IGF CultureWatch

Sometimes you just need to ask the right person. On April 9, 1991, three Washington activists met with Tom Williams, then director of the Country Human Rights Reports Team at State Department headquarters in Washington's Foggy Bottom. Michael Petrelis of ACT UP, Margaret Cantrell of Gay and Lesbian Watch, and Barrett Brick of the World Congress of Gay and Lesbian Jewish Organizations wanted State to include anti-gay incidents in its annual report to Congress on human rights abuses around the world.

They had done their homework, and provided Williams with evidence of incidents that should have been in the 1990 report. Williams was persuaded, and the report has included gay-related incidents ever since.

Petrelis, now a blogger based in San Francisco, was still on the case when State released its 2005 Country Reports on Human Rights Practices on March 8. Not only has he stayed in touch with State's Bureau of Democracy, Human Rights and Labor as well as the desk officers for individual countries, he worked with British activist Peter Tatchell last year to declare December 4-10 "Report Antigay Rights Abuses to U.S. State Dept. Week."

The success of Petrelis and his international network of collaborators is evident in the report. It includes numerous anti-gay incidents, some familiar from gay press reports:

• In Poland, gay activists braved violent counter-demonstrators to march in Warsaw and Poznan despite being denied permits; they subsequently won a Warsaw court ruling.
  
  
• In Zimbabwe, thugs again harassed Gays and Lesbians of Zimbabwe into withdrawing from an international book fair.
  
  
• In Jamaica, an AIDS activist was shot to death, and the gay rights group J-FLAG reported abuses "including police harassment, arbitrary detention, mob attacks, stabbings...."
  
  
• Under Shari'a law in many Muslim countries, homosexuality was punished by death. In Iran, a number of men, including two teenagers, were executed apparently for homosexuality though charged with other crimes.

There were also some positive developments:

• In China, "Gay men and lesbians stated that official tolerance had improved in recent years."
  
  
• In lowland areas of Laos, "there was wide and growing tolerance of homosexual practice, although societal discrimination persisted."
  
  
• In the Czech Republic, "the lower house of parliament passed a law that recognizes the legal validity of gay civil partnerships."
  
  
• In Brazil, a federal court ruling granted partner benefits to same-sex couples.

Paula Ettelbrick, executive director of the International Gay and Lesbian Human Rights Commission (IGLHRC), praised the report:

State Department officials who have worked to include documentation of human rights violations against LGBT people are to be commended, as are the many global activists who brought these violations to light.

In contrast, the Human Rights Campaign used the report's release mainly as an excuse to bash the U.S. government for its recent vote against consultative status for gay organizations at the United Nations. HRC President Joe Solmonese said:

The State Department report is enlightening but it won't be effective if the U.S. government keeps siding with abusers like Iran in supporting silencing human rights watchers.

This is patently false, since the reports are used by lawyers for asylum seekers to bolster their clients' cases.

Unfortunately, some people are so fixated on their opposition to George W. Bush that they are reluctant to give credit to anyone in the federal government who might be doing something worthwhile. Last year, when Petrelis praised the 2004 report, some gays took great offense that he would say anything nice about the Bush Administration.

But the annual human rights report has value regardless of one's views of Bush. The plight of gay people in so many countries is far too dire to subordinate it to partisan political concerns. Indeed, the 1991 breakthrough by Petrelis and his colleagues occurred during the presidency of Bush's father.

I spoke with Petrelis the other day, and he wants to ensure that activists in each country are made aware of the relevant contents of the State Department report. My own local activist group is a member of the International Lesbian and Gay Association (ILGA), and I have pledged to make a project out of contacting as many foreign gay organizations as I can find and forwarding them the information.

When you get desperate e-mail pleas from gay people around the globe, as I occasionally do (and I am not talking about scam letters, which I also receive), it can make you feel pretty small and helpless. When I read those pleas, such as one a few years back from an Iranian in Indonesia who faced deportation back to his native country, where he would likely have been killed, I can do little more than refer the person to IGLHRC and the U.N. High Commissioner for Refugees (UNHCR), and offer some words of encouragement.

But small acts can help save lives. My Iranian correspondent found asylum in Canada. Of course, he is a drop in the ocean given the magnitude of the problem worldwide. Many cannot or do not wish to leave their countries. For them, international visibility and support are crucial.

You can play a part in helping oppressed gay people around the world. The Internet is an invaluable tool. Organizations offering online resources include IGLHRC, ILGA, Human Rights Watch, Amnesty International, and UNHCR

As Michael Petrelis, Margaret Cantrell, Barrett Brick and Peter Tatchell have proven, individual voices can and do make a difference.

May the federal government deny funds to universities that ban military recruiters from campus? That's the issue placed before the Supreme Court in Rumsfeld v. FAIR, which challenges the constitutionality of the "Solomon Amendment." While gay-rights groups are strongly backing the universities, it's not a simple question of "pro-gay" vs. "anti-gay." The case implicates gay rights only because it involves a larger phenomenon: the federal government throwing around its enormous economic weight to curtail the exercise of individual rights and federalism.

The Solomon Amendment denies almost all federal funds to any university that forbids military recruiting in its facilities. An entire university loses this funding even if only a "sub-element" within the university (e.g., a university's law school) denies access.

The law runs afoul of many universities' non-discrimination policies. The military bans service by openly gay personnel. Thus, many universities would like to prohibit military recruiting on their campuses, just as they exclude other employers that discriminate for reasons they believe are invidious.

At the same time, as a practical matter, universities can't afford to lose federal funding. The Solomon Amendment puts at risk more than $35 billion annually for, among other things, critical university-based scientific and medical research. For some schools, it amounts to as much as 20 percent of their budgets.

The constitutional argument against the Solomon Amendment entails two steps:

First, do the schools have a constitutional right to exclude military recruiters?

Second, assuming they do, is it violated when the federal government threatens to withhold funds if they exercise it?

The schools, backed by gay-rights groups, claim that excluding military recruiters is part of their First Amendment freedom of association. This claim rests heavily on a 2000 decision, Boy Scouts v. Dale, in which the Supreme Court held that the Boy Scouts had a constitutional right to exclude a gay scoutmaster despite a state anti-discrimination law requiring that he be admitted.

