How the Fight for Gay Rights Changed America
The following is an excerpt from the new book Don't Tell Me To Wait by Kerry Eleveld (Basic Books, 2015):
President Obama presided over a tipping point in the history of LGBT rights—a time when Congress passed its ï¬rst-ever pieces of pro-gay legislation, when government-sanctioned discrimination against gays in the military and same-sex couples began to crumble, when a sitting president declared all love equally sacred and the voters went from rejecting marriage equality at the ballot box some thirty times prior to 2012 to ratifying it by popular vote in three consecutive states that same year.
But the president did not do it alone. The forces that helped move him and his administration in the direction of progress contained the classic elements of every struggle for freedom and equality: societal pressure, a moral dilemma, and a group of people who were deemed unreasonable because they refused to engage the political system in accepted and ordinary ways.
Of all the progressive constituencies who had helped elect Obama in 2008, LGBT activists were the ï¬rst to aggressively pressure the Democratic administration during Obama’s ï¬rst term. DREAM activists— young, passionate, and irrepressible—came the closest to matching grassroots gays in style and tone, and they were ultimately more successful than Beltway immigration groups in achieving ï¬rst-term results. While comprehensive immigration legislation backed by Washington immigration groups never got a vote in the 111th Congress, the fact that the DREAM Act—which would have created a pathway to citizenship for young undocumented immigrants brought to the United States as minors—even logged a Senate vote was due solely to the fervent activism of DREAMers. They mounted large-scale protests and challenged President Obama directly and repeatedly, just as LGBT activists had. In 2012, President Obama would ï¬nally take executive action to provide temporary legal status to the young immigrants, an absolute testament to the efforts of DREAM activists. The program, called Deferred Action for Childhood Arrivals (DACA), helped pave the way for President Obama to provide further deportation relief in 2014 for up to ï¬ve million DREAMers and parents of US citizens and legal residents, though the programs were stalled by a legal challenge from conservative lawmakers. Another progressive cause, the environmental movement, eventually adopted many of the same direct-action tactics leveraged by gay rights activists and DREAMers, and they too got results. The environmental movement succeeded in both stalling approval of the Keystone XL pipeline and making marked second-term gains toward the reduction of carbon emissions. It was another example of President Obama becoming increasingly proactive over time on an issue—climate change—which he seemed to care deeply about.
But what really separated LGBT rights activists from the other movements was that they moved incredibly quickly, organizing actions to help set up passage of “don’t ask, don’t tell” repeal while Democrats still had majorities in both chambers of Congress. It sounds simple in retrospect, but going after the president you helped bring into ofï¬ce at the very moment when nearly every powerful Democratic entity in Washington is counseling patience was completely unconventional. It drew derision from the Beltway’s Democratic establishment and even many of its LGBT institutions, which had run the movement virtually unchallenged since the mid ’90s. But the singular achievement of passing repeal before the close of the 111th Congress was well worth the struggle. Vanquishing the military’s gay ban broke the logjam on LGBT rights and became the difference between Barack Obama’s presidency being simply an important milestone in the movement for equality versus a monumental turning point in history.
I covered Obama as a candidate and then as president for nearly ï¬ve years. What I witnessed during that time were the contortions of a shrewd and cautious politician grappling with his conscience as he came face to face with activists who were no longer willing to subordinate their equality. Not to the cause of Democrats—a party that was LGBT-friendly in theory but had proven anemic in actuality. Not even in support of a man who epitomized the kind of integration and acceptance gays hoped to one day achieve themselves.
What was clear to anyone who had a view to the White House was that activists’ continual prodding frustrated President Obama and his aides. In the president’s eyes, his administration was taking reasonable steps toward advancing LGBT equality on a pragmatic timeline, one that had to take into account other concerns such as the economy, health care reform, and the wars in Iraq and Afghanistan.
