IGF CultureWatch

"At the end of the day, people vote on issues based on how they think it will impact them and their families. We spent a great deal of time trying to understand what impacts could we develop that would work. Communication has to be aimed at and appeal to those self interests of the electorate."

This is the challenge our opponents have. The quote is from the emerging guru of the right, Frank Schubert, whose Shubert/Flint Communications had the task of instilling fear about same-sex marriage into otherwise disinterested heterosexuals during the Prop. 8 battle. What he found was that gay marriage wasn't an issue most moderate voters cared much about. Schubert and his folks needed to "develop" those fears, so they could exploit them.

Karen Ocamb does a thorough job of examining exactly how much work this involved, and I'll leave you to be fascinated, appalled or sickened by the underlying videos (via Pam's House Blend). The only thing I can add is to emphasize this obvious truth. Most heterosexuals don't see a real threat from same-sex marriage because there isn't one. This is something we've known from the start, but we've been doubting ourselves. In the words of Schubert's partner in this crime, Jeff Flint, their trick is in "…raising a doubt and projecting a doubt forward - that you have to get people to believe may happen but it hasn't happened yet." Along with heterosexuals, they got us, too.

Schubert/Flint proved in California that they could raise those doubts among the undboutful, creating and inflating the fear they needed people to have. They are now unleashed in Maine, and will be spooking people throughout the Halloween season.

To the sturdy people of Maine, I can only say this: Your instincts are right. Same-sex marriage will not, and cannot affect yours. It will only add to the happiness in the world, not subtract from it. These ghouls haunting the countryside and the airwaves are being paid to scare you. Tell them to take their horror stories somewhere else.

I don't know how many fans of Mad Men are out there, but last week's episode was terrific. It's called "The Arrangements," and while the focus is on Grandpa's decision to arrange for his passing (something not at all imminent, and which his daughter is not ready to deal with), the title's plural is intentional.

One of the main characters, Sal, is gay (no spoiler here), but has a socially-approved wife. Some would call this a marriage (including Sal and his wife, Kitty), but in the vernacular of sophisticates of the time, it is more clearly an "arrangement." Neither Sal nor Kitty can actually articulate what the problem is, but when you see her watching Sal perform a commercial the way he wants to film it -- and doing his impression of Ann-Margret in the opening of "Bye Bye Birdie" -- the look on her face is the answer to every anti same-sex marriage argument in the book. These are two people mutually deceiving one another about a very obvious fact that lies at the core of their relationship. Very slowly, what they're lying about is coming to the surface.

Do we really want our culture and our laws to go on encouraging this kind of farce? Leave aside for the moment its effect on homosexuals. Is this good for heterosexuals? Watch that scene, pay close attention to the look on Kitty's face, and then ask those who say current marriage laws treat gays equally to answer the questions she is struggling with.

The Washington Post's Ombudsman tries to respond to Monica Hesse's treacly article on Brian Brown from the National Organization for Marriage -- and makes the same mistake Hesse did.

It's not that you always have to represent the "other side," as the paper's Style Editor sermonizes. The Ombudsman notes that Hesse, herself seems to be on the "other side," as a bisexual who claims a prior relationship with a woman.

The problem is that she is a writer who is unable to detect when she is being had. I don't know whether Brown is "pleasantly, ruthlessly sane," but he is certainly deceptive. As the article shows (unless Hesse was deceived about this, too), he knows better. He claims (as does Frank Schubert, the Karl Rove of the anti-marriage movement) to know homosexuals personally, though like Schubert's gay supporters, they are kept in some undisclosed location the public doesn't have access to. If you know someone who is gay and not completely self-hating, how can you ignore any real option for same-sex couples you think should not be permitted to marry one another?

That is exactly what is at issue in Washington state, where Referendum 71 does not give same-sex couples the right to marry, but only the right to have their relationships recognized as domestic partnerships. Will Brown and NOM be fighting that battle as well? Brown's only, insulting answer to same-sex couples is that they should be treated under law like good friends, or maiden aunts. The extent of the equality he would grant them is limited to being able to contract with one another (which he doesn't seem to acknowledge would be radical only if it were not already legal) and maybe have the state permit hospital visitation. NOM's stand on Referendum 71 is clearly the key to their good faith; support would show that they mean it when they say it is only marriage they are trying to protect. Not pressing Brown on that -- in fact, taking him at his word as being supportive of gay equality -- was Hesse's gravest sin.

