IGF CultureWatch

Newsweek has a nice cover story, The Conscience of a Conservative, about Ted Olson, labeled "the unlikeliest champion of gay marriage." That's because "he is one of the more prominent Republicans in Washington, and among the most formidable conservative lawyers in the country." He was, in fact, head of the Office of Legal Counsel under Ronald Reagan, and Solicitor General under George W. Bush. That overview is followed by Olson's essay, The Conservative Case for Gay Marriage, on "Why Same-Sex Marriage is an American value."

Yes, I anticipate the barrage of comments about why we should only support Democrats because Democrats are better. But what's interesting about Olson and his legal efforts on behalf of marriage equality is that it's happening despite the fact that the LGBT political establishment is pretty much run by Democrats as a fundraising operation for their party. Imagine what the political scene might look like with a little bit of outreach across the aisle.

More. Conservative commentator and Fox News contributor Margaret Hoover, on Why I'm Joining the Fight for Marriage Equality.

Today's news from the Prop. 8 trial is that discrimination against lesbians and gay men can have ill effects on their lives.

That should hardly need proving, but this is a court of law, and to opponents who are disinclined to believe much of anything we say, proof is necessary.

The witness assigned to this matter was Dr. Ilan Meyer, Associate Professor of Clinical Sociomedical Sciences at Columbia University. He has worked in this field for two decades, and has done numerous studies of the effects of stigma on gay people and same-sex couples.

After reading the liveblogs of his testimony at both Firedoglake and the Courage Campaign, I have to say that the impression I came away with is that the Clinical Sociomedical Sciences make bigger claims than they can live up to. Dr. Meyer was articulate, thoughtful and dedicated, but on cross-examination, it became clear to me that he's attempting to quantify something that is unquantifiable. In the (imperfect but amazingly timely) transcripts of his answers he constantly seemed, to me, to be tripped up by pretty obvious things.

For example, his research purports to measure how much the stress from social stigmas affects minorities, specifically lesbians and gay men. But when asked whether he could factor out stress from being a racial minority or a woman from stress due to homosexuality he was unable to do so. That would seem to be a central point for someone who's an expert on how much of a problem the stigma resulting from homosexuality is.

But I can't really blame him. No one could accurately measure, or even approximate, such a thing. But that wasn't the worst obvious knot he couldn't extricate himself from: While his conclusion is that homosexuals suffer more psychological stress than heterosexuals, his side is also presenting evidence that same-sex couples are as well-adjusted as opposite-sex couples, particularly when it comes to raising children. What rational cross-examiner would miss that glaring contradiction? We've happily left behind the days when homosexuality was considered a mental illness, and marched, banners flying, into an age where we deploy academics to calibrate the damage from stigma.

The pity is that we're caught here in a pseudo-science of our own making. At the beginning of his testimony, Dr. Meyer offered an example of the problem we face that is as compelling as it is incapable of mathematical appraisal. In the 1969 blockbuster book, Everything You Always Wanted to Know About Sex* (*But Were Afraid to Ask), this question-and-answer was included on the subject of homosexual couples:

Q: What about the happy homosexual couples who've lived together for a long time?

A: Happy homosexuals are might rare birds among the homosexual flock. Morever, the 'happy' part remains to be seen. The bitterest argument between a husband and wife is a passionate love sonnet by comparison with a dialogue between a butch and his queen. Live together? Yes. Happily? Hardly.

In 1969, this was not only not maddeningly offensive, it was the reason of its day. No homosexual now can read such words without feeling a sickening sensation. And I hope no responsible heterosexual would feel differently. Of course Dr. Meyer and others would want to answer such a charge (and so many others), which pervaded even academic thinking in those years and many more afterward. In light of the notion's wide acceptance, of course he would want to answer the accusation (and it is an accusation) in objective, scientifically verifiable ways so that there would be no doubt about its wrongness.

But that's not the way it works. You can't measure pain, or prejudice or stigma. And you can't respond to something that isn't science with something that purports to be.
I am one of those people who grew up when this book was all the rage, and I, too, in all my ignorance, eagerly looked for the parts dealing with homosexuality, mostly because there was nothing else at the time that I knew of which dealt with the subject.

Was I harmed? You bet. Did the stigma affect me? Absolutely. But I think people are wasting their time trying to assign a percentage to it, or a weight or an amplitude.

Science is the left's military, and the left misapplies it, just as the right does with our armed forces, in situations where it has no business being. Science is one of the glories of mankind, and particularly of the last two centuries. But today was not its finest moment.

