Box Turtle Bulletin

Bill Clinton Shifts on Marriage Equality

Former President Bill Clinton has taped a discussion with Anderson Cooper which will run tonight in which he explains his shift on same-sex marriage.

While the endorsement certainly could have been more stirring, let’s welcome this influential voice into the marriage equality camp.

DOMA Repeal Step One: Introduction

A collection of political leaders, led by Rep. Nadler, who truly wish to see marriage discrimination removed from federal law, have taken the first step towards marriage equality. (NYT blog)

Representatives Jerrold Nadler, Tammy Baldwin and Jared Polis appeared along with same-sex marriage advocates at a Tuesday morning news conference to announce the introduction of the bill, called the Respect for Marriage Act.
…
The bill already has roughly 90 cosponsors, though at least one name is conspicuously absent from that list: Representative Barney Frank, the openly gay Massachusetts Democrat. Speaker Nancy Pelosi also indicated earlier this year that repealing the law would not be a top priority.

The next step will be trying to encourage those who are reluctant to move forward on equality – or for tying their political careers to things that matter to our community – to consider equality as a principled goal.

This bill is not expected to pass this Congress. But it does let us know who is really committed when they tell us that they support equality for gay couples. There are now 90 congresspersons whom I’m now willing to listen to … and a few notable ones for whom I find that I have other causes that “will take up all of what I can do and maybe more” and perhaps they should seek a “better venue” elsewhere.

p.s. the bill does not yet seem to have caught the attention of the President. But I am absolutely certain that he will support this bill every bit as much as he has used his bully pulpit and influence with Congress to support other promises he made to our community during his campaign.

Bill To Repeal DOMA Coming Next Week

The Advocate is reporting that Rep. Jerrold Nadler (D-NY) will introduce legislation next Tuesday to repeal the Defense of Marriage Act. According to reporter Kerry Eleveld, the bill has just over fifty cosponsors. The bill’s introduction is slated to be announced during a press conference on September 15 at 11 a.m. EST.

DOJ Files Reply Brief In DOMA Challenge Case

The Department of Justice filed its Reply Brief (PDF: 29KB/9 pages) in the case of Smelt v. United States this morning. That case seeks to overturn the Defense of Marriage Act through the courts. The restrained language in this brief indicates that the Obama administration heard loud and clear the outrage over its prior brief in the same case.

This time, the DOJ brief clearly states the administration’s belief that the Defense of Marriage Act, while constitutional, is discriminatory and should be repealed by Congress (p. 2):

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

To reiterate that point, the White House issued this statement (no link yet):

Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.

Interesting though, this time the DOJ refutes the claim by other parties which are trying to intervene to defend DOMA, claiming that the defense of so-called “traditional marriage” is needed in order to further procreation — and the DOJ quotes none other than Justice Antonin Scalia’s Lawrence v Texas dissent for support (pp. 6-7):

Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

That last sentence has Focus On the Family’s Drive-By, err, Drive-Thru blog all up in arms, who called it “a new low on marriage.”

This case particular case challenging the constitutionality of DOMA is considered by many legal experts as rather weak. Another case filed in Massachusetts by the Gay and Lesbian Advocates and Defenders is considered a much stronger case. Last month, the Massachusetts Attorney General announced a second lawsuit to challenge DOMA’s constitutionality.

Bill Clinton Talks About His Role On DADT and DOMA

Former president Bill Clinton spoke yesterday as the keynote speaker at the Netroots Nation conference in Pittsburgh. His speech was interrupted by a question from LGBT activist Lane Hudson, asking Clinton about “Don’t Ask, Don’t Tell” and the Defense of Marriage Act.

Clinton was definitely put off about being interrupted, but when he finally got around to answering the question, Clinton pointed out that DADT passed Congress by a veto-proof majority in both houses, the result, he said, of inadequate LGBT lobbying in Congress at the time. I think he’s right on this one. He has gotten the blame for DADT’s passage, when it actually came about by a Democratically-controlled Congress acting to block his initiative to allow gays to serve in the military. And indeed, DADT did pass with a veto-proof majority, which removed his role in the matter.

But that doesn’t hold true for DOMA. Clinton says that he “didn’t like signing DOMA,” but did so to head off “a very reactionary Congress” which, he said, was set to pass a constitutional amendment. But he didn’t address why his 1996 presidential campaign purchased advertising on Christian and right wing radio bragging signing DOMA into law as proof of his “pro-family” credentials.

Update: Lane Hudson posted on Firedog Lake about why he interrupted Clinton’s speech:

I love Bill Clinton, but we all make mistakes. Sometimes we even are forced to do things we don\’t want to. That\’s why I was prepared to ask Bill Clinton a tough question last night as he delivered the opening keynote address at Netroots Nation 2009.

