IGF CultureWatch

Originally published September 24, 2003, in the Chicago Free Press.

If you found that you just about OD'ed on "gay" this past summer, think how the religious right must feel. Those 90 days were the gayest in U.S. history. A brief recap:

Canadian gay marriage (with significant U.S. impact). Supreme Court's "Lawrence" decision. Gay Anglican priest elected New Hampshire bishop after one appointed in England withdrew. Presidential aspirant Howard Dean promoted gay civil unions. California Gov. Gray Davis signed extensive gay partnership law. Congressional subcommittee hearings on Defense of Marriage Act.

"Queer Eye" was Bravo's "breakout hit of the summer." "Boy Meets Boy" had happy ending. "The Amazing Race" won by two gay men. "Will and Grace" still going and going. Ellen DeGeneres's talk show finally began. MSNBC's ranting rightist Michael Savage "let go" after he broke no-homophobia vow.

Is there anything to be learned from all this or any conclusions we should draw? Let us try a few possibilities. The most obvious single fact was the unparalleled gay visibility. Gay lives, gay relationships and evidence of the growing acceptance of gays in at least some sectors of society were given publicity as never before.

Most of the visibility was positive. The language of the "Lawrence" decision was a landmark of affirmation. Even the anti-gay congressional hearings managed to communicate that many gays and lesbians want to marry their partners, join the mainstream and be fellow citizens. Conservatives suddenly found that "special rights" rhetoric just didn't work since they were the ones with the special rights. (Negative publicity came mostly from the Catholic priest sex scandals, which gay advocacy groups handled poorly.)

All these advances did not just suddenly pop into existence. They were the result of years of preparation and constant painstaking advocacy, of numerous smaller advances here and there in the churches, the media, the law, the political system. They were the result of more than 30 years of gays and lesbians coming out, explaining and sharing their lives, talking to those with open ears and struggling to open the ears of those whose ears were closed.

Socially the U.S. is still a melting pot, though with an incompletely melted content. That is, it is also a nation of niches in which population groups with ethnic, social, business or religious interests in common may hold differing social views from other groups. This means that gays do not have to change the nation as a whole to make any gains. They can make gains in gay friendly niches - liberal churches, creative business sectors, the urban patriciate, liberal politicians - and build on those, using them as models or leverage with other niches.

The major religious and political gains gays have made are, not unexpectedly, in coastal, Democratic-leaning states, especially in New England. A New Hampshire Episcopal bishop. Pro-gay Vermont and Massachusetts presidential candidates. Massachusetts and New Jersey gay marriage lawsuits. The religious denominations friendliest to gays and lesbians are the Episcopalian, Unitarian and United Church of Christ, all with New England roots and strong New England influence, all inheriting the tradition of Yankee individualism and personal autonomy.

In other words, gays make gains most readily in the region where the demand for personal responsibility and a consequent respect for individual independence are most deeply rooted. That being so, those are social values we would be wise to help promote as the most fertile soil for future gay advancement elsewhere.

Despite all the rest going on, "Queer Eye" felt significant for several reasons. It did not have gay visibility, it had gay dominance - open, assertive, self-confident dominance. "We are the experts here." It was less that the "fab five" could be campy, even frivolous, than that they were helpful, friendly, knowledgeable, and at root sincere. To some people in this nation that still comes as surprising news about gays, and it is a message we must never tire of repeating.

It was also interesting to see how many companies were happy to see their products mentioned on "Queer Eye." Very mainstream Pier 1 was delighted to have the gay men shop on camera at Pier 1 and walk out carrying Pier 1 shopping bags. The company viewed them as a valuable endorsement with virtually no downside. Public aversion, at least by women, who constitute the vast majority of shoppers, is now judged largely absent, and religious right boycott threats must be viewed as entirely toothless.

Skeptics might argue that "Queer Eye" drew at most 3 million viewers, or 1.1 percent of Americans. Rebroadcasts on NBC reached no more than 5 percent. But, equally important, "Queer Eye" and the other gay-inclusive shows generated enormous amounts of print publicity. Many who did not watch the shows were exposed to their influence through the literally hundreds of articles about them that appeared in magazines and newspapers large and small. More people probably read about the shows than saw them.

Just as one swallow does not make a summer, one summer does not immanentize the gay eschaton. But it was a summer our gay predecessors would have longed for.

