IGF CultureWatch

George Will’s recent column defending judicial activism on behalf of individual liberty doesn’t address gay legal equality, but the points he makes are relevant to the issue nevertheless. For instance, Will notes that “America’s defining value is not majority rule but individual liberty. Many judges, however, in practicing what conservatives have unwisely celebrated as ‘judicial restraint,’ have subordinated liberty to majority rule.”

Will is correct in also observing that “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.” Of course, the “judicial restraint” conservatives clamor for is intended to leave in place measures legislatively passed (or instituted via popular referenda) that dictate discrimination, often against gay people.

But judicial restraint is a two-edge sword, and a diminished judiciary also allows liberals to leave unimpaired the worst outrages of the regulatory state. Both left and right, it seems, would sacrifice individual liberty for unrestrained government that serves their particular ideological agenda.

New York Gov. Andrew Cuomo’s comments about “extreme conservatives” have provoked an intense response from conservatives who don’t view themselves as extreme. First, here’s what the governor said during an interview with public radio (as reported by the Daily News:

“Who are they?” Cuomo said about the Republicans. “Are they these extreme conservative, right to life, pro assault weapon, anti-gay? Is that who they are? Because if that’s who they are, and if they are the extreme conservatives, they have no place in the state of New York. Because that’s not who New Yorkers are. If they are moderate Republicans, like in the Senate right now, who control the Senate—moderate Republicans have a place in this state.

These comments have been attacked by those who are pro-life, anti-gun control and anti-gay-marriage, although the intensity of the criticism has been from pro-life and pro-gun-rights groups.

The problem I have is that there are many who are gay (and gay supportive) who happen not to support (at the very least) late-term abortion on demand at taxpayer expense, believe in the right to keep and bear arms and support marriage equality. By tying the three issues into one bundle, Cuomo and Democratic Party activists advance their coalition progressivism but makes it harder to reach out to conservatives who might be open to libertarian arguments on marriage.

Their concern, of course, isn’t with advancing support for marriage equality among conservatives, but it should be ours.

Via Deadline Hollywood:

Did the controversy surrounding Duck Dynasty star Phil Robertson take a toll on the show’s appeal? A&E’s flagship reality series clocked 8.5 million viewers Wednesday night [down from the show’s Season 4 debut, which drew nearly 12 million viewers], snapping a streak of ratings records and posting its first season-to-season drop. Among adults 18-49, the premiere averaged 4.2 million viewers, down 33%.

That’s a bucket of cold water thrown in the Robertson family’s faces.

The show can no longer be seen as an innocent guilty pleasure, as a number of TV columnists seem to have noted, including here: “[W]here watching Duck Dynasty was once a form of escapism, now it can’t help feeling like taking sides.”

That, to a large extent, explains the drop off.

More. Variety reports, “‘Duck Dynasty’ Falls to Lowest Ratings Since 2012.”

Changing times. Utah is now evenly split on marriage equality in a poll taken following a district court decision overturning Utah’s anti-gay-marriage amendment. That ruling was later stayed by the U.S. Supreme Court pending the state’s appeal.

Seeing 1,300 same-sex couples apply for marriage licenses likely gave momentum to shifting attitudes.

Jimmy LaSalvia, co-founder of the conservative gay group GOProud, has been getting a lot of love in the liberal media after renouncing the Republican Party and declaring himself an independent, saying, “I am every bit as conservative as I’ve always been, but I just can’t bring myself to carry the Republican label any longer.”

LaSalvia is certainly entitled to the political affiliation of his choosing, and there are plenty of anti-gay bigots in the GOP, including Republican National Committeeman Dave Agema.

Still, I find his renunciation disturbing. For one thing, he and GOProud’s other co-founder, Christopher Barron, have long been critical of the Log Cabin Republicans for insufficient conservative purity—that was the reason they originally founded their alternative group. In particular, they cited Log Cabin’s refusal to endorse George W. Bush’s reelection in 2004 (after Bush gave his support to the anti-gay federal marriage amendment).

