IGF CultureWatch

First published March 9, 2005, in the Chicago Free Press.

Belligerent and strident Supreme Court Justice Antonin Scalia has an inexplicable reputation for judicial brilliance. What seems insufficiently noticed, however, is Scalia's recent passage from a masked religious advocacy to overt support for intruding religion into people's lives.

During the March 2 oral argument of constitutional challenges to government displays of the Ten Commandments, Scalia observed that the commandments were "a symbol of the fact that government derives its authority from God." A little later he added that display of the commandments sends the message that "Our laws come from God."

Now this view of American government is offered entirely without evidence and not only deeply dangerous to republican government but at every point demonstrably false.

Scalia's claim is dangerous because based on what we can learn from ancient religious texts, gods typically give commands, offer no reasons for their commands, require unquestioning obedience, brook no argument or dissent and tend to destroy those who disobey. If governmental authority comes directly from a god, governments have no reason to follow any other practice.

In theory, any such government is obligated to obey the god's will. It is exactly this theory that underlies fundamentalist Muslim hostility to democracy - that democracy is non-Islamic because it is rule by the people instead of by Allah. But of course it is the government itself or officially approved religious authorities who determine what God's will is.

Scalia's view that government derives its authority from God seems indistinguishable from the medieval doctrine of the Divine Right of Kings. But modern governments, even monarchies, long ago abandoned that claim, no prominent American statesman - and no Supreme Court justice - has ever asserted it, and the founders of the United States rejected it in the strongest terms.

The very Preamble to the U.S. Constitution makes it clear that the American government obtains its authority not from any god but from the people themselves: "We the People of the United States," it says, "do ordain and establish this Constitution for the United States of America." That is, the people form the government and grant it powers. Nowhere does the Constitution mention God.

The theory behind this - what we might call "the metaphysics of republican government" - is set out in the Declaration of Independence. There, Thomas Jefferson and the 55 other signers explain that "all Men ... are endowed by their Creator with certain unalienable Rights" and that the governments they institute derive "their just Powers from the Consent of the Governed."

In short, the idea is that the Creator gives unalienable rights to human beings, who in turn grant to a government only enough power to protect their rights. The government receives nothing at all from God - no authority, no rights, no powers.

If someone tried to cavil that the Declaration was technically not a government document, we can point out that both the Ninth and Tenth Amendments make clear that the people themselves have primary possession of rights and powers, even of the ones they transfer to the government.

The Ninth Amendment says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Note the word "retained" - that is, the people had the rights in the first place before they formed a government.

The Tenth Amendment adds, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." Note the word "delegated." The government's authority is derived from the people - and in the U.S. context, pre-existing state governments - not from God.

Unfortunately for Scalia, even if governments did obtain authority from God, the Ten Commandments would not be a reliable basis for our laws.

For one thing, societies long before and in total ignorance of the Ten Commandments had highly developed law codes that prohibited stealing, adultery and the murder of fellow citizens. Those are fundamental requirements for any society and hardly depend for their discovery or enforcement on the authority of anyone's particular god.

Second, most governments - including ours - reject the idea of enforcing through law many of the Biblical God's commandments - for example, those that prohibit work on the Sabbath or the creation of graven images, and the parts that refer complacently to slavery (commandments 4 and 10).

Third, contrary to the fundamentalists' view, many biblical scholars point out that if the Israelites had just escaped slavery in Egypt and were wandering in the desert, they would hardly have had slaves of their own, nor houses nor cities with gates, yet all those are referred to in the commandments. That indicates that the commandments were not given at Mt. Sinai but formulated later by scribes for a more developed society and back-dated by being inserted into the Exodus to give them more authority.

So Scalia's view is ignorant, false, tendentious, authoritarian and literally un-American.

First published February 23, 2005, in the Chicago Free Press.

Here's a cure for all your troubles.
Here's an end to all distress.
It's the Old Dope Peddler
With his powdered hap-pi-ness.
- Tom Lehrer, "The Old Dope Peddler"

Those of us who do not do drugs, and we are the majority, are getting pretty sick and tired of drugs - and more sick and tired of drug users. Get a life, guys - a real life, not an illusory one.

Drugs are not like food. They do not add any new nourishment or capacities to the body. They produce nothing that was not already there. Nor do they add any new or additional awareness or perceptiveness, or sensitivity, or energy, or erotic desire. What they do is generate the illusion of these things by inhibiting cognitive functions that compete with or limit or regulate these responses as they occur.

They do that by temporarily distorting body and brain chemistry, primarily by reducing or forcing an excess of chemical signals the brain and body use to monitor and maintain normal, effective functioning, different chemicals depending on the drug, which is why drugs have different effects.

Eventually the body calls a halt to the disruption, shuts down, and struggles to repair itself and return to normal operation. That is why for every high there is a crash, just as deep a down as the high was high. And trying to stave off the crash by doing more drugs makes the ultimate crash all the deeper.

Drugs do not create "addiction." That is to say, drugs cannot force people to take more drugs. People take drugs because they want to, often want to very much. Some people find the absence of a drug unpleasant, even very painful, but it is they who make the choice to take more drugs.

