Michiganers May Marry

Another day, another state marriage ban on same-sex marriage falls.  This time, the case, DeBoer v. Snyder, from Michigan.  The legal portion of the opinion is not particularly groundbreaking albeit emotionally compelling.  Judge Bernard Friedman (a Reagan appointee, not that it matters) struck down the law based on a rational basis review under the Equal Protection Clause.  Other courts have been more groundbreaking legally or have interpreted United States v. Windsor more expansively, but Judge Friedman’s opinion is just as important, although for a completely different reason.

Until now, every post-Windsor victory has come via summary judgment, or in the case of Texas, preliminary injunction.  This means that none of those cases has gone to trial.  DeBoer however, did go to trial, and the reason for that is because unlike the other cases, DeBoer actually predates the Supreme Court’s Windsor decision.  Originally DeBoer was about adoption rights.  The lesbian plaintiffs–who are a couple–could not jointly adopt their three children because Michigan law allows only married couples to jointly adopt, and same-sex couples cannot marry under the Michigan constitution.  The plaintiffs, when they initially went to court, were concerned only about adoption not marriage.  Judge Friedman concluded that the plaintiffs were making the wrong argument.  He offered the plaintiffs the chance to amend their complaint to challenge the state’s marriage ban, which they did.  Michigan filed to dismiss the complaint, and Judge Friedman put the case on hold until after the Supreme Court handed down Windsor.

Following Windsor, Judge Friedman concluded that he could not just grant summary judgment to either side.  Therefore, he ordered a trial to be fast tracked.  After this decision, federal courts in Utah, Oklahoma, Virginia, Texas, Kentucky, and Ohio all struck down state marriage bans in part or in total.  I suspect (but cannot prove) that had the summary judgment motions in DeBoer been considered after other post-Windsor decisions, Judge Friedman would have also issued summary judgment.  Judges are conservative creatures by nature, and when there is no precedent (like, for example, four or five other federal judges striking down marriage bans on preliminary motions), they are more likely to act methodically.  In this case, “methodically” meant a full trial in which both sides brought in expert witnesses.

What makes the Michigan case so important however, is the trial itself.  Trials are slow, frustrating, and boring.  Yet, now when these cases finally reach the Supreme Court there will be a record of a neutral arbiter hearing the actual evidence and deciding accordingly.  Appellate courts hear the law, but the fact finder (usually the jury, but in this case the trial judge) hears the facts, which the appellate court almost never touches.  In this case, Michigan’s entire argument was based around a belief that marriage should be limited to heterosexual couples because children do better in homes with a mother and a father.  Judge Friedman found the evidence presented at trial did not support this argument.  Ergo, Michigan had no legitimate reason to ban same-sex marriage (the test for rational basis review).  While an appellate court may say that Judge Friedman somehow misapplied the law, that court will almost certainly not dispute his findings.  In other words, no future opinion in this case will look at the record and conclude that heterosexual couples make better parents.  Which means that Michigan’s central argument will not hold water.

~*~*~*~*~*~*~*~*~*~.

DeBoer was not the first trial in which a state constitutional amendment was adjudicated (and struck down).  The Prop 8 case also went to trial, although because of its procedural issues, the Supreme Court never addressed the substance of the case.  That will not happen here; Michigan will fight until the end.

Back when Prop 8 was being litigated, supporters of same-sex marriage had mounds of evidence on their side whereas opponents were caught pretty much flat-footed.  Their expert witnesses were terrible on the stand, and for good reason; few of them were anything remotely like experts.  None of them held up under David Bois’s ruthless cross-examination.  One of opponents’ witnesses, David Blakenhorn, has even since reversed his position and now supports marriage equality.

Following their humiliation in California, right-wing institutes, most prominently the Heritage Foundation, commissioned a series of studies in which data was manipulated so as to appear that children who grow up in same-sex households suffer as compared to their peers.  Unsurprisingly, the authors of these studies had a not-very-hidden religious and conservative agenda.  The most infamous of these studies was authored by University of Texas sociologist (and arch-Catholic) Mark Regnerus.  His study, the New Family Structures Study (“NFSS”), was designed with litigation (specifically Supreme Court litigation) as the ultimate goal.  Almost from the moment the NFSS was published, it was attacked for its faulty methodology and disingenuous conclusions.  Regnerus’s own university condemned his study (and did so again on the eve of his testimony in Michigan).  The journal that published the NFSS commissioned an internal audit following the outcry and concluded that the study should not have been published at all.  Nevertheless, equality opponents trumpeted the NFSS and groomed Regnerus for trial.  (The same criticism is true about all the studies from all the state’s expert witnesses, and Judge Friedman dismissed them all accordingly.)

At trial, Regnerus and all of the other state’s experts folded under the intense questioning of ACLU attorney Leslie Cooper.  Regnerus in particular was absolutely humiliated on the stand.  Nathaniel Frank wrote a great summation of how Cooper tore apart Regnerus.  For my own part, from following the trial and reading the background, I suspected that this trial could only come out in favor of the lesbian plaintiffs.  Therefore, I was–for the first time–less interested in the law than in the facts of the case, which I usually skip altogether.  In particular, I eagerly awaited Judge Friedman’s take on Regnerus and his study.

I was not disappointed.  Judge Friedman did not just disregard the NFSS, he (there is only one to say this) tore Mark Regnerus a new asshole.  I highly recommend the entire opinion, but in particular the section on Regnerus is pure gold and must be highlighted.

