IGF CultureWatch

On March 5, the California Supreme Court heard arguments about whether Proposition 8, which banned same-sex marriage in the state, is valid. Even if you oppose gay marriage, and even if (like me) you support it but question last May's decision declaring a right to it, there's good reason to invalidate Prop 8. That's because the root issue in the case is deeper than same-sex marriage. It goes to the heart of what it means to live in a democratic polity whose decisions are both substantively and procedurally bounded by a constitution.

The California Constitution recognizes two types of changes: "revisions" and "amendments." A "revision" can be enacted only through approval by two-thirds of each state house, followed by a majority vote of the people. "Amendments" can be enacted by simple majority vote of the people, without prior legislative approval. The harder process to enact a revision suggests that it is reserved for extraordinary matters requiring more deliberation and social consensus than an ordinary amendment. If Prop 8 was actually a revision, it cheated the constitutional design by going through the comparatively easy amendment process.

So which is it? The California state constitution itself tells us nothing about which route must be followed for a particular proposed change. The distinction between revision and amendment is rare in state constitutions, and completely foreign to the U.S. Constitution.

History offers little guidance. The easier amendment route was created in the early 20th century as a populist, progressive reform to combat the power of wealthy corporate interests over the California legislature. Whatever else can be said of them, neither side in the gay-marriage debate is controlled by robber barons. While the people obviously wanted a method of constitutional change that avoided the legislature, it's equally obvious that some changes still require prior legislative approval.

The court's own precedents don't directly answer the question. In the past, the California Supreme Court has said that a proposed change can be so voluminous that it requires the more laborious revision process. Prop 8 added only 14 words to the state constitution.

The court has also said that a change can be so "qualitatively" significant that it constitutes a revision. A proposal to instruct the state legislature how much to spend annually on environmental protection is an amendment. But a proposal to limit the ability of the state courts to protect multiple rights of criminal defendants was held to be a revision. Prop 8 dealt only with defining marriage, which is certainly important, but leaves intact California's extensive gay-rights laws, including its comprehensive recognition of same-sex domestic partnerships.

So past cases have labeled changes "revisions" if they are voluminous or alter the basic structure of state government, including the court's own role in monitoring the protection of a broad swath of rights. But if the underlying concern is that some changes should require more deliberation and consensus, why limit the analysis to those narrow instances?

Critics will say that overturning Prop 8 would be unprecedented. And they're right. But that is only because Prop 8 itself is unprecedented in California - or in any other state. To see why, forget about same-sex marriage for a moment.

Suppose a majority of the people decide that Mormons are exercising disproportionate influence in the political system. So they change the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights.

Or suppose a majority of the people decide too many blacks aren't taking marriage seriously. So they vote to deny blacks, and blacks alone, the right to marry. Putting aside the questionable validity of such changes under the federal constitution, would they be "amendments" or "revisions" to the California Constitution?

Back to Prop 8. Under the California Supreme Court's marriage decision, marriage is as fundamental for gays as it is for blacks and as important for them as political speech is for Mormons. Additionally, discrimination against gays is as judicially questionable as it would be against racial or religious minorities.

There are solid reasons to think last May's decision was judicial overreach. But unless the decision is reversed, which is unlikely, the conscientious constitutional objector is left to consider the larger implications of allowing a fundamental right to be stripped from a vulnerable minority.

Even rights that the objector agrees are fundamental could be taken away, and even groups that he agrees need special judicial protection could be assaulted, in a future constitutional amendment, by a simple majority. If it's acceptable in this case, it should be acceptable in future ones.

Neither side doubts that courts are empowered to determine whether a change is a revision or an amendment. When in doubt, perhaps the court should follow the "will of the people," as legal supporters of Prop 8 argue.

But which "will"? The will expressed by any simple majority at any given time on any issue of sufficient brevity or discreteness? Or the enduring will expressed by the people themselves in their constitution, as interpreted by their courts, requiring extraordinary procedures for extraordinary changes targeting three percent of the population?

Gay marriage can be banned in a revision to the state constitution. After all, the people are entitled to govern themselves. But only under the rules they have enacted. And the best understanding of those rules suggests they were violated by Prop 8.

