Kevin Cathcart - part 1 - 40 Years Since Stonewall and 7 Weeks Since Iowa

Though the actual decision was still two days off when Kevin Cathcart spoke at the Guthrie Theater’s Dowling Studio black box space as one of the events in the Guthrie’s celebration of Tony Kushner, his prediction was correct. He predicted that the California Supreme Court would uphold the vote on Proposition 8, amending the state’s constitution to bar gay marriage. But he also correctly predicted that the court would uphold the validity of the marriages that took place in the window of time that gay marriage was considered legal prior to the election where Prop. 8 passed.

Kevin Cathcart, the executive director of Lambda Legal, is “a leading strategist and spokesperson in the movement to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and people with HIV.” Lambda Legal was lead counsel in the 2003 Supreme Court case that struck down Texas’ “Homosexual Conduct” law and every law like it in the nation. The plaintiffs in the case had been arrested while having consensual sex in their own home. The title of his overview of the state of the LGBT civil rights movement when he spoke at the Guthrie was entitled “40 Years Since Stonewall and 7 Weeks Since Iowa.” Throughout the evening, Cathcart was just as passionate as he was articulate about his subject. His healthy sense of humor also helped keep things lively.

“The Guthrie has a certain mythological status in New York, but I’d never been here before,” Cathcart remarked in opening. He was glad to be here because “Tony Kushner is a strong, progressive, out, political gay voice and there are far too few of those.” He said he’d be keeping his overview short so we’d have more time for what he called “questions and discussion” (rather than answers, since definitive answers these days are hard to come by). Last Friday marked the seven week anniversary of the Iowa court decision legalizing gay marriage. Cathcart said that the Iowa decision “came as a surprise to those of us on the coasts.” He imagined it might have surprised the people of Minnesota as well, that Iowa “pulled so far ahead of you. Work hard, you could still catch up,” he jokingly chided. Then the Vermont legislature overrode the veto of their governor to legalize gay marriage in their state. Then the Maine legislature also legalized same-sex marriage.

The next states in line for a breakthrough on gay marriage may be New Hampshire and New York. New Hampshire’s most recent attempt in the legislature failed by only two votes, so the bill goes back to committee. It might come back in two weeks, it might not be back until the next legislative session. New York is next most likely, but probably not this legislative session. On the national level, Washington, D.C. efforts focus on passing Hate Crimes legislation, as well as eliminating the “Don’t Ask, Don’t Tell” policy barring gays & lesbians from serving openly in the military, passing the long-awaited (still languishing) Employment Non-Discrimination Act (ENDA), and attempts to undo the Defense of Marriage Act (DOMA).

It’s hard to conceive just how invisible gays and lesbians were in 1969, and how few rights they had. There was no real community in the sense we know it today. The gay civil rights movement owes much to the lessons learned in the African-American civil rights movement, the women’s movement, and the anti-war movement which all came before. The gay civil rights movement went from grassroots beginnings at the Stonewall riots to “quickly establishing its own institutions. Lambda Legal is 36 years old this year,” Cathcart noted. The surprise and anger that greeted the passage of Proposition 8 in the last election, amending the state constitution to bar gay marriage, has spawned a new grassroots movement which some have dubbed “Stonewall 2.0.” How the California fight continues and evolves will doubtless be a combination of institutional and grassroots work going forward.

People sometimes ask if federal protections will really make that big a difference. Cathcart says “it depends on where you live. Places like New York, Minnesota and California have statewide civil rights protections in place. For those who live in bubbles like that, federal protection won’t make much of a difference.” But Cathcart pointed out that you could drive a car along the southern coast of the country “from Florida, all the way to California,” even zig-zagging up to catch a few more of the southern states along the way, and you won’t pass through a single state that has any civil rights protections for their LGBT citizens. For all those states, and all those people, federal protections will make all the difference in giving them the most basic equal rights.

