Archive for the ‘Human Rights’ Category

Heart and Soul

rs_560x415-140224091818-1024.roccos-chicago-pizzeria-arizona-legislators-022414The political and social fault lines in the modern Republican Party have been showing again for the last several days in Arizona. The Republican governor, Jan Brewer, vetoed a piece of legislation this week that was widely seen as opening a path of overt discrimination against gays. The veto came after days of increasingly negative attention focused on Arizona; attention that included corporate worries about the legislation’s impact on business and threats to cancel next year’s Super Bowl game in suburban Phoenix.

Brewer, an often erratic politician who once championed most causes of the far right of her party, took her time in doing it, but she ultimately saved the state’s Republicans from themselves. The hot button bill, pushed by conservative religious interests and passed by the Arizona legislature with only GOP votes, underscores once again the fractured nature and fundamentally minority bent of a Republican Party that vowed to renew itself after losing the White House again in 2012.

Gov. Brewer, who seems to be term-limited from running again in the fall, but still hasn’t said whether she would contest such an interpretation, underwent a full court press from the “establishment” wing of the GOP who called on her to ax the handiwork of Republican legislators. Arizona Republican Sen. John McCain and Jeff Flake both urged a veto. Apple, American Airlines, the state Hispanic chamber of commerce and a pizza shop in Tuscon that vowed to protest by refusing to serve Arizona legislators swarmed the governor. In the end it might have been the National Football League, plagued with its own image problems, that helped the governor decide to do the right thing; the right thing politically, economically, morally and for football fans.

The Republican Party’s national dilemma with issues like Arizona’s gay bashing legislation – and similar legislation in several other states with strong GOP majorities  – is neatly summed up in a comment from Mark McKinnon, the ad guy who made TV spots from George W. Bush in both of his successful elections.

“In this country, the arc of human rights always bends forward, never backwards,” McKinnon, a co-founder of the centrist group No Labels told Politico recently. “So these kinds of incidents are always backward steps for the Republican Party because they remind voters they are stuck in the past.”

Voters are being reminded of that reality in lots of places. In Oregon, some of the state’s most conservative Republicans are blasting the fellow GOP organizers of the 50 year old Dorchester Conference; denouncing them as “liberals” intent on advancing a pro-gay, pro-abortion, anti-religion agenda.

“In light of the unveiled agenda to promote and celebrate liberal causes like abortion-on-demand, pet campaign projects like ‘republicanizing’ same-sex marriage and the attack on people of faith and their religious liberties many of us do not feel that our participation in this year’s Dorchester Conference is welcomed,” one of the offended right wingers told The Oregonian.

In Idaho a conservative former Republican governor, Phil Batt, went straight at his party and Gov. Butch Otter over the state legislature’s failure to even consider legislation to add fundamental human rights protections for the state’s gay, lesbian and transgender population. Batt, with his own gay grandson in mind, wrote in an op-ed: “I would like to have somebody explain to me who is going to be harmed by adding the words to our civil rights statutes prohibiting discrimination in housing and job opportunities for homosexuals. Oh, I forgot, that might hurt the feelings of the gay bashers.”

It seems like a life-time ago that national Republicans, reeling from the re-election of the President Obama, commissioned an assessment of what the party needed to do to re-group in order to effectively contest a national election again. Like many such high-level reports, this one generated about a day and a half of news coverage and went on the shelf never to be read again. The GOP report outlined the demographic challenges the party faces and why the divisive debate in Arizona that quickly went national is so very damaging to party’s long-term prospects. Here are a couple of relevant paragraphs from the GOP’s Growth and Opportunity Book that was produced just over a year ago.

“Public perception of the Party is at record lows. Young voters are increasingly rolling their eyes at what the Party represents, and many minorities wrongly think that Republicans do not like them or want them in the country. When someone rolls their eyes at us, they are not likely to open their ears to us.”

And this: “Republicans have lost the popular vote in five of the last six presidential elections. States in which our presidential candidates used to win, such as New Mexico, Colorado, Nevada, Iowa, Ohio, New Hampshire, Virginia, and Florida, are increasingly voting Democratic. We are losing in too many places.”

