Don’t Ask Don’t Tell is officially over. Thank you to all LGBT service members; I wish you much happiness.
It has been reported here, here, and here, and probably elsewhere, that Joe Solmonese will shortly be stepping down as the head of the Human Rights Campaign (HRC). [Update: It is official.] For those not in the know, the HRC is the largest, most powerful, and best connected gay rights organization. It aspires to be to LGBT rights what the NAACP was to the Civil Rights Movement, although HRC is a far more inside-the-Beltway organization than the NAACP was in the 1950’s. HRC is also an extremely controversial organization within the LGBT community.
For most of the time I have been aware of HRC, the organization’s results have been tepid at best, and that is being kind. For every victory the HRC could claim, a crushing defeat followed. I suppose you could say that it has been one step forward five steps back. For example, HIV/AIDS protections were included in the Americans With Disabilities Act in 1990, but then Congress passed Don’t Ask Don’t Tell and the Defense of Marriage Act in the Clinton Administration, which was allegedly gay-friendly. And then there was the extremely painful night in November 2004 when 11 states banned either same-sex marriage or civil unions. Many of us, myself included, also blame the HRC for being practically invisible during the ballots to overturn same-sex marriage in Maine and California. Some may argue that this was outside of HRC’s scope, but I strongly disagree with that. They were highly invisible during those battles, so even from a public relations point of view, they failed (along with every LGBT-rights group.)
HRC treads a thin line because it is supposedly party-neutral, but in reality that simply is not true. The overwhelming majority of the LGBT community lies somewhere along the left-wing of the political spectrum–from moderately progressive to outright Maoist. Yes, there are some exceptions like the Log Cabiners, and the useful idiots of GOProud, but for the most part, the LGBT community is firmly liberal, and therefore firmly Democrat. With good reason too; Republicans have staunchly allied themselves with the religious right, people like James Dobson, Michele Bachmann, and Jerry Falwell. People who have more or less called for the destruction of the LGBT community, even if they don’t say it in those exact words. Therefore, HRC tends to skew Democrat. Every time HRC tries to cozy up to the Republicans (for example suggesting that they might support the privatization of Social Security if same-sex couples were included), the backlash from the LGBT community is loud and severe.
HRC is simply not very popular among the larger LGBT community, and it goes beyond endorsing the occasional Republican or conservative idea. The community, despite general political uniformity, is remarkably diverse in terms of economic, ethnic, and cultural makeup. There is actually very little about the community that is similar, the idea of a “community” is little more than an umbrella group for historical outsiders who defy society’s gender definitions. HRC has, with some justification, been repeatedly accused of being a group that caters primarily to the concerns of specific subset of that community: white, gay, economically secure men (in other words, the homosexual counterparts of the same people who have always been in charge.) HRC’s annual black tie dinner–which costs a pretty penny to attend, but gets some very powerful and prominent speakers–only reinforces this image, as did HRC’s implicit support of an Employment Non-Discrimination Act that protected sexual orientation but not gender identity. (The transgender community has had a long history of neglect from the gay rights movement.) One of HRC’s associates/competitors, the National Gay and Lesbian Task Force, attempts to be so inclusive that it doesn’t actually do anything, which could suggest HRC’s elitist strategy is the right way to proceed. On the other hand, an overwhelmingly Democratic Congress with a Democratic President could not pass even a watered-down ENDA, which shows exactly what the Democratic establishment thinks of HRC.
Nevertheless, since 2009, the gay rights movement has seen tremendous gains, and for the first time really these gains have been at the federal level as well as the state level. There have been two major pieces of pro-gay legislation (the Matthew Shepard Act and the repeal of Don’t Ask Don’t Tell), and the federal agencies have become more aggressive and proactive at protecting LGBT rights, culminating in the Justice Department’s refusal to enforce the Defense of Marriage Act. Additionally, a US-led coalition basically forced the UN, the epitome of inefficiency and homophobia, to declare gay rights to be human rights–for the little that such a declaration is worth. No doubt HRC would like to take credit for that, and it has tried. Not being privy to the Washington, DC corridors of power, who am I to deny HRC such credit?
