An Unbalanced Bill

For more than a decade, liberal lawmakers have argued that federal "hate crimes" laws should be expanded to include sexual orientation among the categories that have been protected since the first such statute was enacted in the 1960s.

On Oct. 8, the House of Representatives approved the Matthew Shepard Hate Crimes Prevention Act, named for the young gay Wyoming man who was tortured and killed by thugs who now wallow in prison under life sentences. The U.S. Senate passed its version earlier this summer, and the two versions were reconciled by a conference committee.

In both the House and the Senate, this proposed hate-crimes law had been incorporated, with no hint of germaneness, into each chamber's Defense Authorization bill (numbered HR 2647 and S 1390, respectively). The latest version was passed on by the House on a 281-146 roll-call vote. Senate action will be virtually pro forma and is expected to take place soon.

Arguments against hate-crime laws often focus on the "thought crime" aspects of such legislation - noting that a criminal convicted of assault will have his punishment enhanced based upon words he said before, during, or after committing the act.

As retired Hunter College Professor Wayne Dynes once noted, hate-crime laws, if they are to be applied in a constitutional manner, must be content-neutral. He gave this example: "Countless numbers of people, aware of the unspeakable atrocities under his leadership, hated Pol Pot. This hate was surely well warranted. If one of the Pol Pot haters had killed him, would this be a hate crime? Why not?"

Dynes, editor of the Encyclopedia of Homosexuality, added: "In seeking to exculpate the killer, we would get into the question of whether some hate is 'justified' and some is not." He concluded that hate-crime prosecutions "will be used to sanction certain belief systems - systems which the enforcer would like, in some Orwellian fashion, to make unthinkable. This is not a proper use of law."

What is particularly disturbing about the Matthew Shepard Act, however, is that this bill federalizes crimes that properly belong under state or local jurisdiction. It signifies creeping encroachment of federal law on state prerogatives and the dulling of the distinction between the central government in Washington and the various state governments.

Previous federal hate-crime statutes were written when state and local authorities often looked the other way if crimes of violence were committed against members of minority groups. These laws were narrowly focused and meant specifically to prosecute crimes against victims engaged in a federally protected civil-rights activity (such as helping to register African-Americans to vote).

The current bill says the federal government can step in to prosecute a case if "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence." In other words, if a U.S. attorney dislikes an acquittal or the punishment of someone convicted under state law, he can re-open the case as a federal matter.

By Orwellian logic, this kind of re-prosecution does not violate the Constitution's prohibition on double jeopardy, because the same act becomes two separate crimes - one state and one federal.

Violent crime against any person is deplorable. Fortunately, state and local governments no longer routinely look away when crime victims belong to socially disdained groups. Hateful thoughts may be disagreeable, but they are not crimes in themselves. The crimes that result from hateful thoughts - whether vandalism, assault, or murder - are already punishable by existing statutes.

There is no good reason to expand the reach of the federal government to fight "hate crimes." That would do violence to the Constitution itself.

Small Favors (Cont.)

I stick by my limited gratitude to the White House for its oblique but helpful statement about state referenda on gay equality, and specifically (kind of) marriage.

But I'm nobody's fool. President Obama is, today, headed to New Jersey to help out Jon Corzine in a very hotly contested race that could go either way. It's not a national race, or a national issue. It's just the sort of thing polticians do in cases where their considerable presence can help in very close elections.

I wouldn't ask the President to actually speak in person in Maine (even if it's just a little further up the East Coast from New Jersey) or Washington (clear out here in the West Coast). But both of these races are at least as close as the NJ governor's race, and in one sense there's more at stake. Jon Corzine's race is of interest mostly to Jon Corzine and, indirectly, to the Democratic Party -- but only indirectly. If we lose the extremely close elections in Maine and Washington, after having lost in California, it will energize the right wing across the country more than anything else I can imagine.

On many other issues, the White House has been able to manage the right wing attacks. But not on gay equality. He has told us what we want to hear (kind of) but a speech to HRC is very different from a statement directly to voters in Maine and/or Washington. Again, he's given us a tool to use to counter the damage his existing words caused, and that's good. But the new polls are showing these races neck-and-neck, and getting people to the polls will be the deciding factor. As I've argued, the 3% or so of us who are homosexual will certainly go to the polls in those states, as will a certain number of supportive heterosexuals. But an awful lot of them don't have enough of a direct interest in the ballot initiatives to drive them to vote. Our lives and equality are at stake, but not theirs.

That is a message the President can make to voters better than we ever could. It is the one extra thing we need most from him.

