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    Ann Rostow: The New Black

    By Ann Rostow

    Swirling through the debate over marriage and gay rights in general is a deeper American colloquy. Is opposition to gay equality a matter of opinion to be respected? Or is it a derivative of prejudice to be condemned?

    We’re not talking about some hostile crazy person who says gays will burn in Hell. We’re talking about someone like Brendan Eich, the head of Mozilla, who was forced to resign under duress after it became known that he donated a thousand bucks to Prop 8 back in the day. We’re talking about the head of Barilla pasta, who said his company promoted traditional values and would not use gay families in its commercials. We’re talking about the photographer in New Mexico, who said she’d happily serve gay clients, but balked at taking on a lesbian wedding. We’re talking about Bubba Watson, winner of two green jackets, who believes gays are sinners, but said he loved us anyway (and would have us over to dinner).

    Many people, including some ardent supporters of marriage rights, have recently written about the need for comity between activists and what I guess you might call passive resistors—otherwise decent sounding people who happen to believe in traditional values, but who wish us no harm. When a computer guy loses his job because he made a political donation that we don’t like over a decade ago, don’t we look like the intolerant ones? Can’t we win our battles in a polite marketplace of ideas rather than the nasty arena of Internet petitions and politically correct screams in the media?

    In some ways, I would love to join the crowd now calling for good manners on the battlefield of gay rights. I’ve always enjoyed sending digs in the direction of the Gay and Lesbian Alliance Against Defamation (GLAAD), who used to pop up on cue like an angry Jack in the box, all red faced due to some completely innocuous incident or remark. Not everything is a slur. Even stereotypes are sometimes accurate. Some gay men and lesbians are complete jerks. We are not perfect, nor beyond criticism.

    But opposition to marriage equality is not a banality. Or if it is, it’s of the Hannah Arendt variety. Free speech, as we all know, does not guarantee that speech will have no consequence. It only guarantees that the State will not censor our commentaries absent some compelling reason. Indeed, Internet petitions and boycotts are exactly the sort of tools we have at our disposal to fight notions we find contemptible. And if, and when, someone else finds our contempt alarming, they have recourse to the same arsenal of Democracy. The marketplace of ideas is more of a street fair than a chic boutique.

    Mr. Eich lost his job, not because of an organized campaign from gay activists, but because of several factors: a web site made a big deal about it, an online petition of complaint generated 70,000 names (not such a big number), and Mozilla staffers were upset. It was bad publicity for a firm in a very competitive and youth oriented field. Many other corporate chiefs with unpleasant views have survived.

    Much of the reaction against those who don’t favor marriage equality now comes—not from the GLBT community—but from the rest of America, particularly young America. We are the new Black. We are the new Correct. This is the side effect of widespread change in America’s view of sexual orientation.

    Is it sportsmanlike? Gentlemanly? Perhaps not. The LGBT community and our allies aren’t running around looking for adversaries to put to the sword. But nor are we letting people off the hook when they maintain that they have nothing against us, save a harmless desire to stick with tradition. The tradition of relegating gays and lesbians to second-class status or worse is exactly what we have been fighting for decades, and there’s nothing harmless about it.

    I can’t help but suspect that those in and out of the gay community who wring their hands at our inability to be “gracious in victory,” are themselves a product of their times. Baby boomers like me who are so relieved and happy at the amazing progress they’ve experienced that they are inclined to settle for a tolerant society rather than an equal one. But equal is equal. Nothing short of it is acceptable, period. Everyone remains free to maintain their views, but opposition to marriage equality, or any equality, will never go unchallenged as long as the gay rights movement runs forward.

    We’ve always been fighting for equality. But we’ve been so far away that it’s been sort of a rhetorical goal. Equality, yes. But first, can we remove ourselves from the list of psychiatric disorders? First, can we repeal criminal statutes against gay relationships? Can we serve in the military? Can we keep our job, our housing? Can our partners see us in the hospital, inherit our assets?

    Equality has only become visible in the last few years. Now it seems reachable. And now we have to make our case to exactly the sort of people who protest that they have nothing against gays save a difference of opinion or faith. It’s exactly that difference of “opinion” that we have been trying to reconcile for half a century. Are we equal or not? For those people who still insist “not,” even those well-meaning nice people, we must continue to express our disapproval. We can’t be gracious in victory until we’ve reached victory to begin with.

    Tenth Circuit Redux

    So here’s an interesting situation. One week ago, a three-judge panel on the Tenth Circuit heard arguments in the Utah marriage case, specifically the appeal of a federal ruling that struck down marriage discrimination in the Beehive State.

    Today, April 17, the exact same panel will hear arguments in the virtually identical Oklahoma marriage case. Are the judges going to ask different questions? Are they going to drill down on some of the issues raised the week before? Will they play devil’s advocate? Will the Okie lawyers take a different tack than the Utes?

