By Kerry Eleveld
Originally published on Advocate.com December 30 2009 12:30 PM ET
In assessing the year in LGBT rights, what is most striking to me is the Obama administration’s unwillingness to engage on almost anything related to relationship recognition. Time and again, the administration has had opportunities to lean into the subject, to nudge the nation a little closer to equality for same-sex couples, and it has repeatedly leaned back, seemingly hoping the subject would disappear into the ether.
The first instance came in April just after the Iowa Supreme Court issued its historic ruling that legalized same-sex marriage, sanctifying the love of gay Americans in the nation’s heartland.
That day, the White House issued a statement that read like the administration was being forced to swallow a bitter pill and reminded the nation that the president does not believe the love shared by same-sex couples is worthy of the institution of marriage.
"The President respects the decision of the Iowa Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage,” read the statement. “Although President Obama supports civil unions rather than same-sex marriage, he believes that committed gay and lesbian couples should receive equal rights under the law."
A couple months later came the now infamous Department of Justice brief defending the 1996 Defense of Marriage Act with language that set the LGBT blogosphere on fire. Some activists condemned the administration for even defending a law they deemed unconstitutional (Obama did, after all, teach constitutional law), but the administration’s defense itself also stoked a visceral reaction from the LGBT community for including arguments such as the citation of rulings involving incest and pedophilia to support their case.
Just for the sake of argument, let’s concede that Justice is simply doing what is incumbent upon on it – defending the laws passed by Congress. The day that brief was released, a former solicitor general told me on background that legal briefs with sticky political implications are routinely reviewed by White House officials before DOJ releases them. What that indicates given the way the first DOMA brief read is that it either wasn’t analyzed by White House staff for political fallout, or the person who did examine it wasn’t sufficiently sensitized to the issues to know what would inflame the community.
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
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.
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.
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?
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.”
The White House has made progress on some gay rights fronts this year
to be sure, such as enactment of an LGBT-inclusive hate crimes law,
Obama recommitting himself as president to end “don’t ask, don’t tell,”
and pushing for Congress to pass a law that would provide benefits to
same-sex partners of federal workers.
But by and large, the
administration has shown a reticence bordering on negligence for using
the power of the executive to honor the commitments of LGBT couples
with real, full and equal treatment.
It's a pressure point
that exposes the administration for falling far short of advancing the Democratic
ideals many progressives believed Barack Obama represented when they
cast their vote for him.
Obama campaigned on equality among
other things. And while you can make the case that as president he is
making pragmatic decisions about our security concerns abroad or about
sacrificing the public option in health reform as a guard against
letting the perfect be the enemy of the good, not allowing a federal
agency to provide health benefits to a federal worker because of an
ideology that willfully emphasizes DOMA over a law on federal employee
benefits is essentially a form of reasoned discrimination.
maybe the inner circle of the White House will wake up one day and
realize that their political calculations might not only cost their
president the moral high ground on human dignity, but their ability to
package Obama as a moderate, let alone a progressive. After all,
there’s nothing moderate about erring on the side of inequality.