The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.”  In the funder’s view, “the future of the institution of marriage at this moment is very uncertain” and “proper research” was needed to counter the many studies showing no differences in child outcomes.  The funder also stated that “this is a project where time is of the essence.”  Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, and Windsor v. United States, [ed: these are the trial court decisions, not the Supreme Court decisions] were threatening the funder’s concept of “the institution of marriage.”

While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study “a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements” (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a “romantic relationship with someone of the same sex” for any length of time. Whatever Regnerus may have found in this “study,” he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned [American Psychological Association] position statement.

DeBoer v. Snyder, Slip Opinion, pages 13-14.  (Citations omitted, but the scare quotes around “study” are directly from the opinion.)  Judge Friedman flat-out called Regnerus a liar and a hack, which is a strong accusation for a judicial opinion, especially one of such import.  Regnerus’s reputation was weak before, but now it is in complete tatters.  In the legal world, he is persona non grata.

The reason DeBoer is so important is that this trial highlighted the best arguments the anti-equality forces could muster, and now they have run out of time.  Marriage equality had previously won on the law; now it has indisputably won on the facts too.  Full marriage equality is a matter of when not if.  And as a happy coda, Judge Friedman did not stay his decision.  As of Saturday March 22, 2014, the day after the decision, same-sex marriage comes to Michigan as four counties have announced they will start issuing licenses (until a stay is inevitably issued).

[Update: The Sixth Circuit issued a stay Saturday afternoon after 300 couples married.]

Finally, the plaintiffs reading the decision:

Lowder Strikes Again

This time it’s not about Looking, but rather the negative critical appraisal of Dallas Buyers Club.  I have not seen DBC, so I cannot and will not speak to the merits of the movie.  This post is solely about J. Bryan Lowder’s take on the movie’s critics.  Having read his latest diatribe, I feel like Lowder ripped off the thesis of my post about Looking.  (Not that I believe he reads this blog or has read that post.)

This is how he ends his screed:

And indeed, preferences are what we’re really talking about when we analyze the LGBTQ-related criticisms of DBC—preferences about who can tell certain stories, preferences for what makes a piece of art “count,” preferences for how certain types of people should look and act. My preference? For critics to stop pretending that these judgments are ideologically neutral or ethically self-evident, because they aren’t, and because the vision for queer art they suggest is cramped, boring, and exclusive. If that’s “progress,” I’d rather hang back here with Rayon.

Everything he attacks about the critics of Dallas Buyers Club is what he attacked about Looking.  The hypocrisy and lack of self-awareness is absolutely stunning.

Breaking News: Texas Messed With

Today, yet another federal judge struck down yet another state marriage ban.  Again, the judge relied on United States v. Windsor, which is truly the gift that keeps on giving.  This time the state is Texas.  Texas is not necessarily the worst state in the country (that dubious honor perpetually belongs to Mississippi), but, Austin excluded, Texas has a pretty bad reputation, especially under the ever-growing Tea Party influence.  Unfortunately, Texas is the second most populous state in the country and is vitally important to the national economy, so as much as some of us may wish Mexico would take it back, that just ain’t gonna happen.

Since Windsor, marriage bans in full or in part have fallen in states with particularly heinous records on gay rights: Utah, Oklahoma, Virginia, Kentucky, and now Texas.  Texas was one of the few states that still enforced sodomy laws, and was the opposition party in Lawrence v. Texas, the Supreme Court case which struck down those laws.  The decision out of Texas today is not particularly groundbreaking legally–the ban was struck down through both a rational basis review under the Equal Protection Clause and a strict scrutiny review of the Due Process Clause–but that is only because at this point in time (post-Windsor) such an expansive decision is legally conservative.  This decision will be appealed to the very conservative 5th Circuit, and that will be the most interesting decision yet: either the most conservative court in the country will buck the heretofore unanimous trend and find in favor of a state ban or it will acknowledge that Windsor effectively prohibits such bans.

However the 5th Circuit rules, these cases are headed back to the Supreme Court–and sooner rather than later.  Within a matter of months, there will be decisions out of the 4th, 5th, 6th, 9th, and 10th Circuits.  Can the others be far behind (excluding the 1st and 2nd in which all the states are marriage equality states)?   My question is not about when the Supreme Court takes up the issue, because the answer is obviously next term.  My question is whether the Supreme Court will review just one of those cases (a la Windsor) or combine all of the pending cases into a days-long super-case like Brown v. Board of Education.

Stay tuned.

Looking For Looking

Let’s get the obvious out of the way: no one looks good with a mustache.  I have no idea what they were thinking in the 1970′s, but I assume it had something to do with drugs.  Mustaches make their wearers look like pedophiles, ethnic stereotypes, or in the most generous circumstances, kindly uncles.  There is nothing sexy about the mustache.

On the new HBO show Looking, Murray Bartlett plays Dom, a 39-year-old waiter entering a mid-life crisis.  Bartlett is an absolutely gorgeous man (do an image search for him; I’ll wait), yet for weeks, I did not realize how gorgeous because Dom sports a mustache.  Nor I did not realize that Bartlett played (the small but important role of) DK on Farscape, a show that I love.  I blame the mustache.

The mustache is one of only two issues I have with Looking.  My second issue is that there are only eight episodes, and I want more–all the more urgently as Looking has low ratings, and HBO has not yet renewed it.

