IGF CultureWatch

First published in National Journal, July 26, 2003. Copyright © 2003 National Journal.

AS MY 3-YEAR-OLD NIECE likes to say: Calm down, everyone! On June 26, in Lawrence v. Texas, the Supreme Court ruled state sodomy laws unconstitutional. Only a few days earlier, Canada had effectively legalized same-sex marriage, and there were rumblings that the Massachusetts Supreme Court might do the same in that state. So, when the U.S. Supreme Court planted itself on the side of gay rights, something like hysteria ensued in the conservative commentariat.

In an inflammatory dissent, Justice Antonin Scalia accused the Court of undercutting not just sodomy laws but all morals legislation, including the ban on same-sex marriage. The Family Research Council, a prominent anti-gay lobby, said that Lawrence would cover not only choice of sexual partner but "choice of marital partner as well."

Within a few days, conservatives were saying not just that same-sex marriage might happen but that it was practically a done deal. Gay marriage, wrote Ramesh Ponnuru in National Review, is "not quite inevitable." In the same magazine's online edition, Maggie Gallagher, a conservative columnist, gave notice of the apocalypse. "We are poised to lose the gay-marriage battle badly," she said. "It means losing the marriage debate. It means losing limited government. It means losing American civilization."

As Scalia said in his Lawrence dissent: Do not believe it.

I support gay marriage. It would be good for homosexuals, good for heterosexuals, and good for the institution of marriage -- especially as compared with the alternative, which is the proliferation of "marriage lite" arrangements. If I could wave a magic wand and summon same-sex marriage into existence, I would do it. But I do not have a magic wand, and neither does the Supreme Court. Herewith, a reality check.

- The Supreme Court has not undercut all morals legislation. All it said is that if a legislature wants to intrude in a fundamental way on a core right, lawmakers have to give at least one better reason than just, "Because we disapprove."

All laws are built on morality, and should be. Murder and rape are illegal because they are wrong. But murder and rape are illegal not only because they are wrong. They violate the rights of others and cause personal and social harm. By contrast, there are lots of things I could do that are immoral but not illegal.

Texas, in Lawrence, offered no plausible rationale for arresting gay people other than the fact that the Legislature disapproved of gay sex. Well, West Hollywood, a heavily gay jurisdiction, could not arrest people for having heterosexual intercourse merely because a majority of the city council disapproved of heterosexual intercourse.

Gambling, prostitution, and pornography are economic transactions, with all kinds of implications for neighborhoods and communities. Incest opens the door to sexual predation within families. Polygamy undermines marriage by leaving less-desirable men short of partners. These days, criminal laws based solely on moral disapprobation are few. Sodomy laws happen to be among them.

Limits on the government's power to ban anything that it happens to deem immoral are not new. They go all the way back to John Locke. There are many ways to express disapproval without threatening people with arrest. The Supreme Court merely told Texas to go find one of them.

- The Court did not create a sweeping new right to privacy or anything else. All it said was, if the law already gives you the right to have an abortion in a hospital, then it certainly gives you the right to have sex in your own home.

In the 1986 case of Bowers v. Hardwick, the Court famously said that any claim of a constitutional right to sodomy must be "facetious." But that ruling, inasmuch as it allowed the arrest of people just for having sex at home, was at odds with more than 20 years of precedent. In Griswold v. Connecticut (1965), the Court said that banning contraception violated "the right of marital privacy." In Eisenstadt v. Baird (1972), it extended the same privacy rights to unmarried people. By letting single people use contraception, the Court gave them a constitutional right to have non-procreative sex -- which is exactly what Texas arrested John Geddes Lawrence and Tyron Garner for doing. Roe v. Wade, legalizing abortion, extended the privacy right still further.

Note the Court's language in Lawrence: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual" (italics added). Texas can restrict private conduct with a good reason, and it can unreasonably restrict conduct that isn't private. It just can't unreasonably restrict private conduct. The Court is not creating a new right; it is merely saying it wasn't kidding about an old one.

- The sodomy ruling won't lead to same-sex marriage. Despite what Scalia says, it's hard to see how it could.

The whole point of Lawrence is to curtail an unwarranted state intrusion into private conduct. You don't need a blood test and a government license to have sex at home. By contrast, the whole point of state-sanctioned marriage is that it is public. I can hold a private commitment ceremony without any fear of arrest, but of course what I won't have is a marriage license.

