When a Nod’s Not Enough 

By James Kirchick

Originally published on Advocate.com January 05 2009 12:00 AM ET

On the evening of October 10, then–Democratic presidential nominee Barack Obama attended a fund-raiser in Philadelphia for major gay donors at the city’s Sheraton Hotel. According to the event’s organizer, Equality Forum executive director Malcolm Lazin, the benefit was the only top-level LGBT donor event Obama attended during the general election campaign. Fittingly, Obama used that exclusive opportunity to make a dramatic announcement that, if not technically a promise, was nonetheless heartening as far as political pledges go.

“He anticipated that very early on both hate crimes and [the Employment Non-Discrimination Act] would pass,” Lazin says. “Then he went further and said that he expected during his term[s], four or eight years, that ‘don’t ask, don’t tell’ and [the Defense of Marriage Act] would be repealed.” At no other time in the campaign did Obama speak with such specificity about gay issues, nor has he or anyone in his administration made such detailed comments about his legislative agenda with respect to those issues since he won the presidency. But if Obama does indeed undertake the steps needed to accomplish the goals that Lazin says he outlined -- and, more important, if he is successful in doing so -- it would solidify his position in the pantheon of gay rights heroes.

Barack Obama was arguably the most pro-gay major-party presidential campaigner in American history. From his first national political address (the barnstorming keynote he delivered at the 2004 Democratic National Convention) up to his acceptance speech in Chicago’s Grant Park, he repeatedly spoke of the struggles gay people face, explicitly linking them to the greater civil rights movements that have illuminated American history. So it’s understandable that his election has left gay men and women feeling a bit giddy. And the fact that all this inclusive language is coming from a man who, as of January 20, will become the country’s first black president makes the rhetoric all the more meaningful.

While everyone has discussed the transformative nature of a black president, few have pondered its possible effects on the gay populace -- how a black president may move the country toward greater acceptance of other minorities, including gay people. “His general philosophy is to push past identity politics to a truly inclusive vision,” says Evan Wolfson, founder and executive director of the New York City–based group Freedom to Marry. “That’s the way he looks at the world, and I think gay people belong comfortably in that picture.” As Wolfson attests, even when Obama isn’t addressing gay issues explicitly, many gay people intuit a subtle embrace in his soaring rhetoric about bridging electoral, cultural, and regional divides, sensing that Obama is speaking to them too.

While candidate Obama promised much, effecting all the change he guaranteed on the stump will be much more difficult for President Obama than his ever-optimistic admirers might imagine. Though Obama sailed with seeming effortlessness from state legislator to president of the United States in just four years, he now faces what is perhaps the most daunting set of challenges confronted by a newly elected president since Ronald Reagan entered the Oval Office nearly 30 years ago. Aside from two wars that have strained the American military, an ongoing and fearsome terrorism threat, and an emboldened Russia that is behaving more and more like the Soviet Union of old, Obama must also contend with a spiraling financial crisis that has affected every aspect of the global economy and presents this country with the gravest economic peril since the Great Depression. Given this series of grueling tasks, is it realistic to expect Barack Obama to make gay-related issues a real priority?

There are many things the new president can do with a stroke of the pen. First will be the appointment of a White House liaison to the LGBT community, a position initiated by Bill Clinton and left vacant by George W. Bush. While the office may seem symbolic, it ensures that gay people will have a direct line to someone who has the president’s ear.

HIV/AIDS is an issue that usually ranks behind “don’t ask, don’t tell,” DOMA, and hate-crimes protections on most gay activists’ list of priorities, but it’s a resurgent problem in the United States and one that Obama could do much on his own to combat. Winnie Stachelberg, senior vice president for external affairs at the Center for American Progress and a longtime lobbyist for gay causes, says that Obama’s appointment of Melody Barnes as director of his Domestic Policy Council signals major changes in the federal government’s approach to the epidemic. That’s because Barnes, a former aide to Sen. Ted Kennedy and a former colleague of Stachelberg’s at the center, is an advocate of increased funding for comprehensive sex education and condom distribution. For the past eight years, “the President’s Advisory Council [on HIV/AIDS] was populated by abstinence-only, ideological folks,” Stachelberg says. “Barnes at DPC is another example of how there will be a more robust and aggressive effort with respect to HIV/AIDS.”

