IGF CultureWatch

As the Obama machine gins up its political blood libel accusing the anti-tax, pro-limited government Tea Party movement of being racist-despite lack of evidence-the Washington Post, to its credit, takes note of "the strong libertarian strains within the tea party movement," as evidenced by its refusal to join social conservatives in condemning same-sex marriage. In fact, the paper reports that following the Massachusetts' district court ruling finding sections of the anti-gay Defense of Marriage Act unconstitutional:

The large tea party-affiliated organizations, including FreedomWorks and the Tea Party Nation, declined to comment on [district court judge Joseph] Tauro's ruling because of their groups' fiscal focus. "That's just not something that's on our radar," said Judson Phillips, founder of the Tea Party Nation. He acknowledged, however, that some in his group-though not a majority-are opposed to the Defense of Marriage Act.

The situation is perhaps different in South Florida, where [Everett Wilkinson, state director for the Florida Tea Party Patriots] said "several hundred" of the group's supporters are gay. "Our stance might be different than someone who's in Oklahoma," he said.

More. If you're a Facebook person, this Gay Tea Partiers Facebook page has 124 members to date. (Update: now 132 members, and counting.)

Furthermore. Some of the comments have already turned to discussing the Obama Justice Department's refusal to prosecute members of the New Black Panther Party for voter intimidation (against those they call "crackers") in Philadelphia during the 2008 election, as Deroy Murdoch writes about here.

Another great piece by Jack Balkin, this time laying out six possible scenarios for same-sex marriage in light of the district court decisions from Massachusetts.

Again, Balkin is primarily concerned with the political implications of constitutional decisions, and again he is absolutely on target. Lesbians and gay men don't, unfortunately, have the luxury of viewing their constitutional right to equality simply as a guarantee. It comes, if it comes, with political strings attached, and those strings are directly controlled by archaic but still potent misunderstandings about what homosexuality is.

In the end, Balkin makes lemonade out of the lemon of a potential U.S. Supreme Court decision upholding Section 3 of DOMA, the one that prohibits the federal government from giving any sort of recognition to same-sex couples lawfully married in their own state of residence. A decision upholding Section 3 would take us out of the courts and put the action back where pure politics would suggest it ought to be - the states. He posits that in perhaps a decade we might be able to go from six marriage-recognizing states to twenty-six.

If that effort only involved getting legislatures to enact same-sex marriage (or civil unions; I'd be happy with civil unions as a political compromise), he might have a point. But this is where Balkin uncharacteristically misses an obvious and extremely important point. The legacy left to us by Karl Rove is a national landscape where voters actually changed their state constitutions - not just their statutes - to prohibit same-sex marriage. A protection for the minority against the majority was enlisted as a protection of the majority against that minority. Prejudice carried the day as a political tool to win short-term advantages. Generations of misunderstanding and ignorance were leveraged and elections were won. Those misunderstandings, that ignorance, have now been enshrined in state constitutions across the land as principles by which those states will govern themselves.

Certainly in some states like California, we can return the equality our state constitution guaranteed prior to Prop. 8 with a majority vote - though it won't come easy. Other states are not so fortunate. For them, the political battles for same-sex marriage will be uphill and in the snow.

It's easy to talk about the virtue of political action. But if there ever was a situation where the ordinary constitutional rules have been disregarded or turned utterly upside-down, where constitutional protections have been torn up and thrown away, same-sex marriage is that case.

In that context, then, the political reaction to a federal court victory is something I fear a bit less than Balkin and others. At some point we need to stand up and say that the principles and plain words in our constitution actually mean something. Damage has been done to the ideals we jointly established for our democratic republic. The equal protection clause was put there for a reason. The equal protection clause was put there for this reason. Heterosexuals can minimize that in deference to politics. But sometimes -- now in particular -- lesbians and gay men can't.

James Kirchick takes note in the Wall Street Journal that:

Earlier this month Madrid celebrated its annual gay pride festival, reputed to be the largest in Europe. It featured the usual mixture of calls for tolerance, righteous political speechifying, and raucous display of sexuality. But the Spanish capital also earned a dubious distinction this year not for anything it included, but for what it excluded: Israel.

The municipality of Tel Aviv had originally planned to sponsor a float in the Madrid parade. But Spain's Federation of Lesbians, Gays, Transgenders and Bisexuals revoked the invitation following Israel's raid on the Gaza flotilla that ended with nine dead pro-Hamas activists.

