Are GOP Donors the Key to Passing a Nondiscrimination Bill?

After 11 states passed constitutional amendments banning same-sex marriage in 2004 and President George W. Bush was reelected on an antigay platform, the nascent marriage equality movement was on the skids. Evan Wolfson and his group Freedom to Marry needed a new plan.

They came up with the "2020 Vision," a road map for how marriage equality could be achieved nationwide by 2020.

"What I wanted to do was have a horizon that was far enough away that it seemed reasonable to people -- that it didn't seem absurdly close and unattainable," Wolfson explained, "but not so far away that it lacked all urgency and failed to compel people to action."

When Wolfson left Lambda Legal in 2001 to form Freedom to Marry, he did so to take the marriage conversation out of the courtroom and into the public eye. At the time, none of the big LGBT organizations, outside of the legal groups, wanted to take it on. It was a loser. Gays couldn't marry in one single country anywhere in the world. How could you fundraise off a goal that might come to be in the very distant future, but that no one could really envision?

Yet over the last decade, marriage became the great equalizer. Everyone knew what it entailed -- including straight Americans. Everyone knew same-sex couples didn't have it. And until the 2013 decision in United States v. Windsor gutted the Defense of Marriage Act, it didn't matter whether a same-sex couple lived in New York or Alabama; their marriage commitment, however heartfelt, didn't carry with it the weight of federal law.

As complex as a lifelong commitment is, embracing it at the altar was conceptually very simple -- and, perhaps, one of the least complicated forms of discrimination to solve. That's at least part of why the ugly stepchild of the movement became the belle of the ball.

But now that it's leaving in the wake of the Supreme Court's landmark ruling in Obergefell v. Hodges, the question becomes: Can the ball continue on without this belle? And how will the movement continue to access the resources it needs in order to finish the work of protecting LGBT Americans in employment, housing, and public accommodations across the nation?

In private circles, some LGBT advocates have been quietly referring to a potential post-marriage funding drop-off as the "hunger games." In fact, the week after the Supreme Court ruling, Equality Maryland sent out a fundraising email saying that financial support had "significantly declined" and the organization had "difficult decisions ahead."

But in truth, the picture that's emerging is much more complex than just the fiscal cliff some have feared. What's more likely is that the years ahead will witness a shift in focus and resources from the nation's bluest and most progressive states to its reddest and least LGBT-friendly. Indeed, a new group of pro-LGBT Republican donors who were drawn into giving by the marriage fight are now making strong commitments to push for nationwide nondiscrimination protections, starting in the red states. And the new cash infusion will likely reshape the landscape, with less of an emphasis on here-to-stay institutional organizations than on dissolvable campaigns in the vein of Freedom to Marry.


In 2008, gay progressive donors finally achieved a goal they had been working toward for several election cycles in New York: electing a Democratic majority in the state senate that would smooth the passage of a bill legalizing marriage equality. But as the 2009 session unfolded, the marriage equality bill went down in a stunning defeat in the senate, failing 38 to 24, with eight Democrats voting against it and not a single Republican voting in favor.

Once the hand-wringing and finger-pointing were over, one thing became painfully obvious: Democrats couldn't be counted on to shepherd the bill through alone. Supporters realized that it would take a coalition of liberals and conservatives to revive the Empire State's marriage equality effort. A friendship formed between gay Democratic philanthropist Tim Gill and Republican hedge fund billionaire Paul Singer, who ultimately sunk roughly $1 million and $650,000 of personal funds, respectively, into the fight.

On June 24, 2011, a Republican-controlled state senate passed same-sex-marriage legislation with all but one Democrat and the help of four Republican senators. It was the first time a GOP-led chamber had passed a marriage equality bill.

That successful collaboration led Gill to ask Singer to build a pro-LGBT donor network on the right modeled on his own donor network, OutGiving, on the left.

Singer, who has a gay son who married in Massachusetts in 2009, had been giving to marriage efforts piecemeal since 2006, starting with the effort to protect same-sex marriage in Massachusetts and then New Hampshire. But at the beginning of 2013, he formalized a vehicle for his giving, calling it the American Unity Fund (AUF). The Republican or "center-right" donor network counts more than 50 pro-LGBT supporters who pay a $1,000 membership fee and then commit to giving $5,000 to $25,000 per election cycle to a slate of "pro-freedom" GOP candidates.

Following the Supreme Court ruling, Gill and Singer have trained their sights on what they consider the new frontier of the movement: federal nondiscrimination protections. Unlike the dizzying whir that delivered marriage equality from political exile to cultural embrace over the past decade, nondiscrimination protections are a goal the movement has been working toward for almost half a century with no luck. Congresswoman Bella Abzug first introduced the Equality Act of 1974, which would have added "sexual orientation" to the Civil Rights Act of 1964. The newly introduced Equality Act would similarly add both "sexual orientation" and "gender identity" to the landmark civil rights legislation, but it's unlikely to gain traction in the GOP-led Congress.

