Wayne Besen - Author, Activist, Columnist, Public Speaker

Wednesday, July 26, 2006

Washington Marriage Ruling Decided Partly On 'Ex-Gay' Nonsense

Ex-Gay Watch's Timothy Kincaid pointed out today that the Washington Supreme Court's decision that gay couples are not entitled to equal protection under the Constitution because they can change. Judge Barbara Madsen justified her bigotry this way:

"Laws challenged on the basis of race or sex discrimination are generally subjected to more searching review. But Justice Madsen wrote that the plaintiffs were not entitled to such review because they had not demonstrated that homosexuality is an immutable characteristic like race or gender."

Thanks Timothy for the heads up!

49 Comments:

Missing from all of these court rulings are acknowledgements that gay couples exist and what alternatives are open to them. I find that more appalling than the unacceptability of the actual rulings themselves. I have read nothing from any of these rulings that even hints at achieving some kind of equality. It appears that none of these legal experts have read any rulings from more progressive countries like Spain or Canada in which the leaders had the balls to stand up to obvious religious prejudice and "today, we restore dignity to people long marginalized" (Spain), or, "we cannot cherry pick rights" (Canada). I just for the life of me, cannot understand why these rulings contain no acknowledgment whatsoever or really, come right out and say what this supposed "marriage protection" really is: religious bigotry and distaste for gay people. It is not about their nonsensical blather about the sanctity of marriage or protecting children, it comes down to how they real feel about gay people, which is not exactly warm and fuzzy. Secondly, the "not immutable trait" nonsense has been debunked for decades and all one really has to do is research a credible source (APA, or AMA) to find the truth, not bullshit from a religious hate group or the liars that run gong shows like NARTH.
posted by BC WaterBoy, at 7/26/2006 9:40 PM

Oh my!

And did judge Madsen specify what would constitute an acceptable demonstration of immutability?

(The thought occurs to me, looking at pictures of Michael Jackson, that race appears to be somewhat mutable......)
posted by Phil, at 7/26/2006 9:53 PM

From here in the hotseat - 'liberal' Seattle. The comments posted in response to an article in the Seattle Times read like: Heartfelt and thoroughly human - 50% non scientific survey. 20% Angry, outraged, belligerant towards any religious viewpoint. 30% relieved at the Justices decision, and quoting, verse by verse, Focus on the Family (F**king up any loving Family) talking points.

What's evident is fear, Fear FEAR.... and all it's glorious minions: suspicion, distrust, confusion, uncertainty, panic, etc. The responses read 50% connected to emotions, and saddened. 20% fearful convinced that religious right folks are lifeless soul sucking automatons. 30% convinced that gay = Cannibal / Naked / Drag Queens / on the edge of your gated community / super rich / will steal your young boys, etc.

Fear is on both of the minority teams. A deep desire for restoring our souls, our hope, a connection based upon what gives our lives meaning, is the basis of the 50% who feel something - sad.

The 20% pro-gay seem to rely upon the bean counters for their strength.

Several speakers at tonights pro-gay response, at the primary Baptist Church in the region, wowed us all with their passion, their brilliance, and their wisdom. Most of all their deep empathy was a model for gay people, and for all of us, especially those embroiled in the war in the Middle East.

It's all the same. It's not just about us.

D Pecan - My real moniker when I can figure out the protocols for establisning a Blogger identity..... Grrrrrrrr to the technocrats who designed the incomprehensibe registration for this site.
posted by Anonymous, at 7/27/2006 4:05 AM

Judge Madsen didn't claim that homosexuals could change their orientation. She said that it hadn't been proven that they could not change their orientation - a completely different claim.
posted by Anonymous, at 7/27/2006 6:59 AM

Yes Anonymous, we understand what she claimed.

But did she indicate what would constitute acceptable evidence of immutability? What she and the courts would looks for as evidence of immutability?
posted by Phil, at 7/27/2006 7:34 AM

It occurs to me that as no-one, so far as I know, has demonstrated that heterosexuality is an immutable characteristic, Judge Madsen must be unwilling to sanction the marriage of a man to a woman.