Here is where some irony begins. When Dale was decided, most gay-rights activists denounced it as "anti-gay." Yet it is the very freedom recognized in Dale that they now invoke. Thus, a decision defending the right to exclude gays is now being used to defend the right to exclude those who exclude gays. At the same time, some conservatives who hailed Dale as a great victory for freedom five years ago are now arguing for a crabbed interpretation of it.

If the Supreme Court is serious about associational and speech rights, the schools should win on the first question. The government could not mandate that universities allow military recruiters to use their facilities.

But can the government deny them funds when they don't provide access to military recruiters? That's the second and much harder question.

Generally, the federal government can tell the states or private entities how to use specific grants they receive. For example, it can require that education funds be spent on education, not road projects.

However, the government generally may not condition the receipt of a government benefit on the relinquishment of an unrelated constitutional right. For example, it cannot give food stamps only to people who agree not to criticize the war in Iraq. This is called the "unconstitutional conditions" doctrine.

The Solomon Amendment is closer to an unconstitutional condition than to a constitutional limit on the use of funds. It attempts a sweeping denial of almost all federal assistance to an entire educational institution merely because one part of it-a part that might itself receive no federal money-refuses to allow the military to recruit on campus. The condition (the university must allow on-campus military recruitment) and the purpose for which the conditioned funds are spent (say, for cancer research) are unrelated.

If that's right, however, it might call into question the government's power to deny federal funds to universities that discriminate on the basis of race or sex, a funding condition the Supreme Court has approved. Perhaps a principled distinction can be made between the military-recruiting condition and the anti-discrimination condition. The anti-discrimination condition directly relates to all aspects of life, including research and employment, in every university that receives federal funds; the military-recruiting condition does not relate directly to, say, a study on improving soybean production.

But my guess is that the justices will not even try to make the distinction. Conservatives on the Court will probably uphold the Solomon Amendment because it involves the claimed needs of the military; liberals on the Court may uphold it because they don't want to undermine federal power.

Meanwhile, few seem to have noticed the real issue. Federal power nowadays is not exercised primarily through the threat of criminal punishment. In an age where its budget reaches the trillion-dollar mark, federal power is now exerted most effectively through the conditions attached to that enormous spending. Such economic might has a decisive effect in both the marketplace of goods and in the marketplace of ideas and other freedoms.

The federal government thus "buys" through economic coercion what it could not directly regulate. Either way, the result is the same: less freedom and diversity. In this case, every major educational institution in the country has been cowed on an important matter of principle. The states, too, can be brought to heel by such conditions imposed by federal authority.

Gay rights are at stake in this case not because one side is necessarily "anti-gay," but because the future of freedom in the age of the federal behemoth is itself at stake.

Much criticism has been leveled at gay organizations for their reluctance to make much ado about the Iranian government's public hanging of two gay youths this past summer. The incident was not a rarity in the Islamic world, but the availability of photographs documenting the murder stunned a gay community complacent when it comes to the rights of gays abroad-perhaps because of our own, relatively tame, struggles here at home.

While the outrage over gay organizations' indifference to the plight of Iranian gays was necessary, it ought to be directed toward a political situation where gay Americans can have more influence: the Arab-Israeli conflict.

In this tumultuous dispute, there is plenty of room for debate about the control of land, whether or not Israeli responses to terror are too aggressive, and what the final political settlement should entail. But let there be no mistake: In Israel, gays enjoy the freedoms and tolerance of a liberal, Western democracy. In the disputed territories run by the Palestinian Authority, gays are routinely harassed, tortured and murdered.

A 2002 article in The New Republic documented the dire predicament of several gay Palestinians. A 21-year-old recalled that he "was forced to stand in sewage water up to his neck, his head covered by a sack filled with feces, and then he was thrown into a dark cell infested with insects and other creatures he could feel but not see." One man fled to Tel Aviv, only to be captured by the Palestinian police upon his return to Nablus, a city in the West Bank.

"They put him in a pit," a friend of the man recalled. "It was the fast of Ramadan, and they decided to make him fast the whole month but without any break at night. They denied him food and water until he died in that hole." Tel Aviv, Israel's flourishing gay hub, has become for Palestinian gays what Miami is for Cubans: a refuge of freedom from tyranny.

In August, Israel evacuated settlers from the Gaza strip, helping to make way for the eventual establishment of a Palestinian state. But what would a Palestinian state actually look like? That is a question that the United States and Israel must ask before acceding to its creation. Surely, the United States should not expect Israel to agree to live alongside a neighbor that is highly militarized, territorially aggressive, and run by Islamic extremists. Imagine if Canada fit this profile: would we not have serious problems with such a prospect?

Comments earlier this month from Hamas's man in Gaza-newly emboldened by the Israeli pullout-are not encouraging. On the question of gay rights, Mahmoud Zahar recently said, according to the Times of London, "Are these the laws for which the Palestinian street is waiting? For us to give rights to homosexuals and to lesbians, a minority of perverts and the mentally and morally sick?" Hamas is a major player in Palestinian politics; in January, it won 76 out of 118 Gaza municipal council seats in the first-ever election held in the territory.

Granted, gays are oppressed in most areas of the world, so why should the United States pay any particular attention to Palestinian ones? Because our involvement in the Arab-Israeli peace process gives us the ability to influence Palestinian politics.

Advocating that the creation of a Palestinian state be conditioned on human rights, and specifically gay rights, is one step gay groups can take. The United States is intimately involved in the creation of a two-state solution, and it would be an affront to the ideals of this country were we to encourage, never mind preside over, the creation of an Islamist regime intent on murdering gay people.

For the same reason that we must see democracy through in Iraq-in order to leave that country behind in a better state than in which we found it-the United States and the international community have the exact same obligation in helping Israelis and Palestinians.

Not surprisingly, gay rights groups have ignored gay Palestinians, as has the pre-eminent human rights organization, Amnesty International. The Palestinian "struggle" has long been a cause celebre for the left and it is tempting to view the Palestinians as an oppressed underdog fighting the imperialist, apartheid Israeli state.

