IGF CultureWatch

Trust-worthy court-watchers seem to agree, the Supreme Court, based on the Justices questions and comments Tuesday morning, seems highly unlikely to use the challenge to California’s Prop. 8 to find a constitutional right to same-sex marriage. The hearings indicated that the court may be poised to find a lack of standing for the groups defending Prop. 8, which would (let’s at least hope) leave in place a lower court ruling overturning it, which would (likely) restore same-sex marriage in the Golden state, but not in any other states.

Illya Shapiro at Cato at Liberty:

we’re left with [the] two most likely scenarios: (1) the “liberal” justices potentially joining Chief Justice Roberts on a ruling that the petitioners lack standing, which would probably vacate the Ninth Circuit ruling but leave the district court’s ruling against Prop 8 in place; or (2) no majority because Justice Kennedy (and perhaps others) would prefer to dismiss the case as improvidently granted (a “DIG” in insider terms), which would leave the Ninth Circuit’s ruling in place – so Prop 8 would also remain struck down, albeit on narrower grounds than in the first scenario.

Tom Goldstein at Scotusblog:

“Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.” …

Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

At this point, it looks like the grand hopes of a sweeping ruling granting marriage equality throughout the United States is not to be. Next up on Wednesday, the Defense of Marriage Act.

More. From the Cato Institute’s Roger Pilon, The Journal led astray by same-sex marriage, taking issue with the Wall Street Journal‘s editorial urging the Supreme Court to uphold DOMA:

It is troubling that the same-sex marriage issue has led the Journal to subscribe to the mistaken jurisprudence that it so often rightly and powerfully condemns in those other areas, as when economic liberties are in the government’s crosshairs. Liberty is of a piece. The simple presumption of our Constitution is liberty, with government authorized and empowered to protect it, and obligated to offer compelling reasons for restricting it when that should be necessary. In recognizing rights, the Court is not “creating” them. It’s simply acknowledging that they were always there, even if we haven’t always lived up to our principles and recognized them, as clearly we have not. That’s not judicial activism. It’s simply the Court engaged in making explicit what was always implicit, even if we haven’t seen the matter clearly until now.

Furthermore. Walter Olson writes at the New York Daily News, in The high court’s marriage jitters, that “signs point to a cautious ruling.”

Jonathan Rauch seems to concur, as does Dale Carpenter, in the post above.

How sad. Iinstead of reaching out and forging broader alliances with those who are real or potential allies on the right, many on the LGBT left would rather serve their partisan masters. A particularly blatant case in point: the Gay & Lesbian Alliance Against Defamation, once again doing what so many LGBT activist groups do—working to keep conservatives and Republicans as anti-gay as possible.

Fox News anchors were courted by GLAAD to attend the group’s annual media awards hoop-la, and when they did, GLAAD issued a stinging denunciation of Fox News and its anchors for, among other things, attending the event. If the anchors hadn’t shown up, GLAAD would have issued a stinging denunciation. Which is all the more shameful, since the views expressed by Fox News anchors and commentators aren’t monolithic and are becoming better on gay issues. Or actually, maybe that explains GLAAD’s (and Democratic front group Media Matters, to which GLAAD seems beholden) going into attack mode.

Hint: For Media Matters, and through it GLAAD, it’s all about maintaining the power of the party.

More. GLAAD could learn a thing or two from John Corvino and Bruce Bawer, who actually care about winning over conservatives. Via this week’s Washington Post book review of Corvino’s “What’s Wrong with Homosexuality?“:

Many gay-marriage opponents sincerely believe their own rhetoric that they want to protect marriage rather than stigmatize gays. And taking this rhetoric seriously is one asset of Corvino’s book, resulting in a level of civility whose absence in our culture wars is not only unpleasant but often ineffective in changing minds.

From respected conservative legal theorist Michael McConnell, an interesting WSJ op-ed on DOMA: The Constitution and Same-Sex Marriage. He backs a federalist approach that finds a reasonable way to restore same-sex marriage in California (arguing that those seeking to void the district court ruling that threw out Prop. 8 lack standing to do so) while also getting rid of DOMA’s ban of federal recognition of same-sex marriages in states where they are legal, without imposing same-sex marriage nationally. That sounds like a decent solution (certainly, we could do much worse), avoiding a political backlash in southern and conservative states. Unless equal really does mean equal under the Constitution, whatever the backlash.

