Posts Tagged ‘DOMA’

Me and Socarides

January 22nd, 2012 1 comment

I know it should be “Socarides and I,” but the post title is catchier. Anyway, I will be on NPR’s Radio Times tomorrow at 10 am. (Here’s the link; you can listen then, or later via podcast. On radio it’s 90.9 WHYY in Philadelphia. I think it’s also on satellite radio but I don’t know the time.) We’re discussing DOMA, Prop 8, Obama and marriage equality, maybe civil unions (I hope).

Richard Socarides, if you don’t know, was a high-level Clinton advisor and is currently a hugely important figure in struggle for LGBT legal equality. What you’re even less likely to know is that his father, Charles Socarides, was an infamous homophobe who for years fought back (unsuccessfully) against the decision by the American Psychiatric Association to delist homosexuality as a mental disorder. I’m guessing there were some interesting dinner conversations….(or maybe not!)

So It Begins: Military Same-sex Couples Already Facing Problems

September 27th, 2011 No comments

As I wrote in my previous post, the repeal of DADT peels away the mask on a problem just as it solves another: Once gays and lesbians are allowed to serve openly, their relationships snap into view. And then we can see, clearly, the devastating effect of the Defense of Marriage Act (DOMA) on the daily lives of these couples.

A regular reader and friend drew my attention to this story from Reuters. It details the difficulty that a lesbian couple — a couple with a six-year-old child and a baby on the way — faces when both parents are in the military. The odds that they’ll be placed together are much lower since they’re not married. They have to appeal under a hardship rule, and that’s less likely to be successful than a request to remain together submitted by a legally married couple.

In this case, the hardship request was denied. (But the request was made before Luz Bautista, the mom making it, was able to reveal that she was in a relationship.) So Bautista is about to be shipped off Illinois for a three-year posting that could be extended. The couple plan to swap custody every three months or so, which seems the best they can do under the circumstances. This is another stark example of how DOMA undermines the very family values it was supposedly implemented to protect. We should call attention to cases like this at every opportunity, and call upon the oppositionists to explain and justify such a result.

Meanwhile, until DOMA is either repealed (not any time soon) or declared unconstitutional (a better chance), advocacy groups should be holding the Obama Administration’s feet to the fire. We should insist that the hardship rule be interpreted in such a way as to render same-sex couples no less likely to be placed together than their opposite-sex counterparts. A directive so mandating should issue, forthwith. For now, stories like this one reveal the stark inequality of DOMA and draw the date of its demise ever closer.

Bautista: “The emotional toll. You can’t even describe it. It has been tearing us apart for the last couple of months.” Most parents would agree. And there’s no need for this trauma. Fix it, already.

Who’s Hiding Now?

September 23rd, 2011 4 comments

Since 365gay is shuttering after next Friday, I’ll be doing a lot more blogging back here. This is good, in a way, because I’ll be motivated to write on a broader array of subjects than I’d be covering for the past year or so. (I’m also told that the site will…disappear, along with all my work. I’m trying to figure out how to preserve it. Any ideas?)

Anyway, here’s today’s penultimate column; might as well reproduce the whole thing:

Who’s hiding now?

A couple of recent developments – one seismic, the other not so much – point to a tidal shift in the battle for LGBT equality and dignity.

The biggie, of course, is the long-overdue interment of “Don’t Ask, Don’t Tell.” You’d have to be made of a certain kind of dense mineral not to be moved by the stories that we’re hearing of soldiers who can now go about their jobs without fear of being outed, then ousted. And the squawking of those on the hard-right who’d threatened to get repeal undone are dying away like the gasps of an almost-extinct species.

Yet the repeal creates problems more complex than the one it solved. Once these gay and lesbian (but not transgendered) soldiers stand revealed in the fullness of their identity, it’s also going to become almost immediately apparent that they’re still not equal. While they now are allowed to exist, their relationships are not, because these soldier are not considered legally married for federal purposes. So all the benefits that straight service members take for granted – including housing for their families and spousal death benefits – aren’t available to sames-sex couples. Because of the Defense of Marriage Act (“DOMA”) that’s true even if the couple is considered legally married in their state of residence.

This glaring inequality has the potential to do some serious damage to the anti-equality forces. Soldiers not only enjoy tremendous respect, but they live in such stifling proximity to each other that these inequities can’t be missed. In short order, this new set of stories – told now neither by ex-soldiers, nor by soldiers concealing their identities, but by open and proud service members – will create a compelling narrative that should accelerate the momentum toward the repeal of DOMA. Equality and openness beget more of the same.

