Phil Reese

Screw playing the game, let's take it all to the courts

Filed By Phil Reese | December 10, 2010 3:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: constitutional rights, Democrats, federal court, law, legal, Republicans, trial

I should, of course, preface this post by saying that legislative appeal isn't actually dead at kissmyass.jpgall. Though there is no word on who will push it (and how fast) in the House of Representatives, Senator Lieberman (I-CT) and Senator Collins (R-ME) have already filed a stand-alone Don't Ask, Don't Tell repeal bill that they are sure will get sixty votes; so I encourage you to keep calling and keep faxing until your Senators get to know you so well, they add you to their holiday card list.

However, if our lawmakers keep letting us down, we've still got one more ace: the courts.

Let's face it, nobody can say either party treated us well in 2010. As sad as the situation may be that we won DADT-repeal in the House only to (as far as we can tell now) lose it in the Senate; far more depressing is that the consistently promised Employment Non Discrimination Act never even saw a committee markup. The Uniting American Families Act was blown off completely. Let's not even get started on a Safe Schools bill, the Domestic Partnership Benefits and Obligations Act or Defense of Marriage Act repeal.

Forget it. After Hate Crimes, Democrats figured they were done with the queer stuff. "That's it. We did something for you. Now pay up and vote for us." However, we can't just blame this on the Democrats. Our so-called "moderate" Republican "allies" like Mark Kirk, Olympia Snowe, John McCain and others all took a hard turn to the Fascist, unnerved by the rise of the Tea Party.

Why be on the right side of history, when you can win your reelection instead!

Its disgraceful, and our community will come out of 2010 sadly jaded, cynical and unwilling to participate in the political process any longer. We see it already. On election day, LGBT Democrats just plain stayed home. Or they switched. However, we're already seeing buyer's remorse from many in that crowd, after seeing the nauseating displays of political cowardice by the likes of John McCain and others. Even more people that are likely to sit out the next election day.

However, Bil doesn't seek out my instant messages at 8:00AM for nothing. I am the eternal optimist--even at the moment I most want to pick up this MacBook and lob it across the room. There's always a bright side.

The courts.

When playing the game screws you, screw the game back.

I'm not new to politics by any stretch of the imagination, however, the past four years have been the most frustrating of my politically aware life because of the infinite examples of squandered opportunities. The performances by our elected officials are beyond incompetent. As a manager, I'd have to say, if they were my employees (which technically they are, but I'm only able to pick three of the lot of them, and even then the decision is shared), and I had sole authority to hire and fire, you can bet every Staples in the DC metropolitan area would be sold out of banker's boxes, and U-Haul would be booked solid for a month.

Our lawmakers suck.

Its not that I'm nostalgic for a 'better time' or another nation's system, because quite frankly there are monstrous problems with all our world's governments, and there's never been a time in American history when the government wasn't riddled with immature, dishonest slime. Integrity has always been an endangered species in Washington. And by endangered, I mean like the way the dodo bird or messenger pigeon are endangered today.

And why not?

What do we do with our lawmakers that even have a shred of integrity? Ask Russ Feingold or Carol Moseley-Braun. It seems that being a sleaze pays in election years. Which is why Orrin Hatch always has a job.

So, really, we suck. We suck at participating in our own system. I wish it was different, but this is the hand we've been dealt now.

What's worse is that the LGBT community has come to believe we can count on the greater progressive movement to go to bat for us. Now, I'm speaking as a progressive: I'm staunchly opposed to taking away a woman's right to choose, I'm impatient for better health-care reform and ANY immigration reform at all, I'm waiting for my government to do its job at reversing climate change, and I'm ready for better social programs that reduce or eliminate poverty and racial inequality in this country. Not to mention education and public transit--two majorly huge issues for me.

And as such, I'm on all of those email lists.

So When the LGBT community groups revved up Wednesday trying to be incredibly loud to push the Senate to make the right choice, how many emails did I get from non-LGBT groups begging members, constituents, supporters, donors--whatever--to call the Senate on the bill?


