IGF CultureWatch

Ryan Sager finds surprising strength for Rudy G. among GOP activists not otherwise prone to support a pro-gay, pro-choice fiscal conservative.

Why we're losing gay marriage cases. Washington Blade editor Chris Crain writes:

The way most judges see it, though they won't ever say it, there is no point to "doing the right thing" if their decision faces a veto from the people in the form of a constitutional amendment. Not only is it pointless to risk prestige and rule one way, only to see it reversed by amendment, but their authority to rule on countless other issues, including other civil rights cases and even gay rights cases, has been irreversibly undermined.

Will die-hard advocates of the judicial strategy get the message?

Stem cell research is supported by more than 70 percent of Americans, but opposed by evangelicals and conservative Catholics. Particularly in light of Bush's veto of a popular stem cell bill, there is an opportunity to push the majority of Americans who reflexively vote in favor of marriage/civil union bans to view the religious right's agenda with deeper skepticism. But if left-leaning gay activists instead attack the theocrats broadly for opposing all things liberal, as they've done-repeatedly-in the past, this opportunity will, sadly, be lost.

More. Ralph Reed loses (big time) in his effort to become Georgia's lieutenant governor. Hurrah! No doubt more due to his corrupt lobbying with Jack Abramoff than because of his leadership of the Christian right, but still another opportunity to reveal the theocrats as blind guides.

Still more. From a July 21 Wall Street Journal article, Stem-Cell Issue: Republicans' Undoing? (WSJ subscribers only):

As the party has grown more socially conservative over the past quarter-century, the suburbs where many Republicans live have become more diverse and politically independent, marked by a mix of fiscal conservatism and social liberalism that is testing Republicans' dominance there.

The party has to decide if it wants to keep placating hard-line social conservative activists and lose the 'burbs. Moderate Democrats, of course, would have a better chance here if their party wasn't also bending over backwards to placate its own hard-line, Daily Kos-inflamed activist base.

As Israel fights to defend the only liberal democracy in the Mideast, James Kirchick asks, in response to an Advocate interview with lesbian Palestinian activist Rauda Morcos, "Is it racist to say that the Palestinian Authority is light-years behind Israel in terms of LGBT equality?" He also wonders why the highest-profile international gay rights organization is boycotting WorldPride in Jerusalem this August.

With the Mideast in meltdown and the stock market tanking, GOP social conservatives have declared that it's to be "values week" in the House, which will focus on a meaningless vote on the federal anti-gay marriage amendment (going nowhere since it was shot down in the Senate), as well a bill to protect the words "under God" in the Pledge of Allegiance from court challenges. They may find that they've gone too far during a time of actual crisis.

On the lighter side, Jeff Gannon hits the mark.

House vote update. The amendment vote in the House failed to get the needed two-thirds majority for passage (which would only have been a symbolic victory). Democrats, to their credit, held firm (although I note that Georgia's leftwing, race-baiting, and frankly crazy Rep. Cynthia McKinney failed to vote, despite her Human Rights Campaign primary endorsement). Meanwhile, 202 Republicans voted for passage while only 27 libertarian, RINO or gay Republicans voted no.

In Massachusetts, the Boston Globe newspaper has told its gay and lesbian employees that:

An employee who currently covers a same-sex domestic partner as a dependent will have to marry his or her partner by Jan. 1 for the employee benefits coverage to continue at the employee rates to get married or lose their domestic partner benefits.

That's the right thing to do. As the rival Boston Herald reports, "Now that gay marriage is legal in Massachusetts, companies that offer benefits to gay employees' partners risk hearing cries of discrimination from unmarried straight couples."

Corporate domestic-partner benefits are a stop-gap to provide a bit of fairness to employees in same-sex relationships until gays can get married. There is no reason to preserve them as a distinct benefit category after marriage (and, arguably, state-recognized civil unions) become available.

Domestic-partner benefits will continue for Globe employees who live in states where gay marriage is not recognized.

I support school choice rather than pouring yet more taxpayer money down the endless rat-hole of union-dominated and bureaucratically mismanaged public (i.e., government) schools. But for the foreseeable future it's in exactly such miserable institutions where the vast majority of American youth will be forced to try to glean whatever education they might be fortunate enough to extract. Given this sorry circumstance, I think public schools should at least have the ability to insist on basic decorum and civility among their captive students.

Yet, in 1969, a liberal dominated Supreme Court, in Tinker v. Des Moines, ruled that free speech rights extended to students and so public schools could not restrict political speech, including arm bands worn in protest of the Vietnam War, unless such symbolic speech caused undue disruptions to school activities. Tinker has been tinkered with around the edges, but basically stands.

This bit of history is relevant because the Ninth Circuit now must decide whether a California sophomore named Tyler Chase Harper was unfairly sent home from his high school for wearing a t-shirt saying "Homosexuality is shameful." The overt sloganeering is certain uncivil, but is it also political speech protected by liberal jurisprudence? If so, then opponents of the t-shirt must prove it is a form of harassment that keeps gay students from learning in order to have it banned.

