IGF CultureWatch

From respected conservative legal theorist Michael McConnell, an interesting WSJ op-ed on DOMA: The Constitution and Same-Sex Marriage. He backs a federalist approach that finds a reasonable way to restore same-sex marriage in California (arguing that those seeking to void the district court ruling that threw out Prop. 8 lack standing to do so) while also getting rid of DOMA’s ban of federal recognition of same-sex marriages in states where they are legal, without imposing same-sex marriage nationally. That sounds like a decent solution (certainly, we could do much worse), avoiding a political backlash in southern and conservative states. Unless equal really does mean equal under the Constitution, whatever the backlash.

This New York Magazine report shows how it’s a fearsome muddle to get divorced when you’re married in one state but not in another. States have residency rules for divorce but not for marriage, so if you can only get divorced in a state that recognizes same-sex marriages but you live in on that doesn’t, then someone you may have broken up with years earlier may claim a legal right to make medical decisions for you and inherit your property. And if the Supreme Court ends federal marriage discrimination and nothing else, the not-quite ex could claim the beneficiary’s share of your Social Security. You also can’t move on and marry somebody else while residing in a non-marriage-equality state. That’s not good.

More. Via Slate, The Sexual Fetish of Gay Marriage Opponents: “Defenders of DOMA and Prop. 8 say marriage isn’t about love or parenting. It’s about coitus.”

Furthermore. Richard Epstein, thoughtfully, on Gay Marriage and the Libertarian’s Dilemma:

Though I am still uncertain of how I would come down in these two cases, in the interest of full disclosure, I did lend my help to the anti-DOMA team…. But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. Now, if he would only agree to return to the more general principle of freedom of contract embodied in Lochner v. New York as part of that decision, then it would indeed be a red-letter day for the Court.

George Will argues that the Defense of Marriage Act (DOMA) is an unconstitutional abuse of federalism and that:

Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.

More evidence of the changing wind: NFL players, rappers, conservatives among those supporting same-sex marriage.

Politico informs that, regarding Hillary Clinton, “the gay community adores her.” She recently announced her support for marriage equality via YouTube by “speaking directly to the camera without an interviewer who could ask follow-up questions on issues like the Defense of Marriage Act, which her husband signed.” Nevertheless, “Unlike [GOP Sen. Rob] Portman, who was castigated by some on the left for taking what was seen as a selfish position, Clinton—who in 2008 was against gay marriage—was praised.” And, of course, the Human Rights Campaign led the parade in terms of gushing.

Similarly, When ‘Yes’ isn’t enough.

More. Why support for gay marriage has risen so quickly:

Combine the fact that young people are heavily supportive of gay marriage and every generation is growing more in favor of legalization as they age and you see why the numbers on gay marriage have moved so quickly—and why they aren’t likely to ever reverse themselves.

Furthermore. Via Margaret Hoover, Slowly, GOP shifting on same-sex marriage:

Pro-marriage-freedom Republicans are on the right side of history and in time their courage and contributions will help erase the stain of bigotry that holds the conservative movement back and stops us from connecting to a rising generation of Americans.

Twenty years after the publication of A Place at the Table, our friend Bruce Bawer ruminates on the meaning of “gay culture”:

When gays, socially speaking, are in the process of being integrated into the mainstream, and when the cultural works created by and/or about gay people are no longer consumed exclusively or even mostly by gay people, what does this say about what gay culture has become? In what ways, moreover, has the mainstreaming of openly gay culture (as opposed to the covertly gay culture of the Noel Cowards and W.H. Audens that was always a part of the mainstream) changed the mainstream? These are big—and fascinating—questions, and the answers are elaborate and complicated.

The IGF blog (and the “Culture Watch” column that preceded it, syndicated in a few brave gay papers), had its origins in the gay culture struggles that Bruce has analyzed so well.

The Republican National Committee released a sweeping report aimed at revitalizing the party following its losses last November, noting that:

For the GOP to appeal to younger voters, we do not have to agree on every issue, but we do need to make sure young people do not see the Party as totally intolerant of alternative points of view. Already, there is a generational difference within the conservative movement about issues involving the treatment and the rights of gays—and for many younger voters, these issues are a gateway into whether the Party is a place they want to be.

If our Party is not welcoming and inclusive, young people and increasingly other voters will continue to tune us out.

This has not gone down well with many. Conservative columnist Byron York comments:

That is not a flat-out declaration that the RNC supports gay marriage— but it’s pretty close. In addition, RNC Chairman Reince Priebus, in introducing the report Monday, said Sen. Rob Portman, R-Ohio, had “made some pretty big inroads” into broadening the party’s appeal by declaring support for gay marriage last week. Again, the report’s position puts the RNC in danger of a breach with key grass-roots supporters.

That’s mild compared to what Rush Limbaugh had to say:

If the party makes [gay marriage] something official that they support, they’re not going to pull the homosexual activist voters away from the Democrat Party, but they are going to cause their base to stay home and throw their hands up in utter frustration.

Thus the battle lines are drawn, with action and reaction from the party. But who would have thought that the RNC itself would ever have taken such a bold step—not the LGBT progressives, who have written off the party as hopeless.

Sen. Portman’s dramatic reversal. Now all we need is 40 more Republican senators’ sons to come out.

In other news, CPAC may have banned GOProud, but its clear which way the wind is blowing.

More. Jennifer Rubin writes: “the question is not whether the GOP comes to terms with gay marriage, but when and how many elections it will lose along the way.” Indeed.