Organizing For America made sure I knew the vote was up, and did a nice job of it. I kept waiting for more Progressive groups to stand with their LGBT brothers and sisters. After all, during the health-care debates LGBT groups pushed members like crazy to call Congress, LGBT groups had us jumping over the DREAM Act--why wouldn't the rest of the Progressive nation come to our aid at the zero hour? You're probably all on different lists than me, so if you saw anything else from a non-LGBT progressive org that day, please correct me.

[UPDATE: Adam Bink of Open Left and Bilerico Project informed me that MoveOn put out the call today to join the rally at the Capitol. Thanks Adam!]

[UPDATE 2: Through another mass mailing, Arshad Hasan, the head of Democracy for America alerted me to the fact that DFA also called their members to contact Congress and make thousands of calls to repeal DADT. Many thanks to DFA--that one slipped past me]

I want you to look at a screen shot I took Wednesday of my daily Huffington Post email summary, which I will surely no longer be subscribing to, and will likely never ever link to ever again. Here, at crunch time, when the web's most visible voice on progressive issues was most needed in calling attention to a vote scheduled for THAT DAY; here is what were the most important news items:

Screen shot 2010-12-08 at 11.07.02 AM.png

Who's breaking up with who? I definitely need to know celebrity gossip today. No mention of DADT anywhere in the email. Screw you Huffington Post. Unbookmarked. Thanks so much progressive 'big tent' for not giving a flying frak about a really incredibly hard-fought LGBT victory.

So do we just quit? Is it all over? We still got one more trick up our sleeves.

When your "friends" screw you, go over their heads.

There's a reason why "Why don't you make a Federal case out of it" is a saying. Federal Court cases are a big deal. They are expensive. They drag out. They have great potential for backfiring. However, if they are successes, the political landscape can change in an instant. Federal case decisions have great impact, and they can often be a double-edge sword.

However, momentum is in our favor. We've got money, and our elected officials--and even, it seems, some of our political organizations--clearly don't seem to care if we give it to them or not. What if we pumped a massive influx of cash into our LGBT legal organizations? What if we packed the Federal Court system with DADT and DOMA challenges, wrongful termination suits, challenges to state law. The courts aren't Republican or Democrat. We can all unite behind the cases and forget about the poisonous partisanship in Washington. They won't give us our rights, then its time we take them!

What would an avalanche of LGBT court victories mean? I can guarantee you it would lead to backlash on Fox News. The "Judicial Activism" of giving American citizens their rights would be decreed from sea to shining sea, and the far right would use every LGBT victory as another example why they should be picking all the judges. In a few years, wing-nut rhetoric, driven by irrational fear and ignorance, would help elevate crazy right-wing wackos to Federal benches all over the nation.

It'll also put pressure on our progressive lawmakers, getting caught in the wake of the backlash. If the left has a smattering of victories in the court, its going to suck to be an elected official on the left.

Last, the President will be in a really awkward position. Taking the government to court means taking the President to court. His Department of Justice will be forced to fight back against us in court defending the current law; making it difficult for him to keep talking out of both sides of his mouth on LGBT issues, on one hand advocating for equality, on the other hand defending discrimination in court.

Right now we have LCR V USA--the case that the Log Cabin Republicans brought against the government over DADT. We have Gill V Office of Personnel Management, Windsor V The United States, Golinski V OPM, Massachusetts V Dept of Health and Human Services and Pedersen V OPM which will all have an impact on DOMA. In all of these cases, the President's DOJ is defending the Government's interests in continuing discrimination.

Imagine instead of six such cases, there are sixty. The President would have to decide whether he continues to let his Justice personnel file homophobic briefs, make evil arguments and continue to undermine his own statements on supporting equality, or if he finally take the bold but valid choice to not defend these awful backward laws in the courts. The pressure will be exponentially greater for him to go that route than it is today. Otherwise he would be faced with more accusations of insincerity. At the same time, all sorts of progressive victories in the courts would make GOP lawmakers put pressure on the President to make more conservative appointments.

But who cares? By that time we would have argued at least half of these pending cases to the Supreme Court--a split Supreme Court right now that President Obama may even yet get additional appointments to. We'd have our victories in the bag. Whichever other progressive causes come up behind us in the system will be the ones stopped short in no time and have to wait for the natural softening of these judges over time that tends to happen. Not us. We'll be done.

