IGF CultureWatch

When I was in junior high I used to sit at the "black" lunch table in the cafeteria, much to the shock (and occasional ridicule) of my white schoolmates. The seating was not officially segregated, but with rare exceptions African-Americans sat together, and I sat with them.

It wasn't a grand political statement or a conscious act of solidarity or anything high-minded. On the contrary, it was a reluctant acknowledgment of my outsider status. While members of the white, mostly affluent student majority called me a "fag," the black students were nice to me, and I felt more comfortable around them.

Some years later I started going to the gay beaches on Fire Island, where I noticed a number of interracial straight couples. Interestingly, the "straight" part stuck out more than the "interracial" part-which, I later learned, was their main reason for choosing the gay beach. "We get a lot of flak at the straight beaches," they told me. "But gays are cool about it." Fellow outsiders, once again.

I thought about both of these events recently as I watched the movie Hairspray, the 2007 incarnation of the 1988 John Waters film (later a Broadway musical). One of the film's most poignant moments occurs when Penny, a working-class white girl, and Seaweed, a black male, reveal their relationship to Seaweed's mom, Motormouth Mabelle (played by Queen Latifah).

"Well, love is a gift," Mabelle responds. "A lot of people don't remember that. So, you two better brace yourselves for a whole lotta ugly comin' at you from a never-ending parade of stupid."

Many have speculated about whether and how Hairspray counts as a "gay" movie. Of course, there's the John Waters provenance, the drag lead character (originated by Divine and played on Broadway by Harvey Fierstein), and the inherent campiness of movie musicals. But the most profound connection lies in its message of acceptance: Hairspray celebrates forbidden love in the face of "a never-ending parade of stupid." It's a theme gays know well.

Gay-rights opponents often object to comparisons between the civil-rights movement and the gay-rights movement. Race, they say, is an immutable, non-behavioral characteristic, whereas homosexuality involves chosen behaviors; thus it's wrong (even insulting) to compare the two.

Even putting aside the fact that "civil rights" are something we're all fighting for-equal treatment under the law-this objection founders. It misunderstands the nature of racism, the nature of homophobia, and the point of the analogy between the two.

Although race is in some sense "an immutable, non-behavioral characteristic," racism is all about chosen behaviors. The racist doesn't simply object to people's skin color: he objects to their moving into "our" neighborhoods, marrying "our" daughters, attacking "our" values and so on. In other words, he objects to behaviors, both real and imagined. What's more, discriminating on the basis of race is most certainly chosen behavior. Calling race "non-behavioral" misses that important fact.

At the same time, calling homosexuality "behavioral" misses quite a bit as well. Yes, homosexuality (like heterosexuality) is expressed in behaviors, and some of those behaviors offend people. But one need not be sexually active to be kicked out of the house, fired from a job, or verbally or physically abused for being gay. Merely being perceived as gay (without any homosexual "behavior") is enough to trigger the abuse.

Even where chosen behaviors trigger the abuse, it doesn't follow that they warrant the abuse-any more than blacks' choosing to marry whites (and vice versa) warrants abuse. So the insistence that race is immutable whereas homosexuality is behavioral, even if it were accurate, misses the point. Gays, like blacks, face unjust discrimination, often in the name of religion, that interferes with some of the most intimate aspects of their lives. Hence the analogy.

I'm not denying that there are important differences between race and sexual orientation (or between racism and heterosexism). Gays and lesbians do not face the cumulative generational effects of discrimination the way ethnic minorities do, and we have nothing in American history comparable to slavery or Jim Crow. On the other hand, no one is kicked out of the house because his biological parents figured out that he's black. There are plusses and minuses to the lack of generational continuity (as well as the other differences)-and little point in arguing over who's worse off.

Early in Hairspray the young lead character announces, "People who are different-their time is coming." We "different" people have much to learn from one another, as the never-ending parade of stupid marches on.

On July 25, the Ohio Supreme Court ruled 6-1 in Ohio v. Carswell that the anti-gay-marriage amendment to the state constitution does not invalidate Ohio's domestic violence law as it applies to unmarried couples. This was welcome as far as it went, but the amendment remains in place, even if the force of its sweeping second sentence-which goes beyond marriage to prohibit any marriage-like legal status-was narrowed. This small victory was not quite dramatic enough to set the Cuyahoga River on fire.

