IGF CultureWatch

From the Los Angeles Times: "Among registered voters in California, 54 percent support a constitutional amendment to ban same-sex marriages, and 35 percent oppose it.... Of those who said they didn't know a gay person, 70 percent support the amendment..."

The Times tries to give the findings a positive spin as a "narrow margin" for the amendment's passage, but actually, I'm told, pre-vote polls on state anti-gay amendments have undercounted the support for banning same-sex unions by an average of 10% - amendment backers don't feel comfortable giving their real views, it seems, perhaps fearing that the pollster will think they're bigots.

Equality California's PAC is the right place to donate, I'm told.

If the anti-gay marriage amendment fails (as did a similar effort in Arizona two years ago), it will mark an historic turning point. If the amendment passes, marriage equality will be delayed in the nation's most populous state for perhaps a generation - which demonstrates both the promise and real risks of pursing a judicial strategy.

A panel of the Ninth Circuit Court of Appeals has issued an opinion favorable to Major Margaret Witt, a decorated Air Force nurse and Persian Gulf veteran who was discharged for being in a longstanding relationship with another woman.

The appellate panel cited the U.S. Supreme Court's Lawrence decision, which overturned so-called sodomy laws criminalizing gay sex, and which established that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment [revised from earlier posting]. The panel then remanded for lower court determination whether Don't Ask, Don't Tell (DADT) violated Witt's (and by extension all service members') fundamental rights. IGF contributing author Dale Carpenter weighs in over at the Volokh Conspiracy, commenting:

I take some satisfaction in the panel's conclusion that Lawrence supports heightened scrutiny for laws that burden the exercise of private adult sexual autonomy.

But just about every lower federal and state court, and it seems most scholars, until now have refused to read Lawrence that way. Even courts that have struck down laws that are anti-gay, like the Kansas Supreme Court (striking down a law establishing vastly different criminal penalties for sex with a minor depending on whether the minor was of the same or opposite sex), or striking down laws that have infringed on private adult sexual autonomy, like a recent Fifth Circuit panel (striking down a Texas law against sex toys), have avoided reading Lawrence as a fundamental-rights case. Indeed, on the question of whether the sodomy decision recognized a fundamental right, it can be said without too much exaggeration that the controlling opinion in Lawrence is actually Justice Scalia's dissent....

Nevertheless, quite apart from whether DADT is ultimately struck down, and unless the en banc court reverses the panel's determination that some form of intermediate scrutiny applies under Lawrence, this holding by itself is significant.

Law professor Eugene Volokh adds:

there's now a split on the subject between the Ninth and the Eleventh Circuits, and the question extends far beyond "Don't Ask, Don't Tell." (The Eleventh Circuit decision, for instance, upheld Florida's ban on adoption by homosexuals; that case might well come out differently under heightened scrutiny.

There's background on Maj. Witt and her case here.

More. Carpenter also comments on sexual orientation and heightened scrutiny in the California marriage decision, here, finding:

the court's equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion.

In one of the most bizarre arguments against state recognition of same-sex marriages, social conservative Melanie Scarborough reaches for her pen and writes:

permitting individuals of the same sex to describe their relationships as marriage gives them a right not extended to heterosexuals, for whom "marriage" is very narrowly defined. Although a man and a woman may legally wed, the law does not consider the marriage valid unless it is consummated .... But unless the relationship includes the one act defining marital union ... the question is moot; homosexual marriage is physically impossible.

Now, the assertion that marriage is and can only be "consummated" and thus made legal by vaginal intercourse, or else it isn't marriage, is circular in the extreme. Scarborough is also implying that marriage is as marriage always was, which is ridiculous. Women are no longer property, and marriages (legal ones, at any rate) are no longer polygamous.

And while I haven't read the marriage laws in all 50 states, I know that two people are considered married, with all the legal rights and obligations, without producing evidence of a broken hymen - and that particularly among the elderly, where many late-in-life marriages are companionate, it's a good thing that no bloody sheet need be produced.

It seems that many social conservatives are clearly losing it, and not in a good way.

More. And let's not fail to take note of conservative columnist (and sometimes Culture Watch reader and commenter) Maggie Gallagher, who predicts:

Polyamorists, Muslims, and breakaway heretical Mormons can expect to find at a minimum new comfort in this sweeping moral support (if not yet legal support) for the dignity of their own favored family relationships, since the right to marry is the right to have one's family relationship officially recognized and accorded equal dignity.

Oh dear, it's that old slippery slope again. But to paraphrase Jon Rauch, gays are not fighting for a right that no Americans now legally have (to multiple marriages, or "to marry everybody"), just a right that most Americans have ("to marry somebody").

Furthermore. Liberal columnist E.J. Dionne writes in the Washington Post:

As it happens, I am one of the millions of Americans whose minds have changed on this issue. Like many of my fellow citizens, I was sympathetic to granting gay couples the rights of married people but balked at applying the word "marriage" to their unions.

