Tag: gay rights

A small victory over DOMA

Buried amid the hoopla surrounding that basketball player heading to Miami is this story, a court ruling overturning the federal Defense of Marriage Act:

In the case brought by Attorney General Martha Coakley, Judge Tauro found that the 1996 law, known as the Defense of Marriage Act, or DOMA, compels Massachusetts to discriminate against its own citizens in order to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to a handful of federal benefits. In that case, Judge Tauro agreed that the federal law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

Neither suit challenged a separate provision of the Defense of Marriage Act that says states do not have to recognize same-sex marriages performed in other states. But if the cases make their way to the Supreme Court and are upheld, gay and lesbian couples in states that recognize same-sex marriage will be eligible for federal benefits that are now granted only to heterosexual married couples.

“This court has determined that it is clearly within the authority of the commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights and privileges to which they are entitled by virtue of their marital status,” Judge Tauro wrote in the case brought by Ms. Coakley. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state.”

The court added:

In the Coakley case, the judge held that that federal restrictions on funding for states that recognize same-sex marriage violates the 10th Amendment, the part of the Constitution that declares that rights not explicitly granted to the federal government, or denied to the states, belong to the states.

There are scholars — including some who support same-sex marriage — who think the ruling will be overturned when it hits the Supreme Court and not because the court has moved to the right.

“What an amazing set of opinions,” said Jack M. Balkin, a professor at Yale Law School. “No chance they’ll be held up on appeal.”

Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government’s longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more. The opinion in the advocacy group’s case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern.

“These two opinions are at war with themselves,” he said.

The arguments concerning the 10th Amendment and the spending clause, if upheld, would “take down a wide swath of programs — you can’t even list the number of programs that would be affected,” he said.

By citing the 10th Amendment and making what is essentially a states’ rights argument, Professor Balkin said Judge Tauro was “attempting to hoist conservatives by their own petard, by saying: ‘You like the 10th Amendment? I’ll give you the 10th Amendment! I’ll strike down DOMA!’ ”

I hope he’s wrong. But in the meantime, the ruling may have created an opening through which same-sex marriage supporters can slide to win the day.

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Best that we could do?

I understand political realities. But I also demand fairness.

So the slow, painful repeal of “Don’t Ask, Don’t Tell” that is making its way through Congress as we speak has to be classified as a small victory for human rights.

And yet, it is far too slow, bowing toward a notion of “realism” and “pragmatism” that allows fear to trump fairness for gay and lesbian soldiers, granting the homophobes in the military far too much leeway.

On a related but separate note, the DADT battle makes me a bit uncomfortable, because of the inherent contradition: I oppose militarism and the expansion of the military, tend toward pacificism and loathe the strain i our culture that glorifies the soldier and the warrior ethos, while also realizing that the military can play a normalizing role in society, as it did for African Americans when the military was finally desegregated under Truman.

As things stand now, gays and lesbians are not considered equal citizens because they are prohibited from serving openly in an institution whose members many view (unfortunately) as demonstrating the absolute height of citizenship. The repeal of DADT will make it more difficult for the neanderthals and homophobe to continue to insist that gays and lesbians must be treated differently. The edifice of discrimination — the marriage ban and all that comes with it, the lack of antidiscrimination statutes covering the LGBT community in too many states and the general aversion too many still feel toward LGBT people — becomes weaker once DADT is a thing of the past.

So slow, deliberat progress is not a bad thing, but the LGBT community — and those of us who support its cause — need to push hard to make sure the progress is consistetnt and begins to pick up steam. We should not be satisfied until there are no distinctions, until each American — hell, every human being — has the same rights and privileges and can live the lives each of us choose to live without interference from our neighbors.

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For gay couples, a fair accounting

Information is power, as they say. For gay and lesbian couples, the official U.S. Census now underway may just offer the kind of information needed to generate enough political power to end the charade that keeps them from getting married under civil law.

The Census, “for the first time,” will give same-sex couples “the opportunity to call their union a marriage in an official government document.”

In a policy shift experts say could radically reshape demographic profiles of the gay community, the U.S. Census this year will let same-sex couples label themselves as husband or wife even if their relationships are not recognized by law.

The move could have wide-ranging policy implications, as Gary Gates, a demographer with the University of California, Los Angeles,  said in today’s Star-Ledger. It could “offer a rich source of data about how same-sex couples describe themselves, as well as their family structure.”

And that should change the debate from one based on misinformation and innuendo to one based on fact.

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Ending ‘Don’t Ask, Don’t Tell,’ but only at the military’s pace

From a progressive standpoint, the most significant positive to come out of the president’s state of the union last week was his commitment to ending the military’s arbitrary and discriminatory “Don’t Ask, Don’t Tell” policy.

In practice, however, expect the military to drag its feet — even if top military officials say they also are committed.

Today, for instance, Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, and Defense Secretary Robert Gates told Congress the military was committed to the repeal, with Mullen offering some pretty strong language:

“No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens,” Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, told the Senate Armed Services Committee. He said it was his personal belief that “allowing gays and lesbians to serve openly would be the right thing to do.”

However, there is a caveat. The repeal is going to be phased in over a number of years — to give the military time to address some of what it considers to be sticky issues:

Mr. Gates said that the review would examine changes that might have to be made to Pentagon policies on benefits, base housing, fraternization and misconduct and that it would also study the potential effect on unit cohesion, recruiting and retention.

For further information, Mr. Gates said he would ask the Rand Corporation to update a 1993 study on the effect of allowing gay men and lesbians to serve openly. That study concluded that gay service members could serve openly if the policy was given strong support from the military’s senior leaders.

Mr. Gates and Admiral Mullen were responding to President Obama’s campaign pledge to end “don’t ask, don’t tell,” which the president, after a year of saying of little about it, reaffirmed in his State of the Union address last week.

“The question before us is not whether the military prepares to make this change, but how we best prepare for it,” Mr. Gates told the committee. “We have received our orders from the commander in chief and we are moving out accordingly. However, we also can only take this process so far as the ultimate decision rests with you, the Congress.”

This might seem reasonable, but it leaves gay and lesbian soldiers in limbo and signals to straight members of the military that their gay and lesbian comrades are somehow different — so different, in fact, that even with the lifting of sanctions against them they must be treated differently.

The military was desegregated — which meant mixing black soldiers with racist whites — and women have been serving with only minor incident (on the part of neanderthal men who should be drummed out). Gay and lesbian soldiers have been serving honorably and will continue to do so.

Don’t ask, just end the policy.

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