IGF CultureWatch

When Jonathan says the Brookings Institution panel was A Great Debate, he isn't kidding. Jon and David Blankenhorn articulated the philosophical change in style they are aiming for: a discussion that pits two good things against one another (in Blankenhorn's words) rather than one about bigots against perverts (Jon).

If that were all that was said, the debate would have been worth everyone's time.

But another theme emerged, and it will be the crux of the political problem if the compromise gets any takers -- as I hope it will. In order to get the federal government to accept state laws recognizing same-sex couples, states would have to enact robust religious conscience laws making clear that religious organizations would be protected against lawsuits forcing them to recognize same-sex relationships.

But "conscience" is not an organizational attribute, it is a personal one, and the compromise would apparently have to stretch far enough to reach individuals. Everyone agrees the government may not intrude in the sacramental role of religious organizations, but what about religious individuals who function in the civil realm? They claim that their religious beliefs against same-sex marriage would prohibit them from performing their non-religious duties, and want protection for that as well - and the way I read the compromise, it would also include protection for these individuals.

This is where the compromise becomes most pointed. Justices of the Peace work for the state, not the church, yet some have refused to issue licenses to same-sex couples because they have religious objections. In the debate, Professor Robin Wilson discussed the dilemma when a same-sex couple faces a civil servant who refuses to perform the civil ceremony prescribed by the state. There are normally other JPs available, and as with some pharmacists who refuse to perform their job of dispensing contraceptives for religious reasons, as long as the customers are served by someone, all needs can be met - though participants on both sides will have been forced to face, for a bit, the other side's arguments and sensitivities.

But it's important to remember that this accommodation is not a constitutional matter. The constitution does not require states to go this far in accommodating individual religious beliefs. That was established in a 1990 Supreme Court decision, Employment Division v. Smith, which upheld a state law that criminalized drug use, and a prosecution of Native Americans who ingested peyote in a religious practice. If the constitution required a general religious exemption from laws that are generally applicable to everyone, the court reasoned, then each religious believer could become a law unto himself, with a personal veto over any legal obligations he determined were offensive.

The opinion was written by Justice Antonin Scalia, an energetic proponent of religious freedom as a constitutional right, but also a man who's savvy to how people can abuse the courts.

If states have to accommodate even individual religious beliefs against gay marriage, we will need to be wary of the same sort of abuse Scalia was concerned with in Smith. But that is no reason not to try.

There are signs that, as is usual in non-presidential year congressional elections, the party in power (the Democrats) are headed toward losing a substantial number of seats in 2010. Respected pollster Charles Cook provides this analysis.

Given the Democrats' misdirected spending binge, yielding trillion dollar deficits as far as the eye can see, and their bumbling efforts to fix the nation's banking crisis, it's likely the GOP could retake the House and pick up several seats in the Senate, robbing the Democrats of their near filibuster-proof super-majority.

Which is just to say, this may be a quickly passing moment when the Democrats have near-supreme power with the White House and Congress. If we are ever going to get the party that gay people have chosen to fund and support to do anything substantial on our behalf - with repealing don't ask, don't tell and the Defense of Marriage Act at the top of the legal-equality agenda - now is the time.

As we get closer to 2010, the Democrats are going to get increasingly hesitant to raise our issues. This is it; and if "it" doesn't happen, that means the Democrats get to fundraise on our issues for years to come, while we get to write them checks while listening to campaign rhetoric about how inclusive they are.

More. In the comments, "avee" responds to "BoBN" thusly:

BobN: For folks who constantly complain about the "trough" of Democrat-led government, you sure complain loudly when the slop isn't doled out pronto!

Avee: No, Bob, I'm not asking for billions, er, trillions in taxpayers' money; just equal rights under the law. See, I'm not a Democrat. Just asking for equal legal rights.

Can gay-marriage proponents and religious conservatives strike a bargain? David Blankenhorn and I proposed federal civil unions with a religious opt-out last month in a New York Times article, and recently we got a chance to try it out at a Brookings Institution panel.

