IGF CultureWatch

Andrew Sullivan's Dissent of the Day questions this observation from Judge Walker:

"Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage."

This is (the writer argues) nonsense, since there were no such eras, unless you are talking about all of recorded history up to the late 20th Century.

That's true, but it misses the point. Here is the more salient conclusion from the opinion:

"The evidence did not show any historical purpose for
 excluding same-sex couples from marriage, as states have never 
required spouses to have an ability or willingness to procreate in
 order to marry. Rather, the exclusion exists as an
 artifact of a time when the genders were seen as having distinct
 roles in society and in marriage. That time has passed."

The proponents of Prop. 8 want to focus exclusively on justifying heterosexual marriage, but the court was being asked to decide something else. Heterosexual marriage is not at issue in this case. It will continue with or without a decision in Perry v. Schwarzenegger, or any other case. No one is challenging heterosexual marriage.

The relevant question is this: Are there reasons, historically or in the present, to exclude same-sex couples from marriage? That is both a different question from the one most people are accustomed to asking, and a vital one for the constitutional analysis of the issue lesbians and gay men are facing.

The U.S. Supreme Court has long held, very explicitly, that the constitution recognizes a fundamental right to marry. But that can be viewed in at least two ways. First, it could mean the right to marry someone of the opposite sex. That would be a right that only heterosexuals could exercise meaningfully. "Fundamental" in the constitutional sense, means that the government cannot interfere with the right's exercise except for the most compelling reasons. If the right is exclusive to heterosexuals (because it is not just "the right to marry," but "the right to marry someone of the opposite sex") then voters or legislatures can exclude homosexuals from exercising the right.

But it can also be viewed as the courts have actually stated it: a fundamental right to marry. Period. The question is whether the phrase, "someone of the opposite sex" is inherently included in the right.

That was what Judge Walker's opinion was examining. Marriage between heterosexuals has been taken for granted for all of recorded history, not because anyone ever made a decision to exclude homosexuals, but because no homosexuals had the visibility or political strength or will to even try. It was not until the late 20th Century when lesbians and gay men were able to become visible and politically active enough to challenge even laws that made them criminals -- the obvious first priority. And that task is accomplished.

Now is the time to ask the marriage question -- but it needs to be the right question. The anti-marriage forces have been enormously successful in keeping the focus on heterosexuals, and off of homosexuals. The political battles over same-sex marriages are battles focusing on heterosexual grievance, anxiety and privilege. Homosexuals do not play any role onstage in the fight against same-sex marriage. The Prop. 8 campaign was a classic example of an argument of, by and for heterosexuals.

Political battles can be over anything, or nothing. That is the nature of politics. But when it comes to some rare things that are important enough to be set out in our collective aspirations, known as the Constitution, real and substantial justifications are required along with a vote. Fundamental rights cannot be taken away by majority vote. And the equal protection of the law, by definition, cannot be abridged by a majority of any size.

Perry v. Schwarzenegger is the first opportunity in a federal court for exploring and answering that kind of question. No one is asking whether heterosexuals have to defend their marriages. They don't. The question - the only question - is whether there are reasons to exclude homosexuals from that vital and deeply human institution.

Opponents of same-sex marriage had every opportunity to offer any such reasons. And any one would have done. But in the end, they continued their pathological focus only on themselves, and failed to answer the question they were being asked.

The Cato Institute's David Boaz blogs that Judge Vaughn Walker, who just struck down the California ban on same-sex marriage, is no "San Francisco liberal" (as some marriage equality opponents are claiming). In fact, "progressives" and gay activists fought his appointment. As Boaz writes:

Judge Walker was first appointed to the federal bench by President Ronald Reagan in 1987, at the recommendation of Attorney General Edwin Meese III. ... Democratic opposition led by Sen. Alan Cranston (D-CA) prevented the nomination from coming to a vote during Reagan's term. Walker was renominated by President George H. W. Bush in February 1989. Again the Democratic Senate refused to act on the nomination. Finally Bush renominated Walker in August, and the Senate confirmed him in December. ...

[C]oalitions including such groups as the NAACP, the National Organization for Women, the Human Rights Campaign, the Lambda Legal Defense Fund, and the National Gay and Lesbian Task Force worked to block the nomination.

