Frank Kameny was a life-long activist for gay rights.

Next week, the Supreme Court will hear the oral arguments on two legal challenges to laws that limit the government’s recognition of same-sex marriage. While there are various legal nuances to how both the Defense of Marriage Act and Proposition 8 cases might be decided, the Justices will actually be weighing a more fundamental question: Do gay people exist?

At the core of conservatives’ argument against marriage equality in both cases is the idea that gay people actually do not exist — only “homosexual behavior” does. In House Republicans’ final reply brief filed this week against DOMA, attorney Paul Clement argued that “sexual orientation is defined by a tendency to engage in a particular kind of conduct.” Proponents of Prop 8 similarly suggested that “sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition.” The U.S. Conference of Catholic Bishops added in its amicus brief that homosexuality is a “voluntary action” just like polygamy. In other words, people are only really gay when they’re having gay sex — otherwise they’re not.

Herein lies greatest challenge for gay and lesbian civil rights: the fact that sexual orientation is an invisible identity. Unlike race or gender, it cannot so easily be superficially assessed. Thus, conservatives are counting on doubt and distrust, urging the Court to dismiss whatever gay people actually say about their lived experiences — discount every individual’s coming out story, ignore decades of gay culture and gay history, and disregard the scientific conclusions of the entire major medical community. In fact, opponents of equality regularly claim that “the gay agenda” is merely a conspiratorial quest to validate sinful behavior — as opposed to an effort to allow millions of people to participate fairly in society.

The Court will have the opportunity to weigh the question of whether gay men and lesbians exist in both a legal and practical sense. The practical case for recognizing gays is simple, yet compelling: gay people exist and more importantly, are already raising children in families. All of the conservatives’ arguments rely on claims about “responsible procreation” and what’s best for children, but not one of them takes into account the millions of children already growing up with same-sex parents. Besides the fact social science research supports same-sex parenting, it’s quite easy to see how those families would benefit from the securities and protections of marriage equality. The Court could simply accept opponents’ arguments about the values and purposes of marriage, but rather than apply them in conservatives’ imaginary gay-free universe, acknowledge that they should apply equally and fairly to gay couples as well.

The magic words to look for if the Supreme Court legally recognizes gay people is “heightened scrutiny,” which is how the Court determines that the government cannot target a specific group for unfair treatment without substantial justification. For example, classifications based on sex are subject to “intermediate scrutiny,” and classifications based on race are subject to the highest level, “strict scrutiny.” When the Second Circuit Court of Appeals ruled in favor of Edie Windsor’s case against DOMA, it determined that intermediate scrutiny should apply. The Supreme Court, however, has not applied any level of heightened scrutiny for sexual orientation in past cases, even when ruling in favor of gay rights, such as Lawrence v. Texas (overturning sodomy laws) and Romer v. Evans (overturning a Colorado amendment banning LGBT nondiscrimiantion protections).

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House Republicans' Attorney Paul Clement

House Republicans have filed a reply brief defending the Defense of Marriage Act before the Supreme Court, but the arguments boil down to “nuh-uh” or “just because” responses to Edie Windsor’s attorneys. Though it reiterates many of the arguments made in their initial brief, here’s a summary of the final written arguments against marriage equality in the DOMA case:

• Same-sex marriage is still an “experiment,” so Congress was allowed to be cautious: “But when Hawaii was poised to become the first jurisdiction in the United States to deviate from the traditional definition, there was nothing incautious about retaining the traditional definition as the federal definition while states began a process of experimentation. That approach was a rational exercise in caution and a rational approach to the issue given our system of dual sovereignty.”
• It’s more “uniform” to ban all same-sex marriages than to recognize all valid marriages: “But the federal sovereign has a unique interest in treating a survivor of a same-sex relationship in New York the same as a survivor of a same-sex relationship in Oklahoma. And DOMA rationally furthers that uniquely federal interest in nationwide uniformity.”
• Most states ban same-sex marriage, so it’s rational that Congress did it too: “It bears emphasis that the traditional definition was the only definition at the time of DOMA’s enactment and remains the rule in more than 80% of the jurisdictions.”
• Children are better off with their biological parents: “DOMA’s opponents challenge as irrational the long-held cultural judgment that a child’s biological parents are, other things being equal, the child’s natural and most suitable guardians.”
• Only straight couples need marriage because only they have kids accidentally: “Marriage as an institution is linked to the unique tendency of opposite-sex couples to produce unintended offspring and the societal interest in providing a stable structure for raising such children.”
• DOMA doesn’t deny marital eligibility to same-sex couples: “DOMA defines terms for purposes of federal law; it does not deny marital eligibility— which remains a matter of state law—to anyone.”
• Gays aren’t politically powerless like women because women were discriminated against under the law: “The Court’s application of heightened scrutiny, despite the majority status and substantial achievements of women, was explained instead by over a century of official disenfranchisement that left the statute books littered with laws based on outdated stereotypes.”
• Sexual orientation is a behavior, not an identity: “Unlike the recognized suspect classes, sexual orientation is defined by a tendency to engage in a particular kind of conduct.”
• Let democracy play out on same-sex marriage so opponents aren’t called bigots: “The democratic process requires opposing sides to attempt to persuade each other, to understand each other’s positions, and perhaps, at least temporarily, to reach compromises that both sides can accept. A constitutional right to same-sex marriage, on the other hand, could be achieved only by marginalizing, as bigoted at worst or irrational at best, the ‘profound and deep convictions’ of those who disagree.”

