Unless you were living in a cave you should be aware that a week ago Tuesday the people of Maine decided to pass on marriage rights for same-sex couples.  Commentators described it as not only “a harsh blow to the gay marriage drive,” but “a major set back to gay rights,” and “a tremendous and devastating loss for LGBT rights“.  From these reports the Maine vote served as a barometer for not only the fate of the marriage equality movement but for lgbt rights more generally.

In isolation, I don’t regard the vote in Maine to be as apocalyptic as some in the media have maintained.  After all, the sentiments of Mainers is trending, and trending quite quickly, in a favorable direction on the question of accepting legal marriage for same-sex couples.  If marriage is your issue, then give it a legislative session or two – they’re almost there.

But while we were all looking in a northeasterly direction, some very interesting things have been going on elsewhere in the country on the question of sexual rights.  Not only did the health care bill that came out of the House last weekend explicitly remove the tax penalty carried by lesbian and gay employees who put their partners on their health plans (removing its treatment as taxable income) but other important and positive legislative action has taken place since the Maine vote:

- The Fort Worth, Texas city council voted 6-3 yesterday to amend the city’s anti-discrimination ordinance to include protections for transgender people.  Fort Worth is not exactly the “Castro of the South,” and the fact that the vote was 2 to 1 in favor of the change in the law is fantastic.  But it gets even better.  As the Fort-Worth Star Telegram reports:  “A lot of the debate, though, centered on broader proposals, some of which the council has already tacitly approved.  City staffers will be trained on dealing with the lesbian, gay, bisexual and transgender community, and the Police Department has appointed a liaison to the community.  Other recommendations will require further study, including offering domestic-partner benefits and expanding the city health insurance plan to cover gender reassignment procedures, including sex changes.”

- Tharptown High School in Russelville, Alabama yesterday decided to reverse an earlier decision to bar a lesbian student from bringing her girlfriend to the Junior Prom.  After pressure from the ACLU on behalf of the student, Cynthia Steward, the school district yesterday capitulated and announced that they could attend the prom together.

- Yesterday the city council in Salt Lake City, yes Salt Lake City, voted unanimously to add sexual orientation and gender identity protections to its anti-discrimination law.  Why was the vote unanimous?  Because the change in the law had the full backing of the Mormon Church.  “The church supports these ordinances because they are fair and reasonable and do not do violence to the institution of marriage,” said an LDS church spokesman.  Don’t believe it?  Watch:

This embrace of gay and trans rights by the people of Salt Lake City and the LDS church did not come as a surprise to those who have been watching the sophisticated political work being done there by lgbt activists in coalition with other progressives.  As I blogged before: Lisa Duggan’s has written in What’s Right with Utah, about the successful and radically progressive political campaign going on in Salt Lake City undertaken by the lgbt community after they lost the chance to gain marriage rights when the state constitution was amended barring such unions.  They regrouped, found straight partners with whom to work in coalition, and have taken on much broader reforms than what they could have accomplished with “mere” marriage rights for lesbian and gay couples.  Brilliantly, they found local Mormons who opposed gay marriage, but who said they weren’t homophobic and took them at their word.  They found that of this group 62 percent supported employment nondiscrimination laws, 56 percent supported fair housing laws and 73 percent supported granting adult designees of state employees health insurance coverage. They also found that 56 percent backed legal protections like inheritance rights and job protection for LGBT people.  When they could no longer ask for marriage they found unlikely partners with whom they could ask for much more than what marriage would have provided.

The marriage crusade (and I mean crusade) had a set back in Maine the other day.  But let’s not overdetermine that event as indicative of  more than it can and should bear.  First of all, the folks in Maine working on this issue have suffered a set back, but not annihilation.  But perhaps more important, the fight for marriage equality isn’t the only thing lgbt people, or queer people for that matter, care about.   Whether it’s going to the prom with your girlfriend, getting a hate crimes bill passed, changing the heteronormative bias of tax laws, or thinking outside the politics of matrimony as they have in Utah, a gay rights agenda, and certainly a queer political agenda, is undermined by reducing it an up or down vote on marriage in any one state.

The relative silence of a queer – or even a gay – voice in the health care reform debate of the last six months is confounding.  As someone who spent my 20’s and 30’s dealing with close friends and colleagues dying of AIDS, who watched many people become impoverished by their disease, and saw first hand how pre-existing conditions clauses rendered health insurance coverage useless when it precluded any coverage for HIV-related care, it strikes me that the lgbt community knows as well as any other group of people why these reforms – including a public option – are necessary.

