A Climate of Uncertainty for Gay Rights

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There have been gains on issues large and small, from hospital visitation rights for same-sex couples to the passage of hate-crimes legislation and congressional votes that could open the door to repeal of the military's "don't ask, don't tell" ban on openly gay soldiers. Two of the country's top legal minds, Ted Olson and David Boies, have just finished closing arguments in a highly publicized trial seeking to overturn California's ban on gay marriage, and the State Department just made it possible for transgendered citizens to have passports reflecting their sexual identity without undergoing gender-reassignment surgery. This weekend, President Barack Obama acknowledged gay parents in his Father's Day address. On the face of it, gay-rights activists are making lots of progress.

But here's the catch—the bigger issues are consistently on the verge of happening, but never seem to be a done deal. There is a divide between Washington insiders who understand that government is painfully slow to move, on any issue, and a newly activated core of gay activists who want immediate change. "Don't ask, don't tell" hasn't been repealed yet, the gay-marriage trial could take years to reach the Supreme Court, and the federal Defense of Marriage Act continues to block gay couples from countless legal benefits, including—in a bizarre twist—the right to a swift and affordable divorce.

Paul Yandura, a Democratic strategist and gay-rights organizer, gives one example of the disconnect. "My trainer, my aunt—everyone called to congratulate me on the end of "don't ask, don't tell." I had to explain to them that the law is still on the books and now it's completely open-ended as to when it might get repealed. They were appalled." Even conservatives like Peter Sprigg of the Family Research Council have readily admitted in conversations with NEWSWEEK that smaller gains, such as hospital visitation rights, help conservatives fight larger ones like the legalization of gay marriage. "The next time I debate someone on TV about same-sex marriage, that's exactly what I'll tell them—I'll say, 'The president already took care of that, didn't he?' "

If you look at timelines detailing the milestones over the decades in the gay-rights movement, you'll see more and more markers after 2008, with the gay-marriage movement gaining more states and President Obama allowing same-sex partners of federal employees to receive certain benefits. Yet sometimes being so close to success, when it's not fully achieved, is confusing, and upsetting.

Cathy Renna, an LGBT media adviser, says gay advocates feel close to the administration, but have serious doubts about commitment levels. "It's like we're dating but we're not married yet." She says many people think that gays have the right to marry and, for example, that gays are protected from discrimination in the workplace despite the fact that the Employment Non-Discrimination Act has yet to come to a vote on the Hill, prompting civil-disobedience protests by the newly formed GetEqual group. Polling has shown that 61 percent of heterosexual Americans don't realize that federal law does not provide protections to employees based on sexual orientation. "The amount of progress we have made culturally has vastly surpassed where we're at on the policy level. And that can be aggravating."

The gay-marriage trial is another case in point. While it has put the media spotlight on gay marriage, a final verdict is far off. Lawyer Ted Olson has explained that it could take a year in the appeals process before even coming close to the Supreme Court for a final resolution. "Then with the Supreme Court, it could take six to eight months to get it on the docket," Olson recently told reporters. "And I'm being optimistic here." In addition, no one is clear how far-reaching the case could eventually be. "The scope of the case once it reaches the Supreme Court is up to the court," says Olson.

Still, Fred Sainz, a spokesperson for the D.C.-based Human Rights Campaign, says that attention must be paid to the fact that significant strides are being made. "We have largely been in the wilderness the past 40 years since Stonewall. To see this much progress in one and half years makes your head spin." But he adds that states are moving faster than the federal government, and that the process of change can be excruciating. "Change often comes last to Washington, D.C. It's a lagging indicator of social justice where it should be a leading indicator."