No doubt someone will bring a lawsuit demanding that the Supreme Court find a constitutional right for gay people, like straight people, to wed a partner of their choice. But this would not be a privacy suit. It would be an equal-protection suit, saying that states should not discriminate in the granting of marriage licenses.

Discrimination law is not like privacy law. Because gays are not what federal law calls a "suspect class," the government is perfectly free to discriminate against them if it has a "rational basis" for doing so. After Lawrence, a state can no longer cite the illegality of gay sex as its reason to forbid gay marriage. But the "rational basis" standard is a very permissive one -- almost any public-policy rationale will do -- and states will not be short of arguments as to why same-sex marriage does not serve the public interest.

Is it possible that a conservative Supreme Court might invade the inner sanctum of states' rights (marriage law has been within the states' purview since colonial times) in order to ram same-sex marriage down the throat of an unwilling public? Yes, and monkeys might fly out of my posterior.

In any case, a lawsuit challenging marriage-license discrimination would be decided on its own merits and under its own branch of the law. The sodomy case would have little or nothing to do with it.

- Massachusetts can't impose same-sex marriage on all of America. For that matter, neither can Canada.

No state is obliged to recognize any foreign marriage. The marriage of an 11-year-old Pakistani girl will cut no ice in Michigan. Nor is any state obliged to recognize out-of-state marriages.

It is true that the Constitution's "full faith and credit" clause requires states to recognize each other's laws and judgments. "However," notes Dale Carpenter, a constitutional law professor at the University of Minnesota, "the full faith and credit clause has never been interpreted to mean that every state must recognize every marriage performed in every other state. Every state reserves the right to refuse to recognize a marriage performed in another state if that marriage would violate the state's public policy."

This "public-policy exception" is well established. Another lawyer I consulted said, "I have not found a single case where a federal court has forced another state to recognize a marriage where the state asserts that said marriage would violate the public policy of the state." Moreover, he notes that many states have "evasion statutes" that forbid going out of state to enter into a marriage that would be prohibited in state. "None of these provisions," he said, "have been struck down under full faith and credit." Moreover, Congress has passed a federal law reiterating that no state need recognize an out-of-state gay marriage.

So, might a conservative Supreme Court overturn all of those precedents and laws and trample on states' rights in order to impose Massachusetts's same-sex marriages on 49 other states? See "monkeys flying out of my posterior," above.

Stirring up a gay-marriage panic serves the interests of activists who support a federal constitutional amendment banning same-sex marriage. But decisions made in a panic are seldom wise. With its federalist structure, the United States is uniquely positioned to settle gay marriage the right way: at the state level. Without either a national ban or a national mandate, each state is free to go its own way, acting as a distinct moral community. Domestic law is best left to the people who are, literally, closest to home.

Copyright © 2003 National Journal. Reproduction in whole or in part requires prior written permission.

First published July 23, 2003, in the Chicago Free Press.

Northwestern University psychologist J. Michael Bailey's recent book "The Man Who Would Be Queen" has been criticized by transsexual advocacy groups. But most of Bailey's book is about gay men and that part of his book should have received far more critical attention than it has.

Bailey primary claim is that the link between femininity and homosexuality is well-established: "My research demonstrates a large degree of femininity in gay men." And Bailey thinks this gay femininity is rooted in the brain. Gay men's brains are a mosaic of male and female parts, he says.

For example, Bailey says, gay men were feminine in childhood. They move in feminine ways, have feminine voices (a "gay accent") and tend to be feminine in their sex roles. They have feminine interests-show tunes, decorating, fashion, dancing. They have more psychological problems than heterosexual men such as depression and anxiety, just as women do.

These are long-familiar stereotypes about gay men. But Bailey claims the stereotypes are true and true of most gay men. No doubt some gay men fit part of the stereotype, but the problem with stereotypes is that believing them causes people to overlook gays who do not fit the stereotypes, even if they are far more numerous. Such people think there are few gays.

Thus although Bailey vacillates about the proportion of men who are gay, he finds 2 percent or even "at least 1 percent" plausible estimates. Yet avowed gays are at least 4 percent of voter turnout. And the 1992 National Health and Social Life Survey found that in large cities such as Chicago where Bailey lives more than 9 percent of men identify as gay or bisexual. (Bailey himself thinks most "bisexual" men are gay.)

The problems with Bailey's use of stereotypes of gay femininity to support his notion of gay men's feminized brains are that a) they are based on exaggerated notion of gender dichotomy, and b) there are very plausible non-biological explanation for the instances of stereotyped behavior Bailey mentions.

