IGF CultureWatch

Not long ago, the "family values" crowd thought the best way to oppose gay rights was to slander gay people. To them, being gay was synonymous with behavior that was objectionable, anti-social or illegal. Republican politicians insisted that marriage had to be "defended" from gay couples. Paul Cameron, a "psychologist" whose junk science is still a staple of right-wing Web sites, has written that gay people are "sexual bums" who suffer from a "preoccupation with sex" and "seek excessive distraction" through sex, drugs and other risk-taking behaviors.

The political argument that followed from this picture was simple and insidious: Why should these people be allowed to marry one another, or be protected against hate crimes or job discrimination?

But lately, it seems, Republicans and the religious right have stumbled onto something even more deviously effective. Rather than talking about icky behavior, they are modeling icky behavior, and forcing the rest of us to talk about it. Their antics practically guarantee that the media will discuss homosexuality in the same breath as pedophilia, prostitution and anonymous sexual encounters. This is an evil-genius political strategy worthy of Karl Rove.

Consider:

• Sen. Larry Craig, the Idaho Republican with a 100 percent rating from the American Family Association, unwittingly plays footsy with a cop, gets himself arrested, then goes on television to indignantly declare, "I am not gay!" The impression many Americans get: being gay means picking up men in bathrooms.

• Mark Foley, the former Florida Republican congressman, gets caught having racy online chats with teenage males, resigns from Congress, then blames his behavior on a drinking problem and checks into rehab. The message: gay men are pedophiles, and they deal with their messy, embarrassing lives by turning to alcohol. At best, they're to be pitied. At worst, they're creepy criminals.

• Ted Haggard, the evangelical minister disgraced by allegations by a male prostitute about illicit sex and methamphetamine use, undergoes religious "therapy" and is subsequently pronounced "completely heterosexual." The message: being gay is an illness that causes you to do drugs and hang out with hustlers.

The truth is that these behaviors are not about being gay (any more than Sen. David Vitter's patronage of the D.C. Madam was about being straight). If anything, they are about being closeted and repressed - conditions that Republicans and many churches have encouraged by treating homosexuality as a source of shame rather than a normal human variation.

Through their bumbling and hypocrisy, Haggard, Foley and Craig have not only disgraced themselves, they have inflamed old stereotypes - stereotypes that were being rapidly discarded as more and more gay people came out and shared the realities of their respectable, everyday lives with families and friends.

Now it may be that much more difficult for these same gay citizens to have an informed, rational dialogue with their fellow Americans about legitimate political and legal issues. Even if many Americans have shed old ideas and become more comfortable with homosexuality, will the media give equal time to sober debates about equal marriage rights, hate crimes legislation and job discrimination? Unlikely.

The more they're told about boys, bathrooms and prostitutes, the less Americans will learn about the real lives of their gay neighbors and co-workers. That might be a windfall for anti-gay activists and wedge-issue politicians. But it's a civic and moral disaster for the rest of us.

First published January 27, 2004, in Res Gestae, a student-edited newspaper at the University of Michigan Law School.

At a recent lunchtime event on judicial nominations, a student prefaced his question by explaining that he was a member of the Federalist Society because he preferred judges "who interpret law rather than make law."

I don't know this student, so nothing here is intended personally. But I can't understand how someone can finish even a semester of law school and claim he can readily distinguish between "interpreting" the law (something, apparently, a card-carrying Federalist does) and "making" law (something activist liberal judges do).

Conservatives have gotten a lot of mileage with this idea. It appeals to non-lawyers who believe the proper role of judges is like turning a crank. You take the relevant inputs (facts, precedents, statutes, whatever), "apply" some law, and out pops objective, principled justice. A few more advances in Westlaw and we might not even need human judges.

Interestingly, when a controversial political or cultural issue is involved, the result this system is expected to produce almost always comports with the tastes, will, or prejudices of the majority.

But jurisprudence goes awry when "activist" judges sabotage the machinery by substituting their "arbitrary will" (President Bush's words in the State of Union) to achieve their own ideological ends. A sure sign this has happened is when the result supports the rights or aspirations of a political or cultural minority.

In short, many conservatives, full of phony populist indignation, tell a dishonest, oversimplified story to an ill-informed public. This provides cover for conservatives to appoint their own judges - many of whom are committed not to some tedious process of cranking the legal machinery, but rather to making law that reflects their policy preferences.

