1/11/2009

Winning Hearts & Minds

IMG_3101Image by jessebucksc via FlickrAs I watched the DOMA rally in Phoenix yesterday I realized how badly the LGBT movement needs to frame this debate. The constant stream of platitudes and appeals for people to "understand" or the cutesy anecdotes about friends or family who have "grown" over months or years to "accept" us don't move us one inch closer to real equality.

What was even more strange was the fact that speakers at a rally about equal marriage rights failed to trot out their partners, husbands, wives, spouses or whatever term they preferred during their speech. Our opposition makes sure that they are surrounded by their "families" when running off at the mouth about marriage. Why do our speakers always seem to appear minus the very person who underlines and puts a face on their relationship?

Sure, the stories make great speech filler but in reality, that's all they are. What we need to do is frame this debate and make hard points. Let's face it, not everyone is going to like us. People have had 300 years to get used to the presence of African-Americans and you can certainly still find racisim both overt and covert in our society. Thinking that magically everyone is going to like us simply is irrational and counterproductive. We have got to make points that even our very conserverative law and order opposition will find hard to refute on the merits.

Fortunately, that's not too hard to do. Let's look at DOMA.

The principle section of DOMA deals with Article IV, Section 1 of the United States Constitution. In DOMA the Congress, bizarrely, interpreted this short section called the "Full Faith and Credit Clause" to mean the opposite of what it has traditionally been interpreted to mean. Here's what the "Full Faith and Credit Clause" says as written in the Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Fairly straightforward, isn't it? Congress basically has the right, but not the obilgation to regulate what documentation is necessary to prove a public act or record in another state. Without this little tidbit we'd be 50 separate sovereign entities and every time you crossed a state line you'd have to apply to a new driver's license and get remarried. In other words, traditionally Congress has exercised its authority to insure that records, acts and proceedings in one state are observed in another. In fact just before the DOMA took effect, Congress exercised its authority in the Parental Kidnapping Prevention Act of 1980, which required each State to enforce child custody determinations made by the home State if made consistently with the provisions of the Act; and in the Full Faith and Credit for child Support Order Act of 1994, which required each State to
enforce child support orders made by the child's State if made consistently with the provisions of the Act.

Now, the inconsistency is that Congress with Doma is actually doing the opposite of what it did with these two previous acts and the opposite of what traditionally has been the interpretation of Article 4, Section 1 of the United States Constitution. In other words, Congress decided that they would make a special class of people in the country whose legal public marriages would be treated differently than all other public marriages. While the Full Faith and Credit Clause would apply to "some" marriages legally entered in a state it would not apply to "all" marriages.

So, even Conservatives could see the gerrymandering of our Constitution by Bob Barr and friends back in 1996. Furthermore, they should also be able to see that with the stroke of a pen Congress will be able to pick and choose what marriages it deems fit. Therefore, should Congress decide to it could state that Morman marriages from Utah are not to be recognized outside that state or Scientologists married in California wouldn't be considered married in Texas. (Do Scientologists sanctify marriages? Anyway... off the point.)

Proposition 8 ProtestImage by martineno via FlickrIn effect in 1996 our Congress decided to reverse its traditional use of the Full Faith and Credit Clause to insure compliance with acts and records across state lines for the sake of creating a seamless and unfragmented society and instead decided to create a fragmented society for only one class of people in this country. It was morally and ethically wrong and a sign of the creative reinterpretation of language yet to come with Mr. Clinton and more disastrously with Mr. Bush.

The second part of DOMA has Congress deciding on a definition of the word marriage based on a century old Supreme Court case which calls it "union for life of one man and one woman in the holy estate of matrimony." Notice that word "holy" matrimony. If Congress were to interpret this loose use of language in the past as binding then surely it would also require that everyone, even Atheists, be married by some type of minister, thus negating the concept of Civil Marriage. However, Congress did not do this in DOMA but instead relied upon an antiquated phrase to justify a modern prejudice. It is tantamount to quoting the Dred Scott Decision to justify a current position. Just because the court ruled a certain way in the past does not mean that ruling was not in error under current theory or societal changes.

So, DOMA, a fairly simple law drafted by very simple minds consists of just a few short paragraphs codifying bigotry and tampering with the role of Congress as foreseen by the Framers in Article 4, Section 1 of the United States Constitution. Furthermore it relies on antiquated language to create a "definition" of marriage that does not exist in our Constitution and until this time in Federal law.

Beyond DOMA there are issues that also affect LGBT people and those issues should be tackled. James Madison, writing in the Federalist Papers, warned us of mob rule. Madison felt that one of the greatest threats to individual liberty was a direct democracy whereby people's passions could be whipped up against a minority group or position without adequate debate, sober reflection, and sound judgment. Yet, today we do exactly what Madison warned us not to do. We routinely hold popular votes on Civil Rights. If you don't like a group simply get a "ballot initiative" going and strip them of their rights by popular vote.

