New York State of Mind?

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.

Acting!

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.

Remembering Antonio Pag

Antonio Pagán died on January 25th. Although in 1991 he became one of the first two openly gay men elected to the NYC city council (and the first openly gay Hispanic to do so), he caught heck from the LGBT left for his moderate, centrist positions. Tom Duane, the other first openly gay NYC lawmaker, endorsed Pagán's straight, and very, very, left-wing opponent, former incumbent Miriam Friedlander, when she sought to regain her Lower East Side seat from Pagán in 1993 (Pagán easily won re-election). He later served as the employment commissioner under Mayor Rudy Giuliani.

Pagán was for the small businessperson and against forcing taxpayers to support welfare subsidization as a way of life. He had been executive director of a nonprofit developer of affordable housing, but advocated against low-income public housing programs that perpetuated squalor and dependency. The LGBT left never forgave him for championing private sector solutions over big government, and dismissed him as inauthentically gay. But he was a groundbreaker and deserves to be remembered fondly.

More. Reader "avee" comments:

The New York Times called Pagán "a bundle of contradictions." The idea that you could be a forceful advocate for gay equality, and oppose the liberal left welfare agenda, does not compute for the Times writers.

Clearly.

What’s Best For Children

I don't have children, I don't want children, and I don't "get" children.

Some of my friends have children. I like their children best at two stages of their lives:

(1) When they're small enough that they come in their own special carrying cases and stay put in them.

(2) When they're big enough that they don't visit at all, but instead do their own thing while their parents do grownup stuff.

In between those stages, children tend to run amok, which makes me nervous. My house is full of sharp and heavy objects. I did not put them there to deter children-honest!-but I am more comfortable when children (or their parents) are thus deterred. It's safer for everyone involved.

Having said that, I admire people who have children. I have a flourishing life largely because I was raised by terrific parents. When others choose to make similar sacrifices, I find it immensely praiseworthy.

Which may be why opposition to gay adoption makes me so angry.

Mind you, I am not by nature an angry person. Regular readers of this column know that I go out of my way to understand my opponents. Rick Warren compares homosexuality to incest? Well, what did he mean by the comparison? What was the context? What's motivating him?

Attack gay parents, however, and my first impulse is to pick up one of the aforementioned sharp and heavy objects and hurl it across the room.

That's partly because these attacks criticize adults who are doing a morally praiseworthy thing. And it's partly because the attacks hurt innocent children, toward whom I feel oddly protective, despite my general aversion.

Back in November, a Miami Dade circuit judge ruled that Florida's law banning gays from adopting is unconstitutional. This is very good news.

The Florida ban took effect in 1977, the era of Anita Bryant and Jerry Falwell. We've come a long way since then-or so I'd like to think.

Yet the Florida religious right is trotting out the same old arguments, repeatedly insisting that having both a mother and father is "what's best for children."

Let's try addressing this calmly.

Every mainstream child health and welfare organization has challenged this premise. The American Academy of Pediatrics. The Child Welfare League of America. The National Association of Social Workers. The American Academy of Family Physicians-you name it.

These are not gay-rights organizations. These are mainstream child-welfare organizations. And they all say that children of gay parents do just as well as children of straight parents.

But let's suppose, purely for the sake of argument, that they're all wrong. Let us grant-just for argument's sake-that what's best for children is having both a mother and a father.

Even with that major concession, our opponents' conclusion doesn't follow. The problem is that their position makes the hypothetical "best" the enemy of the actual "good".

Indeed, when discussing adoption, it's a bit misleading to ask what's "best" for children.

In the abstract, what's "best" for children-given our opponents' own premises-is to not need adoption in the first place, but instead to be born to loving heterosexual parents who are able and willing to raise them.

So what we're really seeking is not the "best"-that option's already off the table-but the "best available."

What the 1977 Florida law entails is that gay persons are NEVER the best available. And that's a difficult position for even a die-hard homophobe to maintain.

It's difficult to maintain in the face of thousands of children awaiting permanent homes.

It's difficult to maintain in the face of gay individuals and couples who have selflessly served as foster parents (which they're permitted to do even in Florida).

It's difficult to maintain in light of all the other factors that affect children's well-being, such as parental income, education, stability, relationships with extended family, neighborhood of residence, and the like-not to mention their willingness and preparedness to take on dependents.

What the Florida ban does is to single out parental sexual orientation and make it an absolute bar to adoption, yet leave all of the other factors to be considered on a "case-by-case," "best available" basis.

Meanwhile, thousands of children languish in state care.

For the sake of those children, I resist my urge to hurl heavy objects at the Florida "family values" crowd. Instead, I ask them sharply and repeatedly:

Do you really believe that it is better for children to languish in state care than to be adopted by loving gay people?

Those are the real-world alternatives. Those are the stakes. And our opponents' unwillingness to confront them is an abysmal moral failure.

