IGF CultureWatch

Some Democrats in Congress may soon press for repeal of the military "don't ask, don't tell" gay ban, an issue that Obama would rather not come up, suggests The Politico. But some anti-gay activists are eager to take it on, thinking it will be a winner for them. They might want to consider what a straw poll of 1,750 conservatives (of whom nearly 60% were college age) at last weekend's CPAC confab in the nation's capital showed. Look what issue least motivates them. (Okay, if you don't want to open the nifty PowerPoint, the answer is: only 1% indicated "letting gays serve openly in the military" was the Democrats' initiative they most feared, whereas "expanding government with new spending programs" was #1, with 36%).

Also at CPAC, a panel sponsored by PajamasTV looked at finding common ground, including the question Marriage? Civil Unions? Is There a Compromise? (click on the link and keep scrolling, using the orange arrow way over on the right, to find this segment, and then click on the title). Glenn Reynolds, blogger at InstaPundit.com, said his ideal world is one in which "happily married gay couples have closets full of assault weapons." (Hat tip: Rick Sincere)

Stephen Miller's post links to a CPAC video discussion of same-sex marriage that deserves some comment.

One of the classic uses of humor is to release tension, and the discussion shows that even conservatives who want to address the question of gay marriage seriously are still uncomfortable with the subject and need a bit of comic relief. The results are revealing.

The first speaker, Scott Ott, tries to diminish gay marriage arguments he finds fatuous, mentioning hospital visitation rights. He dismisses this is a real argument, saying he's been to a lot of hospitals, and no one's ever asked him if he's "having sex with a sick person."

That got a big laugh, and I'm sure he's correct. But it entirely misses the point. Hospitals frequently have special rules permitting greater visitation rights for family members than others, for example outside of normal visiting hours, or in intensive care units where non-family members are not permitted. It would be the rare spouse who would be refused these small mercies. But because same-sex couples cannot get married, more than a few of them have, in fact, been told they cannot see their partner, the reason being that they are not a member of his or her family. More and more hospitals have seen the cruelty such a policy imposes on someone who's obviously grief-stricken, as any loved one would be in a hospital, and have taken a more common sense approach.

Ott's dismissal of this as a problem is a cheap shot, and does him no justice if, as other parts of his comments suggest, he wants to be viewed as fair-minded in this debate. Anyone who does not understand how the lack of any recognized family status could be a problem for same sex couples who cannot marry is not thinking very hard about the other side.

Later in the discussion, Instapundit's Glenn Reynolds says his ideal world is one where "happily married gay couples have closets full of assault weapons." This, too, got a huge laugh. It's a fine line, and pretty welcome around these parts.

It is, however, the prelude to a dream, and Reynolds then moves on to his position that the state should recognize all willing couples as civil unions, and leave marriage up to the churches.

There are several people I respect who take this principled ideological position. But to those of us toiling in the real political world, it looks like a way of avoiding the question, which is what to do about the laws we have in the world we live in. I am glad to have whatever rhetorical support we can get from conservatives like Reynolds. But the rubber does sometimes meet the road, and as a thoughtful and often contrarian conservative, Reynolds must know that more of us want to get happily married under existing laws (with or without closets full of assault weapons) than want the state to stop recognizing marriages of any kind.

I'd rather hold him to his punch line than to his serious proposal. But the punch line, I'm afraid, is just that.

This Thursday, California's Supreme Court will hear oral arguments on the validity of Prop. 8. Nicholas Goldberg has a good summary of the arguments at the LA Times.

I'll only add one thought here, which will set me apart from every spokesman, reporter, advocate and innocent bystander. The Supreme Court's decision (when it comes -- under court rules the justices have 90 days after oral argument to issue an opinion) will not be a ruling in favor of or against either side.

The court will decide some very important constitutional issues: What is the scope of a constitutional "revision" as opposed to an "amendment?" Is constitutional equality an inalienable right in California that requires more than just majority voter approval? Does Prop. 8 apply retrospectively to the marriages contracted prior to the amendment's passage?