But it became clear there would be no questions. As I sat in the audience thinking about how Netroots Nation is about celebrating the most open forum of discussion ever to exist, it occurred to me that we were nothing more than a captive audience being talked to. One way communication was NOT what we were there to celebrate and advance.

Lane is certainly right about one thing: It’s pretty dumb to expect bloggers to sit down, shut up, and just listen. It’s even dumber when that same message comes from fellow bloggers and activists:

The immediate response shocked me at the time and still does. Those surrounding me yelled at me, booed, and told me to sit down. One elderly lady even told me to leave. While I was among the supposed most progressive audience in the country, they sought to silence someone asking a former President to speak out on behalf of repealing two laws that TOOK AWAY RIGHTS OF A MINORITY. I was shocked.

What was that expression about comforting the afflicted and afflicting the comfortable?

Click here to see a partial transcript of Pres. Clinton’s remarks

Maggie Gallagher In 1996: DOMA Is “Timid” Because Schools Can’t Expel Heather

According to her 1996 op-ed, she wasn’t exactly wild about the so-called “Defense of Marriage Act” because it was too timid:

But consider what the bill, in its timidity, does not do: It does not ban gay marriage. It doesn’t even require that states that adopt gay marriage do so through democratic means. To the citizens of Hawaii, where a handful of lawyers appear poised to impose gay marriage on the majority, the federal government turns its back, offering no relief. A nation which a hundred years ago unself-consciously refused to admit Utah as a state unless and until it renounced polygamy, no longer has enough moral confidence to insist on a common culture of marriage.

As I said: timid.

More significantly, Gallagher worried that with same-sex marriage, schools would not be able to expel Heather and her two mommies. She asked, “On what grounds, if homosexual marriage is no longer an oxymoron but a legal category, could schools keep them out?” Yes, she actually wrote that.

[Hat tip: Jeremy Hooper]

“Better Late Than Never”…

…is a cliché that’s rarely spoken of with any real sense of satisfaction. More often, it’s said in exasperation over the fact that the late is just barely better at all than the never. And there are times when you don’t even want to acknowledge that much, like when former President Bill Clinton says this:

Asked if he would commit his support for same-sex marriage, Clinton responded, “I’m basically in support.”

This spring, same-sex marriage was legalized in Iowa, Vermont, Connecticut, Maine and New Hampshire. In his most recent remarks on the subject, Clinton said, “I think all these states that do it should do it.” The former president, however, added that he does not believe that same-sex marriage is “a federal question.”

Now he says he’s “basically in support.” He’s out of office, his political career is over, and what he says and thinks carries all the weight of the latest Elizabeth Hasselbeck outburst on The View. This president, who now believes that same-sex marriage is not “a federal question” is the very president who made it a federal question when he signed the Defense of Marriage Act into law — and then he used that to brag about how “pro-family” he was in campaign commercials on Christian radio.

But now he’s “basically in support” and does not believe that it should be “a federal question.” The president who hasn’t held power in almost nine years is now better on the issue than the one who does. Thanks. Better late than never, I suppose.

Massachusetts AG Challenges DOMA In Court

The Massachusetts Attorney General has announced that the state is suing the U.S. government in U.S. Federal District Court over the Defense of Marriage Act which limits the definition of marriage to opposite sex couples. Massachusetts was the first state to legalize same-sex marriage, and state Attorney General Martha Coakley calls the federal law an “overreaching and discriminatory” infringement on rights and powers normally reserved for the states:

Before the law was passed, Coakley said, the federal government recognized that defining marital status was the “exclusive prerogative of the states.” Now, because of the U.S. law’s definition of marriage, same-sex couples are denied access to benefits given to heterosexual married couples, including federal income tax credits, employment benefits, retirement benefits, health insurance coverage and Social Security payments.

“In enacting DOMA, Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people,” the lawsuit states.

The lawsuit defends Massachusetts’ decision to allow same-sex marriages, saying it provides security and stability to families:

The lawsuit said that more than 16,000 same-sex couples have married in Massachusetts since the state Supreme Judicial Court ruled that gay marriage was legal in 2004 “and the security and stability of families has been strengthened in important ways throughout the state.”

“Despite these developments, same-sex couples in Massachusetts are still denied essential rights and protections because the federal Defense of Marriage Act [DOMA] interferes with the Commonwealth’s authority to define and regulate marriage,” the lawsuit said.

