Equality Forum Day 5: What Now?
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.