IGF CultureWatch

IGF's Jonathan Rauch has joined the anti-gay marriage proponent David Blankenhorn in the New York Times to come up with a fascinating compromise on DOMA: The federal government would recognize same-sex relationships contracted in those states which approve of them (whether as marriage, civil unions or domestic partnerships, though the federal government would call them all "civil unions"), but only if the recognizing state has "robust religious conscience exemptions" that would assure religious believers who oppose homosexuality their church would not have to recognize or honor the unions.

The compromise tests the veracity of the claim that religious believers worry civil recognition of same-sex relationships will invade their belief system through the enforcement of civil rights laws which require gays to be treated equally. The right has been able to scare up a few anecdotes about this misuse of civil rights laws: a wedding photographer forced to photograph a lesbian wedding; a same-sex couple who wanted to take advantage of a church-owned gazebo, which the church offered for use to the public; and churned them into a froth of paranoia about governmental intrusion into religion.

I'm with Jon in offering this proposal up publicly. I am happy to let the right know that we are dedicated to stopping this cascade of anecdotes. If they want additional assurance that the first amendment's separation of church and state means what it says, I will be on the front lines to add a statutory "and we really mean it" clause.

But I don't think anyone will take us up on this offer, since I don't think this is really their worry. It is not the first amendment they are concerned with, it is the fourteenth. It is equality that is the problem for them. Any government recognition at all of same-sex couples is more equality than they can bear.

The key, I think, can be found in this statement from the proposal: "Our national conversation on this issue will be significantly less contentious if religious groups can be confident that they will not be forced to support or facilitate gay marriage." What makes Jon and David think that religious groups want to have a "less contentious" national debate? It is heated controversy they crave and thrive on.

I am in complete agreement with this proposal, and think anyone who is participating in this debate in good faith could support it. That, I am afraid, is why I'm so doubtful about its success.

The New Mexico legislature is set to vote on a domestic partnership bill. As the El Paso Times reports:

The measure allows for domestic partnerships for unmarried couples, including gay couples. ... Supporters say the legislation will provide unmarried couples - regardless of gender - with [some] protections and legal responsibilities given to marriage couples, including rights involving insurance coverage, child support, inheritance and medical decision-making.

This would be a good mid-step advancement for same-sex couples. But why don't opposite-sex couples just get married? And since they can get married, why is it in the common interest to offer them state-provided benefits for "marriage lite"?

As a commenter to my post last week (on French straights abandoning marriage for easily dissolvable civil solidarity pacts) reminds us, Jonathan Rauch summed up the situation nicely in his book Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America:

If marriage's self-styled defenders continue along the ABM [anything but marriage] path toward making wedlock just one of many 'partnership choices' (and not necessarily the most attractive), they will look back one day and wonder what they could possibly have been thinking when they undermined marriage in order to save it from homosexuals.

Many heterosexuals argue that they want lesbians and gay men to be treated fairly, even equally in the society, and at the very least to be tolerated - with the proviso that they must also be tolerant of others.

But what does that fairness or equality or tolerance look like in law?

Equality Utah decided to find out. They offered a package of five bills, ranging from health care coverage for partners in same sex relationships to laws prohibiting discrimination in employment and housing to one setting out the simple ability of same sex couples to inherit one another's property.

All of them failed in the legislature.

In doing this, Utah has become the test case for good faith in the debate over gay rights. What legal rights will the vast heterosexual majority pass that will assure lesbians and gay men are treated fairly, equally or with tolerance?

Many legal rights have nothing to do with a person's sexual orientation, so of course they apply equally to heterosexuals and homosexuals: the right to own property; the right to apply for a driver's license and, if obtained, use the public highways; the right to a lawyer when accused of a crime. . .

But the test is not whether homosexuals are citizens - virtually no one believes they are not. The test is how the law treats them in contexts where sexual orientation matters. Stated another way, many times the law presumes citizens are heterosexual, and has been designed to account for this fact. Given that the vast majority of citizens are heterosexual, and that in the past homosexuality was at best a personal vice not to be publicly acknowledged, and at worst a crime for which imprisonment could be and was imposed, it makes sense that the civil law would not, historically, have taken homosexuality into account.

