IGF CultureWatch

Ron Paul, the Republican House member and presidential candidate, seems as clear as mud on the Defense of Marriage Act. Here’s what he had to say about it in last week’s Republican debate:

PAUL: I think the government should just be out of [marriage]…. But if we want to have something to say about marriage, it should be at the state level and not at the federal government.

SHANNON BREAM (Fox News): All right. Given that answer, I have to ask you about your defense of the Defense of Marriage Act, which defines marriage as between one man and one woman. Even just weeks ago, you criticized this administration for its decision to no longer defend it against legal challenges.

PAUL: And — and the main reason there is, the Defense of Marriage Act — and I’ve been quoted as I voted for it. Of course, I supported it, but I wasn’t there. But because that bill actually protects the states — see, I do recognize that the federal government shouldn’t tell the states what to do. And the Defense of Marriage Act was really designed to make sure that the — that the states have the privilege of dealing with it and the federal government can’t impose their standards on them.

As Jim Cook, among others, points out, DOMA has two parts. One lets the states go their separate ways on marriage. That’s consistent with federalism and with Paul’s stated position — and it’s the part of DOMA that is not under legal challenge.

The second part of DOMA establishes a separate federal definition of marriage as between a man and a woman, regardless of what states may say: a frontal assault on Paul’s stated federalism. This is the portion of DOMA which is under court challenge, and it’s the part President Obama says he can’t, in good conscience, defend.

I guess we can’t expect a Republican presidential candidate to come out and say he agrees with President Obama and Gay and Lesbian Advocates and Defenders about DOMA (or anything else). But the implication of Paul’s position is that he does agree with them—but he’s going to try not to admit it.

If the GOP strategy in 2004 was to impale Democrats on gay marriage, in 2012 the Republicans’ priority is to avoid being pinned down on it themselves. Paul exemplifies the evasions they’ll try to use. How about we all ask him, and other Republican candidates, about DOMA at every opportunity. Smoke ’em out.

Replying to my recent post criticizing the (counterproductive, imho) attack on King & Spalding (“A Victory We Could Do Without”), my friend and fellow IGF blogger David Link says, “I’m just not buying it.” His thinking is exemplary—but exemplary, unfortunately, of the kind of thinking that plays into the other side’s hands.

David’s suggestion that I’m saying anything like “Never play hardball” is a straw man. What I did say is that, when we do play hardball, “we had better be accomplishing something worth the PR cost” of bolstering the other side’s “gay bullies” narrative. If David can tell me what the K&S stunt accomplished, other than moving Paul Clement to a smaller law firm and drawing a condemnation of our side’s “bullying tactics” from the pro-gay Washington Post (this is not helpful!), I’ll reconsider my position.

Of course the other side plays hardball whether we do or not. Of course the other side will call us bullies no matter what we do. That’s the point: they are baiting us.  I’ve said it once, twice, a thousand times, and it’s still true: the point isn’t to win over Maggie G. or to expect reciprocity from the Family Research Council, it’s to retain our superior moral credibility—which is our most precious strategic asset—with moderates, who will decide the outcome.

David is right about one thing: there’s no military command structure in the gay-rights movement. We can’t count on everybody, or anybody, to show restraint. But we can hope for subtle, supple leadership, which HRC and others certainly didn’t show in this case. I fear, though, that if I can’t talk even someone of David’s sensitivity out of a damn-the-torpedoes, tit-for-tat approach, we don’t have much chance of evading the trap Maggie et al. are setting for us.

OK, so what have HRC, Georgia Equality, and other gay rights groups achieved by driving King & Spaulding off of defending the Defense of Marriage Act? (Here’s a good roundup.) Well, the same formidable lawyer, former Solicitor General Paul Clement, is still on the case, undeterred. He’ll be at a smaller firm, but he’ll also be a martyr, and he’ll have no trouble getting any resources he needs.

So maybe HRC et al. have succeeded in making the point that being anti-gay in today’s America comes at a cost, so think twice? That may be the lesson our side thinks it’s teaching, but the lesson a lot of lawyers may hear is: Don’t represent unpopular or controversial clients—including, next time around, gay ones. Obviously, the other side can use the same tactics against us; that is why minorities, especially, have a stake in a system where unpopular and controversial people can get top-flight legal representation.

