Tuesday, June 16, 2009


What can I say? rake_blackguard is right.

Obama defends DOMA in court, says banning gay marriage is good for the federal budget, invokes incest and pedophilia.

First he, a black man just one goddamned generation removed from Brown v. The Board of Education daring to use the phrase "separate but equal" in reference to gay marriage, then his pussying out on clapping Bush in irons and pillorying him in front of the White House, and now this.

And I have to turn to DICK FUCKING CHENEY for some governmental recognition, as unofficial and possibly coerced as it was, that the love I practice isn't a great sin against The United States of Jesus. Dick Cheney makes Richard Nixon look like Rob Blagojevich in comparison and I hear more affirming things out of him, the goddamned devil himself, perpetually snarling like the Beast that Revelation's Whore rides, war profiteer and waster of men's lives, than a goddamned black president.

Is the warranty on this black president still good? At this point I think I'd suffer that paranoid little gnome Ron Paul better than this one.

Hey, Obama, how about a compromise? How about we just say that gay marriage is worth 3/5s of what a straight marriage is worth!

When this happened, I actually ended up in a conversation with my mother about it. My mother is one of those people who's had so many bad marriages that she doesn't think marriage is important. It didn't mean anything but more mess in her relationship, so not only are gay people wrong for fighting for full contractual rights... they should be.... protected from their own desire for equality? Or something?

I can't help but think that if I'd been in a relationship with a woman for nearly five years she would agree with me. Note that I am careful not to say "she would understand." My mother isn't big on understanding things. She hates and mistrusts anyone who uses bigger words than she does, assuming that because they could talk circles around her that they are and that therefore anybody with an IQ over 85 is not to be trusted (because apparently it's far easier to exercise restraint and responsibly use a firearm than one's own intellect).

She still wouldn't get it. But she's one of those monstrous people who is quite comfortable declaring as irrelevant anything that does not impact them in some obvious and immediate way. "If it doesn't affect me, I don't worry about it." I'm sure she loved that logic from other people when her husband was beating the shit out of her.

But she lacks the self-awareness and critical thinking ability to even check for hypocrisy like that. It doesn't occur to her. She believes whatever her husband and his Fox-News-inundated military buddies say she should, and has told me explicitly that she always votes but hates thinking about politics. That's right. My mother is one of those people who thinks it's important to vote, but not to think before doing so.

If I were with a woman and I explained all of the things that were important to me that'd be denied me, she'd begin to care because it would affect her. No, not because it would affect me. That only matters incidentally. It would impact her vision of herself as a woman who protects her kids. In order to protect that flattering view of herself, she'd believe whatever she thought she should. It just goes to show that it's possible to change people's unfounded and unexamined opinions without actually changing the terrible and stupid means by which they are arrived at.

I'm still considering telling her I'm bi. It's as true as it is not (though since I prefer men, I still consider my sexual preference to be hetersexual), and maybe then she'd understand what I mean when I say that I'm not marrying a man in a state where I couldn't marry a woman. She'll understand that I mean, "I'm not signing a contract in a state where my right to do so is contingent on the genital arrangement of the other signatory to the thing."

She actually said to me, "Well, you have to respect the people who hold something as very important, and don't want something they think is wrong held up as an equal to what they believe is right."

"...Actually, I don't have to respect anybody who thinks their rights lose meaning if other people have them, too. I don't need to respect that at all."

She and my stepfather are the kinds of people who have "lots of gay friends." I was actually under some pressure growing up to be with women, hilariously enough. She seemed certain I was moving that direction and she wanted me to know that it was not only okay but that she'd understand. She's also a huge proponent of gay adoption, because "a loving home is a loving home."

So she clearly doesn't mind the idea that gay people are people like everyone else. And she has "lots of gay friends." Thing is... if it hurts me to hear her talk this way, I can only imagine how they feel. No wonder all her friendships halt at the most superficial possible level. Any deeper than that and she starts telling people they're subhuman because she doesn't care enough to think of a way not to.

This memo from the DoJ? This is a case of them not caring enough to think about how badly it damages American citizens to compare those who are fighting for equal contractual rights to child rapists. I mean, it doesn't really take a lot of thought. But they didn't do it.


sammka said...

Having read the relevant provisions of the brief and the blog article, I have to say that the article is really greatly exaggerating the comparison. In the context of a discussion on the fact that states can deny recognition to marriages that violate the states' public policies, the brief cited cases (which, by the way, it -had to do- since you simply can't state such things without providing case citations) upholding one state's denial of recognition to a marriage between first cousins, and another state's denial of recognition to the marriage of a 16-year old. Nothing in that passage says "child rapist" to me (we aren't even toldthe age of the other spouse, who may well have been 18), and while there is, technically, "incest," it's not incest of a particularly inflammatory nature.

I think the brief still overstates its point, but honestly, if I were President and someone tried to attack DOMA with legal arguments as shitty as some of the ones these plaintiffs had, I'd feel obligated to file an opposition brief too, just so that we didn't get bad precedents that could then be applied to completely unrelated cases.

Which leaves only their argument that DOMA is unconstitutional because discriminatory. DOMA is a terrible law, but if it were judged unconstitutional then every state's decision not to let gay people marry would also be considered unconstitutional, and the current Supreme Court is not likely to come out with such a decision. So given that we're simply not going to get a good decision against DOMA based on that argument, I'd rather we didn't get one based on another, stupider argument.

