Hutchinson: LGBT victories attributable to independent activism, not party loyalty

by on April 8, 2009  •  In Uncategorized

The always engaging Darren Hutchinson (law prof at AU) argues that the burst of progress in recent days comes from thinking beyond conventional liberal notions of change:

…. GLBT equality movements have engaged in relatively savvy political and legal action, which has led to their recent victories. No other liberal social movement can claim the rapid success that GLBT organizations are currently experiencing.

Labor groups are struggling to get Democrats in Congress to pass the Employee Free Choice Act. Also, the decision by the Obama administration to push the auto industry into bankruptcy and consolidation — rather than giving car manufacturers trillions of dollars like banks have received — will undoubtedly require drastic concessions by labor.

While women's rights groups celebrated the enactment of the Ledbetter Fair Pay Act, the statute really does not guarantee equal pay at all. Instead, it is simply a procedural measure that reinstates the more flexible statute of limitations rule that most courts applied in employment discrimination cases until 2006, when a divided Supreme Court imposed a more restrictive rule. The Ledbetter legislation is an important advance. Nevertheless, while gender equality advocates gushed over President Obama's ceremonial signing of the law, Congress tabled a more expansive proposal that would have relaxed the extraordinarily tough evidentiary burdens on plaintiffs in pay equity cases.

Pro-choice groups are another important Democratic Party constituency. In recognition of their electoral significance, President Obama reversed the "Global Gag Rule" during the early days of his presidency, but it remains pretty clear that he will not seek to reverse the Hyde Amendment and to legalize the use of federal funds for domestic abortion services.

Blacks and Latinos voted heavily for President Obama, but race and civil rights have not formed a visible part of the new administration's domestic agenda. Although the economy is certainly relevant to people of color — who are disproportionately poor and unemployed — most of the government's policies dealing with the economy have transferred wealth to powerful financial institutions. By contrast, only a few reforms have been implemented that provide immediate consumer-based relief. This glaring dichotomy explains the passionate response of the public to executive bonuses and compensation.

Finally, civil libertarians celebrated the President's executive orders banning torture, closing the Guantanamo Bay detention facility, and shuttering the CIA prisons. But they have been largely unsuccessful convincing the Obama administration to abandon highly criticized policies of the Bush administration — such as asserting a highly expansive state secrets litigation defense, adhering to the use of rendition by the CIA, denying civilian attorneys access to the Guantanamo Bay detention center, holding out the possibility of "harsh" interrogations, and asserting broad power to detain indefinitelyno longer uses the term "enemy combatants").

Although President Obama stated during his campaign that he would seek the repeal of Don't Ask, Don't Tell and the Defense of Marriage Act, he has not taken any affirmative steps to do so. Prior to his inauguration, press statements by anonymous members of his staff indicated that he would not move quickly on DADT. Recent comments by Secretary of Defense Robert Gates affirms these earlier accounts. But Gates took a similar stance during the Bush administration, which caused some GLBT rights advocates (including this blogger) to question his nomination by President Obama. Needless to say, DADT is officially on the back burner.

Also, President Obama has not altered his position on same-sex marriage: He still believes that marriage should be limited to heterosexual couples. Rather than accepting his position or lobbying him to change his mind, GLBT rights groups have pursued other avenues of relief, including some that could force his hand. For example, a recent lawsuit challenges the constitutionality of DOMA. Plaintiffs in the case entered lawfully recognized same-sex marriages under Massachusetts law. They seek equal access to federal benefits which DOMA denies, rather than a federal right to same-sex marriage.

The precarious status of the economy could help generate public support for efforts to alter the discriminatory distribution of federal benefits which DOMA mandates. Also a strong plurality to majority of the public supports "civil unions" and "equal benefits." Because this litigation advances an idea that enjoys popular support, it might succeed.

In any event, this case (along with an ongoing one that challenges the legality of DADT) could test President Obama's commitment to his campaign promises related to GLBT rights. Retreat from those promises could prove politically embarrassing and damaging. …

Loyalty to a political party has never secured social change. Instead, political activism and litigation — combined with political opportunities created by shifting economic and social conditions and international affairs have all led to substantial changes in policy across United States history.

Political commentators often distort history by vastly overstating the role of presidents and understating the importance of social movements to the history of policy innovation. Today, our society inflates the role of Lincoln in bringing about abolition, the centrality of Roosevelt to the New Deal and end of the Great Depression, the role of Kennedy in the enactment of the Civil Rights Act of 1964, and the role of Johnson in the passage of the anti-poverty and Great Society programs.

Although presidential leadership and vision were critical to the accomplishment of these policies, these dramatic changes would not have occurred without the engagement and agitation social movements. Presently, GLBT movements apparently "get" this aspect of history….


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