Same-Sex Marriage Referenda

I started thinking a bit more about the votes in Maine and Washington on Tuesday, and in California last year.  The founding fathers never envisioned or wanted the rights of a class of people put up to a popular vote.

There will always be classes of people who are less popular than others.  Do we really want the rights of those groups to be decided by a majority vote?  I submit that we do not.  It’s tyranny of the majority.  The founding fathers were quite concerned about this possibility.  It looks like their concerns were well founded.

We have equal protection under the law in this country for a reason.  These referenda are simply about a majority keeping a minority from enjoying the same rights and protections that the majority has.

We’ve seen the same thing over and over in our history.  We’re seeing it again now.  Some groups were denied their civil rights and had to fight the status quo to gain them.  Gays are fighting an identical battle right now.  The majority should not have the right to keep a specific group down.  We’re supposed to be better than that in this country.  But we’ve forgotten the 1960s, it seems, only 40 or so years later.

I just came across an Andrew Sullivan post about popular sovereignty and what a crock it is as applied to rights.  Either everyone is created equally and we live up to that standard, or they’re not, and Orwell was right in thinking that some animals are more equal than others.

Just last week I finished teaching the Lincoln-Douglas debates, and when I read the Rod Dreher post you linked to, I immediately thought of Stephen Douglas’s arguments for “popular  sovereignty” — the notion that states, especially former territories entering the Union,  could vote slavery “up” or “down” as they saw fit.

Lincoln saw what a fatuous argument “popular sovereignty” was — that it really is the destruction of self-government to allow fundamental rights to be determined by the whims of a majority. The Declaration precedes the Constitution. “All men are created equal” is the necessary preface to “We the People.”

Equal rights and the consent of the governed are the principles that make self-government intelligible in the first place. Without them, of course, there are no real limits to what majorities can enact, including doing away with democratic rule. This is why Lincoln repeatedly said that lurking in Douglas’s doctrine of popular sovereignty were the same arguments used to justify the divine right of kings. Once “all men are created equal” is dispensed with, once it is no longer held to apply to a certain group of people, what might limit the arbitrary rule of a few, or one, over other groups without their consent?

I understand, of course, the “legitimacy” victories in the democratic process confer on any movement. But for me, the legitimacy of the love and relationships of gay couples already is there. It’s a right, grounded in our basic equality. And no majority should be able to take that away. So there’s a real ambivalence here.

Here’s one of my favorite Lincoln quotes, from an 1855 letter to Joshua Speed:

“I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor or degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it “all men are created equal, except negroes.” When the Know-Nothings get control, it will read ‘all men are created equal, except negroes, and foreigners, and Catholics.’ When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty — to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.”

Insert “gay” for “negroes” in the above and my point is made. His logic resonates still.

No historical analogies are perfect, of course. But this is a great irony, no? The Party of Lincoln is now aping the discredited arguments of Stephen Douglas (and for that matter, John C. Calhoun).

One other thought.  I am disgusted by the DNC and President Obama.  Their indifference to our rights is appalling.  Well, Mr. President, we’re ever so sorry to bother you with our humanity and our need for equal rights.  My boycott of giving Obama and/or the DNC any of my money is intact, so long as DADT and DOMA are still the laws of the land, and as long as they don’t begin to stand up for our civil rights as much as we stood up for their elections last fall.  I’m not asking them to win our rights for us, just to deliver on the promises they made.  And, by the way, I’d like the gay rights groups — like HRC — to hold the president to his promises and to stop being taken in by cocktail and dinner parties.

Updated: Yesterday’s Elections

It was Election Day yesterday.  People went to the polls to elect governors in New Jersey and Virginia, and members of Congress in New York and California.  Voters in Maine also decided a ballot measure on same-sex marriage.

I mostly want to talk about the referendum in Maine, but first a word or two about the votes in New Jersey and Virginia.  I disagree with the notion that these votes were somehow a report card on President Obama’s performance.  That, of course, isn’t to say that no lessons should be drawn from this election, just that the media are making mountains out of mole hills (or at least small hills), as they are wont to do. 