Looking, based off of creator Michael Lannan’s short film Lorimer, centers around a group of gay friends in San Francisco.  Andrew Haigh, a writer, director, and co-executive producer on the show, had previously come to prominence with his film Weekend, which told the story of two gay men in Nottingham, England who hook up on a Friday night and spend the weekend together.  As Weekend is one of only a few truly great gay-themed movies, there was much anticipation about Looking.  Gay-centered television series are rare, and fewer still of those have been worth watching.  As such, expectations were heightened to unrealistic levels, especially for a show as subtle as Looking.  Unsurprisingly, the show has been trashed by many of the loudest gay voices in the room despite general critical approval.

~*~*~*~*~*~*~*~

Ever since Lance Loud appeared on An American Family in the early 1970′s, gay men have had some kind of television presence.  In the United States this presence has been decidedly mixed, especially in contrast to the British.  The brightest star of gay television, Queer as Folk, was a terrific British show before it became a terrible American one.  The original Tales of the City miniseries was a Channel 4 production.  Showtime and Channel 4 co-produced the mediocre-but-watchable More Tales of the City, and Showtime alone produced the unwatchable Further Tales of the City.*  The problem with American gay-themed television (the discussion in this essay is specific to gay men rather than the full LGBT spectrum) is that shows try to be important and meaningful rather than good.  The two most prominent examples are Will & Grace (W&G) and the American Queer as Folk (QAF-A).

W&G was bitchy, campy, stridently pro-gay in message, reliant on exaggerated stereotypes, and startlingly sterile.  The reason for the latter, we were told, was that intimate physical contact between two men might irreversibly alienate those little, old lady viewers in Kansas and Nebraska.  Even though Will (the A-gay) and Jack (the camp queen) were virtual eunuchs, they were on network television (NBC) and were therefore changing hearts and minds.  This self-congratulatory canard always irritated me, never more so than when it was repeated by Joe Biden in 2012.  At best, W&G was a step sideways not forwards.  Yes, there were gay characters on television, but was it truly a net positive when the show was a gay Amos ‘n’ Andy?

In one important way, QAF-A corrected the sins of W&G.  Because it was on Showtime rather than network television, there was not only kissing between two men, but also copious, graphic, soft-core, man-on-man sex featuring the occasional, visible penis.  Forget the little old ladies in Kansas and Nebraska; QAF-A’s intended audience was gay men (and younger heterosexual women).  The characters of QAF-A were not any better developed than the archetypes–or stereotypes–of W&G; there were just more of them.  There was the (handsome) central character, unashamedly sexual and irresistible to all; the (handsome) geek best friend; the (handsome) newly-out kid; the (handsome) camp queen; the (handsome) ugly, self-conscious guy; and the older guy with AIDS–who died and was replaced by the (handsome) younger guy with HIV.

Although, QAF-A was acutely aware of the present,** in most meaningful ways the show’s outlook was a relic of an earlier era, specifically the 1980′s.  Where W&G revolved around a gay/straight friendship, QAF-A was tribal.  Despite the presence of supportive straight characters (such as the overbearing, fag hag mother), the heterosexual world of QAF-A existed to relentlessly oppress the gay community.  While it is true that QAF-A-era America was not nearly as good for gay people as it is now (DOMA and DADT were still in force, no state had marriage equality until late in the show’s run, George W. Bush was President), the us vs. them mentality of the show was akin to the anger of early AIDS activism and the street theater of ACT-UP.

~*~*~*~*~*~*~*~

Given that the there were varied and strong opinions about W&G and QAF-A, it should come as no surprise that there are varied and strong opinions about Looking.  The most complex and sustained criticism of Looking is that the show is boring.  One hears this from many corners, but the loudest voices have been at Slate, specifically from the gay men at the Outward blog, who enjoy taking potshots at the show (some sillier than others).  This “boring” complaint however, needs to be unpacked.  Looking is indeed slow and deliberately paced, which I enjoy; others might not.  But the cries of boring from Slate are disingenuous; their true complaint is not about Looking‘s artistic merits but rather an anger that they do not see themselves reflected in the show.

Before addressing this anger, I want to defend the show’s stylistic choices.  Looking is heavily influenced by Weekend, which in turn is indebted to the Richard Linklater masterpieces Before Sunrise and Before Sunset, two movies which are very slow, very deliberate, and very dialogue-heavy.  The movies may not be for everyone, but the boy-meets-girl love story is still universal.  Weekend changed boy-meets-girl to boy-meets-boy but proved that a movie with a gay love story at its center can also be universal.

Looking too strives for the universality of its predecessors.  (The show makes its Before Sunrise and Weekend connections explicit in its fifth episode “Looking for the Future.”)  Patrick, Agustin, and Dom are gay just as Jesse and Celine are straight, but that does not mean only gays can enjoy Looking or only heterosexuals can enjoy Before SunriseLooking aggravates its critics because it lacks fidelity to the tropes found in other gay television shows such as the closet, coming out, camp, marriage equality, AIDS, politics, and homophobia, even as some of these topics were addressed in “Looking for the Future.”