Lambda Legal's James Madigan said of Carswell, "The court sent a strong message to those who would attempt to use the amendment to attack health insurance benefits for families, or the relationships between children and their same-sex parents: you can't get away with this." Equality Ohio's Lynne Bowman offered a more mixed assessment: "We applaud the Court for upholding Ohio's domestic violence laws. However, this ill-conceived amendment continues to make it hard for loving same-sex partners to care for each other and their families in this state."

The majority opinion by Chief Justice Thomas Moyer is not entirely convincing. He writes that the amendment's second sentence means that "the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage-a marriage substitute." But that is not what the sentence says. It prohibits "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." As dissenting Justice Judith Lanzinger points out, the use of the disjunctive "or" means that unmarried couples are denied legal status for any one of the listed attributes of marriage, not just the list taken as a whole.

Moyer declares, "The state played no role in creating Carswell's relationship with the alleged victim. Carswell created that relationship." Lanzinger says this "misses the point. The General Assembly's classification of 'person living as a spouse' is a recognition by law of the relationship of unmarried and cohabiting individuals based solely on the similarity of that relationship to marriage."

Its shortcomings notwithstanding, Carswell effectively rebuffs the bait-and-switch tactics of cultural conservatives, who claimed a narrow purpose during the initiative campaign, then insisted on a broad interpretation after they won. Phil Burress, president of the Ohio group Citizens for Community Values (CCV), for instance, during the 2004 campaign dismissed the idea that the amendment would invalidate parts of the domestic violence law as "on its face absolutely absurd." After the amendment's passage, Burress' associate David Langdon filed legal briefs, including in Carswell, making that same "absurd" argument.

Groups like CCV insist that their intent is to protect marriage and not to harm gay people, yet they go far beyond marriage to deny same-sex couples any legal protection whatsoever. At long last, their mendacity and overreach are backfiring: By reading the Marriage Amendment narrowly to preserve protections against domestic violence for unmarried partners, Carswell sets a precedent for allowing other gay-friendly protections such as domestic partner benefits for state university employees.

Alternatively, had the Court upheld the conservatives' claim that the amendment invalidated the domestic violence law, it would have marked the amendment unconstitutional. The U.S. Supreme Court reaffirmed in Lawrence v. Texas in 2003 that the state may not use traditional morality to draw distinctions in the criminal law between married and unmarried couples.

Marc Spindelman, an Ohio State University law professor and an expert in constitutional law and lesbian and gay rights, stated after the ruling, "The Court does not say so expressly, but it has effectively promised that the Marriage Amendment will be read in a way that's conditioned by reason, not inflamed by the passions of traditional morality. In this sense, Carswell may, in time, turn out to have been the beginning of the end of the Marriage Amendment itself."

Spindelman suggests that Carswell will be of greatest interest in the 13 states whose gay marriage bans are framed in a broad way like Ohio's: Arkansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin.

Spindelman told me, "There are upsides and downsides to this ruling. On the upside, the Court gave us more than most close observers thought we could get. On the downside, the Court left us with a legal version of Jenga [the wooden block tower building game], where we need to figure out what the definition of 'all' [the attributes of marriage] is so we stay within Carswell's terms."

Spindelman criticizes Lambda Legal for focusing only on narrowing the amendment's effect instead of disputing the constitutionality of a broader interpretation, or making an affirmative case for gay couples. "It is possible to challenge the Marriage Amendment at both the retail and the wholesale level. Lambda has exclusively pursued a retail approach-in popular parlance, death by a thousand paper cuts-and I see no good reason why. It was the women's domestic violence coalition brief that tried to craft an argument on behalf of lesbian and gay victims of domestic abuse-not the Lambda brief."

Differences over strategy aside, Spindelman is upbeat. He presciently warned in Legal Times last year that Carswell would "teach cultural conservatives a lesson the anti-domestic-violence movement has been teaching abusers for years: There's a price to pay for the moral hubris it takes to treat people as pawns in your own game." And so Carswell has.

