An Open Letter to American Crossroads and Karl Rove

Dear Mr. Rove, Mr. Law, and Mr. Duncan:

I have to say that I really appreciate the name of your 527 organization. I, like you, believe that America is at a crossroads. But I am a progressive, and you are conservatives, so on almost every decision we are going to be at odds with each other. There is, however, one social conservative agenda item that I believe we need to agree on, and I am asking you to lead the charge in your camp. It involves individual liberty and limited government, and since I took those words off your web page, I remain hopeful.

If I am not mistaken, American Crossroads exists primarily to influence policy outcomes by ensuring that individuals who share your ideology get elected. Because you are essentially policy-setters, I am sure that I do not need to explain to you what a policy window is, but this is an open letter, so I will explain it for those who don’t. A policy window consists of three elements all coming together at once, and can also be described by saying that “the planets have lined up.” The first component is considered to be in place when the general public more-or-less agrees that a problem needs to be acted upon immediately. The second component is considered to be in place when there is a good policy proposal already out there waiting for action. The third component requires that there be strong political support for the policy proposal. I am writing to try and persuade you to put the influence of your 527 to work while this particular “policy window” is open. The policy proposal that I am asking your organization to support is the repeal of DOMA – the Defense of Marriage Act.

Before you dismiss this out-of-hand, please consider other moments in history when America found itself at a crossroads. Let me start with the Dred Scott decision in 1857. The way I see it, the Supreme Court attempted an “end run” around a very difficult no-win situation. Mr. Scott, his wife, and his two daughters had been moved to the free states of Illinois and Minnesota. Because he had not been freed, according the laws of those states, he sued his owner. The Supreme Court avoided getting entangled in state law by ruling instead that Scott, and by extension any person of African descent, could not be a United States citizen. This “end run” prohibited slaves and Blacks from bringing any kind of legal action to the courts of America. Fair-minded Americans everywhere, but particularly in the north, cried foul at this because they could not see how one person born on this soil could be subjected to a different set of laws than his or her neighbor when it was just an accident of birth that one had a darker skin than the other. America was at a crossroads in 1857 and the strong backlash against the Dred Scott v. Sandford decision eventually led to the Civil War, the Emancipation Proclamation, and to the adoption of the Thirteenth, Fourteenth and Fifteenth amendments in order to correct the error of that Supreme Court decision.

Now, consider the case of Edith “Edie” Windsor. She met Thea Spyer, the woman who would become her spouse, in 1967. Before Thea passed away in 2009 they had spent 44 years together as a couple. Like Dred Scott, Edie sought to take advantage of existing law (in Canada) that allowed her to marry Thea in May 2007. In February 2008, New York State lost a legal challenge and was obligated to recognize marriages from out-of-state. This meant that Edie and Thea’s Canadian marriage became recognized as a legal marriage in New York.

When Thea passed away in 2009, Edie found that the federal government considered her to be a stranger to this woman with whom she had shared more than half of her 80 years. She was ordered to pay $350,000 in estate taxes to the IRS. Again, fair-minded people across America are outraged that this woman is being treated unequally under the law. The law that Edie is challenging is DOMA, and Windsor v. United States is on its way to the Supreme Court.

Like the Dred Scott decision, it will not matter whether the Supreme Court rules for or against Ms. Windsor. If they rule against her, it will be seen as an attempt to narrowly define the rights of Americans, giving the constitution a decidedly religious skew. With the public opinion now showing that supporters of same-sex marriage now form a majority, a decision like this will likely fuel a backlash against hard-line conservatives. You should get the word out to your supporters about what happened after the 1857 Dred Scott decision. The South took great joy in the Supreme Court decision, but within eight short years the South was living with the consequences of what one Savannah tour guide refers to as “The Great Unpleasantness.”

Alternatively, what happens if the Supreme Court decides in favor of Ms. Windsor and strikes down DOMA? Well, it would leave a vacuum in American law and nature abhors a vacuum. Similarly, conservatives hate uncertainty, which now leads me to the real purpose of this letter.

Consider this instead. Going back to the idea of a “policy window,” an alternative to DOMA has already been introduced into both houses of Congress. It has been entitled the “Respect for Marriage Act,” and I am sure that the name itself makes conservatives across the nation cringe, but hear me out. If Republican lawmakers were to get on board with the repeal DOMA effort, it will do two things:

1) It will nullify the Windsor v. United States appeal and remove all of the uncertainty around that, and…

2) It will give the new bill a more palatable name and verbiage than would otherwise be the case.

I fully understand that a Republican is not going to get behind the policy as it is currently worded, but what if your 527 gets behind a compromise? You are wonderfully qualified to properly word this policy, so let me tell you what I think will work to get people like my husband and me on-board, and then I will let you take it from there.

