Sweet Home Alabama

Trust Alabama to go full-on crazy.

A quick recap.

Since Windsor was handed down just over a year and a half ago, judge after judge has struck down same-sex marriage bans throughout the country (the exceptions being Louisiana, Puerto Rico, and the Sixth Circuit)*.  Some states like Pennsylvania and Oregon quietly accepted the decision and went about their business.  Some officials in other states ranted and fumed and continued appealing to the Supreme Court, but backed down after that failed, even in the most retrograde states like Oklahoma and Utah.

Following the Supreme Court’s clear signal that it had no intention of stopping the lowers courts from striking down marriage bans, even more bans fell.  Arizona, Idaho, Alaska, Montana, North Carolina, South Carolina, Wyoming.  All these states were in circuits that had ruled in favor of same-sex couples, all their bans fell, and the Supreme Court refused to hear any of them.

The Sixth Circuit, in contrast to all other Circuits that heard the issue, upheld the bans in four states and that decision was appealed to the Supreme Court.  While those cases were pending a certiorari decision, a judge in Florida struck down that state’s marriage ban and, although there was a stay, it was finite.  The 11th Circuit would not continue the stay, and then, another shock, neither would the Supreme Court–the first time it allowed a stay to lapse before the appropriate Circuit Court of Appeals heard the case.  That too gave further ammunition of those observers who believed the Justices were preparing to rule in favor of nation-wide marriage equality.

Which brings us to Alabama.  A few weeks ago a federal judge** struck down Alabama’s constitutional ban on same-sex marriage.  The stay was to expire on February 9th, just enough time to allow the state to appeal to the 11th Circuit and, if need be, the Supreme Court.  The 11th Circuit refused to extend the stay, and this morning, as the stay was set to lapse, the Supreme Court weighed in.  Or rather it didn’t weigh in.  The Justices denied the stay request.  This is all the more significant because the four cases out of the Sixth Circuit have been granted cert, and in such cases issuing a stay to other like cases is almost pro forma.  By not acting, the Supreme Court’s message is loud and clear: marriage bans are doomed.  Certainly Justice Thomas (and Justice Scalia) believes that.  In fact what he wrote was that not extending the stay “may well be seen as a signal of the court’s intended resolution of that question.”

Whereas previous negative reactions from state officials to federal courts striking down marriage bans in their states have largely been sound and fury signifying nothing, Alabama has gone completely off the rails.  On February 8th, knowing that the stay in the Alabama case would expire the next morning, the lunatic, fanatical-Christianist, already-removed-from-office-once, state Supreme Court Chief Justice Roy Moore ordered all the probate judges in the state to not issue marriage licenses to same-sex couples.  Officials in 52 of Alabama’s 67 counties have thus far complied with Moore, even though in denying the stay request, the Supreme Court clearly undercut him.  So Alabama is in complete chaos right now.

If this sounds familiar to you, well… obviously.

No doubt the good people of Birmingham, Huntsville, and Montgomery (where same-sex marriages are taking place without problem) are embarrassed and thinking to themselves, “Not again.”  And they can’t even take comfort in Mississippi being an even bigger embarrassment because the decision striking down Mississippi’s ban is currently stayed pending appellate review.  (But if the Fifth Circuit rules in favor of same-sex couples before the Supreme Court does, then we’ll see if Mississippi can out-Alabama Alabama.)

So thank you, Alabama for the needless drama which you will ultimately lose.  Way to shore up that reputation!

Footnotes: 

* The Louisiana decision looks likely to be struck down by the Fifth Circuit, the Puerto Rico decision is pending First Circuit review, and the Sixth Circuit decision will be heard by the Supreme Court this spring.

** Who, fittingly enough, is the granddaughter of Richard Rives of the “Fifth Circuit Four,” four southern federal judges who the vanguard in the legal battle for equality during the Civil Rights Era.

Rewriting History: The Revolution Began In 2008

Recently, The New York Times published an excerpt from Jo Becker’s forthcoming book Forcing the Spring: Inside the Fight for Marriage Equality.  The excerpt in question detailed the end of President Obama’s phony “evolution” in coming to support marriage equality.  Becker’s book however, has set off something off a nuclear reaction of criticism.  I have not read the book, but from all that I have read, that opprobrium is more than merited.

