IGF CultureWatch

1976 was a momentous year for gay rights in California. The legislature had finally passed the bill decriminalizing sexual acts between consenting adults and it went into effect on January 1. Criminal sodomy laws were one of the key legal underpinnings of the closet. The mere threat of prosecution drove most men who had been caught or entrapped to confess and enter a guilty plea, and these easy prosecutions were appealing to vice officers and prosecutors. In this post Lawrence v. Texas world, it might be hard to appreciate how important this change was, but in California it was the beginning of the modern era.

After the law went into effect, police were still able to harass gay men, but not for any underlying criminal sexual conduct. Rather, they used Penal Code section 647(a), which made it a crime to solicit or engage in "lewd and dissolute" conduct. Tom Coleman had been interested in the selective use of this section against gay men since 1972, and in 1976 he had the opportunity to challenge it. Tom was then known as one of the go-to lawyers in the barely existent gay legal community, and Don Pryor came into his office having been arrested for solicitation of oral sex with an undercover vice cop.

Again, some context is important. At the trial, Tom was told by the judge that he could not use the words "gay" or "homosexual" in the courtroom. The judge would only accept the common legal parlance at the time, "sexual pervert" or "sexual deviant." (As an experiment, try to find newspaper articles prior to the 1970s about lesbians or gay men. You will find very few that use those terms, and a couple that might use the term "homosexual." But search for "sexual pervert" or "deviant" and you will have the key to learning about our history, at least in the public record.)

Despite the vocabulary skirmish, the trial went forward. After the jury could not agree on a verdict (five jurors wanted to convict, seven to acquit), the judge ordered a mistrial. But Tom's primary theory of the case was the unconstitutionality of section 647(a) in such cases, in light of the fact that there was no underlying crime at issue any more. If oral sex is not a crime, how can asking someone to engage in it consensually be prosecuted? So rather than go through a retrial, he filed suit directly in the California Supreme Court. That case, Pryor v. Municipal Court, while not directly overturning 647(a), narrowed it in light of the new law so that it was effectively useless as a tool to harass gay men.

If this seems like an insubstantial victory in light of what is going on today, it was certainly not at the time. In tandem with the legislative decriminalization, there was very little left in California for police to use against homosexuals. As a consequence, lesbians and gay men could more confidently come out of the closet.

More important, it paved the way for more openness by lesbians and gay men in the legal field, both as lawyers and judges - which is exactly what happened in Los Angeles. Openly gay lawyers at the time were subject to being disbarred for criminal activity, and simply by being openly gay they were taking a big risk. Decriminalization was enormously important in opening the closet door, but it was 647(a) that enabled the existing prejudice of police officers, judges and even lawyers on the other side to have the upper hand over anyone even suspected of being homosexual. Making that statute a nullity was a critical step in creating a fully open and proud gay community.

That victory allowed Tom to move into working more directly in the political process, and specifically, with the office of the governor.

I've realized that my references to Thomas F. Coleman may need some background. Because I've known Tom since the 1980s, in my mind he's part of the context of the gay rights movement. But few people know the long list of his accomplishments. So I'll be doing a few posts that I hope will capture at least some of the key roles Tom has played in getting us to where we are today. It is easy to forget - or for younger people, not to even know - that charges of "judicial activism" and bigotry by gays against Christians are fairly new political tactics. Not that long ago, judges and the police were really part of the problem, and the dominant prejudice against homosexuals was so complete that many lesbians and gay men accepted it themselves. Tom is one of the people who helped us turn that around.

Tom moved to Los Angeles from Detroit at about the same time the Stonewall Riots were taking place in New York - which is to say, about two years after the Black Cat riots took place in a similar bar in Los Angeles, which helped prompt the creation of The Advocate.

He attended L.A.'s Loyola Law School and helped form one of the first gay law student groups in 1972 - with both formal recognition by the school and student group funding. To give you some sense of the era, Tom attended the Ninth Circuit's ABA meeting that summer, and, after much soul searching and anxiety, asked a fellow male student to dance at a social event - to turned heads and considerable gawking.

Gay men were, at the time, still being arrested by the police in L.A. at gay bars even after the Black Cat Tavern riots, and Tom focused on asserting that the solicitation law the police relied on was unconstitutional. He helped organize 22 individual defendants who had been arrested at the Black Pipe bar into a group who challenged the solicitation law - a legal first. In those days, police could depend on the shame of the defendants to win their convictions. By organizing the defendants Tom helped to turn the tables, to show the court that these men did not necessarily accept the prevailing notion that what they'd done was wrong.

