IGF CultureWatch

Jonathan Rauch's op-ed for the NY Times has caused quite a stir among gay bloggers (like Joe.My.God and Calitics) and, worse, has gotten him the support of Maggie Gallagher. But Jon makes a fundamental point that most people of the left are ignoring or understating, and those on the right are exploiting. In order to understand Jon, it helps to understand Linda Lingle.

Hawaii's Governor Lingle prominently vetoed a civil unions bill yesterday. In her mind, civil unions are just "marriage by another name," and since she opposes same-sex marriage, she was inclined toward the veto. But she took the time to listen to supporters for both sides, and in the end decided that this was not something elected representatives should be deciding. Marriage is so profoundly important that only the people have the right to decide its form.

The problems with this reasoning are obvious to lesbians and gay men, and to an ever-increasing number of heterosexuals. Giving an overwhelmingly large majority the ability to decide on or deny the rights of an extremely small minority can be problematic if the majority harbors prejudices and even misguided passions about that minority. That's not always true, but it's exactly the problem the constitution's equal protection clause was designed to guard against. Under our constitutional system, there are some decisions that even the largest majorities cannot make.

Lingle's failure to even mention the potential of an equal protection problem was more politically convenient than it was an accurate description of the legal landscape. While she made every effort to present herself as having made a neutral decision, she betrayed herself in what she left out. Equality is the very thing the legislature in her state was trying to achieve, and she could not bring herself to address that core injustice.

In fact, the apparently neutral appeal to the people's right to vote is nothing more than an appeal to what prejudice against homosexuals still exists. It is a way of reinforcing the status quo and cementing it in place at exactly the time the status quo is drifting toward a more just equilibrium.

That is the responsible criticism of Jon's piece. In a representative democracy, courts can and should be modest about their role, and overturn statutes (whether passed by legislatures or voters) in only the most rare cases. Court decisions that contravene the very strong will of a majority can and will be overturned, and if that requires amending a constitution, well that is not unheard of.

No one should know that better than lesbians and gay men. Not only have voters in thirty states amended their state constitutions to prohibit same-sex marriage, most all of them did it preemptively. In that context, Jon is not exactly going out on a limb in thinking that a decision from the U.S. Supreme Court mandating same-sex marriage in all fifty states would not go over well among the American public. There is a very specific political risk to us if the court makes the right constitutional decision. That's not a very idealistic state of affairs, but it's foolish to ignore it. Jon is not foolish.

But Jon's argument is a bit narrow because he focuses on the California case of Perry v. Schwarzenegger. When he says that the voters may have made a reasonable decision on Prop. 8, he's talking about a state where we have comprehensive domestic partnership rights for all same-sex couples. Prop. 8 did not change that. It was no less the reaffirmation of a fatuous and anachronistic view of homosexuals, but in California, the legal inequality of same-sex couples is at the margins. That's still wrong, and in my view still unconstitutional. But Jon's point remains a critical one. Too broad a decision from the U.S. Supreme Court could spark a backlash that would gladden the blackened heart of Karl Rove.

In contrast, Gov. Lingle's decision highlights what inequality looks like for same-sex couples in too much of the rest of the country - including Jon and his husband in Virginia. Not only are they barred from marriage in the state where they live, the law prevents them from having virtually any recognition of their relationship.

When she equates civil unions with marriage, Gov. Lingle leaves lesbians and gay men with no option but the constitutional one, no equality but what the constitution demands. In effect, she dares the courts to defy the voters, or dares the voters to defy the constitution itself. Hawaii's legislature attempted to provide a compromise, and she took the compromise off the table.

That is the political game the left thinks we shouldn't have to play. I can't disagree with that. But we can't wish away that reality. Courts or no courts, we still have to work for our equality. Jon can't be faulted for saying that out loud.

"Campaign Spot" blogger Jim Geraghty writes in "For Better or Worse, the NRA Grades Candidates on Only One Issue" that some conservatives are miffed that the National Rifle Association looks likely to endorse the re-election of Sen. Harry Reid (D-Nev.), the senate majority leader and co-instigator of the Obama-Pelosi-Reid mega-government agenda.

As commenters to IGF has pointed out, the NRA is a nonpartisan organization focused on one issue-second amendment rights-and it supports conservatives or liberals who concur with it, which is one reason it's been so successful.

