Gay hanging in Iran: Atrocities and impersonations

Naqsh-e Jahan Square in Isfahan, Iran, with the Shah Mosque at its nearer end

Naqsh-e Jahan Square in Isfahan, Iran, with the Shah Mosque at its nearer end. Photo from Iranian.com

I.

Everybody on earth knows that last week a deal on Iran’s nuclear program was announced.  Everybody also knows that this apparent step toward peace launched a new stage in an old war: of propaganda. Proponents praise the possibility of a historic opening. Opponents — who include Israel, Saudi Arabia, and the Republican Party — warn of disaster.  Both sides want to expand their constituencies. In Western countries, gay communities — small but politically influential — are more and more the target for just this courtship and recruitment.

The right-wing pundit Amir Taheri greeted the nuclear deal with a storm of tweets and screeds condemning it. One 140-character charge drew special attention.Taheri tweetAnyone’s first reaction would be some version of “My God.” It sounded horrible.  I wrote to Taheri asking for more information — and so, judging from Twitter, did at least three other people.

But the story quickly began to show cracks. Taheri didn’t reply to me, or anybody. I sat down that night with a Farsi-speaking friend and began searching for the story in the Iranian press: under the youth’s name, under various other key words. It didn’t turn up anywhere. I wrote to the Toronto-based Iranian Queer Organization (IRQO), a diaspora-based group of LGBT Iranian activists with which I’ve worked closely over the years. They searched the media as well and found no sign of it. They also reached out to contacts in Isfahan. On Friday morning, they told me no one there had heard of the story, either.

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Taheri on Fox News

Amir Taheri lies a lot. Eight years ago, Jonathan Schwartz called him “one of the strangest ingredients in America’s media soup,” adding, “There may not be anyone else who simply makes things up as regularly as he does, with so few consequences.” An arch-conservative protege of the Pahlavis, an editor of the Tehran daily Kayhan under the Shah, he repeatedly fabricates stories about Iran to please right-wingers in his adoptive West. Most famously, in 2006 he claimed in Canada’s National Post that a new dress-code law in Iran would impose special clothes on religious minorities, including yellow badges for Jews. Many conservatives swallowed the story; even the Canadian Prime Minister repeated it. But it was a complete falsehood, and after a huge furor the National Post retracted it and apologized: “It is now clear the story is not true. … We apologize for the mistake and for the consternation it has caused.” (The Post also noted that Taheri went “unreachable” after his fiction was exposed, rather as he did on Twitter.) Undeterred, in 2008 Taheri concocted a quote from Ayatollah Khomeini, complete with a fake citation of an invented source; American neoconservative luminaries duly repeated it. In 2002, Taheri claimed that “Osama bin Laden is dead …. the fugitive died in December and was buried in the mountains of southeast Afghanistan.” The list of his duplicities goes on and on. In 1989, an academic reviewing one of Taheri’s books

detailed case after case in which Taheri cited nonexistent sources, concocted nonexistent substance in cases where the sources existed and distorted the substance beyond recognition when it was present. … [The reviewer] concluded that Nest of Spies was “the sort of book that gives contemporary history a bad name.”

Larry Cohler-Esses condemns Taheri as a “journalistic felon,” part of a “media machine intent on priming the public for war with Iran.”

There are ample grounds for skepticism about stories Taheri spreads.

But skepticism doesn’t make headlines. Propaganda’s best friend is the ambition of the press. On Thursday, a reporter for the UK-based Gay Star News also tweeted to Taheri.

Morgan to Taheri tweetTaheri didn’t answer him, either. I know this because the reporter didn’t wait for a source. About 25 minutes later, his story — “GAY TEEN, 14, ‘HANGED FROM TREE'” — topped the website of  Gay Star News, and it said Taheri hadn’t told them anything. In other words, their entire account was based on one single tweet with no evidence behind it. This tweet was special, though. The topic of gay killings in Iran has shown its passionate drawing power over a decade, its ability to keep queers clicking. GSN wanted the clicks for itself.

The reporter clearly never asked Iranian LGBT activists or groups for their take. It was more important to get the headline out there. I wrote to Tris Reid-Smith, GSN’s editor, and asked “Is this standard practice — to run a story based on a single, unsourced, unconfirmed tweet from someone who declines to answer follow-up questions?” Tris rather cannily refused to reply in writing; he wanted to talk by phone. My phone in Cairo is tapped; I declined. I wanted this on the record, but not State Security’s record. If Tris still wants to answer my question, he is welcome to do so here. GSN has since added a few sentences to its story, saying:

we should note Iranian LGBTI networks have not confirmed the story. Some critics have questioned Taheri’s reliability. … UPDATE: For clarity, GSN has noted from the outset this report has not been independently verified. Taheri is yet to reply to our questions seeking to substantiate his claims. We urge caution but feel it is in the public interest to report the claims, given they are gaining traction on social media.

Let that final sentence revolve in your mind. What defines news these days isn’t truth. It’s traffic. (I’ve saved a screenshot of GSN’s original article, prior to the caution-urging, here.)

And of course the story spread. Neoconservative propagandist Ben Weinthal tweeted it manifold times:

Screen shot 2015-07-20 at 11.35.30 AMWeinthal is a lobbyist for the right-wing, pro-Israel Foundation for Defense of Democracies. One of his jobs is to drum up support in gay communities for hardline policies against Iran. I’ve detailed some of his many misrepresentations here. His desperate drive to ensure Taheri’s tweet gets coverage suggests what the motives at work are.

I love Big Brother: Ben Weinthal appears on paranoiac Glenn Beck's TV show, February 16, 2015. Photo from Beck's website, The Blaze

I love Big Brother: Ben Weinthal appears on paranoiac Glenn Beck’s TV show, February 16, 2015. Photo from Beck’s website, The Blaze

No one should ever minimize the real, documented, and terrible human rights abuses in Iran. But credulity for suspicious stories devalues the true ones. Given Taheri’s record, and the tangled political context, there is no reason to credit this tale without corroboration.

And here’s the thing: we’ve been through this before, and learned nothing. Look at the photo GSN attached to its article.

Screen shot 2015-07-20 at 2.57.35 PMThat famous image, exactly ten years old, reverberates with misery and horror. And cynics and opportunists know it as proven clickbait. In fact, the two youths were not executed simply for “being gay.” They were convicted of the rape, at knifepoint, of a 13-year-old boy. Claims that they were gay lovers circulated widely among Western activists; but no clear evidence materialized to confirm them.

International tension shaped the context, then as now. In June 2005, Mahmoud Ahmadinejad was elected President of Iran. The religious hardliner’s victory intensified foreign fears of Iran’s nuclear plans; Ahmadinejad moved quickly to quash negotiations with European powers and smear reformists as appeasers. Western conservatives stoked those fears, and rumors roiled. Immediately after the vote, a website affiliated with the Mujahedin e Khalq claimed Ahmadinejad had participated in the 1979 seizure of the US embassy in Tehran. The Mujahedin is a wealthy, cultlike Iranian exile group widely despised in the diaspora, but closely tied to many Western politicians. Amir Taheri leapt in; he alleged in print that that Javad Zarif — then Iran’s UN ambassador, now its foreign minister — had joined the hostage-taking. (Another fabrication: Zarif was studying in the US at the time.) That summer, a charged, familiar storm-cloud of fact, anxiety, and speculation swirled round the subject of Iran.

On July 19, 2005, the two teenagers were hanged in Mashhad. Reports in the local and national Iranian media said clearly they had been tried for tajavoz (rape) or lavat beh onf (“sodomy by force,” or male rape); the Quds newspaper in Mashhad quoted both the 13-year-old victim and his father. Another website of the Mujahedin e Khalq, however, published a piece on the execution aimed at Western audiences, and omitted the rape charge. Almost certainly the Mujahedin pointed out the story to lone-ranger UK activist Peter Tatchell — who had a record of publicity-seeking animosity to Iran and political Islam — and proposed the “gay” angle. On July 21, Tatchell’s OutRage website blared, “IRAN EXECUTES GAY TEENAGERS,” above the pictures taken from the Iranian press. Tatchell claimed, falsely, that Iranian media had not mentioned the rape, and that the pair were originally charged with consensual sex: setting in motion a stream of fictions that didn’t stop for months.

Mr. DeMille? Mr. DeMille? Q Television films Peter Tatchell at a demo over the Mashhad case, 2005. Photo by UK Gay News

Mr. DeMille? Mr. DeMille? TV crew films Peter Tatchell at a demo over the Mashhad case, 2005. Photo by UK Gay News

WIth panic over Iran already in the air, the photos went vastly viral. If politics motivated some to promote the story, for others it was publicity.  (Doug Ireland, a gay US writer with no prior knowledge of Iran who nonetheless rode the story to a new journalistic job, told me his blog got 60,000 hits the first day he carried the pictures.) As more facts came out and the tale seemed less plausible, its proponents got aggressive: not only with doubters, but with the protagonists. Tatchell, for instance, belittled the alleged rape and suggested the victim wanted it: “It could be the 13-year-old was a willing participant.” Meanwhile, the story’s popularity led to a desperate search for sequels, for new “gay victims,” that stretched for years. Virtually any execution for rape reported in the Iranian media — even of male rapists of women — could be arrogated or mistranslated as a punishment for consensual gay sex. In a grim and grotesque irony, the quest helped produce the dead. In 2007, Tatchell intervened in the last-ditch appeal of an Iranian prisoner on death row, also for the rape of a 13-year-old. Makwan Mouloudzadeh had been framed in a village vendetta; there was no real evidence he’d had sexual relations with the child, much less any other male. Instead of maintaining Makwan’s innocence, though, Tatchell falsely alleged the child was Makwan’s “partner.” Allies of Tatchell started a letter-writing campaign to Ahmadeinjad pleading for the “young homosexual Makvan,” arguing explicitly that he was “‘guilty’ of having loved a peer when he was 13 and having sexual intercourse with him.” They incriminated the man they were trying to save. Makwan, neither homosexual nor a rapist, was hanged.

The Mashhad story survives, immune to its malign consequences. Taheri certainly knows it — he surely suspected a 14-year-old victim would make his tweet go viral. The youths’ images are memed and manipulated everywhere. Sometimes the uses are political:

CJ4bAijUYAElnNFSometimes they’re mythological figures, as if the kitsch of Shi’ite religious iconography melded with the preoccupations of San Francisco.

The Ultimate Penalty: painting by Miguel Tió

The Ultimate Penalty: painting by Miguel Tió

But they remain, always, “the sacred gay martyrs of Iran.”

An hour or two after the Gay Star News story appeared, Tatchell seized the opportunity, announcing a “vigil” to commemorate the tenth anniversary of the youth’s deaths.

Screen shot 2015-07-20 at 1.59.43 PM“On 19 July, we stand for life, liberty and love,” Tatchell said at the demo. But think what that rhetoric obliterates. If their 13-year-old victim’s story was true, what would he say about those words? Most human rights activists know that you can oppose grave abuses, like the appalling execution of children, without spinning narratives of absolute innocence or “love.” But to do that requires abjuring sentimentality, and acquiring maturity.

A deep narcissism lies pooled here. What does “never forget” them mean, when you never knew anything about them in the first place? No one has ever seriously sought to learn facts (rather than weave romances) about the youths’ lives; no one ever showed the least interest in the 13-year-old they allegedly brutalized; no one has ever tried to find their families, and hear what they think of their sons’ pictures being broadcast in this way, or inserted into a foreign story about “gayness.” The boys are silent. Their muteness is their appeal. They offer a clean field for Western political and erotic fantasies; they’ve withered to ventriloquist’s dolls for Western voices. The indignities they suffered before death have been succeeded by a further descent, the indignity of being erased in the imperial name of memory. What Tatchell wants remembered is not the murdered youths. It’s himself.

II.

Strangely, I took two different tacks with Amir Taheri. The day after I politely asked him for information, you could have found me on Twitter writing in quite a different tone:

Screen shot 2015-07-18 at 10.19.03 PMExcept that wasn’t me. It was an account someone set up under my name about a week ago, which has been firing off tweets to Egyptians and various right-wing Westerners ever since. It says I’m a pro-Iran Islamist. It uses an old picture of me, and the inevitable photo of the hanged Iranian youth. 
Screen shot 2015-07-18 at 10.03.03 PM

The account isn’t a “parody.” Not just that it isn’t funny: it’s trying to get me arrested. It makes out that I support banned insurgent movements and want the Egyptian government overthrown. These messages it forwards to Egyptian tweeters, including government accounts.

ScottLon July 18

That one tweet could easily lead to a few decades in prison here. And the person who put my name to it appears quite conscious of the fact.

Who’s behind this thing? I have no idea. But I know who likes it. Here are the account’s followers when I checked it on July 16: 

Screen shot 2015-07-16 at 4.58.30 AM followersThe third person who’d followed the account — out of seven at the time — was “All Equal.” That’s the Twitter of Pliny Soocoormanee, who happens to be the personal assistant of Peter Tatchell, director of the Peter Tatchell Foundation. How he found out about this obscure account when no one else knew of it, and why it interested him so much, is a fascinating question. I can’t imagine the answer.

The morning after I criticized the Taheri story on Twitter, the account exploded with vengeful drivel, directed at people inside and outside Egypt (the one at top went to the country’s Ministry of Foreign Affairs):

ScottLon July 17-18But this BS is merely typical. Apparently I work for the Brotherhood, an illegal organization here:

ScottLon MB paidMy motives appear to be erotic as well as pecuniary.

ScottLon MBI’m also an informer.

ScottLon Morsi gays

But mostly the account just strives to identify me with vicious anti-Semitic ravings, marking the intrinsic fascism of its maker’s mind. (Fascism is the politics of a cynical, corrosive narcissism. The mark of fascism is that it imagines all other opinions are as fascist as itself.)

ScottLon antisemitism 2

The account is pretty much coeval with the nuclear deal with Iran. Its first three tweets:

His first 3 tweets

I wouldn’t pay attention to this crude fakery if it weren’t trying explicitly to incriminate me to Egypt’s government — which is arresting gay foreigners, and may not know the difference, or want to. I never cease to be surprised by the retributory malice of the Iran- and Islam-obsessed crowd, whether driven by ideology or the sheer love of headlines. They never stop.

Back in 2006, when Amir Taheri’s lies about Iran’s dress-code law were exposed, The Nation spoke to his PR agent. Accuracy on Iran is “a luxury,” she said. “As much as being accurate is important, in the end it’s important to side with what’s right. What’s wrong is siding with the terrorists.” You see? It’s us or them. Loyalty trumps truth. To expose useful lies is to take the terrorists’ side. And by that standard I am, of course, a terrorist.

Why does it matter? Because LGBT Iranians shouldn’t be exploited for propaganda. They lead lives seamed by danger, distinguished by courage; they deserve better than to be backgammon pieces, passive tokens stacked and shifted in a great-power political game. LGBT people should speak in their own voices, be masters and heroes of their own lives. That is what the liberation struggle is about.

The fact that nobody — not Tatchell, not Ben Weinthal, not Gay Star News — bothered to ask LGBT Iranian activists or groups what the truth was, or whether they wanted a demonstration, is appalling. But it’s typical. The story of Western engagement with LGBT rights in Iran has been one of occupation and ventriloquism, not freedom. It’s long past time for the sick game to stop.

Cartoon by Mana Neyestani, from Payvand.com

Cartoon by Mana Neyestani, from Payvand.com

NOTE: The fake account seems to have been taken down not long after I posted this: I don’t know whether by its maker or by Twitter (of course I complained). But, in some form or another, they’ll be back.

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The dignity of marriage: Gays on the wrong side of history

Angel of history: Paul Klee, Angelus Novus, not quite as seen by Walter Benjamin

Angel of history: Angelus Novus by Paul Klee (1920), not quite as seen by Walter Benjamin

I. Tears

Of course I cried. I cried because these nine antiquarian arbiters in funeral garb – five of them anyway, each looking about as forward-thinking and progressive as a constipated grandparent – informed me at last that I am part of this Great Community they help to govern. I cried too for the past, for all those years I never imagined this was possible, as if their words rather than repealing that suffering put it exactly in its place, just so, part of a long injustice necessary in some consoling theodicy so that justice could ultimately be done. I cried because I remembered when Bowers v Hardwick was handed down, 29 years ago. Back then five of the nine said I should go to jail, because “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” It was the last day of June. I spent that Fourth of July holiday holed up in a Cambridge apartment with my queer friend Charlie Fulton, getting drunk all day because we couldn’t tear ourselves from the TV; that was Liberty Weekend, the centenary of that old welcoming statue, and there were fireworks in New York harbor and endless blather about freedom and inclusion and Reagan intoning that “someday every people and every nation of the world will know the blessings of liberty.” Except us.

Not everyone invited: Time magazine cover, July 14, 1986

Not everyone invited: Time magazine cover, July 14, 1986

I cried ten years later when they decided Romer v Evans – “A State cannot so deem a class of persons a stranger to its laws.’ I cried eight years after that when they decided Lawrence v Texas, and told me I didn’t need to go to jail after all. Of course I cried again this time. I cried because I was tired of crying. There had been too many tears.

Too many tears; yet tears are insufficient. Marriage ought to be an adult state. You can’t just think about it from the bruised vantage of’ your youthful alienations. The gay movement in the US makes a massive fetish of childhood: bullied kids, suicidal kids, kids in desperate need of role models. Why? Not just because of others’ terrible stories but because, for lots of us, childhood is where we cried our hardest tears, suffered our deepest wounds. Yet if your wonder years were your worst, it’s because for you, it got better. Those who feel that way are the lucky who emerged alive and prospered; left home, made it to a good school, won a plum job at an NGO or the New York Times, acquired a spouse, kids of their own, a house with a deck, a dog. A rich and happy adulthood sets you apart from the unprivileged whose losses persisted longer: those in jail for sex work or in immigration detention, those rejected by landlords or lovers or their own children, those who can’t get a job or health insurance, those who die young – younger than they ever should, but not young enough to qualify as poster kids, not young enough to have the prized and perfect innocence of childhood.

The week after the Supreme Court decision, the big issue in Gay World wasn’t what we’d fight next – job discrimination? violence? It was a photo of a 10-year-old boy, crying (so the caption said) because “I’m homosexual, and I’m afraid about what my future will be and that people won’t like me.” It went viral after Hillary Clinton herself stepped in to reassure him, on Facebook, ‘Your future is going to be amazing.” This said little about the kid, or Clinton, but lots about American gay men. Their torrent of identification, a flood that obliterated questions (was the photo real? Could a 10-year-old really consent to having it posted?), came because they saw themselves as that vulnerable child, under the cracked shell of adults whose movement had just won a historic triumph. It also revealed a vision of politics. Their president isn’t supposed to be a grownup speaking to grownups, someone you negotiate or argue with; the ideal president is an indulgent parent, patting your head and crooning There, there. Such infantilization not just of selves but of a whole social movement is strange. Why should Frank Bruni, resident gay at the sober New York Times, filter his whole hazy, sentimental reaction to the Supreme Court’s ukase through “one 12-year-old boy” (“He has noticed that his heart beats faster not for girls but for other boys, and the sensation is as lonely and terrifying as it is intense”)?

This is memory politics, Proust mixed uneasily with Martin Luther King. Our rights are about more than our unhappy childhoods. They speak to our maturity, our lives now. Marriage is not just a kiss the State bestows to make it better. We are not wounded children needing solace, but adults whose lives have already taken shape. It’s in the frame of our grown-up decisions and defeats that we must measure what we’ve won, what marriage really means.

II. Recognition

The marriage man: Justice Kennedy

The marriage man: Justice Kennedy

So I turned to the decision itself. What did those nine constipated guardians say to us? When I downloaded Obergefell v Hodges, the first thing that sprang out at me, honest to God, was this footnote:

People may choose to marry or not to marry. The decision to do so does not make one person more ““noble”” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.

That’s a good point, I thought, and wondered how it fit into Justice Kennedy’s argument. Then I realized it was from Clarence Thomas’s dissent — responding to Kennedy’s suggestion “that marriage confers “’nobility’ on individuals.”

