The following Op-Ed was written by Joe Mirabella. Joe Mirabella is a volunteer for Join the Impact as the Washington State Community Organizer. Mirabella is a full time writer and content developer for an online retailer. He is engaged to marry his partner of 5 1/2 years in their home state of Iowa.
The Obama Flip-Flop campaign was a creative attempt to convince Obama to instruct the Justice Department to refuse to defend the DOMA (Defense of Marriage Act) lawsuit started by GLAD. Presidents have the option to let lawsuits go through undefended when they believe they are unconstitutional. Both Clinton and Bush exercised this option. Unfortunately, the Justice Department released a 50 page brief today outlining the Obama administration’s defense of DOMA. Check out the AMERICAblog for their translation of the motion. (A copy of the brief is at the end of this post.) In the mean time let me summarize; it is not good. The Obama administration is attempting to diminish the two Supreme Court cases that most of our rights are based on, Loving vs Virginia and Lawrence vs Texas.
The LGBT community supported President Obama and his campaign with our money, our valuable time, and our votes. We believed the President when he promised us he was going to repeal DOMA, end Don’t Ask Don’t Tell, Pass the Employment Non Discrimination Act, support Hate Crimes Legislation, and more. We believed the President because he offered the country hope and our community needed hope more than any other community in America. We needed a friend in the White House who was willing to lead us through the civil rights movement of the century. We needed someone who was not going to stab us in the back.
Mr. President you flip-flopped. We should have known. You started your Presidency with one of the most anti-gay Pastors in the country giving your inaugural prayer, Rick Warren. You further hurt us by remaining silent on proposition 8. The one moment you mentioned our advances in Iowa and other states was in jest at the correspondence dinner. You asked the Supreme Court to ignore an appeal on Don’t Ask Don’t tell for “unit cohesion”. You did all these things and yet your promises remained on Whitehouse.gov (FYI his promise to repeal DOMA is no longer there.) Some of us still hoped, myself included, that you would do the right thing and not defend DOMA.
I no longer have hope for you President Obama. I no longer believe you are on my side. Your adminstration is using the arguments of our worst enemies to uphold laws that destroy our families. I should have known. I should not have been so enchanted by your beautiful speeches and colorful campaign posters. Mr. President you are no different than the rest. You used our community to get to the White House and now you have pushed us aside. This time is different though, because we won’t take it anymore!
I was once on the fence about the October march on Washington. It is clearer to me now more than ever we can not wait. We need to show up and stand up. We need to destroy our worst enemy — apathy. We need to mobilize our communities to fight locally and nationally. We need to demand that our leaders not only say they are going to protect our families, but they must prove it through action. Flowery speeches will no longeer woo us. Colorful posters are a red flag now. If you want the support of the LGBT community, you will have to earn it.
A group of leaders met this spring in Dallas to discuss the future of the LGBT civil rights movement. They developed a set of ideals that I think are a good start. They are called the Dallas Principles:
In order to achieve full civil rights now, we avow:
1.Full civil rights for lesbian, gay, bisexual and transgender individuals must be enacted now. Delay and excuses are no longer acceptable.
2.We will not leave any part of our community behind.
3.Separate is never equal.
4.Religious beliefs are not a basis upon which to affirm or deny civil rights.
5.The establishment and guardianship of full civil rights is a non-partisan issue.
6.Individual involvement and grassroots action are paramount to success and must be encouraged.
7.Success is measured by the civil rights we all achieve, not by words, access or money raised.
8.Those who seek our support are expected to commit to these principles.
We are in a fight for our lives. Maine needs our help to protect marriage from a voter initiative to overturn the recent gain there. Washington needs our help to protect Domestic Partnerships from a group of fundamentalists. Gays and lesbians are still being fired from their jobs because of who they were born to be. Children are being hurt as they are ripped from loving same-sex parent’s arms and returned to foster care systems. Our community continues to be violently attacked in hate motivated crimes. Obama reminded us today that we are the only ones we can depend on to fight for our rights. Apathy is no longer an option. Either stand up for yourself now or don’t be surprised when we are left with nothing.
Join the Impact will be launching several tools in the near future to help you fight for your rights. In the mean time volunteer your time locally, get ready to go to Washington DC, donate your money to LGBT causes, demand your representatives vote for your rights, talk to people about our issues, and most importantly do not give up.
When Obama became President, he asked us to hold his feet to the fire when he was letting us down. Mr. President, you let me down. Join me by telling the president he let you down by twittering the president @barackobama with the tag #promise
It is no longer okay for our elected leaders to take advantage of us. If you want our support, you will have to earn it through action. You better start now, because we are watching.
6 Responses
[...] Obama defends DOMA, we defend our families In LGBT, LGBT Equality, Same-sex marriage, civil rights, gay marraige, law, marriage eqaulity, news, politics on June 12, 2009 at 11:20 am The following was originally published on Jointheimpact.com [...]
Posted on June 12th, 2009 at 1:24 pm
[...] Mirabella, in “Obama defends DOMA, we defend our families,” writes, Mr. President you flip-flopped. We should have known. You started your [...]
Posted on June 12th, 2009 at 3:58 pm
[...] Joe Mirabella @ Join the Impact: Obama defends DOMA, we defend our families [...]
Posted on June 12th, 2009 at 4:14 pm
Thank you, Joe. You have eloquently expressed what many of us are feeling.
Posted on June 12th, 2009 at 6:52 pm
I suppose those of us who don’t tweeter should… write?
I’m not as bothered by this per se as I am by the fact that Obama has said and done almost nothing to support us since he got elected.