The basic flaw of Becker’s book, which she herself does not deny, is that she either ignores or disregards practically everything about the marriage equality movement prior to the 2008 election when both Obama and California’s noxious Proposition 8 won at the polls.  The heroes of Becker’s book are: (1) a then-unknown political consultant named Chad Griffin who founded Americans for Equal Rights (AFER) to overturn Prop 8 in the courts and later became president of the Human Rights Campaign; (2) David Boies and Ted Olsen, the superstar lawyers who headed up the legal team (hired by AFER) to overturn Prop 8 and by extension bring marriage equality to the whole nation; and (3) Ken Mehlman, the (gay) former head of the Republican National Committee who, along with Olsen, allegedly helped make marriage equality palatable to Republicans–and who was also a major fundraiser for AFER.  According to Becker it was their combined efforts that led first to public White House embrace of marriage equality and then victory at the Supreme Court.

Except, of course, that is not how the story goes.  2008 was an important touchstone, but it is only one part of a larger story that has not been written yet and has not been finished.  In framing her story as such, Becker ignored the entirety of the marriage equality movement, and worse, has slighted its most important architects.  One of those architects, Andrew Sullivan, is outraged, and has posted a great many blog posts to that effect.

Now I am no fan of Andrew Sullivan.  He is myopic, stubborn, self-promotional, and at times downright dishonest.  His continued bashing of the gay left for the resignation of Brandon Eich, rather than say, Mozilla (who got rid of him) or Eich himself (for donating to Prop 8) is more about Sullivan’s political agenda than any kind of passion for free speech.  In Sullivan’s world, the gay left deserves the blame.

Nevertheless, in this instance his reading appears to be absolutely true.  It is because Sullivan is the messenger, probably too many people will refuse to hear his message, and it is a message that needs to be heard.  Becker, for her part, herself did not acquit herself particularly well in her response to the criticism, effectively saying she was not trying to write an overarching history–an about-face from her publisher’s publicity materials and even her own writing.  What Becker’s critics (including Sullivan, Nathaniel Frank, Chris Geidner, Isaac Chotiner, Gabriel Arana, Dan Savage, Frank Rich, Jim Messina, John Aravosis, Michelangelo Signorile, Noah Feldman, and many others) have pointed out is that Becker disregarded or ignored the marriage equality movement’s most important activists and touchstone moments while propping up the lesser lights of the Prop 8 team to whom she had full access.  Among the disregarded include Evan Wolfson, Mary Bonauto, and Sullivan, as he himself was quick to note.

But Sullivan, despite being correct, engaged in a little revisionism of his own.  Yes, it is true that his 1989 cover story for The New Republic was a major statement, particularly as he made a conservative case for marriage equality, and yes it is also true that many gay people criticized him (and Wolfson), sometimes especially viciously, for advocating marriage rights.  But Sullivan’s rants make it seem like marriage equality was his brainchild, born in 1989, and aided in part by Wolfson (a staunch liberal) and some other gay conservative and libertarian thinkers.  Sullivan was by no means the first person to make the case for marriage equality; same-sex unions have existed around the world throughout recorded history.  In fact, a little over a month after Sullivan wrote his cover story, six same-sex couples in Denmark entered into the world’s first registered partnerships, which was like civil unions but without child custody rights.  As the New York Times noted at the time, registered partnerships in Denmark were the culmination of “a 40-year campaign by gay rights advocates.”  (Full marriage equality did not come to Denmark until 2012.)  While it is tempting here in the United States to think that the rest of the world follows our lead on LGBT rights because of Stonewall and such, the truth is that the movement for gay rights and same-sex marriage was a central European (re: German) innovation.

Even in the United States, the push for same-sex marriage did not start with Sullivan or even Wolfson, whose 1983 law school thesis was about marriage equality.  (Wolfson was probably the most unfairly maligned figure in Becker’s book, tarred as a reactionary and an obstacle to progress, when the truth is that no one has been more important to the success of the marriage equality movement.)  In truth, even Wolfson was late to the game.  In 1970, Richard John Baker and James Michael McConnell tried to get a marriage license in Minnesota and were tried.  They appealed their case all the way to the United States Supreme Court, who turned it down for “want of a substantial federal question.”  (Although Minnesota now has marriage equality and clearly the Supreme Court has recognized that there is a substantial federal question involved, Baker and McConnell’s case, Baker v. Nelson, was not explicitly overturned and still lurks in opposition briefs in marriage equality cases.)  Other same-sex couples in the 1970’s also tried to get marriage licenses with no more lasting success.

