Gay Rites

While civil libertarians celebrated the recent decision by the Vermont Supreme Court recognizing the rights of gay and lesbian couples to wed or enter domestic partnerships, Republican presidential candidate Gary Bauer suggested that gay marriages were more immoral than murder. "I think what the Vermont Supreme Court did last week was in some ways worse than terrorism," Bauer declared.

Giving him the benefit of the doubt, I regard his statement as political hyperbole. I assume that, like most relatively sane people, even Gary Bauer would rather encounter two gay males holding hands than one terrorist. I assume that he doesn't really prefer the slaugh-ter of innocents to the legalization of gay relationships, but perhaps this is wishful thinking.

Gay people have gained unprecedented rights and respect in recent decades, but homophobia continues to fuel moral reform movements on the right and exerts influence center court. Sometimes our obsession with other people's sexual orientations seems second only to our obsession with race. It's baffling. I understand gossip and prurience, but not moral outrage or even concern about the sexual preferences of consenting adults. Homophobia can't simply be attributed to religion (there is considerable support for gay rights in some religious communities), although it is often cloaked in religious rhetoric. But fear and loathing of gay people does seem as visceral as love of God, and equally tenacious.

It is hardly a function of ignorance and infects elites as well as plebeians. Supreme Court Justice Antonin Scalia has implicitly compared homosexuality to murder, suggesting that voters might be justified in passing laws that express their "animus" toward homosexuals. Scalia made these remarks in a vituperative dissent in Romer v. Evans. In Romer, the Court struck down an amendment to the Colorado state constitution that prohibited cities and towns from enacting gay-rights ordinances; the majority held that the amendment was a discriminatory expression of animus toward one group of citizens. "Of course, it is our moral heritage that one should not hate any human being or class of human beings," Scalia conceded. "But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could even exhibit 'animus' toward such conduct. Surely that is the only sort of 'animus' at issue here: moral disapproval of homosexual conduct... . "

People opposed to gay rights typically characterize antigay laws as prohibitions on conduct, which obscures the frequent treatment of homosexuality as a sort of status crime: When people are fired or not hired because they are gay, they're being punished for who they are, not what they've done. While there is no bright line between identity and behavior (as the military's disastrous "don't ask, don't tell" policy has shown), there is a blurry one, which homophobes consistently ignore.

Consider the ravings of syndicated radio host and pop psychologist Dr. Laura. She views homosexuality simply as "sexual deviancy," associated with pedophilia, bestiality, and sadomasochism (not to mention crossdressing), which she says gay-rights activists are conspiring to normalize, with the aid of big government: "Again, a conspiracy... . I'm the X-Files queen at this point... . When you're trying to establish a world order [in which] deviancy becomes the norm and everything is okay and there should be no judgment, the first thing you have to do is either remove kids from their homes to brainwash them, like if there were government day care centers or mandatory preschools from the age of three."

Psychologists who claim that same-sex couples can raise healthy children are also part of the conspiracy that Dr. Laura perceives: The "stupid trash that comes out of the psychological community that says dad's not necessary [is] a plot for two women to have kids and justify it. If two lesbians can adopt or make children after the psychological community says that fathers are not relevant, then there's a lot of power, right? Believe me, all the points connect to one place."

It's not that she lacks compassion, the good doctor stresses: "I don't want anybody hurt. I don't want anybody killed." It's just that, for her, gay rights are limited to the right to be cured of gayness: "I would like homosexuals to have the ability to get reparative therapy so they could live, quote, 'normal' lives and have the benefit of heterosexual relationships."

Dr. Laura is an easy target, I admit, and it's tempting to dismiss her as the lunatic fringe (except that she is a nationally known, best-selling author, whose radio rants reach more than 14 million people each week). A more sobering example of homophobia is mainstream and liberal opposition to gay marriage. The federal Defense of Marriage Act (DOMA), which greatly limited the effect of gay marriages legalized by any state, was approved in 1996, an election year, by overwhelming majorities in both houses. Supporters of this bill, originally championed by twice-divorced Georgia Congressman Bob Barr, included such liberal stalwarts in the Senate as Paul Wellstone, Barbara Mikulski, Pat Leahy, and Frank Lautenberg as well as Bill Bradley, who is now courting gay voters.