Similarly, drugs don't make people do stupid or dangerous things. That is another evasion. What drugs do is enable people to do stupid or dangerous or destructive or violent or even murderous things. Enable, not make. Sometimes people say, "It was drugs." No. It was the person.

To repeat: Drugs do not add anything to a person that was not already there. They do not insert some foreign personality. All they can do is take away some of what makes a person fully human by inhibiting the higher brain functions people normally rely on for self-control and good judgment.

We are evolved creatures. Our animal ancestors had simple and immediate desires and responses - hunger, fear, anger, sexual desire. Only gradually did our pre-human ancestors evolve a cerebrum with cognitive capacities for thinking, judging, self-awareness, and an ability to foresee consequences and choose prudently among alternative behaviors. But those newer capacities did not replace the earlier responses; they only limited and channeled them.

When drugs distort or eliminate some of those cognitive controls humans have developed over their immediate desires and emotional reactions, people respond more readily to those primal emotions and impulses - engaging in heedless, destructive (and self-destructive) behavior.

The evidence is all around us.

I have seen intelligent men so high on drugs that they could only grunt and point instead of talk, who could barely function while their jobs went to hell. I have known drug users who, over time, seemed to lose 30 I.Q. points and all mental acuity - permanently.

I know of men high on coke or meth who have climbed into slings at parties and let themselves be fucked by anyone who came along or who pressed their greased butts against glory holes. A New York meth user recently reported to have a fast-developing strain of HIV acknowledged having some 300 sex partners in previous weeks. Just as likely, drugs debilitated his immune response.

In Chicago, a gay man reported to have a crystal meth "problem" was in a dispute with a cab driver over a small fare, proceeded to run over the driver with his own cab, backed over him again, then drove forward over him yet again, sped off, crashed into parked cars, and jumped into another cab to escape. Some "problem"!

In short, drugs are dangerous: For many, they enable destructive behavior. For others, drugs sap time, money, energy, and a sense of purpose that could be put to productive, self-actualizing projects. And drugs weaken our efforts to build an attractive, vibrant, and responsible gay community by depriving us all of the contributions those people could make. If I were a homophobic zealot, I would be out on the streets selling drugs to gay men every night I could.

Criminalizing drugs has wrought damage to our country and legal system and has not even worked. But I have no sympathy for drug users and no sympathy when they do destructive and self-destructive things. They chose to do drugs; they chose to put themselves in that condition. Drug use should never be an excuse: It should be viewed as an aggravating circumstance and drug-enabled actions should be judged all the more severely.

Drug users need to start acting like adult human beings. They are not victims, they are perpetrators. And they are a drain on our community.

First published February 9, 2005, in the Chicago Free Press.

A New York state judge in Manhattan ruled on Feb. 4 that barring gay marriage violated the state's constitution. The ruling came in the case of Hernandez v. Robles filed against New York's city clerk on behalf of five same-sex couples by the Lambda Legal Defense and Education Fund.

Justice Doris Ling-Cohan's 62-page decision effectively rebutted the city's arguments for prohibiting gay marriage, then summarized: "Defendant has articulated no legitimate State purpose that is rationally served by a bar to same-sex marriage, let alone a compelling State interest in such a bar."

But Ling-Cohan, like Massachusetts' Supreme Judicial Court in its Goodridge decision, went further to find that permitting gay marriage flowed logically from existing city and state policies as well as earlier U.S. Supreme Court and New York Court of Appeals rulings.

Specifically, Ling-Cohan noted that not only had the U.S. Supreme Court ruled in Loving v. Virginia (1967) that every person has a fundamental liberty to choose his or her marital partner, but, perhaps more important for a New York case, that in 1982 the state's Court of Appeals itself said that "matters relating to the decision of whom one will marry" fall with the state-guaranteed right to privacy.

New York's Republican Mayor Michael Bloomberg, a former Democrat, said he supports same-sex marriage but that the city would appeal the decision in order to obtain a final ruling by a higher court, so that people married in New York would not risk having their marriages later declared void.

It is hard to imagine how the Court of Appeals, New York's highest court, could resist the force of Ling-Cohan's arguments. But the court currently consists of four Republican appointees and three Democratic ones and courts can make distinctions and draw lines most people would never imagine.

There is much to welcome and admire in such an expansive and careful - "scholarly" according to gay legal expert Prof. Arthur Leonard - presentation of the issues and the arguments for the legal equality and moral legitimacy of gay relationships.

And yet it's impossible at this point not to have mixed feelings about legal victories for gay marriage. Two reasons: The Federal Marriage Amendment, now renamed the Marriage Protection Amendment, and last November's passage of constitutional bans on court-mandated gay marriage in 11 states.

Support for gay marriage across the nation stands at less than one-third of the voters and even in the most liberal states scarcely rises to a majority. So conservative and Republican-sponsored measures to block in advance any court decisions permitting it have a good deal of popular appeal.

Most of us were surprised, if not by the result, at least by how easily all 11 state constitutional bans on gay marriage decisions were approved by voters last November, obtaining majorities ranging from 57 to 80 percent. Even in Oregon, where voters had a good record of rejecting anti-gay amendments and where gays mounted a well-funded campaign, we could persuade only 43 percent of the voters to support us.