Court cases are wild cards, which is why our leadership is so cautious to jump into them. However, history is on our side, and so is momentum. If we invest copious resources in victories from bench to bench, we'll be unstoppable. No more "who's holding the cards in Congress now" roller-coasters; the sausage-making of Washington. We can tell Collins and Snowe to go suck an egg. Let's make every effort to push these fights into the courts.

Statewide, we've been making headway in many states, and I by no means mean to minimize the great work being done in state legislatures, but nationally, I think its quite clear we can't even count on our best of friends. What if the ACLU, Lambda, AFER, GLAD and NCLR were all two, three, four times as big as they are now? What if we had the cash in the movement to snatch up every great lawyer in the nation to work full-time on our cases?

A political and media strategy would still be necessary. Court decisions can be undone by new judges. Constitutions can be amended. We can lose our victories if we don't defend them. We'd need to maintain campaigns that continued to build political power and put pressure on politicians. We still have a lot of work we need to do with the public to undo the myths and untruths they have been spoon fed about transgender, bisexual, lesbian, gay and queer Americans. However, my whole life as an activist, we've feared taking our issues to court. I used to think it was because we were afraid to lose. But I'm starting to think more lately that we're afraid to win.

Winning has a fallout. Winning means a backlash. Winning means a judge that writes a favorable decision for an LGBT case is now a marked target by NOM, the AFA, and the right wing. That could mean that climate change, education and transportation reform, immigration reform and other issues I care deeply for could have a tough time in courts coming up behind our victories.

However, I ask, where were those advocates on Wednesday? If we're going to have to go this alone, we mine as well put our all into it and have a go of it. Let's paint the courts rainbow!

Hey LGBT youth: get thee to a law school!

Finally, all you LGBT youth finishing up your undergraduate degrees, wondering what to do next, we need all of you in law school immediately. Let's pack the system with queer lawyers. In ten years I want "lawyer" to be as associated with sexual and gender-identity minorities as "florist" and "P.E. teacher" used to be, and as "successful TV personality" is today. We will need much people-power behind these cases as possible as they wind their way slowly through the system. We need a nation-wide legal brain-trust that constantly contributes to Federal home runs.

Gill Foundation? Arcus? We need to assure as many LGBT law students as is possible get their education for free, so after school they're free to contribute their talents to the fight 100%. Let's make queer the majority in every law school in the country.

Current queer law students? We need you to finish and finish well. Nose to the grind-stone--we need all of you at the tops of your class when you finish so that we can see you in jobs afterward that give you the means to do what you can for these cases. We need lawyers, lawyers, lawyers.

Its time to fight dirty. I'm unwilling to believe my rights are bargaining chips bought and sold at the mercy of the sociopaths we call our Federal Legislature. They've yet to show themselves as real advocates. In fact, they've been showing their true colors all along. Let's go over their heads and leave them in the dust.

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Not that it excuses a lack of a call drive, but FWIW, I got an e-mail from MoveOn asking me to attend today's rally on Capitol Hill.

Thanks for the great post. I think the courts may be our only hope. The DADT debacle testifies both to Obama's incompetence and to the dysfunctionality of our legislative branch, as well as to the depth of hatred held by Republicans toward us, or at least toward gay rights. The inability to pass DADT indicates that we have no political power, which is an important fact in terms of whether anti-gay legislation should be subject to heightened scrutiny by the courts.

But we must be smart here. One of the great lapses of HRC and other national glbt rights groups was to ignore the judicial election in Iowa in November. Three of the justices who stood up for marriage equality were voted out. We must not let that happen again. State judges, who are often elected or at least subject to votes on retention, are going to be afraid to rule in our favor if they know they will be targeted by our enemies.

Also important is to note that court wins can exacerbate public divide on the issue--look at Roe V Wade, and even reaction to Lawrence V Texas. Court wins aren't wins in the court of public opinion, that's for sure. But I'm willing to risk it. I'm willing to reinforce those homophobes' dislike of me as long as it means we get rights. The goal is equality in the law, not to convert every last retired bumpkin that hates us.

Until we enroll people to stand with us, the Courts are the only realistic option. Imperfect, but realistic.

