IGF CultureWatch

Originally appeared October 7, 1991, in The New Republic.

MAYOR DAVID DINKINS marched with the gay contingent this year in New York's St. Patrick's Day parade. Michael Burke, a thirty-year-old resident of New Jersey, threw a can of beer at him. Burke missed, thus avoiding a felonious assault charge. Instead he was charged with reckless endangerment and disorderly conduct. Because the crime was deemed bias-related, and because it was Burke's first offense, the prosecutors recommended, and the defendant and the judge accepted, what's known as an alternative sentence: forty hours of community service in the New York Mayor's Office for the Lesbian and Gay Community.

Burke might have gone to jail, surely an appropriate sentence for a man who tried to brain a public official. He might have done community service at a head-trauma clinic, where he could see the consequences of violent acts like his own. Instead he was sent to work with gays. This penalty makes sense only as a corrective for his repugnant attitude toward homosexuals.

Hardly anyone seems to share my dismay. The New York Times article about the sentence carried the approving headline: "Beer Flinger Sent to a Fitting Cooler. -- At the Sentencing Project in Washington, assistant director Marc Mauer says that such sentences may help prevent violent acts in the future. "I think we do have a responsibility, purely from a crime-control point ofview, to confront the causes of his action. -- Matt Foreman, the executive director of the Gay and Lesbian Anti-Violence Project in New York, said he was thrilled with the sentence.

Should prejudice, which often leads to injustice, be punished? Should hate, which often leads to violence, be a crime? More and more well-meaning Americans are now saying yes to both questions. It's the wrong answer. I say this despite being a member of the class that Burke allegedly sought to denigrate. The minority-led march toward attitude activism and prejudice policing is dangerous and counterproductive.

To see why, consider separately the two component issues in the beer-can incident. One, a man hurled a dangerous object at a public official. Two, he did this because ostensibly?he denied it?he was prejudiced against homosexuals. Obviously the act of violence deserves punishment. The hard question is: What do you do about the prejudice that lay behind the act?

One option is the by-now-familiar inculcation of tolerance - racial, sexual, cultural - being pursued in universities around the country. Everyone has heard the stories. A University of Michigan student who makes a tasteless joke is required to attend gay-sensitivity sessions and publish a piece of self-criticism called "Learned My Lesson. -- The University of Maine posts messages on the inside of bathroom stall doors: "Sexual harassment is not defined by the intentions of the accused... [but] by the effect on the victim." People for the American Way, a liberal group originally founded to counter the thought-policing influence of right-wing fundamentalists, recently issued a report urging universities to combat prejudice even "when there have been few, if any, overt expressions of intolerance on campus."

The campus efforts to stamp out prejudice have been failing egregiously and noisily, just as they should. Universities' business is to test prejudices in debate, not to regulate them. But short of hard-core political correctness is a compromise approach, one that is much harder to object to. This is the hate-crimes approach. It says that prejudice by itself should not be punished, but prejudice together with violence should be.

There's something to be said for hate-crimes laws. The argument is that crimes such as cross burnings are a threat directed against a whole class, and a vulnerable class at that. Clearly, throwing a swastika-emblazoned rock through a synagogue window is not the same as throwing any old rock through any old window. More and more state legislatures agree. At least two-thirds of them, according to the Anti-Defamation League, have adopted statutes against hate crimes. For instance, Michigan's law specifies up to two years in prison and up to $5,000 in fines for "ethnic intimidation, -- in which a person assaults, vandalizes, or threatens "with specific intent to intimidate or harass another person because of that person's race, color, religion, gender, or national origin. "

The trouble is that in practice such laws come close to criminalizing prejudice. Ohio passed an "ethnic intimidation -- law, which deems crimes more serious if committed "by reason of the race, color, religion, or national origin of another person or group of persons. -- This verges on making what a defendant says or believes about race a part of the crime - and, as a state appellate court pointed out in overturning the law, it "vests virtual complete discretion in the hands of the state to determine whether a suspect committed the alleged acts based on... race, color, religion, or national origin. -- A St. Paul, Minnesota, ordinance (also under challenge) goes a step further: the law makes it a misdemeanor to place "on public or private property a symbol, object, appellation, characterization, or graffiti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, or religion." This seems to say that it's a hate crime to upset someone. In Florida a black man has been charged under the state's hate-crime law for calling a white policeman a "cracker."