But the answers to these questions will not amount to a judgment by the court on the moral, legal or social appropriateness of same-sex marriage, or on the wisdom of the majority who passed Prop. 8. The court has already said that the constitution, prior to its amendment, protected marriage as a fundamental right for all Californians, including homosexuals, and that its equal protection clause guaranteed the right of homosexuals to marry the person of their own choice, even if that person is not of the opposite sex.

The question before them now is whether a majority can amend the constitution, itself, to withdraw those rights. That is one of the hardest decisions any court in a constitutional democracy will ever have to make.

While it is a matter of political cliché to assume that judges act in bad faith and on their personal whims - and there is certainly evidence that some judges in this country are guided by their political beliefs - I challenge anyone of good will to provide evidence that the justices of California's Supreme Court engage in that kind of abuse of power. Let me say for the record that I have followed this court very closely for a couple of decades now, and I believe its present justices are among the most apolitical I have ever seen.

The questions before them are impossibly hard to answer. But they are structural questions about the fundamental rules of the democracy. The answers the court provides will not be a "victory" for gays or for religious believers. They will do no more than guide Californians in taking our next steps.

This will come as a shock to the perpetually shockable, but this ruling like the court's last ruling on marriage, will not end the debate.

I'd like to expand on some of the comments to Jon's post.

The authors of this proposal do not accept the premise of gay marriage because it is inconceivable that the category of "marriage" could include same-sex couples. Anyone who even thinks such a thing is a "revisionist" rather than a "traditionalist." Marriage simply is "a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child."

The compromise, then, is to create a new legal category entirely for same-sex couples, but one that includes any other couples who are not a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child. Revisionists would leave the category of marriage alone, and obtain their rights as a couple under the law through inclusion in this new grouping.

In commenting on Jon's post, esurience says this lumps gay relationships with incest and platonic relationships. Rob chimes in that this "seriously debases same-sex relationships to the level of friendships and blood relations."

I couldn't agree more. The question is whether committed, adult same-sex relationships are more like aging sisters who share a home or an opposite-sex married couple.

The authors of this proposal are quite honest that they find it impossible to view same-sex couples in the category of marriage. But if these are the two categories offered: aging sisters or married couples, I'm betting more Americans who don't already have an opinion, would view same-sex couples as more like the married couples than the sisters. With apologies to the traditionalists, the days when a majority of Americans simply closed their eyes to the loving - and sexual - relationships of same-sex couples are coming to an end.

There is no need to go so far out of our way to invent an entirely new category of relationship whose only point seems to be to grant same-sex couples some kind of rights while not acknowledging them in law as same-sex couples. The attempt - with its obvious administrative knots and hurdles, not to mention its unnecessary costs to both government and business - is a relic of a time gone by, with an appeal only to those who continue to think Don't Ask, Don't Tell is a good idea. The nation is talking about same-sex marriage not only because gays have asked, but because Americans are willing and ready.

The problem with this proposal is not that it is not a compromise - it clearly is - but that it misses the point of the conversation everybody else is having.

Here's another gay-marriage compromise proposal. David Blankenhorn and I proposed one last weekend, and I'm heartened by the broad discussion it has engendered. I'm even more heartened by the emergence of a second, quite different, approach.

The authors, Ryan T. Anderson and Sherif Girgis, propose creating a federal civil-union status that would be open to all couples who can't legally marry-including couples, such as sisters, who can't legally have a sexual relationship. That way, the government would continue to formally recognize only one kind of sexual union, man-woman marriage. In exchange, "revisionists" (gay-marriage supporters) would agree to live with the Defense of Marriage Act, which says that the federal government will recognize only man-woman couples as marriage.

So we'd go from today's world, where one side demands full marriage rights and the other side rejects even minimal recognition of gay couples, to a world where same-sex couples got federal civil unions-which they'd have to share with a few nuns and aging sisters-but gays agreed not to ask for more from Washington. States, presumably, could continue to tussle over gay marriage, but the federal debate would be over.

