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When Conservatives Implode: The McDonnell-Cuccinelli Death Cage Match

March 11th, 2010 No comments

Yesterday, I wrote about the events leading up to Virginia Governor Bob McDonnell’s capitulation on anti-gay discrimination. Here’s a one-sentence recap: First, McDonnell rescinds the Executive Order that protected gays and lesbians from job discrimination in state government; then, emboldened by this action, state attorney general Ken Cuccinelli thunders to the state’s universities that their similar anti-discrimination policies aren’t consistent with state law and “requests” that they be repealed; next, universities, perhaps sick of the fact that the state only notices them these days when they want to cut their already-paltry funding or when they feel like bossing them around, take umbrage; then, yesterday, more than 1,000 people — mostly VCU students — march against the homophobia in the state’s capital (Richmond).

So McDonnell’s people then draft a good document, called an Executive Directive, which creates no new rights but recognizes state and federal policy against anti-gay discrimination. Of course, there is no such statutory policy (either in Virginia or at the federal level), so the Directive speaks of the federal and state constitutional guarantees of equality. 1 More than that, the Directive contains rhetoric that I was both surprised and heartened to see from McDonnell, who is a quick enough study to have understood the political cost of shedding the sheep’s clothing of moderation that got him elected.

But the initial Executive Order showed that, in his heart, McDonnell is the same guy whose 1989 J.D. thesis paper at the Christian Regent University is a confused braid of Republican party swooning, unreconstructed theories of what makes a good family, and, of course, Christianist (not Christian) legal and social arguments.  Arguing for the Family Protection Act of 1981, he wrote glowingly of its:

“traditional family support measures, such as…a restraint of federal intervention with state statutes pertaining to chld abuse, a redefinition of abuse to exclude parental spanking, and a prohibition of funds for homosexual legal services and other anti-family activities. The Act incorporates sound principles of federalism and self-government, while refusing to acknowledge homosexuality…as acceptable behavior and actions.” (emphasis added)

Translation: “Federalism is good except when I don’t like the results. Homosexuality, bad.”

If McDonnell thought that the Virginia Statehouse was his last stop, he likely would have stood his ground. But he knows that ideas about higher office require him to tamp down his homo-hating tendencies, and he’s putting pragmatics over principle. Once the firestorm hit, he’d have taken a hit if, say,  Northrup Grumman decides not to headquarter in Virginia because of the state’s (and McDonnell’s) gay-bashing. Not the image that a pro-business conservative wants to cultivate. Note the order of those mentioned in the following statement McDonnell made to reporters in connection with this new Directive:

“It has caused too much fear and too much uncertainty in the business community and the higher-education establishment and among young people in the commonwealth — and I simply won’t stand for that.”

Translation: “Business comes first. But I’m also worried about turning off a whole generation of younger voters, who might not want me in the Oval Office if I’m seen as too anti-gay.” (As this story shows, even in Mississippi teens are siding with their gay classmates over authorities that would deny them basic equality. Here, a school district canceled a prom rather than allow a lesbian to bring her date.  Sigh.)

Of course, McDonnell is already paying a cost with the true believers. The nut-roots of what’s left of the Republican Party aren’t happy, and are setting up camp with Cuccinelli:

“Steve Waters, a Republican operative closely aligned with the party’s conservatives, said of the McDonnell statement:  ‘There is trouble in the Republican house when the attorney general seems to side with the grass roots of the Republican Party and the governor and lieutenant governor seem to be straying away.'”

Will this lead to legislation protecting against workplace discrimination based on sexual orientation? Don’t count on that happening any time soon, but at least this kind of kerfuffle moves that day a half-step closer.

  1. Quick note: The document states that discrimination based on sexual orientation must only have a “rational basis,” which is likely enoughprotection for job discrimination claims. But the Directive isn’t particularly helpful for more controversial issues like marriage equality,  where the best chance of success is in courts that hold sexual orientation to be a “suspect class” for equal protection purposes, thereby requiring that the state show a substantial justification for discrimination.

Don’t Ask, Don’t Tell, Don’t Change — Don’t Persuade

March 5th, 2010 1 comment

With forces aligning in favor of repealing the “Don’t Ask, Don’t Tell” policy that has had untold economic and human cost on the military, into the breach steps former Air Force Chief of Staff Merrill A. McPeak. McPeak, who served in that role in the early 1990’s (during the adoption of the “Don’t Ask, Don’t Tell” policy), has an op-ed in today’s NY Times where he ends up revealing more about his own biases than anything else.

