IGF CultureWatch

Newt Gingrich deserves all of the brickbats and damnation he is getting for his uninformed and thoroughly wrong opinion about the President’s DOMA decision.  I’ll only add a word about why his pugnacious subterfuge will have some appeal — and why it shouldn’t.

Gingrich is trying to morph Obama into San Francisco’s Gavin Newsom.  Newsom, in fact, is the lawless politician Gingrich wishes Obama were, who not only refused to enforce California’s anti-gay marriage prohibition, he ostentatiously allowed people in his city to openly violate it.  This was a politically savvy and profitable move for him (he is now California’s Lieutenant Governor) but it was an unapologetic violation of his legal duties, something the California Supreme Court made abundantly clear.

Obama is not Newsom.  Newsom took what he believed to be a moral position, akin to civil disobedience.  That is fine for individual citizens, but it is a bit more precarious for someone whose job is to administer the law.

Obama has either learned from Newsom’s escapade, or is relying on a different political instinct.  Eric Holder’s letter to Speaker John Boehner could not have been clearer that (a) the administration will continue to enforce DOMA as long as it is the law; and (b) that while the administration will not defend it in court, they are not trying to sandbag anyone, and want to give other parties with an interest, up to and including Congress, itself, the ability to defend it as best they can.

Enforcing the law is a clear legal obligation of any administration, local, state or federal.  But defending laws in court is imbued with political judgment.  While it is now being brought out as a bogeyman to wither the left, a Republican President who does not want to defend Roe v. Wade has leeway to make that call.  There are others who can step up to the plate.

The executive’s leeway here comes for an obvious but often depreciated reason.  The courts are a separate branch of the government.  While the executive branch can normally be relied on to defend laws, the executive is not the only possible party in a court proceeding.  Certainly, courts may give a bit of extra deference to the executive’s position, but the court’s duty is to the law itself, not to any particular party in the case.

Whether a statute is defended or opposed by Richard Nixon or the ACLU or the American Nazi Party or Congress, the courts rule on the validity of a law independent of the nature of the contending parties.  The courts are always subject to suspicion about political motives in decisions, but contrary to easy rhetoric, no single judge ever has the final say on any law.  Both the state and federal court systems have elaborate mechanisms for appeal, where multiple judges holding a myriad of political and personal views take part in the process of making these consequential decisions.  And the higher a case goes in the process, the more judges there are on the panel.  That is no guarantee against political motivation in the judiciary, but it’s an intentional layer of insulation from the naked politics of the executive and legislative branches.

Obama made his political and moral decision not to defend DOMA because that kind of choice falls within the judgment any president has.  But in the area where he has no such latitude – enforcing the law as it currently stands – he has made it as clear as can be that he will do what the law requires.

Gingrich and others may wish Obama were someone else, and may try to mischaracterize his actions to that end.  But Gingrich is today what he has always been, a cheap charlatan with a used car salesman’s patter and sincerity.

Steve Miller isn’t kidding that the Administration’s decision about DOMA is good news.  I’d call it a game changer.

Nothing in the Attorney General’s letter limits the analysis he uses, which is why a lot of folks are jumping the gun and saying its reasoning will apply to all gay issues.  That’s probably true, but premature.  Let’s all take a deep breath.

While the courts don’t necessarily need to take their cues about the issues in a case from the parties, that is clearly the preference and practice.  And while the way the federal government articulates the issues wouldn’t necessarily be the be-all and end-all, again, that would clearly be of significance to a court.  The federal government is no ordinary party.

I think the administration is trying to get the first rulings on DOMA focused on (a) Section 3 and (b) how it applies to states that have already adopted full marriage rights.  Section 3 just applies to the federal government, and says it can only recognize opposite sex marriages.  Courts generally shouldn’t reach out for issues — and particularly constitutional issues — that go further than are required to actually decide the particular case before them.  So a court, and particularly the Supreme Court, could heed the government’s lead, and decide only those two issues — Is Section 3 constitutional with respect to the federal government as it applies to a couple who are legally married under a state’s law?

That would leave other issues for another day — civil unions and domestic partnerships, Section 2 (which allows states the freedom to ignore same-sex marriages from other states), etc.

And a decision along those lines from the Supreme Court would be the best win of all, I think.  Moving marriage squarely into the equality column is a solid victory.  And if the Supreme Court were to rule that sexual orientation is entitled to heightened (but not strict) scrutiny, that resolves one of the foundational issues the lower courts has been struggling with — though it’s also possible the court could adopt rational basis and still rule that federal treatment of two marriages, one straight, one gay, is not equal treatment under the law.  Or Justice Anthony Kennedy could move a bit further on his liberty analysis from Lawrence v. Texas, a different kind of analysis entirely.

