IGF CultureWatch

On October 10, 1972, the U.S. Supreme Court issued its first formal thinking on whether same-sex marriage can be prohibited under the constitution.  Two Minnesota students applied for a marriage license in Minneapolis and were denied, and the state supreme court upheld the state’s law.  The couple asked the U.S. Supreme Court for review, and the court waved them away.  Its reasoning in Baker v. Nelson was stated in a single sentence: “The appeal is dismissed for want of a substantial federal question.”

Forty-two years on, courts are deciding that, not only is there a substantial federal question, but that there are several.  Whether it is equal protection for same-sex couples, or a fundamental right to marry that gays, too, can claim, or even discrimination based on gender, courts are clear that there is a question under the constitution about how the law treats the relationships of same-sex couples.  Twelve federal court decisions in the last year alone have addressed this question, and all twelve have ruled that discriminatory marriage laws violate the constitution.

Baker‘s rebuff of an entirely respectable legal theory is still on the books.  Like the court’s casual insult in Bowers v. Hardwick that a constitutional claim to protection against discriminatory criminal laws was “at best, facetious,” the court articulates the prejudices of its time if those prejudices are still common enough to be unrecognizable as belittlement.

That facetious claim later became the law in Lawrence v. Texas, and the substantial federal question the Baker court could not see is now pretty obvious to anyone.  Which is not to say that everyone agrees on what the constitutional answer should be.  But progress, like prejudice, can be hidden in plain sight.  If you realize that a little over forty years ago the highest court in the land could not imagine that gays had a plausible reason to complain about laws that prohibited them from marrying, you can better understand the barriers that this movement has overcome.

 

And the streak continues, as a federal judge in Kentucky, recommended by Sen. Mitch McConnell and appointed by George H.W. Bush, rules the bluegrass state must recognize same-sex marriages. Let’s note it was Vaughn Walker, another federal judge appointed by George H.W. Bush [corrected], who struck down California’s Prop. 8.

Also in February, Nevada’s Republican governor, Brian Sandoval, and attorney general announced that the state would no longer defend its 2002 ban on same-sex marriage in federal court.

And, of course, Supreme Court Justice Anthony Kennedy, author of numerous pro-gay-equality rulings, including the high court’s decision overturning key portions of the Defense of Marriage Act, was a Reagan appointee. This is pointed out because the din of the “one party is all we need and it starts with a ‘D'” crowd is sometimes deafening.

Meanwhile, in another victory, an Obama-appointed federal judge struck down Virginia’s ban on same-sex marriage, in what conservative (and not always gay friendly) site Breitbart termed “an historic ruling with special resonance on Valentine’s Day. Except the history of the historic ruling isn’t exactly up to par: Judge Arenda Wright Allen claimed the Constitution declares that ‘all men are created equal,’ which is, instead, the first line of the Declaration of Independence.”

Given the importance of Virginia and its history (with Loving vs. Virginia leading to the overthrow of state bans on mixed-race marriages), a legally literate ruling from the old dominion state would have been even more welcome.

Update. Judge Allen’s decison has now been amended. I don’t agree this was just an editing error; the Declaration inspires us, but court rulings must be grounded in the law and, ultimately, the Constitution.

More. An optimistic analysis, via Slate, says “It’s Over.” We’ll see.

Furthermore. Back in 2010, David Boaz noted (paraphrasing a report in The Atlantic by Josh Green):

…the federal judge in Boston who struck down a significant portion of the Defense of Marriage Act, ruling that it denied gay and lesbian couples the federal benefits afforded to straight couples, was appointed to the bench by President Richard Nixon. And the chief judge of the Iowa Supreme Court who wrote the unanimous decision striking down that state’s marriage ban was appointed by Republican governor Terry Branstad, who was just renominated for governor by Iowa Republican voters.

We’d only need to support one party if the legislature and judiciary also drew only from one party. That might be the political ideal for some, but it certainly shouldn’t be ours.

The Wall Street Journal reports:

Carl DeMaio is one of three openly gay Republicans running for Congress this year, and he would be at least the third to serve in the House if he wins. But Mr. DeMaio on Thursday will take a step that none of them has, airing a campaign ad that features a shot of him with his same-sex partner.