This is a good time to take stock of the threats faced by LGBT people around the world. That's because on Feb. 25, the State Department released its Country Reports on Human Rights Practices for 2008. The Council for Global Equality a day later released its extract of sexual orientation and gender identity references for 190 countries. That and a list of "Top Ten Opportunities for the U.S. to Respond" are at www.globalequality.org. The dishonor roll includes Egypt, the Gambia, Honduras, India, Jamaica, Kuwait, Kyrgyz Republic, Lithuania, Nigeria, and Uganda.

The Council notes that many of the worst anti-gay abuses were committed by American allies, "including those that receive sizeable U.S. development or security assistance." Egypt was the third largest recipient of aid from the State Department and the U.S. Agency for International Development in 2008, while Uganda is a leading recipient of PEPFAR funding for prevention and treatment of HIV/AIDS. The Council believes that "the State Department must move beyond a reporting agenda to an affirmative 'protection agenda' that actively seeks to redress these serious and ongoing human rights violations."

There were plenty of abuses outside the "top ten," according to the documents. In Russia: "On June 1, gay pride activist Alexey Davydov was assaulted while addressing reporters at the Moscow Gay Pride event." In the Netherlands: The U.N. High Commissioner for Refugees "raised cases in which protection from return to unsafe countries appeared to have been violated..." In Cameroon (where homosexual activity can bring sentences of up to five years in prison): "homosexuals suffered from harassment and extortion by law enforcement officials." In the Bahamas: "In 2006 the Constitutional Review Commission found that sexual orientation did not deserve protection against discrimination."

One grim lesson the reports teach is that the sun never sets on anti-gay laws stemming from the British colonial era. Countries from Brunei to Zambia continue to criminalize acts "against the order of nature," despite England's having decriminalized homosexual acts in 1967. Human Rights Watch observed in December that, "the model British-era sodomy law made no distinction between consensual and non-consensual sex, or between sex among adults and sexual abuse of children. As a result, these surviving laws leave many rape victims and child victims of abuse without effective legal protection."

Gay rights groups were among the Non-Governmental Organizations (NGOs) that pressed efforts in many countries despite grave risks. They included the Blue Diamond Society in Nepal; Sangama in Bangalore, India; ACCEPT in Romania; Gemini in Bulgaria; and Rainbow Project in Namibia. NGO representatives were assaulted in Jamaica, Honduras, Croatia, Uganda, and India.

Prejudice and violence persist even in countries that have made great strides. For example, in South Africa, which legalized same-sex marriage in 2006, a Social Attitudes Survey by the Human Sciences Research Council found that homosexuality was widely considered "unAfrican" and gay sex was opposed by 80 percent of respondents. Also in South Africa, four men were charged with the rape and murder of lesbian activist and former soccer player Eudy Simelane east of Johannesburg. No arrests were made in the July 2007 murders of a lesbian couple in Soweto and a lesbian in KwaZulu-Natal.

There was some good news. Argentina's National Social Security Administration granted widowed same-sex partners inheritance rights to their partner's pension. Turkey's Supreme Court of Appeals on Nov. 28 overturned an Istanbul court ruling which had cited Turkish "moral values and family structure" in shutting down Lambda Istanbul, the country's oldest LGBT organization. The Lithuanian government paid 40,000 euros to a transsexual woman after the European Court of Human Rights ruled her privacy rights had been violated.

The reports for Iceland, Denmark, Sweden and the Netherlands mention their gay-inclusive laws against hate speech. These laws are double-edged swords, because they tend to blur the distinction between mere disagreeable speech and incitement to violence. Denmark's prohibition of blasphemy could place gay rights advocates afoul of the law if they mount a public response to, say, Islamist homophobia. Indeed, one cannot write about European trends in Islamist anti-gay intolerance without being called Islamophobic by gay leftists. But there is no safety in silence.

The State Department reports for 2008, while gathered during the Bush Administration, have a preface by Secretary of State Hillary Rodham Clinton. This underscores the continuity provided by the career foreign service officers who do most of the work. May their efforts continue and expand.

There is something very satisfying about ideological purity and the righteous indignation that often accompanies it. It can be fun to paint one's opponents as crazy and stupid (and sometimes they make it all too easy to do so).