When mayor Michael Bloomburg in New York City authorized an appeal of a same sex marriage decision (and he won…), a lot of people were angry at him, too, but he at least tried to explain himself and say that he still supports same sex marriage. (He didn’t have much of a choice because he was scheduled to speak in front of a gay audience hours later, but at least he showed up to be booed.)
Now, several days later, I’m still waiting to hear from President Obama.
Posted on June 14th, 2009 at 10:25 pm
Quote: “This case does not call upon the Court to pass judgment, however, on the legal or moral right of same-sex couples, such as plaintiffs here, to be married. Plaintiffs are married, and their challenge to the federal Defense of Marriage Act (”DOMA”) poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by States that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits.”
Let’s ignore for a second what Obama has and hasn’t done with regards to any of these issues. If we’re just going to talk about the legal argument at hand, you should probably read it before you go making sweeping claims like “Your adminstration is using the arguments of our worst enemies to uphold laws that destroy our families.” If you actually read the brief, you’ll see that the arguments for rejection of the lawsuit, in simple English, are as follows:
1. Removing a case from state to federal court doesn’t provide broader jurisdiction to make claims, and the US Federal Government was immune from suit already in state court.
2. They can’t claim any specific rights that have been denied to them by another state or by the Federal government, so they lack the standing to sue. (In the US legal system, you must file suit because of specific wrongdoing, not an abstract injustice).
3. The Federal government does not regulate marriage, or provide certification for it in any way. Because it is regulated by the states, there is no basis for claiming it is a fundamental right. And while the FG does provide certain benefits associated with marriage, courts have never found that such benefits can be classified as rights.
4. The US has long only recognized heterosexual marriage, therefore, DOMA is more a preservation of the status quo than a regression - something that the history of 14th Amendment jurisprudence allows for (incremental change rather than a demand for total, instant reform.
5. Marriage is not classified as a form of expression, and therefore does not fall under the 1st Amendment, and marriage does not fall under the right to privacy, because it is not recognized as a fundamental right.
If you look at the various claims, 1 and 2 are pretty mundane, and completely not related to the legitimacy of the cause as a whole. 3 may seem like it on-face denies the idea that marriage is a right, but it only acknowledges that the history of US law does not recognize it as a right. If we’re just talking about how courts have interpreted the burden of the Federal Government, and how the law is written, this is also not an unreasonable claim. 5 may also rub the wrong way, but when I get to 4, you’ll understand why I don’t think this is a colossal betrayal or some such. It’s because this motion to dismiss is denying that the claim that marriage is a 1st amendment right or a fundamental right covered by the “penumbra of privacy.”
But what it’s NOT doing, and this is absolutely critical, is denying the equal-protection claim on face.
Quote: “Congress is entitled under the Constitution to address issues of social reform on a piecemeal, or incremental, basis. It was therefore permitted to maintain the unique privileges it has afforded to this one relationship without immediately extending the same privileges, and scarce government resources, to new forms of marriage that States have only recently begun to recognize. Its cautious decision simply to maintain the federal status quo while preserving the ability of States to experiment with new definitions of marriage is entirely rational. Congress may subsequently decide to extend federal benefits to same-sex marriages, but its decision to reserve judgment on the question does not render any differences in the availability of federal benefits irrational or unconstitutional.”
The argumentation acknowledges that the reform is an issue, critically, and simply maintains a right to finish reform piece by piece (a thoroughly mainstream view of 14th amendment jurisprudence, even if it understandably sounds like total bullshit to social reformers and activists). The only part of it I found to be especially problematic (from a PURELY LEGAL, not a moral or an ethical standpoint), is refusing to argue whether sexual orientation constitutes a “suspect classification,” or a category of people who
1. are a “discrete” or “insular” minority who
2. possess an immutable trait,
3. share a history of discrimination, and
4. are powerless to protect themselves via the political process.
(via Wikipedia). That is the portion of this brief we should be shouting about.
All that other stuff, from child marriage to incest, was NOT AFFIRMING THOSE CLAIMS. It was attempting to prove the rational-basis test that I mentioned before, that there is “any reasonably conceivable set of facts that could provide a rational basis for it.” I disagree very strongly with this argument, because I feel that homosexuality is a “suspect classification” that deserves strict scrutiny, which is a much more in-depth analysis (as opposed to a rational basis test).
But like it or not, it is NOT defined as such by the judicial history, and overcoming judicial deference to precedents is not an easy task. It’s certainly not going to happen because of a case where the plaintiffs have a very shaky claim even to a basic presumption of standing to file suit. We need a case to win the war, and THIS IS NOT IT.
What’s more, the #3 that i was talking about is implying, rather strongly, that there is a legitimate reason to believe marriage equality to be an important goal, and demanded by the 14th amendment. The response that the brief is making is an IRRESPONSIBLE claim (that the government does not have a responsibility to immediately make things better), but not reprehensible (that marriage equality is a bad or immoral, or that the fight for equality should not fall under the 14th amendment, which would be almost as bad.) For reference, the “privileges and immunities” clause of the 14th Amendment:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The message that I’m getting from this brief is not “BACK, queer!” it’s “This case isn’t the best case, wink wink, nudge nudge, (go for the equal protection argument!), let’s talk about this later.” It’s no Scalia-esque insistence that homosexuality is immoral. So I just wanted to correct the record.
And, ultimately, I think the legislative route is where we need to end up. Take a read of The Hollow Hope: Can Courts Bring About Social Change? by Gerald Rosenberg. It points out a lot of the structural problems in mobilizing real change through the courts.
Posted on September 24th, 2009 at 8:01 pm
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