Ben Smith is reporting that gubernatorial candidate and anti health care reform crusader Rick Scott is now attacking his Republican opponent, Attorney General Bill McCollum, for endorsing “pro-homosexual rights candidate Rudy Giuliani for president in 2008″:

Rick Scott is running for Florida Governor as a “conservative outsider.”…McCollum endorsed pro-abortion and pro-homosexual rights candidate Rudy Giuliani for president in 2008 and was a Giuliani campaign leader in Florida.

You can read the entire memo here, but what’s surprising is that Scott doesn’t criticize McCollum for hiring antigay “expert” and Family Research Council co-founder George Rekers to testify in a gay adoption case. McCollum recruited Rekers over the objections of his staff and was later embarrassed after it was revealed that Rekers traveled to Europe with a male “rentboy” and received “erotic messages.” “McCollum had paid Rekers $120,000 in tax payer money to testify in a Miami-Dade case against gay adoption,” which Democrats are now demanding be returned to the state.

Florida has been recognized by eQualityGiving.com for being one of the least gay-friendly states in America and both Scott and McCollum plan to keep it that way. Both candidates support the states’ constitutional prohibition against gay marriage and the ban against gay adoptions.

Since President Obama nominated Elena Kagan to the Supreme Court, conservatives have promised to “rigorously question Kagan” about where she stands on the “variety of legal challenges [facing] health care overhaul.” Sen. Jeff Sessions (R-Ala.), the judiciary committee’s ranking Republican, said in his opening statement, “The president and Congress have taken over large sectors of our nation’s health care system.” He called on the courts to rectify this problem,”Americans want a judge that will be a check on government overreach, not a rubber stamp.”

In the clip below, Sens. Jon Cornyn (R-TX) and Tom Cobrun (R-OK) challenge Kagan on the commerce clause. Cornyn and Coburn complain to Kagan that they disagree with the Court’s broad interpretation of the commerce clause and Kagan reminds both Senators that this long standing precedent is, in fact, the state of current law:

CORNYN: But again, the Tenth Amendment, which I think most people sort of popularly view as an expression of our federalist system, and the fact that the states and individuals retain power that’s not been delegated to the federal government, has largely, in my opinion, been rendered a dead letter by Supreme Court decisions…..if Congress can force people to — who are sitting on their couch at home — to purchase a product and penalize them if they don’t purchase the government-approved product, it seems to me there is no limit to the federal government’s authority and we’ve come a long, long way from what our founders intended.

KAGAN: Well, I think the current state of the law is to grant broad deference to Congress in this area, to assume that Congress knows what’s necessary in terms of the regulation of the country’s economy, but to have some limits. And the limits are the ones that were set forth in the cases that you mentioned, the Lopez case and the Morrison case, which are where the activity that’s being regulated is not itself economic in nature, and is activity that’s traditionally been regulated by the states.

But while Cornyn disagrees with the Court’s commerce clause precedent, he agrees with its decisions on gun rights and campaign finance. Moments after dismissing the Supreme Court’s rulings on interstate commerce, he praised the nominee for recognizing “that cases like Heller, McDonald, Citizens United are — are the law of the land and entitled to — entitled to deference by succeeding courts, even if you may disagree with the outcome.”

Watch a compliation:

As Kagan reminds him, as a Justice, she won’t have the privilege of choosing which precedent she agrees with. “The entire idea of precedent is that you can think a decision is wrong. You can have decided it differently if you had been on the court when that decision was made. And — and nonetheless you are bound by that decision. That’s — if the doctrine of precedent enabled you to overturn every decision that you thought was wrong, it wouldn’t be much of a doctrine.”

Indeed, the consequences of overturning the Court’s interpretation of what Congress can regulate under interstate commerce are fairly extreme. As Sy Lazarus argues in yesterday’s Politico, “if accepted by the Supreme Court, these theories could shatter the constitutional foundations of landmark programs like Social Security, Medicare, civil rights and environmental protections.”

President Obama is right.  The attacks on Supreme Court nominee Elena Kagan’s record are “pretty thin gruel.”  But lacking any reason to oppose the President’s nominees has never stopped Republicans from offering up kneejerk opposition in the past.  For the most part, today’s hearing has been no different.  In the absence of any real case against General Kagan, GOP senators have largely followed one of three models during this week’s hearings.

• The Sessions/Cornyn/Coburn Model: Double-Down on the Crazy

On the eve of the hearing, Sen. Jeff Sessions (R-AL) demanded that Kagan embrace a radical “tenther” view of the Constitution and strike down laws conservatives don’t like.  Yesterday, Kagan made very clear that she will not agree to turn the Constitution into the right-wing’s plaything.  Nevertheless, many of the Committee’s conservatives refused to let this issue drop.  Sen. John Cornyn (R-TX), for his part, claimed that the recently enacted Affordable Care Act violates the Tenth Amendment –  a position that places him well to the right of even ultra-conservative Justice Antonin Scalia. Sen. Tom Coburn levied similar attacks against health reform.  Not to be outdone, Sessions based much of his questioning on the writings of Richard Epstein, a fringe legal academic who describes Social Security and Medicare as “deeply flawed from the outset” and who supports the nearly complete repeal of anti-discrimination laws.

Amusingly, Sessions also spent much of the day lying about lying.  In multiple press interviews, Sessions accused Kagan of not being “accurate” when she said that military recruiters were allowed on Harvard campus during every single day that she was dean of the law school.  Sessions, however, could not actually cite a single false statement by Kagan, and Kagan’s version of events is supported by her very conservative predecessor as Harvard’s dean.

