Yesterday, President Obama hosted members of GLBT rights organizations at the White House. Formally, the meeting commemorated "LGBT Pride Month." Underneath the surface, however, the meeting served a different purpose. Obama convened the gathering in order to alleviate growing anxiety among GLBT organizations concerning his commitment to gay rights.
Although Obama promised to seek the repeal of the Defense of Marriage Act (DOMA) and Don't Ask, Don't Tell, the military continues to discharge personnel based solely on sexual orientation, and the Department of Justice recently filed a brief that defends the constitutionality of DOMA. The government's defense of DOMA led to stinging criticism of President Obama by many prominent GLBT rights advocates.
[Note: A previous blog entry on Dissenting Justice analyzes the political rifts the brief caused. This essay and a subsequent one examine the legal content of the brief.]
DOMA 101
DOMA contains two major provisions. One section of the statute declares that states do not have to recognize same-sex marriages that other states consider legitimate. This part of the law purports to authorize states not to extend "full faith and credit" to same-sex marriages.
The other important section of DOMA adopts a heterosexual definition of "marriage" for federal programs. This part of the law denies same-sex couples any benefit (or obligation) that federal law extends to married couples, such as health care, joint-tax filing, etc.
The Brief
The government's brief argues that DOMA is constitutional in all respects. Surprisingly, the full faith and credit arguments have received the heaviest criticism -- even though this particular part of the statute is not really the most damaging to same-sex married couples. In the absence of DOMA, states that disapprove of same-sex marriage would probably still decline to recognize these marriages, which would lead to the same type of litigation that DOMA has already caused. Furthermore, it is likely that the Supreme Court -- not Congress -- will probably have the final say on what the Full Faith and Credit Clause requires of states in this setting.
The denial of federal benefits, however, is solely within the control of the federal government. According to the President's own previous statements, DOMA denies over 1,100 benefits to same-sex married couples. Even if individual states recognize same-sex marriages, DOMA still makes those marriages meaningless for purposes of federal law.
Standard Full Faith and Credit Analysis or Equating Same-Sex Marriage and Incest?
The Constitution requires states to give "Full Faith and Credit. . .to the public Acts, Records, and judicial Proceedings of every other State. . . ." Based largely on the Full Faith and Credit Clause, states traditionally have recognized marriages performed in other states.
The government's principal argument in defense of DOMA's full faith and credit provision contends that courts have allowed states to deny recognition of marriages from other states that violate their own "public policy." The relevance of the public policy exception to same-sex marriage has received an enormous amount of attention from legal scholars. Furthermore, the government's discussion of the exception represents a fairly routine way of analyzing the legal issues presented by the Full Faith and Credit Clause.
Despite its unexceptional nature, this section of the brief has inflamed many GLBT advocates because the Department of Justice cites to a series of cases that apply the public policy exception and allow states to deny recognition of certain marriages. These cases include an incestuous marriage between an uncle and his niece, a marriage involving a 16-year-old, and a marriage between first cousins.
John Aravosis at Americablog wrote a very critical analysis of this part of the brief which makes the following observations: "Holy cow. Obama invoked incest and people marrying children. . . .Then in the next paragraph, they argue that the incest and child rape cases therefore make DOMA constitutional. . . ."
These arguments, however, severely misrepresent the content of the brief. Certainly, the precedent deal with incest and age requirements for marriage, but these cases merely support the proposition that states can object to marriages that contravene their own public policy. They do not, however, turn on the general morality or desirability of the particular marriages, which were in fact legal in the "home" states. Instead, the cases conclude that where a public policy conflict exists, states can deny recognition without violating the Constitution. Finally, the brief never equates same-sex marriage with incest or "child rape" -- neither explicitly or implicitly.
These cases do not necessarily justify the nonrecognition of same-sex marriage by states, but they also do not substantiate the deepest public criticism of the brief by GLBT advocates -- that the Department of Justice brief compares same-sex marriage to incest and child rape. This argument is simply wrong.
Other scholars who advocate GLBT rights have taken a similar view. Nan Hunter, a law professor at Georgetown University Law Center and a longterm proponent of GLBT rights, describes the arguments by Aravosis and many other critics as "irresponsible attacks." Also, Chris Geidner, author of Law Dork, wrote an extensive essay that responds to the distortions Aravosis made and continues to make.
I enjoy reading Americablog, and have previously cited to it. I abhor and have criticized the homophobic linkage of same-sex marriage with incest and pedophilia. I was also one of the first bloggers to question Obama's commitment to GLBT rights, which I continue to do. Nevertheless, the DOMA brief, though awful in many respects, does not equate same-sex marriage with incest or child molestation.
Concluding Thoughts
Although many pro-GLBT advocates have unfairly criticized the Obama administration's defense of DOMA's full faith and credit provision, they are generally correct in condemning the government's argument that DOMA does not deny equal protection to same-sex married couples. In fact, if courts accept the equal protection analysis in the DOMA brief, this would represent a major setback for GLBT rights and would have negative implications beyond DOMA.