To agree with Thomas makes me want to scrub myself. Yet it points to a problem with Kennedy’s writing, variously condemned, even by his supporters, as “gauzy,” “vague,” or “muddled.” His verbiage is a forest seemingly uncharted by any dictionary, where terms like “nobility,” “dignity,” “liberty” roam without the taming governance of definitions. It’s like being in Jurassic Park, with large words lumbering menacingly through the undergrowth; you can take their pictures, but you can’t get close enough to find out what they mean. Non-lawyers, if they like the end result, enjoy the rousing rhetoric. Lawyers, even lefty ones, may secretly sympathize with Justice Scalia, whose scurrilous dissent said of one Kennedy sentence that “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Waiter, there's a Constitution in my fortune cookie: Justice Scalia

Waiter, there’s a Kennedy in my cookie: Justice Scalia

Kennedy’s opinions sometimes seem not so much at odds with precedent as at an angle to it. Over the last hundred or so years, American law developed set ways of determining whether unequal treatment is lawful. These are the famous three levels of review: rational basis (for evaluating the intrusiveness of economic regulation, for instance); intermediate scrutiny (for discrimination claims based on gender); strict scrutiny (for claims based on race). In rational-basis review, courts are very deferential to what the state is doing; in higher levels of scrutiny, states need to show they have an “important” or “compelling” interest in classifying people – and they often fail. Kennedy’s decisions on sexual orientation mostly avoid referring to these standards at all. He resembles an autist savant who refuses to use either long division or short division, but solves math problems by staring at his knee. Maybe he’s right, but students learn nothing from the way he got there.

Animus in California: How the Grinch stole marriage

Animus in California: How the Grinch stole marriage

Instead of scrutiny, Kennedy introduces the idea of “animus”: when laws treat people differently based on pure dislike. Any restriction based on animus is impermissible. The problem is, though, that legislators and – especially – lower courts need to fit Kennedy’s precedents, and his language on “animus,” back into the standards of scrutiny they still use to make decisions. Obergefell strongly suggests that sexual-orientation discrimination should receive strict scrutiny, but as Scott Lemieux writes, “Kennedy inexplicably refuses to say so.” His reticence

leaves open the legal possibility that marriage is the only form of discrimination against same-sex people that is covered by the 14th Amendment. But LGBT people face many other types of discrimination – in public accommodations and in employment, for example – that now may have to be fought out case by never-ending case in the lower courts.

It seems improbable that those other discriminations will finally pass muster. But the lawyers who grouse about Kennedy’s vagueness will earn lots of money from the confusion; and the non-lawyers who celebrate should realize this sweeping decision is less sweeping than it could have been.

In fact, I am not sure that Kennedy is muddled. “Animus,” which flowered in Kennedy’s writing before marriage became an issue, nonetheless seems to capture something essential to the marriage struggles, and perhaps to some other contemporary forms of discrimination. If I pass an old-style law that makes it harder for black people to get jobs, it’s clear what I want: for white people to get more jobs. With the rash of anti-marriage amendments, it’s different: no one ever believed that less marriage for the gays would mean more to go around for others. It’s not discrimination that benefits anybody. The aim was solely to say to gays and lesbians, You don’t belong.

In targeting You don’t belong laws, Kennedy is constructing a jurisprudence about dignity and symbolic slights, where the intent of the legislation is crucial. This is a jurisprudence for a politics of recognition, in the terms that Nancy Fraser has made famous. Fraser drew a distinction between two visions of justice, dividing “the forces of progressive politics” into “two camps.” An older vision of “redistribution” draws on “traditions of egalitarian, labor and socialist organizing”; “political actors aligned with this orientation seek a more just allocation of resources and goods.” On the other side, the proponents of  “recognition” talk about diversity and difference. They don’t want goods or benefits; they want respect. It’s a politics more attuned to symbolic insult than material inequality. And 

the language of distribution is less salient today. … Claims for the recognition of difference now drive many of the world’s social conflicts, from campaigns for national sovereignty and subnational autonomy, to battles around multiculturalism… They have also become predominant within social movements such as feminism, which had previously foregrounded the redistribution of resources. Why do so many movements couch their claims in the idiom of recognition?

Hold that question. Enough for now that Kennedy couches his decision in that idiom: he addresses people who want not resources and benefits, but respect and solace. He largely imagines intangible rewards, hence the cloudy ungraspablity of his nouns; but his arguments are philosophically intelligible even if not always legally clear.

III. Liberty

Iconologia depicting the Allegory of Liberty, by Cesare Ripa (c. 1560 – c. 1622)

Iconologia depicting the Allegory of Liberty, by Cesare Ripa (c. 1560 – c. 1622)

Liberty is one of Anthony Kennedy’s biggest words. As he pulls out the organ-stops it swells to an anthropological attribute rather than a political value: every person’s ability not just to do things but to decide who they are.

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

(This is the sentence that drew Scalia’s scorn above; but if I found that in my fortune cookie, I’d be happy.) Kennedy’s most important lines, perhaps, are those where he draws an expansive picture of the ways that liberty is implicated in the intimate realm of life:

Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.

Elevating autonomy and choice this way is powerful. It underpins what is, for lawyers, probably the most unsettling part of Kennedy’s opinion: his preference for using a substantive due process argument, rather than an equal protection one. Substantive due process is one of the most controversial doctrines in American law. It is an interpretation of the Fourteenth Amendment that conservatives and liberals alike have used to identify rights — “liberties” — not specifically enumerated in the Constitution. For Kennedy, the liberty to marry is one of of these. The framers didn’t mention it; but surely it must be in our founding document, mute yet essential. Whereas an equal protection argument contends the state should treat everyone equally — if some can marry, all should be able to — a substantive due process approach holds, with different emphasis, that marriage is so silently fundamental no one should be denied it. Equal protection would allow a government, in principle, to deny marriage equally to everybody across the board. But if marriage is a substantive due process right, it’s inescapable: states must let people marry. Lots of lawyers mistrust this sleight of hand and the stealth freedoms it uncovers. But it’s quite consistent with Kennedy’s belief that what’s at stake in same-sex marriage – and in LGBT rights in general – is less protecting equality than respecting every person’s decision-making power.

It’s this way of conceiving liberty that Clarence Thomas despises. He returns to old sources to assert a minimalist liberty as simple “freedom from physical restraint.” In its narrowest sense – he’s citing Blackstone here –

“liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”

“Or” – he’s in the library again – “as one scholar put it in 1776, “[T]he common idea of liberty is merely negative.” In the marriage cases, nobody kept anybody from going anywhere. “Petitioners cannot claim, under the most plausible definition of ‘liberty,’ that they have been imprisoned or physically restrained.” Nothing to see here; move along.

Isaiah Berlin: Are you telling me I am not free to smoke here?

Isaiah Berlin: Are you telling me I am not free to smoke here?

This is, in fact, a very old dispute. Thomas’ cantankerousness clarifies what Kennedy is talking about. Thomas defends negative liberty, as Isaiah Berlin classically defined it: “By being free in this sense I mean not being interfered with by others. “ A long philosophical tradition distinguishes this from positive liberty, which conveys not only absence of restraint but the capacity for action, the possession of personal power. Berlin wrote:

The “positive” sense of the word “liberty” derives from the wish on the part of the individual to be his own master. I wish my decisions to depend on myself, not on external forces of whatever kind. … I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside. I wish to be a doer – deciding, not being decided for, self-directed and not acted upon by external nature or by other men.

The two definitions can shade into one another, but they are different. In the one, liberty is solitude; in the other it is sovereignty. In the frame of European history, negative liberty is the freedom of the freed serf or the masterless man, no longer tied to the land. Positive liberty is the freedom of the master, endowed with authority and means to work his will in the world.

Kennedy is emphatically a partisan of positive liberty. His arguments draw strength from its strengths: its concern, for instance, for what governments and societies must do to enable independent and competent choices. His opinions are also endangered by its weaknesses. Isaiah Berlin has traced better than any other thinker the paradoxes of positive liberty: the way its exaltation of human capacities can turn into a proscriptive mandate that those capacities be properly used.

Positive liberty behaving negatively: Esprit-Antoine Gibelin, Libertas Americana (1783)

Positive liberty behaving negatively: Libertas Americana by Esprit-Antoine Gibelin (1783)

Negative liberty draws a veil over what you do with your freedom; it leaves you alone, and it’s unconcerned about the consequences as long as you leave others alone too. Positive liberty, though, closes no curtains. It presupposes that, given freedom, you will act. The question of how, of what uses you propose for this enabled freedom, becomes urgent. Left to themselves, humans will do and choose different things. Yet this offends against a belief that both values and society should be rational. Shouldn’t real self-mastery, sovereignty over the self, be the discipline of choosing the right thing, not the wrong?

Positive liberty tends to collapses into monism, as Berlin says, “the faith in a single criterion”: the belief there is one overriding value people ought to be pursuing, one that redeems their power to choose by its syllogistic superiority as a choice. In this vision

the rational ends of our “true” natures must coincide, or be made to coincide, however, violently our poor, ignorant, desire-ridden, passionate, empirical selves may cry out against this process … Kant tells us that when “the individual has entirely abandoned his wild, lawless freedom, to find it again, unimpaired, in a state of dependence according to law,”’ that alone is true freedom, “for this dependence is the work of my own will acting as a lawgiver.” Liberty, so far from being incompatible with authority, becomes virtually identical with it.

That way lies “the vivisection of human societies into some fixed pattern dictated by our fallible understanding of a largely imaginary past or a wholly imaginary future.”

If Kennedy’s understanding of liberty risks sanctifying certain choices over others, it is a fortuity perhaps increased by his use of substantive due process.  One reading of substantive due process doctrine is that if certain rights didn’t actually get enumerated in the Constitution, it must be because they were so fundamental and obvious that the framers saw no need to mention them. Kennedy comes very close to saying this about marriage. If a right is that basic to being American, or human, then woe betide anyone who doesn’t use it.

How much does Kennedy’s idea of liberty remain neutral about the values people choose? How much does it regress into the faith that “All values can be graded on one scale, so that it is a mere matter of inspection to determine the highest” – and that true liberty consists in choosing the highest?

IV. Dignity

Iconologia depicting the Allegory of Dignity, by Cesare Ripa (c. 1560, – c. 1622)

Iconologia depicting the Allegory of Dignity, by Cesare Ripa (c. 1560 – c. 1622)

Dignity is another of Kennedy’s grandest words, and nowhere more than in deciding whether the government will give gays “the basic dignity of recognizing” their marriages. For Kennedy, the greatest injustice lesbians and gays have suffered is a continuous insult to their human dignity. Over generations, he writes,

many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions.

And dignity is especially at stake in the state’s regulation of couples, for “There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”

Dignity is also another word Kennedy abjures defining. Nor is it a clear term of art in US jurisprudence, though Kenji Yoshino finds that the Supreme Court has used it in more than 900 opinions, and that — predictably, in an age of recognition — “its use of the word has increased.” Kennedy is “particularly drawn to it,” Yoshino writes. “When Justice Kennedy ascribes dignity to an entity, that entity generally prevails.”

Yet, as Leslie Meltzer Henry observes, for a word so often bandied about in constitutional law, “its importance, meaning, and function are commonly presupposed but rarely articulated.” Henry considers its legal uses diverse, flexible, “dynamic and context-driven.” This is a way of saying “vague.” The vagueness allows Clarence Thomas to claim that Kennedy sees dignity solely as something the government gives you. Maintaining to the contrary that dignity is innate, Thomas heads into an already notorious peroration:

[H]uman dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. … The government cannot bestow dignity, and it cannot take it away.

Dignity: Head of a Roman, 1st century BCE

Dignity: Head of a Roman, 1st century BCE

Kennedy’s own idea of dignity is in fact evident enough, and stands on firmer philosophical ground than Thomas. He doesn’t see it as a state endowment, but neither does he treat it as some mystic quiddity or innere Emigration that even slavery can’t strip away. Dignity is closely connected with his philosophy of liberty as choice. The question is whether it’s threatened by the same dangers: whether his reliance on the word and concept risks undermining the legal framework of freedom he is trying to advance.

Some potted history here is useful. “Dignity” comes from the Latin dignitas, itself derived from the noun decus, which means honor, glory, or distinction — and also ornament, as in medal or decoration. Another of its descendants in English is “decent.” In Latin, writes Mette Lebech, dignitas was a function of one’s status:

In the Roman Republic as well as in the succeeding Empire, Dignitas was the standing of the one who commanded respect, whether because of his political, military or administrative achievements.

To Rome, dignity marked out difference within a hierarchy, and this remained its core meaning through the Middle Ages. The notion of dignity as a quality of all humans, detached from any particular class or role, only fully emerged in the Renaissance. Its most eloquent articulation was by the 15th-century philosopher Pico della Mirandola, in his immensely famous oration On the Dignity of Man. Dignity lay in the universal human capacity to choose and change, to decide about yourself, to shift your very status on the great Chain of Being:

The happiness of man! To man it is allowed to be whatever he chooses to be! As soon as an animal is born, it brings out of its mother’s womb all that it will ever possess. … [But to] Man, when he entered life, the Father gave the seeds of every kind and every way of life possible. He fashions and transforms himself into any fleshly form and assumes the character of any creature whatsoever.

Not, however, a dignified hat: Pico della Mirandola by Cristofano dell'Altissimo (1525-1605)

Not, however, a dignified hat: Pico della Mirandola, by Cristofano dell’Altissimo (1525-1605)

Clearly this is ancestral to how Kennedy regards dignity; and it also suggests how he links dignity to liberty. For Kennedy, liberty includes being able to choose who we are or will become, shaping our identities rather than just taking what’s given. Dignity comes when these choices can be acted on, witnessed, and recognized. This is an understanding of human dignity employed by philosophers to the present day. I often cite Tzvetan Todorov’s remarkable study of moral life in Hitler’s concentration camps; he sees dignity as the capacity to “act out the strength of one’s own will, to exert through one’s initiative some influence, however minimal, on one’s surroundings. … It is not enough simply to decide to acquire dignity: that decision must give rise to an act that is visible to others (even if they are not actually there to see it).” The univers concentrationnaire was geared and calibrated to destroy this capacity. To decide and to act on a decision in the camps often meant: to decide to die. Yet for many, preserving some small area where dignified action was possible gave life its only meaning. For some, their last act of dignity was the only one by which they would be remembered.

In Kennedy’s marriage opinion, though, dignity plays a peculiar role. “The right to personal choice regarding marriage is inherent in the concept of individual autonomy,” he writes. But he doesn’t stop there. The “choice regarding marriage” isn’t neutral. The “centrality of marriage to the human condition” makes it far more than just an option. The dignity of marriage seems not to open possibilities, but to dictate one above all.

The prose is full of fulsome praise for people who decide one way rather than the other. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.” Indeed, marrying boosts your dignity: “The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.”

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. … Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone … Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

And so on. It’s like Sondheim’s Company sung by the Mormon Tabernacle Choir. With all this noise, how can any dignified person decide against marrying?

“Being Alive” from Company, sung by Anthony Kennedy and the Supremes

One can see in the contrast with reproductive rights how heavily weighted a choice marriage is to Kennedy. He calls decisions about contraception and procreation “among the most intimate that an individual can make,” and “protected by the Constitution.” These words posit procreating and not-procreating as equivalent, neutral choices, veiled by their intimacy and importance from legal and moral valuation. Indeed, the right to contraception was only established in American law through long struggles asserting it was not less dignified, not less moral or proper, than becoming pregnant. But Kennedy offers no equivalent opposite to choosing marriage. He wastes no words praising the dignity of the single life. Not to elect marriage, he says, is “to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

Kennedy and the concepts he uses are divided, torn. His idea of liberty as self-determination collapses back toward the belief that some decisions are better than others, because they show the self’s mastery over what is irrational and wrong. His idea of dignity is the means for the implosion: it folds inadvertently into an older sense that some life-ways are superior in their rationality and rightfulness. Dignity-as-choice melts back into dignity-as-distinction. Kennedy obfuscates the difference while keeping them shoehorned in the same word.

And this again raises the question: does the dignity Kennedy reads in marriage reflect what it means to you, to me, to the society he writes for?

V. The Wrong Side of History

Angels of history, II: Meme from Freedom to Marry, a US NGO

Angels of history: Meme from Freedom to Marry, a US NGO

Kennedy talks about liberty and choice; but backhandedly he introduces the idea that some choices are better, more dignified, more “transcendent” than others. His libertarian language jars gratingly with a uncritical and coercive adulation of one particular life decision, marriage.

Frustrating Kennedy’s incoherence may be, but it isn’t accidental. It inheres in the philosophical roots of his terminology. His idea of “liberty” is historically prone to elevating certain uses of freedom above others. Above all, though, Kennedy’s legacy is a jurisprudence of recognition. “Dignity” is essential to it; the injustices he finds especially intolerable, the animus-driven laws he condemns, deny the desires of people to be recognized in their dignity, with the identities and lives they’ve made. Dignity entails decision-making power for Kennedy. But an older, hierarchical implication keeps peeping through. And when attached to marriage the word turns invidious, augmenting the dignity of some – while leaving other choices, other relationships, rhetorically in the ditch.

The twinned themes of dignity and recognition have, through marriage, become integral to gay politics. In the US as in other countries, the whole campaign for marriage has revolved round recognition, the affirmation of dignity rather than the allocation of benefits. The financial and material aspects of marriage might be crucial to actual people, and were sometimes vital to litigation (inheritance-tax rights, for instance, were central to the 2013 Windsor decision), but were downplayed by general agreement throughout the struggle, in favor of a greeting-card emphasis on “love” and its starved aspiration for due respect. Other LGBT needs that had clear material implications or implied redistributing goods or services (employment protections, or housing rights, or palpable and particular rights of citizenship like having your ID reflect who you are) were told to wait, while a goal constructed in symbolic and immaterial terms moved to the head of the line.

This preference for symbolism is pervasive in gay life now; it shows even in small ways. It’s fascinating that the gays go gaga over Ruth Bader Ginsberg, a judge of great intellectual power but one who has largely ceded the field of sexual orientation to Justice Kennedy. It’s because, unlike Kennedy (taciturn, undemonstrative, and unfriendly to unicorns), when she leaves the courtroom she says nice things about them, and even presides over same-sex weddings. She offers recognition, which is even more important somehow than tangible victories on the bench.

Dignity

Dignity

I’m not so much criticizing this strategy as asking what happens next. People are already hawking their ideas for “new priorities” for the US LGBT movement (though some precipitately want to shut it down completely); but there’s little discussion about how you can wrench it back to a focus on material goals, when the whole movement has gone off in pursuit of the ghostly allurements of symbolic affirmation. And there’s little concern that “dignity” too can be a zero-sum game, with denigration as its reverse side. The respect your decisions gain can tacitly deepen disrespect for others’.

Kennedy’s inflation of marriage into a “transcendent” choice is already echoing. It gives rise to a sudden burst of judgmental Comstockery among gay people, as though a little government attention turned them all into Southern Baptist preachers (hypocrisy included). Take, for instance, this month’s reactions to the word that the black sheep of the Palin clan was pregnant again “out of wedlock.” The gays were indignant; their first week into wedlock, and already they think anybody outside it must be a crack whore. I can’t tell you how strange it feels to see this meme all over the Internet – stranger, too, when gay friends who I know have spent their nights on Grindr flaunt it on their Facebook pages:

10390032_10155708641745043_8762877488175201191_nThis moralistic misogyny should be beneath the dignity of people who recently suffered from the same censorious opprobrium. I think Neil Patrick Harris is a nice person and Bristol Palin is not. I know, though, that neither their sex lives nor her single status have anything to do with how good they’ll be as parents. And I’m as sure as I am of anything on earth that a human rights movement enlisted in the slut-shaming brigade has nothing, zero, to do with human rights any more.

If the gays are acting blind as any right-wing pundit, it’s paradoxically the right-wingers who see clearly the multiple ways people define relationships now – even if they only invoke this variety as a drone target for their Jeremiads.

Ideal marriage (child included, dogs and pheasants optional): Queen Victoria and Prince Albert, Painted by Sir Edwin Landseer (1840-43)

Ideal marriage (dogs and pheasants optional, child included): Queen Victoria and Prince Albert, painted by Sir Edwin Landseer (1843)

Consider this question: are there legal means by which the state could, and should, recognize relationships with multiple partners? The gays (and many nice, liberal supporters) wax furious if anyone suggests this might be a logical extension of the liberties in marriage: as if, having gone two-by-two into the ark, they want to hoist the gangway and let the three-way perverts drown. What’s astonishing is to see the liberals categorically deny that such relationships exist in modern societies at all. Justice Alito brought it up during the marriage hearing, trying to imagine polygamy in a contemporary context: for instance, “four people, two men and two women — it’s not the sort of polygamous relationship, polygamous marriages that existed in other societies.” The New Yorker was flatly incredulous. Such a family, its reporter wrote, is “one that exists in Alitoland” alone.

I didn’t know I lived in Alitoland. But I do know many households like the ones Alito described: the lesbian who’s bought a home (and is bringing up a child) with her current lover, her former lover, and her current lover’s former lover; the trans man – prim as your favorite uncle – who’s raised his kids with his two cis female partners; the husband who lives with his wife and his wife’s lesbian mate. You can perfectly well say these aren’t common, but you won’t know, because these arrangements tend not to turn up on census forms. It’s a strange world when a George-W.-Bush-appointed Supreme Court justice may be more in touch than the New Yorker with the way people live now.

