Freed from battling same-sex marriage bans, gay-rights groups are turning their attention to broader reforms.

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By Gregg Sangillo, National Journal
© National Journal Group Inc.
Wednesday, Jan. 31, 2007

With Democrats in control on Capitol Hill, gay-rights groups have a bit of breathing room. The GOP-led 109th Congress, with at least tacit support from the White House, tried unsuccessfully to pass a constitutional amendment declaring marriage to be an exclusive institution between a man and a woman, effectively denying the right of marriage to gays and lesbians. Now that the gay-marriage ban is almost certainly off the table at the federal level, advocates can turn their attention elsewhere.

Allison Herwitt, legislative director for the Human Rights Campaign, one of the nation's largest gay-rights organizations, emphasizes "just how excited we are that we are not having to be on the defensive, and we are just looking forward to doing some proactive policy work.... We have a leadership in place that is going to be interested in what we have to say." Dave Noble, political director of another leading advocacy group, the National Gay and Lesbian Task Force, concurs. "When Republicans were in control, it was all about stopping bad things from happening. And we feel now it's all a matter of how we can start moving things forward."

Still, some advocates caution that the Democratic caucus is not of one mind on gay rights. The freshman class includes some centrists who may not be in sync with the gay-rights groups' agenda. Steve Rawls, communications director of the Servicemembers Legal Defense Network, which is pushing for the repeal of the Pentagon's "Don't Ask, Don't Tell" policy on gays serving in the military, explains, "We know that many of the new Democratic members are 'Blue Dog' Democrats from conservative districts who aren't going to choose gay-rights legislation, per se, as the first bill they jump onto."

Gay-rights groups are focused on two major pieces of legislation: the Employment Non-Discrimination Act, which would ban workplace discrimination on the basis of sexual orientation, and a hate-crimes bill that would include sexual orientation. In September 2005, a hate-crimes amendment, sponsored by Rep. John Conyers, D-Mich., who now chairs the House Judiciary Committee, passed the chamber, 223-199, but was eventually stripped out of a larger anti-crime package in March 2006. The Employment Non-Discrimination Act, originally sponsored by Sen. Edward Kennedy, D-Mass., came up for a Senate floor vote in 1996 and failed, 50-49. Reps. Barney Frank, D-Mass., and Christopher Shays, R-Conn., have sponsored similar legislation in the House, but it has never reached a vote. Noble says that state or local laws protect about half of Americans from employment discrimination on the basis of sexual orientation, and that the time has come for a federal law.

House and Senate Democratic leaders have so far tried to avoid such controversial social issues as abortion and gay rights, focusing instead on pocketbook issues. But gay-rights groups contend that their main agenda items aren't as potentially divisive as the marriage issue. "As far as nondiscrimination in employment or protection against hate crimes, those aren't the hot-button issues the way that some have made out the marriage amendment to be," Noble says. Polls show that about 80 percent of Americans oppose job discrimination against gays, he notes. Herwitt adds, "These are certainly mature pieces of legislation that have been around and that members of Congress have previously shown support for."

The controversial Don't Ask, Don't Tell policy, which allows gays to serve in uniform as long as they don't come out of the closet, was devised when Democrats last controlled Congress in 1993, and the new Congress may indeed revisit the issue. Groups advocating a repeal were bolstered by a recent op-ed in The New York Times by retired Army Gen. John Shalikashvili. As chairman of the Joint Chiefs of Staff during the Clinton administration, he supported Don't Ask, Don't Tell, but he now endorses allowing gay and lesbian soldiers to serve openly. Gays and lesbians "would not undermine the efficacy of the armed forces," he wrote. "Our military has been stretched thin by our deployments in the Middle East, and we must welcome the service of any American who is willing and able to do the job."

Rep. Martin Meehan, D-Mass., a member of the House Armed Services Committee, introduced a bill in the last Congress calling for repeal of Don't Ask, Don't Tell; Rawls of the Servicemembers Legal Defense Network said he expects Meehan to reintroduce the bill soon and then set up hearings at Armed Services. "Our strategy right now is, get the legislation reintroduced in the House, get legislation introduced in the Senate for the first time, and then hold hearings to get our case out there," Rawls said. Though the issue will likely fall under the jurisdiction of the panel's Oversight and Investigations Subcommittee, he said, it could also be part of an overall discussion about military readiness.

Rawls is optimistic but cautious about the way forward. "I'd rather have a successful vote in 2008 than lose a vote in January of this year, because that sets us back enormously." Calling the 1993 debate over gays in the military a "debacle," he said, "We are most concerned about learning from those lessons and doing a slow, steady, and smart strategy this time."

Other gay-rights issues could potentially surface in the next few years. Jody Huckaby, executive director of Parents, Families, and Friends of Lesbians and Gays, a group that focuses on grassroots lobbying, says that legislators may eventually have to grapple with the gay-rights aspects of immigration policies. Straight people can get a green card through marriage, for example, and many advocates argue that gays and lesbians should have the same benefit.

Although action on a constitutional amendment to ban gay marriage is highly unlikely this year, the issue is not exactly on the back burner. In effect, if a court or state legislature gives gays and lesbians the right to marry in a particular state, federal policies quickly come into play. Even though a gay couple may be legally married in their home state, they don't qualify for marriage benefits under federal laws and programs -- including Social Security and the tax code.

Evan Wolfson, executive director of Freedom to Marry, a New York City-based organization, points out that a 2004 Government Accountability Office report evaluating the 1996 Defense of Marriage Act identified 1,138 ways in which federal law affects a married couple. Wolfson, who does not lobby but is an influential voice in the gay-rights community, says, "What I would like to see out of Congress eventually is a bill removing that discriminatory law.... I don't expect to see that in the first months of this new Congress, but I would like to see attention to that as we move forward."

Huckaby adds, "We need to be looking at all the benefits that exist for people who can get married, and how it is that we can, where appropriate and necessary, draft some legislation that provides some of those benefits for people who can't get married."

Although most Washington-based gay-rights groups are on message and in agreement about their short-term goals, tensions sometimes surface. Some activists, for example, have questioned the HRC's effectiveness. Time magazine blogger Andrew Sullivan, in a May 2006 post titled "The Worthlessness of HRC," wrote, "Having been in the fight for marriage equality for almost 20 years now, I can honestly say they've barely been detectable in the battle." Sullivan and other writers have complained that the HRC hasn't shown conviction in defending gay marriage and has relied too heavily on tactical arguments that voters supposedly don't consider gay marriage an important issue.

Brad Luna, director of media relations at the HRC, defends the group's record and says it was much harder to get legislation passed when Republicans were in control. "What do you do when you have a leadership in the United States Congress that, as part of their political playbook, [aims] to scapegoat the gay and lesbian Americans that we represent? You know, you do the best that you can and try to defend against it, try to make incremental gains where you can, and I think we've done a successful job of that."

Gay-Rights Groups Key Players: Human Rights Campaign; National Gay and Lesbian Task Force; Servicemembers Legal Defense Network On the Front Burner: Enact federal nondiscrimination in employment law; include sexual orientation in anti-hate-crimes legislation; repeal military's "Don't Ask, Don't Tell" policy Sleeper Issue: Reform immigration laws to grant foreign-born gays U.S. citizenship through marriage or civil union -- Gregg Sangillo

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