IGF CultureWatch

On April 1, the Senate confirmed former Colorado solicitor general Timothy Tymkovich for the 10th U.S. Circuit Court of Appeals. Unfortunately, they weren't April fooling. As I wrote back on Feb. 19 and Feb. 22, former Colorado solicitor general Tymkovich defended that state's 1992 Amendment Two, banning legal protections based on sexual orientation. He also was harshly critical of the Supreme Court's ruling in Romer vs. Evans that Amendment Two violated the constitution's equal protections guarantees, and that gay citizens can not be singled out as a class for special discrimination by the state based solely on popular prejudice. In other words, there must be a convincingly rational basis when the state treats gays differently from heterosexuals.

Tymkovich wrote that Romer illustrated "judicial histrionics," adding that it was "merely another example of ad hoc, activist jurisprudence without constitutional mooring." His nomination was opposed by both the Log Cabin Republicans and the Human Rights Campaign.

So did Democrats launch a filibuster like the one that's kept Miguel Estrada, a judicial nominee with no anti-gay record, from becoming an appellate judge? Hardly. The Senate confirmed Tymkovich 58-41.

Covering the Culture Wars.

A new book, "Irreconcilable Differences? Intellectual Stalemate in the Gay Rights Debate," by Thomas C. Caramagno provides much food for thought as it examines the rhetoric used on both sides in gay rights battles over the years. Caramagno, an academic at the University of Nebraska-Lincoln, writes:

What has happened to the "debate" in "the gay rights debate"? Why does each side resort to moral condemnations and demonizing stereotypes instead of extended, useful dialog?"Oversimplifying each side's agenda and membership obscures important ideological distinctions within the "gay communitiy" and anti-gay rights groups.

Caramagno delves into the great divide with a good deal of thoroughness and has produced a valuable resource, although at $64.95 it's rather pricey. Also, I wish he hadn't fallen into the trendy trap, born in academia, of referring to "LGBTs" as if this designated an actual class of being.

Update:The author e-mailed to say there is a paperback version for $24.95.
--Stephen H. Miller

While some anti-gay social conservatives are trying to accommodate to a likely Supreme Court ruling against same-sex sodomy laws, others are digging in their heels. In the former camp, William F. Buckley sees the handwriting on the wall and, in his March 28 column titled "No Gay Things Allowed?" opines that:

It would be nice if Texas simply repealed the law [against homosexual conduct], and let Lambda's clients go back to their practices undisturbed.

It ain't gonna happen, but it's nice to see Buckley admit that same-sex sodomy laws should go, even if his motive is fear that a Supreme Court ruling premised on equal protection grounds will have a positive impact on extending gay equality greater than simply making these archaic statutes vanish.

On the other hand, Christian conservative Cal Thomas is adamant that sodomy laws are necessary to preserve a moral universe. He writes in his March 28 column "Law, Liberty and License":

Once sodomy is made legal, what's next? -- Pedophiles who wish to have sex with children assert they should not be prohibited from doing so as long as the child "consents." There is a movement within psychiatry to have pedophilia removed from the shrinking list of "deviant" behaviors, as was done with homosexual practice. What is to prohibit them from doing so if pedophiles testify their fulfillment is being denied, and they feel discriminated against for practicing what, to them, is normal?

This sort of hysterical hyperbole shows the desperation of the religious right. Thomas is especially upset with Republicans who favor a gay-inclusive party, and complains that:

Former Republican Sen. Alan Simpson of Wyoming wrote a column for the Wall Street Journal on March 26 in which he argued in favor of the "gay rights" position opposing the Texas law. Simpson said "the proper Republican vision of equality" is "live and let live." Simpson thinks that laws against homosexual practice "are contrary to American values protecting personal liberty..." What Simpson argues for is not liberty but license.

Thomas is a regular panelist on CNN's "Reliable Sources" talkfest. Funny, isn't it, that GLAAD isn't trying to get Thomas kicked off the air (not that I'd favor that), while conducting an ongoing national campaign to intimidate the sponsors of MSNBC's weekly talkshow hosted by Michael Savage, who may be an opponent of gay activists and gay rights legislation, but describes himself as a libertarian on matters of sexual morality?

Family Values.