The most important motivating factor in the battle for same-sex marriage however, was not a person but an epidemic–a fact that no one involved in the marriage movement would deny.  When the AIDS pandemic hit in the early 1980’s, it was seen as a gay disease; the original name was not AIDS, it was GRID–Gay Related Immune Deficiency.  The AIDS epidemic was therefore treated not as a health crisis, but as a moral judgment on a deserving population of degenerates.  (Never mind that other populations were also suffering.)  The lack of legal protections for couples became immediately and horrifically apparent.  Two men who built a life together learned that the law did not protect them when the worst hit.  Same-sex partners were denied hospital access to their dying lovers, often by spiteful, homophobic family members.  Survivors were thrown out of their homes, and their assets were seized.  (Those who now call gay people bullies?  They were the ones who remorselessly threw same-sex partners out in the streets.)   It was out of this mass tragedy, not Prop 8, that the marriage movement took on an urgency that is only now coming to fruition.  There were major setbacks along the way, most famously DOMA in the 1990’s, and the slew of state constitutional bans that followed, particularly in the 2004 elections.*  Nevertheless, despite the worst backlashes, it was clear to all but the most pigheaded reactionaries that progress was marching only forward, just longer than hoped.  This was not a movement that had lost its way as Becker would have you believe, but one that was steadily influencing the law and public opinion to get to the point where a federal court challenge was feasible.  And until 2003, the movement labored under the shadow of Bowers v. Hardwick, a reminder of the dangers of a Supreme Court setback.

To disregard all this, to treat Evan Wolfson, a man who devoted most of his professional life to the cause of marriage equality, so disdainfully, to nearly ignore Mary Bonauto,** in favor of Griffin, Boies, and Olsen is both shameful and misguided.  Let us not forget that Prop 8 was not a resounding victory for marriage equality; it was a limited case won on a technicality and will be forever overshadowed by its immensely more important companion case United States v. Windsor, which Becker astonishingly downplays (Signorile claims that Becker threw Edie Windsor and her attorney Roberta Kaplan under the bus).  Getting back California was a big win, but it was nowhere near the “marriage everywhere” decision that AFER had promised.  Windsor, on the other hand, (and I cannot say this enough) is the most significant civil rights decision since Brown v. Board of Education.  Around the country, every federal court decision about marriage equality orbits around Windsor.  In that sense, Olsen and Boies dramatically failed.  Even now, it is entirely likely that Boies and Olsen will not be first in the race back to the Supreme Court, as they are focused in Virginia and the cases in Utah and Oklahoma are much more likely to get there first.  (I linked to Feldman’s piece above, and it is worth linking to again to note how risky a game Boies and Olsen played, and how we can only hope they don’t get a second bite at the apple.)

So as easy (and tempting) as it is to Sullivan, he is absolutely correct that Jo Becker’s history of the battle for marriage equality is access journalism of the worst kind.  Griffin, Olsen, and Boies gave her the unfettered access, and they are the ones who are lionized.

Footnotes: 

*  I once went to hear Dan Savage speak, something I recommend everyone should do, and someone asked him whether Ken Mehlman has done enough to be forgiven for his part in the 2004 elections.  Savage equivocated during the course of his answer moving from “not yet” to “yes,” which shows how much ambivalence Mehlman engenders in the LGBT community.  For my part, no matter what Ken Mehlman does, no matter how many times he apologizes, no matter how much money he raises for AFER, no matter how many Republican politicians he talks to, I will never forgive him for his part in 2004.  He exploited fear and hatred of gay people in order to make the world a worse place for everyone.  Sometimes an apology, no matter how sincere, can’t undo the damage.