Pragmatism, however, is a losing proposition in any civil rights struggle. And it was that friction—between the pragmatism of a politician and the urgency of a movement—that prompted the president and his aides time and again to move faster in advancing gay rights than they had initially intended. It was that friction that produced more progress for LGBT activists than any other single progressive constituency in Obama’s ï¬rst term and set the nation on course to eventually embrace LGBT Americans as full citizens.
At the time of its passage, “don’t ask, don’t tell” repeal was arguably the most pristine progressive legislative win of Obama’s ï¬rst two years in ofï¬ce in terms of both public perception and substance. Health care reform, despite right-wing reports to the contrary, had been a centrist piece of legislation that deeply disappointed many progressives due to its lack of a public option (a provision that would have allowed consumers to choose a government-run insurance plan over a private plan). In actuality, passing the Affordable Care Act was still a huge achievement, but it wasn’t all that progressives had hoped for at the time. President Obama had other big wins, to be sure, like passing Wall Street reform and the $787 billion stimulus package in the wake of the 2008 ï¬nancial crisis, but both were controversial at the time and both had vocal detractors from both sides of the aisle. And certainly expanding the children’s health insurance program to millions of low-income children and enacting the Lilly Ledbetter Fair Pay Act for women were popular accomplishments. But they were so popular that they cruised through Congress within the ï¬rst couple weeks of when Obama took ofï¬ce. Neither involved the extended full-court press that passing repeal required.
Ending the gay ban marked the unqualiï¬ed completion of a high-proï¬le campaign pledge that advanced a fundamental American right: at work, you should be judged by your ability to do the job, nothing else. In its wake, the president would go on to either advance or achieve nearly every single priority of the LGBT community coming into his presidency. Every new win drew more praise from progressives and exposed the fact that virulent homophobia animated only a small and increasingly marginalized segment of the population. Doing the right thing just got easier and easier.
There were the major victories beyond overturning the military’s gay ban. After the administration ended its defense of DOMA, government lawyers joined LGBT legal advocates in 2013 in making a forceful argument against the constitutionality of the law at the US Supreme Court. Administration lawyers also authored a brief in Hollingsworth v. Perry, the challenge to Proposition 8, at the high court in 2013. In it, they argued for the expansion of marriage equality to more states (though they stopped short of asking the court to overturn marriage bans nationwide). But it was the Supreme Court decision gutting DOMA in United States v. Windsor, released on June 26, 2013, that helped crush anti-gay marriage bans across the country. When the Supreme Court originally heard the case on March 27, 2013, a mere nine states plus the District of Columbia had legalized same-sex marriage. But the Windsor decision, authored by Justice Anthony Kennedy, overturned a critical section of DOMA and unleashed a domino effect of court rulings in its wake. By the time the second marriage equality case—Obergefell v. Hodges—reached the Supreme Court two years later, same-sex marriage was already legal in 36 states. In that case, President Obama’s Justice Department ï¬led a “friend of the court” brief arguing for the right of same-sex couples to marry in all ï¬fty states. The decision in Obergefell, issued on June 26, 2015, ï¬nally struck down gay marriage bans nationwide.
Beyond the ripple effect the Windsor ruling unleashed in the states, a string of changes also ï¬‚owed from federal agency after federal agency, lending some insight into just how intrusive DOMA had been on the lives of same-sex couples and their families. Within days of the decision, the federal government immediately began extending beneï¬ts to same-sex spouses that were previously only available to heterosexual spouses. In July, Department of Homeland Security Secretary Janet Napolitano announced that US Citizenship and Immigration Services would begin reviewing visa petitions ï¬led on behalf of a same-sex spouse “in the same manner as those ï¬led on behalf of an opposite-sex spouse.” A month later, Secretary of State John Kerry said US embassies and consulates abroad would follow the same visa policy, even if you lived in a country that didn’t legally recognize your marriage. The Department of Defense also announced in August that it would begin extending beneï¬ts to same-sex spouses of service members and civilian employees. Since many service members lived in states where they could not legally marry, the Pentagon leveled the playing ï¬eld by allowing gay service members leave time in order to travel to a jurisdiction where they could legally tie the knot. And ï¬nally in August, the Treasury Department and IRS ruled that legally married same-sex spouses would be treated as married for federal tax purposes, regardless of whether they resided in a state that didn’t recognize their marriage. Similar announcements came from the Departments of Labor and Education regarding recognition of same-sex marriages for the purposes of pension plans and federal student aid applications.
