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

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.

Fashion police

Accessorized at the altar: Model Bianca Balti displays devotion in the Dolce & Gabbana Fall/Winter Collection. Shot by Pierpaolo Ferrari for Tatler Russia, September 2013

Accessorized at the altar: Model Bianca Balti displays devotion in the Dolce & Gabbana Fall/Winter Collection. Shot by Pierpaolo Ferrari for Tatler Russia, September 2013

I agree; fashion is an art. But it’s a strange one. The other arts always held out promise of escape, or at least aloofness, from the ravages of time; they gesture at a world more lasting than our fragile and fugitive flesh; from a vantage mimicking eternity, they pass judgment on our inconstancy, like Rilke’s marble statue: “You must change your life.” Fashion, though, is within time and of the moment. It feeds on the awareness that what’s beautiful this spring won’t last till next season. Impermanent in essence, it inflicts the same transience on its consumers. You merit fashion mainly in those evanescent years when you are young and thin enough to be worthy. Brightness falls from the air; Prada has no patience for middle-aged weight gain. “The grand problem,” Coco Chanel said, “is to rejuvenate women.” But of course that’s impossible. Mercurial and mutable, fashion rejuvenates only itself, yearly; it leaves the women behind.

Fashion is art for an era that believes in nothing but its own acceleration. Fashion is the Sublime indexed to inflation. As the world speeds up, moreover, it comes to resemble the fashion industry, which takes over all of life in an osmosis of mimesis; a business that runs on models, becomes the model for everything. Lately this is also true of human rights.

That’s my thought on the Dolce & Gabbana furor, which is a fable for our time. You know the basics. In an interview an Italian magazine published last week, the two living labels — gay, and former lovers too — announced they don’t believe in same-sex parenthood. “The family is not a fad,” declared Gabbana. And Dolce (they still seem to finish each other’s sentences) said, “I am gay, I cannot have a child.”

You are born and you have a father and a mother. Or at least it should be so. That’s why I’m not convinced by what I call the children of chemicals, synthetic children. Wombs for rent, seeds selected from a catalog. …. Procreation must be an act of love; even psychiatrists are not prepared to deal with the effects of these experiments.

Natural: Gabbana (L) and Dolce (R) in 2001. Photo by Bend.

Natural: Gabbana (L) and Dolce (R) in 2001. Photo by Bend.

The outrage broke when Elton John took to Instagram: “How dare you refer to my beautiful children as ‘synthetic’ …. Your archaic thinking is out of step with the times, just like your fashions.” That’s a cruel cut. And: “I shall never wear Dolce and Gabbana ever again. #BoycottDolceGabbana.” D&G retaliated by calling Sir Elton a “fascist.” RIcky Martin and Victoria Beckham and other celebrities jumped in to defend him. Overnight #BoycottDolceGabbana was trending. An employee of the Peter Tatchell Foundation named Peter Tatchell called for public protest:
Screen shot 2015-03-17 at 5.16.00 AM

D&G fought back by claiming, more or less, that Twitter terrorists were trying to censor and kill them.

CAO5f-KXIAAnRL4

Comparing themselves to the dead of Charlie Hebdo tended to magnify the anger. Still, Tatchell has also recently accused his detractors of wielding Twitter to try to murder him. Maybe the pair were bidding for his sympathy.

This whole story is pregnant, by God-given or artificial means, with implications.

First, the interview was astonishingly stupid for a couple of gay businessmen who cultivate a market niche among gay men. But it wasn’t spontaneously stupid. D & G have been trying to appeal to more conservative consumers for years. The pretext for the interview, in fact, was to publicize a project the company launched in 2013: #DGFamily, inviting people to submit portraits of ancestors, spouses, kids, to an online corporate collection. “The family is our point of reference,” the project website quotes Gabbana and Dolce. (Queer families who want to protest D & G might try sending their pictures; I don’t notice any same-sex couples in the gallery.)

This touching pictorial display was about rebranding D & G as traditional, less promiscuously trendy. When Gabbana claims “the family is not a fad” — thus distinguishing it from everything they’ve made their money on — he’s invoking a timeless realm beyond the vagaries of fashion. (“There are things that must not be changed,” Dolce chimes in, sounding like an oatmeal commercial. “And one of these is the family.”) That gives the company a tinge of permanence rather than constant newness. But he’s also lying. He’s making the family a fad; it’s part of an advertising campaign. The dynamic by which the traditional becomes the fashionable, and is sold as such, is a familiar one in capitalism. Nothing is immune to commodification, no value too solemn or secure to escape subjection to the capricious humors of the market. G and D may speak of the family as a pristine cultural unit, but they treat it as a luxury D & G product. Even the line about “synthetic” or “chemical” versus “natural” children sounds like a backhanded stab at polyester. The duo may well honestly believe in the virtues of an imaginary world where superglued mother-and-father units spawn incessantly without assistance; but it’s absurd for them to pretend this is purely a “personal view.” It’s calculated outreach to a different set of consumers. Their mistake was to mouth off too much, and anger other consumers in the process.

I'll see your wink and raise you a smile: Golce, or Dabbana, dreams wistfully of a happier, simpler time

I’ll see your wink and raise you a smile: Golce, or Dabbana, dreams wistfully of a happier, simpler time

Second: People have every reason to be outraged, most especially parents who dearly wanted children, and used the “synthetic” means — assisted reproductive technologies (ART) — the designers denigrate. But since the issue for D & G is the corporate image, the most meaningful response has been from those who ricochet images back. Parents have been posting beautiful photos of kids born through in-vitro fertilization (IVF), all over social media. It’s simple and lovely and it shames Dolce & Gabbana with a minimum of effort.

Screen shot 2015-03-17 at 4.57.15 AMIs it worth more energy than that, though? Cries for boycott and demonstrations seem disproportionate to the danger. If a self-styled human rights group like Tatchell’s foundation calls a protest, they must mean a human right has been violated. How? Insulting people isn’t the same as threatening their freedoms. D & G’s offensive statements will hardly make life worse for LGBT parents or their children. The designers don’t dictate laws; they don’t deepen stigma. (Alabama, where LGBT people’s families do face profound discrimination, is very unlikely to intensify its prejudices at the beck of two Italian queers.)

A real boycott, meanwhile, is a political act. What’s the purpose here? A real boycott should have demands; and no one has suggested getting anything from D & G. A real boycott should weigh strategies and targets. Scott Wooledge, a maker of Internet memes who chases all the big gay Twitter storms, had this dialogue with a skeptic yesterday; it suggests a paucity of thought and purpose.

Screen shot 2015-03-17 at 2.01.50 AMGot that? Remember: gays are never poor, and they shouldn’t worry about the poor. The poor are interchangeable as off-the-rack clothing. They can always earn a dollar an hour somewhere, sewing purses in 14-hour shifts to buy those ugly rags they wear.

This pseudo-boycott isn’t politics. It’s celebrity dodgeball, Elton versus the Italians. In the manner of big-name grudge matches, it also attracts celebrity wannabes like Peter Tatchell, straining to scrape up leftover attention. It’s a show of muscle-flexing too, a few folks boasting, on behalf of LGBT communities they don’t particularly represent: Don’t tread on me. But beyond that, there’s no goal.

In fact, there’s one place where condemning D & G’s statements might have some political effect: back home, in Italy. Same-sex couples enjoy no legal recognition in Italy, denied both marriages and civil unions. Single people cannot adopt children — and that also bars gay people, since even same-sex partners are legally single. A 2004 law on assisted reproductive technology severely limits its use, and prohibits it for single women or couples without legal status. On the other hand, Italy’s Constitutional Court has demanded a “protective law” for same-sex couples to confer recognition short of marriage; it has also rolled back several provisions of the ART law. Parliament ignored these judgments. There’s an opportunity to use this anti-Dolce backlash to boost campaigns for tangible, feasible change in Italy.

I love you. Are those synthetic fabrics? Dolce & Gabbana ad, 2010

I love you. Are those synthetic fabrics? Dolce & Gabbana ad, 2010

But nobody outside Italy has raised this possibility. It hasn’t crossed their minds. To follow through would take the boycott-backers a bit of research — ten minutes on Google. More seriously, it would require reaching out to Italy’s LGBT movement, hearing their advice, negotiating a strategy and message. That’s the hard part; that’s politics. And it’s much more satisfying to feel you’re a solo hero, fighting the demon designers on your own, at home, Tweeting.

And here’s another point.

Remember Russia?

Elena Klimova

Elena Klimova

On March 5, a court in Murmansk, Russia, punished an organization supporting lesbian, gay, bisexual, and transgender people. It fined them 300,000 rubles (around US $5000) because the group had failed to register as a “foreign agent,” the crippling label Russian law lays down for organizations that accept external funding. This came after another court, on February 12, slapped an identical fine on an LGBT group in Archangelsk, for the same crime. On January 23, a district court in Nizhny Tagil found Elena Klimova guilty of “propaganda” for “non-traditional sexual relationships,” under the famous, repressive 2013 legislation. Klimova had founded Children 404, a web project providing psychological and social support for LGBT youth. The judge denied her a lawyer and fined her 50,000 rubles (over US $800). What’s left of Russian civil society is being ground away, activist by activist, group by group.

