National Review Online is calling on the Supreme Court to uphold states' rights to ban same-sex marriage because, in its view, recognizing marriage equality would redefine the institution to favor lesser "emotional unions" and adopted children over married procreation.
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that could finally allow same-sex couples to marry in every state or, at minimum, require states that ban same-sex marriage to recognize the legality of same-sex marriages performed legally elsewhere. During arguments, Mary Bonauto, the lawyer representing the same-sex couples challenging state marriage bans, asserted that such bans "contravene the basic constitutional commitment to equal dignity" and that "the abiding purpose of the 14th Amendment is to preclude relegating classes of persons to second-tier status."
Several justices were receptive to Bonauto's argument, including conservative Justice Anthony Kennedy, who is widely expected to cast the deciding vote in the case.
But NRO is less convinced. In an April 28 editorial, the editors called on the justices to "refrain from taking [the] reckless step" of recognizing that the fundamental right to marry should be extended to gay couples. The editorial also rejected the idea that gay couples who can't get married are routinely denied the same dignity that "traditional" married couples enjoy, and argued that the "older view" of marriage -- which prioritizes "the type of sexual behavior that often gives rise to children" -- is "rationally superior to the newer one":
An older view of marriage has steadily been losing ground to a newer one, and that process began long before the debate over same-sex couples. On the older understanding, society and, to a lesser extent, the government needed to shape sexual behavior -- specifically, the type of sexual behavior that often gives rise to children -- to promote the well-being of those children. On the newer understanding, marriage is primarily an emotional union of adults with an incidental connection to procreation and children.
We think the older view is not only unbigoted, but rationally superior to the newer one. Supporters of the older view have often said that it offers a sure ground for resisting polygamy while the newer one does not. But perhaps the more telling point is that the newer view does not offer any strong rationale for having a social institution of marriage in the first place, let alone a government-backed one.
In the lead up to next week's landmark Supreme Court hearings on the constitutionality of marriage equality, Fox News' Bill O'Reilly is amplifying a fringe -- and absurd -- right-wing campaign calling on Justices Ruth Bader Ginsburg and Elana Kagan to recuse themselves because they have officiated same-sex marriages. But these actions, along with Ginsburg's comments noting the American public is rapidly turning against anti-LGBT discrimination, are not grounds for legitimate recusal.
In January, the American Family Association (AFA) -- a notorious anti-gay hate group -- announced a campaign titled, "Kagan and Ginsburg: Recuse Yourselves!" In a statement, the AFA, best known for its infamous anti-gay spokesman Bryan Fischer, called on the justices to recuse themselves ahead of next week's oral arguments before the Supreme Court on same-sex marriage. The group argued that Kagan and Ginsburg "should recuse themselves from making any same-sex marriage decisions because they have both conducted same-sex marriage ceremonies."
On April 20, Fox legal correspondent Shannon Bream twice reported on "public calls, petition drives, and appeals directly to Justices Ginsburg and Kagan to recuse themselves from hearing next week's case on same-sex marriage." During Fox News' Special Report, Bream pointed to the justices' past history officiating same-sex weddings and a February 2015 interview during which Ginsburg said that it "would not take a large adjustment" for Americans to get used to nationwide marriage equality. On April 21, Fox News' Bill O'Reilly picked up the argument in his "Is It Legal" segment on The O'Reilly Factor, declaring "these ladies have to recuse themselves," because "[t]he Supreme Court is supposed to be an incorruptible institution, but reports say Judge Ruth Bader Ginsburg has herself performed three gay marriages, and Justice Elena Kagan, one":
Right-wing media have falsely suggested that the civil rights protections in Indiana's "religious freedom" bill force business owners to endorse messages that they share serious ideological disagreements with. But a recently-decided discrimination case in Colorado debunked this argument, differentiating between discrimination on the basis of ideology and discrimination on the basis of membership in a protected class.
On April 2, Indiana Gov. Mike Pence (R) signed an anti-discrimination amendment to his state's controversial Religious Freedom Restoration Act (RFRA) after facing widespread criticism due to the law's potential to authorize anti-LGBT discrimination. To address that danger, the amended law explicitly prohibits individuals and business owners from invoking RFRA to deny services on the basis of sexual orientation or gender identity.
Right-wing media were quick to criticize Pence, arguing that the amendment "gutted" the state's RFRA and claiming that the revision would "force" the devout to violate their religious beliefs by holding them accountable to generally applicable civil rights protections. A number of conservative media outlets like The Wall Street Journal took this argument further, falsely claiming that forcing religious business owners to abide by anti-discrimination laws would also "compel" them to serve customers with "politically unacceptable thoughts":
For that matter, should a Native American printer be legally compelled to make posters with an Indian mascot that he finds offensive, or an environmentalist contractor to work a shift at a coal-fired power plant? Fining or otherwise coercing any small number of private citizens -- who aren't doing anyone real harm but entertain politically unacceptable thoughts -- is thuggish stuff.
But a recent "religious discrimination" case from Colorado illustrates how this hypothetical betrays a fundamental inability to understand that the RFRA debate was over discrimination against gay people, not gay "thoughts."