The California Supreme Court just upheld the vote on Proposition 8. But they also left the 18,000 marriages, which took place during the window that gay marriage was legal, standing as well. This leaves an island of 18,000 gay couples in limbo. Their marriages are still valid, but no one else can join them, until the constitution is rewritten to allow for gay marriage again. In the meantime, how do the state and employers deal with these special couples? Cathcart sees “an ugly, long, expensive and insulting referendum battle ahead” which might “presage the end of civil rights under the California state constitution. Because if 50 percent plus one can take away the rights of a whole group of people…” It’s been said that if you have a million dollars to collect signatures, you can get anything on the California ballot. Ballots are coming up again in 2010 and 2012. They could be flipping the constitution and laws of the state every two years, depending on who has the most money or the best voter turnout for their side of the cause.

The progress on gay marriage in Iowa, Vermont and Maine since Prop. 8 has been wonderful, but they’re not looked on as leadership in the same way California was. Cathcart doesn’t think we’re at the tipping point yet, but we’re near it. “Just not as near as we dared hope.” Looking at the poll and voters, young people are in favor of LGBT civil rights, particularly marriage rights. There’s been a lot of finger-pointing at various groups in the aftermath of California’s vote on Proposition 8, but the truth is that “if only people under 60 had voted, we would have had a landslide victory. If only people under 40 had voted, the margin of victory would have been even bigger.”

Cathcart thought the Twin Cities was a good place to celebrate Kushner, and have him come and speak, because Minnesota has “a rich history” of progress on gay civil rights issues.

Baker v. Nelson was the first gay marriage court case back in 1971, and it made it from its start in Minnesota all the way to the United States Supreme Court. The case being turned back at the federal level established the precedent that made gay marriage a state issue. Jack Baker also founded the first gay student group in America (pre-Stonewall) and was the first openly gay person elected the student body president of a major university. In addition to being the first gay couple to apply for a marriage license, Baker and his partner were the first to establish a legal relationship to one another via adult adoption. Their gay marriage case came twenty years before the case in Hawaii that kicked off this recent phase of the fight.

In 1984, Sharon Kowalski was critically injured in car accident. Sharon’s family shut out her partner of four years, Karen Thompson, from all medical decisions, denying her even the right to visit. Karen fought for seven years to win guardianship of the woman she loved and finally succeeded when the Minnesota Court of Appeals ruled in her favor.

Minnesota also has a history of out gay elected officials, including the late Allan Spear – one of the first – and Karen Clark – currently the longest serving out gay state official in the country. A strong, statewide legal organization is also important, and Minnesota has that in the political group Outfront Minnesota (outfront.org). They just had their big lobbying day last month, and as Cathcart said, “there’s a great deal of work to be done.”

It’s sometimes hard to imagine what gay life was like forty years ago. Cathcart noted that a lot of people in the current gay community weren’t even born yet, and those that were, either their memories are getting fuzzy, or it may be too painful to remember. There were no civil rights, no civil unions or domestic partnerships. Sodomy laws were still on the books in most states. “Culturally, there was no space to be openly gay or lesbian,” Cathcart said. “It was a career killer.” Without the changes over the last forty years, Cathcart said, “I wouldn’t be standing here in front of you speaking like this. There probably would not be a Tony Kushner Celebration at the Guthrie.” Now we have Gay/Straight Alliances in high schools, second parent adoptions, along with civil unions and the possibility of gay marriage. “There’s legal change, and there’s cultural change,” said Cathcart. “It’s hard to know sometimes which leads and which follows, and what’s more important. Right now, cultural change is further along, and legal change is struggling to catch up. But there are glass ceilings on both ends of the spectrum, and a great deal of space between.” For example, Cathcart noted that despite some potential Supreme Court nominees being lesbian, he didn’t expect to hear their names called, not for this opening. And despite all the excitement, the country apparently isn’t yet ready for an extremely (but not out) gay American Idol.

Cathcart offered up five examples of areas where there is work yet to be done:

1. Marriage

Gay marriage is only currently legal in three stages – Massachusetts, Connecticut, and Iowa. Vermont joins the list September 1, 2009. Maine joins the list January 1, 2010, but there’s a referendum on the ballot before that, so it’s not guaranteed to happen. That leaves 45 states to go, 30 of which have amendments barring gay marriage added to their state constitutions. That’s a lot of work to undo, particularly with many hostile legislatures, and voter education having a long way to go in garnering enough support. Cathcart noted, “The Supreme Court’s not big on change. They’re not going to save us. They’re more comfortable with clean-up actions.” When 37 states had struck down their sodomy laws and only 13 states still had them on the books, the Supreme Court felt they could weigh in to eliminate the remaining holdouts. With gay marriage at 5 states vs. 45 states, the Supreme Court’s not likely to step in. A lot more work needs to be done on the state level first. Some cases are working their way up the line toward the Supreme Court, but we don’t want the wrong case to go up, or the right one to go up too soon. The Supreme Court doesn’t like revisiting issues frequently. We can’t lose big too early.