You haven’t heard these stories, yet you have heard about Dolce & Gabbana. A year and a half ago, LGBT Russia was big news. That was when the fresh laws against civil society and LGBT speech still went largely unenforced. Yet from L.A. to London there were boycotts of Russian vodka, protests against Russian musicians, a whole hashtag storm around the Sochi Olympics. Foreigners trekked to Red Square to raise rainbow flags; celebrities like Harvey Fierstein and Elton John lamented the plight of queer Russians with Dostoevskian prolixity and pain. That lasted six months or more. Then it stopped. The same people Tweeting about Dolce & Gabbana now are often the ones who waxed loudest about Russia then; but with prosecutions under Putin’s laws launched in earnest, they’re silent. Fierstein — whose New York Times op-ed set off the 2013 frenzy — ignored the recent trials. So has Dan Savage, who back then demanded the gays swear off Stolichnaya. So has Jamie Kirchick, who became a minor star for walking off the Swedish set of Putin’s propaganda channel RT to protest homophobia. So has New York-based Queer Nation, which led many fine demos. Peter Tatchell Tweeted once about Elena Klimova’s sentence, but passed over the others. It’s deafening indifference.

Politics is so draining: Bar-goers dump Stolichnaya at a West Hollywood protest, 2013. Photo from International Business Times

Politics is so draining: Bar-goers dump Stolichnaya at a West Hollywood protest, 2013. Photo from International Business Times

It’s not as though Russia and Putin ceased to be headline fodder in the last year. But the Internet-fed furor over Russian homophobia was never a campaign capable of the long haul. There was never any effort to build a resilient structure, ally with other movements, or recruit students or reach into unions or explore other stories of international solidarity. There was never much strategy, just publicity. There were flash-mob attacks on labels like Stoli, which doesn’t prop up the Russian economy; there were no campaigns to get governments to stop buying Russian gas and oil, which do. There was faith that Barack Obama had some magic sway over Moscow. And there was wild over-optimism that hashtags and Embassy protests would manage, in six months, to make Vladimir Putin back down. Five days into the Stoli boycott, blogger John Aravosis exulted that they’d “pressure the most important brand of all, Brand Russia and its leaders in parliament and the Kremlin, to make permanent change on this issue – if for no other reason than to simply make us all just go away.” This assumed Putin gave a damn, or regarded Russia as a “brand.” He didn’t. When the promised quick victory failed to come, virtually everyone gave up. Energy and enthusiasm and idealism infused the campaigning; sadly, they were squandered. The laws still stand. The trials are starting. The Tweeters have moved on.

Campaigns like this try to make it look easy. They obscure the truth: that politics is not quick or solitary, that solidarity is hard. The gays have a boycott almost weekly, steady as the Two Minutes’ Hate: it’s Barilla, or Mozilla, or Brunei, or something. Few such campaigns have contributed to any substantive social change. Many don’t even try. Boycotting Dolce without a declared goal isn’t pressure; it’s self-expression. As a result, they last only as long as it takes for people to get the anger out of their systems: the noble Russian campaign was a Methuselah compared to most of them. This erodes the patience real change requires. Our political attention span is barely longer than the mayfly’s lifecourse. Look up the mayfly, people. Do some research.

Meanwhile, some corporations do terrible, material harm to LGBT people, not just dissing their relationships but colluding with their torture. They go unboycotted. What about GE and BP, which recruited for the investment summit of Egypt’s head persecutor General Sisi, and are sinking millions into a dictator’s private economy? What about the Silicon Valley-based Blue Coat Systems, which sells Sisi surveillance equipment that can record every keystroke Egyptian queers type? Where are the hashtags? Where’s the outrage?

Surveillance hurts: Dolce & Gabbana ad, 2012

Surveillance hurts: Dolce & Gabbana ad, 2012

Through these priorities peer some of the disorders that afflict Western LGBT experience. A fascination with celebrity runs deep in gay men’s cultures. It’s partly founded in the persistence of the closet, the years of our lives that withered in concealment; the memory breeds envy of lives led in utter exposure, the unreserved nudity of fame, stars with skin and secrets open to the world like French doors. As a result, the purely verbal sins of celebrity designers matter more than the depredation wreaked by a little-known, torture-enabling CEO. And a British comedian’s directives outweigh anything a mere activist in Russia or Italy can say.

The gay consumer: Dolce & Gabbana ad, 2014

The gay consumer: Dolce & Gabbana ad, 2014

But there’s also the way that gays, with identities demarcated by desire, define themselves less and less as political participants, more and more as consumers. Boycotts can be useful tools to change things, but they can also feed this apathy. I wrote in 2013, and nothing’s changed: “If the gays stay apolitical, it’s because campaigns like this encourage them to think of their beliefs, values, and political actions as consumer choices.” Taking sides is picking “brands”:

Is [boycott politics] a boycott of politics, evading the responsibilities and demands that politics impose on us for an easy cyber-way out? Does our consumer power — that $800 billion gays spend annually at being gay — really make us stronger, more potent citizens? Or does it makes us less citizens, shut us into ghettos where we become what we do or do not purchase with our power? Does it foreclose more generous identities, more onerous but meaningful commitments, larger and more human solidarities?

One last fact: there’s almost no LGBT organization with any political power in North America that’s democratically run. They’re either behemoths governed by unelected boards, or the odd authoritarian one-man show. Other activists have few ways to participate except by giving money. This fosters more and more roving Lone Rangers, accountable to no one, locked outside.

You can argue the causes; but you can see the consequences. Things accelerate, and the focus goes. Human rights present themselves as immutable values, the preserve of universals in an incoherent time. Yet as abuses multiply, politics and principle — strategy and capability — play less part in deciding which rights to defend, where to concentrate concern; taste takes their place, capitulation or whim, mass gusts of emotion across computer screens like the wind bending tall grass. This month it’s Uganda; next month, Egypt. There’s no persistence; the future erodes. Conscience is the creature of fashion. You can protest Dolce and Gabbana if you like; they’ve won already. It’s their world we live in.

Get your rights abuses here: Dolce & Gabbana ad from 2007. The US National Organization for Women called it “beyond offensive, with a scene evoking a gang rape and reeking of violence against women.” But at least it's not synthetic.

Get your rights abuses here: Dolce & Gabbana ad from 2007. The US National Organization for Women called it “beyond offensive, with a scene evoking a gang rape and reeking of violence against women.” But at least it’s not synthetic.

Two trials, two travesties

Convicted men in the wedding video trial cover the faces as police lead them from the courtroom cage, Cairo, November 1, 2014: Photo © Independent (UK)

Convicted men in the wedding video trial cover their faces as police lead them from the courtroom cage, Cairo, November 1, 2014: Photo © Independent (UK)

Eight men were sent to prison today in Cairo, because their faces flickered through a video that prosecutors said showed a “gay wedding.” They got three years; after that, they’ll serve another three years’ “probation,” sleeping every night from dusk to dawn in a police station. Their lives are ruined.

It’s not even clear yet what charges they were convicted of. The heavy book thrown at them seems to have included “incitement to debauchery” (fujur, the term of art for male homosexual conduct in Egyptian law); that’s article 14 of Law 10/1961, in itself worth up to three years in prison. There were also articles 178 or 179 of the criminal code, anti-pornography provisions that punish “manufacturing or possessing materials that violate public morals,” or “inciting passersby to commit indecency on a public road.” The charges were ridiculous. The defendants didn’t spread the video or incite anyone to anything — when the film went viral on YouTube, those who were in it tried desperately to get it taken down. The film clip wasn’t remotely pornographic. YouTube is not a public road. There was no proof the men were gay. A representative of the country’s Forensic Medical Authority — who inflicted abusive and intrusive anal examinations on them all, and found even by those bogus standards they were “unused” — said, “The entire case is made up and lacks basis. The police did not arrest them red-handed and the video does not prove anything.” In Egypt, though, trials no longer proceed through proof, just prejudice and fear. Rampant political opportunism trampling the remains of rule of law: that’s General Sisi’s Egypt.

Full leather drag: Central Security (Amn El-Merkezi) forces on the march in Cairo

Full leather drag: Central Security (Amn El-Merkezi) forces on the march in Cairo

On October 26, in a court in a sun-baked Cairo military compound, 23 defendants also got three years in prison, and three years of further dusk-to-dawn confinement. They included my friend Yara Sallam, a feminist and human rights activist, and six other women, and sixteen men. Among them also were Sanaa Seif, a young democracy activist, the daughter of the late, heroic human rights lawyer Ahmed Seif el-Islam, who died in August while working on her defense; a well-known photographer, Rania El-Sheikh; Mohammed Anwar or “Anno,” a revolutionary veteran who was a gifted member of a modern dance company as well; and more. Their crime was being on the scene of a peaceful June 21 demonstration near the Presidential Palace. The protest was against Egypt’s new, repressive protest law, which the military government imposed by decree last year. The law lets the state imprison anyone who voices opposition in the streets without permission. It’s meant to put any and all dissent in its proper place: a penitentiary.

If I can't dance, I don't want your revolution: Mohammed Anwar

If I can’t dance, I don’t want your revolution: Mohammed Anwar

“This is a politicized sentence. There isn’t any evidence against the defendants,” one of the defense attorneys told the media after the verdict came down. Who the hell cares? The day after the verdict Sisi excreted a new decree. It gives military courts jurisdiction over crimes committed in almost any public spaces. The security establishment saw its powers expand exponentially at a penstroke, like a black mushroom cloud ballooning out to darken the country. More and more civilians will appear before military prosecutors and military judges, to face military sentences, their civil rights shrunken to scraps and rags. Meanwhile, Sanaa Seif’s sister Mona Seif (who has campaigned for years against military trials for civilians) and her mother Laila Soueif are on a hunger strike to protest the increasingly total reach of state repression. Before last week, they refused food; since the verdict, they have refused liquids as well. No one doubts: the government would like to see them die.

Laila Soueif (L) and Mona Seif (R) on hunger strike earlier this month, in a corridor of the Supreme Court building in Cairo

Laila Soueif (L) and Mona Seif (R) on hunger strike earlier this month, in a corridor of the Supreme Court building in Cairo

Three years for peaceful protest; three years for exchanging rings. Every trial in Egypt these days is a travesty. “Travesty” has many meanings, among them a joyous play with gender; in Latin America, in Turkey, travesti refers to trans people, whose communities subvert some of the most rigid social norms. And trans people have been among the victims of Egypt’s regime, rounded up in bars and on streets and in private apartments for defying the military definition of conformist, nationalist, ideal manhood. Self-expression looks like dangerous deception to the Sisi state.

