Editor’s note: As the formal changing of the guard takes place in Congress, ushering in a new year of expected difficulty in getting pro-LGBT equality legislation passed, Tom Carpenter, an attorney and former board co-chair for the Servicemembers Legal Defense Network, calls for a full “debriefing” of what happened with the repeal of Don’t Ask, Don’t Tell to assess accountability and glean markers for the way forward. I urge you to read this essay from a former Marine Captain who knows about leadership and achieving goals. – Karen Ocamb
The Path Ahead: We Need a Roadmap
By Tom Carpenter
On December 21, 2010, at the Congressional endorsement ceremony the day before President Obama signed the bill that repealed the Don’t Ask, Don’t Tell law, openly gay Rep. Barney Frank made a profoundly simple statement about the so-called “gay agenda.” He told us how some people criticized him for advocating for this “agenda” but that he was proud to fight so that gay, lesbian, bisexual and transgender (LGBT) citizens would not be assaulted or murdered because of who we are; that we would be able to serve our country, not lose our jobs because of our sexual orientation and be able to marry the person we loved.
Of that “gay agenda,” the LGBT community has won Hate Crimes and repealed Don’t Ask Don’t Tell. Two down, two to go! Now it’s time to talk about priorities and strategize how we can best achieve the rest of our agenda for full equality.
About 5-6 years ago, as co-chair of the Servicemembers Legal Defense Network (SLDN) board, I participated in a conference at the Human Rights Campaign (HRC) offices in Washington, DC, with leaders in the fight for repeal of the “Don’t Ask, Don’t Tell” (DADT) law. During one of the breaks, I talked with my good friend Aaron Belkin, Executive Director of the Palm Center, about the priorities that were being pushed by the HRC participants. In order, they were: 1) Hate Crimes; 2) Employment Non Discrimination Act (ENDA); 3) repeal of DADT; and a distant 4) repeal of the Defense of Marriage Act (DOMA).
At the time, passage of a Hate Crimes bill made sense because it was considered “low-hanging fruit” – that is, more winnable than other issues. The injustice done to people of color and LGBT Americans had been personalized by the murders of James Byrd, Jr., and Matthew Shepard. Matthew’s mother, Judy, was an eloquent and powerful spokeswoman for the Hate Crimes bill. Thanks to those mothers and a coalition of people who have long battled against hatred, the Hate Crimes bill became the first piece of LGBT legislation ever passed by any Congress as an amendment to the National Defense Authorization Act.
As an advocate for repeal of DADT, I was concerned that ENDA seemed to have been assigned top priority. Employment discrimination at least had a state remedy because the citizens of each state have the power, through their elected state representatives, to change the law to provide some fairness there. As a matter of fact, upwards of 30 states had already done so. DADT, on the other hand, was federally mandated discrimination that could only be repealed by the Congress that created the bankrupt law. The only other recourse was to have DADT overturned by a US Supreme Court that was becoming increasingly conservative. I argued during the discussion at HRC that – despite my desire to keep repeal of DADT as the lead issue – we needed to remain flexible in any approach because we had no control over which issue would move ahead in the mind of the American people or become politically achievable.
Now, halfway to our achieving those four goals – as painful as it is and as much as I want equality NOW – I am forced to argue for an incremental approach towards securing full equality for the LGBT community.
Experience shows that incrementalism is the realistic path to success. Look to the women’s movement for guidance. Suffrage started in earnest in 1848 and until the 19th Amendment was ratified in 1920, women did not have the right to vote. From there, it was a slow uphill battle for women to enter the professions and nontraditional jobs, despite the success of “Rosie-the-Riveter” during World War II. Not until 1976 were women permitted to enter the military service academies. Today our volunteer force could not function without female service members. The Equal Rights Amendment, which was first proposed in 1923 and passed out of Congress in 1972, has only been ratified by 35 of the necessary 38 states. Today, no one is even talking about the ERA – so, after 38 years, there is still no law declaring that women have the same rights as men.
