Progressive federalism? A gay liberationist perspective.

• Author: Clark, Stephen

The notion that one man in ten is gay may be a Kinsey-inspired myth, but it is not an urban myth. (1) Researchers have documented a striking concentration of gay men in the country's largest urban centers. (2) There, nearly one man in ten identifies himself as gay or bisexual while the figure is less than three percent nationally. (3) Although the concentration is less dramatic among lesbians, the gay presence in urban centers is far greater than in other parts of the country. (4)

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This concentration is a result of several synergistic forces including a perpetual Great Migration that brings lesbians and gay men to places where more tolerant attitudes make for a better quality of life and where greater numbers allow for the development of vibrant gay-identified communities--not to mention increased chances of finding a mate. (5) At the same time, lesbians and gay men who grow up in these progressive destinations tend to live more open lives than those who grow up in less hospitable locales. (6) In short, tolerant communities induce both immigration by outsider gays and greater openness among native ones.

From these dynamics have emerged gay havens, discrete places where a progressive climate and strong gay presence give lesbians and gay men an unparalleled opportunity to exercise a measure of social, economic, and political influence over the atmosphere of our communities and, hence, the conditions in which we live. Symbolized most notably by San Francisco and New York City, these havens are potential sites of meaningful gay liberation. For instance, fifteen states, the District of Columbia, (7) and more than 140 municipalities have prohibited private-sector employment discrimination on the basis of sexual orientation. (8) Not surprisingly, the list of municipalities includes most of the largest cities in the country along with smaller, traditionally progressive places, such as college towns. While these havens do not seem geographically imposing, they actually encompass more than forty percent of the country's population and jobs. (9)

Orientation Discrimination in Private-Sector Employment.

Significantly, these gay havens are not randomly distributed across the country. Gay-friendly states and municipalities tend to be clustered in the Northeast, upper Midwest, and far West, while the South, Great Plains, and Rocky Mountains remain relatively hostile regions. For instance, although a number of municipalities in such states as Washington, Illinois, and Pennsylvania have enacted gay civil rights laws, similar laws are nonexistent in places like Wyoming, Oklahoma, and South Carolina. Far from random, this distribution evinces a significant cultural and political divergence within the United States.

This regional clustering of gay havens raises questions from a gay liberationist perspective about the soundness of conventionally progressive opposition to federalism and local control. The success of the gay rights movement in certain regions, and serious vulnerability at the national level, suggests that support for a strong central government and opposition to federalism or local control might be contrary to the cause. The Supreme Court's decisions in cases like United States v. Morrison (10) and Kimel v. Florida Board of Regents (11) contradict broad, conventionally progressive interpretations of Congress' power to regulate interstate commerce and enforce the Fourteenth Amendment, and they undoubtedly frustrate important progressive interests. Nevertheless, given the demographic and the political realities of lesbian and gay life, decisions like Morrison and Kimel may be progressive from a gay liberationist perspective.

1. CONTEXTUALIZING PROGRESSIVE FEDERALISM

   There are progressives for whom the idea of federalism--or even states' rights--is not anathema. One need look no further than the overwhelmingly progressive citizenry of the District of Columbia, many of whom recognize the value in local autonomy precisely because they do not have it. As a federal enclave, the District is subject to plenary congressional control and financial coercion. Congress has power to "exercise exclusive Legislation in all Cases whatsoever, over [the] District." (12) Despite granting the District home rule, (13) Congress has retained authority to both veto District laws (14) and legislate directly. (15) Because the District may not tax federal property or the income of non-residents, (16) it also relies heavily on federal appropriations in lieu of taxes, which give Congress another powerful mechanism of control. (17) If strong national power is a progressive ideal, the District stands as a utopia of national prerogative.

   District progressives, however, do not see it that way. For many of them the idea of states' rights has come to symbolize empowerment. By 2002, two-thirds of District residents supported outright statehood for the enclave, (18) and the most assertive advocates in that quest are not neo-segregationists but leaders of the leftist D.C. Statehood Green Party. (19) The progressive citizenry of that polity bristles at subjugation to the whims of a national government that is far more conservative. District lesbians and gay men have particularly felt that frustration.

