Analysis: The battle for gay marriage will be fought in the states

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If you believe some of the hype out there you might think that 4th November 2008 will be a turning point in the long campaign to achieve equal human rights for America’s gay men and lesbians.

The mutual love-in that was the Logo Democratic Presidential “gay” forum this summer was more reminiscent of a sofa-style chat with Oprah than a fully-fledged political battle of ideas.

When rank outsider Dennis Kucinich announced that “I love all of you” in his final comments I feared the “debate” would descend into spontaneous collective rendition of Over the Rainbow accompanied by panellist Melissa Etheridge on acoustic guitar.

Fortunately, viewers were spared that fate but the message was clear; Democrats love the gays, or at least they say they do.

By contrast there was no Republican “gay” debate. Every GOP candidate declined to take part.

The conclusion looks simple.

If America chooses a Democrat in 2008 then gays and lesbians will be celebrating while if a Republican wins the White House we can expect more of the same after two terms of George W Bush.

There is some merit in that conclusion.

I think any impartial political analyst would agree that the political agenda of gay and lesbian rights in the United States stands a greater chance of being advanced with a Democrat taking the oath of office in 2009 rather than a Republican.

But there are a myriad of influences that will determine the ability of a President to bring about change, and in fact on many issues the leader of the free world will be utterly powerless.

There are three factors that will be paramount in determining whether those who have dreamed of a Democratic President bringing reform will have their hopes dashed or their aspirations realised.

The Congress, the states, and a slightly less tangible factor, political will, will be crucial.

As the current incumbent is experiencing, without a majority in the House of Representatives and the Senate it is a tough, if not impossible, challenge for the President to achieve anything of substance in the domestic arena.

The latest approval ratings for President Bush are 31 per cent, while those for Congress languish even lower at 22 per cent.

The GOP appears to many to be disintegrating amid scandal and an unpopular war, but history shows us that America has a tendency to elect a Congress that opposes the President.

The Democrats are confident of holding on to the House and Senate but few disagree that they have failed to capitalise on the wave of public support that swept them to power last year.

Without a strong majority in the House and Senate a Democratic President will have only a limited leadership role to play on domestic issues and may lack the ability to persuade the Congress to push gay rights to the top of their legislative agenda.

The United States of America is a federal republic.

Unless powers are explicitly granted to the federal branches of government, they are reserved for the states.

One of the most politically sensitive issues in America in the last decade has been gay marriage.

None of the likely nominees from either party are supporting this cause.

While Democrats have signed up to civil unions, this is ultimately a battle that will be fought state-by-state and not in Washington D.C.

Neither the President nor the Congress has the power to impose gay marriage or civil unions on the fifty states that make up this federal republic.

President Bush’s efforts to amend the constitution banning gay marriage may be lifeless, but the idea that a President could single-handedly bring gay marriage to the United States is similarly dead in the water.

Thirty-nine states ban same-sex marriage with state constitutional amendments approved by public referendums.

The federal Defence of Marriage Act (DOMA) prevented federal recognition of same-sex marriages and allowed states to refuse to recognise gay marriages performed elsewhere.

DOMA was passed overwhelmingly by Congress in 1996 and signed into law by President Bill Clinton.

While Hillary Clinton, Barack Obama, and John Edwards all favour repealing Section 3 of DOMA and allowing the federal government grant the federal legal benefits of marriage to same-sex couples on the state level who are married, such as those in Massachusetts, only Obama and Kucinich support the repeal of the legislation in its entirety.

Finally let us consider that least tangible but perhaps most powerful of factors, political will.

It has been flattering to see the Democrat candidates openly court gay voters and equally enlightening to see Republicans refrain from anti-gay rhetoric on the campaign trail so far.

Yet when the new President takes office, the question remains whether the pursuit of gay rights can realistically be at the top of their in-tray.

The Clintons have deep scars on their back from the ill-fated effort to end the ban on gays in the military in 1993.

The messy compromise of “Don’t Ask, Don’t Tell” left the Clinton White House weakened after just months in office and having wasted valuable political capital.

