IGF CultureWatch

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.

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.