A bit of context is in order. At the time, the L.A. police unit assigned to gay bars was referred to as the "fruit detail." A police representative provided written testimony to the legislature that gay men were prone to the seduction and molestation of adolescents and children. L.A.'s inordinately powerful police chief, Ed Davis, was publicly comparing gays to lepers spreading disease.

Tom worked with several other people to issue a report that showed gay men were being selectively prosecuted. Despite very strong political opposition, he stuck to his guns in public forums, challenging Davis - at one point having to adopt his middle initial because there was another Tom Coleman practicing law in L.A. who was concerned about being misidentified from the increasing number of press reports about Thomas F. Coleman's crusade.

Some more context. In one of Tom's cases, his client accepted a plea bargain. When the judge issued the probation terms, he included these: (1) the client could not "publicly associate with known homosexuals," and (2) he had to stay out of places where homosexuals would congregate. Tom, of course, objected since this meant his client could not, in fact, associate with his own lawyer, a "known" homosexual. The judge blithely noted Tom's objection, and Tom took his client by the arm, asking him in a loud voice to violate the terms of his probation. They went to the chambers of the supervising judge, and after some negotiation got an order from the court that such probation terms were improper.

This is the legal and social structure that existed - and needed to be changed - before anyone could even think about what rights same-sex couples were entitled to.

[Note: The non-public information here is taken from Tom's as-yet unpublished memoir, The Domino Effect.]

Jon Rauch mentions his very good article on the vital, social importance of incrementalism in gay marriage. To that, I add a hearty Amen, and urge everyone to read it immediately.

But in mentioning one of the most important strains in the original thinking about how to achieve equality - what Jon calls "the family stream," a more conservative contrast to the liberal Stonewall civil rights stream - he winds up underarguing his own point. And in so doing, he makes a mistake too many people do -- undervaluing the landmark role that California played in gay marriage by taking a series of small, cautious local steps before making equality a statewide issue. California did not start with marriage or lawsuits It started with domestic partnership.

As I argued in California's Quiet Revolution, the landscape in the 1980s included no legal rights at all for same-sex couples as couples. While we had access, in California, to explicit contractual rights under our Supreme Court's landmark decision in Marvin v. Marvin, no law anywhere - not in California, not in the U.S., and not anywhere else on earth - recognized the relationships of same-sex couples.

That changed in the early 1980s, when the City of Berkeley began its first efforts to recognize "domestic partners." The original and unprecedented laws went into place in Berkeley in 1984, followed the next year by the City of West Hollywood.

None of these ordinances could have changed California's marriage law, and they did not purport to. They simply did at the local level what local governments can do - recognized that same-sex couples existed within their jurisdictions and had the same needs that opposite-sex couples did. Since they could not get married under state law, the local governments provided what recognition and rights they could. The revolution was that it was governments that were trying to treat same-sex couples fairly.

This local movement took a giant leap forward in 1986 when Thomas F. Coleman, Nora Baladerian and Christopher McCauley got the City of Los Angeles to create its Task Force on Family Diversity - which, for full disclosure, I served on. The point of the task force was to show that the notion of "family," traditionally limited in law to relationships of blood, marriage and adoption, included people - specifically same-sex couples - who were functioning families even though they could not meet the existing legal qualifications.

That task force is, in my (obviously biased) opinion, the fountainhead of Jon's family stream. It is what led to L.A.'s adoption of a domestic partnership ordinance in 1988, and that is what helped to put domestic partnership - and the awkward legal position of same-sex couples in the law -- on the map. And it was domestic partnership that caused the very slow but inevitable movement that has landed us in today's radically different legal world for same-sex couples.

Thus, I disagree with Jon's assertion that "Right off the bat, the political activists involved in same-sex marriage eschewed Burkean principles. . . " That may have been true of an awful lot of activists on both sides, probably the vast majority. But there were some visionaries - and Tom Coleman is one of the most savvy - who saw the value of taking small steps to begin a long journey.

Connecticut has just codified its (already court-ordered) gay marriage with significant religious liberty provisions attached. Vermont did the same thing just days ago. So we can now say that coupling gay marriage with opt-outs based on religious conscience is a trend, if not a movement.

IGFer Dale Carpenter is guardedly positive about this development. Put me down as enthusiastic. What's being demonstrated here is that an Armageddon-like conflict between gay rights and religious rights not only can but will be averted. Indeed, is a win for both gay equality and religious freedom, and it douses the culture wars into the bargain. That's hitting the Trifecta.