An op-ed in Sunday's Washington Post reveals how sodomy laws impact gay lives. In "About Fairness and My Family" Linda Kaufman writes:

We decided to expand our family four years ago. My partner, Liane, and I knew we could provide a loving home for another child in need. And my son particularly wanted a brother. Then we ran into a 211-year-old law prohibiting private sexual intimacy between consenting adults in the commonwealth of Virginia -- a law that is used mainly against lesbians and gay men.

Reading her story, you realize just how fundamentally immoral are social conservatives who would argue in favor of retaining these anti-gay statutes.
--Stephen H. Miller

Recent Postings

03/23/03 - 03/29/03

Both the liberal New York Times
and the conservative Christian Focus on the Family
predict the Supreme Court will strike down same-sex sodomy laws, but not statutes that apply to both same-sex and opposite-sex sodomy. Four states, including Texas, specify that only same-sex couples are forbidden to engage in these acts while heterosexuals are free to do so. Nine other states forbid "deviant" sexual practices whether engaged in by straight or gay couples.

While it would be best if all bedroom laws regarding private, adult consensual sex were found constitutionally impermissible, I'm not in the camp that sees striking down only the same-sex laws as a setback. Extending the principle that, under the constitution's equal protection guarantees, gays can't be singled out for special discrimination without a rational, or perhaps even a compelling, reason to do so would take us further along the road toward true equality under the law. It would even provide justification for overturning the remaining sodomy statutes state by state if it could be shown that, in practice, they are only used against gays. So while conservatives would claim getting rid of the laws in just four states as a partial victory, it could lay the groundwork for the ultimate defeat of all laws that relegate gays to the status of second-class citizens.

Why I Support School Choice.

A chilling case from Arkansas on what can happen when public school teachers and administrators are bigots. After 14-year old Thomas McLaughlin of Jacksonville, Arkansas was overheard telling a fellow student he was gay, administrators called his mother. An assistant principal then made him read aloud a Bible passage condemning homosexuality. Here are the local reports from the Arkansas Times and the North Pulaski Leader (yes, it's also all over the gay press, and in the New York Times).

A personal aside: As a kid in Ohio in the early sixties, a teacher once demanded that I eat bread during Passover before letting me leave the lunchroom, while all the other teachers -- including my own -- sat at the teacher's lunch table, averting their eyes to this scene. So I know a little something about public school bigotry.

Good for Me, But Not for Thee.

Norah Vincent, a past IGF contributing author, weighs in on why the Gay & Lesbian Alliance Against Defamation is wrong to try to silence TV host Michael Savage. The title of her L.A. Times column:
'Rights Just for Us': The Gay Left's Self-Serving Agenda. She writes:

GLAAD's Web site is a classic display of the gay left's endemic schizophrenia and myopic selfishness. At the top of the page, the group urges constituents to agitate... on behalf of gay rights to privacy. Immediately below, it applauds its own devious attempt to deny Savage his right to free speech.

Hardcore!

Fantasy Island?

The Advocate has an article about travel to Cuba
which, strangely enough, encourages readers to visit the country "before it becomes like every other tourist destination" (i.e., before it's freed from Castro's tyranny).

Here's CNN's take on the sodomy law arguments presented before the Supreme Court on Wednesday. An excerpt:

States should not be able to single out one group and make their conduct illegal solely because the state dislikes that conduct, lawyer Paul Smith argued for the Texas men.

"There is a long history of the state making moral judgments," retorted Justice Antonin Scalia. "You can make it sound very puritanical," but the state may have good reasons, Scalia added.

"Almost all laws are based on disapproval of some people or conduct. That's why people regulate," Chief Justice William H. Rehnquist added dryly.

Justice Stephen Breyer challenged Houston prosecutor Charles Rosenthal to justify why the state has any interest in peeping into the bedrooms of gay people.

I"m glad the article references the libertarian briefs against sodomy laws presented by the Cato Institute and the Institute for Justice. It also quotes from the Republican Unity Coalition's brief against the laws, which was written by IGF contributing author Dale Carpenter.

With little doubt, Rehnquist and Scalia will vote to uphold sodomy laws, probably joined by Thomas. Ginsburg, Breyer, Souter, and Stevens will find these archaic statutes unconstitutional. Kennedy and O"Connor, the two moderate conservatives, remain the wildcards. The decision is expected at the end of June.
--Stephen H. Miller

Check out Dahlia Lithwick's report in Slate on last week's sodomy law hearing before the Supreme Court. Here's a chilling exchange, given that the court's role is to protect fundamental liberties:

[Attorney Paul Smith, representing the gay couple convicted under Texas law] explains that the anti-sodomy laws have pernicious secondary effects (keeping gay parents from gaining child visitation or custody or employment, for instance) and Rehnquist wonders whether, if these laws are stuck down, states can have laws "preferring non-homosexuals to homosexuals as kindergarten teachers." Smith replies that there would need to be some showing that gay kindergarten teachers produce harm to children. Scalia offers one: "Only that children might be induced to follow the path to homosexuality."

