IGF CultureWatch

California Young Americans for Freedom (YAF) leader Ryan Sorba was booed at the Conservative Political Action Conference (CPAC) when he said CPAC shouldn't have allowed the gay group GOProud [a coalition of gay Republicans] to be there. Here's the YouTube:

Alexander McCobin of Students for Liberty provoked Sorba's comments by saying in his own short speech:

"In the name of freedom, I would like to thank the American Conservative Union for welcoming GOProud as a co-sponsor of this event, not for any political reason but for the message it sends….Students today recognize that freedom does not come in pieces. Freedom is a single thing that applies to the social as well as the economic realms and should be defended at all times."

McCobin also drew some boos, but they were drowned out by applause. CPAC is the largest annual gathering of the hard-right wing of the Republican party. This represents progress.

After the GOP makes expected big congressional gains this coming November, lobbying within the libertarian wing of the Republican party will be vitally important. But don't count on the big-name "progressive" LGBT groups to bother with anything remotely like constructive engagement.

If the goal of those opposing same-sex marriage is to keep us from getting married, or having our relationships legally recognized, or "destroying" marriage, you might think they'd be happy enough to see our relationships formally dissolved.

But that's clearly not the case. The most recent example of an eager politician deploying gay equality as a strategy rather than an issue is Texas Attorney General Greg Abbott, who wants to prevent a lesbian couple legally married in Massachusetts from getting a divorce in his state.

It's easy to simply scoff at this story, but it's enormously important. It's not just marriage our opponents are out to deny us - it's any acknowledgement in the law that our relationships exist. Even the legal mechanism for undoing our marriages is too much legal recognition for them.

What they want is for us to return to the closet.

It is our invisibility they desire. They can no longer plausibly claim we don't exist at all, but they'll be damned if they'll allow the law to include us either explicitly or even implicitly. Better a married gay couple than a divorced one, if it means permitting a gay couple to invoke the law of divorce.

Those of us who are old enough grew up in that netherworld where the law simply had nothing to say about us, and everyone was allowed to live in denial about our existence. We had to fend for ourselves, literally outside the law.

We will not return to those days, and neither will anyone else. Our existence in the law is now firmly enough established - even if it's to deny us marriage under state constitutions - that the closet is no longer an option, for us or for the rest of the country.

Yet that is what a Texas politician is trying to do, leave a same-sex couple in the legal oblivion that he thinks should be their fate.

The libertarian Cato Institute today hosted a forum on the topic "Is There a Place for Gay People in Conservatism and Conservative Politics?," featuring Nick Herbert, MP, the British Conservative Party's openly gay Shadow Secretary of State for Environment, Food, and Rural Affairs. Responses to Herbert's remarks (an affirmative reply to the above question) were provided by Andrew Sullivan, a supporter of President Obama who detests the Republican party, and anti-gay activist Maggie Gallagher, who opposes any conservatism that might grant gay people the freedom to legally marry and thus equal liberty under the law.

Rick Sincere has blogged a richly detailed account, which I highly recommend. It's well worth reading.

More. I see that over at Positive Liberty, Jason Kuznicki also has blogged his views of the event (as a libertarian, he's skeptical of the proposition). While Dan Blatt at the proudly conservative and pro-Republican Gay Patriot site takes umbrage at the absence of an actual gay American conservative on the panel.

It's easy to find fault with "The Homosexuals," a 1967 documentary from CBS, the first ever aired on a major network about "the problem" of homosexuality. Dave White at The Advocate, rediscovered the relic, and provides a litany of its sins. For example, it focuses exclusively on gay men, and has not a word to say about how lesbians (who, one assumes, are also homosexual) might be different. Amazing how that focus on gay men to the exclusion of lesbians plagues our discussion even now.

That may be because lesbians don't fit so comforably into the stereotype of relentless, anonymous sex that is the documentary's framework. Mike Wallace's sometimes squalid questions and lascivious tone appear presumptuous and patronizing today, if you can't give yourself a little distance and appreciate its camp value:

The average homosexual, if there be such, is promiscuous. He is not interested in, nor capable of a lasting relationship like that of a heterosexual marriage. His sex life, his "love" life, consists of a series of chance encounters at the clubs and bars he inhabits, and even on the streets of the city, the pick up, the one night stand, these are characteristic of the homosexual relationship.

It's impossible to do justice to his spin on the word "love;" you have to hear it for yourself (this passage is about the 8:20 mark) to appreciate how near to contempt he finds the very thought.

And that age's experts on homosexuality are given almost total deference in the piece. Charles Socarides pronounces, to a classroom of curious students (including us) the conventional notion of the time that homosexuality is a mental illness. But he then goes further in responding to a student question about "happy homosexuals," by scoffing; they don't and can't exist. Question answered. Next?

