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Why Barney Frank Is Wrong About the DNC Gay Marriage Platform Debate

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The 2012 DNC & RNC Platform debates are proving to be a hot bed for LGBT issues, and this is propelling the question about full federal LGBT equality -- and federal marriage equality in particular -- to new realms. Unfortunately however, Representative Barney Frank, the most senior openly gay person in Congress, is again on the wrong side of progressive opinion.

The debate in the DNC platform context is particularly remarkable. That conversation has moved beyond semantic support for "marriage equality" and DOMA repeal, to the question of Congress' power to categorically outlaw discrimination against same-sex marriage in all 50 states, a very dicey political question, and an equally interesting legal question about the power of Congress and the Supreme Court.

The idea evidently has enough currency to draw Representative Frank into the public debate with his recent Huffington Post blog: "The Democratic Party and the Right to Marry". Unfortunately, like his opposition to including gender identity in ENDA and the 2009 March on Washington, he is once again opposing bold action, this time weaving a complicated web of politics and storytelling to confuse and thwart the idea, mingling strategy with law, and party loyalty with LGBT advocacy.

Most brazenly for a human rights advocate, he maintains, without legal analysis, that Congress does not have the power to act to protect our right to marry, an assertion he supports only with praise of the judicial strategy against DOMA. This, however, is incorrect as a legal matter. Congress does have the power to outlaw discrimination in state marriage laws under the Commerce Clause, the Fifth or Fourteenth Amendments, or international human rights treaties and obligations. This is a state institution and a matter of individual human rights, and the presumption should be that Congress has jurisdiction concurrent with the Supreme Court.

Beyond legal jurisdiction, Mr. Frank invokes the old states-rights argument that the federal government has no historic role in defining marriage, which is also simply not accurate, or relevant. DOMA is a federal law defining marriage, now 16 years standing, and it could be reversed to the opposite affect obviously. More importantly, federal power to protect civil rights, in marriage or otherwise, should be a given at this point. Although for same-sex marriage this could be a heavy lift, it is nevertheless a necessary option because there is no lawsuit en route to the Supreme Court that reaches this ultimate issue. But it is a very aggressive idea politically in the 2012 context for sure.

Mindful of this, Mr. Frank is presumably making a strategic argument against aggressive LGBT movement advocacy with the short term electoral politics of the DNC foremost in mind. This characteristic move provides gay-insider cover for the DNC from having to take a progressive stand on outlawing marriage discrimination, and thus helps to avoid the possible consequences to the election of such a stance, an understandable concern.

The idea of the DNC driving the federal reversal of almost 40 state laws and Constitutional amendments against same-sex marriage could cause a backlash jeopardizing the entire election. But that's politics and we're talking about human rights, and the platform does not need to be this categorical to take a principled stand. In any event, surely someone else can advocate for the DNC besides Barney Frank who is supposed to be on our side pushing for more.

At some point our own advocates and the political leaders of our time need to speak from principle and not strategy. Instead of resistance from liberals, we need the DNC & RNC both to stop playing politics with LGBT lives and to stand firmly in support of human rights for all, including LGBT Americans. This is the primary duty of the United States federal government, long overdue and beyond question.

Ironically, all the debate about imaginary marriage equality is overshadowing the issue of real federal civil rights protections for LGBT Americans under the 1964 Civil Rights Act, etc., which Congress and the president clearly have the power to effectuate. But at this point, neither the president nor the DNC has pledged to include sexual orientation and gender identity fully under the civil rights/nondiscrimination laws that protect other minorities in every other aspect of life (such as housing, employment, credit, public facilities and accommodations, etc.). Hopefully this is not being overlooked, as that goal is actually viable next Congress.

For those in this conversation, here is proposed language that true supporters of human rights in both parties should be pushing for in the 2012 RNC and DNC Platforms -- in a stand-alone section worthy of the issue. This speaks to full federal equality, calls for equal civil rights now, addresses DOMA repeal and interim relief for bi-national same-sex couples, and allows for a gradual approach to fixing marriage equality by legislative or judicial means, federal and/or state, while affirming the obligation and commitment to do so. History is being made with the 2012 Platforms, so why not get it right.

"Civil Rights and Ending Discrimination Based on Sexual Orientation & Gender Identity:

The United States acknowledges the vast harm that discrimination based on status causes to any oppressed minority, and affirms the duty and role of the federal government to outlaw and eradicate such discrimination. Toward this, we commit to taking immediate action to outlaw discrimination based on sexual orientation and gender identity on an equal basis under the 1964 Civil Rights Act, and related laws, in employment, credit, housing, all federally funded programs, public accommodations, public facilities and education. We further commit to immediately repealing the so-called Defense of Marriage Act, extending immigration rights to same-sex couples, and to pursuing a national strategy toward outlawing discrimination in marriage based on gender or sexual orientation in all 50 states through state law reform, judicial processes and federal law.

Beyond legal reforms, we commit to a public education campaign on the dignity of all people, including LGBT Americans, to ending bullying in schools, to including the contributions of LGBT Americans and their struggle in our educational histories, and to addressing with adequate funding programs to heal the health and mental welfare of individuals who have suffered under systemic discrimination in this country. The United States Constitution, Universal Declaration on Human Rights, and various international resolutions to which we are party, require this action as fundamental to our duty to protect the life, liberty, safety and dignity of all peoples, including LGBT Americans, and this duty is absolute."