In two separate opinions, a federal district judge in Massachusetts has ruled that section 3 of the Defense of Marriage Act violates the Constitution. Section 3 of DOMA excludes same-sex married couples from over 1,100 federal benefits (including social security survivor benefits and a host of other programs).
In one case, the judge held that Section 3 violated the equal protection rights of same-sex married couples. The judge ruled that the discriminatory policy lacked a rational basis.
The court rejected the government's asserted reasons for discriminating against same-sex couples. The government argued that DOMA encourages responsible procreation and child-bearing, defends and nurtures the institution of traditional heterosexual marriage, defends traditional notions of morality, and preserves scarce resources.
The court found these interests insufficient to warrant discrimination against same-sex married couples. The court also cited the lengthy record of overt homophobia among members of Congress who supported the legislation.
The second opinion held that Section 3 violated the 10th Amendment because it intrudes upon the ability of states to define marriage and because it conditions the receipt of federal benefits upon states depriving gays and lesbians of equal protection. The State of Massachusetts brought this lawsuit.
Final Take
Unless an appeals court reverses these rulings, they will benefit same-sex married couples. The decisions, however, do not provide relief for most gays and lesbians who cannot legally marry.
Also, it is quite possible that an appeals court might reverse one or both of the rulings. The 10th Amendment ruling, in particular, seems quite vulnerable to reversal in my professional opinion. It seems to rest on a more constrained view of federal power than current Supreme Court doctrine mandates. Professor Jack Balkin agrees (arguing that the court's 10th Amendment arguments "prove entirely too much").
Showing posts with label doma. Show all posts
Showing posts with label doma. Show all posts
Thursday, July 8, 2010
Monday, August 3, 2009
Obama and Don't Ask, Don't Tell: Political Hot Air?
The military is preparing to discharge another decorated service member because he is gay. Air Force Lt. Col. Victor Fehrenbach faces discharge after a civilian disclosed his sexual identity to military personnel. Although Fehrenbach did not "tell" the military about his sexuality, he could still lose his job and benefits that attach to it, including a pension and health care.
Is Obama Serving "Hot Air" on This Issue?
President Obama says that he opposes the military's anti-gay policy, and during his campaign he promised to seek the repeal of Don't Ask, Don't Tell. Obama, however, has not moved on this or many other promises he made regarding GLBT rights.
Although politics involves compromises and strategies, President Obama has consistently compromised or remained silent on GLBT issues. During his presidential campaign Obama opposed the Defense of Marriage Act (along with DADT), which he described as unfair. Earlier this year, however, the Department of Justice filed a controversial brief that defends the legitimacy of the statute. The brief makes the specious claim that Congress enacted DOMA to save money, rather than discriminate against same-sex married couples.
After GLBT activists condemned the brief, Obama scheduled a White House meeting with many of them. The event coincided with the anniversary of New York City's Stonewall Riots, a significant historical milestone in the development of GLBT social movements. During the White House event, Obama defended his position on GLBT rights, and he stated that he was "already working with the Pentagon and members of the House and the Senate on how we'll go about ending this policy, which will require an act of Congress."
Even though Obama has stated that he is "working with" members of Congress to repeal DADT, the extent of his efforts remains unclear. Recently, Representative Alcee Hastings of Florida suggested that Obama is saying much more than he is doing regarding the repeal of DADT.
In a formal statement posted on his website, Hastings said that as a result of pressure from members of Congress and from the White House, he withdrew a proposed amendment to a defense funding bill that would have banned the use of money to "investigate or discharge" military personnel who reveal their sexual orientation.
Hastings also says that in late June, he and 76 other members of Congress sent Obama a letter requesting that he work with them to repeal DADT; according to Hastings, Obama never responded to the letter.
Fehrenbach, who faces discharge from the Air Force, attended the June meeting that Obama hosted for advocates of GLBT rights. Fehrenbach met Obama and told him that he faced dismissal. Obama promised that "we are going to get this done." After the meeting, Secretary of Defense Robert Gates said that the Obama administration was trying to make DADT more "humane," including possibly declining to discharge individuals who, like Fehrenbach, are "outed by a third party." Today, however, Fehrenbach remains subject to dismissal.
Final Thoughts: The Power of Politics
I completely accept the proposition that any changes in this area must result from strategies that might include compromise and patience. I also believe that Hastings, who represents a very liberal district in which many GLBT individuals reside, was engaging in generous amount of political grandstanding for his constituents when he proposed the measure to defund the enforcement of DADT.
Nevertheless, I do not share the opinion of writer Jackson Williams, who, in an article published by the tirelessly pro-Obama Huffington Post, contends that Hastings was "foolish" for raising the issue of DADT while Obama is struggling to pass health care. The number of excuses that Obama and his supporters have offered to justify his tepid approach to GLBT rights is increasing. The economy, the wars, inaction by Congress, and now health care all render GLBT rights trivial and complicated. Whatever happened to multi-tasking?
The wars will not end in the foreseeable future, and the economy will remain in a precarious state for some time -- according to Obama himself. Furthermore, the passage of health care reform will not retire the issue because any changes will require implementation.
Furthermore, the excuses that Obama and his supporters offer to justify inaction on GLBT rights conflict with many of the best reasons for ending anti-gay discrimination, including arguments that Obama accepted in the past. For example, Obama and his supporters contend that the wars and national security require a delay in the repeal of DADT. Obama, however, previously argued that repealing DADT is important for national security because the policy deprives the armed forces of talented individuals. Obama and his supporters also argue that repealing DADT cannot occur until the government stabilizes the economy. Enforcing the policy, however, deprives people of jobs, and during a time of high unemployment, this is extremely problematic. Persons who condemn Hastings for pressing the matter during health care debates conveniently neglect to mention that the enforcement of DADT causes many service members to lose health benefits.
More importantly, as I have previously argued on Dissenting Justice (and elsewhere), social movements must push politicians to take positions. This "pushing" includes strategies like the one Hastings recently employed. Hastings has now taken a hard stance on the issue, and he has formally "called out" Obama for taking a conservative line. As a result of this exchange, the stakes will be higher for Obama in the future. If he continues to dance around GLBT issues, then the level of disappointment among his liberal base will continue to rise, which will undermine his reputation as a trustworthy advocate. Eventually, Obama must deliver something tangible to his liberal base -- just as Hastings has done. Placing pressure upon moderate politicians like Obama, who claim to support GLBT issues, likely represents the only viable path to real change.
Is Obama Serving "Hot Air" on This Issue?
President Obama says that he opposes the military's anti-gay policy, and during his campaign he promised to seek the repeal of Don't Ask, Don't Tell. Obama, however, has not moved on this or many other promises he made regarding GLBT rights.
Although politics involves compromises and strategies, President Obama has consistently compromised or remained silent on GLBT issues. During his presidential campaign Obama opposed the Defense of Marriage Act (along with DADT), which he described as unfair. Earlier this year, however, the Department of Justice filed a controversial brief that defends the legitimacy of the statute. The brief makes the specious claim that Congress enacted DOMA to save money, rather than discriminate against same-sex married couples.
After GLBT activists condemned the brief, Obama scheduled a White House meeting with many of them. The event coincided with the anniversary of New York City's Stonewall Riots, a significant historical milestone in the development of GLBT social movements. During the White House event, Obama defended his position on GLBT rights, and he stated that he was "already working with the Pentagon and members of the House and the Senate on how we'll go about ending this policy, which will require an act of Congress."
Even though Obama has stated that he is "working with" members of Congress to repeal DADT, the extent of his efforts remains unclear. Recently, Representative Alcee Hastings of Florida suggested that Obama is saying much more than he is doing regarding the repeal of DADT.
In a formal statement posted on his website, Hastings said that as a result of pressure from members of Congress and from the White House, he withdrew a proposed amendment to a defense funding bill that would have banned the use of money to "investigate or discharge" military personnel who reveal their sexual orientation.
Hastings also says that in late June, he and 76 other members of Congress sent Obama a letter requesting that he work with them to repeal DADT; according to Hastings, Obama never responded to the letter.
Fehrenbach, who faces discharge from the Air Force, attended the June meeting that Obama hosted for advocates of GLBT rights. Fehrenbach met Obama and told him that he faced dismissal. Obama promised that "we are going to get this done." After the meeting, Secretary of Defense Robert Gates said that the Obama administration was trying to make DADT more "humane," including possibly declining to discharge individuals who, like Fehrenbach, are "outed by a third party." Today, however, Fehrenbach remains subject to dismissal.