Representatives of the Human Rights Campaign and the Union of Orthodox Jewish Congregations didn't sign on the dotted line (not that they were expected to). But neither did they slam the door. And the give-and-take over the meaning of civil rights and the limits of compromise was fascinating. Listen to an audio podcast or read a transcript here.

The website WorldNetDaily has discovered that Merriam-Webster has changed the definition of the word "marriage" to include same-sex couples. They've posted a mournful video at the site, ending with a warning for people to "WAKE UP!"

WND is a little late to the party, since this change took place in 2003 - and followed by three years a similar change by Houghton-Mifflin in 2000.

But better late than never.

This is obviously a crushing event for the Christianists. As the culture has been changing on gay marriage, their only refuge in the civil society was the dictionary. Their own religious arguments are persuasive to them, but citations to the Book of Hebrews or Matthew (included in a 1913 dictionary definition) don't go a long way to persuade the non-religious - or even many American religious believers. The most recent Field Poll in California found that 31% of Protestants, 45% of Catholics and 63% of believers in some other religion support full marriage rights for same-sex couples. That's why the Prop. 8 proponents relied so heavily on appeals to the "definition of marriage," and "the meaning of marriage" in their ballot arguments. Definitions are - well, they're defined. We know what they are - just go to the dictionary. They're not just citing their Bibles, they've got another big book on their side as well.

The problem is that dictionaries are not static. Language follows the culture, and words are as dynamic as the populations who use them.
More important, the meaning of words as they are actually used is not subject to popular votes - it is subject to actual usage.

Neither of these dictionary definitions overrides the most common meaning of "marriage" as the union of a man and a woman. That would be absurd, and it would be counter to common sense. But it is equally absurd for a dictionary to blind itself to an emerging, and well-understood change that is happening in the culture. Even those who oppose same-sex marriage cannot deny what it is they are fighting over: marriage between two people of the same sex.

As the right has been fighting over the legal definition of marriage, they have been giving greater prominence to the alternate understanding that so many people are now adopting. Under the revised rules of equality the right is demanding, gays must fight for a majority to achieve marital equality - and we're only inches away. But dictionary definitions don't need majorities. If a significant number of people are, in fact, using a word with a new meaning, they have an obligation to include that meaning on the list of other meanings the word has.

Despite the harrowing cries of the right, that is all gays are asking - not to displace the heterosexual understanding of marriage, but to be included in it as we are: people whose sexual orientation is not heterosexual. And by the very fact of fighting this battle, our opponents made sure we'd get into the dictionary.

Thanks.

This just in* from Pew: 56 percent of mainline Protestants think homosexuality should be accepted. That's Episcopalians/Anglicans, Methodists, Lutherans, Presbyterians. And here's a pleasant surprise: 40 percent of Baptists.

To be sure, evangelical acceptance remains low, at 26 percent. But the days of the cobra-mongoose relationship between Christianity and homosexuality are ending faster than even many of us appreciate.

* Actually, it's 2007 data. What would the numbers look like today?

New GOP Party Chair Michael Steele says some interesting things-certainly not all bad-about his party and gays in his GQ interview. Some excerpts (the magazine left in the "ums" and used "gonna" for "going," which is not standard journalistic practice but serves to make Steele seem less articulate):

On gay marriage: "I have been, um, supportive of a lot of my friends who are gay in some of the core things that they believe are important to them....the ability to be able to share in the information of your partner, to have the ability to-particularly in times of crisis-to manage their affairs and to help them through that as others-you know, as family members or others-would be able to do. I just draw the line at the gay marriage....[F]rom my faith tradition and upbringing, I believe that marriage-that institution, the sanctity of it-is reserved for a man and a woman. That's just my view. And I'm not gonna jump up and down and beat people upside the head about it, and tell gays that they're wrong for wanting to aspire to that, and all of that craziness. That's why I believe that the states should have an opportunity to address that issue."

On a federal constitutional amendment: "I don't like mucking around with the Constitution.... I think that the states are the best laboratory, the best place for those decisions to be made, because they will then reflect the majority of the community in which the issue is raised. And that's exactly what a republic is all about."