In the face of this incontrovertible evidence Republicans have rolled out legislation like SB 1062 in state after state further alienating not only gay and lesbian voters, but likely most younger and independent voters. The GOP refusal at the federal level to even go through the motions of working on immigration reform seems certain to drive more and more Hispanic voters – the fastest growing demographic in the nation – away from Republicans candidates. At some not-too-distant point the political math, even in John McCain’s Arizona, becomes impossible for the GOP.

It is true that in our political history the fortunes of political parties regularly ebb and flow. The Whigs worked themselves out of existence in the 1850′s unable to find a set of positions that might bridge regional and ideological barriers and sustain them a national party. Immediately before and for years after the Civil War Democrats became largely a regional party that failed to command a national majority and elect a president in the years from 1856 until 1884. Teddy Roosevelt split the GOP in 1912 helping elect only the second Democratic president since the Civil War and his distant cousin Franklin, with the help of a Great Depression, created an enduring Democratic coalition – farmers, big cities ethnics, organized labor and the South – that lasted for two generations until moral and political battles over civil rights finally ceded the South to Republicans, a hand-off that now leaves that region as the only dependable base of the Republican Party.

In almost every case in our history when a party stumbles, as national Republicans stumble now, a unifying figure has emerged – FDR for Democrats in 1932 or Ronald Reagan in 1980 for the GOP – to offer a message that smooths over the ideological fissures. In the meantime, and lacking a unifying messenger, national Republican battles played out over the most polarizing issues – witness Arizona – will hamstring the party from moving forward.

Conservative commentator Myra Adams recently detailed ten reasons why the GOP is floundering as a national party. Adams remembered that the much maligned Millard Fillmore – he was president from 1849 to 1853 – was the last Whig Party president and she speculated that George W. Bush might well be the last Republican president. Her reason number nine for the current state of the national GOP was most telling. The party, she wrote, “is growing increasingly white, old, Southern, and male, which alienates majorities of younger voters, Hispanics, African Americans, gays, teachers, young professionals, atheists, unmarried women, and even suburban married women.”

In the end, the issues for Republicans are more serious even than the demographics. The party failure to re-cast itself by looking forward with attitudes and issues that address an America in the 21st Century is, to say the least, a risky gambit. Yet, the kind of a makeover that is needed seems increasingly unlikely, at least in the near term, when the loudest voices speaking for Republicans are constantly playing to a narrower and narrower group of true believers, while denying – as the 87-years young Phil Batt suggests – that the cultural and political world is passing them by.

Increasingly outside forces and insurgents like Texas Sen. Ted Cruz rather than sober-minded realists dominate the party’s message. The Koch brothers, aiming to keep beating the anti Obamacare drum, have hijacked the GOP message for the coming mid-term elections. Look for the totality of the GOP message this year to be about the evils of the health care law (and the “socialist” president) even as a new Kaiser Health poll shows Americans are increasingly comfortable with the much-debated law. Kaiser’s survey shows that fully 56% of those surveyed favor keeping the law as is or keeping it and making improvements. Only the GOP base is clamoring for something different and even those numbers are shrinking.

Another overly influential outside voice, the Heritage Foundation, was still trying to explain why the Arizona legislation was “good public policy” after Brewer’s veto. And the guy with the loudest (and meanest) GOP megaphone, Rush Limbaugh, always eager to double down on a lost cause, said Brewer was “bullied” into her veto position in order to “advance the gay agenda.” All that plays well tactically with the “increasingly white, old, Southern, and male” base of the GOP, but leaves much of the rest of the 21st Century United States very cold indeed.

Lacking the re-boot that many Republicans wisely advocated after the last national election the party, as Mark Mckinnon says, will continue to be stuck in the past. The really bad news for national Republicans is that elections are always about the future.

