On the Failures of Privacy

In 1993, President Clinton signed into law a legislative compromise on allowing gays to serve in the military as long as they served in silence about their sexuality. This policy, known as Don't Ask, Don't Tell, Don't Pursue, Don't Harass (or, DADT), has led to the dismissal of numerous servicemembers and an ongoing legal and political headache. Recently, twelve service-members who were dismissed under DADT filed a case challenging the constitutionality of the military's now sixteen-year-old policy banning gays serving openly.

The case, Pietrangelo v. Gates, No. 08-824, charges that DADT violates both the First and Fifth amendments (and, by extension, the Fourteenth (see Bolling v. Sharpe (1954)), by abridging individuals' freedom of speech and rights to due process. Additionally, the plantiffs invoked the much-heralded (by pro-gay activists) Lawrence v. Texas (2003) decision that declared state laws against sodomy as unconstitutional under rights to privacy. Presumably, the hope in Pietrangelo v. Gates was to use the Lawrence precedent to establish the constitutionally-protected privacy of the "homosexual acts" with which DADT is so concerned (see the infamous Section 654), and therefore conclude that a policy abridging said acts is also unconstitutional.

Seems workable.

But on Monday, 8 June 2009, the Supreme Court tossed out this challenge altogether. The explanation for this action illustrates perfectly the failure of Lawrence v. Texas to be anything more than a marginal shift for the larger gay rights movement. The Court declared Texas' ban on sodomy to be unconstitutional because it violated an individual's (or a couple's) right to privacy. However, this justification has limited the scope of the decision's reach; only those actions and behaviors performed in the privacy of one's home are those currently protected under Lawrence. The right to be public is still far from our reach.

So when the Supreme Court considered this recent challenge to DADT, and particularly the Lawrence precedent, it should be no surprise that the Court refused to even hear arguments. Indeed, in the words of the court: "...The challenge fails because this Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), 'did not identify a protected liberty interest in all forms and manner of sexual intimacy.'" It most certainly didn't; it identified a protected right to privacy, not a protected liberty of expression or being. The "forms of [sexual] conduct" outlined in DADT are therefore "expressly excluded" from that which was recognized in Lawrence.

Until the queer community can garner legitimate and legally-protected access to the public sphere - and freedom of expression therein - this supposed protection under rights to privacy will continue to fall stunningly short of pushing the movement forward.

On Silence

***Note: This is a [shortened] reposting of my good friend Theo's blog from 2005 about the Day of Silence. I've tried several times now, and just can't say it any better.***

"As some of you may or may not know, today is the "National Day of Silence," which is where you are not supposed to talk to show solidarity to those who have been the victims of hate crimes against gay people. It is a big deal across the nation for many people. I, for one, can't stand it.

"I hardly think that refusing to talk shows any sort of support for the queer rights movement, rather I think it is a counterproductive event. This is mostly because those who oppress queer people would like nothing more than for queers to be silent. From a Foucauldian perspective, not talking about something is what takes power away from it. People like Jesse Helms actually do more for the queer rights movement by talking about it, because talking about it gives it power.

"...I guess it's because by talking about other sexualities, it calls into question the "fixedness" of heterosexuality. If, as Judith Butler posits, heterosexuality (and I paraphrase here) continuously tries to reproduce itself and fails, this is most brought out when other sexualities are brought out. Queerness is the failure of straightness to be the only sexuality. I, and I hope at least most other queer people, don't view myself as agnostic towards heterosexuality; it's just another point on the continuum of sexuality.

"Thus comes the practical part of this blog, I think that it is important to talk, not be silent. [Homophobic people are] scared, and thus angry, because they don't understand that gender bending and same-sex desire do not exist to threaten opposite-sex desire. The only way to fix this is to open up a dialogue. This is a movement that must be done by queers of all sexualities (and yes, I include heterosexuals in that)...

"...So rather than be silent today, why don't you change someone's mind? Start a conversation that will go on for more than just one day."

On Luxuries

Then again, marriage equality seems such a luxury in the face of news like this: six gay men have been murdered in Iraq, in what seems a roar of religious violence.

Two gay men were killed in Baghdad's Sadr City slum, a local official said on Saturday, and police said they had found the bodies of four more after clerics urged a crackdown on a perceived spread of homosexuality.

Homosexuality is prohibited almost everywhere in the Middle East, but conditions have become especially dangerous for gays and lesbians in Iraq since the rise of religious militias after U.S.-led forces toppled Saddam Hussein six years ago.

"...They were sexual deviants. Their tribes killed them to restore their family honor," a Sadr City official who declined to be named said.

The police source who declined to be named said the bodies of four gay men were unearthed in Sadr City on March 25, each bearing a sign reading "pervert" in Arabic on their chests.

