THE BLOG
03/18/2010 05:12 am ET Updated May 25, 2011

Out And About: LGBT Legal -- The Call of the New Decade

The views expressed in this column are solely those of the author and are not necessarily those of McDermott Will & Emery LLP.

2010 sounds like a futuristic place way over there and yet, here we are. The completion of a decade. What progress has been made and what have we learned?

2009 marked the 40th anniversary of the Stonewall Riots, when gay patrons of this Greenwich Village bar fought back during an unprovoked police raid "sparking the gay revolution." This was the start of something much more than annual parades and expressions of pride: this was the birth of a civil rights movement focused on social justice and equality under the law.

Looking at the Lesbian, Gay, Bisexual and Transgender (LGBT) Movement today the glass might look half empty. The FBI reports that hate crimes based on sexual orientation increased by 11 percent last year. The National Coalition of Anti-Violence Projects has reported a trend across the country demonstrating an escalation in violence against LGBT people, and there are many examples that support this trend. This summer, two transgender women, Leslie Mora and Carmella Etienne, were viciously attacked in Queens, New York on two separate occasions.

Also in Queens this fall, Jack Price, a 49-year-old man was beaten nearly to death for being gay, by two 20-somethings who shouted hateful epithets during their attack. After he regained consciousness Mr. Price reportedly said, "I don't understand how someone can do this to another human being." Me neither.

In September, armed members of the Atlanta Police Department's special force known as the "Red Dog Unit" dressed in paramilitary garb, rushed the Atlanta Eagle, a gay bar. Police shoved patrons to the floor while shouting obscenities and anti-gay remarks at them. They handcuffed and kicked some of the patrons, and searched their pockets and wallets for identification violating the men's Fourth Amendment rights prohibiting unlawful searches and seizures. The raid lasted over two hours, and when finished there was not a single arrest of a patron for any crime or violation. Is the 2009 Atlanta Eagle incident not eerily reminiscent of the 1969 Stonewall Inn raid?

In November, 19-year-old Jose Mercado was murdered by 26-year-old Juan Martinez Matos in Puerto Rico. Matos had been out looking for a female prostitute when he met Mercado, who was dressed in women's clothing. When Matos later realized Mercado was a man, he stabbed Mercado, decapitated him and burned his body. Matos has been charged with murder, but not as a hate crime, despite repeated confessions that he killed Mercado because Matos "hated gays." Why is this very clear case of hatred not being prosecuted as a hate crime when Puerto Rico has had a hate crimes law on the books since 2002? And what does it mean that federal authorities are merely monitoring this case as a "possible" hate crime in view of the recently enacted Matthew Shepard and James Byrd Jr. hate crimes legislation?

Similar episodes of violence and hatred against LGBT people are reported elsewhere in the world. Recently in London there was a number of highly publicized crimes which left gay men dead, paralyzed or suffering from significant injuries. A well-known Honduran gay activist was kidnapped and then murdered in December following months of murders, rapes and other assaults of gay and transgender people in Honduras.

Earlier this month, Uganda shocked many with news of its proposed anti-gay legislation which mandated the death penalty for certain LGBT people. Representatives of the World Council of Christian Churches have publicly condemned this hate-filled legislation as violative of Christian teaching, and the Ugandan government has said that it will likely eliminate the death provision. Uganda will however, maintain the life imprisonment penalty for gays convicted of "homosexual acts" for, in the words Nsaba Buturo, whose title of Ethics and Integrity Minister appears something of a misnomer, homosexuality is a "moral perversion that must not be allowed to spread."

These examples of violence, discrimination and human rights violations underscore the view that the glass remains half empty for LGBT people worldwide. In the U.S., gays may still be expelled from the military despite risking their lives to protect the country because of the federal policy known as "Don't Ask, Don't Tell." LGBT people remain without federal workplace protection against discriminatory employment termination, and our relationships are still not accorded the universal acceptance and legal safeguards given to opposite-sex married couples.

Fortunately, we have also seen progress in the past ten years and these advances must not be undervalued.

In 2003, the U.S. Supreme Court struck down a Texas sodomy law in Lawrence v. Texas, finding a constitutional due process right of sexual privacy for consenting adults regardless of sexual orientation. The Lawrence decision resulted in the crumbling of criminal sodomy laws throughout the country leading legal scholar Lawrence Tribe to describe it as the "Brown v. Board of Education of gay and lesbian America."

