Sex and Politics American Style

Sex and politics perhaps combine together the two oldest professions, if not avocations. Maybe it started with Marc Anthony and Cleopatra. But whatever the origins, the two continue to be perhaps not so strange bedfellows.

Anthony Weiner’s revelations about his continued sexting after resigning from Congress and now while running for mayor of New York again raise the question about whether a candidate or a politician’s sexual behavior is anyone’s business?  The simple answer is that there is not one. Public opinion is shifting on the topic and it is just not clear where the lines should be drawn between public/private behavior and how the sexual conduct of public officials should be judged when determining fitness for office. But nonetheless, we can learn something about sex and politics in America.

Sex and Politics in the World of Ozzie and Harriet Nelson
    Sex in American politics has followed changing public opinion and pop culture views and depictions on the subject. Go back to the 1950's and early 1960's and the sexual image of American politicians was sterile.  Politicians were of mostly male, but they were depicted as sexless beings. This reflected an Ozzie and Harriet Nelson, Lucy and Ricky, and Dick Van Dyke world where married couples on television slept in separate beds and where in reality unmarried couples were not supposed to have sex before marriage. Sex outside of marriage, “deviant sexual activity,” and all forms of homosexuality were illegal. Even talk of sex inside of marriage was dirty. Sex was taboo on television and the media would not have dared ever to discuss the sexual behavior of public officials, except in terms of scandal.

JFK and the Sexual Revolution
    President Kennedy tested the media. We now know of his infidelity, of his liaisons with Marilyn Monroe, and of stories of women being flown to the White House or Camp David. Yet the media never covered it, never discussed it, just simply ignored it. JFK was a handsome, sexy guy but he was sexless–except for the two children he had.

Then the sixties happened. The 60's Sexual Revolution changed so much–at least initially for men. Many of the old sexual don'ts collapsed.  One change was that the media could now talk about sex and politics, except it was all scandal.

In 1974 Congressman and Chair of the House Ways and Means Committee Wilbur Mills was stopped by police for drunk driving.  In the car with him was Fannie Fox, an Argentine stripper who fled the scene.  The story was well covered but despite it he was reelected.   After the election he appeared on stage at a strip joint with Ms. Fox’s husband while she performed.  He resigned.

In 1980 Congressman John Jenrette confessed to having sex with his wife Rita behind a pillar on the steps of the Capitol.  This story made headlines, but it was not the cause of his downfall.  He was convicted of taking bribes in the Abscam sting.  Few people remember Abscam, everyone remembers  the sex and his wife who eventually posed for Playboy.

1n 1984 Gary Hart's presidential campaign was derailed when news of him having an affair with Donna Rice emerged.   For years he had denied stories of infidelity and in fact dared reporters during his presidential campaign to follow him, claiming he had nothing to hide.  Yet he was photographed with Ms. Rice on his lap, with him wearing a shirt declaring him to be a member of the "Monkey Business Crew!"

In 1990 Minnesotan Republican Jon Grunseth ran as a family values candidate for governor and was forced to abandon his candidacy on October 28–just days before the election–when stories emerged that he and several of his middle-aged male friends had gone skinny dipping with Grunseth’s daughter and three of her teenage friends. There was also allegations of an extramarital affair.  The scandal had such a backlash on the media that it brought down Rudy Perpich and Rudy Boschwitz and led to the election of Arnie Carlson and Paul Wellstone.

Coming out of the Closet
    No one was GLBT in the world of Harriet and Ozzie Nelson.  It was either illegal or abnormal.  Politicians who were gay had no political future.  But as public attitudes toward homosexuality changed, so did view on gay sex and politics.

In the mid 1980's stories leaked that the then not-out-of-the-closet Massachusetts Congressman Barney Frank had hired a gay prostitute Steve Gobie.  As the story evolved Frank and Gobie became close and Barney hired Steve to work for him, eventually firing him after learning that Gobie was hooking. The House of Representatives attempted to censure and expel Frank for this, with the effort led by Larry Craig, a Republican Congressman and later Senator most famous for being arrested in 2007 in a Minneapolis airport bathroom on charges of soliciting gay sex.  Frank was re-elected several times, Craig served out his term and opted not to run for office again.

Bill Clinton
    Then of course there is Bill Clinton.  He was impeached but not convicted for lying about having sex with Monica Lewinsky. We learned of this after Republicans and Special Prosecutor Kenneth Starr spent $44 million taxpayer dollars to find out that the Clinton's did nothing illegal with Whitewater (a financial deal gone bad when Clinton was governor). What we got was a $44 million price tag to find out that Clinton had sex with an intern in the Whit House. The media and the Republicans were all over the story as well as accounts of affairs with Gennifer Flowers and harassment of Paula Jones. But Clinton seemed to portend a sea-change in sex and politics.  He left office more popular than ever while in office and the public seems to have discounted Clinton’s private life as irrelevant to a judgment regarding his political career.

