IGF CultureWatch

It looks like the Prop. 8 trial is still going to be held under wraps while the U.S. Supreme Court determines how public a public trial can be.

This has been a longstanding purse-fight within the federal courts. Criminal trials must be public under the Sixth Amendment. The Seventh Amendment guarantees a right to a jury trial in civil cases, and while this, in connection with the rights of the press under the First Amendment, pretty obviously means civil trials, too, are public, the federal courts have bunkered themselves against too much scrutiny by anyone wielding anything more technologically sophisticated than a pen and a pad of paper.

It doesn't take much to show how comical this retrograde policy is: In the age of the internet, iPod Touch with video and YouTube, there are still people employed as "sketch artists" for courtroom proceedings. The only other place for them to ply their trade is at carnivals and seaside resorts.

While the Supreme Court (the Supreme Court, for God's sake) decides whether the trial court is ready for its close up, there are other ways to use your time productively. Ted Olson has a wonderful article in Newsweek once again articulating the fine and entirely consistent conservative argument for same-sex marriage, and pointing out how far out of their way conservatives have to go to argue anything else. Those of us who are non-liberal Democrats have always known how badly gay marriage fits into any notion of liberalism, which is part of the reason the left has had such a hard time defending it. It is far more naturally a conservative proposition, and the fact it has been mischaracterized as liberal shows how topsy-turvy the entire debate is.

And The New Yorker has an excellent background piece on the case. The section where the author accompanies gay marriage supporters going door-to-door in Orange County, California trying and win hearts and minds does a masterful job of showing how deeply the people who vote against us want to avoid hearing anything that might challenge their preconceptions and misunderstandings about homosexuality. This quote from a sixty-year old woman in an apron pretty much sums it up:

"I have grandchildren, and I've told them, 'None of you are going to be gay, and if any of you are I'm going to do everything I can to ungay you.' "

That's what this trial will be about. It'll be awfully nice to be able to see people defending that woman's side.

Whether the Prop. 8 trial is televised live, or available on YouTube or even if all we get are the transcripts of testimony, it will be valuable because the arguments against same-sex marriage can be put to the test. Few people opposed to same-sex marriage are willing to debate it in public any more, and this will allow us to see their state of the art thinking.

Yesterday's debate in New Jersey's senate illustrates the problem. (Here is a sampling of the speeches) While 20 senators voted against marriage equality, only four tried to defend that position. That's a 400% increase over what we heard in New York's debate, so there are more words to respond to, but not more arguments. You can listen to all four of those speeches, and learn no more about why it is proper for government in the modern United States to treat same-sex couples and opposite sex couples differently under the law than this: marriage has traditionally been between one man and one woman.

That isn't an argument, though, it is an assertion. A fairly true one, to be sure - though Sen. Michael Doherty inadvertently juxtaposed an argument against polygamy with a plea to look through thousands of years of history and ask people to define marriage, confident they would say "one man and one woman," and not, as so many in the upper classes in particular might have said, "one man and as many women as he wanted or could get." That was a definition of marriage, too.

But that doesn't answer the question at issue - not "why has marriage historically (and generally) been between one man and one woman," but "why, today, should it exclude people who are homosexual and want the same protections, rights and obligations under the law for their own relationships that heterosexuals have?"

All four senators spoke around this point, saying that the voters should decide. Sen. Doherty was insistent that this wasn't about prejudice, it was about "process." But, again, that's not an argument. Of course voters have voted down equality for same-sex couples, in many cases actually changing their state constitutions to clarify that same-sex couples are not entitled to equality. But the rejection of a constitutional principle for a very small minority, a principle that is generally applicable to everyone in the majority, is not only not the solution to the problem being presented, it is, itself, the problem which the equal protection clause was supposed to address. Why would an equal protection clause be necessary if it was only there to protect the majority?

The Prop. 8 case will be addressing that question head-on, and the witnesses opposing same-sex marriage will have to present the kind of arguments that the New Jersey senators were not obligated to offer. The question is a focused one: What justification does the government have for treating same-sex couples and opposite sex couples differently in light of the fact that the federal constitution does include a provision that explicitly says all citizens should be treated equally under the law?

