IGF CultureWatch

First published February 4, 2004, in the Chicago Free Press.

Some weeks we win.

The other week, in Florida, we lost.

For months we have been waiting for the courts to overturn Florida's 1977 blanket ban on gays and lesbians adopting children. Florida is the only state to have such a ban - most states put the welfare of children first.

The story was well-publicized, especially after the case was taken up by Rosie O'Donnell. Life partners Steve Lofton, a pediatric nurse, and Roger Croteau were bringing up five foster kids, three with HIV. Lofton quit his job to raise them full-time. Then, one of the kids, Bert, who had been placed with Lofton and Croteau when he was an infant, no longer tested positive for HIV. Which means that under Florida law he became "adoptable" - and so the state sought a new home for him.

Lofton and Croteau want to adopt Bert but they couldn't because of the adoption ban. Interestingly, Florida would have given Lofton legal guardianship, which would have taken Bert out of the foster system but also threatened his Medicaid coverage. In other words, Florida found Lofton to be a satisfactory parent - it just didn't want to give him the same full legal authority or financial help a straight man would get automatically.

So with the ACLU's help Lofton went to court. Hopes were high. Lofton seemed an ideal test case. But even though the court admitted that "by all accounts, Lofton's efforts in caring for these children has been exemplary," the 11th U.S. Circuit Court of Appeals ruled against Lofton and Croteau and other gay men challenging the law.

If the law is to change, legislators need to change it, the court ruled.

That seems unlikely when the state's governor is Jeb Bush, who responded to the ruling by saying he was pleased. "It is in the best interest of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored by both a father and a mother," he stated.

But we all know this law - and this court decision - aren't in place in order to protect the interests of adopted children. There are 43,000 children in Florida's foster care system (this number includes children waiting to be adopted, as well as children who may be reunited with their families). The majority of these children are minorities and a significant number are children with special needs, like Bert. That means that many of these are children who won't easily be adopted.

But Florida's primary concern isn't that these children get homes. And it isn't worried about the taxpayers supporting these children. And it isn't troubled over the citizens who will be impacted later, when these children, shuffled from home to home without adequate love or nurturing, enter the prison and welfare systems as adults.

As the State of Florida said in its argument, the state is concerned about only one thing: Retaining the right to legislate its "moral disapproval of homosexuality."

And the court, while noting the U.S. Supreme Court's decision in Lawrence vs. Texas, said, "We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right."

Therefore, the court reasoned, Florida isn't violating the Constitution's equal protection clause when it says that gays and lesbians are automatically banned from adopting, no matter what their qualifications. Because gays and lesbians don't have a right to do anything except have sex in the privacy of their own bedrooms.

This is not the way we wanted post-Lawrence life to go. Indeed, it is part of the feared backlash against Lawrence.

Other evidence of the backlash has been cropping up slowly across the country. The Democratic presidential contenders have been trying their hardest (and, I think, wisely) not to make gay issues a central part of their campaigns. Support for civil unions and same-sex marriage has been steadily dropping in polls. And also last month the Ohio legislature passed a Defense of Marriage Act that would make the state the 38th to limit marriage to a union between a man and a woman.

This backlash is not only impacting adult gays and lesbians. It is impacting entire families. It is impacting children like Bert, who can be ripped from their homes - or never placed in homes - because the state is terrified about what gay couples might do in their bedrooms.

So yes, we lost last week. And maybe if it were only the gay and lesbian community who lost, it wouldn't be so bad. But Florida's foster care children lost. They are hurt most by this law and this ruling, which we hope the U.S. Supreme Court will overturn.

Until then Florida will remain a state more committed to its backward, pinched view of the world than to its citizens - young and old.

It's a remarkable thing for a sitting vice president to disagree publicly with the president he serves. It's all the more remarkable when that happens in a presidential election year - and on an issue of fundamental importance.

Dick Cheney recently announced that, in contrast to George Bush, he does not support a federal constitutional amendment banning gay marriage. At a campaign event in Davenport, Iowa, on August 24, an audience member asked Cheney this question: "I need to know, Sir, from your heart - I don't want to know what your advisers think or even your top adviser - what do you think about homosexual marriages?"

