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Todd Fernandez

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Why Gay Marriage Is Not the Issue for Obama This November

Posted: 04/02/2012 2:21 pm

Getting the president to say "marriage equality" may feel good, but it's bad politics and misleading to the LGBT community. Why? No one in the LGBT movement or DNC is proposing a federal law to outlaw marriage discrimination in the 50 states. Democrats have simply not yet made same-sex marriage equality a federal issue. So there's no corresponding "ask" and Obama saying "marriage" or the DNC Platform using the word "marry" -- in the absence of a call for full federal equality including marriage nondiscrimination -- does nothing more than stir the cultural political debate at our expense and box-in the president as his campaign rightly fears.

Meanwhile, the sometimes states-rights Republicans have no problem making marriage inequality a federal issue, calling boldly for the federal government to outlaw marriage discrimination via a U.S. constitutional amendment. This too is equally implausible as a post-election agenda item, though its tactical electoral use continues.

The 2008 RNC Platform reads:

"Because our children's future is best preserved within the traditional understanding of marriage, we call for a constitutional amendment that fully protects marriage as a union of a man and a woman, so that judges cannot make other arrangements equivalent to it. In the absence of a national amendment, we support the right of the people of the various states to affirm traditional marriage through state initiatives."

This threat -- of a constitutional amendment -- is allegedly what scared President Clinton, HRC and Barney Frank into capitulating to DOMA 16 years go. But while plausible then, today the demographics of youth support for marriage equality pushing 70% have likely destroyed the RNC ability and appetite to push such an agenda. And while Romney may have taken the NOM Pledge for this to win a Republican primary, it's unlikely he will either campaign on this in the general election or waste a possible first term on such issues.

Nevertheless, to counterbalance this idea and the politics, there is a current push from 22 Senators and Minority Leader Pelosi and other key LGBT voices - prompting an important debate -- urging the inclusion of the following proposed language for the 2012 DNC Platform:

"The Democratic Party supports the full inclusion of all families in the life of our nation, with equal respect, responsibility, and protection under the law, including the freedom to marry. Government has no business putting barriers in the path of people seeking to care for their family members, particularly in challenging economic times. We support the Respect for Marriage Act and the overturning of the federal so-called Defense of Marriage Act, and oppose discriminatory constitutional amendments and other attempts to deny the freedom to marry to loving and committed same-sex couples."

This tepid language, proposed by Freedom To Marry, mostly varies symbolically from the 2008 DNC Platform detailed below by calling more explicitly for DOMA repeal, which was already "opposed," by adding "oppose discriminatory constitutional amendments" which is new, and primarily by adding the words "freedom to marry" -- without actually calling for marriage equality from the federal government or establishing the duty to outlaw marriage discrimination.

Beyond this, the new proposed language and the '08 DNC Platform fail entirely to engage the broader issue of categorically outlawing discrimination based on "sexual orientation and gender identity" (SO&GI) as required by human rights law. This wrongly puts the debate over the word "marriage" ahead of securing equal protections under the civil rights laws that cover a wide range of issues important to the lives of LGBT people, married or not, including employment, housing, credit, all federally funded programs, public accommodations, schools, and government facilities.

Those federal laws do not address marriage nondiscrimination because criminal laws against inter-racial marriages were held unconstitutional as violating the "freedom to marry" - hence the power of those words -- as expressed by the Supreme Court in Loving v. Virginia. This is the trajectory dreamed of for same-sex marriage, but it is far from certain given the cases en route. But Congress could have done this too and still could for same-sex marriage as it should, but no politician is brave enough to even suggest it and the DNC is no exception.

In fact, the 2008 DNC Platform is very weak over all on LGBT issues, and does not even have a section dedicated to LGBT equality, like there is on seniors, choice, the arts, and many many topics. We are referenced twice, once in regards to DADT repeal now behind us (on pg. 36), and then again in passing in this section titled "A More Perfect Union" which reads, in relevant part (on pg. 51):

"We believe in the essential American ideal that we are not constrained by the circumstances of birth but can make of our lives what we will. Unfortunately, for too many, that ideal is not a reality. We have more work to do. Democrats will fight to end discrimination based on race, sex, ethnicity, national origin, language, religion, sexual orientation, gender identity, age, and disability in every corner of our country, because that's the America we believe in."

What's not clear in this is that each of these statuses of race, sex, etc. -- all except sexual orientation and gender identity -- are already covered by comprehensive nondiscrimination laws long in effect.

