On Pressure And The Obama Administration

It's faint praise to say that the Obama Justice Department surpassed expectations by not comparing same-sex marriage to pedophilia and incest anymore, but that's basically what John Aravosis is offering with respect to the Administration's latest brief on DOMA. As Aravosis says, in the end, they're still defending discrimination, but they are doing it with a recognition that the President does not support the law and wants it repealed. There's a fair question over whether the DoJ could just not defend the law, but it would conjure up the Bush era, when they simply ignored whatever laws they felt like ignoring.

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

The larger point here is one about pressure. The Obama DoJ made a huge mistake with their initial, hostile brief on DOMA, and it enraged the LGBT community, who promptly reacted in very strong terms. Since then Obama has been trying at various points to make things better, going further and further each time. At Netroots Nation, Valerie Jarrett said the President is committed to repealing DADT and DOMA, without any weasel words. The Administration made a bad decision, got a huge amount of pushback, and responded in favorable ways. That doesn't mean gay rights advocates will end their pressure, nor should they until the actual repeals are signed and gay rights are advanced. It means that they've learned how pressure works with this Administration. We could all learn from that.

A Second Chance

The state of Massachusetts upped the ante in the fight over same-sex marriage by suing the federal government over its DOMA policy.

Massachusetts, the first state to legalize gay marriage, sued the U.S. government Wednesday over a federal law that defines marriage as a union between a man and a woman.

The federal Defense of Marriage Act interferes with the right of Massachusetts to define and regulate marriage as it sees fit, Massachusetts Attorney General Martha Coakley said. The 1996 law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.

Massachusetts is the first state to challenge the federal law. Its lawsuit, filed in federal court in Boston, argues the act "constitutes an overreaching and discriminatory federal law." It says the approximately 16,000 same-sex couples who have married in Massachusetts since the state began performing gay marriages in 2004 are being unfairly denied federal benefits given to heterosexual couples.

True, Massachusetts is the first state to challenge DOMA, but several individuals have chosen to do so. And the Obama Justice Department's brief in that case was basically the touchstone to seething in the gay community over the White House disrespecting their civil rights. Just yesterday AIDS activists shut down the Capitol Dome over a broken promise from Obama on needle-exchange programs.

It appears that Obama will have an opportunity, at some point, to submit a new brief and right this wrong. I hope he takes it.

The Big Gay Olive Branch

Honoring the 40th anniversary of Stonewall while transparently pleading for time and faith from key supporters who have begun to abandon him, yesterday the President held a big gay party (not my words) and gave a pretty speech in an attempt to placate the LGBT community. If Joe Sudbay is any indication, it didn't work:

Also, your president wants you to know that unjust laws must be overturned. Some day. The crowd loved that one too. One might forget that the Obama administration defended the Defense of Marriage Act law recently. They not only defended it, they defended it in a way that demeaned and mocked same-sex marriages by invoking incest and pedophilia. But never mind.

Obama also told us that some would deny us full equality. Um, that would include him. He doesn't support marriage equality -- and his words are being used against our efforts to achieve those rights. But again, never mind.

The President tells us that he's looking for a "practical" solution to Don't Ask, Don't Tell. (We've also heard the solution has to be "durable" or "sustainable.") But, it has to be an Act of Congress. It really really really really has to be an Act of Congress and not a stop-loss order that could achieve the same thing by executive order immediately. It's too bad that in the meantime two gay service men and women are kicked out every day. But hey, we're a nation at war. And, for some reason it means that we should have fewer, and not more, Arabic linguists. See, we're going to continue to ruin the lives of people who want to serve their nation, but, in the long run, that's okay. Because we're perpetually at war. But, someday we'll have a "practical" or "durable" or "sustainable" solution. Although, it is funny how how "practical" and "durable" and "sustainable" weren't talking points on DADT during the campaign. (Search for those terms in Senator Obama's Statement on Don't Ask Don't Tell from November 2007.) They sure are now that Obama is dragging his feet on every major campaign promise to the gay community.

All in all, the president gave a very eloquent speech. But, you know what, we've heard those speeches already. He's the president now, not some candidate. He can do more than talk. And so far, he's chosen not to, and made up some pretty flimsy excuses to justify his action. And, while many of the so-called gay "leaders" in the East Room may be assuaged and bought off by the promise of champagne and a heartfelt "God bless you" from the man who promised much, lots more people are mad as hell and starting to think they're being taken for a ride.

