IGF CultureWatch

Michael Steele, the new chairman of the Republican National Committee, was supposed to be a breath of fresh air for the moribund Grand Old Party. Not only has the first African-American leader of the GOP put a more diverse face on an organization that consists largely of older white men, but more substantively, his moderate conservatism was promised to be the saving grace of a party in desperate need of reform. Steele had been a member of the Republican Liberty Council, a group of socially moderate Republicans founded by former New Jersey governor Christine Todd Whitman that tried to make pro-choice and pro-gay politicos feel more comfortable in the party. Steele was also unafraid to criticize the excesses of the GOP; when he ran for Maryland senator in 2006 he joked that the "R" in Republican was akin to a "scarlet letter."

In his campaign to become party chair, Steele ran as a moderate. Not long after he won a contentious leadership election that necessitated six ballots, Steele acknowledged that his ascension presented an "important opportunity" to reach out to pro-choice and pro-gay voters. But since taking the helm of the RNC in January, Steele has proven himself thus far to be a disappointment to those hoping that he would move the party towards the center, especially on issues of concern to gay voters.

First, there was Steele's well-publicized row with conservative talk radio king Rush Limbaugh. Attempting to neutralize a coordinated Democratic strategy of painting Limbaugh as the leader of the Republican Party, Steele referred to Limbaugh as occasionally "incendiary" and "ugly" in an interview with CNN's D.L. Hughley. It didn't matter that this remark was made in passing, or, for that matter, that it was true (even Limbaugh's army of unreflective "dittoheads" cannot deny it). The increasingly shrinking conservative movement will brook no criticism of its loudmouth standard-bearer, and essentially proved the Democratic analysis correct by rushing to Limbaugh's defense and pressuring Steele to prostrate himself at the host's feet, which he did posthaste.

But a more dispiriting example of Steele's captivity to outdated social conservative ideology was a little-noticed remark he made in an exchange with another right-wing talk radio host, Mike Gallagher, about a week before his spat with Limbaugh. Asked by Gallagher if he favored civil unions for gay couples, Steele responded:

"No, no no. What would we do that for? What are you, crazy? No. Why would we backslide on a core, founding value of this country. I mean, this isn't something that you just kind of like, 'Oh, well, today I feel, you know, loosey-goosey on marriage.' I mean, this is a foundational principle of this country. It is a foundational principle of organized society. It isn't something that, you know, in America we decided, 'Let's make it between a man and a woman; oh, well, now let's change our mind and make it between anyone and anyone.' "

No.

Never mind the callous way in which he treated the issue - certainly, the mere question of whether or not committed gay couples should continue to be legally discriminated against deserves a more measured response than an inquiry into whether the person posing it should have his head examined - Steele's reply was firmly out of step with the American electorate. A succession of recently conducted polls have found that over 60% of Americans support either civil unions or full marriage rights for gay couples. (Even George W. Bush, who led the effort to pass the Federal Marriage Amendment in 2004, came out in support of civil unions in 2004 and expressed disagreement with the GOP platform.) Most analysts of social trends agree that this figure will increase significantly over time as older Americans with more conservative views on homosexuality die, while younger and more tolerant Americans begin voting in higher proportions, and general attitudes on homosexuality liberalize across the board.

So it is not the conservatives urging their movement to moderate itself on the defining civil rights issue of the day who are "crazy." Put aside the debate about the desirability of gay marriage; antigay politics will soon become anachronistic and a surefire electoral loser. Some, like the reform-minded former Bush speechwriter David Frum, have realized this fact and called for a softer approach to social issues, particularly gay marriage (full disclosure: I'm a contributor to Frum's website, NewMajority.com). But those conservatives willing to question their party's position on gay rights have been viciously attacked, and there's little indication that their views are influencing a critical mass of the Republican Party leadership.

Last November, according to exit polling, 27% of self-identified gay voters chose McCain over Obama (the actual number of gays who voted GOP was probably far higher, given that many presumably did not out themselves to pollsters). In a dismal year for Republicans, gays were the only group whose support for the Republican nominee rose from its 2004 level. There was good reason for this increase considering the fact that McCain courageously opposed the FMA, was the first Republican presidential nominee to grant an interview with a gay news outlet, and seemed more amenable than his predecessors on other gay issues. Yet in exchange for this support, gays now see a Republican Party chairman who, while promising a bigger tent, has just shrunk it. The decline of the GOP as a national party continues apace.

