The Defense of the History of (Gay) Marriage

Gay activist and journalist Michelangelo Signorile weighs in on the growing controversy over a new book about the gay marriage battle that tends to overlook the work of a number of advocates at both the state and national level.

The book by Jo Becker, Forcing the Spring: Inside the Fight for Marriage Equality, is billed as the “definitive account” of the marriage equality battle of the past five years. Except it isn’t.

From the book’s Amazon page:

A tour de force of groundbreaking reportage by Pulitzer Prize–winning journalist Jo Becker, Forcing the Spring is the definitive account of five remarkable years in American civil rights history: when the United States experienced a tectonic shift on the issue of marriage equality. Beginning with the historical legal challenge of California’s ban on same-sex marriage, Becker expands the scope to encompass all aspects of this momentous struggle, offering a gripping behind-the-scenes narrative told with the lightning pace of the greatest legal thrillers.

Protesters outside the Supreme Court, and across from the US Congress, for the oral arguments on the gay rights cases involving DOMA and Proposition 8 in March, 2013. © John Aravosis 2013

Protesters outside the Supreme Court, and across from the US Congress, for the oral arguments on the gay rights cases involving DOMA and Proposition 8 in March, 2013. © John Aravosis 2013

For nearly five years, Becker was given free rein in the legal and political war rooms where the strategy of marriage equality was plotted. She takes us inside the remarkable campaign that rebranded a movement; into the Oval Office where the president and his advisors debated how to respond to a fast-changing political landscape; into the chambers of the federal judges who decided that today’s bans on same-sex marriage were no more constitutional than the previous century’s bans on interracial marriage; and into the mindsets of the Supreme Court judges who decided the California case and will likely soon decide the issue for the country at large. From the state-by state efforts to win marriage equality at the ballot box to the landmark Supreme Court case that struck down a law that banned legally married gay and lesbian couples from receiving federal benefits, Becker weaves together the political and legal forces that reshaped a nation.

Signorile walks through three particularly egregious examples of some serious defects in the book, including:

  • Becker’s refusal to name any state advocates who fought, and won, important gay marriage battles in their states in 2012;
  • Her effort to diminish the role, and importance, of Roberta Kaplan, Edie Windsor’s lawyer, in the incredible gains we’ve had over the past few years; and
  • The role AMERICAblog, and specifically Joe Sudbay, played in the debate over the administration’s defense, and then rejection, of the Defense of Marriage Act (DOMA).

I won’t go through all of Mike’s arguments, you can read through them on your own. I would like to weigh in on two points, though.  First, the significance of Prop 8 in our overall marriage quality gains, and the role of AMERICAblog.

Prop 8

As I’ve written before, Proposition 8 in California was a unique evil, the import of which even our straight allies don’t always fully appreciate.  Prop 8 passed in November of 2008, and not only was a statement “against gay marriage,” it repealed the already-existing civil right of gay couples in California to marry.  It was unique in civil rights history, where you’d be hard pressed to find too many examples of civil rights bestowed and then repealed.

prop-8-plaintiffs-air-force-oneBut of course, Prop 8 was even worse than that.  Its advocates claimed that Prop 8 actually dissolved 18,000 legal marriages of gay couples already performed in California.  The new state constitutional amendment, supported by the religious right and Catholic church, and brought back from the dead by the Mormons and their $20 million investment, was vicious.

So, Prop 8 had an incredible impact on the gay psyche. Add to that the legal challenge by esteemed lawyers Boies and Olson, and Prop 8 was hugely important in the marriage equality battle.

Except then a funny thing happened on the way to the promised land: Edie Windsor showed up and crossed the finish line first.

US v Windsor

Here’s some background on Windsor’s case, handled by lawyer Roberta Kaplan, from Wikipedia:

edie-windsor

Edie Windsor

In 2007, Edith “Edie” Windsor and Thea Spyer, residents of New York, married in Toronto, Ontario, under the provisions set forth in the Canadian Civil Marriage Act, after 40 years of romantic partnership. Canada’s first openly gay judge, Justice Harvey Brownstone, officiated. Windsor had first suggested engagement in 1965. After Spyer’s death in 2009, Windsor was required to pay $363,053 in federal estate taxes on her inheritance of her wife’s estate. If federal law had recognized the validity of their marriage, Windsor would have qualified for an unlimited spousal deduction and paid no federal estate taxes. In May 2008, New York Governor David Paterson had ordered state agencies to recognize same-sex marriages performed in other jurisdictions. Some lower-level state courts had made similar rulings, but whether the state’s highest court would give such a ruling the force of law, as Windsor’s claim for a refund required, remained uncertain and was disputed throughout her lawsuit.

To make a very long story short, last summer the Supreme Court struck down Section 3 of DOMA, and sided with Windsor.  In the last less-than-year, the Windsor decision has successfully led to at least 14 victories of gay marriage advocates in as many states.

Something else happened last summer on the same day the historic Windsor decision was issued: The Supreme Court also dismissed the religious right’s challenge of a lower court decision finding Prop 8 unconstitutional.  That means, Prop 8 was struck down and gays in California could once again legally wed. It was a huge victory for Californians. And it had nowhere near the national import of US v. Windsor.

Yes, Prop 8 was  the “it girl” in 2008.  And then it wasn’t.  The true hero – well, the latest and greatest hero of the decades-long fight for marriage equality – was Edie Windsor and her lawyer Roberta Kaplan.

Now that’s not to say that lots of other heroes don’t share the crown.  Prop 8 was important in terms of focusing the gay community, and changing attitudes of the public at large.  And lots of commentators and activists from Andrew Sullivan to Evan Wolfson played a huge role, legally and culturally, in moving the marriage ball forward (in addition to the many state advocates that Mike mentions in his piece).  But the people who crossed the finish line first were Edie Windsor and her lawyer Roberta Kaplan.

