Attorney General Holder yesterday announced that the Obama administration would no longer defend the so-called Defence of Marriage act in Federal Court.
This is great news. But it's a little complicated - so I've been reading up on the matter trying to figure out exactly what the Justice Department's new policy now means, and what the implications will be. Lawyers who read this blog (I know you're out there!) please feel free to chime in with further info as I'm just figuring this out as I go along.
The big news here is that the Obama administration believes gays and lesbians DO meet the standard of requiring heightened scrutiny under the equal protection clause of the constitution. Previous court cases have been raised in jurisdications where the courts had previously ruled that this standard should not be applied to sexual minorities - but no such precedent exists in the 2nd Circuit Court, where two new cases are to be tried. Nor has the Supreme Court ever ruled on this specific question.
The Obama administration therefore had no precendent to be bound or guided by in this instance, and the Justice Department therefore had to fashion its legal reasoning from scratch.
Under those circumstances, the position that they take is that section 3 of the Defence of Marriage act - the portion that specifically prevents the Federal government from recognising same sex marriage that are legal within a particular state - is unconstitutional. They will not defend it. But that doesn't mean that it is no longer law.
Until either 1) Congress repeals the law or 2) a Federal court rules the law unconstitutional, the provision will stay on the books.
So there's no immediate effect to this decision. But the government's position does make it far more likely that the law will be struck down by the courts, because it is difficult for anyone other than the federal government to claim that they have legal standing to defend the law.
This is a narrow, legalistic decision on the part of the Obama Justice Department, but the thinking that underlies it is boldly clear:
“It’s a lawyer’s decision based on a careful consideration of the law,” said Paul Smith, head of the Supreme Court and appellate practice at Jenner & Block, and counsel with Gay & Lesbian Advocates & Defenders in a DOMA challenge now pending in the U.S. Court of Appeals for the 1st Circuit.
“There was only one right answer,” he said. “When you examine the law and which groups need heightened protection under the equal protection clause, you realize that sexual orientation is one of those kinds of discrimination that is suspect. There really was no way for them to defend Section 3 of DOMA because the law doesn’t serve any purpose other than to stigmatize persons.”
If a court eventually does decide that Section 3 is unconstitutional, as the Obama administration believes, that would greatly complicate the work of the US Government because suddenly we would have a patchwork system in place for federal benefits. Gay couples would have immigration rights in Massachusetts, but not in Ohio. They could have social security survivor benefits in Iowa, but not in Kansas.
But I say - bring on the mess. Because the more people are forced to confront the reality of gay men and woman and their "unreasonable demands" to be treated just like everybody else, the more hollow and pointless the arguments of the opponents seem.
As the Senate has been considering repeal of the appalling Clinton-era Don't Ask Don't tell rule this week, I've been giving a lot of thought to how far the country has come in the last decade and a half on our attitudes towards gay rights. And it caused me to reflect on the fact that, although I personally feel very strongly about both the importance of repealling DADT and also offering access to marriage for gay men and women, I think of the two issues a bit differently.
Don't Ask Don't Tell is, as I see it, the most straightforward and indefensible example of outright legal bigotry still in place in our system. I can't think of any other group of individuals who are straightforwardly banned from participating in any part of our civil society purely on the basis of who they are. Can you? What if we told Jewish soldiers that they could serve with their Christian comrades, but only if they never aknowledged their faith? Of if we told Hispanics that they could serve only if they could "pass" for anglo? What if we told married heterosexuals that they could serve only if they never told anyone of their marriage, or did anything that might allow their fellow soldiers to understand that they were married? That is quite literally exactly what we are asking gay men and women to do - and all for the priviledge of fighting and dying to defend... us. It's appalling, it's morally reprehensible, it unduly traumatises good men and women who want to serve, it harms our national security by preventing highly qualified people signing up, and there is broad agreement from both the top military leaders and the rank and file soldiers themselves that repealling it would do no meaningful harm to our military capacity. In fact, of the 70% of currently serving military who said that they believed they already were serving with gay or lesbian colleagues, 92% of them said that it had had no effect on the performance of their unit.
Everyone who continues to defend this policy should hang their heads in shame, as they no longer have even a fig leaf of a reason to do so.
But gay marriage is something different. Although I fully accept and agree with the contention that it is also bigoted to exclude gays from this institution, I can understand the rationale of the people who say that this to some extent change the nature of the institution. Marriage WOULD change if gays and lebians were allowed to fully participate in it. Just as it changed when it turned from a financial arrangement in which the bride was offered up as collateral for a bargain between two men. Just as it changed when women gained legal rights to property within marriage.
I support the innovation of allowing gay men and women to participate in the institution of secular civil marriage because I believe that this would not only be of great benefit to the couples who would now be allowed to marry, but also because (as with heterosexual marriage) encouraging two people to make a lifelong commitment of mutual responsibility and promise solemnly before the state and their loved ones to honour and care for each other is of enormous benefit to society as a whole.