Here's Cheney's response, with my comments following parts of his reply.

"Well, the question has come up in the past with respect to the question of gay marriage. Lynne and I have a gay daughter so it's an issue that our family is very familiar with."

Never before had Cheney publicly acknowledged that one of his daughters, Mary, is gay. Her sexual orientation had briefly come to the fore during the 2000 presidential election. But back then the Cheneys took a "no comment" approach, with Cheney's wife, Lynne, telling a reporter that her daughter had never declared "such a thing."

With this recent comment, Cheney is saying three important things:

1. First, he acknowledges that "gay" people exist. While that may seem obvious to most of us, many religious conservatives deny there is a homosexual orientation. For them, homosexuals are just heterosexuals doing wicked things.
2. Second, Cheney's frank talk is an assertion that having a gay person in one's family is nothing to be ashamed of.
3. Third, it's obvious Mary Cheney's homosexuality has influenced her very conservative family's views on gay-rights issues. Even the issue of gay marriage has been seriously discussed in the Cheney family.

Earlier this year, when President Bush endorsed the Federal Marriage Amendment, critics faulted Mary Cheney for quietly acquiescing in such anti-gay policy. It's clear now that she has not been quiet; she has been sticking up for gay rights in her own way. Moreover, she's having an effect on her father.

"We have two daughters and we have enormous pride in both of them, they're both fine young women and they do a superb job, frankly, of supporting us, and we were blessed with both our daughters."

Here Cheney is telling religious conservatives that there's nothing wrong with being gay. One can be gay and be a "fine young woman" at the same time. One can be gay and do a "superb job" of supporting one's family. One can have a gay daughter and count that fact as a "blessing." Again, none of this is revolutionary to most of us. But to many religious conservatives who form the base of the GOP, it is anathema.

"With respect to the question of [unintelligible word] relationships, my general view is that freedom means freedom for everybody. People ought to be free to enter into any kind of relationship they want to."

Cheney's conservative credentials were burnished decades ago. He was one of the most conservative members of Congress during his ten years representing Wyoming in the House of Representatives. His voting record was uniformly anti-gay. For someone like him to declare, amid a national debate over gay marriage, that gay couples must be allowed to share in American liberties is a watershed.

"The question that comes up with respect to the issue of marriage is, what kind of official sanction or approval is going to be granted by government, if you will, to the particular relationship? Historically, that's been a relationship that's been handled by the states. States have made the basic fundamental decision what constitutes a marriage.... [T]hat's appropriately a matter for the states to decide and that's how it ought to best be handled."

It's clear Cheney is not prepared to say publicly whether he actually favors gay marriage. I'd bet that, in his heart of hearts, he supports it or at least doesn't strongly oppose it. He hasn't mouthed the Bush-Kerry-Edwards mantra that "marriage is between a man and a woman."

Cheney emphatically reaffirms the pro-federalism position on the issue. Some states may adopt gay marriage; others may reject it; and still others may opt for something in between, like domestic partnerships or civil unions. In Cheney's view, the whole issue is one for individual states to resolve. This federalism concern has been the basis for conservative opposition to the FMA. It was the winning argument when the Senate rejected the amendment in July.

"The president has, as a result of the decisions made in Massachusetts this year by judges, felt that he wanted to support a constitutional amendment to define at the federal level what constitutes marriage.... At this point my own preference is as I've stated, but the president makes basic policy for this administration...."

Cheney accomplishes two things here. First, he remains a loyal foot soldier for the administration by acknowledging that the president sets policy. Second, he subtly undermines the basis for the president's policy judgment. The president may fear that judicial activism is about to unleash gay matrimony on the country, justifying a federal amendment, but Cheney does not. He has listened carefully to the arguments for a constitutional amendment and soundly rejected them.

So:

1. Gay is good.
2. Freedom is for everybody.
3. Don't mess with the Constitution.

Forget Bush and Kerry. Cheney for president, anyone?