Gay men may not feel more depression and anxiety than heterosexual men, though they may be more willing to label and acknowledge those feelings. But gays obviously face additional stress growing up and living in a potential hostile environment, so anxiety could be a valid response.

Most of our speech patterns and body language are learned behavior, differing from culture to culture, rather than brain regulated. Thus Americans think Frenchmen act gay. And much of "gay" gesture and affectation are social performance. Kinsey noted that most gay men can drop them readily.

Gay men who enjoy receptive anal sex probably do so not because they feel feminine but because their prostate gland is stimulated that way. Nor does Bailey trouble himself about "tops," or men who enjoy both receptive and insertive sex, or men who do not engage in anal sex at all.

Bailey sometimes acknowledges these alternative explanations, but even when he agrees they are plausible, he dismisses them with little argument.

Bailey's view that gay men were feminine boys is based largely on some gay men's recollections. But retrospective memories are unreliable: most people recall the things that fit the prevailing cultural view. In a culture suffused with notions of gay femininity, gay men likely recall more feminine behavior (and heterosexual men less) than was actually the case.

And like most heterosexual researchers, Bailey views team sports as the distinctive masculine activity. He assumes a false dichotomy of either playing those sports or being feminine. But gay youths who did not enjoy those sports need not have been feminine, though some may have internalized that interpretation.

Boys may have preferred individual sports-running, swimming, diving, gymnastics. Or they might have enjoyed entirely different activities. I remember as a young child, bike riding, climbing trees, making castles and forts out of blocks, playing cowboys and Indians, creating marionette shows, building dams and canals in a creek, playing with our dog, playing Monopoly, writing a little newspaper, listening to a lot of classical music, writing stories, collecting stamps and coins, reading books on astronomy, science fiction and news magazines.

Basically, Bailey tries to update and biologize the hoary psychological theory that gays suffer from faulty gender identity. But Bailey's view, like the older one, dies the death of a thousand cuts and counter-examples.

When did Bailey go wrong? First, he believes simple-minded, lower social class notions of exaggerated gender dichotomy. Second, although he is unforthcoming about his methods in this book, his past methods of gathering research subjects or data (e.g., ads in gay newspapers) seemed to skew his results without his realizing how they might be systematically unrepresentative. Third, Bailey over-interprets his findings and those of people he agrees with.

Fourth, Bailey's view of gay men seems shaped particularly by visits to gay dance bars in Chicago. But the generally younger, single gay men at dance bars are hardly typical of all gay men in Chicago's gay enclave, much less those living elsewhere. Fifth, Bailey seems remarkably un-self-critical, reluctant to look for, acknowledge or discuss problems or inadequacies in his intuitions, hypotheses, methods or findings.

Originally appeared July 23, 2003, in the Chicago Free Press.

Some people have a problem with Bravo's new television show "Queer Eye for the Straight Guy."

Some commentators think that it only pushes the gay community back into stereotype - that it's labeling gay men as fluffy and shallow, interested only in surface and not in substance.

I can see why they're worried. But I saw the first two episodes during the show's premiere last week. And I loved them.

In fact, I think "Queer Eye for the Straight Guy" might be one of the best shows for our community in a long time.

In "Queer Eye," the five gay experts make over a skanky straight guy into someone of whom women will approve. Every week there is a mission: in the first episode, it was preparing the aptly nicknamed Butch for his first art opening. In the second, it was throwing a birthday party for Adam's neglected wife.

The gay team works together. Kyan Douglas is the "grooming guru." Ted Allen (a former senior editor for Chicago magazine who is now a contributing editor to Esquire) is in charge of refining a guy's sense of food and wine and helping him learn to make appetizers. Carson Kressley is the flaming fashionista. Jai Rodriguez is the culture cutie, who also teaches the finer points of socializing. And Thom Filicia makes a straight guy's pad look like it was designed by‹well, a gay guy.

At the start of each episode, the "Fab Five" scream up in their black SUV. They explode into the straight guy's home, making catty (and very funny) comments about everything from the guy's decorating style to his facial hair (Adam had a monobrow) to his underwear. That part's pretty intimidating.

But then, an amazing thing happens. The straight guy bonds with the gay guys. And we watch it happen. By the end, there's often a round of hugging. At the end of the second episode, straight guy Adam looks around his newly done house with tears in his eyes. He fingers his beautiful new suit. "My house is your house," he says mistily.

And the audience is not surprised at this, because except for the initial rampage, the five experts are startlingly kind and insightful.

