“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” [Attorney General Eric] Holder said in a statement.
“The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”
(Last fall, I was very critical of Obama's willingness to defend DOMA in the courts.)
ADDED: Watch me — last October — criticize Obama for fighting against gay rights in the courts:
Mmm. Well. At least I'm now able to confirm by inference that my pronunciation of Chick-fil-A is correct.
ADDED: To respond to some questions in the comments, I assumed, reading the sign, noting the capital A, and using common sense, that the name was pronounced "chick fill AY," that is,"chick fillet." But recently somebody laughed at me for saying it like that and insisted it was pronounced "chick FILL uh." I was embarrassed. When I came across the slogan that I've put in the post title, I thought it was a funny way to say I was right. Why does that slogan show I was right? Because it has meter and rhyme only if it's pronounced my way. As for the folks in the comments who thought it had something to do with fellatio — "fill-A-tio"....
An old mystery. The linked article is about a study that shows there's combined causality: Marriage tends to make men more upstanding citizens and more upstanding male citizens are more likely to find and commit to a mate.
Related mysteries: Should we incentivize marriage and pressure men into marriage in order to make society better for all of us? Must men marry women to get this social improvement or will gay marriage work too? Should women be enthusiastic about performing the function of improving men? Is the restriction of marriage to opposite-sex couples a way to enlist unwilling women in the social enterprise of improving men?
CORRECTION: I'd originally written "same-sex" in that last question.
This is the threshold standing question. Standing is a matter of federal constitutional law, but the 9th Circuit has apparently perceive an element of the issue to depend on state law, and it is seeking an authoritative interpretation of state law from the state's highest court.
It will be run by Richard Socarides, a former domestic policy adviser to President Bill Clinton who has been deeply critical of President Obama’s record on gay rights. A well-known gay journalist, Kerry Eleveld, the Washington correspondent for The Advocate, will leave that magazine in January to edit the new group’s Web site, equalitymatters.org, which is to go online Monday morning.
“Yesterday was a very important breakthrough,” Mr. Socarides said... “But we will celebrate this important victory for five minutes, and then we have to move on, because we are the last group of Americans who are discriminated against in federal law and there is a lot of work to do.”
Yes, there's the obvious issue of marriage, and one might want a federal statute forbidding employment discrimination. All right. Fine. But let's look a little farther into the future and think about the political repercussions. What would happen to the gay rights movement if the specific discrimination ended and ordinary legal equality were achieved?
Right now, gay people look to the Democratic Party (and to judges appointed by Democratic Presidents) to get these basic rights. The Democratic Party gets a political advantage by looking like a repository of hope. But would gay people continue to favor Democrats if the Democrats actually followed through and satisfied those hopes? There'd be some gratefulness, but — unless Republicans succumb to the temptation to say mean things — wouldn't gay people melt into the general population and, from that point on, vote based on what they thought about economic policies, national defense, environmental issues and so forth? Achieving equality would liberate gay people in may ways, but one of those ways would be that they could vote for Republicans if they agreed with them about issues other than gay rights issues.
The last couple of days, I've been preoccupied with the Prop 8 case, where the key question is: What is the government's interest in restricting marriage to opposite sex couples? The pro-Prop 8 side focused entirely — and oddly — on the fact that only opposite-sex couples make babies accidentally. If accidental babies are the problem, why express any negativity toward same-sex couples? They'll only get babies if they make a deliberate decision to have them.
But this study suggests another reason for the special treatment of opposite sex couples. Society extracts better behavior from men by encouraging them to pair up with women. Women are the tamers of men. Don't waste women on other women. The social order wants to maximize the use of women for the fixing of men. And if men pair with men, all hell will break loose. Double the chaos of men roaming solo. With synergy, even more than double.
I spent all day Monday watching the oral argument in the 9th Circuit, and much of yesterday, reading, talking, and writing about it. That would have been way more entertaining if the pro-Prop 8 lawyers had contended that there is a legitimate government interest in controlling men by yoking them to women.
The case is Perry v. Schwarzenegger. You can watch live on C-SPAN. I'll update with comments soon.
UPDATE: You can read some details about the case here. I'll have some of my own impressions in a little while.
