IGF CultureWatch

Sonja West, an associate professor at the University of Georgia School of Law and a former law clerk to Justice John Paul Stevens, writes at Slate on why Justice Kennedy might rely on gender discrimination law to find a constitutional right to same-sex marriage:

The gender-discrimination framework may appeal to Kennedy in other ways, too. During oral argument, he expressed worry about the court moving too far too fast. … This approach could help Kennedy with these concerns. He doesn’t have to break new legal ground by declaring a constitutional right to be free from discrimination based on sexual orientation. Instead, Kennedy could turn to the much more developed path of our constitutional protections against gender discrimination. The outcome (constitutional protection for same-sex marriages nationwide) would be revolutionary, but the basis for it (gender discrimination) would be familiar.

It’s probably wishful thinking at this point. But too bad this line of argument wasn’t among those presented before the court.

Leaders of the Southern Baptist Convention at their annual gathering overwhelmingly backed a resolution expressing “continued opposition to and disappointment in” the Boy Scouts of America for allowing the participation of openly gay Scouts, and warning that this may be the first step toward “future approval of homosexual leaders” in the BSA.

It would be grand to see protestors at Southern Baptist gatherings holdings signs that say “Move to Russia,” where those assembled would find a regime much more conducive to their worldview. For just as they corrupt the gospel message of God’s unbounded love, so are they blind to the essential character of America as a bastion for liberty.

From a new report by the College Republican National Committee (on p. 65) on young voters:

In the survey, we sought to test the extent to which opposition to same-sex marriage constituted a “deal breaker.” We did this by asking respondents how likely they would be to vote for a candidate who opposed same-sex marriage while also holding the same positions as the respondent on taxes, spending, immigration, and defense. Because respondents had been asked earlier in the survey to provide their position on these issues, the online survey was able to customize this “ideal candidate” for each respondent based on his or her personal positions.

The answer should concern Republicans, but not completely discourage them from reaching out to young voters. Among those respondents who said that same-sex marriage should be legal (a full 44% of young voters), half said that they would probably or definitely not vote for a candidate with whom they disagreed on same-sex marriage, even if they were in agreement on taxes, defense, immigration, and spending. But among those young voters who took the “let states decide” approach to marriage (some 26% of those surveyed), only 12% viewed opposition to same-sex marriage as a reason they probably or definitely would not vote for a candidate.

Taking the sample as a whole, about a quarter (26%) of young people say they’d probably or definitely not vote for a candidate who opposes gay marriage even if they were in agreement on many other issues. That opposition to gay marriage is a “deal breaker” to one out of four young voters represents neither a hopeless situation for the GOP nor a great one. It instead raises the challenge: how can the GOP expand its appeal on the issue, or win on issues of greater issue salience so that gay marriage is not a “deal breaker” for a large number of young voters?

As David Boaz blogs, the report found:

young voters are very much against excessive government spending (though they do support higher taxes on the wealthy) and are strongly in favor of gay marriage. They want to reform entitlements but see the Republican party as “closed-minded, racist, rigid, old-fashioned.”

What cannot be sustained, won’t be.

A new national survey by the Pew Research Center confirms, In Gay Marriage Debate, Both Supporters and Opponents See Legal Recognition as ‘Inevitable.’

Relatedly, Sean Trende of the conservative-leaning Real Clear Politics site, speaking on a panel at the liberal-leaning Brookings Institute observed of the Pew findings:

The argument was no longer “let people do what they want.” It was “hate is not a family value.” The presentation of gays in media and entertainment no longer focused on sex… but on love. This also coincided with a reality for many middle Americans of sons and daughters, brothers and sisters, cousins, friends and co-workers with “lifetime companions” who came to holidays, weddings, parties, and funerals. Gay rights was embedding itself with the bourgeoisie. …

The bottom line here is that public attitudes on marijuana and gay rights are shifting, not because the public is becoming more liberal or libertarian. Rather it is the proponents of the issues who are changing, framing those issues in what we might call a small “c” conservative light. And indeed, on issues where that transformation has not occurred [abortion, prostitution, etc.], public attitudes haven’t shifted much at all.

