Defending the Indefensible Actions of Our Not-Always-Friendly Friends
June 16, 2009by terrance
Friends will let you down
Friends won’t be around
When you need them most
Where are your friends?
Friends are hard to find
Friends, yours and mine
Im talking ’bout your friends
Jody Watley ~ “Friends”
No, not me. I’m not sure I could defend the Obama administration’s defense of the Defense of Marriage Act , even if I wanted to. However, Chris Crain — a blogger whose writing and thinking I respect even when I disagree — does so.
But he does so in a way that leaves me with more questions than answers.
First and foremost, candidate Obama did not make any commitment that I’m aware of to refuse to defend the constitutionality of the Defense of Marriage Act. That would have been an extraordinary promise for any presidential candidate to make about any piece of duly adopted legislation, and yet I don’t know of a single time the question was even put to Obama or his competitors, or where he was even asked the more general question of whether DOMA is unconstitutional.
There’s obviously a big difference between believing a law is wrongheaded or unfair or even discriminatory, on the one hand, and believing it is unconstitutional, on the other. Since Hillary Clinton defended her husband’s decision to sign DOMA into law, and only favored half-repeal, it’s fair to conclude she agrees with the Obama DOJ that DOMA’s deficiency is a matter of policy, not constitutionality. Ditto the Human Rights Campaign, since “the nation’s largest gay rights group” chose only to score the candidates on whether they support DOMA’s half-repeal — thereby equating Clinton’s views with Obama’s.
If this question of DOMA’s constitutionality is so crucial and fundamental, then why did everyone — all of us — fail to raise it during the eons-long presidential campaign? We thought about DOMA enough to make a big deal — or not — about half-repeal vs. full repeal, and others questioned Obama about the positions the DOJ might take in defending Don’t Ask, Don’t Tell in court. So why didn’t we ask for a commitment about refusing to defend DOMA as well? And if we didn’t, maybe we should take a deep breath before accusing Obama of treason for how his lawyers ultimately answered our unasked question — in a lawsuit that most gay legal experts wish had never been brought and hopefully will get dismissed.
I understand the political reasons for wishing this lawsuit had never been brought will get dismissed. (Note, I’m commenting here with the disadvantage of being several days behind in news I used to be able to keep up with. A serious handicap for a blogger.) It’s unlikely that we would win if it made it all the way to the Supreme Court, and there’s a reluctance to adopt any strategy that might cause a backlash even as we’re approaching a tipping point in parts of the country.
It does seem odd that the question of constitutionality hasn’t been a major point. When the Obama administration’s lawyers are using essentially the same arguments used in Loving v. Virginia, the constitutionality issue seems clear.
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.
I’m no legal scholar, but the fourteenth amendment has already been mentioned in discussion about challenging the California ruling in the Supreme Court. And while the Court of Loving v. Virginia might not have been able to conceive of same-sex marriage, and thus the court did not qualify its opinion to prohibit same-sex marriage (though the majority opinion could just have easily read “the freedom to marry, or not marry, a man or woman of another race,” instead of “a person of another race), the same principles could be applied to sexual orientation without making any great leaps.
Chris’s answer makes sense too.
I will answer my own question. Because anyone with even a passing familiarity with gay politics in our nation’s capital knows that HRC long ago agreed with its cronies in the DNC and on the Hill not to even begin pressing for DOMA repeal until a whole laundry list of other (far less important and less controversial) legislation is adopted.
It was when Pelosi was making her remarks that the my question started forming in my mind because, of the three broad topics she introduced to cover a wide range of initiatives, one of them was strengthening families. Under that heading, she talked about education and healthcare as two means of strengthening families. You can probably guess where I was headed. Not for nothing have I spent the last few years blogging about the myriad ways our families get left out of the very concept of families and thus get none of the protections other families are afforded. We’re not even eligible for most off them.
Childcare. Family leave. Health insurance. Even something simple simple as joining a freakin’ gym isn’t so simple when you have to make the case that you qualify as a family, when various and sundry laws say you actually don’t. For example, I just started working as an independent consultant. I’m buying my own health insurance as a result (not cheat, by the way, but I’ll talk about health care later). If I were legally married to my husband, I’d have the option of being carried on his insurance. But right now that’s not possible. That’s just one of many issues where LGBT families get the short end of the stick.
