LGBT Rights: Behind the Eight Ball?
The ruling in the Proposition 8 case last week is worth celebrating -- nay, shouting from the rooftops -- even though it still has a long appeal process ahead. In the euphoria of our victory, however, are we forgetting what else is at stake?Take the Employment Nondiscrimination Act (ENDA), which has still not received a vote, despite promises made by Congressional leaders. I have the feeling that if LGBT organizations were able to rally as many supporters -- LGBT and not -- to the cause of ENDA, and if the media -- in California and elsewhere -- spent as much time on ENDA as they have on Prop 8, then maybe we might have seen more progress.
Hindsight, of course, is its usual perfect self. LGBT organizations did try to rally people for ENDA. Money was raised. Members of Congress were contacted. For better or worse, however, the issue did not capture the public imagination like Prop 8.
Neither did the more than 20 other pieces of LGBT-related legislation that sit in Congress, including bills that would ensure fair housing, adoption rights, immigration rights, and equal health benefits, as well as protect students from harassment and discrimination, offer medical and retirement benefits to same-sex partners of federal employees, and extend family leave to those caring for a same-sex partner or a partner’s children. Yes, there has been some progress on a repeal of the military’s "Don’t Ask, Don’t Tell" policy, but that seems to have stalled somewhere in the midst of a scientifically dubious survey.
Some in the LGBT community have for a long time questioned the focus on marriage equality, arguing that basic protections such as ENDA and LGBT-inclusive safe-schools acts make more of a difference in the everyday lives of LGBT people (especially in red states) than the right to marry. It’s a fair point.
On the other hand, some think that marriage equality will lead the way to other rights. Chris Weigant atHuffington Post wrote yesterday, “If the Perry v. Schwarzenegger decision stands, it means that 'sexual orientation' will be added to the federal list of protected classes of people. Which is the momentous aspect of the case. Because not only would the battle for gay marriage be over, but all the legal battles gays now face would be over, as well.”
That seems a gross oversimplification. Even the New York Times got swept up in the same current, though, calling the ruling, “a stirring and eloquently reasoned denunciation of all forms of irrational discrimination, the latest link in a chain of pathbreaking decisions that permitted interracial marriages and decriminalized gay sex between consenting adults. . . . Just as they did for racial equality in previous decades, the moment has arrived for the federal courts to bestow full equality to millions of gay men and lesbians.”
Let’s be clear. Marriage equality in and of itself will not bestow full equality on LGBT Americans. (Portugal, for example, allows same-sex couples to marry but not to adopt jointly.) Legally (though I’m no lawyer) I also think much depends on the exact wording of the final ruling in the Prop 8 case (whether in the district court, the circuit court, or the Supreme Court) to determine the extent of its impact. Much may also depend on the outcomes of two other federal cases that challenge the constitutionality of parts of the federal Defense of Marriage Act (DOMA).
Regardless of the legalities, however, the Prop 8 case may still help advance LGBT rights across the board. If it has done nothing else, it has shown we are deserving of equality. From arguments to decision, it has placed on display the corpus of evidence proving that same-sex relationships and LGB parents are pretty much the same as any others, excepting the burdens of inequality. It has shown the speciousness of the ultra-right’s arguments and their lack of credible experts. (And while the case did not address transgender rights specifically, I hope some of its conclusions -- that gender doesn’t matter to healthy relationships or parenting -- may aid in that area as well.)
Not all of us in the LGBT community may have wanted marriage equality (or this particular case) to lead the charge for LGBT rights. At the moment, however, it has captured public attention like few other LGBT issues -- and we would be foolish to ignore that. As the New York Times noted, “there are times when legal opinions help lead public opinions.” Judge Walker’s ruling may be a promising sign of things to come.
Being “behind the eight ball” usually means to be in a bad position. Being behind this particular eight ball, however, might just be a damn good spot.
Photo credit: Hector Rodriguez
August 10, 2010 http://gayrights.change.org
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