Injustice dismantled: Welcome to a new world aborning
Fair-minded folks breathed sighs of relief and gratitude when President Barack Obama and Attorney General Eric Holder announced that the shamefully discriminatory Defense of Marriage Act (DOMA) will not be defended by the U.S. Department of Justice. At last, the Department of Justice lives up to its name by embracing lesbian, gay and bisexual (LGBT) people! At last, President Obama takes a strong stand against marriage discrimination! While our president evolves his thinking on the issue of marriage equality for same-sex couples, the world spins forward.
The administration’s action builds hope and power, inspiring us to strive to do more to dismantle injustices wherever they skulk and skitter and diminish our lives and the lives of sisters and brothers who bear burdens of social and political opprobrium. LGBT people will not be strangers to the law nor outcasts in legal and political wildernesses, nor will we tolerate or accept the casting out of other denigrated peoples: immigrants, low income families, women in need of abortion services, young people securing their futures through means other than joining the military.
But, while we celebrate, let’s remember that DOMA still has the force of law. The Defense of Marriage Act catapulted through the Congress as a public national debate on marriage rights for same-sex couples gathered momentum. Under dark of night, President Bill Clinton signed it into law on Sept. 21, 1996. DOMA allows states to deny legal recognition to legally married same-sex couples and permits the United States government to deny to legally married same-sex couples all rights, protections and responsibilities associated with marriage. As a practical matter, DOMA bars legally married same-sex couples from filing joint tax returns, naming spouses as beneficiaries of pension plans for federal employees, and securing U.S. citizenship status for spouses born outside the United States, among other things. These are just three of the 1,138 federal statutory provisions in which benefits, rights and privileges hinge on marital status. For legally married same-sex couples, DOMA represents a complete erasure of our families, our spousal relationships and our lives by the federal government, to which we pay taxes and often rely on for myriad kinds of support. Even something as simple as obtaining passports for our children becomes complicated and painful because during the application process, one spouse/parent of the children must literally disappear from the family.
Reality bites and DOMA is not yet undone. Sabers rattle in Congress to mount its own defense of this indefensible law. The right-wing calls for a put up and show up offensive to preserve and protect DOMA. Tick tock. How long before DOMA is struck down by the land’s highest court; or even better, repealed by Congress? Do not not lulled into silence by the apparent inevitability of a complete repudiation of DOMA and please engage when and where you can and must to drive the stake through the heart of this vampire.
It was ever thus.
Court decisions and political actions that benefit despised minorities often provoke intense and rough-and-tumble public debate, political backlash, and, sometimes, new rounds of antagonistic legislative initiatives, community organizing, and constitutional amendments. Witness: Roe v. Wade; Brown v. Board of Education; Goodridge v. Department of Public Health; and on and on. We should be relieved and grateful for President Obama’s strong stand against DOMA, but we should not relax. Our voices, our actions, our power will all be needed to ensure that DOMA is undone, that federal constitutional amendments to enshrine it in our foundational document are defeated, and that the right of same-sex couples to marry proliferates throughout the states. Hello, Maryland and Rhode Island and New York! Hang in, Iowa and New Hampshire!
The less expected and more far-reaching aspect of yesterday’s announcement is this: the administration concluded that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.” Holder cited DOMA as one example of a law failing to meet the standard and, thus, not passing constitutional muster.
Heightened scrutiny? Is this a TSA advisory? No. Neither is it increased parental supervision of children, as my son suggested upon our daughter’s departure for college that he would be “under a heightened level of scrutiny.”
Heightened scrutiny refers to the way that courts analyze and review laws that treat groups of people differently. DOMA is a discriminatory law that treats same-sex couples differently from opposite-sex couples. If we are legally married to our same-sex partner, we are disqualified from full legal recognition of our marriages and from over 1,000 rights and benefits under federal law. Obama and Holder have declared their opinion that DOMA should be analyzed with heightened scrutiny because they suspect (and so do we!) that DOMA was enacted out of bias towards same-sex couples. The government of the United States, a.k.a. the Department of Justice, must prove that the discrimination against same-sex couples advances an important government goal. The right-wing ideologues in Congress may choose to make that case, but Obama and Holder? They’re not having it any more, or at least in relation to DOMA.
So, what does the heightened scrutiny aspect of the announcement mean? In real terms, the president and the attorney general acknowledged what we know in our daily lives: we are subjected to discrimination based on animus and hostility to our very lesbian, gay, bisexual and transgender selves, and further that laws codifying, upholding and enforcing discrimination are unconstitutional. Friends, it’s the beginning of the end of laws and public policy that hold us captive by diminishing our lives and robbing us of basic human dignity.
Welcome to a new world aborning.
For more information about the National Gay and Lesbian Task Force, visit www.theTaskForce.org.