In DOMA’s Wake.

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A word of warning from libertarian-leaning Republican Chuck Muth, a political consultant and head of Citizen Outreach, a limited-government public policy organization, on what might happen if the U.S. Supreme Court throws out the Defense of Marriage Act (DOMA). Muth writes:

In any event, the New York decision based upon the Loving decision [in which the Supreme Court voided laws against interracial marriage] could well be the basis of a case which ultimately ends up before the Supremes over the constitutionality of DOMA. And when it does, my money is on the Court striking down DOMA based on the Loving precedent and the 14th Amendment.

Which brings us to the Federal Marriage Amendment (or whatever focus-grouped name they're now calling it).

If DOMA does get struck down, that will further inflame a large and vocal segment of the public and fuel congressional efforts to pass a constitutional amendment banning same-sex marriages. Unlike today, such an amendment, post-DOMA, could well garner the 2/3 vote needed in both houses of Congress to send the ban to the states. And just by looking at the number of states which passed gay marriage bans last November, there's a good shot that such an amendment could get the [3/4ths] ratification needed to approve it.

Would this happen? I don't know, but given current political realities, it certainly could happen. Should marraige activists challenging DOMA at least give serious attention to this scenario? Absolutely! Are they? Don't bet the ranch.

(hat tip: Rick Sincere

Update: Loyal CultureWatch reader "Pillar" comments:

In the corporate world, scenario planning (also called "war gaming") is vital before any major strategic undertaking -exploring all the possible consequences of an initial action, whether positive or negative to your goals, and then developing possible counter-responses within each scenario, and on and on.

This type of complex strategic planning helps many companies avoid going off the cliff by attempting the wrong takeover or brand launch.

As for gay activist organizations, I think their strategy sessions basically have consisted of jumping up and down and yelling, "George W. Bush, You're Fired!"

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New York Two-Step.

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New York City Mayor Michael Bloomberg, a moderate Republican, announced that while he supports the right of gay couples to marry, the city will appeal last week's ruling by a state judge giving the Big Apple 30 days to start issuing marriage licenses to same-sex couples. Despite his support for gay marriage, Bloomberg said the state court's ruling was not the way to achieve that goal. As reported in the New York Sun (the place to go for honest analysis):

The judge's decision caught Mr. Bloomberg and his aides off-guard and put him in a position of having to choose between courting the city's liberal majority and fending off challengers from his right in a campaign year....

Mr. Bloomberg told two hostile crowds - the Human Rights Campaign and the Lesbian & Gay Pride Foundation - that he was appealing the decision because the ruling "was incorrect" and "the current state Constitution does not permit same-sex marriages." He was heckled and booed by the two audiences, and his critics wasted no time in criticizing his attempt to have it both ways.

Yet, interestingly:

Gay activists in the city said privately they sympathized with the mayor. While they want support for gay marriages, there is a widespread belief in the community that the dust-up caused by the San Francisco marriages didn't help their cause, it hurt. Having New York rush to allow marriages that might only be rolled back later doesn't make much sense, they said.

And that's a response that does make sense. This matter is going to go to the state's highest court one way or another, given the upstate marriage suits that Democratic Attorney General Eliot Spitzer is fighting. If the court upholds gay marriage, couples in NYC can then get married. If it goes the other way, what would be gained by allowing mass weddings of dubious legality on the City Hall steps, repeating the images that came out of San Francisco last year that gays cheered but many others viewed as an anarchistic assault on marriage, thus fueling the national backlash. And to what end, since California's high court than nullified those weddings?

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It’s All Politics.

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Remember the "Saturday Night Live" skit where John Kerry defended his position on the Iraq war as being "perfectly consistent" - he was always for the war when addressing conservatives and always against it when speaking to liberals.

Well, New York's Democratic Attorney General Eliot Spitzer, the scourge of Wall Street and would-be next governor, has taken an oddly Kerryesque stance on the gay marriage lawsuits being argued in his state. According to a report by law professor/marriage advocate Arthur Leonard in Gay City News, in the suit Lambda Legal brought in Manhattan, Spitzer:

was invited to intervene in the case to defend the marriage statute, he declined to do so, leaving the defense of the case to the City Law Department....

On the other hand, Spitzer's office is defending the marriage law in other lawsuits pending outside the city, in which his office has taken the position that the marriage law is constitutional.

