Gay Rights – Page 38 – Sheila Kennedy

The Marrying Kind

Here’s a quick quiz. Who said this?

“Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation’s commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.”

If you guessed this was part of a press release from HRC or Lambda, or a statement by a Democratic Congressman from a really safe district, you’d be wrong. This was from a recent Newsweek column penned by none other than Theodore Olsen, the very conservative former Solicitor General who was also the lead lawyer representing George W. Bush before the Supreme Court in Bush v. Gore.

As readers of this column undoubtedly know, Olsen has teamed with his erstwhile opponent in that lawsuit, David Boies, to challenge the constitutionality of Proposition 8.

When these two formed their unlikely team and announced their decision to challenge the constitutionality of bans on same-sex marriage, I’ll admit I was torn.

On the one hand, these are two of the pre-eminent lawyers in the country—not only can we have confidence that the legal and constitutional arguments will be made forcefully, thoroughly and competently, but there is tremendous value in the symbolism of having such established (and establishment), highly respected legal figures as proponents of equality for same-sex couples. On the other hand, this is a case that is intended to go all the way to the Supreme Court, where victory will be anything but assured and defeat would set back the cause of gay rights for a generation. Even a victory in the Supreme Court would undoubtedly bring backlash, and the predictable howls of the right-wing fringe about “imperial” courts and “unelected judges.”

So I was wary.

But the more I think about it, the less worried I am. First of all, as I have documented in past columns in these pages, the pace at which the culture is changing is breathtaking. It takes a long time for a case to work its way up to the Supreme Court—time during which those changes will continue, and the idea of same-sex marriage will seem less and less remarkable. Already, the popular culture is discounting the arguments against such marriages, particularly the allegation that permitting same-sex marriage will somehow harm “traditional” unions. As Olsen wrote,

“Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.”

Interestingly, pollster extraordinaire Nate Silver has crunched some numbers and come to a conclusion that undercuts assertions that same-sex marriage is detrimental to heterosexual marriage.

“Over the past decade or so, divorce has gradually become more uncommon in the United States. Since 2003, however, the decline in divorce rates has been largely confined to states which have not passed a state constitutional ban on gay marriage. These states saw their divorce rates decrease by an average of 8 percent between 2003 and 2008. States which had passed a same-sex marriage ban as of January 1, 2008, however, saw their divorce rates rise by about 1 percent over the same period.”

It takes time for the conventional wisdom to reflect such data. But if we doubt that conventional wisdom is now on the side of equality, we have one more bit of evidence from the Proposition 8 trial: The witnesses set to testify in defense of Proposition 8 have asked the Court to keep the media out. They claim they will be “endangered” if their identities are known. Really? These people base their defense of Proposition 8 on their assertion that tradition and morality and public opinion are on their side. If that is so, why not speak out publicly? Why not bask in the approval of the public? The only possible answer is: the public’s opinion has changed.

And that is cause for celebration. Hopefully, wedding celebrations.

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Another New Year

I’m at that time of life when the new years come around a lot more frequently. (As my husband says, “Life is like a roll of toilet paper—the closer you get to the end, the faster it turns.”) But no matter how often we ring out the old and ring in the new, it’s a time for reflections and resolutions, both communal and personal.

For those engaged in the fight for GLBT equality, the year that just ended brought mixed feelings and results. Maine and New York were bitter disappointments. On the other hand, progress more and more seems inevitable, inexorable. Little by little, as my generation “departs” (gentle term for “dies off”), younger people with gay friends and fewer prejudices take our place.

Obama has disappointed many in the community by not moving more quickly on Don’t Ask, Don’t Tell and other campaign promises. On the other hand, his White House has hosted more visibly gay people than any of his predecessors—and probably more than all of those predecessors combined—and his administration includes numerous openly gay appointees. Not very long ago, we would have all cheered just at the change in rhetoric emanating from the Oval Office. Much of the disappointment is a result of greatly expanded expectations, and the impatience nurtured by the truly stunning cultural changes of the past few years.

