Sunday, June 14, 2009

What, Exactly, Is The Gay Agenda? And What Part Should Repeal Of The Defense of Marriage Act Play In It?

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.


Military Prof said...

Is it possible that President Obama has backpedaled upon the GLBT agenda because he takes GLBT votes for granted? Who else will they vote for in 2012? A Republican? Hardly! A fringe candidate? Possibly, but not in high numbers in any potential "battleground" states. It's my opinion that the president expects support for GLBT issues to provoke opposition from social conservatives who might otherwise vote for him, while ignoring/marginalizing/opposing GLBT issues will not lose him an equal number of votes.

As for Don't Ask, Don't Tell, most military officers that I work with expect it to be quietly dropped in the next few years, with minimal effect upon operations. A lot of them consider the current policy completely silly, and could care less about the sexuality of military personnel. There will be plenty of activities that are still illegal, including fraternization and adultery, regardless of who is involved. Even though the Supreme Court recently passed up an opportunity to strike down DA/DT, I'd put money on the president or the Joint Chiefs changing the policy once our combat forces leave Iraq. (Note: This doesn't mean all forces-just the combat troops. Most of the soldiers in Iraq are in non-combat branches, involved in logistics, training, etc.)

Roxie Smith Lindemann said...

Totally with you on the analysis here, except that I really do believe the Obama administration deserves a good dose of queer and progressive outrage for its record so far on LGBT issues. You don't call yourself a fierce advocate and then deliver one kick in the gut after another to the community. If this becomes a political problem for Obama (and Military Prof may well be correct that it won't), he'll have no one but himself to blame.

aravind said...

In a twisted sort of way, it makes some sense as a way of sacrificing for the country. We stop pushing for immediate action on this front, so we can lay the tracks for more permanent change later on, and maintain a coalition for broader changes. A form of patriotic sacrifice.

Of course it feels a bit wrong to think that way. How many black soldiers got medals or honored for their efforts during WWII? The French Government still doesn't want to acknowledge the bravery of its Maghr├ębin troops during that war. And hell, let's not even get started on what happened to black German troops from WWI. There's both a long history of oppressed minorities being told to commit themselves to a cause, and then they'll get freedom/recognition/equality/what-have-you, only to be left high and dry (or low and screwed I suppose). Obama's consistently centrist rhetoric leaves me worried about this.

DADT is a better issue to campaign on though, since it makes us obviously less safe, and has lead to several incidents of rape (because if she didn't want it she clearly was a lesbian and was told he would have her discharged... *shudder*). Not to mention all the humor potential (*another* gay Arabic translator - are they *all* gay?).

Anonymous said...

Ordinarily I agree 100% with your opinions, but in this case I strongly disagree that the right to marry should be at the bottom of the list, beneath other items on the agenda of social justice and equality. Marriage, far from being a cosmetic or sentimental institution, is at the front lines of the struggle for equality.

Here's a case in point: a friend of mine, a government employee, is unable to marry his partner of over a decade, an immigrant who initially entered the country legally, but has overstayed his visa. His job requires a governmental security clearance, and this year the government refused to renew his clearance because he is "living with an illegal foreign national." He lost his job - which he would have been able to keep, mind you, were he willing to swear to cease contact with his partner. My friend was fired as a direct result of his sexuality, as a direct result of the lack of marriage rights: if they were a straight couple, his partner would have been able to get legal immigration status by virtue of marriage.

This case is only one example of a circumstance in which peoples' lives have been and will continue to be devastated because the federal rights and privileges accorded to married people in this country are not extended to gay couples. I don't think this issue should be on the back burner, and I don't think people should wait years for it to percolate through the court system. I hope that this generation is the last group of people who need to suffer under such injustice, but it doesn't do any good to hope and predict that 20 years in the future, Americans will have enough sense to treat all couples the same under the law. There are people suffering right now.

Tenured Radical said...

Dear Anonymous:

Terrible story you are relating, but question: why should someone be able to immigrate because they create a legal family with an American? Why shouldn't a liberalized immigration policy have allowed your friend's partner to remain in this country?

I agree: marriage would have been an excellent way to resolve this problem, but so would immigration reform, which would help a great many people who want to be here for many reasons, including your friend and his lover.

The only reason marriage is n the front lines is because we funnel other privileges through it, as if marrying automatically makes some people more worthy than others.

And aravind -- I don't think queers should sacrifice for higher goals as (and you are obviously correct) black people have worldwide in hopes that their sacrifices would result in full citizenship. It's a bad, accomodationist strategy that ultimately valorizes the power of the state. But marriage also valorizes the power of the state, not the empowerment of individuals. I think all those policy goals I listed should *constitute* queer politics, because all of those policy agendas would do more for more queer people than marriage would. I agree that it is galling, but, if marriage were not the gatekeeper to privilege, it wouldn't be an issue.

