Ari Ezra Waldman | Law - Gay, LGBT | News

2011, A Banner Year for LGBT Rights


It is customary to look back each holiday season to assess the successes of the past year and remind ourselves how far we have come, where we need to go, and whom to thank for both. Our year was cabined by two striking moments: Just before 2011 began, Congress repealed the odious "Don't Ask, Don't Tell," and just before 2011 ends, a lesbian petty officer kisses her same-sex partner in the ceremonial first kiss upon her ship's return. But, the steady advance toward equality in the military is just one reason why 2011 may have been the best year for gay rights since Alexander the Great ruled the known world.

EarthHow do we continue our undeniable progress into 2012? This is why we look back: to determine what worked, who worked for us, who worked against us, and what strategies are better than others. I argue that there are three clear lessons from the banner year of 2011: (1) President Obama has not only done more for our community than any president in history, but has indeed been the "fierce advocate" he promised to be; (2) litigation can be more successful than disorganized political activism; and (3) the old advocates, gay rights organizations, and institutions collectively (and derisively) called "Gay, Inc." can still be relevant if they adapt to a world that is no longer characterized by an inaccurate "Will & Grace"-like conception of LGBT people.

AFTER THE JUMP, let's review the facts of a gay 'ole 2011 and then, let's draw conclusions from those facts.

Olson_boiesProp 8: Early this year, the Ninth Circuit certified a question of state standing law to the California Supreme Court. Some in our community used words like "punted" or "avoided," but the court was really being thorough, ensuring no legitimate rationale for undermining its ultimate merits decision. California's highest court eventually determined that ProtectMarriage, the citizen proponents of Prop 8, have standing under state law to step into the shoes of the state to defend Prop 8 on appeal. As I argued here, that decision was expected, but based on faulty reasoning. But, the decision put Perry back on the fast track to a decision on the merits. Shortly after the California Supreme Court made its decision, the Ninth Circuit saw briefing and heard argument on the appeal of the grant of the motion to release the videotapes of the original Perry trial and on the appeal of the denial of the motion to vacate the original lower court decision because Judge Vaughn Walker is gay and was in a long-term same-sex relationship at the time of trial. I argued here that affirming the latter was a slam dunk, while affirming the former was unlikely.

Still, look how far we have come: The Prop 8 litigation -- thanks to the American Foundation of Equal Rights (AFER), its legal team run by Ted Olson and David Boies -- gave us the first federal court decision declaring gay judges can be impartial on gay rights cases, and it gave us a federal court's declaration that no evidence exists to suggest that natural procreation was ever a purpose of marriage, that no rational reason exist for keeping gays and lesbians out of the institution of marriage, and that marriage discrimination is an example of state action that classifies individuals on the basis on sexual orientation, which merits heightened scrutiny. And, let us not forget that Perry gave us a forum to say that marriage discrimination is unconstitutional.

We have to ask ourselves what -- or whom -- helped create these successes. The answer is clear: AFER, Ted Olson, and David Boies, and the recognition that the courtroom is our friend. Remember, certain gay activists initially balked at the involvement of the conservative Mr. Olsen, worried for an intrusion onto their turf. I dare them to voice those concerns today. Plus, had we not taken the litigation path, our rights would be at the mercy of the misleading advertisements in a popular vote and the flaky whims of a pliable voting population.

Gay-marriage-nyMarriage Equality in New York: On June 24, the New York State legislature sent Governor Andrew Cuomo a bill to legalize same-sex marriage in the Empire State. The law took effect one month later, making New York the largest state by far to allow our community entry into the institution of marriage. The methodical legislative strategy culminated in endless meetings with several Republican state senators to tip the balance for marriage equality in the upper chamber. And, despite a few Republicans who used the back door meetings to push their own agenda -- and despite the anti-gay vitriol that spewed from Ruben Diaz -- the bill passed.

