Category Archives: Gay Marriage

DOMA Dies A Lawyered Death

 

US Department of Justice:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.   Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.   In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.   I fully concur with the President’s determination.

Marc Ambinder at The Atlantic:

The announcement by the Justice Department came just minutes before White House press secretary Jay Carney’s regular briefing. Carney took care to press upon reporters that the president’s personal view about DOMA — that it is unfair to gays and lesbians — is distinct from the decision. The announcement from the administration came because of a court-imposed deadline from the 2nd Circuit.

Carney also said that the U.S. government will still be a party to these cases to allow the courts to make a recommendation about constitutionality and to allow other interested parties, such as Congress, to defend the law if they wish.

“We recognize and respect that there are other points of view,” Carney said.

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

The president has won favor with the gay community recently by pushing for and winning repeal of the “don’t ask, don’t tell” policy for gays serving in the military, which the lame-duck Congress passed in December. At that time, Obama reiterated his support for repealing DOMA but did not take further steps.

Matt Welch at Reason:

The law is still in effect, but probably lost whatever chance it had of surviving a legal challenge. You can read Holder’s letter here.

Reason on DOMA here, including this piece from 1996 by Nick Gillespie. Excerpt:

It is a misguided attempt to define for all time an institution that is constantly, if slowly, evolving. Its supporters may think they can stop social evolution in its tracks and enforce a singular vision of the good society. But such people misunderstand the very nature of a free society and its dependence on choice and change. The Defense of Marriage Act may well have put off state recognition of same-sex marriage for the time being, but such laws can do precious little to keep things as they are. There can be little doubt that, ultimately, the government will be following IBM’s lead, even as IBM has followed its employees’.

William C. Duncan at The Corner:

There is something about the marriage issue that provokes an “any means necessary” approach from its proponents (among whom I believe we can count the president, notwithstanding campaign rhetoric to the contrary).

The president’s strategy, however distasteful, could be successful. In almost every successful same-sex-marriage case so far, the attorneys charged with defending the marriage laws either refused to do so (Iowa, Northern District of California) or made only pro forma defenses while conceding key points to the pro-redefinition side (Connecticut, California Supreme Court). Whether it is a good thing to have key social policies decided by lawyer inaction is an important question.

Presumably Congress can seek to intervene in the DOMA suits in order to defend the law. Maybe the federal courts need a public-defender program for statutes that have fallen out of favor with the elites in power.

Doug Mataconis:

It’s worth noting that when Judge Walker struck down California’s Proposition 8 last year, he used to lower “rational basis” test. Nonethless, Holder’s arguments in the letter are very similar to those Walker used in his opinion, and I won’t be surprised to see parts of this letter show up in appellatte briefs down the line as persuasive authority.

Personally, I think the entire act is unconstitutional, an opinion that is also shared by Bob Barr, who introduced the Act when he was a Member of Congress in the 1990s:

I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

The other problem with DOMA is that it essentially tells couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized, which at this point constitutes less than 1/4 of the United States. It means a couple married in Iowa cannot move to any state in the American south without giving up all of their legal rights. This is exactly the kind of thing that the Full Faith And Credit Clause was designed to prevent. In fact, under current law, a marriage between a man and a woman that may not be legal in one state — such as a marriage between first cousins — will still be recognized as legal since it was legal under the laws of the state in which it took place. There is no rational reason why the individual liberty of gays and lesbians should be restricted in this manner.

Bryan Preston at PJ Tatler:

Does a president have the power to unilaterally declare laws passed by Congress and signed by his predecessors “unconstitutional?” This strikes me as setting an extremely dangerous precedent.

Kevin Drum:

This, by the way, is a good example why I’ve never joined in the general condemnation of conservatives for “reigniting the culture wars” whenever they introduce an abortion bill or somesuch. I’m on the opposite side of these conservative efforts, of course, but the fact is that liberals started the culture wars in the 60s and it’s something we should be proud of. So while I oppose the conservative side of the culture wars, I approve of the culture wars in general, and I applaud Obama and Holder for reigniting it last year when Congress repealed Don’t Ask Don’t Tell and for reigniting it in the case of DOMA today. Blacks, Hispanics, gays, women, the disabled and millions of others have benefited tremendously from the culture wars, and I’m happy to see it continue until there’s no more war to fight.

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The Thin Red Line And The Thin Blue Line Move Extremely Close Together

Nate Silver:

In April, 2009, when we last took a survey of gay marriage polls, we found that support for it had converged somewhere into the area of 41 or 42 percent of the country. Now, it appears to have risen by several points, and as I reported yesterday, it has become increasingly unclear whether opposition to gay marriage still outweighs support for it.

Here is a version of the graph we produced in 2009, but updated to include the dozen or so polls that have been conducted on it since that time, as listed by pollingreport.com. I have also included opinions on gay marriage from the General Social Survey, which asked about gay marriage as long ago as 1988.

Dan Amira at New York Magazine:

For the first time ever, a poll shows that more Americans support the right of gay people to marry than those who oppose it, 52-46, according to CNN. That’s a major milestone in itself, but what’s more, gay-marriage supporters could not ask for a better symbolic representation of America’s changing attitudes than the one in this graph

Joe My God:

I know you freaks are dying to comment on the shape of the graph.

Towleroad

Kevin Drum:

It’s only one poll, but it’s clearly part of a multi-decade trend that’s been moving in the right direction at the rate of a little over 1% a year. Until recently that is: in the past three years, polling on this question has improved at the rate of 3-4% a year. And this might end up being the greatest legacy of Vaughn Walker’s decision in the Proposition 8 case. His opinion might not have much influence on the Supreme Court when they end up ruling on the issue, but it probably does have an impact on public opinion. People respond to the opinions of thought leaders and authority figures, and when judges and politicians start speaking out more openly about this, it makes it safer for ordinary citizens to follow suit. Some of that is probably what’s happening here.

What’s also remarkable — though not new — is the huge gender divide on this question: men are obviously far more threatened by the idea of same-sex marriage than women are. Being thought a sissy during childhood is a common and scarring experience for boys, but being thought a butch or a tomboy probably isn’t such a wide or traumatizing experience for girls. In this particular case, men remain far more trapped in their traditional gender roles than women.

Allah Pundit:

Note the distinction. Ask people whether gays should have the right and you get a 52/46 split. Ask them whether gays do have the right — which of course was the point of Walker’s due process and equal protection rulings in the Prop 8 case — and it shrinks to 49/51, which is still a thinner margin than when Gallup polled a similar question just two months ago. It’s hard to draw strong lessons from a three-point swing, which is within the margin of error, but it does point towards the possibility that you’re more likely to build public consensus by taking the incrementalist approach and letting legislatures create rights than having courts divine them from the Constitution.

Andrew Sullivan:

What backlash? CNN’s latest poll, in the wake of the Walker decision, is easily the most promising to date for those of us in support of marriage rights for all. For the first time, a slim majority of all Americans backs not just marriage, but a constitutional right to marriage for gay couples. A majority, in other words, believes this to be a civil rights issue, which, of course, it is, because civil marriage has long been regarded as a fundamental civil right in American constitutional history. And a majority is in favor! I’m not sure what to make of a small discrepancy in wording – between whether gays already “have” such a right or whether they “should have” – but wouldn’t go so far as Allahpundit in arguing it shows that this process should be driven solely by state legislatures.

I know it’s messy, but surely the fact is that the classic American process is not, and should not be, either judicial tyranny or majority rule over a minority’s rights. It’s an ongoing interaction of the two. Would I prefer a total legislative and democratic victory for marriage equality? You bet I would. At the same time, can anyone gainsay our amazing progress in making the case?