Kennedy’s opinion, in fact, doesn’t even reflect the diversity of life choices on the Supreme Court. The pitiable, sad unmarried people whom he calls “condemned to loneliness” include two of the four justices who voted with him. A colleague of mine wonders what they really thought about this language. Probably they see it as what Scalia called “the price of a fifth vote.” I wonder rather more what Kennedy really thinks as he looks at them.

And this is what disappoints about Kennedy’s words, and the exultation greeting them. They misunderstand radically what marriage actually means in the modern world, and what made its expansion possible. Marriage has not opened to lesbian and gay couples because it is “profound” or “transcendent.” It expanded because it isn’t that any more. The marriage decision is possible because marriage means less to us, because the last scraps of its exclusionary dignity are disappearing. Marriage is becoming simply one choice among others; the rhetoric trying to reclaim its sanctity is on the wrong side of history.

Graphs show this better than prose can. Worldwide, fewer and fewer are making that transcendent choice.

Marriage rate in the United States, 1946-2010; chart by the Sacramento Bee

Marriage rate in the United States, 1946-2010; chart by the Sacramento Bee

The plunge among young US adults (aged 25-34) has been particularly steady:

Statistics across Europe show the same trend.

It’s not just the decaying West. What’s striking is that in another country I know well, highly traditional Egypt, the rate has also fallen. The decline was less stark and steady, but the marriage rate dropped from 10.8 per 1000 population in 1952, to 7.3 in 2006.

Graph from

Graph from “Marriage Patterns in Egypt,” by
Magued Osman and Hanan Girgis, at http://iussp2009.princeton.edu/papers/91490

But the fall has been more dramatic in Egypt’s two richest urban areas; in Alexandria, the figures sank to half the overall US rate. Evidently people’s economic and social independence plays a crucial role. (The customary Egyptian explanation for the decline is that economic hardships make men reluctant to marry. For a century, in fact, Cairene intellectuals have been warning about a “marriage crisis” caused by men’s ever-direr financial powerlessness. Statistics suggest otherwise. Recent rises in Egypt’s marriage rate — a 2.7% increase in 2012, for instance — coincided with severe economic dislocation. It seems plausible that some want to postpone or avoid marriage as long as they can afford their independence, and turn to its strictures as a shelter only in hard times. When they can, they choose to be single.)

Graph from

Graph from “Marriage Patterns in Egypt,” by
Magued Osman and Hanan Girgis, at http://iussp2009.princeton.edu/papers/91490

There are as many explanations for all this as there are ideologies. Right now it’s the consequences I care about. Marriage is no longer an inescapable value. It’s been demystified: an option, not an obligation. The sense that it is a choice is precisely what created the pressure to allow others to choose it.  The gays were on the right side of this historical process, in demanding that marriage be expanded; they surfed the graphs I’ve shown. The broadening of choice is something to rejoice in. But to continue treating marriage as a transcendent value rather than a contingent possibility is to stand on the wrong side.

People today are choosing and living in many kinds of relationships of care — and building new ones. The law’s challenge is to find how to recognize and protect these, because the law’s job is to look after the ways people actually live. Hieratic talk about the primacy of two-person marriage may postpone this, but can’t avoid the need. In the last decade a few documents outlined vast gaps in what the law recognizes: a detailed Law Commission of Canada report, Beyond Conjugalityand a manifesto by US activists, Beyond Marriage. The latter listed some of the “other kinds of kinship relationship, households, and families” that need protection: among them,

  • Senior citizens living together, serving as each otherʼs caregivers, partners, and/or constructed families;
  • Committed households in which there is more than one conjugal partner;
  • Single parent households;
  • Extended families (especially in particular immigrant populations) living under one roof, whose members care for one another;
  • Queer couples who decide to jointly create and raise a child with another queer person or couple, in two households;
  • Close friends and siblings who live together in long-term, committed, non-conjugal relationships, serving as each otherʼs primary support and caregivers;
  • Care-giving and partnership relationships that have been developed to provide support systems to those living with HIV/AIDS.

Many today may want to raise their children in a community of shared responsibilities rather than a nuclear household. Many today may want decisions about their health or death made within a circle of friends, not by a single partner. Accommodating this in law is an immanent, not a transcendent necessity.

When I call the loss of marriage’s transcendence historically irreversible, I mean that in a democratic world transcendence itself cannot be sustained. It’s curious that the donnish, tweedy Isaiah Berlin should have expounded this postmodern insight with such urgency. The philosopher John Gray summarizes what Berlin saw: that ultimate values

are many, they often come into conflict with one another and are uncombinable in a single human being or a single society, and that in many of such conflicts there is no overarching standard whereby the competing claims of such ultimate values are rationally arbitrable. Conflicts among such values are among incommensurables, and the choices we make among them are radical and tragic choices. There is, then, no summum bonum or logos, no Aristotelian mean or Platonic form of the good, no perfect form of human life, which we may never achieve but towards which we struggle, no measuring rod on which different forms of human life encompassing different and uncombinable goods can be ranked.

Gray writes that this “strikes a death-blow to the central, classical, Western tradition,” with its belief that all positive values are rationally consistent – “and, it must be added, to the project of the Enlightenment.” That may be too much. Yet to recognize the pluralism of values is to realize in the most rendingly personal way that we live in a disenchanted world. No one hands us final answers. There is no “most profound” or “highest” life-way. Some people choose the vita activa, some the vita contemplativa. Some discover more purpose in public life than private life; to some, a tennis match matters more than a job promotion. Some people locate the highest value in a single uxorious relationship, some in the migratory ecstasies of sex; some will find the value of sex in mystical union, some in its market price. For some, love is the true meaning of marriage. For some, it’s taxes.

Berlin wrote:

It may be that the idea of freedom to choose ends without claiming eternal validity for them, and the pluralism of values connected with this, is only the late fruit of our declining capitalist civilization: an idea which remote ages and primitive societies have not recognized, and one which posterity will regard with curiosity, even sympathy, but little comprehension. This may be so; but no skeptical conclusions seem to me to follow. … Indeed, our very desire for guarantees that our values are eternal and secured in some objective heaven is perhaps only a craving for the certainties of childhood or the absolute values of our primitive past. … To demand [such guarantees] is perhaps a deep and incurable metaphysical need; but to allow such a need to determine one’s practice is a symptom of an equally deep, and more dangerous, moral and political immaturity.

That rebuke to our childishness is the truth we need.

Dignity, again

Dignity, again

PREVENT free speech: For governments, it’s easy

This letter appeared in the Independent (UK) today:

We, the undersigned, take issue with the government’s Prevent strategy and its statutory implementation through the Counter-Terrorism and Security Act 2015 for the following reasons:

1. The latest addition to the United Kingdom’s counter-terrorism framework comes in the form of the Counter-Terrorism and Security Act 2015 (CTS Act). The CTS Act has placed PREVENT on a statutory footing for public bodies to prevent people from being drawn into terrorism by tackling what is claimed to be ‘extremist ideology’. In practice, this will mean that individuals working within statutory organisations must report individuals suspected of being ‘potential terrorists’ to external bodies for ‘de-radicalisation’.

2. The way that PREVENT conceptualises ‘radicalisation’ and ‘extremism’ is based on the unsubstantiated view that religious ideology is the primary driving factor for terrorism. Academic research suggests that social, economic and political factors, as well as social exclusion, play a more central role in driving political violence than ideology. Indeed, ideology only becomes appealing when social, economic and political grievances give it legitimacy. Therefore, addressing these issues would lessen the appeal of ideology.

3. However, PREVENT remains fixated on ideology as the primary driver of terrorism. Inevitably, this has meant a focus on religious interaction and Islamic symbolism to assess radicalisation. For example, growing a beard, wearing a hijab or mixing with those who believe Islam has a comprehensive political philosophy are key markers used to identify ‘potential’ terrorism. This serves to reinforce a prejudicial worldview that perceives Islam to be a retrograde and oppressive religion that threatens the West. PREVENT reinforces an ‘us’ and ‘them’ view of the world, divides communities, and sows mistrust of Muslims.

4. While much of the PREVENT policy is aimed at those suspected of ‘Islamist extremism’ and far-right activity, there is genuine concern that other groups will also be affected by such policies, such as anti-austerity and environmental campaigners – largely those engaged in political dissent.

5. Without due reconsideration of PREVENT’s poor reputation, the police and government have attempted to give the programme a veneer of legitimacy by expressing it in the language of ‘safeguarding’. Not only does this depoliticise the issue of radicalisation, it shifts attention away from grievances that drive individuals towards an ideology that legitimises political violence.

6. PREVENT will have a chilling effect on open debate, free speech and political dissent. It will create an environment in which political change can no longer be discussed openly, and will withdraw to unsupervised spaces. Therefore, PREVENT will make us less safe.

7. We believe that PREVENT has failed not only as a strategy but also the very communities it seeks to protect. Instead of blindly attempting to strengthen this project, we call on the government to end its ineffective PREVENT policy and rather adopt an approach that is based on dialogue and openness.

The full list of signatories is here.

PREVENT (originally Preventing Violent Extremism) is the UK’s government’s flagship program for winning hearts and minds in Vietnam keeping people from going off and turning terrorist. Repeatedly revised and relaunched, it’s one of four prongs of the country’s post-9/11 domestic strategyThe prongs alliterate in a way suggesting bureaucrats with notepads and nothing else to do: “Prepare for attacks, Protect the public, Pursue the attackers and Prevent their radicalization.” (For attackers, the latter comes a bit too late.) The “P” that’s missing is Police. LIke the others, PREVENT is about police power. It works by surveilling marginal, distrusted, and brown communities. There’s no way of measuring how well it’s met its goals, because it has no concrete goals, no benchmarks. Its great success has been the one not mentioned in the glossy pamphlets: it’s contributed to alienating Muslims from society and state, one tenable definition of “radicalization.” A system of surveillance that publicly and legally singles out a minority inevitably makes that minority more marginal, less equal participants in public life: more subjects, less citizens. As in some shadow story by Paul Auster or Robbe-Grillet, the government seeks a criminal that is itself.

Diagram allegedly explaining PREVENT strategy, by the UK Association of Chief Police Officers (ACPO). Aside from its resemblance to the secret Illuminati symbolism on the US dollar bill, I have no idea what any of this means.

Diagram allegedly explaining PREVENT strategy, by the UK Association of Chief Police Officers (ACPO). Aside from its resemblance to the secret Illuminati symbolism on the US dollar bill, I have no idea what any of this means.

This March, Dal Babu, a former chief superintendent of the Metropolitan Police, told the BBC he fully endorsed the two most widespread criticisms. First, PREVENT places itself beyond bureaucratic standards of success or failure. “A huge amount of money has been spent on this. At a time when we have limited resources we really need to make sure that we measure it.” Second, it stigmatizes  the people whose hearts and minds good will it’s supposed to be winning. It’s a “toxic brand” among Muslims; counter-extremist programs  “should not be putting Muslim community in a separate box when it comes to safeguarding vulnerable young people”:

He said there was a “spectacular lack of diversity” in local safeguarding services and police forces that meant many of those involved in Prevent did not understand the communities they serve, particularly in cities such as London and Birmingham.

PREVENT has, however, built up a constituency for itself, by ladling out money. And this is perhaps its real goal: not to combat terrorism, but to cultivate support for the metastasis of governmental power. Between 2005 and 2011 alone, Dominic Casciani writes, “almost £80m was spent on 1,000 schemes across 94 local authorities,” almost none of them properly evaluated. Rivers of largesse ran to dubious “anti-extremism” groups like the Quilliam Foundation, which claims to combat terrorist instincts among benighted Muslim immigrants, even though most Muslims in the UK seem to regard it with bafflement or disdain. The money keeps Quilliam’s founder, Maajid Nawaz, in an “immaculate and expensive suit,” upscale hotels, and the occasional strip club; whether it keeps Britain safer is a different proposition.

Trigger warning: Nicky Morgan, alarmed

Trigger warning: Nicky Morgan, alarmed by kids saying the darndest things

As with other insecure governments in repressive states, the UK regime’s response to failure has been to tighten the screws of repression. Rendering more people potential criminals makes their enemies your allies; with each opinion stamped Thoughtcrime, its opponents become your friends. The Cameron government is bidding for the gays’ support:

Children who speak out in class against homosexuality could be viewed as potential extremists under Government guidelines intended to prevent Islamist terrorism, Nicky Morgan, the education secretary, has suggested. Mrs Morgan said comments by children that they consider homosexuality to be “wrong” or “evil” could “trigger” concerns from teachers under guidance designed to help schools detect possible radicalisation.

They’ll have to put a playground in Gitmo before these people are through.

Quite a few prominent “free-speech advocates” in the UK are not signatories to the Independent letter. One wonders why.

Screen shot 2015-07-11 at 10.41.49 PMCAGE, founded by former Guantanamo inmate Moazzam Begg, mobilizes advocacy and activism in British Muslim communities against war-on-terror abuses. HT is the nonviolent pan-Islamic group Hizb ut Tahrir. You see the problem!  A letter complaining about repression of Muslim communities was signed by Muslims, the believing kind. If only it had been restricted to Church of England vicars, like a Barbara Pym novel! But once they’ve put their greasy fingerprints on the doc, the text goes straight to hell, like Tower Hamlets. Tom Holland, who is a sort of expert on why he dislikes Islam, agrees:

Screen shot 2015-07-11 at 10.41.21 PMThe whole point of PREVENT is: Muslims must not speak for themselves.

But some non-signatories simply had better things to do. Nick Cohen, for instance — the hero columnist who defends to the deadline to the death a writer’s right to Cohen’s an opinion — spent today Tweeting about a couple of columnists fired by a provincial newspaper.

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Peter Tatchell, that free-speech martyr, ignored the Independent letter. He was fighting the brutal goons of Sainsbury’s for oppressing a gay magazine.

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These guys tread gingerly round Muslims when the UK government threatens their free speech, particularly if the excuse is “extremism.” What upsets them way, way more are infringements in their own little pigeonholes or professions — a journalist sacked, a newsrack missing a magazine that headlines them. Such misplaced priorities miss the point. True, states have have less power relatively in this globalizing age, and non-state actors more. But regime upon regime compensates for its impotence to superintend its economy or decide its budget by clamping down on what it can control: privacy or opinion, patrolling intimacies, gagging voices. Those are the spheres where state power rampages unmitigated and unharnessed, in London as much as Lahore. The police are the true menace to free expression around the world. The supermarkets aren’t even close. Ignoring the Ideal-Typus of evil and focusing on its marginal manifestations only abets the repression. (Conspicuously, such freedom paladins also paid no attention to the WikiLeaks release this week of horrifying documents from an EU-based Internet-surveillance company, showing its sinister dealings with dictatorships on several continents. This is where private enterprise really kicks in, selling technology to the censors and torturers. Governments’ power to monitor what you say and think grows faster than Moore’s Law, thanks to their corporate accomplices.)

For some advocates, the threat to free speech is governments jailing, silencing, torturing people. For other advocates, the threat is a student club no-platforming their friends.

I know where I stand. Do you?

IF YOU SEE THIS WORD IN THE DICTIONARY, CALL THE POLICE NOW: Staffordshire Police banner for PREVENT, at http://www.staffordshire.police.uk/

IF YOU SEE THIS WORD IN THE DICTIONARY, CALL US NOW: Staffordshire Police banner for PREVENT, at http://www.staffordshire.police.uk/

The dignity of Greece

Crowds celebrate the

Crowds celebrate the “no” vote in Athens’ Syntagma Square, July 5, 2015. Photo from @socialistworker

It’s important to remember that a lot of people will suffer because of the vote last night. They would have suffered if the vote had gone “yes,” and they will suffer now because the vote went “no.” To imagine otherwise, to think that from here on it gets easy, is to slight the rooted courage of their rejection. Greeks were ready for defiance because they had already suffered for seven years, in the kind of agony rarely inflicted on a developed economy outside a science-fiction movie; but they know that things can get worse, and in the short run, they will. Theirs is the courage of the indignados and the damnés de la terre, those with their backs against the wall, the heroism twined with the knowledge of relentless Fate that Homer might have described had Homer been an economist with tenure:

ἀλλὰ φίλος θάνε καὶ σύ: τί ἦ ὀλοφύρεαι οὕτως;
κάτθανε καὶ Πάτροκλος, ὅ περ σέο πολλὸν ἀμείνων.

Come, friend, you too must die. Why moan about it so?
Even Patroclus died, a far, far better man than you.

Brave and unflinching, Greeks have earned the right to celebrate for a while in Syntagma Square. But the suffering isn’t over. The vicarious victory party now sending the British, or American, or even Spanish left into ecstasy – these revels where you laud starving others for audaciously doing what you didn’t dare to — ought to be tempered by a smidgen of humility and sorrow. After all, these are people who, unlike Greeks, know their ATMs will give them cash in the morning.

The left prides itself on empathy, on getting in the skins of others. Often, though, this means making them your sacrificial victims, singled out by History to play in a Hegelian Hunger Games; stars of your show whose sufferings you can colonize, projecting your emotions onto their hearts and lives. Conservatives never face this problem, since their empathy stops with themselves. For years I’ve thought that the paradigmatic right-wing response to almost anything, elegant in its brisk foreclosure, came from the incomparable racist John Derbyshire, who used to disgrace the pages of the US journal National Review. Reading about what he first took for a cruise ship disaster in the Red Sea, he “learned that the ship was in fact a ferry, the victims all Egyptians. I lost interest at once, and stopped reading. I don’t care about Egyptians.” By contrast, a leftist response would be to submerge your head in the bathwater, convince yourself you’d drowned, and then send a Tweet about it (#WeAreAllEgyptians). Neither answer helps.

“No” swept almost every regional unit of the country: Map of voting, by the Guardian

We’re not all Greeks. Only a select sodality of wounded societies have undergone what the Greeks did. The figures on Greece’s suffering don’t inform, they numb. Since 2008, the country’s gross domestic product withered by more than a quarter.  Incomes dropped by a third. Pensions were cut 40%, and often not paid at all. One in four Greeks is jobless, six of ten among youth. In Athens, 18,000 are estimated to be homeless – one-tenth of the city’s unemployed, 3% of its people.

Alex Andreou, who has been writing powerfully on the polity and the crisis, tells one story:

Last winter, I stood outside the Opera House in the centre of Athens looking at the posters in the window. I was approached by a well-dressed and immaculately groomed elderly lady. I moved to the side. I thought she wanted to pass. She didn’t. She asked me for a few euros because she was hungry. …

Her name was Magda and she was in her mid-seventies. She had worked as a teacher all her life. Her husband had been a college professor and died “mercifully long before we were reduced to this state,” as she put it. They paid their tax, national insurance and pension contributions straight out of the salary, like most people. They never cheated the state. They never took risks. They saved. …

In the first year of the crisis her widow’s pension top-up stopped. In the second and third her own pension was slashed in half. Downsizing was not an option – house prices had collapsed and there were no buyers. In the third year things got worse. “First, I sold my jewellery. Except this ring,” she said, stroking her wedding ring with her thumb. “Then, I sold the pictures and rugs. Then the good crockery and silver. Then most of the furniture. Now there is nothing left that anyone wants. Last month the super came and removed the radiators from my flat, because I hadn’t paid for communal fuel in so long. I feel so ashamed.”

“No” supporter in Syntagma Square on the night of July 5, 2015. Photo from @Stratosathens

Europe’s magnates say it’s simple: all about debts betrayed, bad faith. The Greeks didn’t keep their promises. But most Greeks did. They paid into the system; they believed the system would keep its promises to them. The system meant the government, their workplaces, even the oligarchs who profited from their labor. For most Greeks, it also meant Europe. From the start of Greece’s odyssey with the EU, even before membership in 1981, Europe had presented itself as guarantor of a level of prosperity that small nation-states could no longer secure on their own. Europe also promised to be the guardian of democracy. Greece’s entry into the EU, like Spain’s was a reward less for economic performance than for political change: for overthrowing, without violence and without vengeance, one of the most vicious dictatorships on the continent. Europe’s standards of governance would protect that freedom, won after a rending and sanguinary century.