On whether people choose to be gay, as the anti-gay right claims: "Oh, no. I don't think I've ever really subscribed to that view, that you can turn it on and off like a water tap. Um, you know, I think that there's a whole lot that goes into the makeup of an individual that, uh, you just can't simply say, oh, like, 'Tomorrow morning I'm gonna stop being gay.' It's like saying, 'Tomorrow morning I'm gonna stop being black.'"

Steele has made his share of missteps as he tries to move his party in a somewhat broader direction. He's been criticized by the right for his moderation on some issues (he has said he's personally anti-abortion but it should remain an indivdiual choice), and for his criticism of Rush Limbaugh's bombast (about which he was forced to recant), while attacked from the left (and mocked, of course, on Saturday Night Live) for being a black Republican. Still, the level of vitriol directed at him from left and right indicates he may be trying to do something positive, at least on the social issues front.

(For a contrary, far more negative assessment, see James Kirchick's "Rusted Steele." For its part, the Log Cabin Republicans welcomed Steele's appointment but chided him for saying his party would not support federal recognition of civil unions.)

The Long Beach Press Telegram reports that the closet is still alive.

OK, that's not the headline, but clearly, as Mickey Kaus says, it's the undernews. If you're a married same-sex couple, the 2010 Census will put its hands over its face and pretend you're not there. To be fair, we've made a little progress since 1950; you can at least tell the world you're partners, though you'll have to check the "unmarried partners" box.

But there is still this one wall of the closet that hasn't yet toppled. We kicked down the closet door in the 60s, 70s and 80s, and then public support helped dismantle most of what was left.

I suppose that remaining wall gives some people comfort. While the rest of us are living our lives out in the world, there are still those who cower behind that standing panel, pretending there's a closet on the other side. I'm tempted to say, Mr. Bush, tear down this wall. Mr. Benedict, too, and Mr. Perkins and - come to think of it, an awful lot of Misters, including the inventor of the modern rule the Census is relying on, Mr. Clinton.

But there's really no need to say anything. There's no closet left for us to go back into. The recent California Field Poll shows that only about 19% of Californians would vote for same-sex couples to have no rights under the law - a number that's fallen from its previous low of 27% back in 2006. The 48% who say they would vote to give us full marriage rights isn't a majority, but full marriage is now within reach. Homosexuality is an issue lesbians and gay men stopped pretending about a long time ago, and the majority of heterosexuals now realize the pretending was getting tiresome. The federal government can continue its fictionalizing, but isn't that the sort of thing we wanted to abandon when we elected Obama president?

As part of an interesting exchange with Deroy Murdock, who wonders why social conservatives fuss so much more about gay marriage than about websites that openly facilitate adultery, Maggie Gallagher sez:

...in the last five years, unmarried childearing has resumed its inexorable rise. 38 percent of all babies are born out of wedlock, which implies probably more than half of women who become mothers for the first time do so while not married. Is it mere coincidence that this resurgence in illegitimacy happened during the five years in which gay marriage has become (not thanks to me or my choice) the most prominent marriage issue in America - and the one marriage idea endorsed by the tastemakers to the young in particular?

From the National Marriage Project's latest (February 2009) "State of Our Unions" report, here's the trend in out-of-wedlock childbearing, 1960-2006.

Can you spot the effect of same-sex marriage?

Incidentally, "State of Our Unions" is an invaluable annual publication, which deserves more attention. If you look through the charts linked above, you'll find a mixed picture where the health of marriage is concerned. One trend, however, stands out as really dramatic since 2000, and that's the huge rise in heterosexual cohabitation.

As Figure 13 shows, the number of unmarried cohabiting opposite-sex couples living with one or more children has increased 60 percent since 2000 (!). Also up, though only mildly, is the percentage of high-school seniors saying that having a child without being married is "experimenting with a worthwhile lifestyle or not affecting anyone else" (Figure 17).