There are so many weaknesses in McPeak’s argument that it would take more space and time than I can give to deconstruct them all. But the biggest problem is McPeak’s unexamined assumption that homosexuality is a kind of weakness, disability, or inherently disqualifying condition. Here he is on military fitness and exclusions:

The services exclude, without challenge, many categories of prospective entrants. People cannot serve in uniform if they are too old or too young, too fat or too thin, too tall or too short, disabled, not sufficiently educated and so on.

Note that each of the named exclusions, whatever their merits, focuses on something about the individual that renders him or her unfit for military service. The argument against allowing gays to serve openly in the military, though, has been pitched — even by McPeak, in this same op-ed — as a question of unit cohesion. So here McPeak is making a different kind of argument — that gays are unfit to serve, not because of “unit cohesion, but because of something wrong with them. Worse, he doesn’t acknowledge that he’s shifting ground here. (He doesn’t tell, and hopes that the reader doesn’t ask.) Further evidence of this view of gays as somehow weak or inferior comes at the very end of the piece:

I do not see how permitting open homosexuality in the [military] enhances their prospects of success in battle. Indeed, I believe repealing “don’t ask, don’t tell” will weaken the warrior culture at a time when we have a fight on our hands.

Note the subtle elision of the unit cohesion and personal weakness claims here. “Gay men in combat will weaken the warrior culture” is a still-effective, virulently homophobic, view of gay men as less than fully male in a gender-stereotyped way. It’s clear that McPeak’s real problem with gays in the military is that it makes people like him uncomfortable. Indeed, he makes that point explicitly:

Thus allowing an openly gay presence in ranks will be very difficult until we have committed leadership for it. I certainly had trouble figuring out how to provide such leadership in 1993. While I believed all people are created equal, I did not believe such equality extended to all ideas or all cultures. And since I didn’t know how to advocate the assimilation of this particular form of diversity, I saw no way to prevent it from undermining unit cohesion.

Twenty-first century to General McPeak: “Homosexuality isn’t an ‘idea’ or a ‘culture.'” It’s a basic orientation, a vital part of one’s humanity. In fact, McPeak doesn’t believe that all people are created equal. Anyone who doesn’t understand that one’s sexual orientation is fissured deeply into the core can’t possibly be an advocate for assimilation, so it’s no surprise that McPeak “didn’t know how to advocate” for “this particular form of diversity.” But that’s no excuse for the military’s throwing up its hands. No one is suggesting that the integration of openly gay and lesbian soldiers will be seamless, any more than the integration of female soldiers has been. But, like any change to any institution, it can and must be managed, just as racial integration was (better, I hope).

Speaking of the integration of women, it’s clear that McPeak is discussing gay men, not  lesbians. That’s because avoids saying anything about women in the military. Do lesbians undermine the “warrior culture” of female soldiers? Or are the women not warriors? Should lesbians be permitted to serve, even if gay men aren’t? McPeak, by the logic of his own argument, wouldn’t have a problem with this gay/lesbian division, because the military can justify exclusions and discriminations that wouldn’t be tolerated in civil society. So he avoids the topic altogether.

Then there’s the biggest elephant in the room: The plain fact that other nations, including countries whose militaries we serve alongside, like Britain, do allow gay men and lesbians to serve openly. If these population-wide, natural experiments aren’t applicable to the U.S. military, McPeak at least has an obligation to explain why. Instead, there’s only silence, broken only by the insistent murmur of homophobia (in the truest sense of that word) that misinforms this exercise in harmful sophistry.

“All that is needed for bad fashion to prevail is for gay men to do nothing.”

December 1st, 2009 No comments

The title comes from a comment to this story, featured on boingboing (h/t to D/P, one of my readers). This picture is priceless:

200911301120
I love the bemused look on her face: “Now what? I can’t just leave…. And who has time for fashion with all of these homosexuals to save? Should I have put a semi-colon rather than a comma after ‘sin’?”
The Syracuse student (left) became an instant celebrity with this inspired piece of performance art.
Unlike the in-your-face approach of, say, throwing blood at St. Patrick’s Cathedral, this is winningly disarming — and a good model for taking on some of these fools. Perhaps next time she’ll think:  “Maybe I have better things to do than than to stand on a sidewalk holding up a sign.  There’s a stack of dirty laundry at home that’s not getting any smaller.”
Funny. Just this morning I was thinking:  Maybe a better use of humor in response to some of these anti-gay nuts would be a more effective way of dealing with them. Then this comes in.  One act of free speech completely swamped by one more clever.

