IGF CultureWatch

Why They Won't Take "Yes" for an Answer. For 30 years, gay advocates in New York State have tried to add "sexual orientation" to their state's human rights law in order to protect gays from discrimination in employment, housing and education. This year, they"re finally poised to succeed. GOP Governor George Pataki has not only promised to sign the Sexual Orientation Non-Discrimination Act passed by the Democratic-majority state assembly (the legislature's lower house), but he's pressed leaders of the GOP-controlled state senate to finally come onboard as well. The senate leaders agreed to bring up the measure next week and to support its passage without amendments, which will prevent anti-gay conservatives from planting "poison pills." So naturally, some gay "progressives" now feel compelled to turn against the measure they"ve championed -- and used as a fundraising and mobilization touchstone -- for the last three decades.

As Jonathan Capehart writes in the New York Daily News, openly gay state senator Tom Duane of Manhattan and his allies in the Democratic leadership are behind this effort. If memory serves, while a member of the New York city council Duane was part of an effort to block the city from buying public kiosk restrooms for its streets -- because the handicapped wouldn't be able to use them. No compromise for these folks; it's perfection of zilch. Of course, a more cynical view is that if they stop the gay-rights bill in favor of a transgender-inclusive replacement with minimal chance of passage, or if -- by opening it up for amendments -- they allow conservatives to scuttle it, the gay politicos can continue mobilizing their base by playing the victim card for another 30 years.

Sodomy Laws vs. Limited Government. Attorney and scholar Glenn Harlan Reynolds (of instapundit fame) has penned an excellent op-ed making a conservative argument for barring sodomy laws. He writes that the Framers of the Constitution "may not have been libertarians, exactly, but they certainly were not enthusiastic regarding untrammeled government power at either the state or federal level." Moreover, referencing the words of 19th-century Supreme Court Justice Joseph Story, often cited by conservative jurist such as Robert Bork (no friend of gays, to be sure), Reynolds writes:

In other words, where laws infringe on important rights like property or "personal liberty," the very "nature of republican and free governments" may offer some restraint, even in the absence of specific constitutional language barring such laws. And this is not because of some fancy new right, but because of longstanding principles that the government should not regulate conduct that causes no harm to others.

These are the kinds of conservative-appealing arguments the sodomy-repeal attorneys will need to put forth if they want to win the votes of the non-liberal Justices on the Court. Let's hope they do.
--Stephen H. Miller

The Troglodyte. Senator Trent Lott (R-Miss.), the once and soon-to-be-again Senate Majority Leader, is in hot water -- and deservedly so -- for failing to censor himself during a birthday bash for retiring centenarian Sen. Strom Thurmond (R-S.Carolina). Lott joked that the country would have been better off if Thurmond had won the presidency in 1948, when he ran on the break-away "Dixiecrat" segregationist ticket. Said Lott:

"I want to say this about my state: When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead we wouldn't have had all these problems over all these years, either."

Those in attendance reportedly gasped.

The story has been widely reported, but most accounts failed to draw a connection with another significant Lott gaffe, back in 1998, when he compared gays with alcoholics and kleptomaniacs. Said Lott then, when asked his view about homosexuality:

"It is [a sin]....You should try to show them a way to deal with that problem, just like alcohol...or sex addiction...or kleptomaniacs."

Trent Lott is not a fire-breathing hater, nor is he an unreconstructed segregationist. Often it seems he doesn't even realize the implications of what he's saying. Nevertheless, unlike George Bush's amusingly twisted syntax, Lott's remarks convey a political worldview that is rather scary. So why is this man honored with the powerful position of Majority Leader? For fear of losing white GOP votes in the "solid South," I suspect. But the way forward is not tethered to the bigotries of the past, and if the GOP wants to be the majority party of the future it will have to come to terms with that fact.
--Stephen H. Miller

Speaking Their Language. The Orange County Register ran this editorial making a libertarian argument for why the Supreme Court should hold sodomy laws unconstitutional. The editorial reads in part:

So sodomy laws are objectionable in a free society. But are they forbidden by the U.S. Constitution? Roger Pilon, director of constitutional studies at the Cato Institute, thinks so.

The first clause he cites is the 9th Amendment, which says in its entirety: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That was included in the Bill of Rights to remind us that just because the framers hadn't mentioned an individual right didn't mean people didn't have it. In that reminder can be found a right to privacy, to sexual freedom, or the more general right of a free citizen to be left alone by government if he or she is not harming another person.