In our community’s fight for equality, we have caused many unintended negative consequences, in part because of our understandable desire to move quickly. DADT is a prime example. In 1993, we thought President Clinton could simply issue an executive order to lift the ban against open service, similar to the executive order issued by President Truman in 1948 to bring about racial integration of the military. That was a serious miscalculation. We did not understand the political reality of the day: not everyone thought it was the “right thing to do” and neither the military nor the country was ready for the change. Disregarding cardinal rules of the Art of War, we had not prepared the battlefield. Instead of lifting the regulatory ban, the “compromise” known as DADT became the law of the land. It took 17 years of education, lobbying, litigation, hard work and the dismissal of almost 14,000 patriots to accomplish that congressional vote for repeal.
In my opinion, it was the personal stories of those who were directly impacted by the law that were critical in turning the tide. Sadly, as in the case of Hate Crimes, we moved forward in part due to the tragic murders of American patriots –PO3 Allen Schindler and PFC Barry Winchell. The public pain of their mothers, Dorothy Hajdys and Pat Kutteles, moved the country, as did the personal stories of those patriots discharged simply because of whom they loved.
SLDN and our coalition partners planned strategically and deployed with agility as circumstances demanded to create and take advantage of a confluence of factors that finally made repeal possible. These factors included a shift in public opinion through a concerted information and education program which led to over 70% of our fellow citizens being in favor of repeal; a President who had pledged to repeal the law; a military which, because they were able to manage the process, bought into the full repeal process; Congressmembers willing to expend political capital; a direct-action component that kept up pressure on the President and Congress; Courts which applied new law and judicial standards to find the law unconstitutional on its face and as applied; and a community that united around the issue and coalesced with straight allies to mobilize a strong grassroots effort. Some of these factors we were unable to control, others were matters of planning, timing and taking advantage of circumstances.
While we can celebrate the beginning of the end of discrimination in the military, this DADT fight is far from over. There still needs to be certification by the President, the Secretary of Defense and Chairman of the Joint Chiefs of Staff. The DOD must change numerous regulations and create, as well as execute, an implementation plan. The issues of marriage and most dependent benefits have been left for another time. There is no discrimination protection of LGBT service members under the Military Equal Opportunity program.
In fact, unfortunately, the final repeal legislation is a skeleton of the Military Readiness Enhancement Act (MREA), the bill that had been advanced by leaders of repeal of DADT. The repeal statute was stripped of any nondiscrimination provisions and therefore will require the President to issue an executive order in order to provide for real equality.
But does anyone think that no bread is better than this half loaf? And what about the protection of transgender members of the military? Much work is still to be done.
It is imperative that we understand the practical importance of this repeal statute, as well as its symbolic significance. The bill repealing DADT is the first piece of LGBT legislation not attached to another high-priority bill such as the National Defense Authorization Act (NDAA). The strategy of attaching repeal of DADT to the NDAA seemed like the most likely legislative vehicle to accomplish repeal. However, Republicans, for the first time in 48 years, closed ranks and were joined by one Democrat in the Senate to filibuster this must-pass piece of legislation, not once, but twice. That forced the Democratic leaders to introduce a stand-alone bill, a privileged piece of legislation that could not be amended but still required a cloture vote in the Senate. This up-or-down vote passed by overwhelming majorities in both bodies of Congress.
For the first time in history, an LGBT bill passed as a stand-alone piece of legislation.
How did repeal of DADT pass? First, like the Hate Crimes bill, there was a human face put to the terrible price of DADT. The faces of repeal of DADT were: Mike Almy, Alistair Gamble, Blue Copas, Darren Manzella, Monica Hill, Stacey Velasquez, Victor Ferhenbach, Joseph Rocha, Dan Choi, Alex Nicholson, Jonathan Hopkins, Katy Miller, Jules Sohn, Justin Elzie, Grette Cammermeyer, Joe Steffen, Tracy Thorn, Keith Mienhold, Rich Richardson, Rich Watson, Margaret Witt, Steve May, Zoe Dunning, Eric Alva, Jenny Kopfstein, Anthony Loverde, Stephen Vosslerand many others.
Where are the faces for ENDA? ENDA – a jobs bill – has languished because there has not been a sufficient education of the public and Congress about how terrible the lack of non-discrimination in employment is to our community.
The case for ENDA has not yet been personalized. We have no poster person. Other than GetEQUAL disrupting a congressional hearing – where is the direct action to publicize the harms of LGBT job discrimination? Where is the press? Where are the educational grassroots efforts such as the DADT repeal “Call to Duty?”
