The End of DOMA, and Being Haunted

When I was 11 or 12 years old I realized I had a terrible secret. I was attracted to other boys. I would develop these intense crushes: a handsome black-haired classmate in middle school, a kid at sleepaway camp the summer I was 12. I wasn’t sure what I was feeling; all I knew was that I felt it, and nobody else did. There was something wrong with me. I tried not to worry about it too much; I just hoped that it was temporary, and that at some point before I became an adult it would go away and I could be normal and get married. But I continued on through middle school and into high school, and it didn’t go away. I started to worry. I decided I must be cursed. My life already seemed bad enough: I was a nerdy, grade-skipping outcast, and yet not academically perfect enough to please my parents. And I hated my Jewish afro hair. On top of all that, why did there have to be this? Why did this alien presence choose to infect me and make me fall in love with boys?

It was the mid-/late 1980s. All I knew about gay people was that they got AIDS and went to hospitals where they wasted away and died. I remember once I heard my mom refer to someone derisively as a “frustrated homosexual.” And one day I came across a copy of a book called Everything You Always Wanted to Know About Sex (But Were Afraid to Ask). It was published in 1969, and it said horrible things about gay people. I didn’t want to turn out like the people in that book. I became even more terrified.

At 19 I told my parents I liked guys. They got mad and said it was not acceptable. So a couple of days later I went back in the closet, to them and to myself. Then I had five agonizing years of mental gymnastics as I tried to figure out what I was, until finally, at age 24, I decided, fuck this — it’s never going away, this is who I am, and I just want to be happy. So I stopped agonizing, accepted that I was gay, started dating and having sex, and the next year, at age 25, I told my parents that I was sure this time, that I really was gay. They were very upset for a few weeks. It was painful for me. But they eventually came around.

Since yesterday morning, when the Supreme Court struck down section 3 of DOMA, I’ve been thinking a lot about my past — mourning it, in fact. I’ve been wondering if I would have been a happier, less scared kid if I’d grown up in a country where gay people could get married, where I could have read an opinion by a justice of the United States Supreme Court recognizing the dignity not just of gay couples’ relationships but of gay couples’ marriages, where my country’s government treated those marriages with the same respect they treated my parents’ marriage and my aunt and uncle’s marriage and my grandparents’ marriage and the marriages of every other adult I knew. I wonder if my parents would have been more accepting of me if they’d raised me in that world. I wonder if they would have thrown away that old book. I wonder if I would have come out sooner, started dating sooner, had sex sooner, gotten more relationship experience sooner.

I’m so envious of gay kids today, and gay teenagers, and gay college students, and gay people in their 20s, for living in a different world from the one I grew up in, just as I’m sure many older gay men are envious of me for growing up post-Stonewall and coming of age in an era when the world knew already about HIV and how to protect ourselves from it. Just as every generation is envious of people who are younger than them.

I was already 22 and out of college when the Supreme Court first spoke up for gay rights in Romer v. Evans. I was already 29 when the Court first said in Lawrence v. Texas that I have dignity as a gay man. I was 37 when the state where I lived said I could get married. Now I’m 39, and I’m getting married to Matt in a few months, and my national government will treat us the same way they treat every other married couple.

In a way it feels very scary and “adult.” We’ve been able to get married for the last two years, but it always seemed like it would be somehow pretend, like playing at marriage: “skim-milk marriage,” as Justice Ginsburg wonderfully put it. But now we’ll be filing taxes jointly, and be eligible for spousal Social Security benefits, and have all the federal as well as state responsibilities of marriage, just like my parents, and my brother and his wife, and Matt’s parents, and all the straight married couples we know. Just like everyone else.

The Supreme Court’s decision yesterday was not the end. Thirty-seven states still tell gay couples they can’t get married. But we are closer to justice than we were yesterday. I see it as one of those pictures where your perception shifts between positive and negative space. Before yesterday, there were 12 islands of marriage equality in a vast sea. But now there are 37 islands of marriage discrimination. Now that the U.S. government recognizes same-sex marriages, the discriminatory states are the outliers, no matter how many there are. That shift in perception is crucial.

I’m happy I’m still young enough to live in this world. I’m happy I’m going to get married.

And I’m happy for all those gay kids who get to grow up in a different world from the one I grew up in.

Thoughts Before the Supreme Court Rules

Getting my thoughts down before the Supreme Court releases its decisions on DOMA and Prop 8 in just over an hour.

I slept badly last night. I fell asleep around 11:30, woke up around 3 a.m., took a four-hour sleeping pill but didn’t actually fall back asleep for another 40 minutes, then woke up again at 5:30. (So much for modern medicine.)

At least we know it’s coming this morning. That’s better than the last few days of watching and waiting.