This has become so prevelant that the Christian Right uses it as a "get out the vote" gimmick. They know that the ignorant could not care less about their candidates so they put on various anti-gay ballot measures knowing that bigots will come out in droves to vote against us and usually lift the Republican or Right Wing candidate too. Voting on Civil Rights has become a game in this country. That is wrong and it is a perversion of the Democratic process and affront to the men who founded our nation.

In addition to fighting for equality, LGBT Americans must, must, demand that the ballot initiative can never be applied to Civil Rights issues again. We must demand that states or even the Federal government pass legislation or even Constitutional Amendments outlawing the use of the ballot initiative in any matter touching on the Civil Rights of American Citizens. Mob rule has no place when deciding the fates of entire classes of people to enjoy the liberties guaranteed by our nation's great charter.

Even our ultra religious opponents should be able to see the danger to themselves if this is explained well. After all, today it is us. Tomorrow a state could decide it doesn't care the way a minor denomination conducts it affairs and strip those people of the right to marry in their own faith Proposition 8 ProtestImage by martineno via Flickror a church to have tax exempt status or to adopt children. This should be especially troubling for minority denominations in some states such as Mormons, Scientologists, Wiccans, Muslims, etc. What about racial or ethnic minorities? California established that an existing Civil Right can be rescinded by popular vote with Prop 8. So ethnic minorities who feel comfortable should feel uncomfortable at the moment. If they think they are safe because "race" is protected they should realize that with a single day's voting that protected status could be withdrawn and replaced by non-status stripping them of long held rights.

Finally, LGBT leaders need to explain to the world why Civil Unions won't work. Drop the Plessy V. Ferguson and Brown V. Board of Education of Topeka analogies and lay it out. After all, most people have no clue about those cases and their place in the great history of our country.

We should explain that the word "marriage" is needed simply because of the way almost every law relating to property, inheritance, insurance, health, contract law, and benefits is written. If they want us to have "Civil Unions" then it's going to mean changing thousands of laws across the land to reflect the correct terminology. Will they be willing to stop everything for months or years on the Federal level, state level and local level while they read through every phrase in every law and find "marriage" so they can add "civil union" too? Or would it be easier to simply allow LGBT people to "marry" and avoid years of stasis in order to actually fix the problem at the expense of governing the country?

We, as LGBT Americans, must stop this pleading and begging and begin to demand fair treatment. We must stop with the magical thinking and the "Peace and Love" doggeral and engage in substantive debates on the facts. We must stop trying to win hearts and minds by our good behavior and general "niceness" and instead not be afraid to get in the faces of the opposition armed to the teeth with logical arguments that do not rely on tugging the heart strings but rather on dismantling their arguments legally and morally based on the history of our own government and institutions to respond to changing times.

We must stop worrying about opinion polls showing what percentage of the population agrees we should have basic Civil Rights and what portion doesn't. We can have 100% approval ratings but if the laws aren't on the books or the ones on the books aren't repealled it doesn't help us one iota. Likewise, it doesn't matter if 1% likes us if we can get protections in place through other means. We're not running for American Idol here, we're fighting for our lives. Stop worrying about how we're doing in the latest survey of American Households for Christ's sake!

We must focus. We have got to stop all the intellectual masturbation with this Gay pundit or that Gay pundit squaring off to argue with one another over whose version of Black's law dictionary is more up to date and whether "co-opting" the "African-American experience" is counterproductive or insutling. Such drivel gets us nowhere and wastes time and energy that could be better spent making sound and logical arguments concerning the issue at hand, which is guaranteeing that our relationships and persons are afforded the same protections and dignity as every other American.

IMG_3092Image by jessebucksc via FlickrWe have got to stop standing around gaping in awe at lawyers and waiting for them to save us in the courtroom. Hell, if they make it in the door then we need to be outside on the street yelling loud enough for those judges to know if they make the wrong decision there will be Hell to pay. I don't care if that's pretty or nice. I just care that it works.

We must begin to stand up but to stand up in a way that makes people uncomfortable. It's good when mainstream America is a little frightened. When they get concerned they tend to step back and make concessions. Meanwhile, as long as we continue to come to them like whipped puppies whimpering for attention and licking their hands we'll continue to be kicked aside. When our most ardent opponents don't even bother to counter protest when they are less than 400 yards away doing their own thing they don't even consider us a threat anymore.

It's time we got angry. If you aren't angry then something is wrong with you. If you're LGBT and this continued treatment doesn't piss you off and make you want to scream then you have a serious problem.

Look people, "Peace and Love" and all the hippie crap is great. Heck, I love it as much as anyone, but we can go back to all that AFTER this fight. Right now, we don't need pacifists and we don't need pundits, we need warriors. Which are you?


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