In the wake of the Supreme Court's historic decision to strike down the federal Defense of Marriage Act (DOMA), anti-gay activists have run out of excuses to explain their ongoing legal defeats in their fight against marriage equality.
Anti-gay activists have a long history of dreaming up wild excuses to explain away embarrassing losses in court:
This rationalization may have bought anti-gay groups time as their cases worked their way up the judicial ladder, but it won't do much to soften the blow of the Supreme Court's decision in Windsor v. United States.
The lead attorney defending DOMA in the Windsor case was Paul Clement, one of the country's most well-known and successful constitutional lawyers. Clement had been dubbed the "LeBron James of law," and his decision to take up DOMA's defense was celebrated by anti-gay groups across the country.
Focus on the Family celebrated Clement's announcement, calling it "really great news":
Ladies and gentlemen, it just doesn't get any better on a Monday than to hear that the House of Representatives has selected Paul Clement as its outside counsel to take on the defense of DOMA after the President and the Department of Justice's rather spectacular failure to do so.
I'm breathing just a little bit easier today. This is really great news. [emphasis added]
Maggie Gallagher, co-founder of the National Organization for Marriage (NOM), was similarly overjoyed:
Paul Clement is one of the ablest litigators in the country, whose seven years acting as solicitor general is the longest period of continuous service since the 19th century. The solicitor general's job is arguing cases before the U.S. Supreme Court, and Clement has argued more than 50 such cases.
As a friend of mine, himself an able litigator, put it: "He's the best. Boehner could not have made a better choice."
And so, thanks to Boehner, Obama's plan to sabotage DOMA's defense has backfired.
For the first time since Obama became president, we will have a legal eagle in the courtroom defending DOMA who actually wants to win the case. [emphasis added]
And Tony Perkins, president of the Family Research Council, stated that Clement's defense would put the Supreme Court "in the best position" to uphold DOMA:
In the American system, everyone is entitled to have a good lawyer to make the best constitutional arguments. This puts the court in the best position to reach the right result. In the case of DOMA, having very good aggressive lawyers on both sides is what will put the courts in the best position correctly to hold that DOMA is perfectly constitutional. [emphasis added]
Fox News anchor Megyn Kelly challenged Maggie Gallagher, co-founder of the National Organization for Marriage (NOM), over her claim that courts should avoid making controversial decisions about marriage, pointing out that the Supreme Court had previously struck down unjust laws against interracial marriage.
During the March 26 edition of Fox's America Live, Kelly invited Gallagher and former Equality Matters president Richard Socarides on to discuss the Supreme Court's consideration of the constitutionality of California's Proposition 8. When Gallagher asserted that the Court shouldn't override the democratic process when it comes to marriage, Kelly responded by citing that the Supreme Court similarly intervened to invalidate state laws against interracial marriage:
GALLAGHER: For the Supreme Court to brand this view as irrational bigotry akin to racial discrimination would not end the culture wars, it would entrench them, and it would take away something very precious, which is the right of seven million Californians to use the democratic process to make our case to the American people. And so, I certainly think trying that to persuade the American people that the Constitution drafted by our Founding Fathers in 1789 has always required gay marriage is a long stretch and I'm hopeful that the Supreme Court will uphold Prop 8.
KELLY: But before I get back to Richard on that, there was a time in this country in which interracial marriage was not lawful. And the Supreme Court had to step in and say "that's wrong. Under the U.S. Constitution, under the Equal Protection clause, whites can marry blacks and states are not free to tell them otherwise." And those that advocate on behalf of this issue, Maggie, they say this is another, sort of, iteration of that.
Every summer for the past four years, the National Organization for Marriage's (NOM) Ruth Institute has invited college students from across the country to participate in its weekend-long "It Takes A Family To Raise A Village" (ITAF) conference in San Diego, CA. According to NOM, the conference is meant to prepare college students to defend "natural marriage" on their campuses by introducing them to a number of prominent anti-gay speakers and activists.
This year, NOM expanded its ITAF conference to include recent college graduates in their early twenties. Being a 24-year-old gay blogger who has spent the better part of the past two years tracking NOM's anti-gay extremism, I wasn't expecting much when I applied to ITAF's "Emerging Leaders" program in mid-June. I'd spent most of the month publishing blog post after blog post about ITAF's anti-gay "suggested reading" list, its roster of extreme anti-gay speakers, and its ties to a megachurch linked to the "ex-gay" movement. The application didn't require me to disclose my place of employment, but a quick Google search of my name would plainly reveal that I was no friend of NOM. Jennifer Morse, the president of NOM's Ruth Institute, had even specifically responded to a post I'd published about her. I saw my application as more of a joke than anything else.
So when I got a "Congratulations" email at the end of July informing me that I'd been accepted into ITAF, I wasn't sure how to react.
