In a brief and perfunctory prepared statement, read carefully from a script, President Obama just signed an order a presidential memorandum directing federal departments to grant some benefits to employees’ same-sex partners requesting federal departments to review over the next 90 days whether they can grant some benefits to employees’ same-sex partners under federal law. The presidential memorandum itself is here. The new benefits would include things like sick leave for partners, the use of medical facilities, access to long-term care benefits, and instruction in foreign languages, if such benefits are otherwise available to spouses.
Federal law (5 USC 8901) blocks the Office of Personnel Management from granting same-sex couples the most important things — like health benefits. Broader relief will come only through the repeal of DOMA or, for federal employees specifically, through the proposed Domestic Partners Benefits and Obligations Act. Obama reiterated that he supports both goals. He also promised that he will work “tirelessly” in the “days and years to come” to achieve them. A few days ago, Obama’s liaison to the gay community said that action on anything significant is a long way off.
Interestingly, Obama’s rhetoric was at odds with his own Justice Department’s brief, filed late last week, defending the constitutionality of DOMA. Obama called DOMA “discriminatory,” though he never said on what grounds he thinks it’s discriminatory. His DOJ last week maintained that DOMA doesn’t discriminate based on sexual orientation or sex, the two most obvious ways in which one might think it discriminatory. I may have missed it, but Obama never used the words “gay” or “lesbian” or “gay couples/families,” only the more neutral and palatable “same-sex partners” and the esoteric “LGBT.”
Obama also asserted that DOMA “interferes with states’ rights,” presumably because it changes the historical rule that federal benefits to spouses are available based on a state’s own definition of marriage. This allowed states to define marriage for themselves, even if other states define it differently. But last week, the DOJ remarkably asserted that when it comes to same-sex marriages — and such marriages alone — the usual federal presumption means that objecting states would be forced to subsidize gay unions in other states. In other words, the DOJ argued that respecting “states’ rights” means not recognizing gay marriages under state law.
The DOJ brief has been subjected to intense criticism over the past few days. But Obama made no mention of that squalid document in his statement today. Will it be withdrawn or modified?
With his back-pedalling on DADT, no action on DOMA, nothing done to lift the HIV travel ban, nothing ventured to allow same-sex partners to immigrate, and employment protection and even a useless hate crimes bill stalled in an overwhelmingly Democratic Congress, lots of Obama’s strong gay-rights supporters are becoming restive. Obama has been neither the moral nor the political leader they expected. It’s still early and he’s had a lot on his plate. But presidents always have more pressing matters to attend. And if history is any guide, he’s now at the height of his political power. Today’s action was, it seems, the least he could do.
UPDATE: Nan Hunter has a typically smart post on the president’s action today. It’s basically a bare-bones instruction to executive departments to take action in the future. Could have been issued months ago, but it’s timed to throw a sop to some upset supporters.
Randy R. says:
“Federal law blocks the Office of Personnel Management from granting same-sex couples the most important things — like health benefits. ”
Actually, some lawyers argue that this is not true. From Americablog:
“I’ve talked to several gay lawyers, including Richard Socarides who worked in the White House, and they say that it is patently untrue that DOMA prevents gay federal employees, or anyone else, from getting health benefits. President Obama could have granted full health benefits to domestic partners – not to spouses, not based on civil unions, but to “domestic partners” – and DOMA would not have prevented it, according to the lawyers I’ve spoken with. Here’s why: DOMA prohibits granting benefits based on marriage, it does not prohibit granting benefits overall. Thus, you define a standard that isn’t marriage, such as domestic partnerships as defined by, say, the amount of time spent dating, living together, comingling funds, etc. Had Obama simply said we will give health benefits to the domestic partners, straight and gay, of all federal employees, and given a definition of domestic partner that does not include marriage of civil unions, he could have done it.”
DC: Federal agencies are limited to providing health benefits to
June 17, 2009, 7:29 pmLior says:
Conceivably Obama considers DOMA discriminatory in the everyday sense (the issue in any public policy debate) but nevertheless not “un-Constitutionally discriminatory” (the proper framing of the issue before the Federal court).
DC: Certainly there
June 17, 2009, 7:44 pmAJK says:
What is this HIV travel ban of which you speak?
June 17, 2009, 7:55 pmEdward A. Hoffman says:
The two would only be “at odds” if Obama had said that DOMA was unconstitutional. There’s no contradiction in opposing a law one believes to be constitutional.
DC: See above.
June 17, 2009, 8:03 pmPGofHSM says:
I have to say that the citations to Richard Socarides, whose position in the Clinton Administration was not a legal one, and who has offered no explanations (so far as I know) of WTF was up with Clinton’s signing DOMA in the first place, don’t strike me as very persuasive.
Also, if Obama began extending health benefits based on the amount of time spent living together and commingling of funds, I’m totally moving back in with my college friend who works at State. Sure, neither of is gay, but so long as the government doesn’t check on where we sleep (or with whom else we might be sleeping), health benefits without legal commitment, squee!
At the point that Obama gives benefits to couples who *could* get married and don’t, the anti-SSM brigade actually will have a rational argument for how marriage is being diluted.
June 17, 2009, 8:06 pmrosetta's stones says:
Holder throws another constituency under the bus.
That bus’s axle is gonna break, in a minute here.
June 17, 2009, 8:06 pmPGofHSM says:
Also, re: this meme that the president must personally agree with everything stated by his DOJ: Bush signed McCain-Feingold *saying* that he thought some of it was unconstitutional but that the Supreme Court would clear that up. He then sent Ted Olson to argue for the constitutionality of the whole thing in McConnell v. FEC (while Ken Starr argued for the unconstitutionality). It is not some innovation on Obama’s part to have his DOJ defend the constitutionality of a law with which he disagrees. Sheesh.
June 17, 2009, 8:08 pmJCC says:
Well, if it’s so squalid… can we get some discussion on the merits? Emotional outrage doesn’t count as a response here.
June 17, 2009, 8:10 pmCornellian says:
This is a baby step positively Clintonian in its timidity and rushed out only when big name gay donors started bailing on a $1,000 a plate fundraiser. Count me unimpressed.
June 17, 2009, 8:12 pmresh says:
Spot on, Cornellian. Barney Frank had Obama by the balls, so to speak, if only for a moment, and needed to not walk away empty handed. Gay cash is gold.
June 17, 2009, 8:34 pmConstantin says:
Obama has been neither the moral nor the political leader they expected.
I don’t think this view is limited to gay Americans. I’m sure the AmeriCorps IG, much of Israel, Muslim women stuck in veils by threats of death, and about sixty million Iranians would agree.
Being president is a hard job. But when you say you’re going to waltz in and make everything better almost solely because of your staggering intelligence and hypnotic charisma and majestic bearing, people expect a little more than the usual log rolling.
June 17, 2009, 8:44 pmSteve says:
It is not some innovation on Obama’s part to have his DOJ defend the constitutionality of a law with which he disagrees.
No, it is not an innovation, but it was a choice, just like Bush had a choice about how to handle McCain-Feingold. Bush wasn’t opposed enough to the law to fight it any more than he did. If I hated McCain-Feingold, I could certainly be upset with Bush for defending its constitutionality in court.
June 17, 2009, 8:48 pmRandy R. says:
PGOF: “Sure, neither of is gay, but so long as the government doesn’t check on where we sleep (or with whom else we might be sleeping), health benefits without legal commitment, squee!”
Which, of course, is one of the main reasons why domestic partners is a poor substitute for SSM. People often often ask, if civil unions or domestic partnerships offer all the same benefits of marriage, why do you gays want marriage? Your argument is therefore a strong rebuke.
Make it simple: Marriage for all, and get rid of DPs and civil unions. That way, it avoids the exact issue you raise.
