Queer Talk: Obama on DOMA – Evolving Fierce Advocacy?

I’ll start by answering my own question. No, I don’t think President Obama’s actions in the White House have shown him to be the “fierce advocate” for LGBT rights he claimed to be. That really wasn’t a surprise, given what sounded to me, in primary days, like quite moderate, “pragmatic” polcies in general, not just regarding LGBT equality.

About the “evolving” part on the Defense of Marriage Act – Obama recently told Kerry Eleveld that his “attitudes are evolving on this,” on marriage for lesbian couples and gay couples, that he’s “wrestling with” the issue. His statements about his view of marriage of lesbian couples and gay couples have certainly changed, from support for marriage equality to support for civil unions.

To me, the direction of that change sounds more devolutionary the evolutionary. And exhibits a distinct lack of fierceness. Still, in the interview with Eleveld, the implication seems to be that he’s re-re-rethinking. So maybe that’s a move toward fierceness. Certainly it’s something to be encouraged.

But then, very shortly after that interview, along comes another DOJ defense of DOMA. The concerns with possible court decisions helped push movement on DADT repeal. In the case of DOMA, the judicial concerns include several decision in support of marriage equality, as various cases move through the system, no doubt with one or more eventually getting to the Supreme Court, where Justice Kennedy will likely provide the deciding vote. But unlike DADT, DOMA would not have a Democratic majority in the House, though I’m not at all certain the House minority, the Senate majority, nor the White House, would favor repeal of DOMA, or more accurately, are willing to risk what they’d see as the potential political costs.

The Department of Justice announced last October that they would appeal the July 2010 rulings against DOMA. It wasn’t a surprise, as Chris Geidner reported , when on January 13 of this year the DOJ filed in the U.S. Court of Appeals a “single filing for both Gill v. Office of Personnel Management and Massachusetts v. United States. This past July, U.S. District Court Judge Joseph Tauro ruled that Section Three of DOMA — which sets a federal definition for ‘marriage’ and ‘spouse’ — is unconstitutional.”

Geidner summarizes the DOJ arguments for the continued validity of DOMA:

1. Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2. Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3. Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

As observed by Geidner and others, the arguments seem to come down to: DOMA makes sense because the states haven’t “reached a uniform decision,” and so must preserve the “status quo” until a consensus (no doubt we can expect that any decade now) is reached. However, as Nancy Goldstein argues :

“… DOMA interrupted the status quo by inserting a first-ever federal definition of marriage in federal law. Prior to its passage in 1996, Congress has never ever interfered with the states when it came to how they wanted to treat marriage: who was eligible for it, how old they had to be, the couple’s racial makeup-nada. All up to the states. But 1996 rolls around, Hawaii looks like it’s dangerously close to legalizing same-sex marriage and boom, all of a sudden Congress gets very interested in defining who can get married and how and when-and insists that their definition apply to all the states regardless of the wishes of the states themselves.”

Now, it’s possible to point to some changes from the DOJ’s defense this time around, and the earlier one on June 11, 2009. Then the defense of DOMA in Smelt v. United States explicitly referred to a “traditional” definition of marriage. “Most strikingly,” Geidner writes , “the Smelt brief declared, ‘DOMA does not discriminate against homosexuals in the provision of federal benefits.’” There is that same argument that states haven’t reached a “uniform decision” regarding “same-sex” marriage. The changes – no references to “traditional” marriage definitions, for example — “presumably reflect a greater understanding at Justice of the president’s policy views on this issue,” as Geidner posits.

“In a way,” Geidner writes, that change can be seen as a “step forward.” He calls it a “kinder, gentler” approach. But as he also notes, Obama and the DOJ are still defending the law, and thus its constitutionality. And while Obama has stated he thinks DOMA is “discriminatory,” just as with DADT, he will not say it is “unconstitutional,” not even when directly asked, as Eleveld and Joe Sudbay have.

That’s a very significant point, and directly related to the actions of our “evolving” and “fierce” WH advocate. It’s clear that many are wondering about the meaning of this different but still supportive of DOMA’s constitutionality defense by the DOJ. For a few examples:

Equality Matters Richard Socarides : “There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens. And that is unacceptable.”

At firedoglake, David Dayen http://news.firedoglake.com/2011/01/14/justice-department-continues-to-defend-doma/ : “The President has waffled on his personal support for gay marriage, and Vice President Biden said a couple weeks ago that marriage equality was ‘inevitable’ as attitudes change. But for the time being, the Justice Department is sticking with their defense of DOMA.”

Bilerico’s Alex Blaze, via Huffington : “It’s progress of a sort that Justice’s defense of DOMA has gotten so anemic.”

Ari Ezra Waldman, at Towleroad : “when I read this brief, I was overcome by a sense of half-heartedness.”

Joe Sudbay, GayAmericaBlog goes directly to the question regarding Obama’s “evolving”: “As John (Aravosis) reported last night, the Obama administration is still defending DOMA in the courts. The President and his Department of Justice don’t have to do it, but they are. And, that’s just wrong. I don’t think this counts as ‘evolving.’”

Eleveld sums things up:

“There is a serious flaw in the president’s position of viewing civil unions as a path to giving same-sex couples equal relationship recognition: The federal government does not recognize civil unions for the purposes of spousal benefits. In fact, no legislation to formalize civil unions exists at the federal level. …

Meanwhile, his administration continues to defend a law that expressly prohibits the federal government from honoring same-sex marriages, which are legal in five states ( Iowa, New Hampshire, Connecticut, Vermont, Massachusetts) and the District of Columbia.”

There is a relationship between DADT and DOMA, and not only in terms of how the DOJ approaches them. According to Equality Matters , “most countries to legalize same-sex marriage first allowed gays soldiers to serve openly. Of the nine countries that allow same-sex marriage and have a standing military, eight of them first allowed gays and lesbians to serve openly in their militaries. … According to Lambda Legal … the following ten countries passed laws allowing same sex couples to marry: 2000 – The Netherlands, 2003 – Belgium, 2005 – Canada, Spain, 2006 -South Africa, 2009 – Norway, Sweden, 2010 – Argentina, Iceland, Portugal ….”

In the Eleveld interview, Obama reveals he sees the connection between DADT and DOMA: “This is going to be an issue that is not unique to the military. This is an issue that extends to all of our society, and I think we’re all going to have to have a conversation about it.”

Descriptive words like “improvement” in “tone”; “anemic”; and “half-heartedness” don’t indicate a “robust” conversation or “fierce” advocacy. That some kind of “evolving” is occurring can be seen in the DOJ’s elimination of “traditional” definitions of marriage language, and in Obama’s explicitly stating he’s “wrestling” with the question, and talks about “robust” conversation.

Civil rights are gained in increments. Sure, there are the big, dramatic moments. But momentous moments have foundations on the multiple efforts by multiple people over decades of work. Those incremental steps not only result in at least some expansion of rights, but serve as symbols, as indicators, as progress. I suppose this step by step process could be described as an indication of the “evolving” nature of how civil rights are perceived nationally, and in the White House. But when politicians and Electeds are involved, I tend to think in terms of political expediency, not thoughtful evolving. The real changes will occur, as they always do, because of the hard and consistent efforts of people who keep just keep on working, whatever the conversation in DC.

Share