IGF CultureWatch

As the American Family Association continues in its quest to become the most annoying of the conservative gadfly organizations, they couldn’t have come up with a better pick for patron saint than Newt Gingrich.  Last year, Gingrich provided them with $350,000, more than a third of their funding to “defend traditional marriage” in Iowa by recalling judges whose marriage ruling they disagreed with.

The cheap shots at Gingrich’s own troubled marital traditions are too easy and numerous, and frankly they distract from a more important criticism.  To court the right wing, Gingrich has to feign for them the same obsession with same-sex marriage that blinds them to issues of real importance.  I don’t think Gingrich is, in fact, so blinded, but his generosity certainly won their admiration, and bought them success.  Iowa’s voters did throw out the three targeted Iowa Supreme Court justices, and they’re gunning for more.

This offense is a dangerous kind of defense – of marriage or anything else.  The justices were not accused of misconduct, of incompetence, of corruption, or any kind of scandal, defect or misbehavior.  They were accused, and found guilty, of a result.

Far more than that, they were found guilty of only a single result.  No other cases in their long careers, no positions they had taken, no opinions they had joined, but that one, were at issue.

This is politics in full fury, the very thing the founders wanted to protect the third branch of government from.  Every day, judges across the country deal with an infinite number of problems, and do their best to solve conflicts that seem to have no other solution.  Appellate courts, in particular, get only the most developed of these cases, and the time to consider them fully.  Multiplicity is what makes reviewing courts work: multiplicity of judges, multiplicity of cases, multiplicity of parties.

A recall election like this is not without precedent, but there are damn few others.  That’s because of their inherent nihilism.  This is political vindictiveness of a special kind, a frenzy of unconcern.  No possible opinion on this one matter, not even a unanimous one, could be persuasive or correct if it comes to the disfavored conclusion.

This isn’t, perhaps, a definition of bias or prejudice, but it’s awfully close.  It cannot exist without a necessary prior assumption that any justice joining the opinion is somehow acting in bad faith.  There is only one correct answer here, and judges had better get it right.

That undermines the entire role of the judiciary as an institution.  We need our courts to resolve conflicts, both personal and political.  Few cases have split the nation like Bush v. Gore, but after all the political poison was aired, we accepted the result.  That respect for the institution, however grudging, is one of the things that holds this nation together.

Gingrich is aiding and abetting the AFA, and many others, in a rancid enterprise.  Maybe right now, the only judges who need to worry are those who think the constitution’s specific enumeration of equality applies to same-sex couples.  But it’s short-term victories like that that can lead to the next single-issue recall, and the one after that.  Perhaps that sort of judiciary, driven by the politics of the moment, is the one a President Gingrich would want.  But it’s nothing like the judiciary the constitution gave us, or the one this country needs.

John Boehner and his House of Representatives will defend Section 3 of DOMA, no surprise to anyone.

In his statement, Boehner says, “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”  The cheap shot at the President is to be expected from a fellow politician.  Certainly, Boehner knows perfectly well that no president could finally decide unilaterally whether a law is or is not unconstitutional, and Obama hasn’t made any claim like that.  The President can offer the court his opinion, just as Boehner and his lawyers will, but in our constitutional system it’s up to the courts to make the final call about such things.

Interestingly, Boehner does mention that ultimate authority of the judicial branch, which is strange because that authority is, to the most conservative members of his party, a one-way ratchet.  To their way of thinking, courts have authority to declare DOMA constitutional, but if they declare it unconstitutional, they will be judicial activists, defying the elected branches.  That charge is as predictable as the sun rising in the east.

So now we have a situation where the Speaker of the House differs with the President about a law’s constitutionality.  If the courts rule Section 3 unconstitutional, then, how would anyone determine whether the court got it right?  The president who signed the bill isn’t in office any more, and the one who is says that, in his opinion, Section 3 is unconstitutional.  The current leader of the House says it isn’t.  How do you determine whether a court is activist or not if different political branches are of divided opinion?

This is exactly the reason making the judicial branch independent of the political branches was so profoundly important to America’s success.  Politicians always disagree, sometimes for good reasons, sometimes for bad reasons, and sometimes for no reason at all.  When it comes to the law, someone has to resolve differences of opinion, even if those differences arise over time.  Courts are, above all, an institution that needs to transcend politics, as best they can, being composed of fallible human beings.

The constitutionality of Section 3 will now be both properly defended and properly challenged in the judicial branch, and it will be properly decided there.  Boehner is right that the courts are the correct place for such a ruling, and I think we have a right to expect him to be consistent about that when the courts do make their final decision.

The Supreme Court ruled, 8-1, that Fred Phelps and his Westboro Baptist Church has the right to exercise his first amendment rights even at military funerals.

That’s the right result, not only legally, but for us, politically as well.  We not only can’t stifle people who oppose us — even the most vile — we shouldn’t.  While Westboro is the most extreme voice, the emptiness of their bellowing is hardly unique.   And the more people listen to the clamor and blather, the more they come to support — or at least not oppose — us.

