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Barney Frank, Re-Reconsidered?

September 18th, 2009 No comments

Quite understandably, Barney Frank has his defenders — even when he takes an action that, at least on the face of it, seems inexplicable to the gay community of which he’s such a vital part.

So I wasn’t surprised when Chris Geidner (Law Dork) stood with Frank when he decided not to support NY Rep Jerrold Nadler’s just-introduced bill, The Respect for Marriage Act, to repeal the Defense of Marriage Act (“DOMA”). I fired away at Frank, which provoked an e-mail response from Geidner. He wrote:

I just think it’s naive at best (and I know you’re not naive) for people to diminish the sensible statement that Barney made about this provision causing political problems for a DOMA repeal bill.

Please, tell me why I’m wrong.

Well, I’ll try. As usual, though, Geidner does have a point, even if, in the end, we have a difference of opinion as to whether Frank should have declined to co-sponsor the bill. Some background:

The Respect for Marriage Act goes beyond undoing DOMA’s two provisions, and the “extra” provision is the one that Geidner, and Frank, think spells political trouble. The Act adds a section that would ensure that a same-sex couple, once validly married under the law of any state, would gain — and keep — federal recognition of their union, even were they to move (or visit, I guess) another state that denied marriage equality. It would also, if I’m reading it correctly, allow those who leave the country to marry (by going to Canada, for instance) to have their marriages recognized by the feds if the couple then took up residence in, say, Iowa.1

Geidner, in an earlier post, thought that this so-called “certainty provision” is unique. I’ve not found evidence to the contrary, but that is likely because the situation hasn’t arisen in exactly this way before. DOMA having confused the relationship between the feds and states when it comes it marriage, it’s not surprising that efforts to restore the status quo ante (where the federal definition of marriage follows state law) are complex, perhaps novel.

Geidner agrees with Frank on the point that the certainty provision will be attacked for forcing one state to recognize a same-sex marriage valid in another (even though it doesn’t). I’m sure they’re right, but the repeal effort will be attacked with or without the certainty provision, and on essentially the same ground. By seeking to remove the DOMA provision that tells states they needn’t recognize same-sex marriages performed in other states, Nadler et al. will be accused of doing that anyway (even though that provision of DOMA was never needed for a state to refuse recognition of a marriage celebrated in a sister state). Here‘s what he said:

“Mr. Frank knows better than anyone that our opponents will falsely claim that any DOMA repeal bill ‘exports marriage’ in an effort to generate fear and misunderstanding,” Nadler said. “But the dishonest tactics of our opponents should not stop us from aggressively pushing to end this horrific discrimination now, as is the consensus of the nation’s top LGBT groups who all support this approach.”

And on the merits, of course, life without the certainty provision would become a legalistic morass, as couples moving from pro- to anti-gay marriage states would have no clear answers to apparently simple questions, like: Can I file a joint federal income tax return? Is the incrementally greater political risk (conceding that point for now) a sufficient reason to cause a pile-up of needless lawsuits and confusion?

Of course, I don’t know what’s going on behind the scenes; but (perhaps naively)  I don’t much care. To me, it sends a terrible message for Frank —  who, again, was willing to sponsor a bill to legalize pot that stands less than no chance of passing  any time soon — to be refusing to sign onto this repeal of DOMA. But I respect Geidner’s view. In his first post, he had this much exactly right:

These discussions and debates are the inevitable result of many people of good will attempt to correct the damage done in 1996 with DOMA’s passage.  In the coming days…, expect to be hearing a lot more about these and other issues relating to any possible DOMA repeal.  Regardles of views on this or that provision, though, I want to remain clear that these are debates over strategy and tactics, not in any way an attack on the folks working to right this wrong.

And in that spirit, I want to make clear that I see Barney Frank as someone “working to right this wrong” — however much I disagree with how he’s going about it.

  1. It might also be read to allow the Canadian-married couple to get federal benefits wherever in the U.S. they resided.

The Perry Case: If This is the Evidence They’re After, No Worries

August 19th, 2009 No comments

Judge Vaughn Walker isn’t fooling around. Today, in the case challenging the constitutionality of Proposition 8 (Perry v. Schwarzenegger), he rejected requests by both various LGBT advocacy groups and a pro-Prop 8 group to intervene in the litigation.  Law Dork has a typically clear summary of the ruling here. The judge also appears to have set a remarkably early date for trial — January 11, 2010!

