Archive

Archive for the ‘U.S. Congress’ Category

National Legal Panel at Equality Forum: Opening Wide for a Fire Hose of Information

April 29th, 2010 No comments

Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?

If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).

Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.

Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed.  There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).

During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.

“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.

In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed,  and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”

James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.

He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).

Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.

Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.

One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community.  That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.

She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.

There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).

I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?

Town Halls, Tea Parties, and My Further Adventures in the ER

August 15th, 2009 3 comments

Apparently, my kidneys are manufacturing stones like cheap Chinese toys. Last night, I found myself back in the ER with another stabbing pain. This is now what I look for in home sale ads: “Charming Victorian house in diverse neighborhood. Walking distance to emergency room. Must see!”

This time, I thought that a CT scan did make sense, but that wasn’t going to happen for several hours, because all of the CT staff was out sick. So, doped up on morphine, I walked home in the sticky dawn. I then took advantage of my pain-free state to sleep for several hours, but now I’m awake and uncomfortable. Hence, this post.

I’m now in favor of some kind of “cap and trade” program for kidney stones. I’m also in favor of major changes to the health care system. Today’s lesson is that the pieces don’t move especially well together. ER docs, my doc on call, the urologist I’m supposed to see next week — my experience suggests that they won’t check each other’s notes thoroughly enough (if at all), and that there are lost efficiencies all over the place.

But don’t take  my word for it: Here’s what some academic physicians had to say about the cost issue in a recent op-ed piece in the NY Times. Their many useful suggestions include reconsidering the “fee for service” model, which encourages overutilization of procedures. In a given year, for example, the number of CT scans done exceeds .2 per capita (62 million for 300 million people).

In a recent interview on NPR’s Fresh Air, Lisa Sanders, who writes the fascinating (to me and other worry warts) “Diagnosis” column for the Times, picked up on related point with her pithy insight that doctors are reimbursed for “doing” — not for “thinking.” One morning, she explained, she had some twelve patients, who represented the mine run of what internists encounter on a typical day: colds; bronchitis; flu symptoms; pain. Her final patient needed an ingrown toenail removed. Doing that brought Dr. Sanders more reimbursement from the insurance companies than everything else she’d done all morning, combined. Fee for service combined with heavy compensation for procedures, rather than diagnosis, may explain a good part of our current mess.

You may have heard that the evident need for some kind of health care reform hasn’t exactly resulted in universal acclaim for President Obama’s initiative. To an extent, the responsibility rests with the White House for failing to engage and to make clear exactly what’s being proposed, what would happen as a result, and so on.

Obama’s Town Hall Meetings have been a belated corrective to the more vitriolic incarnations of the format that have caught many people, including me, by surprise. Listen in and you’ll hear comments that are only sometimes about health care itself. In this story, one woman complains broadly and emotionally about the death of American exceptionalism. It seems to me that Kai Wright, senior  writer for the Root who was interviewed for the story, is exactly right in saying that health care has provided a convenient flash point for broader anger and anxiety: “What is my place in a vastly changing culture and a vastly changing economy?” is the question he suggests underlies whatever is actually spoken.

Wright also blames right-wing flame-fanners — especially Glenn Beck — for provoking this anger. In the chain of distribution, Beck is the wholesaler, and people like John Stahl, President of the Berks County, PA Tea Party Patriots, are the distributors who work on the local level. Reading about Stahl’s criticisms of “Obamacare” at Arlen Specter’s noisy town hall meeting, I did the only sensible thing: I called the guy. (His phone number is on his organization’s website.)

Stahl, who’s about to turn 65, doesn’t plan to turn down Medicare. This would be an easy but unfair ground for calling him on hypocrisy; as he pointed out, Medicare is a contract on which people (presumably including “John Stahl”) have relied upon. But it’s broke, he says, and so is the whole system. He doesn’t exempt insurance companies from blame for what he acknowledges is a problem with our health care system but puts the lion’s share of blame on lawyers and med mal suits, illegal aliens (and legal ones, too!) using the system, and the insufficient number of doc being graduated  from medical school.

A staunch libertarian (but one who critizes Obama and his staff for being “ideologues”), Stahl favors the free market solution (which I’m convinced won’t work in the case of health care insurance), opposes any kind of “counseling” of people about their legal options regarding end of life care (not the role of government, he says), and even put on a retro, Steve Forbes wig to call for the “flat tax, ” an idea that no one will ever be able to drive a stake through. The flat tax should fix the problem, he says, along with an unspecified dose of tort and immigration “reform.”