There really is no gay rights group that's comparable. The big Washington LGBT lobbies-even the ones whose bylaws claim that they're nonpartisan (and who once-upon-a-time truly were)-now overwhelmingly define themselves as part of the "progressive" coalition. These groups haven't been shy about treating non-gay issues as part of formal or informal litmus tests for candidate approval (this has been true not just of the Human Rights Campaign but even groups such as the Victory Fund, which maintains a pro-abortion requirement that trips up openly gay, pro-life Republicans who might have benefited from its support).

The clearly partisan gay groups (Stonewall Democrats, Log Cabin Republicans, GOProud) have their own role, which is different. But it would be constructive to have even one major LGBT group that would endorse and fund liberals or conservatives, Democrats or Republicans, based just on whether they supported legal equality for gay people. You might even begin to see more conservative Republicans break away from their party's anti-gay party line, just as Harry Reid and several liberal Democrats have broken from their party's anti-gun rights stance.

Here's a link to Jonathan Rauch's New York Times op-ed, "A 'Kagan Doctrine' on Gay Marriage." If he's right, Justice Kagan's rulings may not be what LGBT activists expect.

Somewhat related. Columnist Steve Chapman at Reason.com looks at conservative angst over Supreme Court judicial activism and finds something surprising, in "How Republicans Made Their Peace with Sodomy":

When conservatives talk about judicial activism, they have in mind a variety of Supreme Court decisions-legalizing abortion, hindering the death penalty, allowing flag-burning, and preventing officially sponsored prayer in public schools. All these, they believe, ignored the plain words or the original meaning of the text.

But there is another decision that fits any definition of a liberal, activist approach. It came in a 2003 case, Lawrence v. Texas, involving two men who were prosecuted after being caught by police having sex in a private bedroom. ...

But after the initial denunciations, something odd happened: The decision vanished from public debate.

Roe v. Wade led to endless battles over abortion laws. The school prayer decisions have been defied in many districts. But once the sodomy laws were gone, they were forgotten. No one mourned them, and no one tried to bring them back.

Or virtually no one, as Chapman clarifies. His overall take: "maybe it's because they realize that laws trampling liberties most people take for granted can't be squared with the spirit of freedom and equality that defines the Constitution-even if the letter of the Constitution has nothing obvious to say on the particular matter at hand."

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

Read the Declaration and celebrate liberty!

The Drudge Report headline was "Google to Pay Gay Employees More than Straight Ones?," while Fox News online called its story "Google Raises Eyebrows With New Gay-Only Employee Benefit." In the Fox account, a spokesperson for Focus on the Family complains, "How is offering more money to only one group to offset a perceived inequity not a form of discrimination against those groups not fortunate enough to receive such bonuses?"

In fact, Google is paying to cover the income taxes the government requires on health coverage provided to employees' same-sex spouses/partners. The federal government requires no such taxes to be paid on the value of health coverage provided to opposite-sex spouses (thanks to the Defense of Marriage Act, the IRS can't recognize same-sex spouses). In other words. Google is ensuring that the take-home pay for employees with covered same-sex spouses is the same as that provided to employees with covered opposite-sex spouses.

Until the government recognizes same-sex spouses, private industry will continue to turn to this type of work-around in order to treat gay employees fairly, and to attract the talent needed to compete in the marketplace.

But if you want to talk about "unfairness," the people with a real gripe may be single employees, since (opposite-sex) married employees and employees with children have often been "paid more" than single and childless employees, in that U.S. employers traditionally subsidize the "family plan" health coverage employees purchase for their spouses and kids. But you won't see complaints from Focus on the Family, or headlines on the Drudge Report and Fox News, about that.

Equal time: The Democrats who control Congress rejected an amendment to their trillion-dollar health care "reform" that would have made the tax treatment of employer-provided health coverage for same-sex spouses/partners equal to that of opposite-sex spouses. But they did manage to placate the unions by passing special breaks for union-negotiated health coverage. Who's got the power? Not the LGBT lobby that provides its support unconditionally to the business-bashing party, that's for sure.

