IGF CultureWatch

Bart Hinkle takes note that the libertarian Cato Institute “has done a great service by filing a brief in Virginia’s gay marriage case that makes a conservative argument for the liberal position” favoring marriage equality. He writes:

But what of tradition? Traditionally, marriage has meant the union of one man and one woman. Well, Cato retorts, “no tradition can supersede the Constitution.” That is a direct quote from Justice Antonin Scalia in a 1990 case. A nice touch. Cato goes on to cite several other cases, all making the same point as Scalia did. “If a so-called tradition or history of discrimination were sufficient to justify perpetuating the discriminatory practice,” writes [Cato’s Ilya Shapiro], “our public schools, drinking fountains, and swimming pools would still be segregated by race. . . . Carving out of the text of the 14th Amendment an exception for traditional forms of discrimination would have strangled the Equal Protection Clause in its crib.”

Virginia enacted its marriage amendment specifically to prevent gays and lesbians from exercising a liberty exercised by straights. As Cato’s brief makes abundantly clear, it is precisely the sort of state-imposed discrimination against a caste of people the 14th Amendment was written to prevent.

The brief, filed jointly by Cato and the Constitutional Accountability Center, can be read here. An overview by Cato’s Ilya Sharpiro’s can be read here.

Jonathan Rauch blogs, “Lots of people compare the opposition to gay marriage and the resistance to interracial relationships. It’s a flawed analogy. Here’s why.” Excerpt:

I recently talked to a gay-rights organizer whose job includes building support for marriage equality and anti-discrimination laws in conservative states….When I asked if the analogy to racism was helpful, she groaned. No analogies are helpful, she replied, but this one is especially counterproductive. People snap into a defensive crouch and shut down. No one will trust or talk to someone who calls them, in effect, a racist, the worst thing you can be in America. Winning converts, finishing the fight, she said, requires taking people on a journey toward seeing marriage and homosexuality in a new light. It’s a process, and an accusatory approach aborts it.

I am proud to be a signatory of “Freedom to Marry, Freedom to Dissent.” There is a petition where others can join us, though obviously it’s totally cool if you disagree.

A friend told me he agreed with the full statement, but pointedly asked, “What purpose does this serve, exactly.” That’s a great question.

I, at least, was concerned, not just with the resignation of Brendan Eich, but the broader impulse among some of our supporters to take victory too far. The extreme, quoted in the statement, is the writer who just wishes everyone who opposes equal marriage rights would just shut up.

There are times when I understand the impulse, but it’s something to be resisted. A liberal society does not enforce conformity of opinion, and it should not — either through the law, or even through majorities — punish those whose opinion is deemed wrong.

That is the impulse behind the pressure on Eich — that he had to pay the price for his donation to Prop. 8. Under California law, it’s not illegal to pressure your CEO to quit over political reasons, or much of anything else. And I acknowledge, as several of Mozilla’s board members did, that Eich’s donation (and some other reported activities) made him a difficult fit.

But he is not the only one who has been subject to a growing sense, not of success among our supporters, but of something close to vengeance against those who oppose equality. We are prevailing in the political debate, and there is a long way to go. We need to let the other side fully air their arguments, even the bad or intolerant ones. We need to have the strength of character to accept even hateful insults, particularly those of us who are homosexual. We will never eradicate arguments and opinions we think are absurd or offensive, nor can we silence them.

That’s the price of living in a diverse society — actual diversity. That’s the point I think is worth emphasizing, and it’s why I signed.

A public statement, “Freedom to Marry, Freedom to Dissent: Why We Must Have Both” has been posted at Real Clear Politics, with a number of prominent signatories. The statement is premised on the following declaration:

“We support same-sex marriage; many of us have worked for it, in some cases for a large portion of our professional and personal lives. We affirm our unwavering commitment to civic and legal equality, including marriage equality. At the same time, we also affirm our unwavering commitment to the values of the open society and to vigorous public debate—the values that have brought us to the brink of victory.”

For me, this is the heart of the matter and our central disagreement with the self-appointed enforcers of orthodoxy:

“We should criticize opposing views, not punish or suppress them.”

It won’t convince the heresy hunters who believe you win when you silence your opponents by threatening their livelihood, but they’re a lost cause and an embarrassment to the enlightenment values of classical liberalism. For those who support gay legal equality but might be misled by “progressives” into thinking that shouting down your opposition wins the debate, we hope it will provide some intellectual clarity.

More. Rick Sincere links to a variety of blog posts referencing the statement.

And this, from Conor Friedersdorf.

I don’t always agree with Andrew Sullivan, but he is spot on in calling out a truly repugnant “history” of the gay marriage fight that serves, in Sullivan’s words, as a “cringe-inducing hagiography” of Chad Griffin, president of the Human Rights Campaign, the Democratic Party’s LGBT fundraising auxillary.