That’s the state’s inward irony, its private joke. By the draconian terms of Egyptian law these travesties of trials themselves should be jailed: for assuming false identities; for conspiring to deceive; for defrauding the public they claim to defend; for cross-dressing as justice.

Yara Sallam (top L), Sanaa Seif (bottom L), and three other defendants in prison garb at a September 13 hearing

Yara Sallam (top L), Sanaa Seif (bottom L), and three other defendants in prison garb at a September 13 hearing

Egypt: Tweet and blog against homophobic brutality, September 24 and 25

Prisoners in the courtroom cage during the Queen Boat trial wear masks to protect themselves from sensation-seeking photographers: Cairo, 2001

Prisoners in the courtroom cage during the Queen Boat trial wear masks to protect themselves from sensation-seeking photographers: Cairo, 2001

URGENT! This Wednesday and Thursday, September 24 and 25, Egyptian activists want a worldwide storm of tweeting and blogging to protest the recent, massive wave of brutal repression of LGBT people.

Here’s the call to action in English, followed by Arabic. (You can learn more and join the event on Facebook — and while you’re at it, check out the Solidarity with Egypt LGBT page as well.) The Arabic version below includes sample Arabic tweets (in red) but please write your own in English! Paste the hashtag
#ضد_حبس_المثليين
in Arabic, or use it in English —  #stopjailinggays. Please share widely and join in!

TWO DAYS OF TWEETING AND BLOGGING: #STOPJAILINGGAYS

Because the Egyptian government has recently focused its efforts on monitoring people’s private lives, whether in the bedroom or on their facebook accounts …
Because the police have paused in chasing “terrorists” and are going after people for their sexual orientation and gender identity …
Because since October 2013, police have arrested more than 80 people for the “crime” of being gay or transgender …
Because some of these people receive humiliating treatment including physical violence and rape threats in detention …
Because the Forensic Medical Authority conducts anal examinations on these people, considered sexual assault and a violation of human rights and medical ethics …
Because they are sentenced for up to 10 years on charges of debauchery — a vague word …
Because the media has been waging a sensational campaign against LGBT people in Egypt, violating people’s privacy by publishing names and photos …
Because of all of this, on September 24 and 25 we will be tweeting and blogging using the hashtag
#ضد_حبس_المثليين
which means “Against the Jailing of Gays.”
Join us. Invite your friends. Raise your voices.

يومين للزقزقة والتدوين #ضد_حبس_المثليين

بمناسبة إن الدولة متفرغة في الفترة الأخيرة لمراقبة الناس في أوض نومهم وعلى صفحاتهم الخاصة، وبدل ما الشرطة تقبض على الإرهابيين مخصصة وقتها كله لملاحقة المثليين من أول أكتوبر السنة اللي فاتت الدولة قبضت على أكتر من 80 واحد بتهمة المثلية، بعضهم بيتعرض لمعاملة مهينة جوة السجن من ضرب وذل وشتيمة، وتهديد بالاغتصاب، غير إن الطب الشرعي بيطبق عليهم كشوفات غير آدمية وبيكشف على فتحات الشرج بتاعتهم عشان يثبت هما مثليين ولا ﻷ، بعضهم أخد أحكام بالسجن بتهمة الفجور، اللي هي تهمة مطاطة ومش واضحة، ولإن الإعلام قاعد يخلق أساطير حوالين المثلية الجنسية زي إنها مرض نفسي والقنوات والجرايد بينتهكوا خصوصية الناس وينشروا أساميهم وتفاصيل حياتهم

فاحنا يوم 24 و25 سبتمبر هنزقزق وندون باستخدام هاشتاج #ضد_حبس_المثليين

المثلية الجنسية مش جريمة والدولة المفروض عندها حاجات أهم تعملها من مراقبة مين بينام مع مين،

شاركونا بالتدوين والكتابة خلال اليومين دول ودي نماذج من التويتات اللي ممكن تستخدموها:

المثلية هي ميول عاطفية أو جنسية ناحية انسان من نفس الجنس. #ضد_حبس_المثليين

المثلية مش جريمة. إزاي حبس المثليين في السجون هيحل المشكلة؟ #ضد_حبس_المثليين

المثلية مش اختيار. محدش بيختار يكون جزء من فئة مهمشة ومرفوضة من المجتمع. #ضد_حبس_المثليين

أكبر مؤسسات الطب النفسي بطلت تعتبر المثلية الجنسية مرض نفسي من السبعينات. مفيش علاج نفسي معترف بيه عالميا للمثلية الجنسية. #ضد_حبس_المثليين

المثليين جنسيا بيتعرضوا لعنف مستمر، سواء من الدولة اللي بتجرمهم، أو من الأهل أو في الشارع. المثلية مش مقبولة بس العنف مقبول؟ #ضد_حبس_المثليين

المثلية مش تقليعة ولا موضة ولا بدعة من الغرب. المثليين موجودين في كل العصور وكل الحضارات. #ضد_حبس_المثليين

جسمي أنا حر فيه. عاوز تتحكم في جسمي ليه؟ تقبل حد يقولك تعمل ايه وماتعملش ايه في جسمك؟ #ضد_حبس_المثليين

من حق كل شخص بالغ انه يختار يدخل في علاقة ولا لأ ويختار مين الشخص المناسب ليه من غير تدخل من أي جهة. #ضد_حبس_المثليين

المثلية مش مرض نفسي ولا بتسبب أمراض نفسية ولا جسدية. #ضد_حبس_المثليين

شهد العام الأخير تصاعد في عدد المثليين والمتحولين جنسيا الذي تم القبض عليهم فيما يزيد على 80 شخص. #ضد_حبس_المثليين

المثلية غير مجرمة بالنص في القانون المصري ولكن يستخدم مصطلحات فضفاضة مثل الفجور لملاحقة المثليين جنسيا #ضد_حبس_المثليين

عقوبة الفجور المستخدمة للقبض على المثليين تصل ل 3 سنوات ويضاف أحيانا اتهامات أخرى ليصل الحكم ل 10 سنوات #ضد_حبس_المثليين

الشرطة لم تستهدف فقط المثليين جنسيا ولكن استهدفت أيضا المتحولين والمتحولات جنسيا #ضد_حبس_المثليين

النيابة بتحول المتهمين للطب الشرعي والذي يقوم بعمل فحص شرجي ضد إرادتهم بمخالفة حقوق الإنسان ويعتبر انتهاك لكرامتهم وخصوصيتهم

التغطية الإعلامية لعبت دور كبير في التحريض على المثليين والمتحولين جنسيا واستخدمت ألفاظ سلبية مثل الجنس الثالث أو الشواذ #ضد_حبس_المثليين

الإعلام انتهك خصوصية وسرية المتهمين عن طريق ذكر أسماء المتهمين أو نشر صور وفيديوهات لهم مخالفة للمهنية ولأخلاقيات الإعلام #ضد_حبس_المثليين

Egypt’s “gay wedding” furor: A ship of fools

Hand in hand: Detail from the famous video

Hand in hand: Detail from the famous video

In Egypt any man can harass, brutalize, and rape a woman. It happens all the time. The State will ignore it for as long as possible; the media will say she asked for it. Just try a harmless expression of mutual, consensual desire, though. They’ll hound you to within an inch of your life.

Let’s start with the video. It came out of nowhere, but by Saturday morning it was everywhere. That day — it was August 30 — I spent with some young, impeccably liberal Egyptians. They kept staring with stunned fixation at their smartphones, repeatedly hitting “play,” watching it go viral, wondering what was going to happen to the men.  The YouTube comments could have told you what was coming: “They’re outside of prisons; they should worship God within them,” one outraged viewer wrote. That night I met with some of the men in the clip. One of them kept breaking uncontrollably into tears. They were trying to report the invasion of privacy, get YouTube to take it down. No use: By next day, it was on the website of Youm7 — the tabloid that’s been carrying on a homophobic campaign for months — and on TV. You think you are just a private person, contained in the fences of your skin; then suddenly you find you’ve escaped yourself, become a common spectacle and possession, a fetish cupped in the palms of everybody’s hands. No doubt this is why politicians and movie stars are so vacuous, stripped of self; but imagine sitting in ordinary obscurity and abruptly discovering you’re now an infinitely duplicable, circulating flash of light. “Mirrors and copulation are both abominable,” Borges wrote — it was one of the aphorisms of his invented world of Tlon — “because they multiply mankind.” But that was before the Internet.

Yesterday, some of those accused of being in the video went on trial. They face years in prison. The whole fiasco reminds many Egyptians of another moral panic that crushed innumerable lives: the Queen Boat show trial of 52 men, back in 2001.

I won’t link to the video here; the men have been exposed enough. It lasts little more than a minute; it shows some kind of party on one of the boats that cruise the Cairo Nile. (You can buy a ride individually or rent the felucca for a group.) The cameraphone tilts and pans past some celebrating people; there’s a cake, and two seem to exchange rings. When it went viral, it was instantly dubbed “Egypt’s First Gay Wedding.”