Pope Ratzinger: Give Me Your Tired, Your Poor, Your Homophobes

Andrew thinks the Pope's merger talks with anti-gay Anglicans are "almost baldly political." I'd go with "dangerous."

First, this takes the Vatican's prior acceptance of married clergy from other denominations one giant step further then the church has ever gone; the Pope is actively recruiting now. I'm not sure how he'll deal with any Anglican female clergy members, though I'm not clear how many ultra-conservative Anglicans would have gone down that road. But setting that aside, this new welcome mat to a denomination that has never had a rule requiring celibate clergy exposes the church's fundamental cynicism on this archaic and harmful doctrine.

But the most interesting question for me is whether these hybrid Catholics will be more or less observant of rules like the contraception ban -- even for married couples -- than existing Catholics are. This is where the moral rubber meets the road. If the Vatican really means it when it says sex that is not open to procreation is a sin, even within heterosexual marriage, actively opening the church to denominations that aren't so morally punctilious seems to be an admission that the principle, if not the Pope, has no clothes. Does he expect Anglicans to give up contraception?

No one could reasonably think that. Even Catholics don't follow this absurd urging from the unmarried clergy. This is about -- it is only about -- filling the ranks with more explicitly homophobic members. Conservative Anglicans have lived with both married and female clergy for decades now. They have lived with reproductive choice, and never even had to think about a ban on contraception. It is gay equality that they cannot accept.

The Vatican is certainly welcome to these new believers, if that's what they can be called. But like the Republican party before it, the church will soon learn how hard it is to deal with people you are encouraging to exercise, and take pride in, their unchecked prejudice.

Apologies to Maine

I feel I have to apologize to Maine for what they're going through. Not the election itself, which is something Karl Rove's strategy of anti-gay state constitutional amendments guarantees other states, too, will have to face. Maine's voters could be the first to affirm equal marriage rights for same-sex couples, but they won't be the last by any means.

No, I ought to apologize because the politics of California's education system has now infected a perfectly innocent state. When the anti-marriage side hired California's Schubert Flint Public Affairs to handle the Yes on Question 1 campaign, they inadvertently guaranteed that our unusual education politics would come as part of the deal.

As he did in California, Frank Schubert can't stop trying to scare people with horror stories about how grade-school kids will learn about gay marriage. That question arose naturally in California, where our state Education Code does, in fact, mention the teaching of marriage and family life. We've been fighting battles over this for so long now that we take it for granted. When Schubert brought up public schools here, no one batted an eye. Of course some people would be worried about what schools would be teaching kids about marriage. We've been fighting battles like that since sex education first came up in the 1960s.

But the fit is awkward in Maine. As anyone can see in this press conference by the Speaker of the Maine House, and its former Attorney General, education in Maine is a local affair, and state law has nothing to say about teaching marriage. The current state Attorney General was unambiguous about that fundamental fact, and seems flabbergasted that the idea would even occur to anyone.

Schubert is not one to worry about the reality-based world, though. If scaring parents worked politically in California, he'll give it a whirl in Maine, too.

But the No on 1 campaign hasn't let itself get bamboozled. Schubert may not understand Maine - or need to -- but people who actually live there, and get elected there, and teach there, do. And all of them know that when it comes to marriage, Maine's schools are subject to powerful and sensible local control, with no directives from the state.

This is a senseless argument, and a cruel tactic, and Maine's voters are only suffering through it because it worked for Schubert in California. Well, Maine ain't California, and I wish the state's voters well in making sure Schubert learns that lesson.

(H/T to Pam's House Blend)

The Hobgoblin of Little Minds

It looks like the U.S. Conference of Catholic Bishops is ready to declare outright war on whatever believers still inhabit the pews. Their pastoral letter on marriage will be debated formally next month, but a preview is available. I've long since left the Catholic church (I can only take so much), but even if I were a heterosexual whose interests the church purports to protect, I think this would be the final straw for me.

The church is nothing if not consistent on sex (bad in general, good if it's "ordered" toward procreation), but this time out the Bishops seem comfortable squarely placing heterosexual couples who use contraception in the same moral position as same-sex couples. In fact, this letter may be the first time I've heard church officials explicitly employ the same language about married couples using birth control as they use about homosexuality. The letter describes contraception as an "intrinsically evil action." That's very close to the language they use about homosexuality. In fact, I think we're only "intrinsically disordered," without the "evil." The National Catholic Reporter (which is independent of the church) cites surveys showing 96% of married American Catholics use birth control, which is "within a margin of error of complete unanimity."

Is the American church ready to show American heterosexuals the same level of condescension they have previously reserved for us? That's up to them, of course. And I could be wrong about this, since I'm no expert on Catholic theology.

