IGF CultureWatch

The House-passed health care bill included one decent provision that would have extended the payroll tax exclusion on employer-provided health benefits that spouses receive to domestic partners. The New York Times described it here. But despite the Senate bill running to an amazing 2,074 pages in which all sorts of social engineering are hidden, with a less-strict abortion-funding ban than in the House bill, there is apparently no provision for remedying the tax inequality faced by gay spouses and partners.

So despite raising taxpayer costs by at least $1 trillion and imposing costs on businesses and individuals of another $1.5 trillion, in its 400,000 words Harry Reid couldn't find a sentence or two for equality under the law.

Did the voters make opposite-sex marriage illegal in Texas? That's what Barbara Ann Radnofsky claims, and there's reason to take her argument seriously.

She's running for Attorney General in that state, and when you read the amendment passed in 2005, her analysis is pretty cogent. The voters in Texas, swept up in Karl Rove's anti-gay marriage fever, amended their constitution to say that marriage is between one man and one woman. They then added this belt to the constitutional suspenders: "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

Heterosexual marriage is not just "similar" to itself, it is (by definition) "identical" to itself. It's not only hard to argue with that proposition, as a logical matter it's pretty close to impossible. Therefore, a plain reading of this language would mean that Texas is prohibited from recognizing heterosexual marriage.

But Kelly Shackleford, president of the Liberty Legal Institute in Plano says this argument is "silly." And I have to agree with her. Only conservative legal thinkers follow the plain language of a statute, and who could accuse Texas voters of being conservative? Them's fighting words. Everyone knows that in Texas, they favor the liberal, Let's Look At What The Voters Really Meant kind of statutory analysis. Words and their plain meanings are for sissies.

OK, I kid Texas (as Bill Maher says). But I still have to side with Shackleford over Radnovsky. It truly is "silly" to think that Texas heterosexuals would discriminate against themselves. Of course they meant only to discriminate against the homosexual minority. Who could seriously think they had anything else in mind? Any other conclusion would be a slander on the good name of Texas Prejudice.

I've obviously been in a foul mood since Maine, and needed some good cheer. So Karen Ocamb's interview with Charlie Beck, the new chief of the L.A. Police Department couldn't have come along at a better moment.

As Stuart Timmons has documented, L.A. has a long history of pretty brutal police harassment against lesbians and gay men. That has been fading into the dustbin of history, and Beck embodies the view that is slowly but inevitably deflating our opponents.

Ocamb asks him, right off, whether he thinks sexual orientation is chosen or innate. His response is profound only because it's so matter-of-fact: "Sexual orientation is formed long before you have the ability to make a choice. I'm heterosexual and I never made that choice." He comfortably discusses an uncle who'd been with his partner for fifty years ("Imagine what they went through"), and chuckles about whether he should tell her how he voted on Prop. 8, ultimately saying, "I support gay marriage."

Compare those last four words with the hundreds it took poor Melody Barnes to almost confess the same sentiment in Boston. That is Maggie Gallagher's greatest challenge -- an emerging epidemic of common sense. Frank Schubert has been clear how hard he needs to work to create fear in his campaigns against us, and his partner, Jeff Flint, was brutally honest in confessing that even they're surprised at how easy it is for them to win, even when we outperform them, as we did in Maine.

But that's only because they can exploit existing prejudice, and eagerly do. We're the ones who have to fight uphill. Prejudice is what confounds common sense. Once heterosexuals can get past that - can see our sexual orientation as forming in the same way as theirs does ("I'm heterosexual and I never made that choice") the distortions that bias creates melt away.

Charlie Beck seems to have that common sense. Bit by bit, it's breaking out all over the country.

This is the last straw for me. I took Americablog's pledge.

Melody Barnes seems to be a shining example of the kind of person I expected Barack Obama to surround himself with when I voted for him for President. She is Obama's Senior Domestic Policy Advisor, and Director of his Domestic Policy Council. A tape of a speech she gave at the Boston College of Law included a response to a question about same-sex marriage. When the White House got the tape, they went through the Agonies of the Damned over two full days determining whether they'd let Boston College make it public or not. Eventually the White House saw that it would be futile to try and censor it.

Like the President she works for, and so many others in the administration, Barnes is articulate, humane, self-possessed, good-humored and exceptionally intelligent. But look at the damage done to all that because of the administration's decision to side with the Catholic Church and the National Organization for Marriage. I was going to say the administration is incoherent on same-sex marriage, but it is not - the Obama administration opposes our equality.