First published January 30, 2004, in the Chicago Free Press.

Each September during freshman orientation, the Higher Education Research Institute at UCLA conducts a survey of more than 275,000 first-year college students, asking questions about their backgrounds, education and career plans, and views on controversial social issues.

Among the questions is one which asks whether "it is important to have laws prohibiting homosexual relationships" and one added in 1997 that asks whether "same sex couples should have the right to legal marital status" - essentially civil unions or civil marriage.

It was reasonable to wonder if this year's freshmen would show diminished support for gay equality. The Supreme Court decision last June decriminalizing sodomy was immediately denounced by conservative and evangelical leaders not only for its substance but even more for opening the door to gay marriage, a possibility characterized as a threat to "family values."

At least as of September the freshmen did not seem to have been impressed by that alarmist message. Support for "laws prohibiting homosexual relationships," probably interpreted as Defense of Marriage laws, rose just 1.3 points over last year's freshmen to a not very impressive 26.1 percent. So barely one-fourth of the freshman think it is necessary to prohibit formalized gay partnerships.

And freshman support for "legal marital status" for gay couples remained essentially unchanged at 59.4 percent. That figure is actually a minute increase over last year's 59.3 percent, but the change is statistically negligible. In any case, it means that six out of ten college freshmen support gay civil marriage.

It is encouraging to notice that that level of support continues even as the proportion of freshmen describing themselves as liberal or "far left" fell slightly to 27 percent and the proportion describing themselves as conservative or "far right" rose 1.4 points to 22.7 percent. Almost exactly half (50.3 percent) describe themselves as "middle of the road."

This means two-thirds of the "middle of the road" freshmen continue to favor "legal marital status" for gays. So support for gay civil unions or gay civil marriage is - for college freshmen - the "middle of the road" position.

As in every other survey, women are more gay-friendly than men. More than two-thirds of freshman women - 66.9 percent - support "legal marital status" for gays, an increase of 0.6 over last year. That increase was canceled out by an identical decrease of 0.6 points from last year among freshman men, down to 50.2 percent - still more than half.

Also as in all previous years, bright freshmen are more gay-supportive than less bright freshmen. Both men and women at public and private universities requiring high SAT scores are 8 percentage points more likely to support "legal marital status" for gays than freshmen at universities with lower SAT requirements.

It is worth stepping back to ask what these figures could tell us. For one thing, the steady progress of gay-support paused. Here are the percentages of freshmen favoring civil marriage for gays:

• 1997 - 50.9 percent.
• 1998 - 52.4 percent.
• 1999 - 53.9 percent.
• 2000 - 56 percent.
• 2001 - 57.9 percent.
• 2002 - 59.3 percent.
• 2003 - 59.4 percent.

The survey was taken two months after the Supreme Court's sodomy law decision so the conservative reaction may have had some influence. Since then, anti-gay pressure has mounted in reactions to gay Episcopal bishop and the Massachusetts decision on gay marriage, so a survey now might show slightly lower support.

Many thoughtful people think a majority of Americans have not had time to become comfortable with gay progress. Young people who grow up knowing gays and seeing them on television don't have to adapt: this is the world they know. But for adults, becoming comfortable with social change is a slow process and some never adjust.

Alan Ebenstein, biographer of social philosopher Friedrich Hayek e-mailed me, "In many respects, the societies of today practice more toleration, acceptance, and celebration of homosexuals and homosexuality than almost any in history. ... (But) the social changes of the past 40 years or so have been too great in too short a period of time from a system that was in many, if not all, respects working tolerably for there not to be some sort of a social reaction."

Certainly the hesitation we are seeing is to be expected and we may see a brief downturn in support. But I think if we continue to expand our gay visibility, share our lives calmly and openly, and work to create empathy for our desire for an equal chance for happiness and a meaningful life, we can make sufficient progress among the young who keep coming along to counter-balance and overcome the anxiety reaction among older Americans.