The problem then is that each time there is a court decision supporting gay marriage, it provides more ammunition for the religious right to use in its campaign against the danger of "activist judges" who are "legislating from the bench." And it provides impetus for more state constitutional gay marriage bans.

Over the medium and the long term gays are gradually winning public support for legal recognition of our relationships. That project is assisted by increasingly visible gay couples, gay marriage and civil unions in other countries, and even by the public discussion generated by those same supportive judicial decisions that are simultaneously fueling the opposition.

But in the short term the risk is that we will lose before we can win.

It is tempting to wish for a moratorium on court decision about gay marriage. But that is not going to happen, at least not in more liberal states, and it seems bizarre to urge gays not to appeal to courts for a redress of unequal treatment by the law. It is also tempting to hope that gays and lesbians will become more effective - and far more numerous - in promoting the moral equality of our relationships. But where is the evidence that that will happen?

The latter seems particularly unlikely given the bizarre tactic in several campaigns against gay marriage bans of not arguing for gay marriage at all but instead pointing out that state law already prohibited gay marriage. So voters never heard any actual arguments for gay marriage. No doubt voters decided that since gay marriage was not a good idea, there was no harm in writing that into state constitutions just to be on the safe side. No wonder gays lost.

Perhaps what we should hope for in the short term is that courts like the New York Court of Appeals might craft a way to give gays and lesbians the substance of marriage without using the "M" word, and leave for another day, when we may have better public relations, the question of whether that provides the full equality gays seek.

First published February 2, 2005, in the Chicago Free Press.

College freshmen's attitudes toward legalized gay unions seem to have been influenced, at least temporarily, by the dire warnings emanating from last fall's Republican presidential campaign and the controversies over state and federal constitutional amendments barring gay marriage.

That, at least, is the most plausible conclusion to draw from a survey of nearly 290,000 college freshmen conducted during freshman orientation last August and September by the Higher Education Research Institute at the University of California, Los Angeles.

Although the annual survey chiefly collects demographic information and education and career plans, it also includes 16 statements about social and academic issues that the freshmen are invited to agree or disagree with. Two of those statements relate to gay unions.

In the fall 2003 survey, 59.4 percent of the freshmen agreed with the statement, "Same-sex couples should have the right to legal marital status." But in the 2004 survey, just released at the end of January, that support fell slightly to 56.7 percent, a decline of 2.7 points.

The language "legal marital status" was originally developed back in 1997 - when the statement was first added to the survey - to delimit the meaning to the legal elements and avoid the religious implications many people have with the word "marriage." Nevertheless, it is possible that some freshmen interpreted the statement to refer to religious marriage and responded accordingly.

The other statement the freshmen were invited to agree or disagree with was, "It is important to have laws prohibiting homosexual relationships." In 2003, barely a quarter (26.1 percent) agreed with that statement. But last fall, support climbed to 29.9 percent, a rise of 3.8 points. That was the largest single change in support for any statement in the survey.

When that statement was added to the survey in 1976, it referred to sodomy laws. Sodomy laws were still in force in a majority of states while gay marriage, civil unions or domestic partnerships were not even a blur on the horizon for most people. But now more than a quarter century later, the statement is undoubtedly interpreted to refer to so-called "defense of marriage" laws or constitutional bans on gay marriage.

And in that light, while it is not encouraging that support for such laws rose almost 4 points in the last year, it is not surprising, and it is in a way encouraging that given the absence of any nationally prominent political or religious figures actually arguing for gay marriage, the change was as small as it was: More than 70 percent of all freshmen still oppose such restrictive laws.

There are two other factors that might contribute to the 2004 loss of support. One is religion. This year's student sample had slightly more Baptists (up by 0.7 points) and Mormons (up 1.0 points), both extremely anti-gay denominations, and 0.6 points fewer members of the United Church of Christ (a liberal denomination).

In addition the sample was 1.9 points less Catholic, and Catholics (unlike that church's hierarchy) tend to be more accepting of gays and gay unions than many Protestant denominations. In fact, support for gay "legal marital status" actually rose slightly in 2004 among freshman men at Catholic schools.

The other factor influencing the results was the polarizing effect that the issues and the rhetoric of the past year's prolonged election season seems to have had on young people as well as adults. Those may have increased unease about gays and lesbians among conservative-leaning moderates.

The number of students describing themselves as politically "middle-of-the road" fell to 46.4 percent, its lowest point in more than 30 years. The percentage describing themselves as "liberal" or "far left" increased 2.5 points to 29.5 percent and the number describing themselves as "conservative" or "far right" increased 1.5 points to 24.1 percent.

If "defense of marriage" laws were taken to be part of the conservative package, and for many they probably were, then the 24.1 percent who are conservative or far right constituted the vast majority of support for those laws. But that also means that almost none of the "middle-of-the road" students supported "defense of marriage" laws - specifically, only one in eight.

One interesting sidelight is that although women have always been more supportive of gays than men have by at least 15 percentage points - and that was true again this year - the decline in support among women was slightly greater this year than among men.

