IGF CultureWatch

The defense brief filed by the Lambda Legal Defense and Education Fund, as counsel in Lawrence v. Texas (the anti-sodomy law case now before the U.S. Supreme Court) is online. While I haven't studied the brief in detail, I"m extremely disappointed to see that Roe v. Wade was cited in three instances as a precedent. No, it's not the heart of Lambda's argument, but it's certainly sure to rankle the conservatives.

Sixteen years ago in Bowers v. Hardwick, a sodomy law case not argued by Lambda (as I previously misstated), a Supreme Court whose majority no longer considered Roe's "privacy rights" argument to be persuasive voted to uphold sodomy laws. Roe's stature has only declined since. Citing it is something you"d expect of liberal attorneys who would rather uphold the pro-abortion party line than try to win over the swing conservatives. As described below, let's hope the amicus briefs filed by the Cato Institute, the Institute for Justice, the Liberty Education Forum, and the Republican Unity Coalition can undo some of the damage.

The Lawrence case now before the U.S. Supreme Court focuses on the constitutionality of the Texas Homosexual Conduct Law -- which criminalizes consensual same-sex sodomy, even when conducted in the privacy of one's home. Amicus briefs have now been filed, and the Court will hear oral arguments on the sodomy case (find the joke) on March 26.

A brief filed by the libertarian Cato Institute argues that the Texas statute violates the three main provisions of the 14th amendment: the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause:

"By singling out only homosexual sodomy," said Roger Pilon, Cato's vice president for legal affairs, "the Texas law is in clear violation of the Equal Protection Clause. But our brief goes further in asking the Court to overturn Bowers v. Hardwick, the 1986 decision that upheld, under the Due Process Clause, a Georgia statute that criminalized homosexual conduct. That decision is flatly inconsistent with the Court's due process decision a decade later in Romer v. Evans."

As an alternative, Cato's brief also asks the Court to revisit the long-ignored Privileges or Immunities Clause, which was meant by the framers of the 14th Amendment to be the principal safeguard for liberty against state actions. "The time has come," said Pilon, "to revive the first principles of the 14th Amendment.

The Institute for Justice, a highly regarded libertarian public interest law firm, also filed an amicus brief, arguing the law exceeds any legitimate government power. Bob Freedman, an attorney with the Institute, said:

"Every major political theorist agrees that there must be limits on the government's power. Our Founders believed that individuals should be largely free to pursue their own lives without government intervention. This law runs counter to our entire philosophical and constitutional tradition."

These briefs, and those filed separately by the Republican Unity Coalition and by the Liberty Education Forum (not yet available online), make arguments designed to appeal to Justices to the right of center -- the swing votes needed to win the case. Briefs arguing along more traditional liberal lines, premised on the abortion decision in Roe v. Wade that is anathema to these very Justices, were filed by liberal groups.

Judging the Judge.

President Bush has renominated Mississippi Judge Charles Pickering to the 5th Circuit Court of Appeals. The Human Rights Campaign, the big Washington-based lesbigay lobby, has joined with the National Organization for Women and other liberal activist groups in strongly opposing the re-nomination. "Pickering's career has been punctuated by racial divisiveness, and he also has publicly shared anti-gay sentiments," says HRC.

But last March, when Pickering was originally nominated, the Log Cabin Republicans issued a pro-Pickering statement noting that:

In 1991, Pickering sharply rebuked an attorney who tried to use a plaintiff's homosexuality in a fraud trial. "Homosexuals are as much entitled to be protected from fraud as any other human beings," Pickering instructed the jury. "The fact that the alleged victims in this case are homosexuals shall not affect your verdict in any way whatsoever."

In 1994, an anti-gay citizens group in the town of Ovett, Mississippi launched a crusade of intimidation and threats to drive out Camp Sister Spirit, a lesbian community being built by a lesbian couple. When the group took Camp Sister Spirit to court, Judge Pickering threw their case out. This case was featured in Judge Pickering's testimony before the Senate Judiciary Committee.