Final Marriage Battle in California (Part V)

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.

Change is good

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.

Changes Afoot (at IGF)

We hope you like our new design. Here's another new change: Jonathan Rauch and I would like to welcome two new bloggers to "Culture Watch." They're no strangers to IGF: James Kirchick (bio here and David Link (bio here) have been IGF contributing authors for some time. Now, they'll be sharing their thoughts on a more frequent basis, via blog posts. IGF's mission remains the same: "We deny 'conservative' claims that gays and lesbians pose any threat to social morality or the political order. We equally oppose 'progressive' claims that gays should support radical social change or restructuring of society." As our mission statement continues, "We share an approach, but we disagree on many particulars." Certainly, just as Jon and I disagree on political particulars, David and James (we call him "Jamie") hold differing views along the political spectrum. But as with our other contributing authors whose views are shared here, we hold in common a disdain for the politically correct boilerplate that too often takes the place of real thought and argument. Look for their posts here, coming soon.

Faith-Based Means Us, Too

Josh DuBois might be called a New Evangelical. He is a Pentecostal pastor (with a master's degree in public affairs from Princeton) who believes Jesus is his personal savior.

But he also seems to put more weight on the social gospel (that is, that Christians should take care of the poor and the disenfranchised) than on the old Evangelical hammers of gays and abortion.

Now the 26-year-old has a new position: head of the new President's Council for Faith-Based and Neighborhood Partnerships.

Under Bush, this was called the Office of Faith-Based Initiatives, and it spent a lot of money pushing abstinence-only programs.

Obama's idea is different. The office will go beyond grant giving to find ways to partner with religious organizations to find solutions to social problems. Most notably, at least for gays and lesbians, the Faith-Based Council will forbid religious organizations from discriminating against gays and lesbians when they hire for programs that are taxpayer supported.

That means if a church applies for a grant to fund a program that feeds the needy, the organization can't refuse to hire chefs or program directors or secretaries for the program just because they're gay.

And yet - it's not enough just to prove fairness in hiring. Gays and lesbians are rightly suspicious of federal programs that purport to be "faith based." For too long, faith has been a tool of exclusion for us. We've gotten used to hearing political leaders tell us they want to take our rights away because of their own superior "family values."

We might also be suspicious of Josh DuBois. DuBois has been silent about his personal beliefs on religious right touchstones like homosexuality and abortion, but I suspect he's not a religious centrist, despite being a Democrat. Columnist Sally Quinn notes that DuBois was the person who first floated Rick Warren's name as a possibly inaugural speaker.

DuBois, who was in charge of faith-based outreach for the Obama campaign as well, also put together the program that featured Donnie McClurkin, an "ex-gay" gospel singer who has said that "homosexuality is a curse."

Yet I'm going to give DuBois - and Obama - the benefit of the doubt here. DuBois is young. I don't think he did these things to send a message to gays and lesbians - I think he did these things because he doesn't figure us in at all.

And maybe that's partly our fault.

Gays and lesbians have given religion over to the right. This is not good. There are many religions that have denied us our personhood; there are many of us who have been hurt by the religious traditions we grew up in. But gays are a diverse people, and there are many of us who are religious or spiritual - and we should not be ignored by a national program that should serve the whole country.

My hope is that gay religious organizations will approach DuBois's office about funding their valuable social service programs that assist homeless queer youth, people with AIDS, and other disenfranchised LGBT communities. And that we will all make noise about it until we know that our programs are being treated equally.

There are plenty of gays and lesbians who will disagree with me here. They think that religion is poison, and we are fools to drink it. We shouldn't want to be part of a club that doesn't want to grant us membership. They think we should fight the existence of a faith-based anything in the West Wing.

That is a battle we won't win, not this time around, not with a president who was partly elected through the voter turnout strength of the black church.

But in any case, seeking equity when it comes to this new President's Council isn't a referendum on religion. It's about fairness. Take the military as an example. I'm not too keen on the whole military-industrial complex. But if there are gay people who want to fight in the military, then I support their right of equal access. It is not for me - but I will not deny my gay brothers and sisters their own choice.

If there is a federal conduit for getting funds to religious organizations, then gay religious organizations should be getting equal access to those funds. Any President's Council for Faith-Based and Neighborhood Partnerships should not only be reaching out to Evangelicals - it should also be reaching out to us.

For Womyn Only

The New York Times looks at lesbian communes founded in the '70s, still in business but worried about new members and survival:

Alapine...is one of about 100 below-the-radar lesbian communities in North America, known as womyn's lands (their preferred spelling), whose guiding philosophies date from a mostly bygone era.

The communities, most in rural areas from Oregon to Florida...have steadily lost residents over the decades as members have moved on or died. As the impulse to withdraw from heterosexual society has lost its appeal to younger lesbians, womyn's lands face some of the same challenges as Catholic convents that struggle to attract women to cloistered lives.

