IGF CultureWatch

The Obama administration is reinterpreting a federal law that requires employers to provide up to 12 weeks leave to a parent who needs to care for an ill child (or following the birth or adoption of a child), so that the law now covers nonparents who are "in loco parentis"-the legal term for people who act as parents but legally aren't. Because of the Defense of Marriage Act, this federally mandated benefit could not simply be applied to an employee who, say, is married or officially partnered to a child's biological parent or parent by adoption.

It's good that a gay parent in such a relationship now may be able to better care for his or her child, but mandating that employers provide this benefit so broadly opens the door to abuses by non-parents such as extended family members who claim to be in loco parentis but aren't. Employers now must investigate these circumstances in order to determine whether the employee's relationship with the child is loco parentis enough to qualify. That's loco.

Worse, while the federal statute in question, the Family and Medical Leave Act, also allows employees to take up to 12 weeks off to care for their ill spouse, the new interpretation applies only to a same-sex parent's caring for a child. It does not apply to same-sex spouses or partners who need to take the time off to care for each other.

Regulatory contortions and half-steps are better than nothing, but let's remember that this is a president who has shown no inclination for repealing or modifying the onerous Defense of Marriage Act, despite his campaign pledges. Those attending the White House announcement should temper their applause.

More. Richard Socarides, Bill Clinton's special assistant and senior advisor on gay rights issues (a position that doesn't exist in the Obama White House), is disappointed with the president. He writes in the Wall Street Journal (subscription required):

...despite a steady trickle of small steps Mr. Obama has taken to promote gay rights, on the big issues he is a disappointment....

The Obama administration's stance on gay marriage is especially troubling. In California, even Republican Gov. Arnold Schwarzenegger has refused to defend the constitutionality of Proposition 8, that state's antigay marriage law. Not so for the Obama administration on the federal version, the Defense of Marriage Act.

Attorney General Eric Holder and the Department of Justice not only have chosen to aggressively defend the constitutionality of that law, which bars recognition of same-sex marriages, but Justice Department lawyers actually cite it affirmatively to deny federal employee benefits like health insurance to same-sex couples....

In a telling development, the most significant and aggressive legal effort to promote gay equality today is being led by a conservative, former U.S. Solicitor General Ted Olson. In federal court in San Francisco, together with co-counsel David Boies, he is prosecuting the most comprehensive and sophisticated legal attack on antigay marriage laws in history....

When Mr. Olson's case reaches the U.S. Supreme Court in a year or more from now, will Mr. Obama be one of the few left on the wrong side of history? What a bitter irony that would be.

I suppose I should say something about the sniping that some supporters of GOProud, the newer, more conservative (and more party line) gay Republican group are engaging in against the Log Cabin Republicans (LCR). Basically, I think there is room for gay groups of a variety of political persuasions on the right/center right (just as groups on the LGBT left range from party line Democrats to far left-wingers).

As I understand it, GOProud's founders were critical that LCR would not endorse George W. Bush's re-election campaign in 2004 (after Bush endorsed the anti-gay federal marriage amendment). Log Cabin did endorse John McCain (who opposed the amendment) in 2008.

[Added: An e-mail received from GOProud states: "GOProud's founding has nothing to do with LCR's non-endorsement of Bush in 2004. ... we were founded because we believed there was a void in Washington. While there were lots of gay organizations, including Log Cabin, working on a narrowly defined list of 'gay issues' like ENDA or hate crimes, there was no organization talking about tax issues, social security reform, free market healthcare reform, etc. We are the only gay organization working on these conservative agenda items."

Perhaps, but some gay conservatives posting at GayPatriot are still fuming over Log Cabin's "refusal to endorse the only Republican in the Presidential Election of 2004."]

This year, GOProud endorsed former CEO Carly Fiorina's successful bid in the California GOP Senate primary against Tom Campbell, while LCR endorsed Campbell, a former congressman.

Campbell favors marriage equality for gay people, while Fiorina supported Prop. 8, which amended the California constitution to ban gay marriage (but allows domestic partnerships). GOProud and its allies (at GayPatriot, for instance), castigate LCR and argue Fiorina is more fiscally conservative than Campbell, but Fiorina has no public record to point to, just words. Campbell was a leading deficit hawk while in the House, but subequently while serving as Gov. Arnold Schwarzenegger's budget director supported a tax increase. The right wing of the party has never forgiven him.