Who brought us here? Governor Cuomo was one of 2011's strongest gay allies. Right up there with Senator Kirsten Gillibrand, Governor Cuomo's unique blend of moderation, effectiveness, and strong advocacy skills almost made marriage equality a foregone conclusion. But, it was the years of work by Alan Van Capelle and the Empire State Pride Agenda setting the groundwork for marriage equality, and Brian Ellner and an effective advocacy campaign from the Human Rights Campaign and New Yorkers United for Marriage that kept the pressure on. What distinguishes the New York advocacy effort from the impossibly territorial and unfocused effort to put Prop 8 on the ballot in California was the unity and cooperation of the former. In California, Equality California, which botched the 2008 Prop 8 effort, has fallen apart, and it's not known whether newcomer "Love, Honor, Cherish" has the experience, the money, the respect, or the skills to do what Mr. Ellner and the marriage coalition did in New York.

Dadt"Don't Ask, Don't Tell": Though the Repeal Act was passed in 2010, the law was signed away this summer and brushed aside in September. Sure, Elaine Donnelly is still apoplectic and various organizations with the word "Family" in their names are still obsessed with sexuality. But, the United States military is not only functioning, it is thriving: The Marine Corps is recruiting at gay pride events, lesbians are getting the first kisses when their ships return home, all branches are re-admitting previously discharged gay service members, and harassing incidents have been exceedingly rare.

This year marked the end of the odious law, but it means more than that. To suggest that who you are makes you incapable of serving your country is the height of hate and un-American. The recognition that gays can serve openly also means that if we allow gay soldiers to fight and die, how can we not allow them to marry the ones they love, or extend benefits to those loved ones, or allow them to marry on base chapels, or grant their families access to Tricare, and so on. the end of "Don't Ask, Don't Tell" means a lot.

So, it is worth once again asking: how did we get here? DADT was repealed by a Democratic Congress, with significant support from a Democratic president. And, while there were Republican senators and representatives who voted in favor of repeal, this bill would have never come to the floor had their party controlled even one house of Congress. Repeal was a striking statement from our Democratic allies in comparison to our conservative opponents, but not a very brave one: Repeal was supported by upward of 70 percent of the American public. Still, the DADT saga showed us who has our interests at heart: Senators Levin and Lieberman took the lead, but Senators Gillibrand, Feinstein, Schumer, Reid, and a host of others made this vote about morality and fairness than anything else. It showed that Senate Republicans want nothing to do with gay equality when, as stated by Senator Collins, it means going too fast. It showed that John McCain is a mercurial, excitable man set in his ancient ways, that Scott Brown thinks being a "moderate" means doing everything half-heartedly, and, as evidenced by the hearings to propose complicating roadblocks to repeal, that House Republicans are dominated by those men and women who feel a calling to do anything in their power to stop the progress of gay equality.

DADT was also repealed in the context of dual political and legal strategy. Log Cabin Republicans v. United States scared the Pentagon and institutionalists that if the legislative repeal process fell apart, a California federal judge was going to abolish the ban on a dime, throwing the methodical military into alleged upheaval. The Servicemembers' Legal Defense Network lobbied hard, but the Human Rights Campaign was late to the party. Together, a united political lobbying effort and a well-reasoned legal argument made the Repeal Act possible.

WindsorDOMA: In February, 2011, President Obama took his greatest step to date in support of gay rights when he and Attorney General Holder issued a letter to Speaker Boehner declaring it Administration policy that sexual orientation discrimination merits heightened scrutiny and that, as such, the Administration will no longer defend DOMA, the so-called "Defense of Marriage Act," that declared opposite-sex marriage the only possible marriage under federal law. This means quite a bit for the ongoing DOMA challenges -- Gill, Petersen, Windsor, and others -- because the executive's position is always given high regard, but it means more than that: President Obama is the first president to make it official government policy that anti-gay discrimination is antithetical to American principles of equality and due process. And, for those in the lawyerly biz, we know the importance of heightened scrutiny. Without it, a state actor can pick any reason out of a hat to discriminate against us; now, he has to pass a much higher hurdle. Already, this policy has resulted in various courts, including the Los Angeles bankruptcy court, to declare DOMA unconstitutional.

