Is there a Single, One-Stop, Equality for All, Federal Solution?

I’ve been hearing a lot of talk lately about this idea that we should demand a single federal solution for equality. I’ve heard it from donors, I’ve heard it from Equality March organizers, and I’ve heard it from angry lgbt Americans.

Much as that sounds like a great idea, equality is not going to happen that way.

A single federal solution is simply not possible. Here’s why.

1. The separation of powers between the federal and state governments means that states reserve all the powers not granted to the federal government by the Constitution. This means that states hold the power to regulate marriage and family matters, a power upon which the federal government has been loathe to intrude. When the federal government does act, it must rely upon constitutional protections (like equal protection or the right to due process) as grounds for regulating state rules or behaviors. And while the federal government also may use the power of the purse (tying highway funds to higher age limits for buying alcohol, for example), it is unlikely to impose new rules that don’t already have support or precedent in the states.


2. No historical precedent exists. Now, this does not mean that we couldn’t or shouldn’t try to create a new precedent. But it would be an uphill struggle. We could not do it in the courts (where cases are based on actual circumstances of individuals and must generally be limited to the most narrow, specific ruling available to resolve the litigated issues). We would have to do it legislatively. But see #4. Achieving equality for women or black Americans – the movements we most often look to for inspiration – did not happen with the passage of a single law covering voting rights, equal pay, status as property of whites/men, employment discrimination, housing rights, health disparities, and so on. Inequality breeds a whole range of harms, and to try to address all of them in one bill would fail to adequately address each of them. See #3. You think the health care legislation is complex?


3. Politics requires compromise. We may not like it, we may believe that equality should brook no compromise, but the fact remains that political maneuvering for power is how our democracy is implemented every single day. We can rail against it, or we can educate ourselves about how to navigate through the egos and fear tactics and cynicism and favor trading and all the rest so that we can actually achieve the change we seek. We must understand that politicians do not lead, they follow. Demonstrations and marches are important because they increase our visibility and force politicians to think about our issues. But we still have to get votes for our legislation. Unfortunately, the courageous politician is an exceedingly rare creature. Add to that the politics in our own movement. Plenty of folks love or hate particular leaders in the movement (especially those who lead movement organizations), but guess what? Those leaders are simply a microcosm of the larger community and we, too, have intense disagreements about which strategies are best or where we should prioritize the allocation of resources. So compromise is required in our own community in order to move forward.


4. We can’t amend the Civil Rights Act of 1964. This is a proposal I’ve heard many times, and on the face of it I think it’s a great idea. Why wouldn’t we add “sexual orientation” and “gender identity” to a bill that prohibits discrimination based on race, color, religion, sex, and national origin? It’s a brilliant and simple strategy! Unfortunately, it’s really not. The fact is, civil rights laws passed after this great Act have been subject to attempts (many successful) to water down the kinds of protections they provide. So, for example, we have a pretty big religious exemption in ENDA that many of us don’t like but that we know we have to include if we are going to move this bill forward at all. And if we tried to amend the Civil Rights Act, we would certainly see amendments and exemptions to our simple, brilliant proposal that would actually weaken the law. Because of this, some of our strongest allies in the civil rights community could not and would not support us in trying to amend this law. And if leaders in the civil rights community actively opposed us in this approach, we would simply be unable to get the votes we needed to pass our proposal. So – we could try doing this, but it is not really a promising use of our resources or political capital.


5. Existing proposed legislation has momentum now and multiple bills are already lined up for passage. The Employment Non-Discrimination Act is currently moving through Congress and, if we all do our part, it should pass this year. Hate crimes legislation has had a hard road but it will also pass soon. The repeal of Don’t Ask Don’t Tell is inching forward and I expect to see it happen next year, hopefully in the spring. We are actively building support right now for immigration law reforms to end discrimination against lgbt families, as well as laws to extend domestic partner benefits to federal employees and to repeal the Defense of Marriage Act. Even if you think I’m wrong about everything else I’ve said here, this is not the time to abandon legislation that our community has been working on for years.


