‘Raw Sex’ and Rev. Evans

Some opponents of gay marriage are really just obsessed with gay sex, as a recent fracas in the District of Columbia shows. [read article]

Crying Fowl about Marriage

Opponents say calling gay couples married is like calling a duck a chicken. But the definition of marriage is man-made and can change. [read article]

Case Closed

Forced to present actual arguments against gay marriage, the defendants in the Prop 8 lawsuit came up with…nothing. [read article]

It’s Not Abortion, Stupid

A Supreme Court decision legalizing gay marriage would not be as polarizing as the Roe v. Wade decision. [read article]

Aid laced with poison

Because aid dollars continue to flow unabated, U.S. taxpayers are subsidizing the persecution of homosexuals in Uganda. [read article]

Violent Distortions

For anti-gay obsessives, equating homosexuality with sexual violence is not just a misunderstanding — it’s a strategy. [read article]

The Pleasures of Aging

As gay culture matures, it needs to appreciate the many ways in which getting older makes us better. [read article]

The Year of Going Mainstream

Despite some discouraging setbacks, after 2009 gay marriage will never again be seen as a fringe or radical cause. [read article]

Comfort and Joy!

Despite setbacks, the holiday season in 2009 gives gay Americans many reasons to be grateful—and, well, gay. [read article]

Marriage Isn’t for Everyone

Not all men marry. As students of what used to be called ‘bachelorhood’ tell us, single life can be rewarding, too. [read article]

Our Families, Our Rights

Gay liberation began by claiming individual rights, but nowadays it’s even more about reconnecting with family. [read article]

The Political Is Personal

Though defeated in New York, gay marriage has a key long-term advantage: gay couples will never give up their fight for it. [read article]

What Bigotry Is

Calling someone a bigot is not the same as pointing out bigotry—a distinction we should take care to keep in mind. [read article]

A Gay Brigade

Creating an all-gay military unit to fight in Afghanistan would demolish forever the stereotype that queers and combat don’t mix. [read article]

Adam Lambert’s Hypocrisy

The new-minted pop icon refuses to be ‘labeled’ as gay, even as he shamelessly exploits his sexuality for notoriety. [read article]

It Could Have Been Worse

2009 has been a disappointing year for gays, and President Obama didn’t help much. But we did better than we would have under McCain/Palin. [read article]

Doing Gay/Being Gay (Part II)

by David Link

Posted on February 7, 2010

I come not to praise the distinction between status and conduct, but to bury it.

Differentiating between conduct – doing homosexual things – and status – being homosexual – has been with us for most of the modern gay rights debate.  That’s in part because of a fundamental tenet of the law that says you can’t convict someone of a crime based on their status, only their bad conduct.  The government can’t criminalize alcoholism, but it can convict an alcoholic of doing otherwise criminal things.

Sodomy has historically been the bad thing that homosexuals did.  Theoretically, heterosexuals could also engage in the same form of bad behavior, but because sodomy has so conventionally been used against homosexuals, that has tended to be the focus of the public discussion.

In 1986, Bowers v. Hardwick seemed to erase that distinction.  The majority’s almost obsessive focus on the phrase “homosexual sodomy” when analyzing a law that applied to sodomy without reference to the genders of the participants, appeared to give permission to discriminate against homosexuals.  If not, why spend so much time talking about homosexual sodomy when the statute didn’t?

That is exactly how Ninth Circuit Judge Stephen Reinhardt read Bowers.  In one of the pre-DADT cases of military discharge for homosexuality, Judge Reinhardt would have ruled against Sgt. Perry Watkins.  The majority opinion (later overturned) had distinguished the spanking-new Bowers because that was a case about homosexual conduct, and Watkins’ case was about sexual orientation as a status.  They found homosexuals to be a suspect class for equal protection purposes, and ruled that the military could not constitutionally ban all homosexuals simply because of their status as homosexuals.

Judge Reinhardt found the distinction an unconvincing reading of Bowers:

I do not believe we can escape the conclusion that "homosexuals", however defined, cannot qualify as a suspect class.  Even if we define the class as those who have a "homosexual orientation", its members will consist principally of active, practicing homosexuals. That the class may also include a small number of persons who are or wish to be celibate is irrelevant for purposes of determining whether the group as a whole constitutes a suspect class. I simply see no way to say that homosexuals defined broadly (by status) are a suspect class, but that the same group, if more narrowly defined (by conduct) is not. Whether the group is defined by status or by conduct, its composition is essentially the same. In short, "homosexuals" are either a suspect class or they aren't.

He concluded that the fairest reading of Bowers allowed open discrimination against homosexuals, period, and that as a judge on a court inferior to the Supreme Court, he could not depart from their ruling – or what he believed to be their bias.

I had the privilege of working in Judge Reinhardt’s chambers the year after Watkins.  It had caused quite a stir in his office, and I had the opportunity to discuss my own views (supporting the majority) with him.  He was unshakable, and I came to believe he was right.  The overreach in the Bowers majority is nothing but the conventional understanding that, whatever the specifics, homosexuals should not have sex with one another.  The fact that they do have sex gives rise to all the peripheral prejudice against them.  If (as Bowers ruled) the law can prohibit homosexual sex, its inferential and attendant prejudices against the group must also be permissible.