The fact that we have historically discriminated between those groups is not an argument. The fact that many voters have a predisposition to favor their own relationships at the expense of the minority's is not an argument.

Finally, and most importantly, the fact that many religions believe that homosexuality is a sin is also not an argument - or at least not one the court will be able to properly assess. There are many religions and many theologians who think homosexuality is not a sin. No secular court could competently resolve that theological dispute. Nor should it. Ours are not religious courts, and the damage they would do if given the authority to decide what is sin and what is not, what God intends for us and what he (or she) does not is immeasurable.

What, then, is left? We will hear many people trying to discredit the court, which is to say discredit rational argument, itself and the entire idea of our constitutional system. There is no shortage of this kind of tactical and nihilistic maneuver on the right these days. But as long as we have a constitution that purports to guarantee equal protection for all citizens (and despite what some states have done, the federal constitution does still guarantee minorities equal protection of the laws), there must be someone who determines what that means in particular cases. Because that is a constitutional duty, and because it is often controversial, judges both at the trial level and at the appellate level, are required to show their work: issue their opinions publicly, lay out the evidence they considered, and explain their reasoning.

In the context of the equal protection clause in particular, this will be, by definition, anti-majoritarian. Courts must, as part of their job description, sometimes be asked to decide whether the majority is giving itself legal advantages that it is denying to a minority. Sometimes that can be justified, sometimes not. It all depends on the evidence and the reasons offered. If the court's reasoning is faulty, we'll have it before us to criticize, and possibly correct at a higher court, or over time as we refine our thinking. And as a public document, anyone is free to offer their insights about how the court reached its decision.

That is what we will all be able to do with this public trial - follow the testimony and evidence and argument for ourselves, and when the judge makes his decision, agree or disagree. Rhetoric is not enough, nor are television and radio ads, nor insinuations. The political tools that have served the anti-marriage side so well now need to be supplemented with real, assessable reasons.

Well, the Prop. 8 trial won't exactly be broadcast live, but it'll be live-ish.

The YouTube solution is an interesting compromise, sort of a tape-delay on steroids. The most important thing, to me, is to be able to see our opponents making what they believe is their very best case, not in 30-second spots or rabid emails, but in a court of law and under oath. I'm most interested to hear what legal, rational arguments they really believe support their claim that the equal protection clause of the U.S. Constitution does not apply to same-sex couples -- not to mention the right to intimate association and the right to privacy.

I don't know about the world, but I will certainly be watching.

America's conservative Christian establishment seems to be having a crisis of confidence. While gays are not the cause, we are the most visible symptom of a broader anxiety that continues to fester among the most dogmatic. Like the Vatican in the 17th Century, some church leaders have misplaced the center of the universe, and blame the rest of the world for disagreeing with their wrongheadedness.

In Adam, Eve and the Serpent, Elaine Pagels did a good job of explaining for lay readers (like me) how Christianity, in its early centuries, became obsessed with sexuality as a moral issue. Today, heterosexual Christians are more than happy to forgive themselves their sexual sins, but the echo of those ancient fears remains. The mysterious and inarguable power of sex cannot entirely be ignored. But long-established doctrines (and moral rules) about a woman's obligation to have children, developed in an age where very fallible contraception was an exception, and not the nearly universal rule. At that time many, many children did not live long, and it was not uncommon for mothers to die in childbirth.

Understandable concerns about survival in older times look different today; they overvalue procreation, holding it not just as a good thing, but as the sole moral justification for any sexual act.

But few, if any heterosexuals today feel sex needs such fine (and sometimes incoherent) sexual rulemaking. They are comfortable placing sexual pleasure in a broader context that includes intimacy, relationship, procreation and even fun.

Despite that reality, the Vatican, in particular, has stood its theoretical ground. Our sexual guardians either look the other way (on contraception) or try to finesse their dictatorial impotence by arguing that sex which is "procreative in form" is good enough for government work.

Few people appreciate how radical that new formulation is. While it was designed to patch over the historic inconsistencies of the procreation rhetoric, which look pretty frayed in the modern world, its natural (if not its intended) effect is to exclude only one group entirely from the sexual moral universe: homosexuals.

