IGF CultureWatch

From the Los Angeles Times: "Among registered voters in California, 54 percent support a constitutional amendment to ban same-sex marriages, and 35 percent oppose it.... Of those who said they didn't know a gay person, 70 percent support the amendment..."

The Times tries to give the findings a positive spin as a "narrow margin" for the amendment's passage, but actually, I'm told, pre-vote polls on state anti-gay amendments have undercounted the support for banning same-sex unions by an average of 10% - amendment backers don't feel comfortable giving their real views, it seems, perhaps fearing that the pollster will think they're bigots.

Equality California's PAC is the right place to donate, I'm told.

If the anti-gay marriage amendment fails (as did a similar effort in Arizona two years ago), it will mark an historic turning point. If the amendment passes, marriage equality will be delayed in the nation's most populous state for perhaps a generation - which demonstrates both the promise and real risks of pursing a judicial strategy.

A panel of the Ninth Circuit Court of Appeals has issued an opinion favorable to Major Margaret Witt, a decorated Air Force nurse and Persian Gulf veteran who was discharged for being in a longstanding relationship with another woman.

The appellate panel cited the U.S. Supreme Court's Lawrence decision, which overturned so-called sodomy laws criminalizing gay sex, and which established that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment [revised from earlier posting]. The panel then remanded for lower court determination whether Don't Ask, Don't Tell (DADT) violated Witt's (and by extension all service members') fundamental rights. IGF contributing author Dale Carpenter weighs in over at the Volokh Conspiracy, commenting:

I take some satisfaction in the panel's conclusion that Lawrence supports heightened scrutiny for laws that burden the exercise of private adult sexual autonomy.

But just about every lower federal and state court, and it seems most scholars, until now have refused to read Lawrence that way. Even courts that have struck down laws that are anti-gay, like the Kansas Supreme Court (striking down a law establishing vastly different criminal penalties for sex with a minor depending on whether the minor was of the same or opposite sex), or striking down laws that have infringed on private adult sexual autonomy, like a recent Fifth Circuit panel (striking down a Texas law against sex toys), have avoided reading Lawrence as a fundamental-rights case. Indeed, on the question of whether the sodomy decision recognized a fundamental right, it can be said without too much exaggeration that the controlling opinion in Lawrence is actually Justice Scalia's dissent....

Nevertheless, quite apart from whether DADT is ultimately struck down, and unless the en banc court reverses the panel's determination that some form of intermediate scrutiny applies under Lawrence, this holding by itself is significant.

Law professor Eugene Volokh adds:

there's now a split on the subject between the Ninth and the Eleventh Circuits, and the question extends far beyond "Don't Ask, Don't Tell." (The Eleventh Circuit decision, for instance, upheld Florida's ban on adoption by homosexuals; that case might well come out differently under heightened scrutiny.

There's background on Maj. Witt and her case here.

More. Carpenter also comments on sexual orientation and heightened scrutiny in the California marriage decision, here, finding:

the court's equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion.

In one of the most bizarre arguments against state recognition of same-sex marriages, social conservative Melanie Scarborough reaches for her pen and writes:

permitting individuals of the same sex to describe their relationships as marriage gives them a right not extended to heterosexuals, for whom "marriage" is very narrowly defined. Although a man and a woman may legally wed, the law does not consider the marriage valid unless it is consummated .... But unless the relationship includes the one act defining marital union ... the question is moot; homosexual marriage is physically impossible.

Now, the assertion that marriage is and can only be "consummated" and thus made legal by vaginal intercourse, or else it isn't marriage, is circular in the extreme. Scarborough is also implying that marriage is as marriage always was, which is ridiculous. Women are no longer property, and marriages (legal ones, at any rate) are no longer polygamous.

And while I haven't read the marriage laws in all 50 states, I know that two people are considered married, with all the legal rights and obligations, without producing evidence of a broken hymen - and that particularly among the elderly, where many late-in-life marriages are companionate, it's a good thing that no bloody sheet need be produced.

It seems that many social conservatives are clearly losing it, and not in a good way.

More. And let's not fail to take note of conservative columnist (and sometimes Culture Watch reader and commenter) Maggie Gallagher, who predicts:

Polyamorists, Muslims, and breakaway heretical Mormons can expect to find at a minimum new comfort in this sweeping moral support (if not yet legal support) for the dignity of their own favored family relationships, since the right to marry is the right to have one's family relationship officially recognized and accorded equal dignity.

Oh dear, it's that old slippery slope again. But to paraphrase Jon Rauch, gays are not fighting for a right that no Americans now legally have (to multiple marriages, or "to marry everybody"), just a right that most Americans have ("to marry somebody").