Lt. Col. Victor Fahrenbach, about to be discharged by the Air Force under DADT, actually showed up to the big gay party, and spoke directly to the President. He discussed the meeting with Allison Stewart last night.

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Stewart correctly locates the outrage from the LGBT community back to that terrible DOMA brief linking homosexuality to incest and pedophilia. And Fahrenbach breaks some news here - that Obama basically told him the senior leadership in the military has misgivings over repealing DADT, and that this will take some time to smooth over. If that were the only obstacle, the community would probably understand. The DOMA brief really fractured the goodwill here, and Obama should have apologized for it today. Hendrik Hertzberg has a good rundown of the whole dispute.

What should wake up this President and the Democratic Congress to the need for full civil rights for all is this almost complete reiteration of Stonewall, at a gay nightclub in Fort Worth, Texas, THIS WEEKEND. Forty years after Stonewall, gays remain second-class citizens on far too many fronts. While Congress is making positive sounds on moving key gay rights legislation like extending the Employee Non-Discrimination Act for LGBT members, providing health care benefits for same-sex couples who are federal employees, and repealing DADT. But these sounds must be accompanied with action, and the full and active support of the White House. The gay community will no longer settle for less.

Changing Standards On Stop-Gap Solutions

The President could end the discharges of gay and lesbian servicemen under the Don't Ask Don't Tell policy today. He could sign out an executive order essentially putting a moratorium on those discharges, or he could even just issue a change in implementation to the policy at the Defense Department. 77 members of Congress signed a letter to this effect this week, and yet the President maintains that the issue must be tackled legislatively.

The White House has responded to an inquiry from The Advocate about a letter sent from 77 House members Monday urging President Barack Obama to take immediate action to stop the investigations of "don't ask, don't tell" violations.

"President Obama remains committed to a legislative repeal of Don't Ask, Don't Tell, which he believes will provide a durable and lasting solution to this issue. He welcomes the commitment of these members to seeing Congress take action," read the statement.

Of course, an executive order or implementation order could be the first step to such a lasting solution. The President could offer legislative language as he secures the stoppage of implementation, form a blue-ribbon panel to study repeal, and then get the legislative and military machinery working together so that everything is ready for passage. He could have done that on day one. And yet he hasn't. As John Aravosis notes, the President hasn't been such a slave to precedent when it comes to certain immigration laws.

It's another immigration law that unfairly deports the foreign-born spouses of Americans who die in the first years of their marriage. The Obama administration is going to defer enforcement of that law until Congress can fix it in a few years.

Then why not defer enforcement of the HIV ban? Why not defer the deportation of the foreign-born partners of gay Americans? Why not defer enforcement of Don't Ask Don't Tell with a stop-loss order? Why not defer filing anti-gay briefs in support of DOMA? We've been told that in each case it's because "it's the law, and there's nothing President Obama can do when a law tells him what to do." And, Obama also adds that it would be inappropriate to order a stop-gap solution now, short of a full legislation fix. Same thing for health benefits for same-sex couples who federal employees. Remember, they said DOMA prevents that.

If the White House was just straight about this from the beginning, if they didn't come up with these unsatisfactory explanations, if they offered a real effort on gay civil rights in the first year, if they didn't rile up the community with a DOMA brief characterized by many as offensive, they would not see a pillar of the Democratic Party in open revolt right now. They had the "gays in the military" disaster they sought to avoid - only from the left. Bad job all around.

Bad Barney

In general, I like Barney Frank. He's important because he's willing to go on television and ridicule Republicans. But he certainly has picked up that Beltway tendency to punch the hippies, hasn't he?

“Off the record, it’s what we call the responsible left,” said one Massachusetts lawmaker. Frank himself was scathing toward both sides, who had often mimicked one another’s arguments that the IMF money constituted a European bank bailout.

“The left and the right live in parallel universes,” Frank told POLITICO. “The right listens to talk radio, the left’s on the Internet and they just reinforce one another. They have no sense of reality. ... I have now one ambition: to retire before it becomes essential to tweet.”