It is precisely because Looking’s focus lies elsewhere that the gays at Slate dislike it.  Take for example Tyler Lopez, who wrote that, “Looking somehow eschews any acknowledgement of advances in LGBTQ equality, presenting San Francisco as a dreary post-DOMA dystopia where gay men worry more about foreskins than politics.”  One might ask what exactly is so dystopian or dreary about gay men living openly, honestly, and untroubled as gay men?  Or why discussions related to sex and love, as opposed to politics, are frivolous?  Does Lopez seriously believe there is more of an obligation for a show to be didactic than to strive to be a work of quality?  Finally, what exactly is so wrong with a Virtually Normal universe in which gay people have successfully assimilated into society?

Assimilation is, of course, the looming yet unspoken fear lurking behind the “boring” complaints.  Distaste for assimilation lies between every line of the most infamous hit piece on Looking, Bryan Lowder’s caustic review on Slate.  Undeniably, Lowder is very well-versed in queer culture, a rarity these days, even among gay writers.  He also has a fine appreciation for camp, so much so that he wrote a sixteen part treatise on the subject, in which he incisively tore apart what had been the seminal work on the subject, Susan Sontag’s “Notes on ‘Camp.’”

Lowder, perhaps as the defender of camp culture, takes it upon himself to play the contrarian to the overarching narrative of gay assimilation.  He has therefore written critically about what the LGBT community embraces, for example Tom Daley and Jason Collins, same-sex marriage (multiple times), the boycott of Barilla pasta, Steve Grand, and (although I cannot find it), Weekend.  Given this history, it should come as no surprise that he dislikes Looking.  That, of course, is his right, but I find his reasons for disliking the show more interesting because it says less about Looking and more about the seismic changes to gay culture–changes Lowder clearly resents.

Lowder begins his review with a complaint on the artistic merits of the show: “Looking is so boring, so utterly flat in terms of narrative or characterization, so in need of occasional pauses in which to perform a few jumping jacks to bring one’s heart rate up to resting, that I would opt out entirely if we gay men—or at least gay male culture critics—weren’t contractually obliged to watch.”  Lowder is no doubt trying to be clever; perhaps it is his attempt to achieve that perfect queeny snap.  His cleverness fails him however; his barb was uninspired, and he himself acknowledges that his real problem with Looking “does not stem from aesthetic disagreements, at least not entirely.”

What really bothers Lowder is his belief that Looking is “a show that amounts to a lightly dramatized version of a press release originally meant for straights.”  Lowder continues that, “the show eschews elements that might be seen as artful or entertaining and instead depends on the peculiar idea that gay audiences should find ‘joy’ in watching gay characters move from one (maybe slightly stressful) quotidian situation to the next.”  Lowder dismisses these so-called “quotidian situations,” by saying:

All these issues have been openly discussed within the community for decades now, with a level of nuance and intelligence that, frankly, seems hopelessly beyond the kind of grown gay men who, as we see in upcoming episodes, have nervous breakdowns about foreskin or titter like teenagers at an institution as venerable as the Folsom Street Fair.

His conclusion is that, “[i]n attempting to escape the dreaded ‘stereotype,’ Looking has run headlong into something worse—a cynical tokenism, a gay minstrelsy of another kind.”  In Lowder’s view, the characters on Looking are sops to a straight world (and a gay one) that refuses to accept gay men who do not ‘act straight’.  Previous generations of gay activists protested stereotypes such as the self-loathing queens of Boys in the Band, the BDSM leather serial killer of Cruising, the hedonists of Queer as Folk (American and British), and, most dreaded of all, the effeminate, camp sissy who found his widest audience as W&G’s Jack.***  Lowder, an opponent of gay assimilation, upends those old activists; he rejects the ‘straight-acting gay’ by tapping into the activists’ same primal fear: what will straight people think of us?

Yes, straight critics and viewers seeking liberal cred will find an easy tool here; Looking is, after all, gay without any of the hard parts (dick included), gay that’s polite and comfortable and maybe a little titillating but definitely not all up in your face about it. And in that, the show may represent the greatest victory to date of those who strive not for the tolerance of queerness in straight society, but for its gradual erasure as we all slide toward some bland cultural mean. Beneath the modern platitudes like love whoever you want and all families are beautiful, there’s a quiet, insidious demand that you blend in as quickly as possible. Don’t harp on the struggles of coming out beyond gay meccas, don’t complain about rampant homophobia and increasing gender policing, don’t lament the ongoing health crisis in your community—that stuff is too old-fashioned, too dramatic. Because some gay people can get married now, we’re past all that. And anyway, it gives your so-called allies a case of the sads.

You see, released in this moment of assimilation, Looking cannot just be a show about a specific circle of gay men; it is also unavoidably a PSA for how the mainstream increasingly expects gayness to look—butch enough, politically apathetic, generally boring.

Whereas previously, generations of gay men feared that straight people would reject us for thinking we are different from them, Lowder worries that straight people will reject us after realizing we are different.†  Lowder does not actually think Looking is boring; he thinks it is dangerous because it gives straight people a false sense of security.  In effect, Lowder inverts the assimilationists’ old argument and uses it against them.

Ironically, in making his argument Lowder proves to be as judgmental toward assimilated gays as he believes they are toward his beloved camp culture.  Lowder rejects out-of-hand as unworthy and oppressive any portrayal of gay life that is not a stereotype, particularly the queen who has “already sashayed on over to the isolation of Logo.”  He never entertains the possibility that there exists gay men who are like the characters on Looking and that they should be able to see an honest portrayal of themselves.  No, they are a fiction invented to appease the straight world.

