Hypocrite of the Week.

by on

Democratic presidential contender John Kerry told the Washington Post: "I have a belief that marriage is for the purpose of procreation and it's between men and women."

Reality check: While Kerry has two daughters from a first marriage that ended in divorce, and his current wife, Teresa Heinz, has children from her prior marriage (she was widowed), Kerry and Heinz have failed to live up to their sacred obligation to procreate children together and thus validate what they refer to shame-facedly as their "marriage."

The Escalating Debate.

As we await a ruling from Massachusetts on whether the state must grant marriage benefits to same-sex couples (the anti-gay Family Research Council is already freaking out), it's clear that marriage will be the defining issue of the gay rights struggle for the years ahead. Given that most of the leading gay political groups have made lobbying for local, statewide, and federal anti-discrimination and hate crimes laws their highest priority while downplaying the marriage issue (with the noted exception of Lambda Legal Defense), this has required a fairly significant change of focus.

Gay groups were caught off-guard by the Defense of Marriage Act that Bill Clinton signed (allegedly after leading activists told him that marriage wasn't that big a deal). Can they manage to put together a credible effort to block the proposed anti-gay Federal Marriage Amendment, which requires a two-thirds majority in both the House and Senate before being sent to the states? Let's hope so.

Virginia Postrel, a libertarian writer, offers her take on the same-sex marriage debate. She asks, "Do we think it's a terrible thing for the law to break up loving couples? Or do we think that gay couples aren't real couples (or, perhaps, real people)?" Someone should ask John Kerry.

Several commentaries of late have been referencing David Boaz's argument to "privatize" marriage, published in Slate back in 1997 and well worth revisiting.

Syndicated columnist Deroy Murdock confronts Justice Antonin Scalia head on, making the "presumption of liberty" case that many libertarian-minded constitutional scholars share: that is, "The Constitution is no ceiling of liberties. It is a floor of freedoms." Murdock writes:

Social conservatives often demand to know where the Constitution enshrines freedoms they oppose. "

What if the elected city council of West Hollywood (a potentially majority-gay jurisdiction) prohibited heterosexual acts within city limits? Would Scalia -- support such a law provided a legislative majority approved and the mayor signed it? "

The rights to sodomize, fornicate and use sex toys can be assumed under the Ninth Amendment. Citizens need not scour the Constitution for a vibrator clause. Government must demonstrate why such a liberty should be curbed, namely to shield the lives, competing liberties or property of other citizens.

Clear enough?

Recent Postings

07/06/03 - 07/12/03

0 Comments

“Cultural Contradictions” on the Right.

by on

Andrew Sullivan argues that the proposed anti-gay marriage amendment isn't going anywhere. Aside from the hard-core religious right, he contends:

conservatives rightly view the Constitution as a sacred document to be messed with only very carefully. Many conservatives will oppose such an amendment on those grounds alone. They should. --

Wouldn't that be a wonderful use of conservative resources: going around the country actually trying to break up committed couples. And all under the pro-family banner!

For more evidence on the anti-gay, pro-family right's ideological confusion, check out the vignette below. It's a few weeks old, but I just came across this piece by the Washington Post's Hank Stuever on an "abstinence convention" in, of all places, Las Vegas:

Amy Stephens, a former Focus on the Family counselor from Colorado Springs, who now works full-time as an abstinence consultant, chipperly describes her enthusiasm for the movement's success in schools. When asked if the movement will ever teach gay teens to wait until they too can get married, she smiles, blinks twice, as if her brain reboots, then says she doesn't see how abstinence-only programs are going to be able to do that. "But isn't that an excellent question," she gushes, then proclaims: "Whew! I need a Starbucks!"

Eventually the rightwingers will have to confront their cultural contradictions, or they'll totally short circuit!

0 Comments

Defending the ‘Big Tent’.

by on

Former Wyoming senator Alan K. Simpson, who serves as the honorary chairman of the Republican Unity Coalition, spoke with Newsweek's online edition about gay Republicans, the religious right and the 2004 election, saying:

The difference between 10 years ago and today on the gay-lesbian issue in this country is an eon apart. And if we"ve moved this far in just 10 years, in the next 10 years it will be just as dramatic.