That's why it might be hard to appreciate how groundbreaking this documentary really was. No one who missed the 1950s and 60s can imagine how much sheer effort it took, then, for the nascent gay rights movement to be heard or taken seriously. Mention of the word "homosexual" on commercial television in a neutral way was almost inconceivable. An hour-long slot on the subject -- even with condescension, misinformation and insults -- was a bonanza.

We simply have no conception, today, of how dominant -- and successful -- the closet was in virtually shutting down any public conversation at all in which gay men are viewed as citizens rather than predators. Yet the documentary opens with a gay man who is well adjusted even by the standards of our own time. There are also interviews with a judge (from North Carolina!) and a prosecutor who are going through the first stages of questioning social conventions about homosexuality. And, of course, any journalism from those days that includes an interview with Frank Kameny won't make it easy to leave unchallenged the notion which took for granted our (in Dean Rusk's candid phrase) "personal instability." (Kameny and Rusk make their points starting at the 29 minute mark.)

The toxins that still infect our debate today are closer to the surface here. And chief among them is the human distortion that Jonathan Rauch, Bruce Bawer and Andrew Sullivan have all tried so valiantly to have heterosexuals of good will envision: What would life be like if you grew up believing that love would have no role in your future? How would that affect a human being's ordinary development and moral thinking?

I can't imagine any way to make that point better than Mike Wallace's discrediting of the word "love" for gay men. He honestly felt, as virtually everyone else at the time did, that gay men were "not interested in, nor capable of, a lasting relationship like that of heterosexual marriage." In fact, the documentary ends with a (heterosexually) married homosexual saying that he doesn't believe he could have a "love relationship" with another man. His moral imagination was formed, along with the rest of the culture, around the notion that homosexuality involves no emotions, no affection, no relationship to others except the physical.

Wallace has since regretted the documentary's tone, as well as the prejudices of the time. But he has no reason to regret having participated in helping this nation begin an open discussion about homosexuality.

Forty-three years later, this documentary is timely again. Heterosexuals today don't have to imagine the moral deformity that was demanded of gay men by assuming they had no need for love. "The Homosexuals" shows exactly what that looks like. When we fight for legal recognition of our relationships, it is because of this sabotage of our souls. I am grateful we have it today to help make our case.

On CNN's "State of the Union," National Security Adviser (and retired four-star general) James L. Jones argues puts a powerful frame around repeal of Don't Ask, Don't Tell:

I have served my country in uniform since 1967, and in that period, we covered racial questions, racial integration. We've covered the integration of women in the armed forces. People suggested that that would be a national security problem if we did both of those things. It turned out to be, as a matter of fact, a force multiplier by doing those things. People - and I grew up in a generation where they said if you integrate members of the gay community, that will be a national security problem. That will probably prove itself to be false as well.

Proponents of DADT are down to arguing, in effect: Why mess with a policy that works in time of war? As Daniel Pipes puts it, "Now is not the time for social experimentation in the armed forces." Jones has the answer: integration is not a distraction, it is a force multiplier. With those two words, "force multipler," the general has given pro-repeal forces a rallying cry. Let's shout it from the rooftops.

Just a quick (and what I think is obvious) word on the fact that the judge presiding over the Prop. 8 trial is gay: It was inevitable that he would have some sexual orientation, and there really aren't that many options.

The fact that he has a sexual orientation -- a homosexual one, as it turns out -- doesn't make Judge Vaughan Walker any more biased toward what some might view as his team's side than an opposite sexual orientation would in favor of the majority. Unless, of course, you go in for the notion that nobody is ever not biased by their sexual orientation -- which is, itself, a bias.

A rather potent bit of evidence suggests that Judge Walker has the ability to separate his sexual orientation from his legal work. When he was nominated to the bench (first, unsuccessfuly, by Ronald Reagan, then by George H.W. Bush), his biggest obstacle was opposition from the gay community because he had represented the U.S. Olympics in a trademark suit against the Gay Olympics. This caused gay activists no end of dyspepsia.

Both heterosexual and homosexual judges all have an identical obligation to be fair and impartial, and to be fully accountable. If Judge Walker does exhibit bias, that alone is enough for a reviewing court to disqualify him . No one defending Prop. 8 has even filed such a motion, to my knowledge, and if they have they certainly haven't convinced any higher court of the merits.

Of course non-participants like NOM and Ed Whelan, the Excitable Boy over at NRO, can get as rhetorically exercised as they wish. But anything Judge Walker does will be reviewed by at least three judges in the Court of Appeal, possibly another 11 or so there, and then nine more above them. To my knowledge, none of these potential reviewers is him or herself openly homosexual. But even if one or two has slipped through, the homosexuals will - as arithmetic demands - be vastly outnumbered.

That would leave bias unconnected to sexual orienation -- as it should be.

Even those of us who believe the Constitution protects us know that a ruling in our favor will only be as secure as at least 2/3 of the states will let it be. That's why we have to keep up our efforts to change the political culture.