As difficult as life may be for the Palestinians (a predicament caused almost entirely by their support for terrorism and corrupt leaders), nothing can excuse their systematic oppression of gays. By standing up for the rights of gay Palestinians, groups like Amnesty and the Human Rights Campaign may lose support from their more radical members. But these organizations are worth nothing if they remain indifferent to the fates of people they are intended to protect-all for the purpose of maintaining harmony on the left.

While gay-rights groups have not yet announced their opposition to the nomination of John Roberts to the Supreme Court, that declaration is only a formality. They will politely wait until the Senate has conducted hearings and then come out swinging against him. Whether or not they are right to oppose him, one basis for their likely opposition should be dispelled. Abortion rights are not gay rights. And when it comes to constitutional law, Lawrence is not Roe.

Typical of gay activists' reaction to the Roberts nomination was that of Joe Solmonese, executive director of the Human Rights Campaign. Writing for the online edition of the Advocate, Solmonese warned that Roberts "has an extremely disturbing record in opposition to Roe v. Wade," the historic 1973 Supreme Court decision announcing a constitutional right to abortion. Indeed, abortion has become the litmus test for gay groups in deciding whether to oppose him.

Yet abortion is not a gay issue in practice or in principle. In practice, gay couples are the least likely in the land to produce unwanted pregnancies. Procreation for gay couples typically involves months of planning and thousands of dollars in investment, requiring the use of sophisticated reproductive technology or the cooperation of a surrogate parent. "Oops babies" are simply not a phenomenon common to gay life. Gays thus have less practical need for the option of abortion than do heterosexuals.

Yes, a gay woman could become pregnant through rape or consensual heterosexual sex. She might then want an abortion. But this no more makes abortion a "gay" issue than the fact that gay people die in plane crashes makes aviation-safety regulation a gay issue. Not everything that could conceivably happen to a gay person is thereby a gay issue.

Why then do gay groups make abortion a test of a politician's or a judicial nominee's commitment to gay rights? One answer to this question is that there's a demonstrated correlation in polling between opposition to abortion and opposition to gay equality. When a person is silent on gay issues, the next best indicator of his likely views is his stand on abortion. There are people who oppose abortion and support gay rights, of course, but these are the exceptions.

But gay-rights groups go further than this, insisting that there's a connection in principle between abortion rights and gay rights. That supposed principle is the right to privacy. "The privacy rights decided in Roe were at the core of the landmark Lawrence v. Texas sodomy case," Solmonese argues, referring to the 2003 decision in which the Supreme Court declared sodomy laws unconstitutional.

This is wrong. True, the constitutional right to privacy underlies both Roe and Lawrence. But the mere fact that both opinions spring from the same root does not mean the loss of one will erode the other.

For starters, it's remarkable how little the decision in Lawrence relies on Roe. The Lawrence opinion called on a phalanx of earlier privacy precedents and other authorities but mentioned Roe only sparingly, and never for a crucial point. The reason is obvious. Even for many liberal scholars, the reasoning of Roe is an embarrassment.

As a matter of both the individual and societal interests at stake, Roe presents a much weaker case for privacy protection than does Lawrence. First, the individual's privacy interest in abortion is weaker. Both abortion and sex involve things that are deeply personal to people and so implicate what some theorists call "decisional privacy." But there the similarity ends. Abortions are performed outside the home, often involve payment to state-licensed medical professionals, and always destroy an unwilling third party (the unborn child). Sex, as constitutionally protected, involves none of these things. It's typically done in the home, involves no commercial exchange, and imposes on no unwilling third party. Sex is a classically "private" activity in a way that abortion is not.

Second, the state's interest in regulation is much stronger in the case of abortion than in the case of sodomy. Every abortion kills an unborn child who has no choice in the matter and who is, at the very least, a potential person. The stakes are high. By contrast, the state of Texas in Lawrence could not come up with a single reason for prohibiting homosexual sodomy except "morality." Abortion is always killing; sex is often loving.

Just about everybody gets this distinction, including the opponents of gay equality. Much as social conservatives may disagree with Lawrence, they will not be organizing mass protests and annual marches on its anniversary thirty years hence, as they do now against Roe. While the sodomites may be harming themselves, they reason, at least they're not killing others.

To resolve both the policy and constitutional matter of abortion, we must surely weigh the autonomy interests of the individual woman. But we must also analyze the moral and legal status of the unborn child. Is it human life entitled to all the rights of a person? Or is it just neutral growth matter, inhabiting a woman's body, which she may dispose of at will? Or is it something in between?

These questions involve complicated matters of biology, medicine, religion, and moral reasoning. I have not answered them to my own satisfaction. But I am quite sure the answers do not depend on anything intrinsic to the case for gay rights.

She was an important justice, but not a great one. Sandra Day O'Connor was important because, as we have been told ad nauseam, hers was the Court's "swing" vote, negotiating between the liberal and conservative blocs. She was not great because no enduring constitutional principles she announced will survive her tenure. On gay legal issues, however, she was quite good if mostly passive.

Justice O'Connor mattered in many cases that mattered because, for her, every case was a new universe to be judged on the basis of particular facts whose importance could only be known by consulting Justice O'Connor. Her decision-making was almost entirely free of great principles and guiding legal theories, which may seem admirably undogmatic but was actually maddening. She announced that the government could not place an "undue burden" on abortion, but nobody knew what this meant until O'Connor told us in a given case. She proclaimed the government could not "endorse" religion but, again, what this meant depended just on what O'Connor said.

She decided cases with the eye of a legislator, which is what she once was. So consider, for example, that O'Connor once decided that airports could ban people who solicit donations for political and charitable causes - on the theory that this activity might disrupt pedestrian traffic when travelers stop to hear pitches for donations. But airports in her view could not ban people who distribute (or even sell!) literature for political and charitable causes - on the theory that this activity would not disrupt the flow of pedestrian traffic in the airport terminal because interested travelers would be more likely to take a pamphlet and move on. Her view became constitutional law. It was this kind of policy-oriented hair-splitting that made her "important," but hardly great.

