Gay doublespeak on the Constitution
CommentsEver since the Defense of Marriage Act (DOMA) passed in 1996, gay groups have been attacking the constitutionality of the law. The National Gay and Lesbian Task Force’s (NGLTF) initial statement in the wake of DOMA’s passage called it “unnecessary, discriminatory and probably unconstitutional.” When I pointed out on the Ricki Lake Show a few years ago that DOMA had been passed by Congress and signed by Bill Clinton, top Human Rights Campaign (HRC) lawyer Lara Schwartz retorted that DOMA was unconstitutional. The Gay and Lesbian Alliance Against Defamation’s (GLAAD) media resource kit on marriage says “many believe” DOMA violates the Constitution.
In addition, many same-sex marriage proponents have argued that the Supreme Court case in Loving v. Virginia contains a federal constitutional right to “marry” a person of the same sex.
Now, Lara Schwartz doesn’t get to decide what laws are or are not constitutional. She doesn’t get to determine what the Constitution does or does not mean. The people who get to decide that are Ruth Bader Ginsberg, John Roberts, and the other seven members of the U.S. Supreme Court. Which is quite promising for gays and lesbians. Ginsberg and Breyer are Clinton appointees. John Paul Stevens is the most liberal member of the court. David Souter, according to a 2003 cover story in the gay newsmagazine The Advocate, may be gay himself. And Anthony Kennedy has written two stirring pro-gay opinions overturning an anti-gay law in Colorado and sodomy laws nationwide. That’s five votes. You only need five votes.
So the gay community is pushing for the Supreme Court to overturn DOMA and declare that Loving v. Virginia’s right to marry applies to same-sex marriage, and thus implement same-sex marriage nationwide, right?
Wrong.
This week nine gay-rights groups, including NGLTF, HRC, and GLAAD, released a six-page set of instructions to same-sex couples about why they shouldn’t sue, even if they think suing will get them their “rights.” It says, “Most lawsuits will set us all back.”
Now, gay groups cannot have it both ways. If they think courts are unlikely to find that there is a federal constitutional right to same-sex marriage, and that DOMA would probably be found constitutional after all, then they need to stop claiming otherwise. If they believe their rhetoric, but wish to put their resources elsewhere (the document says “these efforts take time and money, and we don’t have unlimited resourses”), that’s fine, but they should respect the choices of people not under their thumb to file federal lawsuits.
That’s not what’s been happening. Same-sex couples in California and Florida who felt they had promising cases for a federal right to marry had to fight - not homophobes but gay-rights groups - every step of the way, groups who complained that the lawsuits weren’t “coordinated” with national strategies. Now, if these groups were run democratically like the National Organization for Women and the NAACP, I could see their point. But the boards of gay groups consist of two types of people: wealthy donors, and “affirmative action” appointees, usually people of color, youth, and transgender people. The actual opinions of the general membership are never taken into account. So these staff people appointed by people who got their positions because they are rich or because they make liberal people feel openminded believe they have the right to stop same-sex couples who never had a chance to influence these groups from suing for what they feel is their own rights? It’s seriously messed up.
Gay groups can admit there is no federal right to marry your own sex, and that DOMA is constitutional. Or they can get out of the way and let LGBT people sue for their rights. But to claim that these phantom rights exist, while doing everything they can to prevent the experts (the Washington Nine) from determining whether they exist or not, is just more gay doublespeak.
Hat tip: GayPatriot.
It’s an interesting premise, but I think flawed.
What if in 1948, Perez v Sharp when to the Supreme Court (we’ll assume a loss in California). As with any case, they might have lost. If that had happened, there would be no Loving v Virginia. Four decades have given consensus that Loving was correctly decided. This was not the situation in 1967.
And face it, constitutional questions aren’t typically cut-and-dried. There have been a lot of 5-4 decisions from the Supreme Court. We could consider half the court incompetent to rule on the Constitution, if they were same ones each time.
It is entirely possible that the current Court could look at the precedents and strike down DOMA and state amendments and laws forbidding same-sex couples from marrying. It is also possible that such a decision would be followed by years of entrenched battling as happened with abortion.
