember back to the 20th Century know how hard it was for us to get gay equality mentioned in public discussions.  While the GOP still has a large contingent of those who’d rather talk about something — anything — else, that’s a luxury these days, at least on the campaign trail in places like New Hampshire.

And you can see why they’re uncomfortable.  Santorum digs in his heels, when asked about equal rights for gays to marry, and insists the subject is polygamy.  To be fair, the questioner frames the subject as the right to happiness, which allows Santorum the easiest way to get to polygamy.

In fact, though, the question is about equality — an explicit constitutional right, not something ephemeral or trivial.  And it looks to me like the audience’s dissatisfaction with Santorum’s obstinacy is based on the fact that that is the way they are viewing the question.

Santorum really doesn’t see this as being about equality for lesbians and gay men.  He believes that marriage is a privilege that government can provide selectively, rather than a right that it is obligated to confer equally.

But that view is no longer unchallenged.  That is what seems to be so frustrating for him.  He expects the references to polygamy to end the argument for everyone else, they way they end it for him.  But he is hearing a different question — about happiness and privileges –than he is being asked.  Polygamy is a different subject, as Jon Rauch has long argued.  It is about the right to marry anyone.  What lesbians and gay men are asking for, and what we have been successful in getting a majority of Americans to understand, is that we just want the right to marry someone.

That is the way these New Hampshire audiences, who are, after all, looking for a Republican to vote for, see the issue.  And I expect there will be more audiences with a similar view of the question in the candidates’ futures.

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Give a little bit. . .

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The Catholic Church is complaining again about how unfairly government treats them when all they want to do is discriminate against homosexuals, like their Lord Jesus Christ orders them to.  The fight comes up in Illinois, where Catholic Charities, which has a government contract to provide adoption services wants free rein to deny same-sex couples the ability to adopt.

Frankly, I don’t mind that much if the church openly discriminates.  I left them long ago, over issues just like this, and I can see an upside to the church continuing to drive decent people from its ranks.  And from the purely legal perspective, it’s true that while no one has a constitutional right to obtain government contracts, religions do have a constitutional right not to be disadvantaged when they exercise their religion.

It’s a harder question than the bishops claim whether providing adoption services under a government contract is “the exercise of religion” as envisioned in the first amendment; but the law is fairly clear that government should make reasonable accommodations to religions if at all possible.  And I think it’s possible here to accommodate a religion that is so firmly staking out discrimination against homosexuals as a core tenet of its belief system.

But I think it’s also fair to point out that maybe there’s a little the church could give on, too.  The law in Illinois that is the thorn in the bishops’ side does not legalize same-sex marriage.  It provides for a lesser, but equal-ish civil union for same-sex couples.

I don’t believe I’ve seen the bishops, or the Vatican, take the firm position that in order to “protect” heterosexual marriage, government cannot tolerate any formal recognition of same-sex couples, and that any law providing that recognition is the same as legalizing marriage.  The church’s position in Illinois, though, requires something very close to that — a firm theological belief that all same-sex couples should be disabled from adopting children because they cannot possibly provide children an acceptable family structure.   The issue is not marriage, it is same-sex couples adopting, specifically, but being acknowledge by the government in general.

From what I’ve seen of the current Catholic church, I think this is pretty much what they do want to say, but until they are courageous enough to admit it, I think they’re being a little disingenuous in treating a law that is distinctly not a same-sex marriage law as if it is identical for God’s purposes.

Even the most adamant Catholics I know don’t think it’s a big deal to accept same-sex couples under some rubric or other, even if they’re not yet ready to accept full marriage equality.  They are willing to give a little bit.  In this, they differ from their leaders quite dramatically

The church always demands that government make accommodations to its beliefs, but is there nothing here the church can give on as well?  Is the church’s notion of fairness only a one-way street?

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“We’re not talking about discrimination…”

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This clip from the last Iowa debate is a good landmark to locate where gay rights are today and where the GOP is in that cell of the country’s public policy matrix.