Scary, indeed.

On Wednesday, the Supreme Court heard oral argument in Lawrence v. Texas, regarding the constitutionality of state laws that criminalize same-sex sex and thus provide a rationale for denying gay citizens equal treatment by the state in numerous areas. I'll have more to say after I hear how the case was presented and how the Justices appeared to respond. For now, take a look at an interesting letter in our Mail Bag on whether or not Clarence Thomas's arguably libertarian leanings may come into play, and if not, why not.

On the other topic referenced above, I haven't had much to say about the war because I don't view it as a gay issue. But clearly, there are some pertinent angles, including the spectacle of some gay activists trying to show who can denounce American foreign policy most vehemently. But I don't want to forget the plight of our gay and lesbian soldiers, and so I offer this, from the Servicemembers Legal Defense Network, which reports:

According to Pentagon statistics, during fiscal year 2002 the armed services reported 906 "Don't Ask, Don't Tell" discharges, down from 1,273 in 2001 and the fewest discharges since 1996. --

During any time of war or conflict, gay discharges have dropped. Gay discharges decreased during the Korean War, the Viet Nam conflict, the Persian Gulf War, and now again during Operation Enduring Freedom.

Which certainly begs the question of why the whole "lie and hide" charade isn't put to rest so that gay and lesbian service members can do the job their country needs them to do.
--Stephen H. Miller

IGF contributing author John Corvino is hitting the lecture circuit on the topic "What's Morally Wrong with Homosexuality?" Here's his upcoming schedule:

April 7 - Temple University, Philadelphia

April 8 - Penn State University

April 10 - Southwest Texas State University

April 11 - Southern Methodist University

April 17 - Muskegon Community College

For further information, contact him at j.corvino@wayne.edu.

By the way, aside from his heavy-hitting pieces on homosexuality and morality (noted top right on the IGF homepage), you can read Corvino's take on The Advocate's fall into irrelevancy, as evinced by that gay and lesbian newsmagazine's recent cover story innuendo about Supreme Court Justice David Souter. I especially liked this aside:

Are you surprised, by the way, that a gay-friendly justice [Souter] is a Bush Sr. appointee? Stranger things have happened. Consider that the late Justice Harry Blackmun, author of the magnificent dissent in Bowers, was appointed by Nixon, and that Justice Stevens, arguably the most liberal current member of the court, was appointed by Ford. By contrast, the author of the extremely homophobic majority opinion in Bowers, the late Justice White, was a Kennedy appointee.

Which just shows how wrongheaded all the partisan pig-headedness over court appointments can turn out to be.

A Chance to Get It Right.

As the Supreme Court prepares to hear arguments this week on the constitutional permissibility of state laws that criminalize the way gay and lesbian couples make love, the indomitable Andrew Sullivan weighs in with a piece in the New Republic (available online at andrewsullivan.com). Sullivan reminds us just how heinous a ruling the high court came down with some 16 years ago when it last visited the issue, in the Bowers v. Hardwick case. Here he reflects on the views of then-Chief Justice Warren Burger and Justice Lewis Powell:

Burger dismissed any notion of homosexual orientation as a part of human nature and derided any comparison to private heterosexual conduct as absurd. "Are those with an 'orientation' toward rape to be let off merely because they allege that the act of rape is 'irresistible' to them?" Burger wrote in a letter to Justice Lewis Powell during the Hardwick deliberations. ...

When Professor Laurence Tribe, representing the plaintiffs, talked of the sanctity of a person's home being invaded by cops policing homosexual activity, Powell was offended. "I must say that when Professor Tribe refers to the 'sanctity of the home,' I find his argument repellent," Powell spoke into his Dictaphone as the case was proceeding.

As you wait for the Supreme decision, which isn't expected before late spring or summer, you can peruse some of the amicus briefs this go-round in the box located on the IGF homepage.

Gender-blind Bind.

