Get Used to It: Ep. 151, "DADT & DOMA"

(typewriter clicking) (funky guitar music) - Hi, welcome to "Get Used To It." I'm Sheila Kuehl, your hostess, (chuckles) taking you through this hour of intellectual and, I don't know, current events. Today, we're actually talking about something I haven't seen too much information about. We're hearing a lot in California about Prop 8, we're hearing a lot in other states about the work on gay marriage, but we are not hearing a lot of information about either Don't Ask, Don't Tell or the Defense of Marriage Act, and there's a great deal going on about both of those federal laws. And today, I have three guests who are going to discuss this and shed such light on it that you and I will have learned something by the end of the hour that we didn't know. So, I'd like to welcome my guests. First, here on my left, well, they're all on my left, but who knows, maybe, (Sky laughs) or maybe not. Sky Jonson, who is Senior Policy Counsel at the LA Gay and Lesbian Center. Welcome, Sky. - Thank you, great to be here. - It's good to have you back. - [Sky] Thanks, it's been a while. - Jon Davidson, who is the Legal Director at Lambda Legal. - Hi, Sheila. - [Sheila] And Jenny Pizer, who is the Director of the Marriage Project at Lambda Legal. Welcome, all three. - Thank you. - Thanks, thanks. - So, Jon, let's start with you. Let's talk about Don't Ask, Don't Tell. Could you just give us kind of, sort of, what is that about? What kind of a law is it, how does it operate, and what has it done in the years that it's been in place? - Don't Ask, Don't Tell is the name of a federal law, statute, that was passed in 1993. And it really puts into a federal statutory law a number of policies that have existed for more than 50 years, really, became the military's policy around the time of World War II, that made it impossible for gay people to be open about who they are and serve in the military. And it still, as in that period of time, will allow you to be discharged if you acknowledge that you're lesbian, gay, or bisexual, or if you engage in conduct that, either sexual or affectional conduct with a person of the same sex, that is deemed to show a propensity to engage in sex with people of the same sex. So, it doesn't even have to itself be engaging in sexual activity expressly. Or if you marry or attempt to marry a person of the same sex. So, that's been the policy that was turned into a statute in 1993. And it was proclaimed as being a compromise, because it said, "Well, we'll acknowledge that "there are gay people serving in the military, (Sheila chuckles) "and we're not gonna say that you can't be gay "and be in the military. "It's just, if we find out about it, "it's gonna be a problem." It was supposed to be, "You don't tell, "and we, the military, won't ask." But the, and it was originally called, Don't Ask, Don't Tell, Don't Pursue, which meant we wouldn't kind of try to find out who the gay people were. But in reality, there have been many instances where information has come from third parties, and then they have done investigations, and drum people out. The reality is that more than 33,000 people have been discharged from the military since Don't Ask, Don't Tell became the policy. And sadly, even though President Obama has said that he believes the policy should be changed, there've already been 289 people who've been kicked out of the military since he was sworn in as president. And I just think it's really, when you think about it, that's 289 lives that have really had their careers destroyed, and people who've put their lives on the line for our country who have been told, "We don't want you, simply because of who you are." And the policy ends up costing the country millions and millions of dollars, to have to replace people who are doing their jobs well. And it has led to, really, a serious harm to, I think, our efforts to fight on behalf of the country. One study that was done looked at, over the last five years, 800 service members who were in kind of mission critical positions, including 59 trained linguists who were fluent in Arabic and nine who were fluent in Farsi, were kicked out. I mean, those are people that we need (chuckles) in the wars that we're fighting right now. And the question is, why? Why is this being done? I think the idea originally was that they thought that heterosexual service members would just feel uncomfortable sharing barracks, sharing submarines was, I think, the picture at the time. (chuckles) And the reality is that who's in the military has changed, as the country has changed. And a recent poll that was done in 2006 of service members found that 73% of them said that they were comfortable with lesbian and gay people, (chuckles) and really, did not have a problem with having service members who are openly gay or lesbian. - So, the theory at the beginning, because it was an outright ban before '93, the theory at the beginning, or for this, really, was, but it went beyond, it had to go, at least a public theory about the reason for it, had to go beyond simple discomfort. I mean, what were the other sorts of maybe even legal reasons that they were using about keeping the ban in place? - The principal reason they gave was unit cohesion. They said that when you're in a foxhole, you need to really feel like the people there with you are people you will lay down your life for, and that would lay down their life for you. But it was really no different than saying, basically, "We think there's prejudice against gay people." I think there was a concern that maybe some members of the military might not accept commands from people who were lesbian or gay. But what's strange is, is there more homophobia in the military now than there was racism at the time that the military was desegregated? You know, that was instituted by an executive order, and it's not like there were no problems, but the military has become one of the most kind of racially integrated, and a place of opportunities for a lot of people of color. - Well, and it's interesting, too, because, as you said, sort of the new Army, which is volunteer at the moment, probably has a different kind of makeup about this. But honestly speaking, isn't there still violence against gay and lesbian people in the service? I mean, you hear kind of stories, and they've made movies and things about it. - No, definitely. It's not like there are no instances of homophobia. There was a 28-year-old service member who was murdered just recently. And, you know, there are questions about whether it was because he was gay or not. But you know, so, it's not like there are no problems in the military. There's certainly still incredible sexism and sexual harassment that goes on within the military, and that's been a particular problem for lesbians in the military who are targeted by heterosexual men. It's like, "If you won't sleep with me, "I'll tell everybody that you're a lesbian, "and then you'll get discharged." - Or, "All you need to do is sleep with me, "and you won't be a lesbian anymore." (Jon laughs) Right, Jenny? We have certainly heard some of those things. (both laugh) "Worked for me!", no. - But you know, there have been ongoing efforts to