The clips are brief: A shot of Mr. DeMaio holding hands with his partner, Johnathan Hale, as they march in a gay pride parade in 2012, followed by a clip of the San Diego candidate waving a rainbow flag that symbolizes the gay-rights movement.

The story goes on to note:

Mr. DeMaio, who presents himself as a “new generation Republican,” isn’t a long shot trying to make a splash. He is one of the party’s top challengers this year as it tries to unseat Democratic Rep. Scott Peters. Although other Republicans are running for the seat, Majority Leader Eric Cantor (R., Va.) has given Mr. DeMaio $10,000, and Majority Whip Kevin McCarthy (R., Calif.) contributed $5,000. Conservative Georgia Rep. Tom Price kicked in $1,000.

In addition to Mr. DeMaio, two other openly gay Republicans are trying to unseat incumbent Democrats in the House: Dan Innis in New Hampshire and Richard Tisei in Massachusetts.

It’s easy enough to focus on the troglodytes in the GOP, but to pretend that nothing has changed, or can change, is rank left-liberal partisanship. It’s what too many LGBT progressives hope the situation is—that would be the activists who opposed DeMaio’s run for San Diego mayor, which he then narrowly lost to progressive fav Bob Filner, who subsequently resigned after being exposed as a serial sexual harasser.

LGBT progressives also worked to defeat Richard Tisei in his previous run for Congress (another narrow loss by an openly gay Republican).

As I’ve said before, openly gay and gay-supportive Republicans are LGBT progressives’ worst nightmare.

More. James Kirchick reports:

Moreover, it’s not just social conservatives standing in the way of the gay Republican ascendance, but the progressive left as well. “If anything, the blowback has come from liberal Democrats,” DeMaio says when asked about how his sexuality has impacted his political career. “They are afraid this message could take hold and could allow Republicans to be more effective in advancing fiscal and economic reforms that they oppose.”

DeMaio and Hale were booed at the very 2012 gay pride parade featured in his campaign video—not by anti-gay protesters, but by attendees. That same year, a group deceptively named “Conservatives for Gay Rights Supporting Carl DeMaio for Mayor 2012”—paid for “push poll” robocalls in which DeMaio’s homosexuality was put front and center. The group also paid for pamphlets featuring pictures of DeMaio hugging another man and standing alongside a drag queen, stating, “We conservatives know that liberty means that someone can pick a partner of their choice. We commend Carl on his conservative policies and exercising his liberties.”

Not until after the election—ultimately won by former Democratic Congressman Bob Filner, who resigned last August facing multiple accusations of sexual harassment—was it revealed that Democratic supporters of Filner had funded the shadowy group.

Professional sports are the last bastions of gay social exclusion in the U.S., at least in terms of popular culture. There are currently no openly gay professional athletes in the four major commercial sports (baseball, football, basketball and hockey). However, that could be changing. As the Washington Post reports:

On Sunday, University of Missouri defensive end Michael Sam was rated as the 90th-best prospect in May’s National Football League draft. The next morning, the 24-year-old all-American had slipped to No. 160. Only one thing had changed: On Sunday night, Sam announced he is gay. …

Patrick Crayton, a veteran wide receiver who spent the 2013 preseason with the New Orleans Saints, tweeted Sunday night that Sam should “stay in the closet.” Jonathan Vilma, a Saints linebacker, said during an NFL Network interview last week that he had concerns about showering and dressing with a gay teammate nearby.

As another WaPo piece put it, Sam “might be arrested in Vladimir Putin’s Russia just for stepping on a scale.”

The magnitude of social change toward gay people in the developed Western world (Europe, America/Canada, Australia/New Zealand), evidenced by the acceptance of marriage equality, highlights professional sports as one of the last holdouts (along, of course, with conservative religious denominations). But football, like the Boy Scouts, is or ought to be embracing of all, since it’s viewed as part of essential Americana. Challenging and overcoming that remaining bastion is now just a matter of time.

More. Frank Bruni writes: “A news flash for every straight man out there: You’ve been naked in front of a gay man.”

Furthermore. This is inspiring.

Plus, an all-too-true comparison via Instapundit.

I didn’t feel compelled to watch the opening ceremonies of the winter Olympics, and I find that I’ve avoided the competitions as well. I know that Putin’s Russia, while oppressive, corrupt and authoritarian, isn’t the only, or worst, anti-gay regime. Our ally India gives Russia a run for the money, at least on paper if not in practice, in terms of outlawing homosexuality. Gay people face a death sentence in Iran and elsewhere in the Islamic world. In Nigeria, Uganda and other benighted places, things are little if any better.

