IGF CultureWatch

What a Difference a Day Makes! Lott's toast. And it looks like Sen. Bill Frist of Tennessee is poised to take his place as Senate Majority Leader. This would mean the leadership spot goes from a senator who publicly held that homosexuality is a "problem just like alcohol...or sex addiction...or kleptomaniacs" to a senator who happily embraces the Republican Unity Coalition's call for a gay-inclusive party. Here's an excerpt from Hastings Wyman's Capital Letters column from last May about a fete put on by the Republican Unity Coalition, which calls itself "A gay-straight alliance of Republican leaders, working to encourage tolerance and to address concerns of gay and lesbian Americans" :

Among the gay Republicans and their guests snapping up the crab dumplings and caviar toasts were such usual suspects as Congressman Jim Kolbe (R-Ariz.) and District of Columbia City Councilman David Catania (R), as well as one not so usual - Tennessee Sen. Bill Frist (R), who chairs the National Republican Senatorial Committee. I asked Frist how come a straight Dixie Republican felt comfortable mixing it up with a bunch of avowed homosexuals. After acknowledging with a grin that "Trent Lott (R-Miss.) wouldn't be here," he thought a minute, then said, "Maybe it's my medical background" - Frist is a cardiovascular surgeon - "It's just not an issue with me."

Keep your fingers crossed on this one!
--Stephen H. Miller

Gay Politics Through the Looking Glass. First off, let me say that there are some good libertarian arguments for why private-sector anti-discrimination laws aren't such a wonderful idea after all -- from infringing on the basic liberty of employers to hire and fire as they so choose (hey, it's their business), to creating a disincentive to hiring anyone in a protected category (for fear of frivolous, but expensive, litigation). I"m not sure I buy into the libertarian view, but it does suggest that countering discrimination by our government in the area of government employment (including military service) and government-granted benefits (including the ability to legally marry) should at least be a higher priority.

That being said, I think it's revealing what's just happened in New York State, where on Thursday the GOP-controlled state senate passed a statewide gay rights bill to protect gays and lesbians from private-sector discrimination. The bill had previously passed the Democratic-controlled assembly, and will now be signed by a GOP governor. But, as I previously noted, not everyone is happy; transgender advocates and their gay supporters called for the bill's defeat because of its focus on gay, but not transgender, protections.

The New York Times reports that a last-minute amendment to add protections for transgenders -- ranging from heterosexual cross-dressers to people undergoing sex-change procedures -- failed 19-41. Yet when the bill, minus the amendment, came to a vote, Senate Majority Leader Joseph Bruno, a Rensselaer County Republican, voted for passage, as did 12 other Republican senators. "The time has come to move on in our lives put this behind us," Bruno said before the vote. "People can live their lives the way they see fit."

But, the Times continues:

opponents included both religious organizations and transgenders, who argued a nondiscrimination bill was also needed to protect them. "I think it would be an absolute and utter tragedy if this passes" without protecting transgender rights, said Charles King, co-president of Housing Works. New York City resident Melissa Sklarz accused Empire State Pride Agenda [the state's main gay rights lobby] of abandoning transgenders. "They have closed the door on us time and time again," she said.

Matt Foreman, executive director of the Empire State Pride Agenda,

said he had doubts about its passage less than an hour before debate started. On Sunday, he counted only eight Republicans in support of it. He credited behind-the-scenes lobbying by [Gov. George] Pataki and Bruno with swaying enough Republicans to win passage of the measure.

So those on cultural left wanted to see the measure defeated rather than having to endure an incrementalist approach to their agenda, while Republican leaders twisted arms to ensure the bill's passage -- politics through the looking glass indeed!
--Stephen H. Miller

Conservative Double-Standard. The letters section of today's (Dec. 13) Wall Street Journal leads off with an excellent dispatch from the Cato Institute's Roger Pilon, headlined "The Complexities of 'Unfair Discrimination'" (alas, the WSJ in online only to subscribers). Pilon takes the Journal to task for its Dec. 3 editorial urging the Supreme Court to strike down state affirmative action statutes but not to find state sodomy laws unconstitutional. Writes Pilon:

Trouble is"the arguments that compel the court to strike state affirmative action programs apply equally to state sodomy laws. ... If affirmative action is unconstitutional because it unfairly discriminates, so too is the Texas [sodomy] statute".

