IGF CultureWatch

I can recommend, sort of, that you read National Review’s recent cover editorial, “What Marriage Is For” (online, “The Case for Marriage“). It’s a good example of how not to make a case.

The article is a mass of non sequiturs. It assumes that if marriage is “for” something—regulating procreative sex—then using it for anything else must be “against” marriage, which is like saying that if mouths are “for” eating, we mustn’t use them for talking or breathing. It claims (conjecturally) that marriage would not have arisen if not for the fact that men and women make babies, from which it concludes that society has no stake in childless marriages.

It argues that marriage, and a culture of marriage, are good and important, a point on which thoughtful gay-marriage advocates enthusiastically agree. But, of course, our whole argument is that including gays won’t stop marriage from doing the good things it now does, and will probably strengthen marriage and the marriage culture. Maybe we’re wrong. But the editorial doesn’t even bother to engage. It proceeds as if “gay marriage is bad” follows obviously from “straight marriage is good.”

Confronted with the obvious fact that no society has ever excluded sterile heterosexual couples from marriage, and that excluding them would be absurd, the editorial simply baffles. “An infertile couple can mate even if it cannot procreate.” It can mate? If “mate” means “have heterosexual intercourse,” the argument merely assumes the conclusion, and “procreativity” has gone right out the window. The article notes that the inclusion of sterile straight couples does not prove that marriage “has nothing to do with” procreation. Right! But it also does not prove that marriage has only to do with procreation. In fact, it quite strongly suggests the contrary.

I could go on. The public, thank goodness, is thinking more seriously and clearly about marriage than are the editors of National Review, which is why the public is coming around.

Florida Gov. Crist shifts support on gay rights issues. I sometimes wonder if any politician believes in anything other than their own will to power, and organizing effective electoral coalitions to that end.

More. Republican John Dennis isn’t going to beat Nancy Pelosi in San Francisco, but his ad is fun.

To David Link’s eloquent plea to the U.S. Senate, below, I’ll add these thoughts. Regarding the district court ruling that “don’t ask, don’t tell” is unconstitutional, I agree that if barring openly gay people from serving in the military (that is, requiring that they lie and hide, subject to discharge if the truth about their orientation should be learned) is based on societal hostility and the presumed (or even real) prejudice of heterosexual troops, then the policy is in violation of constitutional protections ensuring due process, free speech, and (more generally) equality under the law.

But that’s a different question from whether it would be a better political course to reverse “don’t ask, don’t tell” via congressional action rather than by court ruling. A legislative death to the policy would be less likely to provoke a backlash by those claiming judicial overreach. (Of course, if the judiciary did not, in fact, so often overreach to advance a political agenda not grounded in ensuring constitutional protections for all, then such claims would be less effective, but that’s another story).

So here’s hoping that Log Cabin’s to-date successful lawsuit may light a fire under a recalcitrant Senate.

The Usual Suspects have made the Usual Statements about the new court opinion concluding that Don’t Ask, Don’t Tell is unconstitutional.  The gays, including the Log Cabin Republicans (who brought the suit) think it’s great, and the Christianists think it’s a horrible act of judicial overreach.  The political universe remains in balance.

To that, I’ll add my own entirely predictable comment.  Whether you agree with the opinion or not, yet another judge has spent a lot of time listening to the evidence of one side, and doing her best to balance that against virtually no evidence on the other.  As in Perry v. Schwarzenegger, the side supporting a law that openly discriminates against lesbians and gay men relies on a majority vote and pretty much nothing else to justify exclusion of an extremely small minority.

In the 85 page DADT opinion, there are 54 pages devoted to laying out the evidence that DADT is unconstitutional.  Weighing against that is a vote of Congress, ratified by a president’s signature.  No judge would or should take that lightly, but neither is a judge obligated to ignore what the law actually does.  And once again, a court has found that the hard evidence of unconstitutionality is more compelling than the vaporous political pretexts rationalizing a majority’s prejudices.

Did the court blithely dismiss concerns of national security?  Well, the administration defending the policy doesn’t think that’s at issue, and the court quotes the Commander in Chief to that effect.  So it’s unfair and incorrect for anyone to criticize the court for ignoring such concerns.

