IGF CultureWatch

It’s easy to second-guess the arguments lawyers make in high profile cases, and while that’s pretty much what I will be doing, I want to make clear that the arguments made in favor of marriage equality at the U.S. Sixth Circuit Court of Appeals this week were very good.

But an important colloquy could have gone better, in my opinion, and since we haven’t heard the last of it (there are many, many more cases still pending), I wanted to add my own thoughts about how to think about the question.

It was about a case I’ve mentioned before. Mark Joseph Stern at Slate describes what happened, focusing on the swing justice at the Sixth Circuit,  Jeffrey Sutton:

In a 1972 case called Baker v. Nelson, the Supreme Court dismissed a challenge to Minnesota’s gay marriage ban “for want of a substantial federal question”—that is to say, the court didn’t see a constitutional flaw in the ban. The case was decided through a summary affirmance of a lower court ruling, meaning the justices didn’t hear arguments or write a real opinion. But a summary affirmance is generally considered to be binding precedent on lower courts

You might think that Justice Anthony Kennedy would confront Baker—the only Supreme Court precedent to deal directly with the merits of state gay marriage bans—when he overturned DOMA. But instead, he ignored it, perhaps in an effort to leave the whole question of state-level bans for another day. Every district court that has since struck down these bans worked around Baker by citing a somewhat ambiguous loophole: A summary affirmance might not be controlling precedent when it has since been undermined by “doctrinal developments.”

The question for Sutton, then, is simple: Does the trio of great gay rights cases (Romer, Lawrence, and Windsor) render Baker’s holding completely moot? Or does Baker remain binding precedent? Sutton seemed to lean toward keeping Baker on life support for now and letting the Supreme Court pull the plug, noting, “Even when you see one line of cases crumbling, lower courts aren’t allowed to infer, and anticipatorily overrule, this other line of cases. So as a matter of hierarchy, aren’t we stuck with Baker?”

But then Sutton seemed to walk back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” At the end of his colloquy on the topic, he seemed a little stumped, and more than a little frustrated.

Judge Sutton had a sound legal argument for following Baker, but he was missing the forest for the trees because, at exactly that moment, the U.S. Court of Appeals for the Sixth Circuit was hearing appeals in six cases from four states.

In 1973, it was possible for the highest court in the land to say that they could not see a federal question in a case where two men were denied the right to marry one another. In contrast, whatever else can be said in 2014, there is no doubt at all that there is a very prominent federal question about that subject. If there were not, then what on God’s earth was the Sixth Circuit doing? Not a single one of the challenges to state bans on same-sex marriage have been filed and left to gather dust. Serious lawyers with serious clients have answered every one of those complaints. While it is possible to debate the merits of their arguments, they are making serious arguments about something even they view as a serious question.

Stated another way, Baker is incompatible with the very fact that these cases are now before the courts. Of course there is a federal question today. Whatever else can be said about the presidential value of summary affirmances in general, the premise of the affirmance in Baker was based on premises about sexual orientation that have no continuing validity at all.

Judge Sutton could ultimately decide that Baker has not been overturned by the U.S. Supreme Court. As Dale Carpenter points out, that would actually be the least harmful loss for us, since it would require only about a paragraph of text in the Sixth Circuit opinion (about as much as the Supreme Court devoted to the Baker affirmance). The opinion would not need to go any further than saying “We are bound by Baker unless and until the Supreme Court overturns it.”

But that is to ignore what is right in front of the court’s nose. Something much more consequential than the Supreme Court has overtaken, if not overturned Baker. What was unimaginable to the courts then is common discourse now. Every court that has heard the argument over same-sex marriage knows for a fact that Baker v Nelson is a nullity.

Via Reason:

A Denver [gay bar catering to Bears] has been cited by the state’s Division of Civil Rights for discrimination because it refused to let a gay man dressed in drag enter. …

You know what gay people love? Having the government tell them how their various subcultures work and think on the basis of talking to a bunch of people at a bar and looking at pictures. … And to the extent that there are social rifts between various parts of the gay demographic, nobody should want the state government policing how they should be interacting with each other.

The report concludes:

This case is a good demonstration as to why it’s so important to hold a hard line on the right to freedom of association. The Wrangler should have the right to pursue whatever customer demographic it wants for its bar.

Agreed.

More. “Alvie” comments, perceptively:

The most sought-after clubs in NYC and other big cities have a guy outside who selects who gets past the rope and is allowed to enter, based on how they’re dressed and how they look. The only reason this jerk can sue the Wrangler is because he’s claiming sexual orientation/gender identity discrimination, which is a protected class under local statute. But as the story notes, he’s not actually transgendered—just a jerk who wants to sue and use the state to make others do his bidding.