ENDA has been a long, hard fight, falling one vote short of passage during the Clinton Administration, with the help of a coalition of civil rights leaders including Coretta Scott King and Dr. Dorothy Height. Adding our transgender brothers and sisters to the bill, who are the most stigmatized in our community and needing protection the most, has made passage even more difficult. But it is absolutely the right thing to have a Trans-inclusive ENDA bill. ENDA will require more education of the public and members of Congress.
However, we have a ready-made baseline and jumping off point with the repeal of DADT. Most of our fellow citizens agree that “separate but equal” is not the American way. It is simply unfair. So the question is: how can we outlaw discrimination against gays and lesbians in the country’s largest employer – the Department of Defense – and still permit discrimination to exist in the private sector? We need to prepare the battlefield for passage of ENDA. But the necessary infrastructure is not yet in place. We need leadership and a strategic plan. Right now, neither present nor accounted for.
The second “separate but equal” situation regards gay and lesbian service members who have same-gender marriages. Because of DOMA, the military will have two classes of married service members. Legally married gay and lesbian couples will be denied many service-connected benefits such as base housing, extra subsistence pay, the possibility for two members in the same service to be stationed together, PX and Commissary privileges, dependents’ schooling and health care – the list goes on. This two-class structure for our troops is a ticking time bomb. Military commanders have told me that, from a leadership perspective, this situation is unacceptable and must be dealt with quickly. It is ironic that those who were so resistant to repeal of DADT may become our strongest allies in moving to repeal DOMA.
The denial of the benefits of marriage on a Federal level is today causing irreparable harm to those in our community who are married or are in some other form of state-recognized, committed relationship. Just consider the following, to name just a few rights denied gay spouses. We cannot: obtain the Social Security benefits of our spouse if he/she dies; gain citizenship for our foreign-born spouses; take advantage of joint income tax benefits; take sick leave to care for our spouses; assume our spouse’s pension plans; and, while President Obama has authorized hospital visitation rights, we have no way of enforcing that regionally when it is most needed. The repeal of DADT makes this dichotomy even starker for our service members. Clearly, DOMA stands in the way of full and successful implementation of the repeal of DADT.
Unlike DADT, which mandated discrimination, marriage equality opponents point out that many states have some form of same-sex relationship recognition, such as domestic partnership or civil unions, and that same-sex couples have all the same rights, benefits and responsibilities of marriage, just not the name. We all know this is a classic case of “separate but equal,” including President Obama, a constitutional scholar who says he is “evolving” on marriage equality but still carves out a religious exemption. But we also know that it creates second-class soldiers, sailors, airmen, Marines and coastguardsmen, which is NOT the intent of Congress or the President in repealing DADT.
The solution many military commanders and LGBT community leaders want is the repeal of DOMA to truly level the playing field, not just for service members, but for all citizens. It is important to remember the history and context of DOMA because then we can create a smart new strategy for its demise.
DOMA was created as an election-year wedge issue and hurriedly enacted under a Democratic President and Democratic Congress. DOMA denies us any of the over 1,100 federal benefits that heterosexual married couples enjoy. The actual reasons for marriage have been articulated with passion and precision in the ongoing litigation surrounding the antigay marriage Proposition 8 case now pending in the 9th Circuit Court of Appeals in California. (Prop 8 was declared unconstitutional in federal District Court last year.) Yet, despite its roots in property and inheritance transfer and gender inequality, “marriage” has become a divisive emotional social touchstone and election slogan that – cynically – is the very antithesis of love, acceptance and inclusion. Following the lead of the federal government in passing DOMA, more than 30 states now have enshrined in their state constitutions or statutes a definition of marriage as one man and one woman.
The new question following naturally on the heels of repeal of DADT is: How do we coordinate the state level attacks on marriage with a smart effort to repeal DOMA? From a comprehensive point of view, there is talk of an omnibus bill or inclusion of LGBT issues (like the repeal of DOMA) and relationships in the Civil Rights Act. No one could deny that this would be the most direct path to the equality promised in the Declaration of Independence and the US Constitution. But can it be done? The112th Congress is being sworn in today. Look at its change in composition from the last Congress that gave us these two major victories. An HRC analysis shows a pick-up of 53 House seats to anti-LGBT lawmakers as well as a 5-seat addition in the Senate. Not only do those opposing basic equality hold positions of power as House leaders and committee chairmen, their ranks have swollen to 225 – a solid majority of the House. This presents not just a roadblock to progress but also the threat of legislation that could possibly reverse these long fought for victories of last year.