Today, homosexuality cannot itself, be made criminal, putting it, finally, on the same legal footing as heterosexuality has always been. But that is not yet true in the civil laws where heterosexuality matters and is presumed. Utah has failed the test of good faith. It has said, on the one hand, that it wants to treat homosexuals fairly and equally and with tolerance, but has left intact laws which take heterosexuality for granted and treat homosexuals quite unfairly and unequally.

Ironically, it was the constitutional principle of equal protection that was designed to guard against exactly this kind of treatment of a minority by a large majority. But in today's political discourse, constitutional equality is not only minimized (by attacks on judges who try to apply it), it is, in fact, being withdrawn by voters as a principle to rely on at all when homosexuality is involved.

That leaves lesbians and gay men to rely on the good will of the voters. Utah shows how the promises the majority makes can be empty of any meaning at all.

He's our newest IGF contributor-an undergraduate and columnist at American University, both openly gay and openly Republican. "I have been discriminated against more by Democrats than by Republicans," he writes. Read it here. We suspect, and hope, we'll be hearing a lot more from Alex.

A decade ago, Jonathan Rauch wrote in "What's Wrong with 'Marriage LIte'?" that denying gays access to marriage was resulting in domestic partnerships and civil unions that were less than full marriage but often open to heterosexuals (so as not to be seen by the left as "discriminatory" and by the right as "legitimatizing homosexuality"). That worked to weaken, not strengthen, marriage as an institution. As Jon put it, "Being against gay marriage and being pro-marriage are not, as it turns out, the same thing."

Now the Washington Post reports that, in France, Straight Couples Are Choosing Civil Unions Meant for Gays, in large numbers. "The brief procedure of the Civil Solidarity Pact, or PACS in its French-language abbreviation" are being chosen over marriage by a growing number of French men and women as "a legal and social status, halfway between living together and marriage."

PACS offer the tax and many legal benefits of marriage but:

"If one or both of the partners declares in writing to the court that he or she wants out, the PACS is ended, with neither partner having claim to the other's property or to alimony."

In other words, the couple never become a single legal and economic unit, and are far less bound than business partners.

Yet today, heterosexual couples entering into a PACS agreement has grown from 42 percent of the total initially to 92 percent last year. For every two marriages in France, a PACS is celebrated, and the number is rising steadily.

At the same time, the Post reports, "The social stigma once associated with having children outside marriage has largely disappeared.... More than half the babies in France, including those of PACSed couples, are born out of wedlock." Overall, "The relaxation of marriage-related social strictures marks a significant departure from long-established French family traditions."

Some would celebrate, declaring that marriage is an oppressive bourgeois institution. I think a more effective message is that gays want to strengthen marriage by joining it, not help to weaken it.

"Less than marriage" should, at most, be a way station for same-sex couples until society is ready to grant us marriage equality, not a permanent alternative used mostly by shacked-up straights to gain the benefits of marriage with few of the mutual responsibilities, and with no assumption of permanence.

It might be useful to revisit the issue of Prop. 8 boycotts, now that the post-election fever has died down a bit. At least two boycotts are still in effect and in the news. The Manchester Grand Hyatt Hotel in San Diego is the subject of a boycott because its owner, Doug Manchester, gave $125,000 in seed money to get the initiative off the ground. But for Manchester's very generous donation early on, when it counted most, Prop. 8 might have gone nowhere. Bill Clinton spoke there on Sunday while protesters complained outside.

In Sacramento, Leatherby's Family Creamery, a well-established ice cream shop, is also still subject to a boycott because the family gave $20,000 to support Prop. 8. The owner, Alan Leatherby, says that while the emotions have faded, he still sees effects of the boycott more than three months after the election.

