Gender & Sexuality

Ginsburg's (Pyrrhic?) Triumph

AP Photo/Ron Edmonds

The two major same-sex marriage cases decided by the Supreme Court in June were puzzling for at least two reasons. Windsor, which struck down a major provision of the Defense of Marriage Act, featured a notably opaque opinion by Justice Anthony Kennedy. Hollingsworth v. Perry, on the other hand, which resulted in legal same-sex marriage in California—albeit through a technicality—had a vote lineup that bore little relationship to how justices typically vote in standing cases, suggesting strategic voting on both sides. Part of the reason for these anomalies might be the Justice Kennedy's uneasiness. But it's worth noting that the outcome produced by these two cases is consistent with the long-held beliefs of one justice who was (unlike Kennedy) in the majority in both cases: Ruth Bader Ginsburg.

Our Coming Incest Debate

The best argument for laws against incest. (HBO)

As the "traditional marriage" forces have been in retreat, both legally and rhetorically, there's an argument we haven't heard as much as we did a few years ago: that if you allow gay people to get married, then the same logic will demand that we also allow incest marriages and polygamous marriages. Today, Kent Greenfield grapples with it here at the Prospect; go read his piece, then come back and I'll tell you what I think about this.

My hunch is that the reason the incest argument has faded is that the anti-equality forces never gave it all that much thought in the first place. It was just something outside the prevailing definition of marriage that they thought would sound crazy to everyone, so they tossed it out there. The basic argument was that once you "change the definition of marriage," you'll be changing it to accommodate any preference anybody had. A man will marry his brother! A woman will marry her cat! A cat will marry a gerbil! (Bill O'Reilly is, for some reason, particularly troubled by the thought of interspecies marriage. Perhaps he doth protest too much?)

The Slippery Slope to Polygamy and Incest

AP Photo/Jonathan Ray Ward

It’s been a few weeks since the victories in the marriage cases at the Supreme Court, and maybe it’s time for the political left to own up to something. You know those opponents of marriage equality who said government approval of same-sex marriage might erode bans on polygamous and incestuous marriages? They’re right. As a matter of constitutional rationale, there is indeed a slippery slope between recognizing same-sex marriages and allowing marriages among more than two people and between consenting adults who are related. If we don’t want to go there, we need to come up with distinctions that we have not yet articulated well.

Progressives' Post-DOMA To-Do List

AP Photo/Alex Brandon, file

Two of my favorite writers on legal subjects, Dahlia Lithwick and Barry Friedman, wrote a piece for Slate earlier this week wondering if the progressive agenda hasn't been exhausted by recent victories on same-sex marriage. "While progressives were devoting deserved attention to gay rights," they argue, "they simultaneously turned their backs on much of what they once believed." I share their sense of frustration, but I interpret the landscape differently. To me, the problem isn't the lack of a robust progressive agenda. The problem is that progressives generally lack power. Last week, I saw strong defenses of progressive goals at every level of politics, from ordinary citizens to the highest offices in the country. From the opposition of activists and state legislators to barbaric attacks on the welfare state in North Carolina and reproductive freedom in Texas, to the President Obama's climate change speech and the eloquent defenses of fundamental values of equality made by Supreme Court justices Ruth Bader Ginsburg and Elena Kagan, a broad progressive agenda directed at urgent problems was seen in a brief window of time. The problem, of course, is that much of this came in the wake of defeat; even the stirring victory in Texas is likely to be merely delaying the inevitable.

Still, an extensive progressive agenda is out there. It's worth trying to define some of the most important issues that the American "left," broadly construed, should be and are trying to address. I do not claim originality or an exhaustive list; my intent is to generate discussion and thought about what problems to focus on and how to move forward.

All Tomorrow’s Parties

Gay Equality 1, Civil Rights 0 – join us in wondering how to celebrate this Fourth of July. (Hint: not by seeing Johnny Depp’s new movie, that’s for sure.)

AP Photo/The Omaha World-Herald, Brynn Anderson

Call it coincidence, but my bedside reading for the past couple of weeks has been the new two-volume boxed set of the Library of America’s Reporting Civil Rights. Awe-inducing and frequently thrilling, this monumental anthology of on-the-scene coverage of the fight for black equality features contributions by scores of writers, some rightly renowned—James Baldwin, Garry Wills, et. al.—and some unjustly obscure. Part One deals with the years 1941-1963; Part Two tackles the pressure-cooker decade that followed King’s “I Have A Dream” speech. Each volume also includes a sheaf of photographs, primarily of the writers themselves at the time. They’re often evocative ones, even if the era’s great photojournalism—no less worthy of commemoration—gets short shrift as a result.

Anyway, I won’t pretend I’ve made much more than a dent in the set’s almost 2,000 pages. But that’s not the point, since Reporting Civil Rights could easily keep my idle hours occupied until Christmas. (Not only was I kidding myself that I could somehow plow through it in time to write a full-fledged review this month, but yes, Monsieur Proust, you’ve lost out—again.) The point is that the Supreme Court sure does know how to cure me of any illusions that I’m reading about settled history.

A Fiercely Anti-Choice Ohio GOP Redefines "Pregnancy" to Mean "Not-Pregnancy"

Wikipedia

Last night, Ohio Governor John Kasich took a little time from his weekend to sign a new $65 billion budget for the state. There are many moving parts to the law, including a $2.5 billion tax cut which—like most Republican tax cuts—is meant to help the rich at the expense of everyone else. But of those parts, the most relevant for discussion—given last week’s fiasco in the Texas Senate—are the new restrictions on all reproductive services.

