The US Military's Don't Ask Don't Tell policy - under which gay men and women were allowed to serve, as long as they were duplicitous and secretive about their personal lives, has finally come to an official end today.
I blogged on the Huffington Post and article in which I interviewed a gay former US Airman (and friend) who was discharged a decade ago under the policy.
"We walked down to the Colonel's office. I knocked. I had to salute, and then he read me my discharge orders. I didn't say anything at all."
Woltkamp's Colonel told him that he had the right to an attorney, and that they would help him find one. But he was informed that he had to sign away all other rights to representation. He was presented then and there with a paper to sign.
"I don't know why, I just signed the waiver. I thought I had to..."
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.
Today, President Obama signed the death warrant for the last remaining piece of outright bigotry legally required in America. Not just gays and lesbians, but all Americans are a little better off for this. Because we can now be defended by the best and the brightes no matter who they are, and because our country comes a little closer to living it's own ideals.
Yesterday, by an amazing 64-33 majority, the US Senate finally voted to end the Don't Ask Don't Tell policy. The President has promised to sign it next week, and will then promptly begin work on a policy to roll out the implementation.
Although that implementation must wait at least 60 days following delivery of the President's plan to begin, I think it is safe to say that last night's vote marked the beginning of the end to the last bastion of legal, open discrimination within the US Military. Let's be clear - this will not be the first time that gay men and women will serve in the US military. It will just be the first time they can do so without dishonoring and torturing themselves by lying to their friends and colleagues.
More than 90% of service members who believe that they are currently serving with gays and lesbians have stated that it had no impact on their morale, unit cohesion or ability to perform. Evidence from other countries which have long allowed gays to serve suggest that the transition towards open service is a gigantic non-event. Just as gays work and live openly alongside straights in every other walk of life, they will now be able to do so as members of the US armed forces.
In the end, the relatively large number of Republicans who voted for the repeal of DADT is a tribute to the integrity of those Senators. I am truly and unequivocally grateful to them. In the current Republican party, the tea party has proven their ability to defeat in primaries even well funded and popular Republicans who make any effort to work with Democrats in support of the country's best interest. Each of them had to be, therefore, very much aware that to some degree they were gambling with their jobs. So, let's take a moment to give them their due.
Thank you, Senator Collins of Maine - an especially strong advocate, who worked closely with Joe Lieberman to ensure that a standalone bill was put on the floor after DADT was initially defeated.
Thank you, Senator Murkowski of Alaska - who has already been a victim of Tea Party extremism, losing her primary and thus running as a write-in candidate last November. Thank you for not running scared from the bullies who tried to kick you down.
Thank you, Senator Brown of Massachusetts - who I was (you may recall) a little annoyed to see winning Ted Kennedy's old seat in the early part of this year, but who has been among the most moderate Republicans in the Senate from that point. A classic New England Republican, in fact. Like... my whole family. I wasn't sure they were still out there.
It's worth in particular noting the vote of Senator Burr - an old style Southern Conservative who NOBODY expected to vote for this bill. In fact, Senatory Collins, who was working to reach out to Republicans in this effort, didn't even bother to meet with him as she assumed he would be intractable. So why did he eventually vote for it?
Well, he says he did have concerns about the timing of making this change, but in the end:
“A majority of Americans have grown up at a time that they don’t think exclusion is the right thing for the United States to do,” Burr said, also noting, “It is not accepted practice anywhere else in our society and it only makes sense.”
That's... bizarrely reasonable. There is indeed no other part of American society where it is currently acceptable to discriminate against people solely because of who they are. We allow (in fact, sometimes we require) convicted felons to serve in the military. There is literally nothing that you can do, short of being physically unfit, that is so terrible it makes you ineligible for service. Except loving someone of the same sex.