Beyond the reaches of DOMA, other major wins included ending the twenty-two-year-old HIV travel ban, which prevented persons with HIV from entering the United States. The ’80s-era law had been repealed legislatively under President George W. Bush, but the rule change wasn’t successfully implemented until the fall of 2009 under President Obama. As for employment protections, President Obama ultimately did about as much as he could do without the help of Congress. In July of 2014, he ï¬nally issued an executive order that prohibited federal contractors from discriminating against LGBT employees. The president also strengthened protections for transgender workers in the federal government via executive order in his second term, an action that built upon his 2010 addition of transgender workers to the federal government’s Equal Employment Opportunity (EEO) policies.
Another big win for the transgender community came in June of 2010, when Secretary Hillary Clinton’s State Department revised the rule for changing the gender marker on an individual’s passport, dropping the requirement that one present proof of gender reassignment surgery. In 2013, the Social Security Administration adopted a similar policy, making it possible for transgender individuals to update their Social Security records by presenting either a passport or a birth certiï¬cate that reï¬‚ected their proper gender, or certiï¬cation from a physician conï¬rming their gender transition. As basic as this sounds, these changes signiï¬cantly improved the lives of transgender Americans, especially those who lived in states that had outdated or discriminatory policies. Having an ofï¬cial document that accurately reï¬‚ects the way one presents to the world makes life substantially easier for transgender individuals while also making their domestic and international travel far safer.
Then there were a series of smaller regulatory changes that slowly began to eradicate systemic discrimination. The Department of Health and Human Services, under the leadership of Secretary Kathleen Sebelius, initiated a number of pro-LGBT policy changes. They included ending the Bush-era practice of allowing health care workers to refuse service to LGBT individuals for religious or moral reasons; launching a review of the policy of not allowing gay and bisexual men to give blood donations; announcing plans to begin collecting public health data on LGBT individuals in federal health surveys (which would help secure more government funding for providing health services to LGBT Americans); and issuing state guidance on covering LGBT families through federal welfare programs. The department also awarded nearly $15 million in grants to create a model program for supporting LGBT and questioning youth in the foster care system and to establish two ï¬rst-ever national resource centers—one for LGBT elders and another for LGBT refugees.
At the Department of Education, Secretary Arne Duncan announced in June of 2011 that gay-straight alliances (or GSAs) had the right to form in public schools as a matter of federal law under the Equal Access Act. The Reagan-era statute required public schools to provide equal access for extracurricular clubs.
In 2011, the Veterans Administration issued a new health directive to all its facilities, ordering them to respectfully deliver health care to both transgender and intersex veterans.
In another ï¬rst, the Department of Housing and Urban Development (HUD) released a study that revealed widespread discrimination against same-sex couples who applied for housing in the private rental market in ï¬fty different metropolitan areas. The study found that “heterosexual couples were favored over gay male couples in 15.9 percent of tests and over lesbian couples in 15.6 percent of tests.”
And at the Department of Justice, Attorney General Eric Holder was quick to recognize same-sex marriages that were performed legally, even in states like Utah and Michigan where bans were struck down, marriages took place, and then a stay was issued on the original ruling while further litigation ensued. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds,” Holder said of Utah’s 1,300 newly married same-sex couples, just days after the Supreme Court stayed the December 20, 2013, ruling.
