IGF CultureWatch

The analysis of Supreme Court confirmation hearings has become the post-Cold War equivalent of Kremlinology, the study of Soviet behavior relying on exquisitely subtle clues to draw grand conclusions about the future. Is that Chernenko standing next to Brezhnev at the May Day parade? Is Andropov wearing a fedora?

So in the confirmation hearings of Judge Sam Alito, commentators carefully parsed the phrase "unitary executive" that he used in a single speech five years ago. They alighted when Alito described the "one-person/one-vote" principle as "settled law" but described Roe v. Wade as a "precedent entitled to respect." Did this signal he would vote to overrule Roe?

Did Gorbachev wink when that SS-25 ICBM passed by? Or was it just something in his eye?

All this speculation arises because nominees have learned that the way to get on the Supreme Court is to say nothing and to say it in as moderate and monotone a manner as possible.

Over more than two days of testimony before the Senate Judiciary Committee, Alito said almost nothing. When asked about this or that precedent, his stock response was to describe the holding of the Court, say it was entitled to respect, and then say he could say no more because the issue might come before him.

This convention of obscurantism in the Supreme Court nomination process puzzles me. I don't see why a nominee can't express a general view about a precedent or doctrine (without promising how to vote) when it's perfectly acceptable for a sitting justice to announce in one opinion that he supports (or opposes) a precedent and then to decide future cases related to the same precedent.

Notwithstanding the deliberate opacity of the confirmation process, is there anything about Alito that should give gay Americans concern?

The national gay groups all oppose Alito, and did so even before his confirmation hearings. But they have pretty much taken themselves out of any serious debate about President Bush's judicial nominees. Their position is basically this: "We have a specific pro-gay agenda, which we understand to include the right to abortion without restrictions. We want to advance this agenda, to the extent possible, through the courts. We oppose any nominee for whom there is no affirmative evidence that he fully supports our agenda and is willing to advance it judicially."

Since no Republican judicial nominee is going to meet this test, national gay groups might as well announce that they will oppose any and all judicial nominees for the remainder of the Bush presidency and be done with the matter. Their opposition will be ineffectual, as it has been on all of Bush's nominees. But at least we could dispense with the charade that they actually care about, and have "analyzed," an individual nominee's record.

The best that the Lambda Legal Defense and Education Fund could do to muster a case against Alito was to point out that he is a conservative, that he thinks there were excesses of judicial activism in the 1960s on matters like criminal defendants' rights, that he opposed Roe in 1985, that he has a "strong allegiance to 'free enterprise' " (quel horreur!), that he interprets certain employment-discrimination laws more narrowly than Lambda would, and that he would not always remove the displays of menorahs and creches from public land.

Where was the gay-rights issue in that litany?

I see nothing either very promising or very threatening in Alito's record when it comes to gay issues. That's not to say he couldn't turn out to be an imitation of Justice Antonin Scalia on gay rights. That would be terrible: Scalia has been actively hostile and even disparaging on the subject. But Alito could also turn out to be surprisingly receptive to certain gay-rights claims, as Reagan-appointee Justice Anthony Kennedy has been.

At his hearing, Alito announced that he supports the constitutional right to privacy that is the underpinning for the Supreme Court's decision in Lawrence v. Texas striking down anti-gay sodomy laws. He further suggested that he believes this right extends to unmarried people. He was not asked to comment beyond that.

While he supports federalism and "limited government"-more right-wing ideas Lambda finds troubling-Alito told the Senate that he could not think of any reason why Congress could not pass a law protecting gays from employment discrimination.

There's more. Alito appears to be very strong on free speech, which has been critical to the gay-rights cause. As a federal appellate judge, he supported the transfer of a gay student to another school to escape harassment. After the hearing, even NGLTF observed that Alito "registered immediate, palpable and sincere horror and disgust" at the anti-gay statements attributed to an alumni group of which he had once been a member.

Alito is not going to bring us gay marriage, but neither is anybody else on this Court. He will probably not vote to strike down the military's exclusion of homosexuals-also probably a strong majority view on the current Court. He will defer to Congress and to the states, to a very large extent, on what public policy toward gays ought to be.