change the policy. And there is a bill right now, in Congress, the Military Readiness Enhancement Act, HR1283. And it's what people need to be pushing members of Congress to become co-sponsors of, and to have hearings, and to have it pass. - Now, why does it have to be passed by Congress? I think people would wonder, can't you just sue, and say, "This is discrimination," and have a court decide that the military ought to drop this policy? - There have been a number of suits. The ones that kind of are concluded so far have all been unsuccessful, but there are two cases that are still going on. And there's one that came out of Washington state, where it went up to the federal Ninth Circuit Court of Appeals this last year, and they held that the policy could be challenged by looking at it at an as applied basis, looking to this particular Major Witt, who, she was, again, kind of very high up in the National Guard, and she was one of these examples of somebody who was discharged after there was an anonymous tip that she was living with another woman, a hundred miles away from base. And there was an investigation, and she was discharged. And what she said was, "Well, "it's just not true that people finding out "I was a lesbian hurt unit cohesion and morale. "In fact, it was the discharge of me "that hurt unit cohesion and morale." And the Ninth Circuit said she was entitled to try to prove that. - So, they would have jurisdiction, even though it's the military? - Right. The problem that's existed in a lot of the legal challenges is there's a general judicial deference to what Congress does in the area- - [Sheila] Or the president. - Of dealing with the military, and to their personnel policies in general. And so, it's made it difficult to challenge the policy. And that's why this was an important decision, this Witt case. And one of the interesting things was looking at whether the Obama administration was going to ask the US Supreme Court to hear that case, and they decided not to. They decided to allow it to go back to the trial court and actually have a hearing to determine whether or not it was unconstitutional to kick her out, at least. And that would be important, to get that ruling, even though it would only individually affect her, because it would require that you show, in any particular case, that there was a need to discharge this person. And generally, the government's not gonna be able to show that. But I think, you know, and it also, I think, shows the fallacy behind the policy. And I think in general, looking at how laws that discriminate against gay people play out on an individual basis really helps show how irrational they are, and how there's nothing behind them. - And there was that cartoon that I think got actually reprinted in a number of papers of two service people torturing, sort of the classic torture picture from Iraq. And one of the military guys says to the other, "What did he say?" And the other one says, "I don't know, "they kicked out our interpreter for being gay." So, this is sort of what you're saying, on a case by case basis. Sky, let's go back a little bit in history, because I know that you were engaged in, actually, with the Clinton campaign early on, and kind of were in Washington when all of this kind of came about. Tell us a little bit about your history with Clinton, even the 1988 Clinton. - Yeah, I was sort of a witness to all of Don't Ask, Don't Tell as it unfolded in Washington in '93, but I first met Bill Clinton in 1987 when he was the governor of Arkansas, and was considering jumping into the presidential race in 1988. Gary Hart had been the front runner, and in fact, I had moved to Denver to work for Gary Hart, and found myself high and dry there when that campaign imploded. (Sheila laughs) But we did get a decent severance from the Clinton campaign, those of us who were working there on the national campaign, and not having any place else to go, I hung around Denver for the rest of that summer, trying to figure out what my next move would be. And while I was there, Bill Clinton came through the state, sort of testing the waters, and he was fairly much unknown on the national scene at that time. And he had a little event, I mean, a very small event, in the backyard of someone's home, in fact, David Mixner's sister, in Denver. And I went, along with maybe 15 or 20 other people, so I had a long, extended conversation with him, and was very impressed with him. Had known a little bit about him before, but was even more impressed seeing him in person. And I told him that I had just left the Hart campaign, was looking for another campaign to hitch onto. And he said, "Don't make any decisions "'til you hear from me." So, we sort of kept in touch. He ended up not running that year, and I went off to do some other stuff. But when he did end up running in '92, the campaign got in touch with me again, and I ended up being the convention manager for the Democratic National Convention of the Clinton campaign in Madison Square Garden, in New York. And then, I came back to California, and was the Chief of Staff of the California state campaign, and then after the victory, was in Little Rock during the transition to the new administration. - So, how did Don't Ask, Don't Tell even get on anybody's plate? - Well, he, President Clinton, Governor Clinton at the time, pledged several times during the campaign, in different venues, that he would overturn the ban on gays and lesbians in the military. I believe, based on subsequent conversations, that he said that out of good instincts, but without having done any homework about what that would entail, what the obstacles would be, et cetera. By the time he'd won and was moving into the new administration, it was clear that this pledge had no advocates, including him, (chuckles) in the new administration. I was very interested in working on this issue. And while I was in Little Rock for the transition, I asked everybody that I could think of, "Who's working on this? "How can I get involved?" I wasn't jocking for a position in the State Department or the Justice Department, but I was very interested in this issue for a variety of reasons, and no one was paying any attention to it. Nobody was making any plan. It was clear that this was something that they knew about, I mean, it was there, but they were just hoping it would somehow go away. So, there was no plan in place. But on the other hand, there had been media on this, and the profile wasn't going to go away. And more importantly, the opponents had been mobilizing during this period of time. So, Clinton came into the administration, came into office with no real plan. The other side was very well-mobilized, and he was on his heels from the beginning of the administration laws. And the long process of the seven or eight months in early 1993 were difficult and discouraging, because it was clear that there was no commitment, really, to follow through on the pledge, in fact, just the opposite. It was more of a damage control mode from the outset, and of course, you can't have any success if that's how you go into it. - So, who was pushing him, on our side? - Well, I don't know that anybody really was. I mean, there'd