Posts Tagged ‘DOJ brief’

Stonewall’s Progeny

June 28th, 2009 No comments

On the 20th Anniversary of Stonewall, there are any number of great places to find an account of the uprising that began on June 28, 1969, and lasted for some two weeks. I especially recommend Nan Hunter’s typically excellent post, which includes a bunch of useful links and an extended quote from the great writer Edmund White, whose pulsing account of events she quotes extensively.

I want to make a different point, though. Several years ago, a good friend of mine in Michigan was expressing his frustration with well-to-do, polite gays — almost exclusively white men — who cared little about the rights of people more on the fringe than they were. Here of course he was referring to gays and lesbians of color and gender non-conformists (including but not limited to the transgendered community). His admonition to the polite class: “If it’s not safe for the most outrageous drag queen, it’s not safe for you, either.”

Well, yes and no. In a theoretical sense he was right, because the oppression of any group enables the oppression of another; dehumanization and essentialist thinking are easily transported to new contexts, so that the group safe at the first pogrom might not survive the next. Here’s a brief comment that gets right at it from one of the readers of Pam’s House Blend:

“We are all gender transgressors in the eyes of society, either by loving the ‘wrong’ gender, or living as the ‘wrong’ gender. Pretty simple. But I’ve had arguments with boneheaded gay friends who insist ‘those people’ are ruining ‘our’ cause.

“It’s all one cause, people.”

Yet my friend’s admonition often fell on deaf ears, because the privileged class isn’t often on the receiving end of the worst kind of discrimination. Their efforts to maintain the status quo with the “tweak” of formal equality are less threatening, and more $1,000-a-plate-fundraising-dinner friendly, than the messier demands for the social equality that alone lead to good public health and welfare outcomes for transgendered people and other true outliers.

The other point my friend might have made is that the LGBT movement as we know it today simply would not have existed without the reckless courage of those same outliers; people still too often shoved to the margins in the march to formal equality. Having the least to lose and the most to gain, these radical queers sparked the revolution that today has the rest of us comfortably within the social mainstream. And they didn’t start in June of 1969; the transgendered community, working outside the sticky cocoon of a double identity that sheltered many more “passable” gay and lesbian folks, had augured Stonewall with an uprising of their own, four years earlier — in Philadelphia, at a place called “Dewey’s.” Kathy Padilla discussed this event, and provided a sketch of earlier TG visibility, as Pam’s guest blogger.

Because of these ground-breaking — doubtless trembling — efforts, we can argue with seamless confidence today for the full measure of legal equality that is surely soon to come. Even the Obama DOJ’s awful brief defending DOMA underscores rather than contradicts the point; a generation ago, the homophobic cant that the brief recites would have passed, unchallenged. Today it is a major embarrassment for the Obama Administration, which has been forced to respond by agreeing to meet with gay legal advocacy groups before filing the government’s brief in the other DOMA case, due in the Fall.  That’s progress.

And for those of us who congratulate ourselves for being “out,” it’s worth thinking today about the forefathers/mothers who made this possible; even easy, in some cases.

It’s often and accurately stated that the LGBT rights movement doesn’t have a true leader. But we do have pioneers, and Stonewall is an apt time to both remember them and the deep lessons of their courage.

Incest!! Pedophilia!! What the DOJ Brief Didn’t Compare Gay Marriages To!!

June 23rd, 2009 No comments

When it comes to outrage over the DOJ’s brief defending the Defense of Marriage Act, count me in. My reference to the brief as “a jaw-dropping assault on gays and lesbians” spread throughout the Internet to an extent that I found surprising, but gratifying. In that same post, I set forth what I thought were the brief’s worst transgressions; others have done the same, more comprehensively.

Yet we weaken our credibility with spurious accusations, and I’ve been surprised by how little challenged has been the canard that the brief compares same-sex marriages to incest and pedophilia. Folks, it doesn’t. Yet the comment continues, notably on Dan Savage’s blog. Here he is in an infantile post asking whether the site should “de-friend” Obama: “A commenter suggested that after today’s bombshell—gay marriage is like incest and child rape!—we vote on whether Obama gets to stay on the list of Slog’s friends…” But that’s Savage; he’s not a lawyer and loves being provocative. That’s why we read him. (He’s in my blogroll for a reason.) At times, though,  he crosses that hard-to-define line between “I-can’t-believe-he-said-that” funny and plain nasty. Today, he responds to a reader who identifies as “asexual” by first apologizing for offending her, and then writing: “I couldn’t help but think, as I read your letter, that your boyfriend is either a fool or a fag.” OK, he couldn’t help thinking it, but could he really not help writing it? Gratuitously cruel, for a laugh.