One possible interpretation is that young heterosexual women feel more invested in the idea of marriage than men do and respond more readily to claims that the institution is under attack. This may not be reasonable, but how many fears about gays are?

On other issues: 58.6 percent think colleges should ban racist and sexist speech, but only 43.7 percent think colleges have the right to ban extreme speakers. More than half (53.9 percent) think abortion should be legal but only 37.1 percent think marijuana should be legalized and only 33.2 percent think the death penalty should be abolished.

****

Author's note: I have corrected a small statistical error in the original print version.

First published January 26, 2005, in the Chicago Free Press.

C. A. Tripp's posthumously published book The Intimate World of Abraham Lincoln has caused considerable controversy for its presentation of extensive historical and psychologically penetrating evidence that Lincoln was bisexual and probably predominantly homosexual.

Tripp argues: that Lincoln did not want to marry, married only for political purposes and the marriage was a disaster, that he far preferred the company of men to women, that early puberty like Lincoln's correlates with greater homosexuality, that Lincoln's known sleeping arrangements with at last three men (Greene, Speed and Derickson) and perhaps a fourth (Ellis) strongly suggest sexual intimacy and that he was infatuated with a fifth man (Ellsworth).

New York Times reviewer Richard Brookhiser cautiously accepted Tripp's view, as did historical novelist Gore Vidal writing in Vanity Fair Online. But in a 13-page "Respectful Dissent" at the end of Tripp's book, Lincoln scholar Michael Burlingame asserts that Tripp "does a disservice to history for the evidence Dr. Tripp adduced fails to support his case."

And in a vengeful 6,500-word attack published in the anti-gay Weekly Standard, Tripp's former editorial assistant Philip Nobile called the book "a hoax and a fraud," claiming that Tripp "massaged favorable indicators, buried negative ones, and papered over holes in his story with inventions."

Although not all of Tripp's interpretations are equally convincing, and critics have pointed to some apparent errors, the critics seem to make mistakes of their own, misread what Tripp wrote, pick on insubstantial disagreements and demonstrate strong resistance to the idea that male intimacy might involve anything like homosexuality.

But what would convince doubters like the Lincoln expert who told Tripp he would not believe Lincoln were gay even if Lincoln himself told him so? There are no photographs of Lincoln in bed with a man, no surviving letters discussing sexual episodes. So we have to search for previously overlooked indications in contemporary records and recollections.

But most of us are not scholars of the vast and contradictory literature about Lincoln so all we can do is see how well the objections of Tripp's critics hold up under careful scrutiny. So far, not well. Some examples: Tripp notes that immediately upon meeting Lincoln Joshua Speed invited him to sleep in the same bed with him, which Lincoln then did for four years. Critics object that it was common for men to sleep in the same bed for short periods or when traveling. Tripp himself explicitly acknowledges just that fully four times (pp. xxix, 30, 47, 128), but Tripp adds, "though to stay on for years was not."

Tripp says that Speed was the only person on whom Lincoln "repeatedly lavished his most personal and most endearing 'Yours forever' " in his letters. Critics countered that Lincoln used the closing in letters to six other men. But Tripp's point is that Lincoln used it "repeatedly" with Speed but rarely with others - and never with women.

Citing a comment about Lincoln's lanky frame by a man who met him when Lincoln was 10, Tripp places Lincoln's puberty at a remarkably early 9 or 10, and points out that Kinsey's found that men with very earlier puberty had higher rates of homosexuality.

Nobile complains that Tripp's source is unclear about the age for Lincoln's sudden growth. But the chart on page 35 shows little difference in the incidence of homosexuality between men who reached puberty at ages of 10 or 12, so even if Tripp misread his source, his point remains valid.

Billy Greene told an early Lincoln biographer that he thought Lincoln was "well and firmly built: his thighs were as perfect as a human being could be." The two men regularly shared a cot "so narrow that when one turned over the other had to do likewise," Greene said.

As the critics argue, Tripp may over-interpret Greene comment about Lincoln's thighs as indicating a preference for femoral intercourse. But the sleeping arrangement itself implies close intimacy. And how often do heterosexual men comment on another man's "perfect thighs"?

Contrary to the critics, Tripp makes no claim that Lincoln had sexual contact with the "definitely and explicitly heterosexual" Elmer Ellsworth. But Lincoln was clearly infatuated, probably in love with him. That is as significant in assessing Lincoln's orientation as sexual contact.

Lincoln had "a special interest" in Ellsworth, one friend wrote, intrigued to lure him to Springfield and called him "the greatest little man I ever met." On becoming President, Lincoln obtained preferential assignments for him and when Ellsworth was killed early in the Civil War Lincoln was inconsolable. Finally, it is reliably reported that Lincoln particularly befriended one of his security detail, David Derickson, and often invited him to share his bed - when Mary was out of town. But Lincoln and his wife slept in separate bedrooms, so Lincoln cannot have just wanted to remedy an unaccustomed solitude in bed. He must have wanted Mary not to notice.

First published January 19, 2005, in the Chicago Free Press.