For gay people, she was pretty good. She confronted gay-rights claims in five cases during her 24-year tenure, and got four of them right. Her first encounter with a gay-rights claim was not promising. In Bowers v. Hardwick, decided in 1986, she joined a majority of the Court that upheld sodomy laws. Notably, she did not join an especially nasty anti-gay concurring opinion by Chief Justice Warren Burger, who suggested that homosexual sodomy was worse than rape.

In 1995, in Hurley v. GLIB, she joined a unanimous opinion upholding the right of the St. Patrick's Day parade in Boston to exclude a gay contingent. Considered a loss by some gay-right advocates at the time, the decision was actually a victory in that it upheld the right of private speakers to control their own message. The right that allows the Hibernians to exclude gays from their parade is the same right that allows gays to exclude Fred Phelps from the annual gay pride parade.

In 1996, in Romer v. Evans, O'Connor joined the majority in striking down a Colorado state constitutional amendment banning all civil rights protections for gay people. It was the first out-and-out victory for gay-rights litigants in the Court's history. It put a stop to a movement that threatened the political progress made by gay advocates in cities across the country. It also declared that "animus" against gay people is not a legitimate basis for legislation under the U.S. Constitution.

In 2000, in Boy Scouts v. Dale, O'Connor once again joined the majority in declaring that the Boy Scouts of America had the right to exclude an openly gay scoutmaster. Also considered by many to be a defeat for gay rights, the decision was really a win. The opinion affirmed a robust freedom of association, the same freedom that had shielded fledgling gay groups from government persecution in the 1960s through the 1980s.

In 2003, in Lawrence v. Texas, Justice O'Connor joined the majority in striking down a law banning homosexual anal and oral sex. Notably, she did not join the majority in striking down all sodomy laws as a violation of a constitutional right to privacy. Instead, O'Connor focused on the fact that the Texas law targeted only gay couples. While O'Connor's opinion would theoretically have allowed a state to ban both heterosexual and homosexual sodomy, she carefully noted that such an "evenhanded" law might be unconstitutional if unequally enforced (as such laws always have been).

Aside from these particular cases, Justice O'Connor's general preference for state over federal power must also be seen as a boon to gay-rights causes. In a series of cases, O'Connor voted to limit federal power and to protect the historic role of the states in determining important matters of public policy. While she was hardly consistent about it, she was firmly in the camp favoring such federalism.

Federalism is now the principle means by which gay-rights causes are advancing in this country. According to the Center for Policy Alternatives (CPA), headed by former Human Rights Campaign Executive Director Tim McFeeley, the states are now leading the way in granting protections to gay individuals and families. A new report by the CPA documents more than two dozen pro-gay state laws adopted since 2003 alone. These include not only civil rights laws protecting gays from discrimination, but also laws recognizing and supporting gay families. These gains have been made even as prospects at the federal level have considerably darkened.

Justice O'Connor did not personally push for these advances in the state legislatures, of course. But her general approach has protected a balance of state and federal power that makes them possible.

First published January 19, 2005, in the Chicago Free Press.

In a vulgar and half-crazed speech delivered at New York's Cooper Union shortly after last November's presidential election, playwright and drama queen Larry Kramer pronounced the gay-rights movement "Dead." Dead. Deceased. Over. Finished.

But a funny thing happened on the way to the funeral: The state of Illinois passed a gay nondiscrimination law. It was as if the corpse suddenly sat up and started waving a cheery hello to the mourners.

On January 10, the Illinois Senate passed the bill by a vote of 30-27. It was the bare minimum necessary for passage, but winning with the minimum votes is a lot better than coming up one vote short of the minimum. In politics, as Eisenhower pointed out, there are no moral victories. You either win or lose.

The next day the Illinois House passed the bill by a vote of 65 to 51, well over the minimum votes necessary, and Governor Blagojevich, as promised, signed it expeditiously on January 21.

One might notice a few things in passing that offer lessons for other states less far along. The law represents the culmination of some 30 years of effort by successive teams of activists starting in 1974 when the Illinois Gay Rights Task Force (then so-named) was formed to work for passage of a nondiscrimination law. The bill's first sponsor was state Rep. Susan Catania, a Republican.

Passage was more or less hopeless during the '70s and '80s. The gay movement was young, desperately underfunded and understaffed. It received little support from a timid and politically passive community. And public opinion was far from taking seriously the idea of equality for gays.

Passage took years of painstaking lobbying in the legislature, public advocacy in the mass media, and a vastly increased number of gay people coming out. Over the years gays were significantly aided by conscientious reporters and supportive columnists in the print media such as Jean Latz Griffin and Eric Zorn at the Chicago Tribune, and Tom Brune, Howard Wolinsky and Neil Steinberg at the Sun-Times - and unnamed editorial writers at both papers.

But even more, passage required a well-funded and fully staffed political organization created by Equality Illinois, able to help legislators win primaries and elections, able to create political obligations, able to generate multiple thousands of letters, calls and e-mails to legislators. Politics, we are reminded, has little to do with what is right and everything to do with political power.

In the end, the law was passed in the first legislative session in which Democrats controlled both chambers of the legislature and the governorship. Although earlier GOP governors, moderates all, had said they would sign the bill, conservative legislative leaders kept the measure bottled up.

And the bill was approved after the November election, not before, so legislators felt less vulnerable. Three GOP senators and 12 GOP House members joined the majority of Democrats in voting for the bill. Without mentioning any names, it actually helped to have a crazed loony or two on the other side.

But someone might object that one swallow does not make a summer. Well, I hate to sound like Little Mary Sunshine. Gloom and doom always seem so much more profound. And alarm always sells well to people whose egos depend on the feeling that they are significant because they are threatened. But here, more briefly, are other signs of gay progress in January alone.