Why shouldn't the law be used to combat destructive attitudes? For instance, why shouldn't a violent racist be sentenced to work for the NAACP, where he can confront the humanity of the people he hates? Why shouldn't a swastika-scrawler be sentenced to study the Holocaust?

First, because forced reeducation rarely works. A lot of governments have tried it, and the results are to be seen in the rubble of communism.

Second, because the biggest problem in America today for minorities and non-minorities alike is not racism, prejudice, homophobia, or what have you. It's also not drugs, medical underinsurance, or even poverty. It's violence. Young black men face more risk in the streets of Chicago's South Side and Los Angeles's Watts than American soldiers faced in Vietnam. Hate crimes activists argue that bias-motivated crime deserves special handling because it is especially harmful to society. But they have a hard time explaining why this is so. Why is it more terrorizing or socially destabilizing to stab someone because he's Jewish, for instance, than to stab someone for his sneakers? The former signals that Jews are in danger; the latter signals that everyone is in danger. And there's an insidious cost to coming down especially hard on violence that's linked to bias, drugs, or other secondary ills. Necessarily, if you say that assault motivated by bias is especially objectionable, you also say that assault not motivated by bias is less objectionable. Tying the fight against violence to other political agendas clutters and compromises what needs to be a clarion message: violence is intolerable, period.

Third, and most important, because the goal itself is misguided. The ADL, in a 1988 report, said, "Importantly, laws which more severely punish violent manifestations of anti-Semitism and bigotry demonstrate the country's resolve to work toward the elimination of prejudice. -- For private groups such as the ADL and the NAACP, as well as for parents and preachers, "elimination of prejudice -- is indeed a worthy goal. But different groups will have different ideas of what constitutes "prejudice." (Is secular humanism prejudice against Christians? Is Afrocentrism prejudice against whites?) That is why eliminating prejudice is exactly what "the country" - meaning its governmental authorities - must not resolve to do. Not only is wiping out bias and hate impossible in principle, in practice "eliminating prejudice -- through force of law means eliminating all but one prejudice - that of whoever is most politically powerful.

Personally, being both Jewish and gay, I do not expect everybody to like me. I expect some people to hate me. I fully intend to hate those people back. I will criticize and excoriate them. But I will not hurt them, and I insist that they not hurt me. I want unequivocal, no-buts protection from violence and vandalism. But that's enough. I do not want policemen and judges inspecting opinions.

I think it's ironic and a little sad that gays, of all people, would endorse a criminal sentence that has overtones of forced re-education. Homosexuals know a thing or two about being sent for therapy or reeducation to have their attitudes straightened out. Jews, too, know something about courts that decide whose belief is "hateful. -- As on campus, so in the courtroom: the best protection for minorities is not prejudice police but public criticism - genuine intellectual pluralism, in which bigots, too, have their say. Minorities above all should be worrying about Michael Burke's sentence.

First appeared in the New Republic August 28, 1989.

LAST MONTH IN NEW YORK, a court ruled that a gay lover had the right to stay in his deceased partner's rent-control apartment because the lover qualified as a member of the deceased's family. The ruling deftly annoyed almost everybody. Conservatives saw judicial activism in favor of gay rent control: three reasons to be appalled. Chastened liberals (such as the New York Times editorial page), while endorsing the recognition of gay relationships, also worried about the abuse of already-stretched entitlements that the ruling threatened. What neither side quite contemplated is that they both might be right, and that the way to tackle the issue of unconventional relationships in conventional society is to try something both more radical and more conservative than putting courts in the business of deciding what is and is not a family. That alternative is the legalization of civil gay marriage.