The first thing to note is that neither of these is a case of a donor giving a small amount to Prop. 8. The furor after Prop. 8 centered on people who had given tiny amounts of money and experienced consequences out of proportion to their contribution. But that legitimate concern overshadowed the issue of taking action against larger donors. Yes, there is unfairness in targeting $100 and $250 donors. But is it also unfair to boycott donors of $20,000 and $125,000? That question got lost, and shouldn't have.

The second point is that there is a difference between Leatherby and Manchester. Alan Leatherby is comfortable defending his donation publicly, and says he answers emails and phone calls about his donation. He had lunch with a 70-year old gay man who contacted him. In contrast, Manchester, like many other large donors, seems to have disappeared into an undisclosed secure location.

I can respect Leatherby. I won't be patronizing his shop, since I believe he is wrong and misunderstands the religious text we share. But he is willing to discuss his beliefs, and that is both honorable and civic-minded. Manchester, and those who won't personally engage the debate at all, are the real danger, not only to gay rights, but to democracy. No one is obliged to articulate their reasoning, but given the size of his donation, Manchester's silence suggests either that he does not have a defense or, more disturbingly, does not care about the consequences of his donation.

In this, Manchester is like Bill Clinton, who hid behind a spokesman and, himself, remained silent in his speech at the hotel about why there were protesters outside. I was a strong supporter of Clinton, and truly believed he understood gay equality, but was confounded by the high-wire of this issue's politics. But now it increasingly appears he really does not care very much, like Doug Manchester, about the damage he causes. I'm not sure how you boycott an ex-president, but I'm wondering if that might be possible.

One of the most interesting and, I think, positive developments in the gay rights movement is the current evolution of our national holiday from Halloween to Valentine's Day.

Gays helped change Halloween from its tame, American children's incarnation into a street festival for gay and straight adults. The celebrations grew so large in West Hollywood and the Castro that local government had to step in to enforce some limits. This adult Halloween is a party where people can play with individual identity, not to mention with each other.

Valentine's Day is about relationships - specifically romantic relationships. From kiss-ins in Boulder, to marriage license requests (denied) at county offices across the nation, we're storming Valentine's Day.

And how could we not? There is no more obvious example of our exclusion from the central organizing principle of most people's lives than this celebration of the fundamental love our society elevates for heterosexuals, but ignores the existence of among homosexuals.

Halloween is the context in which most heterosexuals have traditionally viewed us. But they have to see us on Valentine's Day as well, celebrating not just our identities but our loves. Valentine's Day is (you should pardon the necessary pun) the very heart of our movement.

Read to the bottom of this New York Times story for a revealing tidbit. The Brits bar entry of a Dutch politician and provocateur on grounds that he offends Muslims. Yet they have admitted "several Muslim clerics from Arab countries with a history of inflammatory statements on terrorism, women's rights and homosexuality." Increasingly this seems to be the pattern in Europe. Fear, rather than principle, appears to be at work, and apparently homosexuals aren't scary. But then, that's how it always is with speech restrictions.

That's the question posed by the Portland-based writer Taylor Clark over at Slate. The sex scandal currently roiling the Pacific Coast city has all the makings of a steamy soap opera (and then some -- I mean, really, Beau Breedlove?). It's attracted an inordinate amount of attention not only because of the dramatic nature of the charges (kissing in the City Hall bathroom!) but because the individuals involved happen to be gay.

Clark argues that were Adams straight, he would have resigned long ago. She makes the extra special effort to make clear that she's not the sort of person who believes that one's sexuality should affect the way we view these matters. Rather, in liberal Portland, "When you look out on the pro-Adams crowds," you don't just see gays and political hacks dependent upon the mayor's patronage championing his cause. The bulk of the people coming to his public defense are "young, educated liberals who feel unqualified to spit venom about Adams' sex life-despite the fact that they'd be far less restrained with a straight politician." That liberals would hold gays to a favorable double-standard when it comes to sexual behavior is probably true and troublesome. But it's the topic of another column. Yet as far as explaining why Adams hasn't yet departed office, I'd say it's logically sound. L'affair Adams could only play out in a handful of cities across America, Portland being near the top of the list. But Clark leaves unexplored another angle to the world of gay sex scandals that might explain why Adams is still in office.