Opponents often point to the stabilizing influence of marriage as one reason opposite-sex marriage needs to be somehow “protected” from gays marrying. But in doing so, they ignore the fact that gays and lesbians are forming families — and raising children — without that same stabilizing influence. It’s good to see an Attorney General recognize that children of same-sex couples, if not the couples themselves, are no less deserving of that security and stability that heterosexual couples enjoy.

This is the second lawsuit filed in Massachusetts challenging DOMA. The Gay and Lesbian Advocates and Defenders (GLAD) is also challinging DOMA for denying married same-sex couples access to federal benefits that other married couples automatically receive.

The President Gave A Very Good Speech

The speech, the transcript of which is included below, was very good but also of little note. There’s not much there that President Barack Obama hasn’t said before when he met with some 250 to 300 LGBT guests in the East Room of the White House today. That gathering was billed as a commemoration for the 40th anniversary of the Stonewall Rebellion.

The President acknowledged Frank Kameny, who was fired in 1957 from the Army map service because he was gay. Later in the speech, he acknowledged the estimated 272 servicemembers who have been fired by the Pentagon since the start of his administration when he renewed his promise to repeal “Don’t Ask, Don’t Tell”:

Someday, I’m confident, we’ll look back at this transition and ask why it generated such angst, but as Commander-in-Chief, in a time of war, I do have a responsibility to see that this change is administered in a practical way and a way that takes over the long term.  That’s why I’ve asked the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to develop a plan for how to thoroughly implement a repeal.

I know that every day that passes without a resolution is a deep disappointment to those men and women who continue to be discharged under this policy — patriots who often possess critical language skills and years of training and who’ve served this country well.  But what I hope is that these cases underscore the urgency of reversing this policy not just because it’s the right thing to do, but because it is essential for our national security.

The President also acknowledged the impatience of the LGBT community:

And I know that many in this room don’t believe that progress has come fast enough, and I understand that.  It’s not for me to tell you to be patient, any more than it was for others to counsel patience to African Americans who were petitioning for equal rights a half century ago.

But I say this:  We have made progress and we will make more.  And I want you to know that I expect and hope to be judged not by words, not by promises I’ve made, but by the promises that my administration keeps.  …  We’ve been in office six months now.  I suspect that by the time this administration is over, I think you guys will have pretty good feelings about the Obama administration.

He also addressed the Defense of Marriage Act, saying:

I’ve called on Congress to repeal the so-called Defense of Marriage Act to help end discrimination — (applause) — to help end discrimination against same-sex couples in this country.  Now, I want to add we have a duty to uphold existing law, but I believe we must do so in a way that does not exacerbate old divides.  And fulfilling this duty in upholding the law in no way lessens my commitment to reversing this law.  I’ve made that clear.

He says he wants to “uphold existing law” in a way “that does not exacerbate old divides.” He apparently failed to understand that it was that very DOMA brief that exacerbated old divides. Maybe there’s only one side of the divide he wants to avoid exacerbating, but not the other.

That said, I thought it was an excellent speech overall. But speeches are relatively unimportant. It’s actions that matter.

But there were, I hope, some speeches in that room that will be more important than the President’s. Those guests were given the opportunity to meet with and exchange a few words with the President afterward. If any speech will matter in the long run, it will be their stories, pleas and promises, not the President’s. Let’s hope they took advantage of that opportunity.

Click here to see the transcript of the President’s remarks.

Did the DOJ Brief Compare Same-Sex Marriage to Incest and Pedophilia?

It’s been more than a week since Americablog’s John Aravosis posted a copy of the Justice Department’s brief (PDF: 164KB/54 pages) defending the Defense of Marriage Act in the case of Smelt v United States. When I first wrote about Avarosis’ post, I objected to his claim that the brief compares same-sex marriage to incest and pedophilia. He didn’t like that, and made his feelings known in a comment accusing me of being “comfortable” with someone discussing my relationships and ” their mind suddenly goes to someone marrying an underage (legal) child.”

Aravisis also protested, “I never once mentioned pedophilia. I did, however, mention pederasty…” At the time, I suppose he might have had a point. His post didn’t actually use the word “pedophilia.” Instead, his headline screamed that the brief “[i]nvokes incest and marrying children.” That sounded to me an awful lot like pedophilia, but if he meant pederasty, then he was technically correct. But if he really meant pederasty, then why did he and fellow Americablog writer Joe Sudbay subsequently use the word “pedophilia” in just about every major post they have written on the subject since then?

The whole “Incest and pedophilia” meme has now gone viral, spreading around the blogosphere and mainstream media with very few stopping to question whether it’s really true. The line certainly grabs a lot of attention, and Avarosis’ assertion feels true to so many of us who have seen precisely this same comparison made by others throughout our struggle for equality. The claim is an old standby that we’ve seen countless time before.

