IGF CultureWatch

On November 2, 2010:

(1) A repeal of Prop 8, in some form, will be on the California ballot.

(2) About $60 million will have been raised in the effort to repeal Prop 8.

(3) The repeal will fail.

(4) The margin of loss for SSM advocates in California will be greater than the margin of loss in November 2008, probably in the neighborhood of 46% "yes" (for repeal) and 54% "no" (against repeal).

How likely is this scenario? Prediction #1 is clearly the direction in which SSM advocates in California seem headed. There is no enthusiasm among activists for waiting until 2012, much less 2014 or 2016. Moreover, although organizational leaders and strategists just four months ago seemed to be leaning against a 2010 repeal effort because it was too soon and would fail, the momentum has swung in favor of 2010. Even Equality California, more strategically conservative and cautious than most street activists, is leaning strongly towards it, reporting that a "majority" of those they've polled favored 2010 over 2012. The California Supreme Court's recent decision upholding Prop 8 seems to have galvanized the 2010 effort.

Prediction #2 is, if anything, a lowball estimate. SSM advocates raised just over $40 million between June and November 2008. It was a huge sum, but it will not be enough next time. It's a baseline. Given that everyone will expect a close vote, and given that everyone knows California will be the end of the beginning if SSM wins politically there, both sides will be even more highly motivated to donate once the initiative reaches the ballot. Without a presidential election to suck up contributions, more money will be available for social-issues campaigning. We should expect at least a 50% increase in the amount needed.

But it won't be enough, which is why prediction #3 will come true. Anti-SSM activists are fully aware of the stakes and are fully aware of how close the outcome may be. There are many more people who passionately oppose gay marriage than who passionately support it, even in California. This was crystal clear last November, when supporters of Prop 8 simply out-muscled us on the ground in every part of the state except a few neighborhoods in a few cities. There are areas where our side was completely unrepresented. I spoke to an organizer supporting Prop 8 who told me, "We didn't even see you guys out there." Some things can be done to reduce the gap, but the brute math is still there and won't have changed that dramatically by 2010. I also think we'll probably need one more loss at the polls in California before tacticians on our side make the proposal as broadly acceptable as possible -- for example, by including in the repeal substantial conscience protections for religious individuals and organizations. These aren't needed as a matter of law, but they are helpful as a matter of politics.

Moreover, prediction #4 will come true because the 52%-48% margin by which we lost in November was deceivingly close. Everything else being equal, the conditions were about as favorable for SSM supporters in California last November as they are likely to be for many years. They aren't likely to be as favorable in 2010. This is true for several reasons: First, 2008 was a presidential election year, when turnout is higher and when more mainstream, less ideologically committed, voters dominate. 2010 will be a gubernatorial election in the state, which means there will be a somewhat higher proportion of traditionally conservative, committed, and disciplined voters. Second, 2008 was a bad year for Republicans. 2010 will likely be a better year in general for Republicans since mid-term elections are usually good for the party out of power. Sorry to say it, but good years for Republicans are usually bad years for gay rights. Third, gay marriage was the status quo in 2008, however briefly, and meant that gay couples were actually marrying. It will not be the status quo in 2010. People have a status quo bias. Fourth, the ballot language on Prop 8 reflected the status quo by indicating that it would "eliminate rights," something Americans don't like to do. In 2010, nobody will lose existing rights if voters refuse to repeal Prop 8. The ballot language may be friendly to SSM supporters in 2010, but it can't be as friendly as it was in 2008. Fifth, supporters of SSM needed a "no" vote to prevail in 2008. In 2010, they will need a "yes" vote. There is a small built-in bias (maybe 1-2%) for "no" votes. Sixth, some voters will resent being asked to vote on something they just voted on.

The kinds of voters who are affected by these factors aren't ones heavily invested in SSM, on either side. SSM doesn't hurt them, but it doesn't directly help them or anybody they know, either. They have low stakes in the outcome, but their votes count as much as those who have high stakes. They can be moved by mild nudges that shouldn't matter in principle, like resentment over voting again so soon, or by an effective ad campaign. They may be only 5-8% of the electorate but everyone agrees they will make the difference.

The longer we wait for repeal, the more likely we'll win. This assumes that younger voters continue to support SSM, that older voters gradually get used to the idea, and that the oldest die-hard opponents succumb to certain actuarial realities over time. So, all else being equal, 2012 would more likely produce a victory for SSM than would 2010. And 2014 or 2016 would be even more likely, although gaming results that far out is hazardous because of political factors that have nothing to do with repealing Prop 8 (like whether Obama serves a second term and Republicans take back the White House in 2016).

