IGF CultureWatch

J. Harvie Wilkinson III, who sits on the U.S. Court of Appeals for the 4th Circuit, is a conservative judge who has been on conservatives' short list for the U.S. Supreme Court. So it's worth noting his op-ed in the Washington Post that's critical not only of the proposed federal anti-gay marriage amendment, but also of state constitutional bans on gay marriage. In Hands Off Constitutions: This Isn't the Way to Ban Same-Sex Marriage, Judge Wilkinson writes:

The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does. ...

I do not argue that same-sex marriage is a good or desirable phenomenon, only that constitutional bans on same-sex unions carry terrible costs. ...

It is sad that the state of James Madison and John Marshall [Virginia] will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

Behold, a principled conservative!

More. Something must be in the water down in old Virginny. Here's another anti-amendment column by another Republican judge, Raymond A. Warren. He writes:

More troubling is the effect the amendment might have on private arrangements such as domestic partnership health benefits now widely offered by major employers in Virginia. ... It would be a rational legal conclusion that such programs create either a "partnership" or a "legal status" that Virginia's courts could not recognize. ... Even private contracts cannot violate the Commonwealth's public policy and it is not inconceivable that the courts could read the new amendment broadly enough to create a public policy against such contracts. . . .

Worse, the everyday documents many unmarried couples (including non-gay couples) use to protect their legal and financial interests would be called into question by the proposal's broad language. ...

All this would leave Virginia at a distinct disadvantage in the global economy.

And he's right. Some conservatives care about liberty, legal equality, and prosperity (and yes, they are linked). Others, especially social conservatives, are not only bigoted but are as economically illerate as their leftwing counterparts.

Rabbis who are part of Conservative Judaism, which falls midway between Orthodox literalism and the more liberal (in the good sense) Reform movement, foresee a possible schism coming over ordaining gay rabbis and performing same-sex marriages, notes this article in the Jewish Daily Forward.

I view schism within Conservative Judaism the same as I view schism among Anglicans/Episcopalians or within other denominations. Let 'er rip. Just as Northern protestants broke with their Southern denominational counterparts over slavery, so let those who choose to mask the dark path of intolerance and bigotry in religious rhetoric go their own way, and good riddance!

I often note how gay groups put big-government left-liberalism ahead of working broadly to advance liberty and legal equality for gay people. But it's interesting to see religious social conservatives upset that the Christian Coalition is forsaking a focused agenda and, in the view of its critics, "drifting to the left" by staking out positions on issues such as support for regulating internet access. Or at least so reports (wishfully?) the L.A. Times.

California's Gov. Arnold Schwarzenegger has signed a bill that bans discrimination in state operated or funded programs on the basis of actual or perceived sexual orientation or gender identity. The anti-gay group Focus on the Family wails that the measure "requires businesses receiving funds from the state to condone homosexuality, bisexuality and transsexuality, or lose funding. No exceptions for faith-based organizations." But over at Positive Liberty, Jon Rowe writes that:

although these antidiscrimination laws do indeed limit private freedom, that's an issue not particular to "sexual orientation codes," but to antidiscrimination laws in general. ...

the antigay right evidences utterly faulty logic whenever it tries to argue that presently existing antidiscrimination statutes are just fine, as long as sexual orientation is kept off the list, because it's not like the other categories. ...

All of this isn't to justify antidiscrimination codes as they apply to private markets but rather to debunk the notion that antidiscrimination codes traditionally protect racial categories only and all other categories on the list are "just like race" in the sense that they are immutable and sexual orientation is not. What nonsense.

As others have pointed out, religion is a lot less "immutable" than sexual orientation, but the religious right activists (who otherwise believe you must freely choose to be a Christian) ignore this contradiction in their demagoguery. As a result, they advocate that their religious beliefs ought to receive government protection that extends to private companies, but that sexual orientation should not be afforded the same privilege. Well, isn't that special!

Other gay-related bills awaiting a decision by the governor would (1) prohibit schools from using textbooks or providing instruction that criticizes people because of their sexual orientation - I rather doubt this was actually much of a problem - and (2) far more significantly, let domestic partners file joint state income tax returns.