It’s been a nutty 24 hours in American politics. The Voting Rights Act got eviscerated and Texas almost effectively outlawed abortion last night. I wish the United States were a normal country.

I feel a little selfish that I’m worried about DOMA when I have friends in California who can’t even get married in the first place. But Prop 8 is toast no matter what happens — if not now, then in the next couple of years via the ballot. Which is a long time to wait, but not as long as we’ll have to wait to get rid of DOMA if the Supreme Court does nothing about it this morning. The gerrymandered Republican House means that DOMA isn’t going away anytime in this decade without judicial intervention. A skim-milk marriage is better than no marriage — but we deserve full equality. I will be extremely sad if the Court lets DOMA stand.

The last day has reminded me that we live in a deeply flawed country in an imperfect world. But I still have hope that no matter what happens today, things will eventually turn out right. It will require work. But things will work out.

Still, Justices of the Supreme Court: do the right thing this morning.

What Happens After DOMA? (Cont’d.)

If anyone is interested in digging further into the post-DOMA issue I mentioned yesterday — whether the federal government would have to recognize a marrage validly performed in New York if the couple actually lives in Arizona — I found a law review article about it.

The article is long, as most law review articles are, but basically, the answer is: nobody yet knows how this would work.

The article goes deep into the weeds about conflict of laws. (Yay civil procedure!) In short, the author says that either Congress or the federal courts should make a uniform rule: either (1) the federal government should recognize a same-sex marriage if it was valid where performed, or (2) the federal government should recognize a same-sex marriage if it is valid where the couple currently lives.

Just because there would be confusion does not mean DOMA section 3 should not be overturned. Conflict-of-laws issues come up in family law all the time. And at any rate, there will be confusion as long some states refuse to recognize legal same-sex marriages performed in other states.

The DOMA Oral Arguments

When Matt and I get married this fall, will we just have a skim-milk marriage? Or will our country’s government treat us equally?

Today’s oral arguments in the DOMA case leave me cautiously optimistic — moreso than yesterday’s Prop 8 arguments. There seems to be a consensus among the experts that DOMA Section 3 is doomed, precisely and only because Justice Kennedy evidently believes that it violates the power of states to define marriage. Only four justices (Ginsburg, Breyer, Sotomayor, Kagan) appear willing to overturn it on grounds of equal protection; Kennedy would provide the crucial fifth vote.

Roberts and Scalia also brought up federalism, but in a curious way. They asked: if the federal government is not allowed to exclude same-sex couples from the federal definition of marriage, does that mean it’s not allowed to include them, either? Wouldn’t that, too, violate states’ rights to define marriage? And if it is okay for the federal government to include them, then why isn’t it okay for the federal government to exclude them?

It was an odd perversion of the principle of federalism. The answer to their question requires asking: what’s the point of federalism in the first place?

Federalism is usually seen not as an end in itself, but as a vehicle to protect individual liberty — usually, negative liberty (“freedom from X”). How does it violate principles of liberty for the federal government to extend federal marriage benefits to same-sex couples? In other words, how does that interfere with anybody’s rights? On the other hand, when the federal government withholds those benefits from same-sex couples, as it does right now, it restricts positive liberty. (More here.) Our government was structured in such a way as to further certain principles, but Scalia and Roberts sounded like they were more interested in sophistic thought games than in the real-life implications of DOMA on these principles.

I thought Roberts, for one, would be more skeptical of DOMA, and I’m kind of disappointed in him. I guess the health care got all of our hopes up.

Then there was Alito, who twisted the principle of equal protection. Alito raised concerns that getting rid of DOMA would itself cause equal protection problems: what if a surviving same-sex spouse in New York doesn’t have to pay estate taxes because New York recognizes same-sex marriage, but a spouse in North Carolina does, because North Carolina doesn’t recognize those marriages? Doesn’t that raise equal protection concerns, he asked?

The answer is: isn’t that North Carolina’s fault, because it doesn’t recognize same-sex marriage, rather than the federal government’s fault, since the federal government just defers to state definitions of marriage? Why wouldn’t the remedy be to shield all surviving same-sex spouses nationwide from the estate tax, rather than make all of them pay it? It seems odd and cruel to say that it’s better not to provide benefits to any married same-sex couples rather than provide benefits to all of them. It basically holds couples who live in same-sex marriage states hostage to all the other states. How is that okay?

Despite Alito’s questions, I still see him as a possible vote to strike down DOMA. Maybe not very likely, but still possible.

Thomas, of course, said nothing. But I wonder if he, too, might strike down DOMA on federalism grounds. I’m not counting on it, but not totally ruling it out either.

So that leaves the four liberals plus Kennedy. States’ rights isn’t the reason I’d prefer for striking down DOMA, but I’d certainly take it.

And now the long three-month wait to see whether Matt and I get to have a whole-milk marriage.