Let’s take Virginia:  Virginia voters have, for the past five gubernatorial elections, elected the opposite of the party controlling the White House.  If a Democrat won the White House, the Virginia Governor’s Mansion always went to a Republican, and vice-versa.  And that isn’t even mentioning the absolutely dismal campaign that Creigh Deeds ran.  In New Jersey, voters rejected the status quo and the corruption under Jon Corzine.

Now to Maine.  Same-sex marriage was repealed in Maine by a vote of 53 to 47 percent.  That margin is nearly the same as the margin on Proposition 8 in California last year.  A same-sex marriage law had been passed by the legislature and signed by the governor earlier this year.  The law had been suspended pending the outcome of the election.  This means, of course, that supporters of same-sex marriage have never won at the ballot box.

I think it shows that voters are still too easily swayed by what amounts to propaganda about same-sex marriage and that people are still caught up in traditional definitions of what makes a marriage.  People still can’t seem to separate religious and civil marriage, which are two distinct and separate things.  Until people see that distinction — which is blurry to many — we’re going to have these defeats at the ballot box.  I’m heartened, though, that same-sex marriage continues to win in court.  I think that the real victory will come in the legal system, just as the anti-miscegenation laws were struck down by Loving v. Virginia.

Just as I was disgusted by the proponents of Yes on 8 (the no same-sex marriage crowd), I am similarly disgusted by the absolute disregard for people’s families that is being shown by the Yes on 1 campaign in Maine.  Take a look at some comments from Matt Barber.  They’re not pretty, but they show exactly what the anti-gay referenda are really about — homophobia, pure and simple (Hat Tip:  Pam’s House Blend – emphasis in Pam’s post).

Matt Barber, Director of Cultural Affairs with both Liberty Counsel and Liberty Alliance Action, issued the following statement on news that the voters of Maine have rejected counterfeit “same-sex marriage” by 53% – 47%:”There’s good news and bad news here,” said Barber. “The good news is that even in one of the most liberal States in the Union, Maine, the people have once again rejected the ridiculous and oxymoronic notion of ’same sex marriage.’ The momentum has again shifted – hopefully for good this time – in favor of protecting legitimate marriage. A counterfeit is a counterfeit. An orange is an orange no matter how much you want it to be a turnip. This isn’t about ‘marriage.’ It’s about hurting and broken people desperately seeking affirmation of an objectively deviant lifestyle. One that, even in their heart of hearts, they know to be a dead end. As for the militant ‘No on 1′ homosexual activists? I’m reminded of spoiled children dressing up and playing house, refusing to come in when mom calls for dinner.

“Here’s the bad news. The margin of victory could have been greater. Many behind the ‘Yes on 1′ campaign, rather than simply telling the truth, chose the Neville Chamberlain approach. They merely circled the wagons around the word ‘marriage,’ even suggesting that ‘domestic partnerships’ (‘gay marriages’ by another name) are acceptable. This makes no sense. If that’s a viable compromise, then why not simply allow ‘gay’ duos the word ‘marriage’? It’s an incongruity that demands an explanation. This is an historic battle for the minds and souls of our children – for our very culture. The mealy-mouthed approach must end. This is not just about ‘marriage.’ It has everything to do with forced affirmation of homosexuality – under penalty of law. Indeed everyone who fought hard to defend marriage in Maine is to be congratulated, but if it weren’t for a brave group of truth tellers – Paul Madore, Peter LaBarbera and Brian Camenker – who came to Maine in the final hour to hold a press conference and address the pink elephant in the room – homosexual deviancy and the radical ‘gay’ agenda – counterfeit marriage might have prevailed.”