Now, LaSalvia has appeared on MSNBC where he was welcomed like a prodigal son. He used his time to castigate the Republican Party over its social issues, but this is a network that spends 24/7 attacking Republicans on all their issues, including economic conservatism. Just what point was LaSalvia trying to make, preaching anti-Republicanism to left-liberals on a station that most non-liberals view as a Democratic Party mouthpiece?

And then there are LaSalvia’s remarks to The Advocate, in which he rebukes GOP party chairman Reince Priebus over his “tolerance of bigotry”:

“Reince Priebus, he talks a good game,” LaSalvia says, “but he doesn’t have the balls to do what it takes to actually change things.”

Is that the way to reach out to Republicans? Priebus isn’t all we would hope, but he was behind a report that called on the GOP to be more welcoming of gays, for which he took much heat from social conservatives, and stated “I don’t believe we need to act like Old Testament heretics” on gay issues. The party’s Dave Agemas view him as their enemy.

If the goal is, still, to work for change within the GOP, LaSalvia’s media appearances aren’t the way to do it. Republican social conservatives now will claim that GOProud was always what they said it was, an attempt to undermine the GOP on behalf of the liberal agenda.

GOProud accomplished something truly valuable when it fought for inclusion of a gay conservative group at CPAC, the annual conservative confab. It won that right, but lost it after a boycott instigated by the Heritage Foundation and other social conservatives. Too bad GOProud isn’t going to be able to continue that fight, which I believe would have been victorious. But wins of this sort don’t come easy, and they don’t come fast.

I’m glad Log Cabin is still willing to carry out the hard, long slog to create a Republican Party that is as welcoming and supportive of gay people as the British Conservative Party (recall that Prime Minister David Cameron declared, “I support gay marriage because I am a Conservative”).

There were and still are anti-gay bigots in the British Conservative Party, and it took a long struggle to achieve the victories that have been won there. In the U.S. Republican Party, that fight will now be made without Jimmy LaSalvia.

More. From the Detroit News: Former Republican National Committeewoman and Michigan state party chair Betsy DeVos:

joins a growing number of traditional Republicans dismayed that the party is being jerked to the extreme by a small-but-noisy element obsessed with divisive issues. What’s driving [DeVos] to speak up are the serial outbursts of Dave Agema, who has drawn fire for his hateful rants against gays and Muslim Americans. …

“There is a fear, untested and unfounded, that standing up to a small minority in the party will have a tremendous backlash,” she says. “Instead, I believe they are going to continue to drive more and more people away from our party and our viewpoints.”

More power to her, and for fighting the good fight within the GOP.

Two articles in the New York Times—a recent news story, Twinned Cities Now Following Different Paths, and an earlier but similar opinion piece, Right vs. Left in the Midwest—look at the political divergence between neighboring states Wisconsin and Minnesota, both with “one party rule.”

While Wisconsin “elected Republicans to majorities in the Legislature and selected a bold and vigorous Republican governor, Scott Walker. Minnesotans elected one of the most progressive candidates for governor in the country, Mark Dayton of the Democratic-Farmer-Labor Party.”

Among the results, “Minnesota raised taxes by $2.1 billion, the largest increase in recent state history. Democrats introduced the fourth highest income tax bracket in the country and targeted the top 1 percent of earners to pay 62 percent of the new taxes, according to the Department of Revenue.” Consequently, “According to a recent Minnesota Chamber of Commerce survey, a quarter of Minnesota companies—a 10-year high—describe the state’s business climate as worse than elsewhere.”

But Minnesota also began recognizing same-sex marriage.

Wisconsin, on the other hand, has held the line on taxes and played hardball with government workers unions fighting to protect outsized pay and benefits packages paid by taxpayers who, overall, have considerably lower pay (for comparable positions) and less rich benefits. But Gov. Walker and his GOP are firmly against marriage equality.

Business owners in Duluth, Minn., lament they are not across the river in Superior, Wis. But public school teachers in Superior wish they were working in Duluth. And a gay couple told the reporter they were planning on moving from Superior to Duluth, where they can be married.

As the news story points out, “In Minnesota, a coalition of wealthy in-state donors joined with national labor unions and gay-rights groups to smother the state’s divided Republican Party with a blitz of advertising and grass-roots organizing, handing Minnesota’s Legislature to Democrats, who also held the governor’s office.”

