IGF CultureWatch

Barney Frank will put the Employment Non Discrimination Act at the top of his congressional agenda for the gay and lesbian community. This is a piece of substantive legislation that has the potential to help lesbians and gay men in many places. It will test the bona fides of the leadership in Congress, who have been reluctant to do anything with the hot potato the President keeps throwing them (whenever we mention it), except to throw it back. And if/when the President signs ENDA into law, it will be the kind of achievement he has often promised but not yet delivered.

Nondiscrimination laws, particularly in the employment area, are useful tools, not because they change anyone's mind (no law can ever do that), but because they put the government's interest in equality front and center. In any functional economy, the ability to earn a living is essential, and while it is undeniably true that, for the most part lesbians and gay men who get fired from their jobs for no reason other than their homosexuality can and do usually have other options, there are states in this nation where the web of homophobia can be relied on to drive lesbians and gay men to stay in the closet. That is what feeds the still-breathing dinosaur of the closet - it can only exist as long as we agree to abide by its dictates, but if the bargain is to remain closeted in order to earn a living, a lot of people will accept the devil's deal.

So I must be clear that I support this legislation.

Still, I'd much rather have Congress spend its precious hours and resources repealing DADT and DOMA.

ENDA will aid people in states that don't have such protections, and help to force many people living in those states to face up to what they fear or dislike so much about lesbians and gay men they actually work beside. In my view, that is a good thing.

But it also forces the future on states that prefer the past when it comes to homosexuality, and that is the way cultural acrimony gradually builds into conflagration. The federal government will have enforcement authority, but that may only magnify existing resentments. Perhaps it's good to embarrass those who cannot see lesbians and gay men for who they are. It's certainly good to protect the jobs of innocent workers.
But the federal government doesn't come to this moral task with clean hands. I think it is better to eliminate the active discrimination that still resides in federal law before we extend the federal government's positive power to the states.

DADT is active discrimination. The federal government requires the military to discriminate based on sexual orientation. It's the law.

The military, though, is a unique environment (as we are so often told). It involves situations and absolute discipline that simply don't exist in civilian life. That's distinctly not true of marriage, though. DOMA does not demean a discrete segment of the population, like DADT -- it pollutes and profanes every committed same-sex couple in the United States. But like DADT, DOMA doesn't just put the federal government's stamp of approval on discrimination, it demands it.

Eliminating DADT is a matter of pure Congressional prerogative, and does not intrude into any state's existing law. The same is true of Section 3 of DOMA, which we hear cited again and again and again by the President as tying his hands. Section 2 could remain in place, insulating more conservative states from their neighbors -- the only possible, decent compromise. But Section 3 has no federalist rationale; it merely sets a national standard of discrimination against same-sex couples, and imposes that sordid standard as the national norm, even when states and common sense have long since left this form of discrimination, too, in the history books.

If ENDA is passed first, it will highlight the federal government's Do As I Say, Not As I Do hypocrisy. At its best, it can mitigate the damage to lesbians and gay men that DOMA and DADT perpetrate every day by their mere existence. The mitigation of that damage is no small thing. And, as I said, I will support it. But I won't be as enthusiastic as I would be if Congress could undo its own discriminatory laws before going into every state in the nation and throwing its compromised weight around.

From activist/blogger Michael Petrelis, on the upcoming Washington, DC, Democratic Party fundraiser being hosted by the Human Rights Campaign (HRC) and others:

It is time to close the LGBT checkbook and ATM for the Democratic Party, until such time as the party actually delivers some real legislative and presidential-driven changes and advancement for LGBT people.

But if LGBT beltway operatives didn't raise money unconditionally for the Democratic Party, what would they do?

So, it has been revealed that the National Organization for Marriage is actually, wait for it, a SUPER SECRET CONSPIRACY BETWEEN THE MORMON QUORUM OF 12 AND OPUS DEI. It was right under our noses all along.

That's an actual theory being advanced in the gay press.

The evidence is tissue-thin, but the premise itself just begs to be mocked. First of all, the "Quorum of 12" sounds like it should be running the Cylon Empire. And as for Opus Dei, personally I think self-flagellation is pretty gross, but anybody who thinks it is a good idea for gays to vilify other people by implying that they are masochists has never been to International Mr. Leather or the Folsom Street Fair. People who live in glass dungeons and all that.

