IGF CultureWatch

I am of very mixed mind about this YouTube -- a bouncy, charming and catchy ditty about the "tiny minds" of some of our opponents. The song is about bigotry in general, and the creator of the video used the song to make his more specific point.

This is the Proposition H8 generation settling in somewhere between offensive and playful. On the one hand, I kind of like its breeziness about homophobia, which is the opposite of victimization -- certainly a major step forward for this generation. On the other hand, it's the sort of thing that gets all up in Maggie Gallagher's grill -- it's exactly what she loves to complain about.

On the third hand. . . it's the sort of thing that gets all up in Maggie's grill with some style. Unlike some of the snarling references to right wing bigotry by our spokespeople on the cable snooze shows, these kids really aren't worried that someone else's bigotry will turn them into simpering, cowering lumps of citizen-mush. Their self-respect is fully intact no matter what someone else thinks about their sexual orientation.

And the style is such a supreme contrast to the gloomy, ominous alarm of Maggie's Gathering Storm video -- which is still generating much-deserved parodies.

I would so much like the public debate to be high-toned and respectful. And much of it really is, as anyone who watched the Maine legislative debate today could see. I'd love to know if Maggie agrees about that. But a lot of public debate takes place in cultural niches that don't have any civility rules. These include, today, Miss America contests, the parking lots of Mormon temples, and now YouTube videos. I prefer the campy incivility of this video to the toxic innuendo of The Gathering Storm. But that's because I think people can live with campy incivility a lot more easily. And campy incivility is something you can grow out of. I don't think that's true of toxic innuendo.

Over at Cato, IGF contributor David Boaz notes that Sen. Jim DeMint, writing in the WSJ, makes a strong case for letting different states make different policy choices. "Centralized government infringes on individual liberty and...problems are best solved by the people or the government closest to them." If "choices look different in South Carolina, Maine and California," why, that's just fine.

Except when it's not. DeMint, of course, favors a national ban on same-sex marriage. No word from the Senator on how he squares the circle. We're waiting. This kind of blatant illogicality, in combination with a callous attitude toward the needs of gay individuals and couples, is part of what cratered Republicans' credibility.

More: Here's what else has Republicans looking toxic to young people and moderates: one of their leading national spokespeople, Joe the Plumber, calls gays "queer" and says he would not let them "anywhere near" his children. Lots of Republicans will be wincing privately at this almost refreshingly direct expression of bigotry, but let's see how many repudiate Joe Wurzelbacher publicly. Will the folks at the National Organization for Marriage, who are so quick to call gay-rights advocates out for incivility, defend Wurzelbacher as a victimized truth-teller?

He is for federalism, though. Maybe he'll come out against the Marriage Protection Amendment. Hold your breath.

There are many reasons for the increasing acceptance today of same-sex marriage among the American public, but one has received virtually none of the acclaim it deserves: the invention, in the late 1940s, of Adolph's Meat Tenderizer. The gay rights movement owes a lot to that little shaker.

Lloyd Rigler and Larry Deutsch were two ex-GIs who, after WWII, found each other -- as well as a restaurant in Los Angeles that served cheap but delicious meat. They got the chef to sell them the secret, and introduced the product with the chef's name. After making a big splash in L.A. and the west coast during the late 40s and early 50s, Adolph's Meat Tenderizer leaped onto the national stage in 1953 when Reader's Digest featured it in a consumer report. Sales skyrocketed to $20 million that year and kept going.

They kept the nature of their three decade relationship ambiguous, as convention dictated. But when Deutsch passed away in 1977, Rigler faced one of the most tangible forms of discrimination -- the economic kind. If they had been married, Rigler would have inherited the entire fortune, but since they weren't, it was subject to a 50% tax rate. Rather than accept that, Rigler let the money go to a charitable foundation named using a combined acronym from their initials - LEDLER. However, Rigler had some control over how the money would be used.

In the mid-1980s, Tom Coleman had a solid reputation among L.A.'s politicos, because of his connections with Governor Brown's office, his legal work with gay defendants, his persistence on local gay issues, and his work with the Police Commission on anti-gay discrimination. In 1985, the former L.A. City Attorney, Burt Pines suggested Tom meet with Rigler.