Accordingly, the Obama administration's equal protection position absolutely conflicts with his campaign promises -- although during yesterday's meeting, he downplayed any inherent conflict between his defense of DOMA and his "commitment to reversing this law." Obama's words, however, do not stand up to honest scrutiny. Alas, in the interest of space and time, I must defer my analysis of the equal protection arguments to another day. Stay tuned.
Showing posts with label brief. Show all posts
Showing posts with label brief. Show all posts
Tuesday, June 30, 2009
Monday, June 22, 2009
Dissenting Justice on the DOMA Brief, Part I: The Politics
Nearly two weeks have passed since the Department of Justice filed a controversial brief in Smelt v. United States, a case challenging the constitutionality of the Defense of Marriage Act. GLBT advocates responded to the brief with outrage. John Aravosis at Americablog, for example, wrote a stinging essay denouncing the brief as "despicable" and "gratuitously homophobic." Furthermore, several GLBT Democrats subsequently pulled out of a fundraiser for the DNC sponsored by gay and lesbian rights organizations.
Some of the outcry regarding the brief is absolutely justifiable. Some of the critiques, however, go too far. In many ways, the brief poses a greater problem politically than legally. This essay is Part I of a two-part series analyzing the DOMA brief. While this article examines the political issues the brief raises, a second essay will analyze the legal claims DOJ asserts in the brief.
Politics of the Brief
Politically, the submission of the brief will further erode trust for the Obama administration among GLBT individuals. During the Democratic Primaries and in the general election campaign, President Obama expressed passionate disagreement with DOMA and vowed to seek its repeal. Yet, in the first case requiring his administration to comment on the constitutionality of DOMA, Obama has defended it as a rational law that does not violate any constitutional norms. Accordingly, the brief represents a betrayal by Obama on his pledge of support for GLBT rights and regarding his specific opposition to DOMA.
A closer examination of Obama's record, however, demonstrates that Obama has not always held a consistent position on DOMA -- a fact Dissenting Justice first examined in March 2009. For example, when Obama ran for the Senate in 2004, he wrote a letter to the Windy City Times (a Chicago GLBT newspaper), which states that he opposed DOMA when it was enacted in 1996. In 2003, however, Obama completed a candidates' questionnaire and stated that he did not support the repeal of DOMA. In 2007, a campaign spokesperson for Obama explained that he changed his mind after "gay friends" told him how hurtful DOMA was to them. Of course, Obama could not have intellectually opposed DOMA in 1996, supported it in 2003, and suddenly opposed it again in 2004. Instead, his conflicting stances are likely motivated purely by political calculations.
Today, Obama is engaging the exact same song and dance regarding DOMA. Although he maintains that he supports the repeal of this "hurtful" law, his administration has defended it as legally rational legislation. This position is patently absurd.
Early Warning?
Earlier this year, someone in the Obama administration edited language on WhiteHouse.Gov, which lists the President's position on civil rights issues, including GLBT rights. The older version of the website stated that Obama desired and would advocate the repeal of DOMA and Don't Ask, Don't Tell. The edited language, however, omitted references to DOMA altogether and stated that Obama wanted to change "Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security."
Several pro-GLBT blogs (including Dissenting Justice) responded to the edited text, after which the White House said that the changes only reflect routine editing and updating. Subsequently, the White House reinstated language indicating Obama's support for the repeal of DADT. The website, however, remained silent on DOMA. It does contain, however, language stating that Obama supports "full civil unions and federal rights for LGBT couples."
Although the White House response to the altered text apparently satisfied other bloggers, Dissenting Justice argued that: "It is difficult to believe that changes in WhiteHouse.Gov language concerning [DOMA and DADT] do not indicate the position the government will soon take in . . . lawsuits" over these policies. Although the DOJ brief is arguably consistent with the vague language on WhiteHouse.Gov concerning "civil unions" and "federal benefits," it is absolutely inconsistent with a preference to repeal the law. Apparently, the edits likely reflected the Obama administration's substantive position on these issues, as Dissenting Justice initially predicted.
In addition to his inconsistent stances on DOMA, Obama has stated that he does not support same-sex marriage but that he opposes efforts to prohibit it (such as California's Proposition 8). Obama says that he is a "fierce" advocate of gay rights, but he has not taken any steps to ensure the passage of legislation advancing GLBT equality, and he has not intervened on behalf of two Asian Americans who face discharge from the military because they "came out" of the closet. And even prior to taking office, Obama created tension among GLBT people when he invited antigay minister Rick Warren to speak at his inauguration.
Reap What You Sow?
Prior to the Warren controversy, GLBT activists gave Obama -- and all of the other Democratic presidential contenders -- a free pass to take conservative positions on GLBT issues. Many political commentators believe that President Bush won reelection in 2004 by drawing evangelicals to the polls with his support of a constitutional amendment banning same-sex marriage. Accordingly, many GLBT rights advocates refused to criticize Democrats because they feared throwing the election to Senator McCain. Perhaps in their effort to protect Democratic candidates these activists convinced themselves (if they did not already believe) that Democrats would actually support GLBT rights once elected. This is an unsophisticated position. True equality is not a political handout. It comes from activism, litigation, and engagement, rather than blind faith.
