IGF CultureWatch

This article appeared on Examiner.com on October 30, 2006.

There's never been a same-sex marriage in Virginia, and they've been outlawed by statute for more than 30 years. So why are Virginia voters being asked to vote on a constitutional amendment to ban gay marriage?

Mostly because it's a bait-and-switch game. The proposed Ballot Question No. 1 is far broader than a simple ban on gay marriage.

Supporters say the amendment is needed in order to prevent activist judges from unilaterally changing the definition of marriage. But no liberal activists have yet been sighted in the Virginia judiciary. And that's no surprise because judges in Virginia are selected by the same legislature that has repeatedly passed bans on gay marriage, civil unions and domestic partnerships, including this proposed amendment.

In fact, Virginia is one of only two states where the legislature directly appoints judges to the state courts, including the state Supreme Court. It is inconceivable that Virginia judges, including four members of the Supreme Court, are going to impose gay marriage on the state. Virginia is not Massachusetts nor Vermont or New Jersey, and our judges are certainly more conservative than those in New York, where the high court recently upheld the state's ban on gay marriage.

The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law. Take a look at the actual text of what journalists are inaccurately calling "the proposed ban on gay marriage."

The first sentence of the amendment reads:

"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions."

That sentence is what amendment supporters want you to read. But read the rest of it:

"This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." [emphasis added]

Note the italicized words. The use of the word "or" makes this a very broad law.

Supporters of the amendment rely on the assurance of Virginia Attorney General Robert McDonnell that passage "will not affect the current legal rights of unmarried persons."

But lawyers disagree. The firm of Arnold and Porter issued a 71-page analysis of the amendment coming to starkly different conclusions. Their lawyers concluded that the amendment could be interpreted by Virginia courts to invalidate rights and protections currently provided to unmarried couples under domestic violence laws, block private companies from providing employee benefits to domestic partners, and prevent the courts from enforcing child custody and visitation rights, as well as end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: "This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state."

We should not pass constitutional amendments whose effects are so uncertain. A simple ban on gay marriage would be redundant, but it would have the virtue of clarity for the courts. The actual amendment invites judges to review every private contract, every employee benefit, every legal arrangement between unmarried partners.

That should be anathema to opponents of judicial activism. It should also be a frightening prospect to Virginia businesspeople. A growing number of companies are offering benefits to the domestic partners of gay employees, and they will want to locate in states where those benefits are clearly legal.

This amendment goes too far. But even its first sentence - the ban on gay marriage - is unworthy of a state that was the birthplace of American freedom. It is a cruel irony that this amendment to restrict contract rights and exclude loving couples from the institution of marriage is to be added to Virginia's Bill of Rights, a document originally written by the great Founder George Mason.

Mason's eloquent words inspired Thomas Jefferson in writing the Declaration of Independence and James Madison in writing the Bill of Rights for the U.S. Constitution. We should not add language to Virginia's Bill of Rights that would limit rights rather than expand them.

Gay marriage is not legal in Virginia, and there's no prospect of changing that in the foreseeable future, whether by legislative or judicial action. Ballot Question No. 1 is unnecessary and will create legal uncertainty.

David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer.

It has happened again, and it's going to keep happening.

A Minneapolis bus driver recently complained that an advertisement for a gay magazine that ran on the back of some city buses offended her religious beliefs about homosexuality. The ad depicted the face of a young man and carried the slogan, "Unleash your inner gay." The magazine it advertised is not pornographic and nothing in the ad itself was even sexually suggestive.

Nevertheless, the driver told the city transit authority that she could not, in compliance with her faith, drive a bus that carried such an ad. The transit authority at first accommodated her wishes by agreeing to assign her only to buses that didn't carry the ad.

But after union leaders and some public officials complained that the accommodation sent a message of "intolerance" and disrespect for the "diversity" of the city's riders and other bus drivers, transit officials announced they would "be reluctant" to grant such requests in the future.

How should those of us who support equal rights for gay people think about incidents like this? Should we magnanimously try to accommodate the deep religious convictions of those who oppose gay civil rights, risking that these objections will proliferate and undermine equality? Or should we reject all such accommodations, no matter how small, subverting the very principles of pluralism and tolerance that the gay civil rights movement has been built upon?

I generally support accommodations for sincere religious objectors, certainly where the accommodation can be made at little or no cost to other legitimate public interests. These other public interests include administrative burdens and hardship to the class of people protected by the law (e.g., an antidiscrimination law).

In the case of the Minneapolis bus driver, the public interest was largely administrative and appeared to be no more than trivial in magnitude. It was easy to assign this single driver to one of the majority of buses that didn't carry the offending ad. (If half the bus drivers refused to drive buses with ads that offended them, we'd have a different issue.) We have no reason to believe that the driver's religious objections were not sincere or that they were part of an orchestrated campaign to drive gay-themed ads off the city's buses.