Or HAS someone demonstrated that heterosexcuality is immutable? What form did the demonstration take, and where is the evidence recorded?
posted by Phil, at 7/27/2006 8:47 AM

It's not "fear, fear, fear" that brings about shameful rulings like the ones that came down yesterday against marriage equality and Lesbian and Gay military service. It's HATE, HATE, HATE, and political power. Conservative presidents and governors have succeeded in packing the courts with judges who believe ideology trumps jurisprudence. These decisions are the direct result of Right Wing political spoils-taking. If we think legislatures will now take up our righteous cause, as many activists are suggesting, we're fooling ourselves. They're dominated by ideologues, too. We want marriage? Then we're going to have to agitate for it. Marches, rallies, civil disobedience. The question is, do Gay people really want marriage rights that strongly? Where I live in the Midwest, Gay "leadership" is almost as hostile to marriage equality as the Right Wing.
posted by Stuffed Animal, at 7/27/2006 9:47 AM

I dont think for a second that sexual orientation is a 'mutable' choice, BUT, just suppose it were. Who the fuck are they to tell 2 consenting adults they cant be a legal couple (married)?--whether it's a man and woman or 2 adults of the same gender. I believe it goes 'and the pursuit of happiness'; NOT the pursuit of happiness UNLESS the majority of the citizenry disapproves.
B. Queer
posted by Anonymous, at 7/27/2006 11:22 AM

To Stuffed Animal,

You asked whether gay people really want marriage rights. Given the events of the past couple of years, in particular, I don't know how anyone could question that. If your local "leaders" are hostile to the idea, maybe they should check in with their constituencies. I have friends who think that getting married emulates straight society too much. We're all entitled to decide for ourselves--or we would be, if we had the right.

It's not whether every gay person would want to be married, but whether a group of citizens should be deprived of the opportunity to take part in what straight Americans take for granted, to have the legal protections and responsibilities of straight couples. There's no logical reason for us not to have that right, but you throw religion into the mix, and we're back in the Middle Ages.

For myself, I think the institution of marriage is an outdated concept, but hey, if I meet the right woman, I might just change my mind. The point is that I don't want to be a second-class citizen in my own state and country. I live in Oregon. The voters here passed a constitutional amendment "defining" marriage, and it doesn't include me and my prospective wife, should she exist.

So yes, gay people want marriage rights, regardless of whether we choose to exercise them.

One question that I have not seen asked anywhere is this: since when is equality or any other civil right a matter of majority rule? I contend that if that were the case in 1954, we'd still have segregated schools; and if it were true in the late 1960's, interracial marriage would still be illegal in a number of states. And would I have the right to vote? I wonder.

And yet we (the larger "we") are acing as if voting on another person's rights is normal, okay, acceptable. I think it's bullshit, and it's certainly setting a dangerous precedent for any kind of minority.

Some day, people will look back at this time and wonder just what the hell our problem was. I just hope it happens in my lifetime.

Patricia Hansen
Portland, Oregon
posted by Anonymous, at 7/27/2006 11:33 AM

To B Queer,

And don't forget "equal protection of the laws."

Patricia Hansen
Portland, Oregon
posted by Anonymous, at 7/27/2006 11:34 AM

Now, please tell me that the open discrimination under the color of the law that thee court is claiming, is not an step closer to impose persona views over the equal rights protection that anyone in American territory is entitled to.

Now, tell me that there is not a level of fundamentalism involved in the court desiciosn, tell me that, if these activist judjes are not stoped, eventually they will enact the "Deuteronomy Act"
posted by Anonymous, at 7/27/2006 1:01 PM

I think one thing we have overlooked here which is significant is that for some reason, the plaintiffs in this case did not seek redress for statutory damages caused by individual statutes - Madsen's opinion makes that point at least a couple of times. So, in the justice's mind, the Court wasn't able to use those as a means to measure discrimination, even though the justice admitted such discrimination exists.

It sounded to me like the plaintiffs wanted the whole ball of wax or nothing - and it was possible that the court could have struck down several individual statutes providing special rights to heterosexuals only. We didn't go that route.

To me, the worst part of the argument from the Court was the notion that gays were free to marry anyone of their choosing of the opposite sex - to me, that revealed just how deeply shallow and ridiculous it is to have hundreds of special rights laws for straight people only.

I think, based on the Courts decision, every trannie who wants an operation should file suit against the State, demanding coverage for the operation and citing irreparable harm because the operation is necessary to access benefits and privileges of marriage. At the same time, every gay/lesbian should marry opposite sex partners at random, have one file for annulment, then sue the State's annulment law citing this Court's claim that apparently sexual relations are NOT required in marriage.

You know, we either need to get tough and creative or get over it. I was furious at the responses from our national organizations..."We are disappointed"...disappointed my ass. We are OUTRAGED. If our own damned organizations can't get beyond "disappointment" after putting our entire community through the hell and public scrutiny over these last two years and claim some OUTRAGE, how the hell do they expect us to win anything?
posted by Kevin, at 7/27/2006 3:43 PM

"Judge Madsen didn't claim that homosexuals could change their orientation. She said that it hadn't been proven that they could not change their orientation - a completely different claim. "

It isn't possible to live up to Madsen's criterion. In logic you cannot prove a negative.

