Matt Comer

My piece in the DOMA challenge debate

Filed By Matt Comer | March 09, 2009 1:00 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: glad, indiana, marriage politics, North Carolina

Last week, while I was tending to pressing family matters in my hometown of Winston-Salem, the queer world found out about Gay and Lesbian Advocates and Defenders' (GLAD) challenge to the federal Defense of Marriage Act.

Bil posted on his concerns about the challenge and on his feelings that any blow back in places like Indiana will have a starkly negative impact on LGBT citizens there.

After the jump is a guest commentary I wrote and submitted to Bay Windows last week, regarding their breaking story on GLAD's challenge to the federal Defense of Marriage Act filed last Tuesday.

Like Bil, I'm concerned about the backlash places like Indiana and my home state of North Carolina will receive as we fight diligently to keep anti-gay measures off our November ballots.

Guest Opinion
DOMA challenge comes at bad time
by Matt Comer, Bay Windows (Boston, Mass.), March 5-11, page 6

As a native and resident of North Carolina, a just turned-slightly-blue, politically precarious state, I read with trepidation the news of Gay and Lesbian Advocates and Defenders' (GLAD) federal challenge
to the Defense of Marriage Act (DOMA).

While part of me is ecstatic that our movement is going forward, the cautious (and, perhaps, scared) side of me holds back. What does GLAD's challenge to DOMA mean for states like North Carolina?

I'm afraid our national LGBT community is repeating the same reckless mistakes over and over again. In the mid-1990s, Hawaii's move toward civil unions prompted a national, anti-gay backlash resulting in a federal DOMA and similar statutes in the majority of U.S. states. In the early years after the turn of the century, similar strides forward created anti-gay havoc in another majority of states in 2004, 2006 and 2008.

The post-2000 backlash was the most painful -- unlike statutes, constitutional amendments can't as easily be undone.

States like mine and flyover states like Indiana without anti-gay state constitutional amendments on marriage are, as Tar Heel State blogger Pam Spaulding says, "sitting ducks" in the continued state and local onslaught against LGBT equality.

What might be a positive step forward for liberal states like Massachusetts and Connecticut could turn out to be a huge leap backward for states like mine.

North Carolina remains the only Southern state without an anti-gay state constitutional amendment. A challenge to the federal DOMA gives our already more-than-well-organized, anti-gay opponents all the ammunition they need to ride roughshod over our LGBT citizens and write discrimination into our constitution. It doesn't matter that GLAD is only challenging part of DOMA; the religious right here will make use of the filing and add it to their arsenal of anti-gay propaganda and hate.

As Massachusetts moves forward, what will organizations like GLAD, and national groups like the Human Rights Campaign and National Gay & Lesbian Task Force, do to help the few remaining states where LGBT community members have sweated blood and tears to hold back the tide of anti-gay amendments?

Will we be left to fight alone? Will we be forgotten? Will we have to wait to be saved by the U.S.Supreme Court some two, three or four decades from now?

As our movement pushes forward, I implore our national leaders and those with GLAD to keep in mind the impact their actions will have on LGBT Americans living in less liberal states, towns and communities.

Matt Comer, 23, lives and works in Charlotte, N.C. He is the editor ofQ-Notes, the LGBT newspaper of the Carolinas.


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The federal government is afraid of granting us equality because then they would have the duty to protect us from the WINGNUTS, and they are too afraid of that. I can't imagine living in some areas in the U.S.A. right now, but even liberal places like Seattle have their share of hate crimes and Xtian Tyrannists.

One thought as our community begins to have the courage to use CIVIL DISOBEDIENCE:

Whether in business or personal relationships, one adage rings true:

YOU TEACH PEOPLE HOW TO TREAT YOU
YOU TEACH PEOPLE HOW TO TREAT YOU
YOU TEACH PEOPLE HOW TO TREAT YOU

In a commited relationship? - Filing taxes as married couple.

On the 2010 Census check off MARRIED.

TEACH government HOW to treat you. PERIOD!