Stahl’s positions aren’t radical, and he stressed the need for civility in debate. But his idea of civility is broad enough to include even Claire McCaskill’s notorious Town Hall Meeting, which he defended. See what you think:

At the risk of engaging in amateur social psychology, Stahl seems to me very much to fit within Wright’s questioning classes. Laid off from his job in his mid-sixties, a conservative Christian seeing his world changing at a vertiginous pace, Wright has seized on an issue in which he’d seem to have little personal stake, using it as a prism through which his deeper concerns can be reflected. Obama is “not a good person.”  He’s “not to be trusted,” based on his “background.” He and his ideologues are using the public option as a kind of Trojan horse, to get to their ultimate goal of complete government takeover of health care.

Is this code for a kind of racism? That’s much too simple, because Obama’s race may itself be a surrogate, for some, for what’s making them uncomfortable with change, more broadly. The world is caving in on John Stahl, and it’s not fair.

The Hierarchy of Lawlessness

June 10th, 2009 No comments

Let’s play a depressing game. Consider these stories, and spot as many cases of lawlessness as you can:

  • As I wrote about a couple of days ago, a Philadelphia mob attacked and severely beat a rape suspect. The actions were condoned, encouraged, and rewarded by city officials. In this piece, Columbia University Professor Marc Lamont Hill attempts to justify the mob’s actions by noting that black women can’t count on the criminal  justice system to vindicate their interests.1
  • In the wake of the killing of Dr. George Tiller, who ran one of only three late-term abortion clinics in the country (now two, as his clinic is closing), Dr.  Susan Hill, a friend of the late Dr. Tiller’s and President of the National Women’s Health Foundation, appears on the Rachel Maddow show and says that the police often do not protect women who seek late-term abortions when they are harassed by anti-choice nuts. Apparently, the Freedom of Access to Clinics Entrances Act (“FACE”), the federal statute that allows both the U.S. Attorney General and any aggrieved person to sue for acts of violence or intimidation, isn’t doing enough to stem this misplaced zealotry, either.  Dr. Hill also states that the level of violence and intimidation has spiked since Dr. Tiller’s death, but also notes that federal marshals are on the ground to safeguard women’s safety. (The linked video is worth your time.)
  • This compelling story from the latest ABA Journal: In 1909, a black man is convicted of raping a white woman despite overwhelming evidence of his innocence. (Stop me if you’ve heard this before.) The judge essentially orders the convicted man’s attorneys not to appeal his death sentence. Other attorneys do step in and appeal, eventually filing a petition for habeas corpus in federal court, challenging the detention on constitutional grounds (including the right to a fair trial). The petition is denied in the lower court, but the court also stays the defendant’s execution pending appeal. When Supreme Court Justice John Harlan allows the appeal, an angry mob — enabled by the local sheriff — lynches the poor man, and shoots him “just in case.” The Supremes then host their one and only (still!)  criminal trial, eventually finding the sheriff, a deputy, and several mob members guilty of contempt of court. All are sentenced to (ridiculously brief) jail time, but are greeted as conquering heroes upon their return to their home town of Chattanooga, Tennessee. Meanwhile, the black lawyers who took the appeal, fearing for their lives, are forced to relocate.
  • The U.S. Government tortures enemy combatants, then protects those who ordered the torture. Congress attempts to strip the detainees of their habeas corpus rights, but the U.S. Supreme Court, in Boumediene v. Bush,  strikes down the law, finding that the procedures in place to challenge their detention were insufficient as a matter of due process.

Lawlessness isn’t limited to angry mobs. But such vigilantes are emboldened, and given example and cover, when those charged with enforcing the law — from renegade juries, prosecutors and law-enforcement officials to elected officials, to judges who forget their  role in the constitutional design, to legislators who pass laws they should know are unconstitutional — fail to do their jobs.

The above stories suggest a scary lattice of lawlessness. Violent anti-abortion protesters who aren’t arrested and prosecuted for breaking the law encourage others, equally or more violent. The stranglehold of Jim Crow racism was almost impossible to break given the lawlessness of public officials; it took the Supreme Court to create (admittedly crummy) accountability.  The Philadelphia mob will spawn others, because the message from the city is clear: “We’ll look the other way.” And only the Supreme Court, by the narrowest of 5-4  margins, stood between Congress and the further erosion of our Constitution when it comes to our treatment of detainees.

