Pro-Gay Trend Endures
Hostile Bills Outpaced in State Legislatures
Washington Blade,
March 9, 2001
By Will O’Bryan
From the surface of statistics, the news coming out of the various state
legislatures this year is decidedly pro-Gay — the pro-Gay bills are
outpacing the anti-Gay bills three-to-one. The tally marks the third year in a
row that the percentage of Gay-related bill in state legislatures that is
anti-Gay has dropped. But at least one longtime Gay activist sees that good
news as simply the "response" to years of bad news.
"You’re finally seeing, at the state level, a response to attacks
that have historically been against us," said Nadine Smith, co-chair of
the Federation of State Lesbian, Gay, Bisexual and Transgender Political
Organizations. "If you don’t see many clear far-right bills being
introduced, it’s because their point of view is the status quo."
So far this year, the tally finds 116 pro-Gay bills versus 38 anti-Gay
ones. This time last year, the Blade’s annual search for introduced bills
directly relevant to the Gay community found 81 bills favorable to Gays versus
24 hostile. While 58 percent of 84 Gay-related bills in 1998 were hostile to
Gay civil rights, that percentage has been in steep decline for the past three
years even though the number of bills overall has been greater. In 1999,
anti-Gay bills made up only 36 percent of 116 Gay-related bills introduced at
the beginning of the states’ legislative sessions; in 2000, anti-Gay bills
comprised 33 percent of 105 bills, and this year 25 percent of 154 bills.
But the ratio of bills that are Gay-friendly to those that are Gay-hostile
does not, in and of itself, give reason to think the tide has necessarily
turned, said Smith.
Anti-Gay statewide political groups, she said, are well funded and are just
as likely, if not more so, to be active in local government, rather than
lobbying for bills in state legislatures.
"There are think tanks in every state, run by the far right,"
Smith said. "They’ve invested in their statewide infrastructure. ä
They have been doing a lot of work at the policy level, on school boards and
city councils. ä Financially, the far-right infrastructure has been in place
and building for a long time. They’ve had in place what many in our
community are just waking up to."
Of the 154 bills the Blade has identified so far this season, the bulk fall
into four categories: anti-discrimination, hate crimes, partners, and sodomy.
Of the pro-Gay bills, the greatest number — 46 — falls into the
anti-discrimination category. Within this category are comprehensive statewide
anti-discrimination bills that seek to prohibit bias on the basis of sexual
orientation in employment, housing, and public accommodation, on one end of
the spectrum, and bills that are far more specific on the other end. In
Maryland, for example, one anti-discrimination bill specifically targets
policy at a certain regional sanitation department.
Legislators attacking equal rights for Gays have introduced only two bills
aimed at making it easier to discriminate against Gays. Both of these bills
— one in Virginia, the other in Missouri — are so-called "religious
freedom" bills that seek to excuse religious institutions from obeying
anti-discrimination laws that protect Gays.
Of introduced hate crimes legislation, 32 bills propose laws that would
benefit Gays in some measure, while the opposition has offered no bills in
this arena. Again, the scope of the proposed legislation is vast.
One of the highest-profile proposals is the James Byrd Jr. Hate Crimes Act
in Texas, named for an African American man who was dragged to his death in a
racially motivated assault in 1998. The Byrd family has endorsed the inclusion
of sexual orientation as a protected category in legislation even though the
inclusion has hindered past attempts to pass the bill. As governor of Texas,
President Bush opposed the legislation. The Lesbian/Gay Rights Lobby of Texas
has organized a march in Austin to support the act, scheduled for March 18.
Other hate crimes bills across the country seek to increase penalties for
hate-motivated crimes, allow victims to sue their attackers, and add
"sexual orientation" to existing hate crimes laws. In Utah, both
House and Senate versions of a hate crimes bill that would define a hate crime
as "motivated by bias against a group" died. The House did, however,
pass a bill to increase penalties for attacking ranchers. That bill is now in
committee in the Senate.
Laws prohibiting sodomy may be an endangered species, but where they exist,
they still have teeth. In Arizona, Texas, and Virginia, legislative attacks
were launched to repeal the measures, but in Virginia, the effort has already
failed. Legislators in Virginia introduced two bills to strike at the state’s
Crimes Against Nature law, which makes a felony of any act of oral or anal sex
in the state, public or private. One bill would have abolished the law while
offering stricter prohibitions against public sex. The other would have made
sodomy a misdemeanor. Both bills died, despite a recent poll by Virginians for
Justice, a statewide Gay-advocacy group, that shows 65.2 percent of Virginians
support repeal.
Three "repeal of archaic laws" bills are pending in Arizona.
Kathie Gummere, interim executive director of the Arizona Human Rights Fund, a
leading opponent of the state’s sodomy law, said she is confident that there
are enough votes on the floor of both the Arizona House and Senate to repeal
the sodomy law, if only legislation can get through committee.
In Texas, a bill to repeal that state’s sodomy law, which applies only to
sodomy between members of the same sex, has been sitting in committee since
Feb. 1.
While legislators seeking to work for parity for Gays in their states
struck hardest with anti-discrimination and hate crimes bills, the return fire
has been aimed squarely at same-sex couples. In that category of legislation
alone, the bills against equality for Gays outnumber those in favor, 26-18.
Not surprisingly, the state with the greatest number of bills attacking Gay
couples is the one where same-sex couples made their greatest gain last year:
Vermont. In 2000, legislators there obeyed an order from the Vermont Supreme
Court to provide same-sex couples with the same state-level rights and
benefits enjoyed by traditionally married couples. The legislators created a
new institution called "civil unions."
