Posts Tagged ‘Respect for Marriage Act’

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.

Obama’s Evolution, the Respect for Marriage Act, and…Gay Camps??

July 22nd, 2011 No comments

Not even PeeWee Herman would have tried to connect these dots.

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.

Barney Frank, Reconsidered

September 16th, 2009 No comments

There’s much to admire about Barney Frank. He’s brainy, has a lacerating wit that he’s willing to use in calling out idiots, and straightforwardly principled on a number of issues. I particularly admire (if I don’t fully share) his purist view of the First Amendment. He was one of  only three House members to oppose the law that now forbids protests near many military funerals, and has declined to support the resolution against Joe Wilson, on the ground that being a “jerk” shouldn’t be censurable. Overall, his Massachusetts constituents and the LGB…1 community are, in general, lucky to have him as a spokesman and a champion. But…

Recent events have caused me to re-evaluate his real value and commitment to the gay community. It’s time to hold him accountable. The trigger for this post was his refusal to co-sponsor a bill (“The Respect for Marriage Act”), just introduced into the House yesterday, that would repeal the pernicious Defense of Marriage Act. Frank’s reason? The bill “has zero chance of passage, even out of committee.” Doesn’t Frank’s refusal doom the bill? “It does send a message that it’s a bad idea,” says Frank. “But I want to send a message.”

Well, that’s odd, because Frank hasn’t exactly restricted his support to bills with a reasonable chance of passage. Last year, for example, he proposed the Personal Use of Marijuana by Responsible Adults Act of 2008, which would decriminalize the possession and use of small amounts of pot. Is this likely to pass? A year after its introduction, it has a robust seven co-sponsors in the House; by contrast, DOMA repeal has more than 90 co-sponsors exactly one day after its introduction.

Worse, Frank now says that we should rely on the courts for the repeal of DOMA. This is the same person, remember, who defended the Obama Administration’s offensive brief supporting DOMA. If that brief’s arguments are accepted, there’s no chance that DOMA will be declare unconstitutional. Yet now the Roberts Court is our best chance? What is Frank thinking?

In a way, none of this is surprising. Frank’s courage has always come with a bold-faced asterisk. He didn’t come out until several years after first being elected to the House, after his seat was secure. Not unforgivable; people come out at their own pace, and Frank, now approaching the age of 70, is of a generation for whom openness about (gay) sexual orientation is uncomfortable. Yet his hesitance bespeaks a politician’s genetic predisposition towards self-preservation. So perhaps there’s something going on behind Frank’s odd stance here that we’ve yet to learn; some kind of deal, perhaps, to hold off on DOMA in favor of other legislation that (we’re endlessly reassured) will be forthcoming much sooner: hate crimes law; ENDA; perhaps even the repeal of “Don’t Ask, Don’t Tell.”

But it’s appalling for him to argue that The Respect for Marriage Act will be controversial because it will be seen to require states that oppose same-sex marriages to recognize such unions from other states. The bill plainly does not do that, and Frank knows it. It simply requires the federal government to look to the state where the couple was married in deciding whether to recognize it for federal purposes. By suggesting that opponents will be able to use this provision to attack  the bill, Frank fuels their arguments.

This is leadership?

  1. I left out the “T” from the usual alphabet string above because Frank has sometimes seemed obtusely insensitive to the needs of the transgender community. He once supported a version of the Employment Non-Discrimination Act that wasn’t trans-inclusive. (Quick: What group most needs protection against workplace discrimination?)