It's time to start marshaling our arguments against the Federal Marriage Amendment (FMA). The FMA, which has now been introduced in the House of Representatives, would define marriage in the United States as the union of one man and one woman. It would henceforth ban gay marriages (and other forms of legal recognition of gay couples) throughout the country - at least until the amendment could be repealed, something that has happened only once in more than two centuries of constitutional history. Passage of the FMA would set back the cause of gay marriage for perhaps 25-50 years, possibly for the lifetime of most people reading this column.

The theory of the FMA seems to be that the states must be saved from themselves, from their own legislatures, from their own courts, and from their own people, lest they formally recognize gay relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution should support this amendment. It is unnecessary, contrary to the structure of our federal system, anti-democratic in a peculiar way, and a form of overkill.

The central argument against the FMA is that allowing gay marriage would be a good thing, for gays and society. But here are four arguments against the FMA that even an opponent of gay marriage should be able to accept:

First, a constitutional amendment is unnecessary. It is a solution in search of a problem. No state in the union has yet recognized same-sex marriages. Even if and when a state court approved same-sex marriage in its own jurisdiction, that can and should be a matter for a state to resolve internally, through its own governmental processes, as in fact the states have been doing.

Supporters of the FMA argue that the Constitution's Full Faith and Credit Clause might be used to impose gay marriage on the country. That clause requires each state to give "full faith and credit" to the "public acts, records and judicial proceedings" of other states. But this clause has never been interpreted to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the state's public policy. Thirty-seven states have already declared it is their public policy not to recognize same-sex marriages.

It is also unlikely the Supreme Court or the federal appellate courts, for the foreseeable future, would declare a constitutional right to same-sex marriage. Lawrence v. Texas, the recent sodomy decision, does not change this. Lawrence involved the most private of acts (sexual conduct) in the most private of places (the home); by contrast, marriage is a public institution freighted with public meaning and significance. If I gave my first year constitutional law students an exam question asking them to distinguish Lawrence from a decision favoring same-sex marriage, I am very confident they could do so.

Moreover, if the Court were suddenly to order nationwide same-sex marriage it would be taking on the entire country, something it almost never does. We should not tamper with the Constitution to deal with hypothetical questions as if it were part of some national law school classroom.

Second, a constitutional amendment would be a radical intrusion on federalism. States have traditionally controlled their own family law. The nation's commitment to this federalism is enshrined in our Constitution's very structure.

But federalism is not valuable simply as a tradition. It has a practical benefit. It allows the states to experiment with public policies, to determine whether they work. That is happening right now. States are trying a variety of approaches to test whether encouraging stable same-sex unions is, on balance, a good or bad thing.

Repudiating our history, the FMA would prohibit state courts or even state legislatures from authorizing same-sex marriages. It might even prevent state courts from enforcing domestic partnership or civil union laws.

Third, the FMA would be peculiarly anti-democratic. Simple majority rule is the strong presumption of democracies. But, as conservative legal scholar Bruce Fein recently wrote,

"that presumption and its purposes would be defeated by the constitutional rigidity and finality of a no-same-sex-marriage amendment."

While all constitutional amendments constrain democratic politics, the FMA would mark the first time in the nation's history the Constitution was amended to limit democratic decisions designed to make the states more inclusive and more affirming of individual rights. The FMA reflects a deeply anti-democratic impulse, a fundamental distrust of normal political processes.

Fourth, the FMA is constitutional overkill. It is like hauling out a sledgehammer to kill a gnat. Even if I have been wrong about the imminent likelihood of a court-imposed gay marriage revolution, the FMA is not a carefully tailored response to that problem. A much narrower amendment, dealing only with preserving state's control on the issue, could be proposed. Even such a narrower amendment, however, would be unnecessary.

In sum, the FMA is not a response to any problem we currently have. Never before in the history of the country have we amended the Constitution in response to a threatened or actual state court decision. Never before have we adopted a constitutional amendment to limit the states' ability to control their own family law. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights. This is no time to start.

Originally published in the Chicago Free Press, September 17, 2003.

A funny thing happened on the way to the Federal Marriage Amendment.

At the Sept. 4 Senate subcommittee hearings on "What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?" (against gay marriage), none of the witnesses who opposed gay marriage made a coherent case against it. None even tried very hard.

Of six witnesses, only conservative columnist Maggie Gallagher and African-American pastor Rev. Ray Hammond attempted to address the substantive harms of gay marriage. But what they actually addressed was the importance of marriage in childrearing and the social costs of fatherlessness and unmarried motherhood. It is as if they believe that arguing for heterosexual marriage constitutes an argument against same-sex marriage.