Final Thoughts: The Power of Politics
I completely accept the proposition that any changes in this area must result from strategies that might include compromise and patience. I also believe that Hastings, who represents a very liberal district in which many GLBT individuals reside, was engaging in generous amount of political grandstanding for his constituents when he proposed the measure to defund the enforcement of DADT.
Nevertheless, I do not share the opinion of writer Jackson Williams, who, in an article published by the tirelessly pro-Obama Huffington Post, contends that Hastings was "foolish" for raising the issue of DADT while Obama is struggling to pass health care. The number of excuses that Obama and his supporters have offered to justify his tepid approach to GLBT rights is increasing. The economy, the wars, inaction by Congress, and now health care all render GLBT rights trivial and complicated. Whatever happened to multi-tasking?
The wars will not end in the foreseeable future, and the economy will remain in a precarious state for some time -- according to Obama himself. Furthermore, the passage of health care reform will not retire the issue because any changes will require implementation.
Furthermore, the excuses that Obama and his supporters offer to justify inaction on GLBT rights conflict with many of the best reasons for ending anti-gay discrimination, including arguments that Obama accepted in the past. For example, Obama and his supporters contend that the wars and national security require a delay in the repeal of DADT. Obama, however, previously argued that repealing DADT is important for national security because the policy deprives the armed forces of talented individuals. Obama and his supporters also argue that repealing DADT cannot occur until the government stabilizes the economy. Enforcing the policy, however, deprives people of jobs, and during a time of high unemployment, this is extremely problematic. Persons who condemn Hastings for pressing the matter during health care debates conveniently neglect to mention that the enforcement of DADT causes many service members to lose health benefits.
More importantly, as I have previously argued on Dissenting Justice (and elsewhere), social movements must push politicians to take positions. This "pushing" includes strategies like the one Hastings recently employed. Hastings has now taken a hard stance on the issue, and he has formally "called out" Obama for taking a conservative line. As a result of this exchange, the stakes will be higher for Obama in the future. If he continues to dance around GLBT issues, then the level of disappointment among his liberal base will continue to rise, which will undermine his reputation as a trustworthy advocate. Eventually, Obama must deliver something tangible to his liberal base -- just as Hastings has done. Placing pressure upon moderate politicians like Obama, who claim to support GLBT issues, likely represents the only viable path to real change.
Thursday, July 16, 2009
No! "Gay Is Not the New Black," BUT. . . .
ESPN columnist LZ Granderson has published an essay on CNN.com that repudiates a slogan that has gained traction among (white) advocates of GLBT rights: "Gay is the new black." Granderson argues that most black gays and lesbians reject the sentiment underlying this phrase, which implies that GLBT people are marginalized like blacks "used" to be.
I have written numerous law review articles and blog entries on the subject of race and GLBT rights (see Google). Accordingly, I had a number of intellectual reactions to Granderson's essay when I first read it. Below, I have catalogued my primary reactions to his commentary. In sum, I find that his article makes some valid points, but Granderson fails to offer a useful and sophisticated analysis of the politics of race and sexual identity.
Gay Is Not the New Black
Although the slogan "gay is the new black" is relatively new, the sentiment it expresses is old. GLBT rights advocates have a long history of invoking racial justice and racism in their arguments. In many ways, legal culture encourages the comparisons of racism and heterosexism due to its fascination with precedent. Established doctrine compels lawyers to argue that courts should invalidate antigay policies because discrimination against GLBT people is sufficiently similar to racism.
This argument, however, ignores substantial differences between "GLBT people" and "blacks." Race and class advantage many GLBT people, while inherited inequality and ongoing discrimination continue to constrain persons of color. The analogies do not present this complexity. The comparisons also rest on a factually inaccurate assumption -- that "GLBT people" and "blacks" are distinct categories subject to comparison. Black GLBT people, however, shatter and fatally complicate this assumption.
The pitfalls associated with the analogies, however, do not doom the project of GLBT rights. Nonetheless, in their advocacy many GLBT activists and blacks refuse to acknowledge that homophobia and heterosexism warrant remedial action, notwithstanding the historical or contemporary experiences of blacks with racism. GLBT activists advance the troubling analogies to advocate gay rights, while blacks contest the analogies in order to dismiss gay rights. Despite their differences, both sides remain wedded to the analogies.
Civil rights by analogical reasoning is a bankrupt concept. Even today's blacks have not experienced the same type of racism as, say, slaves, but they still deserve civil rights protection. Holding GLBT people to a different standard is blatantly discriminatory.
The use of analogies in civil rights discourse unnecessarily limits civil rights protection to groups who have "the same" experiences as blacks (when no such group exists), which causes these groups to rely upon the misleading analogies. The analogies also rigidly portray civil rights as inapplicable to harmful social prejudices that do not mimic racism. Racism, however, is not the only form of oppression, and racism does not exist in a vacuum, detached from other types of discrimination. Granderson and other critics of the analogies never justify their narrow approach to equality.
Gay Is Not the New Black, BUT. . . .This Should Not Banish GLBT Rights to Obscurity
Even though gay is not the new black, this fact should not banish GLBT rights to obscurity. In addition, this observation cannot excuse or justify liberal politicians' inaction regarding or opposition to gay rights. This holds true even if the liberal politician is President Obama.
Granderson portrays GLBT criticism of Obama as coming almost exclusively from whites. Even if this were true (some blacks have indeed criticized Obama on GLBT issues), this does not mean that Obama has acted admirably on GLBT rights, and it does not disturb the fact that he has taken positions that differ from his campaign promises.
Obama created a lot of the excitement in the GLBT activist community with his numerous and sweeping campaign promises to undo blatant antigay discrimination encoded in federal law. But when Obama had his first opportunity to act consistently with his campaign promises, he took the exact opposite position and defended the Defense of Marriage Act as rational legislation -- despite his own assertion on the campaign trail that the law was unfair and that it should be repealed.
Although several commentators overreached in their criticism of the DOMA brief, the official governmental stance on the issue directly contradicts Obama's description of the law during his campaign. And while the Department of Justice normally defends the legality of existing federal law, Obama could have directed the lawyers to concede the issue (which he did in a subsequent case involving discrimination on the basis of gender identity). If Obama did not believe, perhaps reasonably, that defending DOMA would benefit him politically, he would not have done so.
Gay Is Not the New Black, BUT. . .This Does Not Excuse Black Homophobia or Inattention to GLBT Rights Among Liberal Politicians
Granderson's argument ignores the operation of black homophobia in the lives of black GLBT people. For example, he rightfully condemns white gay racism, but he suggests that this alone explains the existence of separate clubs and pride celebrations along the lines of race within GLBT communities. Although I agree with Granderson on the existence of racism within GLBT communities, racism alone cannot explain the popularity of separate black gay clubs and festivals. Black homophobia plays a role as well.
If the black community was a Utopia where black GLBT people could live their lives openly without fear of reprisal, then, applying Granderson's logic, these separate clubs would not exist apart from other black cultural institutions. This Utopia, however, does not exist. Black homophobia is an important social problem (just like white homophobia). Responding only to racism (but not homophobia, sexism and poverty) paints an incomplete picture.
Granderson also argues that some of Obama's critics seem impatient and unable to appreciate the fact that equality comes from sustained political activity. I agree. But part of this sustained activity must include open criticism, dissent and debate. Frederick Douglass, a leading black abolitionist, was invited to speak at the dedication of Washington, D.C.'s Lincoln Park, which is named in honor of the late President Lincoln. During his speech, Douglass called Lincoln a racist and said that he was a president to whites, not blacks. I suspect that he said even stronger things to Lincoln privately. Regardless, Obama's GLBT critics seem pretty soft in comparison.
Rather than asking GLBT advocates to tone down their criticism to mirror blacks (who largely remain exuberant regarding Obama), I encourage all progressives, including antiracist activists, to treat Obama as a president. His election is imbued with great symbolism, but this does not change the fact that he is a living, breathing politician who will only take risky and tough positions if he is pushed to do so. No progressive social movement in the United States has succeeded by giving politicians, including allies, a free pass. It seems highly unlikely that the GLBT and racial justice movements can defy these odds. Although social movement actors should act strategically, being strategic does not mean accepting complacency and silence.
