IGF CultureWatch

Yesterday saw a lot of passionate rhetoric about the Obama administration's brief in the Smelt case, most of it justified.

But a reader at Andrew Sullivan's site provides some clarity that may help to expose the real problem. A DOJ career lawyer (apparently) chastises those who have been criticizing the brief for being written by a "Bush holdover." The vast majority of employees at the DOJ, as with most government entities in the U.S., are civil servants protected from the political winds that blow through the top of their organizations. In that sense, every civil servant at DOJ is a Bush (and perhaps Clinton, and perhaps Bush I) holdover.

In that correct, small criticism lies something pretty profound that I think can help us understand what most likely did happen here. It's not as benign as Andrew's correspondent says, but it's also not as diabolical or cynical as many of us originally might have thought.

The brief was almost certainly written and edited by a number of civil service lawyers, with some review by top level political appointees. Those political appointees - up to and including both Attorney General Eric Holder and President Obama, himself - are the ones who are ultimately responsible for every word.

The civil service lawyers - one of whom proudly boasts of being a Mormon on his webpage - most certainly drafted the brief, and the tone of the implicitly insulting language and arguments they used was virtually invisible to them. They were required to defend a statute, and this is what they came up with.

This can explain the silently slanderous spin of the repeated reference to same-sex marriage as a "form" of marriage. This puts linguistic air quotes around "marriage," the way the Washington Times used to do. It walls off same-sex marriage from what some heterosexuals view as "real" marriage. (See how the air quotes work?)

More insidiously, the argument that DOMA is rational because it saves the government money is something no one who has thought seriously about gay equality could even remotely imagine, much less articulate. The argument reduces a claim of civil equality to one of crass financial pleading.

And, ultimately, the fundamental position of the brief, as many have noted, is that no one is being discriminated against here because, just like their heterosexual counterparts, homosexuals have every right to marry someone of the opposite sex. This is the pro forma "equality" that is laughable today to all but the most rigid anti-gay zealots.

But how could this derision not have been noticed by the President's men? First, and most obviously, I can only imagine that no lesbian or gay men ever set eyes on this brief. Perhaps I am wrong, but I honestly can't see how any self-respecting homosexual in 2009 could possibly think this brief was acceptable. While California's Attorney General Jerry Brown has had to both defend and challenge anti-gay laws, his office has the grace and simple common sense to make sure the briefs are reviewed, if not drafted in the first place, by openly gay attorneys.

There is something deeper here, though. Obama is comfortable with the cliché political rhetoric of gay equality, but this brief shows his understanding doesn't go a centimeter deeper. Or (most generously) that his Attorney General knows only the words and not the tune. To someone who understands gay equality as little more than a set of slogans and bromides, this brief might not have looked particularly offensive.

That, at least, is the most generous understanding I am willing to indulge - that the brief was written and/or edited by civil servants with an anti-gay inclination, and reviewed by political staff who know no more about gay equality than what they read on the President's website.

The ball is now in the President's court. He owes us an apology - and not one of words, but one of action. Signing a hate crimes bill won't do it. Nor will an additional imprecation to Congress to do something about DOMA. It is he who was elected President with the explicit promise that gay equality would be on his agenda. What Presidents do is lead, and after this anything less than the kind of leadership he shows on other issues will be confirmation of a betrayal of those like me who voted for him in good faith.

At Volokh.com, constitutional law prof (and IGF contributor) Dale Carpenter's take on Obama's DOMA brief: Except for the odd flourish or two, it could have come straight from the mouth of the Bush Administration. Read it here...and weep.

There are three things worth saying about President Barak Obama's Motion to Dismiss in the case of Smelt and Hammer v. United States:

(1) It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a "form" of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money. There are some respectable arguments in this motion, and this kind of disrespect is offensive.

(2) It argues that the couple don't have standing to sue because they have not "applied for" federal benefits. While there are some federal benefits that people do, in fact, need to apply for, no heterosexual couple applies for the vast majority of federal benefits like joint income tax returns - they just rest in the knowledge that they will be there when and if they need them.

(3) Most notably, we should all beware: Premature cases ruling against us can do harm long after the original has faded from memory. The motion cites specifically to a case from 35 years ago, Baker v. Nelson, in which the Minnesota Supreme Court waved off in fourteen short paragraphs any claim that same-sex couples might have a right to marry one another, and which the U.S. Supreme Court dismissed for want of a substantial federal question. This well-intentioned case from back when the 70s were in their infancy is still being used against us (it even made an appearance in California's first same-sex marriage case, Lockyer v. City and County of San Francisco). What may not have seemed like much of a question then has certainly gained some substance over time, but the damage from that case lingers and stings to this day.

UPDATE: This only makes the DOJ approving of this brief look worse. Good lord.

