I have not spent a whole lot of time lately on gay issues. There’s the sadness and anxiety in Japan, there’s more than a dozen charity appeals for money on my desk, from an orphanage in Nepal to Médecins Sans Frontières to you name the worthy cause. There’s American democracy on the ropes, the ethical dilemma over how America’s support for tyrants fits into the big picture of the unfolding Arab awakening – and so much other consequential stuff to get into. And I’ve said nothing about the joy of rediscovering old friends. Or about my aching feet and whether I’m going to be able to walk all over Stockholm and Copenhagen come June.
Now that the majority of Americans polled say they are in favor of same-sex marriage, why not just relax, turn to bigger issues, and enjoy the fruits of a new post-gay world.
OK. Just had to give voice to that little man in my head who thinks like that. Now on with the issue.
Something happened today that settled over me like a warm blanket. A cozy feeling that things were going to be all right. The news that the law firm of King & Spaulding has decided to withdraw its support for John Boehner’s efforts to keep the Defense of Marriage Act in place.
It sounds so trivial and obscure. The kind of news most people reading the morning paper will skip right over. If it’s even there. But it’s a positive step forward, in my view, in getting this country out of the grip of the religious nuts whose childish fear of sex keeps their homophobia alive.
DOMA, the so-called “Defense of Marriage Act” was signed into law by Bill Clinton in 1996. It established that marriage in America must be defined as something only a man and a woman can engage in. It has a meanness to it. It also says that if you are in a same-sex marriage performed elsewhere, that marriage will not be recognized in this country. And now, with same-sex marriage legal in five states as well as the District of Columbia, it stipulates those marriages do not have to be recognized by the other states or by the federal government.
It is a law that flies in the face of the Full Faith and Credit Clause of the Constitution, without which the country would collapse. That’s the bit that says if you adopt a child in Maine, that little one is still yours if you move to Illinois, and if you get a driver’s license in Texas you can drive legally in Wisconsin if you are just passing through. It’s a mean law with no purpose other than to pump blood into the brain-dead idea that gay people have no right to live as gays in America. Giving gays in America the right they have in a dozen or more other countries and jurisdictions neither picks anyone’s pocket nor breaks anyone’s leg, as Thomas Jefferson might say. Nobody gains from DOMA, and only gays lose.
DOMA was conceived in malice and has been kept in place for fifteen years already through apathy and cowardice, and many gays are itching to get it into court, so it can be declared unconstitutional once and for all. That puts them in bed, ironically, with Boehner. Each side is convinced the courts will rule in their favor. It’s worth remembering that some states in this country once performed interracial marriage and other states had the right not to recognize them. Until 1967, when the Supreme Court struck that law down as unconstitutional. We should remember also that Oklahoma once refused to recognize adoptions approved in other states, and that a federal court found their refusal illegal in 2007. Given these precedents, say advocates of a court fight, things look good for overturning DOMA on Full Faith and Credit grounds.
With Republicans and gay optimists (mostly young, I suspect) working hand in hand here, gay people in the latter half of their lives (again, I'm just guessing about the age range), if I’m at all typical, might well advise caution. One must never underestimate the power of the fear of sex, they/we say, especially when it is combined with fear of “the other,” all the progress in the fight for gay rights notwithstanding. Since things are apparently moving steadily toward full civil rights for gays, this mindset goes, we should avoid confrontations and let homophobia die a natural death. Remember that argument? And its counter-argument - about justice delayed being justice denied?
If you were wondering why gay people vote democratic so overwhelmingly, consider this. When Proposition 8, which removed the right of gays to marry in California, was challenged in court, Jerry Brown, the state’s Attorney General at the time, refused to defend it. Opponents of same-sex marriage cried foul, and insisted this democratic government official wasn’t doing his job. Jerry Brown responded it wasn’t his job to defend unconstitutional laws, and the case is still working its way through the court system.
Now comes a parallel issue on the federal level. Attorney General Eric Holder, also a democrat, is taking a similar position: it’s not the job of the Justice Department to defend laws it believes are unconstitutional.
But how can he make that claim, say the republicans, if it hasn’t been found unconstitutional by a federal court, whose job it is to determine constitutionality. Determining constitutionality is for courts to decide, not individuals.
