This Critical Moment

Published in: September-October 2008 issue.


FROM THE STANDPOINT of GLBT rights, it now seems likely—although by no means certain—that 2008 will be the year in which the political system caught up to the country. I do not always subscribe to the view that the public is ahead of the politicians in terms of enlightenment, but on the question of protecting people against discrimination based on sexual orientation or gender identity, the voters have been ahead of the politicians.

The clearest example of this tendency of elected officials to impute more prejudice to the electorate than actually exists came in the analysis that grew to be accepted after the elections of 2002 and 2004. Perceived wisdom among many political experts was that Democrats had paid a high price because of the party’s advocacy of GLBT rights, among other social issues. Social conservatism had trumped economic liberalism, the pundits concluded, and too many Democrats were ready to buy into that conclusion. The Republicans not only believed this, they acted on it—to their ultimate disadvantage.

The first manifestation of the Republicans’ view that the social issues were the way to further entrench themselves came as one of the greatest political—and moral—miscalculations in recent history: the Terri Schiavo case. Republicans seized on the chance to enact legislation overruling the decision of Terri Schiavo’s husband that life in any meaningful sense had long since left her, as well as the opinion of the entire court system of Florida that had found his decision to be legally unassailable. And while it was the Republicans who pressed the advantage, a number of Democrats feared that the legislation overturning the Florida court’s acceptance of Michael Schiavo’s decision was too popular to resist. The U.S. Senate passed the bill on one day’s deliberation without a roll call. When it came to the House, several of us opposed it, and, while I think we won the debate, we lost the vote overwhelmingly: not only did 97% of the Republicans vote for the bill, we got a bare majority of Democrats against it—53 to 47.

Of course the public reaction was exactly the opposite of what most politicians thought it would be, and the outrage at this political interference with the question of when to accept that life had ended was both broad and strong. It turned out that most Americans were able to draw a very straightforward conclusion: if you think the decision about when to accept the end of life should not be made politically, you should not ask 536 politicians to make it.

But while the Republicans were forced to accept that the Schiavo case had been unpopular, they continued to believe that gay baiting was a route to political success, and forced several votes in the last Congress on the amendment to ban gay marriage. It has not always been understood how radical this amendment was. While the President sometimes said it was to keep judges from making the decision about whether same-sex marriage should be allowed, in fact it was so worded as to prevent any authority—including a referendum in a particular state—from allowing people of the same sex to marry, and it would have retroactively canceled all of the same-sex marriages in Massachusetts. Once again, the political perception was that the Republicans were on to something, and while a handful of Republicans and a large number of Democrats stood firm to defeat the amendment, many assumed that this would redound to the Republicans’ advantage in the 2006 elections.

In fact, of the more than 200 members of the Congress who voted against this constitutional amendment to ban same-sex marriage, only one was defeated by someone who was an advocate of the amendment—and that was in a Republican primary in Michigan. No Democratic member of the House or Senate who voted against the amendment was defeated. On the other hand, dozens of congressmen who had voted for the constitutional amendment—all Republicans—lost to candidates who were against it. The fact that the Democrats won so heavily in both the House and the Senate in the 2006 elections despite the Republicans’ intensified use of social issues, with GLBT rights prominent among them, allowed us to make the case that it had been the national security issues that had led to Republican victories in 2002 and 2004, and that advocates of GLBT rights would not pay a price at the polls.

This is not the first time that this pattern has occurred. In the 1980’s, when AIDS came to the forefront as an issue, many of my colleagues—mostly Democrats—who voted against the homophobic and even fatal amendments offered by bigots like Senator Jesse Helms and Congressman William Dannemeyer expected to pay an electoral price. None did. To be sure, many members voted against the homophobic amendments reluctantly, but understood that the stakes were too high for normal political calculations to apply. To their relief they found that they were not suffering at the polls because of these votes.

This pattern of politicians being more afraid of voting to support GLBT rights than is warranted has been a constant one almost since the days of Stonewall. In my view, this is because of the enormous service we have performed for our fellow and sister citizens by the process of being honest about who we are. As Americans have learned that some of their relatives, customers, teachers, students, teammates, doctors, patients, repair people, and friends are gay or lesbian, they’ve realized that they’re not personally homophobic; they just thought that they were supposed to be. Once they see that others don’t manifest this prejudice, they feel no great need to indulge it themselves. This is especially true of younger generations of Americans. That’s why some of the military officials who supported “Don’t ask, don’t tell” in 1993 have changed their position. They acknowledge that any fears they might have had about negative reaction from young people towards gay or lesbian colleagues fifteen years ago no longer hold much force because of the change in attitudes among twenty-year-olds.

THERE ARE three factors that have slowed the ability of the political system to adapt to these changes in public attitude and enact the appropriate legislation. They are: cultural lag, the risk aversion of politicians, and the rightward movement of the Republican Party.

The first of these, cultural lag, is diminishing as an obstacle to our winning legal equality. As prejudice based on sexual orientation and gender identity diminishes in our society, that communicates itself to the politicians, but not as rapidly as we would like, so there’s a lag in how quickly the laws are changed. No specific political action is necessary for us to further this favorable trend, and continuing to live our lives openly has the greatest impact here.

