Is there a Single, One-Stop, Equality for All, Federal Solution?- 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.
- 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?
- 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.
- 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.
- 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(DOMA). 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.
- 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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