Stonewall and Race
Finally, Granderson argues that the Stonewall Riots, which many GLBT activists mark as the the beginning of the "gay rights movement," only happened 40 years ago, but that blacks (by comparison) have struggled against racism for much longer. I agree with his assertion that the formal gay rights movement is "younger" than the antiracism movement in the United States. But to the extent that Granderson believes that antigay discrimination only began 40 years ago, his argument fails. Antigay discrimination predated Stonewall (as did pro-gay advocacy).
More importantly, Granderson fails to mention that a substantial number of the participants in the Stonewall Riots were poor people, people of color, and gender non-conforming men and women who were the most vulnerable to the police raids and other abuses. They were tired of waiting and enduring hostility in silence.
Although Stonewall was a moment of racial and gay activism, neither the black (heterosexual) community nor the (white) gay community seems to appreciate its complexity. While Granderson's article comes close to unveiling the richness of gay experience, his failure to confront black homophobia as well as white gay racism leaves many gaping holes in his analysis.
Update: The responses to Granderson are coming in, and the early count suggests that "we are not amused":
My answer to L.Z. Granderson - There should be no pride in comparing forms of oppression
ESPN's LZ Granderson Comments That Gay Isn't The New Black
Gays and Blacks Attempt to Compare Penis Size. Ruler Found Lacking. Jews Miffed About Not Being Invited to the Circle Jerk of Misery. « Trey Givens
Sigh
I have written numerous law review articles and blog entries on the subject of race and GLBT rights (see Google). Accordingly, I had a number of intellectual reactions to Granderson's essay when I first read it. Below, I have catalogued my primary reactions to his commentary. In sum, I find that his article makes some valid points, but Granderson fails to offer a useful and sophisticated analysis of the politics of race and sexual identity.
Gay Is Not the New Black
Although the slogan "gay is the new black" is relatively new, the sentiment it expresses is old. GLBT rights advocates have a long history of invoking racial justice and racism in their arguments. In many ways, legal culture encourages the comparisons of racism and heterosexism due to its fascination with precedent. Established doctrine compels lawyers to argue that courts should invalidate antigay policies because discrimination against GLBT people is sufficiently similar to racism.
This argument, however, ignores substantial differences between "GLBT people" and "blacks." Race and class advantage many GLBT people, while inherited inequality and ongoing discrimination continue to constrain persons of color. The analogies do not present this complexity. The comparisons also rest on a factually inaccurate assumption -- that "GLBT people" and "blacks" are distinct categories subject to comparison. Black GLBT people, however, shatter and fatally complicate this assumption.
The pitfalls associated with the analogies, however, do not doom the project of GLBT rights. Nonetheless, in their advocacy many GLBT activists and blacks refuse to acknowledge that homophobia and heterosexism warrant remedial action, notwithstanding the historical or contemporary experiences of blacks with racism. GLBT activists advance the troubling analogies to advocate gay rights, while blacks contest the analogies in order to dismiss gay rights. Despite their differences, both sides remain wedded to the analogies.
Civil rights by analogical reasoning is a bankrupt concept. Even today's blacks have not experienced the same type of racism as, say, slaves, but they still deserve civil rights protection. Holding GLBT people to a different standard is blatantly discriminatory.
The use of analogies in civil rights discourse unnecessarily limits civil rights protection to groups who have "the same" experiences as blacks (when no such group exists), which causes these groups to rely upon the misleading analogies. The analogies also rigidly portray civil rights as inapplicable to harmful social prejudices that do not mimic racism. Racism, however, is not the only form of oppression, and racism does not exist in a vacuum, detached from other types of discrimination. Granderson and other critics of the analogies never justify their narrow approach to equality.
Gay Is Not the New Black, BUT. . . .This Should Not Banish GLBT Rights to Obscurity
Even though gay is not the new black, this fact should not banish GLBT rights to obscurity. In addition, this observation cannot excuse or justify liberal politicians' inaction regarding or opposition to gay rights. This holds true even if the liberal politician is President Obama.
Granderson portrays GLBT criticism of Obama as coming almost exclusively from whites. Even if this were true (some blacks have indeed criticized Obama on GLBT issues), this does not mean that Obama has acted admirably on GLBT rights, and it does not disturb the fact that he has taken positions that differ from his campaign promises.
Obama created a lot of the excitement in the GLBT activist community with his numerous and sweeping campaign promises to undo blatant antigay discrimination encoded in federal law. But when Obama had his first opportunity to act consistently with his campaign promises, he took the exact opposite position and defended the Defense of Marriage Act as rational legislation -- despite his own assertion on the campaign trail that the law was unfair and that it should be repealed.
Although several commentators overreached in their criticism of the DOMA brief, the official governmental stance on the issue directly contradicts Obama's description of the law during his campaign. And while the Department of Justice normally defends the legality of existing federal law, Obama could have directed the lawyers to concede the issue (which he did in a subsequent case involving discrimination on the basis of gender identity). If Obama did not believe, perhaps reasonably, that defending DOMA would benefit him politically, he would not have done so.
Gay Is Not the New Black, BUT. . .This Does Not Excuse Black Homophobia or Inattention to GLBT Rights Among Liberal Politicians
Granderson's argument ignores the operation of black homophobia in the lives of black GLBT people. For example, he rightfully condemns white gay racism, but he suggests that this alone explains the existence of separate clubs and pride celebrations along the lines of race within GLBT communities. Although I agree with Granderson on the existence of racism within GLBT communities, racism alone cannot explain the popularity of separate black gay clubs and festivals. Black homophobia plays a role as well.
If the black community was a Utopia where black GLBT people could live their lives openly without fear of reprisal, then, applying Granderson's logic, these separate clubs would not exist apart from other black cultural institutions. This Utopia, however, does not exist. Black homophobia is an important social problem (just like white homophobia). Responding only to racism (but not homophobia, sexism and poverty) paints an incomplete picture.
Granderson also argues that some of Obama's critics seem impatient and unable to appreciate the fact that equality comes from sustained political activity. I agree. But part of this sustained activity must include open criticism, dissent and debate. Frederick Douglass, a leading black abolitionist, was invited to speak at the dedication of Washington, D.C.'s Lincoln Park, which is named in honor of the late President Lincoln. During his speech, Douglass called Lincoln a racist and said that he was a president to whites, not blacks. I suspect that he said even stronger things to Lincoln privately. Regardless, Obama's GLBT critics seem pretty soft in comparison.
Rather than asking GLBT advocates to tone down their criticism to mirror blacks (who largely remain exuberant regarding Obama), I encourage all progressives, including antiracist activists, to treat Obama as a president. His election is imbued with great symbolism, but this does not change the fact that he is a living, breathing politician who will only take risky and tough positions if he is pushed to do so. No progressive social movement in the United States has succeeded by giving politicians, including allies, a free pass. It seems highly unlikely that the GLBT and racial justice movements can defy these odds. Although social movement actors should act strategically, being strategic does not mean accepting complacency and silence.
Stonewall and Race
Finally, Granderson argues that the Stonewall Riots, which many GLBT activists mark as the the beginning of the "gay rights movement," only happened 40 years ago, but that blacks (by comparison) have struggled against racism for much longer. I agree with his assertion that the formal gay rights movement is "younger" than the antiracism movement in the United States. But to the extent that Granderson believes that antigay discrimination only began 40 years ago, his argument fails. Antigay discrimination predated Stonewall (as did pro-gay advocacy).
More importantly, Granderson fails to mention that a substantial number of the participants in the Stonewall Riots were poor people, people of color, and gender non-conforming men and women who were the most vulnerable to the police raids and other abuses. They were tired of waiting and enduring hostility in silence.
Although Stonewall was a moment of racial and gay activism, neither the black (heterosexual) community nor the (white) gay community seems to appreciate its complexity. While Granderson's article comes close to unveiling the richness of gay experience, his failure to confront black homophobia as well as white gay racism leaves many gaping holes in his analysis.
Update: The responses to Granderson are coming in, and the early count suggests that "we are not amused":
My answer to L.Z. Granderson - There should be no pride in comparing forms of oppression
ESPN's LZ Granderson Comments That Gay Isn't The New Black
Gays and Blacks Attempt to Compare Penis Size. Ruler Found Lacking. Jews Miffed About Not Being Invited to the Circle Jerk of Misery. « Trey Givens
Sigh
Tuesday, June 30, 2009
Dissenting Justice on the DOMA Brief, Part II: The Legal Arguments
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.