Israel is the only Mideast country that respects the rights of gay people. As Kirchick observes: "Saudi Arabia beheads gays. Syria arrests them in sting operations. Iran hangs them from cranes in public squares.... As for Gaza, one of Hamas's leaders has referred to gays as 'a minority of perverts and the mentally and morally sick.'"

There's an old saying that bosses pay employees just enough so they don't quit. The same is true about politics, in that parties give their coalition blocs just enough to keep them onboard. If you don't play hardball, you don't get much.

San Francisco's Bay Area Reporter relates that:

Congresswoman Jackie Speier put a damper on hopes for swift House passage of the Employment Non-Discrimination Act [stating] she doesn't see the LGBT workplace protections becoming law anytime soon. Addressing the crowd of gay and straight political and community leaders at Sunday's Alice B. Toklas LGBT Democratic Club Pride breakfast, Speier said, "Speaker [Nancy] Pelosi is doing all she can to ensure a majority for next year so we can pass ENDA."

Get that? Despite the big Democratic majorities in Congress that are certain to shrink after November, give us your votes and money and maybe next time round. Got to love the moxie, right?

Leaving aside the debate between gay progressives and libertarians/conservatives over whether ENDA is actually a good idea, the political reality is that its supporters can't sue through the courts to achieve protected-class status in the workplace. It's legislation or nothing. The same isn't true of overturning "don't ask, don't tell" and the Defense of Marriage Act, however. Which is why the White House and congressional Democrats can't simply announce that action will be delayed until after gays pony up their votes and dollars for the next election cycle. And the next. Or can they?

The L.A. Times reports:

Gay veterans organizations say the questionnaire sent to 400,000 military personnel will produce skewed results on the potential effect of repealing the ban on openly gay service members.

Most of the criticism focused on a handful of questions in the lengthy survey related to whether unit readiness would suffer and the extent of concerns among service members about sharing housing, bath facilities and attending social functions with gay and lesbian personnel.

Critics of the survey note it doesn't ask about the effect on unit morale or readiness due to the current policy of discharging troops found to be gay. The Servicemembers Legal Defense Network, which provides legal help to those discharged under the current law, recommends that troops not participate in the questionnaire.

Meanwhile, Politico reports:

Next week, a lawsuit brought by the Log Cabin Republicans is going to trial in California-and Obama's Justice Department is in the uncomfortable position of trying to prevent the "don't ask, don't tell" policy from being overturned as discharged veterans testify about its dramatic impact on their careers.

Some gay rights activists who were cheered by Obama's decision in May now say they're frustrated by what feels like a two steps forward, one step back approach to the issue-especially in light of Obama's delay in seeking to repeal of the policy in the first place.

Gay legal advocates "note that from time to time, [the Justice Dept.] has refused to stand behind laws under challenge as unconstitutional," but instead will fight in court to defend don't ask, don't tell. I'd add, just as they'll fight in court to defend the Defense of Marriage Act in the Massachusetts' case, discussed below.

More. Nate Silver at FiveThirtyEight.com says that a key portion of the Department of Defense's troops survey "is fairly useless" in that it "measures the relationship between gossip and unit morale [more] than anything having to do with homosexuality per se" and "goes out of its way to avoid asking the troops about something which is arguably more relevant and which is certainly more measurable: their opinions about DADT."

The national Log Cabin Republicans, encourage servicemembers to complete the survey, arguing "Not doing the survey abdicates terrain to those who want to keep DADT in place."

Jack Balkin has an excellent column on the DOMA decisions from the federal court in Massachusetts. He makes the best case I've seen for an appeals court to overturn them.

But his argument is not so much a legal one as a tactical one. He says, in the first paragraph, "I believe that federal and state laws that discriminate against same-sex couples violate equal protection of the laws. But I have no faith that the Supreme Court will agree with me for many years."

This is the dilemma - and the frustration - that gay marriage proponents crash their skulls against every day. Of course the equal protection clause means what it says. Lesbians and gay men are citizens, too, and unlike virtually any other specified class of citizens in the modern world, they are called out in specific laws to be denied rights that the majority takes for granted for itself. The equal protection clause was designed to address exactly this kind of injustice by the majority against a very small minority. There are very, very few respectable legal professionals in this country who do not see that simple and blindingly obvious fact. Court after court after court finds our arguments to be persuasive and even compelling.

