With definitive support for LGBT equality in his winning coalition and over 60 million votes on a marriage equality platform, President Obama has the mandate and power to go big for full federal LGBT equality in his second term. And he has a great team in Congress to help. Our first lesbian senator has been elected, and a whopping six House members are gay and lesbian, four entirely new, from Arizona, New York, California and Wisconsin. With equality at our back, we are good to go.
So what is the president's LGBT legislative agenda, and could it be full equality? Full equality is an idea often expressed but little explored. Briefly, for LGBT people, equality under the law means full inclusion of sexual orientation and gender identity under the nondiscrimination laws already in place for other groups, plus marriage. There are only seven existing laws, and we have previously filed separate bills to add us to four of those, covering employment, housing, credit and education. We've just never put them all together in one bill.
And we have also not included three important laws covering protection in public accommodations (like restaurants), public facilities (like hospitals and parks) or federally funded programs, which is the real jackpot. Under current law, every dollar the U.S. government spends comes with a nondiscrimination mandate. So the price tag for the government money is that you will not discriminate with it based on race, color, national origin or religion. This law protects against the greatest irony of paying taxes to a government that then discriminates against you in the providing of those services, like foster care, health care and education. Obviously, that is unacceptable, though we have yet to seek this protection.
In contrast, our legislative strategy today is focused primarily on the Employment Non-Discrimination Act (ENDA), and then repeal of the Defense of Marriage Act (DOMA), the federal law defining marriage as being limited to one-man/one-woman couples for purposes of federal marital benefits. These are important objectives, but they are in part already accomplished or en route to being accomplished. DOMA will likely be decided in our favor by the Supreme Court by June 2013. And the Equal Employment Opportunity Commission, which enforces federal employment laws, finally held in April 2012 that the category of "sex" discrimination encompasses "gender identity" and even "sexual orientation" cases, which affords the substantive legal protections sought by ENDA. So depending on timing, the odds are that by the time our issues hit the president's schedule, most likely by late 2013 or early 2014, employment nondiscrimination, though still in need of explicit legislation, will have been the law of the land for a good year already, and DOMA will be dead in critical aspects. So why not seek more?
As a practical matter, our rights could be attached to any moving legislation, because an actual bill for full LGBT equality is only a few pages long and would simply add us to sets of existing laws, like we do at the state or city level. We would primarily add two terms, "sexual orientation" and "gender identity," to the historic civil rights laws, iconic representations of government's acknowledged duty to outlaw minority-based discrimination. But we would also need to include one new provision that would inflame the conversation: "No state shall deny equal access to marriage under the laws of the state based on the gender of the two individuals seeking to form such union."
This would outlaw marriage discrimination across the country by invoking the historic jurisdiction of Congress to right wrongs in localities where no hope exists for the minority, as is the case for marriage in over 40 states still. This debate would open a hornet's nest of discrimination, but that is how you get to the homophobia that our social discourse needs to explore and heal. And now is the time, because in 2012 four states affirmed by popular vote that Americans understand the justice at stake in calling the question of marriage equality for gay people. In Washington, Minnesota, Maine and Maryland, the people delivered the message of our times: equality.
Dreaming big, Obama could be very aggressive and make full LGBT equality part of the fiscal cliff negotiations, where he has great tactical advantage. After all, every nondiscrimination law on the books is about protecting people's ability to survive as part of the American economy. This includes marriage, which is largely about financial interdependence and security, as well as employment, housing, credit and access to federal programs like job training. These are economic issues for LGBT Americans. These are our daily and lifetime fiscal cliffs, where survival often requires that we deny our dignity to exist hidden in an antagonistic world. And this situations demands aggressive leadership, period, because LGBT people suffer a public health emergency where suicide and mental anguish are daily life for us, afraid and denied safe haven in society. This is what nondiscrimination laws ultimately seek to address.
Alternatively, the president could approach LGBT equality as its own righteous cause, for the millions of Americans who voted on this dream and need this help, rolling it out with his unique strategic brilliance. First up, 2013 will likely be focused on job-creating initiatives, budgets and tax reform, deficits, immigration, climate change and election reform. But by early 2014, we should be next. We will have waited long enough. Too many will have lived, suffered and died without equality. And enough is enough.