Furthermore. Via Michael Barone: Support for same-sex marriage crosses party lines. Or at least it now could, if there were a will to engage with libertarian conservatives rather than to just raise money for Democrats.

Still more. Again, via Jennifer Rubin:

Thirty years after Ronald Reagan was president, Republicans are still running on a tripartite alliance of social, fiscal and foreign policy conservatives. Alas, such candidates run on a myth; that coalition has splintered and what will replace it is far from clear. . . .

One approach would be to become the reform party on entitlements, education, health care, employee unions and even the Pentagon while being agnostic on social issues. Or the party could go fully libertarian leaving hawks and social conservatives adrift but gaining urban and suburban professionals and social liberals. Another formula would be to embrace pro-life, pro-immigration, strong-on-defense conservatives with a Tory welfare state that loses business conservatives but takes on working class and minority voters.

This battle must be engaged. Too bad the largest LGBT lobbies are cocooned up with their Democratic party commanders, working to keep the GOP as anti-gay as possible (e.g., HRC’s backing Democrats running against openly gay and gay-supportive Republicans).

The Washington Examiner’s Byron York asks, Will GOP’s new vision be shaped by Paul or Rubio? He reports that when they spoke this week at CPAC, Sen. Mario Rubio told Republicans “we don’t need a new idea” and declared that “traditions— traditional marriage, traditional values—are still good.”

In contrast, Sen. Rand Paul told the audience, crowded with his enthusiastic young supporters, “The GOP of old has grown stale and moss-covered,” and that “Our party is encumbered by an inconsistent approach to freedom. The new GOP, the GOP that will win again, will need to embrace liberty in both the economic and personal sphere.”

Rubio comes out of the party’s social conservative wing, while Paul’s base is the smaller but faster-growing libertarian wing nurtured by his father, former Rep. Ron Paul, who opposed the anti-gay federal marriage amendment and supported allowing gay people to serve openly in the military.

Paul has not endorsed marriage equality, but it’s clear his vision is one that gay equality advocates could work with. The battle in the GOP is now engaged.

Meet the new pope, same as the old pope:

Amid changing mores on sexuality, including same-sex marriage, Francis’ traditional views have clashed with cultural changes in Argentina. Before the nation legalized same-sex marriage in 2010, Francis called it a “destructive attack on God’s plan.”

In my view, declaring that you know “God’s plan” and that love and marriage for gay people isn’t part of it is the worst kind of blasphemy. Blind guides and pharisees still hold sway over the church of Rome.

An honest look at the Clinton administration’s support for the anti-gay Defense of Marriage Act, from former head of the Human Rights Campaign Elizabeth Birch:

…in the middle of my testimony before Congress on the constitutionality of this horrible law, the Clinton Justice Department, then headed by Janet Reno, had a letter delivered to the committee stating that, in the opinion of the Justice Department, DOMA was constitutional. (I was cut off mid-sentence as one of the more extreme house members read it aloud into the room with glee.)

…beyond signing the bill into law, the 1996 Clinton campaign decided to run ads on Christian radio bragging that DOMA had become the law of the land. …it was the president himself who wanted to run them and asked in anger whether he had any say in the matter.

President Clinton took DOMA out of play by announcing quickly he would support it and signed it into law near midnight on Sept. 21, 1996. … The Clinton campaign went on to use the LGBT community like a cash machine for reelection.

It’s all politics. And all politics is by its nature corrupt.

At the Daily Caller, Jamie Weinstein has now suggested a couple of times that Republicans speak out against the horrendous gay-suppression bill in the legislature of Uganda:

Why doesn’t a conservative GOP senator — or senators — pick up the cause and speak out strongly against this human rights travesty, demanding that the Uganda parliament reject the bill lest there be penalties?

Maybe this would help the GOP with the gay community by showing that just because conservatives generally oppose gay marriages, they are not indifferent to violence against gays around the world. Maybe it wouldn’t help. But at the very least, it would be the right thing to do.

Aside from the intrinsic merit of this idea, I agree with Weinstein that it would be good politics — many moderate voters are currently put off by the Republican Party’s image of disrespect for gay people, and speaking out against persecution is one way to signal respect. But are senators ready to court the wrath of the likes of the AFA’s Bryan Fischer, who has applauded the Uganda legislation?

Our friend Dale Carpenter along with several other libertarian-leaning, nonleftist law professors filed an exemplary brief arguing that DOMA is unconstitutional under federalism principles:

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis. Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power. It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers. Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.

An array of briefs have now been filed from left-progressive to libertarian and center-right. That’s laudable. But let’s recall how the libertarian Cato Institute’s amicus brief in Lawrence v. Texas was the one that Justice Kennedy cited in his opinion overturning state sodomy laws (note: he didn’t cite the briefs from NGLTF or HRC).

As in Lawrence, Justice Kennedy (and perhaps, now, even Alito and Roberts) aren’t going to be swayed by the bigger-government, Democratic party-aligned progressives. But it’s still good to have them onboard.

More. Here is analysis that includes a link to the Cato Institute’s brief in favor of marriage equality.

Furthermore. James Kirchick writes:

At the time of the Stonewall Riots in 1969, few would have predicted that a movement predicated upon sexual liberation would mature into one calling for the right to get married and serve openly in the armed forces.

Some liberal gay activists, suffering from a bout of historical amnesia, do not like what they see as an attempt by conservatives (gay and straight) to claim the cause of marriage equality as their own.

Still more. Not a constitutional argument, but a powerful video ad from Republicans United for Freedom.