Through executive orders—policy changes the president can enact on his own without having to consult Congress -- Obama also will be able to play a significant role in furthering gay equality, both through the reversal of Bush-era decrees and by signing his own. In November, the Human Rights Campaign delivered a 12-page memorandum to the Obama transition team, calling on the president-elect to issue executive orders that would ban discrimination against transgender employees in federal agencies, prevent federal contractors from discriminating on the basis of sexual orientation and gender identity, and remove HIV from the government’s list of “communicable disease[s] of public health significance” so that HIV-positive foreigners can enter the country legally. These moves will be relatively easy for the new president to make, and advocates anticipate that he will close the deal. What’s more difficult to predict is how he’ll be able to move pro-gay legislation through Congress and how enthusiastic he is about waging those fights.

While Obama sounds mostly the right notes on gay issues, he hasn’t served in public office long enough to build much of a record. The only significant gay rights legislation he’s dealt with was a bill he cosponsored in the Illinois state senate to ban discrimination based on sexual orientation and gender identity. Nonetheless, Obama is quite impressive on paper. He supports civil unions and has called for the repeal of the Defense of Marriage Act, the 1996 law allowing states not to recognize same-sex partnerships officiated in other states and prohibiting the federal government from recognizing them in any way approximating marriage. Obama has called for the repeal of “don’t ask, don’t tell” and supports the Uniting American Families Act, which gives the same-sex partners of American citizens the same access to the immigration system as heterosexual spouses. He also supports the Employment Non-Discrimination Act, which would make it illegal for employers to fire someone because of sexual orientation or gender identity, as well as the Matthew Shepard Act, which adds both of those traits to federal hate-crimes statutes. During the campaign, Obama supported a civil unions bill still moving through the Illinois legislature, and he opposed anti–gay marriage constitutional amendments in California, Arizona, and Florida -- the same sort of amendments that his predecessor, John Kerry, endorsed when he ran for president just four years earlier. If supporters of gay rights do not judge this record to be perfect -- which is understandable, given Obama’s continued opposition to marriage equality -- they have to admit it’s pretty darn close.

All the prominent gay leaders interviewed for this article have a deep belief that while Obama may not be with them entirely, he does view gay civil rights as part of the “change” message he has thus far elucidated. “As he looks at the diversity of this country, he very clearly sees us as part of the fabric of this country and he sees us very clearly as part of the change he intends to make,” asserts Joe Solmonese, president of the Human Rights Campaign. “He has committed to a broad array of legal and political actions that show that he is within the Democratic Party tradition of support for civil rights, including gay people,” adds Wolfson, who then cautions, “Our job with any politician is not to help them do what they want but to help them do what we want.”

Most of the efforts related to gay equality over the next four years will initiate in Congress, where the president plays an influential role in helping to set the agenda. Bills that would extend domestic-partner benefits to federal employees and include gays in the federal hate-crimes statute, for instance, never made it out of Congress during the Bush years in part because gay rights groups and their allies on Capitol Hill knew they'd face a certain presidential veto. With a gay-friendly occupant of the White House, however, gay rights advocates will be more aggressive in pushing that legislation through.

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.

As with so many other issues of importance to gay people, on “don’t ask, don’t tell” Obama’s hand will be strengthened by the progress Americans have made in their attitudes toward gays. Whereas a majority of Americans supported the ban on openly gay soldiers in 1993, about 75% -- including a majority of Republicans -- now oppose it. Additionally, a string of prominent former military leaders, including former Joint Chiefs of Staff chairman John Shalikashvili, have come out publicly in opposition to the ban. Even the current military leadership shows signs of promise. Whereas then–Joint Chiefs chairman Colin Powell threatened to resign over Clinton’s pushing of the issue, the current chairman, Adm. Mike Mullen, last year told cadets at West Point that he’s open to a review of the policy. In his 2007 Senate confirmation testimony, Mullen explicitly informed Congress that it’s the military’s duty to implement civilian orders -- not the other way around.