But in the end, everything returns to politics.  And congressional repeal of DADT is exactly what lesbians and gay men, and their allies, are vigorously pursuing.  But the problem of politics, the fundamental lack of rationality that drove passage of this miserable law in the first place, still plagues the Senate.  Harry Reid is not unaware of the evidence the court considered here, and found convincing.  He knows that 80% of Americans now say they support repeal of DADT.  I would not be surprised to learn that 80% of Senators think repeal is probably the right thing to do.

But the fear, the sheer panic that some people still feel about homosexuals, remains the decisive factor in any politician’s calculation.  It takes more than courage to get past that very irrational and very real fact; it takes independence.  Court after court after court is now exercising its constitutional independence, and after laying out all of the real evidence, the genuine facts, they are more consistently finding that our politics still is not ready to face up to its obligation to ensure the equality of homosexual citizens, which means the courts have to correct the deficiency.

The Senate now has to confront a double challenge to its political fears.  It has a public vote of confidence larger than any I’ve seen on any other issue in modern times, and it has a court decision saying that fairness is constitutionally required.  Is the Senate really willing to let the incoherent distress of about 20% of our population continue to form the basis of an unconstitutional, unpopular and unwise policy of naked discrimination?

According to a report posted by Jon Ward at The Daily Caller:

Mississippi Gov. Haley Barbour issued a subtle rebuke Wednesday to conservative and Republican leaders who have focused on religious and social values issues this year, saying they were taking the GOP off message in an election year when voters care overwhelmingly about economic issues. . . . When asked about comments by Indiana Gov. Mitch Daniels, a Republican, that said the GOP should call a “truce on the so-called social issues” to focus on fiscal matters, Barbour said he supported the sentiment.

Elsewhere at the Caller, Alex Knepper posts that Montana’s Big Sky Tea Party gave the boot to one of its leaders over anti-gay statements. Writes Knepper:

The Tea Party has shown itself, time and time again, to be a force against those who would seek to focus on abortion and homosexuality. In fact, it has been an unmitigated blessing for those who were exhausted with the religious right’s veto stamp over Republican Party behavior. It has truly brought the party back to basic, bread-and-butter issues: size-of-government issues are unquestionably its key concern.

But read here about how “With the smug incomprehension in which it takes so much pride (can’t understand – won’t understand!), the BBC sets about the American Tea Party Movement as if it were a cross between the Klu Klux Klan and the German neo-fascist brigade.” The same could be said for MSNBC, or course.

A  footnote to David’s post on the hysterically anti-gay, and anti-limited-government, 2010 Texas Republican Party Platform:
 
“Joe My God” characterizes the platform as “tea-bagger influenced.” I’ve been doing a deep dive on the Tea Party, and this seems wrong, and another example of a knee-jerk anti-Tea Party reflex that will do gays no good at all.
 
When I talk to Tea Party people, they are firm on eschewing the social issues, which they regard—rightly, imho—as snares and delusions that Republican politicians have used to distract conservative voters from GOP complicity in ever-expanding government. Tea Partiers tell me they have wised up to the fact that politicians use the social issues to divide the country and empower themselves.
 
I talked to three leaders of the Dallas Tea Party, and they were very much on that page. Typical comment (from a Dallas TP leader): “We do not touch on social issues. We believe the biggest danger to our country is the fiscal irresponsibility that’s going on in Washington.”
 
And I was pointed to this interesting fact: Tea Partiers recently kicked out a Schlaflyite culture warrior as state party chair, replacing her with a fiscal-conservative lawyer who de-emphasized social issues. In fact, this was done at the very same state GOP convention that adopted the rabid anti-gay platform—which apparently was recycled from 2009.
 
So the real story seems to be, if anything, a swerve toward the libertarian branch of the Texas GOP (though this article sez it’s too early to be sure).

I don’t know much about Texas state politics, but the more I see of the Tea Party, the more convinced I am that it is good for gays, not because it is pro-gay (its members are mostly socially conservative) but because it is anti-anti-gay. To whatever extent they succeed in shredding the overdrawn “moral values” political credit card, more power to them.

