From the October 6 edition of Savage Lovecast:
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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.