Category Archives: Gay Rights

About Those Referenda….

Lots of encouraging things happened Tuesday.

Elections are always dicey propositions. People’s votes are affected by so many imponderables—I’d love to think, as someone who teaches public policy, that voters make their decisions after considering contending positions and evaluating them, but we all know better. Especially when measures affecting the lives of GLBT people are at issue, fear and homophobia and religious fanaticism have historically made a noxious—and effective—brew.

But not this year.

On Tuesday, same-sex marriage referenda were on the ballots in four states. In Washington, Maine and Maryland, voters endorsed marriage equality. In Minnesota, for the first time ever, they defeated an anti-marriage amendment.

Voters also reelected the first President who ever publicly supported the freedom to marry, along with a number of gay and gay-friendly legislators. In Wisconsin, they elected the first “out” United States Senator in American history. In a victory that particularly pleased me, Iowa voters rejected an effort to retire another of the Supreme Court justices who voted with the majority in that state’s freedom to marry case.

Now, let me be clear about one thing: fundamental rights should never be put to a vote of the electorate in the first place.  No one got to vote on whether the government should recognize my marriage, and it is constitutionally improper to give me the power to vote on anyone else’s. But since, as usual, no one listens to me and my “ilk,” those decisions were put to a vote. They had to be dealt with.

Before November 6th, I think it is fair to say that most GLBT activists would have been happy to see a win of just one of these four ballot measures. The advance of marriage rights has thus far depended primarily upon the courts and occasionally legislatures—before now, every time the issue has been put to a popular vote, the gay community has lost. Winning one of these measures would have been hailed as real progress, a break in the drumbeat of constant popular defeat. Two would have been real cause for celebration. I think it is accurate to say that no one expected to win all four.

So there was a lot to cheer about in this year’s election. Bigotry lost across the board, not just anti-gay bigotry. Despite a distressing amount of racism directed toward the President, he won handily. Latinos flexed their electoral muscles. Women refused to be sent barefoot and pregnant back to the kitchen.

As elated as many of us are, however, it is well to remember that elections are just signals of change, not change agents. A lot of people who thought that Obama’s 2008 election would usher in a new era were disappointed because they failed to understand the way the system (not to mention reality) works. We don’t elect monarchs in the United States. Checks and balances mean that no matter what the intentions of the people we put in office, in order to implement the policies they champion, they must work through systems that were intended to force negotiation and compromise—systems that aren’t working very well right now. Voting was just the beginning. Changing the world takes time—and more effort than most of us realize.

But right now, we’re entitled to take some time to savor the results of this election. We’re entitled to entertain the possibility—indeed, the probability—that America has turned an important corner, and that genuine equality for gays and lesbians is closer than it has ever been.

Right now, it’s time for high fives.

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Little by Little….

A federal appeals court recently became the second such court to declare DOMA–the federal “Defense of Marriage Act”–unconstitutional. The challenge was brought by an 83-year-old resident of New York State, where same-sex marriage is legal. When her partner–pardon me, her wife–died, DOMA allowed the IRS to assess an estate tax nearly 400,000 higher than she would have owed had her spouse been a man.

The court ruled that DOMA violates equal protection, by treating couples (all of whom are legally married in New York) differently, based solely upon whether the marriage partners are of the same or opposite sex. But the ruling did something even more important: it analyzed the case under what is called “heightened scrutiny.” If this part of the ruling holds up, it will make cases alleging discrimination based upon sexual orientation much easier to win.

Doug Masson has posted an excellent summary of the case. As he reports

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” “Substantially related” means that the explanation must be “exceedingly persuasive.”. The justification must be genuine, not hypothetical and not invented after the fact in response to litigation.

The Court rejected BLAG’s argument that Congress had an important interest in passing DOMA to maintain uniformity on the issue of marriage-related benefits in protection of the treasury. The court observed that Congress has historically allowed states to go their own way on marriage. (For example, rules about age, divorce, consanguinity, and paternity.) Indeed, the sudden federal intrusion into marriage is, itself, suspicious. (All the states-rights advocates have been clamoring for repeal of DOMA, yes?)