And what did Greeks get for their faith? Betrayal. The EU, as the crisis cinched in, deliberately set out to bankrupt them: not just the state but the people, to take away their jobs, their winter fuel, their homes, even their gewgaws and their memories. Before the referendum, in a final indignity, the European Central Bank cut off Greek banks’ cash, to remind depositors of their abjection. As Andreou writes, it

acted to asphyxiate the Greek economy – the ultimate blackmail to force subordination. The money is there, in our accounts, but we cannot have access to it, because the overseers of our own banking system, the very people who some months ago issued guarantees of liquidity, have decided to deny liquidity. We have phantom money, but no real money. …

But Europe also showed its complete contempt for the democracy it promised to defend. “EU Institutions are now openly admitting that their aim is regime change. A coup d’état in everything but name, using banks instead of tanks and a corrupt media as the occupiers’ broadcaster.” The contempt continues tonight; that ballots were actually cast only makes the rulers angrier. Europe’s magnates spit in fury, red-faced on TV, their fat mouths taut with rage as if they’d swallowed tennis balls, chuffing and lobbing out names. They reduce everything to insults and personalities, because they’ve forgotten what it is like to deal with a people and not merely a person or two, to confront a collective will, to contend in a democracy. They think all decisions are made in small rooms by men in suits. “Tsipras and his government are leading the Greek people on a path of bitter abandonment and hopelessness,” said the vice-chancellor and economy minister of Germany, Sigmar Gabriel. He condemned the very act of Tsipras consulting the Greeks as a “rejection of the rules of the euro zone.” This man belongs to a party which still calls itself social democratic: much as Americans name their sports teams for the peoples they killed.

I  don't make the rules, but I can make you sorry: Sigmar Gabriel

I don’t make the rules, but I can make you sorry: Sigmar Gabriel

There are many lessons from the victory tonight. Three I take to heart.

The first is: nations matter. That might seem self-evident. But both in bureaucratic Europe and in the large swatches of the world where weak states prevail, it’s not. After the crisis struck in 2008, Greeks lost faith in the parties and leaders who had made the Republic in their image since 1975: they abandoned as illusive the nation they’d inherited. And they also lost their faith in the trans-national, overarching EU project that had said it would fix whatever the state got wrong. The disenchantment came the way Hemingway said you go bankrupt: “Two ways. Gradually, then suddenly.” Of course, the disenchantment was bankruptcy, pretty much.

When people lose faith that way in the arenas where they used to project their aspirations and play out their plans, it leaves you to ask: what kind of political space can function anymore? When both nation and trans-national institutions look like elaborate schemes to fuck you, what’s left? The anarchist movements so vital in Greece over the last seven years didn’t so much offer answers, as stark and inventive ways of posing the question. How can we act, and where? Are there places in society where we can actually accomplish change, gradual or disruptive, on any scale, maybe the more local and microscopic the better? And what is society anyway, in a catastrophe when it’s being torn apart? The testimonies of anarchists about the protest movements of 2008 and after, many collected by the editors of the excellent anthology Revolt and Crisis in Greece, suggest abysses of questioning that few of the Occupy movements elsewhere plumbed. There was a desire to disrupt the representations that made up existing, illusory political space; to use that rupture to constitute a new beginning; to challenge people to act – but how? Where?

Anarchist graffiti in Athens' Exarchia district depicts a history of state corruption. Photo by Alex Zaitchik at http://exiledonline.com/letter-from-athens-inside-the-greek-crisis-with-anarchists-and-the-radicalized-ex-middle-class/

Anarchist graffiti in Athens’ Exarchia district depicts a history of state corruption. Photo by Alex Zaitchik at http://exiledonline.com/letter-from-athens-inside-the-greek-crisis-with-anarchists-and-the-radicalized-ex-middle-class/

In one 2008 demo,

We interrupt a live state TV news broadcast and silently raise a banner to silence this representation of reality. We call on people to stop being viewers, to step out of their homes, to take to the streets, to resist. The black and white banner that some of us held for eighty seconds articulated no claim, no plan and no certainty. … Against the anxiousness to explain, against the guilt of failing to predict and foretell, to plan and rationalise and fit in, to summarise and nicely narrate violence, we opposed our living thrill of collective and direct action against an absurd but confident reality and said nothing, really.

As with many Situationist-inflected actions, it’s easy to make fun of this – particularly if your ATMs are working. But that’s wrong. The writer expresses exactly the moment when old political space has been sapped of meaning, and when the rupture required to break with it seems (because the exact shape of the new is unknown and unimagined) pointless, undirected, free from the chains of calculation. Novel political spaces were springing up like bubbles in the disruption and decay, but they were both too surprising and too ordinary to be described. The same writer says:

Before December [2008], each one of us lived in one place and worked in another and we were all divided into groups that formed clear networks of representation that ‘vov uld address themselves to other grmlps higher in the hierarchy that would decide when to vote, where to demonstrate, and how schools, workplaces, malls and bars, airports and supermarkets will be distributed around the country…. But once taking to the streets and feeling part of a living community of people, we couldn’t but occupy our cities in a different way. This experience of socialisation could not fit inside our offices and TV screens, coffee shops, shopping avenues, and secured square metres designed for us to live in. Our coming together violently spoiled the facades of all those urban places that actually cancel out our possibility of interaction and chain us to the role of a non-citizen …. [W]e did not transform the spaces given to us, but we created new ones where we could also let ourselves be created. …

Before December, we knew it already — no one was to be trusted, politics was corrupt, things were getting irreversibly worse all the time and there was nothing to do about it. But then we took to the streets, we found each other … Our relating to each other in an equal way and the spaces, words and actions we formed rejected common sense, because they were not just directed against the state; this was a politics of resistance and solidarity that was bluntly stateless.

That this inchoate Utopia culminated, years later, in the comparative banality of a referendum is from one perspective – the pure anarchist one — a story of spontaneity and subjectivity lost, corrupted by the demons of teleology and power. But from another vantage it’s the story of actions that were searching for their proper spaces, and eventually, piecemeal, found them. The loss of spontaneity was also its consummation. Those sudden solidarities stretched out over time and slowly built a new political sphere, a new space for acting.

Anarchist graffiti in Exarchia. Photo by Alex Zaitchik

Anarchist graffiti in Exarchia. Photo by Alex Zaitchik

The myriad small arenas of resistance and solidarity that the political collapse created were themselves creative. They came together. They became movements. The narrative of the last seven years – a history which, in its broadening scope and scale, its mounting urgency, truly has been epic – is how those forces have coalesced, negotiated, melded, expanded, till they speak in this crisis with the whole will of the people. And the people, the society, the nation – all those words returned, after all those years when they seemed to empty and befouled for people to use them. By capturing the nation-state, the movements were able to make it the redoubt for fighting back, battling the FührerBefehlen of the market and its enforcers. They repudiated the old, corrupt, discredited nation. But they recuperated the nation as a site of resistance.

How this growth happened in Greece over seven years should be something for coming generations of the left to study, the way our grandparents read Trotsky’s History of the Russian Revolution, or – the more humane among them – Victor Serge. But for now the point seems clear. We can still exalt those micro-spaces of anarchic, everyday resistance; or, alternatively, those big international solidarities wrapped like swaddling bands around the globe. But the nation, the people – those clunky, worn-down political imaginaries in between – have a privileged role, and can be regenerated. They serve a use. In their outcries alone lie the moral credibility and the practical power to check, even temporarily, the market’s encroachments.

The second lesson is: democracy matters.

A lot of people think it always matters, that no other kind of government is legitimate. In fact, though, it’s precisely the countries everybody calls democracies, in North America and Europe, that no longer rely on democratic process to give legitimacy to government decisions. Their laws and policies take their warrant from the market, not the deliberations of the governed. It’s the nasty dictatorships that keep pulling out the plebiscites and elections, the faked presidential ballots with the 98% wins, to lend the sheen of mandate and consent. They don’t know voting is irrelevant! They’re hicks stuck in the backwash of the trend. Democracies themselves, maturer and more orderly, have moved beyond democracy.

If you read one writer to help you understand Greece, make it Wolfgang Streeck. Streeck, a sociologist and political theorist, asks: Can democracy and capitalism still coexist? Contemporary capitalism poses this question itself, insisting it is above politics, that democratic decision-making is incompatible with its charm. “Mainstream economics has become obsessed with the ‘irresponsibility’ of opportunistic politicians who cater to an economically uneducated electorate by interfering with otherwise efficient markets, in pursuit of objectives—such as full employment and social justice—that truly free markets would in the long run deliver anyway, but must fail to deliver when distorted by politics.” But this perhaps understates the case, because the credo of capitalism today is that market logic will prevail even despite democratic interference. In Margaret Thatcher’s mantra, There Is No Alternative.

Maggie forecasts the future: Go vote for Hillary, or Bernie, or Carly Fiorina; I don't give a fuck. You'll still get TINA.

Maggie forecasts the future:
Yeah, vote for Bernie, Hillary, or Carly Fiorina:
I don’t give a bloody fuck. You’ll still get TINA.

The foreclosure of choice is self-fulfilling. States rig their systems to respond to markets, not citizens.

Increasingly capitalists say they can’t work without a framework of institutions completely insulated from the popular will: protection of markets and property rights constitutionally enshrined against discretionary political interference; independent regulatory authorities; central banks, firmly protected from electoral pressures; and international institutions, such as the European Commission or the European Court of Justice, that do not have to worry about popular re-election.

From this Fortress of Solitude, ‘‘the markets’ have begun to dictate in unprecedented ways what presumably sovereign and democratic states may still do for their citizens and what they must refuse them.”

Reification: Georg Lukacs in 1913

Not ready to be reified: Georg Lukács in 1913

Writers from Marx to Karl Polanyi saw a basic contradiction between two visions of justice and law: one in which societies can make shared decisions about goods and values, and one in which markets take over and distribute everything. Markets, their proponents say, should distribute everything because they’re “natural,” hence fair. In fact, they’re human artifacts. But they have the gift of becoming fetishes, of seeming eternal. They infiltrate the mind and don the sacred guise of givens, forces of nature. This ferocious permanence, this mythic immutability, has been constituent to capitalism, and the myth’s authority over imaginations expands as the markets do. Georg Lukács explored this just under a hundred years ago, the way that the seemingly 

“natural laws” of capitalist production have been extended to cover every manifestation of life in society; that – for the first time in history – the whole of society is subjected, or tends to be subjected, to a unified economic process, and that the fate of every member of society is determined by unified laws. This rationalisation of the world appears to be complete, it seems to penetrate the very depths of man’s physical and psychic nature.

But the laws are irrational because they lie, pretending to be natural and not manmade. “This incoherence becomes particularly egregious in periods of crisis.”

On closer examination the structure of a crisis is seen to be no more than a heightening of the degree and intensity of the daily life of bourgeois society. In its unthinking, mundane reality that life seems firmly held together by “natural laws”; yet it can experience a sudden dislocation because the bonds uniting its various elements and partial systems are a chance affair even at their most normal. So that the pretence that society is regulated by “eternal, iron” laws … is finally revealed for what it is: a pretence.

Democratic capitalism, as it flourished for a few generations in Europe and North America, was an uneasy compromise between market distribution and social control. Its politics allowed people limited power to temper how the market worked. In return, their consent legitimated the market’s basic dominance over society. This held together when things were growing, during the trentes glorieuses of rising graphs and expanding possibility. But in economic crisis the compromise breaks down. Then the elites turn on democracy, demand things from governments that the people won’t give, and look for non-democratic means – new mythologies – to legitimate those expropriations. In the economic shambles of the 1920s and 1930s European leaders fled from democracy like scattered lemmings. In our time European states have a collective structure, so they can abandon democracy together.

In the Greek crisis, the elites redoubled their refrain that there was no alternative to austerity, that society must roll over prone before the jagged juggernaut of the market. Yet the crisis, “heightening the degree and intensity of the daily life of bourgeois society” -– unleashing desperation and cracking open spaces of dissent — was an unmasking. It let ordinary Greeks see behind the curtain, where market logic looked not like law but lunacy. No rational system could demand this. Out of the “sudden dislocation” came a democratic upwelling of autonomy and nay-saying, throughout daily life.

The anarchists of 2008 were quite clear that their first experiences of freedom were moments, impermanent, a “living thrill of collective and direct action” that wouldn’t last. The assertion of popular power in the referendum can’t just be a moment, though; it has to be ready for the long run if it’s going to change things. The democratic will has to ensure that state and society don’t lurch back into habits of apathy and submission, where the vote simply legitimates choices made elsewhere.  It needs to build new democratic institutions, immediate ones, close to and permeating daily life. Democracy has to return to workplaces, to schools, to NGOs. Decision-making needs to diffuse throughout society.

workplace-democracyThis is perhaps the third lesson. More is needed; you always need more. The referendum mobilized the nation to say no. But resting content in the space of the nation-state is not an option. The next move has to be both within — democratizing society more and more deeply, so that people have the experience of more and more choices about their lives — and beyond. 

Syriza and the left mobilized nationalism against the austerity hegemons. But while the nation is necessary to resistance, resistance must transcend it. Greek chauvinism is sordid, pervasive, and easy to exploit. (A Greek human rights activist once told me that “Greece has the most progressive policies on ethnic minorities in Europe” — a patent lie — “which is a great triumph because we have no ethnic minorities; everyone is Greek.”)  If the Greek moment collapses back into defending borders and demonizing outsiders, it will turn on itself. Already, as David Graeber points out, Greece ‘has the largest number of military per­sonnel per capita of any NATO country … and the second highest ratio of police (33 per 10,000, or 1 cop per every 303 people).” Police and army have massacred the people before; they can again.

The balance between local democracy, national action, and cosmopolitan vision is exacting to sustain. A few days before the balloting, the anarchist Antonis Vradis wrote that his “no” vote

will go out to the market, this ubiquitous force we have allowed to permeate even the most intimate of our spaces, even the innermost, the core foundations of our existence. It will go out to the parasite scum in suits and ties, the priests of the banking orthodoxy and their pompous, arrogant belief that they can keep running the show, for ever.

But he added:

It will go out to those fueling nationalism in Europe, it will go out against Syriza’s invocation of a Greek “people.” Is there such a thing as a “people”? Of course not; I am not sure what the idea even means. Where does any such commonality lie?

This is a fake question, though. There is a people. It’s constituted by the act of choosing, by saying Here we are; we decide. The Greek people today didn’t exist in the same form the day before the referendum. To keep their sense of their own commonality vivid, viable — to sustain the identity they achieved by choosing — is indispensable. It’s just not enough. 

Demonstrators spell out

Demonstrators spell out “No” during an anti-austerity rally in Syntagma Square, July 3, 2015. Photo by Reuters

The next move has to be beyond the nation-state, because today the pressure on Greece starts up again in Brussels, Berlin, and Frankfurt. (Last night Syriza claimed its victory in the vote, but this morning the Troika claimed the scalp of Yanis Varoufakis.)  “This is when we start re-imagining our cross-border commonalities and interests,” Vradis writes, “this is when we bring down the facade of the market and national unity.” But imagining new common spaces requires the will of those people in London and Madrid, Berlin and Toronto, who were Tweeting exultantly last night but are going to forget about it by tomorrow. They mustn’t forget. They need to abjure their egos and figure out how to stand by Greece concretely, pressuring their own governments to respect another nation. If they don’t, the Greeks will be, again, betrayed.

Dignity” is a term much bandied about, in the headlines on Greece. As usual, it’s mainly rhetoric, more a worn coin than a word with with meaning. Yet in January, after Syriza’s election victory, Alex Andreou wrote about how he voted:

The only promise Tsipras made that truly mattered to me was to “give dignity back to the people.” Of course, he cannot deliver that. Only people can deliver that for themselves. But even mention of that word, “dignity,” in a political context, struck an important chord …

Dignity might be an abstract concept, but its absence is a very real and practical thing. … Spend a day with my mother, who worked two jobs for 45 years, paid every cent of tax and now finds herself diagnosed with Alzheimer’s, with no decent health or social provision and a monthly pension of €400 (£300), and she will explain it to you.

What would she explain? It’s still not clear. Certainly it has something to do with being treated with justice for years of labor and love. But it’s not just passive, not just being-done-to. Surely dignity also means the capacity to choose, to set as far as possible the terms of your life. This self-determination is what what the market stripped from individual Greeks as much as from the nation.

Writing about Hitler’s camps, Tzvetan Todorov identified “dignity” not just as a prisoner’s abstract determination to hold her head high, but as a very concrete possession that helped some to survive, and others to be remembered. It meant the ability to make choices about one’s life and to act on them, even at the risk of life itself. “The important thing is to act out the strength of one’s own will, to exert through one’s initiative some influence, however minimal, on one’s surroundings. … It is not enough simply to decide to acquire dignity: that decision must give rise to an act that is visible to others (even if they are not actually there to see it).” To have dignity in this sense meant to make your life your own.

That is how the Greeks asserted dignity, in their homes, on the streets, as a nation. Now others must affirm that dignity by acting also. I don’t know what will come of that choice; nobody does. But it isn’t just up to Brussels and Berlin anymore. It’s up to us; it’s up to you. Victory is not the same as success; it’s not judged by a vulgar triumph. What matters is not what’s chosen, but the act of choosing.

alexandreou_WzAVoBDNote: The lines in the first paragraph are from the Iliad, Book XXI, lines 106-107; Achilles is speaking to the Trojan Lycaon, who begged for mercy after he was overcome in battle. Achilles kills him. The translation is by Robert Fagles.

And another note: If you like Alex Andreou’s remarkable writing on Greece, read more of it here — and give a little something to support it! He’s crowdfunding his work. Go to the page and check out the right-hand column.

Paper Bird: Three years old and growing

Origami Wren by Roman Diaz, folded by Gilad Aharoni: from giladorigami.com

Origami Wren by Roman Diaz, folded by Gilad Aharoni: from giladorigami.com

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It’s midway through this month of fundraising for A Paper Bird. Please consider giving $5, $10, $100 — whatever you can – to keep us going strong.

If you visit this site regularly, you’ll agree: it gives a bit more than most blogs do. That’s why it’s been cited, and praised, from the New York Times to the Nation

It shines light on injustice. News about the crackdown on trans and gay people in Egypt has largely spread from here: we’ve been an indispensable source for journalists and human rights activists alike, inside and outside Egypt. We helped stoke the storm of indignation that freed 26 men in the most publicized Egyptian “debauchery” trial – an unprecedented victory.

It gives you facts behind the slogans. For analysis of why ISIS murders “gay” Iraqis, or what made Putin put Russia’s activists in his sights, or what’s the truth underlying rumors from Iran — you can turn here.

It asks the hard questions. What’s the real impact when the World Bank links preventing maternal mortality to LGBT rights? How do Western leaders’ bold promises to defend queer Africans play out on the ground? What does it mean when “vulture fund” bankers support gay marriage internationally? What are the hard choices we make in fighting for free speech?

This blog is still mainly solo work. I want it to become something bigger, more wide-ranging. Your generosity can help fund some of my own research and travel. If worse comes to worst, it can pay my legal fees in Egypt. But it can also:

  • Support some of the people who have been helping with research and translation (from Russian, Arabic, Farsi,and Hindi, and more) out of sheer dedication – but who deserve something more.
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Tweet for Egypt on IDAHOT: Why it’s important

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Image by Amr Okasha for http://www.correspondents.org/ar/

It’s the International Day Against Homophobia, Biphobia, and Transphobia (IDAHOT, for short). Here’s one important thing you can do. Tweet, or post on Facebook, or write on your blog with a message of support for trans and gay and lesbian Egyptians. Use the hashtags #Antihomophobia, or in Arabic #ضد_رهاب_المثلية . Or the hashtag #انا_مش_مجرم_انا_مختلف‬ — in English, it’s #‎Am_not_aCriminal_Am_just_Different‬ . Read more about the campaign here.

I’m usually sceptical of online activism: the conflation of clicks with change, the absence of any light at the end of the carpal tunnel syndrome. Twitter and Facebook, though, mean something different in Egypt. They didn’t create the Revolution — that was corporate propaganda — but they were spaces where possibilities opened. In the years of mounting discontent before 2011, when expressly political movements opposing Mubarak had mostly fragmented, dissident Facebook groups let people complain, communicate, and know the growing cyber-weight of their own numbers, During the Revolution itself, social media made news travel instantly: vital news, like which bridges were blocked, where snipers were lurking. (That’s why, on January 28, 2011, the government tried to shut the whole Internet down.) And after the Revolution, they were ways for an amorphous, acephalous movement to discuss itself, not exactly democratically but with anarchic exhilaration. (In the summer of 2011, the military rulers indicated a willingness to meet with a few activists; some ad-hoc leaders of the ongoing sit-ins in Midan Tahrir nominated a bevy of men. Women revolutionaries seized the highly public megaphone of Twitter to object, and debate the whole issue of representation.) None of this was problem-free. Dependence on virtual spaces distracted people from political organizing after Mubarak was overthrown. Tahrir activists’ inability to ally over the long term with rebellious labor movements, wildcat strikers, peasants, and others neither versed nor interested in Facebook debate was a devastating failure. This wasn’t any secret at the time: already in the summer of 2011, the famous dissident Alaa Abd el Fattah and others started organizing “#TweetNadwa,” face-to-face meetings among major revolutionary Tweeters (a phrase only imaginable in Egypt), to prise strategic discussions away from the smartphone screens. But I remember a story I heard from a leftist doctor, who helped bring some wounded young people to a hospital during the Ittihadiyya clashes in December 2012 — angry protests outside Mohammed Morsi’s presidential palace. The victims were bleeding, the emergency room nurses ignored them, and she started shouting for help. Two well-known revolutionaries stood in a corner, fixated on their smartphones. “Would you mind keeping it down?” one said. “We’re Tweeting.”

