IGF CultureWatch

I think Stephen Miller might be letting partisanship eclipse his more characteristic common sense, similar to the way the partisanship of Nicholas Confessore and Michael Barbaro short circuits their ability to put together a reasonable thought for their article in the NYTimes.  (And I apologize to Stephen for the unkind comparison, but friends don’t let friends rely too uncritically on the NYT).  Any focus on liberals or Democrats misses the most important point of this story.

The heart of the problem for both Stephen and the NYT is the glaring use of the word “unexpected” in the article’s lede:

As gay rights advocates intensify their campaign to legalize same-sex marriage in New York, the bulk of their money is coming from an unexpected source: a group of conservative financiers and wealthy donors to the Republican Party, most of whom are known for bankrolling right-leaning candidates and causes.

In New York’s incestuous thinking, it probably is unexpected that conservative financiers would want to spend money supporting same-sex marriage.  That, after all, comes right out of the dominant theology of the left – that donors to the Republican party actually want what the religious right says they ought to want.

But while the religious right and those wealthy donors share a party, they do not share an ideology, or much of anything else.  Responsible, thoughtful and strategic members of the national GOP have a long-term interest in ridding the party of the toxic influence that Ronald Reagan first brought in, the first George Bush tolerated, and the second Bush encouraged in the most cynical and malignant way.  John McCain was the most recent, high profile victim of this political perversion, but he will not be the last.  And there are a lot of people who want out of this dead-end.

It will be no easy task to deliver the GOP from this brand of political illiterates.  They cannot be expelled from the party just as cancer can’t be expelled from the body.  The treatment will be long and painful.  Fortunately, there is no shortage of political donors who have no interest in killing their party, but want to be rid of these troublesome priests.

Same-sex marriage in a state like New York is one of the openings they have to help break the ice.  They need to enable moderate members of their party to dislodge themselves from the stigma of religious fundamentalism, so they can focus on the economic issues that are paramount for their party and for the nation.  More important, they need to send that message to voters.  After a decade and a half of ODing on the crack of homophobia, the GOP has found itself with the reputation for treating fiscal issues with the same casual political cynicism that they have had to feign on marriage and other culture war skirmishes.

No one who takes real politics seriously – the kind that actual, savvy, politicians of good will practice every day out of the tawdry spotlights of the political press – would or should be surprised by this move.  It shows no more than that “conservative financiers and wealthy donors to the Republican Party” (as the NYT would have it) possess the normal level of self-interest that can be expected from any political faction, and that sometimes that self-interest has beneficial effects on the body politic.

I hope people aren’t missing the point of Uganda’s Anti-Homosexuality Bill, which is back before that country’s Parliament.  The debate in America has focused on the bill’s death penalty provision, which is, by any measure, a horrifying use of naked governmental power in the 21st Century.

But does that  imply that replacing death with some lesser punishment would make the bill better?  I’m afraid this report from the indispensable Jim Burroway, leaves that impression.

It is not the death penalty that makes this bill intolerable.  It is the bill’s entire premise.  Its title is “The Anti-Homosexuality Bill.”  Its purpose is to use the force of government to prohibit “. . . any form of sexual relations between persons of the same sex; and [ ] the promotion or recognition of such sexual relations in public institutions and other places.”

Whatever your thoughts about the proper role of government, this aggressive, punitive and ignorant bill is a corruption and an abuse.  Even with no death penalty, the bill sends the same message: lesbians and gay men are not only anathema, they must be removed from the body politic.  They are not to be tolerated.

We shouldn’t let the presence of the death penalty in the bill blind us to that far more important fact.  Otherwise, our arguments against the bill could turn against us, and we could wind up with an amended version intended to satisfy our expressed concern.  There is no version of this bill that is acceptable.

Jonathan Rauch makes as good a case as there is for minding our Ps and Qs in the political battle over marriage equality, but I’m just not buying it.

In the first place, lesbians and gay men aren’t a military operation, and there’s no one to enforce the kind of discipline that would be required for us to maintain the virtually unified face his concern would require.  How would any group in a country like this be able to “be cautious” about giving any appearance?  I’ve long been in Jon’s camp about political moderation and conservative goal setting.  But if there’s any way for us, or anyone, to moderate the millions of individuals who don’t share our philosophy, I’ve certainly never found it.  I listen to Jon pretty carefully, but I doubt Tony Kushner does.

That goes to the heart of the problem with Jon’s argument.  Maggie Gallagher, Bryan Fischer, Bill Donohue and others who oppose marriage equality are fully committed to this last, substanceless defense of their discriminatory dream: “We’re The Victims Now.”  No one who’s actually gay has to do anything for them to find the “appearance” of homosexual bullying.  I’m quite certain no one at the 125 year old law firm of King & Spalding, 800 lawyers strong, and representing clients from Bank of America to Walmart, had anything like a gun held to their head by a Sister of Perpetual Indulgence, or wound up bloodied and bruised on the (I’d guess) marble floor of a partner’s suite.