On another matter, some GOProuders attack LCR for accepting funds from the Gill Foundation, which also supports activists on the LGBT left. But software entrepreneur Tim Gill seems to fund a variety of groups working for gay equality, and LCR's acceptance of his money does not make them part of the left or the foundation's puppet, as some charge.

And then there was this year's GOP primary for Viriginia's 8th congressional district (Arlington/Alexandria), where openly gay Log Cabin member Matthew Berry, who served in the Bush Justice Dept., lost to Iraq war veteran Patrick Murray. It is not true that the national Log Cabin organization supported Murray, as some assert. But it is true that the new executive director of LCR, Iraq War veteran R. Clarke Cooper, did endorse fellow-vet Murray before accepting his position at LCR. Subsequently, he withdrew that endorsement. Murray's campaign sent out mailers playing up Berry's support for gay rights (misleadingly so, because in fact Berry favored waiting for the military to complete its review of don't ask, don't tell before taking action, and felt states should decide the gay marriage issue).

The local Log Cabin club of Northern Virginia gave support to Berry and criticized Murray's playing of the gay card (as I noted here). LCR national responded to the charge that the organization supported Murray, here.

Having Tom Campbell in the Senate would have been an important advance for those within the GOP who support gay legal equality, as I wrote, so I was with LCR on that one. But I think LCR's Cooper stumbled badly with his initial endorsement of Murray over Berry in the Virginia House race. Still, I'm willing to give him a chance to recover. LCR has many loyal members who want to support Republicans who support gay rights, and the organization has an important role to play.

It might be too much to expect GOProud and LCR to carve out their own niches and for their supporters to otherwise get along, but that would be a more constructive approach for them to take, especially as it seems highly likely that the GOP will make major congressional advances in November. We'll want, and need, to have our voices (plural) heard within the party.

More. There are a great many claims and counter-claims going on between Log Cabin and GOProud (and GayPatriot, whose founder and co-blogger, Bruce M. Carroll Jr, is a GOProud board member). But I trust my friend David Lampo of Log Cabin's Northern Virginia chapter, who left this comment at the GayPatriot site (it's followed by Bruce Carroll's response).

Charles Cooper, meet Alvin Greene.

Most politically active lesbians and gay men know Charles Cooper is one of the chief lawyers representing the folks defending Proposition 8 in the Perry v. Schwarzenegger trial. Cooper delivered his side's final arguments this week. He strenuously overargued the case, saying marriage is "fundamental to the survival of the human race. Without the marital relationship, society would come to an end."

The pretty unflappable Judge Vaughan Walker couldn't but observe - perfectly accurately -- that Cooper hadn't presented any evidence for that proposition, and Cooper responded, "You don't have to have evidence of this."

Those eight words contain the essence of how courts differ from the everyday politics we are far more accustomed to. Cooper was speaking as if he were running Alvin Greene's campaign.

Greene, this week, definitively won the South Carolina Democratic primary to face Jim DeMint for DeMint's seat in the U.S. Senate. The thing is, no one really knows who Greene is, or what he might stand for, if anything. He's a 32-year old, unemployed Army veteran who paid the South Carolina filing fee, got his name on the ballot, and without any campaign whatsoever, defeated someone who actually ran for the seat, securing 59% of the democratic party vote.

Theories and speculation abound, but the bottom line is this: It appears South Carolina's voters just picked him at random; his name came first on this part of the ballot.

And here's the point: In an election, voters can cast their ballot for good reasons or bad reasons or no reasons at all, and their vote counts just as much. The state democratic party searched hard for some reason to disqualify Greene, but he played by the few rules there were. Having done that, the voters had their say, and the fact they seem to have chosen someone nobody knew for reasons no one can discern makes no legal difference whatsoever.

The constitution does not require anyone to have a reason when they vote for a candidate. But when it comes to passing laws, the constitution does have something to say. The standards are sometimes quite strict - neither legislators nor voters can enact a law restricting free speech or the free exercise of religion - and sometimes they are relaxed to the point of torpor.

That's one of the most important questions in Perry. The court will have to decide whether a law quite explicitly targeted at lesbians and gay men is entitled to some form of heightened scrutiny under the constitution's equal protection guarantee. But even if it's not, the constitution says that the law has to at least have a rational basis.

In his response to the judge, Cooper seems to be confusing elections for candidates with elections to change the law. Voters didn't have to have any reasons at all to vote for Alvin Greene, but (like legislatures) they have to at least have something in mind - something rational - when they pass a law; and the standard may just be a bit higher still when they pass a law that discriminates against a specific minority of the electorate.

