Today’s announcement marks a proud day for our country and for the President. For those of us who have been working towards marriage equality for many years, the impact of having the support of the President of the United States is incredibly powerful. As President Obama made clear in his comments today, marriage equality for all people is an idea whose time has come. Despite setbacks like the results from North Carolina last night, it’s more obvious than ever that the momentum is on our side.
In recent years, more and more Americans have come to understand that preventing loving same-sex couples from getting married causes real harm to the people they care about. In families and communities across the country, Americans are coming to the same conclusion as the President: when two people make a public commitment to love and care for each other, that’s a marriage no matter what the gender of the people involved.
Today the President did the right thing. For thousands of supporters who donated, canvassed and phone banked to help elect Barack Obama in 2008, this is a powerful reminder of why we felt so passionately about this President in the first place.
Now, we must redouble our efforts to knock down one of the biggest barriers to full legal equality nationwide: the discriminatory Defense of Marriage Act (DOMA).
With your continued dedication to core American values like Equality, and your support of our work expand the promise of our country and our Constitution to all families, together, we’ll Dump DOMA and achieve basic fairness for all: the American Way.
Back in July, I had the privilege of attending the Senate Judiciary Committee hearing on the Respect for Marriage Act. Today brought me to another historic moment: the passage of that bill out of Committee.
Senator Feinstein, the bill’s chief sponsor, offered a perfect description of how times have changed.
“When DOMA passed 15 years ago, no state permitted same-sex marriage. Today, 6 states and the District of Columbia do: Vermont, Connecticut, Iowa, New York, New Hampshire, and Massachusetts.
So, today there are 131,000-plus legally married same-sex couples in this country.
These changes reflect a firmly-established legal principle in this country: marriage is a legal preserve of the states.
DOMA infringes on this state authority by requiring the federal government to disregard state law, and deny more than 1,100 federal rights and benefits to which all other legally married couples are entitled.”
Here are a mere few of the many highlights from the other nine Democrats on the Committee, all nine among the bill’s thirty cosponsors.
“The Federal Government should not deny recognition and protection to the thousands of Americans who are lawfully married under their state law. We must repeal DOMA to ensure the freedom and equality of all of our citizens.”
“I voted for DOMA. I believe I was wrong.”
“If this is called to the floor and only the 30 cosponsors vote for it, it’s worth the effort.”
“But every year, when they fill out their federal tax return, Javen and Oby have to check the ‘single’ box. They have to sign that form—under penalty of perjury. Every year, DOMA forces Javen and Oby to lie under oath. Every year, Javen and Oby pay taxes to a government that says their marriage is a fiction, even though they are a married couple—in the eyes of the God that they worship, in the eyes of their friends and family, and in the eyes of the state of Connecticut.”
“And you know, when we do pass it, straight people aren’t suddenly going to become gay. Straight people aren’t going to stop getting married. No, we’re going to be just fine. What will happen is that millions upon millions of lesbian and gay Americans aren’t going to suffer the indignity of having their own government tell them that their marriages are no good. What will happen is that it will be easier for those people to start and protect their families.”
"This is a truly important day in our nation's journey toward equality," Senator Coons said. "We’ve made tremendous progress and I am proud of the committee's vote today. As more Americans join the cause of equality, the Senate is changing with it. Equality is never a special interest — it is a fundamental interest of this country. Whether the Respect for Marriage Act moves to the floor in this Congress or the next, we will eventually repeal DOMA. We must redouble our efforts to show that the love and commitment shared by same-sex couples is of equal value as that shared by heterosexual couples."
This week, there was a new development in a California case where a federal judge on the U.S. Court of Appeals for the Ninth Circuit in February ruled the Defense of Marriage Act unconstitutional. The Los Angeles Times reports the new development:
In a legal end-run around the 1996 Defense of Marriage Act, a federal judge Wednesday ordered compensation for [Brad Levenson,] a Los Angeles man denied federal employee benefits for his spouse because they are both men. ...