Much less understandable, except as shameless attention-getting, is the willingness of John Aravosis at AMERICAblog, to repeat this accusation, even today, where he again references “the community uproar over Obama’s Justice Department comparing us to incest and pedophilia.” The sentence doesn’t even work grammatically (comparing “us” to “incest and pedophilia”?), and is inexcusable coming from a lawyer, who should (and almost certainly does) know better. Aravosis is an impassioned activist, whose contributions to the LGBT equality movement are many — including his recent call-out of the Administration, during a conference call with officials, on the show-biz, substanceless quality of the memorandum extending a few benefit crumbs to the (same and opposite sex) unmarried partners of federal employees.

This piece, along with the comments, from Art Leonard at New York Law School, effectively dismantles the assertion that the DOJ brief compared same-sex couples to incestuous or pedophiliac couples. I’d just like to add one legal point in further clarification. States differ on the minimum age for marriage, and on the degree of affinity or consanguinity (legal or blood relations) that bars marriage. The cases cited in the brief involved one state court (State A) having to decide whether another state’s (State B) less stringent age or closeness of family relationship requirements for marriage offended the public policy of State A. These weren’t cases involving mothers marrying sons, sibling marriages, or marriages between adults and “children.” They were cases testing the permissible lines, and thus involved issues like sixteen-year-olds’ right to marry, or the rights of first cousins to wed. The cases themselves, in other words, are hardly incendiary. But they are the only cases available for discussing the “public policy” exception to the general requirement that states must give full faith and credit to the laws of sister states.

The DOJ brief is a disgrace, and the work of bloggers and others to hold the Obama Administration accountable has been valuable, and influential. But let’s stick reasonably close to the facts.  At the same time, let’s continue to take real steps, such as this one, proposed by Andrew Sullivan. (It’s a great, angry post, well worth reading.) Money, they get — so let’s make sure they don’t get ours, until there’s real, substantial progress.

Obama’s (Mini) Down Payment on Gay Rights: Federal Domestic Partner Benefits

June 17th, 2009 No comments

The issue of causation confounds philosophers and scientists alike, but allow me to identify one instance of clear cause-and-effect that few would dispute: The furor over the DOJ’s filing of the motion to dismiss in the DOMA case — not to mention the hemorrhaging of financial support for the upcoming DNC fund-raiser — led directly to President Obama’s actions tonight. Here’s what happened:

The actual legal step is teensy. Federal employees get a few crummy benefits; not the truly valuable stuff like health care or retirement benefits. Obama barely mentions the benefits  he’s able to confer with the stroke of a pen, because they’re mostly peanuts. (Not to those directly affected, though. During Equality Forum, I spoke to Michael Guest, the moderator of a panel on LGBT Rights and Challenges in Russia. Guest is the former U.S. Ambassador to Romania, and he discussed his constant frustration with how his same-sex spouse couldn’t do any of the simple  things that spouses of opposite-sex couples could, including attending basic learning  sessions on “do’s and  “don’t’s” for spouses living in other countries. My  conversation with Guest is worth its own post; maybe someday soon….)

But Obama’s action wasn’t about these benefits; they were just the handiest vehicle for his now desperately needed effort to calm the LGBT community. There were two ways for him to have done so: He could have delivered a major, sweeping  speech on gay rights, with a mea culpa for the vilified DOJ brief (for which he’s ultimately accountable). In my fantasy world, I  still hope that he might deliver such a speech, and a few posts ago, I took the liberty of writing one for him.  The model for that is the “race speech” he gave last year here in Philadelphia.

This brief signing ceremony cum photo op was the alternative. It wasn’t a grand “gay rights” speech, focusing instead on DOMA — not coincidentally, the act that was the subject of the recent firestorm — and on the smaller steps, like the Domestic Partners Benefits and Obligations Act, that could be taken leading up to DOMA’s repeal.

