Why Heritage Foundation is wrong on DOMA

Why Heritage Foundation is wrong on DOMA

At http://www.heritage.org/Research/Reports/2011/05/Winning-DOMA-on-the-Merits-of-Marriage

is this article – which I shall now deconstruct and show to be utter mush.

Winning DOMA on the Merits of Marriage

Published on May 6, 2011 by Chuck Donovan WEBMEMO #3244”

There is indeed, Mr. Donovan, enormous benefits to marriage. Denying it by any name to gay couples cannot help those couples, nor can it preserve it for straight couples. Not a thing gay folks do either harms nor benefits marriage. What heteros do is on their own merits, indeed. But it certainly can’t be denying gay couples a union by any name to handle the vagaries of the realities of life for us, as we live it – we simply cannot be the lynchpin your article proposes it to be.

If Olympic medals were handed out for hubris, the Human Rights Campaign (HRC), a gay activist group, would be the clear favorite for the gold. Its ruthless effort to deprive the Defense of Marriage Act (DOMA) a top-notch defense in federal court has collapsed at the starting block. But this effort highlights the fact that the fight for traditional marriage is a fight for a popular institution that the nation urgently needs to preserve.

Well, let’s bring out the loaded language and the (unintended?) irony. Let’s start with the irony. Gay people were deprived of the use of the word “Olympic” by the Supreme Court. Weirdly, Judge Walker of Prop-8 fame was the lawyer who stopped the gays from using the word. Gay people are not welcome at the hetero Olympics either; and so no gay person would be getting a medal whatsoever.

“Ruthless”? Because they did a little lobbying? Because King & Spalding themselves had internal disputes in their own ranks separate from any HRC efforts? Because Coke took the high road?

“Gay activist group”? Is there any other kind of “gay group”? All gay groups are activist, no? Aren’t they all “militant” and “radical” too? Why of course they are. The words are inseparable by many a heterosexual in this “debate.” Though, true, the nation needs to preserve, even nurse the sick puppy of marriage back to health – but we’re not wrecking it – you heterosexuals are. Ask Donald and Newt about the sanctity of it all. Or Larry King, too. Nine times down the aisle already! My my, such sanctity.

The effort didn’t “collapse,” King & Spalding dropped the case. And no, sir, no law requires a top-notch law firm on the gay dime to fight gay people. And if you all have the right to say “God Hates Fags” we certainly have the right to say “Don’t defend DOMA.” It’s only fair, in the ongoing public discourse, as Justice Breyer observed it to be in that very case.

A Campaign of Intimidation

HRC’s campaign at first appeared to succeed when the law firm King and Spalding announced on April 25 that it would no longer defend DOMA, the 1996 act of Congress that defines marriage as the union of a man and a woman and allows each state to protect its definition from the acts of other states. But that triumph proved short-lived when King and Spalding partner Paul Clement, a former solicitor general of the United States and the counsel of record for the House on DOMA, immediately resigned from the firm to continue DOMA’s defense.

I would think there’s quite a “campaign of intimidation” against gay people going on. “God Hates Fags” is not exactly uplifting, sir. Rather intimidating too. Indeed, DOMA is a very big part of the “campaign of intimidation” you claim to dislike. So, DOMA will be defended, too, by someone who must believe passionately in it; but other lawyers said “no way.” So they parted ways, as people in disagreement do. There is no requirement that lawyers take a case, only that they argue it for the merits. But if a lawyer can see no merit in the case the client presents he certainly as a duty to say, “Nope, not going to fly.” And the very provision which allows states to not honor other states’ acts is unconstitutional on its face under the “full faith and credit” clause. Indeed, that’s what preserves marriages made in Massachusetts as marriages in Texas. But due to DOMA, in a bill of attainder sort of way, I think, Texas automatically dissolves the marriage of a gay couple against its will, and hardly preserves it at all – it destroys it instantaneously.

And you forgot to mention, sir, that the law also specifically denies recognition of any “union” by any name whatsoever. And if you could take the word “Olympic” from us, you can do the same with “marriage.” A guy in Tennessee is busy trying to take “Gay” away from us too, laughably. Alas, we still have sporting events, with medals too, and tens of thousands of participants, and it’s all very “Olympic” anyway – and so we can surely have “unions” by some other name, no?

This development, however, was combined with news HRC surely did not expect: a near-unanimous condemnation of its tactics, and the ethics of King and Spalding, from across the political and legal spectrum. Even gay-marriage advocate Ted Olson and Supreme Court Justice Elena Kagan pointed to the poor precedent that would have been set if political intimidation had prevailed in this instance.[1] Many observers commented on the injustice that could occur in other situations where a law firm was pressured not to continue representing other “unpopular” clients, such as prisoners of war at Guantanamo Bay.

I think what HRC didn’t expect at all is for King & Spalding to agree to drop the case. But, we being savvy gay people, we always expect any win by us to be met by a “near-unanimous condemnation.” Indeed, anything we do – tactic, strategy, win, wake up in the morning – makes no difference – it’s met by the same bile near unanimously. We’re quite used to it. After all, we’re condemned for being “Activists,” “militants” and “radicals” no matter what we do. So I’m guessing that surely HRC expected the exact reaction they got to their unexpected win. But honey badger wise (oh go look up the video) they said, “who gives a damn.” And really, we don’t give a damn that you don’t like our tactics. It’s self defense on our part, from the beginning, and we’re not playing by the rules you set out for us to follow, to allow you to condemn us till the end of our days, no. We’re playing by a win strategy by saying “Oh, pretty please accept us.” Which is ruthless, indeed. It’s been working so far, though. Epic fail stopping us in the long run.

