Gay-rights foes try to play the victim

Anti-LGBT groups now claim they’re the ones being bullied

DAVID CRARY  |  Associated Press

NEW YORK — As the gay-rights movement advances, there is increasing evidence of an intriguing role reversal: Today, it is the conservative opponents of that movement who seem eager to depict themselves as victims of intolerance.

To them, the gay-rights lobby has morphed into a relentless bully, pressuring companies and law firms into policy reversals, making it taboo in some circumstances to express opposition to same-sex marriage.

“They’re advocating for a lot of changes in the name of tolerance,” said Jim Campbell, an attorney with the conservative Alliance Defense Fund. “Yet ironically the tolerance is not returned, for people of faith who don’t agree with their agenda.”

Many gay activists, recalling their movement’s past struggles and mindful of remaining bias, consider such protestations by their foes to be hollow and hypocritical.

“They lost the argument on gay people, and now they are losing the argument on marriage,” said lawyer Evan Wolfson, president of the advocacy group Freedom to Marry. “Diversions, scare tactics and this playing the victim are all they have left.”

He added: “There’s been a shift in the moral understanding of people: that exclusion from marriage and anti-gay prejudice is wrong. Positions that wouldn’t have been questioned in the past are now being held up to the light.”

Among the recent incidents prompting some conservatives to complain of intolerance or political bullying:

• Olympic gold medal gymnast Peter Vidmar stepped down as chief of mission for the 2012 U.S. Olympic team in May following controversy over his opposition to gay marriage. Vidmar, a Mormon, had publicly supported Proposition 8, the voter-approved law passed in 2008 that restricted marriage in California to one man and one woman.

• After coming under fire from gay-rights groups in April, the Atlanta-based law firm King & Spalding pulled out of an agreement with Republicans in the U.S. House of Representatives to defend the federal ban on same-sex marriage.

• In New York, state Sen. Ruben Diaz, a Democrat from the Bronx, New York City, contends he has received death threats because he opposes legislation to legalize same-sex marriage. The alleged threats were cited last week by the New York State Catholic Conference, which also opposes gay marriage.

“We are unjustly called ‘haters’ and ‘bigots’ by those who have carefully framed their advocacy strategy,” wrote the conference’s executive director, Richard Barnes. “The entire campaign to enact same-sex marriage is conducted under a banner of acceptance. … Yet behind that banner of tolerance is another campaign — of intimidation, threats and ugliness.”

• Apple Inc. recently withdrew two iPhone apps from its App Store after complaints and petition campaigns by gay-rights supporters.

One app was intended to publicize the Manhattan Declaration, a document signed in 2009 by scores of conservative Christian leaders. It condemns same-sex marriage as immoral and suggests that legalizing it could open the door to recognition of polygamy and sibling incest.

The other app was for Exodus International, a network of ministries which depict homosexuality as a destructive condition that can be overcome through Christian faith.

In both cases, gay activists celebrated the apps’ removals, while the apps’ creators contended their freedom of expression was being unjustly curtailed.

“The gay-rights groups have shown their fangs,” wrote Chuck Colson, the Watergate figure turned born-again Christian who helped launch the Manhattan Declaration. “They want to silence, yes, destroy those who don’t agree with their agenda.”

Exodus International president Alan Chambers, who says he changed his own sexual orientation through religious counseling, said he was alarmed by the aggressive tactics of “savvy gay activists.”

“We have seen individuals, ministries and even private corporations that dare to hold to a biblical worldview on sexuality bullied into a corner,” Chambers wrote in a blog.

However, Wolfson said the Exodus app deserved to be removed. “They were peddling something that’s been repudiated as crackpot quackery.”

The campaign that pressured King & Spalding to withdraw from the Defense of Marriage Act case was criticized by a relatively wide range of commentators and legal experts, not just conservative foes of gay marriage.

“To think it’s a good idea to attack lawyers defending unpopular clients; I don’t have words for how stupid and wrong that is,” said Wendy Kaminer, a lawyer and writer who formerly served on the board of the American Civil Liberties Union.

However, the gay-rights activists involved in pressuring King & Spalding were unapologetic.

“If we made it such that no law firm would defend the indefensible, then good for us,” said Fred Sainz, the Human Rights Campaign’s vice president for communication. “When you have people talking about the fact that it’s no longer politically correct to be anti-equality, it’s a show of progress.”

Sainz said it was important for activists to pick their targets carefully.

“We understand there are goodhearted Americans in the middle who are still struggling with these issues,” he said. “Different activists have different ways of getting to the same end, and some of those are bound to make certain people feel uncomfortable.”

Though same-sex marriage is legal in only five states, it has for the first time gained the support of a majority of Americans, according to a series of recent national opinion polls. For some gay activists, this trend has fueled efforts to make their opponents’ views seem shameful.