That prevents the most senior advisors like Barnes from issuing a simple declarative sentence - "I support same-sex marriage" - even when it is clear that is her position. Instead, when asked a direct question, she has to speak in the wild circumlocutions and detours that are now becoming characteristic of this administration on this topic:

"I guess I would respond in a couple of different ways. One, I appreciate, I really appreciate your frustration and your disappointment with the president's position on this issue. He has taken a position, and at the same time, he has also articulated the number of ways that he wants to try and move the ball forward for gay, lesbian and transgendered Americans, including signing the repeal of the Defense of Marriage Act, and a whole host of other things that we've started to do to model as a leader in terms of what the federal government is doing, as well as to encourage changes both in the military, in the workplace, and certainly with regard to hate crimes."

For the record, the President's position in same-sex marriage is this: "I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman."

While that is a position, it is not an argument. Rather, it is indistinguishable from the positions (not arguments) adopted by the Vatican and NOM - which is to say, it is unchallengeable in any civic forum. And it is intended to be unchallengeable in any civic forum. References to tradition and particularly sanctification have little purpose other than to short circuit any opposition - certainly any secular opposition, which is what the President was being asked about.

So when Barnes says . . .

"when I walk into the White House . . . I work to put all arguments in front of the president, [but] as you say, I also work for the president. And we have very robust policy conversations, very robust constitutional conversations with the White House counsel, and others about these issues, and we'll see what happens from there"

. . . it's hard to believe she's talking about same-sex marriage. What policy or "robust constitutional" conversation can you have with a man who tells all of the American people in response to a secular question that his religious beliefs say that marriage is "something sanctified between a man and a woman"?

The tragedy of this - for both the President and for us - is that he knows better, and we all know that he knows better. He is presiding over the historical turning point, not for gay rights in general, but for marriage in particular, and he is stuck in reverse. The President's opposition is giving support to the very people who hate him as much as they resist us.

It says everything that the most articulate president in my lifetime - on the most controversial issues like race, the Middle East, war, and all the rest - is reduced to verbal sputters and clichés on gay marriage. That's all there is on the other side - on his side; if there were anything reasonable to argue, he'd have done so.

This has to be hard on his own conscience; he has to know that his opposition to equality will stain his legacy. But it is our lives - and the hopes we had - that he is playing with here. And it is decent people like Melody Barnes whose best is being corrupted and tortured to serve the Administration's retrograde cynicism.

Sadly, the President's party has to follow his lead. That's why I had to take the pledge, and I urge others to do so. The President is encouraging a rot in his own party, the same rot of prejudice that is invigorating the worst of the Republicans, and terrifying their best.

That is not what I voted for, and I cannot possibly support it.

Conditioning humanitarian aid, including health assistance, should always be a last resort. However, when a country that receives hundreds of millions of dollars of U.S. HIV/AIDS assistance gets busy publicly vilifying homosexuals and even threatening to put them to death, hasn't the last resort been reached?

Charles Francis thinks so. He is an openly gay former member of the President's Advisory Council on HIV/AIDS who thinks it's time to draw a line:

American lawmakers are asked to appropriate billions of dollars through the PEPFAR program to many of the countries now escalating anti-gay rhetoric into a verbal assault with threats to imprison gay Africans and NGO workers. A growing number of PEPFAR countries are considering legislative proposals to criminalize homosexuality with a death penalty, enact bans on homosexual organizations and to imprison homosexual citizens....

This is a critical juncture for PEPFAR before the world community. Will we stand by and let national governments scapegoat a sexual minority for HIV/AIDS while receiving major funding for AIDS relief? Will the U.S. fund radical, anti-gay prevention programs that could become a model for other parliaments and governments?

Read his open letter to the Global AIDS Coordinator here.

Twenty years ago, New York's highest court ruled, in Braschi v. Stahl Associates that a same-sex couple could be treated as a "family" under New York's rent control law. This was a landmark decision because at the time same-sex couples had virtually no legal recognition of any kind in New York - or any other state's - law.

I know about this because I helped Tom Coleman do legal research for a brief in Braschi that helped situate gay couples in the broad term "family" as we had just done the prior year in passing the first domestic partnership ordinance in Los Angeles. After the 1989 decision, we had every reason to believe New York would beat California in enacting statewide domestic partnership, and ultimately to marriage.

Two decades later, New York state not only does not offer domestic partnership to its homosexual citizens, it seems to have rejected any compromise other than full marriage rights, and doesn't seem interested in any political middle ground.