This is how we are doing it: A brief conversation in South L.A., where an African-American woman, who obviously does not feel comfortable even talking about the subject is kindly but firmly helped to actually think about the issue directly.

I don't know who Jay, the lesbian canvasser is, but hers is the face of the last mile in this revolution. Thanks to all the Jays out there.

I come not to praise the distinction between status and conduct, but to bury it.

Differentiating between conduct - doing homosexual things - and status - being homosexual - has been with us for most of the modern gay rights debate. That's in part because of a fundamental tenet of the law that says you can't convict someone of a crime based on their status, only their bad conduct. The government can't criminalize alcoholism, but it can convict an alcoholic of doing otherwise criminal things.

Sodomy has historically been the bad thing that homosexuals did. Theoretically, heterosexuals could also engage in the same form of bad behavior, but because sodomy has so conventionally been used against homosexuals, that has tended to be the focus of the public discussion.

In 1986, Bowers v. Hardwick seemed to erase that distinction. The majority's almost obsessive focus on the phrase "homosexual sodomy" when analyzing a law that applied to sodomy without reference to the genders of the participants, appeared to give permission to discriminate against homosexuals. If not, why spend so much time talking about homosexual sodomy when the statute didn't?

That is exactly how Ninth Circuit Judge Stephen Reinhardt read Bowers. In one of the pre-DADT cases of military discharge for homosexuality, Judge Reinhardt would have ruled against Sgt. Perry Watkins. The majority opinion (later overturned) had distinguished the spanking-new Bowers because that was a case about homosexual conduct, and Watkins' case was about sexual orientation as a status. They found homosexuals to be a suspect class for equal protection purposes, and ruled that the military could not constitutionally ban all homosexuals simply because of their status as homosexuals.

Judge Reinhardt found the distinction an unconvincing reading of Bowers:

I do not believe we can escape the conclusion that "homosexuals", however defined, cannot qualify as a suspect class. Even if we define the class as those who have a "homosexual orientation", its members will consist principally of active, practicing homosexuals. That the class may also include a small number of persons who are or wish to be celibate is irrelevant for purposes of determining whether the group as a whole constitutes a suspect class. I simply see no way to say that homosexuals defined broadly (by status) are a suspect class, but that the same group, if more narrowly defined (by conduct) is not. Whether the group is defined by status or by conduct, its composition is essentially the same. In short, "homosexuals" are either a suspect class or they aren't.

He concluded that the fairest reading of Bowers allowed open discrimination against homosexuals, period, and that as a judge on a court inferior to the Supreme Court, he could not depart from their ruling - or what he believed to be their bias.

I had the privilege of working in Judge Reinhardt's chambers the year after Watkins. It had caused quite a stir in his office, and I had the opportunity to discuss my own views (supporting the majority) with him. He was unshakable, and I came to believe he was right. The overreach in the Bowers majority is nothing but the conventional understanding that, whatever the specifics, homosexuals should not have sex with one another. The fact that they do have sex gives rise to all the peripheral prejudice against them. If (as Bowers ruled) the law can prohibit homosexual sex, its inferential and attendant prejudices against the group must also be permissible.

Judge Reinhardt did not personally believe it was appropriate (or constitutional) to treat homosexual sex differently than heterosexual sex:

[T]he fact that homosexuals (or persons of "homosexual orientation") engage in or seek to engage in homosexual conduct is as unremarkable as the fact that "heterosexuals" (or persons of "heterosexual orientation") engage in or seek to engage in heterosexual conduct. To pretend that homosexuality or heterosexuality is unrelated to sexual conduct borders on the absurd.

That brings me back to Sprigg/Fischer/Bahati. They want to love the sinner but hate the sin. While that's as suspect in theology as it is in law, they are free to condescend to us as a religious belief. But here in the secular world, Bowers is no longer the law, and the civil world has to take us as we are, conduct and orientation together.

It remains fashionable to dismiss Judge Reinhardt as a knee-jerk liberal (and, to be fair, he has a long track record to that effect). But Watkins stands as one crystal clear example where he knew what result he wanted, and found the fairest reading of the law did not permit that result.

Lawrence is now controlling, and Justice Scalia articulated a thought similar to that of Judge Reinhardt in his Watkins dissent. Overturning Bowers is a pivotal step for the equal protection challenge that the Watkins majority prematurely forged. Why do our lives have to be dissected into discrete legal arenas and sectors? We're whole human beings, sex and love included. Lawrence helped put our lives back together again.

Lawrence applies to criminal laws, and marriage is quite different. But Justice Scalia thought that overturning Bowers would inevitably lead to a fuller equality that would have to include marriage. I agree. We will see if Justice Scalia hews to the same kind of principled respect for his court's authority that Judge Reinhardt exhibited when he was put to the test.