I don’t know how else his comments can be construed.  They’re simply homophobic and show what the anti-gay referenda are really about.  It seems to me that they’re about hate.  They hate gays and any perceived (even if it’s not true) invasion of the little boxes into which they want to put people.  As Pam notes in her post:

The fact is that it was, yet again, not yet time to test equality when put to a popular vote. It is proof, yet again, that civil rights should never be decided by mob rule — but the hateful people behind Yes on 1 capitalize on spreading fear — suckling pigs at the teat of dying, mud-covered sow of homophobia.  The hog is going to die.  Hate alone cannot sustain that beast.

We should find solace in the fact that the children and grandchildren of those who voted to rollback the rights of fellow Mainers will be embarrassed that their relatives were so short-sighted, duped by entities that exist solely to discriminate using the ballot box as a weapon — and making money off of the hate with great gusto.

Pam’s right.  People are going to look back in a few decades and wonder what all the fuss was about.  They’re going to look askance at their grandparents and wonder why they were so bigoted.  It’s going to be the same thing as what happened with inter-racial marriage a few decades ago.  Most of us wonder what the fuss was about.

So this is a major disappointment.  But we’ll get over it, learn from it, and keep advancing the cause of equal rights for LGBT people in America.  I still think the major victory is going to come in the courts, maybe even the Olson/Boies case now pending in federal court.  But whichever way it happens, it will happen.  It’s as inevitable now as it was when Gavin Newsom stupidly opened his fat mouth in 2004 and declared it so.

UPDATE: I just read David Mixner’s excellent post on yesterday’s election results in Maine.  He called the campaign against gay rights “gay apartheid.”  I agree.  I also agree that it is reprehensible for President Obama to sit on the sidelines.  I’ve been worried all year that maybe we have lost a major opportunity to repeal DOMA and DADT.  We’ve gotten some legislation, but DADT and DOMA are the big, consequential pieces of legislation that have to be repealed.  What is going to make Obama work on our behalf now?  I’m tired of half measures and getting patted on the head and told to go away.  I’m tired of politicians who do that.  I’m beginning to be sorry I worked for and voted for Obama last fall.  I’m beginning to be sorry I thought that he was different.

Iowa Poll on Same-Sex Marriage Disconnect

The Des Moines Register fielded a poll on same-sex marriage.  Its report was in the newspaper yesterday.  There were two things that jumped out at me as I read the article, and they seem to be disconnected to me.

Des Moines Regiser Graphic

First, Iowans are evenly divided on the question of whether to ban same-sex marriage.  As you can see in the graphic above:

Forty-one percent say they would vote for a ban, and 40 percent say they would vote to continue gay marriage. The rest either would not vote or say they are not sure.

The most intensity about the issue shows up among opponents. The percentage of Iowans who say they strongly oppose gay marriage (35 percent) is nearly double the percentage who say they strongly favor it (18 percent).

That’s all fine; I don’t have an issue with the numbers on their face.

Des Moines Regiser Graphic

But here’s where the disconnect comes:

The overwhelming majority of Iowans — 92 percent — say gay marriage has brought no real change to their lives.

So here’s my question.  If you’re not affected by your gay neighbor’s marriage, why in the world would you vote to ban it?  That smacks of spite, or simple bigotry, to me.  I don’t care if you dress it up in religious terms.  It would be a vote to remove a right from a distinct group of people based solely on the characteristics of the group.  That’s discrimination on its face, and is wrong.

It proves same-sex couples’ point — we’re not out there trying to gain special rights, and we’re not out there trying to change people.  We simply want to live our lives with the same — same, not different — legal protections that our heterosexual parents and brothers and sisters and friends enjoy.  And most importantly, our marriages and relationships cause absolutely no harm to anyone else’s marriage or relationship.

So it’s time to grow up, America.  Stop hiding behind religion as a cover for discrimination.  I don’t have a problem with anyone’s religious beliefs; anyone is free to believe in what they want in America.  It’s a free country (for some).  But my wise high school government teacher taught me that my right to move my elbow ends at the rib cage of the person next to me.  The same thing applies to religion.  People are entitled to their religious beliefs, but they’re not allowed to make them impact me.  But that is what’s happening in America now, and it’s time for it to end.

