Category Archives: Gay Rights

Law and Marriage: a Case Study

Indiana is sometimes called the “buckle on the bible belt;” we are a socially conservative state. Nevertheless, while so many states have amended their constitutions to include prohibitions on same-sex marriage, Indiana has managed to beat back similar efforts. The natural question is: how? What is it about the legislative process and/or the strategies employed by the LGBT community that have allowed Indiana—at least, thus far—to duck the bullet of a constitutional amendment?

 Undoubtedly, the most important ally of the pro-equality forces has been the Indiana Constitution itself. The Indiana Constitution isn’t easy to change—in order to get an amendment on the ballot, both houses of the legislature must pass an identical measure in two successive sessions. That buys opponents some very valuable time, and places a procedural roadblock to any hasty or ill-considered measure.

So our Constitution has helped. It also helped that the Indiana LGBT community joined forces to fight the amendment.

Indiana’s gay community is not much different from communities elsewhere—there are multiple factions, organizations, bloggers, malcontents—you name it. (In fact, the gay community today reminds me of something my mother used to say about the Jewish community when I was growing up: that there are three organizations for every living Jew, and the only thing two Jews can agree on is how much the third should contribute.)

Nevertheless, despite the factions, the strategic disagreements and the inevitable backbiting, the major gay organizations in this state were able to come together to form and support Indiana Equality, an umbrella organization that facilitated the forging of a single, focused strategy. You can assess the importance of that by looking at states where strategy squabbles between and among gay organizations really hurt efforts to promote equality.

That strategy included some of the obvious things: forging coalitions with other progressive groups, and working in informal partnerships with the lobbyists for those organizations, for example. It also included some less-obvious aspects, including a cogent political argument to Democratic legislators: Did they really want a “hot-button” anti-gay measure on the ballot when they were running for re-election? Accurate or not, there is a perception that in 2004, GW Bush was able to get out the Republican vote in a number of crucial states because measures against same-sex marriage were on the ballot. Democrats in Indiana almost certainly would be damaged if there were a similar measure on Indiana’s ballot, and they’d be hurt whether or not they had personally voted for it. That is because such a measure would be highly likely to bring out straight-party Republican voters who otherwise might not show up at the polls. I think there is evidence that a number of Democrats who might not otherwise have been supportive took that warning very seriously. 

Probably the two most important strategies pursued by Indiana Equality, however, were the decisions to reframe the debate and to aggressively court the business community.

By reframing the debate, I refer to the decision to emphasize the effects the language of the proposed amendment would have on all Indiana marriages. While accurate, this line of argument was also intended to give legislators an excuse for opposing the amendment that didn’t require them to take the moral high ground. They could say, basically, “I’m with you, fellow homophobes, but I’m worried about how this language might affect us ‘normal’ folks.”

Finally, and perhaps most importantly, the community was able to get testimony opposing the measure from some of the state’s largest employers. In a very real way, the ability to enlist such high-profile allies is a sign of widespread cultural change, not entirely a testament to Indiana Equality’s persuasive powers. But IE’s lobbyists were able to obtain strong public statements from employers like Eli Lilly, Cummins Engine, Emmis Communications and others, who took the position that passage of the amendment would hurt their recruiting and interfere with their benefits policies. Here were pillars of the community—mainline, mainstream, sober business interests— implicitly saying that efforts to amend the state constitution to prohibit same-sex marriage are attributable to the political fringe. Their testimony helped IE marginalize proponents of the amendment and frame them as intolerant extremists so intent upon keeping gays second-class citizens that they didn’t care what damage they did to Indiana businesses or  heterosexual couples in the process.

Now, all of this could change; the marriage amendment people certainly haven’t given up. They tried again this year, and they’ll keep coming back—at least for the next few sessions. But Indiana Equality began this fight with an overarching goal: to “kick the can” down the road until the accelerating pace of change to the broader culture makes the issue irrelevant.

So far, that’s worked.

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No More Susie Sunshine

Anyone who has read my columns over the years knows I am a resolute optimist. My general theme is something along the lines of  “Yes, this bad thing or that has happened, but overall, look at the progress America is making.” And it’s true—over the long haul, we have seen progress in the general culture, at least when it comes to issues like women’s rights, gay rights, same-sex marriage, religious tolerance, etc.

 But to be honest, I’m checking out of the “look on the bright side” brigade. I’ve had it.

 During the Bush Administration, I was hysterical on a daily basis. We had this goofus in the White House who clearly had never read the constitution, had a very tenuous grasp of public policy and political philosophy—not to mention the English language—and was obviously being manipulated by Dick Cheney aka Darth Vader. As he dug the nation into an ever-deeper hole, fiscally and morally, I became more and more morose.

 Then, during the Obama campaign, I saw what I thought was a redemptive wave of political activism. Young people, in particular, came out to work for a candidate who didn’t pander to the haters, who spoke in complete sentences, and who promised a new dedication to the old principles of transparency and accountability in government. And that candidate won! An African-American intellectual actually won. Maybe things weren’t as bad as I thought!

 And then came the backlash.

 Anyone who is minimally fair recognizes that the government Obama inherited last January was a huge mess.  Even those who supported the Bush Administration, those who didn’t give a rat’s ass about civil liberties violations or gay rights or international condemnation, admitted that Bush’s policies created a fiscal nightmare. Not only did this new administration face financial meltdown, two “hot” wars, and a near-depression, it also faced a Republican party whose only goal was to see to it that nothing the new President wanted would get through Congress.

 Am I happy with everything that the administration has done? No, of course not. On civil liberties issues, this Administration has too often retained Bush policies—on State Secrets, detention, executive privilege, etc. On issues that matter to the gay community, Obama may not have been able to get DOMA repeal through a Senate paralyzed by GOP threats of filibusters, but he could have overturned Don’t Ask, Don’t Tell through Executive Order. He hasn’t. But how many of the pundits and wingers and other self-righteous critics could have handled what he walked into?

 I have been absolutely appalled by the immaturity of the loudest voices on both the right and left. The crazy right-wingers and Tea Party wackos—many of whom are clearly animated by racism—insist that Obama is Hitler, or at the very least a socialist trying to destroy The American Way of Life. (How dare he try to give everyone access to healthcare! How unutterably evil!) For their part, the ideological left is hysterically charging Obama with being a sell-out. The healthcare bill doesn’t go far enough, he spent too much to bail out the evil banksters (so what if there was a real risk of world financial system collapse) and not enough to bail out the auto industry. He didn’t put out a contract on Joe Lieberman. (Okay, I’ll give them that one.) And on and on.

 Meanwhile, the general public is just generally mad. Granted, they really aren’t too sure what they are mad about, or who’s to blame for whatever they are mad about. They just know things suck and they want to take it out on someone.

 All in all, it’s ugly. And unutterably dispiriting.

 It’s one thing to have good-faith disagreements about what ought to be done. It’s another to go off the deep end—to engage in fact-free fulmination, to lash out in the fashion of cranky four-year-olds everywhere. This country is facing huge, huge problems. One man—I don’t care how well-meaning or talented—isn’t going to fix all of those problems overnight, or in a year, or even in eight years.

 So Susie Sunshine here is checking out.

 Until the American public shows some sign of growing up, of understanding our own role in digging this hole, of giving some sign of a willingness to assume responsibility and help turn things around, I’ll be locked in my office, without newspapers, blogs, or television—and I’ll be in a very bad mood.

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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?