Making the Case

Our friend Dale Carpenter along with several other libertarian-leaning, nonleftist law professors filed an exemplary brief arguing that DOMA is unconstitutional under federalism principles:

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis. Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power. It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers. Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.

An array of briefs have now been filed from left-progressive to libertarian and center-right. That’s laudable. But let’s recall how the libertarian Cato Institute’s amicus brief in Lawrence v. Texas was the one that Justice Kennedy cited in his opinion overturning state sodomy laws (note: he didn’t cite the briefs from NGLTF or HRC).

As in Lawrence, Justice Kennedy (and perhaps, now, even Alito and Roberts) aren’t going to be swayed by the bigger-government, Democratic party-aligned progressives. But it’s still good to have them onboard.

More. Here is analysis that includes a link to the Cato Institute’s brief in favor of marriage equality.

Furthermore. James Kirchick writes:

At the time of the Stonewall Riots in 1969, few would have predicted that a movement predicated upon sexual liberation would mature into one calling for the right to get married and serve openly in the armed forces.

Some liberal gay activists, suffering from a bout of historical amnesia, do not like what they see as an attempt by conservatives (gay and straight) to claim the cause of marriage equality as their own.

Still more. Not a constitutional argument, but a powerful video ad from Republicans United for Freedom.


Obama’s gay inclusiveness during his inaugural address advances our cause. I have never said the Democrats aren’t far better on gay issues (who would argue they weren’t?). What I have contended is that, in many cases, they are not as good as LGBT Democrats claim and, in particular, that Harry Reid, with the administration’s tacit support, was working to bury “don’t ask, don’t tell” repeal efforts the same way the administration backtracked on immigration reform when it held congressional majorities, in order to have a campaign issue, but that the LGBT blogosphere and, especially, Sen. Susan Collins (R-Maine), refused to let that happen.

Let’s also be clear; those of us who believe that Obama’s economic and regulatory policies are beyond misguided and, in fact, are dangerously destructive, are compelled to point out that a party that combines support for gay legal equality with backward leftism on economics, with trillion dollar deficits and metastasizing public-sector growth, aimed at increasing dependency on government (and the party of government), will risk, in the end, discrediting the parts of its policy that are right. So I’m happy that LGBT Democrats have something profound to celebrate, but in no sense does this mean that gay critics of Obama and his party should back off for the sake of LGBT solidarity.

More. Michael Cannon of the Cato Institute on the importance of “Seneca Falls, and Selma, and Stonewall,” and what these milestones should mean to libertarians.

Pervasive Partisanship

The National Stonewall Democrats has ceased operations, at least for now, citing funding issues. More to the point, the organization really has had no reason to be, since the Human Rights Campaign competes far more successfully on the same turf—organizing LGBT support for Democratic candidates and working to defeat Republicans, including openly gay Republicans (such as Richard Tisei), and socially moderate, gay supportive Republicans (such as Scott Brown). In fact, the preponderance of the LGBT movement is a thinly veiled party fundraising operation run by LGBT Democrats, making the need for an explicit “Stonewall Democrats” on the national level redundant from the get go.

Relatedly, Washington Blade editor Kevin Naff opines on the nomination of Chuck Hagel to be Secretary of Defense, despite his recently renounced anti-gay record going back decades. HRC had scored Hagel a “0” during his time in the Senate from 2001-2006 (not a single pro-gay vote), but “immediately accepted the tepid apology” Hagel issued just before Obama announced his nomination. Moreover:

Did HRC extract any promises from the White House or Hagel himself before so quickly forgiving and forgetting his rather serious sins? Hagel voted for the Federal Marriage Amendment in 2004, putting him in the company of the most rabidly anti-gay members of Congress. In 1999, he said he opposed repealing “Don’t Ask, Don’t Tell.” …
It’s all politics as usual — Log Cabin opposes Hagel merely because Obama wants him. And HRC supports Hagel because it must now support everything Obama does. What’s lost here is accountability.


