Monday, October 27, 2003

Gay marriage, gay rights, and the hate-crime nexus

John Lewis, the Georgia congressman and a major civil-rights figure, wrote an eloquent and important essay that appeared in the Boston Globe the other day titled, "At a crossroads on gay unions":
We are now at such a crossroads over same-sex couples' freedom to marry. It is time to say forthrightly that the government's exclusion of our gay and lesbian brothers and sisters from civil marriage officially degrades them and their families. It denies them the basic human right to marry the person they love. It denies them numerous legal protections for their families.

This discrimination is wrong. We cannot keep turning our backs on gay and lesbian Americans. I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I've heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred, and intolerance I have known in racism and in bigotry.

Atrios followed up with a provocative post that said in part:
Now, I'm all for practical politics -- if you can't win elections all the principles in the world don't matter much. But, it isn't Democrats who are making this an issue, frankly, it's Republicans. They're making immoral homos the centerpiece of their '04 election strategy. Democrats can either be on the right side of this issue, or the wrong side. If they're on the wrong side, it won't win them any votes. Just as MSNBC can't out-Fox Fox, the Democrats can't out-gaybait the Republicans.

There are limits to this thesis, it should be noted; I'm certain that a few political pollster types will argue that while coming out for gay marriage will not gain you any votes, it will lose them for you.

I think they are wrong and Atrios is right -- though of course, it all depends on how the Democrats handle their response.

I think if they mealy-mouth the issue of gay marriage (a la Bill Clinton's absurd "don't ask don't tell" compromise on gays in the military) they will in fact lose votes on the issue.

But if they frame the issue in a way that casts into high relief the fetid, steaming bigotry that lies at the core of the GOP demagoguery, then I believe they will gain votes.

The first step, of course, is to be unrepentant and aggressive in support of at least civil unions for gays, following Howard Dean's example (rest assured the presence of Dean in the forefront of the Democratic candidates is a large part of the GOP's decision to attack on the gay-rights front). It will be important to frame it largely as a fairness issue. The campaign really has to zero in on the basic injustice of the ban on gay unions. That highlight alone should be enough to cast into fairly sharp relief the GOP's basic bigotry on the matter.

More to the point, there is another gay-rights-related issue latent out there that would cast a national spotlight on Republican bigotry toward gays -- namely, hate crimes.

There currently sits before Congress a bill that enjoys majority support in both the House and the Senate which would create, for the first time, a bona fide federal hate-crimes law. The bill, which enjoys bipartisan support (its current leading sponsor is Republican Sen. Gordon Smith of Oregon), actually would contribute substantially to addressing the problem of hate crimes in a material way.

There's only one problem: The Republican leadership will never allow it to pass.

And there is only one reason for this: Naked bigotry against gays.

Recent history

The legislation in question, titled the Local Law Enforcement Enhancement Act, originally was drafted in 2000. It has twice passed out of the Senate but has died in the House. It was offered again this summer and currently sits in the Judiciary Committee, under the care of Utah Sen. Orrin Hatch, a longtime opponent of the bill.

The bill's previous history is very telling.

The legislation originally was titled the Hate Crimes Prevention Act, and it was sponsored in 1998 in the Senate by Ted Kennedy, D-Mass, partly in response to the James Byrd in Texas killing that spring, and it picked up impetus that fall with the murder of Matthew Shepard in Wyoming.

It is important to understand that the reasons for the legislation go well beyond two headline-making crimes. Foremost is the general weakness of both state and federal hate-crimes statutes, the latter particularly. Though the 1994 Hate Crimes Sentencing Enhancement Act was the first attempt to provide for federal prosecution of the crimes, it is an extremely limited law, kicking in only if a hate crime is committed on federal property or during the commission of a federal activity, such as voting in a national election. It has hardly ever been used in actual prosecution because of its weakness.

An equally important aspect of the problem with hate crimes is that they represent an unfunded mandate. Because they are special crimes and they present special challenges, training law-enforcement officers in recognizing and handling them is an essential component of making them effective. And yet such training hardly occurs at all in most police departments in America, mainly because the states and the federal government do such a poor job of making it available, even though the politicians at those levels have been busily passing these laws.

The HCPA proposed to address both those issues, the former especially, by rewriting the federal law to expand the ability of federal agents to investigate the cases when necessary, and moreover to bolster the ability of the feds to give local agencies financial and investigatory assistance. Those local jurisdictions, after all, are where the vast majority of hate-crimes cases arise.

However, the bill also included "sexual orientation" among the categories of possible bias motivations. In other words, it expanded the law to make violent gay-bashing a hate crime, potentially a federal one. The religious right, ever alert to the "homosexual agenda" and its evil designs, promptly went to work.

The Family Research Council issued an "Action Alert" warning that the HCPA was a threat to the First Amendment: "Hate crimes legislation could severely restrict Americans' freedom of speech, freedom of thought, and freedom of religion. This legislation would give the government the power to interpret and classify certain speech, thought, theology, and moral belief as unlawful or contributing to crime. Will pastors, priests, rabbis, and other religious leaders who preach and teach against homosexual conduct be prosecuted for inciting a hate crime?"