UPDATE 2: You can watch the whole oral argument here. The first hour of the argument dealt with the threshold question of standing. California Governor Schwarzenegger and Attorney General Jerry Brown were the original defendants in the case, and they have opted not to appeal. Proponents of Prop 8 (which banned same-sex marriage) need a way to intervene using some other party with a personal stake in the outcome or the decision of the district judge, finding Prop 8 unconstitutional, will be the final word on the subject.
It seems as though there should be appellate review, but the constitutional limits on federal court jurisdiction don't depend on how important it is for an issue to be heard. There are technical requirements, and it seems as though the plaintiffs' lawyers did a clever job of setting things up so a district court decision in their favor would be insulated from appellate review. But listening to the oral argument, I got the impression the judges thought it was too clever.
In the second hour, the substantive question boiled down to whether there was a rational basis for excluding gay people from marriage. The pro-Prop 8 side rested heavily on the fact that only heterosexual couples produce babies accidentally. But that has so little to do with the value of excluding gay people from the status of marriage. It's hard even to understand why reserving marriage to heterosexuals would make them do a better job of deploying their reproductive powers. Why should gay people, who aren't even the problem, bear the burden?
Gay rights advocates are worrying about this. It doesn't seem to be on the agenda, but it should not go unnoticed that the Lieutenant Governor-elect Rebecca Kleefisch made one of the stupidest ever statements about same-sex marriage: "At what point are we going to OK marrying inanimate objects? Can I marry this table, or this, you know, clock?"
What kind of person, looking for a vivid image, would come up with the idea of marrying a clock?
THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.
See? Infuriating. He's the President. He took an oath to "preserve, protect and defend the Constitution of the United States" — "to the best of [his] ability." He won the Presidency in part because of his high achievement at Harvard Law School. He accepted responsibility for the U.S. military. His administration is fighting to defend DADT in courts. This issue didn't pop up yesterday, so his answer couldn't possibly be "just off the top of [his] head. He sure as hell better have an answer to the question. This preamble to his answer is therefore either a lie or an outrage.
I think that -- but here’s what I can say.
Thanks for revealing that you know you are withholding what you really think.
I think “don’t ask, don’t tell” is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act. In theory, we should be able to get 60 votes out of the Senate. The House has already passed it. And I’ve gotten the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to say that they think this policy needs to be overturned -- something that’s unprecedented.
That's his canned answer, which was also served up at the MTV townhall. It's completely nonresponsive to the question.
And so my hope and expectation is, is that we get this law passed. It is not just harmful to the brave men and women who are serving, and in some cases have been discharged unjustly, but it doesn’t serve our interests -- and I speak as Commander-in-Chief on that issue.
If you really believe it is that harmful and unjust, then how do you resist the conclusion, under the case law, that it is unconstitutional? Even at the level of minimal scrutiny, what is the rational basis for this law? You are saying — in so many words — that there is no rational basis, so why do you not conclude that it is unconstitutional? Are you lying when you intone your criticism of DADT, or are you lying when you purport to adhere to the sort of constitutional analysis that is done by the kind of people you nominate to be on the Supreme Court?
Are you trying to say you'd have joined Justice Scalia's dissent in Lawrence v. Texas? Here's Scalia: "What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change. It is indeed true that 'later generations can see that laws once thought necessary and proper in fact serve only to oppress,'; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best." Hello? That's what Obama is saying about Don't Ask, Don't Tell.
Back to the transcript:
Let me go to the larger issue, though, Joe, about disillusionment and disappointment.
Oh, yes! The larger issue is how people feel about Barack Obama. Constitutional rights just aren't that large compared to the grand question of Me. And apparently Joe doesn't have the nerve to stop the President and point out that there has been no answer to the question. The President has called him by name and wants to talk about his feelings.
I guess my attitude is that we have been as vocal, as supportive of the LGBT community as any President in history....
But no other President directly inspired the hopes of gay people and won big support with promises like you did. You're not even saying that you're better than all those other Presidents, only that none of them were any better. Your support for "the LGBT community" is as good as George Washington's. Thanks a lot.
On “don’t ask, don’t tell,” I have been as systematic and methodical in trying to move that agenda forward as I could be given my legal constraints, given that Congress had explicitly passed a law designed to tie my hands on the issue.
Admit it: You love having your hands tied like that. Because you're fighting against a legal decision that deemed DADT unconstitutional! The rope of legislation was untied, and here you are begging for other judges to tie you back up again. Don't ask me to believe you don't love the bondage.
And so, I’ll be honest with you, I don’t think that the disillusionment is justified.