I hope they know what they're doing. Perhaps all the news reports are wrong, and they really do have the votes this time for full marriage equality. That would be terrific. Or perhaps they don't want to dilute the issue, keeping the arguments clearly focused on what really matters in the long-term.

But if they can't get marriage, how much longer will they leave New York state's same-sex couples with legal protections not that much different from their counterparts in Mississippi? Even New York City's same-sex couples can only claim domestic partnership rights that that include vendors licenses and visitation in NYC's prisons. One of the most vibrant gay communities in the entire world seems content, in 2009, with fewer legal rights than couples in Hawaii. Or Vermont. Or Maine.

If they pull this off, it'll be a tremendous, and long-overdue victory. But if they don't, they're making it look like the legacy of Stonewall is to do nothing but stonewall.

This story about the last-minute Democratic National Committee emails to Maine voters begging them to help out Jon Corzine in New Jersey(!), and failing to mention the referendum in their own state is, I'm afraid, a cautionary tale about the naivete (or just wishful thinking) of minority groups who depend on a single party.

Of course the DNC is going to want to help their party members, and Jon Corzine was Exhibit A of those in need; he couldn't have been more pathetic if he'd been holding a sign saying "Will Govern For Food."

In contrast, Question 1 - and, in, fact, our fundamental legal equality - was and is not a Democratic Party issue, no matter how much we try to will that into being. No matter the odds, no matter the long-term harm (and this election did us some very serious long-term harm), gay marriage in particular is electoral Kryptonite. When our marital rights are on the ballot we can count on Democrats for a laurel and hearty handshake, and a nervously articulated prior commitment elsewhere.

Why we believe otherwise is a mystery. The Democratic Party, and the President, himself, made it very clear that when it comes to elections about our rights, we're on our own. Which is not to say Democrats are our enemy, or anywhere near as harmful to our equality as the near-death wing of what was once the Republican Party. We may very well be able to squeeze some bills out of Congress, like ENDA, and that's not anything we could expect from the other party.

But on gay marriage, both parties are in perfect alignment -- with each other, and with the religious right -- wishing (and praying) it would go away.

GLAAD is encouraging people to call Comedy Central to whine about Wednesday's hilarious episode of South Park. The episode revolves around the boys changing the definition of the word "fag" to refer to irritating Harley drivers.

Not only does the episode confer a valuable public service by drawing attention to the menace posed by attention-seeking jerks who ride without mufflers, it also lets kids know that gay people are O.K., but GLAAD is all in a tizzy because the episode drops the f-bomb about a zillion times.

GLAAD even goes so far as to suggest that the cavalier use of the word "fag" in a gay-positive way in a comedy show can lead to kids killing themselves:

this year, an 11-year-old Massachusetts student named Carl Joseph Walker-Hoover, unable to endure the unrelenting anti-gay bullying and name-calling he experienced at school, committed suicide

Seriously? They are going there? Are they really suggesting that there is no difference between a joke about the word "fag" and tormenting a child in school?

So, for my friends at GLAAD, let me offer some desperately needed perspective. Using the word "retard" in a joke is crass, and possibly funny. Calling a kid with Down's Syndrome "retard" is cruel and savage. Using the word "bitch" while singing along to a rap song in your Toyota is somewhat pathetic, but harmless. Calling your wife "bitch" on a daily basis means you are a vicious jerk. It's called context, people.

Here's a video I'm afraid we'll be seeing more of - a young man from Massachusetts fired from his job for objecting to a coworker's announcement that she was going to marry her same-sex partner.

The key legal issue (like that matters) is whether he is correct that she was harassing him throughout the day, or whether he is offering a self-serving version of events. Either could be true. I'm skeptical that his employer would have fired him for a single incident like this on a single day, but those are questions to be investigated (not like anyone will care). He could be right that the coworker was taunting him.

But two things about the video jumped out at me. First, and overwhelmingly, I was struck by how immediately his joy at a coworker's happiness turned into sour judgementalism. Are his religious beliefs really so harsh that they have this effect on his normal human emotions, ecstatic for his co-worker one moment, and disgusted the next? Is it the role of religion to transform the joy we feel for other people into an emotional menace?

Second, his repeated argument in the first two-thirds of the tape warning people in other states about how they, too, could suffer this kind of joy-deficit if their state passes same-sex marriage completely dissolves before our eyes when he intently criticizes the employee training tape about expressing opposition to someone of the same-sex making a pass at you. If that's actually what the tape says (and this seriously undercuts his credibility, in my eyes - I honestly can't imagine this not falling under the rubric of sexual harassment, at least if it were repeated) then his concern about gay marriage laws is the smallest part of his concern. As with so many other arguments purporting to be about same-sex marriage, the real concern he has is with open homosexuals in the workplace he shares with them. And if he thinks stopping gay marriage will halt that, too, he has another think coming.

