IGF CultureWatch

Attorney General John Ashcroft has authorized federal prosecutors to pursue the death penalty against a man charged with killing two women at a secluded campsite in Virginia's Shenandoah National Park -- slayings seen as an anti-gay hate crime, reports the Washington Post. Darrell Rice is charged with capital murder in the deaths of Julianne Williams and Laura "Lollie" Winans, two victims who, prosecutors have quoted Rice as saying, "deserved to die because they were lesbian whores." Since the grisly crime was committed in a national park, federal prosecution was triggered. According to the Post:

Although bias against gay people is not an aggravating factor under the terms of the federal death penalty law, prosecutors are permitted in general to seek harsher penalties in crimes that are shown to be motivated by such bias. Rice's case marks the first time that prosecutors in Virginia have invoked a 1994 law making it possible to seek the harder penalties for crimes motivated by bias against gay people.

It remains to be seen if invoking the death penalty will prove controversial. In the Matthew Shepard slaying case, some gay groups that support hate crimes legislation, which increases penalties for crimes motivated by bias, also belonged to liberal coalitions opposed to the death penalty. (See, for example, Death Penalty in Shepard Case Slammed by Activists.) Even before the Shepard trial, the National Gay & Lesbian Task Force had passed a resolution opposing the death penalty as a criminal sanction because, among other reasons, they claimed it's "disproportionately applied to poor people and people of color."

The conundrum: If the penalty for premeditated murder is either life in prison or death, and if hate crime laws bump up the penalty, you wind up with death. When progressive gays support hate crime bills but oppose capital punishment (often labeling it inherently racist), it parallels their call to let gays serve in the military while opposing U.S. military action as imperialist and (again) racist. Let's add lobbying for private-sector anti-discrimination laws but finding capitalism so objectionable that corporations are condemned, for their corrupting influence, when sponsoring floats in gay pride marches. Or demanding an AIDS Cure Now while trying to limit the incentive of drug company profits. And, of course, supporting the right of gays to wed while holding that marriage is an oppressive patriarchal institution. Somehow, they don't see that you can't have it both ways.

I generally oppose hate crime laws and believe it is criminal acts that should be prosecuted, not the underlying thought of the perpetrator. As it happens, I also oppose the death penalty, but not because I think it's a tool for class oppression. In fact, I find it persuasive that executions serve some role as a deterrent. But I can't get beyond the belief in my gut that killing killers who are not currently trying to kill you is morally indefensible -- and also gives the state too much power. You may disagree with me on that, but at least my dual opposition is not inconsistent.
--Stephen H. Miller

Syndicated "Lesbian Notions" columnist Paula Martinac took both myself and IGF contributing author Dale Carpenter to task in her Jan. 24 column "Speak Out Against War." Martinac quotes me as labeling those who question American foreign policy as "extremist, infantile, America-hating whiners." What she doesn't say is that my remarks are from an essay titled "What's Left?" published one month after the Sept. 11 attacks. I was castigating ad hoc groups of leftwing gays who had taken to the streets against America's pursuit of Al Qaeda terrorists and the liberation of Afghanistan from Taliban rule. While I am also critical of gay groups that recently joined the coalition against military action in Iraq, I have not done so with language as harsh as I used to describe protestors who blamed America for Sept. 11 - a fact Martinac obscures so she can dismiss my views as anti-anti-war extremism.

Meanwhile, the National Gay and Lesbian Task Force, which recently announced its anti-war position, is spending time and energy defending itself against those even further to the left who accuse it of not being anti-war enough. And the Audre Lorde Project (which describes itself as a center for Lesbian, Gay, Bisexual, Two Spirit and Transgender people of color communities) and the LGBT Programs Community Relations Unit of the American Friends Service Committee have been sending a statement around the Internet that reads in part:

we know that militarism and war rely on and promote many forms of oppression -- including homophobia, transphobia, sexism, and racism. As LGBTST people, we know what it means to be targets of hate and violence. We understand what it means to be scapegoated. -- With care and respect, we call on LGBTST organizations and communities to join national and local coalitions to struggle for peace with justice -- and actively and creatively oppose U.S. policies and actions of military/economic/political aggression and war.

You see, I don't demean, I just let the gay left speak for itself. ("Two-spirit," by the way, is what the politically correct crowd now considers acceptable labeling of Native American gay folks.)

Less Regulation, More Gay Inclusion

Back in the real world, Virginia Log Cabin spokesman David Lampo has this op-ed published in the Richmond Times-Dispatch, arguing that Virginia law hurts the state's economy by prohibiting (yes, prohibiting) private businesses from granting health insurance to anyone who isn't the spouse or child of an employee, effectively barring benefits for same-sex partners. It's another case where government isn't the solution, it's the problem, holding back a private sector that wants to move forward.