Maybe it’s the pervasiveness of this outlaw mentality that explains Marc Lamont Hill’s attempt at justifying the mob’s actions last week. Here’s what he had to say:

“I…have no antipathy toward the ghetto kangaroo court that sentenced him to a thorough ass-whooping. Still, I remain wary of hasty rushes to judgment (and punishment) regardless of the circumstance. After all, it was the ostensible need to quickly avenge rape that led to the physical and juridical lynching of thousands of black men throughout history. Also, if the racial tables were turned, we would surely disapprove of a white mob beating a possible black rapist. Black and white, however, are not two sides of the same racial coin.”

Hill then goes on to cite compelling historical and sociological evidence of the law’s failure to regard the black female body as worthy of protection. He then concludes:

“In a perfect world, law enforcement would be enough. Unfortunately, we live in a world so fractured by racism and sexism that black female bodies are still rendered unimportant. On Tuesday, the neighbors decided to send a different message. Until the broader society gets it, the community’s brand of justice is both appropriate and necessary.”

There’s so much wrong with this argument that I hardly know where to start. First, even if (as we must concede) the criminal justice system is flawed, that does not mean that the mob justice he champions is better. The mob had already attacked the wrong guy before they fingered this one. Is it OK if they’re wrong? If not, how does he know that the guy  they did beat is the right one? Because the very police he doesn’t trust said so?  And how far would he let the mob go? This alleged rapist was hospitalized. What if he’d died? Would that have been OK, assuming the same level of force was used?

None of these pedestrian concerns appear to have occurred to Hill, who practices being provocative on FOX News. Nor does he appear to have thought through the implications of excusing criminal behavior based on the race of the parties involved. Saying that “black and white are not two sides of the same racial coin” is sound-bite ready, but what does it mean? More to the point, what might that statement justify? Lawlessness isn’t so easily cabined, once unleashed and condoned. He’s “wary” of this kind of behavior? So what?

Batman is pretty cool as a comic book character (although I always preferred the less complicated Superman as a kid), but a nation of lawless zealots who “know best” and their academic and official enablers is less appealing.

  1. h/t Kris Kachline for alerting me to this article.

Andrew Sullivan’s “Familiar Feeling” — and a Qualified Defense of Obama

May 14th, 2009 No comments

Well, we’re not even four months into the Obama Administration and already the LGBT community is frustrated at the pace of developments. And, really, who can blame us, after the betrayals of the Clinton Administration and the hostility of his successor who-must-not-be-named? Here’s Andrew Sullivan, in a sobering and angry piece on the Atlantic website (“The Fierce Urgency of Whenever”):

“I have a sickeningly familiar feeling in my stomach, and the feeling deepens with every interaction with the Obama team on these issues. They want them to go away. They want us to go away.

“Here we are, in the summer of 2009, with gay servicemembers still being fired for the fact of their orientation. Here we are, with marriage rights spreading through the country and world and a president who cannot bring himself even to acknowledge these breakthroughs in civil rights, and having no plan in any distant future to do anything about it at a federal level. Here I am, facing a looming deadline to be forced to leave my American husband for good, and relocate abroad because the HIV travel and immigration ban remains in force and I have slowly run out of options (unlike most non-Americans with HIV who have no options at all).

“And what is Obama doing about any of these things? What is he even intending at some point to do about these things? So far as I can read the administration, the answer is: nada. We’re firing Arab linguists? So sorry. We won’t recognize in any way a tiny minority of legally married couples in several states because they’re, ugh, gay? We had no idea. There’s a ban on HIV-positive tourists and immigrants? Really? Thanks for letting us know.”

Steve Sanders over at Sexual Orientation and the Law Blog expands on the point, noting that some of the things Obama’s promised to do might be accomplished without legislative action; arguably, he already has the executive authority to stop the discharges under the completely indefensible “don’t ask, don’t tell” policy.

These points are fair, and we’re right to be concerned about both the pace of change and, perhaps as important, the weakening or outright disappearance of rhetorical commitment on central issues, such as federal civil unions; the Employment Non-Discrimination Act; and the repeal of  DADT. But the story isn’t this simple.