The End of (Half of) DOMA: Massachusetts Lawsuit Exposes the Lies

July 9th, 2009 No comments

As many readers by now know, yesterday the Massachusetts Attorney General, Martha Coakley, filed a complaint challenging the constitutionality of section 3 of the Defense of Marriage Act. (For a good summary of the event, check out Law Dork.) Section 3 defines and limits “marriage” to opposite-sex couples for federal purposes; thus, even in the few states that have achieved marriage equality, like Massachusetts, same-sex couples have no skin in the federal rights and benefits game.

The complaint is devastating, and the case can be expected to succeed on the merits. From the Introduction comes this brief and effective summary of what’s wrong with DOMA:

“In enacting DOMA, Congress overstepped its authority, undermined states’ efforts to recognize marriages between same sex-couples, and codified an animus towards gays and lesbian people.”

Yes, yes, and yes.

As to the first point: Congress was legislating on a sandy foundation in enacting section 3, the only section that the lawsuit challenges. (Section 2 provides that no state will be required to recognize the same-sex marriages performed in another state; this provision might be valid under the opaque “full faith and credit” clause of the U.S. Constitution.) One searches in vain for a prior instance, throughout history, where Congress attempted to define “marriage” through legislation–  this matter, like most areas of domestic relations, has been thought of as one of the areas of law most clearly committed to state law. And the evidence for this conclusion is clear and abundant.

First, over the years Congress has proposed (but never passed) numerous constitutional amendments to regularize divorce and marriage. The cumbersome constitutional process was thought necessary because Congress assumed that it lacked the authority to legislate in this area. In a report from 1892, the House Judiciary Committee stated that if Congress had this authority:

“[I]t would soon undertake to legislate upon the main body of domestic and local interests of the people which have always belonged to and been exercised by the States.” H.R. Rep. No. 1290, at 1 (1892) (emphasis added).

Nor is this any less clear today. As the Massachusetts complaint states, several members of Congress stated that section 3 of DOMA exceeded federal power. Of course, as Andrew Sullivan points out, “today’s GOP” support states’ rights only where convenient.

The Supreme Court, too, has long assumed that domestic relations were matters of state, and not federal control. In a case from 1890, the Court stated: “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States.” In re: Burrus, 136 U.S. 586 (1890).

And the usually-states-rights friendly current Court (OK, never mind Bush v. Gore) is of the same opinion. Here’s Justice Clarence Thomas, noting that Congress can’t regulate anything it feels like, just because there’s some incidental effect on interstate commerce: “the power to regulate ‘commerce’ can by no means encompass authority… to regulate marriage… Our Constitution…leaves such matters to the individual States, notwith standing those activities’ effects on interstate commerce.” (United States v. Lopez, 514 U.S. 549, 585 (Thomas, J., concurring)).

Thomas is the most conservative member of the Court when it comes to the powers of Congress, but Lopez (which was about another issue entirely) showcased a Court in remarkable agreement on the issue of domestic relations. As Professor Anne Dailey has stated, the Lopez Court, divided on the interstate commerce issue before it, was nonetheless united “around the principle that family law constitutes a clearly defined realm of exclusive state regulatory authority.”  Federalism and Families, 143 U. Pa. L. Rev. 1787, 1789 (1995).

So what arguments might be made that Congress did not overstep its authority? No compelling ones, I’d say. One might argue that DOMA’s reference to federal benefits that are independently justified is just “housekeeping” —  just to make clear who’s entitled to them. Along similar lines, see the Department of Justice’s much-attacked brief in the California DOMA cases: DOMA is “neutral” in the marriage arena, and simply takes an administratively conservative approach by not “taking sides” in the marriage equality debate.

The Massachusetts complaint blows these arguments apart, and makes me wonder whether DOJ will fight this suit with the contention that DOMA is “neutral.” As the complaint states, DOMA forces the state to discriminate against its own citizens — especially in the provision of Medicaid benefits, which are funded by both the feds and the states. Massachusetts gets no federal contribution towards the marriage-dependent benefits of same-sex couples. What’s neutral about this?

This brings me to the last point of the complaint’s introduction — DOMA “codified animus towards gay and lesbian people.” Read the testimony, some of which is excerpted in the complaint, and tell me that this isn’t true. Rep. Tom Coburn, for example, said that no society had lived through “the transition to homosexuality….” (We’re transitioning to homosexuality? Why aren’t things getting ever-more fabulous?) DOMA had nothing to do with “states’ rights,” except as the antithesis of the term as historically understood.

In fact, read the complaint in any event. Even if you’re not a lawyer, you can get the gist of the problem that DOMA creates by going through the many practical and financial issues that have become needlessly and unfairly complex because of  this “neutral” law.