** I greatly admire Mary Bonauto, who has proved time and time again to be the most important LGBT rights attorney in the country.  Bonauto brought the LGBT rights movement its first two important, permanent legal victories in Vermont (civil unions) and Massachusetts (marriage).  Bonauto and her organization Gay & Lesbian Advocates & Defenders (GLAD) were involved in every single marriage equality triumph in New England, including wildly successful challenges to DOMA that were concurrent with Windsor.  In fact, had Elena Kagen not overseen the Justice Department’s response to the DOMA cases in the First Circuit, we might today be extolling the virtues of Gil rather than Windsor.  The Supreme Court chose Windsor, a legally–if not factually–identical case, because all nine Justices would be present.  Bonauto did play an important part in Windsor; she coordinated the amicus briefs, which meant that she was heavily involved in Supreme Court strategy.  Having said that however, Bonauto is not–as some people refer to her–the Thurgood Marshall of the LGBT rights movement, despite the fact that she is the movement’s most important legal figure.  This is a statement which misunderstands the history of the Civil Rights movement and makes a false analogy.  The Civil Rights movement was a decades long, well-structured, campaign that ran almost entirely through the NAACP and its autonomous-in-name-only legal arm the Legal Defense Fund (the two entities are now completely separate).  As head of the Legal Defense Fund, Thurgood Marshall was the central figure of the movement’s legal strategy, especially at the Supreme Court where he personally argued multiple cases.  A somewhat better analogy is in the (non-abortion) gender equality cases of the 1970’s, which ran through the ACLU’s Women’s Rights Project.  As head of the Women’s Rights Project, Ruth Bader Ginsburg shaped the movement and its direction.  GLAD however, is one of several LGBT rights organizations and, unlike some others, limited to a geographic region (New England).  Although groups like GLAD, Lambda, and the ACLU may work in tandem, there is also a competition between them, which Ariel Levy discussed in her New Yorker article about Edie Windsor.  There is no Thurgood Marshall (or Ruth Bader Ginsburg) of the LGBT rights movement.  This is not a knock on anyone, it is a recognition of the LGBT movement’s decentralization.

Marriage Momentum: Valentine’s Edition

Last night, Judge Arenda Wright Allen, a federal district court judge in Virginia, struck down that state’s ban on same-sex marriage.  It was a forceful opinion, finding that such a ban could not withstand scrutiny under the full force of the 14th Amendment’s Due Process Clause, nor a less exacting rational basis review under the Equal Protection Clause.  If you don’t understand this legal jargon, that’s okay.  Just know that the opinion is quite powerful, very pro-marriage equality, and is not outside the legal norm.

Like earlier decisions in Utah and Oklahoma, the one from Virginia is a grant of summary judgment, which means the judge decided that a trial was not necessary.  In fact, the judge had asked the parties if they felt oral argument on the motions was necessary (they did).  The fact that such a long opinion came down so quickly after oral argument suggests that the opinion had been worked out prior to oral arguments.

Witness again the power of United States v. Windsor.  I have said over and over again that this is the most important civil rights case since Brown v. Board of Education.  When Windsor struck down DOMA, the federal government was forced to recognize same-sex marriages.  All sort of federal rights that were previously denied to same-sex couples have been granted.  Also following Windsor, two state high courts, New Jersey and New Mexico, mandated marriage equality in their respective states.  But the real promise of Windsor is what is happening now; the federal judiciary has been unchained.  Prior to Windsor, federal judges would have hesitated to make sweeping rulings about marriage bans.  Even the trial and appellate decisions in Prop 8, the lone marriage case brought before the federal judiciary, were measured.  But post-Windsor, the flood gates have been opened.  The opinions issued have not just been favorable, they have been overwhelmingly forceful.  Moreover, these are not just happening in so-called blue states.

Here is a round-up of all the federal cases that have thus far been decided and which will all probably be ready to go to the Supreme Court in the 2014-2015 term.

1. Utah – A federal judge struck down the marriage ban.

2.  Oklahoma – A federal judge struck down the marriage ban.

3.  Ohio – A federal judge held that the state must recognize a valid same-sex marriage performed in another state for death certificate purposes (and implied that the marriage ban is unconstitutional).

4.  Kentucky – A federal judge held that the state must recognize same-sex marriages validly performed in other states where they is legal (and implied that the marriage ban is unconstitutional.)

5.  Virginia – A federal judge struck down the marriage ban.

6.  The Ninth Circuit – As always, the Court of Appeals for the Ninth Circuit is ahead of the curve.  In a case between two large pharmaceutical companies seemingly unrelated to marriage equality, the Ninth Circuit held that a gay juror cannot be removed by a peremptory challenge on the basis of his sexual orientation (just as one cannot be removed for race or gender).  Although there is nothing in the case about marriage, this is an extremely important decision for the marriage equality movement.  The Ninth Circuit held that sexual orientation is a protected class and thus deserves heightened scrutiny under the Equal Protection Clause of the 14th Amendment.  Which means that any law that discriminates against gay people has a high bar to meet in order to prove its legality.  No marriage ban can meet that standard.  After the gay juror decision, Nevada’s Attorney General (Democrat) and Governor (Republican) withdrew from the defense of their state’s ban.  The Ninth Circuit will hear that case shortly.  When Nevada’s ban falls (and it is a “when” not an “if”), the bans in the other Ninth Circuit states will also have to fall.  By my count that will apply to Montana, Idaho, Arizona, Alaska, and Oregon (if that state’s ban is not already overturned at the ballot box in November).

