IGF CultureWatch

Winston Churchill famously said in November 1942, when for the first time Nazi forces were pushed back in North Africa, "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

The ruling by a federal district court in Boston finding unconstitutional the worst aspect of the federal Defense of Marriage Act (DOMA)-the section prohibiting the federal government from recognizing same-sex marriages that are recognized by the states in which the couples reside-also signals an "end of the beginning."

As 365gay.com reports, "Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married." In a related case, "he ruled that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment."

The rulings do not force every state to validate same sex marriages, nor even for states to recognize same-sex marriages performed elsewhere. They do require that the federal government recognize marriages where they are recognized by the states in question. That's a common sense approach that allows cultural and political evolution to move forward through the states without triggering a political backlash that could result a draconian federal amendment voiding all same-sex marriages.

The district court's ruling will be appealed by the Obama administration to an appellate court, and then to the U.S. Supreme Court. It will take years. But the signs point to an eventual end of federal discrimination against same-sex couples.

More. The New York Times looks for tea-party types who talk about states' rights but don't like Judge Tauro's use of the Tenth Amendment-and can't find them. They find even tea partiers who oppose gay marriage saying "The Constitution does not allow federal regulation of gay marriage just as it doesn't allow for federal regulation of health care."

"Campaign Spot" blogger Jim Geraghty writes in "For Better or Worse, the NRA Grades Candidates on Only One Issue" that some conservatives are miffed that the National Rifle Association looks likely to endorse the re-election of Sen. Harry Reid (D-Nev.), the senate majority leader and co-instigator of the Obama-Pelosi-Reid mega-government agenda.

As commenters to IGF has pointed out, the NRA is a nonpartisan organization focused on one issue-second amendment rights-and it supports conservatives or liberals who concur with it, which is one reason it's been so successful.

There really is no gay rights group that's comparable. The big Washington LGBT lobbies-even the ones whose bylaws claim that they're nonpartisan (and who once-upon-a-time truly were)-now overwhelmingly define themselves as part of the "progressive" coalition. These groups haven't been shy about treating non-gay issues as part of formal or informal litmus tests for candidate approval (this has been true not just of the Human Rights Campaign but even groups such as the Victory Fund, which maintains a pro-abortion requirement that trips up openly gay, pro-life Republicans who might have benefited from its support).

The clearly partisan gay groups (Stonewall Democrats, Log Cabin Republicans, GOProud) have their own role, which is different. But it would be constructive to have even one major LGBT group that would endorse and fund liberals or conservatives, Democrats or Republicans, based just on whether they supported legal equality for gay people. You might even begin to see more conservative Republicans break away from their party's anti-gay party line, just as Harry Reid and several liberal Democrats have broken from their party's anti-gun rights stance.

Here's a link to Jonathan Rauch's New York Times op-ed, "A 'Kagan Doctrine' on Gay Marriage." If he's right, Justice Kagan's rulings may not be what LGBT activists expect.

Somewhat related. Columnist Steve Chapman at Reason.com looks at conservative angst over Supreme Court judicial activism and finds something surprising, in "How Republicans Made Their Peace with Sodomy":

When conservatives talk about judicial activism, they have in mind a variety of Supreme Court decisions-legalizing abortion, hindering the death penalty, allowing flag-burning, and preventing officially sponsored prayer in public schools. All these, they believe, ignored the plain words or the original meaning of the text.

But there is another decision that fits any definition of a liberal, activist approach. It came in a 2003 case, Lawrence v. Texas, involving two men who were prosecuted after being caught by police having sex in a private bedroom. ...

But after the initial denunciations, something odd happened: The decision vanished from public debate.

Roe v. Wade led to endless battles over abortion laws. The school prayer decisions have been defied in many districts. But once the sodomy laws were gone, they were forgotten. No one mourned them, and no one tried to bring them back.

Or virtually no one, as Chapman clarifies. His overall take: "maybe it's because they realize that laws trampling liberties most people take for granted can't be squared with the spirit of freedom and equality that defines the Constitution-even if the letter of the Constitution has nothing obvious to say on the particular matter at hand."

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

Read the Declaration and celebrate liberty!