But the implications of health care reform for the lgbt community extend well-beyond HIV – because the employer sponsored health insurance regime we live with is, essentially and unavoidably, hetero-patriarchal – it assumes the nuclear family as the typical unit needing and deserving insurance coverage. By insuring not only the employee but his spouse and minor dependents as well, our employment-centered health insurance paradigm imagines a male employee/head of household with a wife (who is not employed and therefore does not have her own insurance) and kids, all of whom were covered incident to the male adult’s employment. The family wage brought with it family benefits.

Rendered invisible, or at best marginal, in these policy choices around health insurance are those of us who cannot or will not get health insurance on account of a relationship to a husband or father who brings home both the bacon and a health insurance card.  But gaying the story doesn’t quite fix the problem.  Marriage equality advocates’ demands that same-sex couples be allowed to marry so that we too can get on the insurance policies of our well-employed partners somehow fails to get at the underlying problem of what is at bottom a health care delivery system that presupposes the nuclear family.

A queer approach to the issue would question the norm of a health care delivery system that privileges those people who are willing and/or able to organize their lives into a traditional household, with a head who is working a good job that includes health care coverage for all the rest in the family.  Just as it is wrong to make better health care available to those who can afford it, so too, the queer argument goes, it is wrong to make health care coverage turn on one’s ability to line up your life like the Brady family.  Good health care should have nothing to do with wealth or conformance with hetero-patriarchy.

Last night at the Human Rights Campaign dinner President Barack Obama delivered his first big speech on lgbt issues since becoming President.   There was much anticipation for the speech, as some in the gay community feel that the President has not moved fast enough on the issues affecting our community.

What is “an LGBT Issue”?

But what impressed me about the speech was not that he failed to set a date or timetable for the repeal of  “Don’t Ask, Don’t Tell,” or that he offered no new legislative strategy to pass ENDA, but rather the “queer-ness” of his remarks.   After a pretty funny joke where he thanked HRC for inviting him to be the opening act for Lady Gaga, he acknoweldged that many in the audience held the view that “progress had not come fast enough” on lgbt issues.  He challenged the assembled homo audience to think expansively about what it means for something to be an “lgbt issue”:

I think it’s important to remember that there is not a single issue that my administration deals with on a daily basis that does not touch on the lives of the lgbt community.  We all have a stake in reviving this ecomony.  We all have a stake in putting people back to work.   We all have a stake in improving our schools and in acheiving quality, affordable healthcare.   We all have a stake in meeting the difficult challenges we face in Iraq and Afghanistan.

These and other remarks signaled the President’s strong anti-identitarian and non-institutional approach to civil rights, an approach not shared by the likes of HRC and many other lgbt rights groups.   Rejecting the notion that “our issues” are exhausted by those that have “our names” on them, such as “gay marriage,”  “gays in the military,” or a “gay-rights bill,” Obama suggested that the community take on a much more ambitious agenda.  Take the marriage equality campaign, for instance.  Many lgbt people seek the legal recognition of their relationships in order to gain their partner’s health benefits.  But there are many, many lesbian and gay people who can’t or won’t marry someone with good benefits, and a right to marry a same sex partner won’t help them.  Health care reform that secures a right to decent health care, regardless of one’s marital status or one’s ability to hook up with someone with good benefits, surely should be on “our agenda,” as Obama put it to us in his HRC speech.

In a sense the President was subtly acknowledging that there are large parts of the lgbt community that would never attend one of these dinners, and that don’t see HRC as “their” organization.  I’m going to guess that very few of the people attending the dinner – all of whom paid at least $250 to attend (and many paid much more) – had been laid off in the last six months and/or were among the upwards of 47 million Americans without health insurance.   Indeed, the President was one of the very few people of color in the room who wasn’t serving the food and clearing the tables.   If you check out HRC’s website, it’s health tab says nothing about the pending health care reform legislation in Congress or whether HRC has taken a position on the legislation.  It’s clearly not part of “their agenda.”

In his HRC speech, President Obama also challenged his audience to think expansively about what it means to be gay or lesbian:

For, while some may wish to define you solely for your sexual orientation or gender identity alone, you know and I know that none of us wants to be defined by just one part of what makes us whole.

This was perhaps the queerest moment of the speech.  Rather than invoking the now-common, creepily nationalistic moniker “gay-American” that Jim McGreevy tragically wrapped himself in when he came out in 2004, Obama’s speech urged his audience to focus more on interests than on identity.