How did we get here? Thanks to President Obama and his lawyers and advisers. The lawyers who advised President Clinton, including some oddly prominent ones poking at President Obama from the sidelines, consistently advised caution on gay rights. Chastened from the gays in the military fiasco, they proposed DADT as a supposed compromise and told Mr. Clinton to stay away from gay issues. Then-Senator Clinton, when she ran for the Democratic nomination, did the same. President Obama may still be "evolving" on the issue of marriage, but his support for gay equality has been full-throated.

President Obama voiced support for marriage equality in New York, has sent letters of congratulations to married same-sex couples, and allowed his cabinet secretaries to voice unmitigated support for same-sex marriage. President Obama is indeed evolving, and history will prove that it was a good idea to trust a man who has done so much on our behalf.

ClintonForeign Policy and Immigration: At the direction of President Obama, Secretary of State Hillary Clinton recently made it clear to the world that the United States believed that human rights are gay rights, and gay rights are human rights, and those countries that deny either are no friends of Washington. While the memorandum connected to the speech was light on details -- admittedly, all United Nations documents are light on details -- Secretary Clinton's speech had extraordinary rhetorical value.

Also at President Obama's direction, the Administration has basically put an end to the deportations of the legally married foreign national spouses of same-sex American citizens.

Extension of Federal Benefits: President Obama extended various federal benefits to gay couples through executive order, but even more important than that, Lambda Legal secured victories for gay federal employees seeking federal benefits.

There have been other developments -- some good, some bad -- but before we get bogged down in minutiae, the pattern is pretty clear. We owe 2011's progress to President Obama, the incomparable Ted Olson and David Boies and the AFER team, and the legal strategies they all employed. President Obama knew that more progress could be made through heightened scrutiny than anything else, and AFER knew that putting Prop 8 back on the ballot would make marriage rights nothing more than a ping pong ball.

We have more to do in 2012 -- DOMA must be declared unonstitutional by the federal courts and we must pass employment non-discrimination -- but, as we get closer to the precipice of the 2012 election, our victories in 2011 remind us who our allies are, that our advocates need to unite, and that President Obama has done more for our community than anyone likely imagined realistically possible.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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  1. Ari Ezra Waldman is exaggerating Obama's achievements. Obama, in fact, has done little or nothing to further the cause of gay rights this year. I can't think of one legislative achievement. Keep in mind that DADT was reluctantly repealed in 2010, not 2011.

    Keep your political nonsense to yourself, Ari. We in the broader community are fed up with Obama's lies and distortions. Obama panders to us when he needs our votes and/or our money but then fails to deliver.

    I'd much rather for Mitt Romney than Obama next year. And that is exactly what I intend to do.

    Posted by: jason | Dec 22, 2011 6:49:24 PM

  2. When a male petty officer kisses another male petty officer, that's progress. I'm still waiting. Probably will never happen. Certainly the liberal media won't gush over it in the same way it did over the females.

    Posted by: david | Dec 22, 2011 6:52:39 PM

  3. @Jason -

    Obama is not a member of the legislature. He is the executive. It might be worth bearing that in mind when assessing his efficacy.

    Also - I'm not sure which broader gay community you're referring to, but based on your preference for Romney, I'm not sure you're really part of it. You certainly don't speak for me.

    Is Obama's silly "evolution" equivocation on marriage infuriating? Yes, but anyone familiar with the agony caused by DOMA deportations, lack of HIV/AIDS funding and services, or the murder, rape and torture awaiting many LGBT people in our world will recognize heroism and compassion in Obama's actions as president.

    Talk about lies and distortions. You need to get some perspective.

    Posted by: CDA | Dec 22, 2011 7:01:19 PM

  4. I hardly think President Obama has been a fierce advocate. It took the pressure of advocates to make these achievements possible. That said, he has been better for us than any president in history, and any petulant fool like Jason above who wants to vote for someone like Mittens will get what they deserve...utterly less than nothing.

    Posted by: ChristopherM | Dec 22, 2011 7:01:39 PM

  5. @ Jason,

    Romney is being loyal to the Christian Right. He wants to add an amendment to the U.S. Constitution outlawing same-sex marriage. He's mentioned the idea of bringing back DADT. Think about that kind of hate and demonizing coming out of the White House. Do you even care about the effects of a president who supports that kind of hate? I don't think you'd want to be a gay high school student under those circumstances. Or a serviceman in the armed forces. But then, why should you care? Gay kids die. Servicemen's careers go down the tubes because of Romney's new DADT. You laugh.