Another justification was preserving the historical understanding of marriage. But, the court observed, ancient lineage doesn’t protect a law where it lacks a rational basis. Miscegenation and anti-sodomy laws had pretty long historical roots of their own.

Another justification was encouraging responsible procreation. The court recognized that this could be an important government interest but did not see that DOMA advanced that interest.

DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

The Court also dismissed as “far-fetched” the idea that the laws passed by Congress might actually make people gay or effect their sexual orientation. It was also not persuaded by the idea that merely getting to use the extra-special word “marriage” would, on its own, promote stable opposite-sex marriages.

Because the court concluded that same sex married couples constituted a “quasi-suspect” class and because DOMA was not “substantially related” to an important government interest, the Second Circuit concluded, it must be regarded as being in violation of the Equal Protection Clause of the 14th Amendment.

The ruling was satisfying. What was not satisfying–indeed, what was very disappointing–was the role of Indiana’s Attorney General, Greg Zoeller, who led the group of states arguing for DOMA and its constitutionality. I have generally been impressed with Zoeller; unlike the hot dogs and culture warriors and know-nothings we seem to elect, he has come across as thoughtful and modest, and willing to abide by precedent. (I realize that complimenting a lawyer on willingness to abide by the law is a bit odd, but these days, the bar is set really low.) His willingness to fight for a discriminatory law in a case that did not directly involve Indiana–a case where he was a volunteer–was disappointing.

The bottom line, however, is that despite the efforts of Zoeller and those who agree with him, equality for GLBT folks is coming.

Little by little, the barricades are coming down.

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Speaking of Love…

A friend of mine takes some sort of twisted delight in sending me the Indiana Family Institute’s newsletters. I think he just enjoys my incredulous reactions.

The latest one was filled with “the usual suspects.” Planned Parenthood is prowling the state killing babies, the poor economy is another consequence of our departure from morality–or something. And of course, allowing same-sex couples to marry is no different from incest or pedophilia.

Really?

Are people really unable to distinguish between a relationship that rests on the mutual love and desire of willing, consenting adults and those in which a person in a position of power abuses that power to exploit someone younger and/or weaker?

I’m not a fan of government intrusion into private, consensual relationships. If you and your significant other get your kicks hanging from the chandeliers or making love in wet suits, it really isn’t the business of the state to intervene. If, on the other hand, realizing your fantasies requires the “participation” of children under the age of consent, government has the duty and obligation to prevent that. The difference isn’t that hard to see.

Those who insist that same-sex marriage is a slippery slope to a hellish society in which marriage itself has lost all value have been making that argument at every social turn. Divorce would destroy the family. Women working outside the home and birth control would thwart God’s plan.

These attitudes are part of a fantasy world–a remembrance of imagined times past when children weren’t born out of wedlock, grandma and grandpa’s marriage lasted sixty glorious years, and grandpa went to work every day to support a passel of kids (none of whom, of course, were gay). As social scientists remind us, that wasn’t the way it ever was. At the turn of the last century (1900), thanks to death and (common) desertions, the average marriage lasted 12 years. Fully a third of women were pregnant at the time of their very early marriage. Men had no legal obligation to support their children until the 1920s, and plenty didn’t.

Every social change makes people uncomfortable. Those who simply can’t deal with the discomfort–those who feel diminished by changes in the culture and by efforts to the include others at the table–are sad reminders of how fragile the human ego can be, and a cautionary tale about how and why people hate.

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Getting It Backward

In a recent article about the experiences of gay Supreme Court clerks, I came across the following paragraphs:

Justice Antonin Scalia, joined by Rehnquist and Justice Clarence Thomas, has authored some of the most caustic dissents against gay legal rights. In his dissent in Lawrence v Texas, Scalia said the majority had “signed on to the so-called homosexual agenda … directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Asked last month in an interview about his dissents in past gay-rights cases, voiced from the bench as well as in his written opinions, Scalia said he was merely reading the Constitution, which he says does not cover a right to same-sex relations: “Where does it come from?” he said. “This is a trendy view of the current society elite. It’s not right to impose it on everybody else. It’s a democratic question. If you want to permit homosexual sodomy, then pass a law.”