What’s really going on here is not reflective, it’s reflexive. Activists found a weapon and used it and it worked. OK, that’s politics. I get that. Gay rights groups aren’t paid to make life easy for their opponents.

Here’s the thing, though: as gays emerge into effective majority status, the best and maybe only weapon the other side has left is the “homosexual bullies” narrative, in which they’re the oppressed minority, just trying to speak their mind and practice their religion, and we’re riding roughshod over their civil rights by trying to silence and intimidate them. We can’t stop the other side from flogging this narrative, but we can, and should, be cautious about even giving the appearance that the “gay bullies” narrative is true. If we look like we’re clobbering someone, we had better be accomplishing something worth the PR cost.

Just guessing, but I don’t think Paul Clement’s having been pushed to a smaller firm is going to change the Supreme Court’s judgment on DOMA. I don’t think it’s going to deter the other side from going to court. I don’t even think it will deprive the other side of good lawyers. It did show gays have some muscle. It didn’t show we’re smart about using it.

In 1961, Frank Kameny, the pioneering gay-rights activist who was fired from his government job because of his homosexuality, asked the Supreme Court to intervene. The court ignored him and his appeal was forgotten—until now.

Frank’s Supreme Court petition has resurfaced and is now in print via Amazon Kindle, courtesy of Charles Francis and the Kameny Papers project. It’s short; read it. At the very least, buy it (proceeds go to benefit Frank). It is a staggering document, not just of historical value but still, 50 years later, a summa of what the gay civil-rights movement is (or should be) about.

Later in the 1960s, with the emergence of the countercultural left and the counter-countercultural response from the religious right, gay rights became a left-wing movement. (As one activist put it in the 1970s: “Never forget, what this movement is about is fucking.”) Frank, from the start, set his sights much, much higher, drawing a straight line from the Declaration of Independence and the Founders to gay individuals’ right to be left alone and choose their own destiny. The natural home for Kameny’s rhetoric and argumentation is the libertarian right, not the left. The voices he channels are those of Thomas Paine and Thomas Jefferson:

In World War II, petitioner did not hesitate to fight the Germans, with bullets, in order to help preserve his rights and freedoms and liberties, and those of others.  In 1960, it is ironically necessary that he fight the Americans, with words, in order to preserve, against a tyrannical government, some of those same rights, freedoms and liberties, for himself and others.

In a more rational country, gay equality would have been a conservative cause.

When I say the document is staggering, I’m thinking of passages like this:

Petitioner asserts, flatly, unequivocally, and absolutely uncompromisingly, that homosexuality, whether by mere inclination or by overt act, is not only not immoral, but that for those choosing voluntarily to engage in homosexual acts, such acts are moral in a real and positive sense, and are good, right, and desirable, socially and personally.

Imagine the vision and courage it took to say that…to the U.S. Supreme Court!…in 1961! He’s saying that being gay shouldn’t just be tolerated. It shouldn’t even be merely accepted. It should be admired!

Half a century later, when 43 percent of Americans still tell Gallup that homosexuality is morally wrong, and when many gays are still reflexively hostile to the classical liberal tradition, the country is still struggling to catch up with Frank; but now, at least, we can all recognize this amazing man for the prophet he was. See for yourself.

You may have seen this recent Washington Post/ABC poll: the latest and, in my view, most reliable of the still-few national polls which have shown an outright majority of Americans favoring same-sex marriage.

I have been as careful as anyone to read the polls cautiously. When people are offered the third alternative of civil unions, support for SSM falls to the 30-40 percent range (though the trend has been upward). And it is true that more people say they support same sex marriage than vote for it.

That said, I scratch my head when reading conservatives’ interpretation of the poll. “Don’t believe it,” says a National Review editorial (April 18):

Respondents seem to tell interviewers that they favor same-sex marriage because they think it’s what they are supposed to say. Their answers are more negative when voting or responding to robo-polls… The poll is not evidence that a majority of Americans support same-sex marriage. It is, however, evidence that its supporters have succeeded in setting the terms of the debate.