Some of these arguments are simply rhetorical speculation (“experiment,” “uniform”), others are completely untrue (DOMA rejects states that recognize same-sex marriages, gays do have a history of disenfranchisement under the law), and others defy the lived experiences of gays and lesbians and their families (children who are adopted, sexual orientation as an identity). None of them reflect reality, and none of them should survive the scrutiny of the Court’s questions next week.

(HT: Kathleen Perrin.)

Washington Post columnist George Will.

The Washington Post published an opinion piece Friday by conservative pundit George Will called “The shaky science behind same-sex marriage.” Though Will has admitted there is an “emerging consensus” for same-sex marriage and predicted that the issue will prevail in the Courts, he highlights a brief from Maggie Gallagher’s Institute for Marriage and Public Policy that argues against equality by suggesting that the social science research currently available is not a sufficient rationale for that victory:

A brief submitted to the U.S. Supreme Court concerning the California case by conservative professors Leon Kass and Harvey Mansfield and the Institute for Marriage and Public Policy warns that “the social and behavioral sciences have a long history of being shaped and driven by politics and ideology.” And research about, for example, the stability of same-sex marriages or child-rearing by same-sex couples is “radically inconclusive” because these are recent phenomena and they provide a small sample from which to conclude that these innovations will be benign.

Unlike the physical sciences, the social sciences can rarely settle questions using “controlled and replicable experiments.” Today “there neither are nor could possibly be any scientifically valid studies from which to predict the effects of a family structure that is so new and so rare.” Hence there can be no “scientific basis for constitutionalizing same-sex marriage.”

The brief does not argue against same-sex marriage as social policy, other than by counseling caution about altering foundational social institutions when guidance from social science is as yet impossible. The brief is a preemptive refutation of inappropriate invocations of spurious social science by supporters of same-sex marriage.

Will endorses two arguments here, both of which are unsupportable. The first is that any social science that supports a liberal position shouldn’t be trusted because social science already has a liberal bias. The second is that it’s reasonable to conclude that it’s impossible to measure anything that hasn’t been legalized, even if legalizing it is the only way to test it. Together, these form a tautological argument that social science is only valid and useful if it supports keeping things the way they already are, which is not only a very narrow dismissal of the work social scientists already do, but also a philosophy that inherently prevents change.

Will then proceeds to demonstrate just how susceptible he is to conservatives’ fraudulent interpretations of what science is available:
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This week, the National Organization for Marriage’s John Eastman explained that adoption is the “second best” option for children when heterosexual couples can’t biologically have children of their own, including Supreme Court Chief Justice John Roberts, who adopted two children with his wife. The comment echoes an argument made in the Defense of Marriage Case that biological parents have a unique stake in the success of their children, and thus same-sex children do not deserve marriage. At CPAC Thursday, the Washington Blade asked Brian Brown if he agrees with Eastman’s statement, and Brown did his best to deflect without dissenting:

BROWN: Well, the reality is that on any indicator we’ve been able to measure since the explosion and the break down of the family from the 60s to the present is that children do best with both their mother and father. Obviously, we need to encourage adoption, we need do everything we can to help single motherhood. [...]

It’s entirely different when you put into the law the notion that either mothers or fathers are completely expendable. And that, at it’s nature, is what same-sex marriage is all about: two moms or two dads are essentially the same as a mother and a father. That is not the case. Children have rights, too. Children have a right to have a chance to have both a mother and a father.

