President Obama

If past is prologue, 2011 should turn out to be a fairly decent one for the LGBT community. It’s not that everything turned out so rosy for the community in 2010, but the gains registered more powerfully than the losses.

Here’s a look at the top five news stories for the LGBT community in 2010 and why, in many cases, they signal a better tomorrow:

1. Congress passes a bill to repeal Don’t Ask Don’t Tell. Anyone who was paying attention in 1993 knows what a devastating setback the community suffered with the codification of the military’s ban on gays. The community itself had asked the newly elected Democratic President, Bill Clinton, to end the military’s long-standing policy banning gays from service. But instead, Senator Sam Nunn (D-Georgia) orchestrated a parade of testimony and innuendo to suggest that the mere presence of gays would violate the “sexual privacy” of heterosexual servicemembers. One female Naval petty officer testified that, “You are asking me to sleep and shower with homosexuals. You are asking me to expose my sexuality….” Not surprisingly, 56 percent of the public opposed allowing “homosexuals” to serve “openly” in the military in 1993. In December 2010, only 21 percent of Americans felt that way. And Democratic President Barack Obama, using a strategy of sticks and carrots that sometimes angered the LGBT community, helped drive through passage of a bill that will eventually lead to a dismantling of the ban.

   What does that say about 2011? Given the shaky economy, high unemployment, and intense partisan divide in Congress, there is little likelihood the Obama administration will take on another piece of pro-LGBT civil rights legislation in 2011. The presidential election campaign of 2012 begins in earnest now and President Obama must tend to a wide variety of constituencies, as well as Middle America in general. But he has shown—even before repeal of DADT—that his administration is willing to use its power to adopt more LGBT friendly regulations and policies that will advance the LGBT civil rights ball down the field. And that is likely to be where the action will be, for the Obama administration, in 2011.

2. Federal judge rules Proposition 8 unconstitutional. U.S. District Court Chief Judge Vaughn Walker ruled August 4, 2010, that California’s voter-approved constitutional amendment banning same-sex marriage violates the U.S. Constitution’s guarantee of equal protection and due process. The result came following a three-week-long trial in San Francisco during which famed conservative attorney Ted Olson and famed liberal attorney David Boies mounted a comprehensive case against Proposition 8, passed in 2008. They showed how the initiative harmed gay people as a minority and was driven by the fear and animus of those who sought its passage. The participation of Olson and Boies has made this the most high-profile legal challenge in LGBT history. And it seems almost certain to bring before the U.S. Supreme Court the question of whether the bans in California and in 44 other states (by law or decree) are permissible. The 9th Circuit U.S. Court of Appeals will weigh in on the dispute in 2011.

   What does that say about 2011? The appeal before the three-judge panel of the 9th Circuit, on December 6, seemed to go well for opponents of Proposition 8. Questions from the judges seemed to indicate they are seriously considering whether Yes on 8 proponents even have standing to bring their appeal. But regardless of how they rule—on standing and/or on constitutional issues—their decision(s) will almost certainly be appealed to the full 9th Circuit bench and then, eventually to the U.S. Supreme Court. The composition of the current Supreme Court, coupled with the activist tendencies recently demonstrated by its conservatives, makes an outcome there completely unpredictable. A ruling on the constitutional issues will probably not be in front of the highest court until late 2011 at the earliest, and more likely 2012. But a win at the 9th Circuit level—even if later overturned by the Supreme Court—would go some distance to undermine the political argument that Walker was just an “activist judge.” It would also provide another boost of momentum for public opinion to continue its journey toward getting used to the idea of gay couples obtaining marriage licenses.

3. Republicans win control of the House. History has shown that, to be successful at passing pro-gay legislation, it’s best to have a Democratic president and Democratic majorities in both houses of Congress. For two years, the LGBT community has experienced that generally supportive political climate in Washington. But on November 2, 2010, Republicans won enough seats in the House to take over majority control starting in January 2011. They also increased their margin in the Senate, from 41 seats to 47.