They don't throw out Adam's beloved hockey jerseys, though they get rid of nearly everything else in his closet. They don't make Butch wear anything too fashionable or feminine. In short, they're not trying to make the straight guys over into gay guys - they're just trying to help the straight guys understand that it's all right to want to look attractive and live in a nice home.

The subtext seems to be that taking care of oneself and one's surroundings doesn't make a man less masculine. It doesn't make him more - well, gay. It just makes him more happily himself.

As Carson says cheerfully to Butch, "We're not trying to change you - we're trying to make you better."

And they do this first by making style decisions that fit the straight guinea pig's personality and then by cheering him on as he hesitantly makes changes. They shower him with the kind of warm approval straight men rarely get from other men, telling him how great he's doing and how handsome he looks.

Everyone should have such supportive fairy godmothers. But there's another factor that makes the show a success for our community.

The straight men are well screened (or the show is well edited) and so the straight men come across as very, very comfortable with the gay men.

This is vital, because these five men are not the straight-acting, straight appearing kind of gay men. They are not assimilated. They are GAY, honey. Carson in particular is over the top. He jokes about getting into Butch's underwear. He jokes about helping out in the shower. He offers to unbutton Butch's pants to help tuck in his shirt.

In other words, he's hitting on them, which is what straight men seem to fear most about gay guys.

But instead of punching him in response, the straight men play it cool. They joke back or turn the comment aside or ignore it. In other words, they act mature about it. And by doing this, they broadcast the clear message that being hit on by a gay man is OK. It's not the precursor to violence. It's just flattering conversation.

And those are the moments that might help turn the culture around for us. Because straight men aren't afraid of gay men who look and act like them - they think of those kinds of gay men as exceptions. They're afraid of the gay men who are gaily gay, the kind who strut their stuff in Pride Parades, who haunt dark bars and public bathrooms, and who swish around on TV.

So Bravo is doing us all a public service. Because by giving us weekly examples of the differences between gay men and straight men - and by making gay men seem not only unthreatening but downright helpful - Bravo is showing America that we really all can get along.

It's a shame trees had to be sacrificed in order to print J. Michael Bailey's controversial new book "The Man Who Would Be Queen: The Science of Gender-Bending and Transsexualism."

Bailey takes a perfectly interesting and reasonable question - what is the relationship between childhood femininity in boys and gay men, and transgenderism - and succeeds only in writing a bunch of speculative and insulting nonsense.

Don't be fooled by the "science" in the title: There is very little science in this book. It's not science calling up a two-decades-old research study and declaring it the truth for all time. It's not science without documentation - there are no footnotes, no references listed and no bibliography.

It's not science sitting at a bar in Chicago's gay neighborhood of Boystown talking to gay men and transgenders about their childhoods. It's not science when someone answers your questions and you don't like the answers or don't believe them, so you dismiss the insight as lies, or internalized "femiphobia."

It's not science when you write pages about what "perfect" studies would need to be conducted to prove your wanted findings, and then write that, of course, these studies could never be done because of their length and complexity.

It's not science to simply quote small studies and surveys with no context. It's not science taking an 8-year-old boy's cross-dressing issue and basing an entire book on the question of what he may or may not become later in life. And it's not science or scholarship to praise your son's ability to spot gay men on the street. It's not science to base your knowledge of transgender and gay lives on what they say they are seeking in personal ads.

This book is not science. A discussion of ideas, yes. One straight man's look into an unfamiliar world, yes. Science, absolutely not.

Bailey's thesis is that there is a connection between femininity in boys and gay men and the desire to change gender. In investigating this he takes a long detour through covering gay masculinity and femininity, stereotypes of gay men and whether gay men are actually more like straight men or women.

Then he declares there are exactly two types of transgenders: homosexual and autogynephile. The former are men who want to change gender because they identify as women and the latter are men who are erotically charged by switching gender. In his limited exploration, Bailey paints an ugly picture of transgenders' alleged sexual perversity, confusion and relationships. And he makes no effort to consider transgenders who carry on "normal" jobs, friendships, sexual desires, lives, etc.

While the argument Bailey makes is pretty bad, the writing and organization of the book aren't much better. He never adequately connects the several different strands he's weaving into a cohesive whole theory. And his personal anecdotes are annoying, not to mention credibility-busting.

This book is not worth reading, even for the controversy. You'd learn a lot more reaching out to someone in the trans community and having a friendly and honest discussion with them about their lives than reading this ridiculous concoction of speculation.