"That word and the idea behind it," I wrote 13 years ago, "carry philosophical and theological meanings that are getting increasingly muddled and could become more so if it were applied even more broadly.

Like a lot of people, I decided I was wrong. What moved me were the conservative arguments for gay marriage put forward by the writers Jonathan Rauch, Andrew Sullivan and New York Times columnist David Brooks.

They see society as having a powerful interest in building respect for long-term commitment and fidelity in sexual relationships and that gay marriage underscores how important commitment is. Prohibiting members of one part of our population from making a public and legal commitment to each other does not strengthen marriage; it weakens it.

Let's hope California can avoid a constitutional amendment overturning this morning's state Supreme Court ruling that laws excluding gay and lesbian couples from the right to marry are un(state)constitutional - which follows on the heels of twice legislatively passed (but twice gubernatorially vetoed) marriage rights bills.

(Gov. Schwarzenegger, who voted the bills, nevertheless says he supports the court's decion and opposes the proposed anti-gay marriage amendment expected to be on the November ballot.)

If the amendment can be defeated and same-sex marriage becomes an everyday reality in the nation's most populous state, then the pressure will certainly mount to challenge the (federal) constitutionality of the Defense of Marriage Act, which bars the U.S. government from recognizing state-sanctioned same-sex unions for purposes of joint tax filings, spousal immigration, Social Security survivors' income, and myriad other benefits that married heterosexuals take for granted.

More. From the New York Times:

Gay marriage is an issue on which the three major presidential candidates - John McCain, Barack Obama and Hillary Rodham Clinton - are pretty much in agreement. All oppose it, while saying at the same time that same-sex couples should generally be entitled to the legal protections afforded married couples. All think the decision should be left to the states.

So they're all pretty much in agreement, but you can bet HRC and the rest of the LGBT beltway gang will be going all out for a McCain defeat (and, if history is a guide, it will be their top electoral priority, dwarfing any efforts to stop state anti-gay marriage amendments).

Changing topics. Beware political hysteria carried forth on a wave of emotional charisma, and be prepared for the unhappy consequences. This picture, for me, invokes visions of Nuremburg.

Former Congressman Bob Barr (R-Ga.), who is hoping to win the Libertarian Party's presidential nod and cause problems for John McCain, gets a puff profile here from the New York Times. But the thrice-married father of the anti-gay Defense of Marriage Act and congressional opponent of medical marijuana makes for a strange libertarian indeed.

More. Barr also had an terrible record on free trade (voting against it, that is) while in Congress. As David Boaz told the Times, if Barr should head the LP ticket, "I think he's going to have a problem." That seems clear: only unhappy GOP social conservatives - and New York Times liberals hoping for "Barr to block" - will wish him well.

At Positive Liberty, Jon Rowe looks at the religious right's arguing that gays are both (1) successful high earners who lead privledged lives and (2) promiscuous, drug addicted alcoholics. Writes Rowe:

I'm sorry but common sense dictates that a social group cannot at once both be that dysfunctional and so successful that their household incomes are almost 80% above the median. That would take hyper functionality. Gays would have to be arguably the most socially functional social group to be that successful.

Of course, the Nazis accused the Jews of being both the bankers and communists.

An Iranian feminist artist who goes by the alias Sooreh Hera, living in exile in the Netherlands, said she received death threats after attempting to show her series of homoerotic photographs that include models depicted wearing masks of the Prophet Muhammad and his son-in-law Ali, reports Fox News.

Hera said the photo exhibit is meant as a statement regarding Islam's stance on homosexuality.

A couple of thoughts: (1) It's counter-productive to think that provocative homoerotic depictions of Mohammed are going to accomplish anything but inflame the vehemence of conservative Islamic believers, just as homoerotic portrayals of Jesus and "the beloved disciple" only inflame the anger of conservative Christians. (2) However, if taxpayers' money isn't directly involved, artists most certainly have a right to create whatever depictions of religious figures they wish. And others have a right to criticize them for it. (3) It may well be true that in the West artists have an easier time with depictions that conservative Christians consider blasphemous than with the real risk of murder they face if they depict Mohammed in a way that conservative Muslims consider blasphemous. (4) Would Fox News have covered this story in the same way ("Iranian Artist Fights to Have Muhammad Art Displayed in Dutch Museums") if it had involved homoerotic portrayals of Jesus and John?

Note: The blog post on former gay activist David Benkof's defense of Orthodox Judaism's prohibition of homosexuality (among Orthodox Jews) has now moved off the home page. If you'd care to continue the discussion, to which Benkof has enthusiastically engaged, the permalink is here.