Pilon then takes up the issue of sodomy laws in general, citing not the "privacy right" claimed by many sexual freedom advocates, but the 14th Amendment's Privileges or Immunities Clause:

which was meant to protect, among other things, the freedom and personal integrity of the individual." We have here, in short, nothing more complicated than "the right to be left alone," as Justice Brandeis famously put it. If the Constitution does not protect that, we have been sorely misled about its stature.

Take that, WSJ editorial writers!
--Stephen H. Miller

Why They Won't Take "Yes" for an Answer. For 30 years, gay advocates in New York State have tried to add "sexual orientation" to their state's human rights law in order to protect gays from discrimination in employment, housing and education. This year, they"re finally poised to succeed. GOP Governor George Pataki has not only promised to sign the Sexual Orientation Non-Discrimination Act passed by the Democratic-majority state assembly (the legislature's lower house), but he's pressed leaders of the GOP-controlled state senate to finally come onboard as well. The senate leaders agreed to bring up the measure next week and to support its passage without amendments, which will prevent anti-gay conservatives from planting "poison pills." So naturally, some gay "progressives" now feel compelled to turn against the measure they"ve championed -- and used as a fundraising and mobilization touchstone -- for the last three decades.

As Jonathan Capehart writes in the New York Daily News, openly gay state senator Tom Duane of Manhattan and his allies in the Democratic leadership are behind this effort. If memory serves, while a member of the New York city council Duane was part of an effort to block the city from buying public kiosk restrooms for its streets -- because the handicapped wouldn't be able to use them. No compromise for these folks; it's perfection of zilch. Of course, a more cynical view is that if they stop the gay-rights bill in favor of a transgender-inclusive replacement with minimal chance of passage, or if -- by opening it up for amendments -- they allow conservatives to scuttle it, the gay politicos can continue mobilizing their base by playing the victim card for another 30 years.

Sodomy Laws vs. Limited Government. Attorney and scholar Glenn Harlan Reynolds (of instapundit fame) has penned an excellent op-ed making a conservative argument for barring sodomy laws. He writes that the Framers of the Constitution "may not have been libertarians, exactly, but they certainly were not enthusiastic regarding untrammeled government power at either the state or federal level." Moreover, referencing the words of 19th-century Supreme Court Justice Joseph Story, often cited by conservative jurist such as Robert Bork (no friend of gays, to be sure), Reynolds writes:

In other words, where laws infringe on important rights like property or "personal liberty," the very "nature of republican and free governments" may offer some restraint, even in the absence of specific constitutional language barring such laws. And this is not because of some fancy new right, but because of longstanding principles that the government should not regulate conduct that causes no harm to others.

These are the kinds of conservative-appealing arguments the sodomy-repeal attorneys will need to put forth if they want to win the votes of the non-liberal Justices on the Court. Let's hope they do.
--Stephen H. Miller

The Troglodyte. Senator Trent Lott (R-Miss.), the once and soon-to-be-again Senate Majority Leader, is in hot water -- and deservedly so -- for failing to censor himself during a birthday bash for retiring centenarian Sen. Strom Thurmond (R-S.Carolina). Lott joked that the country would have been better off if Thurmond had won the presidency in 1948, when he ran on the break-away "Dixiecrat" segregationist ticket. Said Lott:

"I want to say this about my state: When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead we wouldn't have had all these problems over all these years, either."

Those in attendance reportedly gasped.

The story has been widely reported, but most accounts failed to draw a connection with another significant Lott gaffe, back in 1998, when he compared gays with alcoholics and kleptomaniacs. Said Lott then, when asked his view about homosexuality:

"It is [a sin]....You should try to show them a way to deal with that problem, just like alcohol...or sex addiction...or kleptomaniacs."