    Posted by: Artie | Dec 22, 2011 7:22:55 PM

  6. Also at President Obama's direction, the Administration has basically put an end to the deportations of the legally married foreign national spouses of same-sex American citizens.

    Not so. Here in LGBT-rights-leading Vermont, the US Immigration "service" is trying to boot out the Japanese wife of an American woman. The Story is AP via the Burlington Free Press (mainstream daily):

    Sweeping statements do not a reality make in everyday life.

    Posted by: Nanuq | Dec 22, 2011 7:27:20 PM

  7. Thanks Mr Pres, you have made our lives better. You have fought harder that any republican including Romney. The majority of us in the "broader" community stand with you and you will win the majority of the "gay" votes because you deserve it. What the "broader" community is not buying is Romney's bull sh-- around gay rights. But he will have the backing of gay republicans. Good article very true

    Posted by: George M | Dec 22, 2011 7:56:00 PM

  8. I agree that the President is not a legislator but he does have the privilege of the bully pulpit. He has been remarkably lacking in his use of the bully pulpit to push for gay rights causes. He's been big on tokenistic gestures and promising comments but that's about it. There's nothing substantial there.

    Obama is like the Christmas present you get with all the shiny paper and fancy ribbons. You eagerly unwrap it in the expectation of getting a lovely gift, only to find a souvenir boomerang.

    Posted by: jason | Dec 22, 2011 8:20:04 PM

  9. @jason: you are totally welcome to bring your opinion to the discussion, but i spent 2000 words supporting my conclusions. i see no evidence in support of your conclusions. you just say the president has not done stuff. well, HOW has he not used the bully pulpit -- even though he used a big one at the UN; HOW has he made only token gestures -- I think heightened scrutiny, not defending DOMA are just two very concrete and meaningful gestures. I respect your views, but, with all due respect, I do not yet value your contribution to the discussion.

    Posted by: Ari | Dec 22, 2011 8:34:28 PM

  10. Ari,

    How about fixing gay rights in the US first? President Obama was elected by the people of the US, not the world. He gained our votes on the basis that he was going to be a fierce advocate for gay rights in the US. His advocacy is more like a damp squib, as time attests.

    Keep in mind that the President has the ability to issue executive orders. What has he done in the way of gay rights when it comes to executive orders? I can't see anything of substance.

    While I admire the passion of your political shilling for Obama, it's not going to swim with the broader gay community.

    Posted by: jason | Dec 22, 2011 8:40:34 PM

  11. "since Alexander the Great ruled the known world."

    But he didn't. He didn't rule China, Southeast Asia, Korea, sub-Saharan Africa, Northern and Western Europe, and neither of the Americas. All of these areas were populated and thus known.

    I know you probably didn't think much about that throw-away line, but its a product of a very limited (and limiting) perspective on world history that stems from an overly pro-Greek/Roman bias in many older history texts. Its also mildly demeaning of those groups that fall outside of the "known world." The Chinese, for example, gave us paper, which has lasted longer than Alexander's empire. For that matter, the nation of China has existed continuously as an independent nation for much longer than Greece or Macedonia or Rome ever did/have.

    Posted by: jdb | Dec 22, 2011 8:45:37 PM

  12. Jason:

    An executive order is one of many powers afforded to Presidents, but so is an instruction to the DoJ, and yet you don't give Obama any credit for his command not to enforce DOMA. Why is that?

    Also, which specific rights are you referring to that we currently don't enjoy that Obama has the ability to grant via Executive Order?

    You really want gay rights "fixed"? Do you really think that one person - even a POTUS - can do such a thing in less than one 4 year term? Do you think your man Romney is going to do that?

    I'm so sick of the priorities of the mainstream gay community in the US. I used to share them, and I still think they're important, but if you really want to understand what is really important to LGBT people and what we should be focusing our clout/efforts on, you should spend your time volunteering with LGBT groups and see how bad it really gets.

