DOMA: Elephants on Parade
Many moons ago, Last Place Finisher and I went to law school. Our first-year class was divided into three sections, and we were in the same one. We formed a study group along with two other students who fit one particular demographic: The four of us were among a handful of older students. Not that we were that old mind you, but we hadn’t gone to law school straight out of college. Most of us had previous careers, some had spouses, some had children, and all had a variety of life experiences that uniquely added to our decisions to study law and our law-school experiences.
Professor Garbesi taught first-year Torts (a tort is a civil wrong) by the Socratic method. When using the Socratic method, the teacher formulates questions that the student cannot answer except by a correct reasoning process. Regardless of the accuracy and thoroughness of the student’s answer, the professor will practically fixate upon overlooked issues or unexplained details. And if there aren’t any of those lying about or the professor wants to move in another direction, then he or she will manipulate the facts of the actual case into a hypothetical that may or may not demand different reasoning.
Professor Garbesi’s ability to put first-year law students on the hot seat was the stuff of legends. Before our first class, our section started a hot-seat pool. Everyone chipped in $5, and the first person called upon by Garbesi would take the cash. Last Place Finisher won the cash, and along with it the respect of every person in the room, especially Garbesi’s, as he stood up to the legendary grilling with his sharp mind and good nature.
During study group sessions with Last Place Finisher, he would constantly (sometimes so relentlessly that I’d be ready to throw a Civil Procedure book at his head) pose Garbesi-esque questions about cases we were reviewing. We would spend hour upon hour discussing fact patterns and forming arguments for and against particular conclusions. Anyone on the outside looking in would be bored to tears, but we couldn’t get enough of ourselves at the time.
Although there are certain frustrations that come with someone who tugs at what may be a loose thread in your well-reasoned argument, comes too a chance for deeper thinking and growth. Last Place Finisher’s questions, and willingness to be asked questions, his conclusions, and willingness to consider other conclusions, made him a valuable study partner. Just when I’d think I had something figured out and why, he’d come along and challenge me. It was like I was Jaime Summers and he was Oscar Goldman. Last Place Finisher helped develop my bionic legal eye.
Recently, in the comment section of one of my several recents posts on California’s Proposition 8 (“Why Protest?”), Last Place Finisher asked this excellent question:
“Why argue Prop 8 while the Defense of Marriage Act is still law? Is it possible to argue that Prop 8 is unconstitutional under federal law if DOMA is still the law? Please, please, please don’t misunderstand me. I’m not saying that DOMA is either right or wrong. I’m just saying that narrowing the focus to Prop 8 ignores some pretty big issues. Feels like there’s an elephant in the room.”
Although I loved me some Clinton Presidency overall, the navy blue Gap dress was not the only place that Bill left a stain during his years in the White House. The Defense of Marriage Act of 1996 and “Don’t Ask, Don’t Tell” are two examples of such. But with a new President in office who opposed DOMA, a President who does not have a single focus, a new day is dawning. Whether the undoing of DOMA comes by repeal or in a finding by the U.S. Supreme Court that denial to same-gender couples of state marriage licenses is unconstitutional (perhaps directly as a result of California’s Proposition 8), it will be undone.
In the words of President-elect Barack Obama (excerpts are from his 2004 letter to the Windy City Times):
“[DOMA] should be repealed . . . and I will also oppose any proposal to amend the U.S. Constitution to ban gays and lesbians from marrying. This is an effort to demonize people for political advantage, and should be resisted . . . .”
“When Members of Congress passed DOMA, they were not interested in strengthening family values or protecting civil liberties. They were only interested in perpetuating division and affirming a wedge issue. . . .”
“As an African-American man, a child of an interracial marriage, a committed scholar, attorney and activist who works to protect the Bill of Rights, I am sensitive to the struggle for civil rights. As a state Senator, I have taken on the issue of civil rights for the LGBT community as if they were my own struggle because I believe strongly that the infringement of rights for any one group eventually endangers the rights enjoyed under law by the entire population.”
“We must be careful to keep our eyes on the prize—equal rights for every American.”
“No one has to guess about what I will do in Washington. My record makes it very clear. I will be an unapologetic voice for civil rights . . . .”
Last Place Finisher, the elephant is not in the room — it is on parade.
(Picture courtesy of Google Images.)