This is why the National Organization for Marriage and the Republican Party (I say this with regret) have been so aggressive in taking marriage to the ballot. Voters can, in fact, cast their vote based on passions and even prejudices, and there is no shortage of people who still harbor some serious misperceptions about lesbians and particularly gay men.

In electing a candidate, if the voters had chosen a heterosexual over a lesbian in (let's say) an election for mayor of a good-sized Texas city because (let's say) they simply didn't like lesbians, well, that's politics, and no one could challenge their reasoning. And if they'd chosen the lesbian instead, well, that, too, is politics.

But when voters pass a law that discriminates against not just one lesbian, but all of them, and all gay men too, then the constitution does have a rule. Again, it's not yet clear how strict that rule is, but even the most deferential court review requires the law to be justified by something, anything, that's rational.

The court should search hard for such a justification. Courts shouldn't lightly overturn a majority vote of the people, or of a legislature. But when a prominent and experienced lawyer tells a court he needs no evidence for his case, that is a sign of the lawlessness that our constitution is there to guard against.

H/T to Karen Ocamb

In her Washington Blade column, Jessica Lee interviews the Cato Institute's Robert Levy on libertarian support for gay marriage and the lawsuit against California's Prop. 8. Says Levy:

Majoritarian outcomes cannot trump the Constitution. Legislators can pass statutes but if they lead to outcomes that do not comply with the Constitution then it is the appropriate role of the courts to overturn them. Gay marriage is one of those instances.

True, but I wonder if it's smart strategically. As this Blade article notes, in 2000 California passed Prop 22, a statutory ban on same-sex marriage, by 23 points; in 2008 California voters passed Prop 8, the constitutional ban, by four points. Winning elections (eventually) is a stronger bedrock for our rights than judicial decrees. And without majority or near-majority support in three-fourths of the states, perceived judicial over-reach could trigger a successful anti-gay marriage amendment to the U.S. Constition that no court could overturn-the worst-case scenario.

A ruling in California is only weeks away, but that's only the beginning. At some point, the case will end up before the U.S. Supreme Court , perhaps years from now. In the meantime, battles will still be fought state by state, and winning over the political center/center right (not just the left!) remains paramount to our success.

The conservative Washington Times (which is a good source of news on, well, Washington conservatives) reports that Sen. John McCain will not filibuster against the repeal of don't ask, don't tell. "The fact that Mr. McCain will not filibuster means repeal is all but certain, although Defense Secretary Robert M. Gates has latitude on the timeline," according to the paper.

The decision not to filibuster drops the number of needed votes down to a simple majority of 51. That Republicans are caving shows that despite some primary posturing (McCain is in a tight race with a more conservative opponent), they know which way the wind is blowing.

News to make LGBT progressives nash their teeth. As Washington Post columnist David Weigel reports, Grover Norquist, the president of Americans for Tax Reform and a long-time leader among fiscal conservatives, has joined the advisory council of GOProud, the gay Republican group that's positioning itself as more steadfastly conservative than the Log Cabin Republicans. Norquist calls GOProud "an important part of the conservative movement."

Writes Weigel, "Here you've got the fledgling gay group winning another seat at the table, and a leader of the conservative movement pulling the chair out for them."

Also this week in the Post, a recap on how Ted Olson, another stalwart of the right, is pressing the case for gay marriage.

"The right" is not monolithic. Inroads can, and must, be made beyond the party of the left if the goal is to achieve legal equality for gay Americans.

Semi-relevant. This New York Times feature on a recent David Frum garden party gathering of "members of the conservative intellectual elite" to honor the Somalian-born activist Ayaan Hirsi Ali (she faces an ongoing fatwa/death threat for campaigning against Islamist intolerance toward women, gays, non-Islamists) reeks of liberal condescension. But it does mention that:

Also milling about the white-painted porch and leafy garden were the "independent" gay journalists Jonathan Rauch and James Kirchick.

I'm probably more forgiving of heterosexual politicians who have to deal with gay rights than most gay activists. Our equal rights are hard enough for many of them to envision and talk about in private, and it's waterboard-level torture when they have to speak about gay equality in front of an audience or a camera. I don't have sympathy for their plight (millions of their fellow heterosexuals have no problem at all), but when they are in a position to actually make the needed changes to the law, I find myself rooting for them, rather than hoping they'll fail.