But the LGBT community appears to be divided on how to proceed. Some in our community are critical of the marriage equality movement because they believe the leadership has surrendered the moral high ground of full equality for the practical reality of what is achievable.
Meanwhile, the intensity of that division may be crippling our ability to secure allies and move forward. For instance, members of the Pentagon Comprehensive Review Working Group(CRWG) described the leadership of our LGBT community non-profits as similar to Afghan warlords: each group operating independently, jockeying for power and wanting to take credit for every victory. If we are to achieve our goal of “E Pluribus Unum” – Out of Many, One –we must immediately make an honest evaluation of our movement and prepare strategies and tactics on multiple fronts that will move us forward. This means really communicating, sharing ideas and resources, some compromise, much analysis, and a very smart strategy with even smarter tactics.
So how do we do this?
Over the years leading to repeal, I participated in a monthly coalition conference call known as the Freedom to Serve Roundtable. The number of participants grew as we came out of the wilderness of the Bush years. From my recollection, the organizations that met to discuss repeal and strategize were: American Civil Liberties Union, American Veterans for Equal Rights(AVER), Center for American Progress(CAP), Forum on the Military Chaplaincy, Gay Signal, HRC, Knights Out, Log Cabin Republicans, Palm Center, People for the American Way, PFLAG, SLDN, Servicemembers United(SU), Stonewall Democrats and USNA Out. Each of these organizations played an important role in the undertaking leading to repeal. There were also other organizations that did not participate in this conference call such as the Courage Campaign, GetEqual, the Military Outreach Committee, Outserve, and Soul Force, all of which clearly had an impact on bringing about repeal of DADT.
What is unknown is which organizations did what and to what effect. From the military perspective of preparing the battlefield for the next fight, we need to know this.
By training, I am a Naval Aviator and in Naval Aviation, we plan and brief every flight. After the mission is complete we conduct a debriefing. This is a necessary process if the pilots are to learn what went right, what went wrong, and what lessons can be learned to make our future performance better. In carrier operations, this self-critique is taken a step further, where every landing on the aircraft carrier is graded by the landing signal officer and announced in the ready room. This can be a painful experience, especially when you are having a bad day.
We have just experienced a “very good day” in the words of President Obama. What our community needs now is a debriefing of the successful repeal movement. In order to learn from this experience and advance the rest of our agenda, we will have to face the good, the bad and the ugly.
To yield a comprehensive, useful debriefing from the successful DADT fight, I recommend a third party with no major involvement in repeal of DADT conduct a thorough evaluation. In addition to historical fact-gathering, the third party must also conduct gap analysis and effectiveness review. Academic organizations such as the Williams Institute at UCLA or the Harvard Kennedy School would be great third parties for this important endeavor.
The debriefing should start by focusing on the first two years of the Obama administration. It should identify the contribution of (at minimum) the key groups, CAP,HRC, Palm, SLDN and SU. This evaluation should include, but not be limited to, strategic planning, lobbying efforts and impact on congressional votes, grassroots organizing, public awareness and education, litigation, funds committed and spent, staff resources committed and expended, below the radar undertakings and work with the Pentagon’s CRWG and DOD. The final report would be made public for all to see.
I call on these groups to cooperate fully with this undertaking because it would provide transparency, show which leaders and groups were most effective in terms of resource utilization, and return on investment of time and money, thus allowing supporters and donors to determine where they are getting the “best bang for the buck.” The debriefing project could be funded and conducted by private donors and/or foundations such as Arcus, Bohnett, Gill, and Haas who should be most interested in seeing how their gifts were used.
Those groups that fail to cooperate would be held accountable by the community.
Only if we learn from the past, can we succeed in our inevitable march toward the full equality promised to every American citizen. This is the beginning of the end of our status as second-class Americans. Now is the time for evaluation, preparation of the battlefield, education, lobbying, litigation, and the hard work of being clear-eyed and focused on the path ahead. Now is the time for us to create our roadmap to win again.