The two hit it off. Rigler was still steamed about the federal tax discrimination, but he was a cautious man when it came to gay issues. Tom's interest in moving the culture slowly toward acceptance of same-sex couples could not have been a better fit. More important, they were in sync on strategy. Both strongly believed that gay issues needed to be pursued as part of a larger agenda that included related issues for other groups. Rigler agreed to fund appropriate parts of Tom's work - a relationship that would last for the next two decades.

That included developing materials for a new class Tom had been asked to teach at the USC Law Center. Dean Lee Campbell had originally asked him to teach a course on gay rights, but Tom felt that would be too narrow a focus, and would appeal only to gay students - not the kind of approach he favored. Instead, he offered to develop and teach a course on the rights of unmarried couples - the first in the nation. California had two major Supreme Court cases related to that topic: the landmark palimony case of Marvin v. Marvin and City of Santa Barbara v. Adamson, recognizing that the right to form a family extended somewhat beyond the existing restrictions of blood, marriage or adoption.

At about the same time, the Municipal Elections Committee of Los Angeles was continuing to exercise its political muscle. L.A.'s 13th District included the increasingly gay area of Silverlake, and the two candidates for that office, incumbent Peggy Stevenson and challenger Mike Woo, had both been made aware of the domestic partnership ordinances in Berkeley and West Hollywood, and promised to do something similar in L.A. Woo won, and the day Woo was sworn in, Tom dropped by his new office to meet Woo's chief of staff, Larry Kaplan.

Tom suggested that Woo should not bring the proposal up immediately, but should take time to lay the political groundwork. San Francisco's failure to pave the way for its ordinance was still vivid in Tom's mind. Woo eventually agreed to convene a formal, high profile group to survey the issue, and established the Task Force on Family Diversity. Following up on the 1980 White House Conference on Families, the task force would examine how the notion of "family" had changed over many decades, particularly in the crucible of Los Angeles, which had its share of traditional families with two married parents and their children, as well as all the variations that existed, from step-parent and blended families, to childless couples to single-parent families to unmarried couples - which would obviously include same-sex couples. The question to be asked was how city policy affected all of those family forms with its conventional legal focus on families related by blood, marriage or adoption?

It is impossible to understate the importance of this for gay equality. Historically, gays had been viewed almost exclusively as sexual beings. What made them different from everyone else was their propensity to have sex with people of their own gender. Neither the criminal law nor social convention punished them for sexual orientation, per se; rather, they were outcasts because of their sexual activity. Getting rid of sodomy laws changed the formal rules, but did not change that cultural focus on homosexual sex. The closet was a social compromise allowing some degree of sexual liberty as long as a fiction of either heterosexual normality or, at the least, unmarried ambiguity were maintained. As the closet was being dismantled -- sometimes aggressively -- gays really did seem to be pushing their sex lives onto an unwilling heterosexual public.

The Task Force on Family Diversity sought to change the entire context of homosexuality from sex - always a highly charged social topic - to something more ordinary and, in fact, more mature: relationship. After all, in the normal course of a lifetime, sexual activity diminishes for some entirely pragmatic reasons, and like their heterosexual counterparts, homosexuals settle in to a more routine, less sexually charged life. Society's almost exclusive focus on the sex lives of homosexuals - "perverts" and "deviants" - left little room in the public imagination for what usually happened in homosexual people's lives.

Moreover, laws that excluded same-sex couples from the legal rights and responsibilities of family life actually reinforced the damaging, purely sexual notion of homosexuality. This had not been helped by the nearly universal association of the gay rights movement with the sexual revolution.

Both Tom and Lloyd Rigler saw gay rights - and experienced gay lives -- in the context of relationship. That also included sex, but it was not confined to it. They would need to wrestle the gay rights movement away from its origins in sexual liberty so the public could more easily see that sex was a vital part of the lives of lesbians and gay men, but it was not -- or did not need to be -- isolated from the rest of their human nature.

This would not be an easy sell either with gay activists or with the general public - who were, in the political arena, the primary target now. The Berkeley and West Hollywood domestic partnership ordinances were responses to a local political constituency. West Hollywood, in particular, had been incorporated as a city because of its much higher than average percentage of openly homosexual residents. L.A.'s Task Force had a more difficult - and far larger - political job. The Task Force would have to provide the background to show same-sex couples fit into social context that no culture had ever viewed them in before.