Or that, says Maggie Gallagher, they have succeeded in “intimidating and silencing” gay-marriage opponents. “America is becoming a place where people have to be wary about saying what they believe.” Got that? Gay marriage opponents are…an oppressed majority.

Having relied so long on the argument that elites are trying to ram gay marriage down the throats of an unwilling majority, opponents now have their backs to the wall. In the face of evidence of shifting public opinion, they have little choice but to deny.

Even if it is true, however, that people are growing more reluctant to express opposition to SSM—which, by the way, would be evidence of changing public morality, not of “intimidating and silencing”—it strains credulity to say that nothing but bullying is reflected in Pollster.com’s Charles Franklin’s splendid scatterplots of poll results going back more than two decades.

As the charts show, support for SSM rises slowly but steadily over time, and opposition declines—on both the two-way and three-way questions. Are we to believe these results measure nothing more than the creeping menace of gay bullying?

Here’s something else, from Gallup. Over a decade, the trends in approval of same-sex relations mirror the trends in approval of same-sex marriage. Is that “intimidation” too? A coincidence?

To me it seems pretty hard to sustain, with a straight face, the claim that these polls don’t represent real changes in public opinion. I don’t think there’s a national voting majority in the U.S. for same-sex marriage. But I do think the day is coming.

One reason is the poor job that SSM opponents have done convincing the public that keeping gay couples out of marriage will help keep straight couples in. Another is their refusal to address the country’s growing moral compassion for gay Americans. Denial doesn’t cut it.

It was only two years ago that, for the first time, the share of Americans who think same-sex relations are morally acceptable grew larger than the share who condemned them—a first, and a breakthrough. Is same-sex marriage now at that point?

Maybe. Or, anyway, close. A unique data set going all the way back to 1988 finds that now, for the first time, more Americans support than oppose same-sex marriage.

I don’t actually think we’re there yet. Polls showing plurality support for SSM remain outliers. Most show the larger number are opposed: for example, this one shows 48-42 against.

Perhaps more significant: when you ask the question in what I think is the best way, offering the third option of civil unions, a lot of gay-marriage support shifts to CUs, with about a third of the public supporting each option. But that, too, represents a change. As recently as 2004, those opposing any legal recognition for gay couples outnumbered SSM supporters by two to one in many polls. (In 2008, Karlyn Bowman of the American Enterprise Institute published an excellent roundup.)

So, no, I don’t think gay marriage has attained true majority support. But gay relationships are there already. And, any way you slice it, the progress has been remarkable.

More: Here are two excellent scatterplots summarizing opinion on gay marriage. H/T Charles Franklin and HuffPo.

Sarah Palin and Sharron Angle say it’s OK with them if GOProud, a gay Republican group, attends the Conservative Political Action Conference. This distinguishes them from a number of other leading Republican figures. Good on them.

But how grateful should we be? At The Daily Caller, Jeff Winkler calls out gay-rights groups for “willfully ignoring” Palin’s and Angle’s gestures:

The nation’s largest gay rights advocacy organization, the Human Rights Campaign (HRC), has instituted its own “Don’t Ask, Don’t Tell” policy toward conservative firebrands Sarah Palin and Sharron Angle after they implicitly — but clearly — voiced support for the gay-oriented Republican group GOProud.

I agree that mainline gay groups have been too partisan (though I also agree that Republicans have given them little cause for bipartisanship). IGF came into being partly to make this point.

But are we really supposed to praise Republican politicians simply for saying they’re willing to share a convention hall with—well, with “diverse groups,” as Palin delicately put it? (Would it have been so hard to say “gays”?) Isn’t that setting the bar a bit low? Shouldn’t we expect them to do or say something that might actually help us? Or at least specifically acknowledge that we exist?

Put me down with HRC on this one. I’ll keep an open mind on Palin. But I’ll praise her when she earns it.