• The Graham Model: Fight Tomorrow’s Battle

Easily the most effective GOP questioner was Sen. Lindsey Graham (R-SC).  For one thing, Graham was the only Republican who directly acknowledged the strength of Kagan’s qualifications for the Supreme Court.  He read at length from a letter by ultra-conservative attorney Miguel Estrada, which praised Kagan and endorsed her nomination, and he cited several briefs Kagan had signed that he agreed with.  By the end of his time at the microphone, Graham — who also supported Justice Sotomayor — looked a lot like a “yes” vote.

At the same time, however, Graham extracted some valuable concessions from Kagan.  During the Bush Administration, Estrada was himself a nominee for the D.C. Circuit, but his nomination was blocked after Bush officials systematically blocked the Senate from receiving any information about his views.  Today, Kagan described Estrada — a personal friend of hers since law school — as qualifed to sit both on the D.C. Circuit and on the Supreme Court, and she offered to write Graham a letter saying as much.  Although Graham also tried and failed to get Kagan to endorse legislation formalizing military commissions and limiting Miranda, her endorsement of Estrada could prove quite valuable to conservatives if one of their own is picking judges in the future.

• The Kyl Model: Get Really Defensive

Chief Justice Roberts and his right-wing collegues were the big losers during yesterday’s hearing, a several of the Committee’s more progressive members spent the day highlighting the Roberts Court’s love affair with powerful corporate interests.  Faced with such a damning case, Sen. Jon Kyl (R-AZ) went on the defensive.  During the hearing, Kyl tried, unsuccessfully, to claim that the Roberts Court was just following the law when, in case after case,  it granted sweeping legal immunties to corporations.  And he even called the case against the Roberts Court “fraudulent” on a right-wing radio show.

What Kyl could not do, however, is offer any explanation for why corporations should be immune from a 60 year-old campaign finance law, why banks and drug companies shouldn’t have to follow state law, why a century-old rule banning price fixing should cease to exist, or why women and older workers should not be protected against discrimination.

Solicitor General Elena Kagan reiterated her strong opposition to Don’t Ask, Don’t Tell during today’s confirmation hearings, telling an irritated Sen. Jeff Sessions (R-AL) — who insisted on calling her “Dean” — that she opposed the policy then and she still does now:

KAGAN: Senator Sessions, I have repeatedly said that I believe that the “don’t ask/don’t tell” policy is unwise and unjust. I believed it then and I believe it now. And we were trying to do two things. We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own anti-discrimination policy and to protect the students whom it is — whom it — the policy is supposed to protect, which in this case were our gay and lesbian students. And we tried to do both of those things.

Watch it:

As you can see, Sessions was fairly frustrated by Kagan’s reply. His argument is that Kagan’s activism against the policy undermined the military and sacrificed the national interest. “What I’m having difficulty with is why you would take the steps of treating the military in a second-class way, to speak to rallies, to send out e-mails, to immediately, without legal basis — because the Solomon Amendment was never at any time not in force as a matter of law,” he said.

The irony here is fairly obvious. While there is no evidence that HLS’s nondiscrimination policy treated anyone “in a second-class way” — recruitment actually increased at several points in Kagan’s tenure — denying gays and lesbians to openly serve in the armed forces certainly does. That this didn’t strike Sessions as ironic is telling and something that could have used some extra attention during the hearing. After all, as the Senate prepares to vote for the defense authorization bill that would begin the process of repealing DADT, using the hearings as a public forum to push back against Sessions’ premise that keeping out gays from serving is smart national security policy could help keep some of those “poison amendments” at bay.

If someone does a word cloud of today’s opening statements in the Kagan hearing, the word “activism” will dominate the screen.  And this is nothing new.  Conservative senators figured out a long time ago that if they label anyone to the left of Samuel Alito a “judicial activist” then their more progressive colleagues will put their tail between their legs and cower.

Today, however, this tactic backfired.

Sure, Republicans brought their typical bluster to the hearing.  Sen. Jeff Sessions (R-AL) warned that Kagan may try to “change” the law’s meaning after she becomes a judge.  Sen. Jon Kyl (R-AZ) suggested that Kagan would “abandon impartiality and instead engage in results-oriented judging.”  These warnings, however, were largely empty.  Sessions, Kyl and their co-ideologues brought little in the way of evidence that Kagan wouldn’t follow the law.  In many cases, their attacks boiled down to nothing more than insinuations that there must be something wrong with General Kagan because she once heaped praise on her former boss, Justice Thurgood Marshall.

These attacks on Justice Marshall sparked what was easily the most eloquent moment of the hearing, Sen. Dick Durbin (D-IL) reminding Senate Republicans exactly who they were going after:

On at least three or four occasions I have been disappointed by my Republican colleagues warning us that you just might follow in the tradition of Justice Thurgood Marshall. . . . Let me say for the record, America is a better nation because of the tenacity, integrity and values of Thurgood Marshall. Some may dismiss Justice Marshall’s pioneering work on civil rights as an example of “empathy”—that somehow as a black man that had been a victim of discrimination, his feelings became part of his passionate life’s work—and I say “thank God.” The results which Justice Marshall dedicated his life to broke down barriers of racial discrimination that had haunted America for generations. . . . And I might also add that his most famous case, Brown v. Board of Education—if that is an activist mind at work, we should be grateful as a nation that he argued before the Supreme Court, based on discrimination in this society and changed America for the better.