Which means that at least one, but more likely several, of these cases will be back at the Supreme Court in the next term for the final showdown.

Happy Valentine’s Day!

And Utah Makes 18. Wait… What?!?

Yesterday as I was leaving the gym, I received a phone call from my boyfriend (herein “BF”) which, to the best of my recollection, went as such:

Me:  Hello.

BF: Have you heard the good news out of Utah?

Me (not understanding what possible good news could come out of Utah):  What good news?

BF: A judge struck down their marriage ban.

Me:  Holy [expletive]!  What?!?

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Yesterday, Judge Robert J. Shelby, a federal trial judge in Utah, struck down that state’s constitutional amendment banning marriage.  The opinion in Kitchen v. Herbert is nice to read, in no small part due to the many judicial raspberries blown in the direction of Supreme Court Justice Antonin Scalia, whose shrill dissents in Romer, Lawrence, and Windsor, belie his own deeply felt homophobia.

It is important to recognize that this is the continued aftereffects of Windsor.  I say it a lot, and I mean it every time.  This is the most important American civil rights case since Brown v. Board of Education, and the ramifications are just beginning to be felt.

The decision went into effect immediately as the Court did not issue a stay.  As such most counties began to issue marriage licenses right away.  The state is asking the Tenth Circuit Court of Appeals for an emergency stay, but by this point a number of same-sex couples have already gotten married.  Should a stay be granted (or even if it is not), the events of yesterday create several questions in the immediate future.  How will Utah process legal same-sex marriages from other states?  Will the federal government recognize these new Utah marriages without Supreme Court imprimatur?  If so, will it continue to recognize these marriages should the Tenth Circuit either (a) issues a stay or (b) overturn Judge Shelby’s opinion?  Would those marriages even be legal if the opinion is overturned?  Is it possible that the federal government will recognize these marriages as valid next year and not the year afterwards?  If so, would that mean for taxes, health insurance, immigration rights, etc.?  Would a green card that was issued for a same-sex spouse be cancelled?

I ask these questions because most of the press coverage I have seen has focused on the momentousness of the occasion (Utah?!?!) rather than the practicalities of the case.  Which in a way is great because it gives me something fresh to write about.  And there is a lot to write about.  Kitchen v. Herbert, which will be Herbert v. Kitchen in the Tenth Circuit, is an extremely important case for a single, solitary, simple reason.  It is the first federal case post-Windsor to strike down a state ban on marriage equality.  Not the first ever, of course.  Concurrent with Windsor was the Prop 8 case, Hollingsworth v. Perry.  The difference between Kitchen and Perry is that the California state government refused to defend the case, and thus the Supreme Court could dodge Perry‘s central issue–the constitutionality of same-sex marriage bans–in favor of standing.  Utah’s state government will defend this to the end, which means Kitchen‘s final destination is most likely the Supreme Court.  I suspect that it will be before the Supreme Court in the 2014-15 term; mark your calendars.

The Kitchen decision came down quickly because it was a grant of a motion for summary judgment for the gay and lesbian plaintiffs.  If you have been reading this blog, this might sound familiar.  It should.  A few months ago, a trial judge in New Jersey also granted summary judgment and ordered the state to issue marriage licenses to same-sex couples.  She too refused to stay her decision.  The Christie Administration’s appeal of the denial of stay resulted in an epic judicial smack down from state Supreme Court.  Officially the Supreme Court did not reach the merits of the case (whether New Jersey law required complete marriage equality).  Nevertheless, a unanimous Court told the Administration that they would lose and lose big.  The Administration withdrew the appeal.

I said it then, and I will say it now.  Granting a motion for summary judgment is a big deal because it means denying one side the right to a trial.  Summary judgment effectively means that the case is so one-sided, a trial is a waste of resources.  The fact that a state constitutional amendment (passed by popular referendum no less) was struck down through summary judgment is particularly shocking.  Even the Prop 8 case went to trial.  But in a post-Windsor world, everything has changed.  (I should note though, that there will be trials coming up, including one in Michigan where summary judgment was denied.)