One commenter on my previous post shares Dale Carpenter's cautious pessimism about our chances of winning the Prop. 8 case in the Supreme Court. The commenter is resigned to us having to live through our own Plessy v. Ferguson.

Actually, we've already done that. Losing this case wouldn't be our Plessy, it would be our second Bowers v. Hardwick. Like this case, we were represented in Bowers by some of the finest legal minds of the time, including Harvard's Lawrence Tribe. It was viewed as a perfect test case of the constitutional right to privacy. Police actually entered the bedroom of a same-sex couple and, following a universal policy by law enforcement to simply ignore prosecutions for private, consensual acts of sodomy between adults, didn't file charges. What use, then, was the law? How many criminal laws are virtually never enforced when the police actually observe the offense being committed? The case had everything going for it.

And we lost.

The Bowers opinion, in Justice Kennedy's words overturning it seventeen years later, "was not correct when it was decided, and it is not correct today."

That is the thing about thinking based on imperfect assumptions about small groups of people: Even a Supreme Court opinion doesn't need to be correct in its reasoning, it just needs to be convincing enough to pass muster at the time. The constitutional promise of equality is just that: a promise. Nothing more. Like everything else in a political world, it is subject to a psychological logic that has nothing to do with logic itself.

This has always been the concern of same-sex marriage supporters -- not that we are wrong, but that the court doesn't need to get it right the first time. The illogic of prejudice is always just enough to scrape by on; after all, the only people being harmed are a political minority. It is the majority that counts, even if the majority happens to be wrong.

My faith in American democracy is in the ability to get it right in the long term. It took time, but we saw the mistake of Plessy, and of Bowers, and ultimately aligned our law with the reason that was always, if elusively there. If we lose Perry, we'll eventually be able to correct that, too. It may not be in our generation, but the fact that we tried, and gave a court of law the ability to do the right thing will be our gift to the future.

No one will miss actually seeing the public trial of Prop. 8 more than me. As someone with a day job, I have to rely on the liveblogs and posts and tweets of others to try and determine what has gone on in the courtroom. (As I write this, I find myself affecting a Southern accent and whispering, "I have always depended on the liveblogs of strangers.") As I've said before, there's nothing like going to the original source if you're trying to judge the truth of something.

But while the Supreme Court's decision was disappointing, I think people may have been unrealistic in thinking that the ability of the public to see these proceedings would be a boon for our side. I just don't believe that viewing the trial has "the potential to change the hearts and minds of countless Americans." With the exception of us gay geeks and law dorks, did anyone seriously think this would have been a ratings bonanza, a gay equivalent of the Clarence Thomas hearings?

YouTube or no, it is the fact of having the trial that is important. You can see that in the cross-examination of our witnesses, such as George Chauncey. As in the Prop. 8 commercials, our opponents take many things out of context in order to try and mischaracterize the record. But in a court of law, the witness has the ability to put those words right back into context, and shame the questioner. That seems to have happened a number of times . . . though of course I am only reporting hearsay here, since for some reason the testimony is not being made available directly.

Eventually, the result of the trial will be made public, including the judge's assessment of all the evidence, pro and con, and his conclusions about both the law and the facts. And, for the reviewing court (and hopefully the rest of us), the entire transcript, including the exhibits, will also be available as a public record.

In that sort of context, it is harder to get away with slanders and lies than it is in a 30-second TV spot - though I fully expect slanders and lies to be released about the trial and its result. That includes the lie and slander that witnesses for the opposition will be subjected to the tortures of the damned if they are required to be seen by the very public which, up until now, they have so assiduously courted.

As Dale Carpenter suggests, the Supreme Court's decision today may be an indication that we will ultimately lose there. But requiring our opponents to tell the truth under oath and in public - that is an enormous advance for us. Asking them to justify a discriminatory law based not on little formless fears but on actual, verifiable facts, whose truth has been tested by examination and cross-examination in public - that, as they say, is priceless.

Day two of the Prop. 8 trial was History Day. Professor Nancy Cott testified about the history of marriage, and Yale's Professor George Chauncey took the stand to review the way gays have been treated historically.

Chauncey's testimony, in particular, impressed me. The irrational fear that homosexuals will molest and somehow recruit children is a regular feature of anti-gay bias. Historically, homosexuals were believed to have no control over their sexual urges, and that put innocent children at risk. While this notion neither has nor had any basis in fact, and while heterosexuals are far more likely to actually abuse children, it is a fear that has an ancient and exasperating pedigree.