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.
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
Wednesday, June 17, 2009
After Controversial Defense of DOMA, Obama Will Give Benefits to Same-Sex Partners of Federal Workers
Last week the Department of Justice submitted a legal brief defending the Defense of Marriage Act against a lawsuit challenging its constitutionality. The brief, which contains politically damaging even if legally predictable arguments, caused controversy among LGBT activists. Today, in a move possibly designed to calm that storm, the President will apparently issue an executive order extending benefits to same-sex partners of federal employees. The full details of the rumored plan, however, remain unavailable, but the New York Times reports that it will not include "health benefits."
Note: Outside of pensions and health care, I am not sure what substantial "benefits" the partners of federal employers receive.
Note: Outside of pensions and health care, I am not sure what substantial "benefits" the partners of federal employers receive.
Wednesday, May 13, 2009
President Obama: Less Talk, More Action on GLBT Rights Issues!
During his presidential campaign, Obama promised to seek the repeal of Don’t Ask, Don’t Tell ("DADT") and the Defense of Marriage Act ("DOMA") and to pursue the enactment of statutory measures that prohibit discrimination by employers on the basis of sexual orientation and gender identity. And in a dramatic display of metrosexual realness, Obama described himself as a “fierce advocate” of GLBT rights.
Thus far in his presidency, however, Obama has not demonstrated his fierceness. Although he invited gay and lesbian families to participate in the White House annual Easter Egg Roll (as they did during the Bush administration) and chose John Berry, an openly gay man, to head the Office of Personnel Management (a non-Cabinet position), outside of these symbolic gestures, nothing significant has occurred. In fact, the only recent substantial progress in GLBT rights has resulted from social movement activism in various liberal states. The federal government remains a dead letter.
Two Fierce Advocates for GLBT Rights: Daniel Choi and Sandy Tsao
The recent military discharge of two Asian-Americans who publicly identified as being gay and lesbian creates a new political imperative for action. Lieutenant Daniel Choi, a member of the Army National Guard, founded Knights Out – an organization for GLBT West Point alumni. Second Lieutenant Sandy Tsao identified herself as a lesbian to her chain of command in January 2009. Tsao also sent Obama a letter expressing plan to stop lying about her sexual orientation.
The military has informed Choi and Tsao of their impending discharges, and their stories have received national media coverage. Also, Obama recently responded to Tsao’s letter with a handwritten note that states the following:
Delaying/Denying Justice
Even before his presidency began, several news articles indicated that Obama would place GLBT legislative reform on the back burner. Furthermore, Secretary of Defense Robert Gates had previously stated during the Bush administration that the ongoing wars made it impossible for the government to address DADT. Gates has restated this justification for inaction by the Obama administration. It now seems very clear that with respect to GLBT rights, Obama will talk now and act at some undetermined time in the future, if at all.
Choi, like a growing number of GLBT rights advocates, wants immediate action. Choi has written a passionate “Open Letter to President Obama and Every Member of Congress” that asks the government not to “fire” him and condemns the premise upon which DADT rests – that “homosexuality” deteriorates troop morale and cohesion:
Closing Thoughts
Although Obama cannot repeal DADT, he probably has the authority as Commander-in-Chief to order the military not to discharge any more GLBT service members while he conducts a review of the policy. He followed this same approach with respect to proceedings in military commissions, which he also disparaged during his campaign (but which he will now revive).
GLBT rights groups could probably do more to build a public consensus on this issue if they stressed the economic consequences of a military discharge – which means loss of employment and, potentially, a loss of educational and health care benefits. Choi and Tsao’s public statements appeal exclusively to military valor and honor and to the wrongfulness of sexual orientation discrimination. While these are effective ways of framing the issue, the sagging economy presents a powerful opportunity to emphasize one of the most immediate adverse implications of DADT: the loss of work and benefits. The public's current sensitivity and vulnerability to unemployment could likely enhance political support for measures that prohibit employment discrimination on the basis of sexual orientation and gender identity.
National reform on GLBT issues must necessarily occur at a slower pace than in the liberal blue states that have recently approved same-sex marriage and where preexisting laws prohibited sexual orientation and gender identity discrimination. But the level of national opposition to GLBT rights does not preclude any substantive progress within federal law, nor does it require delaying such changes while Obama endeavors to achieve global peace, universal health care, a robust world economy, the 2016 Summer Olympics for Chicago, and his many other lofty goals. To use his own words, a president must have the ability to multi-task. I agree. Making some movement on GLBT rights will not overwhelm the president or the nation. In fact, on some issues, like DADT, a majority of the public supports reform. Accordingly, it is now time for the President and Congress to begin making concrete progress on GLBT rights.
Thus far in his presidency, however, Obama has not demonstrated his fierceness. Although he invited gay and lesbian families to participate in the White House annual Easter Egg Roll (as they did during the Bush administration) and chose John Berry, an openly gay man, to head the Office of Personnel Management (a non-Cabinet position), outside of these symbolic gestures, nothing significant has occurred. In fact, the only recent substantial progress in GLBT rights has resulted from social movement activism in various liberal states. The federal government remains a dead letter.
Two Fierce Advocates for GLBT Rights: Daniel Choi and Sandy Tsao
The recent military discharge of two Asian-Americans who publicly identified as being gay and lesbian creates a new political imperative for action. Lieutenant Daniel Choi, a member of the Army National Guard, founded Knights Out – an organization for GLBT West Point alumni. Second Lieutenant Sandy Tsao identified herself as a lesbian to her chain of command in January 2009. Tsao also sent Obama a letter expressing plan to stop lying about her sexual orientation.
The military has informed Choi and Tsao of their impending discharges, and their stories have received national media coverage. Also, Obama recently responded to Tsao’s letter with a handwritten note that states the following:
Sandy - Thanks for the wonderful and thoughtful letter. It is because of outstanding Americans like you that I committed to changing our current policy. Although it will take some time to complete (partly because it needs Congressional action) I intend to fulfill my commitment. — Barack Obama.Obama’s letter to Sandy is an amazing piece of history, because it probably (although I cannot make this claim with certainty) represents the only official correspondence from a president to an individual lesbian citizen describing his opposition to sexual orientation discrimination and his desire to repeal discriminatory laws. But the letter also functions as classic political rhetoric because it seeks to soothe and calm potential anger among GLBT activists so that any change on GLBT legal issues will occur at a pace that Obama favors.
Delaying/Denying Justice
Even before his presidency began, several news articles indicated that Obama would place GLBT legislative reform on the back burner. Furthermore, Secretary of Defense Robert Gates had previously stated during the Bush administration that the ongoing wars made it impossible for the government to address DADT. Gates has restated this justification for inaction by the Obama administration. It now seems very clear that with respect to GLBT rights, Obama will talk now and act at some undetermined time in the future, if at all.
Choi, like a growing number of GLBT rights advocates, wants immediate action. Choi has written a passionate “Open Letter to President Obama and Every Member of Congress” that asks the government not to “fire” him and condemns the premise upon which DADT rests – that “homosexuality” deteriorates troop morale and cohesion:
As an infantry officer, I am not accustomed to begging. But I beg you today: Do not fire me. Do not fire me because my soldiers are more than a unit or a fighting force – we are a family and we support each other. We should not learn that honesty and courage leads to punishment and insult. Their professionalism should not be rewarded with losing their leader. I understand if you must fire me, but please do not discredit and insult my soldiers for their professionalism.In addition to the Choi and Tsao matters, ongoing litigation challenges DADT and DOMA’s denial of federal benefits to same-sex couples. The government has not responded to the substance of these cases, but both lawsuits present legal issues that Obama says he supports. Accordingly, the government’s response will test the President’s commitment to his promises regarding GLBT rights.
Closing Thoughts
Although Obama cannot repeal DADT, he probably has the authority as Commander-in-Chief to order the military not to discharge any more GLBT service members while he conducts a review of the policy. He followed this same approach with respect to proceedings in military commissions, which he also disparaged during his campaign (but which he will now revive).
GLBT rights groups could probably do more to build a public consensus on this issue if they stressed the economic consequences of a military discharge – which means loss of employment and, potentially, a loss of educational and health care benefits. Choi and Tsao’s public statements appeal exclusively to military valor and honor and to the wrongfulness of sexual orientation discrimination. While these are effective ways of framing the issue, the sagging economy presents a powerful opportunity to emphasize one of the most immediate adverse implications of DADT: the loss of work and benefits. The public's current sensitivity and vulnerability to unemployment could likely enhance political support for measures that prohibit employment discrimination on the basis of sexual orientation and gender identity.