2. Don’t Ask, Don’t Tell

150 gay and lesbian members of the military have been discharged under the “Don’t Ask, Don’t Tell” policy since President Obama took office. That’s more than one a day. And the White House remains silent. Iraq war veterans, top graduates of the academies, much-needed Arabic translators are all being booted out. A reporter recently asked if this was part of the administration’s national security strategy, or working against it. Voices as varied as Frank Rich in the New York Times and Jon Stewart on the Daily Show are speaking out in recent weeks, but we need leadership from the President on the issue, and soon.

3. HIV/AIDS

HIV and AIDS are spreading again, especially in the African-American and gay male communities, but the problem is largely unseen by the general public. The gay civil rights movement and the HIV movement aren’t as closely tied together as they once were, and this also exacerbates the problem.

4. Gay youth

Student activism used to be most pronounced at the college level. Now it’s in the high schools. Litigation to allow Gay/Straight Alliances (GSAs) in high schools is the new front in this regard. GSAs impact all the students, not just the gay students who join (or might be afraid to join). GSAs being part of the general background noise of high school life, like the French Club or the Chess Club, is helping turn out young voters with a more relaxed attitude about gay rights. (“Why are we fighting about this?”) But as kids come out at younger and younger ages, the problem of teenage suicide increases as well. This spring, in Massachusetts and Georgia, two 11-year-old boys committed suicide because of anti-gay bullying and harassment. Whether they were actually gay or just perceived to be gay, the boys couldn’t see any way out. The thought of continuing through junior high and high school like this was unbearable to them.

5. Partner’s rights

Just last year, a lawsuit was filed against Jackson Memorial Hospital in Miami, FL. As a woman lay dying of an aneurysm, her lesbian partner of 18 years and their children were denied the right to visit her. They were kept waiting for eight hours, with no information. When the dying woman’s sister arrived, she was ushered right in to see her. But the woman’s family was denied the right to even say goodbye. All this, despite the fact that the women had done everything they’d been advised to do to protect their rights – living wills, health care proxies naming the other partner as the one with the right to make medical decisions on their behalf in case of emergency. But the relationship was still not recognized. They were even denied the death certificate. This, 18 years after the decision in the Kowalski case.

In his introduction to “Caroline, or Change,” Tony Kushner says that “Sorrow, anger and grief, our tragedies, shouldn’t blind us to our victories.” Cathcart argued that, reversing that sentiment for a moment, “we often let our victories blind us to our tragedies. Forty years is a long time to only be as far along as we are today.” A lot of people already think that gays have the right to marry all over the country, that “Don’t Ask, Don’t Tell” as already been struck down, that the HIV epidemic is under control. If all those things were really true, “it’d be a much better world than the one we live in.” That kind of thinking may “ease the pain or guilt about the work yet undone.” California and Prop. 8 were a wake-up call. “We probably won’t realize what the actual tipping point was until years later, but it’s coming. Gay men and lesbians are leading lives unimaginable forty years ago, even five years ago. Six months ago, if you’d told me there would be hundreds of gay couples getting married in Iowa, I probably wouldn’t have believed you.”

Cathcart turned again to the words of Tony Kushner’s introduction to “Caroline, or Change” – “If that epic struggle did not accomplish everything it intended, it breached the wall of oppression, and through that breach, the future is pouring in.” Concluding his comments before the discussion part of the evening kicked in, Cathcart said, “Stay tuned, but stay, or get, involved. It will happen much sooner, do far more good for far more people. It’s better if more people are involved in the conversation. There is so much opportunity – in D.C., the business community, state capitols – we need more people in the game. We could speed it up a great deal.”