   What does that say about 2011? Immediately, there will be “zero” chance of any pro-gay legislation passing in the next Congress, says Rep. Barney Frank and others. No movement on the Employment Non-Discrimination Act (ENDA), no movement on immigration rights for gay couples, no movement on ending tax penalties for gays who provide health coverage to their partners or spouses through work. It also means the LGBT community must switch from an offensive mode in Congress to a defensive one. Given the largely unbroken Republican opposition to repeal of Don’t Ask, Don’t Tell, it would not be a surprise to see the new Republican chairman of the House Armed Services Committee, Rep. Buck McKeon (R-Calif.), hold a hearing about whether DADT repeal can, in fact, be implemented without negative consequences to military readiness. He said, in November, he would hold a hearing to examine the Pentagon’s report regarding repeal implementation. How far might Republicans try to leverage their power in the new Congress? Note this: The new chairman of the House Committee on Homeland Security just announced he would hold a hearing on the “radicalization of the American Muslim community.” Apparently, the sky’s the limit.

4. The U.S. Supreme Court issued two gay-helpful decisions. The nation’s highest court issued two decisions in June that bode well for the LGBT community, both on cases from the 9^th Circuit. First, in Doe v. Reed, it upheld a Washington State law that requires that petitions for putting issues on the ballot be made public. And second, in Christian Legal Society v. Martinez, it upheld a California college’s policy banning discrimination based on sexual orientation in campus group membership. In Doe, the high court held that state laws requiring public disclosure of petitions for ballot measures protect the integrity of the electoral process. A group opposed to domestic partnerships had argued its petitions should be protected from disclosure, claiming petition signers would be harassed by people with a different view. In Christian Legal, the decision was of greater symbolic value than legal: It refused to say that religious beliefs always trump non-discrimination policies. A Christian student group at a public law school in San Francisco had claimed free exercise rights to get around the schools non-discrimination policy.

   What does that say about 2011: As much as the Doe decision was helpful, it was also indecisive. Chief Justice John Roberts, writing for the 8 to 1 majority, suggested to plaintiffs that they might get a better result if they limited their challenge to how the state law impacted petition signers for the domestic partnership referendum specifically. The plaintiffs said they would, so the case is almost certainly going to be back, probably in 2011. And there seems little doubt that Christian Legal, or some other right-wing religious entities, will find a way back, too. Such a group has a petition pending before the court now, challenging the city’s right to prevent them from mounting a ballot initiative against D.C.’s marriage law.

5. Republican Scott Brown wins Ted Kennedy’s seat. Martha Coakley, Massachusetts’ pro-gay attorney general, was supposed to be have been a walk-in to win Democratic Senator Ted Kennedy’s seat in the U.S. Senate after his death. But a relatively unknown Republican state senator Scott Brown trounced her in the special election last January. The Boston Globe called it “one of the biggest upsets in Massachusetts political history,” but it was bigger than that. It completely changed the dynamics of the 111^th Congress and quashed the “hope and change” prospects the LGBT community expected from the inauguration of Democratic President Barack Obama and a Democratic majority in the House and Senate. Brown’s election took from Democrats the 60^th vote they needed to ensure that legislation reached the floor of the Senate. And Republicans used that advantage throughout the year to thwart the advancement of numerous pieces of legislation, including a measure to repeal Don’t Ask, Don’t Tell. The Senate became a quagmire of partisan warfare for the sake of partisan gain though neither side really gained much from it.

   What does that say about 2011: For the foreseeable future, Congress is like a ship on a stormy sea of waves, rolling to one side and then the other. The LGBT community has already demonstrated it knows how to shift its own balance in order to keep that ship moving in the right direction. It somehow convinced Brown and five other Republicans to jump the GOP ship and join the Democrats to enable DADT repeal to come to the floor of the Senate and be passed. Strengthening those alliances, however temporary and issue-specific, will be important to defending current civil rights gains and pushing for others in the future.