Gay Rights – Page 35 – Sheila Kennedy

Boys Will Be Homophobic Boys

This session of the Indiana General Assembly considered–and defeated–an anti-bullying bill offered by State Senator Tom Wyss. The bill was similar to measures being considered in other states, and all of them have been offered in response to several high-profile cases where teenagers have committed suicide after relentless bullying by their classmates or peers.

You’d think such a bill would pass easily. Who, after all, is in favor of bullying? But in Indiana, the proposal was opposed by the Christian Right because–wait for it–it might protect gay youngsters. Obviously, a bill to prevent young men or women from picking on other youngsters perceived to be gay would violate the rights of those who don’t like gays.

If you think I am making this up, permit me to reproduce a paragraph from a recent issue of the Indiana Family Association’s weekly email.

“AFA of Indiana opposes the act of bullying of all students, regardless of the motives of the bully or the perceived status of the victim. However, many bullying bills and programs have become a Trojan Horse for the homosexual demands groups. There is a danger here in unfairly casting students with traditional values as bullies, silencing legitimate views, or creating specially protected classes of children as opposed to focusing on actual acts of bullying. There is an outstanding web site on this issue that parents, teachers and policy makers should investigate. True Tolerance has information about the problem of bullying as well as the concerns surrounding many of the school programs and the ulterior objectives of some homosexual activists pushing this agenda.”

In other words, AFA is against bullying. However, when the target of that behavior is gay, they are concerned about the “real motives” involved. Protecting gay children from abuse is just part of the “homosexual agenda,” intended to stigmatize those who express their disapproval of homosexuality with enthusiasm.

Reminds me of a case that the Indiana ACLU handled when I was Executive Director. A twelve-year-old in a southern Indiana middle school was being routinely beaten up on the playground, and despite frequent complaints from the parents, the school administration’s response was “boys will be boys.” The principal actually told the ACLU lawyer handling the case that the victim of the abuse brought it on himself, by “acting different.”

Bullying gay kids is just the expression of the bullies’ 1st Amendment rights. And the AFA is so solicitious of our constitutional liberties.

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An Idea Whose Time Has Gone

The Indiana General Assembly is once again debating whether to amend the state constitution to ban same-sex marriage. That debate has been criticized as a distraction from the State’s pressing fiscal problems, and it is. But the proposal, HR6, is also bad public policy—whether or not one approves of same-sex marriage.

In my law and policy class, I employ a standard framework for analyzing proposed laws. The threshold question—required by the Constitution’s limitation on the powers of government—is whether the subject-matter falls within the proper scope and authority of the state. If it does, we investigate further, testing whether there is broad consensus on the existence and nature of the problem to be solved, whether the proposed law will solve the problem, and whether there are likely to be unintended negative consequences if the measure becomes law.

Applying that framework to HR6 is illuminating.

The regulation of marriage, in our system, is a state responsibility, so HR6 arguably meets that threshold. It’s all downhill from there.

Broad social agreement about the need for a law is an element of legitimacy. (That’s why people debating new policies point to polls showing support for their position.) In this case, whatever consensus there may once have been against same-sex marriage is demonstrably past-tense.

Same-sex marriages are legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C. New York, Rhode Island and Maryland recognize same-sex marriages conducted elsewhere. Several other states recognize civil unions. Religious doctrine is equally fragmented and increasing numbers of churches and synagogues bless same-sex unions. Surveys of public opinion show a public that is almost equally divided on the subject.

Will passage of HR6 solve the problem? No.

Even if one believes that same-sex marriages are a “problem,” enacting HR6 will change nothing. Indiana law currently prohibits recognition of such marriages and that prohibition has been upheld by our courts. The only way we’ll get same-sex marriage in Indiana is if the U.S. Supreme Court rules that the Equal Protection doctrine requires it—and if that happens, a state constitutional ban would be unenforceable.

And what about those unintended consequences?