The White House Conference on Families, and the court cases had been helpful. Clearly, the notion of family was not a unified one, and L.A.'s demographics were a good case study for what family relationships looked like in Reagan-era America.

The LEDLER Foundation grants helped fund Tom's work as Special Consultant to the Task Force, with Christopher McCauley and Nora Baladerian as its co-chairs. The 37-member Task Force took two years to conduct public hearings, research projects, census studies, interviews and public outreach. Significantly, its membership included representatives from the religious community, as well as Republicans such as Frank Richiazzi, business representatives and law enforcement. In May of 1988, it released its final report, along with three volumes of supplemental material.

And the strategy worked. Later that year, Woo introduced the proposal as a recommendation of the Task Force, and with both political and reinforced cultural support for viewing same-sex couples in a new context, Los Angeles adopted its citywide domestic partnership ordinance with little fanfare or crossfire.

It is that hard political work that the judicial challenges to marriage laws have short-circuited. L.A.'s ordinance was passed five years before the court challenge in Hawaii set off the national firestorm over gay marriage. By that time, domestic partnership was well enough understaood in California that its legislature was already considering its first statewide domestic partnership bills. Those efforts finally succeeded in 1999 -- while the rest of the nation was still struggling to understand why gay people were bringing all these lawsuits, and didn't just settle down with someone of the opposite sex like everyone else.

By that time, Tom had lobbied the Hawaii legislature to offer domestic partnership as a compromise that would hold off a constitutional amendment; filed briefs in New York's highest court in Braschi v. Stahl Associates, a case similar to Adamson that would recognize family structures where the members were identified by their functional relationship to one another rather than just blood, marriage and adoption; argued another landmark case in California's Supreme Court on the scope of religious liberty and the rights of unmarried opposite-sex couples; and begun his work on the rights of single Americans.

His work, much of it funded by money that hadn't gone to the federal government because of Lloyd Rigler's refusal to accept a rule that treated the money of same-sex couples differently from the money of opposite-sex couples, gently forced the tectonic shift in America's view of homosexuals, putting isolated sexual acts into the broader relational context most Americans already understand for themselves. While that change is still controversial and subject to setbacks, it is as fine and substantial a legacy as any hero of this or any movement has left behind.

By the early 1980s, the sexual revolution was leaning back in bed smoking a cigarette. With the invaluable assistance of Anita Bryant in 1977, gay rights were getting national attention. That was the year the Gallup organization first began asking people about gay rights with the question, "Do you think homosexual relations between consenting adults should or should not be legal?" (It was not until 1999 that "legal" could get up to 50%.)

In the early 80s, gay activism had transformed from the angry riots prompted by police raids of gay bars in Los Angeles and New York into coherent organizations, mostly in big cities. Even television was flirting with openly gay characters in primetime shows like Soap, Dynasty and Love, Sydney.

And in 1982, the deadly constellation of symptoms first known as Gay Related Immune Deficiency was renamed AIDS. Over the next few years, this would bring more people out of the closet (some of them involuntarily) than anything history had ever seen. Those who fought or died from the disease - and particularly those who battled the political establishment that wanted so badly to ignore it - clarified for the culture, once and for all, that homosexuals existed in families and communities in every part of the nation.

It was in this context that Tom Coleman took the fight for gay equality in a direction it was only still beginning to imagine - legal rights for same-sex couples.

Up until the first experiments with domestic partnership in Berkeley and San Francisco, the struggle had been focused on, first, getting rid of laws that made homosexuals criminals (and thus, subject to arrest and imprisonment, or, at best, extortion and threats by government and private individuals), and then on enactment of some kind of non-discrimination laws, particularly in employment so people could make a living without having to hide their sexual orientation for fear of being fired.

These were protections for lesbians and gay men as individuals. But like most heterosexuals, homosexuals are prone to - and do - fall in love and form permanent relationships. With the elimination of sodomy laws in California, the neutering of section 647(a), and the administrative protections gained under the Governor's executive order - particularly at the Fair Employment and Housing Commission -- the first blocks were in place in California to allow lesbians and gay men to come out of the closet with rudimentary legal safeguards. And with the broader culture's radically changed notions of sex in place, lesbians and gay men could conduct a satisfying sex life congruent with their sexual orientation.