There were eighteen years between Perez and Loving. That was a bit slow. I’m all for marriage equality and feel that my husband and I ought to have access to all of the rights, protections, and obligations of a married couple. It’ll come. And if we take our time, maybe the fine, principled people of this country won’t quite as much feel it was shoved down their throats.
JohnD-
I’m not sure we disagree. You want to take your time before asking the Supreme Court to rule on same-sex marriage. As long as you’re not claiming in the meantime that you have a federal constitutional right to gay marriage, and as long as you’re not trying to stop people who disagree with you from suing for what they think is their own rights, I have no complaint about your approach.
We disagree.
I think an honest reading of the Constitution provides no ground for forbidding same-sex marriage, and a series of personal liberty cases (including Griswold, Loving, and Lawrence) build a compelling case that laws that seek to invade a couple’s privacy or interfere in their most personal decisions are indeed unconstitutional.
I have long taken the attempts by (so-called) conservatives to amend the Constitution as tacit agreement that the right lies within the Constitution. If they were real conservatives, they’d be insisting on same-sex marriage. None of this just living together and wanting to be treated as a married couple. If you want that stuff, you have to get married. They could go back to frowning at people who want to “just live together.”
So, yes, I do think there is a constitutional right for people to marry a same-sex partner.
But then there’s tactics. I remember Bowers v Hardwick. When the result came out, I said to a friend that Renquist lost any hope of convincing me when his opinion cited the Judeo-Christian tradition. I’m sorry, I thought he was Chief Justice, not Chief Theologian.
The main problem with the religious argument is that we live in a religious plurality. Many Christian and most Jewish denominations approve of same-sex couples. Should we tell clergy from the United Church of Christ or the Union for Reform Judaism that they can’t practice their religion as they see fit, due to an objection raised by more traditionalist groups?
Where’s the religious freedom in that? When do the liberal denominations get to overrule the conservative ones, if not even in their own houses of worship?
And why should the religious objection of any group have an effect on U.S. law? Our government is not “by the Orthodox people, for the Methodist people, and of the Catholic people.” That’s not going to stand.
I go sidetracked on dispensing the religious argument and forgot to come back to the SCOTUS idea.
Okay, just as the Supreme Court was wrong in citing the (supposed) Judeo-Christian tradition in Bowers, so are the opponents of same-sex marriage.
But Bowers took nineteen years to overturn. A decision by the Supreme Court at this point may find for marriage rights, or it may agree with the many state supreme court decisions that currently stand. I agree that this is not the time to bring the matter to the Supreme Court, as much as I would like to see Scalia grumpily announce from the bench that it’s a slam dunk after Lawrence.
Finally, as for whether I’m trying to stop people from suing, well, I have no power there. The groups promoting this are spread thin and don’t have the resources to take on too many cases at a time. They don’t want to be buried with requests for assistance. It’s tactics.
And, as you’ve noted elsewhere, this is not the only issue facing the gay community. Other priorities must be met too.
I suspect the announcement will only goad those who do not wish to see gay people have any rights into further action. (Because don’t kid yourself: the Liberty Counsel is not content at just restricting marriage rights. They’ve made it clear that they are opposed to domestic partnership rights as well. There are groups who feel that there should be no legal protections for gay people. And they have cash.)
John D-
Most of the arguments for same-sex marriage rely on equal protection, not privacy, rights. I think both are incorrect. But as I’ve been saying it’s not reasonable to claim that a constitutional right to same-sex marriage exists, but to oppose letting the Supreme Court decide, since it’s their job to decide what the Constitution means.
Unless you want conservatives to tell you what you would do if you were “a real homosexual,” it’s not a great idea for you to tell conservatives what we should do if we’re “real conservatives.” I think gay people should decide what “real gays” do, and conservatives should decide what “real conservatives” do.
I understand that you think it’s unconstitutional for the Chief Justice to site the Judeo-Christian tradition in one of his opinions. But you’re wrong. Anything at least five Supreme Court justices to is by definition constitutional. When they declared a person to be property, that was was constitutional. Separate but equal was constitutional for more than a half-century, from 1896 to 1954.