Sullivan himself is of two minds on this, as are many of us. He prefaces the eviscerating remarks quoted above with the following:

“[I]t’s tedious to whine and jump up and down and complain when a wand isn’t waved and everything is made right by the first candidate who really seemed to get it, who was even able to address black church congregations about homophobia. And obviously patience is necessary; and legislative work takes time; and there are real challenges on so many fronts….No one expects a president to be grappling with all this early on, or, God help us, actually leading on civil rights. That’s our job, not his.”

So, where are we and how concerned should we be?

Let me start with Sullivan’s “familiar feeling.” I’m less concerned than he is (of course, I’m not about to get kicked out of the country, either), principally because Clinton and Obama are so different, tempermentally. Clinton, for all of his obvious intelligence, was in many ways an incautious, borderline reckless, man: “I’ll just issue an order allowing gays into the military. What could be hard about that?” Obama’s endlessly analyzed personality is that of the careful incrementalist, who listens to all parties, decides on a course of action (and sometimes reconsiders his position, as with yesterday’s about-face on the release of prisoner abuse photos), and then works patiently and tirelessly for consensus. Anyone who could herd the divas on the Harvard Law Review has some accomplishment to commend his approach.

So what looks the same from one perspective — the lack of progress on gays in the military — may be quite different in underlying significance. We don’t know what Obama is doing (or thinking) behind the scenes, but I’m willing to bet it’s…something.

Not exactly reassuring, is it? I don’t have any way of verifying my suspicion on this issue, and I might be totally off. (I really hope not. DADT is just nuts; made even more so now that same-sex couples can marry or civilly unite. That legal act is now a ground for discharge under the policy. My next post will be of a conversation I had with the unceremoniously brilliant Alex Nicholson, the founder of an organization dedicated to repealing the policy, Service Members United.)

But there is movement. Let’s put this into context. For approximately forever, the only traction gay issues had at the federal level had been as a wedge issue — against us. I’m talking about DADT and the Defense of Marriage Act, not to mention the Federal Marriage Amendment (which never had a chance of passage but was conveniently unsheathed whenever an election loomed), and of course the epidemiologically and ethically indefensible ban on HIV-positive immigrants.

Now we have a gay-inclusive hate crimes bill set to pass and be enacted into law, likely quite soon. (I don’t agree that this is entirely symbolic; but even if it were, symbols matter). “Sources” tell me that there is a place on the legislative agenda this year for the Employment Non-Discrimination Act. (Whether it will be trans-inclusive is less certain, but vital: Who most needs this protection? Not me.) ENDA has been around since, if I’m remembering correctly, the Truman Administration. Neither Sullivan nor Sanders discusses this issue, on which progress looks quite likely.

Meanwhile, lifting of the HIV ban is moving along — albeit at the glacial pace of the federal regulatory process. Again, Sullivan (first quoting):

“’The Department of Health and Human Services has submitted for OMB review a notice of proposed rule-making to implement this change.’

“Translation: we’re doing the bare minimum to make us look no worse than Bush, but we have no real interest in this and are letting the bureaucracy handle it, and we guarantee nothing.”

I think that’s too critical. HHS Secretary Sebelius acted within one week of her confirmation to get this long-overdue repeal moving through the process. As this site reports, the bureaucrats are following standard procedure here, needed to put into practical effect the legislative repeal (changing the law meant that HIV was no longer required to be on the list of excludable diseases; now it must be removed).

Imagine it’s the end of 2009: The hate crimes bill is law, so is ENDA, and the HIV repeal is lifted (in time for Sullivan, I sincerely hope; but as he points out, there are many others for whom the ban leaves fewer, or no, options). DADT continues to be assaulted, relentlessly, from many perspectives, but is still in place. Civil unions, flowering all over the country, lie beneath still-frozen soil in D.C.

Would we regard this record as one of success? Let’s see if we get there, first. And let’s continue the relentless advocacy that is finally, I believe and dare to hope, beginning to push on the hinge of history.

Equality Forum: Picking up an Important Piece on Health Services

May 4th, 2009 No comments

On the day after Equality Forum’s week-long stampede finished trampling me, I’m able to stagger back to my computer and pick up a piece from last Saturday’s collaborative programming that I didn’t want to leave behind. (Tomorrow I hope to be able to post on the National Equality Rally that took place on Sunday.)

