Letting States Decide.

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It's been a busy week, so I've ignored a lot of news. But belatedly, last Monday's Supreme Court decision not to review a challenge to Massachusetts' gay marriage ruling is of some significance.

I have come to believe the original, split decision by the Bay State's highest court requiring state recognition of same-sex marriages was an invitation to backlash with terrible consequences. Example: this week, Michigan was forced to end domestic partner benefits for state workers because of their state's anti-gay marriage constitutional amendment, passed Nov. 2. Even so, it would be supremely wrong for the U.S. Supreme Court to have invalidated Massachusetts' decree. Ultimately, this is a state matter and must be left to the interplay of state legislatures, governors and courts. That's why the Bush administration is wrong to try to federalize marriage laws with an anti-gay Federal Marriage Amendment that would bar any state from recognizing same-sex unions.

What was done wrong in Massachusetts cannot be easily undone without making matters even worse, but there appears little chance that any other state would now follow Massachusetts' lead and decree the "M" word for gay couples. As my colleague Dale Carpenter points out in his new column, the California model is far more likely as an evolutionary scenario, and one that's unlikely to galvanize the forces of reaction in a way that sets back the clock on gay equality for years to come.

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Eight Ways to Move Ahead

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First published, in slightly different form, December 2, 2004, in Bay Windows.

Pull yourself together, we have work to do. Despite the recent upheaval at the Human Rights Campaign (HRC) and the drubbing that same-sex marriage received at the polls in November, we need to prepare for new battles. Here are some suggestions for charting the course ahead.

Protect our hard-won gains.
Republican Senator Rick Santorum of Pennsylvania and others want to undo four decades of court victories for privacy rights, from contraception to abortion to sodomy. The public policy question is not how one views those things morally, but whether the state should be able to intervene. While our allies in the Senate are defending our privacy rights against theocratic judicial nominees, talk to your family and friends, write a letter to the editor - and remember our allies the next time they run.

Defend the marriage equality beachhead in Massachusetts.
The U.S. Supreme Court's decision not to hear a challenge to the Massachusetts Supreme Judicial Council's Goodridge ruling, which required state recognition of gay marriages, is good news. The Bay State's experiment can be a powerful example, as thousands of same-sex couples embrace a legal commitment in a state with the lowest divorce rate in the country. So save some year-end money for MassEquality.

Take the long view.
The passage of all 11 anti-gay state amendments is not a sign that we should give up, but a reminder that our fight for equal marriage rights will take a long time. Other priorities will have their adherents, such as anti-discrimination and hate crime laws, which is fine. The fight against military discrimination that weakens our national defense cannot be set aside. But the fight for gay families is fundamental, and must continue.

The focus in each state will differ depending on the situation. In some states, civil unions are more feasible. In others, legal challenges to the denial of couples' contracting rights are needed. In deepest red state territory, basic organizing is still needed. Work your support networks. Statewide groups can consult one another via the Equality Federation. Litigants can consult Lambda Legal and the ACLU.

Discourage "Lone Ranger" lawsuits.
An ill-advised case in Arizona, in which plaintiffs (a Phoenix gay couple denied a marriage license) refused to take advice from gay legal experts, is a cautionary tale for other couples whose hearts are ruling their heads. It makes little sense to vent your outrage at injustice through a lawyer if the results are likely to be even worse. (In the Phoenix case, the Arizona Court of Appeals found that there is no right to marry a same-sex partner under the state or federal constitution.)

Every case is not a good test case, and bad rulings only erect new barriers. Urge your friends to take a strategic view and to cooperate rather than charging off on their own. One useful thing we can all do is tell our stories.

Learn to criticize without adopting a scornful tone.
Insults do not substitute for evidence and argument, whether we are admonishing our allies or trying to persuade new voters. It is hard to remain civil when our passions are involved, but injecting poison into our discussions is a recipe for defeat. We can only win new supporters by reaching out to people who do not already agree with us. This requires addressing their perspectives and connecting with them as human beings.

Stop the partisan double standards.
After the election, Human Rights Campaign Executive Director Cheryl Jacques renewed her snub of moderate Republican Senator Arlen Specter for his procedural vote to send the Federal Marriage Amendment to the Senate floor, even though he publicly stated that he would vote against it on the substance. Yet HRC did not similarly reject Democrat John Kerry, who supports putting discrimination into the Massachusetts and other state constitutions. This blatant double standard will not make HRC's job any easier in the 109th Congress. With Jacques out, HRC can improve its credibility as a fair-minded advocate by choosing a more savvy and less partisan new leader.

Drop the cheap slams against black-tie dinners.
We will need a lot more fundraisers before we are done. If you know a better way to raise money, do it. If you know a more deserving organization, support it.

