Back and Forth

Equality struggle shifts back to Federal arena

By Steve Charing

While the lgbt community and its allies anxiously await the Maryland Court of Appeals ruling on the lawsuit that may ultimately legalize same-sex marriage here, the latest front in the struggle for equality has shifted for now back to the Federal government.

On May 3, the House of Representatives passed on to the Senate the Local Law Enforcement Hate Crimes Prevention Act, (HR-1592), in a bi-partisan vote of 237 to 180. This bill covers crimes committed based on sexual orientation and identity as well as gender, race, color, national origin and religion. The Senate will be considering a similar bill called the Matthew Shepard Act to memorialize Matthew Shepard, the high profile victim of a brutal hate-filled murder in Laramie, Wyoming in 1998. It is likely to pass the measure.

Judy Shepard, Matthew’s mother and a major hate crime legislation activist, Joe Solomonese, head of the Human Rights Campaign and other interested observers were present as the historic vote was taken.

"This is a historic day that moves all Americans closer to safety from the scourge of hate violence," said Solmonese. "Today legislators sided with the 73 percent of the American people who support the expansion of hate crimes laws to include sexual orientation and gender identity."

However, President Bush, in a predictable bow to the religious right that includes a significant number of socially conservative black clergy who have applied major pressure in opposing the bill, threatened to veto the legislation. A White House statement said that state and local criminal laws already provide penalties for the crimes defined by the bill and "there has been no persuasive demonstration of any need to federalize such a potentially large range of violent crime enforcement." The bill would add resources to prosecute hate crime cases and increase sentences.

Less than two weeks prior, legislation had been introduced in the House to prohibit discrimination in employment based on sexual orientation and gender identity. The bill, Employment Non-Discrimination Act (HR-2015) or ENDA, was introduced by openly gay legislators Barney Frank (D-MA) and Tammy Baldwin (D-WI) as well as Christopher Shays (R-CT) and Deborah Pryce (R-OH).

The outlook for passage of this bill is uncertain, to be sure, but I believe it will make it through both chambers and might even survive a presidential veto if "religious" organizations are exempted.

And even before that, in February, The Military Readiness Enhancement Act (HR-1246) was reintroduced in the House of Representatives. This bill would repeal "Don't Ask, Don't Tell" and replace it with a statute banning discrimination on the basis of sexual orientation.

While all these legislative initiatives hold some promise, and the fact that they may pass either or both houses is sign of progress, the role of the Federal sector on marriage equality is less encouraging.

True, with a Democratic controlled Congress the infamous Federal Marriage Amendment will not be brought up. But DOMA—the Defense of Marriage Act—will stay in tact for now. DOMA restricts Federal benefits to same-sex couples and offers the states the option of not recognizing same-sex couples from other states.

(Oddly, nowhere in the "Defense of Marriage Act" does it ban divorces, out-of-wedlock births, poverty, unemployment, domestic violence and myriad other factors that contribute to a successful marriage rate of only 50 percent.)

Of the 18 declared presidential candidates from both parties, Rep. Dennis Kucinich (D-OH), a marginal candidate, supports same-sex marriage by saying that no state has a right to abridge basic rights to privacy. The rest of the Democratic candidates scatter from the issue as if a skunk was dropped from a tree at their feet.

The GOP contenders—and boy is that a weak field—will never support it, but Rudy Giuliani at least backed civil unions. He will have difficulty with that issue plus abortion during the Iowa and South Carolina primaries, so look out for a "conversion" or yet another flip-flop from flip-flop prone Republican candidates.

With political fright preventing even traditional supporters of lgbt rights from taking a marriage equality stand and DOMA forever likely to remain in place, where do we go to secure the same rights, benefits and responsibilities that heterosexual couples receive?

The answer may lie in chipping away at the resistance state-by-state. While many states have passed constitutional amendments, most haven’t. Some have civil union arrangements in place or marriage itself as in the case of Massachusetts. Little by little, rights can be gained at the state level and efforts can be made at the Federal level to secure benefits for same-sex couples from such agencies as the IRS and the Social Security Administration.

"Creating a change at the federal level will take some time," said Dan Furmansky, Executive Director of Equality Maryland who, along with the Maryland ACLU, is in the forefront of the quest for marriage equality locally. "A victory in Maryland for marriage equality will be a tremendous step forward nationally for the marriage equality movement, which is far from over."

He added, "The passage of relationship recognition laws in New Jersey, New Hampshire and Oregon are important steps towards marriage, and Connecticut’s judiciary committee just passed a marriage equality bill. There are baby steps, toddler steps, and giant marathon sprints. We hope Maryland will take home the gold."

The battle for equality will be an evolving process from states to the Federal government and back and forth. Historically, that is how rights are gained, and that’s why it’s important to push hard both locally and at the Federal level.