by Michael Blim
The bus Thursday night was late. I slumped back onto the bench as the four-hour trip to New York had just gotten longer. As I settled in, I noticed a young kid waiting too. He had a Sesame Street character sticking out of his pink backpack, and he wore pink tennis and a rainbow-colored belt. On the back pocket of his jeans was written “God loves gays.” He might have been eighteen.
Flaunt it, baby, flaunt it, I thought. There’s still a very good chance you’ll get to New York in one piece. We’re almost normal now.
Four and a half hours later, the bus came bounding off the Williamsburg Bridge into Chinatown. It was one o’clock by the time I transferred at West 4th Street. The C train was no longer running, the A train was stopping at Jay Street, and lovely shuttle buses were offered from thereon. As I boarded the train to Brooklyn, a bunch of drunken young revelers hopped on. They were a mess of plastered and tinted hair, and a few were prettily painted. Kids of several hues once more with rainbows, and these too were all right with the world.
Finally the shock of recognition hit: the Stonewall 40th Anniversary was coming up Monday, and New York’s big Pride parade was on Sunday.
I had been oblivious. On the long bus ride, I had been reading the U.S. Justice Department’s June 11 brief supporting dismissal of a suit challenging the constitutionality of the 1996 Defense of Marriage Act (DOMA). The motion to dismiss will be held this upcoming August 3.
I had been steaming. By the time the A train reached Brooklyn, it was as if I had the taste of Mexican mole negro, the bitter chocolate sauce, in my mouth. Yes, we were free, to which the rainbow kids could testify. But we had not secured our rights. And American society and we had fallen far short of liberation.
The Justice Department brief says it all. The Obama Justice Department brief says it all. I add the adjective “Obama” because even though Andrew Sullivan has noted that the brief’s author W. Scott Simpson is a Bush appointee and part of a trial team that defended the Partial Birth Abortion Act of 2003, Tony West, the Obama-appointed Assistant Attorney General, signed off on the brief. No one has yet called it a mistake.
The brief seeks dismissal of a suit by Andrew Smelt and Christopher Hammer alleging that their constitutional rights are violated by the provisions of DOMA that established for the first time in American history that marriage in the federal system of laws consists of a union between a man and a woman.
The brief is an exercise in deceit and disingenuousness. DOMA merely “codifies” tradition, Justice argues, even if the republic had survived without a federal definition of marriage for over 200 years, and even though marriage is a state and not a federal matter. DOMA, Justice avers, doesn’t prohibit same-sex couples from marrying: it just prevents same sex couples from any claim to benefits based on marriage, and it protects other states from having to provide benefits to same sex marriage partners who leave same sex marriage states and move to states without same-sex marriage.
Perhaps knowing that congressional reports supporting DOMA might be read by someone once more, the Justice brief takes but a short paragraph to describe the bill’s real purposes. Congress declared that the United States — here the Justice Department is quoting from the 1996 House Judiciary committee statement reporting the bill for passage — has an interest “’defending and nurturing the institution of traditional, heterosexual marriage’ because of the role it plays in ‘procreation and child-rearing.’” The Congress wanted to support “’traditional notions of morality.’” The Congress wanted to protect “’state sovereignty and democratic self-governance.’” Finally, Congress wanted to preserve “’scarce government resources.’” (Case 8:09-cv-00286-DOC-MLG, Document 25, Filed 06/11/2009, pages 16-17)
The Congress, Justice argued, has a right to legislate as it pleases on same-sex marriage, and to assert as a rational basis for its actions any reasons, however, prejudiced it might care to give, because persons as homosexuals, lesbians, bisexuals, and transgender people have no rights to due process or equal protection under the Constitution.
Bald, ugly, and true. We don’t have Constitutional rights as gays, lesbians, bisexuals, and transgender persons.
But did the Obama Administration Justice Department need to re-affirm this? No, it could have refused to defend DOMA, and the Court would have assigned counsel to defend the law. Instead, the President has said that his Administration will seek DOMA’s repeal. As an opponent of same-sex marriage, the President can borrow a page from his Justice Department’s brief and seek repeal of the law while not supporting any instrument or political effort to legalize same-sex marriage in the 50 states. Can’t you read the headline crawling across CNN now: “Obama seeks repeal of DOMA: Prez Says No Federal Question Involved.”
(By the way, how will the Administration seek DOMA repeal when it has just defended the Act in federal district court? That will sure provide a “profile in courage” to encourage the 218st member of the House and the 51st member of the Senate to vote for repeal.)
Moreover, nowhere has the President mentioned that he views discrimination on the basis of sexual orientation of whatever sort a Constitutional question. He taught constitutional law for some years. Has he no opinion on the matter? Let him speak it. He is no Supreme Court nominee.
Let me close on a personal note. I am no advocate of same-sex marriage. I could be married to my boy friend of 16 years legally as a Massachusetts resident, but having discovered from a lawyer that it confers no inheritance advantage on him if I leave a will that protects his rights, I have refused.
I was born under a different gay sign. Having come out shortly after Stonewall, liberation was my path, coffee houses and community centers my context. My tribe avoided bars, seeing them rather sagely for the time as commodifying gay sex and gay identities — never mind their success rate in converting social drinkers into alcoholics. I didn’t give a damn about respectability or what straight people might think. I worried more about the perverse power the commodity culture was unleashing in our community.
I was “brought up” as a gay man to believe that marriage was the linchpin of a system that locked up women, glbt people, and even straight men into deadly heterosexist relations. I wasn’t too keen on the gays in the military campaign either, reasoning that American military power was a threat to world peace, and best diminished rather than rationalized.
If the goal is liberation, as mine remains, both marriage and the gays in the military seem odd struggles.
But scratch any American, and scratch me for that matter, and beneath whatever we profess, you’ll find a raging libertarian. Justice Douglas said that “the right to be let alone is indeed the beginning of all freedoms,” and for a people obsessed with whatever passes for freedom, however fuzzy it may sound, that is saying a lot. For Justice Brandeis once put it, a civilized person craves above all “the right to be alone,” and even though Americans historically have been at least a quart shy of honest-to-God civility, each of us is full to the brim with libertarian reason.
Many glbt people find marriage and the military congenial with their version of the life worth living. DOMA and “don’t ask, don’t tell” are a profound insult to our human dignity. The Obama Administration’s pro-DOMA brief was an oddly timed insult, considering that gay communities, including mine in Boston, had begun celebrating PRIDE within a week of the court filing.
I stand with all who want same sex marriage and those who wish to serve our country in the military, even though these are choices I would never make myself.
But I ask all who care to ask President Obama if he stands with us in our demand for the Constitutional rights to equal protection and due process under the laws of these United States. I appeal to the 250 glbt people who will be gathered in the White House this Monday to ask the President to support our Constitutional right to equal protection and due process under the laws of these United States.
To them and all who care: Keep your eyes on the prize!
Thanks to JC Salyer for his help understanding DOMA and the law.