Steve: :No, it is not an innovation, but it was a choice:
“Xactly. And he didn’t have to raise specious arguments, like SSM will cost money, so it’s reasonable for the gov’t to ban it. (Note: The Congressional Budget Office did a report that stated that SSM will result in a net gain to the US treasury). Additionally, they didn’t have to cite to decades old case law that referenced incest and pedophilia. That’s just insulting, and why we view it as a squalid document.
AJK: “What is this HIV travel ban of which you speak?”
If you are HIV poz and wish to travel to the US, you are banned from the country. The US is alone among almost all other countries in this respect. IT’s a holdover from when Jesse Helms was Chair of the Foreign Relations Committee and wanted to make life as difficult as possible for gays.
June 17, 2009, 9:01 pmJohnO says:
What’s inconsistent about defending a law you believe is constitutional while being committed to its repeal?
June 17, 2009, 9:11 pmAJK says:
I’m having trouble seeing how this is either a problem or a gay rights issue?
June 17, 2009, 9:13 pmDanny says:
I think two things happened.
1. If the brief had just said “we are defending the law as it is” without further explanation or just technical legal justifications, probably there would have been no reaction. But it went much further than necessary and was viewed as gratuitously insulting.
2. It was the last straw with Obama. This had been building up for a while. So moderate, so cautious, so gradualist on so many issues he finally tipped into being viewed as such a pussy or possibly even complicit with everything he campaigned against.
I am offended by Obama, but my feeling is actually now mostly one of relief. I no longer suspect, but I know I am dealing with a weasel. I no longer feel forced to hold my nose and vote for the Democrats – I now can have NOTHING do with them. I feel like a true independent now, a genuine second class citizen and
June 17, 2009, 9:35 pmAJK says:
Yeah, that’ll show them.
June 17, 2009, 9:41 pmCornellian says:
I no longer suspect, but I know I am dealing with a weasel. I no longer feel forced to hold my nose and vote for the Democrats – I now can have NOTHING do with them.
I’m somewhat more forgiving in that I think Obama really does support equal rights for gay people, I just don’t think he or anyone around him feels any urgency to act on that sentiment. It’s just not a major priority with them. It’s possible that will change over time. I wasn’t a Democrat to begin with, which probably is part of the reason I’m not as disappointed as you are.
June 17, 2009, 9:42 pmRandy R. says:
1. IT’s a gay rights issue because Jesse Helme made is a gay rights issue. He wanted to keep ‘the gays’ out of the US. That was his stated purpose. Secondly, many (but not all) people who are HIV poz are in fact gay.
2. It’s a problem because there is no reason to single out HIV poz for an absolute ban. There are many other communicable disease out there, many that are even sexually transmitted, but none of them trigger a ban. If you think we should keep people out of the country who have any STD, then at least that would be consistent.
3. Just last week, several AIDS researchers from Canada were banned from attending an AIDS conference in the US because they were poz. They couldn’t even be here for the conference. What could possibly be the benefit in keeping people out of the country who might actually help us deal with it?
4. Many gay people have partners in other countries, and those partner are poz. This ban means that either the US citizen must move to the other country, or they break up the relationship. (It’s rather difficult to commit to a lifelong union when the couple live on different continents).
5. Any child who is HIV is prohibited from being adopted into a US family. Not necessarily a gay issue, but it’s a problem nonetheless.
June 17, 2009, 9:42 pmDanny says:
Well that’s the irony. Bush was an idiot, he had positively wicked ideas, but one thing he was not was a narcissist. He had a destructive agenda but he applied it ruthlessly and according to his own principles, with little vanity concerning his poll numbers.
June 17, 2009, 9:45 pmcmr says:
The only reason people say that is because it made official most of the secular anti-gay-marriage arguments gay marriage supporters have poo-pooed for years. When their guy makes those arguments, it’s “insulting” but really, it’s just they see gay marriage isn’t going to be easily implemented as they think.
This is pure crap, to be frank. He’s the freaking leader of the free world. Why should he waste his time alienating people so 1/3 of 3% can call their relationship married?
June 17, 2009, 9:46 pmDanny says:
Even if neither is HIV positive, you still face the same choice – no immigration benefits for a foreign boyfriend or spouse. That’s how I ended up in Europe
June 17, 2009, 9:46 pmJDS says:
I wish my girlfriend and I could get benefits like that without having to file married joint or separate federal tax returns! What a deal!
June 17, 2009, 9:50 pmcmr says:
Randy R.
So it’s enough of the gay community for it to be a “gay issue” to the extent that we feel sorry for them and they get to be victims, but it’s not enough of a gay issue that they deserve any criticism for fostering a culture of promiscuity and unprotected sex? OK.
June 17, 2009, 9:51 pmDanny says:
Obama was raised by an agnostic woman and he publicly supported same-sex marriage in the 1990s when no one did. It’s the hypocrisy – he’s not a Republican or Christian right guy who would actually believe this stuff. He’s thinking about his poll numbers that’s all. That’s why it’s more infuriating to get cowardice from Democrats than open, nasty but honest bigotry from Republicans
June 17, 2009, 9:52 pmDanny says:
But it’s not limited to gay issues. On health care, on Iraq, on the torture issue, on the bail-out with blank checks to the banks, he is starting to look like a pussy to the left. The gay issue adds a lot to that narrative
June 17, 2009, 10:08 pmMarkField says:
If I ran the Justice Department (paging Dr. Seuss), I’d take the view that every Administration is bound by the “faithfully execute” clause to provide a defense for all laws. Within that constraint, though, I see no problem with (a) an Administration telling the court that it believes the law is unconstitutional; and (b) refusing to make weak or immoral arguments.
June 17, 2009, 10:25 pmVolokh Groupie says:
I understand you need political capital to pass less favored legislation like that on healthcare but I truly hope that Obama isn’t treating gay rights’ issues as an afterthought because of potential negative repercussions on his poll numbers.
First, the poll numbers aren’t that anti gay marriage and tend to be favorable towards a number of other gay rights’ issues. It’s not obvious to me that it would cost Obama that much political capital. Public Opinion Graph on Gay Right issues
Secondly, if Obama doesn’t want to ‘waste’ political capital on gay issues at a time when he has approval ratings in the 60′s and significant majorities in both chambers of congress when will he? If history holds true we’ll probably see both the dem majorities and his poll numbers regress to ~50%. Doesn’t it make it even more likely that that this ‘wasting political capital’ argument will be even more applicable then? Will these issues be too costly then because of the capital needed for a second SCOTUS nomination or action on global warming?
Finally, a number of these issues are about pretty basic rights for a discriminated against minority. Even if you want to hedge on the issue of marriage, I don’t understand the hold up on other issues. Those more basic issues should be higher up on a list of priorities than they appear to be because of their fundamental nature.
June 17, 2009, 10:34 pmDanny says:
I know – we still have no law against paying gays less than straights – while Bulgaria does.
June 17, 2009, 10:38 pmShelbyC says:
Well,we have no law against paying blondes less than redheads either…
June 17, 2009, 11:03 pmBruce Hayden says:
I am not quite all the way to backing gay marriage yet, but I think it absurd that the government discriminates this way. Why should married people essentially get more for doing the same job with the government? And why not give the benefits?
June 17, 2009, 11:08 pmDanny says:
Exactly. I think we can agree that if two human beings are going the same exact job with the same quality, they should be paid the same number of dollars / euros / whatever. The only thing blocking this principle is people’s stupid excuses to discriminate – race, gender, whatever. If employers had picked hair color as a reason to pay some people less then we would need a law. Employers are after a buck and they will take any excuse to exploit people that they can find. We come up with pay discrimination laws to thwart this impulse of theirs. Gays are still left out of the umbrella.