Much brouhaha over Michelle Obama being heckled by a lesbian activist urging her to press the president to fulfill his forgotten campaign promise to issue an executive order requiring federal government contractors to have nondiscrimination policies toward LGBT people. NPR reports that many in the African-American community are cheering Michelle for bluntly putting down the protestor:

News of the confrontation blazed through social media, especially among black posters. Jason Johnson, a professor of political science at Ohio’s Hiram College, says there’s a reason for that.

JASON JOHNSON: Well, there’s a belief and a very reasonable belief on the part of many supporters of Barack Obama, especially in the African-American community, that the president and Michelle have been subjected to an unprecedented level of rudeness and disrespect and incivility. …

[NPR’s KAREN GRIGSBY BATES]: Whatever it was, the prevailing response among black users of social media was mostly words like finally and yes, both followed by lots of exclamation points.

Lost in much of the non-lesbigay blogosphere is the fact that loud “in your face” protests were once a tactic by civil rights activists to push the government to end its anti-black discrimination.

More. Jared comments it’s not that the pro-Michelle reaction of many African-Americans was anti-gay per se, but rather that their rejection of “equivalency” between the black and gay fight for equal employment protection allowed them to cheer Michelle for putting the lesbian protestor/heckler in her place. It’s a subtle but revealing distinction.

Furthermore. Ellen Sturtz tells “Why I Confronted the First Lady“:

Some have said that the first lady wasn’t a proper target because she is not an elected official. However, time and again, the first lady has come to our community and asked us to “max out” on our contributions to the DNC. In fact, she had just made the same request of several hundred LGBT attendees, days after Senate Democrats had refused to include same-sex binational couples in their immigration reform bill. Despite the Democratic Party happily cashing LGBT checks, I have not seen the Obama administration “max out” on the myriad ways that the government could protect the LGBT community.

Indeed.

The movement for marriage equality is highlighting the underlying strengths and weaknesses in many national cultures.

James Kirchick discusses what's happening in France, where same-sex marriage was passed by the Socialist-led parliament but unleashed massive protests by Catholics and social reactionaries (evoking reminders of Vichy fascism).

Ned Simons looks at Britain, where the leadership of all three major parties (Conservatives, Liberal and Labour) support marriage for all, although a majority of Conservatives MPs and peers (in the House of Lords) remain opposed, as do the Catholic and Anglican churches, even though the Anglicans, who are the official state church in England, would be legally prohibited from conducting same-sex marriages (other religious groups would have the opportunity to opt-out). That's not enough for UK Muslims, who also want to be barred from same-sex marriages as well.

IGF contributing author Walter Olson and his husband, Steve Pippin, authored a piece on the Huffington Post, “Our American ‘Modern Family’ Is Now Old Hat.” They conclude:

In Europe, many countries were much faster than the United States to enact gay marriage into law. Yet those same countries have been much slower and more reluctant to ratify parenthood by gays, and adoption—over there often administered by monolithic state agencies—remains off limits even in the Denmarks and Norways. Part of the difference, I think, is that while getting to marriage requires a change in law—and we in America tend to take our time on that—founding a family is seen as something that every American has the right to go out and do. And so by the time our “family policy” experts noticed that gays were becoming parents on purpose, it had already become a substantial social phenomenon, hundreds of thousands of families strong.

It’s a contradiction, and yet it’s not: The United States is seen as distinctively “conservative” among the world’s great nations, yet it’s also the world’s arch-incubator of innovative social change. Don’t wait around for permission; it’s not as if anyone’s stopping you! If it’s worth doing, go for it, and let the law catch up in its own time. It works, again and again. And it’s so American.

The Illinois house tables marriage equality. We expect the GOP to cater to its anti-gay base. But we put up with a lot of extremely bad policy from the Democrats for the sake of their support on gay equality issues. However, let’s not forgot there is still a significant anti-gay faction in the Democratic party. They can delay the advancement of legal equality, but not block it:

Gay and lesbian couples who want to legally marry in Illinois will have to wait. It’s a delay that was met Friday with tears, anger and confusion. His voice breaking with emotion, state Rep. Greg Harris (D-Chicago) tearfully said Friday that he would not call for a vote on his bill legalizing same-sex marriage in the closing hours of the spring legislative session.…

Stubborn resistance within the House Black Caucus, a 20-member bloc of African-American lawmakers who have faced a withering lobbying blitz against the plan from black ministers, has helped keep Harris’ legislation in check, with several House members still undecided.

