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The Value of a Little History: The Myth of a Big Federal Fix

Matt Coles,
Former Deputy Legal Director and Director of Center for Equality
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August 6, 2009

(Originally posted at Pam’s House Blend)

It’s all over the blogs, the LGBT press, at LGBT gatherings: the way to get equality for LGBT people is with one sweeping federal law. There are two main arguments: 1) history — this is the way most minorities in America got equality; and 2) political — this is quickest way to get full protection for LGBT people. The problem is that the history is dead wrong and the political prediction ignores some fundamental truths about politics in America today, and how change gets made.

As I explain in an essay in this year’s ACLU report on LGBT rights, there are eight great federal civil rights laws on race, not one. The five modern laws came not all at once, but over 15 years (you can read the whole essay here).

The movement for legal equality didn’t start at the federal level, and didn’t end there either. Twenty-four states had laws banning race discrimination on the job before the 1964 civil rights act. On some issues — like discrimination in public accommodations and housing — states have stronger laws.

Change has typically started in progressive states, and while continuing to more moderate states, moved forward in pieces at the federal level. That doesn’t mean this is the only way to do it. But the political climate in America today, the nature of the issues and our ultimate goal all tell us that a tandem state/federal strategy is the way to go.

While strong majorities of Americans support some civil rights for LGBT people, that doesn’t translate into support in Congress or the federal courts. That’s partly a reflection of conservative dominance of federal politics for 20 of the last 28 years and partly an illustration of a political truth: a motivated minority will beat an apathetic majority every time. We may have more supporters than our opponents, but they have far more who are willing to vote and give money on the issue.

Given where Congress and the federal courts are, we aren’t going to get everything we can get from Washington right away. But there is no reason to wait on the Employment Nondiscrimination Act (ENDA) until we get the Defense of Marriage Act (DOMA) repealed. On the contrary, passing ENDA and getting members on record will help us get DOMA repealed.

But even if Congress reflected majority sentiments on LGBT people, the federal government would likely not be the sole engine of change. Most of the top issues for the LGBT community — relationships, parenting, schools — are areas in which most of the law is made by states (the work described in that ACLU report gives a pretty good idea of how much of the overall effort on LGBT rights goes into those issues). That’s partly tradition, but it is also a reflection of the federal government’s limited power.

For complete equality, we are going to have to keep making change in the states as well as in Washington.

Finally, LGBT people need to think local because change in America depends on changed attitudes. While we may have majority support for nondiscrimination laws, we don’t have it for marriage, and the public’s views on gay parents are complex to say the least. Moreover, no matter how many laws or great court decisions we have, we won’t have equality until the American people become convinced that all forms of sexual orientation discrimination are just plain wrong, morally wrong.

That kind of attitude change happens most powerfully when LGBT people talk to friends, neighbors and coworkers about being gay, about what our ordinary lives are like, and about how inequality makes an ordinary life challenging. Passing local nondiscrimination laws, getting employers to recognize domestic partners, retail work for social change, these may be the best way to make those conversations happen.

Do we need a big push in D.C.? Sure. But we need to keep pushing in the states as well. Maybe most important, we need to be talking to our friends, family and neighbors, to make sure changes in the laws mean real change in people’s lives.

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