IGF CultureWatch

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).

In her Washington Blade column, Jessica Lee interviews the Cato Institute's Robert Levy on libertarian support for gay marriage and the lawsuit against California's Prop. 8. Says Levy:

Majoritarian outcomes cannot trump the Constitution. Legislators can pass statutes but if they lead to outcomes that do not comply with the Constitution then it is the appropriate role of the courts to overturn them. Gay marriage is one of those instances.

True, but I wonder if it's smart strategically. As this Blade article notes, in 2000 California passed Prop 22, a statutory ban on same-sex marriage, by 23 points; in 2008 California voters passed Prop 8, the constitutional ban, by four points. Winning elections (eventually) is a stronger bedrock for our rights than judicial decrees. And without majority or near-majority support in three-fourths of the states, perceived judicial over-reach could trigger a successful anti-gay marriage amendment to the U.S. Constition that no court could overturn-the worst-case scenario.

A ruling in California is only weeks away, but that's only the beginning. At some point, the case will end up before the U.S. Supreme Court , perhaps years from now. In the meantime, battles will still be fought state by state, and winning over the political center/center right (not just the left!) remains paramount to our success.

The conservative Washington Times (which is a good source of news on, well, Washington conservatives) reports that Sen. John McCain will not filibuster against the repeal of don't ask, don't tell. "The fact that Mr. McCain will not filibuster means repeal is all but certain, although Defense Secretary Robert M. Gates has latitude on the timeline," according to the paper.

The decision not to filibuster drops the number of needed votes down to a simple majority of 51. That Republicans are caving shows that despite some primary posturing (McCain is in a tight race with a more conservative opponent), they know which way the wind is blowing.

News to make LGBT progressives nash their teeth. As Washington Post columnist David Weigel reports, Grover Norquist, the president of Americans for Tax Reform and a long-time leader among fiscal conservatives, has joined the advisory council of GOProud, the gay Republican group that's positioning itself as more steadfastly conservative than the Log Cabin Republicans. Norquist calls GOProud "an important part of the conservative movement."

Writes Weigel, "Here you've got the fledgling gay group winning another seat at the table, and a leader of the conservative movement pulling the chair out for them."

Also this week in the Post, a recap on how Ted Olson, another stalwart of the right, is pressing the case for gay marriage.

"The right" is not monolithic. Inroads can, and must, be made beyond the party of the left if the goal is to achieve legal equality for gay Americans.

Semi-relevant. This New York Times feature on a recent David Frum garden party gathering of "members of the conservative intellectual elite" to honor the Somalian-born activist Ayaan Hirsi Ali (she faces an ongoing fatwa/death threat for campaigning against Islamist intolerance toward women, gays, non-Islamists) reeks of liberal condescension. But it does mention that:

Also milling about the white-painted porch and leafy garden were the "independent" gay journalists Jonathan Rauch and James Kirchick.

I've been meaning to take note of the seemingly strange, to many, fact that Elton John performed at Rush Limbaugh's recent wedding. Washington Post blogger David Weigel addressed this, quoting Limbaugh biographer Zev Chafets:

On some social issues, like abortion, Limbaugh is a conventional conservative. On others he sounds a lot like Barack Obama. In an interview last summer, he told me that he regards homosexuality as most likely determined by biology, considers other people's sex lives to be none of his business and supports gay civil unions.

Of course, "the LGBT community is none too pleased with Sir Elton," according to gossip site Popeater:

"I'm flabbergasted," Aaron Hicklin, Editor-in-Chief of Out, tells us. "It betrays either ignorance or self-interest or both, and jeopardizes his admirable record on gay rights."

Or this attack by a blogger who thinks the lesson is "It Pays to Hate." Google reveals this is a common response on the LGBT blogosphere.

The real lesson is that Elton John likes to reach out to those who are sometimes our enemies-witness his performance with Eminem, despite the rapper's (at that time) gay-bashing lyrics, at the Grammy's a few years back. In fact, Sir Elton didn't become the wedding singer just because it was a well-paying gig; since meeting Limbaugh earlier this year, he's kept up a fairly regular e-mail exchange, according to conservative talk radio host Mark Levin, a guest at the wedding (as reported by the web site Elton John News). "He's about tearing down walls, not building them," Levin added.

Limbaugh supported California's Prop 8 and mocks Barney Frank. But think about this: if we want to at least modify the Defense of Marriage Act-so that, for instance, federal benefits could be granted to same-sex couples in states that have civil unions/ partnerships, such as California, post Prop. 8- then getting the support of Rush Limbaugh (the "bigoted" voice of the right, who supports civil unions) could be crucial. It's called coalition building-the real kind, not just among groups on the left that all think alike (the current LGBT progressive strategy).

According to this primary election analysis in the conservative Washington Times:

The bottom line on Tuesday's primaries: The Republican Party is facing a purge, and limited-government conservatives are in the ascendance.

After years of taking a back seat as neoconservatives-big-government interventionists-and religious conservatives conducted a tug of war for the GOP's heart, traditional conservatives and fiscally cautious "tea party" activists are shaking up the Republican establishment and also helping shape Democratic contests.

"A center-right coalition, which is not dominated by the religious right or neocons, seems to be emerging as a powerful force in American politics," Republican National Committee member Saul Anuzis of Michigan said. "It doesn't mean their issues aren't important, but they are not necessarily the driving issues as our economy, jobs and ever-growing debt and deficit scare taxpayers."

This gels with what Jonathan Rauch wrote on this blog a few days ago, in 'Tea' Is for Tolerance. But will the hyper-partisan LGBT movement, which often seems to favor all things dependent on bigger government and higher taxes (i.e., the "progressive" agenda) pay heed?