Beyond this stirring rejection of conservative smears on Justice Marshall, the Committee’s progressives came armed with actual examples of right-wing judicial activism.  Progressives like Sens. Durbin, Chuck Schumer (D-NY), Amy Klobuchar (D-MN) and Al Franken (D-MN) each focused on cases where the Roberts Court placed a conservative agenda ahead of the law.  Citizens United and Ledbetter were both villians in today’s hearing, as were lesser known cases such as Gross v. FBL Financial Services, which stripped many older workers of their ability to challenge age discrimination, and Stoneridge v. Scientific-Atlanta, which left many investors powerless against securities fraud.

At the conclusion of today’s session, Kagan herself finally got a chance to speak.  Although her brief statement was heavy on biography and statements of gratitude, it also included an important indicator of what kind of justice she will be.  Yesterday, Sessions demanded that Kagan embrace “tentherism,” a radical theory of the Constitution which requires the Supreme Court to strike down health reform and other laws that conservatives don’t like.  Kagan’s statement firmly rejected this demand:

What I most took away from [my government service] was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.

Tomorrow, the senators get to grill Kagan, and the real drama begins.  In the meantime, however, Kagan and her allies appear to have finally found their voice on judicial issues.  They have learned to embrace democracy and decry the very real activism of the right.  Sessions and his ilk did not come off very well by comparison.

Andy Towle is reporting that like the Texas GOP, the Montana Republican Party has adopted a platform that would criminalize “homosexual acts“:

Homosexual Acts

We support the clear will of the people of Montana expressed by legislation to keep homosexual acts illegal.

The position is certainly troubling, but given the party’s strong emphasis on the Constitution, it’s also somewhat ironic. For instance, the platform uses some form of the word “constitutional” at least 10 times and even argues that constitutionality should be decided by the states. “We agree with Thomas Jefferson and James Madison, who stated that the U.S. Supreme Court does not have the sole authority to judge the constitutionality of federal laws. We hold with these men that the States not only have the right, but also the duty to nullify unconstitutional laws in order to protect their citizens,” the platform states.

But the Montana Supreme Court struck down the State’s sodomy law in 1997 and ruled that the law violates the State constitutional right to privacy. “Until this ruling, all homosexual relations were labeled deviate sexual conduct, punishable by a $50,000 fine and 10 years in prison. No one had been prosecuted under the law since it was enacted in 1973, but its existence placed gay men and lesbians at risk of prosecution. The high court was not persuaded by the State’s argument that the sodomy law was permissible because it prevented HIV infection and preserved public morality, largely because the law was enacted a decade before the first case of AIDS was reported in Montana.”

In 2003, the U.S. Supreme Court found in Lawrence v. Texas that Texas’ “Homosexual Conduct” law — a measure outlawing oral and anal sex — unconstitutional. The Court ruled that the Texas statute “making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.” “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons,” the Court ruled in a 6-3 ruling.

Montana voters banned marriage for same-sex couples in 2004.

In March, Virginia Attorney General Ken Cuccinelli asked the state’s colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation, arguing that schools have no legal authority to adopt such statements. “It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ’sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly,” he wrote. Colleges that have included such language in their policies should “take appropriate actions to bring their policies in conformance with the law and public policy of Virginia.”

On Friday, Cuccinelli appeared at Boys State, where a high-school student asked him, “How is that not a violation of the equal protection clause of the 14th Amendment?” Cuccinelli responded by suggesting that the amendment was not designed to protect gay people:

“State universities are not free to create any specially protected classes other than those dictated by the General Assembly,” Cuccinelli said. “Your question is, why is that not a violation of the 14th Amendment’s equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment,” he said.

“There are judges who think these things ‘evolve,’ is the word they like to use,” Cuccinelli said, but the correct approach to making such a change would be a constitutional amendment, he said.

It’s certainly true that the authors of the 14th amendment may not have “contemplated” protecting gay people from discrimination, but the Supreme Court has. Despite Cuccinelli’s rather arrogant attempts to dismiss legal precedent and impose his own vision of the Constitution on America, the Court has found that laws motivated solely by anti-gay animus are unconstitutional — and Cuccinelli is bound by that case whether “the people who wrote and voted for and passed the 14th Amendment” “contemplated” about gays or not.

In 1996′s Romer v. Evans the court ruled that a Colorado law called Amendment 2, which rescinded recently anti-discrimination measures, violated the 14th Amendment’s equal protection clause because animus towards a certain group of people does not constitute “a legitimate governmental purpose.”

“‘[I]f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’ Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973),” the Court wrote. “Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.”

Former Arkansas governor and current Fox News personality Mike Huckabee has doubled down on his use of the term “ick factor” to describe gay relationships and is now accusing the gay community of “hypocrisy” and “duplicity” for criticizing his use of the term. On Sunday, Huckabee reiterated his claim that gay activists coined the phrase and wondered why “it is okay if they talk about it, but if someone else talks about it, it is off balance”:

HUCKABEE: Well, that term actually comes from a gay magazine called The Edge in which the author, Joseph Erbentraut, interviewed Professor Martha Nussbaum from — one of Barack Obama’s colleagues, University of Chicago. She uses a term projected disgust. He, in the interview, coined this phrase. It’s in the article that he wrote in the interview with her. That phrase was not mine. It actually is a phrase that exists within the gay community. But somehow it’s OK if they talk about it, but if someone else talks about it, it’s off bounds.

