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    January 27, 2009

    Throw some gays overboard, again?

    Posted by: Andoni


    Remember the battle last year when the trans members of our community were excluded from the Employment Non-Discrimination Act (ENDA) --- resulting in activists and most LGBT organizations exploding in protest? They argued that it was not right to move forward with federal rights and benefits for some in the community while others are left out.  We have resolved this bitter policy argument by committing that this year when we move forward with employment protections, we will do so only if all members of our community can receive these benefits.

    We face a parallel situation again today -- leaving many in our community behind-- in our quest for federal marriage rights. If we pursue marriage as the sole vehicle to achieve the 1100+ federal rights and benefits for our relationships (the ones that come with opposite sex marriage), we will effectively be throwing gay couples who live in the 30 states with constitutional amendments prohibiting same sex marriage overboard. When everyone else gets marriage benefits, gay people who live in these 30 states will be left behind and get absolutely nothing. They will also have no hope of getting these benefits or protections for their relationships for a very, very long time.

    Repealing the Defense of Marriage Act (DOMA) will bring the 1100+ federal rights and benefits only to couples who live in states that perform same sex marriage (MA, CT) or recognize same sex marriage (NY, RI). Repealing DOMA also gives hope for gay couples in the 16 states that have the possibility of same sex marriage sometime in the future. However, gays in the 30 other states will be completely shut out and left behind.

    This poses a huge problem. If we choose to go forward with a marriage only strategy at the federal level, we are actively choosing to pursue a strategy that excludes a segment of our community-- just as we did to the trans community when we left them behind over ENDA.

    There is a simple and fair solution to this dilemma and that is to pursue a strategy of moving forward with both MARRIAGE and CIVIL UNIONS simultaneously. Pursuing this path is not only fairer, but would result in achieving couples' rights and benefits in all 50 states, not just 20. We would be taking care of our entire community and leave no one behind.

    This solution permits us to pursue the strategy that Evan Wolfson of Freedom to Marry wants as well as the strategy that President Obama outlines for LGBT civil rights on the White House webpage -- at the same time. If we were investing in securities this strategy would be called diversification; it has the benefit of maximizing our protections and minimizing our risks.

    If we pursue marriage and marriage only, here's what it would take to get federal couples rights and benefits to gays in all 50 states:

    1. DOMA must be repealed (or declared unconstitutional) which would result in gay couples in four states getting the federal rights and benefits of marriage, with another 16 possible after some long and hard work in each state. For gays in those 30 states that have inoculated themselves against same sex marriage with constitutional amendments, nothing happens and much, much more would have to happen before they have a chance to see couples' rights.

    2. Next, using the "full faith and credit" clause of the US Constitution, some gay couples will have to get married in (let's say) MA and then go back to (let's say) GA and sue to try to have their marriages recognized there. After many years this would end up in the US Supreme Court and then if we win (a very big if), those 30 states will have to recognize our marriages. This may take 10 years or more. But even after that victory, those 30 states still will not have to perform same sex marriages.

    3. Finally, another lawsuit will have to be filed challenging those state constitutional amendments on the federal "equal protection" clause, to compel those states to perform same sex marriages. This may also take 10 or more years.

    Add this all up and it becomes a generational wait for the unfortunate gay people in those 30 states.

    By SIMULTANEOUSLY going full steam ahead with marriage-- trying to repeal DOMA and get marriage rights state by state in the18 states where it's possible, AND pursuing a federal level civil union strategy as President Obama wants, we can end up with couples rights in all 50 states much quicker; 20 can have marriage and the other 30 who have no hope for marriage, can have civil unions while waiting for the courts or Congress to do the right thing. Another reason we can't forget gays in these 30 states (such as SC, GA, AL, MS, , TX, NV, etc.) is they are the ones who really need some gay rights, arguably more than the people in MA and CT -- although I know that no one group deserves rights more than another. The point is that EVERYONE deserves rights and we shouldn't neglect any subset of our community as we move forward.

    Both Chris and I have blogged on ways to achieve civil unions that would work well for all 50 states, not depend on DOMA being repealed and complement the state by state fight for marriage.

    At this point some clever person might say, but Don, being trans is not a choice, while living in GA is. If the person living in GA wants couples' rights and benefits, they should move to MA. Well that same argument was made about trans people and ENDA last year. Cynics suggested that any trans person who wanted employment protection should move to a state such as NJ or OR where they could have these protections. However, most commentators shouted this argument down saying a person should not be forced to make a geographical move in order to obtain basic rights. So for this discussion I'm going to stipulate that moving is not a valid solution for couples' rights either.