June 17, 2009, 11:19 pmDanny says:
going = doing, I meant to say
June 17, 2009, 11:20 pmShelbyC says:
I’m not sure I understand. Aren’t tbey motivated to pay everyone less equally? I’m not sure why anyone would pay someone more just because they’re straight. And whay should the threshold be to being included under the “umbrella”? Do you know of any evidence of gay folks being systematically payed less?
June 17, 2009, 11:25 pmDanny says:
Yeah – I got paid $9 / hour versus $12 / hour for straight people in my first job. Basically everyone started at $9 and then within the first weeks everyone who was straight got a promotion, gays no. They knew they were straight because if you spend weeks next to a straight guy he will talk about his girlfriend and/or kids so he gets the promotion, a gay won’t. The boss told me he had limited resources and so had to give more to families or people who could have a family one day.
June 17, 2009, 11:31 pmDavid Hardy says:
In my bureaucratic days (1980s) I was told there was a specific procedure for Justice to follow if it did not wish to defend — it involved notice to both Judiciary Committees, as I recall. I don’t recall if that was statute or Justice regulation, and it might have been changed since, but at least back then Justice did not have to defend any statute or administrative action.
(It came to my attention because Justice threatened to refuse to defend one of my agency’s actions. We called their bluff and, in fact, won the case on the merits).
June 17, 2009, 11:32 pmPutting Two and Two... says:
Except that this baby step has been in the works for months, no doubt with a delivery date of now, in the middle of Gay Pride month.
But don’t let reality get in the way of scoring some political point.
June 17, 2009, 11:41 pmShelbyC says:
Danny, wow. Amazing a guy like that could stay in business
June 17, 2009, 11:46 pmOren says:
It would require a proper attitude of deference to Congress as being responsible for such general policy. For a President to acknowledge this would be the end of the pretension to an imperial presidency.
We can’t have that, now can we?
June 17, 2009, 11:55 pmStephen Clark says:
Well, I was one of Obama’s strong gay-rights supporters, and I’ll go further than Dale. The brief was a betrayal, and today’s insulting crumbs don’t begin to undo it.
As one commenter pointed out, Obama only said that DOMA is “discriminatory,” not that it is “unconstitutional.” For me, it is absolutely unacceptable for a progressive president to believe that sexual orientation-based classifications are not entitled to heightened scrutiny under the Equal Protection Clause, as the DOJ argued.
If Obama has said DOMA was “unconstitutional,” he would have gone far toward healing the breach. But he didn’t. Harmonizing the brief with his public statement, he believes that massively discriminating against gay people–to the tune of a thousand legal rigts and benefits–is perfectly constitutional. That is appalling.
June 17, 2009, 11:56 pmOren says:
These two sentences don’t go together — political capital has nothing to do with poll numbers and everything to do with swing votes on various matters. It has to do with how much the members of your coalition will tolerate it.
As it stands, there are far too many vulnerable Dems from swing districts/States to force them to vote on repealing DOMA. If they vote for repeal, they will lose the general and if they vote to uphold, they will be savaged in the primary and then lose in the general. Jim Webb, John Tester — these are the guys that have the most to fear here.
June 17, 2009, 11:59 pmOren says:
Appalling, maybe, but also true. For 100 years the appalling institution of slavery was, as you put it, “perfectly” constitutional. A President that stood up in 1820 and said “I oppose slavery but I have no right to march into Georgia and free the slaves” would be just as right then as Obama is today in saying that only Congress, if it wills, can repeal DOMA.
The Constitution expressly allows for all manner of abominable, appalling and downright evil things. It is assumed that when those things happen, we will elect a Congress that will fix things. If you have ire, direct it at them ( I suppose this is the downside of being the Imperial President — somehow everyone imagines that you can fix their problems).
June 18, 2009, 12:03 amDanny says:
I know! What an a**hole. Anyway thanks for recognizing it
June 18, 2009, 12:17 amJCC says:
Stephen Clark wrote:
Well, according to Baker v. Nelson, they aren’t. You want to argue to overturn that precedent then fine… but you need to come up with something more persuasive than “I’m pissed”.
June 18, 2009, 12:21 amBrian G says:
Let’s look at the realities. Blacks and gays pretty much universally voted for Obama. Blacks vote overwhelmingly against gay marriage. There are millions more blacks who vote than there are gays. And that’s that.
Look, DADT is a joke, and I say that as an “evil” right-wing Republican. I appreciate anyone who voluntarily wants to defend me, my family, and my country, and I don’t care one whit about who they choose to love. If Obama and the Democratic Congress really wanted to, they could end DADT right now. That they refuse to should tell you all you need to know.
Of course, the gay communtiy will run to the polls to vote for Dems in 2010 and Obama again in 2012, and they know it. So why should they care about what the gay community wants?
June 18, 2009, 1:34 amCornellian says:
Blacks and gays pretty much universally voted for Obama. Blacks vote overwhelmingly against gay marriage. There are millions more blacks who vote than there are gays. And that’s that.
If Blacks based their votes on the same-sex marriage issue they’d be 90-10 Republicans instead of 90-10 Democrats. But they’re not and they don’t.
June 18, 2009, 1:45 amCornellian says:
Of course, the gay communtiy will run to the polls to vote for Dems in 2010 and Obama again in 2012, and they know it. So why should they care about what the gay community wants?
Because in between elections they have fund raisers, and just because a voter doesn’t see any better alternatives doesn’t mean he’ll show up to vote.
June 18, 2009, 1:47 amCornellian says:
Why should he waste his time alienating people so 1/3 of 3% can call their relationship married?
Jews are only about 3% of the population – should a President care what Jewish people think?
June 18, 2009, 1:50 amVolokh Groupie says:
You’re right that swing votes weigh heavily in discussions of ‘political capital’ but saying that poll numbers have nothing to do with capital is a bit of an exaggeration. With his personal popularity Obama is a pretty big boon for any politician fighting a tough reelection fight and votes on a few gay rights issues probably can be offset by some of the advantages his support gives. In any event there are two things that come to mind in your discussion of vulnerable swing staters. Webb and Tester are both 2012 senators so they’re a bit off. However, there are other senators like Bennet and Lincoln (and a bunch of reps) who probably fit your point. However, in the house I think to a certain extent that such votes can probably be offset by Obama’s popularity and the advantage in the senate is so great that once Franken gets seated and once you count a couple non dem votes you can peel off (like Snowe/Collins/Lieberman) you still probably have enough votes to stave off a filibuster.
More importantly though is that we’re not talking about a gay marriage vote or even necessarily a full scale repeal of DOMA. Amending DOMA to allow full spousal benefits is a less politically contentious (according to the polling) act and is a pretty basic and overdue step in my view. I remember Dodd saying something about it when he was campaigning and I don’t see why steps like that can’t be taken as they probably won’t exhaust Obama’s political capital (and don’t have the same effect on senators/reps as gay marriage/wholescale repeal of DOMA) and yet still would yield important improvements.
June 18, 2009, 2:18 amPerseus says:
Jews are only about 3% of the population – should a President care what Jewish people think?
“F*ck the Jews! They didn’t vote for us.”–(allegedly) James A. Baker.
June 18, 2009, 3:57 amRicardo says:
So it’s enough of the gay community for it to be a “gay issue” to the extent that we feel sorry for them and they get to be victims, but it’s not enough of a gay issue that they deserve any criticism for fostering a culture of promiscuity and unprotected sex? OK.
Let us know when you tire of beating up straw men. Or can you point to a specific individual who holds both views at the same time? Dan Savage — a very popular gay sex columnist — for instance, does consider HIV a predominantly gay issue and does criticize promiscuous sex within the gay community. Here’s a quote:
June 18, 2009, 6:32 amLior says:
Prof. Carpenter: Perhaps I’m completely confused, but if so please correct my misunderstandings.