Right-wing media are continuing to defend Indiana's newly-enacted Religious Freedom Restoration Act (RFRA) and dismissing concerns that the law could provide cover for religious individuals or business owners intent on discriminating against LGBT customers. In fact, RFRA has been used as a defense against discrimination claims in the past, New Mexico's version was used against a gay couple just recently, and supporters of these expanded forms of RFRA have explicitly pointed to anti-gay sentiment as their intent.
Since the passage of Indiana's RFRA, right-wing media have erroneously claimed that criticism of the law is overblown, because it does nothing more than mirror the federal version of RFRA and RFRAs in other states. But Indiana's law is more expansive than other versions because it provides a legal defense to both private individuals and for-profit businesses in lawsuits even where the government is not a party, and unlike several other states who have passed RFRAs, Indiana lacks a statewide law that protects LGBT residents from discrimination.
Conservative media figures like National Review's Rich Lowry have also argued that Indiana's RFRA will not be used as a license to discriminate against LGBT customers because if RFRA laws "were the enablers of discrimination they are portrayed as, much of the country would already have sunk into a dystopian pit of hatred." Right-wing radio host Hugh Hewitt also downplayed the potential legal ramifications of Indiana's law, claiming on his show that the federal version of RFRA has "been the law in the District of Columbia for 22 years [and] I do not know of a single incident" of the law being used to discriminate against gay people. He did not address the fact that it is the newer state versions that have sparked the current outrage.
On the March 31 edition of Fox News' Fox & Friends, co-host Steve Doocy made a similar argument in an attempt to pretend fears of the law's discriminatory effects were baseless, claiming that Indiana's RFRA is not "anti-gay" because it has "never not once" been used as a legal defense by religious business owners accused of anti-LGBT discrimination:
From the January 9 edition of CNN's Starting Point:
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From the December 14 edition of CNN's Early Start:
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From the May 3 edition of MSNBC's Hardball with Chris Matthews:
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Mark Krikorian was surprised to learn on Thursday that labor unions are lobbying in support of marriage equality in Maryland. In his National Review Online post, he wrote that the reason it "seems improbable is that until recently, American organized labor, while misguided on many economic questions, was deeply traditionalist." He concluded that unions are now supporting marriage equality only because "the unions no longer represent many workers."
But what Krikorian has apparently failed to understand is that marriage equality has many economic benefits. The Williams Institute of the UCLA School of Law argues that marriage equality creates jobs. It also estimated that in the first year same-sex marriage was legalized in six states, wedding spending from those marriages totaled at least $249 million:
Forbes estimated in 2004 that if laws were changed to legalize same-sex marriage in the entire United States, the wedding industry would see "a short-term gain of prodigious proportions" and eventually provide a nearly $17 billion boost to the economy over time. In another estimate, San Francisco's chief economist stated in 2010 that the "annual wedding-related spending would rise by $35 million in San Francisco, with an additional $2.7 million in hotel spending, if same-sex marriage were legal."
Business groups and leaders have also expressed support for marriage equality due to its economic benefits. The executive director of the Mount Washington Valley Chamber of Commerce in New Hampshire praised the economic potential of civil unions in December 2007. The San Francisco Chamber of Commerce argued that marriage equality in California "would improve the business climate" and would enhance "the ability of California businesses to compete nationwide for top talent."
In April 2011, top New York business leaders urged the state to adopt marriage equality "to remain competitive" and "attract top talent." A few months later, more than 75 business leaders in North Carolina signed an open letter opposing a state constitutional amendment banning same-sex marriages "because of the significant harm it will cause our state's pro-business environment, its major employers, and efforts to spur job-creation in North Carolina."
The lack of same-sex marriage recognition has been shown to be costly to workers as well. As CNNMoney reported last week, same-sex couples "are paying as much as $6,000 a year in extra taxes because the federal government doesn't recognize gay marriage."
In 2011 Fox News' Dr. Keith Ablow brought a toxic mix of homophobia and pseudoscientific anti-LGBT talking points to new lows. The "Fox News Medical A-Team" member has been a prolific source of anti-LGBT misinformation, disguising his animosity toward gay, lesbian and transgender people as expert commentary on human sexuality. His bigoted rants against J. Crew, Dancing with the Stars, and the Girl Scouts have earned widespread criticism and mockery, eventually causing him to resign from the American Psychiatric Association. For his consistent promotion of known falsehoods and shirking of established medical opinions on LGBT issues, Ablow has earned the title of LGBT Misinformer of the Year.
At 12:01 a.m., the military's Don't Ask, Don't Tell (DADT) policy will expire under the bill President Obama signed in December, allowing gay and lesbian servicemembers to serve openly in the armed forces.
As required under that legislation, President Obama, Defense Secretary Leon Panetta, and Chairman of the Joint Chiefs Adm. Mike Mullen all certified in July that the repeal would not adversely effect military readiness or unit cohesion.
During the extensive debate over whether DADT would be repealed, Media Matters identified and debunked several falsehoods about the policy:
Credible media outlets should see to that as the discriminatory Don't Ask, Don't Tell policy expires, so do these myths.