But the law does more than just allow people the liberty to have sex. It also encourages people to commit to one another, and rewards those who do. While gay rights rhetoric had sometimes included marriage as a goal, there was far too much bad law on the books and misunderstanding in the general culture that needed to be addressed first. Tom, himself, referred to marriage as the "penthouse" issue of the gay rights movement - you can't build, much less move into the penthouse until you've constructed the rest of the edifice.

Tom and his partner, Michael, may actually be among the world's first married same-sex couples. In 1981, they invited about 300 guests, including family, friends and co-workers, onto a boat that sailed into international waters, where a Catholic theologian and good friend performed their ceremony. The poster Tom had printed to celebrate the event said, "Recognized By No Nation -- Married In International Waters." Whether or not the marriage was "legal," it was certainly not "illegal" since no law applied.

But Tom's interest was not in marriage. He saw too clearly how much political and cultural work needed to be done before the state was ready for that. Instead, he seized on the broader issue that encompassed marriage - the notion of "family."

In 1980, Jimmy Carter's White House Conference on Families inadvertently stumbled on the culture war when it changed its original name from the conference on "Family" to the conference on "Families." In a replay of the Reformation, any questioning of the uniform doctrine was viewed as the destruction of the entire concept. In the view of the right, this linguistic change split the world in two.

That same year, California's Supreme Court had to address the same issue. In its decision in City of Santa Barbara v. Adamson, the court overturned a city single family zoning ordinance that defined "family" as those related by blood, marriage or adoption -- which allowed an unlimited number of people so related to live in the single family home - when the city cited a woman who shared her 24 room mansion with 11 adults. The court ruled that some relationships not based on blood, marriage or adoption could, in fact, be families.

Tom saw a relationship between that decision and the fledgling efforts in Northern California as the key to getting government and cultural acknowledgement of the rights of same-sex couples. Aren't their committed relationships also families?

The recommendation of a state family registry in the report of the Commission on Personal Privacy served as the debut of that idea. Then, after the failure of San Francisco's domestic partnership proposal, Berkeley was able to enact domestic partnership rights for its employees in 1984, followed the next year by the newly incorporated City of West Hollywood. Both were extremely small cities, but they showed that, taken a step at a time, local politics could be used for gay inclusion in the law.

At the time, the combined population of Berkeley and West Hollywood was less than 183,000. Los Angeles had a population of about 3.7 million. That was the kind of test domestic partnership needed.

Reading Dale Carpenter's roundup of recent same-sex marriage developments at Volokh.com, it's easy to see why some folks are talking about a tipping point. A cautionary note, though, about the much-discussed ABC-Washington Post poll showing, for the first time, more people supporting SSM than opposing it: The question doesn't allow for a third option, civil unions-which is a much better way to ask the question, since it distinguishes real SSM supporters (and opponents) from fence-sitters.

I haven't seen a three-way poll lately, but generally they're less volatile and show a sizable majority of the country to be sympathetic to same-sex unions but unsupportive of marriage. I'd wager the ABC-Post poll is an outlier. Public opinion on values issues just doesn't change that fast.

Here's something in the poll data which is revealing, if indirectly. Rising support for SSM is accompanied by increased support for legalizing illegal immigrants and decriminalizing marijuana-but also by a decline in support for gun control. A new poll from Pew confirms the turn against gun control, and adds that opposition to abortion is growing.

What does all of that have to do with gay marriage? Just this: It suggests that SSM is part of a libertarian shift in values-not a libertine shift or a flight from values altogether. The public increasingly rejects the claim that gay marriage harms a third party (as abortion does) or violates anyone's rights (as gun control arguably does).

No wonder the National Organization for Marriage and others have taken to claiming that gay marriage is a rights violation rather than a right. It's their last, best hope of persuading the public that gay marriage hurts someone. So far, the public isn't buying.

Politics is hard, even at its best. But if you're a very small minority trying to overcome a history of misunderstanding and outright prejudice, political victories may seem inconceivable. The legislative efforts to overturn state sodomy laws were victories of unimaginable importance to the gay rights movement in the 1970s, but as in California, those legislative changes came mostly through adoption of many other reforms to state laws having nothing to do with sexual crimes, reforms recommended in the Model Penal Code.

