In July of 2010, Russ Feingold did the principled thing. After weeks of markup and debate, the liberal Wisconsin senator voted against Dodd-Frank. "My test for the financial-regulatory reform bill is whether it will prevent another crisis," Feingold said at the time. "[The bill] fails that test." Ironically, Feingold's fortitude only served to further weaken the legislation. In order to break a filibuster, Dodd-Frank's sponsors had to appease conservative Massachusetts senator Scott Brown, who opposed a "bank tax" that would have made financial institutions pay for the new regulatory regime. The provision was stripped from the legislation, costing taxpayers $19 billion.
Gay-rights advocates should keep this scenario in mind as the Gang of Eight tries to push immigration reform through the Senate. Given that more than a quarter million undocumented immigrants are LGBT, the movement has a broad interest in seeing comprehensive reform with a path to citizenship succeed. But gay-rights supporters have also been pushing for a specific provision in the bill recognizing LGBT families, who under current law are ineligible for family-based immigration. President Obama's immigration proposal, released in February, contained such a provision. But few were surprised that the bill unveiled by the bipartisan group earlier this month contained a legalization program for the undocumented but made no mention of LGBT families. This is no doubt a shortcoming in the current proposal, and one that groups like Immigration Equality, which advocates on behalf of gay and HIV-positive immigrants, should fight to fix. Immigration Equality has already said that the current Senate bill "does not reflect the values or diversity of our country" and that "we are watching—and we will remember—which lawmakers stand with us, and which stand to the side, when this critical vote happens." The Human Rights Campaign and other prominent gay-rights groups have similarly condemned the current Senate bill.
At this point, it’s almost a yawn: The last and most Catholic New England State, tiny Rhode Island, population just over one million, passed marriage equality last week. Just nine years after Massachusetts set off moral panic nationwide and triggered the final wave of state constitutional amendments banning same-sex marriage, all of New England has now followed the Bay State’s lead. Rhode Island has recognized same-sex marriages performed in other states since 2010; nowhere were you more than an hour’s drive from a state where you could marry—the Ocean State is bordered by Massachusetts, Connecticut, and New York, all equal-marriage states.
As I sat in the press gallery off to the side of the Supreme Court yesterday morning, waiting for the justices to file in and begin hearing arguments about the constitutionality of the Defense of Marriage Act (DOMA), I had that sickly excited feeling that you get when the roller-coaster car is climbing the first hill. The day before was easier for me: I didn’t want the Court to take Perry, the Prop. 8 case, to begin with. I was relieved when very quickly we all could hear that the justices had no appetite for a broad ruling. But the DOMA case—and here please let me confess that I’m terribly human—the DOMA case is about my marriage. As regular readers will know, I’m married to my wife in Massachusetts, but because DOMA bars the federal government from recognizing same-sex marriages performed in the states, I’m not married in the United States. The justices were going to discuss whether to end that split identity. This morning, it was very personal again, as it hasn’t been in awhile.
By now you've heard from the various news sources that, in this week’s Supreme Court arguments on California's Proposition 8 and the Defense of Marriage Act, a majority of justices expressed skepticism over both. So it's imaginable—even probable, if you believe the news—that we will find ourselves at the end of June with DOMA in the junk pile and marriage equality back on the books in California.
This week, the Supreme Court will hear oral arguments in two landmark cases on the question of same-sex marriage, one about California's Proposition 8 and the other about the federal Defense of Marriage Act, which denies hundreds of federal benefits to legally married same-sex couples. The cases could go any of a number of ways, with many predicting that the Court will strike down DOMA but find some way to avoid saying that laws banning same-sex marriage in a particular state are unconstitutional. (Options include upholding Prop 8 and ruling that those defending the initiative have no legal standing to do so.) As usual, all eyes will be on Anthony Kennedy, presumed as always to be the swing justice whose opinion will determine the outcome.