“Most Jewish denominations” approve of same-sex couples only in a very slanted way of counting “Jewish denominations.” Are you counting Reconstructionism as a denomination? There are twice as many Satmar Jews as Reconstructionist Jews. Why isn’t Satmar a denomination? If we go with the “big three,” your statement is false. Orthodox Judaism disapproves of same-sex couples, Reform Judaism approves, and the Conservative movement has passed three opinions - one approving, two disapproving.
Of course clergy can perform same-sex weddings. It’s been happening for decades, and the government has never tried to stop them.
You write “When do the liberal denominations get to overrule the conservative ones, if not even in their own houses of worship?” What you don’t understand is that no matter what the result of this debate, someone’s religious beliefs will be imposed upon someone else. Judaism doesn’t just insist that Jews marry members of the same sex. The Talmud specifically criticizes in very strong terms same-sex civil marriages. So if the government recognizes a Unitarian lesbian “marriage,” it will be going against my deepest moral beliefs. My vote is equal to yours. We have a democratic process. Whoever gets the most votes wins. Someone will impose their beliefs on somebody else. Why do you think it should automatically be you doing the imposing?
You write “And why should the religious objection of any group have an effect on U.S. law?” Many, many people of faith have changed or tried to change American law because of their religious beliefs. Most abolitionists were motivated by Protestant thought. Quakers led the movement for conscientious objection to the Vietnam war because of their pacifist beliefs. Martin Luther King quoted the Book of Isaiah in his “I have a dream” speech. Harriet Tubman was called “Moses.” Should all those people have had no effect on American law? Should only secular people be allowed to vote their conscience?
If a woman supports same-sex marriage because her horoscope advises her to, or because she flips a coin, or because she votes for anything Rush Limbaugh is against, will you suggest that her voice shouldn’t be counted in the debate? I don’t see why she should get to have input but an Orthodox Jew whose religion calls upon him to defend man-woman marriage should be silenced or disenfranchised.
John D-
When you write “The groups promoting this are spread thin and don’t have the resources to take on too many cases at a time. They don’t want to be buried with requests for assistance. It’s tactics.” you’re simply incorrect. I wish the marriage equality groups were focused on their cases and allowing others to focus on their own cases as long as they don’t ask for assistance. It’s much more nefarious than that. Check out:
http://www.foxnews.com/story/0,2933,194453,00.html
http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=15740
The arrogant gay-rights groups, who represent no one but their wealthy donors, are actively trying to stop same-sex couples from suing for marriage equality, because it doesn’t match their “strategy.” Who elected them lesbian of the year?
I don’t agree with your point about Liberty Counsel and other groups who want gay people to have no rights. Should I stop promoting the legal use of medical marijuana because some of the people pushing for it want to legalize heroin as well? If NAMBLA endorses same-sex marriage, will you switch sides?
David - no one is telling conservative groups what to do. John is only pointing out the obvious: Conservatives holler incessantly that there should be less government intervention but make great exception when it comes to marriage.
But your main idea that mainstream Gay groups are somehow duplicitous or evil because they want to discourage private lawsuits is absurd. They think they have sound legal reasons to do so and if they turn out to be wrong in the future that still doesn’t prove they are evil. Just incorrect.
Well, I think defending marriage is a conservative principle by definition. Liberals want the government to meddle with important social institutions - to use legislation to bring about the social change they desire. Conservatives want to keep things the same.
“Evil” is your word, but I don’t think it’s inappropriate to describe an unelected “gay leader” who claims to speak for LGBT people but goes to court to argue *against* a same-sex couple’s lawsuit demanding a federal constitutional right to marry.
“Discouraging private lawsuits” is what that six-page document did. That wasn’t evil. Arguing before federal judges that gay citizens’ marriage-equality court cases should be thrown out is evil.
As for duplicitous, I think that word applies to persons and groups that claim a federal right exists but works hard to make sure the U.S. Supreme Court never gets to hear a case that asserts such a right exists.
Who’s going to court to stop gay people from filing lawsuits?