A split Supreme Court ruled in Christian Legal Society v. Martinez that the University of California's Hastings College of the Law can legally deny recognition and funding to a Christian student group that will not let gays join [clarification: would not let non-celibate gays be voting members or voted into leadership positions]. Neal McCluskey writes on the Cato Institute blog, in his post Having Public Colleges Means Limiting Freedom, that "Quite simply, when public universities decide which groups do or do not get taxpayer funds, and which professors are or are not hired, government is deciding those things, and that is ultimately incompatible with both free inquiry and, more importantly, a free society." Kind of like the endless pro-big government "progressive" narrative on government-funded PBS.

If Hastings were a private college, there would (ideally) be no issue with its deciding which groups to fund or not fund. A conservative religious school would chose to fund the conservative Christian group, and a liberal college wouldn't. With public institutions, or private institutions receiving government funding, the state gets to decide. Sometimes you and/or I will agree with those decisions, and sometimes we won't. But that's politics (i.e., who has got the power of the state behind them, at this time).

More. Justice Samuel Alito's dissent cites an amicus curiae brief filed in opposition to Hastings College of Law by Gays and Lesbians for Individual Liberty (GLIL). The dissent can be read here. GLIL is mentioned on page 29:

...the Court argues that the accept-all-comers policy, by bringing together students with diverse views, encourages tolerance, cooperation, learning, and the development of conflict-resolution skills. ... These are obviously commendable goals, but they are not undermined by permitting a religious group to restrict membership to persons who share the group's faith. Many religious groups impose such restrictions. ... Our country as a whole, no less than the Hastings College of Law, values tolerance, cooperation, learning, and the amicable resolution of conflicts. But we seek to achieve those goals through "[a] confident pluralism that conduces to civil peace and advances democratic consensus-building," not by abridging First Amendment rights. Brief for Gays and Lesbians for Individual Liberty as Amicus Curiae 35.

Furthermore. Cathy Young writes in "A Dangerous Precedent" at Reason.com: "How would people feel if, at a public university that happened to be dominated by religious conservatives, a gay-rights group was denied recognition because it refused membership to people who openly espouse anti-gay views?"

IGF contributing writer Dale Carpenter blogs at the Volokh Conspiracy site that a Minnnesota district judge denied a temporary restraining order sought by Twin Cities Pride (TCP) to prevent an anti-gay preacher from distributing literature and displaying signs inside the park where TCP has a permit for the annual gay pride festival.

A park is usually a public place, but apparently TCP is paying for the right to use the park to hold its festival. As one commenter over at Volokh asks, "If the Pride event must permit this anti-gay preacher access to their event, what stops hundreds of others from joining him and converting the Pride event into an anti-gay event?"

I think the U.S. Supreme Court got this one right when in 1995 (and in opposition to LGBT activists) it decided that the organizers of Boston's St. Patrick's Day parade (and, by extension, organizers of other parades) had a right to exclude a gay Irish group from their event. I disagree with the Paddy's Day parade organizers, but I think it was their right. Just as it is TCP's right to exclude from their event the anti-gay preacher.

More. Okay, a park is not a parade. To the extent that that pride event's area was not closed off, I'm willing to backtrack on this one.

Politico finds that leading religious right groups are not happy with their lack of influence over the tea party movement:

"There's a libertarian streak in the tea party movement that concerns me as a cultural conservative," said Bryan Fischer [of the American Family Association]...

The [Contract From America], sponsored by the grass-roots Tea Party Patriots as well as Washington groups such as FreedomWorks and Americans for Tax Reform, asks supporters to choose the 10 most important issues from a menu of 21 choices that makes no mention of socially conservative priorities such as gay marriage and abortion.

"People didn't come out into the streets to protest gay marriage or abortion," said [Brendan] Steinhauser [of FreedomWorks], who said that he hoped the Republican Party would follow the contract's cue and "stop bringing up flag-burning amendments and the gay marriage thing when they're not what people are focused on."

Meanwhile, the Village Voice takes a look at gay Republicans, and doesn't dismiss their efforts outright (stop the presses!).

Finally, as if to demonstrate the point, David Weigel at the Washington Post discusses GOProud's sparring with the Family Research Council (FRC), which takes the increasingly irrelevant view that marginalizing homosexuals should be priority number one. But by attacking groups such as the National Rifle Association and Americans for Tax Reform for working with gays, it's FRC that's marginalizing itself-and even LGBT progressives could agree that this is a positive sign.