Given its focus on DOMA, as a short speech it was good. He neither apologized for nor explained the DOJ brief, but he did acknowledge that he hadn’t done anything yet: “Among the steps we have not taken is repeal of DOMA.” He then reminded us that, yes, he still supports repealing a statute that is “discriminatory” and “interferes with states’ rights.”

The “states’ rights” reason is important to the legal ear. Recall that DOMA does two things: It allows states to refuse recognition of sister states’ same-sex marriages, and denies federal marriage benefits to same-sex couples even if validly married in their home states. The DOJ’s argument in defense of the second provision was the one that drew all of the outrage, arguing, as it did, that the government shouldn’t spend federal tax money on the “novelty item”  that is same-sex marriage, and (incredibly) that same-sex couples weren’t being discriminated against by being excluded from federal benefits. Tonight, Obama effectively stepped back from these arguments by saying that DOMA should  be repealed precisely because it doesn’t respect a state’s decision to confer the status of marriage on same-sex couples. Not bad, although likely lost on non-lawyers (unless you are lucky enough to be reading this!)

Beyond DOMA, his rhetoric was more general, and — happily! — more reminiscent of his campaign’s. There’s “more work to do to ensure that government treats all of its citizens equally.” He’s committed to fighting “injustice and intolerance in all its forms to bring about that more perfect union.” There, he consciously echoed the race speech, which began with this quote from the Preamble to the U.S. Constitution: “We  the people, in order to form a more perfect union….” (The speech also ended with the idea of “perfecting” that union.)

And then, in further answer to the question: “What the hell are you doing on LGBT issues?”, he committed his administration to working “tirelessly” to secure the repeal of DOMA.

Will this action succeed in quelling the outrage? It’s impossible to tell at this point. For once, I’ve purposely refrained from reading other blogs before posting this, because I wanted to voice my own first reaction, unaffected by the cacophony that’s surely out there. My guess is that it buys him a little time — not much — to actually start working on the signature LGBT issues of his campaign. If DOMA gets moved to the front of the pack (ahead of supposedly easier sells, like hate crimes and the Employment Non-Discrimination Act), that would be real progress.

But the honeymoon is over.

Obama’s Ground-Breaking Gay Rights Speech*

June 16th, 2009 3 comments

New York City, June 28, 2009:

“Forty years ago today, the New York Police raided the Stonewall Inn, a popular gay bar in Manhattan’s Greenwich Village. These sorts of actions were common, and tolerated by the bar owners and the patrons of the bar, who were a mix of outsiders generally not welcome in the mainstream community: drag queens, hustlers, homeless young men, a few lesbians. The more mainstream clientele lived double lives, fearful that they would be discovered and lose everything: their jobs, their families, and their standing in the community.

“Although a movement towards gay rights had begun before Stonewall, the officers who raided the bar that night could  not have expected the resistance they encountered. The gay community, led by its most marginalized members, had had enough. Skirmishes between police and patrons spilled out onto the street, and catalyzed further confrontations and  demonstrations throughout that week. Within months, the gay rights movement as we know it today had taken root. The accomplishments of what is now called the lesbian, gay, bisexual and transgendered “(LGBT”) community have been remarkable since that time, but the work is unfinished.

“Today I commit myself and my Administration to doing what we can – what we  must – to achieve the goal of equality. Let me explain how I arrived at this point, and why I believe it’s so vital for all Americans to embrace – not just tolerate – the goals of legal and social equality for the entire LGBT community.

“For most of our history, and to a large extent even today, gays and lesbians have lived in the shadows. Their personal lives were unspoken and unspeakable, and their history, too, is but little-told. How many even know about Stonewall? Such ignorance of seminal events in any other equality movement would be shocking. Gays and lesbians are in all of our families, or the families of people we know, but for too long we pretended otherwise. The time for doing so is over.

“True, there has been great progress on the social front over the last decade or two, but the law and the dignity it teaches and confers have lagged behind. It is past time to lash the hopes and aspirations of this large and beautiful family of Americans to our great national mast.

