Tag Archives: DOMA

Is Intellectual Honesty Too Much to Expect?

Okay, that’s a rhetorical question.

After Governor Pence responded to the decision striking down DOMA, citizens who disagreed with him flooded his Facebook page. Their comments were removed; when asked about that, Pence said the comments had been “uncivil” and profane. As the media has reported, screenshots proved otherwise. Evidently, our governor is too thin-skinned to engage in good faith with those holding opinions different from his own, so his staff simply erased them.

That’s a relatively minor–and all too predictable– example, however. What really caught my eye was an Op-Ed penned by Curt Smith in yesterday’s Star–a counter to the Star’s surprisingly excellent editorial.

Curt Smith, for those who are unfamiliar with his background, is a longtime local culture warrior. I first met him when I was the ‘token heterosexual’ in a group that visited the offices of Senator Dan Coats to express concerns about “Don’t Ask, Don’t Tell.” This was during Coats’ first term, and Smith was his AA. Smith met with the group–Coats did not–and spent most of the uncomfortable half-hour telling us that God disapproved of homosexuality.

Let’s just stipulate that it wasn’t a productive meeting.

My other illuminating Curt Smith story occurred when the Jewish Community Relations Council convened a community-wide meeting at the Jewish Community Center, to determine whether the organization should take a formal position on the effort to place a ban on same-sex marriage in the Indiana Constitution. The session began with a panel discussion; David Orentleicher and I argued that a position opposing the Amendment and supporting same-sex marriage was consistent with Jewish values. Curt Smith and someone I don’t recall spoke in opposition. During the lively question and answer period that followed, Rabbi Dennis Sasso spoke eloquently about the importance of separation of church and state, and made several biblical references to justice and equality. Curt Smith responded by telling Rabbi Sasso that he had misunderstood the biblical text, and he offered to send the Rabbi “biblical scholarship” that would straighten him out.

I’ve never forgotten that exchange. It was one of the most arrogant and offensive things I’ve ever seen.

Arrogance is one thing, however, and dishonesty is another. In his column yesterday, Smith wrote the following:

A 2012 study published in a well-known academic journal, Social Science Research, showed children raised by lesbian or gay parents fared worse than children of straight parents when it came to education, mental health, criminal history and other measures. The study looked at a large, random sample of young adults over age 18.

Well, not exactly. If you consult the actual publication, you get a significantly different, and far more nuanced, set of conclusions. The study did find slight advantages enjoyed by children of  non-divorced heterosexual families over those of non-separated homosexual parents. However, this result was qualified because the researcher did not have a sufficient number of children from the latter group to allow her to draw statistically-significant conclusions.  She also did not control for adoption. (A number of studies find that adopted children and biological children have different experiences and thus outcomes that are statistically different.) Furthermore, several scholars commented with concerns about aspects of the study’s statistical methods, and the author readily conceded the legitimacy of those methodological concerns. The study’s basic conclusion? “This probability study suggests considerable diversity among same-sex parents.”
Well, yes.
Most research has found little or no difference between the children of gay and straight parents. Perhaps those studies are wrong. On the other hand, as more states recognize same-sex marriages, and those families have the same social supports that heterosexuals enjoy, such differences as exist may well disappear. I don’t know, and neither does Curt Smith.
But whatever the evidence ultimately shows, honest people will deal with it. Dishonest ideologues will lie about it.
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Prognosticating and the Supremes

As any lawyer will attest, predicting the outcome of Supreme Court cases is foolhardy in the extreme. But I’ve never let the prospect of making a fool of myself stop me, so I’m going to go out on a limb and do just that.

Yesterday, as practically everyone within earshot of a news report knows, the Court heard the first of two important cases on marriage equality. Yesterday’s arguments dealt with the appeal of the Ninth Circuit decision striking down California’s Proposition Eight; today’s will center on the constitutionality of DOMA, the “Defense of Marriage” Act.

I expect the Court to strike down DOMA, which–among other things–allows the federal government to treat marriages recognized by different states differently. Throughout our history, laws governing marriage have been the province of state governments. DOMA allows the federal government to treat legally married citizens from some states very differently than legally married citizens from other states. I expect the Court to follow its own ample precedents on federalism and equal protection; I’m pretty confident DOMA will fall.

That said, the betting in legal quarters on Proposition 8 has always favored a Court cop-out.