One of the panels I stopped in on, Health Care Reform: What Does it Mean for the LGBT Community?, ended up ranging over a wide swath of issues concerning the community. This wasn’t surprising, because the panel was conducted by the Mazzoni Center, an organization that delivers a staggering array of health-related services to the community; mostly for free. In addition to primary care, the Center: does anonymous HIV testing (and services for those infected with the virus); offers mental health counseling; provides a smoking cessation program as well as an array of support  groups; and has a number of education outreach programs, importantly including “The Collective.” This is a collaborative effort that does culturally targeted HIV prevention and services for gay and non-gay identified men who have sex with men (MSM, in the accepted public health acronym). This approach is generally recognized as the only one with a decent chance of working in communities that, for historical reasons, harbor a deep distrust of public health.

In short, the Mazzoni Center stands at the intersection of private health care and public health, recognizing that the prevention and education efforts at the center of the public health mission can reduce the need for chronic and acute medical care that consumes much of the health care time and dollar. So it was natural that the conversation was similarly expansive.

Listen to Nurit L. Shein, Executive Director, speaking of the need for coverage of services that are specific to the transgender community: “This is an issue that the LGBT community needs to coalesce around.” Is it reasonable to believe that whatever health care reform is on the table at the federal level will address this issue? Not unless advocates, like the Mazzoni Center and those they serve, get in touch with their officials, show up at public hearings, and agitate. Thus far, the LGBT response has been, too often, to let the “T” kind of dangle from the end of the alphabet string.

Mazzoni’s vital work, though, is often frustrated by the failures of public and private health elsewhere. Robert Winn, the Center’s Medical Director, somewhat surprised me by stating that he’d lost track of how many times patients had come to him after being informed by their former primary care providers that they didn’t want to care for gay people. (I  just checked my iPhone’s calendar; yes, it’s 2009.) Of course, this is a strictly illegal position in Philadelphia, but most people don’t sue: they just find another doctor. But until those with a public health, population-based approach combine with the AMA to drive these homophobic views out of existence, private prejudice will continue to negatively influence the medical and mental health outcomes of the community.

It’s well known that sexual, racial, and other minorities have much worse health outcomes than the majority. Every day, Mazzoni’s dedicated workers try to push a very large boulder up a very steep hill.

Equality Forum Day 5: What Now?

May 1st, 2009 2 comments

After a political eternity, several bills directly relevant to LGBT equality are queued up before Congress. In order of both expected ease of passage and anticipated timeline, these are: hate crimes, which has already passed the U.S. House, and is expected to navigate the more treacherous waters of the Senate and be signed, possibly within a couple of months; the bewhiskered Employment Non-Discrimination Act (“ENDA”), which could go through by the end of 2009; repeal of the “Don’t Ask, Don’t Tell” policy, which seems to enjoy broad support but is trickier because it involves the military; and repeal of all or part of the Defense of Marriage Act (date and prospects less clear).

Friday’s National Legal Panel seemed in remarkable agreement on these issues, and more cheered by these seemingly modest anticipated developments than might have been expected. After all, Obama’s in office and the Democrats hold power in both houses of Congress (even a looming filibuster-proof majority in the Senate now seems very likely, given Arlen Specter’s party flip). As the ACLU’s Chris Anders asked rhetorically: “What’s the problem?” Why shouldn’t all of these agenda items so long sought, and for which so much laborious lobbying has been done, sail right through?

Welcome to the sausage factory! All of these bills have to be introduced, go through committees, survive amendments, and then go to the floor for  passage. Then there’s reconciliation of possibly differing versions of the legislation between the two chambers. According to Georgetown law professor and legislative expert Chai Feldblum, the complexity of the process and the list of backed-up agenda items from various constituencies means that we’ve been “given” two slots for this legislative session: one for hate crime and one for ENDA. Time is the most precious resource on Capitol Hill; getting the “face time” you need is vital to move things forward.

The hate crimes law (“The Local Law Enforcement Hate Crimes Prevention Act“) isn’t strictly a “gay rights bill,” because it also covers criminal acts motivated by a victim’s race, religion, disability, national origin, or gender. It thus has a broad coalition working toward its passage. ENDA is trickier; whether the version that’s passed will offer “gender identity” discrimination is unclear. That’s the goal, but the TG community could be thrown overboard to get the bill enacted. I wouldn’t be in favor of  such a bill, because no one needs workplace protection as much as those who are gender nonconforming, and if they’re not included now — forget it. They’ll never get a bill through on their own.