Mark Twain said that, if there is a heaven, it’s apt to be mighty crowded with hypocrites. Writing in the L.A. Times on social conservatives who go after gays because they’re easier targets than divorce and single parenthood, David Boaz shows why Twain was right.

As part of his campaign to out-Romney Mitt Romney in the right-wing-pandering department, Minnesota Gov. Tim Pawlenty wants to reinstate the “Don’t Ask, Don’t Tell” ban on openly gay service in the military.

According to the GAO, it turns out the ban cost almost $200 million over fiscal 2004-2009, or an average of $53,000 per discharged service member. And that’s just five years. As we know, discrimination is expensive. From PoliticsDaily:

Some 39 percent of the dismissed service members “held critical occupations, such as infantryman and security forces,” the GAO said. That percentage included 23 experts who held skills in an important foreign language, “such as Arabic or Spanish.”

This is the same Pawlenty who demands federal spending cuts and opposes raising the debt limit (i.e., deficit financing).

Shall we ask the Governor, then, just which program he’d cut (Medicare? school lunches? the defense budget?) to reinstate discrimination in the armed forces? Or perhaps he’d prefer to raise taxes? He could call it the Safe Showers Surtax.

Ah…but rhetoric is free.

I have to say, I envy what Sherif Girgis, Robert George, and Ryan Anderson (GGA) have accomplished in their recent article (available here) and several follow-on posts (the latest is here). They have at last brought 100 percent epistemic closure to their opposition to same-sex marriage.

Their article is long and full of stuff, and it has generated an interesting discussion (many posts thru Jan. 3 are here, and GGA’s latest includes links to some more recent ones), but the verbiage is really all a gloss on this proposition: “Same-sex couples can’t marry because heterosexual intercourse is the sine qua non of marriage.” Or, to put it even more concisely: “Same-sex couples can’t marry because they’re not opposite-sex couples.”

Remember all that talk about marriage being “ordered (or oriented) to procreation”? As the new article and especially this follow-up make refreshingly explicit, “ordered to procreation” actually means “synonymous with heterosexuality.” Whether or not couples can actually procreate has nothing to do with it. If they can have penile-vaginal sex, they can accomplish the good of marriage. If not, not.

Never mind that the authors think they have discovered the truth of their proposition in the mists of time, in the self-evident contours of human sexuality, etc., etc.: what they have here is a take-it-or-leave-it proposition, impervious, like some species of Marxism or Freudianism, to external refutation. Tell them that marriage does many important things besides provide a context for procreation, and that (straight) couples who cannot possibly procreate are allowed (indeed encouraged) to marry, and they merely say that those other purposes and other constituencies of marriage are not marriage’s essential nature.

Theirs is, in my own view, an impoverished, incomplete, and significantly wrongheaded view of marriage—and, what’s more important, it’s the whole wrong way to talk about marriage, which is a social institution, not a Platonic abstraction. But I see why it appeals to GGA: it allows them to absent themselves from all of the difficult questions in the gay-marriage debate…e.g.:

* The policy debate. GGA’s article includes some pragmatic arguments, but they’re baggage. If the documentary evidence were a mile high that legalizing same-sex marriage benefits gays and society, that wouldn’t change the fact that same-sex couples can’t be married.

* The equality debate. What equality debate? There is no equality case for same-sex marriage, because same-sex couples can’t be married.

* The humanitarian debate. Look, it’s not GGA’s fault that gay couples can’t be married, but they can’t, and that’s that. The good news, though, is that gays can still have intimate friendships. (Thanks.)

Disconcertingly, GGA congratulate themselves for resolving the gay-marriage issue, when they’ve merely ducked most of it. They seem to have no moral qualms about saying, in 2011, that their moral universe need take no account of gay lives and loves. Let them eat friendship! GGA have, indeed, defined not only gay marriage but gays out of the picture. I wish I could help them to see why, to a gay American in 2011, their approach seems not only unpersuasive but chillingly callous.

I wasn’t being entirely sardonic when I said I envy what GGA have accomplished. I sometimes wish I, too, could write myself a permission slip to take a pass on the hard moral and social questions. I’m grateful that the American public hasn’t and won’t.