Revolutionary graffiti from Cairo: A freedom fighter wields a smartphone and Twitter

Revolutionary graffiti from Cairo: A freedom fighter wields a phone and Facebook

No: Twitter isn’t enough to change things. But it remains a start, a step. In Egypt, social media helped create alternative public spheres, which at certain points — when the regime was jailing opposition politicians in the late 2000s; when young people wanted to share their indignation at torture and corruption, as in 2008-2010 — were vital. During the Eighteen Days, when State Security went about slaughtering people on the streets, those alternative public spheres merged with the real, habitable public sphere in towns and cities across Egypt, the imaginary and the actual melding, and their accumulated strength — like a string’s vibration magnified in an enormous echo chamber — brought a dictatorship down. And now?

Public space in Egypt is shrivelling. You can go to jail for half a decade for joining a peaceful protest, and that’s if you’re lucky. If the stars align against you, police will murder you where you stand. Civil society is cowed, the press fawns fecklessly, political movements cringe and comply. You feel the contraction in smaller ways too, in the police harassment of downtown cafes and street salesmen, the message — punctuated by truncheons — that sidewalks and sociality are targets of surveillance and control. Social media are more and more important to people who still dissent; they’re places where you can still find others who either think likewise or are bold enough to argue back. After Mona Iraqi’s raid on the Bab el-Bahr bathhouse last December — a time when everybody I knew was convinced we were all going to be arrested soon — it genuinely was critical for embattled LGBT people that veteran revolutionaries, intellectuals, leftists and liberals expressed their outrage at the abuse, over and over, on Facebook and Twitter, in the only spaces left them. It meant solidarity; it told the government that its pursuit of victims and publicity had breached a barrier of fundamental decency; it gave the indispensable gift of courage. It almost certainly led to the men’s acquittal — an unprecedented retreat by a regime that tosses out guilty verdicts like confetti. It’s important this support not abate. It’s important to keep affirming, at the last extremity, the indivisibility of human rights.

Shaimaa el-Sabbagh dying in Tahrir Square after police shot her, Cairo, January 24, 2015

Shaimaa el-Sabbagh dying in Tahrir Square after police shot her, Cairo, January 24, 2015

IDAHOT is essentially about the kind of public world we’re building. It was started in 2004 by Louis-Georges Tin, a French academic and activist, a sometimes difficult man but one who conceived a hugely persuasive idea. The day caught on with LGBT groups (and people) around the globe because it captured a grating dissatisfaction with the compulsory celebrations that Prides entail, the drumbeat message that everything is getting better and better and better. No, it isn’t. Hatred and violence persist. Creating specialized, carnival spaces to congratulate ourselves offers an escape but not necessarily a solution, and the more commercial demands shape those spaces — the more they’re about money and exclusion, the more you pay to party — the less they adumbrate the equal, diverse, and democratic public sphere that so many movements once had the temerity to dream. IDAHOT asked why homophobia and inequality flourish in the larger world, why public space still isn’t safe for us, and what we can do.  (Of course prejudice and violence are powerful and cruel in what we curtain off as the “private” sphere — families, homes. But we can only learn about that and respond to it adequately in a public world that’s open for argument.) Its festivities tend to feature discussion panels rather than discos. Sometimes, of course, this stifles politics as much as any Pride can. Listening to a self-appointed talking head lecture is no more intrinsically empowering than staring at a shirtless twink dancing in a cage. And if the head belongs to some droning government hack or politician, it’s not hard to figure out which to prefer. But the aspiration remains. And the question of what the public sphere should be like, and who belongs there, is crucial in a place like Egypt.

A lot is happening around the world this May 17. Take this IDAHOT video from Iranti, a South African queer activist group with a focus on visual media. It’s part of a campaign against imposed gender roles in schools — the way school policies, and school uniforms, reify kids into “masculine” and “feminine” roles. And the kids themselves speak:


Or watch this video, an interview with Kenyan activist Solomon Wambua, about families and coming out. It’s one of an extensive series produced by None On Record, an LGBTI digital media group documenting queer activism in Africa.


In Russia there’s a range of events, mostly hoping to evade the police, including rainbow flashmobs from Archangelsk to Tyumen. You can find a rundown here. (Check, too, the moving photo campaign that Russian trans activists organized for IDAHOT last year, to support depathologizing transgender identity.) And read this publication of the international Youth Coalition for Sexual and Reproductive Rights, with reflections on freedom of expression by young queers from Romania to Nepal.

Photo circulating on Twitter, reportedly of a judge killed by gunmen in North Sinai, May 16

Photo circulating on Twitter, reportedly of a judge killed by gunmen in North Sinai, May 16

But remember Egypt, too. Tweet or post. You don’t have to be only a passive consumer of others’ activism. You can participate, in however seemingly-small a way, and help defend what public sphere remains. Yesterday the Egyptian regime, which is in love with death, sentenced the democratically elected president it overthrew to die, along with more than 100 of his supporters. A court declared that the Ultras — groups of football fans, children in their teens or youth in their twenties, whose only politics is a deep hatred of the thuggish police — are “terrorists.”  In North Sinai, already bleeding from a years-long civil war, gunmen attacked a bus carrying a group of judges to a court session, and massacred four of them. The regime loves just such deaths. This morning, the country woke to find itself in an intensified state of emergency, “maximum alert,” with ramped-up security patrolling the streets. A Tweet can’t do much against such violence, such repression: true. But it’s a small blow for space and speech, against silence. Where silence is in power, every word is precious.

Cairo graffiti, November 2011. Photo by Gigi Ibrahim.

No; but a Tweet may help. Cairo graffiti, November 2011. Photo by Gigi Ibrahim.

 
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Fundraiser for Paper Bird: Keep us flying!

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If you like this blog, we’d be grateful if you’d pitch in:
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You gave this blog your attention, and I’m incredibly grateful. Now please consider giving a little more — $5, $10, $100, whatever you can – to keep us going strong.

When I started writing here back in 2011, I thought of it mainly as a place for my own cantankerous, informed, but often infuriating opinions. It still is. It’s become something more. Paper Bird is no parrot. It’s escaped the cage of my intentions. The site is irritant, forum, megaphone. With your constant prodding, it’s analyzed and argued about faith, fraud, fashion, debt, the inequities of global economy, citizenship, migration, militarism, and much, much, more — not to mention sex; there’s always sex. It’s told urgent stories many people would never know of otherwise.

For example:

  • This blog’s 2013 story on skinhead violence in Russia was the first to explain what lay behind neo-Nazi attacks on LGBT people. It attracted more than 75,000 readers — and shaped much of the later international coverage.
  • Our report on Mona Iraqi’s raid on a Cairo bathhouse broke the news to the world only a few hours after it happened— and still delved deep into the politics and context. It drew almost half a million readers, the majority from Egypt. It helped make this a human rights issue at home, and stoked the storm of indignation that acquitted the men five weeks later.
  • Our essay on Charlie Hebdo was read a million times on this website, and reprinted from Denmark to Brazil. People defend free speech by debate, not acquiescence – and the arguments started here.

This blog can do way more. I’m asking for your support because this is still largely a solo effort. I want to give more time; I also want the blog to become something bigger, more diverse. Your generosity can fund some of my own research and travel (and help repair my old Mac, out of commission for six months now in Cairo). If worse comes to worst, it can help pay my legal fees in Egypt. But it can also:

  • Support some of the people who have been helping with research and translation (from Russian, Arabic, Farsi, Hindi, among other languages) out of sheer dedication – but who deserve something more.
  • Bring guest writers and new voices into the blog. The writers I’d like to see are activists from the South who don’t enjoy the cushion of time and leisure that lets Westerners opine for free. They deserve to be recognized – and reimbursed.

From now till June 5 – my birthday, by the way – I’ll be nudging and cajoling you to give a little to a site that gives you facts, scandals, sex, shocking pictures, snarky captions, stories of rights and wrongs, and ways to fight back. Press the Paypal button. Do what you can. Since this is a fundraiser, I’ll throw out a cliché you’d never read on the regular pages: You, faithful readers, are the wind beneath our wings.
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 With your generosity, we can make this stop.

Icons

Madonna and fanboy, I

Madonna and fanboy, I

My friend Mauro Cabral, the great trans activist from Argentina, wrote this week on Facebook:

An American journalist wants to chat with me about Bruce Jenner’s story. She wants to know if I expect this new global leadership to help trans people in my country.

I told her that, to be honest, I am not following the story.

She asks me if I have good access to Internet.

Bruce Jenner has worn the two greenest laurels American life bestows, as sports hero and reality TV star. When he comes out as transgender, in an interview seen by one-twentieth of the country’s population, surely the world must be watching. The only holdouts are in the Stone Age caves of Buenos Aires, where people communicate by smoke signals.

For Mauro, this is the old American imperialism, sure that whatever happens in the 50 states shakes the planet. But it’s not just about foisting a new “global leader” on us. For me, an American, it also reveals a naïve confidence that the way we do politics is universal. Americans have given the globe a new kind of social transformation: change without action, progress without movements, transformation in the passive voice.

It used to be that when you dreamed of transforming society, you dreamed of deeds. Revolution was a name for that kind of action. Revolutions were compendia of great acts: manning barricades or withstanding massacres, the journées of bravery and danger, the assault on the Winter Palace, the confrontations with kings. Paintings or photographs preserve the figures of that age, in static and stylized tableaus; but even under those stiff cemented poses you can feel the taut muscles still pulsing, bursting through the flatness into our time and dimensions, like the withers of great horses straining to break free. They made oaths, which mortgaged their lives to future action; they pledged their fortunes and their sacred honor, or plighted an immortal solidarity on a disused tennis court. Of course, there was a lot of talking. They spoke and spoke. But when Patrick Henry cried out “Liberty or death,” or Trotsky shouted to the sweaty soviets about the dustbin of history, the words themselves became as hard as deeds. “The words fell like hammerstrokes,” people said. They meant that in the tension of transformation everything became an act. Each syllable forged a weapon. History was not what happened, but what you made: the energy of a common workman suddenly pounded time itself into shape as if it were molten steel.

Change: Communards in Paris, March 1871

Change: Communards in Paris, March 1871

Everybody knows revolutions are over. Their time is past. Now we have Social Change. Social Change is committed by NGOs, furtively, like masturbation. Progressive donors who fund progressive NGOs working on Social Change often have something called a Theory of Change, to help decide whose change is theoretical enough to get the money. If you talk to such a donor, they may ask what your Theory of Change is. Usually they don’t expect you to have taken time off to think of one. They want to know you’ve read their website, and come with something enough like their own Theory to pass. A plausible Theory of Change might go like this. People need empowerment. This doesn’t mean appropriating anybody else’s power (or money; donors can be sensitive on this point). It means making them feel better about themselves; which means talking about rights and giving them role models. The role models are vital; power flows from their fingertips. A few celebrities can charge the world with change like electric current purring through great powerlines. They stand alone like latticed steel towers, strung together by their own strength. They do the public work, while the NGOs wank in private. Change happens so seamlessly that it never even slipped into the active voice. You can imagine trying to sell something like this to the Parisian sans culottes, or the Communards. But they lived in an age of darkness, with resources infinitely inferior to our own. Our lives touch the stars; we have satellite TV. The Theory of Change is a theory of the celebrity interview.

Theory of Change; Model for improving supply chains for community case management of pneumonia and other common diseases of childhood (also known as helping people keep kids healthy), from http://sc4ccm.jsi.com/emerging-lessons/theory-of-change/

Theory of Change; Model for improving supply chains for community case management of pneumonia and other common diseases of childhood (also known as helping people keep kids healthy), from http://sc4ccm.jsi.com/emerging-lessons/theory-of-change/

Bruce Jenner is a decent person, who wants his life to mean something; but his image, now as before, is out of his hands. “We’re going to change the world,” he told the cameras (in all the discussion of his use of pronouns, no one asked if the “we” was royal or collective). And everybody agreed. He’ll change the world by being himself, and doing it in public. The word for such a sedentary world-changer is “icon.” An icon is, of course, a religious image; it’s necessarily inert. It answers prayers through the power of our faith in it, without lifting a painted finger.

Madonna and fanboy, II

Madonna and fanboy, II

And now he’s a transgender icon, an “icon of change.” “I couldn’t think of a stronger icon,” said one trans activist in Canada. “I’m team Bruce all the way.” In a New Zealand concert, Demi Lovato “dedicated her track Warrior to transgender icon Bruce Jenner,” “an American hero.” (“This whole fame thing starts taking over and people know your name and then all of a sudden – boom – you’re in rehab,” she warned him, apparently forgetting he went through that crucifixion before she was born.) There are no iconoclasts. Even people who don’t like him don’t dispute the icons’ power. “Trans people need an icon,” one op-ed read. “But Bruce Jenner is the worst possible choice.”

Madonna and fanboy, III

Madonna and fanboy, III

These aren’t metaphors. They’re manifestoes. They offer a strategy as clear as anything in Rules for Radicals or What Is To Be Done?  The panoply of ideas that icon-worship brings has become our essential jargon: the “teachable moment,” the “national conversation,” the importance of “awareness.” These goods are the intangible benefits celebrities can give us, just as healing radiates from the icon’s frame. The politics are magical and royalist. The “awareness” is entirely about the celebrities themselves, not of material facts that lie beyond their lives. Jenner took pains to emphasize in his interview, “I am not a spokesman for the community.” And he went on to list a lot of issues the community confronts: discrimination, health care, murder. But what sticks in the memory are the “simple goals” the cameras coaxed out of him: “To have my nail polish on long enough that it actually chips off.”

Under the nail polish, here are some figures about other transgender lives.

  • A 2011 survey of almost 6500 trans people in the US found they were four times more likely to have a household income of less than $10,000 than the general population.
  • One-fifth said they had been homeless at some point. Those are roughly the same figures that a 1997 city investigation found in liberal, protective San Francisco.
  • Only one-fifth had been able to update all their IDs to match their lived gender, and one-third had no matching ID at all.
  • One-fifth had no health insurance (as opposed to roughly 16% for the general population at the time). 18% had been verbally harassed in a medical setting, and 19% had been denied care because of their gender identity or expression.
  • Trans people reported four times the national average for HIV infection — trans women, eight times. Trans African-Americans were ten times more likely to be HIV-positive than other African Americans.
  • 16% of trans people overall – 21% of trans women – reported they had been incarcerated; among African-American trans people, that crested to 47%. In 2014, the US government estimated that 40% of trans people in prison have suffered sexual assault or abuse. That’s ten times the numbers among other prisoners. In California, studies of state prisons found that 59% of transgender women held in men’s units had been sexually assaulted by other inmates. 14% had been sexually assaulted by staff.
  • Of the 6500 trans people surveyed, 41% said they had attempted suicide: almost thirty times the figures for the US population overall.

Bruce Jenner can put a face on some transgender lives. But after that? A comforting face can easily hide comfortless facts. What you’re left with is a trickle-down theory of consciousness: that fame rubs off; that visibility is contagious; that Jenner has the strength to change the “national conversation” because his image was on a Wheaties box once. What is this redemptive power of breakfast? In the South, where I grew up, generations of white folks started their day eating pancakes blessed by a happy black woman smiling generously from the label: Aunt Jemima, an icon of love. It didn’t stop them from getting up from the table and going off to join the Ku Klux Klan.

Crazed-looking white people worship an iconic African-American woman whom they’re perfectly capable of killing without a second thought

Crazed-looking white people worship an iconic African-American woman whom they’re perfectly capable of killing without a second thought

The politics of icons strikes me as one of the great gifts the gay movement proffered to America as a whole: so it’s natural that trans folk too should be expected to embrace it. (Remember, “transgender people need an icon,” even more than they do IDs.) “Gay Icon” actually has a Wikipedia entry; so do “Madonna As a Gay Icon” and “Cher As a Gay Icon.” Resilience, suffering, “triumph over adversity” nearly always figure in the definitions: “It is her perseverance in the face of seemingly insurmountable odds that has earned [Judy, you idiot] Garland her status as a Gay Icon.” Drug addict! Fat girl! Multiple divorcée! Or as RuPaul says:

People always ask, ‘What makes a gay icon?’ People who have been ostracized or pushed outside of society relate to other people who have their exact same qualities and personality traits. The spiritual being having to dumb down to fit in.

I disagree, though. There’s a historical confusion here. When I was a kid back in the Middle Ages, learning to read by the light of burning witches, we had “divas,” not icons. Those indeed were famous women who had suffered and survived: Judy, Joan Crawford, Callas, Billie Holiday. Gay men identified with them because they offered a pushed-to-extremity version of what pop culture (or certain corners of high culture) promised to do: provide figures so immense, so superhuman, so intense in experience and emotion that they could contain all of us, like Whitman’s pan-American ego, and redeem our subjection to our grinding daily injustices by making it grandiose, gorgeous, unforgettable. Their sufferings were infinitely direr and more stylish. There was a tragic side, but this wasn’t catharsis: it was transfiguration.

Very few of these stars ever said anything in public about gay people. If they did, it was far from sure to be supportive. (Bette Midler was one of the only players before the 1980s who openly embraced a gay audience — and gay causes. That helped keep her more a cult figure than a major star. Meanwhile, Donna Summer, last of the disco divas, supposedly told a gay crowd that “AIDS is your sin … God loves you. But not the way you are now.”) But that was fine, because their usefulness wasn’t political but personal. They were tools to forge imaginary selves, means to endure the everyday by sublating it, the dialectic as redecorated by Douglas Sirk.

Madonna and fanboy, III

Madonna and fanboy, IV

The first top-rank, A-list star I remember who publicly exulted in her gay audience was Madonna. It’s hard to recapture how, as they say, transformational it was. She was the first real gay icon: somebody who promised not just inner triumph but the hope of everyone accepting you, loving you. There was no tragedy to her: neither in persona nor in person did she suggest suffering, being “pushed outside of society.” She did her own pushing. And she evoked not identification but adoration. Loving Madonna was an affair with the unattainable; fame was intrinsic to her being, and because she was famous she was radically different from you. There could be no question of her encompassing your problems. She was beyond all that.

Madonna-In-Bed-With-Madon-401853When I was in graduate school at Harvard, there was a young gay undergrad named Alek Keshishian, dying to be famous. I didn’t know him personally; his name showed up once on the student list for a section I was teaching, but he never appeared, and later he dropped the class. For student theater, he memorably staged a rock opera version of Wuthering Heights: Cathy and Heathcliff were rock stars, trying to deal with the pressures of fame. (Alek sent invites to reviewers from all the Boston papers, and got some favorable notices. This unheard-of self-advertising roused indignation in the dining halls: student theater was supposed to be for students.) Some of the songs he used in the opera were by Kate Bush and some were by Madonna, and when he contacted Madonna’s people to get the rights he managed, through sheer pushfulness, to speak to her. She took him on as fanboy and protégé, and after that he was in Fame Heaven. Straight out of college he started filming her tours and the backstage drama, and in 1991 he directed Truth or Dare  also known as In Bed With Madonna – which became the highest-grossing documentary of all time. Its fame was transoceanic. I was living in Budapest by then, and if I mumbled half-mendaciously to somebody in the city’s one gay club that “Madonna’s director was my student,” my chance of getting laid increased twelvefold. Fame does rub off, in a long-distance frottage.

Alek never really did anything outside Madonnaworld. The rest of his career comprised music videos and the like; most recently he co-wrote a film with her, about another couple dealing with the pressures of fame, the Duke and Duchess of Windsor. If you Google him, he turns up on a page called “Today in Madonna History.” His story seems to me a parable of the period: not Wuthering Heights, but Great Expectations.                      