Aruged LCR's then-head Rich Tafel:

"I have spoken with Judge Pickering at length, and have reviewed his record and consulted with several people around the country. Judge Pickering reiterated to me his strong belief that all Americans should be treated equally under the law, including gay and lesbian Americans, and his record as a federal judge clearly demonstrates it."

One suspects that because Judge Picking is not a liberal jurist favoring expansive government, HRC has concluded he's a racist homophobe.

Sullivan on Rustin.

If you didn't see it, last week's Time magazine had a nice piece by Andrew Sullivan titled The Invisible Man, on the legacy of the late civil rights activist Bayard Rustin, the openly gay organizer of the famous 1963 civil rights March on Washington (wherein Dr. Martin Luther King proclaimed his dream of a society where individuals would "not be judged by the color of their skin but by the content of their character"). That's a thought to consider as the constitutionality of government-decreed race-based preferences comes back before the Supreme Court.
--Stephen H. Miller

Henry Scott, a former publisher of Out magazine, takes strong exception to a Cuban excursion being organized by New York's Empire State Pride Agenda (ESPA). Scott's piece is titled Cuba Libre? Guess Again and runs in the current issue of Gay City News. He describes an ESPA flyer announcing the trip, which reads: "We thought it would be nice to get out of the city, especially now that it's so cold. Somewhere exciting and warm, somewhere unusual and exotic, not too far" We decided to go to Cuba!" Responds Scott:

Perhaps [the] visitors from ESPA will turn up information about gay freedom in that nation that has eluded the diligent investigators of Amnesty International and Human Rights Watch. Maybe they'll even be inspired to put down their Cohibas and Cuba Libres and risk a night in a squalid Havana prison by making a public stand for lesbian and gay civil liberties on the Malecon. But what's more likely is that the group's winter break on the beaches of this oppressed black and Latin nation will feed the perception that ESPA stands for "Empire State Party Agenda." "

On the other hand, maybe ESPA will see the myopia in believing its responsibility to promote lesbian and gay civil liberties ends at the borders of the Empire State. A public announcement that it is canceling the Cuba trip, with an explanation why, would go a long way to restoring the pride in the Empire State Pride Agenda.

For its part, ESPA claims it will be reaching out to Cuban gays during the trip. While that could be positive, it would be more effective if ESPA and other gay activist groups took a firmer stand against communism and the suffering it brings to all who must live under its totalitarian yoke.

More on how gay cachet can revitalize deteriorating neighborhoods -- and possibly cities, via the Boston Globe (but about Detroit and its 'burbs):

Since the riots of 1967, Detroit has tried several strategies to revitalize its downtown, including riverfront development and a new mass transit system. City leaders continue to hope that General Motors' move downtown in 1996 will bolster the city's comeback.

Now, some leaders are hoping that an influx of gay residents will help revitalize Detroit. Though the idea is buttressed by a growing body of research, the notion comes as a surprise, given the city's often prickly relationship with the gay community.

Don't tell the anti-gentrifiers!
--Stephen H. Miller

Employers demonstrate a tendency not to grant interviews to applicants with black-sounding names, as compared with equally qualified applicants with white-sounding names, according to a new survey. Researchers sent out some 5,000 bogus resumes for both hypothetical "white" named and "black" named applicants in response to newspaper ads in Boston and Chicago. The result: Resumes with white-sounding names elicited 50% more responses than ones with black-sounding names.

It's clear that discrimination lives, but it's also worth asking if something else is afoot. African-American employees, as members of a protected class under the civil rights laws, can threaten to bring racial discrimination suits if they are fired or not promoted. Whether a suit is groundless or not, business insurers almost always urge employers to settle out of court since legal costs are so exorbitant (and negative publicity is best avoided, in any event).

Given this situation, many employers have come to believe that, all things being equal, it's best not to hire more minority applicants than is necessary to avoid scrutiny, or even grant unnecessary interviews (since if interviewed, but not hired, a premise for a civil rights suit has still been established). Employers will not speak publicly about this, but many, in private, more than hint this is the case.

