IGF CultureWatch

Our friend Dale Carpenter along with several other libertarian-leaning, nonleftist law professors filed an exemplary brief arguing that DOMA is unconstitutional under federalism principles:

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis. Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power. It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers. Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.

An array of briefs have now been filed from left-progressive to libertarian and center-right. That’s laudable. But let’s recall how the libertarian Cato Institute’s amicus brief in Lawrence v. Texas was the one that Justice Kennedy cited in his opinion overturning state sodomy laws (note: he didn’t cite the briefs from NGLTF or HRC).

As in Lawrence, Justice Kennedy (and perhaps, now, even Alito and Roberts) aren’t going to be swayed by the bigger-government, Democratic party-aligned progressives. But it’s still good to have them onboard.

More. Here is analysis that includes a link to the Cato Institute’s brief in favor of marriage equality.

Furthermore. James Kirchick writes:

At the time of the Stonewall Riots in 1969, few would have predicted that a movement predicated upon sexual liberation would mature into one calling for the right to get married and serve openly in the armed forces.

Some liberal gay activists, suffering from a bout of historical amnesia, do not like what they see as an attempt by conservatives (gay and straight) to claim the cause of marriage equality as their own.

Still more. Not a constitutional argument, but a powerful video ad from Republicans United for Freedom.

The American Conservative Union’s annual Conservative Political Action Conference (CPAC) in Washington, D.C., reminds us why we are not conservatives but pro-liberty, pro-free market libertarians (for want of a better word).

This year, again, at the behest of the Heritage Foundation and others, CPAC has refused to allow participation by GOProud, the gay conservative group. But that bigotry is just one point of contention we have with the CPAC crowd, which claims to be for limited government, an aggressive foreign policy and traditional values. Points two (often) and three (almost always) work against point one. And with point three, in particular, the CPAC crowd wants activist big government to impose traditional values on the states and on individuals, by forbidding states from recognizing gay unions, for instance, and by making gay people second-class citizens who are denied spousal inheritance and barred from military service and, until recently, treated as criminals.

As this blog has often noted, Republicans seem to delight in driving socially tolerant and fair-minded voters who otherwise favor fiscal sanity into the arms of those who support Obama’s spending frenzy and grotesque budgetary fear-mongering. And without a fiscally conservative, socially liberal center, that pain is just going to keep getting worse.

More. Fortunately, all Republicans don’t march in lockstep. And some represent the future.

Furthermore. Jon Huntsman’s advice to conservatives:

“I believe the American people will vote for free markets under equal rules of the game—because there is no opportunity or job growth any other way. But the American people will not hear us out if we stand against their friends, family, and individual liberty.”

Will it fall on deaf ears?

More still. Another good sign, Republicans Supporting Gay Marriage Write Supreme Court Amicus Brief, although most of those signing are not in office. Still, hurrah for current Congressmembers Ileana Ros-Lehtinen of Florida and Richard Hanna of New York.

And more. Roger Simon weighs in: CPAC Deflates the ‘Big Tent’ over GOProud.

And so does the conservative National Review:

[GOProud’s] participation in past CPACs caused only mild disquiet (indeed, much of the scattered criticism of GOProud’s inclusion at the conference was shouted down by other attendees) and was probably salubrious on net. Conservative opinion on the intersection of homosexuality and politics is not monolithic, especially among the college-aged set that makes up the better part of CPAC attendees. And a gathering that hopes to speak for the conservative movement will be better equipped to do so if it represents the overlapping gamut of views included in it.

Yet still more. From Jennifer Rubin: 10 lessons from CPAC’s debacle.

The New York Times Magazine looks at the problems engulfing the Republican “brand.” For instance:

Several G.O.P. digital specialists…found it difficult to recruit talent because of the values espoused by the party. “I know a lot of people who do technology for a living,” [Michael Turk, a 42-year-old Republican digital guru] said. … “And almost to a person that I’ve talked to, they say, ‘Yeah, I would probably vote for Republicans, but I can’t get past the gay-marriage ban, the abortion stance, all of these social causes.’ Almost universally, they see a future where you have more options, not less. So questions about whether you can be married to the person you want to be married to just flies in the face of the future. They don’t want to be part of an organization that puts them squarely on the wrong side of history.”