been a lot of media exposure, and so it was a high profile issue for the media, because it was, you know, it was controversial. Clinton's own military background, or lack thereof, had made him less than a favorite of the military establishment, so there was some drama in this pledge. But once he'd made it, then, gay and lesbian folks, and other civil rights and civil liberties groups were interested in helping him live up to his pledge. And in fact, a group of organizations came together and formed this coalition called Campaign for Military Service, which I eventually went to Washington to work for, which was designed to help, ostensibly, to help president Clinton live up to his pledge. We ended up trying to persuade him to stay by what he was going to say- - To do anything, right. - Do something at all. So, Human Rights Campaign, called Human Rights Campaign Fund at that time, National Gay and Lesbian Task Force, People for the American Way, ACLU, and other groups funded this effort, and some private givers, I think David Geffen gave some money. So, we had a staff, eventually, of 15 or 20 people working in Washington, out of the offices of the Religious Action Center of Reform Judaism. - And so, how did you work on this, and what eventually then happened that sort of ended up in this compromise? - Well, the Campaign for Military Service had a number of components. We had legal scholars. Chai Feldblum of Georgetown University, a brilliant legal mind, was working on the legal angle. We had, the lobbyists were working on the Hill. Tom Sheridan was our chief lobbyist there. And we did public relations stuff. We had a bus tour that went around the country with veterans to sort of drum up some public support for it. So, we were working every aspect, and of course, working with the administration, which was the biggest problem, trying to find someone there who would sort of stick to the guns of actually trying to do the right thing, even if the right thing was not gonna be successful, not to cave, which is, it was pretty clear by the end of January, that the president was willing to kowtow to the military brass and the others, and lost the momentum on it. So, it was just a struggle to get them to minimize the damage, at that point. - So, the compromise was, theoretically, that if you didn't make a big deal out of it, and it wasn't just that you'd been told on, that you would be able to continue your service. - Theoretically, it was a compromise. I mean, it was sold as a compromise. Nobody who was working on it, from our point of view, thought it was a compromise at all. We were opposed to it from the outset. And I think the ensuing 16 years have shown that it's, in some ways, I've always felt it's a more dishonorable policy than the previous one, because what this policy says, "If you're willing to lie, "then we'll overlook the fact that you're gay, "unless it comes to our attention, "in which case, we'll kick you out anyway." (Sheila chuckles) So, they're asking people to put their lives on the line, as Jon was saying, while they essentially lied about who they are in a day-to-day situation. And people need to be clear that it's not about keeping your sexual orientation private, it is about having to lie. We're talking about people who spend their off-duty time together, take their meals together, and what do people talk about in those situations? They talk about their family, their relationships, their girlfriends, their boyfriends. And you're asking the gay and lesbian service members to, at best, engage in elaborate evasions with people that they're closest to. And going back to the point that Jon made about the reason for this policy, unit cohesion, I mean, it's extraordinarily counterintuitive, that creating a situation where there's suspicion, but you can't ask a question, is somehow going to bond people together, whereas honesty would not. I mean, it's an absurdity. It's outrageous on a moral sense, but it's absurd on a practical sense. - And you grew up in a military family. - Well, the whole unit cohesion argument resonates very strongly with me. My father was a career military officer. He joined the Army in 1940, when it was segregated. And the arguments made against the integration of the services in 1947, '48, were, and I mean literally, word for word, exactly the same kinds of arguments that were used, and are continued to be used, in some cases, against gays and lesbians serving openly in the military, that the conservative parents wouldn't let their sons and daughters join a military with gay people, just substitute black people, sharing sleeping quarters with black people, eating in the same commissary. It's exactly the same arguments, in some cases, made by the same people. So, it's striking to me. It was absurd then, it's absurd now, and the sooner we can get rid of it, the better. It's a blight on the honor and integrity of the services. - Well, when we talk all together, I wanna talk about kind of what's happening in terms of changing this policy. But as a transition, I want to talk about the Defense of Marriage Act, because that was another gift of the Clinton administration. (Sky chuckles) And you were, were you there for the discussion of this, as well? - No, I'd come back to California by then, but I was working in a policy position with the Gay and Lesbian Center, and we were doing extensive lobbying in Washington at that time. So, I was back and forth there, and somewhat familiar with some of the background on that issue, as well. - It was a bill that was brought by- - Bob Barr, I think, was one of the lead sponsors. He was a Congress member from Georgia at that time, a Republican. And his motivation, there'd been, by that time, the Hawaii marriage ruling in favor of a couple, at least a preliminary ruling, in favor of a same sex couple, a lesbian couple, being married there, and this set off national alarms from the usual suspects, and Bob Barr, among other colleagues, took the initiative to make sure that if some runaway activist court with liberal judges did allow these folks to get married somewhere, that it wouldn't count as far as the federal government was concerned, or any other state. And of course, it was overwhelmingly popular at the time that it was passed. There wasn't, I think there was 67 votes against, ultimately, in the House, and 14 in the Senate. So, and again, President Clinton signed it, caved completely on that issue, 'cause he had even less reason to stand up for that than he had to stand up for his initial pledge on it. - Well, of course when Jerry Brown signed the marriage is only between a man and a woman bill in California, he said that he didn't even think twice about it, because it wasn't even a possibility, and what, you know, "Why would there be any argument against this?" So, I mean, there is history, and there is time, but- - Although when Jerry Brown signed, that was a little bit earlier, but by the time Clinton- - [Sheila] Quite a bit earlier, actually. 