    The most vulnerable among us are not the people who have to settle for civil unions in Rhode Island or who can't use their preferred gender bathroom in Pennsylvania. They're the people who didn't know about asylum and missed the 1 year deadline, and will be deported back to a place where gays are lynched and HIV care is horrible; they're the African man who gets beaten and lit on fire in broad daylight for being gay; they're the lesbian who gets raped until she "understands" how a "real man" feels; they're the people who are homeless, with drug problems and HIV before the age of 18. If you read Ari's article, he cites that Obama has stood up for LGBT people around the world and at home. America has the bully pulpit for the world, and Obama and Hillary are using it to far more productive ends than to achieve the civil reforms that we all desire domestically.

    Posted by: CDA | Dec 22, 2011 9:17:52 PM

  13. CDA,

    You cite a number of pity-worthy incidents. Yes, they concern me. But it is not Obama's domain to be ruling for the world. The world did not elect him.

    Obama is President of the UNITED STATES. His promises leading up to the vote were unequivocal: I will be a fierce advocate for your rights, he thundered. Well, he's been in power over 3 years and all I've seen is the occasional glimmer through the clouds.

    Glimmer doesn't count for much, you know.

    Posted by: jason | Dec 22, 2011 9:49:40 PM

  14. I did a comment but don't know where it went...
    Jason you really think the majority of gay voters are going to vote for the right? Really do you think that?

    Obama is not perfect by any means, but for me hes the one we need. Romney will do nothing for gay rights, as time goes on he will do more work for the religious right. The religious right is ramping up and will be out in force next year, you think any moderate republicans will win? Or stand with us on gay issues?

    Just because he is not in people's face does not mean he's not with us. Every little bit helps, appointing gay people, changing policies, including us and inviting gay bloggers to the white house to hand him his ass matters. For me it's better to keep what we know, Romney will never be what you think he will be.

    I get the dems had both houses last year but every little thing needed 60 votes, little to NO help from the right. The tea part hates us, they own the speaker and today when he caved proved it. Obama couldn't work for a tax cut on the richest people, the republicans would stop him.

    Your guy signed a marriage pledge, wtf! Have you read it? Obama may not like gay marriage but he would not stop you from having it. Your guy wants to ban all state gay marriages. He's not perfect I know that we All know that but against Romney please.

    You do what's right for you but I think you see the world very differently. Executive orders run the risk of being over turned by the next anti gay republican president. Romney would do it in a heart beat, he wants religious votes and he'll need them. I truly believe the majority of gay voters will see through Romney's bull, that's all it is. I don't get it
    Here's to everyone getting what they want for Christmas!!!!!'

    Posted by: George M | Dec 22, 2011 10:02:01 PM

  15. I was initially very unhappy with the Olson/Boies challenge to Prop. 8, and nothing has changed since then that has made me change my mind. Indeed, the one thing that made have made a difference -- the chance that the standing issue might have insulated Judge Walker's ruling from appellate review -- has largely been nullified by the California Supreme Court.

    The fact that the case was first heard before a sympathetic federal judge, who then issued a strongly favorable decision, is irrelevant to its long-term prospects. What counts is the final decision, not the initial one, and with the standing question removed, that will probably be the US Supreme Court. While its prospects look better there than in 2009, given improved polling numbers and some high-profile victories, they still don't look too favorable.

    Perry v. Brown is here to stay. Given that, it's important to try as hard as possible to help it succeed, and so it's entirely appropriate for LGBT legal rights organizations to have dropped their criticism and lent what aid they could. But that tactical consideration doesn't nullify the legitimacy of the concerns the critics had, concerns that have not lost their force.

    Posted by: Fodolodo | Dec 22, 2011 10:09:55 PM

  16. Jason -

    I realize your point re: putative responsibilities, but I don't find it especially compelling. I don't think you'd argue that Obama has no power to change the things I mentioned... to wit, he might have more power than anyone else in the world.

    I see that my argument from empathy doesn't sway you, but I don't think you're arguing that he shouldn't advance international LGBT rights, just that all/most domestic issues should take precedence over all/most international ones, regardless of gravity. That's a matter of opinion, and I will save my arguments about queer politics for another time.