"Sicko," Michael Moore's indictment of America's healthcare system, proposes healthcare for all. Free treatment. Free drugs. All provided by the government. What's not to like? Before gay Americans rush to embrace state-run healthcare, we ought to think very hard about it.

Start with the basic proposition that healthcare is something gay Americans need more than most other Americans. For gay men, the need is obvious and the stakes are very high. The Centers for Disease Control and Prevention estimates that 232,000 gay men in the U.S. are living with HIV/AIDS. In 2005, male-to-male sexual transmission accounted for about 70 percent of new cases among males.

HIV disease is chronic and potentially fatal. Keeping it under control requires frequent visits with doctors, monitoring of blood, and a very expensive regimen of prescription drugs. All of this places disproportionately large demands on the healthcare system, including on patients, nurses, doctors, drug manufacturers, insurance companies, and taxpayers.

Over time, the life-saving drugs that have been available for a decade now often stop working effectively. HIV develops resistance to them. That means new drugs must replace the old ones.

Somebody has to provide, and to pay for, all of this expensive care. How do we do it? America's answer so far has been a hodgepodge of private insurance and public subsidy. In countries Moore would like us to emulate, the answer has been government-controlled healthcare.

I don't have answers about how to reform America's system, if at all. And it's difficult to talk about the issue in the abstract, since the devil will be in the details. But here are a couple of things that gay Americans, especially, ought to think about.

First, as a general matter, we should be wary of any proposal calling for greater government control. Historically, government has been an enemy of gay people. While that has begun to change, there is no reason to believe that government at the federal level and in most states will not continue to be an adversary for some time.

What might this adversary do to our healthcare? Any state-run system will mean government funding of hospitals, doctors, and drugs. With funding comes control.

Efforts will be made to control costs and decisions will be made about how to allocate limited budgets. Politics will govern those decisions, yet gays' political clout is small. Questions will be asked: How much of the public fisc should be devoted to paying for new drugs for people who continue to get themselves infected with an avoidable disease? How many HIV specialists do we really need and how much should we pay for their services? If we have to pay to treat their disease, shouldn't we be monitoring their lives more closely to prevent it?

There are rational ways of discussing these sorts of questions, but given our history with government, there is little reason to believe reason will dominate the political discussion. The questions will be answered by the people who gave us bans on immigration by HIV-positive people and the military exclusion.

Other countries with government-run healthcare - notably Moore's favorite countries, like Canada, Britain, and France - have much more enlightened attitudes toward homosexuality. There is comparatively less reason to fear turning such an important matter over to public authorities in these countries. The U.S. is different.

The private sector, by contrast, has led the way for equality. Unlike the federal government and most state governments, most large private companies now ban discrimination against gays and many offer health benefits to same-sex couples. That's not because they're nice; it's because they compete with each other for the best employees.

But if the government were the only game in town, as it would be under some proposals for healthcare reform, there would be no competitive pressure to ensure gay Americans are treated fairly. It's hard even to know how sweeping the consequences might be in a political environment still quite hostile to homosexuals.

Second, America is now the leader in medical advances of all kinds: education, treatment, and most importantly for our purposes, the development of new drugs. One of the reasons America spends so much more on healthcare than other nations is that it is a leader in these areas. Other countries free-ride on American research and development.

Tens of thousands of gay men in this country are alive today because profit-seeking private companies, with the help of public investment, researched and developed life-saving anti-HIV drugs.

But drug development is risky. Most new drugs are scrapped because they don't work or are dangerous. Creating and testing them costs a lot of money. Unless private investors can be tempted with the possibility of large profits, they won't take chances and drugs won't get developed.

Government-controlled healthcare doesn't mean drug development will stop. But there will be strong efforts to limit drug costs, which will limit profits, which will have some stifling effect on development. There will be some risk that not as many expensive new AIDS drugs will enter, or get through, the development pipeline. That could mean lives lost as resistance to existing drugs sets in.

None of this is decisive, even from a gay perspective, against all reform of healthcare. But nobody should pretend the choices are risk-free. And we should not indulge the fantasy that healthcare will ever be "free."