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Tuesday, June 02, 2009

Civil Unions, Marriage, and the Feds

June is now "Lesbian, Gay, Bisexual, and Transgender Pride Month." Someone call Hallmark, because we're going to need a bunch of cards. President Obama issued the proclamation yesterday, which makes it official. No one gets any new rights or privileges, but they do get a promise from Obama to "continue to support measures to bring the full spectrum of equal rights to LGBT Americans."

What are those "equal rights?" According to the proclamation, "These measures include enhancing hate crimes laws, supporting civil unions and Federal rights for LGBT couples, outlawing discrimination in the workplace, ensuring adoption rights, and ending the existing 'Don't Ask, Don't Tell' policy in a way that strengthens our Armed Forces and our national security."

Now someone clear something up for me -- civil unions are equal to what, exactly? Not marriages, that's the whole point of civil unions. They're the compromise between the positions of marriage for all and marriage for some. Civil unions represent equality in a "separate but equal" sense. That they aren't actually marriages is the whole idea.

You could say that former vice president Dick Cheney passed Obama on the left yesterday, as he came out in favor of same sex marriage. "I think that freedom means freedom for everyone," he told the National Press Club. "As many of you know, one of my daughters is gay and it is something we have lived with for a long time in our family. I think people ought to be free to enter into any kind of union they wish. Any kind of arrangement they wish."

But this isn't the "man bites dog" story that the media has been trying to make it. Cheney's position is actually only slightly more supportive of these marriages and just as unsupportive of equality. "The question of whether or not there ought to be a federal statute to protect this, I don't support," he continued. "I do believe that the historically the way marriage has been regulated is at the state level. It has always been a state issue and I think that is the way it ought to be handled, on a state-by-state basis... But I don't have any problem with that. People ought to get a shot at that."

Of course, his grasp of history is a weak as his grasp of the laws against torture. While not a federal statute, the Supreme Court decision Loving v. Virginia represents federal action in states' marriage laws. Loving struck down laws banning mixed race marriages. No one sane thinks this was a bad idea anymore. This is an example of what the right calls "judicial activism," but using it as an example of bad jurisprudence would be political suicide.

And it turns out that the federal level is where this will have to be resolved. While changing laws state by state would be a long haul, in a saner world it would get the job done. But the federal government's hand is in here. Bill Clinton guaranteed that the fight for marriage equality would reach the federal level by signing the backwards-named Defense of Marriage Act (DOMA). DOMA blocks the federal government from recognizing same sex marriage, which means that nearly all of federal statutes that benefit other married people aren't applied to couples of the same gender. DOMA doesn't so much "defend" marriage as it ignores those for same sex couples. In short, it pretends people who are legally married aren't married. This isn't even "separate but equal." This is just separate.

That the feds can wash their hands of marriage equality and leave everything up to the states is a pretense that Cheney engages in plainly and Obama implies. For Dick Cheney, that pretense comes without consequence -- he has no hope of ever being elected to anything again. He'll never be in the position of having to defend that pretense, either in the court of public opinion or a court of law. But Barack Obama doesn't enjoy the freedom conferred by political hopelessness. Dealing with stuff like this is his job.

And the first real test of his commitment to equality is already in his lap. Writing for AMERICAblog, Joe Sudbay reports that the fight over DOMA is just beginning.

"[A]s I've noted before -- and will continue to note, GLAD filed a lawsuit aimed at finding Section 3 of DOMA unconstitutional," he reports. "The government's answer is due by the end of June. During this LGBT Pride Month, if the Obama administration chooses to actually defend DOMA (and they do have a choice), that will speak much, much louder about Obama's continued support for gay Americans than this proclamation. (I actually think that if Obama wasn't hindered by his political advisers and consultants, he'd be much better on the issue. You know, in an off-the-record kind of way, he probably already is.)"

According to the Gay & Lesbian Advocates & Defenders (GLAD), "Section 3 of DOMA applies to the federal government only. It overrides a state’s determination that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs, even though the federal government has always deferred to state determinations of marital status. Under this law, 'the word "marriage" means only the legal union of a man and a woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.' This law requires all federal departments and agencies to disrespect the valid state-licensed marriages of same-sex couples but not other married couples. As a result, only married same-sex couples are denied all rights, protections and responsibilities associated with marriage at the federal level."

As I said, it pretends that legally married people aren't actually married.

Sadly, whether President Obama will keep his promise to "continue to support measures to bring the full spectrum of equal rights to LGBT Americans" is an open question. That he pretends civil unions represent equal rights isn't a good sign.


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vet said...

I'll keep saying it...

"Marriage" is, first and foremost, a religious status, not a legal one. So the government - at any level - has no business regulating or recognising it at all. Simply remove *all* rights and rules that use the word, in any context, then let churches get on with their rightful business of marrying people, or not, entirely at their own discretion.

Then re-attach all those rights, exemptions etc. to exclusive "legal unions", which can be entered into by any two people of age, and declare that anyone with something formerly recognised as a "marriage" should be considered "legally united" to their partner.

Hey presto - equal rights, plus defended marriage. If religious, gay couples still want to marry, that becomes purely a private matter between them and their church. Which is as it should be.

M said...

To say that the government should have no role to play in recognizing marriage, or even updating the definition of marriage to a more inclusive uniform standard, assumes the IRS has been destroyed and property transfer disputes, or adoption issues, will never, and should never, find their way to Federal Appeals court.

Believing that states can handle the constitutionality of civil rights isn't in good hands as American history is written.

And Dick Cheney isn't a Gay rights activist all of a sudden.

And does anyone trust this current Supreme Court to rule on issues of gay marriage rights or abortion?

I sure as hell don't.