John Boehner had exactly that problem dumped in his lap last week.  Defending DOMA is obviously something he doesn’t want to have to do, but the President’s savvy move put the ball in Boehner’s court anyway.  Of course he’ll defend the case on behalf of his base, and of course it will be no big deal; does anyone really think his lawyers will come up with any new or original arguments?  As the Prop. 8 case shows, there is little but fear and fixation underlying laws against same-sex marriage.  Popular fear and fixation, certainly, but fear and fixation still.

So let him defend it.  Better, let him try to distance himself from Fred Phelps at the same time.  That’s his real problem, and Boehner seems smart enough to know that.  If we’re very lucky, today’s Supreme Court decision will give Phelps a good boost of public attention, and I’m hoping we and John Boehner will be seeing more of him.

Newt Gingrich deserves all of the brickbats and damnation he is getting for his uninformed and thoroughly wrong opinion about the President’s DOMA decision.  I’ll only add a word about why his pugnacious subterfuge will have some appeal — and why it shouldn’t.

Gingrich is trying to morph Obama into San Francisco’s Gavin Newsom.  Newsom, in fact, is the lawless politician Gingrich wishes Obama were, who not only refused to enforce California’s anti-gay marriage prohibition, he ostentatiously allowed people in his city to openly violate it.  This was a politically savvy and profitable move for him (he is now California’s Lieutenant Governor) but it was an unapologetic violation of his legal duties, something the California Supreme Court made abundantly clear.

Obama is not Newsom.  Newsom took what he believed to be a moral position, akin to civil disobedience.  That is fine for individual citizens, but it is a bit more precarious for someone whose job is to administer the law.

Obama has either learned from Newsom’s escapade, or is relying on a different political instinct.  Eric Holder’s letter to Speaker John Boehner could not have been clearer that (a) the administration will continue to enforce DOMA as long as it is the law; and (b) that while the administration will not defend it in court, they are not trying to sandbag anyone, and want to give other parties with an interest, up to and including Congress, itself, the ability to defend it as best they can.

Enforcing the law is a clear legal obligation of any administration, local, state or federal.  But defending laws in court is imbued with political judgment.  While it is now being brought out as a bogeyman to wither the left, a Republican President who does not want to defend Roe v. Wade has leeway to make that call.  There are others who can step up to the plate.

The executive’s leeway here comes for an obvious but often depreciated reason.  The courts are a separate branch of the government.  While the executive branch can normally be relied on to defend laws, the executive is not the only possible party in a court proceeding.  Certainly, courts may give a bit of extra deference to the executive’s position, but the court’s duty is to the law itself, not to any particular party in the case.

Whether a statute is defended or opposed by Richard Nixon or the ACLU or the American Nazi Party or Congress, the courts rule on the validity of a law independent of the nature of the contending parties.  The courts are always subject to suspicion about political motives in decisions, but contrary to easy rhetoric, no single judge ever has the final say on any law.  Both the state and federal court systems have elaborate mechanisms for appeal, where multiple judges holding a myriad of political and personal views take part in the process of making these consequential decisions.  And the higher a case goes in the process, the more judges there are on the panel.  That is no guarantee against political motivation in the judiciary, but it’s an intentional layer of insulation from the naked politics of the executive and legislative branches.

Obama made his political and moral decision not to defend DOMA because that kind of choice falls within the judgment any president has.  But in the area where he has no such latitude – enforcing the law as it currently stands – he has made it as clear as can be that he will do what the law requires.

Gingrich and others may wish Obama were someone else, and may try to mischaracterize his actions to that end.  But Gingrich is today what he has always been, a cheap charlatan with a used car salesman’s patter and sincerity.

Steve Miller isn’t kidding that the Administration’s decision about DOMA is good news.  I’d call it a game changer.

Nothing in the Attorney General’s letter limits the analysis he uses, which is why a lot of folks are jumping the gun and saying its reasoning will apply to all gay issues.  That’s probably true, but premature.  Let’s all take a deep breath.

While the courts don’t necessarily need to take their cues about the issues in a case from the parties, that is clearly the preference and practice.  And while the way the federal government articulates the issues wouldn’t necessarily be the be-all and end-all, again, that would clearly be of significance to a court.  The federal government is no ordinary party.

I think the administration is trying to get the first rulings on DOMA focused on (a) Section 3 and (b) how it applies to states that have already adopted full marriage rights.  Section 3 just applies to the federal government, and says it can only recognize opposite sex marriages.  Courts generally shouldn’t reach out for issues — and particularly constitutional issues — that go further than are required to actually decide the particular case before them.  So a court, and particularly the Supreme Court, could heed the government’s lead, and decide only those two issues — Is Section 3 constitutional with respect to the federal government as it applies to a couple who are legally married under a state’s law?