It's certainly a more sympathetic portrayal than the Times would give to, say, a men's club.

Queers for Palestine?

Of all the slogans chanted and displayed at anti-Israel rallies over the past month, surely "Queers for Palestine" ranks as the most oxymoronic. It is the motto of the San Francisco-based Queers Undermining Israeli Terrorism (QUIT), a group advocating financial divestment from the Jewish State. QUIT contends that Zionism is racism, regularly demonstrates at gay pride marches, organizes with far-right Muslim organizations, and successfully lobbied the International Gay and Lesbian Human Rights Commission to boycott the 2006 World Pride Conference due to its location that year in Jerusalem.

What makes QUIT oxymoronic is that their affinity for Palestine isn't reciprocated. There may be queers for Palestine, but Palestine certainly isn't for queers, either in the livable or empathetic sense. Like all Islamic polities, the Palestinian Authority systematically harasses gay people. Under the cloak of rooting out Israeli "collaborators," P.A. officials extort, imprison, and torture gays. But Palestinian oppression of homosexuality isn't merely a matter of state policy, it's one firmly rooted in Palestinian society, where hatred of gays surpasses even that of Jews. Last October, a gay Palestinian man with an Israeli lover petitioned Israel's high court of justice for asylum, claiming that his family threatened to kill him if he did not "reform." He's one of the few lucky Palestinians to be able to challenge his plight.

And that"s only in the relatively benign West Bank. The Gaza Strip, which has stagnated under the heel of Hamas"s Islamofascist rule since 2007, is an even more dangerous place for gays, 'a minority of perverts and the mentally and morally sick,' in the words of a senior Hamas leader. As in Iran, Hamas"s patron and the chief sponsor of international terrorism, even the mere suspicion of homosexuality will get one killed in Gaza, being hurled from the roof of a tall building the method of choice.

It's these facts that make the notion of "Queers for Palestine" so bizarre. Contrary to what some gay activists might have you believe, there really are not that many political subjects where one's sexuality ought influence an opinion. Aside from the obvious issues related to civic equality (recognition of partnerships, open service in the military, etc.), how does homosexuality imply a particular viewpoint on complicated matters like Social Security Reform, health care policy, or the war in Iraq?

The answer, at least for some of those on the left side of the spectrum, is one found in the early rhetoric of the Gay Liberation Front, the leading gay rights organization to emerge after the Stonewall riots. The GLF was, in the words of historian Paul Berman, the "gay wing of the revolutionary alliance" that in the 1970s challenged the liberal consensus and came to be known as the "New Left."

GLF leaders, for instance, played an instrumental role in the creation of the Venceremos Brigade, which dispatched starry-eyed American radicals to pick sugar cane in Cuba as a show of solidarity with the regime of Fidel Castro. (Like the Palestinian Authority, Communist Cuba didn't exactly return the kindness of its gay sympathizers; for decades it interned gays and HIV-positive individuals in prison labor camps). The GLF allied itself with a whole host of radical organizations (like the murderous Black Panthers) whose role in the struggle for gay equality was tenuous at best. And the very name of the GLF was adopted from the National Liberation Front, the moniker of the Vietnamese Communists.

Why does this history matter now? Although you will find few out-and-out Marxists in the leadership of gay organizations today, most gay activists still view the world with the same sort of "oppression" complex epitomized by the early radicals who led the GLF. They believe gay people to be "oppressed," and hold that any other group claiming the same victim status should earn the support of gays.

It's for this reason that every major gay organization was so hesitant to talk about the overwhelming support among African-Americans to ban gay marriage in California, and why the National Gay and Lesbian Task Force went so far as to commission a bogus study ostensibly refuting that disturbing statistic itself. In the estimation of the gay rights establishment, African-Americans, like gays, are "oppressed," and there is no room for enemies on the left.

But gays will never get anywhere as long as they view the world in this constrictive and counterproductive way. Indeed, if one wanted to construe a "gay" position on the Arab-Israeli conflict - that is, examine the issue purely through the prism of the welfare of gay people - the inescapable stance is nothing less than partiality for Israel. Israel, after all, is the only state in the Middle East that legally enshrines the rights of gay people. Gays serve openly in the military and occupy high-profile positions in business and public life, and Tel Aviv is an international gay mecca. As cliched as it may sound, Israel is an oasis of liberal tolerance in a reactionary religious backwater, and if gay people want to stand with the "oppressed" of the region, it is the Palestinians seeking a peaceful, two-state solution, not the murderers of Hamas or their backers in Tehran, who merit support.

None of this is to say that gay people are wrong for sympathizing with the downtrodden and genuinely oppressed; on the contrary, it's an admirable quality. But all too often, ideologues with ulterior motives and radical agendas pervert this worthy instinct.

It's one thing to express concern about the humanitarian conditions in the Palestinian territories. But to stand alongside the enthusiasts of religious fascism isn't "progressive." It's obscene.