Brief Democratic Reign Ends With Little To Show

You know, I could go down the election results and pick out the gay rights victories. The new gay mayor of Lexington, the marriage friendly governors in New York, New Hampshire, Rhode Island, Maryland and elsewhere. The first trans judge in history out of Alameda, a fourth gay congressman, etc..

But these wins pale before the loss of the House, expected yes, but no less damaging to our near term future. With the exception of Don’t Ask Don’t Tell, which still has a chance of being repealed in the lame duck Senate, this is the end of gay rights initiatives on the Hill for the next several years.

Barring some unexpected development in the next two years, Democrats will have a hard time reversing a 50-seat GOP majority. Indeed, the Senate is now so close that it will be up for grabs again in 2012.  And if you assume, as I do, that corporate America leans Republican, the impact of Citizens United, the High Court case that authorized unlimited corporate spending on political campaigns, will undermine Democratic candidates for years to come.

Considering the pathetic progress we’ve seen on gay rights issues over the last 20 months of full Democratic control, the notion that we can now advance anything but the most innocuous legislative proposal is a pipedream. Whether you blame Obama, the Human Rights Campaign, the Senate Republicans, or Harry Reid, the fact is we had a window of opportunity and that window has slammed shut, leaving our entire agenda trapped in limbo with the un-notable exception of the Hate Crime law.

Personally, I put most of the blame on the shoulders of HRC, where leaders made no effort to revise our Congressional strategy well in advance of the 2008 election. Imagine if gay leaders had developed a major, and winnable, gay rights proposal, put it at the top of the list, and begun a single-minded lobbying effort well before Obama’s election.

Instead, HRC pursued the exact same list of bills they’ve been pushing for 15 years, in the exact same order of priority. First Hate Crimes! Then ENDA! Then Don’t Ask Don’t Tell. Then, whatever. The priority had nothing to do with what could actually advance equality, and everything to do with what would be most likely to pass. Ergo we got a hate crime bill, an almost useless achievement and far less than what might have been possible under the circumstances.

The hate crime bill was not just low hanging fruit. It was sitting on the ground and could have been passed without making it our official “Number One Goal.” By emphasizing hate crimes as we did, we handed lawmakers an easy vote that allowed them to satisfy whatever small degree of pressure they may have felt to pass “something” for the GLBT community.

Meanwhile ENDA made no progress, and if the repeal of Don’t Ask won momentum it was thanks to the many other GLBT advocates that focused on the military ban along with the grass roots energy they brought to the fight. But more importantly, our community has had no debate on the legislative priorities themselves.

Sure we support whatever “gay thing” might be introduced in Congress or discussed in committee. But why haven’t the “gay things” under debate changed in nearly two decades? Why are we fighting for a stand-alone bill to hamper workplace discrimination when we could be fighting to add sexual orientation to Title VII? There may be reasons, but where is the conversation? Why, for that matter, are we fighting for a workplace anti-discrimination bill instead of a general gay rights bill that would ban bias in housing and public accommodation as well?

Are these things too hard? Maybe. But there’s an argument to made that the opponents of gay rights are hostile to any proposal while the supporters of let’s say ENDA, would also support a broader bill. The dynamics of the fight would be similar either way, so why fight for symbolic victories when we could fight for more substantial ideas? Even if we lose, it’s preferable in my book to lose a bid for serious change than to lose a bid for symbolic progress. America’s relationship with the GLBT community has improved dramatically since the 1990s. So why are we still working for the same tentative pieces of legislation so many years down the road?
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Brave Iowa Justices Voted Out Of Office

A significant low point in last night’s election was the ouster of the three Iowa Supreme Court justices who were up for what is usually a routine vote of approval. All three, who obviously joined in the unanimous opinion in favor of marriage equality last year, were kicked out on roughly 55-45 margins after the national anti-marriage group, NOM, poured bunches of money into the races.

Iowans also lost their Democratic governor Chet Culver. It’s not clear to me that these results will undermine the right to marriage in Iowa. In theory, the state legislature can trigger a public referendum to amend the constitution. However, although Democrats lost control of the house, they maintained a four-vote majority in the state senate. I don’t follow Iowa politics so I have no idea whether this senate is solidly pro-equality and can fend off the calls for a marriage vote. I sure hope so.

But even so, NOM’s goal was to “send a message” to judges in other states that may face the same type of retention vote. In this they seem to have succeeded.

In other bad news for Democrats, the Blues suffered big defeats at the state legislative level, losing majorities in at least 18 chambers including both the house and senate in New Hampshire, Maine, Minnesota and Wisconsin. Democrats also lost both chambers in Alabama and North Carolina, and as I mentioned, they lost the Iowa house. There are others, but the losses are worrisome, not just for redistricting but for any and all statewide gay rights (or wrongs) proposals that might emerge over the next two years in these states.

I think Democrats also lost the New York state senate, although our slim majority in that chamber did not serve us particularly well over its two-year tenure.

