IGF CultureWatch

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.

We are often told, especially by gay-left organizations and leaders, that we cannot go it alone. To achieve our political aims, we must form coalitions. What they do not tell us is that they seem willing to play down the most important objective of the movement - marriage - to avoid offending our coalition partners.

This latest bit of folly has come out of the recent 40th anniversary commemoration of the original 1963 black civil rights March on Washington. At that march, Dr. Martin Luther King, Jr., delivered his famous "I Have a Dream" speech.

The National Gay & Lesbian Task Force, the standard-bearer for the gay left, contributed money and personnel to the march. NGLTF's executive director, Matt Foreman, spoke to the rally on the steps of the Lincoln Memorial.

What did Foreman do with his unique opportunity to speak to our coalition allies? "On behalf of an incredibly diverse gay, lesbian, bisexual, and transgender community, " he opened, "I thank you for inviting us ... to walk with you on the road to jobs, peace and freedom." Foreman acknowledged "there are differences" between gay-rights and black civil-rights activists, but he did not say what they were. Instead, he passed over this unpleasantry by asserting that "what we agree on far outweighs our differences. "

As examples of agreement, Foreman cited support for "full equality" for "everyone, " opposition to "hate violence, " and support for "forceful and affirmative action" to end "racial oppression. " The first is so vague it says nothing. The second is an apparent reference to hate-crimes legislation, which will accomplish nothing of substance for gays. And the third is not a gay issue at all. So the areas of agreement among the civil rights groups offer gays little beyond warm words.

Foreman held up the example of the political right, who "know how to set aside their differences." They have mastered the art of using wedge issues, he said, to "fracture us. " He ended with a plea to "walk proudly together to defeat our common enemies. "

There was not one word in Foreman's platitudinous speech about gay marriage. Yet, after the elimination of sodomy laws, marriage is now the gay issue. He didn't need to harangue the crowd about it, but he needed at least to mention it.

It is obvious why Foreman left it out. Polls show that while Americans overall oppose same-sex marriage by perhaps 15-20 percentage points, black Americans oppose it by a margin of 65-28 percent.

Even among black leaders there is opposition and equivocation on gay marriage.

Even among black leaders there is opposition and equivocation on gay marriage. Martin Luther King III said recently that he wasn't sure how he felt about the issue because he works with gay leaders and "some of them have not formed an opinion on the issue of marriage." Oh yeah? Which ones?

Apparently, gay leaders on the left have given "our allies" a pass on this critical question. Is this the "wedge issue" that Foreman refuses to discuss with the progressive coalition because it might "fracture us"?

Even at a special mini-rally honoring Bayard Rustin, the now-deceased gay man who organized the 1963 march, gay equality seemed an afterthought. Rustin's role in the 1963 march was downplayed because of the homophobia of both black civil rights leaders and their racist opponents.

Frank Kameny, an early gay-rights pioneer who attended both the 1963 march and this year's commemoration, went to the mini-rally honoring Rustin. Kameny describes the people who marched to the event honoring Rustin as "a raggle-taggle gaggle of people advocating everything but gay issues - Cuba, [Howard] Dean, D.C. representation, Palestinians, Get Out of Iraq, and so on - but nothing gay."

NGLTF is right that we need political allies. Gays make up perhaps three to five percent of the population. But even if every last progressive in Congress voted our way, we'd still lose. For that reason, gay Republicans have been emphasizing the necessity of working for change within the Republican Party. A coalition of gays and fair-minded Republicans, if it ever materialized, could finally secure substantive equality.

But suppose a gay Republican stood before a Republican convention and gave the following speech:

"On behalf of an incredibly diverse gay community, I thank you for letting us walk with you on the road to low taxes, less regulation, and a strong defense. Sure, we disagree about some things. But we will set aside our differences with you because what we agree on far outweighs our differences. We all favor equality and oppose violence and think abortion is terrible. We will not let the left drive a wedge between you and us by discussing our differences or by trying to persuade you on them. It is critical right now that we think only of what we agree about and walk together proudly to defeat our common enemies. "

He would be hooted out of the gay movement for that speech, and rightly so. He would be called a traitor to the gay-rights cause. He would be excoriated for presuming to speak "on behalf of the gay community" in such an obsequious way. Yet with a few changes in wording (among other things, substitute "jobs, peace, and freedom" for "lower taxes, less regulation, and a strong defense"), that is the speech Foreman gave. Foreman's omissions and obfuscations are even less forgivable than that gay Republican's would be since Foreman was speaking to our putative friends.

Sometimes friendship means challenging your friends on the things that matter most. Instead, like Bayard Rustin four decades ago, what matters most is getting pushed into the closet.