What The Supreme Court Will Actually Decide: Do Gay People Exist?

Frank Kameny was a life-long activist for gay rights.

Next week, the Supreme Court will hear the oral arguments on two legal challenges to laws that limit the government’s recognition of same-sex marriage. While there are various legal nuances to how both the Defense of Marriage Act and Proposition 8 cases might be decided, the Justices will actually be weighing a more fundamental question: Do gay people exist?

At the core of conservatives’ argument against marriage equality in both cases is the idea that gay people actually do not exist — only “homosexual behavior” does. In House Republicans’ final reply brief filed this week against DOMA, attorney Paul Clement argued that “sexual orientation is defined by a tendency to engage in a particular kind of conduct.” Proponents of Prop 8 similarly suggested that “sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition.” The U.S. Conference of Catholic Bishops added in its amicus brief that homosexuality is a “voluntary action” just like polygamy. In other words, people are only really gay when they’re having gay sex — otherwise they’re not.

Herein lies greatest challenge for gay and lesbian civil rights: the fact that sexual orientation is an invisible identity. Unlike race or gender, it cannot so easily be superficially assessed. Thus, conservatives are counting on doubt and distrust, urging the Court to dismiss whatever gay people actually say about their lived experiences — discount every individual’s coming out story, ignore decades of gay culture and gay history, and disregard the scientific conclusions of the entire major medical community. In fact, opponents of equality regularly claim that “the gay agenda” is merely a conspiratorial quest to validate sinful behavior — as opposed to an effort to allow millions of people to participate fairly in society.

The Court will have the opportunity to weigh the question of whether gay men and lesbians exist in both a legal and practical sense. The practical case for recognizing gays is simple, yet compelling: gay people exist and more importantly, are already raising children in families. All of the conservatives’ arguments rely on claims about “responsible procreation” and what’s best for children, but not one of them takes into account the millions of children already growing up with same-sex parents. Besides the fact social science research supports same-sex parenting, it’s quite easy to see how those families would benefit from the securities and protections of marriage equality. The Court could simply accept opponents’ arguments about the values and purposes of marriage, but rather than apply them in conservatives’ imaginary gay-free universe, acknowledge that they should apply equally and fairly to gay couples as well.

The magic words to look for if the Supreme Court legally recognizes gay people is “heightened scrutiny,” which is how the Court determines that the government cannot target a specific group for unfair treatment without substantial justification. For example, classifications based on sex are subject to “intermediate scrutiny,” and classifications based on race are subject to the highest level, “strict scrutiny.” When the Second Circuit Court of Appeals ruled in favor of Edie Windsor’s case against DOMA, it determined that intermediate scrutiny should apply. The Supreme Court, however, has not applied any level of heightened scrutiny for sexual orientation in past cases, even when ruling in favor of gay rights, such as Lawrence v. Texas (overturning sodomy laws) and Romer v. Evans (overturning a Colorado amendment banning LGBT nondiscrimiantion protections).

The Court has traditionally considered four criteria to determine whether laws that target a specific group should be subject to heightened scrutiny:

Has the group been historically discriminated against or subjected to prejudice and hostility?Does the group possess an immutable (unchangeable) or highly visible trait?Does the group lack sufficient power to protect themselves from the political process?Can you group still contribute meaningfully to society despite the distinguishing characteristic?

Undoubtedly, the answer to all four questions when considering sexual orientation is “yes,” but that hasn’t stopped opponents from arguing otherwise. Notably, House Republicans have actually argued that gays and lesbians are politically powerful because they have “attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.” Of course, the rate of progress is not indicative of the quality of that progress, and the very need for multiple challenges to discriminatory laws like DOMA and Prop 8 disproves the claim on its face.

