IGF CultureWatch

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.

A report in Newsweek shines a light on “a part of life in the armed forces that hardly anyone talks about: male-on-male sexual assault.” Jesse Ellison writes:

While many might assume the perpetrators of such assaults are closeted gay soldiers, military experts and outside researchers say assailants usually are heterosexual. Like in prisons and other predominantly male environments, male-on-male assault in the military, experts say, is motivated not by homosexuality, but power, intimidation, and domination. Assault victims, both male and female, are typically young and low-ranking; they are targeted for their vulnerability.

A key argument by those opposed to letting open gays serve in the military was that it would lead to sexualized barracks (often with the none too subtle invoking of gays as sexual predators). In all likelihood, having open gays around will decrease the incidents of male-on-male sexual assault. Reporting and follow-up measures being put in place measures to protect straights from gays will have the effect of protecting both gays and vulnerable straights from the assaults of twisted, hetero bastards.

Related: The GOP’s House hearings this week on the repeal of “don’t ask, don’t tell”—a sop to the anti-gay right—failed to produce the bang the bigots were looking for.

“The whole thrust of the training is you’re supposed to go on treating everybody like you’re supposed to be treating everybody now—with dignity, respect and discipline,” [Secretary of Defense] Gates said.

Well, treating everyone with dignity, respect and discipline certainly would be a step forward!

University of Missouri law professor Thom Lambert takes aim at the claim by University of Pennsylvania law professor Tobias Wolff (writing at the Huffington Post) that gays should support labor union stances (or, as Wolff puts it, “Pushing back against the current assault on American workers should be one of the highest priorities of the LGBT community today—fully on a par with the effort to secure employment discrimination protections or relationship rights”).

Prof. Lambert responds:

If an expression of support for gay rights and the provision of benefits to gays were enough to create a “reciprocal obligation” to provide support, gay people would have to spend all their time pushing causes!

Which might be fine with Prof. Wolff, as long as they were progressive causes (Lambert notes that Wolfe is not demanding that gays endorse a BP plan to limit liability for oil spills, although BP is on the Human Rights Campaign’s list of “top businesses that support equality for lesbian, gay, bisexual and transgender employees”).

Concludes Lambert:

So, if you’re a gay person and you think collective bargaining by public sector unions is bankrupting state and local governments while fattening the civil service class, go gripe about it to your Republican neighbor over a beer. In doing so, you’ll be promoting the sort of social change that will ensure real equality for gay people in the future.

More. Dale Carpenter blogs:

Wolff’s argument comes from a long political tradition, going back at least to the 1950s, which maintains that gay rights are inextricably tied to a host of causes supported by self-styled progressives—everything from abortion rights to various left-wing revolutionary movements. Lambert is part of an emerging group of dissenters from the dominant progressive tradition in gay politics. It includes people who support gay rights but also support the rights of the unborn, oppose gun-control legislation, want taxes kept low, think social welfare programs are wasteful and counter-productive, doubt the value of national healthcare programs, and so on. They may be wrong about any or all of these things, but it is hardly obvious that sexual orientation—either as a matter of principle or as a matter of political strategy—should dictate the stands they take.

You may have seen this recent Washington Post/ABC poll: the latest and, in my view, most reliable of the still-few national polls which have shown an outright majority of Americans favoring same-sex marriage.

I have been as careful as anyone to read the polls cautiously. When people are offered the third alternative of civil unions, support for SSM falls to the 30-40 percent range (though the trend has been upward). And it is true that more people say they support same sex marriage than vote for it.

That said, I scratch my head when reading conservatives’ interpretation of the poll. “Don’t believe it,” says a National Review editorial (April 18):

Respondents seem to tell interviewers that they favor same-sex marriage because they think it’s what they are supposed to say. Their answers are more negative when voting or responding to robo-polls… The poll is not evidence that a majority of Americans support same-sex marriage. It is, however, evidence that its supporters have succeeded in setting the terms of the debate.

Or that, says Maggie Gallagher, they have succeeded in “intimidating and silencing” gay-marriage opponents. “America is becoming a place where people have to be wary about saying what they believe.” Got that? Gay marriage opponents are…an oppressed majority.