The New York rent-control case did not go anywhere near that far, which is the problem. The rent-control regulations merely stipulated that a "family" member had the right to remain in the apartment. The judge ruled that to all intents and purposes a gay lover is part of his lover's family, inasmuch as a "family" merely means an interwoven social life, emotional commitment, and some level of financial interdependence.

It's a principle now well established around the country. Several cities have "domestic partnership" laws, which allow relationships that do not fit into the category of heterosexual marriage to be registered with the city and qualify for benefits that up till now have been reserved for straight married couples. San Francisco, Berkeley, Madison, and Los Angeles all have legislation, as does the politically correct Washington, D.C., suburb, Takoma Park. In these cities, a variety of interpersonal arrangements qualify for health insurance, bereavement leave, insurance, annuity and pension rights, housing rights (such as rent-control apartments), adoption, and inheritance rights. Eventually, according to gay lobby groups, the aim is to include federal income tax and veterans benefits as well. A recent case even involved the right to use a family member's accumulated frequent-flier points. Gays are not the only beneficiaries; heterosexual "live-togethers" also qualify.

There's an argument, of course, that the current legal advantages extended to married people unfairly discriminate against people who've shaped their lives in less conventional arrangements. But it doesn't take a genius to see that enshrining in the law a vague principle like "domestic partnership" is an invitation to qualify at little personal cost for a vast array of entitlements otherwise kept crudely under control.

To be sure, potential DPs have to prove financial interdependence, shared living arrangements, and a commitment to mutual caring. But they don't need to have a sexual relationship or even closely mirror old-style marriage. In principle, an elderly woman and her live-in nurse could qualify. A couple of uneuphemistically confirmed bachelors could be DPs. So could two close college students, a pair of seminarians, or a couple of frat buddies. Left as it is, the concept of domestic partnership could open a Pandora's box of litigation and subjective judicial decision-making about who qualifies. You either are or are not married; it's not a complex question. Whether you are in a "domestic partnership" is not so clear.

More important, the concept of domestic partnership chips away at the prestige of traditional relationships and undermines the priority we give them. This priority is not necessarily a product of heterosexism. Consider heterosexual couples. Society has good reason to extend legal advantages to heterosexuals who choose the formal sanction of marriage over simply living together. They make a deeper commitment to one another and to society; in exchange, society extends certain benefits to them. Marriage provides an anchor, if an arbitrary and weak one, in the chaos of sex and relationships to which we are all prone. It provides a mechanism for emotional stability, economic security, and the healthy rearing of the next generation. We rig the law in its favor not because we disparage all forms of relationship other than the nuclear family, but because we recognize that not to promote marriage would be to ask too much of human virtue. In the context of the weakened family's effect upon the poor, it might also invite social disintegration. One of the worst products of the New Right's "family values" campaign is that its extremism and hatred of diversity has disguised this more measured and more convincing case for the importance of the marital bond.

The concept of domestic partnership ignores these concerns, indeed directly attacks them. This is a pity, since one of its most important objectives-providing some civil recognition for gay relationships�is a noble cause and one completely compatible with the defense of the family. But the way to go about it is not to undermine straight marriage; it is to legalize old-style marriage for gays.

The gay movement has ducked this issue primarily out of fear of division. Much of the gay leadership clings to notions of gay life as essentially outsider, anti-bourgeois, radical. Marriage, for them, is co-optation into straight society. For the Stonewall generation, it is hard to see how this vision of conflict will ever fundamentally change. But for many other gays�my guess, a majority�while they don't deny the importance of rebellion twenty years ago and are grateful for what was done, there's now the sense of a new opportunity. A need to rebel has quietly ceded to a desire to belong. To be gay and to be bourgeois no longer seems such an absurd proposition. Certainly since AIDS, to be gay and to be responsible has become a necessity.

