IGF CultureWatch

Here's a good example of the sanctimonious extremism with which too many gay-rights advocates are shooting themselves in the foot.

In a recent blog post about Supreme Court mentionee Leah Ward Sears, I noted that she has recently joined the Institute for American Values, "which some have characterized as anti-gay, though it's not."

In reply, a commenter says that if you oppose gay marriage-as David Blankenhorn, IAV's president, does-you're anti-gay. In fact, you're just one step shy of "burning gays in the street".

So let's think about this. Blankenhorn favors federal civil unions if coupled with religious-liberty protections. He has repeatedly affirmed "the equal dignity of homosexual love," for instance here and here. He says IAV takes no institutional position on gay marriage.

As for same-sex parenting, his position is that all family structures are not alike and that it's best for children to be raised by their biological mother and father-but he also thinks same-sex adoptions should be allowed.

I recently did a radio talk show with a Family Research Council representative who not only denied the equal dignity of homosexual love but asserted that "homosexual relationships are on balance harmful to the people who engage in them and society as a whole." That's anti-gay. But Blankenhorn's positions, agree or disagree, are compassionate, reasonable, and shared by millions of reasonable people whose goodwill we need.

If we tell those reasonable people that they are the equivalent of gay-burners, or even of FRC, we not only flunk Basic Moral Distinctions 101, we effectively tell them they might as well sign up with the other side.

Some of them just might.

Senate Republicans are ready to bring up same-sex marriage as an issue for Supreme Court nominees. Sen. Orrin Hatch says conservatives want to avoid another Roe v. Wade, which is unobjectionable in my mind. I'd like to avoid that, too.

But what does that mean when it comes to the judicial philosophy of a Supreme Court justice? Roe v. Wade is controversial as a matter of politics in large part because it was controversial as a matter of constitutional law. It rests on the right to privacy, something not mentioned in the text of the constitution. That is something that could give reasonable people pause about how judges do their job.

But gay rights would not need to rely on any unarticulated language in the constitution. The equal protection clause is right there in black and white. There is certainly a legitimate question about its precise meaning. State court judges across the country have come to differing conclusions about how to apply it to particular cases. But it is wrong to argue that a ruling in favor of gay rights under the equal protection clause is the same kind of constitutional overreach as a ruling in favor of a right to abortion under the right to privacy.

That would be a fair discussion for the Senate to have. But I'm skeptical that there is much desire to have a fair discussion of equal protection when we're so used to the pedestrian discussion of "judicial activism" that Roe has carved into the landscape. Equal protection was not invented by judges, it was created by constitutional amendment. Gay equality is not controversial because of a flawed constitutional theory - after all, there is no Supreme Court ruling on gay relationships yet.

Any preemptive (and, in my opinion, distracting) confirmation arguments about homosexuality should be redirected to the genuine issue - not marriage but the constitution's command of equal treatment for all citizens. That, after all, is exactly what we have a Supreme Court for, if you take seriously the words carved into its front entrance: "Equal Justice Under Law."

Update: May 20

California voters on May 19 soundly defeated all of the tax hike initiatives that Equality California, with its unerring sense of wrong-headedness, had invested its "brand" in promoting. Looks like EQCA's involvement is the kiss of death for whatever position it favors on statewide ballot initatives.

California voters did pass an initiative to punish their spendthrift legislators by limiting their pay increases, but leaders of the EQCA alliance groups will probably give themselves even bigger raises in 2010 than they did after the passage of anti-gay Prop. 8.
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Equality California, the statewide alliance that so badly mismanaged efforts to defeat the Golden State's gay-marriage-banning Prop 8 last November, has a new cause. My partner just received an email from the group urging him to vote for all six California budget propositions placed on the ballot by Schwarzenegger and Democratic legislators to "raise revenue" in the wake of a severe budget crisis - a crisis caused in no small measure by huge spending increases over the past few years under said governor and legislators. From a Wall Street Journal op-ed:

Several months ago, lawmakers were forced to tackle a $42 billion deficit that stems from a 35% general fund spending increase since Republican Arnold Schwarzenegger replaced Mr. Davis. The deficit is $4 billion larger than the one that helped end Mr. Davis's political career. After wrangling over what to do, the governor and legislature struck a deal that raises income and sales taxes as well as car-registration fees. In all, the tax increases will cost Californians some $13 billion over the next three years.

The lawmakers punted the decision to enact much of the budget deal to voters in six ballot initiatives - most of which are behind in the polls by nine percentage points or more.

