hunter of justice

Whenda ENDA, continued

I want to elaborate on my earlier post about ENDA, which some persons have misread, no doubt because my language was not clear enough.

I did NOT mean to break any news or to cause any freak-outs about the work that lies ahead in securing an inclusive ENDA.  Some readers took my reference to "issues such as restrooms" as a message that nefarious negotiations are going on or that trans inclusion is at risk.  This reaction tells me that I probably stumbled into a hornet's nest that I did not anticipate. It is possible that none of the language of ENDA as introduced will change at all.  That, however, would make it a quite unusual bill.

And as I said in my original post, it should come as no surprise - given the ENDA mess two years ago - that there would be pushback from some members of Congress on trans inclusion.  Especially because lawyers have been wrestling with restroom cases for years, I know that restroom access for employees is definitely a context where wrangling over details should be expected.  Indeed, it would be surprising if arguments over this issue did not occur.

As I also tried to describe earlier, the phase of the legislative process that ENDA has now reached is much more important than it may appear. We are at the point when the bill's original language is reviewed with a fine tooth comb, not just for the next step - the committee vote - but for the vote in the full House as well. (And then, of course, the Senate will weigh in.) So every issue, from the technical to the central, can come up during this period.  There is nothing unique to ENDA in this - it happens with every bill that is moving forward to a committee vote.

All that said, I AM worried that the lgbt community is not worried enough about ENDA.  Because of excellent work by advocates, researchers and Congressional staff, the parts of the process that are in public view - like the hearings - have been sailing along. The first predictions about the timing of floor votes were overly optimistic.  Now a tougher reality has set in.

My goal in posting on this topic is to alert people that the fight for ENDA is far from over. Winning its passage should be, imho, the top priority for 2010.

Whenda ENDA?

The joint statement issued last week by all the major lgbt rights organizations designed to generate alarm about the delay in ENDA should be heeded. ENDA is over for 2009. Why? Not because members of Congress are lazy or dismissive, but because the reality of tough issues is hitting the fan.

The next step in the process of enactment is for the House Ed and Labor Committee, which held a hearing on ENDA in September, to go through its "mark-up" process. This means that the existing bill language will be changed into the final form that will go to the House floor; the committee will pass the bill in its revised form. Although the bill can't go to the House floor for a vote until after the committee votes, the revisions made in the mark-up process are not just those needed to get a majority vote in committee (House Ed and Labor is probably the farthest left committee in Congress); they embody the adjustments and deals needed to insure the bill's passage in the full House.

It should come as no surprise that the bill's provision of job protection for transgender persons, which likely would not have survived a Republican amendment to strike two years ago, is proving to be a potentially tough sell. Advocates are tweaking and talking, trying to achieve wording on issues such as restroom use that can stand up under the Republican ugliness that will kick into high gear when a floor vote is scheduled.  This is one reason why referenda votes within the last year in Kalamazoo and Gainesville were so important - in both cases, conservatives sought a popular repeal of a local anti-discrimination law covering both sex/o and GI by singling out trans people for attack.  In both cities, voters reaffirmed the anti-discrimination laws. You can bet that advocates on Capitol Hill will be mentioning Kalamazoo and Gainesville every chance they get.

In addition to trans issues, there are also some fairly technical legal questions regarding the bill as well, for which clarifying language may be added.

The goal now is to do whatever rewriting is necessary to move the bill as early as possible in 2010. The Senate will take up the version of the bill that the House passes. In the Senate, there could well be more debates over additional amendments, although ideally the deals made now will be sufficient for both chambers.

With a lot of work and a little luck, there could be a White House signing in the spring.

Who's on first? Congress and states reshuffle lgbt issues - Updated

In  last week's election, Maine, New Jersey and Virginia delivered a triple whammy to progressives.  Although it is a mistake to treat these results as a herald of conservative resurgence - polls also show strong support for a public option in health reform, for example - it is nonetheless silly to deny that winning the elections in those three states (or two, or one) would have been a lot better than losing all of them. Instead, marriage bit the dust in yet another ballot contest; and Dems in Congress are spooked by the loss of the two governorships, no matter how many op-eds proclaim that the results were driven by local issues.