20 years or something, right? (Sky laughs) - By the time it got to the Clinton administration, it was pretty clear that this might happen. - [Sheila] Yeah, he changed his mind by now. (chuckles) - It might happen, and therefore, it really was, it really was sort of a pernicious- - A betrayal, no question. - A betrayal, yeah. - Well, Jenny, let me ask you, just as I asked Jon, kind of for our viewers, to lay out kind of, what is this thing? Could you just give us sort of Defense of Marriage Act, or DOMA, as it's called, 101? Kind of what is it, and how does it operate? - Yeah, as we sometimes, say, dumb-a, dumb-a. - [Sheila] (laughs) Dumb-a. - So, this is a federal law, passed by Congress, signed by the president, and we talk about it as having two important, different parts. The first part sets out to say that if one state allows gay and lesbian couples to marry, other states don't have to respect that marriage if they don't want to. And the theory behind that, and we think it's not a strong theory, we think it fails legally, but the idea was that the federal constitution can be understood to require states to respect marriages granted one state to the other so that couples who are married can travel state to state without, as we sometimes say, needing a visa, a marriage visa, each time they cross a state line. Our country has never operated that way. And many people think that the federal constitution has something to say about that to allow free travel. Other people think it isn't necessarily required to respect marriages. Interestingly enough, we've had this country of ours for, you know, a couple hundred years, and we don't have a definitive answer to that question. - So, it's not a Full Faith and Credit kind of thing, like when you get a judgment in one state, and it's good in your state as well? - Well, this is exactly the question. So, the clause we're talking about is Full Faith and Credit, and it is clear that if you have a judgment, if you have a judgment of divorce from one state, then another state must respect that, because judgements must be respected. - [Sheila] So that's by a court. - By a court. But paradoxically, it's as yet unanswered whether for sure your marriage has to be respected. And logically, it should be, and we think there's strong arguments why it should be. We're not exactly sure, but in 1996, when we were actually actively engaged in Hawaii in litigating marriage rights for same sex couples there, we were having our trial, and exactly at that same moment, Congress, members of Congress, Bob Barr and others, were so alarmed that there might be marriages in Hawaii, as if this was such an odd idea, people go to Hawaii to get married all the time, (Sheila laughs) but that this was such a threat to marriage everywhere that they should pass this bill. And an important part of the discussion there was, Full Faith and Credit may require other states to respect gay and lesbian couples' marriages duly celebrated in Hawaii if we prevailed in our litigation. And in fact, we did win the trial, which was really tremendous. But so, that was sort of a preventive measure. And there had never been a rule like that, ever, at the federal level, to make a specific exception that states would be specially authorized to respect everybody's marriages except ours. So, and that itself is one of the legal questions we've had, because marriage has, historically, from the beginning and still, been the special province of states. Family law is essentially state law. And so, for Congress to inject itself in that regard was, well, it's kind of problematic. It interferes with principles, we say federalism principles of what's the main authority of states and what's the purview of federal government. - Well, but you can see why states might want to, let's take it out of the arena, for a minute, of gay and lesbian marriages, but let's say, in California, you can't get married if you're younger than 18, or whatever. And in, let's say in Mississippi, you can get married when you're 14. So, two 14-year-olds get married in Mississippi, California might say, "You know, "if you can't get married here, "we have a policy against that. "We don't wanna recognize that marriage. "But we would be required to, "one would think, by something." Although, what you're saying is, the possibility has been raised that we wouldn't have to anyway. But Congress was saying, "Let's just make sure, "and give them permission not to recognize "this one kind of marriage." - That's exactly right. And part of why we don't know the answer to the constitutional question, what does Full Faith and Credit Clause have to say about all this, we don't know the answer because states have worked this out through laws, through statutes, saying, "We are going to respect," this has been California's rule for, it was California's rule for many years, until the question of gay and lesbian couples getting married came up. The rule was that if you were validly married in another state, California would respect it. But those were statutes. Those were, we call those conflict of law rules, and the states had worked them out in order to make it possible for people to travel. And there were, of course, if you're talking about law, there's always layers of complexity. So, there were some rules that said, some states had rules that said "If you lived in another state and you were validly married, "and you came to this state, we'll respect you. "But if you live here and you're going "to another state to get married to evade our rule, "then we won't allow you to do that." So, and those are called evasion rules, and then there's reverse evasion rules. And it's all very, (Sheila laughs) the more time goes by, we make it more complicated. But what's simple in this is that when a special exception is made to target specifically and treat differently the marriages of gay and lesbian couples, then we also have a full, we also have an equal protection problem. And that's definitely in the mix here, and we've seen it in California, as an example. Our law in California was quite clear that if you were validly married somewhere else, California would respect you as married, even if it was a kind of marriage about which we had a very, very strong negative policy, like the standard ones, a person who's married to more than one person, that's sort of the classic example. In California, there were a number of cases where a person had been married, had two wives, died in California. I mean, these cases often involve, well, it's not actually two existing marriages. The person passed away, and lo and behold, it's complicated, because there are two surviving spouses. Shall we divide the property between the two of them? And in some of those cases, the court said, "Well, we really don't like this situation at all, "but we have two widows, we should divide the property." So, bottom line is, California was willing to respect many kinds of marriages, in some circumstances, that we really don't like, but we made a special exception about gay and lesbian couples' marriages. - Well, let me interrupt you for a minute, because one of the things that I think is important to understand about the Defense of Marriage Act is that it didn't say in the law, "No state will recognize anyone else's marriage, right?" - That's right. - It said, states may, had to take some affirmative step in the law in each state to say, "We're not going to recognize those