“Why now? The anniversary of the Stonewall Riots provides an obvious occasion for a call to action, action I promised during my campaign. But I’m delivering this speech for another reason. Earlier this month, the Department of Justice filed a brief seeking dismissal of a case challenging the constitutionality of the Defense of Marriage Act. DOMA, as it’s usually called, defines marriage for federal benefits as the union of a man and a woman. As a practical matter, this means that a gay or lesbian couple validly married in their home state are nonetheless unable to receive any of the federal benefits that their opposite-sex counterparts do.

“I don’t support DOMA, and have called for its repeal. So why are we defending it in court? Generally, that’s what we do, as long as there’s a solid legal argument to make, even if we don’t agree with it. We can oppose the suit and try to get DOMA repealed at the same time. But both the blogosphere and all of the main LGBT advocacy groups erupted in anger when they read the brief. I was shocked and dismayed at this anger at first. But now I see that it was entirely justified. The brief recounts and gives support to some of the worst homophobic cant, much of it firmly and decisively rejected by fair-minded people, even if the law is less clear. That some of it still finds any support in law is distressing. It woke me up to the plain fact that the judiciary is hardly immune from some of the assumptions and prejudices about gays and lesbians that have been around for far too long.

“I don’t fault the DOJ for their actions; they are smart lawyers, trained to make whatever arguments might plausibly be advanced. But I should have firmly stated my position against making the kind of arguments that appear in the brief. Accordingly, today I have made the probably unprecedented move of  directing the DOJ to request that the motion be withdrawn. Admittedly, there’s some controversy  about the proper role of the Administration in directing the DOJ, but I’m confident that this is legally appropriate; and it’s the right thing to do.

“And let me state, clearly and directly, that the statements in the brief suggesting that the LGBT community is not entitled to equality, are unacceptable. On behalf of my Administration, I apologize not only to the community, but to everyone who found such arguments distasteful, or worse.

“What next? It’s not enough to withdraw a brief, because the underlying law – DOMA – is still there, as are several laws that diminish and degrade the LGBT community. I believe that all of these laws are related, and that all must be dealt with.

“First up is the federal hate crimes bill. Now, this might seem like an easy thing to enact, because no one favors acts of violence. But there is a controversy about whether to include protection based on gender identity and expression in the law. Obviously, people of non-conforming gender – often but incompletely referred to as transgendered – make lots of folks uncomfortable, including legislators. Many don’t understand gender confusion or failure to conform. But the bill must contain this protection, or I will send it back for redrafting until it does. Because the quest for equality that I’m today endorsing will have done with a piecemeal approach. And those of non-conforming gender are especially likely to face violent attacks, because of a more dangerous form of the fear I just mentioned. A bill that omits from its protection those who need it most isn’t worth signing.

“We also need to move, before the  end of the year, to enact an inclusive Employment Non-Discrimination Act – again, one that includes gender identity within its protection. The right to be hired, or not to be fired because of your sexual orientation or gender expression is still only guaranteed in a minority  of states. This must change. And while policy and polls are too often fused, here it’s worth noting that large and consistent majorities of Americans favor this protection. The law will reflect good, fair business practices.

“Repeal of the “Don’t Ask, Don’t Tell military policy is also a priority. The policy is indefensible on grounds of national security. Many folks are aware that we have a shortage of Arab translators, and that this shortage can entirely be traced to “don’t’ ask, don’t tell.” If the gay translators hadn’t been kicked out, we’d be in much better shape to face the challenges that confront our military.

“Why is this policy in place, anyway? The only argument you still hear is that of “unit cohesion” – if straight soldiers are uncomfortable with openly gay soldiers in their ranks, the mission could be imperiled. Some military officers believe this, but opinions are changing.

“But there’s no evidence for this position. It reflects a vestige of the earlier, society-wide policy that consigned gays and lesbians to the shadows, unable to live openly as who they are. Imagine being gay and in the military: You can’t talk about it, you’re probably taking a risk by being in any  kind of serious relationship (even if you don’t talk about it), and you live in fear of being found out. In 2009, this isn’t a notion of “unit  cohesion” that makes any sense. “Don’t ask, don’t tell” leads, in fact, to the undermining of cohesion by requiring and enforcing the dishonesty of silence.