Remarkable, But Shouldn’t Be…

140209211519-michael-sam-top11-single-image-cutIt is a given that our culture is obsessed with football. A Super Bowl game that quickly became non-competitive recently drew 111 million fans. Top level college football programs averaged more than 45,000 fans per game last season. In football crazed communities from Boise to Tuscaloosa the college game is an occasion for tailgate parties that often begin the night before the kickoff. National “letter of intent” day when high school stars commit to college programs gets way more media coverage than the Syrian civil war.

You might say football is in a way a metaphor for American culture. We love the ritual and root for our favorites, while quietly wondering about the lasting impact of sanctioned violence on young brains. We exalt the elite coaches and their seven figure salaries all the while secretly knowing that college should be more about the classroom than the locker room. Perhaps the football-as-life metaphor never fit more snugly than yesterday when a University of Missouri defensive lineman Michael Sam, a likely high National Football League draft pick, let the world know what his teammates had known all season long.

Michael Sam, a strapping 6 foot 2 inch, 260 pounder, the best defensive player in the best football conference in the country, is gay. His knowing Missouri Tiger teammates selected him as their most valuable player after a season in which they had come to know the real Michael Sam. I can’t help but juxtapose that kind of courage and sensitivity against the head-in-the-sand bias and insensitivity of too many politicians from Boise to Sochi.

Michael Sam’s announcement almost seemed timed for maximum impact on our culture, and to his credit his timing also served to put his standing in a future NFL draft in some peril.

As the New York Times noted, “Mr. Sam enters an uncharted area of the sports landscape. He is making his public declaration before he is drafted, to the potential detriment to his professional career. And he is doing so as he prepares to enter a league with an overtly macho culture, where controversies over homophobia have attracted recent attention.” The guy who was credited with 11.5 sacks during Missouri’s 12-2 season instantly became a symbol of how quickly public attitudes are changing regarding matters of sexual orientation and, at the same time, Michael Sam set himself up – potentially – for the kind of abuse pathfinders often encounter.

The University of Missouri has something to teach the larger society about all this. “We’re really happy for Michael that he’s made the decision to announce this, and we’re proud of him and how he represents #Mizzou,” Missouri coach Gary Pinkel said in a statement Sunday night. The coach’s classy responses came in reaction to Sam’s interviews with ESPN and the New York Times announcing he’s news.

Professional sports, perhaps particularly the NFL, have long been the athletic equivalent of the Idaho Legislature when it comes to recognize the fundamental human rights of our fellow citizens. Yet, as Jackie Robinson demonstrated in another civil rights context more than half a century ago, sports can also help the larger culture confront fundamental issues. Sportswriter Juliet Macur correctly says the slow, stone-by-stone dismantling of a professional sports wall of discrimination toward gays can now, thanks to Michael Sam’s courage, fall as though pushed by a bulldozer wearing Number 52.

“Same-sex marriage laws have been passed in many states,” Macur writes, “with more to come. Gay rights have been a major issue at the Olympics in Russia, where the government last summer passed a law that prohibits the transmission of ‘gay propaganda’ to children, prompting many groups and some athletes to speak out.

“Even Pope Francis has, in his own way, recently expressed support for gays, shocking conservatives when he said, ‘Who am I to judge?’ He said people ‘should not be marginalized’ because of their sexual orientation and ‘must be integrated into society.’”

Billie Jean King, who President Obama wisely asked to represent the United States at the Sochi Olympics (and in the process stuck a thumb in the homophobic Valdimir Putin’s eye), tells CBS that it “really it gets down to humankind. … We just happen to be gay. … We need to really shift where it’s a non issue. When it’s a non issue, it will mean we’ve arrived. It won’t happen in my lifetime but it’s definitely a civil rights issue of the 21st century.”

Here’s hoping Missouri’s Michael Sam has a great NFL career, but even if that doesn’t happen this articulate, intelligent young man will have displayed the kind of personal courage that some folks in public life would do well to try and emulate. Or, put another way: if Sam had enough courage to sit for an interview with the New York Times and ESPN and discuss the most personal aspects of who he is, perhaps its not asking too much that state legislators in Boise and other state capitols finally summon enough personal and political courage to really deal seriously with the civil rights issue of the 21st Century.