I think we currently have sufficient support to block a constitutional gay marriage ban. But in any case an open debate can only gain us additional support. And in the long run, with the turnover of the generations eventually the majority of Americans will be comfortable enough with us to see that we richly deserve the same legal opportunities they have.

Originally published January 28, 2004, in the Chicago Free Press.

So there are two questions many lesbians have been asking for the past couple of weeks:

1. "What do you think of The L Word ?" and
2. "Which woman turns you on?"

The answer to the first question is usually either "I love it" or "It's shallow but I watch it anyway."

The second question, however, seems to divide lesbians into three camps.

Shane, the "love-'em and leave-'em" bad girl played by Katherine Moenning either inspires intense lust or absolute hate. She seems to be favored by lesbians seeking danger.

Dana, the closeted tennis pro (Erin Daniels), is winning over sportsdykes. And Marina (Karina Lombard), the seducer of the innocent, straight Jenny (Mia Kirshner), is favored by - OK, I'm not sure who she's favored by. I just know that every time I gush over her, someone else does, too.

Think what this means. Someday all we'll need to do to find out if we're compatible with someone new is ask them which woman they like on The L Word and pray we're a fit. We could even gloss over the awkward pick-up-line chatter. Imagine walking into a coffee shop, seeing a cute girl, straightening your baseball cap and then querying, "Dana?"

If she responds, "Oh, I love her" you stay and chat.

If she shakes her head sadly and replies, "Shane," you know to move on-before you've slept with her and adopted two of her cats.

The L Word could change how we interact forever.

It's already had an impact. I've ever seen this much speculation and talk about lesbians in the mainstream press. Queer Eye is still the show that more straight folks are familiar with but I'm sure The L Word will develop a following. The straight women who've seen it with me enjoyed it.Also, I've seen three episodes. (I know you've only seen two. I have two words for you: review copies. I'm trying to keep myself from stealing a peek at the Episode Four but it's very, very hard).

This is what I have to say: Every week gets better.

No, there isn't much diverse representation. The L Word lesbians are all thin and femme, which might represent the girls in Los Angeles but certainly only applies to a small segment in Chicago.

And that first week it felt like we were watching lesbian porn designed for a straight audience. There was plenty of femme-on-femme lesbian sex for the men (there was even a potential three-way with a guy) and enough heterosexual sex thrown in to keep straight women happy.

It's not that lesbians didn't enjoy the sex. And it's good for a straight audience to see lesbians having good sex within the context of a relationship. It's just that the sex didn't seem meant for us and in a show about lesbians that was really disappointing.

But by Episode Two the show really is all about the characters. There's less forced novelty around the idea of being lesbians. Talk about "nipple confidence" and "vagina revitalization" has faded away. Instead The L Word focuses in on just a few stories, like any good ensemble show.

This leads me to think that there are many, many good things about The L Word. It helps a straight audience view our lives as ordinary, filled with similar heartbreaks and joys. It makes us seem cool and exotic instead of flannel-wearing and angry. It introduces the in-jokes of our community to the outside world-for example, gaydar, the U-Haul factor and the idea that lesbians date all their friends.

All this helps straight, cable-watching America understand us and understanding leads to a decrease in fear. Hopefully that decrease in fear will eventually lead to acceptance.

And there are other goods. The L Word is basically a primer for women who are just coming out. It does a pretty good job of explaining how we interact and why. Plus it's reassuring to those of us who've been out for a long time to see representations of ourselves that are chic instead of sad.

But the best thing about The L Word is that, so far, no one has been punished for being a lesbian - though Dana, the tennis pro seeking endorsements, may run into some trouble. Clearly we have made a quantum leap forward from the days of The Well of Loneliness and The Children's Hour.

No, wait.

The best thing about The L Word is that there are enough lesbians on the show to help straight people see that we're individuals. And to remind ourselves that even though we may have many things in common we should not stuff ourselves into stereotypical boxes because we're not actually all the same.

After all, there are Shane girls and there are Mariana girls.

First published January 27, 2004, in Res Gestae, a student-edited newspaper at the University of Michigan Law School.

