Culhane: The tidal shift in the LGBT movement

Culhane: The tidal shift in the LGBT movement

By John Culhane, Professor of Law, Widener University
09.23.2011 8:00am UTC
Who’s hiding now?

A couple of recent developments – one seismic, the other not so much –
point to a tidal shift in the battle for LGBT equality and dignity.

The biggie, of course, is the long-overdue interment of Don’t Ask,
Don’t Tell. You’d have to be made of a certain kind of dense mineral
not to be moved by the stories that we’re hearing of soldiers who can
now go about their jobs without fear of being outed, then ousted. And
the squawking of those on the hard-right who’d threatened to get
repeal undone are dying away like the gasps of an almost-extinct
species.

Yet the repeal creates problems more complex than the one it solved.
Once these gay and lesbian (but not transgendered) soldiers stand
revealed in the fullness of their identity, it’s also going to become
almost immediately apparent that they’re still not equal. While they
now are allowed to exist, their relationships are not, because these
soldier are not considered legally married for federal purposes.

So all the benefits that straight servicemembers take for granted –
including housing for their families and spousal death benefits –
aren’t available to same-sex couples. Because of the Defense of
Marriage Act (“DOMA”) that’s true even if the couple is considered
legally married in their state of residence.

This glaring inequality has the potential to do some serious damage to
the anti-equality forces. Soldiers not only enjoy tremendous respect,
but they live in such stifling proximity to each other that these
inequities can’t be missed. In short order, this new set of stories –
told now not by ex-soldiers, or by soldiers concealing their
identities, but by open and proud service members – will create a
compelling narrative that should accelerate the momentum toward the
repeal of DOMA.

Equality and openness beget more of the same.

This could finish even better than you’d think it might. Because
members of the military are constantly on the move, and often
overseas, it won’t do to have their marriages recognized some of the
time (when they’re in states that allow same-sex marriages) but not
always (when they’re anywhere else). So the move to pass something
like the Respect for Marriage Act (“RMA”) will also gain steam. Under
that proposed bill, once you’re legally married in any state that
allows it, you’d be forever deemed married for federal purposes. While
the RMA still won’t force states to recognize marriages from other
states, the pressure on them to do so will increase dramatically.

No other approach makes sense for the military – it would be a
logistical nightmare for the government (and the same-sex couples) to
move in and out of legal marriage as they changed location. This is
already a problem with same-sex marriages under state law: try
dissolving your Massachusetts marriage in Texas, for example.

But the military setting brings the problem into sharp relief.

So the reality of our lives, as we push further and more boldly into
the open, has created irresistible pressure for equality. Look no
further than recent polling data on marriage equality for evidence
that the message is getting through.

And that brings me to the second development, which is a sort of flip
side. As our openness and equality become an increasingly tight and
strong braid, our opponents find themselves on the defensive. That’s
not a good place to be when you have no good arguments for your
position.

So, once again, we had the Prop 8 opponents trying – but failing – to
keep the videotape of the trial from being made public. (An appeal has
been filed, of course.) And a couple of weeks ago, the lawyers working
for the House of Representative on the DOMA case politely refused to
consent to the videotaping of oral arguments before the federal
appellate court. They gave no reason for their refusal, but let me
suggest one:

They know their arguments are neither sympathetic nor compelling.

The more they say, the worse – the meaner, frankly – they seem. David
Boies, one of the attorneys on the Prop 8 challenge, said it
succinctly: “The witness stand is a lonely place to lie.” (Watch the
video, especially around the 3:00 mark. Boies is devastating.) Indeed,
the Prop 8 defenders’ witnesses were such a disaster that the release
of the videotapes would be a huge boon for our side. Better to keep it
– and all opposition arguments – under wraps. I’d be begging for the
same result were I the lawyer representing them.

Who’s hiding now?

John Culhane is stepping up the pace of his own blogging at
wordinedgewise.org as his work on this site rockets toward its
conclusion next week. You can also follow him on Slate, Twitter
(@johnculhane), or through his legal scholarship. He’s also working on
a book about civil unions, and invites your stories.

More:
http://www.365gay.com/opinion/culhane-the-tidal-shift-in-the-lgbt-movement/

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