We should long for the day when it isn’t.

 

The World is Watching

1391446725-new_add_the_wordsIdaho is making national news again and again for all the wrong reasons.

A quick Google search this morning turns up more than 130 stories on the 44 protesters arrested Monday in the Idaho State Capitol in Boise. Typical was the story in USA Today, a paper/digital publication with the top circulation numbers in the country, that featured the headline: “Dozens of gay rights activists arrested in Idaho.”

While the issue of same sex marriage has turned into the new civil rights steamroller across the country with state after state abandoning old notions and embracing equality the Idaho Legislature has again refused to even debate the issue of bringing the state’s human rights law into the 20th, not to mention the 21st, century.

As if anyone needed proof of how quickly the moral and legal ground is shifting under Idaho’s extra-conservative lawmakers, Politico reports today that same-sex marriage advocates are establishing a national “war room” to coordinate the incredibly diverse political battles on marriage equality that stretch now from Oregon to Virginia.

Politico’s Maggie Haberman writes: “Adding a bipartisan dimension to the effort at a time when a number of establishment Republicans are moving to back gay marriage, the war room will be led by SKDKnickerbocker’s Olivia Alair on the Democratic-leaning side, and Brian Jones, the former Republican National Committee official and Mitt Romney adviser, of Black Rock Group.”

But, as Idaho human rights advocates have stressed for years, an even more fundamental issue exists in Idaho – will gay and transgender Idahoans be afforded the same protections under the law that the rest of us already have? It is really an issue of basic fairness and equity; should Idaho law include workplace, housing, public accommodation, transportation, and education rights for its citizens without regard to “sexual orientation” and “gender identity?”

For the moment in Idaho, as in Utah and Virginia among other states, we can set aside the same-sex marriage issue that admittedly remains a hot button issue for many conservatives. Lawsuits challenging state bans on same-sex marriage, including a case in Idaho, will eventually sort out those issues. Yet, normally clear-headed legislators like Senate President Brent Hill in Idaho have elected to dodge the fundamental human rights issue yet again because they say the marriage issue must be resolved first. That is as disingenuous a position as it is short sighted.

All across this big and diverse country the idea, at long last, that all our brothers and sisters deserve the same treatment under the law – not more protection or different protection, just the same – has started to roll down, as Dr. King might have said, like a mighty river. Idaho risks much by being seen as having been hauled kicking and screaming into this new and better day.

Having been around the Idaho Legislature for more than 35 years, I have more than a little sympathy for legislators of both parties who must have struggled mightily on Monday over how to deal with a few dozen protesters who were determined to make a point and risk arrest in the process. Idaho is not unfamiliar with passionate protest even in the Statehouse or on its grounds. And, while not all of us would have chosen to protest in the manner of as those did who were eventually taken from the State Senate chambers by Idaho State Police yesterday, these fellow citizens do share some history with other Americans who chose much the same path of civil disobedience.  That history reaches back to a drug store lunch counter in Greenboro, North Carolina in 1960 and a factory floor in Flint, Michigan in 1937.

Idaho has too often had a dodgy history on matters of human rights. Locals in Kootenai County and elsewhere were often quicker to react to neo-Nazi hate groups in the 1980′s than were state officials. A saintly Catholic bishop once had to shame lawmakers into providing portable restroom facilities for Hispanic farm workers. The state was a very tardy adopter of the Martin Luther King Holiday and some still seem to barely embrace the importance of such a day. The current protest over basic human rights issues, and make no mistake this is such an issue, has a long and resonant history in America. The Idaho Legislature had best brace itself. There will be other days like Monday as citizens petition their government to right a wrong.

Fifty-four years ago last Saturday four young African American college students took seats at a lunch counter in a Woolworth drug store where the prevailing law and sentiment told them they could not sit. Those protests ended a few months later with a decision to desegregate that lunch counter and a student civil rights movement was born. Once in a while the smallest gesture sparks a revolution. A move to the right side of history is a curious thing. Once it is done we will wonder why it took us so long.