Still, there’s some fundamental flaws in your comparison of us to prisoners of war. Obviously, we’re not prisoners of war, we’re American citizens leading demonstrably provable peaceful and productive lives – and POWs are killing people and blowing things up and trying to destroy the nation. They in Guantanamo are unpopular as individuals for what they did, and were caught doing it, and actual court cases are being prepared against them for what they did. On the other hand, we are unpopular as a group for whom we are and you can’t find an individual among us whom is a danger to society. It’s only as a group we’re a threat, and that by your own belief, not by what we do. You couldn’t put a name or a face to any claim of the destruction of civilization that is leveled at us by DOMA. You can’t find a one of us in open declaration of war against the nation, but only bleating “treat us as you wish to be treated,” and trying to order our lives and preserve our “unioning,” which you don’t like. And you won’t find any of us in Guantanamo either, for having fought this nation.

The point is well taken. Only a truly adversarial legal system has any claim of integrity. But much more is involved here than a single ethical lapse or public relations misstep.

Yes, well, you see, Mr. Donovan, you are our adversaries, as you state boldly, but we are not your adversaries, as we keep saying. We’re your buddies, your fellow citizens, your flight attendant and the guy who checks you into the Ramada, we’re hair dressers and homeowners probably just a few blocks from your own home. So you can adversary against us all day long, and we’ll still like you – we actually have no choice in the matter – we have to be nice to you people, for there are so many of you. But more to the point, we have no reason to not be nice, nor to be your adversary – we want you to do what you do, but leave us alone.

The HRC’s interference with a legal opponent’s counsel is part of a larger campaign to silence opposition to the radical redefinition of marriage. This campaign is designed to intimidate advocates of traditional values and deny them a range of fundamental freedoms, including speech, religion, and conscience. In this strategy, portraying traditional marriage as “unpopular” facilitates aggressive political action to punish—personally and professionally—those who disagree with the radical activists.[2]

Well, you got that right – we are indeed interfering with our opponents – to “silence opposition.” Why, we’ve been at it for 60 years or so in modern America. Hardly by “intimidate,” however, no. Usually by just saying, “Now, now, ma, I’m gay, that’s all, don’t worry.” Oh the horror of the “Radical activist.” My my, here we’re both together “radical activist” – and sir, it’s not some, it’s not a group, or an organization whom is trying to get us some “fundamental freedoms, including speech, religion and conscience.” No, it’s every last blessed one of us, and quite independently of each other too. We barely know what the gay guy down the block is doing. But did you know, sir, that we were denied free speech, the mails, association, political protest, even the right to have a beer with a buddy unmolested by the police state. Talk about your intimidation – well, it happened one too many times, and so those boys at Stonewall did a little reverse-intimidation indeed.

Still, DOMA denies the right of our “speech” – we can’t say “I do” – and our “religion” – our God says we can get married – and our “conscience” – for to be harassed and harangued near daily does wear on one’s conscience, without a doubt. So whom here is being denied what? You get to keep doing what you all do, and we’ll do the catering and the flowers – and we get finally do to what we do. But no, you tell us no, we cannot. Sounds like we’re the ones denied.

But the HRC’s campaign commits yet another offense that too many in elite media and political circles reflexively pass along: It is a gross misrepresentation of reality. Such tactics are ugly when they are used against a minority. They are no prettier when used against the significant majority of Americans who, as the radicals might put it, “cling” to traditional ideas about the marital union.

Hmm, OK, so there was near-unanimous condemnation of the HRC campaign – but these same elite media and political circles are passing along what then? Sounds like they’re passing along exactly what Donovan wants – near-unanimous condemnation. The man does want his cake and eat it to. Still, “another offense” that is passed along by HRC is simply being “radical activists.” Why, the very existence of gay folks and our refusal to kowtow to near-unanimous condemnation is said to be the very offense we pose. Our very existence is offensive to Mr. Donovan, as he’s making clear. What can we do to mollycoddle the man? Other than rid ourselves from the nation, of course.

“Such tactics are ugly…” Is he kidding? We’re near-unanimously condemned, which is pretty ugly. And DOMA is ugly indeed – for if such tactics are offensive, and DOMA is the tactic to “preserve” marriage by denigrating gay people – well, offense taken. But he’s opposed to ugly tactics against minorities? He’s sure opposed to us, by any ugly tactic he can muster, and we’re a minority. So he’s upset about his own ugliness? Somehow I don’t think he sees his irony.

I don’t know which “Radicals” he refers to who are upset about anyone “clinging” to anything, but we love that institution of marriage so much, and want to cling to it so much, that we’ve been quite willing to advocate for our inclusion in it by some name. Oh, if “marriage” is the problem, like “Olympic” was the problem, then give us, oh, I don’t know – pick a word 100,000 words either side of “marriage”in the dictionary. We’d probably be happy straight away.

And that’s just part one of his stuff. Part two will be in just a while.


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