Category Archives: Gay Rights

No Rites, No Rights

Those of us who argue for same-sex marriage typically refer to the 1008 or so rights that accompany state recognition of marriage. The rights most often discussed are concerned with hospital visitation, taxation and inheritance, and those inequities are particularly galling.

But there are lots of other rights that are denied to GLBT folks who cannot marry—and even to those who live in states that do allow same-sex marriage, thanks to the unwillingness of the federal government to recognize those marriages for purposes of federal law. Immigration law is an example.

Back in my days as Indiana’s ACLU director, I had a visit from a twenty-something young man (let’s call him Scott) and his lover, who was from El Salvador (let’s call him Juan). They had met on a student exchange program of some sort, and fallen in love. They wanted to make a life together, preferably in the United States. But the young man from El Salvador was ending the term of his most recent visa, and immigration lawyers had told him there was nothing they could do—that if he wanted to immigrate to the U.S., legally, he would have to go home, apply and wait. If memory serves, his likely wait was something like fourteen years.

Scott’s American parents were supportive. They offered to legally adopt Juan. That didn’t sit well with Juan’s parents, not to mention some pesky legal impediments to what was a pretty creative—or desperate—approach.  At that time—and probably still today—an equal protection lawsuit was untenable. The last I heard, the couple—consisting of two highly skilled workers who would have been valued members of the workforce had they been straight—was living in El Salvador.

Had Juan been “Janice,” the scenario would have been far different.

Thirty years ago, our daughter fell in love with a non-citizen. They married, and as the spouse of a U.S. citizen, he has lived in the U.S. legally ever since. No problem.

Unfortunately, Scott and Juan ran into two deeply-entrenched bigotries: one against same-sex couples, and one against Hispanics.

It is unnecessary to recount the current efforts in Arizona, Indiana and elsewhere to marginalize and harass Hispanics. The rhetoric is all about “illegals,” but the legislative measures are not so narrowly targeted. Meanwhile, my son-in-law has lived in this country for over 30 years without ever encountering anti-immigrant animus. Why? Here’s a clue: He is British, and very white. His accent is considering charming, even “classy.”

People are people. There are certainly undesirables who want to come to America (not to mention our homegrown crop), but they are undesirable for personal reasons: drug habits, criminal histories, contagious diseases, likely inability to find gainful employment. None of these reasons has anything to do with sexual orientation or country of origin.

In our interconnected world, where international travel is easily accessible and growing exponentially, people from different countries will fall in love. It makes no sense to treat those couples differently based upon their sexual identity or birthplace. These distinctions are not based on thoughtful policies, they are not enforced in order to make our country safer or to protect our economic well-being. They are based purely on prejudices that we would do well to discard.

Until we do, the Scotts and Juans of this world will continue to get the short end of the stick.

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What If They Held an Election, and Reasonable People Came?

This has been a pretty contentious session of the Indiana legislature, and one of the most divisive proposals has been the renewed effort to include a ban on same-sex marriage in the Indiana Constitution.

The amendment is really just a gratuitous effort to marginalize gay citizens, since we don’t have same-sex marriages in Indiana. Proponents want a vote on the issue, not because it is appropriate in our system to vote on other citizens’ fundamental rights–it isn’t–but in order to make clear that the majority of citizens in Indiana don’t like gay people.

They may be too late.

Indiana Equality Action recently commissioned a poll of Indiana citizens on attitudes toward the proposed amendment. The results were shocking–in a good way. Forty-seven percent of Indiana residents oppose the amendment, while 43% favor it. Even more surprising, 65% of self-described Republicans and conservatives opposed it, and 41% of seniors. More predictably, 67% of young voters opposed it.

I want to be clear: opposition to the amendment should not be equated with support for same-sex marriage. (The numbers show progress, but not that much progress!) However, there are plenty of compelling reasons to oppose constitutionalizing discrimination, even when you don’t particularly like the folks who are being singled out, and obviously those reasons have convinced a lot of people that this amendment is a bad idea. The poll also confirmed that Indiana citizens have much higher priorities than bashing gay people: the economy and jobs, education, the state budget, health care, crime and drugs, and taxes all came in well ahead of gay marriage.