What would be the harm in rolling the dice in 2010, even if 2012 is a better bet? We might still win in 2010, after all, which would be great. But what if we lose in 2010? We just put it back on the ballot in 2012, then 2014, then 2016, until we win.

The problem is that losing has consequences beyond the immediate loss. Initiatives -- from gathering the needed signatures to running an effective campaign to winning -- require a huge investment of money, people, and time. Such resources are finite. The $60 million or more that will be spent in 2010 could go to other things, like state and congressional elections or fighting a possible SSM repeal (Maine? Iowa?) or amendment ban in another state. Those volunteers and organizers could be doing other productive things with their time. And losing in 2010, especially if the margin is greater than in 2008, will be deflating. It will harm morale. It will scare off legislators elsewhere. And it will be taken (incorrectly) as a sign that the tide is beginning to turn against SSM, with numerous political consequences in the short term. Losing doesn't mean you start from scratch the next time you try. It means you start from scratch with a bigger political, psychological, and financial burden. Waiting until 2012 would be better, in this sense, than losing in 2010 and trying again in 2012.

The only thing that can stop the mad dash to 2010 is donors, both inside and outside California. They can refuse to fund the initiative drive, which will mean that it will fail to make the ballot. That's what I hope will happen. Supporting SSM does not mean pressing for it everywhere, at any time, by any means. It means thinking hard about the choices, the likely outcomes, and the consequences of those outcomes.

But if a repeal makes it to the ballot in 2010, we'll have no choice but to join the fight.

I think of myself as a Premium Member in the Andrew Sullivan Fan Club, but Franklin Foer's shout-out to Andrew in this TNR video ("Andrew Sullivan wrote last week that Jake Tapper is the straight guy who cares about gay rights. . . ") is for this post, where Andrew basically just linked to my post, "In Praise of Jake Tapper."

Andrew deserves all the praise and attention he gets for his terrific writing and thinking about torture, abortion, Dick Cheney, Sarah Palin, and a cornucopia of other deeply unpleasant subjects -- and I hold him almost single-handedly responsible for my own mental health for his pitch perfect taste in videos. But can a brother get some love here?

IGF occupies a very small corner of the blog world, but with Steve Miller, Jon Rauch and even some extra-added Dale Carpenter, I think we're providing color and original thought to the gay rights debate.

Plus, I kind of wanted Jake Tapper to know I'm paying attention . . . .

There is a good battle brewing in Washington state, where signatures are being gathered to repeal that state's recent domestic partnership law. A website called WhoSigned.org will make available the (statutorily public) information of who signed the petitions to repeal the law.

This is part of a larger movement in recent years to disclose the public information about who opposes legal recognition of same-sex relationships. Larry Stickney of the political-action committee Protect Marriage Washington, makes the case against disclosure:

This seems to be a typical pattern developing around the country where the homosexual lobby employs hostile, undemocratic, intimidating tactics wherever their interests or intent are challenged. . . They take the politics of personal destruction to new levels. I am a personal recipient of dozens of obscene and threatening e-mails and phone calls since we filed this.

This is a good point, and if it sounds familiar to those of us who are gay or lesbian, that's because it's exactly the way we have been treated for centuries, in various forms; imprisonment and police harassment, for example, are certainly "hostile," if not exactly "undemocratic," and while they're worse than "obscene or threatening e-mails and phone calls," they're certainly still an "intimidating tactic."

Stickney's comments show, in fact, how the cultural history of homosexuality, based on shaming us, is still at work today with a twist. As the movie, Outrage shows, there are still gay people ashamed of their own homosexuality who cling to the decaying remains of the closet. But now it is our opponents who are most loudly shouting about the need for a right to privacy. As we've come out of our closets, they're trying to construct their own.

For the record, we'd be perfectly happy if homosexuality didn't need to be a political issue. In fact, that's exactly what we're fighting for - the equality the law denies us explicitly, as in DOMA and DADT, and marriage laws that exclude us entirely. Once those are cured, I, at least, will be happy to take gay equality off the political agenda.

But until that happens, our own self-respect is on the line. And politics is not the kind of fight you can have while hiding. If Stickney and his supporters can't stand the heat of politics, they should get out of the kitchen.

The Washington Post's "God in Government" blog takes note of the dismissive response from LGBT activists to former VP Dick Cheney's recently voiced support for same-sex marriage:

The Human Rights Campaign, a gay rights group, welcomed Cheney's comments through gritted teeth.