National reform on GLBT issues must necessarily occur at a slower pace than in the liberal blue states that have recently approved same-sex marriage and where preexisting laws prohibited sexual orientation and gender identity discrimination. But the level of national opposition to GLBT rights does not preclude any substantive progress within federal law, nor does it require delaying such changes while Obama endeavors to achieve global peace, universal health care, a robust world economy, the 2016 Summer Olympics for Chicago, and his many other lofty goals. To use his own words, a president must have the ability to multi-task. I agree. Making some movement on GLBT rights will not overwhelm the president or the nation. In fact, on some issues, like DADT, a majority of the public supports reform. Accordingly, it is now time for the President and Congress to begin making concrete progress on GLBT rights.
Saturday, May 2, 2009
WhiteHouse.Gov Gets GLBT Makeover
GLBT voters are bedrock Democrats. Accordingly, all of the Democratic presidential candidates expressed their passionate support for gay rights -- with the glaring exception of same-sex marriage. WhiteHouse.Gov contains a civil rights page that lists many areas of interest, including gay rights. But as several bloggers have observed, the webpage was recently overhauled, and the changes are raising eyebrows.
Tinkering With DOMA and DADT Language
The amended version of the webpage omits language stating that the president wants to see DOMA and DADT repealed. While the DOMA language disappeared altogether, the new DADT passage states that the president supports "changing Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security" (italics added).
After receiving several complaints, the web personnel have changed the site to reinstate the "repeal" of DADT language, although it awkwardly states that the president wants to repeal the statute in a "sensible" way. Nevertheless, the DOMA language remains missing.
Signaling a Policy Shift?
Coincidentally, the administration currently faces lawsuits that challenge the constitutionality of DOMA and DADT. After receiving extensions to file responses to the cases, the time is slowly running out for the Obama administration. According to Professor Nan Hunter's blog, the government's replies are due next week. It is difficult to believe that changes in WhiteHouse.Gov language concerning these two issues do not indicate the position the government will soon take in the lawsuits.
The government, however, has stated that it is simply editing the pages to transition from "campaign" to "governance" mode. Because governance includes defending the government against lawsuits, I suppose the changes could reflect policy after all.
Tinkering With DOMA and DADT Language
The amended version of the webpage omits language stating that the president wants to see DOMA and DADT repealed. While the DOMA language disappeared altogether, the new DADT passage states that the president supports "changing Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security" (italics added).
After receiving several complaints, the web personnel have changed the site to reinstate the "repeal" of DADT language, although it awkwardly states that the president wants to repeal the statute in a "sensible" way. Nevertheless, the DOMA language remains missing.
Signaling a Policy Shift?
Coincidentally, the administration currently faces lawsuits that challenge the constitutionality of DOMA and DADT. After receiving extensions to file responses to the cases, the time is slowly running out for the Obama administration. According to Professor Nan Hunter's blog, the government's replies are due next week. It is difficult to believe that changes in WhiteHouse.Gov language concerning these two issues do not indicate the position the government will soon take in the lawsuits.
The government, however, has stated that it is simply editing the pages to transition from "campaign" to "governance" mode. Because governance includes defending the government against lawsuits, I suppose the changes could reflect policy after all.
Tuesday, April 7, 2009
GLBT Equality Movements Reject the Meaning and Pace of "Change" Embraced by "Liberal" Politicians
In only a few months, courts in Connecticut and Iowa and lawmakers in Vermont have legalized same-sex marriage. And a 2004 court ruling in Massachusetts invalidated a same-sex marriage prohibition in that state.
Although voters in California, Arizona and Florida voted to ban same-sex marriage on Election Day 2008, a Florida judge recently overturned the state's ban on "homosexual" adoptions, and voters in Gainesville, Florida defeated a referendum which sought to repeal an ordinance that prohibits discrimination on the basis of sexual orientation and gender identity. Also, the Washington, DC City Council has voted to recognize same-sex marriages performed in other jurisdictions.
Most of these recent GLBT victories have occurred after decades of litigation, lobbying, political organizing, public information campaigns, and painful setbacks. Many commentators believe that public division over same-sex marriage helped President Bush win the 2004 election. That year, Bush sponsored an unsuccessful constitutional amendment that would have banned same-sex marriage. Exit polls show that a higher percentage of religions conservatives voted in key swing states than in the previous election cycle, possibly due to conflict over the same-sex marriage issue. Given this history, in 2008 all of the leading candidates in both parties danced around GLBT rights, and none of the true contenders endorsed same-sex marriage.
GLBT Movements Accomplish Change, Other Groups Find "More of the Same"
GLBT equality movements have engaged in relatively savvy political and legal action, which has led to their recent victories. No other liberal social movement can claim the rapid success that GLBT organizations are currently experiencing.
Labor groups are struggling to get Democrats in Congress to pass the Employee Free Choice Act. Also, the decision by the Obama administration to push the auto industry into bankruptcy and consolidation -- rather than giving car manufacturers trillions of dollars like banks have received -- will undoubtedly require drastic concessions by labor.
While women's rights groups celebrated the enactment of the Ledbetter Fair Pay Act, the statute really does not guarantee equal pay at all. Instead, it is simply a procedural measure that reinstates the more flexible statute of limitations rule that most courts applied in employment discrimination cases until 2006, when a divided Supreme Court imposed a more restrictive rule. The Ledbetter legislation is an important advance. Nevertheless, while gender equality advocates gushed over President Obama's ceremonial signing of the law, Congress tabled a more expansive proposal that would have relaxed the extraordinarily tough evidentiary burdens on plaintiffs in pay equity cases.
Pro-choice groups are another important Democratic Party constituency. In recognition of their electoral significance, President Obama reversed the "Global Gag Rule" during the early days of his presidency, but it remains pretty clear that he will not seek to reverse the Hyde Amendment and to legalize the use of federal funds for domestic abortion services.
Blacks and Latinos voted heavily for President Obama, but race and civil rights have not formed a visible part of the new administration's domestic agenda. Although the economy is certainly relevant to people of color -- who are disproportionately poor and unemployed -- most of the government's policies dealing with the economy have transferred wealth to powerful financial institutions. By contrast, only a few reforms have been implemented that provide immediate consumer-based relief. This glaring dichotomy explains the passionate response of the public to executive bonuses and compensation.
Finally, civil libertarians celebrated the President's executive orders banning torture, closing the Guantanamo Bay detention facility, and shuttering the CIA prisons. But they have been largely unsuccessful convincing the Obama administration to abandon highly criticized policies of the Bush administration -- such as asserting a highly expansive state secrets litigation defense, adhering to the use of rendition by the CIA, denying civilian attorneys access to the Guantanamo Bay detention center, holding out the possibility of "harsh" interrogations, and asserting broad power to detain indefinitely terrorism suspects (even if the government no longer uses the term "enemy combatants").
What Explains the Difference: GLBT Groups Are Not Passively Following Congress and the President
Although President Obama stated during his campaign that he would seek the repeal of Don't Ask, Don't Tell and the Defense of Marriage Act, he has not taken any affirmative steps to do so. Prior to his inauguration, press statements by anonymous members of his staff indicated that he would not move quickly on DADT.
Recent comments by Secretary of Defense Robert Gates affirms these earlier accounts. But Gates took a similar stance during the Bush administration, which caused some GLBT rights advocates (including this blogger) to question his nomination by President Obama. Needless to say, DADT is officially on the back burner.
Also, President Obama has not altered his position on same-sex marriage: He still believes that marriage should be limited to heterosexual couples. Rather than accepting his position or lobbying him to change his mind, GLBT rights groups have pursued other avenues of relief, including some that could force his hand.
For example, a recent lawsuit challenges the constitutionality of DOMA. Plaintiffs in the case entered lawfully recognized same-sex marriages under Massachusetts law. They seek equal access to federal benefits which DOMA denies, rather than a federal right to same-sex marriage.
The precarious status of the economy could help generate public support for efforts to alter the discriminatory distribution of federal benefits which DOMA mandates. Also a strong plurality to majority of the public supports "civil unions" and "equal benefits." Because this litigation advances an idea that enjoys popular support, it might succeed.