So Gill is returning to exactly where he started: the states. It was a 1992 bill prohibiting local jurisdictions from passing protections for gays in his home state of Colorado that first inspired him to establish the Gill Foundation, a pro-LGBT philanthropic organization. But the emerging marriage battle in the early '00s drew him into political giving. Now, Gill views the movement's successful effort on marriage as a road map to achieving the non-discrimination policies that have proven so elusive even though the vast majority of Americans (approximately 75%) support employment protections and even more (9 in 10) believe they already exist.

"By focusing on winning marriage state by state," Gill said, "we were able to change lives faster and make the case clearly to the Supreme Court that the majority of the country supports the freedom to marry."

Only 19 states currently have employment laws that protect both gay and transgender workers from discrimination. With that in mind, Gill and Singer have established an organization called Freedom for All Americans (FFAA) that's designed to pick up where Wolfson's group left off.

"Freedom for All Americans is modeled after Freedom to Marry in the sense that it will operate like a campaign team, working closely with donors and other movement organizations to build the kind of smart, focused effort that will be required to win," Gill explained.

Gill calls it "imperative" to have an organization that will bring the type of intensive effort to passing nondiscrimination protections that Wolfson and his colleagues brought to marriage.

Margaret Hoover, Singer's adviser on LGBT giving and president of the American Unity Fund, anticipates that FFAA will be about a $25 million campaign, plus spending on ballot initiatives, each of which could cost several million dollars.

Gill is also particularly aware that it's going to take a massive movement-wide effort to get nondiscrimination protections enacted across the country.

"Many of these donors gave very generously, given their individual capacities, to the effort to win marriage," he said of the donors who have joined his progressive network over the years. "And that's what it will take from all of us -- giving what we can -- to win nondiscrimination."

But the new goal will be getting a boost from an emerging class of Republican donors who were drawn into the LGBT movement by the high-profile marriage effort. In fact, far from squeezing the final juice from a group of fatigued donors, the marriage success has energized donors on the right who believe that lesbian, gay, bisexual, and transgender Americans should have the same opportunities to succeed as every other U.S. citizen. To them, the tenets of both individual freedom and equal opportunity are perfectly consistent with conservative principles despite social conservative dogma that has suggested otherwise over the last decade-plus.

"Much of the new money in the movement is actually coming from Republicans through American Unity Fund," Hoover said. "So not only is funding not drying up, we are also having new people step up at higher levels."

It's as if a handing of the baton is happening between the progressive donors who helped fund the early -- and often, heart-wrenching -- years of the movement and conservatives who will play an increasing role in the next leg of the race. Hoover admits that conservatives have some catching up to do. Whereas Gill estimates that he has invested approximately $327 million in LGBT equality since '92, Singer has donated a little over $20 million since 2006. A significant contribution, to be sure, but he is preparing to spend millions more to achieve his ultimate goal: full political freedom for LGBT Americans.

The center-right donors are also happy to borrow from the progressive crib sheet of what's worked for the gay rights movement and what hasn't. In 2007, for instance, the question of whether to include transgender individuals in the Employment Non-Discrimination Act deeply divided progressives. By the time President Barack Obama entered office in 2009, the legislation had become trans-inclusive (i.e., protecting people on the basis of both sexual orientation and gender identity) but not before a profound internal struggle ensued that pitted Rep. Barney Frank and the Human Rights Campaign against a coalition of several hundred other LGBT organizations that insisted the bill also protect transgender Americans.

A similar scenario had already played out in several states, where sexual-orientation-only bills were passed with the idea that gender identity protections would be added later. It's proven to be a failed strategy. New York, for instance, passed the Sexual Orientation Non-Discrimination Act in 2002, but gender identity remains unprotected in the state to this day.

"Part of the work of the nondiscrimination campaign is going back and securing protections for transgender Americans in New Hampshire, Wisconsin, and New York," Hoover explained.

"On one hand, we're late to the movement," she added. "On the other hand, we're learning the lessons of the movement to date -- we're not going to reinvent the wheel. We're all on the same team and nobody's leaving trans individuals behind."


When social conservatives in Indiana tried earlier this year to pass a "religious freedom" bill that, among other things, would allow business owners with personal objections to same-sex marriage to decline service to gay couples, the national spectacle that ensued appeared to be an organic uprising against bigotry and homophobia.

In fact, it was the by-product of the LGBT movement's successful 2013-2014 bid to block a constitutional ban on same-sex marriage in the state.