Furthermore. Liberal columnist E.J. Dionne writes in the Washington Post:

As it happens, I am one of the millions of Americans whose minds have changed on this issue. Like many of my fellow citizens, I was sympathetic to granting gay couples the rights of married people but balked at applying the word "marriage" to their unions.

"That word and the idea behind it," I wrote 13 years ago, "carry philosophical and theological meanings that are getting increasingly muddled and could become more so if it were applied even more broadly.

Like a lot of people, I decided I was wrong. What moved me were the conservative arguments for gay marriage put forward by the writers Jonathan Rauch, Andrew Sullivan and New York Times columnist David Brooks.

They see society as having a powerful interest in building respect for long-term commitment and fidelity in sexual relationships and that gay marriage underscores how important commitment is. Prohibiting members of one part of our population from making a public and legal commitment to each other does not strengthen marriage; it weakens it.

Let's hope California can avoid a constitutional amendment overturning this morning's state Supreme Court ruling that laws excluding gay and lesbian couples from the right to marry are un(state)constitutional - which follows on the heels of twice legislatively passed (but twice gubernatorially vetoed) marriage rights bills.

(Gov. Schwarzenegger, who voted the bills, nevertheless says he supports the court's decion and opposes the proposed anti-gay marriage amendment expected to be on the November ballot.)

If the amendment can be defeated and same-sex marriage becomes an everyday reality in the nation's most populous state, then the pressure will certainly mount to challenge the (federal) constitutionality of the Defense of Marriage Act, which bars the U.S. government from recognizing state-sanctioned same-sex unions for purposes of joint tax filings, spousal immigration, Social Security survivors' income, and myriad other benefits that married heterosexuals take for granted.

More. From the New York Times:

Gay marriage is an issue on which the three major presidential candidates - John McCain, Barack Obama and Hillary Rodham Clinton - are pretty much in agreement. All oppose it, while saying at the same time that same-sex couples should generally be entitled to the legal protections afforded married couples. All think the decision should be left to the states.

So they're all pretty much in agreement, but you can bet HRC and the rest of the LGBT beltway gang will be going all out for a McCain defeat (and, if history is a guide, it will be their top electoral priority, dwarfing any efforts to stop state anti-gay marriage amendments).

Changing topics. Beware political hysteria carried forth on a wave of emotional charisma, and be prepared for the unhappy consequences. This picture, for me, invokes visions of Nuremburg.

I wish I could be as overjoyed by the California Supreme Court's ruling for same-sex marriage as the rest of the gay world is. Politically, the ruling merely tees up an initiative battle, to be decided by simple majority vote. Backlash against the Court may make that battle harder to win. Affirmation of the Court's decision by plebescite would be tremendous, but it's too early to celebrate.

As for the ruling itself, my reading of it leads to a reaction I wish I didn't have: the majority opinion here is an example of judicial overreach.

Caveat: That's a flash reaction subject to change as I learn more. But, as I understand the opinion, here's what the court did.

In Massachusetts, the state Supreme Court had a stark choice before it: SSM, or throw gays out the window (TGOW). TGOW was a clear denial of equal protection, not remotely justified by the state's arguments, so the court went with SSM.

California offers a very different situation. Gay couples already have available all the substantive state rights of marriage, under the state's domestic-partner program. The state Supreme Court was merely deciding whether the legislature could withhold the word "marriage" in deference to tradition and public preference.

No, said the court. Gays are a "suspect class" and no differentiation of any kind is tolerable. The Court acknowledges that in California "marriage" has always, until now, meant opposite-sex marriage. Nonetheless, it holds that marriage definitionally includes same-sex couples.

Wait a minute. If the state constitution never even contemplated SSM before, why does it mandate SSM now? Because, says the Court, social mores and state policies (including the state's domestic-partner law) have, in the past 30 years, recognized the fundamental importance of equal rights for gays. The state has implicitly repudiated its tradition of discriminating against gays, and marriage law must reflect this change.

What the Court seems to be saying, then, is that California can have SSM. And California can have TGOW, provided throwing gays out the window reflects a broad consensus against gay equality. The one thing California cannot have is compromise en route to gay equality. Once the state has decided to treat gay people equally, it must go all the way. No half-measures, or even 90-percent measures. No experiments, transitions, interim steps, or concessions to politics. All or nothing, now!

This kind of legal totalism, it seems to me, is tailor-made to rule out any kind of accommodation, even if that accommodation gives gay couples most of what we need with the promise of more to come (soon). As one of the dissents points out (PDF), it also may make legislators reluctant to even start down the road toward civil rights.

