IGF CultureWatch

In response to conservative criticism, Senate Democrats dropped $400 million in HIV prevention funding from their trillion dollar "stimulus" spending bill. (I know, AIDS is not necessarily a "gay" issue, but the Washington Blade put this on their front page, so I'm going to comment on it.)

AIDS activists protested: "Michael Weinstein, president of the AIDS Healthcare Foundation...said critics are wrong in claiming HIV- or STD-related programs don't boost the economy."

That's an understandable response from a lobby, but it misses the point. The question isn't whether HIV prevention programs are economic stimulus; of course they're not. But then, neither is most of the spending in this monstrosity of a bill. And if it's going to provide billions to fund other non-job creating liberal-left initiatives, such as research into global warming, along with giving billions to the states to spend on whatever they please (i.e., pork), then just why not HIV prevention?

The answer is that Senate Dems felt that this was the one area they would be prudent to surrender. That's telling.

More. Yes, I realize that some relatively small, additional cuts have now been made from the original House bill, first in the Senate version and later as part of the Senate-House reconciliation . But as reader Avee comments, there remains in the bill massive amounts of funding for social initiatives that have nothing realistically to do with job creation. And the HIV funding was one of the first that was dropped (and from the original, totally larded-up House version), which is what I found to be telling.

Furthermore. Will the stimulus actually stimulate? Economists say no. And this, from Cato.

I confess I am no expert on New York politics, and might be able to use some help. This headline from the NY Times, No Gay Marriage Bill This Year, Smith Says," implies that the new Senate leader in New York will not bring a marriage bill up because he doesn't yet have the votes.

Is there some rule that prohibits unsuccessful bills from even being discussed in New York's legislature? I know some of the best debates in California's legislature were on gay rights bills that everyone knew would not be passed. It is good for gay rights supporters to have a formal platform to make their case. More important, there is enormous value in having gay rights opponents make their increasingly unpersuasive arguments in public with a spotlight on them. The more they are allowed to articulate their assertions where the general public can hear, the more sense our own arguments make.

Eugene Volokh has a good analysis of the nonbinding ruling by Judge Stephen Reinhardt holding DOMA unconstitutional. Reinhardt relies on language in some Supreme Court rulings about laws which have the "bare desire to harm" a minority.

But this is a gloss on the traditional rational basis level of scrutiny, and I think Reinhardt's opinion (it is not a ruling in the sense that it would apply beyond the employee whose rights are at stake) ultimately relies mostly on the more traditional standard - though he does explicitly cite the "bare desire to harm" rule.

What is most striking about Volokh's analysis, though, is that he says that DOMA could ultimately be held rational because "sexual behavior is indeed alterable for quite a few people." This is, in fact, true. But is it relevant?

Volokh argues that because some people are truly bisexual, the government could be rational in offering benefits only to couples of the opposite sex because it could serve to steer people into acting heterosexually. (And Volokh is quite clear that this is not something he, himself, believes.)

Let's concede this would be true for bisexuals. What about lesbians and gay men who are true Kinsey 6s - entirely homosexual in orientation. It is that distinction that makes all the difference to me. The law is binary (heterosexual activity is preferred, homosexual activity is - at best -- ignored), while sexual orientation is not. And while it might be said to be rational to encourage bisexuals to act on their heterosexual impulses, is it also rational to frame the law so that people who have no such impulses are left without any legal acknowledgement for their relationships?

The vagaries of sexual activity have long plagued the issue of gay equality. It would, of course, be extremely difficult to craft a law which acknowledges the complexity of sexual orientation -- which is why lesbians and gay men think it makes most sense for the law to simply be neutral with respect to sexual orientation. But it is manifestly unfair to test laws which acknowledge only heterosexual orientation (to the complete exclusion of homosexual orientation) by their effects on sexual activity.

The California Supreme Court will hear oral arguments on the validity of Prop. 8 March 5.

The key legal question presented is whether Prop. 8 is a revision to the California Constitution or an amendment. But that is the legal question. What the court will be deciding for non-lawyers is whether a majority of California's voters can change the state constitution to require discrimination.

Our country has a long and miserable history of laws that permitted and sometimes required discrimination, and a more recent and noble history rejecting them. In those cases where courts rather than legislatures have overturned discriminatory laws, it was based on principles enshrined in constitutions -- the operating system for all ordinary laws. One of the core functions of courts in our system is to make sure democratically passed laws live up to the highest ideals we have set out in our constitutions.

California's Supreme Court will be deciding whether voters can change the principles in the state constitution, itself, to elevate discrimination against same-sex couples to a fundamental axiom. The court in The Marriage Cases overruled two statutes defining marriage because they violated the constitution's promise of equal protection. Prop. 8 was specifically designed to change what its proponents believed was a flaw in the constitution that would permit such equality.

The proponents of Prop. 8 did not characterize their initiative as changing the constitution's equal protection clause, but that is what they gathered the votes to do.

A smart piece on the op-ed page of the LA Times today makes the case that California's constitution is too easy to amend -- easier than the constitutions of most states, the federal charter, and even the founding documents of the National Football League and the UCLA Academic Senate.

But it does appear that the Prop. 8 folks used the rules that exist to give the equal protection clause an asterisk. If the court upholds Prop. 8, those same rules will govern the obvious and necessary initiative to restore the constitution's promise.