That strategy of change through coalition was not lost on Tom Coleman in California. With the demise of the criminal sodomy laws, it was finally possible for ordinary lesbians and gay men to engage in open political activity with others as homosexuals, without having to fear arrest and imprisonment simply for being homosexual - a constant threat in jurisdictions that still had sodomy laws on the books. It is worthwhile here to express my awe of the conviction and bravery of those extraordinary men and women in the 1950s and 60s who had publicly fought for gay equality irrespective of the possibility of imprisonment: heroes like Harry Hay, Morris Kight, Frank Kameny, Del Martin and Phyllis Lyons.

In the mid-seventies, there were already some individual legislators who were willing to carry bills on behalf of gay equality, but they understood these would have little chance of actually obtaining a majority vote. This was, of course, still during the time when the common vocabulary to discuss homosexuals included words like "perverts" and "deviants." When homosexuality came up in polite conversation, even our heterosexual friends could be heard referring to us as being "that way."

So political activity at the retail legislative level was still a futile effort. However, Tom had seen reports in 1975 that Governor Milton Shapp of Pennsylvania had issued an executive order to the many state agencies under his control to help end discrimination against people "because of their affectional or sexual preference." This was wholesale politics, and Tom flew to Pennsylvania to see how it would work. Gay rights supporters were taking full advantage of the order to convene meetings with heads of agencies and policymakers throughout the administration to discuss their status under the various laws, not as criminals but as citizens. This was particularly parodoxical in Pennsylvania which, unlike California, still had its criminal sodomy law on the books.

Shapp was running for President at the time, and during the campaign, Tom met him personally and asked if he would send a letter to California's then-governor, Jerry Brown, about Shapp's executive order. Shapp did so in early 1976, mentioning it had come at the request of Tom Coleman. Tom continued writing about the issue of executive action in a publication he had founded, the Sexual Law Reporter.

A couple of years later, he had his chance to act. The Municipal Elections Committee of Los Angeles was a group of well-heeled and well-connected lesbians and gay men who were willing to use their positions and money to get politicians to support gay rights. In 1979, Assembly Speaker Leo McCarthy was their guest (a tribute to MECLA's influence in 1979), and he mentioned the possibility of an executive order. Tom was at the meeting and saw that his idea was gaining traction. He immediately followed up with a letter to Jerry Brown, citing his work in the Sexual Law Reporter. Less than a month later, he got a call from the Governor's legal affairs secretary who had a draft order the Governor wanted to issue that day. He wanted to go over the wording with Tom, who offered a few suggestions. The final version was issued that afternoon. While Brown certainly deserves credit for taking this action, it's also important that he didn't take, or even seem to want, any credit for it. Instead, his press for the day focused on him and Linda Ronstadt leaving for a trip to Africa. Somehow, the executive order didn't make it into the papers.

Nevertheless, Tom's connection to the Governor's office served California's gay rights movement extremely well. Tom took advantage of the order and began working with the administration and other gay rights activists on some pending issues related to employment and housing discrimination. He also used it to help put pressure on some gubernatorial appointees to commit to changing existing anti-gay policies. The mere idea of gay activists having political pressure at that time was, itself, revolutionary. This was, at last, the exercise of politics to advance gay rights. Rather than trying to change policies through the courts, Tom and others were able to use the executive order to convince the agencies directly responsible for housing and employment discrimination that they were, in fact, sometimes part of the discrimination lesbians and gay men suffered, and that they could do something to stop that -- as the Governor had demanded.

But there was still work to be done to correct notions in the broader culture about homosexuality. Tom began lobbying the administration to create a large commission to study the issue of sexual orientation. Working with gay allies at both the state and the national level (in 1980, Governor Brown was in the race for the Democratic presidential nomination), Tom convinced the governor to create the Commission on Personal Privacy. Again, this was a coalition effort - a practical, and often necessary part of any political effort by a minority group - and the Commission hired Tom as its Executive Director. In Tom's signature fashion, the Commission dealt with a range of issues, including aging and disability.

The Commission held hearings throughout the state, and its report was issued in 1982. It made a number of recommendations that were still novel in the political landscape, but one of them provided the foundation for the gay marriage movement: a state registry for "alternate families." This was based on San Francisco's political trainwreck that year in trying to adopt the nation's first domestic partnership ordinance before the political culture was ready for it. Supervisor Harry Britt had seen the idea being explored across the bay in Berkeley, and without preparing either the local gay community or in particular then-Mayor Dianne Feinstein, Britt brought it up for a vote in the Board of Supervisors. The press caricatured it as legal protections for live-in lovers, and the mayor vetoed the ordinance because no one even knew how much such a proposal would cost the city.