In 1989, the idea was preposterous. But by relentless arguing, debate, litigation and legislative and ballot-box initiatives, we have moved the needle faster than anyone once dreamed of. When a proposition has 50 percent support, you can argue either that there is no need for the courts to act. But you could equally argue that with public support already this high, such a ruling could not meaningfully represent anything approximating “tyranny”. Certainly far less so than when the courts struck down bans on inter-racial marriage which enjoyed very strong popular support at the time, especially in the states where they prevailed.

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“The Celebration Of Lifelong Heterosexual Monogamy As A Unique And Indispensable Estate”

Ross Douthat at NYT:

Here are some commonplace arguments against gay marriage: Marriage is an ancient institution that has always been defined as the union of one man and one woman, and we meddle with that definition at our peril. Lifelong heterosexual monogamy is natural; gay relationships are not. The nuclear family is the universal, time-tested path to forming families and raising children.

These have been losing arguments for decades now, as the cause of gay marriage has moved from an eccentric- seeming notion to an idea that roughly half the country supports. And they were losing arguments again last week, when California’s Judge Vaughn Walker ruled that laws defining marriage as a heterosexual union are unconstitutional, irrational and unjust.

These arguments have lost because they’re wrong. What we think of as “traditional marriage” is not universal. The default family arrangement in many cultures, modern as well as ancient, has been polygamy, not monogamy. The default mode of child-rearing is often communal, rather than two parents nurturing their biological children.

Nor is lifelong heterosexual monogamy obviously natural in the way that most Americans understand the term. If “natural” is defined to mean “congruent with our biological instincts,” it’s arguably one of the more unnatural arrangements imaginable. In crudely Darwinian terms, it cuts against both the male impulse toward promiscuity and the female interest in mating with the highest-status male available. Hence the historic prevalence of polygamy. And hence many societies’ tolerance for more flexible alternatives, from concubinage and prostitution to temporary arrangements like the “traveler’s marriages” sanctioned in some parts of the Islamic world.

So what are gay marriage’s opponents really defending, if not some universal, biologically inevitable institution? It’s a particular vision of marriage, rooted in a particular tradition, that establishes a particular sexual ideal.

This ideal holds up the commitment to lifelong fidelity and support by two sexually different human beings — a commitment that involves the mutual surrender, arguably, of their reproductive self-interest — as a uniquely admirable kind of relationship. It holds up the domestic life that can be created only by such unions, in which children grow up in intimate contact with both of their biological parents, as a uniquely admirable approach to child-rearing. And recognizing the difficulty of achieving these goals, it surrounds wedlock with a distinctive set of rituals, sanctions and taboos.

The point of this ideal is not that other relationships have no value, or that only nuclear families can rear children successfully. Rather, it’s that lifelong heterosexual monogamy at its best can offer something distinctive and remarkable — a microcosm of civilization, and an organic connection between human generations — that makes it worthy of distinctive recognition and support.

Again, this is not how many cultures approach marriage. It’s a particularly Western understanding, derived from Jewish and Christian beliefs about the order of creation, and supplemented by later ideas about romantic love, the rights of children, and the equality of the sexes.

Or at least, it was the Western understanding. Lately, it has come to co-exist with a less idealistic, more accommodating approach, defined by no-fault divorce, frequent out-of-wedlock births, and serial monogamy.

In this landscape, gay-marriage critics who fret about a slippery slope to polygamy miss the point. Americans already have a kind of postmodern polygamy available to them. It’s just spread over the course of a lifetime, rather than concentrated in a “Big Love”-style menage.

If this newer order completely vanquishes the older marital ideal, then gay marriage will become not only acceptable but morally necessary. The lifelong commitment of a gay couple is more impressive than the serial monogamy of straights. And a culture in which weddings are optional celebrations of romantic love, only tangentially connected to procreation, has no business discriminating against the love of homosexuals.

But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.

Rod Dreher:

I don’t think most people realize how epochal the social shift we’re living through now, with regard to the big tangled ball involving sex, sexuality,marriage, civilization and Christianity. I take it for granted now that we are going to have same-sex marriage in this country, because the elites are all for it, young adults are all for it, and their support of it makes sense for the reasons of “postmodern polygamy” Ross identifies. But few people seem to have thought through the deeper ramifications of this civilizational shift. Most people seem to think this is merely a matter of moving the lines a bit more to the side, to bring gay couples into a stable social framework. In fact, it’s revolutionary to the core.

Andrew Sullivan:

Look at how diverse current civil marriages are in the US. The range and diversity runs from Amish families with dozens of kids to yuppie bi-coastal childless couples on career paths; there are open marriages and arranged marriages; there is Rick Santorum and Britney Spears – between all of whom the civil law makes no distinction. The experience of gay couples therefore falls easily within the actual living definition of civil marriage as it is today, and as it has been now for decades. To exclude gays and gays alone is therefore not the upholding of an ideal (Britney Spears and Larry King are fine – but a lesbian couple who have lived together for decades are verboten) so much as making a lone exception to inclusion on the grounds of sexual orientation. It is in effect to assert not the ideal of Catholic Matrimony, but the ideal of heterosexual superiority. It creates one class of people, regardless of their actions, and renders them superior to another.

Ross’s view is increasingly, therefore, one faction of one religion’s specific definition of Matrimony out of countless arrangements that are available for cohabitation in civil society and world history. It’s a view freely breached within his own church itself. And it has already been abandoned as a civil matter in some of the most Catholic countries on earth, including Spain and Argentina. And heterosexuals-only marriage is only a microcosm of civilization if you exclude all other relationships from civilization – friendship, citizenship, family in the extended sense, families with adopted, non-biological children, etc.

And – this is my main point – Ross’ argument simply ignores the existence and dignity and lives and testimony of gay people. This is strange because the only reason this question has arisen at all is because the visibility of gay family members has become now so unmissable that it cannot be ignored. Yes, marriage equality was an idea some of us innovated. But it was not an idea plucked out of the sky. It was an attempt to adapt to an already big social change: the end of the homosexual stigma, the emergence of gay communities of great size and influence and diversity, and collapse of the closet. It came from a pressing need as a society to do something about this, rather than consign gay people to oblivion or marginalization or invisibility. More to the point, it emerged after we saw what can happen when human beings are provided no structure, no ideal, and no support for responsibility and fidelity and love.

If you have total gay freedom and no gay institutions that can channel love and desire into commitment and support, you end up in San Francisco in the 1970s. That way of life – however benignly expressed, however defensible as the pent-up unleashed liberation of a finally free people – helped kill 300,000 young human beings in this country in our lifetime. Ross may think that toll is unimportant, or that it was their fault, but I would argue that a Catholic’s indifference to this level of death and suffering and utter refusal to do anything constructive to prevent it happening again, indeed a resort to cruel stigmatization of gay people that helps lead to self-destructive tendencies, is morally evil.

What, in other words, would Ross have gay people do? What incentives would he, a social conservative, put in place to encourage gay couples and support them in their commitments and parenting and love? Notice the massive silence. He is not a homophobe as I can personally attest. But if he cannot offer something for this part of our society except a sad lament that they are forever uniquely excluded, by their nature, from being a “microcosm of civilization”, then this is not a serious contribution to the question at hand. It is merely a restatement of abstract dogma – not a contribution to the actual political and social debate we are now having.

Glenn Greenwald:

First, the mere fact that the State does not use the mandates of law to enforce Principle X does not preclude Principle X from being advocated or even prevailing.  Conversely, the fact that the State recognizes the right of an individual to choose to engage in Act Y does not mean Act Y will be accepted as equal.  There are all sorts of things secular law permits which society nonetheless condemns.  Engaging in racist speech is a fundamental right but widely scorned.  The State is constitutionally required to maintain full neutrality with regard to the relative merits of the various religious sects (and with regard to the question of religion v. non-religion), but certain religions are nonetheless widely respected while others — along with atheism — are stigmatized and marginalized.  Numerous behaviors which secular law permits — excessive drinking, adultery, cigarette smoking, inter-faith and inter-racial marriages, homosexual sex — are viewed negatively by large portions of the population.