Isn't this at least worth acknowledging as we debate the value of a national workplace anti-discrimination law making gays and lesbians a protected class? The proposed federal Employee Non-Discrimination Act (ENDA) is the prime goal of the big, national, gay political lobbies, and I"ve said before I believe its passage could send a strong, symbolic message of inclusion. But that doesn't mean we should ignore possible unintended, and negative, consequences in making employers hesitant about hiring openly gay applicants (especially since ENDA, unlike the civil rights laws protecting racial minorities, won't be buttressed by either affirmative action mandates or judicial decisions requiring gays to be hired at least in proportion to our numbers in the local population).

Asking such heretical questions doesn't make your typical lesbigay activist very happy, but a movement on auto-drive isn"t, ultimately, in anyone's best interest.

In an op-ed published in Monday's New York Times, IGF contributor Bruce ("A Place at the Table") Bawer has this to say about the closing of New York's famed Oscar Wilde Bookshop (1967-2003):

Today's young gay readers, viewing their homosexuality not as a perplexity or a tragedy, but as a matter-of-fact part of their identity, are less likely to need the affirmation and reassurance (and company) that specifically gay books once provided. Increasingly, they know who they are. They're happy with who they are. They think of themselves as a part of the larger world. They may love to read -- let's hope they do -- but the hole in the soul that places like the Oscar Wilde Bookshop once helped to fill is no longer there. And that's not a terrible thing.

IGF contributor Dale Carpenter has penned this column on the National Gay & Lesbian Task Force joining the coalition against U.S. military action in Iraq. Writes Carpenter:

If there's a gay interest at all, it's in removing an anti-gay regime to make the lives of gay Iraqis at least marginally tolerable. But that would counsel gay support for a war, and NGLTF opposes it. -- NGLTF has completed its transformation from an organization concerned about gay rights to an organization concerned about all the world's problems. It is no longer a gay organization, and barely pretends to be.

Service-minded.

As reported in this Texas Triangle story, members of the Gay and Lesbian Service Members for Equality (GLSME) are asking that gays not be excluded from any future military draft (though I'd note restoring conscription is highly unlikely). "In this time of shared sacrifice, we believe that the military cannot afford to waste the talent of any American who is able to serve," says the group's letter to congressional leaders, which compellingly argues that "The Don't Ask, Don't Tell policy is harming the military by wasting precious talent and resources."

Elsewhere in the same story (and more extensively in the online Washington Blade), we learn that Northwestern University Professor Charles Moskos, the primary architect of the military policy on gay and lesbian soldiers, now says the ban should be scrapped if the draft returns. As he put it:

"You can't use a gay ban with a draft because that would make it too easy for people to get out. -- If an open gay said, "I want to go into the army," it would be his prerogative. -- Of course, there would be problems with that, there would be hassles, but they probably could be overcome."

So suddenly the bogeyman of "unit cohesion," the great threat to morale used to justify the whole "don't ask, don't tell" debacle (which I prefer to call "lie and hide"), doesn't really amount to so much after all. Who'd have thought? And by the way, what kind of person says gays shouldn't be allowed to volunteer for the army, but should be forced to join if a draft is instituted?

Clashing Colors.

The Texas Triangle story referenced above also notes that:

the Lavender Green Caucus, representing lesbian, gay, bisexual, transgender, queer, and intersex people in the Green Party of the United States, released a position statement opposing President Bush's planned invasion of Iraq, saying "Make no mistake -- American soldiers, gay and straight alike, will serve as cannon fodder in George W. Bush's bid to topple Saddam Hussein and gain control over Iraqi oil reserves""

Yes, the twin evils of capitalism and imperialism are always Why We Fight. The lavender greens, by the way, also oppose the military gay ban, so their position seems to be a demand to let gays serve as long as we never actually go to war.

Not the Same.