marriages," which is how the Knight bill came to be. - That's right. So, the idea was that Congress was saying, essentially, "Don't worry about Full Faith and Credit. "If you want to have a special state rule "that denies respect to gay "and lesbian couples' marriages, you can. "We, the federal government, are going to say "that the federal constitution will not prevent you from-" - So, they're opening the space, but you have to make the law. - But you make your own law. Now, I should just shift for a minute and say, so, well, so, and California did adopt such a rule. There were efforts in the legislature, repeated efforts, to change our rule to allow that kind of discrimination against married gay and lesbian couples that married somewhere else. Those never succeeded, although there was quite a lot of struggle. And many of us were very grateful for the work that you did in the legislature consistently, with some wonderful colleagues. - Well, it was me and my whole caucus, who said, "We're not gonna do this." - That's right, but it was years of fighting. And then, when Pete Knight, who had been carrying the banner on this type of discrimination for a long time, he failed- - Who has a gay son. - And who has a gay son. And, you know, we often have found ourselves saying, "You know, family therapy would've been such a good idea! (Sheila laughs) "Why play it out at our expense?" In any event, then, we had the initiative statute that passed in California in March of 2000, Prop 22, that changed the rule that way for California. And that's the initiative statute that we successfully got rid of in the marriage litigation that was decided in May of 2008, with the important decision that opened, that opened marriage to same sex couples for four and a half months in California. I should shift quickly and focus on the other part of the federal DOMA, the federal statute, that for the first time said that the federal government was going to have a rule about what counts as a marriage. As I was saying, marriage and family law have always been the special province of the states, and the federal government never had a definition, if you will, or rules about who could marry whom. Instead, the rule, since the beginning, has been that if you are validly married under state law, the federal government will treat you as married, because the federal government did not want to create federal family law. And among the one might call them ironies of this whole situation is that Bob Barr, who was one of the chief proponents of DOMA, was a strong believer in federalism, meaning states' rights, in this instance. And yet, he was the proponent of a statute that created this special exception to say, "Oh, but we're gonna have federal family law on this issue." So, for federal purposes, if you are validly married, and we have thousands of couples now that, gay and lesbian couples, who are validly married, and are subject to all the rights and duties under state law as legal spouses, the federal government will not respect them as married, because this other part of DOMA says, "For federal law purposes, "wherever we use the word marriage, "we mean a marriage of one man and one woman, "and the word spouse is only to mean "a person of the opposite sex." You always think, "Well, what's, "the opposite sex of oneself?" What does that mean? - Opposite of what? (laughs) - Exactly. But the point being, you can be validly married, which thousands of lesbians and gay men are today, and the federal government treats their marriages as legally irrelevant or as invisible. And that is rank, blatant discrimination, because everyone else- - Well, and economic discrimination, too, right? I mean, what kind of things are we talking about that you get if, let's say your marriage is recognized by, or validated by the federal government, what do you get? Social Security, right? You get all of these benefits that spouses can get under federal law. - That's right. They can be, many of them are dollars and cents, fair treatment. Many of them are things that people themselves are paying for. If you think about Social Security, all of us, we work, we pay into that program throughout our working lives, through payroll deductions. And part of that program is to have a pension safety net for one's other half. I mean, when you are paying into that system, and then you retire, you draw your own pension. And if you then die, if you have a legal spouse who is depending on that income, that legal spouse is entitled to still draw a pension to be able to survive. I mean, that was sort of the core concept from the beginning of Social Security, is that you're looking after family units, and you're presuming something that, for many people, is no longer the case, but that one person might be a wage earner, the other might be raising children, and maintaining a home, and that that stay at home spouse needs to survive financially if the wage earner dies first. Well, for same sex couples who pay into that program, to the penny, the same, there's no exemption from the duty to pay into that program. And yet, if you predecease your spouse, your spouse can end up destitute. And we, it gets even more complicated than that, sometimes, because think about programs like Medi-Cal, the healthcare program for the poorest members of our society, who are desperate for care. Well, that's a joint federal state program. It's run by the federal government with some federal money, matching state money, administered by the state. And there are rules there about who can become eligible to receive care. You have to be really, really poor. And you can have a situation, we do have a situation, of couples that are married, so that as a legal matter, what is the property of one is the property of the other. The way the program works is that a, that spouses would have to spend down to a certain poverty level before a desperately sick person could get healthcare based on being poor, but they would be able to safeguard some assets so the spouse can survive. Well, the situation that we now have with same sex spouses is that the money of both is counted, because it's owned together, but there's no safety net to provide any financial resources for the spouse, because the eligibility for the safety net, or the safe harbor, depends on the government recognizing the spouse. So, that can require a spending down of everything, and nothing for the spouse. And federal law, a figure that we often cite to, in 1,138 places, according to the General Accounting Office, treats you differently, that many rules, based on marital status in a marriage. There are many, many places, from tax returns, to Social Security, to income tax, to how veterans are treated. And this is how this issue intersects with the military policy, too. - Right, overlaps. - There's sort of dual exclusions of people who honorably serve, may die, and a spouse would not have the ability to be buried at their side. - Right, because they're, well, and there are federal pensions, there are military pensions, all kinds of things. - A lot of dollars and cents, as well as dignity, of course. - Let me open it up then, and let's talk about what is being done, or what the various movements might