• The publication of the late C. A. Tripp's long-awaited book The Intimate World of Abraham Lincoln, arguing that Lincoln was predominantly homosexual in orientation, even if it does not convince everyone nevertheless decisively alters the landscape by raising the issue in a thoroughgoing way. Reviewing the book for the New York Times, conservative National Review senior editor Richard Brookhiser seemed to accept the general thrust of Tripp's argument. Consider the impact of the book on high school students doing reports on Lincoln or projects on the Civil War.
• Responding to the urging of New York City Comptroller William C. Thompson, Jr., who acted on the basis of stocks held by the city's pension funds, six more Fortune 500 companies indicated that they would include sexual orientation in their nondiscrimination codes - United States Steel, Alcoa, AllTel, Harrah's Entertainment, Owens-Illinois and Coventry Healthcare.
• Bishops of the Episcopal Church of America, responding to theologically untutored, fundamentalist Anglicans in third world countries, said they "deeply regret" not, mind you, having consecrated an openly gay bishop, but the fact that their doing so caused "pain" to some people. In other words, "We're sorry if you are upset." Clearly they felt they were in a strong theological and institutional position and, unlike feckless Anglicans in Britain, were unwilling to back down.
• A study panel of the Evangelical Lutheran Church of America, with an eye to the controversies embroiling Episcopalians, recommended that their church maintain its current policy forbidding same-sex union ceremonies and non-celibate gay clergy, but should "tolerate" (i.e., allow) churches and pastors that practice otherwise. In effect, this gives a green light to speeded up "doctrinal change from below."

This column honors the memory of Al Wardell, valued friend and long-time head of the Illinois Gay and Lesbian Rights Task Force.

The movement for gay equality in America has come in four basic stages. Each of these stages made a distinct contribution. Each was marked by its own missteps. Each provoked stiff resistance. Each suffered stinging defeats. But each ultimately advanced the cause and prepared the way for the next stage. With the recognition of same-sex marriages in Massachusetts - the first time a state has done so - we have entered the final stage of the gay rights movement.

Stage 1: Emergence

The first stage of the movement covered roughly the middle of the twentieth century up to the time of the Stonewall riot in New York in June, 1969. We might call this stage "Emergence," since it's when homosexuals began to emerge from the closet and to organize politically for the first time.

The atmosphere in the country during the Emergence period was harshly repressive. Homosexuality was considered not just sinful, but a mental disorder. All 50 states had sodomy laws directed and enforced primarily against gay sex. Raids on gay bars were common. Known homosexuals were forbidden in many states to obtain professional and business licenses. Same-sex marriage was unthinkable.

In the face of repression, a few extraordinarily courageous individuals declared that homosexuals were perfectly normal. They formed the first gay political and educational groups like the Mattachine Society and the Daughters of Bilitis. It was during this period that the American Law Institute recommended eliminating sodomy laws, and Illinois became the first state to do so, in 1961.

Stage 2: Liberation

Stonewall marked a new and more radical stage in the gay rights movement. We might call this stage "Liberation," since the gay movement appropriated the rhetoric and methods of other "liberation" movements for women and racial minorities. Liberation is also an appropriate moniker for this second stage because the movement emphasized separation from mainstream American society and institutions through unbridled sexual freedom and revolutionary critiques of existing customs and ways of living. For many activists of this period, fighting for marriage would have seemed like a surrender to heterosexual norms.

During the Liberation period, the American Psychiatric Association removed homosexuality from its official list of mental disorders, many more states eliminated their sodomy laws, gay publications and organizations mushroomed, the first openly gay officials were elected, and a few localities banned discrimination on the basis of sexual orientation.

Yet this second stage engendered a ferocious backlash, led by a newly self-conscious movement of social conservatives now known as the religious right. Anita Bryant infamously led successful drives to repeal gay rights ordinances in places like Miami and St. Paul.

Stage 3: Tolerance

The heady and optimistic second stage of the gay rights movement ended with the onset of the AIDS epidemic in the early 1980s. AIDS soon sapped almost the entire energy of the movement. Gay advocates shifted from emphasizing freedom and separation to emphasizing caring, responsibility, community, and commitment - the preconditions for the development of a marriage ethic. At the same time, the brutal process of dying from a disease identified almost entirely with gay men brought many homosexuals out of the closet for the first time. The protest group ACT-UP, whose antics were sometimes childish and counter-productive, transformed the American medical establishment to be more responsive to patients' needs for care and life-saving drugs.

While some Americans responded to AIDS by calling for quarantines, the predominant reaction was one of sympathy and support. We could call the third stage of the gay-rights movement "Tolerance," since Americans now opposed many forms of discrimination yet a majority remained convinced that homosexuality was morally wrong.

During the Tolerance period, many more civil rights laws were passed, corporate America led the way to the equal treatment of gay couples, and sodomy laws were finally vanquished. Gay couples began to demand benefits, leading to the creation of private and public domestic partnerships and, toward the end of the third stage, civil unions in Vermont. Still, there were reverses, including the codification of the military's gay ban and a federal ban on recognizing gay marriages.

Stage 4: Acceptance?

On May 17, 2004, the day Massachusetts began recognizing same-sex marriages, we entered what I expect will be the end stage of the gay rights movement.

As in each stage of the gay rights movement before this one, gay advocates will be guilty of excesses and will suffer serious setbacks. Beginning this November, we are going to be plastered in a series of anti-gay-marriage initiatives on state ballots around the country. Gay marriage will temporarily win a battle here and there in a few courts, but will overwhelmingly lose. For a time, legislatures will bottle-up or defeat gay marriage bills even in gay-friendly states, like California.

Gay marriage may even lose its toehold in Massachusetts come November 2006, when citizens there may vote on a state constitutional amendment. But I doubt it, and even if we lose in Massachusetts gay marriage will resurface somewhere before long. Having seen that gay marriage causes no harm and brings much joy, Americans will allow it, by fits and starts, to sweep the country.

By the time that happens, perhaps 30 years from now, the need for an organized gay rights movement in this country will be gone. There will still be bigotry and ignorance to fight, in America and around the world, but the heavy political and legal lifting will have been done.

History can't be written before it happens, and there is nothing inevitable about progress. But, if it turns out as I expect, this final phase should be called "Acceptance," since it will end in gays' full inclusion in the nation's legal and social life.