Yes, these laws can be and are abused.

Many Democratic candidates “aim to match President Obama’s feat in 2012, when the incumbent used topics such as same-sex marriage and contraception as weapons to offset his vulnerability on the economy,” reports the New York Times, adding:

Democrats profit politically — among young voters, college graduates, single women, blacks and Latinos — from the sense that they welcome these cultural shifts while Republicans resist them.

“That’s why people are voting for us these days — not for our economic prowess,” said Mark Mellman, a Democratic pollster.

Indeed.

This, however, is encouraging:

The pro-gay marriage group Freedom to Marry will hold a series of meetings in Iowa this week aimed at encouraging young Republicans to run for slots as delegates to the national 2016 convention to try to impact the party platform. …

“We want for the presidential process in 2016 [that gay marriage will] be an issue nationally that Republicans are debating,” said Tyler Deaton, the campaign manager for the Young Conservatives for the Freedom to Marry effort. He added, “Our intention is to bring a record number of young delegates to the convention … and make some history.”

Good luck to them.

In the Aug. 4 issue of The New Yorker, Michelle Goldberg provides a fascinating look at a subset of radical feminists, the self-described “radfems,” who are regarded by other feminists and transpeople as TERFs (which stands for “trans-exclusionary radical feminists”).

The radfems bar transwomen from their events (including the Michigan Womyn’s Music Festival) and seek to exclude them from womens’ spaces, including restrooms and lockerrooms. Worse, the radfems point to certain ex-trans (or “detransitioners”) who once identified as transgender but no longer do, as evidence that transgenderism isn’t about intrinsic gender identity but is a further manifestation of male privilege.

For instance, Goldberg cites radfem theorist Sheila Jeffreys who:

calls detransitioners…“survivors,” and cites them as evidence that transgenderism isn’t immutable and thus doesn’t warrant radical medical intervention. (She considers gender-reassignment surgery a form of mutilation.) “The phenomenon of regret undermines the idea that there exists a particular kind of person who is genuinely and essentially transgender and can be identified accurately by psychiatrists,” she writes. “It is radically destabilising to the transgender project.” …

Explaining female-to-male transition is fairly easy for her (and for other radical feminists): women seek to become men in order to raise their status in a sexist system. Heath Atom Russell, for example, is quoted as attributing her former desire to become a man to the absence of a “proud woman loving culture.”

But, if that’s true, why would men demote themselves to womanhood? For reasons of sexual fetishism, Jeffreys says. She substantiates her argument with the highly controversial theories of Ray Blanchard, a retired professor of psychiatry at the University of Toronto, and the related work of J. Michael Bailey, a psychology professor at Northwestern University.

The radfems view of being transgendered seems eerily similar to what social conservatives believe about homosexuality—it’s an unhealthy deviation that people should be steered away from and not an intrinsic aspect of who someone is.

I don’t know what to make of this, and perhaps author Goldberg doesn’t either. But it’s evidence of how those who take a militant stance on behalf of remaking society beyond oppression often, on inspection, are revealed to have their own deep-rooted prejudices. That’s a good lesson to remember.

On the other hand, organizing to deny the radfems the right to hold their own meetings and events by threatening to boycott commercial venues also seems intolerant on the part of trans activists. What’s needed are dialogue and efforts at education and understanding, not attempts at suppression coming from both camps.

The Daily Caller looks at How Republicans Can Win Millennial Voters:

And that thing people keep saying about how Republicans can’t win young people if they’re anti-gay? It’s worse than you think. …
So yeah, social issues have to go, but that’s not all. You’ve got to do more than keep talking about how capitalism will save the young if they just give it time. This generation wants to see results. Literally. When it comes to government spending, they don’t care how they get jobs, so long as something works. … And if you want to sell them on limited government, here’s a tip: Offer concrete proposals for limiting it.

Also, from The Hill: Lobbyists Quietly Advise GOP on Gay Marriage shift:

“I have had meetings with some of the most rock-ribbed social conservatives in Washington,” said Gregory Angelo, the executive director of the Log Cabin Republicans. “A lot of them see the writing on the wall, they see the direction the country is headed.”

A Pew Research Center poll released earlier this year showed that more than 60 percent of Republicans under the age of 30 support gay marriage; 43 percent of those aged 30–49 were in favor.

Many Republicans will never evolve. But the party will, and probably sooner than many think. The lack of high-level response from party leaders to Obama’s executive order on anti-discrimination, or to recent appellate rulings on marriage equality, is one indication.

