IGF CultureWatch

Here's the only really striking thing about Judge Vaughan Walker's opinion in Perry v. Schwarzenegger: Its 136 page length includes 108 pages of facts -- 108 pages of dry, straightforward, meticulous, and ordered citations to the evidence in the trial.

It might be easy for a layperson to misunderstand that. This is not a sexy opinion. There are no rhetorical fireworks, no forging of new and creative legal theories, no soundbite-worthy quotes, and not a trace of grandstanding. This is a very competent and workmanlike opinion from a trial court judge who was doing his job.

That job is to (1) allow both sides ample and fair opportunities to present the facts in the dispute; (2) determine which are the most credible and relevant facts, given the existing law on the subject; and (3) apply those facts to that law in order to reach a decision about which side should prevail.

Mission accomplished.

Most people will focus on this as a legal opinion, but that isn't its strength, and it shouldn't be. Trial judges are primarily there to gather the facts, not theorize about the law. Despite temptations from some excellent lawyers who know their way around the caselaw, Judge Walker didn't accept any offers to kick the tires on novel and edgy legal theories. Instead, he relied on longstanding federal constitutional law - specifically that old workhorse, the Fourteenth Amendment -- and applied it in the most modest way possible, using the most generous standard available to the proponents of Prop 8: they only had to show that there was some rational basis for the voters to distinguish between same-sex couples and opposite-sex couples. Any rational basis would do.

The proponents had every opportunity to build their case over the many months of discovery, depositions, witness-preparation and actual testimony at the weeks-long trial. Virtually all of their evidence is laid out in those 108 pages of facts.

And it isn't much. In fact, at one point one of their lawyers simply said they shouldn't have to present evidence, shouldn't have to come up with actual facts to support their case.
Contrast that with the plaintiffs challenging Prop. 8, who brought forward a small battalion of witnesses, both civilians and experts, introduced what we can only imagine to be millions of pages of documents and depositions, hours of video and taped recordings, and enough motions, counter-motions, memoranda and oppositions to memoranda to - well, to win their case.

And in a nutshell, that's where we now stand as a nation on the issue of same-sex marriage. Those of us who support same-sex marriage not only believe we are right, we are making that case based on evidence in the world around us. Those who oppose same-sex marriage deeply believe they are right and have always been right, and have a very hard time comprehending that they actually have to defend themselves. Where is the need for evidence, for facts?

But what they have historically taken for granted is now in question. Yes, marriage has always been understood as being between one man and one woman (with biblical polygamy confusing this simplicity), but why? What is it about marriage that makes it an unsuitable - to some, an unimaginable - legal and social institution for same-sex couples?

During all those centuries when no one asked these questions, no one ever needed to answer them. But we are asking the questions now. And under the rules that govern our country - under the constitution - we have charged the courts with providing the forum to provide the answers.

Judge Walker's opinion does exactly that, and not a thing more. He opened the court - our court - to both the proponents of Prop. 8 and its challengers, and let them do the best they could to answer the questions we may not have asked in centuries past, but have a profound need of asking now.

Anyone can read those 108 pages (though few will), and find little to criticize there. The only criticism from same-sex marriage opponents will be the bottom line, the conclusion that there really isn't a rational reason, today, for the law to treat heterosexual couples as a favored class over homosexual couples.

Perry v. Schwarzenegger lays out all the reasons offered, and each one erodes under the steady drip of the evidence that was presented. In the end, all that is left is fear and superstition about homosexuals. Those are things that can motivate voters, but the constitution does not credit them as justifications for the law.

I almost hesitate to post this because many of our self-styled "progressive" readers take such intense offense at any item taking note of gay Republican efforts to work with their party's leadership toward moderating the GOP's traditional anti-gay stance. But this is worth pointing out: Staunchly conservative Texas GOP Sen. John Cornyn will speak at the Log Cabin Republicans 2010 National Dinner in Washington, D.C. (event details and speakers here).