Stand up for your own values.
Given the harm that the radical right is doing in the name of faith, flag, and family, it is inexcusable that we have let them claim the rhetorical high ground on these issues for so long. If you want to see how a winning Democrat talks about these issues, read Barack Obama. But even he needs to get some letters from gay families.

Setbacks notwithstanding, the tide of history remains with us, because our cause is just and our country is America. But we must keep our oars in the water.

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Cheryl Jacques, You’re Fired.

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The firing (i.e., forced resignation) of executive director Cheryl Jacques by the board of the Human Rights Campaign, the nation's largest lesbigay lobby, is welcome news. Jacques had made an already too partisan organization a total front for the Democratic National Committee, even opposing the re-election of one of the GOP's most gay-supportive senators, Pennsylvania's Arlen Specter, who was the lead GOP sponsor of HRC's signature Employee Non-Discrimination Act (ENDA) bill and is the incoming chair of the Senate's powerful Judiciary Committee.

But the news that Hillary Rosen, partner of past HRC leader Elizabeth Birch, will be taking over (at least on an interim basis) is not good news. The rot at HRC began under Birch, who ended HRC's former policy of focusing on congressional races and not endorsing presidential candidates. Once the decision was made to devote the lion's share of HRC's resources to electing the Democratic presidential candidate (and in 2000, under Birch, that decision was made before it was clear that George Bush, and not John McCain, would be the Republican nominee), HRC effectively closed the door on any meaningful dialog with the national GOP.

And dedicating $28 million to purchase and refurbish a fancy HQ building in Washington, D.C., as opposed to spending those funds on, say, a nationwide communications program, or developing real grassroots networks, was another Birch decision.

Christian Grantham (hat tip to Gay Orbit) has more on Jacques firing, reporting that:

Sources say some board members expressed deep misgivings with how HRC presented itself during the 2004 elections. HRC Board member Bruce Bastian was particularly upset with HRC spending money on bumper stickers, t-shirts, billboards and tattoos that read "George Bush, You're Fired!"

Making Jacques a scapegoat, alas, won't solve the deep-rooted problems plaguing HRC.

Update: The Washington Post reports:

"For the organization that is considered to be responsible for setting the strategy for the [gay] community, the defeat that occurred on November 2 was stunning," one major donor said. "I think every single gay person in this country is trying to figure out what went wrong."

Gee, maybe giving John Kerry a free pass to endorse those anti-gay state amendments wasn't such a good strategy for gay (as opposed to Democratic Party) activists!

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The Year Ahead.

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Following this month's clean sweep in 11 states, amendments banning gay marriage are likely to be on the ballot in at least 12 to 15 more states next year, reports the Christian Science Monitor.

And as was the case in nine of the 13 state amendments passed since August, most ballot measures are likely to target officially sanctioned civil unions and other nonmarriage forms of domestic partnership as well.

At the federal level, Karl Rove plans to keep pushing to amend the U.S. Constitution to ban gay marriage. According to the Monitor:

Advocates of the amendment (which will be reintroduced in the new Congress) picked up support among newly elected senators and representatives - a sure majority in the House and a likely majority of the Senate, although both chambers have considerable distance to go before reaching the two-thirds majority necessary to amend the Constitution.

But at the same time, the Monitor reports:

Most Americans oppose gay marriage. But they're also against a US constitutional amendment. And most approve either legalizing same-sex marriage or officially sanctioning civil unions for such couples, according to exit polls in this month's election. Even Mr. Bush has spoken approvingly of state-established civil unions for gay couples.

And Matt Foreman is quoted saying something that's not crazy:

"Let's not pretend it doesn't hurt," says Matt Foreman, executive director of the National Gay and Lesbian Task Force. "We need to step back, reflect, and process why the margins of loss in most of the states were depressingly large, where we should go from here, and how we are going to get there."

For one thing, Mr. Foreman told the group's annual conference in St. Louis just days after the election, gay-rights advocates failed to build sufficient grass-roots support before it began lobbying lawmakers and filing lawsuits....

"If the movement had been thinking clearly, we would have had a political and public education strategy that preceded the legal strategy," he said. "That obviously didn't happen."

No, I guess it didn't.

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Spousal Rights by Increments: California Shows the Way

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The two guideposts in the battle for gay marriage in the coming years must be federalism and incrementalism. Federalism means focusing on the states.

Incrementalism means taking things slowly. Fortunately, we have a successful template for the recognition of gay relationships. While others were grabbing headlines with dramatic judicial victories, gay Californians were quietly and patiently persuading state legislators to experiment with increasing degrees of legal protection for gay couples. There's still no gay marriage in California, but we're getting awfully close. Here's how it was done.