The two best ways I can think of to encourage cohabitation's emergence as the cultural equal of marriage are to (1) tarnish marriage as discriminatory in the minds of the young, which is what excluding gay couples from marriage is doing, and (2) turn same-sex couples who have kids into walking advertisements for out-of-wedlock parenthood, which is what excluding gay parents from marriage is doing.

More... A foretaste of what will happen if marriage is defined as that form of union which excludes gays: in California, two college students are launching an initiative effort to end marriage discrimination by ending civil marriage, replacing it with civil partnerships for all couples.

Oral arguments in the California Supreme Court lived up to, and exceeded, my highest expectations.

Chief Justice Ron George got the ball rolling with his very first question to Shannon Price Minter, representing the National Center for Lesbian Rights. In The Marriage Cases, the court had ruled that under the state equal protection clause, sexual orientation is a suspect class requiring strict scrutiny of any law that uses it as a factor - and that a law which denies same-sex couples the fundamental right to marry is unconstitutional. The Chief Justice immediately asked Minter whether his position was that any of these parts of the ruling were superseded by Prop. 8.

The answer was No, as it had to be.

And the entire three-hour argument could have ended there.

Our side - the pro gay marriage side - argued that Prop. 8 was a wholesale revision to California's constitution. This was based on the theory that equal protection is at the heart of any (fair) democratic system. Majority rule is a sound and time-tested form of government, but majorities must be subject to some checks on their power if they design rules that advantage themselves at the expense of a minority. And those checks should be structural - embedded in the constitution, itself.

That is exactly what the court articulated in The Marriage Cases. In order for Prop. 8 to be a revision, then, it would have to upset that fundamental order.

Our attorneys made some strong, and a few creative arguments to that effect. Equality is not a divisible concept; there is no such thing as a little bit of equality. Any attempt by a majority to undermine constitutional equality destroys its integrity.

But the integrity of equal protection is not the question before the court - only its continued existence. And it was clear to the Chief Justice that Prop. 8 had left intact both the equal protection principle, and, in fact, the equal legal rights that same-sex couples have in California. The voters constitutionalized the word "marriage," a frivolous use of the initiative power, but one that does not change the structure of California's constitution.

Linguistic shenanigans did not seem to strike the Chief Justice as something momentous enough to amount to a revision of the state constitution. The court would still have its constitutional authority to protect gays and lesbians from majoritarian laws that gave them lesser rights - and that would presumably include laws to reduce their rights as couples. Any law purporting to do so would be a violation of equal protection, period.

More important, this should logically suggest that any attempt to change the constitution to provide same-sex couples with fewer rights than opposite-sex couples would, in fact, be a revision of the constitution, requiring a 2/3 vote of the Legislature before it could go on the ballot. This is not what the proponents of Prop. 8 did, but if anyone tried, they could not do it with a simple amendment.

The pettiness of Prop. 8 is glaringly obvious to me, but will be highlighted if the court allows (as most people expect) the existing 18,000 same-sex marriages to continue. In the face of the simplest possible solution - any two consenting adults may legally marry one another - some heterosexuals continue to insist on an ever-devolving marital muddle that will plague us until common sense catches up.

Here's a TV ad called "Hope," from the Equality California people, who are already preparing for a rematch on marriage. And here's why I think it's potentially important.

I talked the other day with a California-based political consultant who explained that the problem we faced with Proposition 8, and other anti-gay-marriage ballot fights, is that short-term tactics and long-term strategy work at cross purposes. In the short term, the election outcome is decided by a narrow group of swing voters, and these folks are turned off by appeals that feature gay people or gay couples (especially with kids). But running vague, de-gayed ads that appeal to this group means we never make the positive case for marriage, which is the key to moving public opinion and mobilizing support in the longer run.

The answer? The time to educate the public on gay people and families is when we are not fighting a ballot initiative. Now, in other words.

Raising dollars for strategic advertising outside the context of a political campaign can't be easy, especially in a huge media market like California's. Whether EQCA's campaign is affordable or sustainable is an open question. But the good news is that we are learning. And our strategic message, with its appeal to love and commitment and inclusion in the American dream and of course fairness, is a formidable weapon, when unholstered.