Nonetheless, the Christian conservatives' campaign against the bill was relatively quiet, indicating their intention to resort instead to conservatives' control of Congress to win. A parade of testimony from both sides -- supporters included the National Association for the Advancement of Colored People, the American Psychological Association, the Anti-Defamation League, and various gay-rights organizations -- was heard over the course of the summer. By that fall, however, it was becoming clear that the bill was fated to linger in the Senate Judiciary Committee, which was then controlled by Hatch.

The Shepard murder appeared to change all that. Suddenly, in mid-October, both senators and representatives found their offices deluged with letters and phone calls urging that the bill be allowed to move to the floor for a vote. For awhile it appeared that public demand might force a vote. But, reportedly under pressure from the Christian Coalition, GOP Majority Leader Trent Lott announced on October 20 that the Senate would not have time to consider the bill before its annual November-December recess. The Republican leadership in the House, curiously, seemed to claim credit for the bill's demise; a memo from the House Republican Conference attacking hate-crimes laws as part of President Clinton's "big-government agenda" called the death of the legislation "a win for conservative priorities."

Despite the setback, however, the legislation was anything but dead. The following March of 1999, identical versions of the Hate Crimes Protection Act were reintroduced in both the House and Senate to great fanfare. The House version had 118 co-sponsors, while in the Senate thirty-one co-sponsors signed on. Vice President Al Gore and Assistant Attorney General Eric Holder both issued statements of support, along with the usual phalanx of civil-rights and gay-rights group. The support for the legislation was even broader than before, including a coalition of law-enforcement officers and prosecutors who argued that the law provided them with vital tools for adequately coping with these kinds of crimes.

Among the early witnesses offering supporting testimony for the bill were the family of James Byrd, and Judy Shepard, Matthew's mother, who observed: "There is no guarantee that these laws will stop hate crimes from happening. But they can reduce them. They can help change the climate in this country, where some people feel as though it is OK to target specific groups of people and get away with it."

The battle thus joined, the religious right pulled out its big guns and began firing away. The Family Research Council opined that "it is unconstitutional to elevate a category of sexual behavior to a legally privileged status," and argued that the law "punishes a criminal who commits a violent crime against a homosexual more severely than if he committed a crime against a non-homosexual."

"We call it the Thought Crimes Act," said Robert Regier, a policy analyst at the FRC. "All people are equal under the law, and no one deserves more protection than another because of their sexual behavior. … Passage of this bill is nothing short of telling us what to think. In effect, it supercedes the jurisdiction of the church. They should leave the judgment of our minds and hearts to God, and let the government judge our actions and behavior."

This time around, the legislation did not stall in the Senate -- rather, it proceeded out of the Judiciary Committee, and proceeded over the summer to move toward a floor vote. In July, it was folded into the Commerce, State, and Justice appropriations bill, approved by a wide margin, and forwarded to the House.

This set off alarms among its opponents, who began working feverishly to block passage in the House, where preliminary estimates suggested it would pass handily. On September 11, 2000, the Christian Coalition released an action alert urging its members to defeat the HCPA, since it would infringe on the "free speech of Americans who view homosexuality as immoral." The Traditional Values Coalition chimed in that "the elevation of such a lifestyle into a protected group is a government endorsement of that lifestyle."

As it turned out, they had little to fear. Lying in wait for the bill were the Republican leaders of the House, particularly Majority Leader Dick Armey and Majority Whip Tom DeLay, both Texans with an oft-articulated animus toward the so-called "homosexual agenda." Despite broad and bipartisan support for the measure even among their own ranks, they managed to maneuver it to death--removing it from the Senate appropriations bill and sending it to the House-Senate conference committee, where it was dropped altogether on a straight party-line vote. Later that month, President Clinton vetoed the appropriations bill in part because it omitted the hate-crimes legislation, but he eventually capitulated and signed a budget bill that did not include the HCPA provisions.

Round Two

However, while this ignominious end for the HCPA left its supporters stunned and shellshocked, the impetus they had gained, combined with how close to succeeding they actually were, kept their long-term hopes alive. They did not, perhaps, quite expect history to keep repeating itself. But it did.

Sporting many of the same, bipartisan sponsors as the HCPA, Kennedy in the spring of 2000 introduced the Local Law Enforcement Enhancement Act. It featured the same amendments to federal laws as the HCPA, expanding hate-crimes categories to include sexual orientation and broadening the laws' investigatory scope. True to its name, it also contained language emphasizing the primary role of local and state agencies in handling hate crimes -- and perhaps just as important, it included funding for federal grants to help local hate-crimes prosecutions, as well as for training law officers and prosecutors to identify and investigate the crimes.

In June, it passed the Senate by a wide margin, 57-42, and proceeded to the House, attached once again to another appropriations bill, this time the Department of Defense Authorization Act. Again, it enjoyed broad, bipartisan support; House members in September passed a resolution by a forty-vote margin (232-192) instructing joint-body conferees to include the bias-crimes language in the DOD bill.