DOMA

And now a quick word about DOMA.

Becker mentions in her book the importance of the Obama administration changing its mind and no longer defending DOMA in the courts.  She writes about how the President was incensed when he found out that the administration’s brief filed in support of DOMA on June 12, 2009 had caused an uproar in the gay community, and with the national media.

But Becker doesn’t mention the fact that the “activists” who caused the firestorm were Joe Sudbay and me, writing on AMERICAblog.  Joe had managed to get a copy of the administration’s brief before anyone else in the media, or activist world, had it. Both of us being lawyers, we went through the brief and ripped it to shreds, piece by piece, over the ensuing hours — publishing minute-by-minute updates on AMERICAblog.

People were livid about the brief, but others were mad at us as well.  Some bought into the administration’s argument that they had no choice but to defend DOMA in court.  After all, the Department of Justice said, DOMA is the law of the land, and how could a department of “justice” not defend the law?

But again, being lawyers, Joe and I knew this wasn’t entirely true.  With the help of then-law-student Paul Sousa’s research, we wrote a story detailing how Reagan, H.W. Bush, Clinton and W. Bush all refused to defend certain laws during their respective administrations. We also asked our friend and colleague Richard Socarides, who is also a lawyer, and who worked in the Clinton White House, if he’d consider penning a piece explaining the options the President had.  So Richard did.  And it ended up being the first, and seminal, piece on the topic.

Two years later, the White House and DOJ relented, and admitted that the President didn’t have to, and no longer would, defend DOMA in court.  It was a huge and welcome victory, and it was owed to the work of a lot of people, from activists to organizations, but Joe and I quite literally got the ball rolling.  And you wouldn’t know any of it from Becker’s “definitive” history of the last five years of the gay marriage battle.

Here’s Mike with more:

AMERICAblog broke the story of the Obama administration's brief defending DOMA on June 12, 2009.

AMERICAblog broke the story of the Obama administration’s brief defending DOMA on June 12, 2009.

In another example Becker claims that President Barack Obama and Attorney General Eric Holder, because of their beliefs about what was constitutional, both realized at the same time that they couldn’t defend the Defense of Marriage Act (DOMA) in court, a decision that was made in 2011. Yet she doesn’t detail the relentless pressure campaign that had been going on for over a year before that decision, coming from the streets and online, including from Joe Sudbay and John Aravosis at AMERICAblog. They began the campaign to stop Obama from defending DOMA after the Justice Department filed an offensive brief defending DOMA in June 2009, in the face of many Obama apologists, some connected to the administration, who attacked them and said that the administration had to defend DOMA. Every word and action of Becker’s insiders is reported in detail, but when it comes to others, they’re just anonymous “activists” or vague events or an unattributed headline here or there.

Evolving

One final point that Signorile explains in more detail, but Becker also overlooked a rather major turning point in the gay marriage battle: AMERICAblog’s then-deputy Joe Sudbay’s interview with President Obama, in which Joe got the President to say that he was “evolving” on the issue of gay marriage.

Here’s Mike:

Joe Sudbay and four other progressive bloggers interview President Obama at the White House on

Joe Sudbay and four other progressive bloggers interview President Obama at the White House

Becker doesn’t even tell the story of how Sudbay got the president to say, during an interview in October 2010, that he was “evolving” on marriage. (“[A]ttitudes evolve, including mine,” Obama said.) It was a pivotal moment, certainly reported on at great length in the media, that would be used against the president over and over by media pundits and activists demanding that he “evolve already!” Becker doesn’t cover it at all, only mentioning, while telling yet another story about the insiders that took place three months later, that Obama had “now said” that he was “evolving,” again making it seem like it was the insiders who had gotten him there.

Enough credit to go around

There’s more than enough credit to go around on the increasingly-successful battle over marriage equality in America.  And there are far more activists and lawyers and organizations than I can remember, who over the decades played key roles in getting us to where we are today.

But Becker’s book, which portrays itself as the “definitive account” of the past five years, doesn’t mention any of it.

It only goes to prove something I learned long ago. History isn’t written by the victors. History is written by those who step up to write it.  And unless you speak out, and challenge fiction, fantasy will eventually become accepted as fact.


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Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Google+ | LinkedIn. John Aravosis is the editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown (1989); and worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. Frequent TV pundit: O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Bio, .

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  • dcinsider

    Agreed.

  • Badgerite

    Yeah. I know. But still, who can resist the story about Biden at one point during an interview in his home, sort of going “F-ck it” and saying how he really felt and thought about the issue and finding that once he had, he couldn’t go back to the party line.
    Or of how the lawyer arguing against the couples in the Supreme Court came to have great regard for their argument and later found out his own daughter was gay and is now in the process of preparing for the marriage of his daughter and her partner.
    They probably shouldn’t have touted the book as definitive, but rather as the inside story of the lawsuits. That’s what it sounds like, more than ‘definitive’. More like ‘fly on the wall’ stuff. John’s point is well taken. Credit where credit it due. One of the things I admire about his blog and him is that he always stands up for himself.

  • dcinsider

    Her crime is of omission I believe.

  • dcinsider

    Two words; Mary Bonauto. Without Mary Bonauto there is no marriage equality. Period. End of discussion.

  • Badgerite

    The author was on NPR’s Fresh Air tonight. The book actually sounds good. Inside stories sounded pretty good, actually.

  • Mike_in_the_Tundra

    Baker v. Nelson was in 1971. Of course, I think of that because it was in Minnesota, but I believe it was the first time anybody went to court for the right to marry a person of the same sex. My husband met the gay couple on a few occasions. I believe their wedding cake is still put on display occasionally.