Honestly, part of me was terrified at the idea of having to spend a whole weekend stuck at a NOM event with a group of anti-gay student activists. What if I was discovered? What if someone from NOM recognized me? If I attended, I ran the risk of being exposed - all alone - as an undercover "homosexualist" in a room full of the very people I'd been writing about for months.
I also wasn't keen on the idea of having to pretend to be straight in front of dozens of strangers for four days, as I didn't expect I'd be able to attend a NOM conference as an openly gay man without raising a few eyebrows. I'd been out of the closet for over eight years, and I lived in a city where being gay is as about as common and unremarkable as wearing glasses. I'd grown pretty accustomed to not having to worry about people figuring out my sexual orientation. Having to go back in "the closet," even just for a few days, sounded more like an unpleasant high school flashback than an exciting work opportunity.
Eventually, though, my curiosity got the better of me.
Since its founding in 2007, NOM has loudly proclaimed that its "battle is not with an orientation"; that, despite opposing gay marriage, the organization isn't motivated by animosity towards gay and lesbian people. This distinction - "we're not anti-gay, just anti-gay marriage" - has allowed NOM to differentiate itself from organizations that have been labeled "hate groups" for peddling known falsehoods about LGBT people.
But, I wanted to see it for myself. Attending ITAF would give me an opportunity to find out what NOM was really saying about LGBT people when it wasn't mincing words for mainstream media outlets.
So on Thursday, July 26, armed with little more than my camera phone, a notepad, and a hastily-concocted backstory, I boarded a flight to San Diego to attend what would end up being one of the most disturbing and overtly homophobic experiences of my life.
The majority opinion did not hold that the Constitution requires all states to allow same-sex couples to marry. Instead, the decision held that a law that has no purpose or effect "other than to lessen the status and human dignity of gays and lesbians" violates the Equal Protection Clause of the Constitution.
The majority took great pains to explain the special circumstances in California that led to this decision. In California the state constitution previously allowed same-sex couples to marry. California then enacted a constitutional amendment that stigmatized same-sex couples by taking away the designation of marriage from their relationships, but the state -- by retaining a civil union law -- did not change any substantive legal rights involved.
The right-wing media have decried the Obama administration's decision to stop defending the Defense of Marriage Act, claiming the move is unlawful and "a form of dictatorship." In fact, presidents from Thomas Jefferson to George W. Bush have opted against defending statutes they viewed as unconstitutional.
Earlier this afternoon, the Department of Justice announced that it would no longer defend Section Three of the Defense of Marriage Act, following a review conducted by DOJ and the White House which found that its definition of marriage as a "legal union between one man and one woman" was unconstitutional. On Fox News' America Live, anchor Megyn Kelly reported on the announcement and then turned for reaction to National Organization for Marriage chairman Maggie Gallagher, who attacked President Obama for "an extraordinary unconstitutional measure." Gallagher was the first person from whom Fox News obtained a reaction following the DOJ release.
Gallagher is an anti-gay activist who has claimed that the legalization of same-sex marriage will lead to polygamy and represents the downfall of "American civilization." She has described same-sex marriage as a "lie about human nature" and claimed that "[p]olygamy is not worse than gay marriage, it is better," because "[a]t least polygamy, for all its ugly defects, is an attempt to secure stable mother-father families for children."
Video of the segment below:
"Culture war" isn't a term we hear that often anymore because, well, the crucial center of American politics is sick and tired of the very idea of culture war.
But the concept (first coined by professor James Davison Hunter) still best explains where we are today in US politics -- where the vast center of America is stuck in a tug-of-war between two deeply competing visions of reality.
Cultural power, explains Hunter, is the power to "name reality." Culture is mostly created in urban centers and spread to the periphery. E.g.: Harvard Law School decides that gay marriage is a basic human right, which spreads through judges until it runs smack up into the one source of cultural power in America that isn't controlled by urban centers -- the American people.
We are by far the most democratic system on earth. A certain form of Euro-liberalism may capture the universities, reinforced by its dominant control over government money, influencing the media and Hollywood.
In Europe, the political leaders respond to this complex of cultural power mostly by submission to it -- it's easier. And then voters are deprived of choice. Where elite leaders cooperate to end the culture war by giving in, voters do not get to choose between competing visions.
But in America, leaders can spring up from nowhere, develop their own financial base, form a counter-academy through think tanks and a counter-media with talk radio and Fox News, and finally swarm into primaries to unseat party bosses who try to be an echo, not a choice.
Maggie Gallagher repeated the dubious claim that the Democratic Party "threaten[ed] [New Hampshire Democratic] state senators" if they did not support the state's same-sex marriage bill, without noting that the state's Democratic Party chairman has disputed the allegation.