IGF CultureWatch

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."

It is important to keep our main focus on the struggle for gay freedom and equality here in the United States where the forces of anti-gay repression are constantly looking for ways to undermine and reverse our progress.

But it is also worth paying some attention to the abusive treatment of gays and lesbians elsewhere in the world. In many countries outside Western Europe, their situation is much more vulnerable than our own, in some cases dire. Gay progress in the U.S. has been aided by a growing social liberalization during the last 40 years; but in many countries those conditions do not prevail and the struggle of gays is much more difficult. Their advocacy movements are much smaller, ill-funded and more recent than our own, their governments much more repressive, and fundamentalist religion (Catholic, Protestant, Muslim) far more powerful than here.

Religious militia death squads kill gays in Iraq; gays are arrested and sometimes executed on arguably trumped-up charges of rape or pederasty in Iran; vigilante groups kill gays in Brazil; Nigeria is in the grip of contending Muslim and Christian sects competing to be more anti-gay; gays in Eastern Europe (Russia, Poland, some Baltic states) are barred from public advocacy and beaten up by skinhead hooligans while police watch complacently. And meanwhile His Holiness inveighs against gays from his Vatican throne while both Sunni Saudi Arabia and Shiite Iran export homophobic religion.

Little of this makes it into most mainstream newspapers, and none of it is reported it on the early evening television newscasts. It lacks the general appeal of the mindless antics of starlets and hotel heiresses. To follow most of this homophobic zealotry, you have to read the gay press, get on international list-servs, read a few blogs, and hunt out gay columnist Doug Ireland's valuable reporting.

The depressing part is that there are few ways we can help in any direct fashion. It is possible to hold demonstrations and vigils outside foreign embassies and legations, but while that may help raise the profile of the issue a bit in this country, it seems doubtful that they would influence foreign governments, religious fanatics, or militia death squads.

There are a few non-government groups that attempt to work on these issues, but it is hard to find out what they are doing or how effective they are. Several years ago Amnesty International adopted a gay-friendly policy, but they can always use more money and staff.

Following the example of the Soros Foundation which provided photocopiers, fax machines, and computers to dissident groups in Eastern Europe, the International Gay and Lesbian Human Rights Commission under former director Julie Dorf did valuable service in providing similar aid to Russian gays during the final years of the Soviet Union. But under present management it is not clear what they do-besides boycott Israel, a rare democracy in the region and the only haven for "Palestinian" gays, and issue press releases about harassment of cross-dressers in Latin American.

The small gay section of Human Rights Watch is supposed to monitor the condition of gays in many countries and is clearly overtaxed. Yet they criticize and seem to resent any outside attempts (and even some internal efforts) to support gay activism in those countries; seem insufficiently skeptical of charges religious authoritarian governments lodge against gays who are arrested, and seem infected with a kind of relativist multiculturalism that inhibits claims to natural human rights.

The American government could send letters of protest to foreign governments, but other issues obsess the current administration and its State Department. Their strenuous efforts to retain supporters and mollify opponents of the Iraqi war give them little clout to pressure foreign governments on other issues. In any case, it is hard to imagine the current president feeling much pain on behalf of foreign gays or alienating his domestic supporters by making efforts on their behalf.

We have a better chance of getting positive action from a Democratic president, so I hope gay Democratic contributors and supporters begin raising this issue with their candidates. Ask them what steps they will take to counter the repression of fellow gays and lesbians in other countries. Force them to ask their research staffs to look into the matter, get them on record, make them realize that this is a significant issue. The time to raise the issue is now while they are still soliciting gay votes and money, before they go all centrist after the primaries are over.

Several years ago I wrote a piece titled "Toward a Gay Foreign Policy," posted at the Independent Gay Forum. I still advocate the suggestions I made there. But we need to go further and plan what we want a Democratic administration to do and how we can press them to do it.