When first created in 1999, California's domestic partnership program was little more than a formal registry. Two adults of the same sex could sign up as domestic partners if they lived together, agreed to be responsible for each other's basic living expenses, and promised "to share one another's lives in an intimate and committed relationship of mutual caring." A domestic partner could terminate the partnership simply by writing a note to the other partner.

That first year, the program created few tangible protections. Domestic partners were given hospital-visitation rights. And cities in California were allowed, but not required, to offer the domestic partners of their employees the same benefits as spouses. That's it.

The next year, 2000, voters in California passed the Knight Initiative, which banned gay marriage. Progress in adding to the rights of domestic partners that year was exceedingly modest. Domestic partners were permitted to secure housing in specially designed accessible residences for the elderly. The legislature also passed a bill allowing domestic partners to use family medical leave to care for a sick partner, but Gov. Gray Davis vetoed the bill, insisting on an "off-season" for gay-related legislation.

The following year, 2001, saw more dramatic progress. Among many other advances, domestic partners were given the right to use stepparent adoption procedures; to sue for the wrongful death of a partner; to make medical decisions for an incapacitated partner; and to use sick leave to care for an ill partner. The state also agreed not to tax the value of domestic partner health insurance coverage.

In 2001, legislators also proposed to treat a domestic partner as a "spouse" for purposes of inheritance when a partner dies "intestate," that is, without a will. But the idea was shelved when Davis threatened to veto it.

In 2002, in the wake of the September 11 attacks, Davis reversed his position and signed the intestacy bill. Other minor progress was made that year, including a law allowing domestic partners to receive the birth and death records of a partner.

In 2003, the California legislature dramatically expanded the rights and duties of domestic partners. Effective January 1, 2005, domestic partners will be treated like spouses under state law, except for state income tax purposes. (A proposal to allow domestic partners to file joint state income tax returns was withdrawn after a state agency estimated it would cost more than $5 million in lost revenues in the first year alone.) A domestic partner can no longer terminate the relationship simply by sending a note to the other partner. Now the partners will have to get the equivalent of a divorce.

What started as almost nothing for gay partners in 1999 will have become shadow marriage by 2005. Yet there has been no great public outcry in the state, in contrast to the political upheavals that followed the revolutionary judicial victories in Hawaii (1993), Vermont (1999), and Massachusetts (2003).

Two factors account for the difference. First, California domestic partnerships were created democratically. California is so far the only state to enact legislation of general applicability recognizing gay relationships without being forced to do so by courts. This gives people, including losers in the political process, the satisfaction of having been heard by their representatives. As we have seen, courts can be overruled by constitutional amendments. When victories are earned democratically, they're seen as more legitimate and are therefore more secure.

Second, California's gay lobbyists and openly gay legislators proceeded incrementally. They compromised, backing off when necessary. In retrospect, we should thank Gov. Davis for occasionally applying the brakes for us.

Incrementalism does a couple of important things. It forces those uncomfortable with gay relationships to deal with concrete questions rather than abstractions. While it's easy to oppose "gay marriage," it's politically difficult to oppose any single one of the benefits and responsibilities that comprise the legal status of marriage. Sure, gay marriage will destroy civilization. But will it destroy civilization to recognize, for example, the right to file for state disability benefits on behalf of a mentally ill domestic partner, as California did in 2001? It's very difficult for anyone but the most hardened homophobe to oppose that.

Incrementalism also gives the public time to adjust to each advance. One fear of gay marriage is that it will destabilize families. Proceeding by degrees, we can demonstrate that measures to shore up gay families do not threaten heterosexual ones.

With the federal government firmly in the hands of anti-gay conservatives, and with the courts growing fearful of backlash, it's time to pour resources into state legislatures like California's. In a few states, like Connecticut, it may be possible to achieve a near-marriage equivalent in one piece of legislation. In most other states, we'll have to move gradually. There's just no excuse now for legislative inaction in friendly places like New York, Illinois, and New Jersey.

Think big. Start small.

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Oregon: A Middle Way?

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The activist mythos holds that all who voted for gay marriage bans did so out of "hate." The idea that folks might be genuinely (if wrongly) concerned about weakening marriage is simply dismissed. Oregon, however, presents a problem - the state voted strongly for Kerry, but also strongly to ban same-sex marriage. That means there were an awful lot of Democrats who also voted "anti-gay." Activists don't really want to think about that, as it produces troubling cognitive dissonance.

Now something else peculiar is happening in Oregon. As the state's Albany Democrat-Herald reports:

Just a few weeks ago, state Sen. Ben Westlund voted "yes" on Measure 36 to ban gay marriages in Oregon. Now, the central Oregon lawmaker is hard at work drafting a civil unions bill for the 2005 Legislature to give gay and lesbian couples some of the rights bestowed on married couples.