To be sure, Hammond offered dire warnings about gay marriage "eras(ing) the legal roadmap to marriage and the family," as if heterosexuals won't know how to marry if gays can marry. And Gallagher opined that marriage is "the place where having children and creating families are actually encouraged," as if the goal were to encourage more married couples to have children.

"How can Bob and James' marriage possibly affect Rob and Sue's marriage?" Gallagher finally asks. And replies: "There are long, complicated and erudite answers to this question. Fortunately there is also a short simple and obvious answer. ... In endorsing same-sex marriage, law and government will thus be making a powerful statement: our government no longer believes children need mothers and fathers."

Children may well benefit from having a mother and father. If so, that is an argument against unwed motherhood and for forcing heterosexual child producers to marry (say, by reviving shotgun marriages or making a paternal DNA match constitute civil marriage to the mother) and for making divorce far more difficult.

In short, it is an argument about what heterosexual parents should do, not about gay couples who do not and by themselves cannot have children. In other words, Gallagher is saying she does not have time for a long argument against gay marriage, so she will give a short one about something else.

To quote James Thurber's story The Thirteen Clocks: "'If you can touch the clocks and never start them, you can start the clocks and never touch them. That's logic and I know and use it,' said the Golux."

Gallagher continues by claiming that legalizing same-sex marriage means the government would be saying that "Two fathers or two mothers are not only just as good as a mother and a father, they are just the same."

But Gallagher's "short, simple and obvious" answer is at best an argument against gay couples' adopting or rearing children from intact opposite sex couples, not one against marriage by two men or two women who want to merge their lives, care and provide for each other, and have access to the numerous means governments offer to promote that end. Marriage, Gallagher seems to forget, is not just about children. It is also about adults and their relation to each other.

But even if, other things being equal, opposite-sex parents are better than same-sex parents, other things are seldom equal in the real world where most of us live. Conservative polemicists seldom acknowledge the fact of neglected, rejected or abandoned children whose biological parents divorce, die, refuse to marry, are abusive or are incapable of caring for children. Such children often end up in orphanages, group homes or the poorly monitored foster-care system.

We live in an imperfect world of better and worse choices where the optimum is not always available. Are single parents better than no parents? Children obviously benefit from having parents who love and care for them. Most states acknowledge this by allowing single people, including gays and lesbians, to adopt or retain custody of children.

Are two parents, including same-sex parents, better than one? Two parents may provide a higher family income. Two parents have more time to provide attention, support and affection to their children. Children can see two equal adults cooperating together, negotiating their plans, discussing disagreements - exemplifying adult partnering, something children of single parents never see. So yes, two parents are better than one.

Do children benefit from their parents being married? Conservative insist that marriage provides financial and emotional security for children that parents who merely live together cannot provide. There is no reason to disagree. And that obviously applies to same-sex couples raising children as well as opposite sex couples, and for the same reasons.

In the final analysis, in an era of increasing gay visibility and gay awareness, gay marriage opponents - to the extent they are not merely religiously motivated bigots - need to ask themselves this: When they say they want to "protect" marriage by preventing gay marriage, which scenario do they imagine will incline young heterosexuals to take marriage more seriously - the increasing visibility of married gay couples, or the increasing visibility of unmarried gay couples living together and single gays living independently?

First published in The American Prospect online edition, September 8, 2003.

New York City's Harvey Milk School - believed to be the country's first public high school for gay, lesbian, bisexual and transgendered students - recently opened in an expanded incarnation after years as a small, two-classroom program. Whatever its educational merits, the school is the latest example of a dangerous and constitutionally troublesome trend: the rise of a parallel legal and civic universe for homosexuals.

On the surface, this parallel universe looks like progress. Pressed to give gays access to the benefits of marriage, Vermont responded in 2000 by creating civil unions. California and Hawaii now offer same-sex couples a form of registered domestic partnership, with some of the state-conferred rights and benefits of marriage. Other states are likely to follow.

Similarly, the Harvey Milk School is an attempt to redress the bullying and harassment that gay high-school students often face from their peers, as well as the indifference their situation generates from unsympathetic teachers and administrators.

But other aspects of this parallel universe are more grudging accommodation than substantive progress. Gays and lesbians are adopting children, yet they often need to go judge-shopping, either because state law makes adoption by same-sex couples difficult or because judges simply use their discretion to deny such requests. Meanwhile, the military's "don't ask, don't tell" policy allows gays and lesbians to serve their country but forces them to stay in the closet.

America is talking and arguing as never before about gay equality, and, as measured by public opinion, gays are winning many of these arguments. But visibility in the public square is not the same thing as legal parity. And the emerging parallel universe is actually denying gays the full rights of citizenship, forcing them to settle for a mere illusion of equality.