I don't totally disagree that obsessing over $5 billion, far less than 1% of the federal budget, in the IMF loan doesn't make a lot of sense. Of course, antiwar activists really wanted to leverage the GOP opposition to get timelines in the Iraq and Afghan war funding - something Frank and all his Democratic colleagues loved when George Bush was in office. There's no reason that the SOFA deadlines had to be implicit, adding them into the funding request would have given Congress the voice they should have on these matters.

Worse, Frank betrays a certain comfort with parroting the party line of the White House and the leadership here, even when it comes to his own community:

Well, it seems a trip to the Oval Office is all openly gay congressman Barney Frank needs to stab his community in the back. After criticizing the DOJ's anti-gay DOMA brief this morning, Frank did a 180 this evening and lauded the brief, which invoked incest and pedophilia. Frank now thinks the brief is just super.

Frank claims that he gave a newspaper reporter his negative opinion of the brief without actually having read it.

Did you catch that? Barney Frank, our senior gay elected representative, and a lawyer himself, claims that he was giving legal opinions on a legal brief that he hadn't even read. At least Joe and I, who are also lawyers, read the brief before commenting on it. How many other issues has Barney opined on about which he's been knowingly willfully ignorant? (Of course, I don't believe Frank for a minute - he read the brief, but the president got him to recant.)

I am simply astounded. Even more astounding is that Barney's release sounds as if it were written by the White House. Their talking points are all through it, including the bizarre notion that somehow Obama would be as bad as George Bush if he opposed DOMA in court. (Repeating the lie that presidents never oppose existing legislation in court.)

I didn't realize until now what a slave to power Frank has turned out to be. He could use his intellect and rapier wit in an independent fashion, but clearly he chooses to do otherwise. Hope that helps his career arc.

...Lawdork disputes John Aravosis' reading of Frank's remarks, in a somewhat compelling fashion.

Dead Olive Branch

After seriously pissing off gays and lesbians since practically the day after the election, from choosing Rick Warren to deliver the invocation at the Inaugural to making no progress on nearly a dozen initiatives promised during the campaign, from gay marriage to Don't Ask Don't Tell to DOMA to the Employee Non-Discrimination Act, Barack Obama will offer job benefits to federal employees in same-sex relationships as a kind of consolation prize.

President Obama will sign a presidential memorandum on Wednesday to extend benefits to same-sex partners of federal employees, administration officials said Tuesday evening, but he will stop short of pledging full health insurance coverage.

Mr. Obama, in an Oval Office announcement, is expected to offer details about which benefits will be provided. It is the most significant statement he has made on gay issues, and it comes as he faces intense criticism from several gay rights leaders over what they suggest has been a failure to live up to campaign promises in the first months of his presidency.

Mr. Obama will be weighing in for the first time on one of the most delicate social and political issues of the day: whether the government must provide benefits to same-sex partners of federal employees. While he will announce a list of benefits, officials said, they are not expected to include broad health insurance coverage, which could require legislation to achieve.

The initial reaction from some gay rights advocates was mixed.

“Extending benefits to partners of gay federal employees is terrific, but at this point he is under enormous pressure from the gay civil rights community for having promised the moon and done nothing so far,” Richard Socarides, an adviser to the Clinton administration on gay issues, said Tuesday evening. “So more important now is what he says tomorrow about the future for gay people during his presidency.”

There's a backstory to this, as the DNC is planning a fundraiser for a lot of well-heeled gays and lesbians and the Human Rights Campaign just pulled out of it, after the Justice Department filed a fairly homophobic brief defending DOMA in district court. This kind of small-ball maneuver will not mend the rift that has opened through months of disappointment with Obama's reticence to meet his promises.

Unfortunately, federal benefits for gay federal employees is not even one of the eight campaign promises Obama made to our community (there are only seven now on the White House Web site - the DOMA promise went down the memory hole about two months ago).

Joe and I have written about this before. We had predicted that Obama would either give us the hate crimes bill or benefits for federal employees as a means of showing how much he's doing on his gay rights promises, without actually doing anything on any of the eight gay rights promises he made. (And guess what? After the DOMA brief controversy exploded, they suddenly announced plans to do hate crimes in the Senate this week. And now, poof, the bill is dead again until at least August. And remember folks, this is the easy one - it already passed the House and Senate, and survived a Senate filibuster, in the last Congress.)

