IGF CultureWatch

That's the question posed by the Portland-based writer Taylor Clark over at Slate. The sex scandal currently roiling the Pacific Coast city has all the makings of a steamy soap opera (and then some -- I mean, really, Beau Breedlove?). It's attracted an inordinate amount of attention not only because of the dramatic nature of the charges (kissing in the City Hall bathroom!) but because the individuals involved happen to be gay.

Clark argues that were Adams straight, he would have resigned long ago. She makes the extra special effort to make clear that she's not the sort of person who believes that one's sexuality should affect the way we view these matters. Rather, in liberal Portland, "When you look out on the pro-Adams crowds," you don't just see gays and political hacks dependent upon the mayor's patronage championing his cause. The bulk of the people coming to his public defense are "young, educated liberals who feel unqualified to spit venom about Adams' sex life-despite the fact that they'd be far less restrained with a straight politician." That liberals would hold gays to a favorable double-standard when it comes to sexual behavior is probably true and troublesome. But it's the topic of another column. Yet as far as explaining why Adams hasn't yet departed office, I'd say it's logically sound. L'affair Adams could only play out in a handful of cities across America, Portland being near the top of the list. But Clark leaves unexplored another angle to the world of gay sex scandals that might explain why Adams is still in office.

A look at past sex scandals involving gay politicians would be instructive. Barney Frank, who was censured by his colleagues in the House of Representatives for fixing an the parking tickets of an erstwhile lover who was simultaneously running a brothel out of Frank's home, ultimately survived, in spite of many calls for his resignation. The scandal had little effect on Frank's political fortunes; he's since risen to become one of the most visible and powerful Democrats in the House. Perhaps were it not for his scandal Frank would be speaker by now, but there's really no way of knowing. After all, Frank's prostitute/parking ticket problems didn't stop him from becoming Chairman of the House Financial Services Committee nor the most visible (and eloquent) defender of Bill Clinton during the impeachment process.

The other prominent gay political scandal in recent memory was that of Mark Foley. Unlike Adams, Foley never touched the objects of his illicit affection, never mind carry on an affair with them and then lie about it to the media.Yet literally within minutes of the dirty instant messages hitting headlines, Foley had already resigned, hitched a flight out of DC, and announced he was entering rehab. It wasn't until last year that Florida and federal officials announced that Foley hadn't broken any law. What can explain the different ways in which Adams, Frank and Foley were treated?

Party affiliation. Sam Adams and Barney Frank are both Democrats, whereas Mark Foley is a Republican. It didn't matter that Foley had a rather sterling record on gay rights issues, the mere fact that he was a member of the GOP was enough to garner the outrage of the Gay Left. Perhaps the fact that Adams is just a mayor, whereas Foley a congressman, explains the different responses. But Barney Frank, after all, was a congressman during his own brouhaha. Moreover, in this internet-driven world, the details of the love life of Sam Adams and Beau Breedlove are available to anyone in the country and have been scrutinized by major national media.

Sure, Foley wasn't exactly open about being gay (nor was he exactly closeted), yet I see little reason why a semi-closeted, pro-gay politician mired in a pseudo-sex scandal should be the recipient of such massive levels of hostility and ridicule whereas an openly gay politician mired in a real one ought earn largely unmitigated sympathy. In other words, if every aspect of the saga of Sam Adams were the same save his party affiliation he would have flown the coop yesterday.

In response to conservative criticism, Senate Democrats dropped $400 million in HIV prevention funding from their trillion dollar "stimulus" spending bill. (I know, AIDS is not necessarily a "gay" issue, but the Washington Blade put this on their front page, so I'm going to comment on it.)

AIDS activists protested: "Michael Weinstein, president of the AIDS Healthcare Foundation...said critics are wrong in claiming HIV- or STD-related programs don't boost the economy."

That's an understandable response from a lobby, but it misses the point. The question isn't whether HIV prevention programs are economic stimulus; of course they're not. But then, neither is most of the spending in this monstrosity of a bill. And if it's going to provide billions to fund other non-job creating liberal-left initiatives, such as research into global warming, along with giving billions to the states to spend on whatever they please (i.e., pork), then just why not HIV prevention?

The answer is that Senate Dems felt that this was the one area they would be prudent to surrender. That's telling.

More. Yes, I realize that some relatively small, additional cuts have now been made from the original House bill, first in the Senate version and later as part of the Senate-House reconciliation . But as reader Avee comments, there remains in the bill massive amounts of funding for social initiatives that have nothing realistically to do with job creation. And the HIV funding was one of the first that was dropped (and from the original, totally larded-up House version), which is what I found to be telling.

Furthermore. Will the stimulus actually stimulate? Economists say no. And this, from Cato.

The U.S. legal system mirrors our binary culture, where the public -- and, more specifically, the press -- craves either/or decisions. It is in that frame where drama is intensified, and we do love our drama.

The case of the San Diego firefighters forced by their superiors to ride in a fire truck in a gay pride parade shows the limits of binary thinking. Here is a case where everyone is wrong - or, more charitably, where each side is only right enough that they could bring a plausible case to court.

Why on earth did the fire department need to force some unwilling employees to appear in a parade they quite clearly were not anxious to participate in? If there really were not enough firefighters who would voluntarily ride on the truck in the parade, then the department's purported message about being gay friendly would seem to have a hole or two in it.

On the other hand, is riding in a gay pride parade really sexual harassment? Under the creepingly generous interpretations that term has received over the years, that's possible. But, as SNL's Seth Meyers might say, "Really?" Can the reactions of some crowd members in a public event really amount to the kind of sexual harassment envisioned by the long-ago drafters of this law?

