Argument

Rainbow Coalition

A gay rights revolution is sweeping across the Americas. It's time for Washington to catch up.

In his second inaugural address, U.S. President Barack Obama pledged to make the United States a beacon for the world by recommitting the country to its ideals of equality. He also made history by saying those ideals demand marriage rights for same-sex couples just as they have demanded equal citizenship for women and African Americans.

But even if the Supreme Court or lawmakers soon agree with Obama's words -- "for if we are truly created equal, then surely the love we commit to one another must be equal as well" -- the United States will be a latecomer to advancing marriage rights. The world's leaders on this issue are not just from places Americans might expect -- Western Europe or Canada -- but many countries in our own hemisphere; places not usually known for progressivism on social issues. While Obama was undergoing his "evolution" on marriage rights, there has been a gay rights revolution that has stretched from Tierra del Fuego to the Rio Grande.

One dramatic illustration: When a broad coalition of human-rights activists brought a gay rights charter to the United Nations in 2007, the push was led not by the likes of Sweden or the Netherlands, but by Argentina, Uruguay, and Brazil. Same-sex marriage was not legal in any of these countries then, but a lot has changed in the years since.

In 2010, Argentina's congress approved an "Equal Marriage" law, the same year same-sex marriage also became legal in Mexico City. A year later, Brazil's supreme court ruled same-sex couples were entitled to partnership rights through a kind of domestic partnership status, and some states -- including the largest, São Paulo -- are now performing full marriages for same-sex couples. The lower house of Uruguay's legislature voted in December 2012 to legalize same-sex marriage nationwide, and its senate is widely expected to pass the law when it votes in April.

There were also several LGBT rights victories on issues beyond marriage. Though Bolivia's 2009 constitution bans same-sex marriage, it also bans discrimination on the basis of sexual orientation and gender identity. Chile, one of South America's most conservative countries, passed a non-discrimination bill in 2012 and elected its first openly gay politician. And the government of Argentine President Cristina Fernández de Kirchner built on its passage of the marriage law to enact the world's broadest legal protections for transgender people last year.

This is not to say that all of Latin America is a gay-rights paradise. Laws throughout Central America, where there is an especially strong evangelical movement, remain particularly hostile, as they do in Peru, where the mayor of Lima is currently facing a recall in part because of her attempts to pass an ordinance banning discrimination on the basis of sexual orientation. And many gay people remain closeted or face serious threats of hate crimes even in countries where the laws are very progressive -- in many places, the right to be safe is far more important than the right to marry.

But the rapid advance of same-sex partnership rights is striking, especially considering that it was only a few years ago that these governments were fighting with the Catholic Church to legalize divorce.

The specific reasons these gains have been possible differ in each country. But a major factor in all of them is that LGBT activists have managed to link their cause to broader efforts to shore up human-rights protections in countries still coping with the legacies of anti-democratic regimes that fell in the late 20th century. Additionally, the courts have embraced their role as defenders of human rights and measure themselves against international standards.

Take the case of Colombia. In 2011, the Constitutional Court ruled that same-sex couples must be considered a "family" under the law. It ordered the congress to pass a law equalizing the rights of same-sex couples within two years. As a backstop against congressional inaction, the ruling also said that notaries and judges could automatically begin solemnizing same-sex unions by June 20, 2013, with or without Congress's blessing.

This ruling was not perfect in the eyes of Colombian LGBT advocates -- the court stopped short of saying these protections must be called "marriage," leaving that up to the legislature to decide. But it spelled out that fundamental legal protections are at stake and put momentum on the side of marriage advocates.

Colombian law demands this level of protection be extended to same-sex couples, the court wrote in its decision, to protect gays and lesbians' fundamental rights "to personal development, autonomy and self-determination, [and] equality."

The ruling came despite strong pressure from the Catholic Church, which is continuing to lobby against same-sex marriage in the Colombian congress. A bill to legalize same-sex marriage cleared a preliminary vote in the Senate in December, but even the bill's sponsor, Senator Armando Benedetti, is pessimistic about its chances in the house of representatives.

 "In the House we confront a problem," Benedetti told me in a November interview in his Bogotá office. "That is the [influence of] the Catholic religion, which always puts its principles above the rights of minorities."