What's also mystifying is that some reputable authors (Steven Pinker, Anne Lawrence) and literary establishments (Kirkus Reviews, Publisher's Weekly, Out magazine) gave the book positive quotes, since it doesn't take much analytical ability to slice through Bailey's arguments, speculations and assumptions. Also confusing is how an author of Bailey's apparently reputable credentials can get away with a shoddy publication like this. He is a professor of psychology at Northwestern University, has written for The New York Times and is a well-known sex researcher.

Wisely and appropriately, the National Transgender Advocacy Coalition has called for the National Academy of Science to investigate the book and remove it from under its banner.

First published July 16, 2003, in the Chicago Free Press.

It is time to begin thinking about what state recognition of gay (civil) marriage means for us, how it will affect our lives and self-concepts, our relationships and our relation to the larger society. The changes will be numerous and profound. Some possibilities:

I suspect that only a few couples will marry right away - mostly older, established couples who will see this as something they have long deserved. More lesbians will probably seize the early opportunity since young women are still socialized to regard marriage as an achievement and the best way to have a relationship.

Most of us will probably hang back a while to watch what happens with the people who do marry. Does it go well for them? Does marriage enhance their lives? Is it confining or liberating in unexpected ways? After a year, are they happy they married or was it a mistake? What sort of unexpected problems do they encounter?

Couples who marry will likely feel more closely bonded together than they did. Even those who thought they didn't need "the piece of paper" will be surprised by how much more real their relationship feels and how much more seriously they are regarded by other people, gays and heterosexuals both.

Married couples may be surprised at how much more comfortable they feel kissing, hugging, and holding hands in public. "We're married" is a pretty good justification in the world's eyes, and that is shorthand for "We are just as married as you are."

Couples who marry will find themselves making extra effort to preserve their marriages through times of adversity and crisis. Divorce can have complications, pains and costs. And what will the people who attended the ceremony and heard those commitment vows say? That the couple gave up too easily? That they weren't fully committed? That they were a failure somehow?

The fact of gay marriage will not much reduce urban gay male promiscuity - at least not right away and not by younger single men. Those men will still trick, have regular play-buddies and anonymous sex; after all, single urban heterosexual men try to pursue active sex lives too.

But I suspect that many young gay men (and a few old roués) will feel threatened, fearing that somehow the basis of their active sex life is in jeopardy: That the pool of available tricks will diminish or that every trick or date is now has the unwelcome potential to develop into something that from the outside looks confining.

Like the process theologian's god, by its sheer existence marriage lures, it beckons, it calls, it invites, it attracts, it welcomes. Marriage adds a final stage, a "telos," a kind of completion to a relationship that has heretofore not been available for gay relationships.

Parents, relatives, and heterosexual friends will add their voices too. They will begin taking a greater interest in our romantic relationships, as they now do those of heterosexuals. Unmarried gays and lesbians will more often be asked, "Are you seeing anyone?" "Is it serious?" "Have you set a date?" Or more insistently, "If you really loved each other you'd get married, you know."

Those pressures will be mild and easily resistible, but coupled gays who have no plans to marry will need to develop - or borrow from similarly situated heterosexuals - pleasant, non-defensive ways of fending off such questions and advice: "We are happy with the way we are, thank you." "If we make a change, we'll be sure to let you know." "Our lives seem to work best this way."

No doubt, in part, heterosexuals simply want to have their own choices validated by seeing others make the same choices. But for most heterosexuals a good marriage still represents a desirable goal and source of happiness that they hope their gay children and friends will find as well. Try not to resent their new intrusiveness; try to see it as a sign of inclusion and acceptance.

But a cautionary note (and this is Uncle Paul speaking now): Some young gays may hasten into marriage before they are ready, partly because it is there and partly because it looks like a refuge from the unstructured flux and rootlessness of the urban gay social world.

Young gay men seem to combine cynicism and romanticism in an unhealthy mix: too cynical about the world around them, but too romantic about themselves and the man of the moment. They need to acquire a good deal of relationship experience before they are able distinguish infatuation from love or even think about marriage.

Young lesbians may be especially tempted into premature marriages. The psychological need for pair bonding seems to be strong in most women - they are the ones who typically press boyfriends for marriage - and the combined bonding desires of two women may overwhelm them long before they can know they are suited to each other. The old joke about the moving van rolling up right after the first date has some psychological truth to it.

"Marry in haste," goes the old adage, "repent at leisure."