IGF CultureWatch

Another great piece by Jack Balkin, this time laying out six possible scenarios for same-sex marriage in light of the district court decisions from Massachusetts.

Again, Balkin is primarily concerned with the political implications of constitutional decisions, and again he is absolutely on target. Lesbians and gay men don't, unfortunately, have the luxury of viewing their constitutional right to equality simply as a guarantee. It comes, if it comes, with political strings attached, and those strings are directly controlled by archaic but still potent misunderstandings about what homosexuality is.

In the end, Balkin makes lemonade out of the lemon of a potential U.S. Supreme Court decision upholding Section 3 of DOMA, the one that prohibits the federal government from giving any sort of recognition to same-sex couples lawfully married in their own state of residence. A decision upholding Section 3 would take us out of the courts and put the action back where pure politics would suggest it ought to be - the states. He posits that in perhaps a decade we might be able to go from six marriage-recognizing states to twenty-six.

If that effort only involved getting legislatures to enact same-sex marriage (or civil unions; I'd be happy with civil unions as a political compromise), he might have a point. But this is where Balkin uncharacteristically misses an obvious and extremely important point. The legacy left to us by Karl Rove is a national landscape where voters actually changed their state constitutions - not just their statutes - to prohibit same-sex marriage. A protection for the minority against the majority was enlisted as a protection of the majority against that minority. Prejudice carried the day as a political tool to win short-term advantages. Generations of misunderstanding and ignorance were leveraged and elections were won. Those misunderstandings, that ignorance, have now been enshrined in state constitutions across the land as principles by which those states will govern themselves.

Certainly in some states like California, we can return the equality our state constitution guaranteed prior to Prop. 8 with a majority vote - though it won't come easy. Other states are not so fortunate. For them, the political battles for same-sex marriage will be uphill and in the snow.

It's easy to talk about the virtue of political action. But if there ever was a situation where the ordinary constitutional rules have been disregarded or turned utterly upside-down, where constitutional protections have been torn up and thrown away, same-sex marriage is that case.

In that context, then, the political reaction to a federal court victory is something I fear a bit less than Balkin and others. At some point we need to stand up and say that the principles and plain words in our constitution actually mean something. Damage has been done to the ideals we jointly established for our democratic republic. The equal protection clause was put there for a reason. The equal protection clause was put there for this reason. Heterosexuals can minimize that in deference to politics. But sometimes -- now in particular -- lesbians and gay men can't.

James Kirchick takes note in the Wall Street Journal that:

Earlier this month Madrid celebrated its annual gay pride festival, reputed to be the largest in Europe. It featured the usual mixture of calls for tolerance, righteous political speechifying, and raucous display of sexuality. But the Spanish capital also earned a dubious distinction this year not for anything it included, but for what it excluded: Israel.

The municipality of Tel Aviv had originally planned to sponsor a float in the Madrid parade. But Spain's Federation of Lesbians, Gays, Transgenders and Bisexuals revoked the invitation following Israel's raid on the Gaza flotilla that ended with nine dead pro-Hamas activists.

Israel is the only Mideast country that respects the rights of gay people. As Kirchick observes: "Saudi Arabia beheads gays. Syria arrests them in sting operations. Iran hangs them from cranes in public squares.... As for Gaza, one of Hamas's leaders has referred to gays as 'a minority of perverts and the mentally and morally sick.'"

There's an old saying that bosses pay employees just enough so they don't quit. The same is true about politics, in that parties give their coalition blocs just enough to keep them onboard. If you don't play hardball, you don't get much.

San Francisco's Bay Area Reporter relates that:

Congresswoman Jackie Speier put a damper on hopes for swift House passage of the Employment Non-Discrimination Act [stating] she doesn't see the LGBT workplace protections becoming law anytime soon. Addressing the crowd of gay and straight political and community leaders at Sunday's Alice B. Toklas LGBT Democratic Club Pride breakfast, Speier said, "Speaker [Nancy] Pelosi is doing all she can to ensure a majority for next year so we can pass ENDA."