be around doing away with this. Is there, are there cases, are there organizations- - There are lots of cases. On DOMA, there's quite a few. - Well, there's multiple cases. - Well, Massachusetts just- - Let's talk about DOMA first, then. - Well, as Sky was saying, so there are two very important, exciting cases that have been filed in Massachusetts, challenging DOMA. One, the name of it is Gil v. Office of Personnel Management, and it's brought on behalf of about a dozen and a half plaintiffs, some couples, and some surviving spouse individuals, challenging things like the income tax discrimination, and Social Security, and a number of those issues. - [Sheila] And the theory is equal- - And the theory is equal protection, yes, that this is a situation where Massachusetts marries, allows residents of Massachusetts and others to marry, and they are legally married under state law with all the same duties to each other and to the public. And yet, the federal government is discriminating against these two groups of married couples, based on their sexual orientation, their sex, without any good reason for doing it. And the argument in that litigation is that the federal government needs not just a good reason, but a very, very good reason for this type of discrimination. So, that litigation is testing, is sort of showing harm under a number of different federal statutes that all flow from DOMA requiring discrimination, or rendering those marriages and those married couples invisible in terms of protections they should have. - And the state filed one too, right? - Exactly, just last week. - Yeah, the attorney general, just this past week. - So, very- - On similar grounds. - Well, and there's two sort of interesting, important parts of that case. So, this is a first, and it's a very exciting development to have a state, or in this instance, the Commonwealth of Massachusetts suing in its own behalf, but also on behalf of its residents, And they make a couple of arguments that private citizens can't make, one of which is to say, "Hey, we, as the state, have particular rights "and prerogative, and you, "the federal government, are infringing "on our rights as a state, "and you're coercing us into discriminating "against our own residents, which we don't want to do. "In particular, you're using the power of the federal purse "to require us to discriminate." And one of the powerful examples that they present relates to what I was just saying about the healthcare system, that there is a threat that if Massachusetts doesn't discriminate against its own married gay and lesbian residents, with respect to the healthcare system, then Massachusetts is at risk for having all of their healthcare money cut off. And so, it's a coercive, the argument is, in terms of the spending clause, which is the clause in the federal constitution, but the argument is, it's a coercive misuse of federal financial power to require a state to discriminate. And this, I think, is very important, both because these are powerful legal arguments, but also, it's a kind of leadership that is very welcome and important, to say, "Look, there's no good reason for this discrimination. "It's wrong, and it hurts people." And here, we have a state, Massachusetts, where couples have been getting married for five years. It is the established law of the state. It's an important part of the principle that the governor of the state and the attorney general of the state hold dear, which is to not discriminate against their own people. And it's a state saying, "You're hurting us. "You're hurting the government, "you're hurting the whole state, "and you're particularly hurting some "of our most vulnerable residents." So, it's incredibly important and exciting. - So, there are these two leading cases in Massachusetts about Defense of Marriage Act. And I mentioned one of the cases that's still going on, about the Don't Ask, Don't Tell policy, but I think the real question that's going on right now is, "Well, why do we have to wait for the courts "to resolve any of this?" These are both instances where our federal government is expressly discriminating against gay people. I mean, there is no state law anywhere anymore that says, "We will fire you if you're gay." Why is that our federal law? And, you know- - [Jennifer] With respect to military. - No, with respect to the military, but with respect to any job anymore, there's no state, not even any local government anymore, that has a law that says, "You can't work for us if you're gay." It's only the federal law with respect to the military that we still have such- - You mean in the affirmative- - In the affirmative. - [Sheila] Because we don't have protections. - There are a lot of states where there's no protection. There are only 21 states now that have protections. - Still though, I understand the distinction. It's like, "You must fire gay people." - And similarly, here, we've singled out gay people to say, "We'll honor all other marriages that any state law allows, "except for the marriages of gay people. "We'll discriminate expressly "against lesbian and gay couples, and not have "the federal government recognize those marriages." It's the federal government expressly discriminating on the basis of sexual orientation. - So when you say, "Why should we wait for the courts-" - Right, well, these are things that Congress can fix. - [Sky] Congress can and should fix. - And there, as I mentioned, there is a bill already introduced in Congress, the Military Readiness Enhancement Act, but there's been no movement on it. There have been calls for the repeal of the Defense of Marriage Act, nothing's happening on it. - [Sky] There's not even a bill on that, at the present time. - Well, although I will say, there is a lot of focus on it, which is very welcome. I mean, it's a long time coming. Candidate Obama called very explicitly for the repeal of DOMA, both, the two parts of it, the part about interstate recognition, and the part about federal respect. He called for the full repeal, and he has reiterated that as president. And of course, there's a lot more that he can do. And there are members in both the, on the House side and the Senate side who are busily drafting, and we've actually had lots of discussion among the LGBT legal and advocacy groups about the different ways to do it, different strategies for doing it. And there are people in both houses of Congress who are eager to move on it. Although, I think there should be more eagerness, and there should be a lot more people joining that. And I think there will be, there will be bills in both houses, I think, soon. The question, and this is what Jon is saying, there need to not just be bills, there need to be hearings, there need to be co-sponsors, and there needs to be action. - Well, let me go to the White House first, 'cause I, your experienced with the Clinton White House, and this is all looking very familiar, kind of, now. And I don't fault, I mean, I voted very enthusiastically for President Obama, and I want to cut him as much slack as I possibly can, because he's not the head of the gay and lesbian movement, and nor is he really going to be our savior, or anyone else's, frankly. He's the