Mr. Pilon also believes the 14th Amendment, which states in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," forbids laws that intrude into private bedrooms. "That clause was meant to be the principal font of rights against the states, to protect the freedom and personal integrity of the individual," he told us. Justice Clarence Thomas has been especially interested in the "privileges or immunities" clause as a guarantee of individual liberty, and he could use it in this case to good effect.

Too often gay activists, who"ve come of age in the cocoon of liberal-left culture, don't understand that conservatives and libertarians not only don't view the world through the same lens as liberals do, but neither speak nor respond to the same rhetorical language as liberals. That may be one reason why when a sodomy-law case last came before the Supreme Court, 16 years ago, gay advocates failed to convince a conservative-leaning court that repeal wouldn't be just one more example of liberal judicial activism beyond the intent of the Constitution. Let's hope this go-round the pro-repeal lawyers will be able to argue the case in a way that can sway conservatives. It can be done, and Cato's Roger Pilon is perhaps showing the way.

A British Example. The British newspaper The Guardian reports that Tony Blair's Labour government will propose recognizing same-sex "civil partnerships" and granting these the same rights given to married couples (though civil partnerships would remain a separate category from "marriage"). Significantly, a leading Conservative Party figure says Conservatives will support the plan:

The shadow home secretary, Oliver Letwin, indicated that the Conservatives would support the measure when legislation was introduced. "Whilst we attach a huge importance to the institution of marriage we do recognise that gay couples suffer from some serious particular grievances," he told BBC Radio 4's Today programme. "If what the government is coming forward with is indeed a set of practical steps to address a set of practical problems that affect people, then we will welcome them."

And in America we"re still debating whether homosexuality should remain a criminal act!

But What About the Transgendered? I do have one pet peeve about the reporting of the above story by The Guardian. It begins:

Gay men, lesbians and bisexual people are to be offered the same rights as married couples, a government minister indicated today".

But really, isn't including "bisexuals" a bit of a stretch? If they"re in an opposite-sex relationships, they already have the right to marry. If they"re in a committed same-sex partnership, then it's a gay relationship. Referencing bisexuals in this regard seems like politically correct sophistry.

The Race Card. IGF contributor Rick Rosendall authored a brave column (it ran in Boston's Bay Windows and elsewhere) on racial guilt-mongering in the corridors of the gay left. Writes Rick of a recent National Gay & Lesbian Task Force conclave, which included sessions for people of color only:

The preferred mode of communication at Creating Change resembles not conversation but emotional hostage taking. It is for the designated victims to harangue, and for the rest to pander. Each year the ritual starts all over again, as if for the first time.

NGLTF's Sue Hyde responded with a letter arguing that:

There are LGBT people of every color, ethnicity, class, age, race, condition of birth and gender who are joining together to make a stronger, more powerful and more fully representative movement for social justice, equality and freedom. Some of the work to build this movement will be accomplished when the voices of women, young people, people of color, old people, transgender people and intersex people can be heard more clearly, which logically requires that they be given the space, the time and respect to hear themselves first.

Listen, I don't doubt that the diversity-first crowd is sincere in its ideological beliefs and actually thinks all of this is somehow "progressive." But the ceaseless laundry-listing of victimized subsets leads not to a unity of the many (which requires a focus on commonality despite differences), but to seemingly endless balkanization and a competition to see who can exhibit the greatest wounds. This has never been healthy.
--Stephen H. Miller

In America? Columnist Steve Chapman has an excellent piece in the Chicago Tribune (free registration required) on the sodomy law case now before the Supreme Court. He writes:

One night four years ago, sheriff's officers -- entered the dwelling and barged into a bedroom. But all they found was a couple enjoying a pastime commonly enjoyed by couples in their bedrooms, and I don't mean organizing the closet. You might guess that at this point, the cops would have blushed, apologized and left as fast as their feet would carry them. Wrong. They arrested the couple under the Texas anti-sodomy statute. "

For [Tyron] Garner and [John] Lawrence, there was the indignity of being jailed, hauled into court and fined for consensual acts carried out in private. On top of that, their lawyers note, they are now disqualified or restricted "from practicing dozens of professions in Texas, from physician to athletic trainer to bus driver." If they move to some states, they'll have to register as sex offenders.

And there are those who claim these laws have no real impact on our lives.

Shareholders Rule. Lockheed Martin Corp. is one of the world's largest defense contractors with some 125,000 employees. That's why it's significant that the company has now changed its employment policy to include a ban on discrimination based on sexual orientation, and will also begin offering domestic partnership benefits sometime next year. According to the Rocky Mountain News, thanks goes to an ambitious group of college students who lobbied Lockheed's shareholders.