On Sen. Rick Santorum likening homosexuality to bigamy and incest., Simpson remarked: "I thought [those comments] were sad. I know Rick and I respect him, but I think that view was a little bit bizarre." And on Sen. Bill Frist calling for a constitutional amendment to ban same-sex marriages, Simpson said: "I don't think that's appropriate. I think that minimizes the Constitution." But is the party listening?

The Real Revolt Against the Constitution.

Conservative commentator and attorney Bruce Fein takes on Roy S. Moore, the chief justice of the Alabama Supreme Court, in the Washington Times for blatantly disregarding the Constitution. He writes that the fact Moore:

revels in seeking to unravel the rule of law shocks. And what multiplies the shock is the deafening Republican silence over Justice Moore's rebellion against the Constitution despite their characteristic celebration of law and order.

How bad is Moore? The Texas Triangle reports Moore's calling homosexuality "an inherent evil against which children must be protected." Guess this is Scalia's kind of justice.
--Stephen H. Miller

0 Comments

More Marriage-Go-Round.

by on

First, a celebratory moment as Michael Demmons, the DiscountBlogger, shares a photo and some thoughts on his wedding in Ottawa.

Now back to the culture wars. While Republicans face a problem catering to the anti-gays in their party without seeming so intolerant as to alienate the independents, the Democrats don't quite have it all figured out, either. As Deborah Orin writes in the New York Post:

Key Dems just don't want to, er, commit themselves and now Bill Clinton's office won't even say whether he still backs the "Defense of Marriage Act" he signed into law in 1996 - it says wedlock means a union between a man and a woman. Hillary (D-N.Y.) won't take a stand on the law her husband signed, nor will Sen. Chuck Schumer (D-N.Y.) even though he voted for it back in 1996.

And speaking of DOMA, this story from The Telegraph (in New Hampshire) reminds us that:

Of the five Democratic candidates [for president] then in Congress, three voted for the measure: Rep. Richard A. Gephardt of Missouri and Sens. Joe Lieberman of Connecticut and Bob Graham of Florida. Sen. John F. Kerry of Massachusetts opposed it, but said at the time he also was against same-sex marriage. --

When Democratic contenders roundly praised the Supreme Court ruling last week, the issue of gay marriage was conspicuously absent. Lieberman's statement was typical: "The court,"" he said, "moved us a step closer to giving gays and lesbians a full, fair place in our society."" But he did not say what the next step should be. A spokesman declined to elaborate.

Not exactly profiles in courage.

Sodomy Potpourri.

For the legally minded, the National Law Journal offers some in-depth analysis of the likely ramifications of the Lawrence decision.

By the way, it's not just gays who fell prey to sodomy laws. The Roanoke Times reports that:

For the past 5-1/2 years, Trey Gregory has lived the life of a convicted felon who is not in prison, yet not entirely free. He cannot vote. He must list his crime on job applications. He cannot buy a gun for his son because firearms are not allowed in the home of a felon. Gregory's crime? He and a woman engaged in consensual oral sex in the privacy of his home.

And they say "Virginia is for lovers!"

IGF contributing author Rick Rosendall wonders why some gays can't admit we're winning.

And columnist Larry Daughtrey in The Tennessean ponders what Bill Frist's recent outburst is all about when "The spokesman for the get-government-out-of-our-lives party wanted to get government into the bedroom, cutting off that bunch of known liberals at the Supreme Court before they legalize even more sodomy."

Meanwhile, Neil Steinberg's column in the Chicago Sun-Times only appears to be about James Joyce. Stay with it.

Recent Postings

07/06/03 - 07/12/03

0 Comments

Let’s Admit We’re Winning

by on

Originally published July 4, 2003, in The Washington Blade.

Inevitably, somebody had to rain on our victory parade, in the middle of Stonewall Sunday. I refer not to Senate Majority Leader Bill Frist, R-Tenn., who endorsed the Let's Blame Gays for Our Marital Problems Amendment, but to John Rechy, author of the landmark gay novel "City of Night."