There's much to think about here, but one practical question strikes me as a likely show-stopper: How could any agreement not to pursue changes in DOMA bind future activists and politicians? A gentlemen's agreement wouldn't be enforceable, and a constitutional amendment would be both difficult as a political matter and unacceptable to SSM advocates, who will see it as writing inequality into the Constitution-the nuclear option, from our point of view.

That's just a first-blush reaction, though. I think the most important thing about Anderson-Girgis is its willingness to reach out and try to do something for same-sex couples, as well as something to mitigate the culture wars. It should be welcomed by SSM advocates as a good-faith gesture, and it deserves to be broadly and respectfully discussed. And it's another sign that maybe, just maybe, the ice is beginning to thaw around the frozen gay-marriage debate.

In responding to Jon Rauch and David Blankenhorn's proposal on DOMA, Maggie Gallagher makes two assertions about compromise that deserve discussion. First, she says that gay marriage proponents are successful enough that they don't really need to compromise ("I think the pro-marriage side is going to have to demonstrate an ongoing capacity to organize far more effectively before the gay-marriage juggernaut is going to be looking for a way to compromise."), and then says that it doesn't matter because gay rights groups don't show a willingness to compromise, anyway, so Congress and the President won't force one on them.

The first statement is no more than political rhetoric. A gay marriage "juggernaut?" Is there some wave of gay marriage laws getting passed that I've missed? I've seen political figures talk down their own success before, but this sets some kind of new standard for tactical overpraise of the opposition.

The second assertion, though, is even more canny. It's the old unilateral disarmament argument, fashionably retooled. The other side has to go first, and since I know they won't, I'll be damned if I'll give up my nukes and then live at their mercy.

It is exactly this mindset the proposal is designed to address. No one here actually has anything nuclear. The right continually says that they are worried about gay marriage's potential infringement on religious liberty. In Hawaii this week, the thousands of people demonstrating against a civil unions bill were virtually all, proudly religious believers worried about having to "force churches to lend out their facilities," and "open up a Pandora's Box of legal suits." The compromise takes that concern seriously, and says that no state civil union bill can get federal recognition unless it guarantees that churches will not have to recognize the relationships.

But it also takes seriously the concerns of same-sex couples, who, in most states, have no rights as couples at all. As is true of most compromises, it involves both sides to give a little. It provides that if gays can get a state to recognize their relationships - and it does not require any state to do that - then the federal government - which includes elected representatives from that state whose citizens are affected - will follow suit. As just one example of the problems the status quo causes, same-sex married couples in Massachusetts must now file two sets of income tax returns: one for Massachusetts, as a married couple, and one different set for the federal government, which requires them to identify themselves as unrelated individuals because DOMA requires the federal government to blind itself to any lawful same-sex relationships.

More important even than this, the compromise addresses voters who support neither gay marriage nor a total gay marriage ban. Unlike the absolutists on either end of the spectrum, there are a large number of Americans who understand both the concerns of religious believers and same-sex couples, and think both should be given some legal effect. It is safe to say - and Rauch and Blankenhorn do - that this compromise will not make any extremists happy. But that's a truism about compromise - it is, in fact, the definition of what a compromise is.

I cannot speak for any gay rights organization, and I would expect that Maggie is right they will oppose this compromise as she does. But compromises aren't for the ideologues, they're for the rest of us. The test of a compromise is whether it appeals to the middle. And, ultimately, that is how we'll know whether this one succeeds or not.

If you have a taste for how amoral political campaigns can be, you have to read Frank Schubert and Jeff Flint's Passing Prop 8. They are the political consultants who ran the Yes on 8 campaign.

The article is, of course, very self-serving, but don't hold that against it, since that's the ocean these characters swim in -- if you don't bang your own drum in the political consulting world, you can't complain that no one heard you. It's David Mamet's world, they just populate it.

What is most poignant, though, is that you will not find any moral judgment in the article -- for or against same-sex marriage. Every victory, every setback described is tactical. It's a military debriefing, dissecting how a battle was won.