In many ways, taken together, it was like the federal government ï¬nally began to recognize lesbian, gay, bisexual, and transgender people as citizens of this country. Because the government had systematically denied our existence, LGBT Americans had suffered discrimination in virtually every policy area controlled by the government. In turn, that resulted in public policies that completely failed LGBT individuals and yielded a less vibrant, less uniï¬ed nation. The history of HIV/AIDS in this country demonstrates that whenever the government turns a blind eye to the people who are living within its borders, the whole country suffers, whether from higher costs or from dangerous health outcomes. When the federal government failed to develop an urgent public health response to HIV and AIDS in the ’80s, it allowed the disease to blossom into an epidemic that eventually penetrated every race, ethnicity, gender, and socioeconomic class of the nation. Were it not for the relentless and unapologetic agency of HIV/AIDS activists, who knows how much longer it would have taken to develop effective treatments for the disease.
What was striking is that most of these policy advances—big and small—would have been deemed “heavy lifts” by Washington hands at the beginning of the Obama administration. But that was mostly because Washington was so wildly out of step with most of the American public after the total stagnation on LGBT equality that had gripped the Beltway during the Bush years. The anti-gay marriage amendments that swept the nation between 2004–2010 managed to capitalize on the one gay rights issue that many Americans still feared: marriage equality. But not all LGBT issues were created equal. With the exception of marital rights, by 2009, vast majorities of Americans believed that LGBT citizens should be treated fairly in most areas of their lives, including employment, military service, housing, health care, and other issues. Yet these distinctions were lost on Washington.
But if the mentality of the Bush years had a crippling effect on the early Obama White House, President Clinton’s legacy had an even more profound impact. Ultimately, two of the key issues that had haunted President Clinton’s ï¬rst two years in ofï¬ce—the military’s gay ban and health care reform—also hexed President Obama. Yet while Clinton suffered bruising defeats on both “liberal” causes and relied on centrism to win a second term, Obama didn’t have that option. He initially tried to move to the middle as Clinton had in the ’90s on both issues—ï¬rst by making a sustained yet unsuccessful bid to build bipartisan support for health care reform, and second by not passing repeal before the mid-terms. Yet Democrats still took a beating at the polls. Obama and his aides had wildly underestimated the importance of public opinion on both fronts. Following the midterms, the White House was left with little choice but to reckon with the American public’s quickly shifting views on LGBT equality. Once they did, they were able to help effect remarkable change—and build a successful progressive reelection campaign in 2012.
Public opinion was, in fact, one major point of divergence between the civil rights movement and the gay rights movement. While popular attitudes lagged behind the pace of the laws on racial equality, they raced ahead of the laws on LGBT equality. When President Harry Truman gave the order to desegregate the US Armed Forces in 1948, for instance, a Gallup poll found that 63 percent of Americans still supported keeping black and white soldiers separate. It was almost the mirror opposite of ending the military’s gay ban, which the vast majority of Americans supported by the time it ï¬nally happened.
The same is true for attitudes on interracial and same-sex marriage.
When the 1967 Supreme Court ruling Loving v. Virginia overturned laws in sixteen states that prohibited marriages between people of differing races, about 70 percent of Americans still opposed such marriages. At the time of the ruling, interracial marriage was already legal in thirty-four states even though it was very unpopular among the public at large. By contrast, public opinion was prologue to the marriage equality revolution that quickly swept the nation following the Windsor ruling. More than half the country already supported same-sex marriage by the time a key portion of DOMA was overturned, yet only nine states had legalized it.
What this all meant in the early years of Obama’s ï¬rst term was that the public was a resource in waiting for gay rights activists who wanted the country’s laws and lawmakers to catch up with American culture. Once Obama and his administration got fully on board, the momentum was unstoppable.
Six months into his administration, President Obama and the First Lady hosted the ï¬rst LGBT Pride reception ever to be held at the White House. At the time, LGBT activists across the nation were already beginning to mobilize against an administration that they regarded with suspicion and already felt betrayed by. Yet to a mostly adoring crowd of a couple hundred LGBT people gathered in the East Room, Obama asserted, “I suspect that by the time this administration is over, I think you guys will have pretty good feelings about the Obama administration.”