This Jan. 9 Philadelphia Inquirer story isn't the first time I've come across a report of a heterosexual wife deciding to remain with her husband after he undergoes male-to-female sexual surgery. "Their love survived great changes," reads the subhead. Clearly. On the legal side, some states allow these couples to remain married, though they appear to be a same-sex union -- just as some states, for instance, refuse to recognize marriages between a male-to-female transgendered person and a male (born male). Expect more litigation on this front, though the issue being judged may be the legal determination of gender identity rather than the rights of same-sex couples to wed.

Taking Aim.

The Jan. 10-16 issue of the Orange County Weekly features a big report on the Pink Pistols, the gay gun training / self-protection groups that are attracting the attention of the conservative National Rifle Assocation (NRA), but making some gay groups queasy. IGF's own Jonathan Rauch, a long-time Pink Pistols booster, is quoted at some length:

Rauch [wrote] that the appearance of strength was as important as strength itself. Consider straight America's response to the 1998 Shepard killing. "Shepard was small, helpless and childlike. He never had a chance. This made him a sympathetic figure of a sort that is comfortingly familiar to straight Americans: the weak homosexual."

Good intentions and hate-crime laws did nothing to help gays and lesbians because, Rauch wrote, they "do nothing to challenge the stereotype of the pathetic faggot. Indeed, they confirm it. By running to the heterosexual majority for protection, homosexuals reaffirm their vulnerability and victimhood."

The OC Weekly story goes on to note that:

The rise of the Pistols has proved a flinty issue for national gay organizations.... "This movement puts gay groups between a rock and hard place," Rauch says. "I think they"re uncomfortable with the premise, especially with how it makes their straight, liberal supporters feel. On the other hand, this is a true grassroots movement, which is all about self-empowerment, which is what the gay movement has been about. These groups don't know what to say."

Some Pink Pistol members who are quoted say they've felt more at home at NRA meetings when introducing themselves as Pistols than they have at certain gay organizations. Says one:

"I think the NRA sees the great possibilities. -- I"ve sat down with them, and some of them have had questions about gays and sex. Yeah, it was a little weird, but I could see they were genuinely interested. For many of them, it was probably their first contact with a gay man, and I was happy I was able to provide information so they could see I was a human being."

Stereotypes, after all, are best overcome when we, as gay people, actually make human connections with those who don't know us (or don't know they know us).

IGF contributor Rick Rosendall has given me permission to relay this account of how the highly conservative and often gay-hostile Washington Times treated his recent letter to the editor. Here's the story (hang in here): The paper has recently started carrying a weekly column by another IGF contributor, Andrew Sullivan of the oft-quoted andrewsullivan.com. In his Dec. 20 column (no longer available on the paper's website without paying), Andrew took to task the anti-gay group Accuracy in Media for promoting the idea that homosexuality is linked to pedophilia. In response, a letter to the editor penned by Accuracy in Media's Reed Irvine ran in the paper. In answer to Irvine's letter (keeping hanging in there), Rick Rosendall wrote this response, which then subsequently ran in the paper.

Except that the way Rick's letter appeared in print wasn't the way he wrote it: the letters editor changed Rick's use of the word "gay(s)" to "homosexual(s)" throughout. Rick, feeling his point of view had been skewed, fired off the following missive to the letters editor:

I strongly object to your changing "gay" to "homosexual" throughout my letter as printed in today's letters page. Regardless of your own style sheet, this sort of editorial policy makes no sense, as it is my name below the letter and not yours, and that is not what I wrote. Virtually no one talks that way any more, including Times readers. This is such a relic, I cannot believe you would insist on doing this. Why can't you let people speak in their own voices, short of obscenity? In fact, why don't you insist on it?

In response, Rick received the following note:

Dear Mr. Rosendall,
Per The Times' policy against Orwellian abuse of the English language, the euphemism "gay" is not used to describe the homosexual lifestyle.
Cordially,
Matthew A. Rarey, Letters Editor

What's interesting is not so much that a right-leaning paper has a thoroughly, even laughably, reactionary letters editor (even the title he gave Rick's original published letter, "Homosexuals pooh-pooh pedophilia," is belittling and misleading), but that this very conservative paper also is running Andrew Sullivan's "Weekly Dish" column and not editing its pro-gay content, much less its use of the "G" word instead of the "H" word. Institutions, I believe, don't change all at once, and even the most right-wing often have, at any point in time, people who are to varying degrees in our corner or against us. Maximizing the forward-thinkers and standing up to the backward-lookers is what it's all about.