Madonna and fanboy, IV

Madonna and fanboy, V

You cathect to icons, but in a different way from divas. Divas once summed up your life; icons are imperial beings vastly above it, who bless it just by being there. Sorrow doesn’t touch them – Kylie MInogue said that divas “usually have some tragedy in their lives, but I’ve only had tragic haircuts and outfits.” The icons aren’t the drug addicts or the fat girls made good. They’re the rich kids who picked on the drug addicts and the fat girls. They’re emblems for an era where failure is the unforgivable sin. (B. J. Whiting, the great medievalist, used to ask his Harvard students at the beginning of every year to name the Seven Deadly Sins. A few always listed poverty, sickness, and unemployment.)

The fascination with celebrity is ingrained deep in Western gay life. Partly, I think, it comes from the debilitating experience of the closet, which despite the premature triumphalism of outness still shapes our lives. The wounds of self-concealment breed a fetish for completely public selves, all crevices open to the klieg lights.

Britney got her title in a 2011 poll by the Equality Project, and promptly reclaimed her virginity from the pawnshop.

Britney got her title in a 2011 poll by the Equality Project, and promptly reclaimed her virginity from the pawnshop.

These days, we justify this star-fucking by saying that young queer kids need role models. They do; but role models they can’t speak to and can never hope to be? No lonely trans or gay youth seriously thinks he’s going to become famous as Tom Cruise or rich as Tim Cook. Children dream, but they’re not delusional like adults. They know the destinies of the stars lie beyond their grasp. Most of the hyper-successful win through inheriting looks or money, or through pure random luck in the Babylon lottery we inhabit. Their triumphs aren’t imitable. Some have real prowess, as Jenner had. (There’s an argument that Americans indulge the immense salaries of sports heroes because it’s almost the only field of American life where you can’t fake success. You either make the touchdown or you don’t – unlike corporate CEOs, who can cook the books more ways than Julia Child.) But that prowess came as much from genes as from the gym; it isn’t readily replicable, any more than you can get Oum Kulthoum’s vocal range by practicing your scales. We all bought Wheaties with Jenner’s picture when I was a kid, but we didn’t buy the line that we’d become him. Icons don’t reveal possibility. They embody inequality. It’s no coincidence that celebrity politics flowered in the Reagan era, which didn’t just cement inequality but celebrated it as US society’s vital principle.

tony

I’m not gay, but if George W. asked me, how could I refuse?

But the icon appeals in a different way to the insecure and unwanted: it makes them feel accepted by the big guys, the in crowd, the Mean Girls or Heathers or the playground bullies. Icons are about how the powerless love power. (In the UK, Gay Times named Tony Blair, the warrior god, “top gay icon” of the last 30 years. No one would dare call you a fag if you could destroy a country.) My old friend Lisa Power, a distinguished British queer campaigner, is researching how activists identify their role models. The celebrity fixation, she wrote me, is “about approval and validation, proving that popular people want to hang with us.”

She added: “One of the longstanding activists that I interviewed said, ‘Icons? In my day we didn’t have icons, we had each other.’” And that rings true. The need for icons also suggests some terrifying loneliness that all this liberation we’ve undergone has yet to repair, has perhaps made worse. We hung together more when we knew we needed each other. Now, so full of borrowed hope, we’re hopelessly alone.

Madonna and Fanboy, V

Madonna and fanboy, VI

If the gays, adoring their celebrities, played a critical part in creating celebrity politics, it has spread beyond them. Oh, how it’s spread! True, no other social movement has succumbed quite so completely to the idea that celebrities in themselves can get you justice. Most movements simply use the famous for what they can extract. But the model’s seductive, corrupting. Women’s rights campaigns in America look increasingly like red-carpet photo ops: think of all those stars reading the Vagina Monologues. The more riddled with implausibilities the cause, the more likely it is to enlist celebrities for their power to blot out doubt. Nick Kristof’s neo-feminist “Half the Sky” brand  – a book, a film, and a PR package that calls itself a “movement” — relies on Meg Ryan, Diane Lane, and Eva Mendes to help him raid brothels, humiliate sex workers, and buy women “freedom.” The paradigm of this is Kristof’s protégé, the anti-trafficking icon and master brothel-raider Somaly Mam, whose vanity foundation collected stars’ endorsements like Pokémon cards: Susan Sarandon, the inevitable Oprah, Ashley Judd and Ashlee Simpson, Katie Couric and Bill Maher. Mam was a money pit  for “celebrity philanthropy.” Even after she was caught “publicizing her efforts with fabricated, lurid stories about herself and the girls in her shelters, which sex trafficking experts say dangerously misconstrued the problem at hand,” Marie Claire, the beauty magazine, took up the cudgel to defend her. Diane von Furstenburg stands by her. Image is all.

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I played a refugee once: Jolie at the UN

For all its US foundations, moreover, celebrity politics more and more goes global. The United Nations, since the 1950s, has called on “Goodwill Ambassadors,” famous people brought in to publicize its agencies’ work. But now the truculent stars insist on being more than spokesmen; they want credit for the work itself. The moon’s pale fire eclipses what used to be the sun. Angelia Jolie has graduated from “Goodwill Ambassador” to full-fledged “Special Envoy” on refugees; she speaks at UN meetings with a Method-acting look of expertise. Alain de Botton, a celebrity philosopher, defends the primacy of celebrity activism like hers: “Rather than try to suppress our love of celebrity, we ought to channel it in optimally intelligent and fruitful directions.” Jolie, he says, is one of these directions (along with Alain de Botton). She goes to Congo or Rwanda “to help people who are in great need. But more than anything, what she does is make Africa ‘sexy.'”

In 2012, on Human RIghts Day, the UN held a panel discussion on LGBT people’s human rights, with Secretary-General Ban Ki-Moon himself attending. Three activists travelled to New York to speak: Olena Shevchenko, a feminist and queer rights defender in Ukraine, Blas Radi from Argentina who had helped draft the groundbreaking bill on gender identity there, and Gift Trapence, who had bravely defended imprisoned trans and gay people in Malawi. But the main speakers were two queer-friendly performers: Latino corazón-throb Ricky Martin, and the South African pop star Yvonne Chaka Chaka, both somewhat superannuated to say the least. (One nice thing about becoming a gay icon is that your healing power can bring your dead career back to life.) The officials there spent their time fawning over the stars. Ban praised Chaka Chaka as “the Queen of Equality.” The Dutch diplomat moderating the event called Ricky Martin “the King of Equality.” (Royalty and equality, of course, are not usually linked.) The people who had actually worked for human freedom were treated as second-class opening acts, their comments cut short and their accomplishments slighted in favor of a chanteuse and a former member of Menudo. The activists felt useless. The show said nothing substantial. The UN, stealing a bit of lunar light from the stellar celebrities, got the publicity it wanted. Everyone who mattered was happy.

Madonna and Fanboy, VI

Madonna and fanboy, VII

Puzzle as you like over why celebrities dabble in humanitarianism – principles or PR? It can’t be grasped on the level of personalities. A Marxist could tell you what “celebrity activism” is, how the whole game works. It’s not a way of transforming society. It’s a way of transforming needs felt at the base into the abstract language of the superstructure: of turning anger and desperation into safe and culturally acceptable representations. The concrete, material needs that people and communities experience – for health care, jobs, access to medicines, protection from violence – are surrendered for immaterial gains on the level of “culture”: for “awareness,” publicity, “public consciousness,” “teachable moments,” “conversations.” The scraps of those needs that survive the translation are there for celebrities to turn into entertainment; your rage becomes a show, your hunger a commodity for somebody else to consume. The gains for the poor are purely ghostly, a few flickers of light. Those who get something tangible out of the game aren’t the communities, it’s the celebrities – and, overridingly, the corporate system within which they work, the machinery of capital that makes them. Profits flow up and only representations trickle down. And the nature of the system is that we are all trained to feel good about this; even the activists and malcontents among us.

This is simply how things are in the late-capitalist United States; everything material evaporates into its own signification. Or as Nancy Fraser would say, people who want redistribution of resources quickly learn to settle for symbolic “recognition,” for genuflections and formal respect, for the small satisfaction of seeing themselves in a movie — because it’s all they’ll get. There’s a limit to how much any activist can fight back against this system of images and fictions. We’re all convinced now that the only way to get any material needs met at all is to play the “cultural” game, to translate them into symbolic terms. You act nice, you tamp down your anger and your desires, and you recruit celebrities to “raise some awareness.” But we have never calculated, and may in fact be structurally unable to calculate, what we lose for a pottage of allegorical and evanescent gains: how many demands are abandoned, how many needs left unrecognized and unmet, in the distortions of this mistranslation.

Madonna and fanboy, VIII

Madonna and fanboy, VIII

Sometimes the fabric of these fictions ruptures. Of course revolutions don’t happen any more; except they do. I drive each day in Cairo through Midan Tahrir. It’s a mound of earth. The military government is digging up the central traffic island for some unexplained project, like a bomb shelter; they’ve already planted a gratuitously gigantic flagpole there, plinthed on a grotesque sarcophagal stele. It’s all to keep it off-limits, keep you from gathering, fence the people away because they fear the people; the leaders live in the lightning-fringed apocalyptic dread that opens Pilgrim’s Progress; they fear the wrath to come. The people still want bread. What happened once can happen again. And then there’s Baltimore. In Baltimore the cops kill someone, and you know your own life has a use. In Baltimore they no longer wait or want to be spoken for, they don’t believe that change comes stacked in theories like eggs in cartons, they don’t believe that justice trickles down from absconded gods in the airwaves or the clouds. They know reality isn’t raw material for reality TV. Hunger and anger won’t submit to being translated. The pain that’s actual and unseen has more power than all the images some satellite, lost in the smear of stars, can absorb.

But the rest of us survive differently. Gay politics always talked of honesty, authenticity; but what’s left? To be queer now is to be caught trying to assert your own reality in a world that is more and more unreal. You are driving down a long straight highway in a desert, through bright sun flecked with strange-angled shadows, past painted yellow mesas flat as stage sets. A wind from the obverse of the sky blows over you, and hardens the beads of sweat on your face to diamonds. The towering props that mimic stone tremble in the air like aspens. You think, I could live like this: and the wind uncombs your hair.

Madonna and fanboy, IX

Madonna and fanboy, IX

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Note: at the time this piece was published, Caitlyn Jenner still asked to be called Bruce and to be described with masculine pronouns.

Deport me!

gallery_1238284997So they’re going to deport gay foreigners from Egypt. My phone started ringing a few mornings ago, reporters wanting comments: solicitous but always with a subtext of What’s going to happen to you?

I don’t know. The case involves a Libyan student whom police expelled from Egypt in 2008, after a complaint that he was gay. From back in Libya, he sued. This Tuesday, after seven years – the alacrity typifies Egyptian justice — an Adminstrative Court ruled that the Ministry of Interior did the right thing, under its power to”prevent the spread of immorality in society.” In fact, then, this isn’t a new policy. The court reaffirmed authority the state always had. Two years ago, for instance, a Polish citizen was vacationing on the North coast here with his Egyptian partner. The Pole grew seriously ill and had to be hospitalized. The nurses found their relationship suspicious and called the police. After several days under arrest, the Egyptian was freed; police deported the Pole, who was still in agonizing pain. I heard all about it at the time, but there was nothing we could do.

Things are much worse these days under Sisi. I sometimes seem insouciant about threats in Egypt, but I’m not. iI’s just that the atmosphere of threat is general here. It affects every corner of your personality, yet it’s hard to take it personally, so wide is the danger spread. Here’s a story. Yesterday, talking with a reporter in the usual seedy Cairo café — a place I’ve always considered safe — I saw a well-dressed man at the next table listening intently. Finally he interrupted. He gathered I was interested in human rights, he said. What did I do? Did I work for Freedom House? Freedom House is, of course, a banned organization, its local office raided and shuttered by the military regime back in 2011. I said no. He added, almost enticingly, that he himself had been tortured, and offered to show me his scars. I gave him my contact information and told him to call me. That was simple responsibility – you do not refuse a torture victim anything you can give; but afterwards I cringed inside. It’s how things are in Egypt. Other people, foreign passport-holders among them, have been arrested for “political” conversations in public places. You don’t know if the person who approaches you is victim or violator, survivor of torture or State Security agent; or both.

That suggests more clearly than any headline how Sisi’s regime is achieving totalitarianism – something Mubarak’s clumsy and inept authoritarian rule, his iron fist of five thumbs, never managed, perhaps never imagined or tried. I see now that totalitarianism is less comprised in how the state controls your private life than in how you do. Ordinary emotions such as sympathy or compassion cease to be modes of solidarity and become dangerous betrayals, self-revelations to be regulated with sleepless scrupulosity, as though they, and not the people you suspect, are the real informers. Mistrusting yourself comes first. Mistrusting others is merely the consequence. But the self-hatred self-suppression brings – and I hated myself for my fear – demands other objects, a wider field of play. To be foreign to yourself is to apprehend foreignness all around you, to fear the stranger in the land of Egypt.

Game of thrones: Sisi at his most Napoleonic

Game of thrones: Sisi at his most Napoleonic

Still: this story, the deportation story, went viral abroad. It’s strange because LGBT Egypt has not been in the international news much for months. When you deal with the media, you get used to its collective movements, puzzling as tidal motions when it’s too cloudy to see the moon, or the startled shuddering of gazelles racing in unison through tall grass. But other terrible things happened here recently. A man acquitted on charges of homosexuality tried to burn himself to death in despair. Police arrested an accused “shemale,” splaying her photos on the Internet. Egypt’s government threatened to close a small HIV/AIDS NGO because it gave safer-sex info to gay men. None of these got such press. The contrast is striking.

I learn three things from all this. First: our attention span isn’t what it used to be.

The world is everything that is the case, said Wittgenstein. These days we can click instantly on every fact about the world. When everything is the case, nothing might as well be; the excess of fact turns fantastic, the surfeit of reality becomes unreal. The LGBT arrests in Egypt had their moment of fame late last year, but the spotlight moves on; nothing is ever serious enough to make it halt. I’m not complaining about the press. In fact, many reporters have written about LGBT Egyptians both repeatedly and well (Lester FederBel Trew, and Patrick Kingsley have helped keep pressure up, among many others). But the attention span of news consumers, and activists among them, shrivels; and that’s a problem.

I often think of the long international campaign throughout the 1990s to repeal Romania’s sodomy law. A few Romanian friends and I started researching the fates of people arrested under the law after I moved to the country in 1992 (it was some of the first human rights documentation ever on the persecution of LGBT people). Bucharest finally repealed the law in 2001. Over those nine years the Council of Europe and the EU exerted pressure; so did international groups like IGLHRC and Amnesty; and so did activist circles from Soho to Rome. The agitation was steady, so persistent that every time a Romanian politician visited Western Europe he was sure of facing a noisy protest somewhere. It would be simply impossible to keep a decade-long campaign like that going today. Nobody has patience. These days, if the law didn’t disappear after a single summer of sign-waving, the anger would evanesce like early frost.

Consider the transient 2013 furor against Putin’s homophobia: with its boycott calls and Stoli dumps, the campaign survived all of seven months. None of its self-proclaimed leaders even remember it anymore. Abstaining from vodka for a few weeks had absolutely zero chance of making the Russian state back down. Seasonal activist infatuations are doomed. Repression doesn’t cower before fads. Change takes work, and work means the long haul.

Brief shining boycott: Activists protest Russian homophobia in central London, December, 2013. Photo: Lefteris Pitarakis/AP Dec 2013

Brief shining boycott: Activists protest Russian homophobia (while dabbling in transphobia) in central London, December, 2013. Photo: Lefteris Pitarakis, AP

There is of course the well-known malady of “compassion fatigue,” a multisyllabic way of saying boredom. There’s been so much news from Egypt since the 2011 Revolution, so many twists in the plot, that even the most rapt listener gets lost. And isn’t the Middle East mixed up anyway? Six months ago, the enemy was the demon ISIS in Iraq. Now it’s the demon Houthis (who?) in Yamland or somewhere. Even the demons can’t keep themselves straight.

In fact, the confusion of cable news feeds the wiles of statesmen. “Compassion fatigue” serves a political end. Empathy, souring into self-pity about how overstrained it is, ignores inconvenient crimes. Egypt, by publicly killing “terrorists,” has planted itself on the side of the West. It’s best for all concerned to have minimal publicity about Egyptian state terror. After all, ISIS is worse — though they may have slain fewer civilians than Sisi. The Houthis are worse — though don’t they sound like they’re from Dr. Seuss? (And the distinction between being killed in Tikrit and killed in Tahrir Square may well look like the narcissism of small differences if you’re the one dead.) You might possibly remember Shaimaa el-Sabbagh. Activist, journalist, poet, mother, she was murdered by security forces in Tahrir in January, while trying to place flowers in honor of the now-expired Revolution’s martyrs. A photograph of her dying in a friend’s arms broke through the wall of indifference; the story briefly travelled worldwide.

Shaimaa el-Sabbagh dying in Tahrir Square after police shot her, Cairo, January 24, 2015

Shaimaa el-Sabbagh dying in Tahrir Square after police shot her, Cairo, January 24, 2015

Last month the state pressed criminal charges. No, not against her killers. Against the witnesses who testified to prosecutors about her killing — because they’d joined an “illegal demonstration.” They could face five years in prison, for being there when Shaimaa was shot. Did you know that? No. The story’s over; we’ve moved on. It’s better you don’t know, because after all, your compassion might get tired; wiser to tend your valetudinarian emotions than defend exhausted dissidents, or the memory of those already murdered and past help.

Another lesson is: some people don’t count. Sex workers, for instance. I hate to say this, because it seems to give the Egyptian government a pass – but the idea that governments can exert moral controls at the border is not a Middle Eastern peculiarity. The US still denies entry to anyone involved in sex work. The American immigration bar on “moral turpitude” uses almost the same language as the Egyptian exclusion. Most gay Americans have no idea of this: because the American gay movement couldn’t give a shit about sex workers.

And then there are trans people. Most of the Egyptians arrested in the crackdown since 2013 were transgender. The government explicitly says it’s going after “she-males,” sissies, mokhanatheen. Nonetheless, most coverage by Western media – or by Western NGOs – talks about an anti-“gay” crackdown, as though sex were everything, gender irrelevant, and trans folk distractions from the main event.

The Egyptian arrests that got the most publicity were ones that did involve cis men: working-class clients of a bathhouse, or respectable bearded types doing the gayest of gay things in Western eyes, getting wed. In Egypt, as a colleague of mine points out, these gained extra-large headlines because they showed “perversion” at its most dangerous, infecting people like us, not just the pre-emptively anomalous. But they became poster boys in the West for similar reasons, because these were people gay readers could identify with, muscular and married, “normal.” Trans people doing sex work are neither nice nor news. Who gives a damn? Getting arrested is simply their destiny, their job.

In 2013 the Western press started reporting that the Gulf Cooperation Council countries – Kuwait, Qatar, Saudi Arabia – were going to test and expel “gay” people at the border. There was a storm of stories about how dumb this was. Silly Arabs, setting up gay detectors in airports! Then it turned out the targets weren’t gay people (or Western visitors) at all. Kuwait had proposed chromosome tests for migrant workers, to determine if their genes and their IDs conformed. They meant to expel trans people coming from countries like Nepal (a major exporter of exploited labor to the Gulf) that now permitted them treacherously to change their passports. This wasn’t silly; it was scientific, and a much worse invasion of privacy than an imaginary gaydar machine.

In a Nepali village, family members mourn over the coffin of a migrant worker returned from Qatar. On average, a Nepali migrant dies in Qatar every two days.  From http://edition.cnn.com/2015/03/09/asia/qatar-nepali-migrant-workers-deaths/

In a Nepali village, family members mourn over the coffin of a migrant worker returned from Qatar. On average, a Nepali migrant dies in Qatar every two days. From http://edition.cnn.com/2015/03/09/asia/qatar-nepali-migrant-workers-deaths/

And with that, the stories stopped. Nobody cared about trans people – or poor Nepalis. The Human Rights Campaign, the US gay behemoth now going international, still claims in a recent report that the tests were meant to keep out only “gay” people. This isn’t a mere mistake; HRC knows better. But their members’ empathy, and donations, won’t get revved up for trans Nepali domestic workers. Purely hypothetical Western gay businessmen facing persecution, blond boys flying first class and unfairly driven from Abu Dhabi like Sarah Jessica Parker, are way more likely to stimulate the cash flow.

Bad migrants vs. good: Asian construction workers in Qatar (top); Sex and the City 2 girls in Abu Dhabi (actually filmed in Morocco; bottom, if you didn't guess).

Bad migrants vs. good ones: Asian construction workers in Qatar (top); the Sex and the City II girls in Abu Dhabi (bottom, if you didn’t guess).