In another corporate development, the board of CBRL Group Inc., the parent company of Cracker Barrel Old Country Stores restaurants, has voted to add sexual orientation to the company's non-discrimination policy. As reported on the Gay Financial Network site:

Cracker Barrel drew national attention in 1991 when it instituted a company policy that called for terminating employees "whose sexual preferences fail to demonstrate normal heterosexual values which have been the foundation of families in our society." At least 11 workers were fired as a result.. -- [But this year] A shareholder proposal to add sexual orientation to the company's non-discrimination policy would have received a majority of the votes cast Nov. 26.

Remember whenever you hear corporations vilified as dark, nefarious powers unto themselves that not only do they need to please the consuming public in order succeed, but they are also owned and ultimately responsive to the will of their shareholders, who can organize, petition, and vote for policy changes. Talk about "economic democracy," we have a far higher degree than ever existed under state socialism!
--Stephen H. Miller

Defending the Indefensible. How many right-wingers are willing to argue that gay sex should be outlawed and sexually active gay people prosecuted and sent to prison? Probably not many, but count on a good number trying to support sodomy laws (now once again before the Supreme Court) as serving some useful function, such as "upholding morality," while not actually encouraging that they be effective enforced. Still others will hold that it's a matter best left to states legislators, as if there were simply no federal Constitution to provide equal legal protection to a subset of the citizenry disliked by local bigots.
Already, we"re seeing headlines such as "Governor defends ban of same-sex intercourse," wherein Texas Gov. Rick Perry said of his state's law to punish same-sex couples for having sex, "I think our law is appropriate that we have on the books." Then why not really enforce it, Governor?

Wrong About Everything. The New York Times has a story today about Justice Lewis Powell, who during his time on the Supreme Court managed to consistently oppose the fundamental principle of equality before the law and equal treatment for all by the state and its institutions (that's my take, not the opinion of the Times!). Of Powell, who died in 1998, his

embrace of racial diversity as a valid goal in [state] university admissions, expressed in a solitary opinion in the 1978 Bakke case to which no other justice subscribed, not only established a rationale for affirmative action but frames the current debate a generation later.

Powell was also the deciding vote in Bowers v. Hardwick, the sodomy law case. His fellow liberals expected a supporter of race-based preferences to side with them. But Powell, we're told by the Times, had

no personal experience with gay rights and found the issues raised by the case confusing and somewhat threatening. "I don't believe I've ever met a homosexual," he told one of his law clerks while the case was pending. "[T]he law clerk, who in fact was gay, told the justice, "Certainly you have, but you just don't know that they are." "

A book published last year on the history of the gay rights issue at the Supreme Court, "Courting Justice," by Joyce Murdoch and Deb Price, asserted that there have been at least 22 gay law clerks at the court, and that in each of six consecutive terms in the 1980's, one of Justice Powell's four law clerks was gay. "Doubts still gnaw at Powell's ex-clerks about whether they could or should have done more to educate him," the authors wrote.

And indeed they should have.

For what it's worth, Powell later indicated he had probably erred.

On rereading the case, "I thought the dissent had the better of the arguments," he told a reporter in 1990.

That and a buck fifty will get you a cup of coffee. Thus, the legacy of liberal Justice Lewis "through in the towel" Powell, supporter of university admissions by skin color, and of sodomy laws -- two issues once more before the High Court, which has a chance to set right what it previously did so wrong.
--Stephen H. Miller

Supreme Court to Get It Right -- at Last? Back in 1986, in its infamous Bowers vs. Hardwick decision, a deeply divided U.S. Supreme Court ruled states may criminalize consensual, non-commercial same-sex behavior among adults -- even in the privacy of their own bedrooms. This appalling miscarriage of justice put up a major roadblock to full legal equality for gays and lesbians. Now, after 16 years, the Court has finally agreed to revisit its ruling.

Much has changed over those years. Today, just four states (Texas, Kansas, Missouri and Oklahoma) punish only homosexual sex, while nine states ban consensual sodomy for everyone -- although prosecution is generally limited to those unfortunate gay couples who are, for whatever reason, "caught" (i.e., straights doing it in a parked car are told to move along; gays get arrested and a criminal record as sex offenders). But the problem isn't really actual arrests for private sex. Rather, because these laws make sexually active gay people into criminals per se, they are used to justify all manner of government discrimination -- from denying child custody or even visitation rights (some state courts have told a divorced gay parent to jettison their lover or stop seeing their child), to preventing gays from becoming cops, to prohibiting same-sex couples from seeking the benefits states provide to opposite-sex couples. If the Court reverses itself and finds state sodomy statutes are unconstitutional, it will be much harder to deny gay citizens the rights of other Americans. If it goes the other way, it will be a huge setback. Stay tuned...

