IGF CultureWatch

First published on June 13, 2004, in The Washington Post.

On July 1 Virginia takes a big step backward, into the shadow of Jim Crow.

I do not write those words lightly or rhetorically. Although I'm an advocate of same-sex marriage, I have taken care not to throw around motive-impugning words such as bigotry, hate or homophobia. I have worked hard to avoid facile comparisons between the struggle for gay marriage and the struggle for civil rights for African Americans; the similarities are real, but so are the differences.

Above all, I have been careful to distinguish between animus against gay people and opposition to same-sex marriage. No doubt the two often conjoin. But millions of Americans bear no ill will toward their gay and lesbian fellow citizens, yet still draw back from changing the boundaries of society's most fundamental institution. The ban on gay marriage in 49 states (Massachusetts, of course, being the newly minted exception) may well be unfair and unwise, as I believe it to be. Yet people of good conscience can maintain that although all individuals are equal, all couples are not.

If I seem to be splitting hairs, that is because Virginia - where my partner and I make our home - is not splitting hairs. It has instead taken a baseball bat to civic equality, thanks to the so-called Marriage Affirmation Act.

The act - really an amendment to an earlier law - was passed in April, over Gov. Mark R. Warner's objections, and it takes effect July 1. It says, "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges and obligations of marriage is prohibited." It goes on to add that any such union, contract or arrangement entered into in any other state, "and any contractual rights created thereby," are "void and unenforceable in Virginia."

When gay marriage came up, Virginia was among the first states to preemptively ban it, in 1997. Moreover, Virginia is the only state to forbid even private companies, unless self-insured, from extending health insurance benefits to unmarried couples. That provision affects cohabiting straights but works a far greater hardship on gay couples, who cannot marry.

Those steps, however, impinge on the power of third parties (corporations and the government) to recognize gay couples. In the Marriage Affirmation Act, Virginia appears to abridge gay individuals' right to enter into private contracts with each other. On its face, the law could interfere with wills, medical directives, powers of attorney, child custody and property arrangements, even perhaps joint bank accounts. If a gay Californian was hit by a bus in Arlington, her medical power of attorney might be worthless there. "Sorry," the hospital might have to say to her frantic partner, "your contract means nothing here. Now leave before we call security."

Some of the law's sponsors have denied intending such a draconian result, and courts may interpret the text's vague and peculiar language more narrowly. Nonetheless, the law as written is a threat to all Virginians and indeed to all Americans, gay and straight alike.

Before Thomas Jefferson substituted the timeless phrase "pursuit of happiness," the founding fathers held that mankind's unalienable entitlements were to life, liberty and property. By "property" they meant not just material possessions but what we call autonomy. "Every man has a property in his own person," John Locke said.

It is by entering into contracts that we bind ourselves to each other. Without the right of contract, participation in economic and social life is impossible; thus is that right enshrined in Article I, Section 10 of the Constitution. Slaves could not enter into contracts because they were the property of others rather than themselves; nor could children, who were wards of their parents. To be barred from contract, the founders understood, is to lose ownership of oneself.

To abridge the right of contract for same-sex partners, then, is to deny not just gay coupledom, in the law's eyes, but gay personhood. It disenfranchises gay people as individuals. It makes us nonpersons, subcitizens. By stripping us of our bonds to each other, it strips us even of ownership of ourselves.

Americans have a name for the use of law in this fashion, and that name is Jim Crow. It is not a name much called for anymore, but the Marriage Affirmation Act - could that name be any more inapt? - is the genuine article.

The law may be found unconstitutional or narrowed through interpretation, but judicial review could take years. Far better, in any case, would be for the legislature to salvage its good name by repudiating and repealing the law.

The legislature needs some help in recognizing its error. Dyana Mason of Equality Virginia, a gay advocacy group, notes that the new ban is beginning to attract some outside notice. A nascent movement to boycott Virginia has formed. A few newspapers, including the Washington Post, have editorialized against the law.

That is a start. But when Rhea County, Tenn., tried to ban gays from living there, it became a national laughingstock and hastily backed down.