If any of the Justices determine that the answer to any of these questions is “no,” they would have to deny many facts in the process. They would have to discount the government’s Lavender Scare witch hunts of the 1950s, decades of police persecution and brutality, the ambivalence to research HIV when hundreds of gay men were dying of AIDS, and laws that have specifically targeted gays and lesbians for discrimination, like “Don’t Ask, Don’t Tell.” They would have to set aside the 38 states that have banned same-sex marriage, many by a majority vote in a constitutional referendum. And they’d have to impose their own understandings of identity upon the millions of people who identify as gay, lesbian, or bisexual and cannot change their sexual orientation.

The end result of these cases will determine the legality of same-sex marriage, but for the first time, the Court could actually acknowledge that gay people exist and thus deserve protection under the U.S. Constitution. On both a symbolic and legal level, the latter victory could be much more significant.

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How Facebook Could Actually Be Good For Your Mental Health

Go ahead — check those notifications. According to a new pilot study conducted by Dr. Alice Good of the University of Portsmouth, the vast majority of Facebook users use the social network to lift their spirits when they’re feeling down by navigating their old photos and wall posts in which they’ve interacted with family and friends — a “self-soothing” coping mechanism somewhat akin to flipping through a photo album or watching old home videos.

Researchers argue that that could be a big boost for users who are prone to anxiety or depression by providing a healthy emotional conduit for reminiscing about the good times in one’s life. The findings also shed new light into what, exactly, users are looking to achieve when they use social media to share their feelings and experiences:

Psychologist Dr Clare Wilson, also of the University of Portsmouth, said: “Although this is a pilot study, these findings are fascinating.

“Facebook is marketed as a means of communicating with others. Yet this research shows we are more likely to use it to connect with our past selves, perhaps when our present selves need reassuring.

“The pictures we often post are reminders of a positive past event. When in the grip of a negative mood, it is too easy to forget how good we often feel. Our positive posts can remind us of this.”

Dr Good’s study has concluded that looking at comforting photos, known as reminiscent therapy, could be an effective method of treating mental health. [...]

The act of self-soothing is an essential tool in helping people to calm down, especially if they have an existing mental health condition.

The findings are particularly interesting given past studies that have indicated that Facebook users end up feeling depressed after a browsing session. For instance, one German study found that “one in three people felt worse after visiting the site and more dissatisfied with their lives, while people who browsed without contributing were affected the most.”

But those findings derived from users’ envy at their friends’ vacations, life milestones, and various successes. The new preliminary data from Dr. Good’s study suggests that, used in a different way — i.e., actively “self-soothing” rather than passively sulking — browsing through one’s Facebook history could be a net benefit. And that could be very good news from a global mental health perspective for the social network, which has over a billion users worldwide and counting.

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GOP Congressman Says Supreme Court Doesn’t Actually Get To Decide Whether Laws Are Constitutional

Rep. Jim Bridenstine (R-OK)

Still smarting over last year’s ruling upholding Obamacare, freshman Rep. Jim Bridenstine (R-OK) dismissed the idea that the Supreme Court decides whether or not laws are constitutional.

“Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional,” Bridenstine said in a Daily Caller interview posted Sunday. After accusing Democrats of “stacking the courts in their favor” — five of the current nine justices were appointed by Republican presidents — Bridenstine dismissed the idea that Congress must write laws within the boundaries set by the Supreme Court. “That’s not the case,” the Oklahoma congressman said.

The interviewer, Supreme Court Justice Clarence Thomas’s wife Ginni Thomas, didn’t have the heart to correct Bridenstine’s peculiar view of the Court’s role.

BRIDENSTINE: Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional. What that means is that that’s what they decided on that particular day given the makeup of the Court on that particular day. And the left in this country has done an extraordinary job of stacking the courts in their favor. So what we have to do as a body of Congress is say, “look, just because the courts” – and I hear this all the time from Republicans – they say that the court is the arbitrator and after the arbitration is done, that’s the rules we have to live under and we can go forth and make legislation given those rules. That’s not the case. A perfect example if Obamacare. Obamacare is not constitutional, the individual mandate.