In any event, this would then leave the lower courts to wrestle for a few years with the other questions, and the Supreme Court could see how that develops.  It’s not out of the question that lower courts could rule in our favor on the more contentious issues, and the Supreme Court would not need to say an additional word.  The biggest problem, from our perspective, is when lower courts disagree and the Supreme Court needs to resolve the disputes; if the lower courts rule in our favor, the Supreme Court can just refuse to accept certiorari from the losing parties.  They don’t need to accept any case offered to them, and in fact refuse the vast majority.

The most amazing thing about this decision for me, though, is still the political aspects of it.  Obama has made the political decision that the split in the electorate that worked against Clinton, Gore and Kerry has now been edged more solidly into the GOP side.  In other words, the toxic effects of the anti-gay marriage side have migrated away from the Dems and more generally the independents, and are most potent among the Republicans now.

That’s why the letter is addressed solely to John Boehner.  The Administration has taken an unambiguous stand in favor of gay equality on marriage.  The ball is now in Boehner’s court, and his party’s

This extremely high profile move will have a year and a half to work its way into the public opinion polls, but I think the timing is just about right, and Obama will prove to have the better case on this issue come 2012.  Gay marriage will exacerbate the existing split among the GOP, and if the economy improves (clearly one of the biggest issues on voters’ minds), gay marriage will only hurt the GOP — the exact opposite of the effect it had in 2004.

These things are never certain.  But I think Obama’s political and legal instincts on this get it just right.

This is good news: the Obama Administration drops its defense of the Defense of Marriage Act. How this plays out in the court cases, however, remains to be seen, but at long last our “fierce advocate” isn’t actually opposing judicial efforts to secure federal recognition of state-sanctioned same-sex marriages.

Added. Will the LGBT Obama partisans (including several commenters to this blog) 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? Nay.

On another topic in the news, I’m reposting this update to a prior post, with a nod to what’s going on in Wisconsin, Ohio and Indiana:

Here vs. There. It’s worth noting that, unlike the British Conservative party, the U.S. Republicans are under the sway of a powerful and well-organized religious right contending for influence with a more libertarian, small-government “leave us alone” faction. That’s a challenge on the right that will have to be confronted for many years to come before we see a Republican president call for “equal rights regardless of race, sex or sexuality” [as Conservative British Prime Minister David Cameron recently did].

Moreover, Britain’s Conservatives are in a governing alliance with the Liberals against the leftwing, union-dominated Labour party. But in the U.S., our traditionally liberal party, the Democrats, are now controlled to a large extent by public-sector unions. So we no longer have a pro-market liberal party. That leaves us with a rightwing party dominated by social conservatives and a leftwing party driven by redistributionist unions. Hence, our sad political predicament.

Indeed.

More. David Boaz on Madison, Wisconsin: The Athens of the West.

The Advocate publishes (online) a dissenting commentary:

Over the last months, conservatives have complained to The Advocate about its inaccurate and glowing coverage of Obama administration official Susan Rice, its lack of coverage of John Bolton’s support for “don’t ask, don’t tell” repeal and gay marriage, and its whitewashing of Nancy Pelosi and Harry Reid’s failed two years of dominance. . . . It’s time The Advocate stops painting Democrats with a perfect brush and starts highlighting the efforts of gay conservatives working to limit government’s involvement in LGBT people’s lives.

Facebook’s decision to include “civil union” and “domestic partnership” as relationship statuses is not an unmixed blessing.  Marriage Equality’s Mollie McKay is right enough that “. . . it’s important to be able to recognize and describe the legal status of same sex couples.” Facebook is the virtual New York: If you can make it there, you’ll make it anywhere. . .

But all this does is clarify for the world that, when it comes to being homosexual, It’s Complicated.  Facebook used to offer same sex couples the legally accurate but obviously wrong option of saying they were “single,” or the vague but helpful “in a relationship.”  Five of the other options (“engaged,” “married,” “separated,” “widowed” and “divorced”) locate people on the spectrum of the ordinary marriage spectrum.  The two others, “in an open relationship” and “it’s complicated” acknowledge the varieties of human experience.

So adding civil unions and domestic partnerships clarifies some new legal options and lets same-sex couples identify themselves more precisely.  But the cost of that precision is an additional level of social clutter.  Prior to the creation of domestic partnership as a legal category in 1985, and Vermont’s civil unions in 2000, no same-sex couples would have referred to themselves in such legalistic terms.  They would have said they had a committed relationship, and would almost certainly have married one another if the law allowed.  And on the other side of the scale, it is unlikely at best that any significant number of committed heterosexual couples (i.e. the ones who wouldn’t call their relationship “open”) would have dreamed of formalizing their relationship in any way other than a marriage.

