Volume four, Issue 20 | May 19 – 25, 2005
Leaders Say Crossroads is Perilous
At bar association panel, five prominent LGBT New Yorkers assess state of civil rights drive
Billed as a forum on “Equality at the Crossroads,” a May 15 town hall meeting co-hosted by the Association of the Bar of the City of New York and the New York County Lawyers’ Association included five leading voices from the lesbian and gay community.
One speaker, Matt Foreman, who heads up the National Gay and Lesbian Task Force, summed up the current climate in the United States by saying the gay rights movement is poised between “promise and peril,” with the future very uncertain.
The gay Republican on the panel called the wave of anti-marriage referenda adopted in 2004 a “devastating blow,” but also shared his confidence that a happy ending is possible. Patrick Murphy, who sits on the Log Cabin Republicans’ national board and is a past president of the New York City chapter, noted that opponents of gay marriage also are pessimistic—76 percent of Americans, he said, believe same-sex unions will eventually become the law of the land.
The forum started with a comprehensive overview from Suzanne Goldberg, a Rutgers University law professor who is a former staff attorney at Lambda Legal. Goldberg said the earliest legal thrust of the lesbian, gay, bisexual and transgender (LGBT) rights effort was in a significant sense completed when the Supreme Court overturned the nation’s remaining sodomy laws in 2003. Though vestiges of the fight to do away with laws and rulings that criminalize gay conduct continue, the Lawrence v. Texas ruling eliminated an important legal underpinning used throughout history to justify discrimination—the notion that gay men and lesbians engage in criminal conduct in the course of their sex lives.
The new challenges facing the LGBT community often involve the removal of discriminatory civil law relating to issues like employment, housing, marriage, health benefits, inheritance, child-raising, visitation rights and other matters.
Goldberg also addressed the social climate that influences the way in which courts render their decisions. The legal arguments against same-sex marriage may be weak, and legal advocates may be able to counter them logically, but the analysis is no different than it was in the ‘70s when the first gay marriage cases were raised and summarily rejected. Legislative and social changes are essential to further progress, in Goldberg’s view. The courts are reluctant to get too far ahead of society. While the level of scrutiny that government’s arguments for restricting marriage or any other goal of the LGBT community is a key component of how specific cases are decided, other factors are more difficult to put a finger on.
Underlying much of the opposition to gay marriage—or gays in the military for that matter—is the sense that “gay people are not good role models,” Goldberg argued. That prejudice, in turn, is related to the general discomfort that some in society have toward the idea of same-sex couples raising children. In the current debate over marriage, same-sex unions are seen as “not as good” as heterosexual marriages.
But, Goldberg noted, general animus or discomfort toward gay people is not a sufficient justification for discrimination—a key finding of the Supreme Court in the 1996 Romer v. Evans ruling that struck down Amendment 2 of the Colorado Constitution approved by voters, a measure that barred the state and local governments from adopting nondiscrimination protections for gay and lesbian citizens. (Goldberg was an attorney in that winning Lambda case.) Defenders of discriminatory practices, however—from states defending their marriage law to the military citing unit cohesion and morale as justification for barring service by openly gay and lesbian members of the military—continue to rely on what amounts to an animus argument, and even though gay rights litigators hold a trump card on this question, progress in the courts is halting.
Goldberg noted that “the state cannot legitimately prefer straight people to gay people,” but that practice continues in innumerable ways.
Getting the legal and political strategies into synch was a major concern voiced by Foreman. The community is “close” to a pivotal moment where the movement will either go “forward or back,” and a major strategic difficulty is that in the past several years LGBT activists have increasingly been forced to fight the battle on the opposition’s turf—popular referendums.
“It is almost impossible to win a basic human right at the ballot box,” Foreman said, noting that it might be difficult to prevail in a referendum on free speech or separation of church and state, never mind the right to choose, anti-bias protections, or access to civil marriage.
Referring to our rights being put up for a vote, Foreman said, “If this were happening to any other minority, we would be outraged. If this were happening in Kosovo, we’d be outraged.”
“We are not going to win by ourselves,” Foreman continued.
He argued that the LGBT community is going to have to step up in support of natural allies like pro-choice groups, labor and civil rights groups, as part of the effort to build coalitions, if we are going to expect the support of those communities in return.
But one of Foreman’s strongest points was the need to frame gay rights and access to marriage as matters of basic ethics.
“We have to move it to a moral level,” he said.
Saying opposition to our rights is “unfair” or “discriminatory” is not enough Foreman insisted. Opponents of same-sex marriages won’t be stopped if the question is “debated like it’s a question of tax policy.” The arguments must be concise and have a strong moral component.
Foreman candidly admitted that he didn’t know precisely what will work, but said he is looking for messages that have the simplicity and clarity of the religious right’s campaign of “protecting marriage.” He noted that the marriage protection formulation was a brilliant public relations stroke by the Christian right that had put a lot of money into their coffers, a point on which other panelists agreed.
Richard Kim, who is a staff writer for The Nation and teaches sexuality and gender in the American Studies department at NYU, where he is completing his Ph.D., challenged the emphasis on the same-sex marriage issue and said the debate was not complete without discussing how marriage continues to be a coercive institution, not only for those who might find themselves trapped in a an unhappy or violent domestic arrangement, but also for those who are unmarried and therefore lack the privileged status given to married people and their offspring in terms of health care, taxes and inheritance. Kim spoke passionately about the need for LGBT groups to work with those fighting for economic justice and against racism, and spend time on other larger social issues. Kim based his statements not only on moral arguments but also on the pragmatic political advantages of working in coalition.
A significant number of questions for the panel jotted down on slips of paper by audience members similarly challenged the assumption that marriage was paramount to the exclusion of other social and economic issues. Several questions also focused on the lack of diversity on the panel—of the five panelists and the moderator, only one was a woman, only one a person of color and none was transgendered—and noted that such lack of diversity was echoed in the composition of the audience and in the leadership of major national gay groups.
Kim pointed out that local groups—including the LGBT Community Center and AIDS organizations such as Gay Men’s Health Crisis and Housing Works—have a better record of diversity in their leadership than the national organizations.
Speaking for the largest national LGBT group, the Human Rights Campaign, headquartered in Washington, Christopher Labonte, who heads up the group’s legislative efforts on Capitol Hill, explained that the current climate demands both a commitment “to increase grass-roots support” and a continuing program of “talking to our allies in Congress.”
Labonte acknowledged that that the legislative strategy is both defensive and proactive. On the defensive side, of course, the major national priority is blocking any amendment to the Constitution that would define marriage as excluding same-sex couples. But HRC also continues to push for employment nondiscrimination protections for the LGBT community, as well as a federal proposal, the Permanent Partners’ Immigration Act, first introduced by Manhattan Democratic Rep. Jerrold Nadler, that would allow gay and lesbian partners of American citizens to become naturalized themselves, just as foreign-born spouses are, and continued funding for AIDS and other critical LGBT health concerns.
Paul Schindler, Gay City News’ editor, served as the evening’s moderator.