In this context, the appearance of bullying comes merely from succeeding.  Maggie and her friends know this as well as HRC and Georgia Equality do.  Does anyone think HRC wouldn’t have claimed this victory if they’d done virtually nothing substantive – which may not be an inaccurate view?  Whether the claim is victory or super-uncool-meanness, it can be based on nothing more than an end result if the party is savvy enough.  There will always be details for the spin.

The bar for bullying is now awfully low, partly because we set it there.  When we’re talking about children, particularly in school, it’s probably not unfair to see bullying as intimidation that falls short of physical violence.  Kids can have a natural streak of cruelty, particularly about sexual orientation, and if that is left unchecked in a school setting, it can become a serious threat to the educational mission.

But while there are good reasons for setting a low bar in school, when you’re talking about adults in the commercial world, it’s harder to draw the line between bullying and hardball.  I’d say we’re even having a hard time drawing a line between bullying and softball, or badminton.  With all due respect, what Jon is proposing for us could have come right out of the left’s playbook for Lifted Pinky, Ever-So Respectful Political Discourse.  It is the artificially heightened sensibilities of Ms. Gallagher that have brought Jon to this point, I think, and while I can’t argue that she has had success with her stratagem, she’ll find her material no matter what.

I’m satisfied to cast my lot with the hardball players on our team.  Not the hood ornaments at HRC, but the business leaders who know what the hell they’re doing.  They have the most practical, material interest in knowing where the culture is, and in their judgment, opposing marriage equality has more downside than upside.  As with all judgments, there are those who differ, and good for them.  That’s what makes a market.

Hardball is unavoidable in adult interactions where a great deal is on the line.  Should we give it up when it’s quite clear our opponents won’t, as Virginia’s Attorney General has now demonstrated?  I think that’s the bottom line to Jon’s formulation of avoiding even the appearance of bullying.  Any time we win, our opponents will be able to spin us as bullies.  To ungracious losers, winners always give that appearance.

It’s hard to react to the new “Don’t Say Gay” bill in Tennessee with the bemusement it deserves.  SB 49 would prohibit Tennessee teachers in grades K-8 from mentioning homosexuality in the classroom.  It’s natural to find this bill stupid, harmful to students who may be homosexual, bigoted, mean-spirited, misdirected, ill-informed, dimwitted, irrational, shortsighted, irresponsible or just plain preposterous.

There are very few of us who would want elementary and middle-school children to have a sexual education imposed on them prematurely.  And if this were what the bill accomplished, it might be justified.

But that’s not what the bill does.  Instead, the legislation says, “No public elementary or middle school shall provide any instruction or material that discusses sexual orientation other than heterosexuality.”  It acknowledges the fundamental fact that sexual orientation is part of the human matrix, and allows instruction and school materials to include sexual orientation – how could it not?

But only if that sexual orientation is the state-approved one.  The bill provides that students in Tennessee can be explicitly exposed to the sexual orientation the state has adopted as its official policy – heterosexuality – and that they should be protected from any official hint that there is another sexual orientation the state does not endorse – homosexuality.

Unsurprisingly, California’s legislature has a somewhat different idea.  That state’s SB 48 would prohibit California school materials from “reflecting adversely” on lesbians and gay men, adding sexual orientation to an already established list of other factors such as race, gender and national origin.

The California bill may go too far in the opposite direction. Those of us who have worked long enough in the gay rights arena know that there are times when some of our own actions and leaders reflect pretty adversely on us.  It’s taken a long time for educators and policymakers to clean up the cleaned-up pseudo-history that used to be taught in our schools, and students are better for knowing that mistakes, flawed heroes, ideological zeal and terrible miscalculations are all part of the human story.  It would be a shame for us to back off from that candor.

But Tennessee’s SB 49 shows why California thinks it needs SB 48.  History, itself, has done its best to render lesbians and gay men invisible.  SB 49 only does explicitly what has always been implicit:  It makes the lie official.  SB 49 says that California won’t tolerate that lie any more.

I want to be bemused by Tennessee’s foolish notion, because I know that its children will inevitably gain awareness of the lively, active and open lesbians and gay men in their state and around the country and the world no matter what their state’s lawmakers wish.  Like the Chinese government, Tennessee’s deluded leaders want to control a truth that is ultimately indifferent to their autocratic mirage.