"It is unfortunate that it took the former vice president two terms in office, two terms that were the most anti-LGBT in history, before he decided to stand up for equality," said Joe Solmonese, president of the HRC. "That being said, we welcome his voice to the table on this issue and hope the remaining right-wing opponents of marriage equality see how completely out of touch they have become."

Of course, it might have been a more effective response in terms of swaying "remaining right-wing opponents" if Solmonese had been able to restrain himself from denigrating Cheney while welcoming his support.

And by the way, was the Bush-Cheney administration really the "most anti-LGBT in history?" Bush supported a federal amendment against gay marriage that failed to pass (Cheney broke with Bush and didn't support the amendment). But Bill Clinton signed the odious Defense of Marriage Act and bragged about it in campaign ads that ran in the South. Clinton also signed legislation to ban gays from openly serving in the military ("don't ask, don't tell"); previously, the ban on homosexuals had been military policy but not federal law.

More. Reader "Bobby" comments on whether Bush/Cheney was the most anti-gay administration ever, as Solmonese claims:

Here's what Concerned Women of America (an anti-gay group) has to say:
"In his first 100 days as President, Mr. Bush:
* appointed a homosexual activist to head the White House office on AIDS;
* failed to overturn a single Clinton executive order dealing with homosexuality;
* continued the Clinton policy of issuing U.S. Department of Defense regulations to combat "anti-gay harassment" in a military that is required by law to keep homosexuals out of the armed forces;
* presided over the appointment of a liberal homosexual activist and "gays"-in the-military crusader to oversee the choice of civilian personnel at the Pentagon. ...

Is there any doubt that Solmonese is engaging in Big Lie partisanship at the expense of creating a greater bi-partisan constituency for gay legal equality? And why is the "LGBT community" generously funding him in order to do so?

San Jose (CA) Representative Mike Honda has introduced the Reuniting Families Act to allow the permanent partners of same-sex couples the same naturalization rights current law gives to married couples of the opposite sex - and it's about time. But he is running into the traditional circular reasoning that characterizes the debate over same-sex couples: some people just don't believe they're part of one another's family, and then ignore laws that recognize their relationships.

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, states the public policy difficulty: "Our whole immigration system is based on documents," she said -- documents like a marriage certificate. Without that, how can immigration officials know who is or is not a member of someone's family and who is trying to defraud the government?

That is a legitimate question - but it has an answer today for same-sex couples that it used to lack: getting married. Those who ignore history are doomed to repeat it, and this key part of the debate over Honda's bill is not a new one.

The fight over including same-sex couples within the definition of "family" got its national debut when the Carter administration convened its White House Conference on the Family in 1978. Carter soon found himself in the middle of a fight because gay rights advocates joined with others to rename it the White House Conference on Families. At the time, the formal definition of "family" was people related to one another by blood, marriage or adoption, none of which included, or reasonably could include same-sex couples. Use of the plural would avoid a complete exclusion of same-sex couples from the discussion. But the emerging religious right fought the proposed nomenclature. . . and lost. It is a loss they never got over.

Today, there are plenty of same-sex couples who have a marriage certificate. Many more have documentation from their states showing they are domestic partners or have a civil union. And that's not counting the ones whose employers provide them with domestic partner benefits and have the documentation to prove it. And some of them include a partner who could take advantage of U.S. law that applies to spouses -- but for DOMA.

It is clear that some religious groups oppose Honda's bill for its inclusion of same-sex couples. Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference, calls the gay issue "a death knell" for the bill, definitively adding, "We won't support legislation - period - that includes the Honda same-sex component." But that's no longer because people aren't sure same-sex couples are one another's family, it's because folks like Rev. Rodriguez would rather have no legislation at all than a bill that treats same-sex couples like human beings.

The vestry at All Saints Episcopal church in Pasadena has just announced that its clergy will no longer sign California marriage certificates for any couples that it marries in a religious ceremony. They are doing this as a response to the discrimination Prop. 8 added to California's constitution. According to the vestry resolution, they wish to avoid "active participation in the discriminatory system of civil marriage," which they believe 'is inconsistent with Jesus' call to strive for justice and peace among all people."

For over twenty years now, All Saints has been a national leader in the struggle for inclusion of lesbians and gay men, and particularly same-sex couples in church life. A church like All Saints has both a sacramental obligation and a moral imperative to treat homosexuals and heterosexuals equally, even if the law does not.