4549887301409591956-الفنان محمد صبحي

Mohamed Sobhi attempts to keep gay marriage from spreading to him

Some of the men I talked to asserted the whole thing was a joke. One of the alleged grooms called the popular talk-show of Tamer Amin to say as much — that he had a girlfriend and was just “playing around with rings.” If it was a marriage between men, then in a sense it was intrinsically unserious, since the law doesn’t recognize that. Nor does the law punish playing at marriage. The furor kept mounting though. Amin, on his show, called for retribution. (Tamer Amin is eager to anathematize people he thinks are gay, but equally happy to excuse rape. When a Cairo University student was sexually assaulted earlier this year, Amin told viewers that “She was dressed like a prostitute … The sexually repressed boys couldn’t control themselves … I blame her for dressing like this, and her parents for letting her leave the house in that dress.”)  Mohamed Sobhi, an actor notorious for his paranoid rants against Jews, demanded the State “respond’ to the “the spread of the phenomenon of gay marriage.”

And the banned Muslim Brotherhood, the dictator’s most feared opposition, berated the regime that overthrew it, for going soft on perversion. A former MP for the Brotherhood’s own Freedom and Justice Party warned that “For the first time in Egypt, we hear of gay marriage. The coup leaders embrace the Western agenda of demolition and decay of religion, and Egypt is converted into a brothel.” She added that the “authority of the coup” lay behind the wedding.

We will find you: Major General Magdy Moussa (from Vetogate.com)

We will find you: Major General Magdy Moussa (from Vetogate.com)

The supposed ceremony thus became a political crime. The State took up the challenge: it started arresting people. Last Wednesday, September 3, police picked up at least 13 people in the streets around Ramsis Station, and interrogated them about the video. The next night, they seized an unknown number as they were leaving a club downtown — I’ve heard figures as high as 26. Most were released, but somebody pointed an incriminating finger. On Saturday, the media announced that men from the film had been arrested, by police directed by Major General Magdy Moussa. (The exact number is still not clear. Most news reports say seven people were arrested; Al-Mogaz says two more are being sought; Youm7 claims ten are involved, and even after a confused hearing Tuesday, where the lawyers were denied access to court papers, it’s impossible to verify a figure.) [NOTE: The Egyptian Initiative for Personal Rights has now confirmed eight defendants have been arrested.] Youm7 showed grainy video of people being hauled to jail. The full names of nine victims, some presumably still at large, appeared in the press.

Prosecutor General Hisham Barakat

We will hurt you when we find you: Prosecutor General Hisham Barakat

The charges against the men aren’t clear, but they reportedly included incitement to “debuachery” (fugur, the legal term in Egyptian law for homosexual acts), and “publication of indecent photographs.” The images showed “the purpose was the celebration of attachment to one another, in scenes deemed shameful to the maximum degree.” Egypt’s Prosecutor General, Hisham Barakat, personally intervened in the case to show its seriousness, ordering quick action. Egypt’s Forensic Medical Authority conducted anal examinations on the arrested men — an intrusive, abusive, torturous and medically worthless procedure. They found no evidence of homosexual conduct. That didn’t stop a court, on September 9, from ordering the men jailed for another 15 days so the furor can continue.

Dr Hisham Abdel-Hamid of the Forensic Medica Authority, who said the "bride" had turned out "normal"

Dr Hisham Abdel-Hamid of the Forensic Medical Authority, who said the “bride” had turned out “normal”

I spoke to one of the men trawled up in the police nets last Wednesday night: picked up at 3:30 AM on a street near Ramsis Station. This is his story:

I was standing with a friend — he had tight jeans, that was probably why they thought we were gay. Suddenly a policeman came out of nowhere and grabbed us. We were thrown into a microbus nearby. I tried to scream and the policemen told us to shut up. There were about 13 of us crammed in there, all picked up in various places.

In the past, Cairo police often looked for gays by riding in a microbus with an informer, who pointed out victims passing in the street. Almost a third of the Queen Boat defendants were arrested that way (not on the boat!) This time, the microbus took them to the Mugamma, the huge Stalinist building in Tahrir Square, a symbol of State bureaucracy. There police broke the men into groups for interrogation. One man “scampered off by a different door” — possibly he was the informer.

Soldiers in front of the Mugamma in Midan Tahrir, January 2011, by Joseph Hill

The Mugamma looms above Tahrir Square, guarded by soldiers, during the Egyptian revolution, January 2011: by Joseph Hill

My group was me, my friend, and another man I didn’t know. We were taken up to the 12th floor, the “Adab” [morals] division.
At first the police were very aggressive with us. They beat us with sticks, and called us many names. Then the boss came in to question us.

The boss was very civil. He said for months they had been arresting gays as a way of stopping the spread of AIDS, because these men were having sex without condoms.

This is false. So far as we know, no evidence that anyone transmitted HIV through barebacking has been presented in any cases so far. The manipulation of public-health rhetoric is a bit strange coming from a government that claims it can cure AIDS by turning it into sausages.

But now, he said, there is this video. He said we have a new president, and Sisi is determined not to let this kind of thing happen, and will not let the Muslim Brotherhood get any benefit from it. I told him I didn’t know anything about the people in the video. All the same, they took our phones and made backups of all the information on them.

We were kept there for six hours, till after 10 AM. After the boss left the other policemen came back and made fun of us, calling us female names and asking if we were carrying condoms. My friend and I were set free; they held on to the third guy who was with us, because they said there was a theft charge against him. I don’t know what happened to the others.

The information on the phones — particularly if passwords were stored on them — could help the police open the victims’ Facebook and other social-media accounts. Plenty more could be rounded up that way.

Don't blame Sisi: Cairenes light candles during a blackout. Photo by Islam Farouk for Al-Masry al-Youm.

Don’t blame Sisi: Cairenes light candles during a blackout. Photo by Islam Farouk for Al-Masry al-Youm.

This whole uproar raises several issues. First: why now? The men I spoke to told me the video was made last October. One theory, seized on by the press, is that someone released it now to get revenge on a participant. It’s not implausible, though, that the authorities somehow obtained it earlier, and have been waiting for the moment when it might prove useful. There is plenty to distract people from in Egypt these days. Rolling power outages afflict the country; September 4 was promptly dubbed “Black Thursday” because the blackouts were so severe. Meanwhile, no sooner did Sisi win his rigged Presidential election than he announced massive cuts to fuel subsidies, pushing up prices for many basic goods. In such straitened circumstances, the spectre of “gay marriage” has long-proven value as a distraction. In Morocco in 2007, a YouTube video allegedly showing such a ceremony provoked riots — and jail terms for participants — in the town of Ksar el Kbir. In Kenya in 2010, similar stories stirred up vigilante violence in Mombasa. In Egypt itself, the first, sensational press reports in the famous Queen Boat case said a same-sex wedding was taking place on the raided vessel; some months before that, the press had pounced on unproven rumors of a marriage in the Delta town of Zagazig. “Gay marriage” has become a perfect encapsulation of cultural powerlessness before the imperial West.

Second, of course, the video leaked amid a months-long campaign of arrests and vilification of people accused of homosexual conduct or of dissident gender expression. Transgender people in particular have been rounded up in clubs and on the streets, and seized in private homes. These arrests continue. In early August, police arrested a woman and two men in Rehab City, a gated community on Cairo’s outskirts, and charged the latter with homosexual conduct. I’m reliably told the cops stopped one of the men at a checkpoint, on his motorcycle; finding him suspicious, they went to his home, and found the conclusive evidence — condoms. (So much for the officers’ concern for public health.) Later that month, “security forces” arrested ten people in what they called a “prostitution ring” in Giza, in western Cairo. They included, it seems, a trans woman, whose photo was singled out to appear in El-Watan. (Only the eyes were imperfectly blacked out; obscuring the face was done by me.)

Arrested August 26 in Giza: Victim of moral panic

Arrested August 26 in Giza: Victim of moral panic

But it’s not just alleged gays and trans people who are victims of the atmosphere of repression. The police presence in downtown Cairo is formidable now. Just under three weeks ago ago, cops raided a host of sidewalk cafes, forcing them to shutter because they had tables on, well, the sidewalk. (I recall when Recep Tayyip Erdogan moved similarly against street life in Istanbul’s bustling Beyoglu district, Western conservatives condemned it as creeping Islamic totalitarianism. When Sisi does it, nobody bothers.) The next day, they cracked down on street vendors. Grim, barred trucks from Central Security palisaded the avenues, filling up with hapless men whose crime was hawking scarves and jeans in the passageways off Qasr el-Nil. There is a general campaign of social control going on, and a general rehabilitation of the reputation — and power — of the police. Homosexuality is simply another convenient bogeyman. Its particular convenience, though, is that it unites several things Sisi despises: “Western” influence (as in those marriages), abnormal gender roles, and the youth culture and revolutionary decadence symbolized by the downtown world. Attacking “debauchery” allows him to set the State firmly against all those debilitating forces.

Third: the fact that the latest arrests came after criticism by the Muslim Brotherhood shows where Sisi senses his greatest vulnerabilities. Having overthrown the conservatives, he needs to prove his moral credentials. It’s significant that no comparable wave of repression happened under the Brotherhood itself: they had no credentials to prove. (It’s also significant that this panic has burgeoned during the week the government sentenced several Brotherhood leaders to decades in prison.) Sisi’s Minister of Religious Endowments — who more or less controls all the country’s official mosques — explained the official line elegantly to the media last week. Every Egyptian should reject “all anomalies” such as homosexuality, “because in the end they only serve the forces of extremism and terrorism, which claim to be the protectors of religion and morality.”