In many ways, GLBT groups are experiencing the fallout from their generous trust in Democratic politicians -- a stance that prior generations of gay rights advocates refused to take (up until possibly the election of Bill Clinton). Recent events should convince liberals to retire their wrongheaded discourse that embraces "post-racial," "post-feminist," and "post-identity" politics. So long as identity-based inequality exists, identity politics will remain relevant.
Forthcoming: A Legal Analysis of the DOMA Brief
Some of the outcry regarding the brief is absolutely justifiable. Some of the critiques, however, go too far. In many ways, the brief poses a greater problem politically than legally. This essay is Part I of a two-part series analyzing the DOMA brief. While this article examines the political issues the brief raises, a second essay will analyze the legal claims DOJ asserts in the brief.
Politics of the Brief
Politically, the submission of the brief will further erode trust for the Obama administration among GLBT individuals. During the Democratic Primaries and in the general election campaign, President Obama expressed passionate disagreement with DOMA and vowed to seek its repeal. Yet, in the first case requiring his administration to comment on the constitutionality of DOMA, Obama has defended it as a rational law that does not violate any constitutional norms. Accordingly, the brief represents a betrayal by Obama on his pledge of support for GLBT rights and regarding his specific opposition to DOMA.
A closer examination of Obama's record, however, demonstrates that Obama has not always held a consistent position on DOMA -- a fact Dissenting Justice first examined in March 2009. For example, when Obama ran for the Senate in 2004, he wrote a letter to the Windy City Times (a Chicago GLBT newspaper), which states that he opposed DOMA when it was enacted in 1996. In 2003, however, Obama completed a candidates' questionnaire and stated that he did not support the repeal of DOMA. In 2007, a campaign spokesperson for Obama explained that he changed his mind after "gay friends" told him how hurtful DOMA was to them. Of course, Obama could not have intellectually opposed DOMA in 1996, supported it in 2003, and suddenly opposed it again in 2004. Instead, his conflicting stances are likely motivated purely by political calculations.
Today, Obama is engaging the exact same song and dance regarding DOMA. Although he maintains that he supports the repeal of this "hurtful" law, his administration has defended it as legally rational legislation. This position is patently absurd.
Early Warning?
Earlier this year, someone in the Obama administration edited language on WhiteHouse.Gov, which lists the President's position on civil rights issues, including GLBT rights. The older version of the website stated that Obama desired and would advocate the repeal of DOMA and Don't Ask, Don't Tell. The edited language, however, omitted references to DOMA altogether and stated that Obama wanted to change "Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security."
Several pro-GLBT blogs (including Dissenting Justice) responded to the edited text, after which the White House said that the changes only reflect routine editing and updating. Subsequently, the White House reinstated language indicating Obama's support for the repeal of DADT. The website, however, remained silent on DOMA. It does contain, however, language stating that Obama supports "full civil unions and federal rights for LGBT couples."
Although the White House response to the altered text apparently satisfied other bloggers, Dissenting Justice argued that: "It is difficult to believe that changes in WhiteHouse.Gov language concerning [DOMA and DADT] do not indicate the position the government will soon take in . . . lawsuits" over these policies. Although the DOJ brief is arguably consistent with the vague language on WhiteHouse.Gov concerning "civil unions" and "federal benefits," it is absolutely inconsistent with a preference to repeal the law. Apparently, the edits likely reflected the Obama administration's substantive position on these issues, as Dissenting Justice initially predicted.
In addition to his inconsistent stances on DOMA, Obama has stated that he does not support same-sex marriage but that he opposes efforts to prohibit it (such as California's Proposition 8). Obama says that he is a "fierce" advocate of gay rights, but he has not taken any steps to ensure the passage of legislation advancing GLBT equality, and he has not intervened on behalf of two Asian Americans who face discharge from the military because they "came out" of the closet. And even prior to taking office, Obama created tension among GLBT people when he invited antigay minister Rick Warren to speak at his inauguration.
Reap What You Sow?
Prior to the Warren controversy, GLBT activists gave Obama -- and all of the other Democratic presidential contenders -- a free pass to take conservative positions on GLBT issues. Many political commentators believe that President Bush won reelection in 2004 by drawing evangelicals to the polls with his support of a constitutional amendment banning same-sex marriage. Accordingly, many GLBT rights advocates refused to criticize Democrats because they feared throwing the election to Senator McCain. Perhaps in their effort to protect Democratic candidates these activists convinced themselves (if they did not already believe) that Democrats would actually support GLBT rights once elected. This is an unsophisticated position. True equality is not a political handout. It comes from activism, litigation, and engagement, rather than blind faith.
In many ways, GLBT groups are experiencing the fallout from their generous trust in Democratic politicians -- a stance that prior generations of gay rights advocates refused to take (up until possibly the election of Bill Clinton). Recent events should convince liberals to retire their wrongheaded discourse that embraces "post-racial," "post-feminist," and "post-identity" politics. So long as identity-based inequality exists, identity politics will remain relevant.
Forthcoming: A Legal Analysis of the DOMA Brief
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