I am as happy about New York’s marriage equality as anyone.  But as with so many other things, the headlines are disproportionate to New York’s actual contribution.  As with the Stonewall uprising, New York is more fortunate in having a large media megaphone than in having any national leadership role.  This is certainly not a bad thing, since attention to goings-on in New York helps to validate the work so many people across the country have been doing.  But New York is like Microsoft: It’s very good at taking (and being given) credit for the original ideas and labor of others.

And there is a very deep irony in this victory.  Governor Andrew Cuomo cannot receive enough credit for taking the lead in making this happen.  After years of feints and dodges by New York’s unfathomable legislature, Cuomo showed what political leadership looks like.

But in his statement after the vote, Cuomo said:

“This state, when it’s at its finest, is a beacon of social justice. . . .  [T]he legacy is that we are the progressive capital of this nation. . . . the other states look to New York for the progressive direction.”

But it is exactly because New York did not adopt key elements of the progressive era that this law cannot be challenged.  The referendum and initiative, in particular, were landmark progressive reforms, first adopted by Oregon voters in 1902 and then by California in 1911 at the urging of Governor Hiram Johnson.  The referendum allows people to vote directly to keep or abandon any legislation signed by the governor, and the initiative gives voters the power to pass laws directly.

The fact that New York has never adopted either of these iconic progressive reforms is what drives the National Organization for Marriage apoplectic.  Their window for appealing to the ebbing popular prejudice against lesbians and gay men is closing rapidly, and they still have a few states where they haven’t yet been able to leverage that to amend state constitutions and cement the status quo in place.

I can’t say I feel sorry for NOM.  But if I were Governor Cuomo, I’d be a little less cocky about how progressive my state is.

Adele Starr

An important but unacknowledged figure in gay rights just passed from the scene.  In 1976, Adele Starr founded the LA chapter of Parents and Friends of Lesbians and Gays.  Five years later, she became PFLAG’s first national president.  Karen Ocamb has a nice overview of Adele’s public life, summed up in this wonderful quote:  “We did it out of love and anger and a sense of injustice, and because we had to tell the world the truth about our children.”

Lesbians and gay men weren’t the only ones who needed to learn to come out of the closet; so did our parents and families, who were often even more embarrassed about homosexuality than we were.  But honesty and unconditional parental love were part of Adele’s nature, and she had an unparalleled ability to talk to other parents who felt their worlds had been turned upside-down.

It is ultimately arithmetic that secures her place in our history books.  We are not just a minority, we are an extremely small minority, no matter how you slice and dice the numbers.  It took us generations to begin to assert our own self-respect, but that is not nearly enough to change the history of misunderstanding that nearly all cultures have built up around homosexuality.  We also needed the support of our families and friends.

That was the bulk of the task we faced back in the post-Stonewall 70s, and Adele Starr stepped up to the plate, not only for her son, Phillip, but for all of us.  At LA’s gay rights parades of the time, PFLAG was always greeted with the biggest and most heartfelt cheers.  Their presence with us was simply joyous.  The gay rights history books will not be complete without a full accounting of PFLAG.

I know how inspiring Adele was to me in LA as we were working on the early ordinance on domestic partnership in the mid-80s, but I am sure there were people like here in cities across the nation.  Parents like her were as much the pioneers in their world as we were in ours, and maybe a little bit more so.  We had our own mountains of prejudice to fight against, but try to imagine what it must take for a parent to reject their own child.  That was what PFLAG was fighting.

Adele Starr isn’t with us any more, but her work isn’t anywhere near done.  There are still parents who find their own sons and daughters repugnant because of the child’s sexual orientation.  Adele and PFLAG showed by example that love can dominate that unnatural and destructive set of feelings.  We shouldn’t, for a second, forget how important that is to us.