The book Forcing the Spring: Inside the Fight for Marriage Equality,” by Times reporter Jo Becker, was excerpted in the paper’s Sunday Magazine. As Sullivan noted in a series of posts, the book ignores the groundbreaking work on marriage equality by himself, Bruce Bawer, Evan Wolfson, and others (some conservatives, some progressive Democrats), in order to portray HRC as the vanguard force for historical change, under Griffin’s wise leadership. For instance, Sullivan writes:

For Becker, until the still-obscure Griffin came on the scene, the movement for marriage equality was a cause “that for years had largely languished in obscurity.” I really don’t know how to address that statement, because it is so wrong, so myopic and so ignorant it beggars belief that a respectable journalist could actually put it in print.

He observes:

If you woke up after a long sleep in 2009, and suffer from total memory loss, it makes some sort of sense. But if you know anything about the subject or any history before 2008 or know anyone in the movement before then or even now, this book is as absurd as it is stupid. And no lies and spin from Becker about what she actually wrote will change that.

And he cites, among others also taking issue with Becker and the Times, an analysis by Hank Plante regarding:

…how Becker’s attack on everyone in the movement apart from Griffin is just an extension of Griffin’s own contempt for the two decades of staggering progress that made his unseemly credit-grabbing possible.

The point is not just extremely bad political journalism (which I expect from the New York Times these days), but the utter self-serving mendacity of HRC (ok, I expect that as well).

On a happier note, a further sign of changing times—and the sort of development that’s becoming much more common, often despite (rather than because of) party hacks like Chad Griffin: Lawyer who defended Calif. gay marriage ban plans daughter’s gay wedding. Let’s celebrate those who truly have brought about the extraordinary advances for marriage equality.

More. The Washington Blade reports on the controversy.

J. Bryan Lowder continues his very strong defense of the attacks on Mozilla’s Brendan Eich, and anyone else who publicly supports laws that exclude same-sex couples from marriage.  Lowder seems to accept that he will now be known as the person who wishes equality opponents would “simply shut up.”

He embarrassingly overargues his case, complaining that the trauma of having grown up homosexual in an anti-gay world justifies a little gloating about our still-emerging victory in the culture.  Even equality supporters like Conor Friedersdorf whose treachery is a willingness to tolerate anti-equality advocates  misunderstand the agony we endure, since we have been “…sexually and emotionally traumatized since childhood.”

But there is much more at stake here than the melodramatic ravings same-sex marriage seems to inspire on both sides.

I think Lowder would agree that it is bad when government uses its power to take sides in a public debate.  It is abhorrent that Russia and Uganda have declared speech in favor of homosexual liberty off-limits.  There is no proud history of government efforts to police the speech of citizens.  That is true whether you think the government is enforcing the right side of the debate or not.

Religions, too, have sinned savagely throughout history in prosecuting heresy.

The question today is whether majorities can fare any better in crusading against propaganda we do not like, or civil heresy.  I think not.

The First Amendment’s protection of speech applies to the government, but its wisdom goes deeper. In any culture where individual liberty is central, opinion cannot be chaperoned.  People will believe what they believe.

Should we and our allies try to do to our opponents what they so successfully did to us for centuries: silence them?  Punish them? I think the logic of the First Amendment counsels against that.

An opinion suppressed is an opinion inflamed.  As a matter of politics, it is best to allow the expression of opinions, disagreeable and even terrible ones.  As long as people do not act on their worst opinions (something government can appropriately respond to), the airing of grievances is healthy.

Which is not to say it is comfortable.  Lowder is offended that, despite majority support for our equality, the lives of lesbians and gay men are still subject to extraordinary, invasive scrutiny; and that is offensive.  But more offensive is the self-righteousness that would not just argue against offensiveness, but punish its expression.  It is unfortunate that we have to live in the same country and community with discourteous and boorish people, but the alternative of banishment or enforced correction of their error is worse.

A trend is being recognized here:

National Journal, Republicans Are Openly Softening Their Tone on Same-Sex Marriage: “Social conservatives may not have raised the white flag on same-sex marriage yet, but their party’s leaders are in search of something of a compromise.”

BuzzFeed: No Sign Of Social Issues As Conservative Leaders Preach To Activists: “the prospective [GOP presidential] candidates’ reluctance to talk about these issues at an event that had been explicitly marketed as a 2016 preview does not bode well for the religious right’s agenda.”

The GOP leadership and presidential front-runners know that a generational shift within the party is coming—61% of young Republicans support same-sex marriage—and what that means.

More. From the Washington Post, continuing the theme: Republicans outside of Washington are dropping their opposition to gay marriage. Will the national party follow along?