November 30, 1999

AFTER THE SEMI-SUCCESSFUL campaign in Britain to reduce the age of consent for homosexuals, British gays are debating what should be the next campaign. Many are advocating that the priority should be anti-discrimination laws. Such a policy ignores the essential distinction between equal rights with straights and special rights for gays. This article advocates the former, and opposes the latter. The term 'Gay Rights' blurs this significant distinction. To the extent that gay rights simply means that gays should be afforded the same rights as straights, it should be strongly supported, but when it implies rights that belong only to gays but not to all straights, it should be vigorously opposed. 'Equal Rights, not Special Rights' has unfortunately become a slogan of the Christian Right. However they do not mean it, as is demonstrated by their opposition to an equal age of consent. Gays, and all those committed to equality under the law, must restate and recapture this principled position.

Equal rights would mean:

• an equal age of consent for gays and straights
• the right of gays to serve in the military
• the legal recognition of same sex unions, preferably marriage
• the right of adoption by gay families
• the right of inheritance for a gay partner if the other dies intestate, without a will

A philosophy of equal rights would oppose:

• hate crime legislation, which creates an additional penalty if the crime was an expression of hatred against gays
• legal prohibitions on anti-gay speech, unless it is threatening, in which case it is covered by the existing laws that apply to all
• laws making discrimination against gays illegal for private persons in employment, housing and so-called public places

The three principles that underpin this approach will be presented, followed by the case against anti-discrimination laws. It should be emphasised that state discrimination against gays should be ended and gays should be entitled to the same rights in law as straights, the principle of Civil Equality, while private discrimination should be condemned but not outlawed.

Three Principles

1. 'Gay rights' are neither human rights nor civil rights.

A Right is a moral entitlement. A Human Right means that it belongs to all human beings, regardless of nationality, gender, race, religion, or sexual orientation. Human Rights must meet three criteria: 1) they must be universal, applying to every human being , wherever and whenever they lived, 2) they are absolute, except when they come into conflict with each other, 3) they are inalienable, and so cannot be surrendered, e.g. no-one can sell themselves into slavery. These human rights were expressed by John Locke as 'life, liberty and property', in the French Declaration on the Rights of Man as 'liberty, property and security', and in the American Declaration of Independence as 'life, liberty and the pursuit of happiness'.

Civil Rights, or Civil Liberties, seek to embody these human rights into law, turning them into positive rights that can be claimed. Every person has an equal right to be free from interference by the state and others, in aspects such as freedom of speech, freedom of contract and freedom of association.

If Gay Rights are rights that only belong to gay people by virtue of being gay, ie they belong only to members of a particular group rather than to all individual human beings, they cannot be human rights because they do not meet the necessary criteria, notably the universality principle. Thomas Sowell has discussed how the black civil rights movement shifted from demanding equal rights to special rights in his book Civil Rights.

2. It is not the role of the law to impose morality.

This has been one of the biggest debates in political philosophy, between liberals and moral majoritarians. John Stuart Mill in On Liberty articulated the principle that people should be allowed to do as they pleased unless they do harm to others: the harm principle. This principle has been used extensively to promote equal rights for gays, e.g. in the Wolfenden Report. As the time Mill was strongly opposed by James Fitzjames Stephens. A more recent debate was between Lord Patrick Devlin, who thought that the law should express condemnation of that deplored by the majority of people, against Oxford philosopher H.L.A. Hart, who took a more liberal position. In such debates, gays have sided with the liberal view that it is not the role of the state to impose a particular conception of the good, even one endorsed by the majority. The law exists to enable people to go about their business, as long as they do not interfere with the rights of others. Ronald Dworkin expressed this principle of liberal neutrality as: No person is entitled to elevate his/her beliefs about how others should act above those of anyone else. It is very important to emphasise that for the state to allow an action is not to favour it.

3. Maximise the private.

The distinction between private and state (usually expressed as 'public') is extremely important in a free society. Unfortunately the definition of the private has become narrowed to include only the person's home, and sometimes not even that. The distinction between private and public should be ownership, not who goes there. 'Public' should mean government owned, not open to the public, as in a bar or club. Private property means that government has no right to interfere with that property unless someone's rights are being denied. A wide definition of private and a narrow definition of public (state) is the best protection for gays. The alternative is that government can legislate and interfere in areas open to the public e.g. at the Stonewall Inn, or sexual activity in cinema clubs, or sado-masochistic sex on private property (Operation Spanner). Those who control the power of the state will use it for their own purposes and preferences.

Anti-Discrimination Laws

Anti-discrimination laws would outlaw discrimination on grounds of sexual orientation in employment, housing and 'public' areas. This was proposed in the US federal Employment Non-Discrimination Act (ENDA), and exists in many US states and local jurisdictions. The Labour party conference in 1983 endorsed the idea, and many gay activists want this proposal to be at the forefront of gay campaigns.

Such laws should be opposed on the grounds that they would threaten civil liberties, society in general, and gays.

1. The Threat To Civil Liberties

Firstly, they attack freedom of association, the freedom to associate, and not to associate, with whomever we choose for whatever reason, good, bad or none. These reasons can be criticised but if some motives are made illegal, then one is no longer free. Anti-discrimination laws would force a Catholic to rent his property to someone whose activities he views as abhorrent. A fundamentalist school would have to hire homosexuals against their deepest beliefs (the cause that brought Anita Bryant into anti-gay crusades). A gay bar owner could not employ only gay barmen and women. Gay clubs could not exclude straights. Do not believe that these laws would only apply against straights. In Provincetown, Massachussetts, a male gay bar was refused a renewal of its alcohol licence because it excluded women and straight men, as was a lesbian bar in New York for its policy. In San Francisco a gay landlord was prosecuted for prefering gay men to women as tenants. The principle of freedom of association does not defend anti-gay discrimination, but recognises that bigots have rights too.

Secondly, they undermine freedom of expression. Anti-gay discrimination will occur, but employers and workers will not be allowed to express their true motives and will find other excuses to act. Employers would become legally responsible for the speech of their own employees, as in the case of the Irish worker compensated for the anti-Irish jibes of his fellow workers. Of course employers should seek to create an environment in which all workers feel able to carry out their works in a relaxed and comfortable environment, but it should not be the job of the employer to seek to regulate the speech of his or her workers unless it affects the business.