Sex and Politics in New York (City) and Elsewhere
    Eliot Spitzer resigns as governor because stories emerge that he is seeing prostitutes while he was attorney general (and while prosecuting prostitution) and then still as governor.  John Edwards is forever tainted because of his non-marital child and affair he had while still married to his wife who was dying of cancer. Anthony Weiner is forced out of Congress because of his sexting. And then former governor Mark Sanford is forced out of office because of an affair with a soul mate in Argentina (not Fannie Foxe again), but a few years later is re-elected to Congress.

Conclusions
    So what do we learn for all of this sullied discussion of sex and politics?  First, public attitudes towards sex and politicians have changed... somewhat.  In 1965 it would not have been possible to discuss presidents or elected officials as sexual beings at all, or except in terms of scandal.  It would not have been possible to make the 1995 movie The American President – with Michael Douglas and Annette Bening – telling the story of a widowed president and a lobbyist dating.  The president is sexual but still there are dark overtones and rumors of conflict of interest as Bening’s character is lobbying for legislation and there are hints she is exchanging sex for political favors.

Second, Clinton and now Sanford suggests that in some situations the public will discount personal sexual behavior.  They will do so if the candidate does not make their own personal character an issue or put the issue in play.  By that, candidates such as Grunseth or Craig who run as family values conservative candidates have a harder time putting the issue behind them than candidates like Clinton who do not try to make claims about personal virtue.

Third, coming clean seems to be important. Clinton was at his lowest when he lied about the scandal.  Candidates who are honest about their affairs seem to recover. Often the cover up is worse than the sex. If Eliot Spitzer wins election as NYC Controller this will attest to that. Weiner’s downfall will be that he continued to lie about his persisted sexting (BTW: Look for a great headline in a NYC newspaper when he abandons his mayoral race “Weiner Pulls Out”).

Fourth, being gay no longer seems to carry the inherent stigma it once did.  However, with same-sex marriage becoming legal, it will be interesting to see how infidelity among gay and lesbian politicians is covered.

Fifth, so far all of the major sex scandals have involved male politicians involved with women.  The one exception in Minnesota was state senator Amy Koch.  How this might change in the future with more women as elected leaders is yet to be seen. Conversely, the role of politician’s wives so far has generally been that of a Tammy Wynette “Stand by Your Man” stance. Think of Hilary not leaving Bill and Silda standing next to Eliot.  Now some wonder why Huma Abedin is there for Weiner? Many are asking why is she still with this guy, what does he have on her? The notable exception was Jenny Sanford–she refused to stand by Mark at his press conference and she divorced him.

Finally, what we don’t know about sex and politics is more about voters and more research on how sexual scandals affect voting decisions would be interesting.  In a 1991 humorous essay I wrote for the Texas Observer I found evidence that more sexually active voters were less likely to vote.  This raises all types of great questions Anthony Weiner–those most likely to vote for him may be too busy having sex on election day.

Zimmerman, Food Stamps, and Immigration: It’s All About Race

It’s all about race.  It always has been in America and it appears that it continues to be the case.  Three events in the news this week, the House cuts food stamps and refuses to act on immigration, along with the acquittal of George Zimmerman (Trayvon Martin), demonstrate that we have not achieved the race-neutral or color-blind society that so many believe we have achieved.

W.E.B. Du Bois wrote in 1903  that "the problem of the Twentieth Century is the problem of the color-line."  He was prophetic.  America’s struggle with race and the legacy would dominate the 20th century.  First it would be the legacy of separate but equal and the squashing of voting rights with Jim Crow.  Then it was Rosa Parks, Martin Luther King, Jr., and the civil rights movement that produced the 1964 Civil Rights, Act, the 1965 Voting rights Act, and affirmative action.   It looked like progress had been made and as 2001 arrived some argued that this would be the century of a post-racial America.  At least that seemed to be the prognosis with the election of Barack Obama in 2008.

Yet the illusion of a post-racial America was always greater than the reality.  Despite progress on many fronts, the color-line and race remain a powerful reality in America even before the events of the last week.  Schools as segregated today as they were in 1954 when the Supreme Court issued its Brown v Board of Education decision that supposedly ended separate but equal.  Residential segregation, especially in the north, remains high.  Racial profiling by police, which was a major issue until 9/11, persists, and the racial disparities in terms of educational outcomes, incarceration, wealth, and income, persist.  We continue to live in what political scientist Andrew Hacker described as Two Nations: Black and White,  Separate, Hostile, and Unequal.

