I had missed it that the federal Department of Justice (DoJ) had filed a brief supporting the 1996 Defense of Marriage Act (DoMA) until my Facebook friends went berserk over it on Friday. DoMA, for those of you who have been living under a rock, withholds federal recognition from any marriage contract not enacted between a man and a woman (read Jennifer Finney Boylan here on the application of that idea to transpeople), and licenses states to void gay marriages contracted in other states that are illegal under their own laws.
Many queers see Obama backpedaling on GLBT issues, and point to a campaign statement where he explicitly objected to the provisions of DoMA. I suppose it isn't worth it it to point out that Attorney General Eric Holder is not the President: he is only the President's right hand. My capacity for outrage is currently taken up with other things, such as: why paying bonuses to financial industry executives represents a crucial commitment to the sanctity of contracts, but paying benefits that were promised to retired auto workers is not. Or why Congress is setting its hair on fire over auto dealers losing their livelihoods, but seems unconcerned with the reverberating effects of auto workers losing theirs. I do have some room for other topics, however, and it seems clear that Miss Mary Obama needs to get his s***t together and communicate his good will to queers in a more concrete way than he has to date. I would add that queer people may need to pull themselves together too, as my buddy Bear Left is urging. "Don't Moan, Organize!" he advises. And yet, Bear, as you point out in the post, gays and lesbians are very organized.
I guess my question is this: is the brief really an outrage, except in the realm of symbolic politics where every queer victory is one step closer to Utopia, and every loss another step towards the Gulag? The Daily Kos has a selection of responses to the government's position on DoMA, and on the brief's effect on Obama's relationship to queer voters. The overall sentiment is that seems to be here that Obama had a chance to weigh in on the side of gay marriage, and not only did he fail to do so, but he weighed in on behalf of the status quo.
But this may be a good thing, because the status quo is legally quite fragile. DoMa has created fertile ground for a crushing wave of lawsuits, particularly now that some states have legalized gay marriage. One attorney I consulted in Connecticut thinks there will be major litigation under the commerce clause (click here and look under "Section 8, Powers of Congress"), as married couples working for national corporations are transferred to states that do not support, or that explicitly prohibit, their marriages or any benefits derived from them. These people will sue in federal court for access to the employment benefits they were entitled to but are then denied in state #2, even though they work for the same company. And they will win.
In this vein, check out law prof Nan D. Hunter over at Hunter For Justice. A former Clinton appointee, she has been working on these things for a long time, and infers that we are seeing the Obama administration play out a political game ultimately aimed at overturning DoMA in Congress. Congress will see a tsunami of litigation bearing down on them, she argues, and act to avert it by voiding their own stupid legislation. She also suggests that the arguments made by the DoJ in last week's brief are relatively superficial, sending a subtler message than the pro-marriage folks are able to hear right now in the wave of frustration and rage over the Prop 8 decision in California. A feeble case for restricting marriage was certainly the strategy in Connecticut, according to a member of the State Supreme Court who voted with the majority and who I had dinner with after the decision was published. Attorney General Richard Blumenthal did what he was supposed to do, which was to defend the constitutionality of the marriage law, but let's just say that he and his team didn't produce the kind of compelling brief we have come to expect from them in other matters, nor did "Swinging" Dick Blumenthal himself appear to argue for the state.
What are the advantages of sending DoMA back to Congress rather than steering multiple cases through the courts? Well, it might be faster, for one thing. Another is that social engineering from the bench has become a huge source of political conflict in this country, and the opposition it engenders can be crippling to a progressive agenda. Every piece of legislation should meet a rigorous constitutional test prior to being enacted, and the enactment of social change through federal legislation makes progressive change part of a democratic process that is more likely to produce consensus after the fact (unless, of course, you are a follower of John C. Calhoun's theory of concurrent majority.)
There is now a long history of judicial interventions that have overturned discriminatory laws, and very few of them have had the impact that progressives have hoped, or that has been achieved by say, the Wagner Act, the 1965 Civil Rights Act, or Title IX. Two failures of what conservatives call "legislating from the bench" are prominent, in my view: school desegregation and abortion. Half a century after Brown v. Board of Education (1954), our nation's schools are as (or more) segregated than they ever have been, and our private universities call themselves "diverse" when 5-10% of the entering class is African-American, and 20% are "students of color." Kevin Kruse's 2005 White Flight: Atlanta and the Making of Modern Conservatism demonstrates how whites in Atlanta successfully used what laws and institutions were available to them to re-segregate the geography and public institutions of their city, including its schools. Furthermore, court-ordered busing, as a remedy to residential segregation, has been a disaster, even though a great many people my age, black and white, benefited from it enormously.
And of course, as I have discussed recently here and here, the struggle to preserve abortion rights in the United States has become a principle rallying point for conservatives, and a source of endless litigation, during which women's reproductive freedoms have narrowed dramatically as "contraception" and "abortion" have become categorically merged by conservatives, religious extremists and the family values crowd. Thirty-five years after Roe v. Wade (1973), a woman's constitutional right to act on a private consultation with her physician by not bringing a pregnancy to term has been devastated in multiple ways, and corrupted the process of vetting judicial appointments by allowing one issue to dominate over others.
I've come a long way toward being sympathetic to the desire for gay marriage, but I continue to believe that it has consumed vast resources that might have been devoted to achieving universal access to: decent housing; good schools committed to educating citizens that are safe for queer kids; accessible higher education; universal health insurance; non-discrimination in assigning pension, death and federal retirement benefits; equality in adoption laws; equality under the law for women and children; ending discrimination in family court; full funding for public health outreach and research into communicable diseases; universal day care; immigration reform; disability rights; pay equity, a living wage and anti-poverty legislation. Citizens have a fundamental right to these things, whether they are married or not. As one of my favorite organizations, Queers for Economic Justice has pointed out on multiple occasions, the reason gay marriage is perceived as a middle class issue is because it is a middle class issue. Poor people have no property or rights to convey through marriage, nor do they have to worry about visiting someone in the hospital, because they can't get into one anyway. And why does "Don't ask, don't tell" not muster the emotional outpourings that gay marriage campaigns do? Because, as Janet Halley pointed out in Don't: A Readers Guide to the Military's Anti-Gay Policy, educated middle-class queers either don't approve of war, or they don't need to sign up for military service to get access to human rights that are currently privileges in the United States, and that they can find a way to purchase. In queer academic circles, at least, while marriage is the gay agenda everyone loves to hate, military service is really off the radar. In other words, "Don't Ask, Don't Tell (Don't Care!)"
If the Obama administration is not getting sucked into an eight-year struggle over DoMA that saps energy from their other social initiatives, then I would say that they have already learned the lessons queers need to learn: that there are some critical things that support a dignified life, and the right to marry is at the bottom of that list. I say this knowing how much people want it, and even having felt the warm fuzzies as it has passed, state by state. But that said, my gay agenda is to live in a country where marriage is purely a choice that people make out of sentiment, but one that conveys no material privileges whatsoever.