“The last of the major issues on which I promised federal action, but have so far not acted, is the Defense of Marriage Act. This brings me back to my inspiration for today’s speech – the misguided brief that we filed in the DOMA challenge case. Marriage is working itself out, dynamically, on a state-by-state basis. In those states where gay and lesbian couples have, with great purpose and effort, secured the right to the same marriage rights that opposite-sex couples can take for granted, the federal government should not be erecting another barrier, which is what DOMA does. These same-sex couples have all of the same challenges and responsibilities of all married couples. There’s no good argument for denying them the benefits that we bestow on straight couples.

“So what about marriage itself? Yes, it’s a state issue, and here I’d be on safe, firm ground by reiterating my position: Respect for states that allow same-sex couples to marry, while my own preference has been for civil unions. Many  have supported civil unions as a compromise that confers all of the benefits of marriage on gay and lesbian couples, while recognizing that for religious, historical, and social reasons, marriage itself is reserved for opposite-sex couples.

“In “The Audacity of Hope,” I wrote that it was ‘my  obligation, not only as an elected official in a pluralistic society but also  as a Christian, to remain open to the possibility that my  unwillingness to support gay marriage is misguided….’

“I’ve now concluded that my opposition was, in fact, misguided. In a twist of irony that perhaps the LGBT community can one day appreciate, it was my study of the DOJ’s DOMA brief that crystallized my thinking on this issue. I’ve also been reading the decisions by state courts and the debates taking place in state legislatures.  Vermont decided that ten years of civil unions were enough to show what everyone should have known from the start: Separate but equal legal institutions can’t be defended. As the courts have said, if the difference were not important, no one would have gone through the trouble to create a new, parallel institution. While states might find the civil union an easier pill to swallow politically, they are not a prescription that cures the problem.

“Gays and lesbians are fostering and adopting children, and creating families in all kinds of ways, as are many straight families. We should welcome and support this  kind of responsibility, not continue to impede it. Many thoughtful  conservatives actually support marriage equality, and it’s easy to see why. Those who are willing to work to build the strong families that society wants should be encouraged, not discriminated against.

“While my mixed-race background has given me an invaluable perspective on issues of racial equality and justice, it has not directly shaped my view of the challenges faced by gay, lesbian, and transgendered Americans. Yet I know that inequality and the loss of dignity that too often is a consquence of it is not limited to race. In “Dreams from my Father,” I wrote of my transformative experience in my church: ‘Our trials and our triumphs became at once unique and universal, black and more than black….’

“I quoted these same lines in my “Race Speech” a little more than a year ago. Today, it is time to consider the ‘more than black’ more fully. For one of the great gifts of the civil rights movement was its insistence that every life has dignity, that all families deserve respect, and that every person has potential that can only be fully realized when legal and social oppression are confronted, and declared unacceptable and unworthy of us, as a people and as a nation.

“That same speech also referred to the constitution. I said then that the answer to the slavery Q was already embedded in our Constitution – which has at its core “the ideal of equal citizenship under the law.” That Constitution, I added, also “promised its people liberty, and justice, and a union that could be and should be perfected over time.”

“Let me move away from the abstract to the real, closing with a story that is extraordinary only in its extent, not in its impulse. Steve Lofton and Roger Croteau are long-term partners who, over the years, became foster parents to five needy children. Several had HIV, and were considered “unadoptable” by the local department of social services. Yet under Florida law, these foster parents couldn’t adopt any of these children. By my definition, this is a family. Yet this family could have been sundered by adoption, and there would have been no recourse.

“The family moved first to Oregon, where they were able to adopt their kids. Then, so that their kids would be able to be part of a family whose dignity was respected and whose equality was recognized, the family moved to Vancouver, Canada.

“Gay or straight, isn’t this the kind of family we want to celebrate, not demean or needlessly stress?

“That Steve Lofton and Roger Croteau were able to create a family against these obstacles should tell us all we need to know. We can’t expect every family to look like this one. But shouldn’t we be creating the legal environment that fosters strong and loving families, with or without children?

“No family is perfect, but good gay and straight families, fully recognized and respected, can help us in our expanding effort to achieve a more perfect union.”

*The one I’d love to hear.