That would leave other issues for another day — civil unions and domestic partnerships, Section 2 (which allows states the freedom to ignore same-sex marriages from other states), etc.

And a decision along those lines from the Supreme Court would be the best win of all, I think.  Moving marriage squarely into the equality column is a solid victory.  And if the Supreme Court were to rule that sexual orientation is entitled to heightened (but not strict) scrutiny, that resolves one of the foundational issues the lower courts has been struggling with — though it’s also possible the court could adopt rational basis and still rule that federal treatment of two marriages, one straight, one gay, is not equal treatment under the law.  Or Justice Anthony Kennedy could move a bit further on his liberty analysis from Lawrence v. Texas, a different kind of analysis entirely.

In any event, this would then leave the lower courts to wrestle for a few years with the other questions, and the Supreme Court could see how that develops.  It’s not out of the question that lower courts could rule in our favor on the more contentious issues, and the Supreme Court would not need to say an additional word.  The biggest problem, from our perspective, is when lower courts disagree and the Supreme Court needs to resolve the disputes; if the lower courts rule in our favor, the Supreme Court can just refuse to accept certiorari from the losing parties.  They don’t need to accept any case offered to them, and in fact refuse the vast majority.

The most amazing thing about this decision for me, though, is still the political aspects of it.  Obama has made the political decision that the split in the electorate that worked against Clinton, Gore and Kerry has now been edged more solidly into the GOP side.  In other words, the toxic effects of the anti-gay marriage side have migrated away from the Dems and more generally the independents, and are most potent among the Republicans now.

That’s why the letter is addressed solely to John Boehner.  The Administration has taken an unambiguous stand in favor of gay equality on marriage.  The ball is now in Boehner’s court, and his party’s

This extremely high profile move will have a year and a half to work its way into the public opinion polls, but I think the timing is just about right, and Obama will prove to have the better case on this issue come 2012.  Gay marriage will exacerbate the existing split among the GOP, and if the economy improves (clearly one of the biggest issues on voters’ minds), gay marriage will only hurt the GOP — the exact opposite of the effect it had in 2004.

These things are never certain.  But I think Obama’s political and legal instincts on this get it just right.

Facebook’s decision to include “civil union” and “domestic partnership” as relationship statuses is not an unmixed blessing.  Marriage Equality’s Mollie McKay is right enough that “. . . it’s important to be able to recognize and describe the legal status of same sex couples.” Facebook is the virtual New York: If you can make it there, you’ll make it anywhere. . .

But all this does is clarify for the world that, when it comes to being homosexual, It’s Complicated.  Facebook used to offer same sex couples the legally accurate but obviously wrong option of saying they were “single,” or the vague but helpful “in a relationship.”  Five of the other options (“engaged,” “married,” “separated,” “widowed” and “divorced”) locate people on the spectrum of the ordinary marriage spectrum.  The two others, “in an open relationship” and “it’s complicated” acknowledge the varieties of human experience.

So adding civil unions and domestic partnerships clarifies some new legal options and lets same-sex couples identify themselves more precisely.  But the cost of that precision is an additional level of social clutter.  Prior to the creation of domestic partnership as a legal category in 1985, and Vermont’s civil unions in 2000, no same-sex couples would have referred to themselves in such legalistic terms.  They would have said they had a committed relationship, and would almost certainly have married one another if the law allowed.  And on the other side of the scale, it is unlikely at best that any significant number of committed heterosexual couples (i.e. the ones who wouldn’t call their relationship “open”) would have dreamed of formalizing their relationship in any way other than a marriage.

Domestic partnerships and civil unions are way-station categories, created only because the vacuum in the middle of gay lives was so obvious and oppressive, at first only to same-sex couples, but increasingly to heterosexuals who could see the glaring injustice.  While the law can not prohibit same-sex couples from loving one another and forming commitments, it can nevertheless enforce a blasé cruelty by simply ignoring the relationships entirely, treating them as a legal irrelevancy.

It is that blasé cruelty that makes Maggie Gallagher and so many others irksome.  But it is exactly because of social speedbumps like Gallagher that we have to further complicate the world before we can resimplify it in a more inclusive way.

Domestic partnerships and civil unions, at least when they provide comprehensive state benefits and responsibilities identical to those of married heterosexual couples, are not as egregiously offensive as some argue; they lie somewhere between deeming our relationships 3/5 of a real relationship and full equality, neither as bad as the former nor achieving the latter.  We are clearly making progress on full marriage equality, but there we have to expect some political defeats in the years ahead.

That is the compromised ground we will be working from for the next generation.  Facebook has made it clear that ground is solid if confounding.  Let’s just hope we can stick with two additional relationship categories for awhile, before we wind the world back to just having one for everybody.

I don’t know if either of these ads will make it to network television, much less the Super Bowl; but I know that I, for one, will be eating more Doritos.