But once again, the bill ran into the tandem team of Tom DeLay and Dick Armey, who succeeded on October 5 in stripping the legislation from the authorization bill.

Kennedy refused to give up, however, and reintroduced the LLEA the following March of 2001, replete with fifty-one original sponsors, even though its prospects in the narrowly GOP-controlled Senate appeared dim. But then, on May 24, Vermont Sen. Jim Jeffords announced he was leaving the GOP and registering as an independent, which suddenly gave Democrats a one-vote majority in the Senate and control of both the committees and the legislative agenda.

For a time, it appeared that a bona fide federal bias-crime law was finally about to become reality. Since it was no longer forced to pass out of the Senate attached to an appropriations bill, it stood a far better chance of passage in the House as well. Kennedy pressed forward with the bill, gradually shepherding it through the Judiciary Committee to the Senate floor.

Faced with the prospects of the bill's passage, the religious right stepped up its rhetoric, denouncing the legislation again as "anti-Christian" and unconstitutional. Some of the fresh arguments raised against the legislation bordered on the bizarre, including intimations of an evil gay conspiracy to destroy America's moral fiber.

In the Senate, the opposition -- which knew it lacked the numbers to prevent passage -- shifted tactics, choosing instead to amend the bill to death. Republican senators began filing numerous modifications ranging from Senator Bob Smith's attempt to add pregnant women to the class of potential victims to amendments regarding defense issues and human cloning. By June 11, some nineteen different amendments had been filed, nearly all of them frivolous in nature.

Democrats decided to hold a vote cutting off debate -- which turned out to be a fatal move. Two of the Republican cosponsors of the bill, Arlen Specter of Pennsylvania and John Ensign of Nevada, reneged on their commitment and voted to allow the amendments to pile up, while another five Republicans who had voted for the bill in 2000 did likewise. In the end, the cutoff failed, and the bill returned to the Judiciary Committee, where it continued to languish.

That November, Republicans retook control of the Senate, and the LLEA returned to the tender mercies of Orrin Hatch. The LLEA was revived in 2003 in the Senate, this time under bipartisan cosponsorship headed up by Gordon Smith. But it remains bound inside the Judiciary Committee, and no prospect is in sight of its ever escaping -- nor, for that matter, of its ever surviving the House in any event.

Frank remarks

Indeed, as Rep. Barney Frank, D-Mass., who would handle the bill in the House should it ever emerge from the Senate, told me in an interview that DeLay would certainly kill it again: "The problem in the House is that the Republican leadership is determined not to do anything or allow anything that’s supportive. And the way the rules of the House work, unlike the rules of the Senate, they’re in total control. As long as the Republicans are in control of the House, you’re not going to see, I’m afraid -- or at least, not for the foreseeable future -- but they won’t allow either the hate-crimes bill or ENDA or virtually anything else that’s supportive of the position of non-discrimination to go forward, and they have total control."

Frank made an important point in that interview:
The Republican leadership -- look, they’re worried about their base, and a large part of their base is very homophobic. Things have evolved. They don’t want to do much gay-bashing anymore, because they know that face has cost them something. But they are firmly against and will never allow anything supportive.

Are they trying to attract the gay vote?

No, but they do know -- well, some of them are, I mean, the Log Cabin people try to basically say, look, they’re not calling us names -- but what they’re trying to do is attract the votes, I think, of people who are gay and very conservative economically. But even more, I think, it’s not so much the gay votes, they know by now that since so many of us are out, what’s at play here are not just gay and lesbian people but millions of our relatives and friends. They understand it’s not a good idea to call somebody’s kid an asshole -- even if the person isn’t happy that the kid’s gay. So they’re really trying to answer to the general public.

Gay rights used to be a wedge issue used by the Republicans against the Democrats -- that is, they would force Democrats to vote on these issues because then they would feel that the general public being anti-gay and the Democratic primary electorate being pro-gay, we would be caught in the middle. Now that’s reversed.

Indeed, the polling data on including gays and lesbians in any kind of federal hate-crimes law is strong across the board. It's one of those issues where the average American, given the right framework and an understanding of the basic issues of fairness involved, knows the right thing to do. And as Frank suggests, there has been a gradual sea change in attitudes about gays -- an especially about bigotry against them.

Were Democrats to play it smart, they would make passage of the LLEEA a major issue for the summer of 2000 -- the perfect countermove to the GOP's desire to play up the gay-marriage issue.

If progressives can make an issue out of the GOP's anti-gay bigotry within the hate-crimes frame, then that same characterization of Republicans should transfer clearly and simply to their behavior on the gay-unions front.

There is a strategic reason, in the end, as well as a moral one, for doing the right thing.

As Atrios suggests, Democrats need to quit toying with the issue and simply get behind it. And a two-barreled front, it should be obvious, is going to be needed to knock down the Republicans' well-laid propaganda plans.

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