    Last week’s headlines were full of ambiguity, but the general theme was “judges seem split on marriage.” It sounded, as we expected, that our Democratic appointee, Carlos Lucero, was on our side. Our conservative judge, Paul Kelly, seemed wary. And our middle of the road guy, Judge Jerome Holmes, could go our way if we’re lucky.

    Much of the discussion revolved around the level of legal scrutiny to be applied to gay marriage and/or sexual orientation discrimination. Unfortunately, the Tenth Circuit recently ruled that sexual orientation bias does not deserve heightened scrutiny (in a 2008 case). On the other hand, the denial of fundamental rights like marriage should also trigger heightened scrutiny when denied. Some judges avoid this conclusion by deciding that, even though “marriage” is a fundamental right, the “right to marry a same-sex partner,” is not fundamental after all. I gather everyone went back and forth over this ground.

    According to reports, there was also some discussion on the irritating subject of whether gay men and women are good parents. I won’t go into a full rant today, but I have to note (again) that gay men and women will be parents whether or not they are legally married. Further, the Supreme Court has expressly upheld the right to marry for deadbeat dads and incarcerated prisoners. No one questions that the “right to marry a convicted felon,” or the “right to marry a deadbeat who doesn’t pay child support,” is indeed “fundamental.” But the “right to marry a same-sex partner” is somehow unthinkable? It’s only a matter of time before the semantic strings that are holding up this dangling constitutional construction are frayed beyond repair, and I have to hope that this time has come.

    In other federal marriage news, a judge in Ohio has ruled that the state must recognize same-sex marriages from elsewhere, a decision that flowed directly from December’s federal ruling on recognizing same-sex partners on death certificates in the Buckeye State. The judge stayed his opinion for Ohioans in general, but left it in effect for the plaintiff couples in the case.

    The Ohio ruling, along with federal marriage victories in Tennessee, Kentucky and Michigan, will be headed to the U.S. Court of Appeals for the Sixth Circuit later this year. The Michigan attorney general has asked that instead of assigning one or more three-judge panels, the full court will review all these cases “en banc.” Of the 15 active judges on the Sixth Circuit, 10 are GOP appointees and five are Democratically named. If you do the math, you can see why an opponent of marriage equality would want the entire bench to get together and hash it out. Even though many GOP judges have ruled in our favor over the last year, those odds are daunting for marriage activists.

    Don’t forget that the Fourth Circuit will take up the Virginia marriage case next month, so we’ll have plenty of action in store. Plus, we are waiting for lower federal court rulings in a zillion other states. In fact, of the 33 states where marriage is not legal, only five are not party to legal action.

    Georgia On My Mind

    I could have gone on with marriage news, but we have to limit our intake. Otherwise, we wouldn’t have time to register our disappointment that Blubba won the Masters (it’s not just his Biblical literalism, but must he button his polo shirt up to the neck? I hate that.). Nor would we find the space to mention that Our Gay Bishop Gene Robinson is to give the Easter prayer at the White House, or that some airport cab drivers in Cleveland are refusing to drive taxis with Gay Games ads on the side.

    Hey. How about the Chicago man, Kelvin Matthews, who was arguing with a Sprint customer care representative about an account that was supposed to be closed. When Sprint sent him an email to confirm whatever arrangements they made, he noticed it was addressed to: “Sissyboy Kelvin Gay Matthews.” Say what? Sprint offered him a free iPhone and two months of service, but Kelvin refused and cancelled. Matthews is straight and married, not that there’s anything wrong with that.

    The story reminds me of the convenience store that was in the news this week because the manager put up a sign that told clients to pull up their pants. Tired of the baggy look, the Georgia man wrote: “Only “FAGS” like to keep their pants down. Pull your pants up or be proud to be a FAG.”

    “It really offends me by them coming in, pants down,” Anil Patel told the press. “So it is not that I’m against them, gay people or anything like that, but just trying to prove a point. If you are going to come in my store, make sure you have your pants on.”

    You know. It’s hard enough to fight stereotypes. And indeed, as I mentioned earlier, some stereotypes are real. But coming up with completely erroneous generalizations about our community adds surrealism to insult. Readers? Have you ever seen a gay man running around gangsta-style with his pants around his hips in public? Emphasis on “public?” Oh, and notice that Mr. Patel “has nothing against us,” a mitigating aside that has become a de rigeur preface to even the most horrific antigay

    And finally, keeping the previous item in mind, I recently read an essay (in the New York Times, bien sur) that questioned why the media tiptoes around words like “fag” when used in a news context. Why say that Mr. Patel “used a gay slur” or that someone “told the press to go away using language that cannot be repeated in this newspaper?”

    Why not say “fag,” if that’s what was said or written? It’s not as if the media itself has deliberately selected a slur or an obscenity. It’s part of the news story. I don’t know how many times I’ve had to look up a story ten times before I can figure out exactly what “slur” or “term of denigration” was employed in some situation that I’m trying to describe. We’re all grownups here. If the guy said it, report it.