Wal-Mart is reaching out to gays, and some conservative groups are mad as hell. But then, too, so are some gay "progressives" such as Pride at Work, which puts big labor's agenda (and the Democratic Party's talking points) first in promoting unwarranted attacks on the giant retailer that brings low-priced goods to working Americans.

At overlawyered.com, Walter Olson provides an update on the Vermont-Virginia lesbian custody battle (citing Eugene Volokh's "Volokh Conspiracy" blog), looking at how Virginia's court put anti-gay animus over solid legal jurisprudence by letting a (now ex-)lesbian partner who fled to Virginia ignore a Vermont court's joint custody decree. In effect, the Virginia court used that state's Defense of Marriage Act (DOMA) to override the intent of the federal Parental Kidnapping Prevention Act (PKPA).

An interesting hypothetical: If there had been no civil union and only a joint custody decree (which can be granted to unmarried partners co-raising a child who then split), the Virginia court would not have been able to use the state DOMA to invalidate the custody decree, and the partner who fled to Virginia could have been prosecuted under the PKPA.

Patricia Todd, an openly lesbian Democratic who narrowly won a primary race for the Alabama legislature, has been disqualified by the party committee based on a seldom used filing technicality. Todd is quoted by the AP saying that she believes the challenge has nothing to do with the fact she is gay but is about the fact that she is white and won in a majority black district. She blamed Joe Reed, longtime chairman of the black Democratic caucus, who wrote a letter before the election urging black leaders to support Todd's black opponent and stressing the need for keeping the seat in black hands.

But that can't be, because only whites are racists, right?

Update. Todd has been reinstated. The glare of publicity again proves the best tonic for political corruption.

A leader of a major Palestintian terrorist group cited gay Israeli soldiers as a factor that shows Israel can be defeated militarily.

Abu Oudai, chief rocket coordinator for the al-Aqsa Martyrs Brigades in the West Bank, hailed Hezbollah's performance in the war in Lebanon and said in an interview with World Net Daily, "If we do [what Hezbollah accomplished], this Israeli army full of gay soldiers and full of corruption and with old-fashioned war methods can be defeated also in Palestine," the Israeli website Ynetnews reports.

Think about that the next time you see American leftists marching in solidarity with Israel's enemies.

California's anti-gay GOP state legislators are once again shaming themselves, and this time opposing a tax cut to boot. Here's hoping Gov. Arnold does the right things and signs this bill letting domestic partners file joint state tax returns-giving committed gay couples the same tax break that hetero married couples get when they file jointly.

The new Pension Protection Act the president just signed is a good law, ensuring that employers adequately fund traditional pensions if they offer them to workers, and improving the flexibility of 401(k)s. It's the sort of common-sense bill that usually goes down in partisan wrangling, but enough horse-trading was done to achieve a good measure of bipartisan support, despite vehement union opposition.

The Human Rights Campaign likes the bill, too, so we are in rare agreement. But it's interesting to note that HRC praises it because of a provision it supported that will allow anyone to inherit a 401(k) nest egg without immediately paying taxes on the windfall, a benefit that in the past was reserved for spouses.

HRC frames this as a victory for domestic partners, and it can be construed as such. But only in the sense that your cousin Joe, or your home health aide Bessie, or your best friend Ryan from college, can now be left your 401(k) without having to cash it out and pay taxes. In other words, a former benefit of marriage has now been made generally available to any non-spouse.

If we can't achieve spousal recognition for gay couples (either via marriage or federally recognized civil unions), then such "victories" may be the best we can do. And I don't want to suggest that this won't be helpful for gay partners (as well as for cousin Joe). It's just not the kind of "milestone in the ongoing fight for the rights of gay and lesbian couples" that makes me want to celebrate.

SteveS comments:

Where's the gay left and HRC on eliminating the estate tax? They're nowhere to be found because it cross-pressures their other positions and allegiences.

I've tried to get some HRC-type gay activists in Florida to bring pressure on Sen. Nelson to support repeal of the estate tax, pointing out the benefit that would mean for gay couples to pass along high-priced homes and other assets to the survivor tax free as hetero couples can. The thought had never ocurred to them and they figured that something must be wrong with it if they thought long and hard enough. Finally they said that they were opposed to incrementalism. Evidently they wanted the whole enchelada or nothing. A great example of being slaves to doctrine and group-think rather than working to achieve the achieveable.