IGF CultureWatch

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.

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.