Less fun, yet potentially more productive, are attempts at common ground. As much as I enjoy a good zinger, I'm a conciliator by nature. And so I was intrigued by a recent proposal by Jonathan Rauch and David Blankenhorn seeking compromise on same-sex marriage.

Rauch is one of gay marriage's sharpest defenders; Blankenhorn, one of its ablest critics. The two have clashed on multiple occasions. If I had to recommend only two books on this subject, one from each side, they would be Rauch's and Blankenhorn's.

In last Sunday's New York Times, the pair co-authored a surprising proposal. The crux is this:

"Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will."

Currently, various states offer some sort of legal recognition to same-sex couples. The idea would be to provide federal recognition to these arrangements while allaying opponents' fears that doing so would erode their religious liberty.

So under the proposal, no church would have to rent out its parish hall for a lesbian wedding; no religious college would have to provide married student housing to a gay couple, and so on. Any state that insisted on such requirements would be ineligible for federal civil union recognition.

Let's be clear on what the proposal would NOT do. It would not create legal statuses for same-sex couples in states that did not already have them.

It would not prevent gay-rights advocates from continuing to press for full marriage rights, or gay-rights opponents from continuing to make the case against them.

Nor would it "downgrade" Massachusetts and Connecticut same-sex marriages to civil unions. States would continue to recognize same-sex relationships in whatever ways they choose-as long as they don't require religious organizations to do so. But the federal government, which currently recognizes NONE of these statuses, would recognize them all under the common name "civil unions."

What the proposal would do is allow the federal government to say, "If your state recognizes you as a couple, so do we." It thus takes federalism seriously, with the federal government deferring to the states on the issue of who's legally united-as it usually does.

The proposal has already generated a good bit of discussion in the blogosphere. Some of it simply misunderstands the proposal; much of it-not surprisingly-is critical.

Certainly, the proposal deserves a rigorous discussion from all sides. In order for that discussion to be more productive, I'd like humbly to suggest some guidelines:

Rule #1: Do not criticize the proposal by saying, "The other side is not going to like it because…" Let the other side speak for the other side.

Rule #2: Do not respond to an admirable attempt at peaceful negotiation by immediately ratcheting up the rhetoric. For example, at the National Review Online Maggie Gallagher writes, "From where I stand, it looks like the progressive/democrat position states: If you believe marriage means a husband and wife, you are not just wrong, you are downright wicked and deserve to have your home address put up on the internet so strangers can harass you."

Oy. That violates Rule #1 and Rule #2-in one sentence!

Nobody doubts that there has been excessive rhetoric on both sides. There are advocates who claim that anyone who opposes marriage equality is a hateful bigot; there are opponents who hold that gays by their very existence offend God.

But thankfully, there are also those like Blankenhorn and Rauch who are interested in moving us past such conversation-stoppers. Let's take the cue.

Rule #3: If you don't like the proposal, suggest a better idea.

Note: "Give us full marriage equality!" is not what I mean by a better idea. Sure, that's what would happen in my ideal world. Rauch's too. And no one is saying that we should stop making the case for it.

But in the meantime, there's a proposal on the table that would provide federal rights and benefits to those in state-issued same-sex unions. Moreover, it's a proposal that one major same-sex marriage opponent has endorsed.

I don't doubt that the proposal prompts some legitimate concerns on both sides. But if we can discuss those concerns with the same spirit of cooperation that Blankenhorn and Rauch have demonstrated, we might actually make some progress.

Being a homosexual in America in 1964 was not easy, and one of the more difficult places to be one was Washington, D.C. While the nation's capital has long since become the setting for some of the most important gay rights battles (and home to a vibrant gay scene), it was also the site of routine antigay witch hunts. At the time, gays were officially barred from working in government and their livelihood depended on the secreting of their sexuality. Indeed, the mere suspicion of homosexuality could get a person fired, and the consequences of losing one's job due to what was then known as a "morals charge" were long-lasting.

It's in this context that recent revelations about Bill Moyers are so disturbing. Before he became the self-righteous scold of the liberal television commentariat, Moyers served as a special assistant to Democratic president Lyndon Johnson. This was at the height of J. Edgar Hoover's reign over the Federal Bureau of Investigation, during which time the FBI director spied on a vast array of public and private citizens in order to gather information for potential blackmail.