Catching up, this was an interesting Washington Post column by Anne Applebaum. For Putin’s Russia and its anti-Western allies, gays have replaced Jews as the hated avatars of modernity, openness and tolerance. We see this worldwide, in places where, as Applebaum writes:

xenophobic, anti-European and, nowadays, anti-homosexual rhetoric [sometimes] becomes an argument in favor of local oligarchs or economic clans and against foreign investment or rules that would create an even playing field. It always focuses on Western decadence, economic or sexual, and welcomes any sign of Western hesitancy.

Achieving legal equality for gay people in such places will be a long, arduous struggle. Timidity with regard to defending enlightenment-rooted values—and open debate in particular—as was exhibited last week by Brandeis University and is, sadly, part of a much broader trend, makes those who hate us bolder.

The U.S. Supreme Court won’t be hearing the first case to reach it dealing with expressive freedom for service providers who don’t wish to be forced by the state (and LGBT heresy-hunting zealots) to create messages celebrating same-sex marriage. With a number of other such cases heading through the judicial system, it’s unclear how much can be concluded from the failure to grant cert in the Elane Photography case. But it’s a sad day for liberty, and for America, when the situation is as follows:

[T]he Gay and Lesbian Services Organization filed a complaint in 2012 with the local human-rights commission against the outfitting company Hands On Originals in Lexington, Ky., after its owner refused to print shirts for a gay-pride festival. The owner, Blaine Adamson, said he offered to refer the group to another T-shirt maker that would make the shirts for the same price.

Mr. Adamson, whose case is still pending, said he has also refused to print shirts for other events unrelated to gay rights that he believes conflict with his Christian beliefs.

“It’s not that we have a sign on the front door that says ‘no gays allowed.’ We’ll work with anybody,” said Mr. Adamson in a video on the ADF website. “But if there’s a specific message that conflicts with my convictions, then I can’t promote that.”

This won’t shame the zealots, for they have no shame, just hatred and smug self-righteousness used to cloak their totalitarian mindset.

Maybe the closet isn’t such a bad thing — if only you can get the right people into one.

That is the premise of the crusade against Brendan Eich.  Maybe our heterosexual allies who have been so vehement on our behalf can be forgiven for not appreciating the natural consequences of this movement; but if gays can’t oppose what is happening, there is no meaningful definition of “irony” left.

Californians in particular should take heed.  Andrew Sullivan helpfully cites our Labor Code section 1102, which explicitly prohibits discriminating against employees based on their political beliefs and actions.  But that’s just the start.

That statute, along with its companion section 1101 served as the foundation for launching the public part of the gay rights movement in this state.  In a 1979 case called Gay Law Students Ass’n v. PT&T, our Supreme Court ruled for the first time that lesbians and gay men could not be discriminated against by employers based on their public activities in support of gay equality.  The case did not say they can’t be discriminated against for being homosexual — it was strictly based on public political actions.

Here is the court’s reasoning:

A principal barrier to homosexual equality is the common feeling that homosexuality is an affliction which the homosexual worker must conceal from his employer and his fellow workers. Consequently one important aspect of the struggle for equal rights is to induce homosexual individuals to “come out of the closet,” acknowledge their sexual preferences, and to associate with others in working for equal rights.

In light of this factor in the movement for homosexual rights, the allegations of plaintiffs’ complaint assume a special significance. Plaintiffs allege that PT&T discriminates against “manifest” homosexuals and against persons who make “an issue of their homosexuality.” The complaint asserts also that PT&T will not hire anyone referred to them by plaintiff Society for Individual Rights, an organization active in promoting the rights of homosexuals to equal employment opportunities. These allegations can reasonably be construed as charging that PT&T discriminates in particular against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations. So construed, the allegations charge that PT&T has adopted a “policy … tending to control or direct the political activities or affiliations of employees” in violation of section 1101, and has “attempt[ed] to coerce or influence … employees … to … refrain from adopting [a] particular course or line of political … activity” in violation of section 1102.

Eich, of course, is not an employee, so this doesn’t apply to him in particular.  But it is very clear that if he had not publicly supported Prop. 8 so many years ago, he would be CEO of Mozilla today.  And he is not alone in his beliefs.

That’s what the closet feels like, to those of us who have been there.

I don’t think there is much chance of marriage equality failing in California any more due to Eich’s — or anyone else’s — urging.  It’s now even possible to imagine some form of relationship recognition as a federal constitutional right.

But even if there were, trying to enforce silence on one side of a debate is a time-tested malevolence, which gays more than anyone should recognize.  Pretty much all of the civil arguments against equality have failed because they were given the space to be aired against the opposing arguments.  What is there to gain today, except some noxious exhilaration, by trying to silence or punish the true believers?

We had to be silent once.  That’s nothing to wish on anyone.