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It âWas the Worst of Times...
Brief Democratic Reign Ends with Little to Show on GLBT Issues
You know, I could go down the election results and pick out the gay rights victories. The new gay mayor of Lexington, the marriage friendly governors in New York, New Hampshire, Rhode Island, Maryland and elsewhere. The first trans judge in history out of Alameda, a fourth gay congressman, etc..
But these wins pale before the loss of the House, expected yes, but no less damaging to our near term future. With the exception of Donât Ask Donât Tell, which still has a chance of being repealed in the lame duck Senate, this is the end of gay rights initiatives on the Hill for the next several years.
Barring some unexpected development in the next two years, Democrats will have a hard time reversing a 50-seat GOP majority. Indeed, the Senate is now so close that it will be up for grabs again in 2012. And if you assume, as I do, that corporate America leans Republican, the impact of Citizens United, the High Court case that authorized unlimited corporate spending on political campaigns, will undermine Democratic candidates for years to come.
Considering the pathetic progress weâve seen on gay rights issues over the last 20 months of full Democratic control, the notion that we can now advance anything but the most innocuous legislative proposal is a pipe dream. Whether you blame Obama, the Human Rights Campaign, the Senate Republicans, or Harry Reid, the fact is we had a window of opportunity and that window has slammed shut, leaving our entire agenda trapped in limbo with the un-notable exception of the Hate Crime law.
Personally, I put most of the blame on the shoulders of HRC, where leaders made no effort to revise our Congressional strategy well in advance of the 2008 election. Imagine if gay leaders had developed a major, and winnable, gay rights proposal, put it at the top of the list, and begun a single-minded lobbying effort well before Obamaâs election.
Instead, HRC pursued the exact same list of bills theyâve been pushing for 15 years, in the exact same order of priority. First Hate Crimes! Then ENDA! Then Donât Ask Donât Tell. Then, whatever. The priority had nothing to do with what could actually advance equality, and everything to do with what would be most likely to pass. Ergo, we got a hate crime bill, an almost useless achievement and far less than what might have been possible under the circumstances.
The hate crime bill was not just low hanging fruit. It was sitting on the ground and could have been passed without making it our official âNumber One Goal.â By emphasizing hate crimes as we did, we handed lawmakers an easy vote that allowed them to satisfy whatever small degree of pressure they may have felt to pass âsomethingâ for the GLBT community.
Meanwhile ENDA made no progress, and if the repeal of Donât Ask won momentum, it was thanks to the many other GLBT advocates that focused on the military ban, along with the grassroots energy they brought to the fight. But more importantly, our community has had no debate on the legislative priorities themselves.
Sure, we support whatever âgay thingâ might be introduced in Congress or discussed in committee. But why havenât the âgay thingsâ under debate changed in nearly two decades? Why are we fighting for a stand-alone bill to hamper workplace discrimination when we could be fighting to add sexual orientation to Title VII? There may be reasons, but where is the conversation? Why, for that matter, are we fighting for a workplace anti-discrimination bill instead of a general gay rights bill that would ban bias in housing and public accommodation as well?
Are these things too hard? Maybe. But thereâs an argument to be made that the opponents of gay rights are hostile to any proposal while the supporters of, letâs say, ENDA, would also support a broader bill. The dynamics of the fight would be similar either way, so why fight for symbolic victories when we could fight for more substantial ideas? Even if we lose, itâs preferable in my book to lose a bid for serious change than to lose a bid for symbolic progress. Americaâs relationship with the GLBT community has improved dramatically since the 1990s. So why are we still working for the same tentative pieces of legislation so many years down the road?
Brave Iowa Justices Voted Out of Office
A significant low point in last nightâs election was the ouster of the three Iowa Supreme Court justices who were up for what is usually a routine vote of approval. All three, who obviously joined in the unanimous opinion in favor of marriage equality last year, were kicked out on roughly 55-45 margins after the national anti-marriage group, NOM, poured bunches of money into the races.
Iowans also lost their Democratic governor Chet Culver. Itâs not clear to me that these results will undermine the right to marriage in Iowa. In theory, the state legislature can trigger a public referendum to amend the constitution. However, although Democrats lost control of the house, they maintained a four-vote majority in the state senate. I donât follow Iowa politics, so I have no idea whether this senate is solidly pro-equality and can fend off the calls for a marriage vote. I sure hope so.
But even so, NOMâs goal was to âsend a messageâ to judges in other states that may face the same type of retention vote. In this they seem to have succeeded.
In other bad news for Democrats, the Blues suffered big defeats at the state legislative level, losing majorities in at least 18 chambers including both the house and senate in New Hampshire, Maine, Minnesota and Wisconsin. Democrats also lost both chambers in Alabama and North Carolina, and as I mentioned, they lost the Iowa house. There are others, but the losses are worrisome, not just for redistricting, but for any and all statewide gay rights (or wrongs) proposals that might emerge over the next two years in these states.
I think Democrats also lost the New York state senate, although our slim majority in that chamber did not serve us particularly well over its two-year tenure.
