An Ever-shifting Landscape

So far this year, 11 state legislatures are considering bills to ban legal recognition of same-sex marriage, and Washington state just last week became the first state this year to enact a law specifically banning marriage licenses for same-sex couples. At this time last year, 21 statehouses were considering same-sex marriage bans. But if marriage seems less of an issue in the legislatures this year, it’s only because 25 states passed similar anti-Gay laws in the previous three years. During the 1997 legislative session, 31 states considered bills to ban recognition of same-sex marriages, and nine states enacted them. Between 1995 and 1996, 37 states considered anti-Gay marriage bills, and 16 enacted them — one in 1995 and 15 in 1996.

The success of the Washington law further illustrates the tenacity of anti-Gay forces. After stumbling near the finish line last year, the bill cleared the legislative course this year at lightning speed. Defining marriage as the union between one man and one woman, the law bans legal recognition of same-sex marriages performed in other states. On Feb. 4, the House approved the bill by a 56 to 41 vote and, two days later, the Senate passed it by a 34 to 13 vote. That same day, Democratic Gov. Gary Locke vetoed the bill, but the Republican-controlled legislature voted to override the veto. (Locke vetoed a similar bill last year, but its proponents were unable to gather enough votes to override the veto and vowed they would fight the measure’s passage this year.)

"It’s disappointing, and we’re outraged that the legislature would enact this hateful piece of legislation," said Richard Kirton, board president of Equality Washington/Hands Off Washington, a group advocating for Gay civil rights. Kirton said his organization plans to launch a court challenge of this legislation

In Vermont, Rep. Nancy Sheltra (R) introduced anti-Gay marriage legislation very similar to the Washington law. Sheltra’s bill has been assigned to the House Judiciary Committee, where activists say it doesn’t have much of a chance.

"They conducted a nonbinding straw poll of the committee members that indicated no one would support it," said Keith Goslant, liaison to the governor from the Vermont Coalition for Lesbian and Gay Rights.

Goslant said a Vermont court challenge to allow Gay marriages is eclipsing the attention focused on the bill in the legislature. Filed by Gay activists last July in Burlington, the lawsuit charges that clerks in three towns violated state law and the state constitution by refusing to issue marriage licenses to three same-sex couples. A Chittenden Superior Court judge ruled against the plaintiffs in November, and the case is now before the Vermont Supreme Court, which is expected to rule on the case sometime this year.

Of the remaining eight states considering anti-Gay marriage bills this year, only one has passed a floor vote in one chamber or the other. In Wisconsin, where the legislature runs in two-year cycles, a Republican-sponsored anti-Gay marriage bill passed the House in May 1997 and has been in the Senate Judiciary Committee since then. Activists are waging battle to keep it from being sent to the Senate floor, but they concede they are worried because the Wisconsin Senate is split 16 to 16 between Republicans and Democrats, with one vacant seat.

"Things are very unstable in terms of who’s in control or what will happen with that bill, so we’re being extremely vigilant," said openly Lesbian Rep. Tammy Baldwin (D).

An anti-Gay marriage bill in New Mexico passed one Senate committee on Feb. 4 and has been sent to another. If the bill passes the full legislature, it will go on the November ballot as an amendment to the state constitution. Since this is a constitutional amendment bill, it does not require the governor’s signature in order to go to the ballot.

Nebraska’s anti-Gay marriage bill passed the Judiciary Committee in February 1997. Because the Nebraska Legislature, which is made up of only one chamber instead of a separate House and Senate like other states, runs in two-year cycles, the bill now just needs a full Legislature floor vote. There are also anti-Gay marriage bills awaiting action in Kentucky, West Virginia, Alabama, Maryland, New Jersey, and Colorado. In each of these states, and anti-Gay marriage bill has been introduced and failed in previous years.

Unlike last year, there are no pro-Gay marriage bills in any state legislatures thus far this year. Gay activists seem to be concentrating instead on broader issues where, they hope, the battles may be less controversial and thus more quickly won.

Fighting for protections

(by Douglas C. Wright)

Gay civil rights protections, for instance, remain a vastly untapped area that can affect most if not all Gay people, and Gay activists are becoming more confident in asking for and more focused on winning such laws. As of this week, only 10 of the 50 states offer any sort of civil rights protections for Gays, and only eight of those offer broad-based protections including the areas of employment, housing, and public accommodations. But eight states have statewide Gay civil rights bills before their legislatures. At this time last year, there were 12.

In one state, the drive for Gay civil rights protection has already faltered for 1998. Colorado Gay activists were disappointed Feb. 3 when a bill that sought to add sexual orientation to the list of categories of discrimination prohibited by state civil rights statutes died in a House committee by a 9 to 3 vote. Similar bills in New York, Nebraska, Arizona, West Virginia, and Iowa have not yet been voted on. Bills in two other states, however, are sure to be the subject of much attention from Gay activists and those opposing equal rights for Gay people.