Maggie Gallagher is many things, but somehow I doubt she is coordinating a bizarre alliance of secretive super-wealthy cultists in a plot to deprive us of our civil rights. She's not Lex Luthor or anything. Luthor is much better dressed, and I doubt he would ever get into a spat with Perez Hilton.

Now if you will excuse me, I need to write a letter to the President demanding that he produce his birth certificate.

So I'm trying to figure this out. When courts impose gay marriage, conservatives tell us, that's undemocratic. These decisions should be left to the political branches, which are accountable to the people.

OK, I get that. But when two states' legislatures approve gay marriage of their own free will, with no court compulsion, and when the governors sign gay marriage into law, that's...undemocratic?

Right! Here it is, in an article by one Mark Hemingway at NationalReview.com. Apparently the goalposts have moved a bit: now only plebiscites are democratic:

"Of the recent states that have legalized same-sex marriage - Iowa, Maine, and New Hampshire - none has done so through democratic means, and the actions of the courts and legislatures run against public opinion."

One can only wonder: have these people any integrity at all?

Hendrik Hertzberg has an excellent Talk of the Town piece in the June 22 edition of The New Yorker about the effect of Barack Obama's Cairo speech on the Middle East. As I was reading it, I kept thinking how much I wish that was the Barack Obama addressing gay equality.

Here is Hertzberg:

. . . he offered his audience not only ordered information, argument and context but also the catharsis of saying aloud things long unsaid. He wished, he said, to speak clearly and plainly, and that is what he did.

Compare that to the Obama who has been assigned to deal with our issues. He has said he supports equality - is, in fact, a "fierce advocate" of it - but has also said that he believes marriage is only between a man and a woman because of his religious beliefs. In fact, he has never offered anything other than religious beliefs to support this statement.

That is entirely respectable as a declaration of faith, but it is not a policy argument, except for those Christianists who believe that, like Iran's theocracy, religious leaders are capable of using scripture to determine public policy in a 21st Century nation that is composed of various sects, religions and even non-believers. We do not have a religious Supreme Leader, or a Guardian Council, and I, at least, am skeptical that this is the model most Americans would want for the United States.

Obama opposed California's Prop. 8, which suggests he is open to public policies that conflict with his religious belief. And that is of paramount importance.

But compare Obama's performance on gay equality to his performance in Cairo. He has yet to articulate any ordered information, argument and/or context, and if anyone has heard him speak clearly or plainly on homosexual equality or same-sex marriage, they're keeping it to themselves.

Is it possible that homosexual equality is harder than dealing with the Middle East? The talent this President has - of "saying aloud things long unsaid" - is exactly what this discussion has long needed from a President. Our frustration, I think, is in the fact that we elected exactly that President, and now he seems to be more afraid of dealing with us than he is of dealing with the most intense religious and political conflict in the modern world.

Jonathan Capehart makes the good argument that Congress is where the laws are made and, in the case of DADT and DOMA must be unmade - and that we should focus our efforts there. And he is surely right about that.

But what we need is leadership, and when it comes to that, Congress is no match for the President. As an institution, Congress follows, it does not lead. Nancy Pelosi and particularly Harry Reid are cautious administrators of their party's interests, and neither is in a league with the President when it comes to sheer political oratory.

But as the world could see from the Cairo speech, oratory comes from understanding, and I am not convinced Obama yet has anything but rhetoric on gay equality, the glib and uncritical soundbites that go no deeper than political convenience.

If his newfound solidarity with the A-List gays goes no further than the usual political jargon, we won't have gained anything. That is, in fact, the central problem that needs to be solved. This President has shown he can get beyond the jargon in ways that most of the political establishment cannot. But he needs to hear from people who do not speak in the jargon - and jargon is the stock-in-trade of those who claim to be our (unelected) leaders.