  • Badgerite

    Evolution is a good thing. Usually.

  • http://www.rebeccamorn.com/mind BeccaM

    2009 was definitely a watershed year for us — mainly because the LGBT community finally started to wake up and realize we were being played by our self-proclaimed Dem allies and by some of the ‘mainstream’ LGBT activist organizations such as HRC.

    You’re right to point out the 2009 loss in NY, which dovetailed with the Obama administration’s earlier betrayal with the DoJ DOMA-supporting brief.

    About the only good news we had that year was the California Supreme Court turning down the Prop 8 proponents’ attempt to nullify the 18,000 same-sex marriages performed the previous year.

  • http://www.rebeccamorn.com/mind BeccaM

    You’re right of course. Plus as at least one of our commenters has pointed out on several occasions, even if we had ENDA, it’s incredibly easy for any employer to fire any employee. I mean, so what if they can’t say, “I’m firing you for being gay” — they can just make up some other reason.

    A law on the books is almost not worth the effort if there’s no means or motivation for enforcement. Just look at the hate crimes law we fought so hard to pass. It might as well not exist, being a proscriptive rather than prescriptive measure. I stopped keeping track some months ago, but I think we’re up to exactly one prosecution for an anti-LGBT hate crime under the law in the five years it’s been in effect.

    Still, the fight needs to be fought.

  • One of the CA 36,000+

    Phyllis and Del MUST be remembered (we had a dedication to them read at our wedding). All of our “ancestors” in our fight for equality must be celebrated, loudly and joyfully. They paved the way for us and the ultimate goal we all desire: Full and equal access to our humanity and citizenship.

  • Ninja0980

    I also feel something else has been left out of the fight of the past few years as well.
    And that is the failure of marriage equality here in NY in 09, at a time when Democrats controlled all three branches of government no less.
    And in the state where the Stonewall riots helped launch the modern movement, that wasn’t going to go unnoticed.
    IMO, that played just as much of a role in what has gone on in the past few years as much as anything.
    Because that is when many in our community (myself included) finally said enough was enough to Democrats who had been dragging their feet on marriage equality.
    Simply marching in a parade or saying Republicans were worse wasn’t going to be good enough anymore.
    And the crap Obama pulled with defending DOMA and his “evolving” stance wasn’t going to fly anymore either.
    So when we mention Prop 8 pushing us foward, we should also mention NY.

  • http://www.rebeccamorn.com/mind BeccaM

    As Mike Signorile pointed out, simply putting a foreword or introductory “history of gay rights from 1950s onward” chapter would’ve helped a great deal. And to acknowledge the activists who dragged the reluctant politicians and judges to the table.

    (BTW, I use ‘gay’ as the generic term, too.)

    Anyway, yes, gay and lesbian couples were forming their partnerships for decades — at first in secrecy, and later on being somewhat public but enjoying no legal protections at all. My ex-brother-in-law lost his partner to HIV in the 1980s, for example, after being together for some years.

    I think the tipping point for me with respect to Becker’s book was how Hawaii in the 90s and Massachusetts in ’03 didn’t even enter into the narrative. And to act as if the ‘state-by-state’ wins after that were somehow triggered and sustained by inside-the-beltway DC politicians and activists.

  • The_Fixer

    Indeed. As you and Gustav point out, we (everyone under the LGBT tent, so to speak) have been wanting to couple, and have that coupling legally recognized, since… forever. I used the term “gay” as John has used it, as shorthand for everyone under the tent.

    Like a lot of us, I was “brainwashed” into thinking that marriage equality was not possible, in spite of a natural desire on the part of a lot of us to be coupled. People had to settle for being “partners”, a term that does not do justice to those people who had been in committed relationships for years. In my state, we still have to settle for using that term as the only recourse LGBT people have is to enter into a domestic partnership. Given that this state’s government is controlled by Republicans, it won’t happen as long as they are in power. It will take federal action to change this.

    There’s a huge amount of history to be told about the ongoing struggle for marriage equality, and I would be interested in reading a comprehensive account of the movement. I can’t speak to the motivation of Jo Becker as I can’t read minds, but the result of this effort is incomplete. Which is a shame.

  • http://www.rebeccamorn.com/mind BeccaM

    I used the WayBack Machine to re-read some of your coverage at the time. And damn — there was no way that brief would’ve gone unnoticed, would fail to cause exactly the explosion it did. (Plus your and Joe’s reporting was stellar.)

    You’d remarked how it was as if the brief had come from the Bush Administration’s DoJ, but to my reading it was even worse. They didn’t just defend DOMA. They defended every type and regime of legalized anti-gay discrimination, and as you pointed out, even undermined Roemer and Lawrence, as well as pre-emptively argued Loving v. Virginia shouldn’t be considered.

    That brief was an attempt to stop all pro-gay litigation for a generation. It wasn’t just some bland defense like, “Well, Congress passes laws and should be granted deference in its actions. DOMA is abhorrent, but whatchagonnado?” That brief was, “Yeah, gay people should be discriminated against, DOMA is totally reasonable, and here’s why.”

    Anyway… You and Joe were right. Moreover, Obama’s administration wasn’t even obligated to file a brief. I mean, if they really wanted to avoid offending anyone, they could’ve let that deadline pass and taken a truly neutral (and still somewhat cowardly) position. Said something mealy-mouthed like, “It’s up to the courts to decide.” Instead, they chose to defend and to do so with utmost vigor. I don’t remember exactly, but I think even I weighed in back then, saying something along the lines of, “It was bad enough Obama and his people chose to defend DOMA. The real offense was their enthusiasm in doing so.”