In any event, this case (along with an ongoing one that challenges the legality of DADT) could test President Obama's commitment to his campaign promises related to GLBT rights. Retreat from those promises could prove politically embarrassing and damaging.
Other Social Movements Are Passively "Going With the Flow"
Unlike GLBT social movements, most liberal groups are not visibly pushing the federal government or engaging in a sustained strategy in other venues. Apparently, they are still "glowing" over the Democratic sweep of Congress and the election of Obama.
Recent polls show almost unanimous Democratic support for President Obama. Furthermore, the Washington Post recently reported that many blacks feel conflicted over whether they should criticize Obama. Passive acceptance of the federal government's positions on policy is not a useful social movement strategy.
The differential treatment of auto manufacturers and financial institutions -- as well as the possible abandonment of the "public plan" option in health care reform -- means that labor unions could lose on some very important issues unless they push the Obama administration to alter its position. It is unclear whether women's rights groups will lobby for more substantial change, but with a new study reaffirming the existence of dramatic pay disparities that correlate with gender, the passage of substantive pay equity legislation could do more to advance gender equality than the Ledbetter legislation.
Importance of Engaged Social Movements to Social Change
Loyalty to a political party has never secured social change. Instead, political activism and litigation -- combined with political opportunities created by shifting economic and social conditions and international affairs have all led to substantial changes in policy across United States history.
Political commentators often distort history by vastly overstating the role of presidents and understating the importance of social movements to the history of policy innovation. Today, our society inflates the role of Lincoln in bringing about abolition, the centrality of Roosevelt to the New Deal and end of the Great Depression, the role of Kennedy in the enactment of the Civil Rights Act of 1964, and the role of Johnson in the passage of the anti-poverty and Great Society programs.
Although presidential leadership and vision were critical to the accomplishment of these policies, these dramatic changes would not have occurred without the engagement and agitation social movements. Presently, GLBT movements apparently "get" this aspect of history.
These observations are not unique to liberal causes. Conservative movements have also engaged in collective political action and litigation in order to accomplish their goals. Conservative social movement activity explains the sluggish move to integrate public schools after the landmark ruling in Brown v. Board of Education, the success of anti-choice movements in the 1980s, the effective politicization of same-sex marriage by conservatives in 2004 and 2008, the substantial legal constraints placed on the use of affirmative action, and the present realization among opponents to same-sex marriage that they must now recharge their activities in order to halt the impact of the marriage equality movement.
Only time will reveal if other liberal causes will take on a more activist stance towards policy and social change. If they fail to adopt more proactive approaches, they might obtain only nominal changes in an era that promised substantial progress.
Although voters in California, Arizona and Florida voted to ban same-sex marriage on Election Day 2008, a Florida judge recently overturned the state's ban on "homosexual" adoptions, and voters in Gainesville, Florida defeated a referendum which sought to repeal an ordinance that prohibits discrimination on the basis of sexual orientation and gender identity. Also, the Washington, DC City Council has voted to recognize same-sex marriages performed in other jurisdictions.
Most of these recent GLBT victories have occurred after decades of litigation, lobbying, political organizing, public information campaigns, and painful setbacks. Many commentators believe that public division over same-sex marriage helped President Bush win the 2004 election. That year, Bush sponsored an unsuccessful constitutional amendment that would have banned same-sex marriage. Exit polls show that a higher percentage of religions conservatives voted in key swing states than in the previous election cycle, possibly due to conflict over the same-sex marriage issue. Given this history, in 2008 all of the leading candidates in both parties danced around GLBT rights, and none of the true contenders endorsed same-sex marriage.
GLBT Movements Accomplish Change, Other Groups Find "More of the Same"
GLBT equality movements have engaged in relatively savvy political and legal action, which has led to their recent victories. No other liberal social movement can claim the rapid success that GLBT organizations are currently experiencing.
Labor groups are struggling to get Democrats in Congress to pass the Employee Free Choice Act. Also, the decision by the Obama administration to push the auto industry into bankruptcy and consolidation -- rather than giving car manufacturers trillions of dollars like banks have received -- will undoubtedly require drastic concessions by labor.
While women's rights groups celebrated the enactment of the Ledbetter Fair Pay Act, the statute really does not guarantee equal pay at all. Instead, it is simply a procedural measure that reinstates the more flexible statute of limitations rule that most courts applied in employment discrimination cases until 2006, when a divided Supreme Court imposed a more restrictive rule. The Ledbetter legislation is an important advance. Nevertheless, while gender equality advocates gushed over President Obama's ceremonial signing of the law, Congress tabled a more expansive proposal that would have relaxed the extraordinarily tough evidentiary burdens on plaintiffs in pay equity cases.
Pro-choice groups are another important Democratic Party constituency. In recognition of their electoral significance, President Obama reversed the "Global Gag Rule" during the early days of his presidency, but it remains pretty clear that he will not seek to reverse the Hyde Amendment and to legalize the use of federal funds for domestic abortion services.
Blacks and Latinos voted heavily for President Obama, but race and civil rights have not formed a visible part of the new administration's domestic agenda. Although the economy is certainly relevant to people of color -- who are disproportionately poor and unemployed -- most of the government's policies dealing with the economy have transferred wealth to powerful financial institutions. By contrast, only a few reforms have been implemented that provide immediate consumer-based relief. This glaring dichotomy explains the passionate response of the public to executive bonuses and compensation.
Finally, civil libertarians celebrated the President's executive orders banning torture, closing the Guantanamo Bay detention facility, and shuttering the CIA prisons. But they have been largely unsuccessful convincing the Obama administration to abandon highly criticized policies of the Bush administration -- such as asserting a highly expansive state secrets litigation defense, adhering to the use of rendition by the CIA, denying civilian attorneys access to the Guantanamo Bay detention center, holding out the possibility of "harsh" interrogations, and asserting broad power to detain indefinitely terrorism suspects (even if the government no longer uses the term "enemy combatants").
What Explains the Difference: GLBT Groups Are Not Passively Following Congress and the President
Although President Obama stated during his campaign that he would seek the repeal of Don't Ask, Don't Tell and the Defense of Marriage Act, he has not taken any affirmative steps to do so. Prior to his inauguration, press statements by anonymous members of his staff indicated that he would not move quickly on DADT.
Recent comments by Secretary of Defense Robert Gates affirms these earlier accounts. But Gates took a similar stance during the Bush administration, which caused some GLBT rights advocates (including this blogger) to question his nomination by President Obama. Needless to say, DADT is officially on the back burner.
Also, President Obama has not altered his position on same-sex marriage: He still believes that marriage should be limited to heterosexual couples. Rather than accepting his position or lobbying him to change his mind, GLBT rights groups have pursued other avenues of relief, including some that could force his hand.
For example, a recent lawsuit challenges the constitutionality of DOMA. Plaintiffs in the case entered lawfully recognized same-sex marriages under Massachusetts law. They seek equal access to federal benefits which DOMA denies, rather than a federal right to same-sex marriage.
The precarious status of the economy could help generate public support for efforts to alter the discriminatory distribution of federal benefits which DOMA mandates. Also a strong plurality to majority of the public supports "civil unions" and "equal benefits." Because this litigation advances an idea that enjoys popular support, it might succeed.
In any event, this case (along with an ongoing one that challenges the legality of DADT) could test President Obama's commitment to his campaign promises related to GLBT rights. Retreat from those promises could prove politically embarrassing and damaging.
Other Social Movements Are Passively "Going With the Flow"
Unlike GLBT social movements, most liberal groups are not visibly pushing the federal government or engaging in a sustained strategy in other venues. Apparently, they are still "glowing" over the Democratic sweep of Congress and the election of Obama.
Recent polls show almost unanimous Democratic support for President Obama. Furthermore, the Washington Post recently reported that many blacks feel conflicted over whether they should criticize Obama. Passive acceptance of the federal government's positions on policy is not a useful social movement strategy.
The differential treatment of auto manufacturers and financial institutions -- as well as the possible abandonment of the "public plan" option in health care reform -- means that labor unions could lose on some very important issues unless they push the Obama administration to alter its position. It is unclear whether women's rights groups will lobby for more substantial change, but with a new study reaffirming the existence of dramatic pay disparities that correlate with gender, the passage of substantive pay equity legislation could do more to advance gender equality than the Ledbetter legislation.