I'll be honest with you... Speaking of Don't Ask, Don't Tell. That's a "tell." He's lying. "I’ll be honest with you" means I'm about to lie to you.
Now, I say that as somebody who appreciates that the LGBT community very legitimately feels these issues in very personal terms. So it’s not my place to counsel patience. One of my favorite pieces of literature is “Letter from Birmingham Jail,” and Dr. King had to battle people counseling patience and time. And he rightly said that time is neutral. And things don’t automatically get better unless people push to try to get things better.
Speaking of time, he's really trying to run the clock out on this interview. He's also, I imagine, ashamed of what he finds himself needing to say. He wants to identify with King, but he knows he's on the wrong side of King when he asks gay people to wait longer. Obama sounds like an old man rifling through his memories for something relevant to say. He calls “Letter from Birmingham Jail" "[o]ne of my favorite pieces of literature" — as if it's all about him and people who are waiting for their rights to be recognized are fascinated by what pleasure reading he enjoys. Under the circumstances of this conversation, “Letter from Birmingham Jail” is or should be nagging at his conscience. ("Now is the time to lift our national policy from the quicksand of ... injustice to the solid rock of human dignity.")
So I don’t begrudge the LGBT community pushing...
Begrudge! That he would even think of that word suggests these people are annoying him!
... but the flip side of it is that this notion somehow that this administration has been a source of disappointment to the LGBT community, as opposed to a stalwart ally of the LGBT community, I think is wrong.
The short answer to Sudbay's original answer was: Don't Ask.
Q So I have another gay question. (Laughter.)
THE PRESIDENT: It’s okay, man. (Laughter.)
I am resisting typing curse words here. Look at Sudbay abasing himself. Now these rights he must care about are reduced to jocose "gay questions." Something to laugh at. There indeed was a time, and it was not too long ago, that the idea of gay rights itself seemed funny to people. And Sudbay allows himself to get pushed back toward that place. The President treats the remark as if it were an apology. He says "It's okay, man." Man. See? He's a cool guy. He's taming Sudbay.
Q And this one is on the issue of marriage. Since you’ve become President, a lot has changed. More states have passed marriage equality laws. This summer a federal judge declared DOMA unconstitutional in two different cases. A judge in San Francisco declared Prop 8 was unconstitutional. And I know during the campaign you often said you thought marriage was the union between a man and a woman, and there -- like I said, when you look at public opinion polling, it’s heading in the right direction. We’ve actually got Republicans like Ted Olson and even Ken Mehlman on our side now. So I just really want to know what is your position on same-sex marriage?
Another good question. Sudbay came prepared. Let's see if he lets Obama push him back again.
THE PRESIDENT: Joe, I do not intend to make big news sitting here with the five of you, as wonderful as you guys are. (Laughter.) But I’ll say this --
Q I just want to say, I would be remiss if I didn’t ask you this question.
THE PRESIDENT: Of course.
Q People in our community are really desperate to know.
Oh, don't beg, Joe. Don't apologize.
THE PRESIDENT: I think it’s a fair question to ask.
That's big of him.
I think that -- I am a strong supporter of civil unions. As you say, I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage.
Check out those weird plurals: understandings of the traditional definitions. That's another tell. He is lying, I presume. His opposition to same-sex marriage is, quite simply and obviously, politically expedient. It is impossible for me to believe that Obama, coming from his academic background, is hung-up on the traditional definition — or "definitions" — of marriage. He's posing as a seeker of truth, slowly coming round.
But I also think you’re right that attitudes evolve, including mine.
Attitudes? I thought he was into traditional definitions.
And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents.
So is he saying that previously he had an attitude that was antagonistic to gay people and by extensive social contact with gay people, he came around to perceiving them as fully human? I just don't believe that. And if I did, I would think less of him.
And I care about them deeply.
You know, your position on the rights of others should not depend on whether they are your friends. That's not the way law works. People have rights whether you care about them or not. And rights don't spring into existence because you care about the people who want them.
And so while I’m not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it’s fair to say that it’s something that I think a lot about. That’s probably the best you’ll do out of me today. (Laughter.)
Laughter. Oh, it's so lovely sitting with the President in the Roosevelt Room. Something that I think a lot about. Men have thought more clearly in jail.