“Their beliefs on this issue are very quickly becoming socially disgraceful, much in the way white supremacy is socially disgraceful,” wrote Evan Hurst of the advocacy group Truth Wins Out. “They are certainly entitled to cling to backwoods, uneducated, reality-rejecting views, … but their ‘religious freedom’ doesn’t call for the rest of us to somehow pretend their views aren’t disgusting and hateful.”

However, some gay-rights supporters see the public opinion shift as reason to be more magnanimous.

“The turn we now need to execute will be the hardest maneuver the movement has ever had to make, because it will require us to deliberately leave room for homophobia,” Jonathan Rauch, a writer and guest scholar at the Brookings Institution, wrote recently in The Advocate, a gay-oriented newsmagazine.

“Incidents of rage against ‘haters,’ verbal abuse of opponents, boycotts of small-business owners, absolutist enforcement of anti-discrimination laws: Those and other `zero-tolerance’ tactics play into the ‘homosexual bullies’ narrative,” Rauch wrote. “The other side, in short, is counting on us to hand them the victimhood weapon. Our task is to deny it to them.”

As ideological foes spar over these issues, the American Civil Liberties Union is confronted with a delicate balancing act. Its national gay rights project battles aggressively against anti-gay discrimination, but, as a longtime defender of free speech, the ACLU also is expected to intervene sometimes on behalf of anti-gay expression.

For example, the ACLU pressed a lawsuit on behalf of the fundamentalist Westboro Baptist Church, which has outraged mourning communities by picketing service members’ funerals with crudely worded signs condemning homosexuality. The ACLU said the Missouri state law banning such picketing infringes on religious freedom and free speech.

Some critics, such as Wendy Kaminer, have contended that the ACLU now tilts too much toward espousing gay rights, at the expense of a more vigorous defense of anti-gay free speech.

However, James Esseks, director of the ACLU’s gay rights project, said the U.S. Constitution’s First Amendment protects free speech but comes into play only when a government entity is seen as curtailing speech rights, which did not occur in the Vidmar or King & Spalding cases.

“What we have there is simply the push and pull in public policy discourse … which is sometimes rough and tumble,” Esseks said. “Being stigmatized for expressing unpopular views is part of being in a free society. There’s nothing wrong with that.”

Robert George, a conservative professor of jurisprudence at Princeton University and one of the co-authors of the Manhattan Declaration, shared Esseks’ view on the often sharp-elbowed nature of public debate in America.

“Democratic politics is a messy business and sometimes it’s a contact sport,” said George, a co-founder of the National Organization for Marriage, which campaigns against same-sex marriage. He suggested that those who hold cultural power, in academia, the media and elsewhere, inevitably are going to try to impose their viewpoints.

“The power to intimidate people, to make them fear they’ll be called a bigot or denied opportunities for jobs, only works if people allow themselves to be bullied,” George said. “Conservatives who make themselves out to be victims run the risk of playing into the hands of their opponents, suggesting that their opponents’ cultural power is so vast that there’s no way it can be resisted.”

To professional free-speech advocates, such as Joan Bertin, executive director of the National Coalition Against Censorship, the gay rights vs. free expression cases are fascinating and often difficult.

“It’s very volatile — it requires you to parse the issues very closely,” she said. “I’m of the school of thought that you should know your enemy. You need to know what people are thinking.”

—  John Wright

Texas Republican seeking to intervene in marriage cases

Lamar Smith claims a ‘protectable interest’ in defending DOMA in Massachusetts lawsuits

Lisa Keen  |  Keen News Service lisakeen@mac.com

Claiming that the Obama Department of Justice is not doing enough to defend the federal Defense of Marriage Act, U.S. Rep. Lamar Smith, the Republican who represents Texas’ 21st district, has asked a federal court for permission to serve as an intervenor-defendant in two cases expected to come before the First Circuit U.S. Court of Appeals.

The Alliance Defense Fund announced Tuesday, Oct. 5,  that it had filed motions on behalf of Smith in the U.S. District Court for Boston, where Judge Joseph Tauro had ruled — in two cases — that one part of the federal Defense of Marriage Act is unconstitutional.

The Department of Justice still has until Oct. 12 and Health and Human Services has until Oct. 18 to give the court notice of whether the federal government intends to appeal those decisions.

In its Oct. 5 motions to intervene, the ADF claims the Department of Justice is mounting “no defense at all” for DOMA. The lawsuits in question challenge only DOMA Section 3, the section that limits the interpretation of “marriage” for any federal purpose to heterosexual couples.

“We should be strengthening and protecting marriage, not subjecting it to a hostile takeover through the courts,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund, in a press release. “If the Obama administration won’t defend marriage, we are ready and willing to do so.”

ADF claims the DOJ has failed to raise certain crucial arguments in defense of DOMA. For instance, it argues that DOJ should have noted that the U.S. Supreme Court’s “decision” in the 1972 Baker v. Nelson “was binding precedent that DOMA is constitutional.”