This was the decade that saw gay people raised as religious leaders. Gene Robinson was confirmed as the first openly gay bishop in the Anglican Communion in 2003. Six years later the Reverend Mary Glasspool, a lesbian priest, was named a second bishop in the Episcopal Church. And in northern California Lisa Larges was ordained as the first lesbian minister in the Presbyterian Church.

LGBT people continued to emerge as political leaders during this decade. This year saw the election of Annise Parker as the first openly gay mayor of Houston, Texas. While a first in Houston, Ms. Parker is not the only gay mayor in the country. David Cicilline of Providence, Rhode Island, Sam Adams of Portland, Oregon, Denise Simmons of Cambridge, Massachusetts, (who succeeded Kenneth Reeves, the first openly gay African American mayor in the United States) are all openly gay. According to the Gay & Lesbian Victory Fund, openly gay politicians have been elected to positions in city and state governments in Arizona, California, Florida, Georgia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Virginia and Washington. Openly gay individuals have taken their place in our federal government as well, some of whom were appointed by President Obama who has spoken of his "unwavering" commitment to supporting LGBT people and our families.

And it was President Obama who addressed nearly 3000 people at this year's Annual National Dinner of the Human Rights Campaign, and promised that "you will see a time in which we as a nation finally recognize relationships between two men or two women as just as real and admirable as relationships between a man and a woman."

Which brings me to marriage equality. Despite continued resistance to same-sex relationships by many Christian conservatives and other opponents, we have witnessed marriage equality for LGBT people in jurisdictions all over the world.

In 2003, Massachusetts became the first state in the U.S. to recognize the constitutional right of same-sex couples to marry. Same-sex couples may now marry in Connecticut, Iowa, Massachusetts, New Hampshire (as of January 1, 2010), Vermont and the District of Columbia. Marriage equality was won in California in 2008, when the state's supreme court recognized the constitutional right of marriage for LGBT people. The controversial voter referendum known as "Prop 8" subsequently eliminated this right, but 18,000 same-sex marriages already performed were upheld.

In May 2009, Maine's governor signed a freedom to marry law that permitted same-sex couples to marry in that state which was later overturned by a Prop 8-like voter referendum.

Other states in the country such as Nevada and New Jersey have broad legal protections for LGBT people in the form of domestic partnerships and civil unions, and still others now recognize same-sex marriages legally entered in foreign jurisdictions.

Same-sex couples may now marry in the Netherlands, Belgium, Canada, South Africa, Norway, Sweden, and Mexico City. Just last month, a judge in Buenos Aires, Argentina granted a same-sex couple the right to marry.

In the U.S. there are several lawsuits challenging the federal Defense of Marriage Act (DOMA), which discriminates against same-sex couples by permitting states to refuse to recognize valid civil marriages of LGBT people, and defines marriage as the legal union between a man and a woman. The Respect for Marriage Act, which was introduced in the House this fall, will repeal DOMA in its entirety if it becomes law.

We are making progress toward LGBT equality. But we have not yet evolved as a society to the point where we have implemented a compassionate, non-judgmental, "live and let live" mindset that will lead to full recognition of the civil rights of LGBT people and those in other marginalized groups.

The New Yorker recently ran an article on Caster Semenya, the South African runner who won the gold medal at the 2009 World Championships in Athletics. Ms. Semenya's gender was called into question following her win, and she was required to undergo gender testing. The article posited the following questions: What if we were to admit that we don't know the difference between men and women? Will we not then start to wonder about the way we've organized our entire world? To take this inquiry to the next level, what if we are not defined by our gender, sexual orientation, religion, ethnicity and other differences, but rather by our commonalities? Where would the hatred go?

As this decade ticks to its close, I am left thinking about fear. Racism, heterosexism, misogyny and xenophobia are still fueling our lives and shaping our world, and the common denominator is fear. This fear, says Bishop Gene Robinson, has driven us to stop listening to one another. "Fear is a terrible thing...it is the opposite of faith", writes Robinson in his book, In the Eye of the Storm. Perhaps the call of the new decade will give us the strength to push beyond this fear, listen generously to those we perceive as "the other", and come together to create something extraordinary. Surely Coretta Scott King's wisdom applies to our time: hate is too great a burden to bear.