by Josh Friedes -
Special to the SGN
President Obama proved he is a champion of LGBT civil rights on Wednesday when, through the U.S. attorney general, he announced that he was ordering the Department of Justice to not defend Section 3 of DOMA, which is presently being challenged in Federal courts. It is hard to overstate the importance of this decision.
In the struggle for LGBT civil rights, Obama has restored the rule of law. Perhaps watching events unfold in the Middle East has helped us all remember that we as a nation are greatest when we put our Constitution first and sublimate our personal prejudices to this ideal. We really and truly are a nation of laws and not of men, women, and gender nonconforming people. America has always struggled when it comes to civil rights but our march towards our ideals is made possible by our adherence to the supremacy of the living Constitution.
We have watched Obama struggle with LGBT civil rights. Many of his recent statements seem to reflect a growing personal understanding of the lives of LGBT people and the deprivations we face because of inequalities in the law that are compounded by social injustices. Our constant mantra of the importance of personal relationships and telling stories seems to be holding true with the president.
And yet on marriage equality, there is no evidence that the president personally supports it, although he has acknowledged his position is evolving. It would be easy to criticize the president for not personally supporting marriage equality. I wish he did personally support it, but like many people, he may presently believe that marriage is between one man and one woman.
LGBT people will not achieve social equality until personal support for marriage equality and diverse gender identities increases. Today, much of the conversation is about social equality even as the issue before the courts and in legislatures is legal equality: the ability of people to exercise their legal rights even in the face of personal prejudices, even if those personal prejudices are held by the majority.
The U.S. attorney general's statement in essence reminds us, and demands that the Department of Justice apply rigorous legal standards to questions of LGBT civil rights. Unbridled populism and sometimes the actions of the radical right (a minority) have to date eclipsed the rule of law in much of the debate around LGBT civil rights issues. To date, no president, not even a president as good on LGBT issues as Bill Clinton, was willing to impose the rule of law. In fairness to Bill Clinton, even the power of the presidency is limited, and arguably we had not achieved enough social equality during his tenure to see the imposition of the rule of law on LGBT civil rights issues.
On Wednesday, this all changed when in a dry and legalistic statement, the U.S. attorney general wrote, 'After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the Department not to defend the statute in such cases. I fully concur with the president's determination.'
In essence, Obama said his personal opinion is irrelevant. What matters are principles of constitutional law, and applying them there is no basis to deny legally married same-sex couples the federal benefits and protections of marriage.
Of course, Obama is not a Supreme Court justice, but his actions matter. It will take time for the challenges to Section 3 of DOMA to work through the courts. And the statement did not say that states refusing to issue marriage licenses are in violation of the United States Constitution. However in calling for a heightened level of scrutiny, Obama is putting huge pressure on the courts, increasing the probability that in the future a challenge to the legitimacy of denying marriage licenses could be successful.
For Washington state, Wednesday's statement changes everything. A few days ago it was hard to articulate to the moderate middle why domestic partnerships were not enough. After all, in essence, a Gay couple with a legal marriage in Massachusetts had roughly the same rights as a Gay couple with a domestic partnership in Washington state. Many people have trouble understanding the non-tangible protections marriage provide nor the indignity of not being able to marry. Now we can easily explain the difference.
The U.S. attorney general explained to the nation that legally married same-sex couples should have a constitutional right to the federal protections of marriage. Legally this differentiates a marriage license from a civil union or a domestic partnership. There is no corresponding constitutional protection to provide the federal protections of marriage to same-sex couples with domestic partnerships or civil unions.
Soon we will be able to measure the tangible difference between a domestic partnership and a legal marriage. At last count, I believe it was 1,138 federal protections that were given by the federal government to heterosexual couples with a valid marriage license. We are talking about important protections like Social Security survivor's benefits and immigration rights and equal treatment under the IRS tax code and Veterans benefits to the families of those killed in the line of duty.
Now, we in Washington must work quickly to achieve marriage equality. Never do we want there to be a day when our LGBT families lack the maximum protection provided by law. Soon federal DOMA will be struck down as unconstitutional and same-sex couples with marriages from Massachusetts, Vermont, New Hampshire, Iowa, Connecticut, Canada, and other countries where marriage is legal will have federal protections. Couples from states like Washington or Oregon with domestic partnerships will lack federal protections. Sadly, it will take time for Federal DOMA to fall, but this gives us time to achieve marriage equality in Washington state.
Joshua Friedes is the executive director of Equal Rights Washington.
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