Just because race has never ever in the history of time been mutable does not prove it is immutable. It is impossible to prove that Condi Rice will not wake up tomorrow as an asian man. You cannot prove that it won't happen.

But we can say that race is immutable because based on experience it hasn't been observed to happen.

So too, based on experience, reorientation (change of actual sexual desire and attraction - not religious conversion) does not happen. Of all of those who champion their ex-gay testimonies, only a tiny tiny number are so brash as to claim that their sexual attractions have gone from homosexual to hetersexual. The vast majority simply say they have "given up their homosexual lifestyle".

Their religion was mutable, their orientation not so much.

Timothy
posted by Anonymous, at 7/27/2006 3:47 PM

These are times that truly try people's souls - especially those of us who are GLBT, and of course our friends and allies included.

If NY, WA and GA courts had ruled in favor of Marriage Equality, at this time, we would be hearing neocons screeching "Activist Judges" and denouncing "Activist Liberal Courts" reinforcing their demand for the need for the FMA to be passed at the Federal Level from every MSM outlet across the nation. Instead, those guns are silent anytime the Judiciary hands down a ruling that favors their sense of righteous indignation and moral absolutism. It is equally sad that they are not being called on their duplicitous tactics and anti-American tirades against the Judiciary when it suits their purpose, effectively destabilizing and demoralizing the public at-large against the "rule of law" and the "checks and balances" that have underpinned our nation for two centuries.

These State courts have handed our community a setback and temporary defeat. But if history can teach us anything it should be that while we may have lost these squirmishes the war is not lost. Looking at it from the perspective of the "glass being half-full" the neocons also have had one of their biggest rallying points pulled from beneath their feet as well. In State after State, in elections since 2000, the Rovian playbook has leveraged referendum after referendum on the question of Gay Marriage. Many a red state voter turned out to vote against us more than they did to vote for anything else on the ballot.

The lesson learned is that we have failed in our mission to educate and truly get a national concensus behind our cause large enough to foment the broad spectrum acceptance that is neccessary to seal the deal on complete GLBT Equality under the Law. It is equally encouraging that the legal foundation set down in each of these State court rulings is based upon principles that have not withstood the test of time for any other Civil Rights argument in our history. Our community withstood the Bowers v. Hardwick decision in 1986 only to finally achieve victory and triumph in 2003, some seventeen years later in Lawrence v. Texas, and of course the civil rights movement had Plessy v Ferguson.

I am attempting to remain optimistic in the face of diversity by illustrating that if these current court battles mean anything at all - they should reinforce our belief that we are engaged in a fight to the finish in a war for complete GLBT Equality under the Law and like many wars there will be many smaller battles lost along the way but we cannot lose sight of the ultimate goal. We must redouble our efforts by countering the misinformation and homophobia that obviously still pervades a great many of our fellow citizens. We have to a better job of countering our enemies propaganda and misinformation - a challenge that Wayne Besen continues to champion!

--
Paul in Houston
posted by Anonymous, at 7/27/2006 8:03 PM

My letter to the editor to my local newspaper was published this morning: "Gay union ruling judicial activism," By Thomas Kraemer (Corvallis (Oregon) Gazette-Times, 7/27/06)

I touch on the issue that the court ruled being gay is a choice unworthy of the same legal protections given to people who choose to join a religious minority. I am not surprised. I predicted this type of ruling would happen after the Lawrence decision (which "legalized" homosexual sodomy in 2003) because it also ruled that gay people are not legally protected as are racial or relgious minorities. (See "'Separate but Equal?' Scrutinizing the Sodomy Decision," By Thomas Kraemer, GayToday.com, July 7, 2003 and "'Separate but Equal?' Scrutinizing Oregon's Marriage Law," By Thomas Kraemer, GayToday.com, March 22, 2004)

I think the legal strategy so far has set back gay rights. The anti-gay marriage court decisions so far have made it legal to discriminate against gay people with only a "rational basis" instead of the "strict scrutiny" given to laws that discriminate against racial or religious minorities.
posted by Thomas Kraemer, at 7/27/2006 10:18 PM

Excellent blog, thomas. I think it is time that we all get active. My state is currently in a court battle over same-sex marriage and I am feeling more an more hurt by the issue. This is not just an issue the touches people that have a sig other. It will at some point touch all of us. When Maryland was debating the issue, I went into all the aol m4m chats and reminded them to attend the rally by "Equality Maryland." I can remember a time when I didn't think this issue would touch me. Now it has and it's an issue that should touch every gay american or friends and family of gay americans. Whether it affects you now or not, it may affect you sometime in the future.
posted by jekelhyde, at 7/28/2006 11:30 PM

Timothy,

It most definitely is possible to prove a negative. If someone claims that an alien spaceship is visible from your front lawn, then you can easily go out to your lawn and prove for yourself that there's no spaceship.