While upstate voters might not take to the idea of gay marriage, liberal Manhattan is a different story. Thus is all explained.
--Stephen H. Miller

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More Marriage, More Backlash?

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A New York State judge in Manhattan ruled that denying gay couples the right to marry violates the state constitution. The matter will now go to New York's highest court, but it raises the possibility New York City (the only place where the ruling applies) could be ordered to issue marriage licenses to same-sex couples beginning next month. (Here's the New York Times story.)

The case was brought by Lambda Legal on behalf of five New York City gay couples.

While I celebrated the Massachusetts ruling ordering that state to recognize gay marriages, I've since changed my view and now believe a more effective and practical strategy is to go to bat for civil unions with all the state rights spouses have, as in Vermont. Polls show far wider support for civil unions than for marriage, and many conservatives now view it as the "compromise" position -- despite the hard right's opposition.

Once the electorate is comfortable with the level of recognition granted under civil unions, it would be far easier to advance to full marriage equality. But this view is certainly not shared by all of our IGF contributing authors, to be sure.

In any event, the activists have staked out a strategy of using the nation's most liberal courts to order full marriage recognition now, the electorate be damned. While I'd like to believe they'll succeed in securing marriage rights for gay Americans, I think it's a high-risk, all-or-nothing proposition. (See my Jan. 29 posting about activists in Connecticut scuttling a civil unions bill that was about to pass.)

And if the backlash against judicially decreed gay marriage leads to passage of the proposed federal "marriage protection" amendment - or even just more state amendments in addition to the 13 passed last year - history will record this approach as well-intentioned but strategically calamitous.

But maybe I'm wrong; the next few years will let us know.

Update: Gay Patriot predicts a New York statewide voter referendum in 2005 that will defeat gay marriage (in the comments area, that legal possibility is disputed). I'd say it's more likely the state's highest court will put the kabosh on the lower court ruling - and if it instead decreed the rights of marriage through civil unions, I wouldn't be displeased.

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He Who Hates Most?

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Some of the comments to the previous item show an almost pathological hatred of the current administration, claiming, for instance, "What Bush is doing to gays is unacceptable for any decent human being. He is destroying every single part of our lives." This is what many on the gay left (and some libertarians) believe.

For those who don't read the comments (which, alas, mix thoughtful responses with the venting of antagonists raging at a site they're compelled to visit and attack daily), I answered a suggestion I was "blaming the victims" as follows:

One of my purposes on this blog is to hold gay activists accountable for strategies and actions I see as counter-productive - or at least counter-productive in advancing gay equality; they may in fact fulfill the objective of producing successful fundraising letters.

Am I always right? No. Do I think it's useful to challenge the activists in this way - yes, if for no other reason than most gay media is nothing but an echo chamber - running press releases as if they were analysis.

If you think Bush is the devil, then you're not going to agree with me on this. If you think Bush and all other politicians respond to political interest groups on the basis of whether it serves their interests to do so, then my point - gay Republicans need to be Republicans, and thus build leverage in the party; supposedly nonpartisan groups need to be effectively nonpartisan, and thus able to lobby both sides - might be seen as having some merit.

If I can be indulged another link to Rich Tafel, I see he is of similar mind when he writes:

During my time running a gay rights group I noticed a disturbing trend. When I was in conflict with Republicans I was lauded by the gay press and fundraising shot up. When I worked in cooperation with Republicans to accomplish things I was called a shill and fundraising was more difficult.

So here's the paradox for gay organizations. Though cooperation should be the goal, their funding depends on attacking Republicans. The gay political groups will not make progress nor seek opportunities for finding common ground, and they will be wealthier for it.

Meanwhile, there are reports that openly gay U.S. Rep. Jim Kolbe (R-Ariz) is being considered by the Bush administration for the important post of U.S. Trade Representative. (Hat Tip: Gay Patriot). If he should be appointed, expect many of the main gay activists groupings to respond on a par with the hostility minority activists have shown to the appointments of Condi Rice and Alberto Gonzalez.

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Those With the Leverage Get Their Way.