I really wanted to root for Admiral Mike Mullen speaking at USC, but in the end I have to share the gay community's general disappointment with him. Granted, Karen Ocamb asked him some pretty hard questions about DADT (imagine that - the man in charge of our armed services being asked hard questions in public by a journalist!), but here's where I just find him embarrassing: It's 2010, and in response to a question about Don't Ask, Don't Tell, he cannot even say the words "gay" or "lesbian." The closest he ever comes is in an indirect reference to people who have to lie - though he can't bring himself to say what they have to lie about. He dithers on about the people DADT will affect "the most" but the only troops he seems to have in mind are the heterosexual ones.

To be clear, the troops DADT affects the most are homosexual. They are referred to in ordinary public discourse as lesbians and gay men. People who cannot say those words - "homosexual," "lesbian," "gay" - are portraying themselves today as hopelessly clueless, and very nearly ignorant. I am very sorry to say that that is the way the Chairman of the Joint Chiefs of Staff comes across.

Heterosexual troops are affected by this policy, if at all, only in the sense that it caters to the ones who are - still, today - uncomfortable with open homosexuals. Certainly, their opinions should be considered, but this seems to me to be a very rare case where the comfort level of some troops is the driving force behind our policy - we force homosexual troops to lie only because their open presence might distress some heterosexuals. In most other military contexts I'm familiar with, admirals not only don't concern themselves with matters of troop discomfort, they go out of their way to assure troops don't come to expect comfort or nurturing. And that should be especially true when what leadership is fostering is bigoted notions about fellow troop members.

Admiral Mullen might, in fact, understand that. But his repeated inability to call gay and lesbian troops by their right name when they are the subject of his comments is a problem. DADT puts a burden on homosexual soldiers, and that is the burden we are all talking about when we talk about this misbegotten policy. The habit of mind that would permit anyone to avoid mentioning that quite obvious fact is the very habit of mind that needs to be cured. And a man who has that habit of mind and speech is not exactly the model of the man who should be leading this charge.

The 1970s were a pretty fruitful time in gay history, you should pardon the expression.. And despite what some people seem to think, there was an enormous amount of work being done in the realm of politics, rather than just in the courts.

A Denver attorney, Gerald Gerash, has put together a nice YouTube document of a turning point in Denver, when the police harassment that was so characteristic of the time led local lesbians and gay men to band together and fight city hall.

This is exactly the kind of thing I hope people in towns and cities across the country are putting together. History happened in our lifetimes, and we should be recording it like mad. These are people who actually had to argue that homosexuals could live productive and decent lives, and saw their arguments falling on some deaf ears.

But they also fell on ears that were willing to hear, and one of the best parts of this series is when you begin to see council members standing up for the lesbians and gay men in the audience. It takes a long time, but it happens.

There are twelve parts to this series, and they're not exactly organized very well on YouTube. And no one will complain that the piece is too slick or overproduced. But I think that's actually a virtue. This is history made by amateurs, and it's exactly how things are supposed to work in this country.

There's plenty to think about in Frank Rich's NYT Sunday column. I'm not sure if he invented the phrase, "Rat Pack From Hell," but it certainly got my Sunday off to a good start.

His discussion of Perry v. Schwarzenegger brought me back to a theme I've been pretty interested in: the right's dogged fight to keep any aspect of the trial from being televised or broadcast. That is consistent with their efforts, in general, to avoid any public defense of their opposition to same-sex marriage except in commercials and other species of sound bites, including religious ones. They're happy to agree among themselves, but they do not care to have pubic debate with people who disagree with them.

Rich takes note of the fact that the defense of Prop. 8 could only muster two actual experts to take the stand for their entire case. One of them was David Blankenhorn, who seems barely to be an expert on anything, at least in the academic or scientific sense. Like many of us, he certainly has his opinions. But it's a close call whether they're any more reliable than the next guy's. The other expert they called, Prof. Kenneth Miller, did appear to possess some expertise on politics and government, but his testimony that lesbians and gay men are not really discriminated against by initiatives like Prop. 8, isn't exactly open-and-shut.

Judge Vaughan Walker is doing everything he can to supplement the defense's case, since they don't seem to be very interested in doing that, themselves. This is how a responsible judge approaches a trial, considering the interests even of parties who don't seem capable of or willing to make their own best arguments.

Judge Walker released 39 questions he would like answered (by both sides), and Number 1 goes right to the heart of the defense's passivity:

Assume the evidence shows Proposition 8 is not in fact rationally related to a legitimate state interest. Assume further the evidence shows voters genuinely but without evidence believed Proposition 8 was rationally related to a legitimate interest. Do the voters' honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Proposition 8?