The problem is, though, that when I read the brief on Friday a week ago, I didn’t see the comparison. But because so many people have taken that ball and run with it, I actually began to question myself and wonder if I really read what I thought I read. Gee, I thought, maybe I was wrong. Maybe I just missed it.

I’m a strong believer in going directly to the source material myself rather than relying on someone else’s word for it. That is, after all, the whole rationale behind this blog. So I went back and read the brief again, and I encourage you to do the same. First, download the brief (PDF: 164KB/54 pages). Go to page 1 of the brief (the eleventh page of the PDF document), and you will find this summary of what this case is all about:

This case does not call upon the Court to pass judgment, however, on the legal or moral right of same-sex couples, such as plaintiffs here, to be married. Plaintiffs are married, and their challenge to the federal Defense of Marriage Act (“DOMA”) poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by States that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this Court, the answer to these questions must be no.

In other words, there are two questions before the court, and each question relates to one of two specific sections of the Defense of Marriage Act::

1. Can a married couple who are legally married in one state demand benefits from another state? Section 2 of DOMA currently prohibits this.
2. Can a married couple who are legally married in one state demand benefits from the federal government? Section 3 of DOMA currently prohibits this.

John Avarosis’ “incest and pedophilia” meme comes from the portion of the brief which was trying to answer the first question. Plaintiffs argue that DOMA’s Section 2 violates the “Full Faith and Credit” clause of the U.S. Constitution, the clause that requires states to recognize contracts entered into in other states. The DOJ argues on page 17 of the brief that there are already exceptions to that clause in contracts under certain circumstances, and that this exception already applies to marriages as well. Now read pages 17 and 18  (27th and 28th page of the PDF document) very carefully, especially this first paragraph:

The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State’s policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

Accordingly, Section 2 of DOMA hews to long-established principles in relation to the recognition of marriages performed in other States, and ensures that States may continue to rely on their own public policies to reject (or accept) requests to recognize same-sex marriages. The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMA. Surely the Full Faith and Credit Clause cannot be read, in light of these established principles, to preclude a State from applying its own definition of marriage in situations involving same-sex couples, married elsewhere, who are domiciled within its own borders. That Clause clearly does not mandate such interference with “long established and still subsisting choice-of-law practices.” Sun Oil Co., 486 U.S. at 728-29.

Okay, did anyone happen to catch the sentence which says that same-sex marriage is the same as incest and pedophilia? Me neither. But John Aravosis thinks the whole first paragraph did exactly that. But pay very close attention to what this section is saying — and more importantly, what it is not saying.

The brief recognizes that different states have long had different laws regulating who can get married and who cannot. And because states already regulate marriages differently from one state to another, they are (according to the DOJ anyway) free to determine whether a marriage in one state is legal in another. And what are some of those differences? Kinship and age of consent. Let’s dive in.

Comparison to Incest?
Many states allow marriage between first cousins (New Mexico is cited in this brief), while others do not. Those that do, do not consider such marriages to be incest — it’s not in New Mexico. And in the case of Arizona, which the DOJ cites as a state that does not allow first cousins to marry, there is an exception: first cousins are allowed to marry in Arizona, as long as both are sixty-five years old or older, or if they can prove that one of them cannot reproduce. So even in Arizona, the prohibition has nothing to do with incest. If marriage between first cousins were incest, how would it magically stop being incest once both partners turn 65 or one partner become infertile?

Different jurisdictions have many different limits on kinship, and many have even provided exceptions to those limits. The DOJ brief says that very Catholic and socially-conservative Italy allows uncles to marry nieces. This is a new one on me, but if it’s true, then it means that Italy does not consider this to be incest. But guess what? Minnesota might be willing to consider uncle-niece marriages to be kosher as well. That state prohibits marriage between uncles and nieces, as well as between first cousins, “except as to marriages permitted by the established customs of aboriginal cultures.” So Caucasian nieces marrying their uncle is incestuous but Indians not? Of course not. But it does mean that if an Italian uncle-neice couple were to move to Minnesota and successfully claim to be from an “aboriginal culture” (i.e. “characteristic of or relating to people inhabiting a region from the beginning”), then their would be perfectly acceptable in Minnesota. Minnesota would not see it as incestuous.

And if Italian couples can’t claim to be aboriginal for Minnesota’s purposes, then Rhode Island can provide safe haven for at least a few of those Italian couples. That state has a similar religious exception for Jews.