But for a generous policy of accommodations to work in a diverse society, we must have some reasonable self-restraint on the part of potential objectors. They must search their consciences in good faith to ask whether compliance (in this case, driving the bus to which one is assigned) really would violate a religious command to the contrary. Nobody thinks bus drivers endorse the messages or products in the ads on the buses they drive. I doubt that even most religions that condemn homosexual acts would really require that an adherent not drive the bus under these circumstances.

The risk is that drivers who are simply uncomfortable with certain ads will (either mistakenly or dishonestly) label their objections "religious" and demand reassignment. This problem is especially great when it comes to anything gay-related because many people still have a gut-level "ick" reaction to homosexuality. If challenged, they often vaguely attribute this reaction to religious teachings.

A policy of accommodation cannot work if objectors insist on a right to be made comfortable. Our society is much too diverse, religiously and otherwise, for that.

By saying they would "be reluctant" to reassign offended drivers in the future, transit authorities struck a sensible balance. They leave open the door to a possible accommodation in isolated cases while signaling their skepticism about such claims in a way that may (1) dissuade impostors and (2) cause sincere religious objectors to examine more closely their own religious scruples before requesting an accommodation.

Less persuasive are "diversity" and "tolerance" rationales for denying accommodations like this. If transit authorities had accommodated a driver's religious objections by removing the gay-themed ads or by permitting a driver to refuse entry to homosexual riders, that would truly signal intolerance.

But here, by hypothesis, we can accommodate a religious objector at no apparent cost to anyone. The only thing lost is the corrosive satisfaction of knowing that a dissenter from our values has been made to heel. I'm not sure this satisfaction is all that different in form from the old rationale for sodomy laws, under which the state enforced the nosy preferences of the moral majority even though it could show no appreciable harm to anyone from the activity prohibited.

And why don't diversity and tolerance include religious dissenters from majoritarian values? It shows no intolerance of gay people to accommodate sincere religious objectors where the accommodation will cause no harm; on the contrary, it shows tolerance for religious diversity.

Keeping the culture war at a manageable level of conflict requires both sides to make some sacrifices. The state should accommodate religious objectors where the cost of doing so is small. But religious objectors should accommodate state interests where doing so is religiously permissible and does little more than make them uncomfortable.

I am not sure either side is capable of this sort of self-restraint. Many people seem to want to turn up the volume and temperature by using every confrontation as a chance to accuse the other side of prejudice and bad faith. It doesn't have to be that way.

If not the morning after the election, then soon thereafter, we will all move from the false certitudes and pretended stark choices of the political contest to the contingencies of actually having to govern. And given the nastiness and disconnect from reality of some campaign ads, you are probably as ready as I am for this election season to be over.

Lately, my email inbox has been a competition between the Democratic National Committee and a horde of people who want to enlarge my penis, send me winnings from a lottery I never entered, renew my account information at banks I never heard of, and appoint me the American agent for various well-funded overseas enterprises that are desperate to receive the benefit of my investment skills. I am particularly doubtful as to why I am being wooed so assiduously by someone who signs his messages, "Governor Howard Dean, M.D."

I love the fundraising emails that repeat a link to facilitate online giving after every couple of paragraphs, like a child tugging at its mother in the supermarket: "Mommy, Mommy, click on this, click on this!" If voters are really as stupid as campaign managers seem convinced that we are, then perhaps we shouldn't blame those Diebold electronic voting machines for any strange results that occur on Election Day.

On October 18, Gov. Dean sent me one of those "Feed me! Feed me!" emails seeking dollars from "people just like you who believe that every Democrat should own a piece of this party - in contrast to the special interests and lobbyists that own the Republican Party (as if Americans needed another reminder of that, Ohio Republican Congressman Bob Ney pleaded guilty to corruption charges on Friday)." Somehow, Dean neglected to mention Louisiana Democratic Congressman William Jefferson, who was videotaped accepting $100,000 in bribe money, $90,000 of which was later found stuffed in his freezer.

On October 19, Hillary Clinton sent me an email on behalf of Tim Mahoney, the Democrat running for Mark Foley's seat in Congress. Inevitably, she talked about the need "to protect our children," just as Maryland Republican senatorial candidate Michael Steele does in a TV spot. This annoyed me despite my own criticism of Foley's abuse of his office, because few people honestly think of 16-year-olds as children, and the Democratic cries of outrage have been over-amplified by opportunism.

Sen. Clinton's message continued, "Florida's 16th district deserves better representation than Mark Foley - and we all deserve a better Congress!" While I agree that Congress will be improved by getting rid of the Republican leadership, I see no evidence that, the page scandal aside, Rep. Foley was such a poor representative in comparison to many of Clinton's Democratic colleagues.

