The Legacy of Barney
BY E.J. Graff
December 01 2012 4:00 AM ET
Frank in 1988
Why has the Employment Non-Discrimination Act taken so long? The public supports our right to work so overwhelmingly.
We didn’t have the votes for any strong gay rights legislation until the beginning of this century. In the 1990s we could stop bad stuff, but we didn’t quite have the votes for good stuff. Think about it: Passing pro-gay stuff, supportive of our rights, requires there to be a Democratic House, Senate, president. We had that in 1993 and 1994. At that point it was still bad. “Don’t ask, don’t tell” passed. Then you had the Republicans running everything. The next time the Democrats had the House, Senate, and president [after the Democratic Party had come around to supporting LGBT causes] was 2009 and 2010.
At that point the problem with ENDA was, [repealing] “don’t ask, don’t tell” came ahead of it. We did [pass] a transgender-inclusive hate-crimes bill [the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act], and we did “don’t ask, don’t tell.” I was pushing ENDA as well. We had three items and there was only room for two.
Part of the problem with ENDA is that health care took so long. It goes through the same committee in the House as a piece of health care legislation. The next time the Democrats have the House, the Senate, and the presidency, I am confident we will get a transgender-inclusive ENDA, and if the [Supreme] Court has not carried out the equal protection thing on [the Defense of Marriage Act], we will get rid of DOMA too. But I think that won’t be necessary, I think the court will take care of it.
At what point did you start thinking of marriage as a workable issue?
Early in this century. Things were evolving, moving. I could just feel it. We were in a vicious cycle. You can’t refute the prejudice [against marriage equality] until you have the reality, but you can’t get the reality in the face of the prejudice. That’s my justification for [a ruling in favor of same-sex marriage] coming from a court first in a democratic society. And if a state supreme court does it and the public doesn’t like it, it will be overturned within a few years. In Massachusetts the [state’s Supreme Judicial] Court did it, and the public came to see, “Hey, no big deal.”
So were you in favor of Goodridge v. Department of Public Health [the Massachusetts lawsuit that became the first to open marriage to same-sex couples], when Mary Bonauto of Gay and Lesbian Advocates and Defenders filed that case?
Oh, of course. Mary Bonauto is our Thurgood Marshall. It frustrates me — they give all the attention to Theodore Olson and David Boies, but she’s much better. Our lawsuits are better.
What I was not in favor of — two things. In 1996, when the Hawaii court started to [suggest that Hawaii residents might have the right under the state constitution to marry someone of the same sex], some of our advocates made the mistake of saying, “Oh, if it happens in Hawaii, every other state will have to accept it.” A, that’s not good law, and B, it was terrible politics. That’s one of the reasons we had a harder time getting votes against DOMA [in Congress in 1996]. I actually offered an amendment to knock out the part of DOMA [section 3] that says no federal benefits [for married same-sex couples]. And I got many more votes for that than against DOMA in general, like 100 as opposed to 60. A majority of Democrats voted with me, even back in ’96.
A second thing that I thought was a mistake was what I thought was a stunt by [then–San Francisco mayor] Gavin Newsom when he announced he could marry people, which I thought was stupid. In the first place, you knew that wasn’t going to hold up. And that was a cruel thing to do to people. I really was bothered by this. Nancy Pelosi said to me, “Newsom would like your advice about whether to do this.” So I called him. I said, “I think it would be a mistake. Especially if it happens right after Massachusetts. We’re defending Massachusetts, we’re trying to keep it off the ballot. Please don’t lend credence to the argument that it can happen anywhere at any time. We need to show that it can work.” He said, “OK, well, I’ll think about it.” The next thing I knew, he announced that I had tried to talk him out of it, to make himself a hero. And of course it blew up in our face! They used him in the commercials against us. It was well-intentioned but not thoughtful.
The movement now accepts the fact that you have to win marriage state by state, partly because you get a reality that you then can use to batter down the prejudice. That’s been my view. Do it state by state and defend it and then it builds from there.