Change, Congress and LGBT Issues: Talking With Rep. Polis

In the history of the United States Congress, no openly gay man, prior to this past election, had ever won a seat in Congress while identifying publicly as such to his constituents.  Representatives Gerry Studds, Barney Frank, Steve Gunderson and Jim Kolbe all came out only after having won their seats without being out to the voters of their districts.

U.S. Rep. Jared Polis (D-CO)

Representative Tammy Baldwin was the first person, in 1998, to win election to Congress as openly lesbian, gay bisexual or transgender. It wasn’t until a decade later, when Jared Polis ran for Congress in Colorado’s Second District in 2008, that an openly gay man succeeded in winning a seat in Congress.

But, right from the start of an extended discussion on Saturday about LGBT issues, Polis noted: “We only have three openly gay members of Congress, [so] we rely on our straight allies and with them, we were able to pass the hate crimes bill in the House.”  He cited his reason for coming to Columbus — a fund-raiser for freshman Rep. Mary Jo Kilroy — as an example of one of those “critical” allies.

On the issues, Rep. Polis is, of course, very supportive of efforts at LGBT equality.  But Polis was both more open to blunt assessments and creative solutions than some politicians and more understanding of pragmatic considerations than many outside of the halls of Congress.  More than that, it was clear that Polis is of a new generation of LGBT politicians — unafraid of any closet and assuming that full equality — from immigration rights and equal benefits to employment nondiscrimination, military service and marriage equality — is the end result that is both just and expected.

Polis talked about the legislative agenda, with hopes for action this year on at least two pieces of legislation beyond the hate crimes bill.  He also said that he thought President Obama should have said, as President, that the Defense of Marriage Act is unconstitutional and should not have allowed his Justice Department to defend it in court.  He shared his view on what he called the “phase out” of Don’t Ask, Don’t Tell and spoke with great passion about the role he think he could play as an openly gay, Jewish member of the Board of Visitors of the Air Force Academy.

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Polis characterized the hate crimes bill, passed earlier this year by the House and this passed week as an amendment to the Defense reauthorization bill, as “the first real accomplishment in terms of an equality agenda,” saying “the clock is ticking” on the time to go until the measure is sent to President Obama for his signature.  In addition to the hate crimes legislation, Polis talked about both ENDA and the Domestic Partner Benefits and Obligations Act as bills that he expected to have come for a vote in the House this year.

“This fall, we plan to take up, and I hope we have the votes to get out of the House, ENDA, an inclusive version of ENDA that would prevent employment discrimination based on sexual orientation or gender identity,” Polis said.  “The federal benefits bill is the other piece of legislation that we plan to move this fall . . . but I don’t necessarily expect that they would be combined in the House at least into one piece of legislation. . . . “The timeframe is similar,” though.

This runs counter to the earlier reporting in Roll Call on a meeting between Polis and Reps. Frank (D-MA) and Baldwin (D-WI) and Speaker Pelosi and her leadership team, where a person who attended said that “[l]eaders may try to package workplace discrimination and federal health benefits together into one bill.”

Polis became excited to respond when asked about comments by Rep. Chaffetz (R-UT) that Baldwin’s Domestic Partner Benefits and Obligations Act would grant “special rights” to lesbian and gay couples.

“A very simple solution to the problem that he identified . . . would be to allow gay marriage and that would end that problem right there,” Polis said. “I would call on Rep. Chaffetz to be an outspoken supporter of gay marriage so we don’t have to address this issue of disparity in treatment and straight couples not having access to same-sex partner benefits unless they’re married.  That’s the easiest solution.”

Then, in a bit of a sign that the 34-year-old Polis might be coming from a different generation of LGBT political leaders, he expounded on how the forces on the Right might actually be the ones to send marriage to its “demise.”  Polis said:

I think that the opponents of marriage equality need to realize that they themselves are the ones undermining the institution of marriage because if you go down that road that [Rep.] Jason Chaffetz wants to go down all the sudden the government’s going to say, “Maybe we’ll do opposite-sex domestic partner benefits.”  Sooner or later we’re going to wind up like Europe, where no one gets married and like, 40% of heterosexuals enter domestic partnership agreements. So, unless we can pass marriage equality in this country, and includes gays and lesbians in marriage, I think it will be a death knell of marriage in this country.  And it will be representatives like Jason Chaffetz to blame, who will be at the graveside of marriage celebrating its demise.