But from where I stand, it looks like these changes happened despite the HRC not because of it. HRC appeared to drag its feet, and Solmonese especially was hesitant to criticize a Democratic President who appeared unlikely to spend any political capital on the LGBT community. The pressure, and therefore the change, actually seemed to come from grass-roots activists who were loud, angry, and unafraid to criticize (and, amazingly enough, from the Log Cabin Republicans whose lawsuit against DADT forced the President into action.) From an outsider’s perspective, it was these people who made the Democrats fear for the first time that they would alienate a key constituency. This may not be the truth, but in politics the perception is reality, and HRC appears feckless.
Whoever replaced Solmonese will have a full plate, particularly given how broken down the federal system now is. One of the major questions though that the new leader must answer is whether HRC will actually lead or whether it will continue to sit back watch the change happen.
When Don’t Ask Don’t Tell was repealed last month, any rational person would have thought that was the end of it. Almost two-thirds of the Senate voted for repeal (one of the few bipartisan-ish bills to pass the Senate in the last two years.) The vast majority of Americans wanted DADT dead. Service members, by and large either wanted DADT repealed or did not care. The intransigence of the GOP made them look petty and homophobic. John McCain became an object of national ridicule, and he will never recover from it the new image he created for himself: a vengeful bigot.
Democrats still have a majority of the Senate and the Presidency. If no pro-equality bill has a chance of passing this Congress, at least no anti-LGBT bill has any chance of passing either. And as I have pointed out before, DADT is relatively small potatoes. Trying to reinstate DADT looks petty and vindictive, not to mention severely homophobic. Gay and lesbian soldiers get wounded in combat. They die in battle. DADT did not not prevent them from joining the military, it just prevented them from being open about who they are. It was a humiliation to people who volunteered their lives for their country and deserve better.
Given all that, one would think that the DADT battle is over. And one would be wrong. Duncan Hunter, a homophobe in the House, is planning to introduce a bill to impede the repeal of DADT. Apparently about 15-20 more homophobes have signed on to the bill. Yet another homophobe in the House, this time one with actual power–Chairman of the House Armed Services Committee–is going to try and reinstate the ban. It is Joe Wilson, the idiot of “You Lie” infamy. And the homophobic former Governor of Minnesota (Tim Pawlenty) who is running for President also supports reinstating the ban. Coincidentally, one of the searches that brought some perspective reader to this blog today (much to his/her chagrin, I am sure) was “undo the dadt repeal.”
I am in the process of writing a much larger post about homophobia and how at its root is the desire to both deny and suppress the existence of homosexuality and homosexuals. It is a post that will require a lot more time, because it has thus far been very hard to write. (Keep watching this space.) The attempts to reinstate DADT, futile attempts given the way government works, are nothing more than manifest anti-gay bigotry and hatred.
This is only coming from one side of the political aisle. GOProud, a group of gay conservatives (or as Dan Savage calls them “quislings and useful idiots”), defends these people even though the conservative raison d’être has mutated into the elimination of people like GOProud members. GOProud’s only pro-gay initiative has been a repeal of DADT, and their “allies” will not support that (nor even give up after the battle is decidedly over.) GOProud should be ashamed of itself–although I suspect the organization has no shame. The head of GOProud repeatedly says to any cable news program that will talk to him, that it is easier to be gay in conservative circles than conservative in gay circles. Damn right! My homosexuality does not destroy conservatives’s day-to-day lives, no matter what they may say. Conservatives are not fighting for their existence, their visibility, and their right to lead a normal life. LGBT people are, and we are doing it every day. When conservatives run governments, they make it so that LGBT people can lose their jobs, their housing, their families, and even their right to form intimate relationships. On a national level only the courts have protected gay people from the worst of the conservative attacks. Is it any surprise that we have no tolerance for people who want to destroy us or those poseurs and lackeys who aid them?
Trying to reinstate DADT is a losing battle. Every single politicians who is participating in this charade knows it is a losing battle. Yet they are still doing it. Why? Because they are appealing to the ugliest spirit of American conservatism. The politicians want to propagate homophobia just for the sake of making the lives of gay people miserable. It will endear them to their base even if the nation as a whole is repelled. This is not about the military. Never forget, this is about hate.
