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Andrew Sullivan’s “Familiar Feeling” — and a Qualified Defense of Obama

May 14th, 2009 No comments

Well, we’re not even four months into the Obama Administration and already the LGBT community is frustrated at the pace of developments. And, really, who can blame us, after the betrayals of the Clinton Administration and the hostility of his successor who-must-not-be-named? Here’s Andrew Sullivan, in a sobering and angry piece on the Atlantic website (“The Fierce Urgency of Whenever”):

“I have a sickeningly familiar feeling in my stomach, and the feeling deepens with every interaction with the Obama team on these issues. They want them to go away. They want us to go away.

“Here we are, in the summer of 2009, with gay servicemembers still being fired for the fact of their orientation. Here we are, with marriage rights spreading through the country and world and a president who cannot bring himself even to acknowledge these breakthroughs in civil rights, and having no plan in any distant future to do anything about it at a federal level. Here I am, facing a looming deadline to be forced to leave my American husband for good, and relocate abroad because the HIV travel and immigration ban remains in force and I have slowly run out of options (unlike most non-Americans with HIV who have no options at all).

“And what is Obama doing about any of these things? What is he even intending at some point to do about these things? So far as I can read the administration, the answer is: nada. We’re firing Arab linguists? So sorry. We won’t recognize in any way a tiny minority of legally married couples in several states because they’re, ugh, gay? We had no idea. There’s a ban on HIV-positive tourists and immigrants? Really? Thanks for letting us know.”

Steve Sanders over at Sexual Orientation and the Law Blog expands on the point, noting that some of the things Obama’s promised to do might be accomplished without legislative action; arguably, he already has the executive authority to stop the discharges under the completely indefensible “don’t ask, don’t tell” policy.

These points are fair, and we’re right to be concerned about both the pace of change and, perhaps as important, the weakening or outright disappearance of rhetorical commitment on central issues, such as federal civil unions; the Employment Non-Discrimination Act; and the repeal of  DADT. But the story isn’t this simple.

Sullivan himself is of two minds on this, as are many of us. He prefaces the eviscerating remarks quoted above with the following:

“[I]t’s tedious to whine and jump up and down and complain when a wand isn’t waved and everything is made right by the first candidate who really seemed to get it, who was even able to address black church congregations about homophobia. And obviously patience is necessary; and legislative work takes time; and there are real challenges on so many fronts….No one expects a president to be grappling with all this early on, or, God help us, actually leading on civil rights. That’s our job, not his.”

So, where are we and how concerned should we be?

Let me start with Sullivan’s “familiar feeling.” I’m less concerned than he is (of course, I’m not about to get kicked out of the country, either), principally because Clinton and Obama are so different, tempermentally. Clinton, for all of his obvious intelligence, was in many ways an incautious, borderline reckless, man: “I’ll just issue an order allowing gays into the military. What could be hard about that?” Obama’s endlessly analyzed personality is that of the careful incrementalist, who listens to all parties, decides on a course of action (and sometimes reconsiders his position, as with yesterday’s about-face on the release of prisoner abuse photos), and then works patiently and tirelessly for consensus. Anyone who could herd the divas on the Harvard Law Review has some accomplishment to commend his approach.

So what looks the same from one perspective — the lack of progress on gays in the military — may be quite different in underlying significance. We don’t know what Obama is doing (or thinking) behind the scenes, but I’m willing to bet it’s…something.

Not exactly reassuring, is it? I don’t have any way of verifying my suspicion on this issue, and I might be totally off. (I really hope not. DADT is just nuts; made even more so now that same-sex couples can marry or civilly unite. That legal act is now a ground for discharge under the policy. My next post will be of a conversation I had with the unceremoniously brilliant Alex Nicholson, the founder of an organization dedicated to repealing the policy, Service Members United.)

But there is movement. Let’s put this into context. For approximately forever, the only traction gay issues had at the federal level had been as a wedge issue — against us. I’m talking about DADT and the Defense of Marriage Act, not to mention the Federal Marriage Amendment (which never had a chance of passage but was conveniently unsheathed whenever an election loomed), and of course the epidemiologically and ethically indefensible ban on HIV-positive immigrants.

Now we have a gay-inclusive hate crimes bill set to pass and be enacted into law, likely quite soon. (I don’t agree that this is entirely symbolic; but even if it were, symbols matter). “Sources” tell me that there is a place on the legislative agenda this year for the Employment Non-Discrimination Act. (Whether it will be trans-inclusive is less certain, but vital: Who most needs this protection? Not me.) ENDA has been around since, if I’m remembering correctly, the Truman Administration. Neither Sullivan nor Sanders discusses this issue, on which progress looks quite likely.

