IGF CultureWatch

The Human Rights Campaign is declaring victory in its campaign to intimidate Washington, DC law firm King & Spalding into withdrawing from its agreement to represent the House GOP leadership in defending the Defense of Marriage Act (DOMA). King & Spalding partner Paul Clement, the former Solicitor General under George W. Bush, resigned from the firm in order to continue the defense of DOMA he agreed to undertake.

LGBT activists cheered; others warned of a New McCarthyism.

While I think there is great merit in the argument that people and organizations deserve the best representation they can procure even when (or especially when) they are unpopular, I’m not quite sure a law that the executive branch won’t defend is entitled to the same rights.

Nevertheless, there is something deeply disturbing about targeting not just the counsel of the opposition (King & Spalding) but also asking corporate clients to stop doing business with that firm (e.g., Coca Cola), as suggested in this report:

gay rights organizations including the Human Rights Campaign and the group Georgia Equality…planned an aggressive ad campaign, direct communication with the firm’s clients, and a diminution of its Corporate Equality Index ranking—the metric HRC uses to track corporate support for gay rights.

I believe the constitutional case against DOMA (section 3, non-federal recognition of state-authorized same-sex marriages) is sound and will eventually win the day. But strong-arming the opposition’s legal defense team and going after the firm’s clients is deeply disturbing.

Update: From Politico:

Attorney General Eric Holder is coming to the defense of former Solicitor General Paul Clement, after gay rights advocates criticized his decision to take on the defense of the Defense of Marriage Act in court. . . .

“In taking on the representation—representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best,” Holder said during a roundtable with reporters at the Justice Department. “That criticism, I think, was very misplaced.”

Also on the marriage front… The claim by social conservatives that U.S. District Judge Vaughn Walker’s ruling against California’s Proposition 8, which bans same-sex marriage, should be thrown out because Walker recently disclosed he is gay and in a relationship is deeply offensive. As the Wall Street Journal reports:

Erwin Chemerinsky, dean of the University of California, Irvine School of Law, said that no U.S. court had ever ruled that a judge’s personal identity was sufficient reason for disqualification. “I think it is offensive to say that a judge can’t hear this case because he is gay or lesbian,” he said. “By that reasoning, a black judge couldn’t have heard challenges to segregation law.”

It’s hard to react to the new “Don’t Say Gay” bill in Tennessee with the bemusement it deserves.  SB 49 would prohibit Tennessee teachers in grades K-8 from mentioning homosexuality in the classroom.  It’s natural to find this bill stupid, harmful to students who may be homosexual, bigoted, mean-spirited, misdirected, ill-informed, dimwitted, irrational, shortsighted, irresponsible or just plain preposterous.

There are very few of us who would want elementary and middle-school children to have a sexual education imposed on them prematurely.  And if this were what the bill accomplished, it might be justified.

But that’s not what the bill does.  Instead, the legislation says, “No public elementary or middle school shall provide any instruction or material that discusses sexual orientation other than heterosexuality.”  It acknowledges the fundamental fact that sexual orientation is part of the human matrix, and allows instruction and school materials to include sexual orientation – how could it not?

But only if that sexual orientation is the state-approved one.  The bill provides that students in Tennessee can be explicitly exposed to the sexual orientation the state has adopted as its official policy – heterosexuality – and that they should be protected from any official hint that there is another sexual orientation the state does not endorse – homosexuality.

Unsurprisingly, California’s legislature has a somewhat different idea.  That state’s SB 48 would prohibit California school materials from “reflecting adversely” on lesbians and gay men, adding sexual orientation to an already established list of other factors such as race, gender and national origin.

The California bill may go too far in the opposite direction. Those of us who have worked long enough in the gay rights arena know that there are times when some of our own actions and leaders reflect pretty adversely on us.  It’s taken a long time for educators and policymakers to clean up the cleaned-up pseudo-history that used to be taught in our schools, and students are better for knowing that mistakes, flawed heroes, ideological zeal and terrible miscalculations are all part of the human story.  It would be a shame for us to back off from that candor.

But Tennessee’s SB 49 shows why California thinks it needs SB 48.  History, itself, has done its best to render lesbians and gay men invisible.  SB 49 only does explicitly what has always been implicit:  It makes the lie official.  SB 49 says that California won’t tolerate that lie any more.