Who is advising the president of the United States on gay issues? This is beyond belief. These people think we're living in 1993, where our number one issue is getting 2% of the gay population working for the federal government to get some of the benefits that straight employees get. Again, it's nice. And if I were kicking back in my Birkenstocks and joining a few friends to watch Melrose Place, I might think this was a huge deal. But it doesn't compare with Obama having promised to repeal DOMA, repeal DADT, and secure passage of ENDA. There is no progress whatsoever on that front, unless you call Obama continuing to discharge gay service members, and filing hideously anti-gay rehashes of George Bush's old homophobic legal briefs, "progress."

I agree with John Aravosis that Obama and his advisors appear stuck in a 1990s mindset, wary of a Clinton-style flameout on a gay rights issue at a time when same-sex marriage has been made legal in six states and most Americans have moved beyond the culture wars. Who exactly is Obama mollifying by not pressing on gay rights issues? Seemingly, a section of the public that will never vote for him anyway.

Furthermore, these benefits are restricted through the Defense of Marriage Act, and thus will be more symbolic and marginal than thorough.

I do agree that gay rights advocates should hold Congress to the same standard as the President, though obviously the man with the bully pulpit has a great deal of influence. Harry Reid told the Advocate that a repeal of Don't Ask Don't Tell could happen in this Congress, and he should not only be held to that (it was actually a backtrack from a previous statement that a DADT repeal had no chief sponsor in the Senate), but pushed to do it this year. Reid tried to punt to the President by saying "We would welcome a legislative proposal from the White House on repeal so as to provide clear guidance on what the President would like to see and when." You can see the President punting to Congress (I need legislation) and Congress punting to the President (we need legislative language) forever. Pressure must be maintained on all fronts.

No Middle Ground

The Obama Administration won't challenge a legal ruling on gays in the military, but will fight it in the lower courts.

A federal appeals court in San Francisco last year ruled that the government must justify the expulsion of a decorated officer solely because she is a lesbian. The court rejected government arguments that the law banning gays in the military should have a blanket application, and that officials shouldn't be required to argue the merits in her individual case.

The administration let pass a May 3 deadline to appeal to the Supreme Court. That means the case will be returned to the district court, and administration officials said they will continue to defend the law there [...]

White House spokesman Ben LaBolt said the president remains committed to repealing the law "in a sensible way that strengthens our armed forces and our national security" but added: "Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."

There's something to be said for following the law and past precedent. But first, the President could easily put a moratorium on firing gay and lesbian soldiers today, and second, this respect for the law hasn't extended to many, many other policies that the President has overturned. Only in the area of gay rights, it appears, must those laws be followed to the letter.

As Joe Subday notes, the LGBT community is organized and impatient, and these games of "we want to repeal it, but until then we'll follow the law" won't fly for much longer.

There's a case in the pipeline on the Defense of Marriage Act (DOMA) already, which challenges Section 3 of that law. The lawsuit, Gill, et al. v. Office of Personnel Management, et al., was filed in March. The head of the Office of Personnel Management is gay, coincidentally. Will the Obama administration defend DOMA in court, too? Will the gay head of OPM defend DOMA?

If the White House thinks signing the hate crimes bill is enough, which it appears they may do soon, they're wrong. And, a beautiful proclamation about gay pride won't cut it either. The times have changed and the President and his people need to catch up -- fast.

It seems that Obama's fetish for a middle ground actually hurts him here. Either gays and lesbians have the same rights as all Americans or they don't. There's not a "common ground" position to take.

And He Oughta Know

Bob Barr wrote the Defense of Marriage Act, which passed Congress and was signed into law by Bill Clinton in a particularly disappointing moment. Now Barr, who is a born-again libertarian, wants the law that he wrote repealed.

I've wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party's presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA's language reflects one-way federalism: It protects only those states that don't want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws -- including, immigration, Social Security survivor rights and veteran's benefits -- has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, "Decisions about marriage should be left to the states." He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

There you have it. That is what consistent conservatism looks like. Instead of screaming "states rights!" only when it suits him, Barr is practicing what he preaches. His motives may not be exactly the same as mine, but the underlying principle actually is - on issues of self-determination those in a community have the ability to decide for themselves rather than have a decision thrust upon them. There is room for a progressive-libertarian alliance around these core civil liberties issues, and I would expect to see it reach a critical mass every now and again. As for this particular case, the right thing to do would be to repeal DOMA.