Obstructing gay couples' private contracts is no less vindictive and abusive, and it deserves the same nationwide opprobrium - especially among conservatives who distinguish between denying marriage to gay couples and denying civil rights to gay individuals. If Virginia's attack on basic legal equality does not offend and embarrass conservatives, what anti-gay measure possibly could? And if this law is not snuffed out, what might be next?

In the middle of our struggles over gay marriage, the Boy Scouts and sodomy laws, it is easy to develop blinders when it comes to what might initially appear to be peripheral causes. Surely, the past five years have been the most eventful in the gay rights movement with acceptance reaching an all-time high.

If current trends are any indication, the American gay rights cause should even be concluded within the next several decades. Gay marriage will eventually become reality across the country, and legal discrimination will come to an end.

This will not, of course, erase homophobia from society; no more than the Civil Rights Act of 1964 erased racism toward blacks. But equality for people of all sexual orientations in the United States will at the very least be written into law, thus realizing the accomplishment of the modern gay rights agenda.

But throughout the world, gays face barbaric oppression that is almost medieval in nature. Up until Afghanistan was liberated in late 2001, the Taliban would regularly flatten gays with massive stones.

Robert Mugabe, the dictator of Zimbabwe, has cracked down on gays and publicly labeled them "worse than pigs." Egypt imprisons homosexuals, and Saudi Arabia beheads them.

In sum, Matthew Shepard-like killings, rare in this country, are a regular occurrence in other nations, particularly those headed up by Islamic fundamentalists.

We have a responsibility to stand up for gay rights not just at home, but abroad. Gay Americans have a special responsibility to speak out, for our nation has always served as a place of refuge for the oppressed.

Having achieved economic success and to a large degree, mainstream acceptance, it would be all too easy to rest on our laurels. Many gays in this country, even though they are denied countless basic rights, are ambivalent about the indignity of their inferior status, choosing to lead closeted or apathetic lives.

This attitude must change not only for the sake of gay rights in America, but for fellow gays living outside this country�s borders.

We could take some lessons from American Jews on how a domestic civil rights cause can effectively turn its focus to the international scene. For many years, national Jewish organizations spent a great deal of effort on domestic concerns, encouraging pluralism and denouncing discrimination against religious and ethnic groups.

Once Jews became largely accepted, international issues like global anti-Semitism and Israel became the raison d�etre of American Jewish groups. This is not to say that American Jewry once ignored Israel and their European brethren in favor of domestic causes, but talk to American Jewish leaders today about what concerns them most and you will almost always hear about international anti-Semitism and Israel.

When faced with decisions to fight nativity scenes on town commons or Islamist terror against Israeli civilians, American Jews have wisely made the latter crisis a priority.

This is not to suggest that the United States should traipse around the world invading nations that do not live up to our standards of gay tolerance. But there are many things that the United States can do, short of military action, to support gay rights abroad.

Employing the moral authority of the United States against our enemies, much like Ronald Reagan did against the Soviet Union, is something that left-leaning gay leaders are loathe to do. But it is undeniable that America stands on the side of human dignity: Compare our record with those states that actively persecute gays.

Withholding economic aid to repressive nations is another possibility, along with affording asylum to gays fleeing repressive states. Once gays in this country achieve full marriage equality and win the fight to erase discrimination from the books, non-profit gay money, which is quite plentiful, should be devoted to making gay rights a central part of the American international agenda.

These domestic victories are closer than many gay activists imagine them to be, and so national gay organizations would do well prepare for future battles.

With the current rapid progress, we are emerging more strident than ever in our demands for fair treatment, and these successes have empowered a new generation of gay activists. What agenda these future leaders set is impossible to predict, but advocating the use of American power to aid gay people abroad is a noble start.

When Ronald Reagan died on June 5, many gay Americans lost no tears. The conventional view in gay political circles is that Reagan, a strong conservative, was virulently anti-gay. In this view, Reagan was propelled to office by the newly powerful religious right, and repaid that support with socially conservative administration appointments and policies. (Most unforgivably, according to the conventional view, Reagan did nothing while thousands of gay men died of AIDS. That's a charge I'll address in my next column.) The truth about Reagan and gays, however, is more complicated.

