IGF CultureWatch

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.

From the Washington Post: Same-sex marriage gains GOP support.
Some of this is wishful thinking. Yet there is undeniably a shift occurring on the right as more limited-government (or at least anti-gargantuan government) conservatives come out and make the big-tent case that social issues are divisive. If they (we) become dominant, it will be the worst of all nightmares for the power-seekers of the command-economy redistributionist left.

The more we can change the perspective that gay equality is part and parcel of the broader and increasingly unpopular “progressive” agenda, the better placed we’ll be to wage the fight for legal equality after the Tea Party empowered GOP regains one or both houses of Congress this November, and then the presidency in 2012.

More. Washington Blade editor Kevin Naff takes aim at the LGBT anti-corporate activists who have targeted Target Corp. stores. He writes:

Locally, you’d be hard-pressed to find a prominent Maryland or Virginia Democrat who supports marriage equality. But that doesn’t stop our lobbyists from working hard to elect them. And re-elect them.

Why are we so quick to jump on a corporate boycott —even one targeting a high-profile gay-friendly business—yet when it comes to politicians, our advocates are just as quick to turn the other cheek?

Could it be that for many activists, it’s the progressive agenda (and its party) first?

Furthermore. From the New York Times:

[Paul] Singer a self-described Barry Goldwater conservative…has become one of the biggest bankrollers of Republican causes…. He is not new to fund-raising–he raised money for George W. Bush, Rudolph W. Giuliani, the Swift Boat Veterans for Truth and, surprisingly, gay rights initiatives. …
Singer plans to hold a fund-raiser next month at his Manhattan apartment in support of the California lawsuit opposing Proposition 8, which banned gay marriage. Ken Mehlman, a former top Republican official who said this week that he was gay, will be one of the co-hosts.

Which is why things like Mehlman coming out are important; it’s part of the trend of more conservative money and support for gay legal equality. But instead of celebrating, LGBT progressives are fuming.

Still more. How big is the GOP tent? An online debate over at the New York Times.

I am as conflicted as most lesbians and gay men about Ken Mehlman’s coming out.  I am always glad to see more openly homosexual members of the Republican Party, and Mehlman, as a former party chair and George W. Bush’s campaign manager in 2004, has more than a passing presence among party regulars.  I hope his newfound self-awareness can move more members of his party in a better direction on gay equality.

But it’s every bit as true that he presided over a party that did real damage to gay equality.  He says he was not aware of his own sexual orientation during the time the party he was helping to lead was exploiting the religious right’s fears and misunderstandings about homosexuality in order to get more of them to the polls to vote for candidates who proudly claimed the flag of their heterosexuality under the rubric of a vague morality.  I’ve never met Mehlman and can’t prove he is wrong about himself, and I am content to accept his statement at face value.

On the other hand, that’s not much of an excuse.  It presupposes that the only Republicans who might have opposed the GOP’s anti-gay tactics were homosexuals with an interest in protecting their own rights.  But every reader of this site knows heterosexual Republicans who both opposed the GOP’s strategy and spoke up against it.  What Mehlman saw going on in his party was wrong whether you’re straight, gay or (as the kids say) questioning.

Mehlman has now dedicated himself to fighting for marriage equality, and I say welcome to the battlefield.  But we should all acknowledge that it is Mehlman and his party that set the stage.  We have to deal with all those new state laws, urged on his watch, prohibiting same-sex marriage and (in many states) even civil unions.

But they’re not just laws; most of them are constitutional amendments.  The GOP, under Mehlman and Karl Rove and George W. Bush, worked behind the scenes with state leaders, not just to pass laws prohibiting gays from marrying one another, but to elevate that rule to a principle of governance, on the same footing as due process of law, checks and balances, personal liberty and probable cause to search your home and seize your possessions.

At the very moment when the tide of anti-gay prejudice was beginning to turn, Mehlman and his party convinced voters to freeze the polls in place in state constitutions.  The state-by-state strategy so many gay leaders were supporting was short-circuited.  That was a successful political tactic, and it is the legacy of the GOP of that time.

Neither Mehlman nor even his party is solely responsible for the outcome, but Mehlman will be joining us in sorting out a mess that (whatever else can be said of it) is not attributable to the Democratic Party.  Seeing the inevitable cultural change coming, and seeing short-term political advantage, Mehlman’s GOP made sure that legal change would be doubly hard to accomplish using normal democratic means down the road.

I am glad Mehlman is now on the side of equality.  But the Catholic in me can’t help thinking that for his penance, he should be assigned a leading role in countering the false and misleading claims by offended voters that gays are misusing the court system by invoking the superior federal constitutional right to equal protection of the laws.

The Atlantic has a big story on former Republican National Committee Chairman Ken Mehlman coming out and saying he wants to become an advocate for gay marriage. The Log Cabin Republicans issued this statement. But not everyone is so welcoming. Says blogger (and outer) Mike Rogers, “Ken Mehlman is horridly homophobic and no matter how orchestrated his coming out is, our community should hold him accountable for his past.”

Bush’s support during the Mehlman years for a constitutional amendment banning gay marriage everywhere  in the U.S. was unconscionable, and I suspect Mehlman went along with Karl Rove, rather than being the instigator. Hold him accountable if you like. Other issues Mehlman is being targeted with helping to oppose include a federal hate crimes statute that includes gays and transgenders (now passed and signed by Obama) and the Employee Non-Discrimination Act (ENDA), which remains blocked in the Democrat-controlled Congress (despite enough GOP support to preclude a filibuster). There are plenty of principled gay libertarians who are against both these initiatives and they are not “anti-gay.”

If someone opposes legal equality, that is an issue. Failing to embrace the use of state power to supposedly make life better for gays is a debatable matter on which reasonable gay people can and will disagree. So on those initiatives, I’d cut Mehlman some slack.

If he now uses his influence to help change the GOP’s opposition to gay marriage, it would go a long way toward making amends.

More. John Aravosis blogs:

I hope someone at the DNC is starting to sweat. We now have the former head of the Republican party who is to the left of Barack Obama on gay marriage. There’s a virtual groundswell of senior Republicans coming out for marriage equality. It can’t be going unnoticed in the gay community. And while it doesn’t mean 70% of the gay vote will now go Republican instead of Democrat, it does mean that growing numbers of gays and lesbians will starting thinking of the GOP as a legitimate alternative to the Democratic party.

That’s a mite optimistic, but if the trend continues…. And it will be the only way to stop the Democrats from viewing gay voters as nothing more than a spigot for campaign dollars and volunteer labor.