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Four Decades Along the Rainbow Road

Monday, November 02, 2009

Off to a Good Start

Federal action on hate crimes is wonderful news and long overdo, but the harder legislation is down the road.

By Steve Charing

It took over 10 years since the brutal murder of Matthew Shepard and the dragging-to-death killing of James Byrd, Jr. for substantive action to be taken. But when President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law last week it represented the first time the federal government provided protections to LGBT Americans.

What a difference it is in having Barack Obama as president instead of George W. Bush. The inclusive Hate Crimes bill that added sexual orientation to the list of categories protected by the legislation was never going anywhere when Congress had last considered it two years ago. President Bush announced in advance that he would veto it.

Conversely, President Obama stated throughout the presidential campaign he would support such a measure. He reiterated that during a number of speeches to lgbt activists since taking office. He quickly signed it into law and spoke eloquently in front of Judy and Dennis Shepard among others at a White House reception following the signing.

"You understood that we must stand against crimes that are meant not only to break bones, but to break spirits — not only to inflict harm, but to instill fear," the president said to the gathering. "You understand that the rights afforded every citizen under our Constitution mean nothing if we do not protect those rights — both from unjust laws and violent acts. And you understand how necessary this law continues to be."

Indeed, lgbt Americans are victimized by bias-related crimes at a disproportionate rate than the general population. President Obama cited FBI statistics in which there were 12,000 reported hate crimes based on sexual orientation over the past 10 years. Imagine the number of incidents that went unreported.

Critics, who for reasons that are incomprehensible other than being pure libertarian at best or homophobic at worst, opposed the legislation. They call it "thought police." We hear that "some people are more equal than others," according to one unidentified dim-bulb blogger in the Baltimore Sun. Others scoff at the fact that the hate crimes provisions were tacked on to a Defense appropriations bill and would not have succeeded on its own merits.


But the outcome is all we had wanted, and we will take any victory we can get. It finally put gay and lesbian Americans on an equal footing as other citizens when it comes to federal protections. One never knows if he or she will be a victim of a hate crime based on sexual orientation even in a more improving environment for LGBT folks.

The late Senator Ted Kennedy was a champion of this cause, as were the tireless efforts of the Shepards. And, of course, there were many others. It still was a tough go to get it done. We needed a change of administrations to accomplish this feat, and we should all be grateful for its support.

As difficult as this was to finally pass a comprehensive hate crimes bill, the other boilerplate initiatives advanced by lgbt activists and others are going to be much tougher. The Employment Non-discrimination Act, popularly dubbed ENDA, is next on the horizon. Employers in over half the states can legally fire an individual simply for being gay. In nearly 40 states the same can be done to a transgendered person.

Languishing in Congress for over three decades, the measure would make it illegal for employers to discriminate against individuals based on sexual orientation or gender identity. This includes firing, refusal to hire or refusal to promote lgbt employees. The House Education and Labor Committee recently convened a hearing on the transgender-inclusive ENDA [H.R. 3017], so ENDA is in motion once again.

Opponents attack the bill for the "vagueness" in the language that would spark much litigation. And religious groups, who already have enormous sway in government, oppose it lest religious organizations be forced to compromise their beliefs. Memo to religious groups: the bill contains very strong protections, so don’t sweat it.

The repeal of "Don’t Ask, Don’t Tell" is also in the hopper, and President Obama pledged publicly and repeatedly that he is sympathetic to the repeal and will make it happen. The challenge of getting this done is not rooted in public opinion. That is because the country is overwhelmingly supporting such a change. To be sure, recent polling data suggest that as many as 80 percent of Americans support repeal.

Resistance is embedded throughout the military, whose officers and NCOs are still comprised of largely conservative Southerners and rural folks who aren’t welcoming of gays and lesbians in the ranks. The top brass knows this and fear an insurrection of some kind, which is not a good thing when we are fighting two wars and have assumed the role of world policeman. That’s their mindset.

Why President Obama is hesitant to establish a timeline to the repeal effort is understandable. He needs to fight two wars himself: one is with members of Congress who have a large military representation in their districts and the other with the military itself to convince them that discrimination has no place in the Armed Forces and that previous social changes to the military structure were opposed but then adopted with no lasting ill-effects.

This is the educational process that needs to take place. And that’s why it cannot be pinpointed as to when it will happen. As I and many others have suggested before, the President could issue a "stop loss" order to prevent further discharges based on the policy. That sets the right tone. It demonstrates his commitment. And it prepares the legislators and the military that the end of "Don’t Ask, Don’t Tell" is near.

When these other legislative initiatives succeed, and they will, we could then try to wipe out DOMA—the Defense of Marriage Act. That’s going to be the hardest to accomplish, especially if the Administration keeps defending it in court. Let’s get these other measures passed first, for that will push the momentum further for the repeal of DOMA. The Hate Crimes bill was a good beginning.
Photo credit: Judy Rolfe and courtesy of Human Rights Campaign

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