Wednesday, June 17, 2009

Promises Are Made of Air
by David Link

Posted on June 17, 2009

The gay community’s reaction to the Obama administration’s insulting and slanderous brief in the Smelt case has had some effect. A DNC fundraiser set for next week is falling apart, and the President will announce he wants to give the same federal benefits to homosexual federal employees as he gives to heterosexuals (well, some of the same federal benefits; health care seems to be off the table – the single “benefit” that comprises the lion’s share of all employee benefits).

We have every right to be furious at the President, but it’s important that we be furious for the right reasons.

I don’t think it is fair to criticize the administration for filing the brief. The well-intentioned but hapless plaintiffs in this case have gotten themselves (and the rest of us) in over their heads. They are certain to lose their case, and it’s better if they lose early on procedural grounds rather than in a published opinion that rules against us on the constitutional issues. The administration is doing nothing wrong in filing a brief to clear away this irritation.

The brief did not need to go any further than the procedural issues, and would almost certainly have prevailed on that ground. It was a mistake to have gone further. But when it did wade into the constitutional issues, it adopted arguments – as the administration’s – that cannot be entertained by any reasonable person. The argument (and I quote) that “DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage,” is a non sequitur. As Joe Solomonese so tartly put it, this is to say that “DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals.” Spend some time with that analysis, because Solomonese nails it. The argument assumes it is possible to provide benefits only to heterosexuals in a way that does not discriminate against homosexuals. Would it also be possible to provide benefits only to men and not discriminate against women? Or to provide benefits to whites in a way that does not discriminate against people of color?

There is only one way to reconcile these incompatible ideas; adopt the right’s still dominant theory that all people are really heterosexual, and could marry someone of the opposite sex if they weren’t so insistent on being perverse. Everyone could get “traditionally” married, and should, so it is right to design public policy to benefit only that form of marriage. Gay people do not exist in this worldview.

This is good enough for the right, but it is not good enough for this administration – and I don’t think the President believes it. But when you look at the miniscule gesture of federal benefits, you can see the real problem he faces. The reason he cannot grant health care benefits to federal employees is because DOMA is still on the books. DOMA is the single law that most fully incorporates that outdated notion of a world that has no homosexuals in it.

The President has promised – repeatedly – that he will work to repeal DOMA. But that’s all he’s done: promise. Similarly, he has promised to repeal DADT. All the federal benefits and hate crimes laws and even ENDAs in the world cannot balance out the harm these two laws, which actively incorporate discrimination against lesbians and gay men in federal law, do.

DADT must go, entirely. And about 70% of Americans agree. That is how perverse discrimination can be – on this single issue, the most talented politician of our era is afraid of 30% of his constituents.

The numbers are very different for DOMA, and the President is right to be cautious. But there is no need to repeal all of DOMA in order to minimize its damage. It makes political sense to keep section 2 of DOMA in place, which allows individual states to wall themselves off from progress, while repealing section 3, the part that prohibits the federal government from recognizing any equal treatment for same-sex couples.

I can think of no president in my lifetime – no politician, in fact – who is more capable of understanding what the gay community experiences, and who could, if he chose, articulate for the American people a course of action. It is his abject failure on that front so far that has made the DOJ brief such a catastrophe. I hope his speech tonight helps to clarify that we can expect something more than just gestures from him in the next few years.

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