In other words, this "liberal San Francisco judge" was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It's a good thing for advocates of marriage equality that those forces were only able to block Walker twice.

It almost makes you doubt whether progressives really are smarter and more insightful than the rest of us.

More. James Taranto of the Wall Street Journal predicts that Justice Kennedy, based on the consistency of his pro-gay equality rulings, will vote to uphold Judge Walker's decision:

Yet while Kennedy cannot be pigeonholed in terms of "ideology," on this specific topic, he has been consistent in taking a very broad view of the rights of homosexuals. He not only voted with the majority but wrote the majority opinions in two crucial cases: Romer v. Evans (1996) and Lawrence v. Texas (2003). ... Those who see Justice Kennedy's position in Perry as difficult to predict in effect entertain "the belief that principle and logic have nothing to do" with his decisions on the court.

Kennedy, too, was a Reagan appointee opposed by liberal advocacy groups.

Furthermore. Jon Rowe has a different prediction.

It will be interesting to see if Perry meets up with July's federal district court ruling in Boston that found parts of the Defense of Marriage Act to be unconstitutional.

Here's the only really striking thing about Judge Vaughan Walker's opinion in Perry v. Schwarzenegger: Its 136 page length includes 108 pages of facts -- 108 pages of dry, straightforward, meticulous, and ordered citations to the evidence in the trial.

It might be easy for a layperson to misunderstand that. This is not a sexy opinion. There are no rhetorical fireworks, no forging of new and creative legal theories, no soundbite-worthy quotes, and not a trace of grandstanding. This is a very competent and workmanlike opinion from a trial court judge who was doing his job.

That job is to (1) allow both sides ample and fair opportunities to present the facts in the dispute; (2) determine which are the most credible and relevant facts, given the existing law on the subject; and (3) apply those facts to that law in order to reach a decision about which side should prevail.

Mission accomplished.

Most people will focus on this as a legal opinion, but that isn't its strength, and it shouldn't be. Trial judges are primarily there to gather the facts, not theorize about the law. Despite temptations from some excellent lawyers who know their way around the caselaw, Judge Walker didn't accept any offers to kick the tires on novel and edgy legal theories. Instead, he relied on longstanding federal constitutional law - specifically that old workhorse, the Fourteenth Amendment -- and applied it in the most modest way possible, using the most generous standard available to the proponents of Prop 8: they only had to show that there was some rational basis for the voters to distinguish between same-sex couples and opposite-sex couples. Any rational basis would do.

The proponents had every opportunity to build their case over the many months of discovery, depositions, witness-preparation and actual testimony at the weeks-long trial. Virtually all of their evidence is laid out in those 108 pages of facts.

And it isn't much. In fact, at one point one of their lawyers simply said they shouldn't have to present evidence, shouldn't have to come up with actual facts to support their case.
Contrast that with the plaintiffs challenging Prop. 8, who brought forward a small battalion of witnesses, both civilians and experts, introduced what we can only imagine to be millions of pages of documents and depositions, hours of video and taped recordings, and enough motions, counter-motions, memoranda and oppositions to memoranda to - well, to win their case.

And in a nutshell, that's where we now stand as a nation on the issue of same-sex marriage. Those of us who support same-sex marriage not only believe we are right, we are making that case based on evidence in the world around us. Those who oppose same-sex marriage deeply believe they are right and have always been right, and have a very hard time comprehending that they actually have to defend themselves. Where is the need for evidence, for facts?

But what they have historically taken for granted is now in question. Yes, marriage has always been understood as being between one man and one woman (with biblical polygamy confusing this simplicity), but why? What is it about marriage that makes it an unsuitable - to some, an unimaginable - legal and social institution for same-sex couples?

During all those centuries when no one asked these questions, no one ever needed to answer them. But we are asking the questions now. And under the rules that govern our country - under the constitution - we have charged the courts with providing the forum to provide the answers.

Judge Walker's opinion does exactly that, and not a thing more. He opened the court - our court - to both the proponents of Prop. 8 and its challengers, and let them do the best they could to answer the questions we may not have asked in centuries past, but have a profound need of asking now.

Anyone can read those 108 pages (though few will), and find little to criticize there. The only criticism from same-sex marriage opponents will be the bottom line, the conclusion that there really isn't a rational reason, today, for the law to treat heterosexual couples as a favored class over homosexual couples.