So what happens as a result?  As one of the most vulnerable and expendable of Dem priorities, lgbt issues look considerably shakier than they did two weeks ago.

In Congress, Rep. Barney Frank - who, whatever his faults, often speaks realpolitik to wishful thinking - now says that ENDA will likely get to the House floor in February.  This is not what advocates were thinking two weeks ago, when the sense was that mark-up in the House, followed by a floor vote, could happen before Thanksgiving, certainly before Christmas.  Instead, Barney is predicting that domestic partner benefits for federal employees is likely to jump the queue, moving ahead of ENDA in the sequence of lgbt rights legislation. Okay, federal employee benefits is an important issue. But ENDA is the bill that will shift workplace dynamics and help achieve basic material equality for every lgbt person in the nation who is employed. 

The difference between the two? ENDA includes transgender persons; partner benefits does not implicate that issue. In other words, this is ugly. And dangerous. It is ESSENTIAL that both the House and the Senate pass ENDA before the 2010 election season begins in a few months, around spring break in academic-speak. (In some, mostly Beltway, politics-obsessed quarters, it began on November 5, 2008.)

(UPDATE 11/17 - The mark-up in the House committee on the Domestic Partners Benefits and Obligations Act will be next Wednesday, November 18. You can watch it here. The mark-up on ENDA was originally set for the 18th, but has been postponed, with no new date set.)

And in the states -

In New Jersey, the plan was always that the lame duck legislative session would enact a marriage law, regardless of who won the governor's race. That is still the plan, but it looks less like a lock than it once did.  Soon to be ex-Governor Jon Corzine will sign a marriage law if it gets to him in the two months remaining in his term. After that, incoming Governor Chris Christie has vowed to veto such a bill. Although the top job changed hands, there was essentially no change in the party breakdown in the legislature. So will the deal to pass a new marriage bill hold, or will the Maine vote scare off enough legislators to delay any possibility in NJ for another four years? Apparently, there is little doubt that a marriage bill would make it through the state house, but the state senate vote is likely to be a squeaker.

And New York ...What can I say -- New York's state legislature has been dysfunctional for so long that even the smallest sign of adulthood looks like up from here. Governor David Paterson, who is as strong a supporter of marriage equality as any non-gay politician anywhere, has apparently struck a deal with state senate leaders to guarantee that there will be vote on the issue before Christmas. (See Gay City News for a fascinating account of the machinations.) Which side will win this vote is anybody's guess.

If we get to New Year's Day 2010 and neither New York nor New Jersey has legalized gay marriage, that campaign will be hitting its lavender ceiling much sooner than the advocacy groups expected.

ENDA in the Senate: how the hearing went

Bottom line: the hearing on S. 1584, the Senate side version of ENDA, was smooth sailing. Both this and the House committee hearing were probably more theater than anything else.  Apparently, theater on this topic is not terribly appealing to members of Congress, since only three Senators (committee chair Harkin plus lead sponsor Merkley and Franken) stayed for the full hearing; only one additional Senator (Bennet) attended for part of it. On the House side, most Dems and even a couple of Republicans put in an appearance. Attendance is irrelevant to the end result, though - the hearing stage is now completed, and the committees in both chambers can move to mark-up, hopefully this month.

One difference in the dynamic of the hearing was that the attention paid to the two Republican witnesses - a management side lawyer and a religious broadcaster - was the opposite of what happened in the House hearing.  There, committee members seemed interested only in particular points of employment law that arguably could be clarified.  In the Senate, those issues were largely ignored, and instead the religious broadcaster drew a number of questions.

You can watch the hearing and read copies of the testimony here.

ENDA chugging along

Both publicly and behind the scenes, things are moving on ENDA.

Tomorrow at 10 a.m., the Senate Health Education Labor and Pensions (HELP) Committee will conduct a hearing on this year's (trans inclusive) version of ENDA. You can watch it here; Beltway denizens can show up in person at the Dirksen Senate Office Building, Room 430.