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A few weeks ago President Bush said that "nothing will happen" on the proposed federal amendment to ban gay marriage because too many senators did not see the need for it, signaling that pushing the amendment would be a low priority. Then hell broke loose on the right, as social conservatives demanded that the president change his tune or they'd turn on him in the social security reform debate. Dutifully, tonight Bush included the amendment in his state of the union address (though again stating his case in terms of reining in "activist judges").

Sadly, gays have no leverage with the party in power. Gays overwhelming vote and fund the Democratic party, and the Human Rights Campaign, the largest gay organization, choose inaugural week to attack Bush - right after he made his statement backing off of the amendment, just as activists were either critical or silent when, before the election, Bush made conciliatory remarks about civil unions.

The GOP will continue to kow-tow to social conservatives as long as the gay line is "one party only," as recently reiterated by Matt Foreman of the National Gay & Lesbian Task Force when he said, "It's not relevant what the Republicans in the Senate do."

Gays won't support a party that doesn't support gay equality; that party won't support gay equality until gay support increases gay leverage. That's the way things now stand.

Update: Rich Tafel writes:

When the President said a few weeks ago that he wouldn't push this issue, gay groups attacked him for being two faced and social conservatives responded with a letter to Karl Rove demanding a response. I'm hopeful that by mentioning it he's given the social conservative wing of the party a bone, but with pressure against him from the gay left and religious right that will be tough.

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Marriage Is More Than a Civil Union

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Is there anything important at stake in the debate over whether to recognize gay relationships as marriages or as civil unions? I asked that question to a group of gay friends not long ago. Out of 10 people, no one could come up with a very good answer. A few said that as long as the law gave gay couples equivalent legal rights the difference between marriages and civil unions was "semantic." The implication was that the difference is trivial. Since increasing numbers of Americans seem to view civil unions as an acceptable compromise between nothing and full-fledged gay marriage, what's the big deal?

Recognizing gay marriage, as Massachusetts now does, means conferring on gay couples all of the rights, benefits, and responsibilities conferred on opposite-sex married couples under state law. Beyond these legal matters, however, recognizing gay marriage offers the promise of something at least as important. That is the social approval and support that come with marriage. Marriage has a long history; it is woven into our cultural fabric. It comes with common expectations and a common language that couples and their families and friends readily recognize.

As practiced in Vermont, civil unions confer on gay couples all of the rights, benefits, and responsibilities conferred on opposite-sex married couples under state law. What civil unions cannot offer is the social approval and support that come with marriage. Civil unions have no history; they are not woven into the fabric of our culture. There are no common expectations or language that come with them. To family and friends, a civil union cannot be asserted; it must be explained. Even after the explanation, a civil union is unlikely to be regarded as the equivalent of a marriage.

This difference between gay marriage and civil unions cannot be dismissed as a merely semantic one. Words are the way we frame and experience our lives. They reflect and reinforce what we think of others and what others think of us. "Gay" and "faggot" may describe the same sexual orientation but they are miles apart in meaning.

While the difference between "marriage" and "civil union" is nowhere near as large as the difference between "gay" and "faggot," it is large enough to matter. How do we know that? Just consider the numbers of good people who bristle at calling our relationships "marriages" but are willing to call them "civil unions," even as they are willing to give us the same legal rights under either.

Obviously, for these people, something very important is communicated by he word marriage that has nothing to do with legal rights and benefits. For the same reason, something very important is denied a gay couple by calling their relationship a "civil union" rather than a "marriage." The culture that denies us the word marriage is a culture that denies us more than a word. It denies us the full measure of respect that accompanies the word and that our relationships are entitled to have.

Consider an analogy. Most of the country once banned interracial marriages. When some states began allowing such marriages, a member of the House of Representatives even proposed amending the Constitution to ban them. As late as 1958, some 94 percent of white Americans still opposed interracial unions. By 1967, when the Supreme Court declared the laws unconstitutional, 16 states still prohibited interracial marriages.

Imagine that someone had proposed the following to interracial couples: "Your relationships have been subjected to terrible discrimination. You deserve all of the rights, benefits, and responsibilities of marriage. We are going to give you these. Your relationships will be identical to marriage under the law, with one exception. We will not call your relationships 'marriages,' as we do the union of same-race couples. Your relationships will be called 'civil unions.' That's the deal: it's civil unions or nothing."

Would interracial couples have taken the deal? I think most would have; it's better than nothing. In fact it's much better than nothing.