Later, the conversation comes back to DADT, and the President intimates that he will try to push its repeal during the lame duck session of Congress. He makes an effort to shift the blame to the Republicans, especially John McCain, and he indicates that it will be a problem getting the votes for cloture. (He loves that problem, I'll bet. It's so helpful to appear to want to act and have your hands tied.)
He wonders why the Log Cabin Republican are pursuing their court case, when they could instead try to get a few Republican Senators to vote for repeal. He says he doesn't "understand the logic of" using the courts when you could go to Congress, but of course he does. People conceive of their equality in terms of their individual rights — which don't depend on the support of political majorities and supermajorities. As a Harvard-trained lawyer and sometime law professor, he knows that. He knows why people go to courts. I don't buy his understanding of the logic. Or should I say his understandings of the logics?
"It happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law," said former George W. Bush administration solicitor general Ted Olson, who is leading the legal challenge of California's ban on same-sex marriage. Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend the law in court.
"I don't know what is going through the [Obama] administration's thought process on 'don't ask, don't tell'...."
He doesn't know, but I bet he has some ideas. He's too dignified to tell. But I think we know.
I can only imagine the impression this makes on a young, gay person who actually is suicidal. I'm old, heterosexual, and an immense fan of staying alive. But I can't see why would it would help to hear this dreary, robotic intonation of conventional advice from a representative of an administration that is fighting, in courts, against the rights of gay people to serve in the military and to marry.
ADDED: "Tomorrow will be better"... that's the message. I note the red dress. Why not:
AND: I think that song really makes you want to stay alive. Look:
There's so much room for personal taste. To each his own. For love partners and for things that stimulate the will to live.
Paladino, who staunchly opposes gay nuptials, accused Cuomo of being a hypocrite for touting his support for same-sex weddings now - but being "all but invisible" when the issue was before the Legislature last year.
"He was asked by those pushing for the measure to call three wavering senators," the Paladino campaign said in the first of what it promises will be daily "Cuomo Land" attacks.
Political pros were puzzled that Paladino would attack Cuomo on gays, given that the Tea Party darling's campaign unraveled this week after he delivered an anti-gay diatribe.
Veteran Democratic operative Hank Sheinkopf called it a "bad choice of a first issue" for the "Cuomo Land" attacks.
Well, look at the illustration. The whole "Cuomo Land" idea seems to be some crazy fantasy about luring children into homosexuality.
The appeal comes at a tough time for Obama, who has been trying to shore up his liberal base ahead of the contentious congressional elections when his fellow Democrats are expected to lose many seats to Republicans. Democrats could lose control of the House of Representatives.
A key concern has been whether those who have supported Obama in the past will show up to vote in the November 2 midterm elections. He has opposed same-sex marriages but supported civil unions and extended some benefits to gay partners of federal employees.
To be fair, in his 2008 campaign, Obama said he was opposed to same-sex marriage. But, of course, people who wanted to believe he embodied the hope that they wanted to hope believed that he really, secretly, supported same-sex marriage. And he opposed DOMA:
As your President, I will use the bully pulpit to urge states to treat same-sex couples with full equality in their family and adoption laws. I personally believe that civil unions represent the best way to secure that equal treatment. But I also believe that the federal government should not stand in the way of states that want to decide on their own how best to pursue equality for gay and lesbian couples — whether that means a domestic partnership, a civil union, or a civil marriage. Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. Senate
If you brightened at that February 2008 statement, did you perceive that if a court said the same thing — that DOMA is antithetical to federalism principles and to equality — that Obama would fight against that court decision? Obama only supports Congress repealing DOMA — did you notice that at the time? — and if Congress — the new Democratic Congress — applies its first burst of power in 2009 to other matters... well, too bad. Vote for them again in 2010 and maybe they'll do something for you some day. The arc of history is long!
But heaven forbid that the courts rouse themselves to the point where they strike down the statute. Did Obama ever give you the impression that he believed that courts should be in the forefront, protecting the rights of the oppressed and downtrodden — that courts ought to have "the empathy to recognize what it's like to be ... gay"? Did you take that empathy remark the wrong way? To say a judge should "recognize what it's like" is not to say the judge should perceive that you have rights and actually enforce them. You silly voter!
Because if Barack Obama follows through with even half of the promises he made to the LGBT community during his campaign, he'll have done more to advance gay rights in this country than any President before him – combined.