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The actual legal reasoning in the case is quite strong, although I would have preferred a better Equal Protection ruling (“rational basis with bite” needs to be retired to the Constitutional Law dustbin), but at least there was an Equal Protection ruling in favor of the plaintiffs.  Mark Joseph Stern noted on Slate that the ruling out of New Mexico from the day before is much stronger, although that one was based on state law.

The real meat of the Kitchen decision comes from the Due Process analysis, which is a consideration of the right to marriage.  As such Loving v. Virginia, the aptly-monikered case that struck down bans on interracial marriage, is the controlling precedent.  The Court swept aside (finally) Baker v. Nelson from the 1970’s.  Given all the changes in the laws since Baker, it is amazing to me that anyone would still think that case is good precedent.

One by one, Judge Shelby shot down all of the state’s arguments.  Same-sex couples are not seeking a new right; marriage is not just about controlling procreation; tradition is not a good enough reason to deny a fundamental, individual right; marriage equality will not harm children and it will not stop heterosexual couples from marrying.  The parade of horribles marched past an unreceptive crowd.

Two days ago, I indicated that it was time for the federal courts to get involved.  I had no idea though that just one day later a federal court would strike down one of the most ardently anti-equality amendments in one of the most staunchly conservative states.  This is the beginning of the flood.  From here on in, the federal courts will strike down these marriage bans one by one, until Windor‘s implicit promise, full marriage equality, is granted by the Supreme Court.

Following The Supreme Court Decision In The DOMA And Prop 8 Decisions

Hopefully I can write a more thorough post after reading this opinions in full, but for now.  
 
1. The federal government has to recognize all same-sex marriages in states that offer them.
2. This means the immigration bill is by default going to have to recognize these couples.
3. It also means gay couples in the states that offer same-sex marriages have all the federal rights and responsibilities of marriage (including joint taxes).
4. Those states that currently offer marriage to same-sex couples are Massachusetts, Connecticut, Iowa, New York, Vermont, New Hampshire, Washington, Maryland, Maine, the District of Columbia.
5. And within the next few months this list will include Minnesota, Delaware, and Rhode Island…
6. And California.

Will Portman, Matt Salmon, and Me

I fear it is a sign of advancing age that I can remember back to 1996 (and the preceding Dark Ages) when the debate over marriage equality began in earnest and only one Senator–Ron Wyden–openly spoke out in support.  Two others–Ted Kennedy and Carol Mosley-Braun–also supported marriage equality but in a more circumspect manner.  Of those original three, only Wyden still serves in the Senate.

Over the next fifteen years, support for same-sex marriage in the Senate grew slowly; before 2011 only 15 Senators, Democrats all, supported it, although LGBT activists suspected, as they did with President Obama, that many more Senators secretly supported the cause.  Understanding that a craven but Democrat-controlled Senate would be far more beneficial to the LGBT cause than a Republican-controlled Senate, LGBT organization chose not to rock the boat–often to the consternation of the larger and more impatient LGBT community.

In the past two years, and especially since last November, Senatorial support for marriage equality has exploded.  As of the time of this writing, 54 Senators–over half the Senate–support pro-marriage equality legislation.  This no doubt due to the confluence of several factors: (1) consistent polling data showing that a majority supports marriage equality; (2) President Obama’s high-profile endorsement of same-sex marriage and his subsequent reelection; (3) the embrace of marriage equality in the Democratic party platform; (4) the election of Tammy Baldwin the first openly gay Senator; and most importantly (5) the referendum victories in Maine, Maryland, Minnesota and Washington.  From hereon in, for most Democratic Senators (and all future serious Democratic Presidential candidates) it is far more dangerous to oppose same-sex marriage than to support it.*

Surprisingly, of the 54 Senators who favor marriage equality, two are Republicans.  Mark Kirk of Illinois, whose prior voting record on gay rights issues included a vote against repealing Don’t Ask Don’t Tell, issued a very simple but powerful statement: “Same-sex couples should have the right to civil marriage.  Our time on this earth is limited, I know that better than most.  [Kirk recently recovered from a stroke.]  Life comes down to who you love and who loves you back–government has no place in the middle.”

Before Kirk announced his support though, Rob Portman of Ohio changed his mind to support same-sex marriage.  To say that his announcement was a great shock is an understatement; his voting record on LGBT rights was abysmal.  Portman, a candidate to be Mitt Romney’s running mate, announced his support for same-sex marriage in an editorial in which he explained how he came to that position.  Two years ago his son Will came out to him, and Rob Portman came to understand that by opposing marriage equality he was hurting his own son.