There are a variety of opinions in the blogosphere about what went wrong. The most forgiving view is that African-American legislators just need more time to explain the issue to their constituents. Others contend not having a vote let these legislators off the hook (many members of the caucus were officially “undecided” but clearly party leaders knew they lacked enough votes in the overwhelmingly Democratic house).

Support for black civil rights by white lawmakers often took courage since it meant angering many of their constituents; we should expect the same from African-American legislators when it comes to support for gay legal equality.

Given the political divide, in many elections the choice is between a marriage-equality opponent or a regulation-and-tax hiker, both being bad options. So it’s not surprising that an annual ranking of state business climates shows liberal-governed states that recognize same-sex marriage tend to have worse economic outlooks. No state with marriage equality made the American Legislative Exchange Council’s ranking of the top 10 states with the best economic outlooks. And seven states that do recognize same-sex marriages are among the bottom 10 states with the worst economic outlooks: Maryland (35th), Maine (41st), Connecticut (43rd), Rhode Island (45th), Minnesota (46th), New York (49th) and Vermont (50th).

One example: Maryland has marriage equality while its neighbor, Virginia (5th in terms of economic outlook), has a constitutional amendment banning gay marriage. Last year, libertarian website Reason.com looked at how Maryland’s tax rates are driving jobs to Virginia.

Many moderate and center-right gay voters give their support to the party of big government because the party of lower taxes/higher growth doesn’t want our votes.

More. Facebook friend James Peron says: “I think I would say that they support the party of big government because the other party of big government doesn’t want our votes. The real difference is what they want big government ‘big’ over.”

Also, Rick Sincere (he’s on our blogroll) suggests that a better measure than ALEC’s rankings may be the Mercatus Center’s “Freedom in the 50 States,” which looks at both economic and personal liberty, including same-sex marriage and domestic partnership recognition (Virginia ranks 8th overall, Maryland 44th despite marriage equality as it’s bad on personal freedom in a number of other areas).

Furthermore, from the comments:

Houndentenor: “As I recall the economy grew quite nicely during Clinton’s presidency.”

Jared: ” Yes, having a Democratic president and a GOP-controlled Congress has often proved the sweet spot in limiting government over-reach. Not so good for advancing gay equality, but often has led to much more sensible economic policy.”

From The Atlantic, an interesting take on what gay and lesbian couples teach straight ones about living in harmony:

But what if the critics are correct, just not in the way they suppose? What if same-sex marriage does change marriage, but primarily for the better? For one thing, there is reason to think that, rather than making marriage more fragile, the boom of publicity around same-sex weddings could awaken among heterosexuals a new interest in the institution, at least for a time. But the larger change might be this: by providing a new model of how two people can live together equitably, same-sex marriage could help haul matrimony more fully into the 21st century.

I like the fact that this is not a knee-jerk anti-gender but women are better piece. Writer Liza Mundy takes note that “gay marriage can function as a controlled experiment, helping us see which aspects of marital difficulty are truly rooted in gender and which are not.” And among her rules for a happy marriage, “When it comes to parenting, a 50-50 split isn’t necessarily best.” As Mundy writes:

As Martha Ertman, a University of Maryland law professor, put it to me, many families just function better when the same person is consistently “in charge of making vaccinations happen, making sure the model of the World War II monument gets done, getting the Christmas tree home or the challah bought by 6 o’clock on Friday.”

In the end, “Rather than setting an example that fathers don’t matter, gay men are setting an example that fathers do matter, and that marriage matters, too.”

Of course, first the struggle to be able to marry must be won. The Washington Post looks at recent, dramatic victories, but also the long road ahead. Under the best of scenarios (assuming, as most do, that the Supreme Court will repeal the most onerous aspects of the Defense of Marriage Act but not impose marriage equality throughout the nation), 40 percent of Americans could live in states that allow gays to marry by the end of 2016. But after that, the road ahead will require overturning anti-gay-marriage constitutional amendments in conservative states.