Addendum: I should have mentioned that the Lambda Legal Defense and Education Fund is spearheading the case before the Supreme Court -- especially since I recently criticized them for their over-wrought protest against Miss America (triggered by her support of pro-abstinence education).
--Stephen H. Miller

Good News! More Sex; Less Lies. A new Centers for Disease Control survey of American men finds that more men say they are having sex with other men than in the 1980s. As Reuters reports:

surveys collected since 1996 showed between 3.1% and 3.7% of men reported having sex with another man during the past year. This is a sizeable jump from 1988 estimates of between 1.7% and 2% "

Of course, this 3.1% to 3.7% of American maledom should be viewed as a minimum baseline, since many MHSWM (men having sex with men) won't admit it. In the words of the CDC's Dr. John E. Anderson, who co-authored the report: "Male-to-male sex is still a sensitive, stigmatized behavior, and...is likely to be underreported to some unknown degree. Even though these recent estimates are somewhat higher than other surveys, they probably are still low." No kidding. (Plus, the survey wasn't intended to count those gay people who don't happen to be sexually active.)

Another survey finding: attitudes about the acceptability of same-sex activity have also improved:

between 1996 and 2000, up to 34% of survey respondents said they believed homosexuality was generally not wrong, while only 24% of people who completed the survey between 1988 and 1994 had similar attitudes toward same-sex activity.

Can anyone doubt that these trends will continue to do anything but rise, with significant socio-political ramifications for issues such as same-sex unions?

Breaking Up Really Is Hard to Do. Couples who were legally united via a civil union in Vermont are finding they can't dissolve their unions if they reside in other states, leaving them in a kind of legal limbo as regards inheritance rights and other matters. One of the problems: the federal Defense of Marriage Act and similar state statutes, which state courts interpret as barring them from ruling on same-sex union matters. As the Washington Post reports:

Outside of Vermont, civil unions are not recognized, so they cannot be ended. ... The U.S. Constitution's "full faith and credit" clause requires states to recognize "public acts, records and judicial proceedings" from other states, but the courts have never applied that to same-sex unions.

This problem will only get worse as more couples united in Vermont later seek to disentangle themselves. The answer is for other states, at the very least, to recognize Vermont civil unions as a legal contract. But that would mean they'd have to stop stigmatizing gay couples, of course.
--Stephen H. Miller

Two Views. I guess it all depends on how you look at things.

From the Log Cabin Republicans, Republicans Sweep Senate and House, Making History, While Gays Win Most Ballot Issues:

In all, 92% of LCR-endorsed House Republican incumbents were re-elected, and 100% of LCR-endorsed Senate candidates won or advanced to a run-off. Also, LCR-endorsed candidates for governor were victorious in New York (Governor George Pataki), Massachusetts (Governor-elect Mitt Romney), Maryland (Governor-elect Robert Ehrlich) and Georgia (Governor-elect Sonny Perdue). -- In Ohio, Governor Bob Taft (R) won overwhelmingly despite strong opposition by far-right groups to his selection of LCR-backed Jeannette Bradley (R) as his running mate. Bradley, a strong supporter of same-sex partner health benefits for public employees, will be the first African American female lieutenant governor in the nation's history. --

From the anti-gay Family & Culture Institute, Opposition to Homosexual Agenda Propelled GOP Victories Across Nation:

the fact that clear pro-family stances on homosexuality played well as major campaign issues rebuts a central argument of groups like the homosexual Log Cabin Republicans (LRC) and Republican Unity Coalition (RUC). For years, these groups have argued that GOP candidates must reach out to "moderate" voters either by taking pro-homosexual positions or - as RUC advises - making "homosexuality a non-issue" in their campaigns. But even in liberal, heavily Democratic states, the election results provided evidence that principled opposition to homosexual activism helped candidates win. ...

[In Florida,] Gov. Jeb Bush, the president's brother, clearly embraced the state's law banning homosexual adoptions. ... [In Georgia,] Rep. Saxby Chambliss (R) defeated incumbent Sen. Max Cleland. The state Republican Party pounded Cleland for his vote against the Helms amendment prohibiting federal funding of schools that ban the Boy Scouts. "

Yes, I"m partial. But weighing both arguments, I think the anti-gays come up awfully short. Aside from a stray city council or state legislative race here or there, all the key victories they claim were decidedly not decided by "family values" issues at all. Meanwhile, Log Cabin's involvement in so many winning races was, in and of itself, a victory for gay inclusion.