The mechanical conception of judges' work may be appropriate to trial courts, which are bound to apply law as they find it. Yet often what trial courts apply is common law - law that was made by other judges. The common law's enduring strength is its ability to evolve alongside human understanding and norms of behavior while gradually shedding outdated shibboleths.

Thus, one important role of appellate courts is to evaluate a law's rationality, workability, and constitutionality. This is not an inherently liberal or conservative enterprise.

Every student knows the law is full of open-ended questions. What did the legislature "intend?" Does text "bear the weight" of a given reading? Did the court below "abuse its discretion?" When is stare decisis inappropriate? What is "reasonable?" The idea that conservative judges aren't as capable or willing to manipulate these fudge factors as avidly and effectively as liberals sometimes do is the essential lie of the conservative legal movement.

Take one example: In the 1996 Hopwood case, the Fifth Circuit gave a major victory to conservative agitators and struck down affirmative action at the University of Texas, overthrowing longstanding legal, legislative, and social consensus. The arguments for doing so may or may not have been persuasive. But don't say this wasn't activism.

How about Justice Scalia's ongoing obsession with overturning the settled law of Roe v. Wade? Roe may well have been flawed as a matter of legal reasoning. But Scalia, a Federalist high priest whose "textualism" is often confused with judicial minimalism, has no interest in "interpreting" that decision. He wants to blow it up.

The Federalists can't have it both ways - grooving to every cranky Scalia eruption, yet publicly claiming to want more disinterested judicial drones, and all the while praying for the retirements of actual independent-minded moderates like O'Connor and Kennedy.

Recently the Massachusetts Supreme Judicial Court explained why denying the fundamental right of marriage to same-sex couples is unfair, no longer supported by persuasive reasoning, and a violation of the state's constitution. This obviously makes for major change in the law. Yet the court did not just issue an edict. Its opinion is there for all to read, and should stand or fall on its own accuracy, honesty, and rigor.

But I have yet to hear a conservative political or legal commentator engage the history, findings, or logic of the actual Massachusetts opinion. That isn't the stuff of sound bites. Conservatives seem content to let thugs like Bill O'Reilly - who simply smears any judge he disagrees with as an undemocratic radical - instruct the public on these matters. And so, many Americans confuse prejudice and sectarian dogma with legal reasoning.

The legal right needs to give up the conceit of its purity. Thoughtful conservatives and liberals have different visions of justice and social utility, and these visions will affect how they shape the law. We can only insist on judges whose work is clear, exacting, and intellectually honest - transparent to citizens, and persuasive to those who are trained to evaluate legal argument.

Meanwhile, law students should know better than to describe our vocation with slogans and simplifications.

First published in The American Prospect online edition, September 8, 2003.

New York City's Harvey Milk School - believed to be the country's first public high school for gay, lesbian, bisexual and transgendered students - recently opened in an expanded incarnation after years as a small, two-classroom program. Whatever its educational merits, the school is the latest example of a dangerous and constitutionally troublesome trend: the rise of a parallel legal and civic universe for homosexuals.

On the surface, this parallel universe looks like progress. Pressed to give gays access to the benefits of marriage, Vermont responded in 2000 by creating civil unions. California and Hawaii now offer same-sex couples a form of registered domestic partnership, with some of the state-conferred rights and benefits of marriage. Other states are likely to follow.

Similarly, the Harvey Milk School is an attempt to redress the bullying and harassment that gay high-school students often face from their peers, as well as the indifference their situation generates from unsympathetic teachers and administrators.

But other aspects of this parallel universe are more grudging accommodation than substantive progress. Gays and lesbians are adopting children, yet they often need to go judge-shopping, either because state law makes adoption by same-sex couples difficult or because judges simply use their discretion to deny such requests. Meanwhile, the military's "don't ask, don't tell" policy allows gays and lesbians to serve their country but forces them to stay in the closet.

America is talking and arguing as never before about gay equality, and, as measured by public opinion, gays are winning many of these arguments. But visibility in the public square is not the same thing as legal parity. And the emerging parallel universe is actually denying gays the full rights of citizenship, forcing them to settle for a mere illusion of equality.

After all, civil-union and domestic-partnership arrangements have been politically palatable in part because they allow states to sidestep the issue of giving gays the same marriage rights as everyone else.