  • http://AMERICAblog.com/ John Aravosis

    ENDA simply did not have the horror stories, or the visuals, that DADT and marriage had. There were never-ending images, on each issue, of adorable patriots or adorable loving couples. On ENDA, the folks running that show are not highlightint too many victims. So the other issues won out.

  • http://www.rebeccamorn.com/mind BeccaM

    Yes, that is a -much- better book.

  • http://AMERICAblog.com/ John Aravosis

    The White House knew, if not Obama. What the President did not know was that the brief was going to cause an explosion. Now, did Joe warn our illustrious gay leaders for months that the brief deadline was coming up and that things were going to be bad if they defended DOMA? Yep. Did anyone listen to him, nope.

  • http://www.rebeccamorn.com/mind BeccaM

    Phyllis Lyon and Del Martin. Together since 1952. Married, finally, in 2008. Founding members of the Daughters of Bilitus in ’55 — the first nationwide lesbian group, which initially had to be a secret society due to the laws and social stigma at the time. In the 1970s, they were at the forefront of creating a common cause for gay and lesbian activism, rather than two separate movements, and were instrumental in the decriminalization of homosexuality in general.

    Anyway, yeah… to focus on just the last five years would be like picking up WW2 at the Ardennes Counteroffensive (popularly known as the ‘Battle of the Bulge’), as if that’s as much history as anybody needs to know.

  • http://AMERICAblog.com/ John Aravosis

    Agree

  • http://www.rebeccamorn.com/mind BeccaM

    Oh, it’s gotten waaaaay better in his second term, definitely. When I say someone needs to make amends for previous lapses and insults, I point to the proactive measures, such as having the DoJ preemptively announce the Feds will recognize same sex marriages performed in Utah and so on, even before the adjudication is complete.

    Still, there’s an impulse toward “our hands are tied” which Obama and his people haven’t completely shaken, whenever there’s some issue they apparently don’t feel like dealing with — such as the non-discrimination EO.

  • Badgerite

    I think that realization came with time.
    And I think Obama himself has tried to make up for that. In gestures as well as open support and appointments.

  • 4th Turning

    Am remembering how deeply angry I’ve felt in recent years finally coming upon histories of
    amazing individuals and cultures stupidly or deliberately omitted from the official record by
    white/christian/male/european “scholars”. And how enriched and fortunate I’ve felt by better
    late than never updating.
    Maybe a first ever that I’m aware of, a group has been allowed to tell is own story and record
    its own-factual-history in-real time.
    I can envision via the internet a world-wide collaboration on getting this one right-we owe it,
    I think, to this new generation starting out and to future generations looking back. It is what
    Wilde and Whitman and Baldwin and so many lesser unknowns yearned for and would
    expect if they were around to “contribute” a chapter.

  • TracyMN

    Thank you for this. I highly recommend Carlos A. Ball’s “From the Closet to the Courtroom” for a much better, if not “definitive,” account of gay civil rights in America.

    http://www.beacon.org/productdetails.cfm?PC=2129

  • Gustav2

    It is completely ignored how when I came out in 1974 I was always looking for that lifetime partner or marriage. I was also a bit miffed with early local AIDS activists who shunned long-term couples as unrealistic.

    I had many examples in Columbus OH of couples who have been together for decades and decades, had successful careers and businesses and were participants in the whole community. Most people in Columbus OH (and especially German Village) knew who the most public couple, Fred and Howard, were. History talks about Boston Marriages and adult adoptions, etc. that were, yes, marriages.

    http://www.gvguesthouse.com/blog/tag/german-village-columbus-fred-holdridge-fred-howard/

    It is human nature to pair bond. The book acts like the participants just thought it up recently.

  • The_Fixer

    The definitive account of the fight for marriage equality? I don’t think so. The fight goes back at least to the Stonewall era. It was first mentioned back then as part of the general struggle for gay rights. It was widely thought of as an unattainable goal, a pipedream, but the seed was planted a long time ago. The idea of gay people being married was certainly a dream for countless gay men and women going back many, many years.

    After years of gay people being convinced of our own inferiority, no one dared to approach the topic until the modern era of gay activism began. I am not talking about the polite marches on Washington, which were a precursor to modern gay activism. I am talking about Stonewall, the Gay Activists Alliance, the GLF and other organizations and people who were the faces of the more militant gay rights movement.

    If this book doesn’t mention that, it is at best incomplete, and at most a misrepresentation. The fight for marriage equality goes back a long while, and is intertwined with the struggle for gay rights in many ways.

    This author’s work is not of the caliber of the works of Johnathan Katz or Martin Duberman, who did write definitive gay history books.

  • chris10858

    I say God bless Joe Biden. He is more of a progressive leader than President Obama will ever be.

  • http://www.rebeccamorn.com/mind BeccaM

    You’re right: ENDA should’ve come first. And it’s been on the legislative calendar for decades now.

  • http://www.rebeccamorn.com/mind BeccaM

    Given his gift for gaffes, I don’t think Biden forced the issue. I think what happened is he went off-message, unintentionally, which forced the Administration to do what it’d been avoiding for Obama’s entire first term.

  • http://musephotos.wordpress.com/ GarySFBCN

    And does anyone believe that Joe Biden ‘forced the issue’ ? That entire “brouhaha” seemed staged to me.

  • http://musephotos.wordpress.com/ GarySFBCN

    And for some reason, there’s a legion of Sullivan supporters who credit Sullivan and nobody else for starting the discussion for marriage equality. I have to admit that I would have preferred that we work to pass ENDA before DOMA and DADT, even though same-sex marriage is something that has a tremendous impact on my life.