Rather than reading Obama’s remarks as somehow falling short when it comes to ticking off the gay agenda, maybe we should listen more closely.  Could it be that his support of civil unions instead of marriage rights for same sex couples, and his prioritization of health care and jobs over the immediate repeal of “Don’t Ask, Don’t Tell” mark how he’s actually out in front of “us”?   More progressive than “we” are?

Take a moment and read Lisa Duggan’s piece in the Nation from last summer, What’s Right with Utah, in which she describes the successful and radically progressive political campaign going on in Salt Lake City undertaken by the lgbt community after they lost the chance to gain marriage rights when the state constitution was amended barring such unions.  They regrouped, found straight partners with whom to work in coalition, and have taken on much broader reforms than what they could have accomplished with “mere” marriage rights for lesbian and gay couples.  Brilliantly, they found local Mormons who opposed gay marriage, but who said they weren’t homophobic and took them at their word.  They found that of this group 62 percent supported employment nondiscrimination laws, 56 percent supported fair housing laws and 73 percent supported granting adult designees of state employees health insurance coverage. They also found that 56 percent backed legal protections like inheritance rights and job protection for LGBT people.  When they could no longer ask for marriage they found unlikely partners with whom they could ask for much more than what marriage would have provided.

This is the subtle premise of Obama’s speech last night:  think critically and progresively about what it means for something to be part of “the gay agenda.”   His remarks cautioned a kind of self-ghettoization that is always at risk when one’s politics are premised on and invested in a claim to identity that demands that political and legal victories be framed in terms of a ratification of that identity.  So too, there is a lesson in these remarks for the groups that speak on behalf of that identity, such as HRC.

The good news is that there are organizations that see the connection between, for instance, the health care public option and the interests of lgbt and queer people.  Queers for Economic Justice is perhaps the best but not the only example.  See their work on health care here.

Both during and after the City Bar Association panel I participated in a few weeks ago on the future of same sex marriage, I’ve gotten some push back for suggesting that we consider and evaluate the merits and risks of various constitutional arguments that have been made in the cases challenging the exclusion of same sex couples from the legal institution of marriage. At the panel, I commented that simply because a legal argument is available to us doesn’t mean we should make it. The availability of the argument merely inaugurates, rather than concludes the political discussion about why and how we should win the right to marry.

What does it mean to have an argument available and what arguments were available in the same sex marriage cases? Availability means that it has some level of plausibility – that there is some body of case law to which the advocates in the case can turn that can form a non-specious basis of having the marriage laws overturned. In the Hawaii case in 1993, for instance, the case was won on a sex discrimination argument – that barring same sex couples from marrying amounted to a form of sex discrimination in so far as the state’s marriage law allowed you to marry one, but not another, sex (men can only marry women, women can only marry men). Professor Andrew Koppelman¹ has been making this argument for years, and Professor Edward Stein², among others, has offered a sustained critique of Koppelman’s sex discrimination argument.

Most of the cases since then have stressed other arguments – Fundamental Right to Marry, Dignity and Equal Protection. The Fundamental Right argument asserts that there is a fundamental right for all people to marriage, and that the state better have a compelling, non-discriminatory reason for denying access to marriage licenses to same sex couples. I’ve blogged previously on my problems with this argument. The Dignity argument maintains that refusing to confer the blessings of civil marriage upon same sex couples confers a dignity harm upon them, by refusing to acknowledge that same sex unions are entitled to the same dignity and respect as different sex unions. I’ve blogged previously about my concerns with this argument as well. The Equal Protection argument, which won the day in Iowa, claims that an equality norm has been violated when the state discriminates on the basis of sexual orientation in access to marriage licenses. Read here for why I liked the Iowa Supreme Court’s equality argument.

Reasonable minds on the same side of an issue can disagree about the relative merits or dangers of pursuing any or all of these approaches to gaining marriage rights for same sex couples. Yet, as one audience member at the City Bar panel asked: “if we might win with the dignity argument, why shouldn’t we make it?”

Law reform litigation is not about winning at any cost. These cases are part of a larger set of political strategies that play a key role in a political movement. Each of these arguments, if successful, enable or extinguish subsequent political action in complex ways. The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community. The equality argument makes no claim about the virtues of the institution of marriage, but merely states that if the state is going to be in the marriage business it must be so fairly.

I find it odd that the lot of us who have sought to have a critical discussion about how to argue these cases are being branded as traitors and are met with hostility from some of the lawyers and activists in the marriage equality movement. This debate is healthy and politically necessary. In the early 1970s there was no unanimity as to whether reproductive rights in general, and abortion rights in particular, should be argued as a matter of sex equality, liberty, privacy, bodily integrity, decisional autonomy or dignity. Harry Blackmun was able to get 4 other votes for privacy in Roe v. Wade, but most agree today that privacy provided a fragile and unsatisfactory hook upon which to hang this important issue. Poor women have not been helped by privacy, and over time the privacy right for all women secured in Roe has been pretty porous.