president, and we need to create an environment in which he can safely move this stuff forward. So, I've never been one to say, "How come he's not doing it? "I'm waiting at home for him to do it." But given the inner workings of a White House, just from your point of view, what do you think is going on in the White House now around this stuff, Sky? I know- - That's a tea leaf reading, I think. - Yeah, it is. I know you don't talk to Obama every day, but no, seriously. (Sky chuckles) - And well, clearly, the jury's still out on whether president Obama is going to follow through with some energy and enthusiasm on these campaign pledges. Clearly, he hasn't so far, and of course, that became a significant media issue just in the past couple of weeks, because it reached a tipping point, in terms of where his supporters were on this question. It isn't so much that I think people felt like, "Well, this should have been solved by now," but it was really clear that the signals coming from the Obama administration on both these issues were not encouraging. If there had been some sign from him or people on his staff that, you know, "We're working on this," or, "We're moving in that direction," I think people would've been inclined to be a little bit more patient and open-minded. - And you wouldn't see him as being surprised, the way Bill Clinton was kind of, with how much more complicated this was than he even thought it was. - No, no, no, he's much more thoughtful about. Much more thoughtful about it. - Maybe to the other extreme, I mean, it does seem as though he certainly saw that some of these issues created a problem for President Clinton, and if anything, it seems as though he's a lot more cautious than we think he should be. - More cautious, I think that's it. I think he learned some of the wrong lessons, though, from the Clinton experience. It wasn't so much that Clinton engaged in these issues, it was that he engaged in them without any forethought, and without a specific plan, and allowed the momentum to go the other way. And also, that was 16 years ago. I mean, they're way behind, especially on Don't Ask, Don't Tell. Congress is way behind the American people. - You know, 75% of the American public thinks this law should be changed. - The Don't Ask, Don't Tell. - Don't Ask, Don't Tell. - And you know, there's much stronger support for it than there is for, unfortunately, for healthcare reform. And these are easy bills to pass. What I don't understand is why the Democratic leadership in Congress is not doing something about it. There are these, there's both the repeal of Don't Ask, Don't Tell, there's the repeal of the Defense of Marriage Act, there's passage of the Employment Non-Discrimination Act, hate crimes law, and Uniting American Families Act, and then, there's about domestic partnership benefits for gay people. There's a large list of things that we want, but they're all pretty simple, and they're not complicated pieces of legislation. - Well, one of the things, though, that I found in the legislature is that it looks like, when you have a poll out there, and everybody seems to be just fine with something, that we ought to be able to bring a bill, and everybody votes for it. But the problem is, you really still need to count your votes. And often, the members of a legislative body, and this is certainly true of the 430 odd, and I mean odd, (laughing) people in Congress, it's often the case that they don't bring things for a hearing, or don't bring things for a vote until they can count their votes. And I'm not certain at the moment, unless, I don't know what you've heard or seen, that Congress is just ready to go on doing it. But it felt like they might be- - [Sky] Especially on DOMA. - They're not moving fast enough, especially on DOMA. - But I would, I mean, I would, I think part of the issue is that we've just had eight years of an administration that was so overtly hostile to all LGBT rights issues that issues like DOMA, that there was, it didn't seem, I think, top of the list for many members of Congress to focus on those issues, and so there wasn't a lot of educational work done during that period of time, because it was so clear, nothing, no bills would get signed. So now, there really is an urgent need to do some of the educating, some of the, providing the polling information about both of these issues. I wanted to just focus for a minute back on the White House, because I think when we have the issue, there is an error, I think, that's being repeated from the Clinton days in the following respect. I think that they are being very cautious, that, I think they're being too cautious. That's a lesson that makes some sense to me, though. What has been more surprising was a lack of focus on doing the homework, which I think was a little bit what you were saying, that President Clinton didn't know enough about the military issue at the point that he picked that one. We were frankly shocked at a brief that was filed by the Department of Justice in one of the other legal challenges to DOMA. This is a case that's pending in the federal court in Orange County that is challenging both Proposition 8, here in California, and also the Defense of Marriage Act, where the Department of Justice filed a legal brief defending that statute, and many of the arguments in it, frankly, were appalling to us, and quite shocking. There are arguments about whether the administration does or doesn't have a duty to defend a statute, and how patently unconstitutional does something have to be before they say, "We just won't defend this"? People have different views on that. But there were arguments in that brief that looked all too familiar from what we saw from the Bush administration. And I think what it represented, and there's been lots of public discussion, and a lot of expressions, on some of our parts, of dismay about that, I think it represented a failure on the part of senior administration officials to take these issues seriously enough and do some homework, and to send an instruction to the lawyers that work on the cases. I mean, Department of Justice has a very wide docket, many lawyers doing serious work, much of it's very detailed. The president and his attorney general are not going to be experts in all those fields. But it is important, as part of leadership, to say, "There's a community of people "who experience discrimination. "We have a commitment to reduce discrimination. "We've said that, we mean it. "Study this subject, do a good job. "Make credible, responsible arguments, "don't just recycle the briefs "that you've been using during the last eight years." - [Sheila] Right, and that's what happened. - There was even a new argument, and that I think people understand what- - A new argument in this brief, here. - That they came up with in this brief, which was that the government should be neutral with respect to the issue of same sex couples getting married, because it wasn't fair to people who didn't support same sex couples getting married that they should have their tax dollars going to support those couples. And it's like, "Wait a minute, "what about the same sex couples who pay taxes "who are being denied the benefits