I want to be bemused by Tennessee’s foolish notion, because I know that its children will inevitably gain awareness of the lively, active and open lesbians and gay men in their state and around the country and the world no matter what their state’s lawmakers wish.  Like the Chinese government, Tennessee’s deluded leaders want to control a truth that is ultimately indifferent to their autocratic mirage.

But these official lies do cause harm.  They reinforce the superiority of heterosexuality to homosexuality, and embolden the adolescent impulse to demean.  As an adult, I have the luxury and security to be bemused by the deranged grown-ups who have acquired the ability to misuse government.  But there will be children in Tennessee who won’t be so lucky, and will have to grow through the same lies that generations of us had to survive.  It’s easier to do that now, but it’s so unnecessary, and such a pigheaded use of the power of government.

The libertarian Moorfield Storey Blog has an interesting, if long, post on a point that some libertarians don’t seem to get about prejudice when they suggest that if no physical injury is inflicted, bigotry isn’t a big deal. (Note I said “some” libertarians; others feel prejudice is indeed something to vigilantly counter, just not through the blunt instrument of government.)

The Moorfield Storey blogger addresses a typical libertarian, whom he terms “Calvin:

For a libertarian Calvin, it is pretty simple and easy. He sees a minority upset by the use of bigoted words and he laughs it off with remarks about “sticks and stones” and how they don’t break your bones. Gay kids across America were subjected to those words and killed themselves when they couldn’t take it anymore. Not Calvin; he was unlikely to be targeted merely because of who he was.

I imagine the impetus for this post was basketball superstar Kobe Bryant being fined $100,000 by the NBA last week for calling a referee the “f” word (and then some). Graying rocker Ted Nugent, now a right-wing (not a libertarian) columnist in the Washington Times, penned a defense of Bryant that declared, “Mr. Bryant committed this egregious verbal foul because he used a word demeaning to homosexuals, the most protected class of people in America.”

As the Moorfield Storey Blog states:

What makes the situation worse for the libertarian Calvin, is there are conservative Calvins who sound just like him. The libertarian Calvin (LC) may not be bigoted against minorities, while the conservative Calvin (CC) may be. Unfortunately when they speak they speak the language…minorities listening to the LC can’t tell how he differs from the CC. Individuals victimized because of who they are, hear the same comments coming out of both groups. And thus the libertarian stereotype, that we are just conservatives, but “more so” lives on, perpetrated by our own actions.

Which is an unwelcome outcome that some of our fellow libertarians, in making the case for limited government, may want to ponder.

More. And then there are government actions that chill the blood of many libertarians, like this Canadian prosecution for insensitivity: “Lesbian Insult Gets Comic Fined.”

Added. Man Arrested in UK for Singing “Kung Fu Fighting”.

Still more. Not now, but someday? The Wall Street Journal reports:

Former New Mexico Gov. Gary Johnson…is jumping into the 2012 Republican presidential race, adding variety to what already promises to be a crowded field. The two-term governor, who left office nine years ago after proudly vetoing 750 pieces of legislation, promises to run a long-shot campaign heavy on libertarian themes of limited government and personal freedom. …

A Johnson campaign will differ sharply in content and tone from that of other Republican contenders. He opposes U.S. involvement in Iraq and Afghanistan, but favors work visas for the 11 million illegal workers now in the U.S. He supports gay marriage and abortion rights, while advocating a balanced budget and a sharp reduction in government regulation, taxes and spending.

I agree with Stephen Miller that’s it’s fine for HRC to go all nuclear about the House defending DOMA (or, as we’ve tried to clarify before on this site, Section 3 of DOMA, and only Section 3).  Fish gotta swim, gay rights groups gotta complain about people who disagree with them.  It’s the order of nature.