Homosexuality causes Islamism: Mokhtar Gomaa, Minister of Religious Endowments

Homosexuality causes Islamism: Mokhtar Gumaa, Minister of Religious Endowments

Finally, what all this produces is fear, comprehensive and immobilizing. No one can guess what will come next, how far the crackdown will go. There are vague stories the State has planned a massive trial of alleged homosexuals for later this month, or next month; no one knows whether this mini-Queen-Boat is enough for them. Cairo Scene, a English webzine for the privileged party set, has claimed the police are already arresting gay men over Grindr; no one has been able to confirm a single case, but the rumor only adds to the terror. My sensible colleagues are pruning their phone lists, taking down photos from Facebook, and waiting — waiting for what, nobody can tell. Even I have drawn up a list, for friends, of things to do if I’m arrested; when insouciant I behave that way, you know something is wrong. A full-fledged moral panic is spreading in Egypt. It even has a song — by an Egyptian band, proclaiming that something must be done to stop the she-men with skinny jeans:

The panic infects political discourse, turning everything to triviality. The contrast between the indifference accorded real and terrible stories of violence against women, and the seriousness with which a mock wedding is reviled, remains ominous. The men on the boat may have been careless or presumptuous, but the whole country increasingly resembles a ship of fools. The absurdity isn’t innocuous, though. The point of moral panics is that they can always find new victims.

 

Vietnam: Marriage, authoritarianism, and social control

Dykes on bikes, Hanoi style: © AFP

Hanoi held its first LGBT Pride on August 5, a march-cum-ride that went from the National Stadium to a downtown park.

Dozens of cyclists decorated with balloons and rainbow flags streamed through the Vietnamese capital of Hanoi on Sunday for the first gay pride parade in the nation’s history.

Organised by the city’s small but growing Lesbian, Gay, Bisexual and Transgender (LGBT) community, the event went ahead peacefully with no attempt by police to stop the colourful convoy of about 100 activists, despite their lack of official permits. …

“We don’t have permission for this and even if we had asked for official permission it would not have been possible,” said Van Anh, to the AFP news agency. “But we have a lot of support from Vietnamese society. Many people told me they want to attend the parade,” she added.

That’s from an AlJazeera English report (it’s almost as fascinating to have a Qatar-based news outlet devoting extensive coverage to sexuality these days). AP adds:

Demonstrators trailed rainbow-colored streamers and shouted “Equal rights for gays and lesbians!” and “We support same-sex marriage!”

It was a scene that was unimaginable a few years ago, when Vietnam still labeled homosexuality a “social evil” alongside drug addiction and prostitution. The country’s gay community was once so underground that few groups or meeting places existed, and it was taboo to even talk about the issue.

There are many more pictures here. 

Breaking away: © Reuters

This comes after Vietnam’s government announced in late July that it would address the status of same-sex couples, possibly with provisions for same-sex marriage, in a coming overhaul of marriage laws:

Video of Vietnam’s first publicized gay wedding went viral online in 2010, and a few other ceremonies followed, capturing widespread public attention. The Justice Ministry now says a legal framework is necessary because the courts do not know how to handle disputes between same-sex couples living together. The new law could provide rights such as owning property, inheriting and adopting children.

“I think, as far as human rights are concerned, it’s time for us to look at the reality,” Justice MinisteHà Hùng Cường said Tuesday in an online chat broadcast on national TV and radio. “The number of homosexuals has mounted to hundreds of thousands. It’s not a small figure. They live together without registering marriage. They may own property. We, of course, have to handle these issues legally.”

As I grow older I find I am becoming Eeyore, always determined to look at the unbright side of life. God forbid I should rain on this parade of cyclists, or their courage (AFP notes that the parade website warned each marcher to “consider his/her personal circumstances and the risks possibly involved before participation”).

Yet this march is no sign of widespread social liberalization. Vietnam remains an extremely repressive polity, and other politically as well as socially marginally groups still bear the brunt. Here’s more news from yesterday:

Vietnamese police detained at least 20 people on Sunday as they broke up a protest in Hanoi against Beijing’s territorial claims in the disputed South China Sea, witnesses said.

Demonstrators were forced into waiting buses and taken to a rehabilitation centre usually used to detain sex workers and drug users, after attempting to gather in defiance of a heavy police presence, one detainee told AFP.

“There are at least 25 people here and there are arrestees elsewhere,” the person — who requested anonymity for security reasons — said by telephone from the Loc Ha detention centre. [emphasis added]

Or this, from last week — one reflection of a growing government campaign to imprison dissident bloggers:

The mother of a prominent Vietnamese blogger has died from her injuries after setting herself on fire in front of government offices, her family says.

She was protesting against the detention of her daughter, Ta Phong Tan, who is facing charges of anti-state propaganda, another daughter told the BBC’s Vietnamese service.

Dang Thi Kim Lieng set herself alight in southern Bac Lieu province. Her daughter faces trial in August and could be jailed for 20 years.

Ta Phong Tan

Ta Phong Tan, a former police officer, wrote a blog called Cong ly va su (Justice and Truth), drawing attention to state abuses and demanding social justice. Arrested last September, she faces trial this month and could be sentenced to 20 years in prison.

Cuba, of course, also indicated recently that it may move toward same-sex marriage, under the stewardship of Mariela Castro, President Raul’s daughter. The cases seem to me remarkably similar. Both are authoritarian governments, with Communist parties still steeped in the repression of dissent, and powerful histories of social control. Both seem to have decided that the best way to deal with a new, increasingly visible and vocal minority without a clear or oppositional political agenda is to integrate it into the existing structures of society and subordination. They rely on recognition to contain it, and marriage is one of the most trustworthy containers around.

Nikolai Krylenko, b. 1885, shot 1938: I know a stinky secretive bordello when I see one

Authoritarian governments do not like invisible groups, sneaking around in the subterranean structures of society. They want a transparent life-world, with everybody’s activities fully exposed like ants in an ant farm, or happy hamsters. The instinctive response to identities that prefer the safety of occlusion is to drag them kicking and screaming into the light– the switchless light of prison, under the perpetually buzzing electric bulbs of the Lubyanka.  Stalin’s prosecutor Nikolai Krylenko famously expressed these fears, and this solution, in clarifying why the dictator recriminalized homosexual conduct in the 1930s. Homosexuals were subversives, he shouted:

Classless hoodlums, either from the dregs of the society, or from the remains of the exploiters’ class. They have no place to go. So they take to — pederasty. Together with them, next to them, under this excuse, in stinky secretive bordellos another kind of activity takes place as well — counter-revolutionary work.

The traditional response of repression is not always the best-working one, however. Sometimes, if you can’t beat them to a pulp, it’s better to join them. Or, more properly, to make them join you.  Recognition is a comparatively painless way of easing the invisible into the light. Recognition in marriage is potentially a splendid means of identifying, registering, and integrating dissident sexualities, subjecting them to a state-defined structure that normalizes and depoliticizes them, nullifying and Novocaining any residual anti-social impulse.

There’s a pretty extensive literature on how marriage serves this function, even (or especially) in ostensibly democratic societies. After the Civil War and emancipation, for instance white American leaders hoped to shove or shovel former slaves into marriages, expecting that legal recognition of their relationships would impose on them a new form of institutional regulation — and would tame them for membership in a contract-dominated society. Tamara Nopper describes some of the motives as well as consequences:

African Americans were aggressively pushed to marry and register their marriages with the state.  Registration policies (and the granting of certain rights to Blacks in general) also became a means to police and criminalize African Americans.  For example, Blacks who married and failed to register with the state were prosecuted.  Demonstrating the afterlife of slavery, the attempts of slaves to express some emotional autonomy and forge their own marriages (without the legal ability to contract) on plantations became the basis of social control in the post-Emancipation period.  Black codes in different states declared slave couples who lived together during slavery as legally married.  … In cases where a Black man might have multiple spouses, Freedmen’s Bureau agents would designate the Black woman with the most children to be his wife. Additionally, these policies and practices served as forms of privatization and anti-Black austerity as “the government used marriage to financially and socially domesticate newly freed Blacks to ensure that the white public faced minimal responsibility for former slaves’ economic security.”  Put simply, instead of reparations, African Americans got marriage.

And Nopper detects in so-called “welfare reform” a contemporary, neoliberal revival of this push:

the message is very simple

While some have described how Americanization campaigns encouraged marriage among immigrants during the Progressive Era or how gay marriage was facilitated by some city and local governments in the early 2000s, the most striking example of governments promoting marriage among U.S. minorities is the targeting of African Americans.  ….

As several scholars and analysts emphasize, contemporary welfare reform, primarily targeted at the mythical “Black welfare queen” (despite the diversity of welfare recipients), pushed marriage among poor women as a solvent for poverty and female-headed households.  Indeed, as Priya Kandaswamy points out, the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) begins with the following “finding” from Congress: “(1) Marriage is the foundation of a successful society.”  … PRWORA enacted, among other draconian measures, “stricter paternity identification practices” designed to force poor women to become more dependent on men with whom they had children (men who were most likely also poor).  With little consideration for the dynamics of the relationship (be it violent or collegial), poor women were expected to maintain a particular type of relationship with men than to continuously access state support for taking care of themselves and their children.

Cuba and Vietnam are authoritarian in a different way from the United States, and they lack the full flowering of the US’s racial paranoia about a segregated underclass. But in confronting the sudden emergence of uncontrolled and unregulated forms of sexuality, their inchoate responses so far have a certain similarity to post-slave society, post-Great Society America.

A few examples do not a tendency make, but I wonder to what degree societies in the grip of authoritarianism (either in its neoCommunist or neoliberal versions, which in any case clearly are on the merge) will find same-sex marriage a useful tool for co-opting and controlling a novel social group.

China will perhaps be the test case. Right now, China is having enough problems with heterosexual marriages to keep it busy. If the People’s Republic starts moving toward recognizing same-sex unions, though, the rhetoric about marriage equality as a new step toward freedom will deserve a bit of re-examination.

But then, who am I to say? I’m Eeyore. Don’t pay any attention to me.