The Republican witnesses in the Senate will be the same two who testified on the House side: management side lawyer Camille Olson and Religious Broadcasters Association official Craig Parshall.  Representing the Obama administration will be Tom Perez, the head of DoJ's Civil Rights Division.  Other Dem witnesses will be Illinois Attorney General Lisa Madigan, University of Colorado Law Professor Helen Norton, a Nike Corporation respresentative, and a Massachusetts police officer.

Behind the scenes, House members are hoping to schedule a mark-up (a session during which Education and Labor Committee members will offer amendments to the bill) soon. At that point, there will be a "chairman's mark" that will include any modifications that the sponsors wish to make before the bill moves to the House floor.  The chairman's mark effectively substitutes for the version of the bill as originally introduced. The floor vote on ENDA in the House will probably occur about a week after the mark-up.

The disparate impact non-issue in ENDA

By Guest Contributor Harper Jean Tobin

At last week’s House Education and Labor Committee hearing on ENDA, witness Camille Olsen, an attorney who represents employers, raised several questions about what she characterized as ambiguities in the bill. Among the points Olson raised was the question of “disparate impact” claims under ENDA. Olson’s technical arguments were potentially confusing even for an attorney like myself, so it’s worth trying to explain them in plain English.

Under existing employment discrimination laws, there are two types of unlawful discrimination claims. “Disparate treatment” cases are where there is evidence of intentional discrimination by the employer. Vandy Beth Glenn suffered a classic case of disparate treatment when her boss fired her for the stated reason that she was transitioning from male to female. The principle of “disparate impact” is different: an employer may not take actions that have the overall effect of excluding a group of people, unless there is a sufficient reason to do so.  For example, height and weight requirements have a disparate impact on women because (even though some women would meet them) they tend, on average, to exclude more women than men. Unless an employer can demonstrate a sound reason for using these requirements, they will be deemed discriminatory.

The disparate impact approach has been a powerful tool for promoting the inclusion of women and minority groups in the workplace. Some conservatives, however, oppose it because they view it as a form of “reverse discrimination.” Justice Antonin Scalia even speculated earlier this year that disparate impact laws could be unconstitutional. Because it has become something of a political football, disparate impact would be a sticking point under any new anti-discrimination law. But as Rep. Robert Andrews pointed out at the hearing, it would be hard to think of a situation where a disparate impact claim could be brought under ENDA. (No short men or tall women? No Streisand fans need apply?)  So, to avoid distracting debates on the subject, ENDA states that “Only disparate treatment claims may be brought under this Act.” That seems plenty clear to us. But Olson suggested that ENDA needs, well, added redundancy: to provide in so many words that disparate impact claims are barred, and that “disparate impact” means that same thing it does under every other law. Of course, as Acting EEOC Chair Stuart Ishimaru stated at the hearing, that’s really not needed: read in context, the bill is already crystal clear.

Like many of the other questions that have been raised about ENDA, this one is really a non-issue. We can expect to see more such non-issues raised in the weeks ahead.

-- Cross-posted at the Transgender Equality blog

Matt Coles - Making the non-discrimination norm local, even after ENDA

A few good words from Matt Coles of the ACLU LGBT Rights Project -

Tomorrow - Kate Kendell on 21st century civil rights lawyering.

ENDA - how the hearing went

To cut to the chase: yesterday's hearing before the House Education and Labor Committee probably could not have gone better for supporters of ENDA. You can watch it and access copies of all the written testimony at the Committee's website. Special cheers to witnesses Vandy Beth Glenn, Bill Eskridge and Brad Sears.

The Committee staff did a superb job of preparing the Democratic members for the discussion. There were no fireworks at the hearing, doubtless due in large part to the fact that only a handful of Republican members attended, at least one of whom is an ENDA co-sponsor.