Too bad that this truncated timeline won’t give the Proponents of Prop 8 much time to pursue what is surely one of the most quixotic — even counterproductive — discovery efforts I’ve ever seen.

In response to Judge Walker’s order for specifics on what evidence they’re hoping to gather, and what it might prove, they offer these two statements (again, h/t to Chris Geidner at Law Dork — I can’t find this document on-line). Here they are (brace yourself!), followed by my analysis:

We will…develop evidence that homosexuality is not immutable by analyzing marriage and domestic partnership records from California. . . . From the domestic partnership records, we will compile a list of all the individuals in California who have entered a same-sex domestic partnership.  We will then cross-reference these names with the marriage records to identify individuals were previously or subsequently married to a member of the opposite sex.

Proposition 8 promotes the natural and mutually beneficial bond between parents and their biological children by encouraging parents to raise their biological children.  We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means.  We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records).  We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.

The first of these is comically absurd, and might tend to prove the opposite of what the Proponents hope. The second is a fascinating mix of the unintelligible and the irrelevant.

As to the first: I have no idea how many same-sex couples now married or in domestic partnerships were once married to members of the opposite-sex, but their “conversion” surely doesn’t prove that sexual orientation is “mutable.” Indeed, given the societal pressure on gays and lesbians to conform to heterosexual norms, including marriage, evidence that some moved from straight to gay relationships only serves to reinforce that self-abnegation and denial are painful and, for some, impossible to sustain. In short, migration in this direction might reinforce that sexual orientation is stronger than even powerful forces in the other direction — immutable, perhaps?1 And am I the only one who finds interesting that the Proponents aren’t offering to find evidence of people moving from gay unions into straight ones? Wouldn’t that at least be more logically relevant? Not if you don’t have any exhibits to produce.

I’m not sure what point the Proponents are trying to make in the second proposed evidentiary expedition.  In addition to the possible concerns about privacy that Geidner has raised, there’s the more basic question of what the evidence  would show. Same-sex couples, just like single people and members of opposite-sex couples, already have the legal right to use technological assistance to reproduce. Nothing about Proposition 8 affects that right one way or the other. Moreover, if  “many are [already] satisfying these desires with the assistance of technology or by other means,” shouldn’t the law step in to help the kids born through such means by recognizing their parents’ relationships? I don’t get it.  And what about foster and adopted children? It seems the Proponents are tacitly acknowledging that recognizing the relationships of parents of these kids would make sense.  Otherwise, why are they seeking to prove that most same-sex couples want to create their families in a different way?

OK, so maybe facts aren’t their best bet….

  1. I should say for the record that the whole “mutability” issue is to me a distraction; as the California Supreme Court has stated, sexual orientation, whether mutable or not, is central to one’s identity — and that should be that.

The End of (Half of) DOMA: Massachusetts Lawsuit Exposes the Lies

July 9th, 2009 No comments

As many readers by now know, yesterday the Massachusetts Attorney General, Martha Coakley, filed a complaint challenging the constitutionality of section 3 of the Defense of Marriage Act. (For a good summary of the event, check out Law Dork.) Section 3 defines and limits “marriage” to opposite-sex couples for federal purposes; thus, even in the few states that have achieved marriage equality, like Massachusetts, same-sex couples have no skin in the federal rights and benefits game.

The complaint is devastating, and the case can be expected to succeed on the merits. From the Introduction comes this brief and effective summary of what’s wrong with DOMA:

“In enacting DOMA, Congress overstepped its authority, undermined states’ efforts to recognize marriages between same sex-couples, and codified an animus towards gays and lesbian people.”

Yes, yes, and yes.

As to the first point: Congress was legislating on a sandy foundation in enacting section 3, the only section that the lawsuit challenges. (Section 2 provides that no state will be required to recognize the same-sex marriages performed in another state; this provision might be valid under the opaque “full faith and credit” clause of the U.S. Constitution.) One searches in vain for a prior instance, throughout history, where Congress attempted to define “marriage” through legislation–  this matter, like most areas of domestic relations, has been thought of as one of the areas of law most clearly committed to state law. And the evidence for this conclusion is clear and abundant.

