IGF CultureWatch

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.

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.