From the January 6 edition of The Advocate:
Ironically, what many of the president's key advisers had originally tagged as a stumbling block has now become his one pristine win for the progressive base. Tax cuts went to everyone, including the richest segment of our country, in a move that some believe will establish the rates as a permanent fixture that shreds the middle-class fabric of this nation. The opportunity that was health care reform was lost to the lack of a public option. Wall Street reform was a sham in the eyes of many liberals. Key environmental legislation and immigration reform never got off the ground, though the heroic efforts of youth activists put the DREAM Act in play.
In fact, repealing the gay ban marks the one place where Obama didn't compromise the ideals of his progressive base. The question now is whether the lessons of the repeal battle will dawn a new day in the national fight for equality.
Will politicians and especially President Obama and his aides begin to fixate on the upsides of making strides toward equality for all LGBT Americans instead of obsessing about the downsides of battles lost years ago? In history we are taught that nations often prosecute the last war they were in rather than fighting the battle that's unfolding before their very eyes. But great leaders -- those who change the course of history -- are willing to turn away from the tangibles of the past to keep their eyes trained on the potential of an amorphous but illimitable future.
Much is left to be done. Transgender individuals especially are at risk of chronic unemployment without a means of recourse for wrongful termination. Gay binational couples are still torn apart by the cruelty of a system that fails to view their families as legal entities. And simply put, our nation's laws continue to value the humanity of certain citizens and debase that of others according to the expressions of their love. [The Advocate, 1/6/11]
Eleveld is departing The Advocate to become editor of Equality Matters, Media Matters' new war room for LGBT equality.
From the December 22 broadcast of MSNBC's live coverage of the DADT repeal:
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The following is a column by Richard Socarides, president of Equality Matters.
As we prepare to launch EqualityMatters.org, Congress has just approved a bill repealing "don't ask, don't tell." This highly significant victory is an important milestone in our effort to secure full equality. No one said it better than our president, who deserves substantial credit for helping to bring about this day:
"It is time to close this chapter in our history," President Obama said in a statement. "It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed."
The president is making a crucial connection here. This victory not only means that gays and lesbians will be allowed to serve with the dignity they deserve, but that America is beginning to recognize that our struggle is for civil rights. America is beginning to understand that gay rights are human rights.
In order to win the "don't ask" effort, we needed not only to convince our friends that now was the time to act, but we also had overcome the homophobia of the obstructionist Republican apparatus and conservative movement. Although eight Republicans joined the Senate vote to finally right this injustice, within an hour of the vote, Bryan Fischer of the American Family Association said, "we are now stuck with sexual deviants serving openly in the U.S. military..."
"It's a tragic day for America," Peter Sprigg, senior fellow for policy studies at the Family Research Council, told the Associated Press. "But I don't think this will really affect the marriage issue very much. It's been rejected by voters in 31 states."
That's exactly where Mr. Sprigg is wrong.
Our culture is changing rapidly. Most Americans believe that gays and lesbians are entitled to the same rights and responsibilities as their fellow citizens, including now over 50 percent who believe in marriage equality.
We see other signs of progress too. For example, Ricky Martin, one of the biggest pop music stars of all time and Ken Mehlman, a former Republican Party chair turned Wall Street banker, felt comfortable enough to publicly proclaim their sexuality. Now, the gay high school kid on Fox's Glee has a great, show-stealing boyfriend. A New Jersey teenager's suicide gave new poignancy to a PSA campaign in which Americans from all walks of life, famous and not, spoke openly and candidly in record numbers about what it means to be gay and how "it gets better" - thanks to activist and writer Dan Savage.
In Washington, however, we have missed opportunities and have not so far been able to transform favorable public opinion into the powerful and undeniable force for change that it should have been. We believe that the moment for decisive action for full gay equality is here -- that this moment is a historic imperative. The goal of Equality Matters is to leverage our expertise in media and communications, and politics and policy, to support those who share that belief and help create an environment where policymakers, the courts, the media and the public at large understand that gay rights are human rights.
Despite the important victory we have just witnessed, make no mistake about it: we are still the only class of Americans for whom discrimination is codified into state and federal law. We have a lot of work to do.
Three basic commitments; and substantial progress.
President Obama made three core commitments to Americans on lesbian, gay, bisexual and transgender equality. He would end "don't ask, don't tell"; fight for and sign into law legislation with basic employment anti-discrimination protections; and work hard to repeal the federal anti-gay marriage law (the so-called Defense of Marriage Act, or DOMA). We have now achieved one out of three.
This milestone on "don't ask" repeal and the other progress we have made would not have been possible without true political leadership. Senator Kirsten Gillibrand of New York is perhaps the most significant example of someone who, as she has stepped on to the national stage, has embraced the cause of equal rights for gays and lesbians as one of her signature issues. Gavin Newsom, the new lieutenant governor of California and the first elected official there to grant marriage licenses to same-sex couples, is another.
There are others less well known, like Iowa State Senate Majority Leader Mike Gronstal, who when urged to allow legislative action on reversing Iowa's court-imposed marriage equality rule, recently said: "The easy political thing for me to do years ago would have been to say, 'Oh, let's let this thing go. It's just too political and too messy.'" But, he added, "What's ugly is giving up what you believe in - that everybody has the same rights. Giving up on that? That's ugly."