So I raised my hand, and when the microphone came to me, I managed to get something close to this out:
As a working father of a four-year-old, with another on the way [Ed. Note: At this point the Speaker gave me a big smile and said “Congratulations!”], and as a gay dad I’d like to hear more about strengthening families. How do we do it in a way that strengthens all families, and that recognizes the reality of diverse families; families where both parents work, families where parents aren’t married to each other, families where the parents can’t marry each other, single parents, etc.?
I’m not sure if the way I opened my question disarmed her, but I’d swear the Speaker blinked and even stammered for a minute, like she wasn’t expecting that one. (Even though my question came close on the heels of one about “Don’t Ask, Don’t Tell,” which the speaker favored getting rid of.) But it was only a minute. She quickly righted herself and gave an answer that basically, and I’m paraphrasing here until the transcript is up, that boils down to this: we should already be there, and we can get there by supporting the current agenda. Put another way, we can get to a more progressive place where we will strengthen all families, but not yet.
Yet we’re not in exactly the same place. Somehow, despite the anti-gay fervor of the previous administration, we face better odds than previous civil rights movements faced when a sitting president did what was right, even if it wasn’t politically “safe” or expedient. We have arrived at a point where a growing number of states have legalized marriage equality, where many people are already living with the reality of marriage equality, and public opinion has shifted dramatically in favor of marriage equality since it first hit the national radar in 1994. And signs indicate the trend is likely to continue in our favor.
It comes down to a decision between what one believes is right and what one believes is politically expedient. The current trend, even among Democrats, is to sacrifice justice for the sake of political expediency. This is partially out of a desire to retain the support of voters who, while supportive of Democrats on many or even most issues, are more conservative on the ideal of marriage equality or gay issues in general.
The momentum may be in favor of marriage equality in the long run, but right now supporting marriage equality means bucking the majority of voters. But failing to speak out and act where progressive movement towards equality is possible is to reject the opportunity to speak to those voters who could be moved by leaders who can make the case to them.
Yes, this is work that must take place on the grassroots level for the most part. But gay people have been doing this every day for at least a few decades now, and the progress we’ve made is evident in the narrowing gap between support and opposition to marriage equality, and in the percentage of younger voters who support marriage equality.
However, we’ve been doing this work without much from Democratic leaders beyond the encouraging words we hear during campaigns. When the time comes to take a risk and enact policy that advances equality, Democrats freeze up. They may want to do it. They may believe its right. But they are afraid of the political risks involved, which stem from bargains Democrats made on the path to gaining the White House and a majority in Congress.
At the end of the day, LGBT voters have to ask ourselves if that’s enough.
…We do not have a “fierce advocate” in Washington. At best, we have nervous, reluctant support – of the variety we’ve settled for in the past, when we were just relieved to have people in office whom we thought would not legislate against us, and block the worst of what the opposition wanted to inflict on us. But there’s a limit to that, when presented with an obvious moment to place yourself on the right side of history.
…It may be that Democrats – having just regained power after an extended stroll through the wilderness – fear what Johnson predicted in the 60s when he signed the Civil Rights act of 1965, will come true again: he said, “we just lost the south for a generation.” But Johnson also had some advice for civil rights activists of his time. He said, “I want to pass and sign your legislation, but you’ve got to make me do it.”
And are we the same country regarding sexual orientation now as we were regarding race then? Would Democrats risk losing after the gains made in the recent election?
More to the point, do they stand to lose anything by staying out of the fight until the risk is minimal and victory is all but assured? Is there a consequence for delaying the choice to get on the right side of history, and thus delaying justice along with it, until last page is almost written, the chapter nearly finished, and the ending all but known?
The day we begin asking ourselves these questions has come.
The day will come when we answer them for ourselves, and our friends.
Chris is also right that the examples of direct action described by his co-blogger, Andoni, need to be directed not just at the White House but also “your member of Congress, the Democratic leaders in both the House and the Senate, and our dear friends at the Human Rights Campaign,” and any of other LGBT organization to whom the above is applicable.
Why do we keep having trouble getting our friends to act like our friends once they’re elected? Especially after we’ve written checks, volunteered, pulled levers and helped them get elected? Because they know we will continue to do so as long as they sound like our friends before election day, even if they don’t act all that much like our friends after election day.
We have trouble getting our friends to act like our friends once they’re in office, because they have nothing to lose when they don’t.
How many of us have them?
Ones we can depend on?
How many of us have them?
Before we go any further, lets be
Whodini ~ “Friends”
We need to change that. But first, we have to ask ourselves: What do we stand to gain from these kinds of friends?