6. Assuming, for the sake of argument, that we actually could pass an all-purpose federal equality law, we will still need state laws to truly achieve equality. ENDA will be a great step forward for our community, and it will protect millions of American currently protected under no other laws. But it won’t actually cover everyone. Small businesses, for example, will mostly be exempt from ENDA based on the size of their staff. In most states with employment protections, more businesses are required to comply so millions of workers not covered by federal law are actually covered by state law. And even if we repeal DOMA, we still have to get marriage in as many states as we can if we are to have any hope of winning a court challenge to the constitutionality of state DOMA’s. In the American version of government, state and federal legislation may pass independently, but its impact is most often felt in the application of an interconnected web of laws.

In this country, democracy works in something of a circular pattern. Big social issues aren’t tackled first in our nation’s capital. Instead, they bubble up from our local communities, where the harms are closer to home and citizens can work to get their local governments to address those harms. State government action often follows, learning and improving upon strategies already implemented locally, and expanding protections across the entire state. When enough states have addressed a particular issue, the national understanding of that issue will begin to shift, so a critical mass of policy changes or a social tipping point is reached. Then we see the federal government begin to take action. Finally, the action at the federal level will reach back down to the state and local level in places where we have been unable to make local and state policy changes.

Or, a law is passed and the courts must rule it constitutional or not. The legislature may have to take action again. Or litigation is filed, and the outcome of that case may spur action by the voters. That’s the beautiful thing about democracy – there are many approaches we can take to changing public policy. Of course, that means we may also be attacked on any level (witness Kalamazoo, Maine, Washington state, and Congress generally).

My point is simply this. We will not achieve equality by abandoning our work at any level of the political process. We must continue to increase the pressure to achieve the promise of equality under the law at all levels and in all branches of government. There is no magic bullet. Our strategy must be focused while also casting a very large net. And that’s how we will finally achieve equal protection under the law.
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State Blog Round Up

At Michigan Equality, an intern reflects on her summer.

From Basic Rights Oregon there's a post on their great fundraiser with Kate Kendell of NCLR.

Equality Arizona highlights Colorado's Sent(a)Mental Project.

On Equality California's blog a guest editorial makes a strong case for 2012.

Equality Florida notes who has (and hasn't) cancelled homophobic Buju Banton's performances in Florida.

The Tennessee Equality Project supports the upcoming National Equality March on Washington

The arguments for and against marriage equality are covered at Equality North Carolina.

And Fair Wisconsin does some traveling. read on

Introducing The Equality Agenda

By Toni Broaddus, Equality Federation Executive Director

In its September cover story on President Obama’s progress on gay rights issues, the Advocate notes that

“Groups like the Equality Federation…have organized grassroots work that’s delivered unprecedented progress with staggering speed toward the goal of marriage equality…”

We are pleased to be noticed. But even when we don’t get in the big stories, you can bet we are working to knit together the strongest and most strategic network of professional organizers that the lgbt equal rights movement has ever seen.

We are not leaving our equality up to chance. State leaders have an agenda – we call it The Equality Agenda. It’s a state by state plan for how we can achieve the most victories and create the strongest possible momentum for achieving equal rights.

Stay tuned over the next year and we’ll share that Agenda with you. We’ll alert you to opportunities to make a real difference in the communities and on the issues you care about.

So, let’s get this Agenda started with some key state strategies and campaigns.

In Maine, volunteers are hard at work to prove that this movement can and will successfully defend marriage equality. A victory in Maine is critical not only to protect the rights of that state’s families, but also to provide the momentum for success in New Jersey and New York in the next year. We have not yet won marriage at the ballot box, and this is our chance to do it.

To win, we need your help. Donate whatever you can to the campaign now. Today. Whether you can give $10 or $10,000 dollars, do it here now. Early money wins campaigns. Your money will help win this campaign.

Maybe you were thinking about going to DC to meet up with other activists on the Mall. My advice? If you want a life-changing experience, go immerse yourself in a campaign for a week. Make phone calls, knock on doors, help with community meetings, stand on corners with campaign signs. You can do this in October in Maine. It’s called Volunteer Vacation and it’s one of the best things you’ll ever be glad you did. Plus you get fall in New England… what could be better? Sign up!

