Marching On

News Analysis: With 2011 barely begun, the year promises ongoing LGBT political action pro or con on multiple fronts

by Chris Geidner
Published on January 5, 2011, 2:18pm | Comments

On Jan. 5, Ohio Republican John Boehner was sworn in as the speaker of the House of Representatives. Boehner, who received a 0 percent score on the Human Rights Campaign's congressional scorecard in the 111th Congress that just came to a close, replaces Rep. Nancy Pelosi (D-Calif.), who received 100 percent.

Ohio Republican John Boehner
Ohio Republican John Boehner
(Photo courtesy of the United States House of Representatives)

The change in the control of the House – while not entirely characterized by the sort of polarization separating Boehner and Pelosi – nonetheless puts a likely end to consideration of the Employment Non-Discrimination Act and legislative repeal of the Defense of Marriage Act over the next two years. HRC, on Jan. 5, released a document asserting that 225 members of the House – a majority – have an anti-LGBT record.

Other legislation, though, remains front and center. Among one of the pieces mentioned late in 2010 by Log Cabin Republican officials was the Tax Equity for Health Plan Beneficiaries Act, which was introduced in the House in 2009 with bipartisan support. GOProud is looking to other initiatives – including personal savings accounts under Social Security and a permanent repeal to the estate tax – both of which would offset the discrimination faced by same-sex couples because of DOMA.

Because Rep. Ileana Ros-Lehtinen (R-Fla.), who scored a 92 percent rating from HRC in the 111th Congress, is the likely incoming chair of the House Foreign Affairs Committee, LGBT advocates also hold out hope that action on the Uniting American Families Act – which would offer some recognition of bi-national, same-sex couples – and other LGBT-supportive legislation under her committee purview could advance in the new Congress.

Meanwhile, the reauthorization of the Elementary and Secondary Education Act – through which the administration had expressed hope to address anti-LGBT bullying – and continued questions about funding for the AIDS Drug Assistance Program will remain at issue in the new Congress. Additionally, advocates are on the lookout for any anti-LGBT initiatives from the new House, including a possible appropriations rider to the District's budget that could call into question marriage equality here.

Down Pennsylvania Avenue at the White House – and across the river at the Pentagon – the first LGBT question of the new year was how quickly the Don't Ask, Don't Tell Repeal Act, signed into law by President Barack Obama on Dec. 22, would result in open military service. Before 2010 had even come to a close, the government filed a motion in the ongoing appeal of LCR's challenge to DADT asking the U.S. Court of Appeals for the Ninth Circuit to put the case on hold until the repeal implementation can be completed.

The government is scheduled to submit its opening brief in the appeal of U.S. District Court Judge Virginia Phillips's ruling striking down DADT by Jan. 24. In the December filing, though, Justice Department lawyers ask for the case to be held to conserve the court system's resources, and out of ''respect for determination by the political branches that the orderly process mandated by the Repeal Act is necessary and appropriate to ensure that military effectiveness is preserved.''

Repeal of 10 U.SC. 654, the DADT law, will occur under the Repeal Act 60 days after the president, defense secretary and chairman of the Joint Chiefs of Staff certify to Congress that the changes needed to implement repeal are ''consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.''

The Repeal Act's enactment and the process put forth in the act prompted the Justice Department's filing on Dec. 29, but the ongoing enforcement of DADT today and the nonexistent timeframe for certification under the act has prompted a promise from LCR officials to oppose the motion. Days into the new year, it is clear that the ongoing legal challenge from LCR – as well as those from Servicemembers Legal Defense Network and the ACLU – will keep the administration facing tough decisions regularly until repeal is reality.

In addition to DADT-repeal implementation, there are other agency actions that LGBT advocates are likely to seek from the administration, particularly in light of the changed congressional leadership.

Among the steps sought earlier in 2010 was LGBT-specific agency action regarding suicide risks. As the year came to a close for example, the National Action Alliance for Suicide Prevention – a public-private partnership launched earlier in the year by Health and Human Services Secretary Kathleen Sebelius – announced the formation of a task force to address suicide-prevention efforts for ''youth who identify as lesbian, gay, bisexual, or transgender.''

The co-chairs of the task force are not new names to the LGBT community: Kevin Jennings, who founded the Gay, Lesbian and Straight Education Network and is the head of the Office of Safe and Drug-Free Schools in the Department of Education; and Charles Robbins, the executive director of The Trevor Project.

The actions of this initiative – and others – will provide the administration opportunities to make continued LGBT-equality advancements, even if legislative initiatives fail.

Regardless of federal legislative and administrative action, continued LGBT efforts are likely to be prominent throughout 2011.

From the Perry v. Schwarzenegger federal court case challenging the constitutionality of Proposition 8 and a series of challenges to the Defense of Marriage Act's federal definition of ''marriage,'' filings and arguments – and likely some decisions – throughout the year will keep marriage in the foreground. Additionally, legislative efforts for marriage equality in Maryland and Rhode Island appear likely, while more conservative legislatures such as the newly elected body in Minnesota appear poised to pursue anti-LGBT measures.

As was seen when the Ninth Circuit issued a series of opinions in the Perry case on Jan. 4, LGBT issues will receive extensive coverage – no matter their origin or even immediate impact. None of the opinions end the case, and none of them are likely – at least immediately – to raise any issue before the U.S. Supreme Court. They did, however, send a question to the California Supreme Court through a process called certification about the standing, or ability, of Proposition 8 proponents to bring an appeal.

This possibility was raised by Judge Stephen Reinhardt at the oral arguments in the case held Dec. 6. The question is the status that California law gives to proponents such as those who supported Proposition 8 in 2008 and then intervened in the Perry case to defend their successful initiative effort. This question is not a settled matter of state law, and the certification is an attempt by the Ninth Circuit to get the California Supreme Court to do so.

Because of the opinion, though, the case will have perhaps even more ups and downs than had been thought likely in the coming months – with each one holding meaning not just for the more than 37 million residents of the state but for all of those who have watched the fate of Proposition 8 since the night that it passed and Obama was elected president.

As with the Proposition 8 appeal, any and all LGBT-related actions in 2011 – whether from the White House or Congress or from a state legislature or state or federal court – will face the scrutiny of a benchmark that the recent years' equality accomplishments have created.