  • http://www.rebeccamorn.com/mind BeccaM

    That angle wouldn’t surprise me. Keeping the GayTM open was paramount.

    But I remember at the time how you and Joe were reporting there was no way a solicitor files a brief with the Supreme Court without the highest level of authorizations in the DoJ. Did Obama know specifically what was in those briefs from 2009? We may never know. Personally, I lean towards him not knowing the specifics, but being fully aware the Administration’s official position was to uphold DOMA with the most vigorous of defense lest he be painted as too pro-gay that early in his presidency. (In other words, the place under the bus was already being prepared for us, in the triangulating rightward-ratcheting belief that being seen as moderate-to-conservative on gay issues would win more votes in the middle than it would lose on the left.)

    I think it surpasses belief that Eric Holder didn’t know or at least have some idea what legal rationales were going to be presented to justify upholding DOMA.

    And they never did apologize. So I think you’re right: They were angry about the political blunder. Not so much about the utter wrongness and injustice of what they’d just done.

  • http://AMERICAblog.com/ John Aravosis

    That’s intg. I’d be curious what they were dissing.

  • http://AMERICAblog.com/ John Aravosis

    Hey, even Signorile agreed with Andrew – but, he also felt Andrew had done some revisionism in terms of mentioning so many conservative writers and nobody else.

  • http://AMERICAblog.com/ John Aravosis

    He was incensed that the issue exploded. That I know for a fact. The nuance of being upset about the arguments in the briefs…. that’s another story. From what I heard, I think he was ticked that only six months in DOJ did something that set the gay community on fire.

  • StraightGrandmother

    Well I bought the book a few says ago. It was a pre-order on Amazon Kindle edition was $12
    So as soon as it is released (when is it released and it should be shortly) as soon as it is released it will show up in my Kindle.

  • StraightGrandmother

    If for no other reason than Prop 8 git more press and was more in the public eye. So I would agree with you that Prop 8 did more to change our country culturally than the Windsor case, however as John point out, Windsor made it over the finish line First and has more Legal weight than Prop 8.

  • StraightGrandmother

    The ACLU is sure rocking. They sure helped out in Michigan. It was ACLU attorney Leslie Cooper who handled Regnerus’ Deposition and Block, a Guy I can’t remember is first name he handled the Joe Price Deposition, and `u rhink either “doug Allen or Loren Marks. You know who else was helping the local lawyers in Michigan was Mary Bonauto from GLAD, + they sent one more lawyer from GLAD. You know who Mary Bonauto is, right?

    I am SO PROUD of the ACLU, they are on ALL these cases practically.

  • http://www.rebeccamorn.com/mind BeccaM

    Or a nice snifter of Lagavulin. That’ll take the pain away. ;-)

  • http://musephotos.wordpress.com/ GarySFBCN

    I agree that any book that claims to be the ‘definitive account’ should be held to a high standard. It is not clear that the Jo Becker makes this claim – it seems that it is from Publisher’s Weekly.

    But nobody remember Mendez v City of Westminster; no they remember Brown v BOE. nobody remembers the several cases and efforts that happened before Loving v Virginia. It is quite normal to talk about Brown without acknowledging the decades of efforts to bring that case to SCOTUS.

    So if Jo’s book is about the last 5 years in order to document those 5 years, great. If not, then shame on her.

    Anyway I enjoy your post and I recommend that after finding oneself agreeing with Andrew Sullivan, a good long shower is needed.

  • http://www.rebeccamorn.com/mind BeccaM

    Five years is the beginning of the Obama administration — and apparently the beginning of Ms. Becker’s access to those who would have her blow their trumpets for them. So to speak.

    Meow.

  • http://www.rebeccamorn.com/mind BeccaM

    Very good point, that. I remember many of us complaining bitterly about the uselessness and feckless timidity of HRC on this issue. They were constantly saying “it’s too soon!” and “don’t antagonize the opposition!” and most of all, “do not EVER hold the Dems to their pro-gay campaign promises.”

  • http://www.rebeccamorn.com/mind BeccaM

    Absent Windsor and with Prop 8 overturn alone, we’d have marriage equality in just one state more than before — California. And with no definitive ruling as to whether or not marriage is itself a fundamental right.

    Well, we didn’t exactly get the definitive ruling on DOMA, but it was close enough in Windsor to have toppled a whole series of legal dominoes, which are still falling.

  • http://www.rebeccamorn.com/mind BeccaM

    A tour de force of groundbreaking reportage by Pulitzer Prize–winning journalist Jo Becker, Forcing the Spring is the definitive account of five remarkable years in American civil rights history…

    There’s so much wrong packed into that one opening clause, in Amazon’s description, it’s hard to know where to begin, although I suppose I’ll start with the breathless over-the-top hyperbole and end with a derisive snort at the use of the word ‘definitive.’

    By most reputable accounts, there is not much evidence Obama could have been ‘incensed’ by the June 2009 DoJ briefs — because those same arguments and positions continued to be used for the next two years. Embarrassed, perhaps, but angry? Funny, but I must’ve missed the apology and the admission that the brief had been a terrible mistake and should never have been filed. I also must’ve missed the mea culpa, the taking of responsibility.

    LGBT activist groups were begging Obama to tell Holder and the DoJ to stop with the official homophobia, and they kept saying their hands were tied, that they had no choice but to defend the laws using the same bigoted arguments they had been all along. They kept insisting that DOMA, while unfortunate and discriminatory, was legal and ‘reasonable.’