Yes, he opposes gay marriage. Yes, he wants to wait until the military study concludes before addressing don't ask, don't tell. Yes (all together now): Democrats are better on gay issues (although, as noted in the previous post, much of this is rhetorical). Cornyn's speaking at the fundraiser is still a positive sign.

As the senator put it, same-sex marriage is "absolutely" one of those things he and LCR members don't agree on, but "I don't want people to misunderstand and think that I don't respect the dignity of every human being regardless of sexual orientation."

Forward-looking conservatives know that their party has to moderate its views on gays (and the Texas GOP is among the most reactionary pillars of gay rejectionism within the party). So this should be viewed, and welcomed, as a sign of the times. We won't achieve gay legal equality until there is support within both parties, despite those who protests that backing the "progressive" party and maximizing its power over the country is the best strategy (well, it's best for that party and its partisans, I guess).

The Washington Blade reports that "Democratic senators are blaming Republican obstructionism for the Senate's failure to advance the Employment Non-Discrimination Act, but others say a lack of strategy is preventing a vote." Moreover:

Assistant Majority Leader Richard Durbin (D-Ill.) said Democratic leadership wants to move forward with ENDA, but noted difficulties in moving any item on the legislative agenda forward. "We have a tough time moving anything on the calendar because of Republican filibusters," Durbin said. ... Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor & Pensions Committee where ENDA is pending, on Tuesday expressed similar grievances about Republican obstructionism. Asked what's keeping the legislation from coming to a Senate vote, Harkin simply replied, "Republicans."

Of course, Democrats have an overwhelming majority in the House. In the Senate, Republicans can only filibuster if all 41 vote in unison, but ENDA has two GOP co-sponsors, Sens. Susan Collins and Olympia Snowe of Maine. If Democrats were committed to it, ENDA would be passed. But they're not. ENDA is a vote they'd rather do without, and by taking no action they can (1) blame Republicans and (2) keep using the lure of ENDA to reel in more checks from gay Democrats. This isn't a new gambit; during Bill Clinton's first two years in office Democrats also had solid congressional majorities. The result: no ENDA then, either.

As the Blade also reports:

R. Clarke Cooper, executive director of the Log Cabin Republicans, dismissed the notion that Republicans were holding up ENDA in the Senate and said "only the current Senate majority leadership can truly answer" why ENDA isn't on the calendar. "Blaming the minority leadership for the majority's disorganization and lack of planning this year is simplistic and, frankly, lazy," Cooper said.

indeed, when Sen. Durbin was asked whether any discussions on a strategy to advance ENDA in the Senate have taken place, he admitted to the Blade, "We have not reached that level." Well, it is much easier to blame Republicans than for the majority to actually do anything.

As Blade editor Kevin Naff commented in an editorial: "Democratic politicians will never shake their nervous Nellie ways and stand up for LGBT constituents if they know gay donors will write checks election after election regardless of legislative advances."

It really is all a game, and we're the marks.

Columnist Steve Chapman looks at the National Organization for Marriage (NOM) bus tour and reaches an interesting conclusion: NOM is capitalizing on provoking LGBT protests at its events, and activists are giving NOM what it wants. Chapman writes:

why would NOM hold a rally where it is sure of being badly outnumbered by motivated and well-organized critics? Maybe because that's what it wanted. The Summer for Marriage Tour could have been called the Come Shout Us Down Tour. The endeavor has managed to make opponents of gay marriage look like a brave, embattled minority, even though they constitute 53 percent of the public and have gotten their way in all but a few states. ...

NOM's website ... focuses not on any outpouring of support for its cause, but on the protesters who have appeared at its rallies, including some it accuses of disruptive and intimidating tactics. ...

The organization specializes in a form of political jujitsu, leveraging its foes' weight against them. As chairman Maggie Gallagher tells me, "The counter-protests are holding down our physical numbers, but they're expanding our online activist community."