After eight years of an administration that was at best indifferent and at worse actively hostile to gay rights, it’s understandable that gays would welcome the prospect of a Democratic administration with unadulterated optimism. But optimism about the Obama administration should not lead to complacency, and any strategy to pass legislation must be tempered with realism. “I think we are realistic in our expectations, which doesn’t mean we need to sit on our hands,” Stachelberg says. And putting too much stock in the words of politicians can lead to disappointment down the road. After all, Clinton was the first presidential nominee to make explicit appeals to the gay voters, earning their overwhelming support. Yet he was the same president to sign “don’t ask, don’t tell” and DOMA into law, and he trumpeted his support for the latter on Christian radio when he ran for reelection in 1996.

Obama has shown far more self-control than the notoriously undisciplined, shoot-from-the-hip Clinton, earning himself the nickname “No Drama Obama.” If the Obama administration is anything like the Obama campaign, expect to see few leaks and a well-executed, patient game plan. “I think that, unlike President Clinton, you have somebody who has spent time in Congress as a member of the U.S. Senate, has studied prior administrations and what they’ve done right and done wrong, and has brought in advisers who have gone through those experiences,” Baldwin says. But this political savvy has a potential downside, in that it may lead the administration to manage (read: play down) disagreement from its various constituencies. In that case, gay advocates will need to stand firm no matter how hard they may find the task of voicing complaint about a Democratic president. “It may be, in a given round of engagement, that we don’t get what we ask for,” Wolfson says. “But if we ask for less than we deserve we are guaranteed to get less than we deserve.”

Gay leaders faced such a quandary a full month before Obama even took the oath of office. In December he announced that Rick Warren -- the popular evangelical leader of California's Saddleback megachurch -- would deliver the invocation at his inauguration. Warren was a prominent supporter of Proposition 8 and has said that legalizing gay marriage could lead to the recognition of polygamy and incest. Immediately, gay groups protested, with HRC issuing a public letter to Obama calling his decision a "genuine blow" to LGBT Americans. Obama waved off the criticism, stressing that his ideology of inclusion means breaking bread with people on the other side of political debates, especially divisive ones. “It is important for Americans to come together even though we may have disagreements on certain social issues," Obama said at a press conference. Warren’s role at the inauguration is entirely ceremonial, but could the symbolism of giving such him a prominent platform -- one that confers legitimization -- signal legislative disappointments down the road?

Indeed, just because Obama talks a good game on gay rights doesn’t necessarily mean he’ll follow through, no matter how genuine his rhetoric may sound. He’s already given gays some reasons to worry, with two of his associations on the campaign trail raising red flags: Donnie McClurkin, the “ex-gay” gospel singer Obama asked to help him win the critically important, and socially conservative, black vote during the South Carolina Democratic primary; and James Meeks, an Illinois state senator and pastor whom Obama once called a spiritual adviser, who has been described by the Southern Poverty Law Center as one of the “10 leading black religious voices in the antigay movement.” In both instances, as in the aftermath of the Warren announcement, Obama reacted swiftly to assuage gay voters’ concerns, and his supporters maintain he doesn’t have an antigay bone in his body.

Ultimately, with two ongoing wars and a global financial crisis, Obama may not even play much of a role in moving gay rights forward, however good his intentions may be. Baldwin remains optimistic and plans to frame issues like domestic-partner benefits and employment nondiscrimination within broader concerns about the country’s economic strength. “Given the idea that the economy and jobs and competitiveness will be large issues at the forefront in our next session in Congress ... we’ll have consideration of domestic-partner legislation in that particular context,” she says.

In his second book, The Audacity of Hope, Obama reflects on his lack of support for gay marriage, writing, “In years hence I may be seen as someone who was on the wrong side of history.” Such a confession indicates an uncertainty and open-mindedness not seen in most politicians, who usually state their opinions with the assuredness that comes naturally to people who, by dint of a career in politics, never admit being wrong. Others may see this prognostic morality as cynical and cowardly: Obama is giving himself room to seem open-minded while still opposing, in pure policy terms, full equality for gays. What’s clear, however, is that Obama’s acknowledgment that he could be “wrong” about an issue so hotly contested as same-sex marriage indicates that he’s well aware of the way the culture is headed. As the most powerful man in the world, Obama has the opportunity to write history. The question now is how audacious it is to hope that he’ll be on the right side.