More broadly, the firefighters' complaint shows one of the most invidious harms homophobia causes. Many heterosexual men still find it not just unpleasant, but actionable to be viewed as attractive by other men - though this is clearly changing pretty radically. Sexual harassment law provides the only context where being viewed as attractive is something to sue over.

Is the fear of homosexuality really so powerful that heterosexual men would not want to accept this pretty common compliment -- particularly for those heterosexual men who feel free, themselves, to dish a similar compliment out to random women. Sometimes a compliment is just a compliment, guys.

The case is now before a jury for the second time, after a first jury could not come to a verdict. The original jury seems to have got it right.

I confess I am no expert on New York politics, and might be able to use some help. This headline from the NY Times, No Gay Marriage Bill This Year, Smith Says," implies that the new Senate leader in New York will not bring a marriage bill up because he doesn't yet have the votes.

Is there some rule that prohibits unsuccessful bills from even being discussed in New York's legislature? I know some of the best debates in California's legislature were on gay rights bills that everyone knew would not be passed. It is good for gay rights supporters to have a formal platform to make their case. More important, there is enormous value in having gay rights opponents make their increasingly unpersuasive arguments in public with a spotlight on them. The more they are allowed to articulate their assertions where the general public can hear, the more sense our own arguments make.

Eugene Volokh has a good analysis of the nonbinding ruling by Judge Stephen Reinhardt holding DOMA unconstitutional. Reinhardt relies on language in some Supreme Court rulings about laws which have the "bare desire to harm" a minority.

But this is a gloss on the traditional rational basis level of scrutiny, and I think Reinhardt's opinion (it is not a ruling in the sense that it would apply beyond the employee whose rights are at stake) ultimately relies mostly on the more traditional standard - though he does explicitly cite the "bare desire to harm" rule.

What is most striking about Volokh's analysis, though, is that he says that DOMA could ultimately be held rational because "sexual behavior is indeed alterable for quite a few people." This is, in fact, true. But is it relevant?

Volokh argues that because some people are truly bisexual, the government could be rational in offering benefits only to couples of the opposite sex because it could serve to steer people into acting heterosexually. (And Volokh is quite clear that this is not something he, himself, believes.)

Let's concede this would be true for bisexuals. What about lesbians and gay men who are true Kinsey 6s - entirely homosexual in orientation. It is that distinction that makes all the difference to me. The law is binary (heterosexual activity is preferred, homosexual activity is - at best -- ignored), while sexual orientation is not. And while it might be said to be rational to encourage bisexuals to act on their heterosexual impulses, is it also rational to frame the law so that people who have no such impulses are left without any legal acknowledgement for their relationships?

The vagaries of sexual activity have long plagued the issue of gay equality. It would, of course, be extremely difficult to craft a law which acknowledges the complexity of sexual orientation -- which is why lesbians and gay men think it makes most sense for the law to simply be neutral with respect to sexual orientation. But it is manifestly unfair to test laws which acknowledge only heterosexual orientation (to the complete exclusion of homosexual orientation) by their effects on sexual activity.

The California Supreme Court will hear oral arguments on the validity of Prop. 8 March 5.

The key legal question presented is whether Prop. 8 is a revision to the California Constitution or an amendment. But that is the legal question. What the court will be deciding for non-lawyers is whether a majority of California's voters can change the state constitution to require discrimination.

Our country has a long and miserable history of laws that permitted and sometimes required discrimination, and a more recent and noble history rejecting them. In those cases where courts rather than legislatures have overturned discriminatory laws, it was based on principles enshrined in constitutions -- the operating system for all ordinary laws. One of the core functions of courts in our system is to make sure democratically passed laws live up to the highest ideals we have set out in our constitutions.

California's Supreme Court will be deciding whether voters can change the principles in the state constitution, itself, to elevate discrimination against same-sex couples to a fundamental axiom. The court in The Marriage Cases overruled two statutes defining marriage because they violated the constitution's promise of equal protection. Prop. 8 was specifically designed to change what its proponents believed was a flaw in the constitution that would permit such equality.

The proponents of Prop. 8 did not characterize their initiative as changing the constitution's equal protection clause, but that is what they gathered the votes to do.

A smart piece on the op-ed page of the LA Times today makes the case that California's constitution is too easy to amend -- easier than the constitutions of most states, the federal charter, and even the founding documents of the National Football League and the UCLA Academic Senate.

But it does appear that the Prop. 8 folks used the rules that exist to give the equal protection clause an asterisk. If the court upholds Prop. 8, those same rules will govern the obvious and necessary initiative to restore the constitution's promise.

Thanks to Jon and Stephen for this invitation. IGF has been close to my heart since its inception, and I'm glad to be here as it moves into a new stage.

For those who don't know me, I've been working on gay issues here in California since the mid 1980s, when California passed the first domestic partnership ordinances. I confess to being a California partisan, even when (as now) our state is in the midst of both political and economic chaos. My only defense is the beaches. . .

Despite the common stereotype, it's important to remember that California is not a wildly liberal state. During the entire 20th Century, we only elected four Democratic governors -- and two of them were named Brown. And the last Democrat we elected got recalled from office.

I mention that because it shows it's not just liberals -- or Democrats -- who support gay rights, and are willing to vote for them. The Prop. 8 fight demonstrates that we still have some convincing left to do, but don't forget that this election was a straight up-or-down vote on marriage, and only marriage -- and we got about 48% of the vote. And that 48% was among people who voted in one of the highest-turnout elections in the nation's history.

We have accomplished this is a state where only a little over 40% of the voters register as Democrats -- and not all of them voted against Prop. 8. It is tempting and convenient to think in partisan terms, but for those of us engaged in the fight for marriage equality, it is not enough. There are no partisan arguments that will change the minds of the people who remain to be convinced. That's why I value IGF, and why I'm glad to be part of this conversation.