IGF CultureWatch

I come not to praise the distinction between status and conduct, but to bury it.

Differentiating between conduct - doing homosexual things - and status - being homosexual - has been with us for most of the modern gay rights debate. That's in part because of a fundamental tenet of the law that says you can't convict someone of a crime based on their status, only their bad conduct. The government can't criminalize alcoholism, but it can convict an alcoholic of doing otherwise criminal things.

Sodomy has historically been the bad thing that homosexuals did. Theoretically, heterosexuals could also engage in the same form of bad behavior, but because sodomy has so conventionally been used against homosexuals, that has tended to be the focus of the public discussion.

In 1986, Bowers v. Hardwick seemed to erase that distinction. The majority's almost obsessive focus on the phrase "homosexual sodomy" when analyzing a law that applied to sodomy without reference to the genders of the participants, appeared to give permission to discriminate against homosexuals. If not, why spend so much time talking about homosexual sodomy when the statute didn't?

That is exactly how Ninth Circuit Judge Stephen Reinhardt read Bowers. In one of the pre-DADT cases of military discharge for homosexuality, Judge Reinhardt would have ruled against Sgt. Perry Watkins. The majority opinion (later overturned) had distinguished the spanking-new Bowers because that was a case about homosexual conduct, and Watkins' case was about sexual orientation as a status. They found homosexuals to be a suspect class for equal protection purposes, and ruled that the military could not constitutionally ban all homosexuals simply because of their status as homosexuals.

Judge Reinhardt found the distinction an unconvincing reading of Bowers:

I do not believe we can escape the conclusion that "homosexuals", however defined, cannot qualify as a suspect class. Even if we define the class as those who have a "homosexual orientation", its members will consist principally of active, practicing homosexuals. That the class may also include a small number of persons who are or wish to be celibate is irrelevant for purposes of determining whether the group as a whole constitutes a suspect class. I simply see no way to say that homosexuals defined broadly (by status) are a suspect class, but that the same group, if more narrowly defined (by conduct) is not. Whether the group is defined by status or by conduct, its composition is essentially the same. In short, "homosexuals" are either a suspect class or they aren't.

He concluded that the fairest reading of Bowers allowed open discrimination against homosexuals, period, and that as a judge on a court inferior to the Supreme Court, he could not depart from their ruling - or what he believed to be their bias.

I had the privilege of working in Judge Reinhardt's chambers the year after Watkins. It had caused quite a stir in his office, and I had the opportunity to discuss my own views (supporting the majority) with him. He was unshakable, and I came to believe he was right. The overreach in the Bowers majority is nothing but the conventional understanding that, whatever the specifics, homosexuals should not have sex with one another. The fact that they do have sex gives rise to all the peripheral prejudice against them. If (as Bowers ruled) the law can prohibit homosexual sex, its inferential and attendant prejudices against the group must also be permissible.

Judge Reinhardt did not personally believe it was appropriate (or constitutional) to treat homosexual sex differently than heterosexual sex:

[T]he fact that homosexuals (or persons of "homosexual orientation") engage in or seek to engage in homosexual conduct is as unremarkable as the fact that "heterosexuals" (or persons of "heterosexual orientation") engage in or seek to engage in heterosexual conduct. To pretend that homosexuality or heterosexuality is unrelated to sexual conduct borders on the absurd.

That brings me back to Sprigg/Fischer/Bahati. They want to love the sinner but hate the sin. While that's as suspect in theology as it is in law, they are free to condescend to us as a religious belief. But here in the secular world, Bowers is no longer the law, and the civil world has to take us as we are, conduct and orientation together.

It remains fashionable to dismiss Judge Reinhardt as a knee-jerk liberal (and, to be fair, he has a long track record to that effect). But Watkins stands as one crystal clear example where he knew what result he wanted, and found the fairest reading of the law did not permit that result.

Lawrence is now controlling, and Justice Scalia articulated a thought similar to that of Judge Reinhardt in his Watkins dissent. Overturning Bowers is a pivotal step for the equal protection challenge that the Watkins majority prematurely forged. Why do our lives have to be dissected into discrete legal arenas and sectors? We're whole human beings, sex and love included. Lawrence helped put our lives back together again.

Lawrence applies to criminal laws, and marriage is quite different. But Justice Scalia thought that overturning Bowers would inevitably lead to a fuller equality that would have to include marriage. I agree. We will see if Justice Scalia hews to the same kind of principled respect for his court's authority that Judge Reinhardt exhibited when he was put to the test.

