It was a political earthquake all right. When Republican Scott Brown defeated Democrat Martha Coakley for the Massachusetts Senate seat held for decades by the late Edward Kennedy, the fallout for progressives and liberals was instantaneous. To give but one example: before the commentators had gone off the air last Tuesday night, it was clear that President Barack Obama's health care reform bill was on life support. This week, Senate Majority Leader Harry Reid (D-Nevada) said there is no rush to approve a health care reform plan.
In the week since that upset victory, which now deprives Democrats of the supermajority and the necessary 60th vote to block filibusters, some incumbent Democratic representatives have announced their retirement rather than face angry voters in conservative-leaning districts. More will almost certainly follow. In the Senate, Democrats are bracing for losses in the midterm elections this November.
But what does the Senate shift mean for LGBT-related legislation? The political landscape has changed to the extent that all three branches of government are likely to be negatively affected.
Legislative
Senate passage of an inclusive Employment Non-Discrimination Act looked challenging when the Democrats had 60 votes; now it appears remote. Representative Tammy Baldwin (D-Wisconsin) told LGBT leaders at a conference in San Francisco in December that the House mark-up on ENDA would happen in January with a House vote expected in February. Well, it's already the end of January and no committee action has been taken, which is a precursor to a floor vote. Her congressional colleague, Representative Jared Polis (D-Colorado), was even more optimistic, saying then that the House would pass ENDA by the end of 2009. Obviously, that didn't happen.
ENDA has taken a back seat to health care reform and the economic recovery when in fact it ties in to both of those issues. Having an inclusive ENDA on the books would help keep LGBTs in their jobs, which in turn would make it much more likely that they would have at least some access to health insurance. In these difficult economic times, we wonder why LGBT lobbyists can't seal the deal by convincing lawmakers that this bill would have minimal impact on the federal budget, but could help keep LGBTs off the unemployment rolls. It's a no-brainer to us.
In terms of repealing the military's anti-gay "Don't Ask, Don't Tell" policy, members of Congress are sending mixed signals. The most recent plan floated called for including DADT repeal in a defense spending bill later this year.
Regarding repeal of the Defense of Marriage Act – that's dead in the water. It was a long shot before the Democrats lost their 60th vote. Now it's going nowhere for the foreseeable future.
Executive
Obama got his hat handed to him last week. This administration spent much of its first year mired in health care reform that it handed off to Congress, which was a huge mistake. Obama never took ownership of the reform package, leaving it to 535 lawmakers, who each wanted something special for their constituents or, in the case of Republicans, to kill the bill.
As we went to press, Obama was expected to discuss DADT in his first State of the Union speech Wednesday night. In speeches before the LGBT community, he has repeatedly and eloquently pledged to end the ban, but has yet to put forth a plan to make that happen.
Stanford political science professor Gary Segura, who testified for the plaintiffs in the federal Proposition 8 trial last week, summed up the president in terms of gays and lesbians lacking political power. Obama, said Segura, is "perhaps the best illustration of an ally who cannot be counted on, whose rhetoric outstrips his conduct."
Judicial
Speaking of Prop 8, no matter what the outcome of Perry v. Schwarzenegger at the trial level, the case is almost certain to head to the U.S. Supreme Court. Powerhouse attorneys Theodore Olson and David Boies better put the case on a slow track. With the high court's recent actions in relation to privacy matters (see last week's editorial), it appears that the current court lacks a fifth vote in favor of equal rights. Justice Anthony Kennedy, often the swing vote, lately has been moving to the conservative majority. Given the Senate shift, if there is another vacancy on the Supreme Court later this year, Obama will be hard-pressed to find a liberal-leaning judge that can win Senate confirmation. While the views of the newest justice (and Obama appointee) Sonia Sotomayor are not yet widely known, it is highly unlikely that Obama will be able to appoint a liberal to offset the conservative tilt that is now evident on the Supreme Court.
No less important are federal judge appointments. After years of Bush-era conservative judicial appointments, the time has come for Democrats to be nominated. But Obama hasn't made many of these appointments and even fewer of them have been confirmed so far. That process likely will slow to a crawl with the new configuration of the Senate.
In short, we lost last week, and it was only a special election for one Senate seat. But that one victory by Republicans, aided in large part by the Democrats' complete inability to show resolve and stick to their principles, means that LGBTs will pay a steep price for the rest of the year.