In Maryland last year, the Gay civil rights bill came the closest it has in six years to being passed out of committee and on to the full House floor. In a surprising turn of events, it failed by one vote after bill cosponsor and Gay supporter Del. Dana Dembrow (D) voted against an amendment critical to its passage out of committee.

But this year, the bill has caused a bit of turmoil of a different kind within the Maryland statewide Gay civil rights organization the Free State Justice Campaign. After the bill was drafted and pre-filed with the legislature, Free State leaders decided they wanted it to contain language that would give protection to transgender people as well. As originally drafted, the bill sought to prohibit discrimination based on sexual orientation in the areas of employment, housing, and public accommodations, but did not define sexual orientation in such a way so as to include transgender persons. Free State sought the change after the deadline for changing the bill had passed, however, and the group failed to convince the bill’s sponsor, Del. Sheila Hixson (D), to amend it. The failure prompted Free State Legislative Co-chair Jessica Xavier, a nationally known transgender activist, to resign from the group.

Although Xavier said she thinks the leadership of Free State is committed to trangender inclusion, she said she thinks they are unwilling to pay the political price of such inclusion in the Gay civil rights bill.

"I think everyone wants to go to inclusivity heaven, but nobody wants to politically die," Xavier said. "And I think the road to hell is paved with good intentions and bad bills."

Other Free State officers say the group is still committed to having laws protect against discrimination aimed at transgender people.

"Free State has a very strong commitment for securing civil rights for all of our community, including transgender people," said Free State Chair Liz Seaton. "But the board’s strategy is one of working for the long term inclusion of Gays, Lesbians, bisexuals, and transgender people, to gain protection for all of the members of our community," she said. "Free State is prepared to take significant political risks" for transgender inclusion, Seaton said, "but that doesn’t necessarily mean that we’re ready to throw caution to the wind."

In Illinois, which is in the second year of a two-year legislative session, the Gay civil rights bill currently in the House Rules Committee has already been voted on. It failed on the House floor last April when it came up eight votes shy of the 60 it needed to pass. Gay activists are still fuming over that vote because eight Democrats who were expected to vote for the civil rights bill did not. According to Rick Garcia, director of the Illinois Federation for Human Rights, elections are coming up this fall and the Illinois group has found some Republicans who said they will vote for a Gay civil rights bill and will challenge those eight Democrats for office.

"I say being screwed by a Democrat is no different than being screwed by a Republican," Garcia said, explaining what he tells people who warn his group against helping the Republicans capture the House this fall. "We’re going to play footsie with the Republicans. The Democrats have promised us community for too long."

Garcia said his group has introduced the civil rights bill every year since 1993 and will continue to do so until it passes.

Making bias a crime

(by Douglas C. Wright)

In a society where social problems are ever and increasingly dealt with at the level of the penal system, it is perhaps no surprise that the largest number of Gay-related bills have to do with increasing criminal penalties for hate crimes motivated by the victim’s sexual orientation. So far, nine state legislatures are considering at least 23 of these bills — the most of any type of Gay-related bill this year.

A bill to add sexual orientation to the hate crimes statute in Colorado has had some early success this year. On Feb. 5, it passed the House Judiciary Committee by a 9 to 3 vote. However, this victory may be short-lived since the bill has now been sent on to the House Appropriations Committee, where it died last year after being postponed indefinitely.

In Virginia, both the Senate and the House are considering legislation to add sexual orientation to the advanced penalties for hate crimes law. This is the fourth year this legislation has been introduced in Virginia. All three bills this year (two in the House, one in the Senate) have bipartisan cosponsors, but Gay activists say the Christian right has targeted the bills for defeat.

"Which obviously tells us that we’re making much headway on them," said David Perry, a lobbyist for Virginians for Justice.

Virginia activists were recently dealt a setback, however. On Feb. 3, the subcommittee on criminal law and procedure tied 3 to 3 on a vote to pass the hate crimes bill onto the full Courts of Justice Committee. Subcommittee Chair Joseph Gartlan (D) then threw in his vote to break the tie and pass the bill on to the full committee, which he also chairs. The following day, the full committee voted 9 to 5 to postpone the bill, meaning that they may or may not decide to pick it up again this session.

VJ head Shirley Lesser said she is still hopeful, since the House is also considering similar bills that have certain significant differences from the bill killed in the Senate. She said the biggest difference is that the House version does not include gender (the current law provides for stiffer penalties for crimes motivated by race, religion, and ethnicity). And gender, said Lesser, has turned out to "much more controversial" than sexual orientation.