It goes on to say:

"We will restore professionalism over partisanship at the Department of Justice, and staff the civil rights division with civil rights lawyers, not ideologues. We will restore vigorous federal enforcement of civil rights laws in order to provide every American an equal chance at employment, housing, health, contracts, and pay ... That means removing the barriers of prejudice and misunderstanding that still exist in America. We support the full inclusion of all families, including same-sex couples, in the life of our nation, and support equal responsibility, benefits, and protections. We will enact a comprehensive bipartisan employment non-discrimination act. We oppose the Defense of Marriage Act and all attempts to use this issue to divide us."

What's most obvious is that nowhere does it say it will add anti-discrimination protections for "sexual orientation and gender identity" to the civil rights laws. This means that the DOJ Civil Rights Division -- so evidently important as a tool of enforcement -- has no explicit jurisdiction over SO&GI discrimination issues. And of course, marriage equality -- or nondiscrimination in marriage -- is not addressed at all in the limited legislative agenda of ENDA and DOMA repeal, which is sadly all the DNC-dominated LGBT movement is publicly committed to as well.

Interestingly, the Republicans in their 2008 RNC Platform have a rather powerful statement against discrimination in a section called: "Preserving our Values" under the subtitle of "Ensuring Equal Treatment for All", which reads as follows:

"Individual rights -- and the responsibilities that go with them - are the foundation of a free society. From the time of Lincoln, equality of individuals has been a cornerstone of the Republican Party ... We consider discrimination based on sex, race, age, religion, creed, disability, or national origin to be immoral, and we will strongly enforce anti-discrimination statutes. We ask all to join us in rejecting the forces of hatred and bigotry and in denouncing all who practice or promote racism, anti-Semitism, ethnic prejudice, or religious intolerance... "

So both the RNC & DNC, at least in 2008, agreed discrimination is wrong and anti-discrimination statutes are vital. Yet neither calls for the inclusion of LGBT Americans -- possibly over 20 million of them -- to be protected by these laws which the NACCP considers to be sacrosanct, and the National Organization for Women considers important, but still inadequate as it seeks the Equal Rights Amendment (ERA) to constitutionally ban sex-based discrimination with no talk of including SO&GI.

Meanwhile, Republican strategists are foaming at the mouth to get footage of Obama saying he supports "marriage equality," to use like the National Organization for Marriage, for divisive bigoted strategies, whisper campaigns, and to both weaken the Democratic base in key constituencies divided on this issue, and to rile up their own as Santorum desperately does with Romney's tacit support.

So why does Freedom to Marry and a whole range of LGBT activists want to push this minor change for the word "marriage," and not much else? Well, that's a good question. So far, the movement has assiduously avoided even hinting at any federal action by Congress to outlaw marriage discrimination or to extend equal civil rights. We've kept our expectations limited and demands lower, and now want to play fire with the most divisive word out there.

Maybe we've lost sight of the possible image of the Romney Super Pac ad fear-mongering about Obama and the Democrats' "gay marriage agenda" to overturn 39 state constitutions against same-sex marriage. Why would we give them that if there is no plan to even attempt such a feat via Congress in a second term as appears to be the case? If it's only the power of the pulpit we seek to leverage, then shouldn't we secure the pulpit first?

By contrast the case for equal LGBT civil rights is strong with few down sides. President Obama is the first mixed race president in our history. His own success is a product of the 1964 Civil Rights Act, a result of much work by openly gay Bayard Rustin a leader in the black civil rights movement. He is a constitutional scholar who has propelled international Resolutions making clear the duty to "prevent, punish, and eradicate" SO&GI discrimination.

Pushing Obama to say that he will outlaw discrimination against LGBT Americans on an equal basis under the 1964 Civil Rights Act could make him a civil rights hero in his own right. It is an idea within his abilities and fitting to his unique historical presence and moment in time. For no other presidency owes as much to civil rights in America or is more perfectly suited to complete that work.

Politically, "equal civil rights" leaves little room for RNC mischief, and may even catch on in a Romney candidacy, which of course is the LGBT-DNC team's worst fear -- that our vote will be split and not betrothed. But we can not allow either party or our movement to use our cause as a pawn in a political game. And marriage equality at the federal level is unfortunately simply that -- a wedge card being played by all involved who know that once the election is over, Congress will do nothing to effectuate marriage equality, other than to repeal DOMA, a vitally important but incomplete goal that Obama already supports.

But if we're going to use the word "marriage" we should make our intentions clear and powerfully inclusive of full and equal anti-discrimination protections. Here's what supporters of human rights in both parties should be pushing for in the 2012 RNC & DNC Platforms -- in a stand-alone section worthy of the issue:

"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 and 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."

Anything else is just weak semantics and bad politics.

 

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