There is some hope, though, that people’s opinions are moving our way.  See Nate Silver’s analysis on the changing attitudes on same-sex marriage in America.  Attitudes are changing, albeit very slowly. 

Obama Administration Begins to Change Its Tune on DOMA

The Obama administration came out today and said that DOMA is wrong and is discriminatory.  The Department of Justice is, however, still defending the law in court, saying that the DOJ has to defend laws it doesn’t agree with.

President Obama made clear Monday that he favors the repeal of the Defense of Marriage Act, and intends to ask Congress to repeal the 13-year-old law that denies benefits to domestic partners of federal employees and allows states to reject same-sex marriages performed in other states.

Obama has long opposed the law, which he has called discriminatory. But his Justice Department has angered the gay community, which favored Obama by a wide margin in last year’s election, by defending the law in court. The administration has said it is standard practice for the Justice Department to do so, even for laws that it does not agree with.

The Justice Department did so again Monday in its response in Smelt v. United States, a case before a U.S. District Court in California. But, for the first time, the filing itself made clear that the administration “does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”

Some people have said that the DOJ doesn’t have to defend a law it doesn’t agree with.  I’m not so sure about that.  It seems to me that laws that have been duly enacted have to be enforced.  (But as I’ve said over and over, I’m not a lawyer and if I’m wrong about this, please correct me.)  The tone that’s taken, though, when defending a law is another matter entirely.  The Obama DOJ’s previous defense of DOMA was a slap in the face. 

The brief today strikes an entirely different tone.  This seems to me to be a repudiation of the earlier DOMA brief (linked above).  I still haven’t seen the president call on Nancy Pelosi and Harry Reid to get a bill repealing DOMA (and DADT) passed, though.  So this is welcome, but it seems a bit weak at this point.

And as for what this brief means, see Law Dork:

For those, reasonably, asking if this brief in any way “takes back” the earlier, problematic arguments made in the previous DOJ Smelt brief, it does not.  But, what it does do is put that brief in context of the Administration’s opposition to the policy aims of DOMA.

In order to get a full picture of the Administration’s changed approach on defending DOMA, we will need to wait until mid-September, when the Justice Department files its Motion to Dismiss in Gill v. Office of Personnel Management et al., the Massachusetts GLAD case.  I previously discussed the Amended Complaint filed in the case by GLAD earlier this month.  The government’s response to the Complaint is due by Sept. 18.]

So, we wait on the legal front, for this brief.  And we continue to wait on the legislative front for this administration to get off the dime and actually do something for the gay community.

Equality California: Wait Until 2012 to Repeal Prop 8

So it’s been decided at the highest levels of the “gay establishment.”  We will wait until 2012 to try to repeal Proposition 8 in California. 

For the first time, we have the opportunity to choose the best time to go back to the ballot, and we strongly think 2012 is the way to go.

I suppose the thinking is that because it’s a presidential election, the turnout will be stronger.  The thinking probably also goes that because Obama will be on the ballot again, we can ride his coattails to victory.  It’s an idea, anyway.  But in the meantime, we have gay and lesbian families who are unable to marry, who are unable to protect their families.  That’s not directly the fault of Equality California, although the No on 8 campaign was weak, to be kind.  It never should have come to this.  It wouldn’t have, if the No on 8 people had taken this seriously and treated it as a campaign that could have been lost rather than one that was in the bag.

I don’t doubt their assessment: Proposition 8 can’t be repealed in 2010 and we have to wait until 2012.  My point is that it’s a long time to wait.  Prop 8 will continue to be attacked on legal and constitutional grounds, and have some chance of winning there (to my non-lawyer’s mind).  And some people will still try to get the Prop 8 repeal on the ballot for 2010.  Will the gay establishment in California back them if they’re successful?  That’s an important question; we cannot lose another statewide referendum; it would be a calamity.