~*~*~*~*~*~*~*~

Others have taken also issue with Lowder’s criticism of Looking, but I have not yet seen anyone examine the culture clash fueling his vituperative attitude toward the show and gay assimilation.  Without engaging this background, any response to Lowder is only half complete.

Lowder, though in his mid-20′s, is a throwback to an earlier era of queer men whose culture was almost exclusively camp.  Perhaps the one thing that Lowder and Sontag agree on is that camp culture is largely the domain of gay men.  These are the gay men who worshiped Judy and Liza; who quote All About EveWhatever Happened to Baby Jane? and Mommie Dearest at length; who says things like, “Mary, please!” or “Get her!” to and about other gay men; and who will ensure that once the parade finally passes by Madonna, she–unlike Norma Desmond–will still have an audience to wave to.

What Lowder refuses to recognize–even if the insinuation is the eight hundred pound, pink gorilla in his queer culture think pieces–is that his beloved camp is the culture of oppression.  Camp served as a means of communication and identity for gay men in bad times, which was most times.  That is why much of camp is about the covert, the unintended, and the subversive.  Yet oppression cannot always be at the center of one’s communal identity, especially in the face of acceptance.  Camp is repellant to many gay men because of its inextricable association with the bad, old days.  For these men, camp is something to escape not embrace.

Lowder’s first essay in his series on camp is titled “Camp is not dead.  It’s alive, well, and here to stay.”  That Lowder even has to defend camp’s existence is a clue that his opponents have been largely successful in shunting it to the side.  Of course Lowder is correct; camp is not dead because concepts cannot be killed.  Nevertheless, the conception of camp has been altered by assimilation and mainstream acceptance, and now the gay communal perception of camp has shifted from a positive to a negative.  A queer culture that previously had no alternatives except camp or closet is being outnumbered by a new majority with many alternatives.  Looking is self-consciously not camp, which is why it is both threatening and horrifying to Lowder.  He is fighting the rearguard in the battle against assimilation, and it is a losing battle even if he cannot admit it outright.

The marginalization of camp culture is tragic.  Much great art in modern history is a product of or bettered by camp.  Camp is also a lot of fun, which is something assimilationists refuse to recognize.  Marginalization however, is inevitable–even natural–for two related reasons: (1) the expansion of the visible gay community; and (2) the rise of a new generation of gay men.  Due to expansion, the gay community has become so multifaceted in recent decades, that the monolithic gay community has been shown up for the myth that it is.  In earlier times, camp had largely, but not exclusively, been the domain of an affluent, educated, urban, urbane, white, gay, male culture.  That was the dominant gay male culture simply because if such men were not out exactly–although many were–they lived in glass closets.  Camp was the culture of those who could not or would not hide and who suffered for it.  Therefore, this practically homogenous gay community was “the gay community” simply because they were visible.  As it is now easier to be openly gay in much of the country and in many more walks of life, a larger number and percentage of out gay men both within and outside of that demographic have the luxury of rejecting camp.

The second reason why camp culture is fading is due to generational replacement.  In gay life, as in the world at large, each generation rejects what the previous one held dear.  Take, for example, Judy Garland, the quintessential gay icon.  On Towleroad.com, the question was recently asked about whether Judy still matters, and the animosity aimed at her in the comments section was stunning even for Towleroad.  For older generations of “Friends of Dorothy,” Garland was a figure of enormous importance.  Her career in general and “Over the Rainbow” specifically were at the very heart of gay culture, never mind camp.  The are rumors that the rainbow flag, the symbol of the LGBT rights movement, was inspired by “Over the Rainbow,” and of course, the Stonewall Riots began the night of Garland’s burial.

Yet, a large portion of at least two generations of gay men either know little about Garland or reject her entirely.  It is not hard to explain; whereas Madonna, Cher, Lady Gaga, Ke$ha, Katy Perry, etc. court gay fans, Garland rarely (if ever) acknowledged hers.  Garland’s lack of acknowledgment is important insofar as it starkly contrasts to the present day where it is okay–even expected–for mainstream superstars to openly love their gay fans and speak out for gay rights.  Ergo, young gays who might have turned to camp to participate in the cultural dialogue reject it because it is old and because they have been embraced by mainstream culture.‡  Lady Gaga’s “Born This Way” may not be a good song, but its positive message to young gay boys is overt.  Compare that to “Over the Rainbow,” an objectively better song that will be covered for decades (at least) after “Born This Way” is long forgotten.  There is no specifically gay message in “Over the Rainbow,” but it spoke to gay men so they infused their own meaning into it.  Young gays do not need to do that anymore, and camp is robbed of its purpose.

Looking is representative of these larger shifts.  For the first time, gay men have a show which reflects how absorbed into the mainstream they have become.  The characters are not classical archetypes; rather their normative experiences are colored by the fact that they are gay.  This is a huge victory for assimilationists, and it is threatening to cultural arbiters like Lowder because their hegemony over the culture is ending.

For my part, if this means good storytelling with interesting characters, then I do not fear the change.  But please, no more mustaches.

Footnotes: 

* The original Tales was superior for many reasons, not the least of which was Marcus D’Amico as Mouse (Michael Tolliver).  The clean-shaven D’Amico was replaced by Paul Hopkins who sported an authentic 1970′s-style porn mustache.  While Hopkins more closely resembled the book description of Mouse (and therefore author Armistead Maupin), again, mustaches never make anyone look good.