In a commentary in the Los Angeles Times, Rechy praises the Supreme Court ruling in Lawrence v. Texas, but then immediately launches into a litany of all the discrimination and indignities and violence endured by gay people during the past thirty years. Refusing to celebrate our monumental victory without griping, he drags gloom and doom into the room like Snoopy sitting on the television set imitating a vulture.

"Without in any way belittling the decency of the justices in their brave opinion," Rechy says as he does it anyway, "some might view the decision as a vastly imperfect apology for the many lives devastated by cruel laws that made possible the myriad humiliations of gay people, the verbal assaults and screams of 'faggot!' - the muggings, the suicides, the murders...." Well, happy Pride to you, too!

Pardon me, Mr. Rechy, but the news on June 26 was so bad for right wing bigots that Strom Thurmond finally keeled over. As Paddy Chayefsky said to Vanessa Redgrave the night she ranted against "Zionist hoodlums" in accepting an Oscar, "a simple 'thank you' would have sufficed."

Rechy is not the only one among us who won't take yes for an answer. Earlier in June, at a State of the Movement confab in Washington, Matt Foreman of the National Gay and Lesbian Task Force talked as if we were about to be overrun by the radical right. He even discounted the anticipated victory on sodomy laws, saying that the mere removal of a negative was no big deal. Considering that people have lost their jobs and children over it, it's a very big deal, indeed.

As to the increasing apoplexy of the far right, black lesbian activist Mandy Carter got it exactly right when she replied to Foreman that the reason they are so upset is that they know we are winning. Maybe we'll get lucky when the Massachusetts Supreme Judicial Court issues its upcoming marriage ruling, and all the nutty fundamentalists will have a collective Rapture and be sucked into the void.

Pardon my irreverence, but I just got an email from Focus on the Family trying to sell me two videos challenging Darwin's theory of evolution, and I am thinking, Bush is afraid these guys will bolt the party? He should worry that they'll stay. It is hardly in his interest to have the culture war take center stage in his re-election effort.

It is high time that we acknowledge we are winning. This is not to say we have won, despite conservative columnist Jonah Goldberg having so declared. Of course our fight is not over. But as veteran gay activist Frank Kameny says, the tide of history is with us. At last the Supreme Court has upheld our right to liberty and to respect for our relationships. The implications are profound, which is precisely why the right-wing scapegoaters are up in arms.

In San Francisco on the day of the Lawrence ruling, members of a gay American Legion post took down the huge rainbow flag that flies over the Castro District and raised the Stars and Stripes. The only other time this was done was after 9/11, when Mark Bingham died among the heroes of Flight 93. We already knew that the flag flew for us too, but Justice Kennedy and his colleagues have made it official.

There may be no such intersection, but symbolically gay people are turning in growing numbers from Christopher Street onto Main Street. This does not mean that we are abandoning our gay identities, but simply that we are shedding our outsider status. Those who cherish the film noir appeal of cruising windowless bars in warehouse districts are free to indulge themselves. The rest of us can enjoy the sunshine.

As to the so-called "crime against Nature," given that the theocrats are impervious to the evidence and logic refuting this old slander, I can only quote the late Kate Hepburn in "The African Queen": "Nature, Mr. Alnutt, is what we are put in this world to rise above."

0 Comments

Liberty Weekend.

by on

As we approach the long Independence Day weekend, let's give a nod to Great Britain. Tony Blair's Labor government proposes to create a civil partnership register for same-sex couples, and Conservative leader Iain Duncan Smith has given his members of parliament a "free vote" on the matter, rather than whipping them into opposition. As one conservative MP writes in the Daily Telegraph, Tories must stop pretending that gay couples don't exist. Bill Frist take note.

Writing in the Washington Post, liberal Harold Meyerson takes aim at what he terms the Grand Old Gay Bashers,
but more thoughtfully than most Bush-bashers. He notes:

Of course, plenty of Republicans welcomed last week's decision (beginning, I suspect, with Vice President Cheney). -- Plenty of Republicans sicken at the hatreds expressed by their legislative leaders. But plenty or not, try to find a national Republican who speaks out for equality of sexual orientation or condemns the expressions of bias.