If Hillary Clinton or one of her Democratic rivals wins the Presidency their hard-nosed political judgment may steer them away from a potentially destructive collision with conservative opponents at a time when the country is crying out for a uniter and not a divider.

Let’s also not forget the 800lb gorilla in the US political system; the courts.

You can guarantee that any attempt at reform will prompt so-called family values activists to employ an army of lawyers to fight their battle in the courts at state and federal level.

Expect to see them walk up the forty-four steps of the Supreme Court at every opportunity in an attempt to have any changes deemed unconstitutional.

The Court has taken an increasingly conservative direction with the justices nominated by the Bush administration, and ultimately has the power to strike down any law, state or federal.

There is still plenty of reason for optimism if a Democrat wins and maybe not the despair that many felt in 2004 if a Republican claims victory in the race.

If President Bush vetoes the Matthew Shepard Act on hate crimes or the latest Employment Non-Discrimination Act (ENDA), then resurrected versions may stand far more of a chance under a Democratic Presidency – assuming of course the party can maintain control of Congress.

The news on the Republican side may not hold too much to fear for gays and lesbians.

The GOP frontrunners are a liberal-leaning New Yorker who supports civil unions, an Arizona senator who once denounced evangelical preacher Jerry Falwell as one of America’s “agents of intolerance,” a former Governor of Massachusetts who once claimed in a 1994 Senate race that he would be a stronger supporter of gay rights than Ted Kennedy and a non-church going former actor who champions states’ rights (and tacitly their right to introduce gay marriage) who recently told Fox News “we ought to be a tolerant nation.”

That is not to say the Republicans are likely to mount a campaign with any overt support of gay rights issues but a rollback to the Bush ’04 agenda emboldened by solid backing from the evangelical Right seems unlikely.

Demands for a constitutional amendment barring gay marriage appear to have fallen off the political radar.

The GOP frontrunners know they have to promote a moderate, less divisive vision to present an electable alternative to the unpopular later years of the Bush Presidency.

The evangelical movement is not dead and buried by any stretch of the imagination but it is already feeling marginalised in the 2008 nomination process.

It also looks at if the era of “Don’t Ask, Don’t Tell” may be coming to an end regardless of whether a Democrat or a Republican is commander-in-chief.

It may not be the first priority for a new President fearful of a conservative backlash, but change could be inevitable.

The reality of a shortage of troops to fight the wars in Iraq and Afghanistan and the experience of other countries – including most countries in Europe as well as Israel, Australia and Canada – who allow gays and lesbians to serve openly, may bring change for pragmatic reasons rather than any commitment to equality.

Rudy Giuliani cannot realistically favour reform of the current policy if he wants the GOP nomination, but he has used a form of language that does not rule it out.

It was the military who were at the forefront of the battle to stop President Clinton lifting the ban in 1993, but many former generals including John M. Shalikashvili, who was Chairman of the Joint Chiefs of Staff at the time, now support an end to “Don’t Ask, Don’t Tell.”

Polling the voting intentions of gay and lesbians can be notoriously difficult but most indicators show strong support for Democrat candidates, and for Hillary Clinton in particular.

It will be heartwarming for many of us to have the most powerful woman or man in the world as a supporter.

A message of tolerance and acceptance from whoever wins next year will be a welcome change for many LGBT Americans who felt alienated by the Bush administration, but the evidence of the recent past clearly demonstrates that warm words are not enough.

When Bill Clinton was elected many gays and lesbians rejoiced at the prospect of a new beginning with a champion in the White House.

Having an ally may make us feel good but it does not bring legislative change.

The euphoria of Clinton’s victory was short-lived after the disastrous handling of the efforts to end the ban on gays in the military, his inability to gain congressional support for ENDA despite his strong personal backing, and his endorsement of DOMA.

The Clintons enjoy huge support from prominent activists but his legacy in terms of advancing the rights of gays and lesbians is mixed regardless of his good intentions.

In 2008 the gubernatorial, congressional, and state legislature elections may prove to be more important for the rights of America’s gays and lesbians than whoever triumphs in the race for the White House.

The power to bring about change does not reside in the Oval Office.

It is in the hands of lawmakers and judges in the nation’s capital and across the fifty states that make up the United States of America.