Start with the notion that Reagan himself was anti-gay. Like most of us, Reagan reflected the prejudices of his times. Born in 1911, he grew up in a small-town world that misunderstood and feared homosexuality. He was 62 by the time homosexuality was removed from the official list of mental disorders. According to biographer Lou Cannon, Reagan shared the common view of his time that homosexuality was a sickness. He was not above telling jokes about gays.

Still, perhaps because he worked with gay actors in Hollywood and had gay friends, Reagan was relatively tolerant. Cannon notes that Reagan was "respectful of the privacy of others" and was "not the sort of person who bothers about what people do in their own bedrooms." This attitude was consistent with Reagan's larger philosophical commitment to individual liberty and limited government.

Reagan's daughter, Patti Davis (the politically liberal one), recounted on Time magazine's website that she and her father once watched an awkward kiss between Doris Day and Rock Hudson in a movie. Reagan explained to his daughter that the closeted Hudson would have preferred to kiss a man. "This was said in the same tone that would be used if he had been telling me about people with different colored eyes," recalled Davis, "and I accepted without question that this whole kissing thing wasn't reserved just for men and women."

During Reagan's presidency the first openly gay couple spent a night together in the White House. In a column for The Washington Post on March 18, 1984, Robert Kaiser described the sleep-over: "[The Reagans'] interior decorator, Ted Graber, who oversaw the redecoration of the White House, spent a night in the Reagans' private White House quarters with his male lover, Archie Case, when they came to Washington for Nancy Reagan's 60th birthday party. . . . Indeed, all the available evidence suggests that Ronald Reagan is a closet tolerant."

Tolerance is not acceptance, however, and Reagan made it clear in speeches that he would not cross the line to the latter. Said Reagan during the 1980 presidential campaign: "My criticism is that [the gay movement] isn't just asking for civil rights; it's asking for recognition and acceptance of an alternative lifestyle which I do not believe society can condone, nor can I."

Aside from his tolerant personal attitude, Reagan's actual record on civil liberties for gays was surprisingly good. Cannon reports that Reagan was "repelled by the aggressive public crusades against homosexual life styles which became a staple of right wing politics in the late 1970s."

In 1978, for example, Reagan vigorously opposed a California ballot initiative sponsored by religious conservatives that would have barred homosexuals from teaching in the public schools. The timing is significant because he was then preparing to run for president, a race in which he would need the support of conservatives and moderates very uncomfortable with homosexual teachers. As Cannon puts it, Reagan was "well aware that there were those who wanted him to duck the issue" but nevertheless "chose to state his convictions."

Reagan penned an op-ed against the so-called Briggs Initiative in which he wrote, "Whatever else it is, homosexuality is not a contagious disease like the measles. Prevailing scientific opinion is that an individual's sexuality is determined at a very early age and that a child's teachers do not really influence this." This was a remarkably progressive thing for a politician, especially a conservative one about to run for president, to say in 1978. The Briggs Initiative was overwhelmingly defeated. Its sponsors blamed Reagan for the defeat.

Nor does Reagan's record as president support the view that he was strongly anti-gay. Reagan was not much worse on gay issues than Jimmy Carter, his opponent in 1980, who avoided even meeting with gay groups. Walter Mondale, Reagan's opponent in 1984, received only tepid gay support, according to gay activist Urvashi Vaid in her book Virtual Equality. Neither Carter nor Mondale made support for any gay rights measure an issue in their respective campaigns, though their party's platform included a gay rights plank.

The military's ban on service by homosexuals was firmly in place long before Reagan became president. It remained in force during his tenure, of course, but discharges for homosexuality declined every single year of Reagan's presidency, suggesting the administration wasn't interested in anti-gay witch-hunts.

It's true that no pro-gay legislation, like an employment non-discrimination bill, made headway during the Reagan years. But anti-gay legislation also made little progress. Reagan often talked the talk of religious conservatism, but he did not often walk the walk.

His priorities were elsewhere: reviving the country's morale, strengthening national defense to defeat the Soviet Union in the Cold War, limiting the growth of the federal government, and boosting the economy. At each of these, Reagan succeeded brilliantly. Gays, like all other Americans, continue to benefit from his legacy.