And it’s interesting. The American Spectator — I thought Joseph Lawler this week did a wonderful analysis of the hypocrisy and the duplicity of those who want to, on one hand, push this issue, but then they really don’t want their own discussion to be brought into the public square. It’s a little bit disingenuous on their part to make it. It’s not the big issue for me. But if I’m asked about it, I try to be honest that I’m standing where most of the American public stands, and that is for traditional marriage of one man, one woman.

Watch it:

To state the obvious, gay people don’t use the “ick factor” to describe gay sex; they use it to describe people like Huckabee who maintain their anti-gay beliefs. As Nussbaum, who has publicly asked Huckabee to apologize for citing her work, has explained, “the view I develop, on the basis of recent psychological research, is that projective disgust has its origin in a discomfort with one’s own body and its messier animal aspects, including sexuality, and that, in a defense mechanism, disgust is then projected outward onto vulnerable groups who are characterized as hyperphysical and hypersexual.”

Huckabee’s claim that he doesn’t really care about gay issues and only offers his opinion when asked, is equally laughable. The former governor positioned himself as the social conservative during the 2008 presidential campaign and recently attacked Gov. Mitch Daniels (R-IN) for suggesting that the next president “might have to sideline controversial social issues to broker a ‘truce’ focusing on fiscal problems.” As Huckabee reiterated this Sunday, “I don’t want [Mitch Daniels] to back away from issues that will and have energized 40 to 50% of the Republican base.”

Judging from his refusal to apologize to Nussbaum, however, one could think that Huckabee is trying to energize that 40 to 50% for himself. “I end up leading a lot of the polls,” Huckabee said. “I’m the Republican that clearly at this point does better against Obama than any other Republican.” “I haven’t closed the door. I think that would be foolish on my part, especially when poll after poll shows that there is strong sentiment out there.”

Earlier this week I wondered what Mike Huckabee’s use of the “ick factor” in describing gay relationships and his subsequent clarification that he was merely using a reference developed by a gay academic, said about Huckabee and his particular aversion to gay people. Today, that academic Martha Nussbaum responded to Huckabee and helped clarify the whole thing:

The view I develop, on the basis of recent psychological research, is that projective disgust has its origin in a discomfort with one’s own body and its messier animal aspects, including sexuality, and that, in a defense mechanism, disgust is then projected outward onto vulnerable groups who are characterized as hyperphysical and hypersexual. In this way, the uncomfortable people displace their discomfort onto others, who are then targeted for various forms of social discrimination.

Thus the people to whom the term “projective disgust” applies are the insecure and emotionally stunted people who campaign against equal rights for gays and lesbians, not gays and lesbians themselves. Mr. Huckabee has gotten bad information about my work and has completely turned its meaning upside down, imputing to me a position (that gays and lesbians are disgusting) that I criticize as childish and morally deficient.

He owes me a public apology.

Maybe this helps explain some of his motivation, but more importantly, it deconstructs the notion that Huckabee’s opposition to gay rights rests in some rational theoretical or biblical disagreement. Many Christian Evangelicals, and Huckabee in particular, are very good at wrapping their ‘ick factor’ reactions in religious text to obscure the homophobia and add some extra legitimacy to their argument.

But moments like this unravel all that rationalization and remind us that Huckabee’s anti-gay views really have no place in a 21st century democratic policy debate.

In April, I observed how opponents of marriage equality were trying to use the courts to paint themselves as victims of violence and discrimination. In Washington state, Protect Marriage Washington (PMW) — a group opposing marriage equality — successfully put to a vote a law that granted “same-sex (and older opposite-sex) domestic partners virtually all of the same rights that straight married couples receive from the state.” The referendum failed “by a margin of 53% to 47% in November” but the group refused to comply with the state’s Public Records Act (PRA) and release the names of the petitioners. PMW claimed that publicizing the names of the petitioners violated their First Amendment rights and would have “subject the signatories to harassment, injury, or property damage.”

Today, in a vote of 8-1, the Supreme Court ruled that generally, disclosing the names of the individuals who sign referendum petition does not violate the First Amendment, but said that the plaintiffs may still ask the District Court to rule as to whether or not this specific act infringes their First Amendment. Generally, the states have a “sufficiently important’ governmental interest” in requiring disclosure, the Court found:

The State’s interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general. That interest is particularly strong with respect to efforts to root out fraud. But the State’s interest is not limited to combating fraud; it extends to ef-forts to ferret out invalid signatures caused not by fraud but by sim-ple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. The State’s interest also extends more generally to promoting transparency and accountability in the electoral process. [...]

According to plaintiffs, the objective of those seeking disclosure is not to prevent fraud, but to publicly identify signatories and broadcast their political views on the subject of the petition. Plaintiffs allege, for example, that several groups plan to post the petitions in searchable form on the Internet, and then encourage other citizens to seek out R–71 petition signers. That, plaintiffs argue, would subject them to threats,harassment, and reprisals.

The problem for plaintiffs is that their argument rests almost entirely on the specific harm that would attend the disclosure of information on the R–71 petition. But the question before the Court at this stage of the litigation is whether disclosure of referendum petitions in general violates the First Amendment. Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, plaintiffs’ broad challenge to the PRA must be rejected. [...]