In the meantime, though, same-sex marriage is threatened in Maine.  No on 1 needs our help.

Harvey Milk and the Current State of the Gay Community

I watched Sean Penn’s film, Milk, on Friday night.  It’s stuck with me since then.  I’ve been thinking about Harvey Milk’s message — come out, let yourself be known to your friends, neighbors and employers — and above all, know hope.  I’ve been contrasting that message with the current gay “establishment” — Human Rights Campaign, among others — and its wishy-washy methods of gaining gay people rights in America.  It’s a worthy cause, if there ever was one.

But the gay establishment is letting Obama get away with not getting DOMA and DADT repealed.  They accepted his words — “Just wait until the end of my administration.  You’ll be happy then.”  That’s crap.  That is letting Obama pat us on the head and send us on our way, telling us to be good little gays and lesbians.  Weak.  Unacceptable.  Then there’s the No on 8 campaign.

The gay establishment’s conduct of the “No on 8″ campaign was everything that Harvey Milk despised.  The campaign had no guts, no backbone.  It didn’t mention the word “gay” in the campaign at all.  It didn’t show gay people as we are and it didn’t make the point that everyone is the same.  That flew in the face of logic (and a lot of research) — people who know gay people are more likely to vote with them.

Harvey Milk giving his "Hope Speech" at the 1978 San Francisco Gay Freedom Day.

The No on 8 campaign forgot what Harvey Milk said when the campaign against the Briggs Initiative (Proposition 6 in 1978) was gearing up.  In the film, Milk rejects and burns a proposed piece of campaign literature because it didn’t mention the word “gay.”  The campaign against the initiative had the slogan “Come out!  Come out!  Wherever you are!”  Gay people came out, too, to their families and employers and churches, and gay people went door to door to defeat Proposition 6.  And gay people won, too; the initiative was defeated 58% to 41%.  They did it then, in 1978, and people were not nearly as enlightened about gay people and gay rights as they supposedly are today.

That’s what still irks me about the No on 8 campaign, nine months later.  That piece of hate legislation, that constitutional amendment, could have been defeated.  It should have been defeated, too, considering what the polls were showing before the campaign started.  But people were complacent and figured that it was in the bag.  The campaign’s managers were also afraid, for some reason, to show gays or to even talk about them.  The gay community had forgotten its own history, and it only took 30 years for that to happen.  In truth, I think it happened long before that.

So where are the Harvey Milks in the gay community today?  Where are the brave men and women with backbone who won’t stand for Obama pushing us aside?  Where are the brave men and women who want gay people to introduce ourselves to our friends and neighbors?  Where are the brave men and women who tell it the way it is and let the chips fall as they may?   What would the state of gay rights be, if Milk hadn’t been assassinated?

The gay community has won a few important victories.  But the overall war is still going on.  DADT is still the law of the land, discriminating against gay service members and keeping us less safe.  DOMA is also still law, writing discrimination against gay relationships into law.  Those are battles left to fight.

But in the meantime, we have to remember Milk’s words from his “Hope Speech“:

On this anniversary of Stonewall, I ask my gay sisters and brothers to make the commitment to fight. For themselves, for their freedom, for their country … We will not win our rights by staying quietly in our closets … We are coming out to fight the lies, the myths, the distortions. We are coming out to tell the truths about gays, for I am tired of the conspiracy of silence, so I’m going to talk about it. And I want you to talk about it. You must come out. Come out to your parents, your relatives.

We have to talk about it in order to win.  What was true in 1978 is still true today.  We have to tell people who we are.  Only then can we win our rights and win acceptance.  There will always be the Anita Bryants of the world, but they won’t matter at all when we take away their power by telling people who we are.

Afraid to Risk Defeat

Afraid to risk defeat.  Those four words sum up the “establishment” gay rights movement in Washington.  David Mixner’s (Mixner is a former Clinton adviser) new essay (hat tip: Pam’s House Blend) calls the gay rights movement the “Oh Lord, not now!” movement.  That seems to be an apt observation.

