In an unusually reflective moment a couple weeks ago, Senate Majority Leader Harry Reid told reporters that his niece is a lesbian and that he is considering bringing the Employment Non-discrimination Act to a vote this year.
Then, noting that ENDA might not have enough support to pass, he mused: “It’s hard to comprehend that we haven’t done a better job.” Agreed. The idea of providing basic workplace protections to gay employees was first introduced in Congress in 1974 and today 90% of Americans believe those protections already exist.
But just one week later, during the Senate Judiciary Committee’s deliberations over immigration reform, Reid’s colleagues – led by Sens. Chuck Schumer, Dick Durbin and Dianne Feinstein — demonstrated why the Senate hasn’t done a better job. All three implored the committee chairman, Sen. Patrick Leahy, not to offer a provision that would have helped equalize immigration law for LGBT Americans by allowing them to sponsor their partner for residency. It would doom the bill, they said, too many people were against it.
“I don’t want to blow this bill apart,” Sen. Feinstein asserted.
Sen. Durbin offered that in his “heart of hearts” he believed Sen. Leahy was doing the right thing.
“But,” he added, “I believe this is the wrong moment, that this is the wrong bill." Translation: This is an immigration bill, Mr. Leahy, not a gay bill.
Here’s the subtext of what they were saying: Not only do these senators seem to believe gay Americans are a separate class of citizens, they believe gays are a separate class of humans. We may be immigrants, but our gayness is entirely incidental to that identity. We may love, but that love isn’t worthy of recognition. Indeed, LGBT families – which include children, by the way – are not families at all. They are some aberration in the eyes of these senators. If that were not true, they would have insisted that immigration reform address these binational families – because being separated from the one you love based on the fact that they are a foreign national is an immigration issue, not a gay issue.
Poor Dems, some said. They had no choice. Including LGBT families would kill the bill. OK, before we proceed, let’s agree that they aren’t LGBT families, they are families. Period. So from here on out in this piece “family” = “LGBT family.” They are one in the same.
Now this is where Capitol Hill becomes the land of self-fulfilling prophecy. Republicans said they would abandon the bill because Democrats never challenged them not to say it. It’s that simple. And the more Republicans said it and the more strident they got, the more true it became. Why would including families kill the bill? Because they said it would — i.e. self-fulfilling.
If Democratic senators had stood up for families at the very beginning of the negotiations – if they had said to Sen. Lindsey Graham, “Don’t make an issue of it because this bill must address all families or we can stop talking right now” – Graham might have chosen not to draw that line in the sand. Or perhaps Democrats could have declined to include Graham in “the gang” of negotiators if he was going to threaten destruction over this issue. How different would this whole predicament have looked if Graham hadn’t taken part? Same-sex couples were not a number one concern for Sens. Rubio, Flake or McCain initially. They hardened in their opposition the more outspoken Graham became.
Instead, Democrats bargained away our humanity at the outset. They capitulated on including families in their immigration principles; then they capitulated on including families in the base bill; then they capitulated on taking a committee vote. Every step of the way, they emboldened Graham, who drew a brighter line in the sand with each passing week. Eventually, Graham’s venom infected the rest of the GOP gang. If Graham was walking, so were they.
And so, by the time the legislation reached committee, including families in it might have killed it. But there was no vote count – no one knows if a family-inclusive bill could have passed the upper chamber. The only senators who were counted were the four GOP senators who said they would walk.
But here’s the kicker: Sens. Schumer, Durbin and Menendez – the Democrats who crafted the bill with Republicans – helped create the self-fulfilling prophecy. They chose to negotiate with Graham, they chose to signal weakness on this issue, they chose to let Graham grandstand on it – first in their private talks and then in public. And then, after accepting bald-faced discrimination as the starting point for negotiating the bill, Schumer said he was being forced to make “one of the most excruciatingly difficult decisions” of his career. Caught in a trap of his own making.
Sen. Feinstein finally named what all Democrats (and frankly, many Republicans) have been dreaming of for months and even years – that the judicial branch would make this whole big headache just go away. “The Supreme Court could just settle all of this,” she divined, suggesting that a decision overturning the Defense of Marriage Act could render all these wrenching machinations “moot.” Hooray.
So just as quickly as the Dems had stampeded toward equality while the issue was in the courts, they ditched it when it came time to legislate.
Since this is the bargain they have made, let’s just say this: If the Supreme Court saves Democrats from the nightmare they helped create in 1996, green cards for same-sex couples darn well better start flowing on day one after the ruling.
During the committee’s debate, Chairman Leahy of Vermont was the only senator who imagined what it would be like to be separated from your loved one. He didn’t wonder what it was like to be gay and be separated – the gay part was immaterial. He wondered what it would be like to be separated.
“Honestly,” he said, “I ask myself, how would I feel if my wife who I've been married to for 50 years, if we were separated that way?”
It wasn’t a gay question, it was a human question.
KERRY ELEVELD is a freelance writer, consultant, and former White House correspondent for The Advocate. She consults for Immigration Equality but the views expressed here are entirely her own.