Very large numbers of gay households are raising children - I believe it's better for children to have two parents than one. Sometimes, in gay couples, one partner will find themself in financial difficulty - I believe it's better for the community if that person is financially supported by their partner than through the welfare system if this is possible. Sometimes, in gay couples, one partner will become sick - I believe it's better for them and everyone if that person is not only loved, cared for and supported by their partner but also, yes, has access to their partner's health insurance so that they avoid having to potentially end up in medical bankrupcy. Sometimes in gay relationships, one partner come from another countries - I think it's better that they are able to stay in America rather than have to flee the country to be somewhere that their relationship can be aknowledged by the immigration authorities. Sometimes in gay relationships, people fight. I think on the whole, if they still love each other, that there be some reasonable expectation that they make an effort to work things out.
I support marriage for gay people, in other words, for the exact same reasons that I support it for straight people. And because I think it would be a change to the institution of marriage that would improve it.
When I wrote my post the other day saying that we have to keep pressing our leaders on gay rights isssues, this is the kind of thing I was hoping for - a statement issued today by Senator Chris Dodd:
I believe that effective leaders must be able and willing to grow and change over their service. I certainly have during mine – and so has the world. Thirty-five years ago, who could have imagined that we’d have an African-American President of the United States?
My young daughters are growing up in a different reality than I did. Our family knows many same-sex couples – our neighbors in Connecticut, members of my staff, parents of their schoolmates. Some are now married because the Connecticut Supreme Court and our state legislature have made same-sex marriage legal in our state.
But to my daughters, these couples are married simply because they love each other and want to build a life together. That’s what we’ve taught them. The things that make those families different from their own pale in comparison to the commitments that bind those couples together.
And, really, that’s what marriage should be. It’s about rights and responsibilities and, most of all, love.
I believe that, when my daughters grow up, barriers to marriage equality for same-sex couples will seem as archaic, and as unfair, as the laws we once had against inter-racial marriage.
And I want them to know that, even if he was a little late, their dad came down on the right side of history.
Good for him. It's always hard to admit that you have changed your mind, with the implicit suggestion that you were wrong before. There are good men and women - Democrats AND Republicans, who may be open to having thier minds changed on this issue, if we politely keep telling them the truth as we see it.
By the way - Senator Dodd is facing a tough re-election fight next year. Now might be a good time to send him some money to help keep his voice in the Senate. Hint, hint.
There has been much kerfuffle lately from unhappy gay rights activists who would like to see more and better activity from the Obama administration on their issues.
And fair enough, really. Gay men and women have made huge advances over the past two decades in cultural/social terms, in terms of local and state legal rights and in other countries (including here in the UK, where they benefit from a civil partnership law that includes immigration rights for foreign partners). But progress at the level of the US federal government has been epically slow. Bill Clinton famously crashed and burned badly in his efforts, very early in his first term, to allow gays to serve openly in the military - and instituted the Don't Ask Don't Tell "cure" that may be worse than the disease. Later on, facing massive Republican backlash and the loss of Democratic congressional control, he signed the so-called Defence of Marriage Act barring any recognition of same state-endorsed sex partnerships at a federal or interstate level. Then came the W. years, about which the less said the better.
So folks are antsy. Edgy. Angry, even, and feel like their rights are well past due.
In fact, what am I doing with the "they" - I'M antsy, edgy, angry. Even us straight folks can get pretty invested in civil rights for our gay friends and family, and frankly I'm well past ready for some action - this isn't an area where I feel like we can afford to compromise over the long term.
[Two incidents come to mind, as a sidebar: 2) I remember listening to a fellow DA activist talk at length about his brilliant strategy to win over Evangelical Christians, and at some point he said Democrats needed to get over our "obsession" with gay rights if we want to win. I told him if we sell out the gays I was leaving the party. There's such a thing as right and wrong.
2) During one of our monthly speakeasies there was a heated discussion underway about gay marriage, and one of our longstanding activists got very agitated saying she was angry that we were even discussing this "when there's a war on and we should be talking about important things." I told her, "what we're talking about is important to me, it's important to a lot of people in this room, and the civil rights of US citizens matters.")
So, yes, I would like to see Obama get moving on this. Not INSTEAD of what he's already doing - health care matters. A lot. Ending the war matters. Fixing the economy matters. But yes, so do the civil rights of gay men and women for whom they have been a long time comin'.
BUT - it's worth having a look a little bit more closely at Obama's real record so far on gay rights and what he says his agenda is here.
For starters, I think it's worth making a clear distinction between 1) advances in gay rights that are still on hold but where Obama is on record as in support and 2) areas where he has taken action that seems to contradict his promises.
