IGF CultureWatch

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.

Do you think opponents of gay marriage are reaching a bit to make their points? Check out this commentary Why Young Black Men Don’t Graduate in the Washington Times. It’s by Janice Shaw Crouse, executive director of Concerned Women for America’s Beverly LaHaye Institute. She writes:

A new report from the Schott Foundation reveals that just 47 percent of black male students earn a high school diploma on time. Ironically, this report came out shortly after Judge Vaughn R. Walker ruled on Proposition 8 and homosexual marriage in California. If the statements on which Judge Walker based his ruling are “facts,” how do we explain what is happening educationally to boys in the black community, where a large majority are growing up without fathers?

Of course, Judge Walker might well agree that having two parents is better than one for raising children. But the points he made (and which Crouse quotes) were different ones, that “The gender of a child’s parent is not a factor in a child’s adjustment” and that “Having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.”

Crouse twists and spins to make the same old argument that allowing gay people to marry is an assault on the heterosexual family unit, and that the absence of fathers in black homes leads to underachievement by young black men. So, ipso facto, Judge Walker’s ruling that gay people have a constitutional right to marry is so bad it’s keeping young black men from graduating!

Ross Douthat tries a new(ish) argument against gay marriage. John Corvino takes it apart. Same problem as always (sigh). Just saying marriage is good for this or that straight need doesn’t show it can’t accommodate gays as well.

Look, guys. Let’s say it’s a given that shirts were designed for people with two arms. Great! So does that mean one-armed people should be forbidden to wear shirts? That one-armed shirt-wearers will somehow wreck the ideal of shirtiness, and we’ll lose the very concept of the shirt?

Let’s say mouths were invented for eating. If not for eating, there would be no mouths. Great! So should we forbid the use of mouths for talking, lest everyone get too confused about what mouths are really for?

That kind of argumentation wouldn’t get past a high-school logic teacher. Yet it remains a commonplace in the gay-marriage debate. Sometimes I wonder whether SSM opponents would have anything left to say without it.

Corvino puts it well (but read the whole thing):

In order to make his position plausible, Douthat would need to show that the stakes are so radically different for gays or lesbians that any form of marriage that includes this small minority can no longer do the requisite work for (fertile) heterosexuals.

But at this crucial point Douthat’s argument becomes hopelessly vague. He simply asserts that extending marriage to same-sex couples would weaken its ability to address the thick “interplay of fertility, reproductive impulses and gender differences in heterosexual relationships,” but he never explains why or how this would happen.

This is not an argument: this is a panic.

I obviously disagree with Ross Douthat’s conclusion that homosexuals should not be allowed to marry one another. He is responding to Andrew Sullivan on this point, and unfortunately published the first part of his argument while Andrew is incommunicado, on a spousally-imposed break from blogging. Gay marriage really does have some of the same downsides as straight marriage . . . .

But Andrew will certainly be back, and in the interim I want to make a non-obvious point. Twenty-five years ago when I first began working on the rights of same-sex couples, it was virtually impossible to find a heterosexual – and particularly a heterosexual male – who would so much as engage the conversation, much less take the time to write thoughtfully and publicly about it. There were a few (mostly very liberal) politicians who would uncomfortably express support, maybe shake my hand, and then hurry off to attend to some other very important matter. Trying to get conservatives to exchange views was pretty much impossible.

Today, Douthat is only one of the many conservatives who are now quite comfortable giving their time and attention to this issue – one of the thousands of issues available for writers to address – and sharing his thinking.

It’s easy for those of us who have been working on this issue nonstop for decades (i.e., lesbians and gay men, to whom it is of enormous if not transcendent importance) to find obvious flaws in the reasoning of people who are only recently coming to the discussion. Douthat proposes a long-discredited approach to recognizing same-sex couples, which requires not recognizing them as homosexual couples – we would be entitled to relationship rights by categorizing us with elderly sisters and good friends and anyone else who can’t get married but wants some government benefit or another.

Over the years, both Andrew and Jonathan Rauch have explained the serious problems to marriage that this kind of “marriage lite” causes. Dale Carpenter, John Corvino, David Boaz and hundreds of other gay writers, academics and backseat drivers like myself have also had a thought or two to contribute over time. This supposedly non-discriminatory status is not a new idea. I’m sure Douthat does not mean to be condescending to same-sex couples in offering it, but it is a condescending notion all the same.

Still, he is wrestling with the issue of equality openly and in good faith. I would like to see if he believes his position stands up to the existing criticisms of it, and perhaps he will engage that debate. If he has new responses to Rauch and others, that would be welcome.

In the end, though, I think it is Peter Suderman among conservatives who has it right. What underlies opposition to same-sex marriage is an intuition, and ultimately nothing more. It is a powerful intuition, but in America, our laws have to be based on something more tangible. Suderman looked behind the intuition, tested it against the arguments offered against it, and concluded that the arguments for equality were more persuasive than the intimations and fears against it.

I hope that is where Douthat is able to come to some day as well. I think, in the end, it is the right, just and moral conclusion. But wherever Douthat winds up, he deserves our thanks for trying, with an open mind (I believe) to understand what it is we are saying.