Though Brown omitted the word “biological” from his answer, the word “their” is key for distinguishing biological children from children adopted by (other) parents. It’s not difficult to assert this is Brown’s position because he’s made the point before — notably in his dinner-table debate with Dan Savage:

BROWN: The notion—the simplistic notion that because parenthood is connected with marriage—because marriage is that institution by which society connects children to their biological mothers and fathers—the simplistic idea that somehow that means what we’re saying is that every single person has to have a child—that’s silly. We never claim that. Marriage is the institution that does this… Marriage is the institution that connects that child to both their mother and father, and that’s why the state is interested in marriage. Because marriage is the institution that allows children to know both their mother and father.

Of course, NOM’s Jennifer Roback Morse also repeatedly makes this anti-adoption claim. Whether she’s endorsing child kidnapping from same-sex couples or calling for the imprisonment of lesbians who buy sperm on craigslist, her argument remains that somehow the biological connection between parent and child takes precedence. Of course, there is no evidence to support this notion.

This line of reasoning seems to stem from a post-hoc attempt to rationalize inequality in ways that don’t sound blatantly discriminatory. Rather than admitting that DOMA and Proposition 8 were intended to target gays and lesbians, conservatives invented the idea that marriage should be reserved for straight couples because it “promotes procreation.” When confronted with the counterargument that straight couples who cannot conceive are still allowed to get married, they had to invent yet another new argument: that the biological connection with children is still preferential. They knew that nobody would interpret that to mean that all adoption should be banned, even though that’s the implication. In fact, the argument only works with the assumption that same-sex parenting is still worse than opposite-sex parenting, even though to make that case they’ve now offended every adoptive parent, every foster parent, and every parent who has ever used a surrogate, a sperm donor, or other fertility treatment to have a child.

Hopefully both Chief Justice Roberts and Justice Clarence Thomas, who also adopted, appreciate that same-sex parents are just as capable of loving a child without a direct biological link as they’ve been able to love their own.

Sen. Rob Portman (R-OH) has reversed his position on gay marriage, becoming the only sitting Republican senator to support marriage equality. The senator was a top contender to become Mitt Romney’s vice presidential candidate last year. As he explained to several Ohio newspapers, Portman was inspired by his son Will, who came out in February of 2011.

In a Columbus Dispatch op-ed, Portman explains how he struggled with his faith and his desire for his son to have the same opportunities his other children have:

I have come to believe that if two people are prepared to make a lifetime commitment to love and care for each other in good times and in bad, the government shouldn’t deny them the opportunity to get married.

That isn’t how I’ve always felt. As a congressman, and more recently as a senator, I opposed marriage for same-sex couples. Then something happened that led me to think through my position in a much deeper way.

Two years ago, my son Will, then a college freshman, told my wife, Jane, and me that he is gay. He said he’d known for some time, and that his sexual orientation wasn’t something he chose; it was simply a part of who he is. Jane and I were proud of him for his honesty and courage. We were surprised to learn he is gay but knew he was still the same person he’d always been. The only difference was that now we had a more complete picture of the son we love.

At the time, my position on marriage for same-sex couples was rooted in my faith tradition that marriage is a sacred bond between a man and a woman. Knowing that my son is gay prompted me to consider the issue from another perspective: that of a dad who wants all three of his kids to lead happy, meaningful lives with the people they love, a blessing Jane and I have shared for 26 years.

Portman elaborated on his evolution to CNN’s Dana Bash:

Portman’s previous stance on marriage equality was termed “openly hostile” by Michigan Law students who protested his commencement speech just two months after his son privately came out. One hundred students reportedly walked out of the speech. In June 2012, he still opposed the Employee Non-Discrimination Act, explaining to ThinkProgress that businesses should be able to fire gay people without fear of legal action.

During the vetting process for GOP vice presidential candidate, Portman says he told Romney “everything” about his son and claims that the campaign assured him that his son’s orientation was not the reason why he was not selected.
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Goldman Sachs joined nearly 300 other companies in filing an amicus brief challenging the Defense of Marriage Act (DOMA) at the Supreme Court. According to CEO Lloyd Blankfein, supporting that brief was a matter of both civil rights and good business:

BLANKFEIN: At the end of the day, this aligns with my personal views, but I’m not using this as a platform to espouse my personal views. The only reason why most people are interested in what I have to say is because of what I represent at Goldman Sachs, and therefore I only use my platform for Goldman Sachs issues. This issue is a business issue; it’s a civil rights issue, but it’s also a business issue.

The ability for employment benefits to be shared among spouses, the ability to move people who are dependent on visas for trailing spouses — all hinges on being able to deal with families of gay people in the same way that you deal with families of straight people. Otherwise, they can’t move around, they’re unhappy, and we can’t attract a whole set of very talented people.