Lambda Goes Astray. Just why is Lambda Legal Defense, whose mission is to fight legal battles against gay discrimination, going ballistic over Miss America's pro-abstinence views? Yes, the advocacy of abstinence-only education for America's youth, as opposed to publicly funded safe-sex education, is a topic worth raising and debating, but by Lambda? Take a look at their website, dominated by denunciations of Miss America 2003, Erika Harold. It's just bizarre. Are there no cases of government discrimination to litigate? Have all the "sodomy laws" been repealed? Is gay marriage now legal? Just what gives? We expect the censorious activists over at the Gay & Lesbian Alliance Against Defamation to reproach those who express views not in step with the party line and demand contrition. It's a shame that Lambda has fallen into this trap.

Update: Since this posting, Lambda's website has been changed and the lead coverage is now, more appropriately, the Supreme Court case to overturn state sodomy statutes. The Miss America brouhaha has been reduced to only the second most important item on the website.
--Stephen H. Miller

Beyond Left and Right. Check out this piece from Sunday's Washington Post by political reporter Thomas B. Edsall, titled
The Sum of Its Parts No Longer Works for the Democratic Party:

But perhaps the most significant recent development in the makeup of the electorate was found in an exhaustive August survey of 2,886 adults by The Post, the Henry J. Kaiser Family Foundation and the Harvard University School of Public Health.

The survey found that the nation's youngest voters, who turn out in very low numbers on Election Day, are significantly different from the rest of the electorate. Their libertarian views cut across the social and economic spectrum. They support gay marriage and are more suspicious of religious values in public life, making them fair game for the Democrats. But they are also the only age group with majority support for partial privatization of Social Security (62 percent) and school vouchers (56 percent), both Republican issues.

As these voters grow older and turn out in larger numbers over the next decade, they are the only age group in which a plurality of people identify themselves as Republicans, edging Democrats by a 46-to-41 margin. This suggests not only that the Democratic Party cannot depend on the electorate of the future to restore its competitiveness, but also that the party faces intensified conflicts between its traditional constituencies and the more libertarian young electorate.

For the nation's sake as well as their own, let's hope the Democratic Party moves away from its reactionary opposition to Social Security reform, legal liability reform, and school choice, and begins to put the nation's well being above pandering to government employee unions and trial lawyers. And let's hope the Republican Party continues to break ranks with its own reactionary constituencies, which want to use the power of big government to control and diminish people's private lives.
--Stephen H. Miller

Achievable Measures. I return to the topic of pushing for achievable victories in Congress that will improve the status and well being of gay citizens, as opposed to sweeping gay-rights measures with little, if any, chance of becoming law. One example: I just read in a tax-advice newsletter that certain proposals regarding Individual Retirement Accounts (IRAs) are likely to be debated in the upcoming Congress, including "Allowing rollovers for non-spouse beneficiaries. Current law does not allow this."

If I understand this correctly, you can currently leave the funds in your IRA account to a non-spouse beneficiary, but they"ll have to cash out the IRA rather than maintain the funds in a tax-benefited retirement account. Income taxes also have to be paid on the inherited proceeds of a traditional IRA. A law change could allow beneficiaries to transfer the inheritance into their own IRAs, and to do the same with funds inherited from a 401(k) plan.
As the newsletter puts it:

When you add a possible repeal of the estate tax to the above mix, it amplifies the benefits of leaving more IRA funds to beneficiaries who can inherit them estate tax free.

Don't smirk; this sort of common-sense measure could make a big difference in the financial well being of a great many surviving gay partners. Yes, it would be better to have legal gay marriage, or even federally recognized civil unions. But that's not going to happen anytime soon; reforming some of the hundreds of laws that disadvantage gay partners relative to spouses is something that CAN be done, law by law. And one of the biggest such laws involves Social Security benefits, which can now only be inherited by a spouse. You contribute year after year throughout your entire working life, but if you die unwed in the eyes of the law, your partner gets nothing. Enacting personal (that is, privatized) Social Security accounts that you can leave to whomever you choose would be a godsend to many gay survivors (ironic, isn't it, given the adamant opposition of left-liberals to meaningful Social Security reform).

Do such steps risk "weakening marriage"? To some extent, yes. That's unfortunate. If social conservatives would wake up and support same-sex marriage or even marriage-equivalent civil unions, this wouldn't be an issue. Until that day, it's important to work toward increased legal equality in vital areas such as inheritance; it might even put pressure on the social conservatives to change their tune.
--Stephen H. Miller