EQCA says it is taking no official position on the propositions but is passing along a very professionally designed argument with the "unanimous recommendations of our LGBT legislators." (They don't say how many of the four LGBT legislators are L, G, B, or T.)

Taxpayer groups oppose Prop. 1A, in particular. So why are gay-rights groups jumping on the Establishment tax-hike bandwagon? Fealty to state employee unions, in large measure. Left foot first, friends. Left foot first.

Andrew Sullivan, onetime Obama mega-fan, has credibility when he ticks off the reasons for disappointment with the President's apparent reluctance to move ahead, not just on some or most gay issues, but on every gay issue.

He might have added the Obama Administration's underwhelming support for AIDS programs, detailed here by Bob Roehr. Money quote:

President Barack Obama has proposed a trickle of new money for HIV in his fiscal year 2010 budget released May 7. That is far short of keeping pace with the growing demand for already inadequate services. ... The budget may have been the straw that broke the camel's back of the AIDS community's optimism about the new administration.

Unlike some, I've always seen Obama as a talented politician first and foremost, and so it's no surprise to see him behave politically. Two combat engagements and the most dangerous economic crisis since 1929 are not the time to put social issues on the front burner, and now he has that awkward business about torture to deal with. Even I, however, expected something, if only to show he's Mr. Change.

At least we can savor White House spokesman Robert Gibbs's effort to non-explain why Obama doesn't suspend the military's discharges of gay Arabic linguists.

We hear a lot about the virtues of traditional marriage from the right. But in South Carolina, the right is now candidly admitting that violence, too, is a longstanding heterosexual tradition -- and one that should also be protected from The Homosexuals.

South Carolina legislators introduced a bill to prevent violence in teen relationships, but when someone mentioned that the bill should include gay teens as well as straight ones, the legislature balked. The bill's sponsor, Rep. Joan Brody said, "Traditional domestic violence occurs in a man-woman, boy-girl situation."

That's what South Carolina stands for: traditional marriage and traditional domestic violence.

There are a couple of things to say about the efforts to get the White House to issue a resolution on the 40th anniversary of the Stonewall riots.

First, I suppose there is some value in trying to get the President to do something -- anything -- to recognize the fact that lesbians and gay men are engaged in a civil rights struggle on his watch. But many of us voted for this President because we believed he would actually do something to change the laws that formalize and institutionalize discrimination against us: in particular DADT and DOMA. Resolutions, like their cousin, rhetoric, are honeyed words. If we have to expend resources - and still get resistance - on mere words, what does it say about our expectations for anything substantive from the President?

Second, while Stonewall was an important symbolic event in the history of gay rights - even a "watershed" in the words of a congressional resolution - it is high time that the gay community stopped viewing it in isolation. Stonewall came almost two years after the Black Cat riots in Los Angeles had established the model of public resistance to police harassment and arrests of gay bars. That well-documented series of events in L.A., in February of 1967, may or may not have affected what happened in New York a couple of years later, but there is no doubt that Stonewall followed the rise of open gay pride that was already well-established on the opposite side of the country - and gets far more credit for this revolution than, in my opinion, it deserves.

Stonewall has become the brand name for gay rights - even here in California we have gay organizations named after it. But the Black Cat riots showed how organized L.A.'s gay community was two years before New York stole the spotlight from us.

The passage of California's anti-gay marriage Prop. 8 with the strong support of that state's African-American churches led to heated complaints by some supporters of marriage equality (including author/activist Robin Tyler, as we noted here), which were quickly met with cries of "racial scape-goating" from the politically correct crowd. The issue then died down - Mormons and white evangelicals being far easier to protest against. But the role of black churches has come to the fore again, this time in Washington, D.C., where the City Council just voted to recognize same-sex marriages from other states, and openly gay City Councilmember David Catania is preparing to introduce a bill to recognize same-sex marriages performed in the district.

Former D.C. mayor and current City Councilmember Marion Barry, an otherwise very left-liberal Democrat, is a vocal opponent of marriage equality and declared, "We may have a civil war. The black community is just adamant against this." (IGF contributing author David Boaz has more about Marion Barry, Defender of Marriage.)

According to the Washington Blade story "Barry warns of racial divide over marriage":

Barry's comments came after more than a dozen black ministers and members of their churches in D.C. and Maryland rushed out of the Council chamber following the vote [recognizing same-sex marriages performed elsewhere] and shouted their disapproval of the Council's action.

The paper goes on to note:

Statements by local ministers that they planned to work for the election defeat of Council members who supported the D.C. marriage bill prompted a church-state watchdog group to warn that it would monitor the ministers' actions. Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State, said churches could lose their tax-exempt status under federal tax law if they become involved in partisan politics.