Don’t get me wrong. I am extremely happy that Don’t Ask Don’t Tell was repealed. The law was a disgrace 17 years ago, and it still is. It was also extremely hypocritical: you could be gay and in the military, just not openly so.
The repeal of DADT is a sign of the growing power and visibility of the LGBT community, although apparently only when there is a vast Democratic majority. President Obama has been far more supportive of the LGBT community than any previous President, particularly through Executive Orders and administrative action. The Health and Human Services Department declared that all hospitals that get federal funding (most of them) may not discriminate against same-sex partners. This is huge and hugely undervalued, especially by those who focus only on legislative (and judicially-imposed) change.
However, therein lies the conundrum. Because the LGBT community made some impressive gains on the legislative and executive levels of government, I fear that this may adversely affect the way that the judiciary deals with LGBT civil rights claims. The LGBT community still needs a judicial safeguard. Legislative majorities change. Presidents come from different parties. It may be difficult to undo the gains that the LGBT community has made over the past two years, but it is not impossible, particularly at the executive level. When the judiciary declares that a group is protected by the Constitution, that ruling is, for all intents and purposes, set in stone. Without the protections of the courts, I worry about the future of gay rights, especially in the immediate future. The repeal of DADT and the Matthew Shepard Hate Crimes bill from last year were important because there had never been significant federal level victories before. On the other hand, in the grand scheme of things, these victories are fairly limited.
Courts have been historically slow to get in front of social trends. However, starting in New Deal era the courts, particularly the Supreme Court started to change its position with regard to civil liberties. This culminated in the Warren Court’s revolution of civil rights, of criminal rights, and of the role of the judiciary itself. For once the courts were out in front of the other branches of the government. This was however, hugely controversial, and the fallout (particularly post-Roe v. Wade) is still being dealt with.
II. A Very Brief History of Civil Rights Law
To understand why the courts are important, one must first understand the source of the courts’ civil rights law authority: the 14th Amendment of the United States Constitution. After the Civil War, Congress amended the Constitution to end slavery and bring about a measure of racial equality. The 13th Amendment ended slavery. The 15th Amendment guaranteed to black men the right to vote (the amendment that brought about women’s suffrage only passed in 1920.) The 14th Amendment was something different though, a mini-constitution unto itself. It is a very long amendment in five parts, but the most important section is the first which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The three clauses of second sentence are the wellspring of all civil rights law.
The 14th Amendment was adopted in 1868. Almost immediately afterwards the Supreme Court tried to nullify the protections of the 14h Amendment in a consolidated group of cases called The Slaughter-House Cases. The legal analysis of The Slaughter-House Cases is very complicated, and you do not need to worry about it unless you are taking a Constitutional Law class. The important takeaway is that for all intents and purposes, the first clause the “Privileges and Immunities Clause” was interpreted into virtual non-existence. The Slaughter-House Cases was a disaster of an opinion, but in the ensuing decades, the Court continued to make a mess of both doctrine and plain English. The Privileges and Immunities Clause was intended to be a panacea against oppressive state laws designed to strip former slaves of nebulous rights that the Framers of the Amendment could not envision. Eventually, the Supreme Court was forced to reinvent the Privileges and Immunities Clause by reading its protections into the second clause of the 14th Amendment, the “Due Process Clause.”
Due process of law is exactly what you think it is: fair judicial proceedings. You cannot lose your life or your liberty (freedom from imprisonment) in a criminal case or your property in a criminal or civil case without first going through a fair trial. In the context of the 14th Amendment, the Due Process Clause was a direct repudiation of the South’s treatment of blacks.
Now you have to understand that before the 14th Amendment, the Bill of Rights limited only the federal government because of the fear of a central authority. It turned out that the states could be even more brutal, so the 14th Amendment applied only to the states. It gave a new avenue for federal oversight. Before the 14th Amendment, a state criminal conviction could not be appealed to federal court because it did not touch federal law. The Due Process Clause of the 14th Amendment theoretically invited the federal courts in as watchmen over the Southern judicial system (for decades this was more theory than fact.)