You made reference to “an unelected ‘gay leader’ who claims to speak for LGBT people but goes to court to argue *against* a same-sex couple’s lawsuit demanding a federal constitutional right to marry.” Who would that be?
The two articles you cited in an earlier comment were about lawsuits that were not supported by main group of organizations fighting for marriage equality. I have never seen a case in which any of these groups have argued against a right to marry case.
Although the great irony here is that such an “unelected ‘gay leader’” would naturally be your ally. I mean, you’re trying to lead. There was no group that elected you. And you argue against there being a federal constitutional right to marry for same-sex couples.
Was it you?
You also note that “Arguing before federal judges that gay citizens’ marriage-equality court cases should be thrown out is evil.”
Is it evil to argue this before a state court as well? Because that’s that groups like the Liberty Counsel do. I don’t consider them evil. Just bigoted against gay people. But can you document any situation in which a gay rights group took legal action to squash a marriage case. Sure, no one was happy with the Hammer and Smelt case, but they it took no legal action to stop it. And it was a stupid lawsuit with no hope of benefit.
In any case, you did say that it wasn’t evil to “discourage private lawsuits.” Okay, discouragement is okay, and that’s all these groups have done. Which means your whole post is blather. If discouraging private lawsuits is okay, and that’s all they’ve done, then there hasn’t been any “gay doublespeak on the Constitution.”
Just “David Benkof doublespeak.”
And responding to further up.
Okay, what about the Satmars?
Well, if we slice and dice the Orthodox too fine, they end up in these tiny, smaller-than Reconstructionist groups. I mean, collectively, the Orthodox are about 15% of the American Jewish population. I don’t know how large each group within that is. Obviously smaller.
So of the “big three,” one group — the Orthodox — clearly disapprove of same-sex unions (of any sort, don’t even just live together). The Conservative movement now allows for the ordination of gay rabbis and rabbis may join same-sex couples. The Reform movement has been doing that longer.
I should note here that I belong to a Reconstructionist congregation. I’m in the “little fourth.”
Let’s take the The Two Big Ones. Face it, in America, a Jew is affiliated with a movement is likely to be either Reform or Conservative. Those two movements together represent more than 80% of affiliated Jews.
If we count by number of Jews, as opposed to numbers of Jewish denominations, it’s clear where the numbers lie.
In a stark contrast to Christians, most American Jews belong to one of the three denominations which approve of same-sex marriage rights.
Happily, with religious freedom and pluralism, my movement can’t force your movement to do anything. If a gay couple insisted that your rabbi perform their marriage ceremony, I would be willing to help you keep them out of the shul.
Ah, but turnabout is fair play.
Shouldn’t you be wiling to help me see that no one raises an objection to my rabbi performing, as he is willing, legal marriages for same-sex couples, under both Jewish law and civil law?
I’m calling for religious freedom here.
Will you stand for the religious rights of my rabbi and my friend the UCC minister to treat opposite-sex and same-sex couples the same, according to the beliefs of their congregations and their consciences?
And don’t tell me that it tramples the rights of the Orthodox if the Reconstructionists can provide legal marriages. You might as well argue that it tramples the rights of the Orthodox when Catholics eat ham on Easter.
Me again.
“David Benkof doublespeak” was unduly harsh.
It’s easy to forget that we’re talking about real people with real lives and not some political or legal abstractions.
But I would appreciate more honesty from the opponents of same-sex marriage.
Elsewhere on this blog, you have characterized the marriage of two lesbians as “MA-rriage” and “marriage” (your quotation marks), noting that you don’t consider it real marriage.
Legal marriages certified by the state. You don’t get any realer than that.
You don’t have to like it, just don’t pretend it’s somehow phony. That is harmful to the dignity of real live people. Not abstractions.
John D-
You should know by now that whatever you think of my arguments, I don’t present facts that I cannot substantiate. According to the Bay Area Reporter (San Francisco’s gay newseeekly), “Lambda Legal tried to talk the city of San Francisco from pressing its gay marriage lawsuit (and) it filed a brief in his case asking the court not to hear it.” You claim that gay groups “took no action to stop” the Smelt case, but the BAR says (unelected) lesbian attorney Jennifer “Pizer acknowledged that Lambda Legal has filed some briefs suggesting the federal court abstain from ruling on Smelt v. Orange County.”