Penn law professor Tobias Wolff, who advised the Obama campaign on issues of interest to the LGBT community, offered a rich and complex account of Obama’s support. Wolff said he “lost count” of the number of times Obama mentioned issues of gay equality on the campaign trail, even when his audience (say, a conservative black church) might have been less than fully receptive to it. Yet Obama never did a presentation before any of the national LGBT advocacy groups; which was also unprecedented (this time not in a good way) for a Democratic candidate. This might be looked at as less than supportive, but Wolff’s interpretation was that Obama preferred to construct coalitions that were more broad-based, and not especially associated with any particular interest group. He also related that Obama isn’t going to independently decide to do things for us; he expects advocacy and persuasive arguments, and can be moved by them. So in an odd yet paradoxically exhilarating way, there’s more work to do with a sympathetic President and Congress, not less.

According to Hayley Gorenberg, Deputy Legal Director for Lambda Legal, much less promising are the prospects for any kind of substantial help from the U.S. Supreme Court on marriage equality or the military policy. Here the situation is markedly different from that of the state level, where courts have often been strong allies, especially in recent marriage equality cases and on family law questions, such as second-parent adoptions. Although the Court has some good precedent cases (Romer v. Evans, which declared anti-gay animus an unconstitutional basis for legislation; and Lawrence v. Texas, striking down statutes that criminalize intimate sexual conduct between consenting adults), they’re very deferential to the military and not likely to require marriage equality any time soon. The Court might be receptive to the carefully crafted challenge to the part of DOMA that denies federal benefits to legally married couples; that case, though, has just been filed and would take years to reach the Court. By then, perhaps DOMA would have been repealed.

At least as far as “don’t ask, don’t tell” is concerned, though, the Obama Administration could adopt some internal policies and rules that would greatly lessen its arbitrariness and devastating impact on dedicated military personnel. And that interplay between decisional law, legislation, and regulatory law was consistently emphasized by the panelists, especially Feldblum. Moderator Nan Hunter, a Georgetown law professor, did a nice job in getting the participants to explain these relationships, and the law itself, in a way that the “lay” audience could understand.

What we’d have trouble understanding is a lack of movement. If these initiatives fail, the panelists agreed that we’d be forced to take responsibility for that failure. This prospect, though, wasn’t enough for anyone to seek the return of the Bush era.

Equality Forum Day 4 (Part 1): Politics 101 (Domestic)

April 30th, 2009 No comments

How important is bipartisanship in pursuing full equality for the LGBT community? Is it better to work on the state law level, or to push for national policy changes? How are our issues connected to larger issues? And what will be the questions facing the community ten years from now?

Moderator Patrick Guerriero used these open-ended questions to stimulate dialogue and a healthy level of disagreement among the members of Thursday’s National Politics Panel, attended by an audience of about 70 enthusiasts. Perhaps in an effort to achieve balance,  there were two identifiable Republicans on the panel (former Mass politician Guerriero and former Log Cabin Republican leaader Richard Tafel), one identifiable Democrat (Jon Hoadley, the Executive Director of Stonewall Democrats so young that he was apparently put on the panel to remind me of my own mortality), and two women whose politics seemed generally progressive,  yet practical (Toni Broaddus, Executive Director of Equality Federation, a national network of state-based LGBT organizations, and Darlene Nipper, Deputy Executive Director of the National Gay and Lesbian Task Force).

The Republican Party came in for a beating, despite Guerriero’s effective advocacy on behalf of some of the GOP’s courageous figures: a Massachusetts Republican(!) who ran against an entrenched Democrat who was ready to support a constitutional amendment overturning the Goodridge marriage equality decision; the Iowa Supreme Court Justices who allowed the Varnum marriage decision to be unanimous; and an ultraconservative district attorney in Colorado who zealously prosecuted the murderer of the transgendered Angela Zapata under the state’s newly enacted hate crimes law.

Tafel, to my surprise, appears to have had a sort of conversion experience (perhaps I should avoid that term). He grew up in the Philadelphia suburbs, where he and everyone else (OK, not everyone else) was Republican.  Now, he says, all of his nieces and nephews under the age of 30 are Democrats. He supported Obama, and urged moderate Senators Snowe and Collins of Maine to join Arlen Specter in the exodus from the increasingly depopulated and brain-dead GOP. When another panelist worried that activists shouldn’t put all of “their eggs in the Democratic basket,” Tafel didn’t seem worried. The GOP will “wander in the wilderness for a long time,” he opined. This was a culture shift on the order of FDR’s.