The other two factors are within our ability to influence by thoughtful and disciplined political activity. Risk aversion led politicians who appreciated the justice of our cause to withhold their support through the 70’s and 80’s, because they felt that it would be politically damaging to vote with us. The most effective way to counter this force is to make risk-averse politicians aware that there are greater risks in voting to perpetuate discrimination than there are in voting to end it. To the extent that GLBT people and our allies speak out to their elected representatives on behalf of our rights, the risk calculus shifts in our favor. This obviously does not work everywhere in the country, but it has had a major impact.

Over the years I’ve had an increasing number of colleagues tell me that they’re concerned about GLBT voters and seek my advice on how best to reach our community. When I first came out, in 1987, I was often asked to go to the aid of colleagues seeking to bolster their support among GLBT voters. In those early years, if I was asked to appear with a colleague, it was almost always at a venue within ten miles of an ocean, where liberal politics has always been strong. Today, the requests I get know no geographical bounds. It is not the case that I’m in enormous demand in the deep South, but in much of the rest of the country my colleagues understand the importance of appealing to GLBT voters. I get more requests to appear at forums aimed at doing this than I can handle. Of course, the risk averse are also moved in our direction by the electoral results I have cited. The fact that the Democrats, with some grumbling, essentially stood by the pro-GLBT position in 2005 and 2006 and still won very big victories in the 2006 Congressional elections was especially helpful.

The third and most important obstacle we’ve encountered in our effort to win public policy acceptance is the right-wing takeover of the Republican Party. As I said, I think it is now clear that the Republicans did not win in previous elections because they were gay-baiters. They won for other reasons—essentially national security—but the perception did empower their gay-baiting. In general, when society as a whole moves in a certain direction on a set of issues, public policy also moves in that direction. But the increasingly tight grip the most socially conservative Republicans have on their party has meant that on issues of central importance to this very right-wing constituency, the Republican Party has moved in the opposite direction from the rest of the country. We’ve seen three trend lines regarding GLBT rights in our country since the 80’s. The country as a whole has become much less prejudiced; the Democrats have moved away from prejudice at a rate even greater than the country; and the Republicans have moved far less than the country as a whole in the unprejudiced direction. In political terms, as the right wing has increased its strength, Republican opposition has in some ways strengthened.

This brings us to the 2008 election. The position of the two parties at nearly all levels on GLBT rights is one of the starkest differences between them.

When Nancy Pelosi became Speaker designate, she promised Tammy Baldwin and me that she would act on the major legislative pieces protecting us against prejudice, and she followed through with the House passage of a transgender-inclusive hate crimes bill and with an Employment Nondiscrimination Act (ENDA), though the votes were not there to include the transgender piece in ENDA at that time. The narrowness of the Democratic majority in the Senate—51 to 49—and a complication involving the effort to add the hate crimes bill to an Iraq war funding bill kept the Senate from acting. Senator Kennedy’s illness added to these difficulties, given his central role as an advocate of fairness. Additionally, the fact that anything we did was certain to be vetoed by George Bush, who continues to be in thrall to the far right on these issues, removed some of the incentive for the Senate to act on ENDA.

But the votes in the House showed that we are strongly in the majority on many of our issues, and recent trends—including comments on “Don’t ask, don’t tell”—have further demonstrated that we’re poised to win significant victories, reflecting the public opinion that has outgrown the prejudice that blighted our lives for so long.

The question, then, is what will happen in the 2008 election. If Barack Obama becomes president, the Democrats pick up four or more Senate seats, and we expand our majority in the House, it is clear that there will be legislation enacted into law advancing the rights of GLBT people. If John McCain becomes president, none of these will be signed into law, according to McCain’s own statements and record of votes against us, and if the Democrats do not increase their majority in the Senate, that may be moot because it will be very difficult to get bills to the President’s desk.

We know some things. First, the country has clearly moved away from prejudice, and majorities exist to support legislation providing fair treatment against prejudice. The argument that the electoral consequences of supporting such legislation are negative has been repudiated by the results of 2006. While there’s an unfortunately small number of Republican Congresspersons who are prepared to stay with us—on the key ENDA vote only nine Republicans voted against a motion to recommit, i.e. kill the bill—well over ninety percent of the Democrats voted with us. Note that the dispute among Democrats over whether to include transgender people did not come into play at this point, and all of the Democrats who support GLBT rights voted with us.

It is not reasonable to argue that the Democrats will win largely or even in substantial part because they’re supportive of legislation to provide fairness to the GLBT community. What is clear is that if the Democrats win, because of unhappiness with the war in Iraq, concerns over the economy, and other factors, GLBT rights will be one of the beneficiaries. One of the changes clearly will be the enactment into law—for the first time at the federal level—of protections for GLBT people against prejudice and disability of various sorts. And, of course, with regard to the presidency, we have the all-important question of the Supreme Court. People should reread the virulently homophobic dissent of Justice Antonin Scalia in the Lawrence v. Texas sodomy case. He almost certainly has three allies in his objection to the decision, and the odds are high that the next president will appoint at least one Supreme Court justice and probably more.

If GLBT people and our friends go to the polls in appropriate numbers and vote for our own clear interests, it is overwhelmingly likely that we will be celebrating in 2009 and 2110 the passage for the first time in American history of legislation that recognizes our right to be protected against prejudice. The country is clearly ready for that in terms of its attitude. The question is whether we are prepared as a community to act vigorously and intelligently in our own political self-defense.