There is a new chapter within the LGBT civil rights movement that can only be described as the “Oh Lord, Not Now!” movement.

These well meaning, hard-working and intelligent folks want a very neat time-lined, totally safe and predictable movement. One where, as a community, we do not publicly move until we are assured of victory. They don’t want us to venture from a proscribed game plan that mostly originates out of a Washington-based political strategy to gain our freedom. They live in fear that we will move too quickly, make someone uncomfortable and put our political friends in a tough spot. Afraid to risk defeat, they believe we have to make everyone like us and be on our side. Most amazingly they seek the approval of others instead of insisting that others have to liberate themselves from their own long held myths in order to receive this marvelous gift that our community brings.

I’ve been ambivalent about the lawsuits that are challenging DOMA, wondering if they’re going forward too fast.  After some considerable thought, though, I believe that we have to challenge every injustice without fail whenever it crops up, even if it’s a little scary or a little risky.  The Olson Boies lawsuit challenging Prop 8 is one example.  As for putting politician friends in uncomfortable spots, oh well. 

More Mixner:

The cabal of powerful decision makers wants everything to be safe, clean and perfect before moving. Don’t upset anyone, don’t jump ahead of ourselves and most of all don’t deviate from a well-laid plan that hopefully will eventually lead to victory. Every one of our allies has to be comfortable, the polls have to show us way ahead, and proof of victory has to be assured before trying anything new. The unpredictable grassroots could be destructive and create instability.

Sounds pretty good doesn’t it? Except that it doesn’t fit any model of success that I have seen in my near 50 years of organizing. In fact, my journey has proven to me that the unpredictable often is just the stimulus that movements need; victory often comes from an unplanned event that organizers could not have pulled off if they had worked years to do it. Most candidates would never be elected to office if they waited for their turn, had hard proof of victory and listened to the political pros. Our own current president is a perfect example of this fact.

Most historic movements are filled with grassroots moments that propel that movement to new heights. It could be a Rosa Parks who was just tired and didn’t want to surrender her seat or the automobile workers who occupied their factories in the 1930’s to the dismay of traditional labor leaders or a simple unplanned walk to the sea to get salt that appalled more traditional Indian liberation leaders.

The LGBT community has just experienced such a moment. All of the major national organizations initially condemned the current Boies and Olsen lawsuit by the American Foundation for Equal Rights. Now the community has embraced it as a bold and brilliant move. Today all over the web proud members of the LGBT community were sharing David Boies incredible Op Ed [not linked in Mixner's piece] in the “Wall Street Journal”. My guess is that this case will become one of the great historic moments in the legal history of this community.

According to Mixner, gay leaders are forgetting their history.  Grassroots moments are indeed often the sparks needed to ignite a movement.  That happened after Prop 8 passed.

Last bit of Mixner:

Along the way, we are allowing even our allies to abuse language in order to slow down our fight for full equality and freedom. We get nervous when we call the system currently being put in place Apartheid although that is exactly our current situation. Yes, I know we didn’t suffer like Nelson Mandela or the people of South Africa but that still doesn’t make the word invalid for our movement. We are slowly but surely being separated from other Americans. We have allowed them to avoid the word marriage out of fear we are being unreasonable by insisting on full rights through the civic institution. Our allies accommodatingly play with words like civil unions, domestic partnerships, significant others, same-sex alliance, etc in order to avoid that one word, that one institution that will get us closer to freedom than any other word….marriage. It is marriage that we want and marriage we should seek. Anything less plays into the system of Apartheid they are attempting to build. We are even afraid to use the word ‘freedom’ as if we are not deserving enough to own that word.

This is a fantastic point about avoiding the “marriage” word.  Perhaps it’s childish to want it all, but this is not a childish thing, fighting for rights and insisting that we are fully part of society.  We can’t allow people to sell us short, which they are doing when they delay on DADT or DOMA.  This is the LGBT civil rights movement.  I’m not saying that we have to irk all of our friends, but we can’t settle.  Where is the LGBT Dr. King in the gay rights movement?  Where is the new Harvey Milk?