Get that? Despite the big Democratic majorities in Congress that are certain to shrink after November, give us your votes and money and maybe next time round. Got to love the moxie, right?

Leaving aside the debate between gay progressives and libertarians/conservatives over whether ENDA is actually a good idea, the political reality is that its supporters can't sue through the courts to achieve protected-class status in the workplace. It's legislation or nothing. The same isn't true of overturning "don't ask, don't tell" and the Defense of Marriage Act, however. Which is why the White House and congressional Democrats can't simply announce that action will be delayed until after gays pony up their votes and dollars for the next election cycle. And the next. Or can they?

The L.A. Times reports:

Gay veterans organizations say the questionnaire sent to 400,000 military personnel will produce skewed results on the potential effect of repealing the ban on openly gay service members.

Most of the criticism focused on a handful of questions in the lengthy survey related to whether unit readiness would suffer and the extent of concerns among service members about sharing housing, bath facilities and attending social functions with gay and lesbian personnel.

Critics of the survey note it doesn't ask about the effect on unit morale or readiness due to the current policy of discharging troops found to be gay. The Servicemembers Legal Defense Network, which provides legal help to those discharged under the current law, recommends that troops not participate in the questionnaire.

Meanwhile, Politico reports:

Next week, a lawsuit brought by the Log Cabin Republicans is going to trial in California-and Obama's Justice Department is in the uncomfortable position of trying to prevent the "don't ask, don't tell" policy from being overturned as discharged veterans testify about its dramatic impact on their careers.

Some gay rights activists who were cheered by Obama's decision in May now say they're frustrated by what feels like a two steps forward, one step back approach to the issue-especially in light of Obama's delay in seeking to repeal of the policy in the first place.

Gay legal advocates "note that from time to time, [the Justice Dept.] has refused to stand behind laws under challenge as unconstitutional," but instead will fight in court to defend don't ask, don't tell. I'd add, just as they'll fight in court to defend the Defense of Marriage Act in the Massachusetts' case, discussed below.

More. Nate Silver at FiveThirtyEight.com says that a key portion of the Department of Defense's troops survey "is fairly useless" in that it "measures the relationship between gossip and unit morale [more] than anything having to do with homosexuality per se" and "goes out of its way to avoid asking the troops about something which is arguably more relevant and which is certainly more measurable: their opinions about DADT."

The national Log Cabin Republicans, encourage servicemembers to complete the survey, arguing "Not doing the survey abdicates terrain to those who want to keep DADT in place."

Jack Balkin has an excellent column on the DOMA decisions from the federal court in Massachusetts. He makes the best case I've seen for an appeals court to overturn them.

But his argument is not so much a legal one as a tactical one. He says, in the first paragraph, "I believe that federal and state laws that discriminate against same-sex couples violate equal protection of the laws. But I have no faith that the Supreme Court will agree with me for many years."

This is the dilemma - and the frustration - that gay marriage proponents crash their skulls against every day. Of course the equal protection clause means what it says. Lesbians and gay men are citizens, too, and unlike virtually any other specified class of citizens in the modern world, they are called out in specific laws to be denied rights that the majority takes for granted for itself. The equal protection clause was designed to address exactly this kind of injustice by the majority against a very small minority. There are very, very few respectable legal professionals in this country who do not see that simple and blindingly obvious fact. Court after court after court finds our arguments to be persuasive and even compelling.

The Massachusetts decisions are newsworthy only in that they are from federal rather than state courts. That changes the staging of the problem, but that makes a big difference. Balkin's concern is not with the ultimate justice of gay equality, only its timing for the nation as a whole. It is too soon for marriage equality to be recognized by the federal courts. Some day it will. Some day it must. But the nation isn't ready for it yet.