The Commission on Personal Privacy's recommendation for a state family registry took San Francisco's failure and massaged it into something people could begin to think seriously about. In 1982, that put California into the history books; at that time, virtually no one else in the political world was thinking seriously about the rights of same-sex couples.

All opposition to the LGBT-inclusive federal hate crimes bill just passed by the House (Senate action is to come) isn't from right-wing crazies, although reading the LGBT media and blogs you might think so. At the libertarian-minded Reason magazine, Jacob Sullum argues:

Aside from the usual problems with hate crime laws, which punish people for their ideas by making sentences more severe when the offender harbors politically disfavored antipathies, this bill federalizes another huge swath of crimes that ought to be handled under state law, creating myriad opportunities for double jeopardy by another name. The changes would make it much easier for federal prosecutors who are displeased by an acquittal in state court to try, try again, as they did in the Rodney King and Crown Heights riot cases. They simply have to argue that the crime was committed "because of" the victim's membership in one of the listed groups…

Wendy Kaminer also made a sound civil libertarian case against such measures last year in "The Return of the Thought Police." I'm with the libertarians in opposing measures that either federalize or increase criminal penalties for acts committed with anti-gay animus; punish the crime and the degree of planning that went into it, not accompanying thoughts.

But many progressives are cheering this new expansion of federal prosecutorial power - in many cases the same voices who demonized Bush for widening federal prosecutions of alleged terror suspects. They're also lambasting critics of the bill as "bearing false witness" for suggesting that the measure will lead to the silencing of anti-gay sermonizing. I wonder if they said the same thing in Canada and Sweden. And yes, these prosecutions ultimately failed, but that doesn't mean putting pastors on trial and forcing them to defend their sermons isn't chilling.

Commenting on the surprising recognition of same-sex marriages in Iowa (which officially began this week), the film critic David Ehrenstein recently told the New York Times Sunday Styles Section that, "Iowa is apparently infested with San Francisco values."

This was irony and provocation by Ehrenstein, an often funny and certainly accomplished writer. But there are two commonly accepted claims that lie behind the humor, one of which is widely believed on the pro-SSM left, one of which is widely believed on the anti-SSM right, and both of which are wrong.

First, despite what many litigation-minded SSM supporters might like to believe, court decisions are a poor register of popular opinion. Indeed, they're valued most when they buck popular opinion. There's no evidence that Iowa has suddenly fallen in love with gay marriage, ahead of jealous Californians, New Yorkers, or even Illini. We have SSM in Iowa only because seven judges on the state supreme court say so, not because the state legislature or the people wanted it. The state provided no recognition for gay relationships: not marriage, not civil unions, not domestic partnerships. A poll on the eve of the decision found just 26% of Iowans supported gay marriage, well below the recent national average. SSM may yet survive in Iowa because the state's constitutional amendment process is so procedurally demanding and time-consuming. The evidence so far shows that people calm down about SSM if given sufficient time to adjust, and Iowans may have until at least 2012 to pass popular judgment on the issue, if ever. But make no mistake, if Dubuque could constitutionally implement its "values" as quickly as Orange County can, we'd have a ban before the fall harvest.

Second, despite what many opponents maintain, gay marriage is not a "San Francisco value." It is very nearly the opposite of a San Francisco value in the derisive, libertine sense many gay-marriage critics mean that term. Marriage is about commitment, family, and responsibility. It is not about sexual freedom, individualism, or self-expression. So gay marriage is not, contrary to what one prominent academic supporter of SSM recently wrote, a clash of "sexual liberty" and "religious liberty." We already have sexual liberty and certainly don't need marriage to practice it.

Furthermore, gay marriage is not a cause that many gay leaders in San Francisco or elsewhere easily took up. They were initially resistant and suspicious of it as mimicking heterosexual norms and limiting sexual liberation, which is what they imagined the whole gay-rights movement had been about. They were dragged to the effort by gay conservatives and others who articulated the reasons for it and by gay couples who needed and demanded it.

So gay marriage actually is much more about Dubuque than San Francisco, to the possible dismay of both.