I’m not sure what HRC would have had Speaker Boehner do, though.  If the Justice Department won’t defend the law, and at least one house of Congress still thinks it’s worth defending, why shouldn’t they exercise the political prerogative of the majority and pick up this sad, tattered banner?  It seems clear to me Boehner would much rather be doing something else, but even our worst criminals are entitled to a decent defense, and there’s a firm out there willing to provide it, and get compensated.  Frankly, I just hope they know what they’re in for.  That brief is going to have to walk across the tightrope Boehner, himself, keeps wobbling on, pulled taut from one end by the now pretty openly anti-gay end of the GOP spectrum, and from the other side, tugged by the responsible GOP wing that wants their party back from the party that keeps yelling it wants America back.  I can’t think of a court brief I’ve more looked forward to reading, and you can bet both of Boehner’s contending sides will be keeping a keen eye on every word, as well.

Frankly, I wish there were a full-throated defense of DOMA to be had.  It’s always best, and most gratifying, to win a pitched battle against a worthy opponent.  It doesn’t do anyone any honor to defeat a much weaker adversary, and winning by default is the least honorable kind of victory.  When Prince Hal praises the dying Hotspur, he’s also claiming something for himself in having defeated someone who was such a worthy challenger.

What we’ve learned after the Prop. 8 trial is that there are few highly respected people left in this country who will defend DOMA on its merits.  The patchwork of prejudice, misunderstanding, fear and sheer political cowardice that led to its passage has frayed, and while there’s enough left of that coalition that a party desperate enough can appeal to, the times, they have a-changed, and are continuing a-changing.

So I’m not expecting a full-throated, or even croaking defense of DOMA, but rather a timid tiptoe through the caselaw that avoids as many political minefields as possible.  Speaker Boehner will be paying dearly for exactly that, making no one happy, and hopefully we’ll be rid of this troublesome piece of DOMA soon.  There won’t be much honor in winning this case against a waning, whining assailant that once commanded a majority.  But we will get one more piece of the equality we’re entitled to.  I’ll take that.

Conservative (and not very gay friendly) columnist Thomas Sowell nevertheless scores some sharp observations about the current campaign against school bullying. While not mentioning gay youth (prime victims of harassment, intimidation and violence), he is otherwise correct in noting:

The courts have created a legal climate where any swift and decisive action against bullies can lead to lawsuits. The net results are indecision, half-hearted gestures and pious public pronouncements by school officials, none of which is going to stop bullies.

When judges create new “rights” for bullies out of thin air, just as they do for criminals, and prescribe “due process” for school discipline, just as if schools were little courtrooms, then nothing is likely to happen promptly or decisively.

If there is anything worse than doing nothing, it is doing nothing spiced with empty rhetoric about what behavior is “unacceptable”—while in fact accepting it.

If public schools aren’t allowed to enforce discipline and to actually punish bullies, then much of the anti-bullying rhetoric is just hypocritical posturing. And legislative mandates that schools “teach tolerance,” when they can’t teach kids to read and write, don’t inspire confidence. (School choice and private school vouchers, providing an actual incentive for public schools to get their act together as they compete for students, just might. At least victims, like Kurt on “Glee,” could flee their tormentors.)

The Human Rights Campaign’s castigating the House leadership for spending $500,000 (and probably much more) to defend the Defense of Marriage Act in court cases where its constitutionality is being challenged strikes me as proper. But the group’s criticism of the law firm of King & Spalding for taking the House’s case to defend the constitutionality of DOMA is somewhat grayer. While I don’t know that I would want to hire the firm that’s fighting against my rights, all sides deserve an advocate and I don’t fear a strongly argued case that makes clear what the constitutional issues are.

Update: King & Spalding feels the pressure and withdraws. Firm Partner Paul Clement, a former Solicitor General, resigned in order to continue the defense of DOMA he agreed to undertake. LGBT activists cheered; others warned of a New McCarthyism.

I wish the House wasn’t pandering to social conservatives in holding hearings on the legality of President Obama’s decision not to have the Justice Department support DOMA in court. But I question how constructive HRC’s attack on the hearings (“fixated on beating up on lesbian, gay, bisexual and transgender Americans”) will be. Democrats are able to call witnesses, too, if they so choose, I believe, so wouldn’t it be more productive to show up and make the best possible case?

More. In an earlier post I praised the administration’s decision to belatedly, after two years, stop defending DOMA in court. As I asked then:

Will the LGBT Obama partisans…who for the past two years have assured us that Obama had no choice but to defend DOMA against legal challenges, that he was legally obligated to order his Justice Department to do so, and who maintained that position by dismissing those of us who pointed to contrary precedents, now admit they were wrong?

