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Michael Gerson: Gays can keep their rights if they don’t sue for them

In today’s Washington Post, Michael Gerson compares and contrasts the debates over gay rights with the debate over abortion rights — and concludes that gay rights, once gained, will be longer-lasting and more “settled” because they (mostly) haven’t been imposed by an out-of-control judiciary on an unwilling or divided public. Instead, the cause has advanced naturally and gradually through culture. And he warns:

It remains possible that the gay rights movement could provoke a backlash. If the Supreme Court were to strike down restrictions on gay marriage nationally, one could expect a Roe-like reaction in parts of the country.

Gerson might be right in a tactical sense. But his argument ignores a couple of things:

• The advancement of civil rights tends not to take an either-or approach to the question of judicial advances versus cultural advances. The ending of Jim Crow across the South, for example, clearly relied on court cases like Brown v. Board of Education, but the efforts of Martin Luther King Jr. and his cohorts simply made racism less acceptable as a matter of custom. Racism isn’t gone, of course, but the days of being overtly racist and a participant in polite society are largely over. Both aspects — legal and cultural — were important to including African Americans in the life of the country.

• The argument also ignores the question of whether certain civil rights actually exist under the law. Pro-lifers and pro-choicers differ on this, of course, but if a right to abortion actually exists under the Constitution, then it doesn’t really matter how “settled” the debate is. The whole point of being under the rule of law is to recognize that minority rights often conflict with the desires of the democratic majority.

It’s nice if everybody likes it when you exercise your rights. But it’s not strictly necessary.

‘Modern Family’ finally gives us some sweet, sweet gay love

Since I complained two months ago about the incredible chasteness of Modern Family’s gay couple, Cam and Mitchell, I thought it only fair to point out that we got some overt love and affection between the two in last night’s episode.

The first moment came early, when the two were discussing their greatest fears. Cam’s was “losing Mitchell” — and Mitchell, clearly touched, grasped Cam’s arm firmly and tenderly. The way people who love each other do.

The second was far less subtle. Upon realizing that their daughter wasn’t pining for something they couldn’t give her, Mitchell jumped into Cam’s arms and they twirled around.

And this is silly, but: I got just a touch verklempt. People who love each other tend to act like they love each other, and it was nice to see these two finally get that chance. Better yet, these exhibitions of love between the show’s gay characters weren’t the point of the story, but happened naturally in the flow of it. And that’s great: It was the exclusion of such affection that made the storytelling awkward. I’m glad Modern Family gave us these moments — and I hope they’re not the last.

Now if we could just see those two guys smooching…

Mackubin Thomas Owens: ‘Don’t Ask Don’t Tell’ stops gays from destroying the military with their lust

In the Wall Street Journal, Mackubin Thomas Owens disdains “antihomosexual bigotry,” but then offers up a heaping helping to justify retaining ‘Don’t Ask Don’t Tell.’

The destructive impact of such relationships on unit cohesion can be denied only by ideologues. Does a superior order his or her beloved into danger? If he or she demonstrates favoritism, what is the consequence for unit morale and discipline? What happens when jealousy rears its head? These are questions of life and death, and they help to explain why open homosexuality and homosexual behavior traditionally have been considered incompatible with military service.

The assumption here is that gay lust is sooooo overpowering an emotion that nobody in its grip can possibly act professionally. And that gay dudes can’t just be dudes with other dudes. How silly.

Hey, I’m not going to say that such incidents won’t happen. I will say that they will be an exception — and when they happen, they can be addressed through the nonfraternization rules the military already has in place.

UPDATE: Actually, Andrew Exum has a far more hilarious takedown of the Owens piece.

Lee Siegel’s weird criticism of Barack Obama on ‘Don’t Ask Don’t Tell’

Lee Siegel gets after Barack Obama today for pandering — and pandering badly — to his liberal base in the attempt to repeal “Don’t Ask Don’t Tell.”

The most consequential difference between 1993 and now is simple: We are fighting two wars. In 1993, advocating the dismantling of “Don’t Ask, Don’t Tell” distinguished you as a boldly tolerant person with sterling cosmopolitan credentials. And, indeed, forcing the military to accept the harmless fact of homosexuality would have had a salutary effect on American attitudes toward gay people.

