IGF CultureWatch

Not surprisingly, what the press and public most noticed about state superior court Judge Richard Kramer's opinion ordering same-sex marriage in California was - well, that it ordered same-sex marriage in California. (The decision is now on appeal.) Lost in the furor, however, was the dog that did not bark: a less controversial approach that the judge passed over and failed even to explore.

There are at least two enormously significant omissions from the opinion. While the court's reliance on Perez [a 1948 California Supreme Court decision overturning the state's ban on interracial marriage] is core to the opinion's reasoning, there is virtually no mention of the California Supreme Court's other landmark opinion relevant to this case, Gay Law Students v. Pacific Telephone and Telegraph.

In that decision, over a quarter of a century ago the state's highest court ruled for the first time that gays are specifically entitled to equal protection under Article 1, section 7(a) of the state constitution. In a case about the rights of lesbians and gay men, the lack of a citation to this longstanding key authority is remarkable, and may indicate a continuing fear, even among those like Judge Kramer who are willing to engage the issues faced by lesbians and gay men, of addressing their concerns directly, rather than through analogous law that is more settled on a high level of scrutiny, but less explicit about gay equality.

In addition, the court fails to mention the fact that there are two distinct equal protection clauses in California's constitution. Article I, section 7(a) provides that "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. . ." The second is an independent and more specific provision, found in subdivision (b): "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens."

Recognizing this distinction provides yet another way this case could have been decided - and goes to the heart of the political arguments that same-sex marriage cases now inflame. There are, in short, two ways courts have been dealing with the problem of discriminatory marriage laws - the Massachusetts model and the Vermont model - and California's equal protection clause would permit a court to take either path.

The Massachusetts model is the most politically volatile. Courts examine exclusionary marriage statutes and, doing their constitutional duty, acknowledge the rights of same-sex couples. In doing this, they exercise their longstanding and fundamental authority to counter the majoritarian prejudice against minorities by invalidating the laws that advantage the majority at the expense of the minority. This is well within the core reasons courts in this country are independent of the political branches - even if, as in California, judges are subject to regular retention elections.

However, as is well known, the bias against homosexuality is still virulent and explosive. More important, it can lead to the constitutional backlashes that now characterize this debate in many states, as well as in the current Congress. Same-sex marriage decisions spark deep and abiding anger in many people, who lash out at "activist judges" who are claimed to be "making law, not interpreting it."

The Vermont model offers a way to temper this. Baker v. State focused on the Vermont constitution's common benefits clause which, like Article 1, section 7(b) of California's constitution assures that some groups of citizens will not be given special benefits. The court in Baker ruled clearly that lesbians and gay men are entitled to equality under this constitutional provision. But rather than invalidating the law in the first instance, the court left it up to the legislature to decide how best to fulfill the promise of equal benefits. The Vermont legislature then did what legislatures do - compromised a bit by retaining opposite sex-marriage, but creating civil unions for same-sex couples.

The Massachusetts Supreme Judicial Court rejected just such a compromise in its second Opinions of the Justices, ruling that marriage and only marriage would truly be equal. That is, of course, true. But it also has very high political risks. The most obvious downside was illustrated in Hawaii, which was the first state whose high court ruled that same-sex couples were entitled to equal marriage rights. In 1993, the high court ruled that the state's marriage law violated the rights of same-sex couples. The case set off a furious debate over same-sex marriage across the country and resulted in the passage of the Defense of Marriage Act by the U.S. Congress, which allows states to refuse to recognize same-sex marriages contracted in other states.

The decision also created a backlash in Hawaii itself, where voters amended their state constitution to guarantee that same-sex couples were not, in fact, entitled to equal marriage rights. While the state subsequently passed a domestic-partnership-like law for same-sex couples, it remains the first state that amended its constitution to guarantee inequality for homosexuals.

At the very least, the failure to even examine this second section of California's equal protection clause exposes some of the dangers of the take-it-or-leave-it school of judicial decision-making in such highly combustible political contexts. While Judge Kramer's opinion is neither wrong nor unjust, it is perhaps incomplete. It is entirely possible that he would have chosen the Massachusetts model, even after having considered and rejected the Vermont option.

Judge Kramer's opinion several times includes language that a "superstructure of marriage-like benefits for same-sex couples is not remedy," and, "the State's position that California has granted marriage-like rights to same-sex couples points to the conclusion that there is no rational state interest in denying them the rites of marriage as well." Still, a decision coming to that conclusion, which does not address at all another, quite obvious constitutional option, is certainly open to the question of why the other differing constitutional provisions were not separately examined.

