The question of LGBT incrementalism (part 1- policy)

by: Adam Bink

Mon Nov 16, 2009 at 15:00

I've so far heard two arguments I've heard that have come out of the loss in Maine. The first is that we'll never win statewide ballot votes on marriage equality until demographics change, e.g. older, more socially conservative people become a smaller part of the electorate. The second is that the game is fixed because voting on civil rights of the LGBT community amounts to tyranny of the majority, and the majority will always vote to oppress the minority. I've dissented with both arguments.

A third argument is that, given the success in Washington State this year, the LGBT community should focus on a system of domestic partnerships for same-sex and opposite-sex couples that have full federal equality under the law. Currently, if you are in a domestic partnership arrangement- lesbian, gay, bisexual or heterosexual- the Defense of Marriage Act restricts the extension of more than 1,100 federal benefits, as it does for same-sex married couples. So you can't use unpaid sick leave to care for your partner. You can't file federal taxes jointly. You can't receive Social Security survivors' benefits. Opposite-sex couples don't take such arrangements because when they find out they don't get the federal benefits, so they opt for marriage.

But, the argument goes:

  • Members of Congress are more likely to "compromise" at approval of extending full federal benefits to those in domestic partnership arrangements, since such arrangements affect heterosexual couples too, thus diminishing the argument that these are "special rights for homosexuals". Examples include two single, heterosexual sisters living together who wish for each other to have medical decision rights, or opposite-sex couples who do not believe in the concept of marriage, or want some basic rights like hospital visitation until they decide to marry.

  • By focusing on comprehensive domestic partnerships, there is a potential to mobilize non-LGBT couples (the sisters, or opposite-sex couples who don't want to be married) who want full federal benefits. Straight allies exist as advocates for same-sex marriage, but are not as invested.

  • Advancing this strategy is more likely to win benefits in the short-term than fighting battles that will only be won when anti-equality older people become a smaller share of the electorate. Rights are more important than the "m"-word.

On the other hand, there are a multitude of problems:

  • Implementation. In New Jersey, where civil unions enacted in 2007 exist, hospitals, employers, etc. have refused to recognize any certificate that doesn't say marriage. You can argue that's a personnel problem rather than a policy problem- for example, federal laws ban discrimination in housing on many bases, but it still occurs in practice. But the problem still remains that many couples cannot use their newfound rights, so these incrementalist measures do not always work in practice.

  • Domestic partnership-type arrangements don't work across state lines. A married couple can vacation in another state and still have medical decision rights if something happens. A couple in a domestic partnership from another state do not.

  • The potential difficulty of creating a class that is lesser than marriage at the federal level and administering it. Which state programs would qualify? What about same-sex married couples?

I am always open to incrementalism, and favored that approach around ENDA and gender identity in 2007. But in this case, domestic partnerships/civil unions in practice do not work as fully as they should or are expected to. It is also dangerous to push for this as the policy goal in lobbying, and creating the impression among legislators looking for an "everything but marriage" compromise that this is the same thing in all but name. In looking at the policy execution, it's clear that it's not.

In more conservative states where it's possible to achieve these rights, we should absolutely push to do so if it's clear we are far away from marriage equality. In places where we are close- like New York, or where incrementalist measures have already been implemented, like New Jersey and DC- the push should continue. I discuss the politics of this in part two.

Adam Bink :: The question of LGBT incrementalism (part 1- policy)

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Strategic advantage and disadvantage (0.00 / 0)
 The incremental right becomes the end of progress rather than a step toward full equality. Think Jim Crow. It was meant as an incremental compromise that became the status quo.

However, this is not always true if you look at the lesson of the NAACP Legal Defense Fund's use of incremental precedent to systematically dismantle the underpinning of "separate, but equal" until we got to the final case in Brown v. Board of Education.  That was still 50 years later.

The lesson is that incremental rights can work if there is a clear strategy for moving forward, but it does not work as a compromise that includes no future path forward.

My problem with civil unions is that many people do not understand the laws, and they will assume that civil unions are  the final step, including many gay people.  This can be overcome, but it requires a lot of education. Something that puts progressives at a strategic disadvantage to conservatives.

