First published on October 6, 2004, in the Chicago Free Press.
As of early October when this is written there seems little reason to alter my early July prediction that President George W. Bush will win reelection. If Senator John Kerry wins, I will not be unhappy - or no unhappier than if Bush wins - but I will be surprised.
Still, there is no harm in thinking about what a Kerry victory might mean for gays and lesbians. This is not to say there are not other issues than gay ones, even issues that may be more decisive for many gay voters. But other writers have discussed those elsewhere.
There seems little doubt that a Kerry victory, unlike a Bush victory, would tend to facilitate legal and social equality for gays and lesbians. Tend to facilitate; not provide. Both the Kerry campaign and its auxiliaries at the Human Rights Campaign have exaggerated the positive impact of a Kerry victory, unduly raising expectations, but it is true nonetheless, if to a lesser degree.
Kerry announced his opposition to the Federal Marriage Amendment, though he avoided the Senate vote on it. (He might say: "I was against it before I didn't vote against it.") So a Kerry victory would remove one strong source of arm-twisting advocacy when it is proposed in the next Congress. With a Kerry administration, because of any president's ability to buy and trade favors, that is an issue we would have help fighting and the amendment would likely lose by more than last time.
Kerry's support for state constitutional amendments barring gay marriage, as in Massachusetts, is troubling. Presumably he takes that position to balance his opposition to the federal constitutional ban. (He might say: "I favor denying rights at the state level, not the federal level.") But Kerry need not have taken that position.
Even if he did not feel he could safely oppose state amendments, he could have finessed the issue by saying, "I think we should leave that issue up to voters. I trust the voters, don't you?" Gays may believe that the right to marry should not be left up to voters, but Kerry's saying so would have been better than supporting state amendments.
Still, leaving the issue up to states allows gays a chance for eventual victories in a few states and the possibility of state-based gay marriage "demonstration projects." In any case, it will be easier in the future to repeal state constitutional bans than it would be to repeal a U.S. constitutional amendment.
But marriage is not the only gay issue. Despite his opposition to gay marriage, Kerry says he supports civil unions such as exist in Vermont and may be approved in Massachusetts. That suggests that a Kerry administration would support domestic partner benefits for federal employees and might provide mild encouragement to states to pass civil union laws.
Although Kerry has made troubling comments about "unit cohesion," he seems to support repeal of the military's ban on gay personnel. His administration could press Congress to repeal the ban, urge the military to redefine sodomy as forced sex rather than specific acts, signal courts that overturning the ban would not be resisted and publicly defend ending the ban as a wartime necessity.
The administration would support enhanced hate crimes laws and gay-inclusive non-discrimination laws. Even if those laws do not pass, public statements supporting them by a President Kerry and administration officials could promote more favorable public attitudes toward gays. There would be more support for candid and less-moralistic AIDS education. The prudish moralist Attorney General John Ashcroft would be excreted.
Many gay issues from gay marriage to the military's gay ban are already or will be taken up by the federal courts and we would doubtless get a friendlier hearing from federal and Supreme Court judges appointed by Kerry than ones appointed by Bush. Although Kerry appointees would not inevitably be pro-gay nor Bush's inevitably anti-gay, Kerry is less likely than Bush to appoint another Scalia or Rehnquist.
The problems with all rosy scenarios of gay progress under Kerry are twofold. One is, despite Kerry's relatively friendly attitude, his seeming lack of zeal on gay issues. The other, more important, is that both the House and Senate are likely to remain in Republican hands. Even if Democrats regained the Senate, the House is virtually certain to remain Republican, blocking most gay-friendly legislation.
But the chief effect of a Kerry victory would be less a matter of passing legislation than of changing the tone of public discourse about gays and lesbians. A Kerry administration would foster a friendlier political/social climate for us to continue our advocacy efforts. That is no small gain. We can achieve progress in public understanding more easily if our own government is not fighting us.
The other thing a Kerry victory would do is force the Republican party to reassess its Karl Rovian strategy of viewing Christian evangelicals as its electoral base and bending all efforts to increase their voter turnout by promoting religion and moralism and treating gays as a toxic element in the body politic.