Speaking of those changes, this year the fourth-largest American city elected an openly lesbian mayor, and the California legislature chose an openly gay man as its next leader. Here in my own hometown of Indianapolis (a city often referred to as the buckle of the bible-belt), I attended a Christmas fundraiser for Indiana Equality, an umbrella organization formed a few years ago by GLBT groups to lobby our occasionally retrograde General Assembly. Among the 300 plus attendees were the Democratic, Republican and Libertarian Party chairs, and a number of elected officials and political candidates of all three parties. That just wouldn’t have happened a few years ago.

I could go on, but the bottom line here is that we need to reflect upon, recognize and celebrate the amazing amount of progress that has been made.

Which brings us to resolutions. And the first of those is to remind ourselves that, despite enormous progress, members of the GLBT community are not yet equal. There are too many states (including my own) where someone can legally be fired simply for being gay. There are too many states where the 1008+ legal benefits that come with marriage are inaccessible to gays and lesbians. There are too many states (including my own) where civil rights statutes do not bar discrimination on the basis of sexual orientation. So resolution number one must be to recognize how much more needs to be done.

Resolution number two, obviously, is to keep fighting the good fight. Testify at legislative hearings. Write letters to the editors of local papers. Give every cent you can spare to the organizations that are fighting for equality. Work hard to elect gay and gay-friendly candidates. Talk to people—in your family, at your workplace, in your neighborhood—who may still not understand that gays remain second-class citizens in so many arenas. This can be incredibly difficult, but it is probably as important as anything you can do. The act of coming out by so many in the community—often at great emotional cost and financial risk—was undoubtedly the single biggest impetus to the positive social changes we have experienced.

And of course, no list of resolutions would be complete without the perennial one. This is the year I’m really going to lose weight. How about you?

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Lessons from the Dark Side

The defeat of equal marriage rights in Maine was a gut-wrenching blow to gays and civil libertarians alike. There is something profoundly wrong with having to ask to be treated equally by your government. Equal rights should not be subject to vote—the entire purpose of the Bill of Rights was, in Justice Jackson’s memorable words

“to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Nevertheless, until that principle is extended to the LGBT community, last month’s election should be an opportunity to consider and evaluate the political options available.

One option—the course of action requiring the least effort—is simply to wait. Every time there is a vote on one of these referenda, those on the side of denying rights to gays and lesbians win by a narrower margin. Poll after poll tells us that most people on the wrong side of history are old; younger voters support gay equality by substantial margins. When my generation dies off, this conflict will be over.

The better option, however, is to take a lesson from the rabid right-wingers who managed to capture the Republican Party in the space of relatively few years. They accomplished that by participating in the party’s grass-roots politics—running for precinct committeeperson, school board, city council. From those relatively humble positions, they were able to support the candidates who agreed with them, and ultimately drive most moderates and a fair number of thoughtful conservatives out of the GOP entirely.

On the same election day that saw same-sex marriage lose in Maine, a number of openly-gay candidates were elected to public office. It is time to take advantage of the willingness of voters to elect gay and lesbian candidates. But in order to do that, GLBT folks have to be willing to get involved at those grass roots.

Let me give an example of what I mean. Here in my own city, I know of at least one openly-gay candidate who intends to go through Democratic party slating, and if slated, to run for our City-County Council. The decision who to slate is made by the party’s precinct committeemen. The most effective tactic the community can use is to encourage as many gay and gay-friendly people as possible to run for precinct committeeperson. I don’t know how it is elsewhere, but in my city, both parties are desperate to fill committeeman slots. Anyone willing to do the grunt work required is very likely to be successful.

Why elect openly gay candidates? Assuming that the people involved are otherwise good candidates—that they will be good public servants who represent all of their constituents—we can expect several outcomes. Let me just suggest two: for one thing, the electorate will see competent people who happen to be gay in positions of authority; that changes attitudes. (If you don’t believe me, think about the impact of Obama’s election in the African-American community!) For another, elected officials can influence legislation and policymaking. If you don’t believe me, look at what has happened to the GOP—and unfortunately, to the rest of us—in the wake of the radical right’s capture of that party. Even when they are unable to pass legislation, they’ve proven adept at preventing it.

And wouldn’t it be satisfying to turn the homophobes’ tactics against them?