On a separate tangent (because it’s not enough for its own post), the idea that gays should rally to the defense of the Export-Import Bank (taxpayer dollars indirectly subsidizing selected private companies, referred to by some as crony capitalism or corporate welfare) because Obama appointed a gay man to run it and its critics include tea party activists, is beyond ludicrous.

“Rep. Michele Bachmann (R-Minn.) trotted out her customized views on gays and American culture,” blogs Erik Wemple on the Washington Post site. And though it was not his aim, he shows why she’s the gift that keeps on giving to the LGBT left. That is, her bigotry works to discredit the legitimate concerns some of us have raised about over-reaching by LGBT progressives in a way that constrains rather than expands individual liberty.

To start with, here (as related via Wemple’s posting) is what Bachman recently said:

This is an effort [by gay activists] to have government coerce, force speech and behavior. And it’s being pushed and advocated by the gay community. This is their ultimate goal. It’s to not allow for diversity of opinion on this issue … I believe that we’re going to see coming an effort for multiples in marriage. … I think they want to legalize that. I think also they want to abolish age-of-consent laws, which means . . . we would do away with statutory-rape laws so that adults would be able to freely prey on little children sexually. That’s the deviance that we’re seeing embraced in our culture today.

I’m not going to waste time pointing out the hallucinatory bigotry in those last charges. But as I said, the ugliness of her prejudice makes it much more difficult to engage in constructive criticism of the sort that Damon Linker recently provided. Linker is the author of The Theocons, a critique of the religious right. Recently he wrote:

Liberals usually pride themselves on defending minority rights against the tyranny of the majority—and above all when the tyranny threatens to become more than metaphorical through the use of the coercive powers of the government. Yet when it comes to the rights of religious traditionalists, many liberals seem indifferent, and more than a few seem overtly hostile. …

When the theocons threatened to turn secular liberals into a persecuted minority, I objected. And now, with gay rights activists treating social conservatives like heretics and federal regulators threatening to force religious traditionalists to violate their consciences, I’m doing the same.

“But you’re saying we need to tolerate the intolerant!” — I see that objection every time I write something critical of liberal dogmatism and bigotry.

To which my stock response is: Yes, that’s exactly what I’m saying — because that’s what liberalism is, or should be, all about. Toleration is perfectly compatible with — indeed, it presupposes — disagreement. That’s why it’s called tolerance and not endorsement or affirmation.

This is similar to points made by George Will.

Unfortunately, tirades such as Bachmann’s make having any kind of honest conversation about the LGBT movement treading beyond working for equality under the law into, well, something else entirely, much more difficult.

Like Stephen, I found the lack of reaction to the CDC report on the number of self-reported homosexual Americans pretty interesting. For those of us old enough to remember being gay in the 70s (that’s the 1970s, for younger readers), it’s hard to imagine that these low numbers, well below the Kinsey-ish estimates of 10%, did not cause much of a stir.

But, indirectly, IGF occassional contributor John Corvino, helped me think about why this is important. His new article at Commonweal, “Thinking Straight,”  isn’t about the numbers game; it’s a great analysis of an essay by Michael Hannon called “Against Homosexuality,” which tries to turn Queer Theory against the notion of gay rights. John does a fine job of explaining how wrong Hannon is, but John’s main point is that while categories for sexual orientation do have their problems, they serve a very practical and important purpose. Absent a fairly clear understanding that there are other people who are attracted to members of their own sex, and that homosexual people have an ordered place in society, it’s very hard for young lesbians and gay boys to find a healthy place in their developing psyches for their sexual feelings.

The closet distorted the more ordinary process heterosexual kids go through, from awkward embarrassment to adult relationships. For generations, homosexual kids went from awkward embarrassment to public silence, possibly awkward heterosexual marriage, or at best awkward adult companionship.

In that context, those fighting for gay equality in the 60s and 70s had to establish something new in public discourse: the fact that there were people who deserved the rights we were claiming. Back then, it was hard to get people willing to testify at public hearings. Remember, those were the days when it was still a crime in most states to even be homosexual. We had heterosexual allies, but those of us who wanted to change the laws had the burden of demonstrating that, despite public appearances, there really was a homosexual population that was affected.

The 10% figure served as the proxy for all those closeted people. It wasn’t accurate, but it had some science behind it. And it provided a little comfort to help bring a few more people into the public eye as open homosexuals.

Now that the closet is eroding (it’s not gone by any means — look how hard it was for Ian Thorpe to come out), we seem to have reached critical mass in the number of people who are comfortable being open about being gay. Today, it’s hard for either the general public or, most importantly, young homosexuals, to avoid knowing something about the fact that homosexual people have a place in society, with or without a spouse.