Also in a libertarian vein, IGF contributing author David Boaz has an op-ed exposing the pro-choice hypocrisy of some big-name Democrats running for president. He writes:

what question of choice -- other than abortion -- does Gephardt think should be answered "not by the state but by the individual"? Like Kerry, he opposes Social Security choice, school choice, and the right of individuals to choose what drugs they will use, either for medical or recreational purposes. He voted to deny gays and lesbians the right to marry the person they choose.

Meanwhile, our friends on the left dream of an even more intrusive regulatory state that would, of course, only do good, progressive things. Naturally.
--Stephen H. Miller

Recent Postings

01/31/2003 -- 01/26/2003

01/23/2003 -- 01/20/2003

Gloria Steinem doesn't get "The Hours." Neither do her critics. The Oscar-contender, based on the prize-winning novel by Michael Cunningham, is a meditation on Virginia Woolf's novel "Mrs. Dalloway" and, for most folks, a thought-provoking two hours of cinema -- unless you happen to be an ideologue of left or right. Writing in the Los Angeles Times on Jan. 12 (not available without a fee), all Steinem sees is feminist propaganda, which makes her glad. She's especially fond of the storyline set in the 1950s about a suicidal housewife trapped in suburbia with spouse and child (and another one on the way) -- prime Steinem territory. She writes:

"Some male moviegoers emerged bewildered about why Laura wasn't happy with just her nice house, nice marriage, and nice son -- as if they would have been."

This provoked conservative columnist Rod Dreher, writing in National Review Online to comment:

"Well, call me a caveman, but yes, I did wonder why Laura (Julianne Moore)"with a loving husband and a small boy who adores her, was made so miserable by her existence.... It's telling that Steinem"assumes that all women naturally understand Laura's decision (guess what, they don"t)."

I"m not going to give away Laura's "decision," put you get the point. Dreher, who labels the film an "apologia for evil," buys Steinem's interpretation and rejects both the film and Steinem.

But neither grasps the movie I saw. Consider the two other storylines in the film. In the earliest, Virginia Woolf (Nicole Kidman) has been free to rebel against Victorian repression with her Bloomsbury Set colleagues and a husband who is willing to sacrifice his own career to support her life of artistic self-expression. She's miserable and suicidal. In the present-day story, Clarissa (Meryl Streep) is a lesbian mother (via a sperm donor) with a loving partner (Allison Janney) and a rewarding career as a Manhattan literary editor who throws parties for the avant garde. She's miserable and suicidal.

If Laura is depressed because 1950s conformism clashes with her, as they say, lesbian tendencies, Clarissa is unhappy because, as it turns out, the true love of her life was a poet, Richard (Ed Harris), who after one blissful summer left her for a man. In sum, the film, like "Mrs. Dalloway," is a reflection on why people can't be happy, always pining for what they don't have or think they"ve lost. Ultimately, Clarissa in the movie, as with her namesake in Woolf's novel, finds that it's the small, fleeting happinesses of life that are to be treasured.

But if Gloria Steinem wants to see a feminist anthem, and if Rod Dreher wants to condemn it as such, then I hope they enjoy themselves. But they've missed out on a truly interesting film.
--Stephen H. Miller

Recent Postings

01/31/2003 -- 01/26/2003

01/23/2003 -- 01/20/2003

Much press coverage last week about the withdrawal of Jerry Thacker -- the head of a Christian right AIDS ministry who had been nominated to the presidential advisory AIDS council, and then withdrew under pressure when it came to light he had called AIDS a "gay plague" and referred to the gay "deathstyle." As reported in an article by Carolyn Lochhead in the San Francisco Chronicle:

White House spokesman Ari Fleischer quickly and adamantly disavowed Thacker's views and his nomination, saying the selection was not made at the presidential level but came instead from the Department of Health and Human Services.

Let's also point out that of the 7 new nominees to the 35-member advisory council, 4 are openly gay -- including long-time Log Cabin Republican activist David Greer.

This White House is trying to both court gays in a subtle way and still placate the religious right, and sometimes you just can't do both. But when push comes to shove, they are distancing themselves from bigotry even at the cost of upsetting religious conservatives, and that's a major development. If you think my observation na"ve, read this attack on Bush by the American Family Association, Bush White House, Clinton White House ... No Difference on Homosexuality. According to this prominent religious conservative group, the Bush Administration is accused of "having a blind spot on an issue of critical importance to Christians: the homosexual movement," as evidenced most recently by its failure to support Thacker:

presidential spokesman Ari Fleisher publicly condemned Thacker, saying his views are "far, far removed from what the president believes," that the president has a "totally opposite view," and that Bush did not choose Thacker personally.

