IGF CultureWatch

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.

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.