The backlash against civil rights was manifest in the war against drugs.  It also has played out in opposition to the Motor Vote Act, claims of voter fraud, and efforts to institute voter ID.  Hostility to welfare in the 1990s was all about race, especially with the mythic welfare queen symbolized as an African-American woman.  And arguments that affirmative action was reverse discrimination and  unnecessary because we had entered a new era where race did not matter failed to appreciate how even with affirmative action people of color–especially African Americans–were still under-represented in colleges and universities across the country. 

Even Obama’s victories in 2008 and 2012 pointed to the continuing legacy of race.  Yes he won, but the racial polarization of voting was significant with 98% of African-Americans voting for him and a majority of whites in 2012 for Romney.  In 2008 there is evidence were he not Black Obama would have won even bigger than he did.  Obama won despite his race.

And then the Supreme Court weighed in.  In June it issued two opinions, one on affirmative action, one on voting rights, that vastly limited the ability of schools to diversity and the federal government to police states that seek to impede minority political rights.  As I suggested in an earlier column, we are witnessing the end of the second civil rights era and the coming of the second great disenfranchisement.

And now the events of the last week.  First, the Republican House makes it clear that it will not move on immigration and it passed a farm bill without authorizing food stamps.  Both moves are simply base politics.  The current base of the Republican party is old, white, and conservative.  It is hostile to taxes, immigration, and just doesn’t get it on race.  Opposition to immigration and food stamps will probably not cost Republican House members as votes in 2014, and instead it will help them.  With so few swing districts in America, few Republicans will fear voter retribution if they voted the way they did.  Instead, they stave off conservative challenges and shore up their political base.

Of course, such a strategy is of a short time horizon.  American demographics are changing and this vote does nothing to help the GOP reach out to Hispanics and other racial minorities who will become the new majority in America.  Even many in the GOP recognized the need to move on race, as evidenced by the 2013 Republican study entitled The Growth and Opportunity Project.  Yet getting a party to change to appeal to a new base when the old base remains hostile is nearly impossible.  The decision on immigration is simply another way that the GOP continues to shoot themselves in the foot.

The vote on food stamps is fascinating.  First, it is a story about welfare.  In passing the farm bill, the subsidies that have been approved overwhelming go not to the family farmer but to big agribusinesses.  Big corporate farms–generally owned by whites–again get their welfare.  Yet food stamps–welfare for the poor and middle class–get nothing.  The GOP continue to think that food stamps are only for the undeserving poor–the 47%ers–who are mainly racial minorities, but the reality is more whites, including suburbanites after the 2008 crash, get food stamps.  Again, such a vote endears the GOP to their base but does little to reach out to the real America who struggles.

Finally, is anyone really surprised by the Zimmerman acquittal? It was almost like an anti OJ Simpson trial.  Race mattered in both but in different ways.  With OJ, it was the rarity of a Black man acquitted  in the murder of a white woman.  But here it was the acquittal of a person accused of killing an African-American.  Granted that Zimmerman was part Hispanic, but the case was really painted as a white-black one. Five white women and one woman of color were on the jury.  It was a jury where race was an issue to start with.  Studies suggest that it is hard for a lone juror to resist others if there is not another person supporting her.  Six-person juries are less likely to find a second dissenter.  My point is that if race was a factor among the jury and its composition, a six-person jury made it more likely that a single person of color would find it hard to change the deliberations dynamics than were there a larger jury with more people of color on it.  Second, the stand your ground law in Florida made it hard to convict.  The law significantly favors  the use of guns to defend.  Third, the defense effectively used race throughout the trial, playing on fears of out of control black teenagers and crime to scare an all-female jury.  It was just predictable. 

Du Bois’ color-line has not really vanished.  It continues to be about race.

Same-Sex Marriage and the Next DOMA Battle

The battle for state recognition of same-sex marriage has just begun.  While many might think that the Supreme Court decision in United States v. Windsor striking down section 3 of the Defense of Marriage Act (DOMA) represents the last judicial word on the issue, that is far from the case.  Instead, that decision has changed the legal debate and strategy regarding same-sex marriage, and it still involves DOMA.

            Imagine this likely scenario.  A same-sex couple is legally married in Minnesota and they decide to relocate to Florida, a state that does not presently recognize such marriages.  This couple then asks Florida to recognize their marriage with the intent of enjoying the state’s hundreds of statutory benefits regarding adoption, devising of property, or taxes that are available to married couples.  Is the State of Florida required to recognize this marriage?  There are powerful legal arguments to say yes, and they were only strengthened after the Windsor decision.