[Photo credit: Boise Weekly]

 

Inevitable

Chief Justice John Roberts cousin will be sitting in a seat reserved for family members when the United States Supreme Court hears arguments on the California same sex marriage case tomorrow. Jean Podrasky is 48, a resident of San Francisco and has been in a committed relationship for four years. She hopes to get married. It may well take the vote of her cousin, the Chief Justice, to allow Jean to marry her partner Grace Fasano because Ms. Podrasky is lesbian.

As to whether her being gay might impact cousin John’s reading of the complicated California ban on same sex marriage, Podrasky told the Los Angeles Times that she couldn’t predict, but then added the inevitable, “Everybody knows somebody” who is gay, “It probably impacts everybody.” Indeed.

Whether the Supreme Court takes civil and human rights a step forward this week in two separate cases – the California case on Tuesday and a hearing on the Constitutionality of the Defense of Marriage Act (DOMA) on Wednesday – seems almost beside the point. The country has changed, indeed continues to change, and before long the law will catch up with public opinion on the acceptance of gay marriage. The latest public opinion research shows the dramatic change in attitudes about what was, less than two decades ago, a litmus test issue for many politicians. Fully 58% of Americans, and a much higher percentage of younger Americans, support gay marriage, while about one-third still oppose.

As Frank Bruni wrote recently in the New York Times, more and more Americans have come to the conclusion that finally granting full civil rights to gay Americans is not a zero sum game. One side need not lose, while the other wins. “The legalization of same-sex marriage takes nothing from anyone,” Bruni wrote, “other than the illusion, which is all it is and ever was, that healthy, nurturing relationships are reserved for people of opposite sexes.”

All this is not to say that the Supreme Court’s action on the cases at issue this week doesn’t matter. It does. But even if the Court delays the inevitable for a while longer the politics, at least in most places, has moved on. How else to explain politicians from Barack Obama and Hillary Clinton on the left to Sen. Rob Portman on the right publicly charting the evolution of the issue. The Portman case is one of the most interesting and also most human. The conservative Ohio Republican, a man vetted by Mitt Romney for the vice presidency, came to his new position on same sex marriage after his college age son acknowledged his own sexual orientation. Portman, in the language of politics, came to possess “new information” about just how a contentious issue can work in real life. His comments about his son and wanting to support him is the language of any father who loves his kid and wants to see him happy.

Portman has said that he told the Romney campaign the full story about his son during the vice presidential vetting and he thinks the issue was not decisive in his not being picked. Well, there are no coincidences in politics, so take Portman at his word or be more cynical – and realistic – and imagine how that issue might have played with the GOP base last fall. Portman is already being threatened with a primary challenge in Ohio from the same crowd that once fought to the last lunch counter against civil rights in another era.

The sooner Republicans follow the darling of the neo-cons Dick Cheney and get on the right side of politics and history on this issue the sooner the grand old party can find its way back to national presidential relevance. Democrats who still worry about changing their views on gay marriage should listen to Missouri Sen. Claire McCaskill, a skillful politician in a conservative state, who has acknowledge the inevitable. ”I have come to the conclusion that our government should not limit the right to marry based on who you love,” McCaskill said over the weekend.

Still one has to wonder whether a state like Idaho where the legislature can’t bring itself to even hold a hearing on legislation to add the words “sexual orientation” and “gender equality” to the state’s human rights law will again be pulled kicking and screaming into another new era of civil rights protection. Idaho was among the last to adopt Dr. Martin Luther King, Jr’s. birthday as a state holiday and only did so after pressure from human rights activists and threats of boycotts in other states made such a small and symbolic move inevitable and necessary.

There is rich irony in the fact that ultra-conservative Idaho now finds itself more or less in the same boat on gay marriage as Socialist France, where public opposition to same sex-marriage and adoption legislation is encountering fierce resistance from the political and religious right. Holdouts make strange bedfellows. Even the new Pope, while serving as the Archbishop of Buenos Aires, a Catholic country where same sex marriage is legal, is reported to have quietly favored civil unions for gay Argentines as an alternative to full civil rights.