In California, winning back the right to marry is going to take longer – there are a lot more voters that we have to persuade and we have to do it through one-on-one conversations. Equality California spent the past several months talking to lgbt community members and groups, POC community members and groups, pollsters, seasoned campaign consultants, and donors. What they heard convinced EQCA to recommend that our community wait until 2012 to go back to the people for a vote on marriage equality.

Read the EQCA Report. This is one of the most thoughtful strategic documents that I have seen in this movement. It is certainly unprecedented in that it is a strategy openly shared with the community for discussion and debate. The evidence is in the report, check it out.

But as we always say at the Federation, marriage is not our only priority. We need to defend a Kalamazoo ordinance that bans discrimination against gay and transgender people. We need to put an end to this attempt by the intolerance wing of the Republican party that seeks to derail equality by sensationalizing the lives of the transgender members of our community. We have to draw a line in Kalamazoo.

So many ways to get involved! Isn’t it exciting?

But wait, there’s more. The Equality Agenda is a road map to what we can do over the next three years: twenty states will be working to pass nondiscrimination laws, including several states that will finally include gender identity in existing laws; twenty-one states will be working on legislation that protects LGBT youth and educates the public about the very real harms of bullying and harassment in our public schools; seventeen states are working to pass relationship recognition laws that protect our families and fourteen will be defending their state’s citizens from attacks on our families.

We have work to do at the federal level, too. Have you talked to your own representatives in Congress about the hate crimes bill, ENDA, Don’t Ask Don’t Tell, DOMA or the Uniting All Families Act? All of these bills are part of The Equality Agenda. Sign up for Equality Federation Action Alerts and we’ll let you know when an email to your federal representatives will make a difference and help move us one step closer to equality.

Don’t forget – August is the time of year when our Senators and Representatives come home to our communities and meet with the people they work for. You are a constituent – call up your representative’s office and schedule an appointment. Take your friends and neighbors – let your electeds know what you expect of them. Tell them your story.

Aren’t sure who represents you? Click here to find out. Don’t be shy – speak your mind to someone who has the power to vote for your equality.

And while you are breathlessly waiting for the next installment of The Equality Agenda, find out what’s going on in your own state. I’ll bet there are opportunities to volunteer, to give, to speak out, to participate. Your state equality group needs you – the Federation can help you get connected. read on

"No Excuses. No Delays." Do we really mean it?

by Nadine Smith - Equality Florida

At a recent speaking engagement, I asked a group of people what the world would be like if from the day they were born prejudice had never touched their lives.

No homophobic bullying in school. Supportive families at homes No trans-bashing humor on TV.

No workplace discrimination. Equal treatment of all families regardless or orientation or gender identity.

No closet, ever, because you had never, ever needed one.

Most of the people responded by talking about new laws that would be in effect but they struggled to name the deeper, more personal impact on the texture of their daily lives.

A few talked about what they would no longer fear but struggled to articulate what affirmative would replace those fears.

And one man wept and said it broke his heart that he could not imagine, even for a moment, what his life would have been without the constant presence of bigotry and hatred he'd endured for more than 60 years.

I encourage everyone to try this exercise because it is surprisingly difficult, and because I believe it is the pathway to our most potent tools in response to government-imposed second class citizenship:

A Sense of Urgency and the Willingness to Sacrifice to harness the transformational power of living "as if." "As if" the laws had already changed. "As if" society were just.

Sitting at a lunch counter that bans your presence is living "as if". Keeping your seat when ordered to relinquish it to someone the law has designated your superior is living "as if."

As a child I was told that Rosa Parks was tired and fed up one fateful day and decided right then and there that she would not give up her seat. I was impressed by her courage.

Later, when I learned that her protest had been contemplated at length with the consequences fully measured, I was inspired even more deeply by her willingness to intentionally sacrifice her freedom and safety to make the country confront the ugliness of Jim Crow.

