By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
Gays lost four out of five statewide ballot initiatives, as well as a major case involving the Boy Scouts. Several more states passed laws barring gays from adopting children. Republicans blocked federal legislation protecting us against discrimination in employment. While we won a hate crimes bill in Albany, New York remains the only state (besides Maine) in the Northeast without an omnibus gay-rights law. And while Vermont became the first state to allow "civil unions," it remains to be seen whether the privileges of this status will apply to same-sex couples who don't actually live in that state. Contract law requires states to recognize each other's marriage licenses, but we've learned from the federal courts that there's a "gay exception" to the laws that govern civil rights.
This exception goes to the heart of what makes our struggle distinct. Cases brought by women or racial minorities can merit "special scrutiny" because the courts have found that bias against these groups is irrational, not to mention unconstitutional. "That's the advantage race, sex, and other kinds of invidious discrimination have that sexual orientation does not," says Evan Wolfson, the Lambda Legal Defense attorney who argued the Boy Scouts case before the Supreme Court. "It's not that we need some extra legal doctrine," Wolfson notes. "We need an end to the gay exception that often denies us basic rights."
Consider that sexual orientation has no implications whatsoever for character. In that respect, it's no different from race or sex. That fact makes the entire apparatus of antigay discrimination outrageous. Arguments about which issues we ought to focus on are beside the point. All our issueswhether they involve marriage and military service or freedom from being fired and evictedare related, because they all proceed from the assumption, by those who would discriminate against us, that their homophobia is rational. Our progress or regression in any of these areas signals the status of this profoundly immoral belief.
So let's take a closer look at the year in queer.
In the latest example of carving out a gay exception, the Supreme Court ruled that the First Amendment entitles the Boy Scouts to exclude gays. Under the jurisprudential rhetoric was an unspoken belief that it is reasonable to believe gays are a threat to boys. Did this bias color the court's willingness to fly in the face of laws that apply to race and sex? Or were the same five justices who decided the presidential election signaling that the entire armamentarium of civil rights laws is now vulnerable to reconsideration?
The court did not deny that the Scouts are a public accommodation, but it decided that the right to freely associate exempts them from antibias statutes that include sexual orientation. No one can say whether this precedent will be cited in other cases involving women or African Americans, but the risk is grave enough to have inspired the NAACP to enter its first amicus brief ever in a gay-related case. At stake are long-standing prohibitions against discrimination by membership organizations that are open to the general public. The Boy Scouts certainly fit that bill. If they don't have to observe these laws, why should men's clubs? Will we return to the era of private covenants that excluded certain groups from buying real estate?
Jewish civil libertarians who justify the court's decision in this case have forgotten the time when neighborhoods restricted to Christians were a shining symbol of the freedom to associate. Or perhaps they are merely making a gay exception.
All Gay Politics Is Local
If there was good news in the Boy Scouts ruling, it was the response from dozens of charities, corporations, and local jurisdictions (including the New York City Board of Education) that withdrew support from the Scouts. This was the most forceful reaction ever to a defeat for gay rights, and it suggests that the future of our movement in a time of retrenchment may lie in two crucial alliances: with sympathetic local governments and businesses.
As NGLTF's Cahill points out, "In 1990, fewer than 20 million people lived with gay-rights laws, but by this year that number was 103 million38 percent of the country." This remarkable progress follows decades of activism by thousands of gay affinity groups. What began with small victories has now become ensconced in America's most important public institution: the corporation.
Corporate culture is keeping inclusiveness alive. And this is true not just for gays but for all the victims of whiteboy power. Even as governments in some states back away from affirmative action and domestic-partner benefits, more companies are adopting such policies, and where unions are present they are a matter of contract. It's ironic to see the private sector holding the lamp of liberty, but as big business accretes more and more power, one unintended consequence is a growing respectability for gay rights.