Opinion

The Great Debate

ENDA: Next step forward in march for equality

Hanging in my office is the vote tally for the Employment Non-Discrimination Act, sent to me by Senator Edward Kennedy soon after September 10, 1996. That day, I had watched from the Senate gallery as a bill to protect gay and lesbian workers from on-the-job discrimination based on their sexual orientation failed to pass by one vote.

Since that time, we have seen extraordinary movement forward on the Employment Non-Discrimination Act (ENDA) — in public opinion and in the law of the land. We can judge how much on Thursday, when the Senate is again due to vote on a bill that prohibits job discrimination because of sexual orientation and gender identity.

Recent victories in the march toward equality have been historic. This summer, for example, the Supreme Court struck down key segments of the Defense of Marriage Act, which I had seen voted into law 85-14 just hours before ENDA failed. In 2010, Congress passed the repeal of Don’t Ask Don’t Tell, which President Barack Obama signed.

Yet our work is far from over. Protecting America’s LGBT veterans and current military members is an essential measure of the progress of our nation — and one that federal law has ignored for too long. Thursday in the Senate, we have the opportunity to make meaningful progress by passing ENDA.

Most Americans — 90 percent in fact  – believe that this non-discrimination act is already the law. Majorities in every state support it. Democrats, Independents and Republicans alike back ENDA by strong majorities. So it was in the months before the Don’t Ask Don’t  Tell was repealed — 78 percent of Americans supported that move toward equality and fairness.

Court due to make second trip down the aisle

Near the end of his engaging and informative e-book on the Supreme Court’s recent same-sex marriage decisions, To Have and To Uphold, New York Times reporter Adam Liptak makes a prediction: “The day will come when the constitutional question [over the constitutionality of a ban on same-sex marriage] will return to the Supreme Court for some final mopping up, perhaps when the number of states still banning same-sex marriage has dwindled to a score or fewer.”

Though I agree with much of Liptak’s book, I think he’s wrong on this particular prediction: The constitutionality of bans on same-sex marriage will return to the Supreme Court sooner rather than later — and it will happen while more than a score of states  still ban the practice. What the court does then is anyone’s guess.

There’s good historical precedent for Liptak’s prediction. Take the case of poll taxes, which required people to pay money (including back taxes) in order to be able to vote. The Supreme Court in 1937 upheld poll taxes, provided they were not applied in a racially discriminatory way. But states started doing away with them, and the country passed the 24th Amendment to ban them in federal elections.

Republicans won’t embrace same-sex marriage anytime soon

In the wake of Ohio Republican Sen. Rob Portman’s  announcement that his son is gay, and his son’s coming out prompting  the senator to support gay marriage, it has become  commonplace to assert that Republicans are about to flip-flop on the gay marriage issue. Activists on both sides seem to agree. The Log Cabin Republicans triumphantly declared: “If there was any doubt that the conservative logjam on the issue of civil marriage for committed gay and lesbian couples has broken, Senator Portman’s support for the freedom to marry has erased it.” On Sunday, Karl Rove appeared to take leave of his senses when he said he could imagine the 2016 Republican presidential nominee supporting legal same-sex marriage. And with the Supreme Court set to hear a challenge to gay marriage bans this week, many observers are predicting that one or more conservative justices will join with the Court’s liberal wing to overturn the Defense of Marriage Act, and possibly California’s Proposition 8 as well.

On the other side, the Family Research Council’s Tony Perkins has warned that, “If the RNC abandons marriage, evangelicals will either sit the elections out completely – or move to create a third party. Either option puts Republicans on the path to a permanent minority.”

Both sides are getting way ahead of events. I can’t predict the Court’s ruling, but I can predict the Republican Party’s stance on gay rights for the foreseeable future: hostile opposition. Many observers lump gay rights with immigration – an issue on which the GOP has begun to shift leftward – as social issues on which the Republicans must modernize or die. Presumably, the logic follows, they will choose accommodation over death.

Same-sex marriage: Court on the couch

Will Justice Anthony Kennedy’s support for a constitutional right to gay marriage doom the constitutionality of affirmative action and a key provision of the Voting Rights Act?  To answer this question, legal scholars need to know less about constitutional law and more about human psychology.

Consider  last year, when Supreme Court Chief Justice John Roberts, for example, surprisingly sided with the court’s four liberal members in upholding President Barack Obama’s healthcare law against constitutional challenge. It was a stunning choice for the conservative jurist. The reaction of Nate Persily, a leading U.S. election law scholar, was: “There goes the Voting Rights Act.”

At first, the connection between the two cases may seem tenuous. They don’t involve the same issues. The healthcare case was based on Congress’s power to regulate commerce and to tax. In Shelby County v. Holder, heard last month and expected to be decided in June, the court is considering whether Congress’s power to enforce equal rights, especially in voting, includes the power to continue federal oversight of elections in certain states that have a history of racial discrimination.

Same-sex marriage does not threaten birth rates or child-rearing

Several years ago the trial judge presiding over the federal constitutional challenge to California’s Proposition 8 asked Charles J. Cooper, the lead lawyer defending the voter-approved measure, how the recognition of same-sex marriages affected heterosexual couples. Apparently caught by surprise, Cooper, a former assistant attorney general under President Ronald Reagan, candidly answered that he did not know.

Cooper will undoubtedly be better prepared to answer a version of the same question when he appears before the Supreme Court this week. The brief he filed with the court explains that the recognition of same-sex marriage disconnects marriage from procreation and that heterosexuals are less likely to procreate responsibly if gay couples are permitted to marry. The brief cites studies showing that nearly half of all pregnancies in the U.S. are unintended and that children do better when raised by married parents. According to the brief, the institution of marriage was created to address the biological reality that different-sex couples can procreate. In contrast, society does not have a similar interest in allowing same-sex couples to marry because their sexual intimacy does not lead to the creation of children.

There are several reasons why the Supreme Court should reject the effort to defend same-sex marriage bans based on how and when heterosexuals have babies. First, the historical record shows that marriage rates began dropping — and that cohabitation, divorce and out-of-wedlock birth rates began rising — long before Massachusetts in 2004 became the first state to recognize same-sex marriages.

Republicans could join Obama on same-sex marriage

In finally evolving to support marriage equality, President Obama has not only placed himself firmly on the right side of history with respect to an issue of fundamental rights and justice but he has also thrown down the gauntlet for Republicans, especially his presumed challenger, Mitt Romney.

In his comments to ABC News, the president said his attitude toward gay marriage has been shaped over time by voters and members of his own staff “who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together” – who are clearly in love. In other words, the president let the human reality around him shape his personal views and will now lead accordingly – a stark contrast, say, with Mitt Romney, who seems to have little grasp of the struggles and experiences of actual voters and instead rotates his political viewpoints as often as he rotates the cars on his vehicle elevator. In President Obama’s “evolution,” America saw a leader who is not afraid to be wrong and not afraid to change his mind. It’s refreshing.

And now it’s the Republicans’ turn. As Fox News anchor Shepard Smith suggested in reporting the president’s shift, Republicans are “on the wrong side of history.” Indeed. But they have plenty of time to make amends. Republicans should be ashamed enough that theirs is the party that stood in the way of interracial marriage and civil rights. Is that really a legacy the GOP wants to continue into the 21st century? It seems to me the GOP has a choice between courting the open-minded next generation of voters, or continuing to be marred by scandals in which anti-gay Republican after anti-gay Republican is embarrassingly outed and shamed. Apparently this is a tough choice for the GOP, which would rather keep implicitly firing up bigotry than stand firm for equality.

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