 

Obama, marriage, race, rights

I had brunch today with the kids who changed the President’s mind. If you’ll remember, when Barack Obama ten days ago declared his support for same-sex marriage, he cited “members of my own staff who are incredibly committed, in monogamous relationships, same-sex relationships, who are raising kids together.” There was one member of the White House staff during the presidential term who was both queer and a parent — she even took the bairns to meet the Leader of the Free World and get their pictures snapped — and this shining Sunday, she and her partner entertained. The twins in question are extremely self-possessed toddlers, who could probably persuade me of anything given the chance. I hope no one informs them of their role in history for some time yet. To have succeeded at so much at so young an age could drain them of the ambition to get through kindergarten.

Everything has already been said about what Obama said. Consider this:

President Barack Obama’s May 9 announcement that he favors same sex marriage led to a huge spike on YouTube … YouTube is owned by the online search giant Google, which [also] saw a 458 percent increase in national searches for “Obama” and “gay marriage” between 10 am and 6pm the day Obama disclosed his views …

Matthew Nisbit, a professor of communications at American University who studies the intersection of politics and social media, said online videos and an interest in gay rights were a natural pairing. “The heaviest users of video are people under the age of 25, and gay rights is one of the few political issues young people feel passionate about,” Nisbit said. “And the gay community was an early adopter of social networking—the technology was a good fit for people of minority status looking for like-minded others.”

Following Obama’s announcement, more videos with the key words “gay marriage” were uploaded on YouTube than ever before, drawing more than 3 million views and 100,000 comments.

Am I the only person who finds that terrifying?

Anyway, I can add nothing but point to a couple of interesting consistencies in all those images and words.

What am I pointing at? Huck and Jim on the raft, by Thomas Hart Benton

You might call one of them the Persistent Sexiness of Race, or Raciness of Sex. Put simply: sex and race are the two authentic American obsessions. But so close are they to every American’s pulsing heart that proximity induces blindness, and natives of these territories have considerable difficulty telling them apart, or deciphering where, when, or how they interrelate or -twine. On one day, your average white American will go from believing that sex was invented by non-white people — carried to this shore to sap the moral rigor of austere Puritans who reproduced by spores — to supposing that non-white people are fierce enemies of sex in general, paralyzed by their primitive inability to appreciate orgasms, orifices, or online porn. When it comes to homosexuality, there are thus two versions. Either black people are responsible for it, because they got the gender roles all wrong (“Come back to the raft ag’in, Huck honey!” cries Jim in the one true, classic narrative of the American Dream, and surely the white boy’s comparative health is figured in the fact that his name rhymes with “Fuck” as any proper man’s should); or black people are going, by their weird and regressive goetic magic at the ballot box, to forbid loving white people from enjoying the rightful dignity of gay marriages in jurisdictions from Palo Alto to High Point.

It’s inevitable, then, that the first African-American president’s support for LGBT people should be read through these antinomies. Even before Obama took the plunge, the Washington Post warned him:

African Americans, one of the main pillars of the President’s political coalition, remain decidedly skeptical about gay marriage. In the last year’s worth of Post-ABC [polling] data, just 42 percent said they support legalization while 55 percent oppose it. … Coming out in support of gay marriage … would clearly thrill a portion of his base (gays and lesbians) but it could alienate — at least in parts — another portion of his base (African Americans) that he desperately needs to win reelection this fall.

Now, there is plenty of counter-evidence of sympathy and support in black communities. Just yesterday the executive board of the N.A.A.C.P. — the country’s “most prominent civil rights group,” as the New York Times notes — overwhelmingly passed a resolution declaring that “We support marriage equality consistent with equal protection under the law provided under the Fourteenth Amendment of the United States Constitution.” The legendary African-American activist Julian Bond told the Times that the vote “proves that conventional wisdom” about black opposition to marriage equality “is not true.”

Still, where there are divisions, as many people have pointed out, the tenor of white LGBT activists’ advocacy bears a substantial share of the blame. Last week Andrew Sullivan (who wept when his “father figure” affirmed his marital authenticity) wrote a piece for Newsweek, speculatively borrowing Obama’s racial identity in service to Sullivan’s own gay one:

Barack Obama had to come out of a different closet. He had to discover his black identity and then reconcile it with his white family, just as gays discover their homosexual identity and then have to reconcile it with their heterosexual family.

It’s not the same, you want to scream. Experience is not to be expropriated like that. Assimilating race to sexuality, as though both were purely defined by internal awareness and “discovered” the same way, is likely to put off plenty of non-gay African-Americans, and possibly some gay ones. Moreover, Sullivan has an unerring instinct for finding ways to be more alienating.  It’s an article of his faith that he invented the campaign for gay marriage, and that it’s a right-wing idea. (How Sullivan continues to call himself conservative, when he dissents from the right on every issue from Obamacare to Israel, is one of the present era’s greater mysteries. The only leftists he appears to dislike are the gay ones, perhaps more from sour memories than ideology.) “Marriage equality started out as a conservative revolt within the gay community,” he wrote: “Gay conservatives and Republicans helped pioneer gay marriage as an issue.” And in a rather pissy-sounding email to Gay City News (capable of making anyone pissy, to be sure), he added:

[I]t was a struggle to be heard above those on the left arguing for employment protection, hate crimes, and economic ‘justice’ as core priorities… Without the emergence of the gay right, I don’t think we would have come as far as we have.

Those quotes taloning “justice” are the giveaway. They show how little a perspective informed by Sullivan would make sense to many African-Americans, for whom material inequality and economic reality are the urgent facts of politics.

It’s true that “civil marriage is a civil right and a matter of civil law,” as the N.A.A.C.P’s president said; and as one former N.A.A.C.P. official informed the TImes, the resolution entailed “coming to a very civil rights understanding of marriage equality versus a theological understanding of marriage.” Does that make marriage “the new civil rights movement,” though? Does that make Obama’s embrace the equivalent (as Jonathan Rauch suggests) of LBJ adopting MLK’s language and intoning, “We shall overcome”? Uh, no. Marriage is a civil right, but not a political right. Being deprived of it marks out “impaired citizenship,” in Gayle Rubin’s phrase; but it doesn’t mark you as deprived of entry, respect, resources, or decision-making throughout the entire public realm.  The laws and prejudices that did isolate LGBT people in that way have, in the US, largely receded over forty or fifty years, thanks to the long labors of people living and dead; it’s only possible to talk about marriage because those more terrible impediments have eased.  Imagine living your lifetime without the right to marry, and then imagine living it without the right to vote. You’ll understand what I mean, and maybe see why the uncritical comparison to the civil rights movement is, for some African-Americans, annoying.

Huey P. Newton, 1942-1989

That said, African-American history has confronted the denial of both rights — slave marriages, of course, had no status in law, and African slaves were unable to make a legal contract. There are several things to draw from this, but one is that the “outreach” model — where white gay activists troop out to teach African-American communities why the marriage battle is important — is crazy. Too much experience and wisdom about having your rights curtailed lie on the other side. Listening and learning are a better stance for marriage activists than presumptuously leaping to the parallels. And a deep African-American engagement with the issues we would now call “sexual rights” goes back centuries –certainly way farther back than the movement activist Bayard Rustin, a true civil rights hero who seems, all the same, to be the only black gay man some people can name these days. (Obama has now put a tribute to him on his campaign website.) In my perverse way, I prefer to cite  Huey Newton, co-founder of the Black Panther Party for Self-Defense, who on August 15, 1970 gave a speech on “The Women’s Liberation and Gay Liberation Movements”:

Whatever your personal opinions and your insecurities about homosexuality and the various liberation movements among homosexuals and women (and I speak of the homosexuals and women as oppressed groups), we should try to unite with them in a revolutionary fashion. I say “whatever your insecurities are” because as we very well know, sometimes our first instinct is to want to hit a homosexual in the mouth, and want a woman to be quiet. We want to hit a homosexual in the mouth because we are afraid that we might be homosexual; and we want to hit the women or shut her up because we are afraid that she might castrate us, or take the nuts that we might not have to start with.

We must gain security in ourselves and therefore have respect and feelings for all oppressed people. … Remember, we have not established a revolutionary value system; we are only in the process of establishing it.

Now, that’s honest.

The second consistent note of the Obama commentaries is what I would call the Politics of Premature Ejaculation. It consists of announcing, midway through any controversy,  that it’s over, all over — even though the fat lady has neither sung, nor shivered, nor even opened her mouth. Liberals, acolytes of Enlightenment and its pre-ordained triumphs, are particularly prone to this. Thus the American Prospect proclaimed the war over marriage equality “is over,” the opposition a “lost cause.” “Support for marriage equality has crossed the halfway point, and no one in their right mind could think there will be some reversal in that trend.” Yet conservative David Link also contended, “As a national matter, today we can envision as a reality the last days of government discrimination.”

This contention is a bit weird, since national polls don’t decide the issue. In 31 states, it’s already decided. That’s the number that have added amendments to their constitutions banning recognition of same-sex marriages, all since the marriage wars began.  North Carolina passed the latest, the day before the President’s announcement. Unless a certain four justices of the US Supreme Court all perish of salmonella from eating Nino Scalia’s calamari, and Obama gets to replace them, most of these bans will take decades to reverse, either by votes or courts.

everything that rises must converge

Nonetheless, two successive Gallup soundings have now shown a thin majority in favor of legalizing same-sex marriage, a far cry from the nearly two-thirds opposed a decade and a half ago. This is neither final victory nor the tidal inevitability of Progress, but it is no negligible fact, either. The commentariat is busy trying to explain the sea-change: is is the neighbors? is it the TV?

Did popular culture bring us here –  … Ellen Degeneres and popular sitcoms like ABC’s “Modern Family”? Or is our liberalized attitude just a cumulative effect of the straight community having more contact with “out” gay couples who, like them, just strive to form loving families and raise well-adjusted kids?