Importance of Engaged Social Movements to Social Change
Loyalty to a political party has never secured social change. Instead, political activism and litigation -- combined with political opportunities created by shifting economic and social conditions and international affairs have all led to substantial changes in policy across United States history.
Political commentators often distort history by vastly overstating the role of presidents and understating the importance of social movements to the history of policy innovation. Today, our society inflates the role of Lincoln in bringing about abolition, the centrality of Roosevelt to the New Deal and end of the Great Depression, the role of Kennedy in the enactment of the Civil Rights Act of 1964, and the role of Johnson in the passage of the anti-poverty and Great Society programs.
Although presidential leadership and vision were critical to the accomplishment of these policies, these dramatic changes would not have occurred without the engagement and agitation social movements. Presently, GLBT movements apparently "get" this aspect of history.
These observations are not unique to liberal causes. Conservative movements have also engaged in collective political action and litigation in order to accomplish their goals. Conservative social movement activity explains the sluggish move to integrate public schools after the landmark ruling in Brown v. Board of Education, the success of anti-choice movements in the 1980s, the effective politicization of same-sex marriage by conservatives in 2004 and 2008, the substantial legal constraints placed on the use of affirmative action, and the present realization among opponents to same-sex marriage that they must now recharge their activities in order to halt the impact of the marriage equality movement.
Only time will reveal if other liberal causes will take on a more activist stance towards policy and social change. If they fail to adopt more proactive approaches, they might obtain only nominal changes in an era that promised substantial progress.
Vermont Legislature Overrides Veto, Legalizes Same-Sex Marriage
Vermont has become the fourth state to recognize same-sex marriage. Yesterday, Governor Jim Douglas followed through with his threat to veto legislation that legalized same-sex marriage. Today, however, the state legislature swiftly overturned the veto, by a vote of 23-5 in the Senate and 100-49 in the House. Prior to the veto override, former governor and past presidential candidate Howard Dean urged lawmakers to pass the measure.
Vermont joins three other states that recognize same-sex marriages. Last week, the Iowa Supreme Court unanimously held that a state prohibition of same-sex marriage violated the state constitution. The Connecticut Supreme Court issued a similar ruling last year. And in 2004, the Supreme Judicial Court of Massachusetts invalidated a state ban on same-sex marriage. Although the highest courts in Hawaii and California also invalidated those states' prohibitions of same-sex marriage, voters overturned those rulings by constitutional amendment.
Social Movements Activity
The dramatic movement on this issue results from a litigation strategy devised by same-sex marriage proponents. Vermont is the only state to legalize same-sex marriage through legislation. Although court involvement in the issue has led some commentators to make claims of "judicial activism," the rulings have reasonably applied existing state law doctrine.
President Obama has stated that he does not support same-sex marriage. And while marriage is typically regulated by local law, the constitutional issues the subject implicates can bring it into the purview of federal courts. Advocates, however, have largely avoided the federal courts given their conservatism. Nevertheless, a recent litigation seeks to invalidate a portion of the Defense of Marriage Act that denies equal federal benefits to same-sex couples who are lawfully married in their home states. The Obama administration has not responded to the lawsuit, but during his campaign, he said that he supported the repeal of DOMA.
Closing Thought
I often disagree with proponents of same-sex marriage because they typically do not favor disbursing important social benefits (health care, etc.) to nonmarital relationships. Nevertheless, I support the recent rulings and legislation because the denial of same-sex marriage raises very compelling equal protection and fundamental rights concerns. The recent success of this movement, however, should not foreclose debate over the necessity of using marriage as the exclusive or primary vehicle for distributing social resources and benefits.
Related Readings on Dissenting Justice:
Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!
Advice to Vermont: Veto Your Governor!
Utterly Empty Rhetoric: Some Conservatives Argue That the Iowa Supreme Court Engaged in "Judicial Activism"
Iowa Supreme Court Strikes Down Gay Marriage Ban
Vermont joins three other states that recognize same-sex marriages. Last week, the Iowa Supreme Court unanimously held that a state prohibition of same-sex marriage violated the state constitution. The Connecticut Supreme Court issued a similar ruling last year. And in 2004, the Supreme Judicial Court of Massachusetts invalidated a state ban on same-sex marriage. Although the highest courts in Hawaii and California also invalidated those states' prohibitions of same-sex marriage, voters overturned those rulings by constitutional amendment.
Social Movements Activity
The dramatic movement on this issue results from a litigation strategy devised by same-sex marriage proponents. Vermont is the only state to legalize same-sex marriage through legislation. Although court involvement in the issue has led some commentators to make claims of "judicial activism," the rulings have reasonably applied existing state law doctrine.
President Obama has stated that he does not support same-sex marriage. And while marriage is typically regulated by local law, the constitutional issues the subject implicates can bring it into the purview of federal courts. Advocates, however, have largely avoided the federal courts given their conservatism. Nevertheless, a recent litigation seeks to invalidate a portion of the Defense of Marriage Act that denies equal federal benefits to same-sex couples who are lawfully married in their home states. The Obama administration has not responded to the lawsuit, but during his campaign, he said that he supported the repeal of DOMA.
Closing Thought
I often disagree with proponents of same-sex marriage because they typically do not favor disbursing important social benefits (health care, etc.) to nonmarital relationships. Nevertheless, I support the recent rulings and legislation because the denial of same-sex marriage raises very compelling equal protection and fundamental rights concerns. The recent success of this movement, however, should not foreclose debate over the necessity of using marriage as the exclusive or primary vehicle for distributing social resources and benefits.
Related Readings on Dissenting Justice:
Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!
Advice to Vermont: Veto Your Governor!
Utterly Empty Rhetoric: Some Conservatives Argue That the Iowa Supreme Court Engaged in "Judicial Activism"
Iowa Supreme Court Strikes Down Gay Marriage Ban
Tuesday, March 3, 2009
New Gay Rights Test for Obama: Gay Married Couples File Suit Challenging Defense Of Marriage Act
15 gay and lesbian individuals from Massachusetts have filed a lawsuit challenging the legality of the Defense of Marriage Act (or "DOMA"). All of the plaintiffs legally married after the state lifted its ban on same-sex marriage. The legislative change followed a ruling by the Supreme Judicial Court which held that prohibiting same-sex violated the state constitution.
What Is DOMA? What Do the Plaintiffs Want?
DOMA has two main provisions. One provision defines "marriage" in heterosexual terms for purposes of federal law. This means that any federal right or benefit available to "married" persons is restricted to opposite-sex couples. Accordingly, same-sex married partners cannot jointly file federal taxes, do not qualify for survivor benefits under social security or federal pensions, cannot include a spouse in a health plan for federal workers, and do not qualify for many other federal rights and privileges reserved for married individuals. The plaintiffs in this case only challenge the exclusion of same-sex married couples from federal benefits.
A second provision of DOMA provides that states do not have to recognize same-sex marriages that are legal in other states. In other words, the statute purports to allow states to deny "full faith and credit" (a constitutional concept) to same-sex marriages. The constitution, however, requires states to extend full faith and credit to "acts, records, or judicial proceedings" from other states. Under this concept, a marriage performed in one state is legally valid in other states; similarly, a judgment imposed by a court in one state has legal force in others. DOMA tries to undo this principle in the context of same-sex marriage. Many legal scholars doubt the constitutionality of this provision.
The Massachusetts federal lawsuit only seeks equal benefits for the plaintiffs. It does not ask the court to rule that prohibiting same-sex marriage violates the constitution. So, from that perspective, it is a "safe" case. Because the vast majority of the public disagrees with the legalization of same-sex marriage, it is unlikely that a court -- especially the conservative Supreme Court -- would issue a ruling striking down laws that prohibit same-sex marriage.
Test for Obama?
Obama has usually taken a favorable, even if inconsistent, position on glbt rights. He lost some credibility among glbt individuals, however, by opposing same-sex marriage and choosing Rick Warren to speak at his inauguration. Like Obama, Warren opposes same-sex marriage, and he campaigned in favor of an amendment to the California constitution that defines marriage in opposite-sex terms. Warren defended his opposition to same-sex marriage by arguing that it is the moral equivalent of statutory rape and incest.
Obama's Past Positions on DOMA
Although Obama currently favors the repeal of DOMA, his position on the subject has been somewhat inconsistent. During his campaign for Senate in 2004, Obama wrote a letter to the Windy City Times -- a glbt-themed newspaper in Chicago -- that takes a firm stance supporting gay rights issues. In the letter, Obama says he has always opposed DOMA, and he promises to vote to repeal the statute if elected:
During his presidential campaign, Obama took a position favoring the "complete repeal" of DOMA, including the full faith and credit provision. But in 2004, he stated that the full faith and credit clause does not require a state to honor out-of-state marriages that its law prohibits.