Gay marriage squares several circles at the heart of the domestic partnership debate. Unlike domestic partnership, it allows for recognition of gay relationships, while casting no aspersions on traditional marriage. It merely asks that gays be allowed to join in. Unlike domestic partnership, it doesn't open up avenues for heterosexuals to get benefits without the responsibilities of marriage, or a nightmare of definition litigation. And unlike domestic partnership, it harnesses to an already established social convention the yearnings for stability and acceptance among a fast-maturing gay community.

Gay marriage also places more responsibilities upon gays: it says for the first time that gay relationships are not better or worse than straight relationships, and that the same is expected ofthem. And it's clear and dignified. There's a legal benefit to a clear, common symbol of commitment. There's also a personal benefit. One of the ironies of domestic partnership is that it's not only more complicated than marriage, it's more demanding, requiring an elaborate statement of intent to qualify. It amounts to a substantial invasion of privacy. Why, after all, should gays be required to prove commitment before they get married in a way we would never dream of asking of straights?

Legalizing gay marriage would offer homosexuals the same deal society now offers heterosexuals: general social approval and specific legal advantages in exchange for a deeper and harder-to-extract- yourself-from commitment to another human being. Like straight marriage, it would foster social cohesion, emotional security, and economic prudence. Since there's no reason gays should not be allowed to adopt or be foster parents, it could also help nurture children. And its introduction would not be some sort of radical break with social custom. As it has become more acceptable for gay people to acknowledge their loves publicly, more and more have committed themselves to one another for life in full view of their families and their friends. A law institutionalizing gay marriage would merely reinforce a healthy social trend. It would also, in the wake of AIDS, qualify as a genuine public health measure. Those conservatives who deplore promiscuity among some homosexuals should be among the first to support it. Burke could have written a powerful case for it.

The argument that gay marriage would subtly undermine the unique legitimacy of straight marriage is based upon a fallacy. For heterosexuals, straight marriage would remain the most significant -- and only legal -- social bond. Gay marriage could only delegitimize straight marriage if it were a real alternative to it, and this is clearly not true. To put it bluntly, there's precious little evidence that straights could be persuaded by any law to have sex with -- let alone marry -- someone of their own sex. The only possible effect of this sort would be to persuade gay men and women who force themselves into heterosexual marriage (often at appalling cost to themselves and their families) to find a focus for their family instincts in a more personally positive environment. But this is clearly a plus, not a minus: gay marriage could both avoid a lot of tortured families and create the possibility for many happier ones. It is not, in short, a denial of family values. It's an extension of them.

Of course, some would claim that any legal recognition of homosexuality is a de facto attack upon heterosexuality. But even the most hardened conservatives recognize that gays are a permanent minority and aren't likely to go away. Since persecution is not an option in a civilized society, why not coax gays into traditional values rather than rail incoherently against them?

There's a less elaborate argument for gay marriage: it's good for gays. It provides role models for young gay people who, after the exhilaration of coming out, can easily lapse into short-term relationships and insecurity with no tangible goal in sight. My own guess is that most gays would embrace such a goal with as much (if not more) commitment as straights. Even in our society as it is, many lesbian relationships are virtual textbook cases of monogamous commitment. Legal gay marriage could also help bridge the gulf often found between gays and their parents. It could bring the essence of gay life�a gay couple�into the heart of the traditional straight family in a way the family can most understand and the gay offspring can most easily acknowledge. It could do as much to heal the gay-straight rift as any amount of gay rights legislation.

If these arguments sound socially conservative, that's no accident. It's one of the richest ironies of our society's blind spot toward gays that essentially conservative social goals should have the appearance of being so radical. But gay marriage is not a radical step. It avoids the mess of domestic partnership; it is humane; it is conservative in the best sense of the word. It's also practical. Given the fact that we already allow legal gay relationships, what possible social goal is advanced by framing the law to encourage those relationships to be unfaithful, undeveloped, and insecure?