    This did not substantially change until February 2011. I can’t link because it doesn’t quite work, but here’s what you wrote back in June 2009:

    It reads as if it were written by one of George Bush’s top political appointees. I cannot state strongly enough how damaging this brief is to us. Obama didn’t just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn’t motivated by any anti-gay animus. He argued why our Supreme Court victories in Roemer and Lawrence shouldn’t be interpreted to give us rights in any other area (which hurts us in countless other cases and battles). He argued that DOMA doesn’t discriminate against us because it also discriminates about straight unmarried couples (ignoring the fact that they can get married and we can’t).

    And more:

    He actually argued that the courts shouldn’t consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level.

    And before Obama claims he didn’t have a choice, he had a choice. Bush, Reagan and Clinton all filed briefs in court opposing current federal law as being unconstitutional (we’ll be posting more about that later). Obama could have done the same. But instead he chose to defend DOMA, denigrate our civil rights, go back on his promises, and contradict his own statements that DOMA was “abhorrent.” Folks, Obama’s lawyers are even trying to diminish the impact of Roemer and Lawrence, our only two big Supreme Court victories. Obama is quite literally destroying our civil rights gains with this brief. He’s taking us down for his own benefit.

    It was the uproar over this that caused much coverage of the White House and DoJ planning to ‘soften’ their tone in late 2009, while nevertheless saying (lying) they were compelled to keep defending DOMA, that the only way to get rid of it was for Congress to repeal the law. This continued right up through the autumn of 2010, when the official Administration position in court filings was that while odious and discriminatory, DOMA was entirely constitutional.

    That’s the other thing going on in the autumn of 2010, when Joe asked that question. Obama’s DoJ was — yet again — defending DOMA to the utmost of its ability. In this case, appealing a ruling in Massachusetts where DOMA was blamed for forcing MA to discriminate against legally married gay and lesbian couples. At that point, the DoJ was still saying DOMA was perfectly constitutional and that they supported it because the Feds apparently couldn’t manage the paperwork of having marriage equality in some states but not others. So best not to recognize any gay marriages, I guess. Upon losing the case, they continued to appeal.

    http://www.cnn.com/2010/US/10/12/us.same.sex.marriage/

    Only in 2011 did the Administration start taking an adversarial position regarding DOMA in the Golinski and Windsor cases. Yet as recently as January 2012, the White House wouldn’t even issue an update or clarification on Obama’s ‘evolution’ on marriage equality, when asked to respond to Rick Santorum’s campaign claim to have the same position as Obama.

    And let’s not forget how it wasn’t until the very end before Obama ordered the INS to suspend deportations of legally married foreign-born spouses of American citizens. Not to ban or to find a way to rewrite regulations so that a same-sex married couple could qualify as ‘family’ even if the marriage itself wasn’t recognized. Just to suspend them pending the SCOTUS decision — which could have gone the other way with just one Justice’s vote.

    You’re right: Prop 8, while hideously egregious, never had its day before the Supreme Court, not really, and while Judge Vaughn Walker’s ruling was a thing of beauty to read, it remains un-cited in all the current cases before the courts. True, the overturn of Prop 8 stands, but it came via the 10th Circuit and depended on (1) California’s governor and AG deciding to stop defending the proposition and (2) the 10th Circuit decision that 3rd parties had no standing to intervene in further appeals.

    SCOTUS punted on Prop 8. Yes, Prop 8 got all the news — and deservedly so — but in the end, the leaders at the top — the Supreme Court and even Obama’s DoJ — declined to get involved. It should have been the case that led the way, but sadly it wasn’t. Hell, the Supes wouldn’t even say one way or the other whether Californians had been wronged or that Prop 8 was unconstitutional on its face. Literally, their reaction was, “Why are we being asked to hear this case?” As if the answer wasn’t obvious.

    Probably, and this is my guess, because they couldn’t have reached a ‘split the baby’ decision the way they tried to go with the DOMA overturn. To say the Feds couldn’t discriminate, but the states were free to do so, albeit on unsustainably shaky legal grounds from then onward.

    As near as I can tell, Ms. Becker’s much vaunted access to the halls of power and ‘political war rooms’ was access to people who were reacting — often with great reluctance — to events around them, not as leaders or as drivers of the change. But giving them all the credit for other people’s activism, protesting, and hard work.

    By time men like President Obama came around to supporting the overturn of DOMA, the case in support of it and for bans on same sex marriage was already falling apart in court after court and in public opinion. The old cynical definition of a leader is someone who sees what direction the crowd is already going and jumps out in front of them to take credit for leading them there.

    It’s not much different here. By time Obama and the Dems came around and stopped with the political homophobia, the American public had already shifted. The Democratic party base was also no longer satisfied with ‘our hands are tied’ excuses. (A very similar story played out with DADT’s repeal, which happened despite the deliberate acts of political sabotage on the part of the Obama administration. The leaders take the credit, but it was activism by OutServe and ActUp and other LGBT groups who shamed the lame-duck Dem-majority Congress into passing the repeal.)

    My main objection is… well, I don’t usually agree with Andrew Sullivan, but here I do: Ms. Becker’s account appears to start with the beginning of the Obama presidency, as if there were no significant LGBT civil rights leaders or battles won before five years ago. And her ‘heroes’ of the LGBT movement are, curiously enough, limited to those she put in her book — and to which she had personal access. Many of whom started out as enemies to the cause, either through malice or cowardice or both. Men like Obama, who had to evolve away from a position that gays and lesbians did not deserve equal rights. Or Ken Mehlman who had to come out of the closet himself before distancing himself from — but never apologizing for — the GOP’s anti-gay positions he supported enthusiastically in the previous administration.