While we are tipping out hat to erstwhile enemies, I probably need to take this moment to do the painful duty of singling out former Democrat Joe Lieberman for a special Medal of Excellence in pushing this bill relentlessly, determinedly and with unshakeable conviction. It was Lieberman who, when the first version of the bill failed to gain cloture immediately girded up to get a new version expedited through committee. It was Lieberman who made sure the bill had Republican support, liaised with Nancy Pelosi about the timing of passage through the House, worked with Harry Reid to get it on the Senate calendar for a new vote and, in a final moment poignant moment, broke his longstanding and deeply held religious practice not to work on the Sabbath to shepherd the bill through the Senate on a Saturday vote. He decided that the opportunity to live the principles of his faith was more important, in this one case, than the duty to live up to the letter of it. I salute him for it.
I'm not sorry I called him a schmuck - because sometimes he acts like one. But today he was a mensch.
And finally, I want to once again give a round of applause to Harry Reid. The Leader has a lot on his plate lately, and frankly it would have been easy for him to find an excuse to not bring DADT back up for a vote - the packed schedule, the forthcoming Christmas break, the urgency of getting so much other vital legislation through (and here's hoping that we can find the couple more votes we still need to ensure passage of the vital START treaty...). But Reid made it clear he would keep the current Senate working until the voted on this bill - and that pressure undoubtedly move things along.
And President Obama... well, Obama has been the leader I thought he would be. He passed this bill in a stle that will be hard to reverse, easy to support, and will change America for the better and for good. By proceeding with an extensive study of the military's views, by bringing the top leadership of the military into the fold - including Bush appointee Secretary Gates and Admiral Mullen - he made clear that this would be done with the suppor of and for the benefit of our services. And finally, by taking the painful decision not to rush this process but to dot every I and cross every T - even if it meant that, heart-breakingly, good men and women still had to suffer under this policy in the meantime....
He created change that wasn't as quick as we would have liked. Or as radical as we might imagine. But that we can absolutely, 100% believe in.
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.
Congressman Barney Frank has stated that the repeal (at long last) of the military's Don't Ask Don't Tell policy will be included in next year's Military Authorization Act.
This is excellent news. Frank is not known for beating around the bush, so when he says something he believes it.
But the bit that made me really believe this would happen was these lovely words:
Anecdotally, Frank recalled an incident earlier this year when Defense secretary Robert Gates made a statement to reporters suggesting that repeal was still an open question.
“There was a point where Gates said, ‘If we repeal don’t ask, don’t tell,’ and the next day he said, 'When we repeal don’t ask, don’t tell,’” said Frank. “That’s because Rahm called him up. The White House has been consistently committed.”
Every soldier who serves with honor deserve the right to live his or her life with honor - asking our men and women in uniform to sneak around and hide the most basic facts about themselves is just... tawdry. It's not worthy of the dignity that should come with service.
Here's Obama at a White House reception for the LGBT community last week - the first time any President has given a white house address on LGBT issues, let alone an address in the White House to that audience.
I loved the deadpan understatement of this bit:
"We have made progress and we will make more. And I want you to know that I expect and hope to be judged not by words, not by promises I've made, but by the promises that my administration keeps... We've been in office six months now. I suspect that by the time this administration is over, I think you guys will have pretty good feelings about the Obama administration."
Obviously, there are some noteworthy policy statements in this - his confirmation that he has instructed the Secretary of Defence to begin working on a plan implement the repeal of DADT. A repeated promise to overturn DOMA and to abolish the ban on HIV positive individuals entering the country.
But what I was struck by more than anything else was the body language. In recent weeks we've been hearing a lot about the tensions between the Obama White House and the Gay community, but in this speech even the preternaturally self assured President seemed really relaxed - comfortable, at home, and like he is genuinely in the company of some of his favorite people. Of course, to a large extent this is true - as he reminded us in the series of shout outs at the beginning, folks like campaigner Steve Hildebrand and John Berry at the Office of Personnel are quite literally and not just politically "old friends".
But notice the casual banter, for example at about 4 minutes 30 seconds in when he cracks up at someone's cell phone ring tone.
He seems here, dare I say it, a bit like how George W. Bush seemed when he spent time with the pro-life folks. There's a sense of, "These are my people."
Or maybe, to be cynical, he's adopting that attitude precisely because of the reported tensions from the community - a way of cooling them off. But if it were merely a performance, it would be masterful.
Either way, I believe him when he promises action. Any day now would be good.
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.