The Massachusetts Case Against DOMA

The attorney general of Massachusetts filed a federal complaint against DOMA yesterday.  They are suing on constitutional grounds, saying that married same-sex couples in Massachusetts are unfairly being denied the same federal benefits that married opposite-sex couples enjoy.

BOSTON — Massachusetts, the first state to legalize gay marriage, sued the U.S. government Wednesday over a federal law that defines marriage as a union between a man and a woman.

The federal Defense of Marriage Act interferes with the right of Massachusetts to define and regulate marriage as it sees fit, Massachusetts Attorney General Martha Coakley said. The 1996 law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.

Massachusetts is the first state to challenge the federal law. Its lawsuit, filed in federal court in Boston, argues the act “constitutes an overreaching and discriminatory federal law.” It says the approximately 16,000 same-sex couples who have married in Massachusetts since the state began performing gay marriages in 2004 are being unfairly denied federal benefits given to heterosexual couples.

“They are entitled to equal treatment under the laws regardless of whether they are gay or straight,” Coakley said at a news conference.

[snip]

The lawsuit focuses on the section of the law that creates a federal definition of marriage as “a legal union between one man and one woman as husband and wife.”

Before the law was passed, Coakley said, the federal government recognized that defining marital status was the “exclusive prerogative of the states.” Now, because of the U.S. law’s definition of marriage, same-sex couples are denied access to benefits given to heterosexual married couples, including federal income tax credits, employment benefits, retirement benefits, health insurance coverage and Social Security payments, the lawsuit says.

The lawsuit also argues that the federal law requires the state to violate the constitutional rights of its citizens by treating married heterosexual couples and married same-sex couples differently when determining eligibility for Medicaid benefits and when determining whether the spouse of a veteran can be buried in a Massachusetts veterans’ cemetery.

This is, in my non-lawyer opinion, the line of attack that a successful lawsuit has to take.  It seems to me that DOMA is unconstitutional and it always has been.  It is also, as Emma Ruby-Sachs notes today in the Huffington Post, the conservative argument against DOMA.

But yesterday, the Attorney General of Massachusetts filed a complaint that chiefly argues DOMA’s violation of state’s sovereignty over the definition and regulation of marriage.

The genius of this complaint is that it takes a conservative argument — that liberal states should not be permitted to impose their tolerance and acceptance of homosexuality on the rest of the country — and turns it around to benefit a state that really pioneered gay rights in the U.S.

Even a conservative justice would support the notion that federal encroachment over those few areas where states have sovereign jurisdiction is unconstitutional. In this case, that principle supports, at the very least, limiting the application of DOMA when it affects state programs with federal funding.

If a conservative justice chooses to oppose the argument put forward by Massachusetts Attorney General Martha Coakley, then their logic could be used in the future to justify federal enforcement of equal rights on those states that oppose same-sex marriage. If state’s no longer have absolute jurisdiction over marriage, a liberal government can interfere with a conservative state’s policies.

Coakley’s lawsuit will likely be joined with Gill et al. and the two will proceed as the most viable challenge to DOMA (many think that Smelt threw too many punches and doesn’t have the same institutional support as the Massachusetts suits since the lawyers involved were not working closely with Lambda Legal and other LGBT litigation groups with long histories in the gay rights movement).

It also has the support of Senator John Kerry. Kerry, a lawyer by training, argued way back in 1996 in the Senate, that DOMA was unconstitutional.

His reasoning then, that the full faith and credit clause would be threatened by a law that refused to recognize marriage rights potentially given by some states and not all, has not been popular in modern law suits. Perhaps this is because the trend on hot button social issues has been towards state sovereignty and full faith and credit undermines that sovereignty.

Hence the genius of Coakley’s argument.

We can all look forward to the slow, grueling process that is the march to the Supreme Court. And hopefully, by that time, a number of new states will join the same-sex marriage party.