Several of Indiana’s largest employers have warned that enactment of HR6 will hobble them as they compete for the best employees. Economic development professionals warn that passage will make it more difficult to attract new businesses to the state.

Public employers—universities and municipalities with policies or ordinances granting health insurance and other benefits to employees—fear that HR6 will invalidate those benefits. (At IU, that would make us considerably less competitive for faculty, whether straight or gay.)

Corporate lawyers warn that the language of HR6 could be read to prohibit even private companies from providing benefits to unmarried partners. (HR6 by its terms applies to all unmarried couples, not just gay couples.) Proponents deny that possibility, but ultimately, it is an issue that will be litigated, and lawsuits are time-consuming and expensive.

Of course, there are also the uncertain consequences of creating a precedent by writing discrimination into the Constitution. If we can marginalize one disfavored group, why not others? Immigrants? Muslims? Atheists?

At the end of the day, this is an argument between two very different versions of morality and beliefs about the role of government.

A dwindling number of Americans believe that homosexuality is a chosen, immoral behavior, and despite growing scientific consensus that sexual orientation is immutable—that people are born homosexual or heterosexual—they want to use the power of government to stigmatize gay people.

Others of us believe that denying people equal treatment under the law because of who they are—whether that second-class status is based upon race, gender or sexual orientation—is not only unconstitutional, but deeply immoral.

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Spring is Coming

This has been an awful winter—the kind that makes you think that spring will never get here.

It has also been an awful political winter; as I have groused on these pages for months, we are in an extended season of crazy—a prolonged hissy-fit of finger-pointing, propaganda and outright bigotry. Sane citizens can be forgiven for wondering whether a political spring will ever come.

Interestingly, in much the same way as early green shoots are a signal that daffodils and tulips are on their way, there have been a number of polls and other indicators promising an end to our political winter.

So while Republican Presidential hopefuls keep playing to their base, it helps to recognize that that base is aging and shrinking, and that appeals resting on tired “us versus them” formulas have an expiring shelf life. Like the snow, they’re beginning to melt.

As I noted in a recent blog post, Mike Huckabee (the “nice” Republican!!), recently attacked the President by saying something to the effect that Obama couldn’t be a “real” American, because he wasn’t a small-town Boy Scout with a father who belonged to Rotary. Hate to break it to you, Mike, but these days, very few people would pass that sort of “Americanism” test.

For his part, Newt Gingrich, who is also courting the GOP base, has suddenly become a vocal defender of traditional marriage. Newt wants to impeach President Obama for his decision not to defend the constitutionality of DOMA in court.

I hate to tell Newt this, but in the 21st Century, traditions are changing.

A new survey from Pew has confirmed what any objective observer can see: a continuing and rapid rise in support for same-sex marriage since 2009. Currently, 45% say they favor allowing gays and lesbians to marry legally, while 46% are opposed. In Pew surveys conducted in 2010, 42% favored and 48% opposed gay marriage and in 2009, just 37% backed same-sex marriage while 54% were opposed.

And despite the current war on women being waged in Congress, Pew found that opinions about abortion have also liberalized. In 2009, for the first time in many years, the public was evenly divided over whether abortion should be legal or illegal in all or most cases. But support for legal abortion has recovered and now stands at 54%. Historically, people who support a woman’s right to choose have been far more likely to support gay rights.

Independents have become more supportive of both gay marriage and legal abortion since 2009. Roughly half of independents (51%) now favor same-sex marriage, up from 37% in 2009. And 58% of independents say that abortion should be legal in all or most cases, compared with 47% in Pew Research Center surveys two years ago.

When you look at the age breakdowns in these and other polls, you’re left with an inescapable conclusion: if we can just hang in there until the old farts in my age cohort die off, spring really will come. And the old farts know it.

That’s why we’ve seen frantic efforts in several states without constitutional amendments banning same-sex marriage—including Indiana—to insert such bans now. Homophobic legislators know the culture is changing, and fast, and they want to pass these measures before their failure is inevitable.

