November 4, 2010 for AOL Politics Daily
by Josh Lederman

WASHINGTON – A record number of openly gay candidates was elected nationwide Tuesday, but the Democratic walloping on Capitol Hill is likely to shift the focus of the gay rights movement from congressional legislation to administrative, judicial, and state and local prospects once the new cast of politicians takes power in January.

“In every social justice movement, there are steps forward and steps back, and last night was a mix of both,” Michael Cole, spokesman for gay rights group the Human Rights Campaign, said Wednesday.

The steps forward for gay, lesbian, bisexual and transgender activists included the addition of the fourth openly gay member of Congress, Rhode Island Democrat David Cicilline, who will fill the seat vacated by Rep. Patrick Kennedy. Numerous local anti-discrimination ordinances passed, and according to a nationwide count by the Gay and Lesbian Victory Fund, 106 gay candidates won public offices.

But the gains made by GLBT rights supporters Tuesday were offset by the striking setbacks in Congress. The U.S. House, where Speaker Nancy Pelosi had managed to push through major pro-gay reforms, shifted solidly into Republican hands. In the U.S. Senate, where House-passed gay rights legislation is frequently stalled, at least six Democrats lost seats, including Wisconsin Sen. Russ Feingold, who has long supported gay rights.

“We’ve never truly had pro-equality majorities in either chamber of Congress,” Cole said. “Frankly, with an anti-equality leadership in the House, getting things through that chamber is going to be difficult.”

Those at the forefront of the movement said Wednesday that with Capitol Hill less friendly territory for them, some of their organizing efforts will shift to state and local governments as well as to the White House and policies Obama can impose without a congressional signoff, such as the White House directive to the U.S. Census Bureau to include same-sex couples in the 2010 census.

“There are a number of avenues to move forward on equality,” said National Gay and Lesbian Task Force Executive Director Rea Carey. “The political winds can change, the players shift, the members of Congress shift, but the basic needs of people do not.”

Carey said that like the rest of the electorate, GLBT Americans went to the polls Tuesday concerned about jobs and the economy. Liberals and conservatives may disagree about the definition of marriage, she said, but the country is shifting toward agreement on issues that affect the GLBT community financially, such as domestic benefits and the tax code.

“People are just tired of seeing their friends and families discriminated against,” Carey said. “They may want to judge each other on whether they can get married, but they sure can agree that the financial state of the country is a tough one, and we’re all trying to provide food for our families.”

Yet activists say it’s harder to build a narrative around complicated fiscal issues than it is to tell the story, for instance, of the American man or woman discharged from the military for being gay.

A repeal of the Don’t Ask, Don’t Tell policy, attached to a military appropriations bill, passed the House but was defeated in the Senate in September. The Obama administration has vowed to end the policy, but is defending it in federal courts, claiming a congressional repeal is the best way to act. Meanwhile, a Department of Defense review of the implications of the policy’s repeal is due in December.

“That will give us time to act in — potentially during the lame duck session,” President Barack Obama said Wednesday, referring to what supporters of the repeal see as the last best hope: Another vote in the Senate before the more conservative congressmen elected Tuesday move into their Capitol Hill offices in January.

If that move is unsuccessful, it will be a major blow to prospects for congressional repeal, not only because the Senate will be more conservative, but also because the bill will have to be reintroduced in the House, where Republicans will control both the agenda and the majority of seats. Cole of the HRC said in that case, the GLBT coalition will look to Obama to fulfill his promise to their community.

“If that effort fails in the Senate,” Cole said, “it is incumbent upon him to look at options administratively such as a stop loss order or other ways to halt the discharges.”

Perhaps the biggest blow to GLBT rights supporters Tuesday came in Iowa, where three state Supreme Court justices, all of whom ruled in favor of gay marriage in 2009, were ousted. Jeffrey Toobin wrote in The New Yorker Wednesday that it was the first time any Iowa Supreme Court justice ever lost a retention election, and that the state’s next governor, Terry Brandstad, who opposes same-sex marriage, will appoint the three replacements.

The dismissal of the Iowa justices sparked concerns it will intimidate judges nationwide, forcing them to rule on the side of the politically popular position instead of their true interpretation of the law. Cole said what happened in Iowa was the result of an out-of-state effort to highjack races where judges, in the interest of impartiality, generally don’t speak out on their behalf.

“It was a massive victory for marriage,” said Brian Brown, president of the National Organization for Marriage. Brown said his group was the single largest donor to the campaign to oust the justices. “Clearly they were defeated because they were for same-sex marriage in Iowa.”

The argument that what’s in their community’s best interest is in all Americans’ best interest extends to Iowa, GLBT rights advocates said.

“If you’re a party in court, do you want a judge who feels threatened by a pressure group?” said Hayley Gorenberg, deputy legal director for Lamda Legal, a civil rights organization.

But their opponents argue that judges who are faithful to the separation of powers have nothing to worry about.

“Activist judges who seek to implement their political preference on this country probably should take a lesson from Iowa,” said Danny Carroll, who serves on the board of the Iowa Family Policy Center. The group’s website says it opposes “distortions of sexuality or special rights to those practicing distorted sexual behavior.”

And Carroll said the influx of conservative politicians throughout the country won’t mark the end to the GLBT rights movement.

“I think it will probably slow them down some, but I don’t expect the homosexual lobby to let up,” Carroll said. “The homosexual lobby has advocates in both parties.”