This could finish even better than you’d think it might. Because members of the military are constantly on the move, and often overseas, it won’t do to have their marriages recognized some of the time (when they’re in states that allow same-sex marriages) but not always (when they’re anywhere else). So the move to pass something like the Respect for Marriage Act (“RMA”) will also gain steam. Under that proposed bill, once you’re legally married in any state that allows it, you’d be forever deemed married for federal purposes. While the RMA still won’t force states to recognize marriages from other states, the pressure on them to do so will increase dramatically.

No other approach makes sense for the military – it would be a logistical nightmare for the government (and the same-sex couples) to move in and out of legal marriage as they changed location. This is already a problem with same-sex marriages under state law: try dissolving your Massachusetts marriage in Texas, for example. But the military setting brings the problem into sharp relief.

So the reality of our lives, as we push further and more boldly into the open, has created irresistible pressure for equality. Look no further than recent polling data on marriage equality for evidence that the message is getting through.

And that brings me to the second development, which is a sort of flip side. As our openness and equality become an increasingly tight and strong braid, our opponents find themselves on the defensive. That’s not a good place to be when you have no good arguments for your position.

So, once again, we had the Prop 8 opponents trying – but failing – to keep the videotape of the trial from being made public. (An appeal has been filed, of course.) And a couple of weeks ago, the lawyers working for the House of Representative on the DOMA case politely refused to consent to the videotaping of oral arguments before the federal appellate court. They gave no reason for their refusal, but let me suggest one:

They know their arguments are neither sympathetic nor compelling.

The more they say, the worse — the meaner, frankly — they seem. David Boies, one of the attorneys on the Prop 8 challenge, said it succinctly: “The witness stand is a lonely place to lie.” (Watch the video, especially around the 3:00 mark. Boies is devastating.) Indeed, the Prop 8 defenders’ witnesses were such a disaster that the release of the videotapes would be a huge boon for our side. Better to keep it – and all opposition arguments – under wraps. I’d be begging for the same result were I the lawyer representing them.

Who’s hiding now?

John Culhane is stepping up the pace of his own blogging at as his work on this site rockets toward its conclusion next week. You can also follow him on Slate, Twitter (@johnculhane), or through his legal scholarship. He’s also working on a book about civil unions, and invites your stories.

Marriage Equality: Three Updates

June 16th, 2011 No comments

This has been such a busy week for marriage equality that I’ve had trouble keeping up. Over at 365gay, I look at these three developments (with big emphasis on the first):

New York seems poised to pass a marriage equality law. But it depends on whether the Republican leadership in the Senate will let the matter come to a vote. If it does, it will very likely pass. If it doesn’t, then the Republicans will seem more out-of-step that ever, in a state where the party has maintained its moderate cast over the years — even in the face of Tea Party mania.

A judge in California rejected the ridiculous challenge to Judge Walker’s Prop 8 decision, which was grounded in the outer-space argument that, because the judge was gay and in a long-term relationship, he should have recused himself. An appeal, of course, is planned. The Prop 8 proponents’ best best is to avoid the merits, as the trial — and the proponents’ obsessive insistence in keeping the trial videotape out of the public view — itself clearly showed.

Also in California, the bankruptcy court declared DOMA unconstitutional as applied to a case where a legally married same-sex couple sought to file a joint petition. Only married couples can do so, and under DOMA, a valid state law marriage is nonetheless not recognized at the federal level. Most of the judges (20 of 24) signed the order.

Happy reading!

Should King and Spalding Have Withdrawn from the DOMA Case?

May 5th, 2011 No comments

All-Hit Radio(?)

March 1st, 2011 No comments

Tomorrow, I’m to be the guest for the first full hour of the Dave Scott Show. It’s available, live at 1 pm EST and via podcast thereafter, at this web address:

I’ll be talking about marriage equality, with an emphasis on the recent development in the Defense of Marriage Act cases, and probably lots more of interest to everyone, whether in the LGBT community or not: DADT repeal; the Employment Non-Discrimination Act, state and federal responses to bullying, and who knows what else.

Argentina and the Inexorable Logic of Marriage Equality

July 15th, 2010 No comments

Marriage equality is about to become  law in Argentina, a solidly Catholic (70%-90% of the population) country that also has preferences for Catholicism built into national law. Argentina thus becomes the first Latin American country to fully recognize the basic dignity of same-sex couples. Buenos Aires, here I come! (Well, probably not.)