The Drudge Report headline was "Google to Pay Gay Employees More than Straight Ones?," while Fox News online called its story "Google Raises Eyebrows With New Gay-Only Employee Benefit." In the Fox account, a spokesperson for Focus on the Family complains, "How is offering more money to only one group to offset a perceived inequity not a form of discrimination against those groups not fortunate enough to receive such bonuses?"

In fact, Google is paying to cover the income taxes the government requires on health coverage provided to employees' same-sex spouses/partners. The federal government requires no such taxes to be paid on the value of health coverage provided to opposite-sex spouses (thanks to the Defense of Marriage Act, the IRS can't recognize same-sex spouses). In other words. Google is ensuring that the take-home pay for employees with covered same-sex spouses is the same as that provided to employees with covered opposite-sex spouses.

Until the government recognizes same-sex spouses, private industry will continue to turn to this type of work-around in order to treat gay employees fairly, and to attract the talent needed to compete in the marketplace.

But if you want to talk about "unfairness," the people with a real gripe may be single employees, since (opposite-sex) married employees and employees with children have often been "paid more" than single and childless employees, in that U.S. employers traditionally subsidize the "family plan" health coverage employees purchase for their spouses and kids. But you won't see complaints from Focus on the Family, or headlines on the Drudge Report and Fox News, about that.

Equal time: The Democrats who control Congress rejected an amendment to their trillion-dollar health care "reform" that would have made the tax treatment of employer-provided health coverage for same-sex spouses/partners equal to that of opposite-sex spouses. But they did manage to placate the unions by passing special breaks for union-negotiated health coverage. Who's got the power? Not the LGBT lobby that provides its support unconditionally to the business-bashing party, that's for sure.

A split Supreme Court ruled in Christian Legal Society v. Martinez that the University of California's Hastings College of the Law can legally deny recognition and funding to a Christian student group that will not let gays join [clarification: would not let non-celibate gays be voting members or voted into leadership positions]. Neal McCluskey writes on the Cato Institute blog, in his post Having Public Colleges Means Limiting Freedom, that "Quite simply, when public universities decide which groups do or do not get taxpayer funds, and which professors are or are not hired, government is deciding those things, and that is ultimately incompatible with both free inquiry and, more importantly, a free society." Kind of like the endless pro-big government "progressive" narrative on government-funded PBS.

If Hastings were a private college, there would (ideally) be no issue with its deciding which groups to fund or not fund. A conservative religious school would chose to fund the conservative Christian group, and a liberal college wouldn't. With public institutions, or private institutions receiving government funding, the state gets to decide. Sometimes you and/or I will agree with those decisions, and sometimes we won't. But that's politics (i.e., who has got the power of the state behind them, at this time).

More. Justice Samuel Alito's dissent cites an amicus curiae brief filed in opposition to Hastings College of Law by Gays and Lesbians for Individual Liberty (GLIL). The dissent can be read here. GLIL is mentioned on page 29:

...the Court argues that the accept-all-comers policy, by bringing together students with diverse views, encourages tolerance, cooperation, learning, and the development of conflict-resolution skills. ... These are obviously commendable goals, but they are not undermined by permitting a religious group to restrict membership to persons who share the group's faith. Many religious groups impose such restrictions. ... Our country as a whole, no less than the Hastings College of Law, values tolerance, cooperation, learning, and the amicable resolution of conflicts. But we seek to achieve those goals through "[a] confident pluralism that conduces to civil peace and advances democratic consensus-building," not by abridging First Amendment rights. Brief for Gays and Lesbians for Individual Liberty as Amicus Curiae 35.

Furthermore. Cathy Young writes in "A Dangerous Precedent" at Reason.com: "How would people feel if, at a public university that happened to be dominated by religious conservatives, a gay-rights group was denied recognition because it refused membership to people who openly espouse anti-gay views?"

IGF contributing writer Dale Carpenter blogs at the Volokh Conspiracy site that a Minnnesota district judge denied a temporary restraining order sought by Twin Cities Pride (TCP) to prevent an anti-gay preacher from distributing literature and displaying signs inside the park where TCP has a permit for the annual gay pride festival.

