Gay but Equal? - By Mary Francis Barry

As the country prepares to enter the Obama era, anxiety over the legal status and rights of Gays and Lesbians is growing. Barack Obama’s invitation to the Rev. Rick Warren, an evangelical pastor who opposes same-sex marriage, to give the invocation at his inauguration comes just as the hit movie “Milk” reminds us of the Gay rights activism of the 1970s. Supporters of Gay rights wonder if the California Supreme Court might soon confirm the legitimacy of Proposition 8, passed by state voters in November, which declares same-sex marriage illegal — leaving them no alternative but to take to the streets.

To help resolve the issue of Gay rights, President-elect Obama should abolish the now moribund Commission on Civil Rights and replace it with a new commission that would address the rights of many groups, including Gays. The fault lines beneath the debate over Gay rights are jagged and deep. Federal Social Security and tax benefits from marriage that straight people take for granted are denied to most Gays in committed relationships. And because Congress has failed to enact a federal employment nondiscrimination act, bias against Gays in the workplace remains a constant threat.

Gays are at risk under the military’s “don’t ask, don’t tell” policy. And people who are only assumed to be homosexual have been subject to hate crimes. José and Romel Sucuzhañay, two brothers, were attacked in New York City last month by men yelling anti-Gay and anti-Latino epithets. José Sucuzhañay died from being beaten with a bottle and a baseball bat. Yet the effort in Congress to enact a law that would increase the punishment for hate crimes against Gays and Lesbians is going nowhere.

Only two states, Massachusetts and Connecticut, permit Gay marriage. New York acknowledges marriages from those states and from other countries, despite the federal Defense of Marriage Act of 1996, which was meant to allow other states not to recognize Gay marriages performed elsewhere. Vermont, New Jersey and New Hampshire permit civil unions, which provide Gay partners the rights, protections and responsibilities of marriage. On the other hand, a referendum that just passed in Arkansas goes beyond banning Gay marriage to prohibit the adoption of children by unmarried couples. Mississippi, Florida and Utah have similar bans. And many Americans believe their religion forbids Gay marriage or even civil unions.

In the 1950s, race relations in America generated escalating tension and strife. As Secretary of State John Foster Dulles told President Dwight Eisenhower, other nations vilified us for our treatment of “negroes” as less-than-first-class citizens. It was in this context that Congress, in 1957, granted Eisenhower’s request for an independent civil rights commission to “put the facts on top of the table.” The commission conducted interviews and public hearings, prepared detailed reports and recommended new protections that would ultimately be passed in the form of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. These laws embodied the goals of the protestors who marched, went to jail and died to end racial discrimination.

The commission became what the Rev. Theodore Hesburgh, who was the chairman from 1969 to 1972, called the “conscience of the government” on civil rights issues.

There is no need to analogize the battle for the rights of Gay and Lesbian people to the struggle of African Americans to overcome slavery, Jim Crow and continued discrimination. But as Coretta Scott King said to me as she tried to imagine what position the Rev. Dr. Martin Luther King Jr. would take on “don’t ask, don’t tell”: “What’s the yardstick by which we should decide that Gay rights are less important than other human rights we care about?”

The Commission on Civil Rights has been crippled since the Reagan years by the appointments of commissioners who see themselves as agents of the presidential administration rather than as independent watchdogs. The creation of a new, independent human and civil rights commission could help us determine our next steps in the pursuit of freedom and justice in our society. A number of explosive issues like immigration reform await such a commission, but recommendations for resolving the controversies over the rights of Gays, Lesbians and transgendered people should be its first order of business.

(Mary Frances Berry, the chairwoman of the Commission on Civil Rights from 1993 to 2004, is the author of “And Justice for All: The United States Commission on Civil Rights and the Continuing Struggle for Freedom in America.” This oped was reprinted from commondreams.org and originally printed at newyorktimes.com.)