And that shows a third lesson. Some people do matter. Some stories do break through. There are more important travelers than migrants or refugees. This story has legs because it implies that tourists, innocent people from the West, can be swept up in Egypt’s series of unfortunate events.

Sometimes tourists are victims of rights violations, and that must be condemned. But the most effective condemnations draw connections. What Westerners endure can bring attention to what others suffer.

In mid-2013, after the Egyptian coup, queer Canadian filmmaker John Greyson and his colleague Tarek Loubani were arrested in Cairo. They were “tourists” in a broad sense, passing through on their way to work in Palestine. The paranoiac regime, which treats all real or imaginary opponents as terrorists, accused them of conspiracy. The international campaign to free them, politically astute, brought into focus the violent repression Sisi also inflicted on many others, including massacres of Muslim Brotherhood adherents. (A mark of how successfully Greyson’s and Loubani’s case illuminated Egypt’s whole human rights record was how they pissed off Canada’s equally terrorist-obsessed right wing.) And Greyson has passionately kept on doing so since his release.

On the other extreme, I have miserable memories of the embattled gay pride in Moscow in 2007. A flock of foreigners came, European politicians and minor celebrities, many hoping to garner a little publicity for the cause and themselves: get arrested briefly, spend an afternoon in jail, give a press conference. It was no more intrinsically offensive than taking selfies at Bergen-Belsen. They inadvertently drew the media away, however, from the young Russian marchers arrested at the same time, sent to jail in the Moscow outskirts with no cameras attending. They also monopolized the lawyers; the young Russians had none. I’m afraid the Moscow Pride circus is more typical of what happens when Westerners get involved than was John Greyson.

Nicholas Kristof, white-savior-in-residence at the New York Times, has written how nobody cares when he just describes foreign brown folks and their strivings. It takes a “bridge character,” “some American who they can identify with,” to “get people to care”:

It hugely helps to have appealing and charismatic characters … Often the best way to draw readers in is to use an American or European as a vehicle to introduce the subject and build a connection.

But it never works. Read Kristof and see: all the sympathy goes to the span itself, to the charismatic white connecting hero. Nobody’s attention makes it to the other side. Whatever happens to me, in Egypt or anyplace else, God save me from being a bridge to nowhere.

This bridge called your back: Kristof inspecting raw materials

This bridge called your back: Kristof inspecting raw materials

And here’s the heart of the matter. The context for this latest case is twofold. Egypt’s government has been cracking down on gender and sexual dissent for a year and half. But it’s also been whipping up xenophobia, fear of foreign influences, hatred of foreigners themselves. Now it’s figured out how to make those two kinds of incitement meet.

Westerners have been targets of Egypt’s xenophobic campaign, painted as conspirators against the country. Michele Dunne, an American expert on Egypt, was turned away at Cairo airport in December in retaliation for her criticisms of Sisi. Ken Roth of Human Rights Watch was expelled last August. Last month the government announced it would stop granting visas on arrival to most Western visitors, requiring applications in advance instead. It was a move to keep unwanted critics out. But Egypt understands how vital its already-moribund tourist industry is, and how restricting visas might scare the last few pocketbooks away. The measure was “postponed.”

Although this deportation case dates back seven years, the way the government is publicizing it now – while it’s arresting alleged LGBT people on a massive scale – suggests they have new plans to put these powers to use. The truth is, though, that Western tourists won’t be the easiest targets. Those who’ll suffer most will be from poorer African or Arab counties, those who don’t spend dollars, whose embassies won’t lift a digit to defend them: or – still more defenseless — suspected trans or gay people from Egypt’s communities of refugees.

Some Middle Eastern states have been welcoming to refugees. Syria – though one of the poorest countries in the region – took in waves of displaced Palestinians from the nakba till now, and hundreds of thousands of Iraqis after the Bush invasion. Egypt has not, on the whole, been on the hospitable side. The national identity inculcated since the 1950s is intolerant of ethnic difference and of influences from outside. The state has accommodated refugees – Sudanese since the 1990s, Iraqis and Syrians now – but reluctantly; it harasses them, denies them political rights or permanent status, and insists it’s only a transit point for loiterers who eventually must move along. And ever since Sisi took power, refugees have been vilified by state-promoted xenophobia. Syrians and Palestinians are especially singled out. But every refugee in Egypt lives in anxiety. There are plenty of LGBT folk among them. (Last fall a cohort of plainclothes security forces raided the apartment of a gay Syrian refugee I know. They searched his papers, computer, phone, and noted all the gay-related documents and photos. They didn’t arrest him. They just wanted him to know they were there.) This publicized decision will only sharpen their fear.

February, 2015: Syrian and Palestianian refugees on hunger strike to protest over 100 days of detention without charge in an Alexandria, Egypt, police station. See https://www.middleeastmonitor.com/blogs/politics/17086-syrian-palestinian-refugees-on-hunger-strike-to-protest-arbitrary-detention-by-egypt

February, 2015: Syrian and Palestianian refugees on hunger strike to protest over 100 days of detention without charge in an Alexandria, Egypt, police station. See https://www.middleeastmonitor.com/blogs/politics/17086-syrian-palestinian-refugees-on-hunger-strike-to-protest-arbitrary-detention-by-egypt

The fate of refugees in Egypt is not just abstract for me. It’s bound up with guilt. In 2003, working for Human Rights Watch, I lived in Cairo for several months. Two days after I arrived, police began arresting refugees, mostly African, in sweeping raids in neighborhoods where they clustered. Such harassment is recurrent; most were freed in days; but, covering the raids and talking to the victims, I got to know some of the community leaders. In the next months, they organized many meetings for me with refugees in Cairo, so I could hear their stories. I thought perhaps the documentation could push Human Rights Watch into reporting on the situation in detail.

Most of the people I talked to were South Sudanese, survivors of the civil war raging there for 20 years. We met in their cramped flats; in the dusty courtyard of All Saints Cathedral in Zamalek, an asylum where police rarely intruded; or in rundown Coptic churches in Shobra, where fellow Christians had afforded the South Sudanese some space.

Refugee claimants gather for admission to UNHCR offices in Cairo

Refugee claimants gather for admission to UNHCR offices in Cairo

The UN High Commission for Refugees (UNHCR) office in Cairo was and is one of the slowest in the world.  It could take UNHCR years — it still does — just to schedule an intake interview. Until the UN formally recognized them as refugees – three, five, seven years after their arrival – the displaced had no legal rights in Egypt at all; after that, they had to wait more years for the UN to resettle them in a third, safe country. Some had been in Egypt for well over a decade. Meanwhile, they endured constant harassment, joblessness, humiliation. Nobody outside the community had listened to them before. Women working for a pittance as maids told me about sexual harassment and rape. Some men sold their organs to survive. Police picked them up off the streets, beat them, ignored the UNHCR’s hapless interventions to protect them; there were stories that some refugees, randomly arrested, had been driven south and deported illegally back across the border, to Sudan and death. The waiting and fear drove some people mad. One courtly man of about fifty took me aside at a church meeting. He had been tortured in Sudan; he showed me a scar on his arm. He had many narratives of persecution, but most embarrassing now, he said was an unbearable rumor circulating all across Egypt that he had a tail. He showed me medical documents, testimonies elicited from doctors in English and Arabic, painfully certifying that he was tailless. He also gave me a typed personal statement, in English. “Among the many crosses I am compelled to Bear, in a long Journay and much Torture, the widespread libel that I am a Tail Wizard is completely Unfounded.” Others at the meeting treated him with deference, as if they envied the relief in his delusions.

I began to feel uneasy about these meetings. My presence was an implicit promise that I would do something, and there was nothing I could do. In February and March Egypt’s security state moved on to arresting and torturing hundreds of leftists opposing the Iraq war. I had to document that, and gradually my meetings with the Sudanese lapsed. Human Rights Watch, its refugee program stretched thin, never produced a report on these abuses (though in recent years they’ve documented, in harrowing detail, the monstrosities traffickers inflict on desperate African refugees in Sinai). I still think of my inability to provide some concrete assistance as one of the worst failures in my twenty-five year career, and I can’t remember it without shame.

Now there’s another basis, inscribed in law, for harassing some of them.

Refugee protest camp outside the UNHCR offices in Cairo, October 2005. Photo by Vivian Salama, Daily Star

Refugee protest camp outside the UNHCR offices in Cairo, October 2005. Photo by Vivian Salama, Daily Star

Some refugees tried to speak up about their endless agonies. Two and a half years after I left, in September 2005, Sudanese started a sit-in before the Cairo UNHCR offices, demanding faster processing of their claims. The UN treated the protest with contempt; one staffer accused them of wanting “a ticket to go to dreamland.”

Three months passed; then UNHCR called in the authorities. On December 30, 4000 police surrounded and shot at the unarmed Sudanese. At least 27 died, including eight women and between seven and twelve children. Thousands were arrested; among those, hundreds who had not yet been given refugee cards by UNHCR faced deportation. The first dozen Cairo planned to deport included three women and a child. “Egypt has dealt with the sit-in of the refugees with wisdom and patience,” the country’s foreign minister said.

A Sudanese removes rainwater from a tarp in the protest camp, December 25, 2005. Five days later police attacked the camp. Photo by Shane Baldwin, New York Times

A Sudanese man removes rainwater from a tarp in the protest camp, December 25, 2005. Five days later police attacked the camp. Photo by Shane Baldwin, New York Times

Ten years later, this massacre is forgotten in Cairo. It never figures on the list of Mubarak’s crimes. Nobody bothers to remind UNHCR of its complicity in the killings. Refugees don’t matter.

The massacre did merit brief mention in a text that’s become a Bible for right-wingers warning about the Muslim peril. Reflections on the Revolution in Europe: Immigration, Islam, and the West is a 2009 book by conservative American journalist Christopher Caldwell. Seemingly ignorant that the demonstrators were Christian, he uses the protest to press his case — distorting it, insulting the dead in the process:

3000 Sudanese camped in front of the UN High Commissioner for Refugees in Cairo to seek refugee status. What was bizarre was that many of them already had refugee status in Egypt. So these were bogus petitioners in the sense that what they were really seeking was passage to some country more prosperous than Egypt. The sad ending to the story, though, shows that the line between “real” and “bogus” calls for help is not always easy to draw: in the last days of 2005, Egyptian riot police attacked the encampment, killing twenty-three [sic].

Bogus vs. real migrants: Caldwell, a US citizen, in London in 2014 (top); wounded Sudanese refugee arrested by Egyptian police, December 30, 2005 (bottom)

Bogus person vs. real one: Caldwell, a US citizen, in London in 2014 (top); wounded Sudanese refugee arrested by Egyptian police, December 30, 2005 (bottom)

That’s not true. Either Caldwell, who claims to be an immigration expert, doesn’t understand refugee law, or he’s just lying. I think he’s lying. Egypt doesn’t grant anybody “refugee status.” It has no national asylum procedures at all. It gives people whom the UN recognizes as refugees (the status most of the the protesters were still waiting for) a limited right to stay, but only temporarily, on the understanding they will eventually be resettled elsewhere. The dead Caldwell defames were not “really seeking” someplace “more prosperous.” They were asking the UN to do its mandated job, to find them a country that would give them the legal right to live.

Caldwell is a fool, but he’s right on one thing: this is all about the bogus and the real. It’s about belonging. Egypt’s government is now deciding who belongs or not, who’s a real or bogus person. The gays are fake people, void of the authenticity and weight that might entitle them to stay.

But isn’t that how we readers, sympathizers, citizens use these stories too, to separate the wheat from chaff? We winnow the fit objects of our concern from the unwanted ones, from those whose sufferings don’t ring true because we don’t recognize ourselves in them. Tourists count, not migrant workers. White travelers count, not brown refugees. Gay, yes; transgender, no. We each mistrust the incomprehensible stranger, you as much as I do. We were all strangers once in the land of Egypt. But we forgot.

Joseph Tissot, The Flight into Egypt, ca. 1886-1894

Joseph Tissot, The Flight into Egypt, ca. 1886-1894

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Indiana: It’s more than marriage

Indiana_Road_SignThe furor over Indiana’s on-and-off “religious freedom” law is a strange one. Left and right argue about not only the bill, but whether it even matters. If you’re against it, this is a historic battle, Selma all over again. If you’re for it, like Indiana’s hapless governor, it’s just a tiny little law, a trivial pointless bill that doesn’t actually have any effect at all, so insignificant it’s hard to see why they bothered to pass it.

Of course this isn’t Selma. March against Mike Pence all you want; you won’t get shot. If the one side is prone to over-dramatizing itself, though, the other flat-out lies. Trivializing the law is deeply mendacious, and even the right wing can’t stay committed to the fiction; for,behind the shoulders of the soothing temporizers waggle the true believers, screaming out dirty secrets like the madwoman in the attic: the Bryan Fischers, babbling that minus absolute license to discriminate, white Christian people will be slaves. Yet you still hear that the act’s only impact would be making it mildly harder to find a florist. This is exactly what’s most dangerous about the bill: the claim that it isn’t so dangerous at all.

Structural transformation of the public sphere:  A London coffee house, by William Holland, 1798

Structural transformation of the public sphere: a London coffee house, by William Holland, 1798

The Indiana law is dangerous because it chips away at core values of American law: how we define public life and public space, and rights within them. The word that counts is “public.” For Jürgen Habermas, whose theories comprise not quite a history but a coherent mythology about our era, the eighteenth century saw the creation, for the first time in modern Western societies, of publicsnetworks of (mostly) men who cultivated spaces outside both home and government to debate, discuss, and form solidarities around questions of mutual moment. This sociable Eden immediately suffered a Fall: on the one hand growing governments tried to constrict it, and on the other burgeoning capitalist forces demanded all concerns of the commons be economized and made private ones. Habermas’ myth is true enough to be useful. It encapsulates a sense that the bounds of what’s “public,” the realms of free communication and confrontation and elective solidarities, are increasingly endangered. The United States is the world’s first fully capitalist country; it’s also chafed for a century or more under an ever-more secretive government, hating transparency, hoarding information. And it has been ground zero for just these battles.

A long struggle pervades American history, to reclaim life from both “private” enterprise and the state like land won back from the sea, to expand and defend the “public” realm, the  possibilities for public decision. Edward Snowden’s revelations are consistent with this theme; but so was the whole civil rights movement. This history is varied and it’s violent. The attempted Indiana law was a small step back. But it was a dire precedent.

What’s at stake is not access to geraniums or wedding chapels. The debate is definitional; it’s about how rights and spaces will be allocated. It takes place, ominously, in a society that economic and cultural forces and the Supreme Court are all making more “private” once again. Too bad so many activists condemn the law without calling out its context, or clarifying what its corrosive evasions mean.

Back to Harvard, face to the future: Sumner's statue in the Square

Back to Harvard, face to the future: Sumner’s statue in the Square

1. Public accommodations

To talk about the public sphere in the US, you need to talk about the Civil Rights Act of 1964. Signed five decades ago, when I was one year old, it shaped my life. It didn’t protect me, a white kid in the South, from discrimination; it protected me from myself. It did not end but it shook the terms of a former world where inequality was the normative form of existence as soon as you locked your front door behind you. It’s sometimes difficult to remember how much outrage it evoked at the time; for most of us, the law’s principles are now integral to American public life. But their prehistory goes back at least another hundred years, to the aftermath of the Civil War.

The prehistory was a battle for a new definition of what was “public” in American law and experience. That definition came in answer to American slavery, which had made human beings possessions, as private as any other legally protected property.

For years, I walked almost every day past a statue of Charles Sumner, morosely moored on a traffic island in Harvard Square, the site a symbol of his isolation in life, his oblivion after. Fierce abolitionist, Massachusetts Senator from 1851 till his death in 1874, Sumner was eloquent, contumacious, principled, perpetually enraged. In 1856, after he gave an anti-slavery speech, a South Carolina Congressman tried to beat him to death on the Senate floor. Sumner suffered from the wounds for the rest of his life.

Uncompromising and uncollegial, Sumner was given little role in the passage of the Fourteenth Amendment, which in 1868 put equality before the law in the Constitution. The Amendment left Congress to codify what it meant. In 1870, Sumner introduced sweeping legislation to do that. To him, repairing the effects of slavery required guaranteeing African-Americans open access to the public sphere in its widest definition. Legal equality was not just a right against the government, but a right across public life; or, to put it differently, the right of equality the Fourteenth Amendment affirmed was not just an obligation on how the government should treat people, but should shape all public services and places. `Even “private” businesses and associations, as long as they served the public, would have to be realms governed by rights.

Thomas Nast, "Uncle Sam's Thanksgiving Dinner," Harper's Weekly, November 1869. An integrated if slightly awkward dinner party sits down to celebrate equality before the law and universal suffrage.

Thomas Nast in Harper’s Weekly, November 1869. An integrated if slightly awkward dinner party sits down to celebrate equality before the law and universal suffrage.

Sumner’s bill mandated that “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment” of all public accommodations, regardless of “race and color,” including  “inns, public conveyances on land or water, theaters, and other places of public amusement”: and schools and — imagine this in the current controversy — churches. The scope remains astonishing. English common-law tradition had given government some powers to ensure that institutions calling themselves “public” (like inns or “public houses”) should actually be open to the public.  Few previous laws had ever used such powers so sweepingly, and with the specific end of preventing invidious discrimination. (See the endnote below.) It was an especially remarkable assertion in a laissez-faire era, in a country with laws largely designed to facilitate, not regulate, a capitalist economy. It involved defining an expanded public sphere ruled by rights rather than the market, of which “private” businesses formed a subordinated part. Sumner explained this in debate with a Georgia Senator:

The Senator may choose his associates as he pleases. They may be white or black, or between the two. That is simply a social question, and nobody would interfere with it. The taste which the Senator announces he will have free liberty to exercise … but when it comes to rights, there the Senator must obey the law and I insist that by the law of the land all persons without distinction of color shall be equal in rights. Show me, therefore, a legal institution, anything created or regulated by law, and I show you what must be opened equally to all without distinction of color. [emphasis added]

Contemporary engraving of "The Death of Charles Sumner," complete with weeping African-American seated by his foot

Contemporary engraving of “The Death of Charles Sumner,” complete with weeping African-American seated by his foot

Congress finally passed the Civil Rights Act in 1875, a year after Sumner’s death. (The dying Senator had begged a visitor: “Take care of the civil rights bill … don’t let it fail.”) It was the last civil rights law for 82 years. The final version omitted churches and schools —  and cemeteries. The bill’s enforcement provisions were weak. In any case, national Republicans — who owed their rule after the corrupt 1876 election to compromises with the South — soon lost interest in enforcing it at all.

In 1883, in an amalgamation of suits known as the Civil Rights Cases, the Supreme Court overturned the law. With only one dissent, it found the Fourteenth Amendment did not give the Federal government power to regulate private commerce in the name of equality. The Court thus semaphored its approval of racist segregation, affirmed thirteen years later in Plessy v FergusonMany at the time compared the decision to Dred Scott. African-Americans and their supporters held “indignation meetings” in city after city to protest, vainly. An new system of intensified oppression was settling across the country.

News report on an 1993 lynching. Exactly sixty days later, the Supreme Court overturned the Civil Rights Act.

News report on an 1883 lynching. Exactly sixty days later, the Supreme Court overturned the Civil Rights Act.

Eighty years later, pressed by a massive social movement, Congress passed the Civil Rights Act of 1964. Its “public accommodations” provisions resurrected and expanded the terms of the 1875 Act; it added a ban on race- and sex-based discrimination in most employment. Proposed by Kennedy, passed under Johnson, this is probably the last half-century’s most significant US law. It has hugely influenced the torrent of equality laws passed worldwide since. Though many of them far transcend its protections, the vision of a public sphere including “private” enterprise remains essential.

President Johnson hands a pen to Rev. Martin Luther King, Jr., after signing the Civil Rights Act, July 2, 1964

President Johnson hands a pen to Rev. Martin Luther King, Jr., after signing the Civil Rights Act, July 2, 1964

Unlike the 1875 Act, the Supreme Court found the 1964 one constitutional. (A Georgia motel owner sued immediately on its passage, claiming Congress had no “power to take away the liberty of an individual to run his business as he sees fit in the selection and choice of his customers.” A unanimous Court held against him.) But this was because Congress grounded the law in its Constitutional powers to regulate interstate commerce, a basis for broadening federal authority at least since the New Deal — and not just in the Fourteenth Amendment. The Supreme Court has never overturned its racist and restrictive 1883 decision in Civil Rights Cases. As Akhil Reed Amar observesCivil Rights Cases has never joined Dred Scott and Plessy v Ferguson in the American anti-canon of rejected judicial errors. This is troubling for two reasons. First, the Court has never acknowledged a Federal power to regulate the “private” sphere based on the Equal Protection Clause. (In fact, conservative Chief Justice Rehnquist approvingly cited the Civil Rights Cases in his 2000 majority opinion denying Federal protections to victims of gender-based violence.) Second, as the Court turns rightward, it has gradually chipped away at Congress’s powers to regulate business under the Interstate Commerce Clause as well. Corporations have been given free speech rights and now rights of religious conscience beyond the reach of Congress. (Rehnquist’s 2000 decision also denied that violence against women had a “substantial” enough effect on “commerce” to be a concern for Federal courts.)