Judge Reinhardt did not personally believe it was appropriate (or constitutional) to treat homosexual sex differently than heterosexual sex:

[T]he fact that homosexuals (or persons of "homosexual orientation") engage in or seek to engage in homosexual conduct is as unremarkable as the fact that "heterosexuals" (or persons of "heterosexual orientation") engage in or seek to engage in heterosexual conduct. To pretend that homosexuality or heterosexuality is unrelated to sexual conduct borders on the absurd.

That brings me back to Sprigg/Fischer/Bahati.  They want to love the sinner but hate the sin.  While that’s as suspect in theology as it is in law, they are free to condescend to us as a religious belief.  But here in the secular world, Bowers is no longer the law, and the civil world has to take us as we are, conduct and orientation together.

It remains fashionable to dismiss Judge Reinhardt as a knee-jerk liberal (and, to be fair, he has a long track record to that effect).  But Watkins stands as one crystal clear example where he knew what result he wanted, and found the fairest reading of the law did not permit that result.

Lawrence is now controlling, and Justice Scalia articulated a thought similar to that of Judge Reinhardt in his Watkins dissent.  Overturning Bowers is a pivotal step for the equal protection challenge that the Watkins majority prematurely forged.  Why do our lives have to be dissected into discrete legal arenas and sectors?  We’re whole human beings, sex and love included.  Lawrence helped put our lives back together again.

Lawrence applies to criminal laws, and marriage is quite different.  But Justice Scalia thought that overturning Bowers would inevitably lead to a fuller equality that would have to include marriage.  I agree. We will see if Justice Scalia hews to the same kind of principled respect for his court’s authority that Judge Reinhardt exhibited when he was put to the test.

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The Revolution in 3 minutes and 7 seconds

by David Link

Posted on February 7, 2010

Even those of us who believe the Constitution protects us know that a ruling in our favor will only be as secure as at least 2/3 of the states will let it be.  That's why we have to keep up our efforts to change the political culture.

This is how we are doing it:  A brief conversation in South L.A., where an African-American woman, who obviously does not feel comfortable even talking about the subject is kindly but firmly helped to actually think about the issue directly.

I don't know who Jay, the lesbian canvasser is, but hers is the face of the last mile in this revolution.  Thanks to all the Jays out there.

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Doing Gay/Being Gay (Part I)

by David Link

Posted on February 6, 2010

We are indebted to Peter Sprigg of the Family Research Council and Bryan Fischer of the American Family Association – not to mention David Bahati, sponsor of Uganda’s Anti-gay bill – for returning us to a debate that should have been put out of its misery in 2003: Should homosexual conduct be against the law?

Lawrence v. Texas answered the question for constitutional purposes.  The government has no legitimate business making particular sexual acts a criminal offense if they are voluntary, adult and in private.

But the constitution isn’t everything.  For centuries, criminal prohibitions provided the foundation for official (i.e. legal and governmental) discrimination against homosexuals.  The premises about homosexuality in those laws are what most older people, in particular, take for granted.  We may no longer be criminals under the law, but in some people’s minds we are certainly doing something that is wrong.

The unambiguous desire of Sprigg/Fischer/Bahati to reestablish a legal regime where homosexual conduct is criminal lets us look at the issue from today’s entirely new perspective: Why is some sexual conduct between consenting adults in private wrong.  By “wrong” I do not mean “a sin,” since I am talking about the law here, not theology.  Religious adherents are free to believe, among themselves, what their religion teaches about sin, whether it’s murder or adultery or dancing.  There is much overlap between criminal laws and theological transgressions, but the two realms are not identical.  Criminal laws in a pluralistic society of varied religious beliefs have to have justifications beyond sinfulness, since there is inconsistency between, and even within religions, and since many people belong to no formalized religion at all, a choice the constitution requires all of us to respect.

Sprigg distinguishes between homosexual conduct and homosexual orientation.  Homosexual conduct is bad, but mere orientation is no problem.  Ironically, this is a distinction gay rights supporters have drawn as well, when it has been advantageous.  But it doesn’t answer any questions.

Justice Scalia illustrates the problem in his dissent in Lawrence: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.”

Look how casually the thinking here moves from the notion of homosexual conduct as sex to homosexual conduct as – well, as being gay.  It’s safe to assume, I’d think, that few, if any of those business partners, scoutmasters, teachers or room-renters would be observing any sexual activity by these particular homosexuals (though the last category comes very close, which is why it is given universal exemption in housing discrimination laws).  In the quote, it’s not even necessary that any of those people have a partner at all.  The homosexual conduct Justice Scalia is concerned about people so “openly” engaging in is living their lives without hiding their sexual orientation.  Simply being gay, the way heterosexuals are straight, is to “openly engage in homosexual conduct.”