There's a constitutional question for you: What should a court do if voters genuinely, but without any basis, believe there is a reason for a law? Do honest but unsupportable and possibly discriminatory beliefs have a role in a court's decision about whether a law is constitutional?

That's important for any number of reasons, but here's how it plays out for me. It's possible very few people would actually have watched the Prop. 8 trial if it had been televised. It's also possible a whole lot would have watched it - maybe not O.J. Simpson numbers, but a lot.

The point of a trial, as opposed to a political campaign, is to examine, with some level of thoughtfulness, the facts supporting each side's best case. Prop. 8's defenders obviously don't think they have much in the way of factual support. But they also don't think they need facts. They rely on intuition and time-tested feelings and beliefs, rather than facts. Politics permits that.

In contrast, a public trial (in the sense that the public could actually watch it) would have been quite the opposite of the trench warfare of the Prop. 8 political campaign. No one really gets cross-examined in a political campaign; everyone gets cross-examined in a trial. Every piece of evidence is subject to challenge and counter-evidence, and it's hard to slide by on sloppy reasoning.

The lack of a full public trial will leave us in no better position than we were during the political battle. The questions and the answers in court are much more focused than the blasts and sputters of the Prop. 8 30-second ads. The very hard work of Ted Olson and David Boies - and the less hard work of their opponents -- will utterly disappear in the rush to judgment when Judge Walker releases his opinion.

The O.J. Simpson criminal trial isn't exactly a model for trials being made public, but whether it led to justice or not, it certainly allowed people to form an opinion based on actual evidence presented in a court. Disagreeing about the evidence is a very different thing from disagreeing about beliefs.

When Perry v. Schwarzenegger is decided, very, very few people will have had access to the strong evidentiary case made by the challengers, and the extremely weak, and nearly nonexistent case made to defend Prop. 8. Judge Walker will be accused of judicial activism if he rules that Prop. 8 is unconstitutional, irrespective of what the facts show, what his reasoning is, or anything else. He could issue a one page judgment or a two-hundred page treatise, and it will make little difference. The headlines will be written only minutes after the bottom line is available.

That is how courts are drawn into politics despite the best intentions of the framers. The public would have been better served if it had been privy to the trial, itself; we could all have seen, directly, that a court has an obligation to take more time than any voter ever will in making a decision about matters of real consequence. Maybe people would still disagree with Judge Walker's opinion, but if so, they'd be able to explain why. That, in my opinion, is the lifeblood of a constitutional democracy.

I've been meaning to take note of the seemingly strange, to many, fact that Elton John performed at Rush Limbaugh's recent wedding. Washington Post blogger David Weigel addressed this, quoting Limbaugh biographer Zev Chafets:

On some social issues, like abortion, Limbaugh is a conventional conservative. On others he sounds a lot like Barack Obama. In an interview last summer, he told me that he regards homosexuality as most likely determined by biology, considers other people's sex lives to be none of his business and supports gay civil unions.

Of course, "the LGBT community is none too pleased with Sir Elton," according to gossip site Popeater:

"I'm flabbergasted," Aaron Hicklin, Editor-in-Chief of Out, tells us. "It betrays either ignorance or self-interest or both, and jeopardizes his admirable record on gay rights."

Or this attack by a blogger who thinks the lesson is "It Pays to Hate." Google reveals this is a common response on the LGBT blogosphere.

The real lesson is that Elton John likes to reach out to those who are sometimes our enemies-witness his performance with Eminem, despite the rapper's (at that time) gay-bashing lyrics, at the Grammy's a few years back. In fact, Sir Elton didn't become the wedding singer just because it was a well-paying gig; since meeting Limbaugh earlier this year, he's kept up a fairly regular e-mail exchange, according to conservative talk radio host Mark Levin, a guest at the wedding (as reported by the web site Elton John News). "He's about tearing down walls, not building them," Levin added.

Limbaugh supported California's Prop 8 and mocks Barney Frank. But think about this: if we want to at least modify the Defense of Marriage Act-so that, for instance, federal benefits could be granted to same-sex couples in states that have civil unions/ partnerships, such as California, post Prop. 8- then getting the support of Rush Limbaugh (the "bigoted" voice of the right, who supports civil unions) could be crucial. It's called coalition building-the real kind, not just among groups on the left that all think alike (the current LGBT progressive strategy).