The Prop 8 Oral Arguments

Some quick, pre-seder thoughts on today’s oral arguments in the Prop 8 case:

As I wrote the other day, the DOMA case is more personally relevant to me than the Prop 8 case. I already live in a state with marriage equality, and at this point, the only way DOMA will be overturned is if the Supreme Court does it. Due to partisan gerrymandering, we won’t have a Democratic House of Representatives for a while, and no GOP-controlled House is going to vote to get rid of it. No matter what happens with the Prop 8 case, it seems clear that it’s going to disappear one way or another in the next four years. Four years is still a long time to those who can’t get married, but without judicial intervention, Prop 8 will disappear much sooner than DOMA will.

That said, today’s oral arguments in the Prop 8 case were frustrating to listen to and read. Some of the justices just don’t get it.

There was Scalia, snidely and passive-aggressively asking Ted Olson exactly when it became unconstitutional to deny gay couples the right to get married. Olson smartly parried with his own question: when did it become unconstutional to deny interracial couples the right to get married? Scalia was just beating his dead horse that the Constitution never changes. I’d like to ask Scalia: exactly when did it become unconstitutional to discriminate against women?

Then there was Scalia (again) saying that we don’t know whether it’s a good thing for children to be raised by same-sex couples, even though all respectable social science has shown that it makes no damn difference what the genders of the parents are. Is it a good thing or a bad thing for kids to be raised by interracial couples? Is it a good or a bad thing for kids to be raised by Jews who live in Christian neighborhoods? Is it a good or bad thing for kids to be raised by couples who are in any way different from everyone else?

That’s my biggest problem with opponents of marriage equality. Don’t they realize that thousands of gay couples are already raising children, married or not? And if these justices have a problem with marriage equality because it might lead to more kids being raised by same-sex couples, why don’t they have a problem with civil unions, which supposedly already provide all the rights and protections of marriage, because after all, marriage is just a “label”?

Then there was Alito, saying that we need to be careful because same-sex marriage is newer than cellphones or the internet, like that makes any difference when we’re talking about love and commitment and human rights.

I was discouraged by Kennedy, who didn’t seem to want to buy the Ninth Circuit’s argument that was tailored implicitly for him. Maybe the Ninth Circuit was too clever by half.

I was most of all discouraged by Chief Justice Roberts, who seemed as skeptical of marriage equality as the other right-wingers.

Oral arguments are not necessarily indicative of the final decision (just ask Roberts about the health care case). And it seems very possible that the Court could overturn Prop 8 through inaction, either by letting the Ninth Circuit decision stand or by dismissing the case for lack of standing. But the tone of the questions discouraged me.

Perhaps things will go differently tomorrow in the DOMA hearing, when federalism arguments will take prominence. I imagine someone will ask about what happens if a Mississippi couple decides to get married in New York, because it has no residency requirement, and then goes back home to Mississippi: will the couple have a marriage that is recognized for federal purposes but not for state purposes, and how is that more complicated than having a marriage that is recognized for state purposes but not for federal purposes? The answer is that far more couples get married in their home states than go forum-shopping for marriage. But the justices like to poke and prod at the issues, so the question could come up.

I don’t know. I’m just going to take a deep breath and remember that none of us can predict anything.

Obama and DOMA

Matt has been bugging me to write something about the Obama administration’s decision to stop defending DOMA in court.

I just don’t consider it as big a deal as some other people seem to, for a few reasons.

One, contrary to what Newt Gingrich says, the administration is not suspending enforcement of the law. The law is still in place.

Two, we’re not talking about all of DOMA. We’re talking only about Section 3. If Section 3 is declared unconstitutional, the federal government has to recognize same-sex marriages performed in any state that allows them, but it doesn’t do anything about states that don’t allow them. Okay, that’s still a big step. But it’s not everything.

Three, the House can still step in to file a brief defending DOMA in court, and even if it doesn’t, independent organizations can always file amicus briefs putting forth their positions on the matter, and the court can take heed.

The ultimate decision-maker on this issue — barring DOMA repeal by Congress, which won’t happen anytime soon — will be the highest court in the land, the Supreme Court. And the Supreme Court will do what the Supreme Court will do, no matter what any lawyer argues. It’s become a judicial cliché that Justice Kennedy’s opinion in the only one that matters, but in this case it’s true. Although Roberts, Alito, Sotomayor and Kagan were not on the Court the last time it decided a major gay rights case — Lawrence v. Texas in 2003 — we can be pretty sure where they’ll line up. Kennedy’s the wild card.

Yet in an intangible way, the administration’s decision is important. Obama is using the bully pulpit of the presidency to make a statement in favor of gay rights, and any time the topic is raised for debate, more people become convinced of the arguments in favor of equality.

It’s just a matter of time.