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

July 8th, 2010 No comments

In this week’s column at 365gay.com, 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.
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“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”

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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?
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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.

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“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.
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“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?”

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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!
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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.
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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!

jim

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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.

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

DOMA Defense? It’s Worse Than You Think

June 12th, 2009 5 comments

I returned from a pleasant afternoon away from work to find an unfolding horror story, detailed on my favorite blogs and news sources — the Obama Administration’s DOJ has just filed a motion to dismiss a legal challenge to the Defense of Marriage Act (“DOMA”).

Whether or not the administration was legally required to do so (a debated point, but let’s assume Lars Thorwald is right, and that a legally defensible law should be defended), opposition to the suit (Smelt v. United States) might make sense as a tactic; if the case ever did reach the Supreme Court, the prospects for success are doubtful. But once that strategy matter is decided, there are all sorts of briefs one might write. The simplest, and least harmful, would have been to challenge the case on standing (since the plaintiffs hadn’t “applied” for federal benefits); to the extent a more substantive argument were thought advisable, a standard-issue argument about judicial deference would have sufficed. At the other  end of the spectrum is the brief that was actually written.

Dan Savage was merciless. Andrew Sullivan was more measured, but deeply concerned. (See this summary of his view, from a few minutes ago.) Reading his and others’ take on some of the legal arguments, I thought: Wait! I’m a lawyer, so I’m going to read the brief so I can assuage my worst fears. And then go have a beer.

Well, this Friday night (and likely many more) are ruined. The brief is a jaw-dropping assault on gays and lesbians. Instead of the kind of measured and careful response I was expecting (despite the jeremiads I was reading), I got a brief that seems to have been intended to set the course of judicial progress on gay rights back many years. I wish I were exaggerating.

If I have the time and stomach, I’ll offer a more comprehensive dissection of the brief’s many transgressions soon. (In the meantime, check out this post at Independent Gay Forum, and this angry compilation of “worst of” quotes and aptly sarcastic headings by John Aravosis at AMERICABlog. For a first pass at the problems, check out the always-reliable Dale Carpenter.) Here, consider just two examples that I believe make a solid case that the Obama Administration has engaged in an unspeakable act of betrayal.

First, the argument that DOMA saves the federal treasury money. So would denying federal benefits to marriages celebrated on Tuesdays. This argument is so clearly inane that one barely ever sees it even in state law cases opposing marriage equality, especially after the Massachusetts Supreme Court in Goodridge gave it an unceremonious burial. Of course the feds save money by hoarding the goodies for straight couples. The issue is  whether the discrimination is justified. If it isn’t, then the available benefits should be distributed (even if slightly less) to all. This doesn’t pass what lawyers call the “red face” test (can you make the argument without blushing), and it’s distressing to see it here. It suggests that there’s no underlying act of discrimination to worry about.

The next example is far more harmful, though. Consider this paragraph from the government’s brief:

Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. After all, the federal government does not, either through DOMA or any other federal statute, issue marriage licenses or determine the standards for who may or may not get married. Indeed, as noted above — and as evidenced by the fact that plaintiffs have married in California — DOMA in no way prohibits same-sex couples from marrying. Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental — in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification.

Most of this doesn’t bother me too much, at least if I can bear to keep my lawyer’s hat on. A narrow, defensible argument is that DOMA doesn’t exclude anyone from marriage, but from benefits — and courts are deferential to the withholding of benefits (not where that withholding is based on clearly impermissible discrimination, but never mind).

But then comes the shocker, tossed off in the parenthetical sentence: Even if this case were about same-sex marriage, there is no fundamental right to that, either. But this is the $64,000 question: Is the right to marry the right to “traditional marriage” only, or to marry the person of one’s choice? In cases like Goodridge and In Re Marriage Cases (California), the courts have made a compelling, even moving, argument that it’s the latter. The Obama Administration seems to be conceding the issue, assuming that the Supreme Court cases that don’t address the issue directly can’t (or shouldn’t) be read to support the kind of expansive reading that led the Massachusetts and California courts to marriage equality.

Oh, and then there’s the last sentence, giving up the “suspect classification” argument that’s been successful in California, Iowa, and Connecticut. Discrimination against gays and lesbians is to be treated no differently than laws targeting minors: Is it rational (under any conceivable argument, even one not made)? If so, end of discussion.

I’m not even out of the introduction yet. The specifics behind these broad-brush arguments are, if anything, worse. (It appears I’ll have no choice but to dive back into this. Sigh.)

While writing this, I was surprised and heartened to learn that all of the heavy-hitting LGBT advocacy groups have issued this joint statement, condemning the brief. After a brief synopsis of the most pernicious legal arguments, the groups drove home their point with this angry closing:

“When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed.  We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.”

I’m congenitally more restrained than I fantasize myself to be. These groups are similarly  cautious, for reasons of institutional checks and access. But you’d have to be staggeringly  naive to expect anything good from the Obama Administration on LGBT issues after this.

Good night.

Update (Tuesday, 6/16 early am): This post has received a great deal of attention (for which I’m grateful). I thought  that those reading it might be interested in this new post, where I create a speech that I’d wish Pres. Obama would give (much more eloquently than I, of course). I think that only swift action on a number of “gay action items” or something like this speech, modeled after his “race speech” from early 2008, can repair the breach that’s been created with the LGBT community.