** One particular incident stands out for me.  In 2001, Andrew Sullivan was publicly identified as the poster of an anonymous personal ad seeking condomless sex, which, in fairness to Sullivan, clearly acknowledged his HIV+ status.  This was back when we were all still supposed/allowed to hate him for his support of the Republicans and his criticism of the gay left. (This was also before George W. Bush announced that he favored a constitutional amendment banning same-sex marriage, which was Sullivan’s come-to-Jesus moment.)  In January 2002, an episode of QAF-A, subtly titled, “Hypocrisy: Don’t Do It,” introduced a gay, conservative writer who railed against wanton, gay, sex culture, only to be discovered at a bareback party.

***  In the last two decades, the culture has added another stereotype, the ‘straight gay,’ a handsome man who lacks stereotypical gay mannerisms.  Eric McCormack’s Will in W&G and Justin Bartha’s David in the short-lived The New Normal were classic straight gays as are the characters in Looking.  Before Looking this character existed primarily to set up the jokes of his more flamboyant partner thereby making the straight gay the straight man.

† This is a common fear that all minority groups have when they know the majority is watching them, perhaps most famously encapsulated by the phrase, “But is it good for the Jews?”

‡ This is not universal by any means.  Although the new generation of gay men is coming out to far more acceptance than previous ones, that is of little comfort to those individuals who are rejected by their families and communities and who face possible physical or emotional trauma.

Misreading Windsor

Ever since the Supreme Court handed down United States v. Windsor last June, law professors and journalists have pondered over what it meant and criticized the majority’s perceived lack of clarity.  There are two major complaints: (1) ambiguous categorization; and (2) whether Windsor‘s holding relied on principles of federalism or Equal Protection.  

The complaint about ambiguous categorization in Windsor is a fair one.  When courts review laws that discriminate against a certain group, courts do so using a certain framework created by the Supreme Court to determine whether those laws violate the Equal Protection Clause of the Constitution’s 14th Amendment.  In most instances, the government–the defending party in such cases is always a governmental body–is given the benefit of the doubt and the law is upheld.  This is called rational basis review.  But when it comes to certain categories of people, the so-called “suspect classes,” the standard the government needs to meet is much higher, and therefore those laws are generally deemed unconstitutional.  This is called “heightened scrutiny.”  The major categorizations for suspect classes are race, gender, and national origin.

Sexual orientation is not one of the suspect classes that I named.  Despite the outcomes in Windsor and its predecessor cases Lawrence v. Texas and Romer v. Evans, the Supreme Court never explicitly said whether sexual orientation is a suspect class.  The judiciary, federal and state, has taken all sorts of approaches absent Supreme Court guidance.  In recent months, some federal courts, most notably the Court of Appeals for the Ninth Circuit, have looked at Windsor and decided that even though the Supreme Court was not explicit, overall jurisprudence indicates that gays and lesbians are indeed a suspect class.  This is the rationale behind the gay juror case that I addressed in my last post.

As I said above, this continued explicit guidance is a fair criticism.  I do not particularly agree with it, because I think the Ninth Circuit read the tea leaves correctly.  Nevertheless, I can understand the frustration and acknowledge its validity.

The other complaint though, I do not understand at all.  It follows as such: the Windsor majority left the judiciary in limbo because the Court did not distinguish whether Windsor was a federalism decision (i.e. whether the federal government unconstitutionally encroached onto states’ rights) or an Equal Protection decision.  This is important because when state bans on same-sex marriage come before courts, those bans will probably fail under an Equal Protection framework but succeed under a federalism one.  On Slate, Dahlia Lithwick and David S. Cohen co-wrote a column suggesting that Windsor is an Equal Protection decision, not because the Supreme Court wrote it that way, but because subsequent state and federal judges have unanimously interpreted it as such.  By Lithwick and Cohen’s count 18 of 18 court decisions (and 32 of 32 judges) have all come to this conclusion.  That unanimity is essential to Lithwick and Cohen’s thesis.  They posit that judges could have interpreted Windsor as a federalism decision, but because they are universally choosing not to do so, eventually nation-wide marriage equality is inevitable.

I don’t disagree with Lithwick and Cohen’s conclusions; Windsor is indeed an Equal Protection decision, and marriage equality is inevitable.  Where I disagree with them–and all the other law professors and journalists who have spilled much ink on this subject–is this misconception that the Windsor majority was unclear.  Windsor is not an Equal Protection decision because subsequent federal judges read it as such; Windsor is an Equal Protection decision because Windsor is an Equal Protection decision.  This is not a tautology; the Court’s methodology is in the text, and it is not hidden.  The reason that 32 of 32 judges have decided the way they did is because they can read.

I believe that the bulk of the Windsor decision comes not from the majority opinion, but from the dissents.  There are two dissents of note in Windsor, one from Chief Justice John Roberts, and the other from Justice Antonin Scalia.  (There was another one from Justice Samuel Alito, which amounts to, “I’m scared of new things because I don’t understand them, and I don’t like them.”  As such this dissent has been forgotten.)  Scalia’s decision is the more famous of the two, because it was written by Justice Scalia.  When he dissents, he fulminates with puffed up, operatic rage.  In his Windsor dissent, Scalia rewrote the majority opinion to apply to state laws.  Perhaps he thought he was being cutting, but to date at least four federal judges who ruled in favor of equality have cited his dissent as a basis for their opinions–classic benchslap.