But none of this has anything to do with incest. Many states have different definitions for incest verses definitions for who can marry based on kinship.  Rhode Island, with its many kinship prohibitions against marriage for its non-religious Jewish residents, has nevertheless repealed its incest law in 1989. In other words, there is legally no such thing as incest in Rhode Island. New Jersey doesn’t apply any penalties for incest if both parties are over the age of 18, but they do have all sorts of restrictions on marriage regardless of age. Kentucky prohibits first cousins from marrying, but that’s not because those unions would be prosecuted under Kentucky’s incest law. That law only defines incest as sex with “an ancestor, descendant, brother, or sister” By the way, if you asked most ordinary people on the street for a definition for incest, that is probably the definition they would most likely come up with. Not the convoluted, inconsistent definitions for allowable kinships our states have come up with.

These statutes are as much about what states allow as they are about what states prohibit. Citing a litany of the many differences in the degrees kinships that states allow is not the same as invoking incest. The DOJ brief simply makes no such comparison, nor does it declare any sort of “equivalency.” It merely states, very briefly and not very completely, what the situation is right now in terms of allowable kinship.

Comparison to Pedophilia?
Age is another common restriction placed on marriage, and there are similarly wide variations on how different jurisdictions define age of consent for marriage. Most set that age of consent at 18, although you have to wait until you’re 21 to marry in Puerto Rico without parental consent. So does that mean that a Puerto Rican groom marrying a 20-year-old Puerto Rican bride in the state of New Jersey is engaging in pedophilia? Of course not. But that’s the standard you’d have to set if you wanted to claim that this brief compares same-sex marriage to incest.

What’s more, all jurisdictions allow exceptions with parental consent, with many going as low as 15 years of age. A few states allow even younger ages to marry under certain circumstances, and none of this is considered pedophilia either. California, for example, has no lower limit as long as a court goes along with it. And yet, back in Puerto Rico, if you’re a man you can’t get married if you’re under 18 even if you do have your parents’ blessing (for women, the age drops to 16 with parental consent; all bets are off if the woman is pregnant.)

Want more proof that this has little to do with pedophilia? How about this: states often set the age of consent for marriage very differently from their age of consent for sex. Where most states set the age of consent for marriage at 18, the age of sexual consent is most commonly set at 16 years if age.

And many provide for even lower ages of consent for sexual activity when the two partners are close in age. In Alaska, that age can go as low as 13 under certain circumstances. Same with  Connecticut, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, North Carolina, Pennsylvania, South Dakota. In Arkansas, Louisiana and Nebraska, that limit can even go as low as the age of 12. Some states appear to have no such lower limit when the two partners are within a few years of each other (Maryland and New York, for example). But no matter how much perfectly legal, non-pedophilic sex those exceptionally young lovers may be having, they can’t get married under those states’ marriage laws.

Still not convinced that this isn’t about pedophilia? Well then how about this: in every one of those states which provide exemptions to their age of sexual consent when the two sex partners’ ages are close to each other, those exemptions completely disappear under those same states’ age of marital consent statutes. The purpose for setting an age of consent for marriage has less to do with statutory rape or pedophilia, and more to do with trying to keep young adults or teenagers from rushing into marriage when both are very young — a much more common situation than that of old geezers trying to legally take advantage of children.

No comparison
Most states right now regulate marriages according to three criteria: age, kinship and gender. It’s not “equating” same-sex marriages with incest and pedophilia to simply point out that these are, right now, the three primary areas of regulation. Furthermore, pointing out the many ways in which states define allowable kinships in marriage is not “equating” same-sex marriage with incest. And describing all the ways in which different states allow people of different ages to marry is not “equating” same-sex marriage with pedophilia.

But that is all that the DOJ brief did, and as far as this particular topic is concerned, the brief stopped there. It simply described the state of the law as it is right now. Whether it is an acceptable state of the law (the DOJ apparently thinks so) or not (and I most definitely do not think it’s acceptable where same-sex marriage is concerned) is a completely different matter.

(And by the way, in case there is any confusion, I strongly disagree with the DOJ when they claim, for example, that marriages between first cousins go unrecognized in many states. They cited the case of New Mexico allowing first cousins to marry but Arizona prohibiting it. But I know for a fact that if first cousins marry in New Mexico and move to Arizona, the Arizona Department of Revenue isn’t going to bring them up on charges of perjury if they checked the “married” box on state tax returns. States do, by default and as a matter of course, recognize marriages from other states even when those marriages would not be legal in their own states. Only same-sex marriages are singled out for special scrutiny and treatment.)

Offensive Nevertheless
Okay, so the brief doesn’t say same-sex marriage is equivalent to incest or pedophilia. Big deal. It’s still patently contemptuous of gays and lesbians even without that. For one, the DOJ lawyers seem to think that gay people, deep down, don’t really exist. How else can one explain this (page 27)?