Particularly interesting is how quickly attitudes on this issue have changed, even in staid, conservative Indiana.  Clearly that’s one of the reasons the usual suspects have been so desperate to get this amendment on the ballot–every year it is delayed, its prospects for passage dim further.

If the proposal passes this year, as expected, and if a separately elected legislature passes the identical language, it will go before the Indiana electorate for a vote. That means that voters first chance to weigh in on the issue will be nearly four years from now.

I wouldn’t want to bet on the outcome.

Cultural Whiplash

Who are we supposed to believe, our lying eyes or the polls?

On the one hand, efforts to marginalize gays—to label them as permanently “other,” as second or third-class citizens—have heated up since the advent of the Tea Party and the 2010 elections. Here in Indiana, we have seen the resurrection of efforts to constitutionalize a ban against same-sex marriage, an effort that has been dutifully endorsed by the majority party, and seems likely to pass during this legislative session.

Fortunately, the Indiana Constitution requires that proposed amendments be passed—in identical form—by two separately elected legislatures, so there’s hope it can still be defeated.  There is no similar roadblock to an equally hateful anti-immigration provision, modeled upon Arizona’s law, or to measures aimed at rolling back women’s right to control their own reproduction.

Other states seem fixated on efforts to exclude and demonize Muslims. The most ludicrous are measures passed by several states that outlaw the imposition of Sharia law—thus “solving” an absolutely non-existent problem.

In the U.S. Congress, a number of anti-woman measures are part of what appears to be a full-court press to repeal the 21st—and maybe the 20th—century. Newly elected ideologues are voting against science (the 31 Republican members of the House Energy Committee voted that global climate change doesn’t exist and besides, it isn’t caused by human activity) and economic reality (trying to reduce the deficit by refusing to raise taxes on even our richest citizens, and passing cuts likely to reduce revenues further by throwing the economy back into recession).

Looking at the news these days is a prescription for depression. Who are these people we’ve elected, and why are they actively trying to repeal the Enlightenment and destroy everything that makes America great? Are they insane, or just really, really ignorant?  What does it say about us that we elected these buffoons?

And yet.

Several recent surveys from respected pollsters have shown a slight majority of Americans in favor of same-sex marriage. An overwhelming majority favors legislation that would forbid employers from firing people simply because they are gay. The same Congress that seems to be trying to put women back in the kitchen, barefoot and pregnant, did repeal Don’t Ask, Don’t Tell. The Department of Justice has confirmed what seemed pretty obvious to many of us—that the Defense of Marriage Act is unconstitutional—and consequently, announced that DOJ won’t defend it in court. Even Arizona appears to be backing off its hateful anti-immigration campaign—not because Arizona legislators have suddenly come to their senses, but because their bigotry has cost the state millions in lost business and tourism. Nice people decided to spend their money elsewhere—and it turned out there are a lot of nice people.

In short, the politics of equality is decidedly mixed. If we look for evidence of progress, there’s plenty to see. If we look for evidence that we are regressing, we’ll see that too. If we look at the whole picture, we get whiplash.

I cling to one amply documented bit of evidence: every poll, every survey, shows that the younger generation—those under 35 or so—are more tolerant, more accepting of difference, more at ease in a multi-ethnic, multi-cultural world.

So when my generation is gone, things will improve. Unfortunately, a lot of people will be hurt while we’re waiting.

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Boys Will Be Homophobic Boys

This session of the Indiana General Assembly considered–and defeated–an anti-bullying bill offered by State Senator Tom Wyss.  The bill was similar to measures being considered in other states, and all of them have been offered in response to several high-profile cases where teenagers have committed suicide after relentless bullying by their classmates or peers.

You’d think such a bill would pass easily. Who, after all, is in favor of bullying? But in Indiana, the proposal was opposed by the Christian Right because–wait for it–it might protect gay youngsters. Obviously, a bill to prevent young men or women from picking on other youngsters perceived to be gay would violate the rights of those who don’t like gays.

If you think I am making this up, permit me to reproduce a paragraph from a recent issue of the Indiana Family Association’s weekly email.

