Human Rights Campaign (HRC), the nation's leading gay-rights advocacy organization, has studied the records of the members of the 112th Congress and it finds that the House of Representatives has flipped from a pro- to anti-gay-rights majority. (HRC uses the acronym LGBT, which stands for Lesbian, Gay, Bisexual, and Transgender.)
As NEWSWEEK reported in the wake of the 111th Congress's passing a repeal of "don't ask, don't tell," gay advocates are still seeking federal legislation on a number of other fronts. Unlike an increasing number of states and private employers, the federal government does not provide spousal benefits to the partners of its gay employees. There is no federal law banning private employers or places of public accommodation from discriminating on the basis of sexual orientation or gender identity. The Defense of Marriage Act (DOMA) defines marriage as between a man and a woman for all federal purposes.
While it was widely assumed in the wake of the Republicans' taking control of the House of Representatives in the midterms that the new Congress would be less supportive of gay rights, the HRC report actually sifts through the members and does the math. While Republicans tend to oppose civil rights for gays and lesbians, and Democrats tend to support them, there is often some variation within a large legislative body. As the debate about abortion services in health-care reform demonstrated, for example, a Democratic majority is not always a pro-abortion-rights majority.
But this new Republican majority is definitely anti–gay rights, according to HRC. The report ranks 225 members of the new House as "anti-LGBT," up 53 from 172 in the 111th House. The 112th House has 167 "pro-LGBT" members, 29 fewer than the 196 last year. It found 43 House members now have a "mixed record," down 22 from the 65 in the 111th. The fact that the last Congress had more members with a mixed record reflects the fact that Democrats tend to be less resolute in their support for gay rights than Republicans are in their opposition to them.
To wit, in the Senate, HRC finds that the 53–47 Democratic majority does not translate into a pro-gay-rights majority but rather an even 40–40 split, with 20 senators having a mixed record. Again, the anti-gay-rights gains are bigger than the pro-gay-rights losses because the last Senate also had more members with a mixed record.
The overall change—that gay-rights advocates have lost their supportive majority—is the same in both houses of Congress. What does that mean for gay rights? While HRC pledges to continue pushing for the Employment Non-Discrimination Act, which would ban workplace discrimination on the basis of sexual orientation or gender identity, and repeal of DOMA, neither will happen in this Congress. Realistically, HRC says it will focus at the federal level on anti-bullying measures and domestic-partner benefits for federal employees.
But, for major advances in gay rights, advocates will be looking to the states. A raft of socially liberal states —Hawaii, New York, Rhode Island, Maryland, and Delaware—may legalize gay marriage or civil unions this year. Meanwhile, New Hampshire, with its libertarian political culture, poses an interesting challenge. Socially liberal but fiscally conservative, New Hampshire currently recognizes gay marriages, but the Republican Party just won supermajorities in both houses of the state legislature. Will it repeal gay marriage? If so, it will challenge the axiom that civil rights always march forward over time.