Chapman adds:

It's hard to get terribly outraged when a group that goes out of its way to be drowned out by its critics almost gets drowned out by its critics. But the people here to support "traditional marriage" can accurately claim that they have been impeded in their effort to communicate their views.

The older I get, the more it seems that activists on the left and right work hand in glove, often giving each other what they crave.

More. Somewhat related, Andrew Klavan writes about the left's penchant to try to suppress opposing views. Generally speaking, he's not wide of the mark. Our own John Corvino and Jon Rauch, on the marriage question, are rare exceptions in seeking to actually debate those on the social right rather than shout them down.

There are any number of good reasons to read Jonathan Rauch's "Red Families, Blue Families, Gay Families and the Search for a New Normal," not the least of them being the lack of drama, insult or animus toward our opponents. Whatever can be said of Jon, he makes a reasoned, moderate and fully-examined case for equal marriage.

Maggie Gallagher knows Jon, has spent time debating him and talking with him, and is fully aware of his views, as well as his demeanor. Yet in listening to her public pronouncements now, you would never know she was aware of non-hateful, nonviolent, rational or empathetic homosexuals. Her current rhetoric focuses solely on lesbians and gay men who hold her and her supporters in contempt. To be fair, there are plenty of those.

But what is frustrating is how Maggie - and, in fact, nearly all of the anti same-sex marriage crowd - fail to show us the respect and humanity that Jon displays so generously.
Jon does not shy away from directly confronting the best arguments against his own position. This piece, like most everything else I've read of his, lays out a fair and clear articulation of the opposition, and tries to understand it, the better to answer it.

Here is the test of good faith in political debate: Each side should be able to convey the other side's position to the other side's satisfaction. Jon, I think, meets this standard. Some opponents of same-sex marriage are very concerned about homosexuality in general, and feel that same-sex marriage would normalize homosexuality. That, in their view, is a socially dangerous thing to do. Others, and Maggie is in this camp, are less concerned with the normalization of homosexuality than with what they view as the abnormalization of the conventionally defined family. While there is certainly some compression and simplification here - Jon is, after all, not making their argument, just hoping to describe it fairly - I think it is hard for same-sex marriage opponents to disagree with his summation, though they would certainly want to elaborate.

Compare that with the way Maggie approaches the political debate. The very heart of our argument is equality; the law treats heterosexuals differently than homosexuals, and, in the vast majority of states, virtually ignores the existence of same-sex couples as families. While I have heard Maggie refer respectfully to lesbians and gay men of her acquaintance, she does not try to engage our argument and respond to it; she simply avoids it. She doesn't care about what happens to same-sex couples under the law. Her entire focus is on the rights of heterosexuals, and their role in society.

That is consistent with her concern about heterosexual families, but her inability or unwillingness to engage our best arguments shows that she is not interested in having a debate; she is content to continue a monologue. But heterosexuals are not the only people in the country, and the failure to even try to understand the world from the point of view of homosexuals is very strong evidence of a blithe ill will, at best, and intent to discriminate against a minority at worst.

Compare Maggie with David Blankenhorn. He, too, knows Jon, and has spent time in debate over same-sex marriage. But he is not afraid to acknowledge that we do, in fact, have an argument that merits response. This has harmed his case (to the extent he wants to preserve exclusively opposite-sex marriage) because it necessarily concedes same-sex couples are, in fact, being treated unfairly. His testimony in the Prop. 8 trial was extremely damaging to our opponents only because it was candid and humane. Every trial lawyer knows these can be fatal qualities in a witness, however valuable they are in a human being.

Aside from Blankenhorn, there are virtually no opponents of same-sex marriage who seem willing to treat us with the courtesy and dignity that Jon regularly displays, to actually articulate our side and then explain why we are wrong. I won't claim that Jon is representative of the kind of argumentation I prefer, but there is far more of it in support of same-sex marriage than there is in opposition.

That asymmetry is the source of the annoyance and peevishness among our supporters that Maggie exploits so well. She continues to win the imaginary debate she is having with herself, but she does her cause no honor by ignoring the very real arguments that could prove her wrong. She'd have done well to learn something from Jon while she had the chance.