When the Justices asked for briefing on the issue of standing, most lawyers following the case saw that as a signal that they were looking for a way to dispose of the case on procedural grounds, that they were looking for a way to avoid ruling on the merits of the question whether marriage–which the Court has repeatedly ruled is a “fundamental right”–must be made available to gay citizens as well as straight ones.

As disappointing as it would be to have the Court sidestep that question, a decision to the effect that only the Governor and Attorney General of California had standing to appeal the judgment (or a ruling that review had been “improvidently granted”) would have the effect of reinstating the lower court’s decision. Although such a decision would affect only California, that state has some 11% of the population of the U.S. The number of citizens living in states with marriage equality would grow dramatically, adding to the pressures that are already mounting elsewhere.

As numerous observers have noted, in the absolute worst-case scenario, the Court’s decisions in these cases can only slow the inevitable. Same-sex marriage will be a national reality within the next few years, with or without the Court’s assistance. A decision containing a ringing affirmation of equality would be lovely, but its absence will not alter the eventual result.

So there you have my predictions. I hope I’m wrong about Proposition 8, but given the questions thrown at the litigants during yesterday’s arguments, I doubt it.

At this point, we’ll just have to wait and see.

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Little by Little….

A federal appeals court recently became the second such court to declare DOMA–the federal “Defense of Marriage Act”–unconstitutional. The challenge was brought by an 83-year-old resident of New York State, where same-sex marriage is legal. When her partner–pardon me, her wife–died, DOMA allowed the IRS to assess an estate tax nearly 400,000 higher than she would have owed had her spouse been a man.

The court ruled that DOMA violates equal protection, by treating couples (all of whom are legally married in New York) differently, based solely upon whether the marriage partners are of the same or opposite sex. But the ruling did something even more important: it analyzed the case under what is called “heightened scrutiny.” If this part of the ruling holds up, it will make cases alleging discrimination based upon sexual orientation much easier to win.

Doug Masson has posted an excellent summary of the case. As he reports

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” “Substantially related” means that the explanation must be “exceedingly persuasive.”. The justification must be genuine, not hypothetical and not invented after the fact in response to litigation.

The Court rejected BLAG’s argument that Congress had an important interest in passing DOMA to maintain uniformity on the issue of marriage-related benefits in protection of the treasury. The court observed that Congress has historically allowed states to go their own way on marriage. (For example, rules about age, divorce, consanguinity, and paternity.) Indeed, the sudden federal intrusion into marriage is, itself, suspicious. (All the states-rights advocates have been clamoring for repeal of DOMA, yes?)

Another justification was preserving the historical understanding of marriage. But, the court observed, ancient lineage doesn’t protect a law where it lacks a rational basis. Miscegenation and anti-sodomy laws had pretty long historical roots of their own.

Another justification was encouraging responsible procreation. The court recognized that this could be an important government interest but did not see that DOMA advanced that interest.

DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

The Court also dismissed as “far-fetched” the idea that the laws passed by Congress might actually make people gay or effect their sexual orientation. It was also not persuaded by the idea that merely getting to use the extra-special word “marriage” would, on its own, promote stable opposite-sex marriages.

Because the court concluded that same sex married couples constituted a “quasi-suspect” class and because DOMA was not “substantially related” to an important government interest, the Second Circuit concluded, it must be regarded as being in violation of the Equal Protection Clause of the 14th Amendment.

The ruling was satisfying. What was not satisfying–indeed, what was very disappointing–was the role of Indiana’s Attorney General, Greg Zoeller, who led the group of states arguing for DOMA and its constitutionality. I have generally been impressed with Zoeller; unlike the hot dogs and culture warriors and know-nothings we seem to elect, he has come across as thoughtful and modest, and willing to abide by precedent. (I realize that complimenting a lawyer on willingness to abide by the law is a bit odd, but these days, the bar is set really low.) His willingness to fight for a discriminatory law in a case that did not directly involve Indiana–a case where he was a volunteer–was disappointing.

The bottom line, however, is that despite the efforts of Zoeller and those who agree with him, equality for GLBT folks is coming.

Little by little, the barricades are coming down.

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Cultural Whiplash

Who are we supposed to believe, our lying eyes or the polls?