Let's have a look at the Human Rights Campaign's Congressional Scorecard. Mark Foley's scores for the 109th and 108th Congresses: 75 and 88. Sen. Clinton (D-New York): 89 and 88. Sen. Dianne Feinstein (D-California): 88 and 75. Sen. Tom Harkin (D-Iowa): 78 and 75. Sen. Evan Bayh (D-Indiana): 89 and 75. Sen. Bill Nelson (D-Florida): 89 and 75. Sen. Mark Pryor (D-Arkansas): 89 and 63. Sen. Carl Levin (D-Michigan): 78 and 63. Sen. Max Baucus (D-Montana): 67 and 50. Senate Democratic leader Harry Reid (D-Nevada): 67 and 63.

To be sure, Democrats overall were much better than Republicans. For example, ten Democratic senators earned perfect 100s from HRC in the 109th, compared to one Republican, Lincoln Chafee (R-Rhode Island). But the close races that will decide who controls the 110th Congress are between particular individuals, not statistics. Red-state Democrats, in order to defeat their Republican opponents, typically run to the right. For example, Tennessee Democratic senatorial candidate Rep. Harold Ford earned HRC scores of 25 and 44 in the 109th and 108th Congresses, after earning a 100 in the 107th. That shows the effect higher ambitions can have on a Bible-Belt politician.

None of this is meant to discourage those who seek a change in leadership on Capitol Hill. I am simply trying to administer a dose of reality. Even if the Democrats take control of both houses, they will almost certainly have narrow majorities, and the overall numbers on gay-related issues are unlikely to change much. The main difference, and it's a big one, will be in who gets to set the legislative calendar and run committees. Imagine the extraordinary moment when Rep. Barney Frank (D-Massachusetts, HRC score 100) takes over the Financial Services Committee.

The value of a Democratic Congress would not be that it would pass pro-gay legislation (which would only provoke a presidential veto), but that it would apply brakes to the hell-bound train of the nation's current leadership. That may be reason enough for deciding your vote this time out, but let's keep our eyes open. The last Democrat-controlled Congress gave us Don't Ask/Don't Tell and a ban on immigration for HIV-positive persons.

Looking ahead to the 2008 presidential race, the Democrats will need more than public disaffection with a retiring George W. Bush. They will need a candidate who can appeal to voters across the political spectrum. As it happens, Sen. Barack Obama (D-Illinois, HRC score 89 for the 109th) just announced he is considering a run. He is bright, attractive, inspiring, and a deft centrist. He has charisma Hillary can only dream of. Please don't throw cold water on me for a while. I am entitled to dream, aren't I?

Religious and social conservatives generally present themselves as vigorous opponents of homosexual sex, gay visibility, gay equality and "the gay identity."

They attack the political left for encouraging gays to become more visible and providing an incentive to adopt a "gay identity" by passing gay non-discrimination legislation, supporting gay marriage and creating "special protections" for gays that create a safer space for them to come out of the closet and promote their own equality.

Yet one of the ironies of politics is that the Law of Unintended Consequences means that people's efforts often have results directly contrary to their goals. In this instance, religious and social conservatives turn out to be among the primary generators and firmest support of gay visibility and "gay identity."

Here's why.

Christian churches for centuries have condemned, persecuted and promoted hatred of homosexuals. This meant that homosexuals had to disguise their fundamental erotic and emotional nature from church, state, neighbors, and blackmailers, evade detection and prejudice, yet contrive somehow to find partners who shared their desires. So instead of being just another moderately interesting minority attribute, a person's homosexuality became a very significant part of his or her life and self-concept.

In the same way current attacks on gays and gay equality by religious or political leaders are an affront to every gay person's sense of his own dignity and self-worth. And eventually they make most gays realize that their homosexuality is an important part of their lives, induce closeted gays to come out and make gays who were not politically involved become more assertive.

Social conservatives still haven't quite grasped after more than 40 years of gay liberation that gays are not going back into the closet, abandon their dignity and self-esteem, or succumb to political suppression or religious calumny. The more they attack gays, the more they increase our visible numbers.

Some empirical evidence for this is provided in a new study by researcher Gary Gates of the UCLA Law School's Williams Institute based on data from the Census Bureau's 2005 American Community Survey sample of 1.4 million Americans.

The survey found that 30 percent more gay and lesbian couples identified themselves to the Census Bureau in 2005 than in 2000: 594,000 in 2000, and an estimatd 777,000 in 2005, a remarkable increase. Gates allows the possibility that more gays are forming committed same-sex relationships, but says that even if so, it hardly explains such an increase.