This betrays a profound misreading of the Constitution and our most basic approach to the role of government–a misreading that Scalia himself would scorn in a different context.

One of the very few things the Tea Party folks get right is their insistence that rights precede government. Their formulation is that rights are “god-given”–I won’t go that far, but I agree with the Founders that humans have rights simply by virtue of being human, that we are born with “inalienable” rights. The Bill of Rights is a list of actions that government is forbidden to take—actions that would violate those antecedent rights.

The language in the Ninth and Tenth Amendments–amendments that Scalia the “textualist” rarely mentions–is pretty explicit on the point, providing that failure to “enumerate” a right in the preceding Amendments is not to be taken as evidence that the right was not protected. That language was included in order to calm the fears of folks like Alexander Hamilton, who argued that the government of delegated powers that the Founders had created had been given no power to infringe fundamental liberties, and worried that a written Bill of Rights would inevitably omit some important ones.

The Constitution doesn’t explicitly protect a right to have children, or a right to travel, or any number of other rights the Court has had no difficulty recognizing as protected. We would rightly consider it absurd if a Justice of the Supreme Court said something like “If you want to allow people to have children, pass a law.” A majority of the Court–unlike Scalia–understands that we don’t comb through the Constitution to find out whether government, in its infinite wisdom, has conferred a particular right on We the People.We look to the Constitution to see whether government has been given the right to interfere with a particular liberty.

And I don’t find anywhere in the Constitutional history or text where government is given the power to decide who has human rights.

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Do You See What I See?

A couple of days ago, an email from the Human Rights Campaign began with the following paragraph:

“Just yesterday, one of Mitt Romney’s highest profile supporters, and a member of the GOP platform committee, said same-sex marriage is something the government should condemn – along with drug use and polygamy.”

The rest of the message teemed with righteous indignation, and ended with a predictable plea for money.

Now, I fully understand how demeaning that statement feels. But I also understand where it comes from. A few years ago, during my sabbatical, I did research that later became my book God and Country. I was curious about the ways in which religious cultures and beliefs shaped people’s positions on various policies–not just hot-button social issues, but also policies we think of as wholly secular, like welfare, the environment, criminal justice.

The research was fascinating–and enlightening. It turns out that our religious socialization affects the way in which we categorize issues. So–when it comes to sexual orientation, for example–research suggests that Christians and Jews tend to classify the issue differently. Jews are more likely to classify sexual orientation as one aspect of identity, like eye color or intellectual capacity; for most Christians, on the other hand, sex is classified as a behavior–like drug use or polygamy. This initial classification doesn’t necessarily prevent Christians from drawing moral distinctions between different behaviors, and many Christians do not consider homosexuality to be immoral. But the evaluation process proceeds from different starting points.

Cultural assumptions can be changed over time, of course, and changing the way people classify sexual orientation initially is one of the great triumphs of the gay civil rights movement.

We can see it in the language: the term “sexual preference” is rarely used these days (except by the likes of a Micah Clark or Sarah Palin); it has been replaced by “sexual orientation.” The first term suggests a behavioral choice; the second, an immutable characteristic. It is an incredibly important distinction; immutable characteristics–like gender or eye color or skin color–are by definition morally neutral.

You can choose to use drugs, you can choose to be a polygamist. But science has exploded the myth that people choose to be gay, and most Americans–whatever their religious socialization–have come to understand and accept the fact that sexual orientation is not chosen.

It’s not a fluke that the people who compare homosexuality to drug use are also anti-science.

There are many ways to slice and dice the American electorate, but I am increasingly convinced that the fundamental (no pun intended) fault line is between those who accept science and modernity and can live with the resulting ambiguities, and those who don’t and can’t–those who find change threatening and ambiguity terrifying, and who cling more and more tightly to the comforting categories and certainties of the (re-imagined) past.

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