The Religious Right's Terms of Surrender

Rachel Ensign/Twitter

Last week's Supreme Court rulings striking down the Defense of Marriage Act and denying standing to California's Proposition 8 supporters have brought out the usual clown show of conservative religious leaders proclaiming the end of days. It's the standard stuff from the activist right: Here comes pedophilia, incest, polygamy, and bestiality. Christian florists will be dragged to jail for refusing to cater a same-sex wedding. School children will now be forced to simulate lesbian sex with their Barbies. Stirred to action by the decision, the Christian right has vowed to resist the spread of same-sex marriage nationwide, using civil disobedience if necessary. There's even talk of reviving the Federal Marriage Amendment, which would amend the U.S. Constitution to define marriage as being between a man and a woman.

A Queer History

Flickr/MKTP

I’ve been writing about marriage since 1993—two decades now. I expected these decisions, like everyone else. And yet I was still grinning like a fool when, with one fist, the Supreme Court smashed the Defense of Marriage Act (DOMA)—the 1996 law that banned the federal government from recognizing my marriage in Massachusetts—and with the other hand waved away the Proposition 8 case like a gnat. In practice, that means same-sex couples will soon marry again in California, the most populous state in the nation. And it means I am married not just in Massachusetts, but also in the United States (although not necessarily in Virginia, Texas, or any other state that bans same-sex marriage) for such exciting purposes as filing federal taxes, Social Security claims, immigration, and insurance.

Rick Perry Attacks Wendy Davis in the Worst Way Possible

Jamelle Bouie / The American Prospect

Texas Governor Rick Perry is speaking to the National Right to Life Convention, and given the events of the last few days, it’s no surprise he’s commenting on Wendy Davis and her filibuster of harsh anti-abortion restrictions.

Why the Prop. 8 Decision Should Make Liberals Uneasy

San Francisco City Hall after Prop. 8 was struck down. (Flickr/CHUCKage)

It's been pointed out many times that both the liberals and the conservatives on the Supreme Court often seem to reason backwards, starting with the outcome they'd prefer to see, then coming up with a rationale to justify that outcome. For instance, as I noted yesterday, Antonin Scalia was happy to overturn a law passed and overwhelmingly reauthorized by Congress (the Voting Rights Act) because he didn't like the law, then in a decision issued the very next day, thundered against the Court's majority for having the temerity to overturn a law passed by Congress (the Defense of Marriage Act), because that happened to be a law he did like. Fortunately, the sweeping majesty of our jurisprudential history provides an endless supply of rationales a justice can use to support whatever decision he or she would like to make.

But sometimes, a good outcome can produce a dangerous precedent. And that may be just what happened in the Proposition 8 case the Court decided yesterday.

The Wendy Davis Rebellion in Texas

AP Images/Eric Gay
AP Images/Eric Gay

A rowdy crowd of women making demands as loudly as they can—and winning? That sort of thing doesn’t happen in Texas. Except that now, apparently, it does.

Antonin Scalia Is Angry. Again.

Flickr/The Higgs Boson

Ten years ago, when the Supreme Court ruled that laws outlawing sodomy between consenting adults were unconstitutional in the case of Lawrence v. Texas, Justice Antonin Scalia wrote a blistering dissent. "What a massive disruption of the current social order," he practically wailed from the page. He said that the Court had "largely signed on to the so-called homosexual agenda," and contrasted the Court with the good people of America, who "do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." And perhaps most notably, Scalia lamented that under the rationale the Court's majority was using, the government wouldn't be able to prohibit gay people from getting married. To each other!

He was right about that, anyway. But his dissent in today's case invalidating the Defense of Marriage Act is a somewhat different beast. Scalia spends the first 18 pages of his 26-page dissent far from the moral questions that had so animated him before; instead, he confines himself to arguing that the Court shouldn't have decided the case at all. Scalia is apparently deeply concerned that the Court is butting its nose in where the legislature should have the final say (more on that in a moment).

But when he finally gets to discussing the merits of the case, Scalia does not disappoint.

After Supreme Court Ruling, the Long Walk to the Altar Continues

AP Photo/J. Scott Applewhite

Well that's that. After six years of litigation, today the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which prevented the federal government from recognizing same-sex marriages performed in the states, and dismissed the Prop. 8 case on procedural grounds. Because California's governor and attorney general declined to defend the law's constitutionality in court, supporters of the measure took up the task; the Justices found they did not have the proper "standing" to do so. Practically, the decision finding the measure unconstitutional stands, but it applies only to California.

Can We Forgive Alan Chambers?

The leader of the country's largest "ex-gay" organization announces the group is shutting down and that he's sorry. 

AP Photo/Alan Marler

A year ago, I wrote in the pages of the Prospect about the three and a half years I spent in "ex-gay" therapy and about prominent psychiatrist Robert Spitzer's repudiation of his infamous 2001 study claiming that changing one's sexual orientation was possible. One of the most frequent questions I was asked after the article was published was whether I resented my parents for sending me to therapy. If they can forgive me for putting their parenting on display for the world to judge, I answered, I can forgive them for—among their many good decisions—making a big mistake. Parents deserve some slack for taking on the task of raising a human being, along with its central heartbreak: Despite love and the best intentions, you inevitably end up screwing up your kids in some way.

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