and he is not referring to a woman named Farrow. The letters stand for "Missing in Action" which is how he describes the President in this Washington Post column. Robinson offers one very key point, noting that Obama during the campaign favored repeal of the noxious Defense of Marriage Act. In his penultimate paragraph he then writes
Does Obama's stance in favor of repeal mean that he believes the federal government should recognize same-sex marriages? Does he also believe that, say, the state of Alabama should recognize a gay marriage performed in Iowa? If so, what is the practical difference between this position and just saying in plain language that gay marriages ought to be legal and recognized in all 50 states?
It is there I want to start.
I am not going to explore all the issue contained in Robinson's column, He begins by noting that he is actually capable of seeing both sides of an argument, using as examples guns and affirmative action, issues on which there can be shades of gray. He then writes
On some issues, though, I really don't see anything but black and white. Among them is the "question" of granting full equal rights to gay and lesbian Americans, which really isn't a question at all. It's a long-overdue imperative, one that the nation is finally beginning to acknowledge.
On this I fully agree. Of greater importance, I think our history of attempting to narrowly parse the language of he 14th Amendment to avoid confronting its requirement for full equal protection is not only shameful and embarrassing, it puts us well behind other nations, and costs our nation dearly.
The Fourteenth Amendment has its all important Due Process clause,beginning to extend the reach of the Bill of Rights against state action. There are three applicable clauses, the first two of which read
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
and the third, clearly applicable to our continued shame of allowing discrimination against gays reads
nor deny to any person within its jurisdiction the equal protection of the laws.
Let me properly frame that final clause: No state shall deny to any person within its jurisdiction the equal protection of the laws.
Robinson reminds us that language used to discriminate against gays in the military by Don't Ask, Don't Tell is at least parallel if not identical to that used against blacks in integrated units. It was shameful then, it was shameful when Colin Powell as Chairman of the Joint Chiefs of Staff applied it towards gays in the military, and it harms our nation.
I praised Powell when he rightly raised the issue of the mother at the gravestone of her decorated but dead soldier son, killed in Iraq. He was a Muslim. Powell rightly noted that there was nothing wrong with being a Muslim in this country, because someone like Kareem Khan could die in the service of this nation. Powell made those remarks while announcing his endorsement of Obama for President during a Meet the Press Interview. While I admired that outspokenness by Powell, I wondered if he would be willing to say the same were he to see the mother of a gay soldier or marine who had died? We of course have had decorated gay military personnel. If you have not heard of Leonard Matlovich, perhaps you should examine his tombstone at Congressional Cemetary in our nation's Capital:
Obama is committed to overturning DADT. He says he is committed to overturning DOMA. While I do not know how the current Supreme Court would rule, it has always seemed to me that DOMA is patently unconstitutional, a violation of the Full Faith and Credit clause, Section ` of Article IV:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
I know of very conservative legal scholars who also find DOMA unconstitutional.
Of greater importance perhaps is to note, as does Robinson, that with gay right we seem to be recapitulating black rights. He describes the parallel with the military. There is a similar parallel in the case of marriage, the 1967 case of Loving v Virginia which declared unconstitutional the antimiscegination laws of Southern states that criminalized the marriage of White Richard Loving to his black wife Mildred - who shortly before her death came out against the proposed (and unfortunately passed) Virginia constitutional amendment against gay marriage, being very clear that she viewed it as equal to the discrimination against her and her husband.
Attitudes are changing, and perhaps we should listen to the young people. I have written of the difference of the lives of my students in high school to that I experienced, graduating in a liberal suburb of NY in 1963. Our gay students were not out. And despite the Civil Rights movement there were no open black-white couples, and only rarely white-Asian. My students all know openly gay classmates, and some same-sex couples are quite open. I have commented on the impact this has even on those from religiously conservative backgrounds, such as the young African-American woman whose family is deeply religious who wondered why some people wanted to deny her gay classmates their right to the pursuit of happiness?
One argument against continuing DADT is that we are allied in NATO with countries that allow openly gay people to serve in the military. Unless we are going to argue that they are unreliable allies because of that open service and break or restrict military ties, our alliance clearly undercuts any argument about having openly serving gays in our armed services.
Similarly, increasingly nations with which we have close ties are honoring the rights of same-sex couple, including fully recognizing their marriages. We now have 5 states that are catching up with the nations of the Netherlands, Belgium, Spain, Canada, South Africa, Norway and Sweden. And with respect to DOMA, we have several countries doing what the District of Columbia just voted to do. The District voted to recognize same sex marriage from those states where it is legal. Israel and Japan have a similar attitude.
I do not believe that some people are more equal than others, thus I do not believe some are less equal. While our national courts have not yet caught up with those in other nations - even Nepal has judicially ruled that gay couples have the right to marry - and while sexual orientation is not yet a protected class the way race, religion, national origin and to some degree gender are in the U.S., if we allow the parsing of clear language of constitutional provisions in order to be able to discriminate, we bely our supposed national motto of E pluribus unum - out of many, one. Yes, it's original formulation was one nation from many states. Even that was probably not true until after the bloodbath of the Civil War, and even today we have states with governors (Texas) and legislatures (Oklahoma) that still want to argue that somehow they have the right to reject the implications of being one nation.
We have a moral obligation to all our citizens. Even further, most of the rights protected speak not of citizens - for we did not fully define citizenship to the 14th Amendment - but of persons. And the Equal Protection clause clearly speaks not of citizens, but of persons.
Are we prepared to say to Canada or Spain or Belgium or the Netherlands or Norway or Sweden that people legally married in those countries with which we have close ties will not be considered married in the United States? Perhaps we are, but it is hard to rationalize such selective recognition, just as the Constitution makes clear that there should be NO such selective recognition among the states.
I think this is a clear moral issue. And I think Robinson nails it in his final paragrap:
I'm not being unrealistic. I know that public acceptance of homosexuality in this country is still far from universal. But attitudes have changed dramatically -- more than enough for a popular, progressive president to speak loudly and clearly about a matter of fundamental human and civil rights.
Mr. President. You are the product of a marriage that was illegal in a number of states at the time of your birth. Your parents would, had they come to my residence of Virginia, faced the same felony charges with which Richard and Mildred Loving were threatened. Those charges were wrong then. And the refusal to recognize the rights of gay people are equally wrong now. When will you step up to your responsibility to lead the nation on this important moral issue?