    No Dan Savage. No Harvey Milk. No Dan Foley, who argued for marriage equality in Hawaii. No Evan Wolfson, the founder of Freedom to Marry. No Mary Bonauto, who won the first victory for marriage equality in Massachusetts. No Gavin Newsom, issuing licenses in San Francisco (2004) in an act of civil disobedience, and no Victoria Dunlap, the courageous Republican county clerk of Sandoval County who decided at the same time there was no rational reason to deny marriage rights to gay couples — and who unlike Newsom, actually managed to result in several dozen totally legal same-sex marriages in NM before she was stopped and her political career destroyed.

    The fight for gay rights is a struggle that’s been going on for nearly half a century at this point. Beginning in the 70s and 80s, committed gay and lesbian couples were coming out of the closet. Some of us were already marrying before it was legal to do so, in forward-thinking progressive churches and in private ceremonies.

    Sadly, Ms. Becker seems to think the fight started on January 20th, 2009, and was won by the reluctant leaders and VIPs who had to be dragged bodily to the front lines. The ones who, just five years ago, felt it was entirely reasonable and constitutional to discriminate against gay people, and merely unfortunate. Those who want to take credit for other people’s hard work…and who found someone willing to give the credit and accolades in exchange for access.

    I know this is crude, but I’m going to say it anyway: I hope Ms. Becker had professional-grade knee-pads.

  • http://musephotos.wordpress.com/ GarySFBCN

    I’ve see a lot of the dissing, but on other blogs. I’ll try to paste some of the comments here.

    I agree about the legal assessments that have Windsor being WAY more important. But I think that the prop 8 case was “culturally” more important than Windsor.

  • Mark_in_MN

    No doubt these things influence one another. It’s not a one way street. But it seems to me an odd idea to separate Hollywood and TV from culture, rather than to see it as a part of it, a reflection of it, regardless of whether a particular cultural expression leads or trails. The arts have always both lead and trailed as they reflect.

  • http://AMERICAblog.com/ John Aravosis

    LOL yeah that’s a good pt, though if you were arguing that Prop 8 was seminal then you go back 5 years to Prop 8. Circular, but that’s the logic I suspect.

  • http://AMERICAblog.com/ John Aravosis

    I thought the Prop 8 battle was hugely important at the time, but then Windsor passed them, and surpassed them. I’d not seen anyone dissing Prop 8 in the past few months – and in fact, we were all livid about Mozilla’s Brendan Eich donating to Prop 8 not a month ago. I honestly only saw revisionism starting with this book, claiming to be the definitive history and then claiming Prop 8 did everything when, in the end, it relaly didn’t after all. It was, surprisingly, Windsor.

  • http://musephotos.wordpress.com/ GarySFBCN

    I think we have a chicken/egg standoff.

    I believe that Phil Donahue did more to introduce and demystify gays and lesbians to the American public in the late 1960 and 1970s than did most organizations. By 1977, Billy Crystal was playing an out gay man on a very popular show. And from there it took off with the first gay kiss on TV happening in 1991.

  • Mark_in_MN

    Queer Eye for the Straight Guy and it being “cool” to have gay friends, etc. was the result of changes in cultural opinion, a reflection of it, not what caused the change in cultural outlook. Without that movement, Queer Eye, and other shows, could never have had much of an audience. Something had to move us to the point that the country just didn’t reject such programs, as would have happened in an earlier era.

    LGBT groups have often sucked at messaging. We tend to be gun shy and pull our punches. Our opponents are not afraid to push in outrageous ways, to lie, and push buttons. It’s an easier, although despicable, way of doing it. But I don’t know that major marketing campaigns (à la a political campaign) is really what does it. Instead it’s more personal interaction and relationships. It’s the real hard work, the work that doesn’t get seen, but the work that the LGBT community really does.

  • Mark_in_MN

    The other big impact of bring the suit against Prop. 8 was the breaking of the logjam. It needs to be remembered (although it seems some would like it to be forgotten) that most of the major LGBT-rights groups opposed the suit, saying it wasn’t time and was sure to backfire (or at least far too risky).

  • Mark_in_MN

    I don’t think that the lawsuit over Prop. 8 was merely incidental. I think the proposition itself, or rather its passage, had a greater impact, and impact that made the suit a practical possibility. But the impact of the suit was also great. It really did create a major conversation about rights, legal matters, etc. It was a significant factor propelling a different conversation that the passage of Prop. 8 didn’t do all by itself. It helped make the federal constitutional case something to pay attention to, to be taken seriously, rather than just an odd legal theory. That was a not-unimportant influence.

    But that doesn’t diminish the work of so many others over years and years, nor lesson the greater legal importance of results of the Windsor case.

  • http://musephotos.wordpress.com/ GarySFBCN

    I agree. What I’ve been seeing for the last few months is some really bitter comments about prop 8 and I don’t understand why.

  • http://musephotos.wordpress.com/ GarySFBCN

    I disagree. Regarding cultural shift in opinion, I think it is Hollywood, having more and more gay characters on TV, etc, that did more than any of the work we did. Frankly, while we do excellent work ‘behind the scenes’, we suck at ‘messaging’, and that is why we lost the prop 8 election.

    But it all contributes. By the time that the very popular “Queer Eye for the Straight Guy” began, it became ‘cool’ for people to have gay friends, go to gay bars, etc.

  • Mark_in_MN

    The problem here, it seems to me, is that there seems to be a few who want to make it some sort of competition with an either/or outcome. Neither is appropriate. It’s not the Perry/Prop. 8 lawsuit or other efforts. It’s all of the above. And it isn’t a competition.

  • Mark_in_MN

    But how did those demographics get the way there are/where then? It didn’t just happen. It wasn’t the result of some natural growth or decay process that would have happened without any cultural forces being applied at all. No, the demographics got that way because of work done over years by all sorts of people, arguments made, friends and family who came out and stood up, etc. But movement of the total support for gay rights and marriage equality isn’t only because of the march of generations, there has also been movement within those generations.

