IGF CultureWatch

Law professor Stephen Clark provides another look at why constitutional decisions voiding anti-"sodomy" laws (Lawrence) and voiding anti-abortion restrictions (Roe) "aren't conjoined twins." He argues:

Lawrence is the considerably stronger of the two and is less likely to be threatened by any separation. Pro-choice advocates have far more to gain from associating Roe with Lawrence than gay-rights advocates have to gain from associating Lawrence with Roe. Conflating the two may put Lawrence at unnecessary risk.

But failure to pledge fealty to Roe was a key reason why leading gay groups such as NGLTF and HRC condemned John Roberts, and NGLTF has already condemned Samuel Alito. No, abortion is no longer always stated up front, but it's there, lurking in the "penumbra" and "emanations" of the language about "far right extremism."

Further: Here's more in the way of constructive criticism on the failed tactics of groups such as HRC, from Washington Blade editor Chris Crain. He notes, for instance:

Last year, when Laura Bush was pressed by the media on whether she supported her husband's constitutional ban on gay marriage, her innocuous answer was that the issue was "something people should talk about and debate." Rather than welcome the invitation, HRC's then-leader Cheryl Jacques released a letter criticizing the first lady, saying there were more important issues-like the economy!-for Americans to discuss.

Sad, but all too typical, and still ongoing.

I live in Virginia. In Tuesday's gubernatorial election, the option is to vote for the Democrats/Republicans (pick one) because they're less awful than the Republicans/Democrats (pick one).

Both major party candidates for governor not only oppose gay marriage, but favor keeping adoption by gay couples illegal, although the Republican opposes gay marriage/adoption more adamantly. On the other hand, Virginia's Democratic governors always push through big tax hikes in our already extraordinarily high state tax rates in order to grow government and increase their party's base (and, more generally, government's tentacles).

I don't think self-branded gay advocacy groups, who raise money with the promise to advance gay equality, should consider non-gay issues in making electoral endorsements. But I do think private individual voters who are gay can and should consider other issues relating to the well being and prosperity of the commonwealth. My decision, in this election, is not to vote for either the Democrat or the Republican.

More: Here's an example of the political problem: Our state's outgoing Democratic governor, Mark Warner, opposed a bill passed by the Republican-controlled legislature (with bipartisan support) that not only banned anything approaching civil unions, but any legal arrangements that might bestow marriage-associated rights on gay couples.

Although Warner tried unsuccessfully to strip out the most-offensive contract-banning parts of the bill (while supporting the civil union and marriage ban), he nevertheless decided not to spend political capital on vetoing the full measure when it crossed his desk. A veto probably would have been overturned; still, it would have been a strong statement on behalf of legal equality by a popular governor not up for re-election. But gay votes for Democrats come with no price tag, so why bother?

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10/30/05 - 11/5/05

The homepage of the Human Rights Campaign prominently features a photo of Supreme Court nominee Samuel Alito, which links to HRC's rather dismissive assessment ("The Alito Record-Negatives for Gay and Transgender Americans"). [Editor's note: modified since originally posted.]

But interestingly, if you follow the press release links you find Alito's 1971 Gay Support Raises Hope, citing this AP story.

Is HRC of two minds? Or perhaps the big homepage-linked item is red meat for the membership while the press release is meant to help divide Alito from his conservative backers, which would explain this pickup of HRC's release by the religious right's CNS News. Or maybe I'm just being churlish.

In New York City's mayoral race, liberal Democrat Fernando Ferrer is running this ad against moderate Republican Mike Bloomberg. Here's an explanation from SteveSilver.net (hat tip: andrewsullivan.com.)

IGF contributing author Dale Carpenter guest blogs at The Volokh Conspiracy on same-sex marriage. This site is very popular with smart conservatives, so kudos to Dale.

By the way, Dale's posting was in response to an earlier, anti-gay marriage piece by the dreadful Maggie Gallagher. Libertarian Cathy Young has more to say about Gallagher and the debate over at Volokh, here.

First take on Bush's nomination of Samuel Alito for the Supreme Court: he's no John Roberts, unfortunately. The Advocate says that in 2001 he authored a decision that declared unconstitutional a public school district policy that prohibited harassment against students because of their sexual orientation or other factors. If we must force students into these government/educrate mis-run, taxpayer-money down-the-rathole monstrosities (known as "public education"), you'd think that policies prohibiting the bullying of gay kids, even if mostly ineffectual, would be a small positive. But noooo.

This may provide a misleading picture, or it may be an accurate indicator of who Alito is. We'll see. Harriet Miers, you're looking better and better!

Update: Some informative comments. I'm not taking a position at this point, but I do note that some civil libertarians believe the harassment policy Alito struck down was overly broad. He wrote in Saxe v. State College Area School District:

There is no categorical 'harassment exception' to the First Amendment's free speech clause....When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications.

It's also been noted that in another case, Shore Regional High School Board of Education v. P.S., Alito helped reverse a district court in order to uphold the claim of a student regularly called names such as "faggot," "gay," and "homo" that he was not afforded appropriate protection from harassment.