The response to Portman from the political right was–predictably enough–outrage.  The response from the left however, was more complicated.  Most of us celebrated Portman for his change of heart.  Disappointingly though, there was a lot of anger toward Portman coming from some influential corners.  Dan Savage, wrote that the true hero of the story was Will Portman, a correct enough statement, misguided in the implication that Rob Portman’s actions are somehow less than meaningful.  The argument of Portman critics such as Savage, Paul Krugman, and Matt Yglesias goes something like this:

Rob Portman, like most/all Republicans, lacks empathy.  He was able to comprehend the issues facing gay people only because his son is gay.  Therefore, if someone he loves doesn’t have that problem (such as poverty), Portman has no capacity for empathy.

I acknowledge a grain of truth to this criticism.  Will Portman will never suffer poverty or employment discrimination (the Senator still does not support ENDA), a benefit of being a Senator’s son who attends Yale.  Nevertheless, Savage, Krugman, and Yglesias are flat-out wrong.  Rob Portman changed his mind about marriage equality because someone he loves is gay, and that exemplifies exactly why the central message of the gay rights movement has been a call for gay people to come out.  Rob Portman should be celebrated; he is proof that we change our loved ones’ minds by coming out.

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Following Portman’s announcement, Representative Matthew J. Salmon (R-AZ) commented on television that he too had  gay son, but unlike Portman, he did not support marriage equality.  Claiming his son Matt was “by far one of the most important people in my life,” Congressman Salmon said, “I love him more than I can say.  It doesn’t mean that I don’t have respect, it doesn’t mean that I don’t sympathize with some of the issues.  It just means I haven’t evolved** to that stage.”  Salmon’s statement set off a deserved wave of criticism, but one person who supported him was his son Matt.  (To avoid confusion, the father will be referred to as “Salmon” or as “the Congressman” and the son as “Matt”).

It is impossible to judge another man without walking a mile in his shoes; I acknowledge I do not know Matt’s journey.  I cannot judge him, especially about something as intimate as his relationship to his parents.  Nevertheless, it is nearly impossible to watch his gut-wrenching “It Gets Better” (IGB) video, or read the often-harrowing Phoenix New Times account of Matt and his former partner Kent Flake, and not recoil in horror from the emotional hell his family created for him.

The gay activist and writer Michelangelo Signorile wrote a scathing indictment of Salmon who, along with his wife Nancy, was actively involved in the (failed) 2006 campaign to ban legal recognition of same-sex relationships in Arizona.  Nancy headed the campaign and involved Matt.  This is after he came out to her.  (He was in reparative therapy at the time, and he voted in favor of the ballot measure.)  In his IGB video, Matt said that his mother did not get involved in the later, successful 2008 ballot measure, so I suppose that is some progress.

Signorile is a loud, abrasive, and overly opinionated writer and activist.  In this instance however, he is absolutely correct.  The damage that the Salmons did and still do to their son is incalculable whether or not he admits it (whether or not he can admit it).  Signorile writes:

Those parents who do not move on the issue, who reject their children, either by literally throwing them out of their homes or by saying, “I love you, but I don’t accept your ‘lifestyle,'” are putting themselves above their children. For young people in that situation, living as second-class citizens in their own families and fooling themselves into thinking that their parents love them (because they so much want that love from their parents) while allowing their parents to quietly condemn them each and every day, even as they grow into adulthood, the rejection eats away at their self-esteem.

For whatever reason–politics, religion, old-fashioned bigotry–the Salmons do not fully embrace their son.  The Congressman may say that Matt is “by far one of the most important people in my life,” yet his actions show that Matt is not important enough.  If a parent loves his child unconditionally, then there are just some sacrifices the parent has to make.  Belief in one’s own self-righteousness is one of them.

Recently, Matt defended his father on a local Phoenix television station and again on CNN.  He insisted that his father loved him and was not an anti-gay bigot.***  These interviews however, are far from convincing.  Despite claiming that his relationship with his father was never stronger, the hurt, young man who nearly broke down into tears on his IGB video was very much apparent.  Matt tells us that his father loves him, but his answers to reporters’ questions show a contrary picture.  He neither defends (or even explains) his father’s homophobic votes in Congress nor disputes the image of his family from the Phoenix New Times article.  In the local television interview, Matt’s real revelations were (1) a near admission that he regrets that his dad is not like Rob Portman; and (2) the lowest point in his relationship with his father was when Matt left reparative therapy–which all reputable medical and mental health associations consider insidious and harmful junk science.  Worse, when asked if his parents would come to his (theoretical) wedding, Matt said, “I’m not going to lay that burden on them, but I hope that they do.”  That is the response of something who doesn’t want to admit the real answer is no.  Watching Matt is like watching a helpless captive.  On CNN, Mat said that in order to get his parents to respect his views, he had to respect theirs.  No, no, no!  Their views are that he is less of a person and his love is less meaningful than theirs.  That is a view worth fighting not respecting.