In this article, I argue that America is getting gay marriage right by steering a moderate and incrementalist path forward, despite the best efforts of culture warriors and purists to conspire against the center. Vermont and Connecticut are more evidence that this is true.

BTW: IGF is proud to welcome Dale Carpenter as a blogger. He's so smart that every time I read him I think, "Thank God he's on our side."

Professor Dale Carpenter (who I am happy to be the first to note has just joined our blog with Joan de Fresno) has an excellent piece at another site about religious liberty protections for those opposed to same-sex marriage. He expands on the Jon Rauch/David Blankenhorn compromise, and asks some very pointed questions which, I think, boil down to a single one: How should the law deal with individual religious believers?

The First Amendment protects the "free exercise" of religion, which sounds pretty broad. But as Justice Antonin Scalia has pointed out, if this protection were too broad, it would allow any religious believer to opt out of obeying the law. If any person's action based on a religious belief is the protected exercise of religion, then few laws would be exempt from a potential personal veto. Scalia took this threat seriously in his 1990 majority opinion in Employment Division v. Smith, where the court upheld an Oregon law prohibiting drug use against a challenge from religious believers who wanted to use peyote in a sacramental exercise.

It is usually easy to determine what counts as a religious exercise in a church, and even for a religious entity such as a church-run hospital. But the law protects "sincerely held" religious beliefs, and any individual can sincerely believe pretty much anything, up to an including that

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

This is an exact quote from the trial judge who originally upheld Virginia's law prohibiting blacks and whites from marrying one another, the law the Supreme Court overturned in Loving v. Virginia.

An awful lot of people believe awfully sincerely that homosexuals are sinners, a belief that is in direct conflict with laws treating lesbians and gay men equally in civil society. I have been concerned about the scope of a personal religious veto, not just with respect to homosexuals but in general, since the early 1990s when I worked on a California Supreme Court follow-up case to Employment Division v. Smith.

Our court didn't adopt a theory I'd proposed on religious freedom, but since 1996, I confess that individual cases of abuse of free exercise have not been clogging the courts as I'd feared. That's why Douglas Laycock's eloquent letter to the Connecticut Legislature resonates with me. He is a well-known scholar of the contours of religious liberty, and notes his own support of same-sex marriage. He argues that religious opponents need some breathing room in our democracy on this issue.

This will come at some cost to same-sex couples who might have to suffer through some uncomfortable face-to-face religious opposition in public situations. That is no small thing for those of us who have encountered it. But those couples will also know that this individual's personal beliefs, whether respectfully and civilly articulated or not, won't prevent the couple from obtaining whatever the law permits and the market provides.

After many years of pondering the options, I think this is a reasonable trade-off. The law, in all its majesty, cannot prevent people from experiencing their deep feelings, and it is at its weakest when it tries. Laycock states what has become painfully obvious:

Refusing exemptions to such religious dissenters will politically empower the most demagogic opponents of same-sex marriage. It will ensure that the issue remains alive, bitter, and deeply divisive.

Laycock is convinced that there won't be a lot of objectors, and while I'm a bit more skeptical, I think it's worth a shot. Religious anxiety really is the only argument left against homosexuality, and even that is fading. If we can kill it off with kindness, I'm for it.

The controversy is this. Miss California finished second in the Miss USA contest after she gave an equivocal, factually incorrect, and inarticulate answer to a question. This alone does not distinguish her from the field. But the particular question was whether she supports SSM, which gets everyone's culture-war adrenalin flowing. She answered that it's "great" to live in a country where people are "free to choose same-sex marriage" or "the opposite marriage" - which is descriptively false but sounded as if she supported SSM as a policy matter. Then she added that in "my country" or in "my family" marriage "is between a man and a woman" - "no offense intended" to anyone.

I, for one, took no offense because I have no idea what she meant. The most likely interpretation is that she was playing to both sides, supporting same-sex marriage as a policy matter, but personally opposing it, the way one might believe a protestor has the right to burn a flag but think that flag-burning is wrong. I think just about every SSM supporter can live with that. And if it had been left there the matter might have been entirely forgotten, as the answers in all these beauty-contestant pageants are forgotten. As the second-place finisher, Miss California herself would have been forgotten, as indeed are the first-place finishers.

