OutRight: A Scorecard for Democrats

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Democrats are now in charge of Congress, having gotten there in part with the support of millions of dollars from national gay organizations and about 75 percent of gay voters. Gays are, indeed, perennially the third most loyal voting bloc for Democrats (behind blacks and Jews). Now, it’s fair to ask, what are gay Americans going to get in return? How are we to gauge the progress made in the next two years? Below is a scorecard.

One way to evaluate congressional Democrats is to ask whether they will be better on gay issues than Republicans were during their 12 years in power. Republicans weren’t as bad as some gay activists predicted they would be. In fact, during the 12 years of Republican rule, Congress passed only one major piece of antigay legislation: the Defense of Marriage Act (DOMA). Of course, DOMA also had the support of many Democrats and was signed by President Clinton.

In fact, there were mildly positive developments during the Republican reign. AIDS funding remained largely intact. President Bush formally kept in place Clinton’s executive order barring discrimination in federal employment; there was no attempt to repeal the order by legislation. The first hearings were held on the Employment Non-Discrimination Act (ENDA).

But it must be admitted that Republican congressional leaders tried to do more harm than they actually did–by pushing for a federal constitutional amendment banning gay marriage, for example. Republican congressional leaders also set a tone of hostility toward gay Americans, exemplified by the comments of former senator Rick Santorum warning that decriminalizing gay sex would lead to “man on dog.”  

The Democrats will be an improvement. The tone will be much better. We will hear pleasing and soothing words from congressional leaders for a change. The federal marriage amendment won’t even get a vote for the next two years.

Is this enough? For some people it will be. Moreover, all manner of excuses will be made for any lack of action: why pass legislation the President will veto, other matters require more immediate attention, the Democrats can’t afford to be seen as beholden to “special interests,” it’s more important to concentrate on electing a Democrat to the White House in 2008, and so on.  

For those who expect more in exchange for gays’ loyalty to the Democrats, here is a point system for grading them.

(1) Federal recognition of gay relationships (up to 50 points)

Congress could vote to repeal DOMA (35 points). It could vote to give spousal benefits to the same-sex domestic partners of federal employees (15 points). At a minimum, Democratic leaders could hold hearings on these matters that will get the ball rolling toward eventual federal recognition of gay relationships (3 points).

(2) Gays in the military (up to 30 points)

With strong Republican support, a Democratic Congress and Democratic president gave us Don’t Ask, Don’t Tell in 1993. The new Democratic Congress could make amends by voting to repeal the law, leaving to the president the power to decide whether to allow gays to serve (20 points). Or it could vote simply to ban discrimination against gays in the military (30 points). At a minimum, Democratic congressional leaders could hold hearings on antigay discrimination in the military (3 points).

(3) ENDA (up to 15 points)

Seventeen states and the District of Columbia already prohibit employment discrimination against gays. A federal bill making this national policy has been pending in Congress in one form or another for more than three decades. The latest version being pressed by national gay groups would also ban discrimination against transgender people, which complicates its chances of passage even with Democrats in control. Congress could pass the legislation, with or without protection for transgenders (15 points), though it might pass a weak bill with lots of broad exemptions for small businesses, religiously affiliated institutions, and the like (deduct one point for every 10 percent of gay employees not covered). At a minimum, congressional leaders could schedule another round of hearings (1 point).

(4) Hate crimes legislation (up to 5 points)

There’s no evidence that hate crimes laws actually deter hate crimes. There’s little evidence that the states aren’t already prosecuting antigay crimes. But a federal law would have some symbolic value. Congress could pass such a law (5 points). Yet a federal hate crimes law might be unconstitutional. Alternatively, Congress could pass a bill assisting local law enforcement with the investigation and prosecution of such crimes (up to 4 points). Hearings on this are of little value (1 point).

Cut this column out of this magazine (print it out if you’re reading online). Stow for two years. Before you vote in November 2008, pull it out of your desk and total the Democrats’ score. Here’s how to evaluate the total:
75-100 points: Never vote for another Republican.

 50-74 points: Democrats are worth our first-born children.

 30-49 points: Democrats are willing to fight for gay equality, at some political risk.

10-29 points: Democrats will do the minimum necessary to mollify gays.

0-9 points: Democrats know they can take gays for granted.

It’s an inexact science, but a fun one. It may not be enough fun, however, to ease the pain of what I predict will be a very low score.

Writing from the conservative side, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.

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