The State’s official neutrality on the question of marriage does not even theoretically restrict Douthat’s freedom — or that of his ideological and religious comrades — to convince others of the superiority of heterosexual monogamy.  They’re every bit as free today as they were last week to herald all the “unique fruit” which such relationships can alone generate, in order to persuade others to follow that course.  They just can’t have the State take their side by officially embracing that view or using the force of law to compel it.

But if the arguments for the objective superiority of heterosexual monogamy are as apparent and compelling as Douthat seems to think, they ought not need the secular thumb pressing on the scale in favor of their view.  Individuals on their own will come to see the rightness of Douthat’s views on such matters — or will be persuaded by the religious institutions and societal mores which teach the same thing — and, attracted by its “distinctive and remarkable” virtues, will opt for a life of heterosexual monogamy.  Why does Douthat need the State — secular law — to help him in this cause?

Second, Douthat is quite confused about what Judge Walker actually ruled.  He did not decree that there are no legitimate moral, theological or spiritual grounds for viewing heterosexual marriage as superior.  That’s not what courts do.  Courts don’t rule on moral, theological or spiritual questions.  Such matters are the exclusive province of religious institutions, philosophers, communities, parents and individuals’ consciences, but not of the State.  That’s the crux of this judicial decision.

Thus, one can emphatically embrace every syllable of Judge Walker’s ruling while simultaneously insisting on the moral or spiritual superiority of heterosexual marriage.  There would be nothing inconsistent about that.  That’s because Judge Walker’s ruling is exclusively about the principles of secular law — the Constitution — and the legitimate role of the State.  That legitimate role ends where the exclusively moral and religious sphere begins.  That’s why we call it “secular law.”  Judge Walker’s ruling concerns exclusively secular questions and does not even purport to comment upon, let alone resolve, the moral and theological questions which Douthat frets can no longer be “entertained” in a society that affords legal equality to marriage.

The court ruled opposite-sex-marriage-only laws unconstitutional not because it concluded that heterosexual and homosexual marriages are morally equal, but rather, because it’s not the place of the State (or of courts) to make such moral determinations.  Moral and theological debates are to be resolved in the private square — through the kinds of discussions Douthat claims he wants to have — not by recruiting the State to officially sanction one moral view or the other by using law to restrict moral choices.  Judge Walker, citing decades of clear precedent on that question, made as clear as can be that the issue Douthat seems to think was resolved by his ruling — namely, whether heterosexual marriages are morally or spiritually superior — is the exact issue he refused to adjudicate, precisely because those are the issues that courts have no business addressing and the State has no business legislating

Jonah Goldberg at The Corner:

Now, I gather that Greenwald is a pretty radical civil libertarian (of the hard leftist variety, of course), but we aren’t talking about his preferences. When he writes that racist speech is a fundamental right that is (and should be) widely scorned, I’m with him. But is it really treated as a fundamental right? What about speech codes? Hate-crimes laws? Similarly, secular law does permit cigarette smoking, but lots of states regulate it and essentially ban it in all public areas. Try smoking in public in California. Try getting a job at some hospitals if you smoke.  Meanwhile, tax dollars are routinely used to stigmatize smoking and excessive drinking. And then there are the countless exhortations in public schools and elsewhere against racist speech and attitudes as well. Whatever the merits of these policies, I don’t see anything like the state neutrality Greenwald is alluding to and he would certainly be livid if the state of California (or the federal government) countenanced public-service advertisements against gay marriage or homosexual behavior (I wouldn’t like it either, for the record) or if government treated gay couples the way it treats smokers (“Do that in the privacy of your own home, but not on the job or near children!”).

Douthat responds to Greenwald:

Well, first of all, I don’t believe that having the truth on your side is any kind of guarantee of success in public debate. (Nor, I’m sure, does Greenwald, or else he would have abandoned his views on torture and executive power long ago.) This is particularly the case when the truth in question asks men and women to engage in sacrificial and frankly counter-biological behavior, in pursuit of an ideal that few societies in history have even attempted to achieve. I will return to this point again and again throughout my responses, but let me be clear: The marriage ideal that I’m defending would be in equally serious difficulties in contemporary America if homosexuality did not exist, because what it asks of straight people is in deep tension with what straight people want to do, and with the way that the incentives of modern life often line up. This is why I’ve spent much more time writing about divorce and out-of-wedlock birth rates (and pornography, for that matter) than gay marriage over the years — and I wouldn’t be writing about gay marriage today if Judge Vaughan Walker’s decision wasn’t poised to throw the issue before the Supreme Court, where it might be settled legally once and for all.

Second, I think that most of Greenwald’s examples of cultural norms that aren’t legally enforced actually tend to back up my belief that law and culture are inextricably bound up, rather than his case that they needn’t be. A stigma on racism, for instance, would hopefully exist even in a libertarian paradise, but it draws a great deal of its potency from the fact the American government has spent the last 40 years actively campaigning against racist conduct and racist thought, using every means at its disposal short of banning speech outright. The state forbids people from discriminating based on race in their private business dealings. It forbids them from instituting policies that have a “disparate impact” on racial minorities. It allows and encourage reverse discrimination in various settings, the better to remedy racism’s earlier effects. It promulgates public school curricula that paint racism as the original sin of the United States. It has even created a special legal category that punishes crimes committed with racist intentions more severely than identical crimes committed with non-racial motivations. In these and other arenas, there isn’t a bright line between the legal campaign against racism and the cultural stigma attached to racist beliefs; indeed, there isn’t a line at all.

Or take alcohol and cigarettes. Why are Marlboros more stigmatized than Budweisers in contemporary America? Well, in part, it’s because there’s been a government-sponsored war on tobacco for the last few decades, carried out through lawsuits and public health campaigns and smoking bans and so forth, that’s far eclipsed the more halting efforts to stigmatize alcohol consumption. Here again, public policy, rather than some deep empirical or philosophical truth about the relative harm of nicotine versus alcohol, has been a crucial factor in shaping cultural norms.

Pascal-Emmanuel Gobry at The American Scene:

In his column, Ross puts forward the most eloquent defense I’ve seen of “lifelong heterosexual monogamy” as an institution that should be afforded special status by a society’s laws.

Unfortunately, responses to Ross’s column have been predictably dire. Supporters of gay marriage are increasingly candid about their belief that there can be no legitimate, non-bigoted argument against gay marriage, a view which I believe to be false and says more about a certain kind of narrow-mindedness than about anything else. (At this point I should probably produce my non-troglodyte Ausweis and state that I am in favor of legalizing same sex marriage.) Most responses make a spectacle of the author’s incapacity to consider viewpoints that do not fit neatly into her own biases.

Two interesting responses to Ross that stand out from this sorry lot have been from Hanna Rosin and Andrew Sullivan, two writers whose work I admire.

I’ll start with Andrew Sullivan. Reading Mr Sullivan is often frustrating to me because of what I take to be a reflexive tendency to cast anathema upon ideological opponents with inflamatory language (I don’t find it correct or useful, for example, to describe the Catholic Church’s stance on women in the priesthood as “un-Christian”).

Yet Mr Sullivan put forward what I think is the best response to the column, largely even-handed, generous, and very touching. His post is very much worth reading. If Ross puts forward the best argument on one side, clearly Mr Sullivan puts forward the best response. Even though at times Mr Sullivan comes close to reaching for the flamethrower (I don’t believe, as he seems at one point to imply, that Ross is “indifferen[t]” to gay victims of the AIDS epidemic; and I don’t know what it means to say that the Church is in a “High Ratzinger phase”), he is very generous and lucid.