Yet another recent NYT article also discusses the impact of out-of-state gay political donors on shifting states into the Democratic column:

Republican majorities [in Minnesota] had sought to enact a wave of conservative or pro-business policies, battling with the new Democratic governor, Mark Dayton, over tax cuts, education spending and a measure to rein in unions. … Minnesota already had a law on the books banning same-sex marriage. But over Mr. Dayton’s objections, Republican lawmakers had put a question on the November ballot asking voters to enshrine that ban in the State Constitution, making it less vulnerable to repeal.

Other deep-pocketed gay-rights groups, both in Minnesota and around the country, were already mobilizing to defeat the marriage initiative. The Gill group had a complementary goal: helping Democrats win back the Legislature, so that Republicans would not get a second chance.

And they succeeded, turning Minnesota into a high-tax state subservient to government workers unions, but with marriage equality.

One might wonder why we can’t rein in excessive government spending, keep business and individual taxes moderate and also recognize same-sex marriage? The answer is because party alliances are built on blocs, and gays + government workers are Democratic blocs while anti-gay conservatives + pro-business interests are GOP blocs.

Some of us, of course, would like to rearrange the blocs, as challenging as that might be.

Rick Esenberg, head of the Wisconsin Institute for Law and Liberty, offers personal thoughts on not demonizing one’s opponents. For instance:

If you think that your political opponent is evil, you are probably wrong. Most liberals are not fanatical communists or amoral libertines. Most conservatives are not heartless and greedy or censorious prudes. People differ in the priority that they place on often competing, but commonly shared, values—say liberty v. equality—and in their judgments on the way that the world works and what must be done to serve those values. Beware of responding to a cartoon that you have created, as opposed to real people and the arguments that they make.

Are they listening at MSNBC and Fox, Media Matters and the Family Research Council? Not on your life. To be fair, it’s hard when you strongly disagree with the other side’s views to keep the focus on policy arguments rather than disparaging the person, but it’s good to remember we ought to try.

Similarly, David Lampo on “the seemingly innate tendency for some people to react in completely opposite ways based on the party affiliation of the person involved.”

Also, I didn’t want to do another whole post on it, but let’s take note of Liz Cheney’s withdrawal from the Wyoming senate race. The quarrel with her lesbian sister Mary and Mary’ wife, Heather Poe, over Liz’s opposition to same-sex marriage is a harbinger of what more GOP candidates are going to be running into. Alas, the comments posted on the Washington Post article linked to above, and at other media sites reporting this story, are mostly far from civil.

James Kirchick breaks with political correctness and observes:

Two weeks ago, the Ugandan parliament passed a long-debated bill imposing lifetime sentences for gay sex acts, as well as harsh penalties for those who “promote” homosexuality. The latter clause is similar to the notorious law passed unanimously by the Russian Duma in June, which bans “propaganda of non-traditional sexual relationships.” But perhaps the most surprising development occurred in the world’s largest democracy, India, where that country’s Supreme Court overturned an earlier ruling striking down a ban on sodomy as unconstitutional. …

An irony in the whole debate over gay rights in the non-Western world is that anti-gay attitudes are now embraced by self-proclaimed “anti-imperialists” and “anti-colonialists” to differentiate themselves from louche, permissive, depraved Western societies. Whereas the British Empire may have once exported Victorian values a century and a half ago, today, it is the major force for progressive change throughout the Commonwealth—alongside, of course, local LGBT activists fighting their governments’ policies and societies’ ignorance.

Blaming British imperialism is conducive with a progressive anti-Western outlook that is aghast if you suggest that responsibility for reflexive hatefulness lies with many non-Western societies themselves.

More. Also, don’t miss Kirchick’s latest piece in Foreign Policy, “Why Putin’s Defense of ‘Traditional Values’ Is really a War on Freedom“:

Rather than highlight the anti-gay nature of the law, activists in the West would do far better to criticize it first and foremost as a violation of freedom of expression. In this way, they can appeal to the vast majority of Russian citizens who, as polls make clear, are not nearly as approving of homosexuality as Westerners. …

The Kremlin’s anti-gay assault is, in essence, an assault on the open society, and it is on those terms that it must be opposed.