Politics is a game and when you understand that game suffers without our issues, you realize we are simply being used.

We need to educate, enlighten and enroll.

Really? The Obama administration is going to continue to be taken to court, whether it's on DADT or DOMA. He has talked out of both sides of his mouth on LGBT issues the last two years! He'll pull some pretty line out of his pocket mentioning how repeal should take the legislative path or else there will be "enormous consequences." Throw in some bipartisanship and some ideology on top, and the Obama administration shows that they will in court, that is.

You are totally correct in this article. The democrats are the enemies of our enemies, but that doesn't make them our friends. Bill Clinton signed DOMA and DADT into law. Both Hilary Clinton and Obama said as they campaigned that they don't believe in gay marriage, yet people said "I think they really do, they're just afraid to say it for political reasons". Let's take them at their word and stop fooling ourselves. The reality is that we are a small constituency that the running democrats throw appeasments to as required to ensure our votes and then go about their business as usual after elections. Even if they don't mean us harm individually, the party can't possibly want us to get full equal rights because then we are no longer a reliable demographic of voters. The LGBT community will have no imputus to vote "D" when full equal rights have been achieved. The same holds true for some of our activist groups, HRC is a perfect example. If LGBT people had full equal rights then the HRC becomes obsolete. There goes Joe's big office and lunch dates with the president. We need to stop feeding those that thrive off of our inequality. We need to take it to the courts. There should be suits in every federal court district in as many states as possible. We need to quit playing games with our frienemies and fight like our lives depend on it.

It is time we stop messing around with bits and pieces of equality and demand unalienable unconditional constitutional equality because we are immutably Americans. We should demand it from Congress, from the President and from the courts, from state legislators and governors, from city councils and mayors. We need to stop worrying about the 14th amendment equal protection under the law, since the courts keep ruling that this was only for African American heterosexuals and does not apply to anyone but African American heterosexuals. We need to demand our rights as American citizens, not equal protection under the law, equality under the law. We need to demand our rights not because we are gay, lesbian, bisexual or transgender but because we are Americans. I predict that if we focus solely on that for the next five years, we will be equal in America.

Thanks for an outstanding article. Gays must step forward and demand our rights since in reality we can not really depend on others to do this for us.
We must try all options including the courts.

There is a part of me that also feels that if we fail in the courts, this will be viewed a legal justification for discrimination against Gays.
Over the years I have heard or know of Gays who were subjected to harassment and/or threats in their communities. The Gays have gone to court for protection and the courts ruled against them. Yes, Gays have had to sell their homes and move after the courts have not provided protection.
This has actually happened.

In closing, as a Gay man who has been out since 1972 I honestly feel Gays have to stop being nice and trusting individuals who are not our friends.

Robin Gorsline | December 11, 2010 11:03 AM

You can trust the courts if you wish, but as long as Scalia, Roberts & Co control the Supremes, I question that as our only strategy.

I would sooner be urging people with Republican Senators to pressure them right now for the stand alone bill. Go after Voinovich, Bennett, Lugar, Ensign, Murkowski. Let's get DADT done. We are actually pretty close. And that will help us get other things done in the future.

I think the courts would naturally get to this issue in one of multiple lawsuits filed or about to be filed. So the Supremes will likely weigh-in regardless. And Stay orders will be issued until the Supremes weigh in.

But we have to have that option in the arsenal of weapons. Which makes it doubly important to be sure the courts are populated with open-minded individuals. Not a small task. Again I warn about the prospect of Senate Judiciary Chairman Jeff Sessions, a near lock-certain after 2012, given the Senate control numbers and open seats.

If there's a more-hateful little weasel than Sessions out there, please point him out.

I'm also a little concerned about putting too much trust in Joe Lieberman. What a louse. But hey, if he delivers the bacon on this one, I'll change my opinion. Gladly.

I seem to recall a conversation I had on Facebook last Wednesday...on your 8am YouTube video post where you were urging people to call Senators.

I commented that the courts were the only reliable way to obtain REAL results.

You said

"Phil Reese: Look, its crunch time. The time for hem hawing is over. Its today or never. If you're not helping push the cart, get out of the damn way."

Sounds like you had an epiphany after the charade in the Senate this week.