Wednesday, March 27, 2013

Some Thoughts on DOMA

Parenthetical: This is an extended version of a Facebook exchange

Today the US Supreme Court heard arguments in US v. Windsor.

1996: The Passage of DOMA

In 1996, I was attending Berkeley, doing an EECS degree. I lived in perhaps the most liberal place in America: Berkeley is a notorious stereotype for ultra-liberal American town; the Bay Area is famously liberal (key city: San Francisco); California has always been at the frontiers of acceptance and tolerance.

Day to day, as an out gay University student, I didn't really see any impact on my life. Sure, there were places where I wouldn't have gone with a boyfriend. Obviously, I wouldn't have planned a holiday to Arkansas or Mississippi (although would I anyway? Doubtful). But day to day, none of the red state idiocy impacted me.

And then DOMA passed. And all of a sudden I realized that I wasn't living in the bubble I thought I was. I was living in a nation that hated me.

Imagine, if you will, a 20-year-old man, who discovers the following:

  • The most representative institution in his country's government, the House of Representatives, not only votes to ban federal recognition of any marriage he might have, but to express a moral disapproval of homosexuality (seriously; until today's DOMA argument transcripts I hadn't read the House Report; it shocks me in its blatant homophobia even 15 years later)
  • The body of legislature designed to be a check-and-balance on the more populist instincts of the House (the Senate), voted 84% to pass the same legislation.
  • President Clinton signed the bill as fast as he could.

What does this say to a young gay man (already struggling with growing up in a post-AIDS world)? "Your entire federal government hates you and wishes you weren't American."

Fast Forward: 2004

In 2009, I came out on the internet. I expressed then that I moved to the UK because I was in a relationship where I was able to move to the UK based on my relationship with a British citizen, but not vice versa.

When I made that decision, I made one very simple promise to myself: I would never move back to the nation of my birth; the nation where I am a natural born citizen; until there were, at the very least, same sex immigration rights.

I'm still waiting. Paid a lot of taxes to HMRC in the meantime. Employ a lot of people. No sign 'Murica wants me back.

Today's DOMA Transcript

We're in March of 2013. The decision as it's handed down in June may be radically different.

The transcript from today's oral arguments seem to revolve around three major areas:

  1. Does the group of House of Representatives people have standing to appear at all?
  2. Is there a problem with DOMA on federalism issues?
  3. Is there a problem with Section 3 of DOMA on Equal Protection issues?

As a gay man I only care about point #3. To be honest, I really don't care at all about the mental gymnastics required to determine who may be a party, as opposed to an amicus, in a Supreme Court case. I'm sure the court does, I don't.

The federalism angle is great, if it's the best way to get DOMA overturned, which I reckon it is. Any port in a storm, eh?

But this isn't, to me, a rational discussion or debate. It isn't even a pragmatic one ("As long as DOMA gets overturned and there's gay marriage immigration rights I'm happy"). It's an emotional one. The US government in 1996 told me I was a second class citizen and they hated me.

So as an American who's chosen to move elsewhere, move somewhere that the federal government has a non-partisan, free vote, and says "Why the hell wouldn't we just accept gay marriage?", and an American who believes in his nationality of choice so much that he's taken citizenship, I ask you: why should I accept some second-tier decision? Why should I accept a situation where I am constantly thinking "Well, the legislative and executive branches would send me to a desert island if they could"?

I accept the US judicial process. I accept it takes time.

What I will never accept is that the nation of my birth takes great pains to tell me, repeatedly, that I am not welcome to return.

I will never be happy until the Supreme Court takes on the Equal Protection arguments in both the Prop 8 and DOMA cases and actually issues a ruling.

And I really hope that it doesn't, to paraphrase Justice Sotomayor, take 60 years of the Supreme Court choosing inaction (as it did in inter-racial marriage) to allow the issue to "perk" sic. Because if the Supreme Court is calling out miscegenation laws as its finest hour of jurisprudence, there're some problems.


Justices Scalia and Thomas will, no matter what, write a scathingly homophobic opinion on both the Prop 8 and DOMA decisions. Because nobody has yet impeached them.

blog comments powered by Disqus