But Coakley’s suit is significant. It is a smart, novel attack on a law that is clearly unconstitutional, but also has the support of a waning, yet still significant portion of the American population.

Hopefully this lawsuit will prevail.  Congress did overstep its bounds when it passed DOMA in 1996.  The law was then, as it is now, discriminatory and wrong.  It has been 13 years.  If Congress can’t find the backbone to repeal DOMA (and DADT), hopefully the courts will.  Perhaps the conservative argument that Massachusetts is making will prevail.

Obama’s White House and Gay Rights

Barack Obama has been far from perfect on gay rights thus far.  Don’t Ask, Don’t Tell remains the law of the land, as does the Defense of Marriage Act.  Both laws codify overt discrimination against a discrete group of people.  That’s wrong, any way you slice it.

Don’t Ask, Don’t Tell should be repealed now, without any further delay.  The military brass is out of step with the rest of the country.  They need to get out of the 1950s.  They need to stop discharging service members that we really need, people like Lt. Dan Choi, an Arabic linguist whose trial is today.  People like Lt. Col. Victor Fehrenbach, who is a decorated fighter pilot.  People like Lt. Sandy Tsao.  DADT is asking them to live a lie.  We need these people.  Obama could stop their discharges by signing an executive order.  But he has not.  And we’re bleeding good service members that we urgently need. 

The Obama administration’s defense of the Defense of Marriage Act was especially offensive.  The brief went much further than it needed to.  In fact, it could have been written by someone like James Dobson.  DOMA needs to be repealed now, too.

So President Obama’s record on gay rights has been, shall we say, less than stellar.  Our first African American president has been absent on the biggest civil rights cause of our generation.  He has been talking a good game, as he did yesterday at a reception for gay leaders marking the 40th anniversary of the Stonewall uprising, when he said (full remarks here), “We’ve been in office six months now.  I suspect that by the time this administration is over, I think you guys will have pretty good feelings about the Obama administration.”

That remains to be seen.  Obama also promised to get the Matthew Shepard hate crimes bill passed.  He reiterated that he had called on Congress to repeal DOMA and to pass the Domestic Partners Benefits and Obligations Act.  He said that DADT “doesn’t contribute to our national security” but didn’t call for its repeal.

Gays have made a lot of progress with this president.  Obama is the first president who has actually uttered the acronym LGBT in an official setting.  But gay people have been waiting a long time for full, equal rights under the law.    It’s been forty years since Stonewall and still gay rights lag those of other groups.  I appreciate Obama’s words.  But it’s time to follow them up with action. 

It’s time to get gay rights passed in this country.  It’s time to repeal DOMA and DADT (and to stop discharges in the meantime), get ENDA passed, and get the hate crimes bill passed.  Anything less would be a failure for Obama and would be a failure for the country.  A nation that discriminates against a particular group — whether it’s Jews or gays or on some other racial basis — can’t survive in the long term.  Passing full equal rights is the right thing to do.

Still Second-Class Citizens

Read Frank Rich’s Sunday column from the New York Times.  It’s about the path of gay rights over the past 40 years, and how there still is so much left to do.  Excellent column.

The money quote:

No president possesses that magic wand, but Obama’s inaction on gay civil rights is striking. So is his utterly uncharacteristic inarticulateness. The Justice Department brief defending DOMA has spoken louder for this president than any of his own words on the subject. Chrisler noted that he has given major speeches on race, on abortion and to the Muslim world. “People are waiting for that passionate speech from him on equal rights,” she said, “and the time is now.”

Action would be even better. It’s a press cliché that “gay supporters” are disappointed with Obama, but we should all be. Gay Americans aren’t just another political special interest group. They are Americans who are actively discriminated against by federal laws. If the president is to properly honor the memory of Stonewall, he should get up to speed on what happened there 40 years ago, when courageous kids who had nothing, not even a public acknowledgment of their existence, stood up to make history happen in the least likely of places.