Watch it:

In the brief, the businesses point out that DOMA requires them to discriminate against their employees or assume a greater financial burden to provide them with the same benefits as their heterosexual colleagues.

Blankein said that there have not been severe consequences to the company’s support for equality, though he previously has admitted that some of their clients no longer wished to affiliate with them. The Human Rights Campaign has honored Blankfein for fostering an inclusive work environment.

Jose Antonio Vargas has very publicly come out as both gay and undocumented.

Today the Williams Institute at UCLA released estimates that, for the first time, provide an estimate of the number of adult undocumented immigrants that identify as LGBT living in the United States today. Specifically, Gary Gates of the Williams Institute estimates that there at least 267,000 LGBT undocumented immigrants living inside the U.S. Out of all 904,000 LGBT immigrants in the United States, approximately 30 percent (267,000) are undocumented, while 70 percent (637,000) are documented. Williams’ analysis further shows that LGBT undocumented immigrants are more likely to be male, more likely to be younger, less likely to be Hispanic, and more likely to be Asian compared to the general undocumented population.

It’s worth noting that Williams’ estimate provides a “floor” or lower-bound estimate of the LGBT undocumented population. Williams’ analysis only captures adult undocumented immigrants (those that are older than 18) and includes a conservative estimate that accounts for the reluctance of LGBT undocumented people to self-identify and disclose their sexual orientation and gender identity.

Building on Williams’ analysis, a new report from the Center for American Progress unpacks the demographic characteristics, disparities, and particular challenges facing LGBT immigrants. Specifically, LGBT people find themselves at the intersection of two marginalized populations — the LGBT population and the undocumented population — that make them among society’s most vulnerable. For example, looking specifically at income insecurities, the median income for undocumented immigrants is $14,000 less than the median household income for U.S. born residents. For their part, same-sex couples make $15,000 less per year than families headed by an opposite-sex couple. Statistics are even more dire for transgender workers, 15 percent of whom make less than $10,000 per year. Considering these statistics, it stands to reason that earnings disparities are even starker for someone who is both LGBT and undocumented.

CAP’s report also highlights a number of other challenges facing LGBT immigrants:

• Family Separation for binational same-sex couples: The Defense of Marriage Act (DOMA), which denies federal benefits and protections to legally married same-sex couples, acts as a barrier to family reunification and an individual’s ability to sponsor a same-sex spouse or partner for residency.
• Detention Conditions: LGBT undocumented immigrants face a multitude of issues when faced with mandatory detention, ranging from discrimination, harassment and physical violence to segregation and denial of medically necessary services for HIV-positive and transgender detainees.
• Asylum Standards: Under current immigration law, immigrants seeking asylum must file within one year of entering the United States, otherwise, the threshold for gaining asylum is significantly higher. This arbitrary deadline belies the fact that many LGBT asylum seekers, who may come from countries where they have had to hide their sexual orientation or gender identity for risk of persecution, may not be prepared in that time span to come to terms with their LGBT identity.

Given the sheer number of undocumented immigrants that identify as LGBT and the complex issues they face, a path to earned citizenship is a critical component of advancing LGBT equality. The Obama Administration has already leveraged its administrative authority to give reprieve to LGBT immigrants and detainees. Now it’s Congress’ turn to act. In addition to passing immigration reform with a path to earned citizenship, there are other important policy recommendations that, if enacted, would alleviate many of the challenges facing LGBT undocumented immigrants:
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Our guest blogger is Christopher Frost, intern for the LGBT Research and Communications Project at the Center for American Progress.

In an editorial published Thursday, President Bill Clinton explained that even though he signed the Defense of Marriage Act (DOMA) in 1996, he does not stand by it. Signing DOMA into law, he suggested, helped dissipate the more “draconian” momentum to pass a constitutional amendment banning same-sex marriage. In fact, he now believes it to be not only constitutional, but blatantly discriminatory against gays and lesbians:

When I signed the bill, I included a statement with the admonition that “enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination.” Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned.

We are still a young country, and many of our landmark civil rights decisions are fresh enough that the voices of their champions still echo, even as the world that preceded them becomes less and less familiar. We have yet to celebrate the centennial of the 19th Amendment, but a society that denied women the vote would seem to us now not unusual or old-fashioned but alien. I believe that in 2013 DOMA and opposition to marriage equality are vestiges of just such an unfamiliar society.

Clinton joins 21 Senators and many other Congressional Democrats who previously supported DOMA but now stand opposed to it. The Supreme Court will hear oral arguments challenging its constitutionality on March 27.