Mitt Romney is struggling to be a moderate in his party that finds moderation abhorrent. Rick Santorum is proud of his immoderation in general, and his intemperance on gay marriage in particular. He finds Romney squishy, and Chris Wallace uses his privilege as debate questioner to make Romney squirm on Santorum’s behalf.

Squirm he does. Romney says he is “firmly in support of people not being discriminated against based upon their sexual orientation.” But without pause or turn signal, he continues: “At the same time, I oppose same-sex marriage. That has been my position from the beginning.”

Romney’s dilemma is that he really has supported gay equality, and may still. He invokes a member of his Massachusetts administration’s cabinet who was gay, to buttress his fair mindedness. But he distinguishes gay equality from same-sex marriage. That’s not a matter of equality, it’s . . . well, something else.

Santorum doesn’t have that nuance to worry about. While he, too claims not to discriminate based on sexual orientation, he isn’t weighed down in the debates by a need to appeal to voters who worry much about the gays.

Clearly, there was a time – and to many Americans we’re still in it – when to say you were both for gay equality and against same-sex marriage were consistent, or at least could coexist without much cognitive dissonance. Lesbians and gay men deserve to be treated the same as everyone else, they just can’t get married to one another. However, they can marry someone who’s of the opposite sex.

The inherent contradiction in those thoughts is now apparent to a large and growing number of Americans. How on earth is it equal that homosexuals should have all the rights of heterosexuals except the one that goes to the core of actually being homosexual – the right to marry someone you love who, because you are homosexual, will be the same sex as you?

Romney is caught in that contradiction, and that is his tragedy this year. Equality under the law is not divisible in this way, and the dwindling number of people who insist on the rhetoric of equality without the substance look more and more preposterous with each passing year.  As a party, the Democrats have finally accepted this cultural change, and few of their candidates will be dogged by it.

Santorum’s tragedy is longer-term and more lasting. He has thrown himself in with the crowd that doesn’t mind contradicting itself openly and proudly – so much so that they have worked hard and frozen into place, in state constitutions, second-class status for same-sex couples, a status they refuse to view as unequal. They got in right under the wire on that, but no one can freeze politics in place. The GOP will continue to have Santorums, but it shouldn’t be surprising, by the time 2016 rolls around, to see them doing the squirming over what it means to have equal rights.

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Power (I’m Afraid) to the People

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Leaders in the gay rights movement do us all a disservice — gay and straight alike — when they stir up passions over non-issues.  Yesterday’s argument in California’s Supreme Court over standing in the Prop. 8 case is the latest example of whipping people into a needless frenzy that will ultimately feed cynicism.

The case was not about any gay rights issue.  In the course of the proceedings over appealing the district court’s decision overturning Prop. 8, a fascinating and unique issue arose about whether the proponents of an initiative have standing in federal court to appeal it.  This question came up because neither the Governor nor the state Attorney General chose to appeal, leaving the proponents as the only ones willing to carry the burden.  However, under federal court rules, parties must have proper standing to bring the case to the court of appeal.  The federal courts have very limited jurisdiction over cases, unlike state courts.

Normally, some part of a state’s government will defend a citizen-initiated law if necessary.  But both the Governor and the Attorney General felt the court got it right, and declined.  The proponents, therefore, stepped in.  However, some cases have said initiative proponents don’t have standing in the federal courts.  But no case dealt with the issue here, where there is no one to defend an initiative except the proponents.

There is a far more at stake in this case than just gay equality.  In California, the courts have consistently ruled that the legislature — and the executive and the judiciary — have only derivative powers.  Those powers do not come from God, but from the people, who are the ultimate source of all government.  The Prop. 8 appeal brings that into the spotlight.  If the government will not defend a law passed by the people using their superior legislative power, and the proponents of that law cannot, themselves, defend it, then, in fact, the government is superior to the people, and can veto their efforts.