I have a different take. Opinions changed on marriage because marriage didn’t change anything.

the weather in Sodom: maybe we should move the wedding inside

For all the apocalypse predicted when Massachusetts went off the deep end into Gomorrah in 2004, the impact of eight states opening civil marriage to same-sex couples has been pretty much nonexistent. For the couples themselves — those who availed themselves of the opportunity — it’s been nice enough, primarily in terms of symbolic recognition (all at the local level; federal rights, which include immigration and income-tax benefits, of course are still debarred.) But nobody else has been inconvenienced in the slightest. Nobody else’s marriage was devalued or changed in any way. Most people didn’t even notice. Of course, Pat Robertson and preacherdom can fulminate that brimstone impends: “In history there’s never been a civilization ever in history [sic] that has embraced homosexuality and turned away from traditional fidelity, traditional marriage, traditional child-rearing, and has survived.”  But eight years after avenging fires should have crisped us, the polity continues as if nothing had happened at all.

If you believe, as many people now do, that marriage is the end point and goal of LGBT people’s liberation struggles, this is all remarkable. How many revolutions have succeeded by changing nothing? When in history has a people been granted rights long denied them, and left everybody else completely undisturbed? America is still grappling with the massive consequences and implications of African-Americans’ sixty year-old civil rights movement, even if it remained unfinished. Europe’s emancipation of the Jews in the nineteenth century still has echoes, heard alike in debates about the conduct of Israel and the identity of France. Most contemporary social movements — the ones the French call the révolution des sans — are defined by people wanting something others have. The sans papiers, the immigrants, want to break the borders; the sans emploi want jobs and benefits; the sans abri, housing. The enthusiasm and the resistance they rouse both reside in the struggle to wrest those things away from their accumulators, to redistribute possessions and prepositions, to turn “without” into a “with.” Is the movement of the sans épouses distinctive in that it doesn’t ask anybody to bother?

really a very simple request

You could argue that this means the gay movement’s inner meaning really is conservative, as Sullivan argues. If marriage is its core issue, then the movement has no positive demands to make on government, for benefits or protections. It just wants a little recognition; then leave it alone. It’s a very good movement, modest in its aspirations and quiet in its manner, leaving the peace unbreached and the indifferent untroubled. David Link writes, “However we get to marriage equality, I’m going to view that as the end of the line.  I don’t want the government discriminating against me, and once it doesn’t, my activist days will be over.” But he adds:

The left expects more of government.  In addition to not discriminating itself, the left believes government should also act to prohibit others from discriminating, and should do a lot more as well.

And beyond that, there was an old left dream of social transformation as well: an idea, often slipping toward the Utopian, that individual lives and their interconnections could be radically renewed. And should be. Changez la vie! Sous les pavés, la plage. And more.

I don’t think Link quite gets what the movement has really done.

My belief is: the sheer innocuousness of the success of marriage doesn’t mean the LGBT movement itself is innocuous. It means that the historic meaning, the larger impact, of the LGBT movement lies quite elsewhere. There is a radical change, partly accomplished and partly still to be fulfilled, that marriage misses. It’s not that marriage is an unimportant goal; but it is only achievable when the deeper, the more lasting and far-reaching challenges to reality as it was given us have been launched and felt. Some historian a century from now, I’d guess, would see the real effects of the movement not in wedding vows but in the widespread acceptance of a radical claim to everybody’s sexual freedom and bodily autonomy; the insistent assertion that customarily “private” acts have public and political relevance; the tectonic shifts in gender roles and the way they’re understood. When we — by we I meant the movement, or the movements — talk about marriage as our political terminus ad quem, we are a bit like Ulrich in The Man Without Qualities, contemplating courses that are perfectly plausible but somehow not quite authentic, not his life’s meaning, not himself. “But whatever destiny awaited him, he knew it must be something entirely different.”

N.B. For a collection of skeptical writings about same-sex marriage and US politics, see the resources here. 

Nigeria: Screwing the nation

Nigeria has seen the first successful blow struck against neoliberalism in the New Year. After a week of massive nationwide protests met the removal of a key fuel subsidy for consumers, President Goodluck Jonathan backed down — a bit.  He reinstated the subsidy partially. That, together with reportedly massive payoffs to union leaders, persuaded labor to cancel the strike.

Lagarde in Abuja, with President Jonathan (L) and Finance Minister Ngozi Okonjo-Iweala (R)

The compromise was far from perfect. Dropping the subsidy initially more than doubled the price of gasoline, from (US) $0.40 to 0.88 per liter; now the price is teetering at around $0.66. The settlement outraged considerable parts of the protest coalition, including students, who remain committed to opposing neoliberal policies.  There’s considerable suspicion in Nigeria that the IMF and World Bank were behind the attempt to scrap the subsidy; IMF head Christine Lagarde visited Abuja in December, allegedly to congratulate Jonathan on his “reform” and anti-corruption initiatives, but more likely to set the terms for allegedly-indigenous structural adjustment efforts. Few believe the government’s retreat means the proposal is in permanent abeyance. Still, a half-victory is a victory. Jonathan, who announced the subsidy removal in a speech declaring, “Let me seize this opportunity to assure all Nigerians that I feel the pains that you all feel,” was made to feel rather more pain than he had banked on.  And even the Financial Times acknowledged that for the subsidy’s “removal to be tolerated” in future, “poverty must be alleviated in other ways.”

Attention immediately shifted to the horrific violence inflicted by the Islamist group Boko Haram on northern Nigeria, including coordinated bombings and shootings in Kano on January 20 that killed almost 200 people in one day. Zach Warner, in ThinkAfrica Press, has a fascinating analysis of the group’s rise. He admits that “Communal violence has been a constant for the last three decades, while the mobilisation of faith-based political identities has been a defining feature of Northern Nigeria for centuries.”  But in recent decades, Nigeria’s central government has eviscerated traditional Islamic hierarchies and power structures in the North, thinking it was eliminating a base for separatism. At the same time, a shift from Northern-based military leadership to democratically elected governments with their roots in the South has starved the region of resource allocation. The result has been spreading poverty, particularly among the young:

Thus, by the time of … the restoration of civilian rule, centuries-old social and political hierarchies of Islamic power had been completely smashed. Olusegun Obasanjo emerged as the only viable leader of the Fourth Republic, engendering a massive power shift to the south after decades of predominantly northern military rule. Elite Muslims were sent reeling; the Sultan [of Sokoto, still the ostensible religious leader of Nigeria’s Muslims] could hardly show his face throughout the region.

Amid such social confusion, young Muslim men again tried to assume their place at the helm of the north. From late 1999 to 2002, twelve states expanded Sharia (Islamic law). Reacting to what they perceived as endemic corruption and moral decay, this crop of younger politicians enunciated a wish to return to Islamic governance outside the strict confines of the emirate structures which they felt were complicit in failed governments and national decline. As John Paden wrote in 2002, the sum effect was a split in Islamic solidarity and “significant confrontations between anti-establishment groups and northern Muslim elites, which in turn, [sic] are causing these elites to reconsider how to strengthen their own politico-religious credentials”.

The resulting alienation is fertile ground for insurgencies.

John Campbell (a former US ambassador) argues that, religion aside, Boko Haram bears conspicuous similarities to the Movement for the Emancipation of the Niger Delta, which sponsored campaigns of kidnapping and bombing that kept the country’s oil-producing areas on edge from 2006 to 2010.   Both are symptoms of a disintegrating rentier state, which lives off the oil revenues it appropriates from a single region of the country, but has never tried to redistribute them evenly or fairly—either among the country’s geographic divisions, or among its social classes.  The subsidy protests and the Kano bombings reveal the same rot.

The massive unrest has drawn the public’s eye away from the “Same Sex Marriage (Prohibition) Bill,” a sweeping proposal that would criminalize most aspects of lesbian and gay people’s lives.   At some point soon, though, Goodluck Jonathan will have to decide whether to sign it.  The recent tumult reveals the underlying motives behind the law—a classic distraction, to unify fissiparous sects and interests around a common bogeyman, and turn disputes away from raw social reality toward imaginary demons.

Seun Anikulapo-Kuti: Don't fuck with the Nation

LGBT rights activists joined the popular protests to retain the fuel subsidy.  They took heart from reports that Seun Kuti (popular musician and son of afrobeat pioneer Fela Kuti)  shouted at a Lagos rally against the move:  “When two men fuck each other, it is better than one man fucking the Nation as a whole.”  It’s hard for political commentary to top that (as it were).   However, I also like the remark of my friend Dorothy Aken’Ova, of the International Centre for Reproductive Health and Sexual Rights, INCRESE: “Nigerians now know what is [really] evil.” One can hope.

Mitt, money, Mormons, class

Among the revelations stemming from Willard Mitt Romney’s tax returns – now being combed with the exigetical intensity usually given to sacred texts – are his contributions to homophobia. Most directly, his family foundation gave $35,000 to two “pro-family,” anti-gay groups. For Mitt, of course, that’s nothing. But he also tithes — gives at least 1/10 of his income to his institutional religion, the Church of Jesus Christ of Latter-Day Saints; in the last two years, that amounted to more than $4 million. The Mormons, in turn, are big funders of the homophobes. Mike Signorile says, “The church itself gave over $180,000 to help pass Prop 8 [the 2008 anti-same-sex-marriage referendum in California]. The church was fined by the California Fair Political Practices Commission for not reporting its numerous financial contributions to the cause.” The Mormons also have a network of small, strange NGOS, circling around a few post office boxes in Arizona, that carry on similar struggles at the United Nations.

It seems to me this opposition has a large component of sour grapes.   Deep in the Church festers a feeling of: If we didn’t get to redefine marriage, why should you? 