Even viewing the right asserted here as the right of gay and lesbian couples to marry, DOMA does not directly or substantially interfere with the ability of anyone, including homosexuals, to marry the individual of his or her choice. …Hence, under DOMA, gay and lesbian couples suffer no greater interference with their ability to obtain recognition of their marriages, either in the States where they were wed, or elsewhere.

That could only be true under one condition: that homosexuals can “marry the individual of his or her choice” as long as that individual is of the opposite sex. In other words, just because I’m gay, it doesn’t mean I can’t settle down with a nice Catholic girl (or a nice religious Jewish niece if I lived in Rhode Island) and have that marriage go unchallenged virtually everywhere I go. That sort of argument is precisely the stuff we’ve heard from some of our more unhinged anti-gay opponents.

And then there’s this bit of creative “logic” on page 27-28:

…gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.

Got that? We’re not denied anything, we’re just not allowed the extra stuff (and obligations) that heterosexual couples get when they’re married. In the eyes of the Justice Department, that’s not discrimination. Maybe women who are denied promotions aren’t discriminated against because they still have a job; they just don’t get the extra pay and perks the employer gave to a lesser-qualified man.

But even if it is discrimination, that’s okay too, according to the Department of Justice (page 2):

Thus, by defining “marriage” and “spouse” as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.

That’s right. Congress can choose to deny its “scarce resources” to a very tiny proportion of married couples just because it wants to. Never mind that those same married couples pay taxes just like everyone else.

It doesn’t end  there. There’s so much more in this brief that’s risible, like the continual reference to a “new form of marriage,” a phrase that may as well place scare-quotes around the word “marriage” when referring to same-sex couples. And to add insult to injury, the brief then contrasts that “new form of marriage” to what it calls “traditional marriage,” which, inexplicably, is likely meant to preclude the traditional and biblical examples of brother-sister marriages, non-consensual marriages and plural marriages, although it doesn’t explicitly say so.

This brief’s contemptuous tone is breathtaking. LGBT advocates are right to denounce it and to encourage very direct and vigorous avenues of protest to make our anger known. I’m glad to see the LGBT community call Obama and the Democratic Party on the carpet for this, and I hope that many more join them.

It’s Important To Speak The Truth
I started this web site because I wanted to expose our opponents when they distort the written record. That is the driving force behind so much of what we do here at BTB. But if I see similar examples among our own advocates — including those advocates who do wonderful work otherwise — how can I remain silent?

This definitely isn’t the pathway to mega-blogger status. I’m probably going to be called self-loathing, an appeaser, an Uncle Tom or an Obama apologist — you name it. Or, just as likely, this post may be ignored. But that’s okay. I’d much rather speak the truth than repeat talking points intended solely to inflame. The “incest and pedophilia” meme is the latter, not the former, and it’s been seriously bugging me all week. There are plenty of reasons to be outraged by this DOJ brief, but no matter how you slice it, it just doesn’t say what many of our leading advocates claim it does.

I like John Aravosis a lot. He has been unparalleled in covering the ongoing developments surrounding the Obama administration’s reactions to the outrage this brief has generated. No one else has stayed on top of this story the way he has.

But it was Karl Rove who perfected the art of manufactured outrage, and it reflects poorly on us when we deploy the same tactic. If there’s anything we should have learned from the Bush administration, it’s that such behavior will weaken our position, not strengthen it. It’s time we gave it a rest and be outraged over what’s really there.

The LGBT Community Finds Its Voice. It Turns Out It’s In Its Wallet.

LGBT advocates have continued to express their outrage over the Justice Department’s DOMA brief. That brief has sparked a rebellion among LGBT Democrats who have continued to pull out of next week’s DNC fundraiser organized by the LGBT Leadership Conference and featuring Vice-president Joe Biden. Eleven LGBT leaders have announced that they will not attend the fundraising event. Even the Stonewall Democrats have withdrawn their support.

That has set the White House on a mad rush to try to quell the rebellion. Two top Obama aides, Deputy Chief of Staff Jim Messina and Political Director Patrick Gaspard, will hold an emergency conference call on Monday afternoon with the LGBT caucus of the Democratic National Committee (DNC). The reported purpose of the call is to provide “important updates on the Administration’s LGBT agenda and how we move forward.” That move is in addition to news from earlier today that the Justice Department will meet with LGBT groups to discuss how it deals with DOMA cases going forward.

This follows President Barack Obama’s hastily called Oval Office photo-op on Wednesday to sign a Presidential Memorandum directing federal agencies to adopt policies to treat their LGBT employees on equal footing with their other employees — although health and retirement benefits aren’t included because they are barred by federal law. The White House has also directed the Census Bureau to determine changes in its procedures to allow same-sex unions to be counted.

