One Issue Politics

I was reading through some of the more recent posts on this blog and realized that I have drifted away from my initial intention - to promote rational, acid-free, debate on a wide variety of issues. I try my best to follow a number of different issues that I know enough about to express an opinion and avoid ones that I know nothing about. My last posts have focused on same-sex marriage. It is an important litmus test on civil rights, at least as I see it and, if you read newspapers, the issue commands a lot of column space. But I don't want to focus on that issue to the exclusion of others.

I remember political meetings in the early 90s and being shouted down when I suggested that "the movement" had plenty of room to demonstrate that we were not one-dimensional, angry warriors. If we wanted a place at the table, we had to understand that there are other constituent groups who had perfectly legitimate interests and that we ought to study them, take positions on them and join with as many people as possible to make a much longer list of political and social priorities. Lots of lesbian and gay people agreed with me and went off to careers in all sorts of different fields, helping to make policy decisions that affected everyone. Many of them, like me, refused to be the "gay perspective expert" at staff meetings because I didn't think I was qualified to speak for all gay men, even to one corporation. That's a heavy responsibility and, as we know, impossible.

I recently read a piece that I think hits the nail right on the head. The premise was that the LGBT movement has no Martin Luther King. There are certainly a few people who have a much bigger platform to get the message out (Evan Wolfson, Joe Solomnese, Barney Frank, etc.) but no one person has emerged as the kind of transformative leader who can snap his or her fingers and count on an army of true believers to march on Washington at the drop of a hat. (That, by the way, is one way of how I judge the power of a union president.)

The Internet has both enhanced the ability to organize but also hobbles those efforts because too many people of every political stripe seem to believe that bloviating on the Internet is a substitute for putting your feet on the ground or sending a well-written, personal letter to your state and local representatives that wasn't already written for you by a website.

Look at what's happening in Iran. Many young people in Iran seem to have access to technology that helps to chronicle the tragic reaction of the current Iranian regime. But they also put their boots on the ground and took great personal risk in doing so. That kind of bravery gets rarer every day. Without those pictures, few of us would appreciate just how much dissension there is, nor would we know that the 'democracy' Iran says it created in 1979 is far from any Western notion of democracy means. It's hardly easy for the United States to divorce itself from the issue, particularly given our history in that country - including installing a peacock throne for the Shah following a democratic election in the early 1950s that included SAVAK, the Iranian version of the KGB. Iran has lots of oil in the ground but no refinery to use it. Iran imports refined petroleum from its neighbors. The political use of religion in Iran is no surprise. It worked before and took away modern rights that we take for granted.

That's just one issue.

I intend to try harder to be a whole person - not just a gay man - and try to start conversations about issues that are not central to my daily life but are to others. I was on the right track last year. I'll try to get back there in future posts.

It's no secret that in the space of a few short years, states have grappled with what to do about granting marriage rights to lesbian and gay couples. Many have legislation that either offers some rights via a civil union (for these purposes, I'll call those laws "marriage lite" - civil rights that to me are the equivalent of watery beer. Others have attempted to deny any rights whatsoever. Some have legislatively permitted full marriage rights. Others found themselves in court battles that had the same result.

The Defense of Marriage Act - I have to remember that Bill Clinton signed the bill because it seems so against his general core beliefs - attempts an end-run around the full faith and credit guarantees under the Constitution but apparently comforts those states that are unable or unwilling to grant full marriage rights in their own states. Married in Massachusetts and decided to move? Welcome to Georgia but you aren't married there. Got a civil union in California that purports to grant all the state-based rights of a "marriage"? I hope you got great photos of your ceremony but it's not worth the paper it's printed on in scores of states.

The stability and true meaning of the federal constitution's requirement that states respect acts performed in other states is in real peril. If the US Supreme Court can reconcile DOMA with the full faith and credit clause of the constitution and hold that DOMA does not amount to prohibited discrimination, lesbian and gay couples will not be the only people affected.

The real question is what level of scrutiny the Court applies. It is clear that in cases involving racial discrimination, the Court applies "strict" scrutiny which essentially means that the state must show a compelling government interest, typically based on the 14th amendment to the constitution. Challenges to state or federal laws that discriminate on the basis of gender are evaluated under "intermediate" scrutiny, an invention of retired Supreme Court Justice Sandra Day O'Connor. In those cases, the Court generally looks for states to show an "important" government interest in enforcing the law. Most other discrimination cases get the lowest level of scrutiny - a rational basis test where the Court is unlikely to disturb a state's decision so long as it bears some relationship to a legitimate government interest.

If the court were to consider DOMA through the lens of intermediate scrutiny, DOMA should be dead on arrival. The current make-up of the Supreme Court make that possibility remote.

The saddest part of this to me is that the Obama administration is defending DOMA as I write this. President Obama was fairly clear that his religious beliefs lead him to a personal decision that marriage ought to be reserved for opposite sex couples. I don't doubt his sincerity about that belief. Many Americans share the same belief and religion is always front and center as a justification.

The problem, though, is that basing public policy decisions as fundamental as the right to marry the person of one's choice on religious grounds shreds the promise of a government that both respects religious differences but will not favor a set of religious beliefs when crafting public policy. Imagine a law that required all Americans to confess their sins on a regular basis because Catholicism considers it a duty. Even main line Protestants would rightfully bristle at such a requirement. Even a fair number of Catholics would tell the government to mind its own business and leave the requirements of their religion to them.

In an earlier post, I mentioned what most people already know. Barack Obama is a constitutional scholar who taught Constitutional Law at an elite law school. When I finished law school in 1993, it never occurred to me that the current controversy would so rapidly make its way to the US Supreme Court. Perhaps it was the relative youth and focus of lesbian and gay civil rights activists who were dealing with a deadly disease, the almost unbelievable fear of being marginalized if we came out and, except for a few visionaries, thought that the marriage debate was decades away.

I don't think we realized how hard work, honesty about who we are and our current willingness to tell others about our contributions to the success of this country would push these types of issues so much earlier than I would have guessed.

I hope that people who are in favor of DOMA, or are on the fence, or who have a good argument to make on why I should be treated differently on this issue will weigh in. I would like to better understand why this is such a controversy.