A relatively insignificant incident yesterday dramatizes how the religious obsession with sex has morphed into a religious obsession with - only - homosexuality. The Christian Anti-Defamation Commission released its Top Ten incidents of defamation, bigotry and discrimination against Christians in the U.S. last year. On that list was this monstrous anti-Christian attack:

The overt homosexual participation in Obama's presidential inaugural events by "Bishop" Vickie Eugene Robinson, the Gay Men's Chorus of Washington D. C., and a homosexual marching band.

On its face, this is not much; the gratuitous reference to Bishop Robinson's given name (which is Vicki, without the "e," and was in honor of his grandfather, Victor) is juvenile, as are the disrespectful scare quotes around his formal title. The inclusion of a gay marching band makes the complaint seem too trivial to be serious.

But it is dead serious. Think about what this "bigotry" consists of. At the inauguration of the President (it was actually an auxiliary event; Rick Warren got pride of place at the inauguration, itself), a representative of one of the nation's well-known religions was asked to speak. But that religion has a different view of God's position on homosexuality than the CADC.

It is the mere existence of differing theological views about homosexuality that is the "bigotry" here. Bishop Robinson is not, himself, being accused of attacking Christianity, nor is any such claim made about the Gay Men's Chorus or the marching band. Rather, the bare fact that they were asked to attend (and did) is "anti-Christian hatred."

The list includes nine other outrages, two more of which involve homosexuality. But this one stands out. The CADC insists that the mere presence of openly gay people is not just wrong or even intolerable, but an attack on Christianity. And the fact that other Christian religions accept openly gay people is, itself, a further affront, an exacerbating act of prejudice and defamation against the non-accepting.

The fact that there are divisions among Christian denominations - and among believers within specific denominations - is obviously troubling to those who believe that God intends sexual uniformity. That uniformity is supposed to be the center of this moral universe.

But as is so often the case, God is proving more complicated - even mysterious -- than his stewards can comprehend. Christianity's anti-sexual bias is in ruins, at least among heterosexual believers. They can distinguish between sex that deserves moral condemnation and sex that deserves applause. And the difference doesn't have to do with whether it's procreative, in form or anything else.

Having made that distinction for themselves, it's not such a great leap to see how it might apply to homosexuals, as well. Perhaps the center of God's moral universe isn't sexuality, but something else. Perhaps justice, or tolerance or faith or hope provide the axis of morality, and sex is no more than one planet spinning around that better center.

Gays are helping everyone see how that might be true. Someday, maybe, religions could even apologize to us for having got it wrong.

Over at Box Turtle Bulletin, Tim Kincaid has an interesting post ("A call for a nuanced view of religious leaders") about Joel Osteen, pastor of Houston's huge Lakewood Church, who gave an opening prayer at the inauguration of Annise Parker, the newly elected lesbian mayor of Houston. Osteen, a best-selling author whose uplifting Sunday service is broadcast nationwide, says he welcomes gays to his church but believes scripture elevates heterosexual marriage as best.

He's wrong, we may strongly believe, but Osteen, unlike Rick Warren, has never endorsed an anti-gay marriage initiative or signed an anti-gay declaration. So why was he lumped in with the worst of the religious right haters and condemned as an "anti-gay ridiculous person" and a "smiling bigot" recently by the popular leftist gay website Queerty?

As Kincaid writes of Osteen, "We can be, at times, too quick to denounce and drive away some who could in the future - or currently on some issues - be incredibly valuable allies if we only would let them." But it's so much more fun to shout "bigot bigot go away," isn't it. And, by the way, what exactly is the difference between Osteen's remarks and those of Barack Obama, who similarly cites scripture as the basis of his belief that marriage is only between a man and a woman, and gets standing ovations at HRC dinners?

The New York Times finally catches up with the backstory of the Uganda Anti-Homosexuality bill.

There is very little in the story that those of us who read Box Turtle Bulletin haven't known for months, though. Jim Burroway can't say it, but I can: The Times is graceless in failing to even mention the enormous work BTB has been doing in following this story at an exceptionally detailed (and accurate) level, and making the rest of us take notice. Perhaps the Times has, in fact, devoted some of its resources to investigating the underlying facts. But if so, it was essentially duplicating what Jim and the folks at BTB have already done, adding no more than a flourish or two of their own.