Let's see how big a hole Republicans are willing to dig themselves into, or whether they'll realize that appeals to fear and prejudice aren't going to be a winning strategy in the long run.

On the other hand, it was Bill Clinton who signed the Defense of Marriage Act and then bragged about it on radio spots airing in conservative markets.

The AP reports in a story headlined Bush: Gay Marriage Ban May Be Too Soon that the White House is pulling back from the support given to the anti-gay amendment by the Senate majority leader. A welcome development, if you're into reading tea leaves and making guesses about what's being talked about in the (real) West Wing.

Finally, Chicago Sun-Times columnist Mark Brown writes Gay marriage is in our future, like it or not. He opines:

Most people are still opposed to giving a same-sex couple the same legal rights as a marriage between a man and a woman, but those beliefs are evolving. It won't happen quickly, and if anyone tries to move too quickly, there will be a backlash. There already is a backlash. "

Even as I pulled my kids out of the Boy Scouts for discriminating against gays, I couldn't accept the concept of gay marriage. It was the gut reaction of a recovering homophobe. But as time keeps passing, I no longer see any reason to be afraid. Gay and lesbian couples already have loving partnerships that qualify as marriage by every standard other than the one we have codified into law. They deserve the legal protections the rest of expect from marriage as it relates to property rights, health care and other issues.

And that's how progress gets made, one pundit at a time. Happy 4th of July!

0 Comments

Springfield vs. Shelbyville.

by on

Johah Goldberg has an engaging piece at the National Review site titled Springfield vs. Shelbyville: Gay marriage, incest, and The Simpsons. In the end, he endorses a federalist approach -- don't bar states from recognizing gay marriages, but don't force them to recognize them, either, or risk a huge backlash that will reinvigorate the religious right. It's a compromise that Andrew Sullivan says he'd be happy to live with.

Past or Future?

A Reuters story, headlined "White House Mum on Amendment Banning Gay Marriage," reports President Bush has stopped short of endorsing the anti-gay Federal Marriage Amendment after Senate Majority Leader Bill Frist said he "absolutely" supports altering the Constitution to prevent states from recognizing same-sex marriages. In the words of White House spokesman Ari Fleischer:

"The president believes that marriage is an institution between a man and a woman," Fleischer told reporters. "We have a law on the books right now that ... passed with massive, overwhelming bipartisan majorities in 1996. The president supports that legislation and that's where he stands right now."

Who knows if this is a coordinated strategy to have Frist placate the religious right while Bush stands back, but it apparently signals that the prestige of the presidency won't be deployed to rewrite the Constitution to please the "wingnuts" (at least for now).

According to a USA Today/CNN/Gallup poll:
55% of American said same-sex marriages should NOT be recognized with the same rights as traditional marriages between a man and a woman, while 39% said they should be valid. When the same question was asked in March 1996, 68% said homosexual marriages should not be recognized by law, while 27% believed they should.

But significantly, 61% ofAmericans 18 to 29 years old said same-sex marriages should be valid. So tying the party to a constitutional amendment that cements a gay-marriage ban for the remainder of our lifetimes could push away the upcoming generation of voters that the GOP needs to attract. Once again, the choice is a politics of the past that appeals to the most reactionary forces in the GOP, or to embrace a future-directed politics built upon the foundation of individual liberty that we'll celebrate this July 4th weekend.

Safire's Sure-Fire Advice.

New York Times columnist William Safire, who has a conservative foreign policy bent but leans libertarian on social issues, writes:

Rather than wring our hands and cry "abomination!", believers in family values should take up the challenge and repair our own house. Why do too many Americans derogate as losers those parents who put family ahead of career, or smack their lips reading about celebrities who switch spouses for fun? Why do we turn to the government for succor, to movie porn and violence for sex and thrills, to the Internet for companionship, to the restaurant for Thanksgiving dinner -- when those functions are the ties that bind families?

I used to fret about same-sex marriage. Maybe competition from responsible gays would revive opposite-sex marriage.