Interestingly, Democrats won a number of legislative chambers in the otherwise disappointing 2004 election. Those victories seemed at the time like a harbinger of the national Democratic surges of 2006 and 2008. But under the circumstances, let’s just call them coincidental.
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Obama Under the Gun

I’ve had the TV on all day, watching election analysis and Obama’s press conference. Now, however, I have a Closer rerun on which is making it hard to concentrate on news writing. Sometimes, when you have the TV on, it’s hard to shut it off even if you don’t particularly want it on. It’s like a friend who comes over and stays around even when you’d rather be alone. 

At any rate, for all my complaints about Obama’s lack of effort on gay issues, I certainly support his presidency and feel nothing but frustration on his behalf. He inherited an economy in freefall. He stopped it and started a slow but steady rise in economic growth. He stabilized job losses albeit at an unsustainable level. He saved the financial system. He saved the auto industry. He has cut taxes. He passed a health care bill that saves money and increases benefits. And he faces an electorate that cares nothing for facts and votes on the basis of a vague notion that “things aren’t good” and “government is too big.”

But before we get all sloppy, let’s point out that Obama was asked about Don’t Ask Don’t Tell during this conference, and although he repeated his support for openly gay service, he also said that it would undermine good order and morale were the policy to bounce around between the courts and Congress, leaving the Pentagon unsure of which policy is in force from day to day.

Well, you know what? Then he should have suspended the policy during the appeal of the Log Cabin Club’s lawsuit and kept it suspended.

As you know, the Log Cabin Club won a great victory in California federal court last September, and last month, U.S. District Court Judge Virginia Phillip ordered the federal government to cease enforcing Don’t Ask Don’t Tell during the appeal.

Obama’s Justice Department promptly scurried over to the Ninth Circuit, where last week, Judge Phillips’ order was stayed on a 2-1 panel decision. A different panel will now consider the appeal of Phillips’ underlying decision, a process that will take months.

Meanwhile, the lame duck Senate will debate an amendment to the defense budget that allows Obama to repeal Don’t Ask Don’t Tell on his own authority. Since the House has already passed the amendment, and will not do so again under GOP control, this is our last chance to kill the law through legislation. Obama, in turn, has pledged to undo Don’t Ask under the powers granted by the amendment following review of an unnecessary commission report on the subject that is due December 1.

Got all this? It seems as if Don’t Ask is under serious attack and will be reversed fairly soon, either by the court or via the Senate. So why not suspend the policy (under court order) in the interim?

The answer from the president is that uncertainty would prevail, which is true. But what if the Ninth Circuit upholds the law and the Senate takes no action? What then? Will the President just throw up his hands and say “sorry, I tried?” Under these circumstances, Don’t Ask would be alive and well, with no prospects for Congressional repeal.

A president who truly wanted to end the law would take advantage of Phillips’ court order and suspend the discharges for the duration of the appeal, undermining the argument that gay soldiers hurt our armed forces and creating a cohort of openly gay personnel who presumably would be protected from discharge just as the 18,000 married gay couples in California were protected by the California Supreme Court.

Win or lose, the law would be profoundly damaged. And if Obama really believes that suspending Don’t Ask for a few months would severely disrupt military operations, then why is he in favor of repeal to begin with? What’s so hard about it? You issue an order of some sort and it’s done.
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Where’s Isabella?

In other news of note, the insane Arkansas school board member Clint McCance took a star turn on Anderson Cooper and attempted to apologize for the poor choice of words he used on his Facebook page. McCance’s verbal gaffes included wishing all gay kids would commit suicide and expressing pleasure at the fatal consequences of AIDS on the gay male community. McCance, a “Christian,” also resigned over the, um, unfortunate vocabulary.

Normally I’d tee off on the idea that wishing gay kids dead was a simple case of inappropriate language, but I’m running out of space. Oh, McCance received death threats, hundreds of emails and calls, and had to send his family out of state for their safety. Awwww. Did we overreact to your error in judgment? Our bad!

Also, amazingly, the Vermont Supreme Court just issued a ruling in favor of Janet Jenkins. Who, you ask? That can’t be the same Janet Jenkins who has been pursuing a custody case against her ex-partner Lisa Miller for the last decade? Well, yes as a matter of fact!

Miller and Jenkins have been at it since 2003, when the women dissolved their civil union and began an endless battle for custody and or visitation with infant Isabella, who is now 8. Miller, a born again Christian, moved to Virginia and initiated a state-to-state confrontation that came to an end when both the Virginia and the Vermont high courts agreed that the Maple Syrup State had jurisdiction over the case.

Over subsequent years, Miller simply ignored every court order coming out of Vermont, and the family court awarded full custody to Jenkins effective January 1, 2010. Lisa promptly took Isabella and vanished, presumably leaving an appellate lawyer behind to contest the decision. Now, the Vermont justices have confirmed the ruling in Jenkins’ favor, but Lisa is still nowhere to be found. As for little Isabella, I imagine she’s a basket case by now, poor kid.

On the other hand, Isabella will have a hell of an autobiography to sell by the time she’s 21. Think of the TV and movie rights. Lifetime of course!