New York Daily News columnist S.E. Cupp reflects that:

“People aren’t repelled by the idea of limited government or balancing the budget or lowering taxes. Those Tea Party principles are incredibly popular with the public, even if they don’t know it….”

And research seems to confirm that a majority of Americans remain center right and fiscally conservative, believing that the government spends too much and tries to do too much, wasting billions (or, really, trillions) and fostering dependency. But they are so turned off by the party’s focus on social issues that they can’t conceive of themselves voting for the GOP.

The message to the party: evolve, or die.

Pope Benedict XVI, the former Cardinal Joseph Ratzinger, has announced he will retire. As the Washington Blade reminds us:

He wrote in a 1986 letter that gay men and lesbians are “intrinsically disordered.” Benedict also said in the same document that gay organizations could no longer use church property. The Vatican’s ongoing opposition to condom use as a way to stop the spread HIV/AIDS has also sparked outrage among advocates.

Anything’s possible, but like his predecessor, Benedict/Ratzinger has stacked the College of Cardinals with hardline reactionaries such as himself, so it might take a miracle for a cardinal not committed to anti-gay, anti-sex philosophy to move forward.

How powerful the Roman church remains is shown by what happened recently in France. As AFP reports:

With opinion polls having consistently shown that a comfortable majority of the French support gay marriage, [Prime Minister] Hollande could never have anticipated that a promise he made in his election manifesto last year would generate so much controversy. A campaign orchestrated by the Catholic church and belatedly backed by the mainstream centre-right opposition steadily gathered momentum throughout the autumn and culminated in a giant protest in Paris last month.

Sowing fear and loathing of religious and sexual minorities, and of the natural expression human sexuality not rigidly controlled by church and state (and reaping the product of such repression, including generations of clerical pedophiles) has been the unfortunate history of the church of Rome.

Two headlines: Same-Sex Military Couples to Receive New Benefits, Pentagon Says and Hagel confirmation votes to be held this week.

In the words of outgoing Defense Secretary Leon Penetta: “It is a matter of fundamental equality that we provide similar benefits to all those men and women in uniform who serve their country.”

It’s good that gay couples are receiving more benefits despite the anti-gay Defense of Marriage Act. But it also seems clear that this is being pushed through just before the Hagel confirmation. Could be that words of support for equality would sound false coming from Hagel, if he could even bring himself to voice them. Otherwise, why not wait a week or two and let Hagel make the announcement, which would have sent a strong message that the drive toward equal treatment for gay service members would continue under the Pentagon’s new leadership, despite Hagel’s anti-gay history.

In the face of the religious right’s uproar over the move by the Boy Scouts of America to allow local troops to decide whether or not to continue barring gay boys/adult volunteers, the group has now delayed any move until later this year. But as Lillian Cunningham writes in the Washington Post‘s On Leadership column:

If the BSA wishes to hold onto its core mission, which is precisely to instill common values, then it needs to decide on those values at a national level. Right now, what it is actually debating is whether to abdicate that responsibility. …

The BSA has focused too much on its followers of the moment, not its followers of the future. This holds whether you believe they should keep or lift the ban on gays. Do you want followers who are anti-gay? Then keep the national ban, and be willing to give up money from companies that don’t share your view. But do you want followers who are inclusive? Then you need to have a national policy of tolerance and be brave enough to let those people and organizations walk away who don’t want the future you want.

In the short term, the BSA may have found a way to duck out of a complicated situation, but at what cost? This lack of leadership, whether by delaying the decision or pushing the decision down the organization, says the BSA is willing to cut out its own heart.

I see her point, but I’m willing to accept something less than perfect (the BSA adopting a national policy of nondiscrimination) in favor of what may actually be obtainable (letting troops decide for themselves). Smaller steps often pave the way to more comprehensive change, even if those steps smack of compromise and moral equivocation.

Domestic partnerships set the stage for marriage equality; if we demanded full marriage rights from the start, the nation (and even liberal blue states) wouldn’t have had a chance to overcome fears about legal recognition of our relationships. Now, the point has been passed where we need to continue settling for less the legal equality on the marriage front.

Compare this with progressives’ refusal to allow the federal Employee Non-Discrimination Act (ENDA) to go forward without covering transgendered people, although there were votes to pass the bill with an end to sexual orientation discrimination. (ENDA’s value is debatable, but it has been a key goal of LGBT activists). Refusing to limit ENDA to what was obtainable, however, left it dead in the water, even when the Democrats had large majorities in both houses. Sometimes standing on principle just leaves you standing still.