In a vulgar and half-crazed speech delivered at New York's Cooper Union shortly after last November's presidential election, playwright and drama queen Larry Kramer pronounced the gay-rights movement "Dead." Dead. Deceased. Over. Finished.

But a funny thing happened on the way to the funeral: The state of Illinois passed a gay nondiscrimination law. It was as if the corpse suddenly sat up and started waving a cheery hello to the mourners.

On January 10, the Illinois Senate passed the bill by a vote of 30-27. It was the bare minimum necessary for passage, but winning with the minimum votes is a lot better than coming up one vote short of the minimum. In politics, as Eisenhower pointed out, there are no moral victories. You either win or lose.

The next day the Illinois House passed the bill by a vote of 65 to 51, well over the minimum votes necessary, and Governor Blagojevich, as promised, signed it expeditiously on January 21.

One might notice a few things in passing that offer lessons for other states less far along. The law represents the culmination of some 30 years of effort by successive teams of activists starting in 1974 when the Illinois Gay Rights Task Force (then so-named) was formed to work for passage of a nondiscrimination law. The bill's first sponsor was state Rep. Susan Catania, a Republican.

Passage was more or less hopeless during the '70s and '80s. The gay movement was young, desperately underfunded and understaffed. It received little support from a timid and politically passive community. And public opinion was far from taking seriously the idea of equality for gays.

Passage took years of painstaking lobbying in the legislature, public advocacy in the mass media, and a vastly increased number of gay people coming out. Over the years gays were significantly aided by conscientious reporters and supportive columnists in the print media such as Jean Latz Griffin and Eric Zorn at the Chicago Tribune, and Tom Brune, Howard Wolinsky and Neil Steinberg at the Sun-Times - and unnamed editorial writers at both papers.

But even more, passage required a well-funded and fully staffed political organization created by Equality Illinois, able to help legislators win primaries and elections, able to create political obligations, able to generate multiple thousands of letters, calls and e-mails to legislators. Politics, we are reminded, has little to do with what is right and everything to do with political power.

In the end, the law was passed in the first legislative session in which Democrats controlled both chambers of the legislature and the governorship. Although earlier GOP governors, moderates all, had said they would sign the bill, conservative legislative leaders kept the measure bottled up.

And the bill was approved after the November election, not before, so legislators felt less vulnerable. Three GOP senators and 12 GOP House members joined the majority of Democrats in voting for the bill. Without mentioning any names, it actually helped to have a crazed loony or two on the other side.

But someone might object that one swallow does not make a summer. Well, I hate to sound like Little Mary Sunshine. Gloom and doom always seem so much more profound. And alarm always sells well to people whose egos depend on the feeling that they are significant because they are threatened. But here, more briefly, are other signs of gay progress in January alone.

• The publication of the late C. A. Tripp's long-awaited book The Intimate World of Abraham Lincoln, arguing that Lincoln was predominantly homosexual in orientation, even if it does not convince everyone nevertheless decisively alters the landscape by raising the issue in a thoroughgoing way. Reviewing the book for the New York Times, conservative National Review senior editor Richard Brookhiser seemed to accept the general thrust of Tripp's argument. Consider the impact of the book on high school students doing reports on Lincoln or projects on the Civil War.
• Responding to the urging of New York City Comptroller William C. Thompson, Jr., who acted on the basis of stocks held by the city's pension funds, six more Fortune 500 companies indicated that they would include sexual orientation in their nondiscrimination codes - United States Steel, Alcoa, AllTel, Harrah's Entertainment, Owens-Illinois and Coventry Healthcare.
• Bishops of the Episcopal Church of America, responding to theologically untutored, fundamentalist Anglicans in third world countries, said they "deeply regret" not, mind you, having consecrated an openly gay bishop, but the fact that their doing so caused "pain" to some people. In other words, "We're sorry if you are upset." Clearly they felt they were in a strong theological and institutional position and, unlike feckless Anglicans in Britain, were unwilling to back down.
• A study panel of the Evangelical Lutheran Church of America, with an eye to the controversies embroiling Episcopalians, recommended that their church maintain its current policy forbidding same-sex union ceremonies and non-celibate gay clergy, but should "tolerate" (i.e., allow) churches and pastors that practice otherwise. In effect, this gives a green light to speeded up "doctrinal change from below."

This column honors the memory of Al Wardell, valued friend and long-time head of the Illinois Gay and Lesbian Rights Task Force.

First published December 8, 2004, in the Chicago Free Press.

Two current court cases go far to illuminate the old adage "Be Careful What You Wish For" because, no matter whether it's welcomed by liberals or conservatives, a decision they won yesterday may come back to haunt them today or tomorrow.

A few years ago in a case called Boy Scouts of America v. Dale, the U.S. Supreme Court upheld the right of the Boy Scouts to expel Scout leader James Dale because his homosexuality conflicted with what the Boy Scouts suddenly discovered was their fundamental value of heterosexuality. The court said that organizations may legitimately exclude people whose conduct or beliefs conflicts with the organization's values and its public message.

Many conservatives welcomed the decision because it enabled a popular organization to uphold its values by excluding people (gays and atheists) whom conservatives, too, regarded as immoral.