The condescension and theological arrogance of writing -- and thinking -- like this may be the biggest problem the church faces. Pastoral letters and other pronouncements from the Vatican seem to make a conscious effort to come from a world that Catholic believers don't live in, or maybe even recognize. As the bishops pontificate (you should pardon the word) in plummy grandiloquence about "the language of the body" and the "unitive" nature of marriage, you can almost feel the defensiveness from this famously unmarried and theoretically celibate clergy. Be sure to check out the part of the letter where the bishops explain why the Bible's description of Eve as a "helpmate" to Adam not only doesn't mean she was intended to be his inferior, but take their paternalistic case of nerves one step further to argue that the Bible also uses the original word translated as "helpmate" ("ezer") to describe God, himself. You can almost hear them cheering on Catholic women with a hearty but very self-conscious, "You go, girl!"

While the bishops and the Vatican indulge themselves in their pomposity, American Catholics continue their lives in the reality-based world. In addition to those who use contraception (i.e. pretty much everyone), 45% of American Catholics support same-sex marriage - in fact, Catholics have the highest support of any denomination; a full 62% of them support civil unions.

Ironically, that's probably a tribute to the church, itself, which has a history of social involvement, justice and intellectual engagement. Those things have taken a backseat to foolish and pedantic imagined consistencies on sex these days, but perhaps believers are willing to forgive even this and hope that it, too, will pass.

The pastoral letter will probably not change any minds. But then, it's not really intended to. That, in fact, may be the biggest problem my former church faces.

Small Favors

I'd like to speak up in favor of the White House statement on the two anti-gay referenda. It is easy to be cynical about the statement, and there is certainly no shortage of evidence to support cynicism. But it will help.

Here is the statement:


"The President has long opposed divisive and discriminatory efforts to deny rights and benefits to same-sex couples, and as he said at the Human Rights Campaign dinner, he believes 'strongly in stopping laws designed to take rights away.' Also at the dinner, he said he supports, 'ensuring that committed gay couples have the same rights and responsibilities afforded to any married couple in this country.'"

Andrew may be right that the President is not putting his weight behind us in either Maine or Washington, but the politics of this issue is not so straightforward. This one's a bank shot.

Obama is not going to support gay marriage yet. End of sentence. There is no rational or moral reason for his position, and he knows enough not to even try to offer one. It's an assertion without a foundation, and one that more than half of all Americans continue to believe.

But we have two very close elections to worry about now. One is in Maine with California's Frank Schubert at the helm again trying to terrify voters about gay marriage. Schubert is as savvy and dangerous a political flack as exists, and he'll use anything to win - including Obama's on the record statement to Rick Warren expressing his personal belief that marriage is between a man and a woman.

Obama is not going to take back his statement to Warren. But when the White House says, in an official statement, that Obama believes "strongly" in stopping laws "designed to take rights away" (as Maine's referendum is), our side is no longer defenseless when and if Schubert tries to use the President's words against us.

It is not perfect, and it is not what we need most. But it is more than the nothing Obama gave us in California.

And it is a little more than that in Washington State. A contemporaneous statement of his support for our equal rights will go a long way to help us approve Referendum 71. While the opposition is doing everything it can to make that election, too, about same-sex marriage, it is not. Washington's legislature has been working incrementally to make domestic partnership there more equal to marriage, and passed a law that does exactly what the President said - and now says again - that he supports. Again, it is not perfect, and it is not what we need most. But it is not nothing, and our side will be able to use the President's words, dated this month.

I fully understand and share the frustration of people who want more from the President. The nation has changed since Bill Clinton was in the White House. But we can't forget the fundamental lesson from the 1990s: When it comes to gay rights, it's not the principle that is most potent, it's the backlash. Clinton did not want to sign either DADT or DOMA (that's my story and I'm sticking to it). In both of those cases, he was dealing with incendiary reactions to pro-gay statements. And both were compromises to proposals that would have been worse: a complete ban on gays in the military and a constitutional amendment prohibiting gay marriage.

The nation has moved a lot on DADT and civil unions. But it hasn't moved enough yet on marriage, where 53% of Americans still haven't come around. They will. I, too, would like to see Obama lead the nation into its best instincts on this issue rather than follow its worst.

But if we can win in both Maine and Washington, I think we will have turned a corner. Obama's statement does help us some in both states, and we should use it for all it's worth.

Barney Frank is Wrong — We’re Not Like the NRA

With all due respect to Barney Frank, enough with the NRA comparisons.