So, aside from Guerriero’s qualified defense of the GOP, what was there left to argue about? With the tiresome two-party debate on hiatus, other issues swam into focus. All panelists had their eyes on the big national prizes (ENDA, hate crimes, repeal of DOMA and of “don’t ask, don’t tell”), but were in general agreement that, to use Hoadley’s term, advocacy groups that didn’t get to the grass roots level were “Astroturf organizations.” Nipper explained Hoadley’s point to be that effective advocacy had to address the “issues that actually matter to people.” Obvious, right? But national groups1 have often been criticized for not taking sufficient account of these voices.

Broaddus and Nipper were particularly compelling in their account of the many interconnected ways in which state-level work needs to be done. Nipper was just in Maine, working with 150 field workers who came from several local states. (Somehow, I had no idea that this was going on.) That state is on the threshold of marriage equality, and these boots (on the ground) are made for lobbyin’. Broaddus emphasized the need to work on all fronts: through the courts; the legislature; and with the people directly. Iowa supplies a great example here. The state was targeted as a likely success on marriage, because (1) the court was fair and progressive; and (2) the constitution is hard to amend — but not impossible, of course, so advocates worked behind the scenes for some two years to lessen the chance that the legislature would initiate the amendment process. These actions  must be further supplemented by door-to-door efforts.

As for the federal level, this isn’t the first panel where I’m hearing a note of concern beginning to overlay and temper the community’s goo-goo eyes infatuation with Obama. If an inclusive ENDA  isn’t passed this year, then…when? Yesterday’s hate crimes vote in the House was the crumb we need to keep believing, for now.

When Guerriero asked the “where will we be ten years from now” question, I managed only with great self-control and muscular discipline to avoid  rolling my eyes. I hate questions asking for opinions about the unknown. But he must have known his panel, because they did a great job with it. Hoadley made the startling statement that he’d recently spoken to a group of young gays who had never known anyone who’d died of AIDS. His point was that each generation has different issues, new stuff to deal with. For his generation and the one right behind it, he’s hoping (so am I), that most of the basic equality issues will be resolved  in our favor by then.

Then we can get on with the more general construction of a more just society. Broaddus said that “Join the Impact,” an organization formed in angry response to the passage of Prop 8, was doing things like a food drive. There’s nothing particularly LGBT about that, except to the extent that the energy we’re harnessing in our current struggle is “the gift that keeps on giving.”

  1. “Give me an “H”! Give me an “R”! Give me a “C”! What’s that spell?”

DC About to Provide a Preview of Congressional Marriage Equality Debate?

April 10th, 2009 No comments

Even as Vermont was breaking through the Governor’s veto to enact a marriage equality law on Tuesday, the District of Columbia’s Council was voting unanimously (12-zip) to recognize same-sex marriages from other states. This was a preliminary vote; the Real Deal happens in early May. Then what?

The Home Rule Act of 1973 gave the District some long-overdue autonomy, but Congress couldn’t resist retaining a veto for itself: As set forth on the DC Council’s website, “Congress reviews all legislation passed by the Council before it can become law….” This could make for an interesting summer.

Note, first, that this isn’t the marriage equality bill: The council  members support equality, but are sticking a tentative toe into the whirlpool of Congressional politics. If this gets through, expect a full equality bill on its heels. So, what might happen to this trial balloon?

The easiest approach would be to, er, punt. This outcome seems to me likely. Here’s what one Congressman had to say in 2007 about approving DC’s  needle-exchange program: “You know, I came here to be a member of the United States Congress. I didn’t come here to be a member of the D.C. City Council.” Inasmuch as the Dems control everything in Congress right now, all but the most blood-red state Republicans might sit this one out, deferring to home rule and avoiding the merits of the debate.

Or they might take the advice of right-wing pundits like Michael Goldfarb and use the opportunity to make their (blue dog?) Democratic colleagues squirm. But will they squirm? It seems that either  side can use, as convenience dictates, arguments about home rule and about federalism (although, strictly speaking, this isn’t federalism as DC’s status has always been unique — and, more to the point, it’s not even a state).

But moderates in Congress might not find it necessary to avoid the merits. If marriage equality itself is directly up for discussion,we’ll get a good sense of where lawmakers stand, and likely a first read on the likelihood that the Defense of Marriage Act might be repealed sometime soon.