I don’t think anyone disputes the fact that DOMA has a disparate impact on gays, especially since that is the stated legislative intent. In that sense it is discriminatory. However, as far as I can tell that has not been the constitutional question, since sexual orientation has not been considered a division along which it is constitutionally prohibited to discriminate.
Rather, the legal dispute is whether DOMA is sex-based discrimination, which is an implicit backdrop against which we should read the DOJ brief. It is against that backdrop that the DOJ makes its argument that “you may only marry someone of the opposite sex” is not discriminatory. Whatever else we may say DOMA obviously applies to men and women in the same way.
Believing at the same time that DOMA has disparate impact on gays, but is not discriminatory as a matter of logic in a context where only sex-based discrimination is cognizable is not inconsistent.
—————-
I don’t have a strong opinion on whether DOMA is in fact constitutional or not. It’s a complicated question of constitutional interpretation (does the constitution prohibit discrimination against gays? is the fundamental right the “right to marry” or the “right to marry Jane Doe”?). I do have strong opinions on its (lack of) wisdom, but this is a separate question.
June 18, 2009, 7:01 amReality says:
I am so sick of Americans and their sense of entitlement. I am also growing very tired of gays and their silly demands that straight people unquestioningly accept everything about their lifestyles. They don’t get it. Obama’s giving them exactly what they want: the government stays out of their lives and their bedrooms. He just granted the partners of gay federal employees benefits. But that’s not enough for them. Maybe they don’t know (or care to know, as this would make their demands untenable) that straight federal employees may get benefits for their domestic partners, but they must pay full price for them; there is no government sharing of the cost.
Maybe when gays grow up and stop acting like petulant children they will be taken more seriously. As for gay marriage, they must accept that there have been 30 state referenda on this issue and they have all been overwhelmingly rejected by the voters. Rejected not just by whacked right-wing Christian soldiers, but by mainstream American and even a significant number of gays. Let them have a ceremony and call themselves “married” if they desire and certainly they must be granted some basic rights in regard to the legal aspects of their relationship. But stop asking the rest of the world to recognize such unions as marriages. The institution of marriage pre-dates history and it’s ridiculous to demand that mankind redefine it just for a distinct minority.
June 18, 2009, 7:15 amgeokstr says:
I started my career in the early 70s with a highly respected company, one that makes the “top 10 companies to work/sell for” and “best product in its industry”, with the best management ratings and the highest financial ratings in its field, in every year the studies/polls have been done.
Back then I heard the same reason when they gave smaller raises to single people vs married people, and this was long before gay even became an issue.
This “people who could have a family one day” excuse though is a new one on me.
June 18, 2009, 7:35 amLior says:
Reality: what is it about the gay “lifestyle” is you are being forced to accept against your will?
That is exists?
You may not want to treat gay domestic partnerships like straight marriages. Where gay marriage is legal, I don’t either. Here, however, society has forced gays who are in marriage-like relationships into domestic partnership rather than letting them marry. Given that, society can’t turn around and claim that these people freely chose to forebear marriage and hence don’t deserve the benefits. Gay and straight and domestic partnerships are simply not the same.
By the way, Jews in the US are a smaller minority than gays. If the voters overwhelmingly voted not to recognize Jewish marriages, would you also suggest we accede to the wishes of the majority?
June 18, 2009, 7:44 amDaniel Chapman says:
Lior: You seem to have completely missed your opponent’s arguments. It’s been a pretty public debate for quite a while now. Try to keep up.
June 18, 2009, 7:49 amLior says:
Daniel: Indeed Obama’s DOJ is arguing that DOMA does not facially discriminate based on sexual orientation and I retract my claim in that regard. Still, I think it’s consistent for them to argue in the courts that DOMA is constitutional and in Congress that it’s bad law.
June 18, 2009, 8:11 amrick.felt says:
What a suprise: of all the things that Obama could be doing for gay rights, including pushing to repeal DoMA and end DADT, he chose… something that involves the government spending money. Why, I am the picture of surprise. If you folks really want gay marriage to happen, just tell Obama that he’ll get to spend $50,000,000,000 on stimulus for gay wedding planners if it gets legalized.
June 18, 2009, 8:44 amsham-wow says:
I know a guy (a consenting adult) who whould like to marry his sister (another consenting adult).
They have a gay cousin (a consenting adult) who would like to marry his gay brother (also a consenting adult).
Can they all get benefits too?
Or has the progressive movement not yet begun fighting to undo this anachronistic taboo?
C’mon, they’re all consenting adults, right? And the two gay brothers can’t procreate with each other, so no risk of incest-related birth defects.
So what’s the problem?
June 18, 2009, 8:57 amgeokstr says:
First of all, your numbers don’t work:
Jews 2.2% Jewish Population of the United States by State
GLBT 1.51% Composite U.S. Demographics
Secondly, Jewish GLBTs are already prohibited from marrying.
June 18, 2009, 8:57 amrarango says:
At the risk of being overly cynical, and strictly from a vote counting political standpoint, Obama can throw Gay Americans under the bus. Who else are they going to vote for? He’s flush in cash, and doesnt really need them. Seems to me he risks antagonizing bigger voting blocs if he comes out too strongly in favor of Gay Issues.
While I am not an Obama supporter, I thought his election might at least help Gay relationships to become more mainstream and give them the legal status they deserve, but that doesnt appear its going to happen anytime soon.
My thought is to approach this issue from the standpoint of a chicago alderman–who can deliver the most votes? Obama is simply a cheap chicago-style politician–Isnt that obvious now?
June 18, 2009, 8:58 amrick.felt says:
Obama promised a great deal during the campaign. McCain generally attacked the substance of the pledges. At the time, I though McCain was missing a good attack angle, and I think Obama’s tenure so far has revealed a glaring hole in McCain’s campaign strategy.
Obama had been a United States Senator since January of 2005. Since January of 2007, his party enjoyed a majority in both the House and Senate. If there were things that Obama wanted to accomplish legislatively as President, why didn’t he introduce those bills himself while he was a Senator? Sure, his bills might not have gone anywhere in the GOP-controlled Senate, but that excuse vanished as of January of 2007. Bush still stood in the way from that point forward, but if DoMA is so unfair, and the present is imbued with such “fierce moral urgency,” then pass the damn bill and dare Bush to be on the wrong side of history by vetoing it. On other issues, how about showing the public examples of the kind of legislation that you’d want Congress to pass when you’re president? No? You’d rather avoid controversy? That’s what I thought.
If you couldn’t tell during the campaign that this was going to happen if Obama was elected, you started to see it in the transition. You’ll recall that Obama quickly resigned his Senate seat after the election. Normally I might not think anything of it, but this was no ordinary lame-duck period. The auto-industry bailouts were being debated in Congress, and we had the bizarre spectacle of Obama urging Congress to take certain actions after giving up the opportunity to vote to help craft the bills he wanted to at least push the bills he wanted through.
I do think, though, that Obama will come through for gays if he wins a second term. The man is obsessed with his popularity, and was already talking about his second term on election night. I still believe that he’s very liberal, but I also don’t think that he’ll ever do much to jeopardize his re-election.
June 18, 2009, 9:04 amrarango says:
Rick felt: I generally agree, except for this–Obama is a lame duck in his second term, and the congressional dems start bailing out. Look at how Bush spent his “political capital” on the social security issue. I didnt see a lot of republican support for that issue.
June 18, 2009, 9:09 amZoe E Brain says:
June 18, 2009, 9:16 amgeokstr says:
No, we don’t all necessarily agree.