Even those of us who believe the Constitution protects us know that a ruling in our favor will only be as secure as at least 2/3 of the states will let it be. That's why we have to keep up our efforts to change the political culture.

This is how we are doing it: A brief conversation in South L.A., where an African-American woman, who obviously does not feel comfortable even talking about the subject is kindly but firmly helped to actually think about the issue directly.

I don't know who Jay, the lesbian canvasser is, but hers is the face of the last mile in this revolution. Thanks to all the Jays out there.

We are indebted to Peter Sprigg of the Family Research Council and Bryan Fischer of the American Family Association - not to mention David Bahati, sponsor of Uganda's Anti-gay bill - for returning us to a debate that should have been put out of its misery in 2003: Should homosexual conduct be against the law?

Lawrence v. Texas answered the question for constitutional purposes. The government has no legitimate business making particular sexual acts a criminal offense if they are voluntary, adult and in private.

But the constitution isn't everything. For centuries, criminal prohibitions provided the foundation for official (i.e. legal and governmental) discrimination against homosexuals. The premises about homosexuality in those laws are what most older people, in particular, take for granted. We may no longer be criminals under the law, but in some people's minds we are certainly doing something that is wrong.

The unambiguous desire of Sprigg/Fischer/Bahati to reestablish a legal regime where homosexual conduct is criminal lets us look at the issue from today's entirely new perspective: Why is some sexual conduct between consenting adults in private wrong. By "wrong" I do not mean "a sin," since I am talking about the law here, not theology. Religious adherents are free to believe, among themselves, what their religion teaches about sin, whether it's murder or adultery or dancing. There is much overlap between criminal laws and theological transgressions, but the two realms are not identical. Criminal laws in a pluralistic society of varied religious beliefs have to have justifications beyond sinfulness, since there is inconsistency between, and even within religions, and since many people belong to no formalized religion at all, a choice the constitution requires all of us to respect.

Sprigg distinguishes between homosexual conduct and homosexual orientation. Homosexual conduct is bad, but mere orientation is no problem. Ironically, this is a distinction gay rights supporters have drawn as well, when it has been advantageous. But it doesn't answer any questions.

Justice Scalia illustrates the problem in his dissent in Lawrence: "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home."

Look how casually the thinking here moves from the notion of homosexual conduct as sex to homosexual conduct as - well, as being gay. It's safe to assume, I'd think, that few, if any of those business partners, scoutmasters, teachers or room-renters would be observing any sexual activity by these particular homosexuals (though the last category comes very close, which is why it is given universal exemption in housing discrimination laws). In the quote, it's not even necessary that any of those people have a partner at all. The homosexual conduct Justice Scalia is concerned about people so "openly" engaging in is living their lives without hiding their sexual orientation. Simply being gay, the way heterosexuals are straight, is to "openly engage in homosexual conduct."

The closest to "openly" engaging in conduct that could be considered sexual is when homosexuals kiss or hold hands while walking down the street. That's openly being gay, but it's not different (in the view of the people Scalia is worried about) from sodomizing your partner right there at the corner of Pico and Sepulveda.

There is no such concern about heterosexual kissing or hand-holding. More to the point, no sodomy law ever prohibited such acts. So why the difference for gays?

That difference is everything. In general, most people don't spend a lot of time imagining the sex lives of others; or when they do, it's considered impolite if not outright rude. Yet speculation like this is taken for granted when homosexuals are the subject.

It is that permissive speculation about sexual conduct that brings the bedroom right out into the open, and makes gays ripe for this kind of condemnation. It reaches its zenith of absurdity in DADT. DADT strays so far from a requirement of actual conduct that simply speaking about being gay is sufficient to have a servicemember ejected. The theory is that this shows a "propensity" to engage in homosexual conduct, and therefore a mere statement gives the military sufficient evidence of someone's unfitness.

Yet heterosexuals have a propensity to engage in heterosexual conduct - and "propensity" may be understating it for many of them. Some of their conduct will be the same kind of sodomy as homosexuals might engage in - specifically oral or anal sex. Yet for heterosexuals, we don't (as the kids say) go there.

The debate about sexual conduct is not about sexual conduct at all, but about being openly gay. It is that honesty which is objectionable. Even Peter Sprigg acknowledges that some people have a homosexual orientation. The criminal law has as little effect on that as it could have on preventing the tide from coming in. All it can do is prevent people from being honest - or, in Justice Scalia's words, of "openly" engaging in what he calls "conduct." But as we see in the debate over DADT, when honesty is a problem the law is trying to solve, there is something deeply wrong with our priorities.