The Due Process clause specifically protects from an impermissible deprivation of life, liberty, and property. Liberty however, is a tricky word, because it can mean so many things. In the context of the Amendment, it meant freedom from imprisonment. However, the Supreme Court decided it meant more than that; it meant fundamental fairness. Now the Supreme Court gave itself the power to examine more than judicial proceedings. It could examine every law that every state enacted and overrule the law if fundamental fairness was impermissibly abridged. This is called “substantive due process,” and it is very controversial, because it is a power that the Supreme Court created for itself.
The Supreme Court created substantive due process well before the Civil War, but the 14th Amendment gave it a perceived legitimacy and a wider reach. Starting at the end of the 1800’s and going through the New Deal, the Supreme Court decided that the most important part of substantive due process was to prevent government from interfering with private parties’ freedom to make contracts. As a result, the Supreme Court struck down a wide variety of economic regulations, most infamously a series of worker protection laws. This is called Lochner era jurisprudence after the most infamous case of that time, Lochner v. New York. The Court only allowed a handful of laws to pass through, and only in the most extreme circumstances. What the court disgracefully ignored was that “freedom to contract” was freedom for the employer only. The workers had almost no power, and the poorer they were, the harder it was to find a job. Employers took advantage of their strength and forced their employees to work long hours for little pay in often dangerous conditions (if this sounds familiar it is because undocumented workers are still dealing with this.)
During the early New Deal days, the Court’s willingness to strike down economic and labor regulation laws led to a showdown between the Court and President Roosevelt. Roosevelt attempted to “pack the Court” by adding so many of his hand-picked judges to the Supreme Court that they would outnumber the conservative majority. Roosevelt lost that battle, but won the war. First, the Court ‘s swing Justice (Owen J. Roberts) began siding with the Court’s liberal wing to uphold the New Deal laws. Following that, the old Justices began retiring (or dying), and Roosevelt appointed his favorites to the Court. By the time Roosevelt died, he had appointed the Chief Justice and seven of the eight Associate Justices.
In 1938, as the Court approved the New Deal legislation, an undistinguished case about a federal milk law called United States v. Carolene Products Co. came before the Court. The facts of the case are completely unimportant, but the Justice who wrote the opinion (Harlan Fiske Stone) added the most significant footnote in constitutional law. The fourth footnote of the opinion stated that the Court would presume an economic regulation was constitutional and the opposing party had to prove otherwise. However, when certain rights were affected, such as those listed in the Bill of Rights, then the Court would not be that lenient. And when the law in question prejudiced against “discrete and insular minorities” who cannot turn to the political process for justice, well the Court was not going to say at that time. In this footnote (known universally as “Footnote Four”) the Supreme Court sent out a very strong signal to the federal and state governments: “We’ll give you the benefit of the doubt for your economic laws, but when personal and civil rights are impinged, particularly with historically oppressed minorities, you better have a damn good reason for doing so.”
At this point, I need to stop the story to introduce the third clause of the 14th Amendment, the “Equal Protection Clause.” From reading the text, it seems pretty self-explanatory. And you would think the Supreme Court would get it right. But the Court had a pretty mixed record. Once in a blue moon they got it right (striking down laws that prohibited blacks from sitting on juries or that discriminated against Chinese laundrymen in San Francisco.) However, as with the Privileges and Immunities Clause, the Court did enough damage early on so as to negate the the Equal Protection Clause–most infamously in Plessy v. Ferguson, the railway car segregation case that established the insidious doctrine of “separate but equal” that would eventually be overturned by Brown v. Board of Education.
Footnote Four signaled that the Court was finally willing rethink the horrific damage it had done to the 14th Amendment. Footnote Four also sowed the seeds of what would become strict scrutiny, the jaundiced eye that the Court uses when confronted with a law that either discriminates against a group or impinges upon a fundamental right. But this being the Supreme Court, it took some time before they finally got it right. The first time the Court actually used strict scrutiny, they got it completely wrong–in the Japanese internment case Korematsu v. United States. When given the chance, the Court, by this time almost entirely made up of Roosevelt appointees, did not challenge the President’s authority and allowed the government to proceed with horrible, horrible racism under the guise of national security. Korematsu is one of the Court’s worst decisions–an equal of Dred Scott and Plessy.