Sorry for the heavy philosophising.

As for reorientation not being possible, come on, sure it's possible, in some cases. You've got no good grounds to accuse everyone who says they've shifted from gay to straight of being a liar. I could probably make myself go straight, if I wanted to, which I don't.
posted by Anonymous, at 7/29/2006 5:45 AM

Perhaps you could make yourself go straight, but would your desires change. That is doubtful and that should be the question. Sure I could get married to a woman. I would be miserable and so would she. These courts are telling gays that they are allowed to marry as long as they marry someone that is chosen for them, gender-wise. It is discrimination. But it's based in ignorance.
posted by jekelhyde, at 7/29/2006 9:21 AM

Sexuality is mutable. If a child is molested it has an effect on their sexual development. If a woman is raped she may re-coil. Etc. ETc... Etc.. Can gender specific preference be mutable - I don't know. Greg Luganis talks about being raped by a boyfriend and he still seeks same sex relationships - are there others?? I do not know the answer.
posted by Anonymous, at 7/29/2006 7:47 PM

The court ruling was discriminating in everyway. Who cares if a person can change or not???? This makes me so angry! Why cannot two people of the same sex enjoy the rights and privileges of marriage (tax benefits, property transfer rights, capital gains advantages, health care, etc..) Your local Ex-Gay that you don't believe exists.
posted by Anonymous, at 7/29/2006 7:50 PM

Because if we can change we are asking for special privilages not equal rights. Haven't you been listening?
posted by jekelhyde, at 7/29/2006 8:04 PM

Of course I have been listening. But being able to change does not mean that special rights are being asked for. Gays want their lives to be treated with respect.
posted by Anonymous, at 7/29/2006 8:23 PM

If we can change than we are already equal to straight people and we can marry any time if we choose to do so. I maintain that because I cannot change, I am being denied the right to marry, period.
posted by jekelhyde, at 7/29/2006 8:35 PM

No- I disagree. You should be able to marry then man you chose to marry. That is not a special right. It is a right that is being denied. You should also have the right to "try to change" if you want to. I doubt that would work for you LOL. But you should have the right. Being able to change or not change is an issue that someone choose to make - but the real issue is being able to express yourself in a loving relationship with all the same legal benefits and shit as the rest of us. That is the issue. And the truth is the christian right does not want you to do that. So they lie, too about the possibility of change. But it is not about change. It is about choosing for yourself what you want to do.
posted by Anonymous, at 7/29/2006 8:53 PM

But it is about change. Legally, we have equal rights as far as they are concerned, because we can choose to marry someone of the opposite gender. It doesn't matter if it's right or not. It's a law based upon the ability to choose your orientation
posted by jekelhyde, at 7/29/2006 9:00 PM

Can you expand that thought please. Thanks
posted by Anonymous, at 7/29/2006 9:06 PM

These judges have deemed homosexuality to be chosen, unlike race or gender, and therefore not a trait that one can be discriminated on the basis of. Therefore, it's not discrimination to say that gays can't marry, since in their minds we can marry, we just choose not to do so. According to them, we want to live a life outside the norm, therefore we are asking for special privilages, since we already have equal rights.
posted by jekelhyde, at 7/29/2006 9:20 PM

So, you have let "judges" decide that you are asking for special privileges instead of just saying that anyone has the right to marry a person of their choosing. Granted blacks cannot change their color nor can whites but they can change who they love - right? So, isn't love mutable? Not really - and why aren't gays approaching this from the angle that you can't change gender and you love who you love? Just a thought? I mean, obviously, it is going to be a long elusive battle to determine where in the mind and body sexuality exists (probably both) and can it change or not (probably for some but not for all). It just sseems odd that anyone would allow a "judge" to determine how they will define love for another human being.
posted by Anonymous, at 7/30/2006 2:03 PM