There's been a lot of gloom and doom around here lately, and this morning seems like a good opportunity to look on the bright side of life.

• Both President Obama and Secretary of State Clinton spoke out against the Uganda anti-gay bill - at the National Prayer Breakfast! Obama used the word "odious" to describe it.
• Senator Orrin Hatch is open to repealing DADT.
• Colin Powell is not just open to the repeal, he now "fully supports" it.
• Gayle Haggard (wife of Ted) believes the government "should provide equality under the law" for same-sex couples, and to that end supports civil unions.

None of these is without qualifiers and wiggle-room. But every one of them goes against some pretty widely held notions about the public figure involved. It behooves us to acknowledge what each of them has said. That simple courtesy is an important aspect of progress.

OK. It doesn't come much clearer than this. Family Research Council's Peter Sprigg says homosexuals should be menaced with arrest and imprisonment. Transcript and video here. We must not let the public forget that this ugly reality-they want to make us criminals-is what lies behind these guys' insistence that they mean us no harm.

When I saw this headline in the DC Agenda (successor newspaper to the Washington Blade), Filibuster threat makes ENDA unlikely in 2010, I wondered if it could possibly be saying that LGBT activists couldn't find a single Republican to support the measure. But no, it means that even assuming a few mostly northeastern GOP senators were on board, enough Democrats would vote no to defeat the non-discrimination act. In other words, even if the Democrats had kept their Senate supermajority, it wouldn't have been enough.

"The Human Rights Campaign, National Gay & Lesbian Task Force, and National Center for Transgender Equality - three leading groups working on ENDA - say they are confident the House of Representatives will pass ENDA in the summer or early fall. ... But in the Senate, LGBT civil rights lobbyists have been reluctant to reveal the findings of their highly confidential head counts, including leanings of the 17 Senate Democrats that have not signed on as co-sponsors. Among them are Sens. Jim Webb and Mark Warner, both of Virginia."

A gay non-discrimination act was first introduced in 1974 when Bella Abzug and Ed Koch were in Congress, and it still can't pass when Democrats have overwhelming majorities in both Houses? Majorities that are certain to shrink come November. I'd say yet again it's past time to revisit the pledges of free gay votes (and dollars) to Democrats just because they're Democrats (both Webb and Warner received support from local and national LGBT lobbies - the HRC web site still brags how it "mobilized its members to vote for U.S. Senate candidate Jim Webb"). But my beating that drum wouldn't do much good, would it.

Then again, without the vague "gender identity" add-on that could require employers to add unisex bathrooms, the odds for passage would be much greater. That's another self-inflected political wound that activists are intent on gouging deeper and deeper.

More on Jim Webb. MetroWeekly reports, "Webb...had in the past been an opponent of equal treatment for women in the military. When asked about the 'Don't Ask, Don't Tell' policy in an interview during his 2006 campaign for the U.S. Senate, Webb said, 'That's a policy that's working,' and left it at that."

So why the campaign support from the Human Rights Campaign? As long as you've got that "D" after your name, it's "don't ask, don't tell" about gay equality over at the Democratic Party's favorite free-money machine.

Jon Rauch takes a liberty with the constitutional arguments about same-sex marriage I don't think we have any more; he wants to set them aside for a moment.

We have, in fact, set them aside since they first came up explicitly in the 1970s and 80s. We've been doing nothing but setting them aside for the last thirty years. That has always been for political, not legal reasons. All of the powerful cultural misconceptions about homosexuality, embodied particularly in the criminal sodomy laws, still pervade the imaginations of the generations that grew up with them. That will inevitably affect how the constitutional arguments about full equality will be seen in the political sphere, and we have deferred to that powerful force.

But we can't set the constitutional arguments aside any more because they are front and center at an actual federal court in an actual case. The political decision about whether to raise them has been made -- for better or worse, you might say, and on that score I think Jon perfectly articulates the dilemma in his final line.

But Jon makes an assumption I think he doesn't need to make. No one can reasonably doubt that, despite its varied forms throughout history, marriage has been understood as an arrangement between one man and one woman. But for constitutional purposes, that's not the right question -- though it clearly is for the political purposes of the right. Cultures that didn't have a modern conception of sexual orientation obviously couldn't have taken into account what to do about the rights of same-sex couples. There is no bigotry in marriage laws that simply ignore a group they were unaware even existed.

