Fast forward more than 60 years. Gay marriage is gaining support in this country, as 17 states and the District of Columbia have legalized it. In Russia, meanwhile, gay marriage is not only outlawed, but the largest country arising from the breakup of the Soviet Union is conducting what most agree is an anti-gay campaign that coincides with the 2014 Winter Olympics in Sochi.
On Friday, Elvia R. Arriola, a law professor at the Northern Illinois College of Law in DeKalb, pointed out those divergent paths as she and others discussed appropriate responses to Russia’s anti-gay legislation enacted this past summer. The Russian law prohibits speech and other actions that could be construed as advocating “nontraditional sexual relations” under the premise that the law protects children.
The ABA Commission on Sexual Orientation and Gender Identity, known as SOGI, served as the prime sponsor of the Midyear Meeting program, which drew 11 co-sponsors. As moderator Mark E. Wojcik, a law professor at The John Marshall Law School in Chicago, said: “Today it is SOGI against Sochi.”
But the quips stopped there. Jim Holmes, a partner at the Los Angeles office of Sedgwick LLP and chair of SOGI, set the tone in opening remarks by linking the current campaign against gays in Russia to the years leading up to the Holocaust in Germany. Holmes pointed to a reported statement by the mayor of Sochi, dismissing the presence of gays in his city. That, he said, was similar to the Nazis before the 1936 Summer Olympics saying there were “no Jews in Germany.”
“The laws in Russia try to make gays invisible,” Wojcik said.
The panelists suggested that Russia is now fighting a ferocious culture war, similar to what occurred in the United States two decades ago. “Quite clearly (the Russians) are sending a very, very strong message,” said Arriola, adding that the ongoing Olympics is a stage for a larger, global cultural war. “It’s a message where Russia is on its own values.”
A boycott of the Sochi Olympics would not have been the appropriate answer, argued Nancy Hogshead-Makar, a lawyer and senior director of the Advocacy Women’s Sports Foundation. She knows the implications of such actions. In 1980, she was a 17-year-old Olympic swimmer who could not compete because then President Jimmy Carter ordered a boycott of the Olympics in Moscow after the Soviets invaded Afghanistan a year earlier.
Four years later, Hogshead-Makar competed and won three gold medals and one silver in swimming. “The 1980 boycott accomplished almost nothing,” she said, other than to lose a generation of U.S. athletes by leaving about 700 of them on the sidelines.
Stephen J. Thompson, a partner at Ungaretti & Harris LLP in Chicago who represents Olympic athletes, detailed how the International Olympic Committee might handle a situation where a competing athlete wears a sign saying, “Hey kids, being gay is great!” This would violate the Russian law, officially Article 6.21.
The IOC would likely suspend the athlete from the games because an athlete signs an agreement to abide by the laws of the host country, Thompson said. While the athlete could appeal, the process takes weeks.
But he raised an interesting scenario. Take a male gold medal winner. After the award ceremony, he would be expected to kiss his wife as part of the congratulatory process. But what happens when another gold medalist kisses a same-sex partner?
“We don’t know at this point how the law will be enforced,” Thompson said. “We have mixed messages from Russia. I think that is the way the Russians want it.”
The ultimate answer, he suggested, is for the IOC to “develop a backbone on human rights” and stay away from host countries that have repressive human rights policies.
David W. Austin, a law professor at California Western School of Law in San Diego, also cited the ongoing culture war in Russia. “Remember, we can fight cultural wars by referring to culture,” Austin suggested, pointing to Leo Tolstoy, the Russian literary giant who has described his homosexual attractions in his works.
“It is through engagement, not boycotts or withdrawal” that human rights violations can be best addressed, he said.