Having relied so long on the argument that elites are trying to ram gay marriage down the throats of an unwilling majority, opponents now have their backs to the wall. In the face of evidence of shifting public opinion, they have little choice but to deny.

Even if it is true, however, that people are growing more reluctant to express opposition to SSM—which, by the way, would be evidence of changing public morality, not of “intimidating and silencing”—it strains credulity to say that nothing but bullying is reflected in Pollster.com’s Charles Franklin’s splendid scatterplots of poll results going back more than two decades.

As the charts show, support for SSM rises slowly but steadily over time, and opposition declines—on both the two-way and three-way questions. Are we to believe these results measure nothing more than the creeping menace of gay bullying?

Here’s something else, from Gallup. Over a decade, the trends in approval of same-sex relations mirror the trends in approval of same-sex marriage. Is that “intimidation” too? A coincidence?

To me it seems pretty hard to sustain, with a straight face, the claim that these polls don’t represent real changes in public opinion. I don’t think there’s a national voting majority in the U.S. for same-sex marriage. But I do think the day is coming.

One reason is the poor job that SSM opponents have done convincing the public that keeping gay couples out of marriage will help keep straight couples in. Another is their refusal to address the country’s growing moral compassion for gay Americans. Denial doesn’t cut it.

The Republican Party as a whole is not supportive of gay equality. You might think that would lead LGBT political groups to try to increase the number of pro-gay (and openly gay) Republican office holders, who once elected would be in a position to change the party. Alas, that’s not the case.

Take the Victory Fund. Its stated mission is “To change the face and voice of America’s politics and achieve equality for LGBT Americans by increasing the number of openly LGBT officials at all levels of government.” But the group has long had a virtual litmus test against pro-life gay candidates, which (with rare exception) has excluded endorsements for gay Republicans. Robert Turner, president of the D.C. chapter of Log Cabin Republicans, argues “being pro-life is not bad for the gay cause” and is urging the Victory Fund to “Get rid of the pro-abortion plank in your vetting process and move on.”

Another case in point; Just this week Equality California (EQCA) endorsed Democrat Debra Bowen for Congress. She’s a pro-gay liberal, but also running for the seat is popular Republican Redondo Beach mayor Mike Gin, who is openly gay and married (yes, to a man).

You’d think sending him to Congress would convey a powerful message to the GOP and be a significant step toward changing the party’s anti-gay stance. But fealty to the Democratic Party remains the top priority of a great many LGBT activists, whose worst fundraising nightmare is a GOP that isn’t adamantly anti-gay.

More. Log Cabin Republicans are “Proud to Support One of Our Own, Mike Gin, For Congress.”

MSNBC’s Lawrence O’Donnell could maybe, as Jon Stewart says, “Take it down a notch for America,” but he makes a sound enough point; anyone who refers to America’s “Catholic vote” is not saying anything coherent.

But I think O’Donnell misses the most important comparative statistic.  He overemotes the fact that 56% of American Catholics don’t believe same gender sexual relations are a sin, which is ten points higher than the general population.

True enough.  But far more important is the fact that this number is a full 56% higher than the figure for Catholic leadership on that supposedly doctrinal issue.

This is unsurprising to anyone who knows or loves an American Catholic.  But it’s importance goes much further than religion.  It’s not out of the question that the Catholic hierarchy is viewed favorably — at least on sexual morality — by about the same percentage of American Catholics as Muammar Gaddafi is, on any issue, by the Libyan people.

The difference, of course, is that Gaddafi has arms and the Vatican doesn’t — any more, at least.  But the larger point remains.  When leaders get too far out of touch with the people they’re supposed to lead, they lose their credibility.  The Vatican has credibility on many other, real moral issues, but its positions on sexuality have become bizarre through neglect or just stubbornness.  Catholics can freely ignore the Vatican since it has no real enforcement authority.  They can go to church (or not) for the good things the church stands for, and shake their heads at the more ludicrous positions.

With luck, we’ll be able to help a coalition deprive Gaddafi of his enforcement authority, and help the Libyan people enact the revolution of disregard for incompetence and malfeasance that this country’s Catholics have successfully fought and so happily won.