  • jamesnimmo

    The ACLU often gets short-shrift in these news stories as if the media doesn’t want the readers to know about it.

  • http://musephotos.wordpress.com/ GarySFBCN

    Also, if you google prop 8 and then google Edith Windsor, prop 8 has 217 million MORE result pages, which probably indicates something. The prop 8 case was regularly featured on CNN and MSNBC. Windsor, not so much. I’m not saying that makes prop 8 more important, because, of course, the DOMA ruling was more important. I’m just reinforcing the ‘national conversation’ issue that I was discussing above. And again, that doesn’t justify omissions in a book especially if it pretends to be ‘the complete history’ of same-sex marriage efforts in the last 5 years.

  • http://musephotos.wordpress.com/ GarySFBCN

    “And the reason it was almost defeated was because of all the work that had happened since DOMA.”

    I don’t agree with that statement AT ALL. It was almost defeated because of demographics – every poll over the years regarding LGBT rights showed support was ‘generational’, greater among ‘baby boomers’, X’ers and Millennials, and not among those in the ‘Great Generation’ or the ‘Silent Generation.’ And by the time of the election (2008), so many of the Great and Silent generations had died that support started to shift.

    Regardless, having the very visible and active support of Hollywood, AFER, a gazillion actors, politicians, etc, had a very real, positive effect across the country.

  • MyrddinWilt

    But it was Prop-8 that mobilized the nation, the lawsuit against Prop-8 was incidental. And HRC was only one player on the team.

    What was shocking about Prop-8 was that we almost won the initial referendum. After years of losing pretty much everything by a large margin, sometimes three to one, we were within a few points.

    Prop-8 wasn’t just a piece of gratuitous nastiness from the Mormon and Catholic churches, it almost lost. And the reason it was almost defeated was because of all the work that had happened since DOMA.

  • http://musephotos.wordpress.com/ GarySFBCN

    The prop 8 case ruling was limited to California, but the case, which started 18 months before Windsor, ignited the national conversation. Both cases had a role in where we are today and both cases should be celebrated.

  • http://musephotos.wordpress.com/ GarySFBCN

    I need to read this book. But I really tire of all the bashing of the prop 8 efforts. Yes, Edie Windsor’s DOMA ruling is more important, but her lawsuit didn’t start until 18 months after the prop 8 lawsuit. Her partner was still alive when Prop 8 passed.

    Prop 8 mobilized the nation – for and against – and the suit was a big part of forcing the ‘national conversation’ about same-sex marriage. There were many efforts nationwide to keep the suit alive, to garner new support and to convince people that same-sex marriage should be legal. And in that regard, it may have actually paved the way for the Windsor ruling. The prop 8 suit efforts certainly helped with popular support for Edie. Both efforts showed the unfairness of denying this right: In sickness and in health.

    But seriously, all efforts are important, and if the book made serious omissions, shame on the author.

    But I will have to see for myself.

  • Elijah Shalis

    They ignored the ACLU’s role in the Windsor Case and others. The ACLU took on the issue when the HRC said the timing was wrong. I am a member of both organizations but as a former President of a college ACLU Chapter I take real pride in the ACLU’s role.

  • http://parkandbark.wordpress.com/ Houndentenor

    Access journalism is how the NY Times published completely fabricated WMD evidence (written by Judy Miller) on the eve of Cheney’s appearance on the Sunday morning talk shows. It’s not journalism. It’s whoring yourself out and being used by politicians for their own purposes. For a fictionalized version of how this works see season 1 of the Netflix series House of Cards. (I can’t help but think that aside from the reporters untimely end, that’s pretty much how it works. Sex optional of course.)

  • Ryan

    That was my first reaction to the book. I got the impression that it started the history of gay marriage in the United States after some states already had gay marriage.

  • Mike_in_the_Tundra

    I must be missing something. Why focus on just the last five years?

  • FLL

    I started reading this blog in June, 2009 specifically because I was intrigued by the analysis of the pro-DOMA brief by the Bush appointee in the Justice Department—I think his name is W Scott Simpson. Unfortunately, most Americans might not notice the omission in Jo Becker’s book. However, the one thing that any average American reader would notice is if Jo Becker didn’t mention the home run of 2012. Equality won in all four states where marriage was on the ballot: Maine, Maryland, Minnesota and Washington. Do you mean to tell me, John, that this person didn’t even mention that? That is a glaring omission that the American public will definitely notice, and if they notice that, many people will dig deeper and discover the role that you and Joe Sudbay played in the 2009 DOMA brief debacle.

  • Indigo

    History is written by people who get an agent first. Facts are a secondary consideration. That’s contemporary publishing, is all that is. Dishonest? Well, yes. Welcome to Amerika. Did you think it was just, fair, and decent?

  • MyrddinWilt

    Its ‘access journalism’. The reporter is given access to a few insiders which gives them an incentive to talk up the role of their insiders.

    Not defending a law in the federal courts is a really big decision for the administration. Its a decision that they don’t and shouldn’t take lightly and has to come from the top. And no decisions get taken at that level without a lot of pressure. They just don’t make it to the agenda.

    DOMA was the driver of the whole campaign. It was just so pointless and spiteful. Before DOMA, marriage equality was a very low priority. But when the bigots made it an issue, marriage equality became a cause.

    There really is no evidence to suggest that Boies and Olson helped win the DOMA case. The Prop-8 case was dismissed by the lower courts on standing and that was the only issue they could argue on in their briefs. The Prop-8 case was only limited in scope to California in any case.

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