Somewhat surprisingly, in remarks to the NAACP's 103rd Annual Convention in Houston, Republican presidential candidate Mitt Romney uttered the words "sexual orientation" alongside "race" in his rebuke of discrimination and inequality as broad concepts. Of course, moments later, the expert of mixed messages made clear his commitment to "traditional marriage," to substantial applause. But in this distinction lies the gulf between two major federal policy strategies for our community, which both campaigns and our own movement seem eager to avoid discussing: the two prongs of full federal equality.
At the federal level there are two main parts to equality for our community. The first involves equal federal nondiscrimination protections under the civil rights laws, which cover every area of regular life except marriage. Here we need only add "sexual orientation and gender identity" alongside "race, color, sex, national origin, and religion" to have full protection by our government in the communal realms of life, like housing, employment, social services, credit, public places, government programs, schools, etc. While these protections have long been in effect for all other Americans, LGBT people are not yet protected by a single one of these federal nondiscrimination laws but have long filed a variety of separate bills seeking partial inclusion here and there.
The second part would involve adding a new federal law outlawing discrimination in marriage in all 50 states. It would repeal and replace DOMA, which sanctioned such discrimination, with a policy outlawing it in line with the U.S. Constitution under the Commerce Clause or the 14th Amendment. Until recently, this idea had not even been proposed, out of fear of a possible backlash, but society has evolved tremendously, and this is newly viable terrain, for sure.
With these two parts achieved, LGBT Americans would have full equality under the law, and the United States would then be in compliance with its international human rights treaties, our Constitution, and the principles upon which the nation was founded. At present, however, our own movement lags behind the times, like most political institutions, afraid to even ask these end-game questions. But the Republicans are changing the landscape, catching up to the LGBT civil rights tone of the nation, but to what extent?
With Romney signaling that he supports nondiscrimination for "sexual orientation" though not marriage equality, it's valid to ask whether he could possibly support equal civil rights for our community, shy of including marriage. We don't know, and it doesn't appear that our movement leadership has any intention of asking. In fact, we don't know the answer from candidate Obama, either, because the LGBT movement is, again, not asking. In fact, no mainstream LGBT organization is holding either candidate to the test of full or even partial equality.
So we are left to wonder: What is in store for the LGBT community if Obama wins, or if Romney wins? The passage of ENDA and the repeal of DOMA are the two leading legislative goals, both about 17 years coming. DOMA is facing four federal court decisions holding part of it unconstitutional, the part that precludes federal recognition of same-sex marriage. It may well go down in the Supreme Court by next June, but probably without resolving the issue of federal marriage nondiscrimination.
The other main goal, ENDA, which covers employment nondiscrimination under Title VII of the 1964 Civil Rights Act, has also been somewhat accomplished already by the Equal Employment Opportunity Commission's (EOCC) decision in Macey v. Holder, which held that "sex" covers gender identity (and could well cover gay, lesbian, and bisexual cases, according to EOCC Commissioner Chai Fieldblum, who explained this in a video from the White House Pride reception). While this is not secured by statute, which we need, between these two, our federal wish list of only ENDA and DOMA is pretty light, and some might say achieved, in large part. So what are we voting for?
No candidate wants to give specifics about the future that could be used against them, it seems, so we may never hear them make public proclamations on these issues. However, we should still have them vying for our vote and speaking to our community directly. But we really don't have that kind of leverage, partly because our movement is directed by retiring Barney Frank, a partisan Democrat, and HRC, which endorsed Obama in May 2011. So, as in decades past, we continue to surrender our electoral power, despite having an extremely diverse voting community, one that voted almost 30-percent Republican in the 2010 midterms and could possibly deliver large numbers of conservative family members and allies yet to be tapped in ways a full equality vision might.
This is the time when, if we were aggressive and independent, we would be pinning them both down for more, dangling our vote instead of promising it yesterday. A few major donors did this somewhat, in forcing Obama to actually endorse marriage equality before giving to his campaign wholeheartedly, but there's no attached legislative plan to actually do anything federally about marriage discrimination, so it rings hollow and forecasts nothing. Meanwhile, Romney is making overtures hinting at nondiscrimination and equality, but we have no room in our DNC-lockstep game to play this to our advantage.
We could talk all this out in community, in a national convention like the NAACP has, but unfortunately, our leading advocacy group, the Human Rights Campaign, does not have annual meetings open to the community and is run by private boards. And the other key LGBT group, NGLTF, has an annual conference crafted to avoid community-wide strategic planning, which already happened for 2012, in any event, attended only by lower-level Obama administration representatives who promised nothing.
Over all, our movement has no public process where strategy is even discussed, other than private get-togethers of major donors. And this, of course, helps to explain the fact of our political powerlessness, as held by Judge Walker in the Prop 8 case and repeated by Attorney General Holder in other filings. We are playing a one-party game in a two-party system, and after 60 years of struggle, we cannot even secure a public address by the candidates for office.
As a result, we will not likely see Romney or Obama on national television addressing our community's plight, vying for our votes, or pledging to secure our basic human rights. And while there is cause for great hope in Obama, we have no idea what to expect to receive in return for our vote or support, which we offer nonetheless, though not as passionately as we might if full equality were in play.
Ideally, we might want to trust our self-appointed leadership and their insider maneuvers, but as it stands, HRC and NGLTF are not even on record with their own organizational support for full federal equality, with or without federal marriage equality, and neither is a single LGBT elected official or candidate. So let's just hope we'll get more than we ask for, which is rare in politics, whomever wins.
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