That is, reading between the lines of his testimony and making predictions about his future conduct as compared to what his predecessor's might have been on specifically gay issues likely to come before the Court, Alito's appointment probably leaves us about where we were before.

First published in the Chicago Free Press., January 18, 2006

One of the most widely noted political phenomena of the last decade is the polarization of political opinion-usually along liberal versus conservative lines-so that there seems to be decreasing room for moderation, compromise or "just getting along."

Everyone listens to people on their own side, tunes into media and accesses weblogs that they agree with, and the notion that the other side might have a good point fades from the political universe. Fading even more is the possibility that the other side might not only have a good point but might actually be right about some issue.

Vanishing almost entirely from the polarized mentality is the possibility that both sides are utterly wrong and there could be some third position that is closer to the truth. Yet it seems unlikely that there could be just two plausible positions on any given issue.

I find this political polarization personally troubling because I have come to conservative positions on some issues and liberal positions on others. And I have concluded that there are yet other issues where neither side is right. In each case, I believe I can offer fairly good reasons for what I think.

Let me give some examples, not to argue for them here but to demonstrate what I mean. I know there are plausible-sounding arguments against all of these, but in each case I believe I have good counter-arguments.

First, nine "liberal" conclusions:

1. I am for legalizing gay civil marriage (or civil unions).
2. I support allowing gays to serve openly in the military.
3. I support legalized assisted suicide: It's my own life.
4. I think recreational drug use should be decriminalized: What I put in my body is my business.
5. I oppose government subsidies to farmers and corporations: Let them earn their money the way the rest of us do.
6. Commercial sex (prostitution) should be decriminalized: It's my body.
7. I oppose the death penalty.
8. Abortion at any time should be legal: A fetus is not a person.
9. Pornography should be legal to make and sell.

Now here are eight "conservative" conclusions:

1. I oppose government seizure of people's private property through eminent domain.
2. I support tax cuts for anyone anytime-rich, poor or middle-class.
3. I oppose government subsidies to arts organization: They should earn their money by pleasing customers.
4. I support school choice and home schooling.
5. I support absolute free trade: Tariffs and quotas are subsidies for inefficient businesses.
6. I oppose zoning restrictions by officious "city planners."
7. I support more welfare cuts: The last ones had salutary effects.
8. People should have the right to own guns to protect themselves: The police cannot be everywhere.

To all appearances these two sets of views belong on opposite sides of the political spectrum. So I have trouble describing my political position for people. I suppose I could call myself "a small government liberal." Or maybe "an ACLU conservative." But these terms would not mean much to people with deep commitments on one side or the other. They would just look at me strangely, as if I described some object as a round square.

Usually, people end up thinking I am whatever they are not. Conservatives think of me as liberal and liberals think of me as conservative. Both sides insist on 85 to 90 percent conformity with their views to qualify as "one of us." Apparently that is one way that political ideologues inhibit "deviationism"-otherwise known as thinking for yourself. You are supposed to buy the whole package.

Interestingly enough-interesting to me, anyway-I have come to some liberal positions on the basis of "conservative" arguments. For instance, I oppose the death penalty not because it is inhumane but because I do not trust governments to impose an irreversible sentence: Courts can make mistakes.

Similarly, I have come to some conservative positions for "liberal" reasons. For instance, I think Supreme Court justices should interpret the Constitution strictly because I think a strict reading must include deference to the Ninth Amendment, which recognizes a number of previously ignored "liberty rights" for individuals.

For that matter, I support privatization of Social Security so gays and other singles can pass on their investment to their partners when they die rather than having the government keep their money. Is that liberal because it benefits gays or conservative because it eliminates a government program?

Is there some coherent view that unites most if not all of these diverse positions? I think so and I think I can explain roughly what it is. But the point I hope to make is that whether or not they represent a coherent outlook, they are meant to show that a person might find good reasons to diverge from the liberal or conservative party line on several issues, if not these then others.