A few comments on the two Republican witnesses:

> Virtually all of the discussion on possible problems with the bill centered on the testimony given by Camille Olson,a management side attorney with Seyfarth Shaw and a member of the policy subcommittee on equal employment opportunity of the Chamber of Commerce. In other words, she was representing employers. Her testimony was neither in support of or in opposition to ENDA, but was focused on raising potential objections to specific provisions in the bill. The main point of her testimony was that there is "ambiguity and uncertainty" in the bill at multiple points. Her issues included: whether ENDA will duplicate Title VII's cause of action for sex stereotyping, what changes employers will have to make regarding restroom use policies in order to avoid discriminating based on gender identity, whether ENDA will generate more attorneys fees awards for plaintiffs than Title VII does, and whether the explicit limitation of ENDA to disparate treatment claims really means that disparate impact claims are excluded. Acting EEOC Chair Stuart Ishimaru, testifying on behalf of the Obama administration, answered the last point by saying that, yes, there really is an exclusion, and I would direct the EEOC to not pursue any claims brought to it which fall into the category of disparate impact theories. But the other points generated a fair amount of discussion, and may show up in later phases of the legislative consideration of ENDA.

> The second witness sponsored by the R members was Craig Parshall, general counsel for the National Religious Broadcasters. He and Olson pretty much embodied the two wings of the Republican Party - the religious/social conservative wing and the business wing. By contrast to Olson, Parshall's testimony did not get much take-up or generate much discussion. This may be a result of so few Rs being there to pick up those themes. The tone of the committee and floor debates could well be very different from the tone of the hearing.  But it also struck me as perhaps auguring a new general attitude toward ENDA, of - more or less - morality, schmorality, let's keep our eyes on what's really important: insuring that this law doesn't cost employers too much.

ENDA cometh

The campaign to enact ENDA will begin anew at 10 a.m. today with a hearing before the House Committee on Education and Labor. The hearing will be in Room 2175 of the Rayburn House Office Building. If you inhabit the DC environs, get there early - there will probably be heavy demand for seats.  If that's not an option, the webcast should be available here, or check out Jillian Weiss's liveblogging. Witnesses will include Representatives Tammy Baldwin and Barney Frank; EEOC Acting Chair Stuart Ishimaru; Yale Law Professor Bill Eskridge; and Williams Institute Executive Director Brad Sears.

This year's version of ENDA is HR 3017. It prohibits gender identity as well as sexual orientation as a basis of discrimination. In other respects, it is essentially the same as the version of ENDA that passed the House two years ago (HR 3685).

No bill is perfect, and a number of problematic exceptions have been built into this legislation over the years in the effort to ensure its passage. Section 4(g) expressly limits ENDA's coverage to disparate treatment (facially discriminatory practices) and excludes disparate impact claims (claims based on facially neutral practices which have a discriminatory effect that disadvantages lgbt workers). Section 8(b) provides that ENDA shall not be construed to require any employer to give unmarried couples the same benefits offered to married couples; and Section 8(c) effectively limits the term "married" to heterosexual couples. Section 6 provides that any religious organization that is allowed to discriminate based on religion under Title VII can also discriminate based on sexual orientation or gender identity. 

With regard to dress and grooming codes, ENDA would allow employees to abide by the rules for whichever sex aligns with their gender identity [Section 8(a)5)].  In other words, a transwoman could comply with the dress or grooming code (if any) that applies to all women employees. The problems will come in cases like Jesperson v. Harrah's, 444 F.3d 1104 (9th Cir. 2006) (en banc), which upheld the firing of a (non trans-) woman who did not want to wear make-up at work. The Ninth Circuit found that the make-up requirement was reasonable, and that the requirements imposed on men and women were comparable (clean shaven rule for men, make-up rule for women). Although ENDA forbids discrimination based on "gender-related...appearance," the dress and grooming code carve-out would leave the holding of Jesperson undisturbed.  

Will ENDA finally pass? That question breaks down into two parts: will it pass the House, and will it pass the Senate?  Since essentially the same bill but for the inclusion of gender identity passed the (then more conservative) House two years ago, the outcome in the House will almost certainly turn entirely on the gender identity issue.