Today, the Second Circuit Court of Appeals struck down a major part of the Defense of Marriage Act (DOMA). Since DOMA had already been held unconstitutional by the First Circuit, on one level this doesn't change anything, since the case was almost certainly headed to the Supreme Court anyway. But today's opinion is important because the theory underlying the court's holding goes much further than the First Circuit did.
This morning, the Supreme Court did not decide to take Perry v. Hollingsworth, the California Prop. 8 case. According to the conference schedule, the Justices were supposed to discuss it yesterday. They didn’t actively decline to take it; they could still make a decision to hear it in the months to come. But at least for today, no news is good news.
Oh, what excitement we’re having for a slow August! (One of my editors, frustrated that no one would return his calls, once called these two weeks “the dead of summer.”) First we learned that Representative Todd Akin believes women have magical powers to repel a rapist's sperm from our uteri—and the underlying ideas that, as Lindsay Beyerstein yesterday delineated so crisply, "forcible rape is the only real rape" and "women habitually lie about rape," which she notes are two sides of the same coin.
Last week, I laid out some of my ideas about what is and is not radical about same-sex marriage, boiling down a few of the chief concepts I've argued in public over the past 15 or so years. Maggie Gallagher, chief nemesis of the marriage-equality movement, referred to one of those three posts at The Corner, National Review's group blog. In response, I noted that we agree, in small part, that allowing same-sex pairs to marry continues to nudge the meaning of the institution in the direction of separating sex and diapers.
Late on Tuesday, when just about everyone had already left for their Fourth of July celebrations, the Department of Justice announced that it was asking the Supreme Court to take two DOMA lawsuits, promptly. The first was no surprise: You know that the First Circuit already, very cautiously, declared in the Massachusetts cases (Gill v. OPM) that DOMA’s Section 3 was unconstitutional. That’s the section that says that, for federal purposes, marriage is between one man and one woman—and therefore that the United States will refuse to recognize any state’s decision to marry same-sex pairs.
I’m married in Massachusetts. I’m not married in the United States. That paradox is untenable, the First Circuit Court of Appeals declared in May as it unanimously struck down Section 3 of the Defense of Marriage Act—the portion of the 1996 law stating that, for federal purposes, marriage is between a man and a woman. Most legal observers believe the Supreme Court will agree, and the feds will have to recognize my marriage. That would leave me almost fully married, but not quite: Thirty-eight states still ban recognition of same-sex marriages. So what’s the path to marriage equality nationwide?
Here’s some absurdly good news. As Garrett Epps told us, the Ninth Circuit yesterday decided to stand by its panel’s decision in the Prop 8 case and kick it upstairs to the Supremes. Maybe SCOTUS will refuse to take the case; that would be fabulous news, turning California immediately into a marriage-equality state without causing me any anxiety about someone up there writing a decision that leaves a bad precedent. But the good news is that the First Circuit’s nice, narrow ruling striking down DOMA’s section 3 will probably get there first.
You all have got to be tired by now of me celebrating good news for LGBT rights, bouncing around in my Tigger-y fashion, showing yet another way that we're winning. But I can't help it. As we've discussed, I grew up in the Pleistocene era, when you still had to look over your shoulder leaving a gay bar. Now I'm married to another woman, at least in the eyes of Massachusetts. It's crazy to live through so much social change in just a few decades. (A friend of mine says: "E.J., you sound like one of those older black folks who talk about how miraculous it is to no longer live under Jim Crow." Well, it's true! Being me is no longer a felony!)
One of the most striking examples of the progress made by supporters of gay and lesbian rights can be seen with respect to the odious Defense of Marriage Act. The bill, which denied federal marriage benefits to same-sex couples and allowed states not to recognize same-sex marriages valid in other states, had been signed by the second-most recent Democratic president after passing both the House and Senate by veto-proof margins. A little more than a decade later, President Obama—even before his recent announcement declaring support for marriage equality—had refused to defend the constitutionality of DOMA in court.