He (and one would not think it should be noted, but given the other responses it must) actually understands Ross’s argument and gives what I think are the two best responses. That while the ideal Ross extols might be wonderful as a religious or even a moral ideal, it does not necessarily follow that the law should promote it at the exclusion of everything else. And that even if that were true, the fact of countless homosexual unions exists, unions that are worth something, and that denying them the legal protections of marriage is a very heavy, to the point of being inhumane, price to pay for a theoretical protection of another kind of ideal.

But really I don’t do it justice. I basically agree with Mr Sullivan, and felt more attention should be given to a great piece of writing.

“Hanna Rosin’s take”!http://www.doublex.com/blog/xxfactor/marriage-was-awesomein-17th-century is also worth reading, considerate and rooted in the teachings of history as it is, although she fails to actually grapple with Ross’s argument in certain key respects.

Where Ms Rosin fails is that, after acknowledging that Ross’s argument is substantially different from the regular litany of gay marriage opponents, she still takes it as a nostalgia argument. Ross wants to “go back” to an era where marriage was defined a certain way. She asserts that the kind of marriage that Ross defends never actually existed, or only existed at the cost of “love or choice.” I actually think that’s highly debatable, but I also think it’s beside the point. Her assertions that “[t]here is no barbaric Orientalist marriage which contrasts with a pure, Western one” and that “[m]arriage in the Bible was almost always polygamous” are correct but also irrelevant, because Ross never claimed any of that.

Just as Ross is a very effective critic of the sexual revolution because he recognizes that it has had many positive repercussions, his critique of gay marriage is worth taking seriously precisely because it doesn’t harken back to some mythical era which he starts out by acknowledging never existed.

If Ross wants to “go back” to anything, it’s not so much an era as ideas — ideas that have been with us for a very long time, even if they were all too rarely practiced.

Adam Serwer at The American Prospect:

I can’t speak to the Catholic view of marriage, but I will say this: My parents met in the 1950s when they were teenagers in a small town in upstate New York. They married in their early 20s, and went on to raise two kids. In many ways they are the embodiment of Douthat’s religiously inspired ideal of heterosexual marriage. Except that for about the first five years or so of their relationship, it would have been illegal in many parts of this country for them to get married, because my father is white and my mother is black. My parents’ relationship was startlingly apolitical given the era — they told me they weren’t even aware of Loving v. Virginia at the time despite being married only two years later.

I don’t know what it’s like to be gay and not be able to marry one’s partner, but knowing that my parents, who are more in love with each other than any two people I’ve ever known, could have been legally prevented from getting married within their lifetime because they are not the same race has always framed the issue of marriage equality for me. It’s heartbreaking for me to think of my parents not being able to be married for no other reason than because of entrenched cultural taboos against miscegenation, because their kind of love is so rare that denying it implicates the state in an indefensible act of cruelty. Reducing marriage to a matter of procreation seems ridiculous to me because I don’t consider myself or my brother the most meaningful product of my parents’ marriage; it’s the fact that more than 40 years into it, my mother and father are still each other’s best friend. I’m not in awe of me, I’m in awe of that.

I can’t help but reflect on my own parents when I think about how many people are denied that experience simply because they happen to share the same gender. It’s hard for me to understand how anyone could see that as any kind of justice.

Paul Waldman at Tapped:

These are the words of a defeated man. And they may reflect what’s currently going on in the conservative elite. If you’re a part of that elite, by now you’ve probably had plenty of exposure to gay people — at college, in the course of your work, and in the place where you live. So you probably find the kind of naked bigotry still expressed by some in the religious right to be repellent. The rhetorical shift of recent years — in which conservatives take pains to stress that they aren’t denying gay people’s humanity or rights, just trying to defend tradition — is something you genuinely believe. But that leaves you with the sentiment reflected in Douthat’s column, which is this: Yes, gay unions are meaningful and worthy of respect. But straight unions are really, really awesome. The problem is that marriage-equality opponents can’t define what gets taken away from the straight couple when the gay couple gets married, so they have nowhere to fall back to except vague encomiums to marriage between a man and a woman. Which is all very heartwarming, but it still doesn’t tell you why same-sex marriage should be illegal. And I’m pretty sure Douthat and other people making this argument know it.

Choire Sicha at The Awl:

The reason I always make fun of low-level Times semi-conservo-wonk Ross Douthat being unwilling to publicly explain his opposition to gay marriage is that he said it was too personal, essentially. (I know: quite unlike being singled out by society your entire life for being gay—though I guess some people take that personally too? Anyway, that’s why they call it privilege, Ross! Privilege literally means you don’t have to deal with such things.) So good news! He has laid it out, and I really encourage everyone to sit down and read it slowly. I found it an amazing experience. I won’t spoil the actually stunning conclusion—I was actually stunned! I had to sit down for a few minutes to gather myself!—but, in short, he apparently believes that gay marriage is some seven-week-old fetus that needs to be thrown out along with the bathwater of the society that straight people have so thoroughly fouled. After that, you can read the incredibly well-reasoned comments that were allowed on the Times site before they were shut down (hmm!) and then Glenn Greenwald picking apart a few points nicely—but in an incredible way, Douthat is literally unaddressable. Douthat really does want people to be happy, I think. But this all reads like he’s never met a person before, so how would he know?

UPDATE: Noah Millman at The American Scene

More Douthat

And even more Douthat

Ezra Klein

UPDATE #2: Douthat responds to Sullivan

Patrick Appel at Sullivan’s place responds

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Filed under Families, Gay Marriage, Mainstream, New Media

The Two Propositions Of The Day: Proposition 8

Andrew Sullivan with the ruling

Marc Ambinder:

Here’s what you need to know about Judge Vaughn Walker’s decision invalidating California’s Proposition 8, a referendum, passed by voters, that banned same-sex marriage. The decision itself will be appealed, and Walker’s reasoning could serve as the basis for argument at the appellate level — or, the appeals court could decide to argue the case a completely different way.

What matters are the facts that Walker finds. Why? As Chris Geidner notes, “[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker’s findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous.”

Walker, in his decision, writes that “Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license.”  He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values.

“Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight,” Walker writes. “Blankenhorn gave absolutely no explanation why
manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.”

Jacob Sullum at Reason:

The arguments for banning gay marriage are so weak, Walker said, that they fail even the highly deferential “rational basis” test, which applies in equal protection cases that do not involve a “suspect classification” such as race. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples.”

The decision is bound to be appealed and may ultimately reach the Supreme Court. The text of Walker’s opinion is available here. The Los Angeles Times has excerpts here. I discussed the equal protection argument for federal recognition of state-approved gay marriages here and here. More to come.

Rachel Slajda at Talking Points Memo:

In his findings of fact, Walker pointed out that California “has never required that individuals entering a marriage be willing or able to procreate.”

He also notes that slaves were unable to marry.

“The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained,” he wrote.

Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman’s identity is subsumed by her husband’s.

Chris Rovzar at New York Magazine

The Brad Blog:

Great news for real conservatives who believe in the U.S. Constitution and its guarantee of equal protection under the law! A U.S. District Court Judge, first nominated by Ronald Reagan and then appointed under George H.W. Bush, has struck down CA’s Prop 8 which added an amendment to the state constitution banning same-sex marriage equality. The state’s majority Republican-appointed Supreme Court had previously found no basis for banning same-sex marriage in the CA constitution. That finding was, in effect, overturned at the ballot box in November 2008 by Prop 8 which ended same-sex marriage in the state and left thousands of marriages in limbo until today’s finding.

Jim Newell at Gawker:

CNN is going to gay bars in San Francisco on TV right now, for reactions. (Update: No one was in the gay bars so they stopped. Lame empty gay bars!)

You can read the full decision here. The judge found it unconstitutional under both the due process and equal protection clauses. The ruling is expected to be appealed and could end up at the Supreme Court.