On a happier media note, following the lead of its flagship paper, The Orange County Register, Freedom Communications Inc. has become the first national newspaper chain to enact a policy for all its papers to print same-sex union announcements, as noted in this press release. The Orange County Register is usually characterized as a conservative paper, but one that leans toward libertarian conservatism. Which just goes to show what a truly ideologically diverse world we live in!
--Stephen H. Miller

The U.S. Supreme Court will soon hear arguments in Lawrence v. State of Texas, a case that could overturn all remaining state "sodomy laws" through the U.S. -- or, perhaps, just overturn same-sex sodomy laws, or in the worse case scenario, wind up upholding these hideous relics. Amicus (or "friend of the court") briefs in support of one side or the other are being filed by numerous organizations; the deadline is January 16.

The liberal Justices on the court (Ginsburg, Breyer, Souter, and Stevens) are all expected to vote to overturn the sodomy statutes. The moderate-conservatives (O"Connor and Kennedy) are the swing votes that could go either way, though Kennedy wrote the Evans v. Romer ruling that barred Colorado and other states from blocking gay rights laws. O"Connor signed onto Romer, but also voted to keep sodomy laws 17 years ago when the court last visited the issue, in Bowers v. Hardwick. The hard conservatives (Scalia and Rehnquist) will vote to uphold the laws. I didn't include Thomas among them because, believe it or not, some court watchers think he might actually be reachable with the right limited-government arguments. It's doubtful, I admit, but possible.

The briefs with the best chance to sway the non-liberals will be filed by groups such as the libertarian Cato Institute (see my earlier posting on a Cato letter in the Wall Street Journal arguing for repeal based on equal liberty/equal protection arguments under the 14th Amendment); by the Log Cabin Republicans and its sister group, the Liberty Education Forum (which will also, in part, be making equal protection arguments); and by the Republican Unity Coalition.

Of real concern, however, are the briefs to be filed by groups such as the National Organization for Women, and perhaps the National Gay & Lesbian Task Force, among others. It's quite possible that their arguments will be based not on conservative constitutional principles, but on the greatly disputed "privacy right" behind Roe v. Wade, under which a far more liberal court found abortion rights in the Constitution. Even more problematic, they may reach to include arguments in favor of gay marriage -- certainly a worthy and important cause, but one that should be taken to the court only after sodomy repeal is the law of the land. Arguments of this nature may appeal to the left-liberal base of thes groups. But while not needed to achieve the votes of the liberals, they could well scare off the centrist and conservative swing votes. In any event, we"ll know soon enough.

Who's Being Helped?

Michael Bronski, a writer on the gay left, scores a number of good points in this critique of the Gay & Lesbian Alliance Against Defamation, a group I was affiliated with several years ago. Bronski, writing in Boston's The Phoenix, looks at some of GLAAD's recent actions and observes:

The bottom line is that GLAAD has more in common than not with right-wing, religion-based groups that have railed against such works as Terrence McNally's Corpus Christi and Martin Scorsese's The Last Temptation of Christ. -- [GLAAD] is claiming that there is only one correct way to represent homosexuality through art. If the former is religious fundamentalism, the latter is sexual-identity fundamentalism. And if enforcing that is what GLAAD sees as its job, it's fair to ask whether the organization has lost its way -- and its relevance.

Although Bronski doesn't say it, GLAAD's recent habit of shaking contributions out of producers, in order to avoid trouble over works that GLAAD may otherwise find insufficiently positive as representations of lesbian and gay (and bisexual and transgender) lives, comes right out of the Jesse Jackson playbook.

Late Addendum: Whoops! Bronski's critique is actually more than a year old - the fact that the Phoenix puts today's date on top of its web pages, even for archived material, threw me a curve. Oh, well, it's still worth noting.