When it goes go to the House floor, the Republicans will probably have the opportunity to offer only one amendment (that's how the majority party runs things in the H of R). There is no way to predict whether the Rs will fashion their one shot at killing or crippling the bill around gender identity or around some other issue (like marriage or religion). If the Dems hold it together, the Rs' effort - whatever it is - will fall short. I'm betting that the good guys will win and that ENDA will pass the House intact (although don't press me for anything more than a gut instinct in support of that).

Then it's on to the Senate, where everything is iffier. No version of the bill has been put to a vote in that chamber for more than 10 years (long before gender identity language).  I doubt that there is yet a clear read on its chances of going through with gender identity protection intact. Given everything else the Senate has to deal with this fall, my main prediction is that ENDA won't come up for a full Senate vote until some time in 2010.

Whatever lies ahead, the action starts today.

Feldblum to become first openly gay EEOC Commissioner

The White House announced today that Georgetown Law Professor (and partner of yours truly) Chai Feldblum will become the first openly gay Commissioner on the Equal Employment Opportunity Commission. After confirmation, Chai will begin a five-year term as one of five commissioners. The EEOC is responsible for issuing regulations to enforce federal anti-discrimination laws and for authorizing the initiation of major test case litigation by the Commission's legal staff.

And yes, probably the most important effect of this will be when ENDA passes. The EEOC will be the agency responsible for issuing regulations for its enforcement. Having Chai there to set the framework for the initial regulatory response to ENDA is important beyond words. Mazel tov!

What is the difference between sexual orientation discrimination and gender stereotyping?

For most people, much of the time, the association between homosexuality and gender nonconformity is pretty strong, common sense, a no-brainer.  Professor Jeffrey Hirsch (Tennessee Law) noted on the Workplace Law blog that he, like the author of the Wall Street Journal Law Blog, was puzzled by a new Third Circuit decision that drew a sharp line between the two, when in reality the difference is often fuzzy. As the WSJ phrased it:

We found ourselves a bit puzzled by this distinction, which, on first blush, strikes us as a bit arbitrary: If a gay man is fired because he’s acting in conformity with the stereotype of a gay man, he can sue under Title VII. At the same time, if he’s fired because he’s gay, he can’t sue. That struck us as odd.

But if you keep up with Title VII law, the latest ruling is simply another in what is becoming a long line of courts that allow gay (or trans) plaintiffs to assert a claim for discrimination based on sex - which of course is covered by Title VII - when the adverse action turned on the individual's failure to adhere to gendered standards of conduct and appearance.

In Prowel v. Wise Business Forms, Inc., 2009 WL 2634646, the Third Circuit reversed the trial court's dismissal of the gay plaintiff's sex discrimination claim on the ground that Title VII does not cover sexual orientation discrimination.  The facts showed that he had been verbally harassed at work over a significant period of time, including having been repeatedly called "rosebud," "princess" and "fag." The Court of Appeals reasoned that the plaintiff had

adduced evidence of harassment based on gender stereotypes...[I]t is possible that the harassment of Prowel was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes...Because both scenarios are possible, the case presents a question of fact for the jury...

Yes, the reasoning is tortured, even silly, but that's the result of there being no explicit prohibition against discrimination based on sexual orientation. A lot of time, energy and money get wasted in cases like Prowel's - of which there are many - because litigants and judges have to weave their way through this logical maze.  The increasing willingness of courts to let these cases proceed to trial is another signal to Congress that it might as well pass ENDA - just make the law what it obviously should be and allow this kind of dispute to be resolved much more efficiently.