While Scalia’s opinion is the more significant dissent, Roberts’s opinion is the reason why everyone is confused.  The Roberts dissent tried to limit the scope of Windsor by painting the majority decision as a federalism decision.  Significantly, none of the other dissenting Justices signed on to the Roberts dissent.  Scalia mocked it.  So why have so many law professors, pundits, and journalists wondered whether Windsor is federalism opinion?  Perhaps it is because John Roberts is a very smart man.  Perhaps it is because no one wants to believe that the Chief Justice of the United States deliberately misinterpreted a judicial opinion in a way unworthy of the cheapest political hack.  Perhaps it is because they need something to debate.  I have no idea, but they are wrong.

While at least three or four federal judges have gone toe-to-toe with Scalia, not even one has engaged the Roberts dissent.  Yes, they have heard federalism arguments, and yes, they all held that Windsor is not about federalism, but they have not refuted Roberts’s dissent so much as ignored it.  There is a reason for that, and it is not just that Roberts, whose opinion lacked hysteria, is a far less easy target to mock.

On pages 18 and 19 of the Windsor slip opinion, Justice Anthony Kennedy addresses the question about whether Windsor is a federalism opinion.  (Highlighting is mine, and I removed citations to previous cases, but otherwise kept the citation intact.)

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. ““‘‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’’””

The Federal Government uses this state-defined class for the opposite purpose——to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy’s language is flowery, as is his wont.  Nevertheless, his meaning is quite clear.  This quoted section is the pivot in the legal reasoning.  Prior to this excerpt, Kennedy wrote in great detail about federalism principles, and how it has historically been the right of the states to define marriage.  Had he stopped there, Windsor would have indeed been a federalism decision.  But in the above excerpt Kennedy writes that it is not principles of federalism that are central to Edie Windsor’s case.  Federalism principles mattered in Windsor only because Congress’ violation of those principles in enacting DOMA signaled a suspicious and insidious ulterior motive.  That something, Kennedy concludes in the next section, was animus toward gays and lesbians, which is unconstitutional under the implied equal protection guarantees of the 5th Amendment.*

Scalia understood all this and would not let it go unchallenged.  He also understood, that if the judicially manufactured equal protection guarantees of the 5th Amendment applies to same-sex couples, then the next logical step is that the actual equal protection guarantees of the 14th Amendment must also apply.  The only possible outcome is for state bans on marriage equality to also fail constitutional scrutiny.  The Windsor majority may not have explicitly stated this, but their inherent message to the federal judiciary was equally loud and clear as Scalia’s overwrought one.  That is why all subsequent decisions have unanimously sided with marriage equality.

Footnotes:  

*  There is no Equal Protection Clause in the 5th Amendment; the Equal Protection Clause is unique to the 14th Amendment.  The 14th Amendment however, applies only to the states and not the federal government, which could have been a source of major embarrassment for a Supreme Court that wanted to combat discrimination.  The most famous use of the manufactured 5th Amendment equal protection guarantees is found in Brown v. Board of Education.  There were actually five cases collectively known as Brown, and one of those cases, Bolling v. Sharpe, came from Washington DC.  As Washington DC is not a state and under federal government control, the 14th Amendment does not apply.  Thus, the Warren Court used the 5th Amendment for the DC case and the 14th Amendment for the state cases .

Marriage Momentum: Valentine’s Edition

Last night, Judge Arenda Wright Allen, a federal district court judge in Virginia, struck down that state’s ban on same-sex marriage.  It was a forceful opinion, finding that such a ban could not withstand scrutiny under the full force of the 14th Amendment’s Due Process Clause, nor a less exacting rational basis review under the Equal Protection Clause.  If you don’t understand this legal jargon, that’s okay.  Just know that the opinion is quite powerful, very pro-marriage equality, and is not outside the legal norm.

Like earlier decisions in Utah and Oklahoma, the one from Virginia is a grant of summary judgment, which means the judge decided that a trial was not necessary.  In fact, the judge had asked the parties if they felt oral argument on the motions was necessary (they did).  The fact that such a long opinion came down so quickly after oral argument suggests that the opinion had been worked out prior to oral arguments.

Witness again the power of United States v. Windsor.  I have said over and over again that this is the most important civil rights case since Brown v. Board of Education.  When Windsor struck down DOMA, the federal government was forced to recognize same-sex marriages.  All sort of federal rights that were previously denied to same-sex couples have been granted.  Also following Windsor, two state high courts, New Jersey and New Mexico, mandated marriage equality in their respective states.  But the real promise of Windsor is what is happening now; the federal judiciary has been unchained.  Prior to Windsor, federal judges would have hesitated to make sweeping rulings about marriage bans.  Even the trial and appellate decisions in Prop 8, the lone marriage case brought before the federal judiciary, were measured.  But post-Windsor, the flood gates have been opened.  The opinions issued have not just been favorable, they have been overwhelmingly forceful.  Moreover, these are not just happening in so-called blue states.

Here is a round-up of all the federal cases that have thus far been decided and which will all probably be ready to go to the Supreme Court in the 2014-2015 term.

1. Utah – A federal judge struck down the marriage ban.

2.  Oklahoma – A federal judge struck down the marriage ban.

3.  Ohio – A federal judge held that the state must recognize a valid same-sex marriage performed in another state for death certificate purposes (and implied that the marriage ban is unconstitutional).