More significantly, my issue with incremental rights is that it ignores the underlying animus issue toward gays. Until we address that animus in the law and policy as a class,  strategically you will always have this piecemeal strategy that does not look at the big picture. The big picture is that all these issues are really the same issue- the ways in which people hate gays by using the law to discriminate against us. Whether it is employment law, housing, marriage equality, military issues or class- the effect grows out of the same animus. Any strategy that seeks to avoid that animus will have a harder time working.

In fact, I think that was part of the flaw with your strategy in Maine. You must start to address the animus.  Talk to people about what they believe about gays, but now feel they can't say. Go after the stereotypes that the right will use to go for the lizard brain fears in the communities that are most likely to believe those fears before the right does. The right, again, has an easier job because the burden of proof is on us to prove we are not perverts when many assume we are.

The example I like to give is an old Italian guy who said to me in NY that he had no problem with gays so long as we do not flaunt our sexuality. His lunch hour routine was heading off to a strip joint to ogle women. He would tell us about this at work. That's the mindset you must overcome- the assumptions of this guy. That we are perverts while he's "normal." That means, IMO, directly confronting the animus, and that confrontation can not be incremental.  

A Great Book on Incrementalist Legal Strategy (0.00 / 0) Richard Kluger's "Simple Justice" which is about the NAACP and Thurgood Marshall.  It is, of course, pretty much exclusively about litigation.  I don't think the fight for marrage equality or the larger fight to end discrimination based on sexual preference or gender identity has that strategic luxery.  However, by almost any measure GLBT rights has come further since Stonewall than the civil rights movement did during any 40 year slice of the 20th Century.

The problem with these arrangements is that they do not grant right of kinship (0.00 / 0)
And THAT, Adam, is what marriage is: a legal declaration of kinship between two unrelated adults.

Domestic partnerships not at the same level of marriage (such as Washington's) do not grant a legal familial relationship. They do not allow for family court access, or mandated spousal or child support. Any right granted to a next-of-kin such as medical decisions during a period of incapacitation can be contested by a blood relative.

Here in Hawaii, we have Reciprocal Beneficiaries, which don't actually mean anything outside of the right of Joint Tenancy in entirety. They were implemented in the late 90s as an attempt to compromise with the State Court's ruling that the State could not discriminate in marriage rights with the christian hate amendment barring marriage equality. In addition to being weak as water, they apply to both unrelated adult partners AND to blood-related adults. This conflates the problem of defining what a domestic partnership is, because RBs cover people who already have a legal right of kinship by blood relation. If we are going to lobby for "incrementalist" DPs, as you suggest, they need to exclude people already related, such as a pair of sisters, in order for the statute to mandate granting next-of-kin status, and subsequent access to family courts. And yet somehow, by lobbying for the right of next-of-kin, which adults related by blood or marriage already have, we're right back into the "oh noes, teh gays want SPECIAL RIGHTS!"

The other problem with domestic partnerships is that many states with anti-gay amendments barring any relationship recognition "substantially similar to marriage" won't allow DPs the right of kinship. In such cases, DP legislation would be a piecemeal affair in which legislatures rarely enumerate the rights associated, leaving it up to state agencies or individuals to decide whether someone's domestic partnership is going to count for a legal right. That's the case here in Hawaii; there is no enumeration. You can also check out the current circus in Wisconsin for reference. Wisconsin's AG refused to defend the new DP law against a christian hate group's lawsuit. The lawsuit stated that DPs were "substantially similar to marriage" in violation of the state's constitutional anti-gay amendment, which goes beyond prohibiting marriage equality and bars any legal recognition of a relationship "substantially similar" to marriage. Nowhere in state statute or Department of Health agency rules are the specific rights associated with DPs enumerated. There is only a vague legislative budget report listing what rights DPs DON'T have. The lawsuit could strip away DPs from gay and lesbian Wisconsin couples simply because the legislature never actually said specifically what rights came in the package, leaving the door open to argue that they are substantially similar. Depending on the judge, the christian hate side could win, and Wisconsin's gay and lesbian couples could be stripped of the precious few protections they have.

IOW, DPs are crap. As you pointed out, they don't transfer across state lines. But the biggest problem is that they don't create legal families. Only marriage does that.

"My darling girl, when are you going to understand that being normal is not necessarily a virtue? It rather denotes a lack of courage." - Stockard Channing as Aunt Francis Owens, Practical Magic


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