It's worth noting that all of these senators supported a federal law to prohibit employment discrimination against gay men and women, which very nearly passed in the Senate the same year. (The Employment Non-Discrimination Act, ENDA, was rejected by a 50-to-49 vote.) But ENDA did not involve sex, children, and the putatively sacred institution of marriage. It's hard to know how many votes in favor of DOMA were cast merely for expediency; but talking to legislators, you get the sense that opposition to gay marriage tends to be sincere, if inarticulate, even among supporters of equal employment laws for gays. Often, people can't quite explain why marriage should be limited to heterosexual couples; same-sex marriage just doesn't "feel right" to them.

How do you argue with a feeling? That's the challenge facing gay-rights activists. It's a challenge that has confronted all modern civil rights movements. For most of our history, traditional divisions of labor between men and women "felt right" to a great many Americans (and they continue feeling right to some). Racial segregation was once the law of the land partly because it "felt right" to white majorities. You can't generally defeat feelings like this with argument or logic. But, as Martin Luther King, Jr., demonstrated, you can successfully arouse competing feelings--passions for fairness, individual rights, and equal justice.

One of the legacies of the civil rights era has been the stigmatization of workplace discrimination, which apparently no longer "feels right" to a majority of Americans. According to a 1997 Newsweek poll, 84 percent of us profess to support equal employment rights for gay people. It is, however, difficult to gauge the depth of this reported opposition to discrimination, which has yet to be widely translated into law. In 39 states, you can be dismissed from your job because of your sexual orientation.

Lacking civil rights under state law, you're not likely to find much protection in federal court: In a 1997 case, Shahar v. Bowers, the U.S. Court of Appeals for the 11th Circuit held that a lawyer in the Georgia attorney general's office could be fired because she was a lesbian.

The Shahar case is notable mostly for the hypocrisy it endorses. Former Georgia Attorney General Mike Bowers fired Deputy Robin Shahar when he learned she was about to have a commitment ceremony with her partner. Bowers successfully argued that employing an openly lesbian attorney would compromise his ability to enforce antisodomy laws and address other "controversial" matters involving gay rights. (Even though the commitment ceremony was religious, the court found that Shahar's firing did not violate her First Amendment rights.) But a few days after the 11th Circuit's decision was announced, Bowers (involved in an ultimately unsuccessful gubernatorial race) admitted that he had been cheating on his wife for years, with an employee in the Department of Law. So much for defending marriage and the purity of the AG's office.

Shahar went back to the 11th Circuit Court seeking a rehearing, pointing out that adultery, like sodomy, was prohibited by Georgia's penal law, but the court was unmoved by revelations about the attorney general's conduct. He didn't fire Shahar because of her sexual conduct, the court noted, pouncing on a questionable and highly irrelevant distinction; he fired her because she got married.

Over 30 years ago, in 1967, the Supreme Court struck down laws against interracial marrying, but only two years ago, it declined to review Shahar's case. In 1986 the Court upheld Georgia's antisodomy law in a notorious case that involved the arrest of a gay male engaged in consensual sex with another adult in his own bedroom. In that case, Bowers v. Hardwick, the Court indicated that adult homosexuals could be arrested for sodomy, in their own homes, partly because they weren't married. The Court observed that its previous decisions recognizing rights of sexual privacy all involved family, procreation, or marriage. In fact, Georgia Attorney General Bowers conceded that the antisodomy law could not be applied to married couples. (Presumably, it could have been applied to adulterers.)

What is the lesson of these cases for gay people? You can be fired if you get married and arrested if you don't. Marriage, under law, matters to gay couples for the same practical and emotional reasons it matters to many heterosexuals, but in some ways, given the discrimination gays still suffer, legalized gay marriages probably matter more.

It would be hyperbole to denounce the denial of basic civil rights and liberties to gay people as legal terrorism. But it is another instance of gratuitous government cruelty--supported by many citizens. Whether or not it's unconstitutional, somehow it just doesn't feel right.