When a Nod’s Not Enough 

The provision of federal benefits to same-sex couples in unions legally recognized by state governments (whether they’re marriages, civil unions, or domestic partnerships) is unlikely until after DOMA is repealed, which would be the hardest agenda item to move forward given how overwhelmingly popular the bill was in 1996. Advocates note, however, that the political situation has changed dramatically since the 1990s, when not a single state recognized gay relationships. “As more and more instances occur where there are legally recognized [unions] between same-sex couples at the state level, the absurdity of the national policy becomes more clear,” says Tammy Baldwin, the nation’s only openly gay congresswoman, who will play a leading role in moving all of the gay legislation on Capitol Hill forward over the next four years.

The first gay rights bill that Congress is likely to send to the president’s desk is the Matthew Shepard Act. The measure passed the House and gained the necessary 60 votes in the Senate in 2007, but failed to move out of Congress because it was tied to a controversial defense-spending bill opposed by both the White House and by liberal Democrats who resisted any further funding of the war in Iraq. Now, with a president who has pledged to sign the legislation, an increased Democratic majority in Congress, and a legislative history with members’ votes on record, Solmonese says “common sense would dictate” that hate-crimes law will come first. ENDA too passed the House in 2007, but it was stalled by Democratic leadership in the Senate who feared that its passage might hurt the party’s chances during the 2008 election. The hesitation on the part of some Democrats to proceed with gay rights legislation out of anxiety that it could stir an antigay backlash is a syndrome that may similarly inhibit Obama, who has far weightier matters on his plate.

There’s one thing Obama knows not to do with regard to gay rights: repeat the mistakes Bill Clinton made. Clinton’s first months in office are infamous today for his fumbling the issue of gays in the military, a blunder that set the tone for what has since been characterized as a chaotic first two years in office. Throughout the 1992 campaign Clinton promised to work to end the military’s longstanding policy that, at the time, barred gay people (out or closeted) from serving. As president, Clinton could have overturned it immediately by executive order, but warnings from military brass -- and from congressional leaders who said they would enact legislation to codify the ban -- persuaded Clinton to back down and strike the compromise that became “don’t ask, don’t tell.”

Obama will probably be more cautious and cooperative. Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, says that a bill to repeal “don’t ask, don’t tell” will be reintroduced in the House by mid February and predicts that Obama will sign it “certainly no later than 2010.” Sarvis’s organization hopes to gain 60 more cosponsors for the bill over the coming year and plans to work with Massachusetts senator Ted Kennedy on introducing a similar piece of legislation in the Senate. Instigating a fight -- should it come to that -- over gays in the military is something Obama understandably wants to avoid, and Sarvis says that Obama’s decision to keep Secretary of Defense Robert Gates is one sign that he wants to work with the Pentagon -- rather than against it -- in ending the discriminatory policy.