“This law is no different. . . “

The U.S. Olympic Committee is doing its best to tread a very fine line for Sochi:

The athletes are always going into countries with laws different than his or her own country. They’re going to agree with those laws in some ways, they’re going to disagree with those laws in other ways.  It’s our strong desire that our athletes comply with the laws of every nation that we visit. This law is no different.

It’s true that law, in the abstract, means roughly the same thing no matter where you are: It is the rules citizens and even visitors are expected to obey.  And because Olympic athletes by definition must visit many countries, it’s hardly unreasonable to expect that they should not intentionally break the laws of any country in which they compete.

But is the Russian law truly no different from any other law?  Certainly athletes at the Sochi games should not murder people or steal or commit rape.  Even laws that have less universal agreement should generally be obeyed, both out of respect and prudence.

The Russian law, though, prohibits propaganda.  In itself, this is an indication of illegitimacy, at least by modern standards.  The law also prohibits only propaganda of a very specific kind.  Here is the closest I have been able to come to an English translation of Article 6.21 of the Code of the Russian Federation on Administrative Offenses:

Propaganda is the act of distributing information among minors that 1) is aimed at the creating nontraditional sexual attitudes, 2) makes nontraditional sexual relations attractive, 3) equates the social value of traditional and nontraditional sexual relations, or 4) creates an interest in nontraditional sexual relations.

One of the cornerstones of law is clarity.  People must know, within reason, what the law requires or prohibits.  This law is a model of vagueness.  What are “nontraditional sexual relations?”  For that matter, what are “traditional” ones?  Can Russian TV run “Sex and the City?”  Discuss.

Still, we clearly know what the Duma and Vladimir Putin intended — Shut up about the gay rights.  More specifically, shut up in front of the children.

This a a modern spin to remove the stigma against laws about propaganda.  Everyone wants children protected.

But children are everywhere.  More specifically, any form of journalism in the modern world, from NBC to the internet, may be seen by minors, which means the practical effect of this law is to prohibit any public discussion of gay rights.  The invocation of children is superfluous to the goal of banning pro-gay speech.

And that equates exactly with prohibiting any chance of achieving gay rights.

Absent an explicit equal protection guarantee, minorities have little but speech with which to make their case.  By definition, minorities must persuade a large number of the majority if they are to have any peaceful political participation at all.  Majorities seldom change their minds just because.

The Russian propaganda law is ideally designed to prohibit not just Russian discussion of gay equality, but to make sure it doesn’t happen when Russia is on the world stage.  At its best, this law is little more than Don’t Ask Don’t Tell.  At its worst, it is the first step toward a set of Nuremberg Laws for Russia’s lesbians and gay men.

This makes it not just important to mock the law, it makes it imperative.  However, that can be done respectfully, even joyously.  Rainbow fingernails? Perfect. Holding hands?  Sweet.  These and hundreds more small gestures skirt the law without violating it.  Maybe the rainbow fingernails are a fashion statement.  And holding hands is just holding hands, right? Heck, in post WWII Russia, this was a postage stamp!

The discussion of gay equality in Russia has a long way to go, but reliance on state control of information will not help it be seen as a modern nation.  It will be uncomfortable for Russia’s population to experience, within its borders, the increasing support among heterosexuals for gay equality.  But there is no wishing — or legislating — away that conversation.

Back to Basics

Same-sex marriage came and went in the US Supreme Court, and the the most reactionary Republican dominated state legislatures responded by — passing new laws restriction abortion.  While the high court was deliberating a case challenging the power of Congress to prohibit or punish same-sex marriage under state law, Texas, Alabama, Mississippi, South Dakota and Indiana were all exploring creative ways to provoke the high court to revisit Roe v Wade.

The lack of an outcry about U.S. Windsor is partly due to the fact that the opinion left those states’ anti-marriage laws intact.  But the renewed focus on abortion and Roe, at a time when the highest court in the land was setting down a marker about marriage equality suggests something else is at work.