Perry v. Schwarzenegger lays out all the reasons offered, and each one erodes under the steady drip of the evidence that was presented. In the end, all that is left is fear and superstition about homosexuals. Those are things that can motivate voters, but the constitution does not credit them as justifications for the law.

Very good news. From the ruling in Perry v. Schwarzenegger:

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result ...

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

It will be stayed, appealed, and eventually make its way to the U.S. Supreme Court. Passing marriage equality in a few more states legislatively, and managing to defeat some anti-gay-marriage ballot initiatives, would certainly help its chances there. Public perceptions are changing, but the Supreme Court, with Justice Kennedy as the swing vote, under the best case scenario won't get too far ahead of public sentiment. There is work to be done.

We'll also have to see how this plays out come November in California, with the GOP senate and gubernatorial candidates opposing gay marriage and favoring Prop. 8. Things certainly would have been brighter if, in the GOP senate primary, gay marriage opponent Carly Fiorina had lost to former GOP congressman and gay marriage supporter Tom Campbell. But sadly, that didn't happen.

Bad News. Bradley Manning, the alleged leaker of the Afghan war memos that put at risk the lives of Afghans identified as aiding the U.S.-backed war against the Taliban, is, reportedly, openly gay. Thanks guy, if it was you, this will be a big help with ending don't ask, don't tell (already, we're seeing responses like this one). But hey, what does the fight against Islamofascism matter when there's a chance to boost your cred with the left.

I almost hesitate to post this because many of our self-styled "progressive" readers take such intense offense at any item taking note of gay Republican efforts to work with their party's leadership toward moderating the GOP's traditional anti-gay stance. But this is worth pointing out: Staunchly conservative Texas GOP Sen. John Cornyn will speak at the Log Cabin Republicans 2010 National Dinner in Washington, D.C. (event details and speakers here).

Yes, he opposes gay marriage. Yes, he wants to wait until the military study concludes before addressing don't ask, don't tell. Yes (all together now): Democrats are better on gay issues (although, as noted in the previous post, much of this is rhetorical). Cornyn's speaking at the fundraiser is still a positive sign.

As the senator put it, same-sex marriage is "absolutely" one of those things he and LCR members don't agree on, but "I don't want people to misunderstand and think that I don't respect the dignity of every human being regardless of sexual orientation."

Forward-looking conservatives know that their party has to moderate its views on gays (and the Texas GOP is among the most reactionary pillars of gay rejectionism within the party). So this should be viewed, and welcomed, as a sign of the times. We won't achieve gay legal equality until there is support within both parties, despite those who protests that backing the "progressive" party and maximizing its power over the country is the best strategy (well, it's best for that party and its partisans, I guess).

The Washington Blade reports that "Democratic senators are blaming Republican obstructionism for the Senate's failure to advance the Employment Non-Discrimination Act, but others say a lack of strategy is preventing a vote." Moreover:

Assistant Majority Leader Richard Durbin (D-Ill.) said Democratic leadership wants to move forward with ENDA, but noted difficulties in moving any item on the legislative agenda forward. "We have a tough time moving anything on the calendar because of Republican filibusters," Durbin said. ... Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor & Pensions Committee where ENDA is pending, on Tuesday expressed similar grievances about Republican obstructionism. Asked what's keeping the legislation from coming to a Senate vote, Harkin simply replied, "Republicans."

Of course, Democrats have an overwhelming majority in the House. In the Senate, Republicans can only filibuster if all 41 vote in unison, but ENDA has two GOP co-sponsors, Sens. Susan Collins and Olympia Snowe of Maine. If Democrats were committed to it, ENDA would be passed. But they're not. ENDA is a vote they'd rather do without, and by taking no action they can (1) blame Republicans and (2) keep using the lure of ENDA to reel in more checks from gay Democrats. This isn't a new gambit; during Bill Clinton's first two years in office Democrats also had solid congressional majorities. The result: no ENDA then, either.

As the Blade also reports:

R. Clarke Cooper, executive director of the Log Cabin Republicans, dismissed the notion that Republicans were holding up ENDA in the Senate and said "only the current Senate majority leadership can truly answer" why ENDA isn't on the calendar. "Blaming the minority leadership for the majority's disorganization and lack of planning this year is simplistic and, frankly, lazy," Cooper said.

indeed, when Sen. Durbin was asked whether any discussions on a strategy to advance ENDA in the Senate have taken place, he admitted to the Blade, "We have not reached that level." Well, it is much easier to blame Republicans than for the majority to actually do anything.