Gates says a more likely explanation is a greater willingness of existing same-sex couples in 2005 to acknowledge their relationship-and thus their sexual orientation-to the Census Bureau.

Even more significant for our purpose is the fact that states which have or had in 2004 and 2006 battles over Constitutional amendments to prohibit gay marriage had greater than average percentage increases in gay couples. Arizona, Colorado, South Carolina, Tennessee, Virginia, Wisconsin, Ohio, Missouri all had increases above the national average. Wisconsin showed a stunning 81 percent increase in the number of acknowledged same-sex couples.

People can get used to a certain level of discrimination, but the breaking point seems to be when someone tries to take away something people already have-as the state constitutional bans of gay marriage do. It is not true that they change nothing: They remove the possibility of electing sympathetic officials and lobbying the legislature for the right to marry. In other words, they make it much harder to achieve one of our ultimate goals-as they are intended to. That plus the indignity of having their relationships designated as not equal to heterosexual relationships made a lot of people angry enough to stand up and acknowledge themselves.

I am far from asserting that the more gays are attacked, the better it is. Obviously verbal and political attacks can fuel hostility and even promote hate crimes. In politics, however, any attack can produce a counter-reaction, and that reaction may turn out to be more significant in the long run.

If in virtue of being attacked and insulted more gays come out, then more people will get to know gays, more skeptics will gradually decide that we are decent people who should be treated equally, and little by little prejudice will be chipped away.

Don't look now, but there are gays and lesbians in the GOP.

That's right, friends. Gay men and lesbians not only vote Republican, they work for Republicans, too.

Spooky, huh?

I know. Not really. We've known that for a while. We ourselves know that gays and lesbians are a diverse people. We don't all look alike, talk alike, think alike. We have different perspectives, different priorities, make different choices. That's all good. Being gay and lesbian doesn't define everything about who we are.

And yet it seems that certain types of Republican voters are, in fact, spooked.

I guess they haven't been paying attention on Pride, when we march down the streets of American cities, chanting things like, "We're here, we're queer," and carrying signs that say, "We are everywhere."

National Republican leaders, of course, have known that there are gay staffers and officials in the GOP. And it seems that some of them-even publicly homophobic officials-may, in fact, be supportive in private.

The Washington Post notes that when Robert Traynham, chief of staff to Sen. Rick Santorum (R-Pa.), confirmed a rumor that he was gay, Santorum responded by calling him "a trusted friend�to me and my family."

This from a man who had compared homosexuality to bestiality.

Certain members of the GOP, it seems, have a tangled relationship to actual, living gay people, treating individuals one way in private and talking about us as a group another way in public. That is, the GOP leadership was operating on a more viperous version of "Don't Ask, Don't Tell." As long as people didn't ask them whether they knew and liked gay people as individuals, they weren't going to tell anyone they did.

But what I wonder is what's going on with the conservative, Republican "values voter." Did they really think that the only gay people in power in America were Democrats? Did they actually think that all gay people can be boxed in a container labeled "progressive"?

Maybe they did.

Maybe a significant part of anti-gay sentiment among conservatives stems from the idea that being gay automatically means we have values different from their values. Maybe they don't quite understand that, yes, there are gays and lesbians who are pro-choice, liberal, atheist Democrats-and then there are gays and lesbians who are pro-life, conservative, church-going Republicans.

We're on both sides of the aisle, and on both sides of many, many issues, from global warming to the Iraq war. We really are everywhere.

And so maybe the Foley scandal, awful as it was, will lead to something good.

Maybe with the Foley scandal, and the circulation of The List-a list of Congressional staffers rumored to be gay-and all the talk in the media about gay GOP staffers, maybe all those things together will lead to a values voter realization that the fact that someone is gay or lesbian tells us absolutely nothing else about them.

"Gay" doesn't tell us what someone's politics are. "Gay" doesn't tell us what someone's life is like. "Gay" doesn't tell us how much money someone has, or how they vote, or what newspapers they read, or what clothes they wear or what they look like.

Really, "gay" tells us nothing about someone except-well, that they're gay.

In November, voters might kick out Republican legislators partly because of Foley fallout. It will be hard to tell whether they are reacting so strongly because of the growing revelations that Foley himself and some key GOP staffers are gay, or because of the constant media connection made between the words "Republican" and "pedophile."

But I hope there will come a time when voters won't react negatively when they find out someone in power is gay. In fact, I hope that they won't react at all.

I hope someday that the fact that someone-even an elected official; even a staffer-is gay will just be treated as something interesting about them, like the fact of left-handedness or of a preference for chocolate ice cream.

I hope someday that the fact that there are gays and lesbians in the GOP will be unremarkable.

I hope someday that when gays and lesbians spook others, it's because we're wearing fabulous Halloween costumes, not because we happen to be gay.