That something else can be seen in the non-reaction in California to the opinion overturning the notorious Prop. 8. In 2000, California voters passed Prop. 22, an initiative statute prohibiting same-sex marriage, with 61% of the vote.  The state Supreme Court overturned Prop. 22 as a violation of the state constitution in 2008, which prompted Prop. 8, an initiative that amended the state constitution itself to prohibit same-sex marriage.  Prop. 8 got a little over 52% of the vote, but a win is a win.

So California’s voters must be furious about the decision in Hollingsworth v Perry, right?

If so, it’s hard to see.  Less than two days after the ruling, the Ninth Circuit Court of Appeals took the final step to permit same-sex marriages again in California, and while a very few of the usual suspects showed their faces to television cameras at the subsequent marriages throughout the state, there are no signs of outrage among the voters whose will was thwarted.

Opposition to same-sex marriage is different from opposition to abortion.  There is a real and substantial moral question with abortion: At what point does human life begin?  In the 40 years since Roe, that moral question has remained alive and vibrant, and the constitutional argument about abortion has seldom flagged.  Moral feelings about abortion start strong and tend to stay strong.

Not so for same-sex marriage, where moral feelings may have started strong, but have weakened substantially over time.  The moral consensus around same-sex marriage was collapsing even before the Supreme Court weighed in.  With each new iteration of the issue, voters see less reason for opposition, more reason in the arguments made for equality.  The moral argument against same-sex marriage is no more than the moral argument against non-procreative sexual activity; once heterosexuals can see their own procreative sexual desires in the broader context of a world in which procreation is controllable, the idea of sex for other reasons — pleasure, relational intimacy, emotional bonding or just for the hell of it — moves homosexuals from their historical outsider status to a proper role as fellow members of the human family.  Procreation is a good thing, but it is not all that sex is for.

The shift back to abortion for the old guard of the GOP is some evidence that this cultural shift on same-sex marriage is taking hold.  It is harder and harder to argue against the images of joyous couples getting married, and now joyous heterosexual friends and family are joining in the celebrations.  Connection and inclusion are moral instincts, family imperatives, that it takes an effort to deny.

There is still a strong sense that abortion is worth the effort.  For a small minority, the fight against same-sex marriage will continue to be a priority.  But the continent on which they once stood is becoming more of an island every day.


Gay Marriage and the Federal Budget

If you haven’t heard much about the effects of DOMA’s downfall on the federal budget, that’s because there isn’t expected to be much of an effect. True, various benefits such as health and survivor benefits will now be paid to spouses of civilian workers and military personnel, and some gay persons will be entitled to Social Security benefits based on spouses’ earnings. On the other hand, it would not be surprising to see married gay couples’ income profiles falling more often on the “marriage penalty” rather than the “marriage bonus” territory on this interesting tax chart. And a host of benefit and subsidy programs, most importantly Medicaid but also other means- or income-tested programs, will save money once a spouse’s assets and income can be taken into account. All in all, a 2004 CBO study suggests the impact on the federal budget is likely to be very slightly positive. Josh Barro has the details here. He concludes:

The fiscal benefits aren’t a crucial reason to support same-sex marriage, but they do lend support to one of the “conservative” cases for it. Marriage is a structure through which people depend on each other, so they don’t have to depend on the government. For gay men and lesbians to take advantage of that fiscally friendly option, the government has to make it legal for us to marry.

The Repentant Gingrich?

So Newt Gingrich’s ex-wife says that he asked for an open marriage while he carried on an affair with his mistress (now wife) Callista. Meanwhile, candidate Gingrich speaks with a straight face about the sanctity of “one man, one woman” marriage:

“I will support sending a federal constitutional amendment defining marriage as the union of one man and one woman to the states for ratification. I will also oppose any judicial, bureaucratic, or legislative effort to define marriage in any manner other than as between one man and one woman.”

His defenders from the religious right—including Rick Perry—claim that Jesus offers forgiveness and redemption to repentant sinners. Presumably, in their minds, anyone in a committed same-sex relationship counts as unrepentant.

But the distinction they’re trying to make between divorce and homosexuality doesn’t hold up, even on their own principles.

Yes, the Bible speaks of forgiveness and redemption. But if marriage really is “until death do us part,” then Gingrich is still committing adultery with Callista. Don’t take my word for it, however–take Jesus’:

“Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery.” (Mark 10: 11-12)

This double standard is worth pointing out, frequently, publicly and forcefully.