[In February, U.S. 9th Circuit Court of Appeals Judge Stephen] Reinhardt, who is responsible for resolving employee disputes for public defenders within the 9th Circuit, had ordered the Administrative Office of the U.S. Courts to process Levenson's application for spousal benefits. But the federal Office of Personnel Management stepped in to derail the enrollment, citing the Defense of Marriage Act, which prohibits federal government recognition of same-sex marriage.
Levenson appealed, seeking either an independently contracted benefits package for Sears or compensation for the costs they incurred in the absence of coverage. Reinhardt ordered the latter, based on a back pay provision in the law governing federal defenders' employment.
As reported on this blog back in February, this case is less than it might seem at first blush. DOMA remains the law of the land. Rather than being a traditional court case, this is an internal employee grievance procedure within the office of federal public defenders of the Ninth Circuit. As a result, the judge is not acting in his capacity as a judge. Instead, he is acting in his capacity as the designated administrative decision-maker for the Ninth Circuit's Standing Committee on Federal Public Defenders.
Since it's not a traditional court case, it imposes no binding precedent and is not going to be appealed to the Supreme Court.
Nevertheless, the new order does add an important new element to the conversation over DOMA's constitutionality. And coming from a federal circuit court judge, its reasoning has resonance, even if it is not binding precedent.
In the new order, Judge Reinhardt repeats his February analysis of DOMA's constitutional infirmities, rejecting various arguments in its favor. He also addresses a new argument and determines that it, too, fails under the rational basis level of scrutiny, the easiest of standards to meet:
Recently, the government has advanced an additional argument in defense of DOMA: that the statute serves a legitimate governmental interest in maintaining a consistent definition of marriage at the federal level for purposes of distributing federal benefits while individual states consider how to resolve the issue of marriage equality for same-sex couples. ... Even under the more deferential rational basis review, however, this argument fails. DOMA did not preserve the status quo vis-à-vis the relationship between federal and state definitions of marriage; to the contrary, it disrupted the long-standing practice of the federal government deferring to each state's decisions as to the requirements for a valid marriage. ...
Congress thus sided with those states that would limit marriage to opposite-sex couples, and against those states that would recognize the marriages of same-sex couples. Taking that position did not further any government interest in neutrality, if indeed such an interest exists.
And just where did this additional argument come from? From Barack Obama's very own Justice Department.
Equality cannot wait. It's time to dump DOMA.
In many ways it was a very good week for anyone interested in LGBT equality. Marriage equality legislation took a big step forward in the District of Columbia, federal hate crimes legislation was signed into law after a decade long fight, and today the President reauthorized the Ryan White Act and announced that he would take the final steps to rescind the HIV travel ban. So it’s too bad that the week ended on a disappointing note.
In a brief filed today in federal court, the DOJ moved to dismiss the challenge against DOMA lodged by the state of Massachusetts on behalf of the legally married same-sex couples in the state who are nevertheless being denied federal benefits.
To be clear: Massachusetts is right in this case and the DOJ is wrong. DOMA is unconstitutional and should be struck down.
But the brief (much like most of the other briefs we’ve seen) took pains to point out that the President is defending the law not because he likes it, but because he’s compelled to. In fact, the brief points out, the President is opposed to DOMA and supports its repeal.
Great. Let’s do that.
It’s time for the President to make clear that repealing DOMA is a priority, and that his support is more than lip service. No one expects repeal to be immediate, but it won’t happen without Presidential leadership.
Then we can have good weeks, that are just plain old good weeks.
(If you want to push the process forward, don’t forget to sign our Dump DOMA petition.)
Pres. Obama and the White House are now looking at ways to include same-sex marriages, unions and partnerships in 2010 Census data – another small step of what we hope will be a larger agenda toward equal justice under the law for gays and lesbians in America. Last year, PFAW launched a petition drive urging the Census Bureau to reverse its policy of ‘editing’ the data from same-sex couples who accurately report that they are legally married, and re-classifying them as “unmarried partners.” From the Wall Street Journal:
The White House said Thursday it was seeking ways to include same-sex marriages, unions and partnerships in 2010 Census data, the second time in a week the administration has signaled a policy change of interest to the gay community.