A park is usually a public place, but apparently TCP is paying for the right to use the park to hold its festival. As one commenter over at Volokh asks, "If the Pride event must permit this anti-gay preacher access to their event, what stops hundreds of others from joining him and converting the Pride event into an anti-gay event?"

I think the U.S. Supreme Court got this one right when in 1995 (and in opposition to LGBT activists) it decided that the organizers of Boston's St. Patrick's Day parade (and, by extension, organizers of other parades) had a right to exclude a gay Irish group from their event. I disagree with the Paddy's Day parade organizers, but I think it was their right. Just as it is TCP's right to exclude from their event the anti-gay preacher.

More. Okay, a park is not a parade. To the extent that that pride event's area was not closed off, I'm willing to backtrack on this one.

Politico finds that leading religious right groups are not happy with their lack of influence over the tea party movement:

"There's a libertarian streak in the tea party movement that concerns me as a cultural conservative," said Bryan Fischer [of the American Family Association]...

The [Contract From America], sponsored by the grass-roots Tea Party Patriots as well as Washington groups such as FreedomWorks and Americans for Tax Reform, asks supporters to choose the 10 most important issues from a menu of 21 choices that makes no mention of socially conservative priorities such as gay marriage and abortion.

"People didn't come out into the streets to protest gay marriage or abortion," said [Brendan] Steinhauser [of FreedomWorks], who said that he hoped the Republican Party would follow the contract's cue and "stop bringing up flag-burning amendments and the gay marriage thing when they're not what people are focused on."

Meanwhile, the Village Voice takes a look at gay Republicans, and doesn't dismiss their efforts outright (stop the presses!).

Finally, as if to demonstrate the point, David Weigel at the Washington Post discusses GOProud's sparring with the Family Research Council (FRC), which takes the increasingly irrelevant view that marginalizing homosexuals should be priority number one. But by attacking groups such as the National Rifle Association and Americans for Tax Reform for working with gays, it's FRC that's marginalizing itself-and even LGBT progressives could agree that this is a positive sign.

The Obama administration is reinterpreting a federal law that requires employers to provide up to 12 weeks leave to a parent who needs to care for an ill child (or following the birth or adoption of a child), so that the law now covers nonparents who are "in loco parentis"-the legal term for people who act as parents but legally aren't. Because of the Defense of Marriage Act, this federally mandated benefit could not simply be applied to an employee who, say, is married or officially partnered to a child's biological parent or parent by adoption.

It's good that a gay parent in such a relationship now may be able to better care for his or her child, but mandating that employers provide this benefit so broadly opens the door to abuses by non-parents such as extended family members who claim to be in loco parentis but aren't. Employers now must investigate these circumstances in order to determine whether the employee's relationship with the child is loco parentis enough to qualify. That's loco.

Worse, while the federal statute in question, the Family and Medical Leave Act, also allows employees to take up to 12 weeks off to care for their ill spouse, the new interpretation applies only to a same-sex parent's caring for a child. It does not apply to same-sex spouses or partners who need to take the time off to care for each other.

Regulatory contortions and half-steps are better than nothing, but let's remember that this is a president who has shown no inclination for repealing or modifying the onerous Defense of Marriage Act, despite his campaign pledges. Those attending the White House announcement should temper their applause.

More. Richard Socarides, Bill Clinton's special assistant and senior advisor on gay rights issues (a position that doesn't exist in the Obama White House), is disappointed with the president. He writes in the Wall Street Journal (subscription required):

...despite a steady trickle of small steps Mr. Obama has taken to promote gay rights, on the big issues he is a disappointment....

The Obama administration's stance on gay marriage is especially troubling. In California, even Republican Gov. Arnold Schwarzenegger has refused to defend the constitutionality of Proposition 8, that state's antigay marriage law. Not so for the Obama administration on the federal version, the Defense of Marriage Act.

Attorney General Eric Holder and the Department of Justice not only have chosen to aggressively defend the constitutionality of that law, which bars recognition of same-sex marriages, but Justice Department lawyers actually cite it affirmatively to deny federal employee benefits like health insurance to same-sex couples....

In a telling development, the most significant and aggressive legal effort to promote gay equality today is being led by a conservative, former U.S. Solicitor General Ted Olson. In federal court in San Francisco, together with co-counsel David Boies, he is prosecuting the most comprehensive and sophisticated legal attack on antigay marriage laws in history....