And the paper's Ombudsman never even mentioned it.

For those who are interested in how gay rights moved from dreaming to action, another piece of California's history is now in print: Tom Coleman's memoirs, The Domino Effect. I'm obviously biased here, but my defense is this: New York had a very active gay community at the same time that California did, yet to this day New York state does not have either domestic partnership or marriage, and California has both. I think the key reason is that we had people like Tom (and others) who knew how to act on their dreams.

Tom's book is about what the world looked like when he got started, and how he worked to change it. New York has many elegant writers and historians, which is why we know so much more about New York's gay community and activists than California's. But unless you have an adequate supply of Tom Colemans, your laws remain static. Politics -- particularly the virulently ant-gay politics of the 1960s and 70s -- is very hard work, and all the visionaries in the world don't help if they don't understand how to make change happen in the scrum of government.

As a nation, we're now at the height of our political action. Tom's book is a good way to see how far we have come, and study what people had to do to make that happen.

Some props to Brian Brown of the National Organization for Marriage for going on Michaelangelo Signorile's radio show to talk about marriage. Regrettably, Signorile wanted to talk about gay equality, and that's a language Brown doesn't speak. In fact, if Brown has mastered any skill to qualify him for his present position, it is turning the conversation away from homosexuals and focusing only on heterosexuals.

Brown was insistent that "We should all share the same basic rights," but every time Signorile tried to pin him down on what legal rights same-sex couples should have, Brown changed the subject. He would much rather talk about heterosexual grievance.

That is how the anti-marriage forces succeeded in California. They turned an election about gay inequality into a town hall exposing how lesbians and gay men mistreat religious believers and parents of schoolchildren. Brown learned the lesson well. To hear him tell it, we have utterly overpowered heterosexuals and are bullying them without mercy. If only we could have used our superpowers to change the law that discriminates against us. . . .

Brown clearly intends to follow that script in Maine and if he gets the opportunity, Washington. Once again, the right will try to erase us from the discussion, and focus only on themselves. Hopefully this time around we won't assist them in that strategy.

Utah Governor Gary Herbert's statement yesterday about gay rights has a message bigger than I think he intended:

"We don't have to have a rule for everybody to do the right thing. We ought to just do the right thing because it's the right thing to do and we don't have to have a law that punishes us if we don't."

Herbert was talking about a state law that would prohibit discrimination against lesbians and gay men, and expresses an optimism about human nature that he'd probably be embarrassed about in any context except gay rights. His position looks to be that the law should not be used to punish people who do bad things because -- well, he doesn't get into that; we just should do good things. I think it's fair to assume he confines this theory to laws about homosexuality, since it's hard to imagine a public official who would support eliminating or ignoring all laws that punish people for doing things we agree are degraded or despicable. I also think it's fair to assume he wouldn't want to rely solely on human virtue even in the face of other forms of discrimination. Perhaps, though, he is not being inconsistent here, and has asked the Utah Antidiscrimination and Labor Division to refrain from enforcing any existing anti-discrimination laws against African-Americans or others.

But his focus on laws that punish people only applies to one species of laws -- those that affirmatively state what should be prohibited. But look at Herbert's statement in the context of Utah's law that prohibits same-sex couples from the benefits of the state's marriage laws. This is not a law that (technically) punishes anyone, it is a law that encourages something we agree is good. But if, as Herbert seems to believe, it is the "right thing to do" not to discriminate against homosexuals, why does this law unambiguously demand the government engage in that discrimination?

Perhaps Utah doesn't need to pass a law prohibiting discrimination against lesbians and gay men. Perhaps people in Utah can be relied on to treat homosexuals fairly. But the state's existing marriage law certainly doesn't support the Governor's optimism. In fact, that law is pretty solid evidence proving him wrong.

In a recent blog post, I took note of a column in which Steve Chapman of the Chicago Tribune writes that I, among other gay-marriage advocates, "forthrightly asserted that granting gays access to matrimony will have no discernible [social] impact." My quote:

"I wouldn't expect much effect on the social indicators that would be visible to the naked eye," said Jonathan Rauch.

In my book and elsewhere, of course, I've argued that same-sex marriage is more likely to strengthen the culture of marriage than weaken it, and that shutting out gays, far from being risk-free, would be likely to redefine marriage as a civil-rights violation.