Domestic partnerships and civil unions are way-station categories, created only because the vacuum in the middle of gay lives was so obvious and oppressive, at first only to same-sex couples, but increasingly to heterosexuals who could see the glaring injustice.  While the law can not prohibit same-sex couples from loving one another and forming commitments, it can nevertheless enforce a blasé cruelty by simply ignoring the relationships entirely, treating them as a legal irrelevancy.

It is that blasé cruelty that makes Maggie Gallagher and so many others irksome.  But it is exactly because of social speedbumps like Gallagher that we have to further complicate the world before we can resimplify it in a more inclusive way.

Domestic partnerships and civil unions, at least when they provide comprehensive state benefits and responsibilities identical to those of married heterosexual couples, are not as egregiously offensive as some argue; they lie somewhere between deeming our relationships 3/5 of a real relationship and full equality, neither as bad as the former nor achieving the latter.  We are clearly making progress on full marriage equality, but there we have to expect some political defeats in the years ahead.

That is the compromised ground we will be working from for the next generation.  Facebook has made it clear that ground is solid if confounding.  Let’s just hope we can stick with two additional relationship categories for awhile, before we wind the world back to just having one for everybody.

Sarah Palin and Sharron Angle say it’s OK with them if GOProud, a gay Republican group, attends the Conservative Political Action Conference. This distinguishes them from a number of other leading Republican figures. Good on them.

But how grateful should we be? At The Daily Caller, Jeff Winkler calls out gay-rights groups for “willfully ignoring” Palin’s and Angle’s gestures:

The nation’s largest gay rights advocacy organization, the Human Rights Campaign (HRC), has instituted its own “Don’t Ask, Don’t Tell” policy toward conservative firebrands Sarah Palin and Sharron Angle after they implicitly — but clearly — voiced support for the gay-oriented Republican group GOProud.

I agree that mainline gay groups have been too partisan (though I also agree that Republicans have given them little cause for bipartisanship). IGF came into being partly to make this point.

But are we really supposed to praise Republican politicians simply for saying they’re willing to share a convention hall with—well, with “diverse groups,” as Palin delicately put it? (Would it have been so hard to say “gays”?) Isn’t that setting the bar a bit low? Shouldn’t we expect them to do or say something that might actually help us? Or at least specifically acknowledge that we exist?

Put me down with HRC on this one. I’ll keep an open mind on Palin. But I’ll praise her when she earns it.

The odds that Rep. Ron Paul will ever be president are very slim. But it’s still nice to see him best Mitt (amend the Constitution to ban gay marriage) Romney and win the presidential straw poll at CPAC—the Conservative Action Political Conference—thanks largely to his energized young supporters.

For those who don’t know, Paul was one of just five GOP members of Congress who voted to end “don’t ask, don’t tell.” And during his 2008 presidential run, when John Stossel (then of ABC’s 20/20) asked if gay people should be allowed to marry, Paul, an opponent of the anti-gay federal marriage amendment, replied “Sure…I’d like to see all governments out of the marriage function. I don’t think it’s a state function; I think it’s a religious function.”

As the Economist reports, Conservative British Prime Minister David Cameron gave a resounding endorsement to what were once termed liberal values and against the sort of state multiculturalism that defends the separatism of immigrant communities, including radical Islamism, and opposes their cultural integration into Western society.

Cameron declared that the state needs actively to promote values of “freedom of speech and worship, democracy, rule of law and equal rights regardless of race, sex or sexuality.”

Added the Conservative PM:

Under the doctrine of state multiculturalism, we have encouraged different cultures to live separate lives, apart from each other and the mainstream. We have failed to provide a vision of society to which they feel they want to belong.…

We need a lot less of the passive tolerance of recent years and much more active, muscular liberalism.

His remarks, not surprisingly, were dismissed by progressives.

Relatedly, columnist Abigail R. Esman describes how the liberal media’s refusal to investigate and report on the wave of honor killings of young women by their families in Islamic immigrant communities led her to reassess her progressive politics.

More—Here vs. There. It’s worth noting that, unlike the British Conservative party, the U.S. Republicans are under the sway of a powerful and well-organized religious right contending for influence with a more libertarian, small-government “leave us alone” faction. That’s a challenge on the right that will have to be confronted for many years to come before we see a Republican president call for “equal rights regardless of race, sex or sexuality.”

Moreover, Britain’s Conservatives are in a governing alliance with the Liberals against the leftwing, union-dominated Labour party. In the U.S., our traditionally liberal party, the Democrats, are now controlled to a large extent by public-sector unions. So we no longer have a pro-market liberal party. That leaves us with a rightwing party dominated by social conservatives and a leftwing party driven by redistributionist unions. Hence, our sad political predicament.