Thirdly, they are an attack on private property rights. One should set own one's rules on one's own property. In the famous US Supreme Court case, Hardwick versus Bowers, Hardwick was found guilty of anti-sodomy laws in his own home. Local anti-gays tried to prevent a lesbian retreat in Mississippi. Freedom of association and respect for privacy can only be protected by property rights, which allow individuals to carry out acts between consenting adults free from invasion. The recognition of private property rights is one of the great safeguards for gays, which they threaten at their peril.

Fourthly, they deny the free exercise of religion. A church which believes that homosexuality is a sin should not be forced to employ someone who does not accept a basic principle of the church. Church members and others of course could (and should) advocate that the church should change its position on homosexuality. However the church should be allowed to exercise its religious principles, as long as it does not seek to translate them into law simply because they are its principles. Laws would bring the state into the doctrinal affairs of the different churches and cause intense resentment amongst them.

2. The Threat to Society

Firstly, it will damage the economy. Unemployment is the biggest economic problem facing not only Britain but every western society. Most economists agree that a major factor in unemployment is what they call rigidities in the labour market. These are things which discourage employers offering work and workers accepting it. Anything which raises the cost of employment reduces the number of employment opportunities. One example is the minimum wage which will discourage employers from taking on inexperienced workers whose job productivity is difficult to predict. Another discouragement is employment legislation which makes it more difficult to sack a worker. If it is difficult to remove workers, then employers will be more cautious in taking on new workers. The fear of litigation if a gay claims to have been sacked on grounds of sexuality will discourage employers from offering employment.

This is not to advocate or defend discrimination. Discrimination has a price in the labour market because the employer is not employing the best, and will lose out to his competitors. This argument is developed in detail by the Chicago economist Gary Becker in The Economics of Discrimination.

Secondly, it undermines the political system. Such laws will contribute to what Arthur Schlesinger describes as the Balkanisation of politics. Government becomes a battleground between special interests seeking to use the power of the state to further their own interests. In the process, the public interest is ignored. Every group seeks to get its nose in the public trough, regardless of the cost to the rest of society. Special interest legislation divides society by emphasising differences in interests rather than common interests. This argument is developed more fully by public choice writers such as the Nobel Prize winner James Buchanan, and Mancur Olson in The Rise and Decline of Nations.

Thirdly, they will make the UK a more litigitious society. There is now considerable concern in the US with the massive costs in litigation, which raises the cost of products,services and employment considerably. (See Walter Olson, The Litigation Explosion.) There is now a strong movement for tort reform to reduce the problem. Anti-discrimination laws create yet another basis for additional litigation. Already considerable sums have ben awarded in the UK to those who claim some sort of discrimination, but little attention is given to who pays and the broader costs to society.

Fourthly, such laws will lead inevitably to quotas, government mandated preferences for government favoured groups. Despite claims to the contrary, and sometimes explicit references in legislation banning quotas, they are an almost inevitable consequence of such legislation .Why? These laws penalise motive, but motives are difficult to establish. If the motive is illegal , discriminators will not admit it. Those seeking to implement the laws move from a concern with 'disparate treatment,' i.e. with intent, to 'disparate impact' I.e. with effects. The question then becomes how many blacks or women or gays are employed.

To avoid costly litigation, compensation, and bad publicity, employers impose quotas. Even without legislation, the Bar Council is demanding 5% ethnic representation in barristers' chambers. This destroys equal treatment because prospective employees are not treated equally on the grounds of merit but because of certain characteristics. It is this which has created resentment and backlash against affirmative action. It may not be the intent of the law to create quotas but it is an unintended consequence.

3. The Threat to Gays

Firstly, they will perversely reduce employment and housing prospects for gays. If you are an employer making an appointment, you are aware that you may have to sack the worker in the future, because he or she is unsatisfactory, or because business requires it. The employer may be reluctant to employ someone gay, or who appears to be gay, because the employer faces the prospect that the employee would claim that he or she was dismissed because of his/her sexuality. Better to avoid the risk and not employ the person in the first place. Similarly, one of the biggest fears of any one renting out property is how difficult it may be to remove the tenants if they fail to pay the rent or damage the property.

Anti-discrimination law adds another potential obstacle to removing them. This creates an incentive to the owner to favour renting to a straight rather than a gay, providing he/she can find another reason to favour the straight. It would be yet another example of the perverse effects of laws leading to the opposite to that which was intended.

Secondly, they will contribute to a backlash against gays. In 1992 there were two referendums on gays in the states of Oregon and Colorado. The former was defeated, while the latter passed. The difference was that the Oregon proposition sought to condemn homosexuality in the state constitution, while the Colorado one sought to ban local authorities from passing anti-discrimination laws for gays. The moral majoritarian slogan against special rights for gays resonated with ordinary straights because there was an element of truth in it, whatever the motivation of its promoters. Appeals to equal rights will appeal much more to straights that appeals to special rights, and anti-gays will be quick to blur the distinction.

Thirdly, they reduce the self-esteem of gays by creating a victim mentality: that gays have no power but are dependent on the state to protect them. There is now a debate between victim and power feminism, between those who portray women as victims who need the protection against men, and these who emphasise the power and potential power of women. The power approach would be best for gays. The psychology of the victim leads to resentment not betterment. As Andrew Sullivan of the New Republic noted, "By legislating homosexuals as victims, it sets up a psychological dynamic that too often only perpetuates cycles of inadequacy and self-doubt". Gays are then led to assume that they cannot succeed without special protection, and straights will assume gays are successful because of preference not merit. The difference between power and victim approaches is reflected in the debate on the existence of the Pink Pound. On the one side are those who emphasise the existence of substantial economic resources in the hands of gays, and view gays as success stories. On the other, the victim gays seek to deny the power of the pink pound and prefer to present gays as poor and downtrodden.