While the unions fall short of marriage in that the "unionized"
still don’t enjoy any of the federal rights of marriage, civil unions come
closer to same-sex marriage than any other law in the United States. And last
November, Republicans won a majority of the state House, giving opponents of
equality for Gay couples some clout they did not have when the legislation was
passed last year.
According to the Blade’s tally, legislators in Vermont have introduced
nine bills directly related to Gay issues. Of those, eight deal with same-sex
couples — and they are all hostile. The Marriage Restoration Act is the most
heavy-handed, designed simply to repeal the civil union law. Two other bills
seek to do the same. Although civil unions provide no legal benefit to
out-of-state couples who journey to Vermont to enter a civil union, one bill
proposes to limit the availability of civil unions to Vermont residents alone
and it would make null and void any civil union license already obtained by
out-of-state residents.
As Vermont becomes synonymous with civil unions — to supporters and
opponents alike — the new law has influenced proposed legislation far beyond
the Green Mountain State’s borders. In years past, state legislators on the
right concerned themselves with prohibiting same-sex marriage. Now the push is
to ensure that civil unions will not be recognized.
While several states are still looking at garden-variety bills to prohibit
same-sex marriage, New Hampshire, Oklahoma, Texas, and Washington, as well as
Vermont, have seen bills this season specifically aimed at invalidating civil
unions. Conversely, legislators in California, Hawaii, Rhode Island, and
Washington have introduced bills to seek to establish civil union recognition.
Julie Holler, the Texas Gay and Lesbian Rights Lobby’s field coordinator,
said her group’s priority this year is fighting the Texas effort to pass a
so-called "Defense of Marriage Act," which would prohibit Texas from
recognizing same-sex marriages.
"We’re just trying to ward off Texas DOMA. We’re focusing on
things we can actually win," said Holler. She added that, during this
session, any push to bring civil unions to Texas "wouldn’t stand a
chance in hell."
Bills attacking Gay couples have also been offered in Arizona, Colorado,
Maine, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, New
Mexico, New York, Oklahoma, Texas, Utah, Washington, and Wyoming. The bills
against civil unions and same-sex marriage are the most obvious bills
attacking couples. Some bills are subtler.
In Maine, one bill would prevent insurance providers from discriminating
against domestic partners. The protection, however, would be granted only to
opposite-sex domestic partners. A New Hampshire legislator has offered a bill
to allow for first-cousin marriages while at the same time prohibiting
marriage between members of the same sex.
Vermont’s civil union law is not the only inspiration for Gay-related
legislation this year. Several legislators have taken a sort of
passive-aggressive approach to attacking Gays by offering bills to mandate
support for the Boy Scouts of America. Bills offered in Arizona, Connecticut,
and Georgia are designed to prevent these states or the localities therein
from withholding benefits such as use of space from the BSA in light of the
Scouts’ Supreme Court victory last year that allows them to discriminate
against Gays.
Other anti-Gay bills that fall outside of the four main categories include
efforts in Arkansas and Indiana to prevent Gays from adopting or serving as
foster parents. The Arkansas bill has already died. A bill to prohibit sexual
orientation discrimination in adopting in Arkansas, however, is still alive
and sitting in committee.
Bills outside the main categories seen as friendly to Gays include a bill
in Tennessee that seeks to prohibit anyone who belongs to a hate group from
becoming a police officer, and a measure in Rhode Island to aid those affected
by the Holocaust, including Gays.
Legislators in California, Rhode Island, and Texas have introduced bills to
help transgender citizens specifically. In California and Texas, bills seek to
make it easier for transgender people to amend their drivers’ licenses to
reflect a new gender. Another California bill seeks to prohibit employers from
firing someone who dresses in a fashion that reflects a new gender. The Rhode
Island bill is a gender identity anti-discrimination bill.
But the path from bill to law is not an easy one for pro-Gay legislation.
In Virginia, of the eight Gay-friendly bills introduced, all have been
"passed by, indefinitely." In a word, they are dead.
Regardless of outcome, however, the trend does indicate that the November
2000 election season did nothing to take the wind out of the political machine
fighting for Gay civil rights.
Clear control, by either the right or left, is hard to come by. Democrats
control both legislative houses in 15 states. Republicans control both houses
in 17 states. Even that simple delineation carries less and less relevance as
the nation evolves politically.
"We do have a lot of good Republicans," offered Gummere of the
Arizona Human Rights Fund, a statewide Gay-advocacy group. Arizona is home to
two of the country’s highest-profile Gay Republicans, state Rep. Steve May
and U.S. Rep. Jim Kolbe. "A lot of our Republicans are actually more
libertarian; they don’t want government in people’s lives. We also have
some strongly religious [legislators] who are very opposed to any rights for
Gays and Lesbians, and they’re not all Republicans. We have some very
conservative Democrats and some very libertarian Republicans."
California provides a more conventional partisan portrait. That state now
has four Lesbian state legislators, including its first state senator, Sheila
Kuehl. All four are Democrats.
"I don’t want to say there are no Republicans who support us ä but
it’s a very different environment right now. It’s more proactive,"
observed Eric Astacaan, legislative advocate for the California Alliance for
Pride and Equality. "It helps to have four members of the state
legislature who are Lesbians. How could members of the legislature attack Gay
and Lesbian people when in their house they have members who are
Lesbian?"
Florida’s Smith concluded, "If you look at the scope of state
government control, from adoption and custody, to the public education system,
to the ability to extend domestic partner benefits, so many things that affect
the quality of day-to-day life get decided at the state level. Even those
things we hope to pass at the federal level will be enforced at the state
level. There is a great deal of work that has to be done at the local and
state level."
- Kara Fox, Brian Moylan, Bill Roundy, and Rhonda Smith contributed to
this report.
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