Gay Shame

How bad could it get? Davidson answers with two words: “Supreme Court.”

There have been a series of split 5-4 rulings that could have gone the wrong way had the Republicans seized the executive branch and added just one more conservative justice. It takes only one change in the composition of the court to lead to significant changes in interpretation of people‘s constitutional and statutory rights. Gwenn Baldwin expects the next president will appoint two, if not three or even four, justices. That executive ability to shape the law of the land for an entire generation has the power to tip issues from progressive rulings to severely reactionary and homophobic ones.

In 1992, for example, the Colorado Legislature amended its state constitution to prohibit any sexual-orientation or anti-discrimination laws from being enacted. In 1996, the Supreme Court held that that state move violated the federal Constitution. “The Romer vs. Evans decision, which won by one vote, 5-4, would have gone the other way but for Justices Ginsburg and Breyer, the two moderate justices appointed by Clinton,” comments Lambda’s Davidson. Another case this past year, Bragdon vs. Abbott, involved a Maine dentist‘s refusal to treat an HIV-infected patient. The Supreme Court ruled that the Americans With Disabilities Act prohibited discrimination against HIV-positive patients who had no symptoms.

The next few months will see similarly significant Supreme Court decisions regarding the civil rights of gays and lesbians, including the infamous Boy Scout case. The Scouts argue that, as a private organization, it has the right under the First Amendment to discriminate against people -- in this case, openly gay assistant scoutmaster James Dale -- whom it finds morally questionable.

Davidson worries that a Supreme Court under Bush will be more sympathetic to religious groups -- or private groups such as the Boy Scouts -- who argue that, if homosexuality violates their religious or secular belief system, it would be unconstitutional for such “innocents” to be forced to comply with sexual-orientation anti-discrimination laws.

Another Supreme Court decision affecting gays centers on the ability of grandparents to seek parental-visitation rights. “Gays,” explains Davidson, “have a powerful interest in this case, especially in situations where a gay and lesbian family breaks up and one parent is stripped of visitation rights and is barred from the family, or if a gay and lesbian family is raising a child and homophobic grandparents sue for access.” Last Monday’s ruling upholding parental rights won praise from Lambda Legal Defense and provoked concerns that such progress won‘t last in the event of a Bush administration.

A Bush presidency doesn’t just threaten the moderate votes on the Supreme Court for a generation. The Task Force‘s Elliot explains that presidential elections tend to have what he calls a “down ballot” effect on congressional elections. If Bush wins, he is going to bring with him a lot of new congressional representatives from his own political party. “Keep in mind that only six seats separate Republican domination from Democratic leadership in the House,” Elliot warns. “And in California, you have three seats that are already under incredible competition, especially the controversial race between the right-wing incumbent James Rogan and state Senator Adam Schiff, which could turn out to be the most expensive race in the country.”

In Alabama, a bill that would add sexual orientation to the state’s existing hate-crimes law passed the full House and the Senate Judiciary Committee, the first time a hate-crimes bill inclusive of sexual orientation has advanced this far.

“Such progress would be unthinkable under Bush, and even more hopeless if Congress kept its Republican majority,” comments Elliot.

In California, a number of bills advancing the equality of gay people are currently moving through the legislative process, with the help of openly lesbian Assemblywomen Sheila James Kuehl and Carole Migden. AB 2142 would amend the state‘s anti-discrimination law to include transgendered people; AB 2418 would prohibit discrimination on the basis of sexual orientation in the process of jury selection. SB 118 would allow employees to take family-care and medical leave to help a same- or opposite-sex domestic partner, grandparent or sibling, or anyone who lives with them and depends on their care and support.

In addition, AB 2047 would grant registered domestic partners legal and economic benefits, would allow a domestic partner to make medical decisions for an incapacitated partner, would allow one domestic partner to inherit from another if one partner dies without a will, and would allow domestic partners to participate fully in conservatorship proceedings.

“You tell me that progress like this has nothing to do with having Clinton in the White House,” says L.A. Gay and Lesbian Center director Gwenn Baldwin. The “down ballot” syndrome is also likely to have a chilling effect on what remains the single most impressive political victory sustained by gays over the last eight years. In Vermont last December, the Legislature passed, and the governor signed, a historic civil-union bill. The bill, which will take effect in July, will give same-sex couples the right to form state-sanctioned civil unions and enjoy more than 300 benefits, rights and responsibilities currently available to heterosexual married couples. These include the right to make medical decisions in case of emergency, transfer property, inherit estates, oversee funerals and file joint state income-tax returns. Stories abound of family members coming in after the death of one partner of a gay couple and having every legal right to evict the surviving gay man from the home he shared with his lover, with nothing but the shirt on his back, because his name wasn’t on the mortgage and no will had yet been made.