Leave it to a young American to put it all in perspective. Yale undergrad Will Portman has written eloquently in the school’s newspaper about his own struggles with his sexual identity and the possible impacts on his dad the Senator. Here’s part of what he said: “I support marriage for same-sex couples because I believe that everybody should be treated the same way and have the same shot at happiness. Over the course of our country’s history the full rights of citizenship have gradually been extended to a broader and broader group of people, something that’s made our society stronger, not weaker. Gay rights may be the civil rights cause of the moment, but the movement fits into a larger historical narrative.

“I’m proud of my dad, not necessarily because of where he is now on marriage equality (although I’m pretty psyched about that), but because he’s been thoughtful and open-minded in how he’s approached the issue, and because he’s shown that he’s willing to take a political risk in order to take a principled stand. He was a good man before he changed his position, and he’s a good man now, just as there are good people on either side of this issue today.”

I still recall with pride those Idaho state legislators who had the courage to take a political risk to support tough human rights legislation back in the 1980′s when the state’s reputation as a haven for white supremacists presented a genuine threat to Idaho’s reputation. With the perfect vision that comes with hindsight it’s now clear those decisions (and votes) were no-brainers. Some day, perhaps even sooner than many think, votes on granting full civil and human rights to gay Americans will be viewed in the same way. Makes you wonder how long some folks will cling to the “illusion” that people who love and care for each other and happen to be gay don’t deserve the same rights and responsibilities as the rest of us. Here’s hoping Idaho isn’t again among the last to take a step that is both inevitable and morally correct. Being a hold out with, of all people the French, many be really uncomfortable.

 

A Moment in Time

The Wrong Side of History

Politicians are defined by their actions, but also by what they fail to do. I’m guessing that at least some of the Idaho State Senators who voted quickly and decisively last Friday to reject – without comment or testimony – a proposal to add anti-discrimination language to state law concerning gay, lesbian and transgender Idahoans are going to come to regret their votes. They failed to act on a basic question of civil rights and those who spoke with reporters afterward had trouble explaining why.

Almost certainly it came down to politics and a concern that a vote to expand anti-discrimination protection for those “not like us” would be difficult to explain to some voters. There have always been such votes – from slavery to civil rights – and sometimes those votes put people on the wrong side of history.

The arc of history indeed may, as Dr. Martin Luther King, Jr. said, bend toward justice, but it often takes time and those who resist the march toward greater justice often find themselves explaining why they resisted.

When Alabama Gov. George Wallace stood in the schoolhouse door in 1963 in an attempt to prevent the enrollment of two black students at the University of Alabama he probably couldn’t envision that one day an African-American running back, Trent Richardson, would score the only touchdown in the Crimson Tide’s national title winning game. Gov. Wallace was on the wrong side of history more than 40 years ago and his enduring political legacy, the race baiting and the cultivation of the worst instincts of his constituents, still echoes down from those profoundly wrong moments in the schoolhouse door.

Barry Goldwater’s often exemplary political career still carries the stain of his rejection of civil rights legislation in the 1960′s.

Georgia Sen. Richard Russell was an icon of the Senate, so much so that one of the Senate office buildings in Washington carries his name. But it’s Russell’s dead end opposition to civil rights legislation from the 1930′s to the 1960′s and his bizarre explanation to Lyndon Johnson that couldn’t serve on the Warren Commission investigating John Kennedy’s assassination because he “didn’t like that man” Chief Justice Earl Warren that largely define his legacy today. Russell spent his long and, in many ways, distinguished career in the Senate, playing to the worst characteristics of his constituents on race and civil rights and he ended up on the wrong side of history.

The reverse can also be true – politicians are often rewarded for bucking prevailing sentiment, particularly when civil rights are involved.

Closer to home, few remember who opposed then-Idaho State Sen. Phil Batt’s efforts to create the Idaho Human Rights Commission, but the Commission and its anti-discrimination work remain a hallmark of Batt’s distinguished political career. The Commission, by the way, endorsed the legislation that died last week in the state senate.