I think SSM is a better policy than civil unions (at least one of the dissenters agrees). And I think denial of marriage to gay couples is discriminatory. But to make even a well-intentioned compromise ILLEGAL strikes me as a step too far, and a good example of how culture wars escalate.

Former Congressman Bob Barr (R-Ga.), who is hoping to win the Libertarian Party's presidential nod and cause problems for John McCain, gets a puff profile here from the New York Times. But the thrice-married father of the anti-gay Defense of Marriage Act and congressional opponent of medical marijuana makes for a strange libertarian indeed.

More. Barr also had an terrible record on free trade (voting against it, that is) while in Congress. As David Boaz told the Times, if Barr should head the LP ticket, "I think he's going to have a problem." That seems clear: only unhappy GOP social conservatives - and New York Times liberals hoping for "Barr to block" - will wish him well.

Replying to CultureWatch's criticism of the Victory Fund's decision not to endorse an openly gay Democratic Senate candidate, the Fund's Denis Dison writes:

The Victory Fund's endorsement decisions have absolutely nothing to do with the desires of any political party. We endorse against party picks all the time...

Our endorsement decisions are necessarily private because it is not fair to applicants to publicly air our evaluations of their campaigns, particularly when we decide not to endorse. The decision not to endorse any particular candidate is the result of the same application and evaluation process every candidate goes through, and our endorsement criteria are public.

Read the full text here.

-- by Jonathan Rauch

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More. Reader "avee" comments:

although it didn't come into play in this primary race between two Democratic liberals, the Victory Fund has a firm litmus-test policy of only endorsing candidates who strongly favor abortion rights. That's an easy way to rule out many gay Republican moderates who show less than all-out enthusiasm for abortion on demand without parental consent (and preferably at taxpayer expense).

Maybe they should call themselves the Gay & Lesbian Abortion Rights Victory Fund.

-- by Stephen H. Miller

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Reminder: comments that consists of personal insults will be deleted.

Last week Michigan's state supreme court, upholding lower-court rulings, held that a 2004 constitutional ban on gay marriage means that state employers can't offer health insurance and other partner benefits to gay employees.

You may recall that conservatives insisted that their broadly written amendment was aimed only at same-sex marriage, not at taking away employment benefits. And that, as soon as the amendment passed, they set about taking away employment benefits. "A classic bait and switch."

But to what end? Turns out that Michigan's public universities preemptively circumvented the ruling not by shutting down partner benefits but by extending them even more broadly, to spouses and "other qualified adults"-i.e., financially interdependent cohabitants.

It's one more example of a fact that same-sex marriage opponents will not address, or even acknowledge: The real-world alternative to recognizing gay unions isn't recognizing nothing, it's recognizing everything.

At Positive Liberty, Jon Rowe looks at the religious right's arguing that gays are both (1) successful high earners who lead privledged lives and (2) promiscuous, drug addicted alcoholics. Writes Rowe:

I'm sorry but common sense dictates that a social group cannot at once both be that dysfunctional and so successful that their household incomes are almost 80% above the median. That would take hyper functionality. Gays would have to be arguably the most socially functional social group to be that successful.

Of course, the Nazis accused the Jews of being both the bankers and communists.

An Iranian feminist artist who goes by the alias Sooreh Hera, living in exile in the Netherlands, said she received death threats after attempting to show her series of homoerotic photographs that include models depicted wearing masks of the Prophet Muhammad and his son-in-law Ali, reports Fox News.

Hera said the photo exhibit is meant as a statement regarding Islam's stance on homosexuality.

A couple of thoughts: (1) It's counter-productive to think that provocative homoerotic depictions of Mohammed are going to accomplish anything but inflame the vehemence of conservative Islamic believers, just as homoerotic portrayals of Jesus and "the beloved disciple" only inflame the anger of conservative Christians. (2) However, if taxpayers' money isn't directly involved, artists most certainly have a right to create whatever depictions of religious figures they wish. And others have a right to criticize them for it. (3) It may well be true that in the West artists have an easier time with depictions that conservative Christians consider blasphemous than with the real risk of murder they face if they depict Mohammed in a way that conservative Muslims consider blasphemous. (4) Would Fox News have covered this story in the same way ("Iranian Artist Fights to Have Muhammad Art Displayed in Dutch Museums") if it had involved homoerotic portrayals of Jesus and John?

Note: The blog post on former gay activist David Benkof's defense of Orthodox Judaism's prohibition of homosexuality (among Orthodox Jews) has now moved off the home page. If you'd care to continue the discussion, to which Benkof has enthusiastically engaged, the permalink is here.