Back in the 1960s when the world was young there was a button that read, "Question Authority." I used to have one. It may still be around somewhere. Maybe I should start wearing it again.

A fall 2005 survey by Harris Interactive and Witeck-Combs Communications comparing gay and heterosexual adults found that gay men and lesbians were by several percentage points more likely than heterosexuals to respond to advertising messages, and that this was particularly true of offers that were keyed to their needs and respectful of their identities.

According to Witeck-Combs CEO and cofounder Bob Witeck, those results are good news for the advertising managers who have promoted more than 800 brands to the gay market and invested a quarter billion advertising dollars to reach same-sex households.

It is easy to see how ads directly aimed at gays by containing gay elements or same-sex couples would elicit a positive response from gay readers or viewers. But we could wonder why gays and lesbians might pay a little more attention to advertising generally. It is possible to imagine several plausible reasons.

• Since fewer gays have children, they are likely to a have greater disposable income to spend on consumer products and personal services, so they naturally pay more attention to advertising that tells them what kinds of things are out there that they might use their money for.
• A special case of this is gays' tendency to be "early adopters"-their eagerness to adopt a new fashion style or have the most innovative consumer product-computer, sound system, electronic gadget, messaging system, whatever. To do that successfully they need to be alert for advertisements for new products.
• Having fewer children also means that gays are better able to "pick up and go." Previous research found that gays go on more frequent trips or vacations and go out more to restaurants, concerts, movies and clubs. So they naturally look for advertising that tells them what is available.
• Married heterosexual couples still tend to divide the work of maintaining the household, so each partner is likely to pay attention mainly to advertising about the aspects they handle. Same-sex couples do not divide household responsibilities so clearly, so both partners may notice, say, ads for better microwaves as well as new cars, new DVD players as well as new lighting fixtures.
• Finally, I sometimes wonder if growing up as gay with a greater need for a self-protective awareness of other people's responses does not create-at least in some gays-a more or less constant state of alertness to the details and nuances of what is going on around them.

As all those examples underline, the whole purpose of advertising is to provide information that you the potential consumer did not know and would not otherwise have. It may not be information you want or need at the moment, but you might eventually and somebody else might find it useful right now.

Examples: A fascinating new product is now available. A familiar product has been upgraded and restyled. We can provide this time-saving service for you. A fine store is conveniently located near you. Some store is having a special "50 percent off" sale. This product will entertain you better. That nifty product will impress your friends. This club is having special entertainment. This movie is opening at that theater. Et cetera.

How are you going to find out these things if not through advertising-or from a friend who saw the advertising? We tend to forget how much of what we know about the world of products and services we learned directly or indirectly from advertising. Commercial products and services do not become known by magic.

A quick survey found gay friends who said that because they saw an ad they:

• Opened an account at a particular bank.
• Discovered a store that sold a brand of shoes they wanted.
• Bought a Bose Wave Radio.
• Changed brands of toothpaste to one they liked better.
• Found dress shirts on sale.
• Tried dental whitening strips.
• Bought an original iMac the minute it came out.
• Hired an attorney who advertised in a gay newspaper.
• Tried a new remedy for cold sores.
• Went to a concert a friend saw advertised.
• Hired an "model/escort" for a pleasant evening.
• Bought a book that looked interesting.

The list could go on.

Some people say they do not like advertising. They are usually thinking of loud or repetitious radio or television commercials. But there are well-designed advertisements in newspapers and magazines as well as clever and entertaining ads on radio or television. The New Yorker contains a great deal of exemplary, stylish advertising, especially around Christmastime.

And such people are forgetting how much information they themselves obtain from advertising. They remind me of Richard Wilbur's little poem "Solipsism":

We milk the cow of the world, and as we do
We whisper in her ear, "You are not true. "

Advertising can even create aesthetic benefits. Some artists in the early 20th century noticed how advertising's color and variety enriched the city's visual environment. French artist Fernand Leger who loved bright colors wrote enthusiastically of "life-giving color ... including all forms of everyday advertising."