Though Indiana outlawed gay marriage in 1997, the state's social conservatives had been bent on adding a constitutional prohibition ever since. Indiana bylaws require constitutional amendments to be approved by two consecutive general assemblies with the exact same language before going to the ballot. When Hoosier lawmakers finally approved the antigay measure in the 2011-2012 general assembly, it appeared all but certain that they would repeat in the 2013-2014 session and finally send it to the voters.

But the effort ran into two unforeseen problems. First, the 2012 elections demonstrated a sudden sea change in public opinion nationally when voters in four separate states -- Maine, Maryland, Minnesota, and Washington -- either turned back an antigay constitutional amendment or ratified same-sex-marriage rights by popular vote.

Second, the newly formed American Unity Fund had chosen Indiana as an inaugural battleground for its conservative campaign to promote LGBT freedom.

"We said, 'We're going to work in a conservative Midwestern state with a Republican supermajority. We're going to make the case for freedom, we're going to make the case for why that discrimination doesn't belong in the constitution, and we're going to win,' " recalled Tyler Deaton, a senior adviser to AUF.

AUF enlisted the help of Freedom to Marry and the movement's longtime leaders on the left, Lambda Legal, the ACLU, and HRC. But the new conservative group leaders also did something unprecedented -- they convinced several of the state's major corporations to help them found Freedom Indiana, a statewide campaign for LGBT freedom.

With a budget of about $2 million, Freedom Indiana ultimately put on a full-court press to defeat the measure that included the best assets of both the right and left: strong business support, the work of four of the state's top lobbying firms, and 40 paid field organizers working districts and college campuses across the state.

Deaton says the emphasis on field organizing comes directly from progressives.

Combining the best of both worlds worked. When the measure finally came to a vote in early 2014, lawmakers voted to strip the most extreme language banning all forms of relationship recognition.

"We flipped about two dozen house Republicans who voted with us on the key motion," Deaton said. "We reset the legislative clock and they had to start over."

So when social conservatives pushed their supercharged Religious Freedom Restoration Act (RFRA) through the state legislature in April of this year, AUF and partner organizations quickly resurrected the existing infrastructure from the campaign Freedom Indiana had run in 2013.

"We awakened a sleeping giant and stood that thing right back up," said Katie Blair, who took over as Freedom Indiana's campaign manager at the beginning of the year. The fact that the group had initiated the conversation with voters two years earlier and had the built-in support of some of the state's biggest corporations put the campaign on course to create an intense outcry with homegrown roots that reverberated nationwide. Among other painful outcomes for Indiana lawmakers, several organizations vowed to boycott Indiana and relocate their national conventions elsewhere, and the Indianapolis-based Angie's List scrapped plans for a $40 million expansion in the state.

When all was said and done, Indiana Gov. Mike Pence had been forced to sign a revision to the state's RFRA law that ensured it could not be used to discriminate against LGBT Hoosiers in a dozen jurisdictions that had enacted sexual-orientation and gender-identity protections. Although the fix did nothing to protect LGBT individuals throughout most of the state since Indiana law provides no such statewide protections, Deaton says the fact that Pence and his cronies had to conduct damage control in the national spotlight was still an important victory.

"The fix was a very big win, symbolically," Deaton said. In part, it was a win simply because Pence was forced to backtrack on his initial claim that the law didn't need fixing at all. It also paved the way for sexual orientation and gender identity to be entered into Indiana code for the very first time.

The epic fallout also served as a cautionary tale to other state lawmakers who were considering similar bills before the end of their sessions. Deaton called the imbroglio "the most valuable tool in the toolkit" as he has had conversations with other GOP lawmakers across the country.

When they consider enacting anti-LGBT legislation, Deaton says, "I ask them, 'How much do you hate yourself?' "

Although the LGBT movement did not emerge unscathed, it managed to tamp down the legislative appetite for taking on religious freedom bills targeting LGBTs in advance of the Supreme Court ruling on same-sex marriage. Of more than 50 bills introduced in some 21 state legislatures, only a handful of them were enacted.

While most of AUF's work has been defensive in nature for the past few years, Deaton said pro-LGBT conservatives are preparing to go on offense. And they are eyeing Arizona, Michigan, and Indiana.

And it's the Freedom Indiana effort that will serve as a model for conservatives as they take their Freedom for All Americans nondiscrimination campaign into the conservative strongholds of America.

"Freedom Indiana found a way to enlist everyone and really widen the circle," Deaton noted. "It was just as exciting for the traditional organizing base in the LGBT community as it was for the small business owners."

Kerry Eleveld's book Don't Tell Me to Wait (Basic Books) publishes October 6, 2015.