The White House has finally gotten the message that they have stumbled badly. After months of silence and footdragging on LGBT issues, they have now come to understand that they are on the verge of losing one of their most reliable constituencies. And so over the past three days, we’ve seen an unprecedented string of minor initiatives. None of these small steps are earth-shattering; all of them could have been thrown together at any time in the administration’s first 100 days. But the fact that they are coming out now tells us that the pressure exerted by the LGBT community this week has had an effect. It also tells us that only through continued unrelenting pressure will the White House and Congress to take our concerns seriously.

I’m glad the pressure is working and we appear to have the White House’s attention. We now need to grab Congress’s attention as well. We need to make House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid to feel the same heat as we’ve applied to President Obama.

And we also need to put our money where it will really make a difference. Right now the best place is firmly in our own bank accounts and not in the DNC’s. They say money talks, but people really notice the silence when it’s gone missing.

DOJ Reportedly To Meet With LGBT Groups

In the wake of the nationwide anger being expressed over the Justice Department’s insulting court brief defending the so-called “Defense of Marriage Act,” the Obama administration has begun to react with some very limited, short term steps to try to assuage that anger. On Wednesday, President Barack Obama signed a Presidential Memorandum directing federal agencies to adopt policies to treat their LGBT employees on equal footing with their other employees. (That memorandum, however, doesn’t include key employment benefits like health care or retirement, which are prohibited by federal law.) The White House has also directed the Census Bureau to determine changes in its procedures to allow same-sex unions to be counted.

Both steps however are very tiny steps, and they have done little to quell the outrage over the DOJ’s brief. That anger continues to threaten the Democratic National Committee’s LGBT fundraiser slated for next week.

Now The Plum Line blog is reporting that the Justice Department has scheduled a private meeting with major LGBT groups for next week:

Tracy Russo, a spokesperson for Justice, confirmed the meeting to me, after I posted below that top gay rights lawyers were miffed that administration lawyers had rebuffed their requests to meet and discuss ongoing litigation involving DOMA.

At the meeting — which hasn\’t been announced and is expected to include leading gay rights groups like GLAD and Lambda Legal — both sides are expected to hash out how to proceed with pending DOMA cases.

The Justice Department is due to file another brief by June 29 in a lawsuit filed by Gay and Lesbian Advocates and Defenders in Boston\’s Federal District Court on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. That DOMA challenge, Gill v. Office of Personel Management is considered a much stronger suit than Smelt v. United States, which the recent controversial DOJ brief addressed.

I don’t know whether LGBT groups would be permitted to weigh in on Gill v. OPM specifically. But if this meeting really does happen, it does appear to be a sign that the Justice Department may try to head off the kind of missteps it made with its Smelt v. US filing.

And if that’s the case, then it appears that the Obama Administration may have begun to recover its sense of hearing. But the only lesson I think we can safely draw from all of this is to keep shouting.

Mike Rogers: I Want Equal Treatment For Each Of Those Three Hundred Million Americans

Mike Rogers, on the president’s memorandum on limited partnership benefits, the repeal of DOMA, and “cutting off the spigot” to the Democratic Party.

Mainstream Press Noticing LGBT Anger At Obama

It’s very rare to see any the squabbles and controversies that play out on LGBT blogs and news organizations show up beyond our little playground. Huge events and debates can rage in the blogosphere with virtually no notice from the mainstream press. Not this time. Many of the majors are noticing the anger that many LGBT people feel over the Justice Department’s DOMA brief, as well as the cynical attempts by the Obama administration to try to change the subject. More importantly, the mainstream press is noticing that those attempts aren’t working. We already noted editorials from the New York Times and the Los Angeles Times. Here’s CNN:

President Obama’s decision to grant some benefits to the same-sex partners of federal employees is seen by some as his attempt to extend an olive branch to the gay and lesbian community, but critics say it’s “too little, too late.”

“It seems to me at least to be a nice gesture, but a disappointment,” said Richard Kim, a senior editor at The Nation magazine.

…The rancor threatens to disrupt a big Democratic National Committee gay fundraiser in Washington next week. Vice President Biden is the guest at next Thursday’s DNC’s LBGT Leadership Council 10th Annual Dinner in Washington. Critics are calling for Frank and other gay congressional leaders to boycott the dinner, for which tickets go for $1,000 to $30,000 a plate. Activist David Mixner and blogger Andy Towle, two well-known gay rights advocates, announced that they were pulling out, citing disappointment with the DOMA brief.