Gays in the Military
Obama has said consistently that he supports ending the Don't ask Don't tell policy. In May, he sent this letter to discharged service member Sandy Tsao, promising to fulfil his commitment.
On the other hand, the policy remains in effect at this point, and ALSO in May Obama's military discharged a gay Arab linguist - clearly a vital combat personnel if ever there was one.
The reason Obama's people say that he hasn't yet moved is their belief that changing the policy would require congressional action. So, is there any plan to push for congressional action? Well, not so much.
It seems that Congress thinks it should be done by Presidential order.
Stalemate. Frustration. It's too early yet to declare this an intentional inaction by the White House - but frankly they could do more.
Federal Benefits
On the other hand, the administration HAS taken action on another area of gay rights within the President's discretion - providing some benefits to same sex partners of federal workers.
Do watch the President's very interesting statement on this:
Now, these benefits are not as broad as they might have been - the Defence of Marriage Act prohibits Obama from offering certain key benefits, most notably health care.
But this IS a step. It's something real that a gay couple has today that they didn't have yesterday. Advances in federal recognition of gay couples aren't so common that we can afford to ignore them when they do happen.
All the more so since this builds on an earlier announcement via the State Department that granted special rights to same sex partners of foreign service workers - critical for these workers, whose spouses are often shunted around the world relying only on the good will of the US government to keep them together.
That's also something very real - and in both cases, I think, these policies also make for good government: making federal employment a more attractive option for the best and the brightest among the gay community by starting to keep pace with benefits already offered by major private sector employers.
The fact that these most concreate advances from the administration are aimed at federal workers certainly is partly because this is where Obama has the most direct control. It may also have something to do with the fact that the most powerful openly gay person to serve in this (or any) White House is John Berry, head of the Office of Personnel and Management.
My verdict: A good start in this area.
Marriage
And this is where all the action is - after what was for many a heartbreaking loss for the movement last November when California's proposition 8 passed, banninggay marriage in California, same sex marriage has taken a surprising leap forward with legalisation in Iowa and Maine, recognition of out of state marriages in Washington DC, and marriage just on the brink of legality in New York.
The spread of legal gay marriage means that gay men and women are now chafing against the restrictions of the (Clinton signed) Defense of Marriage more strongly than ever before as many couples are now legally married in their home state but unable to have their marriages recognised should they move out of state.
Obama has stated his support for overturning DOMA - and he repeated it again in the video linked above:
That's why I stand by my long-standing commitment to work with Congress to repeal the so-called Defense of Marriage Act. It's discriminatory, it interferes with States' rights, and it's time we overturned it.
No one could argue that those are weasel words.
And yet...
And yet, much of the anger in the LGBT community has precisely centered around doubts about the President's seriousness on DOMA. And many of those doubts were given expression over what some consider a needlessly insulting DEFENCE of DOMA in a brief from Obama's own Justice Department. Although the administration's position was that they were legally obligated to defend the current law, many gay (and straight) advcates for marriage equality felt that the specifics of the brief went too far in making those arguments. John Aravosis, of America Blog, is especially angry.
But, Representative Barney Frank - the first gay man ever elected to Congress and still the most pugnacious, cutting, brillant, crusading congressman around - says that on reading the brief it's actually... not that bad.
“Now that I have read the brief, I believe that the administration made a conscientious and largely successful effort to avoid inappropriate rhetoric. There are some cases where I wish they had been more explicit in disavowing their view that certain arguments were correct, and to make it clear that they were talking not about their own views of these issues, but rather what was appropriate in a constitutional case with a rational basis standard – which is the one that now prevails in the federal courts, although I think it should be upgraded.”
"And I will work with the Obama administration as they have promised to do to enact laws protecting LGBT people from hate crimes, from job discrimination, and from discrimination in the military. I will also be critical when I think inappropriate language is used. But after rereading this brief, I do not think that the Obama administration should be subject to harsh criticism in this instance.”
OK. Interesting. So who to believe?
For what it's worth, I thought this blogger had the most useful analysis of this situation that I have read so far - one of those (not so rare) cases when it can be useful to hear from a lawyer.
Verdict: Unclear. Obama has clearly stated his desire to see DOMA overturned. It's not clear whether he had any choice other than to allow his Justice Department to write that brief.
What you believe about this incident - and about all of Obama's positions on gay rights probably depends on where you think his heart lies.
Is he a reluctant advocate for gay rights, lured on by the necessity of cozying up to this strong Democratic constituency?
Or his he an instinctive advocate - someone who deep down inside would like to be bolder on these issues but who is determined that it is more important to be sure of victory than to move too soon?