AFA chairman and founder Don Wildmon says while he was disappointed in the turn of events, he was more surprised at how quickly they happened.

"The homosexuals raised an objection, and Mr. Thacker was gone -- and that really surprised me," he says. "I was surprised by the strong comments from the White House saying the president did not share any of the views that Mr. Thacker holds."

Wildmon says he is tired of the apparent powerful influence exercised on the president by the Log Cabin Republicans, a homosexual lobby group -- and is concerned the Thacker incident could be a signal that the Administration may cave in to demands for pro-homosexual legislation. The White House, he says, is misguided in its attempts to appease homosexuals.

More evidence of the new thinking: Last week, the Washington Post reported that Peggy Neff, the lesbian partner of a woman killed in the Sept. 11 terrorist attack on the Pentagon, has been awarded more than $500,000 from a federal fund created to compensate victims:

Unlike gay couples in New York, Neff was not eligible for state aid from Virginia. Virginia law limits the benefits to spouses, parents, grandparents, siblings and children. But the master of a federal fund established by the Department of Justice after the terrorist attacks concluded that Neff, who is in her mid-fifties, was entitled to compensation.

"This is a huge step forward for the federal government," said Jennifer Middleton, an attorney for the Lambda Legal Defense and Education Fund, which represented Neff.

Under a GOP administration, the federal government is increasingly recognizing that gays deserve to be given equal treatment. Much remains to be done, of course (the military and partnership recognition/marriage being the biggest hurdles), but the whines of our opponents are warranted; we"re continuing to move forward at a pace many activists had doubted was possible.

California attorney David Link, an IGF contributing author, emailed to support Lambda Legal Defense's brief in the Lawrence sodomy law case (after I had taken Lambda to task for citing Roe v. Wade as a precedent). David writes, in part:

Amicus briefs can (and should) be much more focused than the briefs of the parties, which have an obligation to address all the legal issues in the case. ... [T]he substantive due process issue is necessarily implicated if we want to have the court overturn Hardwick -- since it was based on substantive due process.... The court could distinguish Lawrence from Hardwick on equal protection grounds, leaving Hardwick standing, but applying to all sodomy laws as long as they treat all citizens equally irrespective of sexual orientation. That's one way to go.

But some think the better approach is to have the court overturn Hardwick entirely, and that requires addressing the question of constitutional privacy. (Unless, of course, the court were to strike off on some completely novel direction, like a more narrow focus on constitutional liberty, which, I think, is unlikely from this court). Thus, Lambda had a responsibility to brief the right to privacy, and that logically includes Roe. It would be possible to cite all the other privacy precedents, from Griswold v. Connecticut on, skipping over Roe, but that would be disingenuous. I think I'm safe in saying that the members of the US Supreme Court would probably be smart enough to notice the elephant that isn't in the room.

Well stated, but as a non-attorney court-watcher I still have doubts. I replied as follows:

It's been said that the majority in Hardwick delivered the opinion they wished they could have given to overturn Roe. If anything, Roe's reasoning is held to be even more suspect by the court majority today. So it sure seems like an extremely bad tactical move -- and really, for what end?

O"Connor and Kennedy may not want to unleash the furies by overturning Roe, but they certainly hold its reasoning in disdain and don't want to grant Roe any added credibility. And the response from Thomas, who some felt was reachable with limited-government-intrusion arguments (as in the Institute for Justice amicus brief, which argues for overturning Hardwick without staking a claim to the elusive "privacy right") would be likely to react even more negatively. So from this layman's perspective, it was a firecracker that shouldn't have been tossed.

I realize the folks at Lambda are extremely dedicated and hardworking. But their staff attorneys, with only a few exceptions, are from the liberal to left side of the spectrum, as they too often demonstrate. Wooing the center-right justices should have been the obvious goal, but one that may have clashed with their cultural milieu (i.e., NARAL and pals), so I stand by my criticism.

By the way, Lambda Legal Defense's website now includes its brief as well as all supporting amicus briefs.

To tell the truth, I couldn't bear to read what the National Gay and Lesbian Task Force, National Center for Lesbian Rights, Human Rights Campaign, People for the American Way, Puerto Rican Legal Defense and Education Fund, AFL-CIO, and other activists on the liberal left had to say to the court, but I doubt they've presented arguments that might effectively convince conservative justices to find sodomy laws unconstitutional. Far more likely, they"ve compiled legal theorizing that's anathema to the center-right swing votes on the court, but red meat to their own members and donors.
--Stephen H. Miller

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.

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.

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

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.

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