"Which is sort of an interesting take on all of this," Lesser said, "so it’s not a foregone conclusion" that if this bill passes the House it will then be killed by the same Senate committee that killed the Senate bill.

The other states considering bills to designate increased penalties for hate crimes motivated by a victim’s sexual orientation are: Ohio, Michigan, Indiana, Pennsylvania, West Virginia, Rhode Island, and New York.

Repealing sex as crime

(by Douglas C. Wright)

Crime is also an issue for Gay activists in another way. Twenty states still have laws on the books that make it a crime for a person to engage in sex with a person of the same gender and/or to engage in certain forms of sex other than heterosexual intercourse. Six of those states criminalize sex between same-sex couples but not heterosexual couples: Arkansas, Oklahoma, Texas, Kansas, Missouri, and Maryland. This year, sodomy reform bills are sitting in four statehouses: Minnesota, Georgia, Virginia, and Massachusetts. None has yet seen any action. The bills are not always introduced out of concern for the equal rights of Gay couples, however. For instance, a bill to repeal the sodomy statute in Georgia is sponsored by State Sen. Steve Langford, who, activists say, is registered as a Democrat but has strong Libertarian leanings.

"It’s coming from his desire to have less government legislation in people’s bedrooms, an although it benefits us as Gay people, it’s a different motivation," said Cindy Abel, executive director of the Georgia Equality Project. "It’s not necessarily because this guy is Gay-friendly."

Similarly, Minnesota’s sodomy reform bill, introduced in 1997 (the Minnesota legislature has two-year sessions), comes as part of a larger bill from the Senate Crime Prevention Committee to update the state criminal. It was unsolicited by Gay activists. According to Ken Backhus, Senate Counsel to the Crime Prevention Committee, the bill also seeks to strike other statutes that are of "questionable constitutional merit," such as adultery and flag burning laws.

The Massachusetts sodomy reform bill has been inactive since September 1997 (Massachusetts also has two-year legislative sessions) and is likely dead. While Gay activists are mobilizing to redraft the bill, they are divided over whether or not the redraft should include language dealing with people arrested for engaging in sex in public places.

Some activists said they feel this would be too big of a political risk.

"Connecting the issue with public sex would essentially kill our ability to repeal the sodomy laws," said Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus.

Meanwhile, national pro-Gay organizations such as the American Civil Liberties Union and the Lambda Legal Defense and Education Fund have been side-stepping the legislatures and mounting challenges to state sodomy laws on the judiciary front. Court battles for sodomy repeal are currently being waged in Maryland, Kansas, Louisiana, Arkansas, and Puerto Rico.

Focus is on the family

In all, the annual Blade survey found 76 Gay-related bills in 27 state legislatures at the top of 1998 -- 42 are pro-Gay in nature; 33 are anti-Gay in nature. (This compares to the first week of February 1997, when 88 Gay-related bills had been introduced in 27 state legislatures; 40 were pro-Gay and 48 were anti-Gay.) In addition to bills concerning hate crimes, sodomy, civil rights, and marriage, there are bills dealing with a wide range of issues, from domestic partner benefits to obscenity to adoption. According to Betsy Gressler, deputy political director of NGLTF, the conservative right has begun to reach its saturation point in terms of having deluged as many states as it can with anti-Gay marriage legislation, and is now redirecting the focus of its attack. The focus now, she said, is on "family issues," including domestic partnership, adoption, foster care, child custody, and schools.

While Massachusetts considers legislation to offer health insurance benefits to the domestic partners of state employees, Georgia, Washington, and Michigan are considering bills to ban local and state governments, and in some cases even private companies, from offering such benefits. In California, legislators are considering both pro- and anti-Gay domestic partnership bills.

Georgia is also considering an anti-Gay adoption bill that would prohibit unmarried partners from jointly adopting children. Meanwhile, the biennial Tennessee legislature is considering a bill, introduced last year, that would prohibit Gays from serving as foster parents. A Kentucky bill would amend domestic violence laws to exclude protections for Gay men and Lesbians. Gay activists are also watching anti-obscenity bills in Oklahoma and parental rights in education bills in Colorado and in Washington, since these types of laws are often directed against Gays.

Twelve states are considering more than 70 HIV/AIDS-related bills, with nearly 50 bills reported in New York alone. At least five bills seek to require medical personnel to report the names of people infected with HIV to state health officials; at least nine seek to criminalize HIV transmission; two bills seek to establish needle exchange programs; and several others deal with funding for AIDS education and services programs.

Nicholas Boggs, Rhonda Smith, Kai Wright, and Christine Dinsmore contributed to this report.

Copyright © 1998 The Washington Blade Inc.  A member of the gay.net community.