He was right. Many if not most LGBT Americans who supported Barack Obama in the 2008 election now have pretty fond feelings for the president. But when President Obama uttered those words, the timeline he was counting on was the day he assumed he would be leaving ofï¬ce, January 19, 2017. He was too competitive not to count on winning a second term. It was a timeline grassroots activists never accepted, and thank goodness they didn’t. But on that June day in 2009, whether one believed Obama was staying true to his campaign promises was a matter of perception. He believed he would deliver. Grassroots gays felt he was already failing to do so.
The story of President Obama’s marked LGBT rights accomplishments is one where everyone turned out to be right, or at least partially so. President Obama was correct in the sense that he absolutely believed his administration would ultimately do the right thing no matter how long it took. Grassroots activists were also right to believe that the administration needed a relentless, outside-the-Beltway push to reach the many goals Obama had committed to on the campaign trail. Repealing “don’t ask, don’t tell,” had to be an unequivocal imperative for the administration and lawmakers, otherwise it would have easily been pushed into the next congressional calendar. And although most Washington-based LGBT advocates were too friendly with the administration to create that imperative, those advocates were also right to believe the movement still needed a robust inside game on Capitol Hill in order to ï¬nish the job legislatively. Every one of these groups—the grassroots, Washington advocates, and administration ofï¬cials—needed each other to make it work. None of them would have been singularly successful without the others.
But for all the gains that were made during Obama’s presidency, the struggle for full equality is far from over. America is still getting comfortable with same-sex marriages and still discovering all the ways in which LGBT citizens continue to be subjected to discrimination. The latest effort by anti-gay forces to perpetuate homophobia and bigotry is to assert that providing equal rights to LGBT individuals encroaches on the religious liberties of other Americans. It’s a ruse. No one is suggesting that people shouldn’t be able to practice their faith as they see ï¬t. They absolutely should. But they should not be able to invoke that faith as a justiï¬cation for discriminating against people with whom they disagree.
This is not a new concept. The US Supreme Court and the federal government established a framework for addressing racial discrimination and other forms of intolerance through a series of rulings and laws, particularly in the ’50s and ’60s. Unfortunately, while most of those laws and legal precedents protect people on the basis of race, color, religion, sex, national origin, and disability, none of them explicitly provide protections on the basis of sexual orientation or gender identity. The one important caveat to the lack of those protections is that courts have increasingly viewed discrimination against transgender individuals in the workplace as sex discrimination and therefore covered by Title VII of the Civil Rights Act of 1964.
But for the most part, gay, bisexual, and transgender individuals must rely on a woefully inadequate patchwork of laws to protect them from discrimination. Some of those laws cover LGBT residents across the board in housing, public accommodations, and the workplace, while others only cover them in the workplace. Some of those laws protect gays and bisexuals but not transgender residents. Some of them are statewide and others only apply to speciï¬c jurisdictions within a state. But none of them are national, and under federal law, LGBT Americans are still not deemed a protected class despite their long history of discrimination. It is sometimes easy for people on the coasts to forget the need for federal protections, but it remains ever so apparent to those who reside in the middle and southern regions of the country.
Achieving the freedom to marry nationwide has been a profound afï¬rmation of our dignity and will go a long way toward providing stability to LGBT families across the country. But the next step on the way to realizing full equality for lesbian, gay, bisexual, transgender, and queer Americans is to enact civil rights legislation that protects them in all areas of their lives. That will be the challenge of the next president of the United States and federal lawmakers in congressional sessions to come, regardless of political philosophy or party identity. Because providing these fundamental freedoms is not a gay cause or a liberal cause, it is quite simply an American cause. It’s a call to basic fairness that will be led and pushed by a new generation of citizen activists. And that generation will not settle for anything less for the people they know simply as their brothers and sisters, their moms and dads, and their best friends for life.