Still, Russia rankles. Maybe it’s that Putin so obviously sees the games as a propaganda coup, as Hitler did the ’36 Olympics in Berlin. And while I didn’t support a boycott of Sochi, my gut tells me that these games are morally tainted. To cheer and applaud along with a beaming Putin turns my stomach.

Already, we’ve seen in connection with these games the arrest of Russian gay rights advocates and the stifling of anti-Putin protests (an everyday occurrence), with the IOC’s acquiescence, while Russian authorities allow a pro-Putin, anti-gay demonstration. In a more petty vein, there’s the Russians’ denial of access to at least one pro-gay Olympian’s website, reminding us of how “gay propaganda” is strictly forbidden.

I don’t condemn anyone who feels the fraternal spirit of the games themselves supersedes the sins of the host. But for myself, I can’t get over it.

More. Olympics delivering for Putin.

Much of the basis for arguing against allowing small business owners a ‘right of conscience’ religious exemption from providing services to same-sex weddings is an assumed equivalence between sexual orientation and race.

Given the long legacy of slavery and Jim Crow, federally enforced nondiscrimination laws were necessary to allow African Americans access to commercial services available to whites, not to mention voting rights, employment, public accommodations, etc. Advocates of forcing religiously conservative bakers to produce congratulatory wedding cakes with two grooms or two brides atop suggest that the same thing is true of gay people. It isn’t.

Most bakers, florists, etc. would provide these services; allowing a small number to opt out based on religious conscience shows respect for individual liberty that in the long run will serve gay people much better than using the law to force expressive behavior that celebrates same-sex weddings.

Some defending such a draconian application of anti-discrimination law put forth a Manichaean view of good progressives vs. evil traditionalists. That self-congratulatory perspective is blind to the shadow side of leftism/progressivism and its tendency toward collectivist authoritarianism when given a free rein. There’s a striking similarity between leftwing and rightwing inquisitors and heresy hunters.

As Matt Barnum writes at The Purple Elephant blog:

I think we should be uncomfortable making a direct comparison between discrimination against gays and discrimination against blacks. Both have been awful, but only one involved slavery, only one involved de facto and de jure segregation. …

The root of this awful argument [against religious exemptions for service providers who oppose gay marriage] is the notion that race and sexuality are exactly the same—have the same moral status, the same cultural history, and warrant the same legal response. There are certainly overlaps, and gays have certainly been treated very poorly historically. But sexuality is not race, and it shouldn’t be treated as such.

Peggy Noonan discusses the totalism beneath the progressive mindset. She’s talking about Obamacare’s contraception-abortifacient mandate on employers, but she could as well be addressing the demand by certain gay activists for no religious exception that would allow small service providers not to accept assignments that require them to provide expressive services for same-sex weddings.

Writes Noonan:

Meanwhile, back in America, the Little Sisters of the Poor were preparing their legal briefs. The Roman Catholic order of nuns first came to America in 1868 and were welcomed in every city they entered. They now run about 30 homes for the needy across the country. They have, quite cruelly, been told they must comply with the ObamaCare mandate that all insurance coverage include contraceptives, sterilization procedures, morning-after pills. If they don’t—and of course they can’t, being Catholic, and nuns—they will face ruinous fines. The Supreme Court kindly granted them a temporary stay, but their case soon goes to court. … And so they fight, in a suit along with almost 500 Catholic nonprofit groups.

Everyone who says that would never have happened in the past is correct. It never, ever would have under normal American political leadership, Republican or Democratic. No one would’ve defied religious liberty like this. The president has taken to saying he isn’t ideological but this mandate—his mandate—is purely ideological.

It also is a violation of traditional civic courtesy, sympathy and spaciousness. The state doesn’t tell serious religious groups to do it their way or they’ll be ruined. You don’t make the Little Sisters bow down to you. This is the great political failure of progressivism: They always go too far. They always try to rub your face in it.

More. Now available in paperback is a new, expanded edition of Jonathan Rauch’s classic Kindly Inquisitors. From the blurb:

the answer to bias and prejudice, Rauch argues, is pluralism—not purism. Rather than attempting to legislate bias and prejudice out of existence or to drive them underground, we must pit them against one another to foster a more vigorous and fruitful discussion. It is this process that has been responsible for the growing acceptance of the moral acceptability of homosexuality over the last twenty years.