I am sure Matt would not want me to pity him; most likely he would resent for doing so.  Yet after watching this interview, I feel nothing but the most profound pity for him.  He does not know unconditional love, and he is clearly not in a place where he is strong enough to cope without it.  Therefore, he lets his parents emotionally batter him, his father especially so.  Matt should never have appeared before the cameras; it was his father who dragged him into it.  By talking about Matt on national television, the Congressman turned his son into a shield against completely correct charges of homophobia.  He made Matt protect him rather than the other way around.

~*~*~*~*~*~*~*~

Growing up gay in suburban Philadelphia was not as difficult as in some locations; I imagine I would have had a much more difficult time in places like rural Mississippi or inner-city Detroit.  Nevertheless, I did not escape unscathed.  I grew up in the era when AIDS was still “the gay cancer.”  The Defense of Marriage Act was passed and signed into law as I left high school for college.  I knew no openly gay adults, but I knew plenty of homophobes.  In those days I was in deep denial–praying every night for God to make me “normal.”  It didn’t work.

I came out at age 19, late by today’s standards but not so late in the mid-to-late 90’s.  Coming out was a traumatic experience, so much so that I could not even say “I’m gay” to the first person I told.  Being able to say the actual words for the first time happened days afterwards.  The next month I told my parents.  My father was surprised, but relatively supportive.  My mother was neither supportive nor surprised.  She told me she would never be able to reconcile herself to my being gay; a decade and a half later, she has kept her word.  We still speak, but her refusal to support me has damaged our relationship, probably irreparably.

I have a friend who recently married his long-time partner in a state where same-sex marriage is legal.  My friend’s parents knew his partner and treated him well.  When the wedding invitation arrived however, my friend’s parents wrote to him to tell him that they would not attend.  They said that although they tolerated his homosexuality, and felt they had been very good about doing so, approving of his marriage by attending was a bridge too far.  My friend was crushed by the knowledge that his parents refused to see his marriage as anything other than a “marriage.”  Their message was that they believed his relationship to be a camp spectacle–a parody of heterosexual love.  My friend stopped speaking to his parents.

I thought of my mother and my friend as I watched Matt’s interviews.  Whether Matt abandons his parents or stays but with the understanding of the limits of their love is not for anyone to judge.  Matt deserves sympathy, empathy, compassion and support.  I understand Matt Salmon’s pain because I wonder, as he must also, why I don’t deserve the love Rob Portman has for his son Will.

Footnotes:

*  I did not mention the House of Representatives, and with good reason.  Because there are 435 of them and because they represent ever-changing electoral districts, the number who support marriage equality is bound to be skewed by factors such as a redrawn (gerrymandered) Congressional map rather than a true representation of the nation.  What is important at the moment is that there are six open LGBT members of the House.

**  I hate when politicians who claim not to support same-sex marriage use the word “evolve.”  Evolution may be the slow process of adaptation to an environment, but in modern usage, to evolve to get to a more advanced (i.e. better) state of being–as in “we evolved from simple single-celled organisms to complex multicellular ones.”  Therefore, the word “evolve” actually denotes that supporting marriage equality is the morally correct position.  When President Obama said he was evolving, it was seen as a coded message, and it is now when Lisa Murkowski, the (Republican) Senator from Alaska says it.  This brings up the obvious question however: If you understand that supporting marriage equality is morally correct then why aren’t you already supporting it?

***  There are two conflated issues here that must be separated: (1) Congressman Salmon’s love for his son; and (2) Congressman Salmon’s alleged homophobia.  They are not mutually exclusive and should not be treated thus.  The Congressman may love his son more than anything in the world, but that is not a defense against blatant homophobic actions.  The entirety of the American LGBT populace suffers from his regressive votes in Congress, and that is not negated by a personal connection as Matt may want to believe.  One judges a person’s character by their actions far more than by their personal connections.