We are indebted to Peter Sprigg of the Family Research Council and Bryan Fischer of the American Family Association - not to mention David Bahati, sponsor of Uganda's Anti-gay bill - for returning us to a debate that should have been put out of its misery in 2003: Should homosexual conduct be against the law?

Lawrence v. Texas answered the question for constitutional purposes. The government has no legitimate business making particular sexual acts a criminal offense if they are voluntary, adult and in private.

But the constitution isn't everything. For centuries, criminal prohibitions provided the foundation for official (i.e. legal and governmental) discrimination against homosexuals. The premises about homosexuality in those laws are what most older people, in particular, take for granted. We may no longer be criminals under the law, but in some people's minds we are certainly doing something that is wrong.

The unambiguous desire of Sprigg/Fischer/Bahati to reestablish a legal regime where homosexual conduct is criminal lets us look at the issue from today's entirely new perspective: Why is some sexual conduct between consenting adults in private wrong. By "wrong" I do not mean "a sin," since I am talking about the law here, not theology. Religious adherents are free to believe, among themselves, what their religion teaches about sin, whether it's murder or adultery or dancing. There is much overlap between criminal laws and theological transgressions, but the two realms are not identical. Criminal laws in a pluralistic society of varied religious beliefs have to have justifications beyond sinfulness, since there is inconsistency between, and even within religions, and since many people belong to no formalized religion at all, a choice the constitution requires all of us to respect.

Sprigg distinguishes between homosexual conduct and homosexual orientation. Homosexual conduct is bad, but mere orientation is no problem. Ironically, this is a distinction gay rights supporters have drawn as well, when it has been advantageous. But it doesn't answer any questions.

Justice Scalia illustrates the problem in his dissent in Lawrence: "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home."

Look how casually the thinking here moves from the notion of homosexual conduct as sex to homosexual conduct as - well, as being gay. It's safe to assume, I'd think, that few, if any of those business partners, scoutmasters, teachers or room-renters would be observing any sexual activity by these particular homosexuals (though the last category comes very close, which is why it is given universal exemption in housing discrimination laws). In the quote, it's not even necessary that any of those people have a partner at all. The homosexual conduct Justice Scalia is concerned about people so "openly" engaging in is living their lives without hiding their sexual orientation. Simply being gay, the way heterosexuals are straight, is to "openly engage in homosexual conduct."

The closest to "openly" engaging in conduct that could be considered sexual is when homosexuals kiss or hold hands while walking down the street. That's openly being gay, but it's not different (in the view of the people Scalia is worried about) from sodomizing your partner right there at the corner of Pico and Sepulveda.

There is no such concern about heterosexual kissing or hand-holding. More to the point, no sodomy law ever prohibited such acts. So why the difference for gays?

That difference is everything. In general, most people don't spend a lot of time imagining the sex lives of others; or when they do, it's considered impolite if not outright rude. Yet speculation like this is taken for granted when homosexuals are the subject.

It is that permissive speculation about sexual conduct that brings the bedroom right out into the open, and makes gays ripe for this kind of condemnation. It reaches its zenith of absurdity in DADT. DADT strays so far from a requirement of actual conduct that simply speaking about being gay is sufficient to have a servicemember ejected. The theory is that this shows a "propensity" to engage in homosexual conduct, and therefore a mere statement gives the military sufficient evidence of someone's unfitness.

Yet heterosexuals have a propensity to engage in heterosexual conduct - and "propensity" may be understating it for many of them. Some of their conduct will be the same kind of sodomy as homosexuals might engage in - specifically oral or anal sex. Yet for heterosexuals, we don't (as the kids say) go there.

The debate about sexual conduct is not about sexual conduct at all, but about being openly gay. It is that honesty which is objectionable. Even Peter Sprigg acknowledges that some people have a homosexual orientation. The criminal law has as little effect on that as it could have on preventing the tide from coming in. All it can do is prevent people from being honest - or, in Justice Scalia's words, of "openly" engaging in what he calls "conduct." But as we see in the debate over DADT, when honesty is a problem the law is trying to solve, there is something deeply wrong with our priorities.

There's been a lot of gloom and doom around here lately, and this morning seems like a good opportunity to look on the bright side of life.

• Both President Obama and Secretary of State Clinton spoke out against the Uganda anti-gay bill - at the National Prayer Breakfast! Obama used the word "odious" to describe it.
• Senator Orrin Hatch is open to repealing DADT.
• Colin Powell is not just open to the repeal, he now "fully supports" it.
• Gayle Haggard (wife of Ted) believes the government "should provide equality under the law" for same-sex couples, and to that end supports civil unions.

None of these is without qualifiers and wiggle-room. But every one of them goes against some pretty widely held notions about the public figure involved. It behooves us to acknowledge what each of them has said. That simple courtesy is an important aspect of progress.