We leave it to the lower courts to consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition, which is pend-ing before the District Court

This decision will make it harder for same sex marriage opponents to put LGBT rights to a vote, but what’s annoying is the Court’s tacit acceptance of the plantiff’s victimization argument. Here is how Chief Justice Roberts put it: “we have explained that those resisting disclosure can prevail under the First Amendment if they can show ‘a reasonable probability that the compelled disclosure [of personal information] will sub-jct them to threats, harassment, or reprisals from either Government officials or private parties.’” “The question before us, however, is not whether PRA disclosure violates the First Amendment with respect to those who signed the R–71 petition, or other particularly controversial petitions. The question instead is whether such disclosure in general violates the First Amendment rights of those who sign referendum petitions.” Ok, fair enough, but then Roberts goes on to describes this petition as different from a “typical” referendum:

The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R–71 petition, or on similarly controversial ones….But typical referendum petitions “concern tax policy, revenue, budget, or other state law issues.”…(stating that in recent years the State has received PRA requests for petitions supporting initiatives concerning limiting motor vehicle charges; government regulation of private property; energy resource use by certain electric utilities; long-term care services for the elderly and persons with disabilities; and state, county, and city revenue)…. Voters care about such issues, some quite deeply—but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.….Several other petitions in the State “have been subject to release in recent years,” plaintiffs tell us, Brief for Petitioners 50, but apparently that release has come without incident.

Same-sex marriage may be “controversial,” but there is actually very little evidence to suggest that releasing the names for this particular petition will be any different than those that have been released “without incident.” As Jeff Krehely notes in this piece, the LGBT community received much more harassment and intimidation than any of the opponents of marriage equality.

Marc Ambinder has some interesting observations about the military’s level of tolerance towards gay soldiers. I was arguing here that McChrystal’s aide should be fired for describing something as “gay,” but Ambinder suggests that this kind of language does not necessarily denote homophobia; it simply confirms the stereotype about military machismo.

Soldiers don’t care if their colleague is gay as long as he can shoot straight, but don’t expect him to abandon their locker room colloquialisms. He recalls this encounter:

One soldier — call him Ben — checks his e-mail. “Fuck,” he says. He opens his cell phone and makes a call. … A beat. … “Heeeey cock breath, how are you?” … “Yeah, that sucks.” “Yeah, why is he doing this to us again?” “No, he told me his partner was in town for the weekend and he really needed to see him.” … “Dude, why can’t he break way for one weekend!”

The conversation continues.

“Yeah, well, you know I’m just going to come over and [perform an obscene act involving testicles -- this IS The Atlantic, after all, and I already typed 'cock breath'].”

He hangs up.

What was that about, I asked?

“Oh, this guy we haven’t seen for a while is in town, a really good buddy, but his partner is also in town and he wants to see him. So we were just complaining that he wanted to see his partner rather than hang with us.”

“A lot of the outside discussion of Don’t Ask, Don’t Tell assumes that the integration of gays in the military will require the imposition of a new code of political correctness, one that dissolves the rough, often profane, often exaggeratedly anti-gay banter that serves as a gateway into conversation between buddies,” Ambidner writes. “But the two cultures can co-exist. It seems as if they already do, informally. People who are gay, and who are competent, and who have been tabbed, are accepted. And no one is toning down their language; discipline and morale aren’t suffering. It’s the lesson from South Park: there’s “gay,” and then there’s gay.”

There is probably a lot of truth in this, but I don’t see the harm in using the McChrystal saga as an opportunity to expose this kind of rhetoric to a healthy dose of public condemnation. The “two cultures can co-exist,” but it doesn’t mean they should, at least not for much longer.

A new study published today in Health Affairs examines how “inequalities in marriage laws and domestic partnership benefits” have implications on health care costs and the lives of LGBT Americans.

The analysis looks at access to health insurance for same sex couples in California and concludes that the federal income tax burden on dependent employer-sponsored coverage for same-sex couples (as well as other factors) results in lower levels of insurance for partnered gay and lesbian men as compared to their heterosexual counterparts:

Partnered gay men are less than half as likely (42 percent) as married heterosexual men to get employer-sponsored dependent coverage, and partnered lesbians have an even slimmer chance (28 percent) of getting dependent coverage compared to married heterosexual women….We found no strong evidence to suggest that employers in California are discriminating in providing health insurance to gay and lesbian workers. However, our results on the dependent coverage disadvantage in the partnered or married population provide strong evidence of compensation discrimination, in which employers setting coverage rules for dependents favor legally and heterosexually married employees.

Moreover, we suspect that the dependent disadvantage we observed is a consequence of not just compensation discrimination, but also the unequal federal tax burden that influences employees to enroll their dependent spouse or partner for health insurance at different rates. Another possible factor is that enrolling a same-sex partner or spouse as a dependent frequently requires that an employee “come out” as lesbian or gay if the employee has not done so already. Some employees are likely to find this a deterrent.

Indeed, the taxation of employer-provided domestic partner health benefits costs couples some $1,069 per year more in taxes than would a married employee with the same coverage. Employers also pay a total of $57 million per year in additional payroll taxes because of this unequal tax treatment.

The new health care law, will certainly increase the rate of insurance among LGBT Americans, but these kinds of inequalities may present serious impediments to achieving the goal of universal health coverage. If same sex partners who are not offered dependent coverage see the exchanges as an expensive option and opt to remain uninsured, this will certainly lead to increased health care costs down the road. The House version of the health care bill, of course, extended the ESI tax exclusion to domestic partnership benefits, but it was not included in the final version of the bill.