As incredibly exciting as Friday was with the news of Iowa (and Vermont), this news should remind us that marriage is not the final frontier of the gay rights movement. This news should remind us that lives are still at risk, every single day. This news should remind us of the importance of hate crimes legislation and governmental attention at every level to violence against minorities. Last year, a California man used a "Yes on Prop 8" sign to beat a gay man. The irony of beating a gay person with a marriage campaign sign is stunning - we cannot let ourselves be distracted from the wars that are still being fought all over the world: the wars for our right to exist.

Decriminalizing homosexuality, although powerful and necessary, doesn't even begin to adequately engage in this fight. It's the fundamental groundwork and the recognition that this war is already being waged, but it cannot be the only step made by the global community. More has to be done. These lives won't be the last we lose.

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Let us also remember that these hate crimes don't only happen abroad. The Southern Poverty Law Center reports at least eleven separate incidents of hate crimes against the glbt community within the first three months of this year. These included death and poison threats against eleven Seattle gay bars, a gay woman beaten in Minneapolis, two gay men who were assaulted with glass bottles and box cutters in New York, a gay veteran murdered in Pennsylvania, a radio host calling for violence against transwomen, and two gay men who were beaten unconscious in Oregon. These are only the ones that have been reported. Actual numbers of hate crimes committed against any minority are unknown and underreported.

Marriage Is So Gay

Today, two exciting stories came across the wire - the Vermont legislature passed a bill legalizing same-sex marriages, and the Iowa Supreme Court struck down the state's ban on same-sex marriage.

In 1999, Vermont passed a law allowing recognition of same-sex couples through civil unions, although only to state residents. The law was the first of its kind. This new bill, if signed into law, would invalidate the current state law restricting marriage to one man and one woman, thus offering same-sex couples the full rights and status under the law. The Vermont bill is additionally exciting because it marks the first time that a state's legislature has taken on marriage equality without any previous action in the state's court system. This could help push the national rhetoric away from the idea of "activist judges" being the driving force of marriage equality, and towards a visibly more populist or democratic image of the advance of gay marriage.

The Senate passed the bill 26-4, and the House passed 95-52. Unfortunately, Gov. Jim Douglas (R) has promised to veto the legislation, saying that the civil unions bill is sufficient. Two-thirds majority of both houses is required to overturn a veto, but the House currently does not have the numbers to do so. The bill will go to Gov. Douglas next week.

Iowa law also restricted marriage to one man and one woman. Until today. The State Supreme Court issued a unanimous decision arguing that the ban violated the equal protection clauses of the state constitution. This is especially good news because of the legal precedent it continues, which establishes the gay community as a social group at risk of discrimination and potentially subject to differential treatment under the law. Doing so heightens legal attention to legislation that would specifically affect the community - a concept known as strict scrutiny. Iowa's decision evokes similar legal reasoning by referencing equal protection. These decisions build a new body of jurisprudence from which future cases can advance the causes of marriage equality.

It's a good day.

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PS.
California's Supreme Court is expected to hand down its ultimate decision on the constitutionality of Proposition 8, which banned gay marriage despite the above Supreme Court decision legalizing marriage, later this year. Marriage is otherwise currently recognized only in Massachusetts and Connecticut.

Quick Hit: Americorps Expansion

In step with the President's ongoing calls to national service, Congress is focusing this week on significant expansions to the Americorps Program, originally founded by President Bill Clinton in 1993. The proposed changes would more than triple the volunteer-based corps and increase the education stipend to approximately $5,000 (about the size of a Pell Grant) for those who complete their service.

On One-Way Relationships

Back to business as usual, I suppose.

After numerous steps taken by President Obama and the Democrats toward the middle, to say nothing of impressive concessions, not a single House Republican voted in favor of the economic stimulus package. Furthermore, eleven Democrats joined Republican ranks in working against the bill.

It's not that I expect Democrats to just fall in line, simply due to party allegiance. It's not that I expect Republicans to give away legislation either. But given the considerable concessions that Obama made - particularly on family planning financing for low-income families - it's either incredibly disrespectful or incredibly shrewd on behalf of the Republicans. Or both. Disrespectful that not a single Republican can meet Obama somewhere in the middle on a bill that is already one-third composed of tax cuts, and shrewd that they still managed to get hardline party matters of limiting sexual autonomy removed from a bill that would pass even without their support. Hopefully the Senate won't cave so easily to unreciprocated bipartisanship.

Obama ended the global gag rule in our foreign policy. If only we could end it in our own country.

On January 20, 2009

I was there.

After two long hours of walking all over DC early in the morning, another three hours of standing in the bitter cold, and eight long years of divisionist politics and a seemingly interminable winter in America, I - and millions others - watched as Obama took the oath of office.

I don't want to be trite about this. But the sounds make it difficult. The sound of three million exuberant people roaring from the Lincoln Memorial all the way to the Capitol, and then the sound of the same three million falling eerily silent to listen the words of one man make it difficult to describe that day without some tired euphemism of long awaited vindication or renewed sense of spirit. It seemed the want for redemption was so thick in the air, it was practically tangible.

I can still feel it. A sense of urgency, to get down to the extraordinary business of rebuilding our country alongside our president.

The great work begins.