Trent Lott is not a fire-breathing hater, nor is he an unreconstructed segregationist. Often it seems he doesn't even realize the implications of what he's saying. Nevertheless, unlike George Bush's amusingly twisted syntax, Lott's remarks convey a political worldview that is rather scary. So why is this man honored with the powerful position of Majority Leader? For fear of losing white GOP votes in the "solid South," I suspect. But the way forward is not tethered to the bigotries of the past, and if the GOP wants to be the majority party of the future it will have to come to terms with that fact.
--Stephen H. Miller

Speaking Their Language. The Orange County Register ran this editorial making a libertarian argument for why the Supreme Court should hold sodomy laws unconstitutional. The editorial reads in part:

So sodomy laws are objectionable in a free society. But are they forbidden by the U.S. Constitution? Roger Pilon, director of constitutional studies at the Cato Institute, thinks so.

The first clause he cites is the 9th Amendment, which says in its entirety: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That was included in the Bill of Rights to remind us that just because the framers hadn't mentioned an individual right didn't mean people didn't have it. In that reminder can be found a right to privacy, to sexual freedom, or the more general right of a free citizen to be left alone by government if he or she is not harming another person.

Mr. Pilon also believes the 14th Amendment, which states in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," forbids laws that intrude into private bedrooms. "That clause was meant to be the principal font of rights against the states, to protect the freedom and personal integrity of the individual," he told us. Justice Clarence Thomas has been especially interested in the "privileges or immunities" clause as a guarantee of individual liberty, and he could use it in this case to good effect.

Too often gay activists, who"ve come of age in the cocoon of liberal-left culture, don't understand that conservatives and libertarians not only don't view the world through the same lens as liberals do, but neither speak nor respond to the same rhetorical language as liberals. That may be one reason why when a sodomy-law case last came before the Supreme Court, 16 years ago, gay advocates failed to convince a conservative-leaning court that repeal wouldn't be just one more example of liberal judicial activism beyond the intent of the Constitution. Let's hope this go-round the pro-repeal lawyers will be able to argue the case in a way that can sway conservatives. It can be done, and Cato's Roger Pilon is perhaps showing the way.

A British Example. The British newspaper The Guardian reports that Tony Blair's Labour government will propose recognizing same-sex "civil partnerships" and granting these the same rights given to married couples (though civil partnerships would remain a separate category from "marriage"). Significantly, a leading Conservative Party figure says Conservatives will support the plan:

The shadow home secretary, Oliver Letwin, indicated that the Conservatives would support the measure when legislation was introduced. "Whilst we attach a huge importance to the institution of marriage we do recognise that gay couples suffer from some serious particular grievances," he told BBC Radio 4's Today programme. "If what the government is coming forward with is indeed a set of practical steps to address a set of practical problems that affect people, then we will welcome them."

And in America we"re still debating whether homosexuality should remain a criminal act!

But What About the Transgendered? I do have one pet peeve about the reporting of the above story by The Guardian. It begins:

Gay men, lesbians and bisexual people are to be offered the same rights as married couples, a government minister indicated today".

But really, isn't including "bisexuals" a bit of a stretch? If they"re in an opposite-sex relationships, they already have the right to marry. If they"re in a committed same-sex partnership, then it's a gay relationship. Referencing bisexuals in this regard seems like politically correct sophistry.

The Race Card. IGF contributor Rick Rosendall authored a brave column (it ran in Boston's Bay Windows and elsewhere) on racial guilt-mongering in the corridors of the gay left. Writes Rick of a recent National Gay & Lesbian Task Force conclave, which included sessions for people of color only:

The preferred mode of communication at Creating Change resembles not conversation but emotional hostage taking. It is for the designated victims to harangue, and for the rest to pander. Each year the ritual starts all over again, as if for the first time.

NGLTF's Sue Hyde responded with a letter arguing that:

There are LGBT people of every color, ethnicity, class, age, race, condition of birth and gender who are joining together to make a stronger, more powerful and more fully representative movement for social justice, equality and freedom. Some of the work to build this movement will be accomplished when the voices of women, young people, people of color, old people, transgender people and intersex people can be heard more clearly, which logically requires that they be given the space, the time and respect to hear themselves first.