If you want to know what investigative journalism looks like today, and why the mainstream media is losing its credibility because of its own outsize vanity, visit BTB and check out their extensive and chilling archives on this story, "Slouching Towards Kampala" -- dating back to February of last year.

I'll jump in with a few new year's legislative-front predictions for 2010, which I suspect won't be well received by those who view the world through the lens of LGBT political lobbies and media. In short, don't expect much from Washington in the year ahead.

Having given us a "hate crimes" bill, Democrats feel that, for the most part, they've taken care of things. With elections approaching in November and the number of expected lost seats for Democrats mounting, purple state/district Democrats-already severely burned by succumbing to "Chicago-style" pressure to vote for an increasingly unpopular (and, in fact, truly dreadful) "health care reform" bill-have used up just about all their wiggle room among centrist and center-right voters.

Those who think that they will cast their lots for an Employment Non-Discrimination Act that includes (as LGBT activists insist it MUST) job protections for transgendered workers (ill-defined, despite the bill's verbosity on the matter, and still subject to scary charges about men in dresses exercising free-choice regarding restrooms) are delusional. It won't happen.

As for reforming or repealing the Defense of Marriage Act, sorry, that's a no-go, too. And for the same reasons-Democrats have pushed those beyond their left-liberal base as far as they dare with health care and mega-government-expanding "stimulus," and they must at least appear to be moving back toward the center. Moreover, when it comes to equality for same-sex spouses, the Obama administration has not exactly shown courage, or willingness to spend political capital (indeed, quite the opposite). Which shouldn't surprise anyone who was paying attention during the campaign.

The one possibility for progress is that repeal of "don't ask, don't tell" might be pushed through as part of a defense spending bill later this year. Given that a majority of Americans now seem to favor this, and it might be done relatively quietly, it's within the realm of possibility. That would certainly be welcome, but even John McCain was suggesting he'd consider repeal. Given what the "LGBT community" spent in terms of labor and dollars on behalf of electing this administration and Congress, and the promises we were made, it's slim pickings-if it happens at all.

As for the November elections, pollsters expect significant losses in the House (20 to 40 Democratic seats are widely mentioned) and the shift of several Democratic Senate seats to the GOP, restoring its filibuster. That's going to make the one-party strategy, which was always a terrible "all eggs in one basket" bet, even worse-for us, at least, if not for the Democratic operatives running the Democratic fundraising fronts know as LGBT rights organizations.

Anne Marie Schubert has got herself one uphill battle here in Sacramento. She is running to become a Superior Court judge, but she carries with her a burden that is unspeakably unfair. She is Frank Schubert's sister.

Her brother has become something of a brand-name among the anti-gay marriage crowd, not just in California but across the entire nation; he is the gold standard by which all future anti-gay campaigns will be judged, unbelievably successful in convincing voters that same-sex couples are intent on destroying marriage (by wanting to get married) and undermining religion, education, civil society and possibly the global financial superstructure.

Ms. Schubert seems like a fairly decent, run-of-the-mill judicial candidate with an adequate resume and what appears to be solid experience. It will be a shame if people cast their vote for or against her because of what her brother has done. She shouldn't be held responsible for the actions of other people - her brother or anyone else.

But she is a lesbian, and that's what happens to us all too frequently. People get agitated by the actions of one or two gay people somewhere or other, and then point to us as a group, claiming that we all are to blame for what those very few, very unique people have done, rather than judging us on what we, ourselves might do or be. We are tarred by associations we didn't even know we had.

That, of course, is what her brother is now making a career out of doing. The irony will be deep enough to swim in if Sacramento's mostly Democratic voters reject Ms. Schubert because of her brother's jihad. It's profoundly unfair to mischaracterize and maltreat her for her brother's actions in mischaracterizing and maltreating gay people across the country. But his actions do have consequences and spillover effects, not only for those gay people he doesn't know, but very possibly for one he actually does.

And so far I'm only talking about the damage he's done to his sister among those on the left. That's a drop in the bucket compared to what he's done in stirring up anti-gay passions (and they are passions) among the right, and particularly among religious believers who, due in large part to his efforts, are now deeply moved to vote because of concerns about homosexuality.