But the judge who asked the question, an openly gay celebrity-gossip maven, then defensively posted a video denying what nobody had yet charged, that Miss California had lost because she opposed gay marriage, which she hadn't opposed. Even this might have been forgotten if he hadn't added insult to non-injury by screeching that she had really lost because she's "a stupid b-h" who couldn't give a coherent answer to a predictable question.

By the next morning, the disappointed Miss California with no definable position on gay marriage had transmogrified into a free-speech and religious-freedom martyr who lost because she bravely stood up for her values, in "a test from God," against the gay mafia and the fork-tongued enforcers of PC orthodoxy. Never mind that the gay questioner was one of twelve judges. Never mind that the director of the Miss California organization said that he did not think she had lost because of her answer to the gay-marriage question. Never mind that she had been third going into the question round - which comes on the heels of the swimsuit round and the evening-gown round and the walk-around-the-room-and-wink round.

The whole manufactured controversy was a microcosm of the talk-show argument against gay marriage: dubious causation, exaggerated victimhood, endless repetition, and selected deployment of the most outrageous statements from the most overbearing gay advocates as if they somehow speak for gay families.

By the next afternoon, Maggie Gallagher at NRO annointed Miss California the new exemplar of traditional marriage for standing up against "lies and hatred" and all the demon bats of Hollywood.

Really? If there's a public face for Maggie's anti-SSM campaign, isn't it Levi Johnston, who appeared on Larry King Live last night, and Bristol Palin, whose traditional-family-values upbringing might be undermined? Aren't they the kind of folks who might become dangerously confused if gays wed? Adam and Steve get hitched and, next thing you know, Levi and Bristol will be off forgetting that sex, marriage, and babies go together.

This quote within Jon Rauch's post jumped out of me: "Another 37 percent said they thought the party should avoid the issue [of gay marriage]."

And there you have it: a capsule summary of the problem very small minorities have in a democracy. The majority already has all the relationship rights they want or need. It's easy for them to simply "avoid" the issue of same-sex marriage.

We don't have that luxury, but only because we're the only ones directly affected by the lack of equal rights. We don't get a day off from inequality, and if we were to avoid the issue, it would mean giving up on ourselves.

Does anyone really think, after we've come this far, that we're going to call it quits? Well over a third of these Republicans may want the whole issue to just go away, but that's because the status quo works for them. It doesn't work for us, and it is a supreme goal of this movement to make sure that heterosexuals truly understand that fundamental fact.

Frank Rich had some interesting thoughts (yes, I actually said that) in his Sunday New York Times column. He remarks on the scant reaction on the right to the Iowa and Vermont marriage victories, aside from the silly anti-gay YouTube missive from Maggie Gallagher's "National Organization for Marriage." Writes columnist Rich:

Even the anti-Obama "tea parties" flogged by Fox News last week had wider genuine grass-roots support than this so-called national organization. ...[M]ost straight citizens merely shrugged as gay families celebrated in Iowa and Vermont. There was no mass backlash. At ABC and CBS, the Vermont headlines didn't even make the evening news.

Let's leave aside Rich's partisan belittling of Fox News - the tea parties are a genuine and important demonstration of opposition by a large number of Americans, including yours truly, to Obama's trillions of spending for government expansion. (Read Steve Chapman at reason.com: "The scale of the federal response to the crises has come as a frightening surprise to many Americans, who suspect the cure will be worse, and less transitory, than the disease." And I suspect they're right.)

If we were not so intent on adopting an air of cultural superiority toward them, we might see that libertarian conservatives who distrust intrusive government and want it out of our wallets and our lives are exactly those with whom we should be engaging in dialogue.

Still, Rich is right that Americans seem to have turned a corner on the gay marriage issue. Alas, too late for California, thanks to our own activists' organizational surrender on state anti-gay initiatives in November 2008, in order to better support Obama and the Democratic Party (and not offend Obama's anti-gay minority constituency). But still a good harbinger for the future.

Rich is also right that the GOP still has a long way to go, with those he labels as the party's chief contenders in 2012, Romney, Palin and Gingrich, "now all more vehement anti-same-sex-marriage activists than Rick Warren." That's why I believe it's all the more important to be supportive of efforts by Log Cabin and the new GOProud to work toward change from within the Republican flanks. The pro-marriage equality speech at Log Cabin's convention last week by Steve Schmidt, the Republican political consultant who managed John McCain's campaign, was a good sign (see Jon Rauch's item, below).

But much more needs to be done. And liberal Democrats belittling these efforts isn't helpful.