On the one hand, efforts to marginalize gays—to label them as permanently “other,” as second or third-class citizens—have heated up since the advent of the Tea Party and the 2010 elections. Here in Indiana, we have seen the resurrection of efforts to constitutionalize a ban against same-sex marriage, an effort that has been dutifully endorsed by the majority party, and seems likely to pass during this legislative session.

Fortunately, the Indiana Constitution requires that proposed amendments be passed—in identical form—by two separately elected legislatures, so there’s hope it can still be defeated.  There is no similar roadblock to an equally hateful anti-immigration provision, modeled upon Arizona’s law, or to measures aimed at rolling back women’s right to control their own reproduction.

Other states seem fixated on efforts to exclude and demonize Muslims. The most ludicrous are measures passed by several states that outlaw the imposition of Sharia law—thus “solving” an absolutely non-existent problem.

In the U.S. Congress, a number of anti-woman measures are part of what appears to be a full-court press to repeal the 21st—and maybe the 20th—century. Newly elected ideologues are voting against science (the 31 Republican members of the House Energy Committee voted that global climate change doesn’t exist and besides, it isn’t caused by human activity) and economic reality (trying to reduce the deficit by refusing to raise taxes on even our richest citizens, and passing cuts likely to reduce revenues further by throwing the economy back into recession).

Looking at the news these days is a prescription for depression. Who are these people we’ve elected, and why are they actively trying to repeal the Enlightenment and destroy everything that makes America great? Are they insane, or just really, really ignorant?  What does it say about us that we elected these buffoons?

And yet.

Several recent surveys from respected pollsters have shown a slight majority of Americans in favor of same-sex marriage. An overwhelming majority favors legislation that would forbid employers from firing people simply because they are gay. The same Congress that seems to be trying to put women back in the kitchen, barefoot and pregnant, did repeal Don’t Ask, Don’t Tell. The Department of Justice has confirmed what seemed pretty obvious to many of us—that the Defense of Marriage Act is unconstitutional—and consequently, announced that DOJ won’t defend it in court. Even Arizona appears to be backing off its hateful anti-immigration campaign—not because Arizona legislators have suddenly come to their senses, but because their bigotry has cost the state millions in lost business and tourism. Nice people decided to spend their money elsewhere—and it turned out there are a lot of nice people.

In short, the politics of equality is decidedly mixed. If we look for evidence of progress, there’s plenty to see. If we look for evidence that we are regressing, we’ll see that too. If we look at the whole picture, we get whiplash.

I cling to one amply documented bit of evidence: every poll, every survey, shows that the younger generation—those under 35 or so—are more tolerant, more accepting of difference, more at ease in a multi-ethnic, multi-cultural world.

So when my generation is gone, things will improve. Unfortunately, a lot of people will be hurt while we’re waiting.

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The Kids Are All Right

Republican Presidential hopefuls keep playing to their (aging and shrinking) base.

Mike Huckabee recently said something to the effect that President Obama isn’t “really” American, because he wasn’t a Boy Scout with a father in Rotary. For his part, Newt Gingrich, that intrepid defender of traditional marriage, wants to impeach President Obama for his decision not to defend the constitutionality of DOMA in court.  (Lest you question Gingrich’s  commitment to “traditional” marriage, I would point out that he’s had three such marriages himself, and in each one, he dutifully behaved the way men “traditionally” behaved–at least in 19th Century France–by cheating on his wives.)

I hate to tell Newt this, but in the 21st Century, traditions are changing.

A new survey from Pew has confirmed what any objective observer can see: a continuing and rapid rise in support for same-sex marriage since 2009. Currently, 45% say they favor allowing gays and lesbians to marry legally, while 46% are opposed. In Pew surveys conducted in 2010, 42% favored and 48% opposed gay marriage and in 2009, just 37% backed same-sex marriage while 54% were opposed.

And despite the current war on women being waged in Congress, Pew found that opinions about abortion have also liberalized. In 2009, for the first time in many years, the public was evenly divided over whether abortion should be legal or illegal in all or most cases. But support for legal abortion has recovered and now stands at 54%.

Independents have become more supportive of both gay marriage and legal abortion since 2009. Roughly half of independents (51%) now favor same-sex marriage, up from 37% in 2009. And 58% of independents say that abortion should be legal in all or most cases, compared with 47% in Pew Research Center surveys two years ago.

When you look at the age breakdowns in these and other polls, you’re left with an inescapable conclusion: if we can just hang in there until the old farts in my age cohort die off, the kids will be all right.

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