If you need evidence of how much of a burden homosexuals have in the political environment, I'd recommend this video of Robert Gibbs. He takes a genuine political risk on our behalf, and comes out foursquare in favor of arithmetic. As you can see, the White House is ". . . committed to a fair and accurate count of all Americans," and is currently ". . . in the midst of determining the best way to ensure that gay and lesbian couples are accurately counted."

I don't want to sound too snarky here. It is real progress that the government we pay our tax dollars to support is actually willing to count same-sex couples accurately. That certainly has not been the government's policy in the past -- which should tell you something.

The fact that they have to struggle with this -- the fact it is a problem for them -- brings them face to face, once again, with the unreasonable, irrational and mean-spirited provisions of DOMA. Someday, I hope, they will see that it's easier for all of us to get rid of it, and save us all valuable time and effort we could be devoting to real problems.

I'd also like to join Dale in extending a warm bloggy welcome to Brian Chase.

... a passionate advocate for gay civil rights, and a brilliant and accomplished lawyer who's been in the trenches of the fight. He's also very funny and an incisive analyst, as his initial post below demonstrates.

At last he's been released from the deadening clutches of the establishment!

Anybody remember the "Tax Equity For Health Plan Beneficiaries Act"? I didn't think so. It's the federal bill that would end the unfair taxation of health insurance benefits for domestic partners.

Right now, if your employer provides health insurance for your domestic partner or same-sex spouse, the insurance is taxed as income. Economist Lee Badgett estimates that this discrimination costs an average of $1069 per year and takes a collective $178 million dollars per year out of the pockets of gay and lesbian families. The Tax Equity Act would fix all of that.

The Tax Equity Act is co-sponsored by a Republican, has the backing of a huge swath of corporate America, and would provide real, concrete financial relief for same-sex couples. So when we list all of the things Obama and the Democrats in Congress aren't doing for us, why do we keep forgetting about this bill?

A hate crime bill may be psychologically satisfying, but it isn't going to do a thing to reduce hate crimes. ENDA is just going to give us another blistering fight over the political feasibility of transgender inclusion. The Democrats are so terrified of looking anti-military that they probably won't repeal Don't Ask Don't Tell until the ghost of Douglas MacArthur appears before a joint session of Congress and reveals that he was actually gay himself. So why don't we focus on something that can actually pass and would do a tremendous amount of good?

I know "tax relief" and "backed by corporate America" are dirty, dirty phrases to many on the left, but this bill really shouldn't be allowed to die on the vine.

Chris Geidner has a good, measured piece at Salon, gently making the point that the gay community does not need to be at war with the President over the Smelt brief. I agree, and urge people to read his essay.

While he does not defend the brief, though, I think he misses the key point. That's even clearer in his blog post criticizing the rhetoric John Aravosis has been wielding. It's not that he's wrong; Aravosis does exaggerate the role that the pedophilia and incest cases play in the brief, and does overstate DOJ's official statement about its role in defending federal laws. But these are disagreements about hot, political oratory, and distract from what I continue to think is the central problem with the brief - its premises.

As I've argued, the constitutional sections of this brief could not have been written but for its central, unarticulated thesis -- that all people are fundamentally heterosexual. It is only from that starting point that anyone could argue DOMA does not discriminate against lesbians and gay men. If all people really could meaningfully marry someone of the opposite sex, then DOMA's prohibition on any federal legal recognition for same-sex relationships really doesn't discriminate against anyone. It is the very model of the "neutrality" the brief continually invokes -- because the world it posits has no homosexual people in it to discriminate against.

That premise is as untenable as it is incoherent. Of course DOMA discriminates against lesbians and gay men. It was intended to discriminate against lesbians and gay men. This calumny deserves the fury that has taken hold in the gay community, and is at the very heart of the acrimony I think most of us now feel.

Everything else is beside the point. This vintage misconception (I'm really trying to restrain myself now), was publicly adopted by the administration, and we deserve nothing less than a substantive and explicit apology for it. From what I've heard and read so far, the administration has never so much as acknowledged that the brief might be reinforcing a notion that is not true - the very one that provides the foundation for the harmful notions about homosexuality gays are spending their lives trying to replace.

Like Geidner, I honestly do not think the President believes this lie. But it now has his name on it. We need to focus solely and relentlessly on getting the White House to see what it has actually told the American people.