Idaho was among the last states in 1990 to adopt a Martin Luther King holiday, but now the January commemoration of King’s birth and the cause of civil rights is an established ritual at the Idaho Statehouse. Young people, in particular, seem to relish the chance to celebrate King and his ideas. Few remember who voted, time and again, to defeat the King holiday idea, but those folks  know who they are and on what side of the history line they stand.

The arc of history does bend toward justice – slowly – but bend it does.

Toward the end of his life the old segregationist George Wallace, four times governor of Alabama and nearly assassinated as a presidential candidate, sought redemption, in a way, for his political sins. He spent hours on the phone calling his old political enemies, including Congressman John Lewis who was severely beaten by an Alabama state trooper during a civil rights march. Wallace found that he needed to confess that he’d been wrong with his use of race to appeal to his constituents and gain political power. He realized that being on the wrong side was wrong.

Filmmaker Paul Stekler made a great film about Wallace and came to regard him as an amazing character. “He begins gifted at politics, an idealist in some ways,” Stekler told freelance writer Maggie Riechers. “He works all his life to become governor and just when it is within his grasp, he’s prevented from winning. He then makes a conscious decision to give up his ideals and embraces racism, which gives him political success and power, more than he ever believed possible. Then at the height of his success, he is struck down. At the end of his life he goes back to his roots.”

The wrong side of history must be an uncomfortable place to be, particularly when you can’t really explain why you’re there. Dr. King said it well: “It may well be that we will have to repent in this generation. Not merely for the vitriolic words and the violent actions of the bad people, but for the appalling silence and indifference of the good people who sit around and say, ‘Wait on time.’”

 

A Tipping Point

Law Firms, Gay Marriage and Civil Rights

I once heard Sherman Alexie, a gifted writer who also happens to be Native American, have some fun at the expense of those who maintain that there is something inherently evil about homosexuality. To drive home his point that homosexuality is as old as humankind, that gays live and work with us everywhere and that the creative class – writers, composers, actors, etc. – are disproportionately represented in the gay community, Alexie challenged his audience to go home and look at the titles in their bookcase.

Chances are you’ll  find on that book shelf, Alexie good naturedly said, writers who are “gay, gay, gay, Hemingway, gay, gay…”

I thought about Alexie’s humor recently as I read accounts about the big, white shoe law firm of King and Spalding dropping out as legal counsel for the U.S. House of Representatives, which intends to defend, now that the Obama Administration won’t, the so called Defense of Marriage Act (DOMA).

King and Spalding’s then-partner Paul Clement, a former Solicitor General in the Bush Administration, had signed on to handle the DOMA case for the House of Representatives for a fee of $500,000. But apparently Clement either hadn’t vetted the representation carefully enough or the leaders of the big firm decided the high-profile gay rights case represented too much controversy. For whatever reason, the firm backed out. Gay rights groups immediately claimed creditfor getting the firm to abandon the controvesial case, editorials and politicians blasted the firm for caving in to such pressure and the firm has refused to say much beyond a terse statement from the managing partner to the effect that the representation hadn’t been adequately reviewed by the firm. Meanwhile, Clement resigned in protest and took the DOMA case with him to another firm.

At least two things are going on here. One potentially involves a fundamental principle of legal representation, the other may signal a tipping point in the long-running public debate over same sex marriage. First, the legal issue.

If King and Spalding, a 125-year old, international law firm with 800 lawyers, that represents, according to its website, clients as diverse as Coca Cola and Goldman Sachs, withdrew from the DOMA case under pressure then it deserves all the flack it’s taking. If, as seems more likely for a firm that has had partners like Sam Nunn and Griffin Bell, the firm had a breakdown in assessing a potential client (and assessing how, for example, the law firm’s commitment to diversity might be impacted by taking the case) then they get a black eye for process and public relations rather than for displaying questionable legal ethics. It’s worth noting, just to make this a bit more complicated, that two of King and Spalding’s partners are representing Guantanamo detaineeson a pro bono basis.