Listen, I don't doubt that the diversity-first crowd is sincere in its ideological beliefs and actually thinks all of this is somehow "progressive." But the ceaseless laundry-listing of victimized subsets leads not to a unity of the many (which requires a focus on commonality despite differences), but to seemingly endless balkanization and a competition to see who can exhibit the greatest wounds. This has never been healthy.
--Stephen H. Miller

In America? Columnist Steve Chapman has an excellent piece in the Chicago Tribune (free registration required) on the sodomy law case now before the Supreme Court. He writes:

One night four years ago, sheriff's officers -- entered the dwelling and barged into a bedroom. But all they found was a couple enjoying a pastime commonly enjoyed by couples in their bedrooms, and I don't mean organizing the closet. You might guess that at this point, the cops would have blushed, apologized and left as fast as their feet would carry them. Wrong. They arrested the couple under the Texas anti-sodomy statute. "

For [Tyron] Garner and [John] Lawrence, there was the indignity of being jailed, hauled into court and fined for consensual acts carried out in private. On top of that, their lawyers note, they are now disqualified or restricted "from practicing dozens of professions in Texas, from physician to athletic trainer to bus driver." If they move to some states, they'll have to register as sex offenders.

And there are those who claim these laws have no real impact on our lives.

Shareholders Rule. Lockheed Martin Corp. is one of the world's largest defense contractors with some 125,000 employees. That's why it's significant that the company has now changed its employment policy to include a ban on discrimination based on sexual orientation, and will also begin offering domestic partnership benefits sometime next year. According to the Rocky Mountain News, thanks goes to an ambitious group of college students who lobbied Lockheed's shareholders.

In another corporate development, the board of CBRL Group Inc., the parent company of Cracker Barrel Old Country Stores restaurants, has voted to add sexual orientation to the company's non-discrimination policy. As reported on the Gay Financial Network site:

Cracker Barrel drew national attention in 1991 when it instituted a company policy that called for terminating employees "whose sexual preferences fail to demonstrate normal heterosexual values which have been the foundation of families in our society." At least 11 workers were fired as a result.. -- [But this year] A shareholder proposal to add sexual orientation to the company's non-discrimination policy would have received a majority of the votes cast Nov. 26.

Remember whenever you hear corporations vilified as dark, nefarious powers unto themselves that not only do they need to please the consuming public in order succeed, but they are also owned and ultimately responsive to the will of their shareholders, who can organize, petition, and vote for policy changes. Talk about "economic democracy," we have a far higher degree than ever existed under state socialism!
--Stephen H. Miller

Defending the Indefensible. How many right-wingers are willing to argue that gay sex should be outlawed and sexually active gay people prosecuted and sent to prison? Probably not many, but count on a good number trying to support sodomy laws (now once again before the Supreme Court) as serving some useful function, such as "upholding morality," while not actually encouraging that they be effective enforced. Still others will hold that it's a matter best left to states legislators, as if there were simply no federal Constitution to provide equal legal protection to a subset of the citizenry disliked by local bigots.
Already, we"re seeing headlines such as "Governor defends ban of same-sex intercourse," wherein Texas Gov. Rick Perry said of his state's law to punish same-sex couples for having sex, "I think our law is appropriate that we have on the books." Then why not really enforce it, Governor?

Wrong About Everything. The New York Times has a story today about Justice Lewis Powell, who during his time on the Supreme Court managed to consistently oppose the fundamental principle of equality before the law and equal treatment for all by the state and its institutions (that's my take, not the opinion of the Times!). Of Powell, who died in 1998, his

embrace of racial diversity as a valid goal in [state] university admissions, expressed in a solitary opinion in the 1978 Bakke case to which no other justice subscribed, not only established a rationale for affirmative action but frames the current debate a generation later.

Powell was also the deciding vote in Bowers v. Hardwick, the sodomy law case. His fellow liberals expected a supporter of race-based preferences to side with them. But Powell, we're told by the Times, had

no personal experience with gay rights and found the issues raised by the case confusing and somewhat threatening. "I don't believe I've ever met a homosexual," he told one of his law clerks while the case was pending. "[T]he law clerk, who in fact was gay, told the justice, "Certainly you have, but you just don't know that they are." "

A book published last year on the history of the gay rights issue at the Supreme Court, "Courting Justice," by Joyce Murdoch and Deb Price, asserted that there have been at least 22 gay law clerks at the court, and that in each of six consecutive terms in the 1980's, one of Justice Powell's four law clerks was gay. "Doubts still gnaw at Powell's ex-clerks about whether they could or should have done more to educate him," the authors wrote.