But, assuming that national marriage equality isn’t going to happen in this Congress, Polis concurred with a point I made in my post about Chaffetz’s comments.  Of the disparity that would result from Baldwin’s bill only allowing for same-sex domestic partner benefits, and in light of the fact that several states now recognize same-sex marriages, Polis said:

Yeah, I think it’s reasonable to say that gays and lesbians would have to be married in those states to benefit from that if it’s available to them and if it’s denied to opposite-sex partners who aren’t married, I think it would be reasonable to say that if you are allowed to get married in a state that has it, then you have to be married to get that particular set of benefits.

To hear, Rep. Polis’s comments about disparities between opposite-sex and same-sex couples under the Domestic Partner Benefits and Obligations Act, download Polis-Sunday.

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Rep. Polis has spoken out against the brief defending the Defense of Marriage Act filed by the Justice Department in the Smelt case, asserting that Obama “could have chosen not to defend it.”  Asked about the historical precedent of the Justice Department defending laws except under certain, very rare circumstances that I and others have discussed at length, Polis responded:

There’s one actor in this case who makes the decision, and that would be the President of the United States, and the President of the United States — We all have the capacity to interpret the Constitution in our own way; sometimes we agree, sometimes we disagree with what different courts decide. The President, in his prerogative can decide how to direct the Attorney General to defend or not defend certain laws because he or she decides — feels they are not constitutional.

So, I would agree with you that the precedent is that usually laws are defended by the Attorney General, but there is absolutely no statutory requirement that the President has to defend a law that he or she feels is unconstitutional.

I don’t agree that this was an appropriate situation for the President to do so, but it was good to hear Polis’s reasoning:  He believes that President Obama — regardless of what any federal judges had previously ruled — should have told his Justice Department that he believes that law is unconstitutional and that the Attorney General was directed not to defend it.  It would have been an astounding move, representing an opinion that Obama has not previously expressed (that he believes DOMA is plainly unconstitutional), but it would have made not defending the law at least fit within the framework of cases the Justice Department has not defended in the past.

In the wake of the DOMA brief, though, the Administration has announced several efforts, including counting same-sex married couples in the Census and extending some benefits to federal employees with same-sex spouses.  Polis pointed out that “many of the efforts that were already under way before this hub-bub came out were nearing fruition at that point, so there have been several very positive steps, which I think would have happened independent of this whole blow-up.”   Regardless, though, he said, “certainly it showed our community is concerned with DOMA, specifically.”

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Regarding the military and Don’t Ask, Don’t Tell, Polis said he supports efforts at a moratorium on enforcement of the law until a repeal is finalized, such as that floated this past week by Sen. Kirsten Gillibrand and supported by Majority Leader Harry Reid.  Polis said, “I’d like to see us, in the very, very short-term, stop enforcing it so that we can re-examine and maybe end it, you know, a year later.”

Even in the absence of such a step, though, Polis said, “I’m confident that we’re building a political consensus to terminate that policy and make sure that we have a military that can recruit from the very best across our country, regardless of their sexual orientation.

On a related note, Speaker Pelosi named Polis this past week to the Board of Visitors of the Air Force Academy, which is located near Colorado Springs.  Polis shared that the first meeting of the board that he will be attending actually occurs next weekend.  Polis clearly is thrilled with the opportunity, both to put his educational knowledge to work but also to serve as a “voice of difference” in an institution — the military — that has had more than its share of problems with difference.  Polis said:

I think I can be of particular value to that institution as we phase out the Don’t Ask, Don’t Tell policy. . . . There will be issues that we need to deal with to make sure that LGBT cadets feel comfortable at the Air Force Academy and other educational institutions run by the military.  They’re, of course, currently closeted, which is a very difficult situation for them socially with their friends, because many of them had been out before, and sort-of live in a constant state of fear.

Also, though, Polis said he wants to ensure that the military is open — not only to LGBT cadets but atheist and religious cadets that don’t necessarily fit what he called the “culture” of the Air Force Academy.  He said:

There’s also a number of issues with religious discrimination at the Air Force Academy.  I happen to be Jewish myself, and I look forward to meeting with other cadets who are Jewish, who are atheist, or who are Catholic, who have felt at the short end of that stick as well. There have been many stories of a sort of evangelical bias in the school and culture of that institution.

All of these efforts, he noted were part of an effort to “make sure that our Air Force can recruit and retain the very best officers in the future.”

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PREVIOUSLY:

NEW TO CONGRESS, BUT NOT TO POLITICS: Law Dork talks To Rep. Jared Polis about who he is and what he’s doing in Congress.

COMING MONDAY:

MAKING A SPLASH, DISAGREEMENT WITHIN THE PARTY:  Law Dork asks Representative Polis about his efforts this week to oppose a tax in the House health care reform bill and the view of some liberals, specifically Markos Moulitsas of Daily Kos, that Polis “is shaping up to be a serious pain in the ass.“

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