Dear Government - I AM equal. I AM married.
F*CK you if you disagree; you are DEAD WRONG!

When government responds, sue the government for forcing us to lie about who we are.

I agree with much of what you say, as well as what Bil had to say last week as well. But my biggest fear in all this is the suit seeking to force the federal govt. to accept state recognition of marriages as the basis of entitlement to benefits. That helps only those who live in states that recognize same sex marriages. It does nothing to further the marriage rights of us all. And thus makes it harder to get marriage legislation on a federal level as the compromise position would be for "states rights" in defining marriage and the federal govt. staying out of the marriage business. Something our COMPROMISER IN CHIEF might just go for. NYT op ed piece advocated that. A dangerous precedent to set especially in terms of parental rights, adoption, and tax equality issues. We can't get our rights state by state.

I guess my piece, in response to bil's didn't fit your fancy.

there has been plenty written about this and I haven't a ton of gentle responses left in me but I'm gonna try...

moving forward in MA does not mean you will be "left alone." we cannot stop moving forward simply because the right wing nutcases will use it against us- they will. they will use anything against us, might as well be something good.

it is an opportunity, Matt, to write about your state, to highlight what is going on for you. But to say MA should stop pushing for equality is ridiculous.

oops, lost that gentle response.

it is a brilliantly timed lawsuit, with years of effort already put into it, national and state leaders aware and on board with it before the filing.

and to summarize another poster's comment, we fought hard for what we have in MA. it wasn't easy and we still face hate crimes, and we still face discrimination, and as I just said to my kids tonight, there are still places in this city I would not go to alone as a lesbian.

I appreciate you all have a lot of work ahead. we all do. let's move together rather than snipe at each other. CA, NJ, VT, NH, ME- are all going to have marriage rights in the next two years. would you rather these states stop their efforts?

and why what ever good will that do, even for you all in NC?

it's not going to change the battle you have to fight.

I find your response shortsighted, selfish, and devoid of any thoughtful consideration of what that suit really means for marriage for everyone, in all states. IT MEANS NOTHING. It only seeks to have rights and benefits for states that recognize same sex marriages. IT is not part of a comprehensive plan to achieve those rights for us all. And in fact, will make it harder. If federal recognition of marriage will be left to each individual state to decide, that would still leave a majority of us without the right to marry. And would make it harder to do. If not part of a national strategy for full marriage rights for all, it is useless. THE ELEVATION OF A FEW, DOES NOT RAISE US ALL. That should be the goal, I hope.

Sara... I missed your response to Bil's piece. I'll make sure I get to it tonight.

On a blog post I said the lawsuit was bad timing and that I thought it was reckless. That was a gut reaction. My Bay Windows guest commentary never says the lawsuit shouldn't go forward - in fact, I say there's a part of me that's glad to see our movement progressing. I just ask an important question - What will be done to help those states where LGBT activists are sweating blood and tears to keep amendments off the ballot? Will we be left out to dry, with no help, as more progressive states move forward? It isn't that North Carolina is backwards or slow (we have managed to remain the only Southern state that doesn't constitutionally discriminate against its own LGBT citizens), it's just that we aren't where other states are, and we, like Indiana, will take a huge hit from this.

I'm willing to take a hit - so long as those helping to cause that hit help us out once the beatings start.

You ask an important question, Matt. The rise of state constitutional amendments banning same sex marriage will skyrocket, those who already have them, will intensify efforts in other areas, like KY and TN, etc. AND no plan how to combat those on a massive, national scale, especially in securing rights for us all. Those are very important consideration GLAAD needs to explain.

The GLAD lawsuit is challenging DOMA on federal Equal Protection grounds. The essence of the lawsuit is the claim that discrimination on the basis of sexual orientation is unconstitutional.

In the long term, if the lawsuit is successful -- and no less a constitutional scholar than Lawrence Tribe counts 5 likely votes on the US Supreme Court in favor of it -- discrimination based on sexual orientation will be unconstitutional even in Indiana and North Carolina. That has far-reaching implications well beyond marriage. It's kind of the holy grail of equal rights for gay folks, and the time (and court precedent) is ripe for it. This has the potential to be another Brown v. Board of Education. A lot of violent backlash accompanied and followed that lawsuit as well, but I think most of us agree it was worth it.