The closest to “openly” engaging in conduct that could be considered sexual is when homosexuals kiss or hold hands while walking down the street.  That’s openly being gay, but it’s not different (in the view of the people Scalia is worried about) from sodomizing your partner right there at the corner of Pico and Sepulveda.

There is no such concern about heterosexual kissing or hand-holding.  More to the point, no sodomy law ever prohibited such acts.  So why the difference for gays?

That difference is everything.  In general, most people don’t spend a lot of time imagining the sex lives of others; or when they do, it’s considered impolite if not outright rude.  Yet speculation like this is taken for granted when homosexuals are the subject.

It is that permissive speculation about sexual conduct that brings the bedroom right out into the open, and makes gays ripe for this kind of condemnation.  It reaches its zenith of absurdity in DADT.  DADT strays so far from a requirement of actual conduct that simply speaking about being gay is sufficient to have a servicemember ejected.  The theory is that this shows a “propensity” to engage in homosexual conduct, and therefore a mere statement gives the military sufficient evidence of someone's unfitness.

Yet heterosexuals have a propensity to engage in heterosexual conduct – and “propensity” may be understating it for many of them.  Some of their conduct will be the same kind of sodomy as homosexuals might engage in – specifically oral or anal sex.  Yet for heterosexuals, we don't (as the kids say) go there.

The debate about sexual conduct is not about sexual conduct at all, but about being openly gay.  It is that honesty which is objectionable.  Even Peter Sprigg acknowledges that some people have a homosexual orientation.  The criminal law has as little effect on that as it could have on preventing the tide from coming in.  All it can do is prevent people from being honest – or, in Justice Scalia’s words, of “openly” engaging in what he calls “conduct.”  But as we see in the debate over DADT, when honesty is a problem the law is trying to solve, there is something deeply wrong with our priorities.

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Credit Where Credit Is Due

by David Link

Posted on February 4, 2010

There’s been a lot of gloom and doom around here lately, and this morning seems like a good opportunity to look on the bright side of life.

• Both President Obama and Secretary of State Clinton spoke out against the Uganda anti-gay bill – at the National Prayer Breakfast!  Obama used the word “odious” to describe it.
• Senator Orrin Hatch is open to repealing DADT.
• Colin Powell is not just open to the repeal, he now “fully supports” it.
• Gayle Haggard (wife of Ted) believes the government “should provide equality under the law” for same-sex couples, and to that end supports civil unions.

None of these is without qualifiers and wiggle-room.  But every one of them goes against some pretty widely held notions about the public figure involved.  It behooves us to acknowledge what each of them has said.  That simple courtesy is an important aspect of progress.

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Throw the Gays in Jail!

by Jonathan Rauch

Posted on February 2, 2010

OK. It doesn't come much clearer than this. Family Research Council's Peter Sprigg says homosexuals should be menaced with arrest and imprisonment. Transcript and video here. We must not let the public forget that this ugly reality—they want to make us criminals—is what lies behind these guys' insistence that they mean us no harm.

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35 Years of Failed Strategy

by Stephen H. Miller

Posted on February 1, 2010

When I saw this headline in the DC Agenda (successor newspaper to the Washington Blade), Filibuster threat makes ENDA unlikely in 2010, I wondered if it could possibly be saying that LGBT activists couldn't find a single Republican to support the measure. But no, it means that even assuming a few mostly northeastern GOP senators were on board, enough Democrats would vote no to defeat the non-discrimination act. In other words, even if the Democrats had kept their Senate supermajority, it wouldn't have been enough.

"The Human Rights Campaign, National Gay & Lesbian Task Force, and National Center for Transgender Equality — three leading groups working on ENDA — say they are confident the House of Representatives will pass ENDA in the summer or early fall. ... But in the Senate, LGBT civil rights lobbyists have been reluctant to reveal the findings of their highly confidential head counts, including leanings of the 17 Senate Democrats that have not signed on as co-sponsors. Among them are Sens. Jim Webb and Mark Warner, both of Virginia."

A gay non-discrimination act was first introduced in 1974 when Bella Abzug and Ed Koch were in Congress, and it still can't pass when Democrats have overwhelming majorities in both Houses? Majorities that are certain to shrink come November. I'd say yet again it's past time to revisit the pledges of free gay votes (and dollars) to Democrats just because they're Democrats (both Webb and Warner received support from local and national LGBT lobbies — the HRC web site still brags how it "mobilized its members to vote for U.S. Senate candidate Jim Webb"). But my beating that drum wouldn't do much good, would it.

Then again, without the vague "gender identity" add-on that could require employers to add unisex bathrooms, the odds for passage would be much greater. That's another self-inflected political wound that activists are intent on gouging deeper and deeper.

More on Jim Webb. MetroWeekly reports, "Webb...had in the past been an opponent of equal treatment for women in the military. When asked about the 'Don't Ask, Don't Tell' policy in an interview during his 2006 campaign for the U.S. Senate, Webb said, 'That's a policy that's working,' and left it at that."

So why the campaign support from the Human Rights Campaign? As long as you've got that "D" after your name, it's "don't ask, don't tell" about gay equality over at the Democratic Party's favorite free-money machine.

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