Maura Flynn makes The Republican Case for Gay Marriage. She writes:

As a nation we're at a crossroads, no question. Our banking industry scrambles to escape quasi-nationalization, our auto industry is in the process of being nationalized, and we have instituted, of all things, a Car Czar (note: it took Russia roughly 300 years to stack up so many czars). If that isn't bad enough, nationalized health care is on the table again.

So as the Republic devolves and those with the means contemplate hightailing it to the Caymans, it's probably time to ask ourselves what it is to be "conservative."

One need only read the comments on this site to know that there are two fundamental schools of thought here. Some of us believe that to be conservative is to defend freedom, preserve individual liberty, and keep government small. Others believe that being conservative is about electing a government that will defend and enforce "traditional" values.

And she adds:

The Republican Party has made a huge mistake in advocating a kind of Cafeteria Constitutionalism. (I'll take some guns, no helmet laws, please, a free market, and...yuck, hold the gay marriage!). One can't legitimately invoke the Constitution to oppose federally mandated sex education, and then use the federal government to impose school prayer. Leave that fair-weather-federalism to the Left.

This is the type of argument a movement seeking legal equality for gay people ought to be making. But, of course, it's something the LGBT Democratic Party fundraisers at the Human Rights Campaign have decided isn't worth any effort.

More. Of course, maybe HRC should focus first on defending gay legal equality to the Great Liberal President to whom they pledged unconditional LBGT support during the election. From AMERICAblog: Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget. Invokes incest and marrying children.

Not working to build up support on the right is what has allowed the left to walk all over us. Eggs and baskets, boys and girls. Eggs and baskets.

More. LGBT myopia: We don't need Dick Cheney's support. LGBT progressives are confused: how would achieving marriage equality with Republican support serve the Democratic Party?

Dale Carpenter makes an excellent case for California to wait before trying to repeal Prop. 8. I'm still wrestling with this, myself, and think he makes a very strong argument. I'd even add a point he understates. The Supreme Court was quite clear that the effect of Prop. 8 was to constitutionalize the word "marriage," and nothing else. For constitutional purposes, same-sex couples in California are and must be treated equally to opposite-sex couples, except they can't - constitutionally - be called "married." As I've previously noted, that is a sophomoric use of a state constitution, and will have little, if any effect in the broader culture, where it's just easier to call same-sex couples married - including, of course, the 18,000 who actually are married. Compared to couples in states that don't have constitutional protection for their substantive equality, California same-sex couples don't have it so bad, with the notable exception of being denied every right under federal law - something California voters can do nothing in state law to change.

But there are very potent arguments in favor of 2010. Dale mentions money, and I think he's right that the $80+ million raised on both sides for Prop. 8 could be the future baseline. But maybe not. If the right didn't win an entirely Pyrrhic victory with Prop. 8, it was certainly a puny one, particularly in light of the 18,000 married couples who will be strolling our grocery store aisles and going to school soccer games in coming years. The primary reason Prop. 8 was able to succeed was because its political proponents were savvy enough to realize that the only victory they could deliver was a superficial one. The decision at the outset to leave domestic partnership alone was a strategic concession that acknowledged the base reality in California: same-sex couples are part of our cultural fabric now.

After spending $40 million with no more than that to show for it, I can certainly see the right finding greater value in spending its money on some other state. California already has more same-sex married couples in it than any other state and it's illegal here. Given those 18,000 couples, plus our domestic partner law going forward, is a fight to hold off the marginal differential really worth the right's time and resources? They could get real discrimination in some other state for a fraction of the cost.

Dale makes a good point about our side's failures in the Prop. 8 debate, but the Meet in the Middle rally in Fresno last month was an extremely strong sign that we have learned from our mistakes. This effort, along with some fine new television ads - outside the framework of any pending election - is exactly the sort of work we need to do to secure long-term gains in the general population. Trying to move Fresno closer to the support side is the best evidence I've seen that our more left-leaning leaders are getting the message that they need help talking to people who don't support gay rights for leftist reasons. Heck, even acknowledging that there are non-leftist reasons to support gay equality is a huge step forward for us.

While Dale may be right in general that 2010 will be a better year for Republicans than 2008, I'm not at all convinced that will be true in California. The collapse of California's Republican party, and its almost complete insulation from moderates, is more advanced here than in the rest of the nation, and their alienation of pro-gay voters is more deeply entrenched than non-Californians may realize. At least so far, I don't see much of a GOP resurgence here, and if our Republicans are pressed into yet another gay battle they are unequipped to deal with, it will only help to show Californians how out of touch these folks are. Remember, our GOP has, to this day, never officially even accepted domestic partnership rights.

I would certainly be content to wait until 2012, but I can see a good case for 2010 as well. Either way, I am so amazingly gratified to know that the only question for us is when, not if we'll have full marriage for all same-sex couples in California.

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.