But would they have thought, and would their families and friends have thought, that the difference between interracial civil unions and interracial marriages was trivial? The word difference itself would have spoken volumes. It would both reflect continued discrimination and reinforce continued discrimination.

Where equivalent legal standing is otherwise given, the semantic difference between marriage and civil unions could have no purpose except to stigmatize and isolate previously disfavored relationships. The analogy is not perfect, but much the same cold be said about the difference between gay civil unions and gay marriages.

Two qualifications are in order. First, no matter what gay relationships are called, a significant part of the population will not regard them as equal to heterosexual marriages. To that extent, gay marriage will not provide the same degree of social acceptance and support that heterosexual marriages now get. But attitudes are not static. Law has an educative function, and the sooner the law regards gay couples as the full equivalent of married heterosexuals, the sooner people will come to see them as equivalent. Law can help confer legitimacy, just as it can help deny it.

Second, although civil unions have no history and no commonly accepted language or expectations, this too can change. Gay couples in Vermont, and perhaps soon elsewhere, are truly making history with civil unions. The problem is, they are millennia behind marriage.

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College FreshmenTake a Fresh Look at Gays

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First published February 2, 2005, in the Chicago Free Press.

College freshmen's attitudes toward legalized gay unions seem to have been influenced, at least temporarily, by the dire warnings emanating from last fall's Republican presidential campaign and the controversies over state and federal constitutional amendments barring gay marriage.

That, at least, is the most plausible conclusion to draw from a survey of nearly 290,000 college freshmen conducted during freshman orientation last August and September by the Higher Education Research Institute at the University of California, Los Angeles.

Although the annual survey chiefly collects demographic information and education and career plans, it also includes 16 statements about social and academic issues that the freshmen are invited to agree or disagree with. Two of those statements relate to gay unions.

In the fall 2003 survey, 59.4 percent of the freshmen agreed with the statement, "Same-sex couples should have the right to legal marital status." But in the 2004 survey, just released at the end of January, that support fell slightly to 56.7 percent, a decline of 2.7 points.

The language "legal marital status" was originally developed back in 1997 - when the statement was first added to the survey - to delimit the meaning to the legal elements and avoid the religious implications many people have with the word "marriage." Nevertheless, it is possible that some freshmen interpreted the statement to refer to religious marriage and responded accordingly.

The other statement the freshmen were invited to agree or disagree with was, "It is important to have laws prohibiting homosexual relationships." In 2003, barely a quarter (26.1 percent) agreed with that statement. But last fall, support climbed to 29.9 percent, a rise of 3.8 points. That was the largest single change in support for any statement in the survey.

When that statement was added to the survey in 1976, it referred to sodomy laws. Sodomy laws were still in force in a majority of states while gay marriage, civil unions or domestic partnerships were not even a blur on the horizon for most people. But now more than a quarter century later, the statement is undoubtedly interpreted to refer to so-called "defense of marriage" laws or constitutional bans on gay marriage.

And in that light, while it is not encouraging that support for such laws rose almost 4 points in the last year, it is not surprising, and it is in a way encouraging that given the absence of any nationally prominent political or religious figures actually arguing for gay marriage, the change was as small as it was: More than 70 percent of all freshmen still oppose such restrictive laws.

There are two other factors that might contribute to the 2004 loss of support. One is religion. This year's student sample had slightly more Baptists (up by 0.7 points) and Mormons (up 1.0 points), both extremely anti-gay denominations, and 0.6 points fewer members of the United Church of Christ (a liberal denomination).

In addition the sample was 1.9 points less Catholic, and Catholics (unlike that church's hierarchy) tend to be more accepting of gays and gay unions than many Protestant denominations. In fact, support for gay "legal marital status" actually rose slightly in 2004 among freshman men at Catholic schools.

The other factor influencing the results was the polarizing effect that the issues and the rhetoric of the past year's prolonged election season seems to have had on young people as well as adults. Those may have increased unease about gays and lesbians among conservative-leaning moderates.

The number of students describing themselves as politically "middle-of-the road" fell to 46.4 percent, its lowest point in more than 30 years. The percentage describing themselves as "liberal" or "far left" increased 2.5 points to 29.5 percent and the number describing themselves as "conservative" or "far right" increased 1.5 points to 24.1 percent.