Fair-minded former critics of letting us wed are starting to come around, and more will do so. Their support will be needed.

Whoa! Canada!

The Washington Post reports that Canada's recognizing same-sex marriages and decriminalizing small amounts of marijuana has some U.S. conservatives singing (to the tune of South Park's "Blame Canada" song):

"It seems like everything went wrong / Since Canada came along."

0 Comments

A Brief Guide to Lawrence

by on

First published July 2, 2003, in the Chicago Free Press.

It was closer than you think. Although the U.S. Supreme Court declared Texas' (and three other states') same-sex sodomy law unconstitutional by 6 to 3, it was by a narrower 5 to 4 majority that the Court declared the heterosexual-inclusive sodomy laws of nine other states unconstitutional and reversed the opprobrious 1986 Bowers v Hardwick decision upholding Georgia's sodomy law.

And the Court reversed Bowers only because Justice Anthony Kennedy, who had written an important gay-supportive, equal protection opinion in Romer v Evans, passed by his earlier argument, which would have been sufficient to strike down the Texas law, to reconsider Bowers, find it deficient in virtually every respect, and declare that Bowers failed to recognize - and the Texas law violated - a right to liberty inherent in the Due Process Clause of the 14th Amendment.

In sentences that will become famous, Kennedy wrote:

  • "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spacial and more transcendent dimension."
  • "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres."
  • "The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

Dissenting Justice Antonin Scalia, who is clearly the Vatican's man on the Supreme Court, ranted impotently and (since we won) amusingly about "homosexual sodomy," "homosexual activists," "the so-called homosexual agenda," and flamboyantly charged that "the court has taken sides in the culture war."

But Scalia, for all his repute for great legal learning, had nothing to offer by way of arguments except: a) a majority should have a right to force others to obey their moral rules no matter what, and b) allowing "homosexual sodomy" removes the only barrier to homosexual marriage. Is there a genuine state interest in criminalizing same-sex sodomy per se? Scalia offered none.

For the rest, Scalia's dissent consisted of ineffective counter-punching, evasions, misrepresentations, sophistry, sneers and dire predictions. There is an old lawyers' admonition that when you don't have the facts or the law on your side, bang on the table. What Scalia wrote was the judicial equivalent of banging his spoon on his high chair.

Legal reasoning aside, a careful reading of the opinions makes clear that the fundamental difference between the pro-gay majority and the anti-gay minority is the majority's willingness to acknowledge - and take legal account of - the fact that gays and lesbians are types of persons just as heterosexuals are and that sexual orientation is a core aspect of a person's being.

Justice O'Connor, whose concurring opinion, though limited to an equal protection argument, is the best argued and best written, explained the significance of this:

  • "Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by (the Texas law)."
  • "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class."
  • "The State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else with moral disapproval as the only asserted state interest for the law."

The difference in approach is signaled by the fact that Kennedy wrote of "homosexual persons," "homosexuals," and "persons who were homosexual." Similarly, O'Connor wrote of "homosexuals," "homosexual persons," "a same-sex sexual orientation," "being homosexual," and even (as above) "gay persons."

By contrast, Scalia wrote almost exclusively of acts: "homosexual sodomy," "homosexual conduct," "consensual sodomy," "homosexual acts," "homosexuality," "sodomy" and "those who engage in homosexual acts."

If the issue of sodomy laws is now settled, can we find anything in this decision for future litigation. Yes, indeed.

"Don't ask, don't tell" and the military's sodomy law are more vulnerable. If neither is quite unconstitutional on the basis of Kennedy's due process argument, they are arguably so under O'Connor's equal protection argument, which Kennedy declared "tenable."

Although O'Connor avoided discussing heterosexual-inclusive sodomy laws like the military's, her argument implies they too would be unconstitutional because of their disparate impact on gays and heterosexuals. Civilian deference to the military has its limits.

Kennedy was canny enough to draw attention to the possibility of gay marriage - without the red flag of naming it - and invite litigation by pointedly leaving the question open, referring to "a personal relationship that, whether or not entitled to formal recognition in the law...."