British group issues guide to balancing religion and gay equality in the workplace

The Stonewall Foundation has published a report on "Religion and Sexual Orientation: How to manage relations in the workplace" that Congress ought to read in advance of its consideration of ENDA. Aside from some platitudinous guidelines ("treat everyone with respect"), the core of the document is a series of case studies, including a local clerk who refused to conduct civil partnership ceremonies, a counselor who balked at providing psychosexual counseling to same-sex couples, and a senior employee who constantly quoted Bible passages to a junior employee. The rule in Britain is that religious organizations can discriminate only if the job position or activity in question is directly associated with the doctrine of the faith group.  By contrast, the religious exemption in ENDA would grant religious organizations essentially a blanket waiver of ENDA's requirements. As this report documents, the British system is workable and fair.

Introductions ... ENDA, meet EHDLA - you're perfect for each other

The important effort to enact the Employment Non-Discrimination Act got its official launch on Wednesday, with the introduction of HR 3017.  Lead sponsor Barney Frank was joined on the bill by 117 cosponsors. This year's version contains no surprises: it is trans-inclusive, but also grants religious groups a free pass to discriminate. Most people think the trans-inclusive version will pass the House, and that a version with a more proportional religious exemption would not.

The day before, Rep.Tammy Baldwin introduced a new and largely unexpected (beyond the Hill) bill, the Ending Health Disparities for LGBT Americans Act, HR 3001.  EHDLA is a comprehensive collection of reforms covering such topics as non-discrimination in federal health programs, cultural competence training for health professionals, Medicare benefits for same-sex partners, etc etc. The goal is not so much enactment of the package as creating a resource upon which progressives can draw for ideas as health reform (hopefully) progresses.

Personally, I think they make a lovely couple.

LGBT legal goal: five in four

The bittersweet combination of the Prop 8 loss and the Obama win, combined with the Dems picking up more seats in both houses of Congress, means that a much greater focus on federal-level policy-making is in the offing in lgbt politics. In thinking about what should be prioritized, the first cut is between what the new Congress can do and what steps can the new administration take with confidence that Congress won't overrule a progressive initiative.

There are certainly lots of possible goals, but I would suggest two executive orders and three major pieces of legislation as the primary targets for the lgbt rights movement over the next four years. Five in four, you might say. Not that these should be the only objectives: there is much that can be done at the congressional and agency levels as well.

I would argue, however, that these five would be the most effective and pragmatic solutions to the issues facing the largest number of lgbt Americans.

• President Clinton issued an executive order that prohibited discrimination against federal employees based on sexual orientation. President Obama should add gender identity to the list of prohibited bases for discrimination. One method would be by defining either "sex" or "sexual orientation" in the current order to include gender identity and expression. He has strong legal grounds for doing so, especially if the new language is added to the definition of sex discrimination, because he can invoke the ruling in Schroer v. Library of Congress, in which a federal court held that it was a violation of the sex discrimination aspect of Title VII to withdraw a job offer made to a transgender woman.

  President-elect Obama has committed his administration to support anti-discrimination laws that include protection for gender identity and expression. If that means anything, it should mean that he will be willing to actually make that policy a reality for federal employees. And as a matter of principle, it's a good thing for the federal government in its capacity as the nation's largest single employer to impose anti-discrimination obligations on itself before applying them to other employers.
  

• Another important signal from the White House on employment matters will come if and when President Obama adds sexual orientation and gender identity to the list of prohibited grounds for discrimination by private companies that have contracts with the federal government.


• On the legislative side, the top priority is for Congress to pass an inclusive ENDA. This would make the first two points unnecessary, but I don't think that a trans-inclusive ENDA will get to the floor of either house until 2010, at the earliest. The executive orders could be issued any time after Obama's inauguration.


• Also legislatively, repeal DoMA (especially the part limiting federal government recognition of marriage to those between a man and a woman, even if state law provides otherwise). And enact, perhaps as an amendment to DoMA, a provision that grants all federal benefits and rights and responsibilities under federal law that now go only to married persons to persons in a family relationship status formally recognized under state law. In other words, eliminate the differential that persons in civil unions now face because their status has zero standing under federal law.


• Lastly, reform the health care system so that every American - whether married, single, partnered or living in a cave - has access to health care. This may not be solely an lgbt issue, but it is a fact that persons in unmarried partnerships have much higher rates of uninsurance than even the abysmal U.S. average. And health care benefits are probably the number one material issue that drives the family recognition agenda. Let's solve that problem at the root.