The Associated Press has gotten into the act as well: 

President Barack Obama signaled to gay rights activists Wednesday that he’s listening to their priorities by extending some benefits to same-sex partners of federal employees. But he didn’t give them even close to everything they want, bringing growing anger against the president to the surface.

Obama aides urged gays and lesbians to have patience with the new White House’s slow-and-steady approach to the politically charged topic. But his critics — and there were many — saw Wednesday’s incremental move to expand gay rights as little more than pandering to a reliably Democratic voting bloc, with the primary aim not of making policy more fair but of cutting short a fundraising boycott.

“When a president tells you he’s going to be different, you believe him,” said John Aravosis, a Washington-based gay activist. “It’s not that he didn’t follow through on his promises, he stabbed us in the back.”

Here’s USA Today’s blog, The Oval:

Response from gay rights groups to President Obama’s offer of some federal benefits to same-sex partners of government employees: The sound of one hand clapping.

Leaders of the gay community are making it clear that the president’s action, expected at a White House signing ceremony later this afternoon, doesn’t make up for the administration’s refusal to abandon the Defense of Marriage Act, a 1996 law prohibiting federal recognition of marriages between same sex couples. As we reported earlier this morning, gay rights groups are incensed over a legal brief that the Justice Department filed last week in defense of the law.

Newsweek’s blog, The Gaggle, asks, “Can Obama win back the gay community?”

[L]ast week the Obama Justice Department filed a legal brief in federal court defending DOMA against a lawsuit that claims the act is unconstitutional. In fact, in legal terms, the Obama aides equated same sex marriage to incest, a move that horrified gay rights groups including the Human Rights Campaign. Coupled with Obama\’s silence on another campaign promise—his pledge to repeal the “Don\’t Ask, Don\’t Tell” policy in the military—several high-profile gay activists announced they would boycott a DNC fundraiser scheduled for next week featuring Vice President Joe Biden and several gay and lesbian members of Congress, including Barney Frank and Tammy Baldwin. All the bad publicity prompted the White House to schedule Obama\’s announcement today, though an administration official insisted to Newsweek that the “memo” had been in the works all along.

The reaction to Obama\’s “memo” has been pretty lukewarm so far. HRC, in a statement, described it merely as a “first brick.” But everybody is watching very closely to see what Obama will actually say. Will he repeat his vow to repeal DOMA in spite of last week’s legal brief? That’s one rumor going around today, though White House aides won’t comment. Meanwhile, David Mixner, a prominent gay rights activist who campaigned for Obama, says he’s still boycotting the fundraiser next week—unless he hears Obama say something amazing today. “I feel betrayed,” he told Newsweek in an interview this morning. “People are really angry.” He said it\’s not enough for Obama and his aides to hint that they\’ll do more for the gay community in the future. “We heard that during the Clinton years,” Mixner said. “Too many pressing issues? That\’s code for never.”

Unfortunately, not all of the reporting has been accurate. Most MSM news reports omit the fact that health benefits aren’t part of the President’s latest memorandum. In fact, the Los Angeles Times erroneously hailed the President’s move“to extend healthcare and other benefits to the same-sex partners of federal employees.” But the Times did note the anger which led to the President’s latest move:

Nothing, however, matches the outrage provoked by last week’s court filing in Santa Ana supporting the Defense of Marriage Act. The fact that the brief was filed during Gay Pride Month, which Obama saluted with a formal proclamation, only compounded the sense of insult.

“You have some appointments that have been good and a proclamation,” said [Ken] Sherrill, who has written extensively on the history of the gay rights movement. “And then two tangible areas where the administration has done something wrongheaded and offensive. Doing nothing at all would have been a helluva lot better.”

NY Times: Obama’s Non-Health “Benefits” Timed To Stave Off Fundraising Disaster

Late yesterday, we learned that President Barack Obama was going to sign a presidential memorandum (rather than a more permanent presidential order) granting partner benefits for same-sex partners of federal employees. Then we learned that because of the so-called “Defense of Marriage Act” — which the Obama administration chose to defend in court with an insulting DOJ brief — bars the extension of health and retirement benefits to same-sex partners. Which means that the presidential memorandum will only address things like relocation expenses.

New York Times is reporting that the only reason the Obama administration is doing this is to help salvage next week’s fundraiser:

But administration officials said the timing of the announcement was intended to help contain the growing furor among gay rights groups. Several gay donors withdrew their sponsorship of a Democratic National Committee fund-raising event next week, where Vice President Joseph R. Biden Jr. is scheduled to speak.

This does not appear to be mollifying anyone as far as I have been able to learn. The rebellion continues, with at least five prominent LGBT advocates saying that they are pulling out of the fundraiser.