And we have witnessed profound profiles in courage and conviction in the "don't ask, don't tell" debate. Adm. Mike Mullen, chairman of the Joint Chiefs of Staff made a passionate case for open military service. Gen. John Shalikashvili and Former NATO commander Gen. Wesley Clark were other important voices. Rep. Patrick Murphy and Sen. Joe Lieberman simply refused to give up.
The "don't ask, don't tell" rule was first created in 1993. I was serving on the White House staff at the time and later became a special assistant and LGBT advisor to President Bill Clinton. The president, who supported fully open military service, was thwarted in that goal by then chairman of the Joint Chiefs Colin Powell (a Bush holdover) and Senate Armed Services Committee Chair Sam Nunn, who both strenuously opposed letting gays serve. The new rule was supposed to be a compromise of sorts - a midway point. Gays could serve, just not openly. It never turned out that way.
In the almost two decades since "don't ask, don't tell" was enacted, the world has changed dramatically. Our perceptions have changed. Our expectations are higher around issues of basic fairness, dignity, and respect, both as a result of sweeping changes in the culture and changes in our politics as well. It's hard to imagine a rule like "don't ask, don't tell" being made law today. Even President Clinton eventually denounced the law and he has since become a supporter of equal marriage rights.
Marriage equality takes center stage.
The key issue President Obama and other policymakers face now is gay marriage. In the civil rights community, it has become a litmus test of sorts on whether one supports full equality. As an Illinois state legislator, Mr. Obama favored marriage equality and a generally more expansive view of gay rights. But as he ran for higher office, his position became more cautious (he now favors civil unions), although he recently told blogger Joe Sudbay that "attitudes evolve, including mine."
While some policymakers still exist in both parties who think that support for marriage equality is too much to ask, positions on this issue are changing rapidly as the culture of the country progresses. Former Vice President Dick Cheney, former first lady Laura Bush, former U.S. Solicitor General Ted Olsen, former party chair Ken Mehlman, and Cindy and Meghan McCain all form the core of Republican supporters of marriage equality.
With New York Gov.-elect Andrew Cuomo pushing for marriage equality legislation in the state early this spring and the federal court about to confer it (again) in California, it may not be long before it is the norm for many citizens across the country because of momentum created outside Washington, including in Iowa and the Northeastern states. In fact, in addition to New York, pro-marriage governors were also elected this year in California, Maryland, Minnesota, Rhode Island, and New Hampshire.
Another important factor in the evolution of where we are today is the democratizing impact that "new media" and the Internet have had on the equality movement. Bloggers like John Aravosis, David Mixner, Pam Spaulding, Joe Sudbay and Andy Towle have been an invaluable resource, providing up-to-date, provocative information to the gay political community that it could not get elsewhere.
Partially as an outgrowth of all this information, new gay rights groups like Get Equal and Fight Back New York, formed just this year, were able to demonstrate that you could get results by being tough on friend and foe alike (a fact almost no one in Washington seems to get).
The struggle for marriage equality goes back to the late 1980s when groups like Lambda Legal and leaders like civil rights attorney Evan Wolfson (now head of the equality group Freedom to Marry), brought the original same-sex marriage case. Many, even those who were gay rights supporters then, thought they were asking too much. The truth is that they were visionaries.
Last year, following voter approval of the anti-gay marriage Proposition 8 in California, another visionary, Chad Griffin, formed the American Foundation for Equal Rights. He hired two of the best lawyers in America, one of them the most respected conservative legal figure in the country, former Republican Solicitor General Ted Olson and Democratic legal superstar David Boies. Together, they have since won the most sweeping gay rights court ruling in history.
That ruling captured an historical imperative. Supporting full equal rights is no longer out of the political mainstream, nor should we let our elected officials fail to seize this moment in history to embrace the dignity of each and every human being. Anyone who misses the opportunity will undoubtedly find themselves on the wrong side of history.
And as the Democratic Party starts work on its new national party platform next year, it will have to face the issue head on, as will President Obama.
The challenges ahead.
Historically, some Democrats have believed in the faulty premise that voters who care about gay equality have no alternative but to support all Democrats. In fact, even within the Democratic Party there has always been a range of views, including some real champions (Howard Dean, for example, was the first significant political leader to support early civil unions) and some not.
Now we have even more options. In my home state of New York, Mayor Michael Bloomberg, another marriage equality supporter and a Republican-turned-Independent, has staked out many aggressively pro-gay positions.
The gay Log Cabin Republicans made an important contribution earlier this year when their long languishing federal court case become the first to significantly and broadly strike down "don't ask, don't tell."
Then comes the issue of money. Gay and lesbian donors to the Democratic Party are frustrated with the sometimes slow place of change. Moreover, gay rights have become significantly more important to progressive donors generally, who are directing their substantial resources toward those who support full equality, ignoring those who don't.
Washington-based gay rights groups have faced daunting challenges in the past two years. With friends in power, it often seems like change should come more easily. As a former White House official, I understand how that view is part of the Beltway culture. Additionally, whenever a new Democratic administration arrives, especially when it is preceded by a conservative one, progressives generally have long lists of items they all want done right away. The fact is, not everything can be first on the list. I understand that, too.
But equality groups have had another huge obstacle. They have had to try to be strategic sometimes without clear and consistent White House guidance. Let's face it: LGBT rights lobbyists were in the same position as many other progressive activists (for example, those for immigration and climate change) - they often had to make strategy decisions based on mixed signals from the administration.