Power (I’m Afraid) to the People

Leaders in the gay rights movement do us all a disservice — gay and straight alike — when they stir up passions over non-issues.  Yesterday’s argument in California’s Supreme Court over standing in the Prop. 8 case is the latest example of whipping people into a needless frenzy that will ultimately feed cynicism.

The case was not about any gay rights issue.  In the course of the proceedings over appealing the district court’s decision overturning Prop. 8, a fascinating and unique issue arose about whether the proponents of an initiative have standing in federal court to appeal it.  This question came up because neither the Governor nor the state Attorney General chose to appeal, leaving the proponents as the only ones willing to carry the burden.  However, under federal court rules, parties must have proper standing to bring the case to the court of appeal.  The federal courts have very limited jurisdiction over cases, unlike state courts.

Normally, some part of a state’s government will defend a citizen-initiated law if necessary.  But both the Governor and the Attorney General felt the court got it right, and declined.  The proponents, therefore, stepped in.  However, some cases have said initiative proponents don’t have standing in the federal courts.  But no case dealt with the issue here, where there is no one to defend an initiative except the proponents.

There is a far more at stake in this case than just gay equality.  In California, the courts have consistently ruled that the legislature — and the executive and the judiciary — have only derivative powers.  Those powers do not come from God, but from the people, who are the ultimate source of all government.  The Prop. 8 appeal brings that into the spotlight.  If the government will not defend a law passed by the people using their superior legislative power, and the proponents of that law cannot, themselves, defend it, then, in fact, the government is superior to the people, and can veto their efforts.

It is, of course, convenient for those of us who believe strongly in equality, to have the appeal die for want of a champion.  That is what made Ted Olson’s life so hard yesterday, as the justices hammered him about his theory.  Olson  is nothing less than a superstar, and watching him defend what is ultimately an indefensible position was a marvel.  We cannot be grateful enough to have him on our side.

There are certainly some significant legal questions around the edges of what he was proposing, and it was a joy watching him try to tempt the judges with those.  But Justice Carol Corrigan called him out for “nibbling” at these distractions.  The real issue in this case is whether the government can nullify a vote of the people by denying them a voice in the federal courts.  If this is a gay issue, it means that gay rights requires placing our complete and total trust in the government, now and forever.  We’re fortunate in this case that our interests are aligned with those of California’s current politicians.  I’m very skeptical about this as a permanent rule, though.

I have no doubt at all that Prop. 8 is a violation of the federal constitution, and that the district court’s ruling will finally be upheld.  But the easy win will come at too great a cost.  The corruption and overreach in California’s legislature in 1911 that led to the initiative is never far from my mind.  Even when I agree with the political branches on the merits, as I do here, I think it is too dangerous to aggrandize the government at the expense of the people’s ultimate authority over government.  While I think the majority vote was invalid under the federal constitution, I’d rather give that majority its voice in the courts now, and maintain for the future the ability to control the state government if that ever becomes necessary again.

And when “we” ultimately lose this case (I will not be surprised to see a 7-0 vote in favor of the proponents), I hope the anger is not directed at the courts.  That is the risk of the fund-raising tactics that drive these non-issues — that the anger and fear our leaders are stirring up will be misdirected.  The Prop. 8 case, itself, is our issue as lesbians and gay men.  The standing case is our issue only to the extent we are citizens who have an interest in how much power we have granted to our government.

Pride and Prejudice

I have never seen anything quite like the Minnesota House debate over the proposal to amend their state constitution to ban same-sex marriage.  The amendment passed last night, 70-62.

In the first place, I’ve seen a lot of legislative debates on this subject, and five and a quarter hours is a lot of talking on a single subject.  I don’t think California has ever broken the three-hour mark on same-sex marriage, and that was years ago.

But the length of the discussion wasn’t what made it so remarkable.  While Joe Jervis says, “The vote came after impassioned debate by legislators on both sides,” in fact there was no debate at all.  Every member who spoke opposed the amendment – and did I mention that went on for over five hours?