But these official lies do cause harm.  They reinforce the superiority of heterosexuality to homosexuality, and embolden the adolescent impulse to demean.  As an adult, I have the luxury and security to be bemused by the deranged grown-ups who have acquired the ability to misuse government.  But there will be children in Tennessee who won’t be so lucky, and will have to grow through the same lies that generations of us had to survive.  It’s easier to do that now, but it’s so unnecessary, and such a pigheaded use of the power of government.

I agree with Stephen Miller that’s it’s fine for HRC to go all nuclear about the House defending DOMA (or, as we’ve tried to clarify before on this site, Section 3 of DOMA, and only Section 3).  Fish gotta swim, gay rights groups gotta complain about people who disagree with them.  It’s the order of nature.

I’m not sure what HRC would have had Speaker Boehner do, though.  If the Justice Department won’t defend the law, and at least one house of Congress still thinks it’s worth defending, why shouldn’t they exercise the political prerogative of the majority and pick up this sad, tattered banner?  It seems clear to me Boehner would much rather be doing something else, but even our worst criminals are entitled to a decent defense, and there’s a firm out there willing to provide it, and get compensated.  Frankly, I just hope they know what they’re in for.  That brief is going to have to walk across the tightrope Boehner, himself, keeps wobbling on, pulled taut from one end by the now pretty openly anti-gay end of the GOP spectrum, and from the other side, tugged by the responsible GOP wing that wants their party back from the party that keeps yelling it wants America back.  I can’t think of a court brief I’ve more looked forward to reading, and you can bet both of Boehner’s contending sides will be keeping a keen eye on every word, as well.

Frankly, I wish there were a full-throated defense of DOMA to be had.  It’s always best, and most gratifying, to win a pitched battle against a worthy opponent.  It doesn’t do anyone any honor to defeat a much weaker adversary, and winning by default is the least honorable kind of victory.  When Prince Hal praises the dying Hotspur, he’s also claiming something for himself in having defeated someone who was such a worthy challenger.

What we’ve learned after the Prop. 8 trial is that there are few highly respected people left in this country who will defend DOMA on its merits.  The patchwork of prejudice, misunderstanding, fear and sheer political cowardice that led to its passage has frayed, and while there’s enough left of that coalition that a party desperate enough can appeal to, the times, they have a-changed, and are continuing a-changing.

So I’m not expecting a full-throated, or even croaking defense of DOMA, but rather a timid tiptoe through the caselaw that avoids as many political minefields as possible.  Speaker Boehner will be paying dearly for exactly that, making no one happy, and hopefully we’ll be rid of this troublesome piece of DOMA soon.  There won’t be much honor in winning this case against a waning, whining assailant that once commanded a majority.  But we will get one more piece of the equality we’re entitled to.  I’ll take that.

To answer the question of how many homosexuals there are, you have to answer a prior question: What is a homosexual?

Gary Gates at the Williams Institute is doing his best to answer the first question in a new report. And while the results are a bit more clarifying than what has come before, they’re still no better than the imperfect answer to the more fundamental question.

Gates goes with the most minimal approach to the question of whom to count: people who identify as gay, lesbian or bisexual.  That’s fair, but is obviously underinclusive.  There are still probably millions of people in the country who are homosexual but in the closet in some measure.  It’s also a bit overinclusive, since the fluidity of bisexuality can sometimes give them a hall pass out of the laws (at least) that disadvantage those whose sexual orientation is more fixed.   Gates separately counts the number of transgender people, whose sexual orientation is independent of their gender or gender presentation.

Timothy Kincaid has some thoughtful criticisms of Gates’ methodology over at Box Turtle Bulletin, and Gates defends himself (but not his methodology) at the Washington Post.

The twin problems of whom to count and how to count them seem insoluble to me.  As with race, the number of confounding personal and subjective factors means that the very best we can do is approximate an approximation.  And with sexual orientation the subjectivity almost eclipses any objective criteria – except, of course, identification.  That is the one part of sexual orientation that is most clearly visible and public, and as close to objective (though still not truly objective) as science can accept.

What this new chapter reveals has less to do with sexual orientation than with our current cultural preoccupation with the biases of social science.   Gates says that it is important to have an accurate count of homosexuals “because legislatures, courts and voters across the country are debating how LGBT people should live their lives.”  But how do, or would, those discussions change if Kinsey’s old guesstimate that 10% of the population is homosexual is instead 3.5% or 1.7%?

The anti-gay folks are already subdividing the numbers Gates arrived at, and are trying their best to use his scientific candor to their advantage.  But their game exists in the same parallel universe that Gates inhabits.  The debate in those legislatures and courts is not a demographic one, nor is it a scientific one.  It is a moral debate about equality, and a legal one about the meaning of some pretty specific state and federal constitutional guarantees.  Numbers are, in fact, a distraction from that discussion, a detour some politicians are all too happy to take.