But then on Nov. 29, the Third Circuit Court of Appeals in Philadelphia ruled in the case of FAIR v. Rumsfeld that the so-called "Solomon amendment," which prohibited colleges and universities from receiving federal funds if they bar military recruiters from campus because of the military's anti-gay policy, violated the schools' First Amendment right to exclude groups they considered discriminatory.

The precedent the court cited was Dale: "Just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout Oath, the law schools (that brought the case) believe that employment discrimination (as by the military) is inconsistent with their commitment to fairness and justice," the court said.

In short, law schools have a right, in the first place, not to associate with discriminatory organizations like the military. But in addition, the court ruled, pressuring the schools to allow such discriminatory groups on campus interferes with the schools' ability to convey the message that discrimination is wrong.

So of course conservatives who had been gleeful about the Dale decision are upset that the precedent Dale established was being used to give other organizations the same freedom from government interference that they wanted for the Boy Scouts.

Then on the same day, the U.S. Supreme Court heard oral argument in the case of Raich v. Ashcroft, involving the right of patients to use marijuana for medical purposes when recommended by their doctor and state law allows the practice. Medical marijuana is not an inherently gay issue, but enough gay men with AIDS find marijuana helpful that it is of gay interest, at least.

This particular case was brought by two women who used medical marijuana, one who grew her own, the other who received it free from friends.

The Ninth Circuit Court in San Francisco held that since the women's activity was not commercial nor did it cross state lines, it was not covered by Congress's constitutional authority to regulate interstate commerce, so federal efforts to prohibit the women's activity were unconstitutional. That decision was welcomed by liberals, who are generally sympathetic with medical marijuana, if not full drug decriminalization.

The women's case was argued before the Supreme Court by distinguished libertarian law professor Randy Barnett of Boston University. Using the same argument that was successful with the Ninth Circuit, Barnett told the court that the prohibition of "activity that is non-economic and wholly intrastate" was not essential to the federal government's regulatory functions.

But according to the New York Times, the justices seemed doubtful about that argument and seemed to accept the federal government's claim that the case was similar to a notorious 1942 case called Wickard v Filburn, which held that under the Commerce Clause the government could regulate the amount of wheat a farmer grew for his own use on his own farm.

As the argument went, all wheat production took place within a "national market" and if the farmer had not grown his own wheat, he would have to buy it from someone else, which would be commercial activity. So by not engaging in commerce, the farmer was engaging in commerce. Judicial sophistry has seldom risen to such heights. George Orwell, call your office.

To be sure, we could say that the Court was gripped by wartime hysteria. And we can recall that the Supreme Court had been thoroughly cowed by President Roosevelt's court packing threats of a few years before. But the Wickard decision was gleefully welcomed by liberals as confirming the right of the New Deal to centrally direct people's economic activity.

But sadly for medical marijuana users, Wickard is still the law. Barnett was probably itching to tell the Court frankly that it should once and for all overrule Wickard, as indeed it should. But Barnett's obligation as the women's advocate was to make the most palatable case to the current mix of justices and that required trying to evade Wickard by distinguishing his case from that one.

If, as likely, the women lose, liberals who once celebrated a ruling that increased government control of people's lives may well rue a decision now used to prohibit activities they sympathize with.

The Supreme Court should affirm both appeals court decisions. Unfortunately, the present Court will probably find ways to reverse both.

First published on Nov. 17, 2004, in the Chicago Free Press.

Many gays and lesbians, even after two or three weeks, are all too obviously having trouble coming to terms with the results of the national election and state ballot initiatives prohibiting gay marriage.

As National Gay & Lesbian Task Force director Matt Foreman said at a post-election conference in St. Louis, "There is hurt, there is bewilderment, there is trauma, there is betrayal." No doubt - and all sorts of histrionic behavior like wailing and moaning and whining and finger-pointing and victimhood-clutching and enemy-mongering as well.

Well, some people - and you know who you are - need to get a grip. We have what bureaucracies like to call a "situation," meaning a serious problem, and wailing and moaning dissipates energy that needs to be channeled into productive effort.

It is not as if there was reason to doubt that 11 anti-gay amendments would pass. Nowhere did opposition poll at 50 percent or more, and polls usually overstate gay supportive sentiment because people lie about politics almost as much as they do about sex.

But it was news to Kate Kendall, director of the National Center for Lesbian Rights, who told the St. Louis conference, "I had thought as a matter of just public education that the nation was further along," Well, it's probably a little hard to judge those things if you live in San Francisco.

As for the national election, it was plausible to predict as far back as July that Bush would win, although those predictions were denounced by the pure of heart as loathsome, shameful and reprehensible. Yes, by all means let us protect our illusions from awareness of how the world really is.

People living in the urban bubbles insisted they knew Bush voters in 2000 who were switching to Kerry in 2004 and none switching the other way. But at the same time the Wall Street Journal's "Best of the Web Today" column was hearing about heaps of switches from Gore in 2000 to Bush in 2004. And indeed Bush in 2004 won 8.6 million more votes than he did in 2000 - obviously a large number of switches as well as new voters.