As Blade editor Kevin Naff commented in an editorial: "Democratic politicians will never shake their nervous Nellie ways and stand up for LGBT constituents if they know gay donors will write checks election after election regardless of legislative advances."

It really is all a game, and we're the marks.

Columnist Steve Chapman looks at the National Organization for Marriage (NOM) bus tour and reaches an interesting conclusion: NOM is capitalizing on provoking LGBT protests at its events, and activists are giving NOM what it wants. Chapman writes:

why would NOM hold a rally where it is sure of being badly outnumbered by motivated and well-organized critics? Maybe because that's what it wanted. The Summer for Marriage Tour could have been called the Come Shout Us Down Tour. The endeavor has managed to make opponents of gay marriage look like a brave, embattled minority, even though they constitute 53 percent of the public and have gotten their way in all but a few states. ...

NOM's website ... focuses not on any outpouring of support for its cause, but on the protesters who have appeared at its rallies, including some it accuses of disruptive and intimidating tactics. ...

The organization specializes in a form of political jujitsu, leveraging its foes' weight against them. As chairman Maggie Gallagher tells me, "The counter-protests are holding down our physical numbers, but they're expanding our online activist community."

Chapman adds:

It's hard to get terribly outraged when a group that goes out of its way to be drowned out by its critics almost gets drowned out by its critics. But the people here to support "traditional marriage" can accurately claim that they have been impeded in their effort to communicate their views.

The older I get, the more it seems that activists on the left and right work hand in glove, often giving each other what they crave.

More. Somewhat related, Andrew Klavan writes about the left's penchant to try to suppress opposing views. Generally speaking, he's not wide of the mark. Our own John Corvino and Jon Rauch, on the marriage question, are rare exceptions in seeking to actually debate those on the social right rather than shout them down.

There are any number of good reasons to read Jonathan Rauch's "Red Families, Blue Families, Gay Families and the Search for a New Normal," not the least of them being the lack of drama, insult or animus toward our opponents. Whatever can be said of Jon, he makes a reasoned, moderate and fully-examined case for equal marriage.

Maggie Gallagher knows Jon, has spent time debating him and talking with him, and is fully aware of his views, as well as his demeanor. Yet in listening to her public pronouncements now, you would never know she was aware of non-hateful, nonviolent, rational or empathetic homosexuals. Her current rhetoric focuses solely on lesbians and gay men who hold her and her supporters in contempt. To be fair, there are plenty of those.

But what is frustrating is how Maggie - and, in fact, nearly all of the anti same-sex marriage crowd - fail to show us the respect and humanity that Jon displays so generously.
Jon does not shy away from directly confronting the best arguments against his own position. This piece, like most everything else I've read of his, lays out a fair and clear articulation of the opposition, and tries to understand it, the better to answer it.

Here is the test of good faith in political debate: Each side should be able to convey the other side's position to the other side's satisfaction. Jon, I think, meets this standard. Some opponents of same-sex marriage are very concerned about homosexuality in general, and feel that same-sex marriage would normalize homosexuality. That, in their view, is a socially dangerous thing to do. Others, and Maggie is in this camp, are less concerned with the normalization of homosexuality than with what they view as the abnormalization of the conventionally defined family. While there is certainly some compression and simplification here - Jon is, after all, not making their argument, just hoping to describe it fairly - I think it is hard for same-sex marriage opponents to disagree with his summation, though they would certainly want to elaborate.

Compare that with the way Maggie approaches the political debate. The very heart of our argument is equality; the law treats heterosexuals differently than homosexuals, and, in the vast majority of states, virtually ignores the existence of same-sex couples as families. While I have heard Maggie refer respectfully to lesbians and gay men of her acquaintance, she does not try to engage our argument and respond to it; she simply avoids it. She doesn't care about what happens to same-sex couples under the law. Her entire focus is on the rights of heterosexuals, and their role in society.