Meanwhile, lifting of the HIV ban is moving along — albeit at the glacial pace of the federal regulatory process. Again, Sullivan (first quoting):

“’The Department of Health and Human Services has submitted for OMB review a notice of proposed rule-making to implement this change.’

“Translation: we’re doing the bare minimum to make us look no worse than Bush, but we have no real interest in this and are letting the bureaucracy handle it, and we guarantee nothing.”

I think that’s too critical. HHS Secretary Sebelius acted within one week of her confirmation to get this long-overdue repeal moving through the process. As this site reports, the bureaucrats are following standard procedure here, needed to put into practical effect the legislative repeal (changing the law meant that HIV was no longer required to be on the list of excludable diseases; now it must be removed).

Imagine it’s the end of 2009: The hate crimes bill is law, so is ENDA, and the HIV repeal is lifted (in time for Sullivan, I sincerely hope; but as he points out, there are many others for whom the ban leaves fewer, or no, options). DADT continues to be assaulted, relentlessly, from many perspectives, but is still in place. Civil unions, flowering all over the country, lie beneath still-frozen soil in D.C.

Would we regard this record as one of success? Let’s see if we get there, first. And let’s continue the relentless advocacy that is finally, I believe and dare to hope, beginning to push on the hinge of history.

Equality Forum: The International Equality Dinner Starring the One and Only Gavin Newsom

May 3rd, 2009 No comments

Talk about your gala events! 

Well, for $200 a plate, Saturday night’s International Equality Dinner needed to be a fabulous, star-studded affair, and it was. Pennsylvania Governor Ed Rendell, a true ally of the gay and lesbian community since forever, was Honorary Chair and delivered his usually warm, amusing, and affirming speech. With no elections left to contest, Rendell was even more forthright than usual — and that’s something. But no one wants to talk about him, or even about The New York Times Company, winner of Equality Forum’s 7th Annual Business Leadership Award. This is an honor the Times richly deserves for: its fair and extensive coverage of our issues; its pioneering inclusion of same-sex unions on its “Weddings” pages several years ago; and the stalwart support of the LGBT community from such columnists as the Pulitzer-Prize winning Maureen Dowd and the known homophile Frank Rich. (Read this, if you haven’t already.)

The dinner also featured an open bar, great food (how, with so many people?), impressive videos by and about EF, and a huge and friendly crowd. But these aren’t the story, either.

No, it’s all about San Francisco Mayor Gavin Newsom, a true rock star of the LGBT movement. You could have heard a mozzarella ball drop during Mr. Charisma’s inspiring keynote address. But first let’s back up twenty-four hours.

On Friday night, I attended a screening of Pursuit of Equality, a documentary that focuses on Newsom and the “marriage month” that took place, by his direction, in San Francisco in early 2004. The film, produced and co-directed by Geoff Callan, Newsom’s brother-in-law, can be criticized as hagiography, but it captures and holds for posterity the vertiginous emotional journey of all involved: the mayor and his committed staff; the Repent America joes who camped out at City Hall in protest at what was going on; and, of course, the couples who traveled from (as the Mayor is liable to repeat) forty-eight states to become the first same-sex couples to marry, only to have their unions voided by the California Supreme Court.1

The film reminded me of the inspiration for Newsom’s act of civil disobedience (the best label for it, really). Just after taking office, he’d been invited by fellow Californian and now Speaker of the House Nancy Pelosi to attend the 2004 State of the Union address. The now (mercifully) Ex-President cooked up a stew of inane “priority items”: steroid use in baseball (I can’t make this up); the need for abstinence-only education; and, critically, the imagined urgency of passing a constitutional amendment banning same-sex marriage unions.

This wasn’t the America Newsom wanted any part of. In my interview with him, he credited his Catholic school education for implanting in him the simple dictum that couldn’t abide this divisiveness: “When one suffers, we all suffer.” Almost immediately upon his return from D.C., he asked his clerks what it would take to change the form to accommodate same-gender couples, and it was, well, almost nothing. (Are you reading this, Social Security Administration?) By then in office for just more than a month, Newsom allowed the Gay Marriage Parade to begin; the Grand Marshals were Phyllis Lyon and Del Martin, lesbian pioneers who’d been together more than fifty years. (The film captures Lyon’s terrific sense of humor; when given the standard counseling for newlyweds about family planning, the septuagenarian doubles over laughing.)