Because President Obama lacked close relationships or long-standing political connections to gay rights leaders, he should have appointed a senior staff person to oversee policy formulation on equality issues across the government from the start.
During the early days of the new administration, in a Washington Post op-ed I urged President Obama to talk about equal rights with the passion he seemed to project during the campaign. That is exactly what he did following passage of the "don't ask, don't tell" bill this past weekend. When I read the president's statement I knew, again, that he was with us.
Now, even with an incoming Congress not fully in his corner, the president still has enormous power to fight ongoing discrimination through enforcement regulations and by instructing the Justice Department to fight for an expansion of rights rather than a contraction of them.
Going forward, we must continue to do battle against the cynical obstructionists of the right-wing apparatus and conservative movement who still try to exploit fear for their own partisan and anti-Obama political reasons. It's clear the right-wing wants to continue to have this fight through the upcoming presidential election and -- as candidate Bob Dole tried to do against Bill Clinton in 1996 with the issue of marriage -- use it as a wedge against Democrats and progressives.
At the same time, we should insist that President Obama show moral leadership on marriage equality by not only endorsing it now, but by using his considerable powers of persuasion to help all Americans understand why equality matters.
On December 19, the New York Times reported that Media Matters for America is lauching Equality Matters, a new media and communications initiative in support of lesbian, gay, bisexual, and transgender equality.
The Times' Sheryl Gay Stolberg wrote:
As gay people around the country reveled on Sunday in the historic Senate vote to repeal "Don't Ask, Don't Tell," a liberal media watchdog group said it planned to announce on Monday that it was setting up a "communications war room for gay equality" in an effort to win the movement's next and biggest battle: for a right to same-sex marriage.
The new group, Equality Matters, grew out of Media Matters, an organization backed by wealthy liberal donors -- including prominent gay philanthropists -- that has staked its claim in Washington punditry with aggressive attacks on Fox News and conservative commentators like Rush Limbaugh and Glenn Beck.
It will be run by Richard Socarides, a former domestic policy adviser to President Bill Clinton who has been deeply critical of President Obama's record on gay rights. A well-known gay journalist, Kerry Eleveld, the Washington correspondent for The Advocate, will leave that newspaper in January to edit the new group's Web site, equalitymatters.org, which is to go online Monday morning.
"Yesterday was a very important breakthrough," Mr. Socarides said in an interview on Sunday, "and President Obama's comments, especially following the vote, were very significant, where he for the first time connected race and gender to sexual orientation under the banner of civil rights.
"But we will celebrate this important victory for five minutes, and then we have to move on, because we are the last group of Americans who are discriminated against in federal law and there is a lot of work to do."
Mr. Obama signed the hate crimes bill into law last year, and he is expected to sign the "Don't Ask, Don't Tell" repeal before he leaves for Hawaii this week, although he and military leaders face additional steps before the actual reversal of the policy.
But the nondiscrimination and marriage bills are stalled on Capitol Hill, and now that Republicans are about to take over the House and increase their numbers in the Senate, it is widely agreed that the political climate for gay rights in Washington is about to worsen.
For the gay rights movement, the right to marry is the holy grail, because so many other benefits -- including Social Security and health benefits for gay partners, adoption rights, tax benefits and others -- flow from it.
While a range of groups are working to advance gay rights, the movement has lacked a national rapid-response war room of the sort that can push back against homophobic messages in the media and the political arena and keep the pressure on elected officials, said David Mixner, a gay author and activist.
"I think the lesson we have learned over the last two years is that you've got to be tough," Mr. Mixner said, "and you've got to keep people's feet to the fire."
The organizers of Equality Matters say that is their intent. Mr. Socarides and the founder of Media Matters, David Brock, said they began planning Equality Matters several months ago. They quickly persuaded Ms. Eleveld, who covered the Obama campaign and has covered Washington for the last two years, to join them.
"I've spent the past two years with a front-row seat to history, and the longer I sat there the more I felt drawn to participating," Ms. Eleveld said in an interview.
Equality Matters, Mr. Brock said, should "expose right-wing bigotry and homophobia wherever we find it" and "stiffen the spines of progressives." That, he said, did not change with the repeal of "don't ask, don't tell." He said Equality Matters was planned long before anyone in Washington had an inkling that repeal might actually succeed.
"We believe the big battle is full equality, which is gay marriage," he said.
Media Matters today announced the launch of EqualityMatters.org, a new media and communications initiative in support of gay equality. Joining EqualityMatters.org as President is Richard Socarides. A leading gay rights advocate for over two decades, Socarides previously served as White House Special Assistant and principal adviser to President Bill Clinton on gay civil rights issues.
Below is a sampling of Equality Matters President Richard Socarides' op-eds pushing for full LGBT equality.
POLITICO: A way forward on gay marriage
August 18, 2010
The recent sweeping federal court ruling striking down California's gay marriage ban as unconstitutional provides President Barack Obama, a constitutional law scholar, with an important opportunity to shift his views on same-sex marriage. He can do so by reminding people that respect for the constitution, the rule of law and the courts are the principles upon which this country was founded.