That is consistent with her concern about heterosexual families, but her inability or unwillingness to engage our best arguments shows that she is not interested in having a debate; she is content to continue a monologue. But heterosexuals are not the only people in the country, and the failure to even try to understand the world from the point of view of homosexuals is very strong evidence of a blithe ill will, at best, and intent to discriminate against a minority at worst.

Compare Maggie with David Blankenhorn. He, too, knows Jon, and has spent time in debate over same-sex marriage. But he is not afraid to acknowledge that we do, in fact, have an argument that merits response. This has harmed his case (to the extent he wants to preserve exclusively opposite-sex marriage) because it necessarily concedes same-sex couples are, in fact, being treated unfairly. His testimony in the Prop. 8 trial was extremely damaging to our opponents only because it was candid and humane. Every trial lawyer knows these can be fatal qualities in a witness, however valuable they are in a human being.

Aside from Blankenhorn, there are virtually no opponents of same-sex marriage who seem willing to treat us with the courtesy and dignity that Jon regularly displays, to actually articulate our side and then explain why we are wrong. I won't claim that Jon is representative of the kind of argumentation I prefer, but there is far more of it in support of same-sex marriage than there is in opposition.

That asymmetry is the source of the annoyance and peevishness among our supporters that Maggie exploits so well. She continues to win the imaginary debate she is having with herself, but she does her cause no honor by ignoring the very real arguments that could prove her wrong. She'd have done well to learn something from Jon while she had the chance.

NOTE: In the Comments, Jorge correctly points out that I'd inadvertently included the wrong link to Maggie's current rhetoric. I've fixed it to link to the correct video of Maggie calling us out for being hateful because we disagree with her.

Belatedly, I'm just now catching up with remarks that former Arkansas Governor Mike Huckabee made in April to Michael Tracey, a college journalist and a student at the College of New Jersey. Belatedly or not, those remarks deserve comment, because what they say about Huckabee's character is not pretty.

True, what Huckabee says about gay marriage isn't new, for him. But just listen to the way he says it.

You don't go ahead and accommodate every behavioral pattern that is against the ideal. That would be like saying, well, there are a lot of people who like to use drugs, so let's go ahead and accommodate those who want to use drugs. There are some people who believe in incest, so we should accommodate them. There are people who believe in polygamy, so we should accommodate them.

The gay marriage debate has been going on for well over a decade now. Yet Huckabee makes clear that he has not given the subject a moment's thought, beyond his initial, frozen-in-amber reaction-one which consists not of a reasoned argument but of a tone of contempt. As if it were self-evident that gay relationships are the moral equivalent of drug abuse. As if it were obvious, with same-sex marriage now six years old in Massachusetts and legal in five states (plus DC), that recognizing committed gay relationships must lead to every other random, bizarre change anyone can think of.

Huckabee also speaks up for Arkansas's ban on adoption by same-sex couples, as if same-sex parenting were a radical experiment. It never really was, but in 2010 anyone who reads a newspaper knows that thousands and thousands of kids have been successfully raised by gay couples, and there is no evidence that the kids are disadvantaged (see, for example, this article [PDF]). Which, by the way, is not true of kids adopted and raised by single individuals, which Arkansas and every other state allows. And is also not true of kids raised in foster care, the likely alternative for some kids when gay adoption is banned.

In 2000, these "I can't be bothered to think about it" responses were merely lazy. In 2010, they show deliberate refusal to even entertain the moral case that Huckabee's gay and lesbian fellow-citizens are making. All he is really saying here is, "I couldn't care less. Get off my planet."

Truly contemptible, though, is this: when, inevitably, Huckabee's words were noticed and he took some flak, he attempted to blame the young journalist for "grossly" distorting his views. In fact, Huckabee was quoted accurately and in context, as Tracey's rejoinder, and the audio of the interview, made clear. (Rachel Maddow plays choice excerpts.)

So supplement the word "contempt" with another, "cowardice." And remember the name of that young journalist, Michael Tracey, whom I met at a conference the other week and who is off, I hope, to a great career-having already launched a campus magazine.

More: In a recent New Yorker article, Huckabee is asked if he wouldn't be curious to know whether same-sex marriage has positive or negative effects kids and society. He replies, "No, not really. Why would I be?" And then...he laughs.

Couldn't be much clearer than that. Same-sex marriage. Real-world effects. Lives of children and gay people. All...a joke.