But a cultural issue like gays in the military doesn’t seem to matter so much now, under the shadow of two wars’ death and mutilation. Gay marriage is far more important; the ban on it is the last social barrier for gay people in America. Getting the Pentagon to abandon “Don’t Ask, Don’t Tell” isn’t going to help the cause of same-sex marriage. It might even incite a conservative backlash against gays and set it back further.

Siegel’s wrong on a couple of points here:

• He apparently believes that the only reason to repeal “Don’t Ask Don’t Tell” is to make gays and self-congratulating liberal elites happy  – as though discrimination were a trifling concern. We’re fighting two wars! But that’s far from the case.

For one thing, there’s really a military readiness issue at stake — as Nathaniel Frank points out in today’s LA Times, 800 soldiers discharged under DADT had “critical” language skills needed in the War on Terror. And there’s also the more abstract (but still important) issue of military integrity: Admiral Mike Mullen told a Senate committee yesterday that forcing soldiers into the closet undermines military values. “No matter how I look at the issue,” he said, “I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.”That said: repealing DADT would be worthy its only purpose and benefit were to end formal discrimination in the ranks. There is more at stake here.

• Siegel’s assertion that gay marriage is the “last social barrier” for gay people ignores something critical: There’s plenty of legal barriers, DADT included, that are far more cumbersome in the day-to-day lives of gays and lesbians than any social strictures. Socially, in fact, most of the battles have been won: Even Republicans don’t want to be seen overtly tapping into anti-gay feelings anymore; there are, in fact, a number of conservatives against gay marriage who nonetheless support repealing DADT. It’s time for the law to catch up to society, actually, and repealing DADT is one of the ways to do so

But will repealing DADT set back the cause of gay marriage? It seems unlikely. The battle lines have been long drawn on that particular issue; it’s impossible to see how any further, larger unexpected backlash against gay rights could possibly be in the offing.

• If Siegel’s right that Obama is “pandering” to his liberal base on this issue … well, I’m fine with that, because that pandering is also the right thing to do. But it’s a weird way to pander: Piss off your base for a year because you’re not addressing the issue, and then when you do start to address it, put the issue on such a slow boat — everybody expects it’ll take a year to review the policy and pass legislation — that any substantive action is likely to wait until after the next election.

Check that. Going through the motions of creating a different policy but doing it so slowly that fulfillment is forever just over the next hill is actually the perfect way to pander. But if Obama wants any credit for this, he’s going to have to get it done.

John Boehner: How can we repeal ‘Don’t Ask Don’t Tell’ in the middle of two wars?

Rep. John Boehner

Rep. John Boehner

The Republican challenge to the repeal of ‘Don’t Ask Don’t Tell’ is going to avoid overt homophobia. Instead, opponents are going to say we just can’t do it right now. From NYT:

Gay rights groups are calling the hearing historic even as they question how quickly the administration is prepared to act. But Republicans are already signaling that they are not eager to take up the issue.

“In the middle of two wars and in the middle of this giant security threat,” Representative John A. Boehner of Ohio, the Republican leader, said Sunday on “Meet the Press” on NBC, “why would we want to get into this debate?”

It’s a poor argument. Congressman Boehner needs no reminding, of course, but America has been embroiled in war for nearly a decade now. Troops are already drawing down in Iraq, but they’re ramping up in Afghanistan — and though the president has vowed to “start” bringing them home in 2011, the truth is that nobody knows when or if the state of war will ever end.

If we wait for the wars to end to end unjust treatment of gays in the military, we will wait forever.

Here’s one benefit that war has traditionally had for America: It calls us to our better selves, sometimes in spite of ourselves. We spent World War II trying to bring down a racist tyrant with dreams of empire — and we succeeded. But rallying against Hitler’s regime was a big step toward making racism untenable here at home — how could we fight for freedom we weren’t granting here? — and it wasn’t long before Harry Truman desegregated the armed forces (in the face of opposition strikingly similar to today’s); the performance of women in factories on the home front also gave lie to the idea of the “weaker sex” and paved the way for postwar feminism. Those developments have been good for our country, and for its citizens.

We face a similar challenge today. We’re fighting terrorists who want to kill Americans — and want to do so in the name of a theology that often (though not always) mutilates women and executes gays.