Interestingly, Democrats won a number of legislative chambers in the otherwise disappointing 2004 election. Those victories seemed at the time like a harbinger of the national Democratic surges of 2006 and 2008. But under the circumstances, letâs just call them coincidental.
Obama Under the Gun
Iâve had the TV on all day, watching election analysis and Obamaâs press conference. Now, however, I have a Closer rerun, on which is making it hard to concentrate on news writing. Sometimes, when you have the TV on, itâs hard to shut it off even if you donât particularly want it on. Itâs like a friend who comes over and stays around even when youâd rather be alone.
At any rate, for all my complaints about Obamaâs lack of effort on gay issues, I certainly support his presidency and feel nothing but frustration on his behalf. He inherited an economy in freefall. He stopped it and started a slow but steady rise in economic growth. He stabilized job losses, albeit at an unsustainable level. He saved the financial system. He saved the auto industry. He has cut taxes. He passed a health care bill that saves money and increases benefits. And he faces an electorate that cares nothing for facts and votes on the basis of a vague notion that âthings arenât goodâ and âgovernment is too big.â
But before we get all sloppy, letâs point out that Obama was asked about Donât Ask Donât Tell during this conference, and although he repeated his support for openly gay service, he also said that it would undermine good order and morale were the policy to bounce around between the courts and Congress, leaving the Pentagon unsure of which policy is in force from day to day.
Well, you know what? Then he should have suspended the policy during the appeal of the Log Cabin Clubâs lawsuit and kept it suspended.
As you know, the Log Cabin Club won a great victory in California federal court last September, and last month, U.S. District Court Judge Virginia Phillip ordered the federal government to cease enforcing Donât Ask Donât Tell during the appeal.
Obamaâs Justice Department promptly scurried over to the Ninth Circuit, where last week, Judge Phillipsâ order was stayed on a 2-1 panel decision. A different panel will now consider the appeal of Phillipsâ underlying decision, a process that will take months.
Meanwhile, the lame duck Senate will debate an amendment to the defense budget that allows Obama to repeal Donât Ask Donât Tell on his own authority. Since the House has already passed the amendment, and will not do so again under GOP control, this is our last chance to kill the law through legislation. Obama, in turn, has pledged to undo Donât Ask under the powers granted by the amendment following review of an unnecessary commission report on the subject that is due Dec. 1.
Got all this? It seems as if Donât Ask is under serious attack and will be reversed fairly soon, either by the court or via the Senate. So why not suspend the policy (under court order) in the interim?
The answer from the president is that uncertainty would prevail, which is true. But what if the Ninth Circuit upholds the law and the Senate takes no action? What then? Will the President just throw up his hands and say âsorry, I triedâ? Under these circumstances, Donât Ask would be alive and well, with no prospects for Congressional repeal.
A president who truly wanted to end the law would take advantage of Phillipsâ court order and suspend the discharges for the duration of the appeal, undermining the argument that gay soldiers hurt our armed forces and creating a cohort of openly gay personnel who presumably would be protected from discharge just as the 18,000 married gay couples in California were protected by the California Supreme Court.
Win or lose, the law would be profoundly damaged. And if Obama really believes that suspending Donât Ask for a few months would severely disrupt military operations, then why is he in favor of repeal to begin with? Whatâs so hard about it? You issue an order of some sort and itâs done.
In other news of note, the insane Arkansas school board member Clint McCance took a star turn on Anderson Cooper and attempted to apologize for the poor choice of words he used on his Facebook page. McCanceâs verbal gaffes included wishing all gay kids would commit suicide and expressing pleasure at the fatal consequences of AIDS on the gay male community. McCance, a âChristian,â also resigned over the, um, unfortunate vocabulary.
Normally Iâd tee off on the idea that wishing gay kids dead was a simple case of inappropriate language, but Iâm running out of space. Oh, McCance received death threats, hundreds of emails and calls, and had to send his family out of state for their safety. Awwww. Did we overreact to your error in judgment? Our bad!
Also, amazingly, the Vermont Supreme Court just issued a ruling in favor of Janet Jenkins. Who, you ask? That canât be the same Janet Jenkins who has been pursuing a custody case against her ex-partner Lisa Miller for the last decade? Well, yes, as a matter of fact!
Miller and Jenkins have been at it since 2003, when the women dissolved their civil union and began an endless battle for custody and/or visitation with infant Isabella, who is now 8. Miller, a born-again Christian, moved to Virginia and initiated a state-to-state confrontation that came to an end when both the Virginia and the Vermont high courts agreed that the Maple Syrup State had jurisdiction over the case.
Over subsequent years, Miller simply ignored every court order coming out of Vermont, and the family court awarded full custody to Jenkins effective Jan. 1, 2010. Lisa promptly took Isabella and vanished, presumably leaving an appellate lawyer behind to contest the decision. Now, the Vermont justices have confirmed the ruling in Jenkinsâ favor, but Lisa is still nowhere to be found. As for little Isabella, I imagine sheâs a basket case by now, poor kid.
On the other hand, Isabella will have a hell of an autobiography to sell by the time sheâs 21. Think of the TV and movie rights. Lifetime, of course!