No one is "letting" the judges or anyone else do anything. That is what Wayne and others like him are fighting for. And we are up against a large thick wall with the politicians in bed with the religious right. But it must be a war fought with knowledge and compassion, coinciding with anger and passion. The Christian right will never go for the, "Love is love" deal. And they've convinced a fair number of the general public that we are all perverts who will eat your kids when you aren't looking. That is why Wayne's crusade against the Ex-gay establishment, (and before you get defensive I'm not talking about you), is damned important. Polls show that that majority of americans who believe that homosexuality is a choice will vote us down at every turn, from adopting children, to hate crime legislation, to housing and job discrimination. People who believe that being gay is something that one is born with, are more likely to vote for equal treatment under the law.
posted by jekelhyde, at 7/31/2006 9:02 PM

How lucky gays are that people who can be fooled into thinking that homosexuality is inborn are prepared to tolerate something that many of them consider abnormal or morally wrong. Unfortunately this group of people will probably never be the majority. Why not, you ask?

Advocates of the born gay theory have presented what they consider a definitive case for this theory. Although they may not yet realize this, this means that they will never be able to come up with anything which is both new and of genuine importance. They can keep discovering new facts and points of detail, but if they were right, these facts and details could not alter the basic picture, which according to them, we already understand. This would mean that no more evidence is needed, and sexual orientation research should end.

The trouble is that most people are only impressed by things that look new and significant. When you adopt a line of reasoning that means that you can never offer anything new of real significance, you are ensuring that you cannot impress or convince anyone not already impressed or convinced.

So, if most people are still not convinced by all those supposedly definitive arguments that people are born gay (and I believe they aren't) then there is no chance that scientists can ever come up with anything to convince them. By the time gay activists realize this, it will quite possibly be too late for them to come up with a different strategy.
posted by Anonymous, at 8/01/2006 5:01 AM

You believe that people are not born gay? Fine, you are entitled to that belief. I believe that I was born gay. I remember my first crush when I was five years old and it certainly wasn't on a woman. It wasn't sexual in nature, but it was a crush, nonetheless. Of course anticdotal evidence will never convince you or anyone else, but I know I am not the only gay man in the world who developed "puppy love" about another guy before puberty. The thing is, gay people know. So we have to search for ways to prove it to the people who don't know; the people who hold our future in their hands.

On the other side is the gay people who know and hate it, and try like mad to change it, usually due to outside influences. Then they spend the rest of their lives, or a least a good portion of their lives working against that which they, too, KNOW.

You can believe what you want, as they will. But at this point we are working on the defensive. They are telling the world that we are simply deviants dabbling in sexual taboos and don't deserve marriage or other rights. We are attempting to counter that notion by telling the world what we know and attempting to back it up with scientific studies.
posted by jekelhyde, at 8/01/2006 5:15 AM

Jekelhyde,

I'm pointing out that there is a problem with your political strategy - convincing people that gays are born that way in the hope that this will lead them to support gay righs. This strategy has had its chance to work. It has not worked. Despite the born gay theory being supposedly definitively proven, most people still do not believe that people are born gay.

So what, if anything, do you think would lead to most people being convinced of the case for gay rights? Generational turnover? But if that will work by itself, what was the point of the whole born gay strategy supposed to be?
posted by Anonymous, at 8/01/2006 6:39 PM

Truth, that's the point. Fighting the lies, that's the point. And don't say that it hasn't worked. The fight has only just begun. Not enough people have been reached because we don't have the funding of the religious zealots. I've worked up and ad campaign fit for television. If and when I find the financial backing, we'll see what works.
posted by jekelhyde, at 8/01/2006 9:35 PM

Jekelhyde,

The idea that the reason why the born-gay strategy has not worked yet (and thank you for admitting the obvious fact that it has not) is because gays don't have the money to make it work is pretty odd. Have you forgotten that gays have the backing of the mainstream liberal media? They're not exactly in the poor house, are they?

I think the born-gay message has already been conveyed to the public pretty well. The public by and large seems not to have accepted it. So what are you going to do? Repeat the same message over and over and over again in the hope that sheer repetition will make people accept it? Or perhaps could you come up with some new arguments to support it instead?

The problem with devising new arguments is that, if you really think you have a definitive case, no new arguments should be needed, or even possible. New scientific evidence should be equally redundant and unnecessary. So as a result you really are stuck with repeating the same stuff, over and over. This is more likely to bore people rigid than convince them of anything. Nothing is impressive these days unless it looks new. One result of proclaiming that you have an absolutely convincing, definitive argument that people are born gay is that, by your own reasoning, nothing really new can be produced. See the problem?
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