“AFA of Indiana opposes the act of bullying of all students, regardless of the motives of the bully or the perceived status of the victim. However, many bullying bills and programs have become a Trojan Horse for the homosexual demands groups. There is a danger here in unfairly casting students with traditional values as bullies, silencing legitimate views, or creating specially protected classes of children as opposed to focusing on actual acts of bullying. There is an outstanding web site on this issue that parents, teachers and policy makers should investigate. True Tolerance has information about the problem of bullying as well as the concerns surrounding many of the school programs and the ulterior objectives of some homosexual activists pushing this agenda.”

In other words, AFA is against bullying. However, when the target of that behavior is gay, they are concerned about the “real motives” involved. Protecting gay children from abuse is just part of the “homosexual agenda,” intended to stigmatize those who express their disapproval of homosexuality with enthusiasm.

Reminds me of a case that the Indiana ACLU handled when I was Executive Director. A twelve-year-old in a southern Indiana middle school was being routinely beaten up on the playground, and despite frequent complaints from the parents, the school administration’s response was “boys will be boys.” The principal actually told the ACLU lawyer handling the case that the victim of the abuse brought it on himself, by “acting different.”

Bullying gay kids is just the expression of the bullies’ 1st Amendment rights. And the AFA is so solicitious of  our constitutional liberties.

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An Idea Whose Time Has Gone

The Indiana General Assembly is once again debating whether to amend the state constitution to ban same-sex marriage. That debate has been criticized as a distraction from the State’s pressing fiscal problems, and it is. But the proposal, HR6, is also bad public policy—whether or not one approves of same-sex marriage.

In my law and policy class, I employ a standard framework for analyzing proposed laws. The threshold question—required by the Constitution’s limitation on the powers of government—is whether the subject-matter falls within the proper scope and authority of the state. If it does, we investigate further, testing whether there is broad consensus on the existence and nature of the problem to be solved, whether the proposed law will solve the problem, and whether there are likely to be unintended negative consequences if the measure becomes law.

Applying that framework to HR6 is illuminating.

The regulation of marriage, in our system, is a state responsibility, so HR6 arguably meets that threshold. It’s all downhill from there.

Broad social agreement about the need for a law is an element of legitimacy. (That’s why people debating new policies point to polls showing support for their position.) In this case, whatever consensus there may once have been against same-sex marriage is demonstrably past-tense.

Same-sex marriages are legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C.  New York, Rhode Island and Maryland recognize same-sex marriages conducted elsewhere. Several other states recognize civil unions. Religious doctrine is equally fragmented and increasing numbers of churches and synagogues bless same-sex unions. Surveys of public opinion show a public that is almost equally divided on the subject.

Will passage of HR6 solve the problem? No.

Even if one believes that same-sex marriages are a “problem,” enacting HR6 will change nothing. Indiana law currently prohibits recognition of such marriages and that prohibition has been upheld by our courts. The only way we’ll get same-sex marriage in Indiana is if the U.S. Supreme Court rules that the Equal Protection doctrine requires it—and if that happens, a state constitutional ban would be unenforceable.

And what about those unintended consequences?

Several of Indiana’s largest employers have warned that enactment of HR6 will hobble them as they compete for the best employees. Economic development professionals warn that passage will make it more difficult to attract new businesses to the state.

Public employers—universities and municipalities with policies or ordinances granting health insurance and other benefits to employees—fear that HR6 will invalidate those benefits. (At IU, that would make us considerably less competitive for faculty, whether straight or gay.)

Corporate lawyers warn that the language of HR6 could be read to prohibit even private companies from providing benefits to unmarried partners. (HR6 by its terms applies to all unmarried couples, not just gay couples.) Proponents deny that possibility, but ultimately, it is an issue that will be litigated, and lawsuits are time-consuming and expensive.

Of course, there are also the uncertain consequences of creating a precedent by writing discrimination into the Constitution. If we can marginalize one disfavored group, why not others? Immigrants? Muslims? Atheists?

At the end of the day, this is an argument between two very different versions of morality and beliefs about the role of government.

A dwindling number of Americans believe that homosexuality is a chosen, immoral behavior, and despite growing scientific consensus that sexual orientation is immutable—that people are born homosexual or heterosexual—they want to use the power of government to stigmatize gay people.

Others of us believe that denying people equal treatment under the law because of who they are—whether that second-class status is based upon race, gender or sexual orientation—is not only unconstitutional, but deeply immoral.

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