Sorry, But the Left Doesn’t Love You

Bill Browning writes on the Huffington Post that the left’s “One Nation” march on Washington included LGBT progressives groups such as GetEqual, Human Rights Campaign, Stonewall Democrats and others. But, Browning relates, in an email to him Lt Dan Choi of GetEqual reported on the reception the group got as they carried signs with the faces of six LGBT youth who recently died by suicide:

We attended the “One Nation” progressive march on Washington today and were met with mixed reactions by “progressives.” All we intended was to bring visibility to the recent gay suicides. Some remarked: “Yeah…If y’all just stop killing yourselves, and turn to God…” and “You guys are stupid.”

Asks Browning:

Why wasn’t the LGBT community front and center as part of the progressive community? Because, as we’ve seen with the current crop of “progressive” leadership—both inside and outside of the administration—our rights are not a priority for our friends and natural allies. We are the group that is always the easiest to lop off when the going gets tough—when people start to feel “uncomfortable.” We are the group that gets “support” if we’ll promise to keep our mouths shut…

LGBT organizations that purport to represent us and our issues signed on to this march to increase our visibility and support among progressives—even though some of these same orgs refused to even add their name to a list of orgs supporting the National Equality March. I hope they’re satisfied with the results they got.

As long as progressive LGBT “leaders” view themselves as Democratic party operatives first and foremost, that’s not going to change.

More. How “liberal litterbugs” trashed the Mall. Blogs Jenny Erikson:

What a sad day. The left can’t get people to an event without bussing them in and making sure their bosses cross their names off the list. The left can’t make their own signs, they have to be handed flashy manufactured ones. The left can’t even get people to respect the National Mall, a place that deserves reverence. The left can’t get a group of people that claim to care about the environment to, you know, actually care about the environment.

I overheard one of the attendees talking to a park ranger. “I just don’t understand,” he said, “Why is there so much trash? I heard there wasn’t any at that Beck rally … How did they do it?”

Partisans Only

"Campaign Spot" blogger Jim Geraghty writes in "For Better or Worse, the NRA Grades Candidates on Only One Issue" that some conservatives are miffed that the National Rifle Association looks likely to endorse the re-election of Sen. Harry Reid (D-Nev.), the senate majority leader and co-instigator of the Obama-Pelosi-Reid mega-government agenda.

As commenters to IGF has pointed out, the NRA is a nonpartisan organization focused on one issue-second amendment rights-and it supports conservatives or liberals who concur with it, which is one reason it's been so successful.

There really is no gay rights group that's comparable. The big Washington LGBT lobbies-even the ones whose bylaws claim that they're nonpartisan (and who once-upon-a-time truly were)-now overwhelmingly define themselves as part of the "progressive" coalition. These groups haven't been shy about treating non-gay issues as part of formal or informal litmus tests for candidate approval (this has been true not just of the Human Rights Campaign but even groups such as the Victory Fund, which maintains a pro-abortion requirement that trips up openly gay, pro-life Republicans who might have benefited from its support).

The clearly partisan gay groups (Stonewall Democrats, Log Cabin Republicans, GOProud) have their own role, which is different. But it would be constructive to have even one major LGBT group that would endorse and fund liberals or conservatives, Democrats or Republicans, based just on whether they supported legal equality for gay people. You might even begin to see more conservative Republicans break away from their party's anti-gay party line, just as Harry Reid and several liberal Democrats have broken from their party's anti-gun rights stance.

No ENDA in Sight

John Aravosis has a nice timeline of the stonewalling -- an apt term here in multiple ways -- from the heavily Democratic Congress on the Employment Non-Discrimination Act. First, there was going to be a vote in the House last fall. Then there was going to be a vote in January or February. Then there would be a vote in April. Now there will be a vote sometime before January. Maybe. Nobody's even talking about the Senate. Let's just say that time is not on ENDA's side. If it does not pass this year, it is unlikely to pass before 2013.

Recall that in 2007 the House voted in favor of ENDA but the Senate never scheduled a vote because, among other things, Democrats told us the mean Republican president would veto it. So there was no point in passing it. Now with stronger Democratic majorities in the House and in the Senate, and with a Democratic president in the White House, we still aren't even getting a vote on the bill.

