Friday, May 11, 2012


The President's endorsement of gay marriage is certainly important symbolically:
Even though the waiting was frustrating, President Barack Obama’s announcement today that he fully supports marriage equality for gay and lesbian Americans is historic. It will certainly go down in record books with events like Stonewall as an important milestone in the equal-rights movement. Having a President, especially this President, take a strong moral stand in favor of rights for gays will help the country complete its own evolution on the issue and lead to a day where, once again, our understanding of American freedom will have been expanded.
After all, words do matter:
[M]ake no mistake: history was made today, and millions of Americans right now feel that their country has shown them a new, heightened degree of the respect they richly deserve.

Our highest elected official, our president, said that same-sex couples should have the right to marry, something that none of his predecessors had done, something that he had refused to do since becoming a national political figure. There’s a powerful message in that.


I find myself thinking about all the teenagers and young adults out there who cower in silence because they worry about being ostracized if they speak the truth about their sexual orientation. I think about the ones who are bullied, even the ones who contemplate taking their own lives.

And I think about what it will mean to them to hear the president say what he did today, not because they’re focused on marriage but because they’re buoyed by any and every reassurance that there’s nothing wrong with them, nothing inferior about them. Today their president gave them that reassurance.

I think about how it would have felt to me when I was 16, and fearful, and often deeply, deeply depressed, to hear a president say what ours did today. I can’t imagine it. In the three decades since, our country has traveled an enormous distance, and today is a poignant and compelling marker of that.
But it's worth being realistic about all this, too. His announcement, beyond the power of persuasion and his use of the bully pulpit, does not change much:
Adam Serwer is thus exactly right to point out that that Obama’s official position has not changed much at all. This expression of his personal views has not altered his position that the issue should be left to the states, no matter how benighted those states may be. To this point Serwer adds the observation that Obama’s much-touted recognition of marriage rights differs little from that of Dick Cheney, a politician whose progressivism we may be forgiven for doubting.

The counter-argument is that Obama is taking a politically risky move in making this announcement, particularly in swing states like North Carolina. I disagree. First, as Nate Silver shows, the risks are not so great, in that prevailing public opinion is coming more and more to accept marriage rights for gays and lesbians. Second, if there were political risk involved, why would Obama initially have planned to announce his conversion at the Democratic Convention? Precisely because his statement has the character of all statements at a party convention: it is a flashy, and fundamentally empty, attempt to rally the base.
Let's consider in some greater detail this notion of  Obama still being willing to let states decide:
Well, before Roe v. Wade, abortion was a state-by-state issue, too. So was slavery. There are 44 states in which gay men and women are currently barred from marrying one another. Obama's position is that, while he would have voted the other way, those 44 states are perfectly within their rights to arbitrarily restrict the access of certain individuals to marriage rights based solely on their sexual orientation.

That is a half-assed, cowardly cop-out. There are currently at least three cases winding their way toward federal courts that address the issue of whether (among other things) the equal protection clause of the constitution guarantees gay men and women the same access to marriage rights as heterosexual men and women—the Proposition 8 case, in which David Boies and Ted Olson challenged California's ban on gay marriage, and several challenges to the Defense of Marriage Act, which bars gay men and woman from receiving federal marriage benefits and allows states to refuse to recognize valid gay marriages. Obama's Justice Department has admirably declined to defend the constitutionality of DOMA. But the position he enunciated today is in opposition to Boies and Olson: Obama is saying that if he were a judge, he would have rejected Boies and Olson's constitutional arguments and affirmed the right of Californians to enshrine bigotry in their state constitution.