When he ran for president, Obama took the position that while he was for equal rights for gays, he favored civil unions over marriage. (Earlier, as a candidate for the Illinois state Senate in 1996, he had supported full same-sex marriage rights.)
His presidential campaign view seemed fine for most gay voters at the time (despite its apparent political expediency), and he received their overwhelming support in the general election. But that position is now untenable for several reasons.
First, where you stand on the issue of marriage has become a kind of political litmus test for gay voters on whether you support full or partial equality. It is now seen as a proxy for whether you believe gays and lesbians are entitled to full dignity, respect and inclusion in every aspect of American society. And whether, in essence, our struggle for equality is worthy as a civil rights movement. Just saying you are for equal rights will no longer cut it.
Chad Griffin, president of the American Foundation for Equal Rights, which brought the Perry v. Schwarzenegger case in California, said immediately after the ruling: "Today we begin the process of saying to the millions of people who are made to feel ostracized, besieged, bullied and ashamed of how God made them -- be who you are, love who you love and marry who you wish to marry."
That is not someone talking about just a marriage license, and if Judge Vaughn Walker's reasoning is upheld, it is hard to believe that any law that discriminates against gays would be constitutional.
Moreover, as the Perry case and its high-profile legal dream team of Ted Olson and David Boies continue to focus attention on the issue, Obama's position becomes increasingly important to the liberal (and younger) voters that helped elect him -- voters who are already less enthusiastic, according to recent polling.
They realize that the external political environment has an impact on the Supreme Court and that the president's views could be an important factor. Obama can no longer continue to allow his Justice Department to vigorously defend the constitutionality of anti-gay laws in court -- laws he then says should be repealed.
The day after the California ruling, White House aide David Axelrod reiterated the president's current position, telling MSNBC, "The president does oppose same-sex marriage, but he supports equality for gay and lesbian couples in benefits and other issues, and that has been effectuated in federal agencies under his control. He supports civil unions, and that's been his position throughout. So nothing has changed."
That was a missed opportunity.
Support for equal benefits, but not for equal status -- a gay "separate but equal" rule -- is contrary to what Obama stands for, both as a person and as a symbol of expanding freedoms and opportunities. Continuing on this course will lose him and his fellow Democrats the support and enthusiasm of a large block of his base voters.
But can President Obama, who once supported gay marriage, only to oppose it now, change his position again? The answer is yes -- and he in fact has no choice.
People understand that most public officials who now support gay marriage once opposed it. It wasn't until after they left office that Bill Clinton and Al Gore (and, most recently, Laura Bush) said that they favored marriage equality. As Nate Silver recently wrote on his blog FiveThirtyEight.com: "Does anyone really believe, in a country that is becoming close to evenly divided on gay marriage, that Hillary Clinton, Barack Obama and John Kerry are among the half who oppose it? "
The sooner Obama changes his answer on this most important equal-rights issue of the day, the better off he will be. The Perry ruling provides the right opportunity to shift his emphasis and provide real leadership, reminding people that in this country, we look to the courts for direction on what our Constitution requires.
It might also help the president's popularity with those that elected him, and it puts him and his party on the right side of the equality question, where he, of course, belongs and presumably wants to be.
Huffington Post: A Summer for Gay Rights
July 18, 2010
This is shaping up as the summer of gay rights in the courts. The twin victories last week from the US District Court in Massachusetts striking down as unconstitutional key portions of the anti-gay "Defense of Marriage Act" and the eagerly anticipated decision in the federal Proposition 8 case in California have made for enormous excitement in the legal and civil rights communities.
We are at a tipping point in which the federal courts appear finally willing to recognize and more aggressively enforce civil rights for gay and lesbian Americans. Much as they did for African Americans a generation ago.
In the Proposition 8 gay marriage case especially (Perry v. Schwarzenegger), lawyers Ted Olson and David Boies have made a comprehensive and overwhelming case for basic fairness and full equality. Their opponents, on the other hand, presented no credible expert testimony and made arguments so flimsy -- and at times even patently false - that a ruling in their favor appears highly unlikely. The decision is expected soon.
Despite all this, there remains some marginalized skepticism from some unusual critics.
But here's another statistic: at the time that the Supreme Court struck down the remaining state laws banning interracial marriage in Loving v. Virginia, the Gallup Poll found that some 72% of Americans were opposed to interracial marriage. At one time or another, 37 states had passed anti-miscegenation laws. When civil rights are being infringed, "sticking out its neck" to protect minority rights is not only something the Supreme Court does, it is one of the primary reasons for the Court's existence.
Both Rauch and Capehart are ignoring not only our political history, but the history of civil rights advances through court rulings. Importantly, there is now an emerging consensus among gay rights advocates that these cases, including the one brought by Olson and Boies on behalf of the American Foundation for Equal Rights, can succeed and that the timing is right.
Wall Street Journal: Obama Is Missing in Action on Gay Rights
June 25, 2010
President Obama celebrated Gay Pride Month earlier this week by telling guests at a White House reception that he still favors full equality for gays and lesbians. But despite a steady trickle of small steps Mr. Obama has taken to promote gay rights, on the big issues he is a disappointment.