Then there’s the Florida lawsuit for a federal right to gay marriage that gay groups filed a rival lawsuit in an attempt to quash the one they didn’t like:
“‘It’s very concerning that he’s acting completely on his own without any cognizance or sensitivity to the bigger picture in Florida and other states,’ said Shannon Minter, legal director for the National Center for Lesbian Rights (NCLR), a California-based organization that has filed a rival lawsuit in Florida in response to Rubin’s.” (stateline.org)
It is evil (again, your word) for unelected LGBT “leaders” to try to quash a marriage lawsuit brought at their own expense by same-sex couples. Do you think it is good?
Your statement that “The Conservative movement now allows for the ordination of gay rabbis and rabbis may join same-sex couples” is technically true. So is “The Conservative movement opposes same-sex commitment ceremonies and the ordination of gay rabbis” and “The Conservative movement urges people with same-sex attractions to explore ways of resisting those urges, including reorientation therapy.” All three positions were passed by the Committee on Jewish Law and Standards (CJLS), and it is misleading for you to cite the most liberal opinion while not even mentioning the other two. In addition, same-sex civil and religious marriage both violate Conservative halacha (Jewish law). Every opinion presented to the CJLS that approved of same-sex marriage was rejected. So in actuality two out of the three big American Jewish movements are against same-sex marriage.
And everyone agrees (including the Reform) that when Reform rabbis perform same-sex marriages, they are doing so in violation of halacha. It’s just that the Reform movement thinks some things - like gay equality - are more important than halacha. So in fact all three American Jewish movements agree that same-sex marriage is against Jewish law.
Why should I “help [you] see that no one raises an objection to [your] rabbi performing, as he is willing, legal marriages for same-sex couples, under both Jewish law and civil law?” As I mentioned above, nobody believes that Jewish law allows for same-sex marriages, so the first criterion you mention is impossible. And as for civil law, the Talmud specifies that same-sex civil marriages for Jews and gentiles are forbidden. Why would you ask me to violate Jewish law? Would you ask me to spend money on Shabbat and eat shrimp, too? If not, why would you ask me to violate Jewish law with same-sex marriage?
I absolutely support your UCC minister friend’s right to have whatever religious ceremonies he wants in the confines of his church. Exorcisms, ritual slaughter of chickens, cultic orgies, same-sex marriage - whatever he wants to do. Just don’t ask for me to approve it.
As for “And don’t tell me that it tramples the rights of the Orthodox if the Reconstructionists can provide legal marriages” I have never said that. It tramples the rights of the Orthodox when I’m told I cannot vote, blog, write op-eds, and lobby Congress for laws supporting man-woman marriage if one of my motivations is my religious belief that same-sex civil marriage is wrong. As long as you allow me to push for what I believe in, whatever my motivation, I will not complain that my rights are trampled if I lose fairly.
John D-
Thanks for your apology but my feelings weren’t hurt. I’ve been called much worse. The problem was you didn’t believe me when I said gay groups really tried to quash marriage-equality lawsuits.
You complain that I “don’t consider [SSM] real marriage. Legal marriages certified by the state. You don’t get any realer than that. You don’t have to like it, just don’t pretend it’s somehow phony. That is harmful to the dignity of real live people. Not abstractions.”
One state (soon two) claim that a man can marry a man. They did so because of four judges in each state. That doesn’t make it real. If four judges said a 10-year-old was bar mitzvah, they’d be wrong. If four judges declared Nevada to be on the West Coast, they’d be wrong. When the Supreme Court declared that Dred Scott was someone else’s property, would I have the right to say, “No, he’s not. A human being cannot be someone’s property”?
The one real thing that is missing here - if HRC or whoever filed lawsuits to stop the federal bench from considering SSM - I thought we all agreed the stated purpose was “not right at this time.”
Or they may be some facts in the case we are unaware of. I’m sure the majority of court cases are dozens of pages each, the California Ruling on marriage was 85 pages no?