A survey of self-identifying gay, lesbian and bisexual Americans conducted by Hunter College and funded by the Human Rights Campaign (HRC) shows that respondents 18-25 years old said marriage and adoption rights were the top gay issues, while those 65 years and older said laws regarding hate crimes and workplace discrimination were most important. However, altogether only 59% know there's no federal law that bars workers from being fired based on their sexual orientation. If anti-gay discrimination in the workplace were as big an issue as some activists claim, one would think that figure would be much higher.

Generally, efforts toward ending "Don't Ask, Don't Tell" and securing rights for transgender people scored the lowest in the poll. Which points to a rather large gap between the trans-inclusive agenda of many LGBT activists and the folks they claim to represent.

It now appears likely that the Employee Non-Discrimination Act, which passed the House last fall without covering the transgendered, will not be brought up in the Senate this year. Many LGBT activists, such as the National Gay & Lesbian Task Force, would rather have no law than a law that only protects gays and lesbians. Others, such as HRC, think the new Congress will be more likely to include transgender protections in the bill and that President Obama will be more likely to sign it. I personally doubt the former, and think the odds of a President Obama may currently be not much better than 50-50 given his increasingly obvious disingenuousness.

In other political news, the Washington Blade reports that HRC and the Gay & Lesbian Victory Fund are not supporting openly gay Democratic Senate candidate Jim Neal of North Carolina in his primary fight (one poll puts him even with the Democrat who has the backing of the national party). I understand that the party to which HRC and the Victory Fund have pledged fealty believes that a straight Democrat has a better chance of ousting incumbent GOP Sen. Liddy Dole. But if we are not for our own, who will be for us?

More. I never said that gay Republicans should support Neal. My point is that gay Democrats and supposedly nonpartisan LGBT political groups, especially those whose mission is to promote gay equality and/or to elect out-and-proud gay candidates (as is the Victory Fund's), are putting fealty to the Democratic party above all else (so what's new?). I liked Neal's response, "Maybe I'm not gay enough. I don't know."

As for ENDA, I recently explained my view here.

Update. Down to defeat, as reports EdgeBoston:

but some gay and lesbian leaders are questioning whether a losing candidate deserved more support from GLBT equality organizations.

Neither The Human Rights Campaign nor the Victory Fund supported the campaign of openly gay candidate Jim Neal, and the Democratic Party itself, far from supporting Neal, reportedly recruited winning candidate Kay Hagan, a NC state legislator, to run against him.

Gay voters are a cheap political date for the Democrats-a little sweet talk and nothin' else required.

Over at the Institute for Marriage and Public Policy website, IGF contributing author John Corvino is having an exchange with former gay activist David Benkof, who says he is practicing celibacy since embracing Orthodox Judaism. First, here's Benkof, who argues:

"We may think we've figured out why certain behaviors are moral or immoral, and even find some of G-d's moral calculus to be frankly troubling. But we are moral dwarves compared to the infinite wisdom and goodness of the creator of the universe."

And here's Corvino, who replies that:

Many people-with widely disparate views-have claimed to know God's mind, and they can't all be right. As humans, we are fallible. So this is not Corvino versus God; it's Corvino versus Benkof-each one trying to figure out what's right."

I'll add my two cents. Orthodox literalism is far from the only way to understand the Bible, a work that even on the surface is suffused with layers of allegorical richness. But going beyond biblical exegesis is the broader problem of how orthodoxy and fundamentalism confound scriptural authority with the totality of God's word.

I'm not the first to suggest that fundamentalism/literalism is a form of idolatry, worshiping scripture instead of the living spirit of the creator, whose revelation is alive and ongoing, as most certainly is our evolving ability to contemplate the fullness of his Logos.

I'll share that my favorite portions of the New Testament (the non-Paulist bits) are when Jesus calls out the crowd that castigates him for healing on the Sabbath (when the Bible demands you shall not work), saying "the Sabbath was made for man, not man for the Sabbath." Or when he dismisses the ritualistic dietary laws by saying, "It is not what goes into a man's mouth that makes him unclean. It is what comes out of a man's mouth that makes him unclean." Or when he expresses shock that the masses actually think that the Biblical injunction of "an eye for an eye" should be (literally) followed.

Time and again, scriptural authority is cast as a means, not an end, and love trumps the law.

In the New York Times Magazine, a young gay man writes about young gay men being far more relationship-oriented these days:

But young gay men today are coming of age in a different time from the baby-boom generation of gays and lesbians who fashioned modern gay culture in this country - or even from me, a gay man in his early 30s. While being a gay teenager today can still be difficult and potentially dangerous (particularly for those who live in noncosmopolitan areas or are considered effeminate), gay teenagers are coming out earlier and are increasingly able to experience their gay adolescence. That, in turn, has made them more likely to feel normal. Many young gay men don't see themselves as all that different from their heterosexual peers, and many profess to want what they've long seen espoused by mainstream American culture: a long-term relationship and the chance to start a family.

The article comes complete with photographs that look like 1950s advertisements. Changing times, indeed!