It's true that this president is no George W. Bush, or John McCain, for that matter. He signed into law a long-sought amendment to the federal hate-crimes statute, which added sexual orientation as a protected class. Many cabinet agencies have taken steps to make their rules and regulations more gay-friendly, most significantly with respect to issues like hospital visitation and, earlier this week, some aspects of family medical leave. That's all good news.
Mr. Obama entered office with greater immediate challenges confronting him than most. But after eight years of benign neglect (at best) from Washington, and a campaign in which Mr. Obama promised to be our champion, gay Americans had good reason to expect more from this president, and now are understandably frustrated.
In a telling development, the most significant and aggressive legal effort to promote gay equality today is being led by a conservative, former U.S. Solicitor General Ted Olson. In federal court in San Francisco, together with co-counsel David Boies, he is prosecuting the most comprehensive and sophisticated legal attack on antigay marriage laws in history.
As that case unfolded--the decision will come later this summer--we learned last month that former First Lady Laura Bush supports gay marriage. Add her to the growing list that includes Bill Clinton, Al Gore, Dick Cheney, and Cindy and Meghan McCain.
When Mr. Olson's case reaches the U.S. Supreme Court in a year or more from now, will Mr. Obama be one of the few left on the wrong side of history? What a bitter irony that would be.
Wall Street Journal: Ask Obama About Don't Ask, Don't Tell
January 24, 2010
Many question why the White House avoided dealing with Don't Ask, Don't Tell last year, when Democrats had big majorities in Congress and polls showed that a majority of Americans favor changing the policy. A Quinnipiac poll in April, for example, found that 56% of Americans support repealing the policy.
A big part of the reason why the White House hesitated is fear of a backlash similar to the one suffered by President Bill Clinton in 1993 when he tried to allow gays to serve openly in the military. Recently we saw the potential beginning of an antigay fear campaign--much like the one in 1993 when then Sen. Sam Nunn (D., Ga.) was leading the charge--in the form of a leaked memo from a legal adviser to Mr. Mullen. The legal adviser opined that "now is not the time" to lift the ban because of "the importance of winning the wars we are in." Also, the New York Times reported recently that the Pentagon had begun considering "the practical implications of a repeal--for example, whether it would be necessary to change shower facilities and locker rooms because of privacy concerns."
Fortunately, these scare tactics are for the most part relics of an older era. People understand that our military needs every talented American it can get, and that excluding gays from the military detracts from our ability to win wars.
Most people also understand that we are long past the point where our military personnel need to be reminded about appropriate behavior on duty, regardless of gender or sexual orientation. Men and women serve side by side today in combat, as do gay and straight service members, without incident.
If repealing Don't Ask, Don't Tell becomes impossible in the shifting congressional dynamic this year (despite bipartisan support), the president has several options that would stop the discharge of gay American soldiers.
Current law does not require the services to discharge members based on sexual orientation per se. Rather, it looks to certain conduct to create a presumption for discharge. Thus, the Department of Defense has the authority to devise regulations that determine when such prohibited conduct has occurred. Defense could also interpret the Don't Ask, Don't Tell statute more literally (as intended) and refuse to discharge a service member unless he willfully discloses that he is gay, which almost never happens. Finally, Defense could invoke current regulations to retain gay service members in the interest of national security. All are good options.
January 11, 2010
Today, in a courtroom in California, a historic trial is beginning, one which may eventually decide the direction of civil liberties and constitutional rights in the United States into the foreseeable future.
That trial is Perry v. Schwarzenegger, and the battle for that most basic of civil rights, the right to marriage for anyone, regardless of sexual orientation, is now officially underway.
Theodore B. Olson, lead attorney for the plaintiffs, delivered his opening remarks this morning starting at 9 AM PT. In these, he reminded the court that "in the words of the highest court in the land, marriage is the most important relationship in life," and that basing the right to that relationship "on characteristics of an individual" is unconstitutional. He also noted that the stop-gap of domestic partnerships currently available in some states is an unequal alternative, and moreover, sounds like "a commercial venture."
"Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity."
Mr. Olson continued, noting that according to the California Supreme Court itself, "eliminating the right of individuals to marry a same-sex partner relegated those individuals to 'second class' citizenship, and told them, their families and their neighbors that their love and desire for a sanctioned marital partnership was not worthy of recognition." He then went on to lay out reasons for the importance of marriage, the harm Proposition 8 has done to gay and lesbian couples, and the lack of any valid reasons behind this exclusion.
Olson, a conservative who served as the attorney for the Bush side of Bush v. Gore, has received significant media attention for his involvement in this case. In an essay recently published inNewsweek entitled "The Conservative Case for Gay Marriage," he explained his reasoning, noting that he sees this as an issue of "recognition of basic American principles[and] commitment to equal rights," not a reason to invoke politics. He went on to say that "Americans who believe in the Constitution's guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues."
(President Bill Clinton recently agreed, saying that his former reluctance to endorse gay marriages was because he was "hung up about the word," and that he "was wrong about that...I had an untenable position.")
Mr. Olson's remarks are just the beginning of a three-week trial, which is eventually expected to be appealed all the way to the Supreme Court. Though Federal Judge Vaughn Walker had originally agreed to air the trial on YouTube, with some delay, the Supreme Court this morning overturned that decision, meaning that, at least until Wednesday, cameras will not be allowed inside the courtroom.