But something besides the usual political timidity is involved here, as the Washington Post reports. Gay-rights advocates are once again insisting, this time with the support of every gay group and the openly gay House members, on including protection for transgendered workers in the bill. After a furor over expanding ENDA, such protection was deleted from the House version last time to guarantee passage.

Almost nobody wants to talk about it now, but the renewed insistence on including "gender identity" is killing any prospects the bill might have. Says the Post:

The legislation is unnerving moderate and conservative Democrats who face brutal reelection battles this fall, and its prospects of passing the Senate are somewhere between slim and none. . . .

[Rep. Barney] Frank has lost at least a few supporters this time around. Rep. John Campbell (R-Calif.), for one, feels that "if the transgender language is included, that's just too far," according to his spokesman.

Frank says he understands why moderate Republicans and politically vulnerable Democrats have "some uneasiness" about the issue. He has addressed two of the bigger concerns: workplace bathroom use and the appearance of transgender employees. . . .

None of these efforts seem to be swaying Blue Dogs [Democrats who are moderate and conservative, especially on fiscal issues].

[Rep. Heath] Shuler (D-NC), who serves as chief whip for the Blue Dog Coalition, said moderates have "walked the plank a lot around here on things that never go anywhere in the Senate" and that asking them to vote on a transgender bill in this year's political climate would be "a mistake." Asked whether he thought the bill would ever reach the floor, he said, "I can't imagine that it would."

We can protect gay employees from private employment discrimination now, this year, 2010. Or we can insist on also protecting transgender employees, who already have some protection under other federal law, and wait indefinitely for any protection. We cannot both insist on transgender-inclusion and get a bill passed for the foreseeable future. Maybe that's a price gay-rights leaders are willing to pay, but we should at least be honest about the cost.

ENDA was one of the two things (the other was the symbolic hate crimes law) that even skeptics like me believed Democrats would achieve. Now half of even that modest expectation is slipping away.

New March, New Movement

The Equality March was a success.

I didn't think it would be, honestly. I was worried about the lack of publicity, a sense of organizational disorganization, the tepid response from our trusted national organizations.

I was worried that the March would wind up being a few shirtless guys and a megaphone.

But I was wrong.

Thanks partly to Barack Obama deciding to speak the night before at HRC, the March brought positive national press attention to our issues. And enough people came - perhaps 200,000 from across the country - that it strengthened our sense of community and unity.

But perhaps most importantly, the March showed that we are now a different movement. We are a movement that knows what it is doing. We are a movement that will win.

The gay civil rights movement has slalomed through many iterations over the past 40 years. There were the Stonewall days, when we were trying to stop police harassment; the lesbian separatism of the 1970s; and the '90s era of identity politics, when we were determined to celebrate - and make the country accept- our distinct culture.

But the feel of the Equality March was very different.

This wasn't about outsiders seeking visibility. It was about ordinary people wondering why we weren't being treated like everyone else.

Despite the sunny weather, men weren't marching with their shirts off. There was no lesbian fire eating. No boas. This wasn't about a celebration of individual flamboyance or the acknowledgement of sub-identities. This was about showing Washington and the world that we are serious about our rights. That we will not be silent. That we will not back down.

Sure, there were groups of Christians and bears and anarchists and an amazing number of straight supporters. But by the end, the crowd mostly flowed together, with couples with children marching beside a guy in a chicken suit and everyone stopping by the White House for a photo.

Marchers carried signs that expressed rights-fatigue: "Tired of carrying signs," one said. "I got married. Why can't my moms?" said another.

We have spent the year protesting and marching thanks to the fallout over the passage of Proposition 8 last November, and all that activism shows. Even our young people are no longer new to this. We know what to say. We know what to do. We chant, sure, but mostly we walk, holding our rainbow flags high, making a statement through our peaceful presence.

There were a few celebrities, most notably Lady Gaga. But even they were about protesting, not performing. This wasn't a march to express our buying power or our party power. It was about our staying power. It was a march that said, "No matter how tired we get, how long we've been doing this, how much our feet hurt, we will stay the course."