Ensuring public equality should be a settled principle of US public life. There is just enough slight wobble in its foundations in US law for an unreconciled and unreconstructed right wing to sense an opportunity.

2. Religious freedom

Such a pretty little plant to cause so much trouble: Peyote cactus, domesticated

Such a pretty little plant to cause so much trouble: Peyote cactus, domesticated

Congress passed a Religious Freedom Restoration Act (RFRA) in 1993. Three years earlier, the Supreme Court had held that a Native American tribe had no right to violate drug laws by using peyote in religious ceremonies. (Justice Scalia, for the majority, wrote: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”) The bill partly rolled back that decision, requiring courts to apply strict scrutiny to apparently neutral laws in deciding how they should affect religious practices. Let them eat cactus, Congress said.

The bill’s drafters evidently didn’t envision it could permit actions harming others or restricting their rights — for instance, otherwise unlawful discrimination. The Act licensed actions indifferent in their effects on the rights of others. (In the context of the peyote case, the Act tacitly affirmed that “illegal” drug use had little impact on anyone except the user.) But they didn’t draft well. Constitutional lawyer Marci Hamilton writes, “Civil rights groups were blind (or deceived) … when the first RFRA was enacted.” Even Congress closed its eyes to what was coming.

In 1997, the Supreme Court decided the Act did not apply to the states. As a result, 20 states passed their own versions, effectively identical.

State versions of the Religious Freedom Restoration Act, with dates of passage, as of 2014

State versions of the Religious Freedom Restoration Act, with dates of passage, as of 2014

One defeat and one victory for the religious right set off the current furor.

Martyrs: Owners of the New Mexico photography shop make witness to the world

Martyrs: Owners of the New Mexico photography shop make witness to the world

a) The New Mexico case.  New Mexico has an RFRA (since 2000) but also a legal ban on sexual orientation- and gender identity- based discrimination (since 2003); it’s one of only 17 states to include “public accommodations” as well as employment in the latter. Nobody really thought these would come head to head; but in 2006, a same-sex couple planning a commitment ceremony filed suit when a wedding photographer refused their business. The photographer claimed religious freedom. In 2013, the state Supreme Court found the business liable. (The next year, the US Supreme Court refused to review the decision.) The New Mexico courts held the state RFRA didn’t apply, since it only limited government actions, not suits between private parties. Dissed but endowed with a new set of martyrs, the right started plotting to strengthen the RFRAs.

b) Hobby Lobby. In 2014, by a 5-4 vote, the Supreme Court struck down the Obama Administration’s requirement that employers cover certain contraceptives for female employees. Hobby Lobby, a chain of arts-and-crafts stores, had sued because it didn’t like birth control. The Court held the Federal RFRA protected the religious opinions not just of individuals, but of corporations — “closely held” ones, at least, where a few stockholders predominated. Like robots feeling the inward dawn of A.I. in a sci-fi movie, companies tingled to the neural thrill of personhood surging through their circuits: first free speech rights, now religious conscience. I’m sorry, Dave. I’m afraid I can’t do that. A business has beliefs, and can claim they trump the law, no less than a church- or mosque-goer can.

AI: I am a $90 billion corporation, and I love you, Mommy

Artificial personhood: I am a $90 billion corporation, and I love you, Mommy

The Indiana law was framed to fix the first case, and take advantage of the second. Although the hypocritical governor lied that the law was no different from all the other RFRAs out there, its drafters made it stronger in precisely these two ways:

  • It allows religious freedom as a defense “regardless of whether the state or any other governmental entity is a party to the proceeding” — that is, in private lawsuits;
  • It explicitly lets for-profit businesses claim rights based on “the free exercise of religion.”

Fears over same-sex marriage gave the excuse for passing this law. But was the right wing sincerely worried about perverts forcing the hands of florists? Or is that a pretext, fig-leafing for some other motive?

Indiana has no statewide protections for sexual orientation or gender identity. 11 cities and counties do have local anti-discrimination ordinances, but those come almost without enforcement powers. Indiana’s new RFRA would make those laws even less enforceable; any attempt by victims to complain could be blunted by a religious-freedom claim. In the rest of the state, though, it would just confirm that LGBT people already have no recourse. It might encourage employers to discriminate more, knowing the law supports them; but you can’t take away rights that aren’t there.

Far less discussed are its possible effects on other discrimination claims. Indiana has its own civil rights laws covering the usual suspects — race, color, national origin, ancestry, religion, sex, age, disability — and its own Civil Rights Commission. So what if someone has a religious objection to equal treatment on these grounds?

Back off, Jews, out of my bakery: Icon of St. Gavriil Belokstoksky

Back off, Jews, out of my bakery: Icon of St. Gavriil Belostoksky

What if your faith forbids renting to interracial couples, or hiring the disabled? What if God doesn’t want you letting Muslims in your establishment? 2 Corinthians 6:14 is clear on the subject: “Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness?” Meanwhile, one of the saints of the Russian Orthodox Church is the child Gavriil Belostoksky, canonized in 1820 after Jews ritually slaughtered him — so goes the pogrom-provoking story. If a Russian bakery in Evansville declines to serve Jews, lest they sprinkle their blinis with the holy blood of infants, who is to gainsay the sanctified exclusion?

Let’s be clear: probably none of these would succeed. Indiana’s RFRA wouldn’t “overrule any [and all] existing anti-discrimination laws,” as some shriek. But it would complicate them. It would confuse the cases, leaving legal fog behind it, giving a potential basis for the discriminators’ defense. It would shift the burden slightly toward the government (or someone pressing a private lawsuit), forcing them to show, over and over, why there’s a compelling interest in overriding these factitious claims of faith in this particular case of discrimination, and why there’s no less restrictive way to stop it. It would encourage people to come up with divine mandates for despicable behavior, and it might make a few people think twice about pressing discrimination claims, given the extra firewalking they could be compelled to do. It would chip away at existing protections in the law. If you hate the whole idea of equality in law, that’s a victory. This confusion, this incremental erosion, is the point of the new-style RFRAs.

Indiana, of course, is reeling from bad press and boycotts; now it’s passed a “fix” for the law, a weird sort of partial victory. The retreat leaves businesses as well as individuals their “enhanced” religious liberty claims, but only if they don’t discriminate in services, housing, or employment. And sexual orientation and gender identity are mentioned as reasons not to discriminate, for the first time in Indiana law. Except this doesn’t give LGBT people any rights. You can still discriminate; you just can’t claim religion as a pretext — but then, you don’t need to. What’s the point of mentioning LGBT people at all?

For other identities, a political ambiguity persists under the legal clarification. Discrimination was made easier for a few days, and even if the new language partly retracts that, the fact survives the furor. Somebody out there will feel freer to act on his prejudices, or make them quiet company policy. This very ambiguity is also the point of the new-style RFRAs.

Public accommodations II: "Sorry, but you have an incurable skin condition." Herblock cartoon, Washington Post, 1963

Public accommodations I: “Sorry, but you have an incurable skin condition.” Cartoon by Herblock, Washington Post, 1963

The Indiana outrage has shown that lots of Americans will stand up for LGBT rights, even as lots of others oppose them. It’s also shown, though, that there’s no broad coalition to defend the principle of equality. They attack it piecemeal — and we defend it the same way. The gays treat reproductive rights as irrelevant; they had little or nothing to say about Hobby Lobby. But the threats Indiana’s law posed to women also went unnoticed. The RFRA-makers use same-sex marriage as the thin end of the wedge. But they mean to carve out space for every kind of discrimination: to undermine every equality claim they can, including those confirmed in the national canon of civil rights protections.

And it still could work. As Marci Hamilton notes, fifteen years ago “it was widely assumed by the civil rights community that Title VII” — the gender-equality section of the Civil Rights Act of 1964 — “would be a bulwark” against attempts to use the Federal RFRA to roll back women’s rights. “Hobby Lobby proved that they were wrong.” The threat is serious, the defenses fragile, and that’s why the focus on florists is reductive. Even for gays, discrimination generally goes beyond geraniums. As Garrett Epps writes, “public accommodations are not usually about wedding photos—they are about pediatricians, about pharmacies, about daycares or private schools for your children. They are about being able to shop and eat in public without exclusion and humiliation.” That’s where the Indiana law gave scope for discrimination. And in fact, as these laws keep coming, the legal threats to queers in public space turn physically painful. Texas, for instance, is trying to write an “enhanced” RFRA into its constitution. But three bills before its legislature would also criminalize both trans people who enter the wrong” toilet, and business owners who fail to “verify the gender of individuals using their restrooms.” That’s a direct threat to trans folk’s ability to hold jobs, go outside, access the public world at all.

Yet the LGBT fixation also ignores the breadth of the threats, the potential range of victims. Sure, you could find another florist. And an African-American whom some godly proprietor kicks out could find another lunch counter, or job, or home. It’s not that these stories are equivalent; they aren’t. But the principle is the same. It’s Sumner’s principle, again endangered: that the public sphere should be for everyone.

Public accommodations II: "The White traveller has no difficulty in getting accommodations, but with the Negro it has been different." The Negro Traveller's Green Book was published from 1936 to 1966, to help African-American tourists in the segregation age find places to stay, eat, shop, or use restrooms -- "without encountering embarrassing situations."

Public accommodations II: “The White traveller has no difficulty in getting accommodations, but with the Negro it has been different.” The Negro Traveller’s Green Book was published from 1936 to 1966, to help the small numbers of African-American tourists in the segregation age find places to stay, eat, shop, or use restrooms — “without encountering embarrassing situations.”

3. Equality

An uneasy coalition of libertarians, social conservatives, and open racists has been fighting this battle since well before 1964. Their goal isn’t to protect “religious freedom.” They want to change and chain up public space, close off access, put paid to the principles of American civil rights law. “Religious freedom” is just a way to make the effects of inequality seem minimal, its appeal seem broad.

If religious freedom doesn’t turn you on, that’s fine. Already they’re thinking way beyond it. They’ll defend unequal treatment as a First Amendment issue. When you refuse a Jew a room in your hotel, you’re really just saying, “I am unfavorably disposed toward Jews,” and that’s free speech. Or they’ll claim they actually defend difference in the public sphere, by letting some folks drive it out. “Civil society is where life happens; we want it to be as rich an ecosystem as it can be,” Jonah Goldberg writes in National Review, not previously known for defending either diversity or ecosystems. “All RFRA was intended to do was to give millions of Americans a little space to be and do what their religion tells them they must.” Or they’ll claim everybody should have the right to discriminate, not just the godly. If the non-religious can’t discriminate just like the religious do, that’s discrimination against them:

As vital as religious liberty is, what about the rights of the 25 percent of Americans who have no faith? The safe harbors that these laws attempt to dredge should not, themselves, discriminate against nonbelievers. … What if you are an atheist who really objects to gay marriage? Must you still bake cakes for gay weddings, or will pro-shariah Muslim bakers be the only ones who can walk into court and ask to be excused from doing so?

Cover of NAACP pamphlet explaining the Civil Rights Act

Cover of NAACP pamphlet explaining the Civil Rights Act

Meanwhile, Ross Douthat, the New York Times‘s resident rightist, warns that protections for LGBT people take the tools used against racial discrimination much too far. “In the annals of American history, both Jim Crow and the means we used to destroy it are, well, legally and culturally extraordinary.” If that’s true, public equality for women and the disabled is overreach too. The Supreme Court already gutted the Voting Rights Act. Should the Civil Rights Act of 1964 go next?

Not likely. Not yet. But that’s what they want. The battle is about what public space will look like, who’s empowered to appear. Reactionary partisans of the ancien régime dream of driving out everybody who’s occupied their territory in the last fifty years.

It’s similar to the struggles in eastern Europe over LGBT Pride marches, brutalized by skinheads and banned. Many of those countries decriminalized “sodomy” in the 1990s under EU pressure, grudgingly giving gays bedroom freedoms; but conservatives draw the line in public, at access to the streets. With the rule of law underdeveloped there, though, violence displaces legislation as the curb of choice. More salient as a parallel are the measures against Muslims in some western European nations. In France, there’s been the drive to ban the veil and other emblems of religious identity in public; in the UK, the constant intimidation and surveillance — by government and by “human rights” vigilantes — of Muslim communities, speakers, NGOs, mosques. Both reveal revulsion against an unfamiliar immigrant-borne identity, among older, whiter groups who thought they had sole tenure on citizenship: in particular, an insular and arrogant secularism that strives to stamp out any alternatives. Many gays and Muslims might might reject the analogy. But it suggests how this controversy too isn’t about freedom of religion, or freedom from religion. It’s about power. It’s about control.

Police arrest a woman under the new law against wearing the niqab in public, Paris, April 12, 2011. Photo: European Press Agency

Like being trans in Texas: Police arrest a woman under the new law against wearing the niqab in public, Paris, April 12, 2011. Photo: European Press Agency

From the purely queer perspective, you have to ask: how did Indiana happen to us? What makes these backlash-fed attempts at rollback possible is this: while same-sex marriage swept the country, most of us still have no defenses against discrimination. 36 states permit marriage now; less than half that many protect LGBT people in work, housing, public accommodations. The backlash against the former thus finds people’s material well-being easy prey. Would things be different if the priorities of American’s institutional gay movement had been different? If, instead of such a single-minded focus on weddings, they had fought hard for civil rights laws in employment and public accommodations — for tangible equality?

Why didn’t they? Equality is such a touchy term. It’s far easier to get it when it doesn’t cost anything. Marriage has the advantage of making few demands on either government or business, unlike anti-discrimination laws. (The alleged burdens it places on non-juring florists are so nugatory that nobody even imagined them before the right dreamed them up). But real equality always costs; its implications are economic. The language of civil rights protections often veers into abstract realms of legal formalisms, but few who fought for those standards forgot their tangible impact: not just offering discursive recognition to people, but redeeming livelihoods and lives. Lyndon Johnson, telling a gaggle of governors why the Civil Rights Act of 1964 was needed, burst into a manic oath of uplift to all the country’s wretched and poor: “So that we can say to the Mexican in California or the Negro in Mississippi or the Oriental on the West Coast or the Johnsons in Johnson City that we are going to treat you all equally and fairly.” Clean up the language, take away the self-pity: what politician today would dare commit himself like that? Promises to the poor make the rich angry. To pass a civil rights bill now, you’d have to swear on the God of Genesis that it wouldn’t actually help anybody at all.

Compare Hillary Clinton. “Extreme inequality has corrupted other societies,” she warns. But:

Mrs. Clinton was vague when it came to solutions. …. Though she derided the Republican practice of cutting taxes on the wealthy, she made no mention of tax increases or more aggressive measures, like capping the pay of chief executives or modestly taxing stock market transactions.

Any nerve Clinton ever had is Novocained now by Wall Street money, which pulls the teeth of both her policies and prose. Speaking of inequality to a “well-heeled crowd,” she said: “We have to have a concerted effort to meet a consensus about how to deal with this.” What brave rhetoric! It’s George W. Bush on Quaaludes.

Inequality? Two of us are equal, and the third, she's trying. Hillary Clinton and billionaire Bill Gates, with billionaire Howard Buffett (Warren's son) between them

Inequality? Two of us are equal, and the third, she’s trying. Hillary Clinton and billionaire Bill Gates, with billionaire Howard Buffett (Warren’s son) between them

That’s the fix we’re in. We imagine equality as an invitation-only ceremony: let them eat wedding cake. But others are starving outside, and at any moment we could join them. The deeper implications even of a fiasco like Indiana’s evade us.

Why are the gays ecstatic when corporations side with us? True, their clout makes a difference when properly put to use: the ebb of investment forced Indiana’s governor into full retreat. But it’s opportunistic friendship they’re offering, not a marriage proposal. Apple and Walmart object to religious-discrimination laws because they know it’s good business to be open to all consumers. But none of them complained about the Hobby Lobby decision, which quashed a requirement to give workers benefits. Those cost money. Tim Cook wrote no op-eds defending women’s rights to birth control.

Corporations may sometimes use their power for human rights, but corporate power is still a problem. And when Tim Cook intones “we will never tolerate discrimination,” he’s making a sales pitch, not a promise. Apple benefits plenty from inequalities in the labor market. There’s a reason it subcontracts work to high-tech sweatshops in China, where the wages are risible, the exploitation rife. Meanwhile, in California, Cook’s corporation bars construction contractors from hiring workers with criminal backgrounds. Blanket employment bans based on criminal record can violate Federal law — according to the Equal Employment Opportunity Commission, which enforces the Civil Rights Act of 1964. Mark Ames writes,

Discrimination against ex-offenders is a major ongoing problem that exacerbates poverty, inequality and racism; in an incarceration-mad state like California, Apple’s policy imposed on construction companies it hires means worsening inequality and cycles of poverty for a problem that disproportionately affects people of color.

For all his invocations of his Alabama childhood, if the Civil Rights Act of 1964 comes under attack, I doubt Tim Cook is going to defend it.

The decades after Civil Rights Cases and Plessy v Ferguson were the Barbarian Ages of American law — and not just for racial freedom. Courts refused to use the equal protection clause to make government protect the disenfranchised and the lynched. They used the due process clause to keep government from protecting anyone else. During the so-called “Lochner era” in the first forty years of the twentieth century (named for a Supreme Court decision overturning limits on the work week), judges rejected child labor laws, health and safety laws, almost any restriction on the all-mastering, untrammeled market. Racism dominated the political world, laissez-faire indifference the economic. Together they subjugated the public sphere, under the dual rule of prejudices and prices. The expansion of Congress’s interstate commerce powers that made the 1964 Civil Rights Act constitutionally possible grew as a tool to reverse the Supreme Court’s sacralization of private business.

No one thinks the dark era of counter-Reconstruction could return in full; but there are echoes. New laws chisel away at civil rights principles. States are stealing voting rights, while the Supreme Court lops the Federal government’s authority to intervene. Corporations assume personhood, then human rights, then oligarchic powers. The gay movement indulges gauzy wedding fantasies; in the real world, run by Walmart and Apple, inequality metastasizes. A qualified victory came out of Indiana. But meanwhile the freedom to access the common world recedes. A long American struggle strove to create a broad public sphere governed by rights. That sphere is shrinking. No temporary triumph will last unless we defend the principles of public life, as political beings, together.

Equality at bay: South Carolina Congressman Preston Brooks canes Charles Sumner on the Senate floor, 1856, from a contemporary engraving

Freedom at bay: South Carolina Congressman Preston Brooks canes Charles Sumner on the Senate floor, 1856, from a contemporary engraving

NOTE. English common law imposed duties on certain private entities that offered services to the public. Lord Chief Justice Holt’s 1701 dissent in Lane v Cotton definitively formulated the principle:

If on the road a shoe falls off my horse, and I come to a smith to have one put on, and the smith refuses to do it, an action will lie against him, because he has made profession of a trade which is for the public good ….If an innkeeper refuses to entertain guests where his house is not full, an action will lie against him and so against a carrier, if his horses are not loaded, and he refuses to take a packet proper to be sent by a carrier.

A certain idea of non-discrimination lies latent here. However, the American context of comprehensive racist restriction drew forth responses applying that governmental power specifically to inequality. In Massachusetts, Charles Sumner himself helped argue Roberts v Boston in 1849-50, a failed attempt to bring about school integration by litigation. The failure led, however, to Massachusetts enacting the first school integration law in the US, and — in 1865 — to the first statewide law prohibiting race discrimination in public accommodations. These in turn were models for Sumner’s national civil rights bill.

Most of these were measures expressly couched against property rights. They led to a conservative backlash expressly associating property rights with discrimination. Robert C. Post and Reva B. Siegel note

Although Anglo-American common law had imposed on at least some business owners the duty to serve customers on a nondiscriminatory basis, the linkage of property ownership with the liberty to discriminate found increasingly forceful expression in the decades after the Civil War as white Americans invoked racial notions of associational privacy to justify practices of racial segregation in both public and private spheres.

Post’s and Siegel’s analysis of the arc leading from Reconstruction to measures against gender-based violence amply repays reading. My thanks to Danish Sheikh, of the Alternative Law Forum in Bangalore, India, and Mindy Chateauvert for their guidance here.