If "defense of marriage" laws were taken to be part of the conservative package, and for many they probably were, then the 24.1 percent who are conservative or far right constituted the vast majority of support for those laws. But that also means that almost none of the "middle-of-the road" students supported "defense of marriage" laws - specifically, only one in eight.

One interesting sidelight is that although women have always been more supportive of gays than men have by at least 15 percentage points - and that was true again this year - the decline in support among women was slightly greater this year than among men.

One possible interpretation is that young heterosexual women feel more invested in the idea of marriage than men do and respond more readily to claims that the institution is under attack. This may not be reasonable, but how many fears about gays are?

On other issues: 58.6 percent think colleges should ban racist and sexist speech, but only 43.7 percent think colleges have the right to ban extreme speakers. More than half (53.9 percent) think abortion should be legal but only 37.1 percent think marijuana should be legalized and only 33.2 percent think the death penalty should be abolished.

****

Author's note: I have corrected a small statistical error in the original print version.

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Iran Goes for the ‘T’ (But Hold the GLB).

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Iran clerics have no problem with men undergoing sex change operations, reports the Los Angeles Times:

In the Islamic Republic of Iran, gay male sex still carries the death penalty and lesbians are lashed, but hundreds of people are having their gender changed legally, bolstered by the blessings of members of the ruling Shiite clergy.

"Approval of gender changes doesn't mean approval of homosexuality. We're against homosexuality," says Mohammed Mahdi Kariminia, a cleric in the holy city of Qom and one of Iran's foremost proponents of using hormones and surgery to change sex. "But we have said that if homosexuals want to change their gender, this way is open to them."

Sadly, gay men are no doubt facing intense pressure to undergo sex change/castrations. But one can see how, from the fundamentalists' perspective, this actually affirms the stark duality of gender that they need to uphold.

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Beyond SpongeBob.

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A funny "Brady's Corner" cartoon in the Washington Blade shows a quavering SpongeBob Squarepants confessing: "First they came for Bert and Ernie, and I didn't speak up because I wasn't a Muppet. Then they came for Tinky Winky, and I didn't speak up because I wasn't a Teletubby. Then they came for me..."

Yes, to our eyes, James Dobson, head of the religious right's Focus on the Family, looks ridiculous when he claims that SpongeBob's participation in an educational video remix of "We Are Family," being distributed to elementary schools to promote diversity and tolerance, is part of a cryptic "pro-homosexual" agenda. But an op-ed by Ruth Marcus, a member of the Washington Post's editorial page staff, titled "Ready to Throw in the Sponge?" raises some provocative issues that supporters of gay equality would be foolish to dismiss out of hand.

She writes, "who could resist the temptation to make fun of the alarm-sounders? Not I, certainly - how else to respond to people who work themselves into a lather over an animated talking sponge? Yet, in an odd way, I also find myself understanding some of what's bothering them."

She notes, further, that:

...if you peel away his repulsive prejudice against gays and his overheated paranoia, Dobson's stated problems with the video echo the worries of many ordinary parents, even liberal ones, that they are the losers in the culture wars and that they have been supplanted in their role by outside forces.

This phenomenon was brought home to me recently when my elementary school-age children's private school put up a photography exhibit on families with gay members.... What discomfited some of us - many of us, in fact - was the explicitness of the accompanying text describing families with bisexual and transgender parents and families with a history of incest.

This was a PC bridge too far. One day that week, I was driving the kids home and asked the innocuous question of what they had done in school. "We went up to see the exhibit and learned about transgender families," my 9-year-old answered brightly. "Will was a little confused about how the woman had the baby if she is a man." I held my breath, waiting for the 7-year-old to follow up.

...is it really necessary, absent such a predicate, to go through all this in elementary school? And whether my reaction is right or wrong, shouldn't this be a decision for me and my husband to make - not something sprung on us by our school? This is the way in which I find myself unexpectedly, and somewhat unsettlingly, aligned with the Focusers on the Family.

I'm not embracing Marcus's view of things, but I think it's important for those who work for gay equality to understand these fears instead of just dismissing them as "bigotry" and "hate." It might also help to recognize that some (not all) of what progressive activists want to preach to school kids, where they're able to do so, can be over the line.

More Recent Postings
1/23/05 - 1/29/05

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