Besides, it’s easy to make the argument that wartime is precisely when we don’t have the luxury of casual discrimination. I’ll repeat myself here: The downside to the current policy is obvious and tangible: Under ‘Don’t Ask Don’t Tell,’ we’ve discharged a number of military professionals — including linguists — whose skills are needed in the War on Terror. And a number of warriors have come out of the closet, post-combat, in recent years. Turns out they served with valor in combat; the closet was not a requirement for that valor.

Congressman Boehner asks how we can eliminate ‘Don’t Ask Don’t Tell’ during wartime. The real question is why we wouldn’t.

DADT: John McCain reminds us why we’re glad Barack Obama is president

As frustrated as Barack Obama can make you, he still has some shining attributes. He’s Not George W. Bush. And he’s Not John McCain. McCain reminds us why that’s a good thing:

In his State of the Union address, President Obama asked Congress to repeal the ‘Don’t Ask, Don’t Tell’ policy. I am immensely proud of, and thankful for, every American who wears the uniform of our country, especially at a time of war, and I believe it would be a mistake to repeal the policy.

This successful policy has been in effect for over 15 years, and it is well understood and predominantly supported by our military at all levels. We have the best trained, best equipped, and most professional force in the history of our country, and the men and women in uniform are performing heroically in two wars. At a time when our armed forces are fighting and sacrificing on the battlefield, now is not the time to abandon the policy.

Let me repeat what I said last night: The downside to letting gays serve openly in the military is almost entirely hypothetical; opponents are convinced that our macho warriors will be too creeped out by teh gays to fight our wars effectively. It’s an argument that seems more ridiculous when you’re in the midst of two shooting wars: I would’ve killed Osama, but that gay dude was creeping me out! It’s gay panic elevated to the status of law.

The downside to the current policy is obvious and tangible: We’ve lost a number of military professionals — including linguists — whose skills are needed in the War on Terror. And a number of warriors have come out of the closet, post-combat, in recent years. They served valoriously — and being forced into the closet during their service had nothing to do with it. Continuation of the policy isn’t just rooted in bigotry; it covers for it as well.

Ah well. We may not get universal health care or bank reforms or a sufficient pullback from our wars in the Middle East. Maybe the best we can expect from a Democratic president is that he not be a Republican. Some days, that’s enough.

Richard Socarides on Barack Obama and ‘Don’t Ask Don’t Tell’

One is wary of an op-ed piece in the Wall Street Journal urging Barack Obama to repeal ‘Don’t Ask Don’t Tell.’ Given the Journal’s anti-Democratic editorial tendencies, one can almost imagine the editors cackling gleefully as they publish advice they know might hurt the president’s poll numbers even further.

Still, the piece by Richard Socarides is correct.

Gay Americans have been among the president’s most ardent supporters. Their enthusiasm, and that of their families and friends, could be crucial in this year’s elections. The president’s action—or inaction—on Don’t Ask Don’t Tell will be noticed.

An increasingly frustrated bloc of gay voters—angry over marriage setbacks in California, Maine, New Jersey and New York and emboldened by Ted Olson’s and David Boies’s high-profile effort to declare unconstitutional laws that prohibit gay marriage—are growing impatient for equality.

That’s right. At the risk of making this Barack-Bashing Day here at the blog, the truth is this: The president has to accomplish some of the things he told his supporters he would accomplish. At some point “Not Being Bush” is not a good enough reason to be president. You’ve got to get stuff done. This is one of those things.

The Supreme Court, campaign finance and petition secrecy: It could be worse than you think

Back in October, my conservative collaborator Ben Boychuk made the argument that voters will be fine if corporations are allowed to spend unlimited money in elections because, hey, we can all see what’s going on:

Transparency and instant Internet disclosure make most of the old objections and warnings about quid pro quo corruption irrelevant. If a political candidate receives the financial aid of large corporations, and public knows about it, then the question of undue influence falls to the voters to resolve. As it should be.

Theoretically, this sounds great. In reality, though, there’s a good chance that transparency itself is going to become extinct.

Why do I say this? Because the Supreme Court is being asked to rule that petition signers — 138,000 people who asked Washington State to hold a referendum to overturn the state’s law allowing domestic partnerships for gays — have a First Amendment right not to have their names made public. The court has blocked the release of those names until it rules on the case.