In the short term, it puts enormous pressure on the Obama administration because they have to decide whether and how to defend DOMA, a law they've argued should be repealed. As a result it also puts pressure on Congress to actually repeal the damn thing. Finally, it puts pressure on Obama to think about who he appoints to the Supreme Court with regard to this very issue: does the Constitution prohibit discrimination on the basis of sexual orientation.

Far from being parochial, or self-serving or short-sighted, this lawsuit (and its timing) is actually pretty fucking brilliant.

Which 5 does Tribe refer to? Alito, Roberts, Scalia, and Thomas are automatic votes against this suit, which means that none of the other five can waver on this one. And considering Kennedy's rather limited view of equal protection, I'd like to know more about how Tribe arrived at his statement.

The radical right are the ones issuing the beating, not the plaintiffs in the MA lawsuit. The plaintiffs are exercising the rights afforded them by the US Constitution. I'm at a loss to figure out what they owe to people who live in other states.

Yes, its tough. But that's the price we pay. In one way or another we all pay it. Even the people who live in the bluer states.

Just because your enemy is the one hitting you, that doesn't mean your friends should egg him on. They should try to help you. No one is helping Indiana or North Carolina. No one but ourselves. There's no Good Samaritan for us.

Dave in Northridge | March 10, 2009 10:31 AM

Diane, you hit the nail squarely on the head. If we take a look at Brown v. Board of Education, yes, there was a massive backlash. There would have been one regardless whenever a decision like that had been made. If the DOMA suit succeeds, of course there will be a response. But wouldn't it be better if Indiana and North Carolina had to talk about secession than about whether to ban something they couldn't ban any more?

As for the beatings, Matt, do you think they'll stop even if we don't go forward with the DOMA suit? I don't.

David... I'll repeat it AGAIN... I'm not saying stop the DOMA suit. I'm just saying the timing sucks AND asking where are the national forces to back up folks in places like Indiana and North Carolina?

I beg to differ, Diane. I posted a blog on this very issue last week. After reviewing many sites, and since I have very little legal, or jurisprudence training, I found one that was layman, layperson, friendly. I posted it in it's entirety. it was written by Kenji Yoshino,and was called:"jurisprudence
State of the Union
Defining gay marriage for the feds" And is the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law and the author of Covering: The Hidden Assault on Our Civil Rights. Despite what you say about equal protection clauses, that is not the basis of the suit. And he points that out. That said, I think it wrong of the major organizations NOT to have framed this in the context of EQUAL RIGHTS FOR ALL LGBTQI PEOPLE, and detailed how this is going to accomplish that. To me, what they are esposing is a "JIM CROW" approach to letting staes define what marriage is. Can you imagine what would of happened to women's voting rights, and equality under the law if their organizations had taken such a haphazard approach to YOUR full civil rights? Can you imagine if blacks had taken a piecemeal approach to their full civil rights? Some could vote, and marry, and get benefits in MA, for example, and not in NC, just to use your examples of the same-sex marriage laws. THAT PREMISE IS RIDICULOUS. And the attitude, of "OH WELL, WE GOT OUR RIGHT, GO GET YOURS",is SELFISH, and self-serving. Take a look at the URL. If you have one to offer up illustrating how wrong I am, I will of course read it. I, for one always try to get the most info I can. And, if I am wrong, then I will say so...ST
http://www.slate.com/id/2212893/

Excellent point, Bil. I forgot to add that to my tirade of a comment, in response to Diane'a comment. Because here, in MI, AFA, and FOF, are attacking. They are going after local/city, and even county laws. It will intensify, and has intensified, yet where is the national strategy to help? And, like it or not, violence against us does seem to increase with announced actions like this GLAD suit. There has to be an approach that takes that into consideration. Along with a strategy to get all of our marriage rights established. Not just a few.