Former Arkansas governor and current Fox News personality Mike Huckabee has a habit of trying to substantiate and explain away his off-the-cuff homophobic remarks with clarification statements that blame the offended parties for misunderstanding his biblically-inspired Evangelical Christian beliefs. After he likened gay marriage to incest and drug use, Huckabee issued a statement insisting that the activist gay journalist took his remarks out of context and appeared on Rosie O’Donnell’s radio show to explain that he really “respects” gay people, but disagrees about what’s ‘ideal’ for the children.

He’s using the same tact to calm the fires surrounding his New Yorker profile, in which he calls gay relationships ‘ick[y]‘ and jokes that he would support gay marriage if he were forced into an affair with House Speaker Nancy Pelosi. This time, Huckabee defends himself by claiming that ‘ick actor’ was actually coined by a gay academic:

My use of the phrase ‘ick factor’ was as the established notion from within the Gay, Lesbian, Bi-sexual, Transgender (GLBT) community. It was not an indication of personal aversion, but rather a reference to an established phrase used mostly from same-sex marriage advocates and militants – not one I created.

Former colleague of then Professor Obama from the University of Chicago’s Law School, Dr. Martha Nussbaum, has often made reference to the ‘ick factor’ in her professional writings and is credited with applying the phrase to the GLBT community.

This phrase is not new. This phrase is not mine.

More over, the phrase ‘ick factor’ was widely used as early as the late 1990′s and was just the subject of an entire article written on April 12 of this year – by Joseph Erbentraut – and he even put ‘Ick Factor’ in the title.

I stand by my statement, and the misrepresentations of those who seek to dishonestly distort my views expose their duplicity and hypocrisy.

This is a rather bizarre defense, since Nussbaum uses the ‘ick factor’ to argue that opponents of gay political initiatives are driven by their “aversion to man-on-man anal sex” (that’s the ick), not any sophisticated legal or biblical theories of behavior. As Joseph Erbentraut explains in that April 12th article, “according to Nussbaum’s theory, those opposed to same-sex marriage, for example, maintain their beliefs largely due to an underlying, subconscious feeling of disgust at the thought of what defines “gay” as, well, gay – as well as lesbian as lesbian: What is done in the bedroom.”

So is Huckabee conceding the point? Because it certainly sounds like he’s saying — as TP intern Ryan McNeely said to me today — “an academic coined this term to describe bigots like me who can’t come up with any substantive arguments against LGBT rights, and that’s what I meant.’

Tomorrow, the Labor Department will issue a new ruling clarifying that the Family and Medical Leave Act (FMLA) allows “individuals who are the non-legal, non biological parents of their same-sex partner’s children” to take 12 weeks of unpaid leave to take care of a sick child. The move is one in a longer list of changes that will explicitly extend benefits to gays and lesbian Americans, but some gay activists have dismissed the advances as inadequate. The AP ran a story titled, ‘Obama inches toward gay agenda,’ describing the change as “[t]he little things that the Beltway crowd pays attention to.”

But as Pat Garofalo explains, the problem isn’t that guaranteed unpaid sick leave is inadequate because it’s not ENDA or DADT. It’s inadequate because it only really benefits those who can afford to take days off without being paid for them:

Lack of paid leave not only means sick employees coming in to work, but sick children being sent to school by parents who can’t afford to take time off to care for them. In fact, according to a new survey conducted by the National Opinion Research Center at the University of Chicago “nearly twice as many workers without paid sick days (24 percent) have sent a sick child to school or daycare than workers with paid sick days (14 percent).” 16 percent of those polled “say they have lost a job for taking time off from work to care for a sick child or family member, or to cope with their own illness.”

“This new survey shows conclusively that our nation is paying a high price for not allowing workers to earn paid sick days,” said Deborah Leff, president of the Public Welfare Foundation. “It demonstrates that not having paid sick days drives up the costs of health care and causes more people to go to work sick, creating public health risks for everyone.” In order to rectify this situation, Congress could pass the Healthy Families Act, which would guarantee seven paid sick days to all employees at firms with more than 15 employees, which could also be used to care for sick children or family members.

The real benefits of sick leave won’t be felt by everyone until this country joins every other industrialized nation and mandates paid sick leave. Unfortunately, by framing this exclusively as an LGBT equality issue, and viewing it through the prism of the broader LGBT ‘agenda,’ we avoid that important conversation.

Marc Ambinder has the most interesting bits from the now-infamous Rolling Stone article in which Gen. Stanley McChrystal claims that President Obama was unprepared for a meeting with military officials and takes jabs at National Security Adviser Jim Jones and Vice President Joe Biden. A reportedly furious Obama has summoned McChrystal back to Washington and is expected to reprimand McChrystal for insubordination.

And while the General’s comments about Obama are certainly inexcusable, his aide’s remarks about gay people are no less offensive. They should also receive the requisite public condemnation and the yet-to-be-identified aide should be promptly dismissed:

“Who’s he going to dinner with?” I ask one of his aides. “Some French minister,” the aide tells me. “It’s fucking gay.”

The comment underscores the existing locker-room style homophobia in the armed forces and explains why we won’t be seeing gay pride parades or a mass coming out once Don’t Ask, Don’t Tell is repealed. But these remarks are also as insubordinate as anything McChrystal said about Obama’s military strategy because they come in the midst of the administration’s efforts to repeal the policy, a goal Obama officially announced earlier this year at his State of the Union address.

If Obama is serious about building a more tolerant military culture he will demand that McChrystal publicly distance himself from these remarks, fire the offending aide, but also demand sharp assurances from Secretary of Defense Robert Gates and Joint Chief of Staff Chairman Mike Mullen that they will institute a non-discrimination policy once DADT is repealed. After all, a military that discriminates against gays is of course going to breed this kind of homophobic rhetoric.

