President Obama's 2011 State of the Union address to Congress
Editor’s Letter: President’s Speech Could Send Congress a Message

By Matthew Breen

Originally published on Advocate.com February 12 2013 11:43 AM ET

A renewed vigor for democratic, progressive — even liberal — ideals was on display as President Obama delivered his second inaugural address on January 21. No one could argue that the president is anything less than a gifted orator. But he has thus far been at his most eloquent, most impassioned, most extraordinary, when responding to an extraordinary event: his first election victory speech, the speech at Newtown, at Fort Hood, following the dispatching of Osama bin Laden.

If history is a guide, his State of the Union address tonight will not be a rousing call to liberal arms. After all, this speech is prescribed by the Constitution, not the result of a momentous occasion. Article II, Sec. 3, of the U.S. Constitution reads, “The President shall from time to time give to Congress information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient.”

“From time to time” lacks a certain heft, or momentousness. Yet this is an occasion upon which the president should speak about the measures he sees as vital to the health of the union. Prognosticators predict he’ll speak on immigration reform, gun control, job creation, and the state of the economy. And since the president’s historic inclusion of LGBT rights in his inaugural address, we can reasonably expect that he’ll address those concerns important to LGBT rights that he feels Congress should take up.

The Obama administration had forestalled issuing an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity, a 2008 campaign promise, preferring instead to ask Congress to pass broader legislation, the Employment Non-Discrimination Act. Such legislation, versions of which have been floating around Congress since 1974, is unlikely to be approved by an intransigent House, so the administration will likely return to the executive order notion, though such antidiscrimination measures would only apply to government contractors.

Nevertheless, the president must continue to insist on the importance of ENDA, to call for its passage, and to insist that LGBT rights are human rights. Though the pursuit of our rights may differ in details from the civil rights struggles of women and people of color, the goal is not different in any substantive way. And Obama must once again speak to this point before our divided Congress and continue to push the so-called “culture wars” into sideline skirmishes.

What legislation could the president call for?

Inclusion of LGBT families in immigration reform would ensure  that binational couples and families are not be split up due to lack of federal marriage protections.

(RELATED: Lesbian Couples to Represent LGBT Advocates at State of the Union)

A repeal of the so-called Defense of Marriage Act would allow same-sex couples to engage in all the rights and privileges in marriage that hetero couples enjoy. “Don’t ask, don’t tell,” though officially repealed, is not a settled matter. Though the outgoing Defense Secretary Leon Panetta has extended all the rights to same-sex partners and spouses of military personnel (identification cards, and joint duty assignments) that current law allows, there are still benefits and privileges offered only to those service members that are legally wed in the eyes of the federal government, notably medical/dental insurance and housing allowances. That does not include gay and lesbian married couples. So there is still a gulf in equality with regard to those people Obama describes when he said of the DADT repeal, “When you put on that uniform, it doesn’t matter if you’re black or white; Asian or Latino; conservative or liberal; rich or poor; gay or straight.”

A comprehensive civil rights law, something broad, simple, and elegant, would protect all people from discrimination based on gender identity and expression as well as sexual orientation in regards to public accommodations, housing, credit, education, and federally-funded programs.

A full and fair Census should ask the sexual orientation of citizens and should count our families and children. Data collection is so important to our representation, to addressing health care disparities, poverty, and other social matters of critical importance to LGBTs.

Whatever legislation Obama highlights, he must continue to speak to the importance of our equality. The language of LGBT inclusion, previously so seldom heard from the floor of the House of Representatives or the Oval Office, is now more common, though no less remarkable. Obama’s words are instrumental in the growing acceptance of LGBTs in America. And his language will have an effect on the Supreme Court, also an audience to the State of the Union address. The main turf for the battle for same-sex rights will be in the courts in the near future, more so than in the House and Senate.

While SCOTUS maintains the appearance of separateness from the hoi polloi, the justices are not immune to the tide of public opinion. In particular, the young chief justice, John Roberts, who will likely be on the court for several more decades to come, must surely have an eye to history, and to his legacy — his unexpected vote in the Obamacare case would seem to indicate as much. And his vote on the constitutionality of same-sex unions (oral arguments are slated for late March) isn’t likely to be determined in a vacuum. 

In the case of DADT, the timing of Obama’s public declarations in support of repeal — the use of the bully pulpit — were so expertly timed as to follow the major military figures in their vocal oppositions to the policy. (That tactic very effectively gutted GOP objections.) The timing of his support for marriage equality last May, in his second inaugural address and likely in his State of the Union address, is no accident. The president does not blunder into grand public declarations, and his support is indicative of broad public support. Both Congress and SCOTUS know this.

Such a list of legislation would be ambitious, but much remains to be done in Obama’s second administration. Ambition and the breaking of historical barriers has been the hallmark of Obama’s presidency. So while we have high hopes, we will continue to push for our fierce advocate.