Alex - Kennedy wrote the opinions in both Romer and Lawrence, both decided on Equal Protection grounds, both in favor of gay folks. It's widely assumed he would join with the other 4 good guys to make the majority.

Steve - While certainly a component of what GLAD claims is that the feds are traditionally deferential to the states in defining marriage, it's by no means the main point. It only serves the broader point that treating some state-recognized marriages differently from other state-recognized marriages violates the guarantee of Equal Protection.

I really don't think this is a matter of national organizations abandoning the less gay-friendly states. On the contrary, GLAD's trying to use its resources to make a change at the national level, which would benefit all. For a regional organization that really is focused just on litigation, it's about the most they could do for NC or IN.

Again, I think the comparison to the civil rights battle is instructive: change was simply not going to arise organically from the states. Rather, it had to be imposed by the feds, either through Supreme Court cases or federal legislation, or both (as well as Executive action to enforce all of it). That meant risking short-term political backlash in individual states for the longer term goal of equality on the national level. I think it was pretty effective.

I take it then, Diane, that I am right in what this suuit really seeks to accomplish: Getting the government to dfer to state definitions as to what constitutes "marriage". If not, than why are they not explicitly stating the ultimate legal GOAL is to sue under equal protection clause? They are treading dangerous grounds as stetes will rush to ban same-sex marriages if they already haven't. I still find that ill-advised, and short-sighted. I wonder if it is merely that in light of so many defeats by major, national organizations lately, if GLAD is merely hoping to win this narrow, ill-suited, case to claim a symbolic, yet empty victory, if they can win it at all.

I must not have been very clear. The lawsuit explicitly claims that DOMA violates the guarantee of equal protection, and asks that it be struck down on that basis. One result would be that the feds go back to their old practice of deferring to state definitions of marriage. But the legal analysis that would lead to that result is a finding by the Court that is unconstitutional to discriminate on the basis of sexual orientation.

So, if successful, it wouldn't be a narrow victory at all.

But also, that's only if the case goes up to the Supreme Court. Other potential results of the litigation is the Obama administration pushing for repeal of DOMA, or (least likely) entering into an agreement not to enforce DOMA.

I have searched for the articles, posts, and news sites looking for ANY that cite that this suit explicitly challenges DOMA for violating "the guarantee of equal protection, and asks that it be struck down on that basis." So far, i have seen conjecture, I have seen comments that describe what could happen, either way, yet have found none that seeks the remedy I referenced earlier, by KENJI YOSHINO, Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law. As for as "the essence of the lawsuit", being what you maintain, I think lawsuits are filed on the language and the legality of certain provisions of law. The stories/items I have read pretty much cite that the suit, right now, does not seek for the court to overturn DOMA, and will not set any precedent in it's reversal. But thanks for the discourse and the discussion. I still think that a greater plan needs be developed to actually overturn DOMA, and make ti inclusive for all of us so that those in the "flyover states" won't have to suffer at the hands of a few. St

beachcomberT | March 15, 2009 7:21 AM

Puritan forefathers may be spinning in their graves but I am so thankful that Boston (& Massachusetts at large) continues to play its role of "city upon a hill," setting a model for all of us. If the hold-back, don't rock the boat mentality had prevailed, we would never have the few beachheads of marriage rights that we do. Ultimately, gay people in deep red states can choose to relocate to friendlier states, or else redouble their efforts locally. I'm in Florida, where bigots still crack stupid jokes about Massachusetts. Their jokes will wither as the rest of New England, NY, New Jersey and eventually California swing open the doors to equality. It's not an abstract issue, folks -- it's a real bread-and-butter thing. Just take Social Security, for example -- if my partner could claim a spousal work record in his credits, as married heteros do, his monthly pension probably would increase by at least $500. I just mailed in my tax return -- being unable to claim a spouse cost us about an extra $1,000 in taxes. How many more years must we keep paying these gay penalties? Massachusetts is teaching the rest of the nation there's a better, more reasonable way -- and setting the stage for the U.S. Supreme Court to get rid of the inequality nationally.