The only voice in support was the amendment’s author, Rep. Steve Gottwalt, who had no backup from anyone in his party.  And even he never weighed in on why it might be good to amend the constitution to prohibit same-sex couples from marrying.  His argument was about the virtue of legislative abdication.  This shouldn’t be our decision, it belongs to the voters.  In his cameo speaking role, he kept repeating that his opinion on same-sex couples, were he to have one, would be irrelevant to his authoring of the amendment.  The proposal wasn’t about same-sex couples or opposite-sex couples, or, really much of anything at all.  He never budged from this non-position, and then went into radio silence, along with every pro-amendment Republican in the body.  One other Republican, Rod Hamilton, did share how deeply he had struggled with his vote, but that was the extent of it.  He, too, offered no argument in favor of the constitutional amendment.

In contrast, John Kriesel, a Republican Iraq war vet, was truly impassioned in his opposition.  He spoke about the American values he fought for, and explained that the amendment was exactly the opposite of what he understood our principles to be.  Rather than Gottwalt’s dodges, or the silence of the rest of his party, Kriesel was eloquent and manifest about his vote: “I’m proud of this.  It’s the right thing to do,” he said.

Three other Republicans and all but two of the Democrats could say the same thing.  So what about those 68 other non-voices, that majority in favor of – nothing?  This is what the public discussion of gay equality has come to on the right, a combination of cowardice and embarrassment.  Again, in decades of paying very close attention to legislatures, I have never seen such a stone wall (you should pardon the expression).  In the past, opponents have always had something to say.  They don’t any more.

That is a testament to the merits of their position.  They are willing to let NOM’s commercials do their talking for them, since even they know it isn’t seemly for elected officials to so openly appeal to the vestiges of prejudice.  Far from having arguments they can take pride in, they want to say as little as possible, knowing that history will judge them badly and hoping to minimize the damage.  That seemed to be Gottwalt’s strategy.  He knew, going in, that the other side had the better of it, and the best he could do was avoid owning up to the position he’d wound up having to champion.


So now it will be up to the voters of Minnesota.  How much of the GOP’s prejudice will they be willing to adopt as so supremely important that it is worthy of being placed in their state’s constitution?

The rules for passing a constitutional amendment in Minnesota are tougher than some other states, and that is an important fact.  It must be passed with a majority of all votes cast in the 2012 general election, not just those cast on the amendment, itself.  The increasing support for equality across the nation will also play a role.

But there is one other factor.  Minnesota Governor Mark Dayton has said he would fight the amendment with “every fiber of my being.”  That kind of public leadership from the state’s governor can make a difference.  California’s former governor once made a similar promise on Prop. 8; but like other promises he’d made, it wasn’t one he meant.  He spoke not one public word against the amendment, and only offered a tepid statement for use by the opposition.  I urge Minnesotans to do what California could not, hold their Governor to his word.

The rallying cry for this election should belong to Rep. Kriesel, though.  Looking down at his desk, and then up to his fellow representatives, he said, “If there was a Hell No button, I’d press that.”

Remembering Antonio Pag

Antonio Pagán died on January 25th. Although in 1991 he became one of the first two openly gay men elected to the NYC city council (and the first openly gay Hispanic to do so), he caught heck from the LGBT left for his moderate, centrist positions. Tom Duane, the other first openly gay NYC lawmaker, endorsed Pagán's straight, and very, very, left-wing opponent, former incumbent Miriam Friedlander, when she sought to regain her Lower East Side seat from Pagán in 1993 (Pagán easily won re-election). He later served as the employment commissioner under Mayor Rudy Giuliani.

Pagán was for the small businessperson and against forcing taxpayers to support welfare subsidization as a way of life. He had been executive director of a nonprofit developer of affordable housing, but advocated against low-income public housing programs that perpetuated squalor and dependency. The LGBT left never forgave him for championing private sector solutions over big government, and dismissed him as inauthentically gay. But he was a groundbreaker and deserves to be remembered fondly.

More. Reader "avee" comments:

The New York Times called Pagán "a bundle of contradictions." The idea that you could be a forceful advocate for gay equality, and oppose the liberal left welfare agenda, does not compute for the Times writers.