And of course, lest we forget:

Yet there exists, particularly in America, a large number of conservatives extremely wary of Russia in general and Putin in particular. To their credit, they were suspicious of Putin long before the world’s gay activists joined the bandwagon, raising skepticism about the administration’s foolish and failed “reset” policy when many liberals were claiming that America needed to “repair” its relationship with Moscow (as if such a thing could ever be done, on morally acceptable terms, with Putin still in power).

The propaganda law offers one of those rare, bipartisan political opportunities where left and right can come together. Presenting the law as part and parcel of Putin’s broad crackdown on Russian civil society will expand the coalition of voices speaking out against it.

Of all the critiques that might be leveled against the Libertarian Party (and, by extension, libertarians in general, although the two are most certainly not the same), a recent posting at left-leaning Slate denigrating the LP’s support for gay equality is one of the weakest. As Brian Doherty points out in his response over at Reason.com:

Slate‘s piece combines confused thinking with near utter ignorance on its topic. However, it will, if read quickly and carelessly by equally ignorant readers, help make certain people think less of libertarianism, and that’s all that matters.

More. There is a wide range of opinion that could be called libertarian, and as commenter acer123 points out, some prominent libertarians are supportive of judicial action to ensure marriage equality. For instance, Walter Olson summarizes the libertarian Cato Institute’s brief before the Supreme Court in the Prop.8/DOMA case here:

In its active amicus program Cato has long taken a broad view of Equal Protection Clause protections, and in this case joined with the Constitutional Accountability Center to file briefs in Perry and Windsor urging that marriage be made available without distinction of sex on Equal Protection grounds.

Other prominent libertarians, however, hold a “it should just be privatized” approach to marriage that many find unrealistic, at least for the near term.

Glenn Beck, a bête noire of the progressive left, has what could be termed a conservative-libertarian bent. Take, for instance, his live/let live perspective on same-sex marriage. When previously asked by Fox’s Bill O’Reilly whether gay marriage would harm the country, Beck replied: “I believe that Thomas Jefferson said: ‘If it neither breaks my leg nor picks my pocket what difference is it to me?’”

Also, as commenter Lori Heine takes note of, Beck recently said he would stand with GLAAD against Russia’s anti-gay laws:

Do you know what happened last week in Russia? One of their biggest stars on television said that homosexuals should be put into the ovens alive. … I said on the air this week, I will stand with GLAAD. I will stand with anybody who will stand up and say that’s crazy. That’s dangerous. That’s hetero-fascism. That’s what that is. And we’re talking about Duck Dynasty. Really? Really?

Really.

Furthermore. Stephen Richer posts a response to the Slate piece at The Daily Caller.

A federal district judge in Utah opened the door for marriage equality in the Mormon homeland. His decision could be stayed next week as Utah’s attorney general announced the state will appeal, but for now marriage licenses were being issued. [Update: immediate stay denied by the 10th Circuit.]

As Reason.com reports (I’ve inserted the case they meant to reference):

Some may be amused to note that [Judge Robert J. Shelby] actually quotes Justice Antonin Scalia’s warning from his dissent in [Windsor v. United States, which overturned the Defense of Marriage Act] that the majority opinion opened to door for this very ruling. He says that Scalia was absolutely correct.

From Judge Shelby’s opinion:

Honorable Antonin Scalia recognizes that this result was the legal outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take a state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion… As I have said, the real rationale of today’s opinion…is that DOMA is motivated by “bare…desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

…The court agrees with Justice Scalia ‘s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

Should this case be joined with those that are heading toward the U.S. Supreme Court, it will be fun to see Scalia dance around his words.

Utah is the 9th state in 2013 to recognize marriage equality. All together, 18 states—CA, CT, DE, HI, IA, IL, ME, MD, MA, MN, NH, NJ, NM, NY, RI, VT, UT, and WA—plus Washington, D.C. now have freedom to marry for same-sex couples.

Update. Same-sex marriage in Utah has now been stayed by the U.S. Supreme Court until the 10th Circuit Court of Appeals hears and rules on the state’s appeal. Eventually, this one may end up being adjudicated in full before the Supreme Court.