And indeed they should have.

For what it's worth, Powell later indicated he had probably erred.

On rereading the case, "I thought the dissent had the better of the arguments," he told a reporter in 1990.

That and a buck fifty will get you a cup of coffee. Thus, the legacy of liberal Justice Lewis "through in the towel" Powell, supporter of university admissions by skin color, and of sodomy laws -- two issues once more before the High Court, which has a chance to set right what it previously did so wrong.
--Stephen H. Miller

Supreme Court to Get It Right -- at Last? Back in 1986, in its infamous Bowers vs. Hardwick decision, a deeply divided U.S. Supreme Court ruled states may criminalize consensual, non-commercial same-sex behavior among adults -- even in the privacy of their own bedrooms. This appalling miscarriage of justice put up a major roadblock to full legal equality for gays and lesbians. Now, after 16 years, the Court has finally agreed to revisit its ruling.

Much has changed over those years. Today, just four states (Texas, Kansas, Missouri and Oklahoma) punish only homosexual sex, while nine states ban consensual sodomy for everyone -- although prosecution is generally limited to those unfortunate gay couples who are, for whatever reason, "caught" (i.e., straights doing it in a parked car are told to move along; gays get arrested and a criminal record as sex offenders). But the problem isn't really actual arrests for private sex. Rather, because these laws make sexually active gay people into criminals per se, they are used to justify all manner of government discrimination -- from denying child custody or even visitation rights (some state courts have told a divorced gay parent to jettison their lover or stop seeing their child), to preventing gays from becoming cops, to prohibiting same-sex couples from seeking the benefits states provide to opposite-sex couples. If the Court reverses itself and finds state sodomy statutes are unconstitutional, it will be much harder to deny gay citizens the rights of other Americans. If it goes the other way, it will be a huge setback. Stay tuned...

Addendum: I should have mentioned that the Lambda Legal Defense and Education Fund is spearheading the case before the Supreme Court -- especially since I recently criticized them for their over-wrought protest against Miss America (triggered by her support of pro-abstinence education).
--Stephen H. Miller

Good News! More Sex; Less Lies. A new Centers for Disease Control survey of American men finds that more men say they are having sex with other men than in the 1980s. As Reuters reports:

surveys collected since 1996 showed between 3.1% and 3.7% of men reported having sex with another man during the past year. This is a sizeable jump from 1988 estimates of between 1.7% and 2% "

Of course, this 3.1% to 3.7% of American maledom should be viewed as a minimum baseline, since many MHSWM (men having sex with men) won't admit it. In the words of the CDC's Dr. John E. Anderson, who co-authored the report: "Male-to-male sex is still a sensitive, stigmatized behavior, and...is likely to be underreported to some unknown degree. Even though these recent estimates are somewhat higher than other surveys, they probably are still low." No kidding. (Plus, the survey wasn't intended to count those gay people who don't happen to be sexually active.)

Another survey finding: attitudes about the acceptability of same-sex activity have also improved:

between 1996 and 2000, up to 34% of survey respondents said they believed homosexuality was generally not wrong, while only 24% of people who completed the survey between 1988 and 1994 had similar attitudes toward same-sex activity.

Can anyone doubt that these trends will continue to do anything but rise, with significant socio-political ramifications for issues such as same-sex unions?

Breaking Up Really Is Hard to Do. Couples who were legally united via a civil union in Vermont are finding they can't dissolve their unions if they reside in other states, leaving them in a kind of legal limbo as regards inheritance rights and other matters. One of the problems: the federal Defense of Marriage Act and similar state statutes, which state courts interpret as barring them from ruling on same-sex union matters. As the Washington Post reports:

Outside of Vermont, civil unions are not recognized, so they cannot be ended. ... The U.S. Constitution's "full faith and credit" clause requires states to recognize "public acts, records and judicial proceedings" from other states, but the courts have never applied that to same-sex unions.

This problem will only get worse as more couples united in Vermont later seek to disentangle themselves. The answer is for other states, at the very least, to recognize Vermont civil unions as a legal contract. But that would mean they'd have to stop stigmatizing gay couples, of course.
--Stephen H. Miller