We can draw three quick conclusions:

1. The fact that with just 140,000 more votes in Ohio Kerry could won in the electoral college even though he would still have lost by more than 3 million votes nationwide will cool Democratic ardor to abolish the electoral college.
2. Even if every gay voter who told exit pollsters he or she voted for Bush had voted for Kerry, the results would have been the same. Even in Ohio the result would be the same.
3. Whether or not Karl Rove's succeeded in drawing 4 million new evangelical voters to the polls, it seems likely that concerns about terrorism and Islamic fanaticism played a bigger role in Bush's victory than anti-gay evangelicals.

In any case, there is a more important conclusion to draw from the election. Many years ago, after an election that portended a move in the opposite direction from policies and values she believed were just and moral, the revolutionary philosopher and novelist Ayn Rand wrote an essay to hearten her dismayed colleagues. She titled it, "It Is Earlier Than You Think."

Rand's point was that the election showed that her and her colleagues' efforts to promote their views had not been sufficient. They needed to continue working to make their ideas part of the national culture, to reach new people, to present their ideas through new means, and offer clear reasons. And this process would take far more time than they had initially expected or hoped.

For Rand, in short, the vote was less a defeat than a valuable index of how much more work they needed to do and where they needed to put their effort.

In our case, it seems clear that same-sex marriage, as distinguished from civil unions, is not going to happen very fast. Legislatures will not enact it and court decisions mandating it will be reversed by popular referendums in almost every state. To hope for gay marriage with the full panoply of federal rights any time in the next 20 years seems a pipe dream.

But some rights are better than no rights. Most European countries began with partial civil unions and have moved by steps toward gay marriage. The same thing is happening now in California where each legislative session adds new rights to the civil unions legislation. And in Vermont, where voters would likely have overturned gay marriage, civil unions were grudgingly accepted and now command considerable public support.

So the best tactic seems to be to get a law passed with some single component of partnership rights, and then add to it over time as public sentiment accustoms itself to the change.

But this can only be accomplished in tandem with unceasing, labor intensive, and time-consuming personal and personalized outreach programs designed to familiarize more people with our lives, ourselves, and our positive contributions to the wider community.

First published on Nov. 10, 2004, in the Chicago Free Press.

People who like to read post-election analyses of the voting, the campaigns, candidates, exit polls, etc., are no doubt heartily sick of them. People who don't care about post-election analyses won't read any at all, including any offered here. So let's move on.

Clearly we gays and lesbians present a problem for the Democrats - and for the Republicans. Here's why.

We are a problem for the Democrats because they need to continue receiving the large percentage (75-77 percent) of gay votes in presidential races (lower in congressional races). The gay vote (4 percent) was larger than Asians (2 percent) or Jews (3 percent) and two-thirds as large as the Latino vote (6 percent).

And they need gay campaign contributions. Gays contributed copiously first to the Dean and then to the Kerry campaigns. Figures are hard to come by, but it seems safe to say that given what we know about the economic profiles of minority communities, it is likely that gays contributed more money than either African-Americans or Latinos.

Further, Democrats need gays in order to retain their status as liberal or progressive. But equally important, nothing gays want - marriage/civil unions, military access, employment nondiscrimination - requires significant government expenditure, so in a time of huge budget deficits, doling out small doses of equality for gays is a cheap way to act progressive.

So the Democrats can hardly afford to dump gays from their coalition or continue to de-emphasize them the way Kerry did during the convention and campaign. Gays might put up with that once, accepting the tactical rationale. But even gay Democratic Party functionaries must have chafed at the ignoring of gay issues, and excuses will become unacceptable, particularly since Kerry lost anyway.

But gays are a problem for the Republicans as well. That is because there has been and continues to be a growing tolerance of gays and gay relationships, a tolerance that gradually transforms itself into acceptance - and then, with respect to gay-related policies - approval.

Support for gays in the military keeps increasing. Support for gay marriage stands at 25 percent and for civil unions 35 percent for a total of 60 percent who support recognition of gay relationships. Support for nondiscrimination laws approaches 80 percent.

The reasons are too well-known to do more than list: Ongoing coming out by gays, high rates of acceptance by young people, the growth of partnership benefits in private industry, the visibility of viewer-friendly gays in popular culture, gay gains internationally and growing acceptance in some U.S. religions.

This means that overt homophobia by the GOP will have a diminishing appeal, so the GOP will find itself forced to defend a steadily shrinking range of anti-gay positions. As this column repeatedly reminds people, culture shapes politics, not the other way around.

Less than a decade ago, in 1996 Bob Dole returned a check from the Log Cabin Republicans. In 2000 Bush said nothing about civil unions. But by 2004 although Bush opposed gay marriage, without actually endorsing civil unions he twice said they would be OK if states wanted them. Is there a consistent direction of movement here? GOP political strategists can read polls, too.

Still, coping with gays will not be easy for either party. There seems to be a view among pundits that to remain competitive Democrats need to talk more about values, virtues, morality. If so, fine. Most of us are for those things, too. But Democrats will need to find a way to talk about them in ways that include gays and gay relationships: tolerance, a culture of civility, respect for individual differences and the right of all citizens for an equal chance at happiness.