He may be right about that. This is certainly the heart of Jonathan Rauch's position. Gay marriage, gay equality is inevitable. Also inevitable is the backlash a premature court ruling would create. Let gay marriage play out in the states first. It's too soon for too many. Let folks get used to it.

The constitution guards against inequality, but it does not guard against political firestorms. And the political firestorms over gay marriage have amended constitutions, themselves, to specify inequality for homosexuals, or to prevent such equality from ever even being declared. The tradition of discrimination - or, perhaps more fairly, the tradition of homosexual invisibility among heterosexuals - is too strong. Too many people are just not used to there being homosexuals who aren't ashamed enough of themselves to hide or remain decently silent.

But a lot of homosexuals - and extremely powerful heterosexual supporters like Martha Coakely and David Boies and Ted Olson - are willing to take the risk. Homosexuals aren't going back to the closets, and the injustice Americans could always blind themselves to before is now out in the open all across the nation. It's been a quarter of a century since domestic partnership first found its way into the law, and seventeen years since the Hawaii Supreme Court decision in Baer v. Lewin. Maybe the time is right.

Balkin and Rauch have a respectable political point, and they have 30 state constitutional amendments as pretty strong evidence on their side. But the rest of us have a point, too. Maybe each of those federal court battles, and each battle over a state court decision, and the battles over hate crimes laws and Ellen Degeneres and Brokeback Mountain and Prop. 8 and Don't Ask, Don't Tell and the Today Show's Wedding Contest and Tinky-Freaking-Winky are having their effect, are eroding that rock of silence that we were hidden behind for so many generations. Maybe this is the time.

It is now our heterosexual opponents who want to hide, while still availing themselves of political appeals behind the walls of TV commercials and sermons to the converted. They deeply believe themselves to be right, and are not used to having to defend themselves. But as David Boies so eloquently pointed out, lectures and soundbites full of the convenient arguments from unexamined tradition are having a hard time standing up to scrutiny: "In speeches, no one gets to cross-examine them." Courts have to go further and further out of their way to find reasons to uphold marriage laws that are flatly, facially and glaringly unjust to homosexual citizens.

That is certainly why we win in courts of law, and have been losing in the political arena. Voters never have to explain themselves; courts always do. And that is why Maggie Gallagher and her partners in this modern crime continue to threaten "activist judges" and those of us with the temerity to argue from justice rather than politics. "We still have politics, we still have prejudice," she implicitly threatens, not incorrectly.

Balkin offers an honest and respectful legal argument to solve a political problem that happens to manifest itself in the courts. But his extraordinary effort shows how hard it is today to patch over the shabby excuses for not reading the simple words of the constitution plainly.

Winston Churchill famously said in November 1942, when for the first time Nazi forces were pushed back in North Africa, "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

The ruling by a federal district court in Boston finding unconstitutional the worst aspect of the federal Defense of Marriage Act (DOMA)-the section prohibiting the federal government from recognizing same-sex marriages that are recognized by the states in which the couples reside-also signals an "end of the beginning."

As 365gay.com reports, "Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married." In a related case, "he ruled that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment."

The rulings do not force every state to validate same sex marriages, nor even for states to recognize same-sex marriages performed elsewhere. They do require that the federal government recognize marriages where they are recognized by the states in question. That's a common sense approach that allows cultural and political evolution to move forward through the states without triggering a political backlash that could result a draconian federal amendment voiding all same-sex marriages.

The district court's ruling will be appealed by the Obama administration to an appellate court, and then to the U.S. Supreme Court. It will take years. But the signs point to an eventual end of federal discrimination against same-sex couples.

More. The New York Times looks for tea-party types who talk about states' rights but don't like Judge Tauro's use of the Tenth Amendment-and can't find them. They find even tea partiers who oppose gay marriage saying "The Constitution does not allow federal regulation of gay marriage just as it doesn't allow for federal regulation of health care."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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