The LDS, after all, held sacrosanct for years the practice of polygamy or plural marriage, as in Big Love, the better to multiply their congregants.   A Supreme Court ruling conclusively banned it in 1879, and eleven years later God spoke to the head of the Church and told him, be fruitful but only with one woman per, until further notice. But a certain resentment remains, a feeling that others should not get away with matrimonial overflow – whether beyond the bounds of number or of gender — denied to the chosen. I say this based not just on intuition but on some conversations with very right-wing Saints over the years. Most notably, around a decade back I spoke at a conference on religion at Cornell. Upstate New York (where Joseph Smith found the golden plates and the magic spectacles, and founded the glorious religion) still has warrens of underground Mormons, some of them dissident, clinging to the old-time faith, living in secrecy somewhat like monsters in an H.P. Lovecraft story.   Several were in the audience. They seemed to blink unfamiliarly at the light. They were all men, all compact as Toby mugs, with those patriarchal beards that omit mustaches and make the wearer look like his own ancestor, or C. Everett Koop. (Later, when I met Salafists in Egypt, I recognized the style.)

Brigham Young and his beard

After my address, we got into a discussion about the concept I’d introduced: sexual rights. Almost shyly, they asked how a right to sexual autonomy would affect the number of people one married. I said, very carefully, that one could in theory construct a human rights argument for legal recognition of polygamous relationships – as long as gender equality was respected. They perked up visibly, like portraits coming to life. The reservation about gender seemed to them a potentially endurable concession, something you could put in the law as long as you didn’t tell the women. The women wouldn’t learn to read, anyway! I felt that if we had a few more hours, we might almost have arrived at some historic compact, like Mussolini’s concordat with the Vatican: a polygamous-promiscuous alliance to sweep the nation simultaneously forward to the Age of Aquarius, and back to the Age of Abraham.  I wonder if we could revive the prospect someday. Divided, we are weak; but together, we can rule the world.

Happy Pride! You're fired.

Mitt, notoriously mercurial about everything, used to be a bit nicer to the gays. His opponents this year brought up a bright pink flyer his campaign distributed during his 2002 run for Massachusetts governor, with he and his running mate saying “All citizens deserve equal rights, regardless of their sexual preference.”  Mitt now says he never saw it before. Probably this is that pink slip he was always worried about getting.

Mitt’s devotion to one-man one-woman marriage is perhaps made more interesting by the fact that Mitt’s own family comes from the Mormon colonies founded in Mexico by plural marriers fleeing persecution in the United States. His father, George Romney, was born there, in 1916, just before the colonies broke up because of the Mexican revolution and the exiles returned to the U.S.   (George ran for president in 1968.  Spawned on foreign soil, he would, oddly enough, have been disqualified under the standards birthers try to use against that Kenyan interloper, Barack Obama.  Mitt’s son Tagg, who lately voiced his affinity with the birthers, might want to check his family history.)

On a very cursory search, I don’t see any evidence that Mitt’s own ancestors practiced plural marriage; there seem to be few enough of them to suggest that monogamy straitjacketed their sperm into limited outlets. But certainly they must have been ideologically, or theologically, in favor; that was the main motive for the exodus to the Sierra Madre.   It would be intriguing to confront Mitt with this genealogy sometime, particularly if Rick Santorum were in the room to contribute his own questions. They have coyotes in Mexico, Mitt; did your granddaddy marry any dogs down there? It could make an interesting discussion.

The reason I got to thinking about these things was because for weeks I’ve kept seeing Mitt Romney described, in news articles, as a “WASP” and an “aristocrat.” And he’s not.

It’s  a terrible, amnesiac misrepresentation. He cannot be called a WASP; Mormons are not, in the normal sense, Protestants, which is what the P stands for. They occupy their own distinct niche within (or maybe a little bit without) Christianity. Meanwhile, his clan were aristocrats, in  a sense, but Mormon aristocrats: dignitaries within a community that had long been a tribe wholly unto itself. Until his father’s generation, they had nothing to do with the seats of American power. The sachems of the Protestant ascendancy, with their rites of the Episcopal Church and the Porcellian Club, their temple complexes at Exeter and Andover, Harvard and Yale, their human sacrifices at the debutante ball, inhabited a completely different world. The Mormons were beneath their notice, hardly better than far-off Aztecs when viewed from New York or from the heights of Beacon Hill.

"In Memorial Brigham Young": 1877 anti-Mormon cartoon

In America, for a very long time, the Latter-Day Saints remained morally and sociologically isolated. It took the Mormon church decades to shed the disreputability that polygamy had smeared across it.  In the first decade of the 20th century, the US Senate required three years of hearings before seating an electee from Utah (the later-famous Reed Smoot), because his detractors claimed his status as a Mormon Apostle disqualified him.  (It was of Smoot and his battle against immoral literature that Ogden Nash wrote the immortal lines:

Senator Smoot (Republican, Ut.)
Is planning a war on smut …
Senator Smoot is an institute
Not to be bribed with pelf.
He guards our homes from erotic tomes
By reading them all himself.

Read more here.)

By the time the church had won a partial respectability, the civil rights movement of the 50s and 60s made it a pariah in a new sense. The Latter-Day Saints still understood the deity to say that blacks were a separate and inferior creation to whites; the rest of the United States heard the Lord, or at least the law, differently.   Only in 1978, when God changed his mind, did the ideological barriers separating the Church from broader American society fully relax. For those of us in the advocacy business, it would be interesting to know what kind of lobbying persuaded God.

Romney père: auto-maton

George Romney was a figure who bridged both worlds, the insular one of his tribe and the wider one of public power. He was a thoroughly self-made man – he never went to college, and worked his way up to head of the American Motor Corporation, which as they said at the time was fourth among the Big Three car companies. He then ran for governor of Michigan, and won.  Despite the Church’s residual prejudices, he fought racism vigorously in public life and supported the civil rights movement honorably. At the same time, he was a grandee of the Church, in every way a pattern of dignity and rectitude. (His uncle, also a Mexican colonist, had been the first president of what’s now Brigham Young University.) But with all that, you wouldn’t quite call him part of the American elite. The deliquescent ease with which his presidential candidacy dissolved in 1968 (his support melted away like Utah snow when he said he’d been “brainwashed” over Vietnam) indicated that the truly powerful felt no special closeness to him. He ended his career as Nixon’s secretary of urban development which in that administration was like a chauffeur pensioned off to polish hubcaps when he can no longer drive.

If you want to know what an American patrician looks like, cast an eye instead on George H. W. Bush: Andover, Yale, Skull and Bones, son of a senator and grandson of an arms salesman. How different from the Romneys! He was Gumby-postured and slouchy; he spoke like Bertie Wooster; he wore unpressed suits in the style of 1955, and he got blind drunk every day by 3 PM. (So it was rumored in Washington. He was careful to start press conferences and wars before noon.)   He didn’t have to prove anything to any higher class, because there was no higher class. He could just be who he was, although what that was in a deeper-than-sartorial sense he was never sure.  (Unfortunately, as a politician he was forced to pander to the lower classes, which caused him no end of trouble, as he proved terrible at it.  His apparently smug son George W. was actually much more insecure, probably accentuated by his eschewal of hooch, which served him well – he empathized with the jitters of the unwashed Yahoos, and could talk their language.)

Are these things clothes, even? They don't have pinstripes.

Mitt Romney is nothing like that. Just watch. He’s stiff. He’s uncertain. He combs his hair too closely and his suits seem to have been dipped in Superglue. He moves like someone who just got his body for Christmas, but lost the instruction manual.  Persuaded to wear unfamiliar jeans on the campaign trail in order to “humanize” himself, he keeps glancing down uneasily as if he’s really naked and they just haven’t told him yet. His robotic demeanor has nothing to do with the hauteur of “aristocracy.”  Iit’s the checked hyper-caution of someone watching his own every move and trying to be what he’s not. He’s impersonating a member of an elite that hasn’t let him in. As a devout Mormon leader he’s obliged to wear special underwear, certifying he and his genitalia are secretly sacred to the Lord. These antiquated garments keep showing in the imagination, faint creases through his shellacked clothes, and they seem like the most natural part of him. The rest is all costume, and it’s not cut to his size.

Mitt Romney’s father George remained  in and of the West, as Nick Carraway would say in Gatsby – in that abode of American individualism very different from the class-bound, class-defined East Coast. He knew his limits and by and large he stuck to them. (Michigan, for Carraway, would have been amply West enough.)  Mitt sought out the East; he came to Harvard; he stayed in Boston; and it’s fairly obvious this exotic Mormon with his strange skivvies never quite fit in. He still doesn’t fit in. He’s comfortable in a simple corporate world where status comes from money — but not in the world of class, that other ghost-world that persists and underlies it, made out of memories, of phrases registered and gestures half-remembered, where people are judged by a numinous quality of accommodating, of knowing how things are done or are undone, of understanding how life is woven out of signs and one must signal back to be a part of it. In his hardened carapace of fake skin, he sees the seamless world of the social but it can’t reach him.   He’s lost and no longer at ease there, not recognizing the looks on people’s faces, smiling when he ought to sigh.

Poor Mitt. He’s a prisoner of the persistence of class in American life. It’s the thing nobody talks about but everybody has to understand.

Maybe the real insecurity of his church is actually similar — I mean, the reason they spend so much money to “defend marriage”: they know the memory that shadows them in American society, the mark of their exclusion from the class system, is that they were off the map on marriage before, and now they must be plus royaliste que le roi.   Still, it’s Mitt who’s suffering right now from the paradox of class. His inability to comprehend it is destroying the political career he spent his adulthood trying to buy.

It’s sad he keeps getting confused with an “aristocrat”: that only makes things worse.   Maybe he’d be happier off in the simpler past, in that long-lost Mexico colony where each hut had bedrooms for eight wives, in the vanished century and the arid hills.  Somebody should ask him. Rick Santorum?