Ah, but the federal court DID declare DOMA unconstitutional in July of last year. What this is about is the appeal. Holder does not want to use federal funds to defend DOMA when the federal court has thrown it out. It’s not worth defending he says, using his power of judgment as Attorney General. And once again, republicans want to take the case to the Supreme Court, where there is a solid chance the arch conservatives there will throw out the federal court’s decision and set DOMA in stone, at least for a generation or two. So Boehner hired this $900 dollar an hour lawyer, Paul Clement from the firm of King & Spaulding (who, out of the kindness of his heart, I understand, has lowered his fee to $500 an hour, since it’s coming out of the taxpayer’s coffers) to defend the law in Holder’s place.
And that brings us up to where I started – with the news that King & Spaulding has decided it didn’t want this case any more than the Justice Department did. Clement has left the firm, arguing everybody deserves his day in court, and it's his duty to stick with what he started. It's up in the air as of this writing whether he’s going to take the case with him to another law firm, one without the King & Spaulding's scruples about defending discriminatory legislation.
So what about that question, why not fight the case in court? Much as I loathe the folks currently running the Republican Party, don’t they have a point? Doesn’t everybody deserve their day in court? Aren’t they right when they say if everybody in the executive branch of government decided cases a priori, wouldn’t that disturb the balance of powers? Should this not stay in court all the way to the top if necessary? That's Clement's argument, and that's why he resigned when his firm refused to pursue the case
Well, no.
First off, it’s people who deserve their day in court, not ideas. If by some cruel accident we elected a fascist to office (a few years ago that would have seemed a lot more ridiculous), and once elected he announced he wanted to make all the Jews in town wear a yellow star, and a class action suit grew out of this and he went to court over it, I’d say, yes, by all means, give bozo his day in court.
But what of the policy itself of making Jews wear gold stars? When the case got thrown out, as it no doubt would nowadays, would taxpayers have to pay for bozo to take the case to a higher court? And would we force the attorney general to defend it? Or could he just say, “This is bullshit. I’m outta here,” and let the lower court ruling stand.
Or suppose a David Duke type got elected and wanted to put people back at the back of the bus. Again, I’d defend his right to advocate the position, but I’d also expect my fellow Americans to speak up loud and clear and tell him how out of line it is. If he managed to get some county or state to put that policy in effect, would you seriously want the Attorney General of that state to defend it once a federal court had found it unconstitutional?
I hear the grumbling in the bleachers now. Who the hell are you gays to compare yourself to the blacks and the Jews? Your sufferings are trivial in comparison. Have you no shame?
No, actually, I don’t. I don’t think we line up the holocaust, slavery and segregation, weigh them against bride burning in India, female circumcision in Africa, ethnic cleansing anywhere – or the struggle of gays to get free of religious oppression, take the worst case and dismiss all the rest. I think we’ve come as far as we have because non-Jews have learned to see the evil in anti-semitism, white males have come to understand the abuse of women and people of color in this country, and everybody is slowly but surely coming to see the injustices inflicted on gay men and women in the name of religion. There was a time when the bishops and the teary-eyed evangelists commanded silence, and we obeyed. But today we're helping each other understand "it gets better," and refusing to do their dirty work for them in the courts. There is progress.
It’s an ironic situation. On a practical level, the young gay optimists may be right and the Republicans may be shooting themselves in the foot pushing this into court. After all, when Anita Bryant tried to keep gay people from teaching by whipping up the notion gays were all child molesters at heart back in the 70s, the stench of that lie got aired and gay rights took a giant step forward. It’s entirely possible that Boehner’s lie might get a similar airing, and we might get to the sunshine a whole lot faster than by calming everybody down and waiting for greater numbers of Americans to come around. I wish I could read all the signals here, but I don’t have enough information.
The whole story is more complex than I've just described it because there are two mutually exclusive arguments going simultaneously - one that DOMA should not be defended because it's wrong, and one that it should not be a high priority, regardless of the constitutionality issue, given how much trouble the country's in at the moment.
But practical and legal questions aside, symbolically to have the prestigious law firm of King & Spaulding come down on the side that both Clinton and Obama are on, as well as California's former Attorney General and current Governor, both state senators, the California Supreme Court and no end of other legal minds, is very good news indeed. Hats off (such a lovely silly old expression, that) to Jerry Brown for having a bullshit detector in working order. Ditto for Eric Holder and his detector. And hats off and a deep bow at the waist to King & Spaulding.
The cynic in me says they’re a big money law firm just being practical and they know which way the wind is blowing.
But hats off all the same.
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