This New York Magazine report shows how it’s a fearsome muddle to get divorced when you’re married in one state but not in another. States have residency rules for divorce but not for marriage, so if you can only get divorced in a state that recognizes same-sex marriages but you live in on that doesn’t, then someone you may have broken up with years earlier may claim a legal right to make medical decisions for you and inherit your property. And if the Supreme Court ends federal marriage discrimination and nothing else, the not-quite ex could claim the beneficiary’s share of your Social Security. You also can’t move on and marry somebody else while residing in a non-marriage-equality state. That’s not good.

More. Via Slate, The Sexual Fetish of Gay Marriage Opponents: “Defenders of DOMA and Prop. 8 say marriage isn’t about love or parenting. It’s about coitus.”

Furthermore. Richard Epstein, thoughtfully, on Gay Marriage and the Libertarian’s Dilemma:

Though I am still uncertain of how I would come down in these two cases, in the interest of full disclosure, I did lend my help to the anti-DOMA team…. But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. Now, if he would only agree to return to the more general principle of freedom of contract embodied in Lochner v. New York as part of that decision, then it would indeed be a red-letter day for the Court.

George Will argues that the Defense of Marriage Act (DOMA) is an unconstitutional abuse of federalism and that:

Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.

More evidence of the changing wind: NFL players, rappers, conservatives among those supporting same-sex marriage.

Politico informs that, regarding Hillary Clinton, “the gay community adores her.” She recently announced her support for marriage equality via YouTube by “speaking directly to the camera without an interviewer who could ask follow-up questions on issues like the Defense of Marriage Act, which her husband signed.” Nevertheless, “Unlike [GOP Sen. Rob] Portman, who was castigated by some on the left for taking what was seen as a selfish position, Clinton—who in 2008 was against gay marriage—was praised.” And, of course, the Human Rights Campaign led the parade in terms of gushing.

Similarly, When ‘Yes’ isn’t enough.

More. Why support for gay marriage has risen so quickly:

Combine the fact that young people are heavily supportive of gay marriage and every generation is growing more in favor of legalization as they age and you see why the numbers on gay marriage have moved so quickly—and why they aren’t likely to ever reverse themselves.

Furthermore. Via Margaret Hoover, Slowly, GOP shifting on same-sex marriage:

Pro-marriage-freedom Republicans are on the right side of history and in time their courage and contributions will help erase the stain of bigotry that holds the conservative movement back and stops us from connecting to a rising generation of Americans.

Twenty years after the publication of A Place at the Table, our friend Bruce Bawer ruminates on the meaning of “gay culture”:

When gays, socially speaking, are in the process of being integrated into the mainstream, and when the cultural works created by and/or about gay people are no longer consumed exclusively or even mostly by gay people, what does this say about what gay culture has become? In what ways, moreover, has the mainstreaming of openly gay culture (as opposed to the covertly gay culture of the Noel Cowards and W.H. Audens that was always a part of the mainstream) changed the mainstream? These are big—and fascinating—questions, and the answers are elaborate and complicated.

The IGF blog (and the “Culture Watch” column that preceded it, syndicated in a few brave gay papers), had its origins in the gay culture struggles that Bruce has analyzed so well.

The Republican National Committee released a sweeping report aimed at revitalizing the party following its losses last November, noting that:

For the GOP to appeal to younger voters, we do not have to agree on every issue, but we do need to make sure young people do not see the Party as totally intolerant of alternative points of view. Already, there is a generational difference within the conservative movement about issues involving the treatment and the rights of gays—and for many younger voters, these issues are a gateway into whether the Party is a place they want to be.

If our Party is not welcoming and inclusive, young people and increasingly other voters will continue to tune us out.

This has not gone down well with many. Conservative columnist Byron York comments:

That is not a flat-out declaration that the RNC supports gay marriage— but it’s pretty close. In addition, RNC Chairman Reince Priebus, in introducing the report Monday, said Sen. Rob Portman, R-Ohio, had “made some pretty big inroads” into broadening the party’s appeal by declaring support for gay marriage last week. Again, the report’s position puts the RNC in danger of a breach with key grass-roots supporters.