It boils down to how to define and measure what the “…same exact job with the same quality…” means. If you define it only as the exact same amount and quality of output, without taking into account lots of intangibles, then that’s a prescription for stupid personnel decisions. How well does that person get along with superiors, peers and subordinates? How presentable is that person to customers? How much seniority does one have vs another? Who displays more initiative and creativity?
It you want to call that “discrimination”, so be it. Discrimination used to actually be a good word, when it meant “the power of making fine distinctions; discriminating judgment”. Then the race-mongers got hold of it and NewSpeaked it.
June 18, 2009, 9:21 amrosetta's stones says:
If a constituency votes monolithically, it shouldn’t be surprised when unprincipled, careerist political hacks take the constituency for granted.
And recall the earlier discussion in here, about Edwards/Kerry specifically mentioning “lesbian daughter” in their presidential debates… a raw appeal for bigotry. Gays not just taken for granted… but used as an illegitimate campaign tool, and by their supposed benefactors, too.
Join the 15-20% of us who decide elections, and that constituency might have an impact. Right now, the constituency is powerless, and Holder just reaffirmed that fact.
June 18, 2009, 9:21 amrick.felt says:
Slightly O/T, but I have a practical question on benefits for same-sex partners:
A lot of people, particularly those under 30, have roommates and housemates. Usually these are of the same sex. In a state that does not have same-sex marriage or civil unions, what is to prevent someone from hooking his roommate up with health benefits by claiming that they’re partners?
The federal government isn’t going to make them come down to the office and make out, is it?
June 18, 2009, 9:23 amBart says:
Join the club. It numbers in the millions.
Ask the center right Obama voters if they were voting for Trillion dollar deficits and the nationalization of the auto industry and banks.
Ask the anti war left if they were voting for a third term of W’s law of war.
June 18, 2009, 9:24 amsham-wow says:
“Ask the anti war left if they were voting for a third term of W’s law of war.”
W’s war? Okay, but I seem to recall that our current VP and Sec of State both voted in favor of “W’s war” while in the Senate.
June 18, 2009, 9:29 amFat Man says:
So, who is the rube?
June 18, 2009, 9:39 amCornellian says:
A lot of people, particularly those under 30, have roommates and housemates. Usually these are of the same sex. In a state that does not have same-sex marriage or civil unions, what is to prevent someone from hooking his roommate up with health benefits by claiming that they’re partners?
Nothing at all, just like there’s nothing preventing an opposite sex couple from entering a sham marriage to get benefits, provided they’re willing to keep up the bare minimum of a pretense in public.
June 18, 2009, 9:51 amOren says:
I must have hallucinated those 2 weddings then.
A lot of people under 30 (myself included) have roommates of the opposite sex. What is to prevent someone from hooking up his roommate of opposite sex with health benefits by claiming that they are domestic partners?
June 18, 2009, 9:52 amCornellian says:
First of all, your numbers don’t work:
Jews 2.2% Jewish Population of the United States by State
GLBT 1.51% Composite U.S. Demographics
First of all, quoting a source that block quotes the Family Research Council isn’t going to convince anyone that doesn’t already agree with you. Second, even your source purports to be citing 2000 census figures of openly gay people, not the total number of gay people.
June 18, 2009, 9:53 amCornellian says:
Obama has been neither the moral nor the political leader they expected.
I don’t mind getting less than I expected from a politician – we all live in the real world of limited resources, including limited time and political capital, but I do mind active hostility towards causes the politician claimed to support while campaigning.
June 18, 2009, 10:02 amsham-wow says:
“but I do mind active hostility towards causes the politician claimed to support while campaigning”
Like renegotiating NAFTA?
June 18, 2009, 10:06 amrick.felt says:
Nothing at all, just like there’s nothing preventing an opposite sex couple from entering a sham marriage to get benefits, provided they’re willing to keep up the bare minimum of a pretense in public
Marriage involves a legal commitment. If you go back and read what I asked, I said “in a state that does not have same-sex marriage or civil unions.” Telling your employer that someone to with whom you have no legal relationship is your partner is not the same as entering into a legally sanctioned marriage or civil union.
What is to prevent someone from hooking up his roommate of opposite sex with health benefits by claiming that they are domestic partners?
When private firms first started offering same-sex partner benefits, there was no gay marriage or civil unions. AFAIK, you couldn’t get benefits for your live-in girlfriend; you had to get married. Gays were exempted, of course, because they couldn’t get married.
I guess my question can be rephrased as: if the Federal government starts extending benefits to same-sex partners, will they extend these benefits to couples residing in states that do not recognize same-sex marriages or civil unions?
June 18, 2009, 10:09 amPGofHSM says:
Cornellian and Oren,
Most places that offer domestic partnerships do not have them as an option for straight couples. Straight couples are required to get married, which involves a much larger legal commitment than domestic partnership does. For example, in New York and South Carolina, a married couple must have grounds to divorce (e.g. allege adultery, physical abuse, etc.) or live separately for at least a year before filing for divorce (which can be nearly impossible if one spouse cannot support himself without alimony from the other). There’s a very good reason straights don’t go around willy-nilly marrying their friends to give them benefits: marriage entails a lot more legal responsibility than y’all apparently realize. OTOH, if Obama says that one can obtain benefits for a “partner” without assuming all these burdens, then hell yes straights will start exploiting that.
rick.felt,
“If there were things that Obama wanted to accomplish legislatively as President, why didn’t he introduce those bills himself while he was a Senator?”
Because he’s not the only senator? Obama was one of the original 19 co-sponsors on the Domestic Partner Benefits and Obligations Act. The claim he did nothing in the Senate on behalf of sexual orientation equality is simply wrong.
June 18, 2009, 10:21 amPGofHSM says:
Also, the Aravois-inspired claim that the DOJ brief compares SSM to incest and pedophilia is at best exaggerated, at worst an outright lie. The brief nowhere uses the words incest or pedophilia. Aravois draws his outrage from a string-cite to cases in which one state refused to recognize a marriage that was legal elsewhere.
The “incest” was a first-cousin marriage, which is actually exactly what the Vermont Supreme Court cited in FAVOR of forcing Vermont to provide marital status to same-sex couples. One argument made by the state was that doing so would create disparities among the states in marriage recognition, and the Court pointed out that Vermont recognized first-cousin marriages while states like Texas did not, yet everyone had managed with this state of affairs just fine for years. Somehow I don’t recall Aravois or anyone else squawking about how horribly insulting it was to gay people for their marriages to be discussed in the same paragraph as first-cousin marriage back then.
The “pedophilia” was a 16-year-old’s getting married. There’s huge disparities among states regard the age at which one can marry, that recently ranged all the way from 13 to 18. My grandmother got married at 16, as was traditional at that time. Does Aravois really want to call my grandfather a pedophile?
June 18, 2009, 10:28 amrick.felt says:
Obama was one of the original 19 co-sponsors on the Domestic Partner Benefits and Obligations Act.
Okie doke. I was unaware of that. But I wasn’t claiming that “Obama did nothing in the Senate on behlaf of sexual orientation equality.” I was making a general statement about whether Obama should have been believed during the campaign, based on what he did as a senator, and a specific statement about DoMA.
The legislation you mentioned actually confirms my point. Obama is doing no more as president than what he did as a senator. He tried to extend benefits as a senator, and that’s what he’s doing as president. He didn’t try to repeal DoMA as a senator, and he’s not doing that as president.
June 18, 2009, 10:35 amHans Bader says:
Thank you for highlighting the “useless” nature of the federal hate-crimes bill. Even many of its supporters call it a “bottom-drawer” issue. It is actually a pernicious bill that could undermine safeguards against double-jeopardy, since it dramatically expands federal jurisdiction, including in cases that have nothing to do with sexual orientation.