One of the most abusive corporate practices embraced by the Supreme Court in recent decades is the use of “forced arbitration” clauses to kick injured parties out of court.  As the Wonk Room previously explained:

The scam works like this:  beginning in the 1980s, the Supreme Court rewrote federal law to endorse a practice known as “forced arbitration.”  Under this practice, companies ranging from nursing homes to cell phone companies to employers can refuse to do business with anyone who doesn’t give up their right to sue or be sued in a regular court presided over by a neutral judge.  Instead, consumers and employees are shunted into a privatized, corporate-run judicial system, which overwhelming favors corporate parties.

Until today, however, ordinary Americans had one safety valve they could invoke to escape from some of the most abusive arbitration clauses–they could challenge the arbitration agreement itself under various legal grounds sufficient to void any contract.  They might claim, for example, that they were defrauded into signing the arbiration agreement, or that the agreement is so one-sided in favor of the corporate party that it should be invalidated.  Such claims rarely worked, but they at least provided a small check on this abusive practice, and they at least allowed the claim to be considered by a real judge in a real court.

Today, in a 5-4 decision in Rent-a-Center v. Jackson, the Supreme Court largely closed this escape valve.  In a difficult-to-follow opinion by Justice Scalia, the Court holds that, with very rare exceptions, a party claiming that they were tricked, trapped or forced into an arbitration clause is no longer allowed to challenge that clause in court.  It’s as if BP said that all suits brought by victims of the Gulf oil disaster must present their complaints to a BP executive, and only that BP executive can decide whether or not they are entitled to damages.

Without access to a neutral and unbiased judge, victims of arbitration clauses are trapped into corporate-owned courts that virtually never rule in ordinary Americans’ favor.  The practical effect of today’s decision is that millions of Americans will be left with absolutely no recourse whatsoever when they are harassed at work, scammed by their credit card company, or even raped by co-workers.

Earlier this year, after being criticized for comparing gay marriage to incest and drug addiction, former Arkansas governor and current Fox News personality Mike Huckabee claimed that his statements were taken out of context and explained that he does not personally dislike gay people. “I have great respect for you,” Huckabee told Rosie O’Donnell in April. “I respect your choices. And I respect the choices that people make that aren’t my choices.”

Huckabee struck a similar note during a recent profile in the New Yorker. “I’ve had people who worked for me who are homosexuals,” he said. “And I don’t walk around thinking, Oh, I pity them so much. I accept them as who they are! It’s not like somehow their sin is so much worse than mine.”

But in that same piece, Huckabee also suggested that he is repulsed by gay relationships:

“I do believe that God created male and female and intended for marriage to be the relationship of the two opposite sexes,” Huckabee said in a recent New Yorker profile. “Male and female are biologically compatible to have a relationship. We can get into the ick factor, but the fact is two men in a relationship, two women in a relationship, biologically, that doesn’t work the same.” [...]

Huckabee does deviate from Party orthodoxy on some issues. But what makes him even less predictable as a politician is his sense of humor. At times, he seems unable to resist the force of his own funniness. I joked with him once that I would write about his (fictitious) affair with Nancy Pelosi. He e-mailed back, “The only thing worse than a torrid affair with sweet, sweet Nancy would be a torrid affair with Helen Thomas. If those were my only options, I’d probably be FOR same-sex marriage!”

In his conversation with O’Donnell, however, Huckabee stressed that his opinions were informed by the bible. “I’m an Evangelical Christian, so I have a strong biblical world view, and that’s where I come. It’s not a matter of me having any kind of animosity towards anybody or any group and what people do individually, is to me, their business,” he said. “I’m not going to judge you or judge anybody else because I know there are so many loving people who are in same-sex relationships and they have adopted children and they love those kids. I’m not going to judge them. I’m simply not going there.”

Yesterday, during an appearance on Fox News Sunday, Defense Secretary Robert Gates reiterated that the Pentagon’s study of Don’t Ask, Don’t Tell will examine how not whether to repeal the policy and cautioned that President Obama is willing to veto the Defense Authorization bill, despite the repeal provision:

GATES: Our review is about how to implement this and what are the obstacles, what are the problems, what are the challenges, what are the issues. How do we mitigate the negative consequences if we identify negative consequences? What are the questions we have to address? Those are the things this review is all about. And I feel it’s very important for the military to have the opportunity to weigh in, to register their views on these issues, and to give us help on how to do this smart should the legislation pass. [...]

WALLACE: So you think that they veto the bill even with repeal of “don’t ask, don’t tell?”

GATES: I think so.

Watch it:

With McCain’s veto threat now gone, the only remaining obstacle to securing the process of repeal is the continued funding for the C-17 cargo plane and the F-35 second engine right, which are part of the House legislation, and potential poison-pill amendments during floor debate in the Senate. Actual repeal of the policy won’t occur until sometime next year and even that seems fraught with uncertainty. As Lez Get Real points out, “while Gates is telling the media circuit they are looking at the ‘how‘ of repeal, that is not matching up with all of his statements, nor the theme of the survey itself. Reliable sources indicate the tenor of the survey deals with the impact of repeal on the rank and file rather than how to best implement repeal.”