The Pace of Progress

Civil rights activists often disagree over tactics. That was (and is) true of the African-American civil rights movement, and similar disputes characterize those working for equal rights for women, Latinos and other minorities. So it should not surprise anyone that gay rights activists often disagree about where resources should be deployed and when, or whether to be confrontational or to work behind the scenes.

There aren’t “good guys” and “bad guys” in most of these debates—just idealistic people of good will who have different ideas about the best way to proceed.

The most recent evidence of such disagreement was this fall’s March on Washington. It is no secret that many people in the so-called “gay establishment”—HRC comes to mind—were less than thrilled at the prospect of diverting energy and resources from places like Maine, where the recent recognition of same-sex marriage faces a Proposition 8-like repeal effort. (HRC did get on board when it became obvious the March would be held, but its early reluctance was hardly a secret. Barney Frank never did support it.)

At the March itself, another fault-line became evident.

Many members of the gay community are clearly angry that the Obama Administration has not yet acted on several promises to advance equality for gays, lesbians and transgendered people. A number of those who delivered speeches at the March made their displeasure very clear. The general sentiment was: yes, you talk the talk. But where’s the walk?

Others–generally those who have worked on equality issues for many years and who are all too familiar with the political barriers that have to be dealt with–believe that actually achieving these changes is more complicated than the critics seem to understand. They are impatient with impatience.

As a recovering lawyer, I am painfully aware that legal changes almost always lag cultural ones. That’s because legislatures and even the courts (angry accusations about “socialist” policymakers and “imperial” courts notwithstanding) rarely act until something akin to a social consensus emerges. Nor can a President unilaterally make most changes. And even when a President can act without Congress, through Executive Order, there are legislative consequences to be expected.

The impatience displayed by many of the Washington marchers is understandable. It’s like being told that “if you just stay in the back of the bus a bit longer” America is more likely to get health care and environmental protection. Why should GLBT rights be held in thrall to other goals? What’s the point of having political capital if you don’t spend it?

There are two things any constituency needs from its political champions: sincere commitment and the strategic smarts to actually get something done. I think Clinton had the commitment; but he couldn’t get it done. He was ahead of his time, for one thing; the culture was not quite ready. But he also made a tactical error; his approach to the issue of gays in the military was clumsy and badly timed. I think Obama knows how to get things done–even very difficult things.

Basically, Obama is asking the gay community to trust him.

It’s easy for me to say, of course–I’m not gay. But I DO trust him. And those of my friends who’ve been long-time activists on behalf of GLBT rights, people who know how tough these fights still are, trust him too.

We may be wrong–only time will tell. But when Obama says he’ll get it done during his first term, I believe him.

Obama and Gay Rights

As was evident in yesterday’s March on Washington, many members of the gay community are angry that the Obama Administration has not yet acted on several promises to advance equality for gays, lesbians and transgendered people. The general sentiment is: yes, you talk the talk. But where’s the walk?

Others–generally those who have worked on these issues for many years–recognize that actually achieving these changes is more complicated than the critics seem to understand.

Legal change almost always lags cultural change. That’s because legislatures and even the courts (angry accusations about “socialist” policymakers and “imperial” courts notwithstanding) rarely act until something like a social consensus emerges. Nor can a President unilaterally make most changes. And even when a President can act without Congress, through Executive Order, there are legislative consequences to be expected.

The impatience displayed by many of yesterday’s marchers is understandable. It’s like being told that “if you just stay in the back of the bus a bit longer” America is more likely to get health care and environmental protection. Why should their rights be held in thrall to other goals?

My own analysis is somewhat different. Barack Obama is one of the most strategic politicians to come along in my lifetime. I believe him when he says–as he did at the HRC dinner–that he is committed to achieving equal rights for the GLBT community. And I believe he will do so in his first term. But there are two things any constituency needs from its political champions: sincere commitment and the strategic smarts to actually get something done. I think Clinton had the commitment; but he couldn’t get it done. He faced a culture that was not ready, and his approach to the issue of gays in the military was badly timed. I think Obama knows how to get things done–even very difficult things. He is asking the gay community to trust him.