Anonymous said...

read the language in the DOJ brief- it brings up every nasty anti-gay stereotype in the right wing playbook. Maybe they didn't want to deal with DOMA issues yet, but there was no need for them to use this language. See Americablog for details.

Tenured Radical said...

Dear Anonymous 9:35 --

You'll have to give me a better link than that for me to check anything, but I actually did go back and read the brief, and I couldn't disagree with you more. I see absolutely no evidence for this assertion, even in the quotes taken from cases cited as precedent. What stereotypes have you seen?

In fact one of the interesting features of the brief is that it uses modifiers: "heterosexual" and "homosexual" marriage, which is an interesting movement towards the notion that there is such a thing as gay marriage. And it acknowledges the legality of gay marriage at the level of the state, saying that marriages do not become void simply because a couple crosses state lines. Talk about a gift.

My read on the case (and I am no legal scholar) is that it argues against the possibility of a federal suit, and it kicks responsibility back to congress. I think it also offers a roadmap to a successful suit, if you ask me, since in making its argument, even I can see holes big enough to drive a truck through.

You know, not climbing on the gay marriage bandwagon is not automatically right-wing *or* homophobic: I'm actually sorry this is so hard, but it is, and the popular movement needs to deal with the realities of the judicial process that the activist organizations are navigating.

DEH said...

Hi TR, I am not sure that Anonymous 9:35 was suggesting that you were homophobic, if that is what you mean to defuse in the final paragraph of your response. Like you, I feel a certain remorse at all the resources directed toward the marriage equality movement, although I am happy to see large numbers of people moved.

With regard to the content of this recent brief, Nan Hunter's very restrained take is not exactly a consensus position. Other legal scholars are quite worried about the content. See, for instance,
As well, the head of Lamda Legal, Jon W. Davidson has made similar arguments explaining his fear of this brief. One point that these folks make, which Hunter does not press, is that there was no need to make these arguments; they appear excessive. This case is weak on standing, for instance, so the DOJ could have zeroed in on that issue (as well as other procedural problems in the case) and avoided parroting terrible legal arguments, ones that often appear in the mouths of homophobes, altogether. Those who react to the brief are reacting, as far as I can tell, to its excessiveness.

As one of those foreigners in the US who wishes he could stay with his partner of many years, I also find the argument that my status could be regularized through other means a little tired. After all, the kind of immigration reform you suggest would require a fight against the very strong post-9/11 mentality that does not want porous national boundaries. I agree, though, that marriage should not be a solution to the immigration issue, and I wish this the immigration issue received more attention. However, if I had marriage as an option, I wouldn't hesitate to use it to my advantage (as several of my heterosexual colleagues at various universities have).

And finally, what I find terribly odd about this whole process is that it is so protracted. Spain and Canada, for example, did not undergo such agonizing (not to say that there was not opposition to creating political equality for queer folks). The reason why this takes up so much energy and time is, in part, because this culture is so hostile to queer folks; homophobia is deeply felt by parts of the US population. Although I have been in the US for over a decade (not that long really), I am still amazed at these moments of prejudice, which are, as you rightly suggest, a waste a resources.

DCJ said...

Isn't it basically the DOJ's job to defend the government in cases such as this one? And as long as DOMA remains a law, doesn't the DOJ (and the president, for that matter) have a certain duty to defend it?

I do think that DOMA should be repealed, but it will likely take Congress to do that. And I don't think you will see Congressional Democrats lining up to do it anytime in the near future.

DCJ said...

Also I thought I read somewhere that the author of the DOMA brief was a Bush appointee.

Bear Left said...

In addition to the Nan Hunter and Jon Davidson pieces, which I definitely recommend, I also recommend this post from one of my college friends & later alum of G'town Law (though he's no longer practicing). I'm still sorting through how I think & feel about the memo.

But let me ask a different question, prompted by these controversies. As a historian, what place do you think storytelling has in the political strategizing of the movement? One of the things that strikes me is how the governors of New Hampshire & Maine both noted how important the stories of same-sex couples in their state was to the evolution of their political thinking; ditto for Tom Suozzi, a potential candidate for NY governor next year, as he wrote about in the NY Times just a few days ago. And I don't think that storytelling as a political tool is limited to the marriage issue. Obama himself made storytelling part of his campaign -- up to and including inviting a certain ex-roommate of mine & her partner to the inauguration, as one of 16 couples who had a story related to planks in his political platform.

I think there's something here, not in a warm & cuddly, "oh let's tell stories & the world will be a beautiful place," but in a highly strategic way... but the specifics of that, I'm still thinking through. Any thoughts/comments on your end?