And it turns out that it doesn’t make a difference how many of those people there are. Whether it’s 10% or 2% or 1.6%, the actual number is not what’s at issue. The equal protection clause doesn’t have a numerical threshold. If the law, itself, is being used by a majority (however large) to unfairly discriminate against a minority (however small), the constitution requires the courts to assure that there is a good reason (sometimes a very good reason) for the differential treatment.

So, for myself, I am going to be spending my time in other pursuits as people continue to exert time and resources trying to figure out how many lesbians and gay men there are. Now that we’re on the path to full equal protection of the law, everything else is just demographics.

Occasional IGF Culture Watch contributor Dale Carpenter shared the thought that “This will be the formulation that will finally allow religious traditionalists to publicly support same-sex marriage,” referring to how Republican Rep. David Jolly (Fla.) announced his support marriage equality:

“As a matter of my Christian faith, I believe in traditional marriage. But as a matter of Constitutional principle I believe in a form of limited government that protects personal liberty. To me, that means that the sanctity of one’s marriage should be defined by their faith and by their church, not by their state. Accordingly, I believe it is fully appropriate for a state to recognize both traditional marriage as well as same-sex marriage.”

Jolly becomes the eighth current Republican member of Congress to come out in support of gay marriage, joining Sen. Susan Collins (Maine), Sen. Rob Portman (R-Ohio), Sen. Lisa Murkowski (R-Alaska), Sen. Mark Kirk (R-Ill.), Rep. Ileana Ros-Lehtinen (R-Fla.), Rep. Richard Hanna (R-N.Y.), and Rep. Charlie Dent (R-Pa.).

Said Rep. Dent in announcing his support, “As a Republican, I value equality, personal freedom and a more limited role for government in our lives. I believe this philosophy should apply to the issue of marriage as well.”

The Human Rights Campaign’s blogging on President Obama’s long-awaited executive order barring federal contractors from discriminating against LGBT employees focuses more on celebrating Obama than on heralding a step forward by LGBT Americans. The posting, With Executive Order, Obama Takes His Place in History, tells us:

“The order, profoundly consequential in its own right, dramatically underscores President Obama’s own LGBT legacy of achievement, unmatched in history … Viewed in full, President Obama’s legacy of achievement is unmatched in history…including the largest conferral of rights in history to LGBT people via the implementation of the Windsor decision….”

There’s also a link “for more information on President Obama’s six-year record of accomplishment.”

Here’s how I would have put it: “Finally, after 5-plus years of ignoring pleas from a voting bloc that has disproportionately supplied funds, labor and votes to his party, President Obama ordered that contractors working for the federal government his administration oversees can’t discriminate against LGBT workers. If organizations claiming to be leading the fight for LGBT equality had exerted more pressure instead of acting as supplicant lapdogs, it would have happened much sooner….”

A look at shifts occurring within the religious right, via National Journal. The gist: the religious right is experiencing “a generational shift from offense to defense,” from using government power to impose “family values” to seeking to carve out a sphere of “religious liberty” for religious dissenters:

The Hobby Lobby case is in many ways a model for the new strategy being pursued by the Religious Right. It represents a way to engage in politics that is less aggressive than the tactics of the previous generation of believers. Back then, the key phrase was “family values”; now, it is “religious liberty.” You see it everywhere—from contraception court cases to legislation to think-tank conferences.

This shift in rhetoric has moved the Religious Right from offense to defense in the culture wars, as Buzzfeed’s McKay Coppins put it last year. The main aim, it seems, is not to oppose contraception or gay marriage but to be left alone: to extract a promise that religious conservatives will not have to photograph a gay wedding or pay for someone else’s birth control. It is a version of the Religious Right that even the libertarian wing of the Republican Party—a historical rival for influence within the GOP—can get behind.

While some of us believe religious conservatives do, in fact, have a right to the exercise of their religion without undo state interference, others believe that allowing any such deviation is anathema.

More. Via Reason: “Libertarians are the ones who tend to both support same-sex marriage and people’s right not to be compelled to work in service of one; to want to get both our bosses and the government out of birth control decisions; and to take free speech, freedom of conscience, freedom of association, and personal autonomy very seriously.”

Conservatives and progressives…not so much.

Furthermore. Michelangelo Signorile’s “ENDA Nightmare“—ENDA passes the House attached to another year-end bill with GOP support and becomes law. Yesterday’s must-pass legislation becomes today’s “dangerous religious exemption” because it doesn’t allow the state to regulate hiring decisions at religious organizations.

Worth repeating. Seriously? Model trains?