The Administration may be pushing the hate-crimes bill first, while holding off on more meaningful gay-rights measures, so that gays and lesbians will be so hungry for any legislation perceived as gay-friendly that they will lobby hard to pass the hate-crimes bill.
Such lobbying is a mistake. The bill is unnecessary. Even without the proposed federal hate-crimes law, the killers of Matthew Shepard and Angie Zapata received life sentences without parole — the maximum that would be available under the proposed federal hate-crimes law.
On April 29, the House voted 249-to-175 to pass the federal hate crimes bill, which the bill’s supporters explicitly want to use to prosecute people already found innocent in state court all over again in federal court. Such reprosecutions are, sadly, allowed under a Constitutional loophole known as the “dual sovereignty” doctrine, which says that state and federal governments are different sovereigns, and that double jeopardy only applies when you are prosecuted twice by the same sovereign. (This loophole was established in the Supreme Court’s 5-to-4 Bartkus decision, over a stinging dissent by Justice Black).
In the past, the possibility of reprosecutions was viewed as a vice, not a virtue, and civil-rights advocates and lawmakers alike have sometimes cited this risk in opposing bills broadening the reach of federal criminal laws. But civil-rights groups now view double jeopardy as a virtue when it comes to people accused of hate crimes. They consider hate crimes so terrible that not even innocence should be a defense.
The latest example of this comes from the Leadership Conference on Civil Rights (a coalition of hundreds of liberal civil-rights groups including the ACLU), and the Mexican American Legal Defense and Educational Fund in a May 5 blog commentary entitled, “Pennsylvania Teenagers Acquitted of Hate Crime; Federal Law Needed.” It approvingly quotes the General Counsel of MALDEF arguing that the federal hate-crimes bill is needed based on not-guilty verdicts like the recent acquittal in state court of teenagers accused of a hate crime against an illegal alien from Mexico: “Last week, the House of Representatives passed the Local Law Enforcement Hate Crime Prevention Act, which will . . . give federal government jurisdiction over prosecuting hate crimes in states where the current law is inadequate. ‘[T] his verdict underscores the importance of the passage of this Act,’ said Henry Solano, MALDEF interim president and general counsel. ‘It is time for the Department of Justice to step in and bring justice to the Ramirez family and send a strong message that violence targeting immigrants will not be tolerated and will be prosecuted to the full extent of the law.’ The Justice Department is currently investigating whether to prosecute the two teenagers under federal civil rights statutes.”
By contrast, four members of the U.S. Civil Rights Commission opposed the federal hate-crimes bill in an April 29 letter, calling it a “menace to civil liberties,” since its “most important effect” will be to circumvent double-jeopardy guarantees. The full U.S. Commission on Civil Rights subsequently decided to oppose the bill, and sent a letter to Senate leaders on July 16 noting its opposition.
MALDEF and the Leadership Conference on Civil Rights are not alone in seeking to reprosecute people found innocent in state court. Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.
But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”
Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.
Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.
Civil libertarians like Wendy Kaminer and law professors like Gail Heriot have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections.
The hate-crimes bill also violates constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000).
Supporters of the hate-crimes bill have all sorts of lame rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had
June 18, 2009, 11:00 amMRSquared says:
Under DOMA, all competent adults have identical rights to marriage.
June 18, 2009, 11:09 amRandy R. says:
PGof: “The “pedophilia” was a 16-year-old’s getting married. There’s huge disparities among states regard the age at which one can marry, that recently ranged all the way from 13 to 18. My grandmother got married at 16, as was traditional at that time. Does Aravois really want to call my grandfather a pedophile?”
Then why did the DOJ cite the case? Your beef isn’t with Aravosis, but with the fact that DOJ believes that your grandmother getting married at 16 is something that can be banned by states.
” There’s a very good reason straights don’t go around willy-nilly marrying their friends to give them benefits: marriage entails a lot more legal responsibility than y’all apparently realize. OTOH, if Obama says that one can obtain benefits for a “partner” without assuming all these burdens, then hell yes straights will start exploiting that.”
So then the solution is quite simple: Grant marriage rights to everyone, including gays. Then every state and corporation can eliminate civil unions and domestic partners benefits. Gays will then understand the legal responsibility of marriage, and no one will be going around marrying willy-nilly.
The *only* reason the alternatives exist to marriage is because gays haven’t been granted marriage but people recognize that gay couples deserve some form of protection, legal responsibility and recognition.
June 18, 2009, 11:19 amRandy R. says:
Rick: “if the Federal government starts extending benefits to same-sex partners, will they extend these benefits to couples residing in states that do not recognize same-sex marriages or civil unions?”
The federal gov’t cannot currently extend any marriage benefits to same sex partners under DOMA. If DOMA is repealed, and they are allowed to, and actually do, then in state where SSM exists, gay couples would have full marriage rights. In states where SSM doesn’t exist, no, they wouldn’t be able to get any rights because they can’t get married in the first place.
At least that’s my reading of the situation.
June 18, 2009, 11:23 amRandy R. says:
“First of all, quoting a source that block quotes the Family Research Council isn’t going to convince anyone that doesn’t already agree with you. Second, even your source purports to be citing 2000 census figures of openly gay people, not the total number of gay people.”
And it certainly doesn’t count the multitudes of people who are have same sex experiences but claim they are not gay, a la Larry Craig.
BTW, turns out Senator Ensign just resigned because he admitted to an affair with a congressional staffer, even though both the staffer and Ensign are married to other people. He voted in favor of DOMA — it’s just too bad that legislation was too weak to save him. Query: How can we strengthen DOMA so that married men will no longer have affairs? Too many marriages are ruined today, and DOMA just isn’t working!
June 18, 2009, 11:27 amrick.felt says:
If DOMA is repealed, and they are allowed to, and actually do, then in state where SSM exists, gay couples would have full marriage rights. In states where SSM doesn’t exist, no, they wouldn’t be able to get any rights because they can’t get married in the first place.
Correct. But if a majority of both houses of Congress agree to repeal DoMA, the support might also be there to circumvent state laws in states that don’t have SSM. The federal government doesn’t have to obey the states when it comes to doling out benefits. Congress could, for example, pass a law extending benefits to any person with whom an employee has cohabited for one year.
June 18, 2009, 11:36 amjim says:
It amazes me!! Every time a new politician comes on the scene people act like the “one we can believe in” has finally arrived!! Then they are emotionally shattered when he disappoints them. Some have called politics the art of compromise, it isn’t. Statesmanship is the art of compromise, politics is the art of deception, and our politicians are the best at it!!!
June 18, 2009, 11:58 amBrian G says:
By the way, Professor, your headline is perfect. Obama did the least possible he could do.
I hope by now you and the rest of the gay community understands that he is not going to do anything for you other than window dressing. In fact, you are now seeing what many of us told you about the guy before he was elected.
June 18, 2009, 12:22 pmBob VB says:
Nothing at all, just like there’s nothing preventing an opposite sex couple from entering a sham marriage to get benefits, provided they’re willing to keep up the bare minimum of a pretense in public.
People did just that in the military to get out of the barracks all the time. I know one guy who is now retired military and his ‘wife’ lives on the opposite coast and they see each other every decade whether they need to or not.
Since few employers give ‘free’ health care for spouses anymore what difference does it make if an employee has a spouse primarily for health care? Everyone needs to have access to health insurance somewhere, right?
I agree Obama has done as little as possible and the idea this mere memo has ‘been in the works’ for months is ridiculous. I would go with its been held back for months to be played as an appeasement which it was.
Mr. President, please send me emails asking for money after either DADT or DOMA is gone – its a waste of time to bother me before that.
