Saturday, June 13, 2009
Barack Obama ran for president on a very gay-friendly basis, appealing directly to us and making many promises. (The photo is of marchers in the 2008 West Hollywood Gay Pride parade waving Obama posters.) He stopped short of endorsing gay marriage, but said he supported civil unions and full federal rights for couples in those unions. He promised legislation to overturn Don't Ask Don't Tell (DADT) and the Defense of Marriage Act (DOMA). The latter is a Clinton-era law that says that US states that don't allow gays to marry would not have to recognize same-sex marriages performed in other states. It also applies at the federal level.
Since his inauguration the silence from President Obama on gay issues has been pretty deafening. No legislation has been proposed, and not a word from him even as same-sex marriage has spread from state to state. Well, the Administration has broken its silence now, and it's a fucking catastrophe.
Smelt v. United States is a federal lawsuit brought by two California men, Arthur Smelt and Christopher Hammer, who married during the pre-Prop. 8 window of opportunity. The suit was to obtain federal marriage benefits due to their legal marriage. The case was weak, but it was challenging a federal law, so the Obama Department of Justice filed a brief on June 11 calling for dismissal. Mind you, that's a brief supporting DOMA.
That in itself is nothing really bad. Faced with a suit challenging a law they didn't think much of, previous Administrations have mounted perfunctory defenses because, hey, until Congress changes it, it is the law. But there is nothing perfunctory about this brief. It is vicious, hateful, homophobic, full of lies, and reads like it could have been written by Antonin Scalia with input from Pat Robertson and Pope Benedict. It is an outright attack by the Obama Administration on the gay community that supported him. I have never felt so betrayed.
If you want to read all 54 pages, you can do so here. A rundown of some of the worst passages by lawyer John Aravosis is on this page at his AMERICAblog. Let's look at some of the highlights, shall we?
-- To support the principle of holding invalid a marriage performed elsewhere because it's not legal in your state, the brief gives examples of a man who married his niece -- allowed in Italy, invalid in Connecticut -- and a man who married a 16-year-old girl -- allowed in Indiana, invalid in New Jersey -- and therefore DOMA is constitutional. Great. The old gay = incest and pedophilia card.
-- The brief specifically distances DOMA from the miscegenation laws that were overturned by Loving v. Virginia, the 1967 Supreme Court ruling that made interracial couples legal throughout all 50 states. You know, like Obama's own parents.
-- It claims that DOMA denies benefits to no one, but merely restricts federal benefits to those who enter into "the traditional form of marriage." So if you're a gay man, all you have to do is marry a woman and you'll be fine.
-- DOMA isn't anti-gay, in fact it's "neutral." Traditional marriages are univerally recognized, so they get benefits. But since the states are divided on accepting gay marriages, it's "neutral" for the Feds to sit on their hands until a consensus emerges. One, so long as straight married couples get federal benefits and gay couples are denied them it's a farce to contend this is "neutrality," and, two, how long do you think we'll be waiting for that consensus?
-- DOMA is not at all motivated by any anti-gay sentiment or dislike. Right.
There is much, much more, and it's appalling. It puts an official Democratic, Presidential imprimatur on the most vile lies, slander, and legal schemes that have been used to persecute gays for centuries. After this, any attempt to counter homophobic bigotry can be met with, "Hey!! It's not just me. Your liberal President Obama thinks the same thing!" And since it is a legal brief issued by the DOJ, its arguments will be used as ammunition to counter every lawsuit on any level seeking to obtain basic rights and fairness for gay people. As I said, a catastrophe.
There is a very, very small chance that this is some kind of mistake. Andrew Sullivan discovered that one of the three DOJ attorneys who wrote the brief is a Bush holdover, and a Mormon to boot, so his influence may have shaped this thing. But that's not much better, because it would mean the DOJ filed it without running it by ONE gay attorney (like Arivosis, who lives in DC), or ONE gay rights organization (they were given no warning), or anyone who might have realized how awful this is. That would be an amazing error by an administration that has so far run like a well-oiled machine.
But if so, Obama and his people have a lot of damage to repair. Gay rights organizations that are usually pretty supine, like the Human Rights Campaign and the National Gay and Lesbian Task Force, have grown a spine for once and have issued a statement condemning this brief. Ignoring it and hoping it goes away won't work; it won't go away. We're not about to forget about it. Obama would have to disavow, on camera, at least the worst of the lies and slander in this brief, and do it within days. And he can't get away with saying he had no choice, despite what I wrote earlier. All three of his predecessors declined to defend in court certain federal laws that they considered unwise or unconstitutional. He could have done the same.
What a disappointment.