Equality is not a state-by-state issue. There is no reason other than ignorance and hatred that two men can get married in New York and not North Carolina. At a time when vindictive hucksters are rolling out anti-gay marriage amendments across the nation, and when conflicting state and federal laws portend an insoluble morass of divorce, custody, and estate issues, and when gay Americans are turning to the U.S. Constitution and the courts to seek an affirmation of their humanity, "it's a state-by-state issue" is a shameful dodge.
But in praising the president's statement, Glenn Greenwald makes an important point: why Obama said what and did, and the reason(s) behind the timing of his announcement are irrelevant — what matters in that he broke a barrier by being the first president to offer an endorsement of gay marriage:
It may very well be true that Obama took this step not out of any genuine conviction, but because he perceives that high levels of enthusiasm among the Democratic base generally and gay donors specifically are necessary for his re-election, or because Biden’s comments forced his hand, or any number of other tactical reasons. I don’t know what his secret motives are, but even if they could be discerned, I think it’s irrelevant.

When it comes to assessing a politician, what matters, at least to me, are actions, not motives. If they do the wrong thing, they should be criticized regardless of motive; conversely, if they do the right thing, they should be credited. I’ve had zero tolerance over the last three years for people who pop up to justify all the horrible things Obama has done by claiming that he is forced to do them out of political necessity or in cowardly deference to public opinion; that’s because horrible acts don’t become less horrible because they’re prompted by some rational, self-interested political motive rather than conviction. That’s equally true of positive acts: they don’t become less commendable because they were the by-product of political pressure or self-preservation; when a politician takes the right course of action, as Obama did today, credit is merited, regardless of motive.
Regardless, it sure would be nice if we stopped focusing so much on marriage and got government out of the marriage business — though that's not likely to happen anytime soon:
I am madly in love with my partner and I would marry her and yet she and I have both written extensively that marriage should not be the basis of our rights as citizens and that all families should be protected. The yin and yang of modern love hums along.

The tension here is not just personal, but political. There is a constant struggle between the fact that full citizenship in the U.S. is granted to those who are married (with over 2,000 federal rights and privileges) even as the majority of Americans are unmarried (and yet still, no doubt, mostly living in familial relationships and in need of those rights and privileges for their own loved ones). And this political tension can never be solved with individual decisions to wed or not.

No, instead what needs to happen is a political conversation about how to protect all Americans, married and unmarried alike. But that is unlikely to happen in such a highly polarized climate where we can only ever be for or against gay marriage. And so my inner romantic is winning out over my inner cynic and, as I think about Obama’s announcement, a smile is coming to my face.
And there's still a long way to go. DOMA still hasn't been repealed. And ENDA sits in limbo; in the majority of states, it's still legal to deny someone housing or employment for being LGBT. Transgender protections have been a big sticking point with ENDA, but Argentina shows us that it's possibly to extend legal protections to transgendered people:
Adults who want sex-change surgery or hormone therapy in Argentina will be able to get it as part of their public or private health care plans under a gender rights law approved Wednesday.

The measure also gives people the right to specify how their gender is listed at the civil registry when their physical characteristics don’t match how they see themselves.

Senators approved the Gender Identity law by a vote of 55-0, with one abstention and more than a dozen senators declaring themselves absent — the same margin that approved a “death with dignity” law earlier in the day.

President Cristina Fernandez threw her support behind the law and is expected to sign it. She has often said how proud she is that Argentina became Latin America’s first nation to legalize gay marriage two years ago, enabling thousands of same-sex couples to wed and enjoy the same legal rights as married heterosexual couples.

For many, gender rights were the next step.

Any adult will now be able to officially change his or her gender, image and birth name without having to get approval from doctors or judges — and without having to undergo physical changes beforehand, as many U.S. jurisdictions require.

“It’s saying you can change your gender legally without having to change your body at all. That’s unheard of,” said Katrina Karkazis, a Stanford University medical anthropologist and bioethicst who wrote a book, “Fixing Sex,” about the medical and legal treatment of people whose physical characteristics don’t fully match their gender identity.

“There’s a whole set of medical criteria that people have to meet to change their gender in the U.S., and meanwhile this gives the individual an extraordinary amount of authority for how they want to live. It’s really incredible,” she said.

When Argentines want to change their bodies, health care companies will have to provide them with surgery or hormone therapy on demand. Such treatments will be included in the “Obligatory Medical Plan,” which means both private and public providers will not be able to charge extra for the services.