In summary, this is what I think the new policy will need to do:

• The new policy will need to provide equal treatment to all couples who desire to enter into a contract to care for each other and share in an intimate relationship. You can call that contract whatever you want, but just remember that it was the unequal treatment under the law that prompted President Lincoln and Congress to react the way it did in 1865 after the Dred Scott decision.
• Since your supporters cannot support same-sex marriage, then let’s avoid the word “marriage” in the new law.
• Marriage licenses fall under state law in the first place, so nothing needs to be changed there at this point in time. Let’s keep the federal government out of state politics. Can we agree on that for now?
• Speaking of state’s rights, Section 2 of DOMA is not being threatened by any of these appeals currently making their way through the court system. For those who don’t know, Section 2 allows a state to not recognize a same-sex marriage that is performed in another state. I know, this is going to grate on some progressives, but we have to choose our battles here, and this battle is about federal law, so my advice to progressives is to get over it.
• If federal law cannot use the word “marriage,” then conservatives will have to become accustomed to being recognized at the federal level with a different word. I am proposing “civil union,” but feel free to suggest something new if you like. For me, this is about rights, not what word we give to those rights.

So, how will this all work? Since I am a cousin to Mike Leavitt, and my family all hail from Utah, let me use Utah as an example of how things might work under the new law, as I see it. You see, until I was 46-years-old I used to be like Mike Leavitt, and vote like Mike Leavitt. It was only when I could admit that I had been born gay, and that no amount of prayer could change that, when I converted to the “other side.” I like to tell people that it was only a matter of weeks after changing the voting designation on my driver’s license that my church excommunicated me, but I digress.

Suppose, after the new law I am proposing goes into effect, that a Mormon heterosexual couple in Utah want to get married. They would go and get a marriage license at city hall and then take it to the religious authority that will perform the ceremony, just like they do now. He will marry them, and then register the marriage on state records. The only thing that will have changed is that federal law will now recognize this marriage in the only way that it can; as a civil union. Remember, at the federal level, under the new law that will replace DOMA, the constitution prohibits the government from recognizing one union as different from another, but state law will not be restricted in this way. They will have been “married” in Utah.

So, to continue with my example, if a gay couple in Salt Lake City wanted to enter into a civil union, they would go to city hall and complete a domestic partnership registration form. They could have a ceremony, if they wanted, but they would have to have a notary public officiate at that ceremony. They might even need to call it something else because current Utah law forbids anything called a domestic partnership. This is going to be a gray area for the time being, but that is the compromise. Nevertheless, federal law, under the new policy that I am proposing, will not allow states to deny their residents access to their federal rights, so each state will have to come up with something that their voters can live with. The current Utah constitution is very restrictive, but if they could bend so far as to allow a “domestic partnership” registry, it will suffice so long as it is something that extends all of the federal rights to a same-sex couple. The intent of the new law will be to allow the gay couple with a “domestic partnership” in Utah to be recognized federally in the same way that the “married” couple from Utah is recognized, regardless of how Utah sees the two couples. Yes, I know that this is getting into the territory of Brown v. The Board of Education, but nobody said policy making for social issues was going to be easy. It might just buy your followers some time to shape state laws around the new reality, but the truth is, history, and just about every other developed country in the world, is on my side, not yours. Even the Dred Scott decision only lasted for eight years. Eight very unpleasant years, I might add.

At this point I will leave it with you to decide what you think is the right course of action for conservatives, but I hope you agree that to allow the current legal cases to reach the Supreme Court would be a mistake. If I were a betting man I would not be placing money on a favorable outcome for the conservatives. First off, the White House has determined that Section 3 of DOMA is unconstitutional (strike one), and then they instructed Attorney General Eric Holder not to defend DOMA, and he agreed (strike two). And so it has fallen to Speaker Boehner and Congress. I do not want to sound cruel, but he is not your strongest batter, but he is all you have left.

There are other reasons why I would not be betting on DOMA being able to withstand the challenges that it is up against. Recent polling has indicated that support for same-sex marriages in every demographic, including the evangelical base and Catholics, has jumped double-digits in the last five years. Other polling indicates that less than 32% of the voting public want Congress wasting their time defending DOMA in court after the attorney general’s office has already said that Section 3 is unconstitutional. The public wants jobs, so in the interest of all Americans it will be far better if the bill to replace DOMA works its way through both houses of Congress with minimal interference and debate. American Crossroads can make this happen.

I look forward to your response.

Sincerely,

Lester Leavitt

lester@mediaomniverse.org