Similarly, should we have won the Lawrence v. Texas sodomy law case on privacy, equal protection, liberty or fundamental rights grounds? What about a notion of sexual citizenship? Wouldn’t finding that sodomy laws violate a notion of sexual citizenship be a victory not only for sexually non-normative people such as lesbians and gay men, but also potentially shore up reproductive rights as well?

These are important arguments to keep having among all of us on the same team.

1. Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994)
2. Edward Stein, Evaluating the Sex-Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471 (2001)

We learned late last week that David Souter plans to step down from the Supreme Court at the end of this term. Nominated by President George H. W. Bush in July of 1990 on the expectation that he would be a dependable conservative vote on the Court, Justice Souter has instead marked his time on the Supreme Court as a reliable member of the Court’s left. Not only has his judicial ideology departed from that which was expected of him, but the Court’s center has shifted markedly to the right, making his rather moderate views seem “left-ish” in comparison. Rumors of Justice Souter’s resignation set off the usual parlor games among bloggers and law professors alike. Rather than weigh in on who I think is likely to replace Justice Souter, a little back story on his nomination in 1990 may put the current nominatory climate into some perspective. In the intervening almost 20 years since David Souter was nominated to the U.S. Supreme Court by President Bush the First, much has changed. Let’s hope that the issue of the nominee’s personal life is one of them.

In July of 1990, President Bush nominated David Souter to fill William Brennan’s seat on the U.S. Supreme Court. At the time, I was the Executive Director of the National Lawyers Guild – the national association of progressive lawyers and legal workers. It fell to us and the rest of the “critical left” to formulate an opinion about the Souter nomination and, most likely, to oppose it – he was, after all, being nominated by a republican President.

The NLG played a key role in the meetings that were immediately convened in Washington to discuss strategy. Of the national organizations that attended these gatherings – the ACLU, the Alliance for Justice, People for the American Way, the Center for Constitutional Rights, NOW, etc. – the Guild was the only membership organization that had lawyers in New Hampshire who knew Souter and his reputation. Everyone else was, “who?” We worked up a briefing paper for the first meeting, and the only “dirt” we could find on him was his aggressive prosecution when he was the New Hampshire Attorney General of a couple of hippies who had covered up with tape the “Live Free Or Die” slogan on the license plates on their van because they disagreed with the state’s motto. Otherwise, our New Hampshire members told us that he was a very quiet, ascetic man who had never married and preferred books to people.

When we began to discuss possible strategies for derailing the nomination – of course we had to since Bush had nominated him – the Executive Director of one of the aforementioned organizations declared: “Maybe he’s gay, we can use that on him.” The confirmation fight of Robert Bork was still fresh in our minds – having occurred only 3 years earlier – so why not “Bork him” with homosexuality?

Pat Maher, who was then the Executive Director of the Center for Constitutional Rights, looked over at me and we exchanged the “are you going to take this one, or should I?”-look. I stood up and made clear that “queer-baiting” the nominee was not an acceptable strategy. There was some “why not?” kind of push back we got from several people at the meeting – “maybe we could just float the suggestion informally, and let it circulate for others to pick up and run with?” suggested one person. “We have so little to work with.” After all, “outing” as a political tactic used by gay people against closeted gay people had just started to get public attention. Six months earlier, gay activists had “outed” Mark Hatfield, a Republican United States Senator from Oregon, because he supported legislation initiated by Jesse Helms. In March of 1990, recently deceased Malcolm Forbes was outed by Michelangelo Signorile. Why not David Souter too?

Pat and I took turns answering the homophobic suggestions that we exploit the suggestion of Souter’s presumed gay-ness, turning back the creative ways we could “out him” as a way to undermine his viability as a member of the Supreme Court. We had no actual evidence that Souter was gay, rather he was an unmarried adult man who at the time still lived with his mother. He had not taken public positions that were anti-gay or was otherwise duplicitous in his public and private life – as was Hatfield and today’s Larry Craig. Merely outing him, or suggesting that he might be gay, was capitalizing on the homophobia otherwise circulating in society and Washington. Not acceptable.

Pat and I won the day – we didn’t go with the “outing” strategy – instead we opted for the “stealth nominee” idea (we coined the term).