June 18, 2009, 12:37 pmRandy R. says:
“I hope by now you and the rest of the gay community understands that he is not going to do anything for you other than window dressing. In fact, you are now seeing what many of us told you about the guy before he was elected.”
Although I was a supporter of Obama, I was not nuts over him. Nonetheless, you are correct, and my eyes have seen the light of day.
In fact, I’m expecting a Sister Souljah moment any day now….
Rick: “The federal government doesn’t have to obey the states when it comes to doling out benefits. Congress could, for example, pass a law extending benefits to any person with whom an employee has cohabited for one year.”
I see your point. However, I think it more likely that, if Congress wants to extend benefits to gays where SSM is not allowed, they would grant benefits only to those who have either been civil unionized, or registered as a DP.
June 18, 2009, 12:45 pmClayton E. Cramer says:
Hewlett-Packard used to. At the end of 2008, they dropped domestic partnership coverage for straight people. What? No lawsuit alleging discrimination?
June 18, 2009, 12:59 pmClayton E. Cramer says:
Why do they have to be roommates? Right now, my wife and I are both on COBRA continuation health insurance coverage. Let’s say that we and 50 or 60 other people we know in the same situation announce that we are in a group marriage with someone who has group health insurance through his employer? Shouldn’t we have the same right to have our “marriage” recognized for purposes of taxes and health coverage? Isn’t it just narrow-minded bigotry to require us to all live in the same house? Aren’t there married couples where husband and wife have to live in different cities because of jobs?
June 18, 2009, 1:03 pmLarryA says:
Add gun control. It took nearly five years to get National Parks carry through the Bush administration. Obama signed it after six months.
Why? The question isn
June 18, 2009, 1:04 pmM N Ralph says:
Concern trolling from professor Carpenter. Lovely.
June 18, 2009, 1:22 pmM N Ralph says:
That bus’s axle is gonna break, in a minute here.
And another conservative concern troll shows up. How many more will I find on this thread?
June 18, 2009, 1:25 pmM N Ralph says:
I thought that even if there were correct, it might be wrong as to actual voters, but it’s not. Per CNN 2008 exit polls, self-identified Jews were 2% of voters and self-identified gays, lesbians, and bisexuals were 4%. I would have thought there were more Jewish voters.
June 18, 2009, 1:52 pmrick.felt says:
Per CNN 2008 exit polls, self-identified Jews were 2% of voters and self-identified gays, lesbians, and bisexuals were 4%. I would have thought there were more Jewish voters.
Yeah, but I think those bisexual numbers have to be inflated a little bit by all the college girls who think they’re bi until they graduate.
And another conservative concern troll shows up. How many more will I find on this thread?
It’s not concern-trolling. It’s schadenfreude.
June 18, 2009, 1:57 pmM N Ralph says:
The DOJ cited the cases in support of the proposition that the DOMA provision allowing states to not recognize other states’ SSMs is constitutional. The courts have held that states need not recognize other states’ marriages under the full faith and credit clause if doing so violates the state’s public policy. Thus, a state prohibiting marriage between first cousins could, without violating the full faith and credit clause, refuse to recognize a valid marriage under another state’s laws of first cousins. Likewise, a state prohibiting 16-year olds from marrying, could, without violating the full faith and credit clause, refuse to recognize a valid marriage under another state’s laws involving a 16-year-old. If you are going to defend the constitutionality of DOMA, then the cited cases are on point. Frankly, if you are going to make the argument, it would almost be malpractice not to make the argument. Nowhere in the brief does the DOJ say homosexuality is like pedophilia or incest. That’s just a load of crap to either manufacture outrage or ignorance of legal argumentation.
June 18, 2009, 2:17 pmM N Ralph says:
You got me all excited for nothing. Ensign resigned only a leadership position with the Republican caucus. I thought he resigned from the Senate. No such luck. We’ll just have to use the old-fashioned way and vote him out in 2012.
June 18, 2009, 2:22 pmOren says:
Even the places that do (CA) do not have an epidemic of fake domestic partnerships.
June 18, 2009, 2:58 pmDaniel Chapman says:
“Under DOMA straights have the right to marry any person they love. Gays don
June 18, 2009, 3:03 pmOren says:
They don’t, my point was that bogus relationships are no more of a problem with same-sex benefits as they are with hetero benefits. It’s fraud to enter into a sham marriage and it’s likewise fraud to enter into a sham domestic partnership.
June 18, 2009, 3:04 pmrick.felt says:
It’s fraud to enter into a sham marriage and it’s likewise fraud to enter into a sham domestic partnership.
You’re assuming that legal recognition of a same-sex relationship is required before same-sex partner benefits will be granted. If entitlement to benefits is not dependent on legal recognition of a partnership, then the potential for abuse is high.
June 18, 2009, 3:28 pmRandy R. says:
“Ensign resigned only a leadership position with the Republican caucus. I thought he resigned from the Senate.”
Oh, gosh, NO! Ensign called upon Clinton to resign from office when the Lewinsky affair became public, but Ensign certainly doesn’t expect to hold himself to the same standards. Remember: Morals are only for people we don’t like, but they certainly don’t apply to our kind.
“This is when you say that those are different situations and probably call me a bigot or something.”
No, not a bigot. Not terribly bright, or disingenuous, perhaps, but not a bigot. If, after all this time, you can’t wrap your head around the fact that straights can get married in all 50 states, but gays can only get married in about five, then I can feel sorry for someone that dense.
June 18, 2009, 3:35 pmChrisTS says:
Reality: [The] institution of marriage pre-dates history
Belly-Laugh of the Day Prize.
June 18, 2009, 3:46 pmshawn-non-anonymous says:
ShelbyC: “Do you know of any evidence of gay folks being systematically payed less?”
Military members get additional allowances for being married. (DADT and DOMA complicate this.) A legally married gay couple cannot gain this same increase in pay.
In a prior job, with well-meaning management, married individuals with children tended to get more promotions because they “needed” the money more.
June 18, 2009, 4:04 pmClayton E. Cramer says:
That’s what you get for working for a company that is socially conscious.
June 18, 2009, 4:43 pmMorisobela says:
MESSAGE
June 18, 2009, 4:44 pmDaniel Chapman says:
Thanks for that, Randy… it’s good to know that some things will always be predictable.
June 18, 2009, 4:54 pmRandy R. says:
My pleasure!
June 18, 2009, 5:29 pmOren says:
Then hetero couples should demand the same deal.
June 18, 2009, 6:05 pmDanny says:
Actually, unlike an ethnicity, we have some more voting power than just ourselves (maybe 4-5%). Perhaps 25% of Americans have a close family member who is gay or lesbian, and more have close friends. So if a political party demonizes or discriminates against me to the point that I would leave it, I might take 20 straight people with me
June 18, 2009, 6:19 pmDaniel Chapman says:
“demonize?” “discriminate?” We are still talking about Obama GRANTING rights that previously didn’t exist, right?
June 18, 2009, 6:27 pmcmr says:
Not just that, but we’re talking about people being upset because he’s not making it easy for them to institute something he’s already said he opposes.
June 18, 2009, 9:08 pmVolokh Groupie says:
@M N Ralph
Yes, because Prof. Carpenter never posts about Gay Marriage or gay rights related issues.
I guess you’re just trying to fill the regular ol’troll position on these comment, huh?
June 18, 2009, 9:50 pmCornellian says:
Ensign said this in 2004 when declaring his support for a constitutional amendment banning same sex marriage throughout the United States:
June 18, 2009, 9:59 pmVolokh Groupie says:
I wonder if anyone has ever done a study on the frequency of infidelity amongst politicians vs the general public. I’d bet a power vs infidelity R value is >0.5.