The Massachusetts decisions are newsworthy only in that they are from federal rather than state courts. That changes the staging of the problem, but that makes a big difference. Balkin's concern is not with the ultimate justice of gay equality, only its timing for the nation as a whole. It is too soon for marriage equality to be recognized by the federal courts. Some day it will. Some day it must. But the nation isn't ready for it yet.

He may be right about that. This is certainly the heart of Jonathan Rauch's position. Gay marriage, gay equality is inevitable. Also inevitable is the backlash a premature court ruling would create. Let gay marriage play out in the states first. It's too soon for too many. Let folks get used to it.

The constitution guards against inequality, but it does not guard against political firestorms. And the political firestorms over gay marriage have amended constitutions, themselves, to specify inequality for homosexuals, or to prevent such equality from ever even being declared. The tradition of discrimination - or, perhaps more fairly, the tradition of homosexual invisibility among heterosexuals - is too strong. Too many people are just not used to there being homosexuals who aren't ashamed enough of themselves to hide or remain decently silent.

But a lot of homosexuals - and extremely powerful heterosexual supporters like Martha Coakely and David Boies and Ted Olson - are willing to take the risk. Homosexuals aren't going back to the closets, and the injustice Americans could always blind themselves to before is now out in the open all across the nation. It's been a quarter of a century since domestic partnership first found its way into the law, and seventeen years since the Hawaii Supreme Court decision in Baer v. Lewin. Maybe the time is right.

Balkin and Rauch have a respectable political point, and they have 30 state constitutional amendments as pretty strong evidence on their side. But the rest of us have a point, too. Maybe each of those federal court battles, and each battle over a state court decision, and the battles over hate crimes laws and Ellen Degeneres and Brokeback Mountain and Prop. 8 and Don't Ask, Don't Tell and the Today Show's Wedding Contest and Tinky-Freaking-Winky are having their effect, are eroding that rock of silence that we were hidden behind for so many generations. Maybe this is the time.

It is now our heterosexual opponents who want to hide, while still availing themselves of political appeals behind the walls of TV commercials and sermons to the converted. They deeply believe themselves to be right, and are not used to having to defend themselves. But as David Boies so eloquently pointed out, lectures and soundbites full of the convenient arguments from unexamined tradition are having a hard time standing up to scrutiny: "In speeches, no one gets to cross-examine them." Courts have to go further and further out of their way to find reasons to uphold marriage laws that are flatly, facially and glaringly unjust to homosexual citizens.

That is certainly why we win in courts of law, and have been losing in the political arena. Voters never have to explain themselves; courts always do. And that is why Maggie Gallagher and her partners in this modern crime continue to threaten "activist judges" and those of us with the temerity to argue from justice rather than politics. "We still have politics, we still have prejudice," she implicitly threatens, not incorrectly.

Balkin offers an honest and respectful legal argument to solve a political problem that happens to manifest itself in the courts. But his extraordinary effort shows how hard it is today to patch over the shabby excuses for not reading the simple words of the constitution plainly.

Winston Churchill famously said in November 1942, when for the first time Nazi forces were pushed back in North Africa, "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

The ruling by a federal district court in Boston finding unconstitutional the worst aspect of the federal Defense of Marriage Act (DOMA)-the section prohibiting the federal government from recognizing same-sex marriages that are recognized by the states in which the couples reside-also signals an "end of the beginning."

As 365gay.com reports, "Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married." In a related case, "he ruled that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment."

The rulings do not force every state to validate same sex marriages, nor even for states to recognize same-sex marriages performed elsewhere. They do require that the federal government recognize marriages where they are recognized by the states in question. That's a common sense approach that allows cultural and political evolution to move forward through the states without triggering a political backlash that could result a draconian federal amendment voiding all same-sex marriages.

The district court's ruling will be appealed by the Obama administration to an appellate court, and then to the U.S. Supreme Court. It will take years. But the signs point to an eventual end of federal discrimination against same-sex couples.

More. The New York Times looks for tea-party types who talk about states' rights but don't like Judge Tauro's use of the Tenth Amendment-and can't find them. They find even tea partiers who oppose gay marriage saying "The Constitution does not allow federal regulation of gay marriage just as it doesn't allow for federal regulation of health care."