The Court effected the promise of Footnote Four with the desegregation cases that led to and included Brown v. Board of Education. Following the success of Brown, other disenfranchised groups took their cases to the Supreme Court but with mixed results as the post-Warren Court became more conservative. Race and national origin were classes that the Court protected with strict scrutiny. Gender was also protected but not to the same extent. Sexual orientation? That is an ongoing question. The Supreme Court has managed to dodge the question. Rather than repeat myself, I would refer you to my earlier post about gay rights and the Supreme Court.
III. Putting This Together
So why am I worried that DADT repeal has harmed the LGBT community in federal court? It goes back to Footnote Four which outlined who gets protected. The text in question is as follows:
Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
What is a discrete and insular minority? The Supreme Court seems to imply that there are certain characteristics: race, nationality, and religion are specifically mentioned. With the exception of religion (protected by the 1st Amendment, and therefore not germane to a 14th Amendment discussion) the distinguishing characteristics are immutable from birth. Immutability is not enough though; the group in question also needs to be shut out of the political process.
And there is the problem. Are gays and lesbians a discrete and insular minority? Are they shut out of the political process?
With regard to the first part, the answer hinges on whether sexual orientation (and gender identity) is immutable. While any LGBT person will tell you that he or she was born that way, there is a sizable group who refuse to believe that, science be damned (the Prop 8 lawyers brought in scientific evidence to their case specifically to address the immutability issue.) More relevant though is whether a majority of Justices on the Supreme Court believe that sexual orientation is innate. Reading judicial tea leaves is not an exact science, but last term one Justice appeared to give an answer, and it is not the one you think.
Justice Ruth Bader Ginsburg, writing for the majority in a case called Christian Legal Society v. Martinez wrote the following: “Our decisions have declined to distinguish between status [homosexuals] and conduct [homosexual sex acts] in this context.” This one statement was a bombshell, and it did not go unnoticed.
A little background: Hastings Law School denied the Christian Legal Society (“CLS”) recognition for violating the school’s anti-discrimination policy by not allowing gays to join. CLS argued that anyone could join so long as they did not partake in certain proscribed acts (including gay sex) and therefore their rules were not discriminatory. Justice Ginsburg, writing for the majority, found for the law school. In the sentence I quoted above she is essentially saying that gay sexuality is a fundamental part of being gay, therefore proscribing gay sex as CLS did was really a form of anti-gay discrimination (and the school could permissibly take action.)
A majority of Justices joined Justice Ginsburg’s opinion including Anthony Kennedy, author of Lawrence v. Texas, and unpredictable swing vote. One Justice (John Paul Stevens) has left the Court since then and was replaced by Elena Kagan, whose record is, to this point unknown. I am not an experienced Court-watcher, but I am a lawyer. Even though this case did not touch on the constitutional rights of homosexuals, at its core it is a gay rights battle, and it gave an indication of at least one Justice’s thoughts. She sees homosexuals as a distinct group (a discrete and insular minority) rather than a subset of the larger group who are defined by their actions.
So this is good, right? Well… maybe. The fact that Justice Ginsburg commanded the majority (5-4) is a very thing good. This does not however, mean that the entire majority agrees with that statement outside of the context of the case (assuming Justice Kagan would have voted the way Justice Stevens did.) I want to believe that every Justice who signed onto the majority opinion believes in Justice Ginsburg’s statement, but there is no way to be sure until the next case comes along, and one that directly impacts LGBT rights. Again (and this is very important), this case was not about the fundamental rights or the constitutional equality of gays and lesbians. CLS brought the case against the law school. While homosexuality was at the center of the conflict, there was no federal question involving homosexuals.*
So what was the purpose of Justice Ginsburg’s statement if the case was not about LGBT rights? Maybe she thought that the sentence was essential to her reasoning, but there is another explanation that has been put forward. Sometimes a Justice will throw little “time bombs” in his or her opinion. These time bombs are statements that lay the groundwork for a future case, that the Justice sees coming before the Court in the near future. That next case will be either the DOMA case from New England or the Prop 8 case from California. What happens next is anyone’s guess. If Justice Ginsburg did set a time bomb (which she probably did), it reasons that her disposition toward the gay litigants in both cases will be favorable.