“This law is going to enable many of us to have light, to come out of the darkness, to appear,” said Sen. Osvaldo Lopez of Tierra del Fuego, the only openly gay national lawmaker in Argentina.

Assistant Attorney General Thomas Perez, who heads DOJ’s Civil Rights Division, flew to Arizona to announce the lawsuit, which is the result of a three year long investigation. DOJ first announced the findings of their investigation back in December but tried to work with Arpaio to settle the issue and come to an agreement over the past several months. They acknowledged the negotiations had failed in April.

“Leadership starts at the top,” Perez told reporters in a conference call on Thursday. “All of the alleged violations that our outlined in the complaint are the product of a culture of disregard for basic rights within the culture of MCSO that starts at the top and pervades the organization.”
And those violations run deep:
The conduct of the Maricopa County Sheriff’s Office and Mr. Arpaio “is neither constitutional nor effective law enforcement,” the Justice Department argued in court papers. “The defendants’ violations of the Constitution and laws of the United States are the product of a culture of disregard for Latinos that starts at the top and pervades the organization.”

Mr. Arpaio has waged an increasingly bitter dispute with the Obama administration, including questioning the president’s birth certificate and portraying the civil rights investigation as politicized.


Portraying his agency as poorly trained and supervised, the lawsuit contends that its roughly 900 deputies are far more likely to stop and search Latinos than others – a sort of “detain first, ask questions later” approach that has led to roundups of people whose names are not listed in warrants. It cites many examples, including a woman of Hispanic descent who was held in custody for four hours before she was able to prove she had been born in the United States.

Meanwhile, the roughly 1,800 officers in the county jail system have a “culture of bias” against Latinos, whom they frequently refer to as “wetbacks” and “stupid Mexicans,” the complaint said. It said it was routine for department employees to circulate e-mails displaying bias against Latinos, like a picture of a Chihuahua in swimming gear and captioned “A Rare Photo of a Mexican Navy Seal.”


The complaint focused in particular on the work of Mr. Arpaio’s human-smuggling unit, whose role is to capture illegal immigrants as they are brought to the country, as well as the people who bring them in. It criticized a three-page policy guiding the unit as insufficient to prevent discriminatory policing, and said there was no mechanism in place to log complaints of abuse and help identify deputies who might be engaged in a pattern of misconduct.

“There is no legitimate law enforcement purpose that explains these failures” other than to prove that the discrimination against Latinos is “intentional,” it charged.

The lawsuit also charged that the criteria the unit uses to stop, search and arrest people – including detaining Hispanics who do not speak English and are not carrying papers proving their citizenship, and who appear to be nervous or have a strong smell of body odor – fell short of the probable cause required before police may stop and detain people.

For example, on one occasion deputies stopped a car carrying four Latino men, although the car was violating no traffic laws, on the sole grounds that the vehicle “was a little low.” The men were ordered out of the car, zip-tied, and made to sit on a curb for an hour before being released.

The workplace raids are loosely organized and poorly supervised, carried out by officers who generally lack the proper training, the lawsuit said. Neighborhoods, for their part, are picked for raids based on complaints from non-Latinos that a large number of Latinos live there, the lawsuit says.

Non-English speakers who are arrested and held in the county jail face further problems, the complaint said. Jail officials issue instructions only in English, and punish people who do not obey. Prisoners have been denied basic hygienic items – like sanitary napkins for women who are menstruating – if they do not ask for them in English, it said.

The complaint also accused the department and its allies of a pattern of harassing and retaliating against people who criticize Mr. Arpaio’s policies on immigration, including filing complaints against judges and filing lawsuits later found to be baseless, and arresting people without justification. 
"Reports by MCSO officers reveal the routine absence of probable cause to arrest passengers. For example, the following factors, in some combination, were listed as the support for probable cause in more than 50 arrest reports: passengers appeared nervous or avoided eye contact; passengers had strong smell of body odor; and passengers had no luggage or personal belongings in the car," the complaint reads.

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