Obama's Current Position on DOMA
As for his current position, the WhiteHouse.Gov website contains the following language regarding DOMA:
Obama Pushed to Act on GLBT Rights
Although it remains unclear what position Obama and DOJ will take in the Massachusetts anti-DOMA litigation, this is yet another situation that will likely test Obama's stated support for glbt rights. In another pending litigation that challenges the discharge of a lesbian from military service, DOJ will soon have to take a position concerning the legality of Don't Ask, Don't Tell (or "DADT"). Furthermore, a House Democrat has reintroduced legislation that would repeal DADT altogether. Although Obama has stated that he opposes DADT and that he would seek to repeal it, he has directed military officials to "study" and report on the subject before he moves on the issue in Congress.
All of these recent developments push President Obama to act on glbt issues much more rapidly than he would have acted on his own. Historically, social movements have only created change (in either political direction) by agitating and engaging political leaders, rather than passively accepting their positions. If pushing Obama generates positive developments on gay and lesbian rights, perhaps other liberal movements will emulate glbt social movement actors and their allies and push for greater reform.
Related Readings on Dissenting Justice:
Legal Showdown Looming Over Don't Ask, Don't Tell: What Will the Obama Administration Do?
Don't Ask, Don't Tell Heats Up in Courts and in Congress
Obama Will Order Military to Study Whether It Should Stop Discriminating Against Gays and Lesbians
Don't Ask, Don't Tell, Don't Hold Your Breath
Stonewalling on Don't Ask, Don't Tell? No Action Until 2010
Robert Gates as Obama's Secretary of Defense: "More of the Same" for Gay Rights
Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!
Rick Warren versus Don Imus: Obama's Inconsistent Positions
The Fallacy of Obama's "Diversity" Defense: Rick Warren's Views Already Have a Place at the Table
Embracing Uncle Good-But-Homophobic: Why "Reaching Across the Aisle" to Rick Warren Does Not Feel Safe to Everyone
What Is DOMA? What Do the Plaintiffs Want?
DOMA has two main provisions. One provision defines "marriage" in heterosexual terms for purposes of federal law. This means that any federal right or benefit available to "married" persons is restricted to opposite-sex couples. Accordingly, same-sex married partners cannot jointly file federal taxes, do not qualify for survivor benefits under social security or federal pensions, cannot include a spouse in a health plan for federal workers, and do not qualify for many other federal rights and privileges reserved for married individuals. The plaintiffs in this case only challenge the exclusion of same-sex married couples from federal benefits.
A second provision of DOMA provides that states do not have to recognize same-sex marriages that are legal in other states. In other words, the statute purports to allow states to deny "full faith and credit" (a constitutional concept) to same-sex marriages. The constitution, however, requires states to extend full faith and credit to "acts, records, or judicial proceedings" from other states. Under this concept, a marriage performed in one state is legally valid in other states; similarly, a judgment imposed by a court in one state has legal force in others. DOMA tries to undo this principle in the context of same-sex marriage. Many legal scholars doubt the constitutionality of this provision.
The Massachusetts federal lawsuit only seeks equal benefits for the plaintiffs. It does not ask the court to rule that prohibiting same-sex marriage violates the constitution. So, from that perspective, it is a "safe" case. Because the vast majority of the public disagrees with the legalization of same-sex marriage, it is unlikely that a court -- especially the conservative Supreme Court -- would issue a ruling striking down laws that prohibit same-sex marriage.
Test for Obama?
Obama has usually taken a favorable, even if inconsistent, position on glbt rights. He lost some credibility among glbt individuals, however, by opposing same-sex marriage and choosing Rick Warren to speak at his inauguration. Like Obama, Warren opposes same-sex marriage, and he campaigned in favor of an amendment to the California constitution that defines marriage in opposite-sex terms. Warren defended his opposition to same-sex marriage by arguing that it is the moral equivalent of statutory rape and incest.
Obama's Past Positions on DOMA
Although Obama currently favors the repeal of DOMA, his position on the subject has been somewhat inconsistent. During his campaign for Senate in 2004, Obama wrote a letter to the Windy City Times -- a glbt-themed newspaper in Chicago -- that takes a firm stance supporting gay rights issues. In the letter, Obama says he has always opposed DOMA, and he promises to vote to repeal the statute if elected:
For the record, I opposed DOMA [ the Defense of Marriage Act ] in 1996. It should be repealed and I will vote for its repeal on the Senate floor. I will also oppose any proposal to amend the U.S. Constitution to ban gays and lesbians from marrying. This is an effort to demonize people for political advantage, and should be resisted....Although the 2004 letter states that Obama opposed the enactment of DOMA in 1996 and that he would vote to repeal it, a few months earlier in 2003, Obama completed a candidate's questionnaire in which he stated that he did not support the repeal of DOMA. In 2007, Bill Burton, a campaign spokesperson, tried to explain the shift, saying that "after hearing from gay friends who relayed to Obama how hurtful it was for the bill to be law, he supported its repeal. But this does not explain how he could oppose DOMA in 1996, support it in 2003, and oppose it in 2004.
When Members of Congress passed DOMA, they were not interested in strengthening family values or protecting civil liberties. They were only interested in perpetuating division and affirming a wedge issue....
Despite my own feelings about an abhorrent law, the realities of modern politics persist. While the repeal of DOMA is essential, the unfortunate truth is that it is unlikely with Mr. Bush in the White House and Republicans in control of both chambers of Congress.... [Note: All of the ellipses appear in the original text.]
During his presidential campaign, Obama took a position favoring the "complete repeal" of DOMA, including the full faith and credit provision. But in 2004, he stated that the full faith and credit clause does not require a state to honor out-of-state marriages that its law prohibits.
Obama's Current Position on DOMA
As for his current position, the WhiteHouse.Gov website contains the following language regarding DOMA:
Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.This position, which supports the equal provision of federal benefits to same-sex and opposite-sex married couples, is precisely the argument of the litigants in the Massachusetts lawsuit. Accordingly, the case could test Obama's position on the subject. The Department of Justice will represent the government, and DOJ lawyers will likely try to "win" the case by defending the legality of DOMA. But if Obama believes that DOMA is abhorrent and that it should be repealed, then presumably he could direct Attorney General Holder to seek some type of delay in or resolution of the case (such as a settlement) while he works with Congress to repeal DOMA.
Obama Pushed to Act on GLBT Rights
Although it remains unclear what position Obama and DOJ will take in the Massachusetts anti-DOMA litigation, this is yet another situation that will likely test Obama's stated support for glbt rights. In another pending litigation that challenges the discharge of a lesbian from military service, DOJ will soon have to take a position concerning the legality of Don't Ask, Don't Tell (or "DADT"). Furthermore, a House Democrat has reintroduced legislation that would repeal DADT altogether. Although Obama has stated that he opposes DADT and that he would seek to repeal it, he has directed military officials to "study" and report on the subject before he moves on the issue in Congress.
All of these recent developments push President Obama to act on glbt issues much more rapidly than he would have acted on his own. Historically, social movements have only created change (in either political direction) by agitating and engaging political leaders, rather than passively accepting their positions. If pushing Obama generates positive developments on gay and lesbian rights, perhaps other liberal movements will emulate glbt social movement actors and their allies and push for greater reform.
Related Readings on Dissenting Justice:
Legal Showdown Looming Over Don't Ask, Don't Tell: What Will the Obama Administration Do?
Don't Ask, Don't Tell Heats Up in Courts and in Congress
Obama Will Order Military to Study Whether It Should Stop Discriminating Against Gays and Lesbians
Don't Ask, Don't Tell, Don't Hold Your Breath
Stonewalling on Don't Ask, Don't Tell? No Action Until 2010
Robert Gates as Obama's Secretary of Defense: "More of the Same" for Gay Rights
Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!
Rick Warren versus Don Imus: Obama's Inconsistent Positions
The Fallacy of Obama's "Diversity" Defense: Rick Warren's Views Already Have a Place at the Table
Embracing Uncle Good-But-Homophobic: Why "Reaching Across the Aisle" to Rick Warren Does Not Feel Safe to Everyone
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