The administration has directed the Census Bureau to determine changes needed in tabulation software to allow for same-sex marriage data to be released early in 2011 with other detailed demographic information from the decennial count. The bureau historically hasn't released same-sex marriage data.
The gay community strongly supported President Barack Obama during the 2008 election. But some gay activists say they have been frustrated by what they see as his slow approach to rolling back discriminatory policies.
White House spokesman Ben LaBolt said "the administration continues to make progress on the president's longstanding commitment to promoting equality for [lesbian, gay, bisexual and transgender] Americans."
This is a positive step forward although there’s no word on an actual policy proposal yet. In the meantime, People For the American Way is helping activists tell President Obama and Congressional leaders to “Dump DOMA.” You can find the petition here.
Today, President Obama’s Justice Department, in a motion to dismiss a lawsuit against the Defense of Marriage Act, argued that DOMA is constitutional. The Administration argues that DOMA “does not impinge upon rights that have been recognized as fundamental.”
I remember the thrill I felt when candidate Obama condemned DOMA and promised to eliminate it. He even put that promise on the White House website. But several weeks ago, in lieu of eliminating DOMA, he instead eliminated the promise from the website.
And today, he argues that DOMA does not discriminate against gays and lesbians (or, to use the Administration’s language, homosexuals):
“DOMA does not discriminate against homosexuals in the provision of federal benefits. … DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.” (motion to dismiss, page 30)
The Administration’s reasoning is as illogical as that used by segregationists to defend laws prohibiting interracial marriage. So it’s ironic that the brief was filed today, on the 42nd anniversary of the Loving v. Virginia decision striking down laws that would have barred President Obama’s own parents from marrying.
We need to remind President Obama of his promises. It’s long past time to Dump DOMA.
As if Ben and Jerry’s wasn’t enough reason to love Vermont, it looks like marriage equality legislation is moving forward in the state legislature:
A Vermont Senate committee voted to advance a bill that would legalize same-sex marriage in the state.
The senate Judiciary Committee voted 5-0 on Friday to advance a bill that was the topic of an emotional public hearing on Wednesday that drew hundreds to the Statehouse.
Governor Douglas has said he opposes the bill, but hasn’t said that he’d actually veto it if it got to his desk.
Of course, even if same-sex couples in Vermont can get married, they’re still prevented from receiving the federal protections that marriage affords their heterosexual friends. Just another reason why we should Dump DOMA.
GLAAD today published a new survey of Americans' feelings on GLBT issues. The news, I'd say, is generally positive.
Three-quarters of U.S. adults (75%) favor either marriage or domestic partnerships/civil unions for gay and lesbian couples. Only about two in 10 (22%) say gay and lesbian couples should have no legal recognition. (Gay and lesbian couples are able to marry in two states, and comprehensive civil union or domestic partnership laws exist in only five others and the District of Columbia.)
U.S. adults are now about evenly divided on whether they support allowing gay and lesbian couples to legally marry (47% favor to 49% oppose).
Almost two-thirds (64%) of U.S. adults favor allowing openly gay military personnel to serve in the armed forces. (The current “Don’t Ask, Don’t Tell” law bans military service by openly gay personnel.)
But it also called to mind a fascinating piece by Ann Friedman in The American Prospect.
This is something I've heard a lot in the wake of the passage of California's Proposition 8, which bans same-sex marriage. "History is on our side! Don't worry, the demographic trends are with us!"
I'm sorry, but that's just not good enough. These are the kind of conciliatory comments that go part and parcel with the culture-war frame. Civil-rights era activists knew history was on their side. But their goal was not to make every white American comfortable with the idea of sharing public spaces and power with people of color. It was to guarantee people of color those rights, regardless of where the culture stood. That's the thing about rights. You have to claim them.
If you're interested in claiming a few rights, you should sign onto People For's petition to stop federal discrimination against some married couples and Dump DOMA.