Thanks to Jon and Stephen for this invitation. IGF has been close to my heart since its inception, and I'm glad to be here as it moves into a new stage.

For those who don't know me, I've been working on gay issues here in California since the mid 1980s, when California passed the first domestic partnership ordinances. I confess to being a California partisan, even when (as now) our state is in the midst of both political and economic chaos. My only defense is the beaches. . .

Despite the common stereotype, it's important to remember that California is not a wildly liberal state. During the entire 20th Century, we only elected four Democratic governors -- and two of them were named Brown. And the last Democrat we elected got recalled from office.

I mention that because it shows it's not just liberals -- or Democrats -- who support gay rights, and are willing to vote for them. The Prop. 8 fight demonstrates that we still have some convincing left to do, but don't forget that this election was a straight up-or-down vote on marriage, and only marriage -- and we got about 48% of the vote. And that 48% was among people who voted in one of the highest-turnout elections in the nation's history.

We have accomplished this is a state where only a little over 40% of the voters register as Democrats -- and not all of them voted against Prop. 8. It is tempting and convenient to think in partisan terms, but for those of us engaged in the fight for marriage equality, it is not enough. There are no partisan arguments that will change the minds of the people who remain to be convinced. That's why I value IGF, and why I'm glad to be part of this conversation.

We hope you like our new design. Here's another new change: Jonathan Rauch and I would like to welcome two new bloggers to "Culture Watch." They're no strangers to IGF: James Kirchick (bio here and David Link (bio here) have been IGF contributing authors for some time. Now, they'll be sharing their thoughts on a more frequent basis, via blog posts. IGF's mission remains the same: "We deny 'conservative' claims that gays and lesbians pose any threat to social morality or the political order. We equally oppose 'progressive' claims that gays should support radical social change or restructuring of society." As our mission statement continues, "We share an approach, but we disagree on many particulars." Certainly, just as Jon and I disagree on political particulars, David and James (we call him "Jamie") hold differing views along the political spectrum. But as with our other contributing authors whose views are shared here, we hold in common a disdain for the politically correct boilerplate that too often takes the place of real thought and argument. Look for their posts here, coming soon.

The New York Times looks at lesbian communes founded in the '70s, still in business but worried about new members and survival:

Alapine...is one of about 100 below-the-radar lesbian communities in North America, known as womyn's lands (their preferred spelling), whose guiding philosophies date from a mostly bygone era.

The communities, most in rural areas from Oregon to Florida...have steadily lost residents over the decades as members have moved on or died. As the impulse to withdraw from heterosexual society has lost its appeal to younger lesbians, womyn's lands face some of the same challenges as Catholic convents that struggle to attract women to cloistered lives.

It's certainly a more sympathetic portrayal than the Times would give to, say, a men's club.

"The gay community's failure to show tolerance is costing it friends." That's the last, portentous sentence of this column by Debra Saunders. She's a gay-friendly center-right columnist who has supported gay marriage in the past. But she did a "slow burn" as gay-rights advocates and courts rejected civil unions and as Prop. 8 supporters faced public condemnation by name.

With all respect to Saunders, I don't think there has been a "post-passage campaign to intimidate Prop. 8 supporters," though there certainly have been nasty and objectionable episodes, recycled again and again in an example of plural anecdotes becoming a trend. To the extent that anyone is harassed for supporting (or opposing) a ballot initiative, the answer is not to lash out at gay marriage but to protect donors' privacy, as we do voters'. That case is well made here.

But never mind. The important thing here is that Saunders is a canary in the mineshaft. Let's be realistic, gay folks: marriage has been heterosexual since...forever. To denounce as bigots or haters those who are reluctant to change marriage's age-old boundaries-even if they support civil unions, marriage in all but name-is a moral overreach and a strategic blunder of the first order. We have enough enemies. Let's tone down the accusatory rhetoric before we alienate our friends.

Unlike, I sometimes feel, practically every gay or lesbian person in the country, I'm doing my best not to make up my mind about President Obama before he's been in office, say, a week. Given the scope of the economic and foreign-policy problems he's facing, I think it's silly to expect quick action on gay issues. In fact, our side should be hoping he remembers the lesson of Bill Clinton and takes time to build credibility and lay groundwork before tackling, say, gays in the military. I'm cautiously optimistic that having Rick Warren give the inaugural invocation was a shrewd way of reassuring the cultural center-right that subsequent gay-friendly policy changes won't augur a sharp left turn.

Still, it's useful to remember that, once upon a time, George W. Bush looked like a different kind of Republican, one who might bring gays into the Republican big tent. Remember the Republican Unity Coalition? It sought to make homosexuality a "non-issue" within the Republican Party, and Bush seemed receptive-until, as coalition founder and (former) Bush family friend and fan Charles Francis puts it in a Washington Blade article, the Supreme Court struck down sodomy laws in 2003. Then Bush's head spun faster than Linda Blair's and all bets were off. Writes Francis, who shuttered the RUC and wrote off Bush:

This was the beginning of a years-long failure and squandered opportunity for the Republicans, who sure lost me, and now, most important, wonder how they could have lost a whole new generation of Americans.

Bush never came to office expecting to slam the GOP's door on gay Americans for a generation. Events forced him to choose and he chose wrong. As former Bushie Pete Wehner points out, governing is harder than promising. We'll see.