It is, of course, convenient for those of us who believe strongly in equality, to have the appeal die for want of a champion.  That is what made Ted Olson’s life so hard yesterday, as the justices hammered him about his theory.  Olson  is nothing less than a superstar, and watching him defend what is ultimately an indefensible position was a marvel.  We cannot be grateful enough to have him on our side.

There are certainly some significant legal questions around the edges of what he was proposing, and it was a joy watching him try to tempt the judges with those.  But Justice Carol Corrigan called him out for “nibbling” at these distractions.  The real issue in this case is whether the government can nullify a vote of the people by denying them a voice in the federal courts.  If this is a gay issue, it means that gay rights requires placing our complete and total trust in the government, now and forever.  We’re fortunate in this case that our interests are aligned with those of California’s current politicians.  I’m very skeptical about this as a permanent rule, though.

I have no doubt at all that Prop. 8 is a violation of the federal constitution, and that the district court’s ruling will finally be upheld.  But the easy win will come at too great a cost.  The corruption and overreach in California’s legislature in 1911 that led to the initiative is never far from my mind.  Even when I agree with the political branches on the merits, as I do here, I think it is too dangerous to aggrandize the government at the expense of the people’s ultimate authority over government.  While I think the majority vote was invalid under the federal constitution, I’d rather give that majority its voice in the courts now, and maintain for the future the ability to control the state government if that ever becomes necessary again.

And when “we” ultimately lose this case (I will not be surprised to see a 7-0 vote in favor of the proponents), I hope the anger is not directed at the courts.  That is the risk of the fund-raising tactics that drive these non-issues — that the anger and fear our leaders are stirring up will be misdirected.  The Prop. 8 case, itself, is our issue as lesbians and gay men.  The standing case is our issue only to the extent we are citizens who have an interest in how much power we have granted to our government.

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Unprogressive

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I am as happy about New York’s marriage equality as anyone.  But as with so many other things, the headlines are disproportionate to New York’s actual contribution.  As with the Stonewall uprising, New York is more fortunate in having a large media megaphone than in having any national leadership role.  This is certainly not a bad thing, since attention to goings-on in New York helps to validate the work so many people across the country have been doing.  But New York is like Microsoft: It’s very good at taking (and being given) credit for the original ideas and labor of others.

And there is a very deep irony in this victory.  Governor Andrew Cuomo cannot receive enough credit for taking the lead in making this happen.  After years of feints and dodges by New York’s unfathomable legislature, Cuomo showed what political leadership looks like.

But in his statement after the vote, Cuomo said:

“This state, when it’s at its finest, is a beacon of social justice. . . .  [T]he legacy is that we are the progressive capital of this nation. . . . the other states look to New York for the progressive direction.”

But it is exactly because New York did not adopt key elements of the progressive era that this law cannot be challenged.  The referendum and initiative, in particular, were landmark progressive reforms, first adopted by Oregon voters in 1902 and then by California in 1911 at the urging of Governor Hiram Johnson.  The referendum allows people to vote directly to keep or abandon any legislation signed by the governor, and the initiative gives voters the power to pass laws directly.

The fact that New York has never adopted either of these iconic progressive reforms is what drives the National Organization for Marriage apoplectic.  Their window for appealing to the ebbing popular prejudice against lesbians and gay men is closing rapidly, and they still have a few states where they haven’t yet been able to leverage that to amend state constitutions and cement the status quo in place.

I can’t say I feel sorry for NOM.  But if I were Governor Cuomo, I’d be a little less cocky about how progressive my state is.

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Pride and Prejudice

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I have never seen anything quite like the Minnesota House debate over the proposal to amend their state constitution to ban same-sex marriage.  The amendment passed last night, 70-62.

In the first place, I’ve seen a lot of legislative debates on this subject, and five and a quarter hours is a lot of talking on a single subject.  I don’t think California has ever broken the three-hour mark on same-sex marriage, and that was years ago.

But the length of the discussion wasn’t what made it so remarkable.  While Joe Jervis says, “The vote came after impassioned debate by legislators on both sides,” in fact there was no debate at all.  Every member who spoke opposed the amendment – and did I mention that went on for over five hours?