According to documents obtained last week by The Washington Post through a Freedom of Information Act request, one of these individuals was former Johnson aide Jack Valenti, later head of the Motion Picture Association of America. Hoover, according to the Post, was "consumed" by the question of whether Valenti was gay, and deployed his agents to investigate the man's sex life.

They turned up nothing.

Valenti, however, was not the only White House official to be investigated by the FBI for suspected homosexuality. In late 1964, just weeks before the presidential election, senior White House adviser Walter Jenkins was arrested in a YMCA men's room for performing oral sex on another man. Under extreme mental duress, Jenkins checked into a hospital and resigned his position. Moyers wasted no time in trying to discover how much more potential trouble the Johnson administration might have with gays in its midst, and went out of his way to ask Hoover's FBI to investigate two other administration officials "suspected as having homosexual tendencies," according to the recently released documents.

In an e-mail response to an article written by Slate's Jack Shafer, Moyers complains about Hoover, but does not bother to address the matter of his ordering the FBI to snoop on his colleagues.

These revelations once again remind us that empathy for the dignity of gay people does not always fall along partisan political lines. Whereas Barry Goldwater, one of the crucial figures in the birth of the conservative movement, could have easily exploited the Jenkins scandal in the presidential campaign, he refused to discuss it. In his memoir Goldwater wrote, "It was a sad time for Jenkins and his family. Winning isn't everything. Some things, like loyalty to friends, or lasting principle, are more important."

Goldwater, today remembered by most liberals as a fire-breathing Neanderthal, later became an outspoken opponent of the ban on gays in the military.

Contrast Goldwater's behavior to that of Moyers, who abused his power in office to hunt down and expose the gays in his midst. (Here it should be noted that rooting out gays in government wasn't the only dirty task Moyers conducted while working in the Johnson White House. He also oversaw the FBI's wiretapping of Martin Luther King and successfully prevented the civil rights activist from challenging Mississippi's all-white delegation to the Democratic National Convention in 1964. "You know you have only to call on us when a similar situation arises," he encouraged the FBI agent in charge of the domestic espionage.)

To be sure, Moyers's behavior at the time took place within a social milieu far more repressive than today's. It wasn't until 1973, after all, that the American Psychiatric Association removed homosexuality from its list of disorders. Gays were banned from working in the federal civil service until 1975. And gays were barred from having security clearances, amazingly, until 1995. That Moyers engaged in Nixonian dirty tricks with the aim of embarrassing and ruining the careers of gay people, while despicable, was something that many officials in his position probably would have done, given the mores of the era.

But what makes Moyers's contemptible behavior relevant is that even to this day he has yet to acknowledge wrongdoing, never mind apologize. That Moyers has since become a supporter of gay rights is irrelevant. None of that erases the fact that he used his power as a senior White House official to pry into the private lives of his own colleagues.

Today, he has the gall to excoriate other public figures and lecture the rest of us on virtue. After leaving government, Moyers became a journalist and subsequently produced PBS documentaries excoriating Richard Nixon over Watergate and Ronald Reagan over Iran-Contra. In the early 1990s, his star was so high and his reputation so pristine that he publicly considered running for president. His sanctimony rivals that of the pope.

Given his own history of snooping into the private lives of American citizens with the intent to publicly humiliate them, Moyers's latter-day sermonizing on the evils of the Bush administration and conservatives in general rings more than a little hollow. And the fact that he has been getting rich off the public trough for decades - earning millions of dollars in production deals from his documentaries and television programs aired on Public Broadcasting - makes a full explanation of his activities in government service all the more necessary.

Moyers didn't just seek dirt on his own colleagues but his political enemies as well. In 1975, then-deputy attorney general Laurence Silberman was tasked with the job of reviewing a raft of secret files once belonging to J. Edgar Hoover. Amid "nasty bits of information on various political figures," Silberman found a letter drafted by Moyers requesting an FBI investigation of suspected gays on Goldwater's campaign staff. When the press reported on this document, Silberman received an angry phone call from Moyers, who alleged that the report was a CIA forgery. When Silberman offered to conduct an investigation so as to exonerate Moyers, the former presidential aide demurred. "I was very young," Moyers confessed to Silberman. "How will I explain this to my children?"

It's a good question. And one that we're still waiting for Bill Moyers to answer.