A look at past sex scandals involving gay politicians would be instructive. Barney Frank, who was censured by his colleagues in the House of Representatives for fixing an the parking tickets of an erstwhile lover who was simultaneously running a brothel out of Frank's home, ultimately survived, in spite of many calls for his resignation. The scandal had little effect on Frank's political fortunes; he's since risen to become one of the most visible and powerful Democrats in the House. Perhaps were it not for his scandal Frank would be speaker by now, but there's really no way of knowing. After all, Frank's prostitute/parking ticket problems didn't stop him from becoming Chairman of the House Financial Services Committee nor the most visible (and eloquent) defender of Bill Clinton during the impeachment process.

The other prominent gay political scandal in recent memory was that of Mark Foley. Unlike Adams, Foley never touched the objects of his illicit affection, never mind carry on an affair with them and then lie about it to the media.Yet literally within minutes of the dirty instant messages hitting headlines, Foley had already resigned, hitched a flight out of DC, and announced he was entering rehab. It wasn't until last year that Florida and federal officials announced that Foley hadn't broken any law. What can explain the different ways in which Adams, Frank and Foley were treated?

Party affiliation. Sam Adams and Barney Frank are both Democrats, whereas Mark Foley is a Republican. It didn't matter that Foley had a rather sterling record on gay rights issues, the mere fact that he was a member of the GOP was enough to garner the outrage of the Gay Left. Perhaps the fact that Adams is just a mayor, whereas Foley a congressman, explains the different responses. But Barney Frank, after all, was a congressman during his own brouhaha. Moreover, in this internet-driven world, the details of the love life of Sam Adams and Beau Breedlove are available to anyone in the country and have been scrutinized by major national media.

Sure, Foley wasn't exactly open about being gay (nor was he exactly closeted), yet I see little reason why a semi-closeted, pro-gay politician mired in a pseudo-sex scandal should be the recipient of such massive levels of hostility and ridicule whereas an openly gay politician mired in a real one ought earn largely unmitigated sympathy. In other words, if every aspect of the saga of Sam Adams were the same save his party affiliation he would have flown the coop yesterday.

The U.S. legal system mirrors our binary culture, where the public -- and, more specifically, the press -- craves either/or decisions. It is in that frame where drama is intensified, and we do love our drama.

The case of the San Diego firefighters forced by their superiors to ride in a fire truck in a gay pride parade shows the limits of binary thinking. Here is a case where everyone is wrong - or, more charitably, where each side is only right enough that they could bring a plausible case to court.

Why on earth did the fire department need to force some unwilling employees to appear in a parade they quite clearly were not anxious to participate in? If there really were not enough firefighters who would voluntarily ride on the truck in the parade, then the department's purported message about being gay friendly would seem to have a hole or two in it.

On the other hand, is riding in a gay pride parade really sexual harassment? Under the creepingly generous interpretations that term has received over the years, that's possible. But, as SNL's Seth Meyers might say, "Really?" Can the reactions of some crowd members in a public event really amount to the kind of sexual harassment envisioned by the long-ago drafters of this law?

More broadly, the firefighters' complaint shows one of the most invidious harms homophobia causes. Many heterosexual men still find it not just unpleasant, but actionable to be viewed as attractive by other men - though this is clearly changing pretty radically. Sexual harassment law provides the only context where being viewed as attractive is something to sue over.

Is the fear of homosexuality really so powerful that heterosexual men would not want to accept this pretty common compliment -- particularly for those heterosexual men who feel free, themselves, to dish a similar compliment out to random women. Sometimes a compliment is just a compliment, guys.

The case is now before a jury for the second time, after a first jury could not come to a verdict. The original jury seems to have got it right.