Our people began organizing in 1950, when gay visionaries first self-identified themselves as a discrete minority in need of recognition and dignity, then living in secrecy and fear. But gays and lesbians have long been stewards and leaders of the dynamic movements of their times and have paved the way while being overlooked. For example, Bayard Rustin was a chief architect of the black civil rights movement, cultivating a young Martin Luther King, empowering him with strategy and philosophy, including nonviolent civil disobedience, the 1963 March on Washington and the earliest bus protests. He was an openly gay man in a religious civil rights movement in the 1950s. Imagine that. And though he was horribly vilified for his homosexuality because of his activism, no one at the time even thought of including gays in the civil rights laws he fought for, and this still hasn't happened.
Meanwhile, Barack Obama's career and life environment are products of Rustin's dreams and plans. Barack was born in 1961, shortly before the civil rights laws were passed starting in 1964. He thus lived nearly his whole life under their protection. Under the statement that the United States did not discriminate based on race, he grew up and dreamed. And he is now president a second time, keenly aware of this context, having courageously pledged his own commitment to equality for all countless times. He has brought us here, and we him, in an interesting twist of interconnected legacies and cultures.
Given this magic convergence, the pursuit of full federal equality for the LGBT movement is a matter of moral imperative. Piecemeal goals are simply not an alternative to the pursuit of equality as a matter of dignity, for equality is not just a word or a set of laws. Equality is a fundamental element of what the movement philosopher Harry Hay later described as "subject-subject" consciousness (i.e., the way we regard one another, seeing one another as human beings, of inherent worth, so that in our mutual recognition we see beyond the exterior to the interior where we are all one). It's what he sought for us, for us to be seen simply as human beings, like all others, a far cry from the abuse we knew and know. This has been our quest, and only the pursuit of full equality can truly call this question for ourselves and society. And that time has come.
Happily marking the occasion, Nov. 6, 2012, was a great gay election by all measures. After six decades of activists and marches and elections and self-destruction born of despair, millions of LGBT Americans voted for something huge. After centuries of abuse and denigration, suicides and misery, millions of LGBT Americans voted specifically for their own liberation. And after waiting endlessly for our societal embrace, the American public finally elected a president knowing his commitment to LGBT dignity, once an unfathomable dream, was his plan. That is a mandate.
Empowered with perfect potential, President Barack Obama and the 113th Congress face a turning point in history, and both need to step up. Obama's supporters want much bolder action from the president in a second term. Similarly, Congress's low approval ratings, and the loss of minority voters, instructs a course change in the Republican Party on at least immigration, women's issues and LGBT rights, where the future vote and history's judgment is quite clear.
We all know we did not elect President Obama to a second term to do small things, but there is no guarantee that Obama or the LGBT mainstream groups will pursue full equality or anything at all in the new Congress. So right now the LGBT community has a choice. Are we going to insult ourselves by asking for less than equality? Are we going to waste this historic moment by seeking only partial protections that still leave us as second-class citizens? Or are we going to seize the power of the moment, ripe for justice, and lead our own liberation?
For the National Equality March in 2009, 250,000 of us descended on D.C. demanding full federal equality, and 11 days later we had hate crimes legislation, the first time sexual orientation and gender identity was mentioned by federal law. In 2011 a suicide survivor walked on foot across America for equal civil rights, prompting 11 mayors from West Hollywood to Salt Lake City to Austin, New Orleans, Biloxi and Tallahassee to lead the call for LGBT civil rights from Congress. And in 2012 popular support for our rights is accelerating far beyond our legislative goals, over 40 leading grassroots organizations are leading the call for full equality in the 113th Congress, and we have Barbra, Oprah and Gaga on our side! So let's go!
Of course, this is President Obama's game to lead. Thankfully, Mr. President, I know you want to do this. To go big. To end our plight. To be a transformative president. So just wave the rainbow flag and we'll get to work. We've got your back, and you know that now. Equality next!
We’re spilling the tea on all the queer news that matters to you. Learn more