“Under the new administration, which strongly supports DOMA’s repeal, the DOJ traded these winning rationales for anemic arguments never recognized by any court in a challenge to DOMA or a similar state marriage definition,” states the ADF’s motion to intervene.

Actually, the Supreme Court did not issue a “decision” in Baker; it dismissed the appeal of a gay couple who had sought a marriage license in Minnesota.

Dismissing an appeal has more significance than simply refusing to hear the appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case.

There is dispute within legal circles as to whether that dismissal means anything today.

And Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders that brought one of the DOMA lawsuits, said the lawsuits here are not — like Baker — about marriage.

Bonauto also said she wasn’t surprised to learn of ADF’s motion to intervene.

“The ADF tries to intervene in everything,” said Bonauto. “We’re just surprised it took this long.”

Bonauto said her organization would oppose Smith’s motion to intervene “on multiple grounds.”

The motions to intervene will be decided by Judge Tauro sometime during the next few weeks or so. Bonauto said she doesn’t imagine the motions will be granted if the federal government decides to appeal the two cases.
The ADF motion claims that Rep. Smith has a “protectable interest” in the outcome of these lawsuits because, as ranking minority member of the House Judiciary Committee, he has a duty to see that federal laws “are fully defended and that adverse decisions are appealed.”

The motion says Smith asked Attorney General Eric Holder, by letter, on Aug. 9, whether DOJ intends to appeal the DOMA cases. DOJ had not yet made a decision, notes ADF.

“[I]t is difficult to understand to DOJ’s indecision,” says ADF’s brief.

Attorneys for the HHS have until Tuesday, Oct. 12, to file notice that they intend to appeal the decision in the state’s case, Massachusetts v. HHS. DOJ attorneys have until Oct. 18 to file notice of appeal in GLAD’s case, Gill v. Office of Personnel Management. GLAD’s Bonauto said it is common for the appealing party to give the court notice of its appeal in the last couple of days remaining to do so.

Thus, the timing of ADF’s motion could have the political benefit of appearing to prod DOJ and HHS to file notice. But Arthur Leonard, a long-time legal scholar on LGBT cases, says it’s also not unusual for Smith to file the intervenor motion.

“There have been occasions in the past where members of Congress have sought to intervene in order to present what they think would be stronger arguments than the Justice Department is likely to present, especially when the administration that is defending the statute is different from the administration that signed it into law,” said Leonard.

“But,” he added, “to the extent this is about getting particular arguments before the court of appeals, I can’t imagine that an appeal of the DOMA case won’t attract plenty of amicus briefs that would make all the arguments that Rep. Smith would want to make.”

© 2010 Keen News Service

This article appeared in the Dallas Voice print edition October 08, 2010.

—  Kevin Thomas

What does Ken Mehlman have to say about his former boss, anti-gay Texas Rep. Lamar Smith?

Congressman Lamar Smith, R-Texas

If we could ask Ken Mehlman only one question, it might just be something about his one-time boss Lamar Smith.

Mehlman, the formerly anti-gay former RNC chair who recently came out as gay, served as Smith’s legislative director in the 1990s. Smith, meanwhile, seems to be vying for the title of No. 1 homophobe in Congress.

• In August, Smith sponsored a resolution to condemn U.S. District Judge Vaughn Walker’s decision declaring Proposition 8 unconstitutional.

• Also in August, Smith announced plans to introduce federal legislation that would define marriage as between one man and one woman.

• And now, Smith is asking a federal court to allow him to intervene in a case to help defend the Defense of Marriage Act, according to Keen News Service. The Alliance Defense Fund announced Tuesday it had filed motions on behalf of Smith asking to intervene in two cases in which a U.S. district judge in Massachusetts declared DOMA unconstitutional. The ADF argues on behalf of Smith that the Obama administration isn’t doing enough to defend the 1996 law, which some gay-rights activists don’t think the administration should be defending at all.

Interestingly, Smith’s Democratic opponent in November, Lainey Melnick, touts her opposition to DOMA prominently in the issues section of her website:

“It will be up to the [Supreme Court] to decide if the Defense of Marriage Act violates the Constitution by forcing the states to discriminate against same-sex couples,” Melnick writes. “This decision could uphold that federal encroachment over the areas where states have sovereign jurisdiction, such as with marriage, is unconstitutional and leaves marriage in the hands of the states. This question is to be answered by the courts, not the Congress. But I do believe that the US Constitution provides equal rights for all people, including same sex couples who want to get married, who want to own property, who want to make medical decisions, who want to share insurance expenses, who want to immigrate, who want to work, who want to serve in our military, and who deserve to live their lives free of discrimination.”

Unfortunately, Smith represents a pretty safe Republican district in Central Texas, and Melnick is facing some long odds. But who knows, maybe Smith’s one-time legislative director, Ken Mehlman, has something to tell us about him.

—  John Wright