For those of us to whom the very heart of same-sex marriage is moral (and I include people on the right as well), it is good, I think, to step back and see how cold and empty the world looks to people who lack that capacity.

It's also good to see them confirm that 40% of their funding came from Mormons.

I wonder how many viewers-especially among those who voted to ban gay marriage-agree with novelist and Pajamas Media columnist Andrew Klavan's reaction to Sean Penn's best actor acceptance speech for Milk:

Let's say you believe that gay marriage should be legalized and you want to convince those among your fellow Americans who have reservations. It seems to me the wisest, most effective course would be to assume the opposition to be people of good will with real concerns and to argue your position before them forcefully but reasonably. Now let's say you're a narcissistic windbag who wants to parade yourself in front of people who agree with you as an icon of crusading righteousness when you're really just a violent lowlife who idolizes dictators and tyrants while attacking your own country. Ah, then you would be Sean Penn. Winning an admittedly deserved Oscar for an excellent performance in Milk, Penn used his time at the podium to declare everyone who doesn't support his cause hateful and shameful, a disgrace to their grandchildren. Yeah, yeah, yeah. Leftists are always talking about diversity but if you disagree with them-you're a monster. What a schmuck!

Klavan's reaction is over the top, but I think Penn's plea for voters to reconsider their opposition to Prop 8 would have been more effective without comingling it with his adoration for Obama. At some point, supporters of gay equality are going to have to realize that they have to win over Americans beyond the liberal-left Democratic party (although, admittedly, winning them over would be a start).

Separately, Wednesday's New York Times includes a range of letters regarding the Rauch/Blakenhorn op-ed calling for a compromise on marriage.

Worth reading-and pondering: the two political consultants who steered anti-gay-marriage Proposition 8 to victory in California, Frank Schubert and Jeff Flint, explain candidly how they did it. Some points of note:

1) The "yes" side won because it set the terms of the argument. By focusing on education and gay marriage supporters' (alleged) arrogance, they defined the battle as being about gay intolerance (ramming SSM down schools' and voters' throats) instead of about tolerance of gays. The anti-8 side never effectively responded. Instead it denounced the "yes" ads as unfair.

2) A decisive moment toward the end-"the break of the election"-was an own-goal that the pro-gay side scored against itself. "In what may prove to be the most ill-considered publicity stunt ever mounted in an initiative campaign, a public school in San Francisco took a class of first graders to City Hall to witness the wedding of their lesbian teacher. And they brought along the media." Yes-as Schubert does not say-the field trip was egregiously misrepresented by the pro-8 forces. But it was an own-goal nonetheless.

3) The pro-8 forces were so sure that the antis' effort to portray opponents of same-sex marriage as bigots and discriminators would backfire that they didn't even bother to respond. They were right.

I've been arguing for some time that we will not win marriage by dismissing opponents as haters and contrary arguments as proof of bigotry. We must make a positive case and respond frankly and respectfully to opponents' qualms. We must be prepared for the obvious attacks, instead of believing that justice will prevail. Above all, we must not talk to the voters as if we were entitled to their support ("Don't put rights up to a vote," etc., etc.). If you don't believe me...ask Frank Schubert.

The Sunday New York Times brings a new op-ed by Jonathan Rauch, writing in collaboration with same-sex marriage opponent David Blankenhorn of the Institute for American Values. In A Reconciliation on Gay Marriage they write:

We take very different positions on gay marriage. We have had heated debates on the subject. Nonetheless, we agree that the time is ripe for a deal that could give each side what it most needs in the short run, while moving the debate onto a healthier, calmer track in the years ahead.

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

More. Dale Carpenter responds:

My initial and very tentative reaction, as a same-sex marriage supporter, is that the Blankenhorn-Rauch compromise probably gives little away since SSM was never really a threat to religious liberty anyway. As a practical matter, gay families gain a lot in very important federal benefits in exchange for what appears to be barring lawsuits that either weren't -- or shouldn't -- be available. The devil is in the details -- what exactly do "robust religious-conscience exceptions" cover? -- but the op-ed starts a conversation about federal legislation that might be politically achievable in the near future.