That's why the court is so important, he continued, expressing confidence that the court would clarify its support for same-sex marriages once they begin being performed in June of 2013. "The Constitutional Court, if we're going to speak very seriously, has always been in favor of the disadvantaged, of minorities, of the poor," said Benedetti.

Latin America's marriage movement has been helped by the fact that most countries' courts take international jurisprudence far more seriously than do courts in the United States. Human rights law takes an especially international perspective, since almost every country in Latin America is under the jurisdiction of two human rights bodies within the Organization of American States, the Inter-American Commission on Human Rights, charged with investigating violations of the American Convention on Human Rights, and the Inter-American Court of Human Rights, which adjudicates violations on the recommendation of the Commission. Though the United States, Canada, and a handful of Caribbean nations do not recognize the court's jurisdiction, most of Latin America does.

LGBT rights have been a special priority for the Inter-American Commission since 2011, when it established a special unit dedicated to LGBT rights. Around 50 complaints of violations of these rights are now pending before the commission, according to Victor Madrigal-Borloz, who leads the team responsible for reviewing claims of human rights violations and is the chief technical advisor to the LGBT rights unit. Once the commission begins advancing these cases through the legal process, we could see the pace of change in Latin America accelerate even further.

That could be especially true on marriage rights. Three Chilean couples filed a complaint with the commission in September 2012 after losing a legal battle for recognition in their country's courts. Activists in Costa Rica have also announced their intention to seek help from tribunal after a domestic partnership law died in the country's legislature late last year. A Paraguayan couple who married in Argentina also plan to take their battle for recognition to the Inter-American Court. If these petitions are successful, it could potentially mean the undoing of marriage bans in even the most conservative countries in Latin America. But the court is already proving to be a force for marriage rights even before formally taking up the question.

It handed down its first LGBT rights decision in February 2012 in a case known as Karen Atala y Niñas v. Chile. The case was brought by a lesbian mother who lost custody of her children to her ex-husband because of her sexual orientation. The court's ruling was sweeping, saying for the first time that the American Convention on Human Rights "prohibits ... any rule, act, or discriminatory practice based on sexual orientation."

The significance for marriage rights was tested almost immediately in Mexico. Most Mexican states still refuse to perform same-sex marriages, even though they have been legal in Mexico City since 2010 and the country's supreme court has ruled that these marriages are valid nationwide. Three Oaxacan couples had filed a long-shot challenge to their state's ban on same-sex marriages shortly before the Atala decision was handed down, represented by a law student named Alex Alí Méndez Díaz. As their case headed to Mexico's supreme court, the Atala decision provided an additional powerful precedent on which to make their case.

On Dec. 5, Mexico's high court sided with the three couples and said that marriage could not be restricted to heterosexual couples. Technicalities of Mexico's legal system mean that more lawsuits are still required before same-sex couples can easily marry in every state, but this ruling means that it will soon be possible.

This year, the U.S. Supreme Court is weighing exactly the same questions that Mexico's court has already resolved. But the U.S. justice system is fiercely resistant to considering legal decisions from abroad.

When the justices take up the gay marriage cases in March, there will be more at stake than the status of American gay and lesbian couples. They will be deciding whether the United States will fall behind as its neighbors establish a new standard of human rights, or whether it will join a revolution that is well underway.

Brendan Smialowski/Getty Images

Argument

You Can't Change the Climate from Inside Washington

If Obama wants to make good on his inaugural promise, he’ll need to remember the lessons he learned as a community organizer.

"We will respond to the threat of climate change, knowing that failure to do so would betray our children and future generations.... Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires, and crippling drought, and more powerful storms." These words in Barack Obama's second inaugural address thrilled many who have heretofore been peeved (if not outraged) at the president's silence on what they consider the overriding challenge of our time: the fight to regulate greenhouse gas emissions and prod the United States into fundamentally new modes of energy use and production. "Speech Gives Climate Goals Center Stage" is how the nation's leading liberal newspaper, the New York Times, headlined its front-page, above-the-fold story. A more cynical note was sounded by the Wall Street Journal in its page 7 offering, "Rhetoric Heats Up on Climate Change."