None of us can see inside anyone else's heart. And Our President is a pretty cool cat - he's not prone to displays of gushing emotion, so you probaby wouldn't catch him welling up over gay weddings. But I've been watching him pretty closely for a long time now, and I've never seen anything to suggest he is anything other than sincere in his desire not just to talk a good game for gay men and women, but to really deliver for them. He's a pragmatic operator, not a crusader.
In Summary: I believe Obama has already made some important strides for gay rights - and I think he has a lot more work to do. Fortunately, he's got more time to make it happen.
I think we need to keep pressing Obama on these issues. Not because we don't trust or believe him, but because it will actually be a lot easier (pragmatically) for him to get these things done if he can point to an undeniable push from those of us who care about this issue. We should do it politely, calmly, but firmly.
UPDATE: And, in timely fashion (clearly following my blog closely for hints of important issues) apparently the Obama administration has now scheduled a series of meetings with Gay rights groups next week. Good.
In case you haven't been following this story, recently Miss California - AKA Carrie Prejean - caused a bit of a ruckus with a confused but ultimately disapproving answer on the question of Gay Marriage during the Miss America pageant.
Thence followed ongoing argumentation, in which gay blogger Perez Hilton (who asked the question in the first place) seemed to go to war with the anti-Marriage community (confusingly named the National Organization for Marriage - but... they want to stop people from getting married. Does not compute) - and there was much hullabaloo.
Prejean has now agreed to appear in an anti-gay marriage commercial for the NOM folks, despite the fact that, as best I can figure, the women doesn't actually have an opinion on gay marriage. I mean, she'd like people to have rights like hospital visitation and stuff, and she thinks it's great that we live in a country where people can have a choice and all between regular marriage and "opposite marriage"(umm... we do?) and she really couldn't say whether or not she supports civil unions because, "I don't have the answers to everything, you know, in the world out there."
This woman doesn't have offensive opinions about marriage - she doesn't HAVE an opinion. So there's not a great deal of point in discussing her lack of any informed view, really is there? I mean this sort of thing isn't really her area of expertise is it?
But why not spend just a little bit of time - maybe a fraction of the time spend obesesing over her non-opinion on the marriage issue - and talk for just a second about something that very muchIS this woman's field of endeavor: the pageant itself.
Here's the thing: I'm not offended by the idea of beauty contests - that would be silly. I mean, what's the point of pretending that we aren't being judged all the time on our looks. Young women get ahead all the time because they happen to be pretty or - worse - fail to get ahead because they happen not to be. So if they want to put that on my TV screen, fine; it's just another thing for me to not watch. In the age of The Batchelor, it's by no means the most sickening display of shamelessness on our screens.
But the thing that DOES offend me about beauty pageants is precisely the thing that everyone always points to as evidence for their social value - the scholarships. Winners of these pageants aren't given a hefty lump sum of cash that they can blow on fast cars and cosmetic surgery. They're given the money in the form of scholarships to attend university.
What on earth is the crying social need to make sure that by all means really pretty girls don't have to pay their own way through school? Don't you think maybe there's a stringy haired, glassy-eyed budding scientist out there who hasn't been spending her time perfecting The Look because she's been huddled over a bunsen burner that might deserve a scholarship slightly more on the merits? You want to reward young women for being pretty - fine. And I'm sure many if not all of the young women who win these competitions are lovely and hard working people who will succeed academically. But the ability to walk in a swimsuit and heels, while an impressive talent that I do not myself posess, is not per se evidence of academic merit.
But, you know - I'm glad I come from a country where you can chose to participate in degrading social rituals if you want to. But - no offense to anyone - I don't think you deserve an academic leg up because of them. That's just the way I was raised.
As you may know, the Supreme Court of the State of California recently voted to award full marriage rights to its gay citizens. This was a measure that was passed twice by the California state legislation, but was vetoed by Governor Schwarzenegger on the grounds that he felt it was a matter for the courts to decide. Now that they've done so, marriages have begun to take place across the state.
So the anti-gay movement has now been trying to pass a state constitutional amendment to make these marriages illegal again. Barack Obama has just issued a statement opposing this effort.
He says:
I am proud to join with and support the LGBT community in an effort to set our nation on a course that recognizes LGBT Americans with full equality under the law... that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states.
For too long, issues of LGBT rights have been exploited by those seeking to divide us. It's time to move beyond polarization and live up to our founding promise of equality by treating all our citizens with dignity and respect. This is no less than a core issue about who we are as Democrats and as Americans.
Right on! If civil liberties and respect for families are to mean anything at all, they surely need to be offered to ALL our citizens. The right to marry the person of your chosing is among the most precious and personal rights society affords its citizens, and I am proud that my candidate will not bow to nonsensical fearmongering. This is a pro-family position.
Those who want to overturn this ruling actually seek not only to prevent future gay unions but also to dissolve those that have already been formed. If two people chose to unite with each other, and stand up before the law to form a permanent union, the state should not take that away from them.