Steve Benen:

The full ruling from Judge Walker, an appointee of President H.W. Bush, is online here.

Note, the case will now go to the 9th Circuit Court of Appeals, which tends to be pretty progressive. Many legal experts I’ve spoken to expect the Supreme Court to eventually hear the case.

In the meantime, the decision is heartening. The arc of history is long, but it continues to bend towards justice.

Jesse Zwick at The Washington Independent:

Looking ahead, it will be interesting to see what kind of role the issue of same-sex marriage, so incendiary in California in 2008, will play in the midterm elections in the state this November. The Courage Campaign, a progressive online organizing network based in California and formed partly in response to the passage of Prop 8, has been busy pointing out the role of the National Organization of Marriage (NOM), the main nonprofit behind the passage of Prop 8, in backing California candidates like GOP senate hopeful Carly Fiorina.

“In NOM, Carly Fiorina has aligned herself with a fringe group that relies on lies and fear to advocate discrimination and second-class citizenship for millions of loving American families,” Courage Campaign Chairman and Founder Rick Jacobs said in a press release. “Bigotry is not a family value and it has no place in the United States Senate.”

The National Organization of Marriage, already under fire for failing to disclose its donors to state election officials in Iowa and Maine, has now joined up with the Latino Partnership for Conservative Principles, an initiative of American Principles in Action, and the Susan B. Anthony List, a pro-life women’s network, to back Fiorina through the “Tus Valories” (Your Values) Campaign, an independent expenditure on the part of American Principles in Action.

bmaz at Firedoglake:

The common wisdom is that the prospects for upholding Judge Walker’s decision in the 9th Circuit are good. I agree. However, the common fear is that the ever more conservative and dogmatic Roberts Court will reverse and ingrain the discrimination, inequality and hatred of Proposition 8 and its supporters deep into American law and lore. I am much more optimistic this is not the case.

As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:

…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:

Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
……
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.

I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives. It is exactly what Vaughn Walker has ingrained in to and framed his extraordinary decision today on.

Today is one of those rare seminal days where something important and something good has occurred. Fantastic. The beauty and joy of equality, due process and equal protection under the Constitution of the United States of America.

UPDATE: Dahlia Lithwick at Slate

Orin Kerr

Ilya Shapiro at Cato

Tom Maguire

William Duncan at NRO

Eugene Volokh

UPDATE #2: James Taranto at WSJ

Scott Lemieux

Dan McLaughlin at Redstate

Jim Antle in The American Spectator

UPDATE #3: David Frum at CNN

Steve Chapman at Reason

UPDATE #4: Legal Insurrection

Allah Pundit

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Filed under Gay Marriage

And How Are The Kids?

Dana Stevens at Slate:

Lisa Cholodenko’s The Kids Are All Right (Focus Features) is the movie we’ve been waiting for all year: a comedy that doesn’t take cheap shots, a drama that doesn’t manipulate, a movie of ideas that doesn’t preach. It’s a rich, layered, juicy film, with quiet revelations punctuated by big laughs. And it leaves you feeling wistful for at least three reasons: because of what happens in the story, because the movie’s over, and because there aren’t more of them this good.

Jules (Julianne Moore) and Nic (Annette Bening) are a middle-aged lesbian couple in Los Angeles with two teenage children, Joni (Mia Wasikowska) and Laser (Josh Hutcherson). Nic, a physician, is the breadwinner of this stable, well-off family, while the unfocused Jules has vague plans to start a landscaping business on her partner’s dime. Near the start of the movie, Joni, at her younger brother’s urging, calls up the sperm bank that provided their mothers with genetic material 18 years ago. Behind their mothers’ backs, the siblings make contact with their hitherto anonymous biological father, Paul (Mark Ruffalo), a hedonistic restaurateur who’s flattered by the attention but unsure how to proceed. Gradually, Paul is incorporated into the fringes of the family: The children bring him home for an excruciatingly awkward lunch, and against Nic’s wishes, Jules takes on the job of landscaping his yard.

It’s fitting that gardening—Jules’ landscaping project, Paul’s achingly trendy farm-to-table restaurant—plays such a large role in The Kids Are All Right, because the movie is at heart about the ecosystem of a family, and the way that system changes when an exotic species is introduced. The presence of Paul changes everything, exposing fault lines in Nic and Jules’ relationship and forcing the children to defy their mothers and reassess their peer friendships. (A subplot in which the introverted Laser finally stands up to his jerky best friend is particularly well-handled.)

Rob Hunter at Film School Rejects:

The Kids Are All Right is a bright and beautifully acted look at what it means to be part of a family. The ups, the downs, the relationship with your partner and kids… the specifics of it may seem like ingredients for a niche indie picture or even worse, a “message” movie about tolerance, equal rights, and the evil liberal agenda, but it never even comes close to such things. Instead the movie is simply about the challenges of family life. Nic is a doctor who enjoys both her wine and her control streak a bit too much. Jules is the more relaxed and carefree half of the relationship who floats between “careers” with a mix of indifference and enthusiasm. Together they’ve raised their kids as well as any parent could which means there’s plenty of room for doubts and concerns. Joni has just graduated high school and is mere months away from heading off to college, and as nervous as she may be her parents are even more terrified. And then there’s Laser who seems well adjusted but may be exploring his sexuality in some unexpected ways. And by unexpected ways I mean with a ginger of course.

As wonderfully written and directed as the film may be the picture’s real power is in the acting. All five of the lead performers are giving some of the best work of their careers. Granted, that’s not saying much for Hutcherson, but even with a limited background he’s never seemed as natural as he does here. Wasikowska shines as the child on the cusp of adulthood torn between home and the outside world, and she manages more with a quivering lip then many of her peers do with their entire body. Ruffalo is almost always the most watchable and intriguing actor in any of his films and that trend doesn’t change here. His character is an inexcusable dick at times but you can’t help but want to forgive him. A lesser actor (with harder features and without his sad, puppy eyes) would have a hard time accomplishing the same.

Bening and Moore both give fantastic and believably real performances as a couple who love each other, warts and all, and can convey that long history together with little more than a glance. I joked about Moore above (no I didn’t), but she imbues Jules with such a goofy and effortless charm that you could easily see yourself falling into her smiling embrace. But as good as everyone else is the performance of note here belongs to Mrs Dick Tracy herself, Annette Bening. As the most authoritative adult of the three Nic is tasked as straight-man to the more loose and casual performances of Moore and Ruffalo and the childish behaviors of the kids. She never becomes unlikable though, and as her grip on things begins to crack it’s a slow tremble of emotion that begins to spill out. A certain dinner table scene is a masterclass in itself in the art of acting as Nic navigates some surprising revelations and comes out wounded and scarred on the other side.

Andrew O’Hehir in Salon:

By making a movie in which a pair of married lesbians are played by well-known hetero actresses Annette Bening and Julianne Moore, and in which one partner (Jules, played by Moore) has an affair with a straight man, Cholodenko and co-writer Stuart Blumberg capitulate — in some people’s view — to a whole set of “Celluloid Closet”-type homophobic stereotypes, and possibly lend aid and comfort to the right-wing view of homosexuality as a “lifestyle choice.” Furthermore, Cholodenko doesn’t seem terribly concerned about it. Before our Sundance interview, I read her a few examples from the first wave of critical comments and she laughed them off: “Maybe those people need to take their pink megaphone somewhere else.”

Ultimately, this might not even rise to the level of a tempest in a teapot: Lesbian and gay viewers, along with everybody else who actually sees “The Kids Are All Right,” are likely to find it a sympathetic, honest and frequently hilarious film about the challenges of marriage, parenting and contemporary family life, with one highly topical twist. But if some queer-radical types object to the film on political or ideological grounds, there’s a sense in which they’re right to do so. This movie definitely isn’t aimed at them.