What does Obama's new willingness to speak up about climate change really mean for the next two to four years? It does not mean that "cap-and-trade" legislation, or any other variant of carbon taxes or capping, is imminent. But it does suggest that Obama understands the stakes and wants to make a real impact. For that, he should be applauded: A president who speaks regularly about the dangers of climate change and the human causes contributing to global warming can inspire citizens, help people connect dots they would not otherwise connect, and could set the stage for a widely supported legislative push after 2014 or -- more likely -- 2016.

That said, if Obama and his allies in the environmental movement wish to pass meaningful legislation that might stand a chance of delivering on his slightly megalomaniacal claim during the 2008 campaign that the Obama presidency would mark "the moment when the rise of the oceans began to slow and our planet began to heal," then they must learn from the mistakes of the past. Most of the action on climate-change legislation under Obama has centered in the effort to pass a cap-and-trade system in a drive driven by an alliance of big professional evironmental organizations and leading corporations. Neither the first-term Obama nor environmentalists pushing for comprehensive legislation have paid any heed to the president's heritage as a grassroots organizer. Instead, all the focus has been on bargains with polluting corporations and attempts to woo a few votes from congressional Republicans -- a strategy that badly failed in the Senate in 2010 when no Republicans were willing to vote for cap and trade, no matter how many concessions were offered.

The inside game has failed in part because climate reformers have not invested in building an outside game, a nationwide network of groups that reaches into localities and states. In my recently issued report, "Naming the Problem: What It Will Take to Counter Extremism and Engage Americans in the Fight Against Global Warming," I argue that opponents of government action to limit carbon emissions have successfully spread public doubts and mobilized to pressure legislators, especially Republicans. Today, according to a recently issued CNN poll, fewer than half of Americans believe that global warming is a human-caused problem, a level of belief lower than in 2007. Those who either deny global warming or do not think it has human roots or solutions are largely self-described conservatives, who make up about half of the GOP's voting base and represent some of its most determined elite advocates and funders. Republican opposition to regulating greenhouse gas emissions is entrenched from above and below -- and many Democrats in Congress are irresolute on the issue if they come from states with powerful energy producers or electricity generated from coal-fired plants.

The congressional equation can only change if proponents of carbon limits stop trying to arrange secretive insider bargains and, instead, put forward a transparent proposal such as a carbon tax with revenues returned directly to citizens in annual dividend checks. But proposing such a goal would not be enough; nor would a lot of White House speeches. Several years of popular organizing would be needed to build alliances stretching into most states and congressional districts. Leaders and citizen activists would have to get involved. And not just the usual suspects in the environmental movement. A push for carbon taxes and dividends would need support from unions, women's groups, and community associations.

The president will also need to mobilize his own grassroots army. The old Obama had the right idea. Early on, he hinted at support for some kind of carbon-capping system with dividends for regular citizens, but he stood back once the cap-and-trade push started in Congress. America's first black president has repeatedly been linked to the legacies of Martin Luther King, but on the issue of climate change, Obama has failed to incorporate the lessons of King's civil rights movement. If combating climate change is a decisive challenge -- just as civil rights were in the 1960s -- it is unforgivable that the Democratic Party and its activist allies have failed to organize on the issue and create the kind of widespread movement that can not only move public opinion but also deliver votes at the ballot box and pressure from the districts on Congress. During this last election campaign, Obama deployed one of the most formidable grassroots organizations in history. That organization -- formerly Obama for America has now become Organizing for Action. It is high time it to be put it to good use.

A buildup to a big new legislative battle needs to start now, but the legislation itself is not going to pass right away. Many environmentalists do not understand this. The planet is in crisis, they say, and so obviously "we" must act at once, across partisan lines. This is a pretty vision, but alas, the oppositional leverage and mindset of today's Republican Party cannot be wished away. The House of Representatives remains under GOP control, with a major bloc of ultra-conservatives who include deniers of climate science and fierce opponents of the sorts of taxes and regulations that would have to be included in any legislation to set economy-wide caps on greenhouse gas emissions. The Obama White House has never been willing to write and push legislation it knows cannot pass -- and there's no sign that will change in 2013 or 2014. Any immediate legislative steps will be incremental, pushed forward in the Senate rather than directly from the Oval Office. Already, credits for wind-power production have been renewed in the "fiscal cliff" deal, and more incentives for the production and use of green energy will come.  Maybe tax subsidies for dirty energy producers can be trimmed or eliminated.