Watch it:

There is certainly good reason to doubt the way this Supreme Court reads the Constitution — Citizens United alone proves that point. Our current court gave sweeping legal immunity to wealthy corporations. It took away Lilly Ledbetter’s right to equal pay for equal work. It shrinks reproductive freedom because women may “come to regret” the choices they make if they have control of their own bodies. And it appears poised to strike down a key provision of the Voting Rights Act.

But the idea that this particular Court distorted the Constitution to uphold Obamacare does not even pass the smell test. In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from President George W. Bush, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.”

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NRA Endorsement Actually A Curse For Candidates, Poll Finds

Endorsements from the National Rifle Association might be doing political candidates more harm than good, according to a new poll from Public Policy Polling.

In a national survey, 39 percent of voters said that they are less likely to vote for a politician whose candidacy has garnered NRA backing. Only 26 percent believe they’re more likely to support such a candidate.

But more importantly, the number of independent voters — those who are really up for grabs in any election — are far less likely to see the NRA nod as a good thing: 41 percent say they’re inclined not to support a candidate who’s backed by the NRA.

This information serves to bust the myth that the NRA is an all-powerful lobbying group that dictates political outcomes. While the organization may enjoy wide support among those politicians whose campaigns it bankrolls, soon there may be few of such politicians left; in 2012, only .81 percent of the group’s spending went to politicians who won. And if the NRA is having a negative influence on swing voters as well, then it really has no sway on political elections overall.

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Did Elizabeth Warren (D CAND, MA-SEN PRI) actually claim minority status for her own benefit, after all?

Alternate title: I was wrong about Elizabeth Warren.

I hate to admit being wrong, of course, but I’m pretty much stuck here.  You see, last week I RedHotted a post where in passing I more or less indicated that I didn’t think that it was particularly fair to ding MA senatorial candidate Elizabeth Warren for her claims of Native American ancestry.  When I read the story, it seemed that she had merely repeated it as an anecdote from her family history – which is to say, something that I’ve done myself (family history claims a Huron great-grandmother; I have no evidence whatsoever for this).  I also didn’t really think that it was all that big a deal that Harvard University was claiming minority status for her for a time; universities do weird things for publicity, she wasn’t running for office when it happened, and besides, Harvard stopped doing that a while back anyway.  I figured that there were more important things that I could be doing with my time.

Well.  This is what happens when you trust the ethical sense of a progressive politician.  It turns out that Elizabeth Warren in fact claimed minority status:  specifically, in the “Association of American Law Schools’ annual directory of minority law teachers” (H/T: @CoonDawg68) from 1986 to 1995 (more about this at The Volokh Conspiracy (via Instapundit), which also has some interesting details about  ‘racial fraud’ as a legal concept in Massachusetts).  As the Boston Herald helpfully notes, universities would have had access to this information… which, presumably, would include their hiring committees.  Are we really expected to believe that Harvard University didn’t consult the AALS minority directory as part of their vetting process?  In fact, are really expected to believe that the University of Pennsylvania didn’t, either?  – Because I don’t, and that means, again, that I was wrong.  And I’m sorry about that.

Meanwhile, and very much to pile on the liar, there’s this additional piece of Elizabeth Warren mendacity, courtesy of the NY Post:

As recently as January, [Elizabeth] Warren was still crying poor, saying on MSNBC: “I realize there are some wealthy individuals — I’m not one of them — but some wealthy individuals who have a lot of stock portfolios.”

No, she has mutual-fund portfolios. Her financial disclosures put her worth between $4.6 and $14.5 million.

I should probably note for the record that when this came out it raised eyebrows from The Daily Caller to The Huffington Post, although everybody at the time looked more at her net worth than at the way Warren held her wealth.  It’s still representative of the essential unreliability of the candidate: after all, there’s nothing wrong with being wealthy.  My family is not making anywhere like this kind of money, and we are doing fine; I don’t resent Elizabeth Warren her money.

I do resent being lectured to on economic affairs by a rampaging, hypocritical opportunist.

Moe Lane (crosspost)

PS: You know what Scott Brown‘s never done?  Condescended to me about my middle class travails when he’s been insulated from them for over a decade via a Ivy League bubble.

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