NOTE: In the Comments, Jorge correctly points out that I'd inadvertently included the wrong link to Maggie's current rhetoric. I've fixed it to link to the correct video of Maggie calling us out for being hateful because we disagree with her.

Belatedly, I'm just now catching up with remarks that former Arkansas Governor Mike Huckabee made in April to Michael Tracey, a college journalist and a student at the College of New Jersey. Belatedly or not, those remarks deserve comment, because what they say about Huckabee's character is not pretty.

True, what Huckabee says about gay marriage isn't new, for him. But just listen to the way he says it.

You don't go ahead and accommodate every behavioral pattern that is against the ideal. That would be like saying, well, there are a lot of people who like to use drugs, so let's go ahead and accommodate those who want to use drugs. There are some people who believe in incest, so we should accommodate them. There are people who believe in polygamy, so we should accommodate them.

The gay marriage debate has been going on for well over a decade now. Yet Huckabee makes clear that he has not given the subject a moment's thought, beyond his initial, frozen-in-amber reaction-one which consists not of a reasoned argument but of a tone of contempt. As if it were self-evident that gay relationships are the moral equivalent of drug abuse. As if it were obvious, with same-sex marriage now six years old in Massachusetts and legal in five states (plus DC), that recognizing committed gay relationships must lead to every other random, bizarre change anyone can think of.

Huckabee also speaks up for Arkansas's ban on adoption by same-sex couples, as if same-sex parenting were a radical experiment. It never really was, but in 2010 anyone who reads a newspaper knows that thousands and thousands of kids have been successfully raised by gay couples, and there is no evidence that the kids are disadvantaged (see, for example, this article [PDF]). Which, by the way, is not true of kids adopted and raised by single individuals, which Arkansas and every other state allows. And is also not true of kids raised in foster care, the likely alternative for some kids when gay adoption is banned.

In 2000, these "I can't be bothered to think about it" responses were merely lazy. In 2010, they show deliberate refusal to even entertain the moral case that Huckabee's gay and lesbian fellow-citizens are making. All he is really saying here is, "I couldn't care less. Get off my planet."

Truly contemptible, though, is this: when, inevitably, Huckabee's words were noticed and he took some flak, he attempted to blame the young journalist for "grossly" distorting his views. In fact, Huckabee was quoted accurately and in context, as Tracey's rejoinder, and the audio of the interview, made clear. (Rachel Maddow plays choice excerpts.)

So supplement the word "contempt" with another, "cowardice." And remember the name of that young journalist, Michael Tracey, whom I met at a conference the other week and who is off, I hope, to a great career-having already launched a campus magazine.

More: In a recent New Yorker article, Huckabee is asked if he wouldn't be curious to know whether same-sex marriage has positive or negative effects kids and society. He replies, "No, not really. Why would I be?" And then...he laughs.

Couldn't be much clearer than that. Same-sex marriage. Real-world effects. Lives of children and gay people. All...a joke.

Retiring and recently outed California State Senator Roy Ashburn pens an op-ed:

I am sincerely sorry for the votes I cast and the actions I took that harmed lesbian, gay, bisexual and transgender people. Just as important to me, I am sorry for not stepping forward and speaking up as an elected official on behalf of equal treatment for all people. ...

To me, Republican principles hold that each individual is special and unique; each individual should have the maximum freedom and opportunity under our Constitution; that government has no business in the private lives of our citizens. If these truly are the guiding values of Republicans-how did we ever get into the situation where my party is viewed as the anti-gay-rights party? Well, maybe because Republicans, including myself, have voted and acted to oppose equality and freedom for gay people.

An anti-war group that helps service members get an early discharged from the all-volunteer military by claiming new-found conscientious objector status must decide whether to help service members exit the military because they don't want to serve alongside those who are openly gay, the New York Times reports.