   For more than a decade, Congress blocked the decriminalization of gay sex in the District. In 1981, the District passed a measure (20) to repeal its sodomy law, (21) something half the states had already done. (22) After Jerry Falwell attacked the repeal measure as "'a perverted act about perverted acts,'" (23) the House of Representatives overwhelmingly passed a resolution, sponsored by conservative Illinois Congressman Phil Crane, to legislatively veto the Act. (24) It was not until 1993, twelve years later, that the District finally managed to repeal its sodomy law. (25)

   Congress also blocked for a decade the District's implementation of a modest domestic partnership measure. In 1992, the District passed a measure (26) to create a domestic partnership registry, (27) extend health benefits to the domestic partners of District employees, (28) and protect the right to visit one's domestic partner in the hospital. (29) At the urging of conservative Mississippi Senator Trent Lott, however, Congress repeatedly forbade implementation of the measure through annual appropriations riders. (30) Only in 2001 did Congress relent and allow implementation of the measure. (31)

   Congress nearly passed a similar rider prohibiting same-sex joint adoption in the District. In 1995, the D.C. Court of Appeals interpreted District law to allow joint adoption by same-sex couples. (32) Seeking to overturn that decision, conservative Oklahoma Congressman Steve Largent proposed an appropriations rider to forbid the District "to carry out any joint adoption of a child between individuals who are not related by blood or marriage." (33) Although the House adopted the rider in 1998, it was omitted from the final version of the appropriations bill that year. (34) The following year the House rejected the rider by the narrowest of margins. (35)

   On two occasions Congress has interfered with the protection of lesbians and gay men from discrimination. Since 1977, the D.C. Human Rights Act has prohibited sexual orientation discrimination in various endeavors. (36) In a 1987 decision that consciously sought an accommodation between the Act and religious freedom, the D.C. Court of Appeals held that Georgetown University could lawfully withhold official recognition from a gay student group but violated the Act by denying the group such tangible benefits as access to university facilities. (37) At the insistence of conservative Colorado Senator Bill Armstrong, Congress passed the Nation's Capital Religious Liberty and Academic Freedom Act, which overrode the decision by directly rewriting the D.C. Human Rights Act so as to allow religiously affiliated schools to discriminate against groups "promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief." (38)

   More recently, Congress blocked the District from enforcing the D.C. Human Rights Act against the Boy Scouts of America. In 2001, the D.C. Human Rights Commission held that the Boy Scouts unlawfully discriminated against two gay men by terminating their membership on the basis of sexual orientation. (39) The Commission cautiously distinguished the U.S. Supreme Court's decision in Boy Scouts of America v. Dale (40) on the ground that neither of the plaintiffs in the new case was a "gay activist," as James Dale supposedly had been, and there was no evidence that the plaintiffs "'would advocate homosexuality as a [Boy Scouts] ... adult leader.'" (41) Although the Boy Scouts had filed an appeal in the matter--an appeal the organization ultimately won (42)--Congress preemptively intervened. (43) While the case was pending, Congress approved an appropriations rider, initially sponsored by conservative Indiana Congressman John Hostettler, that forbade the District "to issue, administer, or enforce any order" in the case. (44)

   These experiences powerfully illustrate the progressive frustration with the lack of local control in the District. Congress has been at best a hovering threat and, at worst, an omnipotent obstructionist. Conservative politicians from other parts of the country have repeatedly induced Congress to interfere with gay liberation and other progressive policies in the District. For many District progressives, states' rights represent self-determination. Their experience presents a stark counter-narrative to the conventional progressive justification for nationalization of power. In particular, it demonstrates that the question whether federalism benefits progressive interests or burdens them is highly dependent on the context. When the context is gay liberation in a gay haven like the District of Columbia, federalism is progressive.

2. DISTRICTIZATION OF STATES AND...