Some defenders of traditional marriage claim that gay marriage jeopardizes husbands and wives. It's as if when two Massachusetts men wed, they exchange 24-karat-gold crowbars, all the better to pry straight couples apart.

Former Pennsylvania senator Rick Santorum has said that same-sex marriage "threatens my marriage. It threatens all marriages." Mixed-sex-matrimony guru Maggie Gallagher wrote last June 20, "If the word 'marriage' can be redefined as a civil rights imperative, why balk at lesser ideas like 'monogamy' or 'fidelity'?"

But as outspoken as these and other social conservatives are about Allen and Steve's clear and present danger to Adam and Eve, they have held their peace about an enterprise that profits from adultery.

AshleyMadison.com calls itself a "dating site specifically designed to help married people cheat on their spouses." Its slogan is "Life's short, have an affair." Its previous tag line was "When Monogamy Becomes Monotony." It boasts 3.5 million registered users, among whom some 400,000 active members each pay up to $249 quarterly.

"Sign up today and if you don't have an Affair to Remember," the website promises, "we'll give you your money back. Guaranteed." Participants post photographs and profiles and seek other husbands and wives itching for extra-marital copulation, "till death do us part" be damned.

"We made tens of millions of dollars" last year, company president Noel Biderman says from its Toronto base. "We are very profitable and successful."

Surely AshleyMadison.com has enough shame to conduct its shady business in the shadows. Wrong! AshleyMadison.com advertises on CNN, ESPN, NBC, and even the conservative-leaning Fox News Channel.

Its current TV ad features a lady in a restaurant whose monstrous dinner companion yaps into his cell phone, hushes her when she tries to talk, ogles another woman, and eventually says, "Happy anniversary, honey," before sauntering alone out the door. This disenchanted wife eyes a sympathetic gentleman on a barstool and smiles alluringly at him. Who knows what happens next?

"AshleyMadison.com," says the female announcer. "When divorce is not an option."

This woman clearly is dolorific. Her boorish husband deserves to have his cell phone pulverized with the chef's rolling pin.

If this ad discouraged spousal self-absorption, it would be a home run. Ditto if it promoted marriage counseling, or suggested that everyone exercise extreme caution before picking a spouse. But something completely different is for sale.

Even a business this depraved should remain free to operate. But it should be ridiculed, humiliated, and shunned. Viewers should ask TV networks that broadcast this website's ads if they are proud to share in the spoils of infidelity.

Social conservatives should stop theorizing about gay marriage's supposed danger to straight matrimony and instead denounce this insidious assault on that institution.

Even if same-sex marriage undermined conventional marriage, this would be by unintended consequence, not deliberate broadside. Straight-marriage advocates' obsession with gay marriage versus their quietude about AshleyMadison.com is like declaring a War on Toasters that might malfunction and ignite, but ignoring arsonists who toss lit flares around Malibu during a Santa Ana wind.

According to the Nexis database, key gay-marriage foes are mum about AshleyMadison.com.

Over the last six months, for example, Rick Santorum appeared in 22 stories that mention "gay marriage," but in zero citing AshleyMadison.com. Maggie Gallagher materialized in 41 gay-marriage stories and zero on AshleyMadison.com. Former Massachusetts governor Mitt Romney's numbers are 276-0, respectively. For Focus on the Family, the score is 389-0. The phrase "same-sex marriage" yielded 24 hits for Santorum, 52 for Gallagher, 256 for Romney, and 449 for Focus. All of the above were absent from the 67 Nexis-archived stories on AshleyMadison.com between September 5, 2008, and March 5, 2009.

Clearly, straight-marriage fans fret about what two men wearing wedding bands might do to a man and woman with rings on their fingers. Whether this concern is scientific or superstitious, surely they must acknowledge that seeing Bob and Steve together in a porch swing is trivial compared to Adam philandering with his new AshleyMadison.com adulteress as Eve waits at home, watches dinner grow cold, and wonders why on Earth he's so late.

Conversely, if Adam caught Eve cavorting on the kitchen counter with her new AshleyMadison.com buddy, that would not be a blow for marriage.

AshleyMadison.com is a genuine threat to traditional matrimony. That's where self-styled defenders of that institution should aim their fire.

Recently I wrote about a proposed compromise by David Blankenhorn, who opposes gay marriage, and Jonathan Rauch, who supports it.