After hearing Chauncey's testimony, the Prop. 8 commercials that were entered into evidence looked even more unfair and chilling, even to those of us who know all too well the groundless fear they exploit. But Chauncey's testimony helped to explain something else, something more important that today's somewhat more civilized vocabulary might obscure.

When the L.A. historian Stuart Timmons was staying with me researching his book, Gay L.A., he showed me the L.A. Times archives he could access, dating back to the early parts of the 20th Century. But he told me that at first, he wasn't sure there were many articles about homosexuality; he could not find more than a handful. He knew there were thousands of criminal cases, beatings and deaths from the court documents he had been reading. Did the mainstream press just not cover those stories? Was it a political bias at the historically very conservative L.A. Times?

Then he realized that he was searching for words and phrases he was used to using: "homosexual" and "gay" and "sexual orientation." But those were not the words journalists would have used prior to our own time.

Try it for yourself. If you have access to any database of news stories up to about the 1960s, see how many articles you can find about homosexuality using the words you know to describe sexual orientation.

Than try using these: "deviant;" "degenerate;" "pervert."

That is the way homosexuality was both understood and reported (when it was reported at all) in days gone by.

Those are the words, and the preconceptions, that would have been dominant, if not exclusive in the minds of the single demographic we can most reliably count on to vote against us today - seniors. Those who grew up in the 1930s and 40s and 50s would have, first, avoided any possible discussion of such an unpleasant and impolite subject as homosexuality. That is how the closet - the don't ask, don't tell of its day -- accommodated the times.

But denial on such a wide scale has to begin fraying at the edges. And when homosexuality did come up, as Chauncey so vividly described -- in criminal trials, bar raids, and mass arrests - the reporting had a condemnatory force built-in. The police arrested a dozen sexual perverts; a high-profile degenerate was found in a love nest; a bar owner lost his license because his business catered to deviants.

It is no surprise that so many older voters simply cannot stomach a vote for our equality; the surprise is how many have been able to get past that uniform view of our supposed depravity. That residue of our inescapable immorality shaped their entire consciousness about us.

The radically changed vocabulary and conversation about homosexuality over the last three decades is the most profound change that our opponents have to fight against. There is still no shortage of people who willfully misunderstand homosexuality. But they do that against the knowledge that other people believe differently. That was virtually non-existent in the world Chauncey described. If you can't take the immorality of all homosexuals for granted, you have to justify blanket rules somehow. We will see, soon enough, what justifications the other side has.

The Internet abhors an information vacuum. While the U.S. Supreme Court dithers about whether a public trial should be available to the public in the entire nation, or just that portion of the public who can get to the courthouse, bloggers have taken up the slack. Karen Ocamb is posting updates from the trial at her site, and the Courage Campaign has set up a special live-blog just for the trial - and they're not the only ones.

Again, I have to plead common sense to the Justices. Every judge and every lawyer knows the problem with hearsay, with one person narrating what someone else has said. When it comes to discovering the truth, there is nothing like the original source - even the most trustworthy intermediaries get in the way.

I have a great deal of faith in Karen Ocamb and Rick Jacobs. But how much better an assessment can I - or anyone else, individually - make if we can see the witnesses, and the lawyers asking the questions, directly?

Or, stated in terms I hope the Supreme Court takes into account, is the public more likely to get an accurate picture of this trial by relying on the accounts of a few individuals who are dedicated or fortunate enough to be present at the courthouse, or are we better served by being able to see the trial for ourselves?

The court could not possibly prevent these people from reporting their observations of what is going on, nor could it even consider such a thing. But the people at the courthouse in particular are highly likely to have a strong predilection toward one side or the other (I trust that the anti-marriage side, too, has some observers present). Is the court's mission of objective truth-seeking really being served by preventing the public from actually seeing the proceedings directly? Are the Justices really prepared to rule that the hearsay which is objectionable in court, is, in fact, good enough for the public at large?

This question is a new one in light of the new ways we have to communicate. Up until now, it was inconceivable that a few non-journalists would be able to present their impressions of a trial -- or, more cynically, to spin it -- to the entire interested world. Now, that is not only possible, it is likely, given the high emotions on both sides of this case. But today, we don't need to worry about whether intermediaries have an agenda or not. What they say about the original source, if it is tainted, is easily remedied by presenting the original source, itself.

The only problem, then, is in obscuring the original source. The Justices could do that. I hope they don't.

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.