IGF CultureWatch

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.

A sign of what’s wrong with today’s LGBT activism. Jeff Epperly explains how the Gay & Lesbian Alliance Against Defamation is attempting to silence non-PC openly gay writers.

As the American Family Association continues in its quest to become the most annoying of the conservative gadfly organizations, they couldn’t have come up with a better pick for patron saint than Newt Gingrich.  Last year, Gingrich provided them with $350,000, more than a third of their funding to “defend traditional marriage” in Iowa by recalling judges whose marriage ruling they disagreed with.

The cheap shots at Gingrich’s own troubled marital traditions are too easy and numerous, and frankly they distract from a more important criticism.  To court the right wing, Gingrich has to feign for them the same obsession with same-sex marriage that blinds them to issues of real importance.  I don’t think Gingrich is, in fact, so blinded, but his generosity certainly won their admiration, and bought them success.  Iowa’s voters did throw out the three targeted Iowa Supreme Court justices, and they’re gunning for more.

This offense is a dangerous kind of defense – of marriage or anything else.  The justices were not accused of misconduct, of incompetence, of corruption, or any kind of scandal, defect or misbehavior.  They were accused, and found guilty, of a result.

Far more than that, they were found guilty of only a single result.  No other cases in their long careers, no positions they had taken, no opinions they had joined, but that one, were at issue.

This is politics in full fury, the very thing the founders wanted to protect the third branch of government from.  Every day, judges across the country deal with an infinite number of problems, and do their best to solve conflicts that seem to have no other solution.  Appellate courts, in particular, get only the most developed of these cases, and the time to consider them fully.  Multiplicity is what makes reviewing courts work: multiplicity of judges, multiplicity of cases, multiplicity of parties.

A recall election like this is not without precedent, but there are damn few others.  That’s because of their inherent nihilism.  This is political vindictiveness of a special kind, a frenzy of unconcern.  No possible opinion on this one matter, not even a unanimous one, could be persuasive or correct if it comes to the disfavored conclusion.

This isn’t, perhaps, a definition of bias or prejudice, but it’s awfully close.  It cannot exist without a necessary prior assumption that any justice joining the opinion is somehow acting in bad faith.  There is only one correct answer here, and judges had better get it right.

That undermines the entire role of the judiciary as an institution.  We need our courts to resolve conflicts, both personal and political.  Few cases have split the nation like Bush v. Gore, but after all the political poison was aired, we accepted the result.  That respect for the institution, however grudging, is one of the things that holds this nation together.

Gingrich is aiding and abetting the AFA, and many others, in a rancid enterprise.  Maybe right now, the only judges who need to worry are those who think the constitution’s specific enumeration of equality applies to same-sex couples.  But it’s short-term victories like that that can lead to the next single-issue recall, and the one after that.  Perhaps that sort of judiciary, driven by the politics of the moment, is the one a President Gingrich would want.  But it’s nothing like the judiciary the constitution gave us, or the one this country needs.