Incidentally, I kind of know the US Solicitor General, who's likely to be the one arguing this brief before the Supreme Court, and she does seem to "get it." I wonder how she feels about it (although of course she'll never say publicly).

Cobalt said...

I'm glad the comparison isn't as bad as this comparison can sometimes be. It hits a lot of the same nasty triggers, but I guess if they're trying to find a legal precedent that isn't "well, this one time we said blacks and whites couldn't marry, so I guess we can use that," this is indeed what they're left with.

The main Constitutionality argument against DOMA isn't discrimination, although that's valid enough for me. Many people are invoking contractual reciprocity, that a contract in one state is valid in another state by law (except for same-sex marriages). But they're shy even of this because it means that states with bans would still have to recognize marriages from states without them, which functionally makes it legal everywhere.

And I do understand that politicians can't always vote the way they think/feel, and certainly can't always say it. It's part of the reason why legislatures hate certain issues coming to the floor. It means having to vote against their conscience, or get voted out by constituents who don't understand their legislator's rationale. So I do get that sometimes people have to say things that they don't think are right for political reasons (such as not pointing out one of the couple of very valid Constitutional conflicts with DOMA because everybody's constituents are terrified of Teh Gheyz, and still vote).

I just really disapprove of the fact that since we can't use anti-miscegenation laws as legal precedent for this, they have to leap straight to incest and marrying minors. Whatever the basis of this, the persistence of those comparisons are part of the reason why the notion of gays as crazed sexual deviants is still around.

sammka said...

The issue with the "full faith and credit" clause (states honoring each other's contracts) is thorny and is actually the point where the incest/minors arguments come up. Basically, it's well settled that, as a constitutional matter, a state has no obligation to honor contracts from foreign states that violate its own valid "public policy." Thus, even though one state may think it's perfectly okay for, say, 16-year-olds to marry with consent of their parents, another state may not (personally, I don't see this as a "sex with minors" issue at all - 16-year-olds are clearly old enough to have sex, at least with people close to them in age. They're just probably not old enough to make decisions about marriage). And any currently valid cases (i.e. - not ones about mixed-race marriages) that can be cited on this issue are necessarily going to involve a marriage that someone thinks is a bad idea somehow, since otherwise no state would have had a good enough policy reason not to recognize it (on the other hand, they're not going to involve marriages that everyone thinks is a bad idea, like between siblings or to a small child, because some state had to think the marriage was acceptable).

So in any case the "full faith and credit" argument in this case is mooted by the discrimination issue: We have to acknowledge that a state has a rational reason not to acknowledge SSMs because if it didn't, then it'd be unconstitutional for any state not to perform them, and we're just not getting that any time soon. Thus, the portions of DOMA that say that a state doesn't have to recognize another state's same sex marriage are simply restating the law as it was even before DOMA was passed, and as it will most likely be even when DOMA is repealed.

And this also explains why, in a legal case like this, the government can't simply support any argument that would make the plaintiffs win. It's not because of political backlash but because the reasoning in Supreme Court decisions become prospective rules of law that may then be applied to completely different cases unrelated to SSM. Thus, despite the fact that I think all states should acknowledge SSMs, I wouldn't welcome a Supreme Court decision that said, for example, "DOMA is unconstitutional because the Full Faith and Credit Clause requires states to recognize all marriages and contracts from other states, regardless of how they feel about such marriages." Forcing states to acknowledge contracts from other states regardless of their own public policy would have far broader reach than same sex marriage, and yes, it actually would be applied to marriages to minors and even to, say, contracts that one state considered fraudulent or unconscionable.

To avoid such problematic precedents, the only good court decision on this issue would be one that said "no, the Full Faith and Credit Clause doesn't require states to acknowledge contracts that contravene their legitimate public policies, but animus toward same sex marriages is not a legitimate public policy because it is rooted in homophobia." That is the only way I can see to constitutionally invalidate DOMA without invalidating states' decisions not to recognize marriages to 16-year-olds. And again, sadly, the Supreme Court that would make such a decision is not the Supreme Court we have.

Cobalt said...

Thanks for taking the time to explain why the reciprocity argument isn't as strong.

I still really object to the things that SSM is getting compared to because of the cultural impact and how it encourages people to perceive LGBT people, but I think I understand a lot better now why it's happening in this case.

sammka said...

Eh, I'm pretty skeptical of the cultural impact that a parenthetical case citation in a Supreme Court brief is even likely to have (unless, as in this case, it gets exaggerated/sensationalized). The objectionable text itself is really just something along the lines of:

"The Full Faith and Credit Clause does not require states to recognize marriages contrary to their public policy. See, e.g., [Case name #1] (state not required to recognize the marriage of a 16-year-old); [Case name #2] (state not required to recognize a marriage between first cousins). Therefore, [blah blah blah]." Two parentheticals in a minor point in a 57-page brief. Most lawyers reading this, I imagine, are unlikely to see it as making a comparison between same sex marriage laws and state laws allowing 16-year-olds to marry as anything close to "gay people are like pedophiles.

By comparison, many of the Guantanamo cases critically hinged on the interpretation of an earlier case from the 1940s involving the question of whether Germans, arrested for remaining combatants after the war ended and then held in a prison in Germany, could seek habeas relief in the United States (the Supreme Court said they couldn't, because they were not really within the US' territorial jurisdiction). Almost nobody would say, though, that the current Supreme Court, in discussing this case, was "comparing" suspected combatants held in Guantanamo to Nazis. It was simply acknowledging that they were in a potentially analogous situation.