Within a few days, San Francisco was mecca for many long-term, committed gay couples. By homing in on a few couples, the filmmakers capture their sheer joy and disbelief at the dignity they’ve just been able to seize. Of course, that joy turned “to bitterest wormwood” (to quote the Mighty Thor) when the California Supreme Court put a stop to the party about a month later. In a strange and unsettling sequence, the film captures a lesbian couple running down the hall in a doomed effort to get their marriage licenses before word of the order reached the clerk. Confronted with a sign telling them they were too late, they performed the remarkable act of remaining in line and being denied. Other couples are seen reading the court’s decision, having it sink it, and — losing it.

Watching these emotional flame-outs, I felt compelled to ask the mayor on Saturday whether these reactions — which one can understand only so deeply, if not directly affected — had made him question his strategy. After all, he knew the likely outcome of this bold Experiment in Equality. Newsom, as articulate and comfortable a speaker as it’s possible to find, answered by sharing his view of the affirming side of it: “People left City Hall with a deeper sense of self and purpose. For that moment, they knew what it felt to be treated with dignity.”

Then I asked Newsom whether he felt he’d done enough to let people know what might happen. “I think people came in with their eyes wide open. They recognized that they were challenging the law, and were there to make a statement, to advance a principle.” He added that he hadn’t received a single email or letter from people saying “How dare you?”

I was using my few questions to gain some measure of Mayor Newsom’s depth and understanding of the issue’s layers, and I came away from the interview and the speech that followed convinced that he really does “get it.”

“Activist courts”? He wants more of ‘em, basically. Imagine what would  have happened in 1967 had we allowed a popular vote on interracial marriage. 70% of the population was opposed to it. The history of civil rights, he noted, is “hardly the majority celebrating the minority. No. Courts protect the minority in a constitutional democracy.”

In case you’re sighing impatiently at this elementary civics lesson, it’s worth remembering that equality opponents don’t acknowledge these points when it comes to this issue.

What about civil unions as some kind of compromise that might appeal to a politician with good instincts but a healthy sense of self-preservation (even more so in 2004)? After all, Newsom is now running for Governor of California. If anything, his view of this “virtual equality” substitute is more contemptuous than his take on those who oppose any and all gay rights. At least the latter group is consistent. Civil unions are “separate but equal.” He is unimpressed by events commemorating the 55th anniversary of  Brown v. Board of Education, where speakers “wax eloquent” about equality and the overdue  demise of  the “separate but equal” doctrine, only to embrace that same expedient when marriage equality is the issue.

Newsom, a “fifth generation Californian”  is impatient with his home state on this issue. “I never thought I’d say this,” he concluded, but “as Iowa goes, so goes the nation.”

  1. Many of these couples remarried after the California Supreme Court declared the law banning same-sex marriages unconstitutional. Will their marriages again be voided? I very much doubt it, but we’ll know within a few weeks.

Ho, Hum…. (Washington Passes Full Domestic Partnership Law)

April 17th, 2009 1 comment

In a story that attracted little attention outside of the state (except on gay news websites), the Washington State legislature on Wednesday gave final approval to a bill that expands the state’s existing domestic partnership registry to grant same-sex couples the same benefits as married couples. Opponents have sprung into action, but have little chance of undoing the legislation in a state that’s prepared to take at least this step.

What does it say about the state of the marriage equality movement when “virtual marriage” has become the compromise norm in a growing number of states? (New Hampshire, New Jersey, Oregon and California now have laws approximating marriage for same-sex couples.) And it’s a norm that elicits a collective “ho, hum” from all but the most apoplectic equality opponents. It’s still not true equality, of course. I recall hearing Andrew Sullivan say, a few years ago, that these “virtual equality” laws are really “pure” discrimination. That’s exactly right: Once equality of benefits is granted, all that separates the two “classes” is status, or a kind of legal caste. Here’s one opponent of the domestic partnership legislation, in a comment posted to the Seattle PI’s website:

“Your [sic] not equal. You’ll ALWAYS be two same sex people who THINK they have what I have being MARRIED to one man for 27 years. You will never be equal to me.”

She might have added: “So, there!” But she’s right, as long as the law continues this separation. Further, this verbal foot-stamp is in fact no different from that of more sophisticated equality opponents. Consider Maggie Gallagher’s statement, speaking of why civil unions were better (from her perspective) than marriage:

If the 15 words “Marriage in the United States is exclusively a union of one man and one woman” are placed in our Constitution, we can point to those who claim civil unions are marriages and say with confidence, “Not in the United States.”

So, there!