In defending his dismissive remarks of the National Equality March, Frank has said we should follow the example of the most effective lobbying group in the country - the National Rifle Association - and do our lobbying work at the district level. The NRA doesn't hold marches, and, according to Frank, we shouldn't waste our time either.

Barney's wrong. First, this obscures the fact that lesbians and gay men are a very small minority. U.S. gun ownership runs between 21.6% and 50%. Every one of those people has a very direct interest in gun laws. You can't fairly compare their numbers to the 3-5% of gays and lesbians in the country. While we have an ever-increasing number of supporters who are willing to vote for our equality, their interest is indirect: justice and fairness for their friends and family, and maybe even in general. That is a tribute to them and to generations of lesbians and gay men who took the risks of coming out to try and persuade them.

What Frank assumes is that, like NRA members, our supporters would also have the single-minded dedication we do, in every congressional district in the nation, to put unified and unceasing pressure on members of congress.

There are places in the country where that might happen. But that's the second reason the NRA analogy is wrong. Those people overwhelmingly live in places were we already have the congressional support we need. It is exactly in the places where we need the help that we would have the fewest straight supporters to do what the NRA does.

That is the paradox of being, not just a minority, but an extremely small minority in a democratic nation. No one but us actually experiences the day-to-day effects of discrimination, and because we are all part of the larger public, it is hard to get our unique but intense problem onto the national agenda for a sustained period of time. A national march does that for a day or two, but already the media has moved on to - what are for them - more important issues to the public at large.

When our problems are national in scope (as they are with DADT and DOMA) we have to do things nationally to call attention to the problem. Barney Frank's prescription presupposes support in places where we need it the most and have the hardest time getting it.

It's enough to make reasonable non gun-owners mad enough to go out and join the NRA.

New March, New Movement

The Equality March was a success.

I didn't think it would be, honestly. I was worried about the lack of publicity, a sense of organizational disorganization, the tepid response from our trusted national organizations.

I was worried that the March would wind up being a few shirtless guys and a megaphone.

But I was wrong.

Thanks partly to Barack Obama deciding to speak the night before at HRC, the March brought positive national press attention to our issues. And enough people came - perhaps 200,000 from across the country - that it strengthened our sense of community and unity.

But perhaps most importantly, the March showed that we are now a different movement. We are a movement that knows what it is doing. We are a movement that will win.

The gay civil rights movement has slalomed through many iterations over the past 40 years. There were the Stonewall days, when we were trying to stop police harassment; the lesbian separatism of the 1970s; and the '90s era of identity politics, when we were determined to celebrate - and make the country accept- our distinct culture.

But the feel of the Equality March was very different.

This wasn't about outsiders seeking visibility. It was about ordinary people wondering why we weren't being treated like everyone else.

Despite the sunny weather, men weren't marching with their shirts off. There was no lesbian fire eating. No boas. This wasn't about a celebration of individual flamboyance or the acknowledgement of sub-identities. This was about showing Washington and the world that we are serious about our rights. That we will not be silent. That we will not back down.

Sure, there were groups of Christians and bears and anarchists and an amazing number of straight supporters. But by the end, the crowd mostly flowed together, with couples with children marching beside a guy in a chicken suit and everyone stopping by the White House for a photo.

Marchers carried signs that expressed rights-fatigue: "Tired of carrying signs," one said. "I got married. Why can't my moms?" said another.

We have spent the year protesting and marching thanks to the fallout over the passage of Proposition 8 last November, and all that activism shows. Even our young people are no longer new to this. We know what to say. We know what to do. We chant, sure, but mostly we walk, holding our rainbow flags high, making a statement through our peaceful presence.

There were a few celebrities, most notably Lady Gaga. But even they were about protesting, not performing. This wasn't a march to express our buying power or our party power. It was about our staying power. It was a march that said, "No matter how tired we get, how long we've been doing this, how much our feet hurt, we will stay the course."

Washington was empty over Columbus Day weekend. No Senators were looking out their windows to see the human river below. The White House was quiet. The center of DC felt almost deserted. There were none of the Pride Day crowds; no beer-swilling gawkers. No thump of dance music.

There was only a sense of determination. Of public will. Of the fierce belief that we deserve equality and if we demand it loud enough and long enough, we will get it.

The Equality March was less about who we are and more about what we can - and will - do.

The Equality March said to the country: We are not outsiders. We are Americans who were born equal. And it is time Washingon recognizes that.

Foggy, With a Chance of Disappointment

Despite good financial news from the Maine campaign for our equality, the storm clouds are gathering, in the form of "Fog."