In order not to appear any more inconsistent than I actually am, I want to put on record the whole paragraph that I sent to Chapman:

Hi Steve. SSM directly affects only a small number of couples, so direct effects on the non-gay population are likely to be small. Cultural effects-e.g., bolstering the norm of marriage vs. normalizing alternative family structures-are indirect and distinguishing signal from noise would be hard. So I wouldn't expect much effect on the social indicators that would be clearly visible to the naked eye.

I'm not sure why Steve edited out the word "clearly," which made the point a bit, um, clearer: direct, immediate impacts of allowing gay marriage will be small, because so few couples are directly involved. Indirect effects, ramifying through the culture in the form of, say, increased (or decreased) support for the norm of marriage, may be quite large over time. But it's hard to trace these indirect cultural influences with any specificity, or to know what would have happened under some alternative scenario. Identifying them will require some fairly sophisticated research (thus: "not clearly visible to the naked eye").

So, don't get me wrong: either allowing or banning gay marriage will probably have some effects on heterosexual behavior. But the obvious effects will be small, and the larger effects won't be obvious.

There's probably a reason anti-gay marriage advocates won't or can't answer Steve Chapman's simple challenge; it's because he called their bluff. Maggie Gallagher offers a weak tea response, which Conor Clarke has no trouble seeing right through.

As is so often true these days in political debate, subjective fears seem to be the path of least resistance, the lazy advocate's way of making a case. Maggie's not normally lazy, but her appeal to fear is not even credible by the low standards of anti-gay argument.

For example, I'm not sure which of Maggie's folks will be "afraid to speak up for their views" in a pro gay-marriage state. Will it be this pastor, who said:

The same God who instituted the death penalty for murderers is the same God who instituted the death penalty for rapists and for homosexuals - sodomites, queers! That's what it was instituted for, okay? That's God, he hasn't changed. Oh, God doesn't feel that way in the New Testament … God never "felt" anything about it, he commanded it and said they should be taken out and killed.

Or these guys with the Facebook gay-bashing page; or this pastor who, even today, is blaming gays for tornados? Even the much vilified federal courts sometimes rule that high school students can wear anti-gay t-shirts to school. Heck, those students even have a federal law to protect them. There is simply no shortage of anti-gay sentiment in the world, and I doubt we'll be running out any time soon.

But even if some of Maggie's supporters do experience this paralyzing fear -- against all of the evidence -- it's certainly not likely that Maggie herself will. So cheer up, Maggie!

Don't miss Ryan Sager's post (especially the graphs) on the chasm between younger and older people on gay marriage. Citing a new paper by academics Jeffrey Lax and Justin Phillips, he sez:

If people over 65 in each state made the laws, zero states would have gay marriage; if people under 30 made the laws, 38 states would have gay marriage.

Also must-read: In the Chicago Tribune, Steve Chapman wonders why the same folks who predict social catastrophe if gay marriage is allowed refuse to make specific, testable predictions.

I have a strong suspicion that both sides of the debate are right. The supporters of same-sex marriage are right in predicting that it will have no bad side effects. And the opponents are right not to make predictions.

Here's a flip-flop to welcome. In its original brief in a California lawsuit challenging the Defense of Marriage Act, the Obama Justice Department adduced a bevy of standard anti-gay-marriage arguments to defend DOMA's constitutionality-including the old standby that restricting marriage to opposite-sex couples isn't discriminatory because, after all, homosexuals can have opposite-sex marriages too.

Now, in its latest reply brief, the administration switches tack. It states unequivocally that the ban on gay marriage is a form of discrimination, as IGF contributor Dale Carpenter notes over at Volokh.com. And although DOMA passes the so-called rational basis test (ergo Congress had the power to enact it), it's not rational because banning gay marriage is rational (it isn't), but only because Congress is entitled, for the time being, to leave the issue to the states. There's no attempt to characterize DOMA as anything but discriminatory and unjustified.

Unlike some gay-marriage advocates, I believe that DOMA is, in fact, constitutional, in the sense that Congress has the power to enact it. I also believe, however, that setting up a federal definition of marriage at odds with those of (now) six states is bad policy. So, second time around, Obama gets it right.

And better late than never. Dale concludes:

While gay-rights groups complain that the DOJ is continuing to defend the constitutionality of DOMA, and are understandably disturbed by the still-unabandoned arguments the DOJ made back in June, they should be delighted by the turn taken in this reply brief. It will serve the cause of SSM in state and especially federal courts for years to come.