Nothing in the legal notion of equality requires a statistical threshold.  Journalists, in particular, are eager to entertain the social scientists because numbers always sound like they are meaningful and objective.  In this case, though, they are deceptive at worst, and flawed at their very best.  The only numbers we need are among voters and politicians.  Let’s devote our efforts to counting what counts.

There’s been surprisingly little furor over the Arkansas Supreme Court’s decision this week to overturn a voter-passed initiative that prohibited unmarried couples from adopting or foster parenting children.  Fifty-seven percent of state voters approved the measure, and in a unanimous decision, the court said it violated the state constitution.

The opinion isn’t about same-sex marriage, exactly, and it isn’t a case holding that lesbians and gay men are entitled to equal treatment.  That may have tempered the acrimony and excitability that normally occurs at this stage of the kabuki.

But the opinion does overturn the will of the voters, which is the standard touchstone in these cases – at least where same-sex couples are involved.  Where are the calls for judicial impeachment?

Arkansas’s Act 1 only prohibits adoption or foster parenting to people who are cohabiting with a sexual partner outside of a lawfully recognized Arkansas marriage.  So, by its terms, it doesn’t single out homosexuals. There is a very good discussion at Eugene Volokh’s site about whether a headline saying “Ark. Court strikes down law barring gay adoptions” is accurate or not.  But there certainly wasn’t any doubt in the mind of Arkansans what and who the law was really about.  There doesn’t seem to have been much concern in the voter’s minds about heterosexual unmarried couples, who could, after all, get themselves lawfully hitched if they wanted to adopt a child.

The court’s reasoning turns on a simple question: Can any unmarried, sexually active partners serve as foster or adoptive parents in a way that would be in the best interest of a child?  The Act makes a blanket determination that non-marital sexual activity overrides the normal determination in these cases of a child’s best interest, and the court ruled that this made the law overbroad.  The Arkansas Constitution guarantees the state’s citizens freedom from governmental intrusion into adult, consensual, private sexual decisions, and laws that abrogate that freedom have to be very narrowly tailored or else they will be unconstitutional.

State law already allows courts to determine whether any particular couple, cohabiting or married (or any single person, for that matter), would serve a child’s best interest.  The Act’s wholesale elimination of one entire category of such potential parents puts any good parents in the excluded category to the choice of giving up their partner or their wish to adopt.  The court is quite savvy in noting that the state couldn’t really enforce any middle ground of making sure unmarried partners aren’t having sex.  That, after all, is the common sense underpinning of a constitutional right to sexual privacy – Bedroom Policing is beyond even the furthest limits of any legitimate government or any legitimate police force.

The unanimous opinion, while not pro-gay, rests on the same foundation that all civil rights movements rely on.  There may be – are – some same-sex couples who would not make good parents.  It is unlikely, I’d think, that many of them would go through what Arkansas requires to adopt a child, but it’s possible.  Existing law, though, provides for that by making courts determine whether any particular couple’s parenting potential would be in a particular child’s best interest.  No couple’s ability is prejudged, no child’s best interests decided by default.

Anything less is discrimination – judging someone based on other than their own merits.  That is really all lesbians and gay men are asking for.  The highest court in Arkansas read that state’s constitution as giving them — and the children they may want to raise — that chance.

MSNBC’s Lawrence O’Donnell could maybe, as Jon Stewart says, “Take it down a notch for America,” but he makes a sound enough point; anyone who refers to America’s “Catholic vote” is not saying anything coherent.

But I think O’Donnell misses the most important comparative statistic.  He overemotes the fact that 56% of American Catholics don’t believe same gender sexual relations are a sin, which is ten points higher than the general population.

True enough.  But far more important is the fact that this number is a full 56% higher than the figure for Catholic leadership on that supposedly doctrinal issue.

This is unsurprising to anyone who knows or loves an American Catholic.  But it’s importance goes much further than religion.  It’s not out of the question that the Catholic hierarchy is viewed favorably — at least on sexual morality — by about the same percentage of American Catholics as Muammar Gaddafi is, on any issue, by the Libyan people.

The difference, of course, is that Gaddafi has arms and the Vatican doesn’t — any more, at least.  But the larger point remains.  When leaders get too far out of touch with the people they’re supposed to lead, they lose their credibility.  The Vatican has credibility on many other, real moral issues, but its positions on sexuality have become bizarre through neglect or just stubbornness.  Catholics can freely ignore the Vatican since it has no real enforcement authority.  They can go to church (or not) for the good things the church stands for, and shake their heads at the more ludicrous positions.

With luck, we’ll be able to help a coalition deprive Gaddafi of his enforcement authority, and help the Libyan people enact the revolution of disregard for incompetence and malfeasance that this country’s Catholics have successfully fought and so happily won.