Again, I doubt any of this will actually matter as the tape make the rounds of the right wing sites. But I couldn't help noticing.

A lot of people are pondering the state of gay marriage in the wake of our loss in Maine. But I think Tuesday's election results should get us all thinking about a more important, and much deeper storyline: the state of anti-gay prejudice. The full results of the off-off-year election show that after literally centuries of predominance, anti-gay prejudice is seeing its final days.

The loss in Maine actually makes that point. While the conventional wisdom characterizes it as a "stinging setback for the national gay rights movement" - and that's from our friends at the NY Times -- that's correct only if you think gay rights equals marriage. Marriage is the only issue we lose any more, so of course it presents a tantalizing story for the mainstream press, who get to sympathize with us while just doing their job reporting the news of our incomprehensible political impotence.

But on Tuesday in barely noticed elections elsewhere in the country, we won voter approval of (1) domestic partnerships in Washington; (2) an anti-discrimination ordinance in Kalamazoo; (3) an openly gay city council president in Detroit; and (4) an openly lesbian mayoral candidate in Houston. That seems to say something about the state of anti-gay prejudice in this country.

The Kalamazoo election was particularly telling and anachronistic; it's something we just don't see much of any more, an attempt to take away simple non-discrimination protection. And nearly 62% of voters chose to keep it in place. That's some evidence of how deeply into the mainstream of this country's politics gay acceptance has moved. Somehow, I'm not thinking Kalamazoo's gay community is feeling a stinging setback.

Marriage is not just an outlier, it is the only outlier. The fringe of the right will complain about any legal protections for lesbians and gay men, but they can't put together a majority on any issue except for full marital equality. An enormous majority of Americans even support repeal of Don't Ask, Don't Tell, though political cowardice on that issue still lingers in Congress -- the same cowardice that got us the policy in the first place.

This chart shows that more than a majority in virtually every state, including the ones with the most anti-gay sentiment, supports employment and housing protection, hate crimes laws and health benefits for homosexuals. The trailing issue in all states is always marriage, with majority-plus support in only six states.

In short, these are hard times for homophobes. That's why gay marriage is such a satisfying issue for the ones who are left. It is the only issue where they can rouse up enough residual bias against gays among otherwise fair-minded people to win an election.

And the importance of that last word cannot be overemphasized. It is direct elections where anti-gay prejudice about marriage can best be exploited. This may be the most toxic consequence of Maine. It is a warning shot to legislatures to avoid exercising their best judgment about fairness for gay citizens. The anti-gay bias that short-circuits rational debate in the electorate at large will make legislative action futile, so don't even bother to try.

As I argued before, I would like nothing better than to have a full discussion among the electorate on the merits (or flaws) of the public policy issue of gay marriage, but neither Maine nor California took advantage of that opportunity; at the least, it was offered by one side, but was of little interest in the other side's strategy. The anti-marriage campaigns were about anything but gay marriage.

If there's any doubt about that, compare the arguments in these campaigns to the arguments the right makes in court when trying to defend exclusionary marriage laws. No responsible lawyer could argue to a court (without worrying about sanctions) that gay marriage will force schools to teach children about homosexuality in the second grade, nor can a lawyer try to scare a court with images of kids reading books like King and King. Lawyers have to focus on the issue before them in their briefs and arguments in court, because courts are forced to assess the rationality of the arguments before them, and have to explain themselves in written opinions. There is no room in court for the political slurs that make up anti-gay marriage electoral campaigns. The best the right can do in court is arguing about procreation, deference to the legislative branch (an argument I wouldn't expect them to make in the future -- at least not with a straight face) and the will of the people. Not a word about second graders.

That enormous distance between the arguments made to courts about gay marriage and the obfuscations used in political campaigns says a great deal. I do not ever expect to have the kind of thoughtful discussion in public that courts are required to have. But, the very fact we can't have a public discussion about gay marriage when gay marriage is the issue might suggest, to reasonable people, that there may be something underlying the anti-marriage forces besides a desire to do what's best for the public weal and what's fair for a minority. Contra Rod Dreher and others, 31 wrongs do not make a right.

Maine was an extremely hard loss. But Washington looks to be a solid victory, and Kalamazoo was a blow-out. The gay rights movement is hardly on the ropes in this country, and our opponents should be taking little comfort from their ability to deny us this one right.