What I think should be the priorities don't necessarily have anything to do with sequence. As Rep. Tammy Baldwin has said, the first lgbt issue that Congress will move on is hate crimes, because it should be fairly easy legislation to pass (although of what great effect I've never been certain). The splashiest, most symbolically rich action would be a repeal of DADT. I certainly support that, but I don't rank it in my top five.

Political vagaries that we can't foresee now may affect some of these calculations, and one has to be ready to recalibrate if events demand that. But for now - five in four. Let's keep our eyes on that prize.

Is there life after Prop 8?

I've been both very busy and traveling a lot since the election, so this is my first chance to lay down a few thoughts on the post Prop 8 world for lgbt rights. Irony of ironies, my travels have taken me first to Los Angeles and now to Utah, where I arrived Friday night too late for this massive demo outside the LDS temple (photo credit Lisa Duggan).  Now I'm in southern Utah, taking a break, looking out at red rock formations that look otherworldly to a lifelong east coaster like me, like gigantic board game symbols for mountains, or abandoned art projects.

Even in the midst of my own personal rediscovery of the world of John Ford westerns, Prop 8 stings like a MFer. Sure the movement will move on; and at some point in the future, when re-raising $35 million seems like a fun thing to do, we can recapture marriage equality in CA. Right now, it feels like the first days after our team lost Bowers v. Hardwick in the Supreme Court. The silver lining of that defeat was that it launched a series of challenges over the ensuing 10 years to sodomy laws in state courts. Our team won almost all of them. Those state supreme court decisions proved to be the legal tipping point for persuading the U.S. Supreme Court in Lawrence v. Texas in 2003 to reverse Hardwick and find all sodomy laws unconstitutional. In effect, that ended the criminalization of gay identity in the U.S.

Losing Prop 8 leaves one litigation challenge to exclusionary marriage laws pending, in IA, where oral argument will be held in a month, on December 9. Then the marriage battles will shift to state legislatures. In NY, where the Dems now control both houses of the legislature as well as the governor's office, passing a marriage bill is a possibility (although far from a certainty; it will probably take some time).  The political situation in NJ might be more propitious. And certainly the most powerful comeback to the loss in CA would be a victory in a political, not judicial, branch. Legislative branch victories will be the silver lining of losing Prop 8.

Not that the movement won't pay a price for Prop 8. My prediction - and again, this post is only about the legal side of things - is that the other side will try to capitalize on its victory by repeating the ARK victory that barred same-sex (and other unmarried) couples from adopting children or serving as foster parents. After all, they've already succeeded in banning marriage in almost all states; not much room for them to grow on that issue.  So my hunch is that they will target super conservative states, and move on the adoption front.  Repelling those will certainly soak up some time and money.

The place for our team to concentrate - the location of our greatest strength - is the non-marriage front. After all, if we had not had a Republican president and congress for these last years, we would have enacted ENDA in the first year or two of the Gore presidency.  The legal movement's priority would have been securing and implementing a national anti-discrimination law. I don't think that the focus we have seen on marriage would have mushroomed in anything like the way that it has. At the very least, Gavin Newsom would not have been sitting in the audience for a Bush State of the Union address that would have angered him into going home and launching a gay marriage initiative.

The upside potential for lgbt rights is enormous right now, although it may not have a lot to do with marriage.  Two goals seem obvious: 

Enact an inclusive ENDA. Of the 10 largest states in this country, only 3 have a statewide law that prohibits discrimination based on sexual orientation or gender identity. And most state - and certainly local - laws that do cover such discrimination have weaker remedies than ENDA would provide. 

Repeal DoMA (what is critical is the portion that prohibits federal recognition of same-sex marriages) and enact a federal law that provides for federal recognition of marriage equivalent statuses.  That change would provide full material equality to same-sex couples who live in civil union states (as CA now is, again). And it would give us all a fresh start on relationship issues.