More signs that the GOP is confronting the repercussions of intolerance. Via a National Review Online interview with Jim Gilmore, former chairman of the Republican National Committee and former Virginia governor:

“I don’t think the party dies immediately,” Gilmore says. “It’s not going to just disappear like the Whigs did, since there is so much law that supports the two-party system. But Republicans will be locked into a permanent minority at the national level unless we seriously rethink our approach.” …

“Young people today have a more tolerant, hands-off perspective,” he says. “Their libertarian philosophy, for example, has to be taken into consideration. Yet we keep projecting anger at the gay community and the Hispanic community, even though they’re open to many of our ideas.”

Many Republican stalwarts understand that continuing to take marching orders from authoritarian social conservatives will court self-destruction.

More light. I hadn’t been aware of these developments regarding Chick-fil-A. It’s an inspiring account.

Still more light. Via the New York Times:

Kevin L. James, a conservative talk show host running for mayor of Los Angeles, was sitting in his campaign office recently pondering which was his bigger obstacle to victory: being openly Republican, or being openly gay. “Depending on what room you’re in here, sometimes it’s easier coming out gay to Republicans than it is coming out Republican to gays,” he said. …

John Weaver, a Republican political consultant… has increasingly warned that Republicans are marginalizing themselves by moving to the right on issues like abortion, gay rights and immigration. “He is from central casting about what a future Republican candidate can look like in an urban or blue state and win,” Mr. Weaver said.

Look for the LGBT political establishment to unite in opposition to James.

The New York Times looks at new efforts to promote marriage that include traditional opponents of same-sex marriage who have had a change of heart, spearheaded by David Blankenhorn’s retooled Institute for American Values, and gay marriage advocates including IGF-affiliated Jonathan Rauch, John Corvino and Dale Carpenter. According to the report:

The “new conversation” may discomfit many conservatives by including gay men and lesbians. And this conversation may not suit many liberals who are wary of stigmatizing unwed parents or treating marriage as some sort of desirable norm.

Here’s the group’s mission statement. It says, in part:

We propose a new conversation that brings together gays and lesbians who want to strengthen marriage with straight people who want to do the same. The new conversation does not presuppose or require agreement on gay marriage, but it does ask a new question. The current question is, Should gays marry? The new question is, Who among us, gay or straight, wants to strengthen marriage?

We’ll see if there is momentum to move beyond social conservatism’s intransigence on the right, and if so whether gay and liberal groups are willing to engage in this conversation with those who are not part of the coalition of the left.

More. Columnist Kathleen Parker weighs in:

Blankenhorn’s personal transformation has resulted in a welcome shift in the public debate. How clever of him to recognize that his allies in strengthening marriage are the very people who for so long have been excluded.

Some 20 years ago, I was a spokesman for the then newly formed Gay & Lesbian Alliance Against Defamation (GLAAD). There are still a few news articles archived online that quote me from those days, such as here, here and here.

In the years since, GLAAD has had an array of executive leaders, and too often has seemed most interested in raising money by partying with Hollywood friends. While the religious right and social conservatives have been used endlessly in fundraising appeals, they were rarely, if ever, publicly engaged and debated (IGF-affiliated John Corvino and Jonathan Rauch have done far more in this regard, with little or no budget). Instead, trendy political correctness and ideologically lock-step “diversity,” along with echo-chamber “coalition building” with those on the political left, have been the order of the day.

So I was pleased to read in the Washington Post that GLAAD is taking on NatGeo over the cable channel’s promotional programming with the anti-gay Boy Scouts of America. The BSA is far past the point where it should enjoy free media rides (which it wouldn’t, of course, if it excluded boys and scout masters who were African-American or Jewish), but NatGeo seems clueless about its latest programming being in any way controversial. It’s not a matter that government should weigh into, but it is an issue that should be confronted within the bounds of civil society. So, good for GLAAD.

More. Suddenly, it looks like the BSA’s gay ban could fall, at least as national policy. The Washinfgton Post reports:

Southern Baptist leaders…were furious about the possible change and said its approval might encourage Southern Baptist churches to support other boys’ organizations instead of the BSA.

Well, that’s their right. And they could always revive the Hitler Youth.