When Mr. Olson's case reaches the U.S. Supreme Court in a year or more from now, will Mr. Obama be one of the few left on the wrong side of history? What a bitter irony that would be.

I suppose I should say something about the sniping that some supporters of GOProud, the newer, more conservative (and more party line) gay Republican group are engaging in against the Log Cabin Republicans (LCR). Basically, I think there is room for gay groups of a variety of political persuasions on the right/center right (just as groups on the LGBT left range from party line Democrats to far left-wingers).

As I understand it, GOProud's founders were critical that LCR would not endorse George W. Bush's re-election campaign in 2004 (after Bush endorsed the anti-gay federal marriage amendment). Log Cabin did endorse John McCain (who opposed the amendment) in 2008.

[Added: An e-mail received from GOProud states: "GOProud's founding has nothing to do with LCR's non-endorsement of Bush in 2004. ... we were founded because we believed there was a void in Washington. While there were lots of gay organizations, including Log Cabin, working on a narrowly defined list of 'gay issues' like ENDA or hate crimes, there was no organization talking about tax issues, social security reform, free market healthcare reform, etc. We are the only gay organization working on these conservative agenda items."

Perhaps, but some gay conservatives posting at GayPatriot are still fuming over Log Cabin's "refusal to endorse the only Republican in the Presidential Election of 2004."]

This year, GOProud endorsed former CEO Carly Fiorina's successful bid in the California GOP Senate primary against Tom Campbell, while LCR endorsed Campbell, a former congressman.

Campbell favors marriage equality for gay people, while Fiorina supported Prop. 8, which amended the California constitution to ban gay marriage (but allows domestic partnerships). GOProud and its allies (at GayPatriot, for instance), castigate LCR and argue Fiorina is more fiscally conservative than Campbell, but Fiorina has no public record to point to, just words. Campbell was a leading deficit hawk while in the House, but subequently while serving as Gov. Arnold Schwarzenegger's budget director supported a tax increase. The right wing of the party has never forgiven him.

On another matter, some GOProuders attack LCR for accepting funds from the Gill Foundation, which also supports activists on the LGBT left. But software entrepreneur Tim Gill seems to fund a variety of groups working for gay equality, and LCR's acceptance of his money does not make them part of the left or the foundation's puppet, as some charge.

And then there was this year's GOP primary for Viriginia's 8th congressional district (Arlington/Alexandria), where openly gay Log Cabin member Matthew Berry, who served in the Bush Justice Dept., lost to Iraq war veteran Patrick Murray. It is not true that the national Log Cabin organization supported Murray, as some assert. But it is true that the new executive director of LCR, Iraq War veteran R. Clarke Cooper, did endorse fellow-vet Murray before accepting his position at LCR. Subsequently, he withdrew that endorsement. Murray's campaign sent out mailers playing up Berry's support for gay rights (misleadingly so, because in fact Berry favored waiting for the military to complete its review of don't ask, don't tell before taking action, and felt states should decide the gay marriage issue).

The local Log Cabin club of Northern Virginia gave support to Berry and criticized Murray's playing of the gay card (as I noted here). LCR national responded to the charge that the organization supported Murray, here.

Having Tom Campbell in the Senate would have been an important advance for those within the GOP who support gay legal equality, as I wrote, so I was with LCR on that one. But I think LCR's Cooper stumbled badly with his initial endorsement of Murray over Berry in the Virginia House race. Still, I'm willing to give him a chance to recover. LCR has many loyal members who want to support Republicans who support gay rights, and the organization has an important role to play.

It might be too much to expect GOProud and LCR to carve out their own niches and for their supporters to otherwise get along, but that would be a more constructive approach for them to take, especially as it seems highly likely that the GOP will make major congressional advances in November. We'll want, and need, to have our voices (plural) heard within the party.

More. There are a great many claims and counter-claims going on between Log Cabin and GOProud (and GayPatriot, whose founder and co-blogger, Bruce M. Carroll Jr, is a GOProud board member). But I trust my friend David Lampo of Log Cabin's Northern Virginia chapter, who left this comment at the GayPatriot site (it's followed by Bruce Carroll's response).