"It's just the right thing to do," the Tumalo Republican says. "Nothing in Measure 36 prevents the Legislature from affording equal rights and privileges to same-sex couples."

Of course, there are many social conservatives who oppose granting any kind of legal recognition to gay relationships. But the numbers who support gay marriage plus those who oppose marriage but support (of at least don't oppose) civil unions is the majority we need to advance our rights. Oregon could be showing us the way.
- Stephen H. Miller

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Wanted: New Strategies.

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James Driscoll writes, in an op-ed running in the conservative Washington Times titled New Gay Political Strategies:

[W]hy was it necessary to wave a red flag before religious conservatives and give ammunition to the far right by backing a sensational split decision from one of our most liberal state courts? Timing is everything in politics: In America in 2004, gay marriage was not an idea whose time had come.

The gay movement's haphazard embrace of gay marriage seems reactive and media driven. Too often gay-rights groups measure their success in volume of newsprint and minutes on prime time, rather than in numbers of openly gay people at the tables where decisions are made.

Instead of gay marriage, our strategic priorities for 2004 should have been: 1) allowing gays to serve in the military without hiding who they are; 2) eliminating employment glass ceilings for gay people; 3) getting our place at the table, which means openly gay representation in government and both parties in rough proportion to our numbers and talents; 4) civil unions.

While our strategy has been adrift and ill-timed, our ham-handed tactics have frequently played into our enemies hands.

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11/217/04 - 11/27/04

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Newsflash: One Party Strategy Is a Failure.

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I've been out of town, so here are a few catch-up items.

The Washington Blade article Bridges burning, gay groups cope with GOP dominance, reports (at long last) some big donors to the Human Rights Campaign, the nation's largest lesbigay lobby, are questioning the group's strategy. The main issue: the decision by HRC leader Cheryl Jacques, a former Democratic state legislator for Massachusetts, to direct the lion's share of the group's resources to a defeat-Bush campaign. Said Randy Foster, a member of HRC's Federal Club (for large donors):

"Until we create a new strategy knowing we live in a conservative environment, as a community, we will be ineffective ...

If HRC, by its nature, should be bipartisan why have posters that say, 'George W. Bush, you're fired' ... Little or no conservatives will reach out to us. The strategy to date has failed."

Jacques responded that "working with this administration is going to be hard" but that HRC officials were working on a long-range plan for the next year, though she declined to elaborate, says the Blade. No kidding.

Michael at Gay Orbit shares a letter he sent to HRC on their campaign against Arlen Specter:

You've sure put Arlen in his place... even though I distinctly remember him saying he was absolutely going to vote against the [Federal Marriage Amendment] if it came to a floor vote.

Thank you for doing everything you can to make sure that gay and lesbian Americans aren't taken seriously by the majority of Americans who did not vote for the presidential candidate you so desperately wanted to win. By taking this stand against our best Republican friend in the Senate, you sure showed them, didn't you? I know, as you do, that it's not about advancing gay issues. ... I know it's not your job to fight for my equality, but rather, to cement your position as a supporter of the Democratic Party, because you know, it's not like they'd ever take us for granted or anything...

Elsewhere in the Blade, editor Chris Crain has penned another worthy editorial which, after taking some well deserved shots at the GOP, notes:

The Democrats aren't much better. They ran fast and furious away from our issues in the 2004 election and somehow still managed to blame us for their defeat. It still confuses me how a party can refuse to defend us before the general public and still claim their loss is our fault. ...

In an appearance Monday on National Public Radio, House Minority Leader Nancy Pelosi, a longtime gay rights supporter, went so far as to complain that Kerry's failure on gay marriage was one of communication, not substance. She argued, incredibly enough, that the Bush and Kerry positions on gay marriage were indistinguishable, since both were opposed to legalizing it. ...

Remember that the same infamous exit polls that supposedly signaled the triumphant rise of "values voters" also indicated that a substantial majority - 61 percent - support [either] gay marriage or civil unions. If gay rights groups and their allies in both parties would only find their backbone and actually make the case for our equality, we can win this mighty battle. But if we are afraid to try, we are surely doomed to fail.

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11/21/04 - 11/27/04

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Let the People Decide?

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I'm with those who believe court-ordered gay marriage in Massachusetts ignited the backlash that led 13 states to pass constitutional amendments this year banning same-sex marriage, 11 having done so on Nov. 2. But blogger Steve Sanders' Reason & Liberty site makes the argument that courts should order marriage equality. I still don't agree with him, but I like having my ideas challenged and found it worth a visit.

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11/14/04 - 11/20/04

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