It would be much easier if schools were still able to simply insist on civil behavior and dress codes that excluded culture-war sloganeering.

Meanwhile, here's another public school culture-war skirmish. At Howell High School in Michigan, when the Diversity Club hung a rainbow flag in a hallway, it was allowed to remain despite a petition by Christian conservatives. That prompted these students to create a Traditional Values Club and produce their own flag. Now, faculty members have voted that both flags should be displayed only in classrooms during club meetings.

That sounds sensible, but let's see if one side or the other sues claiming their right to political speech was unduly infringed.

More. TCS Daily wonders if the 9th Circuit is creating preferential speech rights.

On Thursday, New York's highest court ruled that the state constitution does not require same-sex marriage, while the Georgia Supreme Court upheld that state's constitutional ban on gay marriage and any state recognition of same-sex relationships.

These are defeats, but I hope they serve to wake up judicial strategy advocates that turning to the courts to mandate gay marriage is both bad politics (provoking voter backlash when courts rule our way against overwhelming majority opinion) and not a sure bet.

In New York, advocates asked for a finding of a right to marriage and nothing less, hoping for a Massachusetts-style judicial victory. But Massachusetts is not proving to be a model for anywhere but Massachusetts. If they had asked for a ruling instructing the legislature to grant the statewide benefits of marriage to gays in a fashion to be devised by the legislature (such as through Vermont-style civil unions, now provided in several states), it might have been a happier day.

More. Gay Patriot West observes:

Had New York's Court of Appeals ruled in favor of gay marriage, the decision would have rallied gay marriage opponents and strengthened the case for a federal constitutional amendment. Now that argument is considerably weakened. And the option still remains for advocates of gay marriage to make their case before the legislature-and the people to whom the elected legislators are responsible.

And he's right.

Ryan Sager concurs:

Supporters of gay marriage won a resounding victory yesterday-even if they don't know it yet.

Still more. According to a Human Rights Campaign statement:

The court's archaic reasoning is rooted in ignorance and completely contradicted by the facts of today. ... The court threw the expert advice of child welfare professionals and years of scientific evidence out the window with its ruling against fairness.

But the court's role is to interpret the state constitution, not to create new law by decree because liberals want it and believe it would be "fairer" and more resonable, but lack the support of the electorate or the legislature.

Meanwhile, as Instapundit notes, Howard the Hypocrite Dean called the reasoning of the New York Court "bigoted and outdated," but just a few months ago, when sucking up to Pat Robertson, he himself trumpeted his party's support for marriage only between a man and a woman. Better watch it, Howard, or you could give shameless pandering a bad name.

Yet still more. A backlash even in Massachusetts?

Voters in the Old Dominion, which already has a sweeping law against recognizing same-sex marriages or anything remotely similar, will vote in November on a constitutional amendment that would not only ban civil unions (again, already illegal in Virginia), but decree that the state will "not create or recognize a legal status for relationships of unmarried individuals."

That language is so broad it's anybody's guess what it might apply to (private contracts to share property?). That means if it passes, the courts will have to interpret it. But wait, social conservatives say we need an amendment because activist courts are inserting themselves into the marriage debate!

Virginia Gov. Tom Kaine, a Democrat, opposes the amendment, saying it could affect contracts between unwed heterosexual couples and "disenfranchises…unmarried people, both same-sex or heterosexual couples." While he opposes same-sex marriage, he says, "We're equal citizens in the state; we ought to be treated equally." But then why does he opposes letting gay couples marry?

Nevertheless, it's interesting that Kaine, the governor of a conservative state, has a view that is at least as gay friendly as John Kerry's, and Kerry was perhaps the most liberal member of the U.S. Senate. That may show progress.

But as the Washington Post reports, anti-gay marriage amendments "have passed in each of the 20 states where they have been on the ballot, often by more than 3 to 1." Sadly, it would take a huge breakthrough, or a lot of scarred cohabiting heteros, to reverse that trend.

Maryland's conservative GOP Gov. Robert Ehrlich backs a state amendment barring same-sex marriage. That's insupportable. But it's interesting to note that, in the run-up to the Nov. election, Ehrlich has fired an official for being anti-gay and appointed an out gay judge. These are being viewed (maybe cynically) as attempts to appeal to moderates. In any event, I think it shows how far we've progressed in general, even though marriage equality remains a formidable struggle.

Meanwhile, in California, Gov. Schwarzenegger (who vetoed a legislatively passed gay marriage bill) declared that:

A person should only be limited by his dreams and not by his background, and not by his heritage and not by his sexual orientation. . . .We are united in the values of love, tolerance, and understanding…working together we can create a better future for California where everybody matters and every family counts.

Once the general public moves just a bit more toward marriage acceptance, basically tolerant politicians such as Schwarzennegger and McCain (and perhaps even more conservative ones such as Ehrlich, and maybe even liberal Democrats like Kerry and Edwards) should follow along.