So where are the places where we contemplate the consequences of living "as if" equality had already arrived. Housing discrimination, workplace discrimination, adoption/ custody issues and hate violence are constant threats in LGBT lives, but not in inevitable or predictable ways. Where are the "sit -in" opportunities for the LGBT movement that can expose the contradiction between what our fellow Americans believe they stand for and what they allow to be done in their name?

Certainly discrimination in marriage laws and the military provide the most direct opportunities. These are the places the law defines us specifically as unequal, where we can make a reliable appointment with discrimination and be certain it will show up right on time.

Servicemembers who come out while on active duty and fight for the right to continue to do their jobs are a model for this kind of personal commitment and sacrifice. They decide not to participate in their own discrimination. They and the organizations fighting for them are shifting public opinion in dramatic ways.

What is the civilian equivalent? What can we do that demonstrates not only the rhetoric of equality but the personal sacrifice that will awaken the conscience of a nation?

What if those of us who are married lived as if our marriages are universally legally recognized? What if we literally refused to deny our spouse on any form, under any circumstances- ever?

When the government asks legally married couples in Massachusetts to file as 'married' in their state and then mark 'single' on the Federal Tax form, they are asking that couple to participate in their own discrimination so that the government doesn't have to dirty it's hands.
They are literally demanding that we lie, to tell an untruth about our marital status, so they can avoid confronting the difference between the hate-based discrimination they impose on us and the reality of our loving families.

Imagine the ripple effect of government issued letters to married gay couples ordering them to deny their spouse on federal forms.
We have to compel these moments by deciding that our lives will be about honesty and self-respect. Even if it comes at a price.

Rosa Parks showed us that even a one family refusing to participate in their own discrimination will have an impact.

But thousands of us, all of us, can decide to leave the discrimination up to the other side. We can refuse to collaborate in our own discrimination.

If we refuse to deny our spouses even when the law tries to force us to lie.

If we insist on paying our taxes as married couples, even though the Federal government assessed our taxes as though we were single

If we risked being detained at the border by customs agents who insist we mark single on Declaration forms despite the marriage certificate we hold.

With growing frequency I hear from people who are weighing the consequences of refusing to deny their spouse ever again. I find myself asking the same questions as well.

Even with expert legal guidance detailing the risks, a good dose of uncertainty would be inevitable for anyone taking such a stand into uncharted territory.

Am I willing to take that risk? Are you? Are we all?

We march, we lobby, we educate, we protest and we should and we must. But it seems increasingly clear to me that we must now do what civil rights movements have always done: with forethought and solemnity place ourselves visibly at odds with an unjust law to provoke the consequences that can prick the conscience of our country.

Are we willing to pay the price that civil rights movements require at this critical moment when a reinvigorated national dialogue is raging about our place under the law?
Are we willing to compel the government be as ugly as it will have to be to enforce its determination that we are not married?

Are we willing to say we are married, regardless of the costs?

'No excuses, no delays' is a fine rallying cry, but it's one that has to cut both ways.

When we call our on our government to take action we must also call upon ourselves to do more.

In focus groups we hosted several years ago, a panel of straight people who knew gay people said they did not believe discrimination was real or nearly bad as we described it because their gay friends or family would have told them these things. Then, in the all-gay focus groups, participants were asked: Do you share your fears and experiences of discrimination with your straight friends and family? They said "NO, if they cared they would ask." They don't ask, we don't tell and rarely are they required to see with their own eyes the deep harm and real pain inflicted by laws that tell us we are less than our neighbors.

Every civil rights struggle in this country has required people to sacrifice and make institutionalized discrimination so visible no one could avert their eyes.

People stepped forward knowing they could lose their homes, lose their jobs, their safety, They walked willingly toward hateful mobs and police with snarling dogs.

They turned a proposed one day bus boycott into 381 days of solidarity. They sacrificed and the country watched and changed.

Every civil rights struggle in this country has required people to sacrifice.

The country is watching. Are we ready to do the same?

Nadine Smith
nadine@eqfl.org

-- Posted By Nadine to Equality Florida Blog at
5/29/2009 08:55:00 AM

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