Of course, it's also entirely possible that Anne Marie's lesbianism and domestic partnership will be a non-issue among those voters, or that in the low profile local judicial race, her sexual orientation and marital (kind of) status will go unnoticed. That is now the best she can hope for.

Frank, too. He is trying hard to distance himself from his own venom and the natural consequences of his handiwork. "My activities in politics are mine alone - she doesn't have anything to do with them," he says.

Hey! He may have something there. My activities in politics, too, are mine alone, and I'm not responsible for the actions or beliefs of others, whether it's one employee at El Coyote Restaurant or some school in Massachusetts, or anyone who signed the absurd and irrelevant Beyond Same-Sex Marriage manifesto, or declaration, or whatever the hell it is. Or NAMBLA.

I suspect Ms. Schubert and I, and a whole lot of other lesbians and gay men, would be on exactly the same page about finding it wearying, and actually harmful to be constantly held responsible for burdens not of our own making. Perhaps she could talk to her brother about that.

Jon Rauch provides a typically excellent summary of the year in gay marriage, which I highly recommend. For my own part, I find I am focusing more and more, not on our own arguments in favor of marriage equality, but on the slow collapse of coherence among our opponents.

I am particularly fascinated by how much effort those who oppose marriage equality are putting into hiding themselves and their arguments from public scrutiny. The people in Washington state who signed petitions to get their initiative to ban even domestic partnerships on the ballot are demanding no one know their identities, and the National Organization for Marriage continues its crusade to keep the sources of its funding to itself. These do not look, to me, like people who are taking much pride in their cause.

Now the defenders of Prop. 8 in California are trying to prevent the court from televising the trial over whether Prop. 8 violates the U.S. Constitution. Like so many on the anti-gay right these days, they claim that they fear for their lives and livelihoods if they and their arguments are exposed to public scrutiny. Some witnesses say they won't even testify if the trial is televised.

I think it's time for some perspective here. Their melodramatic claims have nothing on the very real history of what lesbians and gay men have faced in order to fight for their rights. When their very existence is made criminal (as ours was), they may deserve a bit more sympathy. When police start harassing them in their daily lives (as they did for decades with gay men in particular), they'll be on to something worth complaining about. And when they can credibly claim they are beaten, maimed and even murdered for their positions (as we are, even today, for simply being homosexual), they might have a respectable position. Until then, there is simply no comparison between the imprisonment, indignity and deaths suffered in the fight for gay equality throughout generations and the few, exaggerated claims made by NOM and their fellow travelers.

People who believe they are right should be willing to own the morality of their cause, even when that means taking very real, sometimes severe risks such as going to jail, or even being killed -- neither of which anyone opposed to gay equality can truthfully claim. That's what lesbians and gay men have had to do to get where we are. Perhaps that's harsh, but I'm having a very hard time seeing how name-calling really counts as a similar sort of abuse, or how risking some loss of government funds equates with actual peril in a way that would justify refusing to air arguments in a public forum like a court of law.

As if our history weren't enough to shame the whining out of our opponents today, try this: The simple act of getting married has resulted in two men facing imprisonment for 14 years, if not more. Their marriage is criminal for violating the laws against "public indecency."

That's in Malawi, of course, but it illustrates an important point. This is how upside-down the debate is. For heterosexuals, marriage provides a level of social and constitutional privacy for their sexual activities. Once married, they are free to conduct their sexual lives as they wish, and it is rude if not illegal to intrude into those actions against their wishes. For same-sex couples, though, the simple act of getting married somehow exposes their sexual conduct in such a way that the ceremony amounts to public indecency -- without any need even to claim there was a sexual act. In Malawi, it seems, we don't even need to have sex to be indecent.

That is the set of mind we are trying to expose, and we need to do that publicly. But our opponents don't want to have a public debate. That leaves me with the distinct impression our opponents are afraid of nothing more than their own illogic. They want and need to hide because their arguments don't hold up. Of course they lack the pride and the drive of our supporters -- they don't have anything to be proud of. The discriminatory laws they are trying to maintain have no real justification; they are supported by nothing more than fear of homosexual couples.

That's a ludicrous thing to be afraid of, so they have to concoct what they think is a more respectable veneer. But, as with other forms of prejudice, in the end they are victims only of their own fevered imaginations.

That doesn't require a court's protective order; it requires some soul searching.