“What Happened in 1990?”: Almost Pitch-Perfect (but Not on “Queers”)

July 8th, 2009 No comments

Read Andrew Sullivan’s recent essay (“What Happened in 1990?“) explaining the dramatic shift in public opinion on the acceptance of “homosexuality” that occurred in the early 1990s. Mostly, he’s as persuasive and clear as usual, especially on the vital role that the AIDS epidemic played in changing public perception of gay lives.

But then there’s this passage, where he foregrounds a discussion of the shift in discourse that he surely helped bring about:

“Many of us then derided as right-wing fascists believed that the focus on sexual liberation, on ‘queerness’ and subcultural revolt were not actually very descriptive of most gay lives and not the most persuasive arguments for gay equality. I mean: if you want to be queer, why seek any legal acceptance at all? Isn’t marginalization the point? Why not revel in oppression as the only legitimate way to live as ‘the other’?”

Wait just one minute.

Sullivan is right that he and other conservatives of a certain stripe were vilified for their positions, unfairly to a large extent. Virtually Normal made the best (non-legal) case I’d seen for marriage equality back in 1995, tying analytically persuasive arguments to clear-headed passion. Sullivan is mostly an assimilationist, and so, really, are most people — gay and straight. And from that perspective, the book stands today as a tour de force. (It still works, in part because of its beautiful writing and in part because the equality issues he focuses on (marriage and military service) still aren’t resolved.)

That same book also revealed Sullivan’s impatience with what he termed liberationists; those who insisted on the use of the word “queer.” Here he is, expressing a view that likely didn’t help him with those who were flogging his politics:

“[W]hen the term [“queer”] is turned around and made compulsory; when it is wrested out of its context and used uniformly, in all times and places; when it is deployed without humor or  nuance, and even with pitiless agression; when it is turned into correct speech; when it is used to label rather than to converse, it is an entirely different word altogether. It is an attempt to tell everyone that they have a single and particular identity; it is to define an entire range of experience; it is to turn language from a conversation which is esesntially dramatic into a politics which is essentially programmatic. It is to make it a form of control.

“[L]anguage must…serve the complex needs of countless complicated individuals and must therefore reflect the results of a million choices and a myriad moments [sic] of human choice and interaction.” Virtually Normal, 84-85.

Well, yes to all of that. But, with respect, it seems to me that in using the language I quoted from What Happened in 1990, Sullivan succumbs to the same kind of reductive impulse that he decries in the above paragraphs from Virtually Normal. Before explaining why, let me acknowledge that his description of the limitations of the more radical wing of the LGBT rights movement is likely correct from a political strategy perspective — mainstream America wasn’t (isn’t, and won’t be) exactly comfortable with all of this “liberation” and “queerness” talk. Neither are many gays and lesbians, as he notes.

But the statement that queers, by their own lights, shouldn’t be interested in seeking “legal acceptance” because “marginalization” is the point that can’t go unchallenged. There are several problems with it. First, it seems very likely to freeze out those who are “queer” without wanting to be; those who can’t really assimilate, at least not to an extent that makes the mainstream comfortable. Here I’m primarily talking about gender-nonconformists.

Sullivan would likely respond that he’s talking not about the physical or emotional diversity of the LGBT community, but about an attitude that he finds suffocating, and that many gender-nonconformists might also not share. That seems to me a fair point, but one limited by the inability of those of us closer to the mainstream (read: gay white males of a certain class, a group to which I belong) to fully understand the struggles and, perhaps, impossibility of assimilation that the most marginalized face.

The bigger beef I have, though, is with the statement’s assumption that “queers” are (were?) monolithic in the way he states. I’m not too obtuse to see that he’s slamming the same caricature that he dismantles in Virtually Normal, but in doing so, his use of language fails to “serve the complex needs of countless complicated individuals….” Then and now, the most radical, unassimilated queers don’t by their “human choices” forfeit, or even weaken, their moral (as opposed to practical) case for equality.

One might have chosen to be part of Act Up — to use an example that Sullivan cites favorably in What Happened? — and to simultaneously argue for the sexually liberal position that the bathhouses should remain open and for legal equality in access to drugs, legal reform in the drug approval procedure, and fair access to hospitals for the same-sex partners of the afflicted. A transwoman might have radical ideas of social equality and redistribution while also arguing for access to the benefits of marriage. Are some of these ideas held in tension with each other? Of course; no one has a “single and particular identity.”

This post is probably too long for the point I wanted to make, but I was struck by what I found to be an atypical lack of empathy and nuance; a sense that Sullivan had found, and was picking at, a scab.