June 18, 2009, 10:14 pmDuracomm says:
M N Ralph, showing his ability to say stunningly ignorant things to defend obama’s back stab of the gay community says
If M N Ralph had been paying attention he would have known that gay marriage related issues is essentially all Dale Carpenter writes about on this blog. He was doing this long before obama was in office.
June 18, 2009, 10:58 pmPedobear says:
June 18, 2009, 11:59 pm
ReaderY says:
In many states a “domestic partnership” is a kind of business arrangement which permits an unlimited number of partners. Could one form a multi-partner domestic partnership with, say, a general partner and a number of limited partners, to enable the limited partners to obtain benefits from the general partner’s federal employment?
Why not? Surely no-one could object. No-one want would want to raise the squalid idea that the federal government has any business questioning the way states choose to define what a domestic partnership is. Surely it is what the states say it is, and if the states give people an opportunity to enter into some non-traditional type of domestic partnership, the federal government should honor it. No-one would want to raise the even more squalid idea that the federal government can, let alone should, limit the kind of domestic partnerships it spends its money on to those that serve some sort of government-endorsed purpose distinct from the benefit and happiness of the partners.
June 19, 2009, 12:13 amDanny says:
I didn’t mean the Dems, I meant any party, hypothetically. My point was just that homophobia has a big political impact because many straight people have family links to gays and their voting changes accordingly.
June 19, 2009, 12:34 amZoe E Brain says:
Regarding “Hate Crimes”…. the Zapata case was given publicity simply because it is so very rare, almost unheard of, that anyone is ever convicted of murder when the victim is transsexual.
70% of homicides are “cleaned up”. Except when the victim is transsexual, then it’s 30%.
The FBI tracks “hate crimes” based on religion (over 1000 attacks on Jews in 2007, vs 65 against Catholics), race, sexual orientation (again over 1000 attacks against Gays), but not against transgendered people. No-one was killed in 2007 on the basis of their religion. 5 gays were killed for being gay. And according to organisations that do track “hate crimes” against transgendered people, over 20 of them.
Here’s one of the ones that won’t be counted by the FBI without a “hate crimes” bill (or “pedophile protection bill” as its opponents call it). It was committed between the time this post was published on this site, and my comment:
THIS HAPPENS ALL THE TIME. You just don’t read about it, most such crimes where the victim is transsexual never make the papers. Not even on page 68.
Had such a crime been committed involving a teenage girl who was not transsexual, it’s certain that it would have been given some publicity, if not page one.
One correction – In the Zapata case, there was no evidence of sexual activity between victim and killer – yet the killer is referred to as “her lover” by another commenter based solely on the killer’s testimony, which has been shown to be almost wholly false from other evidence.
June 19, 2009, 1:17 amrick.felt says:
Had such a crime been committed involving a teenage girl who was not transsexual, it’s certain that it would have been given some publicity, if not page one.
He/she/it was raped and murdered? Then give the perps the chair, or life without parole if you’re against capital punishment.
Given that the murderers committed a capital crime, I don’t see how layering a hate-crime charge on top of it would have deterred them.
June 19, 2009, 8:48 amRandy R. says:
Rick, it is deeply offensive to refer to anyone as ‘it’. Zapata was a person and should be treated as such, not an object. Many people have a hard time wrapping their head around what a transsexual is (and I completely understand why many people don’t, so I don’t mean to dump on you), at least afford them the respect any person deserves.
As to whether a transexual is a he or she, it is up to that person. Since she referred to herself as a teenaged girl, then she is a she, just as you probably would like to be referred to as a he. Thanks.
More to the point, I believe Zoe was merely arguing that these types of crimes are only tracked for purposes of hate crimes. It is of course disputable whether layering another charge on top of murder will act as a deterrent, but what is not disputable is that the FBI only started keeping tract of these cases once they decided to keep tract of hate crime. In many cases, there is no publicity, and so the public has a false belief that crimes against transsexuals are rare or non-existent, when in fact, as Zoe points out, then happen with much greater frequency than we would think.
June 19, 2009, 11:29 amZoe E Brain says:
If the local law enforcement refuses to investigate, or the DA refuses to prosecute any crime where the victim is TS as murder, then a Hate Crime law would enable Federal intervention.
That only 30% of such homicides are solved when the victim is trans strongly suggests that this may be a problem. That deaths by violence of trans people often result in charges of common assault, attempted manslaughter, and so on also suggests that there’s a problem.
That the “trans panic” defence continues to be used successfully in court is also an issue. We currently do not accept that killing a woman who’s “passing for white” is a lesser crime when the misapprehension is resolved. Rather, it is seen as exacerbating the crime.
In addition, the legislation would enable the FBI to collect statistics on bias-motivated murders of trans people. Currently, only gays are covered, and the majority of the worst crimes of violence against GLBT people are against trans people. Personally, I think this is by far the most valuable part of the legislation, as the evidence it will produce will be shocking to the general public. We already know from counting media reports that the rate of lynching of trans people greatly exceeds the highest rate of lynching of blacks (per member of the victim class), but without “official statistics”, such figures have little credence.
The additional penalties for bias-motivated crimes are really only relevant for lesser offences, such as desecrating cemetaries, burning down synagogues, and so on.
Example: Another incident, not a murder this time, but typical of the assaults that are not currently counted as bias-motivated crime:
Had the County Sheriff not been given the video evidence, it is unlikely any investigation would have been conducted.
The use of sledgehammers on victims is not uncommon, as is the use of condoms during the rape, though the first names being the same is coincidence.
June 19, 2009, 11:32 amZoe E Brain says:
Randy R – thanks. Although I’m not technically trans, I’m Intersexed, trans is close enough. Like 5alpha-reductase-2 deficiency and 17beta-hydroxysteroid dehydrogenase-3 deficiency, my particular medical syndrome involves an apparent natural sex change. There’s about 5,000 of us in the US, compared to the over 50,000 post-operative trans people, and rather more who can’t afford the surgery.
So if you find trans people confusing… well, I can understand that. It’s no easier for those who are trans or Intersexed, and the legal problems we face would be hilarious if they weren’t so terrible.
Then there’s the measured rates of violence.
The chance of dying from homicide in the general population in the USA is 1 in 18,000. The chance for young urban black males is 1 in 5,500.
The chance for black or latina trans women is supposedly 1 in 8, but there’s evidence that the population in those groups is drastically undercounted, so it’s actually nowhere near as bad, only 1 in 40.
For people like the murder victim I mentioned in my first post, white, female, post-operative, middle-class, doesn’t stand out, tries to remain inconspicuous, but whose status is public knowledge(like myself), the odds are 1 in 1,100.
While this does not prove that there’s an epidemic of bias-motivated violence against trans people, it certainly suggests that data should be gathered.
June 19, 2009, 12:03 pmrick.felt says:
If the local law enforcement refuses to investigate, or the DA refuses to prosecute any crime where the victim is TS as murder, then a Hate Crime law would enable Federal intervention.
June 19, 2009, 12:25 pmWhat if local law enforcement or the local prosecutor refuses to investigate/prosecute a murder that cannot be classified as a hate crime? Should we not federalize those crimes, as well? If not, why not?
Danny says:
There is no need I think for the terms hate crime or hate crime legislation. There is a simple word for this phenomenon: terrorism. Someone who attacks or kills a random black / Jew / lesbian / transexual to send a message to that community should be guilty of assault or murder AND terrorism.
June 19, 2009, 12:48 pmjohn464 says:
Actually, stats from 2000 would have been better than the apparent source: “The primary source cited was the The National Health and Social Life Survey (NHSLS), published in the book The Social Organization of Sex: Sexual Practices in the United States (1994), by Laumann, Gagnon, Michael and Michaels.”
A lot has changed in 15 years, including the percentage of people comfortable with publicly identifying as gay.
June 19, 2009, 6:46 pm