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Boehner, CCV on Wrong Side of History

By Kevin Osborne · April 20th, 2011 · Porkopolis

Most readers might think that House Speaker John Boehner (R-West Chester) would be too busy to meet with just anyone during the past few weeks, while he was grappling with a budget impasse and impending shutdown of federal government.

But the Orange One took time out of his busy schedule in late February to attend the National Religious Broadcasters convention in Nashville. Besides giving a 25-minute speech to the gathered throngs, one of the people Boehner met with privately was our ol’ rascally nemesis, Phil Burress, the self-confessed former pornography addict who now leads the lucrative Citizens for Community Values (CCV).

Burress brags about the meeting with the Speaker in a fundraising letter he mailed to supporters last week. In the letter, Burress implies that he and others in Nashville were instrumental in Boehner’s decision to hire a high-powered Washington, D..-based law firm to defend the Defense of Marriage Act (DOMA) from court challenges that it’s unconstitutional.

That attorney, Paul D. Clement, worked for President George W. Bush and will be paid using taxpayer money at a rate of $520 per hour.

Here’s how Phil describes the encounter to his followers: “Our own CCV president, Phil Burress, attended a meeting in Nashville where he and 10 other leaders met with Speaker John Boehner. After the meeting, Speaker Boehner announced that the House of Representatives would hire its own attorney and defend DOMA.”

Of course, GOP politicians pretend they’re oblivious to the hypocrisy of hiring their highly paid cronies on the taxpayer’s dime while pontificating about the need to cut federal spending. In their minds, protecting a backward, fearful law designed to defend against an imaginary threat to heterosexual marriage is more important than funding programs for the poor.

Boehner’s and Burress’ outrage comes after President Obama in February ordered the U.S. Justice Department to stop defending DOMA’s constitutionality in legal challenges.

Explaining Obama’s decision, Attorney General Eric Holder said, “The department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because — as here — the department does not consider every such argument to be a ‘reasonable’ one.”

Holder added, “Much of the legal landscape has changed in the 15 years since Congress passed DOMA.

The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s ‘Don’t Ask, Don’t Tell’ policy. Several lower courts have ruled DOMA itself to be unconstitutional.”

Those sound like good reasons to us.

Signed into law by President Clinton in late September 1996, less than two months before he sought reelection, DOMA defines marriage as the legal union “between one man and one woman.” Also, it doesn’t require any state to recognize a same-sex marriage from another state.

The situation involving DOMA reminds me of the anti-miscegenation laws that were prevalent in the United States before the Supreme Court’s 1967 ruling that finally ended all race-based legal restrictions on marriage.

Some background: The ruling was issued after a black woman and a white man who had been married in Washington, D.C., moved to Virginia, where interracial marriages were banned. In 1959, a group of police officers barged into the couple’s home one night to find them sleeping together and charged them with felonies. They were each sentenced to one year in prison, suspended on the condition they leave Virginia for at least 25 years. In 1963 the ACLU sued on the couple’s behalf, finally winning a legal victory before the high court almost four years later.

Before the ruling, 15 southern states — including Kentucky — banned interracial marriage.

At the time of the couple’s arrest, a Gallup poll showed 96 percent of white Americans were opposed to interracial marriage. Nowadays, a solid majority supports it.

(A recent poll, however, shows racist attitudes persist among some segments of society: A survey released this month by Public Policy Polling found that 46 percent of Mississippi Republicans still think interracial unions should be banned.)

Nevertheless, about 14.6 percent of all new marriages in the United States today are between spouses of different races or ethnicities. Certainly, the ruling had an impact.

The change in attitudes about interracial marriage came gradually. It wasn’t until 1991 that polls showed majorities in favor of interracial marriage. As writer Jon Ponder of Pensito Review notes, “As meager as support for gay marriage is now … it is still about double the 20-percent approval for interracial marriage in the country a few months after mixed marriages became legal.”

Maybe not so meager. Ponder wrote that in early 2010, when support was around 42 percent. It’s increased steadily since, with a CNN poll this week finding 51 percent in favor, and 47 percent opposed.

Not that public sentiment, ultimately, should matter much when it comes to civil rights and equal protection under the law. A major reason for having laws is to the protect the rights of minorities against the majority, just as the major reason for placing the right to freedom on speech in the Constitution wasn’t to protect popular speech but to ensure the expression of unpopular opinions and ideas. By definition, popular opinions and ideas don’t need the protection.

Clearly, if matters related to civil rights were left up to legislatures, interracial marriage probably would still be illegal in much of the Deep South today.

Before our nation was founded, various restrictions were imposed over the centuries on who could marry based on things like religion, class and condition of servitude. Looking back, most of us laugh or shake our heads in disbelief at those types of laws.

That’s easier to do in hindsight. Until the early 1970s, though, many conservative evangelical Christian leaders like Jerry Falwell and Bob Jones still opposed interracial marriages. These are icons that people like Burress admire and respect.

Back then, the Falwell crowd wrapped their opposition in legal arguments and technicalities about “states’ rights,” but the reality was far simpler: It was about fear and hate, the rest was just window dressing.

Currently, same-sex marriage is legal in five states and the District of Columbia, and such marriages are recognized in three other states. Forty-one states prohibit same-sex marriage, including Ohio, Kentucky and Indiana.

Boehner is relying on similar technical arguments to justify his spirited defense of DOMA.

“This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the president unilaterally,” Boehner said in a prepared statement, after the law firm’s hiring.

The arc of history isn’t on your side, Mr. Speaker. You will be embarrassed by these actions one day, and sooner than you think.


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