Alternative gay classrooms and schools, though well-intentioned, signal the failure of public schools to maintain safe, tolerant educational environments for all students.

In their quest to adopt, same-sex couples must search out friendly judges and jurisdictions, often far from home, adding an additional, gay-specific burden to an already difficult process.

And, of course, "don't ask, don't tell" enshrines hypocrisy, technically letting gays serve while allowing the Pentagon to avoid its real problem: the fact that military discipline, so effective in regulating other aspects of life in the armed forces, goes strangely soft when it comes to anti-gay harassment.

All of this would be much different if race or ethnicity were at issue. It's not just that military segregation and anti-miscegenation laws were abolished more than a generation ago. Under the strict judicial scrutiny that government-sponsored discrimination receives when racial or ethnic minorities are involved, there is simply no place for "separate but equal" legal and civic institutions.

In the last 50 years, the Supreme Court's jurisprudence on race has recognized government-sponsored discrimination for what it is - not a matter of a few outdated or ill-considered laws but a pervasive and historically rooted system of bias that once locked blacks into second-class citizenship. More recently, the justices have taken a similar approach to gender discrimination. The high court's broad application of the 14th Amendment's equal-protection clause now compels lower courts to automatically look with suspicion on policies that provide differential treatment based on race or gender. But not so with sexual orientation, because the judiciary refuses to connect the dots.

Gays thus occupy a unique position: No other minority group is the subject of as much public and political attention on so many fronts while remaining the target of as much blatant, government-sponsored discrimination - discrimination that the 14th Amendment, as interpreted and applied by the Supreme Court, seems impotent to address.

The Court's recent decisions on gays carry the rhetoric but not the mandate of true equality. In 1996, Romer v. Evans overturned a Colorado ballot initiative that imposed special political disadvantages on gays. This summer's ruling in Lawrence v. Texas struck down criminal penalties for homosexual behavior. Despite the importance of their specific holdings, both decisions shrank from declaring a broader constitutional standard of review for anti-gay discrimination.

Such a standard would put lower courts and lawmakers on notice that gays must be regarded as equal citizens in any sphere that government controls. It would also shift the burden to government to prove a compelling reason when it denies gays rights and responsibilities that other citizens take for granted.

For the most part, gays accept - indeed, encourage - their parallel universe in the name of incremental progress, and this is understandable. After all, civil unions and domestic partnerships are better than nothing. Too much fuss about adoption might lead to more pestering by social conservatives to ban gay adoption altogether. Recalling the torment they may have suffered at the hands of bullying classmates, many gay adults probably applaud the idea of separate classrooms or schools where gay students can have some semblance of a normal education.

When separate institutions are created for them, gays even appear to benefit from a sort of benign discrimination. After all, many straight couples might prefer a civil union or state-sanctioned domestic partnership over traditional marriage - and nerds, punks and Christian fundamentalists might prefer their own classrooms in the public schools. But not only is benign discrimination just as illiberal as invidious discrimination, it gives ammunition to those (like the New York state senator who has filed suit against the Harvey Milk School) who would employ the rhetoric of "special rights" and "reverse discrimination" to oppose gay equality.

Such benign discrimination almost resembles affirmative action, but it differs in one key respect: Affirmative action remains salutary because it helps channel minorities out of spatial segregation and into the civic mainstream. The gay parallel universe, by contrast, channels gays who are already in the spatial mainstream into legal and civic segregation.

The Constitution is the last place where Faustian bargains should be struck. So long as voting majorities continue to exercise their hegemony in order to maintain heterosexual supremacy in the public sphere, American jurisprudence must come to grips with reality and recognize gays as the sort of "discrete and insular minority" - to the borrow the words of one famous 14th Amendment decision - that the equal-protection clause has evolved to protect.

Courts would then have to apply heightened scrutiny to open doors for gays on equal terms to all government institutions and programs. And gays would have to resist settling for separate-but-equal treatment. Those who choose to formalize their relationships should have the option of equal marriage. Those who wish to serve their country should do so without hypocrisy. Those who want to adopt should be allowed to without winks, nods and hassles. And educators must work harder to ensure that gay students have the same educational opportunities as other students.

Of course the judiciary cannot by fiat make gays equal in the eyes of other citizens. Private discrimination is a different matter. But gays will not be equal in the eyes of their fellow Americans until they are equal in the eyes of their government.