Fourthly, anti-discrimination laws rely on the power of government, yet government has been the chief oppressor of gays. Gays will always be a permanent minority. It is very dangerous to rely on laws passed by the majority to protect them. These laws would legitimise interference in private matters. These are more likely to be used against gays in the longer term . The state should be seen as a threat to gays, not an ally.

Conclusion

Discrimination against people simply because of their sexual orientation exists and is wrong, but it is not the role of the law to correct every wrong. Law is not, and has not been, the solution to sex and racial discrimination and will not be for sexual orientation.

There is no easy or permanent solution to anti-gay discrimination. Gays can however seek:

• equality before law
• maximum freedom of association
• social disapproval of discrimination.

Gays must have equal rights to straights. They are entitled to nothing less� but also nothing more.

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Suggested Reading

• Bruce Bawer, A Place at the Table: The Gay Individual in American Society, Simon & Schuster, 1994.
• Gary Becker, The Economics of Discrimination, University of Chicago Press, 1974.
• Richard Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws, Harvard University Press, 1992.
• Sean Gabb, What To Do About Aids, Libertarian Alliance Pamphlet No.12, 1989.
• Brian Mickelthwait, Gay and Lesbian Rights: Property is Better than Politics, Libertarian Alliance, Political Notes No. 69, 1992.
• Mancur Olson, The Rise and Decline of Nations, Yale University Press, 1982.
• Walter Olson, The Litigation Explosion, Plume, 1992.
• Richard Posner, Sex and Reason, Harvard University Press, 1992, chapter 11.
• Jonathan Rauch, Kindly Inquisitors, Chicago University Press, 1993, chapters 5,6.
• Thomas Sowell, Civil Rights: Rhetoric or Reality, Morrow, 1984.
• Andrew Sullivan, The Politics of Homosexuality, New Republic May 10, 1993.
• Gay Rights or Human Rights? Economist February 6, 1993, pp.15-16

"Oh God, our maker, we gladly proclaim to the world that Jeanne and Ellie are loving partners together for life. Amen."

By saying those words to bless the relationship of two women, Reverend Don Fado and 94 other United Methodist pastors (as well as 71 other clergy members who lent their names in absentia) could lose their clerical jobs. Fado acknowledged this at the holy union ceremony they all jointly presided over on January 16. "If anybody wants to file charges against us, this is what the charges are for; for praying this prayer."

The ministers did not marry Jeanne Barnett, 68 and her partner of 15 years, Ellie Charlton, 63. They simply proclaimed, as a body, that Jeanne and Ellie have committed themselves to one another for life. More important, it seems, they "gladly" did so. If they had scornfully done so, or had done so filled with bitterness, hostility, grievance or alarm, well, that might have been all right.

There are many issues at work in this ceremony: questions about morality and love, religion and politics, equality and "special rights." But one fact may say more about this event than any other?it took place in Sacramento.

Historically in this country, the movement for gay rights has come from big cities like Los Angeles and New York -- and, of course, San Francisco, not a big city in numbers, but the cosmopolitan equal of any city in the world. The concentration of gay men living in such cities helped drive the movement for gay equality. There was a certain spirit, if not necessarily safety, in numbers. This fact, however, often put cities at odds with more rural areas, as gay rights laws were introduced in state capitals.

But now the questions about justice and fairness first raised in the cities are coming up everywhere. Lesbians and gay men in Bakersfield and Victorville may have had more to risk by coming out than their counterparts in West Hollywood and the Castro, but the compromises of the closet are tedious no matter where you live. It's something like a full-time job to keep track of all the fabrications and half-truths, and that's wearying, whether you work on a stock exchange or a dairy farm.

So it should be less surprising than some might expect to know that the holy union ceremony did not come from the organized gay rights establishment in San Francisco or Los Angeles. In fact, it did not originate with anyone who is actually homosexual. In St. Mark's church in Sacramento, Rev. Fado heard his church leadership's command that no Methodist minister could bless a same-sex relationship. The patent unfairness was too obvious for him to ignore. How could he have permission to bless a house, a car, a pet, but not the relationships of some of his own parishioners, children of God who had made a lifetime commitment based in love and faith?

It was only when Rev. Fado asked his congregation if any same-sex couple would step forward that Jeanne and Ellie came into the public eye. Neither woman views herself as a gay rights activist. When asked the question, both laughed timidly. The best they could say, Ellie confessed, was that they identify themselves as "quiet advocates for change."

It is those quiet advocates who demonstrate how profoundly the successes of the gay rights movement have changed the movement. Anti-gay leaders like Gary Bauer and James Dobson may rail against homosexual "extremists" and "radicals," but they have little to say about homosexual moderates and conservatives. People like Jeanne and Ellie wanted only to live their lives decently and honestly, and endured furious and unwanted publicity to demonstrate how hard it is for a same-sex couple to achieve the modest respectability every married heterosexual couple takes for granted.

They are not alone. Across the nation, millions of same-sex couples, every day, quietly negotiate the preposterous half-rules and unspoken protocols they are expected to live by. And they are joined by millions of heterosexuals like Rev. Fado, who are finding it harder and harder to maintain a separate set of rules for lesbians and gay men.

That is why the scene for these new gay rights battles will increasingly be places like Sacramento, or Laramie, Wyoming, or Hawaii or Vermont. A decade ago, author Neil Miller published In Search of Gay America, and found people across the country willing to talk about being gay in every corner of the country, and in every walk of life. Those people are still there, and by the simple example of their lives, their friends and co-workers, relatives and ministers may be more ready than ever to support them.

In other words, the gay rights movement isn't just for activists any more. No one was ever excluded from the movement, but in the early days a lot of people passed. Political activism isn't in everyone's blood.

But justice is. That's what drove Rev. Fado to issue his challenge, and it's what drove Jeanne and Ellie to accept. But it's also what made buses and carloads of people come from Modesto and Fresno, Yreka and Oregon to show their support. The hundreds of people who surrounded the Convention Center in a "Circle of Love," as well as the thousand or so who attended the ceremony, probably couldn't name a gay radical. But by just being present in Sacramento, their quiet advocacy was moving the mountains radicals have been talking about for decades.