I guess the debate is whether they're more anti-military than anti-anti-gay. Perhaps soon-to-be-confirmed Justice Kagan could help them decide on the most progressive course of action given the circumstances at hand.

As the Obama machine gins up its political blood libel accusing the anti-tax, pro-limited government Tea Party movement of being racist-despite lack of evidence-the Washington Post, to its credit, takes note of "the strong libertarian strains within the tea party movement," as evidenced by its refusal to join social conservatives in condemning same-sex marriage. In fact, the paper reports that following the Massachusetts' district court ruling finding sections of the anti-gay Defense of Marriage Act unconstitutional:

The large tea party-affiliated organizations, including FreedomWorks and the Tea Party Nation, declined to comment on [district court judge Joseph] Tauro's ruling because of their groups' fiscal focus. "That's just not something that's on our radar," said Judson Phillips, founder of the Tea Party Nation. He acknowledged, however, that some in his group-though not a majority-are opposed to the Defense of Marriage Act.

The situation is perhaps different in South Florida, where [Everett Wilkinson, state director for the Florida Tea Party Patriots] said "several hundred" of the group's supporters are gay. "Our stance might be different than someone who's in Oklahoma," he said.

More. If you're a Facebook person, this Gay Tea Partiers Facebook page has 124 members to date. (Update: now 132 members, and counting.)

Furthermore. Some of the comments have already turned to discussing the Obama Justice Department's refusal to prosecute members of the New Black Panther Party for voter intimidation (against those they call "crackers") in Philadelphia during the 2008 election, as Deroy Murdoch writes about here.

Another great piece by Jack Balkin, this time laying out six possible scenarios for same-sex marriage in light of the district court decisions from Massachusetts.

Again, Balkin is primarily concerned with the political implications of constitutional decisions, and again he is absolutely on target. Lesbians and gay men don't, unfortunately, have the luxury of viewing their constitutional right to equality simply as a guarantee. It comes, if it comes, with political strings attached, and those strings are directly controlled by archaic but still potent misunderstandings about what homosexuality is.

In the end, Balkin makes lemonade out of the lemon of a potential U.S. Supreme Court decision upholding Section 3 of DOMA, the one that prohibits the federal government from giving any sort of recognition to same-sex couples lawfully married in their own state of residence. A decision upholding Section 3 would take us out of the courts and put the action back where pure politics would suggest it ought to be - the states. He posits that in perhaps a decade we might be able to go from six marriage-recognizing states to twenty-six.

If that effort only involved getting legislatures to enact same-sex marriage (or civil unions; I'd be happy with civil unions as a political compromise), he might have a point. But this is where Balkin uncharacteristically misses an obvious and extremely important point. The legacy left to us by Karl Rove is a national landscape where voters actually changed their state constitutions - not just their statutes - to prohibit same-sex marriage. A protection for the minority against the majority was enlisted as a protection of the majority against that minority. Prejudice carried the day as a political tool to win short-term advantages. Generations of misunderstanding and ignorance were leveraged and elections were won. Those misunderstandings, that ignorance, have now been enshrined in state constitutions across the land as principles by which those states will govern themselves.

Certainly in some states like California, we can return the equality our state constitution guaranteed prior to Prop. 8 with a majority vote - though it won't come easy. Other states are not so fortunate. For them, the political battles for same-sex marriage will be uphill and in the snow.

It's easy to talk about the virtue of political action. But if there ever was a situation where the ordinary constitutional rules have been disregarded or turned utterly upside-down, where constitutional protections have been torn up and thrown away, same-sex marriage is that case.

In that context, then, the political reaction to a federal court victory is something I fear a bit less than Balkin and others. At some point we need to stand up and say that the principles and plain words in our constitution actually mean something. Damage has been done to the ideals we jointly established for our democratic republic. The equal protection clause was put there for a reason. The equal protection clause was put there for this reason. Heterosexuals can minimize that in deference to politics. But sometimes -- now in particular -- lesbians and gay men can't.