    Finally, I would like to remind you of a really smart move right out of Barack Obama's 2008 presidential campaign playbook. Obama pursued a "50 state strategy" to win. If we go forward only with marriage, we are pursuing a "20 state strategy" because there are only 20 states currently "in play" for marriage. However, if we pursue both marriage and civil unions, we are using a "50 state strategy," putting all 50 states "in play."

    For gay rights, a "50 state" strategy is far superior to a "20 state strategy.

    I firmly believe that true equality comes only after we have same sex marriage coast to coast. That is our ultimate goal, and I am a supporter of marriage equality both politically and financially.

    However the question today is how to get to that ultimate goal fastest while also being fair to ALL members of our community, not just some.The answer is that pursuing both marriage and civil unions simultaneously is the smartest strategy moving forward.



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    1. Lucrece on Jan 27, 2009 7:40:41 AM:

      The repeal of DOMA would actually give momentum to challenges on a federal level in the court system to those amendments.

      Your assessment is also simplistic in that those amendments most often include not only marriage, but any form of relationship recognition.

    1. Andoni on Jan 27, 2009 7:58:34 AM:

      Lucece, federal recognition of civil unions would do nothing within the state and a state constitutional amendment no matter what the wording would do nothing to stop the feds from recognizing the couple as a civil union. State and federal systems are totally independent. Please go back and read my post:

      As to your other comment, I agree. Once DOMA goes, there is momentum. But it still will take quite some time getting rights and benefits to those 30 states. There is no Warren Court today.

    1. InExile on Jan 27, 2009 8:23:04 AM:

      I agree our community should also be pushing for civil unions since civil unions are what the new President has committed to on his website. When the radical right has the opportunity to use the word "marriage" as a weapon against us it seems they usually win by dragging religion into the conversation. Pushing for civil unions effectively takes the "marriage" word out which weakens their argument. But since we now have the marriage debate going on, we must fight for both with the hope of winning something.

      If we are lucky the California supreme court will find proposition 8 unconstitutional which will open up more avenues for us as a community to move forward on both marriage and civil unions.

      With the new administration listing civil unions on its website, I don't understand why groups like HRC are not pushing for just that! The items listed on the Whitehouse.gov website should be the focus for now before they disappear!

    1. Lucrece on Jan 27, 2009 7:30:02 PM:

      There are state benefits, which still would not be recognized. Furthermore, for hospital visitation purposes, a state could point at its amendment in reference to what "spouse" means.

      Then it would be a legal battle as to whether the state will accept federal intrusion.

    1. Andoni on Jan 27, 2009 8:02:06 PM:

      Lucrece, you are correct. There are two distinct set of benefits that go with marriage or civil unions --- benefits from the state AND AS A COMPLETELY DIFFERENT SET, benefits from the federal government. If you are an opposite sex married couple you get both, because the feds recognize the state relationship.

      For gays it gets sticky. At the moment, if you are married in MA or civil unioned in VT, all you get is state benefits. The goal for this group is to repeal DOMA (which would get the MA marriage recognized at the federal level) and then get a federal law that recognizes state civil unions, so the state civil unions get federal benefits too.

      So how do you help gays in GA, SC, AL and those states the don't have marriage or civil unions? You make the federal civil union law recognize any civil union that was legally performed by a state, so the couple from AL can go to VT, get "unioned" and get the federal benefits. This couple would only get federal benefits (social security, joint tax returns, inheriting IRA's and property without tax consequences, immigration rights for partner, etc.). These rights are very important, but are not the state benefits. The state benefits will come only when state changes its state constitution or the US Supreme says those constitutional amendments are unconstitutional. In the meantime, having federal benefits, although no state benefits, is better than nothing. The federal benefits are nothing to sneeze at. Unfortunately, family law is at the state level, so this will do nothing for adoption, children, etc.

    1. Amicus on Jan 28, 2009 12:05:48 AM:

      It seems like you anticipate more resistance to this approach than may exist.

      My hunch - and it is just that - is that it will be far easier to move forward with what you propose, than to hive the "T" from LGBT.

    1. John on Jan 28, 2009 9:04:36 AM:

      Huh. I've disagreed with many of your posts during the last campaign, but this dual approach strategy I can find no fault with. As someone who lives in one of those 30 states (Virginia, to be specific), it sounds far better than the all-or-nothing nonsense that has been used. The results of that absurdity are well-known: just about nothing.

      I remain highly skeptical of the Obama Administration though. I do not believe promises and pretty words anymore, having been burned numerous times by Slick Willie. It's deeds I want to see, not more talk. Passing ENDA would be a good start...

    1. Lorenzo from Oz on Feb 13, 2009 11:31:53 AM:

      Going for what has majority support according to the polls is surely simply sensible. It also provides a response to those worried about the effects, since experience with civil unions builds up the case for full equality.

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