Needless to say, the view that many of Obama’s supporters took then sounds eerily similar to the position that the House GOP is now taking—and that the pro-Obama folks are excoriating.

In 1961, Frank Kameny, the pioneering gay-rights activist who was fired from his government job because of his homosexuality, asked the Supreme Court to intervene. The court ignored him and his appeal was forgotten—until now.

Frank’s Supreme Court petition has resurfaced and is now in print via Amazon Kindle, courtesy of Charles Francis and the Kameny Papers project. It’s short; read it. At the very least, buy it (proceeds go to benefit Frank). It is a staggering document, not just of historical value but still, 50 years later, a summa of what the gay civil-rights movement is (or should be) about.

Later in the 1960s, with the emergence of the countercultural left and the counter-countercultural response from the religious right, gay rights became a left-wing movement. (As one activist put it in the 1970s: “Never forget, what this movement is about is fucking.”) Frank, from the start, set his sights much, much higher, drawing a straight line from the Declaration of Independence and the Founders to gay individuals’ right to be left alone and choose their own destiny. The natural home for Kameny’s rhetoric and argumentation is the libertarian right, not the left. The voices he channels are those of Thomas Paine and Thomas Jefferson:

In World War II, petitioner did not hesitate to fight the Germans, with bullets, in order to help preserve his rights and freedoms and liberties, and those of others.  In 1960, it is ironically necessary that he fight the Americans, with words, in order to preserve, against a tyrannical government, some of those same rights, freedoms and liberties, for himself and others.

In a more rational country, gay equality would have been a conservative cause.

When I say the document is staggering, I’m thinking of passages like this:

Petitioner asserts, flatly, unequivocally, and absolutely uncompromisingly, that homosexuality, whether by mere inclination or by overt act, is not only not immoral, but that for those choosing voluntarily to engage in homosexual acts, such acts are moral in a real and positive sense, and are good, right, and desirable, socially and personally.

Imagine the vision and courage it took to say that…to the U.S. Supreme Court!…in 1961! He’s saying that being gay shouldn’t just be tolerated. It shouldn’t even be merely accepted. It should be admired!

Half a century later, when 43 percent of Americans still tell Gallup that homosexuality is morally wrong, and when many gays are still reflexively hostile to the classical liberal tradition, the country is still struggling to catch up with Frank; but now, at least, we can all recognize this amazing man for the prophet he was. See for yourself.

To answer the question of how many homosexuals there are, you have to answer a prior question: What is a homosexual?

Gary Gates at the Williams Institute is doing his best to answer the first question in a new report. And while the results are a bit more clarifying than what has come before, they’re still no better than the imperfect answer to the more fundamental question.

Gates goes with the most minimal approach to the question of whom to count: people who identify as gay, lesbian or bisexual.  That’s fair, but is obviously underinclusive.  There are still probably millions of people in the country who are homosexual but in the closet in some measure.  It’s also a bit overinclusive, since the fluidity of bisexuality can sometimes give them a hall pass out of the laws (at least) that disadvantage those whose sexual orientation is more fixed.   Gates separately counts the number of transgender people, whose sexual orientation is independent of their gender or gender presentation.

Timothy Kincaid has some thoughtful criticisms of Gates’ methodology over at Box Turtle Bulletin, and Gates defends himself (but not his methodology) at the Washington Post.

The twin problems of whom to count and how to count them seem insoluble to me.  As with race, the number of confounding personal and subjective factors means that the very best we can do is approximate an approximation.  And with sexual orientation the subjectivity almost eclipses any objective criteria – except, of course, identification.  That is the one part of sexual orientation that is most clearly visible and public, and as close to objective (though still not truly objective) as science can accept.

What this new chapter reveals has less to do with sexual orientation than with our current cultural preoccupation with the biases of social science.   Gates says that it is important to have an accurate count of homosexuals “because legislatures, courts and voters across the country are debating how LGBT people should live their lives.”  But how do, or would, those discussions change if Kinsey’s old guesstimate that 10% of the population is homosexual is instead 3.5% or 1.7%?