Assuming the Court finds that homosexuals are a discreet and insular minority, there is another Footnote Four obstacle. This is where DADT repeal is a potentially huge stumbling block. Footnote Four specifically lists as an essential requirement to heightened scrutiny the inability to win fundamental fairness from the political process. The only time a Supreme Court majority came close to finding that in the LGBT context was in Romer v. Evans, when the Court decided against a Colorado constitutional amendment because it effectively shut gays and lesbians out of the political process.
But now, the LGBT community is very much involved in the political process. Several states have enacted marriage laws or civil union laws without court intervention. For the first time there have been federal law victories: the Matthew Shepard Hate Crimes Bill and the repeal of DADT. This would imply to some that the LGBT community is an active part of the political process, not shut out of it.
That however, is not the whole story. DADT repeal should have been an easy piece of legislation, yet it barely passed, and only because of last minute maneuvering. The hate crimes bill was buried in a defense spending bill that, at the time, the Senate Republicans were afraid to filibuster. Both victories are also fairly limited in scope. Sweeping community-wide victories like ENDA and a repeal of DOMA are impossible for at the next two years but probably more like two decades. Marriage laws in Maine and California were overturned by popular referendum, New Hampshire’s marriage law an Wisconsin’s domestic partnership rights law may be repealed by the new legislatures, and three of the Iowa Justices who found in favor of same-sex marriage in that state were voted out of office just for that reason. Losing all those battles shows a lack of political power. The tide is still very much against LGBT people. We still need the protection of the courts.
The question is when the next big judicial case comes before the Supreme Court, how will Justices on the fence view the minority status of gay people. Thus far the Court has dodged the Equal Protection question. Rational review is not enough, despite what President Obama thinks (and his conclusions about the Supreme Court’s LGBT-related jurisprudence are shockingly incorrect.) Nevertheless, there are two definite votes (and probably four) on the Supreme Court who would say that the LGBT community does not merit 14th Amendment protections. I am sure they would point to DADT’s repeal and say that is proof that the political system works.
* The case was really about the rights of a school to set a blanket policy versus the 1st Amendment rights of CLS. While the Court found for the law school in the abstract, the actual determination of the case will depend on whether Hastings applied its blanket policy equally or singled out CLS specifically. That is Round Two, although it is no longer relevant for this post.
Music I Listened to While Writing This Post: Ella Fitzgerald “Bewitched, Bothered, and Bewildered”; Frédéric Chopin “Waltz No. 11 in G-Flat Major, Op. 70, No. 1”;
After 17 years, the horrible, bigoted policy known as Don’t Ask Don’t Tell is over. Repealed. Kaput. Consigned to the trashcan of history.
I am very happy for the covertly gay and lesbian soldiers who now can be open about their private lives without fear of reprisal. I am happy for all those brave men and women who were wrongfully discharged because of DADT and who are either morally redeemed or can (if they choose) return to serve. I am happy that, for once, a law that benefits the LGBT community was passed by the United States Congress.
Having said all that, DADT only affects a very small subsection of the LGBT community. Repeal of DADT is a symbolic victory, a political victory and a moral victory. It is also however, in the grand scheme of things, a very small victory. DADT should have been a slam dunk, but it barely squeaked by (all credit to President Obama though who kept his promise to repeal DADT on his watch.)
If it was so difficult to pass a repeal of DADT with possibly the LGBT-friendliest Congress ever, then how much harder is it going to be to get other legislation passed with a much hostile Congress? Other legislation that will effect a greater number of people such as: The Employment Non Discrimination Act, The Student Non Discrimination Act, a repeal of the Defense of Marriage Act (and full marriage equality for the entire country), pension and Social Security benefits reform, health insurance benefits for partners of gay federal workers, immigration reform that treats homosexual partners like heterosexual partners, legislation preventing discrimination in adoption rights, and transgender-friendly laws in any field. I am sure I am forgetting other important and necessary legislation.
The Arc of the Moral Universe is long indeed.