    As domestic issues go, I would say that I think your expectations for what Obama could have done are unreasonable. I still have not seen you mention anything that a president can or should do (and that he didn't do) that would qualify as "fierce." I think you're underestimating the amount of political capital Obama had, how little of it he derived from a small gay donor/voting base, and the massively high cost to benefit ratio of advancing gay rights with an intractable (and lately mixed) legislature in the face of myriad other problems that people outside of this board care more about.

    In truth I have rarely been satisfied with Obama's record on domestic issues, but I think he has done much with little and indisputably more than every other president combined (as is detailed extensively above).

    Posted by: CDA | Dec 22, 2011 10:25:16 PM

  17. After what you said Jason "fierce advocate" I guess that's what it comes down to, people in the gay community will have to decide if it's been enough.

    Posted by: George M | Dec 22, 2011 10:35:15 PM

  18. Litigation more successful than activism? Spoken like a true lawyer. But the two biggest accomplishments of the year, marriage in New York and the DADT repeal came about primarily through activism and not litigation. Meanwhile Prop 8 continues to slog it's way through the courts with no end in sight. If we had just done another vote we could probably marry in California today.

    Posted by: Ken | Dec 22, 2011 10:56:02 PM

  19. On Obama: Better late than never. Yes, in 2011 he has finally acted like a fierce advocate. But I can't forget that the first two years of his Presidency were a huge missed opportunity. We had a large Democratic majority in Congress that could have passed a lot of the things he is now advocating for. But with the current Congress nothing will actually get done.

    Posted by: Ken | Dec 22, 2011 11:05:58 PM

  20. You wrote an article on why 2011 may have been the best year for LGBTs since ancient times and you didn't bother to include examples outside the United States?

    How about the Social Democratic party of Germany pushing for marriage equality as one of its most important promises for the upcoming elections and to ending discrimination in adoption laws? David Cameron's ultimatum to anti-LGBT countries that need financial aid? Elio Di Rupo becoming prime minister of Belgium?

    All of these are fantastic deeds and I'm sure there are plenty of others too that showcase that this year's grandeur is not endemic to the U.S.

    Posted by: Lance | Dec 22, 2011 11:07:04 PM

  21. Ken
    True the dems had large numbers but not enough. The filibuster was more popular then the president. The dems had blue dogs, independent Joe and NO help from republican to get over the 60 votes needed. We had more then enough in the house but not in the senate.
    It's not fair to say he had a bullet proof majority.

    It won't be better with a republican president. He never said it would happen in 4 years or one term. Winning in states is So important and we need to continue, we don't need a president working against us waiting to sign a ban on gay marriage. The republicans are trying to do away with marriage in NH, in michigan republicans are trying to over ride town anti gay discriminations laws, the voters approved it by 60% and they want them gone. In iowa they still want to end marriage. It will hurt having someone like Romney in the white house. Obama is not perfect but he is Way better then what we could get

    Posted by: George M | Dec 22, 2011 11:43:25 PM

  22. I'll be voting for Mitt Romney should he be the candidate for the Republican Party. I urge other gay people to do the same.

    Posted by: jason | Dec 22, 2011 11:48:30 PM

  23. @ Jason

    That is fine is you have conservative views; but keep in mind you are encouraging other gays to vote for a man who says we should not be allowed to merry, we shouldn't be able to serve openly in the military, and who belongs to a church whose members would disown and or torture a family member for being gay.

    Posted by: Brian in Texas | Dec 23, 2011 12:07:07 AM

  24. Brian in Texas,

    Mitt Romney doesn't hold those views. He's more gay-friendly than Obama.

    I think what sealed it for me was the female-female kiss that received wide publicity yesterday in San Diego outside the Navy facility. Liberals would not have allowed it if it were two men. That sealed it for me.

    Posted by: jason | Dec 23, 2011 12:17:40 AM

  25. He doesn't hold marriage view? Your voting for him over a kiss?

    Posted by: George M | Dec 23, 2011 12:35:11 AM

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