I'm not sure what to think, but I'm not accepting the activists' charges without further evidence. So onward to the hearings!
--Stephen H. Miller

The AP reports that Star Trek's Mr. Sulu, actor George Takei, has come out in an interview with Frontiers magazine. This continues the recent trend of late-in-life (ok, I won't say "over the hill") Hollywood B-list celebs coming clean about being gay-think Richard Chamberlain and Tab Hunter or, a bit earlier, the late Dick Sargent.

But while coming out before time passes by is now easier in the pop music world (from George Michael to Rufus Wainwright) and on reality TV (examples too numerous to mention), few successful young actors are willing to cross the line. More distressingly, while the number of gay roles in movies and TV has greatly increased, they're being played by actors who are either straight (as in Ang Lee's new "Brokeback Mountain") or closeted. Britain's Rupert Everett stands out as such an exception that he helps prove the rule.

Seeing straight actors playing gay, while I appreciate their willingness, always makes me feel queasy-sort of like watching Ricardo Montalban with heavy eye makeup playing Japanese in the film "Sayonara" back in the 50s. It was called "yellow face" and outlived the more obviously racist "black face" period. I guess we remain in the era of "gay face"- and gay actors coming out only when they have no more roles to lose.

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10/23/05 - 10/29/05

It was probably all over for Harriet Miers once the Washington Post ran the following, which armed social conservatives with more ammunition against her:

In an undated speech given in the spring of 1993 to the Executive Women of Dallas, Miers appeared to offer a libertarian view of several topics in which the law and religious beliefs were colliding in court.

"The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's [sic] right to decide for herself whether she will have an abortion," Miers said.

Those seeking to resolve such disputes would do well to remember that "we gave up" a long time ago on "legislating religion or morality," she said. And "when science cannot determine the facts and decisions vary based upon religious belief, then government should not act."

Any Republican that anti-gay snip David Frum would vehemently oppose is probably OK in my book. But the social right has done her in despite her strong history as a pro-business litigator, while liberals actually seemed to hope for a far worse alternative they could more easily demonize for fundraising purposes. They'll probably get their wish.

Update-Hypocrites Alert. NGLTF, which would certainly have opposed Miers' confirmation (and that of any other nominee who did not swear fealty to Roe v. Wade), is shedding crocodile tears over her withdrawal. Ditto HRC, the large abortion-rights lobby that targets gay and lesbian donors.

IGF contributing author Dale Carpenter knows that the gay left chorus which shouts "bigots, bigots, go away" at conservative critics of gay marriage accomplishes little. Instead, he is engaging in an exchange of ideas (what a thought!) with conservatives fearful that gay marriage will irrerparably fray the social fabric. Carpenter argues quite forcefully the opposite is true, in his just posted piece for the conservative National Review Online, "The Bonds of Common Ground: Ten Areas of Agreement Among Conservatives on Marriage."

Carpenter's basic premise:

marriage would benefit gays, generally by encouraging long-term commitment among gays and particularly by settling gay men. It would therefore benefit our whole society.

In this, he echos Andrew Sullivan and Jonathan Rauch, whose take on "A Traditional Gay Wedding" we recently posted. Likewise, IGF contributing author John Corvino has been on the lecture circuit debating marriage with Focus on the Family--which is what GLAAD and other well-funded gay advocacy groups ought to be doing, but aren't.

It's interesting to see the principles shared among conservatives (straight and gay) who believe marriage is the bedrock of social stability and as such must be defended and promoted. In contrast, too many arguments advanced by gay activists deal with expanding "equal rights" and obtaining access to "government benefits." Those aren't irrelevant concerns, but the heart of the matter must firmly be on recognizing the value of marriage per se, and strengthening the institution by bringing gays under its fold.

In 2000, Matt Limon, an 18-year-old Kansas youth, received a 17-year prison sentence for having consensual sex with a 14-year-old friend. If his friend had been a girl, the maximum sentence would have been 15 months.

After five years suffering in prison, Limon will soon be free, thanks to a Kansas Supreme Court decision which (after many delays) ruled that the federal Supreme Court's 2003 Lawrence v. Texas decision forbids disproportionate sentences for gays based on "moral disapproval" and anti-gay animus.

Why has the legal process taken so long to grant justice to Matt Limon? After Lawrence, the Kansas intermediate court that rendered the Limon verdict was ordered to revisit its conclusions. However, the intermediate court ignored Lawrence because it had been decided on "privacy" grounds, whereas the Limon case involved equal protection. The Kansas Supreme Court eventually reduced Lawrence to its facts and struck down the disproportionate sentencing.

As you may recall, Justice Sandra Day O'Connor, in her Lawrence concurring opinion, rejected the privacy contention and, instead, based her decision on equal protection. I felt then that equal protection, especially if it had been the majority's basis, would better serve gays in future cases. Even non-gay specific sodomy laws could have been overturned under this standard on showing they were disproportionately applied to gays (as they were). But many, in the thrall of the need to defend abortion rights premised on the privacy contention behind Roe v. Wade, felt otherwise.

The Kansas ruling for Matt Limon is simply more evidence that equal protection, not privacy/Roe, will be the way forward.

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10/16/05 - 10/22/05