I've been trying hard to justify writing about the Terri Schiavo saga for a gay publication. Gay groups, very sensibly, did not take a stand on the specific question whether the woman's feeding tube should have been removed. It wasn't a "gay" issue, although individual gay persons face similar grave circumstances. The Schiavo case is, however, part of the larger agenda of the religious-conservative groups that moved political and legal mountains to have their way. That agenda is gathering momentum under the banner of promoting a "culture of life," an idea whose central precepts, as articulated by religious conservatives, strongly oppose gay equality.

There are two easy questions raised by the Schiavo mess. First, should Congress have intervened by passing a law giving federal courts power to review this case alone? Absolutely not. Laws are not tickets "good for this ride only." A law is respectable as law when it deals with a wide range of cases. This requirement of generality helps ensure that law results from a deliberative process, one not dominated by momentary zeal and favoritism towards particular persons. Congress acted on passions, not reason, and on partiality, not sound public policy.

It is Congress's constitutional responsibility to make sure that the states do not take life without due process of law. Nobody would suppose Congress must remain silent if states were starving healthy people picked randomly from the street. But there is no plausible claim that the decision to remove Schiavo's feeding tube, made some 10 years after she entered a persistent vegetative state, was insufficiently litigated. There is no evidence that the state courts generally are not giving due consideration to such cases. So there was no justification for Congress to act, much less to act precipitously.

The second easy question is this: Should a competent person be able to refuse medical intervention, including a feeding tube, designed to prolong her life when she enters a hopeless state of pain or incapacity? Yes, absolutely. Prolonging a person's life under such circumstances against her will is a direct affront to her dignity and personal autonomy. It is a paternalistic declaration by the state, enforced by physical invasion of her body, that it knows what's best for her.

The hard question raised by the case was whether there was sufficient evidence of Schiavo's wish to remove the feeding tube. There was no living will, a legal document in which a healthy person clearly makes the choice in writing. The only evidence of her desire to decline medical intervention was the testimony of her husband, testimony that a state trial court found "clear and convincing" after hearing from numerous witnesses on both sides of the question. I'm not in a position to say the trial court was wrong. Neither were the numerous state and federal judges who reviewed the matter on appeal. Neither were Tom DeLay and "Dr." Bill Frist.

I can imagine a state law that says, "No feeding tube shall be removed unless the patient has executed a living will," or, "In the absence of a living will, no feeding tube shall be removed unless at least two family members testify that is what the patient would have wanted." Either of those might be good rules, erring as they do on the side of preserving life. But neither rule is the law in Florida, or any other state, and changing a law after the fact to suit one case cannot properly be called "law" at all.

What does all this have to do with gay rights? Just this: Suppose Terri Schiavo had been gay. Many things about the case would have been different.

To start with, the parents' wishes - whatever they were - would likely have been respected by the Florida state courts, despite whatever her unmarried partner might have said. As a practical matter, Schiavo's husband enjoyed a strong presumption of believability and authority simply by virtue of their marital relationship. Absent special legal arrangements, that is something unavailable to gay partners in Florida.

Imagine that our hypothetical case made it to the stage where a judge ordered the removal of the feeding tube. What reaction would there be from the "culture of life"? Would religious conservatives appear en masse outside a homosexual's hospice bed to pray for her life? Would they get themselves arrested trying to take her food and water? Would they hold press conferences pleading with the governor and state legislature to intervene? Would the Congress convene in extraordinary session to save a homosexual vegetable?

While a few principled people might show up, I doubt a mass movement would emerge. As for intervention by the state government, Florida is the only state in the union that bans adoptions by homosexuals. Forget Congress.

One could conceive a "culture of life" that affirmed the equality of gays. Such a culture might even show a special concern for the dignity and equality of gays, as it would for any marginal persons, like the disabled or the dying.

But that is not the culture favored by religious conservatives. Their culture of life opposes equal treatment of gays in just about every important area of life - in marriage, the military, and employment. Its devotees would bring back sodomy laws if they could. They seek for us only stigma and discrimination. They seek, damn the law, to overwhelm our autonomy just as they presumably did Terri Schiavo's. They seek to impose their vision of what's best for us, even if that means force-feeding us a life we can't bear to live.

First published March 30, 2005, in the Chicago Free Press.