The American Civil Liberties Union is opposing a Wisconsin bill that would allow health clubs to offer single-sex exercise activities or memberships. According to a roundup in the Washington Post (click and scroll down), the ACLU contends the measure would be "a severe setback to the civil rights movement." Apparently, exercising on a same-sex basis in equivalent to posting a sign that says no Jews or blacks welcome.

Of course, unlike racial or religious discrimination, there is a rational reason why some men and women might want to self-segregate when doing knee bends and thigh extensions, regardless of any argument on behalf of the right of association, which the ACLU apparently no longer feels merits protection. And yes, I realize these are commercial establishments. But unlike going out to eat at a restaurant or to shop at a store, you join a gym pretty much as you would a private club, and so the right of association ought to be respected.

Recent Postings

03/16/03 - 03/22/03

It was nice to see the New York Times, which rarely recognizes libertarians as distinct from both conservatives and liberals, run Linda Greenhouse's article "Libertarians Join Liberals in Opposing Sodomy Law." Greenhouse observes:

Although libertarian-sounding arguments were presented to the court as part of the overall debate over the right to privacy in the Bowers v. Hardwick case [when the Court last upheld sodomy laws], they were not the solitary focus of any of the presentations then. The Institute for Justice had not yet been established, and the Cato Institute, which dates to 1977, had not begun to file legal briefs. Whether the arguments will attract a conservative libertarian-leaning justice like Clarence Thomas, who was not on the court in 1986, remains to be seen.

Greenhouse also makes clear how opposition to gay marriage is driving conservatives to support government intrusion into the privacy of gay people's bedrooms.

This is another local story, but I think it represents something much larger. In a recent election for the Arlington, Virginia County Board, the Virginia Partisans Gay & Lesbian Democratic Club condemned GOP board candidate Mike Clancy, who was endorsed by the local Log Cabin Republicans, for inviting Virginia's Attorney General, Jerry Kilgore, to a fundraising event. As they wrote in their press release, "Partisans Call on Mike Clancy to Cancel Fundraising Event Featuring Anti-Gay Attorney General Jerry Kilgore":

Partisans President Josh Israel explained "This is tremendously disappointing and disturbing. While Mike Clancy talks about inclusion, it is clear that he is standing with opponents of equal rights. Attorney General Kilgore toes the line of the Family Foundation, the leading anti-gay group in the Virginia. They oppose non-discrimination, they do not believe in the Separation of Church and State, and they, like Mr. Clancy, vehemently oppose reproductive rights for Virginia's women.

We sincerely hope that inviting this extremist to headline his fundraiser was an oversight on Mr. Clancy's part. If he doesn't share the views of Attorney General Kilgore, Pat Robertson, and the Family Foundation, we call on him to cancel it immediately."

The release was prominently featured in the issue of the Washington Blade newspaper distributed just before the election, which Clancy lost.

But get this: at the Clancy fundraiser, Kilgore met with Log Cabin representatives and stated, for the first time, that his office does not discriminate in hiring on the basis of sexual orientation. You might think that such a statement doesn't amount to much, but it led the state's rightwing Family Policy Network to issue their own critical press release titled "VA Attorney General Kilgore Woos Homosexuals" (it's not online yet, but see the similarly themed "Republican Party of VA Assists Radical Homosexual Activists"). According to the Family Policy Network:

Despite tremendous success in courting pro-family voters over the years, the Virginia Republican Party continues to flirt with activist homosexuals in an attempt to expand its political base. The most recent event wherein an otherwise conservative Republican leader sought to appease homosexual activists involves state Attorney General Jerry Kiglore. --

Six leaders of the so-called "Log Cabin" homosexuals met with Kilgore recently in what they called their first "official" meeting with the state's top Republican. The homosexual activists boast that Kilgore promised them "he does not believe in discrimination against anyone and said that his office does not discriminate in hiring on the basis of sexual orientation."

(For Log Cabin's take on the Kilgore meeting, see "Log Cabin Meets with Kilgore: First official contact with AG")

Of course, if the Democratic critics had their way, board candidate Clancy wouldn't have invited Attorney General Kilgore to his fundraiser, and Kilgore wouldn't have met with the Log Cabin representatives, and the religious right wouldn't have been so unhappy about the outcome. But, once again, meaningful dialog between gays and conservatives is the last thing in the world that many "progressives" want to see happen.
--Stephen H. Miller

Some timely points are made by student William Goodwin in this March 13 column for the University of Southern California's Daily Trojan newspaper, "Palestine's oppression of gays should not be ignored."