But the learned Scalia himself opined that O'Connor's reasoning on equal protection grounds "leaves on pretty shaky ground state laws limiting marriage to opposite-sex couples." However that may be, the Defense of Marriage Act is almost surely dead.

0 Comments

Republicans Must Decide.

by on

Yes, it's disappointing that Senate Majority Leader Bill Frist, in an effort to firm up the support of the religious-right bloc, has come out in favor of a proposed constitutional amendment to ban states from recognizing gay marriages. As I noted in yesterday's posting, so much for the right of states to pass their own legislation! It's unclear whether Frist and the Republican leadership genuinely intend to pursue such a divisive strategy, or whether it's just lip service. But it shows the GOP still believes it must kowtow to the most reactionary elements in America.

Of the six justices who voted to overturn the Texas law criminalizing sodomy, four were Republicans, appointed by Republican presidents. This is the other face of the GOP -- moderate, live-and-let live, opposed to government intrusion. At some point -- and it may well be the gay marriage fight -- it's possible the GOP coalition of the libertarian-minded and the religious-right theocrats will implode. Or maybe the theocratic faction will continue to decline as a bloc and the leadership will feel freer to ignore its threats. But abandoning the GOP to the "wingnuts," as some progressives argue, is just the kind of self-defeating politics that the left too often specializes in.

Addendum: The Federal Marriage Amendment was introduced in Congress by a bi-partisan group of co-sponsors, notes the Log Cabin Republicans, and "even liberal icons like Senator Ted Kennedy (D-MA) and Senator Hillary Rodham Clinton (D-NY) oppose gay marriage." True, but perhaps not the the degree of muddling up the Constitution (I hope!).

Changing Times.

A nice bit of analysis on why the Lawrence decision won't be a boon to the far right is provided by Jacob Levy over at The Volokh Conspiracy website. Surprise, the decision might even help the GOP since sodomy laws were:

the most absurd and embarrassing face of social-cultural conservatism -- absurd always, and embarrassingly for the past several years, and increasingly embarrassing as time went on. For social-cultural conservative Republicans to be able to appeal past their base, they couldn't defend the laws. For them to avoid alienating their base, they couldn't attack them. For social-cultural conservatism to avoid looking increasingly anachronistic and foolish, sodomy laws had to be taken off the table and the subject had to be changed to other fights.

Of course, it now appears that one of those "other fights" is gay marriage, and it won't be pretty.

Recent Postings

06/22/03 - 06/28/03

0 Comments

Set Him Free.

by on

For those who think sodomy laws never really hurt anyone, here's an example of how the Lawrence ruling is already making a different. As the Washington Post reports, the Supreme Court on Friday vacated the sodomy conviction of a Kansas teenager who received a 17-year sentence for having consensual sex with a younger teenage boy. Matthew R. Limon had just turned 18 when the relationship with a 14-year old took place. Had his partner been a girl, the sentence would have been no longer than 15 months under Kansas law -- which has a "Romeo and Juliet" exception for opposite-sex teens -- instead of the 17 years that Limon received.

Matt Limon has been in jail for two years. The ACLU is now asking the Kansas court simply to order his release and put an end to this miscarriage of justice.

Hypocrisy Alert.

Many conservative officials and groups denounced the Lawrence ruling as a violation of states' rights. For example, Virginia Attorney General Jerry Kilgore had this to say on the overturning of his state's sodomy law:

"I disagree with the ruling and am always disappointed when a court undermines Virginia's right to pass legislation that reflects the views and values of our citizens."

Right-wing organizations taking the states' rights line include (and thanks to IGF's Mike Airhart for this list and links): the American Family Association, Concerned Women for America, Exodus International,
the Family Research Council, and the Liberty Counsel.

But many of those who favor the right of states to pass laws criminalizing same-sex relations are already supporting (or expected to support) a proposed amendment to the U.S. Constitution that would bar all states from recognizing same-sex marriages, or perhaps even civil unions -- despite the will of a majority of the state's citizenry and the desire of the states' legislatures. So much for states' rights when the shoe is on the other foot!
Stephen H. Miller

0 Comments