Washington was empty over Columbus Day weekend. No Senators were looking out their windows to see the human river below. The White House was quiet. The center of DC felt almost deserted. There were none of the Pride Day crowds; no beer-swilling gawkers. No thump of dance music.

There was only a sense of determination. Of public will. Of the fierce belief that we deserve equality and if we demand it loud enough and long enough, we will get it.

The Equality March was less about who we are and more about what we can - and will - do.

The Equality March said to the country: We are not outsiders. We are Americans who were born equal. And it is time Washingon recognizes that.

Making Politics Work

The authors of the Dallas Principles, a proposed set of core values for achieving LGBT equality, have been criticized for their invitation-only meeting at a Dallas airport hotel in May, but I am not terribly concerned about that. I have seen the endless wrangling that resulted from scrupulously all-inclusive processes to draft the lists of demands for past marches on Washington. They were little more than navel-gazing exercises. My own problem with the Dallas Principles is that they shortchange proven activist methods, substituting an ultimatum.

My colleague Bob Summersgill, architect of the incremental strategy that has brought Washington, D.C. to the brink of civil marriage equality, faults the Principles' "No Delays, No Excuses" message for disrespecting activists around the country who have made gains through persistent and informed engagement with lawmakers and government executives. He points out that the Dallas document's give-us-everything-right-now tone is at odds with the long, painstaking efforts that are needed to win support from many politicians. Winning equality takes a lot of work, and there are no shortcuts.

Summersgill also strongly criticizes the Fourth Principle, "Religious beliefs are not a basis upon which to affirm or deny civil rights." As he notes, rejecting faith as a basis for advocacy ignores the deep religious roots of the civil rights movement and gratuitously insults a significant portion of the population, gay believers included. It makes no political sense to concede the entire religious sphere to our adversaries. In D.C., the marriage-equality cause was recently aided by more than 100 gay-affirming ministers who issued a joint statement of support.

The one-size-fits-all approach suggested by the Dallas Principles is counterproductive. In many states, the groundwork for marriage equality is far from being sufficiently laid, yet there is much useful work to do there. LGBT voters and their allies would be shooting themselves in the foot if they denied support to a good-but-imperfect candidate when the alternative was worse.

As a member of a nonpartisan advocacy group, I agree with the Fifth Principle, "The establishment and guardianship of full civil rights is a non-partisan issue." The fact that Democrats have a much better record of support for our issues doesn't mean we should be satisfied, especially given that the party increased its majorities in Congress and statehouses by recruiting more conservative candidates. If we want better choices, we have to recruit better candidates from every party-including LGBT candidates. The Gay and Lesbian Victory Fund is one such effort.

The Dallas Principles reflect a wider impatience with politicians. Impatience is a strength if it propels productive action, but not if it leads to a flight from reality. If politicians are unresponsive, we need to redouble our search for ways to reach them-not denigrate activists who take a different approach, as when the epithet "careerist" was hurled at people who attended the June 29 White House reception marking the 40th anniversary of Stonewall. I can understand criticism of a particular organization or staffer, but not insults against professional activists generally. Our adversaries have well-funded, professional operations, and intramural sniping will not help us compete.

Many in Congress underestimate their constituents, who are ahead of them on "Don't Ask, Don't Tell" and other gay issues. Helping these politicians catch up requires more than threats and boycotts; it requires plenty of individualized attention. Think of it as a marriage that you want to succeed. If you are looking to be unimpressed, you're bound to succeed; but it would be better to focus on how to replicate our successes.

Frederick Douglass famously said, "Power concedes nothing without a demand." I would amend that to say we gain power by asserting it, by summoning it within ourselves rather than viewing it as an external commodity to be obtained from others. When patrons at a gay bar in 1969 decided to stand their ground in the face of yet another police raid, it was an expression of power.

We have come a long way since then. Now we must step up in every city and congressional district and press for policy after policy in the disciplined, concerted way that confident and influential groups do. Every forward step prepares the way for the next. We do not need a loyalty oath or ultimatum. We need more people in more places doing more of the things that got us this far.