            Consider first what the Windsor case was about.  It involved a challenge to section 3 of DOMA. Passed in 1996, section 3 defined marriage at the federal level as exclusively a relationship between one man and one woman.  The practical effect was that all federal laws referring to marriage would use this definition.  This meant that any state which did recognize a same-sex marriage would not have such a union recognized under federal law.  In Windsor, at issue was a surviving member of legally married same-sex couple in Minnesota.  She had inherited property from her partner and sought to claim federal tax benefits as a couple and not as a single person. However, DOMA prevented that and she sued, claiming she was entitled to pay a lower tax as a surviving spouse.  Windsor challenged section 3 of DOMA as unconstitutional and the Supreme Court agreed.

            Writing for the Court, Justice Kennedy argued first that marriage remained a state issue.  By that, states generally had the authority under the Tenth Amendment to determine who could marry.  DOMA interfered with that state prerogative. What it did according to the Court was to single out a specific group for discrimination or special burden that state law sought to protect.  Such a singling out of a group–here same-sex married couples–was both a violation of the Fifth Amendment’s Equal Protection clause.

            This decision thus settled the issue of the constitutionality of section 3 of DOMA and federal recognition of state approved same-sex marriages.  Yet it did not address an equally important topic–Section 2 of DOMA and state recognition of same-sex marriages performed in other states. 

            Many have forgotten why DOMA was originally passed.  In the early 1990s a series of court decisions in Hawaii moved that state close to the recognition of same-sex marriage in that state.  Fearing that such a decision would then require other states to recognize these Hawaiian marriages, Congress enacted DOMA.  But the real heart of DOMA was not section 3 but section 3.  Section 2  declared: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”  In effect, no state would have to recognize a same-sex marriage as valid in their state even if that couple was legally married in another state.  Thus, Florida would not have to recognize  as valid a Minnesota same-sex marriage in their state, even if that couple relocated to their state to live.

            Even before DOMA many claimed that section 2 was unconstitutional, The argument was that it violated Article IV, section one of the Constitution–otherwise known as the Full Faith and Credit clause.  That clause states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Under the Articles of Confederation, the thirteen original states often refused to recognize legal acts from other states, as each often discriminated against one another.   In the 1942 in Williams v. North Carolina the Supreme Court declared the purpose of the Full Faith and Credit Clause was “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.”

            What does this clause practically mean?  The most obvious issue is marriage.  Couples legally married in one state do not have to get remarried in another state when they move into it.  Divorce proceedings and many other court judgments and laws have to be recognized too by other states.  This is where the challenge to section 2 of DOMA comes in.

            While Congress has authority to define how such full faith shall be proved, it is not clear that  it has the authority to limit the scope of the Full Faith and Credit clause.  It is doubtful that Congress could pass a law permitting states to refuse to recognize opposite-sex marriages performed in other states, or even to allow them to refuse to recognize racially-mixed or mixed-faith marriages.  The same principle applies to same-sex marriages.  While Justice Kennedy in Windsor did say that marriage was a state issue, the Full Faith and Credit clause can be read as an abrogation of that state prerogative in some instances.  Moreover, given the language of Windsor where the Court assailed the federal government under Section 3 for singling out same-sex couples for special burdens after a state sought to protect them, one can apply similar logic under the Fourteenth Amendment Equal Protection clause.  One can argue that states cannot single out same-sex couples for special burdens and treat them differently from opposite-sex couples.

            This argument becomes even stronger if one brings in three other constitutional rights or clause.  First, there is the right to interstate travel.  In Shapiro v. Thompson that individuals have a right to interstate travel and that individual states may not interfere with such a right.  Such a right the Court ruled is inherent in the Constitution although they chose to use the Due Process and Equal Protection clauses to support their claim.  Then in Saenz v. Roe the Supreme Court used the Privileges and Immunities clause of the  Fourteenth Amendment to again assert a right to interstate travel.  In both cases at issue were state laws imposing durational residency requirements  upon relocating individuals who wished to collect public assistance welfare benefits.  In both cases the Supreme Court invalidated such laws as burdening these rights.  Finally, one could also argue that the Commerce clause in implicated here.  Refusal by a state to recognize a same-sex marriage performed in another state creates an impediment to interstate commerce. It places a burden on same-sex couples wishing to relocate to another state for business or employment.

            So now think about the legal status of section 2 of DOMA when it comes to a legally married same-sex couple from Minnesota moving to Florida.  One can argue first that Congress lacked the authority under the Full Faith and Credit clause to enact section 2.  States are then precluded under this clause, as well under the Equal Protection clause from  refusing to recognize same-sex marriages performed elsewhere. These constitutional clauses, Supreme Court interpretation of them, and the reasoning in Windsor are enough to argue that states are not free to single out same-sex marriages from legal recognition if performed in another state.  This is perhaps the next legal battleground on this issue.