It’s likely for this reason that courts have started to look much more closely at arguments that civil unions and domestic partnerships don’t satisfy equality guarantees built into state constitutions. This is from the Connecticut Supreme Court’s marriage equality decision, Kerrigan v. Commissioner of Public Health: “Despite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society  than marriage.”

To even more pointed effect, In Re Marriage Cases (from California): “[R]etaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise—now emphatically rejected by this state—that gay individuals and same-sex couples are in some respects   “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.”

Of course, these courts are correct. So are the civil union commissions in both Vermont and New Jersey, both of which came to a conclusion even Sarah Palin could understand (if not articulate): Civil unions don’t confer equality. Yet I’m starting to like civil unions and domestic partnerships. They’re training wheels, of a sort; not for the couples, but for the larger society. By granting formal recognition and the (state-conferred) benefits of marriage to gay couples, they bring us much closer to equality in the short term, and simultaneously give root to the idea that these couples pose no threat to marriage. Soon thereafter, the citizens become more confident; the training wheels are removed, and full marriage equality is achieved. It’s already happened in Vermont, and I expect it to happen in New Jersey and New Hampshire soon.

Civil unions? Domestic partnerships? Ho, hum… in the short run.

The Worst Op-Ed, Ever

February 22nd, 2009 No comments

OK, probably not the worst, but pretty bad: This piece, which appeared in the Sunday (2/22) NY Times. Two well-respected think-tankers — one a marriage equality advocate and one an opponent — called for a compromise that would take some of the heat out of the marriage controversy.  I’m all for reconciliation, but “A Reconciliation on Gay Marriage” is fairly brimming with bad ideas.

Just when I was about to give this issue a break.

The authors suggest the creation of a federal civil union, that would recognize same-sex marriages or civil unions to the extent that such unions were recognized by particular states, but only if those same states allowed,  in their words, “robust religious-conscience exceptions, which provide[d] that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own.” Their proposal is both procedurally and substantively nutty.

Before I get there, a preliminary issue needs explaining. It’s odd that the federal government should be creating “federal” marriages or “civil” anything. Until the evil and desperately named “Defense of Marriage Act” (“DOMA”) defining marriage for federal purposes as the union of a man and a woman, Congress pretty much left the states alone to define marriage as they wished. Then federal benefits depended on whether you were married according to your particular state’s law. So, why not just repeal DOMA?

It’s not that simple. DOMA has inadvertently provided cover for states wanting to have their equality cake as long as gay couples don’t get to eat it, too: Since federal benefits are tied to marriage, the “civil union” (or domestic partnership) that several states have created don’t get you any kind of federal benefits, and wouldn’t — even if DOMA were repealed. Civil unions aren’t marriage, DOMA or no DOMA. But the federal goodies constitute most of the economic benefits of marriage.

Thus, the authors of this piece, David Blankenhorn and Jonathan Rauch, are right to suggest that something like a federal civil union would be needed to recognize the couples for purposes of granting benefits to couples in “civil union” states. (Couples in states recognizing full marriage equality don’t need this new “federal civil union”contraption.) But then their proposal goes seriously awry.

Procedurally, their measure is seriously underthought, even though they get paid to do nothing but think. What, exactly, do they mean by “robust protections”for religious organzations, and what would constitute “recognizing them”? And if the states are to be required to enact such provisions in order for their civil unions to “count,” why is a federal overlay needed? (Such a law, to the extent it conflicted with state laws, would supersede them in any event.) When I read this, I thought: I’ll bet neither of these guys, accomplished as they both are, has had any legal training. Turns out, I was right.

Perhaps these procedural issues could be dealt with if the underlying substance of their proposed protection for religious groups was sound. But it is not. As the authors recognize, the issue is not whether a church would have to perform a same-sex union if doing so would violate their tenets; everyone agrees that the First Amendment  shields churches from having to do so. Gay couples, please — pick another church, already.

The tougher questions arise once we move beyond the “sanctuary” of the church and its right to protection for belief there. Let’s discuss the two examples they use, where I strongly disagree with their conclusions. First: “What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner….?” Blankenhorn and Rauch believe that the organization’s decision not to provide such benefits should be protected.

The first issue is whether the work of the “auxiliary or charity” is so closely tied to the church’s core beliefs that it could, for example, exclude all non-church members from employment.  If so, then this issue would  not arise in the first place. But if the church can be forced to hire “non-believers” under pain of liability under state anti-discrimination laws, then why should sexual orientation be singled out for exemption? And, anyway: If the “auxiliary” (whatever that means)  is going to hire this woman in the first place, am I the only one who sees the cruelty in denying “spousal benefits” — which really means “health care benefits” — to her wife? Please tell me which church this is, so I can avoid even driving past it. (There’s another topic here about tying benefits to marriage in the first place, but this isn’t the time….)