Obama’s short list, or at least the one circulating in the parlors of law schools and Washington, contains several candidates with private lives like Souter’s: neither Elena Kagen nor Janet Napolitano have been married. But get this: Kathleen Sullivan, former dean of the Stanford Law School and Pam Karlan a law professor also at Stanford, both often mentioned for the Court, are actually out lesbians. You can be sure that the republican members of Congress and the advocacy groups lining up to oppose any Obama appointee are strategizing how to raise the “gay” issue with Kagen, Napolitano and Sullivan (the conservative blogosphere is already well down that road). 2009 isn’t 1990 – and the mere suggestion of homosexuality doesn’t have the same unseemly undermining effect that it did back then. But it ain’t nothing – like not paying your taxes seems to be now. (Remember Zoe Baird?).

So when queer-baiting these nominees is inevitably suggested let’s hope there’s someone in the room who stands up and urges a different tactic. Just as some Republicans have come to appreciate how their opposition to same sex marriage may be hurting the party, or so says the New York Times, queer-baiting Supreme Court nominees may be counterproductive for them as well – more so today than it was 20 years ago when David Souter’s name, and life, came before the Senate Judiciary Committee.

Columbia Law School’s Sexuality and Gender Law Clinic can boast another victory – this time on behalf of a gay parolee in Massachusetts.  The Massachusetts Parole Board agreed last week to give Bruce Wilborn, an openly gay inmate, a new parole hearing to settle the sexual orientation discrimination charges he brought against the board more than a year ago. The settlement comes after Federal District Court Judge Patti Saris rejected the Parole Board’s attempt to dismiss Wilborn’s claims that the parole board singled him out and treated him worse than other parole applicants because he is gay. Columbia Law School’s Sexuality and Gender Law Clinic and the law firm McDermott Will & Emery LLP serve as counsel for Wilborn.

I returned today from 10 days in Morocco to learn with great sadness of Eve Sedgwick’s passing.   In an odd way, it was fitting that I was in North Africa during her last days – for there are few places in the world in which one can experience the celebration of homosociality more than one can in the Maghreb.

Eve gave us this term: homosociality.  Challenging us to think beyond a homo-hetero binary as the primary frame for organizing the expression of desire, in Between Men: English Literature and Male Homosocial Desire (1985), Eve sought to show us how the intimate bonds between men should be understood as at once about erotic desires but not essentially so, as in the conventional homosexual sense, or to use her way of framing it, in the genital sense.  Rather, she envisioned a continuum between homosociality and homosexuality, whereby men’s desires for one another served as the social force, or glue, that holds patriarchal societies together.  To this end, she suggested that we might better understand the desires between men as a continuum between “men loving men” (homosexuality) and “men promoting the interests of men” (homosociality).  Provocatively (as she always was) she thus suggested a similarity between a self-identified gay male couple (men loving men) on the one hand and Jesse Helms and Ronald Reagan working to develop “family policy” (men promoting men’s interests) on the other.  In this sense, Sedgwick urged us to see the relationship between sexual (gay/lesbian) and power (gender) -based politics.

As we walked through the streets of Marrakech and the village of Imlil over the last week, I couldn’t help but be reminded of  Sedgwick’s work, and when I described the culture to my family with whom I was traveling as deeply homosocial, I mentioned Between Men as the source of an analysis that urges us to resist seeing gayness in the Chelsea/Castro sense when we witness two men in public holding hands, stroking one another’s faces, or walking arm in arm.  These sights are very common in Morocco, as they were when I was in Cairo last spring.   But we’d be wrong to “read” Moroccan culture as latently homosexual.  What Eve gave us was a more complex way to think the world – to see how same-sex intimacy in these sorts of settings cannot be reduced to sexual desire, yet the desire that structures these ways of relating should not be denied either.  That’s the continuum of which she wrote – one that helped us understand the men on the streets of Marrakech, as much as the characters in the novels of Henry James, as “about” intimacy between men, as “about” how that intimacy triangulated their desire for women, and as “about” how homosociality perpetuated certain gender hierarchies that were deeply patriarchal in nature.  It wasn’t lost on us that it was mostly men we saw in public in Morocco.  While the men held hands while they drank tea in quaint cafes, the women were walking miles gathering wood for cooking, were home preparing the family meals, and were doing the reproductive work of society in their own homosocial settings.

As our tribute to Eve Sedgwick we should all return to her great work and read it once again.   Her ideas were vitally present for me this last week in Morocco just as they were when I returned home to my apartment in Chelsea.  In both places I was/am surrounded by men arm in arm – but Eve taught me that these two settings are more similar that I might otherwise have thought, had I not read her great work.