Of course, presidents can get around Congress by issuing executive directives and supporting new regulations. Most professional environmentalists have an overriding faith in regulatory solutions and do not understand that regulation alone will soon falter unless it is sustained by congressional majorities. Nevertheless, right now, big environmental groups are poised to unleash an unremitting stream of reports, regulatory demands, and media-oriented protests. The president will be expected to nominate a strong new administrator to head the Environmental Protection Agency, and environmentalists are already proposing -- indeed demanding -- that the White House give full backing to the EPA's use of the Clean Air Act to regulate coal-fired plants and set new energy standards in many spheres. The Keystone XL pipeline will also be a flashpoint. Now that the governor of Nebraska has signed off on a new route for the pipeline, the decision to approve or disapprove this project to maximize production from the Canadian tar sands has arrived on Obama's doorstep. Environmental activists will not forgive the president if his administration gives Keystone the go-ahead. 

My own assessment of what actually will happen in U.S. global warming politics over the next several years is, regretfully, closer to the Wall Street Journal's cynicism than the New York Times' celebratory optimism. Big, professionally run environmental organizations feel comfortable pushing for regulatory solutions in Washington. They do not feel comfortable reaching out to build broad citizens' coalitions across the country. Major groups like the Sierra Club and the Natural Resources Defense Council are likely to go all-in on demands for EPA regulations and may not also invest in building broader coalitions to lay the basis, patiently, for a new congressional push some years from now. But if EPA regulations go too far, too fast, backlashes across the country could contribute to what may happen anyway: Democratic loss of control of the Senate in 2014. Many Democratic voters tend to stay home in midterm elections, and many key seats currently held by Democrats are up for grabs.

Most likely, America will not see new carbon regulating legislation during Obama's time in office. Various bills may be introduced, but they will have no chance to reach the president's desk unless Democrats retake all of Congress in 2014. Yet this remains a crucial period for choosing the right legislative goals and organizing strategies to prepare for the next opening.

Until now, political efforts on behalf of carbon-capping legislation have been run by the business-environmentalist partnership spearheaded by the Environmental Defense Fund. Using insider bargains, the EDF and its allies failed to get cap and trade legislation through Congress in 2009 and 2010, indeed they did not even come as close as they want us to think they did. Yet all signs indicate that the EDF and its allies remain determined to try the same insider strategy again -- that they are laying in wait to push for the same cap and trade approach that spends money on industrial subsidies, not on dividends to citizens. How do I know? Well, as EDF publicist Eric Pooley recently said to Guardian reporter Suzanne Goldenberg, "Just because you lose the game doesn't mean the game plan was wrong. Maybe the execution was wrong."

Now, I happen to be an avid and very well informed fan of the National Football League -- and I can confidently inform Mr. Pooley, EDF, and others that excellent NFL teams never repeat the same game plan! Merely tweaking and repeating game plans is for losers (I could name examples, but I won't). The best teams, the successful ones, ruthlessly ferret out and learn from their own mistakes. They don't make up comforting fairy stories. Every week, they make corrections and devise a new game plan specifically tailored to exploit the weaknesses of their upcoming opponent. What is more, from one year to the next, successful NFL organizations make fundamental changes in the composition and strategies of their entire team.

U.S. groups that want to organize and strategize for the next chance to get Congress to legislate a carbon tax or economy-wide carbon caps stand to learn a lot from the NFL. But the lessons are the opposite of what groups like the EDF seem to have taken away from the cap-and-trade debacle of 2009-10. Repeating the same opaque, insider game plan will not work -- because it is ill suited to fielding a big, strong team of allies equipped to divide and conquer the well-heeled and entrenched opponents of climate-change legislation. President Obama, of all people, should know this. After all, wasn't he the guy who said you can't change Washington from the inside?

JEWEL SAMAD/AFP/Getty Images