Gay Rights Activists Optimistic Marriage Momentum Will Shift to Congress

Congress poised to pick up where Supreme Court leaves off on LBGT issues


A majority of those polled believe same-sex marriage should be legal or illegal based on the U.S. Constitution, not the states.

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This week, rainbow flags, equality signs, gay couples and marriage protestors flooded the steps of the Supreme Court as it examines the constitutionality of California's Proposition 8 and the federal Defense of Marriage Act.

But now that lawmakers on Capitol Hill are speaking out to support gay marriage, the fight for equality may move across the street where the Senate looks poised to pick up where the Supreme Court leaves off. Wednesday, Sen. Kay Hagan, D-N.C., announced she supports gay marriage, joining a handful of lawmakers like Sen. Jon Tester, D-Mont., Sen. Claire McCaskill, D-Mo., and Sen. Rob Portman, R-Ohio, who in recent weeks have clarified their positions on marriage equality.

[PHOTOS: Outside the Supreme Court]

"We think there are big opportunities to take the momentum that has been created around marriage equality and channel it into passing other key protections," says Allison Herwitt, the legislative director for the Human Rights Campaign. "It is amazing to be working on this issue right now. There is an expanding universe of lawmakers who are interested in being educated on LBGT equality."

But further advancements for the LBGT community expand far outside the realm of marriage.

The emerging comprehensive immigration reform legislation taking shape in Congress provides an opportunity for lawmakers to extend more rights to LBGT individuals.

Because the same-sex couple's marriages are not recognized under DOMA, an American who marries someone of the same sex from another country cannot apply for a green card on behalf of their spouse as heterosexual couples can. The loophole, which affects 36,000 couples, keeps many apart or forces them to relocate to other countries for at least part of the year.

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A proposal by the so-called gang of eight in the Senate does not include the provision to give same-sex, binational couples the right to apply for a green card. But President Barack Obama has indicated support for it in the outline of what the White House expects from immigration reform, raising the possibility of a compromise.

Another area where Congress could expand gay rights is workplace equality.

Currently, there are no federal laws that prohibit employers from discriminating against LBGT workers and 29 states have nothing on the books to protect individuals from being fired or denied jobs or promotions because of their sexual orientation.

Advocates of workplace equality have introduced legislation to change this every session since 1974 without success. But while Congress has dragged its feet on the bill, Americans appear to support the Employment Non-Discrimination Act. A poll by the Center for American Progress, a left-leaning think tank, found that nearly 75 percent of Americans supported legislation protecting the LBGT community from discrimination.

Patrick Egan, a political scientist at New York University who is an expert on LBGT issues, says immigration and workplace equality are common sense places where Congress could intervene, but he warns that growing national support for gay rights may still not be enough to convince the Republican-controlled House of Representatives to act.

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"Congress is a system that is not designed to accommodate policy change. It is designed to preserve the status quo," Egan says. "It makes political sense for the [Republican] Party moves toward the center, but they also have a base that votes in primaries and is not hesitant to turn out GOP incumbents who do not support their policy agenda."

The Human Rights Campaign's Herwitt argues, however, even if nothing passes right away because of the House, every conversation, committee hearing and bill introduced helps further the cause.

"The strategy is to see what we can pass through the Senate to force the hand of the House. We have some great members of the House, but it is difficult when you have leadership that refuses to bring pro-equality bills that come through committee onto the House floor."