On the Blankenhorn/Rauch proposal, the federal government would recognize individual states' same-sex marriages or civil unions (under the name "civil unions") and grant them benefits, but only in states that provided religious-conscience exemptions, allowing religious organizations to deny married-student housing to gay spouses at a religious college, for example, or to refuse to rent out church property for gay-related family events.

The Blankenhorn/Rauch proposal has prompted much discussion, including a counter-proposal from Ryan Anderson and Sherif Girgis at the conservative website thepublicdiscourse.com.

Anderson and Girgis-who unlike Rauch and Blankenhorn, come from the same side of the debate-reject the original proposal as granting "too much to revisionists and too little to traditionalists." As they see it, traditionalists don't merely seek to secure their own personal religious liberty, but to promote what they see as "a healthy culture of marriage understood as a public good."

They believe that the Blankenhorn/Rauch proposal undermines that public good, because

"it treats same-sex unions (in fact, if not in name) as if they were marriages by making their legal recognition depend on the presumption that these relationships are or may be sexual. It thus enshrines a substantive, controversial principle that traditionalists could not endorse: namely, that there is no moral difference between the sexual communion of husband and wife and homosexual activity-or, therefore, between the relationships built on them."

Anderson and Girgis instead propose the following: "revisionists would agree to oppose the repeal of the Defense of Marriage Act (DOMA), thus ensuring that federal law retains the traditional definition of marriage as the union of husband and wife …In return, traditionalists would agree to support federal civil unions offering most or all marital benefits." But these unions "would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual," provided that they are "otherwise ineligible to marry each other."

In other words, there would be federal civil unions for gays-but also for other domestic pairs: elderly widowed sisters, for example, or bachelor roommates.

At first glance, their claim that Rauch and Blankenhorn base their proposal on "the presumption that these relationships are or may be sexual" seems strange. After all, Rauch and Blankenhorn never mention sex, and the state neither knows nor cares (nor checks) whether people are having sex once they're married or "civilly united."

On the other hand, people generally assume (with good reason) that marriages and civil unions are sexual, or more broadly romantic. Romantic pair-bonding seems to be a fundamental human desire-for straights and gays-and part of what marriage does is to acknowledge pair-bonds. It does so not because the government is sentimental about such things, but because it recognizes the important role such bonds have in the lives of individuals and the community.

Anderson and Girgis are correct that there are other important bonds in society, and we may well want to extend more legal recognition to them. There is no reason that two cohabitating spinsters shouldn't be granted mutual hospital visitation rights if they want them.

But the question remains whether we want to extend "most or all" federal marital benefits to any cohabitating couple otherwise ineligible to marry, as Anderson and Girgis propose.

And this question prompts additional ones: why limit such recognition to couples? Mutually interdependent relationships don't only come in twos. Oddly, Anderson and Girgis seem to have more in common with radicals who seek to move "beyond marriage" than they do with anyone in the mainstream marriage debate.

Also, why limit such recognition to couples "otherwise ineligible to marry"? Can't an unrelated man and woman have an interdependent relationship that's not sexual/romantic?

Anderson and Girgis write that, "Our proposal would still meet the needs of same-sex partners-based not on sex (which is irrelevant to their relationship's social value), but on shared domestic responsibilities, which really can ground mutual obligations."

And there's the crux: Anderson and Girgis assume that sex has social value only when open to procreation. But that's just false, and most Americans know it. We acknowledge sexual/romantic relationships not merely because they might result in children, but also because of their special depth. Sex doesn't merely make babies; it creates intimacy-for gays and straights alike.

The problem is that Anderson and Girgis divide couplings into two crude categories: (1) married (or marriageable) heterosexuals, and (2) everyone else: committed gay couples, elderly sisters, cohabiting fly-fishing buddies, what have you. They then implausibly suggest that those in column two are all of equal social value.

As David Link writes at the Independent Gay Forum, "The authors of this proposal are quite honest that they find it impossible to view same-sex couples in the category of marriage. But if these are the two categories offered: aging sisters or married couples, I'm betting more Americans who don't already have an opinion, would view same-sex couples as more like the married couples than the sisters. With apologies to the traditionalists, the days when a majority of Americans simply closed their eyes to the loving-and sexual-relationships of same-sex couples are coming to an end."

As they should.

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.