This video from Focus on the Family (courtesy of GoodAsYou) lays out the red carpet for Maine ads using President Obama's personal belief that marriage is between a man and a woman against us.

As I said earlier, if Obama wants to help us in this single state -- Maine -- he doesn't need to ask Congress for a thing; though permission from Rahm Emanuel is probably at least as hard to come by.

But it is not entirely a matter of Obama helping us. He is on the record in a way that can and will hurt us. If he says nothing about Maine, then his comments to Rick Warren can accurately and honestly be used, as they were in California, to help convince moderate voters to repeal equal marriage rights. This is not a national issue, and he is not the President of Maine. But his lack of clarification is his consent to the anti-equality campaign to use these existing remarks as is.

The President knows this. He is the only person who can do anything about it. His silence here would be his most eloquent refutation of his expressed good intentions. That is so clear, even Focus on the Family can see it.

Street vs. Suite

Sunday's National Equality March (NEM) brought out tens of thousands (according to The Washington Post), including lots of dogs and children, with the simple purpose of demanding equality. It remains to be seen whether the rally, the AIDS vigil, and the flash protest against "Don't Ask, Don't Tell" (DADT) will be followed by productive action.

The march mixed the serious and the festive, with banners saying "Equal Justice Under Law" and "Teabaggers for Gay Rights." Placards ranged from "End the Harm from Religion-Based Bigotry and Prejudice" to "If Liza Can Marry Two Gay Men, Why Can't I Marry One?"

The messages at the rally at the U.S. Capitol were a hodgepodge. On one hand, there were strong speeches by Lt. Dan Choi and NAACP Chairman Julian Bond. On the other hand, Lady Gaga said, "This is the single most important moment of my career. And you know I love Judy Garland." (The Judy mythology refuses to die.) David Mixner spoke conspiratorially about "politicians in a back room." Urvashi Vaid described the four steps that are necessary to bring down the Patriarchy.

The NEM organizers refused to invite openly gay members of Congress to address the rally. At a news conference on Oct. 9, NEM co-director Robin McGehee said that politicians would only be welcome if they "would make a commitment over the next year to work towards legislation that would bring full federal equality." So Reps. Baldwin, Frank, and Polis are not committed to working for LGBT equality? One wonders how the organizers expect to influence Congress while overtly disdaining Barney Frank, one of its most powerful members.

The march's "no excuses" rhetoric contrasted with the cheers for President Obama at Saturday's Human Rights Campaign dinner. The President gave a fine speech, but broke no new ground-no increased pressure on Congress, no explicit statement opposing the ballot initiatives in Maine and Washington State, no stop-loss order ending discharges of gay and lesbian service members. It is easy to defend the President by noting that Congress must pass bills before he can sign them; but we need more bully in the bully pulpit. To be fair, though, for millions who watched the speech on CNN and C-SPAN, it was the first time they saw the President make such a strong statement for LGBT equality.

HRC President Joe Solmonese did his cause no good by saying last week in a letter to members, "[O]n January 19, 2017, I will...look back on many...victories that President Barack Obama made possible." While HRC probably has a detailed strategy for advancing our lengthy legislative agenda, the tone-deaf 2017 reference reinforces perceptions that HRC prioritizes Democratic Party interests over LGBT advocacy.

NEM leader Cleve Jones did no better when he denounced incrementalism as a failure mere days after the introduction in the D.C. Council of a marriage equality bill that enjoys overwhelming support and strong prospects resulting from a smart and thorough incremental strategy.

Early Sunday morning, the HRC building in D.C. was defaced with pink and black paint. Credit was claimed by Queers Against Assimilation, who told the LezGetReal blog, "HRC is run by a few wealthy elites who are in bed with corporate sponsors who proliferate militarism, heteronormativity, and capitalist exploitation." Blogger Michael Petrelis wrote approvingly of "this act of urban redecorating," which only bolstered a White House adviser who told NBC that the NEM protesters were leftist-fringe bloggers who "need to take off the pajamas, get dressed and realize that governing a closely-divided country is complicated and difficult."

Temperatures plummeted the night after the march, a reminder that sunny rallies cannot spare us the long winter of struggle to turn slogans into legislative victories. Support from cultural figures like Lady Gaga and the cast of Hair, while valuable in its own right, does not automatically translate into political success. Bills reach the floor of Congress one at a time. Passing them requires persistent engagement by people who know the process, the players, and the details of the issues. As in entertainment and sports, victory requires both passion and preparation.

The culture clash between the Joneses and the Solmoneses reflects a longstanding tension between liberationists and assimilationists, between "the streets and the suites." Some mutual respect is in order if we want to defeat the anti-gay right instead of one another.