The next example: “What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property”? Well, is the “non-profit” charging for the use of the property? If so, it’s squarely in the realm of the “secular” for this purpose and shouldn’t be allowed to discriminate any more than should a landlord whose “morals” counsel against renting to same-sex couples.

The provenance of the problem comes from the authors’ starting “agreement” that “many Americans of faith and many religious organizations have strong objections to same-sex unions.” Well, so do many “Americans (not) of faith.” We don’t protect the latter, and we shouldn’t protect the former if they wander out of the properly protected enclave of religious expression that the constitution clearly privileges.

To realize how crazy this is, substitute “race” for “sexual orientation” and see how the results play out: A church doesn’t believe in interracial marriage. This example isn’t from the year 1650; Bob Jones University didn’t allow interracial dating — never mind marriage — until 2000. And it tried to justify its position even in 1999, as seen in this letter:

“Bob Jones University [has] a rule prohibiting interracial dating among its students. God has separated people for His own purpose. He has made people different from one another and intends for those differences to remain.  Bob Jones University is opposed to intermarriage of the races because it breaks down the barriers God has established. It mixes that which God separated and intends to keep separate.”

So, what if Bob Jones hires a white secretary who then marries a black man. Should the church be able to deny benefits that are otherwise tied to marriage? To fire the secretary for her transgression of church law? I didn’t think so.

In fact, Bob Jones had long since lost its tax-exempt status for just the kind of racial policies that Blankenhorn and Rauch now defend (at least as a matter of right) in the case of sexual orientation.

La plus ca change, or something like that…

The Limits of Marriage Equality

January 7th, 2009 No comments

What is marriage equality for, anyway?

Is it for gays and lesbians to gain access to the many benefits of marriage?

Is it for us to be recognized as full and equal citizens, with the benefits best seen as a welcome “side effect”?

Maybe it can stand for something much broader – equality not as an excuse for the complacency that assimilation too-often creates, but as the impetus for broader engagement on the most fundamental issues of social and political justice.

Huh? Let me be less abstract.

Begin by imagining a time, likely in the not-too-terribly-distant future, when full marriage equality is achieved. This achievement will be vital and inspiring, because it will represent a crucial step in the recognition of our citizenship and – equally – our common humanity. Nothing that I’m about to add should be read as detracting from the importance of that step. Unless and until our relationships are accorded the full respect that only legal recognition can create, we’ll remain outlaws in many senses of that freighted word.

Was marriage (of all things!) the right place to stand? I think so, but at this point, it doesn’t matter. This is where we are standing, so we have to win. It’s that simple. We can’t allow our fellow citizens, often by simple majority vote, to deprive us of rights that under any reasonable legal analysis are fundamental. I won’t even bother discussing civil unions here, because their inability to deliver equality is too apparent for further discussion. (But in case you want such discussion, here’s what the New Jersey and Vermont commissions studying civil unions had to say; here, too, are the views of the California and Connecticut Supreme Courts.)

But marriage equality should do more than legally empower us: It should inspire us to look more broadly at issues of basic fairness, justice, and consistency. As Nancy Polikoff, a law professor at American University has pointed out in her excellent book “Beyond (Straight and Gay) Marriage,” sometimes marriage-lite alternatives such as domestic partnership have not only enabled the forging of broader coalitions, but have also created greater access to simple fairness in the process. For example, why shouldn’t any two adult household members be able to gain health benefits from the employer of one of them, if such benefits are afforded to married couples? Domestic partnerships can permit same- or opposite-sex couples who can’t or won’t marry (and why should they have to?) to achieve parity with married couples in specific areas where tying benefits to marriage is questionable, at best.

This recognition, in turn, invites broader questions, not only about the connection between marriage and benefits, but about the broader distributional choices involved in shoveling cash and prizes towards married couples while we ignore many deep social inequalities. To be pointed: Is it obviously more important to provide spousal social security death benefits that are not at all means-tested than it is to make a greater national commitment to the still-invisible victims of Hurricane Katrina? Are the tax benefits to joint filers of greater importance than a national commitment to health care? If so, make the case – let’s not just continue to assume that marriage should be as thoroughly subsidized as it is.

I hope that, once the marriage battle has been won, we can use our new confidence and freshly minted, full-class citizenship, to take up the battle for equality – not “just” marriage equality.