Stephen Miller barely scratches the surface of the shift in support for same-sex marriage.  While there is no doubt that full marriage equality gets more popular with each passing year, some of that support bubbles up from the marriage-lite group, which is, itself increasing.

In fact, the only segment of the population that is getting smaller with time is those who don’t want same-sex couples to have any legal recognition at all.

That fact could not be more important.  Marriage is, and always has been, the simplest and most fair of all the political solutions to the problem of the law’s blindness to the existence of same-sex couples.  Up until the middle of the 1980s when Berkeley and West Hollywood became the first government entities in the nation to pass laws formally and explicitly recognizing same-sex couples, same sex relationships were invisible in the law, and to most people incomprehensible.  Domestic partnerships, reciprocal beneficiaries, civil unions and other separate but (roughly) equal relationship categories are political compromises.

I don’t prefer compromises, but what I like less is the status quo (in most states) where same-sex couples have no legal rights at all.  That’s why I’ve been supportive of marriage-lite for about twenty-five years.  Marriage is (as conservatives say), the ideal I think we should fight for, but when the chips are down, sometimes it’s better to settle for something rather than nothing.  A whole lot of people just don’t like the idea of homosexuals existing, much less having the government acknowledge their sinfulness and lack of good breeding.

But the ranks of people who think that way are thinning.  It is harder and harder to dismiss a homosexual coworker, family member, politician or even a popular celebrity from television, movies or sports, as some kind of heterosexual-gone-astray.  Even the Republicans, a party whose brand includes resistance to any rights for homosexuals, are beginning to see the façade of homophobia developing cracks.  If you believe there really are people who are homosexual, does it make any kind of sense to think they won’t fall in love with someone, won’t want to share their lives with someone, maybe raise children together?  Is that so terrible?

A large majority of heterosexuals don’t think so.  And compromise is the least the law can do.

But does the constitution’s equal protection clause permit compromise?  Is equality a negotiable promise?  That is the question at the heart of the Prop. 8 case.

Ideologically, I think not.  But constitutional opinions, with all their pages of reasoning, are seldom free of wiggle room.  Even the most absolute-sounding of constitutional rights (“Congress shall make no law . . . abridging the freedom of speech. . . “) have footnotes and disclaimers.  Federal judges are theoretically independent of the political realm, but they all breathe the same air we do.

As I said in an earlier post, Ken Mehlman and Karl Rove took most of our political options away when they urged states to amend their constitutions to prohibit same-sex marriage and, in many cases, any other legal recognition of same-sex couples.  That political decision prematurely forced the issue into the federal courts, because that is the proper forum for a determination of whether a state constitution violates the federal charter.  They could have made their crusade less consequential if they’d deployed their torches and pitchforks on statutory prohibitions, but it was constitutions they decided on, so it’s now fully a federal issue.

That leaves compromise in the hands of federal judges.  And despite the doomsayers, there are ways for federal judges to effect compromise.  The most effective is stalling.  The Ninth Circuit could both uphold and overturn Judge Walker’s opinion, saying that same-sex couples are entitled to equal protection, but that there is an inadequate record in the case on whether domestic partnership is fully and constitutionally equal to marriage. This is certainly a question that came up at trial, but as I mentioned, judges can sashay with the best of the politicians if they need to.  It’s a bit unseemly, but you’d be surprised what contortions black robes can conceal.

Californians were not voting on a compromise proposal; Prop. 8 was about full marriage rights.  It did not affect domestic partnership, and if it had removed that compromise, it is extremely unlikely it would ever have passed.  That political fact will inform any decision from the federal courts.  No matter what the court decides, it is extremely unlikely that we will get a lowest-common-denominator opinion.  It is no small majority any more who think that same-sex couples are entitled to no rights at all.  Even the most politically immunized judge will not be ignorant of that fact.

Nor will he or she be insensitive to the fact that it was not lesbians and gay men who abandoned the political process, but very high ranking Republican politicians who chose, in their wisdom, to throw this political hot potato into the federal courts.