Stanley Kurtz is at it again. In the cover story for the December 26th Weekly Standard-"Here Come the Brides: Plural Marriage is Waiting in the Wings"-Kurtz cites a recent Dutch "triple wedding" as further evidence for the slippery slope from gay marriage to polygamy. (The Netherlands legalized same-sex marriage in 2001.) In Kurtz's ominous words:

It's easy to imagine that, in a world where gay marriage was common and fully accepted, a serious campaign to legalize polyamorous unions would succeed…. For a second time, the fuzziness and imperfection found in every real-world social institution will be contorted into a rationale for reforming marriage out of existence.

I have argued here before that there is no essential connection between same-sex marriage and polygamy. But it's worth pointing out several confusions in Kurtz's current iteration of the slippery-slope argument.

Confusion #1: The "Dutch triple wedding" was not a marriage at all. It was a private cohabitation contract signed by a Dutch notary public. It is not registered with, or sanctioned by, the state. It is no more a legal plural marriage than, say, a lease signed by three roommates.

Of course, lease-signings are not usually followed by cake and champagne. But if the fact that this Dutch trio had a private ceremony means that they actually have a plural marriage, then plural marriages are already taking place-not just in the Netherlands but in the U.S. Any group of people can put on any ceremony they like. That doesn't make it marriage.

Confusion #2: Kurtz obscures an important distinction between two understandings of the slippery-slope argument. One can understand the argument as a causal prediction: if gay marriage happens, plural marriage will follow. That doesn't mean that it should follow, or that there's any logical connection between the two.

Alternatively, one can understand the argument as a statement of principle: regardless of whether gay marriage leads to plural marriage in the actual world, there is a logical connection between the rationale for one and the rationale for the other, one might argue.

Kurtz, like many same-sex marriage opponents, seems to switch back and forth between these two versions of the argument. The distinction is subtle but important. By itself, the causal-prediction version is weak, for two reasons:

1. Because there may be a good principled case for gay marriage despite some adverse consequences. Same-sex marriage might lead to any number of things, some good, some bad. It might lead to higher revenues for the catering industry. It might lead to increased gay-bashings. Neither of these causal predictions affects the validity of the case for same-sex marriage, which ought to be evaluated on its own merits.

This is not to say that consequences are irrelevant in determining public policy-far from it. But that point leads us to the second weakness of the causal-prediction form of the slippery-slope argument:

2. The prediction seems unlikely. Plural marriage won't ever have widespread appeal in this country, as long as sexism and religious extremism are kept in check.

Polygamy typically flourishes only in societies with rigid gender-hierarchies. In egalitarian societies, most people find it challenging enough to maintain a long-term relationship with a single partner. (Indeed, insofar as gay marriage undermines gender hierarchies, same-sex marriage may make plural marriage less likely.) It's also worth noting that many prominent same-sex marriage opponents-including Maggie Gallagher and Hadley Arkes-find the causal-prediction version of the slippery-slope argument unconvincing.

So that brings us to the other version, which asserts a logical connection between same-sex marriage and group marriage. Allow gays to marry, the argument goes, and there's no principled reason for forbidding polygamy.

Why would anyone think this? After all, polygamy can be heterosexual (for example, with a husband having one-to-one relationships with several wives), homosexual, or bisexual. What does one thing have to do with the other?

The answer reveals the third confusion in Kurtz's current argument:

Confusion #3: The myth that gay marriage rests on the claim that people should be allowed to marry "anyone they love." Although careless gay activists occasionally make this claim, it is foolish and easily refutable. Consider the absurd entailments: if I love my sister, I should be allowed to marry my sister. If I love my Ronco Electric Food Dehydrator, I should be allowed to marry my Ronco Electric Food Dehydrator. (Do you know how much beef jerky costs in the store?)

No, the case for gay marriage is not (or not merely) about whom people love. It's about whether these marriages are good for individuals and society. Increasingly, the evidence suggests that they are.

Whether plural marriages are good for society is quite a different question. Switching the focus to that question may be a good debate tactic, but it's hardly an argument against gay marriage, much less a new one.