Back in 1999 a group called the Publishing Triangle issued a list of what they considered the best 100 books of gay and lesbian fiction. Some of the choices were eccentric, many were second rate and the list seemed too politically correct, but if it prompted people to read some gay fiction it had some value.

Then last June they issued an equally eccentric list of the 100 best gay non-fiction books. Always eager to be helpful, just as I offered a gratifyingly shorter list of the 10 best gay fiction back then, I belatedly offer my own list of the 10 best non-fiction books relevant to homosexuality.

Alfred C. Kinsey's Sexual Behavior in the Human Male (1948) and its female sequel (1953) seem to be classics no one reads. But the long chapters in each book on homosexuality as well as the rest of the books are valuable reading for what Kinsey actually said as opposed to what people think he said. And Kinsey shows a deeply humane concern for the meaning of sex in people's lives and all varieties of sexual expression.

Stephen O. Murray's American Gay (1996) offers a comprehensive sociological analysis of the reasons for the development of group awareness by gays and the subsequent growth and diversification of the gay community as "a quasi-ethnic group." Murray also explores the issues of sexual promiscuity, the community response to AIDS, the formation of same-sex couples and ethnic gay communities.

Of the many books on gay history, Louis Crompton's magisterial Homosexuality and Civilization (2003) is clearly the best and most exhaustive. Beautifully written and illustrated, the book traces the oppression and resilience of gays and lesbians from the ancient Jews and Greeks, through the Dark Ages, the Renaissance, up to modern times, correcting the accounts of John Boswell and Michel Foucault among others.

C.A. Tripp's The Homosexual Matrix (1975, enlarged 1987) remains the most insightful book on the psychological origin and expression of homosexual orientation and desire. Like his mentor Kinsey, Tripp harshly dismisses Freud and clearly explains the futility of all change therapy - since there is no "illness" to "cure" and desire is resistant to change. He also discusses the psychology of gay relationships, sexual interaction and effeminacy, laying waste to a host of stereotypes in the process.

With a title taken from President Clinton, Bruce Bawer's A Place at the Table (1993) stakes out a gay-assertive middle ground between the religious right and the deconstructionist left, insisting on the full acceptance of gays in the American community. Bawer does not argue for an identity-sacrificing "assimilation" but for a welcoming social "inclusion" in which gay people can contribute their own perspectives.

Stephen Murray's Homosexualities (2000) is the anthropological counterpart to his sociological American Gay, a wide-ranging survey of just about everything currently known about same-sex relationships in scores of other cultures and societies. Murray develops a useful typology of the predominant gay relationships in different societies - in which partners are differentiated by age or by gender roles or are egalitarian.

Because homosexuality cannot be understood without understanding sexuality itself - and most heterosexuals don't, and too many don't want to, which is part of our problem - there are a few books on sexuality generally that must be included in the gay top 10.

Murray S. Davis's cheekily titled Smut (1983) is the most fascinating book on sex you'll ever read. Rejecting the idea of sexual desire as instinctive, Davis explores the conceptual and experiential sources of desire. He examines the effect of sex on people's perceptions of the self and partner as well as the different sexual ideologies of religious conservatives, "naturalists," and liberationists - explaining, among much else, conservative fears of contamination by other people's sexual behavior (e.g., homophobia). A great book, unaccountably obscure.

Richard Posner's Sex and Reason (1992) uses an economic, rational choice model to stress the volitional elements that influence sexual behavior and social policy on topics such as sexual regulations, homosexuality, marriage, pornography, reproduction and the sexual revolution. The approach produces surprising insights and gay-supportive conclusions.

Paul Robinson's The Modernization of Sex (1976) is an insightful reading of Havelock Ellis, Alfred C. Kinsey, and Masters and Johnson to bring to light their fundamental premises and contribution to modern ideas about sex. Robinson omits Freud, but best critique of Freud's obsolete, tangled myth-making is Ernest Gellner's patient demolition, The Psychoanalytic Movement (1985, revised 1993).

That's nine books. For the 10th choose any one from eight runner-ups: Jonathan Rauch's Gay Marriage, Ronald Bayer's Homosexuality and American Psychiatry, Bruce Bagemihl's Biological Exuberance, Richard Mohr's Gays/Justice, John D'Emilio's Sexual Politics, Sexual Communities, Randy Shilts' And the Band Played On and Conduct Unbecoming, and Andrew Sullivan's Virtually Normal.

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