themselves?" People who have some moral or religious objective to other people's marriages are not entitled, in the name of neutrality, to have those people not get the federal benefits! - Well, it was very lazy work on the part of the Justice Department. I mean, the most generous thing that could be said about it was that they did exactly recycle some of those arguments without making any, without having any thought about what they said, or about how bad the arguments were, or what sort of right wing language was in there, comparing it to incest, for example. - And here's another example. It says that it's not discrimination against gay and lesbian couples to have this DOMA statute, because gay and lesbian people didn't have respected marriages before it was passed, and don't have them now. It's like, well, when it was passed, there weren't any married gay and lesbian couples. (chuckles) Now, there are. It's discrimination! The only difference between, if you have these two classes of people, Massachusetts, Connecticut, Iowa, here in California, there's 18,000 married gay and lesbian couples in California, this group of couples pays their full taxes, payroll deductions, has all the legal responsibilities, and the only difference between those couples and the ones who receive respect from the federal government is their sexual orientation. It's the only difference. - [Sheila] Now, what, go ahead, Jon. - Well, I think there's a really important lesson to be learned here, though. There was a widespread, angry reaction to the arguments that were made in this brief. And there were a lot of people who wrote letters and who were, in various ways, expressing to their government how upset they were with the positions being taken. - [Sheila] By the Justice Department. - By the Justice Department, but- - [Sky] And by extension, the Obama administration. - Right, and so there was kind of a lot of things written in newspaper letters to the editor, op-eds, and it got to the point of people saying, "Well, we're gonna stop giving money "to the Democratic party." And there was a big fundraiser where a lot of people said, "We're backing out of this because we're so angry "that the administration is really not," not only not doing anything for gay people, but is hurting gay people. And suddenly, there was attention paid. There were meetings at the White House. There were, finally, the Employment Non-Discrimination Act got introduced. The president held a press conference and said he's gonna extend certain kinds of benefits that he felt he could extend, notwithstanding the Defense of Marriage Act. We think he could have done a lot more, and some of the things that were announced, really, were things that were already being provided, but at least they felt they had to respond. And I think that the lesson there for us is, we're not gonna get anything unless we demand it. We have to be very vocal. We have to be telling the administration and telling our representatives in Congress that they have to take action. That's the only thing they respond to. - And I would add to that, the conservatives who organize and raise money about discrimination against us, who still find us a very effective tool, they say what they want. And they're having lots of conversations with members of Congress and with this administration. And we have seen this administration appoint all sorts of people who don't support LGBT people to ambassadorships, to cabinet positions, to committees. And we can understand this, that the president does seem to go by this, whatever the thing is, of cabinet of one's enemies and friend, whatever that Lincoln book was of it, (Sheila chuckles) sort of have a lot of different ideas, kind of the opposite of what some people have said about the prior administration. Have lots of different ideas in the room, bring people together, develop a policy that gives the message to lots of parts of the political and social spectrum that we're all part of this. Well, with that approach, we need to be speaking up even more vocally than we other otherwise might, because some of the people who are involved in government, some of the people who are insisting on amendments to bills, are people who think we should not have any rights, and people who believe that if somebody has a religious objection to gay people being treated equally, they should have special exemption under the law. - Well, let me say, because we're down to the last two minutes, believe it or not. I always feel like the time goes very fast, and I'm always interested in my guests. But it is not the case that we have not been present, or that we have not been pushing. I don't want to give that impression, because it sounds like the right is there, and they're really in control, and we're not. Because I think the president meeting with 250 of us and saying, "I'm going slower than you would like, "but I'm gonna get there," it's not a bad thing. I'm not letting him off the hook, but I think we need to respect our own work, too. And if you have one last thing that you would say about what you would like to see happen in the next six months, what would it be? - Well, just going to your point, I think it is important, right, the LGBT community has been a lot more vocal, but it needs to remain vocal. And some of our liberal non-LGBT colleagues have told us that this is, you know, "He's got more important things to do, you should wait," and I think we should respectfully listen, but then ignore that advice, because it is important to continue to push, recognizing that there are other issues, but we can't wait 'til every other problem in the world is solved before this moral issue is undertaken. And so, I would encourage your viewers, anybody else, to continue to put the pressure on their members of Congress, in addition to the Obama administration, to make sure that they realize that this issue won't go away, that it is a moral issue, a civil rights issue, and we will keep pushing it until we're there. - And so, I think that means, for each lesbian and gay person, and family members- - And our allies. - What? - And our allies. - And our allies, family members, colleagues, and anyone who just cares for equality under the law, that it means visiting your members of Congress, talking with their staff, writing letters, making phone calls, writing letters to the editor, writing op-eds and trying to get them placed, but really being vocal that it is not okay to have our federal government discriminating against LGBT people, and that we need to have an Employment Non-Discrimination Act, and repeal DOMA, and repeal Don't Ask, Don't Tell, and provide for equal treatment of everybody in this country. - Jenny, I know that you agree, and we're down to 30 seconds, so I'm going to just thank you all very much for participating. Thank you Sky, thank you Jon- - Great to be here, Sheila. - Thank you Jenny. It was a really good discussion. I hope that you enjoyed it as much as I do. And remember, this is your federal government that we're talking about that is discriminating against a large segment of the population. So, I want you to be active, to remember that change is what's the important thing, so get used to it. (funky guitar music)