That’s mild compared to what Rush Limbaugh had to say:

If the party makes [gay marriage] something official that they support, they’re not going to pull the homosexual activist voters away from the Democrat Party, but they are going to cause their base to stay home and throw their hands up in utter frustration.

Thus the battle lines are drawn, with action and reaction from the party. But who would have thought that the RNC itself would ever have taken such a bold step—not the LGBT progressives, who have written off the party as hopeless.

Sen. Portman’s dramatic reversal. Now all we need is 40 more Republican senators’ sons to come out.

In other news, CPAC may have banned GOProud, but its clear which way the wind is blowing.

More. Jennifer Rubin writes: “the question is not whether the GOP comes to terms with gay marriage, but when and how many elections it will lose along the way.” Indeed.

Furthermore. Via Michael Barone: Support for same-sex marriage crosses party lines. Or at least it now could, if there were a will to engage with libertarian conservatives rather than to just raise money for Democrats.

Still more. Again, via Jennifer Rubin:

Thirty years after Ronald Reagan was president, Republicans are still running on a tripartite alliance of social, fiscal and foreign policy conservatives. Alas, such candidates run on a myth; that coalition has splintered and what will replace it is far from clear. . . .

One approach would be to become the reform party on entitlements, education, health care, employee unions and even the Pentagon while being agnostic on social issues. Or the party could go fully libertarian leaving hawks and social conservatives adrift but gaining urban and suburban professionals and social liberals. Another formula would be to embrace pro-life, pro-immigration, strong-on-defense conservatives with a Tory welfare state that loses business conservatives but takes on working class and minority voters.

This battle must be engaged. Too bad the largest LGBT lobbies are cocooned up with their Democratic party commanders, working to keep the GOP as anti-gay as possible (e.g., HRC’s backing Democrats running against openly gay and gay-supportive Republicans).

The Washington Examiner’s Byron York asks, Will GOP’s new vision be shaped by Paul or Rubio? He reports that when they spoke this week at CPAC, Sen. Mario Rubio told Republicans “we don’t need a new idea” and declared that “traditions— traditional marriage, traditional values—are still good.”

In contrast, Sen. Rand Paul told the audience, crowded with his enthusiastic young supporters, “The GOP of old has grown stale and moss-covered,” and that “Our party is encumbered by an inconsistent approach to freedom. The new GOP, the GOP that will win again, will need to embrace liberty in both the economic and personal sphere.”

Rubio comes out of the party’s social conservative wing, while Paul’s base is the smaller but faster-growing libertarian wing nurtured by his father, former Rep. Ron Paul, who opposed the anti-gay federal marriage amendment and supported allowing gay people to serve openly in the military.

Paul has not endorsed marriage equality, but it’s clear his vision is one that gay equality advocates could work with. The battle in the GOP is now engaged.

Meet the new pope, same as the old pope:

Amid changing mores on sexuality, including same-sex marriage, Francis’ traditional views have clashed with cultural changes in Argentina. Before the nation legalized same-sex marriage in 2010, Francis called it a “destructive attack on God’s plan.”

In my view, declaring that you know “God’s plan” and that love and marriage for gay people isn’t part of it is the worst kind of blasphemy. Blind guides and pharisees still hold sway over the church of Rome.

An honest look at the Clinton administration’s support for the anti-gay Defense of Marriage Act, from former head of the Human Rights Campaign Elizabeth Birch:

…in the middle of my testimony before Congress on the constitutionality of this horrible law, the Clinton Justice Department, then headed by Janet Reno, had a letter delivered to the committee stating that, in the opinion of the Justice Department, DOMA was constitutional. (I was cut off mid-sentence as one of the more extreme house members read it aloud into the room with glee.)

…beyond signing the bill into law, the 1996 Clinton campaign decided to run ads on Christian radio bragging that DOMA had become the law of the land. …it was the president himself who wanted to run them and asked in anger whether he had any say in the matter.

President Clinton took DOMA out of play by announcing quickly he would support it and signed it into law near midnight on Sept. 21, 1996. … The Clinton campaign went on to use the LGBT community like a cash machine for reelection.

It’s all politics. And all politics is by its nature corrupt.