BY Kerry Eleveld

December 30 2009 1:30 PM ET

Another missed opportunity presented when President Bill Clinton
transitioned from DOMA signer to marriage equality promoter – an
evolution first intimated in mid-July and more publicly consummated in
September when Clinton told CNN in remarkably candid terms that he “was
wrong” about gay marriage and considered his previous position
“untenable.”

When press secretary Robert Gibbs was asked about
Clinton’s comments at a White House briefing, he simply said he had not
seen the CNN interview. As one former Washington insider noted, that
could have been an opening for the administration to begin
reconsidering its own stance.

But perhaps what is most
peculiar for a president who ran on an aggressive equality platform was
the Office of Personnel Management’s recent decision not to provide
same-sex partner benefits to a federal employee, defying a federal
judge who ordered the agency to do so in a dispute resolution case.

Based
on guidance from DOJ, OPM reasoned that the order was not legally
binding because the judge was acting in an administrative capacity
rather than a court case. Representatives from Lambda Legal, the
organization representing the federal employee, countered that a
federal judge is always imbued with the power of a federal judge
regardless of what proceeding he’s presiding over.

Without
getting too bogged down in legalese, suffice it to say that the case
presents in shades of gray and could be interpreted by reasonable
lawyers different ways. The real question is, if the administration has
to lean one way or the other, why not lean toward equalizing treatment
for gay couples, as candidate Obama consistently claimed he would?

“I
don't understand why they are so focused on finding reasons to not do
this -- it seems to me that they had all the cover they needed if they
had wanted to reach a different result,” Richard Socarides, a New York
attorney and former LGBT advisor to President Clinton told me. Just as
the agency argued the order was not legally binding, he added, “they
could have also chosen to comply and said they were being directed to
do so by a federal appellate judge.”











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