Everyone, it is said, from the suspected murderer to the white collar criminal, deserves legal representation. However – since I’m not a lawyer I can say this – not every lawyer has an obligation to every potential client. In fact, I’ve heard lawyer friends say it, and I’ve said it in the public affairs business, “everyone is entitled to good representation, but not everyone is entitled to my representation.”

In a New York Times op-ed piece last Friday, a Minnesota law professor made a compelling case that law firms have led society’s way in creating equal opportunities for gays and minorities. Dale Carpenter wrote, “Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.” This process has been slow, but steady not unlike the larger civil rights movement that since the 1960′s has transformed the attitudes in the professions – the law particularly - regarding opportunity and equality.

This controversy also may represent a larger societial tipping point. As Supreme Court reporter Adam Liptak writes in the Times, we may be near a point where the nation’s thought-leading “elites” – including big-time law firms, the corporate community and the media – are “racing ahead of popular opinion and shutting down” what many still believe to be a worthwhile debate.” When firms like King and Spalding spend real time, money and effort on diversity in hiring and promoting, its hard not to conclude that broad public opinion is going to follow – and pretty quickly. And that is exactly what seems to be happening.

The Pew Center for the People and Press recently reported that its surveys indicate that public support for same sex marriage continues to grow with virtually the same percentage of Americans now supporting as opposing. This trend of growing support has been evident for some time, Pew notes, while the partisan divide over the issue remains deep.

“As has been the case since 1996, there is a wide partisan division on the question of same-sex marriage. Currently 57% of Democrats favor making it legal, while only 23% of Republicans agree. Independents (at 51% in favor) are more similar to Democrats than to Republicans, in part because 46% of Republican-leaning independents are supportive of same-sex marriage, along with 58% of independents who lean Democratic.”

Ten countries, including Canada and Argentina, now recognize same sex marriage and 15 other countries, including many nations that form our military coalitions in the Middle East, recognize civil unions. It’s hard not to conclude that the course on this issue is set and, whether intended or not, that King and Spalding’s decision not to represent the Congress in the Defense of Marriage Act case could further move the debate in the direction it is already clearly heading.

There seems to be a certain historical pattern to such issues. Opponents of same sex marriage, politicians and religious leaders, invoke spiritual teachings and cultural norms as the basis of their opposition. You often hear that same sex marriage will “weaken the institution of marriage.”

In a fascinating piece in the Times Magazine recently, the author of a new book on Ann Durham, President Obama’s Kansas-born white mother, notes that when Ann married Obama’s Kenyan father she did so at a time when “nearly two dozen states still had laws against interracial marriage.” It wasn’t all that long ago – 1967  in the case Loving v. Virginia - that the U.S. Supreme Court outlawed state prohibitions against interracial marriage. Incidentally, many of the same arguments advanced today against same sex marriage were used then to oppose interracial marriage.

Not surprisingly, Obama – like more and more Americans – admits that his views on same sex marriage “are evolving.” If you talk to younger Americans you’ll find little toleration for discrimination based on race or gender. They’re way beyond such things and generally can’t understand what all the controversy is about.

In his unanimous opinion in the 1967 Loving case, Chief Justice Earl Warren, the former Republican governor of California and 1948 running mate of Thomas Dewey, concluded with these words: “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

Warren repeatedly referred in his short opinion to “basic civil rights,” guaranteed under the Constitution. The Court, Warren said, has “consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

It is undoubtedly some distance in the future, but it’s not difficult to imagine a Supreme Court justice writing the same sentence Earl Warren wrote in 1967  substituting the word “sex” for “race” and “gender” for “racial.” 

The simplest of all explanations – the logical principle of Occam’s Razor- is almost always correct. Perhaps the big, prestigious law firm of King and Spalding simply didn’t want to be on the wrong side of history.

But let’s give Sherman Alexie the last word on this subject. To those who say that gay marriage is a threat to the heterosexual, one-man, one-woman institution of marriage, Alexie says, not true. “Gay marriage does not threaten my marriage.  Beautiful, easy women with no boundaries threaten my marriage.  I don’t need anyone else’s help.”