Tuesday, July 22, 2003

Dean a states' rights hypocrite?

Dean has stated that while he strongly supports GLBT rights and civil unions, he thinks that the Federal government should not pass a civil unions law. He says that each state must come to grips with gay marriage in their own way. Yet he supports the Employment Non-Discrimination Act (ENDA) which mandates the sexual orientation not be used as a basis for discrimination in employment, which trumps any relevant state law. Is this a contradiction, as some suggest? Does Dean really believe that states should have the final say on the issue of human rights for gay people? If you believe that a human right exists, shouldn't they be recognized universally and not conditioned upon what state you live in? Is Dean playing politics and simply saying he does not support Federalizing civil unions because it is unpopular, whereas he feels free to support ENDA because it is? To answer yes to any of these questions is naive.

Dean opposes Federal civil unions as a matter of political strategy, not expediency. Dean's view is much more politically sophisticated than the desire for a logical parallel between state and federal rights. There are strategic reasons to pursue civil unions at in the states and eshew most federalization. One of the most important reasons is that, even when issues of human rights are involved, imposing legal change too quickly or in the wrong way promises a harmful backlash.

Emancipation prompted Jim Crow and Roe v. Wade helped energize a politically moribund GOP right wing. This is not to say that the rights of blacks or women should not have been recognized, but the sudden, wholesale change wrought upon society by the Federal imposition of those rights caused a harmful backlash. Undeniably, those backlashes cost generations of blacks their dignity and now threatens the very nature of our political system by the mobilization of religious fundamentalists who care nothing for the secular traditions of our government, not to mention the dignity or autonomy of women. Dean's advocacy of a state by state approach, likely to be combined with Executive Orders directing the Federal Government to recognize states' civil unions, seeks to bring about universal civil unions and an end to gender discrimination in marriage while lessening the likely cultural and political backlash.

Dean is certainly a states' rights advocate when conditions vary greatly from state to state, such as with gun control laws, but that is not the reason to pursue civil unions only in the states. The reason is to prevent opponents of GLBT family rights from being able to destroy those rights at a single blow.

Federalized civil unions would be a double-edged blade held at the throat of the GLBT community as much as a weapon against the fundamentalist opposition, just as is Roe. If marriage and civil unions are Federalized, whoever controls the Federal government controls the rights of gays and lesbians everywhere. If you keep civil unions rooted in the states, they are effectively isolated from complete control by one faction. You might lose battles, but you won't lose the war, and activists must work harder and more effectively for cultural change to sustain their political gains. It is grassroots growth of a permanent change in attitude toward GLBT family rights which Dean seeks. His experience in Vermont suggests that intensive work in the states is the only way to foster the long-term cultural change that America must undergo. Dean will use his bully-pulpit effectively in service of civil unions, but he will not ask the Congress for a civil unions law.

Legally, civil unions and marriage cannot be effectively isolated, one affects the other. Though marriage is the traditional province of the states, the Federal government does have some role in marriage. Increasingly, Federal laws and regulations impact married couples' behavior and rights. From income tax treatment to parental kidnapping, the Federal government has ever-growing influence upon marriage and married couples. Dean will ensure that what Federal law already exists recognizes and treats civil unions equally to marriage, but he will not sponsor a Federal civil unions law; not ever. If you Federalize civil unions, you will ultimately federalize marriage, and Dean believes, as do most family legal scholars, that Federalizing marriage is a poor idea. Just consider that the GOP's right wing are now proposing a Constitutional amendment freezing the definition of marriage. Federalization is a trap for the unwary, and the fondest desire of the fundamentalist reactionaries would like to stop the evolution of marital law and exclude GLBT couples from enjoying family rights.

There will also be a role for the Federal courts in working for GLBT family rights. The Federal courts will undoubtedly be used to open states to mutual recognition of civil unions and to eliminate whatever discriminatory impediments that foes of GLBT rights may erect, such as Amendments like in Roemer. There certainly are human rights and constitutional issues relevant to the struggle for GLBT family rights, but the Federal courts, being somewhat harder for the opposition to control, is the place most of those debates will occur, not Congress.

Dean's GLBT family rights policy is not hypocritical - a foolish consistency is the hobgoblin of little minds - his approach is politically sophisticated and outlines a strategic map for GLBT activists to follow. Dean wants the GLBT vote, and he genuinely believes that discrimination based on sexual orientation must be eliminated. But it won't happen tomorrow, it will be a long hard struggle. Dean will be the GLBT community's staunchest ally in that struggle. He is not looking for a quick political score, he's in it for the long haul - he's in it to win.


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