Amend this!

PlanetOut - June 15, 2006
By Keith Boykin
http://www.planetout.com/news/feature.html?sernum=1564

The only enduring way to protect our freedom and to secure our rights is to change our attitudes and to change the attitudes of the people around us.

I'm getting tired of all the back-and-forth battles gay people have to fight just to secure our basic human rights. I'm tired of all the ballot initiatives on adoption and parenting. And I'm tired of all the state and federal constitutional amendments on marriage. It's time for us to fight back.

But before we throw in the towel on our current efforts, we have to remember that the proliferation of anti-gay legislation is an indication of our own success. The backlash is a clear sign that we're winning the so-called "culture wars," and the conservatives are running scared. It's also a reminder that our legislative and judicial victories are only temporary unless and until we change the hearts and minds of the American people.

I started writing this column with the intention of advocating for a new federal constitutional amendment to outlaw gender and sexual-orientation discrimination. Instead of spending so much time on the defensive, I thought we should go on the offensive and push for our own constitutional amendment. After all, if we pass a law, our enemies will just take it back. If we win in court, they'll pass a law against us. If we win in a state house, they'll circulate a petition to get the voters to change it.

That was my opinion until I spoke to Evan Wolfson, a brilliant New York lawyer who runs a national organization called Freedom To Marry. Wolfson convinced me that we don't need to spend our time fighting for a new and difficult-to-pass constitutional amendment. Instead, we need to get the courts to properly interpret the existing ones.

My initial argument was going to be that the Constitution doesn't protect sexual orientation. Wolfson convinced me that it does. Although the 14th Amendment says that no state shall "deny to any person within its jurisdiction the equal protection of the laws," most courts assume this provision was not intended to apply to sexual orientation.

That's because the 14th Amendment specifically mentions race as a protected category, I said. Actually, Wolfson told me, it doesn't. I had been relying on my rusty memory from law school, but when I pulled out the Constitution I realized that Wolfson was right. Although the courts have interpreted the 14th Amendment to apply primarily to race, the amendment itself actually never says that.

So why spend time on a new constitutional amendment? Amending the Constitution is not the end of the process toward social change. Think back to the 13th, 14th and 15th amendments after the Civil War, which failed to secure equal rights for African Americans. It took another 100 years before Congress finally passed specific laws outlawing racial discrimination in employment, housing and voting. It was the passage of those new laws, not just the existence of the Constitution, that helped to end legalized segregation in America.

The checkered history of America's race relations should provide a civics lesson to the LGBT community that change does not come easily, and that it doesn't happen overnight. African-American history, after all, is a story of a long tug-of-war from progress to backlash. We moved from the horrors of slavery to the hopefulness of reconstruction, from the promise of "40 acres and a mule" to the reality of Jim Crow segregation, from a Supreme Court that authorized discrimination in 1896 to a Supreme Court that outlawed discrimination in 1954.

The LGBT movement is going through a similar experience. "We're not immune from history," says Wolfson. We can't wave a magic wand to skip over all the legwork it takes. And we can't spend our time "focusing on this highly burdensome and practically unattainable mission of amending the Constitution as opposed to changing hearts and minds, working for nondiscrimination laws, electing the right people and doing the ground work," he said.

Wolfson is right. The only enduring way to protect our freedom and to secure our rights is to change our attitudes and to change the attitudes of the people around us. That's something you can't amend.