First, over the years Congress has proposed (but never passed) numerous constitutional amendments to regularize divorce and marriage. The cumbersome constitutional process was thought necessary because Congress assumed that it lacked the authority to legislate in this area. In a report from 1892, the House Judiciary Committee stated that if Congress had this authority:

“[I]t would soon undertake to legislate upon the main body of domestic and local interests of the people which have always belonged to and been exercised by the States.” H.R. Rep. No. 1290, at 1 (1892) (emphasis added).

Nor is this any less clear today. As the Massachusetts complaint states, several members of Congress stated that section 3 of DOMA exceeded federal power. Of course, as Andrew Sullivan points out, “today’s GOP” support states’ rights only where convenient.

The Supreme Court, too, has long assumed that domestic relations were matters of state, and not federal control. In a case from 1890, the Court stated: “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States.” In re: Burrus, 136 U.S. 586 (1890).

And the usually-states-rights friendly current Court (OK, never mind Bush v. Gore) is of the same opinion. Here’s Justice Clarence Thomas, noting that Congress can’t regulate anything it feels like, just because there’s some incidental effect on interstate commerce: “the power to regulate ‘commerce’ can by no means encompass authority… to regulate marriage… Our Constitution…leaves such matters to the individual States, notwith standing those activities’ effects on interstate commerce.” (United States v. Lopez, 514 U.S. 549, 585 (Thomas, J., concurring)).

Thomas is the most conservative member of the Court when it comes to the powers of Congress, but Lopez (which was about another issue entirely) showcased a Court in remarkable agreement on the issue of domestic relations. As Professor Anne Dailey has stated, the Lopez Court, divided on the interstate commerce issue before it, was nonetheless united “around the principle that family law constitutes a clearly defined realm of exclusive state regulatory authority.”  Federalism and Families, 143 U. Pa. L. Rev. 1787, 1789 (1995).

So what arguments might be made that Congress did not overstep its authority? No compelling ones, I’d say. One might argue that DOMA’s reference to federal benefits that are independently justified is just “housekeeping” —  just to make clear who’s entitled to them. Along similar lines, see the Department of Justice’s much-attacked brief in the California DOMA cases: DOMA is “neutral” in the marriage arena, and simply takes an administratively conservative approach by not “taking sides” in the marriage equality debate.

The Massachusetts complaint blows these arguments apart, and makes me wonder whether DOJ will fight this suit with the contention that DOMA is “neutral.” As the complaint states, DOMA forces the state to discriminate against its own citizens — especially in the provision of Medicaid benefits, which are funded by both the feds and the states. Massachusetts gets no federal contribution towards the marriage-dependent benefits of same-sex couples. What’s neutral about this?

This brings me to the last point of the complaint’s introduction — DOMA “codified animus towards gay and lesbian people.” Read the testimony, some of which is excerpted in the complaint, and tell me that this isn’t true. Rep. Tom Coburn, for example, said that no society had lived through “the transition to homosexuality….” (We’re transitioning to homosexuality? Why aren’t things getting ever-more fabulous?) DOMA had nothing to do with “states’ rights,” except as the antithesis of the term as historically understood.

In fact, read the complaint in any event. Even if you’re not a lawyer, you can get the gist of the problem that DOMA creates by going through the many practical and financial issues that have become needlessly and unfairly complex because of  this “neutral” law.

What Happened in Fort Worth?

June 29th, 2009 No comments

It would be unwise to draw hard conclusions before all of the facts come out, but this looks bad. This past Saturday night, a gay bar in Ft. Worth was raided, and the reason given by  the Ft. Worth police department for the raid — an alcohol inspection — seems flatly contradicted by some of the facts; including the presence of several “paddy wagons” on site to cart off arrestees. One guy is in the hospital with what increasingly looks like a life-threatening brain injury.

Read the whole article (it’s long but very informative), and this one, too. That this  happened exactly 40 years after Stonewall is a dismal reminder that the struggles for equality and basic humanity continue. This story (both the specific one and the more general one) will continue to develop.

(h/t Chris Geidner at Law Dork)