But that's not the world the court is now addressing. Among the many revolutions of the 20th Century, homosexuals rejected their historical invisibility, both in the culture and in the law, and planted their feet firmly in the public world. That was an unprecedented change.

Even more important than that is the changes - under the constitution, itself - to marriage. When the Supreme Court ruled in 1965 that heterosexual married couples had a right - a constitutionally guaranteed right - to use birth control, it said something profound about the relationship between the government and individuals. The government has no legitimate business telling married couples whether they can or can't procreate, or when. That is for the couple to decide for themselves. That's what the constitution demands.

Griswold v. Connecticut recognized a changed technology of birth control, and in connection with the then emerging gay rights movement, it paved the way for the question now before the court. Whatever the history of marriage has been, what is the role of the government today with respect to same-sex couples? If procreation is not the government's business, why should the law recognize only opposite-sex couples?

Jon implies, and I agree, that California's fully equal domestic partnership law is a compromise we can live with. I think he minimizes the political calculation of Prop. 8's proponents, though, when he says the voters "gave" us those rights. The proponents knew full well that they couldn't have won in California if the initiative had taken them away. They very intentionally left the legislatively passed rights in place. That was a political choice, and a smart recognition of the many years of work we've done here to establish same-sex couples in the law.

That might be another way of saying what Jon did, but I think the emphasis is important. Domestic partnership is a political compromise that, itself, has required tremendous work. It was not the voters being benevolent in Prop. 8, it was the proponents being savvy. And that middle ground isn't always successful. Hawaii is only the most recent example where politicians view even the compromise of civil unions as too much equality.

It is that kind of politics that the equal protection clause was designed to minimize (if not entirely eliminate). Jon's political concerns are all absolutely valid ones. But we have a constitutional case now, and have to deal with that.

Setting aside the politics, is it possible for a Supreme Court decision in our favor to be the right constitutional resolution, or are we as convinced as our opponents that the constitution does not have room for this kind of equality? That is the question I am focused on. And I am concerned that if we concede the constitution, we may be conceding an important part of the politics as well.

I wish I could agree with my IGF colleague David Link that Brown v. Board of Ed, not Roe v. Wade, should be the governing precedent in the California gay marriage lawsuit-which, to remind ouselves of the stakes, seeks to impose same-sex marriage nationwide by Supreme Court order.

Alas, I cannot.

There are issues of constitutional law which come into my thinking, but let's set those aside. The more basic point is this: Just as abortion raises a fundamental question about the definition of a human person, so gay marriage raises a fundamental question about the definition of marriage. Obviously, I believe that a same-sex union can and should be regarded as a true marriage-but that is the question before the Court. In order to conclude that the unavailability of SSM deprives gay couples of an equal right to marry, the Court must conclude that a same-sex marriage is a marriage.

In Brown, no one disputed that an integrated school was in fact a school. In Loving v. Virginia, the case which overturned bans on miscegenation, some people said an interracial marriage was unnatural or immoral, but in 1967 virtually no one said it wasn't in fact a marriage. In those instances, schools and marriage were being hijacked for the extrinsic purpose of white supremacy. It was precisely because segregationists knew that an integrated school was a school, and an interracial marriage was a marriage, and for that matter a black vote was a vote, that they were so determined to exclude blacks.

(Thought experiment: imagine suggesting to a white supremacist in 1955 that blacks and whites would go to school together, sit side by side, study the same things, be treated identically-except that what blacks were getting would be called "training" instead of "education." No segregationist would have accepted that deal.)

The California gay marriage case is different. Remember, California offered (and still offers) civil unions which are marriages in all but name. In the separate-but-equal South, the intention of segregationists was to hide the reality of discrimination behind a mask of equality. In California, the public's intention was more like the opposite: hiding the reality of equality behind a mask of discrimination. All that the people of California were asking to do was retain the traditional definition of the word "marriage." They gave us everything else.

Of course, I think the people of California were wrong. I think gay couples deserve to the designation "married" and that the arguments for denying it to them are weak. David and I agree on that.

Where we disagree is over the unwisdom, as I see it, of the Supreme Court's imposing what a majority of Americans will regard as a new definition of marriage. That could cause a backlash which I think David is too casual about when he says, in effect, "They'll get used to it." Our marriages could end up in the political crosshairs for a generation or more. To tell all of America's voters that they cannot pause to think for a while before changing the very meaning (for most of them) of marriage strikes me as judicial brinksmanship of a dangerous order.

The case thus puts me in an awful bind. I can't decide which would be worse for gay equality: winning or losing.