‘Don’t Ask’: Not Quite Fa La La Just Yet

According to the mainstream media and the Obama administration, it would appear that all us gay folks should don our gay apparel and go caroling from 1600 Pennsylvania Ave. to the Capitol, thanking our elected representatives for finally giving us the right to kill and be killed without simultaneously hiding in the closet. Progress, no doubt, in the sense that any denial of our civil rights is a denial of our basic right to full citizenship — but not a cause for unalloyed celebration.

Consider that President Obama campaigned on a menu of promises to lesbian, gay, bisexual and transgender folks, and I very much doubt that most of us would have put repealing “don’t ask, don’t tell” at the top of that list. Early on Congress added sexual orientation to existing federal hate crimes legislation, which was one item on the promised agenda — although another that evokes ambivalence, given the troubling civil liberties aspects of hate crime laws. Here, too, as with the military, we seem confined to saying “we’re not thrilled with the institution, but if it exists we shouldn’t be excluded.” I think it is fair to say that two other issues ranked higher on the LGBT agenda than either hate crimes or DADT: enacting the Employment Non-discrimination Act [ENDA] in its transgender-inclusive form, and repealing the Defense of Marriage Act [DOMA].

Bills to provide gay folks with protection against discrimination in housing, employment and public accommodation have been introduced in Congress since the mid-1970s and, while the number of co-sponsors has increased, they have never approached the threshold of success. As a matter of strategy, the organizations that claim to speak for the LGBT “community,” notably the Human Rights Campaign (the civil rights group that dare not speak its name), narrowed the focus of the legislation to employment discrimination, presumably because this was viewed as less controversial (and it is supported by large numbers in opinion polls). Still, ENDA has not yet passed either house of Congress, and no one expects Speaker-to-be John Boehner to shed any tears over this issue.

Twenty-one states have enacted some version of ENDA and some of these cover housing and public accommodation, as do ordinances in over 140 cities and counties. But it remains the case that in more than half of the states in the USA, it is not illegal to fire someone or deny them housing or public accommodation on the grounds of sexual orientation.

Marriage equality has been the hottest button on the political dashboard since the Hawaii Supreme Court first pushed it in 1993. Since then, over half the states have enacted prohibitions against same-sex marriage — 14 states did this in 2004 alone, an election year in which the Republican platform included a call for a constitutional amendment to prevent same-sex marriage. At the moment, five states (Massachusetts, Connecticut, Iowa, Vermont and New Hampshire) and the District of Columbia have legalized same-sex marriage. The California Supreme Court legalized it, but the decision was nullified by Proposition 8 in 2008, and a legal challenge in federal court is headed toward the U.S. Supreme Court.

During the anti-same-sex marriage hysteria of the 1990s, a large bipartisan majority in Congress passed the draconian Defense of Marriage Act, championed by such stalwarts of traditional marriage as twice-married Congressman Bob Barr, thrice-married Newt Gingrich and twice-married Bob Dole. President Clinton signed DOMA in August 1996, forbidding the federal government from recognizing same-sex unions and permitting states to decide for themselves whether to recognize same-sex unions performed in other jurisdictions. Until that point, there had been a controversy over whether states would be required to extend marriage rights to couples married in other states. The rights and responsibilities of marriage granted at the federal level, thus, do not apply to same-sex unions.

Incidentally, DOMA will create some interesting conflicts with the military’s soon-to-be nondiscriminatory status. Will a married gay couple in the military be married when they’re stationed in Connecticut but not when they’re transferred to New York? Will a surviving spouse be eligible for military benefits, yet still be denied Social Security benefits?

As we approach the midpoint of President Obama’s first term, it is true that some promises have been kept, but it’s also likely that we will now be told to be quiet and be grateful, and go back to our accustomed place at the rear of the political bus. At least, Rahm Emmanuel might have told us were he not now running for mayor of Chicago and suddenly a vocal supporter of same-sex marriage, we’re not being thrown under the bus. At the moment.

Still, the more important items on our agenda, enacting ENDA and repealing DOMA, seem no further along than they did last month, and it’s hard to believe that our “fierce advocate” (as Obama characterized himself during the campaign) will see our issues as helpful in his neo-Clintonian triangulating phase.

In the end, the solution is simple, if not immediately strategic: Sexual orientation should be added to the basic federal civil rights legislation. Pure and simple. This would obviate the need for ENDA, kill DOMA, and make DADT-type discrimination impossible. Of course, politics, like truth, is rarely pure and never simple, and we won’t get there anytime soon. But despite the excessive influence of the older, less-educated, rural and religious states (see my article on Lady Gaga), the demographic facts are on our side. It may take a while till we sing joyous, all together, but the day will come.