In other interviews, Cholodenko has joked that she’s more interested in drawing in straight male viewers than in placating every possible segment of lesbian opinion. That makes the film sound a lot more calculated and Hollywoodish than it is, but the point she’s making is that “The Kids Are All Right” has a dramatic agenda but no political agenda. It’s not attached to a set of talking points about gay marriage and sexual identity, it’s not advocating some revolutionary artistic or social paradigm and it’s not a seminar in LGBT self-esteem.

Jules and Nic (Bening’s workaholic doctor character) and their teenage kids and the Peter Pan man-boy who threatens to come between them (a scene-stealing Mark Ruffalo) are flawed, selfish, fascinating characters you’ll sometimes like and sometimes hate. This is one of the most compelling and rewarding portraits of a middle-class American marriage in cinema history, as well as one of the funniest. The fact that the people in this particular marriage are both women is important to the story, of course. But perhaps, Cholodenko suggests, it isn’t all that important to the universe.

Dan Gifford at Big Hollywood:

This film is essentially selling a lite version of the leftist utopian political fantasy of not needing men and rejecting male patriarchy.

And what does a hetero guy in Hollywood know about any of that? Please allow a brief digression to establish bona fides.

Del Martin, founder of the modern lesbian, gay, bisexual and transgender–rights movement, was my great aunt. It was she and her life partner, Phyllis Lyon, who received California’s much publicized first same sex marriage license in San Francisco.

That outed, I will note that lesbianism, at least according to my aunt and many other other leaders who defined the movement, is a leftist political statement of female bonding against hunter-gatherer maleness that does not necessarily have anything to do with sex. In my aunt’s own words, a lesbian is “a woman whose primary erotic, psychological, emotional and social interest is in a member of her own sex, even though that interest may not be overtly expressed [sexually].”

That’s what comes through in Moore’s Jules character since she so hungrily embraces heterosexual sex, the thought of which apparently disgusts her parther, Nic. Pure sex aside,  lesbian feminists have always told me that the object of women’s politicized sexual links is to overthrow the patriarchal order and replace it with a feminist culture. “Just as sexism is the source of all our other oppressions, maleness is the source of sexism,” according to a statement from the Dyke Collective. Implicit in that rant is a rejection of males as fathers that provide anything positive to the raising of children.

Can that be true?

A study published in the Journal of Pediatrics found “… children in lesbian homes scored higher than kids in straight families on some psychological measures of self-esteem and confidence, did better academically and were less likely to have behavioral problems, such as rule breaking and aggression.”

Maybe the kids are all right.

But critics say that considering this research was “funded by several lesbian, gay, bisexual, and transgender advocacy groups, such as the Gill Foundation and the Lesbian Health Fund from the Gay Lesbian Medical Association“  plus the obvious fact that the political left dominates all media, even the scientific media, whatta ya ’spect?

So, maybe the kids aren’t all right.

Irin Carmon at Jezebel:

The action happens, so to speak, when the couple’s children track down the sperm donor that is their biological father — and apparently Julianne Moore has an affair with him. (In the trailer, this looks like chaste kissing.) With this twist, writes O’Hehir, “Cholodenko and co-writer Stuart Blumberg capitulate — in some people’s view — to a whole set of ‘Celluloid Closet’-type homophobic stereotypes, and possibly lend aid and comfort to the right-wing view of homosexuality as a ‘lifestyle choice.'” That, at least, appears to have been the complaints of some of Salon’s commenters — not a famously enlightened bunch, alas, but an interesting claim nonetheless.

In other words, does every Hollywood movie involving a lesbian have to suggest she really needs cock?

As a San Francisco Bay Guardian interviewer put it to Cholodenko, “We don’t see a lot of queer characters on screen, and so when we do, many want them to be perfect: the queer voice, the lesbian, the gay man. And when they step outside those boundaries, suddenly it becomes an issue, politically.”

Cholodenko replied that she (also a lesbian mother) identified strongly with the film and felt that it was true to her, and also that she didn’t find the boundaries between straight and gay to be so rigid. She went on,

I feel like, it’s kind of an interesting intermingling of straight and gay. I felt like, if I really want this to be a mainstream film, that’s good. This is really inclusive of gay and straight, and I like that. I like that personally and I like that for this film. I was much more interested in reaching out to the male population than I was concerned about alienating a sector of the lesbian population.

In other words, this was explicitly, at least in part, a capitulation to having more people identify with the story — but in a way that felt narratively true to Cholodenko, at least by her own account. If the film does succeed with “mainstream” (giant scare quotes around that one) audiences, then maybe the next time won’t be such a hard sell. And it won’t have to stand in as the “perfect” representation of a given group, not being the only one.

Judy Berman at Flavorwire:

The greatest strength of co-writer and director Lisa Cholodenko’s (who, it’s worth noting is a lesbian parent) script, as well as Julianne Moore and Annette Bening’s pitch-perfect portrayals of the couple in question, is that it paints its lead characters as very specific, likable but fallible people. Nic (Bening) is a resolutely Type A OB-GYN with strict rules for the kids, a tendency to be called away to work at just the wrong time, and a nasty habit of drinking too much to take the edge off of stressful situations. Jules (Moore) isn’t quite her opposite so much as her counterpart: a sort of free spirit with a lighter touch who’s never exactly managed to launch a successful career. They argue, like all couples do, but the love and deep attachment between them is always palpable. Oh, and they watch guy-on-guy gay porn together while they get it on. In a spectacularly awkward clip that is nonetheless true to the characters, Jules explains to their 15-year-old son that human desire is a strange and unpredictable (not to mention inexplicable) thing.

It’s easy to understand why oppressed groups can be so protective of the way they are portrayed in media. Movies like The Kids Are All Right, which may be rocketed to mainstream success on the strength of its two A-list stars (and equally strong supporting performances by Mark Ruffalo and Mia Wasikowska), might have a chance at getting Middle America to empathize with a lesbian-led family. But that shouldn’t mean Bening and Moore’s two moms should have to be perfect. Any film with flawless main characters is bound to be a forced, boring one more concerned with being politically correct than telling a powerful story.

The Kids Are All Right plants the viewer right in the center of this family in flux’s most difficult summer. By creating characters we feel we know, not in spite but because of their shortcomings, Cholodenko and her stars will undoubtedly win over viewers and rise above stereotypes.

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Filed under Gay Marriage, LGBT, Movies

And Now The Left Picks Up That Old Tenth Amendment

Rachel Slajda at TPM:

A federal judge ruled today that part of the Defense of Marriage Act, which defines marriage as between a man and a woman, is unconstitutional.

Judge Joseph Tauro, of U.S. District Court in Boston, issued rulings on two separate cases today.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote in the decision for Massachusetts v. Health and Human Services.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid,” he wrote.

Ed Morrissey:

The 10th Amendment application seems a little odd to me, especially in the case of Medicaid coverage.  That program uses federal funds in part to cover medical bills.  The federal government would therefore seem to have jurisdiction on how its own funds get spent, although the state should have the same latitude with its own funds.  After all, DOMA doesn’t tell states that it can’t recognize same-sex marriages, but just exempts marriage recognition from the full faith and credit clause of the Constitution so that other states don’t have to follow suit.  It also retains federal jurisdiction on marriage definition for the purpose of spending federal money on partner benefits, which also has nothing to do with the 10th Amendment.

If the Supreme Court endorses this stand, though, it sets up an interesting question for conservatives who express support for better enforcement of the 10th Amendment.  Can they get behind this interpretation?  And will this sudden interest in applying the 10th Amendment by the judiciary start spreading to other issues, especially in rethinking a century’s worth of decisions on the commerce clause?