How can he rake in votes just by seeming to care about the rights and interests of gay people? Not even seeming all that much — he's against same-sex marriage! — but just by stirring hopeful feelings and looking like somebody who cares. Well, he's already done it once. Why shouldn't he believe that what worked once will work again?
That was written in May 2009 — Springtime for Obama — and now it's Fall 2010. Things aren't so warm and sunny anymore, and now is when he needs to maximize the votes. Most Americans oppose gay marriage, and he can't alienate them, so won't you gay people (and you people who support them) continue to do what you're supposed to do and vote for those Democratic candidates? You know the Republicans won't help you. That's the grubby argument.
I will never compromise on my commitment to equal rights for all LGBT Americans. But neither will I close my ears to the voices of those who still need to be convinced. That is the work we must do to move forward together. It is difficult. It is challenging. And it is necessary. Join with me, and I will provide that leadership. Together, we will achieve real equality for all Americans, gay and straight alike.
That's what Talking Points Memo says. I'm trying to understand the theory by which it's racially insensitive. The only thing close, in my view, and I know it's not TPM's, is that the remark contains the unwitting assumption that gay people are white. TMP notes Coulter's explanation:
It was part of a larger argument on which she later elaborated, telling the crowd that the 14th Amendment only applies to African-Americans and that it does not, in fact, apply to women, LGBT people or other minorities.
Can I get a quote? I don't trust this paraphrasing. She said the 14th Amendment only applies to black people? Or did she say that the 14th Amendment should be understood with some reference to its historical context of insuring rights for the freed slaves? It's not the same thing, TPM.
"... that preclude opportunities for self-definition and coerce men into stifling identities. The Equal Protection Clause should not... presumptively tolerate such burdens on a man’s right of self-definition."
Lawprof John M. Kang argues that the law of gender discrimination should not protect men merely as "collateral beneficiaries of the protection afforded women, but in their own right." The article is called "The Burdens of Manliness."
Kang denies that he's a throwback to the "the sensitive troglodyte yearnings of the 1980s Men’s Movement," and I hear echoes of criticisms he must have received on drafts of this article. I was already a law professor back then, and my school (Wisconsin) was a hotbed of feminism theory. My own orientation at that the time — and now — was to see gender roles as limiting freedom for everyone. I remember suggesting to one of the most prominent feminist lawprofs that I thought feminism would be better if it expanded more generally into concern about the burdens of gender roles, which men felt too, in interestingly different ways. Individual freedom for all could be the overarching goal.
The response was not, as I'd naively anticipated at the time, that I had a great idea or that it was at least an intriguing proposal that we could casually converse about for a minute or 2. No, not at all. I mean, I'm still alive. But there was pushback. Swift, sharp snapback. Men get nothing from feminism. They must give ground. Much ground. For all that they have taken from us, for all the crushing and raping. Never give them the hint of a glimmer of hope that there is anything more that they can get. This is for us.
But —I tried to defend my humble, untenured self — wouldn't more freedom for everyone be better? No! My elder laid down what was, she assured me, the lesson of long political experience: If men think there's anything in it for them, they will use their superior power to take more and more, and the subordination of women will worsen. We must all follow the same strategy: to demand that men give up power and wealth for the benefit of women.
As for the Men's Movement... remember "Iron John: A Book About Men"? Remember thinking it was important to hate Robert Bly?
And what are the burdens of manliness? Ironically — ironjohnically — men are made to feel unmanly for developing their set of grievances and whining and moaning about the unfairness of it. But please don't let that stop you from expressing yourself in the comments.
ADDED: By the way, during the same period, you'd get similar sharp pushback from lefties if you said you thought gay people had the right to marry each other. That was viewed as a conservative position that would undermine the feminist critique of marriage as patriarchy. I also got an instant, angry response from a lefty feminist law professor when I said that the cause of gay rights might be advanced by scientific findings that homosexuality may have a biological cause. Back then, you see, homosexuality was supposed to be a choice, and scientists were condemned even for researching the matter. Today, of course, lefty lawprofs will get mad at you if you don't endorse gay marriage and the biological origin of homosexuality. Oh, how I wish I'd had a blog circa 1990! And I hope this post gives you a glimpse of why there is so much emotional energy behind my blogging.
This one's called "The Luckiest Diavlog on the Face of the Earth" for reasons that become apparent near then end. Also, somewhere in there the tornado sirens (in my town) go off.
ADDED: If you need a non-Flash format, go here and pick MP3/MP4.