After all, civil-union and domestic-partnership arrangements have been politically palatable in part because they allow states to sidestep the issue of giving gays the same marriage rights as everyone else.

Alternative gay classrooms and schools, though well-intentioned, signal the failure of public schools to maintain safe, tolerant educational environments for all students.

In their quest to adopt, same-sex couples must search out friendly judges and jurisdictions, often far from home, adding an additional, gay-specific burden to an already difficult process.

And, of course, "don't ask, don't tell" enshrines hypocrisy, technically letting gays serve while allowing the Pentagon to avoid its real problem: the fact that military discipline, so effective in regulating other aspects of life in the armed forces, goes strangely soft when it comes to anti-gay harassment.

All of this would be much different if race or ethnicity were at issue. It's not just that military segregation and anti-miscegenation laws were abolished more than a generation ago. Under the strict judicial scrutiny that government-sponsored discrimination receives when racial or ethnic minorities are involved, there is simply no place for "separate but equal" legal and civic institutions.

In the last 50 years, the Supreme Court's jurisprudence on race has recognized government-sponsored discrimination for what it is - not a matter of a few outdated or ill-considered laws but a pervasive and historically rooted system of bias that once locked blacks into second-class citizenship. More recently, the justices have taken a similar approach to gender discrimination. The high court's broad application of the 14th Amendment's equal-protection clause now compels lower courts to automatically look with suspicion on policies that provide differential treatment based on race or gender. But not so with sexual orientation, because the judiciary refuses to connect the dots.

Gays thus occupy a unique position: No other minority group is the subject of as much public and political attention on so many fronts while remaining the target of as much blatant, government-sponsored discrimination - discrimination that the 14th Amendment, as interpreted and applied by the Supreme Court, seems impotent to address.

The Court's recent decisions on gays carry the rhetoric but not the mandate of true equality. In 1996, Romer v. Evans overturned a Colorado ballot initiative that imposed special political disadvantages on gays. This summer's ruling in Lawrence v. Texas struck down criminal penalties for homosexual behavior. Despite the importance of their specific holdings, both decisions shrank from declaring a broader constitutional standard of review for anti-gay discrimination.

Such a standard would put lower courts and lawmakers on notice that gays must be regarded as equal citizens in any sphere that government controls. It would also shift the burden to government to prove a compelling reason when it denies gays rights and responsibilities that other citizens take for granted.

For the most part, gays accept - indeed, encourage - their parallel universe in the name of incremental progress, and this is understandable. After all, civil unions and domestic partnerships are better than nothing. Too much fuss about adoption might lead to more pestering by social conservatives to ban gay adoption altogether. Recalling the torment they may have suffered at the hands of bullying classmates, many gay adults probably applaud the idea of separate classrooms or schools where gay students can have some semblance of a normal education.

When separate institutions are created for them, gays even appear to benefit from a sort of benign discrimination. After all, many straight couples might prefer a civil union or state-sanctioned domestic partnership over traditional marriage - and nerds, punks and Christian fundamentalists might prefer their own classrooms in the public schools. But not only is benign discrimination just as illiberal as invidious discrimination, it gives ammunition to those (like the New York state senator who has filed suit against the Harvey Milk School) who would employ the rhetoric of "special rights" and "reverse discrimination" to oppose gay equality.

Such benign discrimination almost resembles affirmative action, but it differs in one key respect: Affirmative action remains salutary because it helps channel minorities out of spatial segregation and into the civic mainstream. The gay parallel universe, by contrast, channels gays who are already in the spatial mainstream into legal and civic segregation.

The Constitution is the last place where Faustian bargains should be struck. So long as voting majorities continue to exercise their hegemony in order to maintain heterosexual supremacy in the public sphere, American jurisprudence must come to grips with reality and recognize gays as the sort of "discrete and insular minority" - to the borrow the words of one famous 14th Amendment decision - that the equal-protection clause has evolved to protect.

Courts would then have to apply heightened scrutiny to open doors for gays on equal terms to all government institutions and programs. And gays would have to resist settling for separate-but-equal treatment. Those who choose to formalize their relationships should have the option of equal marriage. Those who wish to serve their country should do so without hypocrisy. Those who want to adopt should be allowed to without winks, nods and hassles. And educators must work harder to ensure that gay students have the same educational opportunities as other students.

Of course the judiciary cannot by fiat make gays equal in the eyes of other citizens. Private discrimination is a different matter. But gays will not be equal in the eyes of their fellow Americans until they are equal in the eyes of their government.