With each nation, state, or city (such as Mexico City) that recognizes full marriage equality, we chip away at the reductive argument that “marriage always means the union of a man and a woman.” And the debates that lead up to such enactments continue to provide reminders that the opponents have no arguments. Consider these statements in opposition to the proposed law:

Cardinal Jorge Mario Bergoglio said “everyone loses” with gay marriage, and “children need to have the right to be raised and educated by a father and a mother.”

Everyone loses? Surely not same-sex couples and their kids. And same-sex couples are already raising and educating children. Marriage rights just provide them with a better environment in which to do so.

“Marriage between a man and a woman has existed for centuries, and is essential for the perpetuation of the species,” insisted Sen. Juan Perez Alsina, who is usually a loyal supporter of the president but gave a passionate speech against gay marriage.

Passionate but misguided. That marriage between a man and a woman  is “essential for the perpetuation of the species” is a defensible, though contestable proposition. What’s essential is something called “sex”; perhaps marriage does civilize people and pass something vital along to the next generation, but even to the extent that’s true, none of that is affected by allowing same-sex couples to marry.

With every nation, state, and city that recognizes the basic equality of its citizens by legislating same-sex marriages, bald assertions about what marriage “must” mean becomes harder and harder to speak with a straight(!) face.

Meanwhile, we can’t even get Congress to consider repealing DOMA.

The Obama Administration Must Appeal the DOMA Decisions

July 15th, 2010 1 comment

In today’s column over at (not gay on Feb. 29?), I argue that the government needs to appeal the decision by a Massachusetts federal district judge that ruled section 3 of DOMA unconstitutional.

I even think that the case might come out favorably even when it reaches the  Supreme Court.

Parsing the Two DOMA Decisions

July 9th, 2010 2 comments

Big, good, and mostly expected news: Federal district court judge Joseph L. Tauro ruled tonight, in two separate cases (Commonwealth of Massachusetts v. HHS and Gill v. OPM), that section 3 of DOMA is unconstitutional. It’s late, and I’ve just slogged through all 75 pages of the decisions, but there are a couple of things that really jumped out at me.

First, I was reminded that these cases were brilliantly targeted at the weaker part of DOMA. Section 3 reads:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.

In other words, DOMA takes the step — the historically unprecedented step — of creating a federal definition of marriage, which it then superimposes on the states’ own definitions, effectively limiting their legal and social effect. The two cases were brought by (1) the Commonwealth of Massachusetts itself; and (2) several legally married, same-sex couples living in Massachusetts. Their constitutional claims were quite different, but (as I’m about to show), connected in one vital respect.

Let’s start with the couples. Their claim is simple, elegant, and really irrefutable: Granting federal benefits and other rights to some married couples, but not to others, is about as clear and indefensible an exercise in the denial of equal protection as can be imagined. In Massachusetts, both opposite- and same-sex couples can marry, but the straight ones get the goodies and the gay ones don’t.

The judge didn’t find any need to apply any kind of heightened scrutiny to the case, because he found that the law didn’t even have a rational basis. In a case that repeatedly cited Romer v. Evans, the court ran through the purported congressional justifications for DOMA in record time (in part because the Obama defense team had abandoned them): encouraging procreation and child-rearing in the optimal setting, and conserving scarce resources. The other justification, which amounted to little more than “we must avoid the apocalypse” (“traditional notions of morality”) was brushed aside as insufficient to ground legislation, per both Romer and Lawrence v. Texas.

The one new justification that the government raised was protection of the status quo. The court demolished — I mean, demolished — this argument, noting that the “status quo” had been for the feds to recognize states’ definitions of marriage, so that DOMA radically changed that status. And the practice of recognizing, and deferring to, local law on marriage, had been unaltered throughout our history, even in especially contentious cases such as interracial marriage. That practice, in turn, was grounded in the long-standing recognition that marriage and family law is one of the most fundamentally state law issues of all.

In short, the court stated what everyone knows: DOMA was a panicked, hastily crafted law designed to shut down the marriage equality movement before it took hold. Rationality and deference to (what Congress considered) bad state law had no place in the discussion. If equal protection under the law means anything, it’s that laws fencing out classes of people need at least a plausible justification. This provision of DOMA has none.