The anti-gay folks are already subdividing the numbers Gates arrived at, and are trying their best to use his scientific candor to their advantage.  But their game exists in the same parallel universe that Gates inhabits.  The debate in those legislatures and courts is not a demographic one, nor is it a scientific one.  It is a moral debate about equality, and a legal one about the meaning of some pretty specific state and federal constitutional guarantees.  Numbers are, in fact, a distraction from that discussion, a detour some politicians are all too happy to take.

Nothing in the legal notion of equality requires a statistical threshold.  Journalists, in particular, are eager to entertain the social scientists because numbers always sound like they are meaningful and objective.  In this case, though, they are deceptive at worst, and flawed at their very best.  The only numbers we need are among voters and politicians.  Let’s devote our efforts to counting what counts.

The anti-gay religious right claimed “religious discrimination” when Wal-Mart fired an employee who verbally harassed a lesbian co-worker, screaming at her that she was “going to hell.”
The Seventh Circuit has now upheld the firing.

Wal-Mart, by the way, also should be free to fire a gay or lesbian employee who yells at a conservative Christian co-worker and calls her a “bigot” for attending a socially conservative church. But if and when such a case arises, would anyone be surprised if the gay employee were to claim “anti-gay discrimination”?

There’s been surprisingly little furor over the Arkansas Supreme Court’s decision this week to overturn a voter-passed initiative that prohibited unmarried couples from adopting or foster parenting children.  Fifty-seven percent of state voters approved the measure, and in a unanimous decision, the court said it violated the state constitution.

The opinion isn’t about same-sex marriage, exactly, and it isn’t a case holding that lesbians and gay men are entitled to equal treatment.  That may have tempered the acrimony and excitability that normally occurs at this stage of the kabuki.

But the opinion does overturn the will of the voters, which is the standard touchstone in these cases – at least where same-sex couples are involved.  Where are the calls for judicial impeachment?

Arkansas’s Act 1 only prohibits adoption or foster parenting to people who are cohabiting with a sexual partner outside of a lawfully recognized Arkansas marriage.  So, by its terms, it doesn’t single out homosexuals. There is a very good discussion at Eugene Volokh’s site about whether a headline saying “Ark. Court strikes down law barring gay adoptions” is accurate or not.  But there certainly wasn’t any doubt in the mind of Arkansans what and who the law was really about.  There doesn’t seem to have been much concern in the voter’s minds about heterosexual unmarried couples, who could, after all, get themselves lawfully hitched if they wanted to adopt a child.

The court’s reasoning turns on a simple question: Can any unmarried, sexually active partners serve as foster or adoptive parents in a way that would be in the best interest of a child?  The Act makes a blanket determination that non-marital sexual activity overrides the normal determination in these cases of a child’s best interest, and the court ruled that this made the law overbroad.  The Arkansas Constitution guarantees the state’s citizens freedom from governmental intrusion into adult, consensual, private sexual decisions, and laws that abrogate that freedom have to be very narrowly tailored or else they will be unconstitutional.

State law already allows courts to determine whether any particular couple, cohabiting or married (or any single person, for that matter), would serve a child’s best interest.  The Act’s wholesale elimination of one entire category of such potential parents puts any good parents in the excluded category to the choice of giving up their partner or their wish to adopt.  The court is quite savvy in noting that the state couldn’t really enforce any middle ground of making sure unmarried partners aren’t having sex.  That, after all, is the common sense underpinning of a constitutional right to sexual privacy – Bedroom Policing is beyond even the furthest limits of any legitimate government or any legitimate police force.

The unanimous opinion, while not pro-gay, rests on the same foundation that all civil rights movements rely on.  There may be – are – some same-sex couples who would not make good parents.  It is unlikely, I’d think, that many of them would go through what Arkansas requires to adopt a child, but it’s possible.  Existing law, though, provides for that by making courts determine whether any particular couple’s parenting potential would be in a particular child’s best interest.  No couple’s ability is prejudged, no child’s best interests decided by default.

Anything less is discrimination – judging someone based on other than their own merits.  That is really all lesbians and gay men are asking for.  The highest court in Arkansas read that state’s constitution as giving them — and the children they may want to raise — that chance.