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Culhane: The tidal shift in the LGBT movement

September 23rd, 2011 Leave a comment Go to comments

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 servicemembers take for granted – including housing for their families and spousal death benefits – aren’t available to same-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 not by ex-soldiers, or 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 wordinedgewise.org 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.







  1. DaveW
    September 23rd, 2011 at 11:31 | #1

    John, this piece again reminds me why I need to remember to read your blog once this site’s demise is upon us.

    Question: DOMA repeal would allow (force?) the federal government to recognize our marriages. DOMA being struck down in the courts would too (and since as I understand the court challenges are only against one part of DOMA, that is ALL the case would give us). Passage of the RMA as you say would not force states to recognize our marriages but it would the feds.

    I guess I could see that a good ruling against DOMA could also negate the “Doma-esque” state constitutional ammendmants.

    Is there really a difference between repeal, judicial strike-down and passage of RMA? Should we be working for one over the other two?

  2. johnculhane
    September 23rd, 2011 at 12:51 | #2

    DaveW: Thanks for the kind words. Please help me by spreading the word about where I’ll be posting.
    As for your Q: Repeal would get rid of all of DOMA, while the judicial challenge, as you note, is only to section 3 (on the federal non-recognition of state-sanctioned same-sex marriages). RMA is best, because it would make clear that once the federal government recognizes your marriage, it will continue to do so. And that means, as a practical matter, that a same-sex couple could travel to any state — or country,like Canada — that recognizes same-sex marriages, enter into one there and then have that union recognized by the federal government, forever.

  3. September 23rd, 2011 at 13:07 | #3

    The recent developments are delicious, aren’t they? 🙂

    At first, I didn’t realize the wonderful ripple effect ending DADT would have, but now I get it. And the country’s getting it.

  4. Ned_Flaherty
    September 24th, 2011 at 22:09 | #4

    Here’s a side-by-side comparison of what 13 presidential candidates have planned for LGBT people: http://www.marriageequality.org/Election2012

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