The equal protection argument used to strike down DOMA in the couples’ case turned out to be pivotal in the Commonwealth’s case, too. This was perhaps the most surprising aspect of the court’s decision.

As to section 3, DOMA doesn’t state a legal basis for Congressional action; so the government had to come up with one. It chose the spending clause, which allows Congress to tax and spend for the the  general welfare. (DOMA is (to an extent) about benefits.) The other side of that coin, the court stated, is the Tenth Amendment; it reminds us that Congress only has those powers enumerated in the Constitution. So while respect is due Congressional determinations of their power to legislate, courts get to decide whether an enumerated power can fairly said to have been exercised, or whether the principles of federalism reflected in the Tenth Amendment require striking down the law.

The spending clause discussion turned out to be simple, because the Supreme Court, in a 1987 case, established some clear limitations on Congressional ability to tax and spend. One was fatal here: “the legislation must not be barred by other constitutional provisions.” Since the court had ruled in the couples’ case that DOMA violated the guarantee of equal protection, that limitation was exceeded. (The court also noted that many of the federal laws affecting “spouses” had nothing at all to do with benefits, or spending.)

The court could have stopped there, but didn’t. What followed was a textbook exegesis of “the new federalism” that the Supreme Court has aggressively pursued (almost always by 5-4 majorities) over the past fifteen years. By way of background, the court sailed through the history of marriage regulation, beginning in the pre-Constitutional period. It’s always been a state matter, Judge Tauro noted, so much so that whenever anyone in Congress thought that family law matters might be worth regulating, a constitutional amendment (that would vault over any other constitutional issues) rather than legislation was considered. Until DOMA.

The Supreme Court, too, has assumed that domestic matters were beyond federal power to regulate; in a recent case criticizing an expansive view of the commerce clause, the Court feared that such an approach could lead to federal regulation of “family law and other areas of traditional state regulation.

The government can defend that it’s not making Massachusetts do anything, and maybe that argument will prevail — the Court consistently distinguishes receipt of benefits (like the Medicaid ones that Massachusetts can’t get for its same-sex spouses as it can for its opposite-sex marrieds) from directly forcing an action. But the federal tentacles reach so pervasively throughout the state’s own administration that the Supremes might find a line from benefits to commandeering has been crossed. Particularly unsympathetic is the federal effort to stop VA-funded cemeteries in the state from burying the spouses of service members next to their deceased partners.

And even if the Supreme Court — where this case is surely headed — thinks it can make the benefits/commandeering distinction as a matter of logic, to allow this level of intrusion into state’s affairs would be hard for this Court to do with a, er, straight face. (That’s not to say it would surprise me, especially from this group of activist, expedient-driven justices.) And it still doesn’t get around the equal protection problem, which seems to me unshakeable.

Good night!

A Rose by Any Other Name….? (and an angry email)

July 8th, 2010 No comments

In this week’s column at, I address the issue whether civil unions should be considered a serviceable political compromise for the time being, while we await full marriage equality. As you might expect, lots of comments have come in already.

But I wanted to share a very different sort of comment; one that you wouldn’t often see on that site because it’s so negative. Here’s the text of an email I received today; you should read the 365 post first for context, although I think he fairly (not selectively) quotes me. I’ve highlighted my language from the column for ease of reference:

Regarding the article, “Culhane: Should we hate civil unions, or love them?“, I have a few thoughts.

Hawaii Governor Linda Lingle stated she took longer to decide this issue of ‘Civil Unions vs. Marriage’ than any other brought before her.And that she had decided to veto the civil union bill after much deliberation.

“With her body blocking the state seal – with its (loosely translated) motto of “The life of the land is perpetuated in righteousness” and its depiction of the Goddess of Liberty – Lingle issued the by-now boilerplate blather about letting the people, rather than the legislature, decide. It’s as though she’d just been transported to a place where the rules of representative democracy had been suspended”

The whole of the statement you made, as seen above, reeks with biased slander and a hint of self aggrandizement. Is “The Life of the Land is Perpetuated in Righteousness” the translation of “Ua Mau Ke Ea O Oka Aina I Ka Pono” or not? If it is, and it is according to some those local boys I’ve known for years, your veracity has come under scrutiny.

Now, this “…boilerplate blather about letting the people, rather than the legislature, decide…” is the Governor simply doing her job in a representative democracy. So, what are you trying to say here…..we must leave the state legislature to do their job fulfilling their responcibilities under a representative democracy but, as Governor, she must kowtow to the wishes of the State Legislature!?! Surely you’re not trying to tell us that the Governor isn’t the representative voice of all the States population!?! Her job would be, as the State voice under a representative democracy, to consider what we the people want as a whole. Doesn’t this make sense to you at all?