Given the long-standing role of black churches on behalf of liberal causes and candidates, it's good to see them getting some of the same scrutiny that's been, quite rightly, focused on conservative churches involved in political action. It may be that marriage-equality advocates are finally realizing what they should have learned in California - just because religious leaders are black and Democrats doesn't require us to give them a pass when they mobilize to fight against our rights.

More. From the Wasington Examiner, Battle over gay marriage in D.C. raises questions of racial divide, quoting Bishop Harry Jackson, the leader of a black mega-church who is emerging as a national leader in the fight against gay marriage:

Black people have been silent for too long on matters of "righteousness," Jackson said. Gay marriage offers the perfect opportunity to refocus their political power.

The debate over whether the President should appoint an open lesbian to the Supreme Court is delightfully incomprehensible. I hope it keeps up.

The Gay and Lesbian Victory Fund seems to have gotten the ball rolling when they noted that Kathleen Sullivan, former dean of Stanford Law School, was a serious contender, and happened to be lesbian. Politico followed up by noting that another among the Frequently Mentioned, Pam Karlan, was also lesbian.

Seeing the opportunity to start a fight, Mark Helperin baited Republican Senator Jeff Sessions, asking what he'd think about that. Sessions said that he would not necessarily be opposed to a nominee who had "gay tendencies." As someone with gay tendencies, myself - so many that I am actually gay -- I found this pretty hopeful, despite the 1950s tinge of the articulation.

Sessions' response was entertainingly deconstructed by Jonathan Chait at TNR, then contradicted by Senator Jon Thune, who said that an openly gay justice would be "a bridge too far." Sessions then had to hide behind his party's most prejudiced constituents, confusing them with "the American People," who he believes would be "uneasy" with a lesbian. Nevertheless, he said he wants the Senate to treat every nominee fairly, "regardless of what persuasion they may have."

Focus on the Family weighed in, saying that sexual activity "should never come up" for a judicial nominee. "It's not even pertinent." The Family Research Council then entered the fray, saying that while a nominee's "personal sex life" should be irrelevant, anyone who was publicly homosexual "could impose a pro-gay ideology on the court."

The good news in all this is how it shows that the closet is a thing of the past. Despite quaint references to tendencies and persuasions, the right can no longer credibly claim that gay people should just shut up. The only remaining ground is to try and muddle the debate with images of sexual activity, which, of course, heterosexuals also engage in - and have been known to talk about.

As Jamie Kirchick has argued, when we focus on getting one of our own nominated to a prominent position, our efforts will necessarily and predictably be viewed as "cynical tokenism." That is the unfortunate legacy of identity politics.

On the other hand, neither we, nor anyone else can pretend that gay people aren't gay. It is, in fact, the consciousness of homosexuality that drives this discussion. What is unique now is that those who are comfortable talking about gay people have the advantage. This is one important way the right - and the GOP in particular -- is losing its credibility with the public. Sen. Sessions can no longer avoid having to discuss openly homosexual candidates for the Supreme Court. He seems to be dealing with this in good faith, but is still struggling with the vocabulary that every high school student speaks fluently.

Gays do not want - or intend -- to talk about their sexual activity any more than heterosexuals do . . . particularly not at a public hearing of the Senate Judiciary Committee. It is only a few lost souls who can't keep a person's sexual orientation separate from that person's private sexual conduct. Over time, they will have to get rid of that tendency.

The Obama administration and Congress may be working overtime to put the government on tax-and-deficit-fueled steroids, to extend their regulatory tentacles and grow the power of the state over us all. But outside the beltway, as IGF contributing author David Boaz writes on the Cato Institute's blog, genuine citizen activism is having an effect on state legislatures that's led to an inspiring culture shift toward liberty on two fronts: the legal use of marijuana and marriage equality. On the latter, Boaz reflects that:

[One of] the striking things about the rapid succession of [pro-marriage-equality state legislative] votes is the lack of public opposition. Conservatives have been remarkably silent, perhaps because some of them genuinely do feel less outrage about legislative action than about "judicial tyranny," and perhaps because opposition to gay marriage is getting to be embarrassing among educated people.

Concludes Boaz:

The "shift to the left" that we seem to observe on economic policy is depressing to libertarians. But that's mostly crisis-driven. When the results of more spending, more taxes, more regulation, and more money creation begin to be visible, we may see the kind of reaction that led to Proposition 13 and the election of Ronald Reagan at the end of the 1970s. Meanwhile, this cultural "shift to the left" is far more encouraging.