Nevertheless, this trial, a landmark of civil rights for our time, is sure to draw the eyes of the world. The stakes could not be higher, but as Olson said today: "that is exactly why we have courts, why we have the Constitution and why we have the 14th Amendment....That is why we are here today."
AMERICAblog: The Choice to Defend DOMA, and Its Consequences
June 14, 2009
Like many other gay people who support the president, and as someone who had hoped he would be a presidential-sized champion of gay civil rights from the start, I was disturbed by his administration's brief defending the so-called Defense of Marriage Act (DOMA), filed late last week, in opposition to our full equality.
It had such a buckshot approach to it, a veritable kitchen sink of anti-gay legal theories, that it seemed expressly designed to inflict maximal damage to our rights. Instead of making nuanced arguments which took into account the president's oft-stated support for repealing DOMA - a law he has called "abhorrent" - the brief seemed to embrace DOMA and all its horrific consequences.
I was equally troubled by the administration's explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.
No matter what the president's personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.
I know and accept the fact that one of the Department of Justice's roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case - and not in this way. To defend this brief is to defend the indefensible.
From my experience, in a case where, as here, there are important political and social issues at stake, the president's relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president's policy decision, the policy decision should always win out.
I am still hopeful that much can be accomplished over the course of this presidency. But I strongly believe that to do so we must make it loud and clear that we will not be sacrificed to the altar of political expediency, that there will be a steep price to pay if our constitutional rights are ignored or put off indefinitely, and that a deeply offensive brief like the one filed last week will not be allowed to go unchallenged.
As we approach the 40th anniversary of Stonewall, I'm reminded of something President Obama said during the campaign: "Change will not come if we wait for some other person or some other time. We are the ones we've been waiting for. We are the change that we seek."
Washington Post: Where's Our 'Fierce Advocate'?
May 2, 2009
As an adviser on gay rights to President Bill Clinton during his second term, I know how hard it is to achieve real progress. We learned that lesson acutely during Clinton's abortive first-term attempt to allow gays to serve in the military, an outcome for which he is still paying a steep legacy price.
But recent victories on gay marriage, a youth-driven paradigm shift in public opinion and the election of our first African American president make this a uniquely opportune moment to act.
I understand that the president has his hands full saving the economy. But across a broad spectrum of issues -- including women's rights, stem cell research and relations with Cuba -- the Obama administration has shown a willingness to exploit this change moment to bring about dramatic reform.
So why not on gay rights? Where is our New Deal?
It is the memory of 1993's gays-in-the-military debacle (and a desire never to repeat it) that has both the president's advisers and policy advocates holding back, waiting for some magical "right time" to move boldly.
This is a bad strategy. President Obama will never have more political capital than he has now, and there will never be a better political environment to capitalize on. People are distracted by the economy and war, and they are unlikely to get stirred up by the right-wing rhetoric that has doomed efforts in the past.
And people are willing to try new approaches. The court ruling legalizing gay marriage in Iowa represents a real opening, an opportunity to get "undecideds" to take another look not only at gay marriage but at gay rights in general. As Iowa Sen. Tom Harkin remarked, many Americans may be asking themselves, "If the [Iowa] Supreme Court said this, maybe I have to think anew."
Here is what Obama should do to seize this opportunity:
First, he should start talking about gay rights again, the way he did during the campaign. What made Clinton such a transformational figure of inclusion was his constant willingness to talk to and about gay people. When he said, "I have a vision and you are a part of it," you could feel his sincerity.
As president, Obama barely mentions gay and lesbian Americans. During his first 100 days, he has done so only while defending his selection of inauguration speakers. He was silent after the announcement of the Iowa decision -- one of the most important gay civil rights victories ever.
Second, he should move swiftly, as he promised during the campaign, to help secure passage of the bill now moving through Congress imposing new federal penalties for anti-gay hate crimes, as well as legislation allowing gays to serve in the military. Ten years have passed since Matthew Shepard was killed. We have endured 15 years of "don't ask, don't tell" discrimination. We have waited long enough.
Third, he should appoint a high-ranking, respected, openly gay policy advocate to oversee government efforts toward lesbian, gay, bisexual and transgender equality. Give this person access to policymakers, similar to what has been done on urban policy and for people with disabilities. This is especially important because, unlike Clinton, who had gay friends such as David Mixner, Roberta Achtenberg and Bob Hattoy around to nudge him, Obama has no high-profile gay senior aides with a history in the gay rights movement.
Finally, Obama should champion comprehensive, omnibus federal gay civil rights legislation, similar to the Civil Rights Act of 1964, outlawing discrimination based on sexual orientation and granting a basic umbrella of protections in employment, education, housing and the like (rather than the existing piecemeal approach to legislation). Such a bill should also provide for federal recognition of both civil unions and marriages as they are authorized by specific states.
Obama is in a good position, and the time is ripe for a new approach. Taking these steps might spare the country the trauma of devolving into a pervasive and divisive debate over gay marriage, which, after all, is not the only issue of concern to gay and lesbian Americans.
Gay voters who supported Barack Obama remain positive about him, and most are prepared to be patient. It's still early on gay rights for the Obama administration -- but now is the time to act boldly.