But I want to focus on something the governor said during her press conference: Civil unions are marriage ‘by another name.” Since she opposes same-sex marriages (she didn’t say why), she also opposes civil unions.

“Civil unions are marriage ‘by another name.” There is no need to redefine the word marriage and a definite need to distinguish between a ‘civil union’ and a ‘marriage’. You may think there is some kind of underlying ill-will towards gays or perhaps some kind of homophobia in play. But the fact is you couldn’t be farther from the truth.

It has become apparent that there is an agenda being pushed upon the majority of the population of America and it is happening on the State level. Here is where the push began…when those who call themselves gay wanted what married people have…and I’m not talking about all the financial and other benefits that go along with being legally married. The simple truth is, and I’ve had enough gay friends to know, they want the title of marriage because they see their relationships as the same as those who are married. But they’re not! I’ve seen more gay sexual addicts than I’d care to shake a stick at….it’s like the ‘lust rheostat’ is turned on high and stuck there. It’s all about being “Out”…about being “In Your Face”…about “Being Gay and Proud Of It”. And most of all, it’s about bringing down the established white christian morals that have stifled this country for so long.So, you might want to start writing the truth.

“So how can it mean the same thing as marriage? Lingle might be right to say that civil unions are marriage “by another name,” but names have weight. The word “marriage” is particularly totemic, as we can emphasize by this table-turning little experiment: Imagine a suggestion that same-sex couples’ unions be called marriages, but that opposite-sex couples would be granted the right to enter into civil unions. Would anyone then really want to suggest that the name wasn’t terribly important?”

You’ve gt to be kidding? I would be willing to bet almost anything that, if the tables were turned, it wouldn’t be such a big deal!  But, of course, we’ll never know will we! So, this little point is irrelevant!

Perhaps nowhere was the importance of this distinction better understood and deconstructed than by the Massachusetts Supreme Judicial Court. Writing in response to the question whether the legislature might carry out the court’s mandate of conferring marriage equality on same-sex couples by creating the civil union, the court said this of the proposed bill:
[I]t is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. The denomination of this difference…as merely a “squabble over the name to be used” so clearly misses the point that further discussion appears to be useless.

Are you cherry-picking bits of information and wording it in such a way as to reflect you will and desires? This is what I found:

“In a 50-page, 4–3 ruling delivered on November 18, 2003, the Massachusetts Supreme Judicial Court found that the state may not “deny the protections, benefits and obligations conferred by “civil marriage” to two individuals of the same sex who wish to marry.” Chief Justice Margaret Marshall, writing for the majority, wrote that the state’s constitution “affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens,” the state had no “constitutionally adequate reason for denying marriage to same-sex couples,” and “The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference.” On the legal aspect, instead of creating a new fundamental right to marry, or more accurately the right to choose to marry, the Court held that the State does not have a rational basis to deny same-sex couples marriage on the ground of due process and equal protection. (the court gave the State Legislature 180 days to change the law to rectify the situation)

She said “It forbids the creation of second-class citizens….”! Big difference, wouldn’t you say!?!

I must say, Mr. John Culhane, Professor of Law, Widener University, I would not want to be a student sitting in your class where I’d be fed an assortment of lies served up by a biased, or should I say prejudice, bigot!



Well, I know I would need a thick skin when I embarked on a life of blogging. This is the kind of thing you get. Most of what “jim” said is, I think, self-refuting, and I want to turn to reading and then analyzing the DOMA decisions that came down this evening, so I’m not going to get into it in detail. Just a very few quick points:

(1) There was Goodridge, which jim summarizes, and then there was the Opinion of the Justices in response to a question presented by the state senate. The latter is what I was quoting.

(2) There are plenty of sex addicts — men, women, straight and gay. No one suggests that the presence of sex addicts in the heterosexual population should lead society to ban their marriages, so why is it different for gay couples? Note the implicit homophobia in the attempted demonization of gay men (what about lesbians, by the way?) while ignoring similar, heterosexual impulses.

(3) jim claims to have gay friends. If so, I hope he’s open enough with them to share this email. If he does, he could learn something through their responses — if they’re not so pissed they simply walk out on him.


Look for my analysis of the DOMA cases later tonight, or tomorrow morning.