4.  Kentucky – A federal judge held that the state must recognize same-sex marriages validly performed in other states where they is legal (and implied that the marriage ban is unconstitutional.)

5.  Virginia – A federal judge struck down the marriage ban.

6.  The Ninth Circuit – As always, the Court of Appeals for the Ninth Circuit is ahead of the curve.  In a case between two large pharmaceutical companies seemingly unrelated to marriage equality, the Ninth Circuit held that a gay juror cannot be removed by a peremptory challenge on the basis of his sexual orientation (just as one cannot be removed for race or gender).  Although there is nothing in the case about marriage, this is an extremely important decision for the marriage equality movement.  The Ninth Circuit held that sexual orientation is a protected class and thus deserves heightened scrutiny under the Equal Protection Clause of the 14th Amendment.  Which means that any law that discriminates against gay people has a high bar to meet in order to prove its legality.  No marriage ban can meet that standard.  After the gay juror decision, Nevada’s Attorney General (Democrat) and Governor (Republican) withdrew from the defense of their state’s ban.  The Ninth Circuit will hear that case shortly.  When Nevada’s ban falls (and it is a “when” not an “if”), the bans in the other Ninth Circuit states will also have to fall.  By my count that will apply to Montana, Idaho, Arizona, Alaska, and Oregon (if that state’s ban is not already overturned at the ballot box in November).

Which means that at least one, but more likely several, of these cases will be back at the Supreme Court in the next term for the final showdown.

Happy Valentine’s Day!

The Ongoing Saga Of Marriage Equality In Utah

When we last left off, a federal judge named Robert Shelby held that Utah’s ban against same-sex marriage (and same-sex partnerships of any kind) was a violation of the Constitution.  Immediately following the ruling, same-sex couples rushed to get marriage licenses.  That they were able to do this was in part due to the incompetence of the embattled Utah Attorney General’s Office which neglected to properly file for a stay of judgment.  When the AG properly filed for a stay, both Judge Shelby and (on appeal) the Tenth Circuit Court of Appeals refused to grant it.  Shelby’s refusal was not surprising given his earlier ruling, but the denial of stay from the Tenth Circuit was definitely a shock.  First, the Tenth Circuit is one of the more conservative in the country, which is not surprising considering that it has jurisdiction over Utah, Oklahoma, Wyoming, and Kansas.  Second, in denying the stay, the Tenth Circuit effectively played its hand, and let it be known how it planned on ruling.  In such a weighty case, a denial of stay is rare absent an almost overwhelming certainty that one side will win.  (Two comparisons are useful.  The much more liberal Ninth Circuit Court of Appeals stayed the decision in the Prop 8 case pending a decision by the Supreme Court.  Post-Windsor, the New Jersey Supreme Court rejected a stay from the Christie Administration, which led to the Administration dropping its case.)

Utah appealed the stay denial to Justice Sonia Sotomayor, the Circuit Justice for the Tenth Circuit.  She in turn referred the matter to the full Supreme Court which issued a stay.  This is not actually surprising.  The Supreme Court is a very conservative institution.  Not necessarily in the political sense (although it is currently that too), but in that the Justices are terrified of being seen as moving too quickly.  Remember, the Utah case (Kitchen v. Herbert) has not actually been litigated; Judge Shelby granted a motion for summary judgment, and no trial was held.  Had the Supreme Court also denied a stay, it would have sent a message to every trial and appellate judge in the country that bans on marriage equality were effectively dead without even a consideration of the issue.  That is much too fast for the Supreme Court.  (So please calm down, Jeffrey Toobin.)  The stay is written such that it is effective until the Tenth Circuit makes a determination.  The case has already been fast-tracked on that court’s docket.  Expect the issuance of another stay if the Tenth Circuit finds for the same-sex couples.

This is all basically cut and dry.  Very legal and routine.  After this point though, things get a little bit dicey.  In response to the Supreme Court’s stay, the Governor of Utah (the Herbert of Kitchen v. Herbert) told the state not to recognize the over 1300 same-sex marriages that had already taken place.  Although this action pleased homophobic activists like Brian Brown and Tony Perkins, the Governor is completely in the wrong.  The Supreme Court stay stopped the state from issuing any further marriage licenses to same-sex couples, but the Court said nothing about the ones that already took place.  Which, I might add, were performed legally under a decision that has not yet been overturned.  The legality of those marriage may yet be up for debate, but not at this time.  (For a comparison, the same-sex marriages in California that occurred between the In Re Marriage Cases decision and the passage of Prop 8 a few months later were still deemed valid by the California Supreme Court.)

The Tenth Circuit will not look kindly on Utah’s actions–first because the Governor has countermanded a court order, and second, because the Governor has caused an actual harm.  Needless to say, the ACLU has already begun the process of challenging Utah’s refusal to recognize the 1300 legally married same-sex couple.  Expect litigation to be undertaken immediately, as there is no shortage of plaintiffs.  In response to Utah, the Obama Administration announced that it will recognize those 1300 Utahan marriages for all federal purposes (immigration, tax, Social Security, and the like).  This a major, if expected, triumph and it largely offsets much of the damage done by Utah’s state government.  It also sets up a direct challenge for the Supreme Court that will be hard to ignore.  There can be no federalism feint anymore; Kitchen v Herbert is all about the equality of gays and lesbians and the fundamental nature of marriage.