And this action illustrates how churches benefit by keeping church and state separate. As Timothy Hulsey once told me with the common sense that is so obvious it is often missed, same-sex marriage is, in fact, available today in all fifty states. No state does, or could, prohibit any church from marrying any two people in a religious ceremony that falls within its belief system. Whether a particular state views that marriage as legal is a matter for the state to determine. If the marriage violates criminal law related to, for example, the age of consent, the state can prosecute the crime; but criminal sanctions no longer apply to voluntary adult homosexual relationships. If a church in Virginia wishes to marry a same-sex couple, Virginia can constitutionally do nothing to stop it. Virginia can pass all the laws it wants to ignore or discourage that relationship in the civil society, but in the church's eyes that couple is as holy as any opposite-sex couple it chooses to bless.

Heterosexual couples married at All Saints will have to suffer the inconvenience of getting a secular signature on their California marriage certificate. But in return, they will have the assurance that, in the eyes of God, their marriage is on the same moral foundation as their homosexual brothers and sisters.

Republicans are getting better at talking about gay rights rather than talking around them. But you can still see a deep-seated discomfort in their stilted vocabulary.

Michael Steele, chair of the Republican National Committee, had this to say about Dick Cheney's recent sort-of comments about gay marriage, or same-sex relationships, or something along those lines:

Well, I think the vice president brings a very personal perspective to this issue and to the question of gay marriage and gay unions. And I think his comments are appropriate reflection of his family and a situation with his daughter.

You know? My view, personal view is, you know, marriage is between a man and a woman, very much in line with what the president has said. And I think that this battle should be appropriately worked out at the state level.

The states are the ones that are defining the question of marriage, and so they will be the ultimate arbiters, I think, of what constitutes marriage in a given state. So it is the appropriate reflection of the attitude and the culture of a particular community for that debate to take place. And I think the vice president has a legitimate point there.

The "legitimate point" seems to be that the GOP doesn't need to directly oppose state efforts to recognize same-sex relationships, and that is a huge step forward.

But can we stop for a second and ponder what Steele refers to as Dick Cheney's "situation with his daughter"? The situation, for those not in the know, is that Cheney's daughter is a lesbian. She has a similarly lesbian partner, and they live together, as people who have long-term relationships tend to do. My bet is they have sex sometimes. This is not "a situation," it's their life.

This is not as bad as Jeff Sessions talking about people with homosexual "tendencies," nor Cheney's inability to publicly mention gay marriage or civil unions when he intends everyone to understand those are what he is talking about. And all of these are better than George W. Bush's eight years as president -- during the 21st Century -- barely uttering the words "gay" or "lesbian," most notably absent as he was promoting an anti-gay marriage amendment to the U.S. Constitution.

The GOP is ever-so-slowly coming out of the vocabulary closet, and I wish them well. Perhaps they'll finally see how antique their arguments look when they finally phrase them in the actual words everyone else is using.

ADDENDUM: A commenter has raised the very good point about how Log Cabin Republicans fit into this. I think Steele's comments show both the magnitude of the problem Log Cabin has long faced, and the success they have had over the years. They are, in the end, trying to get better results from Republicans on gay issues, and that effort is now bearing fruit. It is, I admit, a bit churlish to criticize Republicans too much for the awkwardness with which they are -- grudgingly -- beginning to support gay equality. But that's kind of my point: the failure to use the ordinary vocubulary that the rest of the nation uses regularly to discuss gay equality -- including the word "equality" -- is what makes the GOP look so pitiful on this issue. I admire and respect Log Cabin for getting some GOPers to move away from direct opposition of state efforts toward equal rights. That's why I think these linguistic swerves and curlicues are less threatening than they have been in the past, and should be subject to a bit of ribbing.

And, to be fair, there are still enough Democrats (I'm looking at you, New York) who have the desire and the power to prevent equality in words that are pretty straightforward.

With New Hampshire now on board, there are 6 1/2 states that have (or will have by fall) lawful gay marriage. Of course I include California, where same-sex marriage is unconstitutional except for the 18,000 marriages that were entered into between the time of the Supreme Court's opinion in In Re Marriage Cases and the passage of Proposition 8.

In fact, we probably have more same-sex marriages in a state that prohibits them than even the reigning champion, Massachusetts -- and that's true even if you assume that a full 25% of our marriages were of out-of-state couples, an extremely generous margin.

To quote Shakespeare, "The course of true love never did run smooth," and the legal recognition of same-sex partners is following as erratic and meandering a path as any comic plot Shakespeare could have devised or stolen. The blessing is that we now have good reason to believe these preposterous incongruities are worth laughing about, rather than crying over.