The rationale for blocking transparency? Gay marriage opponents don’t really want to be criticized. They’d like to be able to use government to deprive other citizens of rights without having to be made to feel uncomfortable about it.

Voters ratified the law, but the conservative Christian groups that sponsored it want to keep the signed petitions that asked for the referendum out of public view because they fear harassment from gay-rights supporters, some of whom have vowed to post the names of petition signers on the Internet.

“We are pleased that the Supreme Court has agreed to hear this case that seeks to protect the rights of citizens who support a traditional definition of marriage to speak freely and without fear,” said James Bopp, Jr., lawyer for Protect Marriage Washington. “No citizen should ever worry that they will be threatened or injured because they have exercised their right to engage in the political process.”

So here’s my question: If the Supreme Court says that petitioners have a First Amendment right to keep their names private while supporting a public campaign, why on Earth wouldn’t that rationale also apply to people (and corporations) who donate to campaigns? Maybe there’s a good legal distinction, but I can’t think of one right now.

Ben’s right: The effects of corporate money flooding campaigns can be somewhat counteracted by know who is spending the money and where it’s going to. Soon, though, we might not even have that. And what we’ll have is millions upon millions of dollars being spent to sway voters without those voters having any understanding of how the system is really working. That’ll be good for corporations and the candidates they support. But it won’t be so good for the rest of us — or for our democracy.

When it comes to gay marriage, McCain is more liberal than Obama

Cindy McCain, that is. And now that her husband has nothing to lose — except an Arizona primary vote for Senate they may no longer feel quite as ardent about — she’s taking a stand for marriage equality:

The NOH8 Campaign on Wednesday announced that Cindy McCain, the wife of former Republican presidential nominee Sen. John McCain, has posed to demonstrate her support of marriage equality. NOH8’s Adam Bouska has photographed thousands of subjects since California passed Proposition 8 in 2008. All of the subjects are photographed with duct tape over their mouths to symbolize that their voices aren’t being heard on the subject of marriage equality.

It’s perhaps churlish to note that in 2008 — when California was considering Proposition 8 — John and Cindy McCain had a really high-profile platform to make their voices heard on the subject of marriage equality. And they didn’t.

Still, this really, really airbrushed photo is more than raging leftist communist Barack Obama has offered in support of marriage equality. So there’s that.

Michelle Malkin: Open government on Prop 8 amounts to “mob rule”

Michelle Malkin is opposing the effort to televise a federal trial on the Constitutionality of the anti-gay Prop 8:

I generally support more sunshine in all government proceedings. But the judge’s unusual method of securing video coverage is extremely troubling. This isn’t a sincere educational effort to provide transparency to the public. It’s a flagrant attempt at making Prop. 8 a show trial — and intimidating Prop. 8 backers who will be called to testify.

So she generally supports government openness. Unless it might make things awkward for her side. Interesting. Very principled. As it is: It’s a little tiresome to see that Prop 8 backers are continually willing to use the power of government to enshrine unequal treatment and yet are also continually reluctant to have the courage of their convictions to make their case publicly.

Still, she’s right that televising federal trial — even on a delayed basis — is unusual. She quotes former Judge Paul Cassell:

“Without getting into the merits of Proposition 8 or the legal challenges to it, I agree with Whelan that it seems highly unusual for a judge to authorize televised proceedings for this particular case as part of some new “pilot” project to see how televised proceedings work. Surely if there were going to be a test run of a new idea, it should be in a more run-of-the-mill case rather than this particular highly controversial one. Moreover, it does appear that public comment process has been completely short-circuited.”

In fact, there’s a decade-old (!!!) precedent for using controversial cases to bring greater openness to the federal courts: Before the Bush v. Gore case in 2000, you’ll recall, there’d been little or no electronic media coverage of oral arguments before the United States Supreme Court. But the court recognized that the public interest was served by A) nearly real-time  coverage of the proceedings and B) an audio document of the day’s arguments. Since then, the court has run hot-and-cold on whether to allow electronic media coverage of proceedings, but the precedent is there: Big cases are actually more likely to be opened to such coverage, not less.

The Prop 8 trial is obviously a big case that has a lot of public interest — and not just in California. It’s perhaps unfortunate that this would be the first case there to be open to electronic media, but this isn’t the 19th century. If it’s time to allow such coverage, then a big case provides a better reason to get it started.