Moreover, if “the President has made his decision,” why did Gates initially resist repeal legislation that accommodated the study? After all, if his goal is to minimize uncertainty or anxiety within the ranks, why wouldn’t he support the most certain and least cumbersome legislative maneuver — one that triggers repeal only after the Pentagon has examined the policy. Insisting on finishing a study that lays a groundwork for repealing the ban and then rolling the dice in January with a new Congress less supportive of ending the ban, would have put the policy, the military, and its service members in a state of flux.

Anyway, what’s done is done, but I would venture that Gates’ triangulation on the issue would do more to confuse the troops about openly gay members than any “swift” repeal. The Senate is expected to take-up the defense measure, with the delayed repeal provision, in the coming weeks and hopes to pass the bill before leaving for the July 4th recess.

I’m still going through the closing arguments from yesterday’s Proposition 8 hearings, but I’m struck by how weak the other side’s case is. It’s truly empty of any reasoned argument or sound evidence. The proponents of the Proposition were relying on conventional wisdom and ‘the way marriages has always been’ arguments without explaining why it should stay that way or what harm would come to society if it changed. [Read the official transcripts: HERE]

The plaintiffs took a different track. Theodore Olson, the attorney for the gay and lesbian couples who filed the suit, looked back at the Supreme Court’s 14 or so decisions about marriage and found that the Supreme Court has said that marriage is the most important relation in life and questioned why that gays and lesbians were being denied that right without due process:

OLSON: It is the foundation of society. It is essential to the orderly pursuit of happiness. It’s a right of privacy older than the bill of rights and older than our political parties. One of the liberties protected by the due process clause, a right of intimacy to the degree of being sacred. And the liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That’s the Lawrence vs. Texas case.

Olson goes on to quote from the testimony of Professor Nancy Cott, a marriage historian, who explained that the institution has been viewed this way by American slaves in the 1860s:

COTT: When slaves were emancipated they flocked to get married. And this was not trivial to them by any means. They saw the ability to marry legally to replace the informal unions in which they formed families and had children, many of them, to replace those informal unions with legal valid marriage in which the states in which they lived would presumably protect their vows to each other.

In fact, one quote that his tore I can’t answer have drawn out from the record because many of these ex slaves were illiterate of course but one quotation that was the title of an article a historian wrote it was said by an ex slave who had also been a union soldier and he declared the marriage covenant is the foundation of all our rights, meaning it was the most every day exhibit of the fact that he was a free person. He could say I do to his partner.”

The proponents of Prop. 8 dismissed these claims and insisted that marriage is about channeling naturally procreative sexual conduct “into stable and enduring unions” in order to “minimize what I would call irresponsible procreation.” Asked to substantiate the claim, Cooper replied, “your Honor, you don’t have to have evidence for this from these authorities” and suggested that “you need only go back to your chambers, your Honor, and pull down any dictionary, pull down any book that discusses marriage and you will find this procreative purpose at its heart wherever you go.”

Cooper was no less successful in demonstrating what harm same-sex marriage would pose to society or the institution of marriage; any negative effects were only speculative, he argued. “This could be profound. It could — it could portend some social consequences that would not be good ones,” he said. “And, Your Honor, that reality, the reality that I didn’t know, because no one can know, Professor Cott doesn’t know, Blankenhorn agreed, it’s impossible to be completely sure about a prediction of future events. There has never been anyone who knows what tomorrow will bring.” This fear of the unknown, Cooper insisted, represented a rational basis for preventing same-sex marriage. “But if there’s a legitimate and rational basis to be concerned about that, it couldn’t be more rational for the people of California to say, ‘We aren’t going to run that risk, however we assess it.’ There’s a risk. And we are going to wait. We want to see what happens in Massachusetts.’ We want to see what happens right here and elsewhere.’”

The Washington Times is reporting that Sen. John McCain (R-AZ) is backing away from his threat to filibuster the Defense Authorization bill over a provision that begins the process of repealing Don’t Ask, Don’t Tell:

There will be no filibuster of the pending defense budget bill that contains a repeal of the military’s gay ban — at least not from Sen. John McCain of Arizona, who is leading the fight to preserve the ban.

Contrary to a smattering of press reports, the top Republican on the Senate Armed Services Committee is not trying to find the votes to block the bill, which may reach the floor next week. A filibuster takes 60 votes to override.

“Sen. McCain is not filibustering the bill,” his spokeswoman Brooke Buchanan told special correspondent Rowan Scarborough.

Asked whether Mr. McCain will offer an amendment to strike the repeal from the bill, Ms. Buchanan said, “I think it’s a bit early. Sen. McCain is still deciding on the amendments he plans to introduce.”

The turnaround is certainly welcome (McCain suggested as recently as Saturday that he would still try to filibuster the measure), but it doesn’t guarantee that the compromise will pass this year. McCain is expected to introduce an amendment requiring all of the Joint Chiefs of Staff to sign off on the Pentagon’s review of the policy and it’s unclear that Democrats, who have already swallowed the study, would have to votes to defeat the measure. Under the current agreement, only President Obama, Defense Secretary Robert Gates, and Joint Chiefs of Staff Chairman Mike Mullen are required to certify that a repeal would not undermine military readiness and cohesion.

In what could be another hurdle to repeal, Gates “repeated his (and President Barack Obama’s) opposition to “wasteful” defense spending such as the continuation of the C-17 production line and money for the joint strike fighter alternate engine.” “It would be a very serious mistake to believe the president would accept these unneeded programs simply because the authorization or appropriations legislation includes other provisions important to him and to this administration,” he said yesterday during testimony before the Senate Appropriations Committee.