Yesterday was kind of an important day in the LGBTQ movement. Let me try to sum it all up for you.
» Remember back in July when Judge Tauro found that the Defense of Marriage Act (DOMA) was unconstitutional in Massachusetts based on both the Fifth Amendment (due process) and the Tenth Amendment (reserved power)? Well, yesterday, on the last possible day, the Department of Justice (that’s President Obama’s Department of Justice) appealed the decision. This means that even though Obama campaigned on DOMA repeal, he is going to again defend it in court. (Note: He doesn’t have to.) Hopefully there won’t be any comparisons to incest this time around.
» Remember the court case in Florida against FL’s ban on same-sex adoption? It was the one where George Rekers was payed huge sums of tax-payer money to testify with NARTH’s bunk science. Well, the Florida Department of Children & Families announced they won’t appeal.
It is now legal for gay and lesbian parents to adopt children everywhere in the state of Florida!
» Remember last month when Judge Phillips ruled that Don’t Ask, Don’t Tell is unconstitutional? Well, yesterday she followed through on that decision with a permanent and immediate injunction against the policy.
As of this posting, Don’t Ask, Don’t Tell is not currently in effect in the United States.
So, good news and bad news.
The Florida decision is undoubtedly good news. I think back to Scott Ruppert, Robert Richendollar, and their son, Riley, who I met a year ago at the National Equality March. Now Scott and Robert can finally secure their family by both adopting Riley so that one of them doesn’t continue to just be a legal stranger. I wish them and all Florida families the best.
The DADT decision is great, but also troubling. The DOJ has 60 days to appeal. An appeals court could grant a stay or eventually reverse the decision, which means DADT would resume being the law of the land (short of Congress repealing—err, “repealing”—it). This sets up a potential situation like the passing of Prop 8 which removed a right and created various statuses.
A person in the armed services could come out today with no consequences. If a stay is granted tomorrow, however, that individual can’t exactly undo telling everyone! They could face discharge under DADT for telling when DADT wasn’t in effect. It’s sort of a glass ceiling for equality: we are equal, but we can’t safely enjoy it yet.
The question here is whether Obama should appeal. There are some good things that can come of the DOMA appeal. The more the DOJ loses in those cases, the wider the effects of the decision. In some ways, the federal government has to appeal or be faced with treating same-sex marriages from Massachusetts differently than same-sex marriages from everywhere else. If the Supreme Court ends up ruling DOMA unconstitutional, then just like that we’ll have marriage equality nationwide. But how much damage is done to our community in the meantime by those “defenses”?
There is an argument in favor of appeal in the DADT decision too. Even though, because it was a facial challenge, the decision does affect American troops worldwide, there is a political consequence to the DOJ not appealing. If, under a Republican President, a district judge rules against a law implemented by Obama, then that President will have political cover to not appeal that decision either. So, even though we are closer to equality without DADT, Obama should appeal it for political reasons.
I’m not sure I buy this. After all, it is Obama’s faith in Republicans to join Democrats on moral high ground that has led to all his falters and compromises over the past two years. Why Dems hold out for bipartisanship when Republicans couldn’t be less interested in it is beyond me. And simply because Obama takes the high ground with this appeal doesn’t mean a future leader will do the same. That individual will have the same legal freedom to not appeal.
Obama has also insisted he wants a legislative appeal, even though he’s been incredibly hands-off in working towards that. I don’t see how one solution is better than the other, but that alone could be reason for him to want to appeal. It would be a stupid reason from my point of view, but my opinion isn’t enough to stop him from making that call.
It’s unfortunate how much our rights are tied to politics. As we continue to be bullied by our government, we struggle with simply communicating positive messages about our community across the country. Have you heard about Aiyisha Hassan? Probably not. I can’t help but wonder if it’s because she was black and female. Another victim of anti-LGBT bullying, another loss to our community.
I hope someday we see a day when our rights—our lives—cease to be political fodder. Until then, we’ll continue to have empty-feeling victories like these, with justice delayed, justice denied.