The only voice in support was the amendment’s author, Rep. Steve Gottwalt, who had no backup from anyone in his party.  And even he never weighed in on why it might be good to amend the constitution to prohibit same-sex couples from marrying.  His argument was about the virtue of legislative abdication.  This shouldn’t be our decision, it belongs to the voters.  In his cameo speaking role, he kept repeating that his opinion on same-sex couples, were he to have one, would be irrelevant to his authoring of the amendment.  The proposal wasn’t about same-sex couples or opposite-sex couples, or, really much of anything at all.  He never budged from this non-position, and then went into radio silence, along with every pro-amendment Republican in the body.  One other Republican, Rod Hamilton, did share how deeply he had struggled with his vote, but that was the extent of it.  He, too, offered no argument in favor of the constitutional amendment.

In contrast, John Kriesel, a Republican Iraq war vet, was truly impassioned in his opposition.  He spoke about the American values he fought for, and explained that the amendment was exactly the opposite of what he understood our principles to be.  Rather than Gottwalt’s dodges, or the silence of the rest of his party, Kriesel was eloquent and manifest about his vote: “I’m proud of this.  It’s the right thing to do,” he said.

Three other Republicans and all but two of the Democrats could say the same thing.  So what about those 68 other non-voices, that majority in favor of – nothing?  This is what the public discussion of gay equality has come to on the right, a combination of cowardice and embarrassment.  Again, in decades of paying very close attention to legislatures, I have never seen such a stone wall (you should pardon the expression).  In the past, opponents have always had something to say.  They don’t any more.

That is a testament to the merits of their position.  They are willing to let NOM’s commercials do their talking for them, since even they know it isn’t seemly for elected officials to so openly appeal to the vestiges of prejudice.  Far from having arguments they can take pride in, they want to say as little as possible, knowing that history will judge them badly and hoping to minimize the damage.  That seemed to be Gottwalt’s strategy.  He knew, going in, that the other side had the better of it, and the best he could do was avoid owning up to the position he’d wound up having to champion.

Alone.

So now it will be up to the voters of Minnesota.  How much of the GOP’s prejudice will they be willing to adopt as so supremely important that it is worthy of being placed in their state’s constitution?

The rules for passing a constitutional amendment in Minnesota are tougher than some other states, and that is an important fact.  It must be passed with a majority of all votes cast in the 2012 general election, not just those cast on the amendment, itself.  The increasing support for equality across the nation will also play a role.

But there is one other factor.  Minnesota Governor Mark Dayton has said he would fight the amendment with “every fiber of my being.”  That kind of public leadership from the state’s governor can make a difference.  California’s former governor once made a similar promise on Prop. 8; but like other promises he’d made, it wasn’t one he meant.  He spoke not one public word against the amendment, and only offered a tepid statement for use by the opposition.  I urge Minnesotans to do what California could not, hold their Governor to his word.

The rallying cry for this election should belong to Rep. Kriesel, though.  Looking down at his desk, and then up to his fellow representatives, he said, “If there was a Hell No button, I’d press that.”

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A Little More Hardball

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In light of Jon Rauch’s post on the Gallup Poll, I’d like to revisit something we’ve been debating.  I think the issue can fairly be described as the tone of the more unrestrained voices on our side.

Jon has been concerned that the rhetoric of hate “plays into the other side’s hands.”   Maggie Gallagher has been whipping this horse for all its worth, trying to paint herself as the victim of hateful gays.  With the able assistance of California’s Frank Schubert, she has pulled off a couple of miraculous electoral victories.  Jon doesn’t want us to provide any more fuel to that fire.

In light of that, we shouldn’t overread the Gallup results.  We know that in any particular state at any particular time there is a cushion of residual prejudice marriage opponents can take comfort in.  The older voters who grew up ignorant of homosexuality still vote in far greater numbers than the younger voters who are the staunchest supporters of equality.  There is still a gap between the polling numbers and the polling places.