And Republicans surely know that if they want to appeal to increasingly gay-friendly voters but retain evangelicals, they need to learn to talk of respect for all citizens, neighborliness, promoting the productive contributions each citizen can make, freedom from government obstacles to happiness and the social value of stable relationships.

These languages are not very different. And both are emphatically American.

Let me conclude with a speculation about that 4 percent of the vote that was gay (or GLB). Assume that both 2000 and 2004 results were 4 percent. Note that the popular vote increased from 105 million in 2000 to 115 million in 2004, an increase of 10 percent, including an apparent 10 percent more gay voters.

But if you assume, as I do, that the (openly) gay vote is reasonably well-educated and politically alert and have already been voting in fairly high percentages, then the apparent increase of gay voters is at least partly attributable to an increase in the number of gays and lesbians who acknowledged being gay. No doubt that trend will continue.

And a final thought: How can fundamentalists and pseudo-scientific "researchers" continue to claim that gays are only 1 to 2 percent of the population when just the openly gay vote is 4 percent? That would mean every openly gay person must be voting two to four times.

First published on October 6, 2004, in the Chicago Free Press.

As of early October when this is written there seems little reason to alter my early July prediction that President George W. Bush will win reelection. If Senator John Kerry wins, I will not be unhappy - or no unhappier than if Bush wins - but I will be surprised.

Still, there is no harm in thinking about what a Kerry victory might mean for gays and lesbians. This is not to say there are not other issues than gay ones, even issues that may be more decisive for many gay voters. But other writers have discussed those elsewhere.

There seems little doubt that a Kerry victory, unlike a Bush victory, would tend to facilitate legal and social equality for gays and lesbians. Tend to facilitate; not provide. Both the Kerry campaign and its auxiliaries at the Human Rights Campaign have exaggerated the positive impact of a Kerry victory, unduly raising expectations, but it is true nonetheless, if to a lesser degree.

Kerry announced his opposition to the Federal Marriage Amendment, though he avoided the Senate vote on it. (He might say: "I was against it before I didn't vote against it.") So a Kerry victory would remove one strong source of arm-twisting advocacy when it is proposed in the next Congress. With a Kerry administration, because of any president's ability to buy and trade favors, that is an issue we would have help fighting and the amendment would likely lose by more than last time.

Kerry's support for state constitutional amendments barring gay marriage, as in Massachusetts, is troubling. Presumably he takes that position to balance his opposition to the federal constitutional ban. (He might say: "I favor denying rights at the state level, not the federal level.") But Kerry need not have taken that position.

Even if he did not feel he could safely oppose state amendments, he could have finessed the issue by saying, "I think we should leave that issue up to voters. I trust the voters, don't you?" Gays may believe that the right to marry should not be left up to voters, but Kerry's saying so would have been better than supporting state amendments.

Still, leaving the issue up to states allows gays a chance for eventual victories in a few states and the possibility of state-based gay marriage "demonstration projects." In any case, it will be easier in the future to repeal state constitutional bans than it would be to repeal a U.S. constitutional amendment.

But marriage is not the only gay issue. Despite his opposition to gay marriage, Kerry says he supports civil unions such as exist in Vermont and may be approved in Massachusetts. That suggests that a Kerry administration would support domestic partner benefits for federal employees and might provide mild encouragement to states to pass civil union laws.

Although Kerry has made troubling comments about "unit cohesion," he seems to support repeal of the military's ban on gay personnel. His administration could press Congress to repeal the ban, urge the military to redefine sodomy as forced sex rather than specific acts, signal courts that overturning the ban would not be resisted and publicly defend ending the ban as a wartime necessity.

The administration would support enhanced hate crimes laws and gay-inclusive non-discrimination laws. Even if those laws do not pass, public statements supporting them by a President Kerry and administration officials could promote more favorable public attitudes toward gays. There would be more support for candid and less-moralistic AIDS education. The prudish moralist Attorney General John Ashcroft would be excreted.

Many gay issues from gay marriage to the military's gay ban are already or will be taken up by the federal courts and we would doubtless get a friendlier hearing from federal and Supreme Court judges appointed by Kerry than ones appointed by Bush. Although Kerry appointees would not inevitably be pro-gay nor Bush's inevitably anti-gay, Kerry is less likely than Bush to appoint another Scalia or Rehnquist.

The problems with all rosy scenarios of gay progress under Kerry are twofold. One is, despite Kerry's relatively friendly attitude, his seeming lack of zeal on gay issues. The other, more important, is that both the House and Senate are likely to remain in Republican hands. Even if Democrats regained the Senate, the House is virtually certain to remain Republican, blocking most gay-friendly legislation.

But the chief effect of a Kerry victory would be less a matter of passing legislation than of changing the tone of public discourse about gays and lesbians. A Kerry administration would foster a friendlier political/social climate for us to continue our advocacy efforts. That is no small gain. We can achieve progress in public understanding more easily if our own government is not fighting us.

The other thing a Kerry victory would do is force the Republican party to reassess its Karl Rovian strategy of viewing Christian evangelicals as its electoral base and bending all efforts to increase their voter turnout by promoting religion and moralism and treating gays as a toxic element in the body politic.