At a recent lunchtime event on judicial nominations, a student prefaced his question by explaining that he was a member of the Federalist Society because he preferred judges "who interpret law rather than make law."

I don't know this student, so nothing here is intended personally. But I can't understand how someone can finish even a semester of law school and claim he can readily distinguish between "interpreting" the law (something, apparently, a card-carrying Federalist does) and "making" law (something activist liberal judges do).

Conservatives have gotten a lot of mileage with this idea. It appeals to non-lawyers who believe the proper role of judges is like turning a crank. You take the relevant inputs (facts, precedents, statutes, whatever), "apply" some law, and out pops objective, principled justice. A few more advances in Westlaw and we might not even need human judges.

Interestingly, when a controversial political or cultural issue is involved, the result this system is expected to produce almost always comports with the tastes, will, or prejudices of the majority.

But jurisprudence goes awry when "activist" judges sabotage the machinery by substituting their "arbitrary will" (President Bush's words in the State of Union) to achieve their own ideological ends. A sure sign this has happened is when the result supports the rights or aspirations of a political or cultural minority.

In short, many conservatives, full of phony populist indignation, tell a dishonest, oversimplified story to an ill-informed public. This provides cover for conservatives to appoint their own judges - many of whom are committed not to some tedious process of cranking the legal machinery, but rather to making law that reflects their policy preferences.

The mechanical conception of judges' work may be appropriate to trial courts, which are bound to apply law as they find it. Yet often what trial courts apply is common law - law that was made by other judges. The common law's enduring strength is its ability to evolve alongside human understanding and norms of behavior while gradually shedding outdated shibboleths.

Thus, one important role of appellate courts is to evaluate a law's rationality, workability, and constitutionality. This is not an inherently liberal or conservative enterprise.

Every student knows the law is full of open-ended questions. What did the legislature "intend?" Does text "bear the weight" of a given reading? Did the court below "abuse its discretion?" When is stare decisis inappropriate? What is "reasonable?" The idea that conservative judges aren't as capable or willing to manipulate these fudge factors as avidly and effectively as liberals sometimes do is the essential lie of the conservative legal movement.

Take one example: In the 1996 Hopwood case, the Fifth Circuit gave a major victory to conservative agitators and struck down affirmative action at the University of Texas, overthrowing longstanding legal, legislative, and social consensus. The arguments for doing so may or may not have been persuasive. But don't say this wasn't activism.

How about Justice Scalia's ongoing obsession with overturning the settled law of Roe v. Wade? Roe may well have been flawed as a matter of legal reasoning. But Scalia, a Federalist high priest whose "textualism" is often confused with judicial minimalism, has no interest in "interpreting" that decision. He wants to blow it up.

The Federalists can't have it both ways - grooving to every cranky Scalia eruption, yet publicly claiming to want more disinterested judicial drones, and all the while praying for the retirements of actual independent-minded moderates like O'Connor and Kennedy.

Recently the Massachusetts Supreme Judicial Court explained why denying the fundamental right of marriage to same-sex couples is unfair, no longer supported by persuasive reasoning, and a violation of the state's constitution. This obviously makes for major change in the law. Yet the court did not just issue an edict. Its opinion is there for all to read, and should stand or fall on its own accuracy, honesty, and rigor.

But I have yet to hear a conservative political or legal commentator engage the history, findings, or logic of the actual Massachusetts opinion. That isn't the stuff of sound bites. Conservatives seem content to let thugs like Bill O'Reilly - who simply smears any judge he disagrees with as an undemocratic radical - instruct the public on these matters. And so, many Americans confuse prejudice and sectarian dogma with legal reasoning.

The legal right needs to give up the conceit of its purity. Thoughtful conservatives and liberals have different visions of justice and social utility, and these visions will affect how they shape the law. We can only insist on judges whose work is clear, exacting, and intellectually honest - transparent to citizens, and persuasive to those who are trained to evaluate legal argument.

Meanwhile, law students should know better than to describe our vocation with slogans and simplifications.