But as Jon notes, support in the Gallup poll has increased at a stunning pace, and Gallup isn’t alone.

This has happened despite the right’s drumbeat cries of victimization.  Why?

I think it’s because the plea was always so implausible and rickety, and it isn’t getting any sturdier.  Within the ephemeral media, each true anecdote can breathe for a day or two, and then wisps away.  In the non-mediated world where real people live, the notion that it is our opponents who are suffering is losing what tenuous hold it ever had.  We’re gaining supporters because we are the ones who have something real to endure, and that is no longer escaping peoples’ notice.  More and more Americans see our frustration and anger as justified, and while that isn’t a reason to encourage hatefulness, it can make some level of outrage comprehensible.

That was highlighted yesterday in the Minnesota House, where homophobic preacher-manque Bradlee Dean was invited to offer the opening prayer at a session where the anti-gay constitutional amendment was expected to come up.  Dean took advantage of the opportunity to make a crass political speech that only tangentially invoked “Father God.”  The speech, itself, was not explicitly anti-gay (though Dean did find time to insult the President), but it was so wildly inappropriate that the Speaker was effectively forced to cancel the prayer and re-start the session with a whole new preacher.  I’ve seen a lot of things in legislatures in my time, but this is the first time I’ve seen the need to void the preceding prayer and start over.

There would be few reasons to invite Dean to the Legislature at this moment (he’d never been at that podium before) except for his anti-gay views — a Republican poke in the eye to the Democrats, who are trying to fend off an unnecessary anti-gay amendment to the state constitution.  Dean’s transgression of the normal etiquette was severe enough that the amendment might now be in some trouble.  Needless to say, no one in the Minnesota leadership will own up to having invited Dean.

That is where anti-gay prejudice is now – orphaned, but alive.  Anti-gay Republicans know what Maggie Gallagher knows: Americans are having a harder time with each passing year tolerating this particular brand of intolerance.  She has to struggle every day to make us out as the bad guys when, after all, we are the ones who can’t get married.  Bradlee Dean, Fred Phelps, Bryan Fischer, Bill Donohue – Americans will tolerate these firebrands, but take no pride in associating with them, or the snide insults they trade in.  These are the men who demonstrate that our anger is sometimes justified, and make our equality more legitimate.  I can’t answer for anyone else’s extreme language, but when these are the characters you have to respond to, it’s a little less shocking to people when you become a bit intemperate.

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Less Than Rights

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Jim Burroway makes a very good point at Box Turtle Bulletin, as “the race to water down Rhode Island’s civil union bill” begins.

Marriage is the only non-negotiable relationship the law recognizes.  Anything less leads to bargaining.

That’s one of the key ways you can tell the difference between a right and things like privileges, desires and the lesser forms of contract the law recognizes.

This seems to be a good point to make to heterosexuals.  They have the luxury of  not having to go to their elected officials (or fellow voters!) to wheel and deal over how the law will respect their marriage.  For lesbians and gay men, I suppose, it’s better to be in a position where we have something to bargain over, rather than having no recognition at all.  That’s progress, but it’s certainly not anything straight people should envy us for.

And, of course, I have to make the obvious point that Jim misses, about California.  We don’t have civil unions here, we have domestic partnerships.  Neither our marriages nor our DPs would get any recognition in Rhode Island at all.  Perhaps they could add in a provision about “domestic partnerships” as well as calling out civil unions.  But, of course, they’d then also have to put a provision on the list for any future state that chooses, in the legislative back-and-forth, to implement some other name.  Yet that’s what they tried to do with the phrase, “substantially similar legal relationship,” and they had to edit that out because marriage is substantially similar, and the whole point is to sidestep that little issue.

This is what it looks like to aspire to equality — vying in the bazaar of the legislative process for whatever you can get.  There are lots of things that are worth this tremendous, muddy, divisive fight.  But heterosexuals should pause, every now and then, to appreciate how nice it is not to have to engage in this battle.

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