Andrew Sullivan:

And so one of the principles held most dearly by some of the tea-partiers must logically hold DOMA unconstitutional. Much more on this tomorrow. But let me note right now the political ironies of this. The right is hoist on their own federalist petard and will now have to choose whether states’ rights or marriage inequality is more important to them. The Obama administration, meanwhile, now has to decide whether it will further defend DOMA in the courts, fighting against the principles of the tenth amendment so dear to conservatives or the fifth amendment so dear to liberals. The incoherence of the Republicans and the cowardice of the Democrats are now exposed more than ever.

Or they could both listen to Ted Olson. This issue is neither right nor left; it is about human dignity, civil equality and civil rights. And it is way past time the American polity grappled with this, instead of exploiting it for mutual partisan purposes.

Jack Balkin:

I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not– and I do not– Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge– who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are–is in a very different position than I am.

Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment– much beloved by conservatives– to strike down another law much beloved by conservatives–DOMA. There is a kind of clever, “gotcha” element to this logic. It is as if he’s saying: “You want the Tenth Amendment? I’ll give you the Tenth Amendment!” But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness– which is certain to twist both liberal and conservative commentators in knots– I do not support the logic.

The arguments of Judge Tauro’s two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government’s taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?

Dale Carpenter:

Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples.  The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples.  Previous state court decisions, like Goodridge, have also held that traditional marriage limitations are irrational.

What makes the case a bit different from some of the state cases are (1) the Obama Justice Department’s abandonment of the classic rationales for limiting marriage to its traditional understanding, and (2) the peculiar federal dimension involved.

Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23.

Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones.  Op. at 23–24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996.  But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I’m guessing was particular glee, Judge Tauro cites Justice Scalia’s dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24–25. Justice Scalia’s dissent in Lawrence is effectively the first draft of a brief for SSM.

The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it’s not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25–26.

The third rationale — promoting traditional morality — is insufficient after Lawrence.  Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia’s dissent.

And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26–27.

That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question.  Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it.  Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding.  Op. at 28–35.

A related justification, said the DOJ, was Congress’ interest in moving incrementally on the issue.  The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35–37.

What also makes Gill (potentially) distinguishable from the state marriage decisions is the federal context.  Failing a legitimate justification, the court says, there is nothing to explain the 1996 federal law except animus against gay people. That animus was displayed in the cavalier way Congress passed DOMA without examining its extensive effects, op. at 5–6, and in the moral condemnation expressed in both the statutory text and in many statements by members of Congress. Op. at 5 (noting congressional remarks) and at 5, 26 (noting congressional moral disapproval of homosexuality).

Joe Sudbay at AMERICABlog:

Today, we celebrate. But, this is only the beginning of the process. We’ll have to find out if the Obama administration plans to appeal these rulings. (Note to Obama administration: Please don’t.)

UPDATE: More Balkin

Noah Millman at The American Scene here and here

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Weigelgate… Bigotgate… Let Us All Tweet Our Name For The Gate

Matt Lewis at Politics Daily:

Perhaps Weigel will turn out two decades from now to have been prescient, but “bigot” is awfully strong language for a person who is making the case for tolerance – and this comment simply reinforced a longstanding view among social conservatives that The Washington Post and most of the rest of the mainstream media are not only implacably opposed to their policy agenda, but personally hostile to them as well.

(Disclosure: I like Dave Weigel. I’ve had him on my podcast several times. He has written about me in the past, and I have found him accurate and fair. So it gives me no joy to write about this.)

But opposition to gay marriage is hardly a fringe movement. A majority of Americans tell pollsters they are opposed to it, a number that, if you take him at face value, includes President Obama. Presumably Weigel would also count as “bigots” the 70 percent of African-Americans who backed Proposition 8 in California.

Conservatives, whom Weigel is paid to cover, were understandably irate. Penny Nance, chief executive of Concerned Women for America (CWA) told me, “If (Weigel) ever tweeted that African-Americans are bigots on this issue he would no longer be employed by The Washington Post. His own arrogance disqualifies him as a serious journalist assigned to covering conservatives . . . for The Washington Post to assign him to cover Concerned Women for America is like assigning a weasel to watch the hen house.”

Dan Gainor, a vice president at the Media Research Center, told me, “This is how the Post covers the conservative movement: Find someone who doesn’t even understand the traditional values that made our nation great and then assign him to report on the right. Throw in the fact that Weigel loves to bash conservatives and he’s the ideal Postie. At the same time, the paper hired a hard-core lefty in Ezra Klein to advocate for the left. It’s a ridiculous double standard. The Post should be both embarrassed and ashamed.”

When I confronted Weigel about his Tweet, he initially responded by Tweeting: “Unpleasant words are so much worse than watching 54% of your peers nullify your marriage,” a comment that struck me as the response of an activist more than a journalist. When I asked him of the ethics of such a Tweet being sent out by a reporter tasked with covering conservatives, he responded by explaining: “I like (and largely agree with) pro-lifers. But I do not understand or respect the motivation of anti-gay marriage campaigners.”

Robert Stacy McCain:

Weigel proclaims that he will “happily entertain arguments for the contrary,” but why should he? In the manner of all bien-pensants, he believes he is not merely right but good, and therefore that those who disagree with him are not merely mistaken, but evil.

As I have said of others, Weigel’s basic problem is that he is young. The young generally know only what they have been taught, and teaching nowadays is a profession increasingly monopolized by those who subscribe to dogmatic notions of egalitarianism, the established faith of academic today. Dissenters are as rare as witches in 17th-century Salem (whereas witches are now quite plentiful on campus, as Larry Summers could attest), and we need not marvel that few dare speak heresy.

According to the egalitarian view, inequality is always synonymous with injustice. From such a perspective, those who insist that homosexual relations should be treated differently than marriage — an institution ancient and universal, held by Judeo-Christian tradition to be a holy covenant in accordance with divine commandment – are benighted, prejudiced and, as Weigel says, “bigoted.”

Weigel long worked for the libertarian journal Reason. Despite my own profound libertarian tendencies (being an admirer of the Austrian economists Mises and Hayek), I’ve often found myself at odds with those Reasonoids who see same-sex marriage as a libertarian issue when the arguments for it are in fact egalitarian.

Ben Domenech at New Ledger:

Unlike his colleague Ezra Klein, Weigel is being asked by the Post to do shoe leather journalism, not just opinion and analysis — but unless this view will result in him not getting calls back from people he’s writing about, I see no reason why his expression of his personal opinion on those who oppose same sex marriage should spark any reaction other than “well, that’s what a lot of people in the media think.” (Frankly, Klein’s view that Joe Lieberman’s opposition to the health care bill would result in the deaths of thousands is a far more jarring comment. But that’s beside the point.)

I don’t know Weigel and I have never met him, but as far as I know he doesn’t represent himself as a conservative, just as someone who primarily writes about them. He first contacted me several years ago while doing a story for Campaigns & Elections in just that arena, wrote a bit for the libertarian Reason, and then moved to smart lefty journal The Washington Independent, funded in part by the Gill Foundation and George Soros’ Open Society Institute. So why would anyone assume that Weigel, after working for places funded by same sex marriage activists like Tim Gill, would have any difference of opinion on the matter than the rest of his colleagues?

Sure, conservatives might have hoped for more balanced coverage after Weigel professed his eagerness to write fairly about the Tea Party movement, and responded to those on the right who doubted his approach by saying “I’m going to work hard on changing your mind about this.” But I don’t know why anyone would assume that’s more than just polite pleasantries (delivered with Weigel’s typically sarcastic tone). He’s covering the right with the traditional “conservatives in the mist” approach, and nothing I’ve seen that he’s written thus far would indicate he has a more unique perspective to offer.

David Weigel:

Over the weekend, I got an e-mail from one of the organizations that campaign against gay marriage. The tone was boastful and celebratory about the push for a same-sex marriage ban in Minnesota. It irritated me enough that I tweeted: “I can empathize with everyone I cover except for the anti-gay marriage bigots. In 20 years no one will admit they were part of that.”