Finally, when all is boiled down, the law is for lawyers not for the common person, the majority of the time. FMLA is a great example of the monkey business that goes on with law. You have the right to take unpaid leave from work to care for a family member but if your employer rules you can’t, there is no remedy written into the law for a monetary fine against them for DELIBERATELY breaking the law. So what seems very clear and reasonable on its face in fact isn’t.
Additional note to all the people on these posts who are happily coupled in same sex relationships but don’t think they need to be married- if you’re not legally MARRIED, the above FEDERAL law doesn’t apply to YOU! Think about it.
Jaroslaw-
The point is that these same-sex couples spent their own money to hire a lawyer to sue for what they believe is their federal right to marry. Then a bunch of unelected gay big shots swooped in and told these couples that they don’t know what’s good for them, and the groups are going to argue to the court that their cases should be dismissed and all their time, money, and effort will be a waste. That’s wrong.
Jaroslaw-
Federal marriage law doesn’t apply to any same-sex couples, whether they are married or not. That’s one of the things the Defense of Marriage Act does.
David - you seem to deliberately miss the point on half of my postings. I totally understand the Gay bigwigs did what you say.
What I am saying is I don’t know how common that is, for an “unrelated” party to try to intervene. It is obviously not illegal or they couldn’t do it. And conservative groups do it all the time. I read about them almost monthly or a bit more - some traditional marriage group in Arizona filed something in response to the California ruling. Don’t they have enough to do in Arizona?
And even if I’m a bit off target - you may be completely right, the individuals should be able to file their suits independently. But like I implied in other examples, the law is very complex and is for lawyers. I would bet my next paycheck the HRC is not the only group to intervene (and I’m referring to everything and anything not just SSM).
On my child support job, I was trying to find out about an out of state company’s ownership and employment records. The City told me to call the County who told me to call the state tax number registration office. They were prohibited by law to tell me who owned the company. Can you believe it? They pointed me to a website where I saw a photo page of the name & signature but trying to proceed from there I just went in circles. the point? The law is very complicated and often not what it appears to be.
And how could you miss what I was driving at with FMLA? FMLA is not a marriage laws. I said as plainly as I could to the Gay men on this site who think they don’t need marriage and are treated oh so well by everyone - FMLA does not apply to them because they don’t have a legal spouse.
So, the signifcant other gets sick - he can’t use FMLA to take care of him because they are not family members as defined by FMLA. (Family Medical Leave Act).
Jaroslaw-
I promise I’m not deliberately missing your points. I’m responding to what you write. I apologize if I’m not reading carefully enough; I’ll try harder in the future. But I cannot read your mind, and can only respond to what you actually write.
Of course it isn’t illegal for Lambda Legal to try to stop the lawsuits of gay couples who sue for marriage. I just think it’s reprehensible. Nobody elected them representatives of the gay movement, and they have every right to push their own strategies for achieving marriage rights. When they go a step further and try to quash same-sex couples who have a different strategy, I think it’s perfectly legitimate for them to be criticized.
I didn’t miss what you were driving at with FMLA. I just think it’s off-point. Couples in Massachusetts and California can get legally married or not - it won’t matter in terms of the FMLA, because DOMA prevents it from applying to them.
Could you document Lambda Legal’s involvement in the Hammer and Smelt case? I did a search and found no reference whatsoever to Lambda having an involvement in it.
The Alliance Defense Fund have the filings on their web site. There’s no amicus brief from Lambda, which seems strange, since if my typical adversary were agreeing with me, I’d be shouting it from the rooftops.
Can you please indicate a source, beyond your assertion, that would show that Lambda tried to get the case thrown out?
No problem, John D.
This is from the San Francisco Chronicle January 23, 2006:
“Several gay rights organizations, including Lambda Legal, joined Equality California in taking the unusual step of asking the Ninth Circuit to throw out Gilbert’s case.” (Richard Gilbert was the attorney in the Hammer and Smelt lawsuit.)
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/01/23/MNGBNGRIFE1.DTL
I appreciate your asking for documentation, which is completely fair. I have made mistakes before, and when I do, I correct them. But I hope you’re coming to realize I don’t just make stuff up.