Wednesday, September 22, 2010

Lady Gaga: Equality, Prime Rib, and Has Never Read the Constitution

Well, DADT did not get repealed.  This disappoints me.  I think the entire concept of it is silly, and if gays are welcome to serve openly in the military in places like Canada and all of Western Europe, it's pretty clear we are behind the times here in the United States. 

You know what also disappoints me?  Misinformation and confusion.  Lady Gaga held a "rally" in Maine in support of repealing DADT.  I agree with her.  It should be repealed.  However, her speech was filled with assumptions about the Constitution and federal law as it stands, all of which made it abundantly clear that she's never read the U.S. Constitution or done any research on how it has been interpreted.  (A lot of people do this -- "Isn't that in the Constution?"  "No, it isn't, actually.")  Moreover, rather than focus on DADT -- of which there are numerous really good arguments and studies as to why it should be repealed -- she chose to focus on her own interpretation of what she thinks the Constitution means, and turn her speech into a clustered up mess.  That's great and all -- but it is not the law.   

First, a brief lesson.  This is quick and dirty, since entire books have been written on this stuff.

The U.S. Constitution is "the law of the land."  It is interpreted by the federal courts, with the U.S. Supreme Court being the ultimate end all interpreter.

The 14th Amendment applies to the states, and has the famous "equal protection clause."

The 5th Amendment applies to the federal government, and although it does not have the words "equal protection," has generally been interpreted to apply equal protection under its "due process" provision.

The Constitution does not say who is entitled to this "equal protection," so that has been interpreted at length by the courts.  Some of those interpretations have been codified into federal statutes, the most famous being the Civil Rights Act of 1964.  Under the court interpretation and statutes, the main protected classes under federal law are race, national origin, religion, sex, pregnancy, age, and disability.  Sexual orientation has not been established to be a protected class under the equal protection clause under federal law or the Supreme Court other than with respect to hate crimes.

Moving on.  Here is a link to Lady Gaga's full speech.  She stated this:
Doesn't it seem to be that "don't ask, don't tell" is backwards? Doesn't it seem to be that, based on the Constitution of the United States, that we're penalizing the wrong soldier? 
Although it may sound crazy, the Constitution has not been interpreted under federal law by the Supreme Court to cover anti-discrimination laws based on sexual orientation.  The closest federal law applying to sexual orientation is for hate crimes, not general anti-discrimination.  A step in the right direction, yes.  Wholly encompassing?  No.  Many states have laws that prevent discrimination against people on the basis of sexual orientation, and some federal district courts have come to the conclusion that equal protection should apply based on sexual orientation, but the Supreme Court has not reached that conclusion, nor has any federal law stated as such.  It's a huge hodge podge at the moment.  So here, I'm not sure on what basis she is asserting that we should "penalize" a soldier for being homophobic, unless they happen to commit a hate crime. 
I am here today because I would like to propose a new law; a law that sends home the soldier that has the problem. Our new law is called "if you don't like it, go home."
And now she's amending the Constitution.  Or maybe she's arguing that the 14th Amendment equal protection clause should apply to homosexuals.  Or maybe she's arguing that there should be a federal anti-discrimination law for homosexuals.  Or maybe she's arguing that people aren't entitled to have their own opinion.  Who knows?
Or, moreover, if you serve this country, is it acceptable to be a cafeteria American soldier? Can you choose some things from the Constitution to put on your plate, but not others?
Here, she is referring to equality.  Where is she getting this "choose some things from the Constitution" stuff from?  It's not in there for sexual orientation as currently interpreted by the Supreme Court, or as enacted in federal law.  Maybe it should be there.  Maybe morally people shouldn't be homophobic.  But right now, it isn't there under federal law, so no one is choosing "some things" and leaving others.       
Should the military be allowed to treat Constitutional rights like a cafeteria?
Again, equality, and again, not a Constitutional right as it pertains to sexual orientation as currently interpreted by the Supreme Court, or as enacted in federal law.
I wasn't aware of this ambiguity in our Constitution. I thought the Constitution was ultimate. I thought equality was non-negotiable.
Has she read the Constitution?  If she had, she would know that it is obviously ambiguous, given how many millions of pages courts have spent attempting to interpret what it means and how it should be applied.  Has she read any case law on the equal protection clause or protected classes?  I'm not saying it's right -- at all -- but as of now, it is what it is, and the Supreme Court has not interpreted it that way.   
And, let's say, if the government can pick and choose who they're fighting for, as exemplified in laws like "don't ask, don't tell," shouldn't we as Americans be made aware of this imbalance?
I don't know that DADT states that the military is not fighting for gays.  I'm not really sure what she is talking about here, and it sounds a little like Chicken Little.  However, the Constitution and all of the case law interpreting it are publicly available documents, open for any American to read to their heart's content.  And the federal government most definitely "picks and chooses" which classes of people it thinks should be "protected," as would be apparent if she read any case law concerning equal protection.
Equality is the prime rib of America. Equality is the prime rib of what we stand for as a nation. And I don't get to enjoy the greatest cut of meat that my country has to offer.
Now she ties it all to her "meat dress" from the VMAs.  Is she trying to say that prime rib is the greatest cut of meat available?  I'm not sure I agree with that either, and it seems like a dumb metaphor.  What about kobe?  She's confusing two different things -- DADT and equal rights for homosexuals under the Constitution.  Although there are certainly overlapping issues, the vote was to repeal DADT, and that was what she was allegedly there to discuss.  The whole equal protection under the laws issue is another beast entirely.  Seems like she could've spent some time talking about all the other nations who freely allow homosexuals in their militaries, or about all the studies done showing that allowing homosexuals to be open while in the military doesn't have any affect.  Isn't that really the issue here?  Wouldn't that be more convincing than an argument attempting to enact entirely new law?   

I guess good for her for speaking out and all, but...maybe she should've done a little research first.  Or, maybe I'm expecting too much out of a pop star who organized a political rally.  In Maine. 


  1. Thank you for this. More and more, I wish stars would just keep their mouths shut. It's horrifying how many people have never read even an abbreviated pocket Constitution.

  2. I know. I'm just so tired of it. I honestly never realized it until I went to law school and actually studied constitutional law for a semester, and now it just burns me every time one of these celebrities speaks.