Op-ed: Mr. President: If Not Now, When?

By Advocate Contributors

Originally published on Advocate.com April 27 2012 11:10 AM ET

If there was ever a question about why President Barack Obama has not signed an executive order that would prohibit federal contractors from discriminating against LGBT workers, Andy Tobias settled it earlier this week in an op-ed on this site.

As Tobias wrote: “How much risk, if any, is there that signing it could help Mitt Romney win?”

Translation: Let’s not think about this executive order as a question of basic fairness and human dignity, but rather as a question of electoral politics. Will it ruin President Obama’s chances for a second term?

Before I weigh in on the dubious logic that followed, it’s worth noting that Andy Tobias is not simply “a writer and longtime Democrat,” as his bio at the end of the piece states. He is first and foremost the treasurer for the Democratic National Committee and, as such, the organization’s chief fund-raiser. In other words, he is a Democrat above all else. Where LGBT advocacy falls on his list of priorities is open to question, but fund-raising for the Democratic Party has been his main charge for more than a decade.

In the piece, Tobias proceeded to answer his own question with a series of totally irresponsible doomsday scenarios that have no basis in reality — except maybe if you work for the DNC, have been sent as a messenger for the White House, are still living in the 1990s, or happen to be a wealthy white guy who can wait on securing employment protections for others more vulnerable than yourself.

Here’s the reality, this specific executive order has widespread support among liberals, independents, and even conservatives — totaling 73% of the electorate, based on polling from the Human Rights Campaign. Furthermore, 90% of Americans believe LGBT workers are already protected nationwide by federal laws. Sadly, this couldn’t be further from the truth.

Unsurprisingly, Tobias included none of these statistics in his piece. Instead, he suggested that if you believed there was even a  “5%” chance that the executive order could singlehandedly land Mitt Romney in the White House, that should give you pause.

Translation: If you have even the tiniest doubt in the corner of your mind that standing up for basic fairness in the workplace could hurt President Obama at the polls, then I will enumerate for you all the ways in which your yearning for equality could bring ruin to the nation: We could lose the Supreme Court, health care reform could be dashed, many of the gains in LGBT equality could be rolled back, and the future of the planet will definitely be in peril.

Wow. I have to admit, that’s scary stuff. Karl Rove himself could not have played on your worst fears any better. But I submit this in response: If you think there’s even a 5% chance that Andy Tobias is overselling the consequences that signing this one very popular executive order might have, then perhaps you should ask yourself a critical question: If not now, when?

Tobias suggests that President Obama will sign the executive order “next year,” after being re-elected. Hmm. That sounds familiar. Candidate Obama pledged in writing that he would sign the order once he was elected in 2008. Then his transition team was briefed on that very same executive order, which could have been signed on Day 1 of his presidency. But Obama has taken no such action. Not in 2009, not in 2010, and not in 2011.

Instead, administration officials are now saying they will push for a “lasting and comprehensive” legislative solution in the form of the Employment Non-Discrimination Act. It’s rather convenient, since there’s no plausible way that bill will get through the current Republican-controlled House.

In fact, when the President was asked by The Advocate in December of 2010 why he hadn’t pushed for ENDA during the first two years of his presidency, he said it was because his administration was “focusing on ‘don’t ask, don’t tell.’”

Then he proceeded to tell The Advocate that although it wouldn’t be possible to get pro-LGBT legislation through Congress in the last two years of his first term, he could take executive action to level the playing field for LGBT employees of the federal government.

“Let me just say there are still a lot of things we can do administratively even if we don’t pass things legislatively,” Obama said during the interview. “So my ability to make sure that the federal government is an employer that treats gays and lesbians fairly, that’s something I can do, and sets a model for folks across the board.”

It seems to me that this executive order is exactly the type of thing the president “can do” that would set “a model for folks” nationwide, including employers, city and state governments, and Congress.

Franklin Delano Roosevelt set the same ethic of basic fairness in motion in 1941 when he signed an executive order prohibiting defense contractors from discriminating against their workers based on race. That ideal, set forth by FDR, was built upon through executive actions by every subsequent Democratic president as well as GOP presidents Dwight Eisenhower and Richard Nixon. And it was ultimately reinforced by federal statute in Title VII of the Civil Rights Act of 1964.

The executive order that President Lyndon B. Johnson finally signed in 1965 prohibiting federal contractors from discriminating based on race, color, religion, sex, and national origin works in tandem with Title VII to ensure that working Americans are assessed solely based on the quality of the job they perform when they show up to work every day.

During his ’08 campaign, Barack Obama promised that he would use the power of the executive to ensure the same for LGBT Americans if he were elected president. He then indicated the same intention two years into his presidency. Yet to date he has explicitly refused to the sign the one piece of paper that could guarantee those protections to nearly 25% of the country’s workforce.

Now Andy Tobias is suggesting President Obama will do the right thing upon reelection. Please forgive me for being cynical, but I can no longer place my faith in a pledge that has been twice made and twice broken.

Prior to 2008, I had soured considerably on giving money to the DNC based on what had proved to be the party’s total inability to produce any positive federal gains for LGBT equality as well as other progressive issues. However, in 2008, I did donate to Barack Obama, believing him to be a different kind of politician.

Fortunately, some significant gains have been made under his watch. And the “don’t ask, don’t tell” repeal has proved to be one of the administration’s most popular progressive achievements — drawing far more public support than health care reform.

That’s why I can only scratch my head about President Obama’s hesitation on this executive order. It could mean so much to gay and, especially, transgender workers – 90% of whom say they experience some harassment in the workplace. And as a younger generation searches desperately for the employment opportunities with which so many older generations have been blessed, basic fairness has become fundamental to their search.

President Obama has already signed 115 executive orders since he took office – helping homeowners to refinance, aiding students with repaying their loans, combating domestic violence in the workplace, and addressing sundry other priorities – but signing one for LGBT Americans is too political “risky,” according to Andy Tobias.

Unfortunately, Tobias substantiated my worst fears: this decision was based solely on what I called “craven election-year politics” a couple weeks ago upon learning of the announcement.

So as President Obama continues to campaign for reelection on his “We Can’t Wait” initiative – in which he is employing his executive powers to help alleviate the ills that other Americans face – I am left to wonder: How long must LGBT Americans wait?

Jonathan D. Lewis is an investor, philanthropist, civil rights activist and the president of Jonathan Lewis & Associates, an independent design, development, and project management consulting firm.