That comment offended some people, so I want to do two things. First, I apologize for calling same-sex-marriage opponents “bigots.” I was specifically referring to people who spend their working hours opposing gay marriage, not just people who vote to ban it. But those people aren’t bigots, either.
Second, let me explain what it meant. I’m a bystander in the same-sex marriage debate — I haven’t given to any cause on either side. But in 2006 I did vote against a Virginia same-sex marriage amendment, which passed. I didn’t, and don’t, think social issues should be subjected to votes like that. I don’t support much direct democracy in general — this is a republic, and we shouldn’t throw these kinds of decisions to the electorate at large.

But why was I willing to be so disrespectful to one group of activists? Unlike with most activists, I don’t really see the direct impact on their lives, or on the lives of the people who agree with them, of the cause they oppose. Antitax protesters are threatened by higher taxes. Anti-health-care-bill protesters fear their coverage will get worse. Anti-meat-eating protesters believe animals are being murdered and the environment is being made worse.

Even the birther movement has always made a kind of sense — oust Obama from office, and you get a chance to reverse what damage you think he’s done to your country.

But who’s threatened by legal same-sex marriage? Whose life is made worse? If there was science suggesting that children raised by same-sex parents are worse off than children raised by traditional families, that would be one thing, but I haven’t seen it. We’ve watched legal same-sex marriage in several European countries and several states, and it hasn’t ushered in some decline in the quality of life, or marriage, for those who don’t participate in it.

That’s what I don’t understand. That’s my bias, for now. I’ll happily entertain arguments for the contrary.

Ben Smith at Politico:

The Washington Post has juiced up its political coverage recently with a handful of new hires, including people I’ve long enjoyed reading, like Dave Weigel and Jason Horowitz, and a couple of smart young reporters for its PostPolitics page.

But it’s also made the decision to give much of its political space* to talented, reportorial, and openly left-leaning bloggers — Greg Sargent, Ezra Klein, and Weigel.

All news organizations are pretty much flying blind at the moment, and there’s been a great deal of erosion of traditional journalistic neutrality from both sides. But many organizations try to hew fairly clearly to the old aspiration of objectivity. I try in this space to stay on the neutral side of the line between sensibility and opinion.

The alternative, long promoted by advocacy journalists on left and right, is transparency: Everybody has a bias, the argument goes, so just be open about it. That’s how Weigel — who worked for a libertarian magazine, then a left-leaning web outfit — dealt with a flap roiling the conservative blogosphere, one that erupted after he tweeted about “anti-gay marriage bigots.”

Tommy Christopher at Mediaite:

I asked Weigel if he found the accusation of being biased against bias ironic.

I really do regret saying “bigots.” I like to follow a policy of calling people what they want to be called — or at least don’t object to being called. This is why you don’t see me call people “teabaggers.” I’m a Methodist, and I am friends with plenty of people who disagree with me on this issue, and understand how it’s not really comparable to, say, anti-black racism. Many opponents of gay marriage take that stance because they believe that gays are misled, and they can lead another lifestyle. I disagree, but believing so is not “bigoted.”

I like what he had to say about calling people what they want to be called. “Teabagger” outlived its usefulness a long time ago. It was funny and edgy for about 5 minutes, but now, like most name-calling, it’s just an obstacle to understanding.

As for whether the gay marriage opponents whom Weigel describes are “bigoted,” I suppose you could argue that the element of hatred isn’t there, and amend that to “ignorant.”

In any case, I hope there’s no movement to oust Weigel from WaPo. His reporting on the conservative movement is far more useful to the right than a raft of cheerleading blogs. He’s in a position to offer fair, tough-love analysis to the GOP that they won’t get somewhere else. Besides, better the devil you know. Would conservatives like Matt Lewis prefer someone like Markos Moulitsas to cover them?

More Smith at Politico:

The once-cautious Washington Post has begun to invest heavily in the liberal blogosphere, transforming its online presence – through a combination of accident and design – into a competitor of the Huffington Post and TalkingPointsMemo as much as the New York Times.

The Post’s foray into the new media world received some unfavorable attention last weekend when its latest hire, Dave Weigel, who covers conservatives, referred to gay marriage foes as “bigots.” But the resulting controversy brought into relief a larger shift: The Post now hosts three of the strongest liberal blogs on the Internet, and draws a disproportionate share of its traffic and buzz from them, a significant change for a traditional newspaper that has struggled to remake itself.

Besides Weigel, who came from the liberal Washington Independent, the Post also has Ezra Klein, hired last May from the American Prospect to bring his brand of deliberately wonky policy writing to its website; and Greg Sargent, who the paper said Tuesday will soon move to the Post itself after coming from TPM to run a political blog for the Post-owned website, WhoRunsGov.com, as well as two editors recently hired from the Huffington Post to handle online aggregation and strategy.

The quote from me in Ben Smith’s article is from a longer argument I made in our interview: Analytical reportage has traditionally been the province of magazines. It’s the stock-in-trade of the Atlantic, the New Republic, the Economist, the American Prospect, the Washington Monthly, and Reason, just to name a few. And if you want to play six degrees, I interned at the Washington Monthly and worked at the American Prospect; Greg worked at New York magazine and moved to Talking Points Memo, which was started by a former American Prospect editor; and Dave got his start at Reason and The Economist, both of which are right-of-center magazines.

All of those magazines write reported, analytical (and opinionated) articles for a sophisticated audience. But because their publishing cycles are slow, they’ve not traditionally been major players in the day-to-day conversation. But now you’ve got people who trained at those magazines and adopted their sensibilities writing at internet speed, which is to say, faster than the daily cycle. And that’s working, I think. At the very least, it’s working with elite audiences.

But it’s not, as Smith suggests, a story of ideology (though Tucker Carlson and David Frum might tell you that conservative publications place less emphasis on reporting and that accounts for why liberals and libertarians have gotten the first of these jobs), or even corporate strategy. Small magazines adopted blogs early because they were desperate for an entryway into daily reporting. Newspapers, for obvious reasons, were less concerned. But as newspapers got more concerned, they’ve hired the bloggers trained at small magazines because those bloggers report and write in a way that traditional media organizations recognize.

The media isn’t so much changing as repackaging, and my guess is that five or 10 years from now, there will be a lot of bloggers doing analytical reporting and everyone will agree that that was just a natural process of adaptation to a faster medium with a more elite readership and no space constraints. Those who’re inclined to more structuralist explanations will says that as the flow of information sped up and opinions multiplied there was more demand for reported, analytical content that helped people make sense of it all.

The first wave of these folks came from small magazines that have a more opinionated bent, but the second wave will come from inside newspapers and online publications that play it a bit straighter. But it won’t be, and isn’t now, a story of ideology. It’s a story of technological change, and the way in which new markets first get served by marginal players and then get swallowed up by established institutions.

James Joyner:

People forget that the business of journalism is business.  Hiring respectable bloggers with very high traffic levels — which was certainly the case with Klein — is just bowing to reality.  Especially when one considers that the Washington Post is losing money by the truckload, showing “an operating loss of $163.5 million in 2009, compared to an operating loss of $192.7 million in 2008″ and only manages to stay in business — if you want to call it that — thanks to the huge subsidy provided by Kaplan Testing.

Ultimately, this is just a further consolidation of the Power Laws model that Clay Shirky was propounding just as I was launching OTB.   The highest traffic bloggers are getting scooped up by the mainstream media or other big entities and further consolidating their power.   And, for reasons Ezra explains, that mostly means left-of-center bloggers are going to be hired, because they’re much more apt to write in a style which makes the major media companies comfortable.

Bill Scher and Peter Suderman at Bloggingheads

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Filed under Gay Marriage, Mainstream, New Media