Before spring comes.

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The Kids Are All Right

Republican Presidential hopefuls keep playing to their (aging and shrinking) base.

Mike Huckabee recently said something to the effect that President Obama isn’t “really” American, because he wasn’t a Boy Scout with a father in Rotary. For his part, Newt Gingrich, that intrepid defender of traditional marriage, wants to impeach President Obama for his decision not to defend the constitutionality of DOMA in court. (Lest you question Gingrich’s commitment to “traditional” marriage, I would point out that he’s had three such marriages himself, and in each one, he dutifully behaved the way men “traditionally” behaved–at least in 19th Century France–by cheating on his wives.)

I hate to tell Newt this, but in the 21st Century, traditions are changing.

When you look at the age breakdowns in these and other polls, you’re left with an inescapable conclusion: if we can just hang in there until the old farts in my age cohort die off, the kids will be all right.

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Kicking the Dog–Extended Version

Watching the Indiana legislature reminds me more than anything of those days—and we’ve all had them—when nothing has gone right at the office, we’ve made fools of ourselves in a meeting, and we’re just in a foul mood. So we go home and yell at our spouse, snap at our children and kick the dog.

Our lawmakers are faced with massive problems, not all of which they created themselves. We have horrendous budgetary and fiscal problems, fights over education policy are reaching the boiling point, the Chief Justice and the Governor have stressed the need to rethink incarceration policies, and notwithstanding the constant hype from state officials, Indiana’s job creation has been anemic (to put it mildly).

So our legislators are kicking the dog—in this case, gays and immigrants.

Not that Indiana’s legislature has ever distinguished itself in the “serious and responsible” category. (When the late Harrison Ullmann edited NUVO, he regularly referred to the General Assembly as The World’s Worst Legislature.) But this focus on gays and immigrants (more accurately, brown immigrants) is not only wrongheaded, it’s counterproductive. As the CEO of Cummins, Inc. wrote in this morning’s Indianapolis Star, Cummins has been a bright spot for employment in Indiana, creating jobs at a time when many employers have been cutting back. But much of their growth has depended upon international trade, and immigrant-bashing will hinder further job creation.

“We plan to add even more people given our ambitious plans for growth. These new jobs could be located in many places in the world; for us to add them in Indiana we must have an environment that is welcoming to all people and where diversity is valued and allowed to flourish.”

Cummins was one of the large Indiana employers who testified the last time the legislature tried to amend the Indiana constitution to prohibit same-sex marriage. All of them made the same point: legislation bashing “the other” not only accomplishes nothing (immigration policy is a federal responsibility, and there is no same-sex marriage in Indiana), it inhibits job creation and economic development.

As I have previously noted, Indiana’s economic development policy has focused on recruiting and growing high-tech and biotech employers. Those tend to be companies that are gay-friendly, companies that also employ significant numbers of gays. Passing an anti-gay constitutional amendment sends, shall we say, a somewhat “mixed” message.

Leaders of Indiana’s religious and business communities have spoken out against these efforts to marginalize and disenfranchise. Editorial writers and lawyers have cautioned against the unanticipated consequences of the bills currently pending in the Indiana General Assembly. Administrators at institutions of higher education, including my own, have warned that these bills will make it difficult for our international students, and may jeopardize hard-won domestic partner benefits for gay and lesbian employees.

All of these groups have warned that the risks of passing these measures are real, while the “benefits” are non-existent. The immigration bill violates federal law, and if passed, will be struck down, and as many of us have pointed out, the only way Indiana will ever get same-sex marriage is if the United States Supreme Court rules that the U.S. Constitution requires it—and if that happens, a state constitutional provision won’t be enforceable anyway.

I hope some of our legislators are listening, but I doubt it. Kicking the dog doesn’t solve any of our problems, but it’s easier than dealing with fiscal and policy realities. And it evidently makes them feel better.

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