A follow-up by Rauch also addresses progressive speech codes (but by extension, I’d argue, the progressive mindset that would force a florist to decorate gay weddings, and a baker to design congratulatory cakes with two grooms or two brides atop). Writes Rauch:

Something else I often find called on to emphasize to young people, at a time when college speech codes are usually justified as protecting minority rights, is that turnabout is not fair play. The problem is not that the bad guys were in charge of the speech rules in 1954, whereas the good guys are in charge now. The problem is that majorities, politicians and bureaucrats are very unreliable judges of minorities’ interests.

The mass marriage ceremony at the Grammys was both kind of inspiring and, sorry, kind of creepy, in that mass weddings kind of way, despite/because of the role of high priestesses Madonna and Queen Latifah as officiants. But it does reinforce the astounding change in public acceptance of marriage equality. Yes, socially conservative evangelicals are not the Grammy audience, but young people give the event huge ratings. And they are the future.

Alas, many Republicans will keep losing until they get that trying to keep marriage restricted to heterosexuals is driving away more voters than the diehard religious right bloc they fantasize will put them over the top. The latest evidence: GOP operative Ed Gillespie’s run for the Virginia Senate seat held by moderate Democrat Mark Warner. Gillespie told the Washington Times:

My faith also teaches me that marriage is between one man and one woman. In fact in the Catholic church it’s not just a teaching, it’s a holy sacrament just like communion. I believe that as well. I believe marriage is between one man and one woman and I believe that people who don’t share that view or share my faith, that that doesn’t make them anti-Catholic or religious bigots. And I think people who do share my view, that doesn’t make us anti-gay either.

Republicans can’t get away with this kind of “I’m not a bigot but marriage is a sacrament” malarkey anymore. Your sacrament isn’t enshrined in the Constitution, an ever-growing number of Americans recognize, while equality for all under the law is. The popular Warner needn’t feel threatened.

Robert Turner, executive director of the D.C. Republican Party and former president of the D.C. chapter of Log Cabin Republicans, has it right about prominent LGBT organizations in his Washington Blade op-ed:

When you listen to some national gay organizations, they speak of the evils of Republicans. They often imply ALL Republicans. Either they are not mindful that we have a growing number of Republican allies in the House and Senate and around the country who support us on many of our core issues, or they are simply party hacks. It’s OK to be a party hack. I am. Just don’t masquerade as a non-partisan national LGBT organization if that’s what you really are — an operative of the Democratic Party.

It might be better if the Human Rights Campaign identified itself for what it’s become, a fundraising arm of the Democratic Party, rather than pretending to speak for all gay people when it lobbies for gay rights and supports progressive causes.

To make a point, Alan Sears, head of the conservative Alliance Defending Freedom (ADF), which is leading the legal battle on behalf of photographers, florists, cake decorators and others sued for refusing to create products for same-sex weddings, found a Southern California photographer who refused to take a Christmas card photo of his family after he identified his affiliation. The photographer explained in an email, “I oppose the goals and objectives of your organization and have no interest in working on its behalf.”

And that was the point Sears wanted to make, as the Washington Times reports:

“We’re talking about human dignity. It violates someone’s dignity to require them to create images that violate their core beliefs,” Mr. Sears said. “I think I’m a pretty nice guy, and my family are kind folks, but to require this woman to portray me in a loving, family-centered way that is contrary to her views and her conscience, I think it would be an act of violence against her dignity.”

The article also notes:

Those filing friend-of-the-court briefs in favor of the ADF’s position include some high-profile supporters of gay marriage, including Ilya Shapiro, Cato Institute legal counsel; Eugene Volokh, University of California at Los Angeles School of Law professor; and Dale Carpenter, professor at the University